Hillman v Black and ORS A9/1997 [1997] HCATrans 419 (11 December 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A9 of 1997

B e t w e e n -

RICHARD IAN HILLMAN

Applicant

and

TANYA LEONIE BLACK

First Respondent

JOHN GEORGE GOVAN

Second Respondent

QUEEN ELIZABETH HOSPITAL

Third Respondent

ADELAIDE CHILDRENS HOSPITAL

Fourth Respondent

STATE OF SOUTH AUSTRALIA

Fifth Respondent

Application for special leave to appeal

TOOHEY J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 11 DECEMBER 1997, AT 9.32 AM

Copyright in the High Court of Australia

___________________________

MR C.J. KOURAKIS, QC: If the Court pleases, I appear with my learned friend, MR M.S. BLUMBERG, for the applicant. (instructed by Stuart Hamilton Lindsay)

MR M.L. ABBOTT, QC: If the Court pleases, I appear with my learned friend, MS A. SIMPSON, for the first to fourth respondents. (instructed by Fisher Jeffries)

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia: If the Court pleases, I appear with my learned friend, MR A.P. MOSS, for the fifth respondent. (instructed by the Crown Solicitor Office, South Australia)

MR KOURAKIS: If the Court pleases, I have the honour of informing the Court that I have been appointed one of Her Majesty's counsel.

If the Court pleases, I was about to go into the special leave question but I should ask first for this Court to exercise its discretion to grant an extension of time. The judgment of the Full Court in this matter was delivered on 17 December 1996. The application was lodged on 13 February 1997. I understand that the respondents do not wish to be heard on the matter.

TOOHEY J: Is there material as to the delay, as to the reason for the delay?

MR KOURAKIS: No, if your Honour pleases, material has not been filed. The reason for the delay is the combination of the break over Christmas and

the applicant's attempts to make arrangements for the filing fee and engagement of his counsel.

TOOHEY J: Just proceed for the moment, Mr Kourakis, on the footing that we will hear your submissions.

MR KOURAKIS: If the Court pleases. Your Honours, the special leave question is whether doctors and child welfare authorities investigating an allegation of child sexual abuse owe a duty of care to the child's immediate family. The applicant

contends that there is such a duty but that it is owed only with respect to the conduct of their investigations. The limitation is important because it draws a distinction between investigations and judgments about how to best safeguard the interests of the child. The applicant's contention is that there is no conflict of interest between the interests of a child and the child's family in the course of the investigation, even where the possible abuser is a parent.

KIRBY J: Is there any common law country that has taken the step that you suggest of establishing that there is a duty of care? In England, as I understand it, the duty of care has been held to run to the child but not to the family.

MR KOURAKIS: Your Honour, in England it has been held not to run even to the child. It has been held that there is no - - -

KIRBY J: I see. Is there any common law country that has upheld the duty of care that you suggest exists?

MR KOURAKIS: No, your Honour.

KIRBY J: I think Lord Bingham or Lord Justice Bingham as he was, dissented in the case in England, but only in relation to the duty owed to the child.

MR KOURAKIS: Yes, your Honour.

KIRBY J: Not to the family. So you are asking us to take a great big leap.

MR KOURAKIS: If your Honour pleases, it is my submission that the leap between finding an interest to the child and to the family is, in fact, not great precisely because the interests, at least in so far as the investigation is concerned, are coincident and those interests are simply that there be a reasonably competent investigation upon which the child welfare judgments can be based. It is in the interests of all that such judgments, which I accept, involve value judgments and conflicts, are nonetheless based on a reasonably and carefully performed investigation.

TOOHEY J: But you have other hurdles in your way, Mr Kourakis, have you not? You have the absence of any authority that would support the existence of a duty of care in these circumstances. You have findings of the trial judge that even if there were such a duty, the evidence does not sustain a breach of that duty and then you have a finding that in any event the applicant failed to establish any link between a breach of any duty, if one existed, and the damage which he claimed to have suffered.

MR KOURAKIS: Yes. If the Court pleases, on this application, the only question for this Court would be the question of duty of care and to the extent that the issues of breach and causation are difficulties, then the course will be for the matter to be remitted to the Full Court of our Supreme Court to consider those matters. It is simply the applicant's case that there was an arguable case which was and can be put and finally determined by the Full Court on each of those issues.

TOOHEY J: But that is not so, is it? I mean, if the matter proceeded to an appeal, an appeal could be disposed of adversely to the applicant by reference to, for instance, the issue of causation or the findings of the trial judge that there was no breach of any duty.

MR KOURAKIS: If your Honour pleases, that is accepted, but the course that I would urge upon this Court is that given that the Full Court has decided to limit its final determination only to the question of the duty of care, with respect, it would be more appropriate for this Court to remit those other matters back to it rather than deal with them and deny the appeal without - - -

KIRBY J: It is a question of whether this is a good vehicle, you see. If, in fact, you have only one obstacle in your way then you present to us a good vehicle. If you have a case with three obstacles in your way, then we might labour over the first of them and find in your favour, but then you lose on the second or the third or both of the second and the third, and then we have really not advanced the law very far.

GUMMOW J: And, in the end of day, your client has really had its hopes raised and then dashed.

MR KOURAKIS: If the Court pleases, I am left in the difficult position where the Full Court, or at least two members of it - his Honour Justice Prior thought it neither appropriate nor necessary to make any comment on the other issues given the finding of duty of care. But the applicant is left in the position where the Full Court has provided its tentative view, without a full consideration of it and, accordingly, the applicant and myself in the submissions, are rather hamstrung in pointing out the errors that might have been made in coming to those conclusions.

KIRBY J: Were the issues of breach and causation argued in the Full Court?

MR KOURAKIS: Yes, fully, if your Honour pleases.

KIRBY J: Well, therefore, the matter was tendered to the Full Court for decision and judges quite commonly say, "If we are wrong on this, this is the alternative basis on which we would reject the claim." Looking at it from this Court's point of view, it is a question of vehicle and you present us with a case where there is quite an interesting and important first question, but there are these other two questions as well which may not make this a good vehicle.

MR KOURAKIS: If your Honour pleases, it is common for courts to give their conclusion on questions which do not strictly arise but, with respect, the Full Court in this case did not do that. Rather than saying and holding that there was no duty of care and then going on to consider and determine, in any event, what its conclusion would have been on the questions of breach and causation, it rather just made some tentative initial comments without going on to finally determine the matter. If the court had considered the matter through to determination, tentative views, of course, may change or alternatively, that very discussion might have revealed yet another ground upon which an application to this Court might have been agitated.

GUMMOW J: But the trial judge considered everything, did he not?

MR KOURAKIS: Yes.

GUMMOW J: The trial judge spanned across the whole spectrum.

MR KOURAKIS: Yes.

GUMMOW J: Then therefore, it would be open to your opponents to support the Full Court's decision on further grounds, you see.

KIRBY J: Then we would be rummaging around in the notice of contention.

MR KOURAKIS: If your Honours Justices Gummow and Kirby please, the reference to the learned trial judge's decision rather makes the point that I was attempting to make and it is this: for example, as to causation, the learned trial judge dismissed or would have dismissed the applicant's claim on that basis because it had not shown a substantial contribution between the acts and omissions alleged, or a substantial causal link or substantial contribution to the loss, and that very issue, whether the contribution and the legal test for it ought to have been so limited, was a matter that was agitated before the Full Court.

Similarly, on the question of breach, the learned trial judge accepted, with respect to several of the acts and omissions complained of, that there was good sense or there would have been good sense in the investigation being conducted in the way suggested. It is not a great leap, with respect, between accepting that and deciding that something less than the standard of care was met.

TOOHEY J: I think you, perhaps, underplay the trial judge's conclusions and particularly in relation to causation because, if you take, for instance, at page 52 about line 22 or line 20:

it is the link between the conduct of the defendants and the events surrounding the breakdown which has not been established.

MR KOURAKIS: Yes. If your Honour pleases, if your Honour goes to page 51, the previous page, the test which his Honour posed to reach that conclusion is set out and his Honour said:

Mrs Hillman was present in court at an early stage of the trial but neither party called her as a witness. Without any evidence from her I find it difficult to attribute the communication of the opinion as a substantial contribution to her decision to separate or that it substantially increased the risk of harm which is said to have eventuated.

And, your Honours, the submission is made that that is putting the test as a matter of law too highly, and, in any event, in the judgment of his Honour Justice Perry, the arguments against that position were put very forcefully, in our respectful submission, at page 106 and if I can take the Court to that, page 106 at line 12, his Honour Justice Perry said this:

Despite the denial by Ms Dibden of having influenced the decision of the child's mother to take the child away from the matrimonial home, I find it difficult to accept the proposition that the discussion which took place between the child's mother, Ms Dibden and Dr Black immediately following the latter's examination of the child, did not precipitate a decision by the child's mother to break off cohabitation with the appellant and take the child -

His Honour went on to note that - - -

GUMMOW J: That is putting it rather back to front, is it not? It is not a finding that it did precipitate?

MR KOURAKIS: No, your Honour, and, indeed, his Honour Justice Perry on the following page in the end deferred to the final decision of his Honour Justice Duggan but, your Honour Justice Gummow, that passage is simply an appellate judge viewing the evidence which was simply a matter of inference, did not depend on credibility, application of common sense to human affairs.

His Honour recognised what, in my submission, was the very common sense proposition that a mother being told in unqualified terms that there was abuse by her partner acting on it precipitously in the way that his Honour Justice Perry went on to find, that is that the expression of that view at such a preliminary stage was unwise and that it would affect and lead to the mother making precipitous decisions, in my submission, is a matter of common sense upon which the Appeal Court, this Full Court, would have been more than justified in interfering with his Honour Justice Duggan's findings that there was not a causal link.

Your Honours, there is really no further submission I can make about the difficulties your Honours have raised as to the vehicle except to say that, in my submission, by and large, that can be overcome because the Full Court has only decided the question of duty. This Court could consider that discretely and the applicant would simply await then the Full Court's final determination on those other issues.

Your Honours, can I briefly turn to emphasise the matters which, in our submission, still are matters of public importance even on the limited question of duty. It is trite to say that the proper examination and investigation of claims of child sexual abuse are of crucial importance to the families concerned but they are also important, in my submission, to the community's capacity to deal with a difficult issue.

Your Honours, furthermore, this very application raises a matter of importance in the development of the law of negligence itself. Your Honours, it was treated, in our submission, that is the question of the development of the law and application of a duty to novel categories, by the Full Court in the way described by his Honour Justice Prior at page 89. May I just take the Court to that and I ask the Court to consider his Honour Justice Prior's reasons from about line 7 on page 89. His Honour found that:

It must be concluded that no duty of care is owed to the alleged perpetrator of sexual abuse by doctors and officers of the Department because there is, on policy grounds, no relationship of proximity between such a person and them.

He refers to the conflict of interest. He then goes on to say:

To determine the matter in this way -

that is deciding there is no proximity because of policy reasons -

is to give effect to the prevailing approach in the High Court which identifies notions of what is fair and reasonable and policy considerations as going to the question of proximity, rather than as separate matters for consideration as in England.

His Honour, at the third paragraph about line 22, repeated again:

Notions of what is fair and reasonable and policy considerations, considered as a third requirement by the House of Lords in Caparo, are taken into account here to deny a relationship of proximity between the appellant and the respondents.

KIRBY J: But on this general issue, we have two matters that stand for judgment, a matter of Pyrenees and a matter of Romeo where those issues are being explored and will be elaborated so that we are not, as it were, hunting around for another case to look at these questions and your case as presented has these three problems and not just one and if it came up here I can see it. I would turn to the last page of the last volume, notice of contention. The respondents would seek to support the orders below on the basis of the other grounds and we would be in there looking at all the facts and it is not a very congenial prospect.

MR KOURAKIS: If the Court pleases, and I am afraid I am repeating myself on this, but the way to deal with that is to accept and limit the appeal to the only decision decided by the Full Court, that is the duty of care and remit matters back. Of course, if your Honour pleases, I am not aware of the basis upon which the claims or the factual circumstances of the cases to which your Honour referred, but this particular case has all the ingredients and difficulties which would bring out in an acute form the very issues raised by the approach of his Honour Justice Prior and the warning of Chief Justice Brennan in Bryan v Maloney.

KIRBY J: Be assured that the other two cases have lots of nice difficulties.

MR KOURAKIS: I am afraid your Honour is in a unique and exclusive position of having knowledge which I do not have. If the Court pleases, they are my submissions.

TOOHEY J: Thank you, Mr Kourakis. Mr Abbott and Mr Solicitor, we do not wish to hear from you.

In all the circumstances of this case, including the findings of the trial judge on matters relevant to a duty of care, the breach of any such duty and causation, together with the statutory regime applicable, an appeal would have no sufficient prospect of success to warrant a grant of special leave to appeal. Therefore, while the Court will extend the time for the making of the application, the application itself must be refused.

MR ABBOTT: I am instructed to make an application for costs.

TOOHEY J: Mr Kourakis, do you say anything about that?

MR KOURAKIS: No, that cannot be opposed, if your Honour pleases.

TOOHEY J: Is that application made on behalf of any of the other respondents?

MR SELWAY: If it please the Court, the application is also made by the fifth respondent.

TOOHEY J: Yes, Mr Solicitor. In that case, the application will be refused with costs.

AT 9.52 AM THE MATTER WAS CONCLUDED