De Sales v Ingrilli P100/2000 [2001] HCATrans 541 (24 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P100 of 2000

B e t w e e n -

TERESA MARGARET DE SALES

Applicant

and

ALBERT INGRILLI

Respondent

Application for special leave to appeal

GAUDRON J

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 2001, AT 3.05 PM

Copyright in the High Court of Australia

MR M.J. BUSS, QC: May it please your Honours, I appear with my learned friend, MR N.P. DOBREE, for the respondent. (instructed by Hoffmans)

GAUDRON J: In this matter the Deputy Registrar has advised that she has been advised that the applicant in this matter will not be supplementing her application with oral argument and, accordingly, there will be no appearance by counsel on her behalf today. Mr Buss, we would like to hear you, but only on draft grounds of appeal 2.1.1 and 2.1.2, relating to the remarriage.

MR BUSS: Yes, thank you, your Honours. Your Honours, in considering this application and the ground of appeal that has been identified, it is important to bear in mind that this was a case where the Full Court found that the approach of the learned primary judge was flawed in some critical respects and it was necessary for the Full Court to redo the calculation - - -

KIRBY J: Then they fill out in the way in which they should approach it and in the quantification that followed, and is not the question of the approach of the courts of Australia to the prospect of remarriage of a widow something that is apt for reconsideration, given that relationships have changed, prospects of marriage, independence of women is different, financial independence? A lot of the jurisprudence on this was written in a bygone age. It is like a breath from another time.

MR BUSS: In our respectful submission, what has receded into the past, or should have receded into the past, is perhaps the attitude that was taken to the prospects of remarriage of a widow. But, in our respectful submission, the point of principle is still valid although the method of its application should be different.

HAYNE J: What is the principle that you say should be applied?

MR BUSS: The point of principle is that, against the background, as Justice Miller indicated, that one should, in fatal accidents applications, one would inevitably have to apply a broad axe and good imagination in assessing questions of damage and also discounts - - -

GAUDRON J: One wonders why one applies an axe at all.

MR BUSS: It is probably meant to be simply to the manner in which certain items of damage can be calculated, in the sense that they are not apt to be calculated with precision. But the point - - -

HAYNE J: I understand that, but what is the subject matter of the discount, the prospect that someone will, in the future, form, not simply another relationship, but another relationship of particular financial dependency? It seems to be a rather different issue from what is at least commonly referred to as the discount for remarriage prospects, is it not?

MR BUSS: No, the point of principle is this. That any applicant under the Fatal Accidents legislation is entitled to be compensated for economic or material disadvantage, or loss of support in consequence of the death of the deceased. Now, one of the factors that needs to be evaluated is an allowance for contingencies which may mean that in the future, by virtue of remarriage, be it a widow or a widower making the application - - -

HAYNE J: But it is not just by virtue of remarriage. Firstly, the relationship, if a new relationship be established, may not be expressed in marriage, and secondly, even if a new relationship is formed, the financial consequences, if I can use that expression, of the relationship may be vastly different because this applicant, for example, had gone to a position of substantial financial independence, had she not, following the death of her husband?

MR BUSS: Yes, certainly.

HAYNE J: So the assumption is what, that she will trade that in later?

MR BUSS: No, I had not finished developing the point, but the essential task that confronts the Court is to determine to what extent a discount should be made, having regard to the prospects of marriage or forming a new relationship which involves, in essence, a de facto relationship where, as a matter of common experience, if there is marriage or a permanent relationship of some kind, that there will be a pooling of the assets of both parties and the extent of the dependency that the applicant under the Fatal Accidents Act would have suffered had he or she remained living alone, would not have been to the same extent.

The necessity is to try and gauge as best one can, having regard, no doubt, to the age of the particular applicant and to their other relevant circumstances, what the prospect is that in the future they will form some form of permanent relationship which may mean that their economic circumstances are enhanced. I accept, immediately, that it may well be that a relationship is formed on a permanent basis which does not involve an enhancement of the economic circumstances of the applicant under the Act. But that, in principle, is the justification.

GAUDRON J: That raises the question entirely why this should be a separate discount, as it were, why it should not just be general adverse vicissitudes. But, really, in today's times it involves a degree of stereotyping, I should have thought, to make the assumption that seems to underpin the notion that you are seeking to defend.

MR BUSS: The fact that it is dealt with separately, your Honour, rather than simply being lumped in with other contingencies certainly is a matter of historical circumstance but - - -

GAUDRON J: It seems a bit anomalous, does it not?

KIRBY J: .....to review the historical circumstance given that the history has changed a little? This is real bread and butter stuff. This is going on in the courtrooms around this nation every day and people are getting up and they are quoting 1930 cases about relationships which - things have changed, the caravan has moved on.

MR BUSS: I accept the caravan has moved on but - - -

KIRBY J: Your best point is that the widow, the plaintiff, the present appellant, got a substantial increase in the amount of the judgment and got a not inconsiderable verdict. The overall position resulting is pretty satisfactory but it has been got by all judges assuming that words said by this Court years ago are still the law. It may be that we owe it to judges around the country dealing with these cases to have a look again at those principles.

MR BUSS: The important point is to ascertain what point is open to review. In our submission, it would not be appropriate, with respect, for the Court to grant special leave simply to determine that, rather than being viewed as a separate contingency, the matter should simply be lumped in with other forms of contingency and an overall discount reach rather than attributing a discount specifically to the prospect of remarriage or - - -

KIRBY J: What, your urging that if we grant special leave, we give general special leave so that all the little bits and pieces can be added up.

MR BUSS: No, I am not advocating - - -

KIRBY J: I think all we were suggesting was we would look at the discount for widowhood and remarriage.

MR BUSS: No, no, the submission I make is that the Court would not grant special leave in relation merely to determining whether a discount for the prospect of remarriage or a permanent relationship continue to be dealt with separately, as has been the tradition, rather than simply being lumped in with other contingencies. That is simply the point. The other point that I would make is that although accepting - - -

KIRBY J: So, in a way, looking at it from the point of view of defendants, one might think that the principle has now moved on to the point that women's economic independence is such that the likelihood is, in many case, where a widow loses a husband, that she will find, if she does not find another relationship that supports her economically, she will find her own way and the law should have regard to that reality.

MR BUSS: But it is our submission that this principle is not an expression of sexism, it is simply that in past social and economic situations, it was no doubt, inevitably, applied as a discount more in relation to circumstances where a woman was an applicant, than a man. But the justification for the point of principle applies equally to applicants who are men and women - - -

GAUDRON J: Yes.

KIRBY J: I have never heard of the widower's discount.

MR BUSS: Well, in principle, a court - - -

KIRBY J: In principle, yes, but I have never heard of a case, never heard of it mentioned, never saw law review articles about it, it is always the widow.

MR BUSS: Well, times are changing, your Honour, and the - - -

KIRBY J: I hope so.

MR BUSS: Well, I think they are. But the key aspect is not that the principle is wrong, it is a question of its application by the courts, and no doubt - - -

GAUDRON J: That is a very interesting question in itself, is it not?

MR BUSS: It may well be - - -

GAUDRON J: A very interesting question.

KIRBY J: You are making this more and more interesting, Mr Buss.

GAUDRON J: And, Mr Buss, you have also persuaded me that I should give you the opportunity to either retract your submissions that one cannot deal with the widow's discount separately from general contingencies or your tentative agreement with what I said, or to say why there should not be a grant of special leave on 2.2.

MR BUSS: No, I think, with respect, I have not made myself understood. The submission that I made, and I think I made it to his Honour Justice Kirby, was that there would seem, with respect, to be no point granting special leave in relation to this element simply with a view to deciding whether the contingency for remarriage or a permanent relationship should, instead of being dealt with in isolation, be dealt with as part of the overall contingencies because, ultimately, that would not yield a different result.

GAUDRON J: Yes, well, that means perhaps we were a little over-generous to you in saying we only need to hear you on 2.1.1 and 2.1.2.

KIRBY J: Your proposition is that if the approach special to widows falls out, then conceptually, as in quite a number of rules in this Court in recent years, it is subsumed in the general principle of discount for contingencies and maybe it goes into the five per cent correct bundle and there is no big discount. You might well be able to say, in this case, it has already been taken into account, or it has already been subsumed in elements of the verdict. What we have to be careful, in granting special leave, that we do not overcompensate on this point when it has already been subsumed on other principles.

MR BUSS: I accept that. I had not got to that other point, but the point that I was making is that if the principles which are to be applied to determine whether there should be a discount on this matter are not changed, then there seems to be little point, with respect, in simply determining that those same principles are to be dealt with under a more general rubric with, presumably, no specific allocation to the prospect of remarriage or a permanent relationship as opposed to other contingencies. All that will happen is that the same evaluation will take place but it will not be as transparent.

The submission that we would make is that if that were perceived to be the purpose of possibly granting special leave, that it would not ultimately achieve anything in terms of the future disposition of these cases other than to simply mask the process of reasoning or perhaps the reasons will be articulated that it will just simply be wrapped up within one overall percentage.

KIRBY J: That is an interesting question in itself, is it not, as to whether, for all its faults - it is a little bit like Garcia which dealt with Yerkey v Jones, that all the faults of Yerkey v Jones in a sense of being overtaken by changing relationships, it has still, for married women, worked important protections? Whether one then adheres to that principle, or develops a broader principle, or subsumes it in a general principle, is quite an interesting question, is it not, and important? It is bread stuff?

MR BUSS: It may be, your Honour, but it makes no ultimate difference to the disposition of cases and, in our submission, it is not a sufficiently important principle as to whether it be dealt with with other contingencies en masse or whether it be dealt with separately to justify special leave.

HAYNE J: But here, the leading judgment in the Full Court, seems to deal with the subject entirely after some introductory remarks by saying, "Only for my part, I would think that a woman of the appellant's age and credentials, a 20 per cent deduction would be appropriate". What does his Honour mean?

GAUDRON J: What his Honour means is she is relatively good looking.

HAYNE J: Her Honour would say that, I would not know.

MR BUSS: Well, your Honours, I think I can say that I was waiting for this question.

HAYNE J: Well, we are waiting for the answer.

MR BUSS: I can tell your Honours that I appeared before the Full Court but not at first instance and the applicant was not present. As to what is meant by "credentials", well, Justice Miller has a colourful expression in these matters and, essentially, what he was describing, I infer, was that the applicant was 36 years of age at the time of the trial; evidently, in good health; had successfully re-entered the work force; was developing a new career, et cetera. So those are the matters that he would have had regard, I assume, and the word "credentials" is an unfortunate word to use.

GAUDRON J: Yes.

MR BUSS: But one hopes that his Honour would have used it had the applicant been a man and in similar circumstances.

GAUDRON J: Of course, no question of discount would have arisen had the applicant been a man. I suppose one - yes, well, it just could not have arisen.

MR BUSS: Can I simply make this submission, your Honours? That if there is a difficulty in the way this principle is being applied, no doubt, that is not because of the fault of the principle but, perhaps, simply that the judges who may be applying them, or some of them, may not have the liberality and the up-to-date view of current social circumstances that one might hope, and that is something which will - - -

KIRBY J: It will not ever change whilst the old 1930s cases are trotted out to them. Maybe our job is to give a little liberality or up-to-dateness.

MR BUSS: If your Honours, with respect, are correct in the point that that is the problem, the problem is really one of approach in terms of perception of current social trends, rather than simply the misapplication of a principle. There is nothing wrong with the principle and in this instance the principle, in our submission, has not been misapplied, and it has not been misapplied because when one looks at the overall award, there was an award of some $900,000 reduced by a third for contributory negligence on the part of the deceased, and one cannot say that the Full Court, by majority, increasing the discount from 5 per cent to 20 per cent, necessarily made an error in the way the principle was applied.

More importantly, when one looks at the overall assessment as to whether the damages are proportioned to the loss, then one can readily see that there has been no miscarriage of justice in this instance. In other words, that if one were to do the exercise that the Full Court has done, with the benefit of a judgment from this Court, simply on this particular point, it cannot reasonably be considered that it is likely to lead to a different result.

KIRBY J: That might be so, and I take that point, and it really gets back very much to what I said to you that the actual result of the case does not seem terribly offensive to me. The bottom line seems to be not noticeably wrong, but you can only say that when you look at how you came to that bottom line and in the way of it has been this discount which has been reasoned in old-fashioned terms. It may be that if the matter were sent back, it would not result in a lot of difference, but at least then the principle in a case where an applicant comes to us and tenders the principle would be dealt with by this Court and people would cease pulling out the 1930s and 40s cases and De Salis would be pulled out and your very important contribution to the jurisprudence of Australia.

MR BUSS: Yes, well, can I finish by perhaps making three brief submissions? The first is that, in terms of the principles that were applied, the Full Court was in as good a position as the learned judge because the learned judge did not evidently apply a five per cent discount, having regard to the fact that he saw the applicant give evidence, so that does not appear to have been taken into account.

The second matter is that, in our submission, there is no error in the principle, but simply the manner in which it might have been applied in some cases, but not this case, and certainly not in the overall result. The third point is that I heard that my opponent was not appearing at ten past two and I knew I was potentially on a hiding of turning up and having the Court rule against me without an opponent. Those are our submissions.

GAUDRON J: Thank you. Mr Buss, as you have apprehended, there will be a grant of special leave. It will be, in general terms, limited to the matters set out in 2.1.1 and 2.1.2 and 2.2, but there is no reason why the applicant should not be able to reframe the grounds of appeal if so advised, although not to extend beyond those that are therein contained.

MR BUSS: Yes, thank you, your Honours.

KIRBY J: Do you understand that the applicant, now appellant, would be represented on the hearing of the appeal? That they are not here today, but we would have the assistance of counsel on the hearing of the appeal?

MR BUSS: I would expect so. I was very surprised that counsel was not here today - - -

HAYNE J: It will not be very helpful or satisfactory if there is no suitable representation on the hearing of the appeal.

MR BUSS: Yes, certainly. We will communicate that to the applicant's solicitors, your Honours.

HAYNE J: And if needs be to the Bar or whatever other organisation would stand in.

MR BUSS: Yes, indeed.

GAUDRON J: Yes, thank you, Mr Buss.

AT 3.26 PM THE MATTER WAS CONCLUDED