Bevan v Coolahan & Anor [2020] HCATrans 19 (14 February 2020)

Last Updated: 18 February 2020

[2020] HCATrans 019

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S298 of 2019

B e t w e e n -

CHLOE BEVAN

Applicant

and

JAKE DAVID COOLAHAN

First Respondent

KURT JOHN O’CONNELL

Second Respondent

Application for special leave to appeal

KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 FEBRUARY 2020, AT 11.48 AM

Copyright in the High Court of Australia
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR M.J. MAXWELL, for the applicant. (instructed by Gerard Malouf & Partners)

MR K.P. REWELL, SC: If the Court pleases, I appear with my learned friend, MR B.R. WILSON, for the respondents. (instructed by Hall & Wilcox Lawyers)

MR WALKER: If it please the Court. Your Honours, when this Court decided Miller v Miller it was adjudicating on governing law, which uniquely in the Federation was not enhanced, complicated, affected by what I will call Civil Liability Act provisions, a matter sufficiently significant in the question of what I will call illegality affecting the enforcement of a breach of a duty of care for this Court to have noted that specifically in its reasons in Miller v Miller.

Your Honours will forgive me if from time to time I use the expression “common law” because it is to remember that this is a case where the competition was between which of two well‑known statutory vast modifications of the common law would apply. Would it be section 54, to which I will come – our contention, ironically so as to permit what I will call common law recovery - or would it be contributory negligence, which of course modifies the common law in a way that is massively important and in social terms, in the field of personal injuries litigation, particularly arising from motor vehicle accidents, it also – contributory negligence ‑ has an intersection, at least in policy terms, with the questions raised by that particular and piquant form of illegality which is the criminality flowing from joint criminal enterprise.

It is not surprising, therefore, that in the reasons for the – in the majority against us in the Court of Appeal – in the passages to which we have drawn attention in our written submission there is an understandable acknowledgement, indeed exposition, by each of Justices Basten and Leeming of not merely the significance of the issue, but of its difficulty. We add, before we come to the terms of section 54 itself, we add of course the difficulty of construing section 54 in light of section 3A.

These are, in our submission, basally important issues concerning the effect of the Civil Liability Act provisions, not confined to New South Wales, in the context of the common law as adumbrated by this Court in Miller v Miller in its very important social impact on the availability of compensatory damages where somebody has done that which, if there is a duty, would be negligent by reason of what I am going to call the plethora of ways in which one may commit offences.

Now, we acknowledge as the written materials in the application book make clear, and as the, with respect, cogent dissent of Justice McCallum emphasises, that we have an anterior point that we must pass for this to be a fit case for special leave. Are we able to say that the section 54 controversy was decisive, and for the reasons that Justice McCallum explains and which we have tried to distil in those parts of our written submissions – our application on pages 214 to 215 of the application book - the answer to that, properly approaching the course of trial and appeal argument is that, yes, section 54 would be decisive.

That is for the simple reason that the argument run at trial by a combination of pleading and accepted course of argument was that it was provisions of the Drug Misuse and Trafficking Act that provided the platform for a Miller v Miller argument. We enjoyed success in the Court of Appeal on the application of Miller v Miller, if that was the way which the case was to be determined, with respect to the invocation of that legislation.

GORDON J: Does that raise the broader question of what is the joint criminal enterprise?

MR WALKER: Yes, it does. This is a case which, on any view of it, but only depending upon the way in which contest may be framed between the parties in the event of an appeal – I am not sure how much difference there would be - on any view of it there has to be an understanding - if Miller v Miller in congruity is relevant there has to be an understanding of how joint criminal enterprise feeds into an assessment by the court of that weighty and, we think, novel policy question.

When I say “policy” I do not mean your Honours becoming acknowledged but illegitimate legislators, far from it. I mean the policy of the law which extracted, as this Court did, partially – that is without consideration of the Civil Liability Act in Miller v Miller, may fall for consideration in working out the ramifications of the possible outcomes to the argument about section 54.

It is unquestionably the case that this is a vehicle for understanding the extent to which joint criminal enterprise, informing a driving offence by rendering the passenger complicit in the offence of which she was a victim, in effect, whether or not that could possibly satisfy the coherence question, whether joint criminal enterprise principles are now such that you can now be simultaneously criminally liable and a luckless victim, and if you are a luckless victim does it suffice, against the background of sections 3A and 54, for those circumstances to deprive you of a right to compensatory damages.

While on compensatory damages your Honours will have noted that that second familiar form of statutory modification of the common law would not be in question in this case. We are mindful of the contingent, if I may put it that way – what would they have done but for – assessment of a 50 per cent contributory negligence and do not of course offer at special leave or on a proposed appeal any contest against whatever the respondent may seek with respect to cleaving to a 50 per cent. That is a matter for the respondent.

Your Honours the point concerning section 54 lends itself to some phrasing which is various, and one of them is the, I think now unfashionable, covering the field figure of speech, but the intent of the interpretation question, which raises questions of the policy of the law, is plain, notwithstanding the various phrases that may be attributed to it. Plainly, as expressed within the provision of section 54 itself, subsection (2) reverses an effect of subsection (1).

Now, that is my paraphrase as to its effect. Its intended legislative result does not apply, must be taken to mean the outcome provided for in subsection (1) does not govern, in the case of the subset described in subsection (2), as is plain from the reasoning of the Court of Appeal, which we respectfully adopt in this regard.

Subsection (1) provided a general rule ‑ rather punchily summarised in the subheading to the section – and subsection (2), without any hint of this in the punchy heading to the section, says “but not always”. The policy, perhaps, public policy in a broader sense, perhaps the policy of the law - it is not quite clear and it does not matter - that one can see from that pattern of legislation in section 54 is that if a plaintiff is suing for injuries which bear the requisite relation with the plaintiff’s criminal offending, then there will not be recovery.

Now, your Honours have noted, particularly in the reasons of Justice Basten, but in all the reasons on this point, that there are difficult questions, not yet determined in this Court, difficult questions about section 54 as being one of the number of provisions in the Civil Liability Act that may not actually plainly describe what they are doing.

Plainly enough the same effect is achieved by section 54 as would at common law – that is unaffected common law – have been produced by the holding as sought in Miller v Miller that there was no duty of care. It is the same outcome that section 54 produces, but not in those terms. Whether that is significant, in our submission, is an important aspect of the critical question of interpreting and applying the Civil Liability Act to the substrate of the common law in the absence of such provisions.

Subsection (2), as I say, belies the simplicity of the slogan which is the subheading for the provision by saying, in effect, well, criminals – as it is rather directly put – criminals may recover, again, my paraphrase, if the defendant is a criminal. One can see, whether in tabloid or in other terms, why subsections (1) and (2) might be thought to be describing distinctly different positions from the point of view of the laws imprimatur or implied approval or implied non‑disapproval of the conduct of the plaintiff.

So, for example, subsection (2) may be thought to be the outcome of a policy sought to be articulated by its provisions that it is more important that a criminal who has caused loss can be civilly liable as well as criminally liable for the conduct that causes that loss than that a plaintiff, being a criminal, should not recover. So subsection (2), we submit, is plainly intended to be a subset of the cases that would otherwise be covered by subsection (1) and designed to produce an opposite outcome.

Now, it will not produce an opposite outcome if there is an answer at the beginning, middle and end of that interpretation exercise that says but the common law sits there anyhow.

GORDON J: Which is a 3A question.

MR WALKER: Yes. Now, your Honours will have noted that on no view is there what might be called a plain or straightforward reading of section 3A to produce this rendering of section 54(2) incapable of actually affecting the position. One of the reasons for that is that section 3A itself uses a description which, as discussed in the reasons below, raises questions which are apt for this Court to consider.

KEANE J: But why would one not construe 3A as providing that to the extent that civil liability would not be upheld against the defendant under the law – the common law – why would one not then look at 54 and say, well 54(1) is an additional protection. That additional protection is denied by subsection (2) where it applies, but otherwise the common law determines.

MR WALKER: Well, that is, of course, the question ‑ ‑ ‑

KEANE J: But why is it not the rather obvious answer to the question?

MR WALKER: There is a two‑stage answer, your Honour. The first is it requires a characterising in section 3A terms of section 54. Section 3A requires the character of a provision of this Act that gives protection from civil liability. That is section 54(1). It does not limit, that is section 54(1) does not limit the protection from liability given by another protection to this Act –does not arise in this case, or by another Act, does arise by this case, or law, the common law of Australia, Miller v Miller. There is no occasion for the application of section 3A because section 54(1) is not in question. It is 54(2) that is in question, a provision that does not give protection, that is ‑ ‑ ‑

KEANE J: But all 54(2) does is disapply 54 (1).

MR WALKER: And thereby, in that respect, its provisions are not provisions that give protection from civil liability. That is why section 3A does not apply on an ordinary reading of the words of section 3A. The drafting of the Act is, if I may say so, not immune from gentle or otherwise suggestions as to how it might have been improved in a number of respects. This is a respect that has not received any attention from this Court.

On any view of it a less than ordinary or straightforward reading of section 3A, particularly the expression “a provision that gives protection from civil liability”, does not limit in order to reach the conclusion that either implicitly or in some respect explicitly the majority in the Court of Appeal have produced. It is, in our submission, not possible ever to say that 54(2), as a matter of ordinary English, is a provision that limits. It is the opposite. It is a provision that prevents a limit, and it is for those reasons that a relatively heroic step needs to be taken and is not justified on the reasons below and is important for this Court ‑ ‑ ‑

KEANE J: If we are going to talk about heroic steps, I think it would be pretty heroic to conclude that the effect of this Act was to reverse the decision in Miller v Miller in the case where you had criminals on both sides of the record.

MR WALKER: Your Honour, I am not up to the task of seeking to rebut the sting of what your Honour has put to me. Yes, there is an undoubted incursion on Miller v Miller – this is before I get to the pleading point – on Miller v Miller that lies behind the argument I want to put about section 54. There is no doubt about that. We are not saying that section 54 sits with Miller v Miller. We are saying that section 54(2) ought to be read exactly as your Honour Justice Keane has raised with me, as if because subsection (2) is intended to reverse the outcome produced by subsection (1), if that carries with it that Miller v Miller does not preclude the cause of action or enforcement of it, then so be it, that being the outcome of the statute.

The alternative of course is to treat subsection (2) as nugatory because of Miller v Miller. That is to reverse the proper relation between the common law – the judge made law and statutory law. It is for those reasons, in our submission, that interesting, difficult and important
questions arise about the relation between section 54 and Miller v Miller, that really means between statute and common law, and it leaves only the question about the way in which the majority in the Court of Appeal expanded the inquiry so as to render these matters necessary, namely to include the motor offences and not merely the drug offences for the purposes of the relevant complicity, which would brand my client in statutory terms as a criminal.

Justice McCallum’s proper analysis does not involve differing on any matter of fact from the way in which the majority, particularly Justice Leeming, determined that question against us. The fact is, as the transcript we have pointed to in our written reply and included in the book makes crystal clear, there could not have been a more plain, if I may say so, characteristically plain acceptance by my learned friend below, at both levels, that it was drugs and not driving which was the foundation of the joint criminal enterprise complicity criminality argument. May it please the Court.

KEANE J: Yes, Mr Rewell.

MR REWELL: Your Honours, my learned friend referred to the section 54 controversy as being decisive as well as important and a matter that should be of interest to this Court. In one sense it was decisive, that is, if the finding had been that section 54 excludes the operation of the doctrine of joint illegal enterprise and reverses the effect of Miller, then it would have been decisive because my client could not rely on section 54 and that was made plain from the trial through the appeal, because of section 54(2). Obviously the first respondent was guilty of an offence or offences, namely various driving offences.

But what my learned friend in his submissions has not made clear is why the analysis of the majority of the Court of Appeal is wrong, despite the fact, as Justice Leeming points out at paragraph 72 at application book 184, that the applicant’s primary submission at the appeal, as well as the respondent’s primary submission was that section 54 had no real application in this case because ‑ ‑ ‑

GORDON J: The argument being put was to do with damages and not liability.

MR REWELL: Yes, because it cuts in at the level of damages, not duty of care where Miller v Miller deals with duty of care, and that was the common position in terms of the primary submission made by both parties as Justice Leeming points out. Now, of course, there were two grounds of appeal which raised the question whether section 54 does exclude the operation of the common law and Miller v Miller and all three judges referred to section 54 despite its lack of prominence.

Justice Leeming in particular made a very detailed analysis of all of the arguments that could be advanced both ways as to why section 54 may or may not exclude the common law including Miller v Miller, including arguments relating to section 3A. To a significant degree Justice Leeming played devil’s advocate and took each of the arguments advanced in the respondents’ case as to why section 54 does not exclude the common law and dealt with each of them, and found reasons to disagree with some of them.

But, overall, having analysed all of the relevant factors, Justice Leeming found that section 54 does not exclude the common law. Justice Basten did so a little more briefly, but after careful consideration. What is missing in the submissions made here is how or why the upshot of those analyses was wrong. Why cannot section 54 coexist with Miller v Miller - because they deal with different starting points - one with duty of care, the other with damages.

As Justice Basten pointed out, section 54 will rarely have any significance in a motor accident case because in almost every motor accident case the basis of the cause of action is that the defendant was guilty of negligent driving. That engages section 54(2) and disengages section 54(1). That was appreciated obviously by the respondents from the outset in this case.

So while there may be points of interest in the words of section 54 and for that matter section 3A, no real suggestion is made as to why the conclusion reached by Justices Basten and Leeming is wrong, that is why an appeal on that basis would have any prospects of success and Justice McCallum did not reach a concluded view on that question.

This case, of course, was very fact dependent, and the facts were hopefully rather unusual. While it was not suggested by the respondents that Ms Bevan was guilty of driving offences as the Court of Appeal – at least the majority ultimately found that she was - it was always the respondents’ case that she was complicit in the whole escapade, including the fact that whenever the vehicle was driven it was driven unlawfully because the only occupants of the vehicle were four young persons all affected by illicit drugs.

KEANE J: And driven with a view to procuring some more.

MR REWELL: That is right. The primary judge found that more than being a willing member of this enterprise ‑ ‑ ‑

GORDON J: She provided the capital.

MR REWELL: She was, to use the primary judge’s words, the ringleader; it was her suggestion. The first stop was at her home so that she could obtain some collateral for the purchase or acquisition of the further supply of drugs. So she was a prime mover – or the prime mover – in the whole enterprise, and that had to be significant because all joint illegal enterprises are to a greater or lesser extent, often greater, very fact dependent and this case certainly was.

NETTLE J: You say she was a participant in a joint criminal enterprise which included driving under the influence of the drug?

MR REWELL: Yes, and which ‑ ‑ ‑

NETTLE J: Because it was a foreseeable possibility in the course of carrying out, getting drugs and bringing them home.

MR REWELL: Well, it was more than a foreseeable possibility. It was an inevitable part of the enterprise and Justice Basten put this in words of that kind. Once it was decided by her that a car would be used to progress on a journey that went from the friend’s home to her home to the dealer’s location, by car, it did not matter who drove – all of them were incapable of driving lawfully because all of them had been using drugs for hours. So, all of them – any of them were going to be guilty of an offence under section 111 as soon as one of them sat behind the steering wheel and started the engine.

NETTLE J: Would it be enough if the driver had been but hardly at all affected by drugs?

MR REWELL: It would be enough because section 111, as your Honour would be aware, makes it an offence to drive after ingesting such drugs. It does not matter whether the driving is ‑ ‑ ‑ ‑

NETTLE J: But you would be in more trouble there because it would not necessarily ill accord with that that she had the ability to sue for negligent conduct in the carriage of the vehicle.

MR REWELL: Perhaps not.

NETTLE J: You need 112, surely, to get home.

MR REWELL: Perhaps. But the facts here were clear about all of that.

NETTLE J: Okay, but it is 112 that gets you there, not 111.

MR REWELL: We say either, but your Honour is right it does not matter for the purpose of the argument, because as I said before it did not matter from the outset who sat behind the wheel. There was an inevitably of offences under sections 111 and 112.

GORDON J: Is that consistent with the sort of venture analysis in paragraph 91 of Miller, that is one looks at the whole of the circumstances?

MR REWELL: Yes, that is right and it would be very curious if one were not to take into account the whole of the circumstances. That would be very curious. We say that paragraph 91 of Miller makes it very plain that the whole of the circumstances are to be taken into account. That is why I started this part of the discussion by saying this is a case that was very fact dependent.

There were challenges made in the Court of Appeal to some of the findings of fact by the primary judge, particularly those critical to this part of the discussion. Those challenges were only scarcely pursued and were unsuccessful and they are not pursued here. So the facts as found by the primary judge stand.

The only other point that is raised in the application is that there was some denial of procedural fairness in not forewarning the applicant that the court might consider that she was guilty of the driving offences. We say two things about that. Firstly, the finding that she was guilty of the driving offences we say was not necessary to the outcome for exactly the reasons that we have just discussed. Secondly, from the very beginning to the end, it was contended on behalf of the applicant that the legal responsibility for the driving offences fell solely and uniquely to the person actually behind the wheel, namely the first respondent. That was her position at trial and on the appeal, and both Justices Basten and Leeming noted that that was her position.

What is not made clear or at all in the submissions is what other argument would she have raised. That was her argument. It was unsuccessful. What other argument would she have raised? There is nothing that tells us what other arguments she could or would have raised. Justice McCallum suggests that perhaps she would have run her case in a different way, but does not say how, or not at all. In other words, presumably, if confronted with that defence in terms she may have decided not to bring a case at all but ‑ ‑ ‑

NETTLE J: I suppose she might have said that the actual owner of the motor car had driven perfectly competently, notwithstanding he had the same amount of drugs as the chap that took over.

MR REWELL: She did say that. But that did not succeed either. She did say that up to a point the car was driven responsibly.

NETTLE J: I mean there is a bit of a difference, is not there, between an offence of joy riding, which necessarily involves speeding away from the police and therefore dangerously driving, and an offence of driving to some unspecified degree under the influence of drugs. I mean, let us say one fellow has two beers. You might say he is to some degree under the influence of the beer. But it is hard to accept, I should have thought, that for that reason someone who gets into the car with that degree of knowledge is deprived of the ability to sue him for negligence in driving so dangerously as to break half the bones in his body.

MR REWELL: But the facts here rather belie that analysis ‑ ‑ ‑

KEANE J: In any event, we are not talking about departures from the standard of care. We are talking about the existence of a duty of care.

MR REWELL: Yes. The analysis here – the factual analysis here rather belies that, because here not only had all four imbibed in drugs for hours before the commencement of the journey, but having acquired a fresh supply, they stopped at the Bunning’s car park and all four imbibed further. So, in the end, it would not have mattered who drove. The risk was by then intense, and the risk came home and came home quickly, perhaps of little surprise. So, as I say, in the factual circumstances here, that issue is rather more theoretical than we would respectfully submit real. Unless the Court has any questions for me, those are my submissions.

KEANE J: Thanks, Mr Rewell. Mr Walker, any reply?

MR WALKER: Yes, your Honours. Your Honours as to the question whether things might have gone differently so as to add substance or to give substance to our complaint about the issues upon which the majority decided the case below, your Honours will have seen, and we stress, the simplicity and persuasiveness of the way in which Justice McCallum illustrates, not exhaustively, the problems that arise in treating the case as thoroughly ventilated on issues newly raised in the judgments in the Court of Appeal so far as exploration at trial was concerned. That will be found at pages 206 and 207 of the application book, in passages with which your Honours would be familiar.

The Miller v Miller test itself requires an understanding which focuses on the specific criminalised conduct, or illegal conduct in question, and in our submission had there been the opposite position taken at trial, or even, perhaps, subject to Suttor v Gundowda on appeal, concerning resort to driving offences as the foundation for the joint criminal enterprise criminality on the part of the plaintiff, then it is particularly straightforward to understand how the course of the whole case may have been different.

That suffices to give substance to our complaint which means that we have suffered judgment in the Court of Appeal on a ground to which facts which could have been presented or argued differently at trial, let alone in the Court of Appeal are material. That, in our submission, does cry out in the particular case for this Court’s intervention.

In relation to section 54 not playing a part, as it were being a late entry, an artefact if you like of considering a special leave application, there is nothing in it at all. Your Honours have seen in the application book at page 241, paragraphs 6, 7, 8, 9 and 10, making it clear how the course of litigation from trial onwards expressly invoked section 54 precluding Miller v Miller as being one of the contentions to produce success for our client. It was always in play, to use the jargon.

Now, there is a reference by Justice Leeming to it being better had it been pleaded but, with respect, you could hardly say that the application of the general law of the land – section 54 – is something that if not raised might take by surprise. It is not like a limitation period that needs to be pleaded, for example. It is plain to demonstration of course that on the facts raised in the pleadings there would be the possibility of criminality on both sides.

The clarity with which the respondent properly continues to accept that really only emphasises that section 54 always had to be considered. It is the law. It is not optional. It does not depend upon being pleaded. There was a time, halcyon days of Judicature Act pleadings, that you would not plead such matters. You would plead the material facts and the law would then be applied to those facts, with an exception, not necessarily beneficially developed, of making sure that your opponents were informed about matters that might otherwise take them by surprise. But that would never be section 54, not in these proceedings.

Now, your Honours, the drug enterprise, that is, the one where Miller v Miller was said to be engaged against us in the courts below, until the judgments in the Court of Appeal, would not have produced a Miller v Miller outcome fatal to us. That is why there is significance. Section 54 is critical, however, if the driving offences are permitted to
provide the threshold for Miller v Miller in argument because section 54 is apt to throw Miller v Miller out of consideration.

My learned friend said on that point, which is the point of most obvious general public importance in the case we propose for an appeal, that we have not said why the majority was wrong but, with respect, we have, I hope quite straightforwardly, both in writing and what I said in‑chief today.

To construe the Act as if the common law, always amenable to legislative effect or affectation, as the majority has done, prevents subsection (2) reversing the intended outcome, that is the intended reversal of the intended outcome of subsection (1) or, to put it another way, subsection (2) is rendered quite otiose.

Section 3A, for more abundant caution, as we have made clear, would not alter that plain reading of section 54 because of the matters I referred to in‑chief, namely that the effect of section 54(2) simply cannot be described as the kind of provision to which section 3A is directed. May it please the Court.

KEANE J: Thanks, Mr Walker.

The appeal foreshadowed by this application does not enjoy sufficient prospects of success to warrant the grant of special leave to appeal. The application will be refused with costs.

The Court will adjourn until 10.00 am on 11 March in Canberra.

AT 12.29 PM THE MATTER WAS CONCLUDED