Fuller-Lyons, Correy by his Tutor Nita Lyons v State of New South Wales

[2015] HCATrans 96

[2015] HCATrans 096

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S319 of 2014

B e t w e e n -

CORREY FULLER‑LYONS BY HIS TUTOR NITA LYONS

Applicant

and

STATE OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 APRIL 2015, AT 11.29 AM

Copyright in the High Court of Australia

MR C.T. BARRY, QC:   May it please the Court, I appear for the applicant with my learned friend, MR G.J. DAVIDSON.  (instructed by AC Lawyers)

MR R.J. BURBIDGE, QC:   May it please the Court, I appear with my learned friend, MR A.C. CASSELDEN, for the respondent to the application.  (instructed by Hicksons Lawyers)

MR BARRY:   Your Honours, there are four matters with which I wish to deal.  The first are the findings of fact that were made by the primary judge, and there are four of those relevantly.  The second proposition is the way in which those matters were dealt with by the Court of Appeal, relevantly, the Court of Appeal dealt with three of them, but not four.  The third matter is, in relation to the one that they did deal with, they got that wrong; and the fourth matter is that even if I am wrong about 1, 2 and 3 we never had the opportunity of actually dealing with the basis upon which we lost this case in the Court of Appeal.

May I deal with item number 1?  The primary judge made findings of fact in relation to four areas and if I may, your Honours, I will demonstrate what those four areas are.  If one goes to page 100 at line 20, one sees in the part of the primary judge’s judgment extracted in the judgment of Justice Macfarlan the first in time of the matters of which the primary judge dealt with.  That is at line 12 on page 100.  His Honour says, quoting the primary judge:

However the balance of the circumstances, namely the characteristics of the door –

Now, the characteristics of the door involved four matters which the primary judge regarded as being of significance.  I will take your Honours to what they were.  At application book page 9, in the first line, his Honour says this:

They were hung from the top of the vestibule using two adjustable roller brackets attached to the top of each door leaf.

In other words, what his Honour is describing is something that hangs like a wardrobe door.  It is hung from the top, and it runs on tracks at the bottom.  The energy to close the doors is driven by pneumatic pressure at the top which closes the two doors from the top, and I will come back to the significance of that shortly.

At line 20, his Honour says that when a train leaves the station, the door is closed and locked.  I should tell your Honours, and there is no dispute about this, the way that happens is the pneumatic pressure from the top closes the doors.  When they reach where they are supposed to be at the top, pins come up and the door is locked.  Hercules could not then open the door, as his Honour says, without shearing the bolts.

BELL J:   Mr Barry, is this directed to establishing that there was a basis for a finding, at application book 26 and 27, paragraph 77, that:

The most likely possibility [was] that, as the train left Morisset, Corey was already inserted between the doors with his back to one of them.

MR BARRY:   That is so.

BELL J:   Did that depend upon findings about the mechanics of the door‑lock mechanism, which you contend was open to his Honour to make and I do not believe were challenged, and his acceptance of the evidence of the guard that the only way an eight‑year‑old boy could effectively prise the doors open was if the eight‑year‑old has his back to one door using force against the other?

MR BARRY:   With respect, your Honour has summarised the central feature of the case - that it is only if he is trapped in the doors that this accident could have occurred.

BELL J:   On that analysis, his Honour’s conclusion that a limb and part of the torso would have been visible simply followed from a finding that the likely explanation was that the boy was trapped with his back to the door.

MR BARRY:   With respect, that is our submission, your Honour.  We go one step further – I will deal with the Court of Appeal in due course – but what his Honour was dealing with was probabilities, what are the probabilities in the circumstances?  What the Court of Appeal did is it set up what it thought were possibilities – and I will deal, with respect to their Honours, with the rationality of the possibilities in due course – but what the Court of Appeal was dealing with was things that they described as possibilities.  What the primary judge was dealing with was what he thinks probably happened, and as your Honour has correctly pointed out, he based that upon his findings as to the way in which these doors operated and the forces required to open them.

If I may continue, your Honour, then dealing with the question of forces one finds that at application book 10.  Your Honours will see – and the primary judge has a scientific background – that that comes to force at about line 20 where his Honour says 7 kilograms of force and then says that is “70 newtons” of force and then his Honour goes on and describes the amount of force required to push the doors apart and refers to the expert evidence of being “160 newtons” of force or 200 newtons of force - that is like trying to move seven Mr Davidsons. 

His Honour thought, when looking at that question, what is the probability that a child, an eight‑year‑old child, could achieve that exertion of force - so point number 1, his Honour looked at the way the doors worked.  The final step in the way which the doors worked one finds at page 100 at line 31 which is set out in the judgment of the Court of Appeal and what is there set out is a fact which his Honour thought in the case of an eight‑year‑old child was of some significance.  At line 31, his Honour says:

the doors take four seconds to close, give or take half a second.

Then at about line 33 –

An eight year old unsupervised child is exactly the category of person who might become unwittingly trapped in the doors as they close –

in something in the order of three to four seconds.  So step number one, his Honour’s process of reasoning - how do the doors work?  The Court of Appeal did not consider that and deal with that issue at all.

The second factual basis upon which his Honour based his findings as to the probabilities is in relation to what was a known as distinct from an unknown fact.  It is fortunately not a common occurrence that eight‑year‑old children disappear out of trains travelling at 100 kilometres per hour.  It is unfortunately a fact that people often get trapped in these doors, for the reasons that I have just explained.  If your Honours go then to page 100, line 28, your Honours will see that this formed an important part of his Honour’s findings of fact.  At line 28, his Honour says this:

As outlined below, such a circumstance was not an unknown or even unusual occurrence, even if it was not common.

His Honour is looking at, as it were, for want of a better way of putting it, common sense.  If you have got something which is known to commonly occur compared with something which is not known to commonly occur, how does that assist you in forming a view as to the probabilities?  His Honour said “that assists me in forming a view as to what probably happened in the scenario in this case”.

His Honour devotes eight pages of his judgment in dealing with the technical mechanisms which were afterwards put in place to deal with this very problem.  They were a “door open” indicator light, so that if the doors are not closed and locked, the guard knows that because he gets a light, and what is called “traction interlocking”; that is, the motor on the train will not start unless the doors are closed and locked.  His Honour spends eight pages dealing with that. 

We lost that part of our case, because his Honour found it was not unreasonable not to have those in place.  But in the process of dealing with that, his Honour deals with the respondent’s reasons for wanting to do that.  If your Honours go to page 32, line 52, your Honours will see the reasons for these projects:

The overarching objective of this project, as approved by the Board, was “to enhance passenger safety by reducing the risk of passengers being caught in doors, dragged by the train, or falling from the train in motion”.

BELL J:   Mr Barry, the critical factual finding on your case was that the way Correy was trapped was with his back to one door ‑ ‑ ‑

MR BARRY:   That is so.

BELL J:    ‑ ‑ ‑because that then, as a matter of unremarkable analysis, had at least some of his body protruding outside the train.

MR BARRY:   That is so.

BELL J:   The contrary view is that there was evidence that there was a customer assistance service officer.  The inference was open that the customer assistance service officer did not see any protruding limbs and that might tend to exclude the likelihood that however Correy was trapped in the door involved him being trapped with his back and half his body hanging outside the train.  Is that fair?

MR BARRY:   That is so.

BELL J:   The analysis of the Court of Appeal really comes down, does it not, to a view that it simply was not open, in circumstances in which there was nothing known except the mechanism of the working of the door and the amount of pressure to prise it open, that admitted of a conclusion that it was more likely than not that Correy, as the train pulled out of Morisset, had his back to one door and was trapped as it closed.

MR BARRY:   That is so.  That is why, at page 99 at about line 25, his Honour uses the words “only realistic means”.

BELL J:   I am sorry, where is that again?

MR BARRY:   Page 99, about line 26.  His Honour says two things, and I was about to come to those:

Mr Meiforth’s reaction to the proposition that an eight year [old] boy might prise or push the door open particularly telling –

Being an old common lawyer we place a lot of emphasis upon the fact that a trial judge has the advantage of seeing the way in which witnesses deal with such a proposition and the effect that that has on the judicial mind, seeing a man being asked to deal with such a notion.  His Honour then goes on and says –

I am satisfied that the only realistic means –

That, in our submission, as your Honour has correctly pointed out, was a critical part of the trial judge’s findings.

Now, your Honours, I do want to deal with other things.  Can I deal with Mr Justice Macfarlan?  Mr Justice Macfarlan posits other possibilities. I do not want to spend a lot of time on this because, with the greatest respect to his Honour, some of this is nonsense.  Where does one find an eight‑year‑old child whose shoe does not flex against the force of 400 newtons of force from two doors pressing against it?  How does an eight‑year‑old child accurately position a soccer ball or a basketball in a matter of fractions of a second in such a way that it keeps the doors open so that he can escape?  Next point, how does the eight‑year‑old child then get out of the train?  Does he climb under the ball, does he climb over the ball, and if he does so, how does he do that without losing his ball?  I do not want to go into too much detail, your Honours, but in terms of the possibilities ‑ ‑ ‑

BELL J:   I think there had been some exploration at trial of possibilities including that a drink bottle might cause the doors not to close completely.  Is that so?

MR BARRY:   That is so.  The guard said that some people have a cigarette – have a cigarette, which you are not supposed to do on a train.  They stick a Coke bottle between the door and puff between the doors.  That is where the evidence came from where he had to try and get the doors open to get the Coke bottle out of the way.  There was not a skerrick of evidence, and it was never put in evidence that this child actually had anything with him of the kind that the Court of Appeal posited as being possibilities, nor was there any evidence that any child had ever used or was ever capable of using a Coca-Cola bottle to then start the door a little bit, and then force it all the way open to escape. 

Apart from the fact we rely upon a little bit of common sense, with respect to their Honours, why would anyone, even an eight‑year‑old child, want to try and get out of a train travelling at 800 kilometres per hour?  Even eight‑year‑old children are fearful of danger.          Your Honours, I can go on with that, but there is another point, if I need a special leave point of a particular character. 

The reason why the Court of Appeal got this wrong is they started talking in terms of hypotheses.  We did not have a case on hypotheses.  We, like common lawyers, said there are certain facts upon which we rely, and identified what those facts were.  We say that on the basis of those facts, and the exercise of common sense, it is possible to demonstrate that more probably than not, this child was trapped between the doors of the train in the manner that his Honour ultimately found to have been the case when the train left. 

What does it matter that there might be hypotheses that one can speculate upon, even in the absence of evidence - and there was no evidence about basketballs or soccer balls or inflexible shoes - what does it matter?  The trial judge has made findings of fact on the balance of probabilities based upon what he thought probably happened.  Our submission is that those were soundly based.  The Court of Appeal did not deal with any of them, other than this notion that a child could somehow exert the force to open the doors.

BELL J:   I think the approach of the Court of Appeal was not to accept that it was open to be affirmatively persuaded, in the absence of any evidence other than the locking mechanism of the doors and the amount of pressure required to open them, that Correy was positioned in the way that his Honour found.

MR BARRY:   That would seem to be the way in which their Honours reasoned, without, of course, looking at the way in which the trial judge approached the matter and demonstrating, as we submit they should have done, why they say it was erroneous for the trial judge to have approached the fact‑finding in the way that we have outlined.  Your Honours, they are our submissions.

BELL J:   Yes, Mr Burbidge.

MR BURBIDGE:   Thank you, your Honours.  Your Honours, could I take you first to the case that was advanced by each party.  If your Honours would go with me to the application book to page 39, in paragraph 111 at the top of that page, your Honours will find from line 10 the case that was advanced for us to meet.  It was two propositions, the first of which may be stated and then disregarded, as it was found against my learned friend and is not the subject of application:

The first was the failure to implement the TI system –

We can disregard that.  Focusing, as we must, on the second case, which was that ultimately found, it was –

The second was the failure of the staff at Morisset to detect that the doors were not closed before signalling the train driver to depart.

It may be convenient to drop down to the next paragraph, if your Honours would ‑ ‑ ‑

BELL J:   I am sorry, which paragraph are we at, Mr Burbidge?

MR BURBIDGE:   It is line 11 on page 39, your Honour; it is actually paragraph 111 of his Honour the trial judge’s judgment.

BELL J:   Yes, I have it.

MR BURBIDGE:   It is convenient, if I may, your Honours, before returning to the word “before” – which appears in line 11 – as I must, to indicate the case that was before his Honour from the perspective of the present respondent.  At line 28 or thereabouts:

Mr Burbidge QC submitted that, even if “reasonable care required the Defendant to guard against known risk taking, any duty that existed to inhibit people squeezing through closed doors did not extend to making that course impossible”.

That was our position.  Our primary position remained throughout that the possibilities to which attention was directed and the inferences possible to be drawn from the few facts that were actually established had to recognise that there were a number of hypotheses which did not involve any aspect of negligence on the part of the CSA at all, and the Court of Appeal approached the matter on the basis that it did not need to look at the question of whether or not the trial judge’s finding of non‑involvement by the two elder brothers – whether or not that was so or not.       That was a fairly spirited matter in the court below, but when it got to the Court of Appeal their Honours made the assumption that his Honour’s finding in that regard was to be – they dealt with it on the basis that it was correct.

Your Honours, I said I would return to the word “before”.  The reason I do so is this, that there is a fundamental – there is a matter that needs to be stated immediately and that is this.  It is clear from the evidence that a procedure was established.  Nobody suggested a departure from it, other than the failure of the CSA to note the arm, leg and part of the torso said to be visible in circumstances where the doors are recessed, of course.

Where the CSA stands back from the front of the train acting as a relay because of the curvature of the platform he acts as a relay for the guard, who positions himself forward a little of the last of the train.  The CSA is somewhere in the middle looking towards the front of the train, and no doubt behind as well, and the system – I will take your Honours to where the evidence is – shows quite clearly that the manner in which it operates is that by reason of the safe working system that is mandated for the staff, that it is the obligation of the guard – I will take your Honours to it in a minute – to ensure that there is no passenger seen to be caught.

When that happens the guard, or by relay in circumstances that have occurred at the platform such as this – when that is seen to be so the CSA, in this case, holds out a white flag.  That flag is a signal that plainly he sees nothing which would impede the closing of the doors thereafter.  The proposition here has been consistently that - and it appears throughout the application book, but the first reference we see to it is at line 11:

The second was the failure of the staff at Morisset to detect that the doors were not closed –

by which we must assume not closed and locked, I suppose –

before signalling the train driver to depart.

But it is only after that signal is given that the doors are closed.  It is a fundamental misunderstanding as to how the system works.

GAGELER J:   I am not understanding where this submission is going.  Who has made the fundamental misunderstanding?

MR BURBIDGE:   My learned friend is seeking to defend the judge’s acceptance of this proposition.

GAGELER J:   He is seeking to challenge the way in which the Court of Appeal dealt with alternative possibilities.

MR BURBIDGE:   I will certainly come to that, but I simply need to make it plain that the system, the evidence of which was given by the expert from the railways – and he was not subjected to cross-examination – it was plain by this stage of the proceedings, that is, the trial itself and when reports had been served and so on that the original case which was that the plaintiff standing in front of the doors looking out through the window when suddenly the doors opened and he was either sucked out or someway thrown out of the train – that was the original case ‑ ‑ ‑

BELL J:   Mr Burbidge, I think you complained about the shift in the case, as it were ‑ ‑ ‑

MR BURBIDGE:   I did.

BELL J:   ‑ ‑ ‑ and that was the subject of a ground of appeal, but Justice Macfarlan ‑ ‑ ‑

MR BURBIDGE:   I am not complaining about it now, your Honour; that has gone.

BELL J:   Yes, all right.

MR BURBIDGE:   No question of that.  But much more important is the common ground evidence was that the way in which the doors operate is that the pressure comes on and closes them, and assuming that they meet in the middle then they lock and that is the end of it.  They can, of course, be stopped from locking by some small object simply being placed between to stop the complete closure.  The evidence was that the expert said, not cross‑examined, that there was evidence of interference with the doors, not only the ones through which the plaintiff fell, but the ones on the other side which meant that the similar interference had occurred at earlier stations where the train pulled up on the other side, because when the release button is hit, it only opens the doors on the side of the train adjacent to the station, as you would expect.

BELL J:   I think the trial judge noted that interference with the doors on the other side and noted that, as I understand his reasons, it may have been that Correy had been in the vestibule and interfered with the doors before Morisset, or something of that character.  Was that the approach that his Honour took?

MR BURBIDGE:   Well, I do not know that he implicated Correy in it in any way ‑ ‑ ‑

BELL J:   Someone.

MR BURBIDGE:   ‑ ‑ ‑ but he recognised that there was evidence to that effect, certainly.  His Honour ultimately of course did not decide whether the interference with the particular doors was deliberate or accidental or so on.  Our point for the moment is simply this, that the doors having been closed, when a station is reached and the appropriate release button is released, all that happens – nothing happens physically at the doors, they do not open.  They just sit there, but they can be opened by pulling on the handle, that is, the passengers themselves, if they wish to get out or people want to get on, pull the doors open.

What the trial judge has proceeded on is the idea that in some way Correy was trapped by the doors closing with pressure behind them, locking him in, like a beetle, if I may say so, and that thereafter that means by adding on the proposition that in order to get them back open he must have been able to push it open and therefore he must have been in the position that his Honour surmised - and he went on from there to say thereafter the CSA should have seen him in that position before signalling “free to go”.  But the doors do not have any pressure on them.  They cannot trap anybody in the sense described by his Honour before the signal is given and the guard puts the pressure on the doors.

BELL J:   But the Court of Appeal’s approach ‑ ‑ ‑

MR BURBIDGE:   Differs from that.  I agree.

BELL J:   The Court of Appeal seem to have looked to the possibility of an object ‑ ‑ ‑

MR BURBIDGE:   They did, your Honour, yes.

BELL J:   How did the Court of Appeal deal with his Honour’s acceptance that, given the evidence of the guard, absent the leverage of having his back to one door, the child could not have prised the door open?

MR BURBIDGE:   Their Honours dealt with that, your Honour – firstly, her Honour Justice McColl dealt with the situation briefly at page 91, if your Honours would look there.  Her Honour said at paragraph 4, line 40 onwards:

The primary judge recognised that his conclusion –

of the protruding torso, and so on –

as it closed –

and her Honour repeats the case which my learned friend is now suggesting was the case –

before the CSA signalled for the train to depart involved the CSA failing to observe –

Then she says, at the next page, paragraph 5 –

In my view that conclusion was not open –

that is, the conclusion that the scenario was a far more likely inference than all others -

on the objective evidence and amounted to impermissible conjecture or speculation.

BELL J:   Was this because – her Honour was reasoning, just as on one view it is open to consider the CSA failed to see body parts protruding from the train, the other view is if you know the CSA is watching the train and does not raise the alarm it is a fair inference that there are not body parts protruding.  That is the analysis.

MR BURBIDGE:   Yes, correct.

BELL J:   The matter I am taking up with you, Mr Burbidge, is the trial judge has made a very specific finding that Correy must have had his back to the door because an eight‑year‑old of his size could not otherwise have prised the doors open.

MR BURBIDGE:   Yes.  That was not the subject of evidence save insofar as two experts agreed that assuming that Correy was acting alone then he could have done it had he in some way got his shoulder into it or put his back to it and he could then push the door open.  That was the evidence not only of our expert, but in cross‑examination of the expert called by my learned friend.  That was the reference to that.  But her Honour said of that – line 10 on page 92:

the respondent’s accident could have happened even if the CSA had properly discharged his duties.

In other words, that he could have deliberately stopped the doors from closing and worked his way into the thing without it being visible to the CSA who is back from those – the doors in question were the foremost doors of the train, number one doors right up the front – and given that Mr Meiforth said, and it was not in contest, the doors are actually recessed from the frame of the carriage and that unless an object protruding through the doors extended by a foot or so, it would not be seen.  That was not in issue.  That was agreed to by the expert called by the other side as well.  You cannot see, your Honour, is the short answer, which may well be why the working direction says a guard must satisfy himself that no passengers are seen to be caught in the doors.  Your Honours, her Honour added her own observations ‑ ‑ ‑

GAGELER J:   But her Honour commenced by agreeing with Justice Macfarlan and then referred to Justice Macfarlan’s judgment repeatedly.  Do you support his Honour’s reasoning at pages 103 to 105 about the insistence of equally probable scenarios?

MR BURBIDGE:   If I have a moment I can answer your Honour directly, but the short answer is yes, we have no quarrel with any aspect of Justice Macfarlan’s analysis of the matter, to which I was about to come.  Could I just, before leaving her Honour’s, to save coming back to it, draw your Honour’s attention to page 92, paragraph 7, where her Honour says this:

It was an available inference . . . that the CSA discharged his duties –

That was the fundamental point on which ultimately the Court of Appeal upheld the proposition, namely that there are other propositions which did not bespeak negligence which had not been negatived as required by Luxton v Vines and so on.

The only other point to draw attention is that her Honour, as did each of the other two judges, assessed the matter on the basis of acceptance of the trial judge’s finding that the two elder boys had not been involved.  Her Honour set out what amounts to the State’s case - I will call it for convenience - at the foot of page 92:

It was also an available inference that after the train left the station the respondent used that opening to enlarge the gap before –

falling out.

BELL J:   Well, her Honour was here embracing as the alternative equally available hypothesis the insertion of an object between the doors and again that brings us back to the point of was it open to the trial judge to reject that on the basis of his Honour’s acceptance that, given Correy’s size and the force of the doors closing, the child simply could not have done that.

MR BURBIDGE:   No, it was not open to his Honour to do that, with respect, for two reasons.  The first is that the evidence was plain that the way in which the doors were stopped from locking involved impeding them from closing in some way which could be done by an object as small as a key or any of the larger objects to which Justice Macfarlan made reference and in particular, could be done by simply putting your foot in the door, and I will come to that.  That is in Justice Macfarlan’s judgment.

But could I just indicate that her Honour then accepted the proposition that the evidence certainly did not require the drawing of the available inference that the applicant had used some object to hold it from closing, supported by the fact that the doors were out of plumb on both sides of the carriage, when examined later on at Newcastle, having been found to be in normal working order before the train started at Central and her Honour said of that, paragraph 8 on page 93, line 8:

This was the appellant’s theory of the case.  It was in my view as possible as the respondent’s.  The facts proved did not, accordingly, “form a reasonable basis –

et cetera, quote from Jones v Dunkel.  Now, his Honour Justice Macfarlan, with whom Acting Justice Sackville agreed, as did of course her Honour, said at page 94, paragraph 11, line 10, he too made the assumption in favour of Correy’s position, namely that:

his brother’s denials were truthful –

and assessed it on that basis.  His Honour then went to - if your Honours would go to page 97, 19, I am using paragraph numbers, at line 10, the “doors were recessed” and one –

would only see “if someone is hanging out, if there is anything sticking out a foot or so” but if they were “just holding something inside that recess you wouldn’t see it . . . ”

That was common ground of both experts.  Then we would ask your Honours to go to page 103 where his Honour, having set out the legal principles, and there is no contest as we understand it about the legal principles set out at page 102, his Honour then advanced a resolution of the appeal, repeated the assumption in favour of the primary judge’s acceptance of the denials of involvement and at line 10 his Honour elaborated on that saying:

This is an assumption favourable to Corey’s case because if his brothers were involved, a reasonable hypothesis, at least as probable as that found by the primary judge, is that the brothers, perhaps with the assistance of Corey, pulled one or both of the train doors further open after they had, whether by use of a foot or other object, prevented them fully closing ‑ ‑ ‑

BELL J:   Mr Burbidge, I think that is not really germane to his Honour’s reasons because ‑ ‑ ‑

MR BURBIDGE:   If your Honour pleases, I will pass over that.

BELL J:   Yes.

MR BURBIDGE:   I suppose I am illustrating only the idea that the matter was thoroughly considered from all aspects.  His Honour then says:

The question then arises whether some such hypothesis is reasonably available (and not less probable than that found by the primary judge), even if it be assumed that Corey was acting alone.  In my view it is.

His Honour then went on ‑ ‑ ‑

GAGELER J:   Mr Burbidge, what is the bottom line here?  What is the point you are seeking to make by taking us to these statements?

MR BURBIDGE:   I am really now, your Honour, simply saying that there was no error demonstrated on the part of the Court of Appeal in their approach to the matter.  Nor does reference to the evidence in any way suggest that anything that they had assumed or said was not founded in evidence.

GAGELER J:   I think that you can assume that we have read these passages carefully.  Is there some particular part that you wanted to highlight?

MR BURBIDGE:   I am drawing to a close, your Honour.  If I may briefly, point out the ones to which we draw attention.  They commence, your Honours, at page 103 where his Honour said at line 41:

there is no reason to exclude the possibility that, when the train was about to leave Morriset station, Corey used an object to keep the doors open to a sufficient extent to enable him to put at least his shoulder into the space ‑

that is the recess doors and so on.  Then, if your Honours would go to page 103, 32, from that point his Honour sets out a series of possibilities, all of which, we would submit, are perfectly sound and not ‑ ‑ ‑

BELL J:   Mr Burbidge, does it come down to this?  The trial judge made a specific factual finding based, among other things, upon his Honour’s acceptance of the evidence of the guard as to the capacity of the eight‑year‑old to force the doors open other than if he had his back to one door.  That factual finding was critical to the balance of his Honour’s reasoning.  To point to other possibilities, against his Honour’s finding of the likelihood that the child was positioned with his back to the door, does not assist.  I mean, that is the critical issue, is it not?

MR BURBIDGE:   Yes, in this sense.  Our response to that at all times was that was not the case that was advanced.  I have taken your Honours to a reference - there are two or three of them, all of which envisaged that in some way the doors closed upon Correy, that the CSA negligently failed to perform his duty and flagged away the train and the doors were then closed.

BELL J:   Yes.

MR BURBIDGE:   The reason I took your Honours to the concept of the procedure, how it works, was simply to indicate that that finding was not a finding which is possible within the context of the evidence because at that time, i.e., before, before, before – appears over and over again ‑ it was the case - it was surmised by my learned friend, or advanced.  It was a case that was accepted, but it could not be so simply because the doors had no pressure on them at any time until the guard, after the signal, actually closes the doors.

BELL J:   Yes.

MR BURBIDGE:   I do not wish to elaborate beyond that, your Honours.  I am happy to wind up now by simply saying his Honour Justice Macfarlan throughout page 104 set out a series of hypotheses which, with respect, we say are perfectly sensible and obvious hypotheses of the kind that were advanced unsuccessfully before the learned trial judge and his Honour then found at 105:

I do not consider that there is anything about these possibilities that makes them less likely than that found by the primary judge ‑ ‑ ‑

Thank you, your Honours.

BELL J:   Thank you, Mr Burbidge.

MR BURBIDGE:   If the Court pleases.

BELL J:   Can you assist us, Mr Barry?  Mr Burbidge has drawn attention to the sequence in terms of the CSA and to the doors do not lock until the signal is given.  How does that fit with his Honour’s analysis?

MR BARRY:   It is at page 16, your Honour.

BELL J:   Page 16.

MR BARRY:   At page 16 of the application book, about line 32:

Mr Meiforth explained that the CSA was meant to continue observing the train until after it left the platform, ie after the doors closed –

So that was not a matter which was genuinely in dispute but that was part of the response of the CSA.  It would be a strange state of affairs if you were closing the doors as the train was moving off rather than before the train started to move, but it would be a strange responsibility if you could as the customer services attendant stand there, turn your back while the doors are still open while people could still be in a situation where they are trapped and the train is moving off without the doors being closed.  With respect to my learned friend (a) that case was never put and, for the obvious reason it was just, with respect, nonsense. 

BELL J:   Yes, thank you, Mr Barry.  There will be a grant of special leave in this matter.  What is the parties’ estimate?

MR BARRY:   I would probably need an hour and a half, your Honour.

MR BURBIDGE:   I would need rather longer than that, I suspect, your Honour, certainly not in excess of a day, however.

BELL J:   Yes, very well.  Those who instruct you can collect the directions in terms of the filing of submissions from the Registrar.  Special leave will be granted in this matter. 

The Court will adjourn to 10.15 on Tuesday, 5 May in Canberra.

AT 12.14 PM THE MATTER WAS CONCLUDED