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[2004] HCA 2
procedural. The High Court amended its orders of 3 September 2003. It allowed Whisprun's appeal, set aside the Court of Appeal's orders of 28 September 2001, and remitted the matter to the Court of Appeal to...
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The High Court had previously allowed Whisprun's appeal, which reinstated the trial verdict against Ms Dixon. Ms Dixon then asked the Court to change its orders because the Court of Appeal had not decided whether it should admit additional evidence. The High Court said her notice of contention was not a way to preserve the Court of Appeal's order if Whisprun succeeded. However, the High Court had not heard full argument on admissibility, and a decision that the evidence could be admitted would require the case to return to the Court of Appeal anyway. It therefore sent the unresolved issue back to that Court and adjusted the costs orders.
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1,890 words · generated 03/10/2026
This is a procedural decision about changing orders made in an earlier High Court appeal, not a fresh determination of whether Ms Dixon had chronic fatigue syndrome or whether the further evidence was admissible. The reasons identify the High Court bench as Gleeson CJ, McHugh and Gummow JJ. The motion was brought by Ms Dixon, the respondent in the earlier High Court appeal, after the Court's majority had allowed Whisprun's appeal without determining a point about additional evidence ([1], [5]-[8]).
At trial, Ms Dixon claimed that she suffered from chronic fatigue syndrome as a result of Q fever. The trial judge accepted that she had contracted Q fever but, in light of his assessment of her credibility, was not satisfied that she suffered from chronic fatigue syndrome because of it ([3]). The New South Wales Court of Appeal set aside the verdict and judgment, reasoning that the trial judge had not satisfactorily considered Ms Dixon's case. In the earlier High Court appeal, the majority disagreed: it considered that the case which the Court of Appeal thought had been overlooked was not the case Ms Dixon had run at trial ([4]).
On 3 September 2003, the High Court allowed Whisprun's appeal, set aside the Court of Appeal's orders, and ordered that Ms Dixon's appeal to that Court be dismissed. The practical effect was to reinstate the verdict in Whisprun's favour ([2]-[3]). Ms Dixon then applied to vary those orders. Her notice of contention had said that the Court of Appeal should have received further evidence identified in its reasons. That evidence was said to support her claim of chronic fatigue syndrome and to show that she continued to suffer from Q fever. The Court of Appeal had not ruled on its admissibility because it had set aside the verdict on another basis ([6]-[8]).
The High Court did not decide whether the evidence should be admitted. It amended the earlier orders to remit that issue to the Court of Appeal, which was also to take any further steps necessary to dispose of the appeal, including dealing with the costs of the trial ([12]-[14]).
The Court distinguished between the purpose of a notice of contention and the relief Ms Dixon ultimately sought. It explained that the function of such a notice is to support the order under appeal by relying on an argument the court below did not accept or apply ([10]). The notice raised the Court of Appeal's failure to receive further evidence, but, as the High Court observed, that point could not entitle Ms Dixon to keep the Court of Appeal's order for a new trial if Whisprun's appeal succeeded. At most, it could give her a basis to have the appeal determined with the additional evidence considered ([9]).
There was a further mismatch between the notice's form and the position taken at the hearing. After Whisprun's counsel had completed the reply argument, Ms Dixon's counsel clarified that, whether or not the notice of contention was the right form, Ms Dixon sought remittal if Whisprun's appeal otherwise succeeded ([11]). The Court recorded that the notice did not on its face seek, and could not have sought, that form of remittal ([10]). It therefore did not treat the notice as an alternative ground for affirming the Court of Appeal's order.
The Court then considered whether it should decide admissibility itself. It identified two practical difficulties. First, it had not heard full argument from the parties on the evidentiary question. Secondly, if it concluded that the evidence was admissible, the case would have to be sent back to the Court of Appeal in any event ([12]). The reasons do not determine the legal test for admitting the evidence, nor do they assess the evidence's content or weight. Instead, they treat the absence of full argument and the likely need for remittal as reasons for leaving the issue to the Court of Appeal.
The Court's conclusion was expressly tied to those circumstances: “the best course is for the matter to be remitted to the Court of Appeal” ([13]). The order both preserved the outcome of Whisprun's High Court appeal and allowed the unresolved procedural question to be considered in the appeal below. It did not reinstate the Court of Appeal's order for a new trial. Rather, it set that order aside and remitted the matter for the Court of Appeal to determine admissibility and take any further steps necessary to dispose of its appeal ([14]).
The judgment's contribution is narrow and procedural. Before this decision, the operative High Court orders of 3 September 2003 had allowed Whisprun's appeal and dismissed Ms Dixon's appeal to the Court of Appeal. The Court's reasons in this motion explain that the further-evidence issue had not been decided below and had not received full argument in the High Court ([2], [8], [12]).
The judgment states a general description of a notice of contention: it supports the order under appeal by an argument not accepted or applied by the court whose order is being appealed ([10]). It applies that description to Ms Dixon's notice and concludes that the notice did not provide for the different relief she sought once Whisprun's appeal succeeded. The Court also points out that the alleged error in not admitting evidence would not itself preserve the new-trial order. At most, it could support determination of the appeal on the basis of both the trial evidence and the further evidence ([9]-[10]).
After the motion, the High Court's operative orders continued to allow Whisprun's appeal and set aside the Court of Appeal's orders, but they no longer dismissed the appeal to the Court of Appeal outright. Instead, the matter went back to that Court to determine whether the further evidence should be admitted and to take steps necessary to dispose of the appeal, including the trial costs issue ([14]). The Court made no ruling on whether the evidence was admissible, and the judgment does not specify what further disposition the Court of Appeal should make after addressing that issue.
The supplied judgment contains no discussion of earlier authorities and no account of later judicial treatment. It therefore supports no broader claim about how this reasoning altered the law beyond the propositions and procedural resolution stated in its own reasons. In particular, it does not set out a comprehensive test for varying final orders, for admitting further evidence, or for remitting appeals.
At [9], the Court explains that even if the Court of Appeal had wrongly refused to admit the evidence, that would not entitle Ms Dixon to retain the order for a new trial. In plain English, success on the evidence point could lead to the appeal being reconsidered with the additional material, but it would not automatically restore the order that had already been set aside by the High Court.
At [10], the Court says that a notice of contention supports an order under appeal through an alternative argument. The passage matters because Ms Dixon's notice was framed as a reason to affirm the Court of Appeal's decision, while the relief she clarified at the hearing was remittal if Whisprun succeeded. The Court treated those as different procedural functions.
At [11], Ms Dixon's counsel is recorded as saying that the relief sought was remittal to the Court of Appeal to deal with the unresolved admission issue if Whisprun's appeal was otherwise successful. This is counsel's submission, not a finding about the evidence or a rule of law. The Court's reasons use it to identify the practical request before them.
At [12], the Court identifies the lack of full argument as the chief difficulty with deciding admissibility itself. It also observes that a decision in Ms Dixon's favour on admissibility would require remittal anyway. In plain English, the High Court considered that the issue was not properly ready for its own decision and that sending it to the Court of Appeal would avoid an unnecessary intermediate determination.
At [13], the Court calls remittal “the best course” in the circumstances. That passage explains the resolution, but it should be read with the reasons immediately before it: the Court's choice followed from the incomplete argument and the likely need for the Court of Appeal to act on the issue.
The reasoning is relevant where an appellate court has allowed an appeal but a related issue raised by the respondent remains undecided, and the respondent seeks to have that issue determined after the original order has been set aside. It is particularly relevant to the distinction between using a notice of contention to support an order on an alternative basis and seeking different procedural relief if the appeal succeeds ([9]-[11]).
It also illustrates a situation in which an appellate court may remit an unresolved issue rather than decide it itself: the issue has not received full argument, and a decision in favour of the party raising it would require the matter to return to the lower appellate court in any event ([12]-[13]).
The judgment does not establish that remittal is required whenever evidence was not considered below, or whenever argument is incomplete. Its reasoning is tied to this procedural history and the particular form of relief sought. It also does not determine the admissibility of any evidence. A careful use of the decision would distinguish its procedural reasoning from the substantive evidentiary question left open.
The judgment supplied here does not discuss any later cases or subsequent treatment. It also contains no citations to other judgments. On the available source alone, it is not possible to say whether later courts have followed, applied, distinguished, or limited this decision.
The reasons do establish that the Court itself was addressing a motion to amend its earlier orders in this particular litigation. Its explanation of the notice of contention and its decision to remit are consequently the relevant propositions extractable from this text. Any account of later judicial treatment would require sources beyond the judgment provided.
The principal unresolved question was whether the “further evidence” should be admitted. The High Court expressly left that to the Court of Appeal ([12]-[14]). The judgment does not identify the evidence in detail, set out the applicable admissibility criteria, or decide whether the evidence would affect the appeal's outcome.
The Court of Appeal also had to take any further steps necessary to dispose of the appeal, including dealing with the costs of the trial ([14]). The High Court's order does not specify what the Court of Appeal should decide after resolving admissibility, or what costs order it should make concerning the trial. Those matters remained for the Court of Appeal.
Finally, the reasons do not explain whether the amended orders were made under a particular procedural rule or set out a general test governing variation of the High Court's earlier orders. The decision should therefore be understood as a focused procedural resolution, not as a complete statement of the law on finality, further evidence, or appellate remittal.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH AND GUMMOW JJ
WHISPRUN PTY LIMITED (Formerly
Northwest Exports Pty Limited) APPELLANT
AND
SONYA LEA DIXON RESPONDENT
Whisprun Pty Limited v Dixon [No 2]
[2004] HCA 2
5 February 2004
S216/2002
ORDER
Amend the orders made by this Court on 3 September 2003 by deleting the previous orders and substituting the following paragraphs:
Appeal allowed.
Set aside the orders of the Court of Appeal of New South Wales made on 28 September 2001.
Remit the matter to the Court of Appeal to determine whether "the further evidence" should be admitted and to take such further steps as are necessary to dispose of the appeal to that Court including the costs of the trial.
Respondent to pay the costs of the appeal to this Court and the proceedings in the Court of Appeal to date.
Each party to pay its or her costs of the notice of motion.
On appeal from the Supreme Court of New South Wales
Representation:
B W Walker SC with S E Pritchard for the appellant (instructed by Hicksons Lawyers)
D F Jackson QC with K J Ryan and N G Ford for the respondent (instructed by Walker Kissane & Plummer)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
GLEESON CJ, McHUGH AND GUMMOW JJ. The issue in this Notice of Motion is whether the Court should vary the orders it made in an appeal decided last year and remit the matter to the Court of Appeal of New South Wales to determine whether it should admit further evidence and then re-hear the appeal. The issue arises because, in giving judgment, the majority Justices did not deal with a contention of the unsuccessful respondent to the appeal.
On 3 September 2003, the Court made orders in an appeal brought by Whisprun Pty Limited ("Whisprun") against an order of the Court of Appeal for a new trial of an action for damages. The orders of this Court were:
Appeal allowed with costs.
Set aside the orders of the Court of Appeal of New South Wales made on 28 September 2001 and, in lieu thereof, order that the appeal to that Court be dismissed with costs.
The effect of these orders was that the verdict entered in favour of Whisprun, the defendant in the trial, was reinstated. At the trial, the respondent to the appeal in this Court, Ms Sonya Lea Dixon, had claimed that she suffered from chronic fatigue syndrome as the result of being infected with Q fever. The trial judge accepted that Ms Dixon had contracted Q fever but, because of the view that he took of her credibility, he was not satisfied that she suffered from chronic fatigue syndrome as the result of contracting Q fever.
The Court of Appeal set aside the verdict and judgment of the trial judge because it appeared to that Court that his Honour had not satisfactorily considered Ms Dixon's case. On appeal to this Court, a majority of the Court disagreed with this finding. The majority held that the case that the Court of Appeal found had not been properly considered was not the case that Ms Dixon had run at the trial.
By a Notice of Motion, Ms Dixon now moves the Court for an order that the orders pronounced on 3 September 2003 be varied by deleting Order 2 and replacing it with the following orders:
Set aside the orders of the Court of Appeal of New South Wales made 28 September 2001.
Matter remitted to the Court of Appeal for the determination of the issues the subject of the respondent's Notice of Contention dated 19 August 2002.
That Notice of Contention stated:
"The Respondent wishes to contend that the decision of the Court below should be affirmed but on grounds other than those relied on by the Court below.
GROUNDS
The Court of Appeal should have received the further evidence referred to on pages 46 and 47 of the Court of Appeal's reasons for judgment."
Whisprun opposes the making of the orders sought in the Notice of Motion.
Ms Dixon had contended in the Court of Appeal that the "further evidence" supported her claim that she suffered from chronic fatigue syndrome and that it showed that she was still suffering from Q fever. However, because that Court found that the verdict in favour of Whisprun should be set aside in any event, it did not rule on the admissibility of the further evidence.
Whisprun correctly points out that the issue raised in the Notice of Contention did not entitle this Court to affirm the order of the Court of Appeal. Even if the Court of Appeal had erred in not admitting the evidence, that error would not entitle Ms Dixon to retain her order for a new trial. At best, it would only entitle her to have her appeal to the Court of Appeal determined on the basis of "the further evidence" and the evidence given at the trial.
On its face, the Notice of Contention did not seek – nor could it have sought – an order that the matter should be remitted to the Court of Appeal if the appeal by Whisprun was upheld. The effect of a Notice of Contention is to support the order under appeal by an argument or arguments not accepted or applied by the court whose order is under appeal.
However, despite the filing of and the terms of the Notice of Contention, on the hearing of the appeal Ms Dixon's counsel said that he did not seek to use the issue of the admissibility of the further evidence as a ground for affirming the Court of Appeal's order. After counsel for Whisprun had completed his argument in reply, Ms Dixon's counsel said1:
"[W]hether the notice of contention be the right form or not, all that we seek in relation to it is that the matter be remitted to the Court of Appeal to deal with the unresolved issue of the admission of further evidence if the appeal is otherwise successful."
The question then is whether this Court should determine the issue of admissibility or make the orders sought by Ms Dixon. If the Court of Appeal should not have received the further evidence, the orders made on 3 September 2003 would stand. However, there are a number of difficulties with this Court determining the issue, the chief of which is that the Court has not had the benefit of a full argument from the parties on the issue. Moreover, if the Court decided the evidence was admissible, the case would have to be remitted to the Court of Appeal.
Given the circumstances set out in the previous paragraph, the best course is for the matter to be remitted to the Court of Appeal. That Court can then determine the issue of the admissibility of the further evidence and take whatever additional steps are required to dispose of the appeal to that Court.
Orders
The orders made by this Court on 3 September 2003 should be amended by deleting the previous orders and substituting the following paragraphs:
Appeal allowed.
Set aside the orders of the Court of Appeal of New South Wales made on 28 September 2001.
Remit the matter to the Court of Appeal to determine whether "the further evidence" should be admitted and to take such further steps as are necessary to dispose of the appeal to that Court including the costs of the trial.
The respondent should pay the costs of the appeal to this Court and the proceedings in the Court of Appeal to date.
Each party to pay its or her costs of the notice of motion.
Transcript of proceedings, 7 November 2002 at 85. ↩
Whisprun Pty Limited
Dixon
(2004) 78 ALJR 321
(2004) 204 ALR 22
The High Court amended its orders of 3 September 2003. It allowed Whisprun's appeal, set aside the Court of Appeal's orders of 28 September 2001, and remitted the matter to the Court of Appeal to decide whether the further evidence should be admitted and to take steps necessary to dispose of that appeal, including costs of the trial. Ms Dixon was ordered to pay the costs of the High Court appeal and the Court of Appeal proceedings to date. Each party was to pay its or her costs of the notice of motion.