THE JURISPRUDENCE BEHIND BRODIE v SINGLETON SHIRE COUNCIL

Introduction

In Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council[1] (hereinafter referred to as Brodie and Ghantous, respectively) the High Court of Australia abolished the non-feasance indemnity for highway authorities. This indemnity had been part of the law in Australia since the founding of the colony. It was part of the law received from the English courts and subsequently authoritatively affirmed as part of the law of Australia by two decisions of High Court Buckle v Bayswater Road Board[2] and Gorringe v The Transport Commission (Tas)[3]. The indemnity granted to highway authorities by the rule avoided them being liable for non-feasance in tort "when sued by a road user who suffer[ed]) damage to person or property in consequence of the condition of the highway"[4] where the care and maintenance of the highway lay in the highway authorities. The decision of the High Court was by a majority of four (Gaudron, McHugh and Gummow JJ in a joint judgement and Kirby J) to three (Gleeson CJ, Hayne and Callinan JJ). A non-lawyer in particular might wonder how seven eminent jurists could be so divided about such a basic legal issue and wonder further what the basis of that division might be. One explanation that might be given is that the minority took the view that a change in the law was a matter for the legislature rather than the judiciary. This explanation whilst partially correct would not tell the full story. The question would still remain as to why seven eminent jurists would so sharply disagree about the province of the legislature and the judiciary. The answer to that question might be seen in the legal philosophy or jurisprudential theory the jurists individually adopted (Of course why some jurists might favour a particular jurisprudential theory in preference to another is another issue).

It is the aim of this paper to examine the judgements of the court and from that examination attempt to analyse the jurisprudential theory motivating the various judgments.

Jurisprudential Theories

There are three main theories that are currently significant on the jurisprudential landscape. They are natural law, legal positivism and interpretivism. The latter two theories easily dominate but a natural law theory of jurisprudence still has its supporters. Apart from having some support it has historical significance so far as jurisprudential theory is concerned.

Natural Law Theory

Natural law theory in its strict form would say that the civil law should reflect the natural moral law that is imprinted in human nature. Human beings cannot achieve their potential, their happiness or contentment, or successful relate as a community unless they keep to the natural moral order. Murder, stealing, lack of respect are breaches of the natural order and they are breaches not because of some primitive rationale of expediency, (viz "if I murder, someone might murder me so the preferable thing for me to do is to refrain from murder") but simply because they are wrong. Natural law jurisprudence would hold that the civil law should be sourced in the natural moral law (and of course enact other legislation that might not be so obviously sourced eg traffic laws). Natural law jurisprudence has a significant problem in a pluralist society. That problem is seen in the fact that many in society would not accept that some moral theory claimed to be part of natural moral law has that status. Many people do not accept abortion for example is wrong or perhaps voluntary euthanasia. In a liberal pluralist society where governments are under pressure to legislate a framework for individuals to seek and achieve the goals ("the good") to which they respectively and reasonably aspire, it is probably impossible for a natural law theory of jurisprudence to find a place whatever its merits might be.

Legal Positivism

Legal positivism finds its source in the writings of the utilitarian Jeremy Bentham, his disciple John Austin and perhaps in J S Mill. Its more recent and significant articulation was seen in H L A Hart's book, The Concept of Law[5]. So far as this paper is concerned the theory of legal positivism referred to will be that of Hart.

For legal positivism it was not a necessary truth that where there was law there must also be morality. This did not mean that there might not be some contingent connection between morality and the law. The law of some societies might include moral codes so that law and morality overlap, but the morality gave the law no status. It was the fact that the law was recognised as law, that law was posited, that gave it status.

Further Hart took issue with the idea that the legal validity of any particular law must include a reference to morality[6]. Hart's view of the law has been called a 'plain fact' view[7]. It was a plain fact whether law existed. The law to be applied could be identified once all relevant materials (or facts) were at hand. It was an issue of "getting in" all the facts and seeing whether they fitted into the rules stated by the legislature or decided by the courts. The rules of law were a union of what Hart referred to as "primary" rules and "secondary" rules. Primary rules were rules that imposed a duty and involved physical action or restraint from physical action. They required compliance by individuals. They might be rules that require honesty or forbid violent behaviour. On a different scale were secondary rules which supplemented the primary rules. They were rules 'concerned with the primary rules themselves'[8]. These secondary rules 'specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied and the fact of their violation conclusively determined'.[9] Essential to the regime devised by Hart was rules of recognition. These gave the law certainty. They enable law to be recognised as being law. They were the criteria decisive about whether a law was a law. The rules were recognised by "officials".

Rules of recognition were the ultimate rule in a legal system.

Positivism comes under attack when the matter before the court the subject of adjudication has no clear precedent or statute law which fits into the boundaries of the issues that concern it. For example is a skateboard a "carriage" for the purpose of an enactment forbidding the passage of carriages through a public recreational area? Hart says that in such a situation all the judicial officer….

Hart saw the "open texture" of the English language as inevitably providing interpretative difficulties and at the same time a solution to these difficulties by providing a basis for the use of judicial discretion.

It is this discretionary approach to uncertain cases that bring upon positivists their severest criticism. In the use of the discretion, their critics claim, the rules of recognition are overlooked and the certitude they claim is lost. What is happening, the critics claim is that the judicial officer becomes a legislator and that the litigants before the officer become subject to retrospective law by virtue of the officer's "legislation". In these circumstances certitude is lost and the wealth of importance claimed by positivist for the rules of recognition is devalued[12].

Interpretivism

The founder of interpretivism and its chief exponent is Ronald Dworkin. For Dworkin the claim of certitude by positivism for the rule of recognition is lost in "hard cases". A hard case is a 'situation in the law that gives rise to genuine argument about the truth of a proposition of law that cannot be resolved by resource to a set of plain facts determinative of the issue'[13]. For Dworkin a proper decision in a hard case should be generated by legal principles behind the law[14]. Dworkin distinguished principles and policy. Policy advanced some goal about which there was collective agreement in the community[15]. A principle is not about a goal but about rights. A principle is about 'a requirement of justice or fairness or some other dimension of morality'[16]. For Dworkin it was necessary to go to the principles behind the law to resolve hard cases. Further in going to those principles, the judicial officer should have regard to "the point" of those principles and make the best of them in the light of the matters upon which adjudication is required. In addition the best "moral sense" should be made of those principles when it came to their interpretation and application. That moral sense required that individuals be treated as equals. Equality is the sovereign virtue that gives adjudication integrity. In this way justice and fairness will be achieved.

Dworkin presents us with his ideal judge, Hercules, 'a lawyer of superhuman skill, learning, patience and acumen'[17]. In the constitution of Hercules' jurisdiction a provision provides that no law shall be valid which establishes a religion. The legislature passes a law granting free bus travel to children in parochial schools. Does the law establish a religion? Hercules considers two possible alternatives as the principles behind the constitutional enactment. One might be the avoidance of "social tension or disorder" that might arise from an established religion. Another alternative might be that the constitutional enactment has a "background right to religious liberty". An established religion would infringe this right. Either of these principles will FIT the constitutional enactment ("Fit" is an important concept in interpretivism. It is part of the process of keeping decisions consistent thereby giving the law integrity). However some choice has to be made by Hercules and here the notion of substance emerges. Substance relates to the political philosophy or morality behind the constitution.

Hercules in adopting this method of adjudicating will attempt to make the best sense of all these matters and will act with integrity. He will do this by keeping in mind that at all times he must act on the basis of equality.

Dworkin's theory has been attacked on the basis of subjectivity[19] (see Ronald Dworkin p 9). The adjudicator is left with too much personal choice in matters of "fit", "making the best sense" etc. The answer to that criticism might lay in the response that those matters are taking place against an objective standard of equality and reasonableness.

Brodie and Ghantous

Both these cases were heard together owing to the similar legal issues they raised. The facts in Ghantous[20] were that the applicant fell when she tripped whilst walking on a footpath under the care of the respondent council. The applicant whilst walking, moved towards the verge of the footpath when allowing another pedestrian to pass. In performing this manoeuvre her foot was placed partly on the concrete path and partly on the lower earth verge. This placement of her foot resulted in her fall.

In Brodie[21] the applicant drove a loaded 22 tonne truck across a wooden bridge under the care of the respondent council. The bridge was supported by girders with timber planks forming the road across the bridge. The bridge collapsed and the applicant was injured. There was no suggestion of negligence in the construction of the bridge, but only in its maintenance.

In Ghantous[22] the court found that there had been no failure to maintain improve or keep safe the footpath and accordingly there was no breach of duty by the council. The issue of the justification for the immunity did not really arise in that case. So far as Brodie[23] was concerned, there had been negligence by the Council in failing to maintain the bridge girders. In the event the court found that the immunity for non feasance was no longer justified, the case being remitted to the Court of Appeal to be dealt with further. The remainder of this paper will focus on the justification for the removal of the immunity.

The Majority Judgements

Joint Judgement (Gaudron McHugh Gummow JJ)

  The judgement dealt with the arguments for abolishing the immunity under a number of headings and the analysis and commentary of the judgement will basically follow that structure.

Other jurisdictions

  The distinction between misfeasance and non feasance had been abandoned in Canada (with a similar road system to Australia), USA, New Zealand and The United Kingdom. These jurisdictions of course possessed similar legal systems to Australia. It was noted that the United Kingdom legislation affecting highways cast a heavier statutory duty of care upon defendants than that applicable under ordinary negligence principles. Yet 'the floodgates do not appear to have collapsed'[24]. The joint judgement directs its attention to the fear that indeterminate liability might be cast upon highway authorities in the event of the immunity's abolition.

  Implicit in the above considerations of the court are the questions: what is the point in the immunity, what is the best explanation of its purpose, what is the best interpretation of the meaning behind the immunity? In short how does it fit? These are basic interpretative questions proposed in the writing of Ronald Dworkin[25]. If the point of the immunity is to protect the ratepayers of a cash starved local authority from potential indeterminate liability then the justification is found wanting. Similar jurisdictions do not experience that problem. The gain to the plaintiff being able to recover will not be so great as to burden ratepayers. It might also be noted in passing that there is a general appeal to natural law jurisprudential in raising the issue of indeterminacy. Inherent in natural law are the notions of fairness and justice. Indeterminate liability casts a wide net that potentially traps the unsuspecting and leads to issues of unfair treatment and injustice.

Unprincipled distinctions

  A distinction had arisen in the case law; Borough of Bathurst v Macpherson[26] and Buckle v Bayswater Road Board[27] relating to artificial structures on the highway as against the highway itself. The joint judgement indicated how a variety of unsatisfactory criteria had arisen as a result of this distinction. A tree planted by the highway authority may be an artificial structure on the highway and fall under misfeasance. The roots of that tree raising a footpath in a manner that might cause a plaintiff to trip, fall and be injured would result in recovery of damages by the plaintiff. On the other hand the plaintiff would not recover from the highway authority if the tree was self sown or planted by another authority. Nor could it be said in the latter circumstances that the defendant had adopted the circumstances as a continued nuisance[28]. The judgement dealt with a number of examples of artificial distinctions that had arisen in the authorities under the heading; "Unprincipled Distinctions" and also under the following heading [in the case] of "Misfeasance and Non-feasance."

  The judgement in reviewing the authorities found the decisions depended 'upon capricious differences in factual circumstances'[29].

Artificial legal distinctions that provoke litigation thereby imposing a financial burden on the community bring the law into disrepute. They raise questions in the community about the integrity of the law.

  Apart from the reference to the cost burden the judgement indicated the distinction relating to artificial structures as unprincipled. A review of the authorities offered no principled rationale for its existence. The distinction had resulted in numerous cases employing "disputable judicial escape mechanisms which require the drawing of distinctions not the application of principles". In referring to the cost burden of litigation flowing from the distinction and to the lack of rationale behind it, the judgement is appealing to the necessity for the law to have integrity echoing Dworkin's words:

  The judgement asserts that the diverse distinctions give rise to the impression that there is no single author. They are nit-picking, legalistic and leading to absurd results. They lack coherence because they are not based in principle. Lacking principle they cannot satisfy the requirements of justice and fairness. The distinctions deprive the law of integrity, and bring it into disrepute in the community. Integrity demands that there be consistency throughout the law.

Immunity

  The judgement then dealt with the historical basis for the immunity noting that in statute law any immunity was jealously and strictly constructed. There was no reason why the same position should not apply to the common law. When Russell v The Men of Devon[32], was decided, declaring the immunity, no highway authorities existed in Australia. Further, Russell v The Men of Devon[33] went to issues such as the lack of identification of the individuals who constituted the unincorporated Parish body that built the roads and the lack of requirement of concurrent contribution in relation to those individuals in the law. These matters were never a difficulty in Australia where the identification of a highway authority as a statutory corporation was clear.

  Descriptions of roads in preambles to English statues in those times did not accord with modern day road descriptions

  Historically, then, the judgement is saying, conditions that might have given rise to the principle behind the immunity do not exist. An historical analysis of the basis for the principles and a finding that the basis no longer has validity goes to the integrity of adjudication. As Dworkin states:

Past decisions must be justified not only because of the length of their standing, but also because of their content. Their content must be subject to evaluation and they must be able to be justified on the basis of that evaluation. The approach of the joint judgement in carrying out that evaluation finds the principles behind the past decisions do not pass scrutiny. This is of course an approach that is anti-positivistic. Positivism is not about evaluating law. Positivism is about describing law. (This issue of positivism's anti-evaluative approach will be further developed when dealing with the judgement to the Chief Justice.)

Negligence and Statutory powers

  For some time the Court had been attempting to define a principle that might govern when a duty of care might arise for a statutory authority, for example Sutherland Shire Council v Heyman[36]. In Pyrennes Shire Council v Day[37] and in Crimmins v Stevedoring Industry Finance Committee[38], members of the Court pointed to the control the defendant might have in the circumstance giving rise to the plaintiff's action and the vulnerability of the plaintiff in those circumstances, as principles governing the duty of care of a statutory authority.

   In the joint judgement their Honours stated:

  So far as the joint judgement went, highway authorities were not in the category of statutory authorities lacking control over sources of risk that might occasion injury to plaintiffs. On the contrary 'they have physical control over the object or structure which is the source of risk of harm'[40] . In addition submissions about financial constraints that might arise from the abolition of the indemnity did not stand on closer examination, because 'financial considerations and budgetary imperatives may fall for consideration with other matters when determining what should have been done to discharge a duty of care'.[41] The burden that might otherwise be cast on ratepayers by the abolition of the community was softened by Federal and State financial road grants. Furthermore highway authorities had the benefit of insurance, and insurance spread the costs of a plaintiff's damages that might be imposed on the statutory authority (and perhaps its rate payers) across the community at large.

  The judgement at this stage attempts to be consistent with a developing line of authority that the Court is evolving. By analogy, it is saying recent cases dealing with statutory occupiers having control, care and management, focussed on the occupier's control and the vulnerability of the plaintiff in the particular circumstances. This is the same issue so far as highway authorities are concerned. It is an issue of the highway authority's control and the vulnerability of the plaintiff. The approach the judgement takes is to use the analogy of the more recent cases to find "a place" for the current case and settle a consistent body of law. This is the interpretivist approach at work: to crystallise principles from prior cases and apply them by analogy to the case before the court.

 The other matters raised by the judgement are an appeal to spreading the cost of litigation throughout the community. It is an appeal to fairness being a fundamental criteria when adjudication is called for, not only in respect of rights, but also in relation to the use of community resources. The loss of the immunity will result in fairness, and in a more equitable treatment for plaintiffs. Instead of the injured plaintiff being unable to recover against the negligent authority because of the immunity, the authority will now be required to compensate the plaintiff. The plaintiff will no longer be required to shoulder the loss, as a result of the defendant authority being protected by the immunity. Instead, by the abolition of the immunity, the loss to one will be shared by many, because the burden of the loss will be spread throughout the community, through the utilisation of Federal and State Government grants (taxation) and by the use of insurance.

Precedent

Under this heading the joint judgement makes three important statements:

Where the legal system is discredited, lack of integrity flows. Where this lack of integrity is due to an adherence to precedent then the precedent must be scrutinised. It has been commented previously in this paper[43], that precedent must not just have standing because of its age, but also because of its content. An evaluative process is required to examine that content. Any evaluative process is anti-positivist. Positivism sees the law merely as posited. It is prepared to describe the law, to say what it is, but not to evaluate it. An evaluative process of law necessarily results in morality. It requires law to be measured in terms of criteria such as fairness and justice or equality. These criteria are fundamental natural law concepts. Further (and perhaps because of that) they are concepts to which we are intuitively drawn. This is where positivism and interpretivism can never meet. Interpretivism will always revert to notions of fairness, respect for the individual and ultimately equality, because interpretivism is an evaluative philosophy. In this regard, interpretivism mirrors generally accepted notions of natural law morality as part of its jurisprudence.

This statement implies that individual rights are more important than a legal principle that operates against those rights. There is, of course, a strong strand of utilitarianism in the legal doctrine of stare decisis. It has great purpose. It gives certainty to the law. It provides a map for judges to follow. Approaching it with rigidity can result in a lack of fairness in a particular case. Ronald Dworkin has a saying of 'rights as trumps over collective goals'[45]. He means by this that a collective community goal must not offend the right of each person to equal concern and respect, which is fundamental to each individual. Where a body of precedent is clung to out of respect for the doctrine of stare decisis and that body of precedent offends the right of each person to equal concern and respect, then the retaining of that body of precedent is questionable. It is to these matters that the judgement is appears to be directed.

The judgement then proceeds to analyse why the two cases do not deserve the support that they have been given as authoritative decisions. The judgement refers to the fact that the decisions ignored an earlier authority of the Court Miller v McKeon[47] which took a different approach to highway authorities. This approach is consistent with the Dworkin "chain novel" approach.

  In his explanation of the interpretive method Ronald Dworkin introduces the idea of a chain novel.[48] It is a novel where each chapter is written by a different author. Dworkin then describes the necessity for the author of each chapter to ensure consistency between the characters: their manner of speaking, the necessity for the different aspects of the plot to link together etc. The whole story must overall be coherent. In the same fashion precedents and legal principles must be consistent. But they must be consistent with a goal in mind. That goal is justice and fairness so far as each individual is concerned and that goal will only be achieved by treating people with a concern and respect, that is sourced in equality. Precedent law that is failing to achieve this goal is not good law.

  It is apparent that the joint judgement has adopted an interpretativist approach in its rationale. Its strong emphasis on integrity (the status quo brings the law into disrepute), consistency and historical justification (the precedent law justifying the status quo does not stand up to evaluative scrutiny) justice fairness and equality (the economic cost of a change in the status quo will not lead to indeterminacy and will result in a more equitable outcome so far as plaintiff's are concerned and an outcome that defendant's can well tolerate), indicate the influence of Ronald Dworkin's theory on the approach the Justices have taken. In taking that approach, the judgement is able to provide a compelling rationale for the abolition of the immunity.

Judgement of Kirby J

  The judgement of Kirby J also followed an interpretative approach. It is not intended to deal with the judgement of Kirby J in the detailed manner the joint judgement was dealt with as this would result in repetition. Instead various aspects of the judgement will be highlighted to indicate the interpretative approach.

  The judgement declared that the rule was unsustainable in principle. It was adopted as Australian law without proper regard to the statutory system relating to highway authorities and the ease of identifying those authorities as against the unincorporated bodies that existed when the immunity came into being and the problems in identifying the members of those unincorporated bodies. Further the introduction of the immunity in Australia failed to give consideration to developments in the law of negligence as seen in the early case of Heavner v Pender[49], and the later case of Donoghue v Stevenson[50].

  Kirby J set out a number of principles to which appellate courts should have regard when considering alterations to the common law. There was a need, he stated, for principled and consistent decisions. In that regard any re-expression of the common law must be: compatible with the Constitution[51]; the re-expression must be consistent and follow through the logical consequences of any previous shift[52]; the re-expression must 'contribute to the simplification of legal concepts, replacing categories with principles that will permit a more coherent and efficient application of the common law'.[53] His Honour stated that the process of re-expression has regard to situations where the law is "out of harmony with social conditions", "contains anachronistic categories" or "derogates unjustifiably from the principle of equality before the law."[54] The process of change in the law is not a process confined to legislatures, but is one the Constitution envisages as a function of the courts so far as the common law is concerned.[55]

  All these matters canvassed by Kirby J are supportive of the Dworkin theory of interpretivism. They deal with the need for the law to have integrity, for decisions to be characterised by a consistent story and for decisions to reflect equality and fairness. They also provide a rationale for why the courts should not shrink from making a change to the common law and why changes to the common law are not to be confined to legislatures. These latter matters are particularly evident by his Honour's reference to law being out of harmony with social conditions, or containing anachronistic categories or derogating from the principle of equality. Contrary to any positivist notion these changes are not based on some "rule of recognition", but on a theory of adjudication that

These principles are commonly shared community values and so the judge made law is consistent with community aspirations in the same fashion that legislation might reflect those aspirations.

  In dealing with why alterations to the law might be rejected, his Honour set out further considerations. These considerations had regard to the longevity of the challenged rule, the scope and implication of any change, the effect of the change on "a wide variety of public interests" [57] (particularly where people have ordered their affairs in accordance with the subject matter of the charge), and factors regarding why the legislature has not intervened and made the change. It was important, his Honour indicated, that any change secure a balance.

  The whole thrust of the judgement in its attitude to a change to the law is based on the need for integrity and equality referred to earlier. Further it stresses the need for consistency in the whole body of the law and the need for any change to be seen as part of a legal historical integrated development. It embraces the statement of Ronald Dworkin in Laws Empire;

  The judgement of Kirby J then deals with why the immunity should be abolished. Many of the matters he mentions recount matters in the joint judgement and will not be repeated. The immunity represented "a departure from the ordinary principle that a person, natural or legal, is accountable in the Australian courts for wrongs done to another member of society.[59] "A burden of loss distribution is imposed on the victims of the neglect" of the relevant negligent authority which could hide behind the immunity.[60] The immunity offended the principle that "all persons shall be equal before the courts and tribunals"[61] and finally Kirby J declared;

  There is a more overt emphasis on the offensiveness of the immunity to notions of equality throughout the rationale of Kirby J. The existence of the immunity could not be rationalised in terms of equality, not just in terms of what might be called "legal equality", but also in terms of equality so far as economic resources are concerned. Kirby J is indicating that it is not sufficient for the law to have a general guarantee of a right to equality for citizens and then tolerate social conditions of inequality (eg to tolerate a situation where only the rich can afford a university education or access to medical treatment). Equality demands from the law not just the guarantee of a right to equality, but also a guarantee of equality of access to the benefits of society. What equality of access might mean generates a number of views among writers[63]. But most writers[64] would advocate that the legal right to equality requires legislation conducive to an environment for equality to be exercised. Kirby J in his judgement is making a similar point. The maintenance of the immunity with its emphasis on artificial distinctions and lack of principled precedent supporting it contributes to an environment of inequality.

It is apparent that the judgement of Kirby J like that of the joint judgement is one that is strongly influenced by interpretivism. The emphasis on the equality issue in particular, affirms the Dworkin principle that equality must be the ultimate virtue driving judicial pronouncements.

The Dissenters

Judgement of Gleeson CJ

Gleeson CJ saw the immunity rule as one relating to the responsibilities of persons or bodies managing public facilities and applying public funds to those facilities. The issue underlying the immunity was one of public responsibility and public accountability.

  Gleeson CJ acknowledged the criticisms of the immunity in relation to the arbitrariness of a special rule for highway authorities and the "artificial structure" distinction. The appropriate judicial response to these matters was to have regard to the legal basis of the rule and the policy underlying it. The policy he had dealt with, the legal basis was set out in Gorringe v The Transport Commission (Tas).[67] That case affirmed the earlier decision of Buckle v Bayswater Road Board.[68] (It should be noted that Gleeson CJ usage of "policy" is not to be seen in the same sense that Dworkin uses it as a "community aspiration". For Gleeson CJ policy is really a principle behind the law. What Hart would see as something arising from the "open texture" of the way law works). These cases affirmed the rule was 'giving effect to, the meaning and intendment of Acts of Parliament.'[69] The non-feasance rule provided an example of how

  He continued by giving examples of how '[T]he law affecting the users of public roads involves a complex interplay of legislation and common law principles'.[71] He stated the non-feasance rule as one of statutory construction.

%nbsp Finally the Chief Justice noted that despite the recommendation of a Law Reform Commission that the immunity be abolished, the Government did not act on that recommendation. Following that recommendation the immunity was maintained in subsequent legislation, The Roads Act 1993 (the majority decision took a different view of this matter). This was further indication of the legislature's intent to maintain the rule. It is also indicative of the positivist approach of looking at all the sources that might constitute a recognised rule of law in a matter of adjudication.

  The Chief Justice saw the rule as a matter pertaining to the legislature. It was affirmed by the legislature, it was overlain with political implications. Political implications arose with the budgetary decision of highway authorities, issues of public responsibility, public needs, public accountability. This was its purpose. It should not be interfered with by the courts. This is a separation of powers approach. The guiding principle (or rule of recognition as Hart would put it) being the province of the legislature lying outside the jurisdiction of the court. This approach is affirming that matters of political consideration are outside the province of the court. This is a positivist non-evaluative approach. Interpretivism would take a different view particularly in this particular case. It would say that whilst there may be political consideration in respect of the immunity, they are not the only relevant matters within its parameters. There are issues of fairness, legal integrity and inequality squarely within the province of the judiciary. Further to see the immunity in terms only of political and legislative consideration ignored the fact that it was introduced into the law as 'judge made law'. To see the immunity in terms of a seperation of powers issue is to take a narrow view of its establishment and to ignore its negative effect within the community. In any case interpretivism would say that political consideration are not necessarily outside the province of the judiciary. Each judicial officer must bring to any hard case in particular, the political philosophy of the community as best he or she can. Of course, interpretivism would also say that where an interpretative evaluation indicates the province of a particular law is clearly that of the legislature, the court should not interfere.

  The other matter that projects from the Chief Justice's judgement is the certainty behind the rule. It has been clear of purpose for some time. It was settled in two prior High Court decisions. It is clear what the law says and when the facts of the relevant case of Brodie are applied to it, they fit. The issue is decided.

  The approach is one of positivism. The law is posited and there is an end to it. The attitude of the judgement is seen in the statement

  The following passage from The Concept of Law is indicative of the approach taken.

Ronald Dworkin in an unpublished article on his website[75] (Hart's Postscript: Revised Draft 11/23/2001) points out that Hart's positivism was Archimedean. Like Archimedes, Hart stood outside the world of law and observed the law. Hart's theory of positivism was, in his own words, 'descriptive in that it is morally neutral and has no justificatory aims.'[76] Dworkin challenges this position. For him a theory of law cannot be neutral. A theory of law must be active. It must participate in the law. It must be evaluative. It must be moral. It cannot just be descriptive. It must be interpretative and it must justify law.

  The judgement of the Chief Justice gives us an account of positivism at work in the judicial process. His judgement is neutral about the effect of the immunity. There is no attempt to make an evaluation of its effect. Any consideration regarding the immunity's inequality or unfairness is ignored precisely because it is a matter of evaluation. The law so far as the judgement is concerned does not deal with such matters. The law is posited and that is the position.

Judgement of Hayne J

  Hayne J begins his judgement by traversing a history that indicated the law always gave special treatment to highway authorities and 'those responsible for repair of highways were treated separately.'[77] The rule about non feasance was not so much about immunity but about the fact that 'a statutory authority owed no duty to an individual to exercise its powers to avoid injury to the individual.'[78] This was something to which Dixon J had referred to in Buckle v Bayswater Road Board[79]. Dixon J had based his decision not on the basis of the immunity of a highway authority, but on the basis that a road authority owed no duty "to undertake active measures whether of maintenance repair construction or lightning. Neither in Buckle or the later case of Gorringe v The Transport Commission (Tas)[80] had their been any challenge to the proposition that 'absent a specific statutory provision to the contrary a highway authority is not liable for damage resulting from non-feasance.'[81]

For Hayne J the affirmation of the non-liability of a highway authority was something well based in the English law and not lightly introduced into Australia. He places the rule in its historical context. He is affirming it is a rule certain, "set in concrete" so far as the law is concerned. This is the certitude of positivism. He is also answering the majority in their casting doubts about the foundation of the rule.

  Hayne J[82] directly challenges the methodology of the majority approach. He argues the approach lacks certitude. For litigants it means that they approach the court not on the basis of certain law, but in the hope their case might be favoured as sufficiently analogous to some previous case. Of course an answer to this might be that no litigant approaches the court with certitude, but only with hope. If litigation was an issue of certitude then the work of the courts would be lessened considerably.

  Perhaps the most telling challenge of Hayne J to the majority, is the difficulties that potentially arise with the rule being abolished. Dealing with the issue of liability at the 'breach of duty' level rather than whether there was a duty, would in his view result in courts examining the discretionary decisions of public law decision makers. There are administrative law difficulties in this. The discretionary decisions of a public law decision maker may only be reviewed for Wednesbury[83] unreasonableness. Inevitably the courts will be called 'to resolve the competition between the various factors which a statutory authority could properly take into account, for example, in ordering its priorities or allocating its budget.'[84]

Here his Honour is taking the interpretative methodology of the majority and turning it back upon them. There will be lack of "fit", he seems to say, with the abolition of immunity. The discretionary decisions of statutory authorities are firmly established by legal principle as outside judicial province. Abolition of the immunity will result in encroachment into this province. The encroachment is inconsistent with administrative law principles. In the theory of interpretivism "fit" (as noted earlier in this essay) is important. Interpretivism calls for all aspects of its approach to "dovetail". Principles of law much "fit" with each other. Hayne J maintains that abolition of the immunity will result in tort principles conflicting with administrative law principles.

  Hayne J acknowledged in his judgement that there were difficulties occasioned by the existence of the immunity, but for all the reasons mentioned he was of the view the legislature was the appropriate place for that change to take place.

  The judgement of Hayne J supplements that of the Chief Justice. Its emphasis is on the certainty in retaining the immunity and criticising the methodology of the majority. The judgement sees the immunity in terms of being a necessary adjunct to statutory law so far as highway authorities were concerned. The basis for the immunity was principled so far as he was concerned. Its existence in the law had a long history. Its introduction in Australia was not lightly taken. It was certain in the law and its abolition would result in the courts interfering in matters relating to the legislature and executive. The interpretative approach taken by the majority was flawed and led to uncertainty. Futhermore, in terms of the methodology of the majority there was one major lack of "fit" in their reasoning relating to established principles of administrative law. If the immunity was to be altered it was a legislative matter. The approach, as indicated previously, with its emphasis on certitude, separation of powers, precedent law and questioning of the interpretative approach was clearly positivist. Like the judgement of the Chief Justice it was non-evaluative, Archimedian and unconcerned with the negative impact of the immunity on the community at large.

Judgement of Callinan J

The judgement of Callinan J did not add anything that had not been already dealt with. He too adopted a positivist approach indicating the law was clear[85] was firmly and properly established[86] and although there may have been criticisms of the immunity the proper place to remedy these was the legislature.[87]

Conclusion

In many respects the judgements in this case of the majority on the one hand and the minority on the other might call for a sub title to be added to the case appellation of Dworkin v Hart. It is significant that the change to the law advocated by the majority has resulted from an interpretive approach, whilst the status quo position of the minority has resulted from a positivist approach. The judgements of the minority are relatively straight forward. Their view is the law is clearly posited, the case is answered. So far as they are concerned, change is a legislative matter. The rule is properly established as part of an adjunct to a statutory scheme. Its abolition will result in a lack of certitude and the courts adopting an inappropriate role: reviewing policy decisions that are politically inspired. So far as the minority is concerned it is a broad separation of powers issue and because of this any unsatisfactory aspects of the rule are a matter for legislative amendment, not judicial amendment. The attraction of the minority approach is its certitude. Its failure, is to address the issues of unfairness and inequality that arise from the maintenance of the immunity. This is a direct result of positivism and shows the theory in its true light. Because it is a descriptive and non-evaluative theory it leaves the integrity of the law in a tattered state and undermines equality in the community.

The judgement of the majority provides a good example of the "chain novel". It searches for consistency. It attempts to blend the new path with the old. It stresses integrity. It has its "eye" on equality at all times, not just in some legal sense, but also from the point of view of economics. It takes a "big picture" viewpoint trying to make the best of all the forces that impinge on the arguments maintaining the immunity and the results where it has been disregarded. It looks to the effect in the community when the rule operates and its effect if it is abolished. It is involved, evaluative and seeking a fairer and more equitable result that has integrity. However, for all this, it is submitted that the objection raised by Hayne J that the approach of the majority fails to adequately deal with the "fit" of the abolition of the immunity with administrative law principles, has some merit. This of course does not mean that the methodology of the majority is flawed. It is rather an issue that they may have failed to employ the methodology to its best advantage or ultimately may have failed to draw the best conclusion. Either way, it does not reflect on a methodology, which it is submitted, is to be preferred simply because it goes beyond legal theory that is merely descriptive to one that is evaluative, engaged and seeks to give the law a moral perspective.

Gerard Kelly
University of New England

Bibliography