Micallef v ICI Australia Operations Pty Limited & Anor S220/2001 [2002] HCATrans 309 (21 June 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney Nos S220 and S221 of 2001

B e t w e e n -

ELIZABETH MICALLEF

Applicant

and

ICI AUSTRALIA OPERATIONS PTY LIMITED

First Respondent

FIBREMAKERS AUSTRALIA PTY LIMITED

Second Respondent

Applications for special leave to appeal

GLEESON CJ

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 21 JUNE 2002, AT 11.19 AM

Copyright in the High Court of Australia

MR J. BASTEN, QC: Your Honours, I appear with MR D.E. BARAN and MS A.P. HEALEY in these two matters, if the Court pleases, for the applicant. (instructed by GH Healey & Co)

MR J.N. WEST, QC: May it please the Court, I appear with my learned friend, MR G.B. EVANS, for the first respondent in each of the appeals. (instructed by N.W. Aussel)

MR P.J. DEAKIN, QC: If the Court pleases, for the second respondent in each matter with MR H.N. NEWTON. (instructed by PricewaterhouseCoopers Legal)

GLEESON CJ: Yes, Mr Basten.

MR BASTEN: Your Honours, the primary basis on which the applicant put her case in the Court of Appeal was that the matter of dismissal should be approached primarily on the grounds that delay must be shown to give rise to a substantial risk that a fair trial would not have been possible and in that respect have caused prejudice to the defendants.

GLEESON CJ: Unexplained delay.

MR BASTEN: Unexplained delay on the part of the plaintiff below, that is so, your Honour, yes. There may be a second question as to whether the prejudice might be caused in some other way and I will turn to that in a moment.

Your Honours, we say the case illustrates a significant departure from the approach which has been applied in reported cases at appellate level in various jurisdictions in this country because of the way in which the questions were addressed. Your Honours, the trial judge himself made no finding that there could not be a fair trial, nor did the Court of Appeal. May I take your Honours to paragraph 57 at page 64 of the application book where Justice Heydon makes it clear at about point 2 on the page that his Honour thought it was "not necessary to decide" that question and, with respect, we say that that was the critical issue to be determined in these cases. Page 64, I think your Honours, at point 2. In any event, his Honour noted at point 5 on the page that the relevant "delay in the District Court" was not a major factor tending to make a fair trial impossible in any event.

GLEESON CJ: Does it amount to this in your submission, that unexplained delay and failure to comply with directions on the part of a litigant can never justify dismissal of the action unless it can be demonstrated that it is impossible to have a fair trial?

MR BASTEN: Not necessarily. We do not put it quite as high as that, your Honour. Your Honour says "unexplained". There may yet be inferences which could be drawn about the nature of the delay. In Birkett v James the House of Lords accepted that if one could categorise the delay as intentional and contumelious that might itself be sufficient and we would accept that. That was an issue which was also addressed in the Court of Appeal. We complain about the way that was addressed. So my answer to your Honour's question is, not necessarily.

GUMMOW J: What do you say about paragraph 15 in your revised outline? The second sentence says:

The trial judge (and the Court of Appeal) had material before them, from the solicitors, expressly denying any fault on the part of the Plaintiff.

Is that referred to anywhere?

MR BASTEN: Yes, it is referred to by Justice Heydon in his summary of what happened on 26 February where he sets out the part of the statement which had been supplied by the solicitors in accordance with the form required. I am sorry, I just need to find that passage. The form is set out at page 42 and it is a statement which was made in response to that form in which the solicitors accepted that they had been remiss in failing to do something before Christmas and that the matter had then become caught up in the Christmas/New Year break and hence the amended particulars had not been filed until 25 February.

GLEESON CJ: But where is the material expressly denying any fault on the part of the plaintiff? Referred to I mean.

MR BASTEN: It actually says there that it was not the fault of the plaintiff. It is at the top of page 57, your Honour, at about point 2, it is the extract from the solicitor's statement:

A further Statement . . . has now been filed, although filed on 25 February 1999 without any fault on the part of the Plaintiff personally.

So, that is the solicitors, as it were, accepting the responsibility and the reason that they give, not a justification but an explanation, is at point 6 on that page. The "date in November" was overlooked and that "led into the pre-Christmas rush". So, it is the solicitor's own conduct which they accept. They then state, as part of what has been a level of prevarication on their part in the District Court, that these were simply not necessary and that the amended particulars of the disabilities did not more than itemise, as it were, what had been provided in Dr Champion's report of April 1998.

GUMMOW J: I am sorry, where is the statement that the plaintiff herself was - - -

MR BASTEN: At the top of page 57, your Honour, in the quoted passage at point 2.

GUMMOW J: I see.

MR BASTEN: "A further Statement . . . has now been filed".

GLEESON CJ: And then the next sentence.

MR BASTEN: This "does not explain the two earlier non-compliances". That is true, your Honour. What happened, of course, was that the very judge who struck the matter out had on 8 October accepted the plaintiff's statement that it was ready for trial and set a date for arbitration. No further directions were made on 8 October and the plaintiff's solicitors may well have assumed at that stage that the orders which had previously been made were now accepted as not being necessary.

GLEESON CJ: May have assumed. Was there any evidence about that.

MR BASTEN: No, there was no evidence about that, your Honour, but no directions were made for further statements, the matter was simply set down for an arbitration in early February 1999. That order was ultimately set aside by a different judge who then made the further directions of which complaint was made and the explanation given on page 57.

GUMMOW J: Paragraph 16 of your submissions seems to put some obligation on the court in these circumstances to deal, as it were, directly with the client rather than accept the medium of the solicitor.

MR BASTEN: Your Honour, if there is some doubt about - it may not have been necessary if the statement which exonerates the plaintiff was accepted as, with respect, perhaps it should have been, although it was not expressly adverted to. But in circumstances where it is thought that the plaintiff is going to have her action struck out through no personal fault and perhaps not knowing about the threat to her case because of the fault of the solicitors then that matter may need to be dealt with.

GLEESON CJ: How can the court inquire as to what is going between on between a solicitor and the solicitor's client?

MR BASTEN: It may be appropriate in a particular case, your Honour, to require the solicitors to give their client a copy of the document and obtain an acknowledgment from her that she understands the position. There is, in Stollznow v Calvert, your Honour, express reference to the blameworthiness of the plaintiff personally in these circumstances and that may need to be investigated.

GLEESON CJ: How does the court investigate, as between the solicitor and the solicitor's client, where the fault lies, except to the extent to which evidence of that is volunteered to the court?

MR BASTEN: It may not be necessary in a case such as this where the solicitors accept the fault themselves. What we really complain about in this case is that the court should have accepted that the fault lay with the solicitors and not with the plaintiff and that should have been a material consideration in determining whether or not, in balancing the interests of the parties, it was appropriate to dismiss this claim.

GLEESON CJ: Is that right to say that the solicitors in this case accepted the fault themselves? They rather minimised the fault, did they not?

MR BASTEN: They minimised their own fault, your Honour, but accepted, to the extent that there was fault, it lay on them. That is how we would understand that statement and there is no suggestion that the trial judge thought otherwise in relation to that. Our complaint really is no more than that the blameworthiness of the plaintiff, or the lack of fault on her part, was not addressed.

Your Honour, the second question is whether there was prejudice to the defendants and whether it must be in some particular itemised respect. As appears at page 64, paragraph 58 of his Honour's judgment, the defendants did not set out to prove any specific prejudice in this case and as his Honour acknowledged, the failure on their part to establish "any prejudice by evidence has considerable force". The question is whether it was then possible to infer prejudice from general circumstances and whether it was inappropriate in the circumstances of this case to treat costs as being an effective disciplinary measure or whether it should be treated as an unrealistic burden on the plaintiff. It was that approach which was adopted by his Honour in the following paragraphs and which we say is not an appropriate approach and it is inappropriate in terms of principle.

We refer in the submissions to Smaller's Case in the English House of Lords in which Lord Griffiths accepts, at page 16 of the bundle, page 1208 of the judgment in that matter at about point 3 on the page, that the wasted time in the court should properly be dealt with by costs where there has been inordinate delay. That was not the approach adopted and, with respect, we say that that was an error.

Thirdly, the prejudice which was accepted by the Court of Appeal was twofold and it dealt with at page 66 at point 5 to 6 on the page. Firstly, in relation to wasted effort, the costs orders were seen as no salve because of the assumed impecuniosity of the plaintiff and the apparent irrelevance of the possibility of a costs order against the solicitors. Secondly, it was said on the basis of two facts that there was no expectation of future diligence. That appears in the passage beginning at point 5, the line starting "inference flows from two matters in combination":

The fact is that if the plaintiff had a desire to have her case heard quickly she would, after the extreme delays in the Supreme Court, have leapt at the chance of a speedy District Court hearing.

With respect, his Honour omits to note at that point that on 8 October she accepted an arbitration date and said her case was ready for hearing. The second point his Honour notes is that:

not only did the plaintiff not seize that chance, she positively obstructed it.

But it was the respondents who came back the following month and sought to have that date vacated. So that, with respect, even on the general circumstances there was no proper finding of prejudice against the defendants. One reads cases like Stollznow v Calvert and the English cases, every one of them discusses prejudice in terms of evidence of witnesses who are not available, of witnesses who cannot be found, of documents which have been destroyed, and an assessment of how important that material would be at a hearing. There is none of that material available in the present case.

GUMMOW J: Was there any submissions put one way or the other as to the substance on the merits of the plaintiff's case?

MR BASTEN: No, it was never suggested that this was not a substantially arguable case on the merits and there is no discussion of that in the trial judge's judgment, your Honour.

Finally, your Honours, in terms of the approach which was adopted, may I return to pages 61 to 62 at which his Honour suggests, starting at the top of page 61, that the "intentional and contumelious" conduct, or behaviour limb, of the Burkitt test was, in any event, satisfied.

GLEESON CJ: Page 61 did you say?

MR BASTEN: Top of page 61 of the application book, your Honour. He says by inference "each default was intentional and contumelious" and he says that flows from a number of circumstances.

Your Honours, firstly, no such finding was made by the trial judge so one finds no support in the discussion of the evidence of the trial judge in relation to this matter. Secondly - - -

GLEESON CJ: Wait just a minute, on page 15 what the trial judge says is:

Orders of the Court are made. Orders of the Court are breached. The case comes back before the Court time and time again . . . It is unfair when some litigants ignore orders of the Court, where they do not comply with timetables, where they do not promptly prepare their cases for hearing - - -

MR BASTEN: That is his second judgment, yes. That seems to be a question of unfairness to other litigants.

GLEESON CJ: It sounds like intentional and contumelious behaviour.

MR BASTEN: Your Honour, it is a broad statement. In order to understand precisely what his Honour meant, with respect, it is necessary to note that there were directions initially given on 25 March 1998, I think, which required the particulars to be filed within two months. That, it is true, was not complied with. There was a further hearing on 25 August in which particulars were ordered, but on 8 October the matter is treated as ready for trial, so that the question - - -

GLEESON CJ: What do you say about - - -

MR BASTEN: I am sorry.

GLEESON CJ: At page 61, line 45, it gets back to the point you were making earlier:

No sworn explanation was ever offered for any of the three instances of non-compliance, and no explanation at all for the first two -

The third was then explained in the matter that you have already referred us to.

MR BASTEN: Yes. Well, at the time of the hearing before his Honour on 26 February 1999, that was the first time the matter had been back before his Honour before he listed it for hearing. His Honour says that the hearing before the arbitrator was vacated because of failure to comply with orders. There was no evidence of that and there was no evidence that there were orders in force which then required explanation. But his Honour had not required explanation on 8 October of the first two matters, he had simply listed it for hearing. Now he suggests that explanation should have been given afterwards despite the absence of any breach of the earlier orders being relevant to his earlier hearing of the matter. So, we do not see that as involving - it may be that the plaintiff's solicitors should have explained it but there were plenty of reasons why they might have thought by that stage that that delay had been treated by his Honour as not relevant.

GLEESON CJ: But we just do not know.

MR BASTEN: No we do not, that is why it - - -

GLEESON CJ: For all we know the explanation is that the solicitors could not get proper instructions from their client, and we do not know why. We just do not know.

MR BASTEN: Your Honour, we would say that that inference should not be drawn against the plaintiff.

GLEESON CJ: It is not an inference, it is a statement of ignorance.

MR BASTEN: Yes, that is so, but it is a serious matter to suggest that the plaintiff has been intentionally and contumeliously in contravention of orders. In circumstances where it is - - -

GLEESON CJ: But it is where it is - - -

MR BASTEN: I am sorry, if I might just finish the sentence. It is clear on 8 October that the plaintiff's solicitors are saying, "We do not need to do any of this. We do not want to put on further particulars or evidence. The matter is ready to go for an arbitration."

GLEESON CJ: The capacity of the court to go behind the solicitor to investigate the conduct of the plaintiff is limited by legal professional privilege.

MR BASTEN: I accept that, your Honour.

GLEESON CJ: And by the proper function of the court. Now, you have to say do you not, that the inference stated on page 61 in the second sentence in paragraph 54, was not open or was wrong.

MR BASTEN: We do, your Honour, yes, or involved a different approach to the question of what was intentional and contumelious than that which had been applied before by the courts and we think it may be rather the latter because this was not an inference - I take your Honour's point about the second judgment given by Judge Garling which your Honour took me to. It was not an inference he expressly drew in the first and only really by inference would one say he went to that stage in the second.

So, that we do not understand his Honour to have dismissed the matter on that basis at all and it may well be appropriate to say that the solicitors were remiss in their approach to the matter in the District Court during two periods in 1998 and early 1999. It is also appropriate to say that they prevaricated in November as to whether or not they did wish to file further particulars. They originally said, or counsel appearing for them, said they did not, and then the judge questioned it and he took further instructions and came back and undertook to do that. Then that was not complied within the time limits, as noted. But, with respect, it is rather different to say that that sort of conduct is of such a kind that the plaintiff's case, prepared over many years, 19 medical reports obtained and served, fully pleaded, never the subject of a peremptory order, should be dismissed without a hearing.

GLEESON CJ: On the top of page 63, the bottom of page 62 and the top of page 63, reference is made by Justice Heydon to "the absence of any testimonial explanation" of the plaintiff's conduct. And that remains the position. The plaintiff is still represented by he same solicitor and we are not being invited to deal with the matter on the basis that the plaintiff was, at any time, other than adequately represented.

MR BASTEN: No, that is so, your Honour, I am not suggesting that because I do not understand there to have been any suggestion that the plaintiff herself was responsible for the delays and that would have been - - -

GLEESON CJ: When you say no; who knows?

MR BASTEN: Who knows?

GLEESON CJ: The court is confronted with a situation where there is a solicitor on the record and orders are not being complied with. How does the court know, in the absence of any evidence, whose fault that is, as between the solicitor and the client?

MR BASTEN: The court can only draw the inferences from the available material. The point that his Honour was making there, I think, was that there might have been a distinction properly drawn between the statement filed in accordance with the court rules and the possibility of an affidavit being put on. But, your Honour, accepting all those questions as matters of inference, the same criticism could be made of the defendants who put on no evidence of any prejudice to them and there was no material before the court which pointed clearly to the fact that there would not be a fair trial of the matter. It is really those matters, your Honour, which we say, ultimately, should have been considered and were not.

GLEESON CJ: Thank you, Mr Basten.

MR BASTEN: If the Court pleases.

GLEESON CJ: Yes, Mr West.

MR WEST: Your Honours, the case which the applicant presents, in our respectful submission, takes no proper regard to the reasons for which the trial judge dismissed the proceedings. He did so for five reasons: the extremely long delay to bring the case on for hearing; secondly, the appearance of a total lack of diligence on the part of the plaintiff; thirdly, numerous non-compliances with orders of his court; fourthly, prejudice suffered by the defendant and, finally, he found that the case fell into that category of case which are not being prepared and were obstructing the court's attempts to get it on for hearing.

Your Honours, in so far as prejudice was concerned, that matter arose essentially from three areas. The first being the sheer passage of time. By the time the matter came before the District Court on the application to terminate it summarily, it was 10 years old. Of itself, the passage of time, as this Court has said more than once, in the Brisbane Area Health Case most recently, has its effect on memory, the loss of documents, the capacity of a person properly to do justice to their own case. That was one matter.

The second one was that the plaintiff's particulars had changed dramatically. They had been ordered to be filed by Judge Ainslie-Wallace in 1998 in November, when, after the trial judge had sent the matter for arbitration over the objections of the respondents. The respondents moved to set aside those orders and were successful. The respondents had been unsuccessful in attracting the court's aid in preventing it going to arbitration because they had not filled out a form and the court was not prepared to give them any indulgence. So, they went away and filled it out and then made an application to have the orders vacated. That led to Judge Ainslie-Wallace making a number of observations, apart from orders, which I will come to shortly.

The third issue about the prejudice goes to the fact that the plaintiff had been forecasting, not unsurprisingly, that they would need expert assistance to prove their case. They would need to prove the circumstances, the nature and conditions of the work that was performed. The defendants had been seeking to obtain those reports. They were not forthcoming. Even when the matter came back before the trial judge in February 1999 those reports were not on even though Judge Ainslie-Wallace had made provision that any such report should be filed by the date nominated by her. That date was to deal with not only the reports but also the particulars which had changed dramatically and changed the case as the trial judge found in his judgment on the termination of the proceedings.

They were matters of significant prejudice or likely significant prejudice. His Honour Justice Heydon in the Court of Appeal gave those matters a very great deal of attention and he came to the view that there was active prejudice in this case even though the allegations which had been made by the respondents in an affidavit filed to that effect had done little more than crinkle at the edges of that issue. But plainly there was other evidence which enabled the court below to be satisfied about that matter. The fact that there had been numerous non-compliances with orders of the court remains as, with respect, is obvious in the debate that has taken place here this morning, unexplained and that remains the case.

They were matters which a good deal of attention was given to. Judge Ainslie-Wallace had drawn the attention of the plaintiff to the fact that the court had grown tired of the dilatory conduct of the proceedings and could expect little or no comfort in the event that the orders were not complied with. They were not; an application was brought to terminate the proceedings and that was successful. What Judge Ainslie-Wallace said, as extracted by his Honour - - -

GUMMOW J: Page 44?

MR WEST: Yes, that is it. Beginning at page 44, in paragraph 36 - I will not read it out aloud, all of it, but may I just run down and paraphrase it, your Honour. There was exchange between the legal representative of the plaintiff about whether or not the time had now come to get final instructions about what was to happen. Caution being the better part of valour, those instructions were obtained and thereafter the judge made some notes and said, after making orders on page 45, about line 40:

I used to think that what would suit the court was for people to comply with the directions that it made, but it seems to me sitting here that that's simply the attitude of a Pollyanna.

Her Honour then commenced to make the orders and gave the directions concerned. On page 46 of the application book, her Honour is quoted as saying this, at about line 16:

you might pass on to those who are instructing you that if these orders aren't complied with, the court will list this of its own motion to have it struck it out for want of compliance with the directions. That might galvanise a bit of interest in the matter.

And his Honour Justice Heydon observed that was a matter of considerable consequence and, in our respectful submission, it was. It is the more so that the dilatory conduct of the matter, the failure to comply with the earlier orders, remains to this day unexplained. And in those circumstances, in our respectful submission, his Honour the trial judge was faced with, in effect, a recalcitrant litigant and in circumstances where the available provision of the rule under which the defendants had moved gave him a very broad discretion to exercise in the light of all the circumstances of the case. He did that.

In our respectful submission, in doing so his action disclosed no appellable error. The matter had to come before the Court of Appeal upon the basis that it fell within House v The King, and it did not. There was no error of law, no error of fact and Justice Heydon, with whom the other two justices agreed, made it clear that the way the case had been presented to them was that there was Stollznow v Calvert and there was the English authority. There was a debate as to which of the two imposed the more stringent test. Birkett v James was given the recognition that that was so but it was never argued that Stollznow v Calvert was not the law of New South Wales or that Birkett v James had become it. The differences in approach between the English courts and the Australian court was clear but the Court of Appeal was never asked to reconsider the correctness of Stollznow v Calvert and it did not do so.

But Justice Heydon approached the case on the basis on which it had been presented, namely, that, on the principles in Birkett v James, the appellant would nevertheless have failed. That finding is set out clearly in the judgment sought to be appealed against. The Court of Appeal, therefore, was never asked to reconsider Stollznow v Calvert. In any event, it decided that on the facts as the plaintiff wished to present its case, the case must fail. In those circumstances, in our respectful submission, there is no conceivable ground for a grant of special leave.

GLEESON CJ: Yes, Mr Deakin.

MR DEAKIN: We respectfully adopt those submissions. The real criticism we make of how the matter is being presented to your Honours is that it is treating the judgement of the Court of Appeal as if it depended solely upon findings that derive from Birkett v James and as my learned friend, Mr West, has just put to your Honour the approach which the Court of Appeal adopted upon proper analysis was apply the usual principles that are applicable to a review by an appellate court of the exercise of discretion by a trial judge on a matter of practice and procedure, the House v The King criteria. He went through those carefully and in some considerable detail and found no error of principle and no grounds upon which any interference should be made with the exercise of the trial judge's discretion. Because Birkett v James had been relied upon, his Honour went further and said let us apply the higher standard, from a defendant's perspective, that Birkett v James laid down which talks of matter such as inordinate and inexcusable delay and matters of that kind. The Court of Appeal held that in addition, even if one applies that higher standard, this plaintiff fails on those grounds as well.

There is no error demonstrated in either of those matters. As my learned friend, Mr West, has put to your Honours Stollznow v Calvert is the law of New South Wales, it lays down what is the test in New South Wales that is required to be applied in dealing with cases of this kind. There was no submission put that Stollznow v Calvert should be overruled.

GUMMOW J: I used to apply it in the Federal Court.

MR DEAKIN: Yes. My friend has made oblique reference to cases in other jurisdictions in which the Birkett v James test survived. What we would put to your Honours, deriving from the rules in those other jurisdictions, is none of those other jurisdictions have a rule equivalent to Part 5, rule 12, of the Supreme Court, or the relevant rule in this case, Part 18, rule 3. They are materially indistinguishable, the Supreme Court and the District Court Rules, but none of the other jurisdictions have any such rule. The starting point for a proper analysis of this case, in our respectful submission, is what does the rule say and has it been satisfied?

The rule says, as your Honours know, that the court of its own motion, quite apart from the defendant's rights to do it, the court of its own motion may dismiss proceedings if they are not pursued with due dispatch or if there has been a breach of the orders.

Each of those matters are clearly made out in this case and is of no assistance to my learned friend to be able to say there is some doubt a finding based upon inordinate and inexcusable delay because not all of it is established as having being laid at the plaintiff's door. I think that has been dealt with in discussions with your Honour. But inordinate and inexcusable delay is not what this rule talks of at all. It talks of due dispatch which is very different, with respect. Each of those matters were satisfied in this case, each of them were relied upon by the trial judge and the Court of Appeal correctly concluded there was no error of principle on the part of the trial judge and that should be an end of the matter, with the greatest respect.

What other jurisdictions may have dealt with in relation to different rules that bore no resemblance to these rules at all is simply beside the point. If one examines what has happened to Birkett v James in the United Kingdom is being abandoned. As your Honours are probably aware, and we have referred to this in our written submissions, the procedural rules that are now laid down - - -

GLEESON CJ: It has been caught in the Woolf reforms, I presume.

MR DEAKIN: Yes, exactly, and the ball game is substantially altered and Birkett v James is no longer applied in England under the current authorities, in part, in fairness, because the rules have changed as well, but the English rules do not resemble anything that is appearing in either of the Supreme Court Rules or the District Court Rules in this State. So, your Honours, Birkett v James is dead in the United Kingdom. To the extent that it has been referred to in other jurisdictions within Australia, it depends upon the particular rules in those jurisdictions which are very different, we emphasise, from the rules of the District Court and the Supreme Court in this State.

We do submit that is a matter for the District Court applying its own rules to determine what rules of procedure and what requirements are laid down by that court for the conduct of the huge volume of litigation that that court has to deal with. Absent error of principle, falling within the House v The King criteria, that court's approach should not be interfered with and has not been interfered with by the Court of Appeal in this case. Absent some error of principle on the part of the Court of Appeal, which, in turn, we would submit would be accepted as being the appropriate court for determining what are the principles governing review of the exercise of a discretion by a trial judge, should be a matter for the Court of Appeal and it has consistently taken the same approach to those matters since Witten v Lombard in 1968 and there is no reason at all demonstrated as to why that position should be altered.

So, your Honours, we would submit is not an appropriate matter for the grant of special leave.

GLEESON CJ: Thank you. Yes, Mr Basten. Incidentally, I think, at least by implication, you have been given the leave that was sought in paragraph 7 of the affidavit of Yvonne Williams.

MR BASTEN: I did inquire of my friends whether there was any opposition to that. I should have mentioned it, I am sorry, your Honour.

MR DEAKIN: May I just say this, your Honour, that even the latest document my learned friend has produced still has the same evil as the documents that were produced to the Court of Appeal. There is reference, again, to material that is simply not in evidence. My friends made express reference to the 19 medical reports. There is simply not a skerrick of evidence to support that assertion, either before the trial judge, before the Court of Appeal, or before this Court. The only reference my learned friend has made to it derives from a submission that was made that referred to that subject matter. They are the matters, your Honour.

GLEESON CJ: Yes, Mr Basten.

MR BASTEN: They do not object because they wish to rely upon it.

Your Honours, just two points if I may. Firstly, it is not suggested on our side of the table that the power available under Part 18, rule 3, had not been engaged in this case. The question sought to be raised concerns the principles to be exercised in applying the discretionary power which is thereby engaged.

Secondly, in relation to the matters raised by Mr West, my learned friend made reference to heads of prejudice. I mentioned before that none of these had been demonstrated in evidence. He then said that the particulars changed the case dramatically. The issue of novelty was one which was debated below. At page 80 at the top of the page in paragraph 75 of Justice Heydon's judgment, his Honour said that that was not a matter which had influenced the trial judge and was not a relevant consideration. Therefore, that question was really beside the point. The same may be said as to questions going to the proof of liability. The complaint the defendants made in that regard was that the factory in question had closed in 1990. That was at a stage long before any complaint of delay by the plaintiff was raised and was 18 months before the defendants were able to file their defences.

Your Honours, those are my submissions.

GUMMOW J: Mr Basten, there are two applications for leave here.

MR BASTEN: There are, your Honour.

GUMMOW J: Why is that?

MR BASTEN: Because there was a request to reconsider the decision made by Judge Garling in February which was determined adversely in March and although the matters were dealt with in the same judgment in the Court of Appeal, two orders were made in the separate proceedings and it was deemed appropriate that two separate applications be made in relation - - -

GLEESON CJ: But it is just a technical - - -

MR BASTEN: It does not make any difference to the application. If the Court pleases.

GLEESON CJ: In this matter the Court of Appeal reviewed with the utmost care and attention to factual and legal detail a discretionary decision of a trial judge on a matter of practice and procedure. The case does not raise an issue suitable for a grant of special leave to appeal and, in any event, there are insufficient prospects of success to warrant such a grant.

We do not intend, by anything that has been said, to cast any doubt on the correctness or applicability of the decision of the Court of Appeal in the case of Stollznow v Calvert (1980) 2 NSWLR 749. The application is refused with costs.

MR DEAKIN: .....

GLEESON CJ: Orders, yes. In both - - -

MR BASTEN: I thought the usual rule was that one set of costs was awarded to be divided, as appropriate, between - - -

GLEESON CJ: No, just let me go back again. I began by saying, "In this matter". I meant, "In these matters".

MR DEAKIN: Thank you, your Honour.

AT 11.58 AM THE MATTERS WERE CONCLUDED