The Northern Territory of Australia and Ors v Mengel and Ors

[1994] HCATrans 6

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Darwin        No D5 of 1994

B e t w e e n -

THE NORTHERN TERRITORY OF
  AUSTRALIA and ORS

Appellants

and

ARTHUR JOHN MENGEL and ORS

Respondents

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 SEPTEMBER 1994, AT 10.19 AM

(Continued from 12/8/94)

Copyright in the High Court of Australia

MASON CJ:  Mr Jackson.

MR JACKSON:  Your Honours, the Court will have the document which we undertook to provide at the conclusion of the last hearing. 

MASON CJ:  Yes, we have that.

MR JACKSON:  That document, if I could take Your Honours to it, as its concluding paragraph indicates is not in substitution for but rather in addition to our written submissions which are entitled the respondents’ submissions, the earlier made and, of course, the oral submissions which we made earlier. 

Your Honours, the course which, subject to the Court, we would propose to adopt today is to go through the new document, as it were, indicating the nature of the submissions being made and drawing attention on the way to a number of particular matters and, Your Honours, in that regard could I take Your Honours first to paragraph one at the first page of the document which sets out the broad proposition which we seek to support, and the matters which are set out in paragraphs 2 and 3 are matters which have already been the subject of our oral submissions.  Could I go then to paragraph 4 at the top of page 2.  I go to it, Your Honours, because the argument on behalf of the appellants and, if I may say so, a little surprisingly perhaps on behalf of the interveners seeks to suggest that no element of implied coersion was involved. 

Your Honours, we would invite, indeed ask Your Honours, to look at the references which have been given in that regard in our written submissions and in the respondents’ submissions, I should say, and in particular to places referred to in paragraph 4.  In paragraphs 5 to 10 we set out what, in our submission, is the underlying situation, and we would also ask the Court to note, if we might say so particularly, the position set out in paragraph 10.  There seems to be a missing paragraph 11 in the copy which I have, but I suspect that is just a matter of numbers.

Following paragraph 12 there are set out some considerations in favour of the existence of some tort of the nature in question, and we have already dealt orally with the propositions in paragraphs 13, 14 and 15;  16 to 18 and paragraphs 19 and 20.  In relation to paragraph 21, and this is a matter which was not mentioned earlier, could we just make the submission that in the case of moneys paid in under compulsion of various kinds the remedies, in our submission, do go beyond simply the recovery of those moneys, and we give Your Honours some references in that regard. 

Could I refer Your Honours particularly to what is set out in the last couple of sentences in paragraph 21 and that is what Lord Scarman said in Universal TankShips:

“the law regards the threat of unlawful action as illegitimate whatever be the exact nature of the demand.”

BRENNAN J:  Was any claim in duress as a tort made in the action?

MR JACKSON:  In this case?

BRENNAN J:  Yes.

MR JACKSON:  Yes, Your Honour. 

BRENNAN J:  What was its fate?

MR JACKSON:  It was found against us.

BRENNAN J:  Then what is the significance of the Universal Tankships case?

MR JACKSON:  Your Honour, really to support, in our submission, the broad proposition set out in paragraph 21.  What I was seeking to say was this:  that if one is talking about cases, say, of duress, then it is obvious that there may be damages available in the appropriate case.  All I am seeking to do, Your Honours, is to say that in a range of cases in which the question is:  what relief may be obtained in circumstances where there has been some form of - I use the word “compulsion” loosely, Your Honour - action going beyond power or beyond the appropriate course of action which should be taken as in the case of duress, a variety of remedies is available.  That is all I am seeking to do.

BRENNAN J:  Can I just delay you a moment longer.  Was there any finding of fact - - -

MR JACKSON:  I am sorry, Your Honour, could I say - it was in error, duress was not claimed as a cause of action.

BRENNAN J:  It was not?

MR JACKSON:  It was not.  It was my mistake, Your Honour.

BRENNAN J:  If this case is going to be put as, in fact, a case of duress, at least in another guise - - -

MR JACKSON:  I am sorry, I did not hear- - -

BRENNAN J:  If this case is going to be argued, as in substance a case of a tort of duress but dressed in another guise, and duress has never been pleaded, then is it appropriate to allow the other guise to be adopted?

MR JACKSON:  Well, Your Honour, we are not adopting the other guise, if I can put it that way.  What we are seeking to say is this, that we rely upon the several causes of action in respect of which there either was a finding in our favour or in respect of which, in the case of the cause of action that commended itself if I can use that phrase to Mr Justice Priestley, that in respect of that, then all those were available to us.  Your Honour, in relation for example to that cause of action, the last to which I have referred, the point which we seek to make in relation to it is that what His Honour relied upon was the combination of ultra vires action, on the one hand, with, in the particular circumstances, the implied threat - if I can use that word - of a seizure for example of the goods.  Now, that is the only sense in which I am seeking to use the expression “duress”. 

Now, what I was seeking to say Your Honour was this, that if one goes back to the proposition which we set out in paragraph 12 of our written submissions and also the proposition in paragraph 1, and that is the submission that Your Honours have now, that what we would say is that the type of relief that is sought, the class of case that in respect of which relief is sought, does not differ very significantly from the classes of case in which, (a), relief has been granted and from the types of relief, (b), that have been granted in respect of such classes of case.

Your Honours, in answer to Your Honour Justice Brennan I have to say one more thing, the fourth cause of action, of course, is in relation to the question of misfeasance in public office and that is the other cause of action upon which we rely.

So, Your Honours, all we are seeking to do is to draw together the strands in this part of the argument and, in particular, if Your Honours look at paragraph 19, if I might say so, of our most recent submissions, if one has a situation - and this is the starting proposition for the particular reference - if money paid as a result of a threatened seizure of goods is recoverable and if, Your Honours, it be the case, as Your Honours will see in the middle of that paragraph, that a threat to seize is treated as equivalent to actual seizure, that the point that we are really seeking to make, Your Honours, in the next paragraph and paragraph 21, is that recovery of the money, in a case like that, is not, in our submission, the only form of relief that is available and, Your Honours, we seek to get a by analogy to the present case.

Your Honours, paragraphs 22 to 25 are matters with which we have dealt with already.  If I could move to paragraphs 26 and following, dealing with the Beaudesert case.  We there seek to elaborate upon the thesis of our submissions that Beaudesert remedies are available where there is a contravention of rights.  As we point out in paragraph 27, it is true of course that the Court in Beaudesert did not use the words “in contravention of rights” but that, in our submission, is in fact what the Court was talking about.  We look at the way, in paragraph 27, in which the Court stated the issue and then we proceed to deal in paragraphs 28 and following with that proposition.  In paragraph 29 we commence dealing with the facts of the case.  That goes through, Your Honours, in paragraphs 28, 29, 30, 31, 32, 33 and 34.

If I could direct Your Honours’ attention particularly to paragraph 33, the Council in removing the gravel was doing something it had no right to do, and the particular way in which the issue was expressed in the Court’s reasons was in terms of the lack of authority or, as we would put it, right of the Council to deal with that.  We give Your Honours the passage at pages 149 and 150 in which the essence of the case is discussed.  What we would submit is what is set out in paragraph 34, that by doing something it was not allowed to do, the Council prevented Smith from doing something that he was allowed to do.  It, in other words, was interference with his right.  Could we refer Your Honours particularly to what we have set out in paragraph 36(b) at the bottom of the page.  There was not a question of balancing of rights; there was no right of the Council’s to balance against Smith’s right.

Your Honours, in paragraph 37 we refer to the several cases that were the basis on which the Beaudesert principle was developed.  What we would submit is that each of those was dealing with a right.  True it is that in I think two of the cases the right was a fairly general one such as the right to conduct a business in Garret v Taylor and the right to trade in Tarleton v McGawley but, Your Honours, it is plain enough that that is what was contemplated by the Court.

Your Honours, in the following paragraphs which deal with Beaudesert, and in particular in paragraph 39, we set out the way in which we would seek to make the Beaudesert principle applicable to the present case and, in particular, if I could refer to the bottom of page 10, to paragraph 39(g) where we say if one goes back to the passage in Keeble v Hickeringill quoted in Beaudesert, at page 153 - if I could take Your Honours to Beaudesert, 120 CLR, for just a moment, at page 155, Your Honours will see there is a quotation in the middle of the page from Keeble v Hickeringill and what Your Honours will see two-thirds of the way through the quotation is a sentence commencing, “But suppose Mr Hickeringill should lie in the way”, et cetera.  Then, following that, another example:

A man hath a market, to which he hath toll for horses sold:  a man is bringing his horse to market to sell:  a stranger hinders and obstructs him from going thither to market:  an action lies, because it imports damage.  Action upon the case ‑

et cetera.  What we would submit in relation to that is, as we put at the top of page 11, why should not both the persons - to use the terms of that case - who “hath a market” and the man who was “bringing his horse to market” not have the action against the stranger who hinders and obstructs him from going “thither to market”.

TOOHEY J:  Mr Jackson, you identify the right in paragraph 39(a) as one to deal clearly with the cattle subject to any lawful restrictions.

MR JACKSON:  Yes.

TOOHEY J:  Does that include a possible risk to other cattle owners in the area?  I put it that way because, although you speak of the common law, what I have in mind might be something a little broader than that.

MR JACKSON:  Your Honour, if what Your Honour is talking about is the possibility of there being a danger to other persons, for example, by leading and having infected cattle being moved then, Your Honour, I would say two things about that:  the first is that what we have set out in paragraph 39(a) in terms of lawful restriction is intended, I think it right to say, to contemplate statutory prohibitions.  However, in relation to what Your Honour has put to me, no doubt there would be a qualification upon the ability to deal freely with cattle where, for example, to take them through a place might be likely to cause infection, in much the same way as there is a limitation upon the ability of someone suffering from a contagious disease to walk freely through a crowded area.  I suppose, Your Honour, that puts it in a kind of blunt way but I am sure Your Honour will understand what I am seeking to put.  But what I would say further Your Honour is this, that in the particular case, of course, this was not a case where in fact the animals had the disease and nor did anyone think they actually had the disease, and it is thought to be highly unlikely that they would.

So that, Your Honour, one can understand that there might be circumstances in which one of the duties to ones neighbours would bring about a situation where the right would be qualified in the manner Your Honour has expressed but that is, in a sense, why the existence of such a qualification, whilst theoretically available, is not, with respect, germane in the present case.

TOOHEY J:  It is crucial to your argument that the right be identified in such a way that it can give rise to an interference on the part of the respondent, is it not?

MR JACKSON:  Yes.  I suppose the answer is yes, Your Honour, yes.

TOOHEY J: Perhaps that is a self-evident proposition.

MR JACKSON:  Yes.  Could I just summarize, in effect, what right we had.  We had an unrestricted right to move the cattle off the properties for the purpose of sale to market and an unrestricted right to move and sell them anywhere in the Northern Territory and in Queensland.  It was only if we wanted to move them to some other places in Australia that a further test was required.  Could I give Your Honours the reference where that might be found?  It is at page 289, lines 40 to 60.  The finding, of course, was that it was highly unlikely that the animals did have brucellosis.  That is at page 43, line 60. 

Following the passage to which I have referred at page 11 of our submissions, we then go on to deal in paragraphs 43 and following with some submissions made on behalf of the Commonwealth intervening.  I said earlier at the start of my submissions, I think, this morning that in some respects some of the interveners’ arguments sought to challenge, in effect, findings of fact made at the trial.  We refer to that in paragraph 44.  Could I go on then to take Your Honours to paragraph 46 of our written submissions and the scheme we have adopted is to set out the essence of the proposition in the submissions and then to make a comment about it. 

Could I just draw Your Honours’ attention to paragraph 47, which deals with paragraph 15 of the submissions on behalf of the Commonwealth, which is just a little bit above it on the same page.  If that submission were accepted there would not be a tort of trespass to land, one would think.

Your Honours, in paragraph 49 we deal with the proposition that is contained in paragraph 17 of the Commonwealth’s submissions which is quoted at the top of page 14, and that is that where there is:

imposition of liability in cases of fault is supported by a ‘general public sentiment of moral wrongdoing ‑

and so on.  In paragraph 49(b) we would say that such a sentiment applies in a case such as the present.

Your Honours, could I go then to paragraph 52.  This deals with an issue which seems to recur in the submissions on behalf of the interveners, namely that the conduct of the appellants could not be treated as giving rise to any kind of threat or intimation of possible seizure.  In that regard, Your Honours will see in the Woolwich Building Society case, (1993) AC, at page 165C, in summarising what was to that point, the law on the topic there being dealt with, Lord Goff says:

(d) In cases of compulsion, a threat which constitutes the compulsion may be expressed or implied, a point perhaps overlooked -

and so on.

Your Honours, we would refer also to appendix F1 to our original submissions in which the evidence dealing with this question and the view taken by Mr Justice Priestley is set out at considerable length.  That is at pages 49 to 54 of our written submissions.  Could I refer also to pages 16 to 18 of those submissions.

Your Honours, at the end of paragraph 57, we refer Your Honours to the recent decision of the New Zealand Court of Appeal in Simpson v Attorney-General and Anor.  Your Honours will have a copy of that decision, I understand.  That is a decision based on a provision of, in effect, the Bill of Rights provisions of that nation, the Bill of Rights not being entrenched but being another statute.  I will come a little later to it but may I just say this, that Your Honours will see referred to in that, with apparent approval, the general proposition which is in Ashby v White, namely that, in effect, if there is a wrong then there should be a remedy.  Your Honours, I am putting that a little inexactly but Your Honours will see that referred to in that case in Mr Justice McKay at page 6, Mr Justice Hardie Boys at page 11 and Mr Justice Gault at pages 16, 20 and 21.

Your Honours, in section C which commences at page 17, we deal with submissions concerning Mr Justice Priestley’s possible cause of action.  The principal matter which is dealt with there commences at the top of page 18, and that is the submissions made on behalf of South Australia which seek to identify the possible elements of the relevant tort.  So far as that is concerned, I do not think I need to add to the written submissions, except to say perhaps at paragraphs 73, 74 and 76 on page 21 that there are significant reasons for not providing for the element referred to in paragraph 71 as suggested by South Australia, namely that there should be knowledge of all the facts necessary to reach the conclusion that the threat be unnecessary.

It is suggested, Your Honours, in paragraph 81 that there should be a defence of justification and we would seek particularly to make the point that - it is set out in paragraphs 83 and 84 - it is always possible, even in the cases of trespass to the person, trespass to land, to show a socially worthwhile reason for the tort, but defences of that kind do not exist. 

Your Honours, turning then to section D page 24, submissions in relation to misfeasance in public  office, the issue was, as Your Honours will recall, in relation to that question, comes down to the question whether constructive knowledge is sufficient, and the point we come to particularly is the point that in the end if one goes to recent English decisions such as Calveley v Chief Constable of Merseyside (1989) 1 AC 1228 which is referred to in paragraph 99 of our written submissions, Your Honours will see that the issue there remains open. The relevant passage at 1240D is quoted in paragraph 99 where Lord Bridge said:

“... an act done in.....bad faith or (possibly) without reasonable cause.”

was sufficient to give rise to the tort.  So that, Your Honours, it cannot be regarded as closed by any of the earlier decisions. 

In relation to the further cause of action  - and that dealt with the rule of law, Mr Justice Angel’s cause of action, as it were.  Your Honours will see that dealt with at pages 32 and following.  We would draw attention, if we may, to the quotation at the top of page 33 from paragraph 2 of the New South Wales submissions saying:

that the rule of law is an assumption behind the Constitution as distinct from a constitutional principle.

Your Honours, so far, at the very least, as the Territories are concerned all the laws in respect of the Territories have to be made pursuant to section 122, it has to be a government of laws, and the terms of the Constitution contemplate, in our submission, if one looks at, for example, covering clause 5, that what will be done by the Commonwealth will be by way of laws not by way of arbitrary action and things such as. Speaking more generally, section 51(xxxi) relation to the acquisition of property reflect that.

Your Honours, all we are seeking to say is that underlying the propositions in relation to at least the position of the Commonwealth is that one is talking about a place governed by a rule of law. 

Your Honours, if I could go finally to paragraphs 115, 116 and 117.  First of all in relation to paragraph 115, the question of automatic recompense for ultra vires action is urged against us by New South Wales but, Your Honours, apart from the matters to which we referred in paragraph 14, governments of course have the ability to legislate to protect themselves against that.  Your Honours, in relation to paragraph 116, we would draw attention to the matters which we set out in paragraph 117, namely, that there is nothing unusual about having to draw a distinction between conduct which is intra vires or conduct which is ultra vires, conduct which is lawful or conduct which is unlawful and, Your Honours, we would refer Your Honours the other matters there set out.

Could we say finally, Your Honours, that in relation to the New Zealand case to which I referred a moment ago, Your Honours will see in paragraphs 119 and 120 we refer to the various passages at which the development of the remedy in that case is there discussed, may we say Your Honours that whilst that case depends upon the particular law of New Zealand, nothing in the passages to which we have referred is against the propositions we have advanced and the underlying theory of the case, in our submission, supports the contention of there being some such tort.

MASON CJ:  Thank you, Mr Jackson.  Mr Solicitor.  We have your preliminary reply.

MR PAULING:  Thank you, Your Honour.  May I first of all inquire whether the Court has the copy of the extracts from Smiths’ `Leading Cases’ concerning Ashby v White.

MASON CJ:  Yes, we have that.

MR PAULING:  Your Honours, I particularly seek to draw attention, and the reason I have had that copied and forwarded to the Court, concerns the fact that Lord Holt’s judgment in that case was revised by His Honour the Chief Justice.  The passages commence at page 327, which sets out the controversy that followed the Court’s intervention in Ashby v White and at page 328, with a side margin:

Fraud and malice averred in principal case.  Revised edition of Lord Holt’s judgment.

It is set out there:

It will be observed that the declaration in Ashby v White charged the defendants with fraud and malice.  Of this, according to the text, Lord Holt took no notice.  But in a revised form of his judgment, which he prepared himself, he observed that, according to the very words of the Statute of Westminster.the action lay, because fraud and malice were alleged in the declaration, and had been proved -

and then right down at the bottom of the paragraph there, and I draw attention to that as qualifying the basis on which the respondents have sought to use Ashby v White and Brasyer v MacLean as being two examples of liability resulting from failure to perform a public duty.

Your Honours, as to the other matters, I am content if the Court is to, in the short term, deliver a fairly brief written submissions by way of reply or, if the Court would be usefully assisted, I could use the next 10 minutes to deal with some particular topics.

MASON CJ:  Yes, well, you can develop your argument in the next 10 minutes, Mr Solicitor.

MR PAULING:  Thank you, Your Honour.  The first topic we would take Your Honours to is the concept of contravention of rights and we would say this:  that the proposition is put that “unlawful” in the Beaudesert formulation means in contravention of rights relying, as appears from the last occasion we were here, on what Justice Hanger at first instance stated, that the plaintiff in that case had rights which were contravened.

We would draw attention to the fact that the development of the argument in our learned friend’s additional submissions suggests that by the action of removing the gravel in the end, the pump was rendered useless but, really ,the proper characterisation of it is that the fact that there being no water there the pump might have been capable of working perfectly, but there was simply nothing to pump.  We say that the way in which the particular right is identified in the argument there does not follow from the facts of Beaudesert and is not in any sense relevant here.  We will put that in the references in our written point.

We say that in relation to the rights claimed here, that is, the right to move them from place to place and to sell them, that there were a large number of constraints not alone being the market constraint on cattle by reason of the fact that there was a reactor in the herd, the duty of care owed to neighbours in the event that cattle being trucked were to escape or otherwise cause the status of another herd to be changed and cause somebody else loss - - -

BRENNAN J:  How does that arise, that duty to neighbours?  What is the problem there if the fact was that the cattle were not brucellosis infected?

MR PAULING:  The problem was that there was a risk, a real and substantial risk - - -

BRENNAN J:  There was not, in the result - it may have been thought that there was, but there was not.

MR PAULING:  No, but he had assumed that cattle that had reacted, or a part of the herd that had reactors in it, had been trucked through a neighbouring property and had escaped so they had intermingled with a neighbour’s herd, then you have a situation where, until that herd is cleared, there are restrictions in relation to the way in which that herd can be dealt with.  Until it was established that the cattle that had got away and had intermingled were, in fact, clear, you would have to start testing the neighbour’s herd.  Even though animals that were taken for culture from the subject property, the first property, later proved not to have brucellosis, the other cattle would still be in a situation where the herd would have to be rendered suspect and go through a testing process.  That is not without huge expense and problems, the whole mustering of thousands of heads of cattle and testing and so on.  That is what we are saying. 

BRENNAN J:  Why would the other herd have had to subject itself to that?  Under what provisions?

MR PAULING:  Because the existence of reactor cattle in part of the herd that was being trucked would be such that, and I do not want to ‑ ‑ ‑

BRENNAN J:  But you are saying that if some of those escaped, which is one hypothesis by itself, but assuming that they did, that any herd into which they escaped would then be subject to some statutory limitation of movement?

MR PAULING:  Yes.

BRENNAN J:  By reason of what provision?

MR PAULING:  I have to look into the particular provision in the judgment.  It follows that any herd that has come into contact with stock from a suspect herd itself becomes suspect.

BRENNAN J:  From a herd that is categorised as suspect.

MR PAULING:  Yes, Your Honour.  This herd at that stage was.

BRENNAN J:  That is,categorised under the statute as suspect?

MR PAULING:  This herd was administratively classified as suspect, as it turned out, because the gazette did not apply.  Because of the absence of an approved program, that step was not available but it was not known at that time.  What I am positing is this:  that if a neighbour to the north heard that they were going to truck cattle through their property - the Stuart Highway runs through their property - and he was concerned as, I might say, not infrequently happens, there may be some accident involving the cattle trucks and there may be escape, that he could go to court and say “I want the court to grant me an injunction preventing them from moving the cattle through my place because the consequences of even one beast escaping are disastrous”.  It may turn out that some of the cattle do have brucellosis - very unlikely ‑ ‑ ‑

BRENNAN J:  It may turn out that the locks on the trailers are safe too.

MR PAULING:  It may do, Your Honour, there may be precautions that can be taken.  All I am saying is that if one is positing the proposition that you have got herds of cattle that might potentially become unsaleable, at least for a time, because of the escape of these cattle that there were duties owed to one’s neighbours. 

BRENNAN J:  If the duties were breached and damage followed, then there would be a cause of action.

MR PAULING:  Yes.

BRENNAN J:  But absent damage, there is no cause of action.

MR PAULING:  No, but there may well be a right to an injunction.  We are suggesting that there were interests over and above simply those passing between the Crown and the particular pastoralists who are the respondents in this case.  There was a wider community that had an interest in this.  That is how we come to the question of rights.  That it is not a question of saying, “Oh well, the government had no rights because it was not authorised by law to do what it was doing, and in any event there would not be any balancing”.  But there is a balancing between other people having a right to have their herds secure and kept away from possibly infected cattle.

TOOHEY J:  You are not trying to identify the government’s rights at this point, you are trying to identify the respondents’ rights, the interference with which might give rise to a cause of action.

MR PAULING:  Yes.  We are saying that it is not right to blandly say there was a right to trade with whom ever and when ever they wished in respect of cattle.  We say that the right was to deal freely with cattle which were not potentially infected.  These people were in a market where it has now been qualified that, all right, you could trade into the Northern Territory and to Queensland but not elsewhere unless you had further testing.  This is a case where, because they wanted to trade into South Australia they had organised further testing.  It was the fact of the reactor that caused the train of events to go on.

Could I just then deal briefly with the issue of misfeasance.  In response to a question raised by Your Honour Justice Deane with respect to negligence the respondents say that the issue is raised in their contention that a species of misfeasance is constituted by constructive knowledge.  And we submit in this regard the Court should reject the respondents’ submission of a tort of misfeasance be extended to provide liability on the basis of constructive knowledge because it is not supported, we say, by any authority and there is vast legal and policy implications would make such an expanse untenable.

Now the tort of misfeasance is aimed at protecting individuals from the deliberate abuse of power by public officers that is, and one can contrast honest but mistaken misapplication of powers.  We would refer the Court, and we will in our brief written submissions, to Balkin and Davis, Law of Torts at 780 which traces that history, and it is only when one gets to Farrington v Thomson that there is a clear and explicit statement that there are alternatives, and that is malice or knowledge of lack of power, and we will be referring to the fact that in our submission, the test that our opponents put forward is an objective test and we say that the only proper test in a case of misfeasance requires upon the state of mind of the officer at the time he did what he did that is impugned.

Your Honours, we will deal with the way in which particular cases are relied upon, for example, Tampion v Anderson in Pemberton and in our submission, our opponents’ additional submissions in so far as they suggest that the question of constructive knowledge is left open, we say that when properly analysed those passages do not even contemplate it.

Could I finally deal I think, Your Honour, with Your Honour Justice Deane, in respect of the matter of negligence.  I have given some thought to what I thought Your Honour was saying.  Perhaps if I can approach it this way: as I understand the general proposition, in Burnie Port Authority v General Jones Pty Ltd the Court was looking at the question of whether there was a non-delegable duty of care in respect of an independent contractor doing the work that was being done in that case and the majority there referred back to Kondis v State Transport Authority, a judgment of Justice Mason as he then was, in which Your Honours Justice Brennan and Deane agreed.

My understanding of the proposition there is that there, are from time to time, certain special relationships that might give rise to a different level, if you like, or a more stringent duty and that is a duty to ensure that reasonable care is taken and as I read the transcript of what passed between Your Honour and myself on the last occasion, I think that is the distinction that was being drawn. 

That is that departure from the basic principles of liability and negligence by substituting for the duty to take reasonable care, a more stringent duty, a duty to ensure that reasonable care is taken.  But when one looks then to the type of relationships discussed in Kondis as for example, the relationship between a hospital and a patient or a school authority and a principal and compares it with the business arrangements here, we are talking about a multi-million dollar business and a stock inspector is an officer of the government.

We also look to what was said in Kondis about special dependence or vulnerability.  With respect, the relationship between the parties in this case cannot in those circumstances by analogy or otherwise, we say, give rise to a more stringent duty, that the duty here was a duty to take reasonable care, that the findings are only consistent with that duty having been discharged or at least that there was no proof that they were in breach of such a duty, and that therefore it follows that one cannot develop in a sort of general sense, a motion of negligence on the part of the government without it being able to ascribe to particular officers some activity which, on the ordinary principles of negligence, was in fact negligent.

Those are the matters I wanted to put orally, Your Honour, and we will in short term put in written submission that pick up the particular references and pages and cases.

MASON CJ:  The expression you use is “short term”.  What is that intended to signify precisely?

MR PAULING:  All of those involved on our side, Your Honour, want to be ended with this case by the end of the week, and I am happy to bind myself to that timetable. 

MASON CJ:  I notice at the end of your preliminary submissions you suggest 14 days.

MR PAULING:  Yes, I do not need that.

MASON CJ:  Yes, I would have thought that if you can get your submissions in within 7 days that would be satisfactory.

MR PAULING:  Yes, Your Honour, I am more than happy with that.

MASON CJ:  Very well.

MR PAULING:  May it please the Court.

MASON CJ:  Thank you, Mr Solicitor.

MR JACKSON:  Your Honours, may I have leave to say one thing in response to my learned friend who discussed the question of neighbours obtaining injunctions and so on.  In the ordinary course of events, an undertaking as to damages would have to be given by the person seeking an interlocutory injunction.

MASON CJ:  The Court will consider its decision in this matter.

AT 11.06 AM THE MATTER WAS ADJOURNED SINE DIE