McAdam v Robertson

[2000] HCATrans 118

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A5 of 1999

B e t w e e n -

LOUISE MARGARET McADAM

Applicant

and

RAYMOND ROBERTSON

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 24 MARCH 2000, AT 10.52 AM

Copyright in the High Court of Australia

MR T.A. GRAY, QC:   May it please the Court, I appear with my learned friend, MR A.L. TOKLEY, for the applicant. (instructed by Frank Webster & Associates)

MR S. WALSH, QC:   May it please the Court, I appear with my learned friend, MR B.J. KRUPKA, for the respondent. (instructed by Finlaysons)

GLEESON CJ:    Mr Gray.

KIRBY J:   You could not go back to the same Full Court now, with Justice Millhouse having retired.

MR GRAY:   No, we could not, your Honour.

KIRBY J:   So you are going to get a new Full Court anyway.

MR GRAY:   At least one member.

KIRBY J:   It will be a different Full Court.

MR GRAY:    Indeed.  Might I say, if the Court pleases, that we did seek to expedite this matter, and the matter could have been heard in October of last year before Justice Millhouse retired, but my learned friends were not available to travel to Sydney at that time and the matter could not be listed without their consent.  So, from my client’s perspective, we attempted to have this matter and did all we could to have it listed while Justice Millhouse was still a member of the court.

GLEESON CJ:   The nature of the jurisdiction that you are seeking to have exercised by the Full Court in South Australia is a jurisdiction to reopen an appeal where the order is unperfected, is that right?

MR GRAY:    Yes.

GLEESON CJ:   Well, ordinarily that jurisdiction would be exercised by the very court that made the order in the first place.

MR GRAY:    Well, that would be appropriate in certain cases.

GLEESON CJ:   It is not as though you can have some other three judges of the Supreme Court of South Australia sitting to review the decision of three other judges in the Supreme Court of South Australia.

MR GRAY:   Yes.  The difficulty rises because of the nature of the issue said to give rise to reopening.  What it is said is that the existing constituted court made serious errors of fact and ‑ ‑ ‑

GLEESON CJ:   The usual remedy for which is appeal, but not an appeal to three other judges of the same court.

MR GRAY:   No, if the Court pleases, and one of the difficulties of the remedy of an application for leave is, because it is founded in a serious misapprehension of fact, there is a real risk that this Court may not grant special leave.

GLEESON CJ:   Exactly, and that highlights the nature of your difficulty.  What you really want to do is appeal, but you doubt that you would get special leave to appeal to this Court and you most certainly cannot appeal to three other members of the South Australia Supreme Court.

MR GRAY:   Indeed, and the other avenue open is, and a recognised jurisdiction from this Court’s decision in Smith’s Case and Autodesk, is to apply to reopen.  The hurdle there is that we must make out, on the face of it, a significant error of fact or law.  Now that might come about, if your Honour pleases, by, for example, there being a recent decision that the court’s attention was not drawn to.

GLEESON CJ:   But this is, in substance, an attempted appeal to three other members of the South Australian Supreme Court under the guise of an application to reopen.

MR GRAY:   Well, it could be characterised as that, if the Court pleases, but, strictly speaking, it is an application to reopen, before the judgment is sealed, because it has been discerned that the previously constituted court has seriously misapprehended the facts.

KIRBY J:   Now, Mr Gray, there is a dispute about that in the written submissions.  There is a contention that some of these differences are trivial, but I want to say that in my time in the Court of Appeal, from time to time, before orders were perfected, applications were made to us to reopen and correct mistakes we had made – mistakes of law and mistakes of fact – and we quite frequently did it and when error was shown we even altered our orders and reversed the orders, and I would hope that every judge in Australia, shown a serious error of law or fact, would make that correction, if the orders were not perfected.  So why should we assume that that would not be done by the Full Court of South Australia?

MR GRAY:   The difficulty here, if I might say, if the Court pleases, is that we are not talking about a subtle nuance of fact; it is a question of, at night time, having a vehicle ‑ ‑ ‑

KIRBY J:   All the more reason why if you can show egregious mistakes of fact, that if they can be pointed out to the Court, embarrassing though it may be, that the judges who are shown and demonstrated to have made errors of fact will acknowledge them and will correct them and will then consider whether they lead to a different result.  Why would we assume that this Full Court, now, as it happens by chance, with another member, would not take that course, which is the course of legal propriety and honour.

MR GRAY:   The difficulty with that is the invidious position it puts that court in, because ‑ ‑ ‑

GLEESON CJ:   It is not invidious; John Maynard Caines was once accused of inconsistency, and he said to his accuser, when I am persuaded that I am wrong I change my mind, what do you do?

MR GRAY:   Well, if the Court pleases, the difficulty is that when the matter is reopened, the debate is:  were errors of fact made and assessing their materiality.  Now, on the issue of, was an error made, it amounts to this to saying to Caesar, reconsider your decision.

KIRBY J:   But Caesar here is not an imperial emperor; Caesar here is a judicial officer sworn to uphold the law and, in our system of law, I think it would be a sorry day if judges, when they are shown that they have made a mistake – under the pressure of work it is easy to do it – would not correct that mistake, and I would be sure that that would be done; I would hope it would be done.

MR GRAY:   If the Court pleases, at the point of principle, the difficulty is that those judges are being asked to sit in judgment on their own error and we would say that our whole system of jurisprudence is to avoid that happening.

KIRBY J:   I got a bit of a hint that what you were doing here was seeking to, because the orders had not been perfected, rebuff any suggestion in this Court on a special leave application, either in this matter or in a subsequent matter, that you had not exhausted your remedies.

MR GRAY:   There certainly is that aspect to it.

KIRBY J:   Well, you still have not exhausted your remedies.

MR GRAY:   Well, if the Court pleases, the application to reopen has been found to be fairly arguable and the issue is simply, which Full Court constituted ‑ ‑ ‑

KIRBY J:   The Chief Justice says it is not another Full Court because a) that is not the ordinary practice of an unperfected order correcting the orders that are said to have been in error, and b), it in effect is constituting the Full Court of South Australia as an appellate court from the Full Court of South Australia, and that is impermissible - probably impermissible under the Constitution – almost certainly impermissible under the Constitution.

MR GRAY:   The fact of the matter, it is not an appeal, is a reopening, but it happens that because of the nature of the error being suggested here, it does have all the same aspects or the same problems of an appeal.  For example, one might reopen for an entirely different reason that, for example, counsel had made a mistake of fact, …..explanation for it is…..material.  There would be no question then that the court could not reconsider the matter.  Or, alternatively, there was some new area of law that the court’s attention had not been drawn to; again, the court could reconsider the matter.  But here, the error goes right to the heart of the joint reasoning and the difficulty is that those judges be asked to sit in judgment on their own error and whether ‑ ‑ ‑

KIRBY J:   It happened to me from time to time, and I tell you again, reasons were corrected, orders were corrected, orders were reversed.  Why would that not happen?  That ought to happen if an error, a significant error, is shown, and it can happen, I mean, it is the nature of the pressure of business today for all courts.

MR GRAY:   If the Court pleases, the other aspect of the matter that, in a sense, adds to that is that one must look at it from the point of view of the party.  Now, if in fact the process goes ahead, the error that the plaintiff contends for is not acted on by the court on the reopening, then we would say there is an appearance of prejudgment to that person – not the fact of prejudgment, the appearance of it.

GLEESON CJ:   Yes, but you have got to bear in mind the nature of the jurisdiction that you are seeking to have exercised here; it is not an appeal.

MR GRAY:   No.

GLEESON CJ:   The jurisdiction you seek to have exercised is the jurisdiction of a court to reopen its own decision before the order has been perfected.

MR GRAY:   Perhaps I could deal with that point this way, that this, in a sense, is the very point raised in the Pinochet Case, where Lord Hoffmann was the subject of application of appearance and bias; that point was upheld, but the court said it was not appropriate for the other four members of the court, who were unaffected by any appearance of bias, to sit again, because the parties were entitled to present the matter to a panel that had not previously expressed a view on the matter.

KIRBY J:   But that is a very different case; that is a final appellate court and it was for reasons of bias by reason of the judge’s connection with an intervener and it is really, it seems to me, quite a different case from the position of an intermediate appellate court which can, if it is persuaded that the errors are so egregious as you say they are, and so obvious, that it should correct its own order, then it will do so and we are not concerned in the matter.

MR GRAY:   No, but the point from Pinochet’s Case was that the court thought it was inappropriate for a party to have to confront members of the court who had previously expressed an opinion on the issues and so, in that sense, it is directly applicable, on that point, that there ‑ ‑ ‑

KIRBY J:   There was no one else could correct an order of the House of Lords.

MR GRAY:   No.

KIRBY J:   This Court still remains to correct errors in the Full Court of South Australia if, at the end of the day, you are not able to persuade, in a case where there ought to have been a correction, that court to correct its orders.

MR GRAY:   Well, if the Court pleases, obviously the avenue, if leave is refused, of pursuing the matter before the - what will be a newly constituted court, because of Mr Justice Millhouse’s retirement, will proceed, but that, with respect, is not the point of principle that is put.  The point of principle is that, although this is a reopening it does, in fact, by reason of the particular suggested error in this case, involve those judges who are said to have made error having to sit in judgment on the question of their own error and we say that, in those circumstances, when another panel in that particular circumstance could be chosen, that the approach taken in Pinochet should be funded in this case.  May it please the Court.

GLEESON CJ:   We do not need to hear Mr Walsh.

In this matter the application for special leave to appeal is refused on the ground that the decision of the Supreme Court of South Australia is correct.

Can you resist an order for costs, Mr Gray?

MR GRAY:   The applicant must pay the respondent’s costs.

GLEESON CJ:   We will adjourn to reconstitute.

AT 11.04 AM THE MATTER WAS CONCLUDED