Brazel v Nichols

[2004] HCATrans 552

[2004] HCATrans 552

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S26 of 2004

B e t w e e n -

IVAN PAUL BRAZEL

Applicant

and

SUZANNE FLORENCE NICHOLS

Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 2004, AT 1.05 PM

Copyright in the High Court of Australia

MR E.G. ROMANIUK:   If it please the Court, I appear for the applicant.  (instructed by Stacks – The Law Firm)

MR K.P. REWELL, SC:   If the Court pleases, I appear with my learned friend, MR J.P. GUIHOT, for the respondent.  (instructed by Vandervords)

KIRBY J:   The Court is going to adjourn for half an hour and we will come back in half an hour and deal with this matter. Is it convenient to you, Mr Romaniuk and Mr Rewell, to come back at 1.35?

MR ROMANIUK:   Yes, your Honour.

MR REWELL:   Yes, your Honour.

KIRBY J:   Very well, that is what we will do. 

AT 1.06 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 1.38 PM:

KIRBY J:   Yes, Mr Romaniuk.

MR ROMANIUK:   Thank you, your Honour.  The special leave question in this matter arises in the context of the right to cross-examine, and it has essentially two components, your Honours.  The first is the admissibility of an expert opinion where that expert is being required for cross-examination, and the expert does not attend for the purposes of cross-examination.  The second component is the use or the ‑ ‑ ‑

CALLINAN J:   Can I just ask you some questions first to get clear in my mind what happened, Mr Romaniuk.  What do the rules require?  Just tell me that briefly in relation to the requirement that a person attend as a witness.

MR ROMANIUK:   Yes, your Honour.  There is a supplementary volume of materials and at page 55 in the bottom middle of the page of that bundle, we have set out the rule from the District Court Rules.  But essentially in answer to your Honour’s question, the party who requests the witness ‑ ‑ ‑

CALLINAN J:   What happened?  He was an expert for the defence, is that right?

MR ROMANIUK:   He was.

CALLINAN J:   And you said you would require him for cross examination?

MR ROMANIUK:   Cross-examination.

CALLINAN J:   Did you give your requisition within time?

MR ROMANIUK:   We did.

CALLINAN J:   Right.  How long before the trial was that in fact?

MR ROMANIUK:   We served a subpoena on 29 July.

CALLINAN J:   And the trial started when?

MR ROMANIUK:   On 28 October.

CALLINAN J:   So you served your subpoena three months ahead of the trial, is that right?

MR ROMANIUK:   Sorry, on 9 July, yes. 

CALLINAN J:   So it is about three months aheads, so there was three months notice to the witness that he would be ‑ ‑ ‑

KIRBY J:   That notice of the fact that a trial was coming up or notice of a particular day where the witness was required?

MR ROMANIUK:   Your Honours, what I have done is I have prepared a document that deals with a select narrative of factual matters.  If I could just make that available.  I have provided a copy to Mr Rewell. 

CALLINAN J:   We will look at that, but if I can just continue asking to get clear in my mind what happened.  So about three months ahead of the trial he is subpoenaed.  Does the subpoena nominate a date or a week in which the trial is going to take place?

MR ROMANIUK:   It does, but he ‑ ‑ ‑

CALLINAN J:   Do you have a set date; it is not a running list?

MR ROMANIUK:   No, it was a running list but there was correspondence by the plaintiff’s solicitor with the doctors advising him of the fact that it was in a running list and that he was not required on the first day, that he should contact the applicant’s solicitor ‑ ‑ ‑

CALLINAN J:   Anyway, he has notice of the general period within which ‑ ‑ ‑

MR ROMANIUK:   Yes.

CALLINAN J:    ‑ ‑ ‑or fairly close – good notice of the relatively restricted period during which he will be required.

MR ROMANIUK:   He has.  I understand that the sittings was a two-week sittings.

CALLINAN J:   And when did you first learn that he was not going to be there?  He went to New York, did he not, is that right?

MR ROMANIUK:   He went overseas for an extended period and he was first in Paris and then New York.

CALLINAN J:   Do we know when he left for overseas?

MR ROMANIUK:   We found out on 4 October.

CALLINAN J:   Which is how long before the trial?

MR ROMANIUK:   28 minus 4 is 24 days.

CALLINAN J:   So he did not make any communication with you to tell you before then, or to tell the other side who in turn could then tell you?

MR ROMANIUK:   No, the applicant’s solicitor had made telephone contact on or about 4 October which was – they received some information which was effectively that he had gone overseas until 6 November.

KIRBY J:   And this was a doctor for the respondent, was it not?

MR ROMANIUK:   It was.

KIRBY J:   But under the rules you had – they had exchanged medical reports and you had it?

MR ROMANIUK:   The medical reports had been exchanged, and the rules in the District Court had been amended to require the party who wants to cross-examine to – the word is “procure” the attendance.  A subpoena was issued and then these issues raised.

CALLINAN J:   If I can just continue to ask you some questions about it.  So was there any suggestion that the trial might then be adjourned when you learnt that he would not be in Australia?

MR ROMANIUK:   I think the short answer is yes, there was a suggestion.  The position taken by the applicant at trial was that they did not seek an adjournment.

CALLINAN J:   But what right does a witness have not to be present when he is being subpoenaed?

MR ROMANIUK:   Very little right, we would say, your Honour.

CALLINAN J:   But you go into the trial.  He may have told you or you may have learnt that he was not going to be available, but there has been no application on his behalf to have him excused.

MR ROMANIUK:   At that stage he is already overseas, so a procedure such as issuing a bench warrant would be ‑ ‑ ‑

KIRBY J:   Yes, but you have to look at what the practical consequence of it was.  You knew he was in New York, I think, at the relevant time and you were given an opportunity to have the matter adjourned, but you did not take that opportunity.

MR ROMANIUK:   That is correct, your Honour.

KIRBY J:   So how can you come back and complain about it to the High Court of Australia?

MR ROMANIUK:   In these circumstances, your Honour:  at that stage, the plaintiff having made the requirement for cross-examination, was prima facie entitled to take the view that if the witness did not attend, that evidence would not be relied upon, and there was correspondence to the respondent’s solicitor to the effect saying that if this witness does not attend, we assume you will not rely on it.  As the trial ‑ ‑ ‑

KIRBY J:   But did the respondent ever agree to that?

MR ROMANIUK:   Well, it was the ‑ ‑ ‑

KIRBY J:   Surely there is a power in the judge to admit it if it was important evidence.

MR ROMANIUK:   There is, and that is incorporated in the rules.  But what had happened in the actual course of the trial was that both parties had made requirements for various witnesses to be cross-examined, and as those issues were sorted out, in effect everyone saying, “We don’t require that witness or we don’t require that witness”, the only witness who was required was the doctor who did not attend.  But by that stage, the matter was well and truly into hearing, and it was at least I think the second or third day of the hearing.

CALLINAN J:   Could I ask you this.  If you had had great forensic success with the doctor in your cross-examination, how much extra in damages do you think you might have got?

MR ROMANIUK:   Well, we would have done substantially better because the finding that her Honour the trial judge made was that there was in effect, a novus actus by what was described as the hammering incident.  So the neck injury that ultimately came to an operation was completely excluded from any damages entitlement. 

Your Honours, I think I have to make good a fundamental proposition that the failure to cross-examine Dr Mellick was of some substance.  In this particular case it very much was because the trial judge actually misused the evidence of the doctor, and that misuse was not ‑ ‑ ‑

CALLINAN J:   Where do we find that?

MR ROMANIUK:   Again in my summary document.  If I can just say it in broad terms first, Dr Mellick said first that in his opinion the plaintiff’s neck condition that led to the operation had a component of pre‑existing degenerative change.  He then was given further materials and produced a later report where he said, “I have examined the further materials and I am telling you that there is no element of trauma causing disc protrusion.  My opinion is that it is purely a degenerative change and it does not relate in any way to a traumatic incident”.  So that was Dr Mellick’s opinion in fact.  Her Honour used Dr Mellick’s opinion untested and unexplained, in effect, in cross‑examination to find that the hammer incident was the traumatic incident that caused the need for the operation.

CALLINAN J:   But assuming Dr Mellick to be right, could there have been any other explanation?

MR ROMANIUK:   Assuming Dr Mellick to be right that there was no – yes, because if you put Dr Mellick to the one side, in the respondent’s own medical opinion camp was an opinion that attributed the disc protrusion and therefore the operation to the motor vehicle accident, and that was Dr Sekel.

Dr Sekel had done a preliminary opinion and then had been given some further material that included some clinical notes and the ambulance records, and at the time of the accident the plaintiff had reported to the ambulance officer, “I’ve got no neck complaint”.  He then related, as is on the first page of that summary which I have highlighted in bold, underlined, just indicating how those neck complaints started to emerge.

He went to his GP, he went to physiotherapy and then, after having gone to physiotherapy for a few sessions, he had this incident where he was hammering the nail which is set out in the transcript extract at the bottom of page 1.  So in the absence of Dr Mellick, to answer your Honour’s direct question, the fact at issue was the competition between 100 kilometre per hour motor vehicle whiplash-style neck injury giving rise to a protrusion causing an operation, or hammering a nail into a shelf. 

Dr Mellick aside, your Honours, in that forensic contest, you have Dr Sekel who, although he did not have the complete history, he had the initial reports about no neck pain and little bits of neck pain, but he still made the causal connection, and you have this gentleman whose whole life before the accident was that of a labourer, so he did hammering work, sawing work.  He had built his own house, he had put his own pool in.  He did all those types of work that were the same category or nature as hammering a nail into a shelf.

KIRBY J:   Now, you are being very persuasive but we are not a jury, we are not sitting here deciding this case on its merits.

MR ROMANIUK:   But all, your Honour ‑ ‑ ‑

KIRBY J:   You have to establish error in a matter of practice and procedure that it is the hardest thing to get - before lunch we refused special leave in a case that involved $800 million.  Now, I am not saying that the upholding of justice in the trial courts is much more valuable than $800 million, but it is still – you have to show something special or unusual.

MR ROMANIUK:   Well, I do, and I want to show these matters.  In the Court of Appeal, this point was one of the grounds of appeal and Justice Tobias delivered the reasons with whom everyone agreed.  At 119 to 120 ‑ ‑ ‑

KIRBY J:   Everyone except the applicant.

MR ROMANIUK:   At 119 to 120, his Honour at paragraph 70 says:

This case illustrates in stark terms the difficulties now commonly experienced in the District Court of accepting into evidence –

without cross-examination. 

CALLINAN J:   I have spoken about it in a judgment.  I do not know how judges can do it, but that is a reason for the parties being more insistent upon an adjournment if it is important.

MR ROMANIUK:   With that we agree entirely, but it is a fundamental issue as to the conduct of the trial.  But his Honour Justice Tobias, having – the Court of Appeal did not deal with this issue at all in their reasons; it is just not dealt with.  It went to the Court of Appeal.  They had not done anything with this point, so the Court of Appeal has not expressed a view one way or the other.  But ‑ ‑ ‑

KIRBY J:   Which point, do you say?

MR ROMANIUK:   The admission of the report simpliciter or how it could be used.  What happened, your Honours is that ultimately the trial judge misused the unchallenged evidence because ‑ ‑ ‑

CALLINAN J:   But that was the risk when it was not challenged.

MR ROMANIUK:   But it was sought to be challenged.

CALLINAN J:   If it was as important as that, remotely as important as you are now telling us it is - and I can see why you might do that - then there should have been an application for an adjournment. 

KIRBY J:   And instead of that, you took an assumption, rather bold I think in the circumstances, that the judge would reject it or would not act on it.  You cannot do that in a trial.

CALLINAN J:   And it is a huge risk really.  It is all very well to say on the one hand that you have not had an opportunity of challenging it, but the judge’s thinking might be these parties do not even want an adjournment.  They must not have the means of refuting what is in their report.

MR ROMANIUK:   Well, if her Honour had ‑ ‑ ‑

CALLINAN J:   Or they do not want to risk a cross-examination, which might reinforce the expert opinion.

MR ROMANIUK:   Can I respond to that in two respects.  The first is that it was the defendant’s evidential case that was being tendered.  If the evidence was inadmissible ‑ ‑ ‑

CALLINAN J:   But you let it through.

MR ROMANIUK:   No, we objected to it.  We objected to ‑ ‑ ‑

CALLINAN J:   Well yes, but you did not ask for an adjournment.

MR ROMANIUK:   If it had been rejected as it should have been because of the non-attendance, if there was an adjournment application to be made, it was not on our ‑ ‑ ‑

KIRBY J:   Yes, we know all that, Mr Romaniuk, but you objected and the judge said that she was minded to allow it and allowed it.  Then you were at the moment of truth.  You had to either ask for an adjournment to deal with it or you had to go on and take your chances.

MR ROMANIUK:   And legal representatives then appearing did not seek that adjournment on behalf of this client, but ‑ ‑ ‑

KIRBY J:   I do not see how you can ask the High Court of Australia to fix that up.  These sorts of things are decided every day.

CALLINAN J:   And there are all sorts of forensic decisions being made.  It may have been that the state of the evidence and the atmosphere in the court there was one that counsel representing the plaintiff thought that, “I don’t want to take a chance.  The matter’s finely balanced.  Do I get the doctor in a make a big point about an adjournment?  It might all turn out, it might all go even sour on us”.  We just do not know those things.

MR ROMANIUK:   I accept in general what your Honour says, but if that tactical process was going forward in the mind, what happened here was that the trial judge actually then misused the evidence, and this is a point ‑ ‑ ‑

CALLINAN J:   But how can you say the trial judge misused the evidence?

MR ROMANIUK:   Because the trial judge uses the evidence of Dr Mellick to say that the hammer incident caused the protrusion.  Dr Mellick never said that.  In fact, he said no trauma was involved in the incident, so ‑ ‑ ‑

CALLINAN J:   Well, that was a possible contradiction between Dr Mellick’s evidence and other evidence in the case.

MR ROMANIUK:   No, with respect, your Honour, this is the fundamental point.  There is no evidence in this case that the hammer incident was the trauma that caused the disc protrusion.  There was only evidence that it was the motor car accident which included Dr Sekel, tendered by the respondent, and Dr Mellick actually said “No trauma”.  He said simply “degenerative”.  So if that forensic contest was going on in the then representative’s mind, that context was arising when Dr Mellick’s opinion really did not go to the hammer incident. 

That is why the failure to cross-examine was so fundamental and so important, because it would have become apparent from cross-examining Dr Mellick that his opinion in fact was very much that it was degenerative only.  And so you would remove the hammer incident from the causation context, because everyone else would be choosing between degenerative only and motor car only. 

The error of the Court of Appeal is that they have accepted prima facie that her Honour had correctly interpreted Dr Mellick’s evidence when it just did not occur.  It is a matter of importance because it brings up the point that your Honour referred to before about proper management of these type of trials and we cannot determine these type of issues by mutual tender of reports.  We sought the right to cross-examine and it was denied and, as things have turned out, it has had a consequence that is utterly catastrophic to the plaintiff’s claim.  The causation has been denied, so no consequences that flow from the neck operation were included.

KIRBY J:   Once the report got in, did that justify the Court of Appeal’s acceptance that the trial judge had cut the plaintiff off from entitlements before the incident?

MR ROMANIUK:   No, it did not.  It did not because Dr Mellick’s report actually does not go to that issue.

KIRBY J:   Well, that therefore is a criticism of the judge’s interpretation of the evidence that she admitted.

MR ROMANIUK:   It is.

KIRBY J:   But that is purely a factual question.  If we do not allow large corporations to challenge $800 million of taxable income, it is hard to see how we could justify granting special leave in this case to challenge this matter.  It is purely a factual assessment.

MR ROMANIUK:   No entirely, your Honour, because Justice McHugh in a case called R v P said that you looked for this concept of miscarriage of justice as whether there is a departure from the rules that govern judicial procedures to make the decision of the court below not a decision in the judicial sense. 

CALLINAN J:   Unfortunately, there is a departure and I am not too happy about a lot of these case management rules.  I think that implicit in a lot of them is the possibility of denial of natural justice, but they are rules and they are within the rule-making power of the legislature, and I think that these things can and do happen.  Unfortunately, that is the regime.

MR ROMANIUK:   Her Honour’s curative when it went in was to say, “I’ll give some latitude in addresses”.  Latitude in addresses does not and cannot ‑ ‑ ‑

CALLINAN J:   Why was there not an application at that stage?  That to me, with all the advantages of hindsight as a trial lawyer, would send off all sorts of alarm bells.

MR ROMANIUK:   It would, but it would be ‑ ‑ ‑

CALLINAN J:   I mean, what latitude could a judge give?  I cannot think of anything that a judge could in all propriety do ‑ ‑ ‑

MR ROMANIUK:   We are in absolute heated agreement ‑ ‑ ‑

KIRBY J:   Mr Romaniuk, that is why barristers are paid big money and that is why they have at the moment immunity from suit.

MR ROMANIUK:   What happened here, your Honours, as the red button activates, is that her Honour took the unchallenged evidence and gave it a purpose or an effect that it did not have, and that is where the failure to cross-examine compromised the entire judicial process in this case.

KIRBY J:   Yes.

MR ROMANIUK:   If it please the Court.

KIRBY J:   Yes.  Well what do you say, Mr Rewell?

MR REWELL:   Well your Honours, there is a fairly straightforward answer to this application.  The District Court Rules in this State, unlike the Supreme Court Rules, require a party who wishes to cross-examine an expert to procure the attendance of the expert.

CALLINAN J:   But I find that most unpersuasive.  If you subpoena somebody and that person then leaves the country, I do not think you can say that the person getting the subpoena has failed to procure, and he is in disobedience of a court order and in contempt of court.

MR REWELL:   Your Honour is of course correct, and nor did the trial judge here suggest that there was any fault on the part of the applicant or the respondent.

CALLINAN J:   It is not a question of fault.  The man was in contempt of court and everything that could possibly be done in the way of procuring his attendance had been done. 

MR REWELL:   That is absolutely correct, your Honour, and the trial judge sought to remedy that matter by offering to the applicant an adjournment.  Nothing could be done to bring the doctor to court; he was in New York.

CALLINAN J:   That is your best point, I think.  But what about the other point that the judge may have misused the evidence?

MR REWELL:   That, with respect, is incorrect.  But may I just finish this point in a moment or two, because it will only take that long, your Honour.  On page 137 of the application book, one can see exactly what the trial judge said about adjournments.  It is at about line 43 near the bottom of the page.  At the start of line 40 your Honours can see what the difficulty confronting the trial judge was.  The judge made it plain that she would grant an adjournment if it was sought, and undoubtedly there would have been no adverse consequences as to costs, because her Honour had made ‑ ‑ ‑

CALLINAN J:   We know that.  What do you say about the misuse of the evidence though?

KIRBY J:   You are in front on that point.

MR REWELL:   Thank you, your Honour.  The way the evidence was used was this, and the Court of Appeal dealt with this very thoroughly.  The applicant had suffered a motor vehicle accident on 19 August 1999.  He described symptoms in his neck following that accident.  Now, it is important to note immediately that the applicant’s credit was challenged considerably in this trial, and the trial judge found that the applicant’s credit had been destroyed completely.  She did not believe him and made it plain that she believed nothing that he had said other than that which was corroborated by contemporaneous objective evidence. 

There was evidence contrary to that given by the applicant that the applicant’s neck condition improved over the two weeks following his motor accident, only to worsen severely whilst he was hammering together a shelf for a child.  Ultimately, in cross-examination the applicant himself agreed with that and it is set out at page 110 of the application book.  In paragraph 40 of the judgment of the Court of Appeal, as their Honours point out:

the appellant ultimately acceded to what was being put to him with respect to the effect of the hammer incident –

namely, that his neck had been getting better after the motor accident until the hammer incident occurred, and then his neck got very much worse and never improved again.

CALLINAN J:   You say there was abundant evidence to support a finding that perhaps if it was not degenerative, then it was the hammer, but on no view was it the car.

MR REWELL:   That is right.  The way her Honour approached it was this, and this brings in what her Honour did with Dr Mellick.  Dr Mellick came to the conclusion that prior to the motor accident, the applicant had suffered degenerative changes in his neck which made him obviously vulnerable to future injury to the neck.  There was then the motor accident and the history of improvement in the condition of the neck.

CALLINAN J:   And did Dr Mellick know about the hammer incident?

MR REWELL:   No.

CALLINAN J:   No.

MR REWELL:   I was about to come to that point.

CALLINAN J:   Well, that is the point.

MR REWELL:   Nobody knew about the hammer incident except a physiotherapist, and that was how it came to light in the report of the physio, but not a single doctor on either side had been informed of the hammer incident, so her Honour was left with a difficult position, and ‑ ‑ ‑

KIRBY J:   I think we have heard enough,  Mr Rewell.

MR REWELL:   Thank you.

KIRBY J:   Yes, Mr Romaniuk, anything in reply?  There is no need for you to smile; there is still a chance.

MR ROMANIUK:   Well, let me propose this to try and bring that chance to fruition.  The critical fact was a T-boning 100 kilometre motor vehicle accident.

CALLINAN J:   We know that, that is a good jury sort of opening, but it does not help ‑ ‑ ‑

MR ROMANIUK:   As compared to the hammering.

CALLINAN J:   Well, it does not help any of that.  That is a matter for the judge hearing all the evidence to weigh up.

KIRBY J:   We are impervious to merits up here.

MR ROMANIUK:   The correlation of symptoms to injury does not work for a disc protrusion.  I mean, that just does not work.

CALLINAN J:   Judges have to do it, judges have to do it all the time.  I do not suggest that it is easy and that is why you have the benefit of Watts v Rake and Purkess v Crittenden, but judges do it.

MR ROMANIUK:   But her Honour’s finding, which she relied on Dr Mellick incorrectly understood, was really to put symptoms as injury.  Once Dr Mellick was not in the picture as he should not have been, the competition was for ‑ ‑ ‑

CALLINAN J:   Your client kept him out of the picture in relation to the hammer incident.

MR ROMANIUK:   It was my client who told the physiotherapist about the hammer incident.  The way it emerged ‑ ‑ ‑

KIRBY J:   In the way of these things, your client would probably say this was a trivial incident of life, it was just ‑ ‑ ‑

MR ROMANIUK:   That is exactly what he said ‑ ‑ ‑

KIRBY J:   “Nothing would have worried me before, but now I’m in a bad way and every trivial thing” – I have heard hundred of these cases, I have been in hundreds of them.

MR ROMANIUK:   The plaintiff, as with every other medico, associated the degeneration of the neck condition with the 100 kilometre per hour

traumatic incident.  Although he had told his own physio, and that is where the history came from and it was not hidden, no one ever thought of it again.

CALLINAN J:   I was not suggesting any conscious deception, Mr Romaniuk, but nobody really knows, perhaps except the trial judge, what all the possible candidates for the particular injury are until all the evidence is in, and that is another reason why it is very risky to let something go which could have been pursued ‑ ‑ ‑

MR ROMANIUK:   It is, it was a risk taken, but the use of the evidence was far beyond where it properly ‑ ‑ ‑

CALLINAN J:   I am not persuaded about that.  It seems to me that the risk, even if you were right about that, even if you were right that the evidence may have been used inappropriately, was a risk that should have been apparent.

MR ROMANIUK:   Accepting all of that on the individual justice of the case, the Court of Appeal having not dealt with that proposition and explored the reception and the use of that evidence, there is a disturbing element to the review of the trial judge’s opinion, and there is an impact.  It is not merely that Dr Mellick’s evidence should not have been in there, but it had not effect anyway.  His evidence was crucial and it was relied upon to sever a causal connection.  If it please the Court.

KIRBY J:   This application concerns a dispute about the procedures followed by a judge of the District Court of New South Wales (Judge Gibb) in the conduct of a trial of the applicant’s claim of negligence against the respondent.

The judge admitted into evidence a medical report tendered by the respondent.  This was done despite the fact that the medical practitioner concerned, although subpoenaed to give evidence in the trial in accordance with Part 28 Rule 9 of the District Court Rules of New South Wales, did not appear.  It was known to both parties that he was in New York at the time.  The applicant says that the report should not have been admitted or, if received in evidence, that the trial judge was obliged to give him an opportunity to address matters appearing in the report before relying on the report for conclusions adverse to the applicant.  The applicant also says that the trial judge misused the evidence in the report.

This Court has said many times that it will not ordinarily review discretionary decisions on matters of practice and procedure governing the conduct of trials.  Such matters can often be decided either way.  A large leeway must therefore be allowed to trial judges.  There is no question of law, or of public importance, raised by the application of the District Court Rules or the decision made by the trial judge in this case.  It is, of course, important to the applicant.  However, it is not of larger general importance.

Accordingly, the matter comes down to whether there was a miscarriage of justice uncorrected by the Court of Appeal, which this Court should intervene to repair.  A significant difficulty for the applicant is that his representative at the trial did not apply for an adjournment when it was known that the witness was overseas and that the judge was inclined to receive the report.  The applicant says that he was entitled to rely on the exercise of the trial judge’s discretion to exclude the evidence.  However, this was a bold assumption and it was open to the primary judge to take a different view once the report was before her.  Further, once that report was received, it was for the applicant’s representative to address the judge on all matters relevant to the interpretation, use and weight of the contents of the report.  The primary judge was not obliged to give the applicant or his representatives special notification of the way that she might use the report in her reasoning.  Nor are we convinced that the primary judge erred in the use of the evidence, once it was before her.

The Court of Appeal made no error in finding that error in this respect had not been demonstrated.  It follows that despite the persuasive submissions of Mr Romaniuk for the applicant, we are not convinced that the matter is one suitable for the grant of special leave.  Special leave is therefore refused.  It must be refused with costs.

AT 2.12 PM THE MATTER WAS CONCLUDED