Road and Traffic Authority v Cremona

HIGH COURT OF AUSTRALIA

KIRBY J

ROADS AND TRAFFIC AUTHORITY   APPLICANT

AND

MINNA MAARIT CREMONA  RESPONDENT

Roads and Traffic Authority v Cremona
[2002] HCA 38
19 August 2002
S6/2002

ORDER

1.   The affidavits of Messrs Rossetto and Power and paragraphs 16 to 20 of the affidavit of Mr Rodney Buckley rejected.

2.   The applicant to pay half of the respondent's costs of the application unless special leave to appeal is refused in which case the applicant must pay the respondent's costs.

3.   Certify for the attendance of counsel.

Representation:

A Porthouse for the applicant (instructed by Crown Solicitor for the State of New South Wales)

B M Toomey QC with M A Kumar for the respondent (instructed by Riley Gray-Spencer)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

1. KIRBY J.   The application before the Court relates to three affidavits that have been filed by the Roads and Traffic Authority ("the applicant").  The affidavits have been filed in support of an application by the applicant for special leave to appeal to this Court from a judgment of the Court of Appeal of the Supreme Court of New South Wales.  The application arises out of a decision of the Court of Appeal concerning the calculation of superannuation‑related losses.  The application for special leave will, in due course, come on for hearing before a panel of this Court.  It will be determined on the record of the evidence and other materials adduced in the Court below.

   Affidavits in special leave hearings

2. This Court has repeatedly stated that, for the purpose of the disposition of appeals, it will not receive fresh evidence beyond the record of the courts below[1].  I have disagreed with this view[2]; but it is the clear authority of the Court and must be obeyed. 

   [1]See Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 109-110; Stuart v The Queen (1959) 101 CLR 1 at 4‑5; Mickelberg v The Queen (1989) 167 CLR 259 at 270-271; Eastman v The Queen (2000) 203 CLR 1 at 23‑26 [67]‑[78], 32‑41 [103]‑[133], 59‑64 [181]‑[193].

   [2]Eastman v The Queen (2000) 203 CLR 1 at 76-93 [232]-[276].

3. Notwithstanding the rule, this Court has permitted applicants for special leave, or those opposing the grant of special leave, to place before the Court evidence which tends to show that the issue for decision in this Court is, or is not, an important one.  Indeed, if the demonstration of the significance of an issue in a special leave application requires the proof of facts, the Court has made it plain that such facts should be proved by affidavit and not stated in the course of oral argument from the Bar table[3].  This procedure gives a party that wishes to contest the facts the chance to test them or to rebut them with evidence of its own.

   [3]Deputy Commissioner of Taxation (Cth) v Woodhams High Court of Australia,…