Murphy v Obst

[1996] HCATrans 213

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M26 of 1996

B e t w e e n -

DANIEL FRANCIS MURPHY

Applicant

and

HOWARD OBST, ANTHONY HOOPER and DAVID WELLS as members of the APPEAL COSTS BOARD

Respondents

Application for special leave to appeal

DAWSON J

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 5 AUGUST 1996, AT 12.07 PM

Copyright in the High Court of Australia

MR W.F. LALLY, QC:   If the Court pleases, I appear with my learned friend, MR J.B.R. BEACH, for the applicant.  (instructed by Coadys)

MR R.H. GILLIES, QC:   May it please the Court, I appear with my learned friend, MR D. MASEL, for the respondents.  (instructed by R.C. Beazley, Victorian Government Solicitor)

DAWSON J:   Yes, Mr Lally.

MR LALLY:   May we go directly to the special leave questions that have been addressed by the respondents in their summary of argument which meet head on the question as to whether or not this was a case that involved one issue or whether the court had before it a number of issues.  There was the statutory interpretation of section 18 which we have submitted was a case that was limited to determination by the primary judge and by the Court of Appeal solely to the question of whether or not an applicant who had been successful in the Criminal Court of Appeal and had a new trial ordered had to prove that he had incurred additional costs which triggered off the entitlement then to, as it were, start again in respect of his second trial or whether the legislation was to be interpreted such that that second trial had to in fact commence.

There were of course subsidiary arguments then as to whether, if we failed on that ground, in the circumstances of this particular case where the trial judge who had been selected heard preliminary argument, was that in fact a trial for the purposes of this legislation.

DAWSON J:   So the question was, what was the contingency which triggered the right to an order under the Act under the section?

MR LALLY:   Yes.

DAWSON J:   Could you separate that out in the circumstances from the matter of quantum?

MR LALLY:   Yes, with respect.

DAWSON J:   You could not on the judgments which were delivered in the Court of Appeal, could you, the majority anyway.

MR LALLY:   In this respect, the judgment in respect of the majority, when they come to the second part of section 18, go back and link the words “incurring additional costs” to ‑ ‑ ‑

DAWSON J:   But what they say is you have to incur additional costs subsequent to the first trial and that then entitles you to recover those costs as costs thrown away in the first trial.

MR LALLY:   Yes.

DAWSON J:   So that the contingency is, as it were, linked with the quantum inevitably.

MR LALLY:   The contingency, however, as to the way in which the Act had been interpreted by both parties and as a matter of practice, had been that once there was the event of the incurring of additional cost, that triggered off that entitlement.

DAWSON J:   Yes.  That was said by the majority to be a simplistic approach, not in accordance with what they said was the correct construction.  You could hope to hobble the Court of Appeal in their consideration of the section by some understanding previously between the parties or by reference to what had previously been the situation, could you?

MR LALLY:   So long as there were certain steps taken by the court to ensure that the administration of justice was properly carried out.

DAWSON J:   Mr Lally, you were given the opportunity to raise the point, were you not?  You were able to put in submissions after the judgments had been delivered but before judgment had been entered?

MR LALLY:   Those submissions were in respect of costs.

KIRBY J:   Yes, but why did not you move to stay the entry of judgment before the orders were perfected and then move the court to correct its orders having regard to what you say is the procedural unfairness that has occurred.  That is what happened to me in another place.  On one occasion, Justice Sheller and I completely changed our orders because it was demonstrated that the matter had been conceded in the course of the hearing.

MR LALLY:   This court had gone on and determined the ultimate issue and it would, in effect, then be saying to the majority, “We want you to sit as a Court of Appeal in respect of the issue that you went on to decide.”  The point is demonstrated by reference to Pantorno’s Case and Autodesk v Dyason, the very point that ‑ ‑ ‑

DAWSON J:   What would you be asking us to do?

MR LALLY:   We would be asking your Honours to either determine it yourselves or, alternatively, to remit it for determination by a differently constituted intermediate appellate court.

KIRBY J:   But why should we do that?  I repeat that in the case that I sat with Justice Sheller, it was demonstrated to us that a point on which we decided the case had been conceded and we immediately corrected our orders as was required, because we had acted on a wrong basis.  Why would one reconstitute the court?

MR LALLY:   Because this court determined that, as a matter of law, it had to decide what the whole of the section meant.

KIRBY J:   Yes, but your point is that you say that this was agreed and, therefore, they should not have done that.  What I want to know, is there a procedure in Victoria whereby you can move the court before the orders are formalised to change its orders?

MR LALLY:   Certainly, but there are a few steps, if I may ‑ ‑ ‑

KIRBY J:   Why did you not do that instead of troubling us?

MR LALLY:   Because this court, or the Court of Appeal, had gone on and determined the ultimate issue.  As distinct from Pantorno’s Case, there it was a question of whether or not counsel should have moved the court to be able to call evidence that would have enabled the court to give further consideration to the legal issue, but this court, on a point where there was no notice of contention given by the respondent that they disagreed with the judgment of Justice Mandie that our interpretation of the triggering off principle was correct, they did not come to that court on that basis.  It simply was not before the court.

Now, to say to the Court of Appeal, “Well, you’ve overlooked something”, it was simply not before the court.  In our State, the notice of contention rules are the same as in the High Court.

KIRBY J:   That is so in other places too but what I want to know, because this is very important to my consideration, it does seem to me that the court may have acted in a way that you did not expect, but they did not order that their orders be entered immediately.  They specifically stayed them for further argument on costs.  It may not be a formal order but the orders were not perfected.  You then had the chance when you came back to move them to correct their decision and their orders but, instead, you contented yourself with arguing the question of costs instead of saying to them, “You’ve acted unfairly to us.  You should correct your orders.”  It could have been done then.

MR LALLY:   Yes, I accept that.  There was no reservation of opportunity to argue the case itself.

KIRBY J:   But you could move it.  The orders were not perfected.  This has to be understood, that until the orders are perfected, the court can alter the orders.

MR LALLY:   We accept that, but the court had fundamentally entered the area of deciding the final issue before it had even exercised its discretion as to whether or not that should have been raised, and it was a concession clearly of law and fact, in our submission, that the respondents were there to argue the one point only and to say, if the court, as in Pantorno’s Case, had not gone on and decided in the majority judgments that ultimate issue, then it would have been appropriate, but here we were left with a situation where you would be saying to the court, “Well, not only should you not have allowed that issue to be raised but you shouldn’t have gone on without giving any opportunity at all”, and so far as opportunity is concerned, Autodesk v Dyason makes it clear, in our submission, that the relevant opportunity has to be two matters prior to the pronouncement of judgment.

KIRBY J:   I think that can be accepted but why should we infer that if you brought the matter to the attention of the Court of Appeal of Victoria, pointed out a procedural unfairness had occurred, that their Honours would not, out of intellectual integrity and honesty, simply allow you to argue the matter and then determine it as the law required.  That, I repeat, is what happened to me in another place.  These applications, to stay the entry of orders and prevent their perfection, are commonplace in New South Wales.  Courts work under great pressure.  It is easy to make slips and that is the procedure that is adopted in another place.  Now, why was that not the appropriate procedure adopted in Victoria here.

MR LALLY:   As I have stated, that their Honours had gone on and decided the ultimate issue as a matter of construction when the matter had not been put.

KIRBY J:   What you have to say, therefore, is that they would not undecide it and decide it in another way because they were stuck with what they had decided.  That negates the integrity of a judge whose duty is to determine the matter on the proper arguments when he or she understands that he or she has made a mistake.

MR LALLY:   It is not as though the court could have overlooked it because the concession is clearly there in the Board’s reasons.  It is not as though counsel are coming to the court with some understanding in the court below.  It is there expressed in the terms of the statutory wording that appears in the reasons of the Board themselves at page 43 of where the Board clearly adopt the wording:

which in its assessment of the material before it the Board considers were -

and they are obviously referring to costs there -

reasonably incurred by the Applicant before the conviction was quashed -

It cannot be said, in our submission, where the matter comes to the primary judge and where in the application book at pages 57 and 58, his Honour there concisely determines that the “trigger” issue is as we contended and as Mr Justice Callaway determined.  With respect, it is not one of those cases where there had been some understanding, as it were, between parties that the court was kept in the dark about.  It was clearly there as a matter of law where the court had before it that very judgment in respect of which the appeal was to be determined.  It went on in those circumstances well prior to even pronouncing of judgment.

So it was too late for us in that respect of where it had not given any opportunity whatsoever.  It had not made any decision as to whether, under the rules, it ought to allow the concession to be withdrawn.  It had not made any determination as to whether leave should be given for a notice of contention to be served, and it is quite a different case than ‑ ‑ ‑

KIRBY J:   And had not signalled to you so that you could put submission why they should not act in this way.  The court had not come back and said, “Look, we’re worried about this point”.  I think all of that is given.  The question is why, when the judgments were published and before the orders were perfected, you contented yourself with putting in submissions that raised this point on the issue of costs, but did not move the court to vacate its orders or not to have them entered, to stay their entry, in order to permit full argument so that the correct orders could be entered.

MR LALLY:   Because, with respect, it is too late then when you have the majority who have gone past those steps that we have outlined.

KIRBY J:   I just do not accept it, because I say to you again, in another place the court completely changed its orders and that is not uncommon in New South Wales because slips can occur.  Busy courts can overlook things.

MR LALLY:   But, with respect, this is not a slip.  This is the determination ‑ ‑ ‑

DAWSON J:   I think that what is being put to you that if, in fact, the court were convinced that they had reached a wrong conclusion as to the construction of the statute or the result of the case on the basis of which you put, they would have adapted their course accordingly.  I mean, what you are saying is that they had closed minds simply because they had not heard the argument you wished to put but that is not the nature of a court of that stature.

MR LALLY:   There were two steps, of course.  The statutory construction point would come only after the court had exercised its discretion as to whether or not he had gone past the concession.

DAWSON J:   I am not sure and that is why I put what I put to you at the beginning, Mr Lally.  I am not sure that you can separate out the two questions of quantum and the contingency which triggers the section.  It seems to me that at least on one view of the majority’s judgment, the two are inseparably bound up together, but that would have been a matter of argument.

MR LALLY:   Yes, and you are then left with the court that it is determined where now you do not have, as it were, an accused who has been successful who would otherwise, under the legislation which was, in our submission, clear in the second part of it, that they should receive their costs of - including the appeal up until the time the conviction was quashed.  Now, it is uncertain as to whether they have to be able to fund a second trial, to be able to then demonstrate that there has been some replication.  It is just not certain now as to whether you would need to have an appeal and a second trial to be able to recover the costs of the appeal in the first.  It is not, with respect, as simple as saying the method of approach of the majority determines that the costs are to be recoverable in the way they have decided.  There are more difficulties created with that decision than there were before, with respect ‑ ‑ ‑

DAWSON J:   It is not a very satisfactory section, is it?

MR LALLY:   No, but it is made even more unsatisfactory when you have a determination without that issue really being ventilated by any party as a matter of law before, and once ‑ ‑ ‑

DAWSON J:   What does interest me:  the conclusion to which the majority came must have been raised in the course of argument in some way or another.  Not at all?

MR LALLY:   No.  There is no challenge to the affidavit of our instructing solicitor.

DAWSON J:   No, it is not a matter of fact.  It is a matter of actual construction of the section.

MR LALLY:   No.  If we could take you ‑ ‑ ‑

DAWSON J:   It does not matter very much because counsel have got to assume that the court, when a question of law is involved, particularly the construction of a statute, will make up its own mind.  It is not confined to the arguments that the parties put.  It will think for itself.

MR LALLY:   We do not disagree with that, that the court has to make up its own mind.  In Autodesk v Dyason where those principles were discussed and where, at page 317, you, yourself, Justice Dawson, referred to that principle, said that it was particularly so where the issue had been raised below.  Well, here, of course, it had not, and in respect of ‑ ‑ ‑

DAWSON J:   That is what you say.  You say, “Well, at least before making up your mind on a matter of such significance, you, the Court, ought to have given us an opportunity to express our arguments”, but you were given that opportunity.

MR LALLY:   With respect, no. 

DAWSON J:   You did not seize it.

MR LALLY:   In respect of what the present Chief Justice says is the test for the opportunity at page 308 of Autodesk v Dyason of where his Honour said that the ground, that is the opportunity, to be heard is in one of two ways.  The first is, if the “ground is logically involved in a proposition that has been raised in the course of argument”, which it was not, or it is “considered by the court as an unconceded step in determining the validity

of a conclusion”, and that is where, in this case, where you had the concession, it does not fit within that ‑ ‑ ‑

DAWSON J:   But you could not concede the construction of the statute - no one can do that - and you had the judgments of the court.  You knew what the court was going to decide before judgment was entered, and the reasons for judgment of course.

MR LALLY:   Yes, but that opportunity is said to be an opportunity before pronouncement of the judgment.

DAWSON J:   That is a quibble, Mr Lally, here.

MR LALLY:   With respect ‑ ‑ ‑

KIRBY J:   Is not the legally relevant time the actual entry of the orders by the court and the role or the register of the court?  You did have that opportunity.  In New South Wales, there is even authority to suggest that a court can correct an order after perfection but, certainly, before perfection, before it is actually entered, you can move to vacate it or to prevent its being entered.  I must say to you, I am basically with you on the procedure that was adopted but you had your chance and you did not seize it.  You contented yourself to talk about the issue of costs.

MR LALLY:   I am only repeating myself, that when you look at what has occurred where they go on in this case and determine the ultimate issue as a matter of construction, that it is appropriate that this court then remit it to an intermediate appellate court for the determination of the issue that simply was not before them because, otherwise, you have the situation that has resulted where the result is totally unworkable and it is a matter of extreme injustice for this particular applicant who would otherwise have succeeded on the very issue that had been the subject of advice at the highest level in our State to be put before the court for its determination and no other matter.  Now, it is a matter where the Court should, in those circumstances, make the orders that we seek.  If the Court pleases.

DAWSON J:   Thank you, Mr Lally.  The Court need not trouble you, Mr Gillies. 

Even accepting the applicant’s contention that he was initially denied the opportunity to place before the Court of Appeal matters which may have affected the outcome of this case, that opportunity was ultimately afforded the applicant when the court stayed the entry of judgment pending argument on the question of costs.  The actual decision of the Court of Appeal relates only to the interpretation of a local statute of doubtful construction and does not raise any question of principle.  Accordingly, special leave to appeal is refused.

MR GILLIES:   I seek costs, your Honour.

DAWSON J:   Can you say anything about that, Mr Lally?

MR LALLY:   No, sir.

DAWSON J:   It is refused with costs.

AT 12.27 PM THE MATTER WAS CONCLUDED