Sweeney v Boylan Nominees Pty Ltd [2005] HCATrans 658 (2 September 2005)

--

Sweeney v Boylan Nominees Pty Ltd [2005] HCATrans 658 (2 September 2005)

Last Updated: 6 September 2005

[2005] HCATrans 658

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S101 of 2005

B e t w e e n -

MARIA SWEENEY

Applicant

and

BOYLAN NOMINEES PTY LIMITED T/AS QUIRKS REFRIGERATION

Respondent

Application for special leave to appeal

McHUGH ACJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 SEPTEMBER 2005, AT 9.53 AM

Copyright in the High Court of Australia

MR D.F. JACKSON QC: If the Court pleases, I appear with my learned friend, MR M.J. WARD, for the applicant. (instructed by McLachlan Chilton)

MR J.E. MACONACHIE QC: If your Honours please, I appear with my learned friend, MR N.E. CHEN, for the respondent. (instructed by Holman Webb)

McHUGH ACJ: Mr Jackson, we might call on your opponent first. Mr Maconachie.

MR MACONACHIE: This case, your Honours, presents fundamentally a set of facts which does not throw up the point for which my learned friend contends. The fundamental point, and we say the one that is a complete answer to the application, is the fact that the relationship between Quirks, or Boylan Nominees, on the one hand, and Mr Comninos, or his company Cool Runnings Pty Limited, was never investigated. There is just no basis for inquiring into the question of whether or not Mr Comninos or his company - - -

KIRBY J: But he was your mechanic.

MR MACONACHIE: He was our mechanic, indeed he was. He was a - - -

KIRBY J: He is described as your mechanic and you arranged for him to be there.

MR MACONACHIE: Of course. That is a question of what - - -

KIRBY J: What does the lay - - -

MR MACONACHIE: - - - our mechanic means was a question of fact which was resolved in our favour in the Court of Appeal.

KIRBY J: Yes, but what does the ordinary person dealing with you know about such intricacies of your arrangements?

MR MACONACHIE: Well, your Honour, the general rule - - -

KIRBY J: She just goes into the petrol station and the door falls off.

MR MACONACHIE: Indeed.

KIRBY J: That is in your facility.

MR MACONACHIE: It is in the facility of the petrol station. They are the one who have control over the door at the relevant time.

KIRBY J: Yes, but you arranged for your mechanic to come and do it.

MR MACONACHIE: Indeed, but that is a question of fact. What the words “our mechanic” mean in either context in which they are used was a question of fact for the Court of Appeal and that was resolved in our favour.

KIRBY J: Well, that is a question of whether they approached the matter in the way that Justice McHugh suggested the law was developing in Hollis v Vabu.

MR MACONACHIE: And the reason why this case is not an appropriate case to determine whether or not - - -

KIRBY J: Well, that is the issue.

MR MACONACHIE: - - - that approach suggested by Justice McHugh is appropriate is because the relationship between Mr Comninos or his company on the one hand and Quirks, or Boylan Nominees, on the other was just never investigated. It was never the subject - - -

McHUGH ACJ: Well, it must have been in one sense. I mean, there was the question whether he was an independent contractor or an employee, was there not?

MR MACONACHIE: Yes, yes.

McHUGH ACJ: And the Court of Appeal does not seem to have had any difficulty about dealing with the issue. Justice Ipp in his judgment said that the issue raised concerned important questions of law that were attended by some uncertainty.

MR MACONACHIE: We do not deny that. In fact, we concede it in our written document. What we say is that the factual matters that are set out in the written document that we put in and in the judgment of the Court of Appeal – I do not want to revisit those, your Honours will be familiar with them – but the fundamental proposition that we say makes this a case which is unattractive to the Court in examining what is an important question is the complete failure for the relationship between all of the parties – and I include Mrs Sweeney, the people at the petrol station and Boylan Nominees and Mr Comninos and his company – that was just never investigated.

The proposition that your Honour has examined in three or four cases from CML requires an identification and representation characterisation which could never be attempted, we say, unless and until the relationship between the people to be identified with one another, the person or persons said to represent another, is examined with some care, and it was not in this case. That is the fundamental reason why we say this is not a proper case.

KIRBY J: Yes, it really raises the – that is the issue - - -

MR MACONACHIE: It is, your Honour.

KIRBY J: - - - as to whether this is the appropriate vehicle to bring the matter up.

MR MACONACHIE: Absolutely, absolutely.

KIRBY J: Because it is a point that is hanging around waiting to be decided.

MR MACONACHIE: I accept that, your Honour.

KIRBY J: I cannot think of counsel who would be able to help us more than you, Mr Maconachie.

MR MACONACHIE: Well, your Honour, I am overwhelmed. I do not know quite what to say.

McHUGH ACJ: That is because you are conservative and you would be arguing for the conservative view of the law.

MR MACONACHIE: That is very unkind of your Honour.

KIRBY J: You are always resisting coming up to us.

MR MACONACHIE: That is very unkind of your Honour. Your Honour, what we say in the written document I will not repeat. Your Honours ask me why it is this is not the appropriate case. We say the central and compelling reason is a failure to investigate the relationship between Quirks on the one hand and the serviceman and/or his company on the other and without that - - -

KIRBY J: They got the primary facts in, especially the documentation and the fact that he was called their mechanic.

MR MACONACHIE: Yes, your Honour, but they are all questions of fact.

KIRBY J: Yes, that is true, but you have to ask why does the law impose vicarious liability on one person for another.

MR MACONACHIE: Indeed, your Honour.

KIRBY J: And here you have an ordinary citizen who goes into a petrol station and the door falls off the morning after it has been fixed and the petrol station had complaints, gets their mechanic and their mechanic goes and fixes it up.

MR MACONACHIE: Yes. There was no representation to Mrs Sweeney and she is the plaintiff. There was no identification that binds Mrs Sweeney - - -

McHUGH ACJ: That distinguishes it from CML.

MR MACONACHIE: Indeed it does, indeed it does, and that is part and parcel of the failure of the evidence to engage the concept of representation, identification so as to engage the - - -

KIRBY J: You will see why this is such an important issue though, because more and more, former employees under awards are now entering into contracts.

MR MACONACHIE: Absolutely.

KIRBY J: Private contracts are becoming the thing again where it is the 19^th century revisited. So that being the case, this issue is a very common issue.

MR MACONACHIE: Absolutely, your Honour.

KIRBY J: I mean, we see it coming up every second special leave hearing, this type of issue.

McHUGH ACJ: In fact, we have another one, something similar, later in the list.

MR MACONACHIE: The other cases all involve the GSF v Allianz, your Honour.

KIRBY J: The question, I suppose, is whether the principle in Stevens v Brodribb needs to be fleshed out a bit in the light of what Justice McHugh said in Hollis v Vabu.

MR MACONACHIE: Your Honour, I do not deny that it is an area of the law that is ripe for reconsideration. I do deny that it does not have - - -

McHUGH ACJ: Mr Jackson does not rely merely on the representative ground. He relies on a pure agency ground, his ground 2.

MR MACONACHIE: Indeed, indeed, but in order for that to be identified, examined, considered, there had to be some evidence of the relationship between Quirks on the one hand, that is Boylan Nominees on the one hand, and Mr Comninos and/or his company on the other and it was just never ever investigated and without that - - -

McHUGH ACJ: Well, why do you say that, given what appears at page 37 of the book? The judge himself said “The entire relationship needs to be considered” at line 30.

MR MACONACHIE: Yes.

McHUGH ACJ: And he referred to the documentary exhibits and took into account attendances and all those matters.

MR MACONACHIE: But the relationship between the company and/or Mr Comninos was not examined and the Court of Appeal so found, particularly when considering the Workplace Injury Management Act argument that was put below by Mr Williams. At paragraph 60 of the judgment of the Court of Appeal on page 77 of the application book:

it was not clear from the evidence whether Boylan instructed Mr Comninos personally to do the work or whether it requested Mr Comninos’ company to do so.

If that is not examined and some findings made and secured before you come to this Court by the plaintiff, then the point is not available for consideration. It is just not the right case. Now, I can say that again, but it will not get any stronger. They are the submissions upon which we rely.

McHUGH ACJ: Thank you, Mr Maconachie. Mr Jackson, what do you say about this case being not a suitable vehicle to determine this point?

MR JACKSON: Your Honour, these things, if I may. First, if one takes the narrowest approach that we would seek to advance, the case gives rise to an issue about the meaning perhaps, perhaps the ambit of the concept to which the Court referred in Hollis v Vabu at page 40 of that case, paragraph 42. Now, I will come back - - -

KIRBY J: Justice McHugh was the only one who explained the case in the broader principle, was he not?

MR JACKSON: Yes, yes, but I am just going to refer your Honours to the first sentence of that paragraph where it said:

In general, under contemporary Australian conditions, the conduct by the defendant of an enterprise in which persons are identified as representing that enterprise should carry an obligation to third persons to bear the cost of injury or damage to them which may fairly be said to be characteristic of the conduct of that enterprise.

Now, your Honours, one would think, if I could go to this case, that first of all it was clearly established that it was the respondent’s obligation as lessor of the commercial refrigeration equipment in question to repair and maintain it. I can take your Honours to the reference, if your Honours desire. The second thing is it was to fix a simple and specific thing. The door was falling off. It sent either – and the evidence is discussed at page 22 in the conclusions – it sent either its employees or contractors to it to perform the work. It may be assumed that he was a contractor to it and was not someone who was his employee in the ordinary sense of the term. When he attended at the premises he attended as their representative.

Your Honours will see that referred to in the judgments, also particularly exhibits F and D. He had the book of the F and D accounts. Now, no doubt, your Honours, and the evidence establishes this, he did not go about in Boylan’s refrigeration shirts or other livery, but if one goes back to Hollis v Vabu at the passage to which I referred earlier, all the evidence appears to be there which would justify a conclusion that, assuming the ambit of the concept be as described there, he was a person representing that enterprise, he turns up to do it. He was sent in response to an obligation to service. He was armed with the respondent’s documents and why would not the type of injury be characteristic of the conduct of the enterprise. You go to fix a refrigerated door, you do not do it properly and it falls on someone’s head.

McHUGH ACJ: So you are really relying on two grounds. You are relying on what might be described as the narrow view stemming from the majority judgment in Hollis.

MR JACKSON: Yes.

McHUGH ACJ: And also the wider view.

MR JACKSON: Yes, your Honour, I accept that. But could I just say two other things about it. One is that if your Honours – my learned friend said that fact that this all was not investigated – he said it a number of times, as he confessed, as it were – but to say it does not make it true. If one looks at the whole of the primary judge’s judgment you will see that he went right through the evidence, what there was, what happened, when these people were called out and so on and your Honours will see that that is dealt with. It is referred to in the Court of Appeal’s reasons.

But could I also say that there was a great deal of evidence and, your Honours, cases take courses and if there was a shortage of evidence on something that would exculpate the defendant, then at least the evidential onus on this issue, one might have thought, would have turned to them and that not having been taken or acted upon, one is left with the evidence as it was. The evidence, in our submission, was perfectly plain and sufficient to establish that the issue plainly arose and, in our submission, should very arguably be decided in our favour.

Could I mention one other matter, your Honours, and it is this. Our learned friend’s written submissions in page 102, paragraph 4 say that really not enough money is involved. It is a small case, 40 something thousand dollars. Your Honours, the applicant would really like to have what there is and also not to be burdened with costs orders.

McHUGH ACJ: Yes.

KIRBY J: Well, you will have read what Professor Luntz says about the ill winds that blow against plaintiffs at the moment. She realises that if she loses this attempt to establish a test principle that she has to bear the burdens of the appeal.

MR JACKSON: Yes. Your Honour, we have not asked for any special orders in the application. If it came to a matter – came to an issue, perhaps we would at an appropriate time address the Court. Maybe we would be successful, maybe we would not.

KIRBY J: Are you seeking to refine or redefine the principle in Stevens v Brodribb? In your submission, did Justice McHugh’s expression of principle in Hollis v Vabu amount to or beckon us to some re-expression of the, as it were, rationale for vicarious liability expressed in Stevens?

MR JACKSON: I think your answer is yes, your Honour, to a degree. Your Honours, it is clear, of course, if I can just say this in general terms, that (a) the relationship between – the reasoning that gives rise to vicarious liability in this general area on the one hand, and on the other hand the application to it of concepts of agency, something of course ultimately deriving from something more akin to contract on one hand, may give rise to some difficulty. If one looks in modern times, if one looks, for example, at the lengthy discussion by Justice Gummow in the Scott Case one sees that things have developed over time.

But the point we would seek to make, your Honours, is that this is a case which is capable of being decided on the application of the paragraph to which I referred earlier, but of course that carries within it a question of what that means, what that doctrine means. That is one way. On the other hand it is a case capable of being dealt with by a somewhat larger examination of the notion of the position who is, let us assume, an independent contractor for one purpose but performing work of this kind, a rather larger question.

McHUGH ACJ: The passage in paragraph 42 in Hollis seems to indicate almost a re-emergence of the organisation test that Lord Denning championed in the early 1950s.

MR JACKSON: Well, your Honour, not really surprisingly in a sense because, as your Honour Justice Kirby said earlier, and we put this in our written submissions, we are seeing a change in arrangements, even such things as having a dishwasher fixed up and things of this kind. So many more things are done by calling A, but one then finds that A has contracted it to B. It makes it very difficult for persons who are injured by conduct if one has to then go into a detailed examination of how the internal arrangements of the person who undertook to do the job, not necessarily for the person injured.

KIRBY J: Are there still provisions in workers compensation law in New South Wales that provide for, as it were, the over-contractor in certain cases to be liable for the compensation payments to a - - -

McHUGH ACJ: Subcontractor.

KIRBY J: To the subcontractor.

MR JACKSON: Your Honour, that provision was referred to I think in the Court of Appeal’s decision at page 77, paragraph 59.

McHUGH ACJ: Yes.

MR JACKSON: And it was held that that issue, your Honours, I think had not been – yes, paragraph 63, additional evidence would be needed and the case may have been conducted differently.

McHUGH ACJ: Yes.

MR JACKSON: Your Honours, those are our submissions.

McHUGH ACJ: Yes. Mr Maconachie, anything in reply?

MR MACONACHIE: Very briefly, your Honour. Can I take you to page 97 of the application book where Mr Jackson, in paragraph 25 of his submission, puts the proposition in the last sentence:

The manner in which Mr Comninos undertook his task contained both representation and identification –

Well, it is not the manner in which Mr Comninos undertook his task that attracts the application of the CML rule, but how he was represented, held out, identified by, in this case, Boylan Nominees. In my respectful submission, that is the key to his representation argument and he approaches, and must on the facts of this case, approach it from the wrong end and that is another reason, we would submit, why it is - - -

KIRBY J: Remind me of the factual element in Hollis v Vabu. I think the courier was wearing the livery of the - - -

MR MACONACHIE: He was dressed up to the nines.

McHUGH ACJ: That was the only way the plaintiff identified him, was it not?

MR MACONACHIE: Quite. And of course in Hollis v Vabu there was a document which required of the courier to act in such a way as to protect the good name and the like of Crisis Couriers.

KIRBY J: You did not care whether your mechanic protected your good name?

MR MACONACHIE: I did not say that at all, but that is a point of distinction, a critical distinction, between the Crisis Couriers case and this one.

KIRBY J: It is a point of distinction, yes. There is no doubt that that is a point, but there are not – not in a sense that Hollis was an easy case I think.

MR MACONACHIE: Yes, yes. It was decided on employee, of course, your Honour.

KIRBY J: Not many subcontractors are going to be wrapped up in the livery of their contractor.

MR MACONACHIE: Of course that is not something that was examined in the evidence in this case either. This “contemporary Australian conditions” construct that my learned friend shouts loudly about was not referred to at all.

KIRBY J: He did not. I think I raised it, but it - - -

MR MACONACHIE: I am sorry, your Honour?

KIRBY J: I think I raised it. Do not blame Mr Jackson.

MR MACONACHIE: No, no, no, your Honour. It is there in Mr Jackson’s own fair hand.

KIRBY J: Well, I mean, we only have to read the Workplace Relations Act and the legislation and keep our eyes open to know that these things are happening.

MR MACONACHIE: Of course, your Honour, but each case is determined on its own facts and in this case - - -

KIRBY J: But that will be true of every case.

MR MACONACHIE: Of course.

KIRBY J: And on that theory you will never bring any case up because every case is to be determined on its own facts. That cannot be right.

MR MACONACHIE: No, but in this case the question of the way in which Mr Comninos and/or his company related to Quirks in the context of contemporary Australian conditions was never examined. But that is all I wanted to say about it, your Honours.

McHUGH ACJ: Yes, there will be a grant of special leave in this particular case.

AT 10.15 AM THE MATTER WAS CONCLUDED