Newcastle City Council v Alexander [2004] HCATrans 220 (18 June 2004)

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Newcastle City Council v Alexander [2004] HCATrans 220 (18 June 2004)

Last Updated: 29 June 2004

[2004] HCATrans 220

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S466 of 2003

B e t w e e n -

NEWCASTLE CITY COUNCIL

Applicant

and

CLYDE ALEXANDER

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 JUNE 2004, AT 11.14 AM

Copyright in the High Court of Australia

MR S.G. CAMPBELL, SC: May it please the Court, I appear for the applicant. (instructed by Hunt & Hunt)

MR G.R. PETTY, SC: May it please the Court, I appear with MR P.J KIRBY, for the respondent. (instructed by Bale Boshev & Associates)

GUMMOW J: Now, is an extension of time required in this matter?

MR CAMPBELL: Yes, your Honour. An application in that regard has been made as contained in the application book. It is supported by the affidavit of my instructing solicitor, Mr Mark Malley.

GUMMOW J: We think you should proceed directly to the merits of the application for special leave.

MR CAMPBELL: Thank you, your Honour.

KIRBY J: I take it the application for extension of time is not opposed, is it?

MR CAMPBELL: No, your Honours.

GUMMOW J: You have that extension.

MR CAMPBELL: Your Honours, it is fundamental to our application that the case at first instance was an extremely clear one, and it was one which we respectfully submit, that by application of the principles established by the Court in Ghantous, as subsequently elucidated in the New South Wales Court of Appeal, could only have led to one result and that is to say a verdict in favour of the defendant.

GUMMOW J: Now, you were refused leave in the Court of Appeal at least partly because Justice Sheller was not persuaded that the counsel had squarely put before the District Court Judge the principle in Ghantous.

MR CAMPBELL: Yes, your Honour. There are two answers to that, with respect. The first is that it was put, at least in a shorthand way, but we say sufficiently, in a busy trial court, and - - -

KIRBY J: You say that, but, you know, if you are wanting to come up here, you really have to put it up and get findings and have the matter determined. It is really an unsatisfactory vehicle if you come up here and it has been done sub silentio, which is what you suggest happened.

GUMMOW J: This was a judgment for $31,000, was it not?

MR CAMPBELL: Indeed, your Honour, indeed. We acknowledge the difficulties in that regard and we acknowledge in a general way that the Court of Appeal is a busy court and has to have the gateway of leave to cope with its list, but in a clear case we say, like this - - -

GUMMOW J: What you want to persuade us is that they misunderstood the discharges of their duties as custody of the gate.

MR CAMPBELL: Indeed, your Honour, I accept that. That is clear, we submit, from what Justice Sheller said early in his judgment in relation to a refusal, that his Honour clearly, we submit, understood at application book 24 at lines 40 to 50, that the relevant principle had not been applied, and that her Honour had misdirected herself by looking at it from the point of view of principles of law applicable to occupier’s liability rather than the principle of law stated by this Court in Ghantous.

To answer the question that your Honour Justice Gummow asked me directly about whether it was sufficiently raised at first instance, could I ask your Honours to have reference to my learned friend’s bundle of documents and legislation. Your Honours will see, with respect, that the annexure A to Mr Schipp’s affidavit is an agreed transcript of the addresses below. If your Honours would look at page 6 of that document, your Honours will see that as we advanced in our summary of argument, counsel appearing at the trial raised, we submit with respect, the matters which should have alerted her Honour to the nature of the case.

We have advanced that argument at application book 40 from about line 45, but if your Honours would look at page 6 of the argument, the second paragraph, your Honours will see in the paragraph mentioned:

So your Honour has to be satisfied –

a reference was put –

the current thinking of the Court of Appeal and the law stands now after Brody’s Case -

identifiable as a reference to the decision in both cases of Brody and Ghantous we would submit, your Honours, and then towards the bottom of the page after the reference to “W CHIPCHASE”, the penultimate reference to him, counsel said:

It appears that he did sweep it daily, your Honour. But first of all, it’s the duty-of-care, and the extent of the duty-of-care –

So that, we submit, your Honours, that those factors clearly raised for her Honour’s consideration, the matters which the court determined governed pedestrian cases in Ghantous at paragraph 163.

Now, your Honours, the Court of Appeal, with respect, was satisfied that her Honour applied the wrong principle, we submit, correctly satisfied that her Honour had applied the wrong principle. It was not a case where, in a small case, error had arguably occurred at first instance. It was a clear case where the law had simply not been applied at first instance. That is the first answer to Justice Gummow’s question.

The second answer to your Honour’s question is that in any event, it being a pure question of law, it was the type of thing which fell within the well-known exceptions to cases like Suttor v Gundowda, and it was the sort of case where the Court of Appeal – we accept this is also discretionary – may have found it expedient to correct a clear error of law.

Your Honours, the principle for which we contend is simply this, that as an aspect of the rule of law, cases at first instance, large and small, need to be decided consistently, and that the Court of Appeal with respect, has a very important - - -

GUMMOW J: Well, that task falls – superintendence of that task falls to the New South Wales Court of Appeal in New South Wales.

MR CAMPBELL: In the first place, your Honour, yes.

GUMMOW J: And the legislature, in its wisdom, attached a requirement of leave to it.

MR CAMPBELL: Yes, your Honour. The question that arises here is how that requirement of leave is to be applied and satisfied in cases. It is a matter, your Honours, even accepting it must be a flexible test, in a clear case like this we say the requirements of justice demand that leave be granted, even if on terms, and that the error be - - -

KIRBY J: “Demand” is a very strong word. I mean, so far as the principles are concerned, we have stated them in Ghantous, and so far as the particular case is concerned, the suggestion that was accepted in the Court of Appeal was that you did not, as it were, press the point to the point of having findings which could tender an issue, and, therefore, neither as a matter of general principle nor in the particular case is there really a reason for us to disturb. We would not disturb the exercise of the leave discretion if there was a proper basis on which that leave was decided. Just imagine
how many cases we would have if we had to intervene in all those sorts of matters.

MR CAMPBELL: We would not wish that upon your Honours or upon the Court, but this is a - - -

KIRBY J: I can understand you feel aggrieved, your client feels aggrieved that the Court laid down Ghantous and the trial judge did not really apply it, and I understand that, and I have understanding for the way you say this is a miscarriage, but we have to look at our discretionary power in respect of special leave, and we have to therefore look at whether there is an important error of principle that is setting the law on the wrong track? No, Ghantous fixes it. Whether there is a miscarriage of the discretion? No because this is not really a case where it was put up in the right way so the lesson is clear. If you are going to take these points in this Court, you really have to lay the ground at trial, I am afraid.

MR CAMPBELL: Your Honour, I cannot say anything further than that I have taken your Honours to the passage where we say the ground was flagged and clearly flagged to her Honour.

KIRBY J: You very properly concede that it was done in a sort of sub silentio way. I think you used another Latin expression to confuse me.

MR CAMPBELL: I may have confused myself, your Honour. I think it was said breve manu, which I think means shorthand.

KIRBY J: Yes, indeed, very breve.

MR CAMPBELL: May it please the Court.

GUMMOW J: We do not need to call on you, Mr Petty.

It is properly acknowledged by the applicant that weight must be given by this Court as by the Court of Appeal to the introduction of a statutory requirement of leave by the New South Wales Court of Appeal in a case such as the present which was tried in the New South Wales District Court.

A significant consideration affecting the denial of leave by the Court of Appeal was the apparent omission of the applicant to press at the trial for findings on the evidence having regard to the Court’s decision in Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512. That was a correct and relevant consideration.

The principle in Ghantous has been made clear by this Court. No error is shown in the exercise by the Court of Appeal of its leave discretion. We do not consider that any other reason exists for a grant of special leave. Accordingly, whilst time is extended, the application for special leave is refused with costs.

MR CAMPBELL: May it please the Court.

GUMMOW J: Thank you, gentlemen.

AT 11.25 AM THE MATTER WAS CONCLUDED