Sweedman v Transport Accident Commission

[2005] HCATrans 153

[2005] HCATrans 153

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M181 of 2004

B e t w e e n -

HELEN MARGARET SWEEDMAN

Applicant

and

TRANSPORT ACCIDENT COMMISSION

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 MARCH 2005, AT 10.40 AM

Copyright in the High Court of Australia

MR N.C HUTLEY, SC:   If the Court pleases, I appear for the applicant with my learned friend, MR J.K. KIRK.  (instructed by Henry Davis York)

MR J.H. KARKAR, QC:   If the Court pleases, I appear with my learned friend, MR P.H. SOLOMON, for the respondent.  (instructed by Solicitor to the Transport Accident Commission)

McHUGH J:   Yes, Mr Hutley.

MR HUTLEY:   Thank you, your Honour.  Your Honours ‑ ‑ ‑

McHUGH J:   Mr Hutley, we are familiar with your arguments and the case does raise some important points of principle. I am by no means persuaded that you would be successful in an appeal if leave were granted.

MR HUTLEY:   I should tell your Honour something shortly before your Honour goes any further.  Your Honour got a note from my learned friends about the amendment to section 104 of the Transport Act.

McHUGH J:   Yes.

MR HUTLEY:   And your Honour, what that note did not contain and what we only just found out when we got the legislation is that 104 was amended retrospectively, so the construction issue has gone.  The amending Act added a section 184 which applied the amended section 104 to all circumstances occurring before or after the Act.  Now, just before your Honour went any further, I thought your Honours may not have been aware of that fact.

HAYNE J:   But where does that leave us, Mr Hutley?

MR HUTLEY:   Your Honour, the construction issues, I have to accept, go.  I am confronted ‑ ‑ ‑

HAYNE J:   But what does it do to the vehicle?  Does it mean that we have an unsatisfactory vehicle to resolve the points?

MR HUTLEY:   No.  The constitutional points ‑ ‑ ‑

McHUGH J:   The 117 point is still there, is it?

MR HUTLEY:   The 117 but particularly, we say, the inconsistency point is still there, and we say the Court of Criminal Appeal was wrong, and we say clearly wrong, about this type of indemnity being not a claim for damages for personal injuries because there was a failure to analyse what

the indemnity here was, which, really unlike any other indemnity, is really a claim for unliquidated damages.

McHUGH J:   The amendment only means that paragraph (a) goes out.

MR HUTLEY:   Quite, exactly.  Other than that, we submit that all questions remain.

McHUGH J:   Yes, we might hear what your opponent has to say, Mr Hutley.  Yes, Mr Karkar.

MR KARKAR:   If the Court pleases, there are several issues raised.  Might I first of all deal with the question relating to inconsistency between the ‑ ‑ ‑

HAYNE J:   Before you come to that, what do you say about vehicle?  Do the amendments make this unsatisfactory basis on which to consider the question?

MR KARKAR:   It makes it a fortiori an unsatisfactory vehicle to consider this question.

McHUGH J:   It only means, does it not, Mr Karkar, that paragraph 1a is out and that b, c, d and e are still live issues.

MR KARKAR:   That is so, but the question is whether, having regard to the facts of this case, this is a satisfactory vehicle for the determination of those issues.  We would submit that it is an unsatisfactory vehicle because on no view can, first of all, the applicant succeed on those issues.  There is, we would submit, no inconsistency apparent between the New South Wales legislation and the Victorian Act.  The Victorian Act in the relevant respect, section 104, gives rise to a statutory right of indemnity.  It does not give rise to an action in tort.  The New South Wales Act is only limited to actions in tort, so that ‑ ‑ ‑

McHUGH J:   I understand that, Mr Karkar, and speaking for myself, I was very impressed by the judgment of Justice Nettle; in fact I was somewhat surprised that in some respects you did not fully follow his train of argument.  Be that as it may, the case does raise some very important points.  You have two big parties well able to look after themselves and, although my inclination at the moment is that an appeal would probably fail, the fact is that it does raise some important points of legal principle, clearly constitutional principle.It is better that this Court should resolve it rather than the Court of Appeal.

MR KARKAR:   If your Honours are of the view that it is unlikely that there will be a successful appeal, we would submit that that is by itself a reason for refusing special leave.  We would strongly urge your Honours to follow that course because the questions that arise are, with great respect, contrived.  They are not real questions that have any prospects of success.  I mean, it cannot be said, for example, that the provisions, section 104 or section 94, works a discrimination against New South Wales residents.  I mean, the discrimen is clearly not residence in this case ‑ ‑ ‑

McHUGH J:   I appreciate the force of what you put, but after 20 years as an appellate judge, there have been many, many, many occasions in which full argument has changed my prima facie view about a legal situation, and while at the moment my inclination is in your favour on the merits of the argument, that does not mean that – and I am only speaking for myself - that if I were sitting on it, which I will not be, that the applicant would not succeed.  But there are important constitutional and other issues involved in the case, which seems to me to make it an important point for this Court to consider.  It does not seem to me that you can say that the argument for the applicant on the merits is hopeless.

MR KARKAR:   We do go as far as to say that, your Honours.  On section 117 it is hopeless, and it is even more hopeless on the inconsistency argument.  Your Honour, with great respect, is falling into the error which his Honour Justice Kirby was falling into and which your Honour recognised I think in the first case this morning.

McHUGH J:   Do not go back for your hat, Mr Karkar.

MR KARKAR:   And that is – your Honour is taking a case because it raises interesting issues.  But in the end, if your Honours are satisfied that there is no prospect of success, as we submit there is not, then it would be wasteful of your Honours’ time to take it.  I mean, I cannot put it any higher than that.

McHUGH J:   Yes.

MR KARKAR:   If your Honour pleases.

McHUGH J:   Thanks, Mr Karkar.  Mr Hutley, you will have to delete something from your ground of ‑ ‑ ‑

MR HUTLEY:   Yes, your Honour, it will be amended to bring it into accord with the state of the law now, having regard to the amending Act.

HAYNE J:   So are you able to indicate yet which grounds go?

MR HUTLEY:   Your Honour, I have not actually analysed the paragraphs that would be deleted, but I am sure I can very shortly.

McHUGH J:   It might only be three.

MR HUTLEY:   Yes, the grounds, the first one, insofar as it is contended that “The Court erred in failing to answer the questions . . . A.  No” will have to be deleted.

HAYNE J:   So it becomes an appeal from part of a judgment.

MR HUTLEY:   Yes.

HAYNE J:   An appeal against answers B and C, is it?

MR HUTLEY:   Yes.

HAYNE J:   And which ground then subsequently comes out? 

MR HUTLEY:   The grounds would be 3 and all the rest I think would stay.

McHUGH J:   Yes, I think that is probably right.

HAYNE J:   That is certainly my impression, but ‑ ‑ ‑

MR HUTLEY:   Yes, I think that is the case, your Honour, but we will confirm that and we will bring in a file of amended notice of appeal to accord with the statement of the law.

McHUGH J:   Yes, thank you.  There will be a grant of special leave to appeal in this matter and, as Mr Hutley has indicated, ground 2A will not be pressed nor ground 3, nor will any other ground be pressed that is necessary to give effect to the amendment to the legislation to which we have been referred.

AT 10.50 AM THE MATTER WAS CONCLUDED