Christou & Anor v Rider

[1995] HCATrans 43

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B24 of 1994

B e t w e e n -

PETER CHRISTOU and TRIMITHIA ENTERPRISES PTY LTD

Applicants

and

MAGUERITE ROSE RIDER

Respondent

Application for special leave to appeal

BRENNAN J
DEANE J
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 MARCH 1995, AT 12.17 PM

Copyright in the High Court of Australia

MR S.C. WILLIAMS, QC:   May it please the Court, I appear with my learned friend, MR J.A.M. INNES, for the applicants.   (instructed by Dillons)

MR R.V. HANSON, QC:   May it please the Court, I appear with my learned friend, MR R.A.I. MYERS, for the respondents.   (instructed by Clayton Utz)

BRENNAN J:   Yes, Mr Williams?

MR WILLIAMS:   Your Honours, this case concerned a motor vehicle accident, liability for which was determined by his Honour Mr Justice de Jersey in favour of the applicants.  On appeal, the Court of Appeal unanimously determined that that judgment should be set aside and by a majority ordered that in lieu of the order of the primary judge, judgment should be entered for the plaintiff in the amount of damages he had assessed.

The basis upon which the Court of Appeal proceeded was that error had occurred in the determinative process, that the primary judge’s reasoning was flawed and that his advantages in choosing between witnesses had been lost.  Those findings are summarised in the judgment of Mr Justice Thomas, which was the judgment of the court on these matters, at page 32 of the record, commencing at about line 3 and proceeding to about line 15.

His Honour also categorised his view of the evidence at page 33, about lines 3 to 6, as one in which the primary judge’s view on credit was found to be erroneous and that the whole exercise of the assessment of credit may be thought to have miscarried.  The primary judge had assessed credit on the basis of, among other things, the demeanour of witnesses.  That appears at a number of points in his Honour’s judgment but particularly at 7, line 20 and 8, line 05, where his Honour dealt with the demeanour of the defendant.

This application, your Honours, then concerns the disposition of the appeal on the point of which the Court of Appeal determined that the judgment should be interfered with.  The dilemma facing the court at that time is identified by Mr Justice Thomas at page 33, line 20 in these terms:

The difficulty lies in the circumstance that the entire fact finding process has failed, and there remains a body of evidence, containing actual and potential conflicts, which would need to be analysed without the benefit of hearing and seeing the witnesses.

The alternatives open to the court were to substitute its own view of the facts and give judgment accordingly, which was ultimately the result, or to order a retrial as Mr Justice Thomas would have done.

We submit that the principles upon which the court should have proceeded are not well defined or not sufficiently well defined by any decision of this Court and that such a decision is necessary to provide guidance to appellate courts is, in our submission, demonstrated by a number of factors, including the difference of opinion which exists among the members of the Court of Appeal in this instance;  the difference in approach to this point between the majority decision here and what we submit are statements of principle, which may be extracted from decisions such as Pearlow v Pearlow and De Clara v Commissioner for Railways, to which we will refer.

A further factor, in our submission, is the appearance of unfairness and unjustness which may emerge from an appellant court determining a matter such as this in this way.  Finally, in our submission, there is a probability that the error demonstrated by the majority decision in this matter will be perpetuated by its use as precedent in Queensland certainly, and, perhaps in appellant courts throughout Australia.

In our submission, there is no difficulty with the well‑established principle that a determination by a primary judge, not dependent upon an assessment of credit determined by the demeanour of a witness or witnesses, is capable of correction on the record by an appellant court if significant error is demonstrated.  In Part III paragraph (b) of our submission, we refer to some of the authorities which clearly establish that principle.  This, however, in our submission, is not such a case.  Here, objective evidence was very limited and somewhat inconclusive.  The primary judge’s findings were based upon his assessment of credit of witnesses and particularly upon their demeanour in giving evidence so far as the defendant’s evidence is concerned.

This case is quite different, in our submission, from cases such as Chambers v Jobling and Voulis v Kozari to which our learned friends refer.  They allege a much wider appellate discretion in dealing with the problem presently before the Court.  Chambers v Jobling, in our submission, was a case where demeanour played no significant part in the determinative process.  It was, in our submission, a case where the Court of Appeal felt itself to be in as good a position as the primary judge to make determinations of fact as the primary judge had not made any positive finding based upon demeanour.

Voulis v Kozari, in our submission, falls into the same category.  Again, as appears in the judgment of his Honour Justice Gibbs and Justice Stephen, at page 64, there was no adverse finding in respect of the appellant based upon his credit in that case but merely a conclusion by the trial judge that his evidence in one important respect should not be accepted.  That was a case in which incontrovertible objective evidence was seen to overwhelm a finding based upon credit but not based upon demeanour.

BRENNAN J:   Mr Williams, do you not have to come to grips with the factors which the majority referred to, particularly at page 20 of the application book, and upon which their Honours relied in order to say this case in its unique circumstances is one where we ought to proceed now to make the necessary findings.

MR WILLIAMS:   Yes, your Honour.  Dealing with those matters, in our submission, the whole fact-finding process having failed, no confidence could be entertained within his Honour’s, or that is the primary judges, other findings of fact, and no confidence could then be entertained in relation to the evidence of the plaintiff as to the position of the truck and her vehicle at the time of her last recollection.  As the defendant’s evidence had been rejected, apparently in its entirety by the majority - that appears at line 14 on that page - in our submission it would be inappropriate for the appellate court to then base its decisions substantially upon features of that evidence which it had rejected, and it does so between lines 18 and the end of page 20, where it relies upon three factors:  a concession made by the defendant that when he stopped his truck its front was in a certain position; his subsequent action in parking the truck on the outbound verge of the road; and the fact of the first point of impact, and subsequent points of impact with the truck.  That emerges from the defendant’s evidence and those appear to be concessions upon which their Honours were prepared to rely from evidence which they had, it seems, wholly rejected.

BRENNAN J:   Then they look at the divergences in the first defendant’s different accounts.

MR WILLIAMS:   They did, your Honour, that is certainly so.

BRENNAN J:   And bear in mind that its ten years have passed, so that the advantages of seeing what a witness might look like in the witness box is somewhat diminished by the difficulties of recollection.

MR WILLIAMS:   That is certainly so, your Honour, but that is the same exercise the primary judge entertained and in respect of which he came to an entirely different conclusion.  The advantages, in our submission, are twofold:  one does not assess the creditable witness solely by reference to that witness, that is, what he says and how he says it in the witness box.  In our submission the assessment of credit is a process intertwined with all witnesses where the assessment of each proceeds collectively, if you like, once the evidence of all is heard and assessed.  In this case the majority seek to excise the defendant’s evidence as if it were simply never given, apart from these concessions, and having done so then proceed to other evidence which the trial judge accepted and then rely upon that other evidence.

If the fact-finding process has wholly failed, as Mr Justice Thomas has indicated, in our submission it has wholly failed with respect to all the evidence and not just the evidence of the defendant.  In those circumstances it is unsafe to proceed as if the defendant’s evidence simply did not exist, and unsafe to proceed on other evidence and findings of the primary judge.

We submit, in those circumstances, that a retrial is the only order which can do justice between the parties.  We submit that anything less than a retrial leaves open the possibility of unfairness to the applicants and, in our submission, that possibility of unfairness is the principle which requires a retrial.  It is the principle which, in our submission, emerges from Pearlow v Pearlow, to which we refer in our submission, where Mr Justice Dixon proposed a retrial of a refusal of a discretionary remedy on evidence left in a wholly unsatisfactory state by an adverse determination on veracity.

BRENNAN J:   In a matrimonial case.

MR WILLIAMS:   In a matrimonial case, your Honour, yes.  He did so, your Honour, in terms which give us some comfort, in our submission.  May I read, your Honours, a very short passage from that judgment.  It appears at page 83 of the report and his Honour said, after discussing the inadequacy of the evidence before him - just over half-way down the page:

But to justify an order for a new and further investigation of the case it must be enough that it can be seen that on the inadequate materials before the court it may so result.

The “it” is injustice.  If it can be seen that on the inadequate materials before the court injustice may result by not ordering a retrial, in our submission, a retrial must be ordered.  The possibility of injustice, in other words, in our submission, is the principle.

That is supported, in our submission, by the decision of the Queensland Full Court in De Clara v The Commissioner for Railways.  There the judgments of Mr Justice Stable and Mr Justice Dunn are relevant.  Each found it impossible to deal appropriately between the parties in circumstances where findings of credit by a trial judge were contradicted by the objective evidence of photographs taken on the day of the accident.  Mr Justice Stable, after reviewing those matters, at page 119 of the report, simply said:

I find it impossible to adopt the usual course of trying to mend the case on the record. 

He felt the only practical course was a retrial.  Mr Justice Dunn was a little more full in his reasons.  At page 121E, he said:

Because it is in my opinion impossible satisfactorily to reconcile the photographic evidence with the evidence of witnesses accepted by His Honour, I am unable to form an opinion on this aspect of the case which I could regard as certainly fair to both parties.  Consequently, I think that there should be a new trial. 

Your Honours, we also rely on the decision of this Court in Jovanovic v Rossi where this point did not arise directly but where, in our submission, the result and the reasoning of the Court, which appears in the passage at page 525, in ordering a retrial, support that conclusion.

We submit the evidence here, if the defendant’s evidence is rejected, is left in such an unsatisfactory state that there can be no certainty of fairness to the parties, other than by a retrial, and that the possibility of injustice exists if there is an attempt to mend the case on the record on very slim and unsatisfactory evidence. 

Your Honours, in our submission, that is the special leave point and the point on which the appellate court in this State requires direction and, in view of the absence of authority throughout the country, so far as we have been able to determine it, it is a matter upon which all appellate courts require the direction of this Court.

May we say finally, your Honours, that the majority, in our submission, were in error in proceeding as they did with a view to expedition rather than in compliance with proper principles.  At page 19 of the record, your Honours will see at about line 7 this statement as appears in their judgment:

However, an appeal court is justified in adopting a particular and undoubtedly less usual approach when it is presented with a problem which calls for a special solution.

In our submission, neither Chambers v Jobling or Whitehouse v Jordan supply any authority for that proposition.  In our submission, expediency as to length of trials or costs is not a substitute for the proper application of principles in circumstances such as this.  If this Court has not pronounced then the Court of Appeal should determine the principle for itself and then be subject to correction by this Court.  In our submission, special cases make bad law and the order to which the majority then proceeded is such a matter of bad law.  I do not know that I can assist your Honours further.

BRENNAN J:   Thank you, Mr Williams.  We need not trouble you, Mr Hanson. 

The reasons for judgment of the majority of the Court of Appeal do not reveal any error of principle.  The law relating to the review by an appellate court of the findings of fact by a trial judge are well established.  The proposed appeal involves no more than the application of the law to the particular and unusual circumstances of this case.  It is not a case for the grant of special leave.  Accordingly, special leave is refused.

MR HANSON:   We ask for costs, if the Court pleases.

BRENNAN J:   You have nothing to say about that, Mr Williams?  It is refused with costs.

AT 12.33 PM THE MATTER WAS CONCLUDED