Wynn v NSW Insurance Ministerial Corporation

[1995] HCATrans 85

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S135 of 1994

B e t w e e n -

LEONIE MYREE WYNN

Applicant

and

NSW INSURANCE MINISTERIAL CORPORATION

Respondent

Application for special leave to appeal

MASON CJ
DEANE J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 18 APRIL 1995, AT 12.16 PM

Copyright in the High Court of Australia

MR P.C.B. SEMMLER, QC:   May it please the Court, I appear with my learned friend, MR P.T. TAYLOR, for the applicant.   (instructed by M.J. Ward & Co)

MR D.F. JACKSON, QC:   May it please the Court, I appear with my learned friend, MR H.G. SHORE for the respondent.   (instructed by G.M. Meadows)

MASON CJ:   Yes, Mr Jackson.  This is a case in which it may be convenient if we hear what you have to say in the first instance, Mr Jackson.

MR JACKSON:   Your Honours, as we have put in our written submissions, we submit the case does not, in reality, give rise to issues of the magnitude that are contended for by the respondent and what we would submit is that, on the principal issue, as it were, it was no more than a case where the applicant’s award was based on a frenetic lifestyle which could not, in reality, be achieved without other offsetting costs and that the judgment of the Court of Appeal took those into account.

McHUGH J:   Well, supposing the applicant had been a male, could you imagine a judge making a finding like this?

MR JACKSON:   Well, yes, your Honour.

McHUGH J:   To reduce his earnings on the basis that he might have to participate in child minding costs?

MR JACKSON:   Well, your Honour, one could imagine many circumstances where a person was appointed to a job, where they make a great deal more money, but to do it they had to leave their family in another place and encounter a cost there; all sorts of circumstances, your Honour.  And that would be taken into account in any case of assessment, whether it was by a man or woman who was the plaintiff.  And, your Honour, what one simply has is a situation where, in making an assessment on the basis that there is to be an award which takes into account earning in circumstances where a great deal of effort and time and so on is involved, there are, inevitably, other costs which are offsetting.  You cannot have one without the other.

And, your Honours, that is, essentially, what we would say.  It was a case turning very much on particular facts and not a case meriting special leave.  And certainly not a case ‑ ‑ ‑

DEANE J:   It seems to assume retarded children too, does it, Mr Jackson?

MR JACKSON:   No, your Honour, no, not at all.

DEANE J:   Well the child minding seems to go on for a long time.

MR JACKSON:   No, your Honour.  Your Honour will see ‑ ‑ ‑

DEANE J:   Well, in that case, I have missed something.

McHUGH J:   Well, I thought the allowance seemed to have gone on the basis that you had to have a deduction for 23.75 years.

MR JACKSON:   No, your Honour.  Your Honours will see in paragraph 4 of our summary of argument, we deal with that aspect.  That is on page 2 and, your Honour, I do not want to say any more in addition to what is set out there.  But that is essentially what we would say in relation to that point.  And that is why, your Honours, what we seek to say is that, in order to obtain and maintain the very relatively high income levels, there were offsetting costs which the Court of Appeal took into account and the primary judge had not. 

Your Honours, there is one other thing I want to say about ‑ ‑ ‑

DEANE J:   But, the substantial domestic help goes well beyond the period of ordinarily dependent children.

MR JACKSON:   Oh, yes.  Your Honours will see that two references were given at page 47 and page 49 and, your Honour, if it were simply a case of saying it went on for 23.75 years,.....what your Honour put to me earlier about the children being retarded would be right.  But, that is not quite the case, with respect.

McHUGH J:   But, there is a total deduction for vicissitudes of 28 per cent in this case.  I cannot ever remember seeing a case that got anywhere near that figure.

MR JACKSON:   Well, your Honour, a very common figure in courts in New South Wales is 15 per cent but, your Honour, equally one sees 15, 20, 25 and 10 and then your Honour has seen the way in which it works out.  But, in any event, your Honour, if I could just say in relation to that, the case is really, in our submission, what we have said in paragraphs 11 and 12 at page 4, not one involving any question of general principle but simply one where the primary judge was thought to be in error in relation to inferences that might be drawn and then the Court of Appeal differed on the

proper weight to be given to them at the end of the day.  And that is all it is, your Honour.

Now, your Honour, unless one has set in stone what the appropriate award for contingencies is, then it is a matter on which both the primary judge and the Court of Appeal are entitled to form views based on the same evidence, re-hearing it in a sense, if I can use an expression we heard a little while ago, your Honours, and a matter for the Court of Appeal.  Your Honours, could I refer also to paragraph 12 of those submissions and your Honours will see the last two lines on page 4 and the top of page 5.

Your Honours, could I just say one further thing and it is this:  in relation to both those issues, contingencies and the one mentioned earlier, the case is not, in our submission, one that is really very suitable for the Court to grant special leave in.  There is not any real discussion of the issues of principle in the judgments in the Court of Appeal and, your Honours, the issues do not seem to have been debated before that Court in any significant way so far as we have been able to ascertain.

MASON CJ:   The Court need not trouble you, Mr Semmler.  There will be a grant of special leave in this case.

AT 12.23 PM THE MATTER WAS CONCLUDED