State of Western Australia v Tipperary Developments Pty Ltd & Anor

[2004] HCATrans 456

[2004] HCATrans 456

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P15 of 2004

B e t w e e n -

THE STATE OF WESTERN AUSTRALIA

Applicant

and

TIPPERARY DEVELOPMENTS PTY LTD

First Respondent

WARREN PERRY ANDERSON

Second Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 NOVEMBER 2004, AT 1.17 PM

Copyright in the High Court of Australia

MR K.M. PETTIT, SC:   If it please your Honours, I appear with MS D.H. CAREY for the applicant.  (instructed by State Solicitor for the State of Western Australia)

MR B.C. OSLINGTON, QC:  If the Court pleases, I appear with MR J.C. GILES for the respondents.  (instructed by Solomon Brothers)

McHUGH J:   Yes, Mr Pettit.

MR PETTIT:   Your Honours, the Full Court in this case held that in the absence of particular prejudice or overwhelming general prejudice to the defendant, an application to dismiss for want of prosecution must fail, and it must fail, their Honours said, because of the prejudice to the plaintiff of having the action dismissed.  Now, obviously, your Honours, because every application entails that consequence to the plaintiff, the ratio, we say, below, is simply this, that in every application for dismissal for want of prosecution there must be shown by the defendant either overwhelming or particular prejudice.  That appears at application book 45, paragraph 18 and application book 46, paragraph 27. 

Our contention, however, your Honours, is that the law governing applications to strike out for want of prosecution does not require proof that delay has caused such prejudice.  Rather, it is necessary only that prejudice be shown, and that prejudice can be inferred from the long delay.  We have set out in our ‑ ‑ ‑

KIRBY J:   Is this really fair to the Full Court, because they did go through a number of considerations.  They went through the issue of the delay and the length of the delay and the hardship to the plaintiff.  These are pretty standard considerations that one takes into account in applications of this kind, so it was not only the prejudice to a party it was the whole circumstances of the case.

MR PETTIT:   Your Honour, it is true, we concede, that the Full Court looked at one or two of the – perhaps only one – that is, the explanation for the delay of the other ‑ ‑ ‑

KIRBY J:   Yes, but they addressed their mind to the list of factors at paragraph 11 on page 42 that Justice Bray had identified in Ulowski, and so they had those principles in their mind.  That is an Australian case; it is not an English case.  They are pretty standard things.  If you are sitting in a practice list, as Justice McHugh and I have done for many years, you just take those into consideration and it is a matter of evaluation and judgment of the whole lot.  You do not dissect them neatly, you just have to have them in your mind and then consider them, and they appear to have done that in the Full Court. 

MR PETTIT:   Yes, your Honour.  We accept, with respect, everything your Honour has said, but at the trial level, not at the appellate level.  There were two points there that I want to address, your Honour.  The first was your Honour’s observation that the court below, the Full Court, addressed each of the factors.  The only factor, apart from this prejudice or the comparative prejudice, if I can put it that way, the only other aspect of the relevant matter that was considered by the Full Court was the question of whether or not the lengthy delay was explained, and on that point the Full Court said no more, your Honours, than that it perhaps was not as unexplained as the Master thought. 

Their Honours below did not come to any conclusion about whether there was inordinate delay, whether by and large the delay was unexplained, nor did their Honours quantify it.  If one reads paragraphs 27 and 28 at application book 46, it is quite clear that the ratio of the case turns on nothing but the relative prejudices.

McHUGH J:   But there is no ratio in the case.  The case is a discretionary judgment on a particular set of facts where the parties agreed that the law had been laid down in three cases, Birkett v James, Ulowski, Lewandowski  and the fourth case, Hughes v Gales.  This is just a simple fact case, a discretionary matter.  It is a decision on a question of fact and the statements that are made are statements about the particular facts of the case.

MR PETTIT:   Your Honour, first of all, it is not the case, with respect, that we agreed that Birkett v James was the law to be applied.

McHUGH J:   Did not Master Sanderson in his judgment say that the parties agreed that the principles governing the application were to be found in those cases to which I referred?

MR PETTIT:   What we had said, your Honour, in our written submissions to the Master, was, “These are the foundation cases”, and in the next paragraph we said, “However, they all have to be taken in the light of Ulowski”.  That is how we pinned our case.  By the time we got to the Full Court, there was actually a contest, your Honour.  Our position was that Ulowski was correct and to follow it was not wrong.

The first ground of appeal was that Birkett v James ought to have been applied.  That was the contest below.  True it is that their Honours in the Full Court have not made a decision about that – or, I suppose, one could say that implicitly they had decided both lines of cases are not wrong, as to which we would say they are inconsistent and one of them must be wrong.  Our case boils down to this.  The Full Court has done one of two things or perhaps both, either it has, almost sub silentio, applied Birkett v James, the more rigid formulaic approach of the English courts to reverse the Master’s application of Ulowski, or the Full Court has accepted that the Master did not err in applying Ulowski.  And I stress here, your Honours, it is very important to our case that the Master applied no case except Ulowski and he applied it ‑ ‑ ‑

McHUGH J:   I appreciate that, but the Full Court noted in its judgment that the parties had agreed before the Master concerning the appropriate principles.  The Full Court just really did not deal with the issue of which was the correct approach.

MR PETTIT:   Your Honour, that is exactly the point I was coming to.

McHUGH J:   Why should we grant special leave?

MR PETTIT:   Your Honour, because notwithstanding that the Full Court’s reasons may be inscrutable on which approach it adopted, namely, whether it thought some other case ought qualify Ulowski or whether the Full Court simply went through the relevant factors itself, in either case that does not affect special leave, because, on the contrary, that means that this Court, if special leave were granted, would have to address both those streams, both those possible means by which the error which we say was made occurred.

McHUGH J:   Mr Pettit, we have said again and again that we are assisted by what is said by the intermediate courts and you cannot get a clearer need for that rule than in this case, because there are different rules in the different States.  You have your Order 29 and 29A.  Other States have other case management rules, so has the Federal Court.  I do not think you could lay down a general principle in this area of law.  So far as I can see, the Victorian courts are the only courts that appear to restrict the exercise of the discretion in the way outlined in Birkett v James.

In New South Wales the Stollznow approach is that the court has an unfettered discretion and merely lists the matter to be considered, then you have the Ulowski.  I mean, it must depend on the case flow management principles in various jurisdictions, particular Rules of Court.  It is not a great subject for this Court to be dealing with.  Anyway.

MR PETTIT:   As I say, your Honours, the ratio of the court below must be, and the one that must be the centrepiece of defences in the future in Western Australia is that unless the defendant can show overwhelming or particular prejudice, that defendant will not succeed.  If that ratio is to be applied ‑ ‑ ‑

McHUGH J:   It seems to me to be just a question of fact.  Sir Owen Dixon once said in White’s Case that not everything in the Law Reports is law.  He was not talking about erroneous statements of propositions of law, he was saying that a lot of statements are just statements of fact.  In this Court, Sir Garfield Barwick said it – I think it was in Butler’s Case – no, it was not Butler’s but some later case.

MR PETTIT:   Your Honour, the other side of the matter is, with respect, equally important, that is, it is clear from the Full Court reasons, particularly at application book 44 in the reasons of the court, that the Full Court has itself reassessed the weight of each of the factors.  There was debate in the court below on the proper content of the rule from House v The King.  It was pointed out by one of the justices, Justice Steytler, that in the New South Wales case of Micallef his Honour Justice of Appeal Heydon had stated the test from House to include the capacity of an appeal court to look in the first place at weight.

That was obviously relevant in this case because many of the grounds of appeal to the Full Court relied simply on the weight to be attributed to individual factors.  We had that debate, your Honours, and I might add that there is some inconsistency, with respect, in the High Court cases if one compares House v The King itself, which does not admit the possibility of an appellate court looking at individual factors, weight, in the first instance, and, on the other hand, cases such as Australian Coal and Shale and Lovell v Lovell, particularly the judgments in both those cases of his Honour Justice Kitto ‑ ‑ ‑

McHUGH J:   Justice Kitto, yes.

MR PETTIT:    ‑ ‑ ‑ the opposite result seems available.  Now, despite having that debate in the Full Court, there is no mention either of House v The King, Australian Coal and Shale or of the proper approach.  We say, with respect, that this ought not be overlooked as a special leave point in itself, for the reason that House v The King is important not only to control appellate jurisdictions, but it is very important, we say, your Honours, to dictate both the permissible grounds of appeal in such a case and to dictate the drafting of reasons.

KIRBY J:   Can I just ask, so that I will get this clear, is it your submission that the Full Court overlooked House v The King?  I mean, that seems a very unlikely prospect, given that that is, as it were, the sine qua non of decisions in applications relating to practice and procedure.

MR PETTIT:   We do say that, your Honour.  It was debated below, but there is no menton of House v The King or any mention of a principle which one could identify with House v The King in the judgment itself.  In support of that, your Honour, lest it be thought that in such applications in Western Australia the application of House v The King is trite, we have put into our written submissions the list of cases from 1995 to 2002 heard by the Full Court in Western Australia.  Of those 16 cases we were able to identify which went on appeal, one only, Sangora, made mention of House v The King or the principles.

KIRBY J:   Let me get it absolutely clear.  Do I understand that your attack on the judgment of the Full Court is (a) that their Honours did not remind themselves of the need to pause before disturbing the decision of the Master and to remind themselves of the principles in House v The King before they embarked upon what you are suggesting was their own de novo assessment of the merits of the case.  Is that the first point?

MR PETTIT:   It certainly is, your Honour.

KIRBY J:   Secondly, is your contention that when they did embark upon considering the merits of the case, they did not take into account a particular consideration?

MR PETTIT:   No, your Honour.

KIRBY J:   Your complaint is that they gave undue attention to the prejudice to the plaintiff?

MR PETTIT:   Your Honours, our submission will be that House v The King works in this way, that unless there is error demonstrated – and the errors can be a failure to give consideration to a relevant factor and so on – then the Court of Appeal is not entitled to examine individually the weight allocated at first instance to the various relevant factors, unless, looked at as a whole, the result below is manifestly unreasonable or unjust.

There is no hint of that kind of approach here, your Honours.  If I could take your Honours to page 46 of the application book, paragraph 27, rather, the Full Court said this:

We think that the Master’s discretion also miscarried because he effectively failed to accord any weight to the undoubted prejudice to the plaintiff –

With great respect to their Honours below, that simply cannot be right.  Your Honours, if you go to what the Master said on this, which is at the Master’s paragraphs 23 and 24 at application book page 25, the Master said:

There is no doubt that if this action is dismissed it will occasion hardship to the plaintiff.  The plaintiff’s claim will be time‑barred and there is no question of the action being recommenced.  Accordingly the plaintiff will be precluded from recovering any amount to which it may have been entitled. Furthermore, legal expenses of millions of dollars have been incurred and will be wasted.  The costs associated with the expert report will be wasted.  In addition, the plaintiff will be liable for the defendant’s costs of the action which will be substantial.

Dismissing this action will cause hardship to the plaintiff and this is a factor in the plaintiff’s favour.

In the light of all that, your Honours, it is simply not open to the Full Court to say, as it did at application book 46, “We think the Master failed to accord any weight to the prejudice”.  Our complaint about that paragraph, your Honours, is this, that if one accepts paragraph 27 in the Full Court, the point is completely obscured that House v The King has been disregarded, because the way their Honours have expressed the matter there suggests that the error they were reviewing was an error by the Master to fail to consider a relevant factor, which I hope I have demonstrated cannot be the case.  So we say that House v The King has been completely overlooked, your Honour, and breached.

KIRBY J:   You yourself got out of time, on the respondent’s argument, in bringing this application, is that not correct?

MR PETTIT:   Yes, we did, your Honour.  In our outline of submissions we have sought leave to apply out of time, which I do now.

KIRBY J:   Is there a little bit of irony in that?

MR PETTIT:   Not at all, your Honours.  With respect, the judgment below was handed down on the day and we did not get the reasons or ‑ ‑ ‑

KIRBY J:   The orders were made on the day, but the reasons followed some months later after the long vacation.

MR PETTIT:   That is so, your Honours, so there was no way in which we could draft grounds of appeal before that date.  We were within time if one takes the relevant date as delivery of the reasons.

KIRBY J:   Yes.

MR PETTIT:   Your Honours, just very briefly, in case it be suggested that for other reasons this is not a suitable vehicle, we point out that the Full Court is certainly not disadvantaged by lack of consideration on the law relating to want of prosecution.  There are ample Full Court cases in Western Australia and, indeed, throughout Australia.  Indeed, your Honours, the diversity of opinion, we say, is one reason the matter ought attract special leave.

As to the facts of this matter, your Honour, although there is very little analysis of the facts by the Full Court, the facts in total – and there might be some dispute, if leave were granted, about the accuracy or the sufficiency, even the propriety, of some of those findings of fact by the Full Court – the facts in total are not voluminous and the disputes are of narrow compass. 

For all those reasons, your Honours, we say this is a suitable vehicle for the airing of both the contest between the Australian and English cases and the application, at least in Western Australia, of House v The King.  May it please your Honours.

McHUGH J:   Yes.  Yes, Mr Oslington.

MR OSLINGTON:   May it please the Court.  The classic statement of principle in House is at page 505:

It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed –

When applying those principles to the facts in House, which was an appeal against severity of sentence, at page 507, in the judgment of the majority, their Honours said:

In the circumstances we have stated we do not think that we can say that the sentence, although severe, was unreasonable or clearly unjust, and there is no other ground for saying that it arose from error of fact or of law, or failure to take into account any material consideration, or from giving undue weight to any circumstance or matter.

Weight is clearly part of the test in House.  That was recognised by Justice Heydon sitting in the New South Wales Court of Appeal in Micallef, which is in our list of authorities, in paragraph 45 of his Honour’s judgment.  His Honour economically and succinctly stated the matters relevant to an appeal against a discretionary judgment.  Subparagraph (d), “failed to ‑ ‑ ‑

KIRBY J:   We know all this, Mr Oslington, we know all this.  We have sat through thousands and thousands.  But there are two things that worry me.  The first is that, once again, you do not get the Court of Appeal pausing before they enter upon their jurisdiction to say where they think an error has occurred.  You do not get them saying, “This is the error that we think authorises us to disturb what is, after all, a discretionary decision in a matter of practice and procedure”.  Secondly, insofar as they do suggest error by saying that the discretion miscarried, they refer to the Master not having given any weight to the prejudice, whereas in fact he specifically referred to the prejudice to the plaintiff.

MR OSLINGTON:   The Master referred to the prejudice, but in reaching his conclusion at page 28 of the application book, just above line 10, the Master said:

it was a matter of weighing all these factors in the balance.  Having done that and taking into account all the evidence and the submissions made by the parties, I am satisfied that this action ought be struck out . . . In my view, what is decisive is the length of the delay and the inadequate explanation for the delay. 

The Full Court examined the Master’s reasons and the relevant facts.  The Full Court recognised that the case could be brought on for hearing in a very short space of time and was ready for hearing, subject to one thing, delivery of our expert report, which the Full Court held could be achieved within a week or so, and, second, subject to answers to interrogatories about the defendants. 

The Full Court no doubt had in mind what the Master regarded or expressed as being decisive and the Full Court, for the reasons expressed in 25 and 26 of their judgment at page 46 of the application book, dealing with the Master’s consideration of the delay, in respect of which they found error on the part of the Master (a) in the categorising, as the Master did, impecuniosity as being adverse, necessarily, to the plaintiff, and the second error was a failure on the part of the Master to carry out any sufficient analysis of what effect, in any event, impecuniosity had on any delay, as distinct from other features.

The Full Court, having taken that on board and identified error in that respect, which, in our respectful submission, is clearly error within the type of error described in House, then looked at prejudice.  The Full Court held he effectively failed to accord any weight in the undoubted prejudice to the plaintiff to which he referred.  That was a view the Full Court presumably came to in light of what the Master expressly said in his decision was decisive to his judgment.  In our respectful ‑ ‑ ‑

KIRBY J:   I take the force of all of that.  I say this with great respect to their Honours in the Full Court, because they are a very busy court, and I have sat in a busy court in New South Wales myself, but the fact is that normally, when you come, in a matter of this kind, to exercise your appellate powers, you say and address your attention to the fact that error has been shown.  Unless it can be slipped in through those words “discretion miscarried”, there is not that moment of pause as to whether you will use the appellate powers. 

We have had cases in this Court, since I have being here, in respect of the Family Court of Western Australia and sentencing, where the complaint has been that the Full Court has entered upon the exercise of its appellate powers without first pausing and finding error, addressing its mind to that issue and saying what the error is, and then going on to exercise its powers for itself.  That is the matter that concerns me, I have to say to you.  That is the complaint that Mr Pettit has put in my mind.

MR OSLINGTON:   Yes, your Honour.  But first, your Honour, there is no doubt that the Full Court was mindful of the principles in House; indeed, it was one of the decisions cited.  That is apparent from page 40 of the application book.  In our respectful submission, although ‑ ‑ ‑

KIRBY J:   It is not cited in the reasons, and we are told that it never cited – I would not infer for a minute that their Honours were not familiar with that, but it is better if appellate courts say, “We find error”, because that is the key that unlocks the door to their powers.

MR OSLINGTON:   Your Honour, we would not want your Honours to be influenced by that part of the applicant’s submissions asserting that since 1995 the Full Court has failed to apply House v The King.  The applicant’s submissions list in Part C of their authorities 15 cases which they claim support that proposition.  In 11 of those cases, House v The King was not even arrived at, because the Full Court in each of those 11 cases examined the decisions of the Master in nine of the cases and the District Court judge in two and found that there was nothing at all wrong or remarkable in the reasoning.  In the remaining four cases, when one analyses them, true, House v The King is not referred to in the bodies of the judgment, but they are cases in which it is quite clear from the judgments themselves that principles in House v The King have been applied.  They are cases in which the court below mistook the limitation period or expressly mistook the facts or failed to take into account relevant facts. 

It is simply – my learned friend has not sought either in argument or in the submissions to analyse any of those authorities, but, in our respectful submission, they simply do not bear out a claim that the Full Court has systematically ignored House v King.  Nor has it done so in this particular case, in our respectful submission, because the kind of error identified in relation to delay in paragraphs 25 and 26 and in relation to weight given to prejudice in paragraphs 27 and 28 are clearly the type of errors which attract the appellate review in accordance with House v The King.

KIRBY J:   I suppose you can say that at paragraph 26, their Honours say:

With respect, the Master erred in his view –

and, right or wrong, that is a finding of error.  But it is coming right in the last page of the reasons.

MR OSLINGTON:   And the language used in paragraph 27 of the judgment:

We think that the Master’s discretion also miscarried because he effectively failed –

is the sort of language courts use when identifying error on discretionary appeals.  The fact that the Full Court said “We think that the Master’s discretion also miscarried” indicates that the Full Court had in mind what they said about the Master’s treatment of delay; also involved a miscarriage of discretion ‑ ‑ ‑

KIRBY J:   Can I ask you this, is it a factor to take into account that you come to the view, without, of course, finally determining it, that the plaintiff or the party has an arguable case, that there is a matter that is suitable to be tried?  And was that considered in this case?

MR OSLINGTON:   Yes.

KIRBY J:   There is a lot of money turning on this case, is there not?  $27 million, I think.

MR OSLINGTON:   Yes, and that is back from in the late 1980s, your Honour, so there would be interest on that.  It is obviously very significant, and the Full Court regarded it as very significant, that the case was ready for trial subject to the provision of an expert report, which the Full Court found could be delivered within about a week, and subject to answers, the two interrogatories by the defendant. 

Now, the Full Court also adopted the Master’s finding that there was no particular prejudice to the defendant to prevent the defendant getting a fair trial.  It is quite obvious the prejudice to the plaintiff was enormous.  The limitation periods had finished.  That is why the Full Court, in our submission, was justified in saying – and I am really arguing an appeal at the moment – was justified in saying that what was in fact decisive was the overwhelming prejudice to the plaintiff in the circumstances of this case.

The Full Court’s decision does not lay down a ratio that in every case of a strike‑out for want of prosecution, the defendant must demonstrate either particular prejudice or overwhelming prejudice.  The Full Court’s decision in this case is a case on its own facts, having regard to principles in a number of earlier decisions which the parties before the Master agreed, in general terms, governed applications of this kind. 

The Full Court’s decision does not raise a conflict between Birkett v James and Ulowski suitable for resolution by this Court and, in any event, it is doubtful – if there is such a conflict, as distinct from each being decisions referring to matters relevant for consideration in the cases – whether that is sufficiently special.  It does not raise an issue as to whether or not House v The King has been applied. 

KIRBY J:   But what do you say to the principal argument Mr Pettit urged upon us, apart from the failure to find error, that when the error was identified it was really disproved by reference to the Master’s reasons, that they say there was no attention to the prejudice to the plaintiff, whereas in fact there was attention to that matter? 

MR OSLINGTON:   That depends on how one interprets the word “effectively” ‑ ‑ ‑

McHUGH J:   But there is more to it than that, Mr Oslington.  Go to paragraph 26, where the court finds its first error.  It says:

the Master erred in his view of the matter adverse to the cash flow difficulties the plaintiff encountered –

they do not say why, and then there is this statement:

A litigant should not be shut out from bringing litigation merely because delays might be caused by cash flow difficulties.

What does that mean?  That you can delay for ever and ever?

KIRBY J:   That is in favour of you, Mr Oslington.  You can embrace that with enthusiasm.  Do not look so suspicious about us.  We are sometimes very helpful.

MR OSLINGTON:   Yes, your Honours.  The Full Court did give a reason ‑ ‑ ‑

KIRBY J:   Against that, it is a lot of money.  This is the State and it is found that there is no prejudice to the State, so a lot is at stake.

MR OSLINGTON:   Well, that is why I sought to draw attention between, on the one hand, what the Master regarded as decisive, simply delay simpliciter.  That, in our respectful submission, explains why the Full Court particularly focused on delay and also focused on prejudice.

In answer to your Honour Justice McHugh’s observation about there being no explanation, the Full Court said towards the end of paragraph 26 that:

there was no sufficient analysis of the effect of lack of money on the progress of the litigation from time to time.

No doubt that is something your Honours would be invited to look at, if your Honours granted special leave.

McHUGH J:   That would surely be a matter for you, would it not?  I mean, your client should have – assuming it was relevant at all, which at the moment I am very doubtful about, it should have been for you to show how your lack of money at different times caused you to delay the action.  Did you do so?

MR OSLINGTON:   I do not know whether that was done in the hearing before the Master, but the observations of the Full Court were directed to the reasons given by the Master.

McHUGH J:   Yes, but you are the mendicant.  You are asking for the privilege to explain your delay and you are the one that has to provide the evidence.  The Full Court seems to have said, well, the Master was wrong when he said that your explanation for delay was unsatisfactory.

MR OSLINGTON:   I would submit what the Full Court is saying in that paragraph of the decision is that the Master did not analyse just what period of time was included within the delay and was caused by the lack of money.  There certainly was explanation as to how the lack of money caused delay, and that was because of the cost of obtaining an expert’s report.  So there were some delay in that respect, but what the Full Court is saying is the Master – you could not simply say all of the delay, if it be described as “delay”, was caused by lack of money.  The Master did not really look at just what period of time included in the delay was caused by lack of money, and the Full Court obviously realised as significant, in light of the Master’s reasons, that the delay in itself was decisive of his decision. 

In our respectful submission, there is no point arising in this decision of the Full Court suitable for a grant of special leave.

McHUGH J:   Well, except the visitorial jurisdiction – what I call the visitorial jurisdiction.  The decision is wrong and the Court should ‑ ‑ ‑

MR OSLINGTON:   But the decision, with respect, is not plainly wrong if one recognises that one of the grounds attracting the principles in House is giving undue weight to particular facts.  The two grounds upon which the Full Court identified error on the part of the Master certainly fall into that category, and the former ground probably falls into the category of an error of fact.  But once the Full Court decides that insufficient weight or no weight was given by the Master to a particularly relevant fact, that entitles the Full Court to re‑exercise the discretion itself, and whether or not, on a proper analysis of all of the evidence in the Master’s decision, the Full Court should have reached that conclusion is simply a question of fact.

McHUGH J:   Yes, but the Full Court seems to have almost reversed the whole issue of explanation of the delay.  In paragraph 24, they say:

The pursuit of Ferrier Hodgson for a time accounts for a portion of the delay. 

Well, it is not sufficient to account for a portion of the delay.  You have to explain the whole of your delay.

MR OSLINGTON:   With respect, the period of the delay and the explanation of the delay are but one of many relevant considerations to take into account.  The mere fact that he might not be able to explain ‑ ‑ ‑

McHUGH J:   Of course they are, but the Full Court in paragraph 25 says that the error of the Master is the way he approaches this question of the explanation for the delay.

MR OSLINGTON:   That is one error.

McHUGH J:   Yes.

MR OSLINGTON:   And the second error – because there are two independent errors, either of which ‑ ‑ ‑

McHUGH J:   Well, the second one does not seem to me to be a very strong one, to effectively fail to accord any weight.

MR OSLINGTON:   Well, in light of the Master’s decision in finding the delay decisive ‑ ‑ ‑

McHUGH J:   Well, it was decisive – it could be regarded as decisive unless there was an adequate explanation.

KIRBY J:   I understand your submission to be that whatever we would have done if we had been exercising this discretion, unless the Full Court has erred in its approach or unless there is some general principle about Birkett v James or something of that kind, we are not going to get involved in revising a decision of a Full Court on a matter of practice and procedure, because otherwise we would make the same error as they are alleged to have made.

MR OSLINGTON:   That is our primary submission, your Honour.  I was leading to essentially arguing the appeal in part, on some of the material which obviously would be referred to if leave was granted.

KIRBY J:   Yes, well, I think we have gone over and over the ground.  I think we know what it is all about.

MR OSLINGTON:   If the Court pleases.

McHUGH J:   Thank you, Mr Oslington.  Yes, Mr Pettit.

MR PETTIT:   Just briefly, your Honours.  First of all, it is not correct, with respect, to say that the Master or the Full Court found that there was no prejudice to the defendant.  The Master certainly found there was prejudice, and that was not disturbed.  It was described as general prejudice arising from the fact of the long delay. 

Secondly, your Honours, in each of the matters referred to by my learned friend, they are all – each of them is either a revisit of the weight of a particular factor by the Full Court or it is a re‑analysis, and in each case we would say, if leave is granted, an inadequate re‑analysis of the facts.  All of those things shows that the Full Court did nothing other than revisit the five paramount considerations from the Master and come to its own version on ‑ ‑ ‑

KIRBY J:   So what?  Once they have found error, that is what they must do.  In that paragraph, at the very beginning, they say at paragraph 12:

Rather we consider the Master’s discretion miscarried –

Now, that is the language of error.  Then when they come to the end of their reasons, they say in 26: 

the Master erred –

That is the language of error.  Paragraph 27:

the Master’s discretion also miscarried –

Now, you say that the Full Court erred by entering upon this matter of practice and procedure, but essentially you want us to do the same thing.  Unless they have erred in the way they have gone about it, we would not normally get involved, for the very good reasons Chief Justice Jordan gave in the Will of Gilbert, in a case concerning the practice and procedure of Full Courts.  As Justice McHugh has pointed out, the rules are different, the practices, the needs are different.  We just do not have the time to do that.

MR PETTIT:   Your Honours, we exercise we ask of this Court is not the same as that by the Full Court.  We are asking ‑ ‑ ‑

KIRBY J:   Yes, but you put up two things.  You have put up that they have failed to exercise it in accordance with House v The King, an error, and I have pointed to three paragraphs where they do show error, that they were addressing that issue.  Whether they got it right or wrong was their business, unless they made an error.  Secondly, you said that they made reference to the overwhelming significance to the plaintiff, or gave overwhelming significance to that factor.  Well, it is a factor, and they have mentioned other factors as well, which are pretty standard factors.

MR PETTIT:   Your Honour, the fact that the Full Court used the language of error should not sway your Honours.  With great respect ‑ ‑ ‑

KIRBY J:   Yes, but the fact that they did not refer to House v The King is not a reason why we would – well, you know, you do not have to use a magic formula in this country.  It is not necessary to do that.  If in substance they have done it the right way, we are not going to rap them over the knuckles for not repeatedly invoking House v The King.  It is not a mantra.

MR PETTIT:   Your Honour, with great respect, there is no reason to come to the view that they have done the right thing in this case.  The two matters your Honour has pointed to, one, that they used the language of error, that is simply a matter of form, your Honours.  That does not indicate any substance to the contention that they have abided by House v The King.  Plainly, your Honours, from what has been done, they have not held House

v The King in mind but have simply revisited the facts and the weight and come to their own view. 

Now, as we say, in paragraph 27 of the Full Court, there are only possibly two explanations for that.  One is a complete disregard of House v The King, which we say should attract special leave, or, because the Master has impeccably – and I say that advisedly – applied Ulowski, the only other possible explanation is the Full Court has found some other case – Birkett seems the only candidate – to qualify Ulowski.  I should point out, your Honours, if Ulowski is applied ‑ ‑ ‑

KIRBY J:   I just do not think that squares.  It does not square with what they said when they recorded the cases that had been accepted by the parties, one of which was Ulowski, and then, in paragraph 11, they list the Ulowski criteria.  Then, more importantly ‑ ‑ ‑

MR PETTIT:   I cannot do any more, your Honours, than repeat that that is not an accurate assessment of what went on, either before the Master or before the Full Court.  Before the Master, in our written submissions, we set out the salient cases by way of their history.  Our very next paragraph then said “However” and we went on with our explanation of Ulowski.  Before the Full Court, the contest lines were drawn much more sharply than that.  We said, “100 per cent adherence to Ulowski is not wrong, do not disturb it”.  The other side said, “Birkett v James was not abided, overturn it”. 

KIRBY J:   Yes, but when they set out the five factors in Ulowski, then look at the structure of their reasons.  Their reasons are then divided into a section where each of those factors is a subsection of the reasons.  So they obviously did address the Ulowski criteria, not Birkett v James.  So it is not a very good vehicle to attack Birkett v James, including the fact that you apparently conceded that Birkett v James was a relevant case. 

MR PETTIT:   No more than that it is relevant, your Honour.

KIRBY J:   Yes.

MR PETTIT:   Thank you.

McHUGH J:   Thank you. 

We see no error in the approach of the Full Court of the Supreme Court of Western Australia in respect of the first two questions that form the subject of this special leave application.  The Full Court noted that the parties had agreed that the principles governing the application were to be found in a series of cases, including Birkett v James [1978] AC 297. This is not, therefore, a case in which to consider the principles in that case or their application in Western Australia or in Australia generally.

The first two questions in the case also arise in matters of practice and procedure.  There are reasons of prudence for not attempting to impose rigid rules on the courts of different States, given their differing laws, court rules, practices and needs.  Accordingly, in our view, the first two questions raised in the special leave application do not warrant a grant of special leave. 

The third question in the application also concerns a matter of practice and procedure.  The applicant complained that the Full Court failed to find error before entering upon the exercise of its appellate powers, that is to say, failed to conform to the principles laid down in House v The King (1936) 55 CLR 499. However, that submission fails when regard is had to the Full Court’s reasons in paragraphs [12], [26] and [27]. There, the words “discretion”, “erred” and “miscarried” are used, which indicates that the court had in mind the principles in House v The King, which was in fact cited to their Honours.  Accordingly, the third question also does not justify the grant of special leave. 

As a result, the application for special leave is refused with costs. 

AT 2.08 PM THE MATTER WAS CONCLUDED