Moller v Trollope Silverwood & Beck Pty Ltd

[2004] HCATrans 530

[2004] HCATrans 530

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M61 of 2004

B e t w e e n -

BENT MOLLER

Applicant

and

TROLLOPE SILVERWOOD & BECK PTY LTD

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 3 DECEMBER 2004, AT 10.14 AM

Copyright in the High Court of Australia

MR B.W. COLLIS, QC:   May it please the Court, I appear with my learned friend, MR A.D.B. INGRAM, for the applicant.  (instructed by Holding Redlich)

MR J.H.L. FORREST, QC:   If the Court pleases, I appear with my learned friend, MR P.H. SOLOMON, for the respondent.  (instructed by Wisewoulds)

GLEESON CJ:   Yes, Mr Collis.

MR COLLIS:   Your Honour, our primary submission, and it is a simple submission, is that the Court of Appeal, having, we say properly, determined that the civil jury had not been instructed at all as to part of the relevant law with regard to assessment of damages by the trial judge, that it ought to have followed that it then ordered a new trial of the matter and that its decision in these circumstances not to order a new trial on the ground that, notwithstanding the non-direction it was satisfied pursuant to the Victorian relevant rule that no substantial wrong or miscarriage in the trial that occurred, was contrary to the law of Australia.  Your Honours, we submit that the relevant law as regards this matter is set out in a number of judgments of this Court, mainly the judgment of Justice Menzies and Justice Windeyer in General Motors-Holden’s Pty Ltd v Moularas, the judgment of the former Chief Justice, Sir Owen Dixon in Balanzeula v De Gail (1959) 101 CLR 226, the House of Lords in Bray v Ford [1896] AC 44 and there are also numerous judgments of various supreme courts, including the judgment of Mr Justice Cussen in Holford v Melbourne Tramway and Omnibus Co Ltd.

McHUGH J:   But is not the difference that at common law, once you showed error in terms of a misdirection, the onus was on the other party to show that there should not be an order for a new trial but that, under the modern judicature rules, you have to show both; you have to show that not only was there a misdirection but that there was a substantial wrong or miscarriage of justice. 

MR COLLIS:   What we would say, your Honour, with respect, is that the cases say that where there is misdirection of law of this nature that it inevitably follows that there ought to be a new trial.  That is what we say that the judgments, in effect, state.  Both Bray v Ford and General Motors-Holden’s v Moularas dealt with - or certainly Moularas Case dealt with a very similar rule to the one in question, and they were in respect of non-directions or misdirections as to damages and the courts in both cases said that it being a jury question, then it ought to have been a matter that the jury decide and decide when it was properly instructed to do so and it was not a matter for a court of appeal to embark upon some inquiry as to what the jury would or might not have done.  We say that is still ‑ ‑ ‑

McHUGH J:   But in this case the Court of Appeal referred to Moularas’s Case.  The most you can say is that they wrongly applied it, can you not?

MR COLLIS:   Yes, we say they clearly wrongly applied it.  Your Honour, we say that there are very sound reasons why this rule should not be used in these sorts of circumstances.  We say it is the right of citizens to have a jury decide certain matters and where they have that right it should be the jury which decides the matter and it is the duty of the court to properly instruct it.  If the court does not properly instruct it, we say it is not appropriate or proper for the court to inquire as to what a jury might or might not have done and that, therefore, it ought to follow clearly that there ought to be a new trial and that courts of appeal should not embark upon this exercise.  We say that that is clear from the judgments that I have referred to. 

We also say that this is a matter that is in the interests of justice generally throughout Australia because there are similar rules in New South Wales, Queensland, West Australia and Tasmania.  It would appear that South Australia is somewhat different but that the other courts have much the same rule.  So that we say that here the jury were not directed at all as to a specific head of damage and we say that in that situation a new trial ought to have been granted.  As I have said, I would only be repeating myself.

Your Honours, as far as the reasons given by the Court of Appeal, in effect all they did was to reiterate sections of the trial judge’s judgment which we say was imperfect, and they had found it to be imperfect, then referred to addresses of counsel which we say are not important - it is the judge that is important here - and we say that the reasons given were deficient.

If I could move on to the two other matters which we say are in the interests of justice as regards this particular case, true it is that in the outline of argument in I think the final paragraph, the respondent had said that no substantial miscarriage had been occasioned.  But the way in which the argument unfolded is that argument was not sought or tendered on this particular point and we say that the court, having determined that it would decide it on this particular rule, ought to have asked the parties for submissions on that matter and we say that if submissions had been made, a different result may or would have ensued.  In that regard we rely generally on Stead v State Government Insurance Commission (1986) 161 CLR 141.

The other matter which is relevant to this particular case is that it is clear that if one alleges contributory negligence you must prove it.  In this case a ladder was utilised to do a particular job.  It was put by the applicant

plaintiff that he did it one way.  It was then put to him that he could do it in one of two other ways.  One he said he had discounted but the other one was dependent on whether the state of the footings of the ladder were in good repair and there was no evidence whatsoever whether they were or they were not, but the trial judge left it to the jury to say this was an appropriate and proper alternative for them to consider, and the Court of Appeal agreed with that.  We say that really that is reversing the onus of proof in this case because there was no evidence that that was a method which could have been adopted.  They are simply our reasons why we say that special leave ought to be granted.

GLEESON CJ:   Thank you.  We do not need to hear you, Mr Forrest.

The Court is of the view that this matter does not raise an issue suitable for a grant of special leave to appeal and we are not persuaded that the interests of justice require it.  The application is dismissed with costs.

AT 10.24 AM THE MATTER WAS CONCLUDED