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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Morgan v John Fairfax & Sons Limited [1991] HCATrans 51
Case
[1991] HCATrans 51
Decision Date
CaseChat Overview and Summary
In this matter before the High Court of Australia, the applicant, John Fairfax & Sons Limited, sought special leave to appeal. The dispute concerned the terms of an order for a new trial made by the Court of Appeal.
The primary legal issue before the High Court was whether special leave to appeal should be granted to allow the applicant to argue that the order for a new trial should have been qualified. Specifically, the applicant wished to contend that the new trial order should have preserved the benefit of the jury's verdict on issues other than qualified privilege, or at least some of those issues.
The High Court indicated that, generally, the decision of the Court of Appeal on the matters the applicant wished to agitate was not attended by sufficient doubt to warrant special leave. However, the Court acknowledged the applicant's desire to argue for a restricted new trial order, a point not previously considered by the Court of Appeal. Given that the Court of Appeal's order had been formally taken out, making it impractical to seek a variation by notice of motion, the High Court offered a consent order. This order would grant special leave to appeal and set aside the Court of Appeal's order to the extent necessary to allow the applicant to present their argument for a restricted new trial to the Court of Appeal. The respondent indicated a preference for this course of action.