Eicas v Dawson

[2017] HCATrans 165

[2017] HCATrans 165

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A4 of 2017

B e t w e e n -

EDITE EICAS

Applicant

and

PETER DAWSON

Respondent

Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 18 AUGUST 2017, AT 9.56 AM

Copyright in the High Court of Australia

MR M.C. LIVESEY, QC:   If the Court pleases, I appear with MR B.J. DOYLE for the applicant.  (instructed by Finlaysons Lawyers)

MR W.J.N. WELLS, QC:   May it please the Court, I appear with my learned friend, MR S.A. McDONALD, for the respondent.  (instructed by Alessandrini & Co)

NETTLE J:   Yes, Mr Livesey.

MR LIVESEY:   If the Court pleases.  A central feature of the adversarial system is that the parties select and argue the issues before an impartial adjudicator.  The first point raised by this case raises a challenge posed by the prevalence of unrepresented litigants on appeals, in particular, how should the appeal court conduct an appeal where the unrepresented plaintiff to that appeal makes no meaningful submissions whether in the notice of appeal or in the outline of argument and does little more than simply complain about the result.  How should the represented defendant, the respondent to that appeal, respond when asked to go first in order to assist the Court, only then to be confronted by issues without notice and without regard – issues being articulated without regard to the way in which the trial was conducted below?

GORDON J:   Did your counsel at the - object to the Full Court’s way in which it was handling the matter?

MR LIVESEY:   I am grateful your Honour raised that.  The question here is, is the defendant to be at risk of being charged with having waived those rights merely because the defendant’s counsel engages with the court, answers the questions and deals with the questions being raised by the court, even in circumstances where it is not clear what the significance of those questions will be, unanchored from any appeal ground and in circumstances where there is no precision certainly as to the findings which were being contemplated and there is no proposal regarding an amendment to the notice of appeal.

NETTLE J:   Well, it is not beyond the wit of counsel to say to the court, “Look, I’m not prepared to deal with those matters because no notice of them has been given”, is it?

MR LIVESEY:   Certainly.

GORDON J:   Especially when one of the issues before the court was whether or not there was to be a finding of contributory negligence which required assessment, as I understand it, by the court of all the facts, given that was one of the grounds of appeal.

MR LIVESEY:   Well, with respect, the grounds of appeal did not travel much beyond a complaint that the principles of equity, however they were to be implied to motor accident cases, had not been observed.  So there was simply no assistance apart from, as I have submitted, a complaint about the result.

GORDON J:   Is that right?  I thought that there was a requirement for it to undertake an assessment of the question of contributory negligence.

MR LIVESEY:   No, with respect, if your Honour – could I invite you to page 57 of the application book, and there one sees the submissions, in effect, in the notice of appeal concerning this issue.  The precise findings that the appeal court ultimately made concerning the “one metre” finding and also the “sharp veering” finding are not addressed at all.

GORDON J:   I am sorry.  Can we just not take one of the subparagraphs out of context, I think.

MR LIVESEY:   Certainly.

GORDON J:   If one looks at this, at the bottom of page 56, there is a complaint about the finding of contributory negligence and then a whole range of matters identified leading to a conclusion that it was wrong.

MR LIVESEY:   Yes.

GORDON J:    So was not the Full Court obliged to undertake an assessment of the facts, referable to that ground of appeal, however it has been framed?

MR LIVESEY:   With respect, no.  The subparagraph provided the issues which the appellant wished to agitate.  What the appeal court did is disregard those issues and agitate other issues, which were not articulated on the appeal and certainly never found their way into any amended notice of appeal.  So counsel was in the invidious position of not really knowing where the appeal court was going.  Was it simply exploring factual uncertainties or was it articulating in a serious way an alternative approach?

GORDON J:   What about 3.11.4?  Is that not directed precisely at this question of the distance between the two vehicles?  It may not say it in language that you and I would put it, but it is technically dealing with the extent to which they are within a certain distance – whether the lanes could be used, whether she looked to get a clear view?

MR LIVESEY:   Well, with respect, no, because all that deals with is negligence, and negligence was conceded.  What it does not address is the conduct of the plaintiff and, in particular, what the Full Court overlooked was the way in which the trial was conducted below.  The way in which the trial was conducted was that the plaintiff asserted that he was drawing level with the defendant’s motor vehicle, that they were doing broadly the same speed.  He did not observe any other vehicles, he did not observe any indication and it was his case, his primary case that in that setting the movement across his path was entirely unexpected. 

The trial judge rejected that and the trial judge rejected that, in part, because the trial judge accepted that by the time the defendant saw the park and commenced her manoeuvre, the plaintiff was very close to the rear corner of the defendant’s vehicle – that, indeed, being the submission made by plaintiff’s counsel at the trial.

GORDON J:   Sorry – I understand.  It is difficult to pick out things but I had understood from Justice Lovell’s judgment at paragraph 44 on page 76 of the application book that, in effect, counsel for the respondent had conceded that the distances were incorrect and in a sense asked the Court of Appeal to redo that exercise.

MR LIVESEY:   No, with respect.

GORDON J:   What is the concession?  His Honour says:

They cannot, as a matter of logic stand together.  So much was conceded by . . . counsel for the respondent.

MR LIVESEY:   There was never any question that the differential in speeds was ever the subject of challenge.

GORDON J:   And distances – and distance, therefore.

MR LIVESEY:   That was the issue.  Can I briefly recapitulate the facts?  As the Court would be aware, North Terrace runs along the northern boundary of Adelaide.  Frome Road travels down from North Terrace towards the River Torrens.  The defendant had, on a right arrow, moved into and down Frome Road in a two‑lane roadway.  The right lane was clear.  She was followed by two or three cars.  The left lane was partially obstructed by a line of parked cars, so only the right lane could be traversed by cars.

After the change of lights, the plaintiff, on his new, powerful motorcycle, came over North Terrace down into Frome Road, following the defendant.  On the defendant’s case, she slowed twice, looking for parks to her left.  The first time she slowed she indicated, realised that it was not a park but merely one of the entrance ways to the University of Adelaide.  She continued travelling slowly, as she described it at “nanna speed”.

She continued at about 35, 40 kilometres per hour until she saw another park.  She slowed to 20 kilometres per hour, indicated and then commenced to manoeuvre.  Whilst that was occurring the plaintiff, on his motorcycle, was moving through the narrow gap of about one and a half metres left between the edge of the parked cars and the white dividing line.  There was only 25 to 30 centimetres between the edge of his handlebars and the white line.  It was a narrow gap. 

He was gaining on the defendant all the while and ultimately intending, what might be described colloquially, to shoot the gap, to move through that gap and pass the defendant’s motor vehicle on the nearside.  It was at that point that the motor accident occurred, about 200 metres down the roadway.

The significance of the finding about one metre was that it was exculpatory of the plaintiff, because it served to answer the criticism that was being made that the plaintiff ought to have seen the defendant’s left‑hand indicator.  So, rather than this being as Justice Lovell describes it at paragraph 49, on which the contributory negligence conclusion was based, it was a finding exculpatory of the plaintiff on the principal case that was being mounted against him.

The difficulty with the finding that Justice Lovell made is that his Honour fails to have regard to the consequences of rejecting the one‑metre finding, which was the way in which the plaintiff’s counsel conducted the case, and found that it must have been that the motorcycle was a few seconds and a few metres further to the rear of the defendant’s motor vehicle.

GORDON J:   But the reason why that is not unimportant is because there are a number of findings that the motorcycle was not driving illegally.  He was entitled to be in that lane.

MR LIVESEY:   Yes.

GORDON J:   There were a whole lot of other findings about the way in which people could drive in the lane, he was not driving at excessive speed – all of these other findings that sit with the additional findings made by Justice Lovell which make it difficult.  That was the assessment and task the Court of Appeal had to undertake.

MR LIVESEY:   With respect.  What his Honour Justice Lovell does not appreciate and does not bring to account is the significance of the rejection of the finding regarding one metre.  Once that finding is rejected, once that is jettisoned, not only does one move away from the way in which the trial was being conducted on behalf of the plaintiff, but one needs to grapple with and address the significance of being, as Justice Lovell said in the course of argument, about 30 metres from the defendant - in other words, a distance where one could see the left‑hand indicator of the defendant’s motor vehicle.  None of that is brought to account.

GORDON J:   Well, I think it might be in the context of – there is a whole lot of assessment in the sense of the motorcyclist’s conduct.  As I said, a finding of not excessive speed, entitled to be in that lane, driving, and in a sense giving itself opportunity or not to see the indicator.  They are set out in some logical order by reference to legality and also conduct.

MR LIVESEY:   With respect, no, they are not.  What the Full Court does, in the decision of Justice Lovell, is start from that launch point – that is, the rejection of the “one metre” finding which, in my submission, was a wholly erroneous basis to revisit and reopen the analysis and then move into what was described as rapid veering, rapid sudden movements.  There was no factual basis for that.  Indeed, when one comes back to the trial judge’s assessment of the evidence of Tieri, the witness that Justice Lovell found upon, in particular at paragraph 25, application book page 11, what she says is:

I could see what was about to happen . . . it wasn’t like a sudden turning it was – it was gradual but quick – the two don’t go together . . . it wasn’t a sudden jerk of a movement –

So there is no factual basis for the assertion that Justice Lovell makes in those passages and the idea that all of this was unexpected is wholly inconsistent with Tieri’s evidence that she can see that this was about to happen.  Perhaps more importantly, that finding about a sudden veering and an unexpected movement is wholly inconsistent with the evidence of the defendant and her two passengers, whom the trial judge preferred.  He found that the defendant was a good witness.  Her two passengers were excellent witnesses and they consistently described the vehicle travelling slowly before the indication, before the movement.

NETTLE J:   Mr Livesey, accepting, subject to what your opponent might say, that you make some good points it really comes down in the end to error in findings of fact, does it not?

MR LIVESEY:   No.  There are two errors of principle, in my respectful submission.  The first is the decision by the appeal court to enter the fray.  That of itself is objectionable.

GORDON J:   I do not understand what principle - I mean, putting it a different way:  if the Court of Appeal had been faced with a challenge to a finding of contributory negligence, as it was in general terms in 3.11, would not the complaint be well, you did not undertake an assessment of the facts in order to work out whether or not that finding was possible or not?  If you turn it on its head it is a very odd result that the Court of Appeal would not do so.  How do you assess it, absent of a consideration of all of the facts?

MR LIVESEY:   Can I deal with that in two steps.  The first is the finding made by the trial judge that the motorcyclist, in effect, shooting the gap, travelling lawfully but taking a great risk on a motorcycle, through a very narrow gap, posed by parked cars ‑ ‑ ‑

GORDON J:   No, we are not talking about factual; we are talking about process here.

MR LIVESEY:   The point that has been made is that the ultimate decision by the trial judge is entirely unexceptional.

GORDON J:   No, we are talking about process of the Court of Appeal.

MR LIVESEY:   The Court of Appeal seems to have taken up the cudgels on behalf of the unrepresented litigant and without notice to the represented party put a series of propositions and argued those propositions.  Either the appeal court should only have decided the case by reference to the notice of appeal because that was the procedural context in which a review of the facts was to be undertaken.  It was not a review at large.  Or, as is sometimes done, the appeal court could have put forward an issue and invited consideration of that issue, usually in writing.

GORDON J:   Are those complaints met or answered in whole or in part by the following facts – that is, as I understand it, counsel who appeared at the time were given a right of reply and, secondly, they were given time overnight, an adjournment, to consider the issues raised by the Court of Appeal?  There may be other facts and matters but, on my assessment, they seem to be at least two matters, if there was substance in your complaint – I am not saying there is – that would provide at least a part answer.

MR LIVESEY:   No, all that does is raise whether and to what extent a represented party in these circumstances where issues are circulating, entirely unanchored from any ground of appeal, need to be addressed or the subject of an objection.  Counsel, as I have submitted, is in the invidious position of not actually knowing where this was going.  Was it going to lead to alternative findings?  If so, what were those alternative findings?

NETTLE J:   Mr Livesey, he did not say so.  He did not say, “I’m concerned about all of this, your Honours.  I don’t understand why you are asking me these questions.  They don’t appear to me to relate to the issues in any way.”  Au contraire, he joined in the debate and made submissions, as if to indicate that he was prepared to do so.

MR LIVESEY:   It is one thing to engage in debate, particularly where counsel has been invited to go first, to assist the court.  Once that process starts it is very difficult to know exactly where it is going when there is no clear articulation of the issues.  All that has been done is factual issues are being explored.  Let me illustrate ‑ ‑ ‑

GORDON J:   Do they make application to the Court of Appeal again to have the matter relisted for hearing in relation to matters that were not subject of debate?

MR LIVESEY:   With respect, where it is the question of the appeal court raising the issues of its own motion ‑ ‑ ‑

GORDON J:   This is your complaint?

MR LIVESEY:   Yes, and particularly raising issues which are inconsistent with the way in which the case was conducted at trial.  If the plaintiff had been represented on the appeal and these issues had been agitated in a ground of appeal or in an outline of argument one could readily expect that the usual principles would apply, Metwally’s Case would be raised, there would be issues about whether and to what extent that would be permitted on appeal, and there would be a question about whether that, having been raised, inconsistent with the conduct of the trial, there might be waiver on the part of the other party. 

But where it is being raised by the court, the extent to which Metwally’s Case applies to the court’s approach is entirely uncertain.  The extent to which the court is expected to be the subject of an objection by counsel, again, is uncertain.  These principles have not been thoroughly worked through in this context.

GORDON J:   I know what the context means.  I mean, they have been worked through to this extent that, we know from Neil’s Case, the extent to which a court assists a litigant in person is dependent upon the circumstances and facts before the court at the time because they will vary from litigant in person to litigant in person.  We have all seen it.  We have all had to deal with it.  Here, a course is adopted, which is not unusual, asking in a sense the respondent to go first.  There is a pleaded ground of contributory negligence.  You say it is not particularised sufficiently.  There is debate and issue about it before the court.  By then, they are given time overnight to consider the issues raised.  They are given a right of reply.  It is difficult to see what else could have been done, putting aside your objection complaint about the court’s approach on the issue itself, the substantive issue.

MR LIVESEY:   I will come to the substantive issue in a moment, if I may, but in terms of what the court should have done, it is very clear, in my respectful submission, as the cases to which we have referred show, and the cases to which my learned friend has referred show, if the appeal court is seeking to raise an issue it would ordinarily do so by written notice so that there is no risk of a denial of procedural fairness, so that it is clear that these issues are going to a ground of appeal.  Your Honour says that the notice was inadequately particularised ‑ ‑ ‑

GORDON J:   I did not say it was inadequately – I said there were some – you complained about particularisation, but there was a ground of appeal about contributory negligence.

MR LIVESEY:   All it did, in my respectful submission, is effectively complain about the result and ask that it be different.  The intermediate steps which would inform that process were not articulated in the notice of appeal, nor were they articulated in the outline of argument.  To the extent that the court was asking questions about these matters the appeal notice was never amended.  It was never made clear what the significance of these intermediate factual findings might be.

Can I emphasise one thing very quickly.  It is one thing to say that the motorbike might have been a few seconds or a few metres further back.  It may be, ultimately, that that makes no difference to the ultimate result.  Indeed, that is what Justice Lovell finds.  He finds that in his reasons, in particular, at paragraph 57, application book 79.  If that is right, if it made no difference, then it was no basis to intervene.  It was an erroneous basis for intervention. 

What has occurred, because of the way in which this case has been conducted, because it has been taken up on behalf of an unrepresented litigant, is that, to use the vernacular, it has gone off the rails.  There has been a distraction into the issue about the “one metre” finding when, in truth, the true basis for the finding of contributory negligence was the anterior conduct in deciding to shoot the gap in the first place, to take, whilst lawful, what was undoubtedly risk‑laden and careless activity because whilst his Honour Justice Lovell describes this in terms of general risks, with great respect, that does not do it justice.  These are obvious risks. 

There are car doors to the left that might be opened by those exiting motor vehicles.  There are exits and entrances to the university on the left. 

There is only one lane through which they can be accessed and that is the right lane.  What the plaintiff is doing is travelling through a very narrow gap and passing a slowing vehicle and giving no thought ‑ on the findings, because he did not notice that it was slowing – giving no thought whatsoever to what the lead motor vehicle, the defendant’s motor vehicle, was doing.  He was careless.

In those circumstances, for the appeal court to say, with respect, blithely, that the plaintiff could assume that the defendant would take care is an error.  It is not only an error on the facts, but it is an error in principle because it fails to have regard to the requirements of the Civil Liability Act, the broadly uniform…..legislation and the requirements in particular of sections 31 and 32, which require an addressing of the issues raised in the legislation, such as whether the risk was foreseeable, whether the risk was not insignificant and whether a reasonable person would have taken precautions in circumstances where the obvious precautions were simply to stay to the rear or, indeed, stay in the right lane and out of risk.

NETTLE J:   Assuming all that is correct it is really visitation jurisdiction, is it not?

MR LIVESEY:   It is, but in the interesting context – two points about the context.  First, is the really unfair intervention by the appeal court in embarking on this and not facing up to the true basis for the contributory negligence finding because of the distraction caused by the “one metre” finding and, secondly, in circumstances where this broadly uniform legislation intersects with much older authorities, such as Sibley v Kais, and defensive driving authorities which have not been reviewed by this Court.  Certainly, this Court has made no determination in terms similar to Sibley v Kais, that being a case decided 50 years ago, only on an application for special leave to appeal.

So it is true, and we embrace the concept that there is underlying error which can be corrected, but we say that the two interesting contextual issues provide a suitable vehicle for this Court to correct that error and to provide guidance, not only to appeal courts about how they should conduct appeals when beset with the obvious problems caused by unrepresented litigants not articulating their cases, but also in circumstances where there is the uniform legislation and the intersection with the older authorities.

NETTLE J:   Thank you, Mr Livesey.  Mr Wells.

MR WELLS:   May it please the Court.  The procedure adopted by the Full Court, we submit, was no doubt an acknowledgement of the limited assistance they could expect from the unrepresented plaintiff at the time.  But the fairness of the procedure to the represented applicant is not, we submit, to be assessed by reference to the plaintiff’s lack of representation.  The fact of the matter is that the Full Court was faced with a fairly glaring finding, which was in error. 

It came down to this, that the trial judge had taken the view that the contributory negligence was based upon the conclusion to which he had come that the plaintiff on his motorcycle was in the defendant’s blind spot, even though interestingly enough she had not looked in her left‑hand mirror.  Nevertheless, the conclusion was that he should have been aware that he might be in that blind spot and that was based entirely upon a conclusion that the motorcycle was almost on the left‑hand rear of the vehicle, the defendant’s vehicle.

That conclusion could not stand by reason of two matters which were the subject of limited findings by the trial judge.  One was that there was a differential speed – that is, that the plaintiff was closing on the defendant’s vehicle.  The other was that the point of impact where the damage occurred was not, as one might expect if he had been in the blind spot before the manoeuvre by the defendant commenced, which would have been towards the front of the turning vehicle, but the point of impact was at the rear of the turning vehicle.  That must have meant that, given the differential speed, the motorcycle was further back than the trial judge had concluded.

Now, here lay the problem.  Here is the Full Court with no assistance other than the complaint from the plaintiff that there was an error about the finding of contributory negligence.  There was one matter of interest in the notice of appeal, which I will come to.  But he had raised that point.  The Full Court in its own reading had identified what seemed to be an insupportable finding.  What were they to do given that combination of events? 

The procedure, we submit, that they adopted was the only efficient and effective way of raising the matter, because that is what they did.  They raised it.  It was not a matter that was going to be raised by the unrepresented litigant so, exercising their full powers of control over their procedures, they preferred the efficient approach, which is to say, “Here’s an issue.  Let’s hear, first of all, what the respondent” – that is, the defendant – “wants to do about this”.  It is put to the defendant’s counsel and the issue is specifically raised.

The defendant’s counsel does not put his hand up and say, “Where’s that in the notice of appeal?”  He does not say, “I can’t deal with this because I’m not prepared to deal with anything other than the grounds of appeal”.  One only has to look at the written outline, which is not before this Court, that he provided to the Full Court to see that he had gone into the evidence on these very topics with great care, so he was himself prepared, as one would expect not only an appeal counsel but a counsel who had been the trial counsel as well to be prepared about those matters, and he responded, not out of desperation but because he was very acutely aware of what the issue was. 

There was not any question about not understanding what issue was raised; here was a problem about a finding of fact.  His first response was not, “I object, there’s no ground of appeal on this.  I want time to consider this.  Can we get an adjournment?” - none of those things.  His first response was, “You’re right”.  He says that not once but many times:  “You’re right, that can’t be supported”.  Next question from the court:  “What should we do?”

GORDON J:   “What follows from that fact”?

MR WELLS:   Exactly.  “What follows from that fact and what do you say we, the Full Court, should do about how we now approach this where there is a view, which you’re not opposing, but there is an erroneous finding of fact?”  So if we, therefore, posit the alternative finding of fact, which would be “He must have been a little bit further back” the question might then arise, for example, “Well, if there was an indicator put on, perhaps he was in a position where he could have and should have seen the indicator”.  So, that is canvassed and the question is put to counsel for the defendant:  “What do we do about this?  Do you suggest that we send it back for a retrial on the basis that this is an erroneous finding of fact?”  Response from the defendant’s counsel is not yes but, in effect, “That’s the last thing we want you to do.” 

“Well, what do you think we should do then, make our own findings of fact?”  “Yes.”  So the response that comes from counsel for the defendant is none of the alternatives that he had but one of saying, “I acknowledge that there is an error here.  You could send it back.  We don’t want you to.”  All that must mean then is that “You must make the findings of fact”.

Now, that was how the defendant responded to an issue which, in our respectful submission, the Full Court could not overlook.  It was not a matter, in our respectful submission, for the Full Court to say we see this problem here.  We are not sure how it can be said that the plaintiff was that close to the rear of the vehicle at the point before it changed direction.  What do we do? 

Do we overlook that because it has not explicitly been raised in the notice of appeal, drawn by an unrepresented litigant, or do we respond to that and discharge our duties as an appellate court by determining, first of all, whether there is this error and, secondly, whether if there is an error it should result in a retrial or if it is not to result in a retrial whether we should continue to discharge our duties therefore by making what findings of fact we can, based on findings that the trial judge made about the credibility of witnesses and the consequences, if you like, the inferential or logical consequences that can be drawn from the speed differential, the evidence of the onlooker, Ms Tieri, who was of course watching it happen from the other side, the northern side of these events, looking onto it.

Her evidence was “What I saw was something that was inevitable.  It was going to happen” was the way she put it.  Her description of the change of direction was not that it was, if you like, violent or vigorous but that it happened with no warning and there was a clear – she calls it a veer into the left‑hand lane, but it was a clear movement and she identified immediately that something inevitable was going to occur as a result of that.

So the Full Court is faced with varying evidence and not too many findings from the trial judge about the speed differential, but it is clear that the plaintiff is travelling slightly quicker than the defendant’s vehicle.  But he has been, as it were, coming down Frome Road, initially well behind the defendant and gradually closing on her because of that speed differential.

If the Court were to take up the appeal book at page 16 in the judgment of the trial judge, the one thing, in our respectful submission, that seems to be clear, at least from his Honour’s view of it, is in paragraph 51.  I do not read the whole of it, but the second part of that paragraph:

I find that she was braking and decelerating as she indicated and then moved left.

If we combine that finding with the evidence of Ms Tieri, which found favour, for the most part, with the trial judge ‑that is, she was regarded as a credible witness – the picture that we can see is exactly the one that is painted by the Full Court in Justice Lovell’s judgment, of a defendant who sees the car park and moves to get into it in one movement.  The one movement is decelerate, indicate, change direction.

Now, if you have, at the time that is happening, a motorbike closing from the rear in a lane which he is entitled to be in, in circumstances where the defendant herself conceded that she was aware that that lane was a lane that cyclists use – so if one reverses that and asks the question which the trial judge sought to ask, and that is should the plaintiff in his position have assumed that the defendant would be unaware of his presence, the answer is he was not required to assume that the defendant would be unaware of his presence.  She was herself aware that that was a lane used at least by bicycles, but notwithstanding that she did not look. 

Of course, that is the negligence issue.  But from his point of view nothing had occurred which would have alerted him as he was travelling down Frome Road to even other than the theoretical risk that she might change lanes for some unknown reason.  The fact that he was aware of a risk of car doors opening is irrelevant, in our respectful submission.  That is not a risk that was causative in any kind of way at all. 

The question was whether there was anything that ought reasonably to have, as it were, put him on notice that this change of lane was a reasonable risk that he ought to have taken precautions about.  The only explanation that is offered to support a proposition of that kind is that earlier on she had been looking for a park and had slowed down and indicated.  But what we do not have are findings by the trial judge as to where the plaintiff was when that happened. 

So there is nothing to indicate whether the plaintiff was even aware of those earlier manoeuvres.  All he is aware of is that he is travelling down a lane he is entitled to be in and there are vehicles on his right.  It cannot be suggested that, simply because there are vehicles on his right, he ought to slow down so that he is not passing any of them.  I do not mean “passing” in the true road‑rule sense but simply moving more quickly in his lane than they are in theirs.  It cannot be suggested, as ultimately the defence counsel contended, that he should not have been in the lane at all.

If one takes those matters out of contention then, in our respectful submission, the conclusion that Justice Lovell came to was inevitable and the only alternative, which was not one that the defendant’s counsel contended for, was that it be sent back for a retrial because of this one clear error in the finding of fact in a bundle of findings which actually did not cover the field, as it were.

In our respectful submission, even if there are principles that might relate to how a court should conduct itself when there is an unrepresented litigant, in our submission the Full Court in this case acted entirely properly.  It is wrong to describe them as having entered the fray, just as, in our respectful submission, it is wrong to describe the manoeuvre of the plaintiff as shooting the gap.  That is a misdescription of what was going on on the road at that time. 

The Full Court, having control of its own procedures and making decisions about how most efficiently and fairly to deal with the case that was before them, took steps that did not jeopardise or compromise, in our respectful submission, in any way their independence and impartiality.  They had to do something in order to engage with an error which they themselves perceived but which the unrepresented litigant was not in a

position to be able to draw their attention to.  In our respectful submission there is no ground for special leave.  May it please the Court.

NETTLE J:   Thank you, Mr Wells.  Mr Livesey, any reply?

MR LIVESEY:   Yes, two points, if I may.  It is said that this was an issue that could not be raised by the unrepresented litigant.  Well, it could not be raised because it was inconsistent with the way in which the case was conducted at trial.  My friend says that the “one metre” finding was a glaring error, that it was insupportable.  It was the finding for which the plaintiff’s counsel contended for at trial and secured. 

My friend says that defence counsel at the appeal invited the court to make findings if it was going to make findings.  The answer to that is that the court did not make findings.  All it did was reject the “one metre” finding, make a finding about 30 metres or thereabouts, and never deal with the consequences of that finding, given the indisputable fact of the indication.

The second point is this.  This was the basis for intervention - the “one metre” finding was the basis for intervention.  Ultimately Justice Lovell, at paragraph 59 of his reasons, despite all the heat and light about this issue, says:

if he was a few metres further back makes no difference to the question of contributory negligence.

So the sole ground for revisiting the trial judge’s decision is ultimately discarded as making no difference.  It is inescapable that this was a flawed and inappropriate intervention by the appeal court. 

Finally, my learned friend says that there were no findings to show what the plaintiff knew at the relevant time.  The findings were inescapable.  Over a course of 200 metres the defendant was travelling slowly and the plaintiff gained on the defendant and was about to pass her when the motor accident occurred.  All of that occurred in circumstances where, according to the plaintiff, he had no inkling whatsoever that there was any risk.  That is simply unsustainable.  A slowing vehicle, a line of cars that one is about to pass on the near side shows in and of itself that there is a great deal of risk and carelessness associated with moving through that very narrow gap.  In my respectful submission this is an appropriate case for special leave.

NETTLE J:   Thank you, Mr Livesey.

The Court is not persuaded that this application for special leave sufficiently discloses a question of principle of general importance or that the interests of justice otherwise require consideration by this Court of the judgment to which it relates.  The application is thus dismissed.

Do you seek costs?

MR WELLS:   We do, if the Court pleases.

MR LIVESEY:   No objection.

NETTLE J:   The application is dismissed with costs.

Thank you, gentlemen.

AT 10.36 AM THE MATTER WAS CONCLUDED