Advanced Electrics Pty Ltd v Smith

[2004] HCATrans 441

[2004] HCATrans 441

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B85 of 2003

B e t w e e n -

ADVANCED ELECTRICS PTY LTD

Applicant

and

TREVOR ANDREW SMITH

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 NOVEMBER 2004, AT 10.05 AM

Copyright in the High Court of Australia

MR D.O.J. NORTH, SC:   May it please the Court, I appear with my learned friend, MR L.F. KELLY, on behalf on the applicant.  (instructed by Minter Ellison) 

MR J.G. CROWLEY, QC:   May it please the Court, I appear with my learned friend, MR R.W. TROTTER, for the respondent.  (instructed by Shane Ellis Lawyers)

GLEESON CJ:   Yes, Mr North. 

MR NORTH:   Your Honours, in our outline at paragraphs 34 to 37, page 68 of the appeal record, we pointed to the important questions that we submit arise concerning the use that can be made of expert opinion evidence by a court in adversarial proceedings and the related application, in certain circumstances, of the rule in Browne v Dunn. 

Your Honours, in paragraphs 26 and 36 of our outline, we have drawn attention to the vexed problem of the admissibility of expert opinion evidence and the tender of that evidence.  The authorities to which we have referred in this Court and in the Court of Appeal of New South Wales demonstrate that a court is not obliged to accept the evidence of an expert and act upon it, even when tendered without objection or uncontradicted, where the expert evidence goes to the ultimate issue in the litigation. 

The ultimate issue in this case, when tried before Justice Ambrose at first instance, was whether the respondent in this Court – the plaintiff below – was at all relevant times on and from when the cause of action accrued on 25 September 1997 relevantly under a disability or, in other words, of unsound mind, within section 29(1) and 29(2)(c) of the Limitation of Actions Act, when read with section 5(2) of the Act. 

Your Honours, the affidavit of the psychiatrist, Chittenden, on whom the plaintiff – the respondent in this Court – relied tended to swear to the ultimate issue.  That can be seen from paragraph 4 of her affidavit that was filed in the proceedings below, which is at page 24 of the appeal record. 

HAYNE J:   Well, assume that to be so.  Assume that that might have given you ground to object to its reception.  There was no objection taken, was there? 

MR NORTH:   No, there was no objection taken, your Honour, but ‑ ‑ ‑

HAYNE J:   The opinion thus expressed was not challenged on cross‑examination. 

MR NORTH:   That is so, your Honour, but the authorities indicate that even in that circumstance a court is not obliged to accept that evidence, particularly where there is evidence tendered and admitted into evidence, that undermines the basis for the conclusion reached, being the ultimate opinion that was for the court to conclude.  Your Honours, the psychiatrist first saw the respondent on ‑ ‑ ‑

HAYNE J:   Am I right in understanding that the first challenge to this conclusion is a challenge made in the course of submissions in reply? 

MR NORTH:   Submissions in reply – we could cavil with that.  In the course of my client’s submissions, in the course of addresses. 

HAYNE J:   So the first challenge is made in the course of addresses, all the evidence then being in? 

MR NORTH:   Yes, and all the evidence having been tendered by the plaintiff.  The point which we have essayed in our outline is that the plaintiff tendered evidence that, on a clearly open view, undermined the conclusion that the expert had sworn to, an expert who had not been privy to the plaintiff’s condition at the time when the plaintiff relevantly made the application for compensation, gave statements to witnesses and took steps to protect his interests in the ways in which we have outlined in our outline and in the ways which were discussed by the trial judge.  It was for the plaintiff to prove that on and from the day of the accident he was of unsound mind.  Relevantly, that means in terms of the undisputed authority in this State and elsewhere that he was incapable of taking steps to protect his own interests. 

Now, the plaintiff and his solicitor tendered affidavits that exhibited documents that showed that he was able to give instructions to a workplace health and safety officer about the circumstances of the accident and sign a statement, he was able to make applications for compensation, take steps to prosecute the applications for compensation, and he was able to do other things in connection with his legal rights that were rather inconsistent with the notion that he was so ill that he could not take steps to protect his interests in relation to litigation. 

There was other evidence, too, that demonstrated or tended to indicate that the effects of the psychiatric condition had not taken effect until some days or weeks after the incident.  What his Honour was confronted with was the requirement on the plaintiff’s own application that he prove that on and from the accident he was of unsound mind.  What the plaintiff did was tender evidence that went both ways.  He tendered the evidence in his case that undermined his case.  The expert whose evidence was before the court did not see him for some 20 months until after the accident, so relevantly her evidence was hearsay on those issues, relying as best she could on whatever the applicant or others told her – relying upon whatever the plaintiff or others told her of the plaintiff’s condition from time to time. 

Our point is that where an onus rests upon a plaintiff, where a plaintiff tenders evidence against his or her case, and where that plaintiff relies upon an expert opinion that is relevantly hearsay, a court is not bound to accept the expert’s opinion, even though it may have been unchallenged, where the factual evidence tendered by that party tends to undermine the factual foundation for the conclusion sworn to.  That is, we submit, an established authority. 

To then invoke the principles of the rule in Browne v Dunn in the circumstances of this case in the way in which the Court of Appeal has done creates a problem for tribunals in adversarial litigation if the Court of Appeal’s approach is to be followed.  We submit that there is nothing unfair in the circumstances for the opposed party to submit at the end of a trial that on the evidence tendered by a plaintiff in the plaintiff’s own case the plaintiff’s case is not made out.  The approach that the Court of Appeal has made has been ultimately, we would submit, to invert the principles that have been established. 

That can be seen, your Honours, if your Honours go to the judgment of Justice Fryberg in the Court of Appeal at paragraph [44] of his reasons at page 54 of the record, where his Honour said, towards the end of that paragraph at about line 14: 

It was not the appellant’s obligation to pre‑empt the respondent’s case, even had he known what that case was. 

But the respondent in this Court – the plaintiff below – had always to prove the factual foundations for the expert opinion and to persuade the court that the ultimate conclusion of unsoundness of mind in the relevant sense ought to be reached, namely, that at all times, from that day of the accident, he was relevantly disabled. 

In paragraphs [11] and [15] of his Honour Justice Fryberg’s reasons in the Court of Appeal – they can be seen at pages 41 and 42 of the appeal record – in paragraph [11], his Honour clearly has set out that the application that was filed by the plaintiff below sought a declaration that the plaintiff: 

had been under a disability and/or of unsound mind since the date of the accident and that the limitation period had not expired –

In paragraph [15] of his Honour’s reasons at page 42, his Honour recognised that: 

It was therefore not enough for the appellant to show that he suffered post‑traumatic stress disorder.  It was necessary for him to show that he was under a disability on and from the date of the accident. 

Yet in paragraph [27] of his Honour’s reasons, which your Honours can find at page 48 of the record, his Honour concluded that that very issue, whether he was of unsound mind on and from the date of the accident, was “a completely new point”.  Now, granted that the submission was made in addresses, but it was a point that was at the heart of the declaration sought in the application initiating these proceedings and, as his Honour has said, it was always a necessary and vital element for the plaintiff to prove to get the declaratory relief sought. 

Your Honours, the consequence, we submit, of the approach taken by his Honour is that by paragraph [44] in his Honour’s reasons at page 54 of the record that I took your Honours to, where Justice Fryberg said that: 

It was not the [plaintiff’s] obligation to pre‑empt the respondent’s case –

is, with respect, effectively to invert the onus of proof, the onus always having rested upon the plaintiff to prove that fact.  We submit that it is apparent from the reasons of the trial judge, Justice Ambrose, that his Honour did not lose sight of the fact that the ultimate issue was one for him to determine on the whole of the evidence – his Honour noted that at paragraphs [27] and [30] of his reasons in the appeal record at pages 31 and 32.  Consequently, it is submitted that his Honour was entitled to conclude that he could not accept the evidence of Dr Chittenden to the extent that she asserted unsoundness of mind on and from 25 September, because of the significance of the evidence to the contrary that his Honour identified and that we identify in our outline. 

Your Honours, we submit that viewed in this light, the approach of the Court of Appeal relying upon the rule in Browne v Dunn serves to turn the authorities to which we have referred concerning the receipt and use of expert evidence on their head.  There was no issue of unfairness.  It was apparent that during the course of the proceedings, in addresses, the point upon which the trial judge concluded against the respondent was squarely raised.  There was no complaint from the plaintiff’s counsel of unfairness.  Merely, the point was made – and, we submit, incorrectly submitted – that an expert opinion could not be found against where it had not been challenged.  But that flies in the face of the authorities in this Court and in the Court of Appeal in New South Wales to which we have referred in our outline. 

Your Honours, according to my recollection in the Court of Appeal below, there was no complaint in the appeal from the appellant below – the respondent here – of unfairness.  The issue arose in argument from the court when I was on my feet.  The result here is that in the circumstances where there has been no complaint that the issue was a surprise before the trial judge, the conclusion of unfairness by the Court of Appeal is surprising, particularly when the evidence identified tends to point against the plaintiff’s case and was tendered by the plaintiff. 

The subsidiary issue or the alternative issue that we complain about in our outline is the order that there be no new trial.  There the Court of Appeal divided on that point.  Justice Jerrard dissented on that point.  He noted that the evidence of the plaintiff – the respondent here – was equivocal on the point as to his unsoundness at the relevant times.  He noted that the evidence that was tendered by the plaintiff was capable of supporting a conclusion that was reached by his Honour, and it is apparent, from what Justice Jerrard has said, that if the matter were to be re‑litigated in precisely the same way that it was litigated below, again, in light of the knowledge everyone has of the issue, it would be open to the court to conclude as Justice Ambrose did. 

By way of comparison, however, although Justice Fryberg recognised that the evidence was not all one way, as he recognised that at paragraph [21] of his judgment at page 44 of the record, his Honour’s conclusion that there should be no retrial seems to have been based upon matters that he suspected or matters that might have been.  Your Honours will see in paragraphs [37] and [38] of his reasons and at paragraph [44] of his reasons on a number of points he raised suppositions as to the answers that might have been given by the plaintiff or by Dr Chittenden to the questions that might have been put, if there was cross‑examination.  The conclusion that there should be no retrial seems to have been based upon a matter of supposition as to what the answers would have been if the questions had been put. 

HAYNE J:   Or is it rather based on the proposition that if there has been an unfairness at trial, brought about by the way in which your side’s case was conducted, so be it, decide on the evidence that was adduced? 

MR NORTH:   Yes, your Honour, but it was an unsafe way to proceed in the circumstances, because the point being the ultimate point, the important point to decide, where the evidence went both ways and having been, as the Court of Appeal concluded, relevantly untested, it flies in the face of the proper administration of justice not to permit the issue to be tested.  We

would submit that the class of cases in which an order might be made that there be no retrial is where there has been a relevant failure, a failure to test evidence that might go to subsidiary issues or might be part of the package of factors that would lead to an ultimate inference or conclusion or finding. 

Here, the point that was apparently untested is the ultimate issue.  There was no trial, and both sides are entitled to have a trial in the interests of the administration of justice, if we are wrong on our primary submission.  Those are our submissions, your Honour. 

GLEESON CJ:   Thank you.  We do not need to hear you, Mr Crowley.

The decision of the Court of Appeal of the Supreme Court of Queensland in this case turned on the application of well‑settled principles to the particular facts and circumstances and the case does not raise an issue suitable for a grant of special leave to appeal and we are not persuaded that the interests of justice require such a grant. 

The application is dismissed with costs.

MR CROWLEY:   We asked for costs, but I understand that the Court already awarded them.

GLEESON CJ:   Yes.

MR CROWLEY:   Thank you, your Honour.

AT 10.25 AM THE MATTER WAS CONCLUDED