Wayland v Tonkin

[2003] HCATrans 297

[2003] HCATrans 297

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A235 of 2002

B e t w e e n -

ELLIS BRYSON JOHN WAYLAND

Applicant

and

WALTER REGINALD TONKIN

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 14 AUGUST 2003, AT 12.01 PM

Copyright in the High Court of Australia

MR J.W.K. BURNSIDE, QC:   May it please the Court, I appear with my learned friend, MR M.B. MANETTA, for the applicant.  (instructed by Black Cleland)

MR P.A. McNAMARA, QC:   May it please the Court, I appear for the respondent.  (instructed by David Deakin Davies & Associates)

GLEESON CJ:   Yes, Mr Burnside.

MR BURNSIDE:   Your Honours, the Full Court refused to extend time within which an appeal could be brought and it is difficult to understand precisely the basis on which they did it.

GLEESON CJ:   I thought they did it on the basis that there was no proper explanation for the delay and there was no merit in the proposed appeal.

MR BURNSIDE:   They seem to be two independent bases, which, in our submission, is the wrong way to approach it.  The Chief Justice delivered reasons, with which Justice Perry agreed, and that must be taken as the majority reason for the court’s decision.  The Chief Justice said that he did not think there was a sufficient explanation of the delay of two months and that accordingly time should not be extended and he then went on to consider the merits as if it were an independent basis on which leave should be refused.  In our submission, that approach is not the approach which should be adopted and it is not the approach which this Court has identified in Jackamarra v Krakouer.

Can I make that point good by taking your Honours to paragraph 35 at application book page 56, “has offered no adequate explanation”, and then paragraph 37:

I am not satisfied that this is a proper case in which to grant an extension of time . . . having regard to the substantial delay in filing . . . and in setting down the appeal once that had been done.

An explanation was offered.  His Honour said that it was unpersuasive, although it is difficult, with respect, to see why that is so.  The time involved was two months, which is not, in our submission, a very substantial time in light of the explanation that was proffered.  But the point is that his Honour decides at paragraph 37 that this is not a proper case in which to grant an extension and he then goes on to decide that there is no merit in the appeal but does so by reference to only one of the grounds.  He does identify each of the three grounds but discusses in detail only one of the grounds, and that discussion begins at paragraph 47 at application book page 58.

In our submission, the process has already gone wrong at that point, regardless what one thinks about the ground which is discussed in some detail from that part of his judgment onwards and is independently discussed in the reasons of Justice Debelle.

GLEESON CJ:   On the subject of merit referred to by the Chief Justice, Mr Burnside, what do you say about what appears on page 52 in paragraphs 11 and 14?

MR BURNSIDE:   That, your Honour, is part of the substance that would have been dealt with in the appeal.  His Honour has treated that as if that were beyond the reach of an appellate court, but to do that is, with respect, to put the cart before the horse.  He is, in substance, deciding a factual question that would arise in the appeal inferentially as part of the foundation for denying leave, although, if I may say so, this seems to be more a narrative of what had happened rather than an analysis of whether grounds for an extension of time had been made out.  Certainly, it does not appear ‑ ‑ ‑

GLEESON CJ:   The proposed grounds of appeal are those that appear on page 45, are they?

MR BURNSIDE:   Yes, that is so.  Yes, I understood your question as being the proposed grounds in the Full Court.

GLEESON CJ:   Yes, your proposed grounds of appeal to the Full Court are those on page 45.

MR BURNSIDE:   Yes.

GLEESON CJ:   Do they contain any challenge to the findings of fact to which I have just referred?

MR BURNSIDE:   It is bound up in the second ground, which is the alternative claim for misleading and deceptive conduct, because, as I understand it, the suggestion that there was discussion about contribution before the payment and before the deed was the foundation for an allegation by the respondent that the applicant had engaged in misleading and deceptive conduct ‑ in effect, standing by and letting him walk into error.  However, the trial judge found as a fact that the conduct had not been relied upon.  Apparently Mr Tonkin conceded in cross‑examination that he would have done the same thing if Mr Wayland had acted differently than is set out in those paragraphs.

The Full Court said almost nothing about the misleading and deceptive conduct allegation, or finding I should say.  In particular, they overlooked the fact that there was no reliance it would seem and they overlooked the fact that the allegation of misleading conduct was brought outside the time prescribed by the Act.  The relevant provision mirrors section 52 of the Trade Practices Act which has the effect that instead of it being a continuing cause of action which faces a statutory bar, it is a cause of action which has an expiry date and after that date there is no possibility of extending time.

Accordingly, the misleading and deceptive conduct claim could not have succeeded, both on the facts and because it was brought out of time.  That is a matter which the Full Court, with respect, appears to have glossed over because the only discussion of that ground is at paragraphs 43 and 44.  At 44 his Honour acknowledges that we had contended:

that the Judge erred in finding that this alternative claim was made out, and in particular contends that the evidence did not support a finding that any allegedly misleading and deceptive conduct was relied upon by the plaintiff –

That is a very long way about answering your question, I hope it answers it. 

Your Honours, what the court below has done, in our submission, is to decide on the wrong test that leave would not be given to extend time and has then dealt extensively with one, but not the other two, grounds which were sought to be advanced.  The result, in our submission, is a denial of an otherwise right of appeal in circumstances where the relevant test has not been applied and they have gone on to decide a matter which, if it was relevant to decide it, would only be relevant if they had dealt with each of the other grounds of appeal and had dealt with the overall merits of the case as part of the single process of determining whether a case for an extension of time had been made out.

As things have developed, in our submission, their discretion miscarried in a fundamentally important way and if matters stand there then of course the right of appeal is forever lost.  That said, in our submission, the ground that was dealt with extensively in the Court of Appeal is one of general importance and one on which, in our submission, the authorities are divided. 

The Full Court thought the matter was governed by Bowry v Walker.  It was contended on the contrary that it was governed by Griffith v Wade and, in our submission, there is considerable force in the point that arises from Griffith v Wade because what occurred in this case was that the creditor released not only the debtor but also the sureties.  At the time of

that release a payment had been made by one surety.  At the time the payment was made it is absolutely clear that it amounted to less than that surety’s share of the secured obligation.

It is a curious thing that the trial judge found otherwise because, as a matter of arithmetic, one can see that the $235,000 paid comes to less than a third of the $781,000 which was then secured.  So, at the time of the payment, the right to seek contribution, in our submission, had not arisen.  At the time of the deed the rights of the creditor, the debtor and the sureties was settled by the deed. 

It is clear enough, in our submission, that if the debtor is released in a deed in which the sureties participate, the sureties cannot thereafter look to the debtor to recoup any payment made by them.  If they cannot do that, then, in our submission, it follows that they cannot look to each other for contribution because the transaction they have agreed to secure is not a transaction in which they will be liable to pay but unable to recoup.

For those reasons, in our submission, the authority of Griffith v Wade covered the point.  It has not been dealt with in the High Court and, in our submission, special leave should go.  Unless there is anything else I can add, those are our submissions.

GLEESON CJ:   Thank you, Mr Burnside.  We do not need to hear you, Mr McNamara.

This is an application for special leave to appeal from a discretionary decision of the Full Court of the Supreme Court of South Australia refusing an extension of time for leave to appeal from a decision of a single judge.  The members of the Full Court held that there was no proper explanation for the delay and that there was, in any event, no merit in the proposed appeal.

As to the first ground of the decision, it turned on the particular facts and circumstances of the case.  As to the second ground of the decision, it also turned to a considerable extent on the particular facts and circumstances, although it also involved wider questions of general equitable principle.

We are not persuaded that any error has been shown in the conclusion reached by the Full Court or that the discretion of the Full Court miscarried and the application is refused with costs.

AT 12.14 PM THE MATTER WAS CONCLUDED