Samin v State of Queensland & Ors B71/2001 [2002] HCATrans 96 (5 March 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B70 of 2001

B e t w e e n -

SHEREE ANNE RICH

Applicant

and

STATE OF QUEENSLAND

First Respondent

THE MINISTER FOR EDUCATION OF QUEENSLAND

Second Respondent

WILLIAM THEODORE D'ARCY

Third Respondent

Office of the Registry

Brisbane No B71 of 2001

B e t w e e n -

VIVIAN CHRISTINA SAMIN

Applicant

and

STATE OF QUEENSLAND

First Respondent

THE MINISTER FOR EDUCATION OF QUEENSLAND

Second Respondent

WILLIAM THEODORE D'ARCY

Third Respondent

Office of the Registry

Sydney No S104 of 2001

B e t w e e n -

STATE OF NEW SOUTH WALES

Applicant

and

ANGELO LEPORE

First Respondent

TREVOR ALAN MICHELL

Second Respondent

Applications for special leave to appeal

GLEESON CJ

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 MARCH 2002 AT 9.32 AM

Copyright in the High Court of Australia

__________________

(The matters of Rich v State of Queensland & Ors; and Samin v State of Queensland & Ors were called)

MR D.O.J. NORTH, SC: May it please the Court, in both matters I appear with my learned friend, MR R.C. MORTON, for the applicants. (instructed by Shannon Donaldson Province Lawyers)

MR P.A. KEANE, QC, Solicitor-General for the State of Queensland: May it please the Court, in both matters I appear with my learned friend, MR D.J. CAMPBELL, for the respondents, the State and the Minister. (instructed by Crown Solicitor for the State of Queensland)

GLEESON CJ: There is a note from the Deputy Registrar that she has been advised by Forest Lake Lawyers that they have received the consent of the Public Trustee to represent William Theodore D'Arcy, the third respondent in each of these applications, and that the third respondent does not wish to participate in the hearing of the applications for special leave to appeal and will submit to the orders of the Court save as to costs.

Mr Solicitor, we were so pleased to see you here that we thought we would hear you first.

MR KEANE: Thank you, your Honours. Your Honours, can we mention firstly something about what the case is about before we make the submission that the decision of the Court of Appeal is not attended by sufficient doubt to warrant the grant of leave. If your Honours would go to the appeal book at page 15, paragraph [4], your Honours will see the pleading that was struck out. Your Honours will see that it says:

The crux of the plaintiff's allegations . . . After setting out formal matters . . . the following two allegations:

"3. In the premises pleaded above, the First Defendant and/or the Second Defendant and/or the Third Defendant each owed to the Plaintiff a duty to ensure that reasonable care was taken of her whilst she was at the school.

4. In breach of each of the Defendant's duties between 20 October 1963 and 1 July 1965 the Third Defendant assaulted the Plaintiff."

If your Honours would look at paragraph [6] on page 16, your Honours will also see that it is noted:

Despite the use of the words negligence and assault, it is clear that no allegation is made that the State is vicariously liable for D'Arcy's acts in its role as his employer at the times in question. So much was confirmed on appeal by Mr North SC for the plaintiffs.

So that there is no case made of vicarious liability.

The reasons for which the pleading was struck out your Honours will find shortly stated at page 19, paragraph [16]. We would invite your Honours to read that, particularly the last couple of sentences on page 19:

But before the State can be held to liability for failing to perform its duty, it must be proved and, for that purpose, must be alleged to have acted in breach of its duty in some identifiable and identified respect. It is not enough for the plaintiffs to assert, as they do in para 3 of their statements of claim, that, because the State's employee and teacher the third defendant D'Arcy assaulted the plaintiffs "at school", the State acted in breach of its duty to ensure that reasonable care was not taken of them by the State.

The Court of Appeal, as your Honours will see from the balance from the orders that were made that your Honours will see at page 22, struck out the statement of claim and gave leave to re-plead. That leave has not been exercised. The kind of allegation that might be made of actual fault on the part of the State, an actual breach of duty on the part of the State, your Honours will see examples stated at page 27, paragraph [44] in the judgment of Justice Williams. While that leave has not been exercised it has not been disavowed and, as your Honours have seen, there is currently no case of vicarious liability.

GLEESON CJ: No, I see from page 35 of the application book that the grounds of appeal proposed do not include any case of vicarious liability.

MR KEANE: Quite, your Honour. Your Honour, that is a matter which is a matter for the Court as to whether the Court would be assisted by the reasons of the court below looking fully at the issue if the issue was to be litigated.

GLEESON CJ: But is it not the case, Mr Solicitor, that to reach the conclusion that it reached in the present case, the Queensland Court of Appeal declined to follow a decision of the New South Wales Court of Appeal, being the decision in next case?

MR KEANE: It did, your Honour, but that case - that is right, but that case, of course, was also avowedly not a case of vicarious liability.

GLEESON CJ: That case has its own problems in relation to the findings at first instance.

MR KEANE: The essence of that case, it seems to us, with respect, seems to be stated in the judgment of the learned President - this is Lepore, your Honours, and in our bundle of authorities, Lepore's item 3, we only want to take your Honours to one paragraph which we do submit states in a paragraph the ratio of that decision and it is a proposition that is not about vicarious liability, it is about non-delegable duty. It is at page 13 of the reprint, paragraph [61], where the learned President said:

In my view the State's obligations to school pupils on school premises and during school hours extends to ensuring that they are not injured physically at the hands of an employed teacher (whether acting negligently or intentionally).

GLEESON CJ: What does that word "ensuring" mean? I mean, suppose that an employed teacher suffers some kind of psychiatric collapse and, in consequence, becomes a danger to children, not in any sexual sense, but becomes physically dangerous to them because he might engage in extreme violence.

MR KEANE: Quite.

GLEESON CJ: What does it mean to say that you have to ensure that they are not physically injured by a teacher?

MR KEANE: Your Honour, in our submission, that is the nub of the problem and that is why, in our respectful submission, that decision and the view that is urged on the Court here is a view which involves a hopeless confusion of concepts.

GLEESON CJ: But you are not suggesting that we should refuse leave to appeal in this case on the ground that the decision of the court of New South Wales was unarguable incorrect?

MR KEANE: No, your Honour, rather it is this: that in so far as this case is put forward as a case of breach of non-delegable duty, if one looks at the statement of claim that was struck out, one sees the very peculiar novel and insupportable case that is pleaded and that was struck out. It is a pleading case, leave to re-plead was given and it has not been exercised, nor disavowed, nor is there a case of vicarious liability. It is a matter for the Court, of course, to decide whether this case is an appropriate vehicle to review the questions of non-delegable duty.

Your Honour directs us to the question, what does "ensure" in this context mean? Our response to your Honour is that it really is to confuse a number of concepts. So if we can just explain that in three paragraphs, we hope. The first is that as to non-delegable duty, it is not an absolute duty to ensure a result, to respond shortly to your Honour's question. This is clear. It is fundamentally incorrect to say that the non-delegable duty is a duty to ensure a result. What non-delegable duty means in this context is accurately, in our respectful submission, stated by Justice Thomas at page 24 in paragraph [29].

GLEESON CJ: Your argument may be perfectly correct, Mr Solicitor, but the very existence of the decision of the New South Wales Court of Appeal indicated that there is a need for some clarification of this area of the law, does it not?

MR KEANE: Your Honour, I cannot sensibly respond in the negative to that proposition.

The other things we wish to say, if we might say them shortly, though, about this case and in particular bearing in mind the allegation that was struck out, we say it is most unlikely that this Court would hold that the Queensland Court of Appeal was wrong to strike out the allegation that in breach of the duty of care, Mr D'Arcy assaulted the students as constituting a viable cause of action.

GLEESON CJ: Just take us back again to that page.

MR KEANE: Your Honour, that is in the judgment of - it is Justice McPherson's judgment, where he sets out the pleadings. It begins at page 15, paragraph [4], and as his Honour said, "The crux of the plaintiff's allegations" are in paragraphs 3 and 4 and he has there set out the text of them.

GLEESON CJ: There has never been any evidence led in this case, has there?

MR KEANE: No, your Honour, the case is at the stage of pleading and, as your Honours will have seen, it involves matters that occurred in 1963 and 1965, so that there will be questions of limitations that arise and questions of extension of time that will arise as well, and they also have not yet been resolved.

GLEESON CJ: I suppose it is theoretically possible that the plaintiffs might set out to make a case that there was some kind of information available to the authorities that should have alerted them to a risk or something of that kind.

MR KEANE: Your Honour, that is the kind of case that Justice McPherson adverted to as a possibility at page 19, paragraphs [14] and [16] and which Justice Williams referred to by way of examples in the examples given, paragraph [44], page 27, failures in terms of:

(i) negligent hiring;

(ii) negligent training;

(iii) negligent supervision;

(iv) failure to terminate employment;

(v) failure to provide counselling;

(vi) failure to investigate allegations;

(vii) failure to report abuse.

They are all the sorts of cases that might be run if the plaintiffs avail themselves of the leave to defend and could make such a case.

GLEESON CJ: The leave is leave to re-plead.

MR KEANE: Sorry, the leave to re-plead, I beg your Honour's pardon, leave to re-plead. As we have mentioned, that leave has not yet been exercised nor has it been disavowed, as we have said in our outline.

Your Honours, very briefly, the other things we wish to say about the vicarious liability argument which is floating around but not an argument which has yet been made is simply this, that assault and negligence are different theories of liability. A person injured by an intentional assault is not injured by want of care on the part of the assailant. Vicarious liability is a liability for acts of omissions of one's vicar, whether those acts are negligent or intentional. While a person may be vicariously liable for an assault authorised by that person, that person is liable for assault, not a failure to observe a duty of care. The other side's argument comes to this and this is the case that has been pleaded and was struck out and we submit, plainly correctly, that a non-delegable duty to take reasonable care owed by the State is breached by the State, not by reason of any failure on the part of the State to take any step at all in the way of reasonable care for the safety of the students, but because the child suffered injury inflicted by an employee. That is to say, an absolute duty, not a duty to exercise reasonable care, but an absolute duty to ensure the safety of the child and, your Honours, in our respectful submission, that is simply not a duty supported by any of the authorities and, in so far as the pleading in this case is concerned, it is a pleading of a theory that was rightly struck out.

GLEESON CJ: Now, Mr Solicitor, what we thought we might do is hear what Mr North had to say in reply to you and then, before giving a decision in this matter, hear argument in the next matter and then give decisions in them together. Yes, Mr North.

MR NORTH: Your Honours, there are, as briefly as I can state, three reasons why we submit there should be a grant of leave. The first is that the Court will have the opportunity to resolve an unsettled issue as to the liability of a school authority for intentional tortious assaults by a teacher where the teacher concerned is the person to whom the authority has delegated its function and obligations of care. The issue arises in circumstances where there - - -

GLEESON CJ: What is your case in that regard?

MR NORTH: That, your Honour, having an obligation to care, the particular obligation here that we say is breached is the obligation to protect from moral danger.

GLEESON CJ: Is it your case that if a male school teacher employed by the State of Queensland rapes a female pupil, the State of Queensland is liable to pay her damages, regardless of whether it had any reason to suspect that she was at risk from that teacher and regardless of whether its own systems were in some way deficient?

MR NORTH: Yes, your Honour, it comes down to that in the circumstances of the pleading.

GLEESON CJ: Does that apply whether the rape occurs during school hours or at the weekend?

MR NORTH: Your Honour, the particular case we plead and put is that the assaults occurred during school hours at school while there was the direct obligation to care. One of the Canadian cases that we have referred on the issue of vicarious liability draws a distinction as to vicarious liability which is the notion that is recognised overseas. As to whether the assaults occurred in the performance of the pastoral care or the care, if I call it that, or occur out of the hours and not as a result of the intimacy, that the care regime and hours of care arise. Now, we plead a case that while at school during the hours of school, these two women were assaulted in various ways and that this teacher at a one-teacher school had the sole responsibility for their care and protection.

GLEESON CJ: It would not have made a difference if, instead of assaulting them in the way he did, he had pulled out a gun and shot one of them in the leg?

MR NORTH: In the particular circumstances - your Honour, it might make a difference because one of the issues that a school authority has to take heed of is the particular risk of the predatory sexual conduct of adults against children.

GLEESON CJ: I do not understand why once you get away from the concept of some failure of a system, some knowledge of a particular risk - I understand you to be making out a case that because the school authority has a non-delegable duty, whatever exactly that means, to take care for the pupils, then if a teacher injures a pupil, that is it, the authority is liable?

MR NORTH: Your Honour, it would follow from our argument that that would be correct. Your Honour will have observed that we have pleaded that the Education Act made education compulsory and that it was a criminal offence for parents not to send their children to school. We have pleaded that this was a one-teacher school in remote western Queensland.

GLEESON CJ: What is the relevance of that, if your argument is right?

MR NORTH: Your Honour, the particular relevance for - - -

GLEESON CJ: What difference would it make if it had been a high school in Brisbane?

MR NORTH: The particular relevance is perhaps the compulsory education, that if you have a regime where parents are required to surrender the care of their children during certain hours to another person, to a State authority and the State authority delegates the responsibility for the care of those children to somebody, then the State authority is responsible and liable for the acts in direct violation of the obligation of care. Here one of the direct obligations is to care and protect against that sort of conduct.

GLEESON CJ: Now, it is quite clear that if we were to grant special leave in this matter, you would not be seeking to put an argument based on vicarious responsibility?

MR NORTH: Your Honour, that is something that has exercised my mind. We will certainly be taking the Court to the parallel decisions in the United Kingdom and in Canada, where the doctrine of vicarious liability has been developed to the result that we say should apply in Australia. One of the reasons why a pleading of vicarious liability was not initially made was my learned junior appreciated that the law in Australia was based upon a concept of non-delegable duty.

GLEESON CJ: I do not know what you mean by the word "initially". This is a pleading summons and there is only one pleading.

MR NORTH: There is only one pleading. Your Honour, the result of the decision in the Court of Appeal is that because of some obiter remarks by the judges about the authorities on vicarious liability, we believe that our options of a re-plead of vicarious liability may have been closed off by these obiter observations. We have not and we do not abandon any rights on a re-plead. The difficulty is that the Court of Appeal may have closed off that option and I was going to raise with the Court - I apologise, your Honour.

GLEESON CJ: At all events, you are not going to seek to sustain the pleading which is what this case is about on any basis related to vicarious liability?

MR NORTH: Not this pleading, but - - -

GLEESON CJ: This appeal is about this pleading.

MR NORTH: Yes, your Honour, and we do not quibble with that or try and slide out of that.

GLEESON CJ: It is also clear, is it not, that this pleading does not allege any failure on the part of the State of Queensland to institute proper procedures of supervision or protection for children?

MR NORTH: It does not, your Honour. There is a narrow focus for pleading. There are only two ways in which the issue of vicarious liability will be referred to in argument. That is because of what we say is the parallel line of authorities overseas that would influence the Court in making its determination about the doctrine of non-delegable duty, as we would assert it to be. Secondly, that we want to make it clear to this Court and to our learned friends that we regard ourselves at liberty, if we have to at a later date, to re-plead on that issue of vicarious liability and that the obiter remarks by the Court of Appeal should not be regarded as giving rise to an automatic strike out and having determined that against us finally. If it is to be said that it has finally determined that against us, then we would have to seek our remedy here. That has not been said by our learned friend. If it is, then we would have to take a different course and ask for an alternative ground of appeal argument.

GLEESON CJ: But you are not taking that course.

MR NORTH: Well, we have not heard from our learned friends that they regard the decision below as having finally closed that against us.

GLEESON CJ: If you get special leave to appeal, it will be on the basis of the draft notice of appeal that we have before us.

MR NORTH: Yes, your Honour.

GLEESON CJ: Thank you. Yes, thank you, Mr North. We will see what the parties have to say in the next matter before we give our decision in this matter. Call Matter No 2 please.

(At 9.54 am the matter of The State of New South Wales v Lepore & Anor was called)

MR C.T. BARRY, QC: May it please the Court, I appear for the applicant with my learned friend, MR G.W. MOORE. (instructed by I.V. Knight, Crown Solicitor's Office)

MR A.S. MORRISON, SC: If your Honours please, I appear for the respondent with my learned friend, MS J. OAKLEY. (instructed by Milicevic Solicitors)

GLEESON CJ: There is a certificate from the Deputy Registrar that she has been informed that there will be no appearance by the second respondent, Mr Michell. Yes, Mr Barry.

MR BARRY: In our submission, your Honours, there are seven reasons why there should be a grant of special leave in this case. May I state what the seven reasons are and then briefly develop the argument in support of them.

GLEESON CJ: That sounds as though you do not think there is one of them that is strong.

MR BARRY: No, with respect, your Honour, I think all seven of them are. The first is that there is no authority to support the principle on which the Court of Appeal decided this case. The second is - - -

GLEESON CJ: What was that principle?

MR BARRY: That there was strict liability for the intentional tortious conduct of teachers to pupils once the pupil had been delivered to the school and was in the school grounds.

GAUDRON J: It does not perhaps go that far, strict liability, I suppose, if the children are injured at the hands of somebody to whom the care of the children has been delegated. I mean it does not go so far, for example, as to cover earthquake, fire, buildings falling down because of storm or the like, does it?

MR BARRY: No, your Honour. The second ground is that the Court of Appeal has replaced the principle that the existence of a non-delegable duty of care creates an obligation to ensure that reasonable care is taken, what we say used to be the common law before this decision, with a principle of strict liability of the kind that I have briefly referred to in answer to your Honour's question.

The third is that the decision of the Court of Appeal is inconsistent with other decisions in that court and I will take your Honours to that.

The fourth is that the decision of the Court of Appeal is inconsistent with decisions in other States. Your Honours are aware, of course, now of the decision of the first matter today, Rich and the other matter of Samin. It is also inconsistent with the decision in Victoria and I will take your Honours to that.

The fifth is that the decision of the Court of Appeal is inconsistent with binding High Court authority, and that is Introvigne's Case, the distinction being that in Introvigne's Case the standard by which the conduct of a school authority is measured is whether or not the authority has insured that reasonable care was taken to protect the pupils from injury. This is not the test that has been applied in the Court of Appeal.

The sixth is that the decision of the Court of Appeal has far-reaching implications for the common law in relation to the liability of school authorities to pupils.

The seventh is that the decision of the Court of Appeal has far-reaching implications for areas of the common law other than those involving the liability of school authorities to pupils.

GLEESON CJ: Now, this is an important test case for your client.

MR BARRY: That is so, your Honour.

GLEESON CJ: Is this application accompanied by an offer on the part of your client to pay the costs of the appeal in any event and not to disturb the costs orders made below?

MR BARRY: If that is a condition of the grant of special leave, I have those instructions.

GLEESON CJ: Then why do we not hear what Mr Morrison has to say. Yes, Mr Morrison.

MR MORRISON: Your Honours, the points we would make are very brief. First of all, this particular case was replete with procedural difficulties at first instance. Secondly, a consequence of that was that there were no useful findings of fact.

GLEESON CJ: I understand that and that is a troubling aspect of the case, Mr Morrison, but is not the consequence of the order made by the Court of Appeal - and this is, as I understand it, the point of departure between the decision of the majority and the minority - that there is now a verdict against the State of New South Wales without those findings of fact?

MR MORRISON: Yes, it is true that the majority verdict has the consequence that it matters not whether the assault was of a sexual nature or simply common assault. Either way, the State was held liable, that is so.

GLEESON CJ: As I understand it, consistently with Justice Downs' decision, it could have just been a case of excessive chastisement?

MR MORRISON: His Honour did not find whether there had been one assault or multiple assaults. He did not find whether the assault was on one pupil or on several pupils. He simply repeated what was not in issue, namely that the plaintiff had been assaulted which was common ground between the parties from the outset. It is not clear - as the Court of Appeal said, there simply were no findings. He made some comments which could be seen as critical of some of the witnesses but, on the other hand, he ultimately did not decide which of them he believed and which he did not.

GLEESON CJ: Does that mean that if the decision of the Court of Appeal stands, the judge who is deciding the damages issue is going to have to make findings on all those matters?

MR MORRISON: The consequence is that, as the Court of Appeal accepted, every single word of evidence that was called before Judge Downs is going to have to be recalled on a re-hearing and, to that extent, it matters not whether the approach is out of the majority or the minority in the Court of Appeal. Either way, all the evidence was going to have to be re-heard and the week of hearing before Judge Downs was, on any view, utterly wasted.

GAUDRON J: I wonder why do people keep splitting their cases like this?

MR MORRISON: Yes, it was forced on the parties, as I apprehended by his Honour retirement.

GLEESON CJ: He was going to retire.

GAUDRON J: Yes, even so - - -

MR MORRISON: It is most unfortunate that they agreed to it.

GAUDRON J: A very large number of cases have recently come to this Court where the problem has originated in the splitting of the case. It just seems to me this is by the by that notions about case management and throughput are dictating courses in relation to the trial of matters that just at the end of the day generate complications and cause inefficiencies in the system that far outweigh the problem that is sought to be solved.

MR MORRISON: We accept all that your Honour has said and, indeed, that was apparent from the moment we approached the matter for the Court of Appeal.

Can we just add this, your Honours. In the event that your Honours thought this a fit vehicle to go to full argument in the High Court, we would say that the issue of vicarious liability which was pleaded by us but not run by us at first instance ought also to go to the High Court for these reasons: First of all, Lister v Hesley Hall in the House of Lords was decided after the Court of Appeal decision and at the time that the decision was made not to run vicarious liability, the law in Australia and the binding law was the old approach, the Salmond doctrine which was rejected by the House of Lords, at least in large measure following the Supreme Court of Canada approach. It would be, we would say, wholly inappropriate that vicarious liability, being as it is described in the House of Lords as no more than a category of strict liability, should be excluded from the High Court's determinations.

GLEESON CJ: How would it get before us? Will you have to file a notice of contention?

MR MORRISON: That indeed is what we sought to do. We were told that there was no procedure for it and, accordingly, we amended our argument to raise it as best we could that way. We would need, as we apprehended, leave. We would not need to re-plead though.

GLEESON CJ: You would need leave to do what?

MR MORRISON: We would need leave, first of all, to challenge the decision in Deatons v Flew and the approach taken - - -

GLEESON CJ: No, I am sorry, I am thinking of the way in which the argument would get before us. If we were to grant special leave to the State of New South Wales to appeal, how would you get the issue of vicarious responsibility before us, by way of a notice of contention?

MR MORRISON: We would say all we need is the Court's leave because the matter is adequately pleaded at first instance, that is, we pleaded servant or agent liability - - -

GLEESON CJ: You mean leave to reopen earlier decisions of the Court?

MR MORRISON: Yes, yes, no more than that.

GAUDRON J: I think you would also need to file a notice of contention, would you not?

MR MORRISON: We would be entirely content to do that.

GLEESON CJ: It sounds to me as though you would be well advised to do it, Mr Morrison. The question of giving you leave would not be a question for us to decide - leave to reopen Deatons v Flew would not be a question for us to decide here, that would be a question for the Full Court.

MR MORRISON: Indeed. Can I say this, that we did actually seek to file a notice of contention and were advised that it was not open to us at this stage.

GAUDRON J: Cannot do it until there is an appeal on foot. You need an appeal on foot before you do that.

MR MORRISON: Yes, yes. Could I just draw your Honours' attention to what was said in that House of Lords decision in Lister v Hesley Hall, just in one respect because it echoes what was said by Justice Davies in respect of vicarious liability, that is, that the distinction between vicarious liability and strict liability may be quite illusory. The report I have is (2001) 2 All ER at 793 and Lord Millett, in paragraph 65 said this and it echoes what the other Law Lords said:

65. Vicarious liability is a species of strict liability. It is not premised on any culpable act or omission on the part of the employer; an employer who is not personally at fault is made legally answerable for the fault of his employee. It is best understood as a loss-distribution device -

Now, that echoes and picks up what was said in Bazley in the Supreme Court of Canada where in the Chief Justice's decision it was said, "What we are really looking at is who should bear the responsibility between two innocent parties, the party, on the other hand, that has assaulted, or the party that has required that person to be in the sole charge of their employee in circumstances of particular vulnerability". That approach in the Supreme Court of Canada was the approach that ultimately swayed the House of Lords. Now, we say that that issue, because it is ultimately a policy issue, should be squarely before this Court without any artificial distinction between vicarious liability and strict liability in those circumstances. So that if, contrary to our primary submission, this is a suitable vehicle to go up, then all issues ought to be brought before the Court.

GLEESON CJ: As I understand it, the basis on which majority in the Court of Appeal made the order they made was that the finding that the teacher was liable which resulted in the verdict against the teacher and the order for the assessment of damages necessarily resulted in liability of the State of New South Wales because the kind of liability of the teacher was breach of a duty that involved this concept of a non-delegable duty. But you would say the same consequence would flow if you looked at it in terms of vicarious liability?

MR MORRISON: That is so.

GLEESON CJ: There would not be any need for any further hearing on the issue of liability?

MR MORRISON: That is precisely the way we would seek to put it.

GLEESON CJ: In these three matters of Rich v The State of Queensland & Ors, Samin v The State of Queensland & Ors and The State of New South Wales v Lepore & Anor, there will, in each case, be a grant of special leave to appeal. In the case of The State of New South Wales v Lepore & Anor, that leave is granted on condition that the State of New South Wales will bear the costs of the appeal in any event and will not seek to disturb the orders for costs made in the courts below.

I would contemplate that these matters will be listed for hearing together.

MR BARRY: May it please the Court.

MR MORRISON: May it please the Court.

GLEESON CJ: And I assume that the hearing of all three matters together would take a day?

MR KEANE: I would think so, yes, your Honour.

MR NORTH: Yes.

MR MORRISON: Do we need to file a notice of contention, your Honour?

GLEESON CJ: No. The only problem you had about it was that until special leave had been granted there was not an appeal on foot. But now there has been a grant, you can go ahead and file your notice of contention.

MR MORRISON: Thank you, your Honour.

AT 10.09 AM THE MATTERS WERE CONCLUDED