Patton v Buchanan Borehole Collieries Pty Limited

[1991] HCATrans 371

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S73 of 1991

B e t w e e n -

RONALD PATTON

Applicant

and

BUCHANAN BOREHOLE COLLIERIES

PTY LIMITED

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

Patton 1 13/12/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 DECEMBER 1991, AT 2.52 PM

Copyright in the High Court of Australia

MR J.A. CRUMPTON, QC:  May it please the Court, in this

matter I appear with my learned friend,

MR P.M. SEERY, for the applicant. (instructed by

Maurice May & Co)

MR v. BRUCE, QC: If it please the Court, in this matter I

appear with my learned friend, MR M.L. WILLIAMS,

for the respondent. (instructed by Sparke Helmore

& Withycombe)

MASON CJ:  Mr Crumpton, in an earlier case the Court granted

special leave to appeal to consider the question

which is at issue here, that was the case of G & J

Shopfittings. That case was settled and the result

was the Court was denied the opportunity - not
really, as it were, not given the opportunity, but

actually denied the opportunity of determining the

question, so in that context it might be more

profitable for us to hear, in the first instance,

from Mr Bruce.

MR CRUMPTON:  May it please the Court.

MR BRUCE: If Your Honours please. While Your Honours

express the view that it is the same point, with

respect it is a different point. This is a

different decision and, with respect, His Honour

Mr Justice Priestley encapsulates the issue which

was before the Court there and which falls for

decision here at page 17 of His Honour's judgment,

line 25 and following. With the greatest respect

to His Honour, we would submit that His Honour

correctly states the law here:

The power under s 89(1) could of course,

after the discharge of the jury, be invoked by

an application under the section, but if then

exercised, a further trial would have to begin

before the judge sitting alone, and, unless
the parties consented to the evidence before

the jury in the aborted trial being used in

the further trial without the need for

recalling the witnesses, would have to start

over again as a completely new trial.

When the matter was before Your Honours on the last occasion in G & J, that was a matter which was

propounded by His Honour Mr Justice McHugh in the

course of argument and which was not picked up by

the counsel. His Honour Mr Justice Priestley takes

that view. It resolves this matter. The factual

matter in this case was that the trial aborted

because the time that the court had available to

determine the case had expired. The jury was

discharged, the hearing had to be conducted at some

other time and at some other place. The question

then was, at the occasion of that next hearing,

Patton 2 13/12/91

should there be an order made pursuant to 79A in
the district court but, for all practical purposes,
section 89 of the Supreme Court Act, should an
order be made taking into account the
considerations which the Court of Appeal, as said
in Pambula, are the relevant considerations for

deciding how that matter should be determined.

Also from a perusal this morning of the

transcript of the proceedings before Your Honours

on the occasion when leave was granted in G & J

Shopfitttings, it was put to Your Honours that this

was a matter which had general application

throughout four States of Australia. A perusal of

the legislation and rules in those four States,

with respect, does not support what was put to

Your Honours. It would appear that there is

legislation in 89 of the Supreme Court Act, 79A of

the District Court Act and the rules regulating the

Supreme Court of Victoria.

In Victoria there are two decisions of a

single judge dealing with those rules or their

predecessors. There is a series of judgments in

the Court of Appeal here reaching a result which we

would respectfully say is the appropriate result as

is defined in the judgment of His Honour

Mr Justice Priestley. When one looks, in our

respectful submission, to the rationale,

His Honour's views, we would submit are the

appropriate procedure to follow because when one

looks - I am sorry, Your Honours, before I go to

that there was one other matter which I observed in

the transcript which was put to the Court that

heard the G & J matter from the bar table and that

was that 10 to 15 per cent of jury cases were

aborted and this question would arise in those.

With respect to the counsel putting that to Your

Honours, that is certainly not my experience or

understanding of the proportion of jury cases which

end in that result.

MASON CJ:	What percentage do you contend for?
MR BRUCE:	Of those that start, Your Honour, it would be

less than 1 per cent. The vast majority of jury

cases are resolved. There is a lesser - certainly

,not 10 per cent - which do not go the distance.

They may be in defamation cases where there are

these highly technical rules that have been

evolved, but the vast majority of jury cases in

this State relate to factory accidents and they,

almost invariably, either are settled or go to a

determination by the jury.

MASON CJ: I hardly think that statement would have been an

influential factor.

Patton	3	13/12/91
MR BRUCE:	Oh no, but it was put, Your Honour.	The two

factors which made this a matter of general

importance were the percentage which was relevant

and the fact that it was spread through four

States. We would say, on the other hand, it is a

procedural matter, the practical effect of which is

minimal because, when one starts a trial before a
jury, there are various considerations in the

manner in which the trial in conducted: who is

called, how people are cross-examined, what is put

to them and so on. If a hearing then aborts, for

whatever reason, for example in this case the time

allotted by the court expiring, the question then
is how it will proceed. If it is to proceed

because of the application of the general rules relating to a determination under 89, then what

His Honour Mr Justice Priestley determined, we

would respectfully submit, is appropriate, that is

the parties can elect to have the material, the

evidence before the jury, put before the trial

judge or another judge, or they may have parts of

it and recall particular witnesses. So that the

parties get the opportunity of conducting the

matter before the tribunal which decides the case

in the manner in which one would properly.conduct

the proceedings before that tribunal.

There are many factors no doubt in jury trials that, when one gets to the end of the day, what the sections say is that the matter would be determined

by or tried by a judge or, alternatively - I am

sorry, what it says is:

In any action, the Court may order, ..... that all or any questions of fact be tried -

prospectively -

without a jury.

If one starts with a jury, discharges the jury and

then proceeds, "be tried" does not apply to that

polyglot hearing where part of it is before a jury

and part of it is before a judge sitting alone.

What we respectfully submit is that the terms of

79A, which are virtually identical to 89, lead

properly to the conclusion that

Mr Justice Priestley expressed in his judgment.

For those reasons, Your Honours, and bearing

in mind - - -

GAUDRON J:  Does this mean that no issue could be excised by

the trial judge after some evidence bearing on it

had been given before the jury?

Patton	13/12/91
MR BRUCE:	It may mean that, Your Honour; it does not

necessarily mean that. In fact, the other States

pick up that particular thing and provide for it by

statute. We do not do it here.

GAUDRON J:	Does your submission mean that the decision must be made as to what is or is not excised from the
jury before any trial begins?
MR BRUCE:	Your Honour, that all depends upon whether or not

it is done without the consent of the parties.

Anything can be done with consent.

GAUDRON J:  I am not too sure about that. I would not see

that that followed from your argument.

MR BRUCE:  We respectfully submit, Your Honour, that the

parties could agree that a particular aspect of a

case could be decided in some other way; for
example, by sending it out to a referee, which is a

very trendy way of deciding cases in New South

Wales.

GAUDRON J: Yes, one knows that, but the point is at what

stage of the proceedings that agreement might be

reached.

MR BRUCE:  Yes, Your Honour. We would say, with respect,

that once the trial is embarked upon that it is not

open under these rules to say, stop -

GAUDRON J:  And that must be so, even if it is by consent,

though, must it not?

MR BRUCE:  No, Your Honour, with respect, because the

parties can, in our respectful submission, agree to

their matter being determined in any way by the

court. There is no statutory restrictions on what

the supreme court can do if the parties agree.

That is our submission, because they can agree to

waive the rules of evidence, for example.	They can
agree to have the judge have a view without anyone

present. They can do all sorts of procedural

things, but what is ultimately the matter which

concerns the parties is the judgment which is

entered and it is the judgment of the court. The

steps that are taken to enable the court to arrive

at that judgment are matters which can be, in our

respectful submission, varied by the consensus of

the parties.

But, Your Honours, we would respectfully

submit that those differences from the G & J

Shopfitting case are sufficient to indicate that

special leave should not be granted in this case,

because in addition - I think I put this rather

inelegantly - there is no real matter of concern in

Patton 13/12/91

the administration of justice because, if a jury is discharged, the court can make a decision as to how the hearing is to proceed and then what happens

during that hearing is a matter for the court and

the parties.

That is all I wish to put to Your Honours.

MASON CJ: Thank you, Mr Bruce. Yes, Mr Crumpton.

MR CRUMPTON: 

If the Court pleases. We submit that the

question here before the Court is precisely the
same question as that which was before the Court in

G & J Shopfittings, namely if whether the section

of the District Court Act, in this case section 79A

which, for the purpose of the present exercise we

accept is the same as the provisions of the Supreme sections respectively entitle or empower the trial judge, during the course of a trial, to discharge a jury and to continue to hear the action and give

judgment as a judge sitting alone. That was the

question which was raised in G & J Shopfittings

case, and it was in respect of that - that is the
interpretation of the section - was the basis upon

which special leave was given by the Court.

In our respectful submission, this situation,

namely for a variety of reasons the judge - whether
for the reasons in G & J Shopfittings or for the

reasons which are set out in the judgment of

His Honour Judge Denton in this case - where a

judge feels for proper reasons obliged to discharge
the jury, whether he may then continue to hear the

matter, as His Honour Judge Denton did in this

case. We would submit, Your Honours, that it is a

matter of very great public importance affecting

the administration of justice, that there is

legislation in other States which raise similar

questions - although the legislation is not in the

precise terms in some States, it would still be

very much illuminated by the considered decision of

this Court - and there are some 6000 jury trials
awaiting trial in New South Wales alone at the

present time. There are more jury trials being set

down because in very many cases the defendant at

the appropriate time seeks a trial by jury and the

matter cannot, in our respectful submission, be

distinguished from the G & J Shopfittings case.

DEANE J: Mr Crumpton, what was the issue about section 79A?

Was the argument about whether the judge could order, at that stage, that the trial be without a jury or was it about whether, if that order was

made, he had to go right back to the beginning? I
mean, was it suggested by the defendant that if it

was going to go on or if the trial was to be

Patton 6 13/12/91

without a jury and to be before the learned trial

judge, he had to start all over again?

MR CRUMPTON: In effect, yes, Your Honour. It is set out in

His Honour's judgment at page 10 of the application book.

DEANE J: Yes, that is what I was looking at.

MR CRUMPTON:  And there is, I think, quite clearly a

typographical error on the top line of that page:

It was then put for the -

defendant, it should be -

that there is no power for the jury to be

dispensed with once the trial has begun. This

argument - - -

DEANE J: That, presumably, means that there was no power

for an order to be made under section 79A once the

trial has begun.

MR CRUMPTON: That was so, Your Honour.

DEANE J: But that does not really take it very far.

MR CRUMPTON:  It then continued, of course, that His Honour

could not continue to hear the trial himself.

DEANE J: Where does that appear?

MR CRUMPTON:  That was implicit in the - it certainly was

the subject of argument, Your Honour, and that was

the basis of the appeal to the Court of Appeal.

DEANE J:  I think I am being obscure. Was it put to

His Honour, "Now, the trial having begun and gone

to this stage, the power to make an order under

section 79A has gone forever."?

MR CRUMPTON:  I do not know that it was put that an

application could not at some later stage be made

but it is drawn to my attention, Your Honour, that

at the top of page 9 in His Honour's judgment he

deals with - - -

GAUDRON J:  What the submission really was was that it was

not a power that could be exercised in the course

of a trial.

MR CRUMPTON:	Yes, that is so.
GAUDRON J:	So what that allowed was that the jury might be

discharged and before a new trial commenced an

Patton 7 13/12/91

application might be heard and considered but the

new trial would have to start all over again.

MR CRUMPTON:  I think both aspects were put, in fact,

Your Honour, that once the trial had begun the power was gone.

MASON CJ:  The estoppel point has dropped out of the case,

has it not, Mr Crumpton?

MR CRUMPTON:  Yes, Your Honour. On Verwayen's case -

MASON CJ:  It is not included in your proposed notice of

appeal?

MR CRUMPTON:  No, that is so, Your Honour.

MASON CJ: Very well, we need not trouble you further.

There will be a grant of special leave to appeal.

MR CRUMPTON:  If the Court pleases. Would Your Honour make

an order for costs?

MASON CJ: That is not necessary. Costs become costs in the

appeal and eventually are disposed of by an order

for costs on the appeal.

MR CRUMPTON: If Your Honour pleases.

AT 3.12 PM THE MATTER WAS ADJOURNED SINE DIE

Patton 13/12/91