State of New South Wales v West & Anor [2009] HCATrans 18 (13 February 2009)

Last Updated: 16 February 2009

[2009] HCATrans 018

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
No C 10 of 2008

B e t w e e n -

STATE OF NEW SOUTH WALES

Applicant

and

WAYNE KARL WEST

First Respondent

LESLEY ANNE WEST

Second Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 13 FEBRUARY 2009, AT 10.58 AM

Copyright in the High Court of Australia

MR J.E. MACONACHIE, QC: May it please the Court, I appear with my friend, MR P.D.A. MALLON, for the applicant for special leave and the applicant on the summons. (instructed by Crown Solicitor’s Office)

MR B.J. GROSS, QC: May it please the Court, I appear with MR B.J.E. COLLAERY for both respondents. (instructed by Collaery Lawyers)

FRENCH CJ: Yes, Mr Maconachie.

MR MACONACHIE: The summons, your Honours, is dated 12 February 2009. The second prayer for relief I require, that is, short service as it were, but Mr Gross and Mr Collaery being here I trust that will not be opposed, that is, the granting of that minor indulgence.

FRENCH CJ: Yes. Mr Gross?

MR GROSS: Yes, that is correct.

FRENCH CJ: Yes.

MR MACONACHIE: I move on the affidavit of Helen Deborah Allison sworn 10 February 2009. Do your Honours wish me to read that?

FRENCH CJ: No, we have seen the affidavit, thank you.

MR MACONACHIE: Your Honours, we asked but lately, and that is my fault, for the filing proceedings in October to be brought to Court, to be put before your Honours, when an application for expedition was made. If it has not reached your Honours, it is of no real concern, but for completeness - - -

FRENCH CJ: I have a copy of the transcript before Justice Heydon.

MR MACONACHIE: That will be more than sufficient, your Honours. There is another affidavit of Ms Allison’s but I will not trouble to rely on that. The reason that we make the application, and I hope it goes without saying, that is, for adjournment, and I hope it goes without saying that nothing that I say is in any way intended and should not be understood – I know it will not be by your Honours – to be any evidence of a lack of compassion for the events that have occurred in Victoria in the recent past. But this arises out of the Canberra bushfires. The case arises out of the Canberra bushfires of 2003. It is a matter of great importance, both in the particular case of Mr and Mrs West, the particular cases of the Andersons, which your Honours will have seen, and two and half thousand other cases or other plaintiffs who have recently filed, but some of whom have not served.

What brings us here today shortly put is this. As long ago as 15 May 2007 when the application to strike out Mr and Mrs West’s statement of claim and pursuant to the particular rule 425 of the Court Procedure Rules of the ACT for summary judgment, summary dismissal, it was asserted that the plaintiffs wished to amend their statement of claim to, the plaintiffs said, more clearly plead an occupation count.

Leave was sought to deal with that on the day. This is dealt with in the judgment of Justice Graham and, of course, Justice Connolly. Leave was not given for that amendment to be made on the run as it were. The matter came before the Court of Appeal last year, early last year. Again, no application was made either before, during or indeed after the Court of Appeal dealt with the matter until late in December 2008, a misunderstanding occurred and a document was filed, but later the order permitting it was - - -

FRENCH CJ: That is Justice Penfold’s order, yes.

MR MACONACHIE: On 4 February 2009 the Court had formally filed with it an application to amend. That application to amend the statement of claim, which of course was the focus of our case before Justice Connolly and the Court of Appeal, will be resisted. It will be resisted not only on grounds of unattractiveness, as Justice Heydon referred to in his judgment in October on the expedition application, it will be resisted on what I might call substantive grounds, such as the allegation of occupation and management by the National Parks and Wildlife Service of the Brindabella National Park. It will not, on our case, advance the plaintiffs one jot because the statutory patina, if I can call it that, will not attract the characterisation of the National Parks and Wildlife Service as an occupier for the Hargrave v Goldman rule. It would be futile for the ACT Supreme Court to permit there to be an amendment because in the statutory circumstances it will avail the plaintiffs nothing.

Your Honours will have read that assumptions were made both by those in the majority in the Australian Capital Territory Court of Appeal and by his Honour in the minority. That, in our submission, demonstrates that there is at least a very live issue on the question of amendment and whether or not my learned friends will succeed.

I say all of that to come to this point, your Honours. I submit that it is plain that the issues sought to be agitated in the High Court of Australia are of general importance and are of particular importance to the three categories of case that I referred to earlier; Mr and Mrs West’s case, those who have filed in the Anderson proceedings and those who have recently filed. It is a case of general importance that raises a point, that is, the liability of rural firefighting services and firefighting services generally, which has not been dealt with by this Court. It has been dealt with in the Court of Appeal in Britain in the Capital and Counties Cases favourably to the present applicant defendant.

FRENCH CJ: This may well be so, Mr Maconachie, but the real question is – putting aside the adjournment for the moment – you are inviting us to engage in what are essentially interlocutory proceedings. Obviously, there are still unresolved arguments about the statement of claim down the track. Why should this Court get involved in those, whether on an adjourned application or today?

MR MACONACHIE: Of course. Let me come to that. I thought you might be interested in that, your Honours, and it seems I was right. Ninety days of factual investigation occurred before a coroner, 90 days into these fires. A report of some hundreds of pages was written. It cannot be suggested that further interlocutory proceedings, such as interrogatories and the like, is going to advance the factual matrix - - -

FRENCH CJ: You are saying this from the Bar table. Is this something that somehow is put before us?

MR MACONACHIE: Yes, there is.

FRENCH CJ: And how does it get before us?

MR MACONACHIE: I am sorry, your Honour?

FRENCH CJ: How does this get before us or before the court below?

MR MACONACHIE: That material?

FRENCH CJ: Yes.

MR MACONACHIE: I think it is uncontroversial, but in any event, the length of the hearing before the magistrate is referred to, I think, in Justice Graham’s judgment. If not, it is in the 8 October affidavit. I will find it, your Honour. The reference to the report of some hundreds of pages is also either in Justice Graham’s judgment or in the affidavit evidence. But it is uncontroversial, in any event – at least that much of it is. We say that in those circumstances, as the Chief Judge in Equity, Justice Peter Young in Klein’s Case in the Supreme Court of New South Wales said, where you have a general rule such as the law is slow to impose positive obligations – and that is a rule which applies – Justice McHugh has said a number of times and other judges of this Court – to statutory authorities – the Chief Judge in Equity said, where there is such a general rule and only a narrow gateway, as it were, through it, it is incumbent upon the pleader to specifically and clearly plead the facts relied on.

In those circumstances and in the circumstances of all of the factual material having been raked over and carefully considered and argued, it is imperative, in our submission, that in a case of this importance both to the plaintiffs and to the defendants and the people of the two bodies politic that they represent, it is critical and important that the pleadings be precise and clear and raise the issue for determination, and these pleadings do not, and we adopt what Justice Graham says, in the circumstances they cannot.

In those circumstances, although it is unusual for this Court to get involved in preliminary issues, as it were, pleading issues and the like, it is not unknown for it to do so, nor the House of Lords in England; the great case of Donoghue v Stevenson, of course, was such a case.

FRENCH CJ: I do not think it went anywhere after that, did it?

MR MACONACHIE: It did not. Perhaps, your Honours, a signal to courts such as this that there is efficiency, effectiveness, cost saving and the like. This is a case that, if it proceeds, is presently estimated before the filing of the 2500 further cases, as it were, three months plus and it will tie up one quarter of the available – not this case, I am sorry. My learned friend is right, I have got to distinguish between Mr and Mrs West’s case - - -

FRENCH CJ: This case has got a pretty narrow factual compass.

MR MACONACHIE: It has got a very narrow factual compass, and it has not yet been married up, as it were, with those proceedings, the larger proceedings, the Anderson proceedings, and my learned - - -

FRENCH CJ: We know nothing about the larger proceedings other than that they are large in terms of numbers of plaintiffs, is that right?

MR MACONACHIE: Yes, your Honour, I understand that. But the issue that this case throws up, that is, in the legislative framework in which it sits, the State of New South Wales can be held liable on the facts pleaded, is central to a large amount of litigation both here and, one might suspect, as a result of the tragic events of the recent past. It is a matter of central importance to the volunteer organisations, largely volunteer organisation, that is, the Rural Fire Service, and to the manner in which it does its work and how it needs to consider its position, and so it is very important - - -

FRENCH CJ: Now, all of that is relevant to your application for special leave.

MR MACONACHIE: Yes, and, your Honour, I would argue, I do argue, that I can make it plainly obvious that it is a very important case, a very important point. The question is, is it an appropriate vehicle, is it an appropriate time in the proceedings? I recognise, we have always recognised, that that was going to be something that we would have to persuade your Honours about because you would be reluctant to interfere at this stage. But with this application to amend going on on 4 February, I could not advance an argument, a sensible argument, to this Court, and I hope I would not put forward an insensible one or a nonsensical one, we could never start to begin to persuade you that it was an appropriate case. The reason that we are put in that position is because it has taken more than or almost two years to make these foreshadowed amendments.

FRENCH CJ: Well, that may support a particular outcome or reservation of costs on this application, I suppose, if it were seen to have an impact one way or the other on the outcome of the application, but how does that otherwise warrant adjournment?

MR MACONACHIE: Well, this way, your Honour. If, as we will argue and as we frankly expect, we are successful on the application to resist the amendment, we can then come to this Court and face the music, as it were, on the question of is this an appropriate vehicle, but we will do so without the complication of the reality of that which has been threatened for two years and because the point arises both in this case and in other cases of complexity and difficulty, we, the State of New South Wales, have been anxious to try to find a mechanism whereby the plethora of litigation in which the State is involved, and the ACT government for that matter, can be more efficiently, quickly, cheaply and justly dealt with by getting a decision on the question, the central question, of whether or not the statutory authorities involved, in the circumstances that are pleaded, and in the circumstances that are known, can have a liability.

We will be contending that, as with the Capital and Counties Cases in Britain, it will be plain as a pikestaff that they cannot be so liable. If the only cause of action available to Mr and Mrs West is that which is presently pleaded and they have no right to amend, then it is a Donoghue v Stevenson summary dismissal application, in our respectful submission, because they either can or they cannot on the facts pleaded succeed and there is no point in having a trial because they cannot go beyond that which they have pleaded. That is the whole purpose of pleadings, your Honours, the whole purpose of having summary dismissal proceedings. If somebody pleads a case and says “Well, that is the best I can do.”, the Court can say “Well, it is not good enough even if you prove all of those facts”.

That is the situation we wish to achieve and that is the situation we believe we can achieve. But I cannot advance an argument of any sense on appropriate vehicle with the application made on 4 February 2009 hanging over our heads and that is why we should have an adjournment so that we can properly put our case.

FRENCH CJ: The question would be, really, whether you would be any better off in a special leave application with a more settled state of the pleadings, as it were. That is on the assumption of course that the - - -

MR MACONACHIE: Yes, I understand that, your Honour.

FRENCH CJ: Yes, all right.

MR MACONACHIE: We would be better off because we would not have to shadow of amendment hanging over us and we would be better off because - - -

FRENCH CJ: Sorry, yes I understand the position. You are saying that you would want to come back on this special leave application because you will have, as it were, blown the amendment out of the water and - - -

MR MACONACHIE: Well, we would have cleared the table, your Honours, as it were.

FRENCH CJ: - - - then you are just fighting on the same ground you thought you were fighting on?

MR MACONACHIE: Yes.

FRENCH CJ: All right, thank you.

MR MACONACHIE: That is how we put it.

FRENCH CJ: Yes, Mr Gross?

MR GROSS: Your Honours, we submit, as we have submitted in our written submissions, that this is not an appropriate vehicle and it is not an appropriate time for this Court to be considering a potentially important issue without the assistance of a trial record or decisions on the facts, on the matters fully argued out in front of any trial court or any intermediate court of an appellate nature.

The modification of the applicant’s position is essentially, as expressed today, offering the Court the prospect that we either come back
on another occasion on the old statement of claim or come back, if that application is successful, as we submit it must, with a second amended statement of claim, which is a much fuller document, but where this Court does not have the benefit of any scrutiny by any court of first instance or the ACT Court of Appeal of that second amended statement of claim.

But in any event, your Honour, regardless of making predictions about the amendment, and we submit there can be no doubt about that, the fundamental issue is that this is a case where examining duty of care really requires, for purposes of judicial clarity and proper analysis of the matter, a scrutiny of facts that go to such matters as control, allocation of resources, opportunity for suitability and the like, and that is classic trial material where the Court, as in many of the other duty of care case, has essentially had the benefit of a much larger volume of materials and the case only comes to the Court if in fact one or other of the parties has a case suitable after the matter has been through the trial and appellate process. Your Honours, I think that completes my submission, thank you.

FRENCH CJ: Thank you, Mr Gross. Mr Maconachie.

MR MACONACHIE: Very shortly, your Honour. The allegation of control that is referred to by my learned friend cannot be expanded beyond that which is pleaded and we say that is not good enough and Justice Graham agreed with us. Secondly, my learned friend says, allocation of resources might be the subject of argument and it has all to be argued out and decisions made and the like, that kind of case was eschewed before Justice Connolly, expressly, and his Honour says so in his judgment. It does appear at page 4, line 20 of the record:

Rather, their claim goes to claimed failure to extinguish the fire in its early stages.

I will see if I can find it quickly, your Honour, but there was a clear statement by his Honour that there was no case of resources allocation made. I do not want to take up your Honours time unnecessarily. No, I cannot find it immediately, your Honour, so I will not take up your time.

FRENCH CJ: Yes, all right. Thank you, Mr Maconachie.

This application for special leave arises out of the refusal of the primary judge to strike out the respondent’s statement of claim in proceedings pending in the Supreme Court of the Australian Capital Territory. That decision was supported by the Court of Appeal of the Australian Capital Territory. The decision related to interlocutory proceedings and the statement of claim in question was subject at all times to the possibility of amendment. As it turns out, that possibility has eventuated.

The applicant, confident in its ability to resist the amendment, seeks an adjournment of the application until the amendment is disposed of. That, however, does not affect the principal factor weighing against the grant of special leave in this case. Special leave would ordinarily not be granted in relation to interlocutory pleading decisions. The circumstances of this case, in our opinion, do not warrant a departure from that approach.

Special leave will be refused.

MR GROSS: We ask for costs.

FRENCH CJ: Mr Maconachie?

MR MACONACHIE: Your Honour, any order for costs made, certainly with respect to today, should take into account the fact that before Justice Connolly there was asserted a right and intention to amend and that has gone forward for nearly two years without being effected until 4 February. If the amendment had been moved for a long time ago and had been dealt with in the ordinary course, perhaps even before the matter went to the Court of Appeal, we might not be here today at all. Perhaps costs should lie where they fall, we would submit.

FRENCH CJ: Thank you, Mr Maconachie. The late amendment does not seem, in our view, to have impacted upon the substance of the application that has been brought before the Court, especially having regard to the contention that the amendment makes no difference to the legal position asserted by the applicant. Costs will follow the event. The applicant will pay the respondent’s costs.

MR MACONACHIE: May it please the Court.

FRENCH CJ: We will now adjourn to reconstitute.

AT 11.24 AM THE MATTER WAS CONCLUDED