Cerra v Cameron & Jason Proprietary Limited

[1989] HCATrans 244

';~~

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M22 of 1989

B e t w e e n -

JOSEPH CERRA

Applicant

and

CAMERON & JASON PROPRIETARY

LIMITED

Respondent

Application for special leave

to appeal

BRENNAN J
DAWSON J

Cerra

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 OCTOBER 1989, AT 10.36 AM

Copyright in the High Court of Australia

MlT4/l/FK 1 13/10/89

MR R.J. MELDRUM, QC: If the Court pleases, on this application,

I appear with my learned friend, MR A. ADAMS, for the applicant. (instructed by Holding Redlich)

MR D. BYRNE1 QC:  May it please the Court, I appear with my

earned friend MR P. O'DWYER, for the respondent.

(instructed by Kargrave Ogge)

Your Honour, before my learned friend opens the

application, there is an affidavit that has been filed

yesterday, I think, an affidavit of NeillAnthony Ogge,

with an exhibit, which we would seek to rely upon, and

might I hand three copies of the affidavit to

Your Honour's associate.

BRENNAN J:	Do you have copies of that,Mr Meldrum?
MR MELDRUM:	Yes, we do, if Your Honour pleases.

BRENNAN J: Yes, Mr Meldrum?

MR MELDRUM:  If the Court pleases, although not required by the

practice direction, if I could hand the Court just a

summary of the argument on the application.

BRENNAN J:  Thank you. Mr Meldrum, are you able to distinguish

between any misapplication of principle by the Full Court

in determining the issue of perversity, and the facts

upon which the Full Court reached that decision?

MR MELDRUM. No, Your Honour, we can only urge this Court that

the - well, yes we can, in the sense that it is the

question of the use to which one can put the alleged
evidence concerning the credit of the plaintiff in

the circumstances of there being uncontradicted

evidence of the occurrence of the incident, and the

witnessing of it by the defendant's manager, and

the contrast in the approach between Mr Justice Gobbo

in the Full Court and Mr Justice Kaye, we say, does

draw a distinction in principle, and Mr Justice Gobbo

says, "Here we have uncontradicted, inherently probable

analyse," he says, " the attack upon the credit to	evidence, and an attack on credit, and one needs to	see if it is capable of permitting the jury to reject
the evidence which was uncontradicted and inherently probable, and therefore deciding that there was no negligence." Whereas the approach of the majority in the Full Court, we say, is really confined to the proposition that having satisfied itself that there
was an attack upon credit, His Honour Mr Justice Kaye
in his reasons says, "Well, now here is the evidence. It is uncontradicted in terms of what occurred. I now turn to what are the attacks upon the credit; here are
the a~t.tacks upon .thP.: c .. r.ed:i.t", and then, simply without
weighing those, concludes that because credit was
in issue it was therefore open to the jury to say no to the question of "Was there any negligence?"

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Whereas, we say that the approach of

Mr Justice Gobbo is the correct approach in

considering the question of whether the verdict is

perverse. It is not sufficient to say merely in

sunnnary,as Mr Justice Kaye does, the issue of credit

is put in issue, therefore the plaintiff cannot - or

the appellant in this case - the applicant cannot

establish that a verdict ought have been in his

favour. There really is, when one analyses the two

approaches of the majority and the minority judgment,

there being, of course, only one judgment written,

Mr Justice King concurred with Mr Justice Kaye, there

really does emerge this distinction that we seek to

argue that Mr Justice Kaye really says no more than,

"Credit is in issue", whereas Mr Justice Gobbo says,

"This is an application - or this is an appeal in

which it is asserted that the jury ought have been

bound to find for the plaintiff. Let me look first at what was the evidence about the accounts and the events, and then let me look at what was the weight

or thrust of the attack on credit;' because, of course,

it would almost be unknown for there to be a case for

personal injuries conducted before a jury where the

defendant does not put an aspect of the plaintiff's

credit in issue, and if, for instance, it be his

credit about his injuries, that may be seen to infect

the jury, and properly they would be entitled to say

"If we take a view that we cannot accept what he says

about his injuries" then they are urged to, say, "Well now,

do not accept what he says about the accident, and,

in effect - - -

BRENNAN J: Shall we just analyse this step by step. If we start

by taking page 109 of the appeal book - Justice Gobbo,

where His Honour, as I understand it, expresses

himself in terms which are consistent with the majority;

at the bottom of that page where he says:

The Appellant must show that on such a view

of the evidence a reasonable jury properly
directed and confining itself to relevant

considerations could not have failed to

find that there was negligence on the part of

the defendant which was a cause of the plaintiff's

injuries - - -

MR MELDRUM:	Yes, Your Honour.
BRENNAN J:	Now, is it common ground that that step is a correct

step to take.

MR MELDRUM. Yes, it is, Your Honour, yes, we have that onus

particularly in the circumstances where the onus

was on us in the trial.

BRENNAN J:  Yes, of course, yes, exactly. So we have a

congruence of views of the majority in Justice Gobbo

about the relevant principle to be applied, and that

is not challenged by you.

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MR MELDRUM:  No, Your Honour.

BRENNAN J: Well then, for the rest is it not a question of

determining whether or not that test is in the

particular circumstances of the case, including the

particular attach that is made upon credit, satisfied

or not?

MR MELDRUM:  No, with respect, Your Honour, we say it is not

as simple as this on this ground of this application,

that the analysis that Mr Justice Gobbo makes involves

weighing the effect of the credit attach, if I thus

paraphrase it, whereas the analysis made by the

majority involves no more than saying, "This is put

in issue", and makes no attempt to analys

effect and, indeed, implicit in Mr Justice Gobbo's

judgment, he is really saying that of the majority,

and it is certainly his perception, having been at

the appeal, that that really is what is occurring because

of the way in which he summarizes at page 112 his

perception of the distinction between the majority and

himself - - -

BRENNAN J:	I appreciate that.
MR MELDRUM:	But of course that is not necessarily

definitive of there being such a distinction in approach.

BRENNAN J:  The difficulty I am having with your submission on

this, Mr Meldrum, is that somehow or other the question

of whether you should evaluate the particular attack

that is made as distinct from noting that an attack is

made, is somehow transformed into a question of law or

principle.

MR MELDRUM: Well, because the principle would become this, we

say: that no applicant - no appellant - in a civil
case, who bore the onus, in respect of whom there had

been uncontradicted, inherently probable version

entitling him to a verdict, could succeed on appeal

if in the same trial on matters unrelated or not

properly related, and not related with any real weight

to the issue of the occurrence of the events, his

credit was put in issue, because that in reality is

the effect of the judgment. The exercise in

determining whether the jury was bound to determine

the question in favour of the plaintiff cannot be

decided, really, by an observation on an analysis

of the evidence that credit was in issue. That is not

enough, whereas that is the gravarr.en of what

Mr Justice Gobbo says of the majority verdict and, we say, a proper analysis of the majority judgment

on that aspect.

TOOHEY J:	I wonder doer that do the ·,nc1.j-::.:ity judgment complete
justice, Mr Meldrum? If you look at page -

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MR MELDRUM:  I certainly hope it does, Your Honour, but if it does

not I am in trouble on that aspect.

TOOHEY J: Well, if you look at page 107 there is a reference

to the question in cross-examination and putting

aside the details of that, the judgment then

refers to a number of factors, namely that no

reference was made to this matter in address

by counsel or in the judge's charge to the jury

and a conclusion, which may or may not be

well founded, that:

it is a reasonable assumption that

the facts were unlikely to have

influenced the jury.

The only point I am making is that you seem to

suggest that the majority did not direct any

attention to the likely influence the line of

re-examination might have had.

MR MELDRUM:	Your Honour, at page 107 it is dealing with what was the first ground in the proposed grounds of
appeal. That deals with the admissibility of what is, in summary, in the affidavit material described
as the "wealth evidence" and what the majority are
there doing is postulating a proposition of curative or retributive re-examination saying - and page 107 deals entirely with that. What occurred was, in re-examination, at the very end of the trial, the
managing director of the defendant company, over
objections, was permitted to answer the questions
on page 106 of the application book and they amounted
to no more and no less than his belief as to the
wealth and circumstances of the applicant.
There was a separate ground of appeal in the Full Court, 6(c), which sought to argue that that
evidence was inadmissible and prejudicial and we
were entitled to an appeal as a result. The majority
have ruled that of that evidence, that it could -
says the majority - be construed as responsive to the question albeit the question was inadmissible
and no objection taken to the question in cross-examination. That being the status of evidence at that stage, it was proper to reject the objection taken to the re-examination and therefore the evidence admitted in re-examination
being curative or retributive -depending upon whether
it is myself putting the proposition or my learned friend putting the proposition - of a circunstance that arose in cross-examination and the majority
have said that, in effect, "If you have raised it, bad luck, it can be fixed up." Mr Justice Gobbo
says, "This raises an important and <liffic.:ult
question that trial judges face all the time: when a matter is raised in cross-examination, without objection, which is inadmissible, what is the extent of permissible re-examination upon that topic? The

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majority and the minority differ on the question	of whether the answer, in any event, was responsive."
Mr Justice Gobbo accepts the submission we made, "The answer, in any event, was not responsive."
But the key to this issue is not whether the answer
was responsive, although we say that is an additional
reason for not permitting the matter to be
cross-examined upon, the key is, is there a principle in Australian law which follows some of the American
authorities that says, "If you raise the issue
it can be explained in re-examination."

Mr Justice Gobbo, in his judgment, points out

the dearth of academic discussion, the dearth of

authority, the frequency with which the problem is

raised and the difficulties facing judges at first

. .	instance dealing with this issue, there being, in
effect, on the face of it, two principles: one that
suggests if the matter is inadmissible in cross-examination, the re-examiner must leave the issue there and the other suggesting that if it be raised in cross-examination, the re-examiner has open slather,
this being a civil case where the discretions about admission are very constrained in so far as they
exist at all. They certainly exist in terms of
illegally obtained evidence but there are very few other discretions once the question of relevance has been decided. And it permitted, in this case, evidence to be given of the belief of the managing
director of the wealth of the plaintiff. No
explanation was made to the jury of the use they
could made of that evidence.  We say that evidence
was improperly admitted.  We say the analysis made
by Mr Justice Gobbo is the correct analysis of where the law ought be but he also properly expresses
the view that there is a dearth of authority, some
conflict, a dearth of academic writing on the subject and an important matter.

The issue in that matter, in summary, is that

it is our case that an analysis of the question in

an irrelevant issue.- there is no doubt, we concede	cross-examination reveals that it was dealing with	that and we conceded it in the Full Court - but
that the answer was non-responsive, and that alone
was a reason for it not being entitled to be explained in re-examination. If it were not non-responsive, it was an answer dealing with an
inadmissible matter to which no objection was taken
by the defendant and it cannot be said the defendant
was taken by surprise because the matter had been
raised first in opening and then with other witnesses
and it had been, at that stage, a degree of exploration.
And then what is admitted is it is said "This question
is an attack upon che employer's at.i:.it.ude to his employee" suggesting the employer is thoughtless and
hard-hearted and in order to show he is neither thoughtless nor hard-hearted, he can give evidence as to his belief as to the wealth of the plaintiff.

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However, that being the status of the evidence

that was given, then no help at all was given to

the jury that if it is admitted properly, for a
limited purpose, and if it is capable of being

misused as, clearly, this evidence was, and no

explanation is made, the only distinction between

the majority and the minority of this point is

that the majority say, "Well, look, four days went

by from when this evidence was given albeit that

it was the last evidence in the case. It doesn't
get raised in the charge and it doesn't get

specifically dealt with - we accept the assurance of

counsel which was given to the Full Court, it does

not get specifically dealt with in the address

and therefore, we say, it is not inadmissible

evidence - if the evidence was inadmissible", says

the majority, "it would not have been prejudicial.

Because of those two factors - there was a	lapse
of four days-" - the four days, of course, involving the weekend - "and it was not raised

again." Whereas, Mr Justice Gobbo says, "The

principle upon which it was sought to be justified

that it is curative or retributive of the issue

that was raised is not a proper basis for admitting

such evidence."

If I just take the Court briefly to

where Mr Justice Gobbo deals with that aspect:

it is at page 117 of the application book.

Mr Justice Gobbo, in the first full paragraph says:

I turn then to ground 6(c). This

relates to the admission, over objection,

of evidence in re-examination of the

defendant's managing director. During

cross-examination he had been questioned

about the failure of the defendant to

provide any light work to the plaintiff

in spite of the earlier claims - later

not persisted with - that the plaintiff

had failed to take up the offer of a

light job.

That had been an issue for some days and then the

managing director conceded that no such offer had

been made.

The cross-examination then proceeded to an

incident in which the plaintiff, who had

come to the office for assitance, had been

told not to bother the office staff. The

following exchange of questions and answers

occurred:

"Q.	And you realised that he was a married
man with four children?

A. Yes.

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Q. Not all of them dependant, I suppose,

at that stage, but a man with family

responsibilities who was trying to get

on to some sort of social security
benefits so as to get some money.

You realised that, did you not?

A. I realised that Joe was a man of substantial means, if you want to ask

me that sort of a question."

In re-examination the following evidence was admitted over objection.

"Q.	What was your understanding of the means
or the financial position of the plaintiff towards the end of 1984.

Objection - Disallowed -

and that is all the transcript records. There is no

basis for the objection recorded. The transcript

makes it clear that the - when I say "makes it

clear", that perhaps overstates it. The transcript

is consistent with the proposition the jury were

then in court.

"Q.	What was your understanding of the plaintiff's means at about the end
of 1984? I thought Joe was very well
off. What did you understand was his
position? What did he have?
A.	Well, in my opinion, Joe has worked
a lot of overtime and got very good money. Been able to purchase three
properties on the way through. Run a
fruit shop for some time. So, my
understanding of Joe Cerra was that
he was at substantial means.

Q.	What sort of properties did he - did you
understand him to have?
A.	Several houses in Brunswick and Pascoe Vale.
Q.	Do you know what he was doing - what was
your understanding as to what he was doing with those houses? Were they - do you understand that they were being
rented or?
A.	I think he was renting them. I believe
he was renting them."

Mr Justice Gobbo says:

In my view this evidence should not have

been admitted. It arose out of a non-responsive

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answer as to the plaintiff's means.

It could not properly be said to be material introduced by the cross-examiner.

But it was arued that the tenor of the

cross-examination was to suggest that the

plaintiff was in financial hardship and that

accordingly the witness' answer was a

responsive one. The question of the

plaintiff's financial circumstances - - -

BRENNAN J:  You do not need to read the judgment to us,

Mr Meldrum.

MR :MELDRUM:  Yes. He then deals with the fact that he takes

the view that it is not. Then he deals at page 119

with the proposition that it raises a difficult

issue. That:

Apart from the Statute, the present

case - even assuming that the answer was

responsive - falls to be considered

under the category discussed in Wigmore on Evidence under the heading "Curative

admissibility; Prior Introduction of

Inadmissible Evidence". (Volume 1

section 15).

TOOHEY J: 

Could I just interrupt you for a moment, Mr Meldrum? The submissions you have been putting to us laterly, I take it, have nothing to do with perversity?

MR :MELDRUM: 

Sorry, Your Honour had taken me and I was permitted

to be taken by Your Honour to that passage, this
dealt with that, and it has nothing to do with

perversity.

TOOHEY J: 

It is a question of whether the evidence was

admissible.

MR :MELDRUM: 

What is the appropriate principle for the

admissibility of the evidence.

TOOHEY J: Yes. Well, I take it, if it was inadmissible,

having been wrongly admitted,

should the trial then have been aborted?

MR :MELDRUM: Or, it not having been aborted, is the verdict

explicable on the basis that there had been a

miscarriage of the trial because this evidence

was objected to. An application by the plaintiff's

counsel for a discharge of the jury - - -

TOOHEY J:	But you are moving into another area once you put
it that way.

MR :MELDRUM:  Sorry, Mr Justice Toohey: but an application by

the plaintiff to discharge the jury would have been

futile because the application the plaintiff has

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made is to exclude the evidence, and the judge has

ruled the evidence admissible.

BRENNAN J:  Was there any application for a special direction

to be given to the jury?

MR MELDRUM:  No application for a special direction was

given to the - was made.

BRENN.Ai.~ J: Was any application with respect to the

direction on this evidence?

MR MELDRUM:  No exceptions were made at all to the charge

and no application as to the form of the charge

was made. Now, if one analyses that though,

putting oneself in court where a matter, to

which one has objected, potentially very

prejudicial, has been raised and it is at this

stage not featured in either the address or the

charge, it is a very difficult question for

counsel to then decide, "Now, do I seek, by

way of redirection to have at the end of the charge

raised that the jury are to be directed that the

very limited use to which they may put that

evidence is that it goes only to the credit of

Mr Jason upon whom an attack was made and

of course, it is no evidence as to the wealth
of the plaintiff and, of course, the wealth of
the plaintiff in any event would not be relevant

or admissible?"

One only has to state the dilemma. in

which -

BRENNAN J:	A very difficult dilemma because one horn of
it is that when it gets to an appeal court

they will say, "Well, there was no application

for a redirection."

MR MELDRUM:  They have been saying it in the other appeal

courts, Your Honour, and of course it is a

difficult dilemma.

BRENNAN J: Yes, and if you go to a second appeal court

you may find also that that appeal court will

say, "And there's a lot to be said for the view

expressed by the majority that nothing had been

referred to for the last four days and nothing

was referred to in the addresses and therefore

there is some substance in the choice which counsel made not to ask for a redirection."

MR MELDRUM: Well, that is to deal with the merits of it rather

than the principle and this application is to do

with the principle. But, of course, if it is the

right case to raise the principle but the merits are

hopeless,that would be relevant to whether an

application should be granted.

BRENNAN J: Yes.

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MR MELDRUM:	So, we must grapple with that and what we say is that the time is irrelevant. It is the very last
evidence given in the trial.  The four days becomes
four days because there is a weekend. Following that evidence being given, there is irmnediately an
address by cot.ms el for the defendant. _On __ the
following Monday.there is an address - I think
counsel for the defendant might have finished on
the Monday but certainly on the Monday counsel
for the plaintiff addressed and by the Tuesday
the jury had finished.

(Continued on page 12)

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MR MELDRUM (continuing):  Now, it cannot be, we say, a

principle of evidence that if evidence that is highly
prejudicial is admitted at the very end of a case, the
case being a short case, that any amount of time cures

the prejudice, nor can it be, we say, necessarily or

at all relevant that it is not expressly raised by

counsel for the defendant in his argument. The

question of Mr Jason and Mr Jason's credibility was

very much a matter in the dispute because, as I had

indicated to the Court, at one stage and indeed for

some days in the trial the defendant was arguing in

respect of the plaintiff, "You had a standing offer

for light work. You could have come back to that

light work, at any time, did you not, and you failed

to do so", and it was only when Mr Jason was produced

that it was indicated that no such offer was in fact made

at all and he, however, took another tack. The tack

he took was all the work was light, including the

work he was doing at the relevant time.

So it is not as though we were dealing with an

irrelevant witness. The view, for example, of a records
officer who came to court and somehow or other got

asked what was his belief about the plaintiff's

wealth and it had also been a matter that had been

canvassed as to what the relationship was between

the employer and the employee, it being put by both

sides that it had, prior to the accident, been close,

that is personally close. The plaintiff having put

that to say, in effect, "If I cannot get a job with an

employer for whom I have worked for many years and with

whom I was on friendly terms and close to, then my

proposition that I am unemployable carries more weight",

the defendant, putting the obverse of the proposition

saying, "You had no need to worry about coming back

to us. We're your old friend. We would have done

whatever we could for you", and Jason was the only witness

on liability called by the defendant, the last witness

and therefore we say that it is with great respect to

Mr Justice Kay and the concurrence by Mr Justice King

in that that the propositions that it is not mentioned

again and that there are four days is no answer to

the question if, in principle, the evidence is

inadmissible and if the inadmissible evidence is,

on the face of it, potentially very prejudicial and

we say it is potentially very prejudicial, it is no

answer to say, "Four days have elapsed and it does

not get mentioned again.

So that we say it raises a point of principle,

a point not without difficulty, a point that His Honour

the dissenting judge has said, as an experienced trial
judge, is one regularly raised and needing an answer,
it is one in respect of which our affidavit says
by an experienced practitioner in the field the same
thing, that particularly in terms of attempts

frequently by defendants to raise wealth evidence

MlTS/1/HS

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and the relevance of it, it is a matter that is

constantly an issue in jury trials in this State

and we say it is an important, special and difficult

question and it is not, on the face of it, one where

when the facts are examined we are doomed to fail and

therefore it is not a poor vehicle for this

principle to be decided.

TOOHEY J:  As you have put it, none of this has anything to do

with perversity. It is a point on its own. It is a

point of admissibility of evidence -

MR MELDRUM:	It is a discrete point, Your Honour, yes.
DAWSON J:	I was wondering that.
MR MELDRUM:	It is a discrete point, but it can also -

DAWSON J:  You put your case on two bases, do not you? You

say the verdict was perverse because evidence on a

crucial issue was all one way and the plaintiff's
credit is not significant in relation to that.

MR MELDRUM:	On this issue not significant, yes Your Honour.
DAWSON J:	But you say evidence was wrongly admitted which

resulted in a miscarriage because it may be the

explanation of the perverse verdict.

MR MELDRUM:	Precisely, and that is indeed the way in which - - -
DAWSON J:	So they are interconnected?
MR MELDRUM:	They are interconnected in that if one looks for

why was it perverse, but it will stand on its own if

it is inadmissible evidence dealing with a matter where

?ne cannot say that it misled the jury on an important

issue.

DAWSON J:	So you could succeed on the first issue by itself?
MR MELDRUM:	Yes.

DAWSON J:  But if you get to the second issue, then it 1s

connected with the first?

MR MELDRUM:  Yes, Your Honour. So that it is capable of being

discrete, it is put as a discrete point, and it is

also in the way in which Your Honour Justice Dawson

put it to me, tied up with the overall view of it and

certainly when one reads Mr Justice Gobbo's judgment, he says in effect, "When one looks at it all, that is

a very likely explanation for where the jury went wrong".

BRENNAN J:  Do you seek on one basis an order for a retrail and

on another a judgment for the plaintiff?

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MR MELDRUM:  There would have to be a retrial but the retrial

on one basis would be a retrial on all issues and on the

other basis would be a retrial confined to the issue

of damages, but with that very necessary modification.

What Your Honour says to me is correct, that there

have to be distinctions in the result that flowed from

each of the two views.

BRENNAN J:	Yes.
MR MELDRUM:	And as the Court having been deflected -although

the Court may find that the outline of the argument

in the written form is sufficient, having been

deflected by Your Honour Justice Toohey at an early

stage from where we were about the perversity - having

permitted myself to be deflected, one should say -

BRENNAN J:  Have you said everything that you wished to say on

both heads, Mr Meldrum?

MR MELDRUM: 

I have not, if Your Honour pleases. In terms of

the perversity what we wish to say is that the summary
of the evidence is that the plaintiff was working under
the supervision of and accompanied by his foreman

and leading hand in performing a lift, and Mr Jason,

the managing director, was present on the evidence of

the plaintiff whilst this was occurring. Mr Jason does

not deny that.  Mr Jason said, in evidence, "I was

aware of the incident", and the Court will be aware
from the application book that there were a number of

incidents but the parties were all agreed that a major

incident was one of 6 July 1984, "and I was _present",
he said, "at the incident". "I was aware of1', he

did not say, "I was present." The plaintiff says he

was present. He says, "I was aware of the incid.ent"

Neither the foreman nor the leading hand are

called nor is any explanation given of their absence
and, indeed, on the contrary, the defendant

cross-examined Mr Jason to establish that one still

worked for him and he was aware of the whereabouts

by the plaintiff as being of a roller of 50 kilograms -	of the other. The lift was of a weight deposed to	a machine consisting of three rollers, each of 50 kilograms, and there were three people involved
in that lift.

Now, the defendant ultimately argued, as the

application book will record in terms of the judge's

charge and, indeed, the judgments in the Full Court

having picked up this charge~ in the face of that

the defendant nevertheless argued to the jury that

they ought not be satisfied the event occurred at

all and, in the alternative, ought not be satisfied

that it occurred in circumstances of negligence. The

sole basis upon which one could argue that the jury

ought not be satisfied on the balance of probabilities

that it occurred and in circumstances of negligence

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was this issue of the credit and therefore we say

that the reasons why the jury would have been

compelled to find in our favour is that the work
is being done not merely in accordance with the

system laid down by the employer - it is very much a classic McLEAN V TEDMAN situation - but actually under the supervision of the managing director and

with the assistance of the two immediate supervisors;

the foreman and the leading han~ and not one of those

two being called and the managing director saying,

"I was aware of - I knew of the incident." And

yet the trial, going - - -

BRENNAN J:  We understand the strength of the case. You have

made the point of principle, have you not, that it is

a question of the impact of the credit?

MR MELDRUM:  Of analysing the appropriate impact of the credit,

yes.

BRENNAN J: Yes, and your espousing of the view of

Mr Justice Gobbo?

MR MELDRUM:  Indeed, Your Honour.

BRENNAN J: Yes. Well now, is there anything further that you

wish to add?

MR MELDRUM:	No, there are no additional matters that we seek to address the Court.
BRENNAN J:	Mr Byrne?
MR BYRNE:	If the Court please, may I hand some notes of the argument to my learned friends and the Court?

If the Court please, might I deal with the

grounds as they are in the proposed notice and

the first of which deals with the evidence in

re-examination of Mr Jason? Our primary submission

is that this is not a special leave point. There

is a well-established principle over 150 years old

which would permit the re-examination of the

evidence in question and to the extent that the

judge may have been minded to exercise some

discretion that he had under the EVIDENCE ACT,

that was really a matter for him. So that there

is no great principle or a question of principle to be

explored in relation to this issue.

The second proposition relates to the case of

CARGILL which Mr Justice Gobbo refers to. If I

might - I do not know whether the Court has the

copy of CARGILL. That was a case - perhaps a

remarkable case - if I may hand the copy to the

Court - where the prosecutor opened a case for carnal

knowledge and opened the case that the prosecutrix,

the victim, was a virgin and she was seduced by the

accused. And in the course of the evidence on behalf

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of the Crown led that evidence. The witness, the

girl, was cross-examined on that issue and then
subsequently the accused sought to lead separate evidence to the effect that she was a prostitute

and she was not a virgin and it was that evidence

which was excluded in CARGILL's case. And

Your Honours will recall that the proposition that is relied upon in support of the contrary view as

to the admissibility of the re-examination leans
heavily on the CARGILL decision whereas, in that

case, the evidence which was accepted to have been

inadmissible and irrelevant was opened, was led

in-chief, was cross-examined without apparent

difficulty and where the question arose was to the

leading of extra evidence in relation to it, and

we would submit that it is a rather different

. ' question than the one before us.

The third proposition is based upon the old

case of BLEWETT V TREGONNING which His Honour

refers to. That is an old case was 1835 or

thereabouts of which we have copies for the Court
in which the proposition which is set out in

Mr Justice Gobbo's judgment was, in fact, established, namely that if counsel cross-examines

on matters which are inadmissible and does so

voluntarily, well then, re-examination is permitted

of that evidence in order to clarify it or to perform

the normal functions in re-examination. So, the

cross-examiner must take the good with the bad
if he chooses to open up an issue even though it be

an irrelevant issue.

Their Lordships in that case also deal with

the other possibility which is the reason this matter

was raised in the Court of Appeal was that what
happens if the witness makes a non-responsive

answer to cross-examination and that non-responsive

answer is inadmissible? Their Lordships' answer

to that was, well then, that is then a matter for

the cross-examining counsel. He has got to make his

mind up.

evidence or, in a case such as the present, I suppose, Does he ask the judge to expunge the

he would simply direct the jury to disregard it, in

which case no re-examination would be permitted

because the evidence is not part of the material

before the court or, if the cross-examiner

chooses not to make such an application or, if he

does and the application is unsuccessful then,
in those circumstances, re-examination is permitted
on the basis that it is part of the material before

the jury and the jury is entitled to know the whole

picture.

BRENNAN J: Where is that part of BLEWETT V TREGONNING which

is material to the present case?

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MR BYRNE:	The passage at - this is in the English Reports, Your Honour, and at page 535 Chief Justice Lord Denman
sets out the conclusion or his views on this question.
The factual basis appears on page 529 of the English Reports and it dealt with a witness on cross-examination
giving evidence of usage on other lands - this was
a prescriptive user case - and he was permitted
to ask questions which were irrelevant, namely,
as to usage and at the passage beginning on
page 529:

A witness for the plaintiff, on

cross-examination, said -

the summary of that witness's evidence is there set

out. And then further down:

The plaintiff's counsel. on re-examination,

asked whether there had not been

interruptions to the taking of sand from

the adjoining rights. This question was
objected to; but the learned Judge
permitted it to be put, on the ground
that the evidence on cross-examination
had opened the inquiry as to the

adjoining rights.

And the witness then went on and gave some evidence.

Their Lordships dealt with this at page 535,

the Chief Justice, where His Lordship said, at

about line 5:

it is clear that this proof came out on

the cross-examination of the plaintiff's

witness. But is is suggested that this

was thrown in voluntarily by the witness,

and that therefore the defendant is not

bound by it as his own evidence. It did,

however, come in, and the plaintiff was,

therefore, entitled to pursue it, unless

was not done. The re-examination, therefore,

the defendant got it struck out; and that

might properly take place.

Half-way down the page there is the judgment of

His Lordship Mr Justice Littledale, the first

three lines of His Lordship's judgment to the same

effect, and at the bottom of the same page,

Mr Justice Patteson, having expressed some doubt

about it over the page at page 536 at line 5

sets out the proposition:

Had it appeared that the cross-examination

of the defendant went only to shew that

other persons exercised the right on this
close, I should have thought the evidence in

question was not let in. But, when it was

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left on the Judge's notes that the

user had been in other places, that,

however it got upon the notes in the

re-examination. If it 'lrosP. from the

voluntary evidence of the witness

should have been expunged; for an

adverse witness cannot let in evidence -

and then Mr Justice Williams, at the bottom of the
page, who appears to have been the trial judge,

made no observation except in the fourth line of

His Lordship's judgment, that he:

left it to the jury -

and earlier on His Lordship expresses the view

that he took the view that this was an intentional

cross-examination and not simply, as it were,

thrown in by the witness.

DAWSON J:  Was the evidence irrelevant in that case?

MR BYRNE: Well, it was said to be irrelevant by everybody,

yes, Your Honour, although, I think, subsequent

commentators have argued perhaps it may not have

been irrelevant. Essentially, the case was dealt

with on the basis that the evidence should not have

been led so that the ruling which is - - -

DAWSON J:	Not on the basis that it was non-responsive?
MR BYRNE:	That the cross-examination ought not to have been -
not addressed this question.  The matter was
irrelevant.

DAWSON J: Yes.

MR BYRNE:	So that the third proposition for which we rely,
namely, based on BLEWETT's case is that if it was
relevant to the matter in issue or the credit of the witness then it is a matter which is
properly re-examinable and we submit that it was
relevant because the cross-examination as a whole,
when one looks at it, and the cross-examination
is part of the material which we have placed before the court, shows that the cross-examination of
Mr Jason was directed to showing that he was, in
fact, a callous employer and that we had a very
good natured and obliging employee and he was a man who was hard and prepared to exploit him and
that was or was not accepted by Mr Jason. He
denied it and said that, in fact, he was a caring
employer. And then one gets to the incident that provoked this particular passage which appears in
the transcript which is an exhibit to Mr Ogge's
affidavit, page 261, the paging at the bottom of
the transcript, sets out the passage in question.

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It is important, with respect, to put the whole incident in its context. What had happened was that the evidence - and this, as my learned friend,

Mr Meldrum, has said was argued at the opening because there was complaint about the opening of

this issue - that some time after he had left
work he went back to get some assistance to fill
our a social service form and he was told to go away

and it was suggested that that was a very hard and

uncaring way to deal with an employee who had been

with the firm for 30 years and had suffered injury. is led in by that suggestion of a hard and uncaring

man and then it is followed up with, "And didn't you know that he, in fact, had four children and that he was a man with family responsibilities?" So, the

issue came up in that context, it was not just sort

of, as it were, dropped out of the sky. And the

witness who had been subjected to the attack from

counsel for the plaintiff said, "Well, I didn't know

that. I thought he had substantial means" and so

that is why his answer is not an unresponsive

one but it is, in fact, a response to the general

attack that was being made upon him. When one is

seen in the context of that, the view of the majority
of the Full Court is clearly, in our submission,

sustainable.

And then the cross-examiner moves away

and talks about how they met socially or did not
meet socially and then the matter is then left at

some stage later at page 266 when the re-examination

is reported as set out in the affidavit in support

of this application.

DAWSON J:	On this basis, what precisely is the issue to which
that evidence is directed?

MR BYRNE: Well, the evidence was directed by the plaintiff to

show that - because the contest between the parties
was that this man had been working for many years.
The plaintiff said that he had a bad back and that he was required to lift heavy loads. The defendant

said, "Not so, you're on light duties. You had other

assistance. You had mechanical assistance and I

never asked you to carry out heavy work", and so

the contest between them was the two versions
of the relationship between the parties. One has
to bear in mind that the way the case was put
is not only on a series of particular incidents
but a general allegation that the plaintiff, over a
period of - 1979 to 1984 was required to lift
excessive loads.

So, obviously, the cross-examiner is set to paint the picture of this - - -

DAWSON J: Hard-hearted - - -

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MR BYRNE: - - - hard-hearted employer and who ought, (a) would

very likely to have exploited this unfortunate

worker and secondly, of course, in so far as there

was, as there was a contest on a number of issues,
that he is not a man to be believed because here is

a man who pretends to be very nice but, in fact,

he was a hard-hearted man as all the evidence is,

and the tone of the cross-examination and the irony

which comes through on the transcript clearly

indicates that the intention of the cross-examiner was to, in effect, attack in a very subtle way the

employer in this way.

So that our proposition (c) is that it is

relevant to an issue, that is to say, the relationship

between the parties was part of the material the

jury would be concerned with and they are entitled

to know what Mr Jason's understanding of him was

so as to give some explanation for what otherwise

appeared to be an uncharacteristic ordering him

off the premises when he came for assistance. So

that in that way it is relevant, in our submission,

and so that it falls within the fundamental rule

of BLEWETT V TREGONNING, that if you open up an

issue which is relevant, well then, you are entitled
to re-examine. Perhaps that does not require

BLEWETT V TREGONNING, perhaps any case would support that. But BLEWETT V TREGONNING, perhaps, deals with

the further position, if it is argued that it is

inadmissible and we say it was voluntarily.

And then in proposition (e), we say that even

if it was a non-responsive answer as Mr Justice Gobbo

concluded, then notwithstanding that,the choice was

for the cross-examiner, and he made no move to
expunge the question or to ask the judge to give

the jury a direction to ignore it and so, in our

submission, he, having chosen to leave this material

as part of the material before the jury, is obliged

to accept any re-examination on it.

Proposition (f), as we apprehend our learned

friends, would be to say that the law in

BLEWETT V TREGONNING is not good law or not to be

said to be good law in this country and our

submission is set out in the cases below. We

refer to IRELAND V CHAPMAN, an early decision of

the Supreme Court of Victoria which, on the face
of it, would tend to support the proposition my

learned friend is contending for and I can take

Your Honours through that case. It is a case
involving cross-examination of a planter who was
in revolt on the Isle of Fiji in the 1870s and it was

by no means clear from the case exactly what the

evidence that was said to be inadmissible was

and the case refers to BLEWETT and said, "We're

following BLEWETT" but in the event refused to

permit re-examination of an issue which had been

exposed in cross-examination on the basis that it was

inadmissible.

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CARGILL's case, which we have referred to,

and a couple of Canadian cases which the industry

of my learned junior has discovered and if I might

hand to you NOEL's case which is very close to

the point, an old case, and a criminal case in

which BLEWETT V TREGONNING was followed - - -

BRENNAN J:  Mr Byrne, we do not wish to conduct the appeal

at this stage and we are concerned to identify

what the issues are only. If it were necessary

to read these, perhaps, with an adjournment not

far away, we could take them under advisement

at that stage.

DAWSON J:	The headnote seems to encapsulate it pretty well.
MR BYRNE:	Yes, Your Honour. Well, I simply wish to say, Your Honour, that it is a long-standing rule which
is applied not only in our - it does not appear to
have been discussed in Australia apart from the IRELAND case and in the other jurisdictions and
I refer also to the texts and regrettably the
passage in Cross on Evidence is against me on this
point, that is to say, the. current edition.
DAWSON J:	The Australian edition.
MR BYRNE:	The Australian edition, yes, Your Honour. The
English Cross on Evidence which is, of course, an authority, hav:ing regard to the lamented death of Sir Rupert, does not make any point of it at all
but in the Australian edition the proposition my learned friend contends for appears and
CARGILL's case is cited in support of it. Then
we set out what we say is the good policy reason behind the rule and perhaps it is of no great
assistance to take Your Honours through what we
set out there because that is really a matter
which would be properly ventilated in the event
that the issue had to be examined in more detail.
is no real issue of law arising out of this We would conclude, Your Honours, that there
evidence and we would submit, further - we would
support the conclusion of the Full Court that the
answers of the defendant could not really be
expected to have any effect on the verdict of the
jury. One has to bear in mind that this was a
case, although only three days, in which there were
a number of issues. The summary of the issues set
out in my learned friend's notes we certainly would
not agree with as being uncontradicted evidence. So
there were issues of various sorts involved and it is
clear that what the witness said was that, "My
undersL:ancl.i.ng of his wealth was this", so that it is
clear from the material that the only material before the jury was as to the state of mind of Mr Jason.

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My learned friend adds the·question of charge the jury and we would submit that that	the insufficiency or failure of the judge to
is not a ground which was put against us in the proposed notice of appeal but, in any event,
we submit that that is really a matter for
counsel for the plaintiff faced with the dilemma
that has been referred to. In our submission,
he chose to let things lie; he chose not to raise the question at the outset of the judge's charges or even, as Your Honours will recall, the judge
was part - completed his charge over the weekend break and there was one matter raised, an error
which was said to have occurred in the statement
of facts earlier and it would have been very
easy for my learned friend or counsel for the
plaintiff at that stage to have raised an issue
if he wished to do so and to have raised an
exception at the end of the charge, again, if he
wished to do so. So, in our submission, having
opted to leave things as they stood, no doubt because he thought the evidence was not going
to be of any significance, then, in our submission,
he cannot be heard now to say that this was a
matter of significance.

So, that is really all we wish to say about

the first ground. So far as the second ground

of perversity, we would submit that that is not

really a special leave point. The law has been
correctly stated by the Full Court and the

evidence was there for the jury to carry out an

investigation, perhaps, rather similar to

His Honour Mr Justice Kaye and Mr Justice Gobbo

did and while it is possible to say that the jury

could have come down on one side or the other, it

is clear that they pursued the line rather on the basis of Mr Justice Kaye and formed the view that

for various reasons the version of the plaintiff
ought not to be accepted bearing in mind that the

question as it was permitted a number of findings

which would be consistent with the verdict, namely,

that the incident did not happen or the series of

incidents did not happen; that they did not happen

as the plaintiff said or that the plaintiff had a

bad back, as the evidence did suggest, for some

time. So that there were various versions upon
which the jury could have reached the verdict

which they did and it is not possible to say -

certainly not on the material before this Court -

and not possible, in any event, in our submission,

that the jury was inescapably perverse.

So that, in our submission, the perverse argument,

ground (b), is not a ground for which special

leave- should be granted.

Then the third ground relates to the

charge - - -

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DAWSON J:  Could I just take you back to one thing? When you

how would that operate in this situation? say the jury might not have believed the plaintiff,

MR BYRNE: Well, Your Honour, there were about three or four

versions of the principal incident, the incident

in July 1984, and all emanating ultimately from

the plaintiff. The jury may not have believed
the evidence of the plaintiff as he gave it in the

witness box. They may have preferred a version

he gave to one or other of the doctors, and there

was one of the doctors who was not told anything

about this incident, so they may well have taken

the view that certainly the incidents which

occurred did not occur in the way that the

plaintiff said.

DAWSON J:	Or did not cause injury in the way that he
said.
MR BYRNE:	Yes, Your Honour, because it was common ground that
the plaintiff had a bad back and the evidence
seems to suggest that he had  degenerative disc

TS	damage and th.at, of course, he was working. The plaintiff's task, of course, was to put all
that together and, of course, to show not only
that he was carrying out lifting work but that it
was negligence in the defendant. And what the
jury, we say, could properly have found was that
this lifting work was work which was light duties
as far as the employer was concerned and it is very
unfortunate that this plaintiff, with his bad back,
was unable to cope with these light duties.

So that while different positions were adopted

by counsel for the defendant so far as the various

incidents were concerned, the general picture was

that the defendant said to the jury, as His Honour

sUIIllilarized at pages 76 and 77, "Well, there is an

issue as to whether or not these matters did, in

fact, cause the back which is commonly accepted

that the plaintiff did have." So, our submission

would be that there was abundant evidence before

the jury and that it is not for this Court to engage

in a minute examination of the evidence to see

whether or not they ought to have accepted that

evidence, what they should have done with what

the plaintiff said to Dr Chin or Mr Wilson or
the like and that that is not really a special leave

point and that the matter ought to rest with the

Full Court's decision on that.	The final matter
which - - -

BRENNAN J:  I do not think we need trouble you about ground (c),

need we?

Mr Meldrum, have you anything in reply?

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MR :MELDRUM:	Simply, Your Honour, that at page 105 of the application book Mr Justice Kaye put the proposition
that:

It was not contended before this

Court that the evidence of those matters - and that is the matter of Jason's belief and the

matters of his treatment of the plaintiff, were -

relevant to the issue of either

liability or damages; nevertheless it

was admitted without objection.

And we say it is very late in the day for the

respondent to be now seeking to put a basis on

which it was said that in any event the issue was

a relevant issue, it not having been contended at

the earlier date. If the Court pleases.

BRENNAN J:  Thank you, Mr Meldrum. The Court will consider

its decision in this matter and hopes to be in a

position to give it after the luncheon adjournment.

AT 11.42 AM THE Y.tATTER WAS ADJOURNED

T6	UNTIL LATER THE SAME DAY
UPON RESUMING AT 12.45 PM:
BRENNAN J:  The interesting argument developed by Mr Meldrum

as to the evidence admitted over objection in
re-examination depends in large measure upon the
relevance of the evidence admitted in cross-examination

to the issues falling for determination by the jury.

The relevance of the evidence admitted in

cross-examination depends, in turn, upon the matters

of fact arising in the trial and the way in which they were dealt with in the conduct of the trial.

Having regard to the parts of the transcript

with which we have been furnished, we are unable to

be satisfied, despite the way in which the proceedings

were apparently conducted in the Full Court, that the

evidence was wholly irrelevant. That assessment

is, of course, peculiarly related to the facts of

this case.

We cannot be satisfied that this is a suitable

vehicle to raise the question of principle governing

the admission of evidence in re-examination. Once

that ground of the application is disposed of, it can

be seen that the question whether the verdict was

perverse raises no question of law of general public

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importance. Accordingly, the application for

special leave is refused.

MR BYRNE:	We would ask for costs, Your Honour?
BRENNAN J:	Mr Meldrum?
MR MELDRUM:	I cannot resist that, Your Honour.

BRENNAN J: Refused with costs.

AT 12.47 PM THE MATTER WAS ADJOURNED SINE DIE

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