Certain Lloyds Underwriters Subscribing to Contract No IH00AAQS v Cross & Ors; State of New South Wales v Williamson

[2011] HCATrans 340

[2011] HCATrans 340

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S256 of 2011

B e t w e e n -

CERTAIN LLOYDS UNDERWRITERS SUBSCRIBING TO CONTRACT NO IH00AAQS

Applicant

and

JOHN CROSS

Respondent

Office of the Registry
  Sydney  No S257 of 2011

B e t w e e n -

CERTAIN LLOYD’S UNDERWRITERS SUBSCRIBING TO CONTRACT NO IH00AAQS

Applicant

and

MARK GEORGE THELANDER

Respondent

Office of the Registry
  Sydney  No S258 of 2011

B e t w e e n -

CERTAIN LLOYDS UNDERWRITERS SUBSCRIBING TO CONTRACT NO IH00AAQS

Applicant

and

JILL MARIA THELANDER

Respondent

Office of the Registry
  Sydney  No S259 of 2011

B e t w e e n -

STATE OF NEW SOUTH WALES

Applicant

and

JAYSON WILLIAMSON

Applications for special leave to appeal

FRENCH CJ
GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 DECEMBER 2011, AT 10.06 AM

Copyright in the High Court of Australia

MR R.J.H. DARKE, SC:   May it please the Court, I appear with my learned friend, MR M.J. STEVENS, for the applicants in S256/2011, S257/2011 and S258/2011.  (instructed by Riley Gray-Spencer Lawyers)

MR J.B. SIMPKINS, SC:   If the Court pleases, I appear with MR D.F. VILLA for the applicant in S259/2011.  (instructed by the Crown Solicitor (NSW))

MR R.T. McKEAND, SC:   If it please the Court, I appear with my learned friends, MR A.C. CASSELDEN and MR F.L. AUSTIN, for the respondents in S256/2011, S257/2011, S258/2011 and S259/2011.  (instructed by G H Healey & Co and Byles Anjos Lawyers)

FRENCH CJ:   Mr McKeand, it might assist if we could hear from you first, I think, as to why you say special leave should not be granted.

MR McKEAND:   A significant point going to the suitability of the vehicle is that this legislation – or the point that arises in this legislation is peculiar to New South Wales.  It has no operation or no effect.  In other words, a decision on the proper construction of the interplay between the Civil Liability Act in its relevant cost limiting provision and the Legal Profession Act would not affect any other State, and that is common ground.  In a particular context, this legislation in this particular issue is of limited utility.  The reforms, as it were, introduced by the Civil Liability Act and carried through into the costs aspects of the Legal Profession Act are of such a nature that they are constantly amended.  The Civil Liability Act, as we have indicated in the argument, has been amended many times and, ultimately, this is the most significant point we put against the appeal.

Putting aside the technique employed by the Court of Appeal judges, the result obtained was what all of them would agree was a just result in the sense that there was no apparent purpose in the Civil Liability Act or the Legal Profession Act to cover intentional torts with the proposed amendments, and that is reflected in the judgments in this way.  They have all made comments in both cases.  They have all made comments about the fairness of the result.  That goes in two senses.  One is that as far as the result is concerned, it would be left as a matter appropriate for the legislature to make any change to it and the other aspect of it is that that result is apparently within the purpose of the legislative intention.

There is some tension between the literal approach and the contextual approach and in the second appeal, the two judges who gave alternative reasons, Justices Campbell and Macfarlan, both took the view that a literalism prevailed because there was no clear indication from context.  With respect, that seems to run counter to the views of the other judges, including Justice Hodgson who had the opportunity to consider the views of Justices Campbell and Macfarlan.  It is counter in this sense. 

Putting aside the question of extraneous materials because there may some debate in light of what was said in Byrnes v Kendle by Justices Heydon and Crennan about use of extraneous materials, putting that aside, the purpose is, I think, seen by all judges in a general contextual sense of the interplay between these two Acts as being to reform the law in relation to the process for dealing with common negligence claims and the purpose is limited to that, and that is clearly indicated by the exclusion of certain Acts, in particular, exclusion of the intentional torts element from the Civil Liability Act.  So you end up with a result in the Court of Appeal that is fair and just in the circumstances, accords with the purpose of the scheme of the two pieces of legislation and, in that sense, there is a lack of merit in the alternative argument.

FRENCH CJ:   Going to merit, there is a question, I suppose, as to the purpose of carving out of the term “personal injury damages” as defined in section 11 of the Civil Liability Act, a reference to the class of personal injury damages that relate to intentional tort when you already have a distinct provision which, as it were, lifts the application of Part 2 or excises from the application of Part 2 that class of damages.  In other words, the construction of personal injury damages which has been adopted by the first Court of Appeal would seem to render that non‑application provision otiose.

MR McKEAND:   The answer is there is obviously a clear overlap.  What was the purpose of section 11 and 11A in dealing with the exclusion, I suppose, is otiose in the sense that it is covered by 3B in any event, but it seems at least to have a benefit, if not a clear purpose, in emphasising that those torts are not to be considered in relation to personal injury damages in Part 2.  Can I put it this way, that it tends to emphasise and do no more than emphasise and if it does no more, it does no harm than emphasise the exclusion from Part 2.

One of the central concerns tends to be that when you are dealing with the Civil Liability Act which specifically is dedicated to the application of principles to litigation, it is not a negative point to say, as has been said by Justices Campbell and Macfarlan, it is not a negative point to say that there is a difference between the meaning of a word and its application because application is crucial to the way in which Part 2 operates.  It is a part that deals with the application of what were otherwise common law principles to certain types of litigation.  In terms of the strength of the argument, whilst it is undoubtedly arguable, particularly in light of two judges having taken that particular view, it is with respect an argument that is readily met by that consideration.

One other comment that we made about the approaches of Justices Campbell and Macfarlan, they came to the more or less joint conclusion that there was nothing sufficiently clear in the context to override what they saw as a literal construction.  A literal construction, nevertheless, has to be acknowledged as a troubled one because it is not a simple literal construction between the two and, as we have put in the written submissions, the context is of great importance.  The context, if I go back to my first point, is such that you have the amending reforming statute that deals with common law process and limits itself to, in this particular situation, basically the claims of negligence, specifically excludes intentional torts with intent to cause injury and, in that context, one has trouble finding why the word “meaning” in the context would incorporate anything that included intentional torts.

FRENCH CJ:   In the Williamson matter, there is also an antecedent question about the scope of the concept of damages or injury where false imprisonment is concerned, is there not?

MR McKEAND:   Yes, your Honour.  Both cases have their elements that touch upon suitability as a vehicle.  In that particular one, if the Cross decision is maintained, that issue falls away as a question of utility because they would lose in any event.  The general comment in relation to that is that there is no lack of clarity in the law in that particular regard.  There is nothing to the contrary and I think there is nothing put to the contrary to the fact that false imprisonment, for example, in a simple form involves no element of personal injury damages and it is actionable of right, as is any form of trespass to the person.  One would not see that as being of itself an appropriate question as a vehicle for review by this Court. 

here is also the complicating factor in the Cross Case that renders it less likely to be an appropriate vehicle in that there was doubt as to the particular version of the Legal Profession Act that applied to the circumstances in Cross, and different views were expressed by Justice Campbell and Justice Hodgson, Justice Campbell at paragraph 23 of his judgment, Justice Hodgson at paragraph 2, and Justice Sackville did not decide the question ‑ ‑ ‑

BELL J:   Did anything turn on that?

MR McKEAND:   No, that is the point.  That is one point, yes.  But nevertheless, it is put as an element of the appeal for Cross and if that is regarded as appropriately the case, then it may render it as less of a suitable vehicle.  Your Honour, we have referred, going back to the contextual point, to the appropriateness of consideration of general purpose policy and context citing Project Blue Sky and Commissioner of Railways v Agalianos, and I can add to that the more recent decision of this Court in Westport Insurance v Gordian Runoff which was decided on 5 October this year which again cited that passage of Chief Justice Dixon’s in Agalianos.

If I can just wind up the argument on context, one would suggest, with respect, that if you look at the reforms enacted by the Civil Liability Act which created the changes to this Legal Profession Act, the overriding or dominant element of the reforms was to deal with areas of tort law, specifically negligence, to the specific exclusion of intentional torts.  It would be curious, with respect, if, in a sense, that purpose was defeated by an over literal or, can I say, strained literal interpretation of the interplay of section 337 in the current legislation and section 3B and Part 2 of the Civil Liability Act. 

Respectfully, we would suggest that the matter is best left where it stands.  It is a matter of rather intricate legislative interplay that, in an area that has been constantly reviewed, would be best left to the legislature to resolve if they are not content with the existing resolved ‑ ‑ ‑

FRENCH CJ:   An inherently unstable law.

MR McKEAND:   We have indicated some statistics.  It has been amended, one of them 20 and the other 27 times, since 2002 and whilst I can appreciate the Court has the view of its obligation to interpret the law as it is, that nevertheless does not exclude the possibility that it is a matter that is best left to the legislation.

FRENCH CJ:   In each of these matters you are seeking a special order for costs on the basis that this is a test case for the benefit of the insurers.  Have you had a response to that?

MR McKEAND:   We have not.  We have from the State, but I have not – the State accepted that obligation in the Court of Appeal.  I do not know that they have specifically accepted it in this case.  It would follow that they would.  We have not had a response from the Cross appellants.  May it please the Court.

FRENCH CJ:   Yes, all right.  Thank you, Mr McKeand.  We will just hear from the applicants in relation to the costs orders which are sought.

MR DARKE:   We are content to agree to the condition that is sought by the respondents.

FRENCH CJ:   Yes.  Mr Simpkins?

MR SIMPKINS:   That is also our position, if the Court pleases.

FRENCH CJ:   Right.  Subject to that condition, there will be a grant of special leave.  Should this take any longer than, say, half a day, maybe a day?

MR DARKE:   Certainly no more than a day, I would have thought, your Honour.

FRENCH CJ:   You are probably just less optimistic than I am.  All right.  So a grant of special leave.  I draw your attention to the printed directions as to time for filing of written submissions which we have extended a little having regard to the Christmas break coming up.

AT 10.24 AM THE MATTERS WERE CONCLUDED