Joye v Sheahan

[1996] HCATrans 240

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A18 of 1996

B e t w e e n -

IAN EDWARD JOYE

Applicant

and

JOHN SHEAHAN

Respondent

Application for special leave to appeal

DAWSON J
GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 14 AUGUST 1996, AT 3.14 PM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC:   May it please the Court, I appear for the applicant with my learned friend, MR M.J. LEEMING.  (instructed by Cowell Clarke)

MR J.R. SULAN, QC:   May it please the Court, I appear for the respondent with my learned friend, MR R.J. MILLS.  (instructed by Piper Alderman)

DAWSON J:   Mr Bennett.

MR BENNETT:   If the Court pleases.  Your Honours, one of the regular grounds on which special leave is refused in this Court is that, although one has an important question of law, there is a preliminary question of fact or quasi-fact on which the applicant would have to succeed on the appeal before it arises and, therefore, the case is an inconvenient vehicle.  At first sight this case might look like that.  There are, however, we would submit, three reasons why that is not so. 

The three reasons are:  first, the very great strength and importance of the underlying Laurie v Carrol point; the second is that this case provides itself a convenient vehicle for testing one question which arises frequently in relation to the application of Jones v Dunkel, and the third is that the point arising under Jones v Dunkel is, itself, a very, very short and very clear point which can be dealt with very briefly and on which the appellant, as he would be, would have very strong prospects of success.

GAUDRON J:   You would have to go so far as to say that that conclusion could not have been reached..

MR BENNETT:   Yes, your Honour and we do, but we also say ‑ ‑ ‑

GAUDRON J:   For my part, it seems to me that it was an available inference, having regard to the evidence and the letter.

MR BENNETT:   May I take your Honour straight to that and leave the first two.  The first matter to note is that Mr Joye was resident overseas ‑ her Honour found this ‑ and had been resident overseas for some four years, since 1991.  The second is that he had been in Australia for a few weeks at the time.  The third is that there is no suggestion that he left because of, or was in any way affected by, the issuing of the process against him.

The statement made in our written submissions that her Honour found that he had planned to leave for some time on 13 December, was not established - that is an error - but her Honour held that that was equally open.  So, that was the first background matter.  Her Honour then gave four reasons why she felt able to draw the inference.  The Full Court really applied only one of those to draw the same inference.  May I just very briefly show your Honours why none of those four are sufficient to enable the inference to be drawn and, in doing so, I hope also to demonstrate how short and clear the point is for the purpose of making good my second submission, that if your Honours do think it is borderline, this case is a convenient case to test the question as to how one draws the line between available inference and mere guess, in applying Jones v Dunkel.

The four matters which her Honour referred to are set out on page 14 of application book.  The first were that the solicitors to whom the letter was written were the solicitors in ongoing proceedings.  That is a totally neutral matter on its own; it has to be combined with others to have any significance.

KIRBY J:   I suppose one adds to that the fact that normally such a solicitor with ongoing involvement keeps a degree of contact with a client, that normally does happen.

MR BENNETT:   Yes, but not every day, your Honour.

KIRBY J:   Not every day, but ‑ ‑ ‑

MR BENNETT:   Here, the letter was faxed to the solicitors on the Friday, and this is very shortly before Christmas when people are particularly busy.  Mr Joye left for overseas on the Tuesday.  The reply was sent ‑ and the letter called for a reply ‑ on the following Friday.

KIRBY J:   I suppose that it was unusual that Mr Joye had come to Australia and therefore the solicitors would know that, they being Australian solicitors, they had their client in Australia at the time and that he would be leaving shortly to pursue his residence out of Australia.

MR BENNETT:   There is certainly no evidence that they knew the date, and, more importantly, your Honour, even if they did, one cannot from that draw the inference.  First of all, the inference that in a span of one working day the solicitor had taken the letter, regarded it as sufficiently important to do something quickly in that one day.  Bearing in mind, of course, that today, in these days of mobile phones, a person overseas is often just as easy to contact as a person in one’s home city.  There is no particularly difficulty in communicating by phone because a person is overseas.

KIRBY J:   I think the solicitor, having received the process, would know that some significance would attach to the fact that their client was in the country.

MR BENNETT:   Yes, your Honour, if the solicitor, in this busy period, read it, applied his mind to it straight away and dealt with it, but the important point, your Honour, is, that there is simply no evidence that the solicitors knew that he was returning overseas on the Tuesday, and her Honour did not draw that inference.

KIRBY J:   It is the fourth point that affected the Full Court, the “careful reticence”, as they described it.

MR BENNETT:   Yes.  I will come to that your Honour.  But may I just deal with this.  I have really dealt with the first one.  The second one is that they were, in effect, requested to seek instructions.  That is not, of course, quite what the letters say.  If your Honours look at the letter at page 28, your Honours will see what the letter to them says is:

Please could you tell us by Friday 16 December 1994 whether you have instructions to accept service ‑

It is a small point, but the letter does not ask them to make the inquiry, it simply makes a request for information:  “Let us know by Friday the 16th whether you have those instructions?”

KIRBY J:   The only way a solicitor could respond to that, in most cases, would be to contact the client because a solicitor has to act on instructions.

MR BENNETT:   I accept that, your Honour, and I will come to that when I come to the answer, if I may.  The third matter is that he was apparently using a Sydney address.  That Sydney address, your Honours can see from page 29 - it is an address in Pyrmont - was the address of his accountants.  That is line 25 on page 29.  That is the Sydney address which he is using.  So, that is not really of any particular significance.  The final matter is ‑ the most important that the Full Court relied on ‑ was the reply.  The reply appears at page 29, and the reply said:

We refer to your letter of 9 December 1994 and advise that we have no instructions to accept service.

In my respectful submission, that is the normal and polite reply to the request.  First of all, it is a correct literal reply.  The letter says, “Do you have instructions?”  The answer is, “No”.  Secondly, it is the normal way that question is answered if it is not answered in the affirmative.  One does not say, as a matter of practice, “I have spoken to my client and my client says, no, I am not to accept service”.  That would be an antagonistic way of replying and not the normal way of replying, even if that were the situation.  What one says is, in neutral and polite terms, one uses what is really a time‑honoured phrase, “I have no instructions to accept service”.  And yet, that is described by the Full Court as being a “careful reticence”, and the Full Court says, at page 39:

The careful reticence of the reply, “We have no instructions to accept service” is the evidence which brings the principle of Jones v Dunkel into application.

Your Honours, in my respectful submission, it simply does not.  This is a classic case where there was just no evidence.  It is a choice between guesses.  Did he know he was going overseas on the Tuesday and get round to ringing him before them?  If not, nothing follows.  And the Full Court’s reasoning though does not depend on the solicitor knowing that he is going overseas.  It says that “careful reticence” indicates, because they did not say, “We have spoken to him and he says, no” or, “We could not get in touch with him”, that careful reticence shows that they had spoken to him.  We would submit that that is simply not an available inference. But they then go on from that, on page 40, and say:

If that was what occurred, the probability is that it occurred before Tuesday, 13 December ‑ ‑ ‑

DAWSON J:   But, Mr Bennett, this really is just an argument about whether Jones v Dunkel was properly applied in this case or not and that is just a question of whether one is attempting to supply evidence which is not there or is drawing a proper inference.  That depends on the facts of the case and it is not really a matter for special leave, is it?

MR BENNETT:   I fully accept that., your Honour, but there are three additional factors in this case.  The first is, we say this argument is so short ‑ indeed, I have put it, and I have put most of what I have put on the appeal ‑ ‑ ‑

DAWSON J:   It may be short but that does not make it important.

MR BENNETT:   No, your Honour, on its own it is not, except for the second and third factors.  The second factor is that there is no real authority discussing how one decides to draw that line between cases where there is an available inference and cases where it is mere guesswork.

DAWSON J:   There is no principle you can lay down which will solve that problem.  That is a matter of the facts of each case.

MR BENNETT:   One principle that might assist, your Honour, in cases of this nature, is to say that unless there is evidence on which a court could come to the conclusion - - -

DAWSON J:   But that is merely to restate it, of course.   Jones v Dunkel does not supply evidence, it merely enables you to interpret the available evidence.

MR BENNETT:   Your Honour, we would submit it is important to amplify the test a little bit to make it clearer.  The fact that the decision like this is made rather indicates that and ‑ ‑ ‑

DAWSON J:   We know that; you know that, we all know it, but ‑ ‑ ‑

MR BENNETT:   Maybe some do not, your Honour.  It is also a very convenient vehicle for it because usually one is going to have long complicated facts which the Court would be reluctant to go into.  Here one has a very simple set of facts on which one could give, as a very good example, of a case in which one cannot draw the inference and, in that sense, if the Court is to define that principle further, this case is a convenient vehicle for it. 

But, my major submission, your Honours, is this:  the case is so strong on that very short point and so likely to succeed on that, with very little time being taken, that the case really will raise what is a very important point of private international law.  My friend has not suggested the contrary in his submissions.  It is a point, indeed, on which the trial judge and the Full Court differed.  The trial judge inclined to the view that the relevant time is issue and the Full Court inclined to the view that the relevant time was service.  This Court in Laurie v Carrol referred to the two views.  Academics are divided on it.  As we have shown in our submissions, the Full Courts around Australia are divided on it.  The English courts themselves have divided on it ‑ ‑ ‑

KIRBY J:   Yes, but if you take the Jones v Dunkel principle as applying, you never get to it, so it is not a good vehicle. 

MR BENNETT:   I have given your Honour two answers to that.  First, Jones v Dunkel does not apply.  The courts below are clearly wrong ‑ ‑ ‑

KIRBY J:   You left out a very import fact of the equation and that is that the Full Court said, “Your solicitors are very well regarded and very proper solicitors, and one might have expected that if the position was that your client was not available, that they would have said, ‘Unfortunately, we could not contact our client’, or ‘Unfortunately, he was not able to be communicated with’, or something to that effect”.  Instead, it is the very carefully worded response that affected the Full Court.  At least, it is open to them.  It is just a question of drawing inferences from facts; something courts do every day.

MR BENNETT:   The short answer to that is, your Honour, it is a standard phrase, not a carefully crafted phrase - the first answer - and it is the phrase one would normally give whatever the situation was, if it were true, and the third matter is, it says nothing about whether communication, if it did take place, took place before or after the Tuesday.  Indeed, there was a greater part of the working week between the Tuesday and the Friday than between the Friday and the Tuesday, so, the probabilities, if one wants to count days ‑ ‑ ‑

KIRBY J:   As you say, there are mobile phones available all through the weekend.

MR BENNETT:   Even if it is the weekend it comes to half and half, your Honour.  It is pure guesswork to say that communication took place prior to his departure on the Monday.

KIRBY J:   It is just facts, facts, facts ‑ ‑ ‑

MR BENNETT:    But, your Honour, it is short facts which will enable this Court to decide a very important issue and an issue which has been festering between academics for years, festering between courts for years, a very basis issue of law.  Is jurisdiction dependent on presence and jurisdiction at issue or at service?  Your Honours, where the other question is so likely to be decided in our favour and itself, in any event, involves quite an important question under Jones v Dunkel, we would submit that this case is a ‑ despite the apparent problem ‑ convenient vehicle for it.  May it please the Court.

DAWSON J:   The Court need not trouble you, Mr Sulan. 

This application seeks to disturb the facts found by inference by the judge at first instance.  The Court is of the view that no sufficient basis has been established for that purpose.  That being so, it is not an appropriate case in which to deal with the other points raised by the applicant.  Special leave to appeal is accordingly refused.

MR SULAN:   If the Court pleases, I seek an order for costs.

DAWSON J:   Mr Bennett?  With costs.

AT 3.30 PM THE MATTER WAS CONCLUDED