Dominican Fathers v O'Meara

[2004] HCATrans 442

[2004] HCATrans 442

IN THE HIGH COURT OF AUSTRALIA

Registry  No C1 of 2004

B e t w e e n -

DOMINICAN FATHERS

Applicant

and

SKYE HELEN O’MEARA

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 NOVEMBER 2004, AT 10.25 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   May it please the Court, I appear with MR G.M. GREGG for the applicant.  (instructed by pappas j. – attorney)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR E.G. ROMANIUK, for the respondent.  (instructed by Elrington Boardman Allport)

GLEESON CJ:   Yes.  Mr Jackson.

MR JACKSON:   Your Honours, the decision of the Court of Appeal of the Australian Capital Territory in this case, in our submission, has stretched the principle in Jones v Dunkel beyond its breaking point.  We would also submit that the way in which the Court of Appeal, or the majority, went out its task effected a significant injustice, because the basic facts upon which they decided the case were stated erroneously by them.

May I, for just a moment, go to the basic facts in support of both those propositions.  The respondent, as your Honours will see – I will give the reference in just a moment – was a resident student at a college of the Australian National University from 1994.  In the circumstances that are referred to at page 64, paragraph 40, she toppled over a balustrade on 25 October 1996.

GLEESON CJ:   Do you accept the critical question was as stated in paragraph 46 on page 66?

MR JACKSON:   Ultimate question, your Honour, yes.  The first sentence we accept, your Honour.  The second sentences raises a slightly different question.  Your Honours, could I just say this that the circumstances are referred to in paragraph 40 at page 64.  May I refer your Honours to those.  The balcony and the balustrade had been constructed in about 1967.  As the Master said at page 11, paragraph 22, there had been no earlier fall from that balcony since it had been constructed at that time.

The critical finding by the Master is at page 23, paragraphs 48 and 49.  Your Honours will see at the top of the page that his summary of the evidence was that:

the plaintiff has established that some students have sat on the wall, but the plaintiff has not established that this was known to the college authorities . . . I accept that all the witnesses were doing their best to be truthful, and that indeed some students have never seen anyone sit on the wall, and others have.

Your Honours will then see in paragraph 49 the conclusion, about line 19:

On the evidence I am not satisfied that the college authorities had actual knowledge that some students would engage in this activity –

and your Honours will see the remainder of that sentence, going over to the top of the next page.  Whilst there had been some form of bar – meaning by that, liquor premises – on the premises of the college since 1981, the bar, in the form it occupied at the time of the accident, was only established in the period 1989 to 1992.  That appears at page 11, paragraph 20 in the Master’s reasons. 

The college was one that held at any time up to 300 people, about 280 students and about 15 tutors.  The witnesses actually called on behalf of the college were Father Fowler, who had been at the college for the six months prior to the accident, first as the Deputy Master, then as the Master.  That is referred to, your Honours, at page 21, paragraph 45.  His evidence, one might have thought, was directly relevant to the question of the knowledge of the college in the period of the accident and the six months beforehand.

GLEESON CJ:   Was there any explanation of the failure to call any college authorities who would have had knowledge extending over the years before Father Fowler arrived?

MR JACKSON:   Your Honour, in relation to that, could I just say this.  One starts, really, with a situation where the bar itself was constructed in the form it was in 1992.  The accident happened in October 1996.  The plaintiff had been at the college in the years 1994, 1995 and 1996.  In respect of that period, evidence was called – the evidence of the Master, who had been there for the immediately preceding six months, the evidence of Ms Smith, who was a resident student and president of the Residents Association and was there during the same period as the plaintiff – her evidence is referred to at page 20, paragraph 43.  She covered the almost three years before the accident. 

Mr Isaacs was there in the same period.  He was a resident student and a part‑time tutor in that same period.  His evidence is referred to in paragraph 44, page 21.  There was some evidence from the Deputy Master of the college 10 years before, that is Master Connolly, page 22, paragraph 46, and there was evidence of there being no other accident in the 27 years before the respondent’s fall.

GLEESON CJ:   Who actually were the college authorities?  I mean, how many authorities were there?

MR JACKSON:   It did not really appear, your Honour.  What appeared was that there was a Master, a Deputy Master, the bar was operated at times by students operating it.  There were no doubt people who were cleaners.  There were people who were tutors who lived in.  But if one is looking for a college authority, as distinct from being the organisation which owned it and conducted it, there appeared to be a Master, a Deputy Master and the teaching staff, in a sense.

HAYNE J:   No evidence of any administrative head element within the college hierarchy?

MR JACKSON:   No, your Honour.  If I could endeavour to answer what your Honour the Chief Justice was putting to me before, what you had was a situation where evidence was given on behalf of the plaintiff by persons covering, in effect, the period 1994 to 1997.  Evidence was given to the contrary by persons covering the same period and persons of responsibility, the president of the Residents Association, a tutor and person who had been there at the same time, and the person who was the Master in the immediately preceding six months.

The views adopted by the Court of Appeal really are in a batch of about 20 paragraphs, initially, I am afraid, commencing at paragraph 60 at page 73.  I should perhaps also say, no witness for the present respondent gave evidence of events before 1994, so the only evidence from that side was from 1994 onwards.  One commences, really, at paragraph 60 on page 73.  Your Honours will see set out there the submission that was made on behalf of the present respondent.  If one comes to the essence of the reasoning on behalf of the majority, your Honours will see that commencing, in effect, at paragraph 63.

Your Honours will see there in paragraph 63 the finding or the reference to there being a practice of sitting on the ledge or balustrade.  That expression comes from the immediately preceding paragraph, where the evidence of the witnesses is summarised.  Our submission is that to describe the Master’s finding as the majority did in paragraph 62 and later – and I will give your Honours, very briefly, the references in a moment – as a finding that there was a “practice of sitting on the ledge or balustrade” significantly overstates the very limited finding which he had made, that finding being at page 23, paragraph 48.  Your Honours will see that in the first few lines.

The elevation of that finding to a practice continued throughout the reasons of the majority.  Your Honours will see it.  I referred to it in paragraph 63, and you will see it again two‑thirds of the way down paragraph 63 at about line 18.

HAYNE J:   What is the significance, if any, to be attached to page 22, paragraph 47, the second sentence?

MR JACKSON:   Your Honour, in the second sentence there is a discussion of the evidence, as it were, in‑chief.

HAYNE J:   Yes.

MR JACKSON:   One sees the evidence given and then one sees a discussion by the judge after paragraph 47, going on to paragraph 48, to a consideration of the results that flowed from it.  That involves – and your Honours will see the second half, for example, of paragraph 48 – the finding that he made did not go as far as finding that there was such a practice.  What he found was that some students had at times sat on the balustrade, but there is no finding about the frequency or anything of that kind. 

Now, if I could go back to page 73, paragraph 63, what your Honours will see is that at about line 12 there is a reference to:

the critical period, namely that between 1989 and 1993.

Your Honours, there was no evidence given of any practice at that time.  The evidence on behalf of the plaintiff commenced in relation to 1994 and that was what the evidence was given in response.  If one goes to paragraph 64 on page 74, you will see in the first few lines references again to the “practice”.  One sees, also, in the same paragraph, paragraph 64, a reference to, about line 9:

failure to lead evidence relating to the knowledge of those responsible for student supervision at the College prior to April 1996.

Well, your Honours, one does not have to call every possible witness.  No witness was identified as a person who had any special knowledge over and above the 200 and whatever it is students who might be there at any time and the 14 or so tutors.  The man who gave evidence, Father Fowler, had his office on the same floor and walked to and fro several times a day. 

Your Honours, could I refer also, without going into it at any length, to paragraph 65 to the reference to the “practice” in the last few lines.  In paragraph 66, it was said:

there was no secret about the fact that students were using the ledge to sit on.

But there was no finding about how frequently that occurred.  It may have been one or two over the years.  Then one comes to paragraph 68, about the fifth line:

When students regularly sit on a ledge, it may be presumed, in the absence of any evidence to the contrary, that this fact is known to at least some members of the College staff.

Well, if one makes that assumption, perhaps that is right, but the assumption was not established by the evidence.  Then, in paragraph 70:

Evidence from only two supervisors for limited periods was an unsafe foundation for a finding of lack of knowledge –

Then one sees, further down, about line 13:

the present case was one that cried out for the respondent to meet the appellant’s contention that there was a regular practice of students sitting on the ledge that must have been known to at least some members of the College staff.

Your Honours will see the same thing in the last four or five lines on the page.  But what their Honours do not seem to have appreciated is that there was evidence called from persons to whom I referred earlier.  There was not any identification of anyone who was a more appropriate person to call.

GLEESON CJ:   How long had the predecessor of Father Fowler been there?

MR JACKSON:   Your Honour, I do not think that appeared from the evidence.  It is clear, of course, in our submission, that one does not need, in compliance with the principle in Jones v Dunkel, to call every witness to events.  Could I give your Honours two references in that regard in decisions in the Court of Appeal in New South Wales.  One is a recent decision, Manly Council v Byrne [2004] NSWCA 123. which is the last case in the bundle your Honours have. The principal judgment is that of Justice Campbell, the other judges agreeing. After he discusses at some length the Jones v Dunkel principle, your Honours will see at the page – it is the last case in the bundle your Honours have.

GLEESON CJ:   Thank you.

MR JACKSON:   It should be, your Honour, the page which in the bundle is numbered 72.

GLEESON CJ:   My bundle of authorities ends with Payne v Parker.

HAYNE J:   The Chief Justice is specially favoured, Mr Jackson, with an abridged version.

MR JACKSON:   Your Honour, I am sorry.  May I give you another copy?

GLEESON CJ:   All right, thank you.

MR JACKSON:   Your Honours, I was going to refer to paragraphs 60 and 61, which form part of the discussion.  They appear at page 20 of the print of the case.  The question at issue in the case was whether two more witnesses should have been called on the question of whether a light was or was not on at a pool.  Your Honour, the page number should be 20 of the print of the case at paragraphs ‑ ‑ ‑

HAYNE J:   Page 71 and 72 of the ‑ ‑ ‑

MR JACKSON:   Yes, it is under a heading “Cumulative Witnesses”.  Your Honours will see there and the succeeding paragraphs – in paragraph 61, there is a recognition of:

[the] exception to the rule in Jones v Dunkel that:

The rule does not operate to require a party to give merely cumulative evidence . . . If five people attended a relevant meeting and some are called, no Jones v Dunkel inference can normally arise – 

That view is dealt with in the succeeding paragraphs, and could I refer particularly to paragraph 63 and the quotation from Ballard v Lumbermens Mutual Casualty Co.  I will not read it out, but your Honours will see the first quotation. 

Another case on which a difference of view existed on whether more witnesses should or should not have been called is a reference we have given your Honours, Nuhic v Rail & Road Excavations [1972] NSWLR 204. Could I just say, your Honours, in that case the question was whether more people than the foreman looking after the work should have been called. Sir Anthony Mason, then a justice of that court, and Justice Jacobs were of the view that they need not be called. That is at page 209, at pages 30 and 32, I think, of the volume your Honours have.

Your Honours, our submission is that what was said by the President in the present case in the Court of Appeal in paragraphs 9 to 12 at page 50 was correct on the issue, a correct statement and application of the principle, and that the views expressed by the majority on it were incorrect. 

Could I just say that the majority’s reasons then go to make some very broad assumptions, not justified by the evidence.  Could I take your Honours to page 102, paragraph 113.  Your Honours will see the assumption that is set out there.

Your Honours will see also that the majority then engaged in what we would submit was really pure speculation.  You will see that in paragraphs 117 and 118.  In short, we would submit, the manner in which the majority dealt with the case was quite unsatisfactory.  Your Honours, those are our submissions.

GLEESON CJ:   Thank you, Mr Jackson.  Yes, Mr Walker.

MR WALKER:   Your Honours have seen, from the way my friend has presented it, that there is not issue taken with the self‑direction administered by the majority concerning the application and use in this case of Jones v Dunkel.  It is not clear, either from the written submissions or from the address, how one would identify the “extension”, as it is called in the written submissions, or “stretching”, as it was called in address, that is said to have been achieved by the majority.  There has been no statement which raises for the consideration of this Court a generally important question of how that principle ought to be stated and how one should go about applying it.  It is but a complaint about its application in a particular case. 

In that complaint, there is a focus upon what might be called the “discouragement” of cumulative calling of witnesses, a discouragement made clear by ensuring that the rule in Jones v Dunkel is not a cause for defensive lawyering producing a procession of witnesses, the addition of each successive witness being seen as truly unnecessary to the elucidation of the facts.

GLEESON CJ:   It largely seems to come down to the suggestion that the reasoning of the majority overstated the frequency with which, according to the evidence, people engaged in this activity.  I suppose that by “practice” they simply meant it happened frequently enough for people to do something about it, if they knew about it.

MR WALKER:   Not to be a one‑off.  There are two words in the learned Master’s judgment that really are at the heart of the complaint and we respectfully accept the way your Honour the Chief Justice has identified that aspect of it.  The first word is “common”, found in a passage to which your Honour Justice Hayne drew attention when my friend was on his feet, in paragraph 47 on page 22 of the application book:

four persons who were fellow students at the time who say it was common for persons to sit up on the ledge.

There is then specific attention given to Mr Mann, resulting in the other word that is relevant to this point found in paragraph 48, the third last line, where one aspect of one of those four witnesses’ evidence is described as “an embellishment”.  There is, of course, a third word that is important, also found in paragraph 48, and that is “truthful”:

all the witnesses were doing their best to be truthful –

Where the learned Master needed to determine conflict, he did so by describing the remembered incident of the Master actually talking to Mr Mann while Mr Mann was actually sitting on the wall as “something of an embellishment”.  That is all the learned Master said, apart from the otherwise global endorsement of the testimony before him as being the testimony of people:

doing their best to be truthful –

Now, it is true, logically possible, to be doing your best to be truthful and simply to be wrong or unreliable, but there is no finding of that kind here.  All one has is what is called in paragraph 47, page 22, “clearly a conflict”, and then there is a recitation, in very broad paraphrase, in a way that totally justifies the majority in their use of the word “practice”:

common for persons to sit up on the ledge.

Now, for those reasons, in our submission, it ultimately comes down to a case where these are the factual propositions which the majority were entitled, under Warren v Coombes, to take into account in considering the reasoning of the learned Master.  One, some students had seen others sitting on the wall, and we can add “commonly”.  Two, other students had not.  Three, however, some students had sat on the wall – see paragraph 48 – and no departure in the maintenance of that factual proposition from the evidence of the students who said that was common.

Pausing there, it means the fourth proposition is clear.  That there had been conduct to be seen is undoubted.  Unsurprisingly, not everybody sees or notices or recalls the same things as everybody else.  That does not doubt the existence of the phenomenon or the conduct, it simply says some witnesses have not seen it.  It is in that context that one then examines whether or not it would have been truly cumulative to call anyone apart from the gentleman who had been Acting Master for all but the month before the accident and Master for that month.  He had been there for six months in total.  He had not seen it.  He had seen something which was different but not entirely removed from it, leaning back against the wall, not very far from hoisting yourself up as the unfortunate plaintiff did.

GLEESON CJ:   Was there an argument against you to the effect that if the defendant had to cover a time period going back before Father Fowler’s arrival in order to deal with the factual case you were making, implicit in that is that it did not happen as frequently as at least once every six months?

MR WALKER:   That argument is not put in terms of what I will call that calculation of relative frequency.  That must be unavailable either in the Full Court or here, bearing in mind the learned Master’s finding.  True, it is not expressed in quantitative terms of frequency – why would such a phenomenon lend itself to a count – but they had been allowed to give their evidence and they were unchallenged about the commonness.  We have paraphrased and quoted that in our written submissions.

HAYNE J:   But also the proposition is one which would depend upon the unstated assumption that it is the Master, and only the Master, of the college who is in a relevant position of authority to notice, deal with, et cetera.

MR WALKER:   Quite.  True it is, there is a paucity of evidence that your Honour remarked on, I think, in questioning my friend in his address about that, but what we do know from the fact that a Deputy Master was called from 1981 to 1983 – so they went back to 1981, 1983 – his evidence was not particularly advantageous to the defendant because his was an inability to recall, rather than, as it were, a denial based upon frequent opportunity and non‑observation.

We know there was a man who had been a Deputy Master for all but the last month before the accident, and where there is a Deputy Master one may infer – certainly no explanations have been offered to destroy the inference that there is a Master.  We also know, as my learned friend points out, that there were ‑ ‑ ‑

HAYNE J:   You might also infer that to administer a college of 280 students ‑ ‑ ‑

MR WALKER:   Requires more than a chaplain.

HAYNE J:   We will not pursue that.

GLEESON CJ:   Thank you, Mr Walker.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, could I just say on the question of the practice, the finding that one sees at page 23, paragraph 48, inevitably involves, in our submission, not accepting that it was a common practice.  What the Master did was to set out the evidence of the various witnesses

and then make a finding which is rather narrower than the finding that seemed to be relied on by the majority in the Court of Appeal.

GLEESON CJ:   Thank you. 

This case does not raise an issue suitable to a grant of special leave to appeal and we are not persuaded that the interests of justice require such a grant.  The application will be dismissed with costs. 

AT 10.53 AM THE MATTER WAS CONCLUDED