Ramton v Cassin S145/1995 [1996] HCATrans 160 (15 April 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S145 of 1995

B e t w e e n -

GLEN RAMTON

Applicant

and

SCOTT MATTHEW CASSIN

Respondent

Application for special leave to appeal

DAWSON J

TOOHEY J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 15 APRIL 1996, AT 11.49 AM

Copyright in the High Court of Australia

MR C.G. GEE, QC: May it please your Honours, I appear with my learned friend, MR P.H. GREENWOOD, for the applicant, in this matter. Now, it is distinctly related to the next in the list, although there are some slight differences between them. (instructed by Abbott Tout)

DAWSON J: Yes, Mr Gee. Should we call the matters together or not?

MR GEE: I thought at first the answer should be yes. I am inclined to separate them. Some slightly different points arise, your Honour and different representatives appear.

DAWSON J: But you will not be repeating arguments that you put in the first one?

MR GEE: To some extent, and I certainly will not - - -

GUMMOW J: The distinction in this case is that we now have the judgment, do we not, of the District Court judge?

MR GEE: Yes, but the - - -

GUMMOW J: One can come to a view as to whether or not, even if the Court of Appeal should not have done what it did, there has been any miscarriage of justice in the event, being able to look now at what her Honour said in the District Court and as to how she disposed of the matter.

MR R.I. GOODRIDGE: May it please the Court, I appear for the respondent. (instructed by Firths)

DAWSON J: Yes, Mr Gee.

MR GEE: If I could just take up the point raised by Justice Gummow. The problem here, your Honour, is not so much that we can now see what the answer might have been, but the ripples from Ramton v Cassin and the way it dealt with the matter are now spreading through the whole of the interlocutory application process of matters that come before the Court of Appeal, and that raises what we respectfully submit is the general point.

TOOHEY J: When you say, "rippling through", do you mean in the sense that these applications have been dealt with as a matter of policy, as it were, divorced from the facts of the particular case?

MR GEE: That is the point we are wanting to make, your Honours, and we illustrate it, among other things, by at least one recent decision in the Court in a matter of, what would I think would be regarded as an importance, the Futuris Case that we mentioned in our submissions.

GUMMOW J: But let me get this clearly in mind. You say being dealt with in the absence of the availability of the reasons of the court below?

MR GEE: No, not necessarily; that was the case in this particular instance, your Honour. The problem is that, as Ramton indicates, the majority took the view that, as a matter of policy, principle, call it what you will, interlocutory challenges of this kind should not be brought until the termination of the proceedings in toto. It happened that in Ramton the judgment at first instance was not available, which enables me to put the submission to the Court that, by definition, the matter was not dealt with on its merits. Nevertheless, the summons was dismissed and the reason given by the majority was that it was not appropriate, in principle, as a matter of policy, to deal with matters of this kind.

DAWSON J: Well now, why is it not a proper cause to take, to refuse leave to appeal against an interlocutory decision, if the issue, substance, can be more appropriately dealt with on an appeal from the final result?

MR GEE: Your Honour, there will be cases in which that is unarguably the proper outcome but even that outcome, our point is, can only be reached after you have at least examined the instant leave application to see whether that is the proper outcome, rather than approaching the leave application by saying, "We decline to examine it to determine whether that is the proper outcome"; we say, unheard, in effect, that is the outcome that we - - -

DAWSON J: But why was this not a proper case?

MR GEE: Your Honour, there is a technical and a non-technical answer. Can I give the technical one first? Under the legislation from which the proceedings emerged, that is the Motor Accidents Act 1988 of New South Wales, the intending plaintiff required leave in order even to be able to bring an action. The application that culminated in the grant of leave was itself a separate application brought in the District Court, independent of any statement of claim. Once the order had been made by her Honour below granting leave, a separate statement of claim with a separate number was issued and became the basis upon which the plaintiff, having enjoyed the leave, commenced proceedings. What was before the Court of Appeal was in no way the substantive case brought by the plaintiff. It was a separate independent process whereby the plaintiff obtained leave. That has been brought to an end by the dismissal of a summons for a leave to appeal. That is the technical answer.

The wider answer, your Honour, is that as a matter of principle, reaching, we would submit, down to some quite important questions of the way courts function, no case should be disposed of, on a policy basis of that kind, unheard. This, as I repeat, was unheard because the court, as we know, did not have the basis on which the judge below had proceeded. Now, the difficulty is that the notion that these cases should not be heard further and should await the final outcome has become entrenched by Ramton v Cassin, a case which itself never heard the matter on its merits.

TOOHEY J: I can see the force of all of that and particularly in this case because a decision was reached without reference to the reasons for judgment or the transcript of proceedings.

MR GEE: Yes.

TOOHEY J: But say the Court of Appeal, without reference to those matters, had inquired of counsel prospective hearing dates, how long the case was likely to last and so on and had been told it probably would be disposed of in a day, would there be any error of law on the part of the Court of Appeal saying, "In those circumstances it seems to us better that that question should be decided along with the substantive trial?

MR GEE: Your Honour, the difficulty in that course would have been the technical answer that I gave a moment ago. The substantive trial, if it goes ahead, will proceed quite independently of the leave. When that trial finishes, assuming there would be a verdict in favour of the plaintiff, there will be nothing in that proceeding which is capable of being the subject of a subsequent application to the court for challenge.

TOOHEY J: That does not seem to be the view taken by the respondent.

MR GEE: That is so, your Honour, but the point is made a little more acutely in the following application, that the Court of Appeal has, in effect, produced a regime of recent times in which it is said that, in all circumstances, interlocutory outcomes may be the subject of challenge at the end of the proceeding, hence there will be no injustice in ciphering it off to the end. Your Honours, in cases in which there is a disposal of the proceeding, such as in this case the application for leave to proceed at all or in the following case, a similar application to proceed under the Workers' Compensation Act, those are independent proceedings and they have come to an end.

TOOHEY J: You would not describe them as interlocutory, because they do not place within the framework of the substantive action? Or, I suppose the other way of putting it, is they are a substantive proceeding themselves.

MR GEE: They are a substantive proceeding and in the first case, Ramton, the one your Honours are presently engaged in, you get to the Court of Appeal by a power in the District Court Act itself that gives the Court of Appeal its power to hear any proceeding that has occurred, interlocutory or otherwise in the District Court, and this matter got to the Court of Appeal under section 128(5A) of the District Court Act - I will hand it up in a moment if your Honours need it to be seen - which expressly clothes the Court of Appeal with power to hear a matter which is, in effect, ancillary to some proceeding, but in this case the twist is - - -

DAWSON J: Well then it is really not an interlocutory matter, is it?

GUMMOW J: It can be tested this way, I suppose. Suppose the judge in the District Court had refused leave, what would the appellate system have said then?

MR GEE: The appellate system would have given the same right - - -

GUMMOW J: Still needed leave?

MR GEE: Still needed leave under section 128(5A), because it does not turn, with great respect, or does not appear to turn - the power given to the Supreme Court to hear it does not depend, if your Honour pleases, on whether you resolve the ancient question of something is interlocutory or final according to traditional tests. The power of it gets into the Court of Appeal from the District Court. It is a power to appeal from any "ruling" or "direction or decision of a Judge of the District Court", in respect of proceedings ancillary to an action, and these were proceedings ancillary to an action in the sense that you could not start your action without getting this separate leave under the Motor Accidents Act. So that in that sense I would respectfully submit that the inquiry into interlocutory or final in the Ramton Case is not precisely in point. It becomes more so, with respect, in the following application.

The upshot is, as we would put it, that we had an individual mischief in this case, in Ramton, which was this: the summons for leave was dismissed with costs and that was the end of the ancillary process. Now that having occurred, the plaintiff proceeds, unfetted by problems as to a three year limitation period, and the outcome of course cannot be known, but - - -

GUMMOW J: We do not yet have a decision in the Court of Appeal, do we?

MR GEE: Well in a very real sense, we do not.

GUMMOW J: At the other end of the scale, in other words, where leave has been granted, there has been no interlocutory appeal permitted; there has been a trial; it is then said leave should not have been given in the first instance and the Court of Appeal does or does not accept that that avenue is still open or accepts your view that there was a separate proceeding which is spent.

MR GEE: A separate proceeding.

GUMMOW J: But they have not ruled on that, have they?

MR GEE: No, they have not ruled on that, but what we do - - -

GUMMOW J: Well, why should we rule on it?

MR GEE: Because, your Honour, of the wider point, that Ramton is now being used as a vehicle for putting all of these cases in the same basket. "We will not look at the question of leave in your individual case, Mr X or Mr Y, because Ramton teaches that because we think you have got an ultimate right to ventilate it all at the end, you can go away until the end." Now, the problem for the individual case is that - and even that is leaving aside, if I may respectfully emphasise this aspect of our submissions, your Honours, the problem that in a number of cases it may very well be the case that leave would be granted if the matter was looked at substantively, an appeal from the ancillary decision or interlocutory decision, as the case may be, allowed and much cost, time and trouble saved in the process. That is part of the idea of having a system for any sort of appellate process where decisions are not absolutely final, whether they are ancillary or interlocutory.

So we would respectfully submit that the Ramton Case can now only be cured by a grant of leave here unless, of course, the Court of Appeal was invited to consider the question, by some sort of remitter, as to whether it would automatically be the case that they would be able to hear the point at the end. But one way or the other, in our respectful submission, it cannot be allowed to lie where it is.

GUMMOW J: That may be so, but the question then is is whether this case is an appropriate vehicle. It does not look to have many wheels at the moment.

MR GEE: Your Honour, how could there be a better vehicle than one in which we know by definition that the matter was not dealt with on its merits, that it was dismissed virtually literally unheard?

TOOHEY J: On your approach, Mr Gee, what would happen when an application is brought to commence the action out of time, it being a separate action from any substantive action that may follow, is the judge then furnished with material, obviously relating to why the action has not been brought earlier? Questions of merit and prejudice, I suppose, would arise, so that it could be a reasonably substantial hearing?

MR GEE: Yes, it could be, your Honour, and indeed these days, although this was not the case at the time Ramton was decided at first instance - but now there is a prohibition on the grant of leave under the Motor Accidents Act unless two conditions are actively fulfilled by the applicant: one that there is a full and satisfactory explanation for delay and the total damages of all kinds are likely to pass a certain threshold.

GUMMOW J: Well, when did that Act come into force?

MR GEE: That particular subsection, your Honour, which is section 52(4B) of the Motor Accidents Act, was introduced to commence on 1 January this year.

GUMMOW J: That bears on what I was just saying to you; the law has changed.

MR GEE: But not in a way that affects, with great respect, your Honour, the question of whether the Court should look at Ramton. It has changed in the sense that what happens at first instance is now to be determined by reference to a new set of criteria, and there are new restrictions, but with the utmost respect, your Honour, that does not touch the point that we are presently raising. May I take the liberty of handing up copies of the Motor Accidents Act section, so far as they are relevant, so that your Honours can see the precise nature of the application that had to occur before her Honour at first instance.

TOOHEY J: In so far as the wider implications of Ramton are concerned, I suppose they could be met to the extent that they need to be met by some statement from this Court in dealing with the application for special leave. But if, for instance, this Court was of the view that there had been a failure by the Court of Appeal to perform the function required of it under the Act when the matter came before it by way of application for leave to appeal but that now in the light of the material furnished to the court, a refusal of leave to appeal would have been appropriate because the matter could have been dealt with along with the trial which is only going to occupy a day, does that then place the present applicant in some position of prejudice? I take it you would say it does because it might be difficult for the applicant to argue the question within the framework of the substantive trial.

MR GEE: We would certainly say that, with great respect, your Honour, but we would say something else as well, namely that no accompanying statement made by the court in dealing with this application will come really to grips with the problem that very much part of the Court of Appeal's position was founded on the proposition that there was always going to be an opportunity anyway.

DAWSON J: That may be wrong and things may have gone a little astray in the circumstances, but it is easily cured, is it not? I mean, if the court takes that view then it simply has to adjourn the application for leave to the hearing of the action. There is nothing wrong with that, is there?

MR GEE: There is nothing wrong with that, but it did not happen, and we now have the situation that - - -

DAWSON J: This Court is not really going to take up its time by dealing with - I know that it is of importance to the parties, but it really is a matter of machinery, and if by an appropriate statement it can cure the difficulties that have arisen, that is the appropriate course to take, is it not?

MR GEE: If it were just a matter of machinery?

DAWSON J: It is.

MR GEE: I have put why no, your Honour, and perhaps that will also reap - - -

DAWSON J: Perhaps I said that too confidently, Mr Gee, but it may seem to be.

MR GEE: Let me put it this way: if the argument is correct that there is no right now to challenge the first instance decision here simply because the Court of Appeal has dismissed the leave summons, and that, prima facie, is the position, then it is not a matter of machinery. It does not matter what happens at the end of the proceedings. If the plaintiff succeeds and some further challenge is necessary, we cannot go back to the matter that needs now, in our submission, to be rectified. That is no matter of machinery, in our respectful submission, and no ancillary statement here will deal with that.

In our written submission we referred to Futuris. May we hand up copies of that unreported judgment, which is short, but which makes it very plain that what has almost become a supposed principle in this Ramton Case is now governing the processes of the Court of Appeal.

Finally, being aware of the time, your Honours, could I just say that if anything were to happen it should happen, with respect, in the Court of Appeal, if necessary by remitter, in which the court could be asked to look at this very question of the accuracy and validity of its assumption that everything can be dealt with at the far end, and again, that cannot be done by an ancillary statement appended to any reasons in relation to this application, and that does, with great respect, seem important in view of the way the ripples are spreading. If your Honours please.

DAWSON J: Mr Goodridge.

MR GOODRIDGE: Firstly, I am not personally aware of the ripples rippling through the Court of Appeal in the policy noted that my friend has raised. I would hope that my practice is wide enough and my reading is wide enough to have been aware of that. I am not aware of that, but I can deal with this without taking issue directly with that point. Justice Gummow raised the point as to whether this was an appropriate vehicle to raise that issue, in any event. The answer to that is, if I could take your Honours to the application book, page 10, line A - your Honours will see that that is the fifth ground set out in the summons for leave to appeal. The summons on page 9, on the top left-hand corner on the back sheet, sets out that it is an appeal "In the Matter of Section 128 (5A)", the very section that my learned friend brings to this Court's attention. Ground (v) makes it quite clear that in the Court of Appeal it was the applicant's position that the proceedings could be dealt with now or later. It was in their summons. That was the ground that they put in the appeal.

If I could now take your Honours to the other references to show that that is indeed the cause adopted at all times by both parties in the Court of Appeal. Page 23, line J:

The only issue is at what time those rights should be exercised and in my opinion it should be after the conclusion of the totality of the proceedings.

TOOHEY J: What if that statement is not correct?

MR GOODRIDGE: Well, the point I am making is both parties of the Court of Appeal, including our side, adopted the view that it was appropriate for this question to be dealt with at either time. For the applicant to come - - -

TOOHEY J: I repeat the question, what if that is wrong?

MR GOODRIDGE: For this reason: for the applicant to come here and to suggest that that is wrong is, indeed, for the applicant to seek leave of this Court to argue a proposition that has never been argued at any point, in any other court, and is contrary to the position they argued below.

DAWSON J: I understand that but it does seem that there is some substance in the contention that it is impossible, at a later stage, to - - -

MR GOODRIDGE: Well, the answer to that is that the opponent, also in the Court of Appeal, accepted that the applicant could later bring it - - -

DAWSON J: Should the Court of Appeal wish to leave the matter to be determined at a later stage, that is at the trial stage, the appropriate thing would be to adjourn the summons, would it not?

MR GOODRIDGE: Yes, unless, of course, it was common between the Court of Appeal and both parties tha,t indeed, it was permissible and allowable.

DAWSON J: That was not my question. Should the court come to the conclusion, no matter what the parties have agreed, it was appropriate to determine the matter at a later stage, because the delay is little, the trial will be short, and they should not take up time here, the appropriate course would be to adjourn the summons to the trial of the action, would it not?

MR GOODRIDGE: The simple answer to your Honour's question: that would be one of the machinery answers the Court of Appeal could have given.

DAWSON J: Is there any other?

MR GOODRIDGE: Yes, the one that was made in this case: dismiss the application for leave at this age - - -

DAWSON J: But that was not the question I asked. The court would not dismiss the application if it concluded that was inappropriate at that stage but if it considered it was appropriate that the matter be determined at the trial stage, the only procedure available, and the appropriate procedure, would be to adjourn the summons to the trial, would it not?

MR GOODRIDGE: That would be the usual course. However - - -

DAWSON J: It would be the only course, I am asking, Mr Goodridge? Can you suggest any other?

MR GOODRIDGE: Yes I can, your Honour. The application in the Court of Appeal is in the nature of an interlocutory application.; Interlocutory application can be dismissed without prejudice to it being raised again at a later point in time.

DAWSON J: You contend it could be raised again?

MR GOODRIDGE: Yes.

DAWSON J: How?

MR GOODRIDGE: Well, your Honour, in circumstances in which both parties had conceded that it could be raised again.

DAWSON J: That does not provide a procedure if none exists. What is the procedure or the procedural justification being available, as a matter to be raised at the trial stage, unless there is some application which raises it?

MR GOODRIDGE: Yes, your Honour. Indeed, it was both parties had dealt with either it should be dealt with now or - - -

DAWSON J: You said that.

MR GOODRIDGE: Yes, your Honour. I am agreeing with your Honour.

DAWSON J: We are addressing ourselves to the question of how it is raised at the appeal stage if it has been dealt with or if it did not wish to deal with it, at the stage of the appeal against the order of the Master or the District Court.

MR GOODRIDGE: Yes, your Honour. Your Honour, it is correct that the appropriate order would be, if the court thought there was sufficient merits in the lead point itself, it being a discretionary bar that has to be lifted first of all - if the Court of Appeal thought there was sufficient grounds made out then, indeed, that summons could be stood over to the final appeal.

DAWSON J: There is no other procedure that suggests itself to me.

MR GOODRIDGE: Well, yes. Your Honour, there is of course one other procedure and that is if the Court of Appeal was uncertain as to whether there was sufficient evidence before it as to whether the bar should be lifted, either now or at a final hearing it could, of course, stand it over to a further date and deal with it then, somewhere in between the first application and the final conclusion of the matter at the trial.

TOOHEY J: Well, that is what they are being asked to do on this occasion and declined to do, notwithstanding the absence of reasons for judgment and the transcript of argument. So, on what footing could the Court of Appeal have determined the matter, in those circumstances, except on some broad policy approach?

MR GOODRIDGE: The Court of Appeal dealt with it on the face of the summons itself. We now have - - -

TOOHEY J: I am not talking about what we now have, I am talking about what the Court of Appeal had.

MR GOODRIDGE: Yes. Well, the Court of Appeal had the summons itself; it had the argument of both sides and the Court of Appeal dealt with it on the basis that the argument appeared to be weak on the face of the summons.

TOOHEY J: The application was for an adjournment, was it not?

MR GOODRIDGE: Yes, the application was for an adjournment.

TOOHEY J: Until the transcript of - until the reasons for decision had been made by them.

MR GOODRIDGE: And the reason in part why the adjournment was refused is because the leave application looked weak, in any event.

TOOHEY J: It is a bit difficult to see how weak it looked when there was no reasons for judgment, I would have thought.

MR GOODRIDGE: Yes. Your Honours, in an appellate court that has the power, it has the discretion whether to grant leave or not, the question that is effectively being raised by the applicant here is, must an appellate court grant an adjournment? And the answer to that, I would respectfully submit, is it does not necessarily have to; there is a discretionary question to be applied. And, your Honours, the question then becomes, did the Court of Appeal apply, in the circumstances of this case, that discretion appropriately? It took a number of matters into account. It took into account the matter that was sought to be argued at the further hearing. It took into account the prospects of appeal. It took into account the form of the summons and the matters raised in the summons. It took into account that the appellant's prospects for success appeared poor. And it may have taken into account that it was the second adjournment application. That is not entirely clear. It also took into account that, as argued by both parties, this matter could be raised at the end of the substantive hearing. For those reasons, this would not be an appropriate vehicle.

DAWSON J: Yes, thank you, Mr Goodridge. Mr Gee.

MR GEE: I wish to put two matters only in reply, your Honours. The first is that the very matters that the Court mentioned a moment ago were those brought into account by his Honour the President and they are germane and should have, in our respectful submission, prevailed and we are here because he was in the minority. The second thing is that the proposition that the court was somehow exercising a discretion in relation to an adjournment will not, with respect, survive three lines in the judgment of his Honour Mr Justice Cole at page 23B:

In particular, this Court should not become a regular venue for reviewing interlocutory steps preliminary to or during the course of a trial. it is for those reasons that I think that this application is premature.

Now that might, you might have thought, picking up your Honour the presiding Justice's earlier questions, have lead to adjournment of the summons, but it did not; the summons was dismissed with costs and the result is as we have put.

DAWSON J: Can I put that question to you? Is there any other procedure, if the court thinks it inappropriate to deal with the matter at that stage, other than standing the matter over, adjourning the summons to the trial of the action?

MR GEE: Not that I know of, your Honour, and if I may say so, could I put a matter that is not supported by authority but by experience:? What has been done in the court below, for a long time, was that if you wanted to preserve your rights in relation to something that was manifestly interlocutory and you needed leave, you put on a leave summons and ask for it to be stood over if that was appropriate.

DAWSON J: Well, that is the same thing.

MR GEE: It is exactly the same thing, but the only reason I wanted to put that, your Honours, was that it tends to suggest that that is the only course available. Thank you, your Honours.

DAWSON J: We will not give our decision in this matter at this stage. Would you call the next matter.

AT 12.20 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.22 PM:

DAWSON J: In this case the Court of Appeal, by a majority, refused an application for adjournment which had been sought to enable provision of the transcript of the argument and reasons for decision of the primary judge in the District Court. The Court of Appeal then went on to dismiss the application for leave to appeal against the leave granted by the primary judge to commence proceedings out of time. Leave of the primary judge was required by section 52(4) of the Motor Accidents Act (NSW).

The need for the adjournment was occasioned by delay, for which the litigants and their lawyers were not responsible, in the provision of the transcript. The learned President was plainly correct in his minority view that an adjournment should have been granted.

The Court of Appeal dismissed the application but "without prejudice to the right of the claimant Ramton if he is so advised on any substantive appeal to raise the question whether Judge Sidis properly exercised her discretion to extend time".

The applicant for special leave submits that it would not be open to raise this question upon any substantive appeal given what is said to be the distinct and separate nature of the application under section 52(4), and of any appellate steps in relation thereto, and their exhaustion by the failure of the claimant in the Court of Appeal.

It may be that upon their true construction the orders of the Court of Appeal involved the standing over of the application for leave to appeal pending any substantive appeal. Alternatively, the Court of Appeal may be taken to have assumed that the grant of leave under section 52(4) was an integral part of the substantive action and thus open to challenge on a later appeal after trial. This Court should not now embark upon further analysis of either view. It would be premature to do so before Ramton sought to exercise in the Court of Appeal the right reserved by its earlier decision, and was denied that right by the court.

There remains the issue of procedural fairness in the denial of the adjournment. The reasons for decision of the District Court judge are now available. They disclose, to our minds, no error in the exercise of her Honour's discretion such as to have given any real prospect of success in achieving a different result in the Court of Appeal if the reasons had been available to that court before it made its decision. There has been no miscarriage of justice in the particular circumstances of the case. The application for special leave is therefore refused with costs.

AT 2.25 PM THE MATTER WAS CONCLUDED