Hogan v Trustees of the Roman Catholic Church, Sydney

[2002] HCATrans 291

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S270 of 2001

B e t w e e n -

PAUL MARTIN HOGAN

Applicant

and

THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF SYDNEY

First Respondent

DENIS FRICOT

Second Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 AUGUST 2002, AT 9.38 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR G.M. WATSON, for the applicant.  (instructed by T.D. Kelly & Co)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR I.G. HARRISON, SC, for the respondent.  (instructed by Makinson & d’Apice)

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, may I concentrate entirely on the question of the extent of the remitter, that is, the issues for retrial, the second point in the written submissions.  This case too could be subject to the comment at first that the principles are well established.  They are dependent upon the peculiar circumstances of the particular case, what should or should not have been the outcome of a discretionary judgment.

KIRBY J:   But there is another impediment you have to jump over, and that is that this is really a matter within the practice of the Court of Appeal.

MR WALKER:   And your Honour anticipates, and I would add, that the discretion is a discretion as to a matter of practice, albeit a highly important matter of practice, namely, appellate relief.

KIRBY J:   Very disarming of you to acknowledge all your problems at the outset.

MR WALKER:   It gives me a bit more time, your Honour, to try and deal  with what is inevitable in any event.  Can I try to capture, first, the point and, second, why it is special, as follows.

The point is that the learned President treated the fact that credibility‑based findings were at the heart of the relevant damages questions as being enough without more – and I stress without more – to mean that the whole question of damages should go, in a case where there had been not left to speculation, not left to a poring through the evidence, but, rather, clear answers as to the compartments, separate compartments, of damages.

GLEESON CJ:   But you do not have to put it that high.  The case against you does not have to be put that high, does it?  It is sufficient to say that the questions of credit might have affected other aspects of the calculation of damages.

MR WALKER:   If it were put that way, in our submission, that would raise a question of general principle, if by the word “might” it was intended to suggest that a theoretically unexcluded possibility suffices to carry all of damages when an error is shown only in one compartment.

GLEESON CJ:   No.  It is just intended to express that the Court of Appeal could not be confident that questions of credit were not material to any of the other issues.

MR WALKER:   It is certainly true that they could not have been confident that they were not material, but I am going to go further.  I would concede that the economic loss, the special damages, were plainly fundamentally dependent on findings of credit.  So was liability.  There is illogic in suggesting that because all elements of this case unsurprisingly depended upon the jury’s view of the credibility of somebody who, after all, was subject to a concerted forensic attack that he was bunging it on, it is illogical to suppose that for that reason alone, once general damages were virtually concededly too large, all damages had to go, but not liability.

Your Honours, the principle needs to be that when error is shown requiring appellate interference, and particularly where a jury has done its jury’s work and brought down answers which allow beyond any speculation compartments to be observed, that where no error is shown either as to liability, no challenge, or as to the capacity of the evidence to support the particular finding as to special damages, the economic loss – and your Honours will have noted in the critical page 100 of the application book the way the learned President goes through those components, paragraph 31 at line 32 or so:

It is not contended that the evidence at trial was incapable of supporting the awards for economic loss.

The way in which economic loss was sought to be captured in the order for limited retrial was simply this theory, that because they too, like general damages, were simply asserted to be depending upon credibility, they too may have been affected by error.  The species of error is not suggested.  This is not a possibility of a compromised verdict, when an appallingly low general damages claim is given, for example.  No species proposed, simply some innominate unexcluded possibility.  Now, your Honours, the first thing to say is that ‑ ‑ ‑

KIRBY J:   But is that not itself a reason for, in a sense, going back to square one, where the first trial has so seriously miscarried on this issue and to have the matter reconsidered in toto, out of fairness to both sides?

MR WALKER:   No.  The fairness to both sides require ‑ ‑ ‑

KIRBY J:   At least is that not an available view which was available to the Court of Appeal?

MR WALKER:   No.  That would be, in our submission, what might be called a “clearing the field entirely” approach where all you need to do is to take out a few weeds.  The jury has done its work.  A major trial has found liability based upon credibility, as it must have been, pure and simple; has found economic loss in a way that it is conceded by the respondent in this Court, appellant below, was capable of being supported by the evidence; no species of error proposed except some innominate spill over of a credibility effect.  But the illogic comes because that must surely apply to everything the jury did if once you took that approach, but this Court has never taken that approach.  It has observed that there are compartments which fall naturally from ‑ ‑ ‑

KIRBY J:   That is so, but what the compartment is is something really that involves evaluation by a court which has more time on the matter than we typically have ‑ ‑ ‑

MR WALKER:   Yes, and that finally brings me to this point about this case.  The compartments are laid out simply.  This is a short point.  It is not a case where this Court would ever have to pore through the evidence.  Matters go by concession.  The evidence was capable of supporting the economic loss.  The general damages, as I say, are virtually concededly too large.  The issue below was whether or not the court should do it, in light of section 107, or whether the trial court should do it again.

KIRBY J:   I just do not quite see what we could say that would be of general guidance to intermediate appellate courts, the Court of Appeal in particular.  It is really a question of evaluation in the facts of each case.  The power is there.  It is a question of whether the power is apt to be used in the particular case.

MR WALKER:   In answer to your Honour’s question, it is certainly clear, not least on established authority, which makes this not special to that extent, that any formulation determining the case in our favour on an appeal to this Court would include express reference to the particular circumstances of each case.  That is not a point for special leave. 

The special leave point is that what the learned President has done is to suggest that as a general rule, if there is a credibility‑based finding for one compartment of damages and the same is true of another compartment of damages about which no error is sought to be shown in itself, then that suffices to wipe out the individual differences in what should otherwise be a tailored discretionary judgment and, we would suggest, the general principle being that the Court of Appeal should be reticent and should tailor its remedy as precisely as it can to destroy no more of the jury’s work below than is necessary.  So the point has something extra to it, namely, the nature of an appeal from a jury’s decision.  In our submission, that is something which has not been paid regard to in the Court of Appeal’s reasons below. 

It would be, in our submission, a bad general rule to allow to stand from this decision of the Court of Appeal that once one can observe, as is almost universal, that two contested heads of damages both depend to some extent on credibility, then there may not be divisions between them in determining the order for retrial as to extent of issues remitted.

GLEESON CJ:   Mr Walker, it may just reflect the fact that I have not come across it, but have there been cases in which a new trial on damages has been awarded limited to the question of general damages?

MR WALKER:   Your Honour, there have, yes.  At page 103 of the application book some the President referred – at paragraph 43, line 22, take one example there:

Gibson v Smith . . . (new trial limited to damages for future care), Rosstown Holding Pty Ltd v Mallinson . . . (new trial limited to the assessment of economic loss)).

Your Honours, we would submit that there are two things about the jury decision in this case that does make this a special leave point and displays error below of a kind which needs correction in this Court lest it be perpetuated.

The first is that there ought to be real respect and regard for the work of a jury.  This Court admittedly has said that before – to that extent it is not special – but, in our submission, there is high public interest in preserving what can be preserved of a jury’s decision.

GLEESON CJ:   I presume that that old learning that involved juries being told to stand back and have a look at the total at the end must all have gone.

MR WALKER:   And it does not apply when they bring down separate compartments explicitly, no, obviously, your Honour.

GLEESON CJ:   This may go back to a jury or it may not, I suppose, depending on the wishes of the parties.

MR WALKER:   That is true.  The second aspect, of course, is that in this case it is not simply the case that one can talk about some innominate error to do with a credibility assessment which is said to have led to the excessive general damages, rather, it seems to be on all hands conceded and certainly found below that the high likelihood is that it was the current restraint on what can be said to juries by way of directions on the general damages, the non‑economic loss, which probably led to the excess.  Now, that, of course, is not a component which has anything to do particularly with credibility.

GLEESON CJ:   I notice the importance you place on that in your written submissions, and the importance that was placed on it by your opponents, but why would you suppose that?  I can understand that it might have been a restraining factor on the amount that was awarded if they had been given some information about what you get for being a quadriplegic, but even so, they were just left at large without any such restraint.  So there must have been something that impelled them to this conclusion.

MR WALKER:   Well, “sympathy” is one word, “empathy”.

GLEESON CJ:   It is getting close to credibility, is it not?

MR WALKER:   I am about to say both sympathy and empathy obviously have to do with one’s identification or feeling for a situation which you believe to have occurred, and there is no doubt about it, that this was a credibility‑based fight at liability and all compartments of damages.  That returns to the point that there is no more logic in therefore sending back all heads of damage than there would be in sending the whole lot back in relation to liability. 

My point is that there is no finding of fact where there is an inscrutable jury verdict, apart from the compartments of answers to damages questions, which could ever, for example, have attracted the kind of appellate scrutiny that one would have from a judge decision under Earthline and it would be, in our submission, wrong in principle, therefore, to suppose that a jury verdict on an explicitly compartmentalised damages claim is more susceptible to being wholly set aside, even as to those parts which are not the subject of criticism on any known appellate ground.

GLEESON CJ:   This debate about whether or not juries ought to be given some guidance on levels of general damages has been rather overtaken by events, has it not?  Capping of damages must complicate that possible exercise enormously.

MR WALKER:   Not least because one thing about a cap is that everyone may cluster at the cap.

KIRBY J:   Yes, you mentioned Planet Fisheries.  One day I would like to get my hands on Planet Fisheries, but I do not think this is the case ‑ ‑ ‑

MR WALKER:   No, I cannot put that and I do not put that.  The vehicle was not presented in that fashion.

KIRBY J:   And for the reasons the Chief Justice gave, in a number of States it is not now as relevant as once it was.

MR WALKER:   Yes.  Your Honours, the other question which makes this of importance is that although, of course, my learned friends are right, this is to do with the application of a particular rule in New South Wales about what the Court of Appeal can do, but as your Honours know, and as we can demonstrate from the material that we have made available to the other side, these are rules which certainly obtain in virtually identical, certainly materially similar, terms, at least in Victoria, Queensland, South Australia, Western Australia and the ACT.  They are somewhat different in the Federal Court and somewhat – I should say somewhat different in the ACT and somewhat different in the Federal Court.

So that there is more than New South Wales importance in the question whether there ought to be, as the Court has pronounced here, a general rule that once you can observe that which is pretty usual, namely, creditability‑based findings for all findings of damages, one cannot, in effect, because of the so‑called unexcluded possibilities, send back for retrial in what ought to be the tailored efficient method permitted by this rule, namely, to send back for the correction only of those things which have been shown to have been vitiated by error, it being, in our submission, a matter of single public importance for the administration of justice that one does not do twice what has been properly done once.  Once the modern law of statutory appeals was developed ‑ ‑ ‑

KIRBY J:   That is the question, is it not, “properly done”?

MR WALKER:   Yes.

KIRBY J:   It has been found that there were errors.  I cannot remember – and I sat in these appeals, a lot of them, for I think 12 years and I cannot remember a single case where I sent a matter back with just a limited matter to be reassessed.  I do not say it did not happen, but normally you sent the matter back for reassessment of damages.  Sometimes the debate was whether or not it should be liability and damages, but the two contaminated each other.

MR WALKER:   No contamination was shown.  This is ‑ ‑ ‑

KIRBY J:   That is not an issue in this case.

MR WALKER:   But that is how it is put.  That is how the issue is posed in paragraph 31 at page 100 of the application book, a contamination but of a kind that cannot be named, the extent of possibility of which cannot be guessed at ‑ ‑ ‑

KIRBY J:   No, but I mean it is not suggested and the respondent did not seek before the Court of Appeal that there be a retrial on damages – on liability rather.

MR WALKER:   On liability, that is right, the illogic of which, in our submission, emerges when one considers how critical credibility was to that.  May it please the Court.

GLEESON CJ:   As this application was originally framed, there were two issues that were raised for consideration but it was only the second that was pressed in oral argument.  On the first issue, that is, whether there should have been an order for a new trial, the court’s power to assess damages itself was conditioned on the court being satisfied of certain matters and the court, that is, the Court of Appeal, was not so satisfied.  It has not been demonstrated that there is a sufficiently arguable case that the court’s lack of satisfaction was itself an error to warrant the grant of special leave on that point.

As to whether the new trial on damages should have been limited to certain issues of damages, the decision of the Court of Appeal involved a discretionary judgment.  There are insufficient prospects of success of an appeal against that discretionary decision to warrant a grant of special leave to appeal and the application is refused with costs.

AT 9.58 AM THE MATTER WAS CONCLUDED