Gerlach v Clifton Bricks

[2001] HCATrans 26

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S113 of 2000

B e t w e e n -

ARMIN HERBERT GERLACH

Applicant

and

CLIFTON BRICKS PTY LIMITED

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 FEBRUARY 2001, AT 2.45 PM

Copyright in the High Court of Australia

MR J.McC. IRELAND, QC:   May it please the Court, I appear with my learned friend, MR J.F. BURN, on behalf of the applicant.  (instructed by Gary Robb & Associates)

MR A.R. ASHBURNER:   May it please the Court, I appear for the respondent.  (instructed by Hunt & Hunt)

GAUDRON J:   Yes, Mr Ireland.

MR IRELAND:   This case raises an issue concerning the course taken by the Court of Appeal in reversing a single judge’s discretion to dispense with a jury.  The matter came to trial in the District Court eventually after commencing in the Supreme Court in 1998.  Shortly before that trial an application had been made to dispense with the jury to another judge.  The matter proceeded with the jury having been dispensed with to a trial where the applicant was awarded damages in the sum of $390,000.

The respondent appealed to the Court of Appeal on all grounds, including one ground that the interlocutory decision of the first judge had miscarried.  Fundamental to that view was the Court of Appeal’s application of the decision in Pambula Public Hospital v Herriman, a decision of the Court of Appeal in 1988 in which your Honour Justice Kirby presided.

The Court of Appeal held, in the application of that principle, that there should not be allowed to infect the discretionary decision to dispense with a jury any consideration which was, as it was put, universal to jury trials.  The Court of Appeal held in the present case that there had been such an infection of the decision of the first judge, that the decision had miscarried and upon its own examinations of the reasons lying behind the application to dispense with the jury, the Court of Appeal set aside the whole of the effect of the trial, the damages award, and remitted the matter for trial on all grounds, including liability, notwithstanding the fact that in the Court of Appeal submissions, which the Court of Appeal itself did not need to reach, the respondent had abandoned any challenge on the liability ground.

Your Honours, the point which is sought to be agitated here on special leave has two aspects:  the first aspect is that in applying, as the Court of Appeal has consistently applied, the decision in Pambula Public Hospital as encrusting the discretion under section 79A of the District Court Act as a basis for dispensing with a jury, the court has carried through, not without some dissent along the way I should say, a principle which is wrong headed, and that that fettered ‑ ‑ ‑

KIRBY J:   “Wrong headed” is a little unkind.  Could you not put that a little more subtle?

MR IRELAND:   Perhaps I should have stepped back a little and said, at least susceptible of a submission that it is heresy, the consequence being that ‑ ‑ ‑

GAUDRON J:   But you did not ask the Court of Appeal to reconsider Pambula, did you?

MR IRELAND:   That is true.

GAUDRON J:   Now, is that not something of an obstacle for you in this case?

MR IRELAND:   Not really, with respect, your Honour, because it is clear from all of the decisions that we have seen – and Justice Handley gave the leading judgment of the Court of Appeal – that his Honour and that court felt compelled to follow that principle, which had been not only announced in Pambula itself, but also carried through in intermediate decisions, including your Honour Justice Kirby’s subsequent participation in the decision of Forbes.

KIRBY J:   You say that the “may” is just a complete discretion.  The principle in Pambula was it appears in a context of jury trial and, therefore, it must have some basis other than the fact that jury trial can sometimes be inconvenient or lead to difficulties.

MR IRELAND:   Yes.  The contesting positions, as it were, if I may say so in the result in Pambula, Justice Mahoney being in the minority in that case, was that one could not apply the infection principle.  There might be matters which are actually common to cases which could contribute to a valid discretionary conclusion.  In other words, one could not apply the principle that matters could be ruled out, a priori, as contributing to the discretionary exercise of power to dispense with a jury, because if that principle were applied, what would happen is what happened in the present case, there would be, as I have said, an infection of the exercise of the discretion and unlock the matter under the House v The King principles for a Court of Appeal to reconsider the matter.

McHUGH J:   What can be said is that when Pambula was given in 1988 the Court of Appeal did not have the benefit of this Court’s subsequent decision in Knight v FP Special Assets, where we emphasised that when a power is given to a court the power should be construed in accordance with ordinary principle and the words should be given their full meaning unless there is something in the context to indicate to the contrary and the Court of Appeal in Pambula did not have the advantage of that ‑ ‑ ‑

MR IRELAND:   That is so.

McHUGH J:    ‑ ‑ ‑and we reapplied that in that case about parks from the Northern Territory.

MR IRELAND:   Yes, and perhaps even more to the point, your Honour, that principle was reaffirmed by this Court in Patton in 1993, which is, of course, intermediate to the decisions of the Court of Appeal in Pambula and in Forbes.  Your Honour said ‑ ‑ ‑

GAUDRON J:   If special leave were granted, however, and the appeal was successful, there would still be a question outstanding for determination by the Court of Appeal as to whether the discretion was properly exercised.  So there might still be ‑ ‑ ‑

MR IRELAND:   There might still be, potentially.

GAUDRON J:   Yes, and there would still be an appeal about quantum.

MR IRELAND:   There would be an undetermined pending appeal about quantum which the Court of Appeal did not reach in the view they took of the matter.

KIRBY J:   The outcome is certainly a very, very inconvenient outcome in that you have had a trial ‑ ‑ ‑

MR IRELAND:   With a judge.

KIRBY J:    ‑ ‑ ‑a full trial which was, subject to the argument about quantum, perfectly satisfactory, except that the argument of the other side is that the defendant, which has summoned a jury, has lost that jury and that that is regarded as quite a significant forensic entitlement and legal entitlement.

MR IRELAND:   Yes.  Well, that is the strength on the other side, that that is a fundamental plinth, and almost a constitutional right, which has been taken away by, as they would say, words that are not planned to do so.

KIRBY J:   Two questions:  first of all, Justice Mahoney dissented, but I do not remember the case.  In the headnote it says that his Honour held that the court could not exercise the discretion on its own initiative.  Is that the point of difference or did he disagree with the ‑ ‑ ‑

McHUGH J:   No, he also said, did he not, at page 419, that:

It is not appropriate under s 89 for a general ruling to be given that all cases are to be tried with or without a jury. The power given by s 89 is, in my opinion, to be exercised in a particular case and by reference to the circumstances which are, in the sense to which I have referred, relevant to that case.

MR IRELAND:   And a little above that at D:

It would, I think, be wrong to say of any of the factors that it could never be relevant.

Which was the point I was making earlier about things are excluded from consideration on the majorities view in Pambula.

The strength of the Patton point, if I can say that, is that your Honour Justice McHugh said at page 28 of the report, of this very section and after Pambula:

No justification exists for fettering the grant of a curial power which is expressed in unconditional terms and which was intended by Parliament to confer “a broad discretion to dispense with civil juries where that would be in the interests of justice”.

KIRBY J:   The question of fettering is a label which I think the majority in Pambula might not agree with.  They would say that it is simply defining when it can apply.  It cannot apply in respect of considerations which are general to jury trial, because the posited assumption of the Act is that you have got a jury trial with certain disadvantages, but you have just got to live with those, but if you can find something over and above those, that is the theory behind Pambula.

MR IRELAND:   Yes.

KIRBY J:   But it is true that since Pambula there are decisions of this Court which have laid emphasis upon the donee of power, that is to say, being a Court and, I suppose, that is a consideration.  But what about the consideration on the other side, that sometimes when Justice Callinan is not sitting is mentioned, namely, that this is just a State Act on a State provision, State practice, this should just be left to a State court?

MR IRELAND:   The answer to that is that this Court gave special leave in Patton on this section.

KIRBY J:   Well, two wrongs do not make a right, necessarily.

MR IRELAND:   No, the first was not wrong; it was right.  So you have had a look at this section in the context of whether or not the jury could be dispensed with halfway through the trial and the judge go on to hear the case and determine it and it was in that ‑ ‑ ‑

McHUGH J:   Well, I suppose you can rely or you seem to rely on the miscarriage of justice in the particular circumstances of this case.

MR IRELAND:   I am coming to that.  That is the other branch to our argument.  I mean, this is a catastrophic case for my client.  He had a trial and he had a verdict, 15 years later he has been sent back to square one with a burden of a costs order of a three‑day trial where ‑ ‑ ‑

KIRBY J:   But that is because, at the very last minute, on the day before – two working days before the trial, you want to deprive a party of the constitutional right to jury trial.

MR IRELAND:   Yes, and we convinced the judge in his discretion to do it and the question is whether that discretion miscarried.

GAUDRON J:   The matter was listed for trial already at that stage?

MR IRELAND:   On a Friday.

KIRBY J:   This was on the Tuesday.

MR IRELAND:   The application was on the Friday and the Tuesday following the trial began before another judge.

McHUGH J:   The order was made on 15 May and the trial began on 18 May.

MR IRELAND:   Yes, on the Tuesday.

KIRBY J:   We are not completely blind of the fact that defendants think they do better from juries.  Was liability an issue at the trial?

MR IRELAND:   Yes.

KIRBY J:   And there was a question of lying, was there not, on the part of your client?  Was there not a question that your client had given some false evidence of ‑ ‑ ‑

McHUGH J:   Previous convictions ‑ ‑ ‑

MR IRELAND:   No.  There was a question of a previous criminal conviction, which was one of the matters we put up to the judge and he said, “I am not acting on that”.

KIRBY J:   These things tend to come out in the trial and these things tend to advantage defendants and the defendant wanted that mode of trial, had it, until the Friday before, and then at the last minute you come along and make this application.

MR IRELAND:   A late application, but a well‑based one, and the question ‑ ‑ ‑

KIRBY J:   All because you wanted a witness from interstate and you wanted to have oral evidence and ‑ ‑ ‑

MR IRELAND:   And the Court of Appeal held that was a run‑of‑the‑mill reason really, nothing very special there, but it approached the matter on a Pambula basis, which, if I am right in my submission, miscarried its approach to the judge’s discretion.

GAUDRON J:   Well, your submission would go so far as to say that the only relevant criterion is the interests of justice of the particular case.

MR IRELAND:   Yes.

KIRBY J:   But your submission would also mean that it is not necessarily the end of the road for your client.  It has to go back to the Court of Appeal for further consideration in the light of a successful appeal to this Court, whereas the alternative course is just go back to square one, but the defendant has the jury that it sought unless you can find some basis within the authority in New South Wales to dispense with a jury, and not two days before the trial.

MR IRELAND:   No, if this application succeeds and this Court decides that the Court of Appeal interfered wrongly with the discretion of the judge who dispensed with the jury, the matter would go back to the Court of Appeal, in other words, that that was soundly based that discretion, the matter would go back to the Court of Appeal for any argument remaining on damages.

McHUGH J:   No, but it would go back to the Court of Appeal to re‑exercise the discretion.  You had a pretty weak old case, it seems to me, even on the most benevolent view of the section.  After all, all that you are relying on was that you wish to call Dr White, who resided either in Canberra or Melbourne, and you had a number of lay witnesses, one from

Queanbeyan, one from Nowra, one from Maryborough and there might have been – yes, I think one from Maryborough.

MR IRELAND:   Yes, that is so.

KIRBY J:   But on the other hand you make a point that this is a matter of general significance to practice in New South Wales and it affects not just your case, but unless corrected, Pambula will continue to reign.

MR IRELAND:   And it reigned again on 30 October in the Court of Appeal.  That is the fourth decision in our bundle, in Combined Excavations v Bowis, where a Court of Appeal constituted by the Chief Justice of New South Wales, Justice Heydon and Acting Justice Davies split on the facts of whether this encrustation principle had infected the exercise of discretion.

KIRBY J:   “Encrustation” and “infection” are words that are deeply coloured.

GAUDRON J:   What was the outcome in Combined Excavations?

MR IRELAND:   By a majority a new trial was ordered.

McHUGH J:   Justice Heydon dissented, did he?

MR IRELAND:   He did, on the facts though.

GAUDRON J:   And the Pambula principle was upheld, was it?

MR IRELAND:   Yes.

KIRBY J:   Well, unless disturbed by this Court, the Pambula principle will continue to apply in New South Wales.

MR IRELAND:   Yes.  What your Honour started in 1988 has got a stranglehold on the court in New South Wales.

KIRBY J:   That is the third coloured phrase that you have used.  You seem to specialise in it.

GAUDRON J:   Yes, I think we need not trouble you further, Mr Ireland.  Mr Ashburner.

MR ASHBURNER:   Your Honours, I have reduced to writing the matters arising out of my learned friend’s supplementary submissions and there is a difference between us as to the meaning of the rules and, in view of that, I respectfully seek leave to file them.  The rules appear actually to require one to have leave before filing them.  My learned friend takes a different view of it.

GAUDRON J:   You will have that leave, if you need it.

KIRBY J:   It is a rather unfortunate result, is it not?  I mean, after, let it be assumed a perfect trial before Acting District Court Judge Morrison, you then have to go back and reconsider the whole matter just because you lost a jury.  What is so important about that?

MR ASHBURNER:   Your Honour, the importance of the right to jury trial has been traditionally recognised and, in my respectful submission, your Honour, as a member of the majority in Pambula, was quite right in interpreting the discretion given by the section in the District Court Act as not being applicable in the ordinary general run of cases or universally.

KIRBY J:   Give an example of something that you could take into account in the exercise of that particular discretion that is over and above the generality of jury trial and its occasional inconvenience.

MR ASHBURNER:   Your Honour, can I come at it first negatively and then positively.  Negatively, your Honour, it could never encompass something such as put forward here, speed and efficiency, due to a possible ability without a jury simply to read the medical report without cross‑examination and speed and efficiency because it may have speeded the whole thing up, abbreviated the addresses, saved the need of a summing up.  Such factors can never have ‑ ‑ ‑

McHUGH J:   But why?  I mean, look at the terms of the section:

In any action, the court may order, despite sections 77, 78 and 79 that all or any questions of fact be tried without a jury.

Now, they are words of great width.  The court is given a general discretion and then you want to say, “Well, you cannot rely on certain matters”.  Where do you get that from?

MR ASHBURNER:   Your Honour, you get it from two separate sources, either one of which is sufficient.  The first is the source relied upon by the majority in Pambula in the Court of Appeal, which is that the legislation is at pains not to abolish the jury trial generally, but to retain it.

McHUGH J:   Well, that seems to be completely neutral.  The section itself operates on that basis that jury trials are going to continue.

MR ASHBURNER:   Well, in my respectful submission, the majority’s reasoning is convincing and clearly right and I can put it no better or more forcefully than they have in that judgment.  The second reason, your Honour, is this – and I would seek to deal with it shortly in paragraph 8 of my outline, and it is this, your Honour, that it has long been recognised in this Court, going back to 1910 and earlier, that there will ordinarily be a presumption against legislation interfering with rights unless there be clear language.  It goes back to Sargood and it has been repeatedly applied in this Court up to and including Puntoriero v Water Administration Corporation in 1999.

KIRBY J:   Where did that expression come, and I know – I read it the other day it was Justice Isaacs talked of ‑ ‑ ‑

McHUGH J:    Justice O’Connor, is it ‑ ‑ ‑

KIRBY J:   It was even before Isaacs – calling it a constitutional right.  Is that in the context of English constitutional law, is it?

MR ASHBURNER:   No, your Honour.  It is not referring to constitutional rights, but any rights whether they be common law ‑ ‑ ‑

KIRBY J:   No, but it is very common.  It was in Hocking v Bell and in lots of cases in this Court, the right to jury trial.  It was called a constitutional right.  Well, they cannot be referring to section 80.  They must be referring to old English constitutional law.

MR ASHBURNER:   I think it is used, your Honour, in the sense that it is used in English Law of Dicey, the customary approach to English constitutional law where everyone had a right to trial by their peers, a right which was not confined to criminal law, but extended to civil law as well.  The Sargood approach is applicable to any kind of right and it is important, your Honour, that in Tassell v Hayes in this Court – and if I might have leave to hand up some photocopies of that.

McHUGH J:   But the basis of the rule – I mean, in Bropho we mentioned that rule.  If the foundation of rules go, then so does the presumption goes with it, and in those early High Court cases – so it is in the most degree unlikely that the legislature would want to overturn rights, et cetera.  That might have been a relevant attitude in the Edwardian Age, but these days Parliament, every session is interfering with rights.

MR ASHBURNER:   But, your Honour, the ordinary presumption, and one which remains authoritatively established by decisions of this Court, is that it is only to be done by clear language and in the application ‑ ‑ ‑

McHUGH J:   Well, I know they say that, but I mean every day Parliament passes laws.  They take away somebody’s rights.  It does not have to be done in clear language.  No doubt there are some fundamental rights the common law will protect and you will want very clear language to take them away, and maybe this is one of them, but I am not sure that that principle has got the efficacy that it once had.  It seems more of a fiction these days.

GAUDRON J:   And, in any event, is the language not clear?

MR ASHBURNER:   In my respectful submission, not, given that the language does not abolish the right in any general way.

McHUGH J:   Well, it does not seek to.  It gives a judge a power to dispense with a jury.  Now, whatever else you say about the section, one thing is clear, it does take away the right to jury trial in some circumstances, but you want to go further and you want to put a gloss on it and you want to say, “Well, you can only take it away in circumstances other than A and B”.  Why should you read that into the section?  The words are not there.

MR ASHBURNER:   Your Honour, for two separate reasons:  one, that to read it otherwise is to, as it were, abolish the right to jury trial as a right in a way which is of general application to virtually any civil jury trial ‑ ‑ ‑

McHUGH J:   No, the other way of looking at it, Mr Ashburner, is that it gives to the court a discretion to examine all the circumstances of the case, including the parties right to a jury, and to weigh that against all the circumstances and to make a value judgment as to whether the administration of justice is best served by having a trial of one or more issues of fact without a jury.  Why can you not say that is its natural and ordinary meaning?

MR ASHBURNER:   For the reasons put by a majority of the Full Court and I really cannot put it better than their Honours have, your Honour, and I would be wasting time to seek to do so.

KIRBY J:   You would have to concede that this is a matter that would come up quite often, when late applications are made before trial judges of the Supreme Court or District Court to dispense with juries.

MR ASHBURNER:   Well, of course, it is a civil jury outside of the area of defamation and is somewhat exceptional in New South Wales.

KIRBY J:   But it is unlikely that whilst Pambula reigns that anything will happen in the Supreme Court or in the District Court.  The District Court must obey the decision and the Court of Appeal seems to just accept it and not re-examine it, which is entirely appropriate on one view.

MR ASHBURNER:   Well, the Court of Appeal will, of course, accept and apply it unless and until somebody seeks leave to challenge it.  The Court of Appeal has ample power to reconsider its decisions if somebody wishes to contend they are wrong.  It is notable that there was no endeavour whatever to try and do that here.

KIRBY J:   Now, you have so far concentrated on, as the Court has been directing the argument, the question of Pambula and whether it should be reconsidered in this Court, but are there any aspects particular to this case?  One matter that caught my eye was the application of Stead.At least it seemed to me that one could say in such a case that Stead does not apply, because you cannot say that the decision by Acting District Court Judge Morrison would have been necessarily different from a decision of a jury.  Now, do you want to say anything about the particular case, whether this is an appropriate vehicle to examine the Pambula decision?

MR ASHBURNER:   Indeed I do, your Honour.  Before I do so, can I just complete the second aspect of the answer I was giving earlier, and that was based on Tassell v Hayes, where, in relation to this very matter, a right to trial by jury, admittedly in a criminal case, but that is a point without any relevant distinction, in my submission, a majority of this Court, Justices Mason, Wilson and Dawson, applying the Sargood approach and that line of authority, specifically held that that was a right which ought not to be diminished save by language which is reasonably capable of no other construction.  So that is the second limb to it.  In my respectful submission, it was good law still in 1987 and it remains so right up to the present.  The approach taken based on Sargood was applied, for example, in Puntoriero’s Case in 1999 in this Court.

Can I come then to the other aspects of it.  In my respectful submission, this is not a case where there is a sufficient prospect of success to warrant the grant of leave; second ‑ ‑ ‑

McHUGH J:   Well, just on that particular point, what about the reference to Stead?  I mean, Justice Handley referred to Stead, but, with respect, the reference to Stead is a little curious, is it not, because in Stead the Court accepted that it would not have made any difference, but this is a case of a wrong decision-maker.  What has Stead got to do with this case?

MR ASHBURNER:   It is perhaps a loose analogy but, in my respectful submission, the approach his Honour took is absolutely correct.  If the defendant has, as we submit he had, a right to a trial by jury, then he has not had the benefit of a trial in accordance with law.

KIRBY J:   Why could not the Court of Appeal said, well, there has been, according to Pambula principles, a miscarriage, but that it does not lead anywhere, because in the circumstances a full trial on the merits by a judicial officer was had and the result should be considered within its own four walls and that you have got to show something more once it has gone beyond that step and you have had the trial.  You have got to show that some injustice has occurred.

MR ASHBURNER:   In my respectful submission, there would be a very large element of stark unreality about that.  In the real world it is no coincidence that for many years now it has been defendants who have been seeking to summon juries, not plaintiffs.

KIRBY J:   It used to be different when you and I were younger, Mr Ashburner.  It used to be exactly the opposite.

MR ASHBURNER:   Of course.

McHUGH J:   I think Justice Kirby is speaking for himself when he talks about ‑ ‑ ‑

MR ASHBURNER:   But it is the reality.  The view is generally held amongst insurers and those concerned with defendants’ litigation, that jurors are, in the main, very much less generous than our judges.

KIRBY J:   That is not what I read on the front page of “The Sydney Morning Herald” this morning.

MR ASHBURNER:   It is interesting and one can readily enough see the difference where there is no impact on insurance premiums and where strong views are held about the conduct of the organisation involved.  It is not in every case, but it is in the great majority of them, motor vehicle cases because of the impact upon premiums, workers’ compensation premiums because of the impact of those premiums on employment.

KIRBY J:   Under the current law, could you have sought leave in the Court of Appeal to challenge the interlocutory decision on the jury or is that excluded by the line of authority that that was not an order or judgment?

MR ASHBURNER:   In my submission, we could have sought leave had there been time.  It is not likely that we would have got leave.

KIRBY J:   Could you not have sought a stay of the trial until you had that matter determined?

MR ASHBURNER:   Certainly that was possible and the choice was to try to get an adjournment at the trial.

GAUDRON J:   And did you?

MR ASHBURNER:   No.

McHUGH J:   But until Lloyd v David Syme in 1984 in the Court of Appeal, the general view was that you had to appeal from the interlocutory order.  Lloyd said you could raise these matters on appeal even though they were appeals against the interlocutory orders.  But you made no attempt to appeal until – sorry, you filed your appeal after verdict, of course.

GAUDRON J:   Did you need leave to appeal?

MR ASHBURNER:   No.  Going back to the early decisions of this Court, there was a line of authority that an appeal as a right from a final judgment carries with it the right to challenge all relevant interlocutory steps along the way and this was plainly relevant and it was conceded that therefore our appeal from the final judgment carried with it that right.  There was no contest about that before the Court of Appeal.

KIRBY J:   Did you fight liability to the close of submissions before Judge Morrison?

MR ASHBURNER:   I believe so.  I was not in the case, but I believe so, yes.

KIRBY J:   So that there was a real issue on the question of liability, which is, as I understand it, one of the reasons that juries are sought by defendants, both on liability and on the impact on damages of liability issues.

MR ASHBURNER:   Yes, and it is not just quantum issues that are outstanding in the ordinary sense.  One of the real issues is whether there is evidence to establish any appropriate causal nexus between the plaintiff’s alleged inability to earn and the events that happened.  He had had a long series of back complaints and time off work and treatment for a long time, leading up to the relatively short period where he was riding upon this fork‑lift truck with solid rubber tyres.

McHUGH J:   Just the sort of plaintiff a jury might not like.  That is the view that the defendants obviously took on it.

MR ASHBURNER:   No doubt there were multiple reasons.  As I say, I was not in the case, I was not a party to the reasoning, but, for whatever reason, the defendant adamantly took the view that this was a case that ought to go to jury trial.  But to revert to your Honour Justice Kirby’s question, it is far from clear that if there had been time or if we had sought a stay or an adjournment and then sought leave, that we would have got it.  There is the line of authority from In Re Will of Gilbert, the judgment of Sir Frederick Jordan and approved in this Court in Adam P. Brown Male Fashions.

McHUGH J:   Well, it was referred to indirectly a few moments ago in this Court in Jiang in refusing leave.

MR ASHBURNER:   Yes.  Applying that situation here, there would have been, to say the least, a very real risk that the Court of Appeal would take the view, “Why should we be troubled about this by leave when you have got a right to come later and you might never need to because you might get an answer out of the trial before a judge which no one wishes to challenge?”.

KIRBY J:   Yes, I can remember those words, yes.

MR ASHBURNER:   So, your Honours, in my respectful submission, this is not a suitable vehicle.  It is not a suitable vehicle for multiple reasons, not the least of which is the Court does not have the benefit of the Court of Appeal reconsidering the matter, if it could be persuaded the matter was sufficiently open.  In my respectful submission, it is a matter properly left to the determination of the State Court of Appeal.  This is peculiar matter of practice and procedure in New South Wales.  It is regulated by the Supreme Court Act and the District Court Act in equivalent terms.  Those Acts are ones which are amended with great frequency.  They have been amended many, many occasions over the decade and more since Pambula and its successors have come out.  It is to be inferred, therefore, that the result in Pambula is not one which disturbs the Parliament in the least.

KIRBY J:   Well, now you are in the realm of fiction.  That is a fiction to say the Parliament is watching these things so closely.

MR ASHBURNER:   Not Parliament, but the government, just as the legislation we are concerned with was occasioned by remarks of a judge of the Supreme Court suggesting that there should be some discretion to dispense with juries, so it is that where a Court of Appeal or a reported Court of Appeal judgment comes out with a view which is contrary to at least the will of the executive, it would ordinarily be the case that an amending Bill would be introduced.  So I submit it is not fiction I am dealing with there, but reality.  Executive government is gravely concerned with such matters as cost of litigation and efficiency and so, with respect, it is not a fiction I am dealing with.  For all of those reasons, in my respectful submission, the appropriate course is to refuse special leave in this matter.

GAUDRON J:   Thank you, Mr Ashburner.  Mr Ireland.

KIRBY J:   Mr Ireland, my recollection of the background in Pambula was that it came along at a moment in New South Wales practice when judges were dispensing with juries almost as a right and that judges, and the legal profession generally, were getting out of the practice of jury trials and everybody was quite happy and then defendants started to say, “Well, we want our juries”, and that is the assumption on which you have an exceptional right to dispense with the jury.  Is that a correct recollection of the milieu in which problems ‑ ‑ ‑

MR IRELAND:   Yes. Justice Clarke, when sitting at first instance, had looked at the current provisions in a mesothelioma case where the plaintiff was going to die and his Honour’s considerations had prompted parliamentary change and section 89 of the Supreme Court Act was changed quickly in response to those, as my learned friend said, and then in the same year it came before your Honours as to what did this section mean, section 89, and no one seems to ‑ ‑ ‑

McHUGH J:   Well, the history in one sense is in your favour, because those remarks of Justice Clarke were made in Peck v Email in 1987 and he called for an unfettered discretion on the – that was his term, an unfettered discretion.

MR IRELAND:   And those are the words that he used in the Parliament.  But all of this unsuitable vehicle submission that is coming on the other side is really to disguise this problem for the respondent, that if this is well arguable, the point has continuously been applied now in the Supreme Court for 12 years, it is unlikely to be disturbed.  The answer that legislative intervention is something that could be expected if it is thought that the law should change is not a help to the applicant in this case.  His verdict at trial with a judge is gone unless this Court intervenes and gives him the opportunity to support it on a proper view of section 79.

KIRBY J:   What do you say about the application of Stead’s Case?

MR IRELAND:   Your Honour, I was a little puzzled by what Justice Handley said in relation to Stead myself.

KIRBY J:   So was I.

MR IRELAND:   It is just one of the mysteries of this case.  His Honour seemed to be saying that we would have to be convinced that there would be no different result.

KIRBY J:   But may that not be the answer, even assuming Pambula is right, that the parties seeking to have the judgment lawfully and validly obtained from a judge, to have that set aside, has in some way to establish not just that they have lost a jury, but that it would have been a different result and who can know?

MR IRELAND:   His Honour seems to express it with the onus on the other foot, that we had to show that there would not have been a different result as an answer to the exposure of the question in the Court of Appeal.  That is as I read it, but that could not be ‑ ‑ ‑

KIRBY J:   Your grounds do not seem to raise this point.

MR IRELAND:   We have not, no, but this is, we would say, a serious question, and the only issue could be suitable vehicle.

GAUDRON J:   Thank you.  Mr Ireland, you have a grant of special leave in this matter.  I take it this is a case in which argument could be completed within two hours, on both sides?

MR IRELAND:   Yes, your Honour.

GAUDRON J:   Thank you.

AT 3.22 PM THE MATTER WAS CONCLUDED