Peck v Greater Taree City Council S390/2002

[2002] HCATrans 663

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S390 of 2002

B e t w e e n -

CRAIG MICHAEL PECK

Applicant

and

GREATER TAREE CITY COUNCIL

Respondent

Summons for expedition

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 17 DECEMBER 2002, AT 10.01 AM

Copyright in the High Court of Australia

MS S. NORTON, SC:   If the Court pleases, I appear for the applicant with my learned friend, MR D.M. WILSON.  (instructed by Stacks - The Law Firm)

MR C.G. GEE, QC:   May it please your Honour, I appear with my learned friend, MR M.J. DARKE, for the respondent to this application.  (instructed by Phillips Fox)

HIS HONOUR:   Yes, Ms Norton.

MS NORTON:   Thank you, your Honour.  There was an amended summons filed on 13 December.  Does your Honour have that?

HIS HONOUR:   Yes, I have that, yes.

MS NORTON:   And it is supported by an affidavit of David Maurice Stack, sworn 28 November.

HIS HONOUR:   Yes, I have that.  It can be taken as read.

MS NORTON:   Which was filed on the 29th.

HIS HONOUR:   Have you any objections to that?

MR GEE:   I have not, your Honour.

MS NORTON:   There have been submissions filed in support of the motion on the 12th.  Does your Honour have those?

HIS HONOUR:   Yes, I have those.

MS NORTON:   The application for leave to appeal was filed on 30 October and the applicant’s summary of argument was filed on 27 November.  I do not know if your Honour has those.

HIS HONOUR:   Yes, I have certainly – I do not know what the date is.  You are talking about the ‑ ‑ ‑

MS NORTON:   In the application for ‑ ‑ ‑

HIS HONOUR:   In the special leave application.

MS NORTON:   ‑ ‑ ‑ special leave application.

HIS HONOUR:   Yes, I have a copy of that.  I also have your submissions.

MS NORTON:   That is the evidence and the written submissions in support.

HIS HONOUR:   Yes.  Yes, well, what have you to say in support of your submissions?

MS NORTON:   Thank you, your Honour.  The basis for the application is simply that it appeared that the matter raises similar issues with that raised in the matter of Suvaal which is dealt with in the written submissions, and inquiries of the Registry at the Court made it clear that if the two were to be heard together something would have to be done to speed up this application and hence the application for expedition was filed.  There is nothing peculiar about this particular applicant that would place him in any disadvantage compared to anybody else who is waiting for a leave application to come on in this Court.

HIS HONOUR:   Well, it seems to me that there are two formidable problems in your way.  The first is that leave was granted in Suvaal in the exercise of what is often called “the visitorial jurisdiction” of the Court.  It raised a simple question of fact and, indeed, counsel who appeared for Suvaal, Mr Reynolds, conceded that it was a “factual error” case.  At the moment, I cannot see how a decision in this case has any bearing on Suvaal or how a decision in Suvaal has any bearing on the other.

The other problem is a more practical problem.  It seems to me if expedition were granted it would have one of two results:  either it would have no practical effect or it would result in this Court hearing the application as if it was an appeal.  If the application were treated as an ordinary special leave application all that could happen, if you got expedition, was that your application would be granted or refused.  An appeal would be heard at a later time.  It does not seem to me to have any practical benefits.  If, on the other hand, you were given the right to argue your special leave application as if it was an appeal you would be, effectively, bypassing the special leave procedure, and that is something that this Court ought to set its face against, it seems to me.

MS NORTON:   Yes, your Honour, I appreciate those arguments.  There is little I can say against them other than it seemed to those advising the applicant that if the matter in Suvaal was dealt with in the visitorial jurisdiction and then his application for special leave came on, he would be at a double disadvantage because the Court would have recently considered a similar point and perhaps be ‑ ‑ ‑

HIS HONOUR:   Well, he might but we have five or six cases under reserve judgment at the moment and it does not seem to me that your

application, apart from the fact that both cases involve a Court of Appeal setting aside findings of a causal connection between duty and damage, they have anything in common.

MS NORTON:   That is what they have in common.  One of them is about a road and the other a skateboard park.  They are against councils.

HIS HONOUR:   I know.  They are just questions of fact.

MS NORTON:   They are just simply questions of fact.  The error of importance for the practitioners in New South Wales, as it were, is when is it appropriate for the Court of Appeal to overturn these types of decisions?

HIS HONOUR:   The answer is when they are wrong.

MS NORTON:   Yes, I have read your Honour’s judgment about the number of applications for special leave and the problems with application for expeditions but it seemed that the best hope for this particular appeal was if it could be linked up with the Suvaal appeal.

HIS HONOUR:   I am sure.  It is a great tactical move but ‑ ‑ ‑

MS NORTON:   If the Court cannot make the order, then the Court cannot make the order.

HIS HONOUR:   Yes.  Well, thank you, Ms Norton.  I do not need to hear you, Mr Gee.

The applicant seeks the expedition of a special leave application pending in the Court.  He asks that it be heard at the same time as the Court hears the pending appeal in Suvaal v Cessnock City Council.  The applicant contends that his special leave application:

“raises substantially the same point of law to be determined by the High Court in Suvaal, namely, whether it is mere conjecture for a trial judge to prefer one inference over another when the former is supported by other evidence, being, in both Suvaal and the instant case, the opinion of an expert.”

However, the appeal in Suvaal does not raise any question of law.  Special leave was granted in that case in the exercise of what is often called “the visitorial jurisdiction” of the Court.  Suvaal simply involves a question of fact that the Court thought was so arguably erroneous that it amounted to a miscarriage of justice in the particular case.  Indeed, on the special leave hearing in Suvaal, counsel for Suvaal accepted that the case was a “factual error” case.

The only similarities between the present case and Suvaal is that each is concerned with a reversal by the Court of Appeal of New South Wales of a finding that there was a causal connection between breach of duty and the damage suffered by the plaintiff.  Each case turns on its own facts.  A decision on one case, so far as I can see, has no relevance to or relationship with the other case.  A decision in one case will say nothing as to what should be the decision in the other case.  In my opinion, there is no ground for expediting the present special leave application so as to have it heard simultaneously with or immediately after the appeal in Suvaal.

Moreover, if expedition were granted either it would have no practical effect or it would result in this Court hearing the application as if it were an appeal.  If the application were treated as an ordinary special leave application with the time limits imposed on such an application, all that would be decided on the expedited hearing was whether the application should be granted or refused.  The appeal would have to be heard at a later date.

If, on the other hand, the application were heard as if it were an appeal, the applicant would have effectively bypassed the special leave procedures of the Court.  Given the ever‑increasing workload of this Court, it must, in my view, set its face against any attempt to bypass the special leave procedure.

There is no other ground upon which the present application could be expedited.  Accordingly, the application must be dismissed with costs.  I certify for counsel.

MS NORTON:   If the Court pleases.

HIS HONOUR:   Adjourn the Court.

AT 10.10 AM THE MATTER WAS CONCLUDED