M.B.P. (SA) Pty Ltd v Gogic

[1990] HCATrans 132

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~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al0 of 1990

B e t w e e n -

M.B.P. (SA) PTY LTD

Applicant

and

ZVONINIR GOGIC

Respondent

Application for special leave

to appeal

DEANE J
GAUDRON J

McHUGH J

MlT3/l/RB 1 8/6/90

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 JUNE 1990, AT 10.04 AM

Copyright in the High Court of Australia

MR B. DeBELLE, QC: If Your Honour pleases, I appear

with MRS. HANUS for the applicant. (instructed by

Piper Alderman)

DEANE J:  Mr DeBelle, the Registrar has been advised that the

respondent will not be appearing to oppose the

application for leave.

MR DeBELLE:  Yes, that is so, Your Honour. And might I say

in response also to that comment that we are prepared

to give the usual undertaking, should the Court be

minded to grant leave and we will undertake to pay

the costs of the appeal and, indeed, undertake further
not to interfere with the order for costs which was

made in favour of the respondent in the Full Court.

DEANE J: That disposes of one aspect of your application. I can

help you by saying that the Court considers the

question involved in the case to be one which

justifies the attention of the Full Court. Whether

you will ultimately be allowed to reargue the

question in CULLEN V TRAPPELL of course, is something

that we cannot finally determine as a Bench of three.

The problem that seems to us to be facing you

is that the application is an application for leave

to appeal from the answers to the questions and

FISHER V FISHER indicates that an appeal from the answers to questions in such a stated case would be

incompetent.

MR DeBELLE: Well, if I might address that.

DEANE J:  We are correct, are we, that the matter has not gone back before Mr Justice Cox for final orders to be

made?

MR DeBELLE: No, that is not so, sir. Could I indicate to

Your Honours just what has occurred, leading up to

the Full Court's judgment and, indeed, what has

happened since.

DEANE J:	I think it is since that would be of more relevance.
MR DeBELLE:	But at the risk of - going back a step further, still deal with what occurred before, Your Honours.
If Your Honours would see from the application book what Mr Justice Cox did, before he stated the case,
was to deliver judgment in which he determined questions of liability, he made an assessment of
damages and, indeed, made an order for costs. So
he disposed of all matters relating to the action
save and except for the question of interest.

That question then went on the case stated to

the Full Court. The Full Court gave its answers.

MlT3/2/RB 8/6/90

The matter has gone back to His Honour Mr Justice Cox.

His Honour has in fact determined an award of

interest and made orders.	So the whole action has
been disposed of by him.	He has deter~ined the
rights of the parties.

I must, in all propriety, Your Honours, inform

Your Honours that there has in fact been an appeal by

the respondent complaining of the amount of the

interest but not complaining of the principles by

which it was awarded. And this is a case which

determines principle and, indeed, what is occurring

in South Australia -

DEANE J: Sorry, there has been an appeal by your client?

MR DeBELLE:  No, no; by the plaintiff in the action, complaining

that the amount of the interest is not enough and

he has also complained of the award and I thought I

had to draw that to Your Honours' attention. But

we would say, notwithstanding that, that Your Honour

should hear this matter.

Might I indicate to Your Honours what is occurring

at the present time in South Austrlia is, in relation
to awards of interest, there are two courses being

adopted: the first is that questions of interest are

being reserved pending this Court's consideration of

the matter; alternatively if an order has been made

as to interest, then the defendant in those cases is

appealing the decision. So that in South Australia

the courts are awaiting, as always with some high

degree of expectation, what this Court might decide.

DEANE J:  Mr DeBelle, what procedure would you suggest be

adopted?

MR DeBELLE:	In relation to the further position of this matter?
DEANE J:	The application is for leave to appeal from the

Full Court's answers to questions.

MR DeBELLE:	Yes.
DEANE J:	Now, while FISHER V FISHER stands, and I am not

suggesting it will not stand, but while it stands

such an appeal is incompetent.

MR DeBELLE:  Your Honours, might I also refer to what this

Court has said in SWISS ALUMINIUM AUSTRALIA. In

SWISS ALUMINIUM AUSTRALIA the same issues as were

before the Court in FISHER V FISHER again arose

and Your Honours will recall - I have copies of

those cases here. That was a decision where the

question was whether a certain document was an exempt

document under the FREEDOM OF INFORMATION ACT and

the Federal Court determined that issue, having regard

MlT3/3/RB 3 8/6/90

to some grounds contained in the FREEDOM OF

INFORMATION ACT, but left other grounds open. So

that there was not a final disposition of the

question whether or not the document was or was not

an exempt document. The question of final

determination of rights of parties is addressed by the

Court at pages 425, 426 and 427 of the Courts'

reasons in that case and it refers to, on page 425,

MINISTER FOR WORKS (W.A.) V CIVIL & CIVIC and FISHER

V FISHER and so on. Tha1discusses the position in

that particular case. Then, at the end of its reasons,

the Court said, at page 426:

We accept that the question whether an

order finally determines the rights of a party is one which must be resolved in a

practical way. It would be wrong to adopt

an unduly technical approach by insisting

on the taking of a further purely formal

step in the proceedings for the sake of

achieving mere technical finality where

in every practical sense finality already

exists.

Not surprisingly, Your Honours, we fasten on that

passage. We would say that what has occurred here

is that the Court has given guidelines to the courts

in South Australia, in the exercise of their

discretion in relation to awards of interest. They

are guidelines only. All of the cases; indeed, the

case at bar and indeed WHEELER V PAGE to which

reference was made and, indeed, cases in other

jurisdictions, all make it clear that in terms of

the precise rate of interest, the precise period of

interest over which interest will be calculated,

and the amount in respect of which interest will be

calculated are all matters in the discretion of the

court.

But in terms of guilding principle - that is to

say whether there should be interest at a full

conrrnercial rate awarded in respect of pain, suffering,

principle, irrespective of the precise calculation.	loss of amenities of life pre-trial, is a matter of
And there is a set of -

DEANE J:  Mr DeBelle, the Bench as at present constituted obviously cannot deal with the FISHER V FISHER

question. If you wish this course to be taken, we
are prepared, on the undertakings you have indicated,
to refer the matter to the Court in Canberra on the

basis that it will be listed in the ordinary appeal

list and the parties will be expected to be ready to

argue the appeal. In this case, that would not

seem to involve any undue expenditure in terms of

appeal books and so m because the point is a very

confined one.

MlT3/4/RB 4 8/6/90

We do not propose to make suggestions as to

the course you should follow, apart from that,

because as you can see, we are only three and it

could well be a matter for the whole Court. But

you may given consideration to whether,to have a

fallback position, you may wish to apply for leave

to appeal from Mr Justice Cox's final orders and

if you decide to do that, that application will be

listed at the same time.

MR DeBELLE:	Thank you, Your Honour.
DEANE J:	You wish to adopt that course, do you?
MR DeBELLE:	One is always grateful to have a cushion,

Your Honour.

DEANE J:  No, I was not - you do wish to have the matter

referred to the Court in Canberra?

MR DeBELLE:  Oh yes, thank you, Your Honour.

DEANE J: Perhaps you could repeat the undertakings in relation

to costs that you are prepared to give, because it

would be on the basis of those undertakings that we

will refer the matter.

MR DeBELLE:  Thank you, sir. The undertakings were, first in so

far as the existing in the Full Court of the Supreme

Court of South Australia is concerned, an order for costs there was made in favour of the then plaintiff and we undertake not to interfere with that order.

Then so far as the costs of the appeal in the High

Court is concerned, we would undertake to pay the

costs of that appeal.

DEANE J: Thank you, Mr DeBelle. Since FISHER V FISHER is

involved, you will probably have to give

JUDICIARY ACT notices.

MR DeBELLE: If Your Honour pleases.

DEANE J:  Very well. Upon the undertakings given on behalf of

the applicant, we stand the application for special leave to appeal over generally on the basis that it

will be listed for hearing by the Registrar in the

ordinary appeal list in Canberra.

MR DeBELLE:  Thank you, Your Honours.

DEANE J: There will be no costs of the respondent of today,

presumably.

MR DeBELLE:  No, Your Honour.

AT 10.17 AM THE MATTER WAS ADJOURNED SINE DIE

MlT3/5/RB 5 8/6/90