Dolomet Pty Ltd and Anor v Minter Ellison (a Firm) M25/2000

[2000] HCATrans 763

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M25 of 2000

B e t w e e n -

DOLOMET PTY LTD and PETER JAMES BERMAN

Applicants

and

MINTER ELLISON (A Firm)

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 DECEMBER 2000, AT 10.59 AM

Copyright in the High Court of Australia

MR B.F. MONOTTI:   If the Court pleases, I appear for the applicants. (instructed by Cornwall Stodart)

MR P.J. RIORDAN:   If the Court pleases, I appear on behalf of the respondent. (instructed by Blake Dawson Waldron)

McHUGH J:   Yes, Mr Monotti.

MR MONOTTI:   If the Court pleases, the focus of this application is the making by the respondent by its counsel of baseless imputations against the second applicant, in cross‑examination of him and in final address, of the commission by the second applicant of serious criminal offences, of extortion, blackmail and perjury, and the rejection by the Court of Appeal of those circumstances as foundations for an appeal.

GUMMOW J:   That is not quite fair to the Court of Appeal, is it?

MR MONOTTI:   The Court of Appeal, I submit, by finding as it did that the proposed grounds had no prospect of success, in effect ‑ ‑ ‑

GUMMOW J:   That is not the sole ground on which they decided it.

MR MONOTTI:   Certainly, I accept that, your Honour, but in the exercise of the court’s discretion upon an application for an extension of time, the applicants’ prospects of success was one of the vital elements to be considered by the court, along with others, and indeed, it might be said that, having regard to the approach adopted by Mr Justice McInerney in Hughes v National Trustees, which is one of the cases to which I have referred in my summary, if there is eliminated from the field of consideration, upon that exercise of discretion, the applicants’ prospects of success, then it might be said the applicant has little chance at all then of getting anywhere with his application for an extension of time.

GUMMOW J:   No, in the Court of Appeal, Justice Chernov said there was a real doubt, did he not, about the prospects of success, at page 135 line 25, and he had earlier dealt with the question of credit at page 134 line 25.

MR MONOTTI:   The telling part of his Honour’s reasons, I submit, appears at page 134 from line 23, where his Honour says:

It is difficult to see how these grounds can be made good.

And then his Honour goes on to say:

First, the credit of the second applicant and Mr De Koning was a critical issue in the case since they gave opposing versions of relevant events.  That, in itself, would call for vigorous cross-examination on the issue of credit.

Fundamentally, it is my submission, that it is quite erroneous for this type of attack to be in any way characterised as simply vigorous cross‑examination on the issue of credit and it demonstrates that the court has, in effect, rejected the primary proposed grounds of appeal, which were related centrally to that challenged attack. 

My respectful submission about this is that it is clear from this that the court, overall, when considering this application for an extension and exercising its discretion, has, in effect, decided to put out of consideration the applicants’ prospects of success and has dismissed the grounds upon which it was proposed to appeal as being of, in essence, no substance at all when the law, in my respectful submission, has developed to this point, that attacks of this type, in cross‑examination particularly, of a witness, ought not in any way to be condoned and must be regarded by the Court very seriously indeed, as potentially damaging.

This is a case which brings into the clearest focus a matter of great general importance, in my submission, and that is that here we have a case where, not only is there the clear potential for damage to be caused, and the production of an unfair trial for that reason, but the second applicant, who was the primary witness, the fundamental central witness to the applicants’ case, was damaged at the time of the cross-examination.  He suffered then and there in the witness box, as a result of the attack upon him, psychological injuries which endured from that time, and this case is one where therefore, not only is there the unfairness produced by the attack itself being made and therefore the impression being created in the mind of his Honour as to the matters put to the witness and the damaging effect of the questions which is well recognised by the cases, but further, there is the second element of injustice, which is that the witness himself has been, if I may put it this way, knobbled in the witness box.

McHUGH J:   Yes, but what you have to face up to is that there is a finding in this case of actual prejudice and recognising that your clients’ appeal might succeed and that there would be a new trial, the judges thought that the respondent would suffer prejudice.

MR MONOTTI:   In my respectful submission, your Honour, that does not cut across the force of my argument, because ‑ ‑ ‑

McHUGH J:   I think it does; in fact, it rather indicates that what you say is the force of it is based on a false premise.  Their Honours say at page 135, after saying that “there is real doubt as to the prospect of success”:

But even if that factor were put to one side, I have formed the view that the respondent would suffer unfair prejudice if the proposed appeal were to proceed.

And they refer to the fact, on page 136 that there would be a new trial and at page 137:

Thus, in my view, the respondent would be unfairly prejudiced if the applicants were allowed now to proceed with the proposed appeal.

Now, how can you answer that, and that is decisive?

MR MONOTTI:   My answer is this, that having taken out of consideration prospects of success, and, I submit, erroneously or certainly arguably so, that they have therefore concentrated attention on limited factors, which mean that the discretion could not have been exercised unfettered in the way that it ought to have been.  If I might take the Court briefly to the way in which his Honour Mr Justice McInerney in Hughes looked at the question of doing justice between the parties, upon an application for an extension of time, and I refer ‑ this is case No 17 in the applicants’ book of cases – and I refer particularly to a passage appearing on page 263 of the report from line 50.  His Honour there says:

It is clear, however, that whether the applicant seeks “special leave” or merely “leave”, consideration alike of the question of possible injustice to the applicant if the application be refused and the judgment left undisturbed, and of possible injustice to the respondent resulting from the disturbance of his seemingly vested interest in the maintenance of the judgment involves a consideration of the prospects of success of the appeal if the extension be granted.  For it would be unjust to the respondent to put him to the trouble and expense of an appeal if the judgment sought to be attached is plainly right –

and I submit that, in such an application, therefore, when one is appealing to the court’s consideration of doing justice between the parties, if this fundamental element of prospects of success is taken out of consideration, then there is little left which can possibly help the applicant in the application.

McHUGH J:   Yes, but in a case where there is inordinate and unexplained delay and the respondent would suffer prejudice if there was a new trial, it is difficult to imagine a case in which it would ever be proper to exercise the discretion to order a new trial, no matter how strong the grounds of appeal were.  But, in this particular case, the Court of Appeal thought that they were weak grounds.  They considered them, it was one of the factors they took into account, but they found not only unexplained and inordinate delay, but actual prejudice after that time to the respondent and what they regarded as not a strong case on the merits.

MR MONOTTI:   Your Honour, the finding of actual prejudice is another matter with which we take issue, certainly, and the way in which the court has approached its exercise of discretion in that regard as well, by applying – and this is one of the belated questions – principles applicable to strike‑out applications for want of prosecution and here, it is submitted that the considerations as to delay involve quite different things in the sense that, unlike strike-out applications and unlike the matters which were taken into account in the authorities relied upon by the court in that regard, there has already been a trial, there has already been a transcript of evidence, the witness has been found ‑ ‑ ‑

McHUGH J:   But look at the realities of the matter:  this is a trial in front of a judge, matters are put in cross-examination which it is said should not have been put in cross-examination; the judge did not base his conclusion on those aspects; you have got to say that somehow they subconsciously influenced him.  Well, that is a fairly difficult proposition to make, that you should succeed on an appeal on that basis, and you add together all these other factors in the case, it would have been, to say the least, surprising if you had got an extension of time in all the circumstances of this case: inordinate and unwarranted delay and actual prejudice, plus what you rely on for the merits.

MR MONOTTI:   Your Honour, as to the merits issue, and in relation to the way in which his Honour the trial judge approached it, his Honour made a severe finding adverse to the credit of the second applicant based upon his performance in cross-examination.  Although his Honour did not refer to the matters of blackmail and extortion put to the witness during the course of his examination, that, in my respectful submission, is not the point, in that the damage done is the damage by the asking of the questions by putting before his Honour, by senior counsel in the course of cross‑examination and in his address, the notion that this witness had been guilty of such serious offences and, secondly ‑ ‑ ‑

McHUGH J:   But it is a large proposition to suggest that a professional judge is going to be influenced by that sort of factor.  In fact, one would think it would more likely react in your clients’ favour, that if there was no basis for the cross-examination, that the other side, particularly a solicitor, being the defendant, had put it forward, it would affect the other side’s credit more than your clients’.  I mean, your client may be dissatisfied with this result, but a long time elapsed between the verdict and when he sought to appeal and all these problems, I find it difficult to see any error in the judgment.

MR MONOTTI:   Your Honour, there is a secondary aspect to the proposed grounds of appeal on the basis of the attack upon his Honour’s judgment at the first instance, and that is the question of whether his Honour was, in any event, duty bound, either under the provisions of the Evidence Act Victoria referred to, that is sections 37, 39 and 40, to forbid that examination and whether, in any event, his Honour was so bound by a common law duty which certain of the cases referred to in the summary in the United States would appear to recognise as being well settled.  When it comes to the United States’ cases referred to ‑ ‑ ‑

McHUGH J:   Yes, but in fact, with great respect, Mr Monotti, the summary of argument seems largely misconceived.  The issue here is whether the Court of Appeal’s discretion miscarried.  Your whole attack, or the bulk of your attack, in your written submissions seems to be on what the trial judge should not have done or should not have allowed or permitted.  What you have got to show is some error in the exercise of this court’s discretion in refusing to grant an extension of time after such a long delay, which is unexplained, inordinate and which results in prejudice to the respondent.

MR MONOTTI:   Your Honour, when it comes to the Court of Appeal’s approach, principally I rely upon the Court of Appeal rejecting, in my submission, the proposed grounds of appeal which, I submit, the court ought not to have done.

McHUGH J:   You state one proposition, if I recollect properly, that the Court of Appeal misdirected itself as to the merits of the proposed appeal and then you go into all the detail about what the appeal would be, and the Court of Appeal seems to me to have considered it, the question of appeal, and they thought that it was a factor of minor importance in this particular case, as well they might, having regard to the delay and the actual prejudice the respondent would suffer.

MR MONOTTI:   Your Honour, in relation to the question of delay, the case has this distinguishing feature and that is that, on any view, first, the applicants were put into the position of having to apply for an extension of time within which to appeal, because the injury sustained by the second applicant prevented them from doing so within the time.

McHUGH J:   Well, even that argument on its face is open to some questioning, is it not?  There was a long delay, even between April of 1999 and the applicant consulting Professor Burrows and the time when the appeal was lodged or the application was lodged.  Even if it be assumed in favour of your client that by reason of the cross-examination he was so upset that he could not look after himself, notwithstanding that he had involved himself in taxation of costs and so on, even if those matters are excused, there are still other delays which are not explained.

MR MONOTTI:   I certainly do not submit that there were not other delays, your Honour, but first, by reason of the injury sustained, the applicants were not able to appeal within time, so there had to be an application for an extension and many months after the expiry of time limited for appeal were explained by the injury sustained by the second applicant.  The period of time then left, even according to the way in which the Court of Appeal approached it, was a period of numbers of months, but that is all.  Then the court, when assessing the question of whether or not that amounted to inordinate delay and whether there was prejudice, approached the matter in reliance upon principles applicable to strike‑out applications for want of prosecution.  My submission about that is simply this, that those principles cannot be brought into application directly in the way the Court of Appeal did, that there must be consideration then given to the fact that there has already been a trial and all of those things that ordinarily arise when one considers a strike-out application as to difficulties in locating witnesses, recollections and the rest of it, do not apply.  One has already had the benefit of the trial, everything is there before the parties, and so the question then is, is it at all appropriate ‑ ‑ ‑

McHUGH J:   You do not need much experience of forensic contests to know that when witnesses have given evidence and then there is a second trial years later, that you will find inconsistencies and discrepancies between the evidence that they give and what they have given at the earlier trial, particularly if they are honest witnesses, and then those inconsistencies are seized upon to damage their credit.  And that is the case here.  I mean, this verdict was given on 7 November 1997 and your client did not file a motion to extend time until two years, almost four months later, namely on 25 February this year.  Well, in those circumstances, you would want a powerful case.

MR MONOTTI:   I notice the time, I have just gone through a red light, your Honour, but my submission is that the case was potentially powerful.  If the Court pleases.

McHUGH J:   Thank you.  We need not hear you, Mr Riordan.

The Court of Appeal of Victoria dismissed an application brought by summons filed on 25 February 2000 for an order extending the time for the service of a notice of appeal against a judgment given in the Supreme Court as long ago as 7 November 1997.  The Court of Appeal was exercising a discretionary power.  It had regard to various matters, including the prospects of success of various grounds of the proposed appeal, and determined that the respondent would suffer unfair prejudice if the appeal were to proceed.  In addition, the court found that there was inordinate and unexplained delay in the bringing of the appeal.  There are no reasonable prospects of success in persuading this Court that the exercise by the Court of Appeal of its discretionary power miscarried.  In those circumstances, special leave to appeal must be refused.

MR RIORDAN:   I seek costs, your Honour.

McHUGH J:   It must be refused, and with costs.  The Court will now adjourn to reconstitute.

AT 11.22 AM THE MATTER WAS CONCLUDED