Hercules v Phease; Hercules v Lah - [1993] HCATrans 64

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M77 of 1992
B e t w e e n -
KEITH ALAN HERCULES

Applicant

and
PERCIVAL CHARLES PHEASE

Respondent

Office of the Registry

Melbourne No M78 of 1992
B e t w e e n -
KEITH ALAN HERCULES

Applicant

and
MAUREEN ELLEN LAH

Respondent

Applications for special leave

to appeal

MASON CJ
BRENNAN J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 MARCH 1993, AT 3.12 PM

Hercules

12/3/93

MR D.A. PERKINS: If it please the Court, I appear for the

applicant. (instructed by David V. Finney Pty)

MR J.M. SELIMI:

May it please the Court, I appear for both

respondents. (instructed by Mulcahy Mendelson &
Round)

MASON CJ: Yes, Mr Perkins.

MR PERKINS: If the Court pleases, it is my application that

the hearing of these applications for special leave
be adjourned. The grounds on which I make that
application are that the brief which I have has
only been in our possession since last Wednesday,
and I consider that I have not had sufficient time
to - - -

MASON CJ: Since last Wednesday?

MR PERKINS:

Sinc·e last Wednesday, and I consider that I

have not had sufficient time to put into an order
suitable to be placed before this Court the matters
that I wish to put forward in relation to this
application for special leave.

MASON CJ: But I would have thought two days would have been

more than ample time to prepare an application for
special leave that is within a confined compass.

MR PERKINS:

I can only say that if I have failed to meet

the expectation that Your Honour had in that
respect, I nevertheless have not found that the
time that I have had in relation to this matter has
been adequate.

MASON CJ: What is the difficulty, Mr Perkins? Can you give

us some indication of the difficulties that have
confronted you in preparing the case.

MR PERKINS:

The case involves questions relating to the

circumstances in which a decision of a judge should
be set aside or treated as being able to be set
aside by virtue of correspondence received by the judge after the conclusion of argument and before decision, but not disclosed to one of the parties.

GAUDRON J:

Does it, or does it not involve the question

whether leave should have been granted to raise
additional grounds of appeal with respect to that
matter in circumstances where the only substantive
issue in the appeal was a question of law of a
quite different character?

MR PERKINS: In my submission, the question before the

Full Court was not simply a matter of law. It is
true that in characterizing the question or in
coming to the question, His Honour Mr Justice Marks

Hercules

12/3/93

in particular referred to the question as being one
of law. It is true, as a matter of history,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hercules v Phease; Hercules v Lah

Details

AGLC: Hercules v Phease; Hercules v Lah [1993] HCATrans 64
Case: [1993] HCATrans 64
Decision Date

CaseChat Overview and Summary

These proceedings before the High Court of Australia concerned applications for special leave to appeal by Percival Charles Phease against respondents in two separate matters, M77 of 1992 and M78 of 1992. The applicant sought an adjournment of the special leave hearing, contending that his legal representatives had only recently received the relevant brief and had insufficient time to prepare the application.

The central legal issues before the Court revolved around the circumstances under which a judge's decision could be set aside. Specifically, the applicant argued that a decision might be impeachable due to correspondence received by the judge after the conclusion of oral argument but before judgment, which was not disclosed to one of the parties. A further issue raised was whether leave should have been granted to introduce additional grounds of appeal concerning this correspondence, particularly when the primary substantive issue in the appeal was a question of law of a different nature.

The applicant's submissions highlighted that the case involved not only the question of whether correspondence sent to a judge after submissions but before judgment, and not disclosed to a party, could lead to a decision being set aside, but also the question of whether the applicant was entitled to respond to such correspondence. This, it was argued, raised fundamental questions concerning the administration of justice, including aspects of due process, the law of contempt, and the apprehension of apprehended bias, distinct from any suggestion of actual bias.

Orders