Wingecarribee Shire Council v Ah Tong

[2005] HCATrans 44

[2005] HCATrans 044

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S33 of 2004

B e t w e e n -

WINGECARRIBEE SHIRE COUNCIL

Applicant

and

ROSIE LUCIA AH TONG

Respondent

Office of the Registry
  Sydney  No S34 of 2004

B e t w e e n -

WINGECARRIBEE SHIRE COUNCIL

Applicant

and

RONALD KELVIN AH TONG

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 2005, AT 9.45 AM

Copyright in the High Court of Australia

__________________

MR J.E. MACONACHIE, QC:   In both of these applications I appear with my learned friend, MR J.C. SHELLER.  (instructed by Phillips Fox)

MR D.E. BARAN:   May it please, I appear for the respondent.  (instructed by Buttar Caldwell & Co)

GLEESON CJ:   There are two matters just because there are two parents originally.

MR MACONACHIE:   That is so, your Honour.  There are two short, crisp points that we submit give rise to a grant of special leave.  The first is what I might call a David Jones v Stone point and the second is the manner in which the Court of Appeal interfered, they having done so, in our submission, by having misunderstood the way in which the trial judge decided the case.  Can I take your Honours in the first instance to what the trial judge had to say at page 17 of the application book, at line 10:

In this case it is not sufficient for the plaintiff to suggest signs or fencing in a general way without detail or evidence, and hope that the court thinks one or the other is a good idea so as to throw the burden onto the defendant to prove the contrary – especially without knowing the detail of what is proposed. 

Both Justice Giles, who delivered a separate judgment, and Justice Ipp, with whom Justice Tobias agreed, entirely misunderstood, in our respectful submission, what it was that his Honour was saying when he spoke of such signs. 

Can I take your Honours to page 53 of the application book where we deal in very short form with the way in which the visitorial point, if I can call it that, arose.  The trial judge – top of page 54 if I can take your Honours there – had rejected a case based on signs at or near the picnic ground.  The reference to such signs and no direct evidence was a reference to hypothetical signs of which there was no evidence as to locality and content in respect of which, therefore, there could be no direct evidence.  Can I take your Honours to what the trial judge said about it at page 11.  Between lines 15 and 30, and I will not read it your Honours, he spoke of the one sign that was now on the road but not on the road up to the picnic ground at the time of this tragedy.  He then, at lines 35 to 45 says, clearly and unambiguously:

As to other signs, nothing is before me as to precisely where such signs should have been placed . . . There is no direct evidence that if the plaintiff had seen such signs it would have made any difference to his behaviour -

and that has to be understood in the context of what appears at page 17 and to which I have taken your Honours. 

Can I invite your Honours to look at the way in which that material was dealt with by the Court of Appeal.  Can I take you to page 40 where the point starkly appears in the judgment of Justice Ipp:

The reference to “such signs” is to a sign that was placed in Oxley Drive after Everard’s death indicating, in black, against a yellow diamond, a representation of a person falling off a cliff with the words -

et cetera.  That is precisely what Judge Dodd did not say.  What Judge Dodd said at page 11 was, yes, there is now a sign at the bottom of the hill, but as to other signs there is just absolutely no evidence at all, and then at page 17 he makes the point that is just not sufficient for the onus bearer to suggest, to invite speculation and the like.  The Court of Appeal entirely misunderstood the manner in which the trial had proceeded, the evidence that was before it and the causation evidence which was critical to the manner in which the case was decided.

GLEESON CJ:   Have a look at the finding on paragraph 76 on page 40 going over to 41. 

MR MACONACHIE:   But, your Honour, the first proposition is that there was no evidence of the sign or signs that might or might not have impacted upon Mr Ah Tong’s mind.  More importantly, the proposition that there is nothing to suggest that Mr Ah Tong’s evidence on this issue should be accepted – there is and it appears from an examination of Justice Ipp’s reasons.  Can I take you to ‑ ‑ ‑

GLEESON CJ:   Just before you go, the evidence that he is referring there to is presumably the evidence summarised in the second paragraph on page 40.

MR MACONACHIE:   Or the first paragraph on page 40.

GLEESON CJ:  

Mr Ah Tong testified that if he had known that there was a disused cliff in the area he would not have taken the children on the walk. 

MR MACONACHIE:   Yes, but ‑ ‑ ‑

GLEESON CJ:   Well, now, all we are looking for is some kind of sign or indication to Mr Ah Tong that there was a disused cliff in the area.

MR MACONACHIE:   We are looking, with respect, to some evidence of what a sign, a hypothetical sign, one of which there is no evidence as to its content, its position and the like, what Mr Ah Tong would have said about it or what impact it would have had upon his mind.  But Justice Ipp says: 

there is nothing to suggest that Mr Ah Tong’s evidence on this issue should not be accepted.

But there is.  At page 31 of the appeal book, line 25, Justice Ipp speaks of:

two “well-worn” tracks leaving the grassed area -

This is what Mr Ah Tong spoke to -

The tracks were at different angles to the grassed area and he thought that they were part of a single circular track -

At 33, line 20, at a later point in the journey, if I can call it that:

He encountered a log lying across or alongside the track.  At that point the track curved and there was a “little drop”.  This caused Mr Ah Tong to think that the track led to the base of Mt Gibraltar -

which is entirely different from what he had thought at the commencement of the journey but then in the very next paragraph:

Mr Ah Tong walked back to the picnic area with Joshua . . . When he returned to the picnic area he discovered that Everard was not behind him.  He thought that Everard might have continued on the circular track -

The evidence given by Mr Ah Tong at those three points in time, at the start of the journey, when he turned back and when he got back to the picnic ground is internally inconsistent.

The trial judge had the opportunity of observing Mr Ah Tong, in tragic circumstances, but he had the opportunity of observing him.  There was material on which he was entitled not to be persuaded and, as he observed, there was very, very little evidence and he came to the conclusion that the case made for the plaintiff should not succeed.  That must involve, in our respectful submission, some assessment of the demeanour or measure of Mr Ah Tong and a case that is, therefore, immune from appeal.  That was just entirely overlooked by the Court of Appeal.  First, they misunderstood the evidence on causation as to whether or not there were signs or no signs, what Mr Ah Tong would have done and, secondly, they interfered by saying there is nothing to suggest that Mr Ah Tong’s evidence should not be accepted.

Plainly, there was, and the trial judge, charged with the responsibility of finding the facts of which demeanour and the like is an important element, found that he was unpersuaded that the Court of Appeal were not entitled to interfere and, accordingly, this Court should interfere in order to ensure that the philosophy that your Honour referred to just recently in Swain’s Case, that is that our system of justice requires determination by trial, not by the escalator of appeal, if I can call it that.  Justice Brennan has said so, Sir Garfield Barwick has said so and, particularly in smaller cases and cases involving public authorities, of which there are very many.  For those reasons, your Honours should interfere for the reason that there has been a miscarriage of justice in the particular case.

Can I turn very briefly to the Stone point.  As your Honour Justice McHugh said recently, Lord Devlin was one of the greatest judges of the twentieth century.  His judgment in Phipps v Rochester Corporation deals specifically with the point we wish to raise, which this Court should look at.  It is 1970 since the point has been looked at by this Court in David

Jones v Stone.  It is of considerable importance, particularly to public authorities, and this case raises squarely, we would submit, the question of whether or not and to what extent, when children of tender years are brought on to, particularly public land, to what extent can the occupier, the duty ower, rely on the parent or custodian or guardian to take care for the safety of the child.  That is a point of importance and one that this Court can, in the circumstances of this case, and should, we would respectfully submit, examine because it is one of importance to the community generally, but particularly to public authorities.

GLEESON CJ:   If you are wrong on your first point, it is the answer to this point, is it not?  Mr Ah Tong said, “If I’d had any indication that there was a disused cliff there I would never have brought this child onto that part of the land”.

MR MACONACHIE:   I am not quite sure I understand what your Honour is putting to me. 

GLEESON CJ:   You challenge that finding by the Court of Appeal.

MR MACONACHIE:   Indeed.

GLEESON CJ:   You may be right or you may be wrong, but suppose you are wrong in challenging that finding by the Court of Appeal.  If there is an extant finding of fact that Mr Ah Tong would never have brought the child on to the relevant part of the land if there had been some kind of indication to him of its condition, I am not sure how this point arises.

MR MACONACHIE:   I think that is so, your Honour.  I think that that must follow.  They are our submissions, your Honour. 

GLEESON CJ:   Thank you, Mr Maconachie.  We do not need to hear you, Mr Baran.

The Court is of the view that this case does not raise an issue suitable for a grant of special leave to appeal and we are not persuaded that the interests of justice require it.  The application is dismissed with costs.

AT 9.59 AM THE MATTER WAS CONCLUDED