Falgat Constructions Pty Ltd v Lightning Ready Mixed Concrete Pty Ltd S185/1994 [1997] HCATrans 375 (14 November 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S185 of 1994

B e t w e e n -

FALGAT CONSTRUCTIONS PTY LIMITED

Applicant

and

LIGHTNING READY MIXED CONCRETE PTY LIMITED

Respondent

Application for special leave to appeal

BRENNAN CJ

TOOHEY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 NOVEMBER 1997, AT 10.19 AM

Copyright in the High Court of Australia

MR A.T. McINNES, QC: If the Court pleases, I appear with my learned friend, MR W.N. MARKS, for the applicant. (instructed by Otto Stichter & Associates)

MR M.R. ALDRIDGE: May it please your Honours, I appear for the respondent. (instructed by P.W. Turk & Associates)

MR McINNES: The first thing I should tell your Honours is that your Honours will see there has been amendments but, unfortunately, no amendment was made to the draft grounds of appeal and in the event that the Court was minded to grant leave, then I would have to seek leave to amend the draft grounds of appeal.

Your Honours, this is an appeal from the Court of Appeal in New South Wales. It is a fairly short point that we take. It involves, of course, the defective concrete in that the concrete that was delivered to a building site had too much water in it.

BRENNAN CJ: No, that is the question.

TOOHEY J: That begs the question, does it not?

MR McINNES: That was what was found.

BRENNAN CJ: No, it was not. It was found the water was added after.

MR McINNES: I beg your pardon, yes, I put that badly; that the defect in the concrete as laid - - -

BRENNAN CJ: As poured.

MR McINNES: - - - had too much water in it and that affected the compaction as well as the strength generally of the concrete. The evidence was left in such a state, as Mr Justice Mahoney pointed out - that part that is referred to in the amended submissions - the water could have been added at any stage including, of course, after delivery to the site. The point we seek to raise is the question of the shifting burden of proof and submit that as explained in Purkess v Crittenden apply equally to contract cases, that being a negligence case. If I might take your Honours to page 32 of the application book.

BRENNAN CJ: What do you say was the shifting onus of proof? I mean, you had to prove that the concrete, as delivered, was in proper condition.

MR McINNES: Your Honour, what we say is that the concrete was defective as laid. If there had been nothing else, a prima facie case would have been made against the respondent for - - -

TOOHEY J: There may not have been. It is not like a product that is delivered which is defective and then, one understands, there is an onus on the defendant to perhaps demonstrate that the defect could have occurred in some other way but what you have here is a situation in which the evidence was not only equally consistent with the water having been added after the concrete was delivered but, if anything, the probabilities were that it was added afterwards. In the end, is it not anything more than saying that the plaintiff failed to discharge the burden of proof?

MR McINNES: Yes. Well, we submit, your Honour, that in normal circumstances if someone ordered concrete, it was laid; it was defective; although it had passed through various stages, without more, there would be a prima facie case; the plaintiff would be entitled to succeed.

Now, in this instance there were other matters raised, of course, as your Honours have referred to as to where it could have been done. Now, we submit that if the defendant or the respondent alleges that water was wrongfully added after they delivered the concrete - and there was no evidence of that - then the burden was upon the respondent to prove that. That is the point that we make in respect of this. The evidentiary burden had shifted to the respondent. There is no evidence and the respondent was required to produce evidence.

BRENNAN CJ: That is not quite the way in which it can be put, is it? The question is whether or not the concrete, as delivered, was defective. You bore the onus of proving that.

MR McINNES: Yes.

BRENNAN CJ: Now, you sought to discharge that onus by showing that the concrete, as laid, was defective.

MR McINNES: Yes.

BRENNAN CJ: Now, the question is whether or not you had sufficiently discharged the onus of proving that the concrete, as delivered, was defective in the light of all the circumstances.

MR McINNES: Your Honour, once we get to the stage, in my submission - I understand what your Honour is saying - that we prove defective concrete, without more, we would be entitled to succeed because it is brought onto the site, it is pumped - - -

BRENNAN CJ: You mean, the concrete as laid was defective without more.

MR McINNES: Yes, if there is nothing else. It is brought onto the site; it is laid; it is defective; the applicant would be entitled to look to the supplier and that would - - -

BRENNAN CJ: Because the inference would be that nothing happened between delivery and laying, ergo, when delivered it was defective.

MR McINNES: Yes.

BRENNAN CJ: Yes. Well now, here the situation is different.

MR McINNES: The defendant raises the possibility that someone wrongfully interfered with the concrete after delivery or during delivery and my submission is that the onus is upon the defendant/respondent. I cannot put it any further than that, your Honour. That is our argument.

BRENNAN CJ: I do not think we need trouble you in those circumstances, Mr Aldridge.

No error appears in the conclusion reached by the Court of Appeal. For that reason, special leave will be refused.

MR ALDRIDGE: I ask for an order for costs.

BRENNAN CJ: You have nothing to say about that, Mr McInness?

MR McINNESS: No, your Honour.

BRENNAN CJ: Special leave will be refused with costs.

AT 10.26 AM THE MATTER WAS CONCLUDED