X v State of South Australia

[2007] HCATrans 689

[2007] HCATrans 689

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A15 of 2007

B e t w e e n -

X

Applicant

and

THE STATE OF SOUTH AUSTRALIA

Respondent

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 16 NOVEMBER 2007, AT 10.45 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MS K.A. CHAMBERS, for the applicant.  (instructed by Moody Rossi & Co)

MR C.J. KOURAKIS, QC, (Solicitor‑General for the State of South Australia):   May it please the Court, I appear with my learned friend, MS A. FUDA, for the respondent.  (instructed by Crown Solicitor South Australia)

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, in a nutshell, we submit that the special leave point arises from a failure to appreciate that in Sullivan v Moody this Court took an approach to the approach taken in England in a most important area of the law of negligence so as to favour an approach which ought not to be left undisturbed by this Court in the Full Court’s decision.

In short, the Bedfordshire [1995] 2 AC 633 decision, also where the moving party is called X as it happens, to which considerable reference is made in the Full Court reasons of Justice Debelle, is a decision which was passed upon not conclusively but in a way which deserves further attention from this Court given the way in which it was referred to in Sullivan v Moody.

Your Honours have seen the way in which in Sullivan v Moody 207 CLR 562, to which reference has been made by all counsel and in all reasons below, at paragraph 59, tab 3 of our bundle, after the evocative introduction in that paragraph, reference has already been made to that reasoning and that earlier reference was to the significance of that reasoning for the judgments below. In paragraph 60 this Court made it clear that the fact that a defendant may be:

subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff.

On the other hand, of course, reliance, as was shown in the reasons of Justice Debelle below in this case on the famous passage in Lord Browne‑Wilkinson in the Bedfordshire Case, rather runs up against that. At a similar level of generality his Lordship said in tab 1 of our friend’s bundle [1995] 2 AC at 736 about letter B:

It is clear both in principle and from the decided cases that the local authority cannot be liable in damages for doing that which Parliament has authorised.

Of course, the very essence of a statutory power or discretion is that it has been authorised –

Therefore if the decisions complained of fall within the ambit of such statutory discretion they cannot be actionable in common law.

There is then a very important reference which brings up, in our submission, a reason why, as a matter of doctrine, this presents as an appropriate case for the grant of special leave because in England this is seen as being an example of the uneasy fit between the private law of negligence and the public law of the judicial review of administrative discretions.

GLEESON CJ:   There is a kind of shadow of Osman in the background, is there not, in England?

MR WALKER:   Yes, and, in our submission, there has been a clash or a conflict presented by the generalisation that starts from noting the grant of a discretional power, which is Lord Browne-Wilkinson’s approach, and on the other hand the reliance upon the obvious fact that many relations in which a duty of care is imposed by the law of negligence, the common law of negligence, are nowadays brought about by the statutory conjunction of actors.

GLEESON CJ:   Mr Walker, is not paragraph 61 also of some relevance here?

MR WALKER:   It is critical.

GLEESON CJ:   I am right in thinking, am I not, that your client was not someone who had, as it were, previously been threatened?

MR WALKER:   No.

GLEESON CJ:   You remember that case of Kable where somebody was taken to issuing threats from prison?

MR WALKER:   But we had something which was directly analogous to the prior complaint or information in Pyrenees v Day.  It was known that this person released on a special kind of license – and the terms of the statute are controlling, pursuant to conditions which explicitly contemplated prohibition, not contemplated, but imposed prohibition on certain conduct – it was known that he had already engaged in conduct at of place where my client might attend.

GLEESON CJ:   Would it be different in principle if the parole board released a burglar and six months later the burglar committed an act of burglary at somebody’s house?   Would that person then have a cause of action in negligence against the parole board?

MR WALKER:   Yes, it would be different in principle and, no, there would be no cause of action.  That cuts to a very important element of the case which, in our submission, was well appreciated in the dissenting reasons, with respect, but not sufficiently in the majority.  There is a world of difference between parole designed to assist in the rehabilitation of a prisoner whose sentence is going to come to an end and who will be released in due course and the very special licence which is in question in this case.

Contrary to the way in which the majority approached it, [X] was not a person whose rehabilitation was the object of the statutory scheme.  He was a person who required a licence to be at liberty, not as respite from a particular way of serving punishment, but because he had been by judicial determination held incapable of controlling his sexual urges in such a way manifestly as to present a position in which Parliament intended that the public, including my client, be protected.

The indeterminacy to which the Chief Justice refers to in paragraph 61 of Sullivan v Moody is, of course, on authority and in principle a most important factor to consider in evaluating whether a duty of care exists, but in this case we base the allegation of a duty on the fact, as in Pyrenees v Day, that there was, before the occasion where the alleged breach, actual knowledge of actual delinquency in breach of conditions which had been imposed by the very statutory power in question to control to the extent possible – I stress, to the extent possible – the risk presented by a person held to have been incapable, or to be incapable, of controlling his sexual urges.

GLEESON CJ:   Was there not also a finding on the issue of negligence?

MR WALKER:   There is a finding at trial in our favour of breach.  There is a finding on appeal as a fallback position two-one against us.  In our submission, the findings on breach are not such as should deter the Court from a grant of special leave.  For the reasons we have tried in our written submissions to touch upon, the ‑ ‑ ‑

GLEESON CJ:   We would not get to the question of principle that you have been addressing us on so far unless you persuaded us to overturn the finding on breach.

MR WALKER:   That is why I have to deal with that now in the manner I am attempting, namely, that the finding on breach is completely informed by the approach taken in relation to duty, namely, that there should not be, as their Honours put it, any second guessing, let alone with what is called the benefit of hindsight, of the decisions made by the Board.  The first answer, of course, is, yes, it is correct and axiomatically so that in a negligence action there cannot be hindsight applied so as to depart from the requirement of reasonableness.  The reasonableness of the conduct in a particular situation is to be judged by understanding the situation as it then confronted the defendant and not as it later appears after a disaster has occurred. 

That much is, of course, correct and we would not challenge that approach in principle.  But the notion of second guessing is, of course, at the very heart of negligence.  That is what judges and juries do when committed to them is the question in the case of most defendants in negligence no element of dishonesty or other wrongdoing emerges, simply whether they have achieved or not a reasonable standard of care, that is second guessing.

When a jury or judge decides that anaesthetist has miscalculated in a particular way, there is the further question, did that fall below a reasonable standard of care or not?  The common law does not jib at the notion that an expert such as an anaesthetist will be second guessed by a common law tribunal nor, with respect, should a judicial tribunal have been deterred by the notion of second guessing, as it is put, the question of whether there was control which could be exercised over the wrongdoer, already known to be a wrongdoer, turns out to have been an even more serious wrongdoer, pursuant to the powers reposed in them.

That is why, in our submission, the key which is the difference between the English approach in Bedfordshire and the Australian approach illustrated in Sullivan comes down to the notion called in this Court in Sullivan in paragraph 60, the need to avoid the imposition of “conflicting claims or obligations”.  In Sullivan v Moody there was a situation in relation to conflicting claims or obligations which with some degree of irony contrasts with the present case. 

In Sullivan v Moody the situation was that in order to recognise the alleged common law duty of care to persons about whom complaints had been made there would be obvious distraction from, indeed contradiction of, the statutory power, with such accompanying as duty as may apply from time to time, to investigate and pass on just such complaints all for the purposes of protecting children about whose treatment complaint might be raised.  That was Sullivan v Moody, and hence the outcome in that case.

In this case, I stress the statutory scheme being administered – your Honours have seen sections 23 and 24 – was a scheme which is plainly for the protection of the public against a person who is and whose status remains critical of being incapable of controlling his sexual urges.

GLEESON CJ:   That is why I wondered whether Barclay Oysters might in one sense be a closer parallel to this case than Sullivan v Moody.

MR WALKER:   In one sense it is.  Barclay, of course, had no analogue of what was present in Pyrenees and what is present in this case, that is, actual preceding knowledge, that is, preceding the occasion on which the breach is alleged to have taken place, of the danger which in due course materialised.  There was a general awareness in relation to the cleanliness of waters in the same way as there is a general awareness manifested in this legislation itself of the dangers presented to the population of persons who have completed their sentences being released, notwithstanding they remain incapable of restraining the sexual urge which apparently brought about the offending in the first place.

So, in our submission, although obviously the law in this country proceeds from Barclay as being one of the relevant polls concerning consideration of a duty of care where there is a statutory scheme for the protection of the public involving broad powers and a wide range of discretions, that is one poll.  Another poll, of course, is that which was precisely considered by this Court in Sullivan v Moody, and one can then extend it to other statutory cases such as Crimmins.

No one has ever doubted that the fact that there was a statutory power to allocate people to particular positions of work in Crimmins did two things.  One, it brought about a relation which with some more factors led to the imposition of a duty of care.  Two, it presented absolutely no disqualifying feature from there being a duty of care simply because there was a range of options available to anybody who was exercising that power or forming judgments in the exercise of that discretion from day to day.

So, in our submission, between those two poles there will always be a necessary inquiry where, for cases such as the present, the prior actual knowledge and the lack of any conflicting claim or obligation is the key.  The conflicting claim or obligation put at its highest in this case must turn on the so-called interest of [X] in being at liberty, but we do not sue for the original decision in the exercise of a discretion to release, rather, we draw strength from that noting, as your Honours have seen, that the conditions in question, the outcome of the discretion authorised by Parliament, imposed prohibitions on the very kind of conduct in relation to the proximity with and dealings with children which the Board came to find out had been engaged in notwithstanding those conditions.

Now, at that point, in our submission, it becomes a case like Pyrenees v Day where the actual risk particular to the position of the case in question and not merely general in Parliament’s contemplation has come about, like the fire or the fire risk in Pyrenees.  It is quite different from the generalised problem of whether the native animals like oysters and people who may farm or eat them which applied in Barclays.

It is for those reasons, in our submission, that the case presents a highly appropriate vehicle for this Court to examine further what is bound to become in the nature of things an ever expanding category of relation, that is, where people may be placed at risk by the decisions of others which are authorised in a discretionary way by statute.

GLEESON CJ:   I suppose equine flu is an example.

MR WALKER:   Precisely, and, obviously, there are more ways than one of erecting and monitoring a quarantine barrier.  In our submission, each case brought forward of such large powers with such obvious vulnerability, such easy causation, all of that is clear in this case, overwhelming foreseeability, the whole of this statutory scheme bespeaks the foreseeability of the kind of injury that occurs in this case.  That is why it exists, precisely because that is foreseeable that somebody in that state of incapacity to control sexual urges will so act that these powers exist.

In our submission, it is a case therefore very similar to that which was considered by Justice McHugh in Barclay 211 CLR 540 at 576 paragraph 82. This is one of those statutes for the protection of the public where one can start with a ready expectation imposing no conflicting claim or obligation that it is intended to be exercised for the protection of the public. There is here no policy reason or resource allocation reason which can be an answer to the question and one of only two cases of this kind of detention as to why there was inadequate response, as held by the trial judge and by Justice Gray in dissent in the Full Court, to the very stark position presented of a manipulative person subject to one of these control regimes breaching conditions which had been imposed precisely because in his very case there had been an anticipated need to restrain him from such contact and, further, in relation to the very breach alleged in this case that there had already been conduct entirely relevant of the risk materialising in the way in which it did.

It is for those reasons, in our submission, that the finding of no duty is wrapped up with the finding of no breach made by two of the four judges that have considered the record in this case.  The no breach can be seen to be a conclusion based upon the fact that there is a discretion in question which ought not to be second guessed by the Court but, as we said earlier,

in a number of different areas common law courts do not shrink from, indeed must in order to administer the law of negligence, second guess, substitute their own judgment in a binding legal way, for those much more skilled than the Court in the particular endeavour, nor is it a constitutional question, namely, the illegitimate placing of the common law court in the place of the statutory decision-maker any more than a common law court becomes a medical practitioner or a conveyancer in a professional negligence case, rather, the matters of difficulty or fraught decision, none of which truly appear on the facts of this case, those are mattes which are familiarly dealt with by the common law in ascertaining whether there has been a failure to attain a reasonable standard of care in the common law’s refusal to equate error of judgment detected after the event with negligence.

In our submission, that was the appropriate way in which the breach decision should have been taken.  It was not thus taken and so the case does present as an appropriate vehicle notwithstanding our lack of success on the question of breach in the Full Court.  Your Honours, there is no conflicting duty in this case because there was never imposed by these statutes any duty to free or to leave free of conditional restraint [X].  It is for those reasons the analogy with Sullivan v Moody favours rather than disfavours my client’s position.

GLEESON CJ:   Thank you, Mr Walker.  Yes, Mr Solicitor.

MR KOURAKIS:   If the Court pleases, the Parole Board’s duty under section 24 in exercising the discretion in subsection (5) was to have regard to the public interest in the rehabilitation of [X] on the one hand and, on the other, the public interest that he not reoffend whilst he remained on licence.  Those matters, those considerations, are conflicting considerations.  To impose a tortious duty on the Board to ensure that it exercises that discretion in a way that safeguards persons who may come into contact with the licensee from harm would be to distort the statutory discretion and the relevant considerations in the exercise of that discretion that the Parliament has there laid out.

Your Honours, in the case of every licensee there will be a reasonably foreseeable risk that he may reoffend.  If the tortious duty of care is then applied, the Parole Board would almost always be required to immediately return the licensee to custody.  That is plainly not the scheme of the Act, in particular sections 23 and 24.

Your Honours, because the question of duty turns on inconsistency, this is not an appropriate case to consider the differences between decisions in England and in this country as to the imposition of a duty where there is a statutory power or function but no conflict.  This case, in our submission, is plainly one of conflict and that conflict was explained and indeed formed the basis of the majority’s decision in the Full Court below; Justice Duggan in paragraphs 18 to 23, and Justice Debelle paragraphs 179 to 180.

Your Honours, other issues militate strongly against the imposition of duty of care.  The indeterminacy of the duty and liability is an important factor.  There is no difference, in my submission, between parolees and licensees.  If there is any difference at all it is only this, that some licensees may present a greater risk of recidivism than some parolees but that proposition would not hold true for all, in my submission.  The important point is that when a prisoner is released on parole or licensee goes into the community and the number of people he or she may have contact with, the circumstances and the place in which that contact may occur are infinite and endless.  The liability imposed accordingly is indeterminate.  Thirdly, the major consideration against the imposition of a duty is that it is a duty to in effect take responsibility for the criminal tendencies of the licensee or parolee.

GLEESON CJ:   Have the English courts looked at this question in the context of parole or release on licence?

MR KOURAKIS:   Not that I am aware of, your Honour.

GLEESON CJ:   You would have the same issue arise, would you not, in respect of people suspected of being potential terrorists?

MR KOURAKIS:   Yes, and control orders, if your Honour pleases.  Your Honours, the Dorset Yacht Co. Ltd Case, the justification there suggested was that there was minimum security because that facilitated, supported, the rehabilitation of the youths who were there detained.  It is a similar conflict.  In this case there is an even stronger statutory basis for it.  Your Honours, can I just say ‑ ‑ ‑

GLEESON CJ:   But that was a case concerning the actual conditions of management or control of Borstal boys, was it not?

MR KOURAKIS:   Yes, and the escape was facilitated because of the low security arrangements which were thought to enhance or facilitate their prospects of rehabilitation.  Your Honours, the Board came into information in July 1990 that the licensee gave computer lessons at a community centre.  At that time X no longer attended at the centre.  The contact that the licensee had with X after July 1990 was not through the centre, could have happened in any number of ways in the indeterminate number of ways in which a licensee or parole prisoner may come to reoffend.

Importantly, your Honours, the information that the Board received in July 1990 from both the probation officer and the manager of the

community centre was that they were aware, that is, the manager of the community centre was aware of the licensee’s past, that a regime of supervision of him whilst he was at the centre had been imposed and both the manager of the centre and the probation officer supported the licensee’s continued release and advocated his continued involvement in the centre as something that would facilitate his rehabilitation.

It was on that basis that the majority in the Full Court held that even if a duty existed, it would not have been breached because the Parole Board was entitled to act on the information that it was provided and that information supported the course of continuing the licence.  Of course, your Honours, for the applicant to succeed, the applicant would have to argue not only that the Board should have done something but that it should have in fact cancelled the licence and returned [X] to gaol.  Mere changes in the conditions would not have in any way led to or caused, contributed to the conduct which happened thereafter.

Your Honours, the reasons of the Full Court Justices Duggan and Debelle as to there being no breach are pages 80 and 81 for Justice Duggan and 104 to 107 for Justice Debelle.  If the Court pleases, they are my submissions.

GLEESON CJ:   Thank you.  Yes, Mr Walker.

MR WALKER:   Your Honours, my learned friend refers to the question of control as if it was attenuated by the fact that [X] was on licence.  The contrary is in fact at the heart of this case, namely, that there was complete control possessed within the power reposed in the Board by Parliament to alleviate that position in the risk management exercise with which the whole of the statutory scheme is concerned.  They had complete control, not incomplete control, not over what he did while he was at liberty but on whether he remained at liberty.

In our submission, the findings of negligence are extremely powerful concerning the shortcomings in the assessment of the ongoing and, indeed, increased risk by reason of the record which is revealed in the facts that your Honours have seen in the written submissions and it is for those reasons that it is wrong in principle to treat a case where somebody’s – that is, a perpetrator’s conduct is necessarily to a degree governed by self-will and not in the presence of the defendant to see the defendant somebody without relevant control.

Here there is complete power to control by utter prevention the depredations of this man while at liberty by depriving him of the liberty, and it has not been suggested that there has ever been a conflicting claim or obligation of a kind that Sullivan v Moody refers to owed by way of a duty

to [X] to keep him free; far from it.  I stress he is not somebody who is being rehabilitated, he is somebody whose ordinary human interest in liberty is recognised by a discretionary possibility of licence on conditions subject to statutory powers to vary those conditions and to revoke the liberty.  It is for those reasons that the control objection is not one which, in our submission, reduces the prospects of success on an appeal.

In relation to what appears to have been a reference to a matter of causation peculiar to this case, namely, the fact that contact with my client continued after my client’s mother had removed him from the centre, for obvious reasons.  In our submission, that too is not an objection to a grant of special leave.  There is nothing peculiar about a risk which is allowed to continue materialising in such a way as to allow something to happen which would not otherwise have happened.  That is the essence of the first positive requirement for any causation.  It is not peculiar to this case.

Obviously, if there had not been the negligence in question for the reasons as found by the trial judge and by Justice Gray, there would not have been the subsequent conduct outside of the centre between [X] and my client of the kind that caused the damage in question.  It was, in short, the negligent assessment of the risk involved in allowing him to remain at large which could easily be shown to have caused my client’s injury, and it is for those reasons, in our submission, that the case factually does not present anything which is highly peculiar but rather presents as a paradigm case for the question of the imposition of the duty of care where there has been reposed by Parliament a power to prevent the very kind of damage which occurred in this case.

GLEESON CJ:   There were two questions to be decided by the Full Court of the Supreme Court of South Australia in this matter.  Question one was whether the Parole Board owed the applicant a duty of care.  Question two was whether, if the answer to question one was “yes”, the Parole Board was in breach of that duty of care.  The Full Court answered question one “no” and said that if question two had arisen it would also have answered question two “no”. 

Underlying question one there are issues of wide general importance in the law of tort, but the answer that was given to question two makes this an inappropriate vehicle for this Court to deal with those questions.

We think that there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is dismissed with costs.

We will adjourn for a short time to reconstitute.

AT 11.18 AM THE MATTER WAS CONCLUDED