Vonhoff v Jondaryn Shire Council & Anor B91/2001 [2002] HCATrans 603 (15 November 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B91 of 2001

B e t w e e n -

ANTHONY EDWARD VONHOFF

Applicant

and

JONDARYN SHIRE COUNCIL

First Respondent

NOMINAL DEFENDANT

Second Respondent

Application for special leave to appeal

GAUDRON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 NOVEMBER 2002, AT 10.04 AM

Copyright in the High Court of Australia

MR D.O.J. NORTH, SC: May it please the Court, I appear with my learned friend, MR J.B. ROLLS, of counsel, for the applicant. (instructed by Shine Roche McGowan)

MR M. GRANT-TAYLOR, SC: May it please the Court, I appear with MR S.A. McLEAN, of counsel, for the respondent. (instructed by Wonderley & Hall)

GAUDRON J: Yes, thank you, Mr North.

MR NORTH: Can I take your Honours to the critical finding made by his Honour the trial judge which is found in the record at page 9 at paragraph 18 of his reasons. There his Honour concluded by finding that the critical piece of equipment that was used on the day:

was not used . . . for the construction of works for, or maintenance of, road transport infrastructure. It was being used, and was ordinarily used, for repair and hence the maintenance of the water reticulation system.

Consequently, "It was therefore not within exclusion" of the relevant definition of the Act and was therefore "a motor vehicle" within the relevant definition so that the Motor Accident Act responded to the applicant's pleaded case.

GUMMOW J: Have these provisions been amended or repealed?

MR NORTH: They have. The definitions - the relevant regulations have changed and therefore there is for the purposes of my client's case a different definition in force now. With that and knowing that, can I develop our submissions as to why in this case - nevertheless there is an important question relating to the administration of justice that arises in this case.

Your Honours, the finding that the equipment was not being used for either maintenance or construction of road infrastructure was overturned by majority. Can I take your Honours firstly to the reasons of Justice Williams. At paragraph 16 of his reasons in the record at page 26, there his Honour observed - held that the findings establish:

that the work being done was necessary for the maintenance of the road. -

and his Honour goes on to say:

If the water pipe which was under the road (the footpath was clearly within the area of land dedicated to public use as a road) had been allowed to continue leaking the road would have eventually subsided or been eroded away. The work involved not merely repairing the leaking pipe, but was work necessary to maintain the road in a trafficable condition. In my view the work the bobcat was performing at the material time clearly comes within the definition of "maintenance" quoted above.

Your Honour, the President at paragraph 2 of her reasons, page 22 of the record, addressed this issue very briefly. After expressing agreement with the reasons of Justice Williams, she said in the middle of paragraph 2, a little over halfway down:

The leak needed to be repaired for the maintenance of both the water supply and the road.

Critically, your Honour, we submit that the assumption made by the majority in overturning the trial judge's finding was that the water leak had damaged or was likely to damage the road infrastructure. Your Honours, there was no finding by the trial judge to support that finding or inference.

GAUDRON J: It would seem like one based on commonsense, however, would it not, Mr North?

MR NORTH: Your Honour, one might suspect that in certain circumstances a leak might lead to damage but, with respect, your Honours, it just does not follow. A leak may be just a seepage that will cause no harm to a road or infrastructure.

GAUDRON J: It will undermine a road.

MR NORTH: Your Honours, there was no evidence before the Court of Appeal to enable - - -

GAUDRON J: I take it that the leak was apparent on the surface of the road which is why your client contacted his employer. It was an obvious leak, he saw it.

MR NORTH: He saw water.

GAUDRON J: Yes, it was not seeping away.

MR NORTH: Your Honour, he saw water and he called. Because he was a foreman, he called in a crew but, your Honour, there was no evidence given that the leak was damaging the road or was about to damage the road. The proceedings before the trial judge was a trial where our client was called to give evidence and he was cross-examined. Other witnesses were called and cross-examined as to the type of equipment and how it was ordinarily used.

Your Honours, the circumstances in which a question of the principle of the administration of justice arises is because here the Court of Appeal overturned findings and inferences by the trial judge where they did not have the transcript of the evidence before them. The matter came before the Court of Appeal by way of an application for leave to appeal under section 118(3) of the District Court Act because the determination by the trial judge was a determination of a preliminary question that had been posed for him. It was not a final determination. Consequently, it was necessary for the respondents in this Court to apply for leave to appeal to the Court of Appeal.

The matter came before the Court of Appeal by way of an application with some affidavits that exhibited the judgment below and some of the documentary evidence, but critically the evidence of the witnesses as to the nature of the leak, the condition of the road and the circumstances that applied on the day was not before the Court of Appeal. Nevertheless, the Court of Appeal by a majority proceeded to overturn findings in a way in which is only authorised on an appeal by way of rehearing without the benefit of the evidence that was before the trial judge.

Your Honours, the central point we seek to agitate and the critical question it raises an issue of the - - -

GUMMOW J: The matter you have just adverted to, was that a matter which concerned the dissenting judge in the Court of Appeal?

MR NORTH: No, it did not. Her reasons were short and Justice Holmes' reasons can be found in the record at pages 28 and 29 of the record. But relevantly on this point she expressed agreement with the reasons of the judge below - that is at the top of page 29 - and she said:

It was, as the learned judge at first instance said, incidental. It seems to me that it was at least open for McGill DCJ to reach the conclusion he did on the findings of fact he had made; and I have indicated I would, in any event, have reached a similar result.

GUMMOW J: They were all complaining about the drafting of the relevant laws, were they not?

MR NORTH: Yes, your Honour, all the judges.

GUMMOW J: And the connection between the Motor Accident statute and the Transport Infrastructure Regulation?

MR NORTH: Yes, your Honour. It is a matter of continuing anguish for practitioners in this State. We just have a different set of regulations. But the critical point here arises, your Honours, in a circumstance of the law that authorises an appellate court to overturn findings and inferences. It is trite to remind your Honours of Warren v Coombes and that of course is authority for the proposition that an appeal court in an appeal by way of rehearing without it can substitute its own findings or inferences but that judgment and the principle that it underlines proceeds on the basis that the appellate court at the time is in as good a position as the trial judge to substitute its own findings.

GUMMOW J: Yes, but what is the practice in the Queensland Court of Appeal? Is it right that quite often applications for leave turn into an actual hearing?

MR NORTH: That is common, your Honour, but in my experience that happens when the point is a practice point and the relevant affidavit evidence or whatever was before the chamber judge is before the court or the point is a matter on which evidence does not matter, it is a pure point of law or construction on the documents. Frequently, the issue of whether leave should be granted will be argued and the matter then adjourned to a later sittings for hearing full argument after the preparation of a proper record.

GUMMOW J: You are not complaining you were ambushed in any way, are you?

MR NORTH: Your Honour, it seems that the matter - and I was not there, your Honour - but it seems from what I can understand - - -

GUMMOW J: I understand you were not there.

MR NORTH: - - - but I can assume that argument went from leave into the merits without anyone adverting to the critical issue that what was sought to be a - - -

GUMMOW J: Both sides were represented by senior counsel?

MR NORTH: Yes, your Honour. Your Honour, can I point out that the transcript of evidence is relevant not only for what it says but for what it does not say. It is for this reason, your Honour, that there were no questions of my client or of any witness as to the nature of the leak or its propensity or the likelihood that the leak of water would or might cause any road damage. The absence of any evidence about that underscores why the trial judge made no findings about that, it was not relevant to the issue. The evidence went solely to this: he observed water, he inferred there was a leak and he determined to rectify the leak and there was no evidence from any witness -and there were witnesses called on both sides - and there was no contention by way of cross-examination or leading evidence from the witnesses by either side that the integrity of the road system was a threat at that time.

The Court of Appeal, with respect, have made an unwarranted assumption and drawn an unwarranted conclusion as to the facts and they have done that in circumstances where they did not have the benefit of the evidence that was before the trial judge. May I also observe that Justice Williams described the trial judge's reasons as very careful and the President described them as persuasive in circumstances where, however, she drew a different conclusion of fact.

Your Honours, the respondents in their outline - our opponents - at paragraph 18 of their outline at page 42 of the record, they concede that the critical determination in the Court of Appeal proceeded by way of an analysis of law and an assessment of evidence. The question we pose is, how can the Court of Appeal consistent with principle have assessed the evidence contrary to the findings and contrary to our client when the evidence was not before them?

GUMMOW J: The answer is to some extent bound up with what counsel were doing at the time in the case.

MR NORTH: That may well be, your Honour, and it may be that - - -

GUMMOW J: If that is the way it is going, it is counsel's job to get on their feet and make a point about it.

MR NORTH: It may be that some of the blame for the error has to be shared.

GUMMOW J: Or, indeed, after delivery of reasons and before he taking out of the order to complain then if it entirely by surprise, but I doubt it was entirely by surprise.

MR NORTH: It was in a way because, your Honour, the major focus of the issues had always been the other point that was determined in our client's favour on the permit point and this was very much a side issue - - -

GUMMOW J: I said "entirely".

MR NORTH: Until the reasons were delivered and judgment was given.

Your Honours, notwithstanding that we are dealing with legislation that is peculiar to Queensland and has been repealed, the principle is that the determination determines my client's rights in this action against him. He is left with no remedy to sue in damages under the Motor Accident Insurance Act because of the critical finding made in the Court of Appeal, the finding being a finding of inference relating to evidence when the Court of Appeal did not have that evidence before it and where there was no basis for overturning what all the judges said were variously persuasive or careful reasons below.

They are our submissions, your Honours.

GUMMOW J: Thank you.

MR GRANT TAYLOR: Your Honours, may we commence by taking your Honours to - - -

GUMMOW J: No, you may not commence until you are asked.

GAUDRON J: We do not need to trouble you in this matter.

MR GRANT-TAYLOR: May it please your Honours.

GAUDRON J: Given that it is not clear upon what basis this matter was conducted in the Court of Appeal of the Supreme Court of Queensland, we are not persuaded that it is in the interests of justice for the grant of special leave in this matter. Moreover, the proposed appeal raises no question of general importance such as might attract the grant of special leave, and the provision in issue in this application is no longer in force.

Accordingly, special leave is refused and, in accordance with the usual practice, it will be refused with costs.

AT 10.23 AM THE MATTER WAS CONCLUDED