Mulligan v Coffs Harbour City Council & Ors; Vairy v Wyong Shire Council [2004] HCATrans 494 (30 November 2004)

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Mulligan v Coffs Harbour City Council & Ors; Vairy v Wyong Shire Council [2004] HCATrans 494 (30 November 2004)

Last Updated: 18 January 2005

[2004] HCATrans 494

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S314 of 2004

B e t w e e n -

GARRY SEAN MULLIGAN

Applicant

and

COFFS HARBOUR CITY COUNCIL

First Respondent

STATE OF NEW SOUTH WALES

Second Respondent

COFFS HARBOUR JETTY FORESHORE RESERVE TRUST

Third Respondent

MR WAL HAMBLEY

Fourth Respondent

Office of the Registry
Sydney No S308 of 2004

B e t w e e n -

ERNEST VAIRY

Applicant

and

WYONG SHIRE COUNCIL

Respondent

Applications for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 NOVEMBER 2004, AT 9.33 AM

Copyright in the High Court of Australia

__________________

MR G. O’L. REYNOLDS, SC: May it please the Court, I appear for the applicant in the Mulligan matter, with my learned friend, MR R.J.M. FOORD. (instructed by Martin Bell & Co)

MR M.T. McCULLOCH, SC: If the Court pleases, I appear for the first respondent in the Mulligan matter, with my learned friend, MR D.F. VILLA. (instructed by Phillips Fox)

MR J.E. MACONACHIE, QC: I appear, your Honours, for the second to fourth respondents in the Mulligan matter with MR B.M. GREEN. (instructed by Crown Solicitor’s Office New South Wales)

MR P.C.B. SEMMLER, QC: May it please the Court, I appear with MR L.T. GREY for the applicant in the Vairy matter. (instructed by Carroll & O’Dea)

MR I.G. HARRISON, SC: If your Honours please, I appear with my learned friend, MR D.F. VILLA, for the respondent in the Vairy matter. (instructed by Minter Ellison)

GLEESON CJ: Mr Reynolds, we will hear argument in this case and then we will go on and hear argument in the next case before we give a decision in this case.

MR REYNOLDS: If your Honour pleases.

GLEESON CJ: Yes, Mr Reynolds.

MR REYNOLDS: Your Honours, the picture that I would like to focus on in my submissions this morning is the Court of Appeal’s treatment of the issue of obviousness and there are four particular aspects of it that I would like to dwell on. The first and perhaps the principal issue is whether it is appropriate to have a definition of “obviousness” and in particular whether the definition of “obviousness” adopted by the Court of Appeal is the correct one. Your Honours will have seen from our written submissions, that we extract, or we purport to extract, the definition at page 329 at about line 40. I will come back to the terms of that definition in a moment but before I do can I emphasise three things relating to previous decisions of this Court and of the New South Wales Court of Appeal.

The first thing, very obviously, we submit that the previous decisions do not adopt a particular definition of “obviousness”. Second of all, the various judgments place emphasis upon a very full examination of all of the circumstances – there is one judgment of your Honour the Chief Justice which emphasises that. Third of all, the issue of obviousness is said to raise issues of degree. In this particular case, as your Honours see from page 329, the Court has lifted from the American Restatement a definition of the concept of obviousness, so our first point is whether it is appropriate to have a definition, if you like, in the style of a statute which specifies in a definitive way whether or not the risk is obvious.

The second point that I would like to raise is that, inevitably, if one has a definition like that which appears at page 329, the Court is involved in giving glosses or definitions to the concepts that are themselves using that particular definition. Your Honours will have seen from our submissions that we dwell on certain glosses or definitions of words in that definition. For example, the word “condition” is defined by the Court of Appeal as the factual scenario facing the plaintiff. That, itself, involves issues of how one defines the factual scenario. We would say, for example, that the condition that is referred to in that definition, or should be referred to in that definition, is the particular physical hazard which caused the injury. If one takes that as the definition of “condition”, the particular physical hazard would be the bed form and on no view, we submit, was that apparent to the plaintiff in this case.

Another issue your Honours will have seen from our submissions is the question of the appropriate level of abstraction which is adopted to define the risk. Your Honours will have noticed that Justice Tobias differed from both trial judges on the appropriate level of abstraction. That really raises the question of what is the appropriate level of abstraction and the question of whether either the trial judges, on the one hand, or the Court of Appeal, on the other, are correct in their adoption of a particular level of abstraction. Another issue is what degree of possibility is involved in risk. Is any degree of possibility sufficient for a risk to be obvious or is the degree of possibility, itself, relevant to the negligence calculus.

HAYNE J: But how does this analysis, which I understand you want to emphasise, fit with the essential case made at trial? Was the essential case at trial a case of failure to warn?

MR REYNOLDS: Yes, your Honour.

HAYNE J: So a Nagle Case.

MR REYNOLDS: Definitely, and that is one of the issues which we have tried to stress is that if one looks at the definition which is adopted here of “obviousness” in the treatment of the Court of Appeal it is inevitable, not only that Nagle would have been decided in favour of the defendant, but other decisions, for example, a decision to which your Honour the Chief Justice was a party before Nagle was decided, a case called In The Estate of Saroukas that your Honour may remember involving - - -

GLEESON CJ: Diving on the wrong side of a fence.

MR REYNOLDS: Indeed, at Gunnamatta Bay down south. This definition, we say, is pivotal because it involves a yes or no answer to the question of whether the risk is obvious.

GLEESON CJ: Mr Reynolds, you have directed your attack to the reasoning of the Court of Appeal. What do you say is the error made by the trial judge in this case?

MR REYNOLDS: Your Honour is quite correct. We have not directed our attention to the specific errors in our submissions in which we identified down in the Court of Appeal in relation to the trial judge’s reasoning. Importantly, the Court of Appeal have not focused on the specific submissions which we made and if I may be frank, my recollection is very scanty on the precise submissions which I made in the Court of Appeal, but there were a great many of them trying to isolate specific errors in the treatment made by the trial judge. I simply do not recall the detail of the argument that I presented.

GLEESON CJ: Well, the fundamental difficulty that you would face if you were given special leave, I suppose, would be that there are concurrent findings against you on the issue of reasonableness.

MR REYNOLDS: That is so. Can I say a couple of things about that. One is, as I have just said, the treatment of the issue of reasonableness by, on the one hand, the trial judge and, on the other hand, the Court of Appeal on reasonableness are entirely different. That is the first thing, so that it is not the usual situation where the trial judge and the Court of Appeal, in effect, come to the same conclusions for pretty much the same reasons.

The second point we would make is that, as your Honours appreciate, even if there are concurrent findings of fact, if there are important questions in law that are raised, then this Court will entertain an appeal notwithstanding that there are concurrent findings of fact. Justice Deane emphasised that, for example, in Louth v Diprose. Here, we have said, in our written submissions, that there are quite a large number of legal issues that arise and the principal issue which arises is this definition of “obviousness”.

HAYNE J: If that is right, and I understand the way you put it, does that spill over then into, putting it bluntly, putting Nagle on the table; that is, if obviousness is the point at which you wish to attack the Court of Appeal, does that mean that the Court is inevitably then going to be tipped over into reconsidering the way in which Nagle is reasoned?

MR REYNOLDS: Your Honour, in one sense, as your Honour appreciates, that will be a matter for my friends. I will be standing up and reminding your Honours that there is an authority of this Court, namely Nagle - - -

GLEESON CJ: Which seems to have been followed almost to the letter by the trial judge.

MR REYNOLDS: Your Honour, we would, with respect, say that there are various aspects of the trial judge’s judgment which will warrant examination. As I have said before, I am not in a position to recall precisely what submissions were made to the Court of Appeal on that question. What I have been focusing on is the importance of the Court of Appeal’s judgment, in particular, given that this issue of obviousness arises not only in failure to warn cases but any situation where the defendant is said to have to protect a plaintiff from a particular risk.

GLEESON CJ: This is perhaps a problem, and I am not suggesting that it was inexpedient for the Court of Appeal to deal with both of these cases together, I am not suggesting that for a moment, but a possible disadvantage of doing that is that you then get reasoning in the two cases together which, if I can put it this way, would not have been necessary perhaps in relation to one case but was necessary in relation to another.

MR REYNOLDS: Could I say this about that, your Honours.
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GLEESON CJ: If I put it another way, the Court of Appeal had a factual finding in favour of the defendants at first instance in your case, but a factual finding in favour of the plaintiff in the second case and some of the reasoning of the Court of Appeal might have been more directed towards displacing the second finding than upholding the first.

MR REYNOLDS: Your Honour may be quietly creeping up on the proposition that perhaps leave might be granted in the Vairy Case but not to my client in this case. On that issue I would submit that given the difficulties, we submit, in the Court of Appeal’s reasoning in both cases, it would be inappropriate to grant leave in one and not in the other, otherwise that would raise the spectre, if your Honours overruled, for example, in Vairy, what the Court of Appeal have said about obviousness and other issues, then my client, I submit, would have a legitimate sense of grievance that he too may have succeeded in this Court if he had been able to argue his appeal without being impeded by these principles as articulated by the Court of Appeal.

GLEESON CJ: I think that is an important consideration.

MR REYNOLDS: Your Honours, another aspect – there are only a couple more that I wish to dwell on – is the issue of whether or not this definition should be subject to any qualifications. Your Honours will have seen that we extracted the relevant section from the American Restatement at page 331. It will not have escaped your Honours that if one goes to the ultimate provenance of this definition of “obviousness”, that there are at least a couple of significant qualifications mentioned in the Restatement which we suggest are a matter which should be explored by the Court, principally the proposition that even if the risk is obvious, the defendant may be liable if he should have anticipated the harm, that is despite the obviousness of the risk.

In particular, and finally, if I can take your Honours briefly to the Nagle Case, which I understand photostats of it have been given to your Honours by Mr Semmler’s client in the other matter, if your Honours go to the Nagle decision in 177 CLR, in particular at page 431, your Honours will see there at about point 3 that the four Justices say:

Moreover and more importantly, there was the possibility that persons intending to swim in the Basin might dive into the water without ascertaining whether it was safe to do so. It is now well established that a person who owes a duty of care to others must take account of the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety.

In this case, if your Honours go to page 273, paragraph 212, Justice Tobias refers to this idea and to the notion of “inadvertence” and says that:

No question of inadvertence arose in either of the present cases. Inadvertence is different to the failure of a person to take reasonable care for his or her own safety.

Your Honours will have seen from our submissions that we submit that that is a false dichotomy between inadvertence on the one hand and a failure to take reasonable care on the other. The effect of this is that one of the principal qualifications on the issue of obviousness, that is the proposition that account must be taken of a possibility that a plaintiff will not exercise reasonable care for his own safety has, in effect, been completely left out of account by the Court of Appeal and that, we submit, must be taken in conjunction with the proposition that there has not been any exploration of the qualifications in the American Restatement which your Honours will have seen from our submissions. One of our gripes is that this definition was at no stage raised by the respondents in argument and was never raised by the court.

GLEESON CJ: Just before you leave Nagle, what was the warning sign that they said should have been put up?

MR REYNOLDS: Prohibition.

GLEESON CJ: Do not dive.

MR REYNOLDS: Do not dive.

HAYNE J: And is that then a prohibition that should appear at every place of resort for swimming, without exception?

MR REYNOLDS: It all depends, your Honour.

HAYNE J: On what?

MR REYNOLDS: On the precise situation and the degree of control the defendants have, for example. In this particular case there is one aspect of the circumstances that I would like to stress seeing as your Honour raises that and that is, this creek, for the most part, was very, very shallow. There is one section of it which is a channel which is very deep and, as your Honours will have noticed, the plaintiff, despite trying half a dozen times, was not able to touch the bottom when he hopped into the channel and floated down all the way to the sea. He was not able to touch the bottom with his feet.

We would describe this particular channel as being like a ride, it is a fast flowing current to which people would naturally be attracted, particularly children. This was a swimming area for children and families, as the Court of Appeal notes, and where one has this, we submit, highly unusual danger located in that channel where others in the vicinity are accustomed to dive into it in the same way as the plaintiff did, we submit that those are very important matters which relate to the likelihood that the plaintiff might, on a particular case, fail to take reasonable care for his own safety. If your Honours please, those are my submissions.

GLEESON CJ: Thank you, Mr Reynolds. Yes, Mr McCulloch. I assume you and Mr Maconachie have agreed on a division of time.

MR McCULLOCH: Your Honour, I will be very brief.

HAYNE J: You now have, is that what you are saying, Mr McCulloch?

MR McCULLOCH: Little focus has been paid to the findings of the trial judge, your Honour, and it is important to have regard to the fact that this was a trial which lasted some 25 sitting days and took three days in the Court of Appeal primarily dealing with the question of breach. There was a residual issue of duty that was raised by my client in relation to whether it had a duty to people who approach the bank, as the plaintiff did, from the southern side. However, the learned trial judge made a number of findings of fact which are recorded in his judgment at paragraph 286 at application book 135 to 136. There are a number of points at which the trial judge dealt with breach but perhaps the most convenient collection of them appears in the judgment at paragraph 301 and following.

GLEESON CJ: Mr McCulloch, a lot of these cases talk about diving as though it is all the one thing.

MR McCULLOCH: Yes.

GLEESON CJ: Diving might mean going head first from a high platform into water a long way below or it might mean standing in water up to your waist and flinging yourself forward head first. What was the form of diving that was involved in this case?

MR McCULLOCH: The form of diving, your Honour, at the location where the accident occurred involved walking into the water, stepping down a significant difference to about thigh depth – I think the plaintiff was about six feet, or about 180-odd centimetres in metric, and then diving forward with his arms outstretched.

GLEESON CJ: You mean just getting himself wet by putting his head in first?

MR McCULLOCH: He described the dive as a launch, your Honour, but also described it as a shallow-type dive.

GLEESON CJ: I suppose there are some people who enter water inch by inch, getting wetter and wetter and colder and colder, but most people fling themselves into it at some stage. Is that what is meant by diving?

MR McCULLOCH: That was the tenor of the plaintiff’s evidence, that he had launched himself and that when he hit the water he pulled his arms backwards so as to project himself further into the water whilst underwater and the whole of his body became submerged in the process.

GLEESON CJ: That is a rather different kind of diving from the diving involved in the second case, is it not?

MR McCULLOCH: That is quite so, your Honour, and that is what, in particular, distinguishes this case from Vairy because the trial judge made a number of - - -

HAYNE J: So what is the sign meant to say?

MR McCULLOCH: That is the point I am about to approach, your Honour, by reference to the trial judge’s finding. The trial judge found that the plaintiff, Mulligan, knew that the water was of variable depth because he had been to a location earlier on that day, a matter of many minutes before, in which he had not dived because he recognised that, in his view, it was not safe to dive. He had been running around the area splashing and frolicking with his girlfriend. He then decided to move down to this area because he had seen people swimming properly, as he described it in his evidence and as the trial judge records it in his findings of fact.

He admitted, when he was cross-examined, that – and this appears in the judgment of the trial judge at paragraph 293 which is to be found in application book 129 to 130:

He did not know whether the water was “four feet or fourteen feet deep” –

at the time he took the fateful dive but he did not it was variable. He also knew that the conditions changed and he knew it was an area which was not set aside for swimming because it had been his first intention to go to the beach to swim and when he observed what was there for him to see by way of a rough surf, he determined to resort to the creek.

The trial judge also found that in relation to this creek the variability of the depth of water changed as a matter of common experience that might be found at any beach or river and, in this respect, a similar finding was made by his Honour, Chief Justice Spigelman in Swain’s Case in respect of which your Honours are currently reserved. His Honour the Chief Justice said in that case, it is a matter that everyone who goes to a beach knows that the water at the beach varies and so too did the trial judge in this case find that it was common experience, or common knowledge, that the water of a creek would be expected to be variable, particularly so when the water is observed to be moving rapidly and the pleasure is obtained by diving in and being taken along by the creek towards the beach.

The trial judge at application book 136 in his judgment at paragraph 303 demonstrated – and this is the answer finally to your Honour Justice Hayne’s question – why a warning sign was not required. The trial judge found that it was a “naturally occurring phenomenon” - - -

HAYNE J: What line?

MR McCULLOCH: Your Honour, at 135, line 45:

The matter requiring a warning, according to the plaintiff’s case, related to the presence of variable depth due to the formation of naturally occurring sand dunes in the creek bed. This was a naturally occurring phenomenon in the truest sense of the word . . . Ordinary competent swimmers know and can immediately sense that there is a variability in creek beds because of the presence of sand dunes underneath their feet as they enter the creek waters. They will know that variability is not uniform because of the varying nature of the sand dunes.

HAYNE J: How does that sit with Nagle in the joint reasons at 431?

MR McCULLOCH: Your Honour, may I answer it by referring your Honours at application 136, line 23, to this sentence:

It is difficult to see, short of a complete prohibition on swimming and diving in a creek, how a warning in a case such as the present could effectively be displayed.

The case that was run by the plaintiff was for a warning. To have run a case that diving should have been prohibited and the prohibition enforced, your Honour, would have been, with great respect, an impossible situation in areas – there are miles and miles, or kilometres and kilometres, of creeks all around the State and all around Australia.

GLEESON CJ: In Nagle, would the prohibition on diving have amounted in practice to a prohibition on swimming?

MR McCULLOCH: It depends, your Honour, on the form of sign that is used. Some of the signs in the Australian standard depict a person in the act of diving, that is with their hands forward and approaching water at an angle with a red circle with a red line through it. That would be a prohibition on diving according to the standard. There are different prohibitions that relate to swimming, and this is in the Australian standard, where the swimmer is depicted with a red line through the swimmer and so, your Honour, they would be different signs.

The other important matter to answer, in part, your Honour Justice Hayne’s question is, in the trial judge’s finding at paragraph 304 on application book 136:

the magnitude of the risk...was not at a high level –

because there was “no evidence” of any injury at this creek at all from diving and it was quite plain on other evidence, and this is recorded as a factual finding at line 45 on the same page, that there was a “safe swimming area” which was on the northern side of the creek adjacent to the reserve for which the Council was the trustee, which had been “at least a wading area for nearly 30 years”.

HAYNE J: But again, that is, it seems to me, at its root, putting in issue Wyong Shire Council v Shirt because a sign, what $100, injury catastrophic, risk not far fetched or fanciful. I am not saying that the argument is wrong but it is important, I think, to understand the breadth of issues that seem to be being agitated by a narrow attack on obviousness and an answer that is made of the kind you make. It seems to me to be very broad.

MR McCULLOCH: Your Honour, there is no attack relevantly made by the trial judge or the Court of Appeal on the Shirt calculus. Both - - -

HAYNE J: Nor can there be.

MR McCULLOCH: Quite so.

HAYNE J: But if leave goes, it seems to me that the arguments are ones which seem to touch these questions.

MR McCULLOCH: Your Honour, no, with respect, because relevantly to Mr Mulligan’s case, that factual finding by his Honour is at the very lowest level. His Honour appears, from his judgment, to have placed far more emphasis on the other matters that I have taken the Court to and on the fact that, in this case, it was the plaintiff who had the best means of knowledge because he was the person who in a dynamic way was experiencing what this creek was doing from one location to another and at the location that he executed his dives.

GLEESON CJ: Did the trial judge deal with the question of what other things you would have to warn people about if you set about warning them of every hazard? I presume one of the principal hazards associated with this activity is drowning.

MR McCULLOCH: I am going to have to answer your Honour’s question from my recollection if I may as no because the way this arose was that the plaintiff was shown a sign in his evidence in-chief in the usual way and asked what he would have done in response to it and that sign, which is recorded at application book 47, had these words – and this is the way the plaintiff’s case was run, not as a prohibition case:

“Danger
Variable Depths
No Diving
No Jumping”

So, your Honours, the trial judge did not investigate whether there would have been other risks that needed to be warned against but your Honour, it would be quite apparent that in any creek, for example, it may flood from
time to time, particularly in the Coffs Harbour area. Your Honour, there may be other risks from flooding debris, other matters and - - -

GLEESON CJ: But as Justice Hayne pointed out, if all there is to the Wyong v Shirt calculus is taking a risk that is not far fetched or fanciful and comparing or taking into account the cost of erecting a warning sign which would usually be $100 or so, the Wyong calculus seems to produce inevitably one consequence unless you bear in mind all the things that you would have to warn people about if you start to warn them about anything.

MR McCULLOCH: In my submission, your Honour, the Shirt calculus does not involve such an examination because there are very many factors to be taken into account and one of them, with great respect, would be whether a defendant acting reasonably, in my client’s case a Council who was a trustee of the reserve to the north and who was the local government controller, as it were, for the area and who had an interest in the recreation around the area, would be required to anticipate that people might act in the way in which this plaintiff did, particularly when the creek was adjacent to a swimming beach which would have designated areas for swimming and where, on the facts of this case, the plaintiff admitted that he was aware this area was not set aside for swimming. So, your Honour, in respect of the duty owed to this particular plaintiff, all of those matters were relevant and the trial judge clearly took them into account in the way in which he approached the Shirt calculus.

GLEESON CJ: Is there some kind of video depiction of this locality and people swimming in it?

MR McCULLOCH: No. There are some photographs, your Honour, which were tendered at the hearing. Those are my submissions to the Court.

GLEESON CJ: Thank you. Yes, Mr Maconachie.

MR MACONACHIE: I will be even briefer than Mr McCulloch despite his insinuation, your Honour. Justice Hayne, a few minutes ago, in discussion with Mr Reynolds with respect to prohibition, engaged in this dialogue: Mr Reynolds said, “Well it all depends”. Justice Hayne said, “On what?” Mr Reynolds said, “On all of the circumstances’. Well, that is what this case is about. It was determined on its own facts. At paragraph 301 of the trial judge’s judgment, which I will ask Mr Green to give me the reference to, I am looking at the appeal book from the Court of Appeal, paragraph 301, which is at 135, Justice Whealy said:

As Hayne J said in Romeo at 488 – “What is reasonable must be judged in the light of all the circumstances”. Ultimately, I am driven by the circumstances in this case to the conclusion that there was no breach of duty by any of the defendants.

He then lists a large number of considerations, and that is immediately after he had reminded himself – see the top of that page – that he had to have in mind the considerations spoken of by Justice Mason, as he then was, in Shirt, and that, we respectfully submit, is the beginning and the end of this case. Considerations of Nagle should not even begin to bother your Honours. Why? Because courts correct orders, not reasons for judgment.

GLEESON CJ: I guess the argument against you, which you might need to deal with on this application, is this. At first sight you start off in a very powerful position. You have concurrent findings on an issue that is usually described as an issue of fact, that is to say reasonableness.

MR MACONACHIE: Yes.

GLEESON CJ: But because the Court of Appeal dealt with this case and Vairy together, the analysis adopted by the Court of Appeal in dealing with that issue perhaps went further than it might have had to go in order to deal with your case alone and so we do not find, in the reasoning of the Court of Appeal, an analysis of the reasonableness issue on exactly the same ground rules as those that were adopted by the primary judge.

MR MACONACHIE: Indeed, but be that as it may, in the event that leave was granted and questions of reasonableness were examined in the same way as the trial judge examined them, two things would flow from that. First, the overwhelming probability is that the Court would come to the conclusion that the order of the trial judge was right and, secondly, it would involve the Court in an examination of factual issues that the trial extended over a week to a week and a half, in terms of expert evidence about.....numbers and Einstein’s theory about how creeks operate and the like. But at the end of the day, even if your Honour the Chief Justice is right, the conclusion is almost certain to be that the order of the trial judge would stand.

Nagle is relevant to this case at a level of principle only because it deals with the duty question. The facts of this case overwhelmingly favour the order that was pronounced by the trial judge and nothing has been said, with respect, to indicate that there is any likelihood of that being overturned. The Vairy Case might or might not be different but the facts of this case, as Mr Reynolds himself essentially conceded, determined the outcome of Mr Mulligan’s litigation and this Court should not concern itself with looking at the facts of this case a third time. They are our submissions.

GLEESON CJ: Thank you, Mr Maconachie. Yes, Mr Reynolds.

MR REYNOLDS: Your Honours, it was said by my friends that there was no doubt about the trial judge’s decision. While I have been sitting here I have dredged up some recollection of the way the argument was put in the Court of Appeal. If one looks to the Shirt factors that your Honour Justice Hayne raised with my friends, on magnitude of risk we submitted there was a clear error in the trial judge’s characterisation of the risk as low. May I add that Justice Whealy - - -

HAYNE J: Is not the difficulty with the application of the so-called Shirt calculus in this case that which emerges from Romeo, namely, do not confine your attention to this point and this particular danger but signpost the whole of the area that the Council has under its control against all of the dangers that people may be exposed to. That is the cost.

MR REYNOLDS: Your Honours, that is one of the other issues that was agitated before Justice Whealy. On the question of conflicting responsibilities of an economic or an environmental kind, there was a very hot contest in the Court of Appeal on this issue. To some extent discussion was diverted into the fresh evidence which we led in the Court of Appeal, which is not even mentioned in the Court of Appeal’s judgment, which is that half a dozen signs of the kind that we say should have been erected were erected at various points which we submitted went to the practicability of erecting these signs and as to whether there was any conflicting economic responsibility or any environmental responsibility that conflicted, we also complained about Justice Whealy’s treatment of the evidential onus on those particular issues.

GLEESON CJ: There is also a fundamental question of reasonableness. I have never been into a dwelling house in which there is erected at the front door or the front gate a sign warning entrants of all the risks they might encounter if they do not take reasonable care for their own safety.

MR REYNOLDS: Quite.

GLEESON CJ: And such a sign would not be expensive.

MR REYNOLDS: Again, your Honours, it would depend on exactly how many risks we are talking about. One of the difficulties may be that there may be an extremely large number and, again, one would have to quantify the possibility of the risks in a particular situation. Your Honour Justice Hayne has raised the question of whether or not this case does throw any doubt on the Shirt calculus. Can I say two things about that. One is that Nagle’s Case, which we say has effectively been overthrown by this
decision, was itself based on Shirt and that is an indicator that the Shirt calculus has been undermined.

May I finish by taking your Honours to page 271 of the application book where your Honours will see, at about line 25, the Court of Appeal talk about whether or not the plaintiff’s failure to detect the hazard on six previous dives and the fact that other people were diving safely in the same vicinity, his Honour says that those matters “did not neutralise or otherwise detract from the obvious risk”. I would submit that is in conflict with the decision in Shirt because these issues, which go to the likelihood of the plaintiff not exercising reasonable care, are not being balanced out but rather, the only inquiry is whether those factors neutralise obviousness on its own rather than putting these factors into the basket of factors that must be balanced out as part of the Shirt equation. If your Honours please, those are my submissions.

GLEESON CJ: Thank you, Mr Reynolds. Yes, Mr Semmler.

MR SEMMLER: Your Honours, it is our submission that a number of matters of general importance are raised by this appeal. First of all, to what extent and in what circumstances is it incumbent upon those who owe a duty of care to others to take account of the possibility of negligence by those to whom the duty is owed? Secondly, how should lower courts reconcile that requirement, which was said in the Nagle Case to be a matter that was well established, with the other principle that has been enunciated by this Court in respect of cases involving control over or the occupation of land that the person who owes the duty is entitled generally to assume that entrants will exercise reasonable care for their own safety?

The third matter raised is that referred to by my learned friend Mr Reynolds, the question of how obviousness in the context of the failure to warn of a risk should be assessed, what factors legitimately diminish the obviousness of a risk? The antecedent question, we say, is raised as to how the relevant risk itself should be defined. Can the obviousness of a risk be so great that it is actually determinative in the sense used in the American authorities, the open and obvious doctrine, actually determinative of the liability issue and not simply one of the various circumstances which needs to be taken into account?

Your Honours, those are the reasons in general why we say that matters of general importance are raised. So far as the errors of the Court of Appeal in relation to the Vairy decision are concerned, we would say this. The Court of Appeal erred in determining on the facts of this case that the risk was obvious. Second, even if it was obvious, they erred in deciding that that foreclosed the issue of liability rather than adopting the approach which was taken in the case of Woods, in the case of Romeo, that the obviousness is simply one factor to be taken into account.

The Court of Appeal on the question of obviousness took the view that the risk in this case was obvious for two reasons: first of all, because Mr Vairy did not know the precise depth of the water in the sense that he did not know how many metres it was; and secondly and most importantly, the Court of Appeal decided that he did know that the depth was variable on the ocean bed adjacent to the rock platform from which he dived.

GLEESON CJ: What kind of dive did Mr Vairy engage in?

MR SEMMLER: A head-first dive but a relatively shallow one, your Honour.

GLEESON CJ: Were his feet above the water level?

MR SEMMLER: Forty five degrees or so. Yes, his feet were above the water level.

GLEESON CJ: He was standing out of the water when he dived?

MR SEMMLER: Yes, he was. This was a natural rock platform abutting into the Pacific Ocean. It was well known to be a popular place for diving and the Council well knew that this was a dangerous practice. Fifteen years earlier a man had become a tetraplegic in almost identical circumstances, diving from the same place, to Mr Vairy.

GLEESON CJ: I may have misunderstood the evidence, but I thought I saw somewhere that there had been occasions when the Council had actually stopped people from diving.

MR SEMMLER: Well, a lifesaver gave evidence that on occasions he would go out in a boat and warn people not to dive. He operated from - - -

HAYNE J: And generally be ignored.

MR SEMMLER: Yes, in general terms, I suppose, yes, that is what he said. There was evidence also that after that incident involving Mr von Sanden in 1978, a lifeguard employed by the Council had been quoted in the local newspaper which the trial judge found must have been read by the Council as saying that there ought to be a sign erected prohibiting diving at that place.

GLEESON CJ: I suppose the rocks were, or from time to time became, very slippery?

MR SEMMLER: There is no evidence of that, your Honour. It may well have been.

GLEESON CJ: But you would know that. That is what happens to rocks around Sydney.

MR SEMMLER: Yes, it does.

GLEESON CJ: Another thing that happens to rocks around Sydney is that occasionally big waves come up and wash fishermen off them.

MR SEMMLER: That does happen, yes, your Honour.

GLEESON CJ: Why would you warn only about the diving?

MR SEMMLER: Because this was a specific risk that was unknown, it would seem, to the divers but well known to the Council. It was not an obvious risk. That is the answer. As in cases that have been decided in the New South Wales Court of Appeal, the fact that rocks are slippery or golf courses are slippery or water can wash onto the rocks at some point, they are things that are clearly apparent. This danger - - -

GLEESON CJ: What is the relevance of that?

MR SEMMLER: It is one factor to be taken into account in deciding the reasonable response of the person in charge of that land. Your Honours, what happened here was that the Court of Appeal misapprehended the facts in a critical respect. Their decision that this risk was obvious was based on two matters, one of which was wrong. That matter was that Mr Vairy was actually aware that the water depth was variable. He was not. Not only was there no finding to that effect, there was a positive finding by the trial judge that he was not aware. He was not aware of a matter of which the Council was aware, that is that by reason of the phenomenon known as littoral drift whereby sand is moved along the east coast of Australia by a natural phenomenon, sand can accumulate and cause variable depths, particularly around rocky outcrops like this natural attractive platform which was very popular for diving.

That was one of the two bases on which the Court of Appeal at appeal book page 171 concluded that the risk was obvious but it was not founded in fact. Indeed, it was a misapprehension of the facts and we would respectfully suggest that it was one of the problems that the Court of Appeal confronted when it attempted to deal in one judgment with two cases with differing facts obviously. In an attempt to find commonality, they overlooked this critical matter.

GLEESON CJ: A possible point of view is that in order to overturn the decision of the primary judge in your case, they had to go a lot further in terms of principle than they would have had to go in order to uphold the decision of the primary judge in the other case.

MR SEMMLER: Yes, we would accept that and your Honour’s comment in relation to the other matter.

HAYNE J: And in turn, does that not direct attention to the joint reasons in Nagle at 430 to 431 where their Honours say that the trial judge correctly recognised that “it may have reasonably been considered foolhardy or unlikely” that Mr Nagle might have dived where he did, but their Honours go on to say “that was not the relevant question”. Again, are not these rather larger questions at stake and they may not be resolved necessarily your way or against you? There is a real question if leave goes about the breadth of the arguments that have then to be confronted.

MR SEMMLER: Your Honours, our submission is that the case of particularly Nagle is well and truly on our side so far as the law is concerned on this application. If leave is granted, although matters of importance are raised, it does not necessarily involve the overturning of Nagle or, indeed, the earlier case of Shirt. Your Honours, the trial judge found that this risk in Mr Vairy’s case was not so obvious that the reasonable response of the Council was to do nothing about it at all. She found that considering that the Council was well aware that catastrophic injuries could be caused by diving from that very place - they knew about it, a recommendation had been made by one of their own officers that a prohibition sign be put up and they had done absolutely nothing – she was also influenced by the fact that it was common and popular and well known to the Council to be common and popular for people to dive from that very location.

She reached the conclusion that because it was so common and popular, this detracted from the obviousness of the risk. The Court of Appeal on the other hand decided that the fact that other people so frequently dived from the same location in safety did not, in their words, neutralise or otherwise detract from the obvious risk of diving into water of unknown depth. With due respect to their Honours, that offends commonsense. It offends commonsense to suggest that in respect of a phenomenon of human activity that is said to be obviously risky, to say that that activity performed time after time after time and observed not to result in the risk that it is said to attract, that that circumstance does not diminish the obviousness of the risk, in our submission, is contrary to commonsense.

In the case of Brodie, one of the most recent cases in this area, three Judges in the majority in this Court decided that Mr Brodie’s decision to drive over the bridge that ultimately collapsed was reasonable, notwithstanding there was a sign in effect warning him not to do it. It was reasonable for him to do that because of what the Court declared to be an inference of safety that he drew from the fact that other drivers with a similar load had driven over that bridge that morning.

GLEESON CJ: How does the decision in the House of Lords in the case of Tomlinson earlier this year stand with Nagle?

MR SEMMLER: Your Honours, it deals with the question of obviousness but we say that the question of obviousness under Australian law is encapsulated within what Nagle decided. In our submission - - -

HAYNE J: How is it encapsulated? By ignoring or setting aside?

MR SEMMLER: Your Honour, on one analysis the risk in Nagle was hidden, and that is the opinion of certainly the Chief Justice of this State in Swain. In the other respect, in the important respect, the issue that is raised that is of such importance in this case, the Court in Nagle said that courts are obliged to take into account the fact that the person owing the duty must itself consider the possibility of negligence by the person to whom the duty is owed.

Your Honours, what has happened in this case of Vairy is that the Court of Appeal has decided that does not apply across the board, that the long line of cases of McLean v Tedman, Bus v Sydney City Council, March v Stramare, Nagle, Romeo, those cases have been, as it were – there has been a shift, according to the Court of Appeal. Even though Nagle was reaffirmed in 1978 in Romeo, the Court of Appeal has decided there has been a shift and that that fundamental principle that a person who owes a duty must take into account the possibility of negligence by others, including in respect of obvious dangers. That has been subject to a shift and they do not have to do it. They do not have to do it in this situation.

GLEESON CJ: Getting back to the decision of the House of Lords in Tomlinson for a moment, how do you relate what is undoubtedly the principle that in general a person who owes a duty of care is not entitled to disregard the possibility of inadvertence on the part of the person to whom the duty is owed with the particular problem that arises in the case of people who willingly, even enthusiastically, engage in a risky activity – people who go skiing, for example, or hang-gliding?

MR SEMMLER: In the final analysis, your Honour, it depends on the circumstances to what is reasonable. That is the discretion that the trial judge has. Certainly the principle, in our submission, stands, that simply because there are risks involved in activity does not relieve the person owing the duty of taking into account the possibility that others will fail to take reasonable care for their own safety.

HAYNE J: And do what? In this case put up a sign saying, “Don’t - - -

MR SEMMLER: “Diving prohibited”. That is what was recommended 15 years earlier when a man was catastrophically injured just like Mr Vairy and the Council did nothing. It knew this was a popular practice, it knew it was dangerous, it was in clear view. These people diving off this ledge were in clear view of the clubhouse of the surf lifesaving club where the Council operated from.

GLEESON CJ: Would that in practice mean swimming prohibited?

MR SEMMLER: Not necessarily.

GLEESON CJ: How else would you get into the water from this rock ledge?

MR SEMMLER: You could lower yourself in, you could go backwards, as was done by some of the snorkellers.

GLEESON CJ: A lot of young people would do that, lower themselves in.

MR SEMMLER: Yes.

GLEESON CJ: It would be a very macho display.

MR SEMMLER: Yes. Your Honour, this was a clear risk. There is a video in this case. The trial judge looked at it. She went out to the scene, she spent three hours out there, and in a very considered judgment she decided that there was a risk. It was not so obvious that the Council could sit on its hands and do nothing and that there was a breach of duty. We rely on the commonsense notion that human beings exercising ordinary care, if that is what they are required to do, are entitled to draw an inference from the behaviour of other people. Time after time after time other people are diving there and not being hurt.

GLEESON CJ: I just have a little difficulty at the moment reconciling this undoubtedly important concept of the possibility that people will not exercise reasonable care for their own safety - and hence you have cases of contributory negligence – with a context involving risky, typically sporting, activity. A lot of people would say that no footballers exercise reasonable care for their own safety, otherwise they would not play football.

HAYNE J: At least not well.

MR SEMMLER: Your Honour, that is an issue that has to be determined on the facts of each case. In some situations it may be that a particular risk is inherent and so great that in the circumstances no warning is required, but that is not this case. To adopt this American view – and we would respectfully suggest not only was none of this raised in the Court of Appeal in argument, not at all. It was not raised by Mr Harrison. I was not in the Court of Appeal. I ran the trial, but it was not raised.

We then get many, many pages devoted to the American Restatement and, we would respectfully suggest, a selection of cases, particularly from Illinois with the Great Lakes and the problems they have there with diving, not representative of the situation across the United States. In our submission, bearing in mind the cases decided by this Court, not by the American courts, the notion that obviousness alone forecloses the issue of liability is simply contrary to Australian law. It is contrary to what was said - - -

GLEESON CJ: Is that what the American cases have held?

MR SEMMLER: This open and obvious doctrine which has been adopted in some States, including Illinois, has that effect. If the danger is so obvious, that is the end of it. It is like a Valenti defence. You do not go any further. You do not look at the surrounding circumstances and weigh up the obviousness against the inference of safety that might be - - -

GLEESON CJ: It would depend on the circumstances, would it not? I do not know whether at Watsons Bay Gap there is a sign up saying, “Don’t fall over the edge”.

MR SEMMLER: I think there are fences there, your Honour, although people get over them. We say under Australian law it does depend on the circumstances. The Court of Appeal misapprehended the facts regarding the circumstances in this case and they used a definition which was wrong. In respect of the definition, your Honour, in our submission, they actually misdefined the risk. The risk is the possibility of an adverse outcome and in this case the risk should have been, as it was correctly defined by the trial judge, the possibility that the diver would strike his head on the raised sandy bed of the ocean. The Court of Appeal, on the other hand, defined the risk in a way that incorporated the very thing that they said was obvious, that is, it was not just the risk of striking the ocean floor. It was diving into
water, the depth of which was unknown, and thereby striking the ocean floor.

To incorporate that circumstance, which was only one of many circumstances surrounding what happened that day, into the risk inevitably by definition meant that the risk was obvious. In our submission, it was a misdefinition of the risk, the risk simply being the possibility of an adverse outcome, as was said by Justice Gummow in Rosenberg v Percival, in a case of failure to warn about possible adverse consequences from surgery, the risk has nothing to do with the knowledge of the patient. It is simply the possibility of the adverse outcome from the surgery which is proposed. That was not the approach taken by the Court of Appeal and, in our submission, they erred in that respect.

Your Honours, in our submission, not only was the risk not obvious because the Court of Appeal misapprehended the facts, not only was the definition of the risk incorrect, but in the final analysis it was necessary to take into account all of the circumstances, including the inference of safety to be drawn as a matter of commonsense from the behaviour of others, including the evidence that was given at the trial that trying to work out how deep this water was was very deceptive. The evidence by an employee of the Council itself, one of its beach inspectors, was that there was in his words a hidden danger in that the level of the ocean bed, immediately adjacent to where this popular pastime was carried out, was uneven.

Your Honours, in our submission, for the reasons we have given, there are numerous issues of considerable importance to the law of negligence generally arising from this case and, in our submission, it is a suitable vehicle.

GLEESON CJ: Thank you, Mr Semmler. Yes, Mr Harrison.

MR HARRISON: Can I just indicate two matters, if your Honours please. The first is that it is not correct to say that Mr von Sanden, who was catastrophically injured there in 1978, was injured in, to quote my friend, almost identical circumstances. This rocky outcrop had an area where the plaintiff in the present case dived from which was about as high as the bench in front of your Honours. The area from which Mr von Sanden dived was an area which elevated itself going north to a level higher than the ceiling of this room, approximately five metres, or, as her Honour found, about 3.6 metres higher. There was a significant difference between the two events.

Secondly, because your Honours asked, there was evidence that the rocks were slippery. That appears at the top of application book 21. Your Honours, the risk in this case was glaringly obvious. The Court of Appeal did not, in my submission, erroneously elevate obviousness of risk to some new status or tie itself to any definition. It recognised obviousness as a convenient way of recognising the limits of an occupier’s liability. The old notions of hidden trap and unusual danger used to inform the balance between an occupier with knowledge, actual or imputed, and someone coming to a situation relevantly with no knowledge or less knowledge. Obviousness is the concept which draws attention to the fact that there is no dissimilarity between that person coming to the land and that person who is the person responsible for it.

In the present case the danger was clearly obvious. Can I draw your Honours’ attention to a distinction between the facts in this case and the Mulligan Case to the extent that they refer to the concept of variable depth. My understanding of the Mulligan Case was that variable depth in that case meant that there were waves or shoals beneath the surface because of the movement of the creek bed in that area. In the present case there was reference to – it is relevantly discussed by the trial judge at application book 38 – littoral drift which was the concept that saw sand moving into and out of coastal areas such as this rock platform from time to time and over time.

The evidence did not establish that the plaintiff in this case was misled. In other words, the danger associated with the change in levels was not hidden. Indeed, it was not relevant at all. It may be that the Court of Appeal misstated the fact that Mr Vairy was aware of changing levels. It does not matter. The evidence was that the sand level at the bottom of this rock may change and be different from one day to the next. This was not a case of Mr Vairy having swum there, having dived there on a previous occasion, found the water to be a certain level, chosen to dive on this occasion and catastrophically discovered that the water level was different.

The position was quite clear. He dived head first off about a metre or a metre and a half, the variation depending upon recollections and the slow movement of the water. He did not look. He did not follow that exhortation we have all been given since childhood not to dive into water unless you know the depth. There was no better knowledge that the Council had of the level of the water at the time he dived than was available to him. He was not misled catastrophically to be injured by changes in the depth because there were no changes relevant to any activity by him on a previous occasion.

GLEESON CJ: How deep was the water into which he dived?

MR HARRISON: We do not know, your Honour. Your Honour asked the questions about videos on a previous occasion. There were some videos not taken on this day which showed the level at some stages, and admittedly on other occasions, to be waist height to people standing there, but it was not satisfactorily established what the level was. Mr Vairy said he did not know what the level was because he did not check.

So the point of the exercise, your Honours, is this is a simple case on its facts. There is no significant advantage that the Council had not available to Mr Vairy. This is not a case which challenges or imperils the wisdom of Nagle which involved a hidden rock beneath the surface of the water. Nothing was hidden from Mr Vairy and he came to - - -

GLEESON CJ: Do you mean by that that if special leave were granted, you would not be challenging the authority of Nagle?

MR HARRISON: I would not. He did not come to this area with a different knowledge, so what was obvious to him was obvious to the Council. His Honour Justice Meagher in Waverley v Swain is quoted at application book 150:

(i)t must be the law that there is no need to warn against any danger whose existence is glaringly obvious, nor to warn persons who know full well what the dangers are –

Both situations apply here.

With respect, your Honours, nothing is likely to be as chaotic in this area of the law as a retreat from that simple proposition. There is no tension between the notion of an obligation on people to take account of the fact that failure to take proper care for their own safety or some inadvertence might lead them into peril. The reason for that is at the level of obviousness of the risk in that case, the wisdom that informed where the duty starts and ends was that obviousness.

HAYNE J: Do any of the various legislative steps that have been taken in relation to what is generally called tort law reform have any direct or indirect impact on these applications?

MR HARRISON: We have set out in our submissions the suggestion that they do not affect this case itself.

HAYNE J: I understand that.

MR HARRISON: But in terms of utility and the usual principles applying in applications like this, the significant likelihood is that in the varying degrees we have set out – and I accept immediately the responses that Mr Semmler has given – will diminish the utility of anything that the Court might want to say were special leave granted on issues like that.

There was no hidden danger, this was obvious, and the variability of the water levels does not achieve a significance in this case that my friend would contend for. Those are our submissions.

GLEESON CJ: Thank you, Mr Harrison. Yes, Mr Semmler.

MR SEMMLER: Your Honours, my learned friend said these words: “Maybe the Court of Appeal misstated the fact that the plaintiff was aware of the changing level of the ocean bed. Maybe they did but it doesn’t matter”. Those were his words. If your Honours went to page 171 of the application book, paragraph 206 encapsulates Justice Tobias’ words on behalf of himself and the President which are critical to that issue. He said, as your Honours see:

this knowledge . . . on the part of the defendants is neutralised –

their knowledge that this was a popular pastime and it was dangerous –

by the fact that each of Mr Vairy and Mr Mulligan were aware that the water into which they were diving was not only of variable depth but also of unknown depth. It was those factors, as I have said, which made the risk of injury from diving into such water, obvious.

GLEESON CJ: Just pausing there, Mr Harrison says that there was no evidence of the actual depth.

MR SEMMLER: No.

GLEESON CJ: Were there any people standing around or doing anything at the time your client dived that would have indicated to him what the depth was?

MR SEMMLER: Nothing in particular, your Honour. There was no evidence that people were actually standing in the water so they could be seen above the water in the area where he dived.

GLEESON CJ: What was his evidence as to what he thought the depth was?

MR SEMMLER: He thought it was safe enough for him to dive.

GLEESON CJ: Obviously, but did he have - - -

MR SEMMLER: But because other people were diving and getting out and going back again to do it.

GLEESON CJ: On that day?

MR SEMMLER: Yes.

GLEESON CJ: So none of those people who were diving in stood up in the water or did anything that would indicate how deep or shallow it was?

MR SEMMLER: No. As I recall, there was no evidence to that effect.

MR HARRISON: Application book 20, your Honours, is the plaintiff’s evidence:

The plaintiff did not take any steps to assess the depth of the water - - -

MR SEMMLER: Yes, he thought it was deep enough. This is the point. Justice Tobias in the Court of Appeal was very concerned that Mr Vairy did not know the actual depth in the sense that presumably he did not get out with a tape measure or some other device to work out how far it was from the water to the ocean bed. Your Honours, in our submission, reasonable people when they are about to dive do not do that, or at least very rarely do they do it. It may be, my learned friend says, there is exhortation to children that you have to know the depth, but people ascertain the depth in the sense of working out is it safe to dive, not by putting a tape measure in but by relying upon inferences to be drawn from all the circumstances, just as in the Brodie Case I indicated.

There was an inference of safety that was reasonable and that could foreseeably to the Council be drawn by these people year after year who were diving in this place where somebody had been catastrophically injured. There was a reasonable inference of safety available to them. That is the inference Mr Vairy relied upon but he did not know what the Council knew, that beneath the water was a hidden risk and the ocean bed could vary - and oceanographic studies were done in this case over 64 days – by as much as 1.6 metres. The level on one day could be 1.6 metres above what it was on another day. There were studies done by an oceanographer, Mr Miller.

GLEESON CJ: Would that be affected by the tide?

MR SEMMLER: It was a matter of wind and tide, yes, but it was not clear as to whether it happened each day or what. It was clear to the trial judge on the evidence that it was a variable risk known to the Council, unknown to Mr Vairy and all the other people who were diving and who did it not just on that day but for years. Mr Harrison says Mr von Sanden’s
accident when he became a tetraplegic and subsequently died of complications resulting from that tetraplegia was a different case.

True it is he dived from some distance further north on the same popular rocky outcrop or ledge from a higher point, but that is a matter of no significance in the evaluation of whether that was a relevant circumstance because it was found by the trial judge that it was dangerous to dive based on the evidence of one of the Council’s own employees along the length of that rocky outcrop.

GLEESON CJ: I would have thought the most obvious circumstance that would affect the depth of the water on a rock at a beach in Sydney would be whether it was high tide or low tide.

MR SEMMLER: Yes, that is certainly true, and an attempt was made to replicate the conditions on that day when this accident happened when the view was undertaken, but the trial judge decided because of various factors that it was not possible to determine from the view at the same time of day in similar circumstances what the precise depth was. Certainly the tide had an effect but when one thinks about it, not a relevant effect if people before one dives are diving in, getting out, going back and diving again. Your Honours, our answer on the civil liability legislation is contained within our submissions.

GLEESON CJ: Thank you, Mr Semmler.

In both of these matters there will be a grant of special leave to appeal. The cases will be listed to be heard together and we will allow one and a half days for the hearing. We will expect counsel to agree between themselves upon a division of the time.

MR SEMMLER: Your Honours, I wonder whether it is appropriate to ask that this matter be expedited. The special leave application was expedited because of the particularly parlous circumstances of Mr Vairy. He only has assistance five hours a day and he has no money to pay for assistance. I do not know whether it is appropriate to do that now or by motion.

GLEESON CJ: In the ordinary course if a case was given special leave today, it would probably be listed for hearing in March or April of next year, and the list for February is already full, so I do not think it makes much difference, Mr Semmler.

MR SEMMLER: No. Thank you, your Honour.

AT 10.50 AM THE MATTERS WERE CONCLUDED