Lancee v Willert & Ors

[2008] HCATrans 378

[2008] HCATrans 378

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P26 of 2008

B e t w e e n -

JOHANNA MARIE LANCEE

Applicant

and

GLEN MICHAEL WILLERT AND KAREN ANN REED

First Respondents

STATE OF WESTERN AUSTRALIA

Second Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

BY VIDEO LINK FROM ADELAIDE TO PERTH

ON THURSDAY, 13 NOVEMBER 2008, AT 12.23 PM

Copyright in the High Court of Australia

MR J.R. LUDLOW:   May it please the Court, I appear for the applicant.  (instructed by Kitto & Kitto)

MR G.T.W. TANNIN, SC:   May it please the Court, I appear for the respondent with my learned friend, MS K.A.T. PEDERSEN.  (instructed by State Solicitor for Western Australia)

HAYNE J:   Yes, Mr Ludlow.

MR LUDLOW:   Your Honours, in our respectful submission, there are two main problems with the reasoning of the Court of Appeal in rejecting our submissions.  The first main problem is that the Court of Appeal has not correctly understood the true nature of the concession made by the DPP lawyer before Justice McKechnie and the second main problem is that the judgment of the Court of Appeal displays confusion between the separate and distinct concepts of abuse of process on which we have been relying throughout and issue estoppel on which we are not relying.

Dealing with the first submission, the true nature of the concession - your Honours, the concession in question is set out in the application book near the top of page 25.  It is quoted in paragraph 14 of the Court of Appeal’s judgment.  As I have submitted in writing, the Court of Appeal, in our submission, erroneously equates a verdict of not guilty on the facts with a verdict of not proven on the facts, but as I have also submitted in writing, there is another problem with the Court of Appeal’s judgment in that respect, and that is that the concession that was made and formed the basis of our acquittal was not a concession that we were not guilty on the facts, nor a concession that the facts were not proven.  Rather, the concession was a concession as to the nature of the case that was being sought to be proven against us to the criminal standard, and a concession that even if those alleged facts were proven to that standard, that did not establish in law the offences of which we had been charged.

HAYNE J:   Mr Ludlow, I know this is taking you away from the path you had chosen, but can I just interject this by asking if this matter now goes to trial, is your client in any way shut out from maintaining the submissions which she made in the Court of Appeal?

MR LUDLOW:   We would be shut out in the Court of Appeal.  It is not clear whether we would be shut out at a later stage, but in our respectful submission ‑ ‑ ‑

HAYNE J:   Would you not – and I speak only for myself – the difficulty I see with your application is that we are asked to take the point at the stage of a pleading summons.  Why would we take it now?  Why would we not let the case be fought out, the issues decided, and then if there is an issue tendered, ultimately, take it on at that point?  That I think is a major hurdle you have to confront.

MR LUDLOW:   Yes, I accept that, your Honour.  I have two oral submissions to make to supplement the written submissions I have already made on that topic.  The first oral submission is that if we are right, then we win the case.  There will be some minor questions, but what we are effectively seeking is a final determination in our favour on the main issue in the case, and that is important.

The second point – and we make this partially in reliance upon your Honour’s joint judgment with Chief Justice Gleeson in the case of Carroll - is this.  If we go to trial and evidence is led and there are findings of fact and then we come back here, all those findings of fact and that evidence is not really relevant to the real question and that is, is the pleading a pleading that controverts our acquittal?

So if we have all that additional material, it is not going to help us in any way resolve the issue that is raised by this application and in fact it might even distract everyone’s attention from the real issue.  So that is the second most powerful submission in support of our application to have the case go before the Court now.

HAYNE J:   Yes.

MR LUDLOW:   Your Honour, perhaps I could return to the question of the true nature of the concession.  The problem with the approach of the Court of Appeal is that its discussion focuses on the question of reasonable doubt, but it is clear when one takes into account the true nature of the concession that our acquittal was not based in any way on reasonable doubt.  The concession was she is not criminally responsible and the problem with the plea and with the respondent’s submissions is that the plea is alleging that we were criminally responsible.  In our submission, it is abundantly clear, contrary to the view taken by the Court of Appeal that that controverts our acquittal.  It is a direct conflict with the true nature of the concession.

Your Honour, as I have earlier submitted, there is also confusion between the concepts of abuse of process on which we are relying and issue estoppel.  The main cases that the Court of Appeal relied upon in rejecting our submission were Helton v Allen and Kuligowski v Metrobus.  Those cases are not cases on abuse of process.  They are cases on issue estoppel and the Helton v Allen Case is not a case on a dispute between the unsuccessful prosecutor and the acquitted person.

Your Honours, in our respectful submission, the law is well stated in the case of Walton v Gardner 177 CLR at 393, of which my learned friends have provided the Court with copies. About half way down the page, the Court said that the joint majority judgment said:

proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.

In our submission, that passage - which unlike the Court of Appeal’s judgment does not fuse questions of abuse of process with questions of issue estoppel - is a correct statement of the law in this area and, in our respectful submission, this is not a case where the Court of Appeal has correctly stated the law and then applied it in a manner with which we disagree.  It is a case where the law simply has not been correctly stated in accordance with the principles as they have been discussed and applied in this Court.

Your Honours, there is also the problem – and this appears to have been recognised by the Court of Appeal – that there seems to be a conflict between the view taken by the Court of Appeal in this case as to the question of controversion and the view taken earlier by the majority of the Court in Gilham v The Queen to which reference is made in the reasons for decision.

In our respectful submission, particularly if you look at the whole of the paragraph 156 of the judgment in Gilham, the conflict between the view expressed in New South Wales and the view expressed here becomes even clearer.  So, in our submission, the Court ought to grant special leave now rather than later and the Court ought to clarify the confusion that is displayed in the judgment and the Court ought to resolve the conflict between the New South Wales view of the law and the Western Australia view of the law, and unless your Honours ‑ ‑ ‑

CRENNAN J:   Of course one difference there is the difference between subsequent criminal proceedings and subsequent civil proceedings.

MR LUDLOW:   Yes, that may be relevant ‑ ‑ ‑

CRENNAN J:   In a sense the Gilham question will not arise or does not have to arise.

MR LUDLOW:   The Gilham question will arise in relation to what is controversion of an acquittal.  In Gilham’s Case it was held that there was

controversion, but then Gilham went on to decide that there was not abuse of process.  As this Court said in Batistatos, abuse of process is slightly different in criminal cases from what it is in civil cases, but in our respectful submission, there is no authority in this Court for the proposition that something that would be controversion if done in a criminal case is not similarly controversion if it is done in a civil case.  In our respectful submission, Gilham is not authority for that proposition either and unless the Court has any further questions, those are my submissions.

HAYNE J:   Thank you very much, Mr Ludlow.  We will not trouble you, Mr Tannin.

The applicant seeks special leave to appeal against orders of the Court of Appeal of Western Australia made in an appeal against orders of a judge of the District Court of that State to the effect that a pleading filed by the defendants in the action should not be struck out as an abuse of process.  It is well established that this Court will rarely intervene in cases where the orders in question are interlocutory and not final.

We are not persuaded that it is in the interests of justice generally, or in the interests of justice in the particular that there be a grant of special leave to appeal in this matter.  Accordingly, special leave is refused.  It must be refused with costs.

AT 12.34 PM THE MATTER WAS CONCLUDED