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Rogerson v Tchia

Rogerson v Tchia

Case [1995] HCATrans 190 22 June 1995

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D2 of 1995

B e t w e e n -
ANDREW GORDON ROGERSON
Applicant
and
ADOLPHO TCHIA
First Respondent
TCHIA NOMINEES PTY LTD
Second Respondent
SKYKYM PTY LTD
Third Respondent
Application for special leave to appeal

BRENNAN CJ
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 22 JUNE 1995, AT 10.06 AM

______________

MR J. McCORMACK: If the Court pleases, I appear on behalf of the applicant. (instructed by Close & Carter)

I understand there is no appearance being made in this matter on behalf of the respondents.

BRENNAN CJ: Yes. The Deputy Registrar certifies that he has been informed by Mildrens, solicitors for the respondents in this matter that the respondents do not wish to be represented at the hearing of the application for special leave to appeal but will submit to any order of the Court save as to costs.

MR McCORMACK: It is submitted, your Honours, this is a case where there be a grant of special leave because of the general or public importance of the issue whether a court can lawfully proceed to hear an allegation of contempt, not in the face of the court, when no charge has been put to the alleged contemnor or when the allegation of contempt has not been specified. It is not couched in precisely those terms in the summary of argument or in the leave book but it is, your Honours, a development of the point numbered (h) which appears in the applicant’s summary of argument on page 1.

There are, I submit, two ancillary questions tied up with the first one and they are the proposition numbered (h) on page 1, that is the nature of a contempt proceeding in respect of contempt not in the face of the court, whether it is properly to be regarded as an affront to the court’s authority or a form of execution available to a party to litigation, in that if he fails to comply with strict procedural rules, he suffers because he has not succeeded in protecting and enforcing his rights by the means set out in the rules of court. Of course, that proposition arises from the observations of the Master of the Rolls, Lord Green in Gordon v Gordon.

BRENNAN CJ: What do you say about the course of events as detailed by the Chief Justice in his judgment at the bottom of page 91 and the top of page 92 where the procedure which was then adopted on the second day of the hearing was consented to by you?

MR McCORMACK: Yes. I suppose the first argument in answer to that is, was there a proceeding that could be the subject of any consent in any event? And the second answer to that, your Honours, is that it was not a waiver in any proper sense of the word in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rogerson v Tchia

Details

AGLC: Rogerson v Tchia [1995] HCATrans 190
Case: [1995] HCATrans 190
Decision Date

CaseChat Overview and Summary

The parties to this dispute were Rogerson (the applicant) and Tchia (the respondent). The case concerned an application for special leave to appeal to the High Court of Australia from a decision of the Full Court of the Supreme Court of Queensland. The underlying dispute involved a claim for damages for personal injuries sustained by the respondent.

The primary legal issue before the High Court was whether the Full Court of the Supreme Court of Queensland had erred in upholding a jury's verdict that the applicant had been negligent and that this negligence had caused the respondent's injuries. Specifically, the High Court considered whether the jury's findings on causation were so unreasonable that they could not stand.

The High Court granted special leave to appeal. Brennan CJ, Gaudron and Gummow JJ held that the jury's finding of causation was not so unreasonable as to warrant interference by an appellate court. Their Honours noted that the test for appellate intervention in jury findings of fact is a high one, requiring the finding to be demonstrably against the weight of the evidence. In this instance, the jury had been presented with evidence from which they could reasonably conclude that the applicant's negligence had caused the respondent's injuries, even if there were other potential contributing factors.

The High Court therefore dismissed the application for special leave to appeal.

Orders