Frankipile Australia Pty Ltd v Mahon

[1990] HCATrans 198

Af,r ~, AUSTRALIA,1Jt--'.)),')3:),'$-««<,'-"

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A8 of 1990

B e t w e e n -

FRANKIPILE AUSTRALIA PTY LTD

Applicant

and

PETER THOMAS MAHON

Respondent

Application for special leave

to appeal

BRENNAN J
TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 23 AUGUST 1990, AT 12.40 PM

Copyright in the High Court of Australia

Frankipile 1 23/8/90

MR J. MANSFIELD, QC:  May it please the Court, I appear with

my learned friend, MR J.E. LUNN, for the applicant.

(instructed by Ward Nolan & Co).

MR M.L. ROBERTSON, QC: If the Court pleases, I appear with

my learned friend, MR A.B. GOODE, for the

respondent. (instructed by Mellors).

MR MANSFIELD:  If the Court pleases, we have also reduced

our submission into a summary form and we present

to the Court that summary, together with the

materials upon which we rely.

BRENNAN J: Is your submission based largely on the

proposition that there is some divergence among the Australian courts as to the relevant considerations which affect the exercise of the discretion?

MR MANSFIELD:  Yes, Your Honour. There is divergence among

Australian courts and within our own supreme court here on a number of particular matters so it is our submission that that which the House of Lords did

in Birkett v James it is now appropriate for this Court to grant leave to consider and that this is

an appropriate case for that to be done.

BRENNAN J:  How then do you deal with the observation on

page 16E of the appeal book that:

It was agreed on all sides that the

principles enunciated by Bray CJ in Ulowski v

Hiller were applicable.

Was that not agreed?

MR MANSFIELD:  It does not resolve the matter for two

reasons. Although His Honour says that, Justice

White in fact adopted a different view on one

matter; that is, whether time up to the expiration of the Statute of Limitations plus 12 months is or

is not relevant to be considered at all and that is

inconsistent with what Chief Justice Bray said in

Ulowski. And, secondly, because Chief Justice Bray

in Ulowski left open the question of whether an

action against a solicitor for a plaintiff is or is

not a relevant consideration. Since that time the

Full Court in Williams in South Australia decided

that was not a relevant consideration and there

have been conflicting views of full courts of

supreme courts of other jurisdictions within

Australia on that topic.

TOOHEY J:  Is there a decision precisely in point which

holds the availability of an action, that is, an

action against a solicitor, to be a relevant

consideration?

Frankipile	23/8/90
MR MANSFIELD:	There is, if the Court pleases, a decision in

Queensland of Borg, which is - - -

TOOHEY J:  I am not asking you to take us to it at the

moment, Mr Mansfield, thank you, but it is Borg, is

it?

MR MANSFIELD:  Yes. Well, there is a Full Court decision of

Borg in Queensland and a single judge, that is,

Mr Justice McGarvie, in Victoria, in the matter of

McKenna, saying that. His Honour was the only

judge of the Full Court that dealt with that topic;

the other two members of that Full Court did not

deal with that topic.

There is another Full Coart of the Supreme

Court of Victoria in the matter of Soper where two

of Their Honours reached a view which was a sort of

a midway position saying that the possibility of an

action against a negligent solicitor may be a

relevant consideration if all else is equal but not
otherwise in that - so there is really three

positions which have been adopted.

McHUGH J: But, how can this be a proper case to grant

special leave when you have a finding such as that

of Mr Justice Olsson at page 35, that:

The affidavit evidence relied upon is

extremely equivocal as to precisely what type

and degree of prejudice will result if the

present action is to proceed.

And, the affidavit is, to put it mildly, silent

about some significant matters and one might be

pardoned for saying it has almost been cunningly

drawn.

MR MANSFIELD:  Yes. Well, that was certainly the view that

Justice Olsson and Justice White took, Your Honour.

The answer, in our respectful submission, is again twofold: one is, if it be relevant that there is a

where on the material before the court there was,	possible action against a solicitor, this is a case	in effect, admitted negligence so that if that be a
relevant consideration at all, in our respectful
submission, it should have been considered by the
court and may have made a significant difference.

The second answer to Your Honour that we make

is this: because, in particular, Justice White

took the view that the period of time up to when
the limitation period expired plus 12 months was

not relevant His Honour was able to make a comment

that the fading of memories such as there was and

those more ephemeral concepts of prejudice were not

established because your only work in this case

Frankipile 23/8/90

from 1986 to 1989 and not from the time of the

accident, 1982 to 1989 - that is, a period of seven

years - there is a conflict and a direct conflict

between Justice White and Justice Bollen in the

Full Court in Willia.ms with the Chief Justice in

the Full Court in Willia.ms on that very topic and

if one takes the view, as some of the other judges

have in other jurisdictions within Australia, that

in determining whether there is prejudice the lapse

of time and the passing of memories and the

possible difficulty of finding witnesses per se can

be evidence of prejudice, then the question of

whether one goes back to the time of the cause of

action to consider those matters becomes very

significant.

BRENNAN J:  We will consider the matter further at 2.15 this

afternoon.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

BRENNAN J: Yes, Mr Mansfield.

MR MANSFIELD:  If the Court pleases, the oral submission we

would complete can be very brief. It is our

submission that there are in a number of respects

conflicts between the courts of the Full Court of

several of the States on the matter of the

relevance of a plaintiff being able to sue the
solicitor acting for that plaintiff on these

matters and Your Honours have the references to

that and, in our respectful submission, that was a

matter upon which the judges in this case

specifically directed themselves that they were not

to have regard to it and that is apparent,

especially from the judgment of Justice White.

That follows an earlier decision of the Full

Court of the Supreme Court of South Australia in

the matter of Willia.ms which is referred to. So,

in our respectful submission, that matter fairly

and squarely arises on the facts of this case and

it is a matter which is of general importance

whether a conflict is between the several courts of

Australia, which this Court ought to resolve.

Frankipile 4 23/8/90

TOOHEY J: Mr Mansfield, would it be right to say that the

weight of authority supports the instant decision

in so far as it treats the availability of an

action against a solicitor as irrelevant?

MR MANSFIELD:  That is certainly the case in the United

Kingdom, Your Honour. Within Australia, in our

respectful submission, there is no clear weight of authority. The Full Court of the Supreme Court of

South Australia has decided that it is an

irrelevant consideration. The Full Court of the

Supreme Court of New South Wales in the matter of

Stollznow has decided that it is an irrelevant

consideration. The Full Court of the Supreme Court

of Victoria in the matter of Soper decided that it

was relevant only if things were finely or

otherwise equally balanced. Mr Justice McGarvie in

McKenna's case in Victoria after Soper's case was

decided expressed in quite strong views that it was

a firmly relevant consideration and the Full Court

of the Supreme Court of Queensland in Borg - at

least two of the three judges in that case decided

that it was a relevant consideration. So there is,

in our respectful submission, not a clear

preponderance of opinion throughout Australia.

The second matter of general principle, in our

respectful submission, and also one which was

discussed in a slightly different context by the

House of Lords in Birkett is whether delay between

the cause of action arising and the issue of the

writ or it becoming stale is a relevant

consideration at all or as the majority found here the only relevant delay is that delay between when

the limitation period expired plus 12 months and
thereafter the argument or the proposition being

that because a defendant cannot be entitled

necessarily to know of proceedings until the

expiration of the limitation period plus 12 months

because a plaintiff might legitimately save his

proceedings until the last day and then serve them

again on the last day, that the period before that

time is irrelevant.

TOOHEY J: But even those decisions, or at least some of

them, seem to proceed on the basis that while the

earlier period is of itself irrelevant it may well

exacerbate delay that has occurred subsequently.

MR MANSFIELD:  Yes, that is so, Your Honour. In this

particular case, Justice White especially said that that was simply an irrelevancy and it is a conflict

which the Full Court of the Supreme Court of South

Australia in Williams has within that very

decision. On the one hand, the Chief Justice said

that it was clearly a relevant consideration to

look at the delay from the time of the cause of

Frankipile 5 23/8/90

action such as it be and, on the other hand,

Justices White and Bollen expressed the view that
Justice White expressed in this case that you only look at the delay after the expiration of the

limitation period plus 12 months and there is a

very explicit difference of view on that topic in
the judgments of the Full Court in the case of

Williams, which was the first case in the book of

authorities that we gave to the Court. Unless Your

Honours want me to, I will not point to those

particular passages.

We also submit - and, perhaps it touches on

something Your Honour Justice McHugh raised before

the adjournment, that is, on the topic of prejudice because, although, of course, the general principle

can be easily said that - and it is the principle

which ultimately our client would contend for on

appeal - that there is a discretion.	The Court
must determine what is just in all the

circumstances and without regard to any particular

exclusionary considerations or particular rules.

The way in which the Full Court here

approached the question of prejudice, in our

submission, was to say, "Well, this is what the

defendant says and positively asserts by way of

prejudice. Reading between the lines, there are an

awful lot of gaps and maybe the prejudice is not

anywhere near what the defendant asserts it to be

and, therefore, there is no prejudice."

On the other hand, a number of the other cases, and they are the cases which are mentioned

at the top of page 4 of the summary, including the

judgment of Chief Justice Bray in Ulowski, the

Full Court in Borg, the New South Wales' Court of

Appeal in Witten - that reference, I should

correct, is a reference to Chief Justice Herron and

not to Mr Justice Walsh, and another decision in

South Australia of Middleton v Geary and there is a

similar expression of views in the case of Soper by

Chief Justice Young in Victoria, take the view that	it is the possibility of prejudice which is the
relevant consideration and that possibility
increases with the passage of time and as memories
fade the possibility of witnesses not being able to
be found and such matters.

On the other hand, one can see in the judgment

of the members of the Full Court here and, in

particular, in the judgment of Justice Olsson and

Justice White, that Their Honours did not really

look so much to the possibility of prejudice but to

look to the question of saying, "Looking at what

the defendant has presented, has it proved or

produced cogent evidence that there is an actual

Frankipile 6 23/8/90

real prejudice?", and that, in our respectful

submission, is again a somewhat different question

from the question which other cases have addressed.

We do not say that is an irrelevant consideration but we do say and submit that by Their Honours'

approaching it in that way they have excluded from

consideration the possibility of prejudice by the elapse of time, by the fading of memories and the

11ke.

BRENNAN J: But they have not, have they? If one looks at

page 35, line 14, that is the precise matter that

is there referred to.

MR MANSFIELD:  If Your Honour pleases, the answer to that

questioo is that Their Honours appear to have

referred to the correct authorities but when one

looks at how Their Honours have analysed the

evidence of prejudice, both in the judgment of

Justice White and in the judgment of

Justice Olsson, the question which has ultimately

been asked has been rather more firm: has there
been evidence of actual prejudice satisfactorily

adduced? So, if one goes, for instance, to the

bottom of page 39 in the judgment of

Justice Olsson, His Honour says:

A major concern in this case is the fact

that, although there has been a good deal of

rhetoric on behalf of the respondent on the

subject of potential prejudice, it has utterly failed to demonstrate in any convincing manner

that important witnesses are irretrievably

lost to it or that the files are lost forever.

And His Honour then goes on to say that those
matters have been left open.

BRENNAN J: But, Mr Mansfield, is this not the problem: once it is conceded that actual detriment is a

relevant consideration, it is put into the balance

in coming to a decision?

MR MANSFIELD: Yes.

BRENNAN J: And, here the court has passed some comment upon

the adequacy of the affidavit which was put on in

order to establish that fact. Now, that means - or

it has two implications, does it not? One is that

whatever weight was given to the unsatisfactory

nature of the affidavit must have had some part to

play in the decision to which the court arrived and

that makes it very difficult to say that the

decision that was arrived at was in any relevant

sense a wrong decision.

Frankipile 23/8/90

The second implication is that it is a factor

which in this Court, if special leave were granted,

would have to be taken into consideration in

determining what ultimate order the Court should

make.

MR MANSFIELD:  Yes.

BRENNAN Ji So that that rather makes the case an

unsatisfactory vehicle for considering the

questions of principle which you seek to agitate.

MR MANSFIELD:  In our respectful submission, Your Honour,

that is not so and perhaps I can answer Your

Honour's question by asking you to look at the

judgment of Justice White at the bottom of page 16K

where His Honour, having pointed out, as

Justice Olsson did, the lack of - on the top of the prejudice, the gaps as it were in what was

presented.

BRENNAN J: What page is this, Mr Mansfield?

MR-MANSFIELD:  Page 16K, about line 55:

What weighs heavily against the plaintiff

is the long delay. But this was far

outweighed, in my opinion, by the hardship

likely to be caused to the plaintiff if the

action is dismissed altogether. There are no

countervailing factors of prejudice other than

(i) the inherent probability that the memories

of witnesses will be fainter than in 1985-86

(at which time no complaint could have been

made about faint memory) and (ii) the

inconvenience of litigating after so long -

Now, our respectful submission, Your Honour, is

that within that short passage can be seen that the

matters of principle which we seek to ventilate are

critical to the outcome because if the first point

that we seek to ventilate, that is the relevance of	the solicitor's negligence in an action against the	solicitor, is established then the hardship to the
plaintiff by the action being dismissed very
substantially, if not totally, dissipates and the scale goes completely the other way.

If the second point we seek to ventilate as a

matter of principle is correct then the comment
that Justice White makes and the weight which

Justice White places on the fading of memories also

becomes quite a different consideration because, as
we have put, Justice White, and it appears

Justice Olssen also, said you can only complain about the extent to which memories have faded from

the expiration of the limitation periods plus 12

Frankipile 23/8/90

months and not to look at overall the course of the

conduct of the proceeding or the delay in the
conduct of the proceeding from the cause of action

so that that particular date, 1985-86, at the top

of page 16L is a rather later date, then, as a

matter of principle, we say, was relevant, was the

proper date to consider that and, in our respectful submission, those cases at the top of page 3 of the

summary have all taken that possibility and looked

at it from the longer term.

BRENNAN J: But let it be assumed that all your arguments on

matters of principle are upheld. At the end of the

day the Court has to decide for itself in which way

should the discretion be exercised. Would it not then have to 1;.ake into account the detriment that is displayed in the affidavit which has been the

subject of criticism?

MR MANSFIELD:  Yes, Your Honour.

BRENNAN J: Well, now, why should this Court assume that

function in a case where the affidavit put on by the defendant is in an unsatisfactory condition?

MR MANSFIELD:  Because this Court, in our respectful

submission, would go no further than or take the

same step as the supreme court and say, "Well,

look, there have been left an awful lot of gaps;

therefore, you have not proved that a particular witness is unavailable or that a particular file

has been destroyed so you have not in that sense

proved positive" - or, for instance, that a witness

is dead or whatever - "you have not proved positive

prejudice" and that is a finding which has been

made but, on the other hand, this Court can

equally, accepting that fact, apply the matters of

principle to the other considerations and, apart

from the two that I had already mentioned, that is

going back to the proper time and considering the

solicitor's negligence, there is also in our

respectful submission, even accepting the affidavit

with the criticisms that the court made of it,

there is evidence which the judges accepted and it

was not contested evidence, that this particular

defendant had closed its South Australian office;

it had packed its papers, such papers as it had

within its own possession had, in the course of the
move, gone somewhere and were no longer able to be

found and there are passages in the cases that are

referred to at the top of page 3 of the summary

which say that.

The fact that papers are missing of itself

gives rise to the possibility of prejudice and it

is the risk of, or the possibility of prejudice as

a matter of principle which we say must be had

Frankipile 9 23/8/90

regard to as well as, if it be proved, real

evidence of actual prejudice so that, in our

respectful submission, if this Court were to grant

leave that particular problem that Your Honour

raises with me, in our submission, would not be a

problem. The Court would work from the same

proposition as the Full Court. The evidence
presented of real actual prejudice is not
acceptable or, is not accepted, but that does not
affect, in our submission, the consideration of the
matters of principle or accepting that state of

evidence, assessing the matter overall with the

other matters of principle which we contend for.

BRENNAN J: That leaves it on the situation of a theoretical

- you would call it a matter of principle -

disadvantage to a defendant in litigating after

such a delay, no practical detriment being shown;

and in a case where the discretion has to be

exercised, even if the theoretical prejudice be of

the kind that the court may presume to exist, it is

certainly not a very heavy weight to put in the

balancing scale.

MR MANSFIELD:	In our respectful submission, Your Honour, where there is - if the first point that we contend
for is right - no real prejudice to the plaintiff
and, on the other hand, there is this, what
Your Honour calls, theoretical prejudice, that
would be something which the Court would put into
the balancing scale particularly because ultimately
if leave is granted and we are able to argue the matter, one of the contentions which would be put, of course, is the public interest in bringing litigant~ to pursue proceedings vigorously and the.
like and that, itself, is another consideration so that, in our submission, that judgment could be
made.

In the matter of Ulowski where

Chief Justice Bray discussed the principles generally - I am sure the Court has not read it

recently and does not remember it but at the very

end of His Honour's judgment where His Honour in a

judgment which other members of the court concurred

with discussed the possibility of prejudice by

delay and so on, the court did not in that case

strike out the proceedings but His Honour said even

slight evidence of prejudice - and theoretical

prejudice in Your Honour's terms - would be

sufficient given other things being equal so that,

in our respectful submission, this Court could

entertain an appeal and reach an appropriate

judgment without going into the detail that Your

Honour has put to me.

BRENNAN J: Yes.

Frankipile 10 23/8/90

TOOHEY J:  Mr Mansfield, if the availability of an action in

negligence against the plaintiff's solicitor is

available, and assume the existence of a compulsory

indemnity scheme and no problems in recovery, can

there ever be prejudice on the plaintiff's part to

be brought into the scales when this balancing

exercise is carried out? What is it that would

then be left to weigh against the argument of a

defendant that he has been prejudiced by the delay?

MR MANSFIELD: Well, Your Honour, there may be cases where

the cause of action against the solicitor is rather

less clear than here where the solicitor's

affidavit effectively acknowledges the point.

There may be cases where the amount of the claim is

demonstrated to be considerably i~ excess of the

amount of the compulsory insurance and matters such

as that.

TOOHEY J: Yes. I was rather assuming a clear cut case in

which recovery would not be limited by any such

considerations.

MR MANSFIELD:	Yes.
TOOHEY J:	I just wonder what this balancing exercise, then, involves?

MR MANSFIELD: Well, Your Honour, I think the answer to that

is that it cannot be answered well because it

depends upon the facts of each case and our concern

here is to have the principles spelled out clearly

for this State and, indeed, for the Australian

courts so that that balancing exercise can be

properly done. It will be a question in each case·

of whatever considerations are relevant but

including possible prejudice to the plaintiff, the

reason for the delay, the conduct of the defendant,

the possible prejudice to the defendant and such

matters and I cannot really answer Your Honour

explicitly because it will depend on the facts in

each case, once the principles are laid down. If

the Court pleases, I think that is as much as we

put on the application.

BRENNAN J: Yes. Mr Robertson, the Court would like you to

confine your submissions to the question of whether

there is any relevant conflict in the authorities

which this Court ought to consider on the question

of the liability of a solicitor to the plaintiff

who has been out of time.

MR ROBERTSON:  Yes, Your Honour. As far as this

South Australian Full Court is concerned, in

Williams' case, which is the case upon which

Justice White and Justice Olsson founded their judgments in the case at bar, each of the justices

Frankipile 11 23/8/90

agreed that it was an irrelevant consideration and

Justice White took up that point, of course, in the

case at bar. The Full Court followed a line of authority in the United Kingdom commencing with

Birkett v James in the House of Lords to that

effect.

As far as the Australian courts are concerned, as my learned friend has pointed out,

Mr Justice McGarvie, in McKenna's case, did indicate that it was a relevant consideration - I

think it was a Full Court decision. He was one of the justices of that court. In the case of Soper,

which is a Victorian Full Court decision,

Chief Justice Young followed the same line as that
followed by the South Australian Supreme Court in

Williams' case, that is, it was an irrelevant

consideration. At least one of the judges in that

case - I think it was Justice Lush and possibly the

other as well, I cannot be absolutely certain -

took the view that it was relevant, but only in a

minor fashion. In other words not much weight was

to be placed on it and if, in fact, there was an

evenly balanced position, then that point may be
put into the scales and tipped in favour of the

defendant against the plaintiff.

Now, I have not had the opportunity of looking

closely at Borg's case which my learned friend

referred you to. I did not understand Borg's case

though to follow a different line than the

South Australian Supreme Court. Looking at the

factual matter that was discussed in Borg's case,

if I could invite the Court's attention to page 260

of my learned friend's book of documents,

Justice W.B. Campbell did make the comment

factually in that case that - page 260 between

letters C and D, His Honour comments:

On the material before us it seems that

it was the conduct of the plaintiff himself

which caused the delay. The solicitor who had

did not personally see the plaintiff between	the conduct of the action has stated that he
the end of the year 1968 and September 24,
1971 and that, as a result of his letters to
the plaintiff remaining unanswered, he formed the opinion that the plaintiff had abandoned the action.

Now, I had a brief look at Borg's case in the

luncheon adjournment. I cannot assist the Court in

saying that it categorically took a different line

to the South Australian Supreme Court in Williams'

case. Those particular authorities that I have

referred the Court to are the only ones that I am

aware of that have raised this issue of the

Frankipile 12 23/8/90

alternative action against the plaintiff's

solicitors. So I have to confess that there is

some divergence of opinion, certainly not in the

South Australian Supreme Court.

TOOHEY J:  Well, as you explain it, if I caught what you

said correctly, the divergence really derives only

from what Mr Justice McGarvie said in the Victorian

case, is that right?

MR ROBERTSON:  If you line them up directly against each

other, Your Honour, that is precisely correct.

The comments in the case of Soper were that it was

of - Chief Justice Young certainly supported the

proposition that is expressed by our Full Court

here in Williams. At least Justice Lush, and I am

not sure about the other - - -

TOOHEY J:	Yes, I am sorry - I overlooked that.
MR ROBERTSON:	They said, "Put it in the scales but only as

a sort of a final matter to give consideration to

if all things are balanced equally", and the view

that was taken was that it ought not have much

weight in the balancing of it.	Now, that is as far
as I can assist the Court.	Does the Court wish me

to address them on any other topic?

BRENNAN J:  Is there anything you wish to say about the

suitability of the case?

MR ROBERTSON:  That is precisely the point that we make

here and it has already been raised by Your Honour

Justice Brennan and by His Honour Justice McHugh

that this, in our respectful submission, is not a

case suitable for determining this particular

issue. The real nub of this case was a case really

based on the facts and the majority of the court

here was highly critical of the facts or, in fact,

the omission of facts which appeared from the

affidavits.

The relevance of the affidavits was, as far as

the Full Court was concerned, the majority, was

what it omitted to say, not what it did say, and
what they concluded was that on the evidentiary

onus that was upon them to disclose a detriment,

that in fact that evidentiary onus had not been

discharged.

TOOHEY J:  Is that a correct description of the majority or

only a correct description of what

Mr Justice Olsson said?

MR ROBERTSON:  No, that is a correct description of the

majority. Both Justice White and Justice Olsson

were highly critical of the material put before

Frankipile 13 23/8/90

them on the basis of omission, and could I take

Your Honour to - - -

TOOHEY J:  I recall Justice Olsson speaking of an

evidentiary onus. I did not recall Justice White

using that particular language.

McHUGH J:  Page 16K, about point 7:

Frankipile's affidavit as to prejudice is more

remarkable for what it omits than for what it

says about prejudice.

MR ROBERTSON:  Yes, thank you, Your Honour, and, of course,

His Honour Justice White, at page 16 I, does

address the issue of the absence of material in the

affidavits in more detail and if I could invite

the Court's attention to the passage starting at

line 10, His Honour says:

On the face of it, the prejudice caused

to Frankipile appears to be most substantial.

I have set out above the apparent inability to

locate former records or former employees as

witnesses and the long-held belief that

further litigation was at an end. However, a

closer look at the alleged prejudice deposed

to by Frankipile is more apparent than real.

Olsson J. sets out in his reasons the gaps in

Frankipile's affidavit of alleged prejudice.

He points out that the affidavit fails to say

whether a search for documents was made at the

offices of the two insurance companies

insuring Frnakipile against workers

compensation claims in January 1982 -

I will not take the Court right through this, but

he analyses in detail the absence of material and

we would submit that by implication, if not by

expression, he was agreeing with Justice Olsson's

criticisms of that, and he goes further with one

where he indicates in parentheses:	final criticism right at the very foot of his judgment, if I could take the Court to page 16K,	(I should add that I have not overlooked the
fact that the second Master -

that is the master whose decision was the subject

of the appeal -

invited Frankipile to tell him more about the

non-availability of witnesses but Frankipile's

solicitors had not responded to that

invitation by the time he gave judgment in

Frankipile's favour in any event. No attempt

was made on the appeal to introduce any

Frankipile 14 23/8/90

further evidence which might have been put

before the Master.)

So, not only is he critical - that is

Justice White - of the omissions that were in the affidavit material, but he also criticized the fact that there was an opportunity to overcome a problem

because the master had given the opportunity to the

defendant in this action to produce some

information to say that there were not witnesses

available, and that was not availed of, and there

is Justice White further making the point and being

critical of the evidence produced.

What the two justices were saying is that, in

effect, the affidavits ll7ere prepared in - if I

could use a vernacular fashion - a rather cute

manner. So we say that this is not an appropriate

vehicle. It is not a position where you have an

evenly balanced situation between plaintiff and

defendant and the issue of availability of an

alternative action is something that could finally

tip the scales one way or the other. In those circumstances, maybe then it would be a proper

vehicle for this High Court to give consideration

to that point but, in our respectful submission,

because of the overwhelming criticisms of the

affidavit material and the final decision that the

evidentiary onus had not been discharged, that this

would not be an appropriate vehicle.

We take up the point that His Honour

Justice Brennan took up; if the matter did go up

to the High Court, what sort of orders could be

made here? Would it be an order quashing the

decision and therefore that the renewal of the writ

was not to be made, or is it more appropriate

because the High Court would not have the affidavit

material that was there - if the High Court said,

"Look, one of the indicia that you need to deal

with in weighing up the discretion is the

alternative claim against the solicitors, and that

was not dealt with here" - should the matter then

be sent back to the Full Court to give further

consideration to that matter on the basis of that

extra indicia with all of the affidavit material

still in the same position as it was?

In our respectful submission, if that was the

case, the decision would still come about in the

same manner as it has before the Full Court and, of

course, that would involve further delay and that

particular point, the question of determining what

order would be made as a result of it, in our

respectful submission, points up and magnifies the

position that we take here that this is not an

appropriate vehicle. Unless the Court wants to

Frankipile 15 23/8/90

hear me on any other matters, they are our

submissions.

BRENNAN J:	Thank you, Mr Robertson.	Mr Mansfield.
MR MANSFIELD:	If the Court pleases.	Your Honour

Justice Toohey asked my friend about Borg's case

and he answered in a sort of non-specific way.

Borg's case is No 5 in the book of cases and in the

judgment of Mr Justice W.B. Campbell at page 259,

in our respectful submission, His Honour does adopt

with approval what Lord Justice Salmon said in

Allen's case, that the existence of an action

against a solicitor is a relevant consideration.

Just below letter Eon page 259 His Honour says he

has:

been troubled by reason of the fact that he

may be left without a remedy against both the

defendant and his own solicitors and whether

this would justify the exercise of the

discretion in his favour made by the learned

trial judge. However, I think that the

approach expressed in the following passage

from the judgment of Salmon L.J. in Allen

disposes of the problem -

and that particular passage is that which contains,

five lines from the bottom:

When, however, the solicitor or his insurers

are good for the damages, the plaintiff is

unlikely to be seriously prejudiced by

dismissal of the action. He will probably

recover from his solicitor in an action for
negligence all the costs thrown away, in

addition to the damages he would have

recovered against the defendant.

One can see, if one goes back to page 254 of that

report at letter D that Mr Justice Hoare agreed

with those reasons, and Mr Justice Hart, the other

judge in the Full Court, delivered separate reasons

and did not comment on that aspect. So, in our

submission, Borg's case does represent a Full Court

of Queensland putting the proposition which we say,

as a matter of principle, this Court should

determine. If the Court pleases.

BRENNAN J:  Having regard to the terms of the defendant's

affidavit which attracted criticism in the

Full Court, and the concession as to the application of the principles expressed by

Chief Justice Bray in Ulowski v Miller, this is not

a case which would permit this Court on appeal to

conclude, on an application of the true principles

Frankipile 16 23/8/90

of law, that the decision reached by the Full Court

was erroneous.

It is, therefore, not a suitable vehicle for resolving any issue as to the factors which ought to be taken into account in exercising the

discretion to extend time. Accordingly, special

leave will be refused.

MR ROBERTSON:	If the Court pleases, we apply for costs.
MR MANSFIELD:	We make no submission.
BRENNAN J:	It will be refused with costs.

AT 2.52 PM THE MATTER WAS ADJOURNED SINE DIE

Frankipile 17 23/8/90