Appeal Outcome: Special leave application dismissed 11 February 2009 (S450/2008) New South Wales Court of Appeal CITATION: Miller v Nationwide News Pty Limited [2008] NSWCA 222 HEARING DATE(S): 8 September 2008 JUDGMENT DATE: 8 September 2008 JUDGMENT OF: Hodgson JA at [1], [27]; Bell JA at [24]; Gyles AJA at [25] EX TEMPORE JUDGMENT DATE: 8 September 2008 DECISION: Notice of Motion dismissed with costs. CATCHWORDS: PROCEDURE – Review of decision of single judge of appeal – Whether error shown. LEGISLATION CITED: Supreme Court Act 1970 s 46(4) Supreme Court Rules Pt 66A CATEGORY: Procedural and other rulings PARTIES: William Walter MILLER (Claimant) NATIONWIDE NEWS PTY LIMITED (ACN 008 438 828) (Opponent) FILE NUMBER(S): CA 40111/08 COUNSEL: In Person (Claimant) D R SIBTAIN (Opponent) SOLICITORS: Blake Dawson (Opponent) LOWER COURT JURISDICTION: Court of Appeal (single judge) LOWER COURT DATE OF DECISION: 16 June 2008 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40111/08 HODGSON JA BELL JA GYLES JA Monday 8 SEPTEMBER 2008 William Walter MILLER v NATIONWIDE NEWS PTY LIMITED (ACN 008 438 828) Judgment 1 HODGSON JA: On 16 June 2008 Beazley JA dismissed a notice of motion brought by the applicant, Mr Miller, in which Mr Miller sought an extension of time for lodgement of a notice of appeal from an adverse decision in the District Court, and also sought a reference for legal assistance pursuant to Pt 66A of the Supreme Court Rules. It appears that the notice of appeal should have been filed by 30 April 2008, but it was in fact filed on 6 May 2008; and the notice of appeal was therefore out of time unless the extension sought from Beazley JA was granted. The reason given by Beazley JA for not granting the extension of time was that Mr Miller did not have an arguable case on the appeal. 2 Mr Miller seeks a review of that decision pursuant to s 46(4) of the Supreme Court Act 1970. The application for review was itself about eleven days late. However, I propose to consider the merits of this application. 3 Mr Miller's case in the District Court concerned a claim that the respondent, Nationwide News, had entered into a contract with him to pay him $250,000 for certain information, that he had provided this information to Nationwide News and that it had been published in the Daily Telegraph, and that Nationwide News had failed to pay him anything. 4 Mr Miller gave evidence at the hearing before Delaney DCJ, as did the Daily Telegraph reporters with whom he had dealt in relation to the information, namely Ms Wockner and Mr McIlveen. The plaintiff's evidence was to the effect that the agreement on the basis of which he claimed was made in conversations with these reporters culminating in a conversation with Mr McIlveen on or about 25 July 2005. It was clear that information given by Mr Miller to Nationwide News was published in the Daily Telegraph on 27 July, with some more published on 28 July 2005. 5 Delaney DCJ accepted Mr McIlveen's recollection of events should be accepted in preference to that of Mr Miller, that Mr Miller believed he had an agreement with the Daily Telegraph that he would receive money for the information, but that he was mistaken in his recollection of what was said to him by Ms Wockner and Mr McIlveen when they made it clear to him that the Daily Telegraph would not pay. Accordingly, Delaney DCJ held there was no concluded contract made and dismissed Mr Miller's claim. 6 The notice of appeal which Mr Miller wishes to pursue gives notice of an intention to rely on the following matters: (1) that Ms Wockner and Mr McIlveen gave untrue evidence; (2) that since Mr Miller's offer made to Ms Wockner to give information of $250,000 was not rejected, and since Mr McIlveen sought and received the information without telling Mr Miller he would not be paid, this entitled Mr Miller to payment on the basis of unconscionable conduct even if there was no contract. 7 Mr Miller's written submissions to Beazley JA made a number of further points including the following: (1) that Delaney DCJ was biased, for example, in permitting the Nationwide News barrister to put trick three-part questions to him; (2) that Delaney DCJ did not allow him to tender certain file notes; (3) that there were errors in dates and other evidence given by Ms Wockner and Mr McIlveen that showed they were lying. 8 In his affidavit supporting his application before this court, Mr Miller says that Beazley JA made mistakes in her judgment, particularly in not giving effect to his file notes, one of which dated 25 July 2005 recorded "Luke said they would pay me the $250,000 if they run the story" and another of which dated 26 July 2005 records "Luke said the story has no credit and not running story", showing, Mr Miller submitted, that Mr McIlveen lied to him. 9 In oral submissions today, Mr Miller also submitted that Beazley JA erred in repeating a finding by Delaney DCJ that Mr Miller had given Mr McIlveen the information that was subsequently published before any question of payment was raised. 10 Because the effect of Beazley JA's judgment was to put an end to Mr Miller's appeal without a full hearing, this court permitted Mr Miller to make further submissions concerning Delaney DCJ's decision, including a submission that Delaney DCJ did not allow Mr Miller to subpoena a solicitor, Michael Croke, and did not admit into evidence a letter written by Mr Croke to the Legal Services Commission stating that Mr Miller had told him that the Daily Telegraph had agreed to pay him $200,000 for his story. 11 Mr Miller also submitted there was inconsistency in Delaney DCJ's judgment in saying that Mr Miller believed that he had an agreement, and yet not finding that such an agreement was made. He submitted that, whereas Mr Miller had provided phone bills, Ms Wockner had not done the same, so that her evidence lacked support; and he submitted that Ms Wockner and Mr McIlveen had got together to concoct their file notes. 12 As the court explained to Mr Miller, the question which this court has to decide is not whether there was a contract between him and the Daily Telegraph, but whether we should overturn Beazley JA's decision; and that in turn requires that we be satisfied that her decision was wrong. 13 Beazley JA refused the extension of time sought by Mr Miller, because she did not consider there was an arguable case on his appeal. In my opinion that was a correct approach to the question facing her, and the only remaining question is whether she was in error in concluding that there was no arguable case. 14 Beazley JA carefully considered the matters raised by Mr Miller, and concluded there was no reasonable possibility that an appeal court would overturn Delaney DCJ's preference of the evidence of Mr McIlveen to that of Mr Miller, or that an appeal court would hold that Delaney DCJ was wrong not to have been satisfied of the existence of a contract. 15 In particular Beazley JA did not consider the file notes sufficiently evidenced the actual conversation in which the matter of the $250,000 was discussed. I would comment that it is common that people can get the wrong impression from conversations and the existence of a contract depends on the actual content of the conversations rather than the impression that people might take from them. 16 Concerning other particular matters raised by Mr Miller, I can see no basis for his assertion that Delaney DCJ was biased. The questions that we have been referred to do not seem to be questions that necessarily called for intervention from a trial judge. Mr Miller also pointed to questions in which he suggested Delaney DCJ was improperly leading a witness. Again, it seems to me that that was rather the judge attempting to clarify matters. 17 As pointed out by Beazley JA, although Delaney DCJ said to Mr Miller that his file notes were not to be tendered at a certain stage of the proceedings, Mr Miller was invited to tender material later on, and at that time the file notes were not tendered. 18 In relation to his submission that the reporters, and in particular Ms Wockner, told lies because of evidence concerning the dates of telephone conversations, it seems to me that errors in relation to dates of a day or two, or as to who telephoned who on a particular date, about two and a half years after the event, are not suggestive of deliberate lies. 19 The letter from the solicitor Mr Croke would not have been admissible in evidence before Delaney DCJ; and in my opinion it could not be considered unreasonable for Delaney DCJ to have refused to postpone the conclusion of the trial at that stage to allow Mr Croke to be subpoenaed. 20 In relation to the suggestion of error by Beazley JA and Delaney DCJ in relation to the timing of the giving of the information and the request for $250,000, it seems clear to me that that was not the main basis of Delaney DCJ's decision. Rather, it was that he was not satisfied, on the balance of probabilities, having regard to the evidence given by Mr Miller and Ms Wockner, that a concluded contract was made. 21 For those reasons I am not persuaded that there was any error by Beazley JA and I am not persuaded that there is any ground on which this court should review her decision. 22 For those reasons I would propose that the notice of motion before us be dismissed. 23 I would simply add, in relation to the aspect of the notice of motion that refers to the reference for legal assistance pursuant to Pt 66A, that it seems to me that that is an administrative matter that would not on its own be a matter appropriate for review under s 46. Since I am proposing that the notice of motion be dismissed for the reasons I have given, that is not a matter that requires further attention. 24 BELL JA: I agree with the order proposed by the Presiding Judge and with his Honour's reasons. 25 GYLES AJA: I also agree with the orders proposed and with his Honour's reasons. 26 It seems to me that Beazley JA was correct in considering whether there was an arguable case on appeal if leave were granted, and that no appellable error has been identified in her Honour's reasoning. It is not an at large review of that decision on the merits of it. The appellant has put forward a discursive series of points in no particular order designed to show error by the trial judge. It is not for this court to construct a coherent argument for the applicant. The issue below was a question of fact that depended entirely upon the assessment of oral evidence of witnesses. The issue was considered over several days by the trial judge and a reasoned judgment delivered. In my opinion an appeal, if leave were granted, would be hopeless. 27 HODGSON JA: So for those reasons the order of the court is: notice of motion dismissed with costs. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.