Hodge v Shire of Swan

[2000] HCATrans 259

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P37 of 1999

B e t w e e n -

AUDREY HODGE

Applicant

and

SHIRE OF SWAN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 16 JUNE 2000, AT 4.01 PM

Copyright in the High Court of Australia

MR B.L. NUGAWELA:   If the Court pleases, I appear for the applicant.  (instructed by Friedman Lurie Singh)

MR M.L. WILLIAMS:   If the Court pleases, I appear for the respondent.  (instructed by Phillips Fox)

KIRBY J:   Yes, Mr Nugawela.

MR NUGAWELA:   Your Honour, I would like to, if I may, just very summarily sketch the important aspects of the chronology of this matter.

KIRBY J:   I think we have ploughed through it for ourselves; we are generally aware, unless there are some general points that you want to bring out.

MR NUGAWELA:   Well, perhaps if I could go to parts of the judgment in the court below which depart from a true analysis of the chronology and take your Honours firstly to page 36 of the application book, the first paragraph, 47, where his Honour Justice Parker said this:

On or about 17 June 1998 the appellant’s advisers became aware of two further specialist expert medical reports.  An updated report dated 10 June 1998 of Professor Hollingworth, who saw the appellant on 9 June, which in essence took further the matters noted in the earlier report.

In terms of the chronology, your Honour, that is factually incorrect.  It is the case that the second report of Professor Hollingworth did a 180 degree turn on his prior views.  If your Honours go to the first page of the application book, you would see at paragraph that the applicant plaintiff was actually going to go to trial with the earlier views of Professor Hollingworth.  She had tried to secure his attendance and was told that the professor had already been called by the defendant.  The steps she took were essentially to say, “Well, don’t call him off.  If you decide not to call him, I will use him”, the reason being that his earlier report was entirely favourable to her.

What happened in June 1998 was that the defendant had her review once again by Professor Hollingworth and prepared a further report and his views in that further report were, “Well, I’ve changed my mind”, or the words were, “What makes me now change my mind is that I’ve seen further radiological evidence”.  So that is an important factual error which was made in that paragraph.

Then it goes on to say in that same paragraph, last sentence, your Honours:

The second report was one dated 28 October 1997 by Mr Hardisty who took a position opposed to the Professor and entirely in favour of the appellant on this issue.

I just pause to note there that the respondent’s view of Mr Hardisty’s report was that it was wholly consonant with Professor Hollingworth’s and entirely in favour of the respondent.  So there was an important difference there. 

The last part of the reasons which I would like to take your Honours to factually is at page 32 of the application book, commencing at line 50, the second sentence where his Honour Justice White said this:

The appellant’s earlier application to adjourn the trial had been dismissed by Judge Macknay and the appellant’s problems seem to have arisen entirely from the fact that the appellant had elected not to call an expert medical witness until the amendment to the respondent’s pleading caused her advisers to consider that such an expert should have been retained.

KIRBY J:   Now, Professor Hollingworth was in the defendant’s camp, is that correct?

MR NUGAWELA:   He was.

KIRBY J:   Well, how can you be sure that he would be called?  There used to be an old-fashioned rule that the plaintiff had to prepare his or her case.  I mean, I know that is an odd idea, but that used to be the requirement.

MR NUGAWELA:   Yes, if I can take your Honour Justice Kirby to page 1 of the application book, on Professor Hollingworth’s old report the applicant wished to adduce his favourable view and paragraph 5.1 of that affidavit demonstrates that.  We sought to secure his attendance to give evidence on behalf of the plaintiff.  We were told that he was already giving evidence on behalf of the defendant.  We said, “Well, let us know if these arrangements are changed because if he’s not going to attend, we would want him to attend”.  At paragraph 5.2, that is the effect of the letter written to the defendant to secure an undertaking that they will not call off Professor Hollingworth, and in the event that they did they would notify us first.  So that we were going to trial on his views contained in his earlier report, and all the general practitioners which were ready, willing and able to give evidence.  What then transpired was that he did a 180 degree turn towards the end of June, the defendant amended its defence and introduced new defences in their defence.  The rest of the changes your Honours are well aware of.

So if I can go back to page 32 of the application book, the first factual error I have answered, and the last sentence which starts at line 56:

As appears from the passage cited above, counsel for the appellant informed the Court that, after the amendment to the respondent’s pleadings, nothing was done to rectify the position so far as the appellant was concerned.

Now, the “passage cited above” does not relate to the amendments to include pre-existing degeneration or novus actus interveniens of another motor vehicle accident in November 1996.  The “passage cited above” relates to the visual acuity issue and whether she could see across the entire breadth of the pool.  What did in fact happen ‑ ‑ ‑

KIRBY J:   The accident occurred in 1991.  The matter was listed for trial in 1998, was it not?

MR NUGAWELA:   22 July.

KIRBY J:   On the first day of the trial an application was made for adjournment of the proceedings.  This is truly a disgraceful set of facts.  It may not be the applicant’s personal fault.  She may have some remedies but she does not, at least it seems to me, have any remedy in this Court to come along and complain about the Full Court below or the District Court judge for taking the view which I must confess is the view I take, but it is truly a disgraceful set of circumstances.  I mean, here is a plaintiff turning up on the day of the trial and asking for an adjournment because the plaintiff’s case cannot be presented.

MR NUGAWELA:   Yes.  She comes to this Court with clean hands.  The correct analysis of that, with respect your Honour Justice Kirby, arises from analysing the chronology.  True, the accident occurred in 1991, she commenced her action ‑ ‑ ‑

KIRBY J:   You are referring to the chronology in Justice White’s reasons, are you?

MR NUGAWELA:   Yes, that is right.

KIRBY J:   Very well.  Well, we have that at page 22.

MR NUGAWELA:   Yes.  Well, what happened, as your Honour points out, she ‑ ‑ ‑

KIRBY J:   Why does not one draw an inference from that?  I know you have to present your client’s case as best you can, but why does not one draw an inference, just as the District Court judge said, that by the end of that chronology and all these listings and adjournments and adjournments, that the plaintiff is clutching at straws?  Why does not one draw that ultimately, unpalatable though it may be?

MR NUGAWELA:   It is important, your Honour, in my respectful submission, to understand what actually happened here chronologically.  She commenced an action in 1997.  It took her one and a half years to get to trial.  That is not, in my respectful submission, an inordinate delay on her part.  She was ready, willing and able to go to trial on the evidence.  She was calling the general practitioners and she was adducing evidence from Professor Hollingworth.  Whether by way of cross-examination or evidence in-chief, she was doing that.  What then transpired in June of 1998, barely a month away from the trial, is that the defendant gets a medical report from Professor Hollingworth where he does a 180 degree turn.  It then amends its defence to plead the pre-existing degeneration referred to in Professor Hollingworth’s latest report.  They then amend their defence to plead the 1996 novus actus interveniens and present this fait accompli to the plaintiff.  What the plaintiff does is she tries to secure the attendance in that short window of time, within four weeks of the trial, of four other orthopaedic specialists to no avail.  Those are the supplementary materials which I am instructed were delivered to your Honours yesterday.

She then discovers, again late discovery of a report, on 24 June 1998 from the defendant, a report of Mr Hardisty and she tries to secure his assistance.  If I can take your Honours to page 23 of the application book at item No 14, this is what Mr Hardisty eventually says on 15 July, and this is seven days before the trial.  He says “I cannot help you.  I cannot help you because it is pivotal to get a radiologist’s opinion.  It is necessary for me to examine you.  I would need to see all the documentation in relation to this novus actus interveniens that has just been introduced into the defence - the November 1996 incident – and that there is no way I can do this within the next week”.

HAYNE J:   The relevant question then becomes for us:  what is wrong with what the courts did in light of that chronology?  What is wrong with what they did?

MR NUGAWELA:   I took your Honours to parts of the reasons for decision where their Honours completely misread that chronology.  If I can refresh your Honours on page 32, for instance ‑ ‑ ‑

HAYNE J:   Before you do that, I would be much assisted if you could tell me what you say the courts below did wrong, given the chronology you have described.

MR NUGAWELA:   They made factual errors which has resulted in an injustice to the plaintiff.  Many injustices lurk in factual errors.  They made factual errors ‑ ‑ ‑

KIRBY J:   What do you say are the factual errors?

MR NUGAWELA:   The factual errors are twofold, your Honour.  First they said that – if I can take your Honours to page 32 of the application book commencing at line 50:

dismissed by Judge Macknay and the appellant’s problems seem to have arisen entirely from the fact that the appellant had elected not to call an expert medical witness until the amendment to the respondent’s pleading –

this is in June 1998 –

caused her advisers to consider that such an expert should have been retained.

There was an invitation to their Honours, if their Honours wanted to consider the state of preparedness of the appellant to go to trial, to put all the medical reports, the book of medical reports, before their Honours, and Justice Kennedy said that that will not be necessary.

This is a factual error here which is important because if this seems to be the basis of the Full Court’s decision, then it is wrong.  The appellant was prepared, the general practitioners were ready, willing and able, she was going to go to trial on the views of Professor Hollingworth howsoever adduced by way of cross-examination or evidence in-chief.  She has visited with these changes to the defence, with changed views ‑ ‑ ‑

KIRBY J:   Yes, but that all assumes that Professor Hollingworth will be called.  It is often in the interests of defendants not to call any evidence at all.

MR NUGAWELA:   That is exactly why I took your Honour Justice Kirby to the first page of the application book where we secured the undertaking from the defendant that they will not call off Professor Hollingworth and that we will then call him in its place.  He would be called either by the plaintiff or the defendant.

HAYNE J:   But the position that then obtained was that when this action was called on for trial the plaintiff was not in a position to adduce evidence in support of her claim.  If that is the position, what is wrong with the conclusions that were then reached by the primary court and the intermediate court?

MR NUGAWELA:   I am sorry, I missed what your Honour Justice Hayne put to me.

HAYNE J:   When this action was called on for trial the plaintiff was not ready to proceed to prove her case.  That being so, why were the primary judge and the intermediate court wrong to do what they did?

MR NUGAWELA:   That goes to whether the plaintiff unjustifiably took herself out of the race, so to speak.  We have two answers to that.  Firstly, the new matters that the plaintiff was faced with were of such gravity that she could not meet them in trial, and the consequences of proceeding to trial on the new pleadings and the absence of rebuttal evidence was that she would have lost.  I have included in our book of authorities the decision of the Full Court in Elders v Devereux where our Full Court, in assessing the question of relative causes between two accidents, actually discounted the award by 60 per cent on account of a pre-existing cause.  That was a decision that was delivered two or three months prior to the trial.

So the plaintiff was confronted with this choice:  “Go to trial on these new pleadings, face the expert Professor Hollingworth, who had now given me a different view from what I was prepared to call him for, without any rebuttal evidence and face the prospect of a very hefty discount on the award of damages and end up paying costs, or pull out”.  What she tried to do was what the litigant in the decision referred to be Justice White did, which was to elect not to call evidence.  It is on page 29 of the application book, the decision of Registrar v CMEU.  That decision did not raise judicial eyebrows.  The presiding judge of the Industrial Appeal Court, Justice Kennedy, set aside judgment and ‑ ‑ ‑

KIRBY J:   You want to read us judgments.  I think we are pretty familiar with the principles governing the granting or refusal of adjournments.  We know that they are discretionary decisions.  We know that mistakes can occur and appellate courts can intervene.  It is very rare that they do and you have to have a pretty strong case to indicate that an error has occurred and it has to be one of principle.  Your problem is it does not seem to be one involving any principle at all.

MR NUGAWELA:   Your Honour, we have, in summary, two quick principles, hopefully to attract your Honours’ attention.  We say that the

appellate court should have dealt with grounds 3 and grounds 4 of the notice of appeal ‑ ‑ ‑

KIRBY J:   But this is in a case where you tendered no evidence at the trial. 

MR NUGAWELA:   Yes.

KIRBY J:   It would have, at least theoretically, been open to you to call Professor Hollingworth.

MR NUGAWELA:   On his 180 degree changed views, your Honour ‑ ‑ ‑

KIRBY J:   Well, you have to prove a case.  It is a very unpleasant thing for plaintiffs.  They have to prove their case.

MR NUGAWELA:   We were going to call him and one week, or a few weeks before the trial, he provides a report where he changes his views and says that all of the plaintiff’s problems were caused by pre-existing degeneration.  Now ‑ ‑ ‑

HAYNE J:   You do not have to practise in the courts very long to be confronted with the fact that witnesses sometimes prove unlikely to swear up to their proof and that what you thought was a strong case is going to prove to be a weak case.  Is that not what happened here?

MR NUGAWELA:   Yes, your Honours, and that is why the facility of an adjournment which we sought, which was brought about not through any fault of the plaintiff, ought to have been looked at by the Full Court.

KIRBY J:   I think we understand the way you put your case.  Is there anything else that you wish to add?

MR NUGAWELA:   No, your Honours.  Those are the submissions.

KIRBY J:   Thank you very much, Mr Nugawela.  Mr Williams, the Court does not need your assistance.

The applicant contends that she was wrongly denied an adjournment of a trial of her claim for damages.  The adjournment was said to be necessary to gather expert evidence to meet allegations made by the defendant in an amended defence which was filed by leave granted a month before the date fixed for the trial.  No question of principle arises in this matter.  The decision of the Full Court of the Supreme Court of Western Australia is not attended by doubt.  It follows that special leave to appeal must be refused.

MR WILLIAMS:   Your Honour, I simply need to be heard on the issue of costs.  I would move for an order that the applicant pay the respondent’s costs.

KIRBY J:   Yes.  I think you agreed, did you not, that you would not make oral arguments if the matter were dealt with on the papers, is that correct?

MR WILLIAMS:   That is correct.  I do not know if that was meant to be intended, sir, going to the issue of costs though.

KIRBY J:   It reinforces your application and you are entitled to them, unless Mr Nugawela can say something in response.  Mr Nugawela, is there any reason why the ordinary order for costs should not follow?

MR NUGAWELA:   No, your Honour.

KIRBY J:   The application for special leave is refused with costs.

Adjourn the Court to 1.30 pm on Monday, 19 June, in Brisbane.

AT 4.22 PM THE MATTER WAS CONCLUDED