Ferguson v Singler

[2011] HCATrans 158

[2011] HCATrans 158

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S318 of 2010

B e t w e e n -

JEFFREY FERGUSON

Applicant

and

TONY SINGLER

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 JUNE 2011, AT 12.55 PM

Copyright in the High Court of Australia

MR S.G. CAMPBELL, SC:   May it please the Court, I appear with my learned friend, MR P.R. CUMMINGS, for the applicant.  (instructed by Moray & Agnew)

MR B.M. TOOMEY, QC:   May it please your Honours, I appear with my learned friend, MR G.J. SMITH, for the respondent.  (instructed by Bale Boshev Lawyers)

HAYNE J:   Yes, Mr Campbell.

MR CAMPBELL:   Thank you, your Honour.  Your Honours, in our submission, this case gives rise to an important question which informs the way in which trials are conducted in trial courts in Australia on a daily basis, and that question, your Honour, can be put this way.  What fair warning is necessary if counsel for an opposing party wishes to call in question the creditworthiness of, in this case, a plaintiff in the course of his final addresses? 

The question can perhaps be refined, your Honours, to say is it always necessary that the proposition be put directly to the witness when he is giving evidence or, in the context of a trial, is it sufficient that warning by other means is clearly given so that one’s opponent, and the opponent’s legal representatives, have a fair opportunity to deal with the matter before the close of the case.  Your Honours, this was a case of a type which is not uncommon in the District Court of New South Wales ‑ ‑ ‑

HAYNE J:   Or elsewhere.

MR CAMPBELL:   Or perhaps elsewhere, your Honour the presiding Judge, yes - that the plaintiff suffered a motor accident in contestable circumstances.  The injuries which he suffered were, on one strong view of it – may we put it that way, your Honours – soft tissue injuries which entirely depended on the veracity of the plaintiff for the acceptance of the nature and extent of the injuries and disabilities.  It was also familiar in other ways.  I have said already, your Honours, that the circumstances said to give rise to a liability in negligence were contestable, and where contested, the defendant and his passenger recalled and gave a contrary view of what happened.  There was no incontrovertible evidence.

HAYNE J:   Each vehicle proceeded through a green light.

MR CAMPBELL:   Yes, your Honour.  The only way that this could be resolved was by having reference to the onus of proof, of course, but in the end the trial judge was faced with a question “Who do I believe?” or rather, “Do I believe the plaintiff?” because if the answer to that question was no, then in such circumstances the plaintiff had to lose because even if she could believe no one, he had not discharged the onus of proof.

The attack on the credit of the plaintiff also followed a familiar pattern, your Honours.  It proceeded, with respect, your Honours might think, in an entirely orthodox fashion.  Not only was the plaintiff challenged about the circumstances of the accident by reference to the evidence that the cross‑examiner knew, or expected, to be eliciting from his own witnesses, but extensive surveillance had been undertaken, all of which was put in cross‑examination.  The plaintiff was shown the film, and it was put to him directly that he was not telling the truth about his complaints.  He was not telling the truth about how the accident happened. 

Again, in a familiar and orthodox fashion, he was cross‑examined about prior inconsistent statements, and in saying that, your Honours, I have in mind the family law material to which reference was made in the judgments below.  There could be no doubt that after the plaintiff left the witness box, and before the events surrounding the MRI scan emerged, that the defendant had challenged in the clearest possible terms his creditworthiness as a witness, and that the defendant would say to the trial judge when the case was over, “You cannot believe the plaintiff about how the accident happened, and you cannot believe what he says of the nature and extent of his injuries”.

HAYNE J:   But then the question becomes, did the trial miscarry because the MRI material – if I can call it that – was not put squarely to him?

MR CAMPBELL:   Yes, your Honour.

HAYNE J:   Now, why should we get into that issue?

MR CAMPBELL:   Well, your Honours should get into that question for two reasons:  one, a clear matter of fact and the second one a matter of principle, we would respectfully submit.  The clear matter of fact is that when it emerged, as both the judgment of Justice Beazley, who led the majority, and the dissenting judgment of Mr Justice Young made clear, when it emerged at the time of the tender by counsel for the defendant of the MRI report – when it emerged, counsel said in the clearest possible terms that an inference was open about the circumstances in which it was uncovered and the fact that it was not mentioned at a time when one might think it would have been mentioned, and that time, of course, was only two days before, when Professor Ghabrial was in the witness box giving evidence about the nature of the disabilities and talking about the possible significance of an MRI scan.

Your Honours, that is dealt with – could I perhaps, your Honours, go firstly to Justice Beazley’s decision, which is at page 71, and that, your Honours, is part of a longer recitation of the events of what occurred, but at paragraph 27 – and I know your Honours have this material - your Honours will see that her Honour records:

The respondent’s counsel submitted that her Honour “would have to draw the inference that there had been a lack of frankness about a piece of evidence”.

In context, your Honour, there was no doubt about what the piece of evidence was.  It was the MRI scan and report, and showing the results.  Mr Justice Young, your Honour, set the matter out in a little bit more detail.  It is page 91, and it is paragraph 101 of the judgment below, and your Honour will see that he sets out the whole of the relevant passage of the submission made by learned counsel for the defendant, and your Honours will see that in that fuller context, there could be no doubt that it was being said that:

there has been a lack of frankness about a piece of evidence –

and he goes on to explain why that is important.  Now, what is significant about that, your Honours – and going back to what constitutes fair warning – is that this all happened in open court, and it all happened at a time when the plaintiff was actually in court because earlier, learned senior counsel for the plaintiff had, with her Honour’s permission, withdrawn to take instructions about the matter before giving the explanation that was proffered.

So the matter, as we have put in our submissions, your Honour, is analogous, we submit, to something that transpires in the well of the court, out of the sight of counsel, but which the judge perceives to be a significant factor.  Now, it is not necessary in those circumstances, the authorities clearly indicate, your Honours, to recall the plaintiff or the witness or the party, and have the matters that the judge observed put to him or her.  It is enough – bearing in mind that it is a fair opportunity that is required, a fair opportunity of a fair trial – it is enough that the judge disclose what has been observed, how the judge thinks that impacts upon the case, and gives counsel for the parties the opportunity to address it, and having been given the opportunity, your Honours, counsel for the party affected can of course make any application that he or she thinks advisable to have the witness recalled to give his or her own explanation on oath.

We submit, your Honours, that is exactly what happened here.  In open court, in the presence of everyone concerned, learned counsel for the defendant made the clearest possible statement of what he said the significance of these facts were, and how he was going to rely upon it, which factor he undertook to do when it came to the point of making final addresses.  A written outline was exchanged with counsel for the plaintiff, and the submission was made again in open court.  The plaintiff and his representatives were content to rely upon the explanation that had been given from the Bar table, and nothing else.

Now, your Honours, that is the first part, the factual part of the answer to your Honour the presiding Judge’s question.  The second part is what we submit is the important matter of principle, or perhaps rather, how the principle is applied on a daily basis.  In this case, we submit in the written summary, your Honours, that Mr Justice Young put the matter appropriately.  The test that the court laid down instead is an objective test, and that if, for instance, here, it is enough for counsel for the party affected to think without anything said by the judge to give a positive indication in his or her favour that the matter has been put to rest, then that is a forensic choice that counsel makes, but if trials were said to miscarry because counsel had made a wrong forensic choice, then the burden imposed upon trial courts in the daily administration of justice would, your Honours might think, be well nigh intolerable.

In a slightly different context, your Honour Justice Heydon referred to the gamble that counsel make when they decide whether or not the evidence of the witness is so weak, to let it go.  Similarly, we would submit that counsel makes a forensic gamble here when he or she decides that rather than calling further evidence to explain what is causing concern - to explain what has been clearly challenged by his opponent, but simply to rely – and I say “simply” with respect, your Honours – upon an explanation from the Bar table. 

When that happens, with respect, then the gamble is made, and the court is entitled to go on and decide the case, the issue having been clearly raised on the basis of the material and treating senior counsel’s explanation only, as we have said in the summary, as part of the evidential mix which has to be assessed in deciding the disputed question of fact, or in deciding, in this case, the matter of the plaintiff’s credit. 

It is the very familiarity of the type of case that is before your Honours which makes the questions it throws up, we respectfully submit, so important, because it is a daily example of the type of dispute that has to be resolved in courts all across Australia, as your Honour the presiding Judge corrected me at the outset.

Now, when the Court of Appeal says there has to be a new trial in these circumstances, it is because there has been a breach of again, with respect, what your Honour Justice Heydon referred to in International

Finance Trust as “the hearing rule”, that is to say, that in this context, the plaintiff did not get a fair opportunity to present his case and have a fair trial. I should have given your Honours the reference, I am sorry - (2009) 240 CLR 319, and we have given your Honours an extract from the bundle.

I just want to make a passing reference, your Honours, to what is in Justice Heydon’s judgment at page 381, paragraph 146 of the illustrations of how the rule applies in practice.  Your Honour did start by saying:

The courts are extremely solicitous about the interests of persons –

et cetera - I will not read it.  The point that I wished to make, your Honours, was that the illustrations show that there are exceptions.  We have referred to one and relied upon it in terms of what is observed to occur in the well of the court.  I will not multiply the examples that have been so thoroughly set out by your Honour Justice Heydon, but if it is said in a case like this, where everything occurred in open court, everyone’s position was clearly expressed, that the trial has miscarried because of a breach of the hearing rule, we respectfully submit that it will lead to an intolerable burden on trial judges deciding these cases. 

We may have moved on in the centuries where a silent judge was seen as being the only judicial virtue, but if everything said in the course of the dialogue between the court and counsel - it has to be said, “Well, look, I am saying this but it is not a firm view” or, “I hear what you say about that but I am not telling you I am going to accept it”, apart from the problem which might occur if there is a slip, trials, your Honours might think, will be elongated unduly whilst one goes through what will then become a ritualistic approach.

In our respectful submission – particularly can we say, your Honours, having regard to the other strong grounds that the learned primary judge had for rejecting the credit of the plaintiff in this case, that no breach of the hearing rule can be demonstrated and no miscarriage of justice occurred and for that reason, your Honours, the applicant has been deprived of something to which, with respect, he was entitled, and that is the judgment in his favour.  May it please the Court.

HAYNE J:   Thank you, Mr Campbell.  We will not trouble you, Mr Toomey.

The applicant seeks special leave to appeal to argue that the Court of Appeal should not have concluded that the course of events at trial was such that the trial miscarried and a new trial should be had.  No point of general principle would conveniently fall for consideration if leave were to be granted.  This is not a matter in which the interests of justice in the particular case call for a grant of leave.  Special leave to appeal is refused with costs.

AT 1.14 PM THE MATTER WAS CONCLUDED