Keramianakis & Anor v Regional Publishers Pty Ltd

[2009] HCATrans 36

[2009] HCATrans 036

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S311 of 2008

B e t w e e n -

CONSTANTINE KERAMIANAKIS

First Applicant

DR ALBERT SMAGARINSKY

Second Applicant

and

REGIONAL PUBLISHERS PTY LTD

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 3 MARCH 2009, AT 10.18 AM

Copyright in the High Court of Australia

MR G.O’L. REYNOLDS, SC:   May it please the Court, I appear again for the appellants as before with MR A.A. HENSKENS and MR R.J. ANDERSON.  (instructed by Pryor Tzannes & Wallis)

MR J.S. WHEELHOUSE, SC:   May it please the Court, I appear for the respondent with MR M.F. RICHARDSON.  (instructed by Johnson Winter & Slattery)

MR S.J. GAGELER, SC (Solicitor‑General of the Commonwealth of Australia):   If the Court pleases, I appear with MR G.M. AITKEN for the Attorney‑General of the Commonwealth intervening under section 78A of the Judiciary Act.  Your Honours, I seek about five minutes at any time convenient to the Court, but probably after the appellant would be the most convenient time.  (instructed by Australian Government Solicitor)

FRENCH CJ:   Yes, all right.  Thank you, Mr Mr Solicitor.  Mr Reynolds.

MR REYNOLDS:   I hope your Honours have been informed Dr Smagarinsky’s appeal is the subject of some consent orders and your Honours should have a copy of that noting that his appeal is dismissed with no order as to costs.

FRENCH CJ:   Yes, all right.  The order will be made in terms of the consent.  The second appellant’s appeal is dismissed with no order as to costs.

MR REYNOLDS:   If your Honour pleases.  Can I note in the two matters before we get under way first of all my client, Dr Keramianakis, is not pressing his appeal in relation to imputation (a) and that was part of the agreement leading to those consent orders.  Secondly, I have been told about half an hour ago that Mr Wheelhouse is not pressing his notice of contention which would have dealt with imputations (b) and (c).  The net result of all of that is that there is one issue of substance before your Honours today and that is the question of whether or not the New South Wales Court of Appeal had jurisdiction in this matter.

FRENCH CJ:   That makes it nice and tight.

MR REYNOLDS:   Hopefully.

FRENCH CJ:   Mr Reynolds, before you proceed, I think counsel have been asked whether they have any objection to Justice Crennan participating on the papers, as it were?

MR REYNOLDS:   We have no objection, and I understand Mr Wheelhouse does not either, nor Mr Gageler.

FRENCH CJ:   Yes, thank you.

MR REYNOLDS:   If the Court pleases what I would like to do is spend a very brief period introducing the matter to your Honours and then take your Honours briefly through the legislation as it existed prior to 1995 and subsequently and then to present my argument on jurisdiction.

As your Honours will have seen this is a case commenced in the District Court by two doctors, two plaintiffs’ actions for defamation.  There were two defendants.  One is a Dr Wagstaff who is not a party to this appeal and second of all Regional Publishers, which is part of the John Fairfax Group as the publishers of The Daily Liberal, which is the local newspaper in Dubbo, represented here by Mr Wheelhouse and Mr Richardson.

Now, the jury answered a large number of questions and they are set out, starting at page 358 in the second volume of the appeal book and they are really four sets.  I just want to make it clear which questions are matters for your Honours.  First of all, at 358 to 359 there are the questions between Dr Keramianakis and Dr Wagstaff and they are not relevant to these proceedings.  Second of all, at 362 to 363 there is Dr Smagarinsky against Dr Wagstaff and they are not relevant to these proceedings.  The questions and answers that are relevant to these proceedings are at page 367 and they are the questions involving Dr Keramianakis against Regional Publishers.  The final set of questions is at page 368 which is Dr Smagarinsky against Regional Publishers and since the notice of contention is no longer in play, those questions are not really relevant either.

Those questions your Honours see on page 367 were answered and the particularly important one is question three, wherein in substance the jury found that each of the three imputations relied upon by Dr Keramianakis was not conveyed by the newspaper article in The Daily Liberal. 

As a result of the answers to those questions there was a judgment or order taken out, which your Honours will see at page 581 of the appeal book.  Perhaps it may be convenient if your Honours underscore the relevant orders, or judgment, which are relevant to Dr Keramianakis, because that is the only remaining appellant.  The whole of the first order, at line 31 on page 581 is relevant – that is:

Verdict for the second defendant, in respect of the claim by the first plaintiff.  First plaintiff to pay second defendant’s costs.

That second sentence in order 1 is duplicated as the second sentence in order 3, which states:

First plaintiff to pay the second defendant’s costs as in 1. above.

So they are the relevant orders so far as they concern Dr Keramianakis. Now, Dr Keramianakis purported to appeal from those orders to the New South Wales Court of Appeal under section 127(1) of the District Court Act, which we will be coming to in detail in a moment, and briefly stated the basis of his appeal was that wrong directions were given, the jury’s answers were perverse and he also raised some other matters, such as natural justice.

The Court of Appeal held that on the merits of Dr Keramianakis’ appeal he should succeed, and that is now no longer the subject, as I said, of a notice of contention, but by a majority of two to one held that the court had no jurisdiction under section 127(1) of the District Court Act to hear an application for a new trial.

Your Honours should have a folder handed up on the last occasion which is called “Bundle of Agreed Relevant Legislation”.  What I would like to do is to start with the position before 1995 because the section, the subject of this appeal, was introduced by some amendments in 1995.  So I will start with the position before 1995 and then look at the 1995 amendments, then look briefly at some subsequent amendments and conclude by looking with the provisions of the Act as they existed at the time of the appeal to the Court of Appeal.

The last four pages behind tab 6 include the legislation as it existed prior to 1995.  As your Honours will see from the index, these were the provisions of sections 126, 127 and 128 of the District Court Act as they existed from 1975 through to 1995.  Your Honours will see that there are basically four options which a party to a proceedings - a party to a jury trial in the District Court can do if, putting the matter broadly, the party is dissatisfied with the verdict in the case.

The first possibility your Honours will see in section 126(1) is that he can or she can apply for a new trial to the District Court after judgment and after verdict.  That is paragraph (b).  The second possibility is that before judgment, and if no verdict has been entered, then a new trial may also be sought.  That is the second right, or option.

The third option your Honours will see in section 127, headed “Application to Supreme Court for new trial”. Your Honours will see there from subsection (1) that “an application for a new trial in respect of the action may be made to the Supreme Court”; subsection (2) “the Supreme Court may order a new trial”; subsection (3) “An application” for a new trial “shall be deemed to be an appeal”. Your Honours see there the conflation between this notion of appeal and new trial. Subsection (4) “Without affecting the generality of subsection (2)” - if I can just go back to subsection (2), that presumably provides for an order for a new trial on any basis on which a new trial would traditionally be ordered, but there are specific provisions in subsection (4) indicating that if there is a verdict or a finding which is against the evidence or the weight of the evidence then that can be the subject of a new trial.

So that is the third option available to what I will call a dissatisfied litigant in the District Court in a jury trial. The fourth option is that provided by section 128, which provides in substance that an appeal may be brought ‑ ‑ ‑

GUMMOW J:   Just looking at 127(1) for a minute - “an application may be made” - the usual unfortunate State drafting – it is a conferral of a new jurisdiction on the Supreme Court, is it not?

MR REYNOLDS:   Yes.  There is an expression that is used where there is a conferral of jurisdiction, also power; I have just forgotten the name of it.  I am sure your Honour remembers.  But that is the effect of this legislation – to create that jurisdiction and also ‑ ‑ ‑

GUMMOW J:   That conferral of a new jurisdiction would carry with it, would it not, everything that was necessary to make it effective?

MR REYNOLDS:   Yes, your Honour.

GUMMOW J:   There are a number of cases that illustrate that proposition.  One reference is the joint judgment in Pelechowski (1999) 198 CLR 435 at 451 where there is a discussion of an earlier treatment by Justice Dawson of this situation. But is that not the starting point for all this debate that then breaks out?

MR REYNOLDS:   Yes, and my recollection of Pelechowski is that it is not, of course, talking about inherent jurisdiction because it is an inferior court; it is talking about implied jurisdiction and sometimes – I withdraw that, and that is at the nub of ‑ ‑ ‑

GUMMOW J:   There is the added factor here that the Supreme Court is said to be the legatee of the courts of Westminster, anyway, is it not?

MR REYNOLDS:   Indeed.

GUMMOW J:   It has this well of undefined powers, we are told.

MR REYNOLDS:   It does, and that may be alluded to in subsection (2).

GUMMOW J:   Yes, exactly.

MR REYNOLDS: So the practitioners of course in New South Wales have been used for at least 20 years – in fact, more than that – as I said, putting the matter broadly, if they are dissatisfied with what happened at a jury trial in the District Court they can either apply to the trial judge or they can go to the Court of Appeal for a new trial or, as we have seen in section 128, there is also a specific right conferred to enable an appeal to be brought.

There is also some potential, obviously, for overlap between sections 127 and 128. For example, if there had been a wrong direction under section 128 and presumably that would not only ground a right of appeal under section 128(1), but also be a ground for seeking a new trial under section 127.

FRENCH CJ:   Was the application to the Supreme Court under 127(1) made after the jury had come back before any order was made or judgment entered by the District Court, or was it simply on the basis that a judgment had been made by the District Court and then the application for the new trial made to the Supreme Court?

MR REYNOLDS:   Well, it talks about after judgment in an action.

FRENCH CJ:   Yes.  Then it raises some of the debate we are actually having, I suppose.

MR REYNOLDS:   Yes, normally that and possibly that only happens after a verdict has been entered in strictness.  So a verdict would be entered, then there would be judgment and then one would apply to the Supreme Court for a new trial.

FRENCH CJ:   So in that respect it differed from 126(2) where the application in the District Court was before judgment?

MR REYNOLDS:   Quite, and it looks like if something has gone seriously awry, if I can put it that way, with the case, as sometimes happens in a jury trial, then the judge is given a power then to put a stop to the proceedings and order a new trial at that point.  I will not list the possible atrocities - your Honours can think of them, but there are many that would be possibly relevant to that provision.  So that is the position which existed for quite a while in New South Wales and practitioners, as I say, had quite a few options available to them. 

Now, it is against that background that we need to look at the 1995 amendments which are brought in – this is behind tab 7 - at the bottom of the first page your Honours will see that the legislature, in their wisdom, decided altogether to omit both sections 127 and 128 and they insert a provision, a new provision 127. Over the page - your Honours, I do not think need to worry about section 128 which is about stays. So what happens is 127 and 128 are repealed and then they are replaced by what we would suggest is an omnibus appeal provision, principally in subsection (1) of section 127. So that is what happens at that point.

There are then further minor amendments which your Honours have behind tab 8 at about point seven on the page, section 127 there is an insertion of the expression, “Judge’s judgment or order” instead of decision of a judge. Then a far more minor amendment behind tab 9 at about point three that one can appeal from a “Judicial Registrar’s” order as well as a judge’s order. That is not really that important, but we have inserted that for completeness.

Then finally one ends up – this is behind tab 10 – with the legislation as it existed at the time of this appeal, which on the second page your Honours will see the text of section 126 and relevantly the text of section 127(1). Your Honours will see again that the relevant text of section 127(1) at the time my client purported to appeal to the Court of Appeal states that:

A party who is dissatisfied with a Judge’s or a Judicial Registrar’s judgment or order in an action may appeal to the Supreme Court.

At the risk of emphasising what is a very simple proposition, we submit that my client is dissatisfied with the order or, if it be a judgment, the judgment entered in his action in the District Court and therefore he appeals to the Supreme Court.  The written submissions of the parties set out the arguments on construction and, in particular, if your Honours go to the document first filed in this proceeding entitled “Written Submissions of the Appellant”, we have set out at paragraphs 22 through to 27 the principal points which we make on construction.

Can I emphasise briefly some of those points.  First of all, the second reading speech, relevantly, is quoted at paragraph 27 of our submissions.  Justice Basten notes towards the end of paragraph 90 of his judgment that the second reading speech provides “no further elucidation” of the problem.

GUMMOW J:   What page is that?

MR REYNOLDS:   That is paragraph 90 which is in the appeal book at page 627.  We submit that this second reading speech, which of course is relevant because of section 34 of the Interpretation Act (NSW), was important because if your Honours read the text of it the proposal is that these three sections I started off with today, which are said to deal with appeals – that is not strictly accurate to a lawyer of course because section 127 dealt with applications for new trials – they say are unnecessarily complex. So the legislature wants to repeal them and replace them just with one provision. There is no alteration of the policy underlying the existing sections and, in particular, appeals from erroneous directions to juries are preserved.

So they are there underlining the proposition that what this is about essentially is reducing the, as they say, unnecessary complexity of these two former provisions in sections 127 and 128. There is no suggestion there of abrogating existing rights or rights as they existed previously to seek a new trial from the Court of Appeal.

Your Honours will also note in paragraph 90 of Justice Basten’s judgment the first sentence in the quotation from the explanatory note also makes the same point, that the proposed amendments are designed to “simplify the provisions of the District Court Act”.  That does not look much, we submit, like a provision that is designed, as we say, to do away with this right for a new trial.  We are talking about reducing complexity and simply replacing these two provisions in 127 and 128 by one, we would call it, omnibus provision which would enable appeals as before but on an even broader basis probably and also application for new trial to be brought per medium of an appeal to the Court of Appeal.

The second thing I would like to stress – and again I will not go through all of this – is the proposition in paragraph 23 of our submissions where we refer to the well-established proposition that a provision conferring jurisdiction is not to be read by imposing limitations which are not found in the express words, and we have referred to paragraph 17 of the decision of this Court in Australasian Memory Pty Ltd v Brien which goes on to say that cogent reasons must be advanced for reading down general words in such a provision.

Now, the Court of Appeal makes no reference to this proposition at all and we submit, with all due respect, advances no cogent reason at all for reading down the provisions of section 127 so as not to cover the appeal brought by my client.

Another point which is not made there but is made elsewhere in our submissions, I think ‑ ‑ ‑

GUMMOW J:   What do you say about Justice Basten’s reasons, going back to 627 and going over to 628, paragraph 94 in particular?

MR REYNOLDS:   That is the point I am dealing with right now, or was proposing to, and that is this question of absence of power to order a new trial or to set aside a verdict, which seems to be quite an important part of Justice Basten’s reasoning.  It is referred to in paragraphs 94 to 97, also I think at 82 and 87, and it seems to be a substantial part of his Honour’s reasoning.  We submit that there is a problem with that reasoning.

GUMMOW J:   That is why I referred you to Pelechowski and Grassby at the beginning this morning as to necessary implications to achieve an effective result.

MR REYNOLDS:   Your Honour, there are specific provisions, which I am about to refer your Honours to, which do give a power to set aside a verdict and to award a new trial.  Some, possibly all, of your Honours may remember that the original Supreme Court Rules that came in in 1970 were originally a schedule to the Supreme Court Act.  The rule I am about to take your Honours to was in that schedule, pretty much in substance in the same form that it was at the time of this appeal.

Now, your Honours should have a little collection of papers with “Supreme Court Rules 1970” on the front and the relevant rule – this is Part 51, Rule 22, sub-rule (4) – provides this power, as I say, that had been in there pretty well in substance in the same form since 1970. Justice Basten’s reasoning seems to be, “Well, if I am interpreting section 127 and there is an application to set aside a verdict and order a new trial then if there is no power to do those two things that is a reason why one would not read section 127 as covering applications for new trials”.

So there is that provision in the Rules, but Justice Rothman at paragraph 125 of the judgment also points to two other provisions which we have given your Honours. They do not deal with this issue of power in terms, but they are the next two pages. Your Honours will see at the bottom right‑hand corner there are page numbers of these extracts. Section 91 of the Supreme Court Act provides for giving judgment or making “such order as the nature of the case requires” and there is a similar provision in the Civil Procedure Act.  So that is a substantial part, we submit, of Justice Basten’s reasoning and we submit, with respect, that it is flawed because there were powers to both set aside verdicts and also to order new trials.

GUMMOW J:   What is the section in the Supreme Court Act that says although we have a new Act in 1970 we are continuing the Supreme Court as it started off in 1820?

MR REYNOLDS:   The continuance provision that Justice Windeyer referred to, I think famously, the number of which presently eludes me.  Justice Rothman refers, at paragraph 125, to sections 23 and 63.  I think it may be section 23.

GUMMOW J:   I think so, yes.

MR REYNOLDS:   Section 63 I think is the one about ‑ ‑ ‑

HAYNE J:   Section 22 is the continuance.

MR REYNOLDS:   Thank you, your Honour.  I am grateful for that.  If your Honours go back to our written submissions in-chief at paragraph 26, we refer to Justice Basten’s statement that it would be surprising if today there were no appeal at all from a jury verdict in a civil matter, which of course we rely upon, particularly where, as he said in a subsequent judgment in this case, that would create a lacuna in the appeal rights.

There is also of course, to state the obvious, the potential for grave injustice to litigants if one interprets section 127 as the Court of Appeal did. The practitioners in the District Court have been used for well over 20 years to being able to seek a new trial from the Court of Appeal without having to make any application to the trial judge. They simply allow the judgment to be entered and then bring their application to the Court of Appeal.

If we interpret the new section 127(1) so as not to permit those applications to be brought, the result is, as in this case, that, as the Court of Appeal held, a deserving litigant who had a right to a new trial fails outright because of lack of jurisdiction. One would expect that if that was the legislature’s intention, particularly with the possibility of such grave injustice, that the legislature would have made its intentions more clear.

Can I mention, if only possibly to satisfy your Honours’ curiosity, that there are provisions that are very similar to section 127(1) which apply in other States under which litigants bring applications for new trials as we understand it to their courts of appeal. In our little bundle there at page 11 we have section 79(1) of the District Court of Western Australia Act 1969 and your Honours will see that that provision is pretty well in substance identical with section 127, and that is how one makes an application for a new trial to the Court of Appeal in Western Australia.

My learned junior, Mr Anderson, tells me that under the District Court of Queensland Act 1967 which your Honours see at page 7 of our extracts under section 118(2) and (3) there is a provision again in substance in similar terms to section 127(1), under which litigants in the District Court seek new trials from the Queensland Court of Appeal.

Now, we have not been able to find any actual decisions on these two provisions, but I cannot resist the opportunity of saying that it is probably simply because the courts in those two jurisdictions have assumed that those provisions do provide jurisdiction and that no one has actually taken the point.

FRENCH CJ:   This kind of problem, I do not think, would arise in Western Australia.  I think to the extent that there is much defamation litigation, for example, it would happen in the Supreme Court and I cannot remember any instance of a case in which there has been a trial with a jury in civil litigation in the District Court.  That does not necessarily deal with it.

MR REYNOLDS:   No, it may be another reason, but there is one decision ‑ ‑ ‑

HAYNE J:   The reason in Victoria is that after the jury has returned its verdict there is always motion for judgment and it is a separate motion for judgment, which then yields a judgment of the court.

MR REYNOLDS:   Quite.  That was not always the position, though, in Victoria.  It has taken a fair bit of research, but there is one case which is very similar to this case.  It is not identical legislation, but in substance identical.  It is a decision of the Victorian Full Court called Sheehan v Park (1882) 8 VLR 25.

HAYNE J:   You can find authority for almost any proposition you want in the numbered Victorian Law Reports, Mr Reynolds.

MR REYNOLDS:   Your Honour, I was expecting a modicum of sympathy from your Honour.

HAYNE J:   No.  Mr Justice Tom Smith first pointed that out to me with some force.

KIEFEL J:   Mr Reynolds, as I understand it there was nothing to prevent, and probably it should have been the case that judgment should have been entered by the District Court judge.

MR REYNOLDS:   Yes, your Honour is picking up, if I may say so with respect, very fairly on what is a possible inadequacy in the drafting of the judgment order at page 581.  What happened I should say, as a matter of fairness to ‑ ‑ ‑

KIEFEL J:   I notice counsel applied for judgment at appeal book 573.

MR REYNOLDS:   ‑ ‑ ‑ both Mr Wheelhouse initially, and Mr Henskens ‑ ‑ ‑

KIEFEL J:   And the judge deflected the judgment into a verdict and that seems to be how it became a verdict.

MR REYNOLDS:   Yes, exactly. 

KIEFEL J:   There is no reason that the parties could not have gone back, I would have thought, and asked for judgment on the basis of the verdict.  They would have been entitled to a judgment, would they not?

MR REYNOLDS:   They were, and they said they were.  They both said they were, but the judge knew better.  On one view, they raise it with the judge and the judge said no, no judgment; this is a verdict.  But it is clear from the text of page 581 that the judge understands that this is a judgment and that is how ‑ ‑ ‑

KIEFEL J:   It is intended to have that effect; that is not what it is. 

MR REYNOLDS:   Exactly.

KIEFEL J:   But the parties could have corrected that, rather than in the process to the Court of Appeal.  The judge still had power to make the judgment accordingly if it was pointed out.

MR REYNOLDS: It may have been possible to make an application either under the slip rule or otherwise to the trial judge, but that was not done. At any rate, what we have here is a form of order, whether or not it be a judgment and, of course, section 127(1) uses the expression “order” as well as ‑ ‑ ‑

KIEFEL J:   All right.  Just for the purposes of testing what could or could not have happened in the District Court and the powers of the District Court judge, if the second defendant had moved for judgment, would there have been any basis upon which the first plaintiff could have submitted to the judge that judgment should not be entered upon the verdict because it was perverse, that being the ground of appeal later taken?

MR REYNOLDS:   There is no reason why, assuming no application is made under section 126, a judgment should not be entered because the effect of the answers by the jury to the questions is that the case is over because for a plaintiff to succeed in defamation he must first establish that the imputations are conveyed by the article.  Once the jury say the imputations are not conveyed by the article, then in substance that is the end of the case.

KIEFEL J:   You say that the judge has no power to enter judgment despite the verdict.

MR REYNOLDS:   In the broadest general sense, there are powers to enter judgment non obstante veredicto, speaking very generally, but there would not be any basis for that here.  For example, juries sometimes give verdicts in defamation cases and leave as a reserve to the defendant to argue the defence of qualified privilege, which is a matter for the judge.  In that instance ‑ ‑ ‑

KIEFEL J:   No entitlement to judgment would arise until the judge had determined the question of law, though.

MR REYNOLDS:   That is correct. 

KIEFEL J:   But I notice that in these proceedings there were applications for directed verdicts which were not successful, I think.  But perhaps that point has passed.  You cannot obtain a directed verdict on the basis that no reasonable jury could answer the question other than in one way.  At the point when the matter goes to the jury perhaps that point is lost.

MR REYNOLDS:   Yes, I think that may be right.

KIEFEL J:   I was just curious to understand whether or not there was nevertheless power, even though there are no residual legal questions for the judge to be dealt with before judgment, whether or not there was any basis upon which the parties could have argued that judgment should not be entered and therefore an appeal be available from the judge’s decision to enter the verdict notwithstanding.

MR REYNOLDS:   Of course, there are the provisions of section 126 – that is, to apply to the judge under either subsection (1) or subsection (2), but we say those are true alternative rights and the party may say, “No, I would prefer to exercise my rights of appeal to the Court of Appeal”.  I mean there would be very good practical reasons for that.  For example, if one is complaining about an inadequate direction which has been the subject of debate, a ruling and the judge then made a direction, one would not want to be hacking back through that issue – or a judge has heard argument about the rejection of evidence, has allowed the evidence in and that is over objection again redebating that point.  Many of these questions would be matters that the judge had already determined.

BELL J:   But you accept it would have been open to have moved under 126 contending that the verdict was perverse?

MR REYNOLDS:   I think that is right, your Honour.

BELL J:   I think that happens from time to time and District Court judges, in the defamation list, have ordered a new trial on that basis.

MR REYNOLDS:   They have.  There is no doubt about that, your Honour, and I do not, with respect, see any basis for disputing your Honour’s construction of section 126.

FRENCH CJ:   Having written the words, “Verdict for the second defendant” on the court record, was there anything further that the judge had to do to give effect to what was in substance a dismissal of the application or the claim?

MR REYNOLDS:   Ideally the judge should have entered judgment.

FRENCH CJ:   What does that mean?  What further does the judge do after having said, “Verdict for the second defendant” in order to enter judgment?

MR REYNOLDS:   The order is that “I direct the entry of judgment for the second defendant in the claim brought by the first plaintiff”.  It is traditionally said juries give verdicts, judges give judgments.

FRENCH CJ:   Yes, section 7A(2), as you point out – a judge himself or herself enters a verdict if there is an adverse finding on the capacity of the State to carry the relevant imputations and so forth.

MR REYNOLDS:   Which may be a curiosity, as I think your Honour Justice Gummow alluded to on the last occasion, saying that the provisions of section 7A may not have been drafted with ‑ ‑ ‑

KIEFEL J:   It might be rather in the nature of an anticipated directed verdict.

MR REYNOLDS:   Yes, one could possibly analyse it in that way.  The traditional thing that a judge does when there is an application for a separate trial and he holds that an imputation is not capable of arising or is not capable of being defamatory is he simply says that imputation will not go to the jury.  There are some cases on this.

FRENCH CJ:   But in the section we are construing he actually enters a verdict for the defendant under 7A(2).

MR REYNOLDS:   Technically speaking, what a judge is doing on a separate trial, as referred to in section 7A – he makes an order for a separate trial and it is essentially of the issue of whether the plaintiff’s case should go to the jury.  So he is in substance the trial judge, but where the factual substratum is clear – for example, with a newspaper article – he is in the same position that the judge will be at the trial and the judge at the separate trial therefore can proleptically say, “This imputation will not go to the jury”.  Now, there are cases that analyse this out, if your Honours would like them.

I think the last thing I was referring to was Sheehan v Park, and perhaps in the light of your Honour Justice Hayne’s comment I will not take your Honours to that in any detail, but it is a case pretty much on all fours with the present case, where under section 120 of the County Court Statute of 1869 the Full Court in Victoria found that an application for a new trial could be brought straight to the Full Court even though no such application had been made to the primary judge. The provisions of section 120, which your Honours do not have, are, we suggest, in substance the same as section 127.

Your Honours will recall that on the last occasion when this matter was listed I disclosed to your Honours that there was a line of cases on section 73 of the Constitution which, prima facie, were against my client. The supplementary written submissions by both parties have dealt with this issue and your Honours also have the submissions of the Solicitor‑General. The respondent seems to disclaim any reliance at all upon these cases, concedes that there is a different wording, a different context and that the section 73 has been read in light of a Privy Council practice which is not relevant here.

Having disclosed the existence of those authorities to your Honours, I am not proposing, unless your Honours would like to ask me some questions about them, to say anything further about them, although I understand Mr Gageler is going to entertain your Honours briefly.

I think, given that the notice of contention is no longer pressed, the only remaining thing that I need to do is to draw your Honours’ attention to some proposed orders which we have handed up this morning in the light of Dr Smagarinsky no longer being party to this appeal and the orders we seek are as set out in the document. 

HAYNE J:   Just before you sit down, Mr Reynolds, can I just take you back to the form of order that was taken out in the matter at page 581 and compare that with section 7A.  Just go first to paragraph 1 of the judgment or order at page 581 of the appeal book.  It is described as “Verdict for the

second defendant, in respect of the claim by the first plaintiff”.  On its face that would appear to be, whatever it is, a verdict, a judgment or an order, let us walk past that for the moment, a rather larger subject matter than the section 7A subject matter, is it not?

MR REYNOLDS:   Yes, your Honour, although once the 7A procedure is over and the plaintiff has failed, if I can put it generally, on all three imputations, then ‑ ‑ ‑

HAYNE J:   Then the action fails.

MR REYNOLDS:   Quite.

HAYNE J:   But in its terms paragraph 1 is directed to a disposition of the whole of the proceeding.

MR REYNOLDS:   I agree, if your Honour pleases.  If the Court pleases, those are my submissions.

FRENCH CJ:   Thank you, Mr Reynolds.  Mr Solicitor.

MR GAGELER: Your Honours, both parties disclaim any reliance on section 73 of the Constitution, but both parties make reference to it. In that context I seek to make two quite short points about section 73. The first is to refute the proposition, if it is put and if it is relevant, that under section 73 of the Constitution an appeal does not lie from a judgment that is founded on a jury’s verdict. That proposition appears to us to be highlighted in the respondent’s further submissions in a bolded passage in paragraph 4 of those submissions. It appeared to us to have been accepted in the terms of the appellant’s section 78B notice in paragraph 5 and it is a proposition that one can see gains a little bit of support from a couple of one‑line statements of single judges that we have collected in footnote 4 of our submissions.

In our submission, the proposition is in truth a conflation of two distinct aspects of section 73 of the Constitution, one founded on the nature of an appeal, the other founded on the nature of a judgment; both of those words being constitutional expressions. The word “judgment” in section 73 has been held on numerous occasions to mean no more and no less than an order made in the exercise of judicial power, whether interlocutory or final and whether founded on a jury’s verdict or not. That is a judgment.

The nature of an appeal, it has been held on many occasions and most recently probably in Mickelberg and Eastman (No 2) is, as used in section 73, an appeal in the strict sense, in the sense in which the Privy Council previously entertained appeals and in an appeal in that strict sense the court on the appeal does no more and can do no more than what the courts below should have done on the law, on the facts and in the circumstances before that court below.

It is when you put those two things together that where you have a judgment that is founded on a jury’s verdict an appeal lies from that judgment to this Court under section 73 of the Constitution. It is just that an attempt in that appeal to challenge the verdict of a jury would be futile if the court below made no error in accepting and giving judgment on that verdict to the jury.

That is, in our submission, the true explanation for Musgrove v McDonald 3 CLR 132 and it is really the explanation the Chief Justice gave in that case when you look at carefully pages 139 and 149. It is the headnote in that case where the conflation occurs and it is probably the source of the later confusion. But the explanation I have given emerges quite clearly in the judgment of Justice Dixon in McDonnell & East Limited v McGregor 56 CLR 50 at pages 53 to 54 and also in Dignan’s Case 46 CLR 73 at pages 109 to 110.

If your Honours have Dignan’s Case to hand the second point that I wanted to make emerges at the end of passage to which I have referred at pages 109 to 110. It emerges in the second sentence of the last full paragraph on page 110 and it is this. What has been left open by the cases and what, in our submission, should at least remain open is the possibility of the Parliament under section 51(xxxix) of the Constitution in matters falling within the original jurisdiction of the Court under sections 75 and 76, conferring power on the High Court to set aside or substitute a judgment founded on a verdict that goes beyond the power that would be exercisable by the Court in an appeal under section 73 of the Constitution.

In support of at least leaving open that possibility we simply wanted to say three things.  One is that it is an easier case than the possibility that has already been left open in Eastman (No 2) of Parliament legislating to allow the Court to receive fresh evidence in a matter covered by sections 75 or 76 in an appeal under section 73 of the Constitution and why it is an easier case than that is because it would involve a separate or parallel conferral of power in the exercise of original jurisdiction. It would not involve a supplementation and arguably a variation of the nature of the appeal provided for by section 73.

In Eastman (No 2) (2000) 203 CLR 1 at paragraphs 14 and 70 Chief Justice Gleeson and Justice Gaudron respectively saw it as being open to allow the court in a section 75 or 76 matter to receive fresh evidence. Justices McHugh and Gummow at paragraphs 163 and 196 respectively saw that as being problematic because it would involve, according to your Honour Justice Gummow and Justice McHugh, a variation of the nature of the appeal for which section 73 provided. My simple point is that one need not get into that debate here because simply allowing the court, in effect, to entertain an appeal by way of rehearing or an application for setting aside of a judgment founded on a verdict would be a conferral of separate original jurisdiction or power in original jurisdiction. It would not involve changing the nature of the appeal under section 73 on any view. That is the first point.

The second point is that there has never been any doubt about the ability of the Parliament under section 77 of the Constitution to confer on an intermediate Federal Court or an intermediate State court the power to conduct an appeal by way of rehearing or to entertain an application for a new trial.

GUMMOW J:   That could be important in this case if this action had been between two humans who are residents of different States.

MR GAGELER:   That is right.  It could well be covered by section 39 of the Judiciary Act and the jurisdiction being exercised would have been jurisdiction conferred or invested in the Supreme Court under section 77(iii) of the Constitution.

GUMMOW J:   That would pick up these State provisions we have been looking at to get it to the Court of Appeal.

MR GAGELER:   Yes, that is right, and there is simply no difficulty on the existing authority which goes back to Ah Yick in the very first volume.

GUMMOW J:   I think it follows from your submission that it could not have come here directly under 73(ii).  The District Court would be court exercising federal jurisdiction.

MR GAGELER:   Yes.

GUMMOW J:   There would not have been a direct appeal here I think you are saying.

MR GAGELER:   No, that is right.

GUMMOW J:   Because of these authorities about judgment, decrees, orders and sentences, is that right?

MR GAGELER:   It depends on how you interpret the document that emerged from the District Court.

GUMMOW J:   Yes, all right.

MR GAGELER:   If it is no more than a finding, which is the judicial version of a verdict, there could be no appeal from it.  If it is an order, then there could be an appeal from ‑ ‑ ‑

GUMMOW J:   May come back to the matters Justice Hayne was raising with Mr Reynolds.

MR GAGELER:   Yes, it might, and I do not want to go there particularly.

GUMMOW J:   Yes.

MR GAGELER: The only other thing I wanted to say here is that it is arguable that the Parliament has in fact given this Court original jurisdiction in matters under sections 75 and 76 of the Constitution to entertain an application for a new trial in respect of a judgment of a single Justice of this Court founded on a jury’s verdict. I do not know if your Honours have to hand the Judiciary Act, but your Honours might simply note that under section 30(c) the High Court is given original jurisdiction “in trials of indictable offences against the laws of the Commonwealth”, not often invoked, but there it is, and it has always been there.

If your Honours then look to section 34, there is what can be read and, in our submission, ought be read as a conferral of jurisdiction and not simply an acknowledgement of the jurisdiction already conferred by section 73 of the Constitution and the reference is to “hear and determine appeals”. If your Honours turn back to section 2, the word “appeal” – which appears at the end of section 2; it is not in alphabetical order – is defined to include an application for a new trial. And then under section 36, to complete the trail, you can see that the High Court is given power to grant a new trial – an interesting bit of history, perhaps, but it is still there, if the Court pleases.

FRENCH CJ:   Thank you, Mr Solicitor.  Yes, Mr Wheelhouse.

MR WHEELHOUSE:   May it please the Court.  Your Honour has made a plea from written submissions that our first application is for a rescission or to have special leave granted revoked on the basis of the amending legislation passed in New South Wales after the grant of special leave.  May I take you to that amending legislation.

GUMMOW J:   You are pressing that application, are you?

MR WHEELHOUSE:   Yes. 

HEYDON J:   Is it not a grave injustice to the appellant if his arguments are correct?

MR WHEELHOUSE: I thought long and hard about the answer to the merits question, your Honour. The answer is no. There are, perhaps, three reasons for that. The first is the Court here is not so much concerned with merits in attempting to find jurisdiction so as to meet the merit claim. The court is concerned here with the cold position of determining whether jurisdiction exists. Our submission is that it did not. Secondly, it is not as if the appellant was precluded from making an application for a new trial based on the perversity of the jury’s verdict derived from the inadequacies of the summing‑up. That right plainly existed in section 126(2) and is generally exercised with alacrity in defamation trials such as this in the District Court. It was a procedure that had been in place since 1995, when sections 127 and 128 of the District Court Act 1973 were repealed and replaced ‑ ‑ ‑

GUMMOW J:   Are you saying that on a special leave application we have no interest in the justice of the particular case?

MR WHEELHOUSE:   No, I am not saying that, your Honour.  What I am saying, your Honour, is that ‑ ‑ ‑

GUMMOW J:   That would fly in the face of (a) common sense, and (b), section 35A of the Judiciary Act.

MR WHEELHOUSE:   I appreciate that, your Honour.  What I am putting, your Honour, is that this is a case where events are thrown up which will not occur again.  Contrary to my learned friend’s submission, none of the legislation ‑ ‑ ‑

GUMMOW J:   That was true in Mr Mallard’s case, too, to take another example from another field of discourse.

MR WHEELHOUSE:   That is right.  But this is a case where there was a procedure that had been in place for 20 years; it has been the subject of other cases, Sonda v Signorelli is one I point to in my written submissions. So it is not as if the appellant has not had a reasonable opportunity by adopting the correct or usual practice to have the point he now wishes to ventilate dealt with in the usual way. In other words, your Honour, there was every opportunity at the conclusion of the trial, when the jury’s verdicts were brought in, for there to be an immediate application for a new trial and then all the parties would have had the benefit of a ruling which would have said “Yes, go back and we will have a new trial”. We could have discussed then the parameters of a new trial. If there had been an erroneous judgment following that application then the powers that reside plainly in section 127(1) could have been availed of.

What I am saying, your Honour, is that this Court should not, of course, overlook merits but it should not, in this particular case, let merits dominate the situation where there was an effective procedure in place and it was typically followed in the District Court in this type of case.  I hope I have not appeared too recalcitrant in that answer, your Honour.

BELL J:   Accepting that mechanism was one that was open and that some judges in the District Court have acceded to applications of that character in recent years, nonetheless, Mr Wheelhouse, it was common, was it not, in the District Court, when a jury returned answers denying either that the imputations were conveyed or that they were defamatory, for the judgment to be given in that court and appeal rights taken to the Court of Appeal, as would happen in proceedings in the defamation list in the Supreme Court?

MR WHEELHOUSE:   I am unable to say with any certainty, your Honour, that the practice was often brought into place because aberrant jury verdicts are quite rare, but, generally speaking, in the 7A arena an aberrant jury result at trial in the District Court normally results in the party affected by such a result making an application under section 126(2).

Our historical view of the history of the District Court practice is a little different to my learned friend’s.  We see it effectively in four clear phases, from the 1858 Act, basically all the way through to 1973.  The District Court, being a court of limited jurisdiction, always maintained the practice that appeals were from errors of law or incorrect admission of evidence or incorrect rulings, but applications for new trials were made to a trial judge, as they had been historically at common law, and this is explained by Justice Windeyer in Nominal Defendant v Hook.

But in 1973 the District Court Act came into place, then there was a slight change of procedure.  Indeed, the word “decision” was first employed and they changed that.  But our position is that a clear phase occurred in 1995 when the legislature decided to go back to the traditional position – that is to say, to draw a clear line between applications for new trials and appeals from erroneous directions and judgments.  I will take the Court in some detail to that in a moment.

The long period of time during which there was this dichotomy – that is to say, applications for new trials in the first instance being made to a trial judge and appeals from misdirections or incorrect admission of evidence or errors of law going to the Supreme Court – had only been broken for that short period of time between 1973 and 1995 and during that period of time there had been substantial amendments to the Supreme Court Act which affected the whole manner in which the Supreme Court dealt with appeals because during that period of time section 75A was enacted.

So, your Honours, the emphasis that my learned friend places, we say, is not quite consistent with the historical position which is to recognise the division and what happened between 1995 and the date when this trial came on was that a procedure had reverted back to its traditional position, and that is reasonably plain from the second reading speech that Justice Basten refers to and it is certainly, we would say, reasonably plain from the explanatory note, but I will come to that.

May I grapple with the application for decision of the grant of special leave by at least taking the Court to the new legislation which is behind tab 11 of my learned friend’s white book. What the New South Wales Parliament did was enact by the Courts and Crimes Amendment Act 2000, I think, substantial changes to sections 126 and 127 to ensure the legislation maintained two rights, that is to say a right to apply to the trial judge and to apply to the Supreme Court for a new trial and that is apparent from section 126(3). Then when it goes over the page to section 127 there is a reformulation of 127. Then at 127A it makes it expressly clear that there is an appeal in respect of “proceedings with a jury” in the District Court and a party is entitled to apply for a new trial, following such proceedings.

The new section – section 127A – has entirely remedied the problem that this case has thrown up. Consistent with the position this Court has often taken in relation to the consequences of amending legislation to leave we would say now, your Honour, that the question that the Court is now grappling with will no longer arise in New South Wales by reason of section 127A and, therefore, there is no continuing point of general importance.

Your Honour, of course I have referred in my submissions to a number of cases which deal with the approach taken by this Court in relation to special leave applications where there has been amending legislation.  I do not need to take the Court in detail to them, but I think I have referred to Baxter v New South Wales Clickers Association, Australian Airlines Ltd v Commissioner of Stamp Duties and Klein v Minister for Education.  There is a list of them which I bring to the Court.  Your Honours, may I now return to the substance of the matter? 

GUMMOW J:   The question is whether we get into the substance of the matter.

MR WHEELHOUSE:   Your Honours, as I was indicating a moment ago ‑ ‑ ‑

FRENCH CJ:   Just bear with us a moment, Mr Wheelhouse.

MR WHEELHOUSE:   Certainly.

FRENCH CJ:   Mr Wheelhouse, the Court is of the view that the application for rescission of the grant of special leave should be refused.

MR WHEELHOUSE:   May it please the Court.  Your Honours, as I was saying a moment ago, in broad terms the historical summary of the New South Wales legislation divides conveniently into four periods, that is to say, 1858 to 1973, during which there was a strict dichotomy maintained requiring applications for new trials to be made to a trial judge and there being a heavily restricted right of appeal limited to errors of law, misdirections and incorrect rulings on evidence.  Other restrictions applied in relation to the quantum of the claim subject of the appeal. 

After 1973, with the enactment of the new legislation, and to 1975, the District Court Act 1973 preserved the former rights and added an additional right of appeal to the Supreme Court for a new trial. That appeared in section 127(2). If I could take your Honours to the white folder, tab 5 I think is the source of that:

On an application under this section in respect of an action, the Supreme Court may order a new trial of the action or of any issue therein or may refuse to make such an order.

So, your Honours, the position after the 1973 amendments was that duality of rights arose.  In the period 1975 to 1995 applications for new trials to the Supreme Court were confined to jury trials only.  That arose because obviously amendments to the Supreme Court Act enabling appeals to be by way of rehearing – and in this period the old restrictions were abandoned and the general rights of appeal extended.  We say in the period 1995 to 2008 legislation returned to its historical position in that it removed the right to make an application for a new trial.

GUMMOW J:   Why would it have done that?

MR WHEELHOUSE:   Your Honour, it is difficult to glean the legislative intention from the extrinsic material, either the explanatory note or the second reading speech, but it may well be that the legislature took the view that it was simplifying the position by returning the position to the historical rights, namely, ensuring that applications were made in the first instance to the trial judge, it being a more efficient way to do it, but preserving particularly rights to appeal in respect of non‑admission of evidence and misdirection.  If your Honours go to that portion of the second reading speech referred to by my learned friend, and the explanatory note which is 627 of the appeal books.

GUMMOW J:   We need to know at some stage, are you supporting the reasoning of Justice Basten?

MR WHEELHOUSE:   I am, your Honour.

GUMMOW J:   Are you supplementing it?

MR WHEELHOUSE:   I am slightly, your Honour, because there is a minor error in Justice Basten’s position and I wish to indicate ‑ ‑ ‑

GUMMOW J:   If you are supporting it, you have to deal with the criticisms directed to it by your opponent.

MR WHEELHOUSE:   I am trying to do that now, your Honour.  What my learned friend says in relation to the second reading speech and the explanatory memorandum, as set out in Justice Basten’s decision at 627 that there is guidance from that extrinsic material, the intention of the legislature, was to return, not to abrogate rights, but to merely simplify.  In our respectful submission, Justice Basten is correct at page 627 of his judgment at paragraph 90 when he said that there is no clear guidance from the explanatory note to the 1995 amendment.  That is quite clear in the last sentence where it says, “In addition ‑ ‑ ‑

GUMMOW J:   Yes, we can read that, but Mr Reynolds said there was material in the speech that you took us to which the Court of Appeal did not mention.

MR WHEELHOUSE:   Your Honour, we have a copy of the second reading speech and what the second reading speech states is, your Honours, what appears to have been understood by the legislature was what was preserved by the amendments were erroneous directions to juries and like acts rather than what was preserved was the right to apply for a new trial directly to the Supreme Court.  If I may read that portion of the second reading speech out, your Honour:

It is proposed that sections 127, 128, and 130 of the District Court Act 1973, which deal with appeals to the Supreme Court and which are unnecessarily complex, be repealed and replaced with one provision. The proposal does not alter the policy underlying the existing sections. Appeals from erroneous directions to juries are preserved and a provision will be retained, analogous to section 128(5b), which prevents a litigant, once a hearing has commenced, from seeking leave to appeal from an interlocutory order, thereby disrupting the trial.

So it would appear, your Honours, from the second reading speech that there is not a focus on retaining the direct right to appeal and apply for a new trial to the Supreme Court, but more a focus on maintaining the old position which was to preserve appeals in respect of erroneous judgments and directions.

FRENCH CJ:   I notice that appears under the heading in the second reading speech:

Rationalise provisions relating to appeals from the District Court and the Dust Diseases Tribunal to create essentially uniform provisions.

The paragraph you were quoting from goes on to talk about the Dust Diseases Tribunal Act.  So the uniformity there is in relation to appeals from those two bodies, the District Court and the Dust Diseases Tribunal, is that right?

MR WHEELHOUSE:   Yes.  The most significant matter in support of Justice Basten’s position ‑ ‑ ‑

HAYNE J:   Just before you come to develop that, can I just understand whether there is an unstated premise in your argument.  Does your argument depend upon drawing a distinction between an application for a new trial and other forms of challenge to what has happened at trial that confines applications for new trial to the single ground of perversity?

MR WHEELHOUSE: No, your Honour. Our position is this, that to the extent that there is some judgment exercised by the trial judge either by way of a direction or the making of an order – that is to say, there is some discretionary activity available to the trial judge in relation to the conduct of the trial which he exercised by making a judgment or order – then section 127(1) provides rights of appeal from that. But what section 127 precludes from the jurisdiction of the Supreme Court is applications for new trials based on perversity or jury verdict.

HAYNE J:   So an application for new trial may be made to the Supreme Court for a variety of miscarriages at trial but not, you say, that species of miscarriage in which the jury, either from misapprehension or disregard of the judicial direction or not properly appreciating and considering the evidence, finds a verdict that is unsatisfactory?

MR WHEELHOUSE:   Yes.

HAYNE J:   Why would one draw a distinction of that kind against a background of history of applications for new trial that, if we are going into matters of history, goes back before the Common Law Procedure Acts in Britain?

MR WHEELHOUSE:   Your Honour, first, a verdict by a jury, in our respectful submission, has, generally speaking, not been a source of appeal in circumstances where a judgment has exclusively resulted from a deliberation by the jury.  In other words, where a judge, by the jury’s finding, either it being a question of fact or a general verdict or a special verdict, is not authorised to do otherwise than enter judgment.  That goes back, as Justice Windeyer explains in Nominal Defendant v Hook, to the old procedure whereby judges sitting en banc were not prepared to disturb jury findings unless there was some error of law that produced that finding.

HAYNE J:   But the court en banc would intercept the postea and direct a new trial if miscarriage was shown.  Now, one particular species of miscarriage was that which we by shorthand refer to as “perverse verdict”, but other species of miscarriage included misdirection to the jury, did they not?

MR WHEELHOUSE:   My understanding of the historical position in relation to postea was that the postea always contained a statement attributed to or given by the jury that a verdict should be entered and consistent with the facts as found by the jury as those facts are correctly determined by legal principle.  So, in other words, the postea was typically an instrument of the recording of the jury’s finding of fact containing an invitation to the judges to act upon those findings of fact in accordance with such legal principles as may be correct.  That process got subsumed into the procedure whereby verdicts could not be overturned by judges authorised to receive them and act upon them.

HAYNE J:   Some of the history is recorded by Thayer in A Preliminary Treatise on Evidence (1898), particularly at pages 241 and following by reference to some judgments of Lord Blackburn.

MR WHEELHOUSE:   Your Honour’s learning is far beyond mine.  I have taken my learning essentially from the cases that I have cited.  Your Honours, can I return to my point.  What Justice Basten is saying at 627, lines 10 to 20 is that the 1995 amendments, having adopted the expression “decision of the Judge” which became “judgment or order” in 1996, indicated a legislative intention to confine appeals to the Supreme Court where there had been an act of judgment or a decision based on the facts by the judge because, as he suggests, there could be no other plain explanation for those words.

So in response to my learned friend’s position in criticism of Justice Basten by saying his Honour failed to recognise by properly examining extrinsic material that the intention of the legislature of New South Wales was not to abrogate the prior policy which gave rights of appeal to the Supreme Court of New South Wales against jury verdicts, in my respectful submission, Justice Basten is correct when he says the extrinsic materials do not really assist because they are ambivalent because, as I have indicated, they seem to refer to the fact that appeals from erroneous directions to juries are maintained. 

If one looks at the actual words used as a source of the intention of Parliament, it is difficult to escape the proposition that in 1995 Parliament used the words “decision of the Judge” and in 1996 “Judge’s judgment or order”, the intention was, as part of the simplification process, to limit appeal to the Court of Appeal to those circumstances where there had been an active participation by a judge and by which a judgment of his is produced and a decision of his is produced rather than him acting on the authority of the jury and recording a verdict or judgment as the case may be.  So that is the first matter, your Honour.

In my respectful submission, Justice Basten’s approach in looking at the New South Wales legislation in terms of its legislative history is consistent with the manner in which courts grapple with the District Court legislation from time to time.  It does produce a complex legislative history.  Your Honour, a good starting point for that discussion is Justice Windeyer’s decision in Nominal Defendant v Hook (1962) 113 CLR 641 which is the very passage that Justice Basten refers to at paragraph 85 of his judgment at 624.

His Honour commenced the judgment by saying this case turns on the effect of sections 98 and section 142 of the District Court Act.  Those sections are in essential terms the same as they were in sections 72 and 94 in the original District Court Act 1858.  All those sections are in the white folder.  Counsel for the appellant said that in operation the two provisions had consequences that he described as curious:

But the policy of the Act is plain.  It is that a District Court is to dispose finally of the cases which come before it, except that where more than ten pounds is involved there is an appeal to the Supreme Court, but only on a point of law.  Applications for new trials and for setting aside judgments obtained irregularly and fraudulently are to be made to the District Court judge, not to a superior court.  They are to be disposed of finally in the District Court unless they involve some question of law. 

So his Honour Justice Windeyer in Nominal Defendant v Hook, in trying to determine the effects of these sections, sees the underlying policy which we say is reintroduced by the 1995 amendments: 

These are derived ultimately from the English County Courts Act passed before the Judicature Acts.  They thus still reflect the fundamental common law distinction between a motion for a new trial and an appeal to correct error of law.  An application for a new trial was made to the court from which the judgment issued.  An appeal on a question of law was bill of exceptions –

et cetera.  His Honour then goes through the common law history, which I am sure Justice Hayne is well familiar with.  Further down:

Under s 98 a new trial may be granted by the District Court judge on any ground of fact or of law that would justify a common law court in banc granting a new trial of an action that had been tried at nisi prius. 

Further down his Honour says, turning to section 142, it enables an appeal from the District Court to the Supreme Court by a party aggrieved by the:

ruling, order, direction or decision of the Judge in point of law, or upon the admission or rejection of any evidence –

There is no appeal on an issue of fact.  That position, namely, that there was no appeal on issue of fact, was consistently maintained through the various amendments excepting that short period that my learned friend has referred to. 

GUMMOW J:   What is the significance, if you are looking at matters of history, of the consideration that over a long period now the New South Wales Parliament has augmented the jurisdiction of the District Court both in the range of subject matter and in the quantum as claims that can be entertained?

MR WHEELHOUSE:   It has, but at the same ‑ ‑ ‑

GUMMOW J:   There are many cases that, at the time Justice Windeyer was writing that judgment, would be tried in the Supreme Court only are now tried in the District Court.

MR WHEELHOUSE:   By reason of their quantum and, of course, that is affected by inflation ‑ ‑ ‑

GUMMOW J:   And they have equity jurisdiction too.

MR WHEELHOUSE:   Limited equity.

GUMMOW J:   Yes, I know, but they have some. 

MR WHEELHOUSE:   It can give them Mareva and some interim preservation orders ‑ ‑ ‑

GUMMOW J:   In other words, it has got more important.  Why would you then readily construe an appeal provision as constricting the appeal avenue to the prejudice of litigants who previously would have gone to the Supreme Court? 

MR WHEELHOUSE:   Well, because, your Honour, the emphasis on the District Court has been one of being a trial court and the Parliament, having seen that the District Court should be the pre-eminent and largest trial court in the State for perhaps reasons of policy and efficiency, has determined that issues derived from aberrant trial results should be dealt with in the first instance by the Court itself rather than the Court of Appeal.  There is a logical rationale to it, your Honour.

HAYNE J:   Or is the alternative understanding of these provisions one which focuses upon the distinction between the relief that is ultimately granted?  By that I mean this.  Whichever version of the legislation we go to, but if we go to the legislation as it stood at the time relevant to these matters we find section 126 dealing with orders for new trial.  We find in 128 appeals on certain specified grounds.  What a 128 appeal may yield is, amongst other things, new trial.  It may yield also final judgment.

MR WHEELHOUSE:   Yes, in those particular types of matters they are referred to.

HAYNE J:   Those particular species of miscarriage that have occurred at trial.

MR WHEELHOUSE:   In those classes of cases, your Honour.  That is what Chief Justice Gleeson came to grapple with in Clutha, of course, which I am going to take the Court to in a moment.

HAYNE J:   But when we are concerned with 126 and also with the equivalent provision for application to the Supreme Court for new trial, we are concerned only with applications for new trial and it is not open on such an application to bring the action to its final conclusion.  Why would one limit the grounds for ordering a new trial according to the court to which the application is made?

MR WHEELHOUSE: Your Honour, section 128(2A) is a difficult section. I would reel from seeing some underlying policy issue emerging from that section. I will take the Court to Clutha in a moment.  To answer Justice Gummow’s question and your Honour’s question, there was never an abrogation of the general policy that the District Court was a court of limited jurisdiction.  There has been consistently a maintenance of that position.  Typically, because of the nature of the District Court being a court of limited jurisdiction, analysis of the source of jurisdiction derived from the District Court Act has always had tight regards to the precise words utilised giving the grant of jurisdiction.  It stands in great contrast to the Supreme Court of New South Wales, a court of inherent jurisdiction, and a superior court of record.

So I submit that the clearest response I can give to your Honour’s question is that the underlying policy to the District Court has been maintained by the legislation, that is to say, it is a court of limited statutory jurisdiction, it has always been perceived as having strict limits in relation to the manner in which it can deal with matters and it has always been seen as a court which has limitations on the rights of parties to appeal because section 81 of the Act has always been there, which is that the basic underlying principle of the Act is to bring finality to litigation in the shortest possible way rather than to attenuate litigation by general grants of power to appeal.  May I now take the Court to Clutha 18 NSWLR 86, please.

GUMMOW J:   I am just looking at section 44 of the District Court Act, reprint No 11.  Is that the right reprint number?

MR WHEELHOUSE:   I have lost track of the reprint numbers, your Honour.

GUMMOW J:   Of 7 March 2006.  Extraordinarily wide common law jurisdiction.

MR WHEELHOUSE:   Except as a quantum restriction.  Again, your Honour, it is a legislative conferral of specific power.

GUMMOW J:   Anyhow, I took you off your course.

MR WHEELHOUSE:   Not at all, your Honour.  I want to be able to respond to what you are saying.  If your Honour examines the limited equity.....the District Court can provide, they are quite strict.  For example, they cannot issue prerogative writs and the like.  I was taking the Court to Clutha 18 NSWLR 86.

This is a case dealt with by the Supreme Court of New South Wales sitting as five judges, presided over by Chief Justice Gleeson as he then was, because there was a significant discussion in the cases about the limits of section 128(2A), which was enacted as part of the same group of sections that your Honours are dealing with here. His Honour says at page 89:

The matter thus involves important issues both as to the scope of appellate review of decisions made in the District Court and as to the approach which this Court should take to reconsideration of its earlier decisions.

The second issue, the stare decisis issue, of course, does not arrive here, but what the Court here is closely examining is the scope and nature of appellate review.  His Honour points to the – at B at 89:

The relevant statute is the District Court Act 1973. The provision in question is one that was included in that Act by amendment in 1975. It is agreed on all sides that the meaning of the provision is unclear. The uncertainty results from the adoption by the legislature, in 1975, of a verbal formula for describing the scope of appellate review of District Court decisions which was significantly different from the formula used, for example, in the Supreme Court Act 1970 to establish rights of appeal to the Court of Appeal of the Supreme Court from single judges of the Court or, to give another example, in the Commonwealth Constitution to describe the appellate jurisdiction of the High Court with respect to judgments of the Supreme Court of a State.

Taking guidance there with one’s reasons why it took the view that the word “judgment” in section 73 of the Constitution may not necessarily assist in the construction of the expression, “Judge’s judgment or order”:

The legislature chose to adhere to language which was in the District Court Act 1973, prior to 1975, and which had its origins in a scheme of appellate review of District Court proceedings radically different from that which existed within the Supreme Court in relation to appellate review of decisions of Supreme Court judges. The 1975 amendments were explained to Parliament by the responsible Minister as being aimed at producing a closer correspondence between rights of appeal in relation to District Court decisions and rights of appeal in relation to Supreme Court decisions, but that explanation did not address the critical question which soon afterwards arose for decision, that is to say, the question of how close the correspondence was to be. One thing is clear. Whatever its particular intention, the legislature chose, when it was amending the District Court Act in 1975 not to follow the model which was available to it in the Supreme Court Act 1970, and elsewhere, as a method of defining rights of appeal. The legislature, in 1975, at a time when it was undoubtedly intending to amplify rights of appeal from the District Court to the Supreme Court, chose to employ a modification of the historical form of words which had been employed in relation to different, and much narrower, rights of appeal.

So there is some substance in what Justice Gummow says from those words. There may have been some form of legislative intention to expand rights. At page 90, C to D, in his analysis of section 128(2A) the Chief Justice says:

Before turning to the statutory context, and the relevant history ‑ ‑ ‑

GUMMOW J:   Well, just looking at page 91 there.

MR WHEELHOUSE:   At 91, C to E.

GUMMOW J:   Yes, 91D said “claims up to $100,000”.  Well, it was 750,000 at the time we are looking at the Act.

MR WHEELHOUSE:   Well, it was $20,000 at one stage, your Honour, so it has grown in quantum.

GUMMOW J:   All I am saying is it has got grander and grander.

MR WHEELHOUSE:   It has, your Honour, but that may be because money is worth less and less.  Your Honour, may I take you to the top of 91 where he says:

There are two important features of the District Court which form an important part of the background to the present problem.  The first concerns the nature of limitations on the Court’s jurisdiction.  The second concerns the history of provisions concerning appellate review of the District Court’s operations.

The District Court is a court of limited statutory jurisdiction.

Your Honour, Justice Gleeson said that at a time when the appellate rights sections – that is to say 126 to 130 of the District Court Act - were at their most expansive:

Its primary jurisdiction to hear and determine civil claims is, subject to one important qualification, limited by reference to the money value of the claim –

His Honour refers to it.  Further down at E he says:

Being a court of limited statutory jurisdiction, the District Court, like earlier District Courts, is amenable to review of its proceedings by this Court through the exercise of the modern equivalents of the prerogative writs.

In other words, your Honour, he emphasises the limited nature.  At page 92 of a judgment between B and E ‑ ‑ ‑

GUMMOW J:   What Chief Justice Gleeson says on page 91 around letter F is no longer true.  It was true in 1989, but I do not think it is true now - “modest amounts of money”.

MR WHEELHOUSE:   Well, your Honour, they have never given it an unlimited jurisdiction.

GUMMOW J:   Unlimited as to any motor accident claim.

MR WHEELHOUSE:   If the parties consent, I think, and more recently limitations were contained in the uniform Small Claims Act, which affects the overall policy, your Honour.  But, your Honour, may I return to the passage at 92: 

This legislative scheme was similar to that which had existed in the District Courts Act 1858 and the District Courts Act 1901. Certain features are to be noted. The significance of the use of the definite article before the word “ruling” which re‑appeared in the1973 legislation, but was altered to the word “any” in the new provision contained in the 1975 amendments, will be referred to below. The subject matter of potential appeals was limited to questions of law, or the admission or rejection of evidence. Decisions of fact were not the subject of appellate review. Consistently with that approach, there was no general right of appeal against a judgment or order of a District Court, but, instead, an aggrieved litigant could proceed by special case or notice of motion complaining to the Supreme Court that a District Court judge had made a ruling, order, direction or decision which was erroneous in point of law, or had wrongly admitted or rejected evidence.

FRENCH CJ: All this goes to the construction of the words “judgment or order” in section 127?

MR WHEELHOUSE:   Yes, your Honour.  It goes ‑ ‑ ‑

FRENCH CJ:   Whether they extend to the “entry”, to use a neutral term, verdict for the second defendant.

MR WHEELHOUSE:   Yes, your Honour.  I am going to deal with that point in a moment if I may.  What I am emphasising by taking the Court to these various decisions is that the legislative context is one which is dominated by firstly, a strict reading of the words “granting jurisdiction” and, secondly, a profound notion that the District Court is a court providing limited rights of appeal - from which there are limited rights of appeal, it being a court of limited jurisdiction.

Your Honour, in my respectful submission, cases such as Pelechowski that Justice Gummow referred to do not really assist the court.  Those courts deal with the extent of powers or implied powers to provide remedies once jurisdiction is granted and that is quite plain, in my respectful submission, from the page that Justice Gummow referred to at 451 and other cases.  So general statements such as those that my learned friend has referred to relying on sections such as 23 of the Supreme Court Act do not really assist because ‑ ‑ ‑

GUMMOW J:   You do not need it to rely on it.  Your opponent does not need to rely on that line of authority because he relies on Rule 22 of the relevant part of the 1970 Supreme Court Rules.

MR WHEELHOUSE:   Section 23 I understood he was putting forward, your Honour.

GUMMOW J:   What can be done on appeal.

MR WHEELHOUSE:   Your Honours, for example, sections 63 and 91 of the uniform Civil Procedure Act are directed to the powers that can be exercised as part of the inherent jurisdiction of a Supreme Court once jurisdiction is found to have been granted.  They do not have the reverse effect because the grant of jurisdiction, in my respectful submission, is entirely expressed in words contained in the District Court Act.

GUMMOW J:   I understand that.  This hare starts running in this context.  It is said, I think, at some stage or other in this mass of material we have been given, you cannot rely on the District Court Act sections 127 and 128, or whatever it is, because it will get you to the Supreme Court but then it will not empower the Supreme Court to do all the sorts of things it has to do to effectively deal with the subject, because it is not a section 75A appeal, for example. In response to that, the answer is no, it is not some crippled creature that is created because of Rule 22. Now, that is either right or wrong.

MR WHEELHOUSE:   Your Honour, I accept that once the jurisdiction is found in the Supreme Court, then the court in the exercise of that ‑ ‑ ‑

GUMMOW J:   What I was putting to Mr Reynolds was, even without Rule 22 the mere statutory conferral of this new species of jurisdiction would carry with it what was necessary to make it effective, even without 22.  He says, “Don’t worry about that because I’ve got 22”.

MR WHEELHOUSE:   My submission is that one has to get a grant of jurisdiction before the Supreme Court rule can apply.

GUMMOW J:   That is right.  The question is, does this section grant it?

MR WHEELHOUSE:   The answer is no, because it uses the expression “judge’s judgment or order”.

GUMMOW J:   All right.  We are back where the Chief Justice was asking you as to our destination.

MR WHEELHOUSE:   We say, your Honours, that once what the jury did was understood to be a verdict, it could never come within the expression “judge’s judgment or order” and there are a number of reasons why the Court would find the answer to the questions by the jury were verdicts and not really answers to questions.  In our respectful submission, it is not necessary to characterise them as a general verdict or a special verdict, it is sufficient if one characterises them as entitling the second defendant to a verdict.

FRENCH CJ:   Just before you go to that, can I understand, because I do not want to, as it were, trivialise the history that you have taken us to, is it correct to say that the proposition your are putting to us is that these words “judgment or order” have to be read down to exclude a verdict, having regard to the limited jurisdiction of the District Court and the history of limited appellate rights in relation to it?  Is that the thrust of what you were putting to us previously?

MR WHEELHOUSE:   Almost, your Honour.  I say that the historical context says that one reads the words reasonably strictly and literally rather than implying into them a general power.

FRENCH CJ:   I just want to make sure that that is the real fact.  It is just those three words. 

MR WHEELHOUSE:   Yes.  So, in other words, what the history of the authorities shows us is that the Court has examined the jurisdiction of the District Court by close adherence to the words used to define the grant of power because it is set in the background of the District Court being a court of limited jurisdiction.

FRENCH CJ:   Yes, right.  I think I understand the point.  I just wanted to make sure that I was ‑ ‑ ‑

MR WHEELHOUSE:   We say here, your Honour, these words do not result in a general grant of power because they say “judgment or order” and, therefore, one has to look ‑ ‑ ‑

FRENCH CJ:   It is not a question of whether they result in a general grant of power, it is a question of whether the grant of jurisdiction defined by reference to “judgments or orders” extends to a verdict or an order, an entry, if you like, is again a neutral term, of the kind which appears on the court record under the heading “Judgments/Order”.

MR WHEELHOUSE:   Yes.  Your Honour, our submission is that judge’s judgment implies some active judgment on the part of the judge, not merely responding to the authority given by the jury’s answers where he has no discretion to answer ‑ ‑ ‑

KIEFEL J:   In the case then of a jury returning answers under section 7A, which some might think are in the nature of a special verdict, where the judge has left to determine the questions of law relating to the defences and the judge determines those questions and enters judgment, would there be an appeal from such a judgment and, if so, would the appeal extend to the jury’s verdict? 

MR WHEELHOUSE:   Your Honour, a jury’s answers to questions that does not result in a ‑ ‑ ‑

KIEFEL J:   The judgment would have been a judgment upon the jury’s verdict so given but by having regard to and determining any defences if those defences failed and judgment was entered for the plaintiff.

MR WHEELHOUSE:   The direct answer to your Honour’s question is that there would be an appeal in relation to any judgment in relation to the defences because that is an act by the judge.

KIEFEL J:   So you have an appeal but split issues.

MR WHEELHOUSE:   Yes.  That is the nature of the legislation.

KIEFEL J:   You are limiting it then to an appeal on a question of law and not of fact?

MR WHEELHOUSE:   It all depends on whether the judge went on and heard other factual questions ‑ ‑ ‑

KIEFEL J:   But the jury’s verdict would be effectively the finding of fact.

MR WHEELHOUSE:   The finding of fact there would be (a) the defendant published the material, (b) the material conveyed the imputations and (c) the imputations were defamatory.  The consequence that I am saying is not aberrant.  It results from this particularly awkward piece of legislation, which is a section 7A Defamation Act legislation.  May I address one or two comments about section 7A in a moment.  Your Honours, we say that the jury’s answers to questions were necessarily verdicts because there was nothing further for the judge to do but to act consistently with them and they were not judge’s judgments or orders because “No” would give further discretion in relation to the manner in which judgment should be entered ‑ ‑ ‑

KIEFEL J:   But that is only because in this case they were verdicts making findings in favour of the defendant.

MR WHEELHOUSE:   Yes, your Honour.

KIEFEL J:   It is not the best example of the operation of these Acts, is it?  You really have to have regard to situations where there is more to do than just the jury returning a verdict on questions.

MR WHEELHOUSE:   With great respect, no, your Honour, because in our respectful submission it is reasonably plain that the intention of Parliament was to set up a mechanism whereby a jury trial would determine libel or no libel and that in the event that there was a finding that there was no libel that entitled a defendant to a verdict.  That, as Justice Gummow has said originally, has thrown itself up as the awkward piece of drafting in section 7A(2) of the Defamation Act where it uses the word “verdict”, where the judge himself finds as a matter of law that the publication is not capable of conveying the imputations.

KIEFEL J:   But that is probably just reflecting what historically a judge was able to do on a directed verdict when there was another option.  If it had gone that far to a jury it should be taken back because there is only one verdict that can be given.  It is probably simply reflecting that.

MR WHEELHOUSE:   I accept that, your Honour; it is just not felicitously drafted in that regard.  Your Honour, it is plain, in our respectful submission, from the structure of the legislation setting up section 7A in a jury trial in relation to the imputations that Parliament intended that where the imputations were found not to have been carried by the publication sued upon the publisher was entitled to a verdict.  It follows from, first of all, 7A(2) and it follows from the consequence of the jury making the finding of fact by answering no to the question has the plaintiff established that the imputations complained of are carried as a matter of fact by the material sued upon.

That, in my respectful submission, takes it completely out of the regime of “Judge’s judgment or order” because what it does is clearly place the Act into the hands of the jury and all the court can do, so far as it is comprised of a judge sitting alone, is act on the authority of the jury, subject to the right contained in section 126(2) of the District Court Act given to a party to apply where there may be a perverse finding.

The whole procedure was designed – ineffectively, I hasten to add – to simplify the process, not complicate the process.  In our respectful submission, what is the clear parliamentary intention is that it was the act of the jury that entitled the defendant to a verdict and accordingly it does not ‑ ‑ ‑

KIEFEL J:   And then judgment?

MR WHEELHOUSE:   Yes, but that does not become the judge’s judgment or order.  All that does is, when a judge directs entry of a judgment following a 7A trial, he is not exercising any discretionary capacity.  He has no discretion – to take up your Honour’s point previously put to my learned friend – he is acting merely responsively to the authority conferred upon him by the jury.  So, your Honour, it is not his judgment or order; it is the jury’s verdict.  That, with great respect to Judge Puckeridge, was what he plainly understood his role was.  If I may take you to that, and I am partly dealing with the Chief Justice’s question in relation to the minute of order 2, if I may.

Firstly, I will take your Honours to page 571 of volume 2 of the appeal book.  What some of the authorities say – and I think one of them is Musgrove v McDonald, I will check that – is that when parties consent to a jury being discharged before an invitation is given to a jury to bring in a general verdict, the parties have essentially consented to the questions giving rise to the entitlement to the verdict as being a general verdict.  I think that arises from Musgrove v McDonald and some of the cases dealing with section 73. There are specific patches that I will take the Court to in a moment to illustrate that proposition.

KIEFEL J:   Are you saying that section 7A(2) involved a general verdict?

MR WHEELHOUSE:   No, I am saying that where parties acquiesce or do not complain about a discharge of a jury before a general verdict was brought in and the answer to the questions that the juries have given would have given an entitlement to a general verdict the parties have understood to have consented to, in effect, the jury by their answers bring in a general verdict.  That may not have a great deal of impact in this case because of the strange labyrinth of legislation which this activity occurs.  Your Honour will see at 571 lines 39 the jury is discharged and at page 573 at line 15, “I ask for judgment” on the basis – the jury has answered no to the questions, no libel, and there is a short discussion, and my learned friend says at line 30:

Your Honour in respect of judgment, I can’t say anything against that.

This was his moment to make an application under section 126(2).  His Honour immediately says:

Verdict you mean.  There will be a verdict for the second defendant in respect of the claim by the first plaintiff Con Keramianakis.

So, your Honour, it is plain that his Honour understood that he was taking a verdict in respect of the no libel and he was not giving a judgment.

GUMMOW J:   His Honour was just obeying the words of section 7A(2) of the Defamation Act.

MR WHEELHOUSE:   Except that is directed to rulings that imputations are not reasonably capable of arising.  But your Honour is correct in the sense that he understood the legislation.

KIEFEL J:   Just section 7A(4) does not talk about a verdict being required in relation to the jury’s determinations.

MR WHEELHOUSE:   Your Honour is quite right.

KIEFEL J:   But you say that works in your favour or not because it implies, does it not, that the court will give consideration to the answers before the court determines which path should be followed?

MR WHEELHOUSE:   Your Honour, I would just say it is a poor piece of drafting.  What Parliament intended was that once there was no libel the defendant publisher was entitled to a verdict.

KIEFEL J:   Perhaps it is not addressed to that situation.  Perhaps it is addressed to the situation where there are other issues of law for the Court to determine.

MR WHEELHOUSE:   Yes, your Honour. 

FRENCH CJ   Anyway, you asked for a verdict and judgment below.  That is what you got, is it not?

MR WHEELHOUSE:   I try to cover all bases, your Honour, and I hope I have not done myself damage by doing so.

FRENCH CJ:   No.

MR WHEELHOUSE:   Your Honours, it is reflective of the normal procedure, that is to say, that the jury answers the question, the jury gets discharged, everyone looks at each other and then we ask the question, do we apply for a judgment and verdict or do we say that there is an argument for a new trial on the basis it is an aberrant finding?  As I say, Sonda v Signorelli is a classic example – and your Honour can read that amongst our authorities –of where that happened.  The jury came back with a no answer in that case.  I was appearing for the defendant.  The headline was that the plaintiff was a liar.  The jury came back “No” with the answer to the imputation, did the matter complained of convey the imputation that the plaintiff was a liar?  We had a vigorous debate about whether or not her Honour Judge Gibson should enter a verdict.  So our submission is that once the court accepts ‑ ‑ ‑

FRENCH CJ:   You thought you were getting judgment.  I mean, look at the bottom of page 575: 

WHEELHOUSE:   Well your Honour the case is wholly concluded against the second defendant so far as the first plaintiff is concerned.

HIS HONOUR:   Why?

WHEELHOUSE:   The second defendant has obtained judgment against the first plaintiff in its entirety.

HIS HONOUR:  That’s true.

He knew what he was doing. 

MR WHEELHOUSE:   I was not doing well with my language, your Honour, but that is effectively the central proposition.

FRENCH CJ:   He accepts that and he labelled the order “Judgment/Order”.

MR WHEELHOUSE:   If your Honour goes to the minute that was actually taken out which is dictated by discussion, of course, with the registry.  It is drafted by the solicitor and then there is discussion with the registry referring back to the transcript.  It plainly reflects a verdict was obtained.  Your Honour, there is not a lot of discussion on the topic but there is some discussion in Justice Bryson’s decision in Bennette v Cohen because ‑ ‑ ‑

FRENCH CJ:   If he were just recording the verdict and not entering judgment, would he have made a costs order?

MR WHEELHOUSE:   As my learned friend points out, he did, yes.

FRENCH CJ:   That is why it has the flavour of a judgment about it.  That is what I am putting to you, that ‑ ‑ ‑

MR WHEELHOUSE:   We would say, no, your Honour, but this is not an argument.  This is a series of contradictions, I suppose, the position being, your Honour, that – it is traditionally the position that juries’ determination of facts which are conclusive are regarded as verdicts and so understood, in my respectful submission, by the trial judge and effected in the order.

Your Honours, may I take you to Bennette v Cohen because it is the only case where this topic has been considered elsewhere, it being a fairly arcane area.  One of the difficulties that was identified by Justice Basten in his judgment is that there is not a neat fit between the Supreme Court legislation – or there was not then – and the District Court legislation.

The Supreme Court legislation as it then was and still is under section 102 gave express rights of appeal in respect of jury verdicts. His Honour commences his discussion at paragraph 13 on page 87 of 64 NSWLR 81 Bennette v Cohen:

Section 102 of the Supreme Court Act was enacted long before s 7A of the Defamation Act and without contemplation of procedure of the kind for which s 7A provides, but that procedure falls within the reference in s 102:

“. . . a trial . . . of any issue in the proceedings with a jury . . . ”

In Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201 at [62], the view of Ipp A-JA appears to have been that an answer given by a jury to a question posed under s 7A is a verdict within the meaning of s 102. A jury’s answer to a question left to them by the judge is not a verdict for all procedural purposes ‑ see Morosi [1977] 2 NSWLR 749 at 761 –

This is the point that Justice Kiefel has been making –

dealing with legislation no longer in effect ‑ but the verdict for the respondent which the Court in fact entered in the present case in reliance on those of the jury’s answers which favoured the respondent is a verdict of a kind of which s 102(a) speaks. A jury’s determination in accordance with s 7A(3), although not referred to in that subsection as a verdict, falls within the ordinary meaning of the word “verdict”, no less so because it is usually and I would think necessarily given in the form of a answers to questions, and in my opinion it falls within the meaning of “verdict” in s 102(a).

Then he refers to it in other cases.  So to the extent that the Court can get guidance from the New South Wales Court of Appeal it is that answer to a jury question in entitling a publisher to a verdict, although not expressed to be so under section 7A(3), is a verdict.

As I indicated to the Court a moment ago, your Honours, there are authorities that suggest that where parties have consented to a jury answering questions and following the answers given there is an entitlement to a judgment.  The jury’s answers are regarded as a verdict because the trial judge has no discretion but to enter a judgment consistent with the jury’s answers.  Your Honour, the best passage in relation to that is from the joint judgment of Justices Dixon and Evatt in Edmond Weil Incorporated v Russell (1936) 56 CLR 34 to 46. It is at the very top of the page:

Where questions are left to a jury, and, after answering them, the jury is discharged without giving a verdict, we should have thought that the parties ought to be taken tacitly to agree that the court shall enter that verdict which upon the answers the law requires and the jury are taken to authorize that verdict.  When the judge proposes such a course it is incumbent upon the parties to express any dissent.  But this does not seem to enable a judge at the trial, after findings have been made by a jury, to set them aside or ignore them and enter a verdict inconsistent with them.  To authorize him to do this we should have thought the positive consent of the parties must have been obtained, either by an express reservation of power made with their assent, or in some other manner.  The practice at common law was to reserve for the court in banc, not for the trial judge, the question whether a nonsuit had been entered or a verdict directed, and other like questions, the decision of which might override the actual verdict or finding of the jury.

Your Honour, in this particular set of facts, of course, the parties do not consent to a jury.  It is mandatory by reason of the provisions of the Defamation Act and section 76B of the District Court Act which, though passed after the commencement of this litigation, had retrospective effect.  Parties in District Court defamation cases had to have the question of libel or no libel determined by a jury.

Your Honours, in the same volume, in McDonnell & East Limited v McGregor 56 CLR 50 at 55 to 56, similar statements are made. The second line down from the bottom, your Honours, on page 55:

When a jury answers specific questions, the strict course is to obtain under direction a general verdict in accordance with the findings and to enter judgment upon the verdict.  But the formality of requiring the jury to return a verdict may be dispensed with if there be no objection.  When a jury answers specific questions and is discharged without giving a general verdict the jury and the parties are, in the absence of express objection, taken to have authorized the court to enter such verdict and consequent judgment as fl9ows in law from the answers which are given.

Similar remarks have been made of other cases and I do not need to take the Court to the text. 

In Russell v The Victorian Railways I think Justice O’Bryan made similar remarks, namely that when a party was entitled to a verdict following answers by a jury to questions a judgment so entered was regarded as a verdict.  Your Honour, that is at pages 130 to 131.  Similarly, in Prestinenzi v Steel Tank & Pipe Consolidated [1981] VR 421 at 440, Justice McGarvie said a similar thing:

In this Court, after a trial judge has accepted a general or special verdict, or the jury has answered questions submitted to it and been discharged, there is no power in the judge to give judgment inconsistent with the verdict or findings of the jury.  No power remains to give judgment directly instead of directing and obtaining a verdict and giving judgment, because the jury has finally given its verdict or finally authorized only the entry of a verdict consistent with its findings -

That is Justice McGarvie at [1981] VR 421 at 440. So, your Honour, the act of – it be so to characterise as entering judgment in favour of the second defendant following the answers to the questions by the jury, in our respectful submission, is not properly characterised as a judge’s judgment or order. It is properly characterised as a verdict because the judge had no authority to do anything other than regard it as a verdict. He had no authority to vary it or alter it in any way. Thus it falls outside the strict words of section 127(1).

Your Honour, an extreme example of where a deliberation by a jury was regarded as a verdict perhaps is the decision of The King v Snow [1915] 20 CLR 315 that my learned friend, the Solicitor‑General, has referred to. This was a case where a jury brought back a verdict in a criminal case following a direction. It was later on appeal asserted that the direction was wrong in that his Honour held in relation to an attempt to engage in trade with the enemy that as the acts of attempt occurred before the enactment of the legislation the criminal offence could not be established. That direction was soundly criticised.

Your Honours, there is a ferocious dissenting judgment by Justice Isaacs, written in the most colourful language in the minority, that nevertheless the view taken by the majority was that even if it could be established that the direction given was wrong the verdict was nevertheless being a verdict of a jury impeachable and the finding of a jury should be regarded as a verdict.

That threw up the meaning of the word “judgment” in section 73 of the Constitution, hence my learned friend’s cases. But in that case the High Court, by a majority, clearly held that a verdict was not a judgment for the purposes of section 73. Section 73 cases are all to the same effect. Although I do not suggest for one moment this discussion raises a constitutional point, I do get some analogous help from the Court’s treatment of the word “judgment” in section 73. Your Honour, it is now 12.44. I have a little bit to go. What should I do?

FRENCH CJ:   Yes, I think you should continue.

MR WHEELHOUSE:   Can I deal with a number of specific matters in response to my learned friend’s argument.  Your Honour, my learned friend puts forward the proposition that it is inappropriate to read provisions conferring jurisdiction or granting of powers to a court by making ‑ ‑ ‑

GUMMOW J:   Just before you do that, Mr Wheelhouse, what is your construction of section 7A, given the various stages and outcomes that it postulates?  Justice Kiefel was raising this with you, I think.  If you look at 7A(2) it talks about the court entering a verdict and then subsection (3) says, “the jury is to determine”, et cetera, and then (4), next step, “If the jury determines”, the court and not the jury is to determine defences and determine the amount of damages.

MR WHEELHOUSE:   Yes.

GUMMOW J:   But there is no sequential step spelled out other than what is involved in the notion of determination, is there, about entering a verdict?

MR WHEELHOUSE:   That is correct, your Honour.  It would be nice if section (4)(c) said, in the event that the jury finds that the imputation is not carried as a matter of fact a defendant publisher should be entitled to a verdict, but it does not say that.

GUMMOW J: What was section 76B about?

MR WHEELHOUSE:   That was requiring a defamation 7A trial to be heard by a jury in the District Court.

GUMMOW J:   I see.

MR WHEELHOUSE: What happened was the original form of the legislation only applied to the Supreme Court so everybody rushed off to the District Court to avoid juries, then the Parliament enacted section 76B, it being procedural had retrospective effect and we had juries back at the District Court. So by the time this case came on there was a jury by mandatory requirement.

GUMMOW J:   What I am getting to is that this word “determination” then has to be measured against the phrase “judgment or order” in the other statutory provision.  We seem to focus on “orders”, we do not seem to focus on “judgment” so far.  Why is not a determination a judgment?

MR WHEELHOUSE:   Well, because, your Honour, it is a determination by a jury on a question of fact entitling a party to ‑ ‑ ‑

GUMMOW J:   No, it is a determination by the court under 7A(4).  Would that not be a judgment?

MR WHEELHOUSE:   No, your Honour, it is a finding of fact.

GUMMOW J:   “[D]etermine the amount of damages (if any) that should be awarded”.

MR WHEELHOUSE:   I am sorry, your Honour, I am at cross‑purposes.

GUMMOW J:   “[T]hat should be awarded.”  It does not say, and go on to award them.  That is what mystifies me.

MR WHEELHOUSE:   Well, your Honour, obviously, it is an awkward piece of legislation, but the underlying policy was that the jury’s determination in relation to libel would be final and then if it found that imputations were carried as a matter of fact, then the usual procedure would follow, namely, the judge would deal with defences and damages.  But to the extent that the legislation sets up a trial and produces some degree of finality, we would say by the jury producing a verdict it occurs when the jury answers “No” to the question “Has the plaintiff established that the matter complained of conveyed the imputations?”, or “No” to the question “Has the plaintiff established that an ordinary and reasonable person would regard them as defamatory?”

KIEFEL J:   What you are saying is section 7A was set up for a plaintiff’s trial, effectively, which goes through to the conclusion on all issues; defence, damages, and your point is that it was unfortunate that it did not have a little bit added after subsection (3), which says if you do not get to these considerations, then you can turn your mind to what happens with the jury’s verdict in relation to imputations and defamatory matter.

MR WHEELHOUSE:   Not quite, your Honour.  I say it was set up to establish a trial by the jury on the question of, I would say comprehensively, no libel or libel and all other matters can be dealt with by the judge.  The Parliament having taken the view because of the balance between the right to private reputation and the right of free speech, the jury was the best vehicle to determine that front here.  One might not necessarily adhere with enthusiasm to the policy adopted, but the ‑ ‑ ‑

KIEFEL J:   I can see a desire for efficiency in here, but it probably only works in relation to subsection (2) and that is it.

MR WHEELHOUSE:   The underlying policy was to have the jury determine the question of libel, whether there was one or whether there was not one.  When the jury says no libel, that is the end.

KIEFEL J:   But historically, the questions have always been law and fact split, have they not?

MR WHEELHOUSE:   There is a multitude of division, your Honour.  Historically the position has always been that the jury would decide all questions of fact except the question of qualified privilege, which is always reserved for the judge under section 23.  That was the same at common law.  So there was always a question of mixed fact and law.  Often the jury was asked to decide questions of fact that related to the defence of qualified privilege which was purely reserved to the trial judge.  So it was always a combination of the two activities.

FRENCH CJ:   Mr Wheelhouse, you are going to be a little while yet, so perhaps we might adjourn.

MR WHEELHOUSE:   Yes, I am going to be a little while, your Honour.  Sorry to have been so slow.  I am not as efficient as my learned friend.

FRENCH CJ:   No, it is all right.  We have been assisted by it.  We will adjourn until 2.15 pm.

AT 12.50 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

FRENCH CJ:   Yes, Mr Wheelhouse.

MR WHEELHOUSE:   I was considering the question posed to me by Justice Kiefel over lunch as to what might happen in circumstances where the jury returned the answer “yes” to the question, where the imputation is conveyed as a matter of fact and what form of order would then occur following that event.  My learned junior reminds me that the High Court actually considered that question in Gacic (2007) 230 CLR 291. It was not as a result of our compromise of litigation. It may not have arrived on the list, but can I remind the Court that at page 306 of the report there is a discussion about the form of order. The Court said:

Upon that basis, the order proposed by the respondents includes the following:

1.Appeal allowed with costs.

2.Set aside the orders of Bell J made on 2 June 2005 and in their place order that:

(a)verdicts be entered that the matter complained of by the [respondents] carries each of the imputations identified as imputations (a) and (c) and that imputations (a) and (c) are defamatory –

That discussion translated itself into the form of order that was finally made which is to be found at page 355 of the report.  I am doing as best I can to answer the question your Honour asked of me; what happens when there is a positive answer to the jury question, what form of order is taken out and what then emerges in relation to the appeal rights?  Doing as best I can, the answer is that this Court has regarded even a positive answer as an entitlement to a verdict.

Your Honours, may I now make one or two remarks about some of the submissions made by my learned friend and in particular the proposition that the Court of Appeal did not refer to the principle that you do not read down grants of power without cogent reasons. Before I get to that topic, may I first refer to the submission my learned friend made in relation to the construction of the legislation in the 1975 to 1995 period. My learned friend took the Court to section 127(4) as it appeared prior to 1995, which is at tab 6 of the white folder of legislation.

The point my learned friend did not emphasise is this. If you go to the back of the tab, there is a printout from the practice book at the time which shows section 127 in a coherent form rather than showing it in the amending legislation. It is a bit hard to read by having regard to various amending legislation. Section 127 as it existed in that period related solely to jury verdicts and that is reasonably plain when one looks at section 127(2):

On an application under this section in respect of an action, the Supreme Court may order a new trial of the action or of any issue therein or may refuse to make such an order.

Then section (6) says:

This section does not apply to or in respect of a judgment after a trial without a jury in an action commenced after the commencement of section 3(t) –

So, the whole point of section 127(1) as enacted.

HEYDON J:   What about subsection (4) where they are sitting with or without a jury?

MR WHEELHOUSE: Your Honour, I read that as being subject to (6), in other words, section (4) preserved the old rule which said the Supreme Court could order a new trial. I may be incorrect in this regard, but I read section (6) as directing that section 127 in totality applied to jury trials. The point is that when these sections were amended in 1995 section 127 was wholly repealed. In other words, the legislature wholly repealed the section relating to jury trials and the new section 127, or the re‑enacted section 127, was, in fact, the old section 128. So the successor was the non‑jury trial arrangement.

So if you combined that fact, that is to say, if you combined the proposition that what the legislature did was wholly repeal the sections that were clearly stated to be trials conducted with a jury and substituted for that section a section which had its jurisdiction determined by the words “a judge’s decision”, which on its plain face would exclude jury verdict, the inexorable conclusion must be that what the legislature intended to do was to limit appeals to circumstances where there was a “judge’s decision” and not a verdict after a trial with a jury.

GUMMOW J:   Is there a definition of “judgment”?

MR WHEELHOUSE: Yes, there is, your Honour. That is a convenient point to take you to next. My learned friend took the Court to comparable legislation - section 79(1) of the Queensland Court Act and section 118 of the Western Australian Court Act.

GUMMOW J:   No, the definition in the District Court Act of “judgment”.

MR WHEELHOUSE:   If your Honour goes to the white folder, tab 10 contains section 4, which is the definition section.  That contrasts very substantially with the definitions that appear in the other States that my learned friend referred to.  The reason why there may not have been litigation in the other States was that in the other States the definition is quite different.  For example, the definition in section 3 of the District Court Act of Queensland 1967 for “judgment” includes “a judgment, order, or other decision or determination of the court”.  Those words “other decision or determination of the court” may encompass verdict and may encompass answer to questions.

The same pertains in relation to the District Court of Western Australia Act where there the definition is contained in section 6.  “Judgment” is defined as including “a judgment, order or other decision or determination of the Court or a District Court judge”.  So there the definition entirely encompasses where a jury is empanelled and becomes, relevantly, the court combined with the judge – the decision of the jury.

GUMMOW J:   The reason why I asked you, Mr Wheelhouse, was that section 7A of the Defamation Act talks about the court entering a verdict.  Why can that not be accommodated with the words in the definition of “judgment” in the District Court Act – judgment “entered up”?

MR WHEELHOUSE:   Because the language does not comfortably fit, your Honour.

GUMMOW J:   It has the word “entry” in common, does it not?  The statute assumes that the judge is going to enter something, or requires it.

MR WHEELHOUSE:   Obviously it is disjunctive because it says, “judgment given or entered”.  So obviously the legislature contemplates two.  But, in my respectful submission, if it was intended to include a determination of a jury or a finding of a jury it would have a definition more like that adopted in Queensland and Western Australia because, in our respectful submission, “judgment” has in it the context of an act on the part of a judicial officer exercising some form of discretion or deciding something, whereas that contrasts with the situation of a verdict.

So, your Honour, if it had said – as does the Western Australian legislation – “order or other decision or determination of the Court or a District Court judge” there would be no argument here, your Honour.  In my respectful submission, the definition does not assist in the interpretation.  I have noted that in my written submission.  Perhaps the highest it could be put is that it is ambivalent and not clear.

GUMMOW J:   Well, if that is so, why does one then constrict it?

MR WHEELHOUSE:   Because of the words “judge’s judgment”.

GUMMOW J:   No.  I thought you had said that there was an ambiguity.  The question then is, which way do you resolve the ambiguity and by reference to what precepts or criteria?

MR WHEELHOUSE: I submit, your Honour, the correct way of resolving that is to see how the word is used in the relevant section 127(1), and because of the use of the possessive which strongly indicate the intention was to relate that act to an act of a judge doing more than accepting a jury verdict, whereas if the definition had been more extensive, then the argument primarily would be much more difficult. Your Honours, may I now spend a moment dealing with that which appears to be my learned friend’s principal proposition, namely ‑ ‑ ‑

FRENCH CJ:   If the judge had written on the record judgment for the second defendant against the first plaintiff, first plaintiff to pay the second defendant’s costs, you would have nowhere to go, would you?

MR WHEELHOUSE: I would then fall back to the proposition that a judgment is in fact not a judgment, it is just a reflection of the recording of a verdict. Consistently with what the High Court has said in relation to section 73 ‑ ‑ ‑

FRENCH CJ:   The jury said nothing about costs.

MR WHEELHOUSE:   No.  Your Honour, it is not an appeal against a costs order, it is an appeal against a finding of fact.

FRENCH CJ:   No.  The fact that there is an order for costs tells us something about the nature of the order overall, does it not?  Anyway, I took you to this before.  Perhaps we should move on.  It just seems we are floating in a penumbral ocean around their words and what actually happened on the day.

MR WHEELHOUSE:   Yes.  But, your Honour, obviously there is a distinction between a judgment that says in the end “I will make an order for costs”.  I mean, there are all kinds of things that might derive from that activity.  He might come to the view that an order for costs ought to be made because there has been an adjournment or a late amendment or there could be a whole lot of ingredients come into a costs order.  That is why, your Honour, it does not really assist in the discussion to determine whether or not the judge could have made a decision in relation to costs.  That has nothing to do with the true question here, is that whether or not this is an appeal against the verdict, and the answer to that question, in our submission, is no.

Your Honour, may I go back and deal with my learned friend’s argument essentially deriving from The Owners of “Shin Kobe Maru” v Empire Shipping Co Ltd, Justice Gaudron’s statement, (1994) 181 CLR 404 at 421, which found its way into the Australasian Memory Pty Limited v Brien Case.  Essentially, my learned friend contends for the proposition that it is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.  In other words, one should not read “judgment” as excluding a verdict derived from a jury finding.

My first response to that is to say the Court here is not being asked to read down the rights of appeal from the District Court on the question of jurisdiction.  It is not being asked to make implications or impose limitations not found in the express words.  What the submission here is, and Justice Basten held, was that looking at the plain words may themselves contain an express restriction, namely, appeal rights are limited to a judge’s judgment or order.

Your Honour, my learned friend relied heavily on Australasian Memory Pty Limited v Brien (2000) 200 CLR 270. He relied on the passage at page 270, paragraph 17. May I take the Court to that. My learned friend reminds me he took the Court to pages 278 and 279, in particular, the proposition that “Cogent reasons must be advanced, then, if the power given by the general words” to read the words down. May I remind the Court that what the High Court was here dealing with was a section from the Corporate Law Reform Act, or the Corporations Act as it became, section 447A which was expressed in the broadest possible language.  These are sections that govern the practice of corporations and provide power to courts to enable orders to be made in respect of that class of activity.  Section 447A(1) which appears at page 275 of the report, states:

The Court may make such order as it thinks appropriate about how this Part is to operate in relation to a particular company.

In other words, the grant of power under discussion in the Australasian Memory v Brien Case was a grant of power expressed in the most general terms.  His Honour Justice Gummow pointed out, I think in David Grant v Westpac Corporation, that even a broad power such as that should be read down if it conflicts with a specific section relating to the same form of activity containing an express restriction.  First, a mere grant of general powers does not overwhelm specific grants of power when that is the subject of some other legislative Act.

In my respectful submission, the starting point for examination of the dicta in Australasian Memory v Brien is to have close consideration to the legislative text and context in which the grant of power is given.  For example, the discussion at 279 at paragraph 17 that my learned friend points to, relying as it does on the dicta from Justice Gaudron in Shin Kobe Maru is entirely in the context where there is a general grant of power for the Court to make orders in relation to a particular class of activity.

FRENCH CJ:   You say that your argument does not involve making implications or imposing restrictions, it is just the scope of the term “judgments or orders” of a judge.

MR WHEELHOUSE:   You read the words and apply them sensibly.  Your Honour, my learned friend’s submission that Justice Basten has not properly taken account of the principle that cogent reasons must be advanced if a power is given in general terms before reading them down really has no application to the case now before the Court.

Justice Basten in his decision set about in a coherent way explaining why – without identifying the relevant principle, I agree – in this particular case the words should be given a plain, clear meaning which ended up providing a limitation on the jurisdiction of the District Court. 

I think the last matter my learned friend raised was reference to the general powers contained in the Supreme Court such as section 23 and the discussion concerning rule 22.  Can I just indicate that CLR reference to David Grant.  It is David Grant v Westpac (1984) CLR and the relevant passage from Justice Gummow’s decision is at 275, 276.  Put for the proposition that general grants of powers would not displace limitations of power, especially when legislation is going for the same class of activity. 

Now, your Honours, we do not contend that once the gateway opening up jurisdiction in the Court of Appeal has been arrived at and the Court of Appeal has the relevant jurisdiction, it has vast inherent powers and vast statutory powers to do that which is necessary to afford justice between the parties in the sense of making orders for new trials and the like.  Rule 22 comes into that category of discussion and that is really a discussion about the inherent powers of the court to produce such orders as are necessary to enjoy justice between the parties, jurisdiction having been obtained.

Your Honours, we really come at the argument one step prior to that and say that the opening proposition to identify whether the gateway to jurisdiction has been opened and we say here, no, and therefore, your Honour, rules such as rule 22.4 do not represent a grant of power or a grant of jurisdiction.  They identify the existence of power to do things once jurisdiction has been established.

BELL J:   Justice Basten dealt with the Supreme Court Rules at paragraph 95.  He referred to Part 51, rule 23.  Was that a ‑ ‑ ‑

MR WHEELHOUSE:   That is a general power.  The court will not grant a new trial unless it first identifies that there has been a substantial miscarriage rule I think, your Honour, without going back to the book and looking at it.

BELL J:   The trial took place in 2006, but the provisions of the Supreme Court Rules were the appropriate ‑ ‑ ‑

MR WHEELHOUSE: No, your Honour, it is a very uncomfortable fit. What happened was that in 1975 there were substantial changes to the Supreme Court Rules that were not matched by the District Court Rules. So when we came to 2006 there was a set of rules in the Supreme Court and sections such as section 102 that expressly applied to jury trials, and there was no match in the District Court to those rules, and Justice Basten was pointing to that.

BELL J:   I was just raising another point which concerned whether it was the UCPR or the Supreme Court Rules.

MR WHEELHOUSE:   My recollection, without going back into the detail, your Honour, it was the Supreme Court Rules with which were then concerned.  My understanding of what Justice Basten was doing by first introducing a discussion about the Supreme Court Act was to show there was a lack of fit between the District Court Act and Rules and the Supreme Court Act and Rules and to identify how it was that you could get to the Court of Appeal on an application for new trial from a jury trial before a single judge in a Supreme Court, whereas you could not do that in a District Court. The answer was because the Supreme Court had section 102 which expressly related to appeals from jury verdicts or expressly related to appeals from trials conducted with juries and expressly provided a right of appeal to the Court of Appeal and expressly empowered the Court of Appeal to grant new trials on such an appeal. Justice Basten, as I read his judgment, was examining the Supreme Court Rules to identify the gap that had been caused by the 1995 amendments to the District Court Rules.

In my submission, Justice Basten’s approach is slightly inconsistent to the approach of others which has been rather than coming out from the Supreme Court end which tends to sidetrack us into discussions about inherent powers of the Supreme Court.  In my respectful submission, a better approach would have been to have looked at it from the legislative context or history of the District Court, as did Chief Justice Gleeson in Clutha and as did Justice Windeyer in Nominal Defendant v Hook, because the source of jurisdiction lay in the District Court Act and close analysis of the Supreme Court position did not really elucidate that other than to show the gap.  May it please the Court, unless I can be of further assistance, they are the submissions of the respondent.

FRENCH CJ: Thank you, Mr Wheelhouse. Before you sit down, when we were last before the Court on 23 September last year and Mr Reynolds raised the section 73 authorities, we reserved the costs of that particular day. Do you have anything to say about that?

MR WHEELHOUSE: We would ask for the costs of that day, your Honour, because the constitutional point has not been vigorously pursued. Our position on the previous occasion was effectively to adopt that which Justice Crennan said, which is to say that section 73 cases, while they might provide in some instances a useful analogy, do not really assist in the interpretation of section 127(1) of the District Court Act, (a) because section 73 is in Chapter III of the Constitution and (b) section 127(1) of the District Court Act is driven by its legislative history and its peculiar wording.  So our position has always been that there was no constitutional point.  

GUMMOW J:   You did take us this morning to some of those authorities, though. 

MR WHEELHOUSE:   Some of them are useful by analogy, your Honour, but they do not really assist.  I adopt, in a sense,

Justice Crennan’s remark when she said that there may be some – I cannot deny the word “judgment” appears in both sections and I cannot deny that what the High Court has said in relation to section 73 is a judgment does not include verdict. That is a useful analogy for me. But the High Court’s construction of section 73 is driven, as my learned friend the solicitor says, by its textual context in Chapter III of the Constitution and accordingly, the Court does not get much assistance by looking at cases which have considered the construction of 73 in that context. In particular, I had in mind what Chief Justice Gleeson had said in Clutha, he found no assistance on interpreting the Constitution when he came to examine the meaning of section 128(2A). I took the view that Chief Justice Gleeson’s position was probably correct.

In my respectful submission, there is, in truth, no constitutional point and my client has occasioned fairly significant costs by the part‑heard matter in preparing that point.  May it please the Court.

FRENCH CJ:   Thank you, Mr Wheelhouse.  Yes, Mr Reynolds.

MR REYNOLDS: Thank you, your Honour. Can I deal first, if I may, with the matter your Honour the Chief Justice raised a moment ago, namely, the question of the costs of 23 September last year. We submit the appropriate order is that they be included in the costs of the appeal, however that is resolved. The matter, I submit, was a matter properly raised with the Court as a matter arguably involving the interpretation of the Constitution. I submit that it was a matter that was appropriately drawn to the Court’s attention and which I submit the Court needed to look at. Moreover, it was not a matter raised by me as counsel for the appellants in furtherance of my clients’ interests. It was a matter raised by me in performance of the duty which I have to this Court to raise any decided cases which are against my client, and at least prima facie those decisions were of that character.

I submit that, as a matter of policy, this Court would not, in that situation, mulct my client in costs because if similar situations were to arise in the future the Court’s order in this case would act as a positive disincentive to counsel to perform the ethical duties which counsel has to raise cases against his client’s interests with the Court.  It is not an argument such as may happen where a party alleges that legislation is invalid and therefore his client wins the case.  It is in contradistinction to that.  It was not, moreover, I submit, a particularly obvious point.

One would have to recall that in the early days of this Court there were not infrequent appeals from courts of first instance to this Court and then stemming from that the possibility that there may have been similar cases in this Court’s jurisdiction in circumstances close to those before your Honours today.

I also submit that if we had got into the argument on the last occasion that given we are interpreting the words “appeal”, “judgment” and “order”, that it is not unlikely that one of your Honours would have raised this issue with either me or my learned friend and that this issue of an adjournment to look at these cases to see if they are germane or distinguishable would have been raised in any event.

Not everyone, with respect, agrees with the policy lying behind section 78B, but it is on the statute book and one of the consequences of its enactment is that there does have to be an adjournment, as your Honour the Chief Justice put it at the conclusion of proceedings on 23 September.  I think your Honour said it is one of those things, or it is just one of those things.  I submit it is just one of those things and it ought to be caught up in the costs of the appeal, particularly, as your Honour Justice Gummow noted with my friend, where he has made submissions at least by analogy relying upon those cases and where they needed to be looked at in any event.

There is only one matter that I would raise by way of reply and that is in response to the submission which I understood to be made by my learned friend, Mr Wheelhouse, this afternoon.  I understood him to say that Justice Basten had found that there was no judgment or order.  I submit that there are a number of points on page 620 of the appeal book which are inconsistent with that submission.  Using the line numbers on the left side of the page, at about line 13 his Honour refers to the verdicts being “set out in a minute of the judgment or order of the Court.  In paragraph 75 at about line 15 “reference was made to the order as recorded”.  At about line 20 he refers to judgments and orders and says:

However, that provision does not effect the making of the judgment or order, nor does it fix the time at which the judgment or order took effect.  Rather, the judgment or order takes effect on the date on which it was given or made . . . In the present case, the judgment or order was made by the trial judge in the course of the proceedings . . . The transcript, relevantly for present purposes, recorded his Honour stating . . . The order is correctly recorded in those terms in the minute.  It –

that is the order –

was made immediately following the return of the jury’s answers.

Then right at the bottom of the page:

There was no complaint that the judgment as entered did not properly reflect the findings –

et cetera.  I do not think there is any other passage in Justice Basten’s judgment which deals with the point of whether there was a judgment or order.  If the Court pleases, those are my submissions.

FRENCH CJ:   Thank you, Mr Reynolds.  Thank you, counsel.  The Court will reserve its decision and adjourn until 2.15 pm tomorrow afternoon.

AT 2.52 PM THE MATTER WAS ADJOURNED