Yonan v Figliuzzi

[2006] HCATrans 525

[2006] HCATrans 525

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S47 of 2006

B e t w e e n -

LANA YONAN

Applicant

and

GIUSEPPE FIGLIUZZI

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 29 SEPTEMBER 2006, AT 9.45 AM

Copyright in the High Court of Australia

MR J.L. GLISSAN, QC:   If the Court pleases, I appear with my learned friend, MR S.G. BARNES, for the applicant.  (instructed by Ron Kramer Associates)

MR R.R. BARTLETT, SC:   If the Court pleases, I appear with my learned friend, MR A.A. CAPELIN, for the respondent.  (instructed by TL Lawyers)

GLEESON CJ:   Yes, Mr Glissan.

MR GLISSAN:   Your Honours, this raises a special leave question which invites the Court’s reconsideration of the principles established about 70 years ago in House v The King and the consequent decisions of the Court of Appeal in this State in cases called Buller and Diaz, where it appears that a second strain of authority is developing in relation to the exercise of a discretion.  The motivating section is the operation of the enlargement of time provisions in the Motor Accidents Act, sections 40 and 40(2), but the point is crystallised, if I could take your Honours to the application book at page 42 in the judgment of the majority of Justice Tobias, where he picks up part of the decision in this Court in Russo of Justice McHugh.  Justice McHugh was part of the majority in Russo v Aiello but of course his reasoning was somewhat different to the balance of the Court in the way he arrived at his conclusion.  It was he alone who considered the operation of the discretion in that case.

If your Honours look at the first five or so lines at 42 of the application book, his Honour says relevantly what is involved in the exercise of the matter under consideration in section 40 is:

“an intellectual construct involving a value judgment, a judgment on which reasonable persons may have widely different views.  It is therefore properly described as a discretionary judgment.

That applies 70 years of the law as this Court has pronounced it since House v The King.  What Justice Tobias goes on to say and goes on to do is to create a separate and different issue whereby a different concept is imported into the exercise of the discretion by distinguishing the section 40 discretion in the way he says in paragraph 68 that that observation is inconsistent with the observation of Justice Giles in Buller.  That passage relevantly is set out two pages back in the application book at paragraph 61 of his Honour’s judgment.

GLEESON CJ:   I am just not sure I understand the relevance of this part of the judgment to his Honour’s decision.  Correct me if I am wrong, but I thought that the majority in the Court of Appeal attributed, rightly or wrongly, to the primary judge a failure to address a particular issue.  They said that the primary judge concentrated only on one aspect of the delay and ignored another aspect of the delay.

MR GLISSAN:   That is quite so.

GLEESON CJ:   If they were right to conclude that the primary judge failed to address a relevant question, they then said, as I understand them, “Well, we have to decide the matter for ourselves”.

MR GLISSAN:   Indeed, they did that by consent, your Honour should be aware.

GLEESON CJ:   Then how does House v The King get into it?

MR GLISSAN:   It gets into it in this way, your Honour.  The central issue in that determination – perhaps the most convenient way of summarising it for the Court is to go to Justice Santow’s dissenting judgment in which he sets out clearly and in terms the argument which we seek to make here.  The relevant passage is best found at paragraph 36 of his Honour’s judgment at page 31 of the application book where his Honour:

highlights how difficult it is to be satisfied that the decision of the primary judge was clearly wrong in her discretionary determination . . . I consider that this is the kind of case where a court of appeal is not justified in interfering with the discretionary decision appealed from –

One issue between Justice Santow and the majority was the way the reasons of the trial judge at first instance were approached.  His Honour said he preferred to consider the question in terms of whether there was a sufficiency of reasons, Justice Tobias taking the view it was devoid of any reasons to support it.

One needs then to go to the two passages in the judgment where the primary judge’s reasons are set out.  It is perhaps more convenient to do that in the application book in Justice Santow’s judgment than it is to go to the primary judge’s reasons, although they are in the application book.  They are at page 24 of the book, paragraph 18 of the judgment.  The distinction between the majority and Justice Santow is there clearly set out in paragraph 19 where, relying on submissions that were made in that court, his Honour said:

It is clear from [45] of the Judgment . . . that the trial judge had clearly before her the issue of the reasonable person test in counsel’s addresses, that it was unlikely in the extreme that she overlooked the reasonable person test when delivering her judgment ex tempore immediately after . . . That must mean both limbs of the statutory definition were there addressed.

If your Honours look at paragraphs 44 and 45 which are at the foot of page 24 of the application book, her Honour’s reasoning – and it would be impossible to argue that her Honour’s reasoning is as clear and cogent as one would wish but it is there set out.  She says simply and in terms:

Applying the Motor Accident Act to the facts I find, I conclude that the plaintiff’s explanation to this Court for her delay . . . is a full and satisfactory explanation as provided in that Act.

We would propose that the balance of Justice Santow’s reasoning which is based on a long established line of authority in relation to reasons ought to be preferred to the majority so far as that is concerned.  If that step is taken, then the answer to your Honour the Chief Justice’s question is this, that the question of the discretion is clearly activated. 

Was it open to the court in the light of a long and detailed judgment where her Honour made extensive findings of fact over many pages and paragraphs arriving at conclusions, made the appropriate findings as to the quality of evidence, chose between passages of evidence which she accepted and did not accept and took all of those advantages that a primary judge had and made that clear in her reasoning, is it then open to a court of appeal simply to re‑exercise a discretion because it would have arrived at a different conclusion itself?  That runs entirely counter not only to House but to the other cases.

Again, we draw, as your Honours would understand, very largely for these submissions from what Justice Santow said.  He referred to Mace v Murray, a decision of Sir Owen Dixon, and to Atkinson.  They are set out at pages 30 and 31 of the application book so far as they are relevant and they activate the question posed by the judgment of Justice McHugh in Russo v Aiello whether or not this appeal could only have been resolved against the plaintiff on the basis of the well‑known principles contained in an appeal against a discretionary judgment.

So in a sense the question of the sufficiency of reasons or whether or not there are reasons in the context of the whole judgment of the primary judge is a false issue.  The answer to your Honour’s question is that House v The King is definitely enlivened in this matter in the way that Justice Santow sets out in his judgment.  It does raise a matter that is of importance and that transcends simply the application of the Motor Accidents Act.  As his Honour points out, there are other statutes in New South Wales which…..the same kind of consideration and the expression

“full and satisfactory explanation”, as this Court said in Russo, is not a hendiadys; it is two separate limbs which must be separately considered and separately answered.

Her Honour made clear findings in relation to both limbs in relation to “full explanation” for the whole of the period and in relation to “satisfactory explanation” she gave specific reasons in relation to the latter period but not the former period.  It could not therefore properly be concluded that she had not turned her mind to the ordinary earlier period in the factual circumstances which obtained in the case.

That, however, is more a matter for argument at appeal than an argument here on the special leave application.  The point which we seek to agitate derived from the reasoning of Justice Santow is that there are not two separate standards that have to be considered in determining whether or not a discretionary judgment is overturned but there is but one in the common law of Australia, that set out in House v The King.  That, frankly, is the point.  Either it is sufficient to obtain a grant of leave or it is not, but we say it is an important matter that ought properly to be resolved.  If there are to be two standards, the inescapable conclusion if the Tobias judgment is to be the controlling decision in New South Wales is that there are two standards.  We say, with respect, that if there are to be two standards, this Court should say it, not the Court of Appeal of New South Wales.

GLEESON CJ:   Thank you, Mr Glissan.  We do not need to hear you, Mr Bartlett.

The point of departure between the majority and the minority in the Court of Appeal in this case turned upon their understanding of the reasons for judgment of the primary judge and in particular the question of whether the primary judge had failed to consider a particular issue that she was required by the legislation to consider.

If there is an issue of principle of the kind which the applicant seeks to agitate, this case is not a suitable vehicle to raise it, but we are in any event not persuaded that the interests of justice require a grant of special leave.  The application is dismissed with costs.

AT 9.58 AM THE MATTER WAS CONCLUDED