Woolcock Street Investments Pty Ltd v CDG Pty Ltd and Anor B19/2003

[2003] HCATrans 821

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B19 of 2003

B e t w e e n -

WOOLCOCK STREET INVESTMENTS PTY LTD

Appellant

and

CDG PTY LTD (FORMERLY CARDNO & DAVIES AUSTRALIA PTY LTD)

First Respondent

JOHN CAMERON JOHNSON

Second Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 23 JUNE 2003, AT 2.17 PM

Copyright in the High Court of Australia

__________________

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends, MR A.M. DAUBNEY, SC and MR G.D. BEACHAM, for the appellant.  (instructed by Gilshenan & Luton Lawyers)

MR P.A. KEANE, QC:   May it please the Court, I appear with my learned friends, MR P.D.T. APPLEGARTH, SC and MS A.M. HOCH, for the respondents.  (instructed by Thynne & Macartney)

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  Your Honours, may I something very briefly about the facts before moving to the issues.  In 1992 the assumed facts ‑ ‑ ‑

HAYNE J:   It will be necessarily brief given what little we have.

MR JACKSON:   Quite, your Honour.  The assumed facts – in 1992 the appellant purchased commercial premises, a warehouse and offices in Townsville.  The premises had been built a few years before, commencing in 1987 and finishing in 1988.  Major problems emerge in 1994, two years after the appellant’s purchase of the building, and, as your Honours will see from the agreed facts, page 4 paragraphs 23 to 25 there was:

Substantial structural distress . . . due to the settlement of the foundations and/or the material below the foundations of the Complex.

Your Honours, the appellant’s contention in the proceedings is that the settlement of the foundations was due to faulty design or supervision of construction by those retained by the original owner in that regard, namely the respondent.  The allegation of negligence is denied, of course, but the present issue arises out of an anterior point, namely whether if the assumed facts were proved we would have a cause of action.

Now, your Honours, the questions thus arising are ultimately two.  May I proceed to indicate first the way in which they arise and, secondly, what they are.  Your Honours, 40 years ago in Voli v Inglewood Shire Council (1963) 110 CLR 74 the Court held that an architect who had designed negligently and inadequately the foundations, the floor joists, as it were, for commercial premises, namely a hall in a country town, was liable for damages for personal injuries to persons who were using it for commercial purposes, namely a meeting of an association or trade association, when its floor collapsed due to the inadequacy of the design. Those injured, your Honours, were not the persons for whom it had been built.

In this Court – and I emphasise the words “in this Court” for a reason to which I will come in just a moment – the law moved a little further.  In Bryan v Maloney (1995) 182 CLR 609, when the Court held that a subsequent purchaser, meaning by that not the person for whom the building had been constructed but a successor in title, could recover the cost of the negligent design to the building – the cost of repairing, to put it shortly, the building. Your Honours, that had the consequence that the person responsible for the negligent design was liable for three things. To take an example, if a wall fell down and killed or injured someone – it might be the then owner but it might not be – then the building professional, if I could use that expression, responsible was liable for their damages for personal injury.

Again, your Honours, if the damage was damage to property, for example, the owner’s furniture or motor vehicle was destroyed or damaged by a falling wall, the building professional again was liable in respect of the property damage.  Bryan v Maloney dealt with the situation where the wall had not fallen over yet.

GLEESON CJ:   Why did you limit that second proposition to the owner’s property?

MR JACKSON:   I am sorry, your Honour, I did not intend to do that.  I was simply using it by way of illustration as distinct from endeavouring to limit it.  Your Honour, Bryan v Maloney dealt with the situation where the wall had not fallen over, but the physical indications that it would or could had become apparent and, in a sense, damage which is the final element in the relevant cause of action in tort had arisen.

Your Honours, Bryan v Maloney held that the negligent professional was liable to the person who then had to bear the cost of making sure that the wall, to put it shortly, did not fall down.  Your Honours, I am sorry if that linked the introduction to try to indicate the starting point.  I said in relation to Bryan v Maloney it was something done in this Court.  It had been earlier been so held in the Full Court of the Supreme Court of Queensland in relation to an industrial building.  I will come to that a little later, if I may.

KIRBY J:   This is before Bryan v Maloney?

MR JACKSON:   Yes, a few years before, and referred to, if I can put it mildly, without disapproval by the judgment of three members of the Court in Bryan v Maloney.  It is the first case referred to in footnote (61) in that decision.  Your Honours, most buildings, of course, are intended to be permanent.  Inevitably they are likely to change hands.  The identity of the owner ‑ ‑ ‑

CALLINAN J:   Mr Jackson, I am just having a little trouble hearing you.

MR JACKSON:   I am sorry, your Honour.  I had not appreciated I had moved away from the microphone.  Your Honours, I was endeavouring to say this, that most buildings are designed to be permanent.  Inevitably ‑ ‑ ‑

HAYNE J:   Designed with an intended lifespan.

MR JACKSON:   I am sorry, your Honour.  I was using “permanent” in the sense of not being carted away, as it were.  Designed with an intended lifespan, I accept that, your Honour, or perhaps designed with no particular view as to any lifespan but being buildings which are to live in the ordinary course of events.  Your Honours, the point I was seeking to make though was that the identity of the person who is the owner at the time when the consequences of faulty design manifest themselves tends to be a matter of coincidence of time and person rather than necessarily one of choice.

Could I come then, your Honours, to what are essentially the two issues in the case.  They derive from our learned friend’s argument.  One is that Bryan v Maloney is said to refer only to residential premises.  The premises in the present case were commercial and the principle in Bryan v Maloney should not be “extended”.  That is the first thing, your Honours.  The second thing is that it is suggested that – and perhaps this is put as the other argument – arrives at a position where an…..that Bryanv Maloney is wrong and it should be overturned.

McHUGH J:   Maybe there is a third issue.  Maybe Bryan v Maloney can be supported but on a different ratio.  The distinction between domestic premises and commercial premises is not a happy one, but perhaps the true principle turns on questions of vulnerability, that ordinarily the purchasers of domestic premises are vulnerable, they are not in a position to bargain with vendors for warranties, whereas where the owner of a building is, say, an investor, a person of means, that person is, so a duty may be owed in one case but not in the other.

MR JACKSON:   May I say three things about that, your Honour.  The first is it is very difficult, in our submission, to draw a line at residential premises and there are difficulties in maintaining the distinction, in our submission.  That is the first thing.

KIRBY J:   Justice Brooking really nails that distinction on the head, in the Victorian Court of Appeal.

MR JACKSON:   Yes, in his list of questions, to which I will come a little later and endeavour to give answers to the various ones, he does not seem to like that very much.  I have mentioned the first point, your Honours.  The second point is this, that what your Honour has put to me really tends to indicate that the cases do, in the end, turn very much on their own facts.

McHUGH J:   Well, exactly, and it may be that, on one view, this appeal should go out and the question answered, “Unable to answer”, or not answer it and remit it back for a trial.

MR JACKSON:   Your Honour, could I say ‑ ‑ ‑

KIRBY J:   With a little bit of guidance perhaps.

McHUGH J:   Perhaps an amendment of the pleadings.

HAYNE J:   Like a few pleas about why there is a duty.

MR JACKSON:   Your Honours, the first aspect of the relief that your Honour has suggested, we would be perfectly happy with.

KIRBY J:   You do not get that on its own.

MR JACKSON:   The second would be we would have to see what it was.  Your Honours, the third thing I was going to say was this, that one aspect of it being in the end a question of fact is that what your Honour was putting to me does involve, of course, a number of generalities and general assumptions about the position of people.  As we have endeavoured to say in our written submissions paragraph 32, it is not really right to say that commercial purchasers are always in a stronger position.  They may ‑ ‑ ‑

McHUGH J:   No, they may not be.  Take the case of the person who buys the mixed business with a residence attached and they either succeed or fail.

MR JACKSON:   Your Honour, if I could just give an example I was intending to use a little later.  It is this:  if you take the case of someone, say, a lady who buys a duplex, half to live in, half to run a travel agency from.  It really seems odd that her position in relation to one side of the building would be different from that in relation to the other.  Her bargaining power, even if she was buying the whole building for commercial purposes, in relation to a person, may be stronger or weaker.  It depends who is selling.  It depends on the market.

HAYNE J:   Would it be a question that would depend upon, be affected by, the particular bargaining power that an individual had, his duty to be resolved by regard to that particularity of information?

MR JACKSON:   Your Honour, in some cases the answer would be yes, not always, because what one would have is a situation which is this:  one is speaking inevitably about the purchasers of premises from someone who already is the owner of them and the premises are in a particular state.  Now, the way in which the decisions have been based so far appears to recognise that in relation to the activities of the person whose negligence, or whose lack of care, caused the difficulty, that person should have foreseen that there would be persons in the position of the person who is the plaintiff in the case.

Now, what is meant by being in the position of the person who is the plaintiff can have effects, not so much in relation to duty, but in relation to whether the person is able to sue, sue successfully, or for 100 per cent.  It may be a contributory negligence issue.  All I am trying to say is that it may not go to the duty; it may well go to the question of contributory negligence.

HAYNE J:   In the case stated we do not have, do we, the contract that was made by the appellant for the purchase, or do we?

MR JACKSON:   No, we do not.  I do not think so, your Honour.

HAYNE J:   Thus, for example, we do not know whether, in this transaction, there was a standard form of contract which, in fact, was adopted.  We do not know from the case stated whether there are standard forms of contract commonly employed for the sale of commercial buildings, though I suspect we might be permitted to know that there are standard forms of contract for sale of domestic properties.  Now, are those matters which can or should bear upon this question of vulnerability, of capacity to bargain?

MR JACKSON:   May I just say in relation to the particular case first, your Honour, I think all there is is in paragraph 21 at page 4, what is referred to is the fact that there was not a relevant warranty.

HAYNE J:   Just so.

MR JACKSON:   Your Honour, nor, I think, is there evidence which would indicate that there was a particular form of contract very commonly adopted for the use of these premises, although one would be surprised if there were not provisions that were in fairly common use.

Your Honour, in relation to the ambit of the duty and contracts of that kind, our submission would be this:  one is looking, at the moment, from the point of view of the person who is assumed to be negligent and the reason for holding the person to be negligent is, amongst other reasons, that the person should have foreseen that the person might suffer damage.  Your Honour, the damage that is likely to occur is damage to the building, the nature of the damage being the cost of rectification.  So that is, in a sense, what brings about the duty, and it would be really immaterial in a sense to that, whether the person who – one is speaking inevitably at a later time than when the work was done ‑ ‑ ‑

KIRBY J:   You say it is irrelevant but that leaves an open‑ended liability down successive purchasers and vendors and that seems to be one of the reasons why the law has set out to draw a line.  I do not think any other jurisdiction has drawn the line that is suggested in Bryan v Maloney of commercial and domestic, but drawing of lines is not unknown in this area of discourse.

MR JACKSON:   Your Honour, could I say that the notion that one goes from person to person, to person to person, carrying with it the notion that one is speaking about a time line that goes on for a very long time is not, with respect, correct because what you have is the that the damage occurs at a particular time.  It happens once.  When that happens, the person who then is the owner, be it the original owner, being it the second or third purchaser, is in a position where – that is the point.  This is not a series of points.  This is the one.

GLEESON CJ:   When does the damage occur?

MR JACKSON:   The damage occurs, your Honour, when there is some fault in the structure of the building.  That will be the ordinary case.  There may be more sophisticated versions of it.

GLEESON CJ:   As distinct from when it manifests itself?

MR JACKSON:   Your Honour, I was really working on the assumption that the two happened at the same time, but it is really a question of when it manifests itself in a way that one could expect to see it.

GLEESON CJ:   There is a fault in the structure of the building from the outset, is there not?

MR JACKSON:   Yes, there is, your Honour.  It may not have caused a problem at the earliest point.

GUMMOW J:   You deal with this in paragraph 5 of your reply, do you not?

MR JACKSON:   Yes, I think so, your Honour.

KIRBY J:   That picks up what was said in Bryan.

MR JACKSON:   Yes.

KIRBY J:   When I read it, it did not seem to me a very convincing way of cutting it off, in practice.

MR JACKSON:   Your Honour, if there was only one owner, it is a very effective way of cutting it off.

KIRBY J:   That is your case, Mr Jackson, but we have to look at it from the point of view of the next case and the case after that down the line and try to find a stable principle.  I think you have made a very persuasive case that the distinction between domestic and commercial is not a stable principle.  No other jurisdiction has settled on that but the thought that builders, or engineers and architects, will be liable down several acquirers of property, perhaps down generations, is a rather worrying one.

MR JACKSON:   Your Honour, could I say this.  By multiplying the number of persons who have been owners of the house one says a lot of people are involved but in reality, in our submission, that is not so because one is speaking about which person happens to be the person at the time when – however one identifies it – the damage occurs.  Your Honour, that is one person, not a number.  That is adverted to – if I can give your Honours the references in Bryan v Maloney 182 CLR in two places, I think. First, could I go to Justice Toohey at page 663. At the bottom of that page his Honour says:

Furthermore, there is a very direct relationship between the negligence of the appellant and the loss sustained by the respondent.  It is only a matter of timing that the cracks in the wall appeared while the respondent was the owner rather than Mrs Manion.

The earlier owner.  To the same effect, your Honours, in the joint reasons at page 626, commencing at about point 6 and, in particular, it goes to the bottom of the page and the last four lines on the page:

Moreover, any difference in duration between liability to the first owner and liability to a subsequent owner is likely to do no more than reflect the chance element of whether and when the first owner disposes of the house.

KIRBY J:   Bryan v Maloney was, itself, about a dwelling house and therefore in point of legal principle in order to solve the problem in Bryan v Maloney the Court only had to deal with a dwelling house and for that reason anything that was said about the extension of that principle to commercial premises is not strictly necessary for the decision in the case.  Is that correct?  It is put in there to justify saying, “Well, this is a consumer protection‑type case and therefore we can justify this particular imposition of the duty of care but it was not necessary to Bryan, dealing with a dwelling house, to exclude commercial premises in order to reach the orders in that case”?

MR JACKSON:   Your Honour, may I say this in relation to it.  There are really two points about it.  One is that Justice Toohey seems to have placed more a reliance upon the dwelling house aspect of it.  I will come to his reasons in just a moment.  So far as the joint reasons of the three members of the Court are concerned, it is right to say that the joint reasons do refer to the nature of the premises and they use the words “dwelling house” but one should note the context in which the observation is made.  If your Honours look at that at page 630, it is in the last substantive paragraph of the reasons where their Honours say about five lines into the paragraph:

In particular, the nature of the property involved, namely a building which was erected to be used as a permanent dwelling house, constitutes an important consideration –

It is the use of the expression “permanent” that is the one of significance, in our submission, because what they are speaking of is not so much the fact that it is a dwelling house but that it is to be a building which is designed to be used, or intended to be used beyond the first owners, as it were.  I know that people live in houses for 50 years and you might not want to have them after they have been living there 50 years, but having said that they are speaking about a building that is likely to have, when built, more than one owner.  It is a permanent building as distinct from something less permanent.  In the next sentence after that one sees that the Court has left open the position in other cases.  Your Honours will see their Honours said:

That being so, the decision in this case is not directly decisive of the question whether a relevant relationship of proximity exists in other categories of case or as regards other kinds of damage.

They then exclude cases of chattels.  I mentioned Justice Toohey’s reasons.  At page 663 in the first paragraph under the heading “Policy considerations” and also at page 665 under the heading “Conclusion” his Honour did give some emphasis to the fact that a dwelling house was involved but he did not, in our submission, exclude the possibility of other cases being involved.  Could I also say, your Honours, that in relation to the ‑ ‑ ‑

KIRBY J:   Can I just ask – Justice Brennan dissented.

MR JACKSON:   Yes.

KIRBY J:   Was that because of the view he held concerning proximity or was it on some other basis?  Is there any light thrown on the issue before the Court by Justice Brennan’s dissent?

MR JACKSON:   I think not, your Honour.  The essence of what his Honour says I think appears at page 655 in the penultimate paragraph on the page.  Could I also say that one sees that in – and this is dealing with the question of whether the decision in Bryan v Maloney was intended to refer only to residential property.  Could I say this, that if one goes to the decision in Bryan v Maloney and, in particular, to page 619, at the bottom of the page, one sees in the last sentence on that page and the top of the next page a reference to footnote (61).  Footnote (61) is the one to which I adverted before.

Your Honours will note the reference to National Mutual Life Association of Australasia Ltd v Coffey & Partners Pty Ltd [1991] 2 Qd R 401. That was a decision of the Full Court of the Supreme Court of Queensland in which the engineers were sued in respect of the damage caused by what was suggested to have been an inappropriate foundation system used in the construction of an industrial building and the plaintiff was not the party for whom the building had been built in the first place but a subsequent purchaser.

Now, the proceedings, it is right to say, were proceedings in which the issue was whether, as here, the pleadings disclosed a cause of action, which I hope is appropriate here.  Your Honours will see Justice Connolly at page 402, who wrote the principal judgment, at about line 31 saying that:

The action arises out of the purchase by T & G Mutual Life Association Limited from the third defendant . . . of land at South Brisbane on which was erected what is described in the pleadings as an industrial building.

Between lines 40 to 45 he indicates the role of the relevant defendant.  At about line 47 he indicates the allegation that was made about them.  That goes on to the top of the next page.  The nature of the damage claimed is at page 403 between lines 10 and 15.  At page 405 at about line 40 his Honour was referring to Sutherland Shire Council v Heyman.  He adverts to the fact that:

For present purposes however Sutherland is important for the recognition that the Council, insofar as it had any duty in the matter, owed it to subsequent purchasers.

He refers at about line 49 to the plaintiffs – he is speaking there of the Sutherland Case – being subsequent purchasers, then goes on to deal with the issue of present relevance at page 406 at about line 14.  He says:

This is not of course a case of a public authority and the extent to which it may relevantly be said that a subsequent purchaser relies on the due exercise of professional skill and judgment by designing engineers is not the subject of binding decision in Australia.

I will not read it out but his Honour goes through the whole of that paragraph and your Honours will see the concluding words between lines 25 and 29 and then in the next paragraph says that:

the pleading could not have been struck out on the basis that the necessary relationship to found the cause of action in negligence could not exist –

Your Honours, that, as I said, was a case of an industrial building and it was a case that was referred to, as I said a moment ago, in Bryan v Maloney in footnote (61) without apparent disapproval.  The National Mutual Case had been followed by Justice Southwell in Victoria in Opat v National Mutual Life [1992] 1 VR 285, which, again, was on the losing side of it, your Honours – I am sorry, I thought your Honours had this; I will give your Honours copies of it now – at page 295 about point 8 on the page. I am sorry your Honours did not have that.

HAYNE J:   Do you support the reasoning for notions of reliance that we see in the Coffey Case?

MR JACKSON:   Yes, your Honour.  Yes, I do.  I do, if I can put it this way, to a degree.

HAYNE J:   To the extent which it helps you, no doubt.

MR JACKSON:   Of course, your Honour.  The reason why I put it that way, your Honours, is that if one is looking, for example, at Perre v Apand to identify what is the test, one sees that a number of tests are suggested and in various places various members of the Court suggest that likely reliance is a matter of some significance.

What I was going to say about it, your Honour, is that the relevance of reliance is a matter which is likely to vary from case to case but if one is talking about something like the foundations of a building and the subsoil beneath them, in the nature of things it is unlikely that in relation to a purchaser of a building, whether it be a large residential building, a large city commercial building, an industrial building, it is unlikely that the purchaser is going to dig them up and inspect what is underneath.

HAYNE J:   No, but there are other ways of dealing with the problem than that rather direct method, Mr Jackson, such, for example, as look at the plans and look and see whether there were any sufficient soil tests.

MR JACKSON:   What I would say about that, your Honour, is that it depends very much, in a sense, on what is available.  Now, that is where the issue is one that is likely to vary from case to case where the extent to which there is likely to be reliance, or there may be reliance, is something that will vary.  In the Full Court decision in Queensland that I referred to a moment ago, one saw that on a second aspect of the case, to which I have not taken your Honours, that the fact that the purchaser knew there was some problem with the foundations was held not to have the effect that it could not succeed.  It was recognised that it might not succeed, but it was held the feature which did not lead to the consequence that it necessarily would fail.

So, your Honour, I would perhaps say two things, really.  Reliance is regarded as a factor, the possibility of reliance, and if one has a situation where a consulting engineer is retained in relation to premises, and one knows that a consulting engineer has been retained, it is hardly surprising that one would find it perfectly reasonable for there to be reliance by a subsequent purchaser.

HAYNE J:   Now, you speak of reliance.  Is the question:  I the plaintiff did rely, or I the plaintiff am in a class of persons who may be expected to have relied?

MR JACKSON:   Your Honour, there are really two questions.  So far as the extent of the duty is concerned, one would see the engineer being in a position where it should be reasonably foreseeable to the engineer that persons may rely on the fact that the foundations appear satisfactory.  Now, so far as the individual plaintiff is concerned, the fact of reliance and the other opportunities available to diminish one’s own damage are matters which in the end would go to, I suppose, two things.

One would be whether there was in fact reliance.  The other would be whether it was appropriate in terms of contributory negligence for there to have been such a degree of reliance.

KIRBY J:   Now, in the end – and I am not criticising you for this – you try to find the principle in Perre and ultimately you appear to alight upon Justice McHugh’s salient features.  It is in paragraph 30 on page 9.  So that the word may have been Justice Gummow, but you then go through the five factors identified by Justice McHugh.  I cannot forbear to mention that both you and Mr Keane have relied upon arguments of policy and principle, which of course is the Caparo test, that I must not any longer adhere to and must abandon, but reliance is not one of those matters that you have listed in your set of considerations which is in (f).

MR JACKSON:   I am sorry, I am not sure which document your Honour is looking at at the moment.

KIRBY J:   I am referring to the appellant’s submissions, paragraph 30, the list of “salient features”, the five factors identified by Justice McHugh.  Now, if you go through those one by one - and I am just taking up your answer to Justice Hayne - none of those seem to refer to reliance, unless it is the last one.

MR JACKSON:   Your Honour, if I could just say that Justice McHugh, in paragraph 50 of his reasons in Perre v Apand 198 CLR, refers to vulnerability and I think, although I do not have the exact reference to it, that your Honour was speaking of vulnerability in circumstances where vulnerability might be brought about by ‑ ‑ ‑

KIRBY J:   Vulnerability is only one of the factors.  I mean, it may be that there is not much difference between looking to the issues of policy and principle which is the Caparo Case, the one I favoured, and the so‑called salient factors, picking out those matters which in the facts tend to point the mind towards the duty or a non‑duty situation.  It may be that they both ultimately mean much the same.

GLEESON CJ:   What could possibly make a factor salient except principle?

MR JACKSON:   Your Honour, that is true, no doubt.

KIRBY J:   There is an awful lot of reference to policy in your submissions, Mr Keane’s submissions, Justice Toohey’s judgment in Bryan.  I mean, we can try to find facts, but ultimately we have to consider:  does the policy of the law draw a line here and, if so, by reference to what principle?

MR JACKSON:   I suppose in one sense, your Honour, if one is speaking of the policy of the law and the law, the same thing in a way, but what appears to be the position, if I can put it in broad terms at the moment in consequence of Perre v Apand is that one looks to see what are the basic facts, as it were, and having looked at those facts, one sees the nature of the claim being made.  If the nature of the claim being made is one that is for pure economic loss, as it were, one then looks to see what are the features of it and how they compare with existing causes of action that have been held to exist – and, your Honour, one inevitably comes back to some aspect of it, whether it be negative or positive – whether there is some reason why there should not be liability in respect of that.

What we say in a case like this, your Honours – and this is the point I am seeking to develop at the moment – is that what was said by the Court in Bryan v Maloney was one that was not very new.  One had seen similar things in the National Mutual Case and in several other cases to which I will refer very briefly.  There is a clear relationship between the conduct that gives rise to liability in exactly the same person in the same circumstances where there is damage to property or personal injury.  It is a case where one sees that the damage, although economic in one sense, is clearly, and very clearly, closely related to physical damage to the building, and in those circumstances there is no reason for the policy of the law or the law to say that the ability to recover for the damage to the building, as distinct from the damage to the person, by the falling brick, or damage to the car by the falling brick, could not be recovered.  I think I have ‑ ‑ ‑

GLEESON CJ:   Is not one of the reasons for the difficulty the courts have had over the years dealing with this kind of problem that you are right on the dividing line between damage to property and pure economic loss?  We are not here dealing with a case with a tenant of the building had to go out of occupancy and cease carrying on a business for six months while the repairs were effected.  That is why I am concerned about your references to when the damage occurs and when the damage manifests itself.  If they mean the same thing, then the damage is occurring when your client is the owner of the property and it never occurred to anybody else.

MR JACKSON:   In one sense, your Honour, yes, that is right.

GLEESON CJ:   But in another sense it is not right because, if tests had been carried out at the time your client purchased it, your client presumably would have said to the vendor, “You’re selling me a damaged building.  It has insecure foundations”.

MR JACKSON:   And, your Honour, I suppose three things could have happened.  One would be that we would not go ahead.  The second would be that we might try to bargain for less, and the third would be that we would say, “Well, we’re still prepared to give it a go and we’ll buy the building.”  There may be other possibilities ‑ ‑ ‑

KIRBY J:   But if the question is whether a duty should be imposed upon you, the discrimen may not be commercial or domestic.  But why is it not an answer to say that the duty should not be imposed upon Mr Keane’s client because you are a big investor, you are buying an investment property, you are able to look after yourself and you should look after yourself, and you should not be coming back maybe a decade or two decades or more later to sue somebody who owed contractual obligations and tort obligations to others.  The law says in those situations you are not vulnerable.  You should look after yourself.

MR JACKSON:   I do not know how big we are, your Honour.

KIRBY J:   I do not know either, but this is an investment you have taken of a building.  Prima facie, you are reasonably big.

MR JACKSON:   Your Honour, I am not going beyond the evidence…..you will see it is a proprietary limited company.  How many members it has, one does not know on the material.

KIRBY J:   But it is an investment as distinct from something smaller like a house or something you work and live in, or an apartment in a big block.  It is an investment for monetary purposes.  In that sense you are not - that is what the Court was searching for in Bryan.

MR JACKSON:   Your Honour, what the Court was searching for was really that it was looking at the nature of the property rather than, in a sense, the nature of the purchaser.

GLEESON CJ:   Well, a milk bar in a country town might be owned by a person in quite a small way of business.

MR JACKSON:   Indeed, your Honour.

GLEESON CJ:   But that person might live in a flat at the back.

MR JACKSON:   Yes, and Prime Ministers of some countries are said to have lived the shop, as it were, in earlier lives; people do.  We have referred in paragraph 3 of our submissions in reply to the fact that one is really talking about, in a sense, the nature of the premises rather than whether we are a commercial purchaser.

KIRBY J:   I can see that argument.  I think you have made a good case on that, but that still leaves Justice McHugh’s third category of whether you – the Court was struggling to try to find a formula that, as it were, makes the imposition of a duty appropriate in the circumstances.  It lighted upon a fact, the applicants of domestic dwellings, but in fact that was simply an instance of the kind of vulnerability that is the true reason for imposing the duty.

MR JACKSON:   Your Honour, one is dealing of course with the present case, which is a question whether we have no cause of action.  Now, if it be that the matters to which your Honour has referred are ones which ultimately are material to whether there is or is not a cause of action, that is a matter in relation to which there would need to be, in our submission, a trial, unless one is to adopt an absolute rule that premises which have some commercial or industrial, or perhaps a non‑residential aspect, are premises in relation to which there cannot be the duty.  That is the point I would seek to make, and I will go back to it in a moment, if I may, that that view is one that should not, in our submission, be adopted.

GUMMOW J:   Now, the bright line which you want to dissolve is the bright line at paragraph [40] on page 77, is not it, of the Court of Appeal?

MR JACKSON:   Yes, your Honour.

KIRBY J:   They based their decision on an earlier decision of their own, did not they, the Court of Appeal?

MR JACKSON:   Yes.

KIRBY J:   Is there anything we need to look at that case for because ‑ ‑ ‑

MR JACKSON:   I am going to come to it in a moment, your Honour, really, for one thing.  The principal judgment is that of Chief Justice de Jersey.  Chief Justice de Jersey simply says, relevantly, that it is clear that the Court in Bryan v Maloney was limiting itself to residential dwellings.  I am seeking to show that that was not so.  Now, your Honours ‑ ‑ ‑

CALLINAN J:   Mr Jackson, have you finished with that?  There is something I ‑ ‑ ‑

MR JACKSON:   I am not sure what the “that” was, but I am sure I have finished.

CALLINAN J:   Well, it was….Mr Jackson, we have a Building Act 1975, in particular section 53….. If you look at page 60 of the appeal book, you will see that the council inspection is undertaken upon really conditions, in effect. Disclaimers were made, but paragraph 2 there says that:

The property has been inspected under the following headings . . . Unsafe or dilapidated buildings or structures.  (Section 53) – 

which I take it is a reference to section 53 of the Building Act?

MR JACKSON:   Yes.

CALLINAN J:   That is part of the stated case, because that is an annexed document. I just really want to know what section 53 says, because it may be of relevance to the question of what duty, if any, is owed – if in fact you can get these inspections made and the council undertake them.

MR JACKSON:   Yes.  Can I give your Honour an answer to that.  It seems to reflect the Building Act 1975 – I do not think I have the provision here.

CALLINAN J:   But you see why I ask it, Mr Jackson.

MR JACKSON:   I do, your Honour.

CALLINAN J:   I do not know whether it is irrelevant to this question; it may be relevant.  For example, does the section draw any distinction between commercial ‑ ‑ ‑

KIRBY J:   Mr Keane, ever helpful ‑ ‑ ‑

MR JACKSON:   I know, your Honour. 

CALLINAN J:   You are desperately trying to put that away.

MR JACKSON:   Your Honour, I appreciate that, but I am careful of people bearing gifts.

CALLINAN J:   I did not intend it as a gift.

MR JACKSON:   No, I was not speaking of your Honour.  May I come back to it, your Honour.  What I was seeking to say a little while ago was that what had been said by the Full Court in the Supreme Court of Queensland in the National Mutual Case appears to have been followed by Mr Justice Southwell in Victoria in Opat & Ors v National Mutual Life [1992] 1 VR 283. The relevant part is at page 295, about line 8 on the page. That case was a case involving the development of a 23 storey block of residential flats, as one can see from the early part of his Honour’s reasons at page 284, about line 15.

I would also note, your Honours, that at the bottom of page 293, about line 45, his Honour refers to the unreported decision of Chief Justice Malcolm in C.A.I. Fences Pty Ltd and your Honours will see what is referred to there and at the top of the next page.

KIRBY J:   What is this “special relationship”?  Is that a sort of Donoghue v Stevenson relationship it is equivalent to?

MR JACKSON:   I think so, your Honour, yes.  Now, those cases are ones that are referred to in, as I said before, the joint judgment in Bryan v Maloney in footnote 61.  Your Honours, what they do demonstrate, in our submission, are two things.  The first is the practical difficulty in identifying, indeed defining, what are residential premises, on the one hand.  The second thing is that it is unlikely that in Bryan v Maloney the Court intended, when referring to residential premises, to, in effect, “pull up the drawbridge”.  Rather, it was dealing with the facts before it.  May I just say something more about each of those two things.

The first is, your Honours, that the premises in Bryan v Maloney were, in a sense, what used to be the Australian dream – one house in one allotment.  But, of course, numerous Australians live in blocks of units, duplexes, in rows of joined houses, and many buildings are multiple use, with a shop or shops below and residential premises above, and many premises can be partly industrial and partly commercial.  In our submission, it is very difficult to see a good reason why the decision should apply to part but not the whole. 

That was adverted to by Justice Riley in the Supreme Court of the Northern Territory in the Proprietors Units Plan 95/98 v Jiniess Pty Ltd. It is unreported, your Honours, a decision of the Supreme Court of the Northern Territory, which is [2000] NTSC 89. You will see in paragraph [1] his Honour describes the building:

two and three storey development with an attached single storey car park.  It consists of five residential units at the upper levels which are constructed with an elevated slab over the five ground level commercial units.

He refers in paragraph [6] on page 2 to the defects that became apparent, and then if I could move on to paragraph [48] on page 9, his Honour adverts to the fact that he is dealing with circumstances differing in some respects from Bryan v Maloney, including, your Honours will see subparagraph (3):

the premises themselves were a mix of residential and commercial units.

He said in the next paragraph that it was:

difficult to see why the plaintiffs in these proceedings should be treated differently from the plaintiff in Bryan v Maloney.

He refers, in paragraph [50], to the Queensland case and your Honours will see the discussion going on through to paragraphs [55] and [56].  In particular, at paragraph [55], again he said:

it is difficult to see why that same approach should not apply to the commercial units –

if it applied to the residential units.  That illustrates, your Honours, the circumstances that can quite commonly arise.  Could I refer also to what is said by our learned friends in their written submissions in paragraph 8 ‑ ‑ ‑

KIRBY J:   Did that reasoning lead Justice Riley to hold liability in the engineers?

MR JACKSON:   It did, your Honour.  I think that is paragraph [56].

KIRBY J:   Yes, he does hold that they owed a duty of care, so he did not feel that Bryan restricted his conclusion?

MR JACKSON:   No.

McHUGH J:   Bryan cannot decide the question, can it?  I know I have been on this tack before, but there are four propositions about case law that just seem to me to be elementary.  One is, a judge must decide the issue before the court.  Two, a court can only decide the issue before the court.  Three, the issue should be decided by reference to a general rule.  And four, everything else in the case is dictum or, if it is not relevant to the train of reasoning, it is an obiter dictum.  At 617 in Bryan v Maloney, the Court said what the issue was.  It was:

whether, under the law of negligence, a professional builder who constructs a house for the then owner of the land owes a prima facie duty to a subsequent owner of the house to exercise reasonable care to avoid the kind of foreseeable –

So that is the issue, it is the only issue that could be decided, and the question is, what is the ratio?  The ratio seems to be no more than:  given various circumstances, there was a relationship of proximity and therefore a duty of care.

MR JACKSON:   Your Honour, proximity, in the circumstances of that case, seeming to mean that the “neighbour principle” – if I can put it that way – was satisfied.

McHUGH J:   Yes.

MR JACKSON:   Our learned friend’s written submissions in paragraph 8 say that Bryan v Maloney has been understood, in the intermediate courts of appeal following it, as referring only to dwelling houses.  Your Honours, in our submission, that is not, with respect, quite right.  If one looks at the decision of the Victorian Court of Appeal in Zumpano v Montagnese in [1997] 2VR 525 – I will come back to this case in a moment to go through the list of questions, but may I refer particularly to page 529, about lines 15 to 25. In paragraph (b), his Honour says in the second sentence of that subparagraph:

The joint judgment, at 630, left open the position of buildings other than permanent dwelling houses –

The other members of the court do not discuss that aspect of it.  So it is not right, with respect, to say that this court – when I say this court, I mean the Victorian Court of Appeal – took the view that Bryan v Maloney was limited to dwelling houses. 

KIRBY J:   But Mr Jackson, is Justice McHugh not right?  We sat for many years in an intermediate court and I have some sympathy for judges there who face dicta of this Court.  They are cautious about proceeding beyond, but, as a matter of legal principle, Bryan v Maloney did not decide the question which was before the Court of Appeal of Queensland and I would have thought, with respect, that they should have gone on to decide it.

MR JACKSON:   Indeed, your Honour. 

KIRBY J:   Because it could not decide anything other than a dwelling house.  That was the only issue before the High Court in Bryan v Maloney.

MR JACKSON:   Could I say two things, your Honour.  May I come to the Queensland case in just a moment with the second thing.  The first is this, your Honours, that reference is made also to the New South Wales Court of Appeal’s decision in Woollahra Council v Sved (1996) 40 NSWLR 101, but it appears to be only Justice Clarke who took the view that Bryan v Maloney was so limited. You will see that at page 133, letters B to C, it follows on his discussion commencing at the bottom of the preceding page, but the other members of the court do not say the same thing.

KIRBY J:   I think you have lost me.

MR JACKSON:   I am sorry, your Honour.  Page 133, between B and C, your Honour.  It follows on from the discussion which really commences in the most relevant fashion at the bottom of page 132.  He says one should treat Bryan v Maloney as being limited to residential premises.  The other members of the court just do not say that.  Finally, your Honours, on this point, if I could come to the Queensland decision ‑ ‑ ‑

McHUGH J:   Yes, but his Honour, arguably, is right, when he says that is all Bryan v Maloney decides.

MR JACKSON:   I am sorry, your Honour, it is how one puts it, of course, and I do not mean that in any way offensively.  His Honour is right in saying that that is what it decides, because that is what it was dealing with, and if one emphasises the word “decides”.  If what his Honour was saying ‑ and as our learned friends suggest – is that what the case stands for is not the obvious – that you cannot get it, in other words, from other cases ‑ then, in our submission, that is not right.

Could I come to the case in the Queensland Court of Appeal upon which the present decision is based.  That is Fangrove Pty Ltd v Tod Group Holdings Pty Ltd [1999] 2 Qd R 236 and could we just say this. Your Honours will see at the top of page 237 in paragraph [2] what the damage was. Part of the damage, and the major part of it, was brought about by the fact that the parapet, which had been badly designed, actually collapsed and damaged some of the rest of the building wall. That…..of course, remains as pure economic loss, but what the facts demonstrate, in our submission, is how close to physical damage economic loss may be or how close to damage to property. The case, so far as the present point is concerned, your Honours will see relevantly at page 241, paragraph [14], where the Chief Justice simply said:

Bryan v Maloney represented an extension to the availability in this country of recovery for pure economic loss.

Then he said the matter is then for this Court.  Could we say, your Honours, that his Honour does not refer to the Full Court’s earlier decision in the National Mutual Case, which seemed to accept the possibility that there could be a recovery in a case such as the Fangrove Case and which did not appear to be affected adversely by the decision in Bryan v Maloney. The judgments of the other members of the court appear to adopt what was said by Chief Justice de Jersey relevantly, without dealing with the precise point, although your Honours will see Justice Chesterman refers, at page 245, paragraph [32], to what he describes as the observations of Justice Brooking identifying – “in chilling detail”, it is put – the difficulties which might occur.

GLEESON CJ:   Can I take you back to Bryan v Maloney for a moment, Mr Jackson, please, and could I invite you to look at page 625 in the joint judgment. In the paragraph that I take to be the paragraph that sets out what would, in a later context, be called the “salient features” or the salient factors, do you see about halfway through that paragraph there is the following sentence:

It is a permanent structure to be used indefinitely and, in this country, is likely to represent one of the most significant, and possibly the most significant, investment –

There must be something wrong with the report there –

which the subsequent owner will make during his or her lifetime.

The question I want to ask you is, what is the relevance of that?

MR JACKSON:   Well, the first thing, your Honour, is there are two aspects to it.  One is the question of permanence that I was adverting to before.  What I mean by that is that when the Court is speaking of, as it later does, residential permanency of whatever might be the exact words, one can see that the ‑ ‑ ‑

GLEESON CJ:   I am not talking about permanence.  I am talking about the reference by the Court as one of its reasons to the fact that the building in question, which it later described as a house, was “likely to represent one of the most significant . . . investment which the subsequent owner will make”.  What is the legal relevance of that?

MR JACKSON:   Well, your Honour, what I would say about it is this, that it is recognising in - I do not mean this, again, offensively - in a homely kind of way, if I could put it that way, it is reflecting the fact that what is involved is a considerable amount of money.

GLEESON CJ:   It cannot be there for its prejudicial effect?

MR JACKSON:   No.

GLEESON CJ:   No.  So the legal relevance, if it has a relevance, has to be related back to the last sentence in the first complete paragraph on page 624, is it not?  They are looking for what they regarded as features of “assumption of responsibility” or “reliance”.

MR JACKSON:   Yes.

KIRBY J:   Would we not now say that that is a vulnerability factor?  It is saying that the people who purchase homes are very vulnerable because it is their chief investment in their life and it is therefore extremely important to them.  It is not the sort of thing they want to have a big loss over.  It is a vulnerability, is it not?

MR JACKSON:   Your Honour, that is true.  The particular sentence to which the Chief Justice was referring was one in which one sees that speaking, as it were, epexegetically about the immediately preceding sentence, when it says:

The connecting link of the house is itself a substantial one.

Their Honours explain that by saying, first, that:

It is a permanent structure –

and the second thing is that it is a –

significant, investment -

Now, they do not say it has a particular attraction because it is a nice house or a pleasant place to live.  What they speak about is the fact that if one is speaking about buildings, one is likely to be talking about a significant sum and the significant sum which is capable of diminishing itself very significantly if the building is unsound is a factor which, diminishing in the hands of the owner pro tem if the building is unsound, is a matter which is germane in making up the list of items.

GLEESON CJ:   Particularly when you focus on that sentence, you can understand why some later intermediate Courts of Appeal have treated Bryan v Maloney as a case establishing a principle that was easily applied to houses but not so easily applied to some other kinds of building.

MR JACKSON:   To some houses, your Honour, some houses, in a sense. 

GLEESON CJ:   Well, the duty of care recognised and established in Bryan v Maloney does not operate in relation to inexpensive houses and ceased to operate in relation to expensive houses owned by wealthy people, does it?

MR JACKSON:   No, no, I was not meaning that, your Honour.  What I was meaning was not classes of housing but, really, types of housing.  I meant by that that Bryan v Maloney was dealing with, as I put it earlier, that the simplest case, in a sense, of one house on one allotment.  What I was seeking to say was that if one looks at the decision, it does not really deal with the circumstances of there being, for example, home units in a large block or a smaller – that kind of thing, your Honour, but I was not seeking to speak particularly about how much a particular house might cost.

GLEESON CJ:   Or how much of the owner’s available capital was expended in purchasing the house.

MR JACKSON:   No, your Honour, whether it be done by a personal superannuation fund, by an individual, by a family company in which they had an interest, things of that kind.

McHUGH J:   But it throws up the difficulties of the decision in some respects, does it not, because prima facie they are saying there is a marked distinction between the wealthy barrister who buys a home in Hamilton or the Eastern Suburbs of Sydney who gets this protection and a person who is, in effect, a first home buyer or the multimillionaire buying a $20 million house.

MR JACKSON:   Well, your Honour, that is why, in our submission, to draw the line at residential premises is one that is very difficult to sustain, in our submission.

KIRBY J:   Could you help me with this?  I remember when we looked at pure economic loss, that the common law has developed along lines that if there is injury, physical injury, that is said to remove the inhibitions against the award of pure economic loss because it, as it were, concretises the limits of the loss.  Where is that said, because on one view, you have in this case injury and therefore it is not, in a sense, pure economic loss?  It is an injury to the building that is manifested in economic loss, but that is not an unusual ‑ ‑ ‑

McHUGH J:   I think Lord Oliver says something to that effect in Caparo.

MR JACKSON:   Yes, your Honour.

KIRBY J:   I must not look too much at Caparo or I might go back to earlier error.  We are talking about policy in this area.

MR JACKSON:   Your Honour, I am not sure how many balls I can keep in the air at once in that regard.  But may I say that there is a close relationship between the two types of damage.  Your Honour, when I say the two types I mean, for example, damage to a desk that was in a room and was damaged because something fell in from the roof because the foundations are gone, on the one hand and on the other hand, the cost of fixing up the roof.

May I come in just a moment, to the references one sees to that in Bryan v Maloney itself?  I was just going to say, your Honours, that if one is looking to a case such as the present, what one does see is that there is already an existing liability on a person in the position of the respondents in relation to matters which are very close in concept to the liability that it is said should be imposed. 

Now, your Honours, could I go for a moment to say this, that it is clear, in our submission, that negligent design resulting in personal injury can give rise to a cause of action against the designer.  May I take your Honours for just one moment to Voli 110 CLR 74?

McHUGH J:   But Voli is a personal injury case.

MR JACKSON:   Your Honour, I appreciate that.  Your Honour, what I am trying to say is this, that what you have is Voli is a personal injuries case in which it was held that negligent design – there are two passages, your Honours.  Chief Justice Dixon, page 79 at the bottom of the page in the last four lines, sets out his views of the matter and he agreed with Justice Windeyer, as did Justice Owen.  Justice Windeyer’s observations can be seen - there are four short passages that I give your Honours - page 82, about point 6, your Honours will see he refers to:

The cause of the collapse –

being, to put it shortly, that –

the joists . . . were not . . . strong enough -

At page 83, again, about point 6, he refers to the fact that the architect needed:

to bring his own professional skill and competence to the task -

At page 84 in the passage which commences at about point 5 on the page, your Honours will see that he sets out the general principle there to the bottom of the page and at the top of page 85 describes the nature of the obligation and then, your Honours, deals with the relationship with contract in the paragraph commencing about point 2:

First, neither the terms –

et cetera.  Now, your Honours, if one bears in mind that the same breach by the architect or engineer could give rise to personal injury or to damage to property in or outside the building, or to the building itself so that one has to fix it before it falls over, there is, in our submission, a very close relationship between that damage, on the one hand, and property damage on the other.

McHUGH J:   But are the cases really analogous?  I mean, the case of the personal injury case, the architect could be liable to both sets of plaintiffs at the same time.  But here the engineer’s liability to the first purchaser ends the moment the first purchaser sells the house and you want to erect a new liability.  You get a new person who comes in and a new duty of care is erected unless you are going to say, “Well, there is a whole series of duties of care down to eternity”.

KIRBY J:   As I understand it, your point is if the second purchaser is physically injured, then that person can recover in court in negligence against the engineer, but if the second purchaser suffers economic loss, he cannot and that is not a very rational discrimen.

MR JACKSON:   Yes, your Honour that is what we are saying and it is not just personal injury, of course.  One takes the simple case.  A tile falls from the ceiling and damages some object below, then that can be recovered.

CALLINAN J:   Mr Jackson, but the injured spectator in Voli’s Case cannot do anything to protect himself.  You say in paragraph 30(c) of your submissions that:

the appellant was not in a position to protect itself against the effects of the respondents’ negligence –

But that is not so, is it, because you sought an inspection under section 53 of the Building Act which I think provides – I do not have a copy of it, and I think this is the relevant provision and I will be no doubt corrected later if I am not, it could have been amended – that:

If in the opinion of a local authority formed on reasonable grounds any building . . . be unfit for use or occupation or is, from neglect or other cause, in a structural condition prejudicial to the inhabitants of or to property in the neighbourhood –

Now, you took your chances with the Council and it may be a question whether the Council did the inspection properly or not, but you could have had the property inspected by the Council.  You could have had it inspected by your own engineers.  It is not right to say, is it, that you were in a vulnerable, or particularly vulnerable position?

MR JACKSON:   Well, your Honour, what one was talking about was the situation of the foundations and the subsoil.

CALLINAN J:   Yes.

MR JACKSON:   Now, your Honour will see that section 53, the one to which your Honour was referring ‑ ‑ ‑

CALLINAN J:   Have I got the right time.  I think that was an Act that had amendment in 1991, but the inspection was after it, was it not?

MR JACKSON:   Yes, your Honour, I think so, I am not sure.  But your Honour will see that the purpose of the inspection is referred to at page 60 of the appeal book and what we do is to do what is reasonable, ask the Council to inspect it for the purposes of those sections.

CALLINAN J:   The Council has said that it has made an inspection pursuant to section 53.

MR JACKSON:   Yes.  Now, your Honour, the situation, of course, is that the fact that the council may arrive at a particular view and tell us the view – and it may be wrong – really in a sense does not make us less vulnerable; in a sense it makes it more so.  It certainly does not break any chain of causation that might arise from the ‑ ‑ ‑

CALLINAN J:   But it falsifies your submission that the appellant was not in a position to protect itself, because it was in a position to protect itself by getting a council inspection or by getting some other inspection by its own engineers.  It just is not right ‑ ‑ ‑

MR JACKSON:   Your Honour, it may be that that submission overstates the position.  With respect, the position is that one was dealing with the foundations of the building and what is underneath them.

CALLINAN J:   Why would you not have an action against the council?

MR JACKSON:   Well, your Honour, maybe we do.  One is talking about the foundations and what is underneath them.  In relation to those, we do the things that one would ordinarily treat as reasonable by getting the council to express views on the particular subjects that are the subjects of section 52.  But the fact, your Honour, that one might expect us to get a view of that kind does not mean that if the duty was not properly performed in the first place that there is some intervening event which removes liability.  Rather, it means that the nature of the breach was such that the damage, or the unsoundness of the building, was not immediately able to be seen on the normal types of inspections.

CALLINAN J:   It weakens your argument based on policy grounds, does it not?

MR JACKSON:   In my submission not at all, your Honour.  It rather strengthens it, if anything.  Your Honours, I was going to take the Court –and I will do so very briefly – to the parts of Bryan v Maloney where the members of the Court adverted to the close relationship between the two types of damage.  First of all, page 623 about point 3 on the page, your Honours will see the paragraph commencing:

While the relationship . . . must be distinguished from the relationship between them with respect to mere economic loss, the significance of such a distinction varies according to the particular kind of economic loss which is involved in the relevant category of case.

Your Honours will see then the reference through the remainder of that paragraph to the nature of the distinction and then the distinction being an essentially technical one.  Again, at the bottom of page 625 about point 9:

The only factor which arguably precludes the recognition of a relevant relationship . . . is the kind of damage involved, namely, mere economic loss.

And then at the top of the next page, your Honours, there is a discussion in relation to “ordinary physical injury”.  In the fifth, sixth and seventh lines a reference again to the distinction being technical, and that goes down to about halfway down that page.  At page 628 about point 6 their Honours say:

It is difficult to see why, as a matter of principle, policy or common sense, a negligent builder should be liable for ordinary physical injury caused to any person or to other property by reason of the collapse of a building by reason of the inadequacy of the foundations but be not liable to the owner of the building for the cost of remedial work ‑

et cetera.  Finally, your Honours, page 657 per Justice Toohey, in the second paragraph on the page going through to about halfway down the page.  Your Honours, we would advert to what was said in the present case by the President in the Court of Appeal at page 69 paragraph 4 in the first sentence of that paragraph.

KIRBY J:   In fairness to the current Court of Appeal, they had the decision in the earlier case, that they have observed the principle that they will not reach a different conclusion for themselves unless an earlier decision was clearly wrong.

MR JACKSON:   Yes, your Honour.

KIRBY J:   Therefore they said, “Well, we can’t say it is clearly wrong and therefore we will simply follow our old precedent.  If you want to, you can go elsewhere”, which you did and you got special leave.  So here we all are.

MR JACKSON:   Your Honours, I said earlier that I ‑ ‑ ‑

KIRBY J:   But in terms of principle that is not the way the Australian court system should work, in my respectful opinion.  Courts should resolve the case before them.  They are only bound by the rule of this Court in a matter that was central to the order.  Maybe we have to say that, because we cannot fix up everything.

MR JACKSON:   Well, your Honours, some courts, of course, to be fair to them, endeavour to resolve the issue by sitting five judges on matters.  The only difficulty arises when on occasions some of the judges have indicated views on particular topics in other cases, and one tends to get a 3:2 division on occasions when it might otherwise be better not to.

Your Honours, I was going to go – and this is the last matter with which I wish to deal – to the unanswered questions that were discussed by Justice Brooking in Zumpano v Montagnase [1997] 2 VR 507. This was adverted to by Justice Thomas in this case at page 75 paragraph 34. What his Honour did – and I am referring your Honours to [1997] 2 VR at 528, is that in the passage that goes from that page through to page 536 or 537, his Honour deals with a number of questions that arise. He describes it on page 528:

A large number of questions arise about the scope of Bryan v Maloney ‑

and he then groups them under 12 headings.  Your Honours, what I would endeavour to do is to indicate the answers that we would seek to give at least to the principal question, which I think would probably cover them all, and a couple of cases to some of the more detailed ones.

GUMMOW J:   In a way though this is a work of supererogation, is it not?

MR JACKSON:   Yes.

GUMMOW J:   What the Court was answering in Bryan v Maloney is what has been pointed out earlier this afternoon.

MR JACKSON:   Yes.  Your Honour, it is ‑ ‑ ‑

GUMMOW J:   Of course, they were not going to look at the world from China to Peru and write about it.  They were going to decide the case.

MR JACKSON:   Quite, your Honour.

GUMMOW J:   So this rather long cry of pain is rather beside the point, I think.  The question then is intermediate courts have to decide these questions for themselves.

MR JACKSON:   Yes, your Honour.  The point I would seek to make – and I will endeavour to do so briefly – is that these are questions; they are perfectly capable of answers.  The answers sometimes vary from case to case, but nothing is very new about the types of reasoning that are involved in answering them.  Could I just go through them briefly, your Honours:

1.  What kinds of building fall within the decision?

Your Honours, we would say all buildings.  The detailed questions that his Honour has there set out under question 1 really highlight the inappropriateness of using the nature of the building as the determining criteria.

GUMMOW J:   Yes.  There is a reiteration of this expression “the decision in Bryan v Maloney” in the earlier analysis of what one is talking about.  That is the problem.

MR JACKSON:   Yes, your Honour.  The second question, page 529:

Is the decision in Bryan v Maloney confined to cases where the defendant builder erected the house under a contract ‑

and, your Honours, we would simply say no, it is not.  The third question:

Leaving aside the question whether the decision is confined to subsequent purchases of houses built under contract, does it apply to all purchases of dwellings, regardless of the occupation, intentions and conduct of the purchaser?

Your Honours, we would seek to answer that in two alternative ways.  One is that the attributes of a particular purchaser may perhaps be a salient feature in some cases.  The attributes of a particular purchaser may well be a relevant factor in determining whether there is contributory negligence.  Question 4:

Is the duty owed not only to purchasers but also to mere occupiers, as the decision of Malcolm CJ already cited would suggest?

Your Honours, probably a mere occupier would not ordinarily suffer damage in the Bryan v Maloney sense, that is, economic loss arising from damage to the structure itself.  Now, I include a degree of hesitation in saying that because it may depend, if one took particularly the case of long leases – 99‑year leases and things of that kind, and maybe other leases too – there may be some obligation on the lessee in relation to the fabric of the building which would be affected by it. 

One notes, your Honours, in relation to personal injury, although it is not an exact analogy, that in Voli, of course, the persons who were injured were persons who were not occupiers; they were simply persons in the building.  Question 5, your Honours:

To which “builders” does the decision in Bryan v Maloney apply?

Your Honours, this is really a question of fact, in a sense, in each case.  Your Honours will see the types of question referred to there.  It must depend on the particular case, in our submission.  In question 6:

To what “defects’ does the decision in Bryan v Maloney apply?

Your Honours, one would expect it to apply to defects which are latent.  If a defect was patent at the time of purchase, then ordinarily speaking the reasonable purchaser would have called in a professional.  This might be a salient feature but, as the Queensland Full Court decision indicated, some knowledge of a defect which had started to become patent may not defeat the claim.  Your Honours, page 531 about line 16 there is a subquestion, in a sense:

(d)  Is the decision limited to “major” or “serious” defects ‑

In our submission, there is no such limitation, but in the ordinary course of events one would be talking about things which were likely to involve some significant economic consequences.  There is a subquestion (e) on the same page.  That seems, with respect, an unnecessary matter of detail.  It must be a question of fact in each case.  From there, your Honours, one goes to page 533 question 7:

how one is to determine whether there has been negligence in fact.

Well, I suppose in the same way one determines that if any building falls down or if someone is injured by it.  Your Honours, in the present case no particularly difficult exercise would be involved, no different from the exercise that would be involved if someone suffered personal injuries because of something that happened in the building.

HAYNE J:   If, because of the foundations that were chosen for the building, the building had a design life of about 50 years, whereas had it had other foundations it might have been expected to have a design life of 100 or 150, what do you do then?

MR JACKSON:   Your Honour, one comes back then to identifying what was the task upon which the builder was engaged – I am sorry, the ‑ ‑ ‑

HAYNE J:   This set of interrogatories that Justice Brooking prepared appears to be founded upon an understanding of the principle that lies beneath the particular decision in Bryan.  Do you say that his Honour is wrong in identifying the principle which underpins this set of interrogatories?

MR JACKSON:   I am not exactly sure that his Honour does identify that.  I may be in error in saying that, but his Honour ‑ ‑ ‑

HAYNE J:   It seems to me that his Honour’s analysis proceeds from an understanding of the significance to be attached to what is said in the joint judgment in Bryan v Maloney at page 625, which includes the passage the Chief Justice directed your attention to earlier.

MR JACKSON:   Could I say that his Honour’s interrogatories, if I can call them that, are prefaced by what appears on page 528.  Your Honours will see at page 528, at about line 5, he refers to some and then says one does not know what is in Pandora’s vase.  He then goes on to discuss the “widest view” of the “ultimate effect” of Bryan v Maloney and then attempts being made “to confine the decision”.  It is in relation to that area, the narrowest and the widest area, that he really poses these questions.  So his Honour may be right in the view that he has of the meaning of it, but the questions are directed to a range of possible views.

GLEESON CJ:   Mr Jackson, how did the majority in Bryan v Maloney answer the argument made by Justice Brennan on page 644 in the complete paragraph on that page?  In its application to commercial premises, what is your answer to the argument made by Justice Brennan there?

MR JACKSON:   Your Honour, in relation to that, we have referred in our submissions in reply in paragraph 5 in relation first to the transmissible warranty of quality argument.  We are not saying it is a warranty.  It is simply the ordinary duty to design and supervise with reasonable care.  It is not one of indefinite duration.  We would also say that the limitation period commences in the ordinary way.

GLEESON CJ:   A possible point of view is that Justice Brennan was there saying, in relation to subsidiary owners of buildings generally, that these are issues that ought to be worked out as a matter of contract between subsequent purchasers and their vendors, and that the majority said in Bryan v Maloney, “Well, not in relation to dwelling houses; not because we think that everybody who buys a dwelling house is poor, or because we think that everybody who buys commercial premises is rich, but because, as a class, it is reasonable, in relation to this matter raised by Justice Brennan, to distinguish between the position of subsequent purchasers of dwelling houses and subsequent purchasers of other buildings”.

MR JACKSON:   Your Honour, if that were to have been the approach taken by the majority in the case, then I suppose two things.  It would be surprising not to see that stated as such.  That is the first thing.  The second thing is that it would also be surprising to see the Court, in the cases I have referred to on a number of occasions at footnote (61), treating those cases as ones which were leading it to the conclusion which it arrived at, because one would have to say that the decision of the Queensland Full Court should have been overruled, if that was the test to be applied.  It would have to be overruled.  The two could not be consistent with that notion. 

One would think, too, that the decision of Chief Justice Malcolm would have to be one that was adversely referred to, yet the decisions seem to be ones on which the Court built, rather than endeavoured to set them aside.  So they are really the two things we would say about it, and they are two sides of the same coin, I think.  It just is not consistent with the way in which it was approached.  I am sorry to be going so tediously through what was said by Justice Brooking, but I am getting very close to the end.

KIRBY J:   One might take the view that some of his Honour’s hypotheses are based upon too broad a view of the holding in Bryan, but he does make some good points concerning the instability of the discrimination between domestic and commercial.

MR JACKSON:   Yes, your Honour.  I think we extracted a part in one of our written submissions.

KIRBY J:   No other common law country has drawn that distinction.  If that is what Bryan v Maloney holds, we are alone in that view.

MR JACKSON:   So far as question 8 is concerned, I think I have endeavoured haltingly to deal with the effect of reliance in our earlier submissions.

GUMMOW J:   I notice Justice Brooking mentions the Privy Council decision in Invercargill.  Do we have to look at that?

MR JACKSON:   Your Honour, I do not think so.  May I check that overnight to see there is nothing I wanted to refer your Honours to in that.  Question 9 is concerned with the notion of proximity and then paragraph ‑ ‑ ‑

McHUGH J:   In Invercargill, did not the Privy Council refer to Bryan v Maloney as a “change of tack”?  The expression, I think, does turn up in that case.

MR JACKSON:   Your Honour, I think that is right, but I do not know that it said much more than that, really.  Question 10 on page 534, your Honours will see that dealt with in paragraphs 6 and 7 of our submissions in reply.  Question 11 on page 535:

What is the position if the defect results from negligence on the part of a subcontractor or supplier?

It must depend on the ambit of the obligations, one would think, of the person who is the builder.  There may be a liability directly by the subcontractor, there may be a liability on the part of the person to whom the subcontractor is contracted.  Finally, your Honours, question 12:

Is there legislation in the State or Territory concerned which bears on whether the duty of care should be imposed?

In our submission, this is not determinative.  We have referred to this in our submissions, in paragraph 33, in the first place, and paragraph 4 in our submissions in reply.  Your Honours, those are our submissions.

KIRBY J:   Just before you sit down, your written submissions do refer to the Canadian, English and other authorities, but how do they resolve this in England now?  How do they cut it off?

McHUGH J:   No duty in England, is there?

MR JACKSON:   I think they have just cut it off, your Honour.

KIRBY J:   What is the principle by which they did so?  How do they explain?  Is it by reference to pure economic loss, or is it some other principle?

MR JACKSON:   Pure economic loss, your Honour.

GLEESON CJ:   They have taken up the dissent of Lord Brandon, have they not, which was, in effect, the basis of what Justice Brennan said in Bryan v Maloney.

MR JACKSON:   Yes.

KIRBY J:   And I think they refer to Justice Brennan, do they not, in Murphy, one of the English cases?

McHUGH J:   They do.

MR JACKSON:   That is so.  The English cases have departed from Australia.

KIRBY J:   And the English cases are on their own, are they not?  Because the New Zealanders and the Canadians, following a modified Anns approach, have held that liability can be established.

MR JACKSON:   Your Honour, they do not go as far as Bryan v Maloney, in that sense, because what is treated as being the relevant factor – or the most potentially relevant factor – is whether the defect is liable to cause danger, is something that is dangerous.

KIRBY J:   If that were the test here, would that be of any help to you, or not?

MR JACKSON:   The facts alleged do not take us as far as that, your Honour. 

McHUGH J:   In this area of the law, the Canadians have also edged away from Anns, which they once applied fearlessly.  Under Justice McLachlin, I think, they are much keener on the incremental approach these days.

MR JACKSON:   In our written submissions, in paragraphs 38 and 39 on page 12, your Honours will see there has been a rejection of the notion that mere foreseeability is sufficient.  Your Honours will see that we refer to two decisions in footnote 52.

GLEESON CJ:   In a sense, that rejection of the notion that mere foreseeability is sufficient is an emphasis on the difference between pure economic loss, on the one hand, and injury to personal property, on the other.

MR JACKSON:   It is a reflection, in a sense – could I just say this.  What one has seen in the past has been that sometimes it has been stated that in cases of personal injury or property damage, most usually in relation to personal injury, that foreseeability is sufficient.  That tends to be an abbreviation of the position, because ‑ ‑ ‑

GLEESON CJ:   It is more accurate to say that what is reasonably foreseeable will be much more readily concluded in favour of the plaintiff in a personal injury case than an economic loss case.

MR JACKSON:   Yes, your Honour, that is it.  I have just lost the reference to it for a moment, but I think your Honour Justice McHugh mentioned in one case – the name of which eludes me now – that it was not necessarily the case that in every case of personal injury or property damage where there was reasonable foreseeability, that there was necessarily a duty of care.

McHUGH J:   But the original Canadian position, I think, in cases like Rivtow was:  foreseeability, prima facie duty of care, subject to policy reasons.  I thought, starting with Martel, which is another building case, that there had been a backing away from that, that foreseeability alone does not even make out a prima facie case, I thought – in Canada, as well.

MR JACKSON:   Your Honour, we describe it as fine tuning, I think.  It certainly has moved back a little.

GLEESON CJ:   Thank you, Mr Jackson.  Yes, Mr Keane.

MR KEANE:   Thank you, your Honours.  Your Honours will have seen from our submissions that my first submission is that the actual decision in Bryan v Maloney does not stand in our way.  To take up a point your Honour Justice Kirby was agitating with our learned friend, we would submit, with respect, that the court below, both in this case and in Queensland in Fangrove v Tod Group, it is a little, with respect, unfair to say that the courts did not decide the case  that was before them.  Rather, they held in each case that there was no relevant duty on the footing that upon analysis Bryan v Maloney was not such an admirable and robust specimen that it was advisable to breed from it.

KIRBY J:   But that cannot be correct analysis, can it, because Bryan v Maloney only dealt with a domestic dwelling and therefore it could only deal with that case and therefore anything it held would not, as a matter of legal doctrine, be binding in a case that involved a commercial enterprise.

MR KEANE:   But, your Honour, insofar as one is faced with the choice of extending or not extending the holding, one is informed by the considerations that are identified by the court as being relevant.  If we can take your Honours to what was said in Fangrove v Tod Group [1999] 2 Qd R 236, in particular to the judgments of Justice McPherson and Justice Chesterman, your Honours will see that their Honours focus upon the reasons given in Bryan v Maloney for the holding and hold that insofar as those reasons indicate the basis for the decision, they are not present in the case before it. Firstly, going to the judgment of Justice McPherson at 242 in paragraph [19], where he begins by saying:

The defendant here had no such control.  Its liability, if any, depended on ordinary principles of negligence.

There is a reference then to Voli and he makes the point that the underlying reason for the distinction which is being drawn between cases of personal injury, as was Voli, and cases of the present, is that:

the law values the physical integrity of a person at a level well above the interests of commerce.

And then, in paragraph [20] ‑ ‑ ‑

KIRBY J:   Just pausing there, I have read that before; is that said in the authorities of this Court in the recent discussion of economic loss?

MR KEANE:   It is certainly said by the Chief Justice, your Honour.  In Tame v New South Wales 76 ALJR 1348 at page 1351 in paragraph [6], the Chief Justice said:

Unscientific as may be the distinction between “pure” economic loss, “parasitic” economic loss, and damage to property, the care which the law requires people to show for the person or property of others is not matched by a corresponding requirement to have regard to their financial interests.  The distinction is not based on science or logic; it is pragmatic, and none the worse for that.

In terms of, dare one say it, judicial policy, going back to Fangrove v Tod, your Honours, to paragraph [20], one sees Justice McPherson focusing on the point:

Part of the explanation no doubt also lies in the capacity of those who engage in commerce to protect themselves against the kind of loss that the plaintiff sustained here.

To come back to your Honour Justice Kirby in relation to this point, that is, with respect, the point made in paragraph 120 of the judgment in Perre v Apand by Justice McHugh, explicitly by reference to the capacity of those in commerce and no doubt the expectation that all the rest of us have of those in commerce:

Before acquiring a commercial building of this kind, they can ordinarily be expected to employ expert assistance to ascertain the condition of the premises.

To take up the point your Honour Justice Callinan was agitating with our learned friend.

Statute apart, a vendor of land has at common law ordinarily not been considered as impliedly warranting to the purchaser the physical quality or suitability for any purpose of the land sold.  A landlord of residential premises may for some purposes, such as liability for personal injuries, now be in a different position.  It is another matter to hold an engineering designer liable in negligence for design defects that produce economic loss rather than personal injury, to a person like the plaintiff here, with whom the designer was never in any contractual relationship.  The decision in Bryan v Maloney (1995) 182 CLR 609 suggests that residential buildings may occupy a specially favoured place in Australian jurisprudence; but, as the Chief Justice observes in his reasons in the present appeal, any extension of the present boundaries of the liability marked out by that decision is a matter which is for the High Court rather than this Court to determine.

KIRBY J:   That is where I pause, because I do not think that is entirely correct when an intermediate court is faced with a case which presents an issue that has not, as a matter of legal principle, been decided by this Court.  Do they not have a duty to decide it by analogous reasoning from the decision of this Court dealing with the issue that this Court dealt with?

MR KEANE:   And, with respect, your Honour, that is precisely what their Honours have done.  They have looked at the decision of the court ‑ ‑ ‑

KIRBY J:   …..paragraph [20] there is an attention to the issues of principle that that involved.

MR KEANE:   And again, with respect, in the judgment of Justice Chesterman at page 245 in paragraph [35] beginning at line 45:

The purchaser of a substantial commercial building acquired for profit does not fit the description of a purchaser of a modest suburban house who “is likely to be unskilled in building matters and inexperienced in the niceties of real property investment”.

That is to add a further point to the point that your Honour the Chief Justice made in relation to the passage, which does appear to be part of the ratio, at 625.  In addition, we would draw your Honours’ attention as well to what is said at 627 in the long paragraph that begins at about point 4:

Ultimately, it seems to us that, from the point of view of proximity, the similarities between the relationship between builder and first owner and the relationship between builder and subsequent owner as regards the particular kind of economic loss are of much greater significance than the differences to which attention has been drawn, namely, the absence of direct contact or dealing and the possibility extended time in which liability might arise.

The particular kind of economic loss, the major investment made by a person in their lifetime and then, reading down, your Honours, the balance of that page, over to 628, where their Honours make the point, by reference to:

policy considerations were identified in the judgment of the Supreme Court of New Hampshire . . . include the consideration that, by virtue of superior knowledge, skill and experience in the construction of houses, it is likely that a builder will be better qualified and positioned to avoid, evaluate and guard against the financial risk posed by latent defect in the structure of a house.  In all the circumstances, the relationship between builder and subsequent owner as regards the particular kind of economic loss should be accepted as possessing a comparable degree of proximity to that possessed by the relationship between builder and first owner and as giving rise to a duty to take reasonable care on the part of the builder to avoid such loss.

KIRBY J:   But the problem with all this is that in those words “it is likely that” because each case will vary in its facts and you will get some cases where an investment building is, as a matter of fact, presenting the investor with a great deal of vulnerability and dependence and where a house on the river here or the harbour in Sydney may not.  It is not a very stable discrimen.

MR KEANE:   Indeed, your Honour, it is not a stable one, it is not a tidy one.  It is rational, one can understand it.  It may be that that distinction has to be worked out in particular cases, but the problem does not arise here because, whether one looks at this property from the point of view of its use or its inherent usefulness or the party who bought it, there is no doubt that it is commercial property, there is no doubt that it is not the sort of case in which a person is making the most significant investment or that it can be inferred or imputed as the most significant investment of their life; they are not meeting the basic human need for shelter.

It is a case where capital is being placed on the basis that the investor is placing the capital to its best advantage and it can be, we would submit, expected to be astute to ensure that advantage, because it can always go elsewhere if it is unhappy with the terms it is able to negotiate.  That difference is the point that is explained in the decision of the House of Lords in D & F Estates.  Your Honours, I note the time.

GLEESON CJ:   Just so that I can give an indication to the next case, how long do you think you will be?

MR KEANE:   Your Honour, I think I will be about another three‑quarters of an hour tomorrow.

GLEESON CJ:   Mr Jackson, in reply?

MR JACKSON:   A quarter of an hour, I suspect, your Honour.

GLEESON CJ:   Conclude at any time convenient to yourself, Mr Keane.

MR KEANE:   Your Honour, if I may just take your Honours to the passage in D & F Estates  where this distinction is made.  It is [1989] 1 AC and the relevant passage is in the speech of Lord Bridge page 193.  If your Honours go to page 193 your Honours will see, just below E, the reference to:

The Act of 1972 was enacted following and substantially implementing the recommendations of the Law Commission report on “Civil Liability of Vendors and Lessors for Defective Premises”.

Could we ask your Honours to note, particularly, the last two lines on that page:

In Part B of the report, dealing with “defects of quality” in the sense defined in the passage quoted, the report records, at paragraph 14:

“We are not aware of any substantial criticism of the present law as it applies to commercial or industrial premises.  In such cases the parties are normally in a position to protect their own interests with the help of their professional advisers.  The appropriate terms for inclusion in the contract in such cases are the subject of negotiation.  Considerable disquiet has, however, been expressed in recent years as to the operation of the law in relation to the purchase of dwellings.”

McHUGH J:   Mr Keane, that passage throws up a difficulty in this case about the way this case has been conducted in the striking out of the pleadings.  Suppose there was evidence available which says that it is not the practice in Queensland in commercial premises for getting warranties, that any attempt to get them in the past has always been rejected by vendors’ solicitors, or it may be the converse, that it is a common practice.  Such matters may well be relevant to determining whether a duty exists, which makes this form of process or procedure a rather unsuitable vehicle for determining these important questions.

MR KEANE:   Your Honour, there are a number of answers.  The first is that unreasonable practices are unreasonable nonetheless; the second is that to the extent that there is a want of evidence about it in this case, to the extent that there is a want of fact about it, that is a function of the statement of claim in relation to which the paucity of facts upon which the plaintiff can focus and fix is quite severe.

HAYNE J:   But it also reflects on the utility of answering the question because, if the question is answered, what then is the trial judge or the judge having carriage of the matter to do:  give leave to replead or no?  The utility of the answer is far from self-evident to me, Mr Keane.

MR KEANE:   Your Honour, the case went on a case stated.

HAYNE J:   I understand that, by consent of the parties.

MR KEANE:   Yes, and the question being:  on the agreed facts on the matters pleaded in the statement of claim, is there a cause of action?  The answer is no.  On those facts pleaded, just as in KPMG v Esanda, the absence of facts apt to give rise to a duty, in our respectful submission, decisive and KPMG v Esanda was a strike-out.

The final thing I wanted to say to Justice McHugh in answer to his Honour’s question, and we say this with great respect, is that I mentioned earlier that unreasonable practices are unreasonable nonetheless and your Honour can, with respect, be confident that if such a practice existed, it would no doubt have been pleaded by our learned friends, but happily in Queensland we do not have that sort of pleading.

HAYNE J:   It is a pleading where duty is swept aside in about four words.  I have no confidence in that, Mr Keane, I am sorry.

MR KEANE:   Your Honour, in relation to that one sees the basis on which the duty is said to exist.  As we say, it is a very slim reed, but that simply means the case is resolved in a particular way, not that the case cannot be resolved.

GLEESON CJ:   Does that mean we should deal with the case on the basis that the plaintiff has put its best foot forward?

MR KEANE:   That, your Honour, is the basis upon which we have been dealing with it since the case was stated.

GLEESON CJ:   We will adjourn until 10.15 tomorrow.

AT 4.22 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 24 JUNE 2003