As mentioned late last week, the High Court of Australia refused an application for special leave to appeal the decision of Nouri v Australian Capital Territory [2020] ACTCA 1 (available on Austlii).
The transcript of the oral argument in the leave application is now available: Nouri & Anor v Australian Capital Territory [2020] HCATrans 167 (on Austlii).
The transcript is interesting for highlighting two related points raised by the applicants.
The first point concerned the interpretation of section 46 of the Civil Law (Wrongs) Act 2002 (ACT), which is the burden of proof provision: “In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.”
The second point concerned what appears to be an argument that claims for the costs of raising a child are claims for pure economic loss not for personal injury and so the Tabet v Gett loss of chance decision ought not apply (in the sense that the applicants should not have been required to prove that a termination would have occurred on the balance of probabilties).
The respondent to the special leave application argued that the claim had not been run in that way before the trial judge or on appeal.
The High Court appears to have agreed with the respondent. Bell J stated that in light of the conduct of the proceedings below, the application was not a suitable vehicle to consider the questions of principle that the applicant had raised on the hearing of the application. The application was therefore dismissed with costs.
(With apologies for any errors or misunderstanding in this very brief note of a complex issue; readers should check the transcript.)