C v CSIRO & Anor

[2001] HCATrans 248

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S125 of 2000

B e t w e e n -

JONATHAN PARK

Applicant

and

MINISTER FOR FAIR TRADING

First Respondent

CONSUMER CLAIMS TRIBUNAL

Second Respondent

K. MORAWETZ

Third Respondent

INA VAN DER MERWE

Fourth Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 JUNE 2001 AT 2.01 PM

Copyright in the High Court of Australia

__________________

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MS M.A. GILMOUR, for the first respondent.  (instructed by Crown Solicitor for New South Wales)

GLEESON CJ:   There is a certificate from the Deputy Registrar saying that she has been informed by the solicitors for the second, third and fourth respondents that they do not wish to be represented at the hearing of this matter and will submit to any order of the Court save as to costs.  Officer, will you call Mr Park, please.

COURT OFFICER:   No response, your Honour.

GLEESON CJ:   Mr Solicitor, maybe the best thing to do is just stand this matter down to the second matter in the list and we will go ahead with matter No 2.  If Mr Park is not here by the time we have finished matter No 2, then we will go on with his case.

MR SEXTON:   If your Honour pleases.

AT 2.04 PM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.20 PM:

MR J. PARK appeared in person.

GLEESON CJ:   Yes, Mr Park.

MR PARK:   Good afternoon, your Honour.  I would like to apply to you that in order for me to develop a succinct argument, could I – would you be able to deal with matter as the last matter today?

GLEESON CJ:   No, go ahead with the matter now.

MR PARK:   I shall refer the Consumer Claims Tribunal as the Tribunal in my submission.  In normal courts each litigant is required to file and serve the file evidence upon the other party, yet at the Tribunal the usual practice was that – or the usual rule was that a party files evidence, then the filed evidence remains at the Tribunal, then the Tribunal has the control, the full control of the filed evidences of all parties.  This case is about the fact that the Tribunal’s control of the evidence was a breach of rules of natural justice or procedural unfairness.

The issue.  The Tribunal provided the evidence of Mr Park to his opponents, however, the Tribunal refused or, in any event, did not give Mr Park copies of his opponent’s evidence.  The Tribunal gave hard copies of Mr Park’s important medical evidences to Mr Park’s opponents about two months prior to the final hearing.  This gave an opportunity to Mr Park’s opponents to engage a dental expert, namely, prosthodontist, Dr Harty, and a lawyer to scrutinise and to criticise Mr Park’s medical evidences and all other important evidences.

Your Honour, are you looking for my supplementary summary of argument?  It is on page 70 of AB book, page 70 of the application book.

GUMMOW J:   Yes, we have that.  That is the supplementary one.

MR PARK:   Yes, your Honour, but because I am making – I made some adjustments in my supplementary summary of argument.  If your Honour wishes, I would like to continuously read my adjusted version, final version, of the summary of argument.

Therefore, Mr Park’s opponents were able to attack and criticise and tackle Mr Park’s medical evidences in the final hearing very effectively.  The Tribunal refused to grant Mr Park the same opportunity to battle or to test or to analyse his opponents’ medical evidence.  This became a pivot in the outcome of the Tribunal or, at least, an important factor for the Tribunal to reach their decision and this is the issue that today High Court should decide whether it was a breach of procedural unfairness or rules of the natural justice.

The fact that the Tribunal gave copies of medical evidence to only one party, however, the Tribunal did not provide the medical evidences to the other party.  So the Tribunal treated two parties with two different rules or the Tribunal discriminated one party, in this case my party, against the other party.

Now, the brief background of the case.  Mr Park sued employer and employee dentists for dental negligence regarding the damages the employee dentist caused to his incisors.  Mr Park and two dentists had three dates for their hearing.  Because Mr Park'’ case was a medical negligence case, the medical evidence were to play the key role in the outcome of the case.  The main procedural unfairness occurred between the second and the third hearing.

It is in the common ground between my opponents today and myself that the Tribunal granted opponents of Mr Park copies of all the evidences, especially the expert medical reports, the medical record and all other my evidences presented up to the second hearing.  However, it is also common ground that the Tribunal did not give, or refused to give, Mr Park any copies of evidence – any copies of evidences presented by the dentists or the other side when Mr Park requested the copies after the second hearing by a telephone call.

This was in dispute – this was disputed between Mr Park’s opponents and Mr Park in the Supreme Court of New South Wales.  Mr Park’s opponents alleged that Mr Park did not make that request to have the copies of his opponents – opponents.  Mr Park’s opponents – Mrs Gilmour made a submission which was to strike out the fifth and sixth paragraph of Mr Park’s affidavit sworn on 14 April 2000 on the irrelevant ground.  Unfortunately, the common law division struck out those relevant grounds and those paragraphs contained concrete evidence that the – how Mr Park actually requested to have the copies of his opponents’ evidence.  However, because the High Court rule 35A is concerned with the error in the legal issues only without the concerning about their evidence ‑ ‑ ‑

GLEESON CJ:   Mr Park, could I just interrupt you to draw your attention to page 34 of the application book?

MR PARK:   Yes.

GLEESON CJ:   Paragraph 24.

MR PARK:   Of the judgment?

GLEESON CJ:   Yes.

MR PARK:   Yes.

GLEESON CJ:   That is a reference to a finding of fact by Justice Dowd.

MR PARK:   That is right.

GLEESON CJ:   Now, what do you say about that?

MR PARK:   Well, I submit to the High Court that Justice Dowd made an error when he was assessing the evidence which was contained in my affidavit, but because – for me to explain that evidence it will take about 10 to 15, 20 minutes.  I do not ‑ ‑ ‑

GLEESON CJ:   No, you have a limited time, as you well know.

MR PARK:   I know.

GLEESON CJ:   Use it as you please.

MR PARK:   So but because – now, it is today is irrelevant.  It is not important whether I made that telephone call to the Tribunal to have my opponents’ evidence or not because there is an abundance of authority from the High Court that when there is a procedural unfairness happened, that regardless of what happened at the hearing, the decision was quashed in many occasions.  I shall go to those paragraphs.

So the common ground is that today Mr Park’s side had no copies of his opponents’ evidence but that Mr Park’s opponents had all the copies of Mr Park’s evidence presented up to the second hearing and the way my opponents or Mrs Gilmour has made a submission in the Supreme Court was that the key issue in today’s determination will be one of the medical reports which was annexed to my authorities which I filed yesterday.  I wonder whether your Honours had the opportunity to have looked at it?

GLEESON CJ:   Thank you.

MR PARK:   Prosthodontist Harty’s report.  Mrs Gilmour submitted to New South Wales court that it raised no new issues.  However, I have evidence to prove from the medical report that there are crucial paragraphs which Dr Harty attacked or reputed my dentists’ reports, and I have brought along those dental reports as well.  If your Honour wishes your Honours can have a look at it.

Now, without your Honours looking at those medical reports, the evidence is clear.  My opponents had the opportunity to criticise my medical reports but my dentist had no opportunity to attack their medical reports because no hard copy was given to me.

GUMMOW J:   Now, Mr Park, do you accept that to get to the New South Wales Court of Appeal you had no appeal as of right and you needed leave to get there?

MR PARK:   Yes, I agree with that, yes.

GUMMOW J:   Well, we do not ordinarily grant special leave to appeal against refusals of leave.

MR PARK:   Yes.  So it was – it may be a factual issue today that High Court may need to look at Dr Warwick Harty’s paragraph which I underlined as number – fifth and between line 5 and line 25 to how he actually attacked my dental reports, but I shall put that aside for the time being.  Now, let us assume even Mr Park’s opponents did not have the opportunity to engage the prosthodontist Harty’s report, the Tribunal, the referee, had no evidence to prove that Mr Park’s dentists’ dental reports were wrong.  Therefore, without the prosthodontist Harty’s report, the opponents of Mr Park could not have won based on evidence.

Mr Park deserves special leave on the same ground as Wong v The Queen on 4 August 2000.  The very learned Justice your Honour Chief Justice Gleeson and the very learned Justice Gaudron granted a special leave on the ground that there should be consistency in laws.  To refresh your Honours’ memory, that there was inconsistency in sentencing over Mr Wong.  The standard guideline was not properly observed.  The appeal was allowed to reduce the gaol sentence from 14 years to 12 years, and I shall quote the following authorities to show how the previous Honours of the High Court expressed their views that laws must be consistent regarding the procedural fairness.  In the High Court case of Balenzuela v De Gail (1959) – does your Honour understand the case?

GUMMOW J:   Balenzuela v De Gail, yes.

MR PARK:   Yes, your Honour.  The five honourable Justices of the High Court upheld this founding principle.  Honourable Justice Dixon stated that:

In the present case, as it seems to me, it would be contrary to principle to refuse a new trial on the ground that there was no substantial wrong or miscarriage.  The basal fact is that material evidence was erroneously excluded from the consideration of the jury ‑ ‑ ‑

GUMMOW J:   Now, that is a case involving a jury trial.

MR PARK:   No, his Honour Justice Dixon quoted a factual hearing as well.  I will just finish the quotation.

GUMMOW J:   All right.

MR PARK:   His Honour continued, “It lies outside the province” – I will just quote the entire text to your Honour, just bear with me for 30 seconds:

The basal fact is that material evidence was erroneously excluded from the consideration of the jury, evidence that touched the question upon which the case turned.  It was something the party was entitled to lay before the jury for its consideration.  It lies outside the province of the Court to inquire into the effect which the evidence if admitted would produce upon the Court if the Court were the tribunal of fact –

so Justice Dixon made a point that – this point that this applies to jury trial as well as to trial of the facts:

It is enough that evidence definitely material to the determination of the case was excluded at the instance of the defendants.  That leaves the unsuccessful plaintiff entitled to a new trial.

Now I am going to the common law, the New South Wales Supreme Court common law division judgment paragraph 14.  His Honour Justice Dowd stated:

Even if he –

Mr Park –

had the relevant, significant evidence of Warwick Harty had not yet been filed before the tribunal.  Even if the June and July material had been furnished –

to Mr Park –

at that stage, this would not have altered the result.

In his judgment paragraph his Honour continued:

I do not see any basis in the light of the evidence, at that stage, before the tribunal and in the articulated reasons furnished by the tribunal, that even evidence that completely answered Warwick Harty’s evidence could have altered the evidentiary balance in favour of the plaintiff.

Now, Consumer Claims Tribunal was a tribunal of facts and the Supreme Court’s Justice Dowd acknowledge that the prosthodontist Harty’s report was “relevant” and “significant”.  Now, at the moment the High Court is – according to the High Court rule 35A for granting special leave, the High Court is now required:

to resolve differences of opinion between different courts –

in this case the difference of opinion of the High Court, Chief Justice Dixon, and the New South Wales Supreme Court.  The rule of the High Court was that Chief Justice Dixon:

It lies outside the province of the Court to inquire into the effect which the evidence if admitted would produce upon the Court if the Court were the tribunal of fact –

In this case, unfortunately, Supreme Court of New South Wales common law division has already inquired into the effect which the evidence, if admitted, would have produced upon the court.  So, in other words, my point is that Justice Dowd, he inquired, he predicted – or he predicted a future event that even if I was granted my opponents’ medical report, it would not have altered the result.  However, Chief Justice Dixon discouraged or prohibited or disallowed that sort of presumption or speculation of the future event.  So that is the – I request High Court to resolve the difference of opinion between Chief Justice Dixon and Justice Dowd.

GUMMOW J:   That is not what that section is talking about.  That section is talking about differences of opinion between courts beneath the High Court.

MR PARK:   Now, I would like to go to the High Court authority, Stead v - well, in that case then I request your Honours to consider the High Court rule 35A in the context that this case should lie founding principle regarding what is procedurally fair and what is denial of natural justice because the court below, they have breached the High Court guidelines which…..many, many years, over 20, 30 years, and it will be – it will have important application because of, quote, “general application of the case”.

Stead v State Government Insurance Commission (1986).  The High Court expressed a similar fundamental principle of law that a court should not speculate about a past – possible past event which never occurred.  If – such that if certain evidence was admitted it would or would not have produced a certain effect.  Before I refer to Stead, the reason I am calling this is this.  The common law division of New South Wales and the Court of Appeal, their main point in their judgment was this.  Even if Mr Park had his opponents’ medical evidence, we do not think that the result of the Tribunal would have had been altered.

Now I am quoting all the authorities to prove to your Honour that it was a serious error or breach of the guidelines of the New South Wales Supreme Court to jump into those speculation and I have medical evidence here that if I had granted my opponents’ medical reports, my dentists – my dental experts would have attacked or criticised their reports very effectively and I have five copies of medical reports.  However, because of the time constraint, I shall refer them later.  Now, in the – Mr Stead was a victim – does your Honour understand the case – sorry, understand the case name, understand my pronunciation, Stead v ‑ ‑ ‑

GUMMOW J:   Yes, yes.

MR PARK:   Mr Stead was a victim of a motor accident.  At the South Australian Supreme Court Mr Stead’s counsel wanted to add on evidence which had information about Dr Scanlon:

who had given cogent evidence against the existence of a causal connexion between the accident and the appellant’s neurotic condition.

Mr Stead’s counsel wanted to submit to his Honour that Dr Scanlon’s evidence be rejected.  His Honour said that he would not accept Dr Scanlon’s evidence.  However, his Honour changed his mind later on and his Honour accepted Dr Scanlon’s evidence.  Mr Stead appealed to the Full Court of the South Australian Supreme Court.  The Full Court dismissed the appeal.  The High Court made its founding principle perfectly clear once again in the judgment paragraph 10 and 11 - judgment paragraph 10 of the High Court.

If all that happened at the trial was that a party was denied the opportunity of making submission on a question of law when in the opinion of the appellate court the question of law must clearly be answered unfavourably to the aggrieved party it would be futile to order a new trial.  Where, however, the denial of natural justice affects the entitlement of a party to make submission on an issue of facts, especially when the issue is whether the evidence of a particular witness should be accepted, it is more

difficult for a Court of Appeal to conclude that compliance with the requirements of natural justice could have made no difference.  However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial sought to remedy a denial of natural justice relevantly to a finding of facts could make no difference to the result already reached, it should proceed with caution.

GLEESON CJ:   Thank you, Mr Park.  Thank you, your time is up.

MR PARK:   Can I just quickly quote ‑ ‑ ‑

GLEESON CJ:   No.  Yes, Mr Solicitor.

MR SEXTON:   If the Court pleases.  Your Honours, we make two short submissions in this matter.  The first is that, as Justice Gummow has pointed out, the decision below is a refusal by the Court of Appeal to grant leave to appeal.  In those circumstances, Mr Park would need to demonstrate, in our submission, some error in that decision of the Court of Appeal in one of the categories, for example, set out in House v The King.  In our submission, that has not been done in his submissions ‑ ‑ ‑

GLEESON CJ:   Mr Park seems to have directed a substantial part of his submissions to the question of what might follow if it were found that a denial of natural justice occurred and whether the denial made any difference, but there is, as I understand, an anterior issue and that is whether there was a denial of natural justice, which is why I directed his attention to what appears on page 34.

MR SEXTON:   Yes.  Well, your Honour, I can move straightaway to that question.  Our first submission is that an error would need to be demonstrated in relation to the decision of the Court of Appeal and we say that has not been done.  On the substantive question of natural justice itself, as your Honour has pointed out, Justice Dowd made a finding on one aspect of that in relation to Mr Park and whether or not he believed Mr Park.  Mr Park has another argument which relates to the tendering of a medical report at the third and final day of the hearing, the report of Dr Harty, and what happened on that occasion was that he was provided with the report and he had an opportunity to read it and, if he wished to, to ask Dr Harty questions.

That was the final day of the hearing and the referee then reserved the decision, but, in our submission, in the context of the Consumer Claims Tribunal, there was certainly no denial of natural justice.  It does not dispose of cases in the way that the Supreme Court or the District Court does.  They are done with much less formality and hopefully with much greater speed.

GUMMOW J:   Now, the hearing time was some five hours in all, was it not?

MR SEXTON:   Over three days, your Honour.

GUMMOW J:   Yes.

MR SEXTON:   That is so.  So that in that context – and the medical report that Mr Park referred to, Dr Harty’s report, was a response to medical reports that he relied upon and had been tendered on the second day of the hearing, so to that extent it did not raise new issues, but he did have an opportunity to deal with it.  The structure of the Consumer Claims Tribunal, as it then was, replaced in early 1999 by the Fair Trading Tribunal, is to dispose of matters as speedily as possible and, therefore, of course, the procedures of the court are not observed in that way and the referee in this particular case nevertheless over the period of three days, we would say, devoted considerable time to the hearing of this matter.

Justice Dowd came to the conclusion on all of those matters that there had been no denial of natural justice and that was endorsed by the Court of Appeal who refused leave.  It is not necessary, in our submission, to go to the question of the effect of the referee’s conduct of the proceedings on the outcome so far as Mr Park was concerned.  In other words, it is sufficient, in our submission, to rely upon the finding of Justice Dowd and the Court of Appeal that there was no denial of natural justice in this case.

GUMMOW J:   Now, does the new Act have a provision equivalent to section 17 of the 1987 Act requiring conformity to the rules of natural justice?

MR SEXTON:   I cannot answer that question at the moment.  I do not have a copy of the new Act here.  It came into effect in March, I think, 1999.

GLEESON CJ:   Yes, thank you, Mr Solicitor.  Yes, Mr Park.

MR PARK:   I think that the first point that counsel raised is not accurate, that is, I actually – I am going to page 53 of my AB.

GLEESON CJ:   Yes.

MR PARK:   The Court of Appeal judgment first order was that:

The Appeal filed 10 June 1999 be dismissed as incompetent.

Which meant my appeal filed on 10 June 1999, I appealed entire decision of Justice Dowd, the common law division.  It was not – I was not just seeking leave to appeal, just making ‑ ‑ ‑

GUMMOW J:   That is right, but what they ended up doing was – the order that matters here is order 3, summons for leave to appeal, which is what you needed, is dismissed.

MR PARK: However, how does that affect my entitlement in having my trial – those decisions to be quashed in the High Court? I believe the Constitution allows the High Court to quash any decision made in lower courts.

GLEESON CJ:   Yes.

MR PARK:   So I made a – I filed a summons according to High Court Rule that to quash all the decision made in the lower court.  So now the second ‑ ‑ ‑

GUMMOW J:   Decisions made in lower courts which are made in exercise of a power or discretion to grant leave to appeal to that court are more difficult to get special leave to appeal from this Court.  That is all that is being said against you.

MR PARK:   Okay, thank you, your Honour.  Now, that is – the second point that the error of facts, whether I actually made a telephone call to the Consumer Claims Tribunal to request the other copies – the other side’s evidence or not, that is irrelevant because there are other authorities such as Stollery, High Court case Stollery v Greyhound Racing Control Board.  That there the point was that Mr Stollery was a man who bribed – tried to bribe the – yes, your Honour know the case.

The point of the authority was that the High Court said – the Full Bench of the High Court said that – I think it was five Judges or less – they said that when there was undue pressure for the committee of the Greyhound Racing Control Board because the man who accepted the bribery was sitting next to the committee when they were delivering their judgment against a man who offered the bribery and the High Court said that the man who was sitting next to the committee – could I ask Chief Justice Gleeson – Chief Justice ‑ ‑ ‑

GLEESON CJ:   Yes.

MR PARK:   ‑ ‑ ‑ what page are you looking for?

GLEESON CJ:   Go ahead.  Go ahead.

MR PARK:   Yes.  That because the man was sitting next to – the man who received the bribery was sitting next to the committee who were making judgment against Stollery that it would have caused undue pressure to the committee to convict Mr Stollery of offering bribe and because it was procedurally unfair to conduct a trial in that situation, therefore, High Court said there was a denial of natural justice and procedural unfairness in the Greyhound Racing Control Board’s decision and quashed their decision.

Now, at the time Mr Stollery was actually offered an adjournment by the Greyhound Racing Game Board because, you know, “Why do you not go and get legal advice?”.  Mr Stollery refused that opportunity and he said, “That I will proceed today”.  But now even though – my point of this authority is that when there is a trial – denial of natural justice or procedural unfairness, the High Court said – the five Judges of the High Court said it does not matter whether the party was offered adjournment – opportunity of an adjournment or not.  The decision have to be quashed because there was a procedural unfairness and I am saying to your Honour that in my case it does not matter whether I made a telephone call to the Tribunal to have copies of the other side’s evidence or not.  The result I had no copies of the other side’s evidence and my opponents had full copies of my evidence.  That is procedurally unfair and the Judges who presided at Stollery would have made the same principle again.

I am just going to quickly quote – so just to finish the Mr Stead – Stead v State Government Insurance Commission, that the High Court, again, Full Bench of the High Court quashed the South Australian Supreme Court, the Full Court Appeal Court, because the principle was – High Court’s principle was that you should not have predicted, you know, past events that if Mr Stead’s medical evidence have – even if his medical evidence accepted to the South Australian court, it would not have altered the result.  Do not speculate past events like that.  That was procedurally unfair.  The medical evidence which shows relevance to Mr Stead was refused and it is not your province – or not of your right or role to play past events, what happened – what had happened in the past events the High Court quashed.

GLEESON CJ:   Thank you.

MR PARK:   Can I just quote two more ‑ ‑ ‑

GLEESON CJ:   No, thank you.  We will adjourn for a short time to consider the course we will take in this matter.

AT 2.51 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.54 PM:

GLEESON CJ:   The applicant, having been unsuccessful in proceedings before the Consumer Claims Tribunal, applied to the Supreme Court of New South Wales to set aside the decision of the Tribunal on the ground that he had been denied natural justice.  The matter came before Justice Dowd, who concluded that there had been no denial of natural justice in the Tribunal.  That conclusion was based on a number of detailed findings of fact, including the rejection of part of the evidence of the applicant on a particular issue.

The applicant appealed to the Court of Appeal, claiming to appeal as of right but, in the alternative, seeking leave to appeal.  The principal judgment in the Court of Appeal was delivered by Justice Powell, who made an extensive review of the facts and the decision of Justice Dowd, including Justice Dowd’s findings of fact.  The Court of Appeal came to the opinion that Justice Dowd was right in his findings of primary fact and in his ultimate conclusion and that there had been no denial of natural justice in the Tribunal.

The Court of Appeal held that leave to appeal was required and that aspect of its decision is not presently the subject of dispute.  The court refused leave to appeal.  The court also said that, in any event, on its view of the facts, even if there had been an appeal as of right, that appeal was bound to fail.

This case raises no issue of law suitable for a grant of special leave to appeal to this Court and there are insufficient prospects of success of an appeal to warrant a grant of leave.  The application is dismissed with costs.

The Court will adjourn to reconstitute.

AT 2.57 PM THE MATTER WAS CONCLUDED