Magneta Nominees v Webb

[2000] HCATrans 481

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P23 of 2000

B e t w e e n -

MAGENTA NOMINEES PTY LTD

Applicant

and

FLORENCE EMILY WEBB

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 27 OCTOBER 2000, AT 12.01 PM

Copyright in the High Court of Australia

MR R.H.B. PRINGLE, QC:   May it pleases your Honours, I appear with my learned friend, MR T. GALIC, for the applicant.  (instructed by Galic & Co)

MR R.W. BOWER:   May it please your Honours, I appear for the respondent.  (instructed by Corser)

McHUGH J:   Yes, Mr Pringle.

MR PRINGLE:   Your Honours, in this case we say that special leave points raised in the application are broadly:  the principles governing the duty of a trial judge to state reasons for his or her decision; secondly, the circumstances under which a new trial may be ordered ex gratia in a context of, firstly, inadequacy of the trial judge’s reasons, fresh evidence, inadequacy of the Full Court’s reasons on both those points, all of this giving rise to a clear miscarriage of justice.

In regard to the principles governing the duty of a trial judge to state reasons, your Honours’ Court did grant special leave in the case of Jones v Hyde for that matter to be ventilated.  Your Honours should have a small bundle of extracts from authorities.  A page from Jones v Hyde should be the first one and there is a very short judgment by his Honour Justice Brennan.  On the paginated bundle, page 1, your Honours will see a short judgment there where his Honour explained that special leave had been granted on this point in that case but that, in the event, it did not arise for decision.

My investigations, together with the librarian and his computer and a few printouts, have not suggested that there is any decision on the point in your Honours’ Court in a civil case.  The only one that I have been able to find where a decision was made was in the case of Fleming, which is also in the bundle, but that turned on the construction of two sections in legislation in New South Wales.  We would respectfully submit that that does not cover this case.  We also say that the complaints about the want of reasons can be demonstrated that this is a suitable vehicle for the consideration of those points.

May I take your Honours very briefly to only a few of the authorities in that bundle.  May I start with the second page.  Your Honours will see pages 2 and 3 are extracts from your Honour Justice McHugh’s reasons in Soulemezis v Dudley (Holdings).  I only want to take your Honours to two passages.  On page 2B to C:

The giving of reasons for a judicial decision serves at least three purposes.  First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision.  As Lord MacMillan has pointed out, the main object of a reasoned judgment “is not only to do but to seem to do justice”.  Thus the articulation of reasons provides the foundation for the acceptability of the decision by the parties and by the public.  Secondly, the giving of reasons furthers judicial accountability.  As Professor Shapiro has recently said:

“… A requirement that judges give reasons for their decisions – grounds of decision that can be debated, attacked, and defended – serves a vital function in constraining the judiciary’s exercise of power.”

I will not go into the third one which does not apply here.  May I respectfully suggest that there is another reason, and that is that if all the points in the evidence of central importance are embodied in the reasons for judgment, it will help in avoiding error and in avoiding problems such as have arisen in this case.

The only other passage in your Honour’s reasons to which we would like to refer is on page 3G of the bundle, right at the foot of the page, just the last two sentences.  Your Honour there said:

Thus more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies.  In the first class of case, unless the basis of the decision is properly articulated, the losing party may be effectively deprived of his right of appeal.

The next case is Mifsud v Campbell and there an even shorter passage which I wish to refer to your Honours.  That is on page 5 of the bundle and it is really the little passage that starts just above letter E.  Your Honours will see that Justice Samuels said:

However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge – as the defendant’s denial of having consumed alcohol – may promote a sense of grievance in the adversary and create a litigant who is not only “disappointed” but “disturbed” – to use the words which appear in the New Zealand case of Connell v Auckland City Council [1977] 1 NZLR 630 at 634. It tends to deny both the fact and the appearance of justice having been done.

There is only one other authority to which I wish to refer your Honours and that is – unfortunately a couple of pages were left out when the bundle was first sent.  That was remedied a couple of days ago.  Do your Honours have pages 17 and 18?

McHUGH J:   No, I have 17.

MR PRINGLE:   But you should also have 18, your Honours.

McHUGH J:   I do not have 18.

MR PRINGLE:   May I hand up my copy.

McHUGH J:   You can read it.

MR PRINGLE:   This is the point on ex gratia.

McHUGH J:   Mr Pringle, we are familiar with all these authorities.  We have them cited to us regularly.  You would be better spending your 20 minutes by showing us where the judge failed to apply these principles.

MR PRINGLE:   That is not a point on this one; it is a rather rarer point of grant of a new trial ex gratia.  If I can invite your Honours’ attention just to the last little passage quoted from a Victorian judge which says that “The court can grant in a proper case a new trial ex gratia even if the trial miscarried due to the fault of the applicant for a new trial”

HAYNE J:   Let us understand this, shall we, Mr Pringle?  What you are looking for is new trial about issues which turn centrally upon a conversation that occurred in May 1990.  You would have us order a new trial to be run about the content of one conversation that occurred well over 10 years ago when it has been through the judicial system in several respects.  It is less than promising, I would have thought.

MR PRINGLE:   Your Honour, the only issue we wish to raise is the question whether a misrepresentation was made on that occasion.

HAYNE J:   Yes, and that depends on what was said and what was not said.

MR PRINGLE:   May I show your Honours what we complain about and then your Honours can look at the point you have made against me in that context.  There are really three steps here.  There was the trial, and there may I take your Honours to the quotation of some evidence on pages 88 to 89, I think it is.  I do not know whether your Honours have read ‑ ‑ ‑

McHUGH J:   Yes, I have read every page of the book, some parts of it several times.

MR PRINGLE:   If it please your Honours.  May I just say that in regard to page 89, your Honours will see in the middle of the page the statement that the respondent was surprised when Mr Chesson brought with him a lease, because she had just had a discussion with him in ‑ ‑ ‑

McHUGH J:   Yes, I know, but Chesson himself got it wrong.  He said that he gave the directions to prepare the lease.  It now turns out that it was the other employer.  At least, that is what appears from the new trial material.  I mean, there is a lot to be said for your case on the findings of fact, but the trial judge rejected it, it was upheld by the Full Court, they have considered the application for a retrial.  What is there about the case that warrants the grant of special leave?  We do not sit here as the general Court of Appeal and our workload is getting such, brought about by an enormous increase in the number of special leaves to appeal, that it will have to be a ground shortly that we will have to refuse some cases simply because of the burden of work.  Justice Deane has said in the past that that is a legitimate ground.  I have never accepted it hitherto, but I think I may have to.

MR PRINGLE:   Your Honour, may I say that this case will be a very short one.

HAYNE J:   It is only a little bit pregnant, yes.

MR PRINGLE:   Yes, but anyway, may I take your Honours to page ‑ ‑ ‑

McHUGH J:   But what it comes to is an examination of all the facts of the case.  There is nothing more to the case than that.

MR PRINGLE:   May I take your Honours just to two aspects, but may I take your Honours to it sufficiently.  Can we start then with a comparison of Chesson’s evidence on 88 with the respondent’s evidence on 89.  We say it gives rise to four points.  We say that what the trial court ought to have dealt with are firstly, the fact that the lease which was brought round on 8 May 1990 had a commencement date of 9 May, although there had been no discussion about terms, according to the respondent.

The next one is that the document contained a rent‑free period of six months which, on the respondent’s evidence, had not been requested.  The lease contained a term and the rent, a term of five years, rent of just over $1,000 a month, and the usual variable outgoings and provided for the six month rent‑free period.  The agreement about the rent‑free period meant that the first payment of rent was going to fall due on 9 December, apart from the deposit which was ‑ ‑ ‑

McHUGH J:   Yes, but you are going back and referring to this.  Judgment was given in the first appeal as long ago as 29 October 1998.  There was no special leave application in respect of that.  Then in April of this year, after you lost out on the fresh evidence point, you bring a special leave application and you want to raise issues that relate to the original judgment which is the subject of the appeal in October 1998.

MR PRINGLE:   May I just finish the fourth point and then deal with your Honour’s point?

McHUGH J:   Yes, certainly.

MR PRINGLE:   The fourth point is that the alleged misrepresentation that the entrance would be changed by the end of July of that year – that is from May to July – was going to be falsified before the next payment of rent fell due, by about six months.  The rent was only $1,000 a month.  There was only a term of one year.

McHUGH J:   But, Mr Pringle, these are questions of fact.  They do not get within cooee of raising a special leave point.

MR PRINGLE:   But may I just take your Honours to what was done about those points in the judgment.

McHUGH J:   Which judgment are we talking about?

MR PRINGLE:   The judgment of the trial judge.  He dealt with it on pages 12 and 13 in a very short passage which starts four lines from the bottom of page 12 of the application book.  It reads:

In my view it is clear from the evidence that Chesson visited Webb on 8 May 1990 with the intention of having her sign the Offer to Lease and to obtain a cheque from her committing her to the lease.  Despite Chesson saying in evidence that Webb asked for a six month rent free period when she telephone on 8 May 1990 the lease produced by him later that day specified a five year lease commencing on 9 May 1990.

May I just pause to comment that that is an incoherent sentence.

McHUGH J:   Whether or not it is, nothing was done about bringing a special leave application in respect of the judgment.  You had the judgment by the Full Court in 1998; you did nothing about it.  Then you find out that Mrs Webb gave evidence before the tribunal or whatever it was which was inconsistent in some respects with the evidence that she had given, and so you put on this application for a new trial based on further evidence you get from one of your own employees.  Now you want to raise all these issues.  They are just issues of fact.  Mr Pringle, this Court expects practitioners, particularly senior counsel, to advise in respect of special leave applications with some care.  They should not be brought and trouble this Court’s time unless there is an arguable special leave point.  Speaking for myself, I cannot see the slightest case for special leave in this case.

MR PRINGLE:   I asked your Honours to look at two points.  May I just finish those two?

McHUGH J:   Yes, certainly, but they are questions of fact that you are raising.  There is no point of principle that is involved in the case.  All you are saying is the judge was wrong on the facts.

MR PRINGLE:   No, that is not what I am saying by any means.  What I am saying in regard to that paragraph, which is the paragraph in which he disposed of the dispute between them that I referred your Honours to on page ‑ ‑ ‑

McHUGH J:   On a subsidiary issue.

MR PRINGLE:   No, this is the central issue.

McHUGH J:   Well, it is not.  It is a subsidiary issue in the sense that it is a fact that you rely on as throwing some probability on what would have been said in the conversation.  It is not the critical issue in the case.

MR PRINGLE:   But, your Honours, none of those four points is addressed in that paragraph, or anywhere.

McHUGH J:   So what, at this stage of these proceedings?  You had your chance to bring a special leave application in respect of the reasons for judgment.  Now you are trying to run that now under the guise of an application to appeal against the judgment that was given this year.

MR PRINGLE:   May I tell your Honours what happened in that regard, because the order was not taken out.  There was no order taken out and, while the appeal was still on foot, the application was made last year and one of the points we asked, because those four points had not been addressed and bringing to the attention of the Full Court the State Rail of New South Wales Case, said that the Full Court was invited to look at the question of whether the trial judge dealt with all the facts.

McHUGH J:   Yes, but look, your application for special leave to appeal here is against the judgment of the Full Court dated 1 March 2000.  At the moment you have not touched the reasons for that judgment at all.  You have concentrated an attack on the judgment of the trial judge in the original proceedings.

MR PRINGLE:   Your Honour, what I was coming to was that we asked the Full Court in the hearing in this last appeal to have another look at this point, and I in fact reargued that point and it was held that the reasons both of the trial judge and of the Full Court in the previous hearing were not to be complained about.  That was dealt with in this hearing.  We put it on the basis that not only do we have a case where the reasons were inadequate, but we also have fresh evidence with another facet of the same complaint, which is the evidence of Hindle.  So that it was dealt with, your Honours.

McHUGH J:   It was dealt with by the judge reciting your point at page 66 line 1 and then at page 71:

Finally, the appellants refer to State Rail…..as authority for the proposition that an appeal may be successful…..I do not understand this to be a new proposition, and I do not understand it to be inconsistent –

et cetera.  That is how Justice Wheeler dealt with it.

MR PRINGLE:   Yes.  The Full Court in the first hearing did not deal with those four points either, and that was what we were complaining about.  Neither the trial judge nor the Full Court in its first hearing had dealt with those four points.  That was reargued ‑ ‑ ‑

McHUGH J:   Mr Pringle, the most you can say is that the trial judge failed to deal with the point or the trial judge did not give reasons for dealing with the point.  There is no special leave question.

MR PRINGLE:   All right.  May I take your Honours to the last point?

McHUGH J:   Yes, certainly.

MR PRINGLE:   We start off with the summary of Hindle’s evidence on page 90, just paragraph 5 which occupies the bottom two‑thirds of that page.  Your Honours will there see that he received a telephone call from the respondent on 1 May:

She said she was interested in restarting the shop.  She said she would need a six month rent free period…..She said she would contact Mr Hindle again after inspecting the shop.  She did so two or three days later.  Mr Hindle told the respondent she would be given a six month rent‑free period.  She said she would take the shop, and wanted to be in occupation by Mother’s Day.

McHUGH J:   I know, but the Full Court took the view it was not fresh evidence, that she should have known about it.  That seems to be the case.

MR PRINGLE:   Your Honours, may I just finish this?  It is going to take just a few seconds:

He said he would get the lease prepared, and would call her when it was ready for signature.  On 8 May the respondent telephoned and enquired whether the lease had been prepared.  Mr Hindle said it had not, but that he would try to get it completed that day.  She telephoned again and asked for the lease to be brought to her shop in Kardinya at 5.30pm, and said that she would give him a cheque and that he should bring the keys.  Mr Hindle said he could not come personally, but would arrange for someone else to do so.  Mr Hindle asked Mr Torre to take –

those items.  When you go to what the Full Court did and you go to page 68, your Honours will see that the argument is recited that if Hindle’s evidence is believed:

it necessarily entails the conclusion that Mrs Webb was untruthful in her evidence at trial.

McHUGH J:   Yes, but look at 68, paragraph 13.  The judge says:

Taking the more narrow “fresh evidence” point first, I am not persuaded either that Mr Hindle’s evidence could not have been discovered with reasonable diligence prior to trial…..nor am I persuaded that the effect of the evidence is to cast sufficient doubt upon the respondent’s case to require a reopening of the appeal.

The judge may be right or wrong about those conclusions, but they are not special leave grounds.

MR PRINGLE:   But look at paragraph 15, your Honours, on page 69.  That is the real complaint:

Further, Mr Hindle’s evidence, if accepted, would tend to suggest that in her initial discussion with him, Mrs Webb indicated that she definitely wished to take a lease of the shop.  While it is a matter which would be desirably explored in cross‑examination of Mrs Webb, such an indication is not necessarily inconsistent with the proposition that when Mrs Webb spoke to Mr Chesson, she was not at that time certain whether she wished to take the lease or not and

that, in order to resolve her doubts, Mr Chesson made the representation alleged.

McHUGH J:   I notice your time is up, Mr Pringle.

MR PRINGLE:   May I make just two ‑ ‑ ‑

McHUGH J:   Your time is up.  Would you please sit down, Mr Pringle.

MR PRINGLE:   If you please.

McHUGH J:   Yes, the Court does not need to hear you, Mr Bower.

Special leave in this matter will be refused.  The Court is of the opinion that the case raises no question warranting the grant of special leave to appeal.

Do you ask for costs?

MR BOWER:   I do, your Honour.

McHUGH J:   Yes.  The application is dismissed with costs.  The Court will now adjourn to reconstitute.

AT 12.24 PM THE MATTER WAS CONCLUDED