Jackamarra v Krakouer - [1997] HCATrans 294

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 WEDNESDAY, 22 OCTOBER 1997, AT 2.53 PM

MR L.W. ROBERTS-SMITH, QC: If your Honours please, I appear with my learned friend, MS E.J. VARDON, for the appellant in this matter. (instructed by the Acting Director of Legal Aid, Legal Aid Western Australia)

MR P.V. BATROS: May it please your Honours, I appear for the second respondent. (instructed by Brian C. Sierakowski)

BRENNAN CJ: Yes.

MR BATROS: While I have the Court’s attention, may I ask your indulgence to receive a supplementary memorandum, being the second respondent’s response to paragraph 3 of the applicant’s outline of argument. In paragraph 3 of the applicant’s outline of argument, my learned friend dealt with the reasons why the Full Court fell into error in dealing with the grounds of appeal before it at the time. It was not included by way of a direct response in my outline of submissions, because the two documents were being prepared at or about the same time. I have given a copy to my learned friend, and he is kind enough to say - I have seven copies, if I could hand them to the Court. I thank the Court, and my learned friend, for your indulgence.

BRENNAN CJ: I must say that the Deputy Registrar has informed me that the first respondent has not entered an appearance in this Court, nor does it appear that it was represented for hearing of the appeal before the Full Court of the Supreme Court of Western Australia. Yes, Mr Roberts-Smith.

MR ROBERTS-SMITH: Your Honours, in late 1987, Stella Jackamarra put her daughter, Ronita, then not quite three years old, into the front seat of Billy Krakouer’s car and watched him drive away to visit his relatives in Mount Barker in the south of the State. The next time Stella saw her daughter was one week later, on 1 September 1987, and the child was then in Intensive Care in Princess Margaret Hospital here in Perth, having, in the meantime, suffered a severe head injury, resulting in serious and permanent brain damage.

According to Ms Jackamarra’s testimony at trial, a couple of weeks before she had handed her young daughter over to Mr Krakouer, he, Krakouer, had complained to Stella Jackamarra that the brakes on his car were playing up. They were jamming. That is at page 5, lines 35 to 40 of the appeal book. Ms Jackamarra had, in fact, been driven to the hospital that morning, 1 September 1987, by Krakouer. It was her sworn testimony, at page 6, lines 35 to 42, that on the way in he told her that it was a car accident the night before; that he was coming down a street to an intersection and he kept trying the brakes, pumping the brakes, and they would not work and then, all of a sudden, the brakes came to a stop and Ronita came forward, hit her head on the dashboard of the car and fell on some bottles on the floor.

Ms Jackamarra testified that, after they got to hospital where Ronita was in Intensive Care, she again asked Krakouer what happened, and he kept telling her the same thing, page 7, lines 1 to 20. Significantly, in cross‑examination at trial, not only did Stella Jackamarra reiterate this evidence, she said, at page 22, that Krakouer had told her that when he put the brakes on, Ronita flew up, hit her head, and he picked her off the floor and her eyes started going white and rolling. Stella Jackamarra expressly denied - page 22, line 30, page 48 and page 23, lines 1 to 5 - that he told her Ronita was initially conscious for some time, and later became unconscious. That evidence and that fact, were it a fact, became of critical importance to the whole range of medical evidence and conclusions at trial.

The narrative of the subsequent litigation is, I trust, sufficiently set out in our written submissions, and I do not propose to reiterate that. The basis of the claim brought by Ronita, through Stella Jackamarra as her next friend, is summarised at paragraph 1.2 of our written submissions and, in passing, apropos of that, your Honours will note that it was always part of the plaintiff’s case that Ronita was unconscious immediately after the accident. Otherwise, it is sufficient to say that the action was heard before a Commissioner in the District Court, who concluded that he could not accept that Ronita suffered her head injury as the result of a motor vehicle accident but, rather, that it was possible and, indeed, he said he thought more likely, that it was the result of child abuse.

The appellant appealed against that judgment within time. No leave was required, and no extension of time was required. What followed then is set out at paragraphs 1.10 to 1.13 of our written submissions, culminating in the decision of the Full Court of the Supreme Court of Western Australia to dismiss the applicant’s application for extension of time, to enter the appeal for hearing, and granting the respondent’s application to dismiss the appeal for want of prosecution. The judgment of the Full Court, from which we now appeal, was given by Chief Justice Malcolm, with whom their Honours, Justices Rowland and Franklyn, agreed. That appears at pages 413 to 431 of volume 2.

The relevant test for the disposition of the two applications before the Full Court was stated by Chief Justice Malcolm at page 427, line 40, in volume 2, relying on the case of Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, and I quote from his Honour the Chief Justice’s judgment at page 427:

In such a case as the present, there are usually four main factors to be considered in exercising the Court’s discretion to extend time, namely, the length of the delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice suffered by the respondent:

In our submission, what is noticeable about this formulation is that it descends immediately to particular factors or considerations without any reference to essential principle. There is, in particular and specifically, we submit, no acknowledgment that the discretion to extend time exists so as to enable justice to be done when strict compliance with procedural time rules would otherwise work in justice and that, in our respectful submission, is, indeed, the guiding principle and it was, indeed, further, we submit, a failure to have that guiding principle in mind which led the Full Court into error.

It is not without significance, in the disposition of the matter before it, and in the disposition of this appeal, that the Full Court accepted, in relation to the other factors - we would submit that they operated, if at all, in favour of granting the extension of time. For example, at page 428, lines 19 to 25, the Chief Justice observed that the delay was entirely the fault of the plaintiff’s solicitors and the plaintiff was blameless, and it seems his Honour accepted that she should not be settled with responsibility for it under those circumstances.

Secondly, his Honour concluded there was no prejudice to the second respondent, other than its interest in maintaining the judgment, and that appears at page 429, line 10. And thirdly, at 429, lines 15 to 18, his Honour expressly concluded that nothing had occurred since the original institution of the appeal which would have entitled the second respondent to assume that an appeal was not contemplated, or would not be prosecuted. So, those factors, to the extent that they were relevant, were, in our submission, plainly in the plaintiff’s favour.

HAYNE J: May I just take you back two propositions? You said there was a positive finding that the commission was not prejudiced. Where do you find that in the reasons?

MR ROBERTS-SMITH: At page 427, line 10, your Honour.

HAYNE J: I must confess, I had not read it in that sense. Let me not delay you.

MR ROBERTS-SMITH: We would submit that, if one goes back to the paragraph beginning at line 40 on 428, and then reads what appears at line 10 over the page in that context, it is clear that what his Honour is there saying is that there was no prejudice, other than the general prejudice of maintaining an interest in the judgment. My learned friend says he would concede that.

So, your Honour, it is our submission that, given those conclusions, then unless the appeal is patently futile, such that it could not possibly succeed, then, if the question were asked, which we submit it ought to have been, “What do the interests of justice require on the application to extend time or to strike out?” there could have been, given those conclusions, only one answer, and it was the answer, of course, opposite to that arrived at by the Full Court.

Of course, what actually happened was that, in our submission, the Full Court failed to have regard to what we submit is the principle and, instead, beyond that, put aside those individual considerations below the level of principle, put aside those which militated in favour of the granting of extension of time and focused on only one of them, namely, whether or not the appeal had merit, and I cast it, for the moment, in simply that broad way. That is apparent from what his Honour the Chief Justice said at page 429, lines 15 to 20, where his Honour said, and I quote:

The critical issue, however, relates to the merits of the appeal. In my opinion the appeal lacks any real prospect of success. This is a case where the apparent lack of merit in the appeal is in the end decisive.

GUMMOW J: What is wrong with that as a statement of principle?

MR ROBERTS-SMITH: As a statement of principle, your Honour, it is wrong because it does not start from the question of principle, which is to ask the question, “What do the interests of justice require in this case?” on this application. It does not start from that question at all, and has no regard to it, in our respectful submission. It assumes that the determination - the assessment of merit, if it can be done, is decisive, and what we would seek to persuade your Honours of in the course of this appeal is that, although in some circumstances merit and, indeed, no merit may be a determinant of such an application, that would only be in very rare cases.

If I can perhaps foreshadow our submission, it would essentially be that merit would be of relevance, on such an application, sufficient to justify dismissal of the action, or refusal of the extension of time, only in two circumstances; one, where, if all other factors, or most of them, are in favour of the granting of the extension, then if the case is one patently which could not succeed, for some clear or obvious legal rule - such as Gallo v Dawson, which I think my learned friend will rely upon in due course, where the purpose of the proceedings was to enable the plaintiff to seek to appeal against an order in different proceedings, so clearly, on any legal view, she could not succeed - apart from that case, where, we would concede, the issue of merit can be determinative, we would say it would otherwise be determinative only in a very extreme case otherwise, where there had been delay, for example, of many years and where all or most of the other factors to which one would have regard militated very strongly against the applicant for the extension of time.

KIRBY J: I wonder if that is quite correct. I realise, in this case, there is the problem that the Full Court did not have all the transcript and so on, but it is not at all unknown to decline a procedural order if it leads nowhere; if to provide it is to provide a step in the direction of a futility. That is quite commonly then declined. I realise in this case one of your complaints is that they did not have all of the evidence in which to make the assessments but, as a statement of principle, if, in fact, it is futile to grant the extension of time, and that can be clearly demonstrated on the material properly available, then I see nothing unusual in refusing it.

MR ROBERTS-SMITH: Yes. I do not know that we would cavil with that proposition, if your Honour pleases, but what it does require, in our submission, is a situation where the futility of proceeding is patently obvious and cannot be gainsaid. Unless that is the position, then we say the role of merit in a consideration of an application for a procedural extension of time, or an application to strike out, plays a considerably different role.

KIRBY J: Where, for example, we have a special leave application and a party is out of time, it is not at all uncommon to just stand to one side the question of time and deal with the merits, and then you only have to deal with the time problem if, in fact, you were inclined, on the merits, to provide the special leave. It does not always happen that way but, in leave or special leave applications, that is not an unusual course to stop.

MR ROBERTS-SMITH: No. Might I respond to that, your Honour, by suggesting that perhaps different considerations may apply to applications for special leave, particularly to this Court. There are clearly other factors which must be taken into account in such matters, and it may be that relative merit, depending on the volume of business before the Court, becomes a significant consideration. But, in any event, even then, we would submit, the question becomes, “Is the matter arguable, rather than all other factors being equal?” which is where we submit we come from here, rather than, “Is it likely to succeed, or is there a reasonable prospect of success on the merits?” which involve a weighing up of the evidence and a consideration of it.

We come back to the central proposition which we seek to urge upon your Honours in this appeal and it is this; that whatever particular factors may be regarded as relevant to the exercise of the discretion either to extend time or to dismiss for want of prosecution, the guiding principle must be, “What do the interests of justice require?” and that is the principle which, of course, this Court has, itself, articulated in Queensland v J.L. Holdings Pty Ltd (1997) 71 ALJR 294, at 296 and 297, albeit there, of course, in relation to procedural application to amend.

KIRBY J: Would you just explain to me, just very briefly, the procedure in this State, which seems to be slightly different to other States? Apparently it is not enough to file your appeal within time, but you have got to make some procedural application after that to set it down. Is that - - -

MR ROBERTS-SMITH: Well, it is necessary to take out an appointment to settle an index to the appeal book and then to, once that has been done, to prepare the appeal books, and one files the appeal books with a notice of entry for trial, and the appeal books, as I understand it, are then checked within the court and the court confirms whether or not the matter is right or ready to be set down and, if so, it is then entered for hearing. There are procedural time limits which relate to those steps.

KIRBY J: But their substantive appeal was within time. The point that it required leave was ultimately determined against the respondent. It was an appeal as of right. It was within time and the slip up occurred - - -

MR ROBERTS-SMITH: It was an appeal as of right, it was within time, there were some vicissitudes, which are set out in our written submissions which, we would submit, do not make any difference to the position by the time it came to the application for extension of time. What happened was, relevantly here, the appeal books had to be filed and the matter entered for hearing by a certain date. Effectively that was five months out of time - out of that procedural time. The time having passed, it was necessary to get an extension of time within which to take that step. In the meantime, of course, as appears from the materials, the respondent had taken out an application to have the matter struck out for want of prosecution.

KIRBY J: I ask that because, at least in my mind, I would think there might be a distinction between getting your appeal in within time, which is traditionally a matter of significance inter parties, and complying with procedural rules of the Court for the efficient dispatch of business, which, one would think, would be a matter upon which there would be greater flexibility than in the first matter.

MR ROBERTS-SMITH: Yes. Well, as your Honours will have perceived from our written submissions, we do draw a distinction between what we refer to as substantive time limits and merely procedural time limits. Our submission again, briefly put, running ahead in relation to that, is that even where the time limit is substantive, as it is, for example - or as it is a substantive requirement for special leave to appeal to this Court, all that is necessary to show on substantive time limits, on the authorities, we would say, is an arguable case, to the extent that merit is relevant at all.

BRENNAN CJ: Perhaps you might be able to provide us with a set of the copies of the rules of the Court of Appeal, the Full Court, which indicate what rules enlivened the need to seek the extension of time.

MR ROBERTS-SMITH: I understood that material was provided to your Honours.

BRENNAN CJ: Is that the ones at the back of the material; Order 3 rule 5, Order 63 rule 7? Is that right?

MR ROBERTS-SMITH: Yes, your Honour. Item 7 on the list of appellant’s materials. It should be the last document.

BRENNAN CJ: Could you provide us, also, with the provisions relating to the filing of the notice of appeal, or the institution of the appeal?

MR ROBERTS-SMITH: Yes, of course. I will arrange for that to be done, your Honour.

HAYNE J: Does it follow that the application for dismissal for want of prosecution was an application under Order 63 rule 7(5), for want of compliance, Order 63 rule 7(1)?

MR ROBERTS-SMITH: Yes, that is correct, your Honour.

GUMMOW J: There were cross‑motions, were there not?

MR ROBERTS-SMITH: Yes, there was a motion to strike out.

GUMMOW J: What was the source in the rules of the cross‑motion?

MR ROBERTS-SMITH: It was the same order.

HAYNE J: Rule 7(1) for the application for extension of time?

MR ROBERTS-SMITH: Yes.

BRENNAN CJ: Would it not be Order 3 rule 5?

MR ROBERTS-SMITH: Yes, Order 3 rule 5, which is - - -

BRENNAN CJ: Yes, or Order 63 rule 7(1).

MR ROBERTS-SMITH: Yes, that is correct.

GUMMOW J: Was the cross‑application ever dealt with? Was there ever any order?

MR ROBERTS-SMITH: The procedure followed in the Full Court was really to deal with both together, and the court really - or the conclusion and subsequent order made by the Court was that the application for extension of time would be refused and, consequently, the respondent’s application to dismiss would succeed. But in terms of hearing, they were actually both dealt with together, and what happened was that counsel for the respondent stood, first, to address argument to the court on the application to dismiss, and the court indicated really then the view which is reflected in the quotation to which I have just drawn your Honours’ attention at page 429, from the Chief Justice, as to the critical issue and the relevant factors.

The court indicated quite clearly from the outset that it had formed the preliminary view that the Esther considerations, if I can call them that, were the relevant ones and that, so far as the court was concerned, what had to be shown was that there was merit, otherwise the appellant’s application would fail and the respondent’s application to dismiss would succeed.

GUMMOW J: “Possession” appears in the very last sentence of the judgment, but the only order that was taken out was one dismissing the appeal.

HAYNE J: There is a second order?

GUMMOW J: Is there?

HAYNE J: Page 435, in the second book.

GUMMOW J: Yes, I see, thank you.

MR ROBERTS-SMITH: Your Honours, the approach taken by the Full Court here was strikingly reminiscent, in our submission, of that argued for by the respondent in the case of Evans v Bartlam (1939) AC 473, but rejected by Lord Russell in that case who said about it - and I do not need to take your Honours to that case - said about it, at 482, point 1, and I quote:

This contention -

namely, that merit was the determining consideration virtually as a condition precedent to continuing -

This contention no doubt contains this element of truth, that from the nature of the case no judge could, in exercising the discretion conferred on him by the rule, fail to consider both (a) whether any useful purpose could be served by setting aside the judgment, and obviously no useful purpose would be served if there were no possible defence to the action, and (b) how it came about that the applicant found himself bound by a judgment regularly obtained, to which he could have set up some serious defence. But to say that these two matters must necessarily enter into the judge’s consideration is quite a different thing from asserting that their poof is a condition precedent to the existence or exercise of the discretionary power to set aside a judgment signed in default of appearance.

That, of course, was a different application all together. But what we do submit is that the approach of the Full Court here appears to have descended immediately to the area of particular factors or considerations, without reference and without cognisance, we would submit, to the general principle which should be applied and then, indeed, to have regarded the establishment of one of those - namely, merit in the appeal - as being effectively a condition precedent to the exercise of the discretion.

GUMMOW J: I wonder, really, whether the primary question was not whether there should be an extension of time.

MR ROBERTS-SMITH: Logically, one would perhaps have thought that would be dealt with first.

GUMMOW J: Which was sought until 5 August.

MR ROBERTS-SMITH: Yes. That application was made only a matter of weeks before the hearing of the notice of motion.

GUMMOW J: Which was on 22 July.

MR ROBERTS-SMITH: 22 July.

GUMMOW J: The judgment was delivered on 7 August, so after the date on which you are saying you could get yourself in order.

MR ROBERTS-SMITH: If your Honours look at the chronology filed by the appellant, the application for extension of time was filed on 15 July.

GUMMOW J: Yes, but it sought an extension, did it not, until 5 August?

MR ROBERTS-SMITH: I see what your Honour is asking.

GUMMOW J: Then it was heard on 22 July, and judgment was delivered on 7 August.

MR ROBERTS-SMITH: Yes. Well, that is not something which seemed to occasion any concern at the time, I must say, to - - -

GUMMOW J: It would have concerned me.

MR ROBERTS-SMITH: Yes. The matter proceeded on the basis that there were two live applications, and the court indicated quite clearly that, if the application to extend time had been granted, it would have been an extension which would have met the needs of the situation. There was no contest, nor difficulty about that. So, that was not an issue.

GUMMOW J: But what was the practical that was involved in your side getting itself in order to comply with what had to be complied with? At the time of the hearing on 22 July, what did you actually have to do to get yourself in the state of regularity.

MR ROBERTS-SMITH: File the appeal books and set the matter - and file the document.

GUMMOW J: Yes, I know you had them filed. But were they printed, or were they about to be printed, or were they just being assembled, or what was going on?

MR ROBERTS-SMITH: No. I understand that from the - - -

GUMMOW J: These are the sort of things one would ask.

MR ROBERTS-SMITH: From the affidavit of Monica O’Brien, who was dealing with that, it would appear that the situation was that the Aboriginal Legal Service, who was then the solicitor for the appellant, and is no longer the solicitor, for obvious reasons, had got to the stage of filing an application to set the matter down. Again, in the chronology, I think it is apparent - - -

GUMMOW J: I mean, were they to be bulky appeal books or - - -

MR ROBERTS-SMITH: Well, they would have been much the same as the appeal books before this Court, I would have thought.

GUMMOW J: Well, that is what I was wondering.

MR ROBERTS-SMITH: But at page 364, volume 2, there is the affidavit of Monica O’Brien, and one sees, at paragraph 10, where she deposes that:

The current status of the matter is that the documents to be included in the Appeal Book have been compiled, however the transcript has not yet been prepared in accordance with Order 63 rule 13 of the Rules of the Supreme Court. It is estimated that the Appeal Books will be prepared and ready to be entered for trial by Monday 5th August 1996.

Now, she had earlier indicated what the chronological course of events was, and what the difficulties were from the Aboriginal Legal Service’s point of view in getting the matter prepared. We would not suggest for one moment that any of those difficulties were any excuse, and it was never suggested otherwise. But the point about all of that, we would say, is that it can, for the purposes of this application, and was for the purposes of the application before the Full Court, put to one side because the court recognised - and, with respect, rightly so, in our submission - that none of that had anything to do with the appellant or her next friend; that it was nothing to do with them. There was no fault on their part and the appellant, or plaintiff, should not be sheeted with responsibility for the solicitor’s default.

KIRBY J: Is that correct? Is not the client fixed with the inefficiencies and delays of a solicitor leaving the client, with remedies against the solicitor if the solicitor is in default?

MR ROBERTS-SMITH: There is varying authority on the point. We were prepared to argue that on the appeal before the - or the application, rather, before the Full Court. We were expressly told that we did not need to do that.

KIRBY J: So, it has proceeded on the basis that your client is not fixed with the inefficiency of the solicitor?

MR ROBERTS-SMITH: That is correct. We were expressly told that that was the case.

KIRBY J: The Full Court had the full judgment of Commissioner Dawes, I understand.

MR ROBERTS-SMITH: Yes.

KIRBY J: Is a Commissioner a temporary judge of the District Court or like an associate judge, or something?

MR ROBERTS-SMITH: No, a Commissioner - he or she - is given effectively a short‑term commission to exercise the judicial powers of a judge of the district or Supreme Court, as the case may be.

KIRBY J: So, the Full Court would have had that statement on 319, where there is a finding - it is at the bottom of 318 - a finding, with regret, as he expresses it, that the injury was caused not by any hit of the dashboard. As a matter of practicality, looking at it as an appellate matter, that would be rather hard - very hard to overcome. I have no doubt that that was going through the mind of the Full Court when they approached the question. Whether they should have proceeded in that way is another matter, but it would be quite hard to overcome the conclusion as to the causation.

GUMMOW J: You had entered, in your written submissions, into the question of merits, had you not, at page 379?

MR ROBERTS-SMITH: I am sorry, let me just check that.

GUMMOW J: This is a document filed on 8 July.

MR ROBERTS-SMITH: Yes.

GUMMOW J: You seem to have been inviting the Court to take a view of the merits.

MR ROBERTS-SMITH: Well, your Honour, as one will appreciate that we were of course proceeding on the basis that previous authority of the Court, Esther Investments specifically, had identified that as one of the factors. Now, we do not say merit is not a factor. What we do say is the extent to which merit is to be taken into account on such an application ‑ ‑ ‑

HAYNE J: Or the test to be applied - or is it the test to be applied of merits?

MR ROBERTS-SMITH: No, it is not- I am sorry, your Honour?

HAYNE J: Is it the test to be applied or is it the extent to which it is to be taken into account; that is, its importance in some balancing consideration.

MR ROBERTS-SMITH: It is not the test to be applied. It is a factor to be taken into account in the balancing process. The test to be applied - the principle to be applied - is to ask the question, what do the interests of justice require in this case? That is what we propose.

HAYNE J: If it is apparent that the appeal has no hope of success, would you accept that the interests of justice would permit, indeed perhaps require, the termination of the appeal then and there?

MR ROBERTS-SMITH: If there were no question about that conclusion, yes. If there were no question about that. That is not this case, in our submission.

KIRBY J: And as I understand it, the Full Court did not have the full transcript of the hearing.

MR ROBERTS-SMITH: The Full Court did not have the transcript. It did not have the medical reports. It did not have the exhibits. And it had no recourse to them. My learned friend, I think, has conceded that. It is not our complaint that the Full Court in considering - in going to its assessment of the merits the way it chose to do so, did so properly but failed to have regard to the transcript.

Rather, we say, the Full Court applied the wrong test in principle, because it failed to have regard to the principle. And secondly, when descending to the particular factors it focused wholly on the question of merit and gave that far more weight than it should properly and could properly have been given in the circumstances of this case and that one of the difficulties with it purporting to deal with the case on its assessment of the merits was that it did not have the transcript and the exhibits and the other material before it. Not, of course, to mention the full benefit of submissions from counsel on the merits.

GUMMOW J: That is sort of circular, because it would have the appeal book. If it had all these materials, everyone would have been in order.

MR ROBERTS-SMITH: If it had had the appeal book?

GUMMOW J: Yes. If it had the transcript and the exhibits, it might as well have had the appeal book.

MR ROBERTS-SMITH: Well, exactly. If it had had all of those - that is one of the points we seek to make in due course. We say that if the respondent’s argument is righ and, indeed, the approach taken by the Full Court is right, then in a situation like this on an interlocutory application for an extension of time, being dealt with as an interlocutory application, if the Full Court were minded to give full and proper assessment and consideration to the merits of the appeal in a substantive way, then to do that would require that it had the transcript and the exhibits and full benefit of detailed submissions from counsel, none of which it had.

And, of course, if that were to be the approach, if that were the rule and the approach to be adopted, then as your Honour Justice Gummow says, it might as well have the whole appeal book before it and, in effect, it would be determining the substantive appeal substantively and on an interlocutory application. It would be ludicrous. It is not what the procedure is about.

HAYNE J: Was it appropriate or was it incumbent - the questions are separate - on the appellant to embark on a consideration of the merits of the appeal in support of her application for extension of time, as in fact she appears to have done at 379 of the transcript in the submissions?

MR ROBERTS-SMITH: Only to the extent that the Full Court had previously said merit on such an application is a factor to be taken into account and we dealt with it in that way, as your Honours can see, briefly, because it was our submission then and it is our submission now that to the extent it is a relevant consideration, the extent to which we dealt with it was sufficient on that kind of application.

BRENNAN CJ: In fact the Chief Justice said to you at page 385 line 15:

On the face of it there has been gross delay. The appeal is likely to be struck out unless it is saved by its merits.

On the following page 386 line 8 he tells your opponent that the onus is on you to establish a reason why you should be allowed in. And then at a later stage, I think he says, merit is sufficient to overcome the difficulties. That is at page 389 line 13.

So it seems that you were put, as it were, on a “show cause” basis in relation to these proceedings.

MR ROBERTS-SMITH: Well, we were on the hearing of the application, certainly. There was no question about that. Can I take your Honours back to page 389? What his Honour is there saying is, addressing me:

I think you should take it that, having regard to the length of the delay, the reasons for the delay and the apparent absence of any prejudice other than the uncertainty of the situation ‑

so he is putting aside those considerations -

the key issue here is whether there is merit in the appeal sufficient to overcome those difficulties, because if the only question was the length of the delay, reasons for the delay and a matter of prejudice and the appeal had merit, it is likely that an extension of time would be granted.

So, in our submission, what his Honour there is quite clearly saying, and it is reflected ultimately in the judgment, is that the other factors really do not weigh against of the grant of the extension of time. So his Honour is focussed entirely on the question of merit.

BRENNAN CJ: What you have been saying, as I understand it, is that provided the question of merit is sufficiently, to put it in a negative sense ‑ unless on the face of the judgment the case was a hopeless one, then there is no question but that an extension of time should have been granted or, at all events, if on the face of the judgment, the matter is fairly arguable. Is that right?

MR ROBERTS-SMITH: Yes.

BRENNAN CJ: And your proposition here is that on the face of the judgment there was nothing to show that it was not fairly arguable?

MR ROBERTS-SMITH: The face of the judgment and the grounds of appeal. Yes.

BRENNAN CJ: Yes. And is that your case?

MR ROBERTS-SMITH: Our case is that it was arguable and that all of the other factors militated in favour of the grant of the extension and that, accordingly, if one applied the question of principle and said what do the interests of justice require, then inevitably the extension of time would have to have been granted.

BRENNAN CJ: That is because having regard to the other factors, plus their arguability, you have made your case. So it all turns on whether or not, on the face of the judgment, the matter was fairly arguable.

MR ROBERTS-SMITH: Yes. But when I hesitate in answering that I do so because one cannot make that assessment without an appreciation of the interrelationship of the medical evidence in particular, with the other evidence in the case. And that interrelationship was critical to the conclusion both of the trial judge and the judgment of the Full Court.

BRENNAN CJ: Then perhaps it should be put in the negative and that is, provided the judgment on its face does not demonstrate that the case is not fairly arguable, you should succeed.

MR ROBERTS-SMITH: Yes.

BRENNAN CJ: That is not demonstrated because there is an absence of material on which you could come to that conclusion. Is that right?

MR ROBERTS-SMITH: That is so. It cannot be demonstrated without reference to that material.

BRENNAN CJ: Yes. Is that what you need to say?

MR ROBERTS-SMITH: Is your Honour saying, do I need to say any more?

BRENNAN CJ: I can see all the cases that you have recited in this fairly lengthy written submission, but they all seem to me to be saying - they are supporting you - they are all saying fair arguability is the test and on the facts of this case you say you could not conclude contrary to me in this case because you did not have the material.

MR ROBERTS-SMITH: With respect, I thought we had said it, obviously in a more prolix way. But, yes, that is what we do say.

BRENNAN CJ: Is there some peculiar fact that you need to point out, some specific authority that you need to draw our attention to?

MR ROBERTS-SMITH: None other than those to which we have referred in the written submissions. It is essentially establishing that proposition.

McHUGH J: What material is there in the transcript that you would have relied on, apart from the findings of fact and the statements of evidence in the Commissioner’s judgment?

MR ROBERTS-SMITH: To answer that, can I draw your Honours’ attention to - can I take your Honours to paragraph 3.1 of our written submission. One of the critical aspects of this case at both levels, trial level and Full Court level, was that the medical evidence itself turned very much on acceptance or otherwise of what Krakouer had told the medical practitioners and, in particular, whether or not there had been a lucid interval of the girl, Bronita, immediately after she had been injured.

The general conclusion of the doctors - and I can take your Honours in a moment, if you wish, to the particular parts of the evidence - but the general conclusion of the medical practitioners, who expressed the view that it was more likely child abuse than not, that is, that the head injury was the result of child abuse than not, turned on what one of them described as a constellation of symptoms or considerations which included multiple bruising of varying ages extending back over some seven days. And one factor, one very important factor, was the existence or otherwise of a lucid interval immediately after the girl, according to Krakouer and according to the plaintiff’s case had hit her head on the dashboard of the car.

As a general proposition the medical practitioners were not prepared to accept that the history given was consistent with the injuries they observed - the severity of the head injury and the nature of it and its progression of it. In particular, whilst there were other considerations, it was not consistent with her not being unconscious immediately afterwards. He said, on a couple of occasions he told the medical practitioners, for example, she hit her head, she was all right, we went shopping, she picked out a dress and then later on she became unconscious.

McHUGH J: That was one thing the doctors were unanimous on - that she could not have gone shopping.

MR ROBERTS-SMITH: Virtually, yes. That is right. But, of course, this is where it was important to bear in mind that it was always the plaintiff’s case that she had not been conscious after the accident. It was always the plaintiff’s case that she had, in fact, been unconscious. But one has to look to the extent to which the learned Commissioner relied upon the medical evidence, as we say here at paragraph 3.2.2, he concluded:

that when the majority view in the medical evidence was “contrasted with the varying accounts of the matter given by Krakouer”, he could not accept any of Krakouer’s accounts of the cause of the injuries.

So those two aspects were very closely interrelated. The medical conclusions were not of themselves objectively independent of Krakouer. They turned very much on the medical view that, in fact, what he had said was untrue when he had said there was a lucid interval.

McHUGH J: The point I am seeking your assistance on is that the Commissioner’s judgment set out the salient parts of the evidence fairly extensively. In conducting the proceedings before the Full Court, what was there in the evidence, which is in volume 1 of the book before us, that you could have relied on to persuade the court you did have an arguable case, as opposed to just the judgment, which you did rely on?

MR ROBERTS-SMITH: Yes. Can I perhaps give your Honours some indication of what we would have done with that? We would have referred, for example, to the ‑ ‑ ‑

BRENNAN CJ: How does that volume 1 come into this Court?

MR ROBERTS-SMITH: It comes into this Court, your Honour, because we needed to be able to answer the very question Justice McHugh was asked.

BRENNAN CJ: But how could you? The material was not before the court below.

MR ROBERTS-SMITH: No, it was not before the court below.

BRENNAN CJ: So, what you are doing is introducing fresh evidence between that court and here in order to ask that question.

MR ROBERTS-SMITH: Well, the question both which Justice McHugh asked and which your Honour asked earlier really cannot be answered without an appreciation of what is in that material because ‑ ‑ ‑

BRENNAN CJ: Well, it can. My question certainly could because I asked it “on the face of the judgment” which was the material before the court below.

MR ROBERTS-SMITH: Yes, I see your Honours point, with respect.

BRENNAN CJ: And Mickelberg’s case is quite clear. This Court is a court of appeal. But still, Justice McHugh has asked you a question so you should respond to it.

MR ROBERTS-SMITH: Well, the short answer to your Honour the Chief Justice’s question is, right or wrong, that was the reason, to enable us to answer that question.

McHUGH J: Do not go to the evidence. Just tell me from the Bar table what you submission is - what are the sort of things you want to say. Because what is exercising my mind are these two contradictory views in the case. On the one hand, the court has made a decision without looking at the material. Prima facie that seems to be the end of this case and the appeal should be allowed and the matter sent back - remitted.

The other view that concerns me is that you may have been content to conduct the case on the basis of the judgment. That is the claim, as I understand it, that is made against you in the court below. What I was trying to get at is what were the real merits? Did you really have a point underlying the judgments which you could have referred to the evidence if you had been given notice of that fact?

MR ROBERTS-SMITH: In our submission, yes. We would have very much wanted to do that.

McHUGH J: So if the Chief Justice in the Full Court had said, “What is wrong with these findings of the Commissioner in the judgment?”, would you have said, “Well, look I want to take you to the evidence.”?

MR ROBERTS-SMITH: We would have said, “We would have to take you to the transcript because it cannot be demonstrated otherwise.” And that is because of the interrelationship between what Krakouer was said to have said from time to time, his answers to interrogatories and the reliance upon those matters, whether believed or not, but the reliance upon them by the medical experts to express their own conclusions which in turn, of course, were relied upon by the learned Commissioner. Now, all of that was interrelated and could not be understood without actually going to it and examining the interrelationship.

GUMMOW J: Yes, but the problem to my mind is this, if one goes to 2.2.1 of your submissions here today, the written ones, which are a written representation of what you are then saying orally, that point was not made to the Full Court in your page 379. That is what I do not understand. Why were you not saying this to the Full Court?

MR ROBERTS-SMITH: Because, as I have sought to indicate earlier, at 379 ‑ ‑ ‑

GUMMOW J: But why does it now pop out here with all this evidence suddenly appearing? One will need to know which particular items in the appeal books in this Court should not be here. Because I do not want to read it.

MR ROBERTS-SMITH: Because at 379 we sought to address the issue in the context, as I have said, of Esther Investments, an earlier decision of the same Full Court ‑ ‑ ‑

KIRBY J: Yes. I took this at 379 to be the flavour of what you will be saying when eventually you get to an appeal with the appeal papers and all of the material before the Full Court.

MR ROBERTS-SMITH: Yes, and that, in our respectful submission, is all that one, certainly at that time, expected to have to say to the Full Court on that kind of application. To be then asked to canvas the merits in a substantive way on the basis that the assessment of the merits was determinative of the interlocutory application, was not what had been anticipated at all.

HAYNE J: But was that not what Chief Justice Malcolm was saying to you in that first two or three pages of the transcript? That the merits were for his Honour, rightly or wrongly, seen then as central to ‑ ‑ ‑

MR ROBERTS-SMITH: That is what his Honour was saying at that time, yes.

GUMMOW J: That was an alarm bell - a loud one.

MR ROBERTS-SMITH: It was an alarm bell but one is in a situation there where there is a list of matters, this is of course an interlocutory motion day, there were a number of matters before the court, it was beyond contemplation that the court would, for example, adjourn the matter, to stand it down to enable all the material to be filed. It was beyond contemplation that the court would spend, for example, even the afternoon, hearing argument. There were other cases in the list. The practical realities of the situation all militated against any exhaustive canvassing of the material even if it were to become available.

HAYNE J: Let me see if I can put the point that may be made against you as tendentiously as I may to draw the answer. The judgment of the Commissioner at first instance may be seen to have been largely informed by, perhaps entirely informed by, his Honour’s assessment of witnesses, notably expert medical witnesses. You were, by your appeal, going to have to challenge those findings. Could you identify from the reasons for judgment of the Commissioner alone, in effect, the one best point that you could say was the basis upon which you might arguably have challenged that finding?

MR ROBERTS-SMITH: If I can just go to the judgment, the learned Commissioner rejected the evidence of Stella Jackamarra as to the conversation which she testified she had had with Krakouer the very morning after the accident and included in which was the observation the child was unconscious immediately after the accident. That was a very important factor in the whole process of the case. The evidence of that conversation was not challenged in cross‑examination to Ms Jackamarra.

At page 306 the learned Commissioner recognises that the answers by Krakouer in interrogatories and the account to Stella Jackamarra were the foundation of the plaintiff’s case. He said their reliability is the major issue before me. The reliability of his evidence, or the assessment of that, turned in part upon the admission of statements said to have been made by him to
Mr Sarre. The admission of those statements was challenged. The Full Court did not find it necessary to say whether or not that ground of appeal would succeed. The Full Court expressed no opinion about that because it took the view, or Chief Justice Malcolm took the view, that in the end it would not make any difference because it would not overcome the medical evidence. So there has, in a very real sense, been no assessment of that ground, as such, in any event. The Full Court did not even purport to do so. It said it would not matter.

Now, we would submit first of all, in relation to that ground, the admission of the Sarre statements, that that is a very strongly arguable ground of appeal and that it would matter, but to see how it would matter one needs to go to the evidence.

McHUGH J: Having read a fair bit of the appeal book, particularly volume 2 and the submissions, I must say that I do get the impression that you were outlining the sort of case that you would make without coming to the detailed argument in support of that case and the strongest parts of that - the strongest evidence of that analysis - seems to be at 398 where about line 7 you say:

This is not a case which turns upon the recollections of eyewitnesses and witnesses of that kind. It turns almost entirely upon a proper view of the medical evidence, and of course the medical practitioners are supported ..... So I make that submission -

Then down on line 23 you say:

Much turned on the observations made by the medical practitioners at the time .....It is perhaps not necessary for me to detail that now but there was a diversity of specialist opinion -

and over on page 401 of line 33 you said:

one could perhaps go on, but it is my submission that with what has been said already there is an abundant basis upon which to see not only an arguable appeal here, but a substantial appeal -

So the general impression I get from reading this is that you were outlining to the court the sort of arguments that you would be putting but not the details.

MR ROBERTS-SMITH: Well, exactly, and that of course was the only option open to us at that time ‑ ‑ ‑

GUMMOW J: I do not know. You say the only option, but argument seems to have started at 10.43 am and finished at 1.05 pm. That is half a day.

MR ROBERTS-SMITH: No. There was a significant adjournment because what happened, if your Honours go to the very beginning of that transcript, perhaps highlights the difficulty. Their Honours pointed out right at the outset that, in fact, two of them, apparently did not even have the materials which had been filed for the notice of motion and the matter had to be stood down for some considerable time while the affidavits which had been filed were photocopied and made available to their Honours.

That adjournment, I think, is at page 387 - yes, at 388 I think your Honours will see the time at which the matter commenced again at 11.57, but up until that point, for example, at 386 at about line 30 Justice Franklyn says:

The point I was going to make is that if it does go to any of the contents of the reason for judgment I don’t have the reasons for judgment in the papers served on me.

So I mean there was some bureaucratic glitch apparently within the registry of the court which meant that their Honours did not, in fact, even have those materials when we actually started and the matter had to be stood down. They were then copied and we resumed again and made the submissions and, yes, in answer to your Honour Justice McHugh, obviously having been told by his Honour the Chief Justice, “Well, you have really got to address us on the merits”, that is obviously what we sought to do but without the benefit of the transcript or the exhibits or any of that material and, indeed, coming back to the point I was seeking to make a moment ago, I sought to make that very point to their Honours at 408 at the bottom of the page:

it is our submission that while the case turned clearly very largely on medical evidence, it was not by any means entirely or exclusively that, and indeed a very important way in which the medical evidence was viewed - or rather the medical practitioners came to their conclusions - turned to a considerable extent on what had in fact been said by Mr Krakouer, and the most significant area of his accounts had been the question whether or not there had been a lucid interval. It was the issue of whether or not there had been a lucid interval after the injuries that caused the medical practitioners, in our submission, to come to the conclusion in large part that this was a case of child abuse.

But to understand that, to see that, of course, one needs to go to the evidence. Can I go back to your Honour Justice Hayne’s query of me. I was dealing with the evidence of Stella Jackamarra. If I could bring your Honours back to page 316 in the judgment of the learned Commissioner. His Honour says about line 15:

It is surprising to find the first defendant eliminating the lucid interval in his explanation to Stella Jackamarra which was almost certainly given between the first defendant’s interviews with Drs Christensen and Duncan.

In other words, what his Honour is saying is it is surprising he did not tell Stella that the girl had been unconscious immediately after the impact, but her evidence was quite adamant throughout and it was never challenged that she was unconscious. He then goes ‑ ‑ ‑

McHUGH J: But the trial judge did not accept Ms Jackamarra’s evidence on that, did he?

MR ROBERTS‑SMITH: This is the very point that I am seeking to make. One of the grounds of appeal went to his non‑acceptance of that evidence. He says here at about line 19:

I am not inclined to accept the accuracy of Stella Jackamarra’s recall of this conversation, notwithstanding that her evidence was not challenged in this respect. She was not proofed by her solicitor until long after these events. I think it possible that she has unconsciously transposed a much later account by the first defendant back to 1 September 1984.

There was no evidence of that at all. That is complete speculation and, indeed, the evidence of Stella Jackamarra at page 9 at the top of the page ‑ ‑ ‑

GUMMOW J: Wait a minute. This is the problem, is it not? Is it not the position that pages 1 to 320 should not be here?

MR ROBERTS‑SMITH: All right. Well, taking that out of the equation, all we say is ‑ ‑ ‑

GUMMOW J: To put it precisely, pages 1 to 320 were not before the Full Court on this motion, were they?

MR ROBERTS‑SMITH: They were not. That is, of course, our complaint or part of it.

KIRBY J: Up to 320 were. The judgment was before the court. It was 1 to 292.

MR ROBERTS‑SMITH: Yes. The transcript of evidence and the exhibits were not before the Full Court, that is the description.

KIRBY J: And the judgment was eventually before the court, but even it was not before the court in the morning when it started its business.

MR ROBERTS‑SMITH: Correct.

GUMMOW J: 1 to 291.

MR ROBERTS‑SMITH: Can I say this then to your Honours, that when there is a ground of appeal which is directed to evidence which is clearly of very important weight to the conclusions expressed by the medical practitioners which in turn are relied upon by the learned Commissioner, when there is a ground of appeal expressly directed to that finding, it cannot be, in our respectful submission, assessed on its merits without recourse to what the evidence in fact was. That point becomes even more important when one sees then how the learned Commissioner treats that. At the bottom of page 316 he the turns to the first defendant’s answers to interrogatories. Now, at page 317 he says about line 8:

The version given in the interrogatories and to Stella Jackamarra has the plaintiff unconscious immediately after the accident.

Now, he has just put aside what was said to Stella Jackamarra on her evidence, and we say wrongly, and then he deals with the interrogatories and at line 39 says:

It is difficult to escape the inference that the first defendant may have deleted the allegation of the lucid interval on becoming aware of the above medical opinion.

Which, of course, are medical opinions expressed after the conversation with Stella Jackamarra on 1 September. Now, if he was wrong in his finding about the conversation with Stella Jackamarra, if he should have found, as we would say - should have accepted her evidence that the conversation did occur and that Krakouer then said the child was unconscious - this is the very day after the accident - then his conclusion as to the interrogatories cannot stand either because it is not the first time, it would not have been the first time that the defendant had said that. So one can see if one looks at the interrelationship of all of this evidence the picture changes, but one does need to look at that to make that assessment. So what we submit, with respect, is that unless the Full Court had gone to the evidence and considered it and analysed the grounds of appeal in that kind of way, going to all of that material, it could not possibly have made a proper assessment that there was no merit in those grounds, could not possibly.

BRENNAN CJ: I take it that the jurisdiction of the Full Court of the Supreme Court of Western Australia on an appeal of this kind is to treat it as an appeal by way of rehearing on the materials before the trial judge? It is a full appeal?

MR ROBERTS‑SMITH: Yes, it is.

McHUGH J: You may be lucky that the court did not detail its reasons for saying that you have got no prospects of success on the appeal because I would suspect that what was decisive against you was probably the history that was related to Dr Christensen by the defendant and he said there explicitly, and of course it was recorded, that the child was conscious and they went and shopped and ‑ ‑ ‑

MR ROBERTS‑SMITH: Yes. Well, that is right but ‑ ‑ ‑

McHUGH J: I mean, it is a very difficult matter for you to get over, but your point is that you have been denied the opportunity to get over it.

MR ROBERTS‑SMITH: Well, our case always was that when he said that it was not true. Our case always was that when he made admissions, as he did on a number of occasions and to people other than Stella Jackamarra, he did say to some of the doctors, for example, that there was a car accident and she hit her head on the dashboard. He did say that much. Now, we would have sought to argue that is an admission and that is the admission we wish to rely upon. The other admission we wish to rely upon is the one he made to Stella Jackamarra and in the answers to interrogatories that having hit her head on the dashboard in a car driven by him in the circumstances he had described or was simply driven by him, she was then immediately unconscious. That was always the way we presented our case.

McHUGH J: I know, but the real difficulty you have got is that you have got to rely on his admissions or part of what he said to get your case up and you want to reject other parts of what he has told people, particularly what he told Dr Christensen.

MR ROBERTS‑SMITH: Yes.

McHUGH J: If a court took the view that his evidence was just rejected or his statements were just rejected, that is the end of your case and then you have got to couple with that the fact that the medical evidence seems to indicate it is pretty close to impossible for the injuries to have been caused by hitting the dashboard. I know he left it open. He left it ‑ ‑ ‑

MR ROBERTS‑SMITH: No, our submission as to that was that if one accepted there was not a lucid interval and then looked at the medical evidence in light of that, then what you have is, in a sense, equivocal medical evidence, it is indirect, certainly the medical practitioners gave direct evidence of their own observations, but there was no direct evidence of how that injury had been suffered. It was always a matter of inference. It had to be. It could only be.

McHUGH J: I know, but you have got all these lines on her head; you have got bruising around the ear; bruising here; bruising there and it is ‑ ‑ ‑

HAYNE J: You have got three doctors who say that the injury was just not consistent with the braking injury and the Commissioner accepts them in preference to others. How is an appellate court to get around that?

MR ROBERTS‑SMITH: Your Honour, you have three doctors who say it is not consistent with that on the history given to them, which included the lucid interval.

KIRBY J: I am beginning to feel I am hearing a merits appeal in this matter instead of a complaint about the procedures of the Full Court.

MR ROBERTS‑SMITH: Yes. Well, I am responding, of course ‑ ‑ ‑

McHUGH J: Yes. No, I started it.

BRENNAN CJ: I do not think it is a case for breast beating.

MR ROBERTS‑SMITH: Mea culpa. Well, yes, can I perhaps just conclude it then by saying this. The sort of discussion that we have been having with respect to your Honours, the sorts of points that we have been seeking to put before you in response to the issues raised, if nothing else, demonstrate why it was that procedurally the Full Court could not properly have come to the conclusion that it did without looking at that material and it was inappropriate for it to look at that material on those kinds of applications. To do it would have involved having effectively a full appeal.

It would have been a pointless exercise to then, if they had done that, go on and have the full appeal on the same materials discussing the same merits of the same grounds. Procedurally they ought not to have done it that way and, in our submission, where they erred was, as I have indicated, in not applying the correct principle, which was to ask what the interests of justice required. When Chief Justice Griffith in Rowe v Australian United Steam Navigation Company Limited (1909) 9 CLR 1 at page 6 said, and I quote:

the right of every man to a fair hearing before he is condemned lies at the root of the tree of justice -

which was referred to by your Honour Justice Kirby in Queensland v J.L. Holdings at page 301, his Honour the Chief Justice there, in our respectful submission, was speaking of a fair hearing on the merits and that is precisely what this infant plaintiff has been denied on the hearing of these interlocutory applications, although that is purportedly what the Full Court sought to do but could not have in the absence of that material. If your Honours please, we ask that the appeal be allowed and we seek orders in terms of paragraph 5 of our written submissions.

BRENNAN CJ: Thank you. Yes, Mr Batros. The Court proposes to sit until 4.30 this afternoon.

MR BATROS: Thank you, your Honours. I would have to say, your Honours, from the outset that I have been in not mournful contemplation, but contemplation nonetheless, at the question of how the transcript gets before you and in all fairness to both sides, I would probably have to say that each of us agreed in the settling of the appeal book index and therefore both sides have some responsibility for that, not in any way taking away your Honour the Chief Justice’s point.

It is obvious, with respect, that the transcript and the exhibits should have been put before the Full Court. My learned friend takes the view that it was not appropriate, depending on how much time and how it might blow out the hearing time. That varies. He and I take a totally different view on the impact of an examination of the transcript by any court.

Indeed, his view on the lucid interval would, were I to take you, as your Honour Mr Justice Kirby was mentioning, if we were to turn this into a hearing on the merits, if I were to take you through all those references that I have had typed up and just handed up today, for what it is worth they would demonstrate that this lucid interval factor that my learned friend considers and submits is so important, as an interweaving with what Krakouer said and what Krakouer did not say, the lucid interval, if one does, in fact, go to that transcript is almost irrelevant. The reason is so simple as this that those three fundamental medical experts, Gurry, Wong and Duncan, were all of the view firstly, that they did not believe the lucid interval, so it therefore did not play a role in their diagnosis at all. Its only relevance to them was to regard the father, at best, as an unreliable historian, if not something less complementary.

KIRBY J: But Mr Batros, I intervened to say what I said because I was suddenly beginning to feel I was back on the Court of Appeal. That is the very point. This matter is properly to be considered in a Full Court not before this Court and that is the complaint, as I understand it, that the appellant brings, that it just has not been properly considered. You can make your arguments there and you may well win, but that is the proper place for them.

MR BATROS: I take your Honour’s point entirely and, a little long‑windedly, I was really agreeing with your comment. But the fundamental matter and, if I could simply refer to it in my outline of submissions of 15 October where I sought to summarise the problem here, and not to state it too strongly, recognising the nature of the second respondent whom I represent, and not to over‑urge the matter, but it is set out there in item 5 dealing with fifth and sixth grounds of appeal because in the notice of appeal a criticism is made of the Full Court itself. So the attack is launched, if it is not too strong a term, on the Full Court for drawing certain conclusions -

without considering the evidence itself but relying only and entirely on the reasons given by the learned Commissioner.

I am quoting from 2.5 of the notice of appeal. In 2.6:

erred in concluding there was no real likelihood of the Appellant’s challenges to the findings in relation to the medical evidence being made out, without having before it the testimony and reports of the various medical experts.

Accepting as I do that it is a pity that that material was not put before the Full Court, because we would not be here now if it were, the way it is expressed on behalf of the second respondent as being carefully and cautiously couched, firstly, if your Honours were to look at page 11 of the second respondent’s submissions of 15 October, you will see that the second respondent starts by conceding matters of fact and as many matters of fact as it could to try and reduce the ambit of any dispute and to try and focus on where is the error made. With great respect to my learned friend, I would put very simply and succinctly that it was an error that the Full Court did not have before it this material. By this material I mean the transcript and the exhibits. The question really is whose error was it? Was it an error of the Full Court’s?

Now the second respondent draws a little short of, as it were, trying to tell this Court what to do. When it comes down to this Court pronouncing regulatory and directional judgments, the second respondent would rather simply abide by the decision of the Court. But the way it is put ‑ ‑ ‑

BRENNAN CJ: It is not a question of the error being the absence of the material before the Full Court, the material was not there before the Full Court and the question then is, in the light of that situation, what ought the Full Court to have done?

MR BATROS: The question might be put a little differently or, your Honours, the question might be answered in this way. Was it for the Full Court to direct learned senior counsel as to how to present his case, because courts generally refrain from doing that because it is a step towards stepping into the ring, as it were? Where does the onus of proof lie, where does the burden lie and, in my respectful submission, in this case the burden is on the applicant seeking the order for leave to extend time to approach the court with the relevant material and all the relevant material. It should not, with respect, be up to the Full Court to ask for the material but rather to rely on counsel to present it.

BRENNAN CJ: What was the onus on counsel to do in terms of showing something, showing what?

MR BATROS: Showing simply an arguable case.

BRENNAN CJ: And on the material that was there, was or was not an arguable case shown?

MR BATROS: Given that the material that was put before the court was fundamentally the judgment of the learned Commissioner Dawes in which he quoted very liberally from the evidence and which he made the points very clearly in his judgment -and I can take you to them tomorrow morning precisely if that is necessary - he made the points very clearly that he accepted the majority view that Mr Stokes, who had come very recently only into the case some seven years afterwards and had never seen the child, and who only expressed equivocal views, his view was not “It was a motor vehicle accident that did it.” His view was not “It was not child abuse that caused the head injury”. He agreed there was child abuse evidence in the bruising. What he said was, and his only difference from the other medical experts was “It could have been a motor vehicle accident or it could have been child abuse by shaking and one blow to the head which would explain the exterior bruise”.

What was put before the Full Court with, at least, the tacit consent of my learned friend, was simply a recording of the relevant evidence which was overwhelmingly that this was a case of child abuse and not only that, within the body of the judgment, Justice Kirby, if I may go back to that other reference before, the learned judge dealt with the question of the lucid interval which had been rejected by those three witnesses and, indeed, was rejected by Mr Stokes to the extent that there was the “going shopping” factor added into it.

Now that was not a key issue at all in the determination of the evidence of those witnesses and it is also set out in the judgment what they did rely on, and they relied on the fact that this sort of head injury is unlikely to occur with a single impact but rather by repetitive shaking. They relied on the fact that it was retinal haemorrhaging, which is consistent with shaking and not with motor vehicle accidents, although Mr Stokes dissented on that point, but the majority view that was accepted by the learned Commissioner as against the equivocal view of Mr Stokes. It is all there in the judgment. Given that there was so much of the evidence and the relevant medical evidence quoted ‑ ‑ ‑

KIRBY J: But normally it is a strange thing about our system that normally parties are allowed to come along to court and challenge judgments. It happens all the time. It happens every day. They come along, they challenge it, they go through the evidence, they try to convince courts. Occasionally they do in appeals which are full appeals. That is what this plaintiff has been denied.

MR BATROS: I wonder does it go, with respect, your Honour, quite that far? The point I was making was not that judges should not be challenged, and maybe one day I will summons up enough courage to do it myself, but the point I am suggesting here, that there is so much detail of the relevant medical evidence which is overwhelmingly of child abuse and which is not related to the lucid interval factor that my learned friend suggests at all on the face of that judgment. To any senior practitioner surely that would have been a red flag signal to then bring in the evidence and to put the argument against what the Commissioner had accepted.

It is not a question, with respect, of denying the opportunity to challenge the Commissioner. There, in the judgment, were all the signals inviting the person coming along, knowing the Esther Investments v Markalinga principles, to come along and show this Full Court why the judge had got it wrong and that is the invitation then for him to introduce the transcript before the court. Now, if that is wrong, then the matter must go back and be dealt with appropriately.

McHUGH J: But, reading the submissions of Mr Roberts-Smith, the view that I have got at the moment, that is the one I expressed earlier this afternoon, is that he was just putting it in a general way, like in a directions hearing. The judge says, “Well what is your case?” and you say “Well, so and so and so and so and so and so” but you do not go and put the detailed elaborate argument in support of it. That is what seemed to be missing from the argument of Mr Roberts-Smith, that he was just outlining the case that he would be making and saying “There is a case to be argued here so I should have my extension of time.”

KIRBY J: Your argument, as I understand it, is that, forensically, given the strength of the argument, there was a forensic obligation on him to present the material.

MR BATROS: I do say that, but I would like to say something in his favour first, and before I respectfully respond and disagree, with great respect, to Mr Justice McHugh. Let me say something for my learned friend in this regard and that is that, at about page 410 of the transcript, it should be the transcript before the Full Court, my learned friend did, in fact, mention the transcript and it may go to assist his case if I draw your attention to it. Yes, he does not say the transcript but at 410 at line 20 and then line 30, Chief Justice Malcolm first and then Justice Franklyn, they challenge this question “What has the period of lucidity got to do with it?” and quite perceptively. But my learned friend did say at the end:

I think it is. One, of course, needs to look at all of the evidence, and their reports, but my recollection is - and I trust I am not overstating it - that the period of lucidity, or the disbelief of that account, really went to their disbelief of the whole incident.

Now, on the one hand, I respectfully disagree totally with him as to the evidence but in that regard he did, in fact, suggest in his parting shot or parting reference to the Full Court that they needed to look at all the evidence. However, now having said that, against myself but for justice which is what we are here for, my response, with respect, to Justice McHugh would be this. It may be I am not as timid as I appear but if I was in the Full Court in this case and if I had been in my learned friend’s shoes and if I had had the Chief Justice say to me, as we have had the three references that the Chief Justice, in fact, picked out and we went through, what the Chief Justice was saying to my learned friend was “Look, you are home and hosed” if I may use the colloquialism. “You are home and hosed but for the merits. Convince me that there is merit in this.” Now if that had been said to me, and if I had had the views that my learned friend had had ‑ ‑ ‑

McHUGH J: But if the Chief Justice had said that he would have fallen into error, depending on how you define “merit”.

MR BATROS: “Merit” being an arguable case.

McHUGH J: Yes.

MR BATROS: But there must be an onus on an applicant for an extension of time to demonstrate an arguable case. Halliday says it. Gallo says it. The other High Court case that I have referred to, the decision of Chief Justice Gibbs in Thomas v Buttsworth, they all say it and it makes sense. Now, given that there is such an onus and, as I understand it, the outline of submissions was an outline of submissions for the purposes of the application for leave to extend time - it was not for something down the track, as I understand it - and I do not understand my learned friend to be saying anything different. He might interrupt me and correct me if I am wrong. He knew that he was going to be quoting Esther Investments and he knew that he had some burden to establish an arguable case.

Now, if he thought, I knowing different, but if he thought that transcript was going to assist him, then he should have put it before the court. He already had the transcript. We know that because in the affidavit

of Monica O’Brien in support of the application, and I am referring to page 363 of the second volume, if your Honours were to go to that, the unfortunate lady is talking about her overwork and in paragraph 6 it opens up, if your Honours have it, 363:

As a result of this heavy workload, I was not able to begin preparation of the Appeal Book Index -

et cetera. She goes on down to about line 28, she could not get a list of exhibits which was accurate so she says:

As a result, I felt that I had no option but to read through the entire transcript to compile an accurate appeal book index. The transcript comprises some 376 pages.

She has sworn this affidavit on 12 July 1996. I am only demonstrating that the transcript was there and it could have been put in support of an argument as to the merits if my learned friend had chosen to do so. I can only submit to you that all the signals were there from the Bench, that they wanted to be convinced that there was an arguable case. Now if one looks only at the materials that the applicant chose to have before the Full Court, when you look not only at the judgment itself but the quotations of the evidence and the statements in it as to whether the witnesses accepted there was a lucid interval or not, and not only that, also the bases as to why those witnesses concluded it was child abuse, it had virtually nothing to do with the lucid interval at all.

BRENNAN CJ: We will continue this tomorrow morning at 10 o’clock, Mr Bartros.

AT 4.31 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 23 OCTOBER 1997