Mulvena v Government Insurance Office of New South Wales

[1992] HCATrans 290

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S79 of 1992

B e t w e e n -

CHRISTOPHER RAY MULVENA

Applicant

and

GOVERNMENT INSURANCE OFFICE OF

NEW SOUTH WALES

Respondent

Application for special leave

to appeal

DEANE J
DAWSON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 OCTOBER 1992, AT 12.19 PM

Copyright in the High Court of Australia

Mulvena 1 2/10/92

MR T.E.F. HUGHES, QC:  May it please the Court, in this

application I appear with my learned friend,

MR J.P. GORMLY, for the applicant. (instructed by

Turner Freeman)

MR C.T. BARRY:  May it please the Court, I appear with my

learned friend, MR M. BRABAZON, for the respondent.

(instructed by the Solicitor for the Government

Insurance Office of New South Wales)

DEANE J: Yes, Mr Hughes?

MR HUGHES:  Your Honours, in an endeavour to shorten the

time to be taken I have reduced - - -

DEANE J: For once, Mr Hughes, we have as much time as you

could possibly need.

DAWSON J: That does not mean, of course - - -

MR HUGHES:  I shall not take advantage of the opportunity

or, at least, I shall try not to, Your Honours.

DEANE J:  I might venture that the reason is that some

matters fell out of the list at the stage where it

was too late to replace them.

MR HUGHES:  Yes. Your Honours, we have endeavoured to

outline our submissions in the written document.

There are four copies here. May I hand up to

Your Honours copies of the relevant statutory

provisions and the two cases to which we will need

to make a brief reference?

Your Honours, we have endeavoured to distil

the question which we submit arises and warrants

the grant of special leave in paragraphs.

DEANE J: Yes, Mr Hughes?

MR HUGHES:  Your Honour, there are two matters to which I

should first of all refer. In the Court of Appeal,

in which I did not appear in this case, the contest

between the two sides was, on the one hand, that

is, our side, that there should be a new trial

generally; on the other hand, the submission was

that the Court of Appeal should itself determine

the issue of liability on the transcript, and the

court declined to take either course and, as

Your Honour will have seen, took a course which

really required the trial judge to repeat

pronouncement of his judgment with the

contemporaneous repetition of reasons. It was

really a course which, with great respect to the

Court of Appeal, involved a somewhat hollow

repetition in correct order temporarily of what had

Mulvena 2 2/10/92

been done discontinuously and without lawful

authority by the trial judge in the first place.

The other matter to which I should refer, and

I do this with my learned friend's authority, he

had the opportunity of seeing my outline before I
handed it up to Your Honours and I am able to say

that save as to the last matter referred to, the

suggested conflict between the majority decision in

this case and the unanimous decision of the Court

of Appeal in Palmer v Clarke, he does not, he has

been good enough to tell me, disagree with the

formulation by us of the essence of the principles.

So, there is no disagreement as to the basic

principles as we have sought to distil them. There

is a question, however, as to whether the majority

in this case put themselves, as it were, in

conflict with the previous decision of the Court of

Appeal in Palmer v Clarke.

Now, it may be said, Your Honours, that the

essence of our position is that when Judge Viney

pronounced his reasons approximately two weeks

after he had entered the verdict he was, in effect,

functus officio, his authority had been spent once

he had inappropriately pronounced his verdict

without reasons on the earlier occasion.

DAWSON J: But why cannot the Court of Appeal restore his

function by quashing the verdict?

MR HUGHES:  If they quashed the verdict then, in my

submission, the only proper course in the exercise

of the judicial discretion was to grant a new

trial.

DAWSON J:	Why, if they restored his function?
MR HUGHES:	Because he had no function when he gave his

reasons and I suppose the essence of our position

is that it is not appropriate or legally allowable

in purporting to restore the function, as

Your Honour puts it, to take into account reasons

that were given, in effect, coram non judice, his

authority was spent.

DAWSON J:  But that does not answer the question. Why

cannot the Court of Appeal restore his authority?

MR HUGHES:  Because it cannot do so on the basis of giving

weight to reasons that were not, in the events that

happened, judicial reasons.

DAWSON J: Well, it does not make him give the same reasons,

as a matter, he can give whatever reasons he likes

but he probably will give the same reasons if he is

of the same view.

Mulvena 3 2/10/92

MR HUGHES: It is a little difficult - - -

DAWSON J:  I am just testing, Mr Hughes. Why does it have

to order a new trial?

MR HUGHES:	Because the justice of the case requires it in order to uphold the principles which we have
endeavoured to distil in the submission. The Court
of Appeal should not have countenanced or provided for a situation in which Their Honours were, in
effect, approbating - - -

DAWSON J: It has not countenanced it. It has quashed a

verdict and sent it back to the trial judge to do

it properly.

MR HUGHES:  Yes, but in terms of what is no more than a

formality. It is nothing more than a formality. I

cannot express the basic point we try to make

better, with respect, than it was expressed by

Mr Justice Sheller at page 55, I think it is, in

the last few lines of His Honour's judgment where

His Honour said:

I do not think this Court, on appeal, can on

the basis of reasons, which the trial judge

had no authority to publish, dismiss the

appeal on the merits.

It is using as the tool for the order that the court made something that had no legal force

whatsoever. It is no different in principle -

DAWSON J: But it was not on the basis of the reasons of the

trial judge that	the appeal was dismissed on its
merits, was it?	Is not the appeal by way of
rehearing?

MR HUGHES:  Yes, but Their Honours declined to rehear on the

transcript because Their Honours took the view that

a question of credit was involved.

DAWSON J: Yes, you are right. As it were, a technical

dismissal of the appeal on the merits?

MR HUGHES:  Yes. That is a difficulty in the case. As I

said, the court below faced up to the difficulty

and although I cannot cite a passage in the

application book, I think it is agreed on both

sides by those who were there that the court
declined to entertain the merits on the transcript

because of the difficulty of evaluating credit.

DEANE J: But assume that the appeal had come before the

Court of Appeal before the trial judge gave his reasons, would not the question then arise for the

Court of Appeal whether the appropriate course was

Mulvena 4 2/10/92

to uphold the appeal, quash the orders and order a
new trial or whether the appropriate course would

be to quash the orders and remit it to the trial

judge so that he could give his reasons?

MR HUGHES:  With respect, no, because on one view of the law

it could be said that the judgment given, save as a

vehicle for an appeal, was a nullity. Once it had

been given, be it it was a nullity, the trial

judge's authority was spent.

DAWSON J: But that comes back to what I was putting to you

earlier.

MR HUGHES:	I know it does, Your Honour.
DAWSON J:	An appeal court can always restore a trial

judge's authority; send it back to him to do things

which he did not do properly, reconsider in

accordance with reasons and so on.

MR HUGHES:  This order that was made, the sort of middle -

what was seen as the appropriate middle ground by

the majority, was really an order which does not do

great service, in our respectful submission, to the

very important interests involved in the principle

that judgment must be given and reasons with it

contemporaneously.

DEANE J:	How high does this principle apply, Mr Hughes?
MR HUGHES:	The thought had not escaped me, Your Honour.

That is territory which I thought it might be

impertinent to trespass into.

DAWSON J:  Yes. Going back to the point that you dealt

with, this really was not a dismissal of the appeal

on the merits because it would go back, the judge

would give his verdict and reasons again, and then

there would be an appeal on the merits in those

circumstances. It really was the correction of a

procedural situation.

MR HUGHES:  I appreciate what Your Honour is putting.

DAWSON J: There would be no res judicata on that point.

MR HUGHES:	No, but it would be inappropriate to send the matter back to the same judge with a direction to
him simply to regurgitate what he had already said.

DAWSON J:  Why would it? If he was wrong, there would be an

appeal but it is merely correcting what might be an

important procedural deficiency but nevertheless a

procedural deficiency.

Mulvena 2/10/92

MR HUGHES: Well, of course, the court here in a way - and I

emphasize "in a way" - purported to deal with the

matter on the merits because in the way the appeal

was conducted, the preliminary point was taken

first and then my learned junior was invited to

argue the matter.

DAWSON J:  The way they dealt with it, they really could not

have because they could not preclude an appeal, if

the course that they have suggested is followed - I

presume it has been followed, has it?

MR HUGHES:  Yes. It might seem an extreme analogy but it

may be appropriate to test it: there was no more

legal efficacy in what Judge Viney did when he gave

his reasons two weeks after he pronounced his

verdict or judgment than there would have been had

he pronounced his reasons at an informal social

gathering.

McHUGH J: Well, if on the following Saturday down at the

golf club, he told people why he dismissed the

action, you would say that would have provided the

Court of Appeal with no ground for not ordering it?

MR HUGHES:	No, and the fact that he erroneously formulated reasons after his authority was spent is no
different in principle.
McHUGH J:	Did the judge have absolute immunity when he gave

these reasons, Mr Hughes?

MR HUGHES:  He could not have been - well, it is an

interesting question.	I remember hearing a special
leave application before mine last week.	He was
not acting coram judice so there would be a question.

Your Honours, it is a short point but we would

submit, with respect, it is a significant point.

There is no doubt, in our submission, that there is	a conflict between the majority in this case in the
Court of Appeal and the unanimous Court of Appeal
in Palmer v Clarke. In Palmer v Clarke, 19 NSWLR,
if I can just give Your Honours a very quick
reference to a passage in the judgment of
Mr Justice Priestley, at page 174A to C, where
His Honour said at the top of the page:

Had the reasons eventually forwarded by

Moore DCJ been given before the judgment it

would have been very difficult for this Court

to overturn the judgment that he arrived at

both on the plaintiffs' claim and the

defendant's cross-claim. I say this having

heard the argument to the contrary by Mr Rares

for the appellants yesterday. I refrain from

Mulvena 6 2/10/92

speaking more positively only because Mr Rares

did not complete that argument as the Court

decided the appeal must be resolved in his

client's favour on the ground that has been

dealt with in detail by the learned President.

So, in that paragraph His Honour was dealing with

the merits of the appeal and was saying that he was

unimpressed with the merits. His Honour proceeded:

Stated shortly, my own reasons for

thinking that that ground must succeed are

that upon the materials, both statutory and

common law, that have been already stated by

the learned President the conclusions seem to

me to be required that (1) after judgment on

4 December 1987, Moore DCJ was functus

officio; (2) the only reasons for the judgment
which was given and enforceable on 4 December
1987 were those given by the judge on that day

and possibly (it does not seem to be necessary

to decide this point) the day before; and (3)

those reasons were so inadequate as to fall

within the rule stated in the line of cases

beginning in this Court with Pettitt v

Dunkley.

The President in Palmer v Clarke was somewhat

more tentative but nevertheless inclined, as

His Honour Mr Justice Sheller said, to the view

that the judge was functus officio.

DAWSON J:  It comes back in my mind to the point I put to

you in the beginning, he was - well, we can assume

he was, but when you get to the stage of an appeal, his function can be restored. Maybe you would say that it should not be but -

MR HUGHES:  In that case, if that is the correct view - and

I assume for the purposes of putting the next

proposition, it is - the Court of Appeal erred in

the exercise of their discretion because in

deciding to take the course actually taken as

opposed to ordering a new trial generally,

Their Honours had access to and relied upon

material that it was not open to them to treat in

that way because that material consisted of the

reasons which were not, in law, reasons at all.

Now, I doubt if there is much more that I can

usefully add without repeating myself to

Your Honours. We submit that the decision below is

attended by sufficient doubt, that it is on a

significant point and warrants therefore the grant

of special leave.

DEANE J: Yes, Mr Barry.

Mulvena 7 2/10/92

MR BARRY:  Your Honours, in the respondent's submission

there are two stages involved in the process of

what occurred in the Court of Appeal. The first is

determining whether or not there was an error and,

in the respondent's submission, it is conceded that

there was an error, namely, the Palmer v Clarke

error which was a procedural error.

The second stage that the Court of Appeal had

to consider was what then to do with the matter.

That involves, in the respondent's submission, a

question of the construction of section 75A(l0) of

the Supreme Court Act. Could I hand Your Honours

four copies of that?

DEANE J: In Palmer v Clarke, the trial judge had given

reasons? I am correct, am I not: he had given

reasons?

MR BARRY:  That is right.

DEANE J: And then he subsequently sought to revise them?

MR BARRY:	That is so.
DEANE J:	Now, do you accept that that has relevance to a

situation where the trial judge has, in effect,

made an order but indicated that he will give his

reasons subsequently?

MR BARRY:  Yes, because the same point arises, namely, that

the reasons that were given by Judge Moore in

Palmer v Clarke were defective reasons and

therefore not reasons at all. In this case, what

was done by Judge Viney on 23 November 1990 was to

give no reasons so therefore that was a judgment

which was affected by procedural error and liable

to be set aside.

DEANE J: What, he did not indicate that he would give his

reasons subsequently?

MR BARRY:  He did. He said he would give his reasons

but -

DEANE J: That was the distinction I was drawing. I mean,

if a trial judge makes an order and gives reasons,

defective or otherwise, he has purported to do what

he is obliged to do to terminate the case and is

clearly functus, subject, of course, to possible

jurisdiction to correct errors under slip rules and

whatever you have. But is not the position quite

different if a trial judge makes an order and says,

"I will deliver my reasons for that subsequently"?

It may be that the result is the same but it is not evident to me that a decision on the first case has

Mulvena 2/10/92

much to do with what is right or wrong in the

second case.

MR BARRY:  With respect, I agree with what Your Honour puts

because in the second case the subsequent reasons

may be available but only for a limited purpose, the limited purpose being in what way should the

Court of Appeal then exercise its discretion as to

what to do with the matter once it has found that

there is a procedural error, be it of the smaller

or greater variety.

DEANE J:  No, in the second case the judge has purported to

extend the process of making judgment over two

stages. I mean, what if, for example, the judge in

this case had said, "In this ~ase I order that the

action be dismissed. I will now proceed to give my

reasons for that order." Would you accept that the

moment he said, "In this case I order that the

action be dismissed" he was functus?

MR BARRY:  No, Your Honour.

DEANE J: Well then, what is the difference?

MR BARRY:	it is simply a question of whether or not Palmer v Clarke is right when it says that the word "then" under the relevant provisions of the District Court Rules means at or shortly after the time when he
has pronounced judgment.

DEANE J:  I see. What you are accepting is that Palmer v

Clarke turns on the wording of the particular rule

rather than on questions of general principle?

MR BARRY: That is right.

DEANE J: Yes, I understand that.

MR BARRY:  The second stage of the process in the Court of

Appeal requires two things: firstly, a

consideration of whether or not they have power to do what they did, that is, send the matter back to the judge for him to pronounce his reasons at the

same time as he delivers judgment and, secondly, if

they do, it involving a discretion, whether or not
there was any miscarriage in the exercise of that

discretion by the Court of Appeal.

DAWSON J:	Were you going to hand up - - -
MR BARRY:	Yes, Your Honours.  Can I hand up four copies.

They are photocopies from the Supreme Court

Practice.

MR HUGHES:  I think Your Honours will find 75A in our

documents.

Mulvena 9 2/10/92

MR BARRY:  If I could take Your Honours to 75A(l0).

Relevantly to this application it reads:

The Court may make ..... any direction ..... which

the nature of the case requires.

What the majority did in the Court of Appeal was

come to the view that there was a Palmer v Clarke

procedural error and then they considered

section 75A(l0). In Palmer v Clarke itself it is

not clear whether section 75A(l0) was in fact in

force at that time. Your Honours will note from

the photocopy that I have just handed up that
subsection (10) was inserted by an Act in 1989, and

Palmer v Clarke was itself decided in 1989. But in

Palmer v Clarke it is clear from pages 171 to 173

of the judgment of the President and from page 174D

of the judgment of Mr Justice Priestley, that no

submission was put in Palmer v Clarke that the

matter could be dealt with in any other way than a

retrial. Mr Justice Priestley's judgment is

perhaps clearer on that point. At page 174D,

His Honour says:

The ordering of the new trial must be a

matter of great concern to the respondents who

could be excused for saying: "If the law says

that, the law is an ass." This feeling was

transmitted to the Court by their counsel,

although in more appropriate language. The

Court listened attentively to Mr Bruce QC, for

the respondents, to see whether the result

that has been reached could be avoided but,

despite his thoughtful and earnest efforts, in

the end it seemed to me there must be a new

trial.

In the present application, when the same

question arose, it was dealt with by

Mr Justice Mahoney at page 43 of the application

book where Your Honours will see he referred to

section 75A(l0) and he said at line 7:

In my opinion, there is no reason of

substance why the court may not make an order

or give a direction that the proceeding be

returned to the District Court so that the

judge may make the order and give the reasons

for it together in the manner in which they

should have been given. Such would be within

s 7 SA( 10) .

Mr Justice Clarke who was in the majority, at

page 49, line 10, agreed that there was an error of

the Palmer v Clarke variety, and then at line 15

said:

Mulvena 10 2/10/92

But the grant of a new trial is a

discretionary remedy and because that was the

order made in Palmer does not mean that in

every case in which a District Court Judge

delivers reasons some time after giving

judgment this court must, on appeal, send the

case back for a new trial.

The conclusion that legal error has

affected a judgment under appeal leads

inevitably to another enquiry - What order

should be made? In many cases it will follow,

almost as of course, that a new trial will be
ordered. This is what seems to have occurred

in Palmer and the judgments do not record any

submissions supporting the making of another
order.

Your Honours, in the minority judgment the point of departure between Mr Justice Sheller and

could be made of the subsequently delivered	the majority appears to have been as to what use
judgment.

McHUGH J: That is the vital point, is it not?

MR BARRY: That is so.

McHUGH J: That is the vital point.

MR BARRY:  Yes, because the Court of Appeal was entitled to

say to themselves, "But if we remit the matter back

to the District Court to be dealt with in

accordance with our direction, what will then

happen in all probability - it need not, but what

will happen probably will be that the trial judge

will then go through the process of giving judgment

and giving reasons at the same time.", so that what

the Court of Appeal then was entitled to consider

was whether or not, on an examination of the

defect or material in the way in which the trial reasons that were in fact given, there was any	judge dealt with the issues at trial which would
prevent the process or would have the effect of
persuading them to exercise their discretion
against such an order and to order a new trial.

McHUGH J: Supposing the trial judge had not given any

reasons? Take the case where the trial judge gives

no reasons at all. Can the Court of Appeal refer

the matter back to the trial judge and say, "Would

you tell us what your reasons would have been?", and so the trial judge sends up a screed saying,

"Well, these were my reasons". Could the Court of

Appeal legitimately refuse a new trial in those

circumstances?

Mulvena 11 2/10/92

MR BARRY:	It would depend upon what the grounds were of the appeal. If it were simply a complaint that there
was no reason given, well then, in my submission,
it could be sent back to the judge with a direction
that he give reasons.

DAWSON J: Because one of the prime purposes of giving

reasons is to found an appeal if it lies.

MR BARRY:	That is so.
DAWSON J:	And there would be an appeal.
MR BARRY:	That is so, and one of the concerns with Palmer v

Clarke, of course, is that if a judgment may be

given and there are time limits for appeal, then a

party may not know why he has lost if there is not

a rule that provides that reasons must be given at

the same time. In answer to Your Honour

Mr Justice McHugh's question, the respondent would

submit that it depends upon the circumstances of

the particular case.

Here what the Court of Appeal did in

"dismissing the appeal on the merits" may, with

respect to Their Honours, have no legal force or

effect because there was no appeal on the merits

then before them, but what was done by the trial

judge would be relevant to the exercise of the

discretion under section 75A(l0) and it would seem

that the majority took that into account in forming
the view that the appropriate way to deal with the

matter was as they did. Where Mr Justice Sheller

departed was in the proposition that the reasons

were available for any purpose and, in the passage

to which my learned friend has referred, that is

plain. But that would seem to be the point of

departure between the minority and the majority in

the Court of Appeal.

McHUGH J: 

As a matter of regularity, the trial has never

concluded, has it? This trial judge did not
conclude it properly because what he did must have
been a nullity and the Court of Appeal has
dismissed an appeal.

MR BARRY:  The trial concluded to the extent that all the

evidence was in and there was no complaint about

the procedures. During the course of the trial
the complaint was the way in which the judgment was

entered. So, in one sense the proceeding is

concluded. There was but one part of it that was

not properly concluded, that is, the giving of

reasons at the same time as the giving of judgment.

In the respondent's submission, the Court of Appeal may redress that error by exercising the discretion in the way they did.

Mulvena 12 2/10/92

DEANE J: In one sense, of course, if the order is a

nullity, the Court of Appeal was fully entitled to

send it back to the trial judge to conclude the

trial properly on the basis that in the

circumstances what he had done did not disclose

that he was proposing to act arbitrarily or

improperly or anything else.

MR BARRY: That is so.

DEANE J: Just mistaken a technical - - -

MR BARRY:	That is so, and if there had been material which would have demonstrated that when the matter went
back to the learned trial judge it would have been
dealt with in some way which might have otherwise
vitiated the process, then the applicant would have
a complaint that the Court of Appeal, in its
exercise of the discretion, miscarried because they
ought not to have exercised it in that way for that
reason. But there being no other vitiating factor of that nature, in the respondent's submission,
what they did they were entitled to do. Those,
Your Honours, are the respondent's submissions.

DEANE J: Thank you, Mr Barry. Yes, Mr Hughes?

MR HUGHES:  Your Honours, I can be very brief in reply

because the issues are very clearly in focus.

Your Honour Justice Dawson asked whether it

would be appropriate, in a case where the trial

judge simply gave judgment without reasons

pronounced at the same time or at all, to remit the
case to the trial judge with a direction that he

give reasons. My answer to that question would be,

no, because such a direction would collide with the

very provisions of Part 31 rule 9 which are quite
specific. In that connection, I concentrate on the

word "then" as it was construed in the Court of

Appeal.

McHUGH J:  Means "at that time".

MR HUGHES:  "At that time", yes. So, the Court would not

lend itself to a contravention of Part 31 rule 9.

We would respectfully agree with the remark

that Your Honour Justice McHugh made: "The

essential question in this case is whether the

reasons were available as a basis for the Court of

Appeal to mould the result", and that is - - -

McHUGH J: It is all a question of regularity, it seems to

me, Mr Hughes.

Mulvena 13 2/10/92

MR HUGHES:  Yes, and we say for the reasons indicated they

were not because to use them is really

countenancing a contravention of Part 31 rule 9.

It would be against policy to allow that situation to stand.

Now, there are two views possibly. The

existence of the countervailing views perhaps tells

in my favour as to whether what the trial judge did

was a nullity or not a nullity in as much as he

pronounced judgment in the first place

unaccompanied by reasons. The better view may well

be, I respectfully submit, that it was not a

nullity but a legal error that founded an appeal.

If it was a nullity, different consequences may

flow but that in itself is a question and this

rather unusual case, not altogether the first of

its kind but with a particular set of facts, does

give rise to a substantial question of principle.

And I would not wish to say anything more in reply,

Your Honours.

DEANE J: Thank you, Mr Hughes. The Court will take a short

adjournment.

AT 12.50 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.05 PM:

DEANE J:  The Court is of the view that an appeal in this

matter would not enjoy sufficient prospect of

success to justify a grant of special leave to

appeal. Accordingly, the application is refused.

MR BARRY:  May it please the Court, the respondent seeks its

costs.

DEANE J:  The application is refused with costs. The Court

will now adjourn sine die.

AT 1.06 PM THE MATTER WAS ADJOURNED SINE DIE

Mulvena 14 2/10/92