Pearson & Anor v District Court of NSW

[1997] HCATrans 56

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S135 of 1996

B e t w e e n -

NEIL PEARSON

First Applicant

NEIL PEARSON & COMPANY LIMITED

Second Applicant

and

THE DISTRICT COURT OF NEW SOUTH WALES

First Respondent

THE CHIEF EXECUTIVE OFFICER OF CUSTOMS

Second Respondent

Application for special leave to appeal

TOOHEY J
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 FEBRUARY 1997, AT 10.51 AM

Copyright in the High Court of Australia

MR B.J. GROSS:   May it please the Court, I appear for the applicants.  (instructed by Martin Churchill)

MR P. ROBERTS:   If the Court pleases, I appear for the second respondent.  (instructed by the Australian Government Solicitor)

TOOHEY J:   The Deputy Registrar has certified in the following terms:

I have been informed by the Crown Solicitor, the solicitor for the first respondent in the above matter, that the first respondent does not wish to be represented at the hearing for special leave to appeal and will abide by any order of the Court save as to costs.

Yes, Mr Gross.

MR GROSS:   Your Honours, this case concerned the correct tariff rate for small commercial washer extractors with a spin basket and the outcome depended upon answering the question of what was the volume of the relevant cylindrical container into which dry linen could be put in that washer extractor.  The spin basket within the washer extractor had a capacity of about 72 litres; the outer cylinder which holds the washing water had a capacity of about 102 litres.  If the outer cylinder was the relevant cylinder the required calculation under the tariff concession order involved dividing by 10, giving a figure of 10.2 kilos per batch which meant that what is called under the TCO the dry linen capacity exceeded 10.  However, if the relevant spin drying basket was the relevant cylinder, the figure was smaller because it is an internal cylinder and the outcome was the tariff rate would be 15 per cent, rather than 2 per cent.

TOOHEY J:   Could you identify for us what you say went wrong in the course of these proceedings?

MR GROSS:   Your Honours, in the initial hearing before Judge Hosking which went to an outcome, the prosecutor had expressly and very clearly stated that his case was based on two elements without the need for further evidence which he would not be calling in any circumstances: first of all, in effect, the averments including averment 6; secondly, the argument that the Federal Court in dealing with the civil aspect of the dispute was binding on the parties, preventing the calling of contradictory evidence or the acceptance of opposing argument.  The prosecutor, having based himself upon those averments and that judgment, said he would not call evidence under any circumstances addressed to the factual components of the TCO.

The New South Wales Court of Appeal held that averment 6 was bad because it contained a proposition of law and held that the Federal Court result was not preclusive but merely had persuasive value.

GAUDRON J:   Do you not have to explain, before you get to that point, what was done before Judge Hosking by or on behalf of the defence?

MR GROSS:   No evidence was called directed to the factual components, either expert evidence or otherwise.  However, your Honour, that was obviously a forensic stance determined by reference to the prosecutor’s fixed stated position that he lived or died on the strength of his legal argument, based on the averments and the preclusive effect of the Full Federal Court.  So although there is a factual opportunity, when one has regard to the prosecutor’s statements, that opportunity was not availed of for fairly obvious reasons.  It related to how each party had announced it was to conduct its case.

Now, your Honours, when it came back, the prosecutor had an express statutory right to amend the averments.  The entitlement existed even though, in effect, the evidence of both parties had been closed.  The prosecutor amended, by consent, the averments so as to make a more precise allegation concerning the particular cylinder and its capacity, rather than make an allegation of law in words of the TCO. 

GAUDRON J:   And you consented to that?

MR GROSS:   That was consented to, yes.

GAUDRON J:   And would your consent have made any difference?  Was there a right to amend if you did not consent?

MR GROSS:   Section 251 is an entitlement to amend at any time.

GAUDRON J:   So your consent was irrelevant?

MR GROSS:   Yes.

TOOHEY J:   Do you say an entitlement to amend?

MR GROSS:   I am sorry, I should have section 251 before your Honours.  I am sorry to read it to your Honours but I have only one copy.

No objection shall be taken or allowed to any information.....and the Court shall at all times make any amendment necessary to determine the real question -

And it is the emphasis on “the Court shall at all times” and it has been held that that means that the magistrate does not really have a discretion.  He must do it.  What follows after that, of course, may be a different matter.

GAUDRON J:   Does that mean that Judge Hosking had to allow the amendment?

MR GROSS:   Yes, your Honour, and it has been conclusively held in other courts.  So that what really mattered was what occurred after that amendment was made.  Now, in our submission the applicants then applied for a short adjournment but, in the course of refusing that, the application then became one to reopen to call evidence. 

GAUDRON J:   What I do not understand is when it went back I take it it went back on the basis that what, everybody’s case was closed except the prosecutor’s?

MR GROSS:   Both cases were closed but the prosecutor had his statutory right to amend the averments and, your Honours, we accept that they gave us about a month’s notice that they were going to amend the averments in the manner indicate so as to make the changes which are referred to.  The relevant change was, if your Honours would go to the application book pages 150 and 151, the old averment 6 was as set out at 150 lines 27 and following, which is really an allegation about the washing machine, that is the total goods, and that was found to contain an allegation of law; “dry linen capacity” is a deemed statutory expression.  Then they amended to add instead 6(a), which is at the top of page 151, which is a description of the factual characteristics of the spin drying basket itself, thereby getting over the allegation of law problem in the averments.  But also, by virtue of the prima facie effect given to averments, entering into evidence and solving their problem.

Now, our submission comes down to this, that that having been done ‑ and of course it had to be allowed - the applicants should have been allowed to embark upon their defence to counteract the prima facie effect of the amended averment ‑ ‑ ‑

GAUDRON J:   Does your submission go so far as to say that in the circumstances you were denied natural justice?

MR GROSS:   Yes, denied procedural fairness.  They had changed their forensic position, we were entitled to change ours to meet what was, in fact, a case that had evidential content and, of course, had evidential content not just from the averment but also from what had been found to be the persuasive effect of the Federal Court judgment.  So that obviously the applicants, in defending the case, wanted to get into the ball park so far as making contribution in evidence.

So there were the three elements that really had to met:  one was the evidentiary impact of the amendment averment; the second was the persuasive impact of what was written in the Federal Court judgment; and thirdly, there was necessarily prejudice, in our submission, where the prosecutor had achieved a forensic somersault and taken unfair advantage of his position by going back on a previously stated fixed position as to what he would rely on.  Now, the point made against us was he only said he would not go into evidence, he would not call actual evidence directed to the ingredients of the calculation in the TCO - that is the tariff concession order.

TOOHEY J:   What is the evidentiary effect of the averment?  Is it prima facie or how is it couched?

MR GROSS:   Yes, your Honour, prima facie under section 255 of the Customs Act.  So that when we went to the Court of Appeal our position was that, in effect, he had no evidence upon which he could mount his arguments because the averments were bad and the Federal Court judgment, which was the text of what he relied upon, had neither binding effect nor ultimately persuasive effect.  But when we came back, of course, the change in position ‑ ‑ ‑

TOOHEY J:   Was it made clear to the court that the evidence sought to be adduced went directly to the averment in its amended form?

MR GROSS:   Yes, your Honour.  Now, I must say that the argument does not show an awful lot of clarity - I was not there - but it is evident what was sought to be called was expert evidence from persons in the industry, directed to the workings of the machine, and the relevant affidavit which I very briefly pointed to is summarised in our summary, an affidavit from Malcolm Edgar.  If your Honours go to page 157 where we have extracted it for your Honours, pages 157 to 158, he appears to have devoted a lifetime to washing machines or washing extractors ‑ ‑ ‑

GAUDRON J:   What is the difference between a washing machine and a washer extractor?

MR GROSS:   A washer extractor pulls the water out as part of the spinning process.  A washing machine agitates the pond of water with the washing in and when it stops agitating, you have got a pond full of washing.  An extractor is what we are all more used.

GAUDRON J:   It is a washing machine and a spin drier?

MR GROSS:   Yes, combined.  Now, your Honours, on the question of the dispute between the parties, there is really an extra 30 litres between the spin basket, which has a capacity of about 70 litres, and the total of 102 litres which is the outer perimeters of where it all goes.  That is obviously a space that can absorb things like underpants, handkerchiefs, single socks usually, and our submission is that the ‑ ‑ ‑

GAUDRON J:   So what we really need to do is get rid of that space in between.

MR GROSS:   Yes.  The decision under appeal gets rid of the space in between ‑ ‑ ‑

TOOHEY J:   I think you might be telling us more than we need to know.

MR GROSS:   Yes, your Honour, I was just solving a temporary difficulty.

TOOHEY J:   Really this arose out of a question as to how far the trial judge was alerted to the fact that the evidence sought to be adduced bore upon the amended averment.

MR GROSS:   Yes.  His Honour appeared to have foreclosed a lot of argument because he took the attitude that the case had gone too long and, in effect, there had been other opportunities but, of course, the earlier litigation was concerned about the preclusive effect of the Federal Court judgment which of course shuts out evidence anyway and, of course, was determined by the prosecutor’s original stated stance.

Could I finish by putting this, if I might.  The Court of Appeal judgment, in effect, having noted that the case before Judge Hosking had gone very long and there were numerous opportunities, treated the affidavit material as being of no consequence and there was really no reason said, there had been no procedural unfairness.  But, in our submission, the procedural fairness was obvious. 

When it comes to the question of the public interest in this case, can I just briefly adopt, your Honours, what we put in our summary of argument on the question at page 9 under the heading, “Part IV  Reasons why special leave should be granted”.  That is our best formulation of why this case raises issues of public importance.  Although the trial was a very lengthy factually complex case, the resolution of this matter as we would ask by this Court involves very simple questions of recurring public importance, namely ‑ ‑ ‑

TOOHEY J:   I am not sure about the public importance.  I took you to be putting the case on the basis of miscarriage of justice.

MR GROSS:   We would certainly put it on that basis, which is always a residual ground, but if I ‑ ‑ ‑

TOOHEY J:   It is not always a residual ground.  Sometimes it is the dominating ground.

MR GROSS:   We adopt that formulation, but we would submit there is the aspect in relation to the need to clarify the duties of prosecutors and of courts dealing with the capacity of prosecutors to amend averments after the close of the evidence.  Also, of course ‑ ‑ ‑

TOOHEY J:   That does not arise, does it, because you do not question the right of the prosecutor to amend the averment; it is what happens consequent upon the amendment that troubles you, troubles your client.

MR GROSS:   Yes.

TOOHEY J:   Mr Gross, the orders sought, as appear on page 167, are that the:

Judgment and orders of the Court of Appeal to be set aside;

But then goes on to ask that the charges be set aside and the applicants be acquitted.  Is there any footing upon which that sort of relief could be granted?

MR GROSS:   We put it on this basis that ‑ I am sorry, your Honour, when it was originally put I think the persuasive effect of the Federal Court judgment was not allowed for, therefore there is evidence and we accept that those orders are not appropriate.

TOOHEY J:   What orders are appropriate?

MR GROSS:   That the matter go back for a further fresh hearing in the District Court.

TOOHEY J:   What, from beginning to end?

MR GROSS:   Or, alternatively, back to Judge Hosking in order to enable the matter to be reopened.

GAUDRON J:   It would go back to Judge Hosking to hear and determine in accordance with law.

MR GROSS:   Yes, your Honour.

TOOHEY J:   Thank you.

MR GROSS:   If the Court pleases.

TOOHEY J:   Mr Roberts.

MR ROBERTS:   The averment that was relied on to prove that the washing machines have the requisite dry linen capacity, or less than the requisite dry linen capacity, is reproduced in my outline at paragraph 6.  It was taken by the learned judge to be sufficient for a finding of fact.

GAUDRON J:   But without it, there must have been an acquittal on the view of the Full Court.

MR ROBERTS:   No, with respect, that is not necessarily so.  The view of the Court of Criminal Appeal on the stated case was, as I read it, at least even without the averment, we still could have succeeded in any event.

TOOHEY J:   Could have or must have?

MR ROBERTS:   Could have.

GAUDRON J:   With evidence.

McHUGH J:   No, with the judgment.

MR ROBERTS:   No, with the judgment, that is so.

GAUDRON J:   That must be wrongly, surely.  A judgment is never evidence.

MR ROBERTS:   That is what the Court of Criminal Appeal said.

GAUDRON J:   They must be wrong in that.

MR ROBERTS:   They may have been wrong in relation to this being an averment of law as well, but that is what the Court of Criminal Appeal said at least, that this was an averment of law - though minds may well differ in relation to that.  All we did when we changed the averment to the form which the Court of Criminal Appeal said was the way that the averment should have been framed, was to put us back in the position we all thought we were to start off with.  The decision not to call evidence that was made by the defence must have been made in the expectation, at least, that there would be a holding in the case before Judge Hosking that this averment was sufficient to find factually ‑ ‑ ‑

GAUDRON J:   But was not the issue really at the beginning, first of all in the Magistrates Court and thereafter before Judge Hosking, whether or not the defendants could call evidence contrary to the Federal Court decision?

MR ROBERTS:   It was an issue.  It was not an issue in the Local Court because it was conceded that the Federal Court judgments had preclusive effect.  It was an issue in the District Court but his Honour Judge Hosking did not make a ruling that they could not call evidence ‑ ‑ ‑

GAUDRON J:   But he indicated he was going to follow the judgment.

MR ROBERTS:   As a matter of law, which was open to him to do and he did.  But there were not ‑ ‑ ‑

GAUDRON J:   But it was not open to him to follow it as a matter of law in any relevant sense, was it?  It was relevant to - the facts still remained in issue.  If the facts were the same as those found by the Federal Court, then that was one thing.  It could not be applied as a matter of law until the facts were determined to be the same.

MR ROBERTS:   Yes.  But we relied on this as a fact.  The defendant must have known this ‑ ‑ ‑

GAUDRON J:   You had not relied on that fact before.

MR ROBERTS:   Yes, we had.  We always relied on the averments.  It says so in the book.  The finding that his Honour made in relation to the requisite capacity of the machine was based on the averment.  His Honour says so.

GAUDRON J:   Let us start at the beginning.  If you made an averment in that form today, if you recommenced and with an averment in that form the defendants would surely be able to call evidence to answer the charge.

MR ROBERTS:   Yes.  They were never ever precluded; any averment ‑ ‑ ‑

GAUDRON J:   Yes, but your argument was, up until a certain point, that they were precluded by the Federal Court decision from calling evidence to answer the charge.

MR ROBERTS:   That was our argument, but it was not accepted by the District Court judge.

GAUDRON J:   It was not accepted in the Court of Appeal.

MR ROBERTS:   It was not accepted by the District Court judge.

GAUDRON J:   But he said something very similar, did he not?

MR ROBERTS:   No, his Honour did not preclude them from calling evidence.  It was a choice that they made.  There was nothing to prevent him - indeed, when the matter went back ‑ ‑ ‑

GAUDRON J:   Can you take us to exactly what happened before the District Court judge.

MR ROBERTS:   On which occasion, your Honour?

GAUDRON J:   At the first occasion, because I cannot for the life of me see why there would be any point in a stated case, other than to determine that evidence could be called.

MR ROBERTS:   Your Honour has what the questions were in the stated case, and it was not an issue in the stated case that they were precluded from calling evidence.

McHUGH J:   They called no evidence and the judge convicted them beyond reasonable doubt.

MR ROBERTS:   That is so.

GAUDRON J:   Now, what happened immediately before they called no evidence?

MR ROBERTS:   They did call evidence.  They called exhibit 1.  They did not call any oral evidence.  They tendered an exhibit and as I have said in the submissions, it is difficult to see how it was relevant to anything but, if it was relevant to anything, it was relevant to the argument.

GAUDRON J:   What exhibit?

MR ROBERTS:   They argued for two days that the judgments were not a preclusive effect.

GAUDRON J:   Yes, and what happened on that argument?

MR ROBERTS:   So there was no question about them being under some misapprehension that they were.

McHUGH J:   What was exhibit 1?  Did they tender - did they open?  They went into evidence?

MR ROBERTS:   They went to evidence.

McHUGH J:   What was exhibit 1?

MR ROBERTS:   It was a document from the Customs Department in relation to the tariff concession order, a file note.  Why it was relevant I am not sure, but it was allowed into evidence.   They were not precluded from calling it, which appears to be some argument that the tariff concession order does not really relate to these sorts of washing machines.

McHUGH J:   That explains why Mr Healey spoke about wanting to reopen his case.

MR ROBERTS:   That is so.  They went into evidence and argued for two days afterwards ‑ ‑ ‑

GAUDRON J:   But no evidence contrary to the findings of the Federal Court as to capacity.

MR ROBERTS:   This document, if it went to anything ‑ ‑ ‑

GAUDRON J:   As to capacity.

MR ROBERTS:   But it cannot be said that they thought they were precluded from arguing because they would not have argued for two days that the Federal Court decision was wrong for various reasons.  If they thought that they were precluded, they could not argue it either.  They argued for two days as a matter of law and took their course as a matter of fact for not calling evidence and that was their own decision.  Nobody precluded them from calling evidence.  Indeed, when the matter went back to the District Court ‑ ‑ ‑

GAUDRON J:   But I do not understand that.  I simply do not, because in the Court of Appeal the major issue seems to have been about the preclusive ‑ by which I understand precluding the defendants from calling evidence - effect of the Federal Court decision.

MR ROBERTS:   Your Honours, we argued in the Court of Criminal Appeal that the question did not arise at all but it was dealt with in the Court of Criminal Appeal and, as your Honours will see in the President’s judgment, the President said if ever his Honour had been inclined ‑ ‑ ‑

TOOHEY J:   What page are you taking us to?

MR ROBERTS:   In the application book it is at page 92 point 20 ‑ ‑ ‑

GAUDRON J:   And of course you look at ‑ ‑ ‑

MR ROBERTS:   Could I start at lines 11 or 12:

It appears that Hosking DCJ took this very course.  The respondent has argued that at no stage did Hosking DCJ rule on its submission that the Federal Court decisions were of preclusive effect.  The transcript of his Honour’s reasons for finding a prima facie case and reasons for decision appear to support this contention.  However, this Court need not concern itself with discovering the way that Hosking DCJ approached the relevance of the Federal Court decisions.  It is sufficient that this Court answers no to question (b) stated for our consideration.  When the case is returned to Hosking DCJ, he will be required, before concluding his part in the proceedings, to reconsider his findings.....His Honour will be entitled to review his approach to the Federal Court decisions in the light of the conclusion which I would now state that they should be regarded as merely persuasive, and no preclusive.  If ever his Honour had been inclined to a different view (which seems extremely doubtful) the holding of this Court will dispel it and he can act accordingly.

GAUDRON J:   Now, where will I find the questions?

McHUGH J:   Page 13.

MR ROBERTS:   The relevant one is 18(b), your Honour.

GAUDRON J:   Yes.  “I erred in following the decisions”, now what did that mean in context?

MR ROBERTS:   It did not mean that his Honour found as a fact that these washing machines had the requisite dry linen capacity because of the judgment because, as your Honours will see, his Honour’s finding of fact at page 11 of the application book, finding 11(d), was based on the averment.  Could I say this:  when the matter went back to the District Court, it had never been put ‑ ‑ ‑

GAUDRON J:   What would have happened if, after Judge Hosking found a prima facie case, Mr Healey had then proceeded to call witnesses?

MR ROBERTS:   Mr Branson was the counsel, I think, at that stage, or Mr Burbidge.  There have been a variety of counsel.

GAUDRON J:   If it was then indicated that there was an intention to call evidence.

MR ROBERTS:   That is what we anticipated; it did not happen. 

GAUDRON J:   That was what you anticipated, but had Judge Hosking said anything in the course of giving his reasons on case to answer?

MR ROBERTS:   About calling evidence?

GAUDRON J:   To indicate that he thought the matter was concluded by the Federal Court decision.

MR ROBERTS:   Not in our submission, nothing whatsoever.

McHUGH J:   What is the explanation - what do you say about, at page 143 paragraph 27 of the affidavit in support?

There was then lengthy argument over several days.....that the Federal Court judgment gave rise to a legally preclusive effect.  During this argument, Hosking DCJ expressed the view that the Federal Court judgment had a legally preclusive effect, preventing the Applicants ‑

and it says:

The Applicants then called no further evidence ‑ ‑ ‑

MR ROBERTS:   It is just incorrect.

McHUGH J:   That is what I would have thought.

MR ROBERTS:   I put on the judge’s prima facie decision as an annexure, which your Honours have.  There is absolutely nothing in the transcript or in the judgments to support that statement, nor in the Court of Criminal Appeal, and then could I also point what happened after the matter went back to Judge Hosking after the Court of Criminal Appeal, which I have extracted in these submissions, the exchange at paragraph 12 which is in the application book at page 27 - this is after the Court of Criminal Appeal had dealt with the matter when this alleged denial of natural justice occurred ‑ where Mr Healey at line 35 said:

Can I just say this from the very outset the appellants were denied putting expert evidence before the Court as to -

and his Honour, in a quizzical tone says:

HIS HONOUR:   Before me?

HEALEY:   No, no, before the Local Court, your Honour.

It has never been put to Judge Hosking, apart from in this exchange where it is not put at all, that he has precluded people from calling evidence.  Then there is a lengthy argument after this about what he would have done if Mr Pearson were called and his Honour said, “Look, this is a criminal case” and his Honour thought it was an application to call Mr Pearson, which it was, apparently, so we read on, but it is not saying here, it is not asserted here that there was a ruling which precluded them from calling evidence.  It was never put to Judge Hosking and Judge Hosking has never so ruled or indicated in his judgments.

GAUDRON J:   That is an interesting proposition but if they were standing their ground on the averment as well, namely that the averment did not disclose facts that would justify a conviction, the situation had then changed.  Your averment had changed.  You see, there were two aspects to the defence claim:  one, that the averment did not justify conviction; two, that the Federal Court decision did not preclude them from calling evidence, which had been the consequence in the Magistrates Court.  That seems to have been the point of bringing the matter up to the District Court, to get a judgment on that. 

MR ROBERTS:   Your Honours, if the defendants stood their ground on the fact, “We are calling no evidence because we know that the averment as framed is wrong”, they must have known that the averment could have been amended.

GAUDRON J:   But it had not been amended.

MR ROBERTS:   It was eventually, your Honours.

GAUDRON J:   It was eventually, but you do not conduct your case on the basis of what might happen.  Unless practice has changed dramatically from when I was at the Bar, you conduct your case on the basis of what is put against you, not what might be put against you at the end of the day.  If you were to do that, there would be no end to litigation.

MR ROBERTS:   What your Honour is in effect putting to me is the forensic decision was made by the defendants to call no evidence ‑ ‑ ‑

GAUDRON J:   On the basis of your averment.

MR ROBERTS:   On the basis of our averment and knowing that we could, at any stage in the proceedings ‑ ‑ ‑

GAUDRON J:   But you had not. 

MR ROBERTS:   We did not have to at that stage because it was ruled ‑ ‑ ‑

GAUDRON J:   You did have to because it was wrong....Court of Appeal.

MR ROBERTS:   Eventually we did amend it. 

GAUDRON J:   Yes.

MR ROBERTS:   And then the defendant had then changed its position and said we wish to call some evidence.

GAUDRON J:   What you are saying is that the defendant should have conducted his case on the basis that he would ultimately succeed in the Court of Appeal on the averment.

MR ROBERTS:   What I am putting to this Court is that there is no special leave point whatsoever that arises here, partly because nobody was denied any procedural fairness because the defendant took its course, advisedly ‑ ‑ ‑

GAUDRON J:   On the basis of an averment as it then stood.

MR ROBERTS:   Another point which I have not yet referred to is that the evidence which they wished to call was, apart from four paragraphs, held to be, by the Court of Appeal, wholly irrelevant.  It was objected to on the basis it was vexatious, irrelevant and a number of other grounds.  It was clearly not admissible in form or in content and, in our submission, the evidence such as it was that was sought to be led could have made no possible difference to this case.  What was left of an affidavit that remained here was somebody saying, “I say that this machine is a washer extractor”, which had absolutely nothing to do with anything.  The whole point of the case was - the words “washer extractor” appeared in a tariff concession order; it had nothing to do with the tariff.  In order to fall within the tariff concession order you had to fall within the tariff to start off with, which was dealing with machines, laundry machines and washing machines.  They have used the word in the tariff, a “washer extractor”.  Apparently washing machines in the dim distant past did not have that function, but it could have made no difference whatsoever, if this evidence had been called, to the outcome of this case.  But that was what was left of the evidence after it went to the Court of Appeal.

Now, your Honours, the position that was arrived at here was not because of any forensic jump by the prosecution who did not change their case at all, the only change in the prosecution case was a change in the averment which was caused by the Court of Criminal Appeal saying, in effect, that we averred a matter of law and not fact, which we previously, and the judge previously, had thought we had not done.  He thought it was a matter of fact, as we did.

GAUDRON J:   But did the defendants claim that you had, that the averment was no good?

MR ROBERTS:   I imagine they did.  Most things were argued during the course of two days, including the fact that the judgment was not preclusive.  So they did not change their position.  They were arguing all the way through that it was not preclusive, chose not to call any evidence, and then

sought to reopen the case after we had amended the averment to accord with what the Court of Criminal Appeal said and did it by consent.  They did not consent to the other averment.  That was objected to.  So we have a submission that the judge had to allow the averment, but they objected to the second averment and that was not allowed.  We tried to do it in two parts to make doubly sure, but only the first part was allowed.  It was allowed by consent.

Now, if they thought we were changing our position, they could have argued to the contrary and said, “You cannot allow that.  That is a denial of natural justice.  We fought our case on base X, and now what you are doing is a somersault, in effect.”  Never ever put.  Now, in those circumstances, your Honours, we would say that it is quite absurd to say there was a denial of justice and the Court of Appeal decision, irrespective of section 122 of the Justices Act, which I mentioned later on which precludes these sorts of matters from going to the Supreme Court, we would respectfully submit that this Court should not permit special leave in the circumstances of this case.  If the Court pleases.

TOOHEY J:   Thank you, Mr Roberts.  Mr Gross, anything by way of reply?

MR GROSS:   Very briefly, your Honours.  I think one of your Honours asked about the exhibit 1 that went in in the defence case.  That was a customs document, but it went not to show that the entry was correct but rather it went to the question of the mental element or negligence aspect of the charges.  It did not enter into the factual field of the type covered by the averments.

The second matter is that the submissions by my learned friend very belatedly, although it is in their argument as well, come back to section 146 of the Justices Act on the basis that that provision in the Justices Act holds that:

No conviction or order of a Justice....., or adjudication upon appeal of the District Court, shall be removed by any order into the Supreme Court.

And it has been held a number of times by the Court of Appeal and similar courts that that has no application when there is procedural fairness.  For our own part, we do not recall the point being agitated in the Court of Appeal, in any event, but there could only have been one outcome.  That completes my submissions, your Honours.

TOOHEY J:   The Court will adjourn for a few minutes just to consider the course the Court will take.

AT 11.29 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.35 AM:

TOOHEY J:   What I am about to say represents the conclusion of the majority of the Court.  Having regard to the course the proceedings took in the District Court, we are not persuaded that there was any miscarriage of justice in this case.  There is no other consideration warranting a grant of special leave to appeal.  Accordingly, the application is refused.

MR ROBERTS:   We ask for costs, your Honour.

TOOHEY J:   What do you say about the question of costs, Mr Gross?

MR GROSS:   Your Honour, in our written argument we argue that a costs order should not be made on the basis that the prosecution’s reversal of its expressly stated position as to how its case was to be conducted and opposition to the accused calling evidence in response to such reversal were harsh and improper and ‑ ‑ ‑

TOOHEY J:   Those are discretionary matters.  I take it you are not putting it on the footing that this is not a case in which costs may not be ordered.

MR GROSS:   No, nothing on that basis, your Honour.

GAUDRON J:   You are not asserting it is a criminal case in which costs are usually not awarded.

MR GROSS:   We would assert that is a discretionary ground, in conjunction with the other matter.

TOOHEY J:   The application is refused with costs.

AT 11.37 AM THE MATTER WAS CONCLUDED