Halabi v Westpac Banking Corporation

[1989] HCATrans 54

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney	No Sl7 of 1989
NAJI HALABI

Applicant

and

WESTPAC BANKING CORPORATION

Respondent

Application for special

leave to appeal

DEANE J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

Halabi

AT SYDNEY ON FRIDAY, 17 MARCH 1989, AT 10.34 AM

Copyright in the High Court of Australia

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MR P.G. HELY, QC:  If the Court pleases, I appear.with

MR M. WALTON for the applicant. (instructed by

Blake Dawson Waldron)

MR C.A. SWEENEY, QC:  May it please the Court, I appear

with MR J.S. HILTON for the respondent. (instructed

by Allen Allen & Hamsley)

DEANE J: Yes, Mr Rely.

MR RELY:	If the Court pleases. We submit that
justification for the grant of special leave in this
case consists in the divergent approach taken by the
judges who constituted the Court of Appeal to a question of public importance.

In order to make good the submission based upon

divergent approach, can I hand up a schedule which

seeks to summarize the different routes by which

the judges who constituted the court came to the

same conclusion? If I could start with the President,

Mr Justice Kirby: it was His Honour's conclusion

that there was a settled rule, the application of

which, in the circumstances of the present case,

would have dictated a stay unless the court had power

to abrogate or modify that rule and unless it was

appropriate for that power to be exercised. His Honour

came to the conclusion that it was appropriate for

the rule to be abrogated by judicial decision

because the circumstances which led to its creation

had essentially disappeared. His Honour appeared

to accept that for a period this principle was part
of the law of this State but at some time between

1828 and the present time it disappeared.

TOOHEY J:  Mr Rely, when you have, as you have here, three

judgments which approach the matter in rather different

ways but arrive at the same end result, how do you distil

a special leave point, and what is that point?

MR RELY:  The special leave point is twofold, we submit: first,

what is the content of the principal restated
by the Court of Appeal in SMITH V SELWYN;	second, isit

open to the courts of this State effectively to

abolish that principle?

My purpose in going first to the judgment of

Mr Justice Kirby was to indicate an acceptance upon

his part but the content of the principle was such

that unless abolished its application to the present

case dictated a stay. He, and he alone, of the judges

who constituted the supreme court, thought that a

settled principle could be abrogated by judicial

decision simply because of a change in social

circumstances or because of a change in the legal

fabric.

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Mr Justice Samuels appears to have eoncluded

that unless modified, the principle would have been

of application in the circumstances of the present

case and that its application would have dictated

a stay. His Honour thought it appropriate to

modify the principle so that it was, in effect, spent

by institution of criminal proceedings, even if

those proceedings had not been prosecuted to completion.

Mr Justice Kirby, on the other hand, took the

position that modification was completely inappropriate

because it was inconsistent with the origins of the rule .and its purpose. His Honour dealt with that

matter at page 56 at line 5 and on the same page at

line 24. So that there was a direct conflict between

thePresident, on the one hand, and Mr Justice Samuels

upon the other as to whether it was appropriate~ in

effect, to modify a settled rule simply because

the court disapproved of its continued

application in factual circumstances where it had

been applied in the past.

Mr Justice McHugh, on the other hand, took

what is perhaps a quite different approach. His Honour

accepted, at page 86, line 10, that if a principle

has been settled in its application to particular fact

situations the court cannot refuse to continue to

apply it to those situations simply because the court

no longer approves of its application. But contrary

to the views of the President and Mr Justice Samuels,

His Honour took the view that the principle was

not-settled because the extent of the exceptions

to it perhaps had not been conclusively established.

His Honour--Mr ·Justice McHugh essentially based

his decision upon two points: first, the principle

cannot be taken to have been established because

from time to time the courts have recognized a number

of exceptions to its operation; second, the principle

has effectively become superseded by a general

discretion to grant a stay. We submit that the

exceptions to the rules or to the rule which the court had

previously recognized were exceptions which demonstrated

that the prosecution could not 1:te completed, such as if
the felon had been hangedfor some offence

or if some other person other than the plaintiff

had prosecuted him first and cannot conclude that a

principle is not a settled-principle simply because,

from time to time, the courts have recognized different

qualifications to its operation. Second, we submit

that the court cannot properly come to the conclusion

that a principle which has a particular genesis

and a particular purpose and a quite limited operation

has been subsumed into a general principle which has

a different origin, a different purpose and a much

broader operation.

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So that if one takes the judgments of the Court

of Appeal across the board, two of the judges appear

to accept that there did exist a principle which

would have been of application in the circumstances

of the present case but for judicial application of

that principle or modification to it. Two of the

judges accepted that abrogation was not appropriate

and there was a sharp division of opinion between

Mr Justice Kirby and Mr Justice Samuels as to whether

modification was apposite in the circumstances. Given

those differences of judicial opinion and given the

fact that but for his approach to abolition,

Mr Justice Kirby, at least, would have been disposed

to find for the applicant, we submit that the matter

is of sufficient complexity to justify review by

this Court.

TOOHEY J:  But to succeed in an appeal, in effect, you have to

show that each of the judges was wrong, have you not?

In other words, you would have to show that the felony-

tort rule is part of the law, that it has not been

abrogated by changed circumstances; that there is

either no excuse provision built into it or, if

there is, it is not applicable here and finally
that there is no overriding discretion on the part of

the court to stay proceedings?

MR HELY:	Yes, Your Honour, that is so.
TOOHEY J:	You would have to make good each of those propositions?

MR RELY:  Yes, Your Honour. The question is, first, is there a

rule? Second, what is its content? Third, what is the application of its content to the circumstances of the present case? And fourth, can the court

abrogate or modify it? We do not have to submit

that there is no general discretion to grant a stay

because the two positions can exist concurrently. There

can be both the SMITH V SELWYN rule, which is of

application to felonies onlv, existing

concurrently with the jurisdiction of the court to grant

a stay in relation to criminal proceedings generally.

TOOHEY J: If that is right, that might only get you as far as

the matter being remitted to the Court of Appeal for

further consideration.

MR RELY:	Except if one comes - what we submit is the
SMITH V SELWYN principle, one is entitled to a stay
as of right. There is no question of the exercise of a discretion.
TOOHEY J:	I thought you were suggesting that the two could live

side by side.

MR RELY:	The two can exist as alternative bases for invoking the
jurisdiction of the court.

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TOOHEY J:  If you reached a point where a stay dep~nded upon

the exercise of a general discretion, are you

suggesting that this Court would then or could then deal

with that matter or would it it have to go back to

the Court of Appeal?

MR RELY:  This Court could deal with that matter. I do not think

we can put up a general discretion as a special

leave point. I have to put up the SMITH V SELWYN

principle as the basis on which, we submit, special

leave should be granted. But I have to accept what

Your Honour puts to me that our approach involved

picking bits of a judgment and submitting they are

correct and picking other bits of the same judgment

and submitting that they are incorrect. Those

are our submissions, if the Court pleases.

DEANE J:  The Court need not trouble you, Mr Sweeney.

Mr Rely, QC, who appears for the applicant

has pointed to the divergence in the approach of

the different members of the Court of Appeal in

the present case. There is obvious force in his

submissions in that regard. In our view, however,

the actual decision of the Court of Appeal, in the circumstances of the present case, is not attended by sufficient doubt to justify the grant of special

leave to appeal.

Special leave is therefore refused.

MR RELY: If the Court pleases.

MR SWEENEY: With costs, Your Honour?

DEANE J:	You cannot resist that, Mr Rely?
MR RELY:	I cannot.

DEANE J: Yes, with costs.

AT 10.50 AM THE MATTER WAS ADJOURNED SINE DIE

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