|
|
Home
| Databases
| WorldLII
| Search
| Feedback
University of Technology Sydney Law Research Series |
Last Updated: 16 May 2017
THE RISE AND RISE OF THE COMMON LAW IN STATUTORY
INTERPRETATION OF TORT LAW REFORM LEGISLATION: Oil and Water or a Milky
Pond?[*]
Legislation and the common law are not separate and independent sources of law; the one the concern of parliaments, and the other the concern of courts. They exist in a symbiotic relationship.[1]
The meaning of a statutory text is also informed, and reinformed, by the need for the courts to apply the text each time, not in isolation, but as part of the totality of the common law and statute law as it then exists....The attribution of meaning by courts to the statutory text in this way resembles the declaration and development by courts of the common law. The common law and statute law as applied by courts are, to a significant degree, products of the same inherently dynamic legal process.[2]
The common law world has long puzzled over the interplay between common law and statute. This article demonstrates nuance in the approach to statutory interpretation in the six cases decided by the High Court between 2009 and 2013 involving interpretation of the tort law reform legislation: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem[3], Strong v Woolworths Limited[4] and Wallace v Kam[5] Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales[6] and Insight Vacations Pty Ltd v Young[7] and Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd[8]. The cases evidence that, in the interpretation of a single statute – the Civil Liability Act 2002 (NSW) - the High Court employs a diversity of statutory interpretation techniques which may be characterised as ranging between an ‘oil and water’ approach (to those statutory provisions which limit or abrogate previous common law rules and rights) to a ‘milky pond’ approach (where the common law is used analogically to interpret and develop statute law). This article argues that the employment of this range of techniques underlines the view that legislation and common law cannot be seen as separate and independent simply because of their independent sources. Rather they ‘exist in a symbiotic relationship’[9] as ‘products of the same inherently dynamic legal process’. [10]
Introduction
It has more often than not, been taken as a given that because statute law
and common law originate from two separate arms of government
each source of law
must necessarily be applied by the judiciary in divergent ways. Consequently it
has largely been accepted by commentators
that any understanding of the
relationship between statute and common law should start from a point of
difference rather than similarity.
This article argues that a
preferable approach to the relationship between statute and common law is that
of viewing both sources
of law as emanations of the common law legal tradition
of which they are part. The relationship between statute and common law springs
from both a coherent and shared legal heritage where sameness rather than
difference needs to be emphasized as the starting point
for judicial
application. In this article we focus on the development of the tort of
negligence where recent statutory reforms introduced
across Australian
jurisdictions provide a welcome opportunity for exploration of the relationship
between common law and statute
in an area of tort law which has traditionally
been regarded as common law
based.[11]
Part 1 discusses
the complex and evolving relationship between statute and common law. The
Australian High Court approach to tort reform
legislation is supported in other
common law jurisdictions where progress toward an integrated relationship
between statute and common
law is recognised. For example Professor Burrows,
writing with respect to the relationship in England between common law and
statute
and the law of obligations, has recently expressed a desire to
‘shatter once and for all the myth that common law and statute
are very
separate bodies of law that should not be treated as if merged in an integrated
whole’.[12] Professor Burrows
used particular aspects of the law of obligations in England to demonstrate that
statutes are both dependant on
the common law and are themselves a source of
common law development.[13] We
demonstrate a similar effect in Australian negligence law, which is now uniquely
positioned to enable examination of the complex
relationship between statute and
common law following Australia wide tort law reform statutes enacted from 2002
onwards. Our examination
of six recent Australian High Court decisions on the
interpretation and application of the tort reform legislation demonstrates an
exceptional synergy and interrelationship between the common law and statute in
Australian negligence law: a relationship that depicts
a degree of integration
over an entire fabric of law. Previous commentators such as Professor Burrows
and Professor Beatson,[14] have
pointed to specific examples of individual statutory provisions or of decisions
in the case law on discrete rules, to demonstrate
the changing relationship
between statute and common law. But what we are seeing in Australian negligence
law in the 21st century may be described as movement towards a more
organic fusion of statute and common law. Moreover we argue that the common law
is being elevated to a position of prominence and influence by virtue of its use
as context (in statutory interpretation) and as
a guide to meaning of statutory
provisions and even perhaps, to enable analogical development of the statute
law.
Part 2 considers statutory interpretation methodology in the High
Court and the way Australian High Court judges have characterised the
approach
to statutory interpretation in subtly different ways. Importantly however, as
Chief Justice Spigelman in NSW notes ‘applying
the principles of statutory
interpretation is always a matter of emphasis and nuance. There have been
differences in judicial approaches
to the task over time. These transitions are
hard to detect.’[15] The
interpretive approach of the High Court which we identify with respect to tort
law reform legislation is both fluid and flexible.
Our analysis of the interplay
between statute and the common law will facilitate understanding of a
relationship which ‘has
traditionally been woefully underexplored by
commentators’[16] and point to
the possibility of an emerging concurrence between courts and legislatures in
the recent development of negligence law.
The benefit of this approach is to
concentrate debate upon the law as it is, both common law and statute –
rather than to apply
the law by reference to its institutional contexts -
exposing as fallacious any imputed omniscience of parliament. It thus allows
a
more frank understanding of the issues discussed in the six cases before the
High Court which have concerned the tort law reform
legislation to date.
Part 3 discusses six cases decided by the High Court between 2009 and
2013 all of which concerned interpretation and application of provisions
in the
NSW tort reform legislation. Three cases are decisions concerning the element
of causation in negligence law: Adeels Palace Pty Ltd v Moubarak;
Adeels Palace Pty Ltd v Bou
Najem[17] Strong v
Woolworths Limited[18] and
Wallace v Kam[19]. Each
decision thus concerns establishing an essential element of the cause of action
in negligence. This article observes that
in each decision, the common law of
negligence provides the context for statutory interpretation in informing the
development and application of the tort of negligence. This common
law contextual reading of the tort law reform legislation becomes abundantly
clear when juxtaposed
with the literal textual reading of the tort law reform
legislation in the remaining three High Court decisions discussed in Part 3:
Wicks v State Rail Authority of New South Wales; Sheehan v State Rail
Authority of New South Wales[20]
and Insight Vacations Pty Ltd v
Young[21] and Hunt &
Hunt Lawyers v Mitchell Morgan Nominees Pty
Ltd[22] . These cases concern
specific aspects of the legislation that do not centre on the establishment of
an essential element of the
cause of action but rather on statutory alteration
or curtailment of previous common law. This type of binary approach to the
interpretation
of statutes in the Australian context was recognised by Professor
Finn[23] who favoured liberal
interpretation of statutes consonant with common law and strict interpretation
of statutes antithetical to common
law.[24]
We conclude that in
the law of negligence the Australian High Court is demonstrating an attitude
toward the inter-relationship of
the common law and statute which is quite
unprecedented. It adopts a more unifying approach to these two primary sources
of law than
has previously been the case with an avowal of the primacy of the
common law as context for the statutory reforms.
1. The Complex and Evolving Relationship between Common Law & Statute
The relationship between common law and statute is an issue as old as Coke
and Blackstone[25] who saw the two
as completely separate and independent sources of law. Yet, Roscoe
Pound[26] writing in 1908 took the
view that eventually legislation would be received fully into the body of the
common law providing a ‘direct
expression of the general will of superior
authority to judge made
rules’[27] and therefore
offering principles from which to reason by analogy in developing the common
law. He accepted however that the then
orthodox common law attitude to
legislation was to apply it strictly, narrowly and rigidly and only in those
cases to which it directly
applied.[28] Between these extremes
(the first and fourth possibilities in Pound’s propositions), Pound
identified two other possible accommodations
between common law and statute. The
second was that statute law might be received fully into the body of common law
as equal in authority
to judge made law with the use of analogy to develop the
common law. The third possibility was that statute law might be liberally
interpreted but without being fully accepted into the common law so as to
prevent analogical reasoning.
Espousing a view similar to Pound’s
ideal, US Chief Justice Stone spoke in 1936 about the ‘ideal of a unified
system of
judge-made and statute law woven into a seamless whole by the
processes of adjudication’[29]
but lamented that judges at the time were ‘destructive critics’ of
the inadequacies of
legislatures.[30] Writing more
recently in 1977, Sir Rupert
Cross[31], suggested that English
law had achieved the second of Pound’s possible accommodations of statute
law (the full receipt of
statute law as equal to judge made law with the use of
analogical reasoning from statute to develop the common law) and that possibly
even the ideal of full reception of statute law as superior authority to judge
made law, had been achieved.
Yet, writing in 1985 Professor
Atiyah[32] took issue with Cross and
suggested that what might be apparent analogical development of the common law
from statute, in some instances
was in fact the application of pre-existing
common law rules and that English law had not achieved any serious fusion or
integration
of common law and statute
law[33] at least by the late
20th century. He cautioned against the use of statutes as analogy or
extension of statutory operation indirectly by reformulation of the
common law
and opined that Pound’s identified methods by which statutes might be
received into the full body of law was ‘not
a general across the board
solution’.[34] Atiyah pointed
to ‘declaratory acts’ (statutes that ‘declare’ the
common law) which were interpreted and
applied as though the acts
‘remained largely a matter of common
law’[35] whilst the common law
continued to be developed independent of the
statute.[36] He did acknowledge
however that ‘the development of the law always must involve some degree
of mutual co-operation between
parliament and
courts’.[37]
This
scholarly view, of cooperation or perhaps partnership between common law and
statute is enhanced by Professor Beatson writing
in
1997.[38] He considered the vitality
and future of the common law from the English perspective and concluded that the
‘oil and water’
view of the relationship between common law and
statute - the Coke and Blackstone notion that the two are parallel but
completely
separate – was no longer tenable. He noted that modern law was
ever more ‘an amalgam’ of common law and statute
given that so much
statutory reform, particularly of private law, is not by codification but by the
statutory correction of specific
defects (which he stated had been described as
‘legislative
microsurgery’).[39] Beatson
was, like the eminent commentators before him, most concerned with the question
of when statute law might be used analogically
to develop the common law. He
suggested that if a ‘purpose’ approach to statutory interpretation
were employed, then
a principle might be drawn from a statute and that
identified principle could then be employed in aid of development of the common
law. He used the example of the decision in X (Minors) v Bedfordshire County
Council[40] where the House of
Lords declined to impose a duty of care in negligence because the circumstances
were ‘profoundly influenced
by the statutory framework within which the
acts complained of were done’ (at 739 per Browne-Wilkinson
LJ).[41]
The converse
position is that common law principles may be relevant to the interpretation of
statutory reforms of the common law.
Beatson recognised this as the
‘default’ rule[42] and
noted the common law technique of the gradual development of a body of
case law continued, as courts interpreted and applied statutory
provisions.[43] Most recently
Professor Burrows took this analysis further and referred to this as
‘statute based common
law.’[44] Burrows, recognised
that there is a very different enquiry from that addressed previously by the
scholars, in the case of common
law analogies being used to interpret
statutes[45]. He wrote that use of
common law in this way should be encouraged to promote consistency between
common law and statute and because
the common law ‘has been carefully
crafted and is likely to be both principled and practically
workable’.[46]
In the
Australian context, Finn referred to Pound’s work and suggested that the
common law should not be ‘subservient
to
legislation’[47] and that it
should not exist ‘under the shadow of
legislation’.[48] He
suggested that each of Pound’s four categories concerning the relationship
of statute and common law can be identified
in instances in Australian law. He
stated that where a statute is ‘antithetical to a fundamental theme in
common law’
then it should be interpreted strictly and not used
analogically and should be subject to common law doctrines which serve to
protect
rights or avoid unfairness. Conversely, where a statute is
“consonant” with common law then it should be interpreted
liberally,
may be used analogically and if in broad terms, it may be limited by common law
doctrines.[49] We argue that this
analysis is demonstrably accurate in the case of Australian tort reform
legislation as applied by the High Court
in the cases discussed in Part
3.
Professors Peter Cane and Barbara McDonald have separately considered
the interface between the Australian tort reform legislation
and the common law.
Professor Cane has recognised that ‘the legislation necessarily operates
against the backdrop of all the
law – both judge made and
statutory.’[50] In a similar
vein Professor McDonald opined that ’reference to the common law
background and principles is necessary ... to
put the new provisions in their
proper operational
context.’[51]These comments
foreshadowed the approach of the High Court which we identify and discuss in
Part 3.
In 21st century Australian tort law, common law and
statute have become considerably more integrated than in the past, but
nevertheless we
have not reached Stone’s ideal unified system or
Pound’s full reception of statute into the common law. Rather, in the
case
of tort reform statutory provisions which concern essential elements in the tort
of negligence we are seeing progress toward
a full reception of the common law
into statute law: a reverse of the process considered by the old scholars. Here
the common law
is used analogically in the interpretation and application of the
statutory provisions. This view encapsulates a kind of milky pond
approach to
the interpretation of tort law reform legislation rather than the oil and water
view referred to by Beatson: the notion
being that the tort law reform
legislation has been incorporated into the pre-existing and much larger body of
common law, a pond,
where it dissipates and disappears at one extreme (with the
common law being used analogically to interpret and develop statute law).
Yet it
remains opaque and indissoluble at the other extreme, in the case of those
statutory provisions which limit or abrogate previous
common law rules and
rights.
2. Statutory interpretation methodology in the High Court
of Australia
A full body of scholarship by past and present Australian members of the
judiciary explores judicial interpretation of statutes: perhaps
unsurprising
given that ‘the construction of statutes is now, probably, the single most
important aspect of legal and judicial
work’.[52] For example, Chief
Justice Spigelman of NSW, and Justices Gageler and Kirby, present and past
members of the High Court, have tackled,
extra-judicially, the modern approaches
to interpretation of statute by the judiciary. Their Honours each emphasized
that statutory
interpretation is not static and that the methodology adopted by
the courts is nuanced and sometimes difficult to identify. Nonetheless,
each
has coined a description of the current style of High Court interpretation.
Chief Justice Spigelman has applied the phrase from ‘text to
context’ to describe the shift which has taken place in judicial
approaches to statutory interpretation in
Australia.[53] His Honour noted that
while there is ‘nothing new about emphasizing context and purpose in the
interpretation of words’[54]
this approach has coincided with a ‘gradual abandonment of literalism in
favour of the ‘purposive approach’, stimulated
by legislative
instructions and encouraged by a greater judicial willingness to use extrinsic
materials to assist in the task of
construction’.[55] His Honour
however remained mindful that:
The task of the courts is to interpret the words used by parliament. It is not to divine the intent of the parliament. The courts must determine what parliament meant by the words it used. The courts do not determine what parliament intended to say.[56]
Justice Kirby also observed that this movement from a strict approach of
mandating a so-called ‘plain meaning’ and ‘grammatical’
interpretation of statutory language towards a looser and more flexible approach
was underway in the courts in the 1980s around the
time that the
Interpretation Acts were introduced into most Australian
jurisdictions.[57] As Justice Kirby
wrote ‘Today, that task requires a combined exercise involving analysis of
the text, context and purpose (or policy) of the statute in
question.’[58] His Honour
noted that:
...the shift in statutory interpretation, and for that matter constitutional
interpretation, that has occurred in recent decades can
be summarised with a
Biblical analogy, for judges, practising lawyers and legislative drafters
endeavouring to see through a glass
darkly into the meaning of words: And now
abideth text, context, purpose, these three; but the greatest of these is
text.[59]
Justice Gageler is
part of this judicial triumvirate in identifying that:
The approach now ascendant in Australia has been labelled 'literal in total context': it explains statutory interpretation in terms of the attribution of meaning to the words of a statutory text in the totality of the 'context' in which the statutory text was enacted.[60]
While their Honours’ emphasis upon a movement away from literalism
towards context is acknowledged, the complexity of the issue
lies in the degree
to which context has influenced statutory interpretation. While we agree with
Professor Finn, that the High Court
is not of one purpose and of one mind on
this matter[61] the next Part of
this article confirms this complexity and argues that legislative reform of
negligence law in Australia has become,
through the High Court application of
the common law context, truly an amalgam of legislation and common law. It is
evident in the
case analysis which follows that the Australian High Court has
completely abandoned any ‘oil & water’ approach to
the
relationship between tort legislation and common law and view the tort reform
statutes and the common law as inextricably intertwined
–certainly insofar
as the establishment of the essential element of causation in the law of
negligence is concerned. In Australia
today the common law of negligence can be
used not only as ‘context’ in the traditional statutory
interpretation method
but is elevated to a primary position for the purpose of
analogical interpretation and application of the reform statutes with respect
to
establishing the element of causation. The common law might be seen as a kind of
preface or as a most unusual kind of explanatory
memorandum to the legislation:
a very complex one drafted by the courts carefully over a long period.
3. The High Court Tort Law Reform Cases
In analysing the six
cases which have come before the High Court with respect to the tort law reform
legislation we do not intend
to provide a restatement of the law of statutory
interpretation. Indeed in each decision discussed, the Court resolves a narrow
question with respect to the issue at hand. But we contend that these decisions
evidence a methodology which demonstrates a relationship
between common law and
statute that is surprisingly unified, with common law as context guiding the
application of statutory rules
concerning the elements of the cause of action in
negligence. Yet, at the same time the High Court adopts a literal approach to
interpretation
of provisions which limit or abrogate common law rules.
(a) Decisions on the ‘framework’ provisions on causation and establishing an essential element of the cause of action in negligence: let the common law be our context
As noted in the Introduction, three of the six tort reform cases before the
High Court have considered the statutory formulation of
causation in section 5D
Civil Liability Act 2002 (NSW) and the common law.
[62] In these cases on
causation the High Court takes the view that s 5D guides but does not displace
common law methodology.[63] This
view appears to be consistent with the Ipp Report recommendation of
‘legislative
guidance’[64] of the type
embodied in s 5D (though that section is in very different terms to those
suggested in the Ipp Report). The Ipp Panel states that such an
enactment would ‘suggest to courts a suitable framework in which to
resolve individual
cases’[65].
On this issue Professor Jane
Stapleton[66] observes that:
There is nothing in the post Ipp Report civil liability legislative
provisions dealing with either factual causation or scope of liability
that
inhibits the future recognition of special rules of proof or the enunciation of
guiding principles governing the scope of liability.
In relation to both, the
legislation is best seen as reporting the legitimate law making role of the
courts, save with the caveat
that the courts must enunciate the considerations
that have been taken into account. Beyond that, the legislation properly
“offers
no further guidance about how the task is to be performed”.
In these cases and despite superficial variations in statutory
language, the
critical role of the High Court in nurturing and developing a national system of
common law remains undiminished.
The three cases on causation illustrate
a kind of dissipation or absorption of the tort law reform legislation into the
body of common
law on causation as well as the vibrance of the common law, and
as Stapleton notes, the ‘undiminished’ role of the High
Court in
developing the common law.
The first case where the High Court
considered the issue of causation, in particular the relationship of section 5D
of the Civil Liability Act 2002 (NSW) to the common law, is
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou
Najem.[67] The case,
dealt with the issue of the liability of the landlord, Adeels Palace to provide
security personnel at its restaurant on
New Year’s Eve. Two plaintiffs
were shot by a gunman at the venue, arguing before the High Court that their
personal injury
was a result of the failure of Adeels Palace to hire sufficient
security personnel to prevent access to the premises by the gunman.
The
plaintiffs were unsuccessful as the unanimous judgment of the Court reasoned
that the provision of more security personnel would
probably not have prevented
the entry of the gunman or the shooting of the plaintiffs.
The Court
had to examine the interplay between the common law and section 5D
(1)[68] which provides:
General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation"), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused ("scope of liability").
In reference to the application of this provision, the Court held:
The first point to make about the question of causation is that, in these cases, it is governed by the Civil Liability Act.
Section 5D (1) of that Act divides the determination of whether negligence caused particular harm into two elements: factual causation and scope of liability.
Dividing the issue of causation in this way expresses the relevant questions in a way that may differ from what was said by Mason CJ, in March v Stramare (E & M H) Pty Ltd, to be the common law's approach to causation. The references in March v Stramare to causation being "ultimately a matter of common sense" were evidently intended to disapprove the proposition "that value judgment has, or should have, no part to play in resolving causation as an issue of fact". By contrast, s 5D (1) treats factual causation and scope of liability as separate and distinct issues.
It is not necessary to examine whether or to what extent the approach to causation described in March v Stramare might lead to a conclusion about factual causation different from the conclusion that should be reached by applying s 5D(1). It is sufficient to observe that, in cases where the Civil Liability Act or equivalent statutes are engaged, it is the applicable statutory provision that must be applied.
Next it is necessary to observe that the first of the two elements identified
in s
5D (1) (factual causation) is determined by the "but for" test: but for the
negligent act or omission, would the harm have
occurred?[69]
And then the
High Court stated that:
...the “but for” test of factual causation was not established.
It was not shown to be more probable than not that, but
for the absence of
security personnel (whether at the door or even at the floor of the restaurant)
that the shooting would not have
taken
place....[70]
It is worth
quoting the above in full (with footnotes omitted) as the High Court here
demonstrates an interesting interaction between
the common law and statute. The
Court identifies that the issue of causation is ‘governed by the Civil
Liability Act’ and then deliberately leaves open ‘whether and to
what extent’ the existing common law March v
Stramare[71] approach to
causation might produce a different result from section 5D. The High Court then
embeds into section 5D (1) the common law ‘but for’ test by
replacing the words ‘necessary condition’ with the pre-existing
common
law terminology of ‘but for’. Whilst acknowledging that the
Latin ‘causa sine qua non’, was known to the
common law as
‘but for’ and that it is oft translated as ‘a necessary
condition’[72], so that the
two have been practically interchangeable, it is indicative of an attitude to
the common law that the High Court chooses
to continue to use the common law
terminology in preference to the words of the section.
Both steps of
interpretation taken in this case – to leave open the application of the
common law ‘common sense’
test to causation in March v
Stramare and to embed the common law terminology of ‘but for’
into section 5D(1) Civil
Liability Act confirm that the causation provisions of the legislation make
little practical difference to the common law. Indeed the approach
elevates the
common law context to a position of primacy in the interpretation of the statute
– dissolving or absorbing the
statute into the common law of negligence.
This argument finds some support in the following brief exchange between Chief
Justice
French and Counsel in the transcript from the hearing of the case:
[73]
FRENCH CJ: We have had more than one case in which the Civil Liability Act applied. Nobody seems to want to talk about it much.
MR CAMPBELL: I was in court when your Honour Justice Gummow spoke about the Bar being a bit slow to latch on to this, but could I say, your Honours, by way of interpolation, that often the view has been taken – perhaps erroneously no doubt in a particular case – that the provisions do not make much practical difference, but that may not be a correct approach.
The Adeels integration of the pre-existing common law test into s
5D Civil Liability Act (NSW) is
echoed[74] in the subsequent
decision of Strong v Woolworths
Limited[75] where the High
Court by majority of 4 (French CJ, Gummow, Crennan & Bell JJ) to 1 (Heydon J
dissenting) allowed the appeal of
the plaintiff Mrs Kathryn Strong against
Woolworths.
In Strong the plaintiff’s right leg had been
amputated above the knee some years before the accident the subject of the case
so she walked
with the aid of crutches. On a Friday about 12.30 pm in September,
2004 she slipped and fell when one of her crutches slipped on
a greasy
‘French fry’ chip on the floor of a shopping mall. The plaintiff
suffered a back injury. The area where the
plaintiff slipped was a sidewalk
sales area outside the entrance to the Big W store which was not far from the
food court. The sidewalk
sales area was used by and was under the control of Big
W. The area had not been inspected or cleaned in the 4 ½ hours before
the
plaintiff was injured. Woolworths had no system in place for the periodic
inspection and cleaning of the area.
The main issue before the High
Court was whether the Court of Appeal was correct in concluding that it was not
open on the evidence,
to apply the ‘probabilistic reasoning’ adopted
in Shoeys Pty Ltd v Allan[76]
(another case of slipping down on a dirty floor in a shop). That reasoning
allows the onus of proof upon the plaintiff to be discharged
by a consideration
of the probabilities, as to how long the substance on which the plaintiff
slipped might have been on the floor,
in circumstances in which the evidence did
not establish when it was deposited.
The NSW Court of
Appeal[77] concluded (having regard
to evidence of other cleaning arrangements in the Mall) that reasonable care
warranted periodic inspection
and necessary cleaning at 15 or not less than 20
minute intervals. The NSW Court of Appeal held, applying s 5D Civil Liability
Act 2002 (NSW), that Mrs Strong had failed to prove that the failure of
Woolworths to have the 15/20 minute cleaning system in place, had
caused the
fall[78]. The High Court reversed
the Court of Appeal finding holding that the plaintiff’s onus of proof
could be discharged by consideration
of the probabilities where the evidence did
not establish when the chip was dropped. The High Court held that on the balance
of probabilities,
the chip had been on the floor for longer than 20 minutes, so
that if Woolworths had a proper system of inspection and cleaning in
place, the
chip would probably have been discovered and removed before the
plaintiff’s fall. The plaintiff was therefore entitled
to
succeed.
Despite overturning the Court of Appeal decision, the High Court
held that the Court of Appeal was correct in its approach to causation
under s
5D(1) Civil Liability Act 2002 (NSW). It is noteworthy that the Court of
Appeal held that the statutory test had ‘continuity’ with the
previous common
law stating:
The test for causation under section 5D(1)(a) has some measure of continuity with the previous common law, because if A is a necessary condition for the occurrence of B, one can always say that B would not happen but for A.[79]
And further observed:
It is only if the “necessary condition” test in section
5D (1)(a) is satisfied that there can be causation within the meaning of section
5D(1).[80]
The High
Court appeal did not clarify the extent to which other common law notions about
causation were encompassed by s 5D Civil Liability Act 2002
(NSW)[81] however the majority
justices held that s 5D (1) (a) is ‘a statutory statement of the
‘but for’ test of
causation’[82] , referring to
Adeels Palace v Moubarak.[83]
Further, in Strong the Court articulated the lack of coverage of common
law rules in the Civil Liability Act stating that:
As earlier noted, the limitations of the "but for" analysis of factual
causation include cases in which there is more than one sufficient
condition for
the occurrence of the plaintiff's injury. At common law, each sufficient
condition may be treated as an independent
cause of the plaintiff's injury. The
Ipp Report noted the conceptual difficulty of accommodating cases of this
description within
a "but for" analysis, but made no recommendation because the
common law rules for resolving cases of "causal over-determination"
were
generally considered to be satisfactory and fair. How such cases are
accommodated under the scheme of s
5D does not call for present consideration. (references
omitted).[84]
This point is captured in an interchange between Justice Gummow and Mr Toomey, QC (the appellant’s counsel) in the High Court transcripts[85] where His Honour asks ‘..does 5D(1) do any more than restate succinctly what everyone knew?’
GUMMOW J: This expression “necessary condition” where does that come from? What is the provenance of it? ... I do not think the people drafting this were writing on a blank slate.
MR TOOMEY: It has been so interpreted, your Honour, by the New South Wales
courts before this case and the New South Wales Court of
Appeal had said, well,
it just states the common law.
The final case on causation is Wallace v
Kam[86], another unanimous joint
judgment from the High Court of Australia on the question of causation under s
5D Civil Liability Act 2002 (NSW). In this judgment, the High Court as in
Adeels and Strong does not make any reference to the principles of
statutory interpretation, or to the parliamentary context in which the
legislation
was enacted or to any extrinsic material (with a single footnote
reference to the Ipp
Report[87] in respect of a
statement about the common law[88].
The Court clearly did not consider that reference to such extrinsic material was
warranted or justified in order to discern the
purpose of the provision and in
the event that the meaning of the provision was not in doubt, then consideration
of such material
would be inappropriate.
Wallace v Kam was a
medical failure to warn case. The defendant neurosurgeon had negligently failed
to warn the plaintiff of two inherent risks
of a surgical procedure. One of the
two risks, a painful though temporary condition called neurapraxia eventuated.
The other more
serious risk of permanent catastrophic paralysis did not
eventuate. The trial judge found that the plaintiff would have undergone
the
surgery even if warned of the risk of neurapraxia. The trial Judge made no
finding of fact about whether the defendant had failed
to warn the plaintiff of
the more serious risk of paralysis or what the plaintiff would have done if
warned of such risk. The Trial
Judge held that any failure to warn of the more
serious risk which did not eventuate, could not have been the legal cause of the
neurapraxia.
The High Court held, upholding the NSW Court of Appeal
decision, that the surgeon’s failure to warn of one risk (which the
patient
would apparently not have taken and so would not have had the surgery at
all) could not be a cause of the materialisation of a different
risk (one which
the patient was prepared to take). The High Court held that s5D of the Civil
Liability Act 2002 (NSW) (which it noted is substantially replicated in each
Australian State and the A.C.T.) requires that the two questions as to
causation, previously addressed at common law, should be kept distinct: firstly,
the “historical fact as to how particular
harm occurred’ and
secondly, the ‘normative question as to whether legal responsibility
...should be attributed to a
particular person.’
[89] The Court stated that the
distinction between the two issues was often ‘overlooked in the
articulation of the common law’,
and in support of this statement
references the Ipp Report as well as several common law
cases[90].
The High Court
emphasised that the determination under s 5D (1)(a) that negligence was a
necessary condition of harm is ‘entirely factual’ whereas the
determination under s 5D (1)(b) as to scope of liability is ‘entirely
normative’.[91] Further the
Court held, referring to the judgment of Allsop, P in the Court of
Appeal,[92] that the determination
of factual causation under s 5D(1)(a) ‘should not incorporate policy or
value judgments’ which ‘considerations naturally fall within the
scope of liability
analysis in s
5D(1)(b)’.[93] Referring to
Strong v Woolworths[94]
the Court reiterated that a finding of factual causation under s 5D(1)(a)
‘involves nothing more or less than the application of the “but
for” test of
causation.’[95]
The
High Court then considered three factual scenarios presented by previous cases,
all decided at common law[96] and
analysed each by reference to s
5D[97] concluding that in a case
falling within an established class ‘the normative question’ posed
by s 5D(1)(b) is ‘properly answered ...through the application of
precedent’[98]and further that
‘section 5D guides but does not displace common law
methodology.’[99] The Court
then held that ‘the common law method is that a policy choice once made is
maintained unless confronted and
overruled’[100] thereby
mandating the use of common law precedent on policy choices.
The
Court then turned to the normative question posed by s 5D(1)(b) and how it
should be approached in a novel case and held that s 5D(4) requires the court
explicitly to ‘consider and to explain in terms of legal policy whether or
not, and if so why, responsibility
for the harm should be imposed on the
negligent party.’[101] This
statement about s 5(4) interposes the words and to explain in terms of legal
policy into the words of the section which says ‘the court is to
consider (amongst other relevant things) whether or not and why responsibility
for the harm should be imposed on the negligent party’. The Court did not
rely upon any principle of statutory interpretation
in order to read these added
words into the section. Rather it relied upon two common law
decisions[102] to determine that
what is required ‘is the identification and articulation of an evaluative
judgment by reference to ‘the
purposes and policy of the relevant part of
the law.’[103]The Court
cautioned that ‘resort to "common sense" will ordinarily be of limited
utility unless the perceptions or experience
informing the sense that is common
can be unpacked and
explained.’[104]
The High Court then considered what is the ‘limiting principle of
the common law’ with respect to the scope of liability
of a medical
practitioner for failure to warn of a
risk[105] and concluded that it is
not necessarily appropriate for liability to ‘extend to every physical
injury which represents the
materialisation of a risk about which it is the duty
of the medical practitioner to
warn.’[106] The Court looked
to the common law policy underlying the medical practitioner’s duty to
warn of risks and held that it was
‘to protect the patient from the
occurrence of physical injury the risk of which is unacceptable to the
patient.’[107] Given that
the Court held that the scope of liability for breach of duty should reflect
that underlying policy, the normative judgment
which the Court made pursuant to
s 5D(1)(b) was that the surgeon’s liability should not extend to
‘harm from risks that the patient was willing to
hazard.’[108] Accordingly,
the negligence of the surgeon was held not to be the ‘legal cause’
of the plaintiff’s
injury.[109]
Wallace v
Kam is of particular significance because it provides an insight into the
methodology which the High Court sees as prescribed by the
causation provision
in s 5D Civil Liability Act 2002 (NSW). The Court sees the common law as
integral to the normative judgment to be made pursuant to s 5B(1)(b) through
the application of precedent to policy choices.
Wallace v Kam may
be seen as an example of analogical reasoning of the reverse kind from that
predicted by Pound.[110] Here
analogy from the common law is influencing the interpretation and application of
the statute. Arguably, the decision represents
a reception of the common law
into the statutory provision which is the reverse of the process considered by
the old scholars, where
it was thought that statue would be used analogically to
develop common law. In this instance the common law is being used analogically
to interpret and apply statute law. The High Court treats the tort reform
legislation and the common law of negligence as inextricably
intertwined,
certainly insofar as the establishment of the essential element of causation is
concerned.
The High Court has emphasised in recent years the need to
ensure coherence of the common law and statutory rules, particularly with
respect to the imposition of a duty of care in novel cases of negligence. In
Sullivan v Moody[111] the
court recognised ‘the need to preserve the coherence of other legal
principles or of a statutory scheme which governs certain
conduct or
relationships’.[112] The
same consideration has been recognised in Stuart v
Kirkland-Veenstra[113] and
New South Wales v Fahy[114]
and Miller v Miller.[115]
In all these cases the court stressed the objective of ensuring that the
imposition of a duty of care in negligence should engage
the ‘root
principle’ that is ‘captured by any of the expressions
"incongruity", "contrariety" or "lack of
coherence”.’[116] So
development of the common law of negligence must have regard to statutory
regimes applying to certain types of relationship and
also to principles
applicable in other branches of the law including equity and
contract.[117] This approach is
consistent with the approach described above concerning the inter-relationship
between the tort reform legislation
and the common law where the court uses the
common law context to inform the interpretation and application of the
legislation. Indeed,
Professor McDonald observed in 2005 that it would be
‘important for advocates and judges to look past the statutory wording
to
the common law context within which the enactments operate and to promote and
restore coherence in the tort of
negligence.’[118]The High
Court attitude to the integration of common law concepts into the causation
provisions of the tort reform legislation certainly
promotes coherence between
the two streams of law and is in keeping with established High Court doctrine
concerning the application
of the law of negligence.
There is a converse
issue about the coherence of the legislation with the common law as recognised
by Professor Cane who has written
that:
Legislation necessarily operates against the backdrop of all the law – both judge made and statutory – existing at the time it is enacted and this severely limits the extent to which the legislature can afford to ignore considerations of coherence and consistency in drafting any particular statute.[119]
So the application of the tort reform legislation in a manner consistent
with the common law and informed by the common law is a positive
step toward
achieving coherence of statute and common law in the negligence sphere.
Moreover, it is indicative of progress toward
a degree of unification of statute
and common law which has not been seen previously.
(b) Decisions about provisions which limit the common law and do not determine an element of the cause of action in negligence: let the words speak for themselves.
It is interesting to juxtapose the above
decisions on causation with three decisions that turn on provisions of the tort
law reform
legislation which do not deal with the elements of the cause of
action in negligence but which diminish or alter aspects of the common
law.
Again, the cases concern the Civil Liability Act 2002 (NSW). As the
analysis which follows highlights, these decisions place much more emphasis upon
the textual reading of the statutory
provision rather than the common law
context. We contend that this is because the relevant provisions limit common
law rights and
there is consequently less opportunity or imperative for the High
Court to adopt an approach which has the effect of unifying the
two streams of
law. As Professor Finn noted if a statute is ‘antithetical to a
fundamental theme in common law’ it should
be interpreted
strictly.[120]
Chronologically,
the first of these cases is Wicks v State Rail Authority of New South
Wales; Sheehan v State Rail Authority of New South
Wales[121] (Wicks)
where the High Court provided guidance upon how to approach Part 3 of the
Civil Liability Act 2002 (NSW) which covers liability for mental
harm. The practical outcome of the decision is that the tort law reform
legislation (while
not identical throughout Australian jurisdictions) is to be
interpreted consistently with the common law.
The case involved a claim
for mental harm by police involved in a rescue operation following a train
disaster. Two policemen, Mr Wicks
and Mr Sheehan were amongst the first to
arrive to assist the dead and injured at the site of the accident where a
commuter train
derailed leaving 7 dead and many seriously injured. Both men
arrived at the scene at around 7am and left at 2-3pm and claimed various
forms
of psychiatric disorder as a result.
The defendant, the State Rail
Authority (SRA), admitted negligence but argued no liability on the basis of
section 30(2) of the Civil Liability Act 2002 (NSW) which is in
the following terms:
(2) The plaintiff is not entitled to recover damages for pure mental harm
unless:
(a) the plaintiff witnessed, at the scene, the victim being killed,
injured or put in peril, or
(b) the plaintiff is a close member of the family
of the victim.
In
Wicks the SRA argued that the policemen were unable to claim they
witnessed any of the victims ‘...being killed, injured or put in
peril’ as required by s30(2)(a). The SRA argued that the word
‘being’, in the present tense, meant that the appellants
had to be
at the scene at the moment at which a person was being killed, injured
or put in peril – and that it followed that because the appellants
arrived at
the scene after the accident they were prevented from recovering
under the section.
The High Court rejected the SRA’s argument
observing that:
It would not be right, however, to read s
30, or s
30(2)(a) in particular, as assuming that all cases of death, injury or being
put
in peril are events that begin and end in an instant, or even that they are
events that necessarily occupy only a time that is measured
in minutes. No doubt
there are such cases. But there are cases where death, or injury, or being put
in peril takes place over an
extended period. This was such a case, at least in
so far as reference is made to victims being injured or put in
peril.[124]
In reaching
this conclusion the High Court noted the absence of extrinsic materials to
assist with interpretation, specifically observing
that section 30 does not take
a form recommended by the Ipp Report and that the Second Reading Speech contains
‘no useful statement
about why s30 takes the form it
does.’[125] The approach
taken by the High Court ignores the legislative motivation of the legislation
and instead refers to the words Parliament
used. This is again demonstrated in
the transcripts to the
case:[126]
GUMMOW J: The first question about section 30 is headed “Limitation on recovery for pure mental harm arising from shock”, right?
MR MORRIS: Yes, your Honour.
GUMMOW J: This Act cuts down common law rights.
MR MORRIS: It does, your Honour.
GUMMOW J: Why should it be given a generous interpretation?
MR MORRIS: Well, your Honour, it has to be given an interpretation within the meaning of its words.
GUMMOW J: Of course.
Here, in this exchange at the hearing of the
special leave application, Justice Gummow accepts that the words of the statute
have
primacy. This interchange demonstrates the truth of Justice
Spigelman’s extra-judicial observation that ‘the task of
the courts
in statutory interpretation is to determine what Parliament meant by the words
it used. The courts do not determine what
parliament intended to
say’[127]: a point which
accords with Justice Kirby’s extra-judicial observation that:
The context of contested legislation may appear to point in a particular direction. The purpose of the legislation may arguably point in the same direction. But if the text of the legislation points with sufficient clarity in a contrary direction, the
judge, in Australia, will normally give primacy to that language. He or she will
override the inclination to which context, purpose (and on one view the text)
might otherwise point the judicial decision-maker.[128]
Of course the exchange above between Justice Gummow and the Bar also
demonstrates the truth of the observation by Posner that the
judge
‘usually begins not with the language of the statute but with some
conception of its subject matter and likely purpose...He
is right to do so,
because it is impossible to make sense of statutory language without some
context.[129] In making this
observation Posner is not denying the importance and often decisive nature of
the words of the statute but rather
recognising that a judge will often begin
somewhere else. In the Australian context Posner’s observation has been
recast by
Justice Spigelman who has acknowledged that ‘[I]t has long been
accepted that words do not exist in
limbo.’[130]
In the
second decision, Insight Vacations Pty Ltd v
Young[131], the High Court
again adopts a literal approach to interpretation of the statute in a short,
unanimous decision of 40 paragraphs.
This case concerned an exclusion clause in
a contract for the provision of recreational services by Insight to the
plaintiff who was injured while in Europe on a bus tour operated by
Insight. The clause exempted Insight from liability in respect of
an accident where the passenger in a motor coach was not wearing a provided seat
belt. The plaintiff
fell whilst onboard a tour coach when she was standing up to
retrieve an item from an overhead locker and the driver braked suddenly.
The
plaintiff sued for damages for breach of an implied contractual warranty
(pursuant to section
74 of the Trade Practices Act 1974 (Cth)) as to services being
rendered with due care and skill. The decision in this case concerned section 5
Civil Liability Act 2002 (NSW) (which provides that a term in a contract
for supply of recreation services may exclude, restrict or modify liability for
breach
of an implied warranty) and its interplay with s 74(2A) of the
Trade Practices Act (Cth) which provided that a state law might limit or
preclude liability in respect of a Trade Practices Act implied warranty.
The High Court held that s 74(2A) of the Trade Practices Act 1974
(Cth) did not ‘pick up’ and apply s 5N of the Civil Liability
Act as ‘a surrogate federal
law’[132] and that section
5N does not itself apply to limit or preclude liability, but only permits
parties to certain contracts to exclude, restrict or modify
certain liabilities.
Accordingly, Insight could not rely on the exclusion clause to avoid
liability for the breach of the warranty implied by the Trade Practices
Act.
In reaching this conclusion the High Court discussed the
background to the provision in the Civil Liability Act 2002 (NSW), noting
that the Act made ‘no express provision for any extra-territorial
operation.’[133]
Then[134] the Court discussed and
applied the rules of statutory interpretation in section 12(1)(b) of the
Interpretation Act 1987 (NSW) and the decision in Kay’s Leasing
Corporation Pty Ltd v
Fletcher[135] (also referring
to part 1A, Div 5 and ss 5J(1) and 5K Civil Liability Act 2002 (NSW)) to
conclude that:
Reading s 5N(1) as hinging on the place of performance of the contract best gives effect to the purposes and text of the provision when it is read in its statutory context.[136]
In short this is a ‘textbook approach’ of applying the rules of statutory interpretation to the Civil Liability Act 2002 (NSW) to arrive at a conclusion as to the literal meaning of s 5N. This approach is, we argue, in keeping with an attitude to a limiting provision (s 5N is a provision enabling avoidance of common law liability) which focuses on a literal interpretation of the section rather than to situate the provision within a larger common law context.
In
the third decision, Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty
Ltd[137] ( Hunt &
Hunt ) the High Court was asked to consider the proportionate liability
provisions comprised in Part 4 of the Civil Liability Act 2002 (NSW).
These provisions fundamentally alter the common law rules of joint and several
liability, instead imposing a regime of proportionate
liability in respect of
property or purely financial loss caused by concurrent wrongdoers. In Hunt
v Hunt the defendant lawyers had negligently failed to include in a mortgage
document a covenant for the repayment of the specific amount
of money secured by
the mortgage. Mitchell Morgan Nominees Pty Ltd, the plaintiff, had advanced
money on the security of the mortgage
to a fraudulent person (bankrupt by the
time of trial) who had forged a signature on a loan agreement and the mortgage.
The loan
agreement was void by reason of the forgery. Had it not been for the
failure of the lawyers to include in the mortgage a covenant
to repay the sum
advanced, Mitchell Morgan could have recovered the advance pursuant to the
mortgage. As it was, the mortgage secured
nothing, so that Mitchell Morgan was
unable to recover its advance. The lawyers were held to have been negligent at
trial. The only
issue on appeal was whether the lawyers were concurrent
wrongdoers for the purpose of Part 4 of the Civil Liability Act 2002
(NSW) which provides for proportionate liability (as opposed to solidary
liability) of concurrent wrongdoers in cases of property
damage or purely
economic loss.
The provision of the Civil Liability Act 2002
(NSW), which fell to be considered by the High Court, was the definition of a
‘concurrent wrongdoer’ in s 34(2):
In this Part, a concurrent wrongdoer, in relation to a claim, is a person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim.
The High Court was divided (3 Justices to 2) on the application of that
definition in the circumstances of the case. The majority
(French CJ, Hayne
& Kiefel JJ) held that the lawyers were concurrent wrongdoers (with the
fraudsters) within the definition and
that therefore they were liable only for a
proportion of the plaintiff’s loss according to the extent of their
responsibility
for the damage. The chief issues on appeal involved the
identification of the loss or damage caused by the lawyers’ negligence
and
whether there was any person other than the lawyers whose acts also caused that
damage.
The majority judgment provides a detailed consideration of the context and
statutory purpose of Part 4 of the Civil Liability Act 2002 (NSW),
referring to much extrinsic material to evidence the purpose and legislative
policy of the provisions[138]. The
extrinsic material relied
upon[139] was the Final Report of
the Inquiry into the Law of Joint and Several Liability (The Davis
Report), 1995;[140] the
contribution legislation in Australian
jurisdictions[141]; the Second
Reading Speech in respect of the Civil Liability Amendment (Personal
Responsibility) Act 2002
(NSW);[142] the Explanatory Notes
to that legislation;[143] and the
draft model provisions (reflecting the recommendations of the Davis Report)
released by the Standing Committee of Attorneys-General
in
1996.[144] The Judgment refers to
the Ipp Report only by way of footnote, because though it recommended
that solidary liability should be retained in relation to personal injury
or
death claims,[145] it did not
consider whether proportionate liability should be introduced in relation to
property damage or economic
loss.[146]
Having considered
all these extrinsic
materials,[147] the majority held
that the purpose of Part 4 is to ‘give effect to a legislative policy that
in ...claims ... for economic loss or property damage, a defendant should be
liable only to the extent of his or her
responsibility’[148]. The
majority then concluded that ‘the purpose of Part 4 is achieved by the
limitation on a defendant’s liability effected by s 35(1)(b)... [to] the
sum which represents the defendant’s
proportionate liability as determined
by the court.’[149] In
making its determination as to whether the defendant law firm was a concurrent
wrongdoer within the definition in section 35(1),
the majority Justices
considered that it would be consistent with the policy of Part 4 of the Act to
impose proportionate liability rather than joint and several
liability.[150]
The majority identified the damage caused by the lawyers’ negligence as the inability of the plaintiff to recover the money it had advanced.[151] The Court of Appeal had identified the damage to the plaintiff as not having the benefit of security for the funds[152]. The majority in the High Court found that this was the immediate effect of the lawyers’ negligence but pointed out that a mortgage negligently drawn is not necessarily productive of loss.[153] The damage is sustained and the cause of action accrues only when recovery is impossible so that the real nature of the loss is the inability to recover the money whilst the ineffective security is the effect giving rise to the loss.
The minority Justices Bell and Gageler held the opposite view on the nature of the damage caused by the lawyers: that the damage was the lack of security for the loan which was different in kind form the damage caused by the fraudsters. Their Honours held that to find that the lawyers and the fraudsters were concurrent wrongdoers and thus to give to the lawyers the benefit of proportionate liability, would be to transfer to the plaintiff ’some or all of the very risk against which it was the duty of [the lawyers] to protect [the plaintiff].’ This result would be ‘altering rights and duties to an extent not necessary to achieve the identified statutory purpose.’[154] The minority held that the identified statutory purpose was to include the plaintiff as bearing some or all the risk of a wrongdoer being impecunious, insolvent or untraceable as stated by Professor Davis in the 1995 Final Report of the Inquiry into the Law of Joint and Several Liability[155]. This appears at first blush to be slightly different from the purpose identified by the majority, because it casts the purpose from the perspective of the plaintiff’s risk of non-recovery from an absent or unfinancial wrongdoer. Conversely the purpose identified by the majority concerns the limitation of the defendant’s liability, according to responsibility for the damage. The two views are complementary in that they represent effectively two sides of the same coin but they produce opposite results.
So, in this case we have extensive resort to extrinsic material and statutory purpose to apply Part 4 of the Civil Liability Act 2002 (NSW). The literal approach to interpretation is consistent with a restrictive approach to a provision which limits common law rules. In contrast, when the High Court majority turns to the question of causation we again see a return to the relationship between the common law and the Civil Liability Act 2002 (NSW) being especially entwined and we see that the common law has a profound influence on the application of the statutory provision. Here, with respect to causation the court had to determine whether in addition to the lawyers, there was another person whose act or omission caused the plaintiff’s loss, in order for the proportionate liability provision to apply. The majority’s analysis of the causation question for the purpose of s 34 (2) is by reference to the common law rather than specifically to s 5D of the Civil Liability Act 2001 (NSW).
The majority refers to s 5D (1) as containing ‘general principles to be applied in determining whether negligence caused particular harm.’[156] Yet, the detailed examination of the causation question in s 34(2) later in the judgment[157] is entirely reliant on common law principles and authorities. In particular, their Honours state that:
Part 4 acknowledges, as does the common law, that a wrongdoer’s acts may be independent of those of another wrongdoer yet cause the same damage.[158]
They state that ‘causation is largely a question of fact, to be approached by applying common sense’ (at [43]) citing March v Stramare (E & MH) Pty Ltd[159] and Chappel v Hart [160] and then add:
This is not to deny that value judgments and policy have a part to play in causation analysis at common law and, as has been observed, both factual causation and scope of liability elements are referred to in s 5D(1) of the Civil Liability Act.[161]
The majority look to the common law concept of material contribution and
conclude that the fraudsters’ conduct in inducing the
plaintiff to enter
into the loan transaction and pay the funds was a material cause of the harm
which resulted.[162] It was
pointed out that the application of the ‘but for’ test to the
present case did not assist in determining whether
the acts of the two
successive wrongdoers were concurrent causes of the loss and the majority
referred to the criticisms of the ‘but
for’ test in March v
Stramare (E & MH) Ltd and the fact that ‘the law has always
favoured’[163] the common
sense approach to causation.
The majority in applying the common law of
material contribution to determine causation pursuant to s 34(2), does not
apparently apply
s 5D Civil Liability Act 2002 (NSW). That section
specifically applies to a finding that negligence caused harm and
requires a finding that the negligence was a ‘necessary condition’
of the occurrence of the harm and
also that it is appropriate for the scope of
the negligent person’s liability to extend to the harm so caused. The acts
of
the fraudsters which were relevant to the s 34(2) definition of concurrent
wrongdoer could have been characterised as deliberate acts of fraud, rather than
negligent acts. The majority
judgment does not specifically address this point
but that is perhaps one explanation for the majority reliance upon the common
law
and in particular, the cases on material
contribution[164] and the common
law common sense approach to determine causation, rather than on s 5D of the
Act.
An alternative reading of the majority judgment, and one that is
consistent with the approach in Wallace v
Kam,[165] is that the majority
implicitly takes the view that the general principles embodied in the causation
provision in s 5D, encompass
all the common law concepts relied upon in the
judgment. This later possibility would however be at odds with the statements of
the
High Court in Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v
Bou Najem[166] about the
possible differences between s 5D and the common law. There the Court held that
section 5D differs from the common law
common sense approach demonstrated
in March v Stramare because it treats factual causation and
scope of liability as separate and distinct issues and ultimately decided that
it was:
not necessary to examine whether or to what extent the approach to
causation described in March v Stramare might lead to a
conclusion about factual causation different from the conclusion that should be
reached by applying s
5D(1).[167]
The High
Court had held in Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v
Bou Najem that the s 5D (1) requirement for causation that negligence
is a necessary condition of harm, is to be determined by the common law
"but
for" test. The court also stated (obiter) in Strong v Woolworths
Limited[168] that
a material contribution to harm must satisfy the ‘but for’ test of
causation in order to satisfy s 5D causation requirements.
These matters were
not addressed at all in the Hunt & Hunt case on the question of
whether the acts of the fraudsters were acts which caused the loss for the
purpose of determining whether
they were concurrent wrongdoers under s 34(2).
Nevertheless, those acts would satisfy the ‘but for’ test as
suggested
by the majority.[169]
The analysis of causation in the Hunt & Hunt case with its
emphasis on common law principles underlines the view that legislation and
common law cannot be seen as separate and
independent simply because of their
independent sources. Rather they do ‘exist in a symbiotic
relationship.’[170] The
Hunt & Hunt case further illustrates the nuanced and flexible
approach of the High Court to the tort reform legislation whereby the Court
adopts
a literal approach to interpretation of the limiting provisions with
respect to proportionate liability yet on the related causation
question, the
court looks to the common law for its analysis.
Conclusion
The common law world has long puzzled over the interplay between common
law and statute. As Diver notes in the American context ‘[E]ach
generation has its theory of statutory
interpretation’[171] and
similarly, if not more pithily Justice Spigelman observes that ’law is a
fashion industry.’[172] This
article demonstrates change and nuance in the approach to statutory
interpretation by the High Court in the six cases which
have interpreted the
tort law reform legislation. These decisions illustrate a range in judicial
attitude from the traditional ‘oil
and water’ approach to the
relationship of statute and common law involving a literal reading of a limiting
provision of the
statute in Wicks, to a ‘milky pond’ approach
where the statutory provision is interpreted in its common law context, as in
Adeels where prevailing common law notions of causation governed the
interpretation of that provision.
The analysis we have provided proves an
absence of a universal approach to statutory interpretation of tort reform
legislation and
demonstrates a nuanced and flexible approach. It confirms that
the common law is the paramount context within which reform of the
tort of
negligence is to be situated. The approach of the High Court, particularly to
the ‘framework’ causation provisions
of the NSW reform legislation,
evidences a much more holistic relationship between statute and common law than
existed previously:
a relationship that might be recognised by Stone or Pound as
approaching the ‘ideal of a unified system of judge-made and statute
law
woven into a seamless
whole.’[173] That said, the
six High Court cases illustrate that, in the interpretation of a single statute
– the Civil Liability Act 2002 (NSW) –judicial methodology
ranges from a literal to a contextual approach to statutory interpretation
depending on the nature
of the provision under consideration.
The above
analysis supports the observations of Gleeson CJ and Justice Gageler (which
began this article) that common law and statute
‘exist in a symbiotic
relationship’[174] and that
’[T]he common law and statute law as applied by courts are, to a
significant degree, products of the same inherently
dynamic legal
process.’[175] Indeed the
diversity of approach of the High Court to statutory interpretation of a single
statute – the Civil Liability Act 2002 (NSW) - acknowledges the
need for close integration of the common law of negligence into some areas of
the statute while restricting
the provisions of the statute which diminish or
alter other aspects of the common law. The High Court’s interpretation of
the
six cases on the tort law reform legislation adds much strength to the
argument that the development of the future relationship between
statute and the
common law will be facilitated through being viewed as an integrated whole where
the two source of law merge together
in a ‘milky pond’ rather than
remain disparate entities as ‘oil and water’.
[*] Pam Stewart & Anita
Stuhmcke, Faculty of Law, University of Technology Sydney.
[1] Brodie v Singleton Shire
Council [2001] HCA 29; (2001) 206 CLR 512, 532 [31] per Gleeson
CJ.
[2] S Gageler, ‘Common
Law Statutes and Judicial Legislation: Statutory Interpretation as a Common Law
Process’ (2011) 37(2)
Monash Law Review
1.
[3] [2009] HCA 48; (2009) 239 CLR
420.
[4] [2012] HCA 5; (2012) 285 ALR
420.
[5] [2013] HCA 19; (2013) 297 ALR
383.
[6] [2010] HCA 22; (2010) 241 CLR
60.
[7] [2011] HCA 16; (2011) 276 ALR
497.
[8] [2011] FCA 1123; (2013) 297 ALR
56.
[9] Brodie v Singleton
Shire Council [2001] HCA 29; (2001) 206 CLR 512, 532 [31] per Gleeson
CJ.
[10] Gageler, above n 2.
[11] Of course statutory
incursion into the common law of negligence has been a constant see workers
compensation schemes: Safety, Rehabilitation and Compensation Act 1988
(Cth); Seafarers Rehabilitation and Compensation Act 1992 (Cth);
Military Compensation and rehabilitation Act 2004 (Cth); Workers
Compensation Act 1998 (NSW); Workers Compensation and rehabilitation Act
2003 (Qld); Workers Rehabilitation and Compensation Act 1986 (SA);
Workers Rehabilitation and Compensation Act 1988 (Tas); Accident
Compensation Act 1985 (Vic); Workers Compensation and Injury management
Act 1981 (WA); Workers Compensation Act 1951 (ACT); Workers
Rehabilitation and Compensation Act 1986 (NT). (There is also in some
States special legislation dealing with particular types of industry or claim:
for example, Workers Compensation (Dust Diseases Act 1942 (NSW). Other
examples include statutory schemes for motor accident compensation; compensation
to relatives legislation and legislation
with respect to contributory
negligence.
[12] A Burrows,
‘The Relationship between Common Law and Statute in the Law of
Obligations’ (2012) 128 LQR 232 at
233.
[13]
Ibid.
[14] See for example, Jack
Beatson, ‘Has the Common Law a Future?’ (1997) 56 Cambridge Law
Journal 291.
[15] Hon JJ
Spigelman, ‘The Intolerable Wrestle: Developments in Statutory
Interpretation’ (2010) 84 ALJ
822.
[16] Burrows, above n
12.
[17] [2009] HCA 48; (2009) 239 CLR
420.
[18] [2012] HCA 5; (2012) 285 ALR
420.
[19] [2013] HCA 19; (2013) 297 ALR
383.
[20] [2010] HCA 22; (2010) 241 CLR
60.
[21] [2011] HCA 16; (2011) 276 ALR
497.
[22] [2011] FCA 1123; (2013) 297 ALR
56.
[23] P Finn, ‘Statutes
and the Common Law’ (1992) 22 University of Western Australia Law
Review 7 at 20.
[24] Ibid at
23-24.
[25] Sir Edward
Coke’s Institutes of the Lawes of England (published between 1628
and 1644) and Sir William Blackstone’s Commentaries on the Laws of
England (published between 1765 and
1769).
[26] R Pound,
‘Common Law and Legislation’ (1908) 21 Harvard Law Review
383.
[27] Ibid
385.
[28] Ibid
386.
[29] HF Stone, ‘The
Common Law in the United States’ (1936) 50 Harvard Law Review
4.
[30]
Ibid.
[31] Sir Rupert Cross,
Precedent in English Law, 3rd Edn., Oxford,
1977.
[32] P Atiyah,
‘Common Law and Statute Law’ (1985) 48 Modern Law Review
1.
[33] Ibid at
14.
[34] Ibid at
18.
[35] Ibid at
17.
[36] Atiyah uses the Sale of
Goods legislation as an
example.
[37] Ibid at
25.
[38] Beatson, above
n14.
[39] Ibid at
301.
[40] [1995] UKHL 9; [1995] 2 AC
633
[41] The Australian High
Court reached the same conclusion in very similar circumstances in Sullivan v
Moody (2001) 207 CLR 562.
[42] J Beatson, ‘The
Role of Statute in the Development of Common Law Doctrine’ (2001) 117
L.Q.R. 247 at 247.
[43]
Beatson, above n 14 at 302.
[44]
Burrows, above n 12 at 240. Justice Stephen Gageler of the High Court of
Australia writing in 2011 (prior to his appointment to the
High Court) referred
to ‘common law statutes’ in ‘Common Law Statutes and Judicial
Legislation: Statutory Interpretation
as a Judicial Process’ (2011) 37(2)
Monash Law Review 1.
[45]
Ibid at 242-3.
[46] Ibid at
243.
[47] Finn, above n 23 at
20.
[48]
Ibid.
[49] Ibid at
23-24.
[50] P Cane, ‘Taking
Disagreement Seriously: Courts, Legislatures and the Reform of Tort Law’
(2005) 25(3) Oxford Journal of Legal Studies, 393 at
416.
[51] B McDonald, ‘The
Impact of the Civil Liability Legislation on Fundamental Policies and Principals
of the Common Law of Negligence’
(2006) 14 Torts Law Journal 268 at
298.
[52] Justice Michael Kirby,
‘Towards a Grand Theory of Interpretation: the Case of statutes and
Contracts’ 24(2) Statute Law Review 95-111 at
96.
[53] Hon JJ Spigelman,
‘From Text to Context: Contemporary Contractual Interpretation’
(2007) 81 ALJ 322.
[54]
Hon JJ Spigelman, above n 15, at
824.
[55] Ibid at
110.
[56] Hon JJ Spigelman, above
n 53 at 828.
[57] Hon Michael
Kirby ‘The Never-Ending Challenge of Drafting and Interpreting Statutes
– A Meditation on the career of John
Finemore QC’ [2012] MelbULawRw 4; (2012) 36
Melbourne University Law Review 140; see R S Geddes, ‘Purpose and
Context in Statutory Interpretation’ (2005) 2 UNELJ
5.
[58] Hon Michael Kirby AC CMG,
‘Statutory Interpretation: The meaning of meaning’ [2011] MelbULawRw 3; 35 (2011)
Melbourne University Law Review 113 at
116.
[59] Justice Kirby, above n
57 at168.
[60] Justice Gageler,
above n 2.
[61] Finn, above n 23
at 12.
[62] The formulation of
causation will, in terms of the relationship between statute and the common law
presumably apply to the remaining
jurisdictions which have enacted provisions in
very similar, if not identical, terms. Civil Liability Act 2003 (Qld) s
11; Civil Liability Act 1936 (SA) s 34; Civil Liability Act 2002
(Tas) s 13; Wrongs Act 1958 (Vic) s 51; Civil Liability Act 2002
(WA) s 5C; Civil Law (Wrongs) Act 2002 (ACT) s 45.
[63] Wallace v Kam [2013] HCA 19; (2013)
297 ALR 383 at [22].
[64]
Review of the Law of Negligence Final Report, Commonwealth of Australia,
Canberra, 2002 (The Ipp Report) [1.4]-[1.6] http://revofneg.treasury.gov.au [7.49] 117.
[65]
Ibid, Recommendation 29 at
117.
[66] J Stapleton,
‘Factual Causation’ ( 2010 ) 38 Federal Law Review
467.
[67] [2009] HCA 48; (2009) 239 CLR
420.
[68] The Court did also
discuss the meaning and application of section 5D(2) and held that it was not
relevant here due to the fact that
‘the “but for” test is now
to be (and has hitherto been seen to be) a necessary test of causation in
all but the undefined group of exceptional cases contemplated by s
5D(2).’Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v
Bou Najem [2009] HCA 48; (2009) 239 CLR 420. at [55] (per French CJ, Gummow, Hayne,
Heydon and Crennan JJ)
[69] At
[41]-[45] per French CJ, Gummow, Hayne, Heydon and Crennan
JJ
[70] At
[51].
[71] [1991] HCA 12; (1991) 171 CLR
506.
[72] HLA Hart and T Honore,
Causation in the Law 2nd Edn, 1984, Clarendon, Oxford; T
Honore, ‘Necessary and Sufficient Conditions’ in DG Owen, (Ed),
Philosophical Foundations of Tort Law 1997, Clarendon, Oxford, Ch
16.
[73] ([2009] HCA Trans 233)
(22 September 2009) Office of the Registry Sydney No S191 of
2009.
[74] ‘Echo’ is
used as description here, given that the majority joint judgment is just 40
paragraphs long and the discussion
of the Ipp Report is limited to just four
paragraphs in the judgment.
[75]
[2012] HCA 5; (2012) 285 ALR 420.
[76] (1991)
Aust Torts Reps 81-104.
[77]
Woolworths Ltd v Strong — Unreported, Supreme Court, NSW, Court of
Appeal, Campbell JA, Handley AJA and Harrison J, 2 Nov 2010, [2010] NSWCA 282.
[78] Ibid at [70] per Campbell
JA with whom Handley AJA and Harrison JA
agreed.
[79] At [46] per Campbell
JA with whom Handley AJA and Harrison JA
agreed.
[80] At [48]-[49] per
Campbell JA with whom Handley AJA and Harrison JA
agreed.
[81] This was a live
issue in the NSW Supreme Court and Court of Appeal following the decision in
Woolworths v Strong: See Benic v NSW [2010] NSWSC 103; Zanner v
Zanner [2010] NSWCA 343.
[82]
[2012] HCA 5; (2012) 285 ALR 420 at [18].
[83]
[2009] HCA 48; (2009) 239 CLR 420. The NSW Court of Appeal has considered and applied s
5D(1) in Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364; Woolworths Limited v
Strong & Anor [2010] NSWCA; Benic v State of New South Wales
[2010] NSWSC 1039; Zanner v Zanner [2010] NSWCA 343; Ruddock v
Taylor [2003] NSWCA 262; (2003) 58 NSWLR
269.
[84] [2012] HCA 5; (2012) 285 ALR 420 at
[28].
[85] Strong v Woolworths
Limited T/as Big W & Anor [2011] HCATrans 194 (5 August
2011).
[86] [2013] HCA 19; (2013) 297 ALR
383.
[87] The Ipp Report, above n
64.
[88] [2013] HCA 19; (2013) 297 ALR 383 at
[11].
[89] [2013] HCA 19; (2013) 297 ALR 383 at
[11].
[90]
Ibid.
[91] At
[14].
[92] Wallace v Kam
[2012] NSWCA 82; (2012) Aust Torts Reports 82-101 at 66,044-66,045
[4].
[93] [2013] HCA 19; (2013) 297 ALR 383 at
[15].
[94] [2012] HCA 5; (2012) 246 CLR 182 at
190-1 [18],
[95] At
[16].
[96] Rosenberg v
Percival (2001) 205 CLR 43;Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479;
Chappel v Hart (1998) 195 CLR
232.
[97] [2013] HCA 19; (2013) 297 ALR 383 at
[18]- [21].
[98] At
[22].
[99]
Ibid.
[100]
Ibid.
[101] At
[23].
[102] Barnes v Hay
(1988) 12 NSWLR 337 at 353, quoted in Henville v Walker [2001] HCA
52; (2001) 206 CLR 459 at 491 [98];
[2001] HCA 52.
[103] [2013] HCA 19; (2013) 297
ALR 383 at [23].
[104]
Ibid.
[105] At
[24]-[27].
[106] At
[27].
[107] At
[36].
[108] At
[37].
[109] At
[40].
[110] R Pound, above n 26
at 4.
[111] (2001) 207 CLR
562
[112] Ibid, at [50] per
Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ
[113] [2009] HCA 15; (2009) 237 CLR 215 at
[123] per per Crennan and Kiefel
JJ
[114] [2007] HCA 20; (2007) 232 CLR 486 at
[250] per Crennan J.
[115]
[2011] HCA 9; (2011) 275 ALR 611 at [15]; [56]; [74]; [102] per French CJ, Gummow, Hayne,
Crennan, Kiefel and Bell JJ
[116] Ibid at [102]. For a
discussion of coherence, see WMC Gummow, ‘The common law and
statute’ in Change and Continuity: Statute, Equity and Federalism,
New York, Oxford University Press,
1999.
[117] [2011] HCA 9; (2011) 275 ALR 611
at [102] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ
[118] B McDonald,
‘Legislative Intervention in the Law of Negligence: The Common Law,
Statutory Interpretation and Tort Reform in
Australia’ [2005] SydLawRw 22; (2005) 27 Sydney
Law Review 443 at
482.
[119] Cane, above n50, at
416.
[120] Finn, above n23 at
23- 24.
[121] [2010] HCA 22; (2010) 241 CLR
60.
[122] See Gifford v
Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR
269.
[123] Annetts v
Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR
317.
[124] [2010] HCA 22; (2010) 241 CLR 60 at
[44] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell
JJ.
[125] At
[41].
[126] Wicks v State
Rail Authority of NSW; Sheehan v State Rail Authority of NSW [2010]
HCATrans 15 (12 February 2010) Last Updated: 18 February 2010 Office of the
Registry, Sydney No S262 of
2009.
[127] Hon JJ Spigelman,
above n 53, at 331.
[128]
Justice Kirby, above n 57, at
163.
[129] Richard A Posner,
‘Statutory Interpretation – in the Classroom and in the
Courtroom’ 50 1983 U. Chi. L. Rev. 800 at
808.
[130] Hon JJ Spigelman,
above n 127 at 325 citing Morris v Beardmore [1981] AC 446 at 459.
[131] [2011] HCA 16; (2011) 276 ALR
497.
[132] [2011] HCA 16; (2011) 276 ALR 497,
[26] per French CJ, Gummow, Hayne, Kiefel and Bell JJ. t.
[133] At [16] per French CJ,
Gummow, Hayne, Kiefel and Bell
JJ.
[134] At
[28]-[32].
[135] [1964] HCA 79; (1964) 116 CLR
124.
[136] At
[36].
[137] [2011] FCA 1123; (2013) 297 ALR
56.
[138] At
[10]-[17].
[139] The same
material (and more) was referred to by the minority Justices under the heading
’Legislative Context’: Hunt & Hunt Lawyers v Mitchell Morgan
Nominees Pty Ltd [2013] HCA 10 at [78]- [86] per Bell and Gageler,
JJ.
[140] Commonwealth of
Australia, Inquiry into the Law of Joint and Several Liability: Report of
Stage Two, 1995.
[141] Such
as Part III, Law Reform (Miscellaneous Provisions) Act 1946
(NSW)
[142] New South Wales,
Legislative Assembly, Parliamentary Debates (Hansard), 23
October 2002 at 5764 and New South Wales, Legislative
Council, Parliamentary Debates (Hansard), 19 November 2002 at
6896.
[143] New South Wales,
Civil Liability Amendment (Personal Responsibility) Bill 2002,
Explanatory Notes.
[144]
Standing Committee of Attorneys-General, Draft Model Provisions to
Implement the Recommendations of the Inquiry into the Law of Joint and Several
Liability, 1996.
[145] The
Ipp Report, above n 64, at 178
[12.17]-[12.19].
[146] Ibid at
173 [12.2], 175 [12.8].
[147]
It is notable that all the extrinsic materials which the majority considered,
were identified by Prof. B. McDonald as useful sources
for interpretation
purposes in ‘Legislative Intervention in the Law of Negligence: The Common
Law, Statutory Interpretation
and Tort Law Reform in Australia’ above n
118.
[148] Hunt & Hunt
Lawyers v Mitchell Morgan Nominees Pty Ltd [2011] FCA 1123; (2013) 297 ALR 56 at
[16].
[149] At
[17].
[150] At
[58].
[151] At
[28].
[152] Mitchell Morgan
Nominees Pty Ltd v Vella [2011] NSWCA 390; (2011) 16 BPR 30,189 at 30,198-30,199 [41] per
Giles JA.
[153] [2011] FCA 1123; (2013) 297 ALR
56 at [58].
[154] [2011] FCA 1123; (2013) 297
ALR 56 at [95].
[155]
Commonwealth of Australia, Inquiry into the Law of Joint and Several
Liability: Report of Stage Two, 1995 referred to at Hunt & Hunt
Lawyers v Mitchell Morgan Nominees Pty Ltd [2011] FCA 1123; (2013) 297 ALR 56 [85] per Bell
and Gageler JJ.
[156] [2011] FCA 1123; (2013)
297 ALR 56 at [22].
[157] At
[43]-[56].
[158] At
[41].
[159] [1991] HCA 12; (1991) 171 CLR 506 at 515,
523.
[160] (1998) 195 CLR 232
at 238 [6].
[161] [2011] FCA 1123; (2013) 297
ALR 56 at [43].
[162] At
[51].
[163] At
[55]-[56].
[164] March v
Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 514,
referring to Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47
ALJR 410 at 417; 1 ALR 125 at 138; Tubemakers of Australia Ltd v
Fernandez (1976) 50 ALJR 720 at 724; 10 ALR 303 at
310; Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC
613 at 620; McGhee v National Coal Board [1972] UKHL 7; [1973] 1 WLR 1 at 4,
6, 8, 12; [1972] UKHL 7; [1972] 3 All ER 1008 at 1010, 1012, 1014, 1018; Henville v
Walker [2001] HCA 52; (2001) 206 CLR 459 at 469 [14]; [2001]
HCA 52.
[165] [2013] HCA 19; (2013) 297 ALR
383.
[166] [2009] HCA 48; (2009) 239 CLR 420
at [45].
[167] At
[43]-[44].
[168] [2012] HCA 5; (2012) 285 ALR
420 at [20].
[169] [2011] FCA 1123; (2013) 297
ALR 56 at [55].
[170] Brodie
v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, 532 [31] per Gleeson
CJ
[171] CS Diver,
‘Statutory Interpretation in the Administrative State’ (1985) 133(3)
University of Pennsylvania Law Review 549, 552.
[172] Hon JJ Spigelman,
‘From Text to Context: Contemporary Contractual Interpretation’
(2007) 81 ALJ 322
[173]
Stone, above n 29.
[174]
Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, 532 [31].
[175] Gageler, above n 2.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/UTSLRS/2013/8.html