Superclinics Australia Pty Ltd v CES & Ors S141/1995 [1996] HCATrans 164 (15 April 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S140 of 1995

B e t w e e n -

HAROLD ANTHONY NAFTE

Applicant

and

CES

First Respondent

PA

Second Respondent

SUPERCLINICS AUSTRALIA PTY LIMITED

Third Respondent

RICHARD ROGER DE MONTMARENCY CATTLEY

Fourth Respondent

GARY JOHN BAKER

Fifth Respondent

Office of the Registry

Sydney No S141 of 1995

B e t w e e n -

SUPERCLINICS AUSTRALIA PTY LIMITED

Applicant

and

CES

First Respondent

PA

Second Respondent

HAROLD ANTHONY NAFTE

Third Respondent

RICHARD ROGER DE MONTMARENCY CATTLEY

Fourth Respondent

GARY JOHN BAKER

Fifth Respondent

Applications for special leave to appeal

DAWSON J

TOOHEY J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 15 APRIL 1996, AT 11.03 AM

Copyright in the High Court of Australia

MR D.J. HIGGS, SC: If it please the Court, I appear with my learned friend, MR I.J. McGILLICUDDY, in the first matter, Dr Nafte. (instructed by Tress Cocks & Maddox)

MR S.D. RARES, SC: If your Honours please, I appear for the applicant in the other matter, Superclinics, with my learned friend, MS J.T. GLEESON. (instructed by Minter Ellison)

MR C.R. CALLAWAY, QC: If your Honour please, I appear with MS H.G. MURRELL, SC and MR B.J. SHIELDS for the respondent in both cases. (instructed by McCourt Charlton)

DAWSON J: I have a certificate from the Deputy Registrar certifying that Gary John Baker, the fifth respondent in this matter, submits to any ruling of the Court save as to costs and that, I think, leaves the fourth respondent in each matter, Richard Roger De Montmarency Cattley. Would you call Richard Roger De Montmarency Cattley.

(Richard Roger De Montmarency Cattley was called but did not appear)

DAWSON J: Yes, Mr Higgs.

MR HIGGS: Your Honour, in these proceedings the mother of an unwanted but healthy child claims damages both in relation to the birth of the child and the child's upkeep. The father claims damages for the upkeep of the child.

GUMMOW J: That was how it was before Mr Justice Newman. You are seeking special leave from the decision of the Court of Appeal ordering a new trial on all issues.

MR HIGGS: Yes, your Honour, and what occurred is this: we challenge the decision of the Court of Appeal on two bases. We say, firstly, that for reasons of public policy and in the circumstances of this case there should be no possibility, given the findings made by the trial judge and the judges of the Court of Appeal, for damages and, secondly, that damages should be prohibited in the face of the findings of possible illegality. As to the first finding, your Honour, the first ground - - -

GUMMOW J: Just a possible illegality.

MR HIGGS: No, it was more than a possible illegality, your Honour. In these proceedings in the main judgment of Mr Justice Priestley there was a positive finding, as there was at first instance, to the effect that the proposed termination of pregnancy would have been in contravention of section 83 of the Crimes Act, but although the mother may not have been acting in contravention of section 82 of the Crimes Act, nonetheless, given the findings of his Honour at first instance, which were affirmed by the Judges of the Court of Appeal, the proposed termination of pregnancy would have been in contravention of section 83 of the Crimes Act, that is, the doctor could have had no honest belief on reasonable grounds that the proposed termination would have been necessary to avert serious harm to the health of the mother.

The findings in that regard, your Honours, firstly, if I could take your Honours just quickly to the judgment of Mr Justice Priestley in the Court of Appeal, are to be found on page 85 of the application book. It was accepted that Wald's Case applied and then his Honour, towards the bottom of the page at about line - - -

DAWSON J: Is there any difference between the Wald test or the Levine test, if I may call it that, and the Menhennit test? They are the same, are they not?

MR HIGGS: I think for all intents and purposes they are the same, your Honour.

DAWSON J: Both based on Bourne's Case.

MR HIGGS: That is so, yes. There might be a slight distinction. I think it was pointed out in the judgment of the learned President that whether or not Wald should simply be confined to the formation of a reasonable belief as to the serious jeopardy in which the mother was placed during the course of the pregnancy, his Honour went on to say that it should not be confined so narrowly, it should also take into consideration the possible danger to the mother's health after the birth of the child, but I do not think that anything turns on that for the purposes of this application. At page 85 of the application book, line 40 his Honour held that:

In the present case, on the evidence as it was left before the trial judge, there is certainly an argument open that the abortion could not have been lawful. Although as I have indicated earlier I think the trial judge was applying the wrong test in reasoning that because, objectively, the pregnancy caused no unusual danger to the plaintiff, its termination must necessarily have been an offence, nevertheless, it seems to me that if the different and accepted test required by Wald had been used, the same result could have been reached. This would be because the evidence positively showed that there was nothing in the plaintiff's circumstances at the time when she would have approached a medical practitioner for an abortion had she been advised in due time of her pregnancy, upon which an honest practitioner could reasonably have formed the opinion that to use the words of Wald, there were "reasonable grounds" for believing that if the pregnancy continued to birth "there would result a serious danger to her physical or mental health".

Now, your Honours, that is repeated by his Honour at page 87 about line 40 of the application book:

On the evidence that the court has I do not think the medical practitioner would have been right in expressing or acting upon that opinion -

that is, the opinion to proceed with a termination -

because, as I have already said, I do not see how on the facts available a medical practitioner could have honestly believed on reasonable grounds that the abortion would have been necessary to preserve the plaintiff from serious danger to her life or physical or mental health.

Now, your Honours, in those circumstances, in particular in the circumstance of there being a claim for damages that turns on a claim for the benefit of an act that would have been illegal in the hands of a third party and, in particular, given that we are dealing with the life of an unborn child, there are two bases upon which we would submit with respect the decision of the Court of Appeal should be overturned. Firstly, we say regardless as to the question of illegality - - -

GUMMOW J: What is the decision of the Court of Appeal? It might be useful to identify that. It is the heart of the matter, is it not?

MR HIGGS: I am sorry, your Honour.

GUMMOW J: It is the heart of the matter that brings you here. What is the decision of the Court of Appeal from which you seek special leave?

MR HIGGS: Your Honour, the decision of the Court of Appeal is in effect the judgment of Mr Justice Priestley, that being the consensus judgment.

GUMMOW J: Yes, but what is the trial judge going to do on a new trial as to the law?

MR HIGGS: The trial judge is going to have a new hearing, is going to apply the principles enunciated by Mr Justice Priestley in his judgment as to the assessment of damages - - -

GUMMOW J: Is he? To the exclusion of the other two?

MR HIGGS: Justice Kirby indicated that that is what should occur.

GUMMOW J: The President did not withdraw his reasons in any way.

MR HIGGS: No, but his Honour at pages 79 and 80 - - -

GUMMOW J: As I read it, it was just to produce an order.

MR HIGGS: And to give guidance to the trial judge as to the way in which the damages should be assessed.

TOOHEY J: But the parties will find themselves, will they not, in the same position as they were when the first hearing began?

MR HIGGS: Yes, that is so, that there would need to be a re-hearing, but that it would be a re-hearing upon the basis of the principles enunciated by Mr Justice Priestley, given the direction given by the learned President at pages 79 about lines 17 to 25 of the application book - line 16:

Unless the High Court of Australia were to grant special leave and resolve the difference, a failure by this Court to provide clear guidance would cause embarrassment to the judge of trial. It would render inevitable a future appeal which might, in any case, occur. To the full extent possible, this Court should seek to avoid such a burden on the judge and the parties.

TOOHEY J: But if special leave were granted in this matter, it would not have to be on the footing that the Court was being asked to answer hypothetical questions.

MR HIGGS: No, your Honour. At the moment, given the trial that has taken place thus far, all of the facts were canvassed and if we be correct in our contention to the effect that on the facts before the learned trial judge his decision was right by taking the case at its highest as against the doctors who were being sued, that by reason of considerations of public policy and illegality, if we be right, then the decision of the trial judge should be upheld and we should be entitled to a verdict. We have already been through the trial. It was a final determination. Unfortunately the trial judge simply determined the issues by reference to public policy and illegality.

If he be right in that regard, we should not have to, we would submit with respect, go back and have the matter retried. If we be wrong, there would need to be a retrial, but there is going to be a retrial anyway, given the decision of the Court of Appeal. If, in fact, there is a retrial in this situation, that we have to have the matter retried, even though on the hearing of the matter which canvassed all issues and was a final determination, we, if our contention be correct, should be entitled to hold the verdict and what would happen would be a final resolution of the matter. So nothing worse occurs by a grant of special leave. Something does occur if we are not granted special leave. We lose the benefit of a verdict which on any view, we would submit with respect, involves questions of public importance and in relation to us, if we be right, would finally determine the matter.

If we be wrong, the parents are put in no worse position than they are now. Indeed, they are in a better position because these questions of principle with respect to public policy and illegality will be finally determined. If there be a retrial we will eventually come back - and I do not say this in terrorem, but eventually we will be back here for the very same reasons seeking special leave, but the prejudice to us - and I appreciate this of itself is not final in determining whether or not special leave should be granted - but we are deprived of a verdict to which we are entitled, if the trial judge be right and the Court of Appeal, in three separate judgments that were given for three separate reasons, be wrong.

In relation to a determination as to whether or not considerations of public policy and illegality would bar relief, that always will call into question hypothetical events for the reason that, of course, in this particular case, on any view of the facts, no illegal act ever actually occurred. We simply say that the parents should be deprived of relief because that which they proposed to do was either against public policy, which does not necessarily take into consideration any question of illegality.

Our case on the public policy point is it does not matter whether the proposed termination was illegal or not as a matter of public policy for two reasons, the sanctity of human life and the impossibility of a court to delve into the realms of assessing damage, that is, the impact of a new human life upon parents and the consequence of parenthood; but whether or not the proposed termination was legal or illegal is simply an historical matter and it may have obliquely an impact or a relevance in determining whether or not the doctors were negligent in having failed to advise the mother that she was pregnant, but it does not have any impact as to whether or not damage has occurred once the child is born. But once the child is born it is a completely different situation, that the laws defining whether or not an abortion is legal or illegal of course are made in circumstances where no one can know for sure as to whether or not there will be an impact of a serious nature upon the life of the mother if the birth were to proceed. Once the birth has occurred that can be determined with certainty.

At the moment, if the Court of Appeal judgment is allowed to stand, there can be a claim for damages by a mother for the birth of an unwanted but healthy child even if the actual birth did not result in her suffering serious injury to her physical or mental well-being. Now, I appreciate that prior to the birth it may well be that there are situations where it is quite legitimate for a medical practitioner to advise that a mother should and can undergo a termination of pregnancy because, doing the best that doctors can by looking at future events, they can say, "Doing the best that we can with the knowledge available to us your life is in serious jeopardy and, therefore, by reference to Wald's test, a termination of pregnancy is one that we would advise."

Take for example this situation: even though there might be a 99 per cent chance of serious damage to the health of the mother if the birth were to proceed, there is always the possibility that that overwhelming chance might not occur. In that situation, by reference to notions of public policy, should the mother still be able to claim damages? To suggest that sections 82 and/or 83 give a right to the mother to claim damages by putting her in the position that she would have been in had the legal termination of pregnancy proceeded is to misconstrue the policy underlying that particular part of the Crimes Act. The policy behind the Crimes Act is to protect the health of the mother and it is to weigh up the well-being of the mother as against the sanctity of the life of the unborn child.

It is a completely different question as to whether or not those sections would give her a right in the event of there being no impact of a serious nature upon her health, either mental or physical, to claim that she would be entitled to damages in the event of no damages having occurred. It occurs day in, day out that people might act negligently in the sense that there is a breach of the duty that they owe to a parent or to a patient but no damages flow. Our main contention is that the life of a healthy child can never amount to damages for public policy reasons. Firstly, because both sections 82 and 83, the main policy underlying them is referrable to the sanctity of human life, both that of the mother and the child, and the doctrine that the unborn child is owed a duty of care is based upon the same notion.

We do not necessarily suggest that in this case if there were serious danger that did eventuate to the health of the mother that she would be barred from damages in relation to that particular injury, but in this case where the only claim for damages is for the birth of the child and the consequential upkeep, there being no allegation of serious impairment to her health or otherwise, that - - -

DAWSON J: There is no claim for damages for psychiatric illness?

MR HIGGS: No. The damage was having to bear the child, give birth to the child and then to maintain the child and we would submit with respect that for that reason public policy would argue against this head of damage. We also say, with respect, that it is impossible for a court to assess this type of damage, the damage that flows to a human being because of the birth of an unwanted child. Who is to say whether or not a child in the life of a person and parenthood makes life better or worse? It is something that is very much akin, we would suggest, to those cases that deprive children born with the grossest of deformities in circumstances where their birth should have been terminated, but deprives those children of claiming damages for wrongful life as opposed to the injury that they have to bear, that in the event of the children being prevented for public policy reasons from claiming damages for them being allowed to be born as opposed to physical injury that might have been inflicted upon them in utero.

If they cannot claim damages for a wrongful life, we would submit with respect that a fortiori a parent should not be able to claim damages for the consequence of parenthood that is inflicted upon them, picking up the language as best as we can of the plaintiff in these proceedings, that they should not be able to claim that type of damage, that in law it is not damage.

DAWSON J: I see the red light has gone on, Mr Higgs. We have your written submissions.

MR HIGGS: Thank you, your Honour.

DAWSON J: Mr Rares.

MR RARES: Your Honours, we adopt what my learned friend has put. Your Honours, at the crux of the case is what Justice Priestley says in his Honour's judgment. If your Honours go to page 86 at line 45 his Honour says that the distinction between what the plaintiff was asking for and what the concurrent findings of fact of the trial judge who saw and heard the medical and lay witnesses and Justices Priestley and Meagher came to was the difference between abortion on demand and abortion in accordance with the law. So the question became for Justice Priestley whether the plaintiff lost the opportunity of having an illegal abortion, that is, an abortion, if performed by the doctor, which he would have committed a crime in performing, and what Justice Priestley did was define that was a head of damage known to law which was compensible.

GUMMOW J: What worries me, was the case ever framed at trial in the pleadings as a case for the loss of a chance?

MR RARES: Yes. That was the whole way it was framed and that is why it was decided - - -

GUMMOW J: And on no other footing?

MR RARES: That is right, your Honour. Justice Priestley made a finding of fact about that and if your Honour goes to the bottom of page 84 and the top of page 85:

This is that there is no sign in the record before this court that the plaintiff ever put her case at the trial on the basis which, in my view, would have led to her obtaining judgment, even if the consequence of her not having an abortion were left out of account. Her case was at all times put on the basis that if she had been told by one or more of the defendants that she was pregnant at the time when, had there been no negligence, she should have been told, then she would have had an abortion because it then would have been medically safe, in a physical sense, to have one; she never put the case that had she been properly advised in due time that she would then have sought a lawful abortion within the Wald doctrine. Her case was that there were medical practitioners who would have done an abortion in any event, and that she would have had it done.

So that her case was a loss of opportunity and the President came to a similar view as to the facts of the way it was put.

GUMMOW J: We do not have the pleadings, do we?

MR RARES: Your Honours do not.

GUMMOW J: Why not I cannot begin to understand.

MR RARES: But this was an issue in the Court of Appeal and this is the way the plaintiff put her case. She lost the opportunity of having a termination and the defendants answered that by saying had any advice been given to her that she was pregnant when it should have been she could not have got a lawful termination because those who saw her at the time and gave evidence before the trial judge, which evidence he accepted, came to the view there was no serious danger of mental or physical health such as would justify the procedure.

So what Justice Priestley does in his judgment without, your Honours will have noticed, citing one authority to support it, because we submit there is none - and this is the ground-breaking precedence as it were for this view - if you lose the opportunity of somebody else committing a crime from which you will benefit, that is something that sounds in damage known to law and including the whole of the cost of rearing a normal healthy child that is born as a result of consensual activity between the father and the mother at the time when conception occurred. Now, in our submission, such a notion is both contrary to public policy and something which the Court just will not countenance because it gives the plaintiff a cause of action based on the crime of another.

DAWSON J: Did he not rather put it she lost her chance of having a legal abortion because there may have been a doctor who formed the necessary view, not necessarily right but nevertheless formed that view, who would have conducted the operation which would have been legal?

MR RARES: Your Honour, that is not what the evidence supported. The evidence said - and Justice Priestley says it at the bottom of page 87 line 42, and my friend has take the Court to that, but:

On the evidence that the court has I do not think the medical practitioner would have been right in expressing or acting upon that opinion, because, as I have already said, I do not see how on the facts available a medical practitioner could have honestly believed on reasonable grounds that the abortion would have been necessary to preserve the plaintiff from serious danger to her life or physical or mental health.

His Honour goes on - - -

TOOHEY J: That does not seem to have been her case anyhow, as what Justice Priestley says on page 85 line 5 surely reflects the way in which the case was presented.

MR RARES: Yes, that is right. Her case was an abortion, legal or illegal, would have been performed and she called evidence from doctors who, it was clear when one looked at it, fell below the standard in Wald, so that they would have been committing an offence and what attracted Justice Priestley's approbation in his Honour's judgment was to say she lost the chance of a doctor giving her the wrong advice, so she would not have been necessarily a particeps criminis, and that is the chance that he says is recoverable, but the doctor would have been committing a crime because there is no reasonable ground that he could have had for bringing about a termination. He may have had an honest belief, but it is not on reasonable grounds.

The evidence which the trial judge found, which Justice Priestley accepted and Justice Meagher accepted, was there was no basis on which this could be done. The way that the President, as he then was, got around this was to hold some hypothetical criminal trial which his Honour then said it would be so difficult to get a jury and how could you decide this - this is at page 57 his Honour refers to this - but that, in our submission, was completely outside the authorities in this Court, for example, Helton v Allen, Rejfek v McElroy and recently your Honours decided Neat Holdings v Karajan, where the Court has consistently held that in a civil case where the issue is whether or not a crime is committed the onus is the civil onus and you do not go through an exercise of deciding whether a criminal jury, properly instructed, would have been likely to convict the doctor in the circumstances; you simply determine whether or not the facts shown disclose as a necessary ingredient of this plaintiff's cause of action that she would have lost the opportunity of having the doctor commit an offence.

Now, of course, your Honours, the other unsatisfactory part of the majority decision in the Court of Appeal on this point is that the court takes divergent approaches to ascertaining what we would submit is a fundamental new turn in the law and which, your Honours, would have the necessary logical consequence of bringing about a situation which, if Justice Priestley is right that if you lose the opportunity of having the doctor perform what in his capacity as a doctor would have been an unlawful act or illegal act of serious kind, because this is a crime that carries with it I think about penal servitude for 10 years, so it not a trifling offence.

Suppose the plaintiff had contracted with him to carry out a termination. He looked at her and he formed a view and said it was all right and agreed to perform it the next day and then the next day he came back and he said, "I have reconsidered it and I don't think I can go through with it." She would be able to sue him for breach of contract, even though he would have formed the view that it would have been illegal for him to perform it because she lost the opportunity of having this carried out. It must be right because otherwise on the evidence before the court the court, even on Justice Priestley's view, came to the view this would have been a crime.

So that in our submission this really is a matter that goes fundamentally to the proper administration of the law in this community and it is one which would attract the Court granting special leave, not least because you have this divergence of approaches with the President just trying to reverse the trial judge on the facts and said that he really should have found that there was evidently a serious possibility of a danger to her mental health, which was not found by the trial judge who saw and heard the doctors who had looked at her and who did not see that possibility and expressly negatived it and also then his Honour then adopted as a fall-back Justice Priestley's approach.

Now, the other major issue, of course - in a way it is bound up with the crime, but in another way it is quite separate - assuming the termination would have been lawful, as my learned friend Mr Higgs was putting to your Honours, how do you value the birth of a healthy child? Can you recover over $100,000 worth of damages to bring the child up to 18 simply because this child was born healthy when, at one stage, the mother did not want her. Justice Priestley's solution is to say there is a novus actus interveniens or a break in the chain of causation and at the point at which the child is born and can be put up for adoption you can then break the chain of causation and say - - -

GUMMOW J: But is it said that this action is available to either parent or that it is a joint action of the parents?

MR RARES: They both sued as plaintiffs and the father says he wanted to take the child and he wants the child, the mother says she is bringing the child up, but they have sued jointly but very little consideration was given to the father's position. It really has a lot of conceptual difficulties.

GUMMOW J: So you are saying it is not clear on the pleadings whether it is a joint or several right that is alleged to have been invaded tortiously?

MR RARES: Yes. Well, when your Honour says it is not clear on the pleadings, I cannot say that. I have not looked at the pleadings for that purpose, but what is being asserted is that each of them have the right - - -

GUMMOW J: It just seems an odd aspect of this case that has not been thought about. Some have been thought about too much and some too little.

MR RARES: Your Honours were asking Mr Higgs of course why the case could not just conveniently go back, but, in our submission, nobody really does want it just to go back without some authority of guidance because the question as to what damages are recoverable, the plaintiffs agree, is a proper matter for special leave because if the President is right, it is until the end of the eighteenth year or thereabouts, if Justice Priestley is right it is just until the moment shortly after birth and those matters, of course, are in contradistinction to the way that Justice Meagher approached it, which we would submit is the correct way, of saying it was quite wrong to allow somebody to have a cause of action for having your own child born to you and to claim that the whole of the cost of the upbringing of the child, everything that is associated with it, are damage, but not to allow any offset and then how do you measure the offset for the joy that the child brings to the family home, to the richness that it adds to the parents' lives, particularly parents who - - -

GUMMOW J: It may in some circumstances and in other circumstances it may not, I suppose. How can one hypothesise?

MR RARES: That is the point Justice Meagher makes. He says if a mother loves the child and welcomes it into the home she gets little in the way of - - -

GUMMOW J: There may not be a home.

MR RARES: Those are matters that have to be weighed as to whether or not the damages are available. The mother does not have an action against the father for causing her to give birth. She may have recourse under the law of maintenance but public policy has not allowed such an action there. Why should you be able to sue a doctor for producing what may be a blessing, and his Honour Justice Meagher says it is always to be treated in law as a blessing, and one has the international convention on the rights of a child or the like to international conventions on human rights and the international covenants on political rights which recognise the importance of the role of family and the rights of children. Here you have a court of law saying this is a cause of damage.

I am also reminded that one issue the Court has not addressed in cases like Gala v Preston, which involved some sort of joint illegal activity, is a situation in which you have this, as I said, activity that a plaintiff seeks to benefit from the commission of a crime by a third party. It may well be that she commits a crime under section 82 because she has no basis for saying she wants an abortion, except that she insists upon having it of her own volition without proper cause. In those circumstances, of course, that would again be against public policy to allow recovery and the trial judge was indifferent in making a finding one way or the other. He just said it is either section 82 or section 83 public policy reason that you cannot allow recovery.

We would submit all those issues raise important questions of principle that will need to be resolved, and as the President recognised in his judgment, will need this Court to resolve it, having regard to the disparity of view. The trial judge is going to be left in a terrible position in assessing damage. He is going to have to do it all again after an eight day trial which has caused a lot of expense to all parties, and a two day appeal in the Court of Appeal. Everybody wishes to have this question agitated. It is obviously of public importance. There is no precedent for it in this country apart from single judge decisions in Queensland. In our submission, it is an appropriate case for special leave on all grounds because, as Mr Higgs says, if we are correct on any of the grounds we advance, there is no new trial. If we are wrong at least everybody knows where they are going, and it may avoid the necessity of further appeals and an inevitable application for special leave on a point that clearly is of general public importance for this Court. Those are our submissions unless there is anything I can assist the Court with.

DAWSON J: Thank you, Mr Rares. Mr Callaway.

MR CALLAWAY: The respondents are in a difficult situation and have been, and I think this was made clear by the fact that we have not opposed the application.

If the case goes back for a new trial, in accordance with the invitation or virtual direction of Justice Kirby, damages have to be assessed on two bases from which he predicts it is inevitable that there would be an appeal in the first instance in the Court of Appeal.

GUMMOW J: But if you are successful in your cross-appeal you would still have to go back, but you would say on one basis.

MR CALLAWAY: On one basis only. If your Honours contemplate it, this case has gone for a long time in two different forums already, but if we go down the - or, we have to prove a loss in accordance with Mr Justice Priestley's reasoning, we would have to call evidence as to what the then plaintiff's attitude would have been had she followed Mr Justice Priestley's course and had the child adopted out - the effect it would have had on her life to that extent and so forth. We then have to prove in the, what we would regard as the conventional sense, the way the English and American courts have dealt with these cases, prove the cost of the upbringing of the child again, and perhaps in a different way. We face, in effect, an appeal in any event. We would, obviously, most certainly seek by way of cross-appeal or otherwise this Court's - not guidance, but this Court's judgment on the appropriate measure of damages which then - - -

DAWSON J: You are seeking leave to cross-appeal? You are?

MR CALLAWAY: As I understand the rules, your Honour, we do not have to seek leave, we can do so - - -

DAWSON J: No, you do not have to, that is right. At the time. But it is adverting to the fact that you would be?

MR CALLAWAY: Yes, we would be, your Honour.

GUMMOW J: What would be the cross-appeal? You would be challenging the Court of Appeal in what respect?

MR CALLAWAY: We would be saying that Justice Kirby erred in accepting the proposition that Mr Justice Priestley and Mr Justice Meagher were ad idem so far as the manner of assessment of damages was concerned, because Mr Justice Meagher virtually gave it no consideration at all. He was very much of the view that public policy considerations precluded recovery and he, we would suggest, did not address his mind to it, and in those circumstances, Justice Kirby's view should have prevailed.

In any event, in accordance with general principles we would say that the English and American authorities are along the lines that I have indicated, that is, the cost of upbringing of the child and that when a case goes back for a new - - -

DAWSON J: Then your cross-appeal is really against the direction which - - -

MR CALLAWAY: Yes.

TOOHEY J: It is not truly a cross-appeal, is it?

MR CALLAWAY: That is precisely right.

TOOHEY J: That is your difficulty because you are not seeking to appeal against the order for a retrial.

MR CALLAWAY: We are not doing that - - -

TOOHEY J: What you really seek is some direction from the Court, however you get it, if you do get it, which covers the question of damages if the matter go, if, in the end, there is a decision by this Court which requires the court below to reconsider the matter.

MR CALLAWAY: I suppose I should not say this, but we would feel confident that this Court would deal with that matter, first of all in the light of what Justice Kirby said at the end of his judgment, that it is a matter for further appeal or for the High Court, on the issue of damages only. But, secondly, tied up with the public policy considerations is the question of how an assessment of damages should be made. That, in our submission, would be very closely related. We would feel confident that however we raise it, that this Court would feel moved to deal with it rather than put the parties in this case perhaps back through the appellate processes again. We do have to join issue with my learned friends in a number of ways, but probably in relation to matters that do not go to this particular application which are really matters that will be adumbrated in the appeal if leave is granted.

Just one matter, the difference in Wald, that is Judge Levine's New South Wales decision and the other, Bourne and - - -

DAWSON J: The Menhennitt test.

MR CALLAWAY: - - - it is referred to by Justice Kirby in his judgment, and that is that so far as this State is concerned, social and economic considerations may be taken into account under the Levine judgment.

DAWSON J: But not under the Menhennitt test?

MR CALLAWAY: As far as I can recollect all attention was directed to Wald because we were concerned with the law in this State.

The other matter I would submit to your Honours is, and this appears in our written submissions, I am not complaining about being ambushed all the way through this case but the case was decided against us at first instance on a point raised by the trial judge on about day three - a point that had never been pleaded - and in respect of which we then had to gather evidence or face an adjournment. Mr Justice Priestley's decision on damages, which causes us our present situation, was never argued, never put and never dealt with, either in a court at first instance, or on appeal.

GUMMOW J: When you say the trial judge took that course, what was the response of your side at the time?

MR CALLAWAY: The response of our side was in accordance with the rules it should have been pleaded because illegality was alleged, and the other side got around that one. We then said, "We will do the best we can to present the case, facing that possibility". As I say, I am not complaining. We went ahead along those lines; but that may well explain our approach here before your Honours, where we say, "All right, if there is going to be an appeal to the High Court, we just want to make it clear that we want to be heard on this specific question of damages".

I can point out on page 2 of our written submissions, paragraphs 2.1(1) and (2). Your Honours will see that the only medical evidence that was given was that there would have been a termination of pregnancy, supported - I am not going to use the words legal or illegal - supported by the appropriate medical practitioners had the plaintiffs so have been in a position to require it. That is the evidence of Dr Kok and the evidence of Dr Weisberg, who is a well-known expert in this field, was to that effect. They are factual questions which really I should not be still be troubling your Honours with at this stage, but they were raised by my opponents and I thought I should deal with them. Your Honours, that is our approach. I have nothing to add to our written submissions apart from this, unless there is something that specifically needs to be dealt with.

DAWSON J: Thank you, Mr Callaway. We need not trouble you further, Mr Higgs, Mr Rares. There will be a grant of special leave in this matter.

TOOHEY J: Can I just say, Mr Callaway, you will need, possibly, to give some further thought to the question of how that question of damages should properly be raised before the Court on the return of the appeal.

MR CALLAWAY: Thank you, your Honour.

DAWSON J: Notice of contention might be the answer but I am not necessarily saying it is.

MR CALLAWAY: I am sure that somebody in the team will - I thank your Honour for that reminder. We will definitely cover that area in the case. Thank you, your Honour.

AT 11.49 AM THE MATTER WAS CONCLUDED