State Rail Authority of NSW v Gaudron

[1998] HCATrans 140

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S101 of 1997

B e t w e e n -

STATE RAIL AUTHORITY OF NEW SOUTH WALES

Applicant

and

PAUL EDWARD GAUDRON

Respondent

Application for special leave to appeal

BRENNAN CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 MAY 1998, AT 11.17 AM

Copyright in the High Court of Australia

MR D.E. GRIEVE, QC:   May it please your Honours, I appear with MR T.J. CLARKE, for the applicant.  (instructed by Stone & Partners)

MR J.J.J. GARNSEY, QC:   May it please the Court, I appear with MR B.E. KINSELLA, for the respondent.  (instructed by Harris Fiford Crane)

BRENNAN CJ:   Yes, Mr Grieve.

MR GRIEVE:   In this matter the Court of Appeal purported to apply the decision of this Court in Dedousis in a way in which, in our submission, was plainly wrong.

BRENNAN CJ:   Be it so, should this Court take on, yet once more, this almost intractable statutory provision peculiar to New South Wales?

MR GRIEVE:   In our submission, the answer to your Honour’s question should be “yes”, for this simple reason:  the Court of Appeal’s decision has disseminated a message at large that this Court’s decision in Dedousis means X when, in our submission, that is quite plainly not the case.  The Court of Appeal, in particular Mr Justice Meagher, has disseminated a message to the effect that the - - -

GUMMOW J:   I do not know he has disseminated it.

MR GRIEVE:   Well, he has held - - -

GUMMOW J:   The principal judgment is Mr Justice Priestley’s judgment.

MR GRIEVE:   With which the other two judges agreed.

GUMMOW J:   Yes.  This is a very detailed, if I might say, treatment of the subject.

MR GRIEVE:   Yes, and at the heart of it at application book 52 point 5, his Honour said this, at about line 29:

His evidence before Dent DCJ about this, which Dent DCJ appears to have accepted, shows that until that time he had always thought his father was solely to blame for the accident -

ie, was liable for the accident in some fashion -

and had not been aware of aspects of tortious liability for which the appellant might be responsible collaterally to his father’s involvement in the accident -

et cetera.  Now, your Honours, we submit that that can only mean, contrary to what this Court ruled in Dedousis, that the respondent to this application was unaware at the relevant time of the legal conclusions to be drawn from the events of which he was aware and that is, in our submission, directly in contradiction with what was held by this Court in Dedousis.  The matter, we submit, is - - -

GUMMOW J:   Now, this is not a decision like that appealed from in Dedousis which shut out a claimant.

MR GRIEVE:   That is right.

GUMMOW J:   There will be a trial in this case.

MR GRIEVE:   That is right.

GUMMOW J:   There would not have been one in Dedousis.

MR GRIEVE:   That is right.  In Dedousis a claimant was allowed in by this Court.

GUMMOW J:   That is right.  You want to shut one out so there will not be a trial.

MR GRIEVE:   That is right.  We submit that, conformably with what this Court ruled in Dedousis, a plaintiff must say, “Look, at the relevant time I did not know that there was”, for example, “a device readily available and readily affordable to the defendant which, had the defendant availed himself of it, would have operated to prevent my injury.”  That were, in effect, the circumstances that obtained in Dedousis.  This plaintiff - - -

GUMMOW J:   But why should we get enmeshed in the New South Wales Limitation Act yet again?   It is not only Dedousis, there is a case of Harris.

MR GRIEVE:   I appreciate that, your Honour. 

GUMMOW J:   It seems to obsess the New South Wales litigation profession.

MR GRIEVE:   It is not a matter of getting enmeshed in the Act, it is a matter of correcting a misapprehension about a decision of this Court.  That is what we submit to be the special leave point here.  It is not dissimilar, in our submission, with what occurred - - -

GUMMOW J:   Is this the statement by Justice Meagher?

MR GRIEVE:   Yes.

GUMMOW J:   Is that the one that moves you?

MR GRIEVE:   Yes, and such a statement being expressed in concurrence with the leading judgment in the matter.

GUMMOW J:   Exactly.  Well, if that is taken too far it can be sorted out at some later stage in some other case, I suppose, but I doubt if it will be.

MR GRIEVE:   With respect, can it?  It is rather, in our submission, similar to what happened in Broome v Cassell where it will be recalled that the English Court of Appeal said that what the House of Lords had decided in Rookes v Barnard was per incuriam and unworkable.

GUMMOW J:   That was the whole Court of Appeal under the sway of Lord Denning, was it not?

MR GRIEVE:   Yes, that is right.

BRENNAN CJ:   Well, nobody else apart from Justice Meagher has given assent to the proposition which his Honour expressed.

MR GRIEVE:   We submit that Mr Justice Priestley has effectively gone down that track of saying, “Look, what the High Court said when it said ‘The test is one of ignorance of fact, not legal conclusions’ - the High Court did not really mean what it said, and what one has to look at - - -”

BRENNAN CJ:   One can certainly dispose of that without any difficulty.  The High Court did mean what it said.

MR GRIEVE:   Yes, of course it did and it should say so, we submit.

BRENNAN CJ:   Well, it has said so.  It said so in Dedousis.  If somebody has misinterpreted Dedousis or chooses to misinterpret Dedousis, that is a matter which, in a sense, ought to be rectified by the court in which the expression is found.

MR GRIEVE:   Yes.  One has the difficulty though, so far as judges below that court are concerned, of the existence of confusion.  Judges below that ‑ ‑ ‑

BRENNAN CJ:   Mr Grieve, there is a limit to which this Court can give “after sales services” once it has decided - - -

MR GRIEVE:   I take your Honour’s point.  We have put our point and I do not think it will be improved by elaboration.

BRENNAN CJ:   Yes.  The applicant failed in the District Court and in the New South Wales Court of Appeal in its resistance to an application by the respondent for an extension of the limitation period so as to permit the maintenance of his action against the applicant for personal injuries.  The application was made under provisions of the law of New South Wales which were carefully analysed by Mr Justice Priestley who gave the leading judgment in the Court of Appeal, which appear to be unique to that State and which have already been the subject of consideration by this Court.  Its further consideration is properly a matter for the Court of Appeal of New South Wales.  Special leave will be refused.

MR GARNSEY:   I do not hesitate to ask for costs, if your Honours please.

BRENNAN CJ:   I did not think you would hesitate, Mr Garnsey.  You have nothing to say, Mr Grieve?

MR GRIEVE:   No, your Honour, nothing to say.

BRENNAN CJ:   Special leave will be refused with costs.

AT 11.24 AM THE MATTER WAS CONCLUDED