Broadlands (Properties) & Ors v Burns & Burns and Ors

[1998] HCATrans 24

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S66 of 1997

B e t w e e n -

BROADLANDS (PROPERTIES) PTY LIMITED and VICTOR VIRGONA and MARIA VIRGONA

Applicants

and

BURNS & BURNS PTY LIMITED and RICHARD BURNS and JULIA BURNS

Respondents

Application for special leave to appeal

BRENNAN CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 1998, AT 9.33 AM

Copyright in the High Court of Australia

MR P. BYRNE, SC:   May it please the Court, I appear for the applicants with my learned friend, MR G.R. HEATHCOTE.  (instructed by Baker Ryrie Rickards Titmarsh)

MR J.R. SACKAR, QC:  If the Court pleases, I appear for the respondents, with MR M.T. McCULLOCH.  (instructed by Minter Ellison)

BRENNAN CJ:   Mr Byrne.

MR BYRNE:   Your Honours, this application raises an issue concerning the so-called doctrine of recent invention, that rule of evidence which permits a prior consistent statement made by a witness to be admitted in order to rebut a suggestion of recent invention.

Your Honours, the issue that falls to be determined on this application is effectively contained in a statement made as long ago as 1918 by Lord Justice Ronan in the Court of Appeal in Ireland.  What his Lordship there said in the case of Flanagan v Fahy is reproduced in the judgment of Justice Windeyer in this Court in The Nominal Defendant v Clements 104 CLR 476. The particular passage to which I wish to take your Honours appears in Justice Windeyer’s judgment at page 493 at approximately point 6 on that page. The question is there put by his Lordship, quoted by Justice Windeyer, in these terms:

“if a witness is charged with having invented and fabricated a story in consequence of a certain transaction, is it not open to him to show that this charge is false by proving that he had told the story long before the transaction in question?  Surely there can be no doubt that in any rational system of law he must be allowed to do so”.

Your Honours, the situation that occurred - - -

BRENNAN CJ:   Is that proposition in doubt?

MR BYRNE:   That proposition, in our submission, your Honours, should not be in doubt although it is, in our submission, placed in doubt by the trial proceedings that occurred in this case and by the judgment of the Full Court.

BRENNAN CJ:   In other words, it is a question of whether or not the principle which is undoubted was correctly applied in the instant case after a trial that went for 35 days.

MR BYRNE:   Your Honour, it is, in part, but it is, in our submission, more than that.  The manner in which the Full Court dealt with this matter, in our submission, raises a real question as to whether the Full Court has, in effect, altered what was regarded as being perhaps a well-established rule in the rules of evidence.

Might I perhaps take your Honours directly to the application book to explain that submission that I have just made?  Your Honours, the judgment of the Full Court appears in the application book at page 37 and following.  In the judgment of the presiding judge, which commences at page 37, there is extensive reference to this Court's decision in The Nominal Defendant v Clements which it seems to be understood is the leading case in this particular area. Having referred to the judgment of the majority which was written by Chief Justice Dixon at page 39, and then to the individual judgments of Justice Menzies and Justice Windeyer at page 40 of the application book, the presiding judge said, at page 40, line 2 - and these are the words that I ask the Court to have particular regard to:

There must be a specific allegation of recent invention, in respect of a specific statement.  A mere general allegation about dishonest motives in commencing proceedings is not enough. 

His Honour then said, at about point 6 on the page, immediately following the quote from Justice Windeyer:

The suggestion put in the cross-examination in this case does not go anywhere near meeting the requirements stipulated in Clements. 

Your Honours, if I can take your Honours directly to the cross‑examination in question so that it might be determined whether that approach by the presiding judge, which was agreed in by Mr Justice Hill and Justice Sackville, was correct.  It is most usefully, perhaps, your Honours, set out at page 2 of the application book.  This was the cross‑examination of one of the applicants in these proceedings, the applicant, Mrs Virgona, upon whom the learned trial judge based most of the reasons for his decision.  At the very top of the page, the first question put by senior counsel to the applicant was in these terms:

You see, what I want to suggest to you, madam, is that this whole case has been devised by you and your husband out of an act of revenge on the part of the Burns -

the respondents in these proceedings -

for what you regard as having the hide to make a claim for commission, is that not the fact?

That claim for commission, it was common ground, was first raised by the Burns, the respondents, on 19 June 1992. 

There was evidence available, and it was sought to be tendered in re‑examination of the applicant, that as far back as 14 February 1990 or on a date shortly after that date she had made a statement to the solicitor acting for her in the real estate transaction effectively in the same terms as the allegation which had been put by her in these proceedings.  That allegation was directly suggested to her was a recent invention, something which occurred some time after 19 June 1992, and for which a specific motive was identified.  In our submission, there could hardly be a clearer case of a suggestion of recent invention.  Not only was the date on which the version was allegedly concocted nominated but also the motive for it.

The evidence which was available to rebut that was evidence from a compelling source, a solicitor, and it related to events which occurred very close, almost contemporaneously, with the events which were the subject of the proceedings.

BRENNAN CJ:   Now, Mr Byrne, let it be assumed that you were able to demonstrate quite clearly that their Honours were in error in their assessment of the nature of the cross-examination.  What is the special leave point?

MR BYRNE:   Your Honours, the special leave point in this application is that there has been in this case a misapplication of the so-called doctrine of recent invention, a misapplication in circumstances where, in our submission, both the trial judge and - although it should be said that the trial judge did not give any reasons for rejecting the evidence which was tendered in rebuttal ‑ but the reasons given by the Full Court, in our submission, disclose a misunderstanding of the doctrine of recent invention.

That is an important issue in the administration of justice generally.  It is a question which arises frequently in the course of trials, both civil and criminal, and it is apparently, in the light of some of the authorities to which this honourable Court has been referred in the submissions for the applicants, a matter which appears to be the subject of some dispute between various jurisdictions.

BRENNAN CJ:   If you can make that point good you might have a special leave point.  But if it is a question of whether or not Clements was correctly applied to a piece of evidence that falls within a great mass of evidence, and the trial judge has made a finding on credibility which is based upon the entirety of the evidence including the evidence given by other witnesses, it is a very difficult task for you to establish a special leave point.

MR BYRNE:   Your Honour, it is a matter where it is not simply a question of a piece of evidence within, as your Honour the Chief Justice has said, a general mass of evidence.   What happened in this case was that the general attack was made upon the applicants that their version was recently invented by them.  They sought to tender evidence to rebut that suggestion.  Judgment was reserved in the matter for a period of over a year and when judgment was ultimately delivered by the learned trial judge, he based his finding that the action brought by the applicant should fail upon the basis that their case was one which had been recently invented.

BRENNAN CJ:   Recently?  Where do you derive that from?

MR BYRNE:   Your Honour, it is contained in three separate parts of the judgment of the learned trial judge.  If I could take your Honours to the application book, first of all, at page 17, at about point 8.  What the learned trial judge there said was, in relation to the applicant, Mrs Virgona, she:

replied at length

to a letter written by the respondents -

on 13 June.  The tone of Mrs Virgona's letter strikes me as triumphalist, rather than accusatory.  Yet it is significant that, at the same time as she expressed her belief that “there are no buyers in our price bracket looking to live on the upper north shore”, Mrs Virgona made no complaint about either the market prices given by Mr and Mrs Burns for 10 Water Street or the “inflated” purchase price for 20 Water Street -

Now, that was a letter that was written on 13 June, the suggestion there being that if this complaint had existed then it would have been expected to have been mentioned by her, but there was evidence to establish from a credible source that as far back as 14 February or very close to that date she had, in effect, made the statement which was consistent with the case which she was now putting.

Your Honours, the further matter, and perhaps the most important matter for the purpose of the judgment made by the learned trial judge, was in these terms, and I take your Honours to page 22 of the application book, the last paragraph.  His Honour says this:

As to the contents of the conversations, this is a case where there is a direct conflict of evidence and I regret to say, that, in my opinion, there is no real possibility of an honest mistake.

And these are the crucial words, with respect:

I have concluded that Mr and Mrs Virgona are not merely mistaken, but have deliberately invented their evidence.

The further statement which is of significance in his Honour’s reasons for judgment appears at page 24 of the application book and in the second full paragraph there where his Honour says:

Mrs Virgona’s letter of 13 June 1990 is most significant.

And by that he means, quite clearly, “most significant for the purpose of the decision that I am called upon to make.”  He again refers to the letter that he had earlier referred to at page 17 to which I have taken your Honours, and he says this in the last five lines of the page:

Had Mr and Mrs Burns made the statements attributed to them by the Virgonas, this -

that is the letter of 13 June 1990 -

would have been the occasion to mention them at the very time an entirely different state of the market for expensive properties in Wahroonga had been starkly revealed.

BRENNAN CJ:   Go back to page 23 for a moment; the second line:

She was detained in the witness box for a very long time on account of her refusal to acknowledge the logical inferences available from other persons’ notes of conversations with her and from documents in her own hand.

I mean, this was a case which concerned the value of property; an allegation in respect of a representation of the value of property to owners who were conscious of what they thought the property to be worth and his Honour has obviously assessed this in the context of an enormous volume of evidence and come to the conclusion to which you draw attention.

MR BYRNE:   Yes, your Honour.

BRENNAN CJ:   To say that that was based, as it were, on the fact that there was recent allegation put to the witness that was not allowed to be rebutted is really stretching it a fair way, I would have thought.

MR BYRNE:   With respect, your Honour, the learned trial judge used words such as “significant” and “most significant” on only two occasions; one for each phrase, and both of those related to the letter of 13 June 1990 which, had the opportunity been given to the applicants, could have been rebutted by the admission of the crucial evidence that in fact Mrs Virgona had made consistent statements at or about the time of the events in question.

The way in which these proceedings were determined was that the learned trial judge said, “Look, I’m satisfied that these people have, as was the case for the respondents, made this up”, but he did not permit the applicants to call, as they were entitled to do, all of the evidence that was relevant to that determination.  The evidence that is the subject of challenge in this application was evidence of crucial importance.

HAYNE J:   But that suggests that any allegation of deliberate falsehood entitles the proof of every prior consistent statement a witness has made.

MR BYRNE:   No, I would not, with respect, your Honour, say that.  This was not an allegation of deliberate falsehood put in general terms.  It was a specific allegation that there was an occasion in time which motivated - and the specific motivation was cited as being revenge - the action that the applicants had brought.

The specific allegation put was one which, in my submission, entitled the applicants to call the evidence that they sought to in rebuttal of that material.  It was not simply, as it were, a broad-brush approach to try and introduce every prior consistent statement that had been made.  There was only one in question and it was one of very crucial significance in the overall context of the case.

Your Honours, if I can just go to the judgment of the Full Court in the matter.  I have referred to what Justice Wilcox said at page 40 of the application book.  Can I just take your Honours as well to what Justice Sackville said in his decision.  His conclusion against the applicants was based on a proposition that they had failed to satisfy what he described as the “second limb” of the test that had been put forward in Nominal Defendant v Clements.  The question to be determined in relation to that issue was, firstly, whether the statement that was sought to have been introduced through Mr Beattie, the solicitor, was to the like effect of

Mrs Virgona's evidence and, secondly, whether it rationally tended to answer the attack that had been made on her evidence.

His Honour said that he did not consider that that :second limb”, as he described it, was satisfied but an analysis of what was actually said in the pleadings - and they are contained in the application book at page 5 through to page 7 - does, in our submission, demonstrate that the thrust of what the applicant had said in the pleadings was consistent with and to the like effect of the conversation that was sought to have been introduced through Mr Beattie.

BRENNAN CJ:   Yes, thank you, Mr Byrne.

MR BYRNE:   Your Honours, if I can just finally say, in relation to that question that your Honours earlier raised about what I submitted was a conflict between the approach taken by the Full Federal Court in this case.

BRENNAN CJ:   That is a point that might have attracted some attention.  It is not really a point to be made after your time has expired, Mr Byrne.

MR BYRNE:   I am sorry, I did not appreciate that it had.  I apologise, your Honour.

BRENNAN CJ:   We need not trouble you, Mr Sackar.

This case involves no more than an application of the principle in The Nominal Defendant v Clements (1960) 104 CLR 476 to evidence in a trial in which extensive evidence was given from a number of witnesses. There is no doubt cast upon the correctness of the principles expressed in Clements’ Case and no elucidation of those principles would be achieved if a grant of special leave were made.  For these reasons, special leave will be refused.

MR BYRNE:   May it please the Court.

MR SACKAR:   We would seek an order for costs, if the Court pleases.

BRENNAN CJ:   You have nothing to say about that, Mr Byrne?

MR BYRNE:   No, your Honours.

BRENNAN CJ:   Refused with costs.

AT 9.55 AM THE MATTER WAS CONCLUDED