Lovell v Lewandowski

[1995] HCATrans 318

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P6 of 1994

B e t w e e n -

AVON FRANCIS LOVELL

Applicant

and

ANTHONY LEWANDOWSKI, DONALD LESLIE HANCOCK, DENNIS WILLIAM HENLEY, HENRY HOOFT, KENNETH GEORGE HENNING, WILLIAM ROUND & ANDREW ALBERT TOVEY

Respondents

Application for special leave to appeal

TOOHEY J
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 26 OCTOBER 1995, AT 10.24 AM

Copyright in the High Court of Australia

MR J COURTIS:   If your Honours please, I appear for the applicant.  (instructed by Wojtowicz Kelly)

MR G.J. O’HARA:   If it pleases your Honour, I appear for the respondents.  (instructed by Kott Gunning)

TOOHEY J:   Thank you

MR COURTIS:   If your Honours please, this case is about stop writs.  It is about ‑ ‑ ‑

GAUDRON J:   No, it is not.

GUMMOW J:   No. it is not.

MR COURTIS:   With respect, your Honours, this is a case where my client published a book in March 1985 alleging, amongst other things, that certain police officers had fabricated evidence, perjured themselves, effected an actual perversion of the course of justice ‑ ‑ ‑

GUMMOW J:   We know all that.

MR COURTIS:   ‑ ‑ ‑and they sued.  The first writ was issued in March 1985, the other seven writs were issued in 1986 and here we are 10 years later nowhere near going to trial.  As I stand here, your Honours, there is so much interlocutory work to be done, they could not possibly enter the actions for trial until about June 1996.  If it goes to trial it will be a jury trial, it will be three months.  The Supreme Court could not hear it until 1997; 12 years after the first writ was issued.  Your Honours, if that is not a stop writ, well, I am sorry, I do not know what is.

GAUDRON J:   Could we deal with the questions that arose in the Court of Appeal and the issues arising from them in this Court rather than the polemics of stop writs?

MR COURTIS:   Your Honours, the respondents appealed with roughly 32 grounds.  It can be taken from the way in which the judgment is written and the way in which the argument was put that more or less abandoned most those grounds and/or by implication had them dismissed.  What the Court of Appeal basically did was that it said, “Look, there was delay, it was inordinate, it was inexcusable”.  The learned Master had found they had a policy to delay.  That was not appealed from.  The learned Master had found dead witnesses, lost witnesses or missing witnesses, lost evidence, destroyed evidence, faded memories ‑ ‑ ‑

GAUDRON J:   What is the point of principle that you say emerges?

MR COURTIS:   Again, with great respect, these are stop writs.

TOOHEY J:   But that is not the point of principle, Mr Courtis,  If there is a point of principle it must be found in that aspect of the law relating to summonses to dismiss for want of prosecution that relate to prejudice.

MR COURTIS:   Yes, and in relation ‑ ‑ ‑

TOOHEY J:   Because that is the point at which the Full Court differed from the Master, is it not?

MR COURTIS:   They differed in the sense that although there was no appeal against the findings of fact of dead witnesses ‑ ‑ ‑

GAUDRON J:   There usually are not appeals against the findings of fact.  I mean, ordinarily, an appeal court is concerned with errors of law.

MR COURTIS:   And we say the error of law is that the Court of Appeal erred in, in effect, taking over the discretion of the Master and where he found that there had been prejudice to the fair trial ‑ ‑ ‑

GUMMOW J:   Yes, I know, but one of the grounds for interfering with the exercise of the discretion, interfering at an appellate level, is that the facts upon which the discretion was exercised were wrongly found.

MR COURTIS:   But there was no appeal, your Honour.  There was no appeal against the finding of those facts.  There were no grounds of appeal.  It was never argued that the Master had got his facts wrong so, how can the Full Court, with respect, then say, “We will reverse it.  We will say there is no prejudice to the fair trial of this defendant on these defamation writs, and at that stage it was about seven or eight years after the first writ had been issued, even though there is all these dead witnesses, lost evidence, et cetera, we will say there is no prejudice to him.  That is the very point.  There were findings of fact as to prejudice to fair trial not appealed from and yet the Full Court, with respect, seems to have ignored them completely and gone off on a tangent.

TOOHEY J:   No, the Full Court, as I read their judgment, said that on the facts as appeared no case of sufficient prejudice had been made out, notwithstanding that the Master had reached a contrary conclusion on that aspect.

MR COURTIS:   Your Honours, perhaps if I can address Justice Gaudron’s question as directly as I can.  On the basis it is undisputed that there was all these dead witnesses, lost witnesses, lost or destroyed evidence and tainted memories we say the point of law is that the discretion of the Full Court miscarried in precisely this very point.  There was all of this evidence which we say is evidence of prejudice to fair trial.

TOOHEY J:   I question, really, whether we are in the area of discretion in any event because we are looking at questions of fact and a conclusion to be drawn from those questions, namely whether there has been prejudice of such a nature to warrant striking out the action for want of prosecution.

MR COURTIS:   Yes.

TOOHEY J:   The Full Court said no, there was not.

MR COURTIS:   We respectfully disagree.

TOOHEY J:   I understand that you disagree, that is why you are here.  But it is not enough to come to this Court on an application for special leave and say, well, we want to argue that the Full Court misapprehended the facts.  At the moment you have not fastened on to any issue of principle on which you say the Full Court erred.

MR COURTIS:   The principle, we would say, is the setting of a standard of prejudice such as would be sufficient to be prejudice to the fair trial of the action and we would say that there having been all these findings of fact unappealed as to all these various matters, we say, those findings of fact are the standard and the standard, we say, has been met by us.  This, of course, being the third application to strike out for want of prosecution, I might add in passing, but what the Full Court has done, in effect, is to say, “Well, we do not care about all of these matters; the dead witnesses, the lost evidence and destroyed evidence, we say whatever the standard may be, the standard of prejudice to fair trial, this is not enough, that standard has to be a higher standard”.

GAUDRON J:   It is not exactly that, is it?  It is said there is still evidence available.  These are not critical issues and so on.

MR COURTIS:   With great respect, I mean, if it is a matter for a jury to decide what is critical in a case like this, this would be a jury trial without question, if it ever goes to trial.  What the learned Master could do, and I accept that there is a limit to what he could do because he could not test credibility questions, obviously, but he made findings.  What can you do when you have seven of your witnesses dead?  They are dead.  What can you do about that? 

When you have, and I forget how many, a number of witnesses missing, when you have actual evidence - let me take perhaps the central piece of evidence in the entire case:  the fingerprint on the cheque.  This is one of the three cheques used in the Perth Mint swindle on which there was a fingerprint said to be the fingerprint of Raymond Mickelberg, clearly the most crucial piece of evidence against Raymond Mickelberg.

That cheque, the physical document, was destroyed for the purposes of evidence.  We are not saying it is the fault of the police officers concerned, but we are simply saying that it is a fact, unappealed, the most critical piece of evidence in which we in our book questioned and which we at trial would have to deal with because we plead truth.  How can we deal with that when the cheque itself has been destroyed for evidentiary purposes.

TOOHEY J:   But do you not understand that you are here on an application for special leave to appeal.  You are not going to get very far, Mr Courtis, if you are simply asking this Court to review the fact finding made by the Full Court and could I just question something you said earlier on that there was no challenge to the facts as found by the Master before the Full Court, but if you look at say, pages 65 onwards in the appeal book it seems to be replete with challenges to the facts.

MR COURTIS:   They were not appealed, your Honour.

TOOHEY J:   What do you mean, they were not appealed?  They were in the notice of appeal, were they not, or have I got the wrong notices?

MR COURTIS:   Your Honour, 65 onwards is the learned Master’s - sorry, these are the ‑ ‑ ‑

GUMMOW J:   Page 61 is the notice of appeal against the Master.

MR COURTIS:   Yes, these are the grounds of appeal.

GUMMOW J:   There seems to be a lot of factual stuff in that.

MR COURTIS:   Let us take this one, this is page 65, ground of appeal No 8, “Dead Witnesses”:

The Master erred in fact in finding that the loss of Olsen raises a likelihood of serious prejudice -

Your Honours, the subtlety is, they are not appealing from the finding of fact that Olsen is dead.  What they are saying is, in effect, it does not matter, and the Master erred in finding that because Olsen is dead that there is prejudice to the fair trial of the ‑ ‑ ‑

TOOHEY J:   It is not as simple as that, is it, because that in turn involves some sort of consideration of what the evidence of that witness might have been and what bearing it might have had upon the action.  They are matters which are canvassed at length by the Full Court.

MR COURTIS:   Olsen is dead.  Olsen is the expert on which my client relied completely for writing what he wrote about the fingerprint on the cheque.  How can Olsen’s evidence ever be presented to a jury.  If that is not prejudice to the fair trial, your Honours, then I am sorry, I have obviously lost it.   Olsen is dead.  He is the only person who could have given evidence in relation to the book in relation to that issue of the fingerprint on the cheque.

GAUDRON J:   He was the witness whom the Full Court said had recanted.

MR COURTIS:   Yes, but he was the witness who recanted because he had been given information which was incorrect.  That is the problem, your Honours.  At the time when he recanted he had been given incorrect information.  I will not put it higher than that.  We say, had he been alive and given the correct information, we have got no problem about his evidence, but he is dead.  That is the problem.

Can I go back to your question, your Honour, the principle.  If I can perhaps encapsulate our argument in this way:  what we are asking your Honours to do is to set the standard, as a matter of law, of what is required by way of prejudice to fair trial.

TOOHEY J:   How could you do that, Mr Courtis?  It is a question of fact, is it not?  The principles have been worked out through a series of cases.  It must, in a particular case, be a matter of looking at the facts and a court concluding, either at first instance or on appeal, that a case of prejudice has been made out or it has not been.  Each time you really come back to saying to us, “Well, we would like this Court to take on the task of reviewing the evidence and concluding for itself whether there was a sufficient case of prejudice made out”.  That does not look too much like a special leave case.

MR COURTIS:   Your Honour, with respect, that is our case.  There are other issues but, I mean, fundamentally that is the proposition because the effect of the judgment of the Full Court being upheld is that the standard to be reached in proving prejudice to fair trial is now impossible because if seven dead witnesses and lost witnesses and lost evidence and destroyed evidence is not good enough, well, nobody is ever again in the whole of Australia ever going to succeed on a strike out for want of prosecution after inordinate and inexcusable delay because of ‑ ‑ ‑

GAUDRON J:   That clearly is a little bit tendentious.  There may be cases in which the death of one witness would be sufficient.  It will depend inevitably on the issues put in the trial and the nature of the evidence.

MR COURTIS:   Your Honours, we stand here 10 years after the first memories have well and truly faded and yet, I suppose ‑ ‑ ‑

GAUDRON J:   What you are, in essence, asserting in relation to faded memories is presumptive or presumed prejudice which has been rejected by this Court.  This Court has said, in relation to the cases, that it is actual prejudice that must be established.

MR COURTIS:   And that was what the learned Master found.  In effect he said that all these matters are evidence of prejudice in a general sense.  I think I am quoting his words there which, of course, the Full Court overturned.

TOOHEY J:   No doubt he did, I mean, that is why it went on appeal, I suppose.

MR COURTIS:   Yes, and that is the point, I suppose.  So, your Honours, I am asking this Court to have regard, having regard to the particular facts of this case which, as facts, are not challenged on appeal, to have regard to those facts and, in fact, as a matter of law set the standard for the degree of prejudice to fair trial necessary to succeed in an application to strike out for want of prosecution, in this case, your Honours, after the third trial and it is 10 and a half years after the first writ was issued.  It would be 12 years by the time it went to trial after the first writ was issued. 

It is not just that narrow point, it goes to the point or the larger issue of delay and what policy does the Court have about delay in defamation actions where speed of going to trial is the very essence ‑ ‑ ‑

GUMMOW J:   We do not have policies about anything, we decide cases.

MR COURTIS:   Yes, your Honour.

GUMMOW J:   What was said in those judgments binds people in various respects.

MR COURTIS:   Yes, but in defamation, speed of going to trial is the essence of the remedy to restore reputation.

TOOHEY J:   I do not think it is appropriate for us to become involved in consideration of the long history of this matter.  There may be all sorts of reason why it has not gone to trial earlier than this which are not really related to the point that you are seeking to argue before us.

MR COURTIS:   Your Honours, even the Full Court accepted that there was inordinate and inexcusable delay.  Where the Full Court overturned the decision was on the question of prejudice.

TOOHEY J:   Very often the remedy for delay is to take steps to set the matter down for hearing.

MR COURTIS:   This is defamation, it is up to the plaintiffs.  The law on that is clear and there are so many interlocutory steps yet to be performed, as I have said, it could not be set down until roughly half-way through next year, but the point there is delay.  I mean, can it be said that after 12 years after the first writ that delay is not something that this Court can take into account?

GAUDRON J:   Delay is not the problem, it is not your problem, the problem is prejudice ‑ ‑ ‑

MR COURTIS:   Yes, and delay.

GAUDRON J:   So there is no point dealing with delay because that is not the point in this application.

MR COURTIS:   Your Honour, the reason we won at first instance was precisely that delay was one of a number of factors that we had to establish.

GAUDRON J:   But you have not lost on delay at any point.  The question is now and has, at least since the Court of Appeal, been confined to prejudice which is conceptually different from delay, unless you adopt the principle of presumed prejudice which has been rejected by this Court.

MR COURTIS:   I am sorry, your Honour, my client does remind me - can I take your Honours to page 113 of the application book and it is heading, “Part C: Appeal Grounds” and there are three columns.  The left column, “Appeal Grounds”, the centre, “The law”, the right column, “The Evidence”.  The bottom right-hand column under the column of evidence, paragraph 6; this is a summary, your Honours, but the proposition is that a witness for the police themselves gave evidence, in effect, that our client had suffered probable financial losses of between $40,000 and $350,000 and that was not overturned in any way by the Court of Appeal.  So, we have suffered prejudice in a financial sense, which is separate.

GAUDRON J:   Again, we are talking about prejudice to a fair trial.

MR COURTIS:   We also suffer that prejudice, your Honour.

GAUDRON J:   But where is the question of principle involved in that?

MR COURTIS:   Again, your Honours, I notice the light is flashing.  Your Honours, I will simply summarise in this way.  The principle, we say, is that your Honours have this case as a vehicle for setting the standard for the whole of Australia for what is the level or standard of prejudice necessary.  If your Honours please, my client seeks to instruct me.

Perhaps also for consideration is the interface between caseflow management principles and the law under the cases of Ulowski v Miller and Birkett v James and so forth.  The Full Court said, in effect, these things will not happen any more because we now have caseflow management principles, that is, these sorts of delays in these sorts of trials, but unfortunately, of course, here we are today quite some time after the Full Court handed down its decision and, as I have said, nowhere near a trial.

So the caseflow management principles have not succeeded in this case and we would say that it is an example of how they will not succeed in other cases around the country in the future.  So, again, an opportunity for your Honours to have regard to the caseflow management principles on the one hand and the old law for strike out for want of prosecution on the other, if your Honours please.

TOOHEY J:   We need not trouble you, Mr O’Hara.  This application for special leave to appeal raises questions relating principally to the aspect of prejudice on an application to strike out for want of prosecution and also to abuse of process.  The principles to be applied in these matters are not in doubt.  There is no error of principle on the part of the Full Court which differed from the Master in the application of those principles to the facts as assessed by the Court.  In those circumstances a grant of special leave to appeal is not warranted.  The application is therefore refused. 

MR O’HARA:   I seek an order for costs, your Honour.

TOOHEY J:   Any opposition to that, Mr Courtis?

MR COURTIS:   Yes, your Honour, I am instructed to oppose.  The learned Master found as a fact that police officers were being funded by their Union, that was not appealed, not overturned on appeal.  My client applied on what he felt was a serious question of law and he should not be penalised particularly, again, since it was found that he had suffered financial prejudice and that was not appealed either, if your Honours please.

TOOHEY J:   There is no reason why, in the view of the Court, the ordinary rule as to costs should not apply.  In this case the application is therefore refused with costs.

MR COURTIS:   Thank you, your Honour.

AT 10.45 AM THE MATTER WAS CONCLUDED