Cooke v Woolworths Limited

[1989] HCATrans 110

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S3 of 1989

B e t w e e n -

NOEL RICHMOND COOKE

Applicant

and

WOOLWORTHS LIMITED

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J GAUDRON J

Cooke

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 MAY 1989, AT 11. 3LAM

Copyright in the High Court of Australia

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MR K.R. HANDLEY, QC:  I appear for the applicant in this matter,

if the Court pleases, with my learned friend,

MR B.R. McCLINTOCK.	(instructed by Toomey Pegg and
Drevikovsky)

MR B.C. OSLINGTON, QC:  I appear with my learned friend,

MR A.A.TINK, if the Court pleases. (instructed by

Malleson Stephen Jaques)

MR HANDLEY: 

· Your Honour, this a,plication arises out of the

reward publicly offered by Woolworths for information
leading to the arrest and conviction of the

Woolworths bomber.  At the time and from time to time

since the case has attracted considerable public

attention.  We seek to support this application for

special leave essentially tmder the second limb of

secton 35A of the Act but, in relation to one point,

namely, how an intermediate appellate court should

act where there is a wide difference of views with

a view to achieving a satisfactory majority result, we do submit the matter comes within the first limb

as well.

So far as the second limb is concerned, we

submit that the case has been disposed of so far in

a manner which does not do any credit to the

administration of justice. There was no dispute as

to the terms of the offer of the reward which was

in writing, a mere 51 words, and Your Honours no doubt have

picked them at page 21, among other places, in the

judgment of Mr Justice Samuels. There was no dispute

as to the circumstances in which it was made. It was

made in brief and non-technical language, addressed

to the general public, intended to convey a clear and drama.tic

message which would provoke a swift response.

Woolworths would not have wanted any member of the

public to spend time subjecting the language of this

offer to any close analysis, nor would it have wanted the public

to think the offer was illusory or ambiguous.

After the event, when the danger was passed,

Woolworths evidently repented of the generosity of

their offer and have subjected, or attempted to

subject, this simple language to elaborate and

what we submit is totally inappropriate analysis

in a context of hypothetical situations which bore
no relation to the facts of this case as they

occurred. The result has been some, I would suggest,

embarrassing diversity of opinion and we would submit

that what was called for in the face of the arguments

of Woolowrths was a robust application of the

contra proferentum rule.

Three of the four judges have held the applicant

accepted the offer, satisfied its conditions but,
of course, he has secured so far only a verdict for

$4000 , and not for the quarter of a million

which was offered by Woolworths. However, on the

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quantum issue, Your Honours, a majority of the

judges in the Court of Appeal, namely, Mr Justice Samuels,

who expressed a final view, and Mr Justice Clarke,

who expressed a strong tentative view have either

held or opined that the applicant was entitled to

the stated reward of a quarter of a million. This

view did not prevail in the Court of Appeal because

Mr Justice Clarke, alone of the four judges, thought

that the applicant should fail altogether. But, had

Mr Justice Clarke withdrawn his judgment on that

point in deference to the views of the other three
judges in the case the appellant would, or at least
may well have, secured a verdict for a quarter of a
million.

In our submission, it is not appropriate for intermediate appellate courts to dispose of cases

in this way especially now that no appeal lies of

right from such courts, either to this Court or to

the Privy Council.

DAWSON J:	When you say "in this way", you mean not dealing
with the point.

MR HANDLEY: Well, Your Honour, a member of the public reading

those judgments sees that two judges of the Court

of Appeal said, one in a final way, and

Mr Justice Clarke in a strong, provisional way, that my client should get a verdict for a quarter

of a million.

DAWSON J:	So Mr Justice Clarke should have said, "Well, that
is my view but, seeing I am in the minority on that
point, I will now go on with it on the basis ..... "
yes.
MR HANDLEY:	Yes, Your Honour, that is our point.
DAWSON J:	And the portion of the second paragraph of 35A that
you rely on is generally - the administration of
justice generally.  Yes, I see.

MR HANDLEY:  Yes, Your Honour. But the duty of an appellate

court to produce a satisfactory and conclusive result

in a case where there is a spread of opinions is a

matter which, in our submission, comes within the

first limb anyway.

DAWSON J: This Court has done the same on occasions.

MR HANDLEY:  Yes, Your Honour, I appreciate that, but it maybe

that the process should start working its way up the

appellate chain. I mean, one would think of a case

where in the supreme court or in this court, there
were seven points in the case; this Court sat a

Full Court; each Justice found for one party on

one point but, on every point one party lost 6:1,

it really would be grotesque if you could add up the

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seven minority views to produce a view in favour of a party who had lost 6:1 on every issue, but,

in our submission, I leave that to another day

as far as this Court is concerned in view of the

fact that diverse reasons leading to what I might

call perverse majorities in intermediate appellate

courts is, in our submission, a matter of public

importance and satisfies both limbs.

Apart from that, Your Honours, offers of rewards

are quite common. They have already given rise to a

number of leading cases in the Anglo-Australian law

of contract. In this case, however, we submit that

the majority in the Court of Appeal and the trial

judge have adopted an over-technical and

over-analytical approach to the construction of a

short and simple offer to the public. That is, in

our submission, totally inappropriate. What was

called for was a purposive construction of the offer,

a robust application of the contra proferentum

rule and that would have solved all difficulties

and that, in our submission, brings this case within

the second limb.

We put what I am going to say advisedly, but

members of the public with some knowledge of this

case could be pardoned for thinking that the courts

have allowed a large corporation, which repented of

its offer once the danger is past, to escape from

what members of the public might have thought was
the intent of the bargain by an exercise which we
describe as "verbal casuistry". In our submission,
those two matters bring this case, which is otherwise

not one laying down important questions of general

principle and the like,within the category	of ones
which this Court should grant special leave.

MASON CJ: Yes, thank you, Mr Handley. The Court need not trouble

you, Mr Oslington. The construction of the contract

in this case does not raise any question of general

principle.	The outcome of the case turns on the
particular language of the contract and would not,	in this Court, be likely to result in any ~lucidation
of principle. We do not consider that in this case the
divergent reasons given in the courts below
constitute a sufficient ground for concluding that
the interests of the adi:ninistration of justice require the grant
of special leave to appeal. The application is
therefore refused.

MR OSLINGTON:	I seek an order for costs, Your Honour.
MASON CJ:	You cannot resist that, Mr Handley?

MR	HANDLEY:	No, Your Honour.
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MASON CJ:  The application is refused with costs.

AT 11.42 AM THE MATTER WAS ADJOURNED SINE DIE

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