Commonwealth of Australia v Verwayen

[1989] HCATrans 58

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M87 of 1988

B e t w e e n -

THE COMMONWEALTH OF AUSTRALIA

Applicant

and

BERNARD LEONARDUS VERWAYEN

Respondent

Application for special
leave to appeal

MASON CJ DAWSON J McHUGH J

Verwayen

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 MARCH 1989, AT 11.14 AM

Copyright in the High Court of Australia

M1T4/l/PLC 1 17/3/89

MR M.E.J. BLACK, QC:  May it please the Court, my learned

friend, MR N.A. MOSHINSKY, QC, and I appear for

the applicant, the Connnonwealth, in this matter.

(instructed by the Australian Government Solicitor)

MR B. K. THOMSON·, QC:  If the Court pleases, I appear with my

learned friend, MR C.W. MOYLE, for the respondent.

(instructed by James Taylor & Co)

MASON CJ:  Mr Black, I think it might be more advantageous

if we heard from Mr Thomson first.

MR BLACK:  May it please the Court.

MASON CJ: Yes, Mr Thomson, why should we not grant special leave?

MR THOMSON:  Your Honours, it is our submission that there is

not sufficient - or any doubt about the·correctness

of the result because it is our submission the only

decision that could have been arrived at in this case

was that there had, in fact, been a waiver. I say

that, and that is so whether you arrive at by a

waiver strictly so called or by a waiver and estoppel

as it usually is in the books, by an ordinary estoppel,
in this case, or even as the court found, an estoppel,
a promissory estoppel. And all those led only to one

conclusion - the evidence led only to one conclusion.

There is really no dispute about the facts. There is

no dispute that the Connnonwealth, when it delivered its

defence, waived the statute and intended to waive the

statute.

MASON CJ:  But the Full Court is against you on waiver. We can

hardly hold that the Full Court was wrong on that

point without actually hearing an appeal.

MR THOMSON: Well, Your Honour, with respect, in our submission,

they are not really against me. All they said was,

"Right, now there are the facts." Now, the

Connnonwealth, when it filed its defence, intended to

waive the statute. I said that and they then went on

to say, well now, are they estopped from asserting or

estopped from saying, "We didn't waive the statute"	are they estopped from - the real estoppel is are they
but, of course, the very thing the Connnonwealth had
conceded all along was that they had waived the
statute but they said they can change their minds.
Now, that is what the real point - now, you have to first of all - in this context, you are looking at
the factual situation. As it is said, waiver is
a conclusion of law arising from the facts. Now, the
facts were not in any dispute at all in this cas~ and
they led to only one conclusion. Now, waiver and
estoppel, historically, has been linked together over the years, correctly or incorrectly, it does not
really matter. The same result is always achieved. In
other words, have you waived the statute and if you have,
are you estoppect from saying you have not? Now, it is
as· simple as that. And it has long been said, of course,

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for waiver, that is to waive the benefit of a provision

of the Act, that may be a voluntary action and, indeed, one of

the earliest casEs on that was, in fact, the House of lDrds

in GREAT EASTERN RAILWAY v GOLDSMID, (1884) 9 AC 927

and the relevant page is at 936. I have the copies

here for the Court - a very short passage at the bottom

of page 936, talking about the type of actions -

type of Acts of Parliament, the provisions of which it

is possible to waive.

Now, it may be that one of the problems in cases such as this involves what do you mean by "waive".

"Waiver", we simply say, is simply the renunciation

of your rights. At the bottom of page 936 it talks

about the type of Act they were dealing with there.

The Lord Chancellor said this - the last paragraph:

It is a just introductum for the particular

benefit of the city of London, and it falls

within the general principle of law,

"Unusquisque potest renunciare juri prose

introducto;" a principle not only of ancient

but also of modern application, applicable even

where Acts of Parliament have been passed of a

much more public character. In such cases, when

the rights given have been only private rights,

unless there has been also in the Act of Parliament a clause excluding a power of

contract, it has been held that by contract

or by voluntary renunciation such rights,
as far as they are personal rights, may be

parted with and renounced.

Now, that is, first of all, what you are doing; you

are waiving the statute. It may be voluntary. Now,

once you get to that stage, you say, "Well now, in the

circumstances, was it intended to be permanent or

was it not?" Now, once it is intended to be permanent,

once it is clear on the consideration of the act -

in this case, the act of filing the document - you

then say, "Well, they have been renounced.", and

it gets very much akin to what the Court was saying

in SARGENT's case, that this is, we submit, precisely -

comes to the same conclusion as Mr Justice Stephen was

talking about in election. Now, I know the Court

said this was not an election. It is very difficult

to see what it is if it is not an election. If you

have a right and you choose not to exercise that

right or you elect not to exercise that right, you

elect to renounce it as the case may be, you are

getting to precisely the same situation as you get
in the, what you might call, true election cases

referred to by Mr Justice Stephen in SARGENT' s case,

the passage appearing in the judgment of the court.

So that you start off: we say this decision was

clearly correct in its ultimate; that is, that

whether waiver plus estoppel or waiver strictly so called,

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the decision of the Full Court was correct, that is,
the Commonwealth were no longer allowed to rely on

the Act, they having renounced their rights under the

Act.

MASON CJ:  But it is a difficult question, is it not,

Mr Thomson? What you are seeking to persuade us

to conclude is that it is a clear case, notwithstanding

that it is difficult, and that the answer is an answer

different from the answers that were given by the

Full Court.

MR THOMSON:  Once again, Your Honour, it depends what the

answers are.

MASON CJ: Well, you see, the Full Court has held against waiver.

That is the first point you take. The Full Court has

also said it is not a case of election and the Full

Court has said it is a case of promissory estoppel.

Now, the boundaries of promissory estoppel, the elements of promissory estoppel, certainly in terms of detriment,

have not yet been conclusively defined and yet you

have to say the Full Court is right on that issue. It

is difficult for you to persuade us that the Full Court

was right for grounds not taken by the Full Court and

rejected by them.

MR THOMSON:	When Your Honours say they were rejected by the Full Court, the factual situation upon which you
determine whether there is waiver or not, in our submission, were all determined by - and, indeed,
were almost agreed upon. This is one of the problems,
you see, Your Honour: the Court gives leave to appeal;
what are we, another 12 months away from ever getting
down the road if we, as we say, must, in fact, be
successful. Where is the point of - because it is the
answers we are concerned with and whether the answers were for technically correct reasons or there has been
a bit of a blurring, so to speak, as there has been
over the centuries on this doctrine, in our submission,
it all comes out to the one answer, that the answers
were obviously correct, that the Commonwealth was not
able to rely on this.  And it certainly - - -

McHUGH J: But it does not necessarily come out to the same

answer, does it, because election, properly understood,

is a once-for-all doctrine?

MR THOMSON:  Yes.

McHUGH J: Promissory estoppel is not, and one matter that is

not addressed in the judgments in the court below is

whether any injustice done to your client could have

been cured on other terms, that is to say, that they

were permitted to raise the defence of the statute of

limitations but remedying any injustice that had

occurred to you by some other means, perhaps an order

for costs or something of that nature.

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Verwayen
MR THOMSON: Well that was considered because Mr Justice King

took the view that you could find out what the

detriment was, on his view, and then after an

inquiry into it make an order for payment of that

detriment. Now, with the greatest of respect, that is

a new proposition of law.

We say when one talks about the public importance

of the doctrine, some may say it is more important

that citizens are able to accept the words of their

government, they accept and rely on what they say

and agree that they intended to say. Remember this,

Your Honour, some of that correspondence which went

on for about 18 months after the actual delivery of

the defence, together with the other proceedings,

the relevant ministers being the Attorney-General and

the other - Minister for Defence, who is the other

man involved in it in this context, and the Acting

Minister for Defence, all kept asserting in the clearest

terms, "Look, we can't do anything about getting your

trial on earlier.	The Commonwealth has waived the
statute of limitations.	The Commonwealth has waived

the GROVES' defence and we have instructed our people

to do their best to get this case on as quickly as

possible" and, I agree, they did their best to

co-operate with us in getting the case on. And, of

course, had we succeeded in even one of those

applications for a speedy trial, Mr Verwayen would

not have been in this Court today.	He would have had
his judgment and gone home happily.	So, when we

talk about justice and we talk about public importance,

surely it is important that the community is encouraged

to rely on their governments when governments m~ke

considered statements intending them to be relied upon -

because they have never ~aid to the contrary.	They said, ''Yes ,
we intended to waive it and we did waive it.	But now,

for some reason or other we want to change our minds"

which they have never yet said.

But getting back to the fundamental point,

Your Honours, as I say, whether there is a separate

doctrine of waiver or not, it is clearly, of course,

tied up with estoppel. American authorities quite

clearly point that out and they say once - - -

McHUGH J:  Common law estoppel or equitable estoppel?

MR THOMSON: Well, all I simply say, Your Honour, is prima facie

it is "continuons" as the Americans call it. "Final"

is said in Australia. Once you have renounced your

rights, that is it, and you are estopped from asserting

to the contrary. Now, whether you need that or not -

and that is why it has always been tied up, waiver and

estoppel, as a doctrine and you find in the early days,

particularly Mr Justice Isaacs in this Court used to

always link it together, waiver and estoppel, as though

it is the one thing. If it has been waived, you are

estopped from pleading it. It is as simple as that.

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Verwayen

Why? Because it has been waived. Now, as we say,

those facts are agreed upon by the parties, virtually,

here, that in fact the Commonwealth did waive this.

But the only argument is were they able to change their mind for no reason at all? But the factual

situation of the waiver has been determined by all

the judges. Now, whether, of course - and you do

need estoppel for the second part, as I say, to say

you cannot now rely on it.	Now, whether that is
technically correct or not, it is irrrrnaterial.	You

find many passages in the books which just put it

baldly:  it has been waived and you are estopped from

asserting the contrary.

This Court in MAURICE's case dealt with waiver

of a right and said the very thing. This Court said

once it is waived, that right, it is final. It does

not even matter on your intention, this Court said

in MAURICE's case -

MASON CJ: That was waiver of privilege, was it not?

MR THOMSON:  That was waiver of privilege, yes, Your Honour.

MASON CJ: It is a long way from this case.

MR. THOMSON: Well, Your Honour, it is waiver of a right and

our submission is the doctrine is precisely the same because the Commonwealth have a right to rely on the

statute if they choose. That is a personal right to

any defendant, and any defendant can, if he so chooses,

waive that right. And if he waives it in

circumstances where it is clear that it was intended

to be permanent, as the American courts say, that is

the prima facie intention. Unless you can spell out

from the facts some limited - and there have been

limited cases. KERRISON's case was referred to in

the judgment as one where the interpretation was it was
limited to a certain time -a reasonable time in that

case -to do a particular act.

McHUGH J: What, is your point that if the Corrrrnonwealth had

written, as they did, saying that they did not intend

to rely on the STATUTE OF LIMITATIONS, and, if the

next day they had changed their mind and said, "We've

reconsidered it, we are now going to rely on it'', it

would then be too late?

MR. THOMSON:  I am not saying that quite, Your Honour, because

what is the act of renunciation? It is the filing

of the defence. That is the act of the renunciation.

That is when you get - up until there there is either

an intention or an agreement to waive which may or may
not have some problems with it. It is evidentiary
to determine when the defence was delivered what were
the circumstances in which it was delivered and is it

proper to infer from that that it was intended to be

once and for all, and the letters and like are evidentiary.

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The act is the delivery of the defence, and the

letters merely support - not only support: clearly

lead to only one conclusion, that in performing
that act of delivering the defence, admitting
liability, the Commonwealth was intending to - did,

in fact, waive the statute and was intended - and

it was a waiver which was for good.

Now, as we say, it all comes down to the

ultimate fact that we say for what ever reason

the decision of the Full Court was correct.

McHUGH J:  What happens to an accused in a criminal trial who

pleads guilty	and then asks to change his plea to
"not guilty"?	Does that proceed upon some eroneous

assumption as	to what the law is?	Has he waived his
right once he	pleads guilty?

MR THOMSON: No. It is evidence. It is evidence of the

fact that he has pleaded guilty. I think it is a

matter of justice, Your Honour, probably, in a criminal

case. In criminal cases the courts say, "Well, very

well, if you want to change your plea, you will" but

I think you will find cases where - - -

MCHUGH J:  The court refused to

MR THOMSON:  Yes, it is usually the other way around. He pleads

not guilty and then sometime during the trial, for
whatever reason, he alters his plea to guilty and

usually there is a separate arraignment that takes

place at that stage. The first one is withdrawn by

leave and a second one is filed and he pleads anew to

the second arraignment. So, it is not quite the same

thing. But our cry - cri de coeur, if you like - is

that the ultimate decision being so plainly correct,

in our submission, it is unfair to Mr Verwayen and

his colleagues to now be sent another 12 months down

the track, at least, in circumstances where this

proposition is being put up which caused a lot of

concern and certainly the presiding judge who said,

"Well, look, is the argument for the Crown this,

that when they said they were going to admit - waive

the statute and did, in fact, do it and then wrote

all those letters saying that we have done, that

the citizen should have said,"Look, we know you are

lying, we know you don't mean that." So, that may be,

surely, a more important point than whether this is a

proper case to extend the boundaries of - or to

determine what the boundaries are of a promissory

estoppel. And the circumstances, we say, are a manifest injustice has continued to Mr Verwayen

and his colleagues because it has been admitted all

along that the Commonwealth were negligent. They have

gone to trial on three other cases admitting negligence:

Palmer, Mead and, of course, the first case of anything and they continued with that view in Verwayen's

case.

MlT4/7/PLC	7
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Now, it seems strange, surely, that where the

Full Court has spoken and we say their answer is

manifestly correct - - -

McHUGH J:  But how can you say that because the judges of the

Victorian Supreme Court are divided 2:2 on this?

You lost before Mr Justice O'Bryan and Mr Justice King

dissented.

}1R. THOMSON:  Mr Justice O'Bryan seemed to determine it on a -

Mr Justice O'Bryanwas so incensed that he ordered

the Commonwealth to pay - though entering judgment for them, ordered them to pay the costs because of

their conduct. But that, in our submission,

merely exemplifies how we say	it is ultimately
creating greater injustice on Mr Verwayen.	We

say, when you analyse it carefully, the judgment

decision is right and the reasoning of the judges

is substantially correct because, as I say, this is

a case where it is admitted that they waived the

statute, using that word "waive" there as a descriptive

word to describe. They had power to do that, it was

within their rights. There had never been any

challenge to that, that they waived the statute.

The question is does that have legal consequences?

Surely it must, with the greatest respect - legal

consequences to the Commonwealth. The legal

consequences are those which the Full Court said

attended it. However, I cannot take it any further.

It may be some of the reasons the Full Court are

not as neat or compartmentized as may be

but substantially it all comes to the same situation.

Did they waive it? Answer: yes, everybody said so.

Why should that not have legal consequences? Because

it was intended to have legal consequences. It was

intended the plaintiffs issue and go to judgment on

it. This is not a case of something being hidden or

anything like that. They were asked beforehand

and they said, "Yes, we'll waive it."

MASON CJ:  I think you have made that point for what it is

worth, Mr Thomson.

}1R. THOMSON:  Yes, Your Honour. We come back then to say this is

akin to SARGENT's case.

MASON CJ:	I think you have made that point as well.
}1R. THOMSON:	And got the Earl of Selborne saying that this

can be a voluntary act. Now, you put all those

together. Where is the error in the decision of the

Full Court? Certain	in its result. If the Court
pleases.

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

you, Mr Black. There will be a grant of special leave

in this case.

AT 11.38 AM THE MATTER WAS ADJOURNED SINE DIE

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