Andar Transport Pty Ltd v Brambles Ltd M178/2002 [2003] HCATrans 791 (20 June 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M178 of 2002

B e t w e e n -

ANDAR TRANSPORT PTY LTD

Applicant

and

BRAMBLES LIMITED

Respondent

Application for special leave to appeal

McHUGH J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 20 JUNE 2003, AT 9.32 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR P.H. SOLOMON, for the applicant. (instructed by Gadens Lawyers)

MR D.J. CHRISTIE: May it please the Court, I appear for the respondent. (instructed by Corrs Chambers Westgarth)

McHUGH J: Yes, Mr Jackson.

MR JACKSON: Your Honours, at the heart of this case is a question which is likely to arise more frequently as the demands of the workplace require employees to become contractors instead and to do so as one or two person companies. It arises when they are injured - - -

McHUGH J: Well, it is no doubt an important question, but is this a suitable vehicle having regard to the contract point? I think you should address your submissions to that to persuade us that we will inevitably get to this other question.

MR JACKSON: Yes, thank you, your Honour. As your Honour said, there are two points in the case and because of the terms of the provisions of the Wrongs Act section 24AD(4), the question of indemnity was one that had to be decided first. Your Honours, in that regard, the relevant provisions of the contract can be seen in the - your Honours have the full contract, I think, in the additional bundle of documents, at page 8 of the contract. Your Honours will see clause 8 there and clause 8 contains, relevantly, clause 8.2 and it has three parts and the parts which the Court of Appeal thought were relevant were 8.2.2 and 8.2.3.

Your Honours, if one goes first to 8.2.2, Andar, the applicant, being a company, any "Delivery Round", and if I could pause at that point, Delivery Round is a term which is defined in the parts of the contract which your Honours will see at page 14. It is defined a little curiously to mean:

all current and future customers of the Business located within the Territory as notified by -

Brambles -

from time to time.

The clause, your Honours, is one that applies where Andar, the operator, being a company, would necessarily be conducting any delivery round by its employees. The clause - and I am speaking about 8.2.2. - appears directed to loss, et cetera, caused to other persons - that is the first point, and by other persons I mean, for example, the damage that trucks do as they go in and out of bays, the damage that they can do to people if they hit them, but speaking, in our submission, about injury to persons other than us or our employees.

The second thing about clause 8.2.2 is that if the position is that Mr Wail, who was the plaintiff, and not Andar, the company, was the cause and was the sole cause in the way in which the majority judgments in Nicol v Allyacht Spars would indicate is the approach there referred to, then, in our submission, one would not be able to say that the loss, et cetera, was caused or contributed to by the conduct by the operator.

McHUGH J: So it is the same point?

MR JACKSON: The same point, and the same feature, your Honour, arises in relation to 8.2.3, because if one looks at the terms of 8.2.3., what one sees is that it would have to be:

occasioned or contributed to by any act, omission, neglect or breach or default of the Operator -

the operator being Andar. So it is essentially the same point, your Honour.

HAYNE J: Well, can you just point me to where, in the Court of Appeal's reasons, this point is dealt with?

MR JACKSON: Yes, your Honour.

HAYNE J: Around, I think, 84, is it not, the application book?

MR JACKSON: Yes, thank you. Your Honour will see it is at the bottom of page 86, and what their Honours say in paragraph 71, your Honours, I will not read it out, but your Honours will see it goes essentially through to the end of paragraph 74 on the next page.

McHUGH J: So it just seems to follow on from their earlier reasoning.

MR JACKSON: Yes.

HAYNE J: Particularly at line 8 and following on 87, dependent on the partly responsible conclusion.

MR JACKSON: Yes.

McHUGH J: We might hear the respondent, Mr Jackson. Yes, Mr Christie. Well, this is plainly a very important point.

MR CHRISTIE: In relation to the contract point, your Honour?

McHUGH J: This question of causation for the one-person company, in effect. I know you say that factually, even if there is not the principle for which Mr Jackson contends, this case is not within it, but does it not seem a case for the grant of special leave?

MR CHRISTIE: If the real nub of the submissions put on behalf of the applicant, which, in my submission, is to be found at paragraph 13 on page 102 of the application book:

Two issues are relevant to this application:

(a) did the Court of Appeal err in finding that Andar breached its duty to Wail to provide a safe system of work - - -

McHUGH J: Yes, I appreciate that, and I had forgotten this question of causation was not raised in Mr Jackson's application. The point he has made this morning was not raised by the draft of this application, but let it be assumed that he was granted leave and his notice of appeal would reflect the change. You have this additional point, do you not?

MR CHRISTIE: Well, it seems to me that it is inextricably bound up in this issue of causation and, in the circumstances, if what my learned friends are saying is that the Court of Appeal got it wrong because they effectively found that Andar did not have a role to play in causing the incident, then that really is not, in my submission, a matter that is proper to be taken up in this Court. That is a matter that the Court of Appeal has dealt with and it involves the application of the facts in this particular case.

McHUGH J: But what you have, in this case, have you not, is that the Court of Appeal applied the dictum of Justice Dawson in Nicol and, at least at first glance, it is contrary to what was said by Chief Justice Mason, Justice Brennan, Justice Toohey and Justice Gaudron, in the same case.

MR CHRISTIE: With respect, your Honour, I do not think that that is really the case, because if I could take you to Nicol and, in particular, the passage that appears - - -

McHUGH J: Justice Dawson's passage is at 624 through to 626, if I remember rightly.

MR CHRISTIE: Yes, but I wanted to take your Honour to the passage on page 618 of the majority judgment of Chief Justice Mason, Justices Toohey and Gaudron, where their Honours say, in the middle of the page:

The cause of the appellant's injuries was the provision of a means of access to the banner which was simply unsafe. That was not solely the fault of the appellant. It was in part his fault in acquiescing in the use of the system and helping to put it into operation.

And then they say:

But it was also very much the fault of those who devised the system.

So, what the majority - - -

McHUGH J: Yes, but the big factual difference between the two cases is, is it not, that in Nicol you had three directors, Mr Nicol, Mr Berg and Mr Gray, whereas here, it is said, in effect, this is a one-man company, apart from Parker, was it?

MR CHRISTIE: Mr Parker, yes.

McHUGH J: He was just a bookkeeper. I have to tell you - well, it is in your favour - I have serious doubts about the correctness of Shedlezki for 30 years, but it may be this Court ought to consider the matter and, after all, the statute, or the common law in the case of a personal duty, imposes the duty on the employer and if an employee, even if it is a one-man company, brings about the breach, arguably the employer is still in breach.

MR CHRISTIE: Yes. In my submission, your Honour, Shedlezki ought to be confined to its own facts and certainly distinguished in this case, because in that case the duty that was said to have been breached was also a duty imposed upon the director personally. It was a statutory duty to guard the machine.

McHUGH J: Yes, but I do not think you can distinguish it, can you? In the case of Shedlezki the employer has a duty imposed on him by statute. In the present case the employer has a personal duty of care imposed on him by the common law. I do not think you can really distinguish the two. I appreciate Justice Dawson thought you could in Nicol, but I am not sure you can. I think they either stand or fall together.

MR CHRISTIE: May I just take your Honour, on that point, to Shedlezki at page 386, which is part of the judgment of Mr Justice Asprey, with whom - - -

HAYNE J: Sorry, which page?

McHUGH J: Page 386.

HAYNE J: Thank you.

MR CHRISTIE: Yes, at the top of the page, where his Honour says:

The only default of the defendant company was committed through the default of the plaintiff himself, and the failure of the defendant company to perform its duty for which it would be vicariously responsible was completely co-extensive with the failure of the plaintiff, who was under a concurrent obligation to perform the same duty. The injured person and the person whose default caused the injury were identical.

So that in Shedlezki the duty that was said to have been breached was truly coextensive, whereas, in the present case, on no analysis could it be said that the duty was truly coextensive - - -

McHUGH J: Yes, but with great respect to Justice Asprey, it is rather a loose use of the expression "concurrent obligation" to say that the plaintiff had a concurrent obligation to perform the same duty. The statute put the duty on the company, not on the plaintiff, so no doubt the plaintiff was carrying out the company's obligation and he owed an obligation to the company, but his obligation was a different obligation to that owed by the company. The company's obligation was owed to the State. His obligation was owed to the company.

MR CHRISTIE: Perhaps I could illustrate it in this way. If your Honour turns back one page to page 385 of the same judgment, just above line F, his Honour says this:

In these circumstances, the decision to fit a guard required for a machine in the company's bakery was the function of management and would not require a formal minuted resolution of the board of directors.

HAYNE J: Again, much turns on how his Honour is using the term "function". No doubt a real live body has to go out and do the fitting.

MR CHRISTIE: But his Honour there is, in my submission, talking about the discrete task of fitting a guard to this particular piece of machinery. In the present case, what the Court of Appeal had before it was essentially the whole system of the delivery of laundry and collection of laundry to and from the various hospitals.

McHUGH J: Yes, but it is put against you that the plaintiff is the person who is responsible for laying down that system and he was injured as a result of the system that he devised and, therefore, it is not distinguishable from Shedlezki.

MR CHRISTIE: Well, I would submit to you, your Honour, that in the circumstances it matters not that the plaintiff was responsible for the implementation of that system because at the end of the day it was held by the jury below that Brambles was negligent in the provision of the trolleys and the mechanism by which they were to be moved in and out of the truck. Once that is the case, then that same obligation falls upon Andar to ensure that that system is safe and implemented correctly and in those circumstances Andar - and it is trite law - cannot delegate that duty to one of its employees, or in this case its director, to perform.

McHUGH J: Mr Christie, you may well succeed in this case, but this is an application to start a proceeding in the High Court. That is what a special leave application is, and Mr Jackson says there is an important point of law, which obviously is a very important point of causation law, and he has an arguable case and therefore special leave ought to be granted. It says nothing about whether the appeal will succeed.

MR CHRISTIE: I understand that, your Honour, and I was merely trying to persuade you that really he does not have a point at all, with the utmost respect to my learned friend. In fact, the decision of the Court of Appeal was consistent with the law in this country, as articulated by Justice Dawson in Nicol and, in my submission, as his Honour Justice Mason, as he then was, in Shedlezki, and your Honour will appreciate that Justice Mason was on the court in Shedlezki.

McHUGH J: Yes, he was in the Court of Appeal.

MR CHRISTIE: Perhaps if I could just take you to one further passage out of Shedlezki out of the judgment of his Honour Justice Mason, as he then was, on page 389. At the foot of the page his Honour says:

Although the defendant company could act only by its servants and agents, there seems to be no justification for concluding as a matter of law that the defendant's breach of duty in the circumstances of this case was not a contributing cause to the injury merely because the responsible servant of the defendant failed to see to the performance of that duty on its behalf, it being the responsibility of the defendant to provide the equipment necessary for the operation of the machine in accordance with the provisions of the statute.

So, in my submission, what his Honour Justice Mason is saying there is entirely consistent with what his Honour Justice Dawson said subsequently, in Nicol, and his Honour the Chief Justice, as he then became in Nicol, in the joint judgment did not say anything that suggested that he had reconsidered his view about that issue.

McHUGH J: And Justice Mason dissented in Shedlezki and his reasoning is certainly very persuasive.

MR CHRISTIE: I do not think I can advance the.....having regard to that comment, your Honour, any further.

McHUGH J: Mr Jackson, what about ground 4 of your notice to appeal and also the omission of any ground on the causal point that you raised this morning in your submissions.

MR JACKSON: In relation to the indemnity, your Honour?

McHUGH J: Yes. Why should you be given leave in respect of ground 4?

MR JACKSON: Could I say in relation to that, your Honours will have seen that the view taken by the Court of Appeal, and I have to say by the trial judge as well, was that by virtue of really very small facts, if I can put it that way, the agreement continued. Your Honours, we would recognise that if that were the only point in the case, then that is one where there being two decisions on it in the courts below, the prospect of obtaining special leave would be much less than 50 per cent, if I can put it that way.

HAYNE J: And we would never get to the point which you opened with, would we, if the Court of Appeal was right?

MR JACKSON: No, your Honour.

HAYNE J: We would get to it, would we?

MR JACKSON: Your Honour, the position is this: if one leaves aside the contract altogether, the issue arises absolutely directly. If one then says - the contractual provisions possibly apply for two reasons: one is, the contract existed and they have the effect contended for by the other side; and the second thing is that on each of those issues they could succeed. If the Court does not deal with the first of them, whether the contract continued, one assumes the contract did and so the 8.2.3 construction issue arises. In relation to that issue, the latter issue, the construction question, your Honour, we do need, I think, to amend the notice of appeal and I would seek leave in that regard. As to the continuance of paragraph 4, it is one of some importance, as your Honours will have seen from the relative paucity of authorities referred to in Australia by the Court of Appeal. I am putting that slightly badly, but your Honours will appreciate what I mean.

We would seek, your Honours, at the worst, as it were, to be allowed to seek special leave on that point at the hearing and it is an issue which the Court may wish to hear then, but we would seek to deal with it, in any event, your Honours; it is really a short point and one of some importance.

McHUGH J: It may not be too short because it may require an examination of the United States authorities to some length.

MR JACKSON: Well, your Honour, there is short and short, of course - your Honour, everything is short in the Court. But it is an issue that does not involve more than a couple of hours at the most, in our submission.

McHUGH J: A couple of hours means a lot to the High Court these days, Mr Jackson, given our list.

MR JACKSON: We would seek to maintain that ground and it is an important issue on the way to the resolution of the other issues. If not, we would seek leave to be able to raise it to obtain special leave at the hearing, but in any event, your Honour, we would seek leave to amend the notice of appeal to deal with the indemnity issue.

McHUGH J: There will be a grant of leave generally in this case, subject to your undertaking, Mr Jackson, to add a ground dealing with the causal point of 8.2.2 and 8.2.3.

MR JACKSON: Thank you, your Honour.

AT 9.57 AM THE MATTER WAS CONCLUDED