Clayton Utz (a Firm) v Dale [2015] HCATrans 338 (11 December 2015)

Last Updated: 17 December 2015

[2015] HCATrans 338

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M185 of 2015

B e t w e e n -

CLAYTON UTZ (A FIRM)

Applicant

and

CHRISTOPHER ANTONY DALE

Respondent

Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 DECEMBER 2015, AT 12.35 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR E.A. GISONDA, for the applicant. (instructed by Minter Ellison Lawyers)

MR S.K. WILSON, QC: If the Court pleases, I appear with my learned friend, MR P.L. EHRLICH, on behalf of the respondent. (instructed by O’Donnell Salzano Lawyers)

NETTLE J: Yes, Mr Walker.

MR WALKER: Your Honours, this presents as the decidedly unattractive prospect of special leave being granted for an interlocutory decision as to procedure in a particular case in peculiar circumstances. Now, we acknowledge those unattractive features. There are, we say, some rather larger issues which justify not only, as between these parties in the administration of justice particular to their dispute, but also matters of principle which it would be appropriate, albeit rarely, for this Court to grant special leave to examine the following matters of principle, notwithstanding there has not yet been a trial and notwithstanding in the matters concerned, the way in which the trial should be conducted.

Could I start by asking your Honours to examine at page 199 of the application book the terms and then the implications of the order that has been made? If your Honours will forgive me, I will call it the order for splitting in the case, the Protean Holdings order and you see, and this indeed is energetically urged in writing against us by our learned friends, the terms of 2(a)(ii) and 2(b) and what might be called the proviso to each of those which contemplates the running of this case in a particular fashion.

Now, the issue may be understood compendiously as being the issue raised by the probanda respectively of plaintiff and defendant concerning what I am going to call his conduct, from our point of view, his misconduct. Now, that is the issue being referred to:

unless the plaintiff has led evidence on the issue, there be no cross-examination of the plaintiff or any of his witnesses in relation to the issues pleaded –

et cetera, and then:

unless the plaintiff has led evidence on the issue, the plaintiff may have a case in rebuttal –

splitting the case –

on the issues pleaded –

Now, one starts of course with the obvious proposition that there will not be any cross-examination in any event on matters which are irrelevant. So one starts with the premise that these are orders directed to preventing cross-examination by the asking of questions to elicit relevant evidence. One then goes back to the way in which Justice Tate put the matter, however, in relation to the issues between the parties, including, to use the metaphor her Honour uses, the intertwining in relation to misconduct between, on the one hand the plaintiff’s case for damages and, on the other hand, our case to vindicate the course taken.

At application book 143, paragraph 88, there is an application which, with respect, is plainly correct and is not the subject of any attempted challenge, about the issue of causation upon which without any doubt the onus lies and remains upon the plaintiff. Your Honours will recall the gist of the complaint relevantly is that there were contractual rights appertaining to the manner in which the relevant decision-making board, which is preliminary to the possibilities of the whole partnership considering the matter, was obliged to afford what I will call conveniently, procedural fairness.

It particularly arose in the context of what is said to be, by the plaintiff, the egregiously short time of seven days to respond to matters of concern, acknowledged indeed by him to be such as to raise legitimate concern, arising from his own files - I stress, not the doings of others, but his own doings as recorded or, as we would put it, misrecorded in his own files.

We had assumed that there was a breach by it being seven days, bearing in mind that he had asked for 30. There is a possible dispute about whether that 30 was understood as being sufficient for an answer or whether it was merely sufficient to find out how much time you needed to give an answer. That does not answer for present purposes. We had assumed that there was a breach.

As her Honour points out in paragraph 88, upon that breach being made out and in order to entitle the plaintiff to any relief by way of damages, there needs to be demonstrated that he would be worse off by reason of that breach such as to excite the compensatory measure of damages that is not merely the nominal grant of damages. Now, in order - - -

NETTLE J: Is that right? I mean, you put it forward that he had repudiated the contract. He puts it forward.

MR WALKER: No, I am sorry, your Honour, we are not alleging a repudiation.

NETTLE J: He is, that you by failing to grant him procedural fairness, repudiated the contract, which repudiation he accepted, thus bringing it to an end.

MR WALKER: Quite.

NETTLE J: The measure of damages, prima facie, would be that amount which had put him in the position had the contract been performed.

MR WALKER: Which includes, of course, the working out of the contract in accordance with its terms, favourable to the defendant, that is, had the contract remained on foot the disciplinary process already in train before on any view of the acceptance of a repudiation would, in accordance with the contract, had it been performed properly, have resulted, we say, we do not bear an onus but we say would have resulted in the termination at a time not appreciably later than when it in fact occurred, of his partnership.

He has to say he is worse off. Now, it is coffee spoons really that talks about the difference between seven days and 30 days and that is not something that we put to the forefront of an application for special leave. We do say that in paragraph 88, in order to show that he is worse off, he will have to show that had he been afforded procedural fairness he would not have found himself without his partnership income because there would not have been a decision made to request him to leave.

Now, you can reach exactly the same position by using the expression “loss of bargain”. What was the worth of the bargain he had? It was a bargain to be a partner on terms which included exposure to the possibility of being asked to leave the partnership and thus lose the benefit of the income in certain circumstances. Those circumstances had been raised putatively against him. They were in course.

Now, as a footnote, I should say, we do not accept that there was an acceptance of a repudiation before the time when there was a termination of his partnership. That is a matter of dispute between the parties. We do understand, with respect, and in particular in light of the way Justice Nettle has asked me to consider it, we do understand that is likely to be a contention of the other side.

The timing of the acceptance of the repudiation may be of some significance. In particular, your Honours know there is a contractual election to go to the full partnership after the board’s decision and it was not exercised. Whether or not that is said to be tantamount to the common law election to accept a repudiation is certainly a matter of live dispute between the parties. In any event, if that be the time, of course, then the termination under the deed would already have taken place because in the absence of an election to go to the firm it takes place on the day stipulated by the board.

In any event, because of paragraph 88, the issues on which the plaintiff bore an onus will include what would have happened had he taken advantage of the longer time to answer the matters of concern raised about his conduct, put his best foot forward, or taken advantage of the reasonable opportunity which the common law would require, in terms of termination or not, and we say by rudimentary principle, that will be decided on the balance of probabilities.

Now, one might think from the way in which the facts have been expounded, all of which of course are provisional because at first sight, adversely for us as a special leave applicant, this is in advance of a trial, but when one looks at the way those facts or allegations are expounded, it is striking to what extent this is a universe of factual discourse in which Mr Dale is dominant. He knows about his own files. It is his conduct which is either correctly or not correctly described in the various documents, most notoriously the Fagan memorandum.

GORDON J: How does that sit with paragraph 99 of what the Court of Appeal says, which seems to be a, if not the foundation and reason why the court was prepared to make the order?

MR WALKER: That was the next paragraph I am coming to and, in our submission, it has to be said about my application today, perhaps also against it, although I am going to try and persuade you otherwise, that I have to tackle that. Is this a negative of overwhelming proportions and is this a task of confronting evidence of which he has little or no knowledge. Now, let me put this in context - - -

GORDON J: Maybe put another way, maybe, although it is not said that they were treating Mr Dale as the defendant rather than the plaintiff, not in reality but in substance.

MR WALKER: I may be a bit lost, your Honour. There are two junctures: there is the juncture out of court, before litigation when the partners are dealing with each other and, on any view of it, he was a person, if you like, accused. I accept that. That is the nature of the nature of the provisions of the deed. When the litigation starts, which is what her Honour is talking about in paragraph 99, because this is the Protean Holdings split point, when the litigation starts, he is of course a plaintiff and, in our submission, there is a real problem, given paragraph 88 and what he will have to prove to get any damages above nominal, there is a real problem in appreciating this notion of a negative of overwhelming proportions or evidence of which he has little or no knowledge.

He was asked to answer, not for the actions of others about which he may know nothing, not even in large measure about the accusations of others; true, the former clients are there, but rather about the content of files, the content of files which were his, not files over which he has, as it were, only nominal supervisory responsibility and so this notion of a negative is, in our submission, really not of any substance.

The plaintiff is not negativing anything relevantly when the plaintiff says, “Had I been given a chance, I could have said the following things in answer to the Fagan memorandum and more likely than not, I would have avoided the termination which has deprived me of my partnership income”.

Next, whether it is of overwhelming proportions is, in our submission, extremely doubtful. These were matters which were contained in documents - they may be copious documents but they are his documents and we know, of course, that just as out of court he would have had 730 or whatever else days without any other work to distract him, to attend to that matter, out of court and before litigation, in litigation there will be all the tools of ordinary procedural fairness in court, such as particulars and discovery by the defendant in order to enable him to consider the question, “What would I have said which would have altered the outcome from which I have suffered financially?”

Then one comes to confronting evidence of which he has little or no knowledge. With respect, there is no foundation for that to be a description which is a fair characterisation of the body of material that he was being called upon to answer.

GORDON J: Is that right in relation to the last sentence of 99?

MR WALKER: No, not at all. Again, that is material that comes from his own conduct. It is for those reasons, in our submission, that, yes, 99 is something that we would have to attack. It is, in our submission, an error, particularly in the impression it creates of the plaintiff, as it were, being met by something about which the plaintiff, as it were, knows no more than is eked out to him by the other side in the litigation.

It is to be remembered this is a dispute between partners and a former partner and on behalf of the partnership, the partner, the former partner was conducting affairs recorded in files and other records and the whole of the case against him depends upon explanations for what his material reveals. That is not, with respect, negative, overwhelming or little or no knowledge - to the very contrary, being called upon to give an account to those to whom he owes contractual and fiduciary obligations.

GORDON J: May I raise one further matter, just so that I can complete that aspect of it? Does that also sit with paragraph 100 which seems to follow 99 and I thought created another possible hurdle for you, and that is, is that it seems as though it is addressed on a question of fairness?

MR WALKER: Yes, yes, it is a hurdle, of course. That is what I tried to acknowledge in my opening sentence. Of course, this is a hurdle and I can test that. I do not want argue to much against myself but you can test that. If this were an application or an argument at an intermediate level, or to this Court by special leave after an intermediate appeal, against orders that had permitted calling a case in reply or perhaps even a case in rejoinder, it would not be enough to remark unorthodoxy because the answer to that would be tailor made.

It would not be enough to say, reversal of ordinary order because the answer would be, but where is the beef? How did it actually affect fairness? Accept all of that. That is why, of course, it is an obstacle. That is why in Re the Will of Gilbert (deceased) is usually a trump card on an intermediate appeal, let alone a special leave application.

Now, enough of stinking fish. Why should there be special leave on the point? It is because, in our submission, those orders I took you to at the outset, they are orders which threaten, in our submission, what I will call a permanently incomplete factual record in relation to the determination of issues before the court.

The notion of an immunity from being cross-examined on an issue on which you bear the onus, the plaintiff has to prove causation of loss because the defendant has yet to adduce its evidence which is intertwined as an issue to the effect that its conduct was justified is, in our submission, very difficult to find by way of precedent.

Now, of course, precedents in terms of case management are not a very useful concept but the fact that this is so odd is, in our submission, enough to excite concern that here there has been a misstep taken by failing to recognise the integral nature in the plaintiff’s issues, that is the issues on which the plaintiff bears an onus, of matters upon which of course the defendant should be able to test the plaintiff when the plaintiff first gets in the box, bear in mind that the plaintiff cannot be required to call witnesses or even to give evidence himself in a case in so-called reply.

Now, this then leads, of course, to the question, another way in which silence, both pre-trial and during a trial, is sought to be relied upon as

some kind of refuge by the plaintiff. In due course, and this is against me on special leave, in due course naturally we will make whatever we can of an absence of evidence by whatever course the evidence remains absent, by a claim of privilege or by a failure to give the evidence.

However, for special leave, in our submission, there is raised at this stage, both for the pre-trial preparation which can never be fixed - it is either done properly or not - as well as the record of testimony, including cross-examination, there is raised this spectre of privilege being used to prevent the facts being known about a matter on which the plaintiff bears the onus and wishes to tell only that which favours him.

In a criminal trial, where we really have an accused, the party dragged to court, not the party dragging others to court, in a criminal trial, once one steps into the box to give the version to counter the prosecution, the notion of pleading privilege is laughable. We say that by an analogy which recognises the fundamental differences between a criminal trial and every civil trial, as well as the fundamental feature, that this is the plaintiff, not a defendant, the notion of privilege permitting this totally artificial filleting, the plaintiff can say what he likes, cannot be cross-examined in his case in-chief so long as he steers clear of anything about his own conduct - - -

NETTLE J: I see you are out of time, Mr Walker.

MR WALKER: May it please the Court.

NETTLE J: Mr Wilson.

MR WILSON: If the Court pleases. In our respectful submission, there has been a misunderstanding of the context in which paragraph 88 of the judgment in the Court of Appeal is put, notwithstanding that we do not cavil with the resultant orders in the case. If I could take the Court please to page 5 of the application book, the Court will then see in paragraph 8 of the judgment of the judge at first instance, a summary of the plaintiff’s claim and the summary of the pleadings in relation to the claim.

Can I indicate this has been done on two occasions and that is that the plaintiff’s claim is quite simple. It is this - that he was subject to a partnership agreement. That partnership agreement had express terms under which the partnership could expel another partner. The terms of the partnership agreement included an express term as to fairness and if not express, the import of the obligation to apply natural justice when dealing with the terms which related to the expulsion of a partner.

The plaintiff’s claim is that he was expelled by a board of partners who were acting with malice, for the wrong purposes and without giving him a reasonable opportunity of being heard. Not much is said in the Court of Appeal judgment about those aspects of the pleading but they are there and I indicate those to your Honours. That is why I took your Honours to it. In the defence, which appears summarised at page 14 of the application book, the matter which gives rise to this issue of “the split” as it is called, is in paragraph 145 of the defence which is:

Further and alternatively, if (which is denied) the matters alleged in the plaintiff’s Statement of Claim are established, by reason of:

(a) the circumstance that the allowing of any further time to the plaintiff would not have resulted in the Board not making a decision to require the plaintiff to leave the Partnership;

. . .

the plaintiff:

(i) has not suffered any loss and damage as a result of the Board’s Decision –

because they would have, in effect, they say, expelled him anyway. Now, the position here is very interesting. That paragraph does not deal with the allegation that they will have to, as they assert it, establish - presuming that we can establish without reference to the factual merits of the allegations made in their defence paragraphs about the plaintiff’s conduct, as my learned friend calls it, they will still have to establish that they could have put together a non-biased board, acting for proper purposes who then would have given the plaintiff a reasonable time to respond.

Can I just interpolate in relation to that? There is a reference in our learned friend’s application to the Fagan memorandum. The Fagan memorandum - and he raised with your Honours the question of a 30 days, the context of that is, and it appears in the judgment, Mr Dale was at the time this was all happening under psychiatric treatment in a hospital and letters were written saying we cannot get instructions from this man at the moment. Will you give us 30 days, and the board very generously then turned around and said, well, we will give you another five business days.

That is in the context of the fact that at that point the Fagan memorandum consisted of - if I can just find it here - including the annexures, 250 pages of various factual allegations and conclusions. It referred to a matter called Schmidt which consisted of 11,000 pages of correspondence, let alone any other documents, and the Ebner file, which seems to be the other major matter, consisted of 196 file boxes. That puts the matter in context.

Now, in relation to those matters, those matters are also then brought up in the, as I took your Honours to paragraph 145 on page 14, those matters are then raised in the various paragraphs and included in those paragraphs are then a series of allegations which were not before the board in any way, shape or form at the time they purported to expel Dale but are additional further matters which were only raised after the event and in the course of this proceeding and extend to dozens of paragraphs of further allegations.

Now, it is our case, and we say that the paragraph 88 of the Court of Appeal judgment has to be understood in this context. Her Honour Justice Tate asked me whether, in the course of the matter, I accepted that the plaintiff bore the overall onus of proof on causation and, with respect, I believe I properly answered yes, but the problem was this, that what that means is that if the defendant can go in to raise the matters which it raises and establish them to such level as would require the plaintiff to provide some response, then presumably within that context, the plaintiff would have to respond in a way which would answer what Justice Tate says.

But if it is taken in isolation, that statement put positively for Dale to prove the expulsion has caused him loss and damage, requires Dale to establish that if he had been given an adequate opportunity to be heard, the expulsion decision would not have been made, is simply misleading, in our respectful submission, because the position is that Dale’s case, as it were, is going to be complete when having proven, assuming he proves, that a biased board acting for an improper motive has expelled him without giving him a reasonable opportunity of being heard, then at that point the contract was repudiated. That is an end of it.

Dale accepts that repudiation, does not need to think about going off to appeal the decision which is a wrong decision to the board as a whole. He just says, well that is it, and Justice Nettle is quite right, at that point his damages are clearly the damages that he has lost by virtue of the loss of the benefit of the partnership agreement, less anything he might have earned over the subsequent years.

However, the defendant then says, we want to say that if we can establish these things - interestingly enough, as I said, they do not try and establish that the board was not biased. They do not try and establish that the board was not acting for an improper motive, assuming Dale can make out those rounds of his claim, so that wonders where it goes. So, it isolates these matters and we say that he who asserts that form of conduct ought to be put in a position. He who asserts should prove. He who asserts wrongful and, in this case, criminal conduct, ought to be able to prove it and he who asserts new matters that went beyond the scope of the material that was even generally before the board, ought to be able to prove it and that is the whole point.

Why should Dale be worse off if he establishes that the board wrongly expelled him for the reasons I have articulated, than he would have been if the board had acted properly and therefore, in the process, had to prove the matters to the requisite standard, in a partnership, one would think acting with utmost good faith, possibly even to a Briginshaw standard, that they would have had to have proven those matters to the satisfaction of the board because they are the ones that raised the allegations and Dale would presumably then have an opportunity to respond.

What they say is, no, we can in effect, put you in a position where you are forced to sue us and then make you have to respond in a vacuum to these extensive allegations without hearing any evidence as to how we put them, having acted wrongly, because this all proceeds on the assumption that Dale has made out his case at first instance for a breach of the contract, because the matter is raised as a question of causation in relation to damages, not in relation to liability. So, in those circumstances, we say, it is entirely appropriate that the case be split and if one looks at the proposed notice of appeal at page - - -

GORDON J: Page 203.

MR WILSON: Page 203, yes, thank you, your Honour. At page 203, the first ground of appeal is:

The Court of Appeal erred in failing to find, and ought to have found, that the Respondent should not be permitted to “split’ his case by embarking upon evidence in relation to a principal issue but also allowing him to call further evidence after the Appellant in relation to that issue.

But the Court of Appeal orders that my learned friend took the Court to at the outset, make it quite clear that he will not be allowed to embark - or if he does he will be at risk of cross-examination on them - he will not be allowed to embark upon issues of damages because the difference between the trial judge’s decision and the Court of Appeal’s decision in practical terms was that under the trial judge’s decision Dale could have led all the evidence that he wished about the breach and the circumstances of the denial of natural justice, the bias and so forth, without any way trespassing on the merits of the material raised in the defence, and then led his evidence on the question of damages by simply saying, well, this is my loss, and we would say, well, it is still perfectly fair and clear that you should then go on the other matters.

That is what would have happened under the trial judge’s decision. The Court of Appeal has said, no, no, because there is this intertwining, so-called, of the issue on the causation of damage, because you accept that you have got the onus of proof overall, that therefore you should not be allowed to lead any issue and we will exclude your paragraph on damages. Well, all that means is that we are not going to lead the evidence of his actual loss until after they have presented their evidence.

Finally, we would say in relation to this split point, I mean, my learned friend conceded quite properly, this is an interlocutory discretionary decision of a trial judge as to the order of evidence and we rely heavily on the decision in Barnes v Sharpe which I am sure is referred to in our outline and your Honours are aware of, but it was said by Justice O’Connor in that case, in relation to the one objection applicable, this is at page 481 of the decision which is at [1910] HCA 26; (1910) 11 CLR 462:

In my opinion, neither of the objections to evidence is tenable. The one objection applicable to both pieces of evidence, namely, that it could not be given in reply, involved a question of procedure at the trial which was entirely within the discretion of presiding Judge. With his exercise of discretion in that respect a court of appeal will not interfere.

In the same case at page 488, Justice Higgins said:

In each case the evidence was tendered by the plaintiffs after the defendants had closed their case; and I concur with Shand, J, that the evidence was not admissible as rebuttal evidence. The plaintiffs “split their case” - a course not usually allowed. But a Judge who presides at a trial has a very wide discretion as to the order of evidence, and can take any relevant evidence at any stage. There are very few instances, if there are any, of a new trial being granted on a ground of a Judge allowing evidence to be taken at a wrong time -

Well, that is at final stage of appeal, not a - - -

GORDON J: I assume that you do not cavil with what Justice Ferguson said at paragraph 230?

MR WILSON: No. With respect, my recollection is her Honour basically supported the primary judge’s findings and would not have made the variant that was made by Justices Tate and Ashley - - -

GORDON J: No, I think paragraph 230 is actually a more important point as well, and that is that these orders are subject to change.

MR WILSON: Yes, the trial judge - - -

GORDON J: You do not cavil with anything in paragraph 230?

MR WILSON: Yes, the trial judge has the ability to review this case as it evolves and the perception is that the trial judge has a sense of the extent of the allegations. He has seen the Fagan memorandum. He has a sense of what it involves. He understands the terminology of it. If I can just put this - much of the Fagan memorandum is couched in terms of conclusion and assertion, not hard evidence.

The annexures are from barristers associated with the firm of Clayton Utz who never even interviewed Mr Dale. There are issues such as that which we can rely on as going to issues of bias but we do not have to enter into the lists of the factual issues that relate to it and in terms of what might happen later, can I interpolate, for instance, on one of the issues, I think it is the Ebner matter - I will be corrected by my junior if I am wrong - there is a plea in the reply. It has already been the subject of an accord and satisfaction and that there is an estoppel that runs against the firm.

Now, if that is established, you do not get into the merits of the allegations at all but that would be a matter we would presumably deal with during the question of a reply. So, in those circumstances, we say, it is entirely appropriate that the order for the split be made in the way in which it has been. There are several propositions put in our learned friend’s submissions which I briefly wish to address the Court on, if I may, and they are these, that the evidence in relation to the issue of causation is on the one hand, that which I have outlined to the Court.

The defendant’s evidence of course is the interruption, almost a novus actus to the question of normal causation in that context because they say that if we could find a board that was not biased and would have acted on proper motives and gave the plaintiff reasonable time, there still would have been enough evidence, whatever that may be, we are waiting to see, in relation to the matter to expel the plaintiff anyway and how long that would have taken, one can only speculate.

But the two matters are entirely severable as evidence and therefore, they are not intertwined in the sense that would offend the Protean principle because on the one hand, you have the plaintiff’s case as I have articulated and you have the defendant’s case as an entirely separate case and the plaintiff does not per se have to go into the merits of the defendant’s case because he can still bear the overall onus of proof on causation but that must be adjudged at the time the whole of the evidence is concluded at the direction of the trial judge.

The Protean point is an order of evidence point and a severability in relation to fairness and justice in relation to the order of evidence. As we have said, we rely on Barnes v Sharpe and this is even stronger because Barnes v Sharpe was an appeal at the end of a trial. This is an interlocutory discretionary procedural decision of a trial judge.

The difference between the judgment at first instance on appeal, I have already addressed your Honours on that. The applicant asserts the Protean split is only apt in cases where a defendant confesses and avoids. We would reject that. We say that a Protean split is appropriate in cases where the defendant raises substantial matters as part of its case in rebuttal and where it would be unjust or require the plaintiff to respond in advance to a negative and in an evidentiary vacuum when the nature of the case is such that the plaintiff’s case, or more particularly the evidence in relation to the plaintiff’s case, can be dealt with severally and in such a way as to require the defendant to put its positive case in rebuttal first.

The applicant alleges that the respondent’s case asserts that the matters relied upon to exclude him from the partnership were not proved. Well, as I have explained, that is really not part of the plaintiff’s case. His case is that he ought not to have been excluded from the partnership because of the way in which the procedural aspects of the contractual obligations were undertaken and then we say that the applicant asserts that the respondent’s pleaded case requires him to establish that the decision would not have been made had he been given an adequate opportunity to..... We say, well that is wrong.

We repeat what we have already said and explain that we think Justice Tate’s statement must be looked at in the context of the whole of the evidence in whatever order it is given. The High Court does not have a copy of the statement of claim but I have taken your Honours to the summary of it and then it is not part of the plaintiff’s case to prove that but for the breach of procedural fairness, he would not have been expelled.

His case initially is that his expulsion was in breach of the contract and what follows from that very much in line with the sort of decision of this Court in Reg Glass v Rivers Locking Systems where the defendant argued that even if the frame had been steel sheeted, the break in would still have occurred. The High Court held that the plaintiff should succeed:

once breach of warranty is established, and it appears that the actual entry made was due to the breach of warranty –

we think that prima facie the loss suffered resulted from the breach. So that the plaintiff can certainly have a causative argument that begins and ends subject to the defendant’s case with those matters. In relation to the privilege against self-incrimination, the point we would make there is that the real complaint here seems to be that the other side are saying, well, it is unfair that the - and it is in our learned friend’s submission in reply. They say in paragraph 2 of that, which is the one part of the submission I think which my learned friend actually settled:

The decision of the Court of Appeal creates injustice for defendants. For example, on the Court of Appeal’s decision, the respondent is entitled to commence a proceeding against the applicant seeking damages arising from his expulsion from the partnership and yet keep secret any documents in his possession that revealed he did engage in the conduct upon which the expulsion decision was made or any other conduct which would be in breach of the partnership agreement. In other cases, criminally culpable plaintiffs would be in a better forensic positions than plaintiffs -

and so on. Well, we say, this ignores this assertion – line of argument ignores the fact that it is the defendant that says it already had sufficient material to properly and justly exclude the plaintiff from the partnership. It says that it had that and, therefore, as I argued at the outset, it puts the plaintiff in a worse off position. It is the injustice lies against the plaintiff.

The defendant can come along and breach every principle of natural justice, excluding with malice and so forth and then say, well, now that you have been forced to bring an action against us for wrongful dismissal you can now discover all the material, you can go into the witness box and be cross-examined first in a vacuum, you can now be made to discover all of the relevant material that may go to our allegations which we have yet to prove and yet, we say we were in a position to prove it at the time you were expelled.

So that the unfairness, in our respectful submission, clearly lies in that - but that proposition ignores the fact that those who allege wrongdoing have to prove it. We refer to our submission in that regard. It ignores the fact that the privilege is clearly maintained across the board in relation to plaintiffs. We do not dispute that in certain circumstances it can be waived but there is no serious argument that it is really been waived in this case and to order otherwise would be to effectively abolish the privilege in this case and they would be better off, on that assumption, having acted unlawfully in expelling the process and forcing the invocation of the proceeding against the plaintiff. If the Court pleases.

NETTLE J: Thank you, Mr Wilson. Mr Walker.

MR WALKER: Your Honours, the identification of onus correctly undertaken in paragraph 88 of the Court of Appeal certainly does not involve what my learned friend embroidered it with, namely, something in the nature of an evidentiary burden whereby the first move has to come from the defendant. That is the first thing.

The content of procedural fairness is an essentially practical and circumstantial thing. Lam in this Court demonstrates that one needs to know what is the allegation and what was the occasion and what might be the response and so, naturally enough, the plaintiff already knows what it was that he says he got inadequate time to answer.

The second point is this. My learned friend several times referred as if it was some kind of logical block in the case to the impossibility supposedly of finding an unbiased board, but that is to disregard the operation of principle here. The measure of damages between that position in which the plaintiff finds himself by reason of the breach and what would have happened if there had not been a breach, and encompassed of course for all the reasons which are so enthusiastically endorsed in address today, that includes freedom from bad faith, freedom from bias. It is a hypothetical test and finally it is not the case that there is no contest on bias. I think that may have been something my learned friend enthusiastically suggested: issue is well and truly joined by way of denial of any allegation of bias. May it please the Court.

NETTLE J: Thank you.

In this matter the Court is of the view that none of the proposed grounds of appeal raises a question of principle of general application and, in any event, the Court of Appeal’s reasons are not attended by sufficient doubt to warrant the grant of special leave to appeal. Accordingly, the application is refused.

MR WILSON: I apply for costs of and incidental to the application, if the Court pleases.

NETTLE J: The application is refused with costs.

MR WALKER: May it please the Court.

MR WILSON: If the Court pleases.

AT 1.19 PM THE MATTER WAS CONCLUDED