Love v Roads Corporation

[2014] HCATrans 174

[2014] HCATrans 174

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M23 of 2014

B e t w e e n -

THOMAS JAMES LOVE

Applicant

and

ROADS CORPORATION

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 AUGUST 2014, AT 9.55 AM

Copyright in the High Court of Australia

MR A.G. UREN, QC:   If the Court pleases, I appear with my learned friend, MS L.J. MARTIN, for the applicant.  (instructed by Blue Rock Law)

MR C.J. DELANY, QC:   If the Court pleases, I appear with my learned friends, MR D.J. BATT, QC and MR P.F. CHIAPPI, for the respondent.  (instructed by Garland Hawthorne Brahe Lawyers Pty Ltd)

HAYNE J:   Yes, Mr Uren.

MR UREN:   If the Court pleases.  The first matter on which the applicant relies for the purposes of the application is the issue relating to the draft judgment for which purpose could we ask the Court to look at the directions which were given orally by Justice Vickery in volume 2 of the application book starting at page 382.

HAYNE J:   The Court of Appeal said these directions should not have been given in this matter?

MR UREN:   They did, but the Court of Appeal made observations with respect to the directions which, in our submission, are not really supportable.  The Court of Appeal said they should not have been given but, in effect, they did not subject Mr Love to any particular disadvantage.  The Court of Appeal’s reasons in that regard appear in the application book volume 2 at page 308. 

At paragraph 27 the court considered that they should not be used, not because they were intrinsically unfair but because of formal matters like they would involve a lot of time and expense whereas the partisan submission can be limited to matters of fact and law upon which the party relies.  But in the context of the Court of Appeal’s acceptance of the proposition at 29 that the process was:

a peculiarly unsuitable procedure to adopt in a case involving an unrepresented litigant . . . calculated to exacerbate, rather than mitigate, the disadvantages which inevitably flow from the lack of legal representation . . . Mr Love’s draft judgment –

which we would submit is perfectly hopeless, it is clear, in our respectful submission, that what is said by the Court of Appeal in paragraph 30 is, firstly, insupportable and, secondly, does not go to the point because the point is not whether Mr Love was inhibited in putting the substance of the case which he wished to put forward or the answer to Roads Corporation which he wished to make or that he was in a position to make his own judgment which is the best way in which to advance his case or that his decision not to advance an alternative case must be seen to have been a fully informed decision made by him.  It seems perfectly clear, in our respectful submission, that when you look at the terms of his Honour’s oral statements with respect to the draft judgment that what - firstly, there are internal inconsistencies in the oral directions and, secondly, Mr Love was told at 383 at about line 20:

But the draft judgment should not include submissions, it should be what the party ultimately contends for –

and then on the next page at 384 his Honour said the same thing between lines 20 and 30 that:

as if one was reading the judgment which the party putting forward that judgment would like the court to find –

et cetera.  So what Mr Love was told to do was to put his case forward at what he actually wanted the court to do.  His Honour, one can see at page ‑ ‑ ‑

KIEFEL J:   Mr Uren, just so I am clear about it, do I take it that you are saying that the matters identified by the Court of Appeal in paragraphs 30 and 31 are not disputed but that there are other matters which you say ought to be taken into account?

MR UREN:   It is disputed that he was in a position to make his own judgment as to the best way in which to advance his case.  It is disputed that he decided not to advance an alternative and that that must have been a fully informed decision made by him because he was told to put his case forward at what he wanted the court to find. 

The relevant factor in this case is that Mr Love put forward a very high value for his land.  He put forward a value of some $30 million.  The value of the land by which the respondent put forward as industrial land was for some 14.5 million.  For the purpose of Mr Love’s success in the case he did not have to get $30 million.  He had to get, let us say, $15 million.  In other words, he had to do better than the value which was put by the respondent. 

CRENNAN J:   Mr Uren, pausing there for a moment, accepting the force in what you have said about the procedure that was followed in relation to the draft judgment, what are we to do about the findings of fact about the rock quality in the primary judge’s decision.  I am talking about the findings to be found at 198 and 199 of the application book, paragraphs 646 to 648 which seem to affect the basis of Mr Herdman’s evidence which, as I understand it, was advanced in favour of the $30 million valuation.

MR UREN:   Yes, it was.  The fact is that this resource was a very large resource.  It was originally thought to be 15 million tonnes and it turned out to be somewhere in the order of 40 million tonnes.  Within the quality of rock that was – sorry, within that larger amount of rock even if some was of lesser quality than others it cannot be said not to have had a value which could have been assessed.  So even though the rock was at - the lower end of the rock in the ground was of less quality than the rock at the top, nonetheless, I do not think the evidence showed that it was not of value and if it could have been extracted would have been taken into the matrix of facts which allowed the value to be assessed. 

The difficulty with the whole process is that Mr Love was told to put forward his best case which – at least, his highest case which was what he did but in doing that he did not, in fact, put in the case which he really should have put which was that if his best case was not accepted, nonetheless, there was room for a lower value to be found within the range of his figure of 30 million and Roads Corporation’s figure of 14.5 million.  What the trial judge ‑ ‑ ‑

HAYNE J:   Was that alternative case advanced on appeal to the Court of Appeal?

MR UREN:   Yes, it was.

HAYNE J:   Why then has the applicant not had an opportunity, a proper opportunity, of advancing the alternative case which you say he was denied the opportunity to advance at trial?

MR UREN:   Because the Court of Appeal – the alternative case was put in the reply which we put into the Court of Appeal but the alternative case was that between the values of the inputs which Mr Herdman had used and the value of the same inputs which was given by the respondent’s evidence, there was room for an intermediate value to be fixed than the values which Mr Herdman had used.

What his Honour did below was to not make any assessment of what the intermediate might be but to reject Mr Herdman’s and also Mr Love’s case simply on the basis that Mr Herdman’s values were not proved.  So his Honour did not make any assessment of the intermediate value ‑ ‑ ‑

CRENNAN J:   Was there any evidence upon which his Honour could have proceeded to make that assessment?

MR UREN:   Yes, his Honour – the point we make is that – these cases of this sort involve matters of value judgment because what properly might – what particular goods might sell for is a matter not of calculation but of assessment and what costs might be is a matter also of assessment.  But the basis on which the trial judge proceeded was that because he rejected the high figures given by Mr Herdman he went no further and what we put to the Court of Appeal was that that is what the judge had done but he did not do what he would have done or should have done if it had have been put to him by Mr Love, namely that between the low figures of the respondent and the higher figures of Mr Herdman there was room for a value judgment to be made as to what the appropriate input figures should be. 

That would be a task for assessment by somebody who heard the evidence not by the Court of Appeal.  So, although we put to the Court of Appeal the case which could have been made if Mr Love had been, as a litigant appearing for himself who is not a lawyer, properly advised, instead of being told to put his case at its highest then the judge could have dealt with the matter on the basis of whether he accepted intermediate figure or not.  If he had accepted intermediate figures ‑ ‑ ‑

CRENNAN J:   Did not the Court of Appeal – I may be wrong about this but I thought the Court of Appeal had refused leave to file a supplementary submission which advanced that alternative case on the basis – basically on the Metwally principle.

MR UREN:   That is what they said but in actual fact we had put to the – what we had filed with the Court of Appeal in our submissions was a reply which referred – which, in fact, set out this alternative case, at least set out the case which the draft judgment process did not provide before making.  Although the Court said they would not allow further submission, the Court seems to have ignored the fact that in paragraphs 6 and 7 of the reply that we put in we had, in fact, said what the alternative case would have been. 

The way the matter turned up below is we referred this alternative case to the Court and they said where is the general notice of appeal?  Well, it was not in the notice of appeal because what it was was by way of a reply to a proposition which was put by the other side.  The proposition which – the reply which was made is contained in our reply.  It was not contained in the notice of appeal.  It was contained in the reply.  When they said you would have lost anyhow, we said, well, look, there is the alternative case which could have been put and which should have been put but which the draft judgment process stopped us making.

KIEFEL J:   Could I just ask in that regard, the draft judgment process – the effect of the directions was not, was it, that it completely take the place of closing submissions but that it take some part of the closing submissions, that the directions allowed for there to be further submissions in addition to the draft judgment?

MR UREN:   Yes, his Honour said you can speak to or expand upon or indeed put other arguments in relation to the draft judgment.  This is what he said at 383.  But what is Mr Love to understand about that, not being a lawyer, when he is told put what the party ultimately contends for.  He was not – and it is perfectly clear when one looks at his draft judgment that it is a document of pretty well no ‑ ‑ ‑

KIEFEL J:   Did he present any further submissions?

MR UREN:   Yes, he spoke and there was, I think ‑ ‑ ‑

KIEFEL J:   He had presented evidence upon which the alternative basis could be founded?  There was no restriction on the evidence that could be put?

MR UREN:   No, there was not but, nonetheless, at the time the draft judgments were finalised, of course, all the evidence was in.  He put his figures and somebody else had put their figures but ‑ ‑ ‑

KIEFEL J:   But he does not seem to have been a gentleman who was particularly inhibited in his courtroom – in putting his case forward.  If he had an alternative case, why would he not have put it in closing submissions?

MR UREN:   Because he was told to put what he ultimately contended for and being a lay person he thought I will put in my case because I really think I am worth $30 million.

KIEFEL J:   Was there any discussion – any reference in the directions to alternative ‑ ‑ ‑

MR UREN:   No, there was not.  All that was put was he can make alternative submissions but what a lay person would understand by alternative submissions is unlikely to include a proposition that if the judge does not accept evidence at its highest then there is another basis upon which you can find a case which will allow me to succeed.

HAYNE J:   But the consequence of that seems to be, at least arguably, Mr Uren, that either the Court of Appeal was right to say this is a Metwally Case or it was not and that would mean that your complaint was a complaint about the Metwally decision in the Court of Appeal.  That is not the way in which the application is framed at all, is it?

MR UREN:   Yes, the Court of Appeal basically agreed with what the trial judge had done so one ‑ ‑ ‑

HAYNE J:   You do not say, do you, as part of your application the Court of Appeal wrongly prevented you from having a rehearing on the papers in the form of an appeal?

MR UREN:   We could not have had a rehearing because the appeal was only on points of law.

HAYNE J:   Point of law?

MR UREN:   So we have to deal with the case with that particular restriction.  So we could not say to the Court of Appeal you can find on the evidence that something else was the case, or something of that sort.  Indeed, it would in part depend on assessment of witnesses and other matters which might be got from the voluminous evidence which was given.  But we were limited to points of law and, therefore, a full factual case could not have been put.  Our complaint is that the draft judgment process allied to the not giving assistance to the litigant in the context of what any lawyer would understand he should have put is a matter which goes significantly to the administration of justice certainly in this particular case.

KIEFEL J:   The orders you seek are that there be a new trial – amongst the orders you seek is that there be a new trial.  Why should there be a new trial when it is only a question of argument being put?  Why should the findings of fact be set aside?

MR UREN:   If the appeal is allowed and the order below is set aside then there would be some of the issues which would be decided on the appeal but, nonetheless, the issues as to inputs, for instance, could not, we would think, be decided on the papers.  There is another aspect, too, which is that as the case ‑ ‑ ‑

KIEFEL J:   Why could it not be referred back to the same judge to consider further argument on the alternative submission?

MR UREN:   Because the nature of the views formed in the judgment would make it unjust that the case go back to be heard by the same judge because he would have to, in fact, then stand in judgment on matters of fact on which he has expressed some adverse conclusions.  I mean, apart from which he has also got to be told that he has done the wrong thing in the first place and it would not be entirely satisfactory if that was the case. 

KIEFEL J:   It would not be the first time.

MR UREN:   No, but there would be a tendency to stick to the original or, at least, it may be seen that the judge might have that tendency rather than to say that there is something which ‑ ‑ ‑

KIEFEL J:   But essentially there is a problem that the findings of fact are squarely against your client.

MR UREN:   The difficulty is – some of the findings of fact were made in absence of consideration of relevant evidence because looking at the issue relating to the permits, that was decided without the benefit of Mr Maclellan’s evidence which was excluded, in our submission, wrongly and was also decided without the benefit of Mr Love’s evidence as to what he would have done, of which no notice at all was taken.

KIEFEL J:   This is the evidence about the Minister who was giving opinion evidence about what the panel would have recommended to him?

MR UREN:   No, he was giving evidence as to what he actually would have done.  If the Court goes to pages ‑ ‑ ‑

KIEFEL J:   How would you characterise that evidence, what quality would it have?  It is not even opinion evidence.

MR UREN:   No, the evidence of what – it is not opinion evidence.  A person is always allowed to give evidence of what they would have done in certain circumstances.  That seems not to be considered as opinion evidence.  It is evidence simply of – the person as to what he would have done.  That is not considered as falling within the category of opinion evidence.

KIEFEL J:   Did it not depend, though, on what the panel would have recommended?

MR UREN:   No, no, he said that he certainly would have approved of the quarry permit application.  In doing so, he would have been likely to have done so in a matter consistent with the panel’s recommendation.  His view about what the panel would have recommended firstly was not a clincher and, secondly, it was about the – it was in support of his evidence as to what he certainly would have done.  He said he certainly would have approved of the quarry permit application and that being the case that was something which would have and should have been taken into account in deciding whether Mr Love got to first base, as it were, with respect to his case. 

The case was decided without the benefit of Mr Maclellan’s evidence in that regard and also without the benefit of the extensive evidence that Mr Love gave with respect to what he would have done but

could not do because of the fact that he did not have the permits which, in turn, were not issuable because of the fact that the Craigieburn Bypass was a reason why the permits would not have been granted.

HAYNE J:   I notice the time has expired, Mr Uren.  Is there anything that you need to add?

MR UREN:   Only to rely on what we put in our written material.

HAYNE J:   We will not trouble you, Mr Delany.

The Court of Appeal was right to say that the procedure adopted at trial requiring each side to provide the trial judge with a draft of the reasons for judgment it sought the trial judge to adopt was “a peculiarly unsuitable procedure to adopt in a case involving an unrepresented litigant”.  We are not persuaded, however, that an appeal to this Court would enjoy sufficient prospects of success to warrant a grant of special leave to appeal.  Special leave is refused.  With costs?

MR DELANY:   Yes, your Honour.

HAYNE J:   With costs.  The Court will adjourn to reconstitute.

AT 10.18 AM THE MATTER WAS CONCLUDED