Nominal Defendant v Hall

[2002] HCATrans 357

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S269 of 2001

B e t w e e n -

NOMINAL DEFENDANT

Applicant

and

BRETT EDWARD HALL

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 SEPTEMBER 2002, AT 10.41 AM

Copyright in the High Court of Australia

MR L.M. MORRIS, QC:   May it please the Court, I appear for the applicant with my learned junior, MS C.E. ADAMSON.  (instructed by Sparke Helmore)

MS S. NORTON, SC:   If the Court pleases, I appear for the respondent in this matter with my learned friend, MR P.N. KHANDHAR.  (instructed by John D. Hancock)

McHUGH J:   Yes, Mr Morris.

MR MORRIS:   May it please the Court, our complaint is that the Court of Appeal did not discharge their statutory obligation in coming to a judgment on the concluded evidence in a trial concerning a motorcycle which ran off the road.  The matter is dealt with broadly in the summary of argument.  The complaint is that the cornerstone of common law trial work is the trial itself and it concludes of course with all the evidence completely before the court and the judgment is made on that evidence.

McHUGH J:   Mr Morris, I appreciate the force of this, but militating against a grant of leave is the fact that it is a case concerning factual matters which ordinarily would not attract the grant of special leave.  If the Court came to the view that the Court of Appeal ought to have proceeded to consider the matter itself instead of ordering a new trial, it would mean that there would be an appeal to this Court if we granted leave, there would be a further lapse of time and increased expense in resolving what is a fairly simple piece of litigation.  Why in those circumstances in the exercise of our discretion is it not a proper case for us not to intervene in the matter?  That is the problem I see.  I think there is tremendous force in what you say, that the Court of Appeal should have looked at the matter itself.

MR MORRIS:   The Court of Appeal did not discharge the onus cast on it by 75A.  That is the first point.  That is spoken of in the authorities and in particular it is spoken of in Warren v Coombes 142 CLR by Justice Murphy.  I will take your Honours to the passage if I may in a moment, a passage cited with approval in that case, where his Honour says that the High Court is under a constitutional duty to determine the case.  Of course, here the Court of Appeal was under a statutory duty by virtue of 75A and they failed to exercise it.  The passage is to be found, I believe, at 550.  The passage upon which I rely is an extract from a judgment at page 550 of the volume which is cited with approval.  If I may read it, your Honours:

The parties to the appeal have a statutory right to the appellate court’s decision on the merits of the case.  If the appellate court is of the view that the appellant is entitled to succeed on the merits, it must not defer to the view of the primary judge.  On an appeal to this Court, the parties have a constitutional right to the decision of the Court on the merits.”

GUMMOW J:   Yes, I know.  That assumes they get through the door.

MR MORRIS:   Yes, but I am saying, your Honour, with respect, that this is a case where the Court should set out, because of its public importance, those matters which warrant a new trial and those matters where it should be determined by the Court of Appeal.  There is no defect in the system brought about by discovery or the rejection or admission of evidence wrongly admitted upon which the judgment is founded.  Here all the evidence was in and it was absent in two material respects for which we contended both at the trial and at the Court of Appeal.  That is the matter which ought be made clear, with respect, in terms of granting new trials rather than determining the issue as required under 75A, and it is a very important question.

McHUGH J:   It may be in terms of practice but we cannot be granting special leave to appeal every time an intermediate Court of Appeal departs from the traditional practice or even if it makes an error.  After all, our jurisdiction is no longer a simple error correcting jurisdiction.  Given the caseload that we have, we just have to select cases that raise fundamental questions which are of general public importance.

MR MORRIS:   But there is a second leg of the problem, with respect, your Honour.  That is the interests of justice.

McHUGH J:   That is a discretionary ground.

MR MORRIS:   Here it could not be clearer, with respect, because the Court of Appeal said, “Maybe we could deal with this.  We could actually deal with it but we’re not going to.  We’re going to send it back for a new trial”, which involves my client and the problems associated with that matter.  It invokes contrary to the normal procedure in respect of fresh evidence if the respondent had perceived a defect in their case and they knew what the defect asserted was because it was run that way at the trial.  The Court of Appeal had power to accept fresh evidence.  The respondent did not choose to do that.  So you have a concluded capsule of facts upon which the Court of Appeal has a statutory duty to write a judgment.  They say, “We could probably do it but we’re not going to do it”.

McHUGH J:   They have decided the case and they have set aside the verdict for the plaintiff.  Have they not discharged their duty then?  What other order they make is then a matter for their discretion.

MR MORRIS:   With respect, your Honour, we are appealing from that because we say that they failed to do that which the section requires of them:  shall proceed to rehearing.  They did not do that.  They did not hear it at all; they only went halfway.  They said, “We’re not going to rehear it; we’re going to send it back”.  Mr Justice Stein dealt only with one of the fundamental propositions.

GUMMOW J:   I think you are putting a gloss on the word “rehear” in 75A.

MR MORRIS:   I apologise if I have done that.

GUMMOW J:   You may be right to do so and perhaps you are.

MR MORRIS:   They did not rehear it in accordance with 75A, in my respectful submission.  There are circumstances of course where the Court of Appeal should properly refer the matter for a new trial where there is a procedural deficiency or a procedural unfairness or matters of discovery and the like which we have touched upon in our submissions, but this was not one of them.  This is the classic case which calls for a determination on the finalised evidence.  I think all of that has been extensively dealt with in the written submissions, as your Honours would see.

McHUGH J:   Yes, I know.  We would not decide it ourselves.  We would just remit the matter back to the Court of Appeal if we granted leave and your appeal succeeded.  Then the Court of Appeal might give reasons for saying why they think the matter should go back for a trial, that they could not resolve the matter for some reason or other, and what is fairly simple litigation would be the product of more expense and delay.

GUMMOW J:   This accident was in 1997, was it not?

MR MORRIS:   It was.  I understand what your Honour is putting to me of course.  Might I just say this about that.  We would have to get leave for it to be remitted back of course, and that is what we seek in our alternative remedy, but then we would have a concluded judgment.

McHUGH J:   You mean by the Court of Appeal?

MR MORRIS:   In the remission process the Court of Appeal would be called upon by that remission to do that which it should have done in the first place, namely come to a decision.  That would be economical, swift and satisfactory.  Really I do not want to say any more about it than that.

McHUGH J:   Yes, thank you.  Yes, we need not hear you, Ms Norton.

The issues that would arise on an appeal to this Court in this matter turn upon factual questions and ordinarily would not attract a grant of special leave to appeal.  The New South Wales Court of Appeal set aside a judgment for the plaintiff, the present respondent, and ordered a new trial.  The applicant in this Court, the defendant at the trial, seeks to have this Court set aside the order for a new trial and order the entry of judgment for it in the action.

There is a question whether the Court of Appeal ought to have proceeded as it did in ordering a new trial.  In the circumstances of the case, it appears to us that the preferable course was for the Court of Appeal itself to have proceeded to dispose of the action on the record before it.  However, if leave were granted and the Court came to this view, the Court would ordinarily allow the appeal but remit the matter to the Court of Appeal for reconsideration.  That would involve a further lapse of time and the increased expense of a High Court appeal in resolving what should be fairly simple litigation.

In the circumstances, the interests of justice are best served by there being no intervention by this Court in the implementation of the order of the Court of Appeal for a new trial.  Accordingly, the application for special leave is refused with costs.

AT 10.54 AM THE MATTER WAS CONCLUDED