State of WA v Tipperary Developments Pty Ltd & Anor

[2004] HCATrans 259

[2004] HCATrans 259

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P15 of 2004

B e t w e e n -

STATE OF WESTERN AUSTRALIA

Applicant

and

TIPPERARY DEVELOPMENTS PTY LTD

First Respondent

WARREN PERRY ANDERSON

Second Respondent

Application for expedition

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON THURSDAY, 5 AUGUST 2004, AT 5.43 PM

Copyright in the High Court of Australia

MR K.M. PETTIT, SC:   If it please, your Honour, I appear with MS D.H. CAREY for the applicant.  (instructed by Crown Solicitor’s Office Western Australia)

MR D.H. SOLOMON:   If it please the Court, I appear for the respondent.  (instructed by Solomon Brothers)

HIS HONOUR:   Now what is your attitude to this application, Mr Solomon?

MR SOLOMON:   Our position, your Honour, is this.  We consent to the orders sought, but we do so on a completely different basis or different reasons from those of the applicant, although our reasons are that we have trial dates for this matter in November of this year in the Supreme Court, and we do not wish anything to occur which may prejudice those trial dates. 

We do not believe the application for special leave has substantial prospects, and I have been served with some submissions dated yesterday which I wish to disassociate myself from consenting to some of the background there.  I do not agree with it, but our position is simply this, we are prepared to consent to the orders, we are prepared to consent further to the orders sought to have the special leave application heard in another city, so long as it can be heard before our trial dates, because we wish to have the trial proceed without delay in November.

HIS HONOUR:   I understand.  I just wanted to know, but it is a matter for this Court whether it grants expedition in matters, whether the parties agree or not, Mr Solomon.  I just wanted to know.

MR SOLOMON:   Thank you, your Honour.

HIS HONOUR:   Yes, Mr Pettit.

MR PETTIT:   Thank you, your Honour.  The submissions which we forwarded yesterday set out almost all that I want to say, your Honour, but there is another matter which I should address, which may be and we say they should be of considerable significance.  You will see in our outline of submissions ‑ ‑ ‑

HIS HONOUR:   Well, I do not think they are.  You are going to refer to the matters of Hodder and Pembroke, are you?

MR PETTIT:   Yes, your Honour.

HIS HONOUR:   Apart from the fact that they both deal with discretionary judgments, there does not seem to me to be any real connection between the cases.  I mean in Hodder there is a fairly lengthy judgment and reference to authorities, and it is possible, I do not say any more than that, that a court might think that it gives rise to sufficient statements of principle that would attract the special leave jurisdiction.  But the judgment in your case, it just does not strike me as a suitable vehicle.  I mean, the Court seems to have said, in a very compressed judgment, the Master applied the right principles, he has relied on these various matters, we do not agree with him.  You say by inference they applied Birkett and so on.  A more unsuitable vehicle for a grant of special leave would be difficult to imagine.

MR PETTIT:   Your Honour, can I take those one at a time?

HIS HONOUR:   Yes.

MR PETTIT:   Firstly, the proposition, with respect, your Honour, that the two applications, one by Hodder and the other by ourselves, lack sufficient similarity – first of all, both complain that House v The King was not applied.  In our case, we say it was not even referred to.  The principles were not articulated, and it is certainly ‑ ‑ ‑

HIS HONOUR:   You cannot expect Full Courts to refer to House v The King every day.  Any appellate judge knows House v The King backwards; they cite it every other day.  What Justice Kitto said in Australian Coal and Shale applies, that even if you cannot find any error, nevertheless, the result may be such.  This is a fact case.  I have read your submissions and I have studied the matter.  The prospects of anybody getting expedition in a special leave application these days are very remote.

There is a delay of 17 months between filing special leave applications in Perth and a hearing.  Priority is everything, and it is going to need a real case, a strong case, for somebody to jump over all those other applicants, many of whom are in custody.  I have referred to these sorts of matters on a number of occasions, including the SDN Children’s Services Case.  The only thing I thought you might have going for you was that if Hodder was taken on – and it is going to be heard, I think, on 25 October, or is likely to be – you might be able to link your case up with it, but I really cannot see how you can link it up.

MR PETTIT:   Your Honour, can I address you on that score?

HIS HONOUR:   Yes.

MR PETTIT:   Apart from House v The King which, your Honour, with great respect we say, although it is second nature, or ought to be, was not applied in either case and both applicants make that complaint – leaving that aside ‑ ‑ ‑

HIS HONOUR:   That is not a special leave point.  Where is the special leave point in your case?

MR PETTIT:   Your Honour, the special leave comes from the fact that we have collected for the Court some 14 or 15 cases, spanning the last 10 years, in which it is clear that House v The King is not applied in these sorts of cases by the Full Court.  They are appended to the submissions for application for special leave, I think, as appendix B, and it is quite a significant and startling list, your Honour.

In fact, the oddity is that in our submissions we said that our researches since 1994 had found but one case in which the principle of House v The King had been articulated.  That happens to be the Hodder Case, and we said of it, although the principle was articulated in that case, it was not applied and not referred to by the judge – who was his Honour Justice Hasluck – in a manner which led one to believe the court felt bound by House v The King.  That is the special leave point, your Honour.  There is not just that there were ‑ ‑ ‑

HIS HONOUR:   Well, that does not strike me as a special leave point.  You have to show that there is some error in your judgment.  What does it matter if the court has not applied House in other cases?  I mean, your case stands or falls on its own.  You cannot attach ‑ ‑ ‑

MR PETTIT:   That is true in the ultimate, your Honour.  Of course, that is true, with respect.  But in this case the error and the inferences to be drawn about the manner in which the court in our case came to its conclusion must be informed by the 10 year practice.

HIS HONOUR:   Why?  This is a novel proposition, that you should construe judgments by reference to what other judges have done in other cases.  What, is there some institutional view?  Is that the argument? 

MR PETTIT:   No, your Honour, but if we are allowed to make the submission on our application, it will be that the seeds of the error were set in 1994 in the case which preceded Lewandowski where the court examined whether or not dismissals for want of prosecution were interlocutory, and whether or not special leave was required and decided that it was not.  Since that date, the course of events in the Supreme Court has apparently been, and I admit, your Honour, this is an inference, that House v The King is supplanted by that particular finding.

HIS HONOUR:   Well ‑ ‑ ‑

MR PETTIT:   Your Honour, with great respect, we would say that is a ground of special leave.

HIS HONOUR:   It is certainly novel.

MR PETTIT:   Yes, your Honour, it is a novel situation.  Can I say also that the ‑ ‑ ‑

HIS HONOUR:   But let us look at what was done in your case.  At page 42 of the application book the court set out that the Master had relied on Ulowski and described the five paramount matters to be considered, and the court then examined the Master’s reasons, said he was wrong in some of them and then made a judgment about the matter, which they had to make a judgment.  They may be right or they may be hopelessly wrong, but how is this special leave application?

MR PETTIT:   Your Honour, the special leave application comes in at the point where their Honours say that the Master’s error was not in applying the law – sorry, that the Master did not err in the principles, but erred in the application of the authorities, their Honours say, and by the authorities they mean those set out at page 42 of the book, which includes the principal English case, Birkett v James, along with the principal Australian case, which is, from our perspective at least, Ulowski v Miller, which cases are completely inconsistent one with the other, your Honour, as ‑ ‑ ‑

HIS HONOUR:   Well, the Master said that the parties agreed that the principles are to be found in these cases, and he sets them out.

MR PETTIT:   Your Honour, with great respect, that is simply not so, and that is something that we would want to argue.  The history of the development of the law on this certainly includes those cases, but before the Full Court, we made it plain, repeatedly plain, your Honour, that there was no error in applying only Ulowski v Miller and we took the court to judgments in Queensland and in New South Wales and in South Australia, to the effect that Birkett v James does not reflect the law in Australia.

In the course of argument, your Honour, in this matter, Justice Steytler said that he fully accepted that the Full Court in Western Australia had consistently over the years applied principles derived from Birkett v James.

HIS HONOUR:   Well, it does not appear in his judgment.  It does not appear in the judgment.

MR PETTIT:   No, it does not, your Honour.  At bottom, your Honour, we say that if one looks to the principles from Ulowski v Miller, and then follows what the Master did, it is impeccable.  One can only undo it by finding either that the Australian line of cases exemplified by Ulowski is wrong, which their Honours did not do, or, one can only uphold their Honours’ decision by agreeing that their Honours can exercise, re‑exercise the discretion again. 

Now we are caught, your Honour, and prejudiced by the brevity of the reason.  That is undoubted, and perhaps there is an appeal point in that on its own.  But the difficulty from our point of view is that all we have is this result, which is clearly premised, we say, one way or the other on not just an error in this case, your Honour, but a persistent error over a decade, and the two errors are to repeat an overlooking of, a sidelining of House v King on the one hand, and secondly, a persistent confusion between the Australian line of cases and the English line of cases. 

Your Honour, it is such that – and I hope I do not exaggerate – in each of these types of applications in WA, those who would resist an application to strike out take refuge in the severe conditions of Birkett v James and those who want to have a dismissal, want a prosecution, invariably try to rely upon the Australian line of cases.

Persistently, the Full Court does not decide one way or the other.  What it has said – and again, your Honour, the point that we will argue if allowed stems from earlier cases such as Lewandowski v Lovell in which his Honour Justice Murray gave this explanation of the two lines of authority.  His Honour said, in effect, that they showed no more than that a discretion is in issue and the two tests exemplify different judicial approaches to the exercise of the discretion, but with great respect to his Honour, that simply cannot be right.  One or other of the tests for disposing of these cases must be correct and the other must be wrong, and we draw in aid Micallef, a decision of Justice of Appeal Heydon, as he then was.

Now, your Honour, it is the history of these matters over 10 years on those two points, and can I return, your Honour, because I have not yet finished my attempt to persuade your Honour that there is great similarity between the application by Hodder and by ourselves.  On the point whether or not special leave should be given on the principles applicable to prosecutions – sorry, for dismissal for failure to prosecute, both applications complain that the Full Court has failed to choose between the Australian line of cases and the English cases.  Both say that the two lines are inconsistent, one with the other, and both rely upon the case of Micallef.  Both say that Birkett is not the law in Australia.  Both say that the principles of case flow management are relevant with the exercise of discretion, were argued before the relevant courts but were overlooked and, lastly, in both cases the applicants have pointed to differences around Australia.

In short, your Honour, in South Australia and in Queensland and now recently in New South Wales the English line of cases is, I think it is fair to say, abandoned, although in Micallef in the alternative, his Honour Justice of Appeal Heydon did examine those factors from that case whereas in Victoria it appears to be the case that the principles from Birkett v James are alive and well, and in Western Australia there is this ambivalence about which is to be heard.

The state of authorities at the moment in Western Australia, your Honour, allows this to happen.  It allows a justice in one case in his discretion to follow Birkett v James, and in another, in a month’s time, to follow Ulowski.

HIS HONOUR:   What does that matter?

MR PETTIT:   It matters, your Honour, because they have quite different outcomes.

HIS HONOUR:   Of course, they may have different outcomes.  I am talking about cases deciding discretionary matters.  It is just wrong in principle.  They are nothing more than guidelines.  That is all they ever are.  All that is said in Birkett v James can be guidelines.  All that is said in all the other cases are just guidelines, and that is what said throughout the Australian cases, is it not, that they are just guidelines.  You take into account factors.

MR PETTIT:   That is why I say we are severely prejudiced by the brevity of the reasons and by the failure to even mention House v The King.  Of course, your Honour, we agree entirely, with respect, with what has just fallen from your Honour, and that is why it must be the case that the learned Master was not wrong.  Yet, sub silentio, we have been overturned, apparently because House v The King has been completely overlooked and apparently because the Full Court has drawn on two discordant lines of authority.  It is true, your Honour, that I cannot show you in black and white where that has been done, but the outcome is inconsistent with any other proposition. 

HIS HONOUR:   Well, not necessarily.  The approach of the court seems to have been, “Well, the parties agreed on the principles, the Master relied on five paramount matters, here they are, we look at these, we think he erred in relation to two and then it is a matter for us to weigh up the facts in favour of the defendant, the facts in favour of the plaintiff, and we come down in favour of the plaintiff”.  That is what they seem to me to have done. 

MR PETTIT:   Yes, your Honour, and, with great respect, that is in error because that does not take account of the discretion having been reposed in the Master.  That is simply a re‑exercise of the same discretion, which is why I keep repeating ‑ ‑ ‑

HIS HONOUR:   Well, they are entitled to take the view, in accordance with House, that if the Master has erred in relation to one of the matters he has taken into consideration, then the discretion is for them.

MR PETTIT:   Your Honour, with respect, that is not quite so.  The House v The King principle is that unless an error of law can be shown, the discretion is not to be overturned, unless in the result the result is so patently unreasonable or unjust that some error must be imputed and the appellate court in itself exercise the discretion.  There has been no such finding here, your Honour, and the facts speak volumes against it.  The relevant events occurred in 1988 and the strike‑out application was brought in 2002.  That is 14 years, your Honour.  We say, with respect, it cannot be the case that a successful strike‑out for want of prosecution where there is no error of principle shown or pointed to by the Full Court – could it be said that the result of a strike‑out after 14 years is patently unjust or unreasonable?

HIS HONOUR:   That only means a question of fact, and the Full Court got it wrong.  That is all.  There is not a special leave point.  It is just a wrongful exercise of their discretion.  It is a matter of practice and procedure.  That is another ground that you could rely on, In re Will of F B Gilbert (dec’d) (1946) 46 SR (NSW) 318, that on matters of practice and procedure, which this really is, appellate courts should be even slower to interfere with discretionary judgments.

With all respect to the judgment of the Full Court, it is not a model of what a judgment should be in such a case.  Fortunately or unfortunately, on a special leave application, it is against you.  But the point that I am making to you is this.  As far as I am concerned, you have no prospects whatever of getting an expedited hearing of a special leave application on the grounds that you rely on, other than the possibility that you can link your application with that of Hodder.  If you can, and if I thought that both cases were going to go over the same ground, then I would be inclined to grant expedition, although absent that factor you would not have any prospect whatever of getting an expedited hearing.

MR PETTIT:   Your Honour, I can only repeat that there are six or so similar propositions raised in the two cases, and all of those points have a history in Western Australia.

HIS HONOUR:   Yes, but the strength of the other side’s – I am sorry, when I say the other side’s case, I mean the Hodder Case – is that a lot of these matters are set out.  Justice Hasluck’s judgment is a much more conventional judgment.

MR PETTIT:   Yes, your Honour, that is the great irony which unfortunately your Honour has taken is against us.  We would urge upon your Honour that that is a factor that ought be presumed in our favour.  It is to our prejudice that there is no amplification of their Honours’ reasons.

HIS HONOUR:   I am not saying that you will not get special leave in your case – although I think there are real problems about it because of the nature of the judgment – but you carry a very heavy burden to jump over all these other applicants in the special leave application queue.  It seems to me the only thing that you have really got going for you is to show that there is a fairly close identity of interest between your case and the Hodder Case.  But there just does not seem to me – the two counsel for the applicants in each case would be, for the most part, addressing on very different bases.  You have to say, “You have to draw an inference in my case about these things”, counsel in Hodder’s Case says, “Look at this, look at that, they said this, they said that, and that is an error”.

MR PETTIT:   Your Honour, even in Hodder’s Case, what his Honour Justice Hasluck did was set out Birkett v James, but then made mention of the softening of that approach by the generally discretionary nature being retained.  The core that is common to both cases, your Honour, is that we need guidance on whether there is the element of rigidity inherent in Birkett v James, or there is not.

HIS HONOUR:   When I hear counsel say they need guidance, I almost turn off.  Counsel say, “We need guidance”.  What does that mean?  On a special leave application you should have a serious of propositions that you put to the Court and you say, “This is the law and they went wrong”. 

MR PETTIT:   Your Honour, that is what we have done.  We have said that the Australian line of cases is correct.  The English line of cases is not applicable in Australia.  To the extent that they were endorsed in our case and to the extent that they were endorsed in the Hodder Case, the Full Court is wrong.

HIS HONOUR:   Yes, but your problem is that you cannot point to any specific thing that the court says.  You have to rely on inference.

MR PETTIT:   Your Honour, the Full Court in our case did specifically endorse Birkett v James and the Full Court did make reference to ‑ ‑ ‑

HIS HONOUR:   Did they?  The parties have apparently agreed that the principles are stated in this mass of cases and it is a very fact specific case.  Five matters are set out and the Full Court said, “Error on the part of the Master in respect of two of them.  Therefore, discretion miscarried.  We have to deal with the matter ourselves”. 

MR PETTIT:   Yes.  Your Honour, all I can say is repetition and it is that that is not in accordance with the principle for review of discretionary judgments.  I have nothing further to add, thank you, your Honour.

HIS HONOUR:   Thank you, Mr Pettit.  Yes, I need not hear you, Mr Solomon.

This is an application for expedition of the hearing of an application for special leave to appeal.  The application arises out of an order by the Full Court of the Supreme Court of Western Australia that proceedings brought by the respondent/plaintiff, Tipperary Developments Pty Ltd, against the applicant/defendant, the State of Western Australia, proceed to trial.  The State had applied to dismiss the substantive proceedings for want of prosecution by Tipperary Developments.  Its application succeeded before Master Sanderson, but was overturned on appeal by the Full Court.  The trial of the action has been set down for hearing in the Supreme Court of Western Australia for six weeks commencing on 1 November 2004. 

Given the current state of the Perth list for special leave applications, it is almost certain that the matter would not be heard this year.  Even if the matter were listed in Melbourne or Sydney, it would not be heard prior to the start of the trial unless a grant of expedition was made.  There is a 17‑month delay in Perth between the filing of a special leave application and the hearing of the application, and the position is little better in any other jurisdiction from which applications for special leave can be brought to this Court.  The best of them, I think, is in Adelaide, where there is a delay of 12 months.

Both parties consent to the application for expedition and also to the special leave application being heard in a city other than Perth, but, as has often been said, it is a matter for this Court as to whether or not it should grant expedition.

The facts of the matter can be stated fairly shortly.  Tipperary Developments commenced its proceedings in 1992.  It alleges that it was induced to make a loan of $50 million to Rothwell Ltd in 1988, shortly before that company went into provisional liquidation.  Tipperary Developments alleges that it was induced to enter into the agreements by representations made by Western Australian Government Ministers and officers.  Although it recovered a proportion of the amount of $50 million, an amount of about $27 million remains outstanding.

In 1988 a settlement occurred between the parties.  Tipperary Developments released Ministers, officers and instrumentalities of the State from liability in respect of the moneys advanced to Rothwells.  In the present application Tipperary pleads that the deed of release does not extend beyond Ministers, officers and instrumentalities so as to release the State itself.  The State disputes the claim.

In 2002 the State successfully applied to Master Sanderson in the Supreme Court of Western Australia for an order striking out Tipperary Development’s claim on the ground that it failed to prosecute the action.  Tipperary then appealed to the Full Court, which upheld the appeal and set aside the Master’s orders.

In its reasons the Full Court accepted that the Master did not act on any wrong principle of law; rather, the Full Court found that the Master’s discretion miscarried in the application of the law to the particular facts of the case.  What law was applied by the Full Court is not clear.  However, the Full Court stated that the parties agreed that the relevant principles were contained in certain decisions, that the Master had accepted that and that he had relied on what were called five paramount matters.

The Full Court found that the Master had erred in his findings about some of these matters and set aside his judgment.  There is very little reference to authority and there is very little reference to the principles in the Full Court’s judgment – in fact, from recollection, there is no reference expressly to the principles upon which appellate courts act in setting aside judgments that are based upon discretionary considerations.  The Full Court ordered the matter to proceed to trial.

The State relies on a number of matters to support its application for expedition.  First, it says that both the State and Tipperary Developments will incur substantial wasted costs if the matter proceeds to trial and the State is successful in this Court; secondly, it says that the Supreme Court will suffer a substantial waste of its resources if the matter proceeds to trial and the State is successful in this Court; and thirdly, to avoid wasted costs, the State says it wishes to apply to the Supreme Court for orders that the trial not commence until the High Court has delivered judgment, assuming that the Court grants the application for special leave to appeal.  It says that the Supreme Court and the parties will be in a better position to assess such a motion for a stay of the substantive proceedings if the High Court has considered the application for special leave to appeal.

As I have pointed out more than once, an application for the expedition of a special leave application in this Court is not comparable with an application for an expedition of a proceeding in other courts.  First of all, an application for special leave is an application for permission to commence proceedings in the Court.  There is no matter in the Court until leave is granted.  Secondly, there is no right to special leave.  Thirdly, no special leave can be, or ought to be, brought unless it involves some matter of public importance or a miscarriage of justice, and there is no miscarriage of justice in the relevant sense merely because it appears that the decision below was wrong.  If error alone constituted a miscarriage of justice, every arguably wrong decision would be a candidate for special leave to appeal.

Before examining and hearing an application for expedition of a special leave application, this Court must proceed on the basis that other applications for special leave pending in the Court are properly brought.  That has the result that in hearing an application for expedition the Court must proceed on the basis that the other pending applications are either of public importance or involve a miscarriage of justice.  Of course, as the results of special leave applications show, the great majority of those applications do not satisfy the relevant criteria.

However, the Court can only proceed on the basis, in a matter such as this, that all pending applications are of public importance or involve a miscarriage of justice.  In addition, many cases pending in the Court involve the liberty of the subject.  They concern persons serving gaol sentences and persons detained in refugee detention centres.  If an application for expedition is successful, it means that another application must lose its relative priority.  So, in those circumstances, very strong grounds, particularly in a civil case, are needed before an application for expedition can succeed.

As a result of the increasing number of applications, the time between the filing and the hearing of applications for special leave to appeal is continuing to increase.  That makes it all the more important that an application for special leave not lose its temporal priority unless the application seeking expedition has some urgent aspect or need that is different in kind from that of other pending special leave applications.

As I have indicated, the discretion to order expedition may be influenced if the application has some urgent aspect or demonstrates exceptional circumstances, as Chief Justice Gleeson said in Re Nulyarimma, or, as I have just said, the applicant can demonstrate some important need that is different in kind from that of other pending special leave applications.  Also relevant is whether the application has an arguable chance of success.

As to urgency, the urgent aspect of this application is that the substantive proceedings have been set down for trial in the Supreme Court on 1 November.  No doubt the State’s argument that both parties will incur substantial costs if the trial proceeds before the special leave application is heard and determined is correct.  It is also true that both parties will incur substantial wasted costs if the trial proceeds and the State is successful in the High Court.  It is true, as the applicant points out, that there will be a waste of the resources of the Supreme Court if the trial proceeds and the State is successful in the High Court. 

However, the State has not applied to the Supreme Court for a stay.  It is still open to it to do so and the Supreme Court is certainly in a better position to consider whether to vacate the trial date pending the hearing of the special leave application than this Court is.  Indeed, if, for instance, special leave were granted in the matter of Hodder and Pembroke, where issues concerning staying actions for want of prosecution will be considered by the Court if leave is granted in that case, the Full Court may take a favourable view of an application by the State.  But, as I say, that is a matter for the Full Court.  Apart from the question of wasted resources, there does not seem to be any question of exceptional circumstances.

As to whether the applicant has an arguable case, it seems to me that its prospects of obtaining special leave are not strong.  The State submits that special leave should be granted for three reasons, basically.  The first is that this Court has not considered the criteria for the exercise of the discretion to dismiss an action for want of prosecution and that there is conflicting intermediate appellate authority on the applicable principles. 

In particular, the State claims that there are differences of opinion about the applicability of the principles stated by Lord Diplock in Birkett v James, including whether the test is as stated in that case or in Ulowski v Miller [1968] SASR 277, a decision of the Supreme Court of South Australia. The State also contends that there is conflicting authority in cases where there is inordinate or inexcusable delay on the part of the plaintiff as to whether the defendant must show particular or overwhelming general prejudice in order to succeed in an application for dismissal for want of prosecution.

Secondly, the State asserts that the Court has not considered whether case management principles alone may determine an application for dismissal of an action for want of prosecution, and it claims that this case provides an appropriate vehicle to provide guidance on that issue. 

Thirdly, the State placed a good deal of emphasis in this application today in arguing that the Full Court erred in the exercise of its appellate function in reviewing of the exercise of a discretion.  The State says that the Full Court failed to apply the principles articulated in House v The King and that this case provides an appropriate vehicle to consider the application of the principles in this case in relation to an application to dismiss an action for want of prosecution. 

In relation to the first reason, I am far from convinced that there is a conflict among intermediate appellate courts concerning the principles articulated in Birkett.  Rather, it seems to me there is a broad consensus among intermediate appellate courts in this country that the principles expressed in Birkett are guidelines and that the circumstances of the case generally determine matters such as whether particular or overwhelming general prejudice is determinative in an application for dismissal for want of prosecution.

Notwithstanding the arguments of Mr Pettit, it is arguable that the Western Australian courts also appear to follow that approach, although he strenuously maintained that the court does not.  However, it may be that there is a sufficient divergence of opinion among intermediate appellate courts to warrant the Court’s intervention in an appropriate case.  But I doubt that this is the appropriate case.  As I have already indicated, the reasons of the Full Court are very sparse indeed.  There is no reference to the authorities that are being applied, apart from the global reference to them, near the beginning of the discussion of the issues, which the court said had been agreed by the parties before the Master as stating the principles.  The Full Court seems to have decided the appeal on the specific factual issues raised, ie, the existence of the five paramount issues.

So far as the second reason urged on the Court for the grant of special leave, it is true that the Court may be able to provide guidance, although it is not a term I like, whether case management principles alone can be determinative of an application for dismissal for want of prosecution.  However, this is not an appropriate case to consider that issue.  First, because the Master expressly declined to decide the case on that basis, although he did say that if he had done so he would have reached the same conclusion.  Secondly, the Full Court did not consider that matter.  As a result, the Court would not have the benefit of the Full Court’s consideration of the issue, a matter which is always relevant in determining whether the Court should grant special leave to appeal in respect of some particular principle or matter.

The third reason relied on, namely, that the Full Court failed to apply House v The King, does not raise any general principle of law but, rather, the application of settled legal principles to a particular factual situation.  As formulated both in the special leave application and in the argument today, the special leave question seems to suggest only that the Full Court applied the wrong principle in substituting its own discretion for the Master’s, that is to say, it did not properly apply the principles laid down in House.

In my view, the State’s application for special leave is not a strong case.  The Full Court’s decision is arguably supportable unless one is prepared to draw the inference from cases previously decided by Full Courts in Western Australia that the court was not applying the correct principles.  It seems very doubtful whether any court could do that – ie, whether any appellate court, including this Court, could draw such an inference by reason of other decisions of other Full Courts.  The argument put forward by the State that this Court should draw such an inference is certainly a novel one. 

Accordingly, in the circumstances, I am not prepared to grant an application for expedition, for some five or six reasons.  First, the application does not demonstrate any urgent aspect other than that the trial of the substantive proceedings is listed to proceed before the special leave application can be heard.  There is nothing to suggest that any party would suffer damage in the sense that there will be the loss of a claimed privilege, for example.

It is true that, if the applicant succeeds at the trial, it may not be able to recover some of its costs, but that is all.  It is also true that if it succeeds in this Court and the action is stayed, it will have wasted costs, but within the meaning of the authorities the case has no urgency over and above the urgency which will attend any action where there are interlocutory judgments on foot and appeals against them.

Second, the application does not raise any exceptional circumstances that may justify the grant of expedition.  As I mentioned, the only matter relied on is that the parties in the Supreme Court may incur wasted expenses or resources if the substantive proceedings go to trial.

Third, the State has not applied to the Supreme Court for a stay of the proceedings pending the hearing and determination of the special leave application.  It seems to me a more appropriate course than expediting this special leave application.  The Supreme Court is well placed to determine whether to vacate the trial date pending the hearing of the special leave application.

Fourth, the application for special leave does not seem to me to be particularly strong.  Fifth, certainly so far as the issue of case management is concerned, the case is not a suitable vehicle and the case is not generally a suitable vehicle for discussing the issues that the State would seek to discuss, simply because of the spareness of reasons given by the Full Court.  Sixth, it would require giving the applicant priority over other cases, including criminal cases and refugee cases that have been waiting for months for a hearing.

The one matter that did exercise my mind in respect of this application is whether the case should be expedited because in October in Perth the matter of Hodder v Sangora Holdings Pty Ltd & Anor, which concerns issues about want of prosecution and interfering with the discretion of primary judges, will be heard.  However, the two cases do not seem to me to be sufficiently identical to warrant expediting this case to be heard with that case. 

It is true, as Mr Pettit pointed out, that both parties, that is, the parties in Hodder and the State in this case, seek to rely on fairly similar general propositions, but the real difference between the two cases is that in Hodder there is a fairly lengthy judgment which discusses the legal issues at length, and refers to authority, whereas in the present case the reasons are so spare that the principles that the State claims must have been applied can only be deduced, so it is said, by reference to other decisions over the last decade by the Full Court of the Supreme Court of Western Australia. 

Accordingly, I do not think that the existence of the Hodder special leave application is sufficient in itself to warrant the expedition of this case to be heard.  In those circumstances, the application for expedition is refused. 

What do you say about costs, Mr Solomon? 

MR SOLOMON:   I would say costs should follow the event and that we should have the costs, your Honour.  We were prepared to consent to it, but for entirely different reasons.  We have not aligned ourselves with this application on the basis of forum; in fact we disclaimed it. 

HIS HONOUR:   Yes.  Well, you cannot oppose that, Mr Pettit. 

MR PETTIT:   I was going to, your Honour ‑ ‑ ‑

HIS HONOUR:   You were? 

MR PETTIT:   I certainly was, your Honour.  The application was suggested by my learned friend in the first place by correspondence.  We acceded to the view and took it up.  Basically, the issues are the same.  The reasons of the two parties are basically the same, and that is, let us try to get this issue out of the way ahead of the trial. 

HIS HONOUR:   So the other side suggested it? 

MR PETTIT:   Absolutely, your Honour.  It is in correspondence. 

HIS HONOUR:   I must have missed that. 

MR SOLOMON:   That is not altogether accurate, your Honour.  We suggested it in March and nothing was done until after the matter was listed, after Justice Murray directed it be listed this year in July.  We wrote a letter in March and nothing was done until after the matter was listed in July.  So we have not really suggested the application being brought at this stage, after months of delay by the State in not bringing it.

HIS HONOUR:   Yes, but both parties had a common interest in having the issue determined and you consented to it.  You did not have to consent to it.  Why is not the appropriate order that each party pay its own costs?

MR SOLOMON:   We consented to it, your Honour, simply to endeavour to ensure that the trial dates are not lost for us, and, for that reason alone, to try and have special leave dealt with before the trial so that there would be no possibility of us losing the trial date.  That, of course, is on the basis that we are confident of success on the special leave.  So our basis for consenting was entirely different from the basis on which the application has been belatedly made, but I cannot put the submission any stronger than that.

HIS HONOUR:   Yes, thank you.  I think in the circumstances of this case the appropriate order is that each party ought to pay its own costs.  Both parties had an interest in expedition and it appears that, at least originally, the respondent was enthusiastic about an application.  It certainly thought it should be brought.  In those circumstances I think it would be appropriate for each party to pay its own costs.  Anything further, Mr Pettit?

MR PETTIT:   No, thank you, your Honour.

HIS HONOUR:   Mr Solomon, anything further?

MR SOLOMON:   No, your Honour.  I think…..application dismissed and each party bear their own costs, but I do not think anything further.

HIS HONOUR:   Yes.  The order is application dismissed, each party to pay its own costs.

Adjourn the Court.

AT 6.42 PM THE MATTER WAS CONCLUDED