Australian Hospital Care (Ringwood) Pty Ltd v Metron Medical Australia Pty Ltd [2007] HCATrans 394 (3 August 2007)

Last Updated: 22 August 2007

[2007] HCATrans 394

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M39 of 2007

B e t w e e n -

AUSTRALIAN HOSPITAL CARE (RINGWOOD) PTY LTD

Applicant

and

METRON MEDICAL AUSTRALIA PTY LTD

Respondent

Office of the Registry
Melbourne No M41 of 2007

B e t w e e n -

METRON MEDICAL AUSTRALIA PTY LTD

Applicant

and

MICHAEL WINDAHL

Respondent

Office of the Registry
Melbourne No M42 of 2007

B e t w e e n -

METRON MEDICAL AUSTRALIA PTY LTD

Applicant

and

VICTORIAN WORKCOVER AUTHORITY

Respondent

Applications for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 AUGUST 2007, AT 10.16 AM

Copyright in the High Court of Australia

__________________

MR J.H.L. FORREST, QC: May it please the Court, I appear with my learned friend, MR D. MASEL, on behalf of Australian Hospital Care in the first of the matters. (instructed by Dibbs Abbott Stillman Lawyers)

MR M.A. DREYFUS, QC: If it please the Court, I appear with my learned friend, MR G.B. WICKS, for Metron Medical Australia Pty Ltd in all three of the matters. (instructed by Norris Coates)

MR R.K.L. MELDRUM, QC: If the Court pleases, I appear with my learned friend, MR M.C. O’CONNOR, in the second of the matters, that is M41, for the respondent, Windahl. (instructed by Callahans)

MR J. RUSKIN, QC: If the Court pleases, I appear with my learned friend, MR B.R. McTAGGART, for the Victorian Workcover Authority in the last matter. (instructed by Hall & Wilcox)

HAYNE J: Mr Forrest, if we hear you first in your matter, then, depending on where we go to from there, obviously Mr Dreyfus will next be heard but in respect of what matters we will decide then.

MR FORREST: Thank you, your Honour. Your Honours, may we say by introduction this application raises a discrete point that does not involve any consideration of the issues raised in the next two matters, that is, the special leave applications of Metron. There is no challenge in this application concerning the findings of fact made by the trial judge and it is solely the application of the apportioned provisions of the Wrongs Act and the reasons for it given by both the primary judge and the Court of Appeal that are to be agitated on this application.

The fundamental proposition that we wish to advance and we say was failed to be appreciated by both the primary judge and the Court of Appeal was this, that whilst the terms of the Wrongs Act, section 23B(1), impose a liability upon a tortfeasor such as AHC, section 24(2) differentiates between liability and responsibility. It specifically empowers a court, as do other apportioned provisions throughout the country, to grant an exemption or a full indemnity albeit that the party maybe liable to the plaintiff. So the Act assumes that one can be liable but not responsible under section 24(2). That distinction, we say, both the primary judge and the Court of Appeal failed to appreciate. There is no reference to it and it seems to have proceeded, we submit, in both courts on the basis that once a party was liable to the plaintiff it therefore followed that there was some responsibility.

In fact, conceptual analysis, which, we submit, should have been applied, ought to determine whether the whole conduct of each party and the relevant importance of the acts of the party ultimately determined whether there was responsibility under the Act but, we say, that process was not engaged in by either the Court of Appeal or the primary judge. If it had been, our contention is this, that everything implicated the Vectrosurge, it was the Vectrosurge that produced the damage, it was the damage caused by the Vectrosurge solely that underpinned the award of damages. There was no award of damages in respect of the knee injury.

AHC itself had no control whatsoever of how the Vectrosurge was manufactured or operated and AHC created no risk in a real sense because it was simply the malfunction of the Vectrosurge that produced the damage. We say, inevitably, it should have led to the conclusion by both the primary judge and the Court of Appeal that there was no true responsibility in the sense of the Wrongs Act mandates. Can we turn very briefly to the findings that were made by both the primary judge and the Court of Appeal. The primary judge held this that:

It was the negligent default of AHC which put the plaintiff on the physiotherapist’s table, leading to an electric shock.

That is page 36, line 50. He expressed it in another way in the application book at page 37, line 50:

The only relevance of the right knee injury is as part of the chain of causation –

and when he carried out the apportionment at application book page 38, line 45 there was no mention whatsoever of AHC’s role in terms of determining the apportionment. So the sole basis upon which he seems to have found that AHC was 20 per cent liable to contribute was it was part of the chain of causation.

HAYNE J: Is that consistent with what appears at paragraph 120 in the second sentence at page 38, “the degree of departure by AHC from the standard of care”? That may be elliptical but it seems to be, does it not, that the judge is considering a degree of departure from a standard of care?

MR FORREST: Yes, he was. It seems he looked solely at that but he did not address the question of cause and potency. It seems he lost sight of that and the cause of potency was simply as we put it, that all AHC - - -

HAYNE J: Does not that then tip the case over simply to a debate about apportionment in particular circumstances rather than a point of principle?

MR FORREST: Our point of principle is this, that what his Honour did was simply identify liability and not deal with the question of responsibility. Once he found there was some liability in the sense explained in Mahoney, he then proceeded to deal with responsibility. He proceeded to go to responsibility without taking into account how it was the damage had been sustained. The damage had solely been sustained by the failure in the Vectrosurge. We say, with respect, your Honour, it does not do that. It still leaves outstanding the question of responsibility and the question of the cause of the damage.

When the Court of Appeal dealt with it at paragraph 109 of its judgment, the judgment of Justice Bongiorno, it effectively adopted what had been said by the trial judge:

that the negligent employer bore some responsibility because it had “put (him) on the physiotherapist’s table”.

It was simple as that in terms of how the Court of Appeal dealt with it. In our respectful submission, that did not deal with the issue adequately. It simply did not address the points that we had made in relation to where the source of the damage came from. Simply putting someone in the path of danger is, we say, an inadequate basis on which to find that party is responsible. In conclusion, we may we make the following points - - -

CALLINAN J: What about paragraph 113 on page 36? What about that finding?

MR FORREST: We have no quibble with the finding that there was “negligence on the part of AHC” but our point is that that does not take the case to an apportionment in terms of liability because of the way in which the damage was sustained.

CALLINAN J: Why not?

MR FORREST: Because the negligent act of AHC did no more than place him in the path of danger. When it came to an apportionment - - -

CALLINAN J: No, it made it necessary for him to be treated.

MR FORREST: That is true, just as it would have made it necessary for him to catch a tram or catch a bus where he might have been involved in an accident. We accept that.

CALLINAN J: No, it is a little different from that. There is a lot more susceptibility in the course of treatment than there is in catching a tram and there are obvious risks in hospitals, regrettably, but we see them every day. You are dealing with vulnerable tissue or injured tissue, vulnerable muscle or bones, you are not dealing with a person who is in hospital who is invulnerable or has the same degree of resilience and resistance as somebody who has not been injured. So it seems to me, on that basis, that it is obviously part of the chain.

MR FORREST: We do not quibble with the proposition it is part of the chain. The question that, we submit, the Court of Appeal and primary judge should have addressed was, in determining responsibility was it in effect open to say that that action, in other words, putting in the physiotherapist’s room, required an apportionment of responsibility in the sum of 20 per cent? Our contention is, it did not because of the particular damage that was done. It would have been very different if the knee injury had been aggravated because of the treatment.

CALLINAN J: No, I think the important point of distinction might be that once you injure somebody you produce a continuing state of vulnerability in that person.

MR FORREST: With respect, we would not quibble with that but the vulnerability here - - -

CALLINAN J: And it is that continuing state of vulnerability that contributes to an injury which might perhaps more directly or more immediately can be seen to have been the precipitating further factor. That does not eliminate as a contributing factor the events that have caused the continuing state of vulnerability.

MR FORREST: The vulnerability that your Honour speaks of is a vulnerability in terms of being put into a particular position.

CALLINAN J: Necessity to be treated.

MR FORREST: Yes. If it had been that the treatment had resulted in some aggravation of a knee injury, one can see how the vulnerability would be then exposed. In this case the vulnerability was simply putting him in a place for treatment, it was no more than that, because the damage that was done was totally different.

CALLINAN J: I understand that.

MR FORREST: That is our response to your Honour’s proposition that the damage that was done is such that it takes this out of the realm of what might be the typical type of apportionment case. May we conclude just by raising a couple of matters that we hope might - - -

HAYNE J: Just before you come to that, where do I find in the Court of Appeal’s reasons a response to arguments of the kind you would wish to advance in this Court?

MR FORREST: There is none.

HAYNE J: Why is that?

MR FORREST: I do not know.

HAYNE J: The arguments were not advanced in the Court of Appeal?

MR FORREST: Yes, they were advanced as forcefully as they are being advanced now, perhaps with the same - - -

HAYNE J: Do not lead with your chin, Mr Forrest.

MR FORREST: I was going to add, perhaps, with not the same chance of success. The points that we raise in conclusion are these. We say that this is a matter of importance. This statutory provision is replicated in other legislation. There is no authority on the point that we can find that determines where the original tortfeasor is held liable should then be responsible within the meaning of the legislation to contribute to award of damages payable by a subsequent tortfeasor where the original tortfeasor is only relevant for the damage sustained by the plaintiff is as a link in the chain of causation, to adopt Justice Callinan’s words, to make him vulnerable to an attendance at a hospital.

There is a real interest of justice point. We say our point has never been addressed properly by either the primary judge or the Court of Appeal. This is a suitable vehicle because the matters of fact are not in issue. It will only take a couple of hours at maximum to argue, and we say there is a real doubt about the end result. May it please the Court, they are our submissions.

HAYNE J: We need not trouble you, Mr Dreyfus, on this application.

In our opinion, there are insufficient prospects of success in an appeal to warrant a grant of special leave to appeal in this application. This application must be refused and refused with costs.

Mr Dreyfus, is it convenient to hear you in both of the applications in which you are for the applicant?

MR DREYFUS: Yes, it would be, your Honours, because our submissions in both matters are to the same effect.

HAYNE J: And therefore will be encompassed within the one time period. Yes, Mr Dreyfus.

MR DREYFUS: I can say this right at the outset, your Honours, which is that now I am on safe ground in respect of the unsuccessful application brought by AHC that the other complaint that AHC made as to the inadequacy of the reasons at both levels is of course a complaint that we make as well.

CALLINAN J: Safe ground surrounded by fault lines, Mr Dreyfus.

MR DREYFUS: The primary question that we would wish to raise is, what we say, a significant question about determining breach of a duty of a care where there has been compliance with Australian standards and with regulatory requirements.

HAYNE J: Do you propound some absolute rule to the effect that compliance with standards denies negligence or do you propound some qualified rule that compliance with standards sometimes defeats breach?

MR DREYFUS: It is more the latter than the former.

HAYNE J: If it is the latter, why is it not then simply a case on its own facts raising no point of general principle?

MR DREYFUS: The point of general principle that arises, your Honours, is that this is an example of a court which has failed to engage with the circumstances that surrounded whether or not there had in fact been a breach of duty of care at the relevant time. The circumstances here have been circumstances which included complete compliance with the relevant Australian standards and, more importantly, compliance with the requirement imposed by the relevant regulatory authority, which was the Therapeutic Goods Administration that administers the legislation applicable to medical equipment, which was to the effect that the identified standard had to be complied with.

Perhaps I will pause there to say to your Honours it is similar to the way in which regulatory requirements were said to be part of the circumstances to look at whether or not there had been breach of the duty in Dovuro where the particular requirements were requirements that had been imposed by the Australian Quarantine and Inspection Service. It is similar to, if one could say by analogy, the kind of requirements that were looked at by this Court recently in Fahy where the obligations imposed by the Police Services Act on the police officer – this was the case concerning whether or not there should be a buddy system – that requirements imposed there on police officers were said to be part of the circumstances and had to be taken into account.

In this case, although there is great difficulty in determining the path of reasoning that has been followed by the trial judge, in most respects there has been an almost complete failure to consider a whole range of important pieces of evidence. It is possible to discern the path that the trial judge followed in making the finding of negligence, breach of duty of care against Metron, the manufacturer of the machine, and when one looks at that path of reasoning, it is possible to see that the trial judge and, indeed, the Court of Appeal have fallen into the same error, did not make the judgments that are called for in determining breach in accordance with the principles that this Court has explained in Mulligan, in Vairy and, most recently this year, in Fahy.

CALLINAN J: Mr Dreyfus, the standards are not determinative, you do not substitute the standards for the evaluation by a judge or a jury. Defendants who have not complied with standards sometimes succeed, just as here, somebody who may have complied with standards has failed. We have courts to decide these matters. I do not suggest it is irrelevant, of course it is not irrelevant, compliance with standards, but it is not determinative.

MR DREYFUS: As I answered his Honour Justice Hayne’s question earlier, we do not contend for that extreme position of saying - - -

CALLINAN J: You do in substance in this case because that is your total defence, is it not, “We complied with the standards therefore we should have been exculpated”, is that not right?

MR DREYFUS: With respect, it is not completely correct. It is described by the trial judge as “merely compliance with the standard” but what his Honour the learned trial judge has omitted to say is that it was not just compliance with the standard but also that compliance with that standard was also compliance with the requirement of the relevant regulatory authority. So we do not just have the standard - - -

CALLINAN J: Again, the regulatory authority does not decide the case. The case is decided by the judge on all the facts and circumstances and you do not improve your case by substituting for standards or, indeed, adding to standards regulatory authority.

MR DREYFUS: We would contend that we do substantially improve our case by being able to point to compliance with standards and compliance with the requirements of the regulatory authority because they form an important part of the circumstances that have to be considered in looking at what was reasonable at the relevant time, not looking at the whole thing with hindsight, the vice that has been identified in Mulligan and Vairy and, to some extent, in Fahy. But looking at the time of the design and manufacture of the machine, the time it is put on the market and at that time the situation was that nothing had occurred which could have put Metron on notice. There had been no complaint about the machine. There had been some 600 of these machines sold in Australia and overseas. There had been compliance with the Australian standard and authorisation for its sale by the Therapeutic Goods Administration.

The trial judge approached this by simply looking at, was there the device, the varistor, the small electronic device, that could have been, so it was said by two of the experts at trial, included in the machine and concluded simply from that technical conclusion that there had been a breach of duty of care and in doing so failed to consider the position that the manufacturer of the machine, our client Metron, was in at the time of design and manufacture.

We say that the focus should have been on how the machine should reasonably have been designed in the circumstances existing at the time of its design and those circumstances included, if I could quote Chief Justice Gleeson in Dovuro referring to the “regulatory context”, “at the time”. The trial judge has given no weight at all, has not considered at all what that regulatory context was, rather, the trial judge has approached it on the basis that the machine could have been designed to avoid the hypothesised power surge event.

HAYNE J: Again, where do I find in the Court of Appeal a response to this train of argument?

MR DREYFUS: Your Honours can see something in the Court - - -

HAYNE J: I see the complaint about want of reasons, particularly at pages 77 and following. Where do I find the Court of Appeal dealing with these more basic questions about negligence or no?

MR DREYFUS: It commences really on page 69 of the application book at paragraph 29. There is a description of what his Honour the learned trial judge did at paragraph 30 which is in a general sense – there is a paraphrase in the last sentence at paragraph 30 of something the trial judge said at paragraph 66 of the judgment.

HAYNE J: I find the conclusion at paragraph 37, page 71. Where do you say is the error?

MR DREYFUS: Before I go to that I wanted to draw attention, your Honours, to the first sentence of paragraph 32 at application book 70. Dr Hart was a witness called by the plaintiff and his Honour Justice Bongiorno correctly says the plaintiff’s witness:

Dr Hart considered that although the Vectrosurge was probably a medical item covered by the Therapeutic Goods Act 1989 (C’th), the standard applied by the Therapeutic Goods Administration in evaluating the machine in the administration of the Act –

et cetera. I will say to your Honours that it was a matter of hot dispute at the trial, the applicability of the standard, even though the trial judge recorded something that was said to be common ground, it was not. But what is of significance here is his Honour Justice Bongiorno pointing out but then not dealing with the fact that the standard was “applied by the Therapeutic Goods Administration”. That is the last mention one sees of it and it is entirely glossed over by the trial judge. Then at 36 and 37 Justice Bongiorno deals with “the relevance of the Australian standard”. We say that the analogy that his Honour Justice Bongiorno there uses at the foot of paragraph 36 saying this:

In one sense Metron’s argument that compliance with the standard equates to a successful denial of negligence is not unlike that of the allegedly negligent motorist who seeks to defend a claim that he travelled too fast by proving that he was on the correct side of the road –

is a false analogy. The negligence that was alleged here against the manufacturer was negligence in design of this machine. The machine’s design was subject to supervision by the Therapeutic Goods Administration, that administration directed attention to a particular standard and it is not possible to simply dismiss the relevance of the standard, as has been done here, by having an argument about whether or not it was directly applicable or not. What has been entirely missed here is the fact that the relevant regulatory authority has directed compliance with the standard and that it did comply. It might be true, as his Honour Justice Bongiorno says in the first sentence of paragraph 37, that:

the fact that the Vectrosurge machine complied with [the standard] . . . does not preclude the finding the trial judge made that Metron was negligent in failing to provide appropriate protection –

but we say the question is not whether it precluded that finding, the question is whether or not, in the circumstances obtaining at the relevant time, it is possible to say, applying the principles that have been recently displayed in Mulligan and Vairy and Fahy, there has been a breach of the duty of care. There is no consideration by the trial judge of the importance of the Therapeutic Goods Administration’s imposition of this compliance and it is that failure to apply principle that we say raises a significant question, one that is appropriate to be considered in this Court.

It might be said to be at some levels, your Honour, a relatively narrow point because it turns on the failure of both the trial judge and the Court of Appeal to engage with the role of the Therapeutic Goods Administration but, notwithstanding that, it is a point of general significance because it raises the consideration how courts are to deal with the imposition of regulatory requirements. They cannot simply be dismissed. They do form an important part of the circumstances applying to whether or not there has been a breach of the duty of care.

I wanted briefly to show your Honours that the trial judge had simply reached, in effect, a technical conclusion about whether or not the particular small device costing between $1 and $2 should have been included in this machine. The judgment, as your Honours might have seen, is very difficult to follow and verges, with respect, on incoherence in parts. At paragraph 43 at application book page 11 the trial judge expresses a technical conclusion about the varistor saying that:

whatever the cause of the power surge was, a varistor placed in the circuit at the point suggested by the plaintiff’s case could and probably would have diverted the delivery of excessive voltage –

et cetera. There is then a very lengthy and somewhat muddled technical excurses about electricity and at paragraph 53 there is reference to a test which is to support the point that Transorbs, which is another name for varistor, were available and in use. There is a lengthy quotation from this text by the author Gottlieb. I should draw to your Honours’ attention in passing that at the top of page 18 the quotation goes completely astray. At the sentence commencing “In my understanding of it” we have words that are not the author’s words at all but his Honour the trial judge’s observations and that was established at the Court of Appeal because the relevant text was produced. So we have there two complete paragraphs said to be a quotation from a book which are not a quotation from a book.

HAYNE J: That is apparent when you read it. It is apparent that the typing has gone awry.

MR DREYFUS: Then at 55, relevantly, the trial judge saying that:

the article does not specifically suggest the value of including such over-protection devices in the circuit of devices applying current –

It does not suggest it at all. So that so far all we have in this judgment is a statement by the trial judge, and it does not rise beyond this, at 43 that if the device had been included in the machine, then the effect of surge would have been removed. There is reference to low cost at 56, an error that has been commented on again recently by this Court in Mulligan and Vairy. Breach is not something to be determined simply by looking at low cost. At 65 there is the incorrect statement by the trial judge of “common ground”, that is on application book 21. This was disputed. It was the contention put by Metron at trial and in the Court of Appeal that their standard covered all electrical equipment.

If one looks to the text of the standard on the facing page at the foot of application book 20, one can see that it is intended to cover electrical equipment including a machine of the type under consideration here. Back
at 65, the trial judge refers to “industry practice”. It was not really industry practice, it was in fact a requirement of the Therapeutic Goods Administration. His Honour does not go on to deal with the significance of that. At 66 your Honours can see that the highest the consideration of this point rises in the trial judge’s consideration is that the standard was “useful . . . as informative as to the risks” and “useful in evaluating the defendant’s defence”.

It was far more than useful, with respect, your Honours, it was central to the applicant’s defence at trial, that he had complied with the standards, that there was nothing that had put it on notice of the risk that was said to have given rise to the injuries suffered by the plaintiff. Going on, his Honour returned to the standard at 73 and 74. This was to deal with the point that we raised at trial that the particular device that was said to have needed to have been included was a short-circuiting type device which was expressly precluded by the standard and again his Honour does not deal adequately with that point.

There is consideration at 77 of the other point we made about the complete absence of history of complaint and there we say that the trial judge, your Honours, has turned the matter on its head. Rather than looking, as he was required to do, for something that could have alerted the defendant to the need to do something else in respect of this machine, the need to take action, his Honour seems concerned to criticise the evidence about absence of complaint seemingly forgetting the point that his Honour made in paragraph 76 to the effect that “the burden rests on the plaintiff to establish” negligence.

Your Honours, I have not dealt at any length with the other question we seek to raise which is the inadequacy of the reasons of the trial judge. We have listed in the written submission a number of the matters. We say that there was significant evidence given at an expert level which is simply not dealt with by the trial judge. It went to the heart of the case that was sought to be put by Metron at trial and the absence of consideration of those matters means that it is not possible to determine the path of reasoning followed by the trial judge. I am happy, your Honours, to go through in - - -

HAYNE J: I see your time is up, Mr Dreyfus.

MR DREYFUS: It is indeed, your Honours. If the Court pleases.

HAYNE J: Thank you. We need not trouble you, Mr Meldrum, or you, Mr Ruskin.

In neither of these matters are we persuaded that there are sufficient prospects of success of an appeal to warrant a grant of special leave to appeal. Each application must be dismissed with costs.

MR MELDRUM: Can I make an application as to costs, if the Court pleases, briefly. Down below, at first instance, costs were on an indemnity scale. We delivered a Calderbank letter in respect of this appeal. We said costs on an indemnity scale for the plaintiff.

HAYNE J: Yes, what do you say, Mr Dreyfus?

MR DREYFUS: We do not accept, your Honour, that the letter is accurately described as a Calderbank letter and if there is to be consideration of this matter we would seek a direction that there be written submissions and that the letter itself be produced.

HAYNE J: If you persist in the application, Mr Meldrum, do you produce the letter?

MR MELDRUM: Yes, I do, your Honour.

HAYNE J: Under difficulty about constitution of the Bench in a few weeks, Mr Meldrum. Mr Dreyfus, what do you say? You had a chance to go away with your wallet intact, you chose not to.

MR DREYFUS: We did have a chance, your Honours, but - - -

HAYNE J: Come to the lectern, Mr Dreyfus, would you, and record this.

MR DREYFUS: We did have a chance, your Honours, to go away with our wallet intact but ordinarily a Calderbank offer is one which puts forward at least some reasons as to why the offer is an appropriate one. The authorities that deal with Calderbank offers both in this Court and in the Victorian Court of Appeal, none of which I have with me, have recently explained that it is necessary to put forward at least some reasoning to support the offer that is made and, without more, merely to offer to bear one’s own costs is not sufficient.

CALLINAN J: What reason could have been given except that you are likely to lose? You have had a trial, you have had an intermediate appeal, what could the other side say? Was the other side supposed to persuade you by letter “you are wrong”, “no, I’m right”, “you are wrong”.

MR DREYFUS: Ordinarily, one would expect to see something more than simply the bare offer to walk away.

CALLINAN J: You are grown-up people, this matter has been fully ventilated twice.

HAYNE J: You have had indemnity costs against you once already, is that right?

MR DREYFUS: Yes, that is so. The only other thing we would seek to add, your Honours, is to say that there is nothing unusual, nothing that warrants criticism of the conduct of Metron in persisting with its application for special leave, or its two applications for special leave, that could justify a departure from the ordinary rule as to costs.

CALLINAN J: Mr Dreyfus, what, by way of persuasion, could the other side possibly have said to you that would have induced you to pull out? What would your ideal letter that might have justified refusal of indemnity costs or justified a grant of indemnity costs have said? What was the reason that is missing?

MR DREYFUS: One could have put forward a proposition as to the poor prospects of success, that the application for leave perhaps pointed to particular defects which are matters which should have been - - -

CALLINAN J: You have written submissions by the respondent.

MR DREYFUS: Indeed, we have.

CALLINAN J: A written outline, they are compulsory under the Rules.
It would have just been a repetition of them, would it not?

HAYNE J: Yes, is there anything you wish to add, Mr Dreyfus?

MR DREYFUS: No, your Honours. If the Court pleases.

HAYNE J: In the matter of Metron v Victorian Workcover Authority there will be an order, special leave refused with costs.

In the matter of Metron v Windahl, in the particular circumstances of this case in which an order for indemnity costs was made below and in which the letter of 16 July 2007 was sent, the order will be special leave refused with costs. The costs are to be as on an indemnity basis as and from 16 July 2007.

AT 10.57 AM THE MATTER WAS CONCLUDED