Jackamarra v Krakouer

[1997] HCATrans 296

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P28 of 1997

B e t w e e n -

BRONITA KARLA JACKAMARRA an infant by her next friend STELLA JACKAMARRA

Appellant

and

WILLIAM DARREN KRAKOUER

First Respondent

and

STATE GOVERNMENT INSURANCE COMMISSION

Second Respondent

BRENNAN CJ
McHUGH J

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 23 OCTOBER 1997, AT 10.02 AM

(Continued from 22/10/97)

Copyright in the High Court of Australia

BRENNAN CJ:   Yes, Mr Batros.

MR BATROS:   Thank you, your Honour.  Your Honours, having had the opportunity to consider the course of proceedings of yesterday, I have given it much thought.  I have also consulted with the second respondent and I would like, in addressing the Court today, to continue with a practical approach to the matter.  Basically, if I could take up from yesterday and firstly to address this whole problem of the fact that the transcript and the exhibits were not before the Full Court at the time it came to the decision that it did, whether that decision is in fact correct or not.

In saving time but still referring your Honours to paragraph 5 of the outline of submissions that have been submitted on behalf of the second respondent, I do not intend to read out to your Honours what has already been there in print and your Honours no doubt have already read, but it is in the context of those submissions, paragraph 5 which stretches from pages 11 to 14, that the second respondent makes its submissions to this Court.  It may be that in a short time I will be able to be of some practical assistance to this Court. 

None of these grounds of appeal are conceded.  However, there is a difficulty acknowledged within paragraph 5, namely, that the Full Court did not have this particular material before it.  The questions were, prior to coming in here yesterday, two, namely, is that an omission - and the answer is that it is - and the question then is:  whose fault is it?  It is gently suggested in this paragraph if it is read with care - and I am sure your Honours have read it with care - there is an onus on the applicant to satisfy the Court as to the merits, and the merits simply an arguable case - I do not put it any higher than that - and that it is for the applicant to describe the area of the Court’s inquiry.

KIRBY J:   Would you satisfy me as to what was listed.  What was in the West Australian that morning?  Was it the hearing of the appeal or was it not, as I understand, simply two motions?

MR BATROS:   Two motions only, your Honour.

KIRBY J:   You would not expect that the matter would sail on to be the hearing of the appeal.

MR BATROS:   No, but the Full Court, in my respectful submission, properly applied the law and called on the counsel for the applicant to satisfy it that there was an arguable case.  If in fact it is the view of this Court that without that transcript material the Full Court’s function simply could not have properly taken place, then the matter never got off the ground.  Normally speaking, one would then have to send it back to the Full Court for the purposes of it properly exercising its function.

In fact, at the very end of these submissions of mine on page 16, what I have put on behalf of the second respondent, which is different from the relief that my learned friend seeks, I have said that in the event that your Honours find that because there was not the requisite material before the Full Court that its function has entirely miscarried, then the relief suggested there is that the two applications should be remitted to the Full Court for rehearing de novo according to law.  That is not what the appellant would have if the appellant succeeds.

My instructions are now to change that part of the submissions at page 16, namely, that if in the event this Court finds and says to the Full Court that its function miscarried, then to simply go back to square one would be almost a futility because what would happen if this transcript were put before the Full Court and all the exhibits, and particularly if my learned friend and I were back there arguing it, it would develop into the sort of mini appeal that has been disapproved in the rather helpful case to, which I will make some reference later, of Norwich and Peterborough Building Society v Steed.  This contemplation was actually mentioned and discussed there by Lord Donaldson of Lymington.

GUMMOW J:   We do not need to be told what the English Court of Appeal does in procedural matters, surely to goodness, in this day and age.

MR BATROS:   It was just a helpful - I quite admit, your Honour, that it is merely persuasive and of some interest.  But it would have developed into really a mini hearing of the appeal which would have been out of the context of such dual applications.

BRENNAN CJ:   Mr Batros, what is the relief that you suggest we should in this event grant?

MR BATROS:   I do not suggest that the Court should grant any in that sense, your Honour, but contingently, if in fact your Honours find that the Full Court has fallen into error, then the appropriate relief would be as my learned friend has requested, namely, that your Honours grant an extension of time.  I would suggest that if your Honours were so to do, it would be for six weeks, for example, and that the appeal be therefore entered hopefully and that the appeal be heard then on its merits.  If in fact your Honours consider that there is any merit in any of these grounds of appeal, the appropriate relief then would be an extension of the time, hopefully again, your Honour, with some clear warning that it would not or should not be extended further unless for very good reason.  But it would be a futility simply to send it back again for the Full Court to look at a mass of material on just an interlocutory hearing of the matter.

GUMMOW J:   So what, we would defer the strike‑out application and stand that over, I suppose, would we?  On the cross‑application for extension of time, give the extension of time?

MR BATROS:   Yes, your Honour.

GUMMOW J:   If the extension of time was not complied with, the dismissal application could be relisted?

MR BATROS:   That is right.  That could be looked at anew, looked at afresh, yes, your Honour.

BRENNAN CJ:   The question is:  what is the contingency on which that relief would be granted and the argument against it?

MR BATROS:   Basically, your Honour, if I may address the Court in this way, the question really comes down to whether or not this was a case in which the Full Court was in a position where it could not have concluded that there was no merit in the grounds of appeal because there was insufficient material before the court on the matter so to find and that thereby its function miscarried.  As was said in Court yesterday, it was put that that may be the case provided that the judgment does not indicate that there was not an arguable case.

I had ended yesterday in making the submissions to the Court that this was a judgment which was pregnant with findings and statements of the evidence which showed that rather than this lucid interval factor which my learned friend considers is fundamental to his argument, namely, that the doctors relied on the lucid interval suggestion in coming to their diagnosis of child abuse, rather to the contrary.  If one goes through the judgment - and I am able to take your Honours through the judgment to the references - it is abundantly clear that the trial judge has recorded the true basis of the majority medical opinion which, as I summarised yesterday, was the severity of the head injury, the fact of retinal haemorrhages being inconsistent with the motor vehicle incident alleged by the father, and also the fact that it is unlikely that you would get this sort of brain damage with a single impact.

KIRBY J:   But how is it possible for us to decide that without the parts of the appeal papers which you have agreed are not properly before us?  Inconvenient though it is, people do bring appeals, they do challenge factual findings.  They are perfectly entitled by law to do it.  It is generally a tedious but necessary thing of appellate judges to go through what the findings are and test them by what the transcript shows.  If you do not have the transcript before you, you cannot do it.

MR BATROS:   I take your Honour’s point, but who has the onus of putting that transcript before the Full Court in this particular case?

KIRBY J:   On the appeal the appellant, but the appeal was not before the court.  What was before the court were two motions.

MR BATROS:   Yes, but one of those motions, with respect, your Honour, was an application to extend time which carried an onus, in my respectful submission, on the applicant to address the court in respect of the merits.

KIRBY J:   I have sat on a thousand motions of this kind and it is never the case, unless the appeal books are ready for the appeal, that they are put before the court.  Affidavits are put before the court, particular evidence is put before the court.  It is very rare to get the full appeal papers before the court.

MR BATROS:   I take your Honour’s point, but in this case there was no material put before the court as to the merits by the applicant other than the judgment and the grounds of appeal.  In this current situation, as is stated, if I may simply refer your Honours to it at the top of page 14, it appears, at least prima facie, a harsh proposition that where an applicant represented by senior counsel chooses not to put before a Full Court for its consideration as part of his argument the very documents - that may need amendment - he now says the Full Court should have referred to in forming its judgment, that the Full Court should be criticised for not going to that very material of its own motion unsupplied and undirected because the grounds of appeal themselves before this honourable Court are that the Full Court should have gone to the transcript.

The transcript is actually mentioned.  I am sorry, “transcript” is not mentioned.  It is “considering the evidence”.  I am referring to grounds 2.5 and 2.6 here.  So the allegations before your Honours by way of grounds of appeal are that:

2.5  The Full Court erred in concluding that Ground 5 could not succeed (FC 15) because the learned Commissioner’s finding there complained of was “clearly open on the evidence”, without considering the evidence itself but relying only and entirely on the reasons given by the learned Commissioner.

2.6.....without having before it the testimony and reports of the various medical experts.

The question that I ask this honourable Court to consider is:  who has the onus of putting that material before the court?  If that has to be considered in order for the court to properly exercise even its interlocutory function, then someone has to put it before the court unless the court is to be given the obligation itself to go and have its own independent resource to that material.

BRENNAN CJ:   There are two questions, are there not?  One is:  did the Full Court decide this matter so far as merit is concerned by holding that the applicant for relief had not produced the material on which a decision could be made, or did they decide it on the basis that they had sufficient material and that there was no merit?

MR BATROS:   I would have to say, your Honour, that it would have to be inferred from the judgment that they considered that they had sufficient material before them to make the evaluation.

BRENNAN CJ:   Then the question is:  is that right or is it wrong?

MR BATROS:   The most that could be said from my side of the Bar table on that would be that the Full Court was entitled to rely upon counsel for the applicant to put sufficient material before them and on that reliance was entitled to act.

BRENNAN CJ:   In other words, was entitled to act on the footing that there was nothing in the evidence or in the exhibits which might cast any doubt upon the propositions which they derived from the judgment in the court below.

MR BATROS:   My respectful submission is that the Full Court is entitled to rely upon senior counsel to put before the Full Court on such an application all the relevant material that would support the application.  It may well be - and I, knowing intimately this transcript, seek to excise any personal view or personal knowledge which will not help this Court - that if the full transcript, for example, had been put before the court, that that may have only reinforced the Full Court’s decision.  Certainly that was the same evidence that the learned Commissioner used to come to his very, very solid findings of fact.  There is the Full Court sitting up there hearing an application.  Surely that Full Court is entitled to rely upon counsel to put the relevant helpful material before it.  It may well be that the material not put before the Full Court was not helpful.

BRENNAN CJ:   Then you can proceed on the footing that counsel did not do so and that therefore the Full Court was left with nothing but the judgment.

MR BATROS:   The judgment and the arguments and the notice of appeal.

BRENNAN CJ:   With that material, what did they make of it?  Were they entitled to make what they did of it?  That is the question, is it not?  They might be entitled to say, “In the absence of this other material, then we are able confidently to come to the view that”.  That is one way it can be approached.  If you want to adopt a Jones v Dunkel approach to it, no doubt that is an argument that is open to you, but you still have to consider whether or not the Full Court on the material before them came to the right decision.

MR BATROS:   Your Honours, given that no other material was put by counsel to the Full Court and given the nature of the judgment - and it may be that I should take your Honours to it - which is emphatic and very clear in its findings of fact and in its statements of what the medical evidence was, my respectful submission is that any error in not putting further material before the Full Court belongs with counsel rather than the Full Court.

BRENNAN CJ:   You have put that argument.

MR BATROS:   May I submit before going to the judgment itself, which is a very strong and clear judgment and which on its face shows that the majority medical opinion was not based on this lucid interval factor at all - in one case there is reference to it of course because the fact of a deliberately or non‑deliberately inaccurate testimony or history from a father can be consistent with child abuse, that it is based on these other independent factors.  But if in fact the Full Court is to be criticised and found in error in not seeking further material, the real question then is:  what procedures should it have adopted and how should it have conducted the matter further so that it not fall into error if counsel himself does not proffer the relevant information?

If I could take the Court to the judgment then and to the relevant references, not only are they findings of fact but they are the very red flags to which I referred yesterday.  If I could refer first to page 298 at line 10, what I am saying is that all of this was so blatant and so clear that the Full Court could reasonably expect that if there were material that could be put before the court to challenge this, then it would have been.  Basically, your Honours will find at page 298, line 10, it is recorded that Dr Christensen, who was the first doctor to see the unfortunate little girl, says that the head injury was out of proportion to the history and the “lucid interval” itself “was inconsistent”.  So there is the first statement of anyone saying that the head injury was out of proportion to the history.  What is being referred to, as it emerges clearly, is that it is not the post‑alleged accident history; it is how the impact is alleged by the father to have happened.  There is the first statement.

KIRBY J:   All of this assumes that the appellant has no right, if they can get the extension of time, to challenge this and to test it against the transcript which we do not have.  That is a basic right.  If you have a right of appeal, subject to getting out of time, which is a rather short time lapse here and only on a procedural matter, you have a basic right to go to a court and put your case and you have the transcript.  It is tedious and it is often very boring but it sometimes succeeds, and it is a person’s right in this country.  That is what has not happened.

McHUGH J:   Add to that the fact that counsel for the applicant conducted his submissions on the basis that he would at the appeal want to refer to evidence.  Let me give you an analogy.  Supposing at a trial there was an objection to the admissibility of evidence and counsel said, “It’s admissible, your Honour, because I will link it up with the evidence of X whom I later intend to call”.  Could the trial judge simply then say, “I reject the evidence because you haven’t put before me the statement of X”?  That seems to me to be a fair analogy with what has happened here.  Counsel was telling the court the way he wanted to put his case and it was conducted on that basis and then you get a judgment which deprives him of the opportunity to do what he wanted to do.

MR BATROS:   I take your Honour’s point as to nisi prius but, when one comes back to what happened in this case, by simply promising in futuro that “I’ll refer to this transcript at some later time and develop my case”, does that not effectively deprive the Full Court of the ability to carry out its function to determine there and then on that application for extension of time whether or not there is an arguable point?  It is really being promised, “Just trust me.  I’ve got an arguable point.  I’ll demonstrate it at a later time.  Meanwhile, grant the application”.

McHUGH J:   In that case, if the court was not prepared to act on counsel’s statements from the Bar table as to the way he wanted to approach the case, then one would have thought the judges would have said, “Well, that’s all very well for you to say that but we would like to have a look at the evidence”.

KIRBY J:   You see, the principle you are arguing for would telescope the process and you are seeking, as I understand it, that we lay down a principle that you have to bring all your evidence on an interlocutory application of this kind, but the problem with that is that it puts a person who is an appellant at a disadvantage because effectively, instead of having the appeal on the merits dealt with on a full hearing, they are really getting a sort of semi hearing, a pseudo hearing, and they are at risk that this telescoped hearing will not be the thorough, proper appeal to which they are entitled.  It is true that the merits are significant and it is true that futility is not something a court will usually condone, but a principle that telescoped it and effectively had an appeal at a disadvantage is not one that I find very attractive.

McHUGH J:   It is not surprising that you won on this.  One has only to look at the judgment.  Your case is overwhelming.  The thing that troubles me about this case is a deep suspicion that, sent back, you will get exactly the same result even if you had the transcript before the judges, but things have to be done properly.

MR BATROS:   And that is totally understood, not only by me as an officer of the court, but it is totally understood by the second respondent.

BRENNAN CJ:   That is a consolation and is quite irrelevant.

MR BATROS:   The second respondent seeks to abide by the decision of the Court in this matter.

KIRBY J:   It has to.

MR BATROS:   Of course.

KIRBY J:   The Court will make its order.  You are not here as a submitting appearance; you are contesting.  Therefore, telling us that you abide by our order is really irrelevant.  You must abide by our order.  Our order is the law of the land.

MR BATROS:   Thank you, your Honour, of course.  Is it your Honours’ view that, in the circumstances before the Full Court, the Full Court should have made further inquiry of counsel before considering simply the material before it?

McHUGH J:   That is one view I put to you.  I have no concluded view about this case one way or the other.  I find it quite a difficult case, to be perfectly frank.

BRENNAN CJ:   Mr Batros, perhaps your strongest argument will be developed by looking at the judgment of the court below and demonstrating that on no possible view could any contrary finding of fact be arrived at, no matter what is in the transcript or in the exhibits.

MR BATROS:   Then may I take your Honours through the judgment.

BRENNAN CJ:   I have put that too highly; I have put it on the basis there is no possible way.  It is really a question of whether or not it might be arguable that by reference to transcript and evidence, some different conclusion could be arrived at.

MR BATROS:   The phrase yesterday, as I recall it, your Honours, was whether or not it was a judgment that indicates that the appeal was not fairly arguable.  It is possibly another way to put it.  May I take your Honours to the relevant sections of the judgment where, given the fact particularly that Mr Stokes was never involved in the case at the relevant time but was only coming in as a consultant some seven and a half years later and given the unanimity between the three experts as to their diagnoses of child abuse which were, in my respectful submission, independent of this lucid interval factor which no one believed, this judgment does really fall or may well fall within that category.

If I could then give your Honours the references.  I have mentioned page 298 already.  I go to page 299, line 10 and following, where the trial judge, the learned Commissioner, sets out in detail the interpretation by Dr Duncan of the photographs.  Your Honours have probably already read these, but this is therefore before the Full Court and also Dr Duncan’s interpretation of them.  The differences in age of the bruising was of some very considerable significance in Dr Duncan’s opinion.

The next aspect is at the top of page 300 at line 10 where it is recorded:

In addition to the bruises on admission the plaintiff was noted to have a retinal haemorrhage in two areas of the right eye.

I mention to your Honours then also on page 300 at line 20 that the whole Princess Margaret Hospital file was admitted as an exhibit and then the text of a note that was writt en into that exhibit of Dr Duncan was read out in full.

The next relevant section is at the bottom of page 300, lines 43 to 45 where the learned Commissioner says:

With some differences of emphasis, all four consultants were strongly of the opinion that the overall pattern of the plaintiff’s injuries was suggestive of deliberate child abuse.  Dr Duncan said that the bruises to the plaintiff were most unusual in their position.  They could not be explained by the usual misadventures to a toddler.

And he goes there into detail.  Over the page, on page 301 he says:

All four consultants considered that the plaintiff had suffered a severe brain injury which had caused serious intracranial swelling.  This was described by Dr Duncan as a “severe neurological insult”.  Mr Wong and Drs Duncan and Gurry -

and I just pause to say that that trio is often referred to in the same phrase because they were so unanimous in their view as against Mr Stokes, who was equivocal in his view.  There was no evidence ‑ ‑ ‑

BRENNAN CJ:   Were those three cross‑examined about their views?

MR BATROS:   Yes, they were cross‑examined.  One of them was called by the plaintiff.  That was Mr Wong.  He started off as the plaintiff’s witness and it was under cross‑examination by counsel for the second respondent, then the second defendant, that he made - I do not like to use the word “damning” - the absolute statements as to child abuse and incompatibility with an incident such as described by the father.  So you have there one witness who was called by the plaintiff.

BRENNAN CJ:   How would the Full Court know that the appellant did not have some grounds for challenging the proposition, for example, that all four consultants were strongly of the opinion that the overall pattern of the plaintiff’s injuries was suggestive of deliberate child abuse?

MR BATROS:   With respect, your Honour, by necessary inference from the fact that no argument was put to them to the contrary by counsel for the applicant on the application they were hearing.  I mean, he can read this.  If, in fact, he has got some grounds for attacking it, then he should be telling the Full Court about it.

BRENNAN CJ:   And the whole thrust of the appeal that that conclusion is wrong.

MR BATROS:   That that conclusion was wrong, but not that that was their opinion.  At the moment it is simply:

Mr Wong and Drs Duncan and Gurry placed great significance on the presence of the retinal bleeding in the right eye in conjunction with the brain injury.

Now, my learned friend knew that that was, in fact, the evidence of those doctors.  Whether in forming that opinion they got it wrong or not is another matter, but his only argument there was as to this lucid interval factor and that is why I was mentioning the lucid interval yesterday.  It is not the basis of their opinions.

BRENNAN CJ:   How do we know that?

MR BATROS:   If I go through this, your Honour, I believe I can demonstrate it from the material that was before the Full Court, namely, in this judgment.

BRENNAN CJ:   Does not the Full Court derive all its findings of fact from the trial judge?

MR BATROS:   Yes, your Honour.

BRENNAN CJ:   Are they not the findings which are under challenge?

MR BATROS:   Not the findings of fact as to what the opinions of the witnesses were, but only as to whether - this is the argument and really the basic argument for the applicant/appellant, was whether the basis of the forming of those opinions was flawed, namely, that they took into account the lucid interval.

BRENNAN CJ:   How does one arrive at the conclusion that that argument is wrong?

MR BATROS:   There are only two ways you could do it.  One would be to go to the transcript and find out whether my learned friend is right or wrong, and he and I would disagree on that point, and the other would be that if, in fact, within the body of this judgment there is a statement or finding on the matter.

BRENNAN CJ:   But that finding must in turn depend upon the transcript and the material that was tendered.

MR BATROS:   Well, that is so ultimately, your Honour, that is so.

BRENNAN CJ:   And that is what is challenged.

MR BATROS:   Would that not have the result, your Honour, that any application for extension of time would necessarily succeed if insufficient material is put before the Full Court to decide the matter?

BRENNAN CJ:   It depends on the facts of the case, the circumstances of the case.

MR BATROS:   As I heard the Court yesterday and subject to the fallibility of ....., I heard the Court indicate that provided the judgment itself does not indicate that the appeal is not fairly arguable, then the court needs to have that primary material, in this case the transcript or something equivalent to it, but here one has a judgment which, in my respectful submission, red flags the very inquiry, the very recourse back to the primary material to which your Honour refers, but if, in fact, no judgment can be so putting of an applicant/appellant on notice to save the situation then there would really be a futility in my taking you through this judgment, no matter how articulate it was, but I understood the Court - and I do not want to waste your time doing that.

BRENNAN CJ:   Well, you put the argument that you think is necessary to support your case but, I mean, the proposition you recite from yesterday’s proceedings, to take an absurd example, might be if it appeared, for example, that the Full Court had said, “This appeal cannot succeed because the plaintiff is an infant”.  Now, that would not depend at all upon any prior findings of fact.  It would depend upon a most egregious error of law.

MR BATROS:   Quite so, your Honour.

BRENNAN CJ:   And if there had been such an error which appeared in some judgment or another and had been corrected on appeal, then the correction itself would show how clearly any further appeal would be futile.  It depends very much on the nature of the proceedings.  Here, as I understand it, there are findings of fact which, if they are supported, must necessarily result in the dismissal of the appeal, but the question is, are they to be supported?  It may be that the evidence is overwhelming, terribly powerful.  The judgment indicates that it probably is, but one cannot really form that view, can one, unless one looks at the transcript on which it is based?

MR BATROS:   That is so, in fact, your Honour, and that has, in fact, been conceded in the written submissions to which I have referred and if one looks at those and I would go, for example, to paragraph 6 on page 14, it is conceded that to rebut the proposition in the third ground of appeal it would require a detailed analysis of the transcript of the evidence of the lay and medical witnesses and their reports, which the Full Court did not do.  So I have conceded that and it is really only a question of where the error lies and if, in fact, this honourable Court is of the view that the error in the circumstance lies at the foot of the Full Court then I cannot take that matter any further and would not, if that is your view, because I have already made the concession that one would need in order - you would need to make, and I use the phrase at the top of page 15, an exhaustive analysis of the evidence and that is what would be required to establish one way or the other my learned friend’s proposition.  Now, if, in fact, there is no procedural burden on the applicant to put that material, put all the relevant material before the Court, but that the burden is on the Court to inquire or eke it out, then I cannot contest those grounds.

BRENNAN CJ:   The Court will no doubt be reserving its decision, Mr Batros, so it is not for the Court, I think, at this stage to give you an intimation.  It is a matter for you to put whatever argument you think right.

MR BATROS:   Yes, and what I advance in that regard, your Honours, is that it imposes too heavy a duty on the Full Court in such circumstances and that the Full Court ought be able to rely on counsel to put the relevant material before it and that in this particular case this judgment was, as I put before, heavily laden with all relevant evidence.  May I take some time simply to give the references to that to the Court.

HAYNE J:   Just before you do, Mr Batros, can I see if I can capture what I understand to be the point you wish to make?  The question first is whether it is for an applicant who is out of time, an appellant who is out of time, to show that the appeal is arguable.  If it is for the appellant who is out of time to show that the appeal is arguable, is that burden discharged by showing that the question which it is sought to challenge on appeal is a question of fact?  Must the appellant go beyond the bare assertion that it seeks to challenge a finding of fact below?  Must it go to the point of bringing evidence before the Full Court which would show, not simply that the argument is formulated in a particular way, but that the argument is one which may have some prospect - and I leave aside what - of success?  Is that the point?

MR BATROS:   Your Honour puts it very succinctly and thus that mere assertion that there is a point is not an establishment of that point to any extent at all and I sought to summarise that in the bottom half of page 2 of the supplementary submissions that I put up yesterday because my learned friend refers to this aspect of the lucid interval factor and only refers to it twice and I think that ‑ ‑ ‑

HAYNE J:  

But then is the argument to be advanced by us going through line by line the judgment of the primary judge?

MR BATROS:   Not beyond seeing, your Honour, the extent to which my learned friend was put on notice, by the very judgment itself, of the very significant task ahead of him, not only on any ultimate appeal, but on the application itself.

McHUGH J:   I find the logic of the propositions that you have just adopted from Justice Hayne’s formulation quite persuasive, but what troubles me generally about this case is that it does not seem to be the way the case was conducted when one reads the transcript of argument.  Both sides seem to be making statements from the Bar table about the nature of their case and that was the issue that the Full Court was being called upon to decide and, instead, it has gone away and written a judgment which really deprives the plaintiff of the opportunity of putting these sorts of arguments that it had indicated she was going to put.

MR BATROS:   With great respect, your Honour, the only word you used there that I would suggest is possibly not appropriate is that the judgment deprived the appellant of putting the arguments which were appropriate.  That is to put the appellant or the appellant’s counsel into an entirely passive situation.  The appellant’s counsel could have decided of his own motion to make those arguments.  It is not the Full Court that has deprived the appellant.  It is the appellant who has, in effect, deprived the Full Court, if anyone has been deprived.

McHUGH J:   Yes, but the proceedings seem to be conducted on the basis that the parties were not required to analyse the evidence in detail, to put detailed submissions to see whether there was an arguable case.  Both sides spoke in generalities and referred to what was in the evidence, what was in the transcript, and that was the basis upon which the court was going to decide it.  Now, I do not know what the practice is in Western Australia, but certainly in New South Wales of long experience there judges frequently act on the basis of what responsible counsel tell them of the nature of their case and that they accept that they are not going to make outrageous allegations and I must say if I had been the Full Court, that is the way I would have understood the arguments in this particular case and if I had wanted to go into the detail I would have asked counsel about it, but I fully appreciate the force of your argument that this would have been much better dealt with if you did have the transcript of evidence before you and one might have expected that you would, but it does not seem to be the way the case was conducted.

MR BATROS:   Having read the transcript and not having been involved in this aspect of the case - I was involved with it nisi prius, but not on these applications - with great respect I would take the same view of a reading and it is a case where I would have to say as an officer of the court that had there been detailed argument put before the court, even detailed submissions and references to evidence, that a Full Court might, had that been done, have concluded that it would have amounted to a hearing of a mini appeal and decided on that basis that in the interests of justice there should be an extension of time and that is something which has troubled me in my reading of all of this.  But the fact of the matter is that the Full Court did not require it and neither counsel put up the detailed submissions and when it came to the merits, the onus was clearly on the - to go only a small step, granted, only to an arguable case - but that the onus was clearly on the appellant.

McHUGH J:   Well, speaking for myself, I think I understand the way you put your case.

MR BATROS:   In respect of those fifth and sixth grounds of appeal, and it is really the fourth, fifth and sixth really go together, I cannot put it higher and I am reluctant to tediously and needlessly take your Honours through a judgment which you have already read.  You have already either appreciated how strong the notice of the findings of fact and the difficulty that the applicant had in respect of the merits.  I really do not think it is going to be a fair exercise of your time for me to take you through all those references.  If your Honours would like me to give you page references of the matters I consider important or to go through them very briefly, I would be happy to do so, but I am reluctant to hold the Court up unnecessarily.

BRENNAN CJ:   Perhaps if you give us the page references, that should suffice, Mr Batros.

MR BATROS:   Thank you, your Honour.  I will do that.  I can give a very brief comment with each one if that helps or not.  I had got up to page 300 of the appeal book.  I had probably mentioned at lines 43 to 45 that all consultants were strongly of the opinion it was child abuse.  Over the page, 301, line 10:  Wong, Duncan and Gurry said retinal bleeding invariably indicated severe shaking.  At line 39 on the same page:  it was unlikely to be caused by violent braking, although it was possible.  At lines 40 to 42:  the history “was inconsistent with the injuries found”.  Lines 42 to 44:  such an injury would produce immediate unconsciousness.

Over the page, 302, lines 2 to 5:  Wong, Duncan and Gurry were of the opinion that retinal haemorrhaging was more likely due to shaking than deceleration in a motor vehicle accident.  Importantly, your Honours, on 302, lines 20 to 30 the vital extract from Dr Gurry’s report, exhibit 7, of 19 May 1995 is set out in full and this was referred to Mr Stokes; it was referred to Mr Wong and I think also Dr Gurry and they all agreed with it.  On page 302 still at line 36 Mr Wong says that in his view it was child abuse caused by a combination of “shaking and a blow to the head” and, of course, your Honours know the role that Mr Wong played in this.  He was the specialist neurosurgeon who was a co‑admittor of the infant to hospital together with Dr Duncan.  Page 302 lines 49 to 50 where the evidence of Dr Gurry in respect of ‑ ‑ ‑

BRENNAN CJ:   I think we have got page 302.  What is the next page?

MR BATROS:   Page 302 lines 49 to 50.  The next page reference 303 at the top of the page where the braking incident was not severe enough to produce the head injury in Dr Gurry’s view.  Mr Stokes’ evidence is dealt with at page 303 and it is clear from his evidence that he is giving ‑ ‑ ‑

BRENNAN CJ:   We can read this for ourselves, Mr Batros.

MR BATROS:   All right.  Page 304 lines 3 ‑ ‑ ‑

BRENNAN CJ:   You do not have to take us page by page.  If there are specific page groups which you wish us to refer to, please do so, otherwise we can take it that we can read the judgment page by page for ourselves.

MR BATROS:   Certainly then from pages 304 through to 308 - I am sorry, that was in particular 304 to 305, then the findings and conclusions at 315 through to 319.

BRENNAN CJ:   Thank you.

MR BATROS:   Your Honours, may I refer to the first two grounds of appeal which fall into a different genus in this appeal and in my outline dated 15 October 1997 your Honours will see on page 2 at paragraph 2 I submit that the appeal raises four basic issues.  I have really been dealing so far with (c) and (d), but the four basic issues are, “Did the Full Court make an error of law as alleged in ground 2.1 of the notice of appeal?” and your Honours will know that this is an allegation that the Full Court was wrong in law in applying too high a test.

Because I have in the outline put detailed submissions in writing which really encapsulates all of what I would want to say to you in respect of ground 1, you find that from pages 2 to 7 in which the basic submission is that the Chief Justice, who wrote the majority judgment, did not get it wrong, that there is, in fact, a misquotation of him at a particular page

reference.  Do your Honours want me to go through this or is the written submission sufficient?

BRENNAN CJ:   The written submission is sufficient to direct us, unless there is something you wish to supplement on.

MR BATROS:   There is nothing new.  It is all there.  I would only be repeating myself and thus I am asking that in any event that your Honours would dismiss the first ground of appeal on the basis that there was no error of law made in getting the test right by the Full Court. 

Then there is the second ground of appeal which says that there was an error in law in respect of failing to require the respondent to satisfy the court that the appeal was untenable, et cetera, and similarly as to that in paragraph 4 of my submission I have put all that I would want to say and I would, therefore, also ask that that ground of appeal not be allowed.

The other three or four actually fall within the constellation of whether or not the Full Court had sufficient material before it and I have addressed your Honours in that regard.  Now, if, in fact, your Honours are minded to allow any of the grounds of appeal, I simply reiterate that the second respondent would submit that there would then be leave granted extending time for six weeks but not longer and that the question of the striking out be reversed but left then on an adjourned sine die basis, so that it could be reverted to if, in fact, it need be and one would hope that it would not be.  May it please the Court.

BRENNAN CJ:   Thank you.  Mr Roberts‑Smith.

MR ROBERTS‑SMITH:   Yes, if your Honours please.  Might I first hand up copies of the orders and rules which your Honour the Chief Justice asked for yesterday.

BRENNAN CJ:   Yes, thank you.

MR ROBERTS‑SMITH:   We were going to hand up copies of the actual authorised promulgated orders and rules, but they have been amended a number of times and so, for the convenience of the Court, we have taken the extracts from ‑ ‑ ‑

BRENNAN CJ:   These are the rules which were in force at the time of the making of the order by the Full Court?

MR ROBERTS‑SMITH:   I believe that is the case, sir, yes.  I am handing up a copy of Order 63 of the Supreme Court Rules together with sections 58 and 59 of the Supreme Court Act and section 79 of the District Court Act, the latter which deals with appeals from the District Court to the Full Court.

BRENNAN CJ:   Am I right in thinking that the requirements up to rule 7 have been complied with?

MR ROBERTS‑SMITH:   Yes, your Honour.

BRENNAN CJ:   What about rule 13?

MR ROBERTS‑SMITH:   Yes, I think, as appears from the chronology, that was done and there was also the reference I think I made yesterday to the affidavit of Monica O’Brien.  I think it was in paragraph 10 of her affidavit which set out what had been done.

BRENNAN CJ:   What has happened to the appointment to settle the appeal book index?  It has been settled.

MR ROBERTS‑SMITH:   It has been settled, your Honour, yes.  All that needs to be done, as I understand it, is actually to have the appeal books put together now in accordance with the index as settled and, of course, filed with the entry for hearing.

BRENNAN CJ:   Yes.

MR ROBERTS‑SMITH:   Your Honours, if I may briefly respond to my learned friend.  In relation to his submissions as to the material before the Full Court and why it was not there or whether or not it ought to have been, our first submission is that it was not, in fact, an error on the part of any person nor, indeed, on the part of the Full Court that the material was not before it on that interlocutory application.  It was not the kind of application, in our respectful submission, in which one would expect to have the full transcript and exhibits before the Full Court.

We say that without canvassing or recanvassing the submissions we made yesterday on the basis that to the extent that merit was a relevant consideration, it was a relevant consideration only to the point of demonstrating that an appeal would not be pointless or patently futile and it did not need to go beyond that, having regard to the other factors which, in our submission, were relevant.  So it was not appropriate that the material be put before the Full Court on that occasion.

KIRBY J:   The thing you have got to really meet is that that may be so as a general rule, but that in this case, so weak was your client’s case on the face of the decision of the Commissioner, that it sent a red signal to you that, especially given the authority of the Full Court of Western Australia, there was an obligation on you special to this case to establish that you had an arguable case at least and that you were content to leave it without that.

MR ROBERTS‑SMITH:   That is a submission that is put against us, if your Honour pleases.  The response we would make to that is that the merit of the appeal was apparent in this sense.  It was apparent from a reading of the various grounds of appeal which, as your Honours can see when your Honours look at them, are directed in many instances to the very findings and conclusions which are, of course, so forcefully and strongly expressed by the learned Commissioner. 

It was those very findings which were attacked on the basis that the learned Commissioner had misconceived or misunderstood or misapplied the evidence and when one is dealing with an appeal on that basis - and this perhaps also picks up a point raised by your Honour Justice Hayne with respect to my learned friend a short time ago - when one is dealing with an appeal on that basis it is enough, in our respectful submission, to establish merit, in the sense of lack of futility on an interlocutory application of this kind, to arrive at or demonstrate a situation in which, if the grounds of appeal as expressed are made out by an examination of the evidence, then the appeal could succeed. 

That is enough, in our submission, for the purposes of that kind of application.  That is what is meant by or what ought to be meant by the appeal is arguable.  It is arguable in the sense that if we can demonstrate on an examination of the evidence that the Commissioner got it wrong in these various respects, then we would succeed.  For that exercise, it does not require the Full Court to go to the evidence and, in fact, conduct a full scale merits review on an interlocutory application.

Your Honours, it follows, of course, from what I have been saying that part of my learned friend’s submissions are, with respect, misconceived in that it is not our complaint that the Full Court did not ask for, or did not go to, the evidence and the transcript and the exhibits before the Commissioner.  The appellant’s complaint rather is that the Full Court in fact proceeded or purported to proceed to conduct a full merits review in the absence of that material and that, of course, is not to say the same thing at all.  We do not complain that they did not go to the material or that they should have asked for it.  We say, in the absence of it, they could not, with respect, have properly conducted a merit review on the basis of those grounds of appeal.

My learned friend also said that if the transcript had been before the Full Court, it may well have reinforced the conclusion the court actually

came to.  Our submission in relation to that is, quite simply, that one cannot say that without looking at the transcript.  So, too, when my learned friend says, well that was the evidence that was before the trial judge, the Commissioner who came to the very strong conclusions he expressed in his judgment.  That argument, in our respectful submission, is entirely circular since, of course, it was against that very judgment and the findings in it that the appeal was brought.  The very findings upon which my learned friend says the Full Court was entitled to rely, to conclude there was no merit, were the very findings which were challenged in the grounds of appeal.

If one looks at the reasons against the grounds of appeal, it is, in our submission, quite apparent that the grounds themselves, to be properly determined, necessitate an examination of the evidence.  For example, at page 327, this again is directed to a specific point raised by my learned friend when he referred your Honours to the judgment of the Commissioner as to parts of the medical evidence.  At page 327, about line 22, your Honours will see that one of the particulars to ground six, which itself challenges a number of findings and conclusions of the Commissioner, paragraph (b) at page 327 says:

The learned Commissioner misconceived the evidence when he said that the opinion of Mr Wong and Dr Duncan was that the severity.....was inconsistent with a motor vehicle accident as pleaded.

And then further particulars are given of that.  It is apparent from the very grounds of appeal themselves that those matters could not be determined, in our submission, without an examination of the evidence.  That is where the appellant’s complaint lies in this appeal, not that the Full Court did not ask for that material, but that it purported to conduct, in effect, a full assessment of the merits without having, not only the evidence and the exhibits which were before the Commissioner to enable them to do so but, indeed, without having the benefit of considered argument and submissions on the merits from counsel, but instead dealt with this matter by a side wind, as it were, on an interlocutory application which was never intended, nor contemplated as being for that purpose.  If your Honours please.

BRENNAN CJ:   Thank you, Mr Roberts-Smith.  This Court will consider its decision in this matter.

AT 11.04 AM THE MATTER WAS ADJOURNED