Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2021] HCATrans 74 (16 April 2021)

Last Updated: 19 April 2021

[2021] HCATrans 074

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S208 of 2020

B e t w e e n -

EMILY JADE ROSE TAPP

Applicant

and

AUSTRALIAN BUSHMEN’S CAMPDRAFT & RODEO ASSOCIATION LIMITED ACN 002 967 142

Respondent

Application for special leave to appeal

GAGELER J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 16 APRIL 2021, AT 10.25 AM

Copyright in the High Court of Australia
MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friends, MR D.F. VILLA, SC and MS J. HILLIER, for the applicant. (instructed by Commins Hendriks Pty Ltd)

MR J.E. SEXTON, SC: May it please the Court, I appear with my learned friend, MR D.A. LLOYD, SC, for the respondent. (instructed by RGSLaw)

GAGELER J: Mr Jackson.

MR JACKSON: Thank you, your Honour. Your Honours, there are ultimately three relevant issues in the matter. One turns on a simple case of want of due care, the second turns on obvious risk under section 5L of the Civil Liability Act and the third turns on the application of section 60 of the Civil Liability Act.

Your Honours, could I just say by way of preliminary observation, the majority, as described by, for example, Justice Payne at paragraph 24, page 95, took the view that we had never clearly identified the way in which it was alleged that the surface had deteriorated or how it caused the plaintiff’s horse to fall. In our submission, it was not necessary to do so, as I will seek to demonstrate in a moment. The evidence clearly established that the surface had deteriorated to such an extent that it was unsafe to the knowledge of the respondent.

Your Honours, in dealing with want of due care, central to the case was whether there had been a want of due care on the part of the respondent and that is in the respects referred to at page 140 by Justice McCallum in paragraphs 169 and 170. The issue was dealt with by her Honour, again at page 140 – if your Honours excuse me a moment, technology is beating me, I think.

GAGELER J: Perhaps 141 and following.

MR JACKSON: At page 140 in paragraphs 171 to 183. Your Honours, I will not attempt, of course, to go through them one by one now, but your Honours will see that at paragraph 170 in the fourth line, she refers to the critical issue and then in the various paragraphs set out there that go through to paragraph 183 she sets out a number of reasons why there had been, in our submission, she said, a strong case.

It was a strong case because the uncontradicted evidence was that the horse slipped, a matter necessarily related to the condition of the ground, and that that was a cause of the fall. You can see the evidence about what actually happened is in a very short compass. Your Honours can see it in the primary judge’s reasons at page 15, paragraphs 27 to 31, where there was evidence of the plaintiff, her sister and her father, all of whom expressed what had happened as being that the horse slipped.

EDELMAN J: Mr Jackson, there was evidence, as I recall, that there were four previous falls prior to this, at 6.14, 6.22, 6.40‑ish and then 6.50‑something, and that this fall occurred at 7 o’clock.

MR JACKSON: Yes.

EDELMAN J: Was there any evidence that the organisers were aware of some or all of the four previous falls?

MR JACKSON: Your Honour, could I say first of all, in the report of the day that was made out by the association it records actually there being seven falls. There was some debate about whether it was four or seven. But the answer was yes, because the discussions that took place between Mr Shorten and the other member who spoke to him referred to there being falls.

Now, undoubtedly, it may be possible to say these were not actually tied to the condition of the ground, but the whole point of it – it has been discussed by Justice McCallum at some length - was that you have a situation where there was an unusual number of falls, and, indeed, when you come to the actual evidence of Mr Shorten, who was the only evidence of events - called by the respondent, that evidence was damning. Your Honours, to dismiss it as “hindsight”, as did Justice Payne at paragraph 51, page 104, was not to give it the weight which it deserved.

We would submit that – the dismissal of our claim in negligence was one where we did not receive the benefit of a rehearing by the Court of Appeal. Your Honours, in that regard, could I refer to our application at page 153. I wanted to refer your Honours to paragraphs 14 to 21. I will not read them out, but could I emphasise also particularly paragraph 20 on page 154. Pausing at this point, it ‑ ‑ ‑

GAGELER J: Are we to take that as encompassed within your proposed ground 1?

MR JACKSON: Yes, I think so, your Honour.

GAGELER J: Yes, thank you.

MR JACKSON: Yes, your Honour. Your Honours, it has to be demonstrated, of course, that the want of due care gives rise to a cause of action. That is the second point. That is the Civil Liability Act section 5L, and the applicant’s case failed because it was held that in terms of section 5L of that Act, which your Honours will see at page 162, her injuries were the materialisation of an obvious risk of a dangerous activity - dangerous recreational activity engaged in by her. Obvious risk, as your Honours will see set out at page 160, is one that, in the circumstances, would have been obvious to a reasonable person in the position of the plaintiff.

EDELMAN J: Is the point of law you are raising in relation to this point one which concerns how a court should characterise the risk, or the appropriate level of generality at which a risk should be characterised for the purposes of assessing obviousness of risk under this provision of the Civil Liability Act?

MR JACKSON: Yes - your Honour, I appreciate the Court had an application in Singh, I think recently, which it dismissed in which those aspects were discussed in the course of the argument. But the case comes down, in the present case, to the fact that one has to look at obvious risk, as the provision says, from the point of view of the person who is injured. This was a case where, to put it shortly, persons in the position of the applicant were not responsible for the service of the proceedings – I am sorry, the place in which the activity was taking place.

EDELMAN J: I mean, you may be right about this issue about obviousness.

MR JACKSON: Yes.

EDELMAN J: But the legal point is really about what is the risk itself and that is the point at which the trial judge has one approach and the Court of Appeal has two other approaches.

MR JACKSON: Yes. Your Honour, the approach taken by the trial judge does not seem to have been adopted by anyone in the Court of Appeal. That having been said, in the Court of Appeal the majority judgment seemed to consider two different categories, two possible ways of characterisation of it, but to say in either case it was an obvious risk.

In our submission, where there was error was in not taking into account the matter from the point of view of the plaintiff, and it is the plaintiff’s position that has to be considered in determining “relevantly obvious”. In dealing with that, this was a case where, so far as she was concerned, she had no knowledge of the prior falls, she was not aware of the situation – as was the respondent - and those are matters which could be taken into account, in our submission, in determining whether it was obvious to her in circumstances where, as your Honours will see set out in pages 138 to 139 in Justice McCallum’s reasons, paragraphs 164 to 166, this was a matter entirely for the respondent.

Your Honours, we would submit that her Honour was right in saying, as she did at paragraph 154, that whether a risk was obvious is likely to be informed by consideration of the mechanism of the injury from which it can be ascertained who was in a position to observe or control the circumstances in which it occurred. We would submit that it is a little difficult to understand how, to use the words of Justice Payne, a risk that is said to be:

clear to a reasonable person . . . by reason of the number of falls -

could be said to be obvious to a person in the position of the plaintiff who had no knowledge of falls. We would submit that the reasoning in the Court of Appeal conflates the risk with the circumstances that gave rise to it.

Your Honours, I know your Honours have heard about Justice Leeming’s rabbits tripping in burrows, but may I just say that the majority failed to articulate what was the relevant risk of harm. The Court of Appeal has not indicated how the applicant’s case is in a different category from the hypothetical case of the horse tripping in an unknown rabbit burrow, which was described by Justice Leeming in Singh - you will see it referred to at paragraph 130 of this case, page 127.

Your Honours, could I come from that to the Australian Consumer Law issue. Section 60 of the Australian Consumer Law is at page 165. Contravention of its terms gives rise to a remedy in damages and you will see at pages 166 and 167 ‑ ‑ ‑

GAGELER J: You have a procedural problem at this point, have you not, Mr Jackson?

MR JACKSON: In our submission, the answer is no and that the Court of Appeal was in error in taking the view that it did. It is an important question, your Honour, because all it comes down to is that the words “in contract” in the statement of claim – perhaps I am putting it too shortly. We would submit the two bases on which the Court of Appeal said this issue could not be raised were wrong and were wrong in a serious way.

This was the case under – to put it in broad terms – judicature -style pleading. All that you had was that every element necessary to establish a cause of action under section 60 was there. I will take your Honours to it in just a moment. The only problem with it was that it additionally – perhaps because people thought of it still under the Trade Practices Act – there was a reference to a contract. Your Honours will see the predecessor to section 60 was section 74(1) of the Trade Practices Act. It required, it said, in every contract for the - implied a warranty of a rather similar kind.

Now, the absence of a contract, your Honours, meant that the provisions that were relied on to defeat a claim could not apply. One sees that those two provisions – the sections, 275 first of all of the Australian Consumer Law, where you will see at page 52, it is set out – and your Honours will see that subsection (b) only applies to a case where there is a contract.

You will see also that section 139A of the Competition and Consumer Act is referred at page 52, paragraph 168. Subsection (a) makes clear it too applies where there is a contract. All of the elements of section 60 were satisfied, yet the claim was not allowed to be made on appeal. One basis was that the issue had not been raised below. Your Honours will see that referred to ‑ ‑ ‑

EDELMAN J: Do you accept that the issues that would be raised by section 60 would be materially the same as the issues raised in the context of the breach of duty?

MR JACKSON: Yes.

EDELMAN J: But shorn of the restrictions under the Civil Liability Act.

MR JACKSON: Yes – to put it shortly. Your Honour, the issues does, if I may say so, seem to have been run below.

EDELMAN J: It is run below by running the breach of duty claim below because if they are identical cases if you run one then you have run the other.

MR JACKSON: Of course, your Honour. You can see, if one goes to page 58 in the primary judge’s reasons at paragraphs 186 to 187 - she says in 186 that there was not a contractual relationship. Then at 187:

case in contract must fail –

At 188:

For the sake of completeness I will deal in short compass with the submissions made by the parties in respect of the operation of the ACL, despite my finding that there was no contract.

Then one sees, your Honours, the reasoning, which is at paragraphs 188 to 192. You will see at 192:

The plaintiff’s case in contract and statutory guarantee fails.

Your Honours, the statement of claim did contain all the allegations relevant to the cause of action.

GAGELER J: You have given us this separately, Mr Jackson, have you?

MR JACKSON: I am sorry?

GAGELER J: The statement of claim – you have given it to us separately?

MR JACKSON: Your Honour, I am sorry, but a supplementary application book I think was provided for the Court which has the pleadings in it.

GAGELER J: Yes, thank you.

MR JACKSON: Your Honours will see it contained all the allegations relevant to the cause of action. Its only failing was to put the claim as one in contract. If I could go first - the page numbers are at the top of the page in bold. You will see on page 5 under “Relief Claimed”:

1. Damages pursuant to s236 and s237 of the Australian Consumer Law –

I have to say, your Honours, similar but wrong provisions are nominated there. It should have been 267(1) and (4). You then see the factual allegations under the heading “Material Facts” go up to paragraph 82 on page 11. You will see there the heading “Contractual Claim” at page 11, and then under that heading there is paragraph 85 on page 12. It says:

Pursuant to s60 . . . it was a term of the agreement –

et cetera, and then at page 86:

In breach of its agreement.

Then following, on page 13, you have the heading “Negligence Claim” and the facts relating to that. The further amended defence your Honours will see at page 23, and could I refer particularly to page 33 where it deals with those allegations. Your Honours will see at page 33 in paragraphs 83 to 85, in 83A it says:

the cause of action is statute‑barred and extinguished.

In paragraph 85 it says:

the Trade Practices Act 1974 applies . . .

(b) otherwise denies the paragraph.

Your Honours, the amended reply – I am sorry, I see the time.

GAGELER J: You can finish this point, yes.

MR JACKSON: The amended reply is at page 19. You will see at the bottom of page 19, paragraph 5, which goes on to allege in b that the Competition and Consumer Act applies. Your Honours, the worst thing that can be said about the pleading is that it incorporated an unnecessary allegation. The other basis on which the issue was not allowed to be raised is set out in paragraphs 115 and 118 of the Court of Appeal at page 123. It is that:

the Court cannot now be satisfied that no evidence could have been adduced -

For reasons known to itself ‑ perhaps it was thought the trade practices provision was applicable – the respondent went out of its way to establish successfully that there was no contract between the two parties. If reliance was to be placed on some other contract than the one that it had put down, then surely that itself would be a matter that would have to be pleaded by the defendant. No such contract was pleaded.

Finally, your Honours, any suggestion that further evidence could have been adduced must have some rational basis. This is not a case where there was simply no evidence of relevant conversations, documents or payments of money. They were extensively pleaded and opened, cross‑examined on and documents tendered. In our submission, for the reasons which we have set out at application book page 158, paragraph 42, this is an appropriate case for the grant of special leave.

GAGELER J: Thank you very much, Mr Jackson. Mr Sexton. Mr Sexton, it might be helpful if you could focus on ground 3 first, or proposed ground 3.

MR SEXTON: The section 60 point, your Honour?

GAGELER J: Yes.

MR SEXTON: Your Honours, it was said at the end of my learned friend’s submissions that for reasons known only to itself the respondent endeavoured to prove that there was no contract. That is not an accurate statement of what occurred. The respondent endeavoured to establish that the contract which was pleaded and relied on by the applicant was not a relevant contract. But the way in which this issue arises now in this Court for the first time is to say, well, section 60 applies and you cannot rely on section 5L because there was no contract.

EDELMAN J: Do you accept that all of the facts and argument and issues relevant to breach of duty would be argued or adduced in exactly the same way in relation to section 60?

MR SEXTON: It may not be exactly, but it would be very close, yes, your Honour.

EDELMAN J: How would it be different?

MR SEXTON: Well, there may be some circumstance. I am just not ‑ ‑ ‑

EDELMAN J: They are both about breach of duty.

MR SEXTON: In most cases they would be exactly the same.

GAGELER J: The question really I have is what is the basis for the point made by Justice Payne in paragraph 115 – the Suttor v Gundowda point? Is it purely speculation as Mr Jackson puts it, or does it have a ‑ ‑ ‑

MR SEXTON: No, there is, in our submission, more to it than that. For example – perhaps if I can take your Honours to the primary judgment, paragraph 170. That was the identification in the primary judgment of the basis of the contract which was nominations contained in an email, the distribution to Mr Tapp – Courtney is the applicant’s sister - a draw and the payment by him of entry fees. Then at paragraph 177, the primary judge noted:

There was significant obfuscation regarding the identification of what documentation is alleged to have evidenced the creation of a contract –

and so on. But as Justice Payne pointed out in the Court of Appeal judgment in appeal book 126 - this is in paragraph 125 of his reasons:

In the present case, entry to the campdrafting event involved payment of a fee for membership of the Association and payment of a separate fee for entry into the Ellerston Campdraft.

If the section 60 point had been pleaded in the way in which my learned friend now says it ought to have been, that is, not by reference to any agreement, and the respondent wanted to avail itself of the section 5L defence, then it could have investigated the distinction between the entry into the campdrafting event involving payment of a fee for membership and payment of a separate fee for entry into the campdraft to then enliven the issue of whether or not there was a relevant contract for the purpose of section 275 of the Australian Consumer Law.

None of that was done because, as my learned friend has shown your Honours in the supplementary application book, the way in which it was pleaded – my learned friend has taken your Honours to page 11 of that book - the contractual claim starts in paragraph 83 of the pleading with an allegation about an agreement and then in 85 it is pleaded that:

Pursuant to s60 of the Australian Consumer Law it was a term of the agreement . . . that the campdrafting event would be organised, managed and provided with due care and skill –

and then there was a breach of that agreement. So that was the way it was pleaded below and the question of whether or not there was some other agreement was not something for the respondent to negative at large, as my learned friend suggested in his penultimate submission. It is a question of the respondent as the defendant dealing with the case which has been pleaded and the case which has been run.

EDELMAN J: Your case was there was no relevant contract.

MR SEXTON: No, your Honour. Our case was that the contract pleaded was not established and I was not at the trial but apparently the transcript demonstrates that the basis on which the agreement was put forward changed during the course of the trial. In any event, the important factor is that section 60 simplicter was not dependent upon any agreement, was not pleaded and therefore was not considered. In our submission, it is too late to raise that sort of point at this level of the litigation.

In any event, as your Honour has pointed out with both my learned friend and in discussion with me, the section 60 point is a factual inquiry. It is essentially the same as the breach inquiry and the difficulty for the applicant in this case is that both the breach inquiry and the obvious risk inquiry start from the point as identified by Justice Payne in the Court of Appeal and repeating what the primary judge had said.

This is at paragraph 38 of his reasons at page 99 of the application book. It is a fundamentally important contextual consideration that horses can fall in a campdrafting event even if the surface is perfect. That is the point that is being made in paragraph 38.

EDELMAN J: There was evidence that falls at campdrafting are rare, was there not?

MR SEXTON: Yes, your Honour, but there were ‑ ‑ ‑

EDELMAN J: There was evidence that four falls had occurred very, very shortly before the plaintiff’s fall.

MR SEXTON: Yes, your Honour, and if we go over the page to 100, the one that was immediately preceding was at line 10:

Mr Piggott fell shortly before the appellant. There was no evidence about why Mr Piggott fell, where Mr Piggott fell, or whether Mr Piggott suffered an injury. There is no evidence that Mr Piggott’s fall had anything to do with the surface of the arena.

The next person who fell was Mr Shorten, who did give evidence and what he said about this is in paragraph 41 at the very end of the passage where, when he was dealing with Mr Stanton, who was the only person who was suggesting that the competition be stopped:

I had my arm in a sling at the time and he said ‘look at you’ and I said ‘that’s not fair it had nothing to do with the ground, it was my own stupid fault’.

Then if we go over the page to 101, paragraph 42, two of the other competitors who had fallen were identified - about line 12:

Mr Shorten then spoke to two competitors who hade fallen from their horses earlier in the day, Mr Gillis and Mr Sadler. Mr Gillis attributed his fall to the fact that “I rode too hard. I thought I had a chance of making the final”. Mr Sadler said “I am annoyed because I fell just before the gate which meant I didn’t get a score”. Messrs Gillis and Sandler did not blame the arena surface for their falls.

So, yes, there were possibly an unusual number of falls because we are talking about either four or perhaps seven falls out of more than 700 riders.

EDELMAN J: Within a half-hour period?

MR SEXTON: Yes, your Honour, but three of them did not attribute the surface of the arena as being causative of their fall and another person who fell, there is no evidence about the reasons for it. That is, with respect, a very classic set of circumstances where one has to evaluate – do you draw the inference that there was a causal connection between the surface and the fall, or do you not? Four judges have considered that factual issue so far. Three have taken one view, the fourth has taken another view.

EDELMAN J: It was not just the falls, though, was it? I mean, Mr Shorten gave evidence that the condition of the ground was so bad that it took a disc plough three hours to fix it.

MR SEXTON: Yes, but there was no other evidence about how long it normally takes a disc plough to deal with it and there was evidence that this particular organisation had not used a disc plough before, so there are various considerations there. But Mr Shorten expressed his opinion. He was cross‑examined and he made some concessions, but they were not concessions which were determinative. They are part of the evidentiary fabric. It is a piece of evidence to be taken into account.

EDELMAN J: Is it not a significant concession when he said that there were significant safety issues about the arena?

MR SEXTON: Yes, but it is one person, your Honour. As Justice Payne pointed out, there are a number of other people who considered the question at the time and thought that the surface was adequate. The other circumstance that has to be weighed is that there had been 700‑plus horses which had competed on this surface. The way in which the obvious risk was characterised – the respondent, as defendant, put forward a relatively high level of generality, that is the risk of falling from a horse during a campdraft, without being any more particular than that. The way in which the applicant put forward the risk at the Court of Appeal level was that – in Justice McCallum’s reasons at paragraph 166, application book 139:

The risk of harm was identified by the appellant in oral submissions as being “the risk of injury as a result of falling from a horse that slipped by reason of the deterioration of the surface of the arena.”

Now, it was not contended in the Court of Appeal by the applicant, and it is not contended here, that even more specificity is required, for example, by adding the words “as a result of the surface not being ploughed” or “as a result of the surface not being loam”. The way in which the majority dealt with this question – and, by the way, that is how the majority dealt with it in Singh v Lynch as well – was to say there are two competing characterisations being put up here, one at a higher level of generality, one at a more granular level. We will consider both and ‑ ‑ ‑

EDELMAN J: Why should not the level of generality match the level of generality for the assessment of the relevant risk for breach of duty? Should it not be exactly the same?

MR SEXTON: No, your Honour, because whether or not a risk is an obvious risk for the purposes of assessment of a dangerous recreational activity will not always – very often it will be – but it may not always exactly replicate the risk for the purposes of section 5B.

EDELMAN J: Why would it not? Accepting that the test for obviousness may bring into account different considerations, why would not the relevant risk be characterised at the same level of generality as the relevant risk against which care had to be taken?

MR SEXTON: Well, the latter is directing attention to what precautions are necessary to address that risk, and that may not always be the same inquiry. I am accepting, your Honour, that in most cases it will be, but I am not accepting that it will be in every case.

EDELMAN J: Part of the difficulty here is you have, just on the facts of this case, three different approaches taken by four judges as to the level of generality, yet there is very rarely that type of difference that is taken at the level of breach of duty of care.

MR SEXTON: Yes, your Honour. But in an appropriate case it may be determinative because there may be a different answer depending on whether you characterise the risk at a more general level or a more particular level.

EDELMAN J: Of course.

MR SEXTON: The point being made by the majority here, as did the majority in Singh v Lynch, was that on either characterisation of the risk, it was an obvious risk. The reason for that, in part, was because the surface of the arena can deteriorate during the course of the competition, whether or not it was ploughed or not ploughed and so on. There could be many reasons why the surface of the arena may deteriorate during the course of a competition. But the circumstance that that can happen is an obvious circumstance, it is an obvious risk.

EDELMAN J: There was expert evidence, was there not, that there was a general expectation that if there was any level of risk beyond the ordinary amount that competitors would be informed?

MR SEXTON: I am not sure if ‑ ‑ ‑

EDELMAN J: I recall a reference to evidence to that effect being ‑ ‑ ‑

MR SEXTON: There may have been some evidence to that effect, your Honour, but I am not sure whether it was accepted. There would be reasons not to accept that sort of evidence in the case of a competition like this where people are riding horses ‑ where horses can be expected to deal with different conditions ‑ and that was one of the points that the judges or other organisers were making when they were contemplating the decision to terminate the event, or not terminate the event in the circumstances.

But, your Honours, they are all factual matters which do not lead to any conclusion that there is an error of principle in the way in which the section has been applied. As we point out in our written submissions in paragraph 21 at page 174 of the application book, and this was a matter which was the subject of some discussion in the recent application in Singh v Lynch, the way in which the New South Wales Court of Appeal has approached, as a matter of principle, the degree of specificity required in identifying the risk ‑ this follows a line of cases in New South Wales – is to characterise the obvious risk in a way which fairly captures the risk which materialised in the particular circumstances of the individual case.

GAGELER J: Mr Jackson’s point is not so much that as that the obviousness of the risk needs to be assessed by reference to the knowledge of the plaintiff.

MR SEXTON: Yes, your Honour. But it is still an objective test so there is a distinction in that regard between matters which are relevant to the objective assessment ‑ for example, as Justice McCallum pointed out, the applicant’s age ‑ and whether they, for example, have any relevant disability or impairment.

In some circumstances, it may be relevant to assess whether they are intoxicated. There may be circumstances in which that it is a relevant consideration, but nevertheless purely subjective matters such as that this applicant did not hear an announcement that people could withdraw if they wanted to, in our submission, would not be relevant because the inquiry is directed towards the extent or not to which it is obvious that, whichever of those characterisations is put forward, there is a risk of a fall as a result of the deterioration in the surface of the arena.

So nothing, in our submission, turns on the age of the applicant in this case. Although Justice McCallum made some observations about 19‑year‑olds perhaps not appreciating risk as much as adults, that is a matter
that is very much within the basket of evaluation of all of the evidence at a factual level, which, in our submission, is not appropriate for this Court to engage in, in a case like this one. May it please the Court.

GAGELER J: Thank you. Mr Jackson. Can we deal with this Suttor v Gundowda point in relation to your proposed ground 3. As I understand what has been said is that you pleaded one contract. If you have had just relied on section 60 then – I withdraw that. If you can rely on section 60 then, but for section 275, you do not have to worry about section 5L ‑ ‑ ‑

MR JACKSON: Yes.

GAGELER J: But if you had just pleaded section 60, as I understand it is being said against you, then it may be that consideration would have been given to 275 and a contract would have been – or could have been found that would have engaged section 275 and therefore produced the defence under section 5L.

MR JACKSON: Well, your Honour, the position in relation to that was that your Honours will see that we pleaded section 60 and said it was a term of the agreement. Now, that was something which was an unnecessary plea, unnecessary in the sense that it did not have to be a term of an agreement. We had pleaded that. The other side – without going into arguments about whether they went out of their way to do it – the other side successfully established that that contract did not exist.

For there to be reliance on section 275, there had to be a contract. That had to be their case, not ours. Your Honours, for there to be - one would have thought that at some point there would have been an endeavour to establish what that contract was if it was not to be the one that we had unnecessarily pleaded ourselves.

EDELMAN J: They needed to have an alternative defence.

MR JACKSON: Yes, if they were going to rely on a contract, what was the contract? I mean, that was something that the ordinary rules of pleading would require. In the absence of there being any contention to that the things fell where they – things lay where they fell – lay where they fell in the sense that because, presumably, it was thought that section 60 required a contract or perhaps reliance on the previous trade practices provision it was established there was no contract, ergo ‑ ‑ ‑

GAGELER J: The contract pleaded did not exist, that is what was established.

MR JACKSON: I am sorry, your Honour?

GAGELER J: The contract pleaded did not exist.

MR JACKSON: The only contract pleaded did not apply. No contract was pleaded by them and, your Honour, one would have thought that the onus lay on them to plead any contract that they regarded as the appropriate contract if they were contending that the contract that we had referred to was not the appropriate contract, but they went out of their way to destroy it.

EDELMAN J: Your pleading referred to this in reply to the Australian Consumer Law.

MR JACKSON: Yes, your Honour.

EDELMAN J: Was section 60 specifically referred to in submissions?

MR JACKSON: Yes, it was, your Honour, yes it was, and you will see – I took your Honour to the admittedly short way in which a case for the statutory guarantee was dealt with by the primary judge – I think paragraph 192 - I am sorry, was dealt with by the primary judge towards the end of her reasons.

Your Honours, may I say two other things. First of all, in relation to what the evidence was on the question of was there a breach, if your Honours look at the evidence summarised at page 152 in paragraph 12 of the application it was, in our submission, a very strong, very strong case. If your Honours look also – I am sorry, and in relation to the other matter my learned friend mentioned, evidence might have been called, it was said, from the other people who were involved in arranging the matter.

Your Honour, if one goes to the matters that we have set out in our reply submission in paragraph 3, page 188, and the following paragraphs, paragraph 5, there was no evidence that – I am sorry, there was reference to a Mr Callinan. Then paragraph 5, why were they not called? It was in the respondent’s interests to call them. The only one who was called was the one gentleman who was called. Your Honours, we would submit that there was nothing in either of those contentions.

May I just say finally, your Honours, that your Honour Justice Edelman referred to, was there a reference to what the expectation of what things should be like? Your Honours will see that referred to at page 33, paragraph 96, in the reasons for judgment of the primary judge. Your Honours, those are our submissions.
GAGELER J: Thank you, Mr Jackson. The Court will adjourn for a moment to consider the course we will take in this matter.

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.16 AM:

GAGELER J: In this matter there will be a grant of special leave to appeal limited to grounds 1 and 2. A one‑day matter?

MR JACKSON: Yes.

GAGELER J: Yes, thank you. The Court will now adjourn.

AT 11.17 AM THE MATTER WAS CONCLUDED