Oldfields Pty Limited v Toufic Alfar

[1996] HCATrans 107

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S164 of 1995

B e t w e e n -

OLDFIELDS PTY LIMITED

Applicant

and

TOUFIC ALFAR

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 15 APRIL 1996, AT 12.20 PM

Copyright in the High Court of Australia

MR C.G. GEE, QC:   If the Court pleases, I appear with my learned friend, MR P.H. GREENWOOD, for the applicant.  (instructed by Hickson Lakeman & Holcombe)

MR M.L. WILLIAMS:   If the Court pleases, I appear with my learned friend, MR R.A. DALGLEISH, for the respondent.  (instructed by Carroll & O’Dea)

DAWSON J:   Yes, Mr Gee?  Now, you need not repeat the arguments you have already put.

MR GEE:   I promise not to, your Honour.  First of all, the judgment in the proceeding tends to suggest, although it does not say so in so many words, that the Ramton-style approach really governed what happened in Oldfields as a matter of practice.  His Honour, the President, at page 37, lines 19 and 20, said:

Nothing that the Court does, or says, today will close the claimant off from raising the objection which has been advanced in support of the summons for leave to appeal.

The issue is one of timeliness.....those matters will be left open to the claimant.  They are more conveniently dealt with at the time of an appeal against the final judgment than at this stage of the proceedings.

So we had what, on the face of it, appears to be the convenience argument although dismissing the summons does seem a slightly odd result in those circumstances.  The twist in Oldfields is this, if your Honours please: appended to our written outline are some extracts from the Supreme Court Act and I would respectfully ask your Honours to be good enough to go to the last three pages appended to our outline.

TOOHEY J:   You are not speaking of verbatim?  You are speaking of the paraphrase of the relevant sections, are you?

MR GEE:   No, no, your Honour, actually appended to our written outline in an attempt to try to save time we did annex some photocopies.  May I hand up another clean copy for ‑ ‑ ‑

TOOHEY J:   My copy of the argument does not have it, but I think it was provided for the earlier application.

MR GEE:   No, it was not, actually, your Honour, because that was from the District Court.  This was within the Supreme Court.

GUMMOW J: Section 101 of the Supreme Court Act.

MR GEE:   Yes.  May I immediately cure it for Justice Toohey by handing up a copy which does have the annexures.

TOOHEY J:   Thank you.

MR GEE:   Now, your Honours will respectfully recall that this was a matter in which a judge of the court heard an appeal from a Master and so it was all within the court. Hence, section 101(1), on the face of it, provides the path to the Court of Appeal:

An appeal shall lie to the Court of Appeal from -

(a)  any judgment or order of the Court in a Division -

and then that is amplified in subparagraph (b), but subsection (2) says:

An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from -

among other things -

an interlocutory judgment or order in proceedings in the Court.

Now, Acting Justice Spender’s judgment had that character on one view because it upset the Master’s decision refusing the intending plaintiff leave to proceed ‑ ‑ ‑

GUMMOW J:   The Master denied it, the acting judge allowed it.

MR GEE:   Yes.  The result was that there was a decision arguably interlocutory in character and if it was not, incidentally, we get back to the exact situation in Ramton.  We would have a dismissal of the leave and no further basis for testing that.  So at the moment I am assuming it is interlocutory.  Now, the words of the Act are absolutely crystal clear:

The appeal shall not lie......except by leave -

that is, absent leave, there is no right.  Once the summons for leave was dismissed - I am sorry, I will put it differently.  There are two ways in which the right in an interlocutory matter might be lost.  One would be that no application for leave was filed within the time limited by the rules or as extended by the court.  That did not happen here.  The other would be that an application for leave was made, as here, and is dismissed.  With that dismissal went any right to appeal.  Yet, his Honour the President, delivering the reasons of the court proceeded, unmistakably, in our submission, on the assumption that everything was going to be open at the end.  That presupposed that if there was a trial and a verdict in favour of the plaintiff who by now enjoyed his leave under the Workers Compensation Act ‑ ‑ ‑

GUMMOW J:   We still do not know, Mr Gee, what is going to happen at the end of the Court of Appeal.

MR GEE:   We do not.

GUMMOW J:   Well, why should we jump into it now?

MR GEE:   Well, for this reason, with great respect, your Honour.  The point will only arise if the plaintiff wins.

GUMMOW J:   There will be many cases out there from what you have been telling us.

MR GEE:   That makes our application for leave a fortiori, your Honour.

GUMMOW J:   No, it does not - many better cases - - -

MR GEE:   In our respectful submission, the way it works is this:  the plaintiff, let us assume, gets a verdict.  The point does not arise if he does not.  The defendant, having just suffered that, wants to reagitate, never having had an opportunity to do it before, whether the original decision granting the plaintiff leave to proceed was right or not.  That opportunity in this case is being denied by dismissal on the basis of prematurity, not on the basis of demerits.  And that question cannot be reagitated.  So that the underlying assumption - apart from the fact that Ramton v Cassin played its part, and that does not emerge from the judgment, but I believe if we had to, counsel would not be far apart on the extent to which Ramton actually played its part - means that in this case, for slightly different reasons from the preceding one, there is a foreclosure of that issue. 

I add to that, adoption, so to speak, of my submissions in Ramton to the extent that they go to the point of the way this is spreading through the system but say no more, and close these submissions by asking

your Honours to look at the matter on the basis that the application should not be regarded as meritless merely because the oral submissions in support thereof have not had to be lengthy.

DAWSON J:   Thank you, Mr Gee.  Mr Williams?

MR WILLIAMS:   Your Honours, I had understood that my learned friends were to rely upon the transcript before the Court of Appeal, for that transcript discloses, as does Mr Justice Kirby’s brief judgment, that there were a number of reasons considered in the exchanges between counsel which led the court not to simply dismiss the case on the basis that it was another short Ramton v Cassin point, but there were some quite extensive deliberations.  I wonder if I might ask my learned friends for the indulgence of their copies of the transcripts to hand to the Court.  Your Honours will see there are something in the order of 14 separate reasons that are illuminated on the way through the transcript.

Firstly, at page 1, line 25, Mr Greenwood attempted to distinguish Ramton.  Lower down the page the President said, “Can’t it be tucked away to the end of the case?  95 per cent of cases go away and settle.”  Over on to page 2 the President repeated that assertion and again later at page 5, and then there are a number of points which were specific to the particular facts of the case, and at page 4, point 5, there was a point put about the lack of understanding of the plaintiff of the English language.  It must be remembered, as pointed out in the applicant’s submissions, your Honours, this plaintiff was fluent in German and Arabic, but there was no finding about his English and Acting Justice Spender dealt with that in some detail and showed that he clearly did not understand English in sufficient detail to appreciate the intricacies of the Workers Compensation Act. 

The difficulties all arose from the fundamental point that the plaintiff had been to see four separate firms of solicitors and two barristers and he had been given incorrect advice.  The Master noted that at page 2 of the aplication book and simply made no further finding about it, and it is a matter which concerned at least the President.  At the bottom of page 2 of the application book, line 20, the Master said:

The advice included a written advice of some nine pages.....it addressed a number of matters including the questions of common law rights......it does contain some erroneous material.

The erroneous material was fundamentally wrong because it was to the effect that the plaintiff had an election and he had to choose between taking workers compensation benefits or claiming damages and nothing could be more fundamental to the error, and that is the advice that the plaintiff was given.  Even if he understood it he was proceeding on incorrect advice, and that was simply not dealt with by the Master.  It was referred to by Acting Justice Spender.  It was dealt with there on page 4 of the transcript.  It was a matter that was of some concern.  Continuing on at line 35, page 4, the President said:

Do you say the plaintiff himself revealed that he did not have knowledge which the Master displayed?

That was amply borne out in my submission.  And then at page 5, line 15, there is a reference to some Abalos-type findings. 

DAWSON J:   I see you concede there is a general rule in Ramton at line 20, Mr Williams.

MR WILLIAMS:   It was appropriate to seek to apply the case at that stage ‑ this was only a few short weeks after Ramton had been delivered - and the Futuris case was actually dealt with later on in the day on the same day as this judgment and a sharp distinction - your Honours will see, having looked at Futuris, it was simply a brief Ramton v Cassin dismissal, whereas here there was, as I am developing, some detailed examination of the merits of the case.

TOOHEY J:   Mr Williams, in this case, which was under the Workers Compensation Act, is the application for leave to proceed the subject of a separate proceeding separately numbered?

MR WILLIAMS:   It can be done both ways, as I understand it, your Honour.  What happened in this case - if I could just hand up the legislation - the summons sought leave to proceed.  That was refused by the Master and then the order that Acting Justice Spender made at page 30 of the application book was leave to proceed and:

The appellant is to file a statement of claim within 7 days of today’s date.

Now, the plaintiff had already field a statement of claim and as my learned friends point out in their submissions on page 3 of the submissions, a fresh statement of claim was then filed.

TOOHEY J:   I am not sure of the answer to my question.  Was the summons for leave to proceed, a summons, as it were, in its own right separately numbered from the action that was later commenced?

MR WILLIAMS:   It was now.  There have been two separate actions, your Honour, but that is not a necessary consequence of the way the legislation is framed.

TOOHEY J:   It may have some bearing upon the question of whether the order is interlocutory or not.

MR WILLIAMS:   In my submission, given that a new statement of claim had been filed, the decision to grant leave to file that statement of claim must be taken to be an interlocutory step in the new proceedings and one which remains open to challenge at the end of the hearing.

GUMMOW J:   Is there any authority on this?

MR WILLIAMS:   None on that particular point that I am aware of.

GUMMOW J:   Not necessarily to do with legislation but there are many statutory regimes that require leave to commence actions in courts.

MR WILLIAMS:   None that I am aware of, your Honour, other than that the two cases that I have cited in paragraph 1 of the outline, that is in support of the general proposition.

GUMMOW J:   Yes, we understand the general proposition, but this is a rather specific situation.

MR WILLIAMS:   Not that I am aware of, your Honour.  To continue with the transcript, at page 6, the President set out a number of matters which may properly refer to general considerations:  the pressure on the court list; if the appeal awaits the conclusion of the trial they will have all the findings of fact available.  It will not be dealt with in two bites, and the Master’s decision could still be upheld at the end of the day.  At line 30, as Mr Justice Clarke says, saying this to Mr Greenwood:

You have to show a very compelling case, where you have an opportunity to come again.  You have to show a really compelling case.  Frankly, I can see no reason why you can’t come again when you deal with the whole case.

The court pointed, at line 45, page 6, to the extra costs that would be involved; that it would be necessary to “wait” - this is at line 50 - “until the end of next year” - that is the end of 1996 - to have the appeal heard simply on the interlocutory point.  And they were saying to the parties if it is only going to be a one day case, as was common ground, you should go away and hear the one day case, and come back, if not before then certainly not long after the application after the hearing of the leave appeal. 

Finally, on page 7, line 15, it had been suggested that this was an appropriate case to clarify principles arising from an earlier decision of the Court of Appeal in Salido v Nominal Defendant which dealt with leave under the Motor Accidents Act and the exchanges on page 7 indicate that the court seemed to accept the submission that it was not an appropriate vehicle for consideration of the general principles.  So, in conclusion, as the President says, having examined a number of facts, some peculiar to the case and some peculiar to  summonses for leave in general, this case was a broad line case which should not proceed specifically reserving the rights to raise the point at the end of the day.

DAWSON J:   What are the rights to raise the point at the end of the day?

MR WILLIAMS:   At the conclusion of any trial?

DAWSON J:   Yes.

MR WILLIAMS:   The applicant would have a right to challenge the Master’s findings.

DAWSON J:   On what basis?

MR WILLIAMS:   On the basis that ‑ ‑ ‑

DAWSON J:   It was an appeal against the judge’s decision here, was it not, but the appeal against the judge’s decision has been concluded.

MR WILLIAMS:   In my submission, no, your Honour.  What has happened is fresh proceedings have been commenced in a separate action.  The numbers are set out there at page 3 of my friend’s submissions, and the decision to grant leave to commence those proceedings ‑ ‑ ‑

DAWSON J:   The court ends up by refusing leave to appeal, so there is no appeal.

MR WILLIAMS:   In my submission it must correctly be categorised as an interlocutory decision in the commencement of the new proceedings.  There is no other way to characterise it, in my submission, and the court specifically reserved those rights.

GUMMOW J:   You say the refusal of leave to appeal by the Court of Appeal is an interlocutory decision by the Court of Appeal?

MR WILLIAMS:   In one sense, your Honour, yes.

GUMMOW J:   Yes.

MR WILLIAMS:   Not only was it specifically reserved in this case, but also in Ramton v Cassin - - -

GUMMOW J:   I am not sure about that.

MR WILLIAMS:    And if the case - I would hardly be able to stand up at the hearing of the substantive appeal and say I object ‑ ‑ ‑

DAWSON J:   So, you say that it should read the court refuses leave to appeal at this stage, but you may reopen the matter at the trial stage.

MR WILLIAMS:   Either at or after the trial, that is precisely what was put and I would be hard pressed to oppose that if, at the end of the day, the applicant wanted to run this as one of the points on any appeal.

TOOHEY J:   It is not the order of the Court of Appeal that is interlocutory, is it, or is it?  I mean, the section of the Supreme Court Act that Mr Gee took us to speaks of appeals to the Court of Appeal from the interlocutory judgment in order in proceedings in the court.  Now, it is not an appeal from Caesar to Caesar.  It is, presumably, an appeal from the interlocutory judgment or order given by a single judge of the court or perhaps by the Master, so it is not the judgment of Justice Spender that is the focal point for the determination of whether there is an interlocutory judgment, order or otherwise.

MR WILLIAMS:   It has two characters, in my submission, your Honour.  It certainly does that but the new proceedings cannot be commenced without that leave, without a consideration of that leave.  So it is, in my submission, truly an interlocutory decision in the new proceedings as well.

DAWSON J:   You can test it the other way.  What if Justice Spender had refused leave and you wished to appeal and you did, and the court refused you leave.  That would be the end of the matter, would it not, because the order of the Court of Appeal is final.

MR WILLIAMS:   Because there would be no proceedings to commence.

DAWSON J:   No, because the order of the Court of Appeal was to refuse you leave and that is it. 

TOOHEY J:   But you would have argued, surely, that it was not an interlocutory order, it was a final order because it shut you out from ever bringing proceedings.  What is interlocutory about that?

MR WILLIAMS:   If the plaintiff loses, yes, that is correct, your Honour.

DAWSON J:   It is the same both ways, is it not?

MR WILLIAMS:   But the defendant has not lost completely.  The applicant here has not lost completely.  He still has a right to take the point at the end of the day.

GUMMOW J:   There are decisions in this Court on special leave applications.  Carr v Finance Corporation of Australia is one where a lot seems to turn on this distinction as to whose loss below and what the consequence was. 

DAWSON J:   But it is a fairly arid argument to decide whether it is interlocutory of whether it is final in the circumstances, is it not.  If really what the Court of Appeal wishes to do is to give another chance to make the application at a more convenient time there are means of doing it and it should do it.  But there is no general principle which determines the question.  Each case should be decided on its own merits.  That is what it all comes down to, is it not?

MR WILLIAMS:   This is a particular decision on the facts and would not be a suitable vehicle, in my submission, if your Honours took the view that there was some merit in the general point.  If your Honours please.

DAWSON J:   Yes, thank you, Mr Williams.  Mr Gee?

MR GEE:   Very shortly, your Honours:  at page 6, incidentally, of that transcript, lines 24 to 26, Ramton v Cassin emerges as being a significant element in the equation. Next, we adhere to our point that something turns on the fact that there were two sets of proceedings: the summons for leave, and the subsequently instituted principal statement of claim and we have put what we need to on that. We only wanted to put that the point under section 101(2) is independent of that, that is, even if it were happening all in the one numbered proceeding and there was an interlocutory judgment properly so characterised, once the lead application is dismissed as here then you have forever closed off, we would put, the appeal against that

interlocutory judgement, and if you have done that on the basis that you can come back again later then that is an error that can only be cured now, with great respect, your Honours, by granting leave and allowing the appeal, otherwise we can never cure it.  It will not be done by some ancillary statement again. 

Next, it cannot be the case, your Honours, that we have to go the Court of Appeal every time we want to appeal against what might be characterised as an interlocutory judgment in order to get a reservation of rights.  My friend referred to the fact that in Ramton and in this case there was some statement made about reservation of rights, but it cannot be right in principle that you would have to go there just to get that sort of a statement and then have your application for leave dismissed, incidentally, with costs.  It must be more certain than that.  Thank you, your Honours.

DAWSON J:   The Court will adjourn now and will attempt to give its decision in this matters after lunch.  It will adjourn until 2.15 pm.

AT 12.44 PM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.25 PM:

DAWSON J:   In the transcript of the argument in the Court of Appeal in this case, and in the reasons of the Court of Appeal in Ramton v Cassin, there are expressions of view that as a general rule interlocutory appeals are to be discouraged where they concern steps preliminary to or during the course of a trial.  The applicant for leave is said to be fully protected by the avenue of appeal after trial.

As to this we say two things:  first, an application for leave must be considered on its particular merits and the implementation of any policy or practice for general application runs the risk of denying procedural fairness in the individual case.  Secondly, if there be any debate as to the subsuming of preliminary steps into the action which goes to trial , and thence to substantive appeal, the safe course is to stand over the leave application until any appeal after trial is instituted.

This case concerned leave under section 151D(2) of the Workers Compensation Act 1987 (NSW) to take common law proceedings out of time. Leave was refused by the Master but granted by Acting Justice Spender. The Court of Appeal refused leave. In doing so the Court of Appeal emphasised that a trial would last “1 day plus”, that delay would follow if the Court of Appeal granted leave to appeal against the decision of Acting Justice Spender, and that any rights of the claimant to appeal after trial were preserved.

Nothing has been said to show that the Court of Appeal fell into any error of principle in respect of which it would be appropriate for this Court now to intervene.  The application for special leave is therefore refused with costs.

AT 2.27 PM THE MATTER WAS CONCLUDED