Atlis v TAB Ltd & Anor

[2005] HCATrans 662

[2005] HCATrans 662

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S33 of 2005

B e t w e e n -

WILLIAM ATLIS

Applicant

and

TAB LIMITED

First Respondent

FRANCIS MICHAEL YOUNGMAN

Second Respondent

Application for special leave to appeal

McHUGH ACJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 SEPTEMBER 2005, AT 11.36 AM

Copyright in the High Court of Australia

MR G.O’L. REYNOLDS, SC:   May it please the Court, I appear for the applicant with my learned friend, MR R.C. SCRUBY.  (instructed by Etheringtons)

MR R.S TONER, SC:   If it please the Court, I appear for the respondents with my learned friend, MR M.A. BARKO.  (instructed by TurksLegal)

McHUGH ACJ:   Yes, Mr Reynolds.

MR REYNOLDS:   Your Honours, before I commence my submissions, the special leave application in this case was filed out of time and I therefore need an extension of time.

McHUGH ACJ:   Yes.  Well, proceed to your main argument.

MR REYNOLDS:   Your Honours, can I deal with my submissions under two main headings.  First of all, can I address the point of importance which we say warrants the grant of special leave and, secondly, can I deal with some issues relating to whether this is an appropriate vehicle?  The issue of importance which, I submit, is raised by this case is the correctness of one important aspect of the decision of this Court in Warren v Coombes. 

Your Honours will recall in Warren v Coombes there was no dispute about the primary facts and the issue the Court looked at was whether the trial judge was correct or incorrect in finding no negligence on the basis of those undisputed primary facts.  Now, the effect of the approach adopted by the majority in that case, we suggest, is best summarised in the judgment of Sir Keith Aickin.  If your Honours go to our book of authorities, using the page numbers at the bottom right-hand of the page, at page 32.  This is Warren v Coombes at page 562, at about point 2. Sir Keith says this:

On the view adopted in the joint judgment it is for each member of this Court to consider whether he would himself conclude that there was negligence on the facts as found –

In other words, the term “negligence” as if he is trying the case at first instance.  Now, I submit that it is clear from the majority judgment in that case that that is a correct summary of the position adopted.  If your Honours go – I will use the page numbers in Warren v Coombes – to page 551 at about point 7 on the page the majority say:

that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.

Now, we do not dispute that proposition in relation to drawing inferences of fact from primary facts.  They go on to say on the following page, at page 552 at about point 6:

the question whether the facts found do or do not give rise to the inference that a party was negligent [is not] one which should be treated as peculiarly within the province of the trial judge.

And these are the important words:

On the contrary we should have thought that the trial judge can enjoy no significant advantage in deciding such a question. 

Now, over the page on 553 their Honours review all of the facts and at the bottom of the page say, at about point 8 that:

The proper conclusion to be drawn from the facts was that the respondent was driving in a negligent manner –

ergo:

The learned trial judge was wrong –

Now, in our written submissions we have submitted that that approach is open to question and we have suggested that this Court should grant leave in order to consider the correctness of the approach adopted by the majority in Warren v Coombes, at least on this point.

McHUGH ACJ:   Well, is not the problem that you have to overcome is that even on your theory of the appeal the Court of Appeal found error and it is found in paragraph 51 at page 72 of the book:

Accordingly, the finding that the “removal of the young men” would have been an “effective measure” cannot be sustained.

Now, that is the error that the Court found.  So even on your theory of the appellate jurisdiction, they were entitled to move, were they?

MR REYNOLDS:   Well, your Honour, I would suggest that what their Honours are dealing with there is they are disagreeing with the conclusion of the primary judge in relation to whether reasonable care was exercised.  What they are not doing is disputing a primary fact.  They are just saying, we do not agree with the conclusion of negligence and this notion of an effective measure, but that is simply the reasoning that underlines the primary judge’s finding that there was a lack of reasonable care.  It is not so much an error rather than an indication by the Court of Appeal that they disagree with this finding that there was no reasonable care.

McHUGH ACJ:   It is very difficult, is it not, to criticise the approach in Warren v Coombes?  Appeals fall into three broad categories.  There is an appeal in the sense of a rehearing de novo in which the witnesses are called.  There is an appeal in the strict sense in which you must show that the judgment was wrong at the time it was delivered and there is the appeal under the Judicature Acts which judgment is given as at the time when the Court hands down its decision and where it can take into account new evidence.  That is a rehearing.  Why is that not consistent with the approach in Warren v Coombes?

MR REYNOLDS:   Your Honour remembers well that before Warren v Coombes there was a case called Edwards v Noble.

McHUGH ACJ:   Edwards v Noble, yes.

MR REYNOLDS:   And I would submit, and I can take your Honours to the relevant passages, that every single one of the five judges in that case made it quite clear that a judge in the Court of Appeal cannot just review the finding of facts and treat the case as if he is trying the case at first instance.

McHUGH ACJ:   Well, that was the accepted doctrine until that time, but Warren v Coombes put an end to it.

MR REYNOLDS:   The problem, your Honour, is this, and Sir Keith Aickin notes this at page 561 at about point 7, that there was not any full investigation or argument at all about this precise point in Warren v Coombes and I submit that there are real difficulties with it. To underline that, can I take your Honours to a passage we have quoted in our submissions? This is in the application book at page 89 at the bottom where we quote from a judgment of Justice Hayne in Woods v Multi-Sport.  His Honour there says that the decision as to negligence requires a balancing exercise and has some of the features of an exercise of discretion.  Then over the page his Honour says:

It may be that –

such a decision should only be reviewed –

if there was an evident error of principle or if the decision was one not reasonably open.

Now, that is the way the President, Justice Mason, approached the case.  He said it was open to conclude as the trial judge did.  Now, that is one aspect, that is, this balancing exercise is in the nature of an exercise of discretion.  The other point is that when one is dealing with the reaction of a reasonable man, one is talking about a value judgment based on community standards and I would submit that it is very difficult to assimilate that inquiry simply to a question of whether or not you can infer fact C from primary facts A and B.

If your Honours go to the decision in Edwards v Noble which is in our book, which I will take your Honours to briefly, I would submit that all of the judges say that it is not simply a matter for the appellate court to treat the case as if it is trying it at first instance.  Sir Garfield Barwick at page 304 – this is page 41 of the book – at about point 5:

If that finding is a view reasonably open on the evidence, it is not enough in my opinion to warrant its reversal that the appellate court would not have been prepared on that evidence to make the same finding.  Merely differing views do not establish that either view is wrong.

Then Sir Edward McTiernan at page 308 at about point 4 talks about the inference of negligence and says:

In my opinion the evidence does not afford any convincing reason for rejecting that inference.

Further on at page 315, Sir Victor Windeyer at about point 4 talks about a decision by the trial judge should not:

be set aside unless they are convincingly shown to be wrong.  And one man’s opinion about blame is not shewn to be wrong simply because it is not shared by other men . . . The conclusion that the learned trial judge reached was one that was open to him.

That is the reasoning of the President –

Whether or not others might reach a different conclusion upon the same facts is not the question.

Now, even ‑ ‑ ‑

McHUGH ACJ:   But the criticism that was made of Edwards v Noble is that the judges were really coming out of an era where factual matters were determined by juries and they were really applying, in effect, the approach in appeals in respect of juries and that Warren v Coombes straightened that out and said this is a true appeal and it is a rehearing.

MR REYNOLDS:   Your Honour, that is a fair analysis, I submit, of Sir Victor Windeyer’s approach.  I concede that.  But the point I am trying to make is that this is an issue which, I submit, this Court does need to look at because it was not properly looked at at all in Warren v Coombes, as Sir Keith Aickin said and he had quite obviously ‑ ‑ ‑

McHUGH ACJ:   I know, but it is 27 years ago and it has been applied, I suppose, thousands of times since then by courts all over the country, including this Court.

MR REYNOLDS:   But I am submitting that it is riven with fundamental error, that is, that it assimilates dealing with the issue of negligence to a position where the Court is drawing an inference of fact from primary fact.  When we are talking about a decision which is akin to the exercise of a discretion which also involves a value judgment, we are then heading into the sorts of principles that your Honours apply in appeals from the exercise of discretion as under House v The King and also the principles which are applied when there is an evaluative judgment such as a decision on appeal from a Family Provision Act case where the question is about adequate provision for proper maintenance or the like.

Now, this Court in those sorts of case does not just say, well, we will sit as if we are the judge at first instance. We will have a look at the primary facts and we will say for ourselves whether it is right or wrong.  For example, Justice Walsh at page 318 of Edwards v Noble talks at, about point 7:

that if a choice has to be made between two conclusions both of which are open on the evidence and which are fairly evenly balanced, then the decision of the trial judge should stand.  The appellate court should not deal with the case as if it were trying it at first instance . . . the judgment of the primary judge . . . ought not to be set aside merely because of a slight preference for a different view upon a question upon which two views are open and as to which there is no definite preponderance of one view over the other.

Our point is, your Honours, that this is an issue which was never properly argued in this case and that there is a real question of principle that underlies it and notwithstanding the status of this decision, your Honours still see in Justice Mason’s judgment, that his Honour talks about whether the conclusion was open.

I would submit that probably the reason why his Honour is doing that is that there are so many cases in this Court, including Fox v Percy, which is in our book, where this Court has said again and again how a trial judge has all sorts of advantages which are difficult even to enumerate in relation to the feel of a case, seeing, for example, how this particular defendant, Mr Youngman, gave his evidence and that it is impossible to tell from the record and impossible even to tell from the judge’s judgment exactly all the factors he took into account in this balancing exercise on negligence.

McHUGH ACJ:   Well, you had better spend some time on whether this is a suitable vehicle.

MR REYNOLDS:   I will move to that, your Honours.  The argument against me, as I understand it ‑ ‑ ‑

McHUGH ACJ:   There is no finding on causation.

MR REYNOLDS:   Well, I would submit there is.  If your Honours go to the application book at page 29 at point 16, line 16, the trial judge says:

the only effective measure –

I underline the word “effective measure” –

facing the defendants was removal –

Now, the word “effective”, I submit, encapsulates within it a finding as to causation.  That is, the only measure was X and it was effective and I so find.  That is the way Justice Mason approached the matter at page 64 at about point 25 and his Honour agreed.

McHUGH ACJ:   Justice Mason’s approach is a pure Edwards v Noble approach, in this case.

MR REYNOLDS:   Or an approach that Justice Hayne has floated as being appropriate.  Again, there are a number of different views that I took your Honours to in Edwards v Noble.  It is not necessarily just a test of whether it is open or reasonably open.  Sir Cyril Walsh took a different view from that.  These are matters that I submit need to be explored and that leave should be granted in due course to reconsider the correctness of Warren v Coombes, not on the broader question about drawing inferences of fact from primary facts, probably an appellate court in most situations is not in the same sort of situation as a trial judge, but I submit that a finding of negligence is in a different category. 

Now, the other matter on appropriate vehicle is this, that my learned friend says that the Warren v Coombes point does not arise. Why? Because the trial judge was considering one case and the Court of Appeal was considering another on negligence. His point, as I understand it, is this. He says the judge considered a case on negligence based on physical removal, that is, that is what the defendants should have done and what Justice Ipp is doing at pages 74 to 75 of the application book is simply reviewing the primary facts. He concedes that, but he says he is dealing with a different case.

Now, my answer to that is that it is abundantly clear that the trial judge was dealing only with a case based on a request to leave.  Now, the key to this, I submit, and this seems to have been overlooked in the Court of Appeal, is that if your Honours go to the application book at page 12 your Honours will see at line 13 that the primary judge purports to summarise the plaintiff’s case against the two defendants.  He says:

The plaintiff’s case against the two defendants is this.

He then sets it out and at the end of that paragraph he says:

there was ample opportunity for the second defendant not to have just spoken to them but at some appropriate stage required them to leave the premises.

That is the plaintiff’s case, required them to leave, not physically remove them.  Now, your Honours, I have checked the transcript – I will leave it up to my learned friend if he wants to dispute this – the transcript of argument at first instance, but on my count that submission was put nine times and on my reading of the transcript no case on physical removal was ever put below to the primary judge.  In the Court of Appeal, either because they were not taken to this or because they overlooked it, this issue does not seem to have been raised in terms of construing this judgment.

Now, if your Honours bear that in mind and then go to the application book at page 29 your Honours will see the key finding there on breach is at line 16 where his Honour says:

In my view, the only effective measure facing the defendants was removal of the young men ‑ ‑ ‑

McHUGH ACJ:   Yes, but his Honour never looked at the question whether or not these men would have obeyed the instructions.

MR REYNOLDS:   Well, your Honour, the difficulty there, if my learned friend wants to submit that, is the word “effective”.  That is the first point.  I

have mentioned that.  Second of all, Justice Mason reviews the facts at about page 64 at about line 25 and agrees that causation was established on the facts, and Justice Ipp at page 73, line 40 indicates that he was inclined to think that causation was established.  So it is a hard road for my learned friend to show that it will be possible for him to upset the finding of causation in this Court when every judge that has looked at it has either said causation is established or that he is inclined to think causation is established. 

The point is, the word “removal” there at page 29, line 16, as a matter of language would encompass the notion of requiring somebody to leave.  That is how, I might add, Justice Mason interpreted the judgment.  That is clear from page 63 at line 44 and from page 62 at line 44 taking steps towards removing the young men.  I would submit the reason why Justice Ipp came to the contrary view, although he conceded that this construction was arguable, was probably because his Honour was not taken to the earlier passages about the submissions that were made and was not taken to the text of the submissions that were made below, which made it abundantly clear that this case was only ever conducted in submissions on the basis of requiring to leave, not physical removal.

If your Honours please, I submit this is an appropriate vehicle to reconsider that aspect of Warren v Coombes and that special leave should be granted.

McHUGH ACJ:   Yes.  Yes, Mr Toner.

MR TONER:   Your Honour, working backwards, we submit that this is not a proper vehicle to reconsider Warren v Coombes.  Warren v Coombes was a case, as your Honour Justice McHugh pointed out, considering the development from jury verdicts to reasoned judge verdicts and section 75 appeals were looked at in that context.  In other words, what were appellate courts to do in an analysis of findings of fact and conclusions from findings of fact?  This is not an Abalos/Devries Case.  This is a Warren v Coombes Case.  There was no dispute in the Court of Appeal about the facts which formed the basis of the conclusions which could be drawn either by the trial judge or by the Court of Appeal. 

We say what occurred here was that on those findings of facts that the Court of Appeal was as well equipped at the trial judge to draw conclusions as to whether negligence was established.  Where we say the trial judge eventually failed is that he did not make a determination as to causation in this case.  It was pointed out by Justice Ipp in his judgment.  We say that when you read that paragraph in relation to his conclusion that causation had not been established, one has to look at it in the context of that paragraph.  So at page 71 of the application book his Honour poses the question:

Who is it that should have removed the men from the premises -

because at first instance the learned trial judge had determined that the failure to remove was the breach of the duty, so that then one turns to the question that Justice Ipp properly posed for himself when analysing that conclusion of the learned trial judge, he then recites what – from the undisputed evidence at paragraphs 48, 49 and 50 as the basis for his conclusion at 51:

Accordingly, the finding that the “removal of the young men” would have been an “effective measure” cannot be sustained.

So it is a proper analysis of established and undisputed facts that the Court of Appeal was entitled to undertake pursuant to the task vested in it by section 75A of the Act.  That is precisely what is permitted by Warren v Coombes, it not being a Devries/Abalos Case, it being a Warren v Coombes style of case where you have undisputed facts which are in analysis and the Court was entitled to do what it did, particularly in the circumstances where it was an appropriate conclusion again on the part of the Court of Appeal that no causation had in fact been found by his Honour at first instance for the Court of Appeal then to undertake the task itself to determine whether in fact there was causation which could establish negligence in the respondents. 

We say that was a task that they undertook, that was the conclusion that they reached.  They were entitled to it and it was a reasonable conclusion from the material that they had before them.  So that we say two things.  One is the task that was undertaken by the Court of Appeal was an appropriate one and a proper one from the undisputed facts and the majority were entitled to conclude as they did.  Secondly, there was error found in any event in this case, namely, the absence of the learned trial judge finding causation which was an error found by the Court of Appeal which facilitated the findings that they eventually did, namely, that in any event there was not causation established by the facts. 

So for those reasons we say it was a proper application of Warren v Coombes in the context of error being found – of no causation being determined by the learned trial judge and if we are wrong about both of those things in the context of the way this case unfolded this is not a proper vehicle for re-examination of Warren v Coombes and, beyond all of that, this Court would be hesitant to launch into a re-examination of Warren v Coombes given that the Courts of Appeal around this country have been applying Warren v Coombes for 25 years plus.

This Court in the last 12 months or so has probably applied Warren v Coombes on at least half a dozen occasions either explicitly or inferentially and we say that albeit there might be some flaws in the way that Warren v Coombes ‑ ‑ ‑

McHUGH ACJ:   Yes, I could not imagine Justice Kirby or Justice Callinan interfering with Warren v Coombes, having regard to the remarks they have made about what Justice Kirby calls the facility of appeal.

MR TONER:   Yes.  So, in our submission, this application ought fail and leave refused.

McHUGH ACJ:   Yes, Mr Reynolds.

MR REYNOLDS:   Your Honour, one can well imagine that Justice Hayne might have an altogether different view.  Also, if I were to take Justice Kirby – this is in our latest written submissions at page 3 at about line 24 – to what he said in a case involving evaluative judgments it may be his Honour might adopt a different view.  What he said there was:

“[u]nless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first -

There is no reason why, I submit, this Court could not reconsider the correctness of Warren v Coombes.  My learned friend does not seem willing to lock horns with the difficulties which are presented by the reasoning in Warren v Coombes.  He says nothing about that at all.  On the question of appropriate vehicle there is an important point ‑ ‑ ‑

McHUGH ACJ:   But why cannot the Court find error if it comes to the conclusion that the decision is wrong?  They do not have to identify error, but they come to the view that there just was no negligence.  That is error, is it not?

MR REYNOLDS:   That is the issue, is whether the advantages of a trial judge in making this evaluative determination on a balancing exercise applying the Shirt calculus, whether or not his advantages are such that one has to superimpose a test such as whether that was reasonably open or a House v The King style test.  It is because of those advantages which an appellate court can never have that this issue needs reconsideration, particularly in the light of the emphasis that has been placed in recent cases on the advantages of a trial judge which can never be fully enumerated.

McHUGH ACJ:   The late Justice Menzies used to say that appeal on damages was an appeal against a discretionary judgment and I think he, from recollection, said the same thing about negligence.  But that view is not shared by many these days.  I think recently when I suggested damages might be a discretionary judgment I think some of the colleagues on the Bench thought that was some form of heresy.

MR REYNOLDS:   Well, however that may be, your Honour, Justice Hayne, we submit, has floated this as an issue which might need to be considered and this is a case which raises it, we submit, fairly and squarely.  So far as paragraph 51 is concerned I need to make this point, that that is, with great respect, utterly irrelevant to the case I am talking about on request to leave and the reason it is is that the Court of Appeal in making that conclusion there at paragraph 51 is dealing with a case based on physical removal which I say was never run below for the reasons that I put earlier.

The case that is considered by Justice Ipp on the last two pages of his judgment is the very case considered by the primary judge.  They both considered the primary facts but the Court of Appeal simply said, “We disagree”.  Your Honours, in my submission, that is an error and that is why Justice Mason dissented because he said that conclusion was open and this case raises that issue fairly and squarely.  If your Honours please.

McHUGH ACJ:   Yes, in this matter the applicant asked the Court to grant special leave to consider whether or not the principles laid down in Warren v Coombes 142 CLR 531 correctly state the approach that an appellate court should take in determining whether or not the decision of a trial judge should be set aside. The applicant would ask the Court to overturn the statements of principle in that case, particularly at pages 551, 552 and 553, and to reinstate the approach that was earlier adopted by this Court in Edwards v Noble.

The question raised is an important question and it may be that, in some future case, leave may be granted to determine the issue.  But we are of the opinion that, whatever test was applied in this case, the applicant would have insufficient prospects of succeeding in the appeal to warrant the grant of leave.  Accordingly, the application for special leave to appeal is refused with costs.

The Court will now adjourn to reconstitute.

AT 12.07 PM THE MATTER WAS CONCLUDED