Morgan v John Fairfax & Sons Limited

[1991] HCATrans 51

__m/,r	-;,i,~f!,ST1".U.!A, 1;l"
--~» ... ~'-'

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S107 of 1990

B e t w e e n -

KEVIN LEONARD MORGAN

Applicant

and

JOHN FAIRFAX & SONS LIMITED

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

Morgan 31 21/2/91

AT SYDNEY ON THURSDAY, 21 FEBRUARY 1991, AT 9.50 AM

(Continued from 15/2/91)

Copyright in the High Court of Australia

DEANE J: Yes, gentlemen, have you a consent order?

MR TOBIN: We have, Your Honour. Perhaps I could hand up a

draft minute of order, two copies for Your Honours

and one for the Court.

DEANE J:  Thank you, Mr Tobin. Mr Tobin, I do not think we

can make this order.

MR TOBIN:  Your Honour, we have been pondering that question

at the bar table.

DEANE J:  Can I tell you what the Court would have in mind?

MR TOBIN: Yes.

DEANE J:  The form of the order would be:

1. Special leave to appeal granted;

2. The appeal allowed, the order of the Court

of Appeal set aside to the extent necessary to
enable the question of the form of the order

for a new trial to be considered by that

court.

In other words, all that would be involved would be

that question.

MR TOBIN:  Yes. We have an alternative set of draft orders.

Perhaps if I can hand those. I have only got one

of those. That is, to grant special leave; to

grant the appeal limited to that question. We have

not put in what Your Honour said about setting

aside that part of the judgment.

DEANE J: Yes, that is acceptable to the Court.

MR TOBIN:  I think what we have there probably covers the

jurisdictional problem that we thought might arise.

DEANE J:  Mr Evatt, are you content with this form of order?

MR EVATT:  Yes.

DEANE J: Very well.

In this application, the Court was of the view

that, subje·ct to the qualification which we shall

mention, the decision of the Court of Appeal on the matters which the applicant wished to agitate on an

appeal to this Court was not attended by sufficient

doubt to warrant the grant of special leave to

appeal.

The qualification is that the applicant wishes

to argue that the order for a new trial should not

Morgan 32 21/2/91

have been an unqualified one but should have been

qualified so as to preserve for the applicant the

benefit of the jury's verdict in respect of all

issues in the case other than the issue of

qualified privilege or, at least, in respect of

some of those other issues. For its part, the

respondent maintains that any such restriction of

the order for a new trial would be undesirable and

impractical. The Court was informed that the

question whether any order for anew trial should be

a restricted one was not adverted to in argument in

the Court of Appeal. It is not discussed in the

judgments in that court. On balance, the members

of this Court considered that the applicant should,
in all the circumstances of this case, have the

opportunity of presenting his argument that the

order for a new trial should be a more restricted

one than the general order which was made.

Obviously, it is preferable that that argument

be entertained by the Court of Appeal rather than

by this Court. The Court was, however, informed

that the Court of Appeal's order had been formally

taken out and that it was consequently not

practicable to approach the Court of Appeal by way

of notice of motion. In these circumstances, the
Court indicated to counsel that, if the respondent

preferred that course to a limited grant of special

leave to appeal which might lead to this Court

determining the question, the Court was prepared to

make a consent order granting special leave to

appeal and setting aside the order of the Court of

Appeal to the extent necessary to enable the

applicant to present his argument to that court in
support of a restriction of the order for a new
trial. Senior counsel for the respondent, having

taken instructions, indicated to the Court that his

client would prefer that a consent order be made to

enable the question whether the order for a new

trial should be restricted to be dealt with by the

Court of Appeal.

The Court wishes to make it quite clear that

any comments made by the members of the Court in
the course of argument were made merely for the

purposes of discussion and should not be construed

as indicating any view about whether the

appropriate order is a general order for a new

trial or some more restricted order. That is a

question which will arise for the consideration of

the Court of Appeal when the applicant presents his

argument to it.

The Court makes formal orders in the form of

the short minutes of order handed up by counsel and

initialled by me.	I will read those orders.	They
are:

Morgan 33 21/2/91

By consent the Court orders that:

1. Special leave to appeal be granted from

those parts of the judgments of the Court of

Appeal of New South Wales in

Matter No. C.A. 40506 of 1989 given on

25 September 1990 which ordered a new trial on

all issues on the following ground:

That the Court of Appeal ordered a new

trial on all issues without giving proper

consideration to an order for a new trial

limited to the issue of qualified

privilege.

2.       The appeal is allowed.

3.      The matter is remitted to the Court of

Appeal of New South Wales for determination.

Mr Tobin, Mr Evatt, I think it would be preferable

if I added to 3, "for determination of the ground

of appeal mentioned in 1 above."

MR TOBIN:  Yes, thank you, Your Honour.

DEANE J:  4. The costs of this application be costs in

the cause.

MR TOBIN: If Your Honours please.

AT 9.56 AM THE MATTER WAS ADJOURNED SINE DIE

Morgan 21/2/91