Carver v Joyce

[1991] HCATrans 44

_i!i,r J,. AUSTRALIA c---·>).,>~~~~<..I..!

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl29 of 1990

B e t w e e n -

PETER GEORGE STAR CARVER

Applicant

and

BRIAN MAXWELL JOYCE and

DOUGLAS MAXWELL LANE

Respondents

Application for special

leave to appeal

MASON CJ
DEANE J

GAUDRON J

Carver 1 15/2/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 FEBRUARY 1991, AT 4.01 AM

Copyright in the High Court of Australia

MR M.M. HILBERY:  May it please Your Honours, I appear for

the applicant. MR R.A. SKILLER appears with me.

(instructed by Star Carver & Co)

MR P.L.G. BRERETON:  I appear for the respondents with

MR I.M. JACKMAN.	(instructed by Denley Gargett &
Baird)

MR HILBERY:  Your Honours, there are certain authorities I

would wish to refer to and I understand that they

should be handed up at this stage. Essentially

though, Your Honours, the authorities are

reproduced, in the event that Your Honours wish to

refer to them but they are not in question - and

the case essentially will come down to a

consideration of whether the Court of Appeal

exercised its discretion on correct principles.

The principles themselves have been enunciated and

re-enunciated in the cases that are before

Your Honours with the exception, perhaps, of the

Wollongong v Cowan case which deals with the

problem of fresh evidence generally.

The problem which confronted the Court of

Appeal was a problem arising from an attempt to

introduce evidence of facts which had wholly

occurred after the original hearing of the action

on which the judgment against the applicant rests.

The applicant, if I might just shortly take

Your Honours to the facts, subdivided a parcel of land in the Clyde Valley in 1982 and entered into 12 contracts, similar in their content apparently

in this respect, under which he undertook to ensure

that electricity would be connected to the

subdivision; not to the individual lots.	He failed
to carry out that obligation.

In 1986 an action against him by the

respondents was heard by Judge Moore and

Judge Moore's judgment is given in pages 1-4.

Essentially, what happened in the course of those	proceedings appears to be that the defendant, the
present applicant, raised only one defence and that
was a legal defence to the effect that the obligation to connect the electricity had merged in
the conveyance. I suppose it could be put that
alternatively, by proceeding to completion, the
purchasers, of whom the respondents are one, had
waived that condition.

Every one of the applicants' advisors who has

examined the position since the hearing before

Judge Moore is of the opinion that that particular

defence was baseless and not available to the

defendant, the applicant.

Carver 2 15/2/91

The plaintiffs proceeded to prove the breach

and to quantify their damages by giving evidence of

the cost of construction to the respondents acting

as individuals of connecting their lot or, I think,

perhaps, to be precise, connecting some part of the

subdivision to the main electricity grid which was

under the control of the Illawarra Electricity
Council.

That evidence was subjected to some degree of cross-examination by the applicant's counsel at the

time but no evidence was given of any lesser cost

and no objection was ever taken to the relevance of

that evidence. If the Court were to allow for this

case to be reargued, I would certainly wish to be

heard on the question as to whether that evidence

was ever admissible in the sense that it was

totally irrelevant, the real measure of damages in

such a case being, in the respectful submission of

the applicant, the loss in value, that is to say,

the difference in value to the respondents of their

lot with proximity to this particular facility and

the value of their lot without that facility. And

without getting into matters of fact too far, I

think it could be recognized that the difference in

value, while it would be appreciable, was nothing

in the order of $50,000 in 1986.

What happened was that, in effect, then

Judge Moore, without objection, heard that evidence

and proceeded to give judgment accordingly.	The
matter became the subject of an appeal.	The appeal

was singularly founded on this same ground which

the applicant has to concede is untenable, namely,
that there had been some form of merger, and the

hearing of the appeal, although this was never the

subject of any application by the respondents nor,

it would seem, of anything but the most

conventional inquiries from any source, was

considerably delayed. One reason, I am instructed,

for the delay was that for some year the district

court file was lost and this was even at the stage

of settling the appeal index.

In the event, the matter appeared or

reappeared in 1989. The appeal was still pending

but the respondents were taking proceedings to

enforce the judgment and, of course, the

intervening interest that it had accumulated on it.

I am sorry, no, not the interest, just simply the judgment.

The applicant made an application to the Court

of Appeal for a stay of those proceedings and it
was granted on condition that irrespective of the
outcome of the appeal that the applicant pay to the

respondents the sum of $10,000 on account of

Carver 15/2/91

everything and that that sum would under no

circumstances become refundable, and it was paid.

The proceedings were accordingly stayed.

At the hearing of the appeal - I should just

catch up the point of interest - there was a

cross-appeal on the question of interest and there

was no legal argument available. It seemed, to the

applicant and his advisers, to rebut the claim that

if there was a $54,000 judgment in 1986 it had to

carry interest. The point that this appeal arises

out of, however, was what took place shortly before

the hearing of the appeal and at the appeal.

Shortly before the hearing of the appeal a

subpoena was issued to the Illawarra Electricity

Authority and at that stage a series of

correspondence came to light which had not been

previously available to the applicant and which

forms part of the application book before

Your Honours. It was as annexures to an affidavit

in support of a motion to be permitted to rely on

such evidence also before the Court of Appeal and

it consists of pages 55 to 79 of this book, and I

would refer Your Honours in particular and in

sequence to pages 75 and 58.

Page 75 indicates - and I concede the point

that we had only the bare correspondence - that in

September 1988 - and I do not know whose date stamp that is but it seems to be quite clear from the

context that the letter issued at about that date - the council's records would indicate that a meeting

had been held:

to discuss provision of power to East

Nelligen.

And it is beyond controversy that that is the

subject site. And it reports that there had been a

meeting in September 1988, and there is nothing, I

assure Your Honours, in that correspondence or at

present disclosed to the applicant which would

suggest that at any date before mid-1988 this
project for a joint concerted action to connect the

electricity to the subdivision area was on foot,

and I will come back to that question because it

got mentioned in the Court of Appeal.

Page 58 indicates, in my respectful

submission, again - and this was again a matter

which got mentioned in the Court of Appeal. It is

a letter directed from that authority specifically

to the respondents and says that:

Estimates have been prepared for the extension

of Council's existing reticulation system to

Carver 4 15/2/91

provide single phase high voltage supply to

the front boundary of the above written

property -

that is to say, they were going to get it on to

their own site, not just to the subdivision - and:

For this extension to proceed Council -

was required to receive from these respondents,

then applicants to the scheme, $10,110, and it went

on, I might say, in lines 23, 24, 25, 26 and so on

to indicate that there was in fact a repayment

scheme available to the respondents if they could

not find $10,000 instanter

The applicant respectfully submits that that

evidence and the whole of the intervening

correspondence indicated unambiguously that as at

the date of hearing of the appeal the very injury
for which the respondents have sued for

compensation in the district court could be

remedied for the sum of $10,111 and, in addition,

they might - though this was not raised but it

seems quite clear - in fact, perhaps, have been

able to urge some additional or peripheral damages

in the way of personal inconvenience.

GAUDRON J:  Mr Hilbery, what relevance does this evidence

have if, as you earlier submitted, the real measure

of damages is the difference in land value?

MR HILBERY: Because, Your Honour, that question was, in

fact, not urged before the Court of Appeal.

GAUDRON J: Well, if that is the real question, does not one just compound the errors by proceeding by reference to this evidence?

MR HILBERY:  Of course, Your Honour is correct, I do see

that problem but I think it is perhaps a case of -
the applicant is going to waive the tort, so to

speak, he would rather have the $10,000 problem to
deal with than the value problem to deal with.	But
I concede, of course, that opens up other

questions. If the difference in value in 1982 was,
we will say, $5000 or $7000, and that is the sort

of figure that I think is involved, then of course

with intermediate compounding interest one might

get to a figure beyond $10,000. I do see that

problem, but otherwise, of course, the applicant is

confronted with a final judgment in the Court of

Appeal for $114,000 with daily accumulations for an

injury that seems to have carried a $10,000 loss.

The matter is further complicated - and this

was also brought to Their Honours' attention in the

Carver 15/2/91

Court of Appeal - another set of purchasers had

taken a different route altogether. They had

sought by way of proceedings for specific
performance to require the applicant to connect the

electricity specifically in accordance with his undertaking in the original contract. That got before Mr Justice Powell and his judgment occupies

a disproportionate part of this book but it has the relevance, at least, of indicating that this matter

was fully extant. It occupies pages 29 to 54. But

the net result of it was that the matter was sent

off to the master for assessment of damages.

GAUDRON J:  Does it have the further relevance, that despite

what you now say that the real measure of damages

is the difference in value, at no place has that

case been put, but to compensate for that error or

to adjust for that error, we should engage in the

further error of assessing damages on the basis of

what happened subsequently.

MR HILBERY: With respect, Your Honour, I am not

controverting what Your Honour is saying if I am

right about this question of the measure of

damages, but as far as what happened in front of

Mr Justice Powell is concerned, I think the whole argument there - and I did not conduct it - was

along the lines of whether there should or should

not be specific performance and His Honour declared

that it was a case, of course, where - - -

GAUDRON J: There is no final judgment, is there?

MR HILBERY: There is no final judgment in that case so that

the question of damages there might come to be

dealt with under the rubric that Your Honour

suggests, that is quite true, and it might be the

appropriate rubric at that stage.

GAUDRON J:  Why do you not ask this Court for leave to raise

that issue?

MR HILBERY: Well, Your Honour, in the notice of appeal that

has been asked. I think it is the third ground. I ask it notwithstanding what has been said in Suttor v Gundowda and, indeed, recently in this Court, in

Coulton v Holcombe, as I think it is, the seven

rivers controversy, about the raising of matters

after they could have been raised at the hearing.

The difference between this case and the

Coulton controversy is that in the Coulton

controversy, which is the reported in 162 CLR 1, I think, and it has subsequently been the subject of litigation with the parties reversed in the Court

of Appeal in (1987) 17 NSWLR, I believe, in that

case what was being sought and what was firmly

Carver 6 15/2/91

rejected by this Court was that a ground, a legal

argument that was available to be urged before the

administrative division in the first instance was

being sought to be raised here. What distinguishes

that case from the present case, in my submission,

is that the whole issue, in effect, when one looks

at the correct legal principles - the only issue

before Judge Moore was damages and the only basis

on which he proceeded was, in my respectful

submission, in the absence of any enlightenment

from defence counsel at that stage, erroneous and

so, in fact, he let in evidence that, in my

respectful submission, was about as relevant as

what it would have cost to connect the property to

Burke.

I am up against the problem, also, that this

Court has indicated on many occasions - I think the

leading case is Palmer v Thompson, 49 CLR, that

when parties choose to have their litigation

determined on a certain basis they are likely to be

left with it, whatever saner and wiser and much

more learned counsels might indicate at a later

stage were the appropriate issues.

DEANE J:  The district court, being a court of equity,

subject to monetary limits which I forget which no

doubt have changed since I was last aware of them,
if the matter had proceeded differently it would

have been open to Judge Moore to make the order he

made in lieu of specific performance if the

plaintiff had given an undertaking to connect the

electricity, would it not?

MR HILBERY: Well, Judge Moore was dealing simply with an

action for damages.

DEANE J: There would have been a way of getting this

precise order subject to the limits on the

equitable jurisdiction of the district court

if - - -

MR HILBERY:  The limits were so severe, Your Honour, that it

could not have been obtained.	I think at that
stage they were $5000.

DEANE J: Well, if it had been in the equity division of the

supreme court this amount of damages could have
been awarded if an undertaking by the plaintiffs to

connect the electricity and thereby, as it were, overcome, your client's problems had been given?

MR HILBERY: Yes, I have no doubt that form of relief would

have been available, Your Honour, in the equity

court. I do not think it was available in the

district court.

Carver 7 15/2/91

MASON CJ: But you have difficulty with ground 3, have you

not, having regard to what Mr Justice Mahoney said

at page 10 of the application book where he

suggests that you conceded that it was not possible

for you to press that ground.

MR HILBERY:  I did, Your Honour, and I would have to

overcome the fact that that concession has been

made at an intermediate stage. I understand that

in a case, Taylor, I think it is, Your Honour, this

Court has even allowed that to be overcome in an

appropriate case. But the only reason why I would

feel it is appropriate, with great respect, Your

Honours, is that the trial before Judge Moore was

just a bad day for everybody. The plaintiff went

off on one footing - - -

MASON CJ: 

I do not think you need waste your eloquence in

persuading us that everything has gone wrong in
this case that could conceivably have gone wrong,

Mr Hilbery.

MR HILBERY:	I think so, Your Honour, I think that is so. think that was apparent when the Court of Appeal was considering it and the Court of Appeal then,	I
Your Honour, gave certain additional grounds. It relied on Radnidge which, of course, goes back to
Mulholland and in Mulholland the House of Lords had
dealt with the problem of - - -

MASON CJ:  Mr Hilbery, could I interrupt you to ascertain

whether we have any response in the earlier case

that we stood down?

AT 4.23 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.24 PM:

MASON CJ: Yes, Mr Hilbery?

MR HILBERY: There are very few other matters I would wish

to refer to, Your Honours, but there are one or

two. I see that Your Honours have been held to

most unreasonable hours.

Your Honours, in the Court of Appeal it was

conceded that for the purposes of the argument, it

could be assumed that this issue had arisen for the

first time after the hearing and, although

Mr Justice Mahoney had delivered the judgment of

the court had expressed some reservations about

Carver 8 15/2/91

that, it had not been raised in argument,

Your Honours, that that was a serious question but,

in any case, it was conceded.

Then there were two other matters,

Your Honours, which got into the judgment of the

Court of Appeal which I would wish, respectfully,

to express some dissent from.	One was that on
page 16, from line 15 onwards:

The Court has been given, attached to the

affidavit of Mr Carver, a series of letters

and other documents representing

correspondence between various parties. The

Court is left to infer what the position is or

may be as a result of that correspondence. Well, with great respect, Your Honours, I do put

it, and I do not wish to elaborate on it, that

there was only one inference to be drawn from that

correspondence. It was not a matter for any

inference in a more subtle sense.

Then His Honour went on to say:

Whether a particular sum has been finally

agreed upon as being the sum which has in fact

been expended or will in fact be expended by

the plaintiffs/respondents in carrying out the

services -

well, in my respectful submission, Your Honours,

that is in plain contradiction to page 58 where

they are told what they have to put up by way of

their contribution to the last dollar and given an

alternative method of paying it.	And His Honour
went on to say:

what the comparability of service will be

between that which would have been carried out

under Special Condition 17 and will be carried

out under the present -

circumstances. Again, in my respectful

submission - and I do not think my learned friends

will object to this - the contract provided for the

connection of the service to the subdivision. The

letter on page 58 indicates that it was going to

come to their front door and if there is

comparability involved, it was comparability

favouring the respondents and not the applicant.

So that my submission is that that discretion just

simply was not exercised on the principles that

were enunciated.

Those principles, as I was saying to

Your Honours, were given final form ~n England by

Carver 9 15/2/91

the Mulholland case in 1971. That case looked back

to three cases which are cited in it which are all
personal injury cases, and it was itself a personal
injury case, and the foundation case in which all

the matters since the foundation of the judicature

system was reviewed was the 1910 case that is also

referred to in Mulholland.

GAUDRON J:  But do not those cases, Mr Hilbery, go to the

receipt of evidence on the disposition of an appeal
rather than the circumstances in which evidence of

events after hearing will provide the basis for an

appeal?

MR HILBERY:  I would put it, Your Honour, I think, that they

were applications for new trials but I may be wrong

in that respect.	I am sorry, I cannot be more
specific than that.

GAUDRON J: But the new evidence was not the basis on which

new trials were sought?

MR HILBERY:  Yes, in all those cases it was, Your Honour.

GAUDRON J: In all those cases?

MR HILBERY:  Yes, Your Honours. And that is the case in the

sequence in New South Wales with the exception of

Warr v Santos. What happened in Warr v Santos,

which is the only case in which the Court of Appeal

in New South Wales, since the 1970 Act, has allowed

this evidence in at all was a case in which - a

personal injury case again. They have all been

personal injury cases.

Evidence had been given at the trial for

personal injury that a very seriously injured man

would have the support of his wife and at the

hearing of the appeal it became clear that his

wife - and his marriage had totally failed. Then

Their Honours were prepared to let in, and they finally reassessed the damages, on the basis of

other matters that had occurred since the hearing

but they indicated very clearly - it is in the

first page of Mr Justice Moffitt's judgment and

elsewhere in the matter - Justice Hardy would not

have let it in any way - that if it had been

standing by itself it virtually seems clear from

that case that it would not have been a ground.

And in Radnidge and in Sinclair, which are the two

other cases I have cited from New South Wales -

these are both personal injury cases. In my

submission, they were very weak cases. Indeed,

although the House of Lords upheld Mulholland and

its predecessor, Murphy v Stone-Wallwork, it

allowed this evidence in but it was all evidence -

they were all cases of personal injury and they

Carver 10 15/2/91

were all cases in which the very contingency which

had later crystallized had been considered,

controverted and been the subject of direct

evidence and cross-examination.

GAUDRON J:	Mr Hilbery, can I take you to section 75A(2) of the Supreme Court Act, it being under that section,
as I understand it, you sought to have this evidence admitted?
MR HILBERY: Section 75A, yes, Your Honours.	I have a

reprint of it here. It is included with the

matters before Your Honours.

GAUDRON J:  Now, that is the section under which you sought

to tender this evidence, is it not?

MASON CJ: Section 75A.

MR HILBERY: Subsection (7).

GAUDRON J: Yes, under subsection (7).

MR HILBERY:	Yes, Your Honour.
GAUDRON J:	Now, have a look at subsection (2) if you would

not mind. What does that mean, can you tell me?

MR HILBERY:

being an appeal arising out of -

(d) a trial ..... in the District Court.

I have misread this but - I think I got involved in

the "nots"?

(d) a trial -

(i) with or without a jury in an action

commenced before the commencement of section 4

of the District Court (Amendment) Act, 1975.

GAUDRON J: So, it has no relevance to your - - -

MR HILBERY:  No, Your Honour. I thought I had looked at

this but one always finds something else in them. No, Your Honour, that was not a matter that arose that could have precluded this appeal.

Your Honours will see, if you refer to some of these earlier authorities that, as is, I think,

noted in this copy which came out of the Practice,

that subsection (10) was put in in 1989 but it was in force when the matter was before the court and, of course, it is a procedural question but that

does not specifically deal with - subsections (7),

Carver 11 15/2/91

(8) and (9) were in force entirely when the appeal

was lodged.

MASON CJ:  What did you say about them?

MR HILBERY: Subsections (7), (8) and (9) were in force when

this appeal was commenced. Subsection (10) has

been altered since but it is in relation to, I

think, some finding of this Court in relation to
the exercise of a power under section 106 that

was - - -

MASON CJ:  Mr Hilbery, I do not entirely understand what was

happening in the Court of Appeal. Now, it seems,

when you look at page 10, that you indicated that

you could not support the grounds of appeal in the

notice of appeal. Then you indicated in relation

to a ground of appeal dealing with damages that -

well, you would like to argue that but once the

court took that up with you, you conceded that you

could not properly press it.

MR HILBERY: Yes, Your Honour.

MASON CJ:	Then the judgment directs itself to the affidavit relating to the fresh evidence.
MR HILBERY:	Yes, Your Honour.
MASON CJ:	Now, in what context was this affidavit being

dealt with?

MR HILBERY:  A notice of motion for the reception of that

evidence concurrently with the hearing of the

appeal, Your Honour.

MASON CJ: But now, what grounds of appeal were extant to

which that notice of motion related?

MR HILBERY: Could attach. They were extant, Your Honour,

but they were not going to be argued.	I concede
that point.

MASON CJ: What, you mean, it was a notice of motion to

receive fresh evidence in relation to grounds of

appeal that were not going to be argued?

MR HILBERY:  I do not know that that is correct,

Your Honour. I think that the - - -

MASON CJ:  What I am seeking to find out is in what context

was the application for fresh evidence being

considered?

MR HILBERY: 

Your Honour, I do not have the text of the

notice of motion before me but I think it was to
allow that evidence and to give a new trial on that

Carver 12 15/2/91

basis. But it was certainly not being referred -

Your Honour, I have been given a copy of the no:~~2

of motion which was fairly complicated.

MASON CJ:  You seem to have outwitted yourself if you car.I'.::::::.

tell us what the notice of motion sought.

MR HILBERY:  Your Honours, it sought leave to add and rely

upon an additional ground or grounds of appeal.

MASON CJ: Well now, what are they?

MR HILBERY: That:

Since the hearing at first instance the

respondent opponent/plaintiffs have entered

into an arrangement for the supply of

electricity to the land purchased by them fron

the appellant at a cost of approximately

$10,110;

(b) that the effect of such arrangement or of
the present availability of such arrangement

to the respondents is to limit their damages

to such amount and to any further damages

suffered by them arising from any direct

financial loss attributable to non-supply of

electricity to the subject land if it shall be

found that any warranty of such supply given

by the appellant was not merged upon the

completion of the contract in the conveyance

of the subject land to the respondents.

So, in fact, it was seeking leave to add a new

ground of appeal.

MASON CJ: So, you were seeking reassessment of the damages?

MR HILBERY:	Yes, Your Honour.
MASON CJ:	By reference to evidence in relation to matters

you alleged occur subsequently to the trial?

MR HILBERY:  Yes, Your Honour, and in the hearing of the

appeal that was the only ground, in substance,
argued, but it was before the court in that sense.

This was the notice of motion and the affidavit was

filed and read in connection with it and it annexed

that correspondence. Substantially, that was the

entire contents of it. Yes, I have nothing further

to add.

MASON CJ:  The Court will take a short adjournment to

consider the course it will take in this matter.

AT 4.38 PM SHORT ADJOURNMENT

Carver	13	15/2/91
UPON RESUMING AT 4.46 PM:

MASON CJ:  The Court need not trouble you, Mr Brereton.

The only ground on which the proposed appeal

could succeed is a ground not argued at first

instance in the District Court and conceded to be
unavailable in the Court of Appeal. In these
circumstances, the case is not an appropriate one

for the grant of special leave and the application

must be refused.

MR HILBERY:	May it please, Your Honours.
MR BRERETON:	I apply for costs, if the Court pleases.
MASON CJ:	Do you oppose an order for costs, Mr Hilbery?
MR HILBERY:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 4.47 PM THE MATTER WAS ADJOURNED SINE DIE

Carver 14 15/2/91