Trau v University of Sydney

[1995] HCATrans 351

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S187 of 1994 and No S55 of 1995

B e t w e e n -

JERZY TRAU

Applicant

and

UNIVERSITY OF SYDNEY

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 24 NOVEMBER 1995, AT 11.38 AM

Copyright in the High Court of Australia

MR R.W. CAMERON:   If it please your Honours, I appear for the applicant in both those matters.  (appearing on behalf of the applicant)

MR M.F. HOLMES, QC:   May it please the Court, I appear for the respondent in both those matters with MRS J.E. STUCKEY‑CLARKE.  (instructed by Minter Ellison)

MR CAMERON:   Your Honours, it is better probably to start with the second of the applications.  That is the one, I think, at page 132 of the application book.  That relates to the decision of the Court of Appeal dismissing the appeal as being incompetent for want of leave. 

TOOHEY J:   It is not, is it?

MR CAMERON:   There were two - the first decision was on 22 August 1995.  That appears at pages 58 to 60 of the book, the judgment.

TOOHEY J:   But there are really two matters in issue, are there not:  one is the refusal of the Court of Appeal to grant an extension for time on the footing that leave to appeal was required, and the earlier decision of the Court of Appeal that by reason of the fact that the court was dealing with an application for leave to amend a statement of claim and an application for summary judgment, that on either footing leave was required.

MR CAMERON:   That is so, your Honour, yes, and I wish to start with the earlier judgment because we maintain that we did have an appeal as of right and they were wrong there, and therefore the second application was not really ever necessary.

TOOHEY J:   And you say that you had an appeal as of right in respect of that earlier decision, whether or not the adjudication against your client was a refusal to grant leave to amend the statement of claim or the making of summary judgment.

MR CAMERON:   That is so.  We say it was not actually a summary judgment order that was made; it was a final order.  It dismissed everything, all the proceedings, generally and wholly, totally.  So that where the applicant’s rights were to apply to amend, relying on Part 20 rules 4 and 5 of the Supreme Court Rules, there was nothing left to amend and therefore no right ever to apply again.  In short, those orders effectively disposed of all issues between the parties.  The legal effect of those orders was that no further application could be made because, as I have said, there was nothing left to amend.  Bearing in mind that all the statements of claim had been dismissed over the years, there was, as it were, nothing left but a blank sheet of paper in proceedings which had been commenced back in November 1980.  This applicant’s rights depended totally upon his being able to bring an application under Part 20 rules 4 and 5 to amend, to file an amended statement of claim in those proceedings.

As to when his cause of action became extinguished by operation of section 63 of the Limitation Act was decided by his Honour Mr Justice Smart and I think accepted by the Courts of Appeal on both occasions.  But we wish to put that in issue.  But if I could just briefly quickly go back to the first point:  the decision to strike out or refuse the application to amend was, clearly, interlocutory, there is no dispute about that, at the time it was made.  When the second order was made, on the application to dismiss all the applications, that being a final order, the interlocutory orders are picked up by it. 

If your Honours can go to Part 13 rule 5 ‑ ‑ ‑

TOOHEY J:   Just before we do, so I understand what is at issue, there were two orders made, were there not, one on 17 March, which appears at page 36 which, in effect, is a refusal of leave to amend the statement of claim.

MR CAMERON:   That is right.

TOOHEY J:   Then on page 37 there is an order that the proceedings be dismissed, which I understood to be an order made pursuant to an application by the then defendant for summary judgment.

MR CAMERON:   It was an application for summary disposal under Part 13 rule 5.

TOOHEY J:   Is there a difference?

MR CAMERON:   There is.  Part 13 is headed, Summary Disposal.  Division 1 is Summary Judgment.  That is what plaintiffs get when they apply and Division 2 relates to Summary Stay or Dismissal.

TOOHEY J:   Do we have a copy of this material, Mr Cameron?

MR CAMERON:   The Supreme Court Act, I think.

TOOHEY J:   I have something from Ritchie, but it does not, I think, cover the matter that you are speaking of.

MR CAMERON:   Perhaps I might just hand up my copy of the rules.  The point is a very short one, your Honours.  Your Honours will see the heading, Part 13, relates to both Divisions 1 and 2.  Division 1, which is a summary judgment heading, concerns plaintiffs.  It is the plaintiff who is entitled to an order for summary judgment.  Division 2 relates to defendants and cross-defendants and ‑ ‑ ‑

TOOHEY J:   But it is still dealing with a final judgment, is it not?

MR CAMERON:   When one comes to the amendment to section 101 of the Act, which added summary judgment only, not summary disposal, as being a matter in respect of which leave must be required, it still left the summary disposal part in this question of whether or not it was interlocutory or final.  So that where it was said before the court who dealt with this application, where the applicant was not represented but where I think my learned friend had agreed with the proposition being put by the court that this was an application for summary judgment and therefore that they must dismiss it for want of leave, that that was wrong.

TOOHEY J:   Now you are taking us forward to the application for leave, are you?

MR CAMERON:   Yes.  That that was wrong, that the appeal was on and it was there as of right.  What the court should have been concerned with, in my respectful submission ‑ ‑ ‑

BRENNAN CJ:   What is it that gives a right of appeal from an order under Division 2?

MR CAMERON:   Whether it is interlocutory or not under section 101.

BRENNAN CJ:   Of the Supreme Court Act?

MR CAMERON:   Yes.  It is an appeal as of right if it is not interlocutory, otherwise leave is required.  But in the case of Division 1, it must be by leave because they put Division 1 in but not Division 2.

BRENNAN CJ:   Where, in section 101?

MR CAMERON:   Yes.  Section 101 did not contain the relevant portion.

DAWSON J:   Section 101(2) ‑ ‑ ‑

MR CAMERON:   I think it is (l), yes.  That was added later, after the rules were enacted, 101(2)(l) of the Supreme Court Act 1970. It says there that:

An appeal shall not lie to the Court of Appeal from.....

(l) a judgment or order of the Court in a Division on an application for summary judgment under the rules.

So it is confined to the plaintiffs.

TOOHEY J:   That may be true but it does not seem to be in the way the Court of Appeal looked at it.  They seem to have used summary judgment as being an expression that covers either an application by a plaintiff for summary judgment or an application by a defendant to dispose of the matter summarily.

MR CAMERON:   I know, your Honour, and that is what has brought us here.  In my submission they were wrong on that, that we did have an appeal as of right.  That, of course, involves the next question of whether or not it is within the interlocutory or whether it is final.  The test here is that, as I have said, that the second order made by his Honour Mr Justice Smart clearly, in disposing of all the applications in the context where the statute of limitations would extinguish the cause of action but for Part 20 rule 5, then there is really ‑ ‑ ‑

BRENNAN CJ:   This is a very short and simple point.

MR CAMERON:   It is.

TOOHEY J:   You really take your stand - as I am not suggesting you are not entitled to - on the language of section 101 and say, well, the only reference to summary judgment in the rules is on an application by a plaintiff.

MR CAMERON:   Yes.

TOOHEY J:   And that may well be right.

MR CAMERON:   And it is very very important.

TOOHEY J:   One might wonder whether that was the intention.  That is another matter.

MR CAMERON:   But it is very very important for us, as your Honours would appreciate.

BRENNAN CJ:   Perhaps we should hear what your opponent has to say.

MR CAMERON:   May it please the Court.

MR HOLMES:   Your Honours, this question as to the distinction between Division 1 and Division 2 is a matter which is a very short point and has not been aired before the Court of Appeal either on the first occasion when it was before the court on 22 August.  It has not been ventilated ‑ ‑ ‑

BRENNAN CJ:   Would you come to the rostrum, Mr Holmes.

MR HOLMES:   If I could just confine myself to the discrete question as to whether the provisions of section 101(2)(l) relate purely to Division 1 or Division 2.  It is a matter which was not debated before the Court of Appeal on the first occasion. Dr Trau on that occasion was representing himself.  On that occasion the matter had come to the court to deal with that very question and there had been correspondence between the legal representatives of Dr Trau where they had referred to another basis for the requirement of leave.  That was that it was finally disposing of the matter, not that it was a summary disposal as distinct from a summary judgment.  So that the point that is now sought to be aired was not taken by Dr Trau’s legal advisers when they joined issue and their letter to the Registrar and to the University is in the appeal book.  So it came then to the Court of Appeal ‑ ‑ ‑

BRENNAN CJ:   Where is that?

MR HOLMES:   Page 47.  So at a time when Dr Trau was legally represented by both solicitors and counsel the letter on page 47 is in response to page 46 which specifically draws their attention to the very provision which is now being the subject of discussion before your Honours, that is section 101(2)(l).  The response was not that 101(2)(l) is, as is now sought to be put, only relating to summary judgment but not summary disposal but there is a reference to the case of Southern Cross v Allrisks Insurance not to the question of statutory construction.  So that matter, when it came before the Court of Appeal on the first occasion, the Court of Appeal had the benefit of Dr Trau’s appearance by himself and also that letter was before the Court of Appeal. 

BRENNAN CJ:   But the question was clearly joined there.  The University is saying that it is incompetent without leave because the case falls within paragraph (l).

MR HOLMES:   Sorry, the Registrar said it was incompetent and the University accepted that.

BRENNAN CJ:   Sorry, the Registrar.

MR HOLMES:   The Registrar wrote to Cashman & Partners, Dr Trau’s solicitors, and Dr Trau’s solicitors and joined issue without the particular matter that is adverted to, namely ‑ ‑ ‑

BRENNAN CJ:   The particular matter is that the section is outside the paragraph.

MR HOLMES:   Your Honour, there is the reference in ‑ ‑ ‑

BRENNAN CJ:   Let us stick to the substance of this.  Is it outside the paragraph or not, in your submission?

MR HOLMES:   Your Honour, in my submission it is within the paragraph but it is of no matter anyway and also it is not a reason for the granting of special leave.  So if I can proceed to your Honours being against me on the first point, and we assume that it is outside of the paragraph, I then come to the Court of Appeal’s decision on the first occasion.

TOOHEY J:   Sorry, just before you do that, what does Southern Cross have to say about the matter?  Anything that is directly in point?  I do not want you to take us to it if it is not germane.

MR HOLMES:   It is not germane to the summary disposal, summary judgment issue.  It is in relation to limitations generally.  It does not deal with the construction of the rule in question.  As my junior reminds me, it dealt with a previous version of the rules, so it clearly was not a matter which was being highlighted by the legal representatives.

TOOHEY J:   But it did deal with the question of what a final order meant, did it not?

MR HOLMES:   Generally, yes.

TOOHEY J:   It may be that the parties passed each other in the night, but the argument seems to have been put on behalf of the present applicant in that letter that the orders were final orders, not by reason of the rules but - I am sorry, I put that badly - that leave was not required, not by reason of the rules but because the orders that had been made were final orders.

MR HOLMES:   Yes.  Could I just move forward, because I wish to accept your Honours against me on the question as to whether or not it is within and outside the definition, because we then have the Court of Appeal making its decision on 22 August 1994.  The present applicant, rather than appeal from that decision, then brought an application for leave to appeal, and that comes to the second judgment.  The second judgment of 28 November 1994 considered the appeal that is proposed to be put.  So assume the matter is an appeal as of right and the Court of Appeal was wrong, the Court of Appeal then on the second occasion, 28 November, looked at the appeal of Dr Trau.

If I could take your Honours to the application book at page 77, at the top of the page, Justice Mahoney said:

In the present case it is appropriate to consider whether, if leave to appeal was granted, the appeal would have any real and substantial prospect of success and whether, given all the circumstances of this case, leave to appeal should be granted.

Now, your Honour the Chief Justice, if we had a simple question of the construction of the rules and the Court of Appeal has got it wrong and it has to go back to the Court of Appeal to consider the appeal on the merits, this finding finds that the prospects of appeal are such that there are no real and substantial prospects of appeal, even if there was an appeal as of right.

TOOHEY J:   But that is the sort of finding that was made in the context of an application for an extension of time in which to seek leave to appeal, was it not?

MR HOLMES:   Yes, but, your Honour ‑ ‑ ‑

TOOHEY J:   Did it follow a debate between the parties as to the merits?

MR HOLMES:   Yes, it did.  If I take you to the middle of page 77 - perhaps I should lead up to that by starting at line 6.

TOOHEY J:   Page 75 is where the court expresses its view as to the merits of the matter.

MR HOLMES:   Yes, but your Honour asked me about whether or not the court invited submissions.

TOOHEY J:   Yes, I did.

MR HOLMES:   At page 77, line 6 I read:

I am not satisfied by any means that the judgment of Smart J, on which leave to appeal is sought, was wrong. 

Then if we go to line 14, and I particularly rely upon this:

The Court is entitled to invite the parties to indicate what would be the grounds of the appeal and the basis on which it is said that there is a reasonable prospect of success.  The Court has done this in the present case. 

Now, on that occasion Dr Trau was represented by Mr Cameron of counsel, so Mr Cameron of counsel articulated the grounds of appeal which he would have on an appeal as of right.  The court said:

I am by no means satisfied that there would be any real chance of the appeal succeeding.

Now, your Honours, we have here an application for an extension of time to appeal from the earlier decision.  So if, on that matter, obviously there is a very discrete question and it may have to go back to the Court of Appeal if the University is wrong, but if that is so, then why should it go back to the Court of Appeal when there is no real and substantial prospects of success on the appeal as of right.

Further, in Gallo v Dawson this Court has said before we get to that, even though it may be a discrete question, when one is considering an application for the granting of an extension of time within which to apply for an appeal, one has to look at all of the circumstances of the case, including the history of the litigation.  Now, this history of the litigation in this case, in our submission, would dictate against the granting of an appeal and that there is no injustice in denying the applicant to raise a construction of the rules where there are no real prospects of success and where there has been an avalanche of litigation in numerous courts on previous occasions and where this Court would be denied the views of the Court of Appeal as to the meaning of its own rules when this Court comes to consider the question of the rules of the Supreme Court.

TOOHEY J:   One of the problems with that argument is that although the court did - Justice Mahoney said I am by no means satisfied that there would be any real chance of the appeal succeeding, that was not explicated in any way, although one can go back to page 75 where there is reference to the decision of the primary judge, that:

he did not accept that it was arguable that any of the relevant terms pleaded.....could be inferred from the circumstances of the matter -

and secondly, that the limitation period operated to bar the claim.

MR HOLMES:   Yes.  In my summary of argument I did highlight the chronology which appears at page 71 and following.  I hesitate to take your Honours to that but it is a matter where, if the Court is contemplating the granting of an extension of time, one needs to look at the circumstances of the case.

DAWSON J:   The difficulty about that is that the court is exercising a discretion it does not have because if, in fact, there was no need to have leave to appeal, there was no need to apply for an extension of time and there is no discretion in the court.  That is the difficulty.

MR HOLMES:   We would accept that, your Honour, but on an appeal as to whether or not special leave should be granted so that it could go back to the Court of Appeal, one has to have regard not only to that discrete question but to the indicia as to the likely result and also the history of the litigation.  If the litigation ‑ ‑ ‑

DAWSON J:   One of the bases of the grant of special leave in this Court is the maintenance of regularity in the courts below and there has been an irregularity here, has there not?

MR HOLMES:   As presently advised, we would join issue as to whether or not there has been any irregularity because we would wish to be heard on that.  It is not a matter which anybody has turned their minds to this discrete apparent dichotomy.  It is not something that any of the appeal judges dealt with or which the University has  had time to contemplate, the respondent.

TOOHEY J:   Your argument is, I take it, it is not a special leave point because, granted for the purpose of argument that there was an irregularity, what is the point of sending it back to fail again.

MR HOLMES:   What is the point of sending it back to fail again, that is the first point.  The second point is, this Court has not had the benefit of a reasoned argument before.  The third point is that they did not appeal from that decision to this Court.

TOOHEY J:   That is, did not appeal from the earlier ‑ ‑ ‑

MR HOLMES:   The earlier decision, yes.  Can I address one matter that Justice Dawson raised in relation to there was an irregularity.  Accepting ‑ ‑ ‑

DAWSON J:   I was putting that to you, yes.  You do not accept that.

MR HOLMES:   We do not accept that, but if we were to accept it, your Honour, the applicant on this special leave application chose not to appeal but chose, after having considered the matter with its legal representatives, not to raise that discrete question but then to go back and to apply for leave within which to appeal and to extend the time within which to apply for an appeal.

DAWSON J:   That is understandable, is it not?

MR HOLMES:   Not necessarily, your Honour.  If the point is such a discrete point and they had got it so wrong and that is the matter that was in issue, why would they not then say that is an irregularity.  They did not.  They accepted that ruling and then they went back and said, this is a case in which leave is required.

TOOHEY J:   They might have been in some difficulty because they had not raised it before the court below, but that is another matter.

MR HOLMES:   That has not been advanced as to any reason why they chose that, nor was that aired before the Court of Appeal so that the Court of Appeal could debate it.  So if I could just summarise the reasons:  it is not wrong, but if it is wrong, they accepted it.  And if I could just go briefly back to the history of the litigation set out on page 71 through to 74, your Honours will see that the events giving rise to the proceedings occurred in 1979.  They originally started with a statement of claim which was struck out in 1981 and leave to file within 28 days.  That was not done and several years later, after a number of pieces of litigation which were referred to elsewhere, a further amended statement of claim was filed.  That was struck out.  Then there was a third.  That went to Mr Justice Brownie.  Then leave was granted to file a third amended statement of claim subject to conditions.  Those conditions were not satisfied when there was a further attempt, and a fourth statement of claim was presented.  Then that went up

to the Court of Appeal and then the present proceedings were started and that led to the proceedings before Mr Justice Smart and the first appeal.

DAWSON J:    So your point is that if there was any irregularity, having accepted that irregularity, there is no excuse for the future conduct of the applicant which would justify him being granted relief.

MR HOLMES:   Yes, and particularly having regard to the history of this matter.  It is not a case where he is being denied justice in an attempt to put a pleaded case before the court.  If one looks at pages 71 to 74, one will see 15 years of putting cases before this court.

DAWSON J:   And I suppose you would face up to the situation by saying, look, even if it went back and it was a question of an appeal of right, he must ultimately fail.

MR HOLMES:   Yes.  They are my submissions.

BRENNAN CJ:   Mr Cameron, what is your reply.  And I think you are entitled to a longer time than the usual time for reply, if you wish to make one, because obviously you must deal with the question of the utility of the appeal if one were granted.  Perhaps 10 minutes, Mr Cameron, if you need it.

MR CAMERON:   I think I can hopefully be a bit shorter than that.  At pages 38 to 39 the appeal that was dismissed as incompetent is set out.  Following that decision, I think, as your Honours have observed, the only remaining rights that the applicant had in the Supreme Court were to apply for an extension of time within which to bring the application for leave to appeal.  To have come direct to this Court to argue the point would still have left him with some rights which could have been disposed of by the Supreme Court.  So my submission is he had no choice but to bring that second application before the Court for extension and for leave.

Now, in the ultimate, what had happened, as appears from the judgment before the Court of Appeal on the second occasion, was that they were concerned to see what the grounds of appeal were.  In those grounds, the substantial issue between the parties, as it boils down in the end, is whether or not, assuming that there was a promise of the sort alleged between these parties, that breach of that promise, anticipatory breach, was ever in fact communicated to the applicant.  If so, what did he elect to do.  He has two rights:  to accept the repudiation, sue for damages, in which case the clock starts to tick from the point of view of the Limitations Act, or in this instance the submission is he had another right, that is to say he could have either injuncted or sued for specific performance.

The promise was to take all steps that were necessary to fill a vacant position in the University.  That necessarily involved an advertisement for which the applicant was amply qualified to apply for.  The decision was taken within the University to take those steps and then, for reasons which have not yet become apparent, we do not know how it happened or whether in fact the University authorised a withdrawal or reversal of that decision, but the advertisement never appeared.  This was in a context where the employment of the applicant had been rolled over, as it were, on a couple of occasions, to suit the convenience of the University.

Now, contemporaneous with the decision being taken to fill this position by means of advertisement, a letter was also written to the applicant to inform him that there would be no more temporary appointments for him and it went on then to say, dealing with the second aspect, that if you are not successful, in effect, with your application then we will still pay your fares and removal expenses back to the United States.  So that that letter, which was written I think on 18 July, is the sole piece of evidence thus far adduced upon which any claim could rest that the limitations period began to expire.  That is to say that that constituted the communication of this anticipatory breach.

Now, whether or not it constitutes that is purely, in our respectful submission, and always has been, a matter of evidence; a matter for the jury to decide.  It  has never got to that point but it seems as if his Honour Mr Justice Meagher did accept that as being unequivocally notice of determination of the contract or repudiation of the contract.  They are the issues and, strangely enough, before the Court of Appeal, if it goes back, on the basis that it is a final decision, then those matters will be agitated, that is to say what is the law about communications of the repudiations of contracts; does the time begin to run for purposes of Limitation Act section 68A, from the time of the election - that is the notice of the repudiation.  If it is interlocutory, then the issue before the Court of Appeal would be then whether or not the case was arguable, that is fit to go before the jury.

In my submission the irregularity that has occurred was fatal and deprived the applicant from agitating any of those matters.  He has not yet been able to do so.  There has never been a defence filed to any statement of claim that has been filed by him.  It has always throughout been met by motions to strike it out and for the final judgment on the basis that there was never a cause of action because it was defeated by statute.  Yet there has

never been evidence to indicate that that could apply, except for that single letter.

Those would be my submissions.  The source of all the problems was that irregularity.  There was an appeal as of right and that the balance of the justice must be to overcome that and to enable this applicant to go back and have his day in court on the evidence.

BRENNAN CJ:   Thank you, Mr Cameron.

In the first of these applications there is substantial reason to doubt the decision of the Court of Appeal, that the appeal to that court from an order made under Division 2 of Part 13 of the Rules falls within paragraph (l) of section 101(1) of the Supreme Court Act 1970 (NSW). However, having regard to the long and troubled history of this litigation, an appeal from that decision of the Court of Appeal would not restore to the applicant any right which is likely to be of any legitimate benefit of a substantive nature. Accordingly special leave should be refused on both applications.

AT 12.15 PM THE MATTER WAS CONCLUDED