Hanley & Ors v Morris S268/2001 [2002] HCATrans 244 (14 May 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S35 of 2002

B e t w e e n -

SDN CHILDREN'S SERVICES INCORPORATED (formerly known as SYDNEY DAY NURSERY SCHOOLS ASSOCIATION INC)

Applicant

and

LINDA HUGHES

First Respondent

JACOB HUGHES

Second Respondent

Office of the Registry

Sydney No S268 of 2001

B e t w e e n -

JACK NORMAN HANLEY

GEOFFREY DONALD REID

LYNDA MAREE COLE

CHRISTINE VALMAE HAYWARD

ANTHONY BODYCOTE

ROBYN JANELLE HAYDON

DAPHNE OLIVE BOYD

BEVERLEY JOY ARMFIELD

GAYLE HANLEY

CECIL BELLCHAMBERS

MARIANI HOLDINGS PTY LTD

Applicants

and

JANINE MORRIS

Respondent

Office of the Registry

Sydney No S48 of 2002

B e t w e e n -

R

Applicant

and

P

Respondent

Applications for expedition

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 14 MAY 2002, AT 10.15 AM

Copyright in the High Court of Australia

MR J.G. POULOS, QC: If your Honour pleases, I appear for the applicant for special leave. (instructed by NRMA Workers Compensation (NSW) (No 2) Pty Limited)

MR J.R. CLARKE: May it please the Court, I appear for the respondents. (instructed by Charlton Shearman)

HIS HONOUR: I have read the papers in this matter. I need not hear counsel. I propose to give judgment in these matters in bulk, so to speak, so I will call the second matter.

At 10.16 am Hanley & Ors v Morris was called

MR P.T. TAYLOR: May it please your Honour, I appear for the applicants. (instructed by Parker & Kissane)

MR J.R. CLARKE: Your Honour, I appear for the respondent. (instructed by Messrs Maxwell & Co)

HIS HONOUR: Yes, Mr Taylor.

MR TAYLOR: Your Honour, the applicants move on a summons.

HIS HONOUR: Yes, I have read all the papers in this matter. Now, the situation is that the next hearing day for special leave applications is 31 May and the list is full. So is the list for 9 August. However, for various reasons, two vacancies occur in the list for each of 21 June and 13 September. But this case is set down for 17 June. It could not be heard before 21 June. What is the point about making an expedition order?

MR TAYLOR: Your Honour, if it was impossible to determine the application before 17 June, there would be no value in an expedition order. There was a hope, given that the applicants' application expressly declined to put any oral submissions in addition to the summary of argument, that it may be possible to have heard it before 17 June.

HIS HONOUR: What does the respondent say about - you want to put oral argument in the matter or - - -

MR CLARKE: Your Honour, I am not instructed in relation to the special leave application proper. I do not have instructions as to whether the respondent would want to put oral submissions. I could obtain those instructions, but if it was - - -

HIS HONOUR: Well, I have read the matter. It is not a case for expedition. I am going to say something in a judgment later on about expedition in this Court. There seems to be some complete misunderstanding about having special leave applications expedited. But if the parties are agreeable, it may be that the Court can deal with the matter on the papers and deal with it before 21 June, but I am not prepared to displace the matters - there are already 12 matters listed for 31 May and experience teaches that that is just as many cases as the Court can handle in one day. So you may get some instructions about the matter. Obviously it is important that the hearing date should be kept, if possible. Probably the case will proceed in any event. I do not know. It is a matter for the New South Wales Supreme Court. Anyway, you might get some instructions and both parties can let the Registry know about it.

MR CLARKE: Certainly, your Honour.

HIS HONOUR: Call the matter of R v P.

At 10.19 am R v P was called

MR S.G. CAMPBELL: If it please the Court, I appear for the applicant. (instructed by Connery & Partners)

MR K.W. ANDREWS: I appear for the respondent. (instructed by Neville Wyatt Lawyers)

HIS HONOUR: Well, you heard what I said, Mr Campbell. This matter is fixed in the District Court on 6 June, I think, is it not?

MR CAMPBELL: Yes, your Honour.

HIS HONOUR: And it cannot possibly be heard, on any view, before the 21st. That being so, the application seems rather futile, does it not?

MR CAMPBELL: I understand what your Honour is saying.

HIS HONOUR: Yes, and the affidavit on your side says that it is likely that an adjournment could be obtained in the District Court.

MR CAMPBELL: Yes, your Honour.

HIS HONOUR: Obviously that is the place to apply.

MR CAMPBELL: Yes, your Honour. Could I only say for the benefit of my client, if your Honour would permit me to, that given the age of the matter, we hope to advance it at this last stage, but thank you, your Honour, for making those comments.

HIS HONOUR: Yes, thank you. I will now give a judgment in each of these three matters.

Three applicants for special leave to appeal in three separate proceedings seek expedition of their special leave applications. An application for expedition of a special leave application in this Court is not comparable with an application for expedition of a proceeding in other courts.

First, an application for special leave is an application for permission to commence proceedings in the Court. For that reason, there are no parties in the proper sense of that word to an application for special leave to appeal. Nor is there any matter in the Court until leave is granted.

Second, there is no right to special leave. Moreover, the judgment that is the subject of the application is not a provisional judgment, having no effect or efficacy until its validity is confirmed by this Court. The judgment of the court below represents the rights and liabilities of the parties and, when entered, it can be immediately enforced unless this Court sets it aside or there is an order of this Court or the lower court staying the judgment.

Thirdly, no special leave application can be or ought to be brought unless it involves some matter of public importance or a miscarriage of justice. There is no miscarriage of justice in the relevant sense merely because it appears that the decision below was wrongly decided. If error alone constituted a miscarriage of justice, every arguably wrong decision would be a candidate for special leave to appeal. By "miscarriage of justice", I mean such a departure from the rules that govern judicial procedures as to make the decision of the court below not a judicial decision in the proper sense of the term and therefore one where the interests of the administration of justice require the grant of leave.

Before examining and hearing a special leave application, this Court must proceed on the basis that applications for special leave that are pending in the Court are properly brought. That has the result that in hearing an application for expedition the Court must proceed on the basis that other pending applications are either of public importance or involve a miscarriage of justice. Regrettably, over 85 per cent of applications for special leave to appeal do not have the requisite qualifications and are dismissed. Many of them should not even have been filed in the first place.

Despite these melancholy statistics, the Court can only proceed on the basis that all pending applications are of public importance or involve a miscarriage of justice. Many pending cases also involve the liberty of the subject. They concern persons serving gaol sentences or being detained in refugee detention centres. If an application for expedition is successful, it means that another application must lose its relative priority. In these circumstances, very strong grounds, particularly in a civil case, are needed before an application for expedition can succeed.

The need to maintain the temporal priority of applications is reinforced by the increasing number of special leave applications. The number of applications for special leave has increased 787 per cent since 1984, yet the Court has the same number of Justices as it did in 1984. Panels of three Justices consider each leave application, although often only two Justices will hear the application. The Court has been forced to set aside many more days for hearing special leave applications than was the case when I was appointed to this Court in February 1989. So many hearing days and out of court time of the Justices are now taken up with leave applications that it seems impossible to give any more time to leave applications without affecting the Court's capacity to continue to perform its appellate and constitutional jurisdiction in a proper manner.

As a result of the increasing number of applications, the time between filing and the hearing of applications is continuing to increase. This makes it all the more important than an application for special leave not lose its temporal priority unless the application seeking expedition has some urgent aspect or need that is different in kind from that of other pending special leave applications.

As I have pointed out to the counsel for the parties in these applications, the next hearing day for special leave applications is 31 May. On that day the list is full. So is the list for 9 August. However, for various reasons, two vacancies have arisen for the 21 June list and for the 13 September list. I will now consider each of the three applications.

In SDN Children's Services Inc. (formerly known as Sydney Day Nursery Schools Association Inc.) v Hughes, the application for expedition is not opposed by the respondents. The applicant seeks special leave to appeal from the whole of the judgment of the New South Wales Court of Appeal which allowed an appeal from a decision of Mr Justice Studdert. The Court of Appeal ordered that judgment be entered for the first respondent in the sum of $150,000 and for the second respondent in the sum of $4.5 million. Both judgments were to take effect from 30 May 2000.

The proceedings that are the subject of this special leave application relate to a claim for damages by the first respondent and her son, the second respondent, arising from the negligence of the applicant in failing to warn the first respondent of the dangers of contracting a herpes-type virus which resulted in the second respondent being born with significant disabilities. Those disabilities include cerebral palsy, neural deafness and mental retardation.

The special leave application grounds are that the decision of the New South Wales Court of Appeal is unsatisfactory by reason of errors of fact in its reasons, setting aside or not adverting to findings of fact made the trial judge, and the conduct of the matter in the Court of Appeal. After the Court of Appeal gave its judgment, Justice Handley ordered a stay of the execution of the judgment. The stay was granted on the condition that the applicant, among other things, file an application for expedition in this Court.

In my opinion, the application for special leave to appeal should be expedited. The first respondent is effectively impecunious and the costs of caring for the second respondent are quite high. The respondents have judgments for substantial amounts of money in their favour, to which they cannot get access while the stay order is in place. Although the special leave application may not be hopeless, it does not seem to be the strongest of special leave applications. If the application is refused, the respondents will obtain immediately their judgment moneys.

In those circumstances, I think that it is a proper case to expedite the hearing of the matter. I would order that the matter be expedited, to be heard in the list for 21 June.

The next matter is Hanley v Morris. In this matter the applicants seek special leave to appeal from a judgment of the New South Wales Court of Appeal which allowed an appeal from the decision of Mr Justice Young. Mr Justice Young had acceded to the applicants motion for security for costs in relation to proceedings brought by the respondent for breach of fiduciary duty. The Court of Appeal set aside his Honour's orders.

The trial of the primary proceedings is set down for hearing on 17 June for four weeks. As Mr Taylor, who appeared for the applicant, recognised, if special leave is not heard prior to that date, this application will have no utility. The application cannot be heard before 17 June. I am not prepared to displace any case in the 31 May list. I do not think there is anything so special about the case that would entitle it to priority over other applications.

I then deal with R v P. This summons is not opposed by the respondent. There is perhaps a ground of some importance in the case. One of the special leave questions said to arise is whether the failure to object to evidence, clearly inadmissible by reason of client/lawyer privilege, in an interim application under section 13 of the Protected Estate Act 1983 (NSW) precluded the point being taken on appeal and the appeal being upheld.

This matter has been fixed for hearing as a long matter in the District Court for 6 June of this year. The affidavit of the applicant's solicitor in support of the summons for expedition states that, although it is likely that an adjournment could be obtained in the District Court, it is desirable that those proceedings be finalised at the earliest possible time. But in my opinion the application for expedition should be refused. I do not think it is a case that would warrant expedition. In any event, even if special leave were granted, the appeal would not be able to be heard and determined prior to the date for which the hearing is listed in the District Court. Accordingly, it seems likely that the District Court hearing will need to be vacated in any event.

In those circumstances, the applications in Hanley v Morris and R v P are dismissed.

Does counsel want to say anything about costs?

In SDN Children's Services Inc., the costs of the application shall be costs in the special leave application. In respect of the matters of Handley and R, the applicants must pay the costs of the applications.

Would you adjourn the High Court of Australia and open the Court of Disputed Returns.

AT 10.36 AM THE MATTERS WERE CONCLUDED