Graham v State of New South Wales S230/2001 [2002] HCATrans 464 (20 September 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S230 of 2001

B e t w e e n -

BELINDA LEE GRAHAM

Applicant

and

STATE OF NEW SOUTH WALES

Respondent

Application for adjournment

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 SEPTEMBER 2002, AT 10.16 AM

Copyright in the High Court of Australia

MR J.E. ROWE: May it please your Honour, I appear with my learned friend, MR J.H. YOUNG, for the applicant. (instructed by Beston Macken McManis)

MR C.T. BARRY, QC: I appear for the respondent with my learned friend, MR G.A. LAUGHTON. (instructed by the Crown Solicitor for the State of New South Wales)

HIS HONOUR: Yes, Mr Rowe.

MR ROWE: Your Honour, this application is in relation to standover the date for the application for leave.

HIS HONOUR: When would that application have come on in the ordinary course? Have you been told?

MR ROWE: On 5 November I think it is set for, your Honour. On the basis that the cases of Lepore and Rich that are presently before the Court will have or may have some bearing on this case.

HIS HONOUR: Now, that is inherently surprising. This judgment was given by the Court of Appeal of 20 July 2001. One of the parties to the judgment in this case was the President of the Court of Appeal, Justice Mason. The decision in Lepore in which Justice Mason wrote the leading judgment was given in April 2001, some months before his decision in this case. He makes no reference to Lepore in his decision in this case.

MR ROWE: That is so, your Honour.

HIS HONOUR: Do you think he may have overlooked it?

MR ROWE: Lepore was not raised, as I understand it, your Honour, before the Court of Appeal.

HIS HONOUR: I can understand why.

MR ROWE: Well, your Honour, yes, I can - our position though, your Honour, is that the fundamental position in Lepore and in Rich does involve the question of the extent of duty with school authorities, albeit in a context where the claim in Lepore and Rich involves the activities of a teacher and criminal activities possibly at that. In this case, the duty that is involved is an application for bus transport supported by a medical - from a doctor that she should have transport. The school authority is not providing transport and - - -

HIS HONOUR: This case does not give rise to any question about a vicarious responsibility, does it, or about non-delegable duty?

MR ROWE: No. It is a question of how far does the duty extend and, in particular, does it extend in some circumstances, and we say such as these, where the student is outside the schoolyard and going to and from school.

HIS HONOUR: I understand the problem and the point at issue, Mr Rowe, but I must say that having heard argument about two or three weeks ago in Lepore, Samin and Rich, I cannot see any connection between those cases and this one.

MR ROWE: Your Honour, the only connection can be if the Court provides any guidance on the question of the extent of the duty that school authorities may have to students. Your Honour, we see a possibility that that may happen. We acknowledge that the facts are fundamentally different but both cases do deal with the question of the extent of the duty.

In this case the question of knowledge of the school authorities of the student's restricted eyesight and inability - capacity to fall over are factors of knowledge and I think it is in Rich there was some question as to whether or not knowledge was an issue in the - - -

HIS HONOUR: No. In neither Lepore, nor Rich, nor Samin was there any suggestion of want of care on the part of the education authority. The allegation in all those cases was that either because of a principle of non-delegability of a duty of care or on the basis of vicarious liability, the education authority, the State, was liable to the pupil because the pupil had been physically assaulted by the teacher.

MR ROWE: I understand that, your Honour. I understood the argument in the Full Court in Rich did involve some question or comparison with the circumstances as to whether or not there had been some knowledge on the part of the department as to whether that may or may not have led to an effect of the non-delegable duty or any other duty.

HIS HONOUR: There was no argument about knowledge in this Court.

MR ROWE: Well, your Honour, I was not present during the course of the argument in this Court, your Honour.

It is really a question for abundant caution so far as the applicant is concerned that if this Court does, in fact, provide some guidance as to what the extent of that duty may be in those cases - and, your Honour, we would submit that it is possible it may - then that may well affect the question as to whether or not leave is granted in this application.

HIS HONOUR: Well, I would hope that the Court may provide some guidance as to the extent of a school's duty to a pupil but the question is whether such guidance would have any relevance to the present case, and I have to say that as present advised I cannot see that it would.

MR ROWE: Well, we cannot know that, your Honour, from our point of view.

HIS HONOUR: You can know that Justice Mason, who decided this case in July 2001, had previously decided Lepore in April 2001 and he did not even mention Lepore in his decision in this case.

MR ROWE: That is so, your Honour, we know that. Your Honour, our position I think is, simply stated, that both Lepore and Rich do involve questions of duty of school authorities and so does this case. Whether or not the decision in Lepore and Rich will in fact touch upon this case is a matter we really do not know but we see that it may. If it does, it would be an important consideration. Obviously, if the decisions in those cases are handed down before 5 November - and I have no idea when they might be, your Honour - the purpose of standing it over would be removed. Whether it should stand over to May of next year is really a matter of - - -

HIS HONOUR: Where did you pick that date of May from?

MR ROWE: I think, your Honour, it is a date for a callover. It is really just an arbitrary decision, your Honour, to give sufficient time for this Court to deliver the judgments in Lepore and Rich; for no other purpose than that, your Honour.

HIS HONOUR: Thank you, Mr Rowe. Mr Barry.

MR BARRY: Your Honour, Lepore and Rich were cases about liability in circumstances where there was no fault established in the department in the way in which it conducted its acts of supervision or otherwise. The issue in this case is whether or not - - -

HIS HONOUR: When you say "there was no fault established", there was no fault alleged.

MR BARRY: That is so.

HIS HONOUR: Certainly in the Queensland cases.

MR BARRY: That is so, and in Lepore as well. The present case is a case where the question is whether or not there was a duty of care to provide transport, that is, by the Department of Education to provide transport, and whether there was a breach of that duty in the circumstances. Those, of course, are radically different questions than what the Court was considering in Lepore and Rich, in our respectful submission. Whatever the Court decides in that case, it cannot affect the issues that arise on this application.

HIS HONOUR: Mr Rowe.

MR ROWE: Your Honour, we obviously say there is a possibility it may.

HIS HONOUR: This application for special leave to appeal from a decision of the Court of Appeal of New South Wales is, I understand, listed for hearing before this Court on 5 November. There is now an application to take the matter out of the list for that day and to have it relisted for a date sometime in 2003. The basis of the application is what is said to be an apprehension that the matter may be affected by the pending decisions of this Court in the cases of Lepore, Rich and Samin, which were argued in Canberra about three weeks ago and in which the Court has reserved its decision.

So far as I can see, none of the contentious issues that were argued in those three cases would have a bearing upon the resolution of the application for special leave to appeal in this matter. The only thing this case has in common with those cases is that, like them, it is a case in which a school pupil is suing a school authority. However, unlike those cases, this is a case in which the pupil alleges direct fault on the part of the school authority in failing to make arrangements for her care in connection with transportation after school.

The outcome of the case in the courts below has turned upon the view that was taken as to whether or not there was negligence on the part of the school authority or employees of the school authority in failing to make certain transportation arrangements.

My impression that the case involves issues quite different from those ventilated in Lepore, Rich and Samin is confirmed by the following circumstance: the President of the Court of Appeal of New South Wales, Justice Mason, was a party to the decision in this case. Judgment in this case was given on 20 July 2001. Justice Mason had written the leading judgment in the Court of Appeal of New South Wales in the case of Lepore. That judgment was delivered in April 2001, some three months before judgment in the present case.

None of the judgments in the present case, including the judgment of Justice Mason, makes any reference to the decision in Lepore. The reason for that seems fairly clear: their Honours took the view that Lepore had little, if anything, to do with the issues that arose in the present case.

The application is refused. The applicant must pay the respondent's costs of the application. I certify for the attendance of counsel.

MR BARRY: May it please the Court.

MR ROWE: May it please your Honour.

AT 10.30 AM THE MATTER WAS CONCLUDED