Case: House v The King [1936] HCA 40 ; (1936) 55 CLR 499
Outcome: applied
the course of the hearing of the appeal, I drew the attention of counsel for the appellants to the fact that the orders of 1 April and 14 April 2008 resulted from exercises of judicial discretion. An appeal from a judgment involving an exercise of judicial discretion is not to be resolved according to the manner in which the appeal court thinks that the discretion should have been exercised. As Dixon, Evatt and McTiernan JJ said in the well-known passage in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 504-505: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. I invited counsel for the appellants to indicate on what wrong principle the federal magistrate had acted, what extraneous or irrelevant matters he had allowed to guide or affect him, what mistakes of fact he had made, or what material consideration he had failed to take into account. Counsel for the appellants contended that the federal magistrate had failed to give sufficient weight to the fact that Mr Lee was not fluent in English and did not have the benefit of an interpreter, to the fact that the appellants were without legal representation, and to the fact that Mr Lee's father was seriously ill in China. Counsel for the appellants also contended that the federal magistrate had acted upon a wrong principle, by failing to apply the correct principle. The correct principle advanced was that a party should not be made to suffer a judgment for a large sum of money without being entitled to a trial and judgment on all of the issues in a proceeding to which that person is a party. The principles enunciated in House as those upon which an appeal court approaches the exercise of discretion by the court appealed from do not speak of the weight to be given to various considerations. Those principles are concerned with whether or not the judge at first instance took into account irrelevant matters at all, or failed to take into account all material considerations. It is very clear from the reasons for judgment he gave on 14 and 15 April 2008 that the federal magistrate took into account the fact that the appellants were not legally represented and that Mr Lee's father was seriously ill in China. As the transcript of what occurred on 14 April 2008 shows, his Honour was also concerned to ensure that Mr Lee understood what was going on, despite his lack of English. The case was stood down from 10.30 am until 2.15 pm because of the unavailability of an interpreter in the morning. In substance, the hearing on 14 April 2008 was conducted through an interpreter. Even on 1 April 2008, when no interpreter was present, the federal magistrate took pains to ensure that Mr Lee would understand the order that was made. His Honour stressed that Mr Lee should see a solicitor about the order. If it were a matter of the weight to be attached to these considerations, there is much that could be said about the conclusion to which the federal magistrate should have come. In the first place, there is the account by Mr Lim of the attempted inspection of documents on 19 March 2008. This account was never refuted by Mr Lee, despite Mr Lee filing two subsequent affidavits. Even when he had an interpreter available to him, the only response Mr Lee made to this on 14 April 2008 was to allege that the solicitor had lied about the time that he had arrived at the offices of the appellants' former solicitors, to carry out the inspection of documents. There was no attempt to counter Mr Lim's allegation that Mr Lee had demanded the payment of $3,000 before he would comply with the court's order. There was no attempt to refute the allegation that he had maintained this demand, despite the advice of his own solicitor that he was obliged to comply with the order and could not demand money before doing so. When he appeared before the federal magistrate on 1 April 2008, Mr Lee did not attempt to explain why it was that the appellants' former solicitors had ceased to act for them. No explanation for the fact that the appellants had become unrepresented was ever offered, to the Federal Magistrates Court or to this Court. On 14 April 2008, when he was asked about attempts he had made to obtain legal representation, Mr Lee made it clear that he had not made any serious attempt. He had telephoned one solicitor who refused to act, and requested his former solicitors to find a replacement. It is not surprising that the federal magistrate regarded this as a failure to take an opportunity given.