Gerlach v Clifton Bricks Pty Ltd

• Jurisdiction: Australia Federal only
• Judge: Gaudron,McHugh,Hayne JJ,Kirby,Callinan JJ
• Judgment Date: 30 May 2002
• Neutral Citation: [2002] HCA 22,2002-0530 HCA A
• Docket Number: S43/2001
• Date: 30 May 2002
• Court: High Court

[2002] HCA 22

HIGH COURT OF AUSTRALIA

Gaudron, McHugh, Kirby, Hayne and Callinan JJ

S43/2001

Armin Herbert Gerlach

Appellant

and

Clifton Bricks Pty Limited

Respondent

District Court Act 1973 (NSW), s 79A.

Supreme Court Rules 1970 (NSW), Pt 51AA r 16.

Gerlach v Clifton Bricks Pty Ltd

Appeals — Interlocutory orders — Interlocutory order dispensing with a jury in the trial of a civil matter — Leave to appeal against interlocutory order not sought — Action tried by judge alone — Later appeal against both final judgment and order to dispense with a jury — Whether order to dispense with a jury gave rise to a substantial wrong or miscarriage warranting an order for a new trial.

Practice and procedure — Interlocutory order — Entitlement of disaffected party to save up challenge as ground of appeal against final judgment.

Courts — Statutory conferral of discretionary powers — Need to exercise powers in accordance with the statutory grant — Need to afford liberal construction to powers conferred on courts.

Words and phrases — ‘substantial wrong or miscarriage’.

1 Gaudron, McHugh and Hayne JJ. In 1989, the appellant sued the respondent, in the Supreme Court of New South Wales, for damages for personal injuries which he alleged that he had suffered in the course of his employment by the respondent. The proceedings were remitted for hearing in the District Court. Soon after the proceedings were instituted, the respondent took the necessary steps to require trial by a judge and jury.

Gaudron

2 The proceedings were fixed for trial in May 1998. A few days before the hearing, the appellant applied for, and obtained in the District Court (Judge Christie), an order, pursuant to s 79A of theDistrict Court Act 1973 (NSW)1, dispensing with the jury. The respondent did not seek leave to appeal against this order. The trial proceeded before another judge (Acting Judge Morrison), and the appellant obtained judgment for $390,000.

3 The respondent appealed to the Court of Appeal. By its amended notice of appeal it appealed ‘from the decision of Judge Christie on 15 May 1998 dispensing with the Jury and of Acting Judge Morrison in the substantive matter on 21 May 1998’. The Court of Appeal (Priestley, Handley and Giles JJA) unanimously held that the order dispensing with the jury should not have been made. The Court set aside that order. Because, in its opinion, the order dispensing with the jury should not have been made, the Court of Appeal concluded that the action had ‘therefore not been tried according to law’ and it set aside the judgment in the action and ordered that there be a new trial. The issue in this matter is whether the Court of Appeal was right to make the orders which it did.

Interlocutory orders and appeal against final judgment

4 In the course of a trial, and even before the trial commences, interlocutory orders may be made which affect the substantive rights of the parties. Rulings that are made in the course of trial about what evidence will be admitted are an obvious example. To adopt a rule that precluded challenging any interlocutory order except by an appeal against that order would provoke unnecessary multiplication and fragmentation of proceedings.

5 It is not surprising, then, that in at least some circumstances, a party may challenge the correctness of the final judgment entered in a matter on the ground

that some interlocutory decision was wrong. Again, evidentiary rulings provide the obvious example2. As was said, in a very early judgment of this Court3:

‘There is only one judgment of the Court appealed from … and on the appeal all grounds that were taken by the appellant in the course of the proceedings are open to him.’

As Griffith CJ had said earlier, in the course of argument inNolan v Clifford4:

‘On an appeal from a final judgment, all points raised in the course of the case are open to the unsuccessful party. If a point is decided against him on an interlocutory application, there is no need for him to keep on raising it.’

In bothNolan v Clifford and Crowley v Glissan reference was made to Maharajah Moheshur Sing v Bengal Government5 as authority for the proposition stated.

6 The proposition that any interlocutory order can be challenged in an appeal against the final judgment in the matter is often stated in unqualified terms6. The better view, however, is reflected in the formulation adopted in Spencer Bower, Turner and Handley7 where it is said that ‘on an appeal from the final order an appellate court can correct any interlocutory order which affected the final result’ (emphasis added).

7 It is necessary to make the qualification, ‘which affected the final result’, at least to reflect the well-established principle that a new trial is not ordered where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice. That principle, well established in the common law8, is applied to appeals to the Court of Appeal of New South Wales by Pt 51AA r 16(1) of the Supreme Court Rules 1970 (NSW). That rule provides:

‘The Court of Appeal shall not order a new trial –

• (a) on the ground of misdirection, non-direction or other error of law;

• (b) on the ground of the improper admission or rejection of evidence;

• (c) where there has been a trial before a jury, on the ground that the verdict of the jury was not taken upon a question which the trial judge was not asked to leave to the jury; or

• (d) on any other ground,

unless it appears to the Court of Appeal that some substantial wrong or miscarriage has been thereby occasioned.’

8 Further, it may be that there are some kinds of interlocutory decisions made, other than in the course of the hearing which leads to entry of final judgment in the proceeding, which may present some other issues for consideration. There are circumstances in which an interlocutory decision must be treated as concluding an issue between the parties9. Whether all decisions of that kind may be challenged in an appeal against the final judgment in the proceeding is a question to which a general answer need not be attempted. It is enough to notice in this regard the decision of the Court of Appeal in New South Wales, in David Syme & Co Ltd v Lloyd10. It was held there that a ruling made in the separate trial of an issue (that the article published was capable of bearing the imputations pleaded in a claim for defamation) was open to challenge on appeal against a subsequent jury verdict. This conclusion is consistent with the qualified

formulation of the relevant principle. It is, as we say, unnecessary to explore the limits of the principle.

The present case

9 As has been noted earlier, the respondent's appeal to the Court of Appeal sought to challenge both the order dispensing with a jury and the judgment entered at trial. The correctness of the order dispensing with a jury would be of significance to the parties if, and only if, the judgment was to be set aside and a new trial had. If the judgment was not set aside, any dispute about the order dispensing with a jury would be hypothetical.

10 In the Court of Appeal it had been contended that Judge Christie's exercise of the discretion to make an order dispensing with a jury had miscarried. (In the course of oral argument, in this Court, reference was made to a number of statements that Judge Christie had made in the course of the argument before him. Some of those statements, it might be thought, indicated an inappropriately firm predisposition against trial of civil actions by a jury. It was, however, not submitted in the Court of Appeal, or in this Court, that there was any want of procedural fairness in the hearing of the application to dispense with a jury and it is, therefore, not necessary to say more about them.) The first question for the Court of Appeal was not, as appears to have been supposed, whether Judge Christie's discretion had miscarried. It was whether, assuming the exercise of discretion to dispense with a jury had miscarried, that circumstance, standing alone, could warrant the conclusion that some substantial wrong or miscarriage had been thereby occasioned. If it had not, there was no power to order a new trial. Without an order for a new trial, a debate about the correctness of the order dispensing with a jury was wholly academic. The answer given by the Court of Appeal to this question lay in its conclusion that the action had not been tried according to law. But that is principally a statement of the conclusion it reached about the correctness of the order dispensing with a jury. As the terms of Pt 51AA r 16(1) make plain, it is not enough to point to some error of law to warrant ordering a new trial. More must be demonstrated — that some substantial wrong or miscarriage has been thereby occasioned.

11 The proposition that trial by judge alone, as opposed to trial by judge and jury, can amount, without more, to a substantial wrong to a party or to a miscarriage of justice is a startling proposition. It is true that, assuming the order dispensing with a jury should not have been made, a party to litigation has been wrongly deprived of the mode of trial which itdesired. But that party has had a trial which, for present purposes, must be assumed to have been a trial according to law. No error in the conduct of that trial (as distinct from the mode of trial) has yet been established. And in any event the trial was by one of the modes of trial prescribed for disposition of litigation of this kind.

12 No doubt the dispute between the parties about whether the trial should be with or without a jury reveals that each had a different view of which mode of trial was preferable and of advantage to it. But the fact that, rightly or wrongly, parties have reached different views about that question does not demonstrate that a substantial wrong or...