Arsic v Goodrich Aerospace Pty Ltd

[2007] HCATrans 68

[2007] HCATrans 068

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S267 of 2006

B e t w e e n -

DUSAN ARSIC

Applicant

and

GOODRICH AEROSPACE PTY LIMITED

Respondent

Application for special leave to appeal

GUMMOW J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 FEBRUARY 2007, AT 2.49 PM

Copyright in the High Court of Australia

MR B.M.J TOOMEY, QC:   If it please your Honours, I appear with my learned friend, MR  D.J. HOOKE, for the applicant.  (instructed by Beilby Poulden Costello)

MR J.E. MACONACHIE, QC:    I appear with MR D.P. KELLY for the respondent, if your Honours please.  (instructed by Cutler Hughes & Harris)

GUMMOW J:   Yes, Mr Toomey.

MR TOOMEY:   Your Honours, the question of the effect of demeanour findings and the area in which they are entitled to some sanctity has been looked at by this Court a couple of times over recent years; in Fox v Percy and last year in CSR v Della Maddalena.  In both cases, although the Court expressed doubt as to the extreme sanctity that used to be given to demeanour findings, the Court reinforced the traditional view that, absent glaring improbability or some such thing, that a trial judge’s finding properly based on demeanour must stand. 

In this case the plaintiff was a labourer, employed by a body hire company, who was sent to work in the factory of the defendant respondents.  He said that his main job was to receive goods but that when he was short of work in that area he was sent to work in a reject cage matching wheel rims.  It was conceded that if he was working in that cage and was doing the job he said he did, then there was no question as to negligence.  The respondent’s case, advanced through its employed engineer, Mr Maslic, was that he never told the plaintiff to go into the cage, he never gave him a key to get into the cage, there was no work for the plaintiff to do matching wheel rims in the cage because every wheel rim in the cage was bound for destruction. 

The learned trial judge - in a careful judgment not subject to, in our respectful submission, any criticism on the grounds of delay because submissions were completed on 12 July and she gave her judgment on 7 September – carefully considered the evidence of Mr Maslic and the plaintiff for reasons which, as the Court of Appeal conceded, she fully expressed.  She found that the plaintiff should be accepted over Mr Maslic, demeanour‑based grounds, and she then entered judgment for the plaintiff.

GUMMOW J:   Against?

MR TOOMEY:   Against the present respondent, not against the employer, your Honour, on the basis that there was an analogous duty and the person using the body hire person to that of an employer to an employee.

CRENNAN J:   The Court of Appeal has remitted the matter for a retrial in relation to the issue of liability, has it not?

MR TOOMEY:   They did, your Honour.

CRENNAN J:   May I ask you then, what do you say in relation to the respondent’s submission in paragraph 15, application book 85, that “If the applicant’s argument succeeds, there must be a new trial”?

MR TOOMEY:   With respect, we would say that cannot be right, your Honour.  If our argument succeeds, then her Honour’s finding on demeanour, which was the whole basis of her decision on the facts, stands and your Honours – I am sorry.  Ultimately if we succeeded before your Honours if leave were granted, then the result would be that the appeal to the Court of Appeal would be ordered dismissed, so we would have our judgment.  As it is, the plaintiff, having had a judgment which we say was regularly obtained, now faces the gauntlet of a new trial in a case where there is not a huge amount of money involved and where that will undoubtedly eat away the verdict. 

But if I can shortly state to your Honours the grounds upon which we attack the judgment of the Court of Appeal which was pronounced by Justice Ipp.  His Honour treated some evidence given by Mr Maslic as being unchallenged.  The circumstances in which that arose were these.  The plaintiff gave evidence as to what he said happened, including the fact that he had been given directions by Maslic, he had had to match wheels, he had to get a key from Maslic, and suchlike.  His evidence was put to Maslic by Maslic’s counsel, my learned friend Mr Kelly, who is junior on this application, in Maslic’s evidence‑in‑chief.  In other words, the plaintiff’s case was put to Maslic in Maslic’s evidence‑in‑chief and he denied those matters.  He gave some reasons why he denied them, including that rather than there being the two halves of the damaged aeroplane wheels in the reject cage, that only one half would be there, a damaged wheel, and that every wheel that was in the reject cage was to be destroyed.  So he said there was no point in Maslic matching anything because they were all to be destroyed. 

Justice Ipp at paragraph 69 of the Court of Appeal judgment which he gave, which is starting at the bottom of page 49 of the application book, your Honours, sets out the five matters of fact which he says are to be deduced from the evidence of Mr Maslic and at the beginning of 70:

This evidence was unchallenged but diametrically opposed to that given by Mr Arsic. 

Now, your Honours, in the first place we say that these were merely evidentiary facts.  They were not proved by any particular document.  They were not corroborated.  They relied entirely on the evidence of Mr Maslic.  So we say they were worthy of no more credit from the start than the evidence of Mr Arsic.  It was not a case where there were objective proved facts which could not stand against the contrary oral assertion.  This was a contest between the word of Maslic and the word of Arsic.  That is our first submission, and we say that Justice Ipp misunderstood the nature of incontrovertible facts when he dealt with this matter.  These facts were not incontrovertible because they had been controverted by Arsic. 

We also say, your Honours, that in any event they were wrong.  We also say that in casting doubt on her Honour’s demeanour‑based findings, his Honour raised something which had never been raised at the trial and that is the effect on a judgment based on demeanour in circumstances where there are ethnic and cultural differences involved.  As I say, your Honours, it was never raised at trial.  It was, in our respectful submission, not of any conceivable weight in this case, because Mr Maslic was from Bosnia or Slovenia.  One was from Bosnia and one was from Slovenia, both on the western coast of the former Southern Slav Federation, separated only by the state of Croatia.  They both left there in 1995.  They were both men in their forties or fifties, so that one could assume that their culture and their language would have had the standardising effect of belonging to the Yugoslav Federation.  So to suggest, as Justice Ipp did, that her Honour may have been misled in her judgment of demeanour by cultural and ethnic differences could not be justified.

CRENNAN J:   That was not his Honour’s real point, was it?  If you look at application book 61, paragraph 115, his Honour makes it plain there that the basis of his decision is that the judgment as a whole was affected by the trial judge’s error to address squarely the testimony concerning certain factual matters.

MR TOOMEY:   That is correct, your Honour, but may I point out to your Honour that at paragraphs 21 to 23 at page 37 his Honour dealt with the effect of the differences and gave weight, it is submitted, to that difference.  At paragraph 114 on page 61 immediately before the paragraph your Honour Justice Crennan drew my attention to, his Honour said:

Much of the judge’s criticisms of Mr Maslic’s evidence are capable of being answered by reference to his different cultural background.

If that was of weight in the court’s decision, then, in our respectful submission, it was wrong. 

CRENNAN J:   At the beginning of 115 his Honour explains that:

I make these comments, not because I suggest that the judge was wrong in her criticisms of Mr Maslic, but to indicate that these matters did not lead inevitably to an adverse credibility finding.

MR TOOMEY:   That is so, your Honour, but, in our respectful submission, what he is saying in effect is that these had weight although they did not have to result in an adverse credibility finding, and we say but they did not have weight.  In this case you had one Slav against another of about the same age and background and there was no justification, if there is ever a justification, for saying that a judge at first instance must have some sort of Bench book which says when you are dealing with an Englishman you take this into account and a Frenchman you take this into account and we say, with respect, that is an impossible proposition.  Setting that aside, in this case they were the same background in any event. 

We get back to the position where his Honour, as your Honour Justice Crennan accurately says, with respect, goes to the matter of the unchallenged evidence.  We sent up to your Honours yesterday some photos and those photos, in our respectful submission, clearly prove that the major “unchallenged evidence” of Mr Maslic was in fact challenged.  These photographs went into evidence in the plaintiff’s case.  In other words, they were known to the defendant which called Mr Maslic before Mr Maslic was called. 

These were taken 20 months after the accident, but no evidence was given to suggest that the reject cage was in any relevant respect different at that time than it had been at the time of the accident and that would have been within the gift of the respondent.  His Honour Justice Ipp said that the evidence which was unchallenged was that the reject cage contained only single rims, no pairs of rims.  Now, that refers, as we understand it, to the fact that each wheel is made up of an inboard and an outboard rim and fitted together they form a wheel.  What Justice Ipp said had been found was that the reject cage contained only single rims, no wheels.  He also said at (c) on page 50:

All rims recommended for destruction were painted red and only rims recommended for destruction were placed in the reject cage.

So what his Honour says is unchallenged is every wheel in the cage is painted red and every wheel in the cage is painted red because it is to be destroyed.  If your Honours look at the photographs with 187 at the bottom your Honours will see that there are two lots of wheels in the reject cage, one lot to the left, one lot to the right.  The second photograph on 187 shows every wheel in that photograph is unmarked, there is no red paint on them.  Many of them are made up into complete wheels.  So the statement by Justice Ipp that the unchallenged evidence was that the reject cage contained only single rims is destroyed by that photograph.  That every wheel in the cage was painted red and was to be destroyed is also negatived by that photograph and by other photographs. 

For instance, if your Honours go to photographs 3 and 4 on 188 at the bottom, you will see in the top photograph the wheels in the cage red painted.  But if you go to the one at the bottom, you can see the wheels to the left of the cage, some single rims, some double rims and every one of them without any red paint.  So, in our respectful submission, that destroyed the first three of the unchallenged evidence points found by his Honour on page 50.  It did not only contain single rims.  Not every wheel in the cage was marked for destruction.  Therefore, it was not true to say, as his Honour said at (b):

Thus, no matching of pairs could have occurred in the reject cage.

His Honour said that it was unchallenged that the:

Rims matching those in the reject cage were in the quarantine cage.  Rims remained in the quarantine cage until the customer supplied a replacement for the destroyed rim.

That is contrary to the fact.  At least, it is contrary to the fact that it was unchallenged, because at pages 82 and 83 of the black book the plaintiff gave this evidence in cross‑examination by Mr Kelly.  Would your Honours allow me to refer.  I will give your Honours the transcript pages.

GUMMOW J:   You are stirring up trouble, Mr Maconachie.

MR MACONACHIE:   I just thought it would be nice to have some notice of this, your Honour.

MR TOOMEY:   I would have thought you knew the point was in issue.  At 82T:

Q.       Mr Arsic, what I suggest is the parts that went into the reject cage most of them were simply either inboards or outboards, not whole wheels.  Do you agree or disagree with that?
A.       There was mess inside, I disagree.

Q.       What I’m saying is that if a part of a wheel was damaged and went into the reject cage it was only that part that was damages, that is the inboard or the outboard that went in there, not the whole wheel?
A.       That’s not true.

Q.       I suggest that any part of a wheel that wasn’t damaged would go up to the quarantine cage and wait for the replacement part to come back to match up with it?
A.       That’s not true.

So that deals with the suggestion of his Honour Justice Ipp that the unchallenged evidence was that the other half of the destroyed rims in the reject cage all went into the quarantine cage.  Then finally, the unchallenged evidence, says his Honour, was that Mr Maslic was not involved in the removal of rims from the reject cage.  He certainly said that first, your Honours, but at page 112J in cross‑examination he was asked this: 

Mr Maslic, I’m asking you a simple question.  If you told someone to tidy up the reject cage you would instruct them that everything was to stay inside the case while they did the job?
A.       Yeah, yeah of course, of course.

Q.       And before anything was moved out of the –

it says “case”, should be cage –

you would have to okay it to make sure that you knew what was going and where it was going to?

Your Honours, if it be the fact that those pieces of evidence were not unchallenged pieces of evidence, the whole basis of the Court of Appeal’s decision fell away.  The evidence was before her Honour.  As your Honours know, Abalos, which was a unanimous decision of this Court, says that the fact that a judge has not referred to specific evidence cannot be taken to mean that she has not had regard to it.  So, in our respectful submission, there was simply no basis on which the Court of Appeal were entitled to interfere in the decision in this case. 

Your Honours, we would also say that the question of what force is to be given to the demeanour‑based findings is not yet decided.  It is plain in Fox v Percy and CSR v Della Maddalena that it has troubled this Court. The suggestion that you now engraft onto the tests which have been laid down some sort of consideration of cultural and ethnic background, in our respectful submission, is something that the Court would want to deal with. I recognise that I am on borrowed time, your Honours, but can I just say that Justice Ipp wrote an article in 80 ALJ 667 called “Problems With Fact‑Finding”. We sent that up to your Honours. I would like to just read a short part of that to your Honours to give you some idea of how extreme his Honour’s attitude to the weight of demeanour‑based findings is. He said at page 672:

judges should focus on probabilities and inconsistencies, rather than demeanour.  Close attention should be paid to contemporaneous documents.  Where oral testimony is in conflict with contemporaneous documents, it may be unreasonable to believe what the witness says.  The probabilities and consistency of the witness’s version should be measured against the incontrovertible and agreed facts, as well as the remainder of the witness’s evidence (including that given on other occasions).  Regard should then be had to other facts found.  Other facts relating to credit may be relevant.  But the probabilities, together with external and internal consistency, should always be the touchstone of factual findings.  Finally, attention must be given to the demeanour of the witness.  I would consign demeanour to the bottom of the list.

How, with great respect, your Honours, are you going to decide what facts you find when they are not incontrovertible facts until you have determined which witness you are inclined to believe on the basis of demeanour?  In our respectful submission, it ought to be looked at.  May it please your Honours.

GUMMOW J:   We do not need to call on you, Mr Maconachie.

The New South Wales Court of Appeal in this matter ordered a retrial on the issue of liability.  An appeal to this Court would raise no point of general principle respecting demeanour‑based findings or otherwise.  We are not satisfied that the interests of justice require the intervention of this Court and, accordingly, special leave is refused with costs.

The Court will adjourn to 10.15 am on Tuesday, 20 February 2007 in Canberra.

AT 3.14 PM THE MATTER WAS CONCLUDED