Jackamarra v Krakouer

[1997] HCATrans 1

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P39 of 1996

B e t w e e n -

BRONITA KARLA JACKAMARRA (an infant) by her next friend STELLA JACKAMARRA

Applicant

and

WILLIAM DARREN KRAKOUER

First Respondent

STATE GOVERNMENT INSURANCE COMMISSION

Second Respondent

Application for special leave to appeal

DAWSON J

TOOHEY J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 MAY 1997, AT 11.44 AM

Copyright in the High Court of Australia

MR L.W. ROBERTS-SMITH, QC:   May it please the Court, I appear for the applicant in this matter.  (instructed by Legal Aid Commission, W.A.)  There is no appearance for the first respondent.

MR P.V. BATROS:   If the Court pleases, I appear for the second respondent.  (instructed by Brian C. Sierakowski)

DAWSON J:   Indeed, the first respondent did not ever enter an appearance, as I understand it.

MR ROBERTS-SMITH:   I think that is the position, your Honour, yes.  The first respondent has virtually taken no part in the proceedings throughout.

DAWSON J:   Yes.

MR ROBERTS-SMITH:   Your Honours, on the one hand, the decision of the Full Court below was one which resulted in a serious denial of justice to this very severely injured infant applicant.  By that court’s procedural ruling refusing her extension of time, she has, in fact, been shut out forever from having her appeal properly determined on its merits; whereas, on the other hand, and on the Full Court’s own view, a decision granting her extension of time would not have resulted in any injustice to the State Government Insurance Commission.

In our submission, that conclusion alone points to fundamental error by the Full Court.  Only one of the four relevant considerations identified by the Full Court was seen here to have been decisive.  Although, on any view, the length of the delay here was inordinate, the Full Court accepted, at page 60 of the application book, lines 20 to 30, that it was through no fault of the applicant, who was blameless.

TOOHEY J:   What was the delay, Mr Roberts‑Smith?  What was the length of the delay?

MR ROBERTS-SMITH:   The delay in terms of the failure to enter, your Honour, was, I think, a matter of a couple of months in the end, although there was five months between the time when the appeal should have been set down and the time at which the application for leave to extend time was made, which was done a matter of a week or so, or even a few days before the hearing before the Full Court.  But that was prompted, in the meantime, by the application of the second respondent to strike out the appeal, and that matter had progressed, then, until just before the application was heard before the Full Court, at which time there was then an extension of time to appeal.

KIRBY J:   Is this a unique Western Australian procedure; that if you are ready you apply to the court to set the matter down, or that you have to do it in a particular time?

MR ROBERTS-SMITH:   No, it had to be done within a certain time, and there was a combination of circumstances - that is, requirements.  There has to be the lodging and service of the notice of appeal; then, within a certain time, there has to be the drafting of the appeal book index and the settlement of that, and then the filing of the appeal books, and then the setting down of the appeal for hearing.  What eventually occurred here was that the application to have an appointment to settle the index for the appeal books was out of time by some months and, in those circumstances ‑ ‑ ‑

KIRBY J:   It was 12 weeks, I think. 

MR ROBERTS-SMITH:   Yes.  And, in those circumstances, the second respondent sought to have the appeal struck out.  But as we say, your Honours, the Full Court accepted below that, even though the delay was inordinate, not only would that not have militated against the grant of the extension of time, in all the circumstances, their Honours indicated quite categorically, at page 8 of the transcript, for example - page 38 of the materials supplied to your Honours - that if the only matter was those three other factors - that is, the length of the delay, and the reason for it, and the prejudice to the respondent - if they were the only three factors, the extension of time was likely to be granted.

So, the court here made its decision in the end solely and decisively on the basis of what it regarded as the lack of apparent merit in the appeal, and we draw your Honours’ ‑ ‑ ‑

TOOHEY J:   Mr Roberts‑Smith, your complaint to this Court really focuses upon the test, does it not, applied by the Full Court in deciding whether, these other considerations not standing in the way of an extension, nevertheless, an extension should be refused.  In other words, is the test whether the case is arguable, or plainly arguable, or lacks merit, or - what is the test that you say the court should have applied?

MR ROBERTS-SMITH:   We submit that the test the court should have applied was whether or not the appeal was arguable, no more, no more than that.

DAWSON J:   Mr Roberts-Smith, the strength of the plaintiff’s case is a matter to be taken into account, is it, at all?

MR ROBERTS-SMITH:   We would submit, your Honour, that that is a variable.

DAWSON J:   Is there any authority on the point?

MR ROBERTS-SMITH:   There is authority.  There is authority, for example, in Western Australia; it was the case to which their Honours referred, Esther, which is listed in our list of authorities and, indeed, is referred to in the judgment.  That identifies the four considerations to which the Court would ordinarily have regard, and merit is one of the four.  The other three are the factors I have mentioned:  the delay; the reasons for it; and the prejudice, if any, to the respondent.  As I have indicated to your Honours, it is quite clear from what ‑ ‑ ‑

DAWSON J:   Why is merit relevant?  One can always move to strike out an action on the basis that it is frivolous or vexatious, et cetera, but that seems to involve different considerations.  Why is merit relevant?  You say it is not, I suppose.

MR ROBERTS-SMITH:   We say it is not, but if it is, as the court below held, then at its very highest it should only be a question of whether the appeal is arguable.  What we do submit ‑ ‑ ‑

DAWSON J:   Otherwise, by a side wind you are dealing with a merits appeal, but not a thorough and proper dealing with the merits.  You are dealing with it simply as incidental to a procedural gateway where a party who is an infant is only 12 weeks out of time.  It seems a certain rigidity in the application of the rules, with respect, that looks a little surprising, but it may be what happens in Western Australia.

MR ROBERTS-SMITH:   We would certainly hope not, if your Honour pleases, and that is, of course, one of the bases upon which we say, with respect, that special leave should be granted.  So that if that is the tendency of the Full Court in this jurisdiction, then it is a tendency which can be corrected now, not only for this applicant but for others in future.  The position here, we submit, is one in which the ultimate objective of the judicial system has been overlooked; that objective, of course, being recently rearticulated by the High Court in Queensland v J.L. Holdings, although that, of course, concerned the amendment of a defence.  The Court pointed out there that the interests of justice had to be the paramount consideration. 

The submission we again would seek to make if the application for special leave is granted, is that that is a consideration which should apply in relation to all procedural matters, not merely amendments of defence and so forth but also, as in this case, applications for extension of time or applications to strike out.  That is what the Court failed to do here, in our submission.  The Court, in our respectful submission, here, if one looks at what they have said, quite clearly purported to determine the matter on what we would say was an artificial application of procedural rules without having regard in the end to what the interests of justice required.  Because if the Court had given consideration to that question, then the interests of justice, in our submission, given the findings of the Full Court itself below, particularly that there would be no prejudice to the respondent, the interests of justice were all one way.  The interests of justice ‑ ‑ ‑

KIRBY J:   I suppose you could get a case where a party obviously had no case, for example, if there was a limitation statute which clearly put a party out of court, and in that case a court would withhold the extension of time because to do so, to give it would be futile.  But in this case the essential question was whether the infant plaintiff had been injured by child abuse or other causes or in a motor car accident.  Do you tell this Court that there was a real issue to be decided in that matter, in the appeal? 

MR ROBERTS-SMITH:   That was our submission to the Full Court ‑ ‑ ‑

KIRBY J:   Because if it was futile I could understand the Full Court’s determination.  If it was absolutely clearly futile then you would stop it and you would withhold the procedural relief.  If there was an issue to be litigated, then one would normally, over 12 weeks, give the extension, especially with an infant, and hear the matter on its merits, properly listed and heard in its full hearing.  That would be the usual procedure that I am familiar with.

MR ROBERTS-SMITH:   Your Honours, that was a submission that we made to their Honours in the court below and it is the submission which we make here.  Clearly, their Honours below came to the conclusion that there was no, or no sufficient merit in the appeal.  When your Honours look at their reasons for so doing it is apparent that to reach that conclusion they actually had to conduct some sort of assessment of the evidence and the arguments which were being advanced initially to the trial judge, the Commissioner in the District Court.

The difficulty with that - and we say where their Honours went wrong again here - was that they had to conduct that exercise without

reference to the transcript, without reference to the oral evidence and without reference to the exhibits.  It is in that way, too, that their Honours also made a fundamental error because, when their Honours came to the conclusion, for example, that it did not matter whether we succeeded in our various grounds of appeal because we still had to overcome the medical evidence of the doctors, the problem there was, as we put to their Honours, that the acceptance of the medical evidence turned upon the impact of the oral and other evidence.

For example, the disregard of the evidence given by Stella Jackamarra and the discounting of the first respondent’s answers to interrogatories as to how the accident had happened and, in particular, that the plaintiff was unconscious immediately afterwards, the discounting of those two points was critical because that was the basis upon which the medical practitioners maintained and had come to the conclusion that the history given was inconsistent with the severity of the injuries suffered and therefore were inclined to the view it was more a matter of child abuse.

DAWSON J:   Mr Roberts-Smith, perhaps at this stage it would be convenient to hear from the respondent.  Mr Batros.

MR BATROS:   May it please the Court.  Your Honours, if I could firstly mention to you that the ambit of the delay in this case before attempting to rectify that delay was five months.  That was from 8 February 1996 until the application for leave to extend the time of 15 July 1996.  That is simply a matter of correcting that temporal factor, but the major question here is whether in effect the Full Court got the test wrong.

KIRBY J:   Is it true, as we have been told, that the Full Court did not have the full transcript and exhibits of the trial before the Commissioner?

MR BATROS:   I believe they did not.  I am not entirely sure of that, your Honours.

KIRBY J:   Well, how can they possibly conduct a proper review of the merits without the full transcript and of the exhibits of the hearing?  How can they possibly consider, if they are going to go into the merits except in a very superficial way, that this is a case where it would be futile to provide an extension for 20 weeks in the case of an infant?

MR BATROS:   I understand the point that your Honour is making, but surely the onus is on the applicant’s counsel, my learned friend in this case, to put before the Full Court whatever material that he wanted to put before them.  If your Honours look at the material that my learned friend has ‑ ‑ ‑

KIRBY J:   But he was putting it before them for the purpose of curing a 20 week procedural lapse in the case of an infant plaintiff.  Instead, what happened was that that was turned into an effective trial on the merits without the transcript, without the exhibits and without the full examination that would normally go with a trial on appeal of the merits.

MR BATROS:   With great respect to your Honour, I think that puts it a little harshly on the Full Court because it was clear to counsel for the applicant at all material times that the court was considering the question of the merits of the case and that that was going to be the deciding factor.  When one looks at the transcript which begins at page 31 of the additional material that my learned friend has furnished to this Court, Chief Justice Malcolm makes it very clear from the word “go” that he considered that the application for leave to extend would be determined by the question of the merits.  My learned friend always had time and notice that that was what was exercising the Full Court’s mind.  Surely it is then up to him to put before the Full Court - and I do not want to push this too strongly but I do want to push it with an appropriate firmness - that it is up to counsel then to put the court in the picture.

Now, my learned friend knew that the court did not have, for example, the pleadings before it.  That is clear, as I recall it, from pages 35 and 36 of that additional material.  My learned friend in fact went further at that time.  I will just take your Honours to it.  If one looks at pages 35 and 36, your Honours will see at the bottom of page 35 a reference there to the judgments.  I am sorry, that is not the one I want to refer to.  It is pages 49 and 50, I am sorry.  We see at the bottom of page 49 there Justice Rowland said:

Are the pleadings in any of these papers, do you know?

“These papers” of course referred to both applications:  the application to strike out and the application for leave to extend time.  My learned friend was there at the time and he was before the Full Court and the Full Court made it clear ‑ ‑ ‑

KIRBY J:   Yes, but he was there on a procedural application for an extension of time for the setting down of an appeal in the case of an infant plaintiff where the solicitors had got 20 weeks out of time and he went along to argue an extension of time and instead he turns up by a side wind without the transcript, without the exhibits, without the preparation to defend the case dealing with, not is this absolutely futile, but the whole merits of the case brought in as a side wind.  It seems a slightly, with respect, irregular proceeding with a 20‑week delay in the case of an infant plaintiff.  It is relevant.  Of course, it is relevant to see whether it is futile, but instead of that matter, so important to the plaintiff, being dealt with by an appeal on the merits, it is being dealt with as a side wind to a procedural application for extension of time.

MR BATROS:   With great respect to your Honour, the merits were made clear - it was made clear to my learned friend that the merits were a determinative issue, not to determine the merits as such, but to determine whether there was any merit or any sufficient merit.  Now, my learned friend was quite able to ask for an adjournment.  He had, in fact, a transcript.  He did not, in fact, refer to it, as I have incorrectly said in my submissions and summary.  That was an error that I do retract and will correct in a moment.  But he could have asked for an adjournment from the Full Court if, in fact, he felt he was disadvantaged.

What the Full Court was saying to him was, “Look, on every other matter we are not going to strike this out, but when we look at the question of merit we want to be convinced that there is sufficient merit.”  Now, they are my words, not the Full Court’s, and my learned friend was put in a full position to argue that and if I could refer you to pages 51 and 59 also of the book which contains the transcript you will see that there was ample opportunity to my learned friend to hand up documents had he wanted to do.  He could have handed up exhibits.  He could have handed up transcript.  He could have asked if he had wanted an adjournment, but he did not do so and it is overly harsh, in my respectful submission, to the Full Court to suggest that they proceeded in any ‑ ‑ ‑

KIRBY J:   I did not mean to be harsh.  I was just responding - as I dealt with 10 of these sorts of applications on a Monday in New South Wales and a 20‑week application, I can tell you, in New South Wales is a rather short application of time default, short.

TOOHEY J:   Mr Batros, I would put the matter somewhat differently to the way Justice Kirby has put it to you, on this footing, that even on the material which was available to the Full Court, the Full Court seemed to approach the matter in terms of whether there was a real prospect or a real likelihood of success.  Now, if the test really was arguability then it may well be said that on the material available to the court, without taking into account transcript and other material, there was at least an arguable case and, if that be right, then that may demonstrate error on the part of the Full Court.

MR BATROS:   If there was, in fact, an arguable case, yes, I would concede that, but, in fact, the Full Court found, and in my respectful submission rightly found, that there was not any prospect of success and that it was right in so doing.

KIRBY J:   Without a transcript?

MR BATROS:   Without the transcript, but having given senior counsel ‑ ‑ ‑

KIRBY J:   How could you make such an affirmative finding without a transcript?

MR BATROS:   Because learned counsel elected not to put a transcript before them ‑ ‑ ‑

KIRBY J:   I am talking about the court’s action.  The court found no arguable case.  How can they make that finding without the transcript?

MR BATROS:   By relying on counsel to put before them all relevant argument and the transcript, if necessary.

KIRBY J:   Well, there is an infant plaintiff behind all this.

MR BATROS:   I am sorry, I missed that last ‑ ‑ ‑

KIRBY J:   I say there is an infant plaintiff behind all this and as is pointed out that the findings, even wrap it up as against the solicitors whose default it was, because it is found that it was a hopeless case and, therefore, the infant plaintiff does not even have the recourse that would ordinarily be available against the solicitors who got five months out time.

MR BATROS:   But on the evidence in this case, your Honour, which must also be considered, it was a hopeless case and as it eventually ‑ ‑ ‑

KIRBY J:   Well, that has never been determined on the merits.  It has never been determined on the transcript and it has never been determined on the exhibits, as I understand this case.  It has been determined by a side wind to a procedural application.

MR BATROS:   Well, not by the Full Court.  It was determined by - at nisi prius it was determined on the evidence.

KIRBY J:   You are forgetting that people do have rights of appeal generally to be heard on the merits.

MR BATROS:   I am not, with respect, forgetting that.

TOOHEY J:   Mr Batros, can I take you back to my earlier question as to the test that the court applied and it seems to emerge on page 61 - there may be other passages - in the judgment of the Chief Justice at line 18:

The critical issue, however, relates to the merits of the appeal.  In my opinion the appeal lacks any real prospect of success.

Now, if that is not the correct test, in other words, if it is a lower standard which the applicant had to meet in terms of arguability or however it is put, that in itself might be an answer to some of the submissions that you have been putting as to the absence of material.  I mean, what do you say is the relevant test in an application of this sort?

MR BATROS:   I find myself in broad agreement with my learned friend on that matter, your Honour.  When he said that it is a test of whether the appeal is arguable, I would agree.  That still is vague and I would seek to define it further by way of submission to you in answer to your question, namely, that to be arguable it has to be reasonably and not fancifully arguable and, therefore, it must have some real prospect of success without deciding that that is necessarily a very high level and, indeed, in the case my learned friend referred to, namely that of Esther Investments v Markalinga (1989) 2 WAR 196, Mr Justice Seaman in that case did say, and it may be of some interest to your Honours to either follow or not follow, agree with or not, at page 205 line 15:

Counsel for the appellant rightly said that he was ill‑equipped to persuade us as to the merits of the appeal because all the materials are not before us, but nevertheless in my view it is necessary in the particular circumstances of this case to make some broad assessment of the merits.  Based upon limited materials and argument as it must be in these circumstances, my view is that if his Honour’s findings of fact are not disturbed, all four grounds of the proposed appeal have poor prospects of success.

He did go on, however, on the next page, page 206, at about line 10 to say:

The prospects of the appeal succeeding are not great, but it is arguable.

So although he found the merit little, he found it sufficient nonetheless to grant the application and Mr Justice Kennedy agreed with him and Mr Justice Franklin did not.  It is a hard factor to define, but the courts have never really given a final definitive definition of the word “reasonable”, but the merit must be of some substance.

TOOHEY J:   But would not, in this case, the first respondent’s answers to interrogatories alone raise an arguable case?

MR BATROS:   No, your Honour, because the medical evidence in this case was absolutely devastating to the unfortunate infant’s claim.  She, of course, was young, and also brain damaged, and she could not give any evidence.  Her mother was not there, she could not given any evidence.  The only person who could give any evidence at all in respect of how the alleged accident happened, if it happened at all, was the first respondent, Mr Krakouer.  Now, he, of course, did not expose himself to the witness box.

TOOHEY J:   No, but my question was directed at his answer to interrogatories.

MR BATROS:   Yes.  If I can descend on that quickly, your Honour.  What was put to the doctors was that, even if an accident had happened in the terms of those interrogatories, is that consistent with the degree of brain damage in this case?  Three consultants said that it was not.  The only difference with Mr Stokes - who was brought in after the case had started, who had never examined the infant, and, of course, the accident was some four or five years before the case was tried - the only difference that he made from his colleagues was that it was possible that such an accident could have produced this brain damage. 

He did not give an opinion that the accident did, and the only other difference was as to whether, following such an impact to have caused such a magnitude of brain damage, there would have been an instantaneous, or virtually instantaneous amnesia, or loss of consciousness.  The first three specialists said yes, and Mr Stokes said it is possible that there could have been a lucid interval and a delay.  But at the end of the day, under cross‑examination, when all the material was put to Mr Stokes, and when he was asked is it more consistent with a motor vehicle accident as described in those interrogatories, or child abuse, Mr Stokes gave the firm view that it was more likely to be child abuse.

So, that is why the Commissioner at first instance - and his view is adopted by the Full Court then on the applications - that is why they both

say that all four consultants considered, to varying degrees, that the likelihood of child abuse as the cause of these injuries was the greater, and that is why the appeal lacks merit, and that is why the Chief Justice said that across the board, in respect of the application and the proposed appeal - across the board, the medical evidence is decisive, and he was quite right.

TOOHEY J:   Yes, thank you.

MR BATROS:   Other than to correct two errors that I made in the second respondent’s summary of argument, I do not take your Honours’ valuable time further.  May I direct your attention, out of respect to the Court and my learned friend, to page 2, paragraph 1.3 - should have deleted in the last line the words “and which he also did”.  And, again, on page 7, in paragraph 3.2(iii), where I say, “including references to passages from the transcript”, that is an error and I apologise for it.  Unless your Honours wish me to assist further, I simply commend the summary.

DAWSON J:   Thank you, Mr Batros.  The Court need not trouble you, Mr Roberts‑Smith.  There will be a grant of special leave in this case.

AT 12.14 PM THE MATTER WAS CONCLUDED