Superclinics Australia Pty Limited v CES & Ors- Nafte v CES

[1996] HCATrans 277

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S88 of 1996

B e t w e e n -

SUPERCLINICS AUSTRALIA PTY LIMITED

Appellant

and

CES

First Respondent

PA

Second Respondent

HAROLD ANTHONY NAFTE

Third Respondent

RICHARD ROGER DE MONTMARENCY CATTLEY

Fourth Respondent

GARY JOHN BAKER

Fifth Respondent

Office of the Registry
  Sydney   No S91 of 1996

B e t w e e n -

HAROLD ANTHONY NAFTE

Appellant

and

CES

First Respondent

PA

Second Respondent

SUPERCLINICS AUSTRALIA PTY LIMITED

Third Respondent

RICHARD ROGER DE MONTMARENCY CATTLEY

Fourth Respondent

GARY JOHN BAKER

Fifth Respondent

BRENNAN CJ

DAWSON J
TOOHEY J
GAUDRON J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 SEPTEMBER 1996, AT 10.20 AM

Copyright in the High Court of Australia

__________________

MR S.D. RARES, QC:   May it please the Court, in the first matter I appear with MS J.S. GLEESON for the appellant, and I appear with her for the third respondent in the second matter.  (instructed by Minter Ellison)

MR D.J. HIGGS, SC:   If it please the Court, I appear with my learned friend, MR I.J. McGILLICUDDY, for Dr Nafte in the second appeal and in the cross appeal.  (instructed by Tress Cocks & Maddox)

MR C.R. CALLAWAY, QC:   May it please the Court, I appear with MS H.G. MURRELL, SC, and MR B.J.A. SHIELDS. for the first and second respondents in both appeals.  (instructed by McCourt Charlton)

MR P.R. GARLING, SC:   If the Court pleases, I appear with MS I.A. PARSONS, for the fifth respondent, Dr Baker, to both appeals.  (instructed by Phillips Fox)

BRENNAN CJ:   Yes, Mr Garling.  Could I inquire whether there is any agreement at the Bar table as to the order in which counsel should address the Court?

MR RARES:   I think I will go first on the appeal.  I think, then, Mr Higgs and Mr Garling.

MR GARLING:   Your Honours, I support the appeals and oppose the cross appeal.  I had thought I would go after the appellants if that was convenient to the Court.

BRENNAN CJ:   Yes, thank you, Mr Garling.  You have an application?

MR J.A. McCARTHY, QC:   May it please your Honours, I appear with my learned friend, MR J.G. SANTAMARIA, QC, on behalf of the applicants, the Australian Health Care Association and the Australian Episcopal Conference, in relation to an

application to appear ‑ those organisations to appear as amicus curiae in this matter.  (instructed by Makinson & d’Apice)

BRENNAN CJ:   Mr McCarthy, before that application is developed, I should state that I have asked the Senior Registrar to inform counsel that I know Father McKenna, a deponent to one of the affidavits in support of the application to intervene, or to appear amicus curiae, and a number of members of the Australian Catholic Bishops’ Conference. 

We will hear your application first, Mr McCarthy.

MR McCARTHY:   As your Honours please.  Your Honours, a notice of motion was filed some weeks ago in relation to this application.  It is supported by two affidavits; one by Francis John Sullivan, sworn on 9 August 1996, and a further affidavit of Michael McKenna of the same date.  I would move on the affidavit, firstly, of Francis John Sullivan and propose to read that affidavit, your Honours.

BRENNAN CJ:   I think you can take it as being read.  Before you proceed, I should state that the Deputy Registrar has been informed that Dr R.R. Cattley, the fourth respondent in these matters, does not wish to be represented at the hearing of the appeal and will abide any order of the Court save as to costs.

MR McCARTHY:   I move on the affidavit of Michael McKenna, your Honour, and inquire as to whether that affidavit may be taken as read also.

BRENNAN CJ:   Yes, you may take it as being read.

MR McCARTHY:   Your Honours, in those circumstances, I have prepared a submission in short outline in relation to the application to in the notice of motion.  This is as distinct from a submission, if the application is granted, that has also been prepared and is in Court, but is not the document to which I am referring at the present time.

BRENNAN CJ:   Yes, Mr McCarthy.

MR McCARTHY:   May I hand this up to the Bench, your Honours?

BRENNAN CJ:   Thank you.  Copies are available for the other counsel?

MR McCARTHY:   Copies are available to the other parties.  Your Honours, that submission has been distributed to counsel for the other parties presently.  This submission is prepared in the context of the recent application for amicus curiae status in the matter of Kruger v The Commonwealth and the submission addresses the two points that were germane to the decision in that case, that is, that there are matters that go to the decision of the Court in this case that has not been raised by the other parties and, secondly, the direct interest of the applicants in the matters before the Court.  In other words, the parties before you can meet, if I can put it this way, the Kruger test.

I go to the submissions, your Honours.  The Australian Catholic Health Care Association and the Australian Catholic Bishops’ Conference wish to be heard as amicus curiae in respect of two matters.  Neither matter will form part of the cases of the parties.  The first matter ‑ ‑ ‑

BRENNAN CJ:   Would it be more convenient if we simply read this, Mr McCarthy, or do you wish to develop it?

MR McCARTHY:   I wish to develop it, your Honour, but I start by reading it.  If it is more convenient to develop it, I just briefly go through what is in the submission.  The first paragraph outlines the basis of our case.  We say that there are two matters that will not form part of the cases of the other parties.  That relates to the unlawfulness of abortion and, secondly, the likely impact of a proposed head of damages on a large part of the health care economy in Australia.

In particular, on page 2 we advance the submissions that Davidson and Wald, which are two decisions on which the decisions in the Court of Appeal are based, are wrongly decided and should be overruled.  The test for lawful abortion set forth in each of these cases is not supported in principle and in particular is not supported by the so‑called general defence of necessity.  If the law does recognise a general defence of necessity, it does so in terms which do not justify its application in cases such as Davidson and Wald.  The application of the defence of necessity in those cases has either ignored or suppressed the anterior question of the legal rights owed to the unborn child.  The establishment of a cause of action for the lost chance of having an abortion will create the most severe practical problems for the conduct of health care services by Catholic institutions.

The Catholic hospitals deliver a large part of the health care in Australia.  Their services are available to all women regardless of religious affiliation.  Those hospitals care for pregnant women.  They diagnose pregnancy, they detect foetal abnormality.  However, Catholic hospitals do not counsel terminations of pregnancy, nor do they carry out abortions, nor do they refer women to institutions where such terminations are carried out.  To do so would be to violate the most basic beliefs of Catholics on human life, human dignity and the equality of persons.  If the law in Australia recognises the existence of a cause of action arising out of the lost opportunity to provide an abortion, the law will imply the existence of a positive duty to advise every pregnant woman about the possibility of an abortion.  Catholic hospitals may not be able to continue providing for the care of pregnant women.

The Court should not recognise a claim for the loss of an opportunity to terminate a pregnancy where it is not lawful to terminate.  Statutes make terminations of pregnancy unlawful.  By analysing the word “unlawfully”, various judges have interpreted those statutes in such a way as to permit certain terminations.  Those judges have interpreted the expression “unlawfully administers” to imply the existence of a category of lawful abortion.  Those interpretations depended upon the so‑called defence of necessity.

However, the status and ambit of the defence of necessity in the common law remains indeterminate but is certainly not a source of construction or interpretation of criminal statutes.  Final appellate courts in England, Canada and New Zealand have found the defence of necessity to be inconsistent with fundamental principles of the common law.  To the extent that the appellate courts have given any recognition to the defence of necessity, the rulings of necessity in abortion cases are inconsistent with those judgments.  Moreover, the judgment of Kirby ACJ in the Court of Appeal propounds a different interpretation which seems entirely detached from that defence.

The High Court should not recognise a cause of action or a head of damages which has its foundation in the doctrine of necessity when careful analysis of fundamental legal principle discloses that that foundation to be either non‑existent or uncertain.

The applicants have a substantial interest in the outcome of this litigation.  Those interests include legal duties and responsibilities which are direct and immediate in terms of the functioning of Catholic health care facilities and the legal framework in which they operate.  These facilities and centres include family counselling and advice centres throughout Australia, such as Centacare, sponsored by Catholic bishops.  The reference there is to Kruger v Commonwealth.  Kruger is attached to these submissions, and the reference there is to page 10 of those proceedings.  The paragraph that is being referred to is the quotation in the middle of the page from Reg v Ludeke, where there is the reference to the quote above from Mr Justice Dixon, as he then was, about a party having a particular right or power in which they are concerned and not merely to intervene to contend for what they considered to be a desirable state of the general law.

The applicants wish to protect and maintain a legal framework for their activities in which it is not a legal duty on providers of medical services to pregnant women to advise on the possibility of abortion.  And that is the reference at page 10 of the annexure to Australian Railways Union v Victorian Railways Commission.  The applicants in their submissions may assist the Court in arriving at the correct determination of the case and such assistance may not otherwise be provided by the parties to the proceedings.  The reference there is to the judgment of his Honour the Chief Justice in the Kruger Case which is at page 12 and, in particular, to the words at about 20:

As to his application to be heard as amicus curiae, he fails to show that the parties whose cause he would support are unable or unwilling adequately to protect their own interest or to assist the Court in arriving at the correct determination of the case. 

There is similar opinion in a recent decision, which is also annexed to our submission, of the Court of Appeal in the case of National Bank v Hokit on the question of amicus curiae and the reference there is to page - - -

GAUDRON J:   Page 4?

MR McCARTHY:   Page 5.  For instance - to continue our submission - in respect of the status of the defence of necessity in the common law, the applicants draw the Court’s attention to the reasoning of Justice Dickson in the majority in a Canadian Supreme Court case of Morgentaler v The Queen:

On the authorities it is manifestly difficult to be categorical and state that there is a law of necessity, paramount over other laws, relieving obedience from the letter of the law.  If it does exist - - -

BRENNAN CJ:   Now, this aspect of it goes really to the merits of the case, does it not?

MR McCARTHY:   It does, but it is some of the matters that will not be developed in relation to this case unless these matters are put.  They are not going to be put by the other parties, and what we are drawing your attention to, your Honours, is that in final appellate courts in other parts of the common law world the status of the defence of necessity has been seriously questioned.  Its application in relation to abortion cases has been specifically dealt with and the other areas that one would look to such as the textbooks and text writers establish that the status of the defence is only, in terms of law, obiter dictum, and as well, in the only major case that has considered Davidson at appeal level, the very essence of the Davidson balancing in terms of the necessity test was disapproved and not followed and that is the reference at paragraph 7 of the written submissions.

Your Honours, the applicants, in terms of their direct interest in this decision and on the principles that support the hearing of an amicus curiae, submit that they qualify on both grounds.

DAWSON J:   What is their direct interest?

MR McCARTHY:   The direct interest is the Australian Catholic Health Care Association has the responsibility for Catholic hospitals or as made of an association of those who conduct health services in the way set out in the affidavit of Mr Sullivan, your Honour, and they will be affected by any decision of this Court as to the duties of care ‑ ‑ ‑

DAWSON J:   I would have thought that was an indirect interest.  No rights of theirs are going to be affected by this litigation.

MR McCARTHY:   The manner in which they conduct those operations would be affected, your Honour.

McHUGH J:   But how?  As I understand your submissions, your interest is based on the assertion that if a cause of action arising out of a lost opportunity to provide an abortion arises, the law will imply the existence of a positive duty to advise every pregnant woman about the possibility to have an abortion.  Now, that does not follow and it is not an issue in this case.

MR McCARTHY:   Your Honour, if it is the case that information is - if a provider of health services - if the determination of the Court of Appeal was upheld - would thereafter be in a situation that if information about an abortion was not provided to a pregnant woman ‑ ‑ ‑

McHUGH J:   That has got nothing whatever to do with this case, Mr McCarthy.  That is not an issue in the case at all.  The issue in this case is whether or not the respondent was wrongly advised about the state of her pregnancy.

MR McCARTHY:   But that is not how it is defined by either Justice Kirby or Justice Priestley, your Honour, in the court below as to what they thought they were doing.  They thought they were ruling on the lawfulness of abortion in those situations.  It was one of the central decisions that they thought that they were making.

McHUGH J:   That is another proposition that seems to me to have led to some confused thinking.  Abortion in this country is not an unlawful act, at least in this State.  The Crimes Act makes it an offence for certain people with a particular state of mind to do certain acts.  There is no statute in this State that I am aware of, in New South Wales that I am aware of, that says abortion is an unlawful act.

BRENNAN CJ:   That is a proposition which I gather you wish to canvas.

MR McCARTHY:   I would, your Honour.  I would wish to canvas all of those propositions, and what one can be assured of is that they will not be canvassed and the fundamentals in relation to the very nature of the legal principles that give rise to the expressions that have just been put forward will not be canvassed unless these matters are put before the Court, and it is the case in the court below that they saw the lawfulness of abortion under those very statutes as being at the very centre of this case.  The basis on which that is put forward is said to be a series of decisions, one of a District Court judge and the other of a judge in the Supreme Court of Victoria, that are not binding on this Court, were not binding on the Court of Appeal, and are not going to be considered.  There is a framework of the law of necessity that binds those decisions that is not going to be analysed.

McHUGH J:   But, Mr McCarthy, Wald’s Case has stood in New South Wales for 25 years.  You would come along and ask us to reverse a decision which has stood for 25 years and which has, no doubt, been acted on on numerous occasions.  Apparently there were 29,000 abortions in New South Wales in 1990 alone.  If your submission is right, a large proportion of those would be criminal offences if this Court retrospectively declared those decisions are wrong.  The Crimes Act of New South Wales has been changed year after year, and the legislature has not altered the decision in Wald.  Now, it seems to me, with great respect, that the legislature is the place where you should be addressing your arguments.  You are asking us, in civil proceedings, to make a ruling on the lawfulness or otherwise of abortion.

MR McCARTHY:   That was done in the court below, your Honour.

McHUGH J:   No, it was not.  The court followed a line of authorities.

MR McCARTHY:   Your Honour, in the judgment of Acting Justice Kirby, he extended the test.  That was the basis on which he formed his judgment.  He did not just act on the basis of what was said in Wald, he extended that, and that is one of the matters that is before this Court at this very time.  That particular judgment is in issue and the whole framework on which any basis of necessity can be put forward in relation to what is or is not lawful under that statute is in issue before this Court.  The law has been changed already, your Honour.

It is not a matter that what was done before is there.  This case raises the very issue as to what is the proper interpretation of sections 82 and 83 of the Crimes Act.  It is not the case simply that it is the matter that the decision below has been accepted.  It is clear on its face, in that judgment, that that is exactly what the Acting Chief Justice in the court below did not do.  He did not accept that, he extended it.

DAWSON J:   But, Mr McCarthy, you seem to be getting on to another point here, that is, that unless you are given leave to appear as amicus curiae there will be something which will not be put to the Court by the parties.

MR McCARTHY:   There will be.

DAWSON J:   I was asking you about something different, namely, whether the interest that the ACHCA has is not an indirect interest rather than a direct interest.  I think that is a different point.

MR McCARTHY:   Your Honour, in relation to direct, “direct” means, as I had understood what was being put by his Honour Mr Justice Dixon, was that, as a result of a particular ruling, a party would have been affected in the way that they would be able to conduct ‑ ‑ ‑

DAWSON J:   Their rights would be affected.

MR McCARTHY:   Their rights would be affected, or their duties would be affected, your Honour, and in that sense they would be affected.  I think it is closer to “direct” than “indirect” in that way, that is, that they are the providers of health care, information and facilities to pregnant women, and their position could be ‑ if the position in the court below is upheld, their position as providers would be directly affected.  In other words, the duty of care would be posited on them or a duty of care would be posited on them.  That is a direct effect, your Honour; it is not an indirect effect.  It is indirect ‑ ‑ ‑

McHUGH J:   What is the duty that you claim?

MR McCARTHY:   The duty would be to inform a pregnant woman of the possibility of obtaining an abortion.

McHUGH J:   But that is not an issue in this case.

MR McCARTHY:   It is an issue in this case, your Honour.

McHUGH J:   Well, would you show me where it is an issue in this case?

MR McCARTHY:   Well, your Honour, in relation to the judgment ‑ does your Honour mean in relation to the judgment of the court below?

McHUGH J:   An issue in the case that we have to determine.  We have to determine that there is a positive duty on a doctor to advise a pregnant woman about the possibility of an abortion.  Would you find the passage where that arises?

MR McCARTHY:   There are an accumulated series of remarks that are made that do go to that.  In the judgment of ‑ your Honour, I do not have the appeal books in this case and I am reading from the New South Wales Law Report ‑ ‑ ‑

GUMMOW J: 38 NSWLR 47.

MR McCARTHY:   Thank you, yes.  At page 57 there is this in the judgment of Justice Kirby:

In the way the appellants’ claim was pleaded, and the case conducted at trial, the central question in the appeal was therefore whether the first appellant could establish, on the balance of probabilities, that, if she had not been deprived of the opportunity, she would successfully have obtained a termination.  The implications of the possibility that a termination might have been unlawful must be examined.

McHUGH J:   That has nothing whatever to do, Mr McCarthy, with great respect, with a law implying a positive duty to advise.  On the facts of this case, this woman went along, sought advice as to whether she was pregnant and it was her intention if she was pregnant to have an abortion.  The case does not in any shape or form raise any question as to whether or not doctors or hospitals have a positive duty to advise women about the possibility of abortion.  That being so, I do not see what interest you have got in these proceedings.

MR McCARTHY:   Your Honour, on the Court of Appeal’s decision the loss of the opportunity to seek an abortion was said to be a compensable ‑ ‑ ‑

McHUGH J:   I can see that your clients have an “interest” in that particular issue, but that is not the sort of interest that the doctrine of amicus curiae speaks about.  You have no interest that is affected in that way.

MR McCARTHY:   Your Honour, one can only put it in two ways.  First of all, that that result certainly affects health care providers.  Secondly, it is not far from that.

McHUGH J:   Well, it certainly affects them because, if there is a decision that they negligently advised about pregnancy, it will have consequences on your clients as well as everybody else that is in the health care business.  But that in itself is not a ground for allowing you or anybody else to come in.

MR McCARTHY:   Your Honour, it goes wider than that.  It is only a short step from that to the position where a pregnant woman claims that she was deprived of that opportunity because the provider she was dealing with did not say anything to her about abortion whatsoever and in that way she was deprived of her opportunity.

McHUGH J:   If that happens, we will have another case about that, then you may be on firmer ground for intervening, but that is not this case.

MR McCARTHY:   Your Honour, it is only a very short step to that, and in any event the first part is certainly - and your Honour has already said you would see it that way, that in relation to the provision of health care in these circumstances that are here now, of course they are directly affected, that they could be in the same situation as any of the respondents in this case.  In those circumstances alone, your Honour, if there are things that would go to protect our interests and it is not being put, that is one of the grounds on which the Court considers that there is scope for an amicus curiae, there is a scope for other matters concerning the administration of justice that can be brought before the Court.  It is not the case that, because there is an argument, an area, that will affect us, that we are excluded if it is that in determining that there are things that are not going to be put forward.  That is exactly what, in our submission, your Honours, Justice Dixon was getting at in the Railways Commission judgment.

BRENNAN CJ:   There are two problems, are there not?  One is leave to intervene, the other is amicus curiae.  The tests perhaps are different for the two statuses.  We have not as yet heard the way in which the duty of care is to be enunciated in this case, but I think we do understand the basis of the argument that you seek to put.  For ourselves we have each respectively been able to read the judgments in the courts below.  Is there anything further that you think might develop your argument on either of these grounds of intervention?

MR McCARTHY:   Yes, your Honour.  I rely on that and on the matters that were put in the affidavit concerning this.

DAWSON J:   And you are seeking to appear amicus curiae.  That is what you are seeking.

MR McCARTHY:   Yes, the extent of that would be in the hands of the Court.  We have prepared a written submission.  It is in the Court.

DAWSON J:   Yes, but I just want to know the basis on which you make your application, to make sure.

BRENNAN CJ:   But it is amicus curiae rather than intervention?  I mean, if intervening, then there is all the status of the parties to be considered.

MR McCARTHY:   Yes.

BRENNAN CJ:   The question of costs and liability for them.

MR McCARTHY:   Yes, we would seek the status of amicus curiae.  If the Court was of the opinion that there was an appropriate position in this that was wider than that and that was an intervener, your Honour, we would accept that also as being the position and would accept any penalty or other arrangement in relation to costs concerning that.

BRENNAN CJ:   Yes.

MR McCARTHY:   But it is essentially in relation to amicus curiae on the issue of the unlawfulness of abortion and for the purpose of presenting the Court with a written submission.  We would not be seeking to detain the Court for any length in relation to oral submissions in the matter, but that would be a matter for the Court, but the essential submissions that we would wish to put have been reduced to writing and are in a submission and are in Court and my learned junior reminds me we do not not only not cover issues that would be covered by the other parties, we do not trench upon the facts

or the particulars in relation to the case.  In other words, it goes to the administration of justice to the framework in which the statute ‑ ‑ ‑

BRENNAN CJ:   Is this the proposition that you seek to be an amicus on the footing that you would address propositions of law only?

MR McCARTHY:   Yes.

BRENNAN CJ:   And those are propositions of law which, as you see it, (a) arise on the judgments in the courts below and (b), are not addressed by the parties?

MR McCARTHY:   Yes.

BRENNAN CJ:   I see.

MR McCARTHY:   They are the submissions for the applicants.

BRENNAN CJ:   Yes, thank you, Mr McCarthy.  Now, Mr Callaway, you would be the one, I would presume, who would be most interested to oppose this application, if any?

MR CALLAWAY:   Yes, your Honour.  In the first instance we say we oppose the application.  If the Court wishes to hear argument in relation to that, I am prepared to.

BRENNAN CJ:   Yes, we wish to hear argument in relation to that.

MR CALLAWAY:   What we say, your Honours, is that this is a case between five citizens and a clinic.  It is a case that was fought for six days at first instance.  There were two Queen’s Counsel involved.  The question of the rightness or wrongness, for the want of a better description, of Wald was canvassed, it was looked it, and all parties decided that it was the law and there was no point taken in relation to it.

DAWSON J:   That means that in these proceedings there will be no submissions put as to the correctness of Davidson and Wald.

MR CALLAWAY:   Precisely, and that was six days of trial.  We then had, I think, two, maybe three days in the Court of Appeal, and that is reflected in the judgments that the rightness or wrongness of Wald was never in issue.

DAWSON J:   There is no question that illegality will be raised as an issue?

MR CALLAWAY:   Certainly.  That is a live issue.  In fact, that is how we lost at first instance, but ‑ ‑ ‑

DAWSON J:   Very difficult to consider illegality without having a look at Wald and Davidson, is it not?

MR CALLAWAY:   One has to look at it, but nobody is saying that the judgment ‑ ‑ ‑

DAWSON J:   You are not obliged to question the decisions, but if you do not, or none of the other parties do, then it will mean that an argument which might be put will not be put.

MR CALLAWAY:   The argument that is sought to be put, as I understand it, from Mr McCarthy is that Wald was wrongly decided, not that, within its own terms, it provides a means whereby abortion in this State can be unlawful.

McHUGH J:   That is the consequence of his argument.  I mean, one factor that you have got to face up to on this application is this, that although this is litigation between parties, part of this Court’s function is to declare the law for the nation and that means the Court has got to look at issues that go beyond, or sometimes, the particular parties and here it is said that on the judgments in the court below there is a fundamental issue about the unlawfulness of the act which gives rise to the damages and we are going to hear no argument on it.

MR CALLAWAY:   That is not so, your Honour, with great respect.  You are going to hear argument as to whether or not the act was unlawful, but you are going to hear that argument against the background of the law that has been so in New South Wales for ‑ ‑ ‑

McHUGH J:   I appreciate that, but Mr McCarthy’s point is that there is just no ground for movement because, as a matter of law, this was an unlawful act.  It would have been an unlawful act in any circumstances and that in so far as Wald might give some foothold for your argument, it was wrongly decided.  Why should not the Court, in those circumstances, hear an argument which it is not going to hear otherwise?

MR CALLAWAY:   Your Honour, first of all, the direct interest point.  I had not come back to that.  There is really no direct interest that this applicant can rely upon.  As your Honour pointed out to Mr McCarthy, what obligation arises that does not already exist in relation to advising pregnant women as to what they may or may not do?  If there is to be an attempt to litigate the correctness or otherwise of Wald, this is not the forum in which to do it.  There is nothing to prevent any person that Mr McCarthy represents from launching a private prosecution against any medical practitioner that they see fit or they regard as having performed an abortion, and they can run that and run that argument to its full, but the parties in this case are ‑ ‑ ‑

GAUDRON J:   That is a little unrealistic, is it not, Mr Callaway?  First of all, there is the question of evidence, obtaining evidence, and, secondly, you have a DPP in New South Wales with a discretion whether or not to prosecute.

McHUGH J:   In addition, courts would follow the existing authorities and there is no appeal against an acquittal.

MR CALLAWAY:   There can be an appeal in the sense that ‑ ‑ ‑

McHUGH J:   Well, section 5 ‑ ‑ ‑

MR CALLAWAY:   Yes, that could happen.  If the point is as important as it is now made out to be to interfere, in effect, with the litigation between these parties, to interfere, then it would be far less incommoding to ordinary citizens to launch a private prosecution.  There is no need for the DPP to take any part in it, in answer to Justice Gaudron, and deal with the matter fair and square then on what would be a real issue.

McHUGH J:   I think Justice Gaudron’s point is that at the indictment stage the DPP is necessarily involved and this would have to be dealt with on indictment.

BRENNAN CJ:   Further than that, the decision of the Court of Appeal in this case would presently represent the law in New South Wales, would it not?

MR CALLAWAY:   With great respect, in what respect?

BRENNAN CJ:   In respect of the application of the Wald test.

MR CALLAWAY:   No, your Honour, because it was not in issue before that court, just as it is not in issue before this Court.  It was accepted by three Queens Counsel that Wald was correctly decided, and the case was fought on that basis.

McHUGH J:   But there is a passage in the judgment of Justice Kirby in which he extends the application of ‑ ‑ ‑

MR CALLAWAY:   That is a matter which we are prepared to deal with, and with great respect, if you, and we are getting into the case itself now, your Honour, but the argument that there has been an extension, really is a matter of semantics.  I can deal with that when the case runs.  I do not want to take unnecessary time in the opposition to this application.  But, our points are there is no direct interest; there is, indeed, no basis to assume that if the parties to this case saw, or assumed, or thought, or felt or decided that Wald was wrongly decided, that they would not have taken that point, and they have not done it.  That should be persuasive of itself for this Court in a matter that relies upon, to some extent, the exercise of a discretion.

TOOHEY J:   There is nothing in the statement of claim, as I read it, that asserts any duty of care in respect of any matter other than the diagnosing of the pregnancy, is there?

MR CALLAWAY:   Precisely.  As Justice McHugh put earlier, that is ‑ ‑ ‑

TOOHEY J:   That may not be the end of the point.

MR CALLAWAY:   That is the starting point of our case.

TOOHEY J:   Yes.

MR CALLAWAY:   As it develops, there is ample opportunity, or there was, for those that have been in opposition to us all this way to put forward anything which suggests that Wald was wrongly decided, and they have not done so.

TOOHEY J:   I was not thinking so much of whether Wald was wrongly decided or otherwise.  But the way in which the plaintiff’s claim was put was a failure to diagnose that she was pregnant, not a failure to provide her with information or advice, but the footing that she was pregnant.

MR CALLAWAY:   I am sorry, I missed the corollary.  Yes, that is precisely so.

BRENNAN CJ:   What was the duty that was said to have been broken by the failure to diagnose correctly?  A duty to take reasonable care to avoid what?

MR CALLAWAY:   We are getting into the case now, your Honour, but ‑ ‑ ‑

BRENNAN CJ:   I am just asking for what - - -

MR CALLAWAY:   Well, I just have to marshal my thoughts on that point.  The doctors owed a duty of care to the plaintiff to advise her whether or not she was pregnant.

BRENNAN CJ:   No, no.  What is the damage which, being foreseeable, gives rise to a duty of care to avoid?  I mean, there is the duty of care to take reasonable care to avoid something - a risk of something?

MR CALLAWAY:   As pleaded, it is to enable the plaintiff to terminate the pregnancy within time and within the law.

TOOHEY J:   The way in which it is pleaded is on page 9, I suppose, paragraph 22 of the statement of claim, that by reason of the breaches of duty of care the plaintiff was deprived of the opportunity of terminating her pregnancy.

MR CALLAWAY:   That is right.  That is certainly how it is pleaded, and that was picked up by the learned President as being different from the loss of an opportunity to terminate the pregnancy, which we would be arguing, in the fullness of time, that was co‑existent with that particular manner in which the allegation of breach was alleged, because there would be other damage which flowed from the negligent failure to diagnose the pregnancy, apart from the loss of the opportunity to have a termination.  Now then, the question then arose, of course, whether or not a termination would be unlawful, and that is the nub of this case, as I understand the way the appellants are putting their case.

GUMMOW J:   Did that arise on the pleadings?

MR CALLAWAY:   I am sorry?

GUMMOW J:   Did any question of illegality arise on the defences?

MR CALLAWAY:   No.  Your Honour, that was the first occasion we were ambushed.  It was not pleaded.

GUMMOW J:   Yes.  I cannot find it, that is why I am asking.

MR CALLAWAY:   It is not there.  Your Honour, it was not pleaded.  Mr Justice Newman, perhaps in another context, raised it on day two, declined my request that the defendants be required to plead it, and the case went on with a short adjournment and - - -

DAWSON J:   This Court is not going to be bothered by a pleading point at this stage though.

MR CALLAWAY:   No, your Honour.  I am not taking any point on the fact that it was not pleaded but I do take the point that the correctness of Wald was never put in issue, and it must have been considered.  So, all that this Court would be doing would be giving somebody else, in the form of this religious organisation, or the two of them, the opportunity to argue the same matters that could have been put and were decided not to have been put, apparently, by my opponents, three of whom now are silk.  So, your Honours, we just submit that in this case, the case between an unmarried mother and three medical practitioners in a clinic, we should not be put into the position of having yet another opponent on what is now - there was a leave application and nothing was said there, of course - eight ‑ ‑ ‑

GUMMOW J:   If this question of illegality was not pleaded and if somehow one does not worry about that, was it ever framed in any form in writing?

MR CALLAWAY:   Never framed?

GUMMOW J:   Yes?

MR CALLAWAY:   No, it was not framed.

GUMMOW J:   It has just become some sort of moot debate ‑ ‑ ‑

MR CALLAWAY:   It was picked up like a scrum half, your Honour, and it was - - -

GUMMOW J:   If the judge mentioned it, what happened then?  Did some party pick up the suggestion?

MR CALLAWAY:   All parties picked up the suggestion and it became the biggest part of the case, as we saw it, and as argued in the Court of Appeal also.

GUMMOW J:   Yes.

MR CALLAWAY:   The learned President delivered a judgment which goes into several pages in the appeal book which I can take your Honour to in the fullness of time dealing with the fact that it - - -

GUMMOW J:   I am just asking whether there was any attempt to specificity at any stage?

MR CALLAWAY:   No, there was not, none whatsoever.

GUMMOW J:   There might not be one here, either.

MR CALLAWAY:   Well, your Honour, I am to blame to some extent because I did say that we would cope with the matters raised and we let the case proceed.

TOOHEY J:   Really, when you read the judgment of the primary judge, illegality is not featuring as a defence to the duty of the care that is alleged.  It surfaces as bearing on the question of damages, does it not?  In other words, that there are no damages that could be recoverable by reason of the loss of an opportunity to terminate the pregnancy.

MR CALLAWAY:   Yes.

TOOHEY J:   Is that a fair reflection of the judgment at first instance?

MR CALLAWAY:   That is a fair reflection, except that my recollection of what Mr Justice Newman said was that, he, in effect, found that there was no cause of action available because of the illegality.  It is not altogether clear that in effect they were not entitled to sue.

TOOHEY J:   It is a bit hard to see how illegality could be relevant to a duty of care confined, if it was confined, to a duty of care to diagnose pregnancy, and a breach of that duty.

MR CALLAWAY:   It is also a breach of contract which was raised.

TOOHEY J:   Yes, well, it is perhaps easier to understand in a context of a breach of contract.

McHUGH J:   Your pleading was not limited to diagnosis of pregnancy there, though, was it?  If you look at paragraph 13, particular (c) on page 5, one of the breaches of duty was:

Failing to heed the First Plaintiff’s request that pregnancy be diagnosed as soon as possible so that the First Plaintiff could terminate any pregnancy.

So, termination of pregnancy was certainly put up.

MR CALLAWAY:   There is no doubt about that, your Honour, and there were two ways of looking at it.  One was that that was, in effect, the whole area of damage.

McHUGH J:   Yes.

MR CALLAWAY:   The other way was that there was other damage which was obvious and is referred to but that also the loss of an opportunity to terminate.

McHUGH J:   Yes.

MR CALLAWAY:   Now, they are alternatives which emerge.

TOOHEY J:   I think really the crux of what the primary judge decided appears at page 400 at line 26, when he says:

Accordingly I am of the view that the common law does not categorise the loss of an opportunity to perform an illegal act as a matter for which damages may be recovered.

He then goes on:

If a breach of duty does not result in a plaintiff suffering damage according to law, the plaintiff has no remedy in tort.

Now, there is a shift there from the damage, as it were, to cause of action.

BRENNAN CJ:   I think we have understood what - at least we can understand the areas that will be developed in the course of argument by looking at the judgments.  The argument that is put against you, you have heard, is that there will be no argument contrary to Wald if that issue should arise.  Your statement, as I understand it, is that Wald was agreed and therefore there should be no question about that.  Is that a fair summary?

MR CALLAWAY:   Yes, your Honour, and there is no direct interest in this particular ‑ ‑ ‑

BRENNAN CJ:   No direct interest, yes.  Mr Rares, do you wish to be heard on this application?

MR RARES:   Your Honours, with respect, we adopt what was said by Mr Callaway so far as the conduct of the trial was concerned relating to Wald’s Case.  There was no issue put before the trial judge and, as Justice Priestley says in the judgment in the Court of Appeal, nobody asserted Wald was wrong.  If the contention for which we argue is correct, namely that any abortion, if it were performed on this plaintiff, would have been illegal because there was no danger to her health at all as found by the trial judge which would warrant any medical practitioner forming a belief that an operation ought to be performed, then the issue which Mr McCarthy’s client wishes to raise will be academic.

As your Honour Justice McHugh pointed out, Wald has stood in New South Wales for 25 years.  There has been at least one conviction using the Wald test in a case of Reg v Smart in 1981 in the District Court where a doctor was convicted under section 83.  The issue is one of some controversy and public sensitivity and, as your Honours Justices Gaudron and McHugh said in Breen v Williams last Friday in what we would submit is a similar set of circumstances, this sort of issue is best left to the Parliament.  One can also take notice that the Attorney and the Director of Public Prosecutions have not sought to have a reference to the Court of Criminal Appeal and go further on any acquittal based on the Wald test.

In Skinner v Beaumont (1974) 2 NSWLR 106 the Court of Appeal appears to have proved that test. Perhaps I could hand up some copies. I am sorry, they were not on our list. There is no express reference to Wald in the judgments, but Chief Justice Street at page 107 between B and C agrees with Mr Justice Samuels.  It was a proceeding in relation to proceedings before the Medical Disciplinary Tribunal against the doctor.  At the bottom of page 111G just before the new paragraph his Honour says:

Secondly, if one accepts the appellant’s description of the condition of these two girls, and it was not challenged, there were grounds in each case upon which a therapeutic abortion might very well have been justified.

His Honour expands on that between B and C on the next page:

it seems to me that any reasonable medical practitioner might very well have recommended that the pregnancies should be terminated according to the principles which have been established in the courts over the last two or three years.

Wald having been decided in 1971.  In our submission, while that does not put the matter beyond any doubt conclusively, that seems to have been the accepted view.  As I say, in 1981 in Smart’s Case, Dr Smart was convicted on a summing up that applied the Wald test.

BRENNAN CJ:   If I understand Wald correctly, is it not dealing with criminal responsibility rather than the elements of the offence?  I mean, perhaps that is because I was brought up under the Code, but honest and reasonable but mistaken belief in a state of facts which, if they were true, would exempt a person from criminal liability was always regarded as a defence to the individual, as distinct from the elements of the offence defined in the substantive provisions.  Now, as I understand Wald, it conflates the elements and criminal responsibility.  Am I reading it wrongly?  A person might not be guilty of murder because of an honest and reasonable mistaken belief.

MR RARES:   Yes.

BRENNAN CJ:   But that does not mean that you put the two together, in determining what the elements were.

McHUGH J:   I thought in Wald the word “unlawfully” was interpreted to take into account these questions of honestly and reasonableness.  Am I wrong in that?

MR RARES:   I think your Honour is correct in that.  But I think that the interpretation ‑ ‑ ‑

BRENNAN CJ:   Well, that may be the way in which it works.  In other words, it is a constituent element of the offence and, if so, then different circumstances may apply.  All I am saying is that certainly to one is not familiar with that frame of reference, it looked very much as though there was a conflation of criminal responsibility ‑ ‑ ‑

McHUGH J:   No.  I think Judge Levine said everything turned on unlawfulness.

MR RARES:   That is so.  The way it developed was from a judgment and we have not, I have to tell your Honours, looked at this in great detail, but there is a summing up of Mr Justice MacNaughton in a case of Reg v Bourne ‑ ‑ ‑

BRENNAN CJ:   Yes.

MR RARES:   ‑ ‑ ‑ in 1939, and his Lordship developed the question of whether it was necessary or whether there is this honest and reasonable mistake there, and then it progressed through Justice Menhennitt’s judgment in Davidson and then came to the Wald test.

BRENNAN CJ:   There are several steps that you can see along the way there.  I mean, the Bourne case was a question of the quality of life; then you have got the necessity element in Justice Menhennitt’s judgment and then you have what I have heard referred to as “the Levine ruling”.

MR RARES:   Yes.

BRENNAN CJ:   But these are certainly different concepts.  It was just simply that I was endeavouring to understand the basis on which the problem arises for our consideration here.

MR RARES:   I guess the way it arises is the case has been run all the way through on the basis that if the plaintiff presented to any doctor as the trial judge found she had in fact presented to her doctors, no doctor could have formed a belief that there was any medical reason why a termination could be justified because there was no ground.  She was physically perfectly healthy and mentally there was no danger, his Honour found.  He even said “a danger less than a serious danger”, he concluded against that.  So, we said in those circumstances, whatever one might say, there was no defence to a section 83 indictment.

BRENNAN CJ:   Well now, applying this to the application for leave to intervene, the application for leave to intervene will, in a sense, extend your protection, is that right?

MR RARES:   It would, yes.

BRENNAN CJ:   Because it would go further than Wald would go, but you say even on Wald, you would succeed?

MR RARES:   Yes.

BRENNAN CJ:   Yes, I understand.

MR RARES:   And that is why the parties on the respondents’ side fought the case on the basis that Wald stated the law but that in this case the plaintiff just never came within the medical facts necessary to justify, on Wald’s tests, a termination.  Now, that is why I was saying to your Honours earlier, it may be an academic issue that Mr McCarthy is seeking to raise in any event in this case.

McHUGH J:   Well, it may be.  There are a number of ways of looking at it.  I mean, one way of looking at this case is that the judgment of the Court of Appeal poses too high a test for the plaintiff because her right to damages cannot depend upon the state of mind of some hypothetical doctor, that once you conclude that she would have had a termination, her claim for damages could only be defeated if she herself engaged in some illegal act and that means that it is her state of mind that is relevant.  It is whether she would have committed an offence.  On that basis, supposing one approached the case on that basis, would you still be in the same position or would the intervention help you? 

MR RARES:   If that analysis were found to be correct, obviously the intervention would help us, but we also have arguments to meet that issue and one of them would be that she has to contract with a doctor who would be committing a crime and how does the law give damages to somebody being deprived of the opportunity of contracting with person who would undoubtedly be committing a serious criminal offence?

McHUGH J:   That assumes that somewhere there is some law that makes abortion unlawful.  As I pointed out to Mr McCarthy, I do not know of any such statute.  It penalises the conduct of certain persons who have certain states of mind and who do things unlawfully.

MR RARES:   I follow what your Honour is saying but it is not the way the case has been argued or presented up to now.

McHUGH J:   It may not have been, but talking about unlawful abortion may be at least thinking for the purpose of the legal analysis of the issues in this case.

MR RARES:   The only other thing I would say is that we would adopt what fell from your Honour Justice McHugh in relation to the suggestion by Mr McCarthy that there is somehow a duty to advise to have a termination.  That was never an issue in this case.  This case was all about a plaintiff who said, “If I’m pregnant, I want an abortion”, and that is what she told the doctor.  So there is no question of whether the doctor would have to give her advice about having one.

BRENNAN CJ:   No, the question must be put in a different way, though, must it not, and that is, what is the nature of the duty which was said to be breached by the failure to inform.  It was a question of the legal concept rather than what happened in the case.

MR RARES:   Yes.  With respect, we would adopt that, your Honour, and that is why Mr McCarthy’s argument on that point just really is not part of the issue.

BRENNAN CJ:   I do not know.  As I understood Mr McCarthy, what he was saying is that there is a duty of care which is postulated here as founding the cause of action being a duty of care to avoid the risk of her missing an opportunity to have an abortion.

MR RARES:   In circumstances where she has disclosed ‑ ‑ ‑

BRENNAN CJ:   Yes, I appreciate that.

MR RARES:    ‑ ‑ ‑ to the practitioner, that that is exactly the result she wishes to bring about, and there is no suggestion, for example, that she disclosed it to Superclinics, which are just managing a centre in which doctors operate independently.

BRENNAN CJ:   Then a question might arise on that hypothesis, if Wald is right and if Mr Callaway’s submissions are right, would Mr McCarthy’s interests be satisfied only in the case of those women who present saying, “And I want to have an abortion if I am”?  All I am saying is that there seem to be problems here of a conceptual kind that are very difficult to identify precisely.

MR RARES:   If Wald is right and when she presents she has some physical or mental disability, then duties of care would arise in relation to that, but the facts in this case are quite different.  Those are the submissions we wish to put.

BRENNAN CJ:   Thank you, Mr Rares.  Mr Garling.

MR GARLING:   We neither consent nor oppose the application, your Honours.

BRENNAN CJ:   Thank you, Mr Garling.  Yes, Mr Higgs.

MR HIGGS:   We oppose the application on the same bases already argued, your Honour.

BRENNAN CJ:   Thank you, Mr Higgs.  Mr McCarthy, Justice McHugh wishes to ask you a question.

McHUGH J:   Mr McCarthy, what would you say about this proposition?  Supposing the view was taken that so far as this case was concerned, the issue of illegality had to be determined on the law as it was understood in 1987.  How would that affect your right of coming as amicus curiae?  Do you understand the point that I am putting to you?

MR McCARTHY:   Yes, your Honour.

McHUGH J:   This is assuming in your favour that Wald was wrongly decided.

MR McCARTHY:   It was wrongly decided in 1987.  The law, I take it, as to mean the fundamental principles of statute and common law that applied in Australia.  We would be arguing, your Honour, that in 1987, a proper statement of the understanding and necessity would not give rise to an interpretation of section 82 or 83 or, in the ellipsis way that you refer to the law on abortion as not knowing the law of abortion, that in 1987 it would be the situation that the statement of what really the law would be would not support the cause of action that is put forward by the respondent in this case and would not give rise to any duty of care in the way that you would wish to put it forward.

In other words, the law, your Honour, is more than simply getting an agreement at the Bar table as to what a District Court judge might have said on one particular occasion.  The law is the whole principles of the common law as we understand it and statute law.

BRENNAN CJ:   Thank you, Mr McCarthy.  The Court will adjourn in order to consider what course it should take.

AT 11.26 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.14 PM:

BRENNAN CJ:   By a statutory majority of the Court, the applicants will be given leave to appear amicus curiae.  Now, as to the order of submissions.

MR CALLAWAY:   If your Honour pleases, there is just one matter that now arises.  That changes the complexion of the whole case so far as we are concerned and I would have to get instructions as to whether or not we can proceed or whether we should seek an adjournment of these proceedings because, what is this, about day 10, for the first time we are now faced with this argument.  We have seen about a 35-page submission by Mr McCarthy which changes the complexion of the case totally from our point of view, and we may have to seek an adjournment.  But I would, of course, have to obtain my clients’ instructions and I don’t know where - one of my clients is in Melbourne.

BRENNAN CJ:   How long would it take you to get those instructions, do you expect, Mr Callaway?

MR CALLAWAY:   If you give us until the end of the luncheon adjournment, your Honour, assuming that we can find the young man at work.  The other thing is, your Honours, I was not sure what Mr McCarthy said would be the costs acknowledgment or concession that he was prepared to make if he was allowed to take part in these proceedings.  Does your Honour have in mind, could I ask with the greatest respect, some sort of costs arrangement whereby those such as us are protected for what may be an adjournment, or what may also be some delay in the proceedings, or an extension of its hearing time?

BRENNAN CJ:   Yes.  We will hear from Mr McCarthy what he is prepared to say about that, Mr Callaway.

MR CALLAWAY:   If your Honour pleases.

BRENNAN CJ:   But before I call upon him, is there any other application at the bar table?  Mr McCarthy.

MR McCARTHY:   I think my friend’s submission raises two points.  In relation to the adjournment, I am a little at a loss to understand how he asks for an adjournment in this - I mean, I can understand him wanting to seek instructions and so on, but this notice of motion has been on notice for quite some time.  In relation to Wald and Davidson and related issues, my learned friends, right and left, have made and formed a view in relation to those cases, and it must be read, one would have thought, to put submissions concerning those cases, and certainly they have been on notice that that is about - - -

McHUGH J:   But why, Mr McCarthy?  After all, the point was never taken in the pleadings.  It has been common ground.  There has been no challenge to Wald, and the mere fact that you have put on this affidavit is no reason why the plaintiff or the defendants should spend their money preparing a case that they may not have to make, and one can sympathise with the fact that it would probably require extensive preparation to look at the arguments in relation to the correctness of Wald.  We are in a different discourse.

MR McCARTHY:   Your Honour, I am looking to the adjournment issue to begin with.

BRENNAN CJ:   The adjournment is sought until a quarter past two.  Surely, that is a reasonable request.

MR McCARTHY:   I have no - - -

BRENNAN CJ:   Then we will wait and see until a quarter past two what happens, but the question really is, and what Mr Callaway needs to know is this, in getting instructions from his client, if it should be necessary to seek and to obtain an adjournment of the further hearing of this appeal, should that be at your expense.  That is the question that is asked of you at this stage.

MR McCARTHY:   Your Honours, it is not usually the position that the amicus - the amicus bears their own costs.  It is usually not the case that the amicus is in a position of necessarily, or I am not aware of an order being made against an amicus concerning the costs of others.

BRENNAN CJ:   But the proposition in this case that you wish to advance is a proposition which is other than that on which the litigation below was conducted.

MR McCARTHY:   Certainly.

BRENNAN CJ:   And it is precisely on that account that you are seeking leave to appear amicus curiae.  Now, it may be that the Court will be assisted by such submissions as emerge from your appearance in that capacity but, so far as the parties are concerned, it is a different frame of reference from that which they were involved in in the litigation below.

MR McCARTHY:   Yes, your Honour.

BRENNAN CJ:   So, it is a very unusual case from that point of view.

MR McCARTHY:   Yes, it is.  Your Honour, if there are expenses or costs that are incurred in relation to that, my instructions would be that the amicus would honour an appropriate order ‑ would obviously have to be responsible for that, and I proffer that as a part of the consequences of being placed in the Court in the way that we have.

BRENNAN CJ:   That is in relation to adjournments or prolongation?

MR McCARTHY:   Yes.

BRENNAN CJ:   Very well.  Would 2 o’clock be suitable for you, Mr Callaway?

MR CALLAWAY:   Yes, your Honour.

BRENNAN CJ:   Court will adjourn until 2 pm.

AT 12.22 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.03 PM:

BRENNAN CJ:   Are there any applications?

MR CALLAWAY:   Yes, your Honour, on behalf of the first and second respondents and in the light of what has emerged just before lunch, we seek an adjournment of this appeal.  I have spoken with Mr McCarthy.  His client is prepared to pay the plaintiffs’ costs thrown away by the adjournment within 28 days and on that basis we seek the adjournment.  Of course, we are in the Court’s hands, but ‑ ‑ ‑

BRENNAN CJ:   What are the grounds of your application?

MR CALLAWAY:   On Monday we received a 35‑page submission, not the one that was handed up to your Honours, which opens up the whole of the correctness or otherwise of Wald.  Now, we just cannot, in the two days that are available, that is today and tomorrow, deal with that aspect of the case.  We have taken the liberty of speaking with the Registrar of this Court and if the case were to go part of the way until tomorrow afternoon, there would still be, I perceive anyway - I have spoken with my friends about a lot of these matters - something like another two days left in it.

BRENNAN CJ:   What is the present estimate of the total length of hearing?

MR CALLAWAY:   Until Mr McCarthy came into it, we thought two days, your Honour, and then when we realised this application may take a morning, it became apparent that it was not going to finish in two days.

BRENNAN CJ:   But in the state of the present situation, what is the present estimate, if any, that has been formed by the parties?

MR CALLAWAY:   Mr McCarthy and I think probably two days plus, maybe three, your Honour.  Three.  So I will remove the words - three days.

BRENNAN CJ:   Mr McCarthy’s submissions are in writing, as I understand it.

GUMMOW J:   Are there any US decisions brought in federal jurisdiction in diversity so they are decisions of federal courts of appeal?

MR RARES:   There is one Federal Court of Appeal that I looked at from Alabama, but I did not look at the decision itself.  I looked at it being referred to.  I think it is in Alabama, your Honour, but I do not think ‑ ‑ ‑

GUMMOW J:   They might have been sitting in Alabama, but there is no Alabama law on the point in practice.  They devise their own laws in the US Federal Court.  Whatever Erie Railroad says is one thing, but the practice that is what happens as I understand it.  There is no binding State authority.  They are free to devise their own.

MR RARES:   Can I give the Court a reference to that in the morning?  There is a decision of the Supreme Court of Illinois, which we have not put on the list of authorities, called Cockrum v Baumgartner 447 NE 2d 385, and I can hand up copies of that which may assist.

BRENNAN CJ:   What does it show?

MR RARES:   It is a wrongful birth case that shows that there is no damages for rearing a child.  There is a decision which we put on the list from Ontario of a single judge which gives no damages, and there is a decision from the British Colombia Court of Appeals, I think, which does in fact give damages and follows other decisions which I do not have, but I will give the Court a reference to that, if I may, in submissions in writing tomorrow.  We would respectfully refer the Court to the decision in Trustees of Church Property of the Diocese of Newcastle v Ebbeck ‑ ‑ ‑

We would respectfully refer the Court to the decision in Church Property Trustees, Diocese of Newcastle v Ebbeck.

McHUGH J:   But that is a condition in a will, is it not?

MR RARES:   Yes, but it says that where you do things that seek to - - -

GUMMOW J:   1960.  Public policy in 1960, and it was a divided decision anyway.

MR RARES:   Pardon, your Honour?

GUMMOW J:   A divided decision.

MR RARES:   Well, it is still a decision of the Court which, so far as on this side of the bar table, we should be able to at least rely on the decision of the Chief Justice and Justice Windeyer.

McHUGH J:   Justice Kitto dissenting.

MR RARES:   Sorry, your Honour, I have just lost my note of that decision.  At 403, at the bottom of the page, the Chief Justice Sir Owen Dixon says right at the last line:

Whether designedly or not such a disposition creates an opposition between the wife’s religious beliefs and a serious temporal interest of her husband, and doubtless by consequence of her own.  If she cannot or will not desert her faith it provides an inducement to him of a pecuniary or propriety nature the operation of which cannot be in opposition to the policy of the law, its policy to preserve and maintain a marriage.

Likewise, we say there is a policy to look after your own children and not to expect large damages from third parties to come and take care of one’s own children, even in a situation, as Justice McHugh keeps reminding me, where there has been negligence in the failure to inform of a pregnancy.  There is also the citation by Mr Justice Windeyer of the public policy consideration from Lord  Brougham’s speech in Egerton v Brownlow at 416.  Again, I mean, it is the fact that people come to court seeking damages for the birth of a healthy child and saying you can value this, and somehow there is an economic loss, but you do not offset the consequences and you do not look into these other areas such as whether you adopt out or not, or whether that is an independent cause - - -

GAUDRON J:   Can I ask why - what is the point of principle which results in a distinction being drawn in your submission between a healthy child and a non‑healthy child?

MR RARES:   Well, if there were medical grounds, for example, for having a termination, you may have a situation where there is a child who, because he or she is born, occasions the parents’ expense beyond the ordinary incidence of child rearing.

GAUDRON J:   Why should that result in liability rather than - - -

MR RARES:   It may be that, for example, and there is a case, I think, in Queensland called Veivers v Connolly by Justice de Jersey.  Maybe if you are confronted with a child who is impaired you have a different situation because there you are not just saying the introduction of a perfectly normal child into a home is not damage that the law recognises but the introduction of a child who has been impaired, in circumstances where it would have been lawful to bring about a termination, you can say, well, there may well be damage because of that because the parents are put to the sort of expense which the advice could legitimately be said to have been directed to preventing in a way that does not destroy family life.

BRENNAN CJ:   Mr Rares, you have been able to scandalise Justice Gaudron once today.  You have just succeeded in scandalising me enormously.

MR RARES:   I am sorry, your Honour.

BRENNAN CJ:   Only in that respect; to think that the law might grant damages because one child is abnormal and another is normal seems to me to put a value on human life which is such that no civilised community could abide it.  That is not a proposition surely which has been heard since the 1930s and in another place.

MR RARES:   Your Honour, what I had sought to put because her Honour asked whether there was a distinction - and I understand fully what your Honour is putting.  I suppose that really at the end of the day when one thinks about it, the fact that one can see this range on the Court of reaction to this area is a reason why public policy would say that these things are not really matters for the Court and that the legislature, if it is minded to, could and would be expected to provide a remedy.

In the cases that are looked at in other jurisdictions when there is a child who has been born with an impairment which was avoidable but for the defendant’s negligence, some of the courts that have taken the view that you do not get damages for the birth of a healthy child have taken the view that your Honour the Chief Justice has just raised with me that one can recover those sorts of damages.  My learned junior has given me a case in the Supreme Court of New Jersey, Schroeder v Perkel 432 A 2d 834 where a child was born with cystic fibrosis and the court gave - the headnote says:

(2) failure to diagnose cystic fibrosis and to advise parents that child suffered from such disease was a breach of physicians’ duty to parents; and (3) if parents prevailed on liability issue defendants could be held liable for incremental medical costs of a child born with cystic fibrosis.

That was the issue that I was seeking to address.  Our submission and the submission that is important for this case is of course that in this case there is a healthy child and these difficult issues do not fall for consideration.  Obviously what your Honour says is at the heart of family life, that when there is a child born who is impaired in one way or another, that the love of the family ought to surround that child, and that would be certainly a public policy point that we would submit would find favour with the Court.  But I was endeavouring to address other approaches and other approaches have been taken in the cases.

We have referred in footnote 25 of the submissions to the International Covenant on Civil and Political Rights and Declaration of the Rights of the Child which have got provisions that we have noted in there.  In Teoh the Court looked I think at Principle 3 in the Declaration of the Rights of the Child.  Again, by making the child the object of an action for damages, we would submit that that really is just as apathetic to what in a civilised society ought to be principles of family and life and that these are really matters for the legislature and that, if one goes back to the common law as to parental support where the parent actually brings - each parent is responsible for bringing the child into existence by their own act and you do not get a right to these damages one to the other, whoever might be the supporting parent, against the other parent, why on earth should third parties who have nothing to do with it be lumbered with the whole of that liability?  In our submission, it is just quite destructive of any principled civilised society and the Court for those reasons should not countenance these damages.  They are not good and, despite its quality as a divided decision, Ebbeck’s Case ought to be followed in that regard.

Then, if one looks, for example, in the Human Rights and Equal Opportunity Commission Act, the international covenant is set out in reprint No 3 at page 54.  There is article 23 which emphasises the role of the family and the family unit and the right “to found a family”.  Article 24, the child is given rights to have protection of the laws and be recognised as a human being and to acquire nationalities.  In Schedule 3 on page 62 of the print, the principles that preserve the child’s dignity and its moral and spiritual development is guarded in Principle 2.  It is entitled to a name and a nationality, of course.  In Principle 5, one has the right to or the principle that the child should be cared for where it has impairment.  The need for love in Principle 6.  These sorts of things are just fundamentally and completely attacked by the suggestion that the child can be made the subject of a claim for damages.

GAUDRON J:   On the other hand, some of them might be enhanced by the payment of a sum providing some security for the child.

MR RARES:   Your Honour, to the extent that society has taken on that obligation, there is a supporting parents benefit, and there are child support schemes and the like.

McHUGH J:   They will not take you very far.

MR RARES:   They may not, but that is what the legislature has provided, your Honour.  In our submission, it has done it in the context of the two people who were responsible for that child, the parents, and not the third party.  They were responsible for bringing the child into existence.  Why should other children coming about because of negligence after the parents have had a consensual relationship, why should some third party incur a far greater obligation to provide for a child in these circumstances and come to court ‑ ‑ ‑

McHUGH J:   Because this sort of thing happens all the time in the law of torts.  A solicitor is negligent preparing a will and the authorities today - and the money may go to the wrong member of the family; other members of the family get the same amount of damages for their benefit under the will from the solicitor.  So, the family as a whole gets double.  I do not think -it seems to me one of the weaker of your argument, Mr Rares.

MR RARES:   But where one is dealing with the child, him or herself, in a family context, and saying there are damages available there and depending on how you value them, what the economic measure is, it really is just antithetic to, in our submission, a recognition of the child having dignity.  As Mr Justice Meagher says in the court below, if the child is loved and is making a real contribution to the family, in most cases most people would not dream of even bringing it to court.  They would say, “We have got the child.  We are faced with the situation.  We will take that”.

McHUGH J:   That is easily said for a middle class person, but what about the poor woman who may be deserted, has got six or seven children and she has another child in circumstances such as exist in the present.  Why should she be debarred from bringing an action for damages?

MR RARES:   For the same reasons that I have endeavoured to put to your Honour and have not, to this stage, seen your Honour persuaded by.  But, your Honour, in our submission, to allow such a claim would really promote divisiveness and would require the Court to really value things that would create an unfair and distorted ‑ if you look at her measure of damages, you are going to get a distortion, because whatever benefits the child brings are just ignored, and whatever ‑ there are in most cases in society just the thrill of being a parent, and all the way through, even though its got its ups and downs in terms of emotional roller coasters, most people find that to be the most wonderful thing in the world, and if the Court is saying, “You’re going to get full freight damages and we’re just going to ignore the fact that that might be the most wonderful thing in the world to you”, in our submission, that would just be very destructive of having a civilised society.

Subject to the matters that are ‑ I have asked if I may just hand something in and your Honour Justice Gaudron’s question about the contract tort nominal damages issue.  May I leave those till the morning and ‑ ‑ ‑

BRENNAN CJ:   Yes.  Thank you, Mr Rares.  Mr Higgs and Mr Garling, could you provide copies of your submissions at this stage, and could you give some estimate of the time which you expect to take in oral submissions, understanding that there may be questions asked of you?

MR HIGGS:   Given the number of problems that we have to face, I would think, your Honours, that my submissions could be one and a half to two hours, hopefully.

BRENNAN CJ:   I see, thank you.

MR HIGGS   Might I hand up - is it appropriate just to hand it to the attendant at the adjournment?

BRENNAN CJ:   You can give those to the Court clerk at the adjournment, if you would, Mr Higgs.  Mr Garling?

MR GARLING:   Your Honour, I would hope to be shorter.  I would anticipate somewhere in the order of half an hour to 40 minutes, including any questions from the Court.  We will, in short, be seeking to put some submissions on the damages question rather than the illegality question and adopt the submissions on the illegality question.  That is why I think I will be significantly shorter.  As to my outline, your Honours, I have one prepared and I am happy to provide it.  I would wish to make some continuing ongoing adjustments to it if I had that opportunity overnight, but I will do what is most convenient to the Court, your Honour.

BRENNAN CJ:   I think it would be helpful if you were able to give whatever you have now to the Court’s clerk so that we can consider them overnight.

MR GARLING:   If your Honour please.

BRENNAN CJ:   Mr McCarthy, you are able to provide your submissions, I take it?

MR McCARTHY:   Immediately, your Honour.  They are available here in the Court now and they could be made available to the Court attendant immediately.

BRENNAN CJ:   Yes, thank you.  Will you be seeking to develop your argument orally, Mr McCarthy, or is it too early to say?

MR McCARTHY:   It really is too early to say, your Honour.  I would be handing the submission in and it would be thereafter, in terms of our position, it will be a matter of questions from your Honours, as to where that might develop.  I may be able to reformulate that tomorrow but, at the moment, from what I would understand of the position of amicus curiae, I would be presenting the submission to the Court.  I perhaps might be able to briefly just framework it it having already been handed to you and then to await a response from your Honours.

BRENNAN CJ:   Yes, thank you, Mr McCarthy.  Mr Callaway, do you wish to say something?

MR CALLAWAY:   I would like to say something before your Honours adjourned.  At the application for leave, notice was given that we intended to cross‑appeal on the damages issue.  Your Honours will recollect that that was left more or less unresolved in the sense that Justice Kirby took one view, Mr Justice Priestley took another, Mr Justice Meagher took yet another, but the closer unanimity was between the latter two.  Your Honour, I believe I need leave now, although the notice of cross‑appeal has been filed, to, in effect, rely upon it.  If so ‑ ‑ ‑

BRENNAN CJ:   I suppose I should call formally on the other parties to see if they have anything to say about that.

MR CALLAWAY:   I have had words with them, your Honour.  As I understand it, they do not.

BRENNAN CJ:   Mr Rares?

MR RARES:   No, your Honour, we see it coming up as part of ‑ ‑ ‑

BRENNAN CJ:   Mr Higgs?  Mr Garling?  Yes, well, you will have leave, Mr Callaway.

MR CALLAWAY:   Thank you, your Honour.

BRENNAN CJ:   The Court will adjourn until 10.15 tomorrow morning.

AT 4.20 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 12 SEPTEMBER 1996