Griffin v Palmer & Anor S176/2002 [2002] HCATrans 555 (5 November 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S176 of 2002

B e t w e e n -

JOEL GRIFFIN

Applicant

and

RAYMOND PALMER AND WILLIAM JAMIESON t/as BYRON BAY SKYDIVING CENTRE

Respondent

Application for special leave to appeal

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 NOVEMBER 2002, AT 9.30 AM

Copyright in the High Court of Australia

MR C.G. GEE,QC: May it please the Court, I appear with my learned friend, MR R.W.C. ROYLE, for the applicant. (instructed by Slater & Gordon)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR G. CURTIN, for the respondent. (instructed by Riley Gray-Spencer)

GAUDRON J: Yes, Mr Gee.

MR GEE: Your Honours, before I seek to formulate the points that would attract leave, could I emphasise two areas of fact. The first is that on the day in question when the aircraft left the ground with the parachutists on board the operation was a contingent one. It was contingent upon satisfaction of, in a sense, a condition subsequent that the wind got no stronger. It in fact did get stronger, and the attempt to satisfy the condition, that is communication to the aircraft by radio in the sense that the man on the ground radioed, did in fact take place. It was not heard, but it in fact took place. So that is the first area that I wanted to emphasise.

The second is the role of the pilot in a wider way. Could I briefly ask your Honours to look at page 12 of the application book? This is in the primary judgment in which there is set out a set of facts about the requirement for an Air Traffic Control clearance before anyone could leave the aircraft, and your Honours see the evidence cited there:

Shortly prior to a parachute jump the radio in a plane can become extremely busy as the pilot requires clearance from Air Traffic Control prior to a jump taking place. Therefore, shortly before the jump in question, Mr Spinks -

he was the pilot -

was in regular radio contact with Air Traffic Control at Coolangatta. It may have been the frequency was too busy -

et cetera. Your Honours, that evidence tells us that the pilot was crucial in the operation not just in the limited way in which it seems to have been looked at by their Honours below - - -

GAUDRON J: But crucial in - I mean, it was his aeroplane.

MR GEE: Yes.

GAUDRON J: He was not a servant of Byron Bay Skydiving Centre, was he?

MR GEE: Well, not on the Hollis v Vabu test, I would have to accept, your Honour.

GAUDRON J: But to succeed you have to make him the agent for some purposes.

MR GEE: Yes, and that will be my second submission in relation to a point that attracts leave. If I may come to that in a moment. The present point I wanted to emphasise factually was that absent the clearance from Air Traffic Control, which could only be obtained by the pilot, no one could leave the aircraft, experienced or inexperienced. Everyone in it was dependent upon the pilot doing two things: one, seeking and obtaining Air Traffic Control clearance; and two, communicating it to those on board. He was put in that position by the club who were in overall charge of the operation.

GAUDRON J: It is that second point that I am concerned with.

MR GEE: Yes.

GAUDRON J: Where is the evidence that he was put in control by the club?

MR GEE: He was necessarily and de facto put in that position, your Honour. It must have been known to all concerned that experienced or inexperienced, wind or no wind, the pilot was not merely the person who would be manipulating the controls of the aircraft and positioning it for the drop.

GAUDRON J: And he would also be in radio contact.

MR GEE: Yes, and he controlled operations in one important sense that I have tried to develop. He had to get the Air Traffic Control clearance and he had to communicate it. Now, it is, with respect, impossible to conclude that the club did not recognise that he had to be in that position and have that extent of control. When you then move on to the critical event, namely the fact that he, the pilot, said, "He hasn't radioed", he, the pilot, was making an objectively incorrect statement. The man on the ground had radioed.

GAUDRON J: It depends what "radioed" means.

MR GEE: Yes and no, your Honour. That seems to have been debated below. This all has to be considered, in my submission, in the context that what had been set up by the club was not fail-safe but the opposite. It was fail-fatal or almost so. That is, that there was no mechanism whereby the pilot could affirmatively assure himself that there had been - or, rather, he did not affirmatively assure himself that there had been no communication from the ground. What he stated - - -

GAUDRON J: What you are really asserting, Mr Gee, is an independent duty of care on the part of the pilot in the circumstances to check with Steve, is it, Mr Spinks?

MR GEE: No, your Honour.

GAUDRON J: Well, it is almost tantamount to that, is it not? It is the same in effect as - - -

MR GEE: No, with respect, your Honour. The pilot knew - we may safely infer that the pilot knew that he had been put in the position of being a critical communication entity by the club. I do not have to set him up with respect as any kind of independent duty-ower. He must have known that because his utterance was, "He hasn't radioed, so you'll be okay". He knew that there was an expectation of radioing if things were not all right at ground level and he made an utterance which is consistent only with, in my submission, him knowing of that position. But he was in that position because that is the way the club had set it up. "We will not use the ground markers. We will use the pilot as the intermediary for communication."

Now, he, the pilot, knew that there could be difficulties of radio communication and his obligation, we submit, which devolves back onto the club, having put him in that position, was to make a non-misleading statement.

GAUDRON J: Which was?

MR GEE: There are a lot of variants such as, "I haven't heard from him." "I haven't heard from him. I wonder if there's a communication problem." "I haven't heard from him. I was talking on the radio getting the clearance. We might've missed it. I'll check." One can think of lots of variants. What was misleading about the communication was, in effect, the combined statement, "He hasn't radioed" - objectively incorrect - "So you'll be okay". Test the point by a slight change of facts, your Honours. That the pilot in fact received a statement from the ground that the wind had got too strong but for some reason did not pass it on, and everyone jumps. Now, with respect, it is inconceivable that the club, having put him in that position and made him the conduit for communication, would not be liable in that situation.

GAUDRON J: You have an exemption clause in that situation, have you not?

MR GEE: Not in respect of a statement which breaches the Fair Trading Act, your Honour.

GAUDRON J: I see, yes.

MR GEE: Now, the result of all of that, in our respectful submission, is that there are two matters which would attract properly the consideration of the Court. The first is the consideration of what we might call "de facto reliance". The Court of Appeal's error on reliance, with great respect, was to look just at the words that were spoken as if they were the only elements in the equation, ignoring that de facto everybody was dependent on the pilot making a non-misleading statement to leave the aircraft. That can be demonstrated best by looking at the short passage in the judgment of the Court of Appeal where Justice Brownie, speaking for the court, at application book 66, said in paragraph 22:

it is clear from -

the applicant's -

own evidence that she did not rely upon what Mr Spinks said.

Now, with the utmost respect, that ignores the reality. The fact that two people were dependent upon him making a non-misleading statement in order to make the decision to jump. Of course I can accept that she relied on her instructors ultimately to say, "Yes, you can go", but what has been suppressed and overlooked, in my submission, is that there was de facto reliance by everybody - Dave, the applicant, everybody who had yet to jump - on the pilot making a non-misleading statement. Now, it is that, what I have called, de facto reliance, in my submission, has not been properly explored and, indeed, the parameters of what we might call a nonverbal - - -

GAUDRON J: What was the evidence at trial? You have to look at the evidence at trial.

MR GEE: Yes.

GAUDRON J: Was there more than the applicant's evidence?

MR GEE: Not on that - well, there was in the sense that other people gave evidence about it, but the trial judge accepted that body of evidence.

GAUDRON J: Yes, but ultimately on reliance was there any evidence over and above what Miss Griffin gave?

MR GEE: In terms of words spoken, no, your Honour.

GAUDRON J: In terms of anything else?

MR GEE: That is, with respect, my point, your Honour. The objective fact.

GAUDRON J: Yes, but was there evidence?

MR GEE: Yes, your Honour. There was evidence enabling the objective facts to be spelled out, namely that the club had set up a situation where, if things got worse below, they would communicate with the pilot.

GAUDRON J: Was that your case at first instance?

MR GEE: Yes, it was part of it, your Honour. The other aspect that, with respect, attracts the consideration of the Court is a point that your Honour Justice Gaudron touched on just a few minutes ago, namely this agency issue. Now, we would respectfully submit that this is a case in which it would be very apt for the Court to explore, consider and perhaps spell out with greater development what Justice McHugh determined in Hollis v Vabu where, contrary to the views of other members of the Court who found employment, your Honour Justice McHugh determined that absent employment there was still an agency and that flowed from the facts, which are set out at paragraph 73 of your Honour's judgment - and if your Honours need to go to the authority, it is bound up in our book of authorities, your Honours.

Now, that issue, that question of the extent of and tests for determining non-employment agency in a non-independent contractor situation, in my submission, has not been fully developed in the Court. This case would present an opportunity to consider that further.

GAUDRON J: But you are asserting an agency - - -

MR GEE: Yes.

GAUDRON J: - - - to make statements about conditions - - -

MR GEE: Not really, your Honour.

GAUDRON J: I think you are. You are asserting an agency to make statements binding on the Byron Bay Skydiving Centre - - -

MR GEE: Yes, and that is, with respect - I am sorry, I have interrupted your Honour.

GAUDRON J: - - - which is really quite different from an agency to do certain things. Now, you may well establish an agency to receive communications, I would have thought, but that is a different proposition from making communications on behalf of the Skydiving Centre.

MR GEE: With respect, your Honour, in this case they are inseparable. The pilot receiving the communication must have been, by definition, only one face of the story. If he received a communication from Air Traffic Control telling him that he had a clearance for his people to jump, that of itself would be only part of the story. He had to communicate that clearance so that they could. So it is with the communication to him, had it occurred, that it was now too windy at ground level.

Now, he was set up as the absolutely necessary, and indeed only available, conduit, given that the club had elected to use that form of communication with the result that, although of course I accept as an abstract proposition that your Honour has delineated two different kinds of agency, one to receive a communication and another to make it, in this case that abstraction has to give way to the fact that he, as the club had set up, had to perform the second half of the operation: make the communication and make it on its behalf. After all, he would have been passing on what the man on the ground was saying. The piece of information was of no relevance to the pilot. It did not affect his operation of the aircraft one bit. It did not cause him to fly it differently or change his activities as a pilot in any way. Its relevance was 100 per cent to the operation in which the club was engaged and no other.

The consequence, in our respectful submission, is that there is a reasonable creation of two areas in which the Court can properly explore unsettled areas. I have called it nonverbal reliance and the question of agency and, in my submission, this is appropriate as a case for special leave. I add, of course, that in any event it would be desirable to do so in the interests of justice in the circumstances of the case. I am obliged to your Honours.

GAUDRON J: Yes, thank you. We need not trouble you, Mr Jackson.

In essence, the only issue raised by this application is whether there was evidence to support findings by the trial judge as to reliance and agency. On that issue the proposed appeal does not enjoy sufficient prospects of success to justify the grant of special leave. Accordingly, special leave is refused.

You do not resist costs?

Yes, it is with refused with costs.

AT 9.48 AM THE MATTER WAS CONCLUDED