Mann v Carnell

[1999] HCATrans 92

IN THE HIGH COURT OF AUSTRALIA

Registry  No C25 of 1998

B e t w e e n -

ARNOLD MANN

Applicant

and

ANNE KATHERINE CARNELL

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 16 APRIL 1999, AT 9.37 AM

Copyright in the High Court of Australia

DR A. MANN appeared in person.

MR C.M. ERSKINE:  May it please the Court, I appear with my learned friend, MR R.T. BAYLISS, for the respondent.  (instructed by the ACT Government Solicitor).

KIRBY J:   Perhaps I should put on the record that I have known Dr Mann indirectly over several years in the Academy of Forensic Sciences.  I disclosed that when his earlier case came before the Court.  He raised no objection and the other party raised no objection.  My acquaintance with Dr Mann has been not intimate or close but I think I ought to reveal that that is the environment in which I met him and I do not feel embarrassed to sit, but I thought I should once again put that matter on the record.

MR ERSKINE:   Thank you, your Honour, and I join with the previous litigants in raising no objection to your Honour sitting on this case either.

KIRBY J:   Thank you.

GUMMOW J:   Yes, thank you, Mr Erskine.  Dr Mann, I thought we might be assisted by hearing first from Mr Erskine as to what he says in opposition to your application.

MR ERSKINE:   Thank you, your Honour.  May it please the Court, it is our contention that this case, whatever legal issues it might raise, is not a suitable vehicle for the grant of special leave to enable those issues to be ventilated. 

We would begin by noting that it arises out of some very peculiar, possibly unique, facts.  As the Court will be aware, particularly from the applicant’s own statement of argument in this case, he sued the Australian Capital Territory in contract and in defamation.  That case was settled in 1997 – and I use that term relatively loosely - through the ‑ ‑ ‑

GUMMOW J:   We understand the background, I think, Mr Erskine.

MR ERSKINE:   Yes.  But, in our submission, it is interesting to note that he then immediately wrote to Mr Moore, an independent member of the Legislative Assembly, and asked for a public inquiry, in effect, to reopen the issues that had been settled in the litigation.  In the course of considering that question, Mr Moore was, as the Court is aware, given access to legal advices on a confidential basis.  And what is now sought is access to those documents on the possible defamation that arises out of the very inquiries that the applicant had originally, in fact, sought to bring about through the parliamentary process.

KIRBY J:   I think you should assume that we have read the papers and we know - - -

MR ERSKINE:   Yes, I have now moved off the facts, your Honours.  But as your Honours will also be aware, this case has been considered according to two different bases in the courts below.  Before his Honour the trial judge, it was dealt with according to his Honour’s understanding of the common law; and before the Full Federal Court it was dealt with according to the Evidence Act and that issue is one that, of course, is a matter of some interest to the conduct of cases.  But it is our submission that it is important to understand that this case has been a captive and not a cause of the differences of opinion in the courts below as to the application of the Evidence Act to cases such as this one. 

GUMMOW J:   It may be that the Evidence Act becomes involved on any footing, does it?  It may be because as there was a trial eventually, the Evidence Act would apply to that, I take it.

MR ERSKINE:   Oh, unquestionably, your Honour, there could be no argument about that.

HAYNE J:   And may that not therefore reflect back on the issues presented by Order 34A rule 5(a)?

GUMMOW J:   At this threshold stage.  Maybe you have to look at what the end result could be.

MR ERSKINE:   We do, your Honours, and of course that then raises for consideration what fell from their Honours in the Full Federal Court in the Esso Australia decision where, in a somewhat different context of dealing with discovery, rather than preliminary discovery, their Honours concluded that it would be an inappropriate exercise of the discretion simply to refer to the ultimate result of the Evidence Act if the matter were to go to trial.

HAYNE J:   But does not this case, on the view that the Evidence Act may bear on the issue presented by Order 34A rule 5(a) then raise the question of the circumstances in which waiver under the Evidence Act can apply?  That is, may it present both waiver at common law and waiver under the Evidence Act?

MR ERSKINE:   It may indeed, your Honours, but ‑ ‑ ‑

HAYNE J:   And if it does, why is it not a suitable vehicle for the discussion of those matters which I understand to be the principal thrust of your argument?

MR ERSKINE:   Yes.  Because it would say this, your Honours:  regardless of which of the two paths one has to go down, whether it be the common law or whether it be the Evidence Act, to decide the application for preliminary discovery, we say the result is almost inescapably the same.  So the issue that would have to be determined by this Court is not the result of the case, but the path down which one follows, and it would be our submission that that would not make this an appropriate vehicle or a suitable vehicle for the determination of some of these questions if, in fact, the result is the same either way.  I concede immediately that the test is different both ways.  If one passes down the common law path, of course, one looks at the well-settled principles that fall from this Court, in Goldberg’s Case in particular.  If one passes down the Evidence Act path, we say there is nothing unexceptional at all in the way in which the Full Federal Court approached the question of confidentiality and the application of ‑ ‑ ‑

GUMMOW J:   And waiver?

MR ERSKINE:   Well, in the context of waiver of 117 and 122 in particular of the Evidence Act. 

GUMMOW J:   Now, we heard a very detailed argument on common law, whatever it was, in the BT Case last year which, as happened, was ultimately settled.  If there were a grant of leave, it would be useful for both sides to look at that material, I suspect.

MR ERSKINE:   I have no doubt there would be many things that would be very useful to look at, your Honour, in this context.  But, in our submission ‑ ‑ ‑

GUMMOW J:   You mentioned Goldberg v Ng.  What I am putting to you is that there were questions other than the application of Goldberg v Ng wrapped up in this question of common law waiver.

MR ERSKINE:   Well, your Honours, I suppose ‑ ‑ ‑

GUMMOW J:   You do not need to explore it now, but that seems to be so.

MR ERSKINE:   Yes.  I suppose I can respond to what your Honour has said tangentially by saying that – and it perhaps brings me back to the way I opened the submissions which is that the facts of this case are quite peculiar and what ultimately arises in an analysis of the way the question, we say, is really an application of uncontroversial facts, because there was effectively no great contest between the parties before his Honour the trial judge to what are effectively uncontroversial legal principles, particularly those relating to Goldberg.  So that this is, in that sense, really a case of application of uncontroversial facts to uncontroversial law, and if that be the case, then going down that path – that is the common law path – we would say, with respect, this is not a case which would attract the special quality required for a grant of special leave.

If it passes down the Evidence Act path, if what your Honour Justice Hayne has put to me be correct, then in fact Order 34A picks up the Evidence Act, then we would say that the way in which the Full Federal Court approached this matter in a single unanimous judgment is quite unexceptional in its analysis of the legislation. 

HAYNE J:   In particular its analysis of the relationship between 122(2) and 122(4)?

MR ERSKINE:   Yes, your Honour, because they referred to the other significant previous authority on that which was Justice McLelland’s decision, and we would say, with respect, that the result that the Full Federal Court came to is – one is almost compelled to that result by the structure of the section because if the section were to mean that one had to comply with each of the steps in section 122 then effectively section 122 is so much waste paper, except for some very, very, very unusual cases which manage to get through every single gate set out in those subsections.  So it is in that respect we say that the analysis by their Honours in the Full Federal Court is quite unexceptional.

KIRBY J:   Now, Dr Mann has to commence his proceedings by a certain time, is that not correct?

MR ERSKINE:   That is so, your Honour.  There has been an amendment to the Limitation Act of the ACT.  In respect of new causes of action, it is one year after the cause of action arises; and in respect of existing causes of action – this is all in relation to defamation – section 4(2) of the Amending Act has started the limitation period running from the commencement of the Act, which is from memory 27 November last year, as I recall it.  So that Dr Mann is facing the limitation period expiring somewhere towards the end of November this year.

KIRBY J:   Could he commence the proceedings and leave them in abeyance until the Court had determined the matter, or not?

MR ERSKINE:   Well, your Honour, in principle, it is always open to an applicant or a plaintiff in a situation like that to begin the proceedings and to seek the processes of the Court.  Whether that is an appropriate use of Order 34A rule 5 in particular is something we would have to have a look at.

KIRBY J:   What else could he do if the matter gets caught up in this Court?

MR ERSKINE:   In the circumstances, your Honour, one cannot think of too many other things that he could do.  He could endeavour to make use of the extension of time period in section 21B(2), but, of course, that does not expressly refer to being able to extend time for cases where the cause of action is already complete, as it were.

KIRBY J:   I am only looking at the practicalities ‑ ‑ ‑

MR ERSKINE:   I understand that, your Honour.

KIRBY J:    ‑ ‑ ‑ because there is also the likelihood, as we understand it, that there is an application for special leave in the Esso matter, and if that were granted, it then would be desirable that in some way this application or this appeal would be tied in with the hearing of that matter where there may be common issues.

MR ERSKINE:   Well, your Honour, there is, may I say with great respect,  a superficial attraction to that course but when one actually analyses the issues that are predominant in a case such as Esso and compares them with the issues that are predominant in a case such as this, we would say there actually is very little that is common to the two of them, other than that in both cases broad questions of client legal privilege under the Evidence Act would arise.  But they are quite different in relation to the ultimate question involved, as I understand the Esso decision, and they are radically different in the circumstances in which the facts arise, such that while the Esso decision may be of considerable wider significance because it is a much more common eventuality, the circumstances of this case, one would think, are unique.

GUMMOW J:   But if Dr Mann were to commence, as it seems to me as a practical matter he is bound to do, before November, commence an action, does not that render as superfluous – that is spent, really.  This present dispute it is all about what he should know before he commences.

MR ERSKINE:   That is so, your Honour, and ‑ ‑ ‑

GUMMOW J:   He seems to have got trapped in this statutory time straitjacket.

MR ERSKINE:   Yes, your Honour, and perhaps it is another indicator of the fact that this case has been a captive and not a cause of some of the issues that have blown up around it.

KIRBY J:   When was amendment introduced or enacted to reduce the time?

MR ERSKINE:   It was, I believe, introduced into the Assembly in August of last year and the gazettal indicates that it came into effect on 27 November 1998, which means that the 12 months would expire on or about 27 November 1999. 

KIRBY J:   That is after the commencement of the proceedings in this case?

MR ERSKINE:   Yes.  Indeed, it would have been shortly after the matter was argued before the Full Federal Court.  One of the unfortunate things about this case is that events have seemed to keep on happening just after matters are argued or just before matters are handed down for decision.

KIRBY J:   I do not think the amendments would have been within Dr Mann’s control.

MR ERSKINE:   No, your Honour, they would not have been.  They would have been in control of the Legislative Assembly in which this is a minority government.

GUMMOW J:   And this legislation applied to causes of action already running, did it?

MR ERSKINE:   Your Honour, the Amending Act – do your Honours have copies of the Amending Act?

GUMMOW J:   Yes.

MR ERSKINE:   Section 4 of the Amending Act inserts section 21B which has two subsections, but if your Honours turn the page of the Amending Act to subsection (2), which is in bolder type, of the Act itself, it provides for a transition period for causes of action that are already under way, that have already accrued, if you like, at the time that the Amending Act comes into force.  For those actions, the operative date from which time begins to run is the date of the commencement of the Act.  From just underneath the title of

the Act your Honours will see in italics that it was notified in the Gazette on 27 November, which one can take to be the commencement date of the legislation.

GUMMOW J:   Yes. 

MR ERSKINE:   Your Honours, we would also note in relation to the question of the common law application of the facts to the case that because of the way in which his Honour the trial judge approached the matter, his Honour did not actually think it necessary to consider in any great detail the evidence that was led by the respondent in the court below as to the application of the common law approach to imputed waiver.  So that, as yet, of course, this Court does not have the benefit of the opinions of courts below as to whether the facts of this case would give rise to or not give rise to an imputed waiver.  So that if the matter were to be granted special leave, your Honours would, in fact, be the first court that would have to focus upon that particular question, which we would say, again, is perhaps a small factor, but another factor to illustrate why this may not be a suitable vehicle to get at what is, of course, a matter of considerable interest, which is the application generally of these parts of the Evidence Act to litigation. 

Your Honours, I think that there is probably not much more that we can add to our written submissions, unless there is some other matter in which we can assist the Court.

GUMMOW J:   Yes, thank you, Mr Erskine.

MR ERSKINE:   Thank you.

GUMMOW J:   Yes, Dr Mann.

DR MANN:   Your Honours, I do not need to emphasise to your Honours the importance of the Evidence Act.  It applies not only to ‑ ‑ ‑

GUMMOW J:   I think we appreciate that, we appreciate the importance of the issues, but there seems to be this straitjacket of time limitations under the ACT law that have been imposed, which make it imperative for you to commence an action, if you are ever to commence one, on or before 27 November this year. 

DR MANN:   Your Honour, I have spoken to my legal advisers about this.  I do not know whether they are correct in this, but they state that I can commence an action without specifying the exact words.  I would find that very difficult to sustain, but if that is possible ‑ ‑ ‑

KIRBY J:   Is it possible in the Capital Territory simply to issue a writ?

DR MANN:   Yes, I would simply issue a writ, and then wait for the statement of claim once this Court had made its decision in the matter.

GUMMOW J:   Yes, but the trouble is that this particular procedure you have invoked here is all about finding out things, taking steps, before you start.

DR MANN:   I am aware of that, your Honour.

GUMMOW J:   Once you have started, it seems to make this present application otiose, do you see what I mean?

DR MANN:   But, your Honour, I think that one has to also pay some attention to the schedule of times that were involved in this matter of the Amending Act.

KIRBY J:   I think we realise what has happened. 

DR MANN:   Each step interleaved with another step in producing the amending legislation.  Is it permissible for a defendant respondent in such an action to amend this legislation to suit herself?

KIRBY J:   But it is not the defendant alone, it is the Assembly of Capital Territory.

DR MANN:   I understand that, but does it involve a constitutional matter?  I mean, are legislatures allowed to do such things?  Because, if we take the dates, there was no mention of an amending legislation until after the application for special leave in the Federal Court.  At that time they did not know that leave did not need to be applied for.

KIRBY J:   Are you suggesting that the respondent to this application has used her position as a member of the Assembly to secure an amendment to the law that, in effect, protects her position and disadvantages you?

DR MANN:   Well, your Honour, I have here a schedule of events, and the coincidences are completely remarkable.

KIRBY J:   But if the Assembly enacts a ‑ ‑ ‑

GUMMOW J:   We could not possibly embark on that inquiry.

DR MANN:   Well, it is a peculiar situation where a litigant is prevented from bring his case because the respondent stops him with the legislation.

GUMMOW J:   If you feel there is any question of invalidity, it is for you to get legal advice on that question.

DR MANN:   Yes.  Well ‑ ‑ ‑

KIRBY J:   Parliament has not been unknown to enact laws that effectively take away people’s causes of action.

DR MANN:   Well, your Honour, if that is the end of the matter, I need not address your Honours any more, but if ‑ ‑ ‑

KIRBY J:   It is not usual to do so, but it has happened.  It is not usual to do so, and, indeed, the usual rule is that Parliament preserves the position of litigation which is pending, but if it happens, then unless you have some point that I do not see, it seems to be practically fatal to your application.  I think you acknowledge that.

DR MANN:   Well, then at least I suggest, your Honours, if that is the decision of the Court, I should not be obliged to pay costs in the matter.

GUMMOW J:   Yes, we understand that.  I only emphasised it to you, and we all wish to emphasise to you, Dr Mann, it is very important that you get legal advice on these matters.  It is very important you take legal advice in these sort of questions that do arise.

DR MANN:   Yes.

GUMMOW J:   But at the moment there is no question of the invalidity of this law in any proceeding that we know of.  That being so, it must be taken to be valid, and as a law to be read on its face, it seems to have this rather harsh, from your point of view, consequence.  That is where it seems to lie at the moment.

DR MANN:   That is, of course, why I asked for this application for special leave to be heard simultaneously with the appeal itself.  That is what I said at the end of my application book, because I knew I was running out of time.  In fact ‑ ‑ ‑

GUMMOW J:   Yes.  I am not suggesting you have delayed at all.  It is the legislature which has moved perhaps rather sharply and quickly, yes.

DR MANN:   There is another point, your Honour, that I think your Honours may need to consider, and that is the impact which the Federal Court judgment will have on the adducing of evidence.

GUMMOW J:   Yes, we understand that.

DR MANN:   And I think it creates a sea change in the law of evidence.  Now, I cannot see how that judgment can be allowed to lie.

KIRBY J:   I wonder if I could ask Mr Erskine a question.  Mr Erskine, if special leave were granted and the Court were able to hear and determine Dr Mann’s application before November, then no problem is presented by the passage of the Amending Act, is it?

MR ERSKINE:   Not that we can see, your Honours, no.

KIRBY J:   So, all that is involved is great inconvenience to this Court that we grant special leave and hear the matter before the Act has its effect?

MR ERSKINE:   That is so, your Honours, yes.

KIRBY J:   Why should we not do that?  Why should we allow the legislature in which a litigant is a member to, in effect, take a party out of the party’s rights before this Court which that party has invoked?

MR ERSKINE:   Your Honours, may I say at the outset that we have never put to this Court that it was effectively impossible for this Court to grant special leave and to hear the matter were it so minded.

KIRBY J:   You have not put it, but you know the way the Court operates and the pressure under which it operates, and therefore the reality is, effectively, it is not impossible, but extremely difficult.

MR ERSKINE:   I understand that.

KIRBY J:   Why should this Court allow that to happen to a litigant who has invoked the process of the High Court of Australia?

MR ERSKINE:   Your Honour, the main response that I would make to that is first of all, to say that while the respondent to this application may be a member of the Assembly, it requires a vote of another eight members to support that ‑ ‑ ‑

GUMMOW J:   We understand all that, but what I want to put to you, Mr Erskine, is this:  this bar is something that could be waived by your client, is it not?

MR ERSKINE:   That, your Honours, is itself a question.

GUMMOW J:   In itself a question, is it?

MR ERSKINE:   Would your Honour pardon me for one minute.

GUMMOW J:   Mr Erskine, if the Court were minded to grant special leave in this matter and heard it as expeditiously as other obligations permit it, and if it were still reserved on 27 November, and if, on continuing the hypothesis, the appeal were successful, and if the result of that was some delay in the institution of proceedings, but that the delay was no more than that which flowed from the fact the Court was still reserved on 27 November, would your client be prepared to undertake to not rely on this defence in so far as there is any delay flowing from that period?

MR ERSKINE:   I have to say, your Honours, that I do not ‑ ‑ ‑

GUMMOW J:   You have to instructions on that.

MR ERSKINE:    ‑ ‑ ‑ I do not have instructions on that and I am not entirely sure how quickly we can get them, but we will get them as expeditiously as we can; and I do appreciate the force of what your Honours are putting to me on that particular question.  The only thing I can say is if your Honours were minded to grant us some time to get instructions, we will do it as fast as we can, but I do not know how quickly we can get them.

GUMMOW J:   Yes.

KIRBY J:   Do you in your submission agree that this is a defence that could be waived, or is it one which has effect by operation of law?

MR ERSKINE:   Your Honour, it is a matter that would have to be looked as to whether it is one of those limitation periods that is an absolute bar and cannot be waived, or whether it is a matter that arises if it is pleaded on its ‑ ‑ ‑

HAYNE J:   Do you make no submission now?

MR ERSKINE:   I make no submission on that at the moment, your Honour.  It is ‑ ‑ ‑

HAYNE J:   That is indeed startling.

MR ERSKINE:   Yes.  Your Honour, it is ‑ ‑ ‑

HAYNE J:   The Court is placed in a position where no submission is made about the effect of this limitation period in these circumstances.  That is startling.

MR ERSKINE:   I accept that, your Honour.

GUMMOW J:   Now, you also have to bear in mind Georgiadis’ Case, do you not?

MR ERSKINE:   We do, your Honour, yes.

GUMMOW J:   Yes.  Very well.  Is there anything more you want to say now?

MR ERSKINE:   There is nothing I can add, your Honour, no.

GUMMOW J:   Yes, all right.  We will take a short adjournment.

AT 10.05 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.09 AM:

GUMMOW J:   Dr Mann and Mr Erskine, we are minded to stand this matter down until noon to enable you to seek those instructions we have foreshadowed.

MR ERSKINE:   I am indebted to your Honour.

DR MANN:   Thank you.

MR ERSKINE:   I suspect that by noon, your Honour, will also be able to address the point that your Honour Justice Hayne has raised as well.

GUMMOW J:   Yes.  Now, you do have in your Self-Government Act in the Territory, do you not, a requirement about just terms?

MR ERSKINE:   Yes, I believe there is, your Honour.

GUMMOW J:   Yes, I thought so.

GUMMOW J:   Yes, thank you.

AT 10.09 AM THE MATTER WAS ADJOURNED
UNTIL LATER THAT DAY

UPON RESUMING AT 12.08 PM:

GUMMOW J:   Yes, Mr Erskine, what is the position with these instructions?

MR ERSKINE:   Your Honour, it clear that section 4(2) of the Limitation Act 1988 is in its terms procedural or not substantive, and it is therefore open to the respondent to give the undertaking which I now proffer, and the undertaking would be in these terms:  if the Court is minded to grant special leave, the respondent undertakes not to rely upon section 4 ‑ ‑ ‑

GUMMOW J:   Undertakes to Court.

MR ERSKINE:   Thank you, your Honour  ‑ ‑ ‑ not to rely upon section 4(2) of the Limitation (Amendment) Act of the ACT 1998 in any proceedings brought by the present applicant arising out of the provision of the documents, the subject of these proceedings, by the respondent to Mr Michael Moore MLA in December 1997; and that is subject to a proviso that the applicant file and serve the originating process in those proceedings within two months of the determination of this appeal by the Court.

GUMMOW J:   Yes, thank you Mr Erskine.  Do you have anything to say about that, Dr Mann?  It seems to us to be a reasonable undertaking.

DR MANN:   I can not possibly have any objection to that course of action, your Honours.

MR ERSKINE:   Your Honours, there was one very short matter in which your Honour Justice Gummow asked if there was a just terms provision in the Self-Government Act. Curiously, it is couched in the negative, but it can be found in section 23(1)(a) of the Australian Capital Territory Self‑Government Act, which indicates that the Assembly has no power to make laws with respect to the acquisition of property otherwise than on just terms.

GUMMOW J:   Yes.

MR ERSKINE:   So it is a limitation on power, rather than a grant of power.

GUMMOW J:   Yes.  Yes, thank you.

KIRBY J:   Is that not what it is in section 51(xxxi)?

MR ERSKINE:   I think it is, your Honour, yes.

GUMMOW J:   As interpreted, that is what it comes to.

MR ERSKINE:   Yes.

KIRBY J:   I think we should thank you, Mr Erskine, for ‑ ‑ ‑

GUMMOW J:   Yes, for getting instructions so promptly.  On that undertaking, which is accepted by the Court given by the respondent by counsel, there will be a grant of special leave in this matter.

MR ERSKINE:   May it please the Court.  There is one matter which I may be presumptuous to raise with your Honours, and that is the question of which issues in particular are to be the subject of the grant of special leave because this is a fairly wide-ranging case, at least in the abstract.  And one of the difficulties that we would submit exist at the moment is that one of the key questions, which whether the Evidence Act is applicable to the present circumstances, is not an issue that currently has been addressed in any way by the applicant in his current submissions, and it would therefore be our submissions that this would be a case that would be appropriate, perhaps not now, but through some process acceptable to the Court, in which the issues that fall to be determined in this case could be teased out in advance, as it were, so the respondent knows what it is responding to.

GUMMOW J:   Yes, yes I understand that.  Just pardon me a moment.

Yes, we are minded to urge upon Dr Mann the great necessity for obtaining legal counsel in this matter.

DR MANN:   I shall certainly do that.

GUMMOW J:   And when counsel has been retained, Dr Mann, the course we would propose is that the matter then, on application, be relisted before a single judge of the Court for directions as to the precise form of the notice of appeal and the issues to be debated, and the preparation of written submissions.  Do you understand that?

DR MANN:   Thank you, your Honour.  Yes, I understand that.

GUMMOW J:   Yes, thank you gentleman.  That seems suitable to you, does it, Mr Erskine?

MR ERSKINE:   Yes, thank you, your Honour.

GUMMOW J:   Yes, I am afraid we yet again have to adjourn to reconstitute.

AT 12.13 PM THE MATTER WAS CONCLUDED