Taylor v The Owners - Strata Plan No 11564 and Ors

[2013] HCATrans 206

[2013] HCATrans 206

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S73 of 2013

B e t w e e n -

SUSAN JOY TAYLOR IN HER OWN CAPACITY AND FOR AND ON BEHALF OF THE DEPENDANTS OF THE LATE CRAIG TAYLOR

Applicant

and

THE OWNERS – STRATA PLAN NO 11564

First Respondent

ALISON MARGARET LAMOND

Second Respondent

GORDON SUNN

Third Respondent

CLIFFORD SUNN

Fourth Respondent

DUNCAN RAE

Fifth Respondent

MANLY COUNCIL ABN 43662868065

Sixth Respondent

RYAN WINTON TAYLOR

Seventh Respondent

LISA JANE TAYLOR

Eighth Respondent

MITCHELL ALAN TAYLOR

Ninth Respondent

ZARA ZOE

Tenth Respondent

Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 SEPTEMBER 2013, AT 10.40 AM

Copyright in the High Court of Australia

____________________

MR J. POULOS, QC:   I appear with my learned friends, MS V.M. HEATH and MS Z.C. HEGER, for the applicant, your Honour.  (instructed by Craddock Murray Neumann)

MR P.W. TAYLOR, SC:   I appear with my learned friend, MR G.M. GREGG, for the first to fourth respondents.  (instructed by Meridian Lawyers)

MR L. KING, SC:   I appear with my learned friend, MR S.P.W. GLASCOTT, for the sixth respondent.  (instructed by DLA Piper Australia)

HAYNE J:   I have a certificate from the Registrar that no appearance has been filed on behalf of the eighth and ninth respondents, and the fifth, seventh and tenth are, I think, submitting, are they not?

MR POULOS:   Yes, your Honour.

HAYNE J:   Yes, Mr Poulos.

MR POULOS:   Your Honour, the court below was unanimous in holding that if the literal meaning of section 12(2) of the Civil Liability Act 2002 (NSW) applied, the applicant must succeed, and that the respondents could only succeed if some other words were substituted for the statutory word “claimant” in the section. The court was divided as to whether or not the other words could be substituted into that section. This process immediately raised the division of opinion which was to be seen by comparison between the judgments of her Honour Justice McColl and his Honour Justice Basten.

HAYNE J:   Well, does it come then to this, that the Act has been construed by the Court of Appeal in a way that would limit the damages available to a party in circumstances where that limitation, your side of the record would say, is neither provided for nor provided for at least clearly?  Is that it?

MR POULOS:   That is so, your Honour.

HAYNE J:   We might be assisted, I think, Mr Poulos, if we hear from Mr Taylor and Mr King.

MR POULOS:   If your Honour pleases.

HAYNE J:   Mr Taylor.

MR TAYLOR:   Your Honours, the starting point of the argument, in our respectful submission, is a false premise, and that is the false premise in ground of appeal 3 on page 85, which is picked up effectively in the applicant’s submissions in response at page 171.  What we say is the false premise is the proposition that the appropriate principle of statutory construction is that if the words are capable of having a meaning, then one cannot depart from them in any relevant sense, and that is further expounded, although somewhat obliquely, at page 171 in the paragraph numbered 4 where the supposition is that the Cooper Brookes principle is consistent with that ground, is inconsistent with what is being called the three conditions in Wentworth.  But underlying this argument at the core of it is the proposition that if the legislation is capable of having a view that is open, then one cannot depart from that open view.

HAYNE J:   Well, put that proposition on its head for a moment.  What is the construction that your side of the record offers of the word “claimant” that would give it the work you assert it does of limiting a relative’s survival claim?

MR TAYLOR:   Your Honour, we say the word “claimant” means either “the relevant person” or synonymously ‑ ‑ ‑

HAYNE J:   Yes, who is the relevant person, sorry?

MR TAYLOR:   One answers that question by going back to the three limbs in 12(1) which are earnings, injured person, earning capacity and then the claim for loss of financial support.

HAYNE J:   Can I just understand that a little more closely?  We find the section, do we not, at the applicant’s statutes book, page 3?

MR TAYLOR:   Yes, your Honour.

HAYNE J:   Is that the relevant one?

MR TAYLOR:   That is the relevant provision, yes.  Can I just take your Honours through the three parts of that?  In the first proposition, the claim is for “past economic loss” for loss of earnings, and in the second, it is for “future economic loss due to the deprivation or impairment of earning capacity ‑ ‑ ‑

HAYNE J:   There would be no doubt that in those operations of the section the claimant would be a reference to the plaintiff in the action, would it not?

MR TAYLOR:   Indeed, but the middle step is the situation of a survival claim.  In a survival claim, certainly the estate could not recover prospectively for the earnings after the deceased had died, but there still is a claim for loss of earnings or earning capacity in the period between injury and death.  In that situation, the claimant would relevantly be, in our respectful submission – contextually, it would have to be the person who died.

HAYNE J:   Why?

MR TAYLOR:   Because it is the survival claim – it is brought by the estate.  The estate could only assert the loss of earnings or earning capacity of the deceased.  It would make totally no sense at all in that situation for one to be looking at the earnings or earning capacity of a particular person who occupied the office of the executor or administrator.  It must be referring to the injured/deceased.

If we come to the third point ‑ and your Honour, we can put our submission really succinctly because it depends upon this proposition ‑ the third limb of 12(1)(c), as your Honours will see, is a claim for –it refers to an award of damages:

for the loss of expectation of financial support.

What it does not say is a claim under the Compensation to Relatives Act 1897 (NSW). What has occurred in the arguments to date is that the applicant has said – and indeed, the judges below have said – that because a claim for loss of expectation of financial support can only occur in a Compensation to Relatives Act claim, it must mean every claim of a kind that could be bought by a Compensation to Relatives Act complainant.

That is a false premise, and it involves two errors.  One is, it does not focus upon the words of the statute, namely that a claim “for the loss of expectation of financial support”, which if the applicants are right is but one of the kinds of claims that might be sustained in a Compensation to Relatives Act claim.  The second error involved is that the applicant’s construction in trying to expand 12(1)(c) in a way which they do commits the very error about which they complain, namely of reading up a statutory provision where the context does not provide for it.

Our two points really are this, your Honours.  If you go back to our basic point where we complain about the grounds of appeal and the way in which the applicants put their proposition at blue 171 in paragraph 4, we submit to your Honours that what is posited there as an inconsistency between Cooper Brookes and the three conditions is based upon a misunderstanding of Cooper Brookes.  The footnote – it is a bit hard to read in the middle of the page – footnote 10 takes a passage out of the judgment in Parramore v Duggan as if ‑ ‑ ‑

HAYNE J:   I assume the author of the document assumes that we do not know the distinction between 12 point and other point type, but there we are.  Yes?

MR TAYLOR:   The footnote emphasises the passages in Parramore v Duggan that talk about irrationality and absurdity as the basis on which one can depart from statutory meaning.  But Cooper Brookes, both the Chief Justice and Justices Mason and Wilson went further and said you

cannot confine the relevant principles to open construction and you depart from where it is absurdity.

This Court, in Thelander, if your Honours turn back to page 63 in the authorities book, page 63 in paragraph [24], the relevant statement of principle which we would put to your Honours is now the accepted view in this Court.  It comes from Project Blue Sky, and it emphasises the totality of the context and, in particular, footnote 32 is a specific reference back to the judgment of the Chief Justice in Cooper Brookes, where his Honour clearly was saying you do not just stick with the literal meaning, and you are not dealing with situations where it is simply open.  That is our first point.

Our second point is when you look at the precise words of the section, it does not refer generically to Compensation to Relatives Act claims.  It refers to claims for loss of income support.  That is a specific set.  There is, in our respectful submission, a clear and specific statutory mandate that the award of damages that is involved is loss of financial support.  That must refer by means of quantification to the earnings of the deceased.  Therefore, that context and that intention, in our respectful submission, compels the view that “claimant” must mean, in its application to a claim of that kind, the only person who provides a criterion for assessing the award, namely the person who has died.  That is our short point, your Honours.

HAYNE J:   Yes.  Thank you, Mr Taylor.  Yes, Mr King

MR KING:   Your Honours, I do not want to add much to what Mr Taylor said.  I adopt what he has said, but I would, to some extent in the alternative, invite the Court to look at it in this way.  What really cries out for a grant of leave in this case – when the Court of Appeal applied the rules about reading words into a statute, they applied them accurately in the sense that they did not distort them or misstate them.  There is nothing in the reasons of the Court of Appeal which calls for the intervention of this Court to restate their principled approach.

What the difference in the Court of Appeal came down to is a nuts and bolts, or a specifics approach.  If one looks at the dissent of Justice Basten and sees the sort of things that he relied upon to drive his different approach at 66 of the book, in my submission, it is clear that his Honour, with all respect to him, was really pushing the envelope.  He was in difficulty.

If you look at paragraph 69 on page 66 of the book, his Honour suggests that in the early 21st century, the New South Wales legislature in the Civil Liability Act – which is undoubtedly in this area restrictive and not beneficial – was providing some sort of a loophole because you cannot get

general damages in a Compensation to Relatives Act claim. They are trying to balance the ledger in some way. Your Honours, really, there is not much in that. Then he went over the page to the top of 67 and raised the very point which Mr Taylor has dealt with, that when you look at section 12, it has got to be talking about, in a relevant area, a Compensation to Relatives Act claim.  It is set out, as Justice Hayne said, in the materials, but also Justice Garling set it out in paragraph 29 of his reasons on page 8 of the application book.  Subsection (2) says:

In the case of any such award –

It takes you back to all three of the clauses, (a), (b) and (c) in subsection (1).  As the Court of Appeal in the majority and Justice Garling said, (c) is squarely the Compensation to Relatives Act approach.

BELL J:   It remains that on the approach of the majority in 12(2), “claimant” was read in a way that required reading words into the provision, so words were read into a provision with the effect of significantly diminishing the rights that would otherwise be available to this plaintiff.  That is, in itself, a somewhat robust approach.

MR KING:   It is entirely consistent with the purport of this statute, your Honour, and it is dealt with comprehensively by the Victorian Court of Appeal in DPP v Leys ‑ ‑ ‑

BELL J:   That raises the suggestion of something of a difference in approach between the Victorian court and that adopted by the Court of Appeal of New South Wales in PLV.

MR KING:   Your Honour was well advised to use the word “something” there, because it is not much.  With all respect to ‑ ‑ ‑

BELL J:   Enough to take away a significant award.

MR KING:   Your Honour, with all respect to the former Chief Justice of this State, he was pretty comprehensively done over by the Victorians in DPP v Leys, and there is not, in my submission, much doubt about where the correct line falls.  Your Honours, that is what I want to add to Mr Taylor.

HAYNE J:   Thank you very much, Mr King.  There will be a grant of leave in this matter.  Do counsel agree that this would be less than a day, this case?

MR POULOS:   Your Honour ‑ ‑ ‑

HAYNE J:   Counsel do agree that this will be less than a day.

MR POULOS:   It depends on what we are made to agree to, your Honour.

HAYNE J:   Chief Justice Gleeson used to refer balefully occasionally to alternative dispute resolution being called for on occasions of this kind, Mr Poulos.  Seriously, though, I cannot see it as needing more than a day, can you?

MR POULOS:   No, your Honour, it is just that the researches that have led up to this point have taken weeks, but we will try and ‑ ‑ ‑

HAYNE J:   Good.  That will enable distillation of the argument to its essence, will it not?

MR POULOS:   Yes.

HAYNE J:   Those instructing counsel will receive from the Registrar the directions for the filing of submissions.  Those directions are to be followed to the day and to the letter, because it is possible – I do not say inevitable – but it is possible that the matter might be made ready for the December list, and that can only be if the parties adhere strictly to the directions that are given.

MR POULOS:   If your Honour please.

AT 10.58 AM THE MATTER WAS CONCLUDED