Federici v Woods

[1990] HCATrans 255

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P7 of 1990

B e t w e e n -

FRANCESCO GINO FEDERICI

Applicant

and

LESLIE ROBERT WOODS

Respondent

Application for special

leave to appeal

MASON CJ

DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 25 OCTOBER 1990, AT 12.07 PM

Copyright in the High Court of Australia

Federici 1 25/10/90

MR M.J. McCUSKER, QC:  May it please Your Honours, I appear

for the applicant, with my learned friend,

MR M.J. HAWKINS. (instructed by Mccusker & Harmer)

MR K.N. ALLEN:  May it please Your Honours, I appear for the

respondent. (instructed by Messrs Phillips Fox)

MASON CJ: Mr Mccusker?

MR McCUSKER:  May it please Your Honour, I have prepared

outlines of argument that I have tendered,

Your Honours.

Your Honours, this may, at first sight, seem a

somewhat unlikely candidate for an application for

special leave -

MASON CJ: Well, I would agree with you so far in your

argument, Mr Mccusker.

MR McCUSKER:  - - - since it involves an accident, a

collision between two vehicles on a country road in

Western Australia, the evidence concerning which is

not at all complex.

The applicant was the driver of a motor

vehicle which was travelling west towards, but not

directly into, the setting sun. The respondent was

driving a Toyota, a larger vehicle with a tray on

it, directly east.

MASON CJ:  I do not think you need to recount the facts. We

are familiar with the facts and we have read the

judgments.

MR MCCUSKER:  May it please Your Honour. Then, Your Honours

will be aware that there are some unusual aspects

of this case. One aspect that is unusual is that,

although it is not absolutely unique, the plaintiff

gave evidence which was uncontradicted by the

defendant or any other witness as to where he was

when he was driving the vehicle, that is, on his

correct side of the road. That was supported by	the evidence of Keenan. It was evidence, though,
in the form of a statement taken prior to the
trial. Keenan at the time was suffering from an
illness which caused his death before the trial.

On the first trial of the claim, the learned

trial judge in the district court reserved his
decision for some six months and then decided
against the plaintiff on the question relating to

his credibility without making any assessment of

damages. That decision by the trial judge was

reversed unanimously on appeal by the appellate
court which, in our submission, took the correct

approach towards the role and function of an

Federici 2 25/10/90

appellate court when considering a finding of fact

by a primary judge. It was referred back, the

appellate court considering that it could not go on

to consider the evidence and make a determination

itself, for a retrial and at the retrial a

different judge hearing the matter made a tentative

assessment of damages but found against the
plaintiff for reasons which, in our submission, are
on analysis, if the appellate court were prepared
to analyse them, not tenable.

By way of example of the reasons given by the

learned trial judge, which were accepted by the
majority in the Full Court to which the applicant

again appealed, was the comment that he was a

dogmatic and aggressive person in his attitude. In

relation to that, Your Honours, with respect,

His Honour Mr Justice Rowland who dissented from

the majority on the further appeal and would have

found for the applicant and enter judgment in his

favour, commented that he did not see what an

aggressive or dogmatic attitude had to do with the

propensity to tell the truth or otherwise.

There were a number of other matters. For

example, Your Honours, the learned trial judge, on

the second trial, commented that the plaintiff's

version of the accident was intrinsically unlikely.

That seems to have been accepted without question

by the majority in the appellate court and yet

there is no, in our submission, intrinsic

unlikelihood about a vehicle colliding with another

by veering across the road and smashing into it, as

on the plaintiff's story, supported by Keenan, was

the case.

Apart from the evidence of the plaintiff which

the learned trial judge, in effect, rejected for

reasons which are, in our respectful submission, on

analysis by an appellate court, untenable, the
evidence of Keenan was subjected to some scrutiny.

Of course, it could not be subjected to a scrutiny

based on demeanour or behaviour or aggressive

attitude, but the learned trial judge said that it

seemed to have the air of reconstruction. Yet, as

His Honour Mr Justice Rowland pointed out, in both

examination in-chief and cross-examination Keenan had maintained quite clearly and firmly in answer

to questions that the plaintiff, the driver of the

vehicle in which he was a passenger, was on his

correct side of the road.

Your Honours, the applicant bases its

application for special leave on two propositions:
The first, that there are important questions for
consideration emerging from the majority of the

Appeal Court's judgment in this case, as to the

Federici 25/10/90

role and function of an appellate court when

reviewing findings of fact made by a trial judge.

That question, in our submission, is one of general

importance. I am aware that it has, of course,

been canvassed on a number of occasions but not in

respect of the questions which are raised

specifically here.

The second broad basis upon which the

application is made, Your Honours, is that in the

interests of justice in the circumstances of this

case, or administration of justice demand that the

applicant be given what he has so far not had and

that is a full review and analysis of all of the

evidence by an appellate court and the reasons

given by the learned trial judge for rejecting what

was uncontradicted evidence of the applicant,

reasons which, in our submission, if scrutinized

and not simply accepted as being, in effect,

unreviewable, do not support the view taken of the

plaintiff's evidence.

TOOHEY J:  Mr Mccusker, when you speak of the first point as

relating to the role of an appellate court on the

review of a decision of the trial judge, it is one

thing, perhaps, to consider that role where the

appellate court reaches a different conclusion; it

is another thing when the appellate court does no

more, perhaps, than uphold the decision of the

trial judge.

MR McCUSKER:  Your Honour, the approach which the majority

took in the appeal court was certainly upholding

the decision of the trial judge, in a sense; was to

ask the question whether there was any basis upon

which the decision of the trial judge should be

dissented from and that, in our submission, is not

an appropriate approach. The proper approach is to

review all of the evidence and reach a decision
giving due weight to the findings, certainly of the

trial judge, but nevertheless, to reach its own

decision on the facts presented to the court.

TOOHEY J:  Is that right? When the matter comes on appeal

before the Full Court, there have to be grounds of
appeal, there has to be a basis upon which the

findings are challenged. It is not simply left

with the Full Court to conduct its own review and

reach its own conclusions. So, the first hurdle

any appellant has to overcome in that situation is

to persuade the Court of Appeal that the trial

judge went wrong in some way, is that not right?

MR McCUSKER: Well, that is the question, Your Honour. That

is the approach, whether there is inherent in the
approach that Your Honour suggested, a suggested

presumption that the trial judge's decision is

Federici 4 25/10/90

right and one departs then and one leaves that

point to determine whether there is any reason why
the presumed correctness of the trial judge's

decision should be overturned.

TOOHEY J: But, must not that be the position? Otherwise

you would not worry about grounds of appeal, simply

hand the matter over to the Full Court and say,

"Well, here's the material, now let's look at it".

MR McCUSKER:  Your Honour, the authorities have a divergence

of approach in this area. There is one line of

authority which suggests that there is, in effect,

a presumption in favour of the correctness of the

trial judge's decision, but that line of authority,

in our submission, is unsupportable and is contrary

to the line of authority of which the Federal

Commissioner of Taxation v Clarke is one example.

TOOHEY J:  You mean, you do not have to show that the trial

judge went wrong? It is enough to persuade a court

of appeal that had the members of that court been

the trial judge, they would have arrived at a

different conclusion?

MR McCUSKER:	Yes, that is the submission.
TOOHEY J:	And is there authority to that effect?

MR McCUSKER:  I will take Your Honours to it, yes. I will

take Your Honours to - do Your Honours have volumes

of the authorities that we provided? I will take

Your Honours first to what was said in Federal

Commissioner of Taxation v Clarke, which is at page 81 .of the bundle of authorities, where two-

thirds of the way down that page, Acting Chief Justice Isaacs said:

A Court of appeal is not to consider whether

there is any evidence on which the verdict

could be reasonably based; it has to consider

whether it on the evidence would have come to

the same conclusion, and that is what the

appeal Court did."

TOOHEY J: That is a quotation, though, is it not?

MR McCUSKER: That is from Wilson v Kinnear, yes, but

His Honour was there referring to that, in our

submission, clearly with approval and if I could

refer Your Honours to other parts of that judgment.

At page 262, towards the foot of the page, the

Acting Chief Justice said:

I pass to the other issues. Before

entering upon those issues an important

question arises:  How far am I at liberty to

Federici 5 25/10/90

consider for myself the truth of the

respondent's story as to his dealings with his

family?

And he refers to the:

"prolonged observation" -

by the learned trial judge:

No doubt, as a general rule, credence so given

is to be accepted by a Court of appeal not

personally seeing the witnesses. But I am

satisfied both on principle and authority that

there is no rigid formula that stands in the

way. Such a formula might baffle justice

instead of assisting her. Whether a Court of
appeal can, consistently with its duty,

reverse a conclusion of fact by a primary

Judge depends entirely on the circumstances -

and we point to that as being, in our submission,
and what follows at pages 263 to 265, as being the

appropriate approach of the Court of Appeal, the

appellate body. This matter is of particular

importance in view of the practical fact that for

most purposes each State appellate court is the

ultimate appeal court. At page 263 of the report,

Rickmann v Thierry.
His Honour referred to trade marks jurisdiction of the court and I have a

supplementary bundle of material, Your Honours, and

if I could refer Your Honours to Dearman's case,

which is number 2 - I will not trouble you with the

supplementary bundle at the moment - on the

applicant's list of authorities, starting at

page 26. At page 560 of the report, the High Court

there - page 37 of the bundle, Your Honour -

starting at page 559, there is reference to

Rickmann v Thierry, where Justice Isaacs said:

In the course of argument learned counsel

urged that there was a question of fact

involved or that it was wholly a question of

fact, and that the appellate Court ought not

to reverse a finding on the question of fact.

Lord Halsbury L.C. took occasion to state the

law formally in his judgment. The report is

not so accessible as the reports of the House
of Lords usually are, so I will read in full

what was there said, because it completely

reaffirms in all its branches what is laid

down in Coghlan v Cumberland, and is a

decision of the highest authority.

And he quotes from Lord Halsbury:

Federici 6 25/10/90

I must add that I am entirely unable to yield

to the argument which has been, not
unnaturally, pressed upon us by counsel. I
say not unnaturally, since more than one of
the learned Judges have given countenance to

it by observations made in the course of their

judgments. I mean the argument that there is

a presumption that we ought not to interfere

with what the Judge of first instance has

done. I absolutely refuse to acquiesce in any

such argument -

and His Honour went on quoting.

TOOHEY J: There has been quite a lot of water under the

bridge since then, has there not? You really need

to look cases like Warren v Coombes and other cases

and the distinctions between findings of fact and

inferences and the like.

MR McCUSKER:  There has, Your Honour. Warren v Coombes,

however, does not really resolve this question.

Perhaps if I could now hand Your Honours a

supplementary bundle of authorities.

TOOHEY J:  I should say, in making that comment, I was not

inviting you to take us to them, Mr Mccusker, I was

merely suggesting that one might need to look more

closely at the law as it presently stands.

MR McCUSKER:  Yes. My submission is that there has been a

tendency to apply what Acting Chief Justice Isaacs

called "a rigid formula" to the point where the

right of appeal where there is a finding of fact by

the primary judge becomes illusory and that

tendency towards rigidity is the direct result of

setting up either expressly or implicitly a

presumption as to the correctness of the trial

judge's finding.

MASON CJ: But there is no modern authority which suggests

that there is a presumption in favour of the trial

judge's finding, is there?

MR McCUSKER: Well, close to it, Your Honour. If I could

take Your Honours to paragraph 5 of the outline

where I have referred to Martin v Option

Investments Limited - perhaps at page 4, it is

first referred to. The authority there is

reproduced as number 7 in the supplementary list of

authorities and at page 468, Mr Justice Starke,

said:

In attacking this finding Mr Ryan

referred to the decision of the High Court in

Warren v Coombes ..... In this case the High

Court reaffirmed what I believe to be a well

Federici 25/10/90

settled principle in respect of the duty of an

appellate court when dealing with a judgment of a judge sitting without a jury. The High Court held ..... "in general an appellate

court ..... is in as good a position as the

trial judge to decide on the proper inference

to be drawn from facts which are undisputed or

which, having been disputed, are established

by the findings of the trial judge.

And so on. His Honour then said:

The position is I think well understood

that where a judge makes a finding of facts

which depend entirely or in part on his

observation of the demeanour of a witness and

his manner of giving evidence a court of

appeal will not reverse such a finding.

Now, that approach, in our submission, is an

approach which is not supported by any authority.

It is an example of a modern approach taken by a

State appellate court. It is not the sole example

of that.

TOOHEY J: It is a long way from that proposition to the

submission you made, that the appellate court

virtually starts with a clean slate.

MR McCUSKER: There is a difference in degree, Your Honour.

The appellate court, of course, cannot start with a clean slate because it looks at the evidence and it

must give due weight on the authorities to the

finding made by the trial judge. But, by way of

example .of the appropriate approach, in London Bank

of Australia Ltd v Kendall, which is number 3 on

our list of authorities - it is an earlier decision

of the High Court, of course - at page 407, which

is page 50 of the bundle, at the top of the page:

But where the law says that the Court, and not

a jury, is to determine the facts, and also

says that an appellate Court can be asked to

reconsider them, and therefore should
reconsider them, it is the duty of the

appellate tribunal (and it is the statutory
right of the litigant who invokes it to

require of it the performance of that duty) to
determine for itself the true effect of the

evidence so far as the circumstances enable it
to deal with the evidence as it appeared in

the Court of first instance.

So, to Your Honour Justice Toohey, we do not submit

that the court on appeal starts with a clean slate.

The authorities say that the court will have, and

should have, due regard or give due weight to the

Federici 25/10/90

finding of the trial judge, particularly so where

on a proper analysis the finding does rest on the

demeanour of the witness.

TOOHEY J: But in this case, Mr Mccusker, if you go to

page 209 - and I do not propose to read it - but,

in effect, it is the summation of the majority in

the Full Court. What Their Honours appear to be

saying is that, "We've looked at the evidence,

we've heard all the argument, we're not persuaded

that any of the findings reached by the trial judge

were in error or that there's any reason why we

should make findings other than those which the

trial judge made". In that situation, it is

something of a hurdle then to persuade this Court

that it is appropriate to grant special leave to

reconsider that approach.

MR McCUSKER: Well, that approach, Your Honour, if one looks

at what the appellate court, the majority there, in

fact, did is the rigid approach that I have

referred to which earlier decisions of this Court

have said is not the appropriate approach, to apply a rigid formula, in effect. There is a presumption

inherent in that approach, whereas Justice Rowland,

without stating the principle that he was applying

took, in our submission, the correct approach for

an appellate court which was to reconsider for

himself as an appeal judge all of the evidence and
reach his own conclusions giving due weight, but no

more than due weight, to the findings of the trial

judge.

Now, I have mentioned in the outline of

authorities, Your Honour, that the so-called "rigid

formula" has been applied in, or enunciated, in

Martin v Option Investments, in a recent Victorian

decision in 1982. It is also referred to by a

recent decision of this Court, Jones v Hyde, which

in the supplementary volume is the fifth authority.

At pages 351 to 352, Justice McHugh, delivering the

judgment of the Court in that case said:

I do not accept that in this case the learned

trial judge's observations of the demeanour of
the plaintiff and the defendant and their

manner of giving evidence played no part in

his findings. I think that they almost

certainly did. In accordance with the rules
relating to the review of findings of fact

based in whole or in part on demeanour, those

findings are not open to review in an

appellate court. The judgment for the

plaintiff must be reinstated.

We say at once that, in our submission, that

observation was an observation in the context of a

Federici 9 25/10/90

dispute between two sets of witnesses. There was

contradicted evidence and the trial judge was faced

with the problem of resolving the dispute.

TOOHEY J: But, it is a different situation, is it not? The

principle may be the same, I am not sure, but it

may be one thing for this Court to say of an

appellate court which has set aside a finding by a

trial judge, that approach taken by the Full Court

was in error. It failed to have sufficient regard

to the advantages that the trial judge had and the
findings of fact that he made, but the situation
that we are faced with is the situation which the

Court of Appeal, having considered the evidence, concluded that no error had been demonstrated on

the part of the trial judge and, therefore, refused

the appeal.

MR McCUSKER:  When reviewing the decision of the trial

judge, Your Honour, it is our submission that

although it is often said that no error has been

involved in the decision of the trial judge, the

essential question is: what is the approach of the

appellate court? Is it that there is a presumption

that the trial judge's findings are correct and

there is a need then to displace them or is it that

the appellate court should, under its statutory
duty, review all of the evidence as Justice Rowland

did.

TOOHEY J: Can I just say this: what you appear to be

inviting us to do is not to review the decision of

the Court of Appeal, the Full Court, but to review

the decision of the trial judge?

MR McCUSKER:  No,· Your Honour, I am saying that on analysis

of the majority decision in the Full Court, what that court did was to simply accept the findings made by the trial judge with respect to the

evidence of the plaintiff without any close

examination of the basis of those findings. The

approach that where a finding of fact is based

wholly or in part on the demeanour of a witness has

been carried through into that decision, whereas

if, as Justice Rowland did, there were to be

carried out by the appellate court a complete

review of the evidence and he reached a different

conclusion, then, in our submission, that is the

appropriate approach.

If I could refer Your Honours to two

decisions, they are both quite old but they are

both still relevant to this point.

MASON CJ:  Mr Mccusker, this is a special leave application.

There is a limit to the number of authorities that

Federici 10 25/10/90

it is appropriate to cite to us on a special

application.

MR McCUSKER:  Could I simply refer Your Honours to one of those decisions then?

MASON CJ: Yes.

MR McCUSKER:  That is Lek v Mathews and what was said in

that case and the preceding case provides another

example. In the second column to that report at

page 543, Lord Justice Atkin said - this is the
third paragraph:

I fully appreciate that the trial Judge

has advantages in seeing the witnesses. For
myself, after a considerable personal

experience of seeing witnesses, I think those

advantages are often exaggerated. I would

attach much more importance to the intrinsic

value of the evidence, its relation to other

facts clearly proved or admitted, than to the

demeanour of the witness. I have known

witnesses of truth with the demeanour of
equivocation, and witnesses of untruth with

the demeanour of righteousness.

And he went on to refer to:

The lynx-eyed Judge who can discern the

truthteller from the liar by looking at him is

more often found in fiction or in appellate

judgments than on the Bench.

I refer to that approach. It is a typical

aphorism, perhaps, of Lord Justice Atkin. The

approach taken there by the whole of the Court of

Appeal or members and in the preceding reports

Societe D'Advances Commerciales was that a finding

made by a trial judge, even though expressed to be

based on demeanour of a witness, is not

unreviewable. That is the first proposition.

In a State Full Court decision, and that State

Full Court decision is marked against Option

Investments (Australia) Pty Limited, the rigid

approach of such a decision being unreviewable was

taken and that rigid formula was also referred to

with apparent approval in Jones v Hyde although

that was not necessary for the purpose of that

decision.

A different approach - in our submission, a

correct approach - is exemplified in the two

decisions:  Galea v Galea, which is the first in

our supplementary bundle of authorities at page 265

to 267, where the authorities in this area are

Federici 11 25/10/90

reviewed and the conclusion in Galea v Galea and

the approach taken is consistent with that also

taken in Ravagnani v Hollywood Sands,

(1972) 1 NSWLR 369, which is also in the list of

authorities.

Your Honours, Coghlan v Cumberland,

(1898) 1 Ch, which was cited with approval in Moran

v McMahon, which is the sixth authority - -

MASON CJ: But do we need to go to all these cases,

Mr Mccusker?

MR McCUSKER: 

Simply to demonstrate, Your Honour, that there

are two lines of authority in this area: there is
the rigid formula or presumption of the correctness
of the trial judge's finding and, indeed, its
unreviewability where questions of demeanour are

concerned; and there is what, in our submission,

is the correct approach and that is that an appeal

court must review all of the evidence and the only significance of the trial judge's finding based on

demeanour is that due weight should be given to

that.

But where the trial judge's finding, as here,

is based on matters which he expressed and which,

on analysis, cannot support or should not be taken

to readily support his finding as a rejection of
the evidence, then the appellate court should

simply differ.

MASON CJ: But did not the majority here review the

evidence, looking carefully at the evidence which

might give rise to inferences inconsistent?

MR McCUSKER:	No, they did not, Your Honour.
MASON CJ:	But did they not look at the marks on the road,

the debris, position, the situation of the vehicle

in relation to the embankment?

MR McCUSKER:  Your Honour, can I take each of those in turn

to explain what did occur: first, there were marks

along the embankment of which there was

uncontradicted evidence but the marks on the

embankment, according to various witnesses, started

at slightly different places. The marks on the

embankment were very significant because the
embankment ran along the plaintiff's correct side
of the road and his evidence was that when his
vehicle was struck it ran along the embankment and

left the scar, the scoring along the embankment

which three witnesses observed.

One of those witnesses was De Worboies, the police constable who attended the scene. The

Federici 12 25/10/90

evidence of De Worboies is set out at page - the

particular part is at pages 82 and 83 where he

confirms, at line 22 that he noticed:

a scarring running running along that side

embankment to where Mr Federici's -

the plaintiff -

vehicle was?---There was one, I think.

And did you mark that?---Yes. That was

marked - - -

Then he confirms he marked it with rocks and then:

To show the length of the scarring which ran

towards Mr Federici's vehicle?---That is

correct.

At page 83, he refers again to the scarring	and it
is clear that although there was no precise evidence as to where the scarring commenced according to his observation it was scarring	which
ran to where Mr Federici's vehicle finished.	That
appears at 82, line 22.

The majority, in their reasons, at page 206,

referred to the evidence of the scarring or the

scrape marks given by three witnesses:

Jimmy Federici, Mick Federici and the sergeant and

also Peribono gave evidence which is not reproduced

but that is at page 250 of the transcript and I

have been asked to provide that to Your Honours.

MASON CJ: But we are really not going to review the

evidence in this application, Mr Mccusker.

MR McCUSKER:  I understand that, Your Honour. But what the

majority did, at page 206, was to say that:

the sergeant confirmed the existence of the

scrape marks, he did not identify where they

started or ended.

Although he did not identify precisely where they

started, he did identify, in the evidence, where

they ended. The evidence of the scarring, although

there was some - it might be said -

inconsistencies, the inconsistencies were not such

that, on analysis, they detracted from the clear

evidence that there was a scarring made by this

vehicle running along its correct side of the road

along the embankment. And the fact that there were

minor discrepancies between the witnesses as to the

extent of the scarring, in the end, is of no

Federici 13 25/10/90

significance as to a finding relating to where the

vehicles were at the time of collision.

Your Honour referred to the evidence of marks on the road and debris on the road. The sergeant

who attended the traffic scene prepared a plan

which is in the appeal book at page 95 but

His Honour Mr Justice Rowland, quite correctly,

subjected that plan to critical analysis based upon

the evidence which was before the court.

One matter which appears on the plan, which it

is common ground, accepted by all member of the

appellate court as being incorrect and not

evidence, was the sergeant's suggested point of
impact; that appears at page 95 of the appeal

book. There is a note, "Point of Impact''. Neither

the trial judge nor any judges in the appellate

court considered that his opinions as to the point

of impact was evidence which could be admitted as

the point of impact.

Your Honours, there was evidence of debris

scattered across the road, as one might expect in a

collision of this nature. There was no scarring or

other marks on the road from which any conclusion

could be drawn as to the point of impact of these

vehicles. What evidence there was before the

court, however, was very clear and that was that

the plaintiff's vehicle had run along this cut-in

embankment from a point which must have been near

the point of impact to the point where it finished

up.

What is also clear before the Court is the

evidence of Keenan to which there can be no

presumption applied as to the trial judge's finding

based on demeanour because the evidence of Keenan,

as I said, was in a statement. There, it is a

question of - before I leave the evidence of the

debris, Your Honour, going back to that plan at

page 95, Your Honours will see that there is a

marking there showing two doors which were from the

plaintiff's vehicle, strewn along his side of the

road. So, to the extent that the debris was of any
relevance, that debris on the southern side of the
road, his side, is significant. It was not

considered by the appellate court.

MASON CJ:  Mr Mccusker, we will adjourn at this stage and we

will resume at 2.15.

AT 12.49 PM LUNCHEON ADJOURNMENT

Federici	14	25/10/90
UPON RESUMING AT 2.18 PM:
MASON CJ: Yes, Mr Mccusker.
MR McCUSKER:	May it please Your Honour.	If I could take

Your Honours briefly to the few points I wish to

make?

MASON CJ: Yes.

MR McCUSKER: At page 195 of the application book, at

line 5, the court says:

We have. not endeavoured to summarise all

the evidence, which has been referred to in

detail in his Honour's lengthy reasons. It is

sufficient to emphasise that the evidence of

the appellant and his witnesses contained
material discrepancies, which were the subject
of considerable comment by his Honour, and
which were relevant to the credibility of

those witnesses.

Your Honour, that is so in respect of not all the

witnesses but some of the witnesses. There was no
critical comment made by the trial judge of the

evidence of the witnesses who gave evidence of the

scarring along the embankment. The question of the

scarring along the embankment is referred to by

Their Honours in their joint judgment at page 206 and they observe, at line 24:

that they were obvious inconsistencies between

these witnesses.

But, Your Honour, the inconsistencies were of no

substantial importance because the only

inconsistencies were that Sergeant De Worboies did

not say, and was not asked, where the scarring

started although he certainly took measurements of

the scarring which ran to the Falcon at the point

where it finished up on its correct side of the

road and the other witnesses gave estimates of the

extent of the scarring.

Going back to page 195, Your Honour, where the

joint judgment speaks of the detail of the

evidence, in our submission, Their Honours did not
carry out the function of an appellate court which

was to properly consider and review the evidence

for itself. That is what they were invited to do by the grounds of appeal and they were invited in

particular and did not consider critically the
basis upon which the learned trial judge rejected

the evidence of the plaintiff.

Federici 15 25/10/90

But if one puts that to one side, there is one

important and very small aspect of the evidence -

small but, as I say, important - and that is the

statement of Mr Keenan. Their Honours deal with

that statement at page 208, starting at line 4, in

this way:

As to Mr Keenan's evidence, his Honour,

in the circumstances, found it difficult to

give it any particular weight.

And he commented:

"I note however that his evidence as to the

position of the plaintiff's vehicle on the

roadway, prior to the collision, seems to have

the air of reconstruction from habit rather

than direct recall".

Their Honours comment:

When one reads the transcript of the evidence of Mr Keenan, in our view, the impression his

Honour formed was one which was open, having

regard to the totality of it.

Now, contrast that, if it please the Court, with

the comment made in his dissenting judgment by

Justice Rowland at page 213. His Honour quotes, at

the foot of that page, the observation of the trial
judge about it seeming "to have the air of

reconstruction" and says, at the top of page 214:

I have great difficulty with that assessment.

The majority in the appellate court did not attempt

to examine the basis on which the learned trial

judge, in effect, rejected the evidence of Keenan

as evidence of the point at which the impact

occurred; that is with the plaintiff on his

correct side of the road. Justice Rowland says,

correctly, in our submission, and quite clearly if

one turns to the totality of Keenan's evidence,

that it: 

was quite straightforward and clear, and was

said by him to be based on his recollection.

He was strongly pressed in cross-examination, but was not shaken on this and, by the failure of counsel for the respondent to put in the

statement Keenan had made some time ago -

that was a statement obtained from Keenan -

which must have been soon after the events in

question, it is apparent that his evidence did
not differ in any material degree to that

statement.

Federici 16 25/10/90

There is the clear statement before the court of

Keenan. The only basis for rejecting it was a

basis which was not examined by the majority; that

is that it seems to have the air of reconstruction.

The statement of Keenan, in its totality, repeats, in several places, that the plaintiff was on his

correct side of the road. And that evidence, which

it is, is totally consistent with other objective

evidence.

Putting aside the plaintiff's evidence, if I

could just point to the fact that at page 93, which

is a photography of the vehicles and the road,

getting towards dusk but following the accident,

Your Honours will see, significantly, that there is

no evidence of any gouge marks and, indeed,

De Warboies gave evidence of any gouge marks which one would expect if the plaintiff's vehicle had

been not on its correct side of the road but, let

us say, in the middle or on the other side of the
road.

The hypothesis that it was on the left side of the road is supported by the scarring, is supported by the direct evidence of Keenan and is unaffected

by evidence of any gouging or scarring which one

would expect if a vehicle which had this colossal

impact to it by the Toyota had been somewhere in

the middle of the road and forced across by the

impact.

I take Your Honours very quickly to the

photograph which appears at page 100 and 101, in

fact, is the more cogent photograph. That is a

photograph of the plaintiff's vehicle after the

crash. As Your Honours can see, the damage was so

considerable, the impact was very great indeed.

The plaintiff's evidence was that, at the last

moment, when he could see that the other vehicle

was coming straight at him, he flung himself across

the seat and so avoided dec~pitation because most of the top of his vehicle was almost sheared off.

Your Honours can also see that the tyre at the

right rear of that vehicle, that is the driver's

side rear, has been burst and that, too, would
suggest that if there was a collision, an impact

other than on his correct side but somewhere in the

middle of the road, then there would have been

expected to be severe gouge marks as the vehicle

was in some way forced across the road or skid

marks. But there were none of these which

supported an alternative hypothesis that the

collision took place in the middle of the road.

Your Honours, the collision had to take place

somewhere and it either took place, on the evidence

Federici 17 25/10/90

before the court, on the plaintiff's correct side of the road, which is totally consistent with the

Keenan evidence and the scarring along the

embankment or it took place in the middle of the

road which is quite inconsistent with the absence

of any objective evidence that this was so.

Your Honours, could I just finally take - I

appreciate that canvassing the facts too much is

not appropriate for an application for special

leave but it needs to be done just to demonstrate

the difficulty with the joint judgment which,

although it said that they had reviewed the

evidence, in fact did not do so but played lip

service, in our respectful submission, to it.

Your Honours, the judgment of Justice Rowland,

at pages 219 and 220, particularly at line 10,

at 220, refers to the objective evidence on the

road, the broken glass and so on, which certainly
in no way derogates from the plaintiff's case that
the vehicle was on its correct side of the road

but, rather, supports it.

In short, Your Honours, Justice Rowland, in

this case, carried out the proper function of the

appeal court which was to critically analyse and

review the evidence. The joint judgment of the

majority, although it purported to do that, in
fact, on scrutiny, did not do so. If one confined

scrutiny to the evidence of Keenan alone then, in

our respectful submission, it is clear that the

analysis undertaken by Justice Rowland would lead

to the conclusion, inevitably, that the plaintiff's

case should have succeeded, particularly having

regard~ - -

DEANE J:  Mr Mccusker, you say that but if you look at

Mr Keenan's critical evidence which is set out on

page 192, I have no difficulty in agreeing with the

trial judge's statement that it suggests at least

an element of reconstruction. There are three

things in it that do. One is:

It would have to be there because -

the next is -

He had to be.

And then, at the end:

I've driven many miles with -

MR McCUSKER:  Your Honour, that is only part of the evidence

that Keenan gave and -

Federici 18 25/10/90

DEANE J: But, as I say, reading that - - -

MR McCUSKER: It is an extract.

DEANE J:  - - - I have trouble with what Justice Rowland

said, that there is nothing to suggest

reconstruction.

MR McCUSKER:  If I could take Your Honour to page 43, which

is not reproduced, that is his evidence in-chief.

DEANE J: Yes, I read that.

MR McCUSKER:  You see, one must make allowances for the

manner in which this man was expressing himself and

the circumstances in which he gave his evidence.

DEANE J:  I appreciate that but that brings us back to the

plain fact that that is a critical part of his

evidence.

MR McCUSKER:  A critical part of his evidence, of course, is

that he has said - it was not put to him that he

was simply reconstructing, I do not think, there

and what he was saying throughout was, "The car was

on its correct side of the road.".

DEANE J: But it was put. If you look at the first question

on page 192. And that is what Their Honours have

isolated to explain their views.

MR McCUSKER:  Your Honour, to isolate that portion of the

evidence when the entire thrust of the man's

evidence is clearly, "I knew I was on the correct

side of the road, that is what my recollection

is.", would be, with respect, unfair to the

plaintiff's case.

Might I simply conclude, Your Honours, by

referring to the approach this Court took in Utting

v Luhtala, which is the eighth report in our

supplementary list of authorities, referring to the

clear uncontradicted evidence which was rejected.

In our submission, the approach taken by this Court

in Utting v Luhtala and by the Court of Appeal in

New South Wales in Broadribb v Hanna is appropriate

where the evidence is uncontradicted, which is the

case here. There is no objective evidence which

contradicts it. we come back to the question:	if
the accident did not occur as the plaintiff said, on his correct side of the road, where is the
evidence that one would expect that it occurred
somewhere else. There just is not any and

Their Honours did not, with great respect, review

the evidence on that basis.	May it please
Your Honours.

Federici	19	25/10/90
MASON CJ:	Thank you, Mr Mccusker.	The Court need not

trouble you, Mr Allen. This case turns on its own

facts and we are not persuaded that the proposed

appeal would involve any question of general

principle or would result in any elaboration of

general principle.	The application is therefore
refused.

Yes, Mr Allen.

MR ALLEN:  May it please the Court, I ask for an order for

costs.

MASON CJ:	You do not oppose that, Mr Mccusker.
MR McCUSKER:	I do not oppose it, Your Honour, no.
MASON CJ:	The application is refused with costs.

AT 2.33 PM THE MATTER WAS ADJOURNED SINE DIE

Federici 20 25/10/90