Butfield v John Lysaght (Australia) Ltd

[1995] HCATrans 127

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S197 of 1993

B e t w e e n -

KEITH BUTFIELD

Applicant

and

JOHN LYSAGHT (AUSTRALIA) LIMITED

Respondent

Application for special leave to appeal

DEANE J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 MAY 1995, AT 11.45 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR B.S. ROBISON, for the applicant.  (instructed by Maurice May & Co)

MR C. GEE, QC:   If the Court pleases, I appear with my learned friend, MR D.R. RUSSELL, for the respondent.  (instructed by A.O. Ellison & Co)

DEANE J:   Mr Jackson.

MR JACKSON:   Your Honours, this case involved a direct application by the Court of Appeal of its own decision in Dedousis before that decision was overruled by the Court.  The primary judge ‑ ‑ ‑

DEANE J:   What do you ask for, Mr Jackson?

MR JACKSON:   Your Honour, we ask for special leave with a view to the matter then being dealt with ultimately by the Court of Appeal again.

DEANE J:   Mr Gee, what do you say about that?

MR GEE:   Very little, in short, your Honour.  It is plain that their Honours relied on the Dedousis basis before this Court decided it.  It is really impossible rationally to submit that that could have had no affect.  I feel obliged to point out also that at page 70 of the application book ‑ ‑ ‑

DEANE J:   You have a bigger book than I have.  I stop at page 34.  Why do you not just tell us.

MR GEE:   All right.  Somewhere in the evidence there was an affidavit by the plaintiff, now applicant, in paragraph 12 of which he asserted that he did not realise until he went to his solicitor’s offices in October 1992 that some other technical steps could have been taken to avoid exposure to excessive noise.  That does seem to fit squarely within the last concept of Dedousis and I feel obliged to point that out.  Similarly, I feel it necessary to put that in the judgment at first instance, after deciding on a very close call that it was just and reasonable to extend the time, his Honour at first instance said:

There is no doubt that as of 1989 the s 60I elements had been established by the plaintiff.

So, there is a finding of fact on section 60I which could fit Dedousis as it now tells us the law is to be applied.  All that having been accepted, may I respectfully suggest that the correct course would be to - before I suggest the course, could I just put the supporting submission and then suggest the course.

As with all of these cases they were heard at first instance in what we might call a different juristic context:  the people, practitioners, and trial judges, of course, were uninstructed by Dedousis and, indeed, at the time of the trial judge’s decision, he did not even have the Court of Appeal’s views in Dedousis.  Now, Dedousis, whatever else it might have done, had immense implications for the way in which people went about the applications for extension of time in the transitional period of which there are many such cases, according to the evidence, and of which this was one.

Now, it is true that Dedousis has said that it is a spent provision and that is true in the sense that the time in which one can make an application under the transitional provision has passed.  It is also true that there are many, many such cases which either have been heard under what we might call the pre-Dedousis regime or are to be heard.  Now, it is the former to which I am respectfully directing attention.

In my respectful submission, the proper course is to, if the Court is minded to grant leave, not to remit it to the Court of Appeal for further consideration but to remit it to his Honour the trial judge for further consideration in what we might call the new context so that both parties have a fair opportunity to bring forward whatever they want to do in relation to, among other things, the 60I elements.  Now that, in our respectful submission, would be productive of justice rather than injustice.  Otherwise, in a wholly new juristic context, if I could put it that way, we will finish up with no possibility of looking at the matter at trial level in, what we might call, the elucidated legal framework.

TOOHEY J:   When you say “trial judge”, Mr Gee, do you mean literally the judge who dealt with this matter?

MR GEE:   I mean literally the judge who dealt with the application for extension, his Honour Judge Madgwick.

TOOHEY J:   Yes.  Sometimes those orders give rise to problems.

MR GEE:   That could be so, your Honour, but here one finds it difficult, with great respect, to foresee any great problem.  If it went back to him and the parties have a proper opportunity to put whatever they want to put in what I have tried to call the “new context”, there will be another finding of fact which, at worst in terms of court time, could conceivably be agitated

one more level up.  It could never get back up here, obviously.  That is the submission, your Honours.

DEANE J:   Mr Jackson.

MR JACKSON:   Your Honour, in relation to that, one has to bear in mind, of course, that at the time when the primary judge gave his decision he was uninstructed, if I could use that expression, by what the Court of Appeal said in Dedousis.  What your Honours will see at page 4 is that, in a finding which was very brief, between lines 14 and 15, he said:

There is no doubt that as of 1989 the s 60I elements had been established by the plaintiff.

Now, your Honours, the appeal to the Court of Appeal was whether that involved the question whether that finding should be set aside.  It does not appear, prima facie, to be tainted by any incorrect view of the law.  What then happened, of course, in the Court of Appeal was that in that court an incorrect view of the law was applied. 

Now, your Honours, the true situation, we would submit, is that the matter should go back to the Court of Appeal to be dealt with according to law.  It is just like the ordinary case, your Honours, where, if further evidence is sought to be adduced, then the appropriate place to do it would be in the Court of Appeal.  The case does not seem to be one where there was any prima facie identifiable error in the approach taken by the primary judge.

DEANE J:   One risk in that from your client’s point of view would be that this Court would not indicate whether a submission in the Court of Appeal that the matter should be remitted to the trial judge should or should not succeed.  In other words, I would think the furtherest you would get this Court to go would be, “We have not everything before us and we are not prepared to finally resolve whether the next stage should be in the Court of Appeal or the trial judge.”

MR JACKSON:   No, your Honour.  Your Honour, we have not asked, as your Honour will see, for more than the fact that the matter go back to the Court of Appeal there to be dealt with in whatever is the appropriate way by that court.  The point I am cavilling at, with respect, is of it going back further.

DEANE J:   Yes, I understand that.

MR GEE:   Your Honours, may I have leave to add a point which I candidly overlooked before and, of course, my friend will have to have an opportunity?

DEANE J:   Of course, Mr Gee.

MR GEE:   I should have put that at the time his Honour Judge Madgwick made the finding of fact to which I took the Court earlier on section 60I and to which my friend has just again taken your Honours, at that time Wootton was the controlling authority for a District Court judge in respect of these transitional applications, and Wootton said you did not need to worry about section 60I.  So, there would be a very good reason for thinking, at least by inference, that his Honour would have given - and the parties probably - only the most cursory consideration to section 60I because Wootton was then teaching that it was not relevant to a transitional application.

Now that Wootton has been said in Dedousis not to be correct, it is another substantial element, in our respectful submission, in what I tried to call the judicial context or juridical context.

DEANE J:   Thank you, Mr Gee.

The Court will announce its decision in this application at 2pm.  Having said that, I am correct, am I not, that assuming that the Court proposes to grant leave, both parties invite the Court to deal with the appeal forthwith rather than simply granting leave and letting the inevitable happen in two or three months time?

MR GEE:   Yes, it is the outcome of that process that we are in difference about, yes.

MR JACKSON:   I take it your Honour is meaning dealing with the appeal if we were otherwise successful in terms of sending the case back to the Court of Appeal?

DEANE J:   Yes.

MR JACKSON:   Thank you, your Honour.

AT 11.56 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.05 PM:

DEANE J:   The judgment of this Court in Dedousis v The Water Board establishes that the New South Wales Court of Appeal was mistaken in this case in treating section 60F of the Limitation Act 1969 (NSW) rather than section 60I as the relevant provision. In these circumstances, it appears to the Court that the appropriate course is to grant special leave to appeal, deal with and allow the appeal forthwith, set aside the judgment and orders of the Court of Appeal and remit the matter to that Court for reconsideration in the light of the judgment of this Court in Dedousis v The Water Board.  Implicit in those orders will be an order dispensing with any requirements of the rules which is necessary to enable effect to be given to them. 

The Court notes that it was submitted by Mr Gee, QC, who appears for the respondent, that the appropriate course would be to remit the matter for rehearing by the learned trial judge.  In circumstances where that course is opposed by Mr Jackson, QC, who appears for the applicant, the Court has come to the conclusion that the appropriate course is to make the orders which we have indicated.  It will, of course, be open to the respondent to seek to persuade the Court of Appeal that the matter should be so remitted.  Accordingly, the Court makes the orders which we have already indicated.

Mr Gee, we have not dealt with costs.

MR GEE   Your Honour, we would put this, with respect, that this was one, of course, of a group of cases which was put aside while Dedousis was the chosen vehicle for having a look at the limitation matters.  Now, the fact that the result has obliged remission as now ordered is, in a real sense, your Honours, not to be laid, in costs terms, at the feet of the unsuccessful respondent, we would submit, for much the reasons that I put in another matter and I would ask your Honours to accept those submissions mutatis mutandis.

DEANE J:   Mr Robison?

MR ROBISON:   Your Honours, I ask that we have the costs on this basis, that when this case was initially before the trial judge the evidence was put before the court in the affidavit of the plaintiff setting out information that satisfied the 60I test.  So, as far as our position was concerned, we conducted our case correctly, put the information correctly before the intitial judge.  Subsequent mistakes made by the Court of Appeal should not be visited upon us in any way.  We have gone to a court, a District Court, argued our case upon a certain set of facts which has now been confirmed by this Court in Dedousis.

It would seem, in that situation, the appellant basically has done nothing wrong and should have his costs.

DEANE J:   There will be an order in the applicant’s favour for costs of the application for leave.  Really, there will not be any costs of the appeal.

MR ROBISON:   No, obviously.  Yes, it only relates to the leave application.

DEANE J:   Well, there will be an order that the respondent pays the applicant’s costs of the application for leave to appeal.

AT 2.09 PM THE MATTER WAS CONCLUDED