Hydrepair Pty Limited v Cameron

[1989] HCATrans 233

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S76 of 1989

B e t w e e n -

HYDREPAIR PTY LIMITED

Applicant

and

LEONARD CECIL CAMERON

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

Hydrepair

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 OCTOBER 1989, AT 12.33PM

Copyright in the High Court of Australia

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MR J.S. COOMBS, ~C: If the Court pleases, I appear with my

learne friend, MR W.P. KEARNS, for the applicant.

(instructed by Mallesons Stephen Jacques)

MR G.B. HALL, QC:  I appear with my learned friend,

MR G.M. WATSON. (instructed by G.H. Healey & Co)

MR HALL:  Your Honour, we have done written submissions. I do not know whether Your Honours wish those to be handed up now or when we commence our argument.

MASON CJ: You can hand them up now if Mr Coombs has no

objection.

MR COOMBS:  I have not seen them, Your Honour, and I do not

mind.

Your Honour, may I hand the Court four copies of

WATER BOARD V MOUSTAKAS to which the applicant may refer, and four copies of BROOKER V ROSZYKIEWCZ.

MASON CJ: Yes, Mr Coombs.

MR COOMBS:  Your Honours, the adversary system requires the

parties to choose the battle ground. At the trial,

Wood J. made a fundamental error. A trial judge

is not entitled to decide on a case not put by the

plaintiff because so to do is to deny the

defendant an opportunity to be heard in defence
and is manifestly unfair. The plaintiff's case

always was that the brakes failed totally;

specifically by hydraulic failure or some other

failure that produced an absolutely pedal pressure

free situation. He not only adhered to that case

but he specifically disavowed a case of inadequate stopping power or inefficient braking which is the basis upon which the trial judge decided the case

in a reserve· judgment.

Can I take Your Honours to pages 88 and 89 of

the evidence.	May I take it Your Honours are
familiar with Mr Justice Priestley's decision in particular

in the Court of Appeal?

MASON CJ: Yes.

MR COOMBS:	He was being cross-examined and he forced an answer on the cross-examiner disavowing the basis
upon which Mr Justice Wood found for him:

You told my friend that in fact you took the

wheel off?

A. That is right.

At line 5.

Q. On the Saturday before? A. That is right, we jacked it up, took the wheel off and

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inspected it, the brake drum was out of line,

had burn marks and cracks in it; the shoes had

cracks in them from trying to stop. I told

my boss about it. What else do you do? Take

my van off the road and lose my job like other

blokes?

Q.	Whilst the wheel was off you did nothing to
it? A.	How could you?

Q. I am asking did you or did you not? A. No.

Q. Who was with you? A. Wayne MacPherson.

Q. And you say he is - ? A. A fully licensed

mechanic.

Q. Do you say knowing the brakes were in an

unsatisfactory condition you nevertheless set

out to drive the vehicle wherever you had to drive the vehicle on the Monday and Tuesday?

A. If I didn't I would have got sacked from

my job.

Dealing competently enough with the question of

contributory negligence.

Q.	But the fact is you drove the car around?
A.	Yes.
Q.	But you did it knowing better than anyone

the condition of the brakes - (question withdrawn).

Q.	You had yourself looked at the brakes?
A.	But the brakes you a~.·e talking about is not

shoes, the problem I had was in the master cylinder. The master cylinder, the hydraulics, it is not part of my job to rip half the van

the brakes that happened on the van, the trouble.

apart and fix it all up.
Q.	What you say happened is the pedal went

- straight> to the floor? A; Yes.

Q. No pressure? A. That is right.

Q·~ ·~ failure in the hydraulics? A. That is right.

Q. What you had noticed before you had told

my learned friend, was sometimes the vehicle

pulled a little to the left? A.	Yes.
Q.	And sometimes it pulled a little to the

right? A. Yes.

Q. And sometimes there was pulsating?

A. That is right.

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as experienced as you - .....

Q. Pulsating would indicate to a mechanic

wear in the brake drum? .....	Q. Pulsating, you know, is a symptom of uneven
Q. Pulling to the left and pulling to the right	similarly are sumptoms of uneven wear between
the brake drums? A.	Yes.
Q.	So that the problems you have been

experiencing, as you told my learned friend,
had nothing to do with the ultimate event, did

they?

No.

Q.	The collision happened because there was
no hydraulic pressure, did it not? A.	That
is right, the brakes failed.
Q.	Not a question of it pulling a bit to the

right or the left or pulsating but a total

failure of the hydraulic system? A. Yes.

Q. Brakes going straight to the floor? A. Yes,

which should have been fixed while I was on

holidays.

Now, perhaps I ought to remind Your Honours of the

context, because there was a contest between the

parties as to whose job it was to service the brakes.

The defendants case was that it was the plaintiff's

own job to service the brakes. So, he is firmly

adhering, at that point, to something which he says

could not be said to be his job	namely, some
service of the hydraulic system.

After the accident I didn't know if I was

coming or going.

Q.	Your theory is that the master cylinder
failed, is that it? A.	That is correct.

Now, that is all corrobatory of the plaintiff's case

in-chief and the case fought by the defendant was

that the brake failure that the plaintiff deposed

to could not have happend in the circumstances and

it was assisted in large measure by cross-examination

of the plaintiff's own expert who said that it was

unlikely in the extreme that such a failure did

occur in this vehicle because of the dual tandem

hydraulic brake system and that, in any event, it

could not have repaired itself. But, the point is

that the plaintiff disavowed the general or

inefficient, inadequate stopping, that line of

country supported by the witness, Wayne, who said he

had inspected the brakes a week before and found

defects in them.

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The relevant principles are to be found in the recent decision of this Court in WATER BOARD V

MOUSTAKAS. That case concerned, inter alia, the

limitations on the power of an intermediate appellate

court to decide a case in a manner which was not

put at the trial. The principles, we would submit,

must have equal application to the process of

judging at the trial. In the joint judgment of

Your Honour the Chief Justice, Justices Wilson,

Brennan and Dawson, at page 196 line 30:

The only case which -

the plaintiff -

could have made out was one which he sought to

put -

at the trial -

for a trial is not at large but is of the
issues joined by the parties ..... Any element

of unfairness can only have arisen from the

fact that the case against the employer which

the Court of Appeal discerned, was not a case

which the plaintiff sought to make at trial and

was not, for that reason, a case which the

employer was required to meet.

Similarly, at page 197, there was in MOUSTAKAS a

particular that was, perhaps, thought to be broad

enough to cover the case which the Court of Appeal

discerned: namely, a risk that the plaintiff would

move from lane one into lane two and thereby put

himself in a position of danger. This Court said:

The employer was nver required to meet a case

that the plaintiff was hit by the bus in the

second lane and it was entitled in conducting

its defence to rely upon the case which was

actually put.	Had the plaintiff alleged in the
alternative that the accident occurred in the

second lane, the employer may have been

compelled to address in a different way the
question of its failure to erect adequate barriers,

if necessary calling evidence concerning the

feasibility of adopting such a measure. The

point was, however, raised for the first time

upon appeal -

and in this case it is raised for the first time by
a reserve judgment by His Honour Mr Justice Wood.

If one looks at His Honour's judgment at page 12

- it is cle'ar t:ha.i:: that is so. His Honour says:

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I am not prepared to find that either the

plaintiff was mistaken in his description and

initial impression

permanent impression, one is tempted to interpolate -

of sudden or total hydraulic failure. Rather,

it seems to me that his observations were

consistent with -

that is, not the plaintiff's case but the judge's

version and he finds that the plaintiff's evidence

is consistent with it. Now, in the court below,

we argued and argued strenuously that there is

absolutely no evidence to support the finding that

His Honour makes. We do not elaborate that oo:int

here because that would not be a basis for the grant
of special leave, although we will argue on the

appeal that there was no evidence to support it.

But, His Honour went on, having made the

fundamental error, to compound it. He found in his

own version an inconsistency with the evidence of

Mr Kerr who was the motor mechanic to

whom the vehicle was assigned when

the panel beating was repaired and Kerr, as

Your Honours know, gave evidence that he examined

the vehicle and not only examined it but drove it

unrepaired for some months thereafter. But

His Honour the trial judge found his version

inconsistent with the evidence of Kerr and he set

about, as he put it, to accoIIllllodate the inconsistency

between his version and the evidence of Mr Kerr

which he accepted.

The aspect of the case -

he said -

which has caused me the most concern is the

have been a witness of truth. His evidence evidence of Mr Kerr whom I also assess to	can only be accoIIllllodated with that of the
plaintiff and Mr McPherson if some intervening
adjustment or repair was effected before the vehicle was re-assigned to him.

To pause, the police attended this accident at

about 3.40 pm in the afternooon and there was a

statement written down by the policeman at about
6.30. The precise time at which the vehicle left

the scene with the tow truck nobody knows, but we

know it reached Dependable Motors the next day

and, again, we do not know the precise time. The

reason we do not know the precise times is, of

course, that there was no question at the trial of

any intervening repair. No-one was concerned to

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fill the gap between, say, 5 o'clock on one day and

whatever time the vehicle arrived at the repair

station the next day, because the matter was not at

issue. His Honour then reasoned that the defendant

had not excluded the possibility of intermediate

repair before the vehicle was reassigned to

Mr Kerr. That appears at page 13, line 15. On

the evidence, the only opportunity was overnight

and for whatever period of time could be found in

the next day, which was not nailed down because

no contest.

Intermediate repair was never the plaintiff's

case. It was never put to the defendant's witnesses.

McHUGH J:  But it did not have to be,did it? The case that

you had to meet was the case of brake failure. The

plaintiff led evidence in support of it and that

made a prima facie against him. You, then, had an

evidentiary onus to rebut that case by showing,

a, that when examined, the vehicle was not exhibiting
the relevant signs of brake failure and that it was

still in the same condition as the accident.

MR COOMBS:	Yes, Your Honour, it is true that the defendant accepted that evidentiary onus and set about to
establish that after the accident the vehicle was
not in the same condition. It is an extreme step to say that we have to exclude overnight repair when no one was saying to our witnesses in the witness box, "Look, you repaired this vehicle before you gave it to Mr Kerr." Ne one put that to any of the witnesses and the defendant is not in a position to deal with it at all when it appears for the very first time in a reserve judgment.
McHUGH J:	It is not as though the plaintiff is making a new case or that the trial judge is making a new case.
The judge infers that it could have been done and
because that possibility had not been excluded he
accepted the plaintiff's version on the balance of
probabilities.

MR COOMBS: Your Honour, there are two portions. I

understand, precisely, the portion of His Honour's

judgment Your Honour is referring to, but it

cannot stand - the reasoning is like this: I

find that the brakes were defective in some general

way~ that is inconsistent with Mr Kerr whose

evidence I accept, therefore, I infer intermediate

repair. He is not simply saying, as he does later

in the judgment - that is the importance of the

earlier passage which I read to Your Honour, "His

evidence can only -b<> acconnnodated with that of the

plaintiff if some intervening adjustment or repair".

It is essential in logic for His Honour's argument

to be a valid one.

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McHUGH J:  No, but the trial judge saw the plaintiff and he

impressed him as an honest witness and, therefore,

he was prepared to accept his account, was he not?

But he had the problem of Mr Kerr's evidence whom,

in most respects, he found was an honest witness,

although he did not accept Mr Kerr completely. If

you look at the bottom of page 12 and over on to

page 13, there are some problems he talks about

evidence being unequivocal.	But the trial judge
thought - - -

J:1R COOMBS:  That only related to when the vehicle was handed

over, Your Honour.

McHUGH J: Yes, but the trial judge thought there was a

possible reconciliation between the two accounts

from people he believed were honest and because

you had not re.butted the inferences which arose in

the plaintiff's honesty and acceptance of his

evidence, you fail.

J:1R COOMBS:  I am taking Your Honour back to the first point,

of course, when I say that he did not accept him

at all, because if he accepted him he would have found the plaintiff's versio~ not his own. But, Your Honour, it is true that we were attempting to

disprove the brake failure by saying, "The brakes

were all right afterwards, they must have been

all right at the time", so that the evidentiary

onus was on us. So, perhaps in a technical sense

it was not necessary, pursuant to BROWNE V DUNN,

for it to be put by my learned friend's predecessor

to the witnesses. But ~he consequence of the

double step is to compound the injustice of the

first step. He is only able to take the first

step on the evidence he accepted by putting in

something and making a positive finding, as he

illogically must be making a positive finding of

intermediate repair, about which there is no

evidence at all and which is not put to anybody.

So what Mr Gyles was earlier calling

"procedural unfairness" develops when that is

dropped on you for the first time in a reserve

judgment.

DEANE J:	But is not the real point in the case disclosed
from what Mr Justice Priestley says at page 40 of
the book? And that is - His Honour deals with this matter by saying:

Implicit in what I have said is that, in

my view, the conclusion the Judge came to was

in a real sense one aspect of the way the case

was put for the plaintiff at the trial.

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Well now, must not your complaint really be that

His Honour was wrong when he said that?

MR COOMBS: Yes, Your Honour.

DEANE J: Well now, once that becomes what the case is about

it becomes very,very difficult for the question

whether His Honour was right or wrong in that

cormnent on his assessment of the evidence and the

transcript to be one which is appropriate to be

brought to this Court?

MR COOMBS: Well, Your Honour, I was about to put the basis upon which we say it is a case for special leave.

I appreciate what Your Honour says but here we have

the circumstance - and this is the first basis on
which we put it is a case for special leave: the

trial judge intervenes in the way Wood J. did and

substitutes his own version for the plaintiff's

case, that is error and when that error is approved

and not corrected by the Court of Appeal the risk
of repetition is so great that it becomes a matter

for special leave just as MOUSTAKAS was a case for

special leave.

The decision is also such, we would put - to

quote Mr Justice Menzies in BROOKER V ROSZYKIEWCZ -
a case which bring the administration of justice

opening address; one is told that the case is

into disrepute and undermine public confidence.

total brake failure - complete failure of the hydraulic

system; you say to your client, "Well, of course we

can rebut that. We will rebut that out of the mouth

of their own expert with no difficulty but, by the

way, if the judge a month later can think of

then we are stuck with it. 11 It undermines public	another case and the Court of Appeal like it too,
confidence in the administration of justice.

To allow it to stand would "gravely effect" -

as Mr Justice Menzies said in BROOKER - "the

confidence of the public". A third reason why it

is a case for special leav~ we say, is that we

live in an era of judicial activism with high level

directions hearings and directions as to the way

in which trials are to be conducted and so on and
in that context it is extremely important that a

very firm brake be put on the kind of intervention -

and to scotch the interventions of the kind that

occurred in the present case. But one reads the

whole of this case, one would be tempted to believe

that defendants would feel that they can never win

and that is a bad state for administration of

justice to be in. Those are our submissions,

Your Honours.

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It is perhaps equivocal, Your Honours,

but at page 187, the plaintiff put that the brakes

had never been dealt with by any expert on brakes

at any time and the contest was what the state of

the drums was after Mr Kerr took over the vehicle.

The plaintiff just never suggested that there had

been some repair to the vehicle in the intervening

times.

MASON CJ: Yes, thank you, Mr Coombs. The Court need not

trouble you,Mr Hall. The Court is not persuaded

that there was any error of general principle on

the part of the Court of Appeal. For that reason
the case is not one appropriate for the grant of

special leave and the application is refused.

MR HALL: If the Court pleases.

MASON CJ:	Do you ask for costs, Mr Hall?
MR HALL:	Yes, Your Honour.
MASON CJ:	You do not resist that?
MR COOMBS:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 12.54 PM THE MATTER WAS ADJOURNED SINE DIE

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