Georgeson v Grundmann B27/1996 [1996] HCATrans 378 (25 September 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B27 of 1996

B e t w e e n -

LAURENCE EDWIN GEORGESON

Applicant

and

DAVID GRUNDMANN

Respondent

Application for expedition

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 25 SEPTEMBER 1996, AT 10.03 AM

Copyright in the High Court of Australia

MR T.W. QUINN: If your Honour pleases, I appear for the applicant. (instructed by Boulton Cleary & Kern)

MR M.E. POPE: I appear for the respondent. (instructed by Nehmer Davenport Deane McKee)

HIS HONOUR: Yes, Mr Quinn.

MR QUINN: Your Honour, this is a summons to expedite the hearing of the application for special leave No B27 of 1996 by reference to - I take it your Honour has read the affidavit.

HIS HONOUR: Yes, I have read the affidavit and I have read the special leave book.

MR QUINN: The reason the application is made is that, as appears in the material, the Court has before it the Superclinics Case. Your Honour, unlike the Superclinics Case this case is, with respect, a better vehicle because each of the pleadings, the evidence and the argument dealt with the question of lawfulness.

HIS HONOUR: You say it is a better vehicle, but it seemed to me there are some jurisdictional problems to begin with. It is not clear to me what part of the order of the Court of Appeal of Queensland you are seeking special leave to appeal against.

MR QUINN: Yes, your Honour. The order as perfected is, in my submission, defective. One has to go to the reasons for judgment in order to see - - -

HIS HONOUR: You cannot appeal against reasons for judgment. Can I show you what seems to me to - I have no doubt this Court has jurisdiction to entertain your special leave application but it is a question of what issues are raised on it. Now, in so far as the order of the Court of Appeal dismisses the plaintiff's appeal, although if the plaintiff was granted special leave to appeal you might be able to raise some of these issues by way of notice of contention, there is simply no jurisdiction in the Court for you to appeal against an order which is in your favour and which you would not be seeking to alter. So it seems to me at the moment, subject to what you have got to say, that the jurisdictional basis for your application could only be the refusal of the Court of Appeal to extend the time for the cross-appeal.

MR QUINN: And in addition to that, your Honour, the approach the Court of Appeal took by itself in relation to the question of costs, because what happened, your Honour, although this does not appear from the formal judgment, is that Mr Justice Dowsett, with whom Justice McPherson agreed, thought that his Honour's order as to costs was in error and came to the conclusion that it was necessary for the Court of Appeal to look afresh at the question of costs because his Honour the trial judge had - - -

HIS HONOUR: I appreciate that, and that is one of the things I want to ask you about because at the moment it is not apparent to me how the Court of Appeal itself had jurisdiction to look at the question of costs, having regard to the fact that they had refused you leave to appeal on your cross-appeal. How could they possibly make an order? After all, it might be different if the plaintiff - it does not seem to me it would even be different if the plaintiff had appealed against the costs order.

MR QUINN: He had, your Honour.

HIS HONOUR: Assuming he had, the most that could be done is that his appeal on that would be dismissed. That does not give the court any jurisdiction then to go and deal with an order adverse to you, except by way of the cross-appeal.

MR QUINN: There is no doubt the plaintiff did appeal the order as to costs.

HIS HONOUR: I know, but the only order that could be made on that is that the plaintiff's appeal be dismissed with costs and that is an order in your favour. It is just not readily apparent to me at all how Justice Dowsett could deal with this whole question of costs at all. I do not think it affects your case, but it is very necessary to get these matters correct because this Court does not determine abstract questions of law. It seems to me the only live issues, from your point of view, or the adverse orders against you, are those orders refusing you leave to extend time for your cross-appeal. If you succeeded on that, then you would get that order reversed. So it is not an hypothetical question from your point of view.

MR QUINN: Your Honour, certainly we are adversely affected by the court's refusal to deal with our application in that respect but, independently of that, his Honour Justice Dowsett does not explain the basis on which he visited the question other than to say that he was satisfied that the trial judge had acted in error - - -

HIS HONOUR: I know, but look, perhaps I should have mentioned this to you at the start of the case. The first thing is the Superclinics Case is now listed for hearing on 12 November. Other cases have been listed for hearing for the rest of the sittings. For you to be made a party or to immediately follow the Superclinics Case, your special leave application would have to be heard on one of two days which occur before 12 November. One is next Monday here in Sydney on 30 September and the next is on 4 November in Canberra. Now, on both days the list is full, and among other issues in this case, it seems to me that before I could grant you expedited hearing on the ground upon which you rely I would need to be satisfied of three things: one, that you had reasonable prospects of obtaining a grant of special leave; secondly, that a substantial part of the issues involved in an appeal by your client are relevant to the issues in the Superclinics Case and, thirdly, either the Court or your client would be disadvantaged is his appeal was not heard with, or immediately after, the Superclinics appeal.

And, Mr Quinn, the reason I state those matters is that it seems to me that if your application succeeds, it will mean that a case already listed in the special leave lists next Monday or in Canberra will have to be taken out of the list and that an appeal already listed for hearing in the November sittings will have to be taken out of the list as well, because it is impossible to think that you would finish this case under a day, and I do not see how, realistically, you could just simply deal with your application for special leave to appeal, you would have to deal with the plaintiff's application for special leave to appeal. We cannot be hearing your side of the case without hearing that case as well. It would be just totally inefficient, among other grounds.

So I think what you have to do is to persuade me that you have real prospects of obtaining special leave to appeal, having regard to the fact that throughout this Court's history it has said that it is only in a very exceptional case will it grant special leave to appeal in relation to a costs issue. That is what is involved in your case, costs. In fact, that is putting it at its highest, from a legal point of view, because you are seeking an extension of time. Unless you get an extension of time to cross-appeal, you do not get to first base. Then there are those second and third issues I mentioned, namely that you would have to demonstrate that a substantial part of the issues involved in an appeal by your client are relevant to the issues in the Superclinics appeal and, thirdly, that in some way either the Court would be disadvantaged or your client would be disadvantaged if your appeal was not heard with or immediately after Superclinics.

Now, having posed to you what I see as the framework, I would be grateful for your assistance on those issues.

MR QUINN: Your Honour, has the application book reached the Court yet?

HIS HONOUR: Yes, I have read the application book.

MR QUINN: It is incomplete - - -

HIS HONOUR: It seems to me that what should be page 86 is missing.

MR QUINN: Yes, your Honour, could I hand up a copy of that. I have called it 85A.

HIS HONOUR: Thank you, Mr Quinn.

MR QUINN: That is where his Honour concludes his analysis of the position with respect to costs. Your Honour, dealing with the first issue that your Honour has - - -

HIS HONOUR: You will have to make those available to - other copies, they should be put in, Mr Quinn.

MR QUINN: Yes, Your Honour. Dealing with the first issue that your Honour has identified, that is the question of whether there are reasonable prospects of a grant of special leave, whilst it is true that the means by which the respondent seeks to raise the issue is in relation to the issue of costs, the error which is submitted to arise is an error as to a fundamental point in fact taken into account in dealing with costs, but really not a costs issue in the true sense at all.

HIS HONOUR: I know, but you are asking the Court, on what involves really costs, at best - first of all, there is this anterior question about extension of leave. I mean the costs order itself involves a question of discretion and it is not as if you had a straight clear point on the justification issue, there are these other matters to which Justice Davies referred, namely that you lost on identification issues, there is the issue that the trial judge referred to that the plea had been put on to embarrass the defendant and matters of that nature. So it is not a clear case. It is a very unpromising vehicle for special leave. I understand your client's interest in this matter and how important the issue underlying all this, or at back of all this, is to him, but from a jurisdictional point of view and having regard to the principles for a grant of special leave, it does seem to me a very unpromising vehicle, Mr Quinn.

MR QUINN: If I can take your Honour to the question of the considerations that his Honour took into account. The Court of Appeal seemed to recognise, and his Honour in fact articulated it himself, that the question of illegality in connection with the justification defence was a substantial reason or basis for the exercise of his discretion in relation to costs and in that respect was in error.

HIS HONOUR: I know that, and that is very much in your favour, but where does it lead to? This is one of the problems I just have at the moment in following how you seek to relate this case to the Superclinics Case. After all, in paragraphs 15 and 16 of your special leave application you set out the grounds upon which special leave should be granted. They are at page 105 of the book, if I remember correctly. Now, in relation to the first one, namely:

The question of whether a profession and in particular the medical profession can have as a proper professional standard a tolerance of the regular commission of crimes in an area central to the particular practitioner's medical practice such that professional standards are below the norms of conduct which the criminal law establishes.

I do not see how any question of the construction of sections 224 or 282 arise. The judges in the Court of Appeal assumed in your favour that the plaintiff was guilty of criminal acts and in breach of those sections. So how can the question of the construction of those sections arise?

MR QUINN: Your Honour, it arises if we succeed on the first special leave point which is referred to in paragraph 15 because - - -

HIS HONOUR: That is the one I have just read to you.

MR QUINN: Yes, with respect, their Honours avoided the question of illegality by assuming it in favour of the defendant and decided, as it were, by another route that the justification defence failed.

HIS HONOUR: That may be, but we cannot lose sight of the Superclinics Case here. It seems to me that your claim for expedition cannot get off the ground unless you can show that there is some issue in your case that has got a vital bearing on the Superclinics Case. What I am putting to you is that, for the purposes of your case, the judges in Queensland have accepted that the plaintiff is in breach of those provisions of the Criminal Code, irrespective of what they mean. Taking the Bayliss judgment or any judgment as favourable to the plaintiff as you can get, the trial judge came to the view that he was in breach of those provisions and the judges of the Court of Appeal - at least the majority judges - acted on that basis. Now, what is there for this Court to say about the issue? We cannot improve on what you have already got in your favour on this paragraph 15. That seems to me to be a real difficulty in your way.

MR QUINN: Your Honour, if I can just come - because your Honour did mention it in identifying difficulties associated with discretionary considerations and the raising of the defence, could I direct your Honour's attention to page 2 of the application book. This is on the question of the raising of the issue.

HIS HONOUR: Page 2 of the application book.

MR QUINN: Yes.

HIS HONOUR: It is a pleading, is it not?

MR QUINN: That is the plaintiff's first statement of claim. Your Honour will see, looking at paragraph 9(f), that the plaintiff himself, at the very outset, put the issue of illegality up.

HIS HONOUR: He may have, but - - -

MR QUINN: So that his Honour was wrong to suggest that really the defendant raised it.

HIS HONOUR: It may be but the fact - I am sorry, you are answering a point I made earlier.

MR QUINN: I do not want to dwell on that. Your Honour mentioned it and I did not say anything at the time.

HIS HONOUR: No, I understand that. Let it be assumed in your favour that the Court came to the view that the Court of Appeal was wrong in not granting you leave on the costs issue and you should have been allowed to litigate these issues. How would this Court have to deal with the operation of sections 224 and 282 of the Criminal Code?

MR QUINN: Because, your Honour, in my submission, this Court would conclude, in relation to the issue that is referred to in paragraph 15 of the statement at page 105 of the record, that the court was wrong in acting on the basis that there could be a proper standard of professional conduct which accepted the commission of serious offences.

HIS HONOUR: I know. Let that be assumed in your favour, but the Court would not be construing the Queensland sections 224 or 282.

MR QUINN: It would then move to that point, your Honour, because in order to make out the argument in paragraph 15, it would be necessary, rather than assuming the question of commission of offences, to - - -

HIS HONOUR: Mr Quinn, with respect, that is just - well, I will not say it is hopeless, but it really has no substance at all. I mean, you have a finding in your favour. I am sorry, I should not say "a finding in your favour".

MR QUINN: We do not have a finding, with respect, your Honour.

HIS HONOUR: It has been assumed in your favour, for the purpose of determining whether you had established the defence of justification, that this plaintiff, in effect, is a criminal. Now, what more can you get than that? All you are saying is the Court should go along and decide he is a criminal.

MR QUINN: In order to show our entitlement to the justification defence, your Honour.

HIS HONOUR: That does not help your justification defence one iota, Mr Quinn. The judges have assumed he is a criminal. It is not going to help to determine whether the profession can have a proper standard of tolerance of the regular commission of crimes in an area, et cetera, when the court is already acting on the basis that he is a criminal. But the judges in the Court of Appeal in Queensland have said, "Well, notwithstanding the fact that he is a criminal and does commit offences against sections 224 and 282, that nevertheless that does not mean that he acts contrary to the standards of the profession."

MR QUINN: But, your Honour, the assumption goes off because of the conclusion the Court of Appeal arrives at in relation to the paragraph 15 issue. So the assumption evaporates for the purposes of determining the issue as between the parties.

HIS HONOUR: It does not matter. Let it be assumed in your favour that the court went on and made a finding, as opposed to just assuming. It would not have made one iota of difference to the Court of Appeal of Queensland's judgment, would it?

MR QUINN: Your Honour, we would now be coming to this Court and advancing paragraph 15 as the only special leave point. If we had a finding of contravention of section 224, the only point we would need to raise would be the professional conduct issue. But because we do not have that finding - - -

HIS HONOUR: But you have an assumption. You have exactly the same thing as a finding. Now, this point is really clear, Mr Quinn.

MR QUINN: Your Honour, in a sense, the Superclinics Case was somewhat the same and the intervention was granted on the basis that there was an assumption that Judge Devine - - -

HIS HONOUR: The parties had assumed it, what is involved in a state of the law. What is involved in the Superclinics Case is whether or not there was, or what the law was. Not what was assumed to be the law but the law is different from what it was assumed to be. But, I mean, your case is just far removed from this particular case.

MR QUINN: Your Honour, underlying the assumption that your Honour refers to in relation to the section 224 issue is an assumption by the Court of Appeal, not only of the fact of the conduct but also of the law applicable, so that in that sense - - -

HIS HONOUR: But the difference between the two cases is this, that in one case it is necessary to determine what is the true view of section 83 of the New South Wales Crimes Act 1899 so that you can determine issues of duty, issues of damage. But in your particular case it does not matter what construction you put on it. From your point of view, you have a finding in your favour that this plaintiff is in breach of the section and the judge has operated on that basis. This issue just does not arise. I mean, there would be nothing to stop the Court by way of an obiter dictum, if they wanted, to say, "Well, we're going to discuss the meaning of section 224 and the meaning of section 282", but you are not going to get an expedited hearing and you are not going to get a grant of special leave on the chance that the Court might decide to say something by way of obiter dictum about a point that is not necessary to decide.

MR QUINN: Your Honour, in my submission, the only way in which the Court of Appeal was able to justify the making of an assumption in relation to the section 224 issue was because it then went on to find against the applicant on the other special leave point because if it did not do that then it would have been necessary and it would be necessary for the purposes of disposing of any appeal - - -

HIS HONOUR: Mr Quinn, I do not want to be arguing with you but could I just simply put these simple propositions. To prove justification, you had to prove these things: you had to prove that the plaintiff was guilty of crimes and you had to prove that, because he was guilty of crimes, he acted contrary to the standards of the profession. Now, the Court of Appeal said, "We are prepared to accept that he is guilty of crimes. That he is guilty of breaches of section 224 and section 282 of the Criminal Code but nevertheless we hold that even if he is guilty of those crimes, that does not establish the plea of justification." So, if you came here; you were granted special leave to appeal, the only issue you would be running or could run is whether they were wrong to hold that he was not in breach of the standards of the medical profession in Queensland although he was guilty of the crimes. The meaning of the sections is totally irrelevant to that issue, because that is the assumption, that he is guilty of it. So, that is why I say to you, it would be only as a matter of obiter dictum. Having put that to you, you - - -

MR QUINN: Your Honour, in my submission, the Court does not need to examine whether the assumption was an accurate one or not if it resolves the paragraph 15 point in favour of the respondent, but if the Court was persuaded, firstly, that the Court of Appeal - - -

HIS HONOUR: When you say "the respondent", you mean the plaintiff?

MR QUINN: Yes, the plaintiff, your Honour. If the Court of Appeal's view in relation to the professional standards issue was concluded by this Court to have been in error, the question would then arise as to whether the Court was entitled to make the assumption on the Code issue because if the Court found the Court of Appeal was in fundamental error about the matter of professional standards, then no doubt the plaintiff would submit that the court was in error in making the assumption that it did and the question would arise - - -

HIS HONOUR: This Court would not be dealing with that; would make no finding about that. The trial judge made no finding about it. What he said went a long way to deciding it. The only thing this Court would do would be to send it back for a new trial and that raises all sorts of problems as to why this is not a suitable vehicle for special leave to appeal. The idea that this Court would take on a case and somehow or other grant a new trial on a costs issue, send it back to have the issue determined is just unthinkable.

MR QUINN: But, your Honour, his Honour made findings to avoid that issue. Can I ask your Honour to go to page 31 of the application book where his Honour made the necessary findings of fact, and at about point 5, his Honour said he made that finding with no doubt and, at the end of the main paragraph, his Honour said:

On balance I think it is desirable to record the finding to avoid any need for a retrial on this point.

So that the matter would not need to go back for a retrial because the necessary findings of fact to - if I can put it this way - plug into an alternative view as to the relevance of the justification defence have already been made by his Honour in order to obviate the difficulty that your Honour has identified. So that, with respect, the problem that your Honour apprehends is catered for by his Honour's reasons.

HIS HONOUR: I am not sure that that is right. I follow what you put but the short answer to it is that this Court would not examine the facts itself without the opinion of the Court of Appeal on this matter. I mean, either that establishes that he was in breach of the Act or it does not, but how does it affect the construction of sections 282 or 224?

MR QUINN: Your Honour, because in order to test whether the facts as found by his Honour establishes offences, it is first of all necessary to identify what is the appropriate test under section 224 and the connection with the - because one cannot look at facts without firstly identifying the test.

HIS HONOUR: On that hypothesis, Mr Quinn, these facts may not be relevant.

MR QUINN: Until one identifies what is the correct test, one does not know whether the facts are relevant, irrelevant or otherwise. But, your Honour, can I move to try to identify the connection with the Superclinics Case because that is one of the other factors that your Honour identified you would need to be persuaded about. The question of whether the word "unlawful" or a derivative, I think, "unlawfully" in the Crimes Act does any work and, if so, what work is a question that arises in the Superclinics Case.

HIS HONOUR: I appreciate that.

MR QUINN: Your Honour, the same terminology appears in section 224 which has been set out in the affidavit - - -

HIS HONOUR: I know. New South Wales has no 282 but that does not seem to me to be relevant because, having had a quick read of Bayliss' Case it seemed to me that Judge Maguire seemed to make his decision turn on the word "unlawfully", just as in - - -

MR QUINN: That is so, your Honour, and the question of importance - and can I, with respect, refer to what fell from your Honour in the course of the argument in the Superclinics Case. I have given a copy of this to my friend, Mr Pope. It appears in the transcript on 11 September at page 15, where your Honour, in an exchange with Mr Callaway, said that an important function of this Court is not only to deal with the issues that arise inter partes but also to decide the law for the nation.

HIS HONOUR: That is absolutely correct but the Court, as Justice Gaudron and I said in Breen v Williams recently, just cannot make it up as it goes along. It is not an ombudsman. It is not a parliamentary committee. It decides issues of law inter partes, but - - -

MR QUINN: Your Honour, can I identify how, with respect, adopting what your Honour said on that occasion, raises an issue that, if special leave were not granted in this case, the Court would be deprived of the opportunity to do precisely what your Honour identified as one of its important functions, that is, to decide the law for Australia, not just for New South Wales or the other non-Code States.

HIS HONOUR: That is one thing we will never do. We are dealing with the law for New South Wales. That is relevant. We are not going to go and express a view about what the law of Tasmania is, saying, a judge may do it individually. That is not what the Court is about. I do not think that it is really relevant from your point of view and it is not against you in any way. There seems to me to be a real probability, almost a certainty, that what the Court says about section 83 of the New South Wales Crimes Act will apply to Queensland, having regard to the existing decisions in Queensland. I am talking about Bayliss' Case because Bayliss seems to follow the New South Wales and Victorian decisions.

MR QUINN: But, your Honour, that is the important question, that - - -

HIS HONOUR: I appreciate that.

MR QUINN: Your Honour, can I explain how, in my submission, it is possible, with respect, to erroneously assume that a construction of section 83 of the Crimes Act may simply be carried over to the Code position and it is for this reason that whilst the word "unlawful" or "unlawfully" occurs in both provisions, it occurs in the New South Wales statute in a non-Code environment. In Queensland, there is a Code and the room for the operation of any common law defences is, in my submission, excluded so that if the Court were, for example, to be persuaded that the word "unlawfully" opened up the opportunity in New South Wales for a defendant to rely upon a defence of necessity, the question would arise not only is there any general defence of necessity at common law but whether that defence can be, as it were, picked up by the word "unlawfully" to give the word meaning in the non-Code environment, your Honour - - -

HIS HONOUR: But that seems to be an argument against you. That is a reason why your case is separate from New South Wales.

MR QUINN: And, your Honour, it is important, in my respectful submission, that if this Court is to have the opportunity - and all that the application for expedition seeks to do is to give to the Court the opportunity to deal with, in conjunction with the Superclinic issue for the non-Code States, at the same time to deal with the issue in relation to the Code States and, importantly, in circumstances where there is no general provision in relation to necessity in the criminal responsibility provisions of the Code - there is, for example, in section 25, a general defence of extraordinary emergency which might be thought to - - -

HIS HONOUR: I know, but these things are against you. You are putting arguments that are against you, really, because that is a reason why we would not hear your case with Superclinics. After all, if your case is heard with Superclinics, it is going to extend Superclinics for another day. As I said to you, we are going to have to take out of the list an appeal of parties that is set down for hearing and that case would just have to be removed. So, one would want to be very confident that issues that you raise have a real bearing, and the more you put these arguments, the more, it seems to me, that you are showing why the Queensland situation may be different from New South Wales.

MR QUINN: Your Honour, it is important, in my respectful submission, for the very reason of what fell from your Honour a few moments ago, that is, your Honour made the observation that there was a probability that the Court's determination in Superclinics on section 83 would carry over to the construction of section 224.

HIS HONOUR: That was said on the basis that the sections were identical; that 224 exhausted the law of Queensland and 83 exhausted the law of New South Wales, but now you point to these other facts which indicate that that is not the case at all. So that even if CES succeeds in the Superclinics Case, it does not necessarily mean that the law of New South Wales will be applicable in the Code States. That is the point you have just been making.

MR QUINN: But, your Honour, the third point that your Honour asked to be addressed upon, that is, what is the disadvantage to the applicant of not having the matter expedited and dealt with, is demonstrated by what fell from your Honour because it might be, in the way in which your Honour indicated, the judges might - some of them might be disposed to make some observations about the law in other jurisdictions. The applicant would be substantially disadvantaged if, for example, there was an observation by what could be counted as a majority of the kind that fell from your Honour a few moments ago because the applicant would then face the difficulty of the submission being made - say, if this case just proceeds in the normal course of things, the application for special leave comes on at some time after the Court has given in the Superclinics matter, the Bench constituting the Court for the purposes of the special leave application may say, "Look, the Court has already passed upon that issue, albeit not in a way that was necessary to directly decide it, but has passed upon it in the Superclinics Case, now why is there any need to trouble us further?"

HIS HONOUR: And the short answer from you would be, "Because the Court misunderstood the position. They were not aware of section 25; they were not aware of this section of the Queensland Criminal Code; they were not aware of this and the different backgrounds." It would be almost a ground for special leave rather than a ground disqualifying it because the judgment would have gone off on a wrong tangent. But when these issues - I have not seen any submissions from the plaintiff in the Superclinics Case yet but other submissions I have seen do not seem to call for the Court to be doing anything but dealing with this situation in New South Wales and Victoria. Your real problem is - I have to tell you quite frankly, it seems to me that your prospects of getting special leave in this case are very, very low, indeed, for the reasons it is a costs application and that is all that is involved in it and there are discretionary considerations. I am not sure that you can say much more but it is an important point from your - I do not want to stop you. You have been very helpful in your submissions, but I have to tell you that unless you can convince me that there is something so special about this case that the ordinary rule about special leave in costs matters will departed from, I just do not see how you have any prospects of getting special leave.

MR QUINN: Your Honour, if I can - before coming directly to deal with that final matter. So far as the question of importance is concerned: if the Court proceeds simply to determine the Superclinics Case without hearing this case in conjunction, then the Court is limited to declaring the law for New South Wales. If the Court is given, by your Honour, the opportunity to hear, in conjunction with or following upon the Superclinics appeal, any appeal that could be brought were special leave to be granted on this application, the Court would have the opportunity to do what your Honour indicated was desirable, be done, and that is to determine the law for the nation because the Court then has before it the law not only in respect of the non-Code States which is exemplified in the New South Wales Crimes Act provision but also the issue as it arises in the Code States.

HIS HONOUR: It is hypothetical. To even get to the question of the construction of 224 or 282, you have to succeed on other issues. You have to show that you are entitled to an extension of time, to a cross-appeal, notwithstanding your delay, notwithstanding that no reasons were given to the trial judge. The hurdles in front of you are enormous. In fact, in the nearly eight years I have been sitting in this Court, you would have to be within the bottom 5 per cent of cases of difficulty, it seems to me, with all the different stages you have to get through on a special leave application.

MR QUINN: Your Honour, so far as the question of the costs complexion of the matter is concerned and the identification of the anterior hurdles about extensions and so on, I do not want to go over it again at length but, your Honour, we would be submitting at the outset that the Court can pick up the exercise of jurisdiction by Justice Dowsett and that one does not need to go back to the matter of an extension - - -

HIS HONOUR: You still have to because the order - when you say jurisdiction by Justice Dowsett, the order on the appellant's appeal is appeal to be dismissed with costs. Now, in so far as you sought to appeal against that order, you would not be seeking to get that order changed.

MR QUINN: No, your Honour, but the formal order - can I ask your Honour to go to the record at page 85 at about point 9 where his Honour refers to the conclusions at which he had arrived in relation to the justification defence which necessarily involved rejecting the primary judge's conclusion about that.

HIS HONOUR: I appreciate that, but that is not an order. This Court has jurisdiction under section 73 of the Constitution to hear appeals and determinations but the order of the Court of Appeal is at 86 of the book,

No (1), "The appeal is dismissed with costs".

MR QUINN: Can I take your Honour back to page 85 and explain why, in my submission, the formal order does not truly reflect what happened. If your Honour looks at page 85 - in other words that the formal order is in error - - -

HIS HONOUR: What should be the formal order?

MR QUINN: If I can take your Honour to the bottom of page 85 his Honour concluded that, this is in the third last line:

his Honour's view was based upon a false premise, and the order as to costs, which reflects that view, cannot stand.

So that his Honour, in effect, was setting aside the primary judge's order.

HIS HONOUR: I know, but - - -

MR QUINN: Now, he replaced it with an order, and this is where the slip arises. The order that is ultimately made ought to have been - the formal order taken out ought to have been one which reflected his Honour's conclusions here, that is - - -

HIS HONOUR: What would it have been?

MR QUINN: That is that the primary judge's order as to costs is set aside and an order made in the same terms. Now, your Honour, that may seem to be a somewhat arid exercise, but - - -

HIS HONOUR: Not only would it be an arid exercise, it would be completely wrong, and if the learned judge had thought the matter out, with great respect to him, he would have seen that he should never have embarked on the question of costs at all, with great respect to Justice Dowsett.

MR QUINN: He did, your Honour.

HIS HONOUR: I know he did, but when he came to make the formal orders of the court they made orders that did not reflect the way the judgment had come out, for the simply reason that they could not. The orders at 86 are the only orders that could be made. With great respect to Justice Dowsett, only Justice Davies approached the question of costs in the right manner.

MR QUINN: Although the issue arises in connection with - its final effect is in relation to costs, in my submission the authorities concerning the difficulty about appeals against the exercise of discretions generally, and exercises of discretion as to costs in particular, move when one identifies at the root of the order an error in relation to a fundamental matter of significant importance, that is the question of justification. So that although it ultimately gives fruit to an order for costs which bears all of those difficulties - - -

HIS HONOUR: I know, but you are arguing about one or two days costs and you want the Court to grant special leave to embark on an examination of an issue, perhaps even send the matter back for a new trial in some ways, to deal with issues that are remote. Mr Quinn, as important as these issues are to your client - I may be sitting on your special leave application, but I doubt it - but assuming I was, it seems to me that you have got really no real prospects of success. That, by itself, seems to me sufficient. At all events, you have no reasonable prospects of getting a grant of special leave to such an extent that this Court would be justified at this stage in taking cases out of the list. Somebody has a case on Monday or in Canberra on 4 November set down for hearing, we would have to take those cases out of the list to allow you to argue these points and, in addition, as I said to you, to grant this application of yours I would also have to assume that we are going to take some appeal out of the list which has already been set down for hearing.

That being so, I would want to feel confident that you had reasonable prospects of granting special leave and I have to tell you I do not, with great respect. If I am wrong about it, and contrary to the view I have at the moment, having heard your argument and read the special leave application and your solicitor's affidavit, then you will be able to argue these things before the special leave application. After all, we are dealing with a question of expedition. Your client's rights are not going to be prejudiced in any way.

It is not an easy task for any Judge to attempt to forecast what his brethren or her brethren will do on a special leave day, but unfortunately I am the one that has to do it because I am the duty Judge this week. But, having said that, you have certainly been of assistance and you have put your arguments extremely persuasively. Is there anything more that you want to say? After all, we only give 20 minutes on a special leave application, you have been going for nearly 50 minutes on - - -

MR QUINN: No, your Honour, the points have been identified and it really is, on the first question, whether it is truly a run of the mill costs issue as to which the discretionary considerations - - -

HIS HONOUR: No, lurking behind this question of costs there in the background is a serious issue, but whether it will ever arise in this particular case is speculation, simply because you have to get through the extension of time hurdles, you have to get through the discretionary hurdles, you have to get through the professional standards argument; only then do you get to this issue. So in the terminology that is used in these matters, the conclusion I would take is the Court would say this is not a suitable vehicle for raising the issues that you want to raise.

I had better give a formal judgment in relation to the matter, unless there is something further that you want to put to me. I think I have grasped what you want to say and I think I have got all the facts of the case pretty much in mind.

MR QUINN: No, there is nothing further, your Honour.

HIS HONOUR: Thank you very much. I do not want to hear you, Mr Pope.

This is a summons for an expedited hearing of a special leave application. The principal ground in support of expedition is that, if the applicant is given special leave to appeal against part of a judgment of the Court of Appeal of Queensland, his appeal will involve the proper construction of sections 224 and 282 of the Queensland Criminal Code Act , section 224 being similar to section 83 of the Crimes Act (NSW) 1900, the construction of which is involved in the Superclinics Case which is part-heard before this Court.

Section 224 provides:

Any person who, with intent to procure the miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a crime, and is liable to imprisonment for 14 years.

Section 282 provides:

A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for the patient's benefit, or upon an unborn child for the preservation of the mother's life, if the performance of the operation is reasonable, having regard to the patient's state at the time and to all the circumstances of the case.

There is no New South Wales equivalent to section 282 of the Criminal Code.

If leave to appeal is granted, the applicant would seek to have his appeal heard at the same time as the further hearing of the Superclinics appeal or immediately thereafter. The applicant contends that this would give the Court:

the opportunity to decide on a more comprehensive basis for Australia questions relevant to the lawfulness of abortion by deciding such questions, not only in relation to the non-Code States but also in relation to the Code States.

The Superclinics Case is listed for hearing on 11 November. Other cases have been listed for hearing for the rest of the November sittings of this Court. In addition, the only two special leave application days before 11 November are next Monday, 30 September, in Sydney, and 4 November in Canberra where the Court will hear applications from Perth by means of a video link. A full list of cases has been set down for hearing on 30 September and 4 November.

It follows that, if the applicant's desire to have his case heard with or immediately after the Superclinics Case is to succeed, it is virtually inevitable that a case already listed for hearing in the special leave list and an appeal already listed for hearing in the November list will have to be removed.

In these circumstances, before granting an application for expedition, I would need to be satisfied of three matters: first, that the applicant has real prospects of obtaining a grant of special leave; secondly, that a substantial part of the issues involved in an appeal by the applicant are relevant to issues in the Superclinics appeal and, thirdly, that either the applicant or the Court would be disadvantaged if his appeal was not heard with or immediately after the Superclinics appeal.

To understand the contention of the applicant that his special leave application should be expedited, it is necessary to briefly review the history of the proceedings. They arise out of a defamation action brought by a Dr David Grundmann against the applicant who is also a doctor. The defamation action arose out of comments allegedly made by the applicant upon finding that a fertility control clinic was to be opened in the city of Rockhampton where the applicant carries on his medical practice.

The trial judge found that a report of the applicant's comments published in a paper, which I assume is a local newspaper, was, in substance, a correct report of what the applicant had told a reporter. Those comments left no doubt that the applicant thought that the clinic would carry out abortions and that he was strongly opposed to the setting up of an abortion clinic in Rockhampton. Among other matters, the applicant was reported as saying that termination of pregnancy was, "Just a nice way of saying murder."

The defamation action was heard over five days. The trial judge found for the applicant, that is to say, he entered a verdict for the applicant, as the defendant in the action, and dismissed the plaintiff's claim for damages for defamation.

The plaintiff contended at the trial that the remarks of the applicant contained a number of imputations. The trial judge rejected the plaintiff's contentions that the comments of the applicant meant that the plaintiff was a murderer or a person who killed unlawfully. The learned trial judge also rejected contentions that the comments meant that the plaintiff practised genocide and that he had no respect for human life.

However, the learned judge held that an imputation set out in paragraph 9(a) of the statement of claim was made out, namely, that the applicant's remarks meant that the plaintiff "took life contrary to his oath and the standards of his profession". Although the learned judge found that a defence of justification, that is, a defence of truth and public benefit, which had been pleaded was capable of relating to that imputation, his Honour held that the plea of justification was not intended to answer that particular imputation. For present purposes, I think it is unnecessary to refer to the reasons which his Honour gave for that conclusion because as will appear a majority of judges in the Court of Appeal of Queensland found that his Honour was in error in this respect.

Notwithstanding the view that the learned trial judge had expressed about the plea of justification, he examined the facts to support the plea, at least to some extent, and he made this finding:

I make no finding as to whether Dr Grundmann has carried out illegal abortions in his clinic at Townsville because that would require a detailed examination of the provisions of s. 282 of the Criminal Code. In my judgment, it would be quite inappropriate for me to embark upon such an examination in the present context, when it is unnecessary for me to do so for the purposes of the decision. However, I do find that the plaintiff has performed abortions on numerous women at his Townsville clinic when there was no necessity for him to do so in order to prevent serious physical or psychiatric injury to the patient. I disbelieve Dr Grundmann's assertions that he honestly and sincerely applied that test before each and every abortion which he performed. I make this finding with no doubt; but somewhat reluctantly since I am not wholly convinced of its relevance to the plea of justification in respect of the relevant defamatory matter. On balance I think it is desirable to record the finding to avoid any need for a retrial on this point.

Ultimately, the learned trial judge found that the applicant was entitled to succeed in the action because of the provisions of section 377(8) of the Queensland Criminal Code which provides for a defence of qualified protection. The learned judge found that the publication of the defamatory matter came within that subsection and that the applicant did not lack good faith in making his comments. Accordingly, the learned judge entered a verdict for the applicant.

However, the trial judge gave the applicant costs only for one day of the hearing and two-fifths of the costs of preparation. He gave the plaintiff, that is Dr Grundmann, two days' costs and two-fifths of the costs of preparation not otherwise dealt with by his order. The judge gave these reasons for his order:

Such an order could be made only where there have been allegations improperly or unreasonably raised.

In my judgment that can be said to have happened in the present case. The issue regarding whether the defendant said the words attributed to him by the newspaper was one on which, in my judgment, the defendant quite unreasonably reversed his initial position of admitting that he used the words. Only in early 1995 did he take up the attitude that he did not use those words. One suspects he took up that attitude having carefully perused the reporter's notes and identified just what the report might be able to depose to.

Second, in my judgment, the issue of illegality of the plaintiff's conduct was unreasonably and perhaps improperly raised. It was raised in a context where the defence, the Pollypeck defence, was not made out on the facts and indeed with the benefit of hindsight at least can be shown to have not been available in the circumstances, and there is in my view a strong prima facie indication at least that it was raised in an attempt to embarrass the plaintiff.

The learned trial judge refused the present applicant leave to appeal against his costs order.

Thereupon, the unsuccessful plaintiff appealed to the Court of Appeal and, notwithstanding that the learned judge had refused permission to file a cross-appeal against his costs order, the applicant filed a cross-appeal. In the result, the judges of the Court of Appeal unanimously dismissed the plaintiff's appeal and the applicant's cross-appeal. The formal order of the court provides:

It is ordered that -

(1) The appeal is dismissed with costs.

(2) The respondent's application for leave to appeal on the question of costs is refused and the cross-appeal is struck out.

(3) The respondent is to pay the applicant's costs of those proceedings.

As I earlier mentioned, a majority of the judges of the Court of Appeal held that the trial judge was wrong in holding that the plea of justification did not apply to the imputation set out in paragraph 9(a) of the statement of claim, namely, that the plaintiff took life contrary to his oath and the standards of his profession. Justice Davies, the other justice, did not deal with this issue.

Justice Dowsett, who gave the judgment for the majority, held that the plea of justification was still a live issue in the appeal. He examined the facts but found that the applicant had not established that the plaintiff acted contrary to the standards of the medical profession, even though his Honour said that the findings of the trial judge went a long way to establishing that the abortions carried out by the plaintiff were not authorised by the Queensland Criminal Code. The plea failed because his Honour was not satisfied on the evidence that the plaintiff had acted contrary to the standards of the profession in the manner that he conducted his practice.

In determining whether the applicant had made out the defence of justification, Justice Dowsett assumed that the plaintiff had performed abortions illegally, that is to say, contrary to sections 224 and 282 of the Code. His Honour specifically said:

I consider that his Honour [i.e. the trial judge] was indicating only that he was at least willing to assume, for the purposes of the defence of justification, that the appellant [i.e. the plaintiff] had performed abortions illegally. I have also made that assumption.

As I have said, notwithstanding that leave to appeal on the issue of costs had not been granted by the trial judge, the applicant had filed a notice of cross-appeal. However, the Court of Appeal held that without leave the cross-appeal was incompetent. The judges also refused to give leave to extend time for a cross-appeal to be lodged with their leave. Justice Dowsett pointed out that no ground had been put before the trial judge for the grant of leave other than that the applicant was not happy with the order; that there had been no real attempt to formulate proposed grounds of appeal before the trial judge and that there had been no real explanation for the delay in seeking to make this application for an extension of time in which to seek leave to appeal.

Notwithstanding that Justice Dowsett and Justice McPherson, who agreed with his judgment, dismissed the applicant's cross-appeal, somewhat surprisingly, they went on to consider the question of costs. They came to the conclusion that the trial judge's order for costs had to be re-examined because there had been a wrongful exercise of discretion. It is not apparent to me how the court could vary the trial judge's order on costs on the plaintiff's appeal without allowing the plaintiff's appeal in part. Nevertheless, after considering all the facts of the matter, the majority of the Court of Appeal, in the exercise of their own discretion, refused to interfere with the costs orders made by the trial judge. Justice Dowsett said:

Although I suspect his Honour may have been correct in the view that the ventilation of the illegality question was unreasonable and improper, I am not satisfied that such was the case. However, it obviously consumed a substantial amount of time at the trial, and the respondent failed on the issues to which it related. For that reason, I consider that he should pay for it. I infer that the order made by his Honour was designed to achieve that result. There has been no suggestion that it did not do so. As I consider the result to be appropriate, albeit for different reasons, I adopt his Honour's quantification. I therefore propose an order for costs in the same form as that made by his Honour.

In discussing the cross-appeal, Justice Davies gave reasons agreeing with that conclusion.

It is against this background that the applicant now seeks special leave to appeal against part of the order of the Queensland Court of Appeal.

The application book does not show what part of the order the applicant seeks to appeal against. Some discussion has taken place between myself and Mr Quinn who appears for the applicant, concerning this matter. There is plainly no jurisdiction to entertain an appeal from that part of the order dismissing the plaintiff's appeal. There is no order, on the plaintiff's appeal to the Court of Appeal, which is adverse to the applicant.

Mr Quinn suggested that, because the learned justices in the majority in the Court of Appeal had considered the costs issue in the context of the plaintiff's appeal, that would enable the applicant to bring a special leave application against that part of the judgment. I am unable to accept that argument. Order (1) of the Court of Appeal is that the plaintiff's appeal be "dismissed with costs". On the special leave application or on appeal, the applicant would not be seeking to vary that order. To debate questions that may lie behind that order would therefore be purely hypothetical.

The only case of which I am aware in which a person has been given leave to appeal against an order which he does not seek to vary in any way is Australian Consolidated Press v Uren (1969) 1 AC 590. I have long-doubted the correctness of that decision on that point but, in any event, it is plainly distinguishable because in that case, there was to be a new trial and the Privy Council's judgment as to the law applicable to a new trial was relevant. In addition, their Lordships thought that they plainly had jurisdiction under the prerogative to grant special leave in that case. The case is plainly distinguishable from the present case.

However, it is plain that the Court does have jurisdiction to entertain an application by the applicant against the order refusing leave to extend the time to appeal against the costs order. Nevertheless such an order is a most unpromising vehicle for the grant of special leave to appeal. Both before and after the amendments to the Judiciary Act in 1984 this Court has made it plain that it will only be in very exceptional cases that the Court will grant special leave to appeal against a costs order. Here the order which is the subject of the application is an order refusing leave to extend the time for appealing against a costs order, an even harder case for the grant of leave in this Court.

In addition, in this particular case, there are very considerable difficulties in the way of the grant of special leave to appeal. The order, as I say, against which the applicant would be seeking to appeal would be an order refusing to extend time for his cross-appeal. The application to extend time was made well out of time. It involved discretionary considerations and I do not see any grounds upon which the exercise of that discretion arguably miscarried. But I can pass that by. The fact that the judgment is a discretionary one is by itself significant. In addition, the order for costs itself is a discretionary judgment which this Court would be asked to interfere with.

Although it was not relied upon by the Court of Appeal, it is perhaps also relevant to point out that the trial judge thought that the issue of illegality was raised for improper purposes. Although Justice Dowsett said that he suspected that his Honour may have been correct in his view, he was not satisfied that such was the case. However, I mention the matter because, either on a special leave application or in the course of determining an appeal granted pursuant to the grant of special leave, this Court would itself have to consider that issue in determining whether the costs order was wrongly made.

On the whole, I have no doubt that the applicant has very little prospects of obtaining a grant of special leave to appeal. The matters that I have mentioned constitute formidable hurdles in the path of the applicant.

In addition, as I have said, expedition could only be granted if I was satisfied that the issues involved in an appeal by the applicant are relevant to the issues in the Superclinics appeal. It may well be the case that, on certain contingencies being satisfied, questions involved in the Superclinics Case would become relevant to the determination of the present applicant's appeal if it was granted. But there are a number of contingencies that would have to be satisfied before that could happen. One of them is whether the plaintiff had acted contrary to the standards of the profession even if he had performed abortions in breach of the Code.

I have already pointed out that in determining the issue of justification, the Court of Appeal assumed that the plaintiff had acted illegally and in breach of section 224 and 282. That being so, the issues in an appeal, if leave were granted, may ultimately be quite different from the construction of section 83 of the New South Wales Crimes Act which is in issue in the Superclinics appeal and which is similar to section 224 of the Code. The construction of section 224 may never become an issue in the present case if leave to appeal is granted. However, the construction of section 83 and section 224 respectively are the only issues that the two cases have in common.

For those reasons, this is not, in my view, a case for the grant of expedition.

Finally, if I am wrong in the view I take about the applicant's prospects of obtaining a grant of special leave, it does not seem to me that the refusal of this application for expedition prejudices the applicant. Both on a special leave application and on any appeal that was subsequently granted, he will be able to raise the issues that form the basis of his claim for expedition. Accordingly, the summons for expedition is dismissed.

MR POPE: I ask for costs of the summons, your Honour.

HIS HONOUR: Yes. Have you anything to say about that?

MR QUINN: Yes, your Honour. Your Honour's reasons depend substantially upon protection of the prospects on the special leave application, a matter that will, in due course, be determined as a matter of certainty rather than prediction. In that circumstance, in my submission, the appropriate order might be to reserve the costs to the Court hearing that application or to make the costs the respondent's costs in the special leave application. Those are the submissions.

HIS HONOUR: Yes. What do you say about that, Mr Pope?

MR POPE: My client has been put to the additional expense of this application, no matter what happens. There is no reason why he should not have them today.

HIS HONOUR: Yes. Although there is some force in what Mr Quinn has said, I think the proper order is that the application should be dismissed with costs. I also certify for the attendance of counsel. Is there anything further?

MR QUINN: No, your Honour.

MR POPE: No, thank you, your Honour.

HIS HONOUR: Thank you very much, and thank you for your assistance, Mr Quinn. It was most helpful.

AT 11 .27 AM THE MATTER WAS CONCLUDED