Cameron v Qantas Airways S164/1996 [1997] HCATrans 119 (10 April 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S164 of 1996

B e t w e e n -

LEONIE CAMERON

Applicant

and

QANTAS AIRWAYS LIMITED

Respondent

Application for special leave to appeal

BRENNAN CJ

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 10 APRIL 1997, AT 10.09 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC: May it please the Court, I appear with my learned friend, MR N.F. FRANCEY, for the applicant. (instructed by Cashman & Partners)

MR P.G. HELY, QC: If the Court pleases, I appear with MR A. ROBERTSON, SC for the respondent. (instructed by Dunhill Madden Butler)

BRENNAN CJ: Yes, Mr Bennett.

MR BENNETT: May it please the Court. Your Honours, although Qantas has now prohibited smoking on all its international flights, the issues in this case so far as they concern representations about smoking and the systems about smoking still apply in relation to other airlines. Indeed, one would have thought our success in this application and appeal would probably be of commercial benefit to the respondent, rather than detriment, but, of course, that is a matter for it.

GAUDRON J: That is not a question of law.

MR BENNETT: Oh no, your Honour, I do not suggest it is. I am simply dealing with the suggestion that because smoking is now prohibited on all Qantas flights, the issues are academic. Your Honours, may I start with section 52. It is convenient to take Mr Hooper as being typical for this purpose of the five applicants who succeeded, because the majority relied on reasoning which applied to all five, following from his case. It was found as a fact by the trial judge that Qantas accepted a request by Mr Hooper for a non-smoking seat at a time when, in accordance with his Honour's findings, it did not have reasonable grounds for believing that it would have sufficient non-smoking seats on the flight. Not surprisingly, his Honour found that constituted a breach of section 52, misleading and deceptive conduct.

The reasoning on appeal at page 213 and following by the majority was that that conduct was only a representation that a non-smoking seat was available or he would be allocated to one if there was a failure for the intervening period to correct it. His Honour then said that means really what you are complaining of is a representation by silence, a failure to advise of something. You did not plead that, therefore you fail. Now, your Honours, in our respectful submission, that is an argument which, in one sense, could be applied to any section 52 representation because, no doubt, if corrected before it is acted on, there will be, in the normal circumstances, no damage. But the representation found here, and acted on by his Honour and relied on by us, was never a representation of that character. Your Honours, we would submit that is an important question for two reasons: first, the general matter that one could apply it to almost any section 52 representation and say, really, it is just a failure to withdraw it, and secondly and more importantly, in the context of - - -

GAUDRON J: But you have to have a representation that such a seat would be made available.

MR BENNETT: Your Honour, one needs to have misleading and deceptive conduct. The conduct is the acceptance of a request for a non-smoking seat - - -

GAUDRON J: How does that mislead?

MR BENNETT: Because, your Honour, that leads a person to believe that there will at least be a reasonable opportunity, and possibly to believe it as a fact, there will be a non-smoking seat allocated to that person on the plane.

GAUDRON J: Was there a finding of fact to that effect?

MR BENNETT: The finding of fact, your Honour, is at page 89 - it is at a number of places - page 89 line 45:

In its ordinary signification, a request for and acceptance and allocation of, a "non-smoking" seat, means that smoking will be prohibited both (1) in that seat and (2) in the area or zone in which the seat is located.

In fact it went further in relation to Mr Hooper because - - -

BRENNAN CJ: Just pausing there for a moment, the fact that smoking will be prohibited in that seat, what does that mean? Which seat?

MR BENNETT: The seat the person sits in. That, obviously, on its own - one of the arguments which Qantas raised that was rejected was an argument that it only meant your seat would be non-smoking and that the seats around you could all be smoking. That argument was rejected by all judges.

GAUDRON J: But, Mr Bennett, the sentence to which you refer has the word "allocation" in it. Now, your misrepresentation, if any, is prior to the allocation because, at the end of the day, you do not get such an allocation or you do not automatically get such an allocation.

MR BENNETT: It went a little further, your Honour, because at page 84 the agent said to Mr Hooper, "I've got you a non-smoking seat". That is found to mean - and his Honour found that the agent's representations were, in general terms, representations for which Qantas was responsible - but he then says, at page 84 line 30:

when viewed in context, this statement meant no more than, as has been found, that the respondent had accepted Mr. Hooper's request.

But, your Honours, what we say is the acceptance of the request is, if there is at the time, as his Honour found at page 90:

no reasonable grounds for believing that it would have sufficient "non-smoking" seats on the flight -

We submit that is, on its own, misleading or deceptive conduct. One cannot reinterpret that and say, "Oh no, what you are really complaining of is the absence of notification in the intervening period", which was not our complaint.

BRENNAN CJ: Now, you are going to tell us a second reason why this is an important question.

MR BENNETT: Yes. The second reason, your Honour, is that, as I said when I opened, the other airlines still allow smoking on international flights out of Australia and the question is important in relation to bookings on other airlines. If an airline accepts a request for a non-smoking seat, that, we submit, is misleading and deceptive conduct if, in the context, the airline does not have reasonable grounds for believing it will have sufficient non-smoking seats.

BRENNAN CJ: I take it misleading or deceptive conduct is conduct which does have some effect upon the persons to whom the statement is made.

MR BENNETT: Yes, your Honour.

BRENNAN CJ: What is the effect in this case?

MR BENNETT: One also can imply - there is authority that one does not need to ask a "but for" question to imply causation. The effect here is that the passenger continues with that reservation as opposed to making other arrangements. There are three possible other arrangements that could have been made.

BRENNAN CJ: Any findings about that?

MR BENNETT: There were general findings about the background facts, yes, your Honour.

BRENNAN CJ: But any findings as to the effect which any of these representations had on the plaintiffs?

MR BENNETT: No, your Honour, because the question of causation was dealt with only in the context of the failure to warn. It was not necessary for them to be dealt with in the context of - - -

BRENNAN CJ: Is that not at the heart of section 52?

MR BENNETT: It is part of it, your Honour.

BRENNAN CJ: No, not part of it; is it not the very nature of it, the essence of it, that the person to whom the statement is made has in some way been affected by the statement that is made?

MR BENNETT: Your Honour, let me say this. There are three things that could have been done. One is the evidence was that there was a system under which, if one produced a medical certificate early enough, one would get a non-smoking seat - or be almost certain to get a non-smoking seat. That was not something which was widely advertised. The second thing that could have been done is to ascertain whether there were non-smoking flights available. And the third thing, I suppose, is not to fly. The fourth thing is to take pre-medication. There are various things that could be done to alleviate the damage.

Now, here, there were, in my respectful submission, on the findings in relation to Mr Hooper, which the Full Court held applied to the other four, express findings that there was a representation, yet the majority of the Full Court says, "We treat that merely as the negative representation", and then, "Because that was not pleaded, you fail.", whereas, in my respectful submission, that is a mischaracterisation both of the case and of the representation. That is the first issue.

The second issue concerns negligence. There were five particulars of negligence which appear at page 169 and your Honours see on that page the five particulars, (a), (b), (c), (d) and (e). His Honour found for the plaintiffs on (d) and (e) and therefore did not need to consider the others. The one I am concerned with is (c). (a) and (b) were permitting smoking at all on aircraft. I will not deal with those.

GAUDRON J: There was a finding against you on that.

MR BENNETT: Yes, there was. (d) and (e) were failure to warn. In relation to (c), which was having a system which negligently failed to ensure the right result would follow, the trial judge did not need to make a finding on it because he found for us on (d) and (e). Justice Davies, who dissented in the Full Court, found for us on that and discussed over a few pages the issues and considered them and made a finding. The only reference to it in the majority judgment is at page 230 where Justice Lindgren says, in the first sentence:

In my view, negligence as particularised in paras (a), (b) and (c).....was not made out -

There is no reason given at any stage. Now, we submit that where an issue is unnecessary to be considered at the trial, because one succeeds on another issue, and then it is pressed on appeal and the dissenting judge deals with it and indicates a finding for one party on that issue, it is not open to the majority to refuse it without giving reasons. In my respectful submission, that key issue is one as to which we have been denied relief with no reasons being given. In my respectful submission, that is a matter which would attract the intervention of this Court.

BRENNAN CJ: There was no controversy, was there, as to the procedure which was adopted by Qantas?

MR BENNETT: There was evidence about it and - - -

BRENNAN CJ: It was common ground, was it not?

MR BENNETT: Qantas' procedure was common ground, yes, your Honour. Evidence was given by Qantas. The only issue was, is that - and there was a procedure which was explained about how the computer crosses off in a particular order the allocations and buffer zones and - - -

BRENNAN CJ: So the question was, having regard to the agreed facts, was it or was it not in breach of a duty of care?

MR BENNETT: Yes, your Honour.

BRENNAN CJ: One judge said yes, others said no.

MR BENNETT: They said no with reasons, your Honour, and the trial judge did not need to consider it and, in my respectful submission, the appropriate order was either for them to deal with it or to send it back to the trial judge.

GAUDRON J: They dealt with it, but you say without reasons.

MR BENNETT: Yes, your Honour.

GAUDRON J: Maybe it was fairly obvious.

MR BENNETT: Your Honour, we would submit it was not obvious to the dissenting judge.

McHUGH J: But one can sympathise with the judges because, with great respect, the particular is very badly drawn and shows nothing more than a foreseeable risk, at best, or a risk. It is not a particular of negligence at all.

MR BENNETT: It is the policy in relation to the allocation of seating which produces a result.

McHUGH J: Yes, but that is not negligence. Paragraph (d), for example, says there is a failure to warn. Now, that is a head of negligence...that there were alternatives that could have guarded against the risk of injury.

MR BENNETT: And one of those alternatives is having a better system of seat allocation or not having the system which was in place, a system under which - - -

McHUGH J: You have to read that by implication into that particular.

MR BENNETT: It cannot mean anything else, with respect, your Honour. It is not beautifully drawn, but one does not, today, defeat cases on the basis of the precise drawing of particulars.

McHUGH J: No, but it helps to explain why the judge may have thought there was no difference between (c) and (d), and in the end that is what it really comes to, is it not?

MR BENNETT: (d) is failure to warn.

McHUGH J: I know, but the policy or procedure could only be negligent if there was some reasonably practicable alternative open to them, and failing to warn was one of them. (c) and (d), in effect, should be combined really. They are one head of negligence.

MR BENNETT: Another more obvious one might have been to programme the computer so that it was one of the primary considerations, rather than the fourth of five considerations.

McHUGH J: That may be, but there is nothing in that particular (c) that would indicate that is the head of negligence upon which - - -

MR BENNETT: The head of negligence is having a system which produces a particular result.

McHUGH J: That is not negligence. There is no negligence on anybody unless there is a risk of injury which is reasonably foreseeable and reasonably avoidable.

MR BENNETT: The first of those was certainly found. The risk of injury there were findings about and the foreseeability was found. Those matters were found in our favour. The method of avoiding is simply a matter of dialectic, in a sense?

McHUGH J: The learned Justice Beaumont, at page 99, I think it is, found that there was a failure to warn and you said he did not need to deal with it. The truth is that he probably did not have to deal with it because he would have regarded (c) and (d) as really one and the same thing.

MR BENNETT: Your Honour, we would submit he has found the failure to warn and therefore has not needed to deal with the question whether the system itself was negligent in the absence of a failure to warn. Mr Justice Davies dealt with it and found it to be negligent.

GAUDRON J: I would have read it the other way, that given that there might be a warning, the system or the policy was not negligent when the warning was added into it.

MR BENNETT: That is so, your Honour.

GAUDRON J: You cannot have both heads of negligence in that situation because (1), on which a finding was made in your favour, renders otiose any question of negligence.

MR BENNETT: But warning is only one way, your Honour, of curing the system. If one has a - - -

GAUDRON J: But you make the assumption that the warning is given.

MR BENNETT: Yes.

GAUDRON J: Which is the assumption on which the judgment was given in your favour by Justice Beaumont.

MR BENNETT: Yes.

GAUDRON J: Having made that assumption, no question of negligence for other reason arises because you then proceed on the basis that what you have is a system of warning.

MR BENNETT: Precisely, your Honour, but in the Full Court that particular did not succeed and the result is that it then became necessary to consider (c), as Justice Davies did, and in relation to which the majority simply had the one sentence and said it was not made out.

BRENNAN CJ: Mr Bennett, this is an interesting argument on particulars in a negligence case. Have you got any other points?

MR BENNETT: Your Honour, the unconscionable conduct was rejected by all four justices. It is a matter which can be determined on the facts, on the undisputed facts. We submit that there is an important issue in relation to international air travel as to whether having systems of this nature is unconscionable conduct and that is a general proposition which we would submit is of importance. It does involve looking at facts, it does involve an issue in relation to which there were four justices against me, but it is primary facts which are not in dispute.

In relation to costs, may I just say this. We have put this as a ground of appeal. This Court has granted special leave in a case called Oshlack which, I understand, is set down for hearing in August. That case involves the issue - - -

BRENNAN CJ: Certainly no case has been set down for hearing in August - - -

MR BENNETT: No, sorry, it has not been given a date, your Honour. I understand it is indicated as being in the August sittings. I apologise. That is a case in which the issue is whether, in public interest litigation, the courts ought normally to order costs against unsuccessful applicants who bring litigation, primarily in the public interest rather than their own interest. Here, of course, the amounts of damage were trivial, compared to the issues involved. The case was run, basically, on the issues of injunction and declaration and matters of that sort, with damages being regarded as very secondary. There is an issue as to whether it is appropriate, in such cases, for costs to be ordered against unsuccessful plaintiffs.

Now, as I say, this Court has granted leave in relation to that issue in Oshlack. We would submit if your Honours are otherwise against me, I would ask your Honours to stand this application over generally until - either grant leave on the question of costs, the costs issue to be heard with Oshlack, or stand the application over generally on that issue only until Oshlack has been decided so that, if it is decided in favour of the proposition for which we contend, and if that is clearly applicable to this case, the application could be renewed in relation to that.

BRENNAN CJ: But why should we stand it over on the assumption that it may be applicable to this case, when we can see what the nature of this case is?

MR BENNETT: Your Honour, if the Court in Oshlack lays down a principle that as a general matter courts ought not to order costs against unsuccessful applicants in public interest litigation, that would be a highly relevant factor to the decision which has been made in this case and the discretion would have been exercised on a wrong basis and would need to be re-exercised. May it please the Court.

BRENNAN CJ: We need not trouble you, Mr Hely.

Leaving aside the question of costs, there are three issues in the proposed appeal: one, whether the conduct of Qantas was unconscionable for the purposes of s 51AB of the Trade Practices Act 1974 ; two, whether, in relation to any or all group members, Qantas engaged in misleading or deceptive conduct; three, whether its failure to warn was causative of damage to any or all of the group members. There is no reason to doubt the correctness of the decisions of Beaumont J and of the Full Federal Court that the conduct in question was not unconscionable. The other issues are essentially issues of fact which give rise to no question of principle which would properly attract the grant of special leave. Similarly, in the circumstances of this case, the question of costs is not one which warrants the grant of special leave or the taking of any other course. Accordingly the application is dismissed.

MR HELY: If the Court pleases, I ask that the application be dismissed with costs.

BRENNAN CJ: Do you have anything to say to that, Mr Bennett?

MR BENNETT: Yes. In public interest litigation of this sort, where matters are being fought not for the benefit of the applicants but for the community are cases where the Court ought not to make an order for costs.

BRENNAN CJ: The application will be refused with costs.

AT 10.33 AM THE MATTER WAS CONCLUDED