The order of the Court
42 The judgments circulated in draft reveal a majority of the Court (Beazley JA and Basten JA) finding negligence proved, with firm disagreement between their Honours as to the discount for contributory negligence. The majority agree that there needs to be a new trial to assess damages. My minority opinion would not displace the verdict for the defendant, but for reasons other than as stated in the District Court.
43 I have been and remain vexed as to the disposition of the appeal in these circumstances. On what principled basis does the Court dispose of the appeal? Do I have a particular role because I am the presiding judge? Or because I am the dissentient as to the logically anterior issue of liability? Some may view this anxiety as much ado about nothing. I can only say that I have found the matter to be troubling, especially in an appeal of such a routine nature.
44 What follows has the concurrence of the whole Court.
45 Several options may be available, theoretically speaking. Each has difficulties arising from a tension between the majoritarian principle reflected in s45(1) of the Supreme Court Act 1970 which states that the decision of the Court shall be in accordance with the opinion of the majority of the Judges of Appeal present; and the finality principle reflected in s63 of that Act which states a duty to ensure that, as far as possible, all matters in controversy between the parties are completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided.
46 The first option would be to recognise the Court as equally divided in its opinion, either on the basis of a three-way disagreement as to orders or a two-way division (between Beazley JA and Basten JA) as to contributory negligence.
47 In Evans v Minister for Immigration (2003) 135 FCR 306, [2003] FCAFC 276 a Full Court of the Federal Court of Australia was constituted by Gray, Kenny and Downes JJ. Two questions had been ordered to be determined separately at first instance. There was an appeal from the answer to the second and cross-appeal from the answer to the first. In the Full Court the two senior judges agreed that the answer given by the primary judge on the first question was correct and that the cross-appeal should therefore be dismissed. Downes J found it unnecessary to deal with the second question, and therefore with the appeal. His Honour did not wish to express a view on the second question, being of opinion that it was not appropriate for him to take the reasons of the other members of the Court, particularly where their conclusions were not the same, as the basis for determining the second question, and the appeal. The two remaining judges were divided as to what should be the answer to the second question (see at [32], [112]).
48 In Evans the Court agreed that it was equally divided in opinion and that the proper order on the appeal relating to the second question was to dismiss the appeal and affirm the primary judge's answer to that question (see at [33], [70], [112]). Under s16(a) of the Federal Court of Australia Act 1976 (Cth), when judges constituting a Full Court are equally divided in opinion, the judgment below is to be affirmed in the case of an appeal from a judgment of the Court constituted by a single judge.
49 If this reasoning is correct and applicable in the present case, the rule determining how the matter is resolved in the Court of Appeal is different and the consequences are startling.
50 Section 45(2) of the Supreme Court Act 1970 states:
If the Judges of Appeal present are equally divided in opinion the decision of the Court of Appeal shall be in accordance with the opinion of the Chief Justice or other the Judge of Appeal presiding.
51 If at the end of the day this provision is applicable it would lead to the exquisite but troubling outcome that my dissenting opinion revives and swells into the judgment of the Court. In support of this, nothing in the language of s45(2) indicates that the provision only applies if the "Chief Justice or other the Judge of Appeal presiding" is one of the Judges whose opinions divide the Court. On the reasoning of Evans my opinion could be so described, in any event. This said, Evans involved a provision in a Court where the trial judge whose opinion was to be affirmed was a member of the Federal Court and where the presiding judge in the appeal (Gray J) happened to be one of the two judges whose opinions on the separate question divided the Court.
52 Section 23(2) of the Judiciary Act 1903 (Cth) provides for cases of equal division of opinion in appeals to the High Court from the Supreme Court of a State, by stipulating that the opinion of the Chief Justice, or if he or she was absent the opinion of the Senior Justice present, should prevail. In Perpetual Trustee Co Ltd v Tindal (1940) 63 CLR 232, five out of six justices of the High Court were of opinion that the judgment of the Supreme Court with respect to one matter ("the second policy") was wrong. But no majority was in favour of all the terms of any particular order to be substituted for that of the Supreme Court. Latham CJ said (at 250) that it was "at least a matter of doubt whether in such a case sec.23(2) requires that the decision of the Supreme Court should be affirmed". The difficulty was resolved in the case by Starke J withdrawing his judgment, thus leaving a majority of the Court in agreement with the order which the Chief Justice proposed.
53 Further doubts as to whether a court whose members each propose discrepant orders is necessarily "equally divided" were expressed during argument on an application for special leave to appeal to the High Court in Arbest Pty Ltd v State Bank of New South Wales Ltd, 14 February 1997. That involved a decision of this Court constituted by Kirby P, Priestley JA and Powell JA (Arbest Pty Ltd v State Bank of New South Wales Ltd [1996] ATPR 41,963) in which the two senior judges (Kirby P and Priestley JA) agreed to resolve their differences as to the basis on which an inquiry as to damages by a Master would take place. In the upshot, Kirby P did not press his preferred orders.
54 Of course, judicial remarks made arguendo in a special leave hearing in the High Court are not binding. Nor are the reasons for refusing special leave. Nevertheless, the High Court's statement in its reasons for decision that it was not persuaded that Arbest was a case in which there was an equal division of opinion in the Court of Appeal, thereby triggering the application of s45(2) of the Supreme Court Act, tended to endorse the process whereby this Court had proceeded to dispose of the appeal in Arbest. That process accords with the sixth approach discussed below, with one variant which I later explain.
55 The second option theoretically open to this Court might be to order a new trial on the unresolved contributory negligence matter. This has much going for it in a case, such as the present, where the majority view is that there has to be a new trial on damages in any event. A new trial would be ordered where, for example, the appellate court cannot resolve a necessary but unaddressed credibility issue. Arguably, the present difficulty is similar in effect. But this option has its own drawbacks in the present context. I leave aside the theoretical possibility that such a new trial might be followed by an appeal to this Court heard by three judges who like the famous Irish jury referred to (I think) in Maurice Healy, The Old Munster Circuit, were unanimous that they could not agree on a verdict. Rather, the difficulty lies in the fact that ordering a re-trial limited to contributory negligence (and damages) may contravene the finality principles stated in s63 and also the principle of restraint as to ordering a new trial. In the present case, a new trial as to contributory negligence that treats liability as a given may also run foul of the principle stated by Kitto J in Pateman v Higgin (1957) 97 CLR 521 at 527 whereby the new trial ought to be of the case as a whole unless the Court thinks that "they shall do more injustice by setting the matter at large again". It does strike me as unlikely that the level of the plaintiff's contributory negligence could be explored afresh without the need to clarify what really happened and where the defendant's negligence really lay. But perhaps that hearkens back to my minority view as to liability.
56 A third option might involve adding two additional judges to the panel in the hope that a clear majority for some outcome would emerge, perhaps after further consideration on the papers. The parties may well be happy with incurring the limited added costs, although the ultimate loser could feel hard done by if the correct approach is for the Court as presently constituted to arrive at a resolution of the appeal in that party's favour.
57 In the United Kingdom, s54(5) of the Supreme Court Act 1981 (UK) contemplates an appeal being reargued before an uneven number of judges if an appeal has been heard by a court consisting of an even number of judges and the members of the court are evenly divided. The practice in that country is for the evenly divided court to indicate its lack of agreement without publishing reasons so that application to enlarge the panel can be made (see Farley v Skinner (No 2) [2000] PNLR 441). The framers of the legislation obviously did not contemplate that a Court of three judges could be "evenly divided".
58 A fourth option might be to let the judgment below stand because there is no majority decision as to what should be done about it. In R v Ashwell (1885) 16 QBD 190, fourteen judges sitting in the Court for Crown Cases Reserved were evenly divided on a point of law of extreme difficulty. The prisoner's conviction was affirmed through the application of what Lord Coleridge CJ described (at 226) as "the well-known rule of this Court, praesumitur pro negante …". (Cf R v Lubke (1988) 15 NSWLR 318 where the presumption in favour of liberty appears to have tipped the balance with a sharply divided Court of Criminal Appeal. See also R v Wilson (2005) 153 A Crim R 257 at 273.) If the "rule" stated in Ashwell extends to the present three-way split as to preferred orders it would have the effect of resolving the appeal by the orders I favour. This outcome would affirm a judgment in the court below that rests upon reasoning disfavoured by each member of this Court.
59 A fifth option would be for the Court, Basten JA in particular, to apply the convention referred to by McHugh JA in O'Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 60 at 641 whereby the junior judge withdraws the orders which he or she proposes and agrees with those of the senior judge. See also Tasmania v Victoria (1935) 52 CLR 157 at 183, Metropolitan Water Sewerage & Drainage Board v Histon [1982] 2 NSWLR 720 at 730, John Fairfax & Sons Ltd v Carson (1991) 24 NSWLR 259 at 303-4, Government Insurance Office of New South Wales v Rozniak (1992) 27 NSWLR 665 at 700. Basten JA has not indicated his willingness to withdraw his proposed orders. Were he to do so, this would also result in a verdict for the defendant in the teeth of the majority in this Court holding the view that negligence is established with a reduction for contributory negligence that does not exceed 50%.
60 A sixth approach was developed by Kirby P in a number of cases commencing with Woolworths Ltd v Kelly (1991) 22 NSWLR 189. In Woolworths, Kirby P said (at 200):