Whitten v Barrett

[1993] HCATrans 107

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl16 of 1992

B e t w e e n -

RAYMOND LAURENCE WHITTEN

Applicant

and

JEANETTE EVELYN BARRETT

Respondent

Application for special leave

to appeal

DEANE J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 APRIL 1993, AT 10.42 AM

Copyright in the High Court of Australia

Whitten 1 30/4/93

MR D.E. GRIEVE, QC:  May it please Your Honours, I appear

with MR K.P. SMARK, for the applicant. (instructed

by Picone & Co)

MR D.G. LETCHER, QC: If it please Your Honours, I appear

with MR R.M. SCHONELL, for the respondent.

(instructed by Hunt Musgrave & Peach)

DEANE J:	Mr Grieve.
MR GRIEVE:	Your Honours, we have prepared a short outline

of our position.	I will hand it to the Court in
just a moment.

MR LETCHER:  The respondent has taken the same course. If I

might hand up a list and the submissions. The

submissions are not as lengthy as the bundle

indicates they are. It contains some photocopies.

MR GRIEVE:  I am sorry, Your Honour, our housekeeping

problems have now been resolved and I hand up our

outline.

DEANE J:  Mr Grieve, you put the relevance of the concession

or you address the concession right at the end of

your submissions.

MR GRIEVE: That is right.

DEANE J: In terms of this application for special leave, it

should perhaps be right at the commencement of the

submissions.

MR GRIEVE:  Perhaps so. May we address it now, none the

less? The concession that was made involved, at

the hearing at first instance, the solicitor

assuming the burden of proving that the respondent

to this application, who was the applicant at first	instance, was not influenced unduly or otherwise -	in substance, entered into the contract of her own
free will. He set about, as the respondent or
defendant to the proceedings, giving his evidence
with a view to discharging that onus. The
plaintiff/applicant then, to the extent to which she had not dealt with the issue in-chief by way of
anticipation of some such approach, dealt with it in reply.

Now, one, in our submission, can approach the

matter by asking rhetorically, what would have

happened, from an evidentiary viewpoint, had the

concession not been made. One assumes that the

plaintiff/applicant may well have contended,

notwithstanding the absence of the concession, that

the previous Full Court decisions of P's Bill of

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Costs was applicable in any event so that

concession or no, the presumption was applicable.

Even if the plaintiff/applicant had not chosen

to take that course and had assumed herself some

burden of proving actual influence, we submit that

it is difficult, if not impossible, to see how the

trial would have proceeded otherwise than it did,

save only with some minor alteration in sequence,

perhaps, evidence that may have been given in reply

may have been advanced in-chief, but little turns

on that.

As we have said in the outline, even if the

solicitor's counsel had refrained from making the

concession and had endeavoured to assert that the

plaintiff/applicant bore the onus of proving actual

influence, it is likely - perhaps more likely than

not - that the primary judge would have said,

"Well, I reject that contention. P's Bill of Costs

is binding on me. The presumption is applicable.

The case will proceed on that basis, and so be it."

GAUDRON J:  But you confirmed the concession on the appeal,

did you not? Not you personally, but it was

confirmed.

MR GRIEVE:  It was confirmed until the last moment.

GAUDRON J: Until the death knell.

MR GRIEVE:  Yes.

GAUDRON J: At a time when it was clear that there was not

going to be a reopening of the other issues.

MR GRIEVE: That is right.

GAUDRON J: Yes, and the attempt to withdraw it was, in any

event, confined, was it not, to the question

whether any substantial benefit had been received?

MR GRIEVE:  That was the basis upon which the withdrawal was

expressed, namely, that the concession should not

have been made since there was no obvious existence

of a substantial benefit.

GAUDRON J: But now must that not fall away completely once

the costs agreement is construed as involving the

sum, whether or not a solicitor was necessary for

the work or, in fact, did the work? Is there not a

substantial benefit inevitably there?

MR GRIEVE:  We submit not. One cannot assume that without

looking at what actually happened pursuant to the

agreement, and that is why the concession should

never have been made, in our submission. Our

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complaint is that, having withdrawn the concession,

the Full Court - - -

GAUDRON J: Having attempted to withdraw it.

MR GRIEVE:  Yes. Having given notice of our desire to

withdraw it - may I compromise - the Full Court

ignored that and proceeded without ruling on - if

one characterizes it as an application to withdrawn

the concession which required to be determined, to

be either allowed or rejected, the Full Court
simply, as it were, ignored the matter and

proceeded to determine the appeal on the strength

of the concession.

TOOHEY J:  What would happen if leave were granted and the

appeal succeeded, Mr Grieve?

MR GRIEVE:  The end result would be that the judgment of the

primary judge would be restored.

TOOHEY J: Inevitably?

MR GRIEVE: Inevitably, we would submit, because the primary

judge, having looked at the matter on the

assumption that the solicitor had a far heavier

evidentiary burden to discharge than we would

contend he should have had, concluded that he had
discharged it, having heard both sides on the

issue.

Now, we submit that it must follow that if

this appeal were to proceed and be allowed, there

would be no necessity for any rehearing. The

primary judge's review of the evidence would

suffice to indicate that the result would be

appropriately a restoration of his orders.

GAUDRON J: The difficulty really, in one sense, is it not,

is this, that why should a case which has been

fought on one basis, really, and determined on one
basis, be reviewed on a different basis?	Why is it
a suitable vehicle, in essence, for the
consideration of any point?

MR GRIEVE: Yes, I understand Your Honour's question.

GAUDRON J:  And more particularly, when one has not then had

the benefit of earlier argument or, indeed,

judgments of the courts below to the issue which

you would wish to direct attention now?

MR GRIEVE:  The answer, in our respectful submission, is

that the concession made was in the nature of a

concession confined to a question of law. The

practical outcome of the concession was simply

to - - -

Whitten 30/4/93

DEANE J: Is that so, or is it a concession as to a factual

position made by reference to a mistake in

principle? .

MR GRIEVE:  We submit that it is confined to an issue of law

in the sense that the only consequence of the

concession is a shifting of onus.

DEANE J: Well, in one sense, but the consequence of the

concession, looked at from another point of view,

is that it is common ground that there was a

relationship or position of influence.

MR GRIEVE:  Yes.

DEANE J: It is one of those difficult matters which,

depending on which way you look at it, is fact or

law.

MR GRIEVE:  Taking what Your Honour has said on board: we

submit that had the concession not been made, the

plaintiff/applicant may well have contented herself

with relying on a principle of law, recognized, at

least, in P's Bill of Costs, that the presumption

was applicable, or she may have proceeded to set

about proving, in the alternative, a case of actual
influence.

Now, at that stage in the trial, at the close of her case, the solicitor would have presumably set

about discharging any presumption that could be

found to apply as a matter of law, while, at the

same time, answering any case of actual influence

that may have been set up and, no doubt, she then

would have tidied up whatever was left over in

reply.

Now, in practical terms, the existence of the

concession has had no impact upon the eduction of

evidence directed to the ultimate issue, namely,

whether or not influence overbore consent. That
was the ultimate issue which fell for

determination. The granting of a concession,

really, only had the practical effect of, as it

were, altering the batting order and not

otherwise. We submit that in that light the

important questions which arise can and should be

determined by this Court.

In our outline, and we have brought along

copies of the various cases, we flag what appears
to be, on one view, a divergence of the law on this
important doctrine in the United Kingdom and in
this country. We have also identified one or two

cases in this country where judges have perceived

there to be a difference and have gone in differing

directions accordingly.

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The doctrine is, of course, of great

significance. It arises almost daily in bank

litigation over guarantees and the like; husband

and wife cases and so forth, and therefore the

importance of a clarification of that primary issue

could not, in our respectful submission, be

understated. We should hand up the cases. We have

reproduced all but those referred to in paragraph 7

of our outline. In short compass - - -

TOOHEY J: In these cases, Mr Grieve, I suppose the

plaintiff stands or falls by the operation of the

doctrine. There is no sort of intermediate path.

Here, the solicitor is entitled to costs as taxed.

MR GRIEVE: Yes, that is true.

TOOHEY J: So, the argument really is as to whether the

solicitor should recover the difference between

costs as taxed and costs as arise from the

agreement?

MR GRIEVE: Yes.

TOOHEY J:  And that has some bearing, does it not, upon

whether this is an appropriate vehicle?

MR GRIEVE: It does, although - it may have a bearing on the

question of whether the point is of importance
rather than on the question of whether this is an

appropriate vehicle. In our submission,

approaching the problem in that way, we submit that

the point is of demonstrable importance in the

sense that if all costs agreements are to be the

subject of presumptive invalidity, by reason of the

application of the doctrine, then certainly the

solicitors of the country would be troubled by that

proposition, to think that they had - to recover

more than prescribed scale costs, they had to, in

each and every case, contentious or

non-contentious, discharge what has been described

as a heavy onus, of establishing an absence of

equitable fraud, then they would be troubled indeed

and we submit that that is what the case from which

we seek leave to appeal stands for and we submit
that that is demonstrably wrong and should be

corrected by this Court.

TOOHEY J:  Do you mean stands for independent of the

concession?

MR GRIEVE: Yes, in the sense that it stands for the

proposition that it is consistent with the earlier
decision, P's Bill of Costs, which certainly stands

for that proposition. It may be said, I suppose,

that we really seek to challenge the continuing

Whitten 6 30/4/93

correctness of the earlier decision, P's Bill of

Costs. Those are our submissions, Your Honours.

DEANE J:  The Court need not trouble you, Mr Letcher.

In all the circumstances of this case,

including the concession made on behalf of the

applicant before the trial judge that the matter

was to be determined on the basis of an applicable

presumption of undue influence, we do not think
that the case constitutes an appropriate vehicle

for the consideration of a question of law which

the applicant wishes to raise on an appeal to this

Court.

Accordingly, the application for special leave

to appeal is refused.

MR LETCHER:  We ask for costs, Your Honour.

MR GRIEVE: That follows, Your Honour.

DEANE J:  The application is refused with costs.

Mr Letcher, the Court did not pay regard to

your submissions which is why we did not extend to

Mr Grieve the opportunity of replying to them.

That being so, I will return them to you.

AT 11.02 AM THE MATTER WAS ADJOURNED SINE DIE

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