|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Australia Transcripts |
Office of the Registry
Sydney No S45 of 1997
B e t w e e n -
MICHAEL REGINALD BASS and EVELYN MAUDE BASS
Applicants
and
PERMANENT TRUSTEE COMPANY LIMITED
First Respondent
FANMAC LIMITED
Second Respondent
STATE OF NEW SOUTH WALES
Third Respondent
PERMANENT CUSTODIANS LIMITED
Fourth Respondent
LIVERPOOL-INGLEBURN CO-OPERATIVE HOUSING SOCIETY
Fifth Respondent
MARKHAM, GEIKIE & RUMORE
Sixth Respondent
CO-OPERATIVE HOUSING SOCIETIES ASSOCIATION OF NEW SOUTH WALES LIMITED
Seventh Respondent
THE ESTATE OF ANTHONY MARKHAM
Eighth Respondent
Office of the Registry
Sydney No S46 of 1997
B e t w e e n -
PAULA CONCA and MARCELO ALBERTO CONCA
Applicants
and
PERMANENT TRUSTEE COMPANY LIMITED
First Respondent
FANMAC LIMITED
Second Respondent
STATE OF NEW SOUTH WALES
Third Respondent
PERMANENT CUSTODIANS LIMITED
Fourth Respondent
MERRYLANDS CO-OPERATIVE HOUSING SOCIETY
Fifth Respondent
LIVERPOOL-INGLEBURN CO-OPERATIVE HOUSING SOCIETY
Sixth Respondent
CO-OPERATIVE HOUSING SOCIETIES ASSOCIATION OF NEW SOUTH WALES LIMITED
Seventh Respondent
KEN LONG
Eighth Respondent
Office of the Registry
Sydney No S47 of 1997
B e t w e e n -
BESSIE MAVIS WOODLANDS and LILIAN MARY BALLARD
Applicants
and
PERMANENT TRUSTEE COMPANY LIMITED
First Respondent
FANMAC LIMITED
Second Respondent
STATE OF NEW SOUTH WALES
Third Respondent
PERMANENT CUSTODIANS LIMITED
Fourth Respondent
FAIRDALE CO-OPERATIVE HOUSING SOCIETY
Fifth Respondent
CO-OPERATIVE HOUSING SOCIETIES ASSOCIATION OF NEW SOUTH WALES LIMITED
Sixth Respondent
Directions Hearing
BRENNAN CJ
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON WEDNESDAY, 18 FEBRUARY 1998, AT 9.19 AM
(Continued from 27/10/97)
Copyright in the High Court of Australia
MR C.J. BIRCH: If it please the Court, I appear for the first and fourth respondents, Permanent Trustee and Permanent Custodians, in all matters. (instructed by Church & Grace.
MR T.F. BATHURST, QC: If the Court pleases, I appear for the second respondent, Fanmac. (instructed by Mallesons Stephen)
MR A.J.L. BANNON, SC: May it please the Court, I appear for the third respondent, the State of New South Wales. (instructed by the Crown Solicitor for New South Wales)
MR T.K. TOBIN, QC: If it please the Court, I appear with MR G.M. McGRATH, for the fifth respondent, that is the Society, and the seventh respondent, the Association in Bass and those same parties in the other matters, your Honour. (instructed by Church & Grace)
HIS HONOUR: And there is no appearance for the sixth or eighth respondents, I gather. What progress has been made?
On this question of whether or not the non-State respondents are agents of the State, the appellants are not prepared to accept a generic claim that they are agents for all purposes. Questions one and two considered by the Full Court were, of course, phrased in the context of what was pleaded by the applicants below in their statements of claim and there appears to be issues surrounding the purpose and scope of the agency.
Now, your Honour, to the extent that if there was to be a lack of agreement on those issues, it would appear to be manageable in the sense that by agreeing to a number of other facts, the bundle of documents ought to be substantially reduced and it may be an issue that can be dealt with by reference to some particular documents.
Alternatively, your Honour, if it was not possible to ultimately agree to a complete statement of facts between all of the parties, it may be possible to agree to some facts and to identify for the Court facts that are alleged by one or other party and which are not agreed or are disputed by another party.
HIS HONOUR: So the issue for determination would be hypothetical?
MS WINTERS: Hypothetical in the sense, your Honour, that the original questions before the Full Court were structured on the basis of the facts pleaded in the statements of claim.
HIS HONOUR: Could I just take you to the questions as drafted to make some inquiries about the state of the facts. Question (1):
Do the prohibitions contained in -
the various sections, apply to - forget the reasons set out in (a), (b) and (c):
conduct engaged in by.....officers and employees of the State in the course of their duties?
Is that a question which is desired to be asked, or is it desired to bring in something further?
MS WINTERS: It is not intended to extend the questions that were dealt with below, your Honour.
HIS HONOUR: If one goes to question (2), I can understand that a question may be asked, if one goes down to (i):
the conduct of its officers and employees.....in contravention of the statutory prohibitions -
engaged in in the course of their duties, but not generally, surely.
MS WINTERS: No, your Honour.
HIS HONOUR: And then (ii):
conduct.....in contravention of the statutory prohibitions -
of the other respondents engaged in as agent for the State?
MS WINTERS: Engaged in as pleaded by the applicants.
HIS HONOUR: That is where we come into difficulties, is it not? It occurs to me that this is obviously an interlocutory decision by the Full Court and if the facts are incapable of being agreed at this time a question must really arise as to whether the case is suitable for consideration by a Full Bench and whether, now that the difficulties of establishing the facts have emerged, it may not be appropriate to list it for further consideration by a Full Bench on a special leave day with a view to seeing whether special leave should be revoked.
MS WINTERS: Your Honour, we would ask for a further opportunity to see whether the issues between the parties could not be resolved before your Honour would consider that next step. It may be that with further time many of those issues will be resolvable.
HIS HONOUR: Monday last was fixed by arrangement on the previous occasion as to the date when that might be achieved. It was extended until Wednesday. Now, how much longer?
MS WINTERS: Unfortunately, your Honour, with the large number of parties there have been difficulties in achieving - - -
HIS HONOUR: Yes, I can understand - - -
MS WINTERS: I would ask for a short period of time, your Honour, because, from the appellants' point of view, we would be keen to maintain the momentum. There has been one meeting, late last night between the parties, and there have been a volume of correspondence exchanged but at this stage, your Honour, that process has not been exhausted.
HIS HONOUR: How much longer would you suggest?
MS WINTERS: I would only ask for two weeks, your Honour.
HIS HONOUR: I will hear what the other parties have to say then. Mr Birch.
MR BIRCH: Your Honour, we could not say, this morning, that it is impossible that an agreement might be reached although we would not be as optimistic as the applicant and 14 days would allow it to be pursued to exhaustion, and we do not oppose time for that to take. If agreement cannot be reached then the position, of course, that we adopted at the original special leave application was it was not appropriate, in the absence of such an agreement, and that would obviously remain our position subject to, of course, the ruling of the Court. Otherwise, our general position is almost identical so far as today's application is concerned to the second respondent's and I can let Mr Bathurst reveal that in more detail if he wishes.
BRENNAN CJ: Mr Bathurst.
MR BATHURST: Our position is this: the matter should go to a Full Bench to consider whether special leave should be revoked. It is for two reasons: it is fundamental to any agreement, as we see it, that when your Honour goes to subparagraph (2) of question one that the applicants' documents, (ii) would read, in effect, "the conduct of the other respondents engaged as agent for the State, act in accordance with the authority conferred on them." That was the position we took on the last occasion. That is the factual position we would seek to urge before a Full Court and the Full Court has the benefit of no findings of a court below on that issue. The second problem is this - - -
HIS HONOUR: Let me ask you this: if the question was asked in terms of, "the conduct of the other respondents engaged in as agent for the State for the purposes of carrying the Home Loan Scheme into operation" or whatever formula of words might be agreed, would that not raise a sufficiently crisp issue for determination?
MR BATHURST: That would raise a sufficiently crisp issue for determination but that leads to the second problem. It is, in effect, a hypothetical issue because the parties at any time, or the applicant, if it happened to be unsuccessful in the appeal, could still raise a case saying that the applicant, the respondents, were not doing that. In other words, as the Full Court hearing went ahead on the basis that, in effect, the facts as pleaded in the statement of claim and in the bundle of documents which was before the Full Court, what were the answers to certain questions, this Court would be asked to make an assumption which is not necessarily binding on the parties for the balance of the litigation and, in those circumstances, may be determining a hypothetical issue.
Now, I appreciate that that was an argument that was raised by us on the leave application and did not find favour with this Court, and I raise it with some temerity but it still does seem to me a difficulty and a difficulty which is highlighted by the exercise which has been going on up until now.
HIS HONOUR: All that means, as I understand it, Mr Bathurst, is that the answer to the question would at least cover the situation if findings of fact were made which might be made, having regard to the bundle of documents, that there were respondents engaged as agents for the State for the purpose, et cetera. So, it would not be necessarily hypothetical.
MR BATHURST: I would have to accept that.
HIS HONOUR: If that was clarified in some way, would that resolve the problem from your point of view?
MR BATHURST: Yes.
HIS HONOUR: What about question two?
MR BATHURST: Question two: provided question two is answered on the assumption that what the second respondent was doing was acting for the State in the implementation of the Home Fund Scheme, there would be an issue so far as we are concerned raised with sufficient clarity to enable this Court to adjudicate on - - -
HIS HONOUR: It seems to me that there is an inbuilt ambiguity in question (1)(a) of question two, "in carrying out their obligations under the Deeds", there would be a question of whether it is in the course of doing that or whether what was done was necessarily done to carry it out or whether there was simply an optional manner of carrying it out, and the answer may differ according to which way it goes. The difficulty about it is identifying the particular conduct which is to be the subject matter of attention under that paragraph.
MR BATHURST: We sought to overcome that in the formulation I gave to your Honour earlier by using the words, so far as Fanmac was concerned, "acting in accordance with their express authority" but it probably still begs the question. You can have express authority to do things in any number of ways which may raise different - - -
HIS HONOUR: Yes, exactly. The question of liability of a negligent driver: it is as simple as that, is it not?
MR BATHURST: That is right.
HIS HONOUR: And the same, of course, applies to (1)(b) then. To do what, is the question. Do you have any optimism in relation to the prospect of settling an issue at least within those parameters?
MR BATHURST: No. What it would involve is the applicant agreeing to it. As it is now, it is not a drafting issue or a matter of negotiating. There has been no agreement up to now and there is no basis for assuming the applicant will change his position.
HIS HONOUR: It is in the applicants' hands.
MR BATHURST: It is in the applicants' hands, yes. If your Honour pleases.
HIS HONOUR: Thank you, Mr Bathurst. Mr Bannon.
MR BANNON: For our part, your Honour, it was a matter of some significance that the Full Court question proceed on the assumption of the matters pleaded in the statement of claim, not the least of which was the fact that what was pleaded against the other respondents were misconduct as agents for the State. Secondly, that particular conduct was identified within the whole range of conceivable conduct which might be said to be part of or associated with the scheme. Essentially, what appealed to the Full Federal Court was the fact that their case, as pleaded, rested on two aspects and two aspects alone, namely, promotional material which was issued was misleading, being promotional material which emanated from the State and, secondly, that by the inherent nature of the scheme as devised by the State, it was defective, which gave rise to duties to warn; a duty which did not differ between the State and any other party involved.
So, in effect, what the Full Federal Court was saying, as we saw it: on the assumption Bradken has a second limb at all, one does not need to go into what may be a very hypothetical and difficult question as to how far it extends. One can simply say this: when you have a circumstance where the complaint is promotional material which came from the State and, in effect, anybody else who passed it on, is really a conduit for the State, surely that must be within any extension of the first limb of Bradken.
So, against that background, we submit, from the State's point of view, we would think any question which went to the High Court must be confined to those particular pieces of conduct and that an attempt to try and agree matters in relation to the Home Fund Scheme generally and form a view or express an opinion as to whether conduct generally within the scheme, be it as agent or otherwise, was within or outside the protection of Bradken, would be a hypothetical question and not a useful question.
HIS HONOUR: How would you express the conduct which, in your view, would be sufficiently identified to receive consideration?
MR BANNON: We were content with the question as framed in the Full Court, namely, having regard to the matters pleaded in the statement of claim, and I do not think we could - we do not seek to resile from a question so framed. The difficulty we see in the questions as revised is moving away from specific conduct which is identified into a more general area which raises questions which really cannot be predicted.
HIS HONOUR: In other words, you are willing to deal with it on a demurrer basis, is that right?
MR BANNON: Well, it is an odd basis, in the sense that it is a combined demurrer plus - it was dealt with as a separate question but you assume certain facts, namely, the ones in the statement of claim and then there were other facts which were going to be found but during the course of the Full Court hearing it turned out that they were not going to be treated as found facts or agreed facts. So, one really had two sets of assumptions, ultimately, in the Full Court.
Now, the present process being engaged in will only ever agree, as we see it, one of those sets of assumptions, but would still require, from our point of view, a continuance of the first set of assumptions, namely the conduct identified in the statement of claim. One will never get away from the fact that there will be a hypothetical element about the issue.
HIS HONOUR: Yes. What do you say, Mr Tobin?
MR TOBIN: Your Honour, if I could deal first of all with the Association which is the umbrella body. I do not understand that there is any prospect of our agreement with the proposition in the pleading that the Association and the Department of Health, that is in combination, were responsible for marketing, advertising, public relations and producing publicity material. We say that in fact that was not the case and that is the nub of the cause of action against the Association.
The cause of action against the Association, your Honour, appears to be framed, as I analyse it, as a failure to warn of a dangerous product or a product with inherent risks in it. That seems to be the way it is formulated in the various actions. So, I do not want to pre-empt the situation but it seems to us that what has been put for our agreement as to a statement of fact is that paragraph of the pleading and we, in fact, challenge that. That is a controversial assertion in the pleading of the applicant.
If I could move, your Honour, to the position of the individual Societies. Their relationship with the State does not emerge clearly from any deed or agreement in the way that perhaps the other respondents' relationship does. It is based upon an historical relationship between the Co-Operative Housing Societies and the State whereby the Societies were a vehicle for the provision of State funds to needy home purchasers. The relationship does not easily lend itself to characterisation from the documentation. That is the first problem.
The second issue, your Honour, is that the pleading itself by the appellants here proceeds on the basis that the Societies were agents of the State. So, on the pleading, if this was to be a simple demurrer point, there would not appear to be a difficulty. When one visits the reframed statement of issues, it is clear enough, I believe, your Honour, that the appellants are really wishing to push the edges of the envelope, as it were, so that, for example, question two No (2) asks:
If the non-State respondents are not agents of the Crown, or they are agents but are not therefore necessarily immune from the statutory prohibitions, are they nonetheless immune because -
of certain other factors.
This question seems to isolate the way in which the appellant is proceeding, which is not to accept the statement as Mr Bass put it that the non-State respondents were agents of the Crown for the purposes of the Home Fund Scheme, the way your Honour put it to us earlier. They do not accept that as a basis for it and, with great respect to what has been put on their behalf, we do not see, your Honour, that we will get agreement on the facts to the extent to which the facts are used, as it were, to hide in some way that conclusion of fact and law that your Honour has put to us.
HIS HONOUR: Ms Winters, your prospects seem a little bleak. I wonder whether the best solution may not be to just simply leave the matter in the list for a consideration of the Full Bench and the Full Bench will no doubt have to address, as the first consideration, the question of whether special leave should be maintained.
MS WINTERS: Your Honour, it would appear that some of the matters have only very recently been clarified as between the parties. The revised statement of issues was an attempt to clarify the issues, not to confuse them, and if that needs to be reconsidered then the appellants would be obviously prepared to do that to try to take away any confusion that has been introduced by that revised statement of issues.
There is prospect that the matter could be resolved in a manner that is acceptable to the other parties. I am, at this stage, your Honour, not in a position to say that that is a definite prospect but I am in a position to say that there is some prospect of that and would seek an opportunity to further consider the matters that have been aired by the respondents this morning and in earlier correspondence between the parties.
HIS HONOUR: I am anxious, of course, to avoid the continuing mounting up of costs in relation to this exercise also, which must by now be quite concerning.
MS WINTERS: We share your Honour's concern.
HIS HONOUR: I can understand that. There is a special leave day here on 13 March. I propose to stand the matter over until that day to give the parties an opportunity to see whether there are issues which can be defined with some clarity in order that an order may be made on directions bringing the issue for determination by the Full Court to some precision. If that can be done by consent, the consent order can be filed and it will not be necessary for the parties to appear. If it cannot be done then, again, it will be unnecessary for the parties to appear. It will be sufficient for the parties to advise the Registrar that no agreement has been reached and, in that event, the matter will simply go into the list of unheard matters before the Full Court and no doubt, when the matter is called on for hearing before the Full Court, the first question that will arise is whether or not the grant of special leave should be maintained. But I do not think there is any other course that is practically open at this stage.
Costs of today's proceedings will be reserved.
AT 9.44 AM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 13 MARCH 1998
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/HCATrans/1998/45.html