Bastion Pty Ltd v Cooper

[1990] HCATrans 154

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bl2 of 1990

B e t w e e n -

BASTION PTY LTD

Applicant

and

WALTER JOHN COOPER and

EVA MARGARET COOPER

Respondents

Application for special

leave to appeal

BRENNAN ACJ
DAWSON J

GAUDRON J

Bastion

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 29 JUNE 1990, AT 11.40 AM

Copyright in the High Court of Australia

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MR S.D. RAPOPORT:  If it please the Court, I appear for the

applicant. (instructed by Connolly & Associates)

MRA.W. WARNICK:  May it please the Court, I appear on behalf

of the respondents. (instructed by Charlton Muller

& lones)

BRENNAN ACJ:	"'.(es, Mr Rapoport.
MR RAPOPORT:	Your Honours will see that there are two quite

distinct grounds raised by the applicant and the

first one relates to the admissibility of evidence

and the second one is as to reasons for not accepting

or rejecting the evidence of independent witnesses.

I deal with the first point first. It is clear,

I submit, that that evidence was admitted in the

usual way, in other words without any limitation as

earlier evidence of one of the defendants when he to its use,whereas there was objection taken to the

wished to give that evidence but it was admitted on a

limited basis, in other words, as original evidence

at that point.

When it came to evidence of Tidmarsh there was no

tender of it on a limited basis. There was no admission

of it on a limited basis. And when the trial judge

dealt with it in his judgment he did not deal with it

on any limited basis but addressed himself, in the

judgment, to that exhibit as having been admitted

and, in fact, mentioned her evidence as part of the

narrative of the facts he found.

My submission is, firstly, as I point out in

paragraph 5.1.1:

There is no discretion to admit inadmissible evidence -

that is page 65 - and in any event there was no

application made for any exercise of discretion,

nor was any discretion exercised or appeared to be
exercised in its submission.	The second point is

5.1.2: there was not any limited purpose, it was

admitted fully.

BRENNAN ACJ:	What is the issue that this evidence went to?
MR RAPOPORT:	Your Honour, it goes to the vital question of

when it was that this contract was finally concluded

as distinguised from signed, because it was crucial

to His Honour's final findings that the contract was

concluded prior to a specific date, and that date was

the date on which, as was admitted by the defendants

at that stage, the respondents, a false or misleadine

or wrong statement of profit and loss had been given

or had reached the hands of the applicant.

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So that what His Honour found, in essence, was

that an agreement had been concluded at a point

before that false statement of profit and loss had

been handed over and so the date on which that

agreement had been concluded, as distinguished from

the contract signed, was essential to the finding of

His. Honour because it follows, as I y;ould submit, that

if His Honour had found that that contract had not
been concluded at an earlier time then, because it had
been conceded that the profit and loss statement was

wrong, it must have followed that the applicant would

succeed at the trial.

BRENNAN ACJ: This date was what, 22 October, was it?

MR RAPOPORT:	Yes.
BRENNAN ACJ:	So the question was whether or not there was some

communication on 22 October to the solicitors -

MR RAPOPORT: Well, that really was not the question, Your Honour,

with respect. What was sought to be led was proof by
the side or back door that one of the respondents had
in fact been in communication with the respondents'

solicitors on that date sd as to construct - - -

BRENNAN ACJ: That was the question, whether or not there had

been a communication on that day.

MR RAPOPORT:  With respect, Your Honour, as I understand the

position, whether or not a communication was had on

that date is not relevant because that, of itself,

would be a neutral situation. It is the content of

the conversation or the content of the communication

which, with respect, seems to be important, as

distinguished from the fact of the communication.

BRENNAN ACJ:  Or whether a communication having a certain

content was made on that day.

MR RAPOPORT: That would seem to be important in His Honour's

thinking. It appears that·way, but he has not

expressed himself in those terms.

BRENNAN ACJ: It was not a question,then,of determining

whether the communication was true but whether the

communication was in certain terms.

MR RAPOPORT: With respect, Your Honour, no, I will not accept

that proposition for this reason:	it was of the very
essence of that communication that	its terms be in a
certain - in other words, that the	terms be accepted
as being actual because that would

BRENNAN ACJ:	What do you mean by that?
MR RAPOPORT:	In other words, the words used in the communication

were vital or important.

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BRENNAN ACJ: Quite. In other words, the question is whether

these words were used on that date.

MR RAPOPORT:	It would be a very significant point, yes.
BRENNAN ACJ:	Now, why is not the document admissible for that

purpose, to show whether those words were used on

that_date?

MR RAPOPORT:  Because, Your Honour, if I understand REG V CLUNE

correctly, that is not an admissible way of getting

that document in. It would be, as I understand

for example, RATTEN's case, or SUBRAMANIAM's case,

if the fact of a conversation - just the fact of a

conversation - is relevant, then maybe it is

admissible as original evidence. But if the words

contained in that conversation become of significance,

and they have to be true words, then obviously it is

hearsay. At least that is how I understand - - -

BRENNAN ACJ:  Perhaps the real rule is whether or not the truth

of the words used on that day are relevant. You are

not concerned with the truth of the words used on

that day, you are concerned with whether the words

were truly used on that day.

MR RAPOPORT: Yes, Your Honour, I would have to agree with that

proposition.

BRENNAN ACJ: Well that is a very different proposition, is it

not?

MR RAPOPORT:  Yes, I have to concede that that is right. But

even so, it is my submission that,assuming that to

be the situation - and it does not follow from that

that the evidence should have been allowed to be

admitted on an open basis. It should have been

admitted for a limited purpose; in other words, to

prove, if it later became material in the judges',

decisions,that a conversation took place on that

day in those terms. Whereas in fact there is not a

trace of anything in His Honour's judgment which

suggests that he made limited use of that.

DAWSON J:	But you cow.a not make any other use of it . I mean, it does not really contain any assertion. See, words
can be just as much facts as assertions.
MR RAPOPORT:	Of course.

DAWSON J: And the fact that these words were used is all that is

significant.

MR RAPOPORT: Well, Your Honour, I know this is a very difficult

question and I do not cavil with that proposition - - -

DAWSON J: That is quite an easy thing, really. The fact that

these words were used, the fact, is all that is

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significant and you really cannot draw anything from

the words other than the fact that they were used

which is of any evidentiary value.

MR RAPOPORT:  Even if that be so, Your Honour, I still say,

with respect, that they should have been admitted

for the limited purpose.

BRENNAN ACJ: All right, we understand thatproposition.

MR RAPOPORT:  I do not think I can take that particular point

any further in relation to that question. But the significance of the document goes a little further because it was also the basis of one of the

respondents who gave evidence about the date on which

this agreement was allegedly reached that he based

his recollection of the date on which that took place

on that document. To use his words,"It is in evidence."

'When he was asked how he recalls the date, he says,

"It is in evidence." So that the document having been

admitted for an unlimited purpose, it reached a further
conclusion from that, that is that he could then pin

the date down from the use of that document which was

then available for an unlimited use because, as I

understand the evidence of the respondents, there was

no recollection of a particular date when this

agreement was allegedly concluded other than by

reference to this document.	And secondly, as I recall
the evidence - - -

GAUDRON J:  Was it by reference to the document or by reference

to the event that took place on the 22nd? It was

by reference to the event and then the event can be

dated.

MR RAPOPORT:  Well, that is one way of looking at it. As I

recall the evidence, there was no evidence given

by the respondents that any further negotiations took

place between the parties prior to the conclusion of

this contract.	So that the date becomes very material
in that sense.

BRENNAN ACJ:  Mr Rapoport, I am not wishing to cut you off from

your submissions but, really, these are problems

about the admissibility of a piece of evidence in the

course of an ordinary trial.

MR RAPOPORT:	Indeed.
BRENNAN ACJ:	Do you find any special leave point in this?
MR RAPOPORT:	Your Honour, I have tried to formulate it as best

I could, that it was tendered over objection and

received over objection without any limit as to its

use.

BRENNAN ACJ:  What is the general question of law that is of

importance?

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MR RAPOPORT:  That a trial should be conducted on admissible

evidence.

BRENNAN ACJ:	Nobody would doubt that.
MR RAPOPORT:	I would hope so, Your Honour, but it has gone

astray, the - - -

BRENNAN ACJ:  It does not need a further decision of this

Court to say so.

MR RAPOPORT:  But it has gone astray here, Your Honour, with respect.

I do not think I can extract any more from it than

that.

BRENNAN ACJ:	Yes.
MR RAPOPORT:	Now, if we can come to the second point,

Your Honours. I noticed too, to my consternation,

that at page 64 a double negative has crept in to

submission 3.2, that is at line 19, when only one

was intended.

Now, Your Honours, the submissions of the applicant

are these in relation to that point. There are two

quite separate questions, really:  one is whether

there should be reasons given for rejecting what

appears to be an independent witness's evidence and

the other is whether some evidence given by these

independent witnesses has been overlooked.

As I just pointed out, there was no submission

by my learned friend that these independent witnesses
should be disbelieved and there is nothing in the

learned trial judge's decision which suggests that

any of their evidence is unbelievable, incredible,

unreliable or otherwise to be impugned because of

some bias or prejudice or whatever is the normal

reason why. So, when one looks at it in that light

one has to look then at whether that is a proper way

of going about it when you have two accountants,

the two witnesses concerned, that is, Mr Cordner

and Mr McWilliam, one of whom - Mr Cordner - being

the accountant for the applicant and Mr McWilliam

being engaged on a once-only occasion by the
respondents to produce that particular profit and

loss statement I referred to earlier which formed the very nub of the applicant's case at the trial.

BRENNAN ACJ:  And what is the question of general public importance

here, Mr Rapoport7

MR RAPOPORT:  Your Honour, again, I have tried to formulate

that as best I can and that is in 3.2, that

apparently independent witnesses should be seen by

someone who reads the judgment or who listens to

the decision - the reasons - that important matters

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have not been overlooked. In other words, that the

judge has given fair consideration to the matters

properly put before him and, with respect, I have.::not

been able to find a decision of this Court which

expresses those words. Now, I could be quite wrong

about that but I have not been able to find such a

decision. It may be that it is because it is so

basic that one does not expect to find it expressed

in ?-judgment of this Court.

The conflicts, Your Honour, went to major questions

of credit as I have pointed out at 5.2.2 and those

conflicts went to very important matters. If we can

take Mr Cordner's evidence just briefly: his evidence

was that on 25 October, that is a day - - -

BRENNAN ACJ:  Mr Rapoport, we are really not going to enter upon

the facts of the individual case unless for the

purpose of identifying the nature of the point which

you wish to raise and to establish that it raises

some question of general public importance.

MR RAPOPORT:	Yes. Well, that is really the only reason why I wish to adiress myself to these questions because they
go to the heart of the matter; they go to - - -
BRENNAN ACJ:	They go to the heart of this particular case.
MR RAPOPORT:	Yes, Your Honour.
BRENNAN ACJ:	But the question is whether or not this case raises

any question of general public importance.

MR RAPOPORT: Well, Your Honour, I am sorry but I may have to

repeat myself but, with respect, if independent witnesses,
whose evidence is not suggested as being wrong by the

opposing side are just glossed over, then it may be, as

this Court has held in VOULIS V KOZARY - to which I have

made reference - that something has been overlooked.

A conflict of importance has not been addressed.

BRENNAN ACJ:  Yes.

MR RAPOPORT:  Your Honours, I do not want to labour the point

really but VOULIS V KOZARY is very instructive, and

I do not know whether Your Honours want me to go to

that case.

BRENNAN ACJ:  It is a matter for you what argument you present,

Mr Rapoport.

MR RAPOPORT:  Thank you, Your Honours. Well, maybe I can hand up

a copy of that.

BRENNAN ACJ:	What is this to show?
MR RAPOPORT:	Your Honour, what VOULIS V KOZARY is about is that

although there is a natural reluctance by an appeal

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court to intervene when one of the principal witnesses
in a matter has been disbelieved, nevertheless, when
the record shows that the evidence of an independent

witness has been probably or possibly overlooked,

then the Appeal Court should intervene.

Your Honour, in this case, the evidence which was

judgment of JusticesGibbs and Stephen at page 136	independent came from a bank manager and in the joint
at line 22 or thereabouts, Their Honours said:
The learned trial judge in his careful reasons	for judgment -

et cetera, I will not trouble Your Honours to read

it all. And then we go to a passage on the following

page, 137, at about line 33 which begins:

Mr Justice Holland also seemed to have been nu.ch

impressed - - -

BRENNAN ACJ:  But this is a case of an appeal, I presume, as of

right.

MR RAPOPORT: It was at that time, yes.

BRENNAN ACJ: Well, this is an application for special leave

to appeal.

MR RAPOPORT:  Indeed, Your Honour.

BRENNAN ACJ: Again, let me ask you, what is the question of

general public importance?

MR RAPOPORT:  Your Honour, the question of general public

importance is that a judgment should be seen to be

fair and to address the evidence which is presented

to the court.

BRENNAN ACJ:	Nobody would doubt that proposition.
MR RAPOPORT:	Your Honour, it may be that that is so but to

find it expressed in the words in this Court is

something which I have not been able to find.

BRENNAN ACJ:  Well, perhaps for the very reason that you mentioned,

that it is so basic.

MR RAPOPORT:  Yes, Your Honour. But if that be the correct

principle and it has not been applied, then it is a

question of public importance that it has not been
applied in a case which has gone through the Full

Court of the Supreme Court of Queensland as well and still justice has not been seen to be done if

that is what the test is.

I do not really know that I can assist Your Honours

any further.

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BRENNAN ACJ:  This case does not raise any matter of such

importance as would command the grant of special

leave. The application is therefore refused.

AT 12.02 PM THE MATTER WAS ADJOURNED SINE DIE

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