Morris & Anor v Wardley Australia Property Management Limited

[1993] HCATrans 216

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S7 of 1993

B e t w e e n -

THEODORE CONSTANTINE MORRIS

and DIANE RACHEL MORRIS

Applicants

and

WARDLEY AUSTRALIA PROPERTY

MANAGEMENT LIMITED

Respondent

Application for special leave

to appeal

MASON CJ
GAUDRON J

McHUGH J

Morris 1 9/8/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 9 AUGUST 1993, AT 11.31 AM

Copyright in the High Court of Australia

MR T.D. TZOVARAS:  May it please Your Honours, I appear on

behalf of the applicants. (instructed by Tzovaras &

Company)

MR S.D. EPSTEIN:  May it please the Court, I appear for the

respondent. (instructed by Allen Allen & Hemsley)

MR TZOVARAS:  Your Honours, first of all I would like to

apologize in respect of a couple of matters:

firstly, my inability to advise the Court of the

name of counsel that would be appearing in

accordance with the practice direction which, in

fact, resulted in the necessity of my appearance.

Secondly, Your Honours, my failure in providing

Your Honours with a list of authorities, which is

the preferred course. Instead, I have a list of

authorities now, and the cases which I will be

seeking to rely upon, copies of those cases,

conveniently arranged in three separate volumes.

MASON CJ:  You might hand those in, but I hope, Mr Tzovaras,

you will not find it necessary to refer to all the

cases that appear in those folders. It is a

special leave application and, generally, it is

unnecessary to refer to cases in any detail or in

any number.

MR TSOVARAS:  Next, Your Honours, again an apology. The

application for special leave, well at least the

book, omits from containing documents which are,

from the view of the weekend, should have been

included.	I seek leave to incorporate those
documents.	They would be useful by way of
reference, more than anything else.	The documents

in question that are omitted are the amended

summons, the defences by each of the applicants,

and three affidavits which were read during the

adjournment application.

I do not know whether Mr Epstein is objecting

to that course but if leave is given then I have

got those in manilla folders conveniently set out.

MR EPSTEIN:	I do object to that course, Your Honour.
MASON CJ:	What do you say in support of this, Mr Tsovaras?
MR TSOVARAS:	Your Honour, there is, in my submission, no

prejudice to the respondent. These are documents

which are well known.

MASON CJ: Yes, but what do you want to refer to the

documents for?

MR TSOVARAS:  In order to better appreciate what is said in

the judgments, by the judgment of the trial judge

Morris 2 9/8/93

and the Court of Appeal, it is necessary to refer

to the amended summons.

MASON CJ:  I suggest, Mr Tsovaras, that you hand the

documents in, and to the extent necessary, if at

all, we will look at them during the course of the

presentation of your argument. After all, the

documents are not novel documents, they are well

known to Mr Epstein.

MR TSOVARAS:  Thank you, Your Honour. Your Honours,

although the affidavit supporting the application

sets out some submissions, I have got an outline of

submissions of the applicants. The outline is in

two parts. Firstly, it deals with the question of

public importance and, secondly, it deals with the

substantive matters.

Essentially, so far as the public importance

aspect is concerned, there are two points. the law, and secondly, an aspect of natural - - -

GAUDRON J: It seemed to me, though, that it is precisely an

area where there can be no uniformity. Every case

and every adjournment application is peculiar to

itself.

MR TSOVARAS:  Indeed, with respect, Your Honour, that is

certainly the case that it is a broad principle

that is determined or applied, depending on the

circumstances of each case.

MASON CJ: But the principles are not in doubt, are they,

Mr Tsovaras, they are well known?

MR TSOVARAS:	Yes, Your Honour.
MASON CJ:	You do not really require this Court to enunciate

principles governing the way in which an

application for an adjournment ought to be dealt

with.

MR TSOVARAS:  In the manner in which the principles, or the

principle is applied, there is apparent a

divergence, or there appears to be a difference

which, allowing for the different circumstances
would, in my respectful submission, make it

appropriate for this Court to set out, in broad

terms, the approach that ought to be taken by the

trial judges when faced with an application for an

adjournment without, in any way, impairing any

aspect or the quality of discretion.

Your Honours, the other point is that often

these types of matters are captioned by the

expression of "practice and procedure" and, in my

Morris 9/8/93

respectful submission, frequently an application

for an adjournment touches upon one of the

fundamental principles of natural justice, namely,

that involving the right to be heard or to be heard

fully. It is in those two areas that, in my

respectful submission, there is a need, or at least

a desirability, for a broad instructive statement

or direction to be given by this Court.

If I could take Your Honours to paragraph 5 of

the submissions, and I set out there two examples
which give rise - because of the radically

different circumstances, make the principles

difficult to be applied simply by reference to a

broad statement such as, "The discretion must be

exercised judicially".

The second example there is one that, in fact, arises out of the judgments of President Kirby and

Justice Meagher, whose views differ vastly in

relation to the treatment of an adjournment

application in the Raybos matter. The language

used by Their Honours suggests different types of

principles that apply.

Your Honours, as I indicate at paragraph 8 of the submissions, the preferable formulation, in my

respectful submission, of the relevant principles
would be to align those principles with the
principles governing the question of denial of
natural justice. There is a reference made to

that, or a link, in the case of Hempel v Moore, and

respectfully, I then set out, in paragraph 9, the
kind of approach that ought to be taken, but

principally by dealing with an adjournment

application, where appropriate, as one involving

the right to be heard.

Now, in this case that was precisely what was

in issue. Mr and Mrs Morris, in my respectful

submission, were denied the right to present their

defences in full.

heard in respect of the defences fully. They were denied the right to be

GAUDRON J: You have got some difficulty about that in so

far as the Court of Appeal suggests that no other

defence from Mr Morris has ever been made known to

anyone. It is not an academic exercise, otherwise

anyone could say, "Well, I have got a further

defence I want to file".

MR TZOVARAS:  Your Honour, I must confess that I have had

difficulties understanding that statement made by

His Honour. In the application books there was, amongst other documents, an affidavit which was sworn by myself, on 2 March 1992, which was one of

the three affidavits in support of the application

Morris 9/8/93

for an adjournment, and which is included in the

documents that I have just handed up.

My affidavit annexes a document entitled

"Draft Defence and Cross Claims''. It comes after

the reply.

GAUDRON J:  The defences then were really cross claims under

the Contracts Review Act, were they, and the Fair

Trading Act?

MR TSOVARAS: Yes, Your Honour, in the form of - - -

GAUDRON J: Notwithstanding that there had been some

settlement in the Federal Court under the Trade

Practices Act?

MR TSOVARAS:  Yes indeed, Your Honour.

GAUDRON J: And which matters would have, of course, been

subsumed or could have been attached to the Trade

Practices Act litigation, could easily have been

raised in them?

MR TSOVARAS:  They might have been able to be raised. There

was, and that is not before Your Honours - - -

GAUDRON J: But you have got very fundamental difficulties,

have you not, in view of the Federal Court

proceedings in the settlement, trying to raise

defences of that nature at a subsequent time?

MR TSOVARAS:  Indeed, it would have been a difficulty which

was raised by the reply, filed by the respondent

here, but to which the applicants were denied the

opportunity of filing a defence, or addressing that

reply in some other way. Your Honours will recall

from the judgments that that reply was filed some

five days prior to the hearing, prior to the trail.

GAUDRON J:  Do we have that reply?

MR TSOVARAS:  I am sorry, you should have it, Your Honour.

It comes after the defences, so we have an amended summons - it is in the bundle of documents I handed

up - followed by the defence of the first

defendant, the defence of the second defendant and
then you have the reply. Sorry, it is not

paginated, it is about - - -

GAUDRON J: It is before your affidavit?

MR TSOVARAS:  Yes, Your Honour.

GAUDRON J: What happened to those Federal Court

proceedings, were they determined in some form or

other?

Morris 9/8/93

MR TSOVARAS:  They were not, Your Honour. I was not

involved in that, but from the knowledge that I

have acquired from the papers that I have read,

they were settled prior to the trial and the terms

of settlement were embodied in that document that

is pleaded in the reply. It is quite a substantial

deed which was in evidence and was the subject of

discussion in the course of the hearing before

His Honour Mr Justice Rogers.

In my respectful submission, Your Honours, the issue raised by the deed of settlement is something that, although one may well expect that it would

have put the applicants in some difficulty, it is

something that was not properly ventilated before

His Honour Mr Justice Rogers at the trial. All

that was the result of His Honour's refusal for the

adjournment application.

The prejudice, or the injustice, in my

submission, that flowed from that was - - -

GAUDRON J:  You were well out of time to file these

defences, I take it?

MR TSOVARAS:	Yes, Your Honour.
GAUDRON J:	So you needed an exercise of discretion in that

regard, as well as an adjournment?

MR TSOVARAS: Indeed, Your Honour, but similarly, although

one wrong does not justify another, certainly the

reply was well out of time and in breach of

His Honour's directions. The reply, as I said, was

filed some five days prior to the trail. Bearing in mind the chronology that is to some extent set

out in my written submission, at the beginning of

part B which, broadly speaking, is as follows.	The
proceedings were commenced - - -

GAUDRON J: Could I take you back to the defence that was

first filed? Certainly the Contracts Review Act

was pleaded in the defences first filed, as appears

at page 5?

MR TSOVARAS:  Yes, it was, in some form.

GAUDRON J: Yes, and the Fair Trading Act was not. Is that

right?

MR TSOVARAS: It was not, yes, Your Honour, not that I

am -

GAUDRON J: But the Fair Trading Act and the Contracts

Review Act cross claims traverse much the same

issue as was involved in the Federal Court

Morris 6 9/8/93

proceedings under the Trade Practices Act. Is that

right?

MR TSOVARAS:  Your Honour, I am not in a position to say so.

GAUDRON J: Prima facie, that is what it looks like.

Certainly, that is what one would expect and it is

hard to imagine that they would involve any other,

any substantially different aspect from that

involved in the Trade Practices Act.

MR TSOVARAS:  Indeed, Your Honour, that may well be the

case, probably that is the case. In my respectful

submission, though, as I said respectfully, it is

not to the point. It is not appropriate now or

even at the time when the adjournment application

was contemplated, or dealt with, to speculate. It
would have had to be a matter of evidence which was

raised by virtue of the reply that was filed some

five days prior to the - - -

GAUDRON J: Well, of course, it is necessary to speculate at

the time when the adjournment was granted. I mean,

if it appears totally fanciful, you have got to

speculate one way or the way whether there might be

some substance in it or not, if you do not know.

But what was held against you at first instance was

that the substance on the matter you wished to

raise was, in fact, raised at the defence, and that

there was no significant departure in the new

defence from what was raised in the first defence.

And there was evidence from your clients at first

instance.

MR TSOVARAS:  Indeed, that was certainly what His Honour

held but, with respect to him, that was not correct

in that - - -

GAUDRON J: Well, you have just told me you do not know.

MR TSOVARAS:  On the next point that you raise, Your Honour,

if I understood you correctly, namely whether the

defence, in substance, covered the matters that

were so to be covered more amply in the draft

amended defence, and those matters were not.

GAUDRON J: Would one not certainly be entitled to have

regard to the fact that there had been proceedings under the Trade Practices Act alleging some unfair

dealing of some sort which had been settled?

MR TSOVARAS:  Yes.

GAUDRON J: And that now, again, in the heel of the hunt,

there was an attempt to raise, again, some claim of

unfair dealing?

Morris	7	9/8/93
MR TSOVARAS:	Yes, indeed.	Now the way that was dealt with,

and I am sorry that there is no material before

Your Honours - Mr Sutherland, who appeared on

behalf of the applicants, the defendants in those proceedings, indicated, and I think it is covered

to some extent in the affidavits of

Mr and Mrs Morris, that there was some undue

pressure that was imposed upon Mr Morris which

resulted into the settlement. Now, putting to one

side the merits of that - or the credibility, I

should say - that would have been the subject of

evidence being given in proper form and tested in

the usual manner. Perhaps if I could take

Your Honours to the relevant parts of the

affidavit.

MASON CJ: That is at page 25, is it not?

MR TZOVARAS:  Yes, Your Honour, it is. I should also

indicate to Your Honours that there was no

cross-examination at all in relation to the

evidence that was given in the form of affidavits

in the adjournment application hearing so that this

evidence, as such, was not challenged.

So, in effect, the evidence or the

explanation, the defence that was given in relation

to that was yet another form of unjust contract and

therefore the applicants would have had recall to

the Contracts Review Act in relation to the deed of

settlement itself.

MASON CJ: But what are the consequences of all this? All

that the deponent does is depose to the existence

of a conversation in these terms at a time when the

deponent had legal advice.

MR TZOVARAS:  Indeed, Your Honour.

MASON CJ: Well, you can hardly think that the trial judge

would do otherwise than disregard this because

effect. there is no evidence that it had any operative

MR TZOVARAS:  Your Honour, the application for an

adjournment itself undoubtedly will take into

account, amongst other things, the strength or

weakness of the case of the applicant of the

adjournment application. But that is one of the

factors and, in my respectful submission, one is

not to run a mini trial or a summary judgment

application, or hearing, I should say, and come to

conclusions without affording the opportunity to

the litigants, in this case, the defendants, to put

their evidence in the usual - in the proper form

for it to be tested in the usual manner.

Morris 9/8/93

So, I suppose, what I am saying in different

words is that His Honour, with respect to him, was

premature in the views that he held. His Honour

afforded the opportunity to the applicants to go

away, prepare some affidavits and show - outline,

basically, in the affidavits what the defences

would be in support of their application for an

adjournment. They did that in haste. I recall the

day in question. I was intimately involved in the

exercise: we went away; took instructions separately, my partner and myself, dealing

separately with Mr and Mrs Morris, and within the

time that we had available we extracted

instructions and put those in the form of

affidavits and then, of course, filed and handed

them up to His Honour.

Now, that must not, with respect to

His Honour, could not have been taken as being the whole - the entirety of the evidence that would

have come from these two parties. That was a

synopsis of their evidence for the purpose and, in

the circumstances, rather, with the limitations,

the constraints, that the defendants were faced

with. That is the difficulty.

So, the central submission that I am making,

with respect, is that the applicants were denied

the opportunity to be heard fully and so that

His Honour prejudged, with respect to him, the

situation because a refusal of an adjournment

application in that case could be not otherwise but

fatal to the case of the defendants. Their defence

was, in my view, grossly inadequate. In
His Honour's view, it was obscure, it was unclear.

It needed, at the very least, tidying up and what

we seek to do in our application is to get leave to

file - to do precisely that, to flesh out in

proper form and to the fullest extent the defence

of the applicants.

McHUGH J: But these are matters you could take up in the

Court of Appeal. There is nothing special about

this case. It really is getting past - the time in

coming, in my view, when this Court has got to say

something about the applications for special leave being made in cases like this. These cases should never be brought up here. It is a matter that

should stop in the Court of Appeal. It is an

application for an adjournment, refused; goes up to

the Court of Appeal and it is dismissed; and an

application is brought up to this Court. Well,

there is nothing special about the case. The mere

fact that there is some error is not a ground for

this Court granting special leave.

Morris 9 9/8/93

If we granted leave every time that there

appeared to be an arguable error in the courts

below, we would have to extend the numbers of

members of this Court fiftyfold.

MR TZOVARAS:	Yes.
MASON CJ:	I should say, for my part, Mr Tzovaras, I am not

persuaded that there was any error in this case.

The more I look at it the more I think that the course taken by the trial judge was entirely

justified. I really think that this application is

doing no more than trifling with the Court.

MR TZOVARAS: Well, in view of your comments, Your Honours,

I think I have covered my submissions. Those are my submissions.

MASON CJ: Yes.

McHUGH J:	Thank you, Mr Tzovaras.
MASON CJ:	The Court need not trouble you, Mr Epstein.

The Court is not persuaded that there was any

error on the part of the trial judge in refusing

the application for an adjournment. The

application for special leave is therefore refused.

MR TZOVARAS:	May it please the Court.
MR EPSTEIN:	We seek an order for costs, Your Honour.

MASON CJ:  Yes. You do not resist an order for costs,

Mr Tzovaras?

MR TZOVARAS:  I have got nothing to say about that,

Your Honour.

MASON CJ:  No. The application is refused with costs.

AT 12.02 PM THE MATTER WAS ADJOURNED SINE DIE

Morris 10 9/8/93