Jones v Hyde

[1989] HCATrans 39

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IN THE HIGH COURT OF AUSTRALIA

Registry No CS of 1988

B e t w e e n -

DERRICK ALAN JONES

Appellant

and

STEPHEN ROBERT HYDE

Respondent

BRENNAN J

.DEANE J

Jones(2)

DAWSOt-i J TOOHEY J McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 1 MARCH 1989, AT 10.17 AM:

Copyright in the High Court of Australia

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MR B.T. SULLY, QC:  In this matter, may it please the Court,

I appear with my learned friend, MR R.L. CROWE,

for the appellant who was the plaintiff in the

supreme court and the respondent in the i~termediate

Court of Appeal. (instructed by Gary Robb & Associates)

MR R.J. ELLICOTT, QC:  If the Court pleases, I appear with

MR A.S. MORRISON, for the respondent. (instructed

by Crossin Power Haslem)

BRENNAN J:  Mr Sully.

MR SULLY:  May it please the Court. May we hand up outlines

of the argument?

BRENNAN J:  Thank you. Yes, Mr Sully.

MR SULLY:  May it please the Court. May we ask whether

Your Honours have had the opportunity of seeing

either the judgment of Mr Justice Kelly at first

instance or the judg~ent in the Court of Appeal?

BRENNAN J:	Yes, the Court has read the judgments in the courts below.
MR SULLY:	Then it is sufficient to say perhaps, and by way

of leading into the submissions that we desire to

put to Your Honours,that the contest before

Mr Justice Kelly was between the plaintiff as the

driver of a motor cycle, the defendant as the driver of a motor vehicle which had come into

collision in Gladstone Street in Canberra.

His Honour delivered an extemporary judgment in which he found a verdict for the plaintiff, refused a submission that there should be a discount for

contributory negligence and proceeded to assess

damages. The matter went to the Full Court, if

we may remind Your Honours, on the basis of a notice

of appeal which is set out at page 119 of the

appeal papers.and which was, if we may say so,

very brief and to the point. It simply took three

grounds of appeal. One was that:

His Honour erred in law in finding a verdict

for the plantiff.

The second was that:

His Honour erred in law in finding that there

was no contributory negligence on the part of

the plaintiff.

And the third was:

Further grounds as become apparent when documentation and the like became available.

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MR SULLY (continuing):  The proceedings before the Full Court

resulted in a short unitary judgment of the

court which set aside Mr Justice Kelly's verdict
for the plaintiff and which remitted the whole

matter to the supreme court for further hearing.

The judgment in the Full Court commences on page 121

and the reasoning of the Full Court is made apparent

at page 123 in a short sentence of three lines which

really sums up, in the end, the entirety of the

approach that the Full Court took:

Careful scrutiny -

Their Honours say -

of the trial judge's reasons for judgment
does not clearly reveal his findings of
fact in relation to the circumstances of

the subject accident.

Their Honours then go on to address in a way to

which we will come, if Your Honours please, presently,

two particular issues of fact which, as it seemed to

Their Honours, Mr Justice Kelly ought to have

addressed and resolved but, as Their Honours saw it,
neither addressed nor resolved and Their Honours then

having said what they wanted to say about those two

matters, come, at page 126, to say at the foot of the

page:

We have carefuly considered what course

this Court should take in the circumstances.
Section 27 of the FEDERAL COURT OF AUSTRALIA

ACT 1976 provides that in an appeal this

Court shall have regard to the evidence given

in the proceedings out of which the appeal

arose and has power to draw inferences of

fact and, in its discretion to receive

further evidence.

And with great respect, we have no quarrel with that,

so far as it goes. Their Honours then go on to take

note of section 28, or at least that part of it
which confers upon the Federal Court, in the exercise
of its appellate jurisdiction,power among others,

to:

Set aside the judgment appealed from in whole

or in part and to remit the proceeding to the
court from which the appeal was brought for

further hearing and determination.

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MR SULLY (continuing):  And Their Honours then go on to say,

"for these reasons" - and we will wish to say

something about that presently as an exposition of

a reasoned line of argument- "the appeal is allowed,

to the supreme court 11 and the relevant costs orders	the judgment set aside and the proceedings remitted
were made. In our respectful submission, that
approach in the intermediate court raises the first two of the four questions which we have set out
in the paragraph numbered 2 in our outline. They
were essentially the questions upon which we sought
special leave to appeal to the Court and they are,
so far as the appeal proper is concerned, the
questions to which we wish to direct our submissions.

Questions 3 and 4 are included because we have

notice of an intention on the part of the present respondent, as we understand what is foreshadowed, to make an application for special leave to

cross appeal in accordance with a document called "a

notice of cross-appeal" which has been served on us

and I cannot tell Your Honours as I stand here whether
it has been filed or not, but as I say, it was served
on us some comparatively short time ago.

As to that, we propose for the present, at

least, if it suits the Court to proceed this way, to
address some submissions on the first two questions

which are, as I say, the ones that we wish to bring

other two questions as circumstances might require. If to the Court for a ruling and then to deal with the to say, the definition - - -

BRENNAN J: Yes, Mr Sully.

MR SULLY:  I am sorry, Your Honour. The first question that

we bring to the Court for its consideration, that is to say the question of the correct principles of law which should guide an intermediate appellate court

as to the extent to which in the circumstances in

which it is permissible for such a court to set aside

a judgment at first instance upon the basis that

the primary judge's expressed reasons do not deal

with the relevant issues of fact before him is, if

we may say so with respect to the Full Court in the

present case, a question which did not, so far as one

can judge from what was said by Their Honours,

receive any real attention by them at all.

They refer to no case. They expound no

principle. They offer no reasoned analysis of what

they saw as the relevant principles, as the relevant

things that ha·d been done by Mr Justice Kelly or

not done and as how they saw in a reasoned way the

one being relatable to the other.

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MR SULLY (continuing): The question is an important one. It

has received, as Your Honours will no doubt be

aware, consideration in a number of the intermediate

appellate courts in the Australian structure, most

recently and we would venture to say most noticeably,

in the Court of Appeal in New South Wales, although
some consideration has been given to the question in
the Full Court of South Australia and of Queensland

and of the Supreme Court of the Northern Territory.

For ourselves, if Your Honours please, we would

propose to take this course, at least to begiP: to

refer Your Honours to the exposition of the law in

the Court of Appeal in New South Wales in

SOULEMEZIS V DUDLEY HOLDINGS PTY LIMITED, the case to

which reference is made in paragraph 3.1.6 on page 3 judgments of the members of that court, three careful and discursive analyses of what are seen as the
of the outline, and we would propose to do that, if

correct principles app.licable- to the question in

hand· We would propose to submit to Your Honours that,

based upon what is there said, it is possible to
present in terms of a framework of relevant principle
the propositions that are set out in the remaining

parts of paragraph 3 .1 on pages ·_ 2_ t..o 3 6f the

outline. We would then propose, if Your Honours

please, against that background of suggested principle,
to invite Your Honours to look a little more

discriminatingly at what happened in the Full Court in

the light of what we will by then have submitted to be

the correct principles.

If Your Honours please, we submit that the first

step that ought to be taken in any auch case as that

which came before the Full Court in the present matter

is the question in 3.1.1, that is to say, the question

whether the resolution of the particular appeal

makes it essential for the Court of Appeal to know

what the facts are that han been found by the learned

trial judge.	The reference which is given there to the
South Australian case of WATSON V ANDERSON is a

reference to a case_-we can perhaps most conveniently

put it to Your Honours in this way -tn which a

district court judge in South Australia had refused

an application to set aside a judgment which had been

obtained by default; he had given just the very
briefest expression of his view that on the material
before him a case had not been made out for ,setting

aside the default judgment and the question for the

Full Court was whether that had been a sufficient

attention by His Honour to his duty to give reasons

for his decision and as an incident of the proper

exercise of the judicial function.

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MR SULLY (continuing):  In that sort of case the Full Court

in South Australia said that what His Honour

had done was permissible because on such an

application the nature of the application did

not require His Honour to resolve disputed questions

of fact but simply to look at the affidavits

which had been put before him and form an

impression, as it were, as to whether or not

there looked to be compliance with those principles

which define when a default judgment may properly

be set aside and when not.

BRENNAN J:  Mr Sully, in the approach that you have here,

is it intended to address the underlying question

which I imagine flows from PETTITT V DUNKLEY,

and that is whether or not the failure to give

reasons leads to the setting aside of the judgment

appealed from?

MR SULLY:  Yes, Your Honour, it is and the point to which

we intend to aim our submissions in that regard

is simply this: that if the authorities which

culminate relevantly, for present purposes, in
the Court of Appeal's decision in SOULEMEZIS
are correct, then a failure by a judge to give

reasons or sufficient reasons is an error of

law. It is something that is indicative of his

having failed to do something which his judicial

office requires him to do.

BRENNAN J:  And therefore the parties, neither of which

is to blame, suffer the consequence of a judgment

being set aside.

MR SULLY:  That would seem to be the conclusion to which

the authorities point because they say in terms,

SOULEMEZIS in particular, that it is an error

of law for a judge not to satisfy, according to the exigencies of the particular case, his duty to give reasons for his decision.

(Continued on page 7)

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Jones(2)

BRENNAN J:  You do not propose to canvass the proposition

that if there is a failure on whatever standard it

should be that a setting aside of the judgment appealed

from is the appropriate consequence?

MR SULLY:	No, we propose to approach that in terms which are relevant to this appellant's case, Your Honour, and
that is simply to say this: if it is true to say
that the failure by a judge to give reasons, or
suffici~nt reasons, is an error of law then the
Full Court - - -
BRENNAN J:	An error of law vitiating the judgment?
MR SULLY:	An error of law vitiating the judgment.
BRENNAN J:	Well, that is the big question, is it not?
MR SULLY:	It is certainly a big question but, Your Honour,

in this particular case the Full Court, as we will

hope to demonstrate to Your Honours, took a very
confused view in the sense, with respect to

Their Honours, that having decided to set the

judgment aside and remit it they then expressed

themselves in connection with a certain subsidiary

application for costs in terms suggesting that

Their Honours did not see the failure of

Mr Justice Kelly to give reasons, as they had held

to be the fact, to be an error of law at all,

They dealt with the remnants, if I can put it that

way, of the appeal before them on that basis, that

there had not been an error of law.

Now, that seems to us, with respect, an<l as

we apprehend the authorities,to be plainly wrong

and itself to call for some correction of the approach

taken by the Full Court in the present case. So

that,if Your Honours plecise, for our part we would

develop,based upon the authorites as we understand

them,the propositions that then follow, that is to

say that once the initial question has been answered

affirmatively then one has to address either of two

possible contingencies, one being that the trial

judge has, in fact, given no reasons at all, the

other is that he has given some reasons and the question then ariseswhether they are sufficient

to discharge his relevant duty. If he has given

no reasons at all, or as we point out in the

paragraph 3.1.3, bare reasons, or what

Mr Justice Hutley called in the TATMAR case,
a caricature of reasons. then the authorities indicate
that the trial j~ bas failed to perform an essential

part of his duty and has manifested error of law

which can be corrected on appeal.

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MR SULLY: (continuing): If he has given a reasoned decision, in

our respectful submission, then the starting point,

as we indicate to Your Honours in the next paragraph,

is that which was suggested by this Court itself in

the CONTENDER case to which we there refer, that the
court to which complaint is made that the judge has

not given sufficient reasons ought not to be zealous

to discern a failure on the part of the judge but
ought to take account, in a real way, of the

practicalities of the situation as they presented in

the particular kind of case with which the particular

judge at first instance was called upon to deal.

It is then necessary, in our submission, to

consider whether, in the particular case, there are matters of which it is appropriate to say that they are matters not so much for detailed reasoning as

matters for judgment which do not require to be

supported by an exposed process of detailed reasoning

in whatever is said by the trial judge and the

credibility of a witness is, in our submission, and,

indeed based upon what Mr Justice Hutley said in the

TATMAR case; a classical example of that sort of issue which does not require and is not, perhaps, susceptible of receiving anything more than a bare statement by the trial judge of what his impressions

and findings are. All of that having been dealt

with, in our respectful submission, the appropriate

approach is then the application of the principles

which were enunciated in SOULEMEZIS and in the TATMAR

case by Mr Justice Mahoney. But we say again,

SOULEMEZIS, in our submission, picks up one way or

another, over the three judgments which were there

given, a correct analysis of the relevant principles.

~ay we take Your Honours, then, to those parts

of that one judgment? We propose, if Your Honours

please, to go at once simply to those parts of the

three judgments which deal with this question of the

proper principles concerning the obligation of a

judge to give reasons for decision. May we take

Your Honours first to the relevant passages from

the judgment of the President of the Court of Appeal,

Mr Justice Kirby?

(Continued on page 9)

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MR SULLY (continuing):	They commence on page L56.	At the

letter F, His Honour says:

I have said that there was evidence upon

which his Honour could have concluded

as he did. I now turn to examine, to the

extent permissible, the acceptability of

the way in which his Honour reached the

conclusion he did. The appellant's

argument on this ground of appeal progressed

thus. The judgment of his Honour recounted

the history of the alleged injuries and

treatment. It recorded the CAT scan. It

found "satisfaction on the evidence" that

the applicant was totally incapacitated to

17 January 1984 and fit for all work thereafter.

Yet this was stated as an assertion. No

explanation is given for the conclusion thus

reached. The only available explanation for

the conclusion is the inference arising from
the fact that a CAT scan was performed on

17 January 1984. Yet that cannot logically

have been the basis for his Honour's termination

on that date of compensation entitlements.

This is so for two reasons grounded in the

evidence. The first is the explanation that

a CAT scan is nothing more than an aid to

diagnosis. It can itself sometimes miss

disc protrusions. In any case objective
evidence of this kind, or its absence, are not
determinative of incapacity for work which is

the criterion posed by the statute. All of

this was made clear in the oral evidence of

Dr Gronow which was not in this respect

contested.

And His Honour then goes, in the next paragraph,

which we will not read to Your Honours, to look

again at suggested deficiencies in the way in which

the judge of the compensation court had gone about

expressing his findings, and His Honour continues

in between the letters C and Don pages 257: An unsatisfactory situation is therefore

brought about by his Honour's assertion

of satisfaction on the evidence of fitness
for work after 17 January 1984. Absolutely
no reason is given for this finding. It is a
finding crucial to the determination of the
case and vital for the respective rights of the

appellant and the respondent.

The duty of judicial officers to record the

reasons for their decisions has been

developed in recent decades in this, as in

other jurisdictions of the common law as an

attribute of the judicial process

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and an incident to the necessities of

appellate review.

His Honour then quotes a well-established precedent in

CARLSON V KING, part of the judgment of the Chief

Justice Sir Frederick Jordon:

" ... It has long been established that it is the

duty of a Court at first instance, from which

an appeal lies to a higher Court, to make, or

cause to be made, a note of everything necessary

to enable the case to be laid properly and

sufficiently before the appellate Court if there

should be an appeal. This includes not only

the evidence, and the decision arrived at, but also the reasons for arriving at the decision.

The duty is incumbent, not only upon

magistrates ..... and District Courts, but also

upon this Court, from which. an appeal lies to

the High Court and the Privy Council.

And the president continues:

In the context of the obligation of District

Court judges, the principle was restated and

explained by this Court in PETTITT V DUNKLEY -

and the president then goes on to quote from the
judgment of Mr Justice Asprey in that case.

BRENNAN J: Before you leave the solicitation of

CARLSON V KING, that passage was taken from t?e judgment of the Chief Justice after he - has disposed

of the hearing of the appeal,when the appeal has

been allowed,and these are obiter remarks with

respect to the duty of .. a judge in hearing a case.

There is nothing in this case which suggests that any breach of the duty leads to an avoidance of

the judgment.

MR SULLY:  No, your Honour.

(Continued on page 11)

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BRENNAN J:  Is there anything before PETTITT V DUNKLEY which

does?

MR SULLY:  Not that we can put before Your Honours. Is

it convenient then to proceed, if Your Honours

please?

BRENNAN J:	Yes.
MR SULLY:	The passage from the judgment of Mr Justice Asprey

in PETTITT V DUNKLEY is in these terms:

" ... where in a trial without a jury there

are real and relevant issues of fact which

are necessarily posed for judicial decision,

or where there are substantial principles
of law relevant to the determination of

the case dependent for their application

upon findings of fact in contention between

the parties, and the mere recording of a

verdict for one side or the other leaves

an appellate tribunal in doubt as to how

those various factual issues or principles

have been resolved, then, in the absence

of some strong compelling reason, the case

is such that the judge's findings of fact

and his reasons are essential for the purpose

of enabling a proper understandidng of the

basis upon which the verdict entered has

been reached, and the judge - - -

DEANE J: Mr Sully, I am just getting a little bit lost.

Can I take you to page 126 of the appeal book?

In the last full paragraph of that page on the

facts of this case, would you dispute that what

Their Honours there say is accurate? That is if, in the facts of this case, there had been

a conclusion - putting to one side whether there

was or not - that the defendant did not put his

blinker on there was negligence; if the conclusion

was that he did put his blinker on there was

contributory negligence in the case of the car

turning into the parking bay with the motor bike

coming up behind and then veering to the left?

MR SULLY:  I certainly would not dispute the first of the

two propositions, Your Honour. That is to say

that if he had not shown his blinker he, the
defendant - it would have been reasonably open
to find him guilty of negligence, is perhaps

the way to put it.

DEANE J:	Then does not the appeal resolve itself to this -
I see, if you dispute the contributory negligence
at least, if the blinker was on.  I follow the
way you are going.
MR SULLY:	Yes.

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DEANE J:  But, subject to that, the question surely is

whether or not His Honour made a finding about

the blinker?

MR SULLY:  Yes, indeed.

DEANE J: Then, if that is so, why are we concerned with

this principle?

MR SULLY:  Your Honour, we are concerned with this principle

because, in our respectful submission, the way
in which the Full Court went about resolving
the question before it was, to say the least,

confused; erroneous in point of principle, as

we would put, in that it did not really consider

at all, in any critical sense, what it ought

to be looking for in Mr Justice Kelly's judgment.

DEANE J:	But let us assume that His Honour had said, 11 1
make no finding about whether the blinker was on or not 11 • In the circumstances of this case
could his judgment have been upheld?
MR SULLY:	I would not wish to have been arguing that it

could, Your Honour.

DEANE J: Then, if that is so, it is on that basis, as

I read it, that the Full Court has overturned

his judgment.

MR SULLY:  So it would seem and I respond in that way because,

with respect, it is not just quite clear how

the Full Court reasoned its way through the matter.

(Continued on page 13)

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Jones(2)

MR SULLY (continuing): It seems to have set up fairly

arbitrarily, if one might respectfully say so, two

particular issues as to which it concluded, more or

less, that His Honour Mr Justice Kelly had not

exposed a process of reasoning _at all,	or had not done
it sufficiently.

McHUGH J:  It is the previous paragraph on page 146 which

indicates the grounds for setting aside the verdict,

is it not? That is, that the passages relied upon

may obliquely amount to a finding that the defendant

did not have his left indicator on when he turned

left.

MR SULLY:	Yes, Your Honour.
McHUGH J:	But the resolution of that issue was not

satisfactory in this matter.

MR SULLY:  Yes, and that picks up that something they said a

page or two before that His Honour might have

intende~ by what he said in the passage that they have
quoted,to make such a finding, "but we think that was
a very obscure finding", is the way the Full Court

puts it.

McHUGH J:	Mr Sully, one thing that intrigues me, is that neither Mr Justice Kelly nor the Full Court seem to
have paid any attention to the fact that the relevant regulation required that the blinker be on 30 metres before you turn left. Am I right in thinking that
was the case?

MR SULLY:  I think that is right, Your Honour. The regulation

is set out, I believe - - -

McHUGH J:	I think it is subregulation (10).
MR SULLY:	Yes.
McHUGH J:	For the defend.ant to discharge his responsibility,

unless it was impracticable, he had to have his

blinker on at least 30 metres before he made the turn.

MR SULLY:  Yes, at page 111 I think, Your Honour, the relevant

terms are set out. Yes, ·quit:e so,_ Your Honour,.

s ubregulation (10). It is about point 6 on page 111 of

the appeal book.

McHUGH J:  The reason I mention that is that it is the second

limb of the dual proposition in the paragraph to which

Justice Deane "!'."ef erred about contributory

negligence; if the defendant had had his blinker on for the whole 30 metres no question of contributory negligence could have arisen could they; there would

have just been no negligence on the part of the

defendant.

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Jones(2)

MR SULLY:	I think that must be so, Your Honour.
McHUGH J:	Ic could only arise if he had had __ it on for a

shorter period in which case the defendant may have

been negligent but the plaintiff would have been

contributory negligent.

MR SULLY:	Or if he did not have it on at all, which was the issue tendered at the trial.
McHUGH J:	Yes.
MR SULLY:	If I might respectfully say so, we take

Mr Justice Deane's point in that it seems to us that

the two issues which the Full Court selected as the

points of their criticism of Mr Justice Kelly's

judgment were issues as to which His Honour did, in

fact, sufficiently according to the principles that

we would suggest to be the correct ones, did expose

his processes of reasoning in relation to those issues.

The question is not whether he -may Lave done

it more fully or in better language; the question is

whethe~ in an extempore judgment in a straightforward

case of nisi prius, His Honour complied with the

essentials of what was required of him in expounding

his reasons for decidine as he did.

McHUGH J:  But can I pursue what Justice Deane put to you?

If expressly, or by implication, the learned judge

did not make the finding that there was no blinke:;: on,

that must be the end of the respondent's case, must

it not? If the learned judge expressly, or by

implication, or by inference, made the finding - - -

MR SULLY:	Did make, yes, thank you, Your Honour.
McHUGH J:	And on the other hand, if he did not make such a

finding, can you succeed?

MR SULLY:	say this is the reason why we began our submissions by Yes, to this extent, we would submit - and may I
inviting the Court to consider what appear to us to be, on the authorities, the correct principles in this regard.
The judgment of the Full Court, itself, is so confused and lacking in logical exposition, as we would
respectfully urge upon Your Honours, tha~ that judgment
ought to be corrected.

(Continued on page 15)

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Jones(2)

MR SULLY (continuing): Whatever one can say about

Mr Justice Kelly's judgment in that regard - and

we will meet that as the event requires - one must

keep one's eye on the cardinal point of this appeal

which is the sustainability or otherwise of what

the Full Court did. The closer one looks at that,

in our respectful submission, the more confused and
lacking in e proper exposition according to the

principles that judgment can be seen to be.

Would it perhaps be cf better assistance to

Your Honours, bearing in mind the way the matter

is developing in the interchanges between

Your Honours and the bar, to approach the matter

this way.

We have given Your Honours, in the paragraph 3.1.5,

the page references to the paragraphs in the judgments

of the three members of the Court of Appeal. Instead

of persisting, as we were doing, with reading them

extensively, would Your Honcurs perhaps be better

assisted if we were to ask Your Honours to accept

a simple submission that what is there expounded

is, in our view, correctly expounded and ought to

receive the imprimatur of the Court and on that basis

to invite Your Honours to attend to what we have

put in 3.2 of the outline which seeks to take up

those matters that I suggested to His Honour

Mr Justice McHugh a moment ago, and then to proceed,

I hope in an orderly way, to look at those particul8r issues of fact that the Full Court set un and resolved in a way which, we submit, did not do justice to

whe.t Mr Justice Kelly had done i.n his judgment in

relation to those same issues.

BRENNAN J:	Well, there is no difficulty in our reading for ourselves the passages in SOULEMEZIS' case.
MR SULLY:	Quite so, Your Honour.
BRENNAN J:	Nor, I would have thought, is there any difficulty

in you proceeding in the way in which you propose.

I would, however, for myself, say this, that for

my part I am not satisfied that the judgment in

PETTITT V DUNKLEY is founded on a correct basis

and that the notion that an act of the Court damages

the parties seems to me to be a proposition at

odds with a fundamental legal principle. So that

if it were necessary to formulate a view as to the

operation of SOULEMEZIS' case for myself I would

need to re-examine the notion of the correctness of

PETTITT V DUNKLEY which Chief Justice Gibbs observed

broke new ground as he said within OSMOND's case.

MR SULLY:	Yes, Your Honour.
BRENNAN J:	But so long as it is understood that for my part

I reserve that question, then you proceed in

whatever ways.

C2T12/l/MB	15	1/3/89
Jones(2)

MR SULLY:  If Your Honour pleases. Might we say in relation

to that, Your Honour, that the teasing out of that

argument comes back to the correctness of the

proposition that a failure, sufficiently severe on
the part of the judge, to expound his processes

of reasoning, to expose his processes of reasoning,

is an error of law. If that is a correct perception

and all the judgments in SOULEMEZIS and, indeed,

the judgments in TATMAR, certainly those of

Mr Justice Hutley and Mr Justice Mahoney, take that

view that it is an error of law,then something by

way of correction of the error must be open to

either party who wishes to take the point before

a Court of Appeal. The proposition that a judga

at first instance has not correctly, according to
law, exposed his processes of reasoning is not a
live question between the parties unless one or

other of them takes it to a Court of Appeal.

(Continued on page 17)

C2Tl2/2/MB	16	1/3/89
Jones(2)

DAWSON J:  What should the Court of Appeal then do by way

of rehearing? Should it then decide the case
for itself; not send it back to the primary

judge?

MR SULLY:  That must depend, Your Honour, upon its satisfaction

with the state of the evidence which is presented

before it. For example, in this particular case

the Full Court was empowered under section 27,

if memory serves, of the FEDERAL COURT ACT to

look at the evidence which had been before the

trial judge; itself to draw what it thought

were appropriate inferences of fact and to decide

the case as it felt ought to have been done at

first instance. One of the many singular things,

if we might put the point that way, about the

judgment of the Full Court in this case is that

there is not any link at all shown in the judgment

between the simple proposition on the second-
last page, that section 27 of the FEDERAL COURT ACT
provides the Full Court with that power, and

the discrete proposition on the last page of

the judgment that Their Honours will, any way,

exercise that one particular of the powers conferred

upon them under section 28. They do not say

anywhere that they saw deficiencies in the body

of the evidence from the point of view of their being able to address what they saw as relevant

questions of fact. They do not say, if it comes

to it, as to any particular fact that

Mr Justice Kelly wrongly decided it, wrongly

found it; or that he correctly found a particular

fact but incorrectly drew an inference from it.

None of those things, on the approach taken in the Full Court, are addressed at all and the

Full Court has not, in any way to which one can point based upon what Their Honours said

in that very short judgment, given any indication

of why it itself did not address the question

of drawing inferences from the evidence that

was before the trial judge.

DAWSON J:	One can add, of course, that the grounds of the appeal did not raise the question of the
judge giving insufficient reasons.

MR SULLY: Quite, quite.

BRENNAN J: If you make out the propositions to which you

now propose to direct us in 3.2, the other problems

disappear?

MR SULLY:  That would be our submission, Your Honour.

C2Tl3/l/SDL 17 1/3/89

Jones(2)
BRENNAN J: So long as it is understood that, for my part,

I reserve the questions that I mentioned.

MR SULLY:  Yes, Your Honour.

BRENNAN J: It is really a question for Mr Ellicott rather

than yourself.

MR SULLY:	We thought it proper, if Your Honour pleases, since we obtained leave to appeal on the basis that there was an important question of law and
that it was, at least, the question of the proper role of an intermediate court of appeal in upsetting
another judgment at first instance because of
a supposed failure on the part of the primary
judge to expose his processes of reasoning, that the matter not having been, in terms, ruled upon in the court we ought, at least, to present the
matter as a question proper for the Court to consider and to suggest that the analysis in
the judgments in SOULEMEZIS, which were not canvassed
before the Court which granted leave to appeal
I should at once tell you, correctly expounded
the law and might well receive express approval in this Court since the opportunity is presented otherwise by the appeal ~f bringing the matter foreward and because, ma: we again put as we did on the application for leave, it is a matter of some practical significance at large, indeed, in the administration of justice but certainly in the administration of justice in what might be described as the more confined context of the Capital Territory and the Supreme Court in the Capital Territory.

McHUGH J: This whole question has arisen, has it, because

it arose in New South Wales because there was

only an appeal on a question of law from the

district court and therefore, in PETTITT V DUNKLEY,

because the judge said no more than, "I find

for the plaintiff" or "for the defendant", whatever

it was, the court had to find an error of law. (Continued on page 19)

C2Tl3/2/SDL	18	1/3/89
Jones(2)

MR SULLY:	SOULEMEZIS posed the same problem.
McHUGH J:	The same with DONGES V RATCLIFFE, the liquor case.
MR SULLY:	But I was about to say, if Your Honours please,

that we did see it as an important matter to

suggest for the consideration of this court that - - -

BRENNAN J: There is no proposal to rescind special leave

at this stage, Mr Sully.

MR SULLY:  Quite, Your Honour. But whatever else the Court

does, it ought to consider saying something by way
of correction of the approach which was taken in

the Full Court in this particular case and which, in our respectful submission,is not in any sense

satisfactory as an exposition of a rational basis

consistent with proper legal principle for setting

aside arbitrarily a judgment of a judge hearing

a straightforward case where he has given

coherent reasons.

If Your Honours please, the matter to which

we refer in the paragraph 3.2.1, we have

already touched upon. That to which we refer in

3.2.2 would perhaps benefit from a little more

exposition. At the conclusion of the argument
and again inunediately following the announcing of

the judgment in the Full Court, an application was

made by the present appellant for an order under

the FEDERAL PROCEEDINGS COSTS ACT, the equivalent,

that is to say, of the suitors fund certificate. Do

Your Honours perhaps have a copy? I imagine not

since it was not on our list, but we have copies

if it would assist Your Honours to have them.

We have extracted for Your Honours as well the relevant pages of the transcript of what occurred

in the Full Court in that regard. May we hand those

up? As Your Honours see, section 6 is to the point,

In subsection (1):

Subject to the Act, where a Federal appeal

succeeds on a question of law, the court

that heard the appeal may, on the application

of a respondent to the appeal, grant to the
respondent a costs certificate in respect of

the appeal.

(2) Subject to this Act, where a

Federal appeal in relation to the amount of

damages awarded by a court succeeds, the

court that heard the appeal may, on the
application of a respondent to the appeal,

grant to the respondent a costs certificate.

Your Honours may, with respect, take it that the

appeal in the Full Federal Court was a federal appeal

C2T14/1/BR	19	1/3/89
Jones(2)

in the relevant sense. There is a definition

earlier in the Act but Your Honours would perhaps

accept from me that it is wide enough to cover that.

Your Honours see that on page 42 of the transcript

of what transpired in the Full Court on 4 November,

at about point 5, counsel then appearing for the

present appellant makes an application that if

the court finds against the respondent and makes

an application for a cost certificate, subsection (1)

of section 6. He is asked:

What is the question of law on which the

appeal would succeed?

And he gives the answer which is there recorded.
And there is then some desultory exchange about the

extended power given by subsection (2), to which I

referred Your Honours a moment ago. Then on page

43 of the transcript, as Your Honours see, at about

point 3, point 4, one of the merrbers of the Ful 1 Court

interposes with the proposition that it is a

question of fact and then goes on to speak of what

His Honour describes as -

a WARREN V COOMBES situation -

that being the case, His Honour opines at which
everybody should be looking. -His Honour says:

It is a factual appeal, that is what it is about.

And then again there is some exchange between bench

and bar as to whether there is some, as it were,

intermediate point where the appeal can be dealt with

on a basis which leaves intact Mr Justice Kelly's

finding as to damages.

(Continued on page 21)

C2Tl4/2/BR	20	1/3/89
Jones(2)

MR SULLY (continuing):  So it continues, and the following

day, on 5 November, when judgment was announced - and if Your Honours would turn over a page or two

to the page numbered 47 Your Honours see that

Mr Justice Gallop announces the decision of the

court. He is asked as to whether it is a decision:

in relation to liability only -

and responds that in the view of the court:

if we set aside the judgment on liability

the judgment, so far as it relates to damages,

goes as well.

Then. there is, again, some conversation, some exchange about preserving damages; we do not detain Your Honours

with that. On page 48 counsel then appearing for the

present appellant takes up again the question of an

entitlement to an order under the FEDERAL PROCEEDINGS

ACT. He submits that the relevant criteria have been

met and is met with this response by one of the

members of the Full Court:

that it is a factual appeal ..... not on a

question of law, it is on a question of

fact.

What remains simply can pose the proposition that if

that is correct, well, there is nothing in

section 6(2) that will be capable of saving the

application for costs but it seems to be clear that

upon whatever basis the Full Court, notwithstanding

that it found that Mr Justice Kelly had not complied

with the requirements of his judicial duty to expound

and expose his reasons an error of law, as we would

submit on the authorities, nevertheless refuses the
cost certificate because there was not an error of

law. Now, that, with great respect, is to say the

least confused reasoning which might properly attract

some correction by this Court.

McHUGH J:  What does all this come to? If you are right

the respondent has never had an appeal properly

considered by the Full Court of the Federal Court,

has it?

MR SULLY:	That is right, Your Honour.
McHUGH J:	Well, can we give you the relief that you seek?
MR SULLY:	We would submit you can if Your Honours see that

the only basis which attracted the intervention

of a Full Court at all, namely, the proposition that

as to two matters of fact suggested by Their Honours

there had been no finding at all, if we can persuade

you that there was a sufficient finding by

Mr Justice Kelly and expression of it that ought

to entitle us, in our submission, to the relief

C2T15/l/MB	21	1/3/89
Jones(2)

that we seek because there would be no basis
then at all, looking at the approach of the

Full Court at its - - -

McHUGH J:  Was it not the Full Court's duty to examine the

whole of the evidence guided by the trial judge's

findings of fact?

MR SULLY:	Was it their duty to?
McHUGH J:	Yes, was it not their duty and have they discharged

that duty?

MR SULLY: Well, as to the first of those questions it would

be our submission that it was their duty to consider

the whole matter. They are bound under section 27

to go no further, to have regard to the whole of

the evidence before the trial judge. Whether they

did it or not is a matter that one cannot answer

in a vacuum,one can simply work on the basis of

what is said in the judgment and the bases of

reasoning in the judgment in so far as they are

exposed at all are demonstrably wrong, in our
submission. If that is so then the appeal ought

simply to be upheld and the appellant should be

left to have the fruits of his judgment before

Mr Justice Kelly, which on the hypothesis I have

offering, ought never to have been disturbed by

the Full Court.

TOOHEY J:  Mr Sully, why should the Full Court examine the

evidence for themselves unless they were persuaded

that there had been some error on the part of the

trial judge? If the appellant before the Full Court

had not been able to make out a case of error

on the part of the trial judge, at what point does it

become necessary for the Court of Appeal, or the

Full Court, to examine the evidence for themselves?

(Continued on page 23)

C2T15/2/MB 22 1/3/89

Jones(2)
MR SULLY: Well, that would depend, I suppose, Your Honour,

upon how the appellant, before the Full Court, would seek to shelter behind the generality of

those grounds that Your Honours have noticed in the ground of appeal

of appeal, that there was simply an error of law
in not finding contributory negligence against the

plaintiff and in finding negligence against the

defendant.

DEANE J:	But they did examine the evidence for themselves and
they said, "The facts of this case - if he put on his left-hand indicator, there was at least
contributory negligence. If he did not put it on, he was negligent."
MR SULLY:	Well, even if that is so, Your Honour, the way in "Which they then dealt with Mr Justice Kelly's handling of the
evidence and findings on it, is still open to criticism
in point of principle.
DEANE J: Well,I was not suggesting to the contrary.	I was simply

suggesting that perhaps we might go to it.

MR SULLY:	Yes, Your Honour. There are two of those issues that
were set up in the Full Court.  They were the issue,
first,as to where the defendant's vehicle was on the roadway when it turned and, secondly, whether or
not the defendant had given an indication by the
prescribed signal that he was intending to turn.
There was no dispute that the defendant had made a
slight turn to his right without giving any indication
that he was going to do that, nor was there any
dispute that the defendant had then immediately
turned back into his left heading, as it would seem
from the evidence, towards a car-park on the northern side of the street.
The evidence in the plaintiff's case was that the defendant's vehicle, when it made the first of those
two movements, had been very close to the imaginary
centre line of the street. That was consistent with
what the defendant himself had said in answer to an
interrogatory which had been administered to him.
It was to the contrary of what the defendant said at
the trial which was that he had been closer into his
left-hand kerb.  And that was the issue to be decided,
according to the Full Court, by Mr Justice Kelly and,
in that regard, Mr Justice Kelly, in our submission, did, in fact, consider it and he did it in terms
which appear on page 115.

DEANE J: It is also relevant, Mr Sully, that there was parking

on both sides of the road.

MR SULLY:	There wasprovision for parking on both sides of the
road, Your Honour.

C2Tl6/l/VH	23	1/3/89
Jonesc(.2)

DEANE J:  Which means that the right-hand veer could have

been going into park on the right-hand parking area.

MR SULLY:  Indeed, Your Honour. But that, with respect, makes

no difference to the issue of fact, as the Full Court

expounded it.

DEANE J:	But it is relevant to the conduct of your client.
MR SULLY:	Indeed, Your Honour, but as to that, his evidence,
which was accepted by the trial judge - and Your Honour
will bear that the Full Court nowhere says that the
trial judge was not entitled to accept him.
DEANE J:	I was trying to be helpful, Mr Sully.
MR SULLY:	Well, Your Honour understands it is not always easy

to tell.	However, we are grateful to pick up any
lifebelt that Your Honour throws us.	I was about to

say, before taking Your Honours to page 115 of the

appeal book, whether Your Honours would bear with me

if I were to take you just briefly to the four or five
pages of Mr Justice Kelly's judgment which are his
exposition, not his reasons and findings, on the
question of liability because, in fairness to

His Honour, perhaps, it is better to see particular

things that he said in a fair, general, setting.

Would Your Honours be so good as to go to page 111

of the appeal book?

(Continued on page 25)

C2Tl6/2/VH	24	1/3/89
Jones ( 2)

MR SULLY (continuing): At the foot of that page His Honour

picks up the relevant facts of the matter.	At
the time and place he left his employment to
travel to a destination some distance away.

Leaving the premises, riding his motorcycle, he turned east and rode along Gladstone

Street. He was followed a short distance

behind by a friend known as Paddy Tatiyakorn - who gave evidence, might I interpose, which again

was accepted and not touched upon at all in the

Full Court.

A red Falcon sedan was being driven by the

defendant in the same direction along Gladstone
Street but in front of the plaintiff. It
had passed him as he waited at the entrance

onto the roadway from his employer's driveway.

When he first got onto the roadway of Gladstone

Street he was about 100 yards behind the

car. Some distance east of the premises

of J. B. Young Limited on the southern side

of Gladstone Street there was a shop described

as Dick Smith's Electrical Store. Nearing
this store the defendant moved, so the plaintiff
said, a couple of feet to the right in the

lane in which he was travelling at about

15 kilometres per hour. At that point the

plaintiff was travelling, he said, at about

30 kilometres per hour. He said that he

saw no braking lights on the defendant's

vehicle nor any hand signal.

To the south of Gladstone Street opposite

the area where the defendant veered right

there was a parking lot ..... and on the opposite
side of the road was a similar parking lot.

Having turned to the right as he did the defendant then turned left to enter

the parking area on the northern side of

the street. Estimates of the angle ..... vary

but I am satisfied that he approached it

at an angle of the order of 30°. The plaintiff,

seeing the defendant turn right, moved to
his left but when the defendant crossed

his path as he did when he turned left the
plaintiff was unable to avoid colliding

with the rear of the defendant's motor vehicle

at a point just to the right of the towbar.

At the collision the plaintiff was thrown

over the rear right corner of the defendant's

vehicle and sustained the injuries complained
of.

C2T17/1/SDL	25	1/3/89
Jones(2)

The defendant insisted in evidence that

at all times when he turned left he had

his left indicator on. He did not indicate

that he was turning right having regard

to the relatively slight distance he proposed

to turn. It is common ground that he did

turn slightly to the right before veering

left to the northern parking area and this

satisfies me that the plaintiff was in fact

keeping a proper lookout.

In answer to an interrogatory the plaintiff

said that he applied his brakes approximately

15 metres from the point of collision.

By applying the brakes he reduced his speed

from 60 kilometres to 30 kilometres per

hour.

I allow for the discrepancies which

generally attend estimates of distances

in circumstances such as these.

I am satisfied that the collision took

place when the front of the defendant's

vehicle was almost at the gutter on the
northern side of Gladstone Street. Bearing

in mind the angle at which it was travelling

at that time it must have blocked the whole

of the northern quarter of the roadway.

It was generally accepted during the course

of the hearing that the roadway was the equivalent of four lanes wide although not divided by any markings.

I am satisfied that the defendant did not apply his brakes at or immediately before

the point where he turned to the right.

This is consistent with the physical circumstances and with the evidence of the plaintiff and Mr Tatiyakorn who was in a

position where he had an unobstructed view

of what happened. He was travelling behind

the the plaintiff. It is significant that the plaintiff,

in an answer to an interrogatory made by him and

tendered against,him by the defendant, said that

at all distances fran 50 metres to 5 metres before

the point at which the collision occurred the speed

of the defendant's vehicle did not vary. At all

those times he was travelling at approximately 15

kilanetres per hour. The distance between the driveway - which he had originally left -

and the point of impact was variously estimated but

the greatest estimate was 300 metres. Allowing for the

fact that the plaintiff had to come onto the roadway fran

the driveway after the defendant's car had passed him

travelling east it would have taken him little time to

catch up even though the defendant was slowing down. It

seems plain on the evidence generally that the defendant

travelled the last 50 metres or so before the collision

C2Tl7 /2/SDL	26	1/3/89
Jones(2)

without slowing down. It follows logically enough that lights. As I have already said, I 2Ccept that the
he did not, during these last 50 metres or so, apply his
brakes and this lends support to the plaintiff's and

plaintiff was keeping a proper lookout and it ~-1ould

have been imoossibl2. in the circumstances for him to have failed to see at the distance he was travelling behind the defendant a left hand indicator in

operation.

Accepting the plaintiff as I do -

may we interpose again, if Your Honours please, an

important matter and one to which the Full Court

nowhere refers -

I am satisfied that the defendant was negligent

in turning as he did. When he turned to the

right he gave no signal and would inevitably

have led a person following behind - - -

McHUGH J:  What does His Honour mean by that when he gave no

signal to turn to the left or no signal to turn to

the right?

MR SULLY:  No signal when he turned to the - well actually,

both. Negligent in not giving any signal when he

turned to the right because that created a situation,

if one accepted that his position on the roadway was

as the plaintiff's case proposed, where a reasonable

plaintiff, having unobstructed passage to the left of

that apparently right-hand turning vehicle, could
then proceed. Negligent in turning to the left, if

he did so without giving the indication required by

the regulation, because of the consequence which was
that he veered across the path of the approaching

vehicle, which on the hypothesis he had misled by

giving his unsignalled movement to the right and took

up a position which, as His Honour specifically found,

blocked the whole of the northern quarter of the

carriageway.

DEANE J: What His Honour's judgement does leave open is the

possibility that he put on his left turn indicator the

split second before collision.

MR SULLY:	Yes, Your Honour.
DEANE J:	In other words, when, as it were, the split second

before collision it would not have signified anything

to your client because he would see the collision

coming, no doubt and would not be looking for

indicators at that stage.

MR SULLY:  Exactly, Your Honour. And that, with great

respect, if why we took the liberty of reminding the

Court of what four, at least, of its members said in

C2T18/1/JH	27	1/3/89
Jones(2)

the CONTENDER case. One must be careful not to go

through the reasons, as it were, with a fine
toothcomb; the question is, do they sufficiently

expound a rational process of reasoning consistent

with relevant legal principle on the comparatively

straightforward facts of a comparatively simple

case of a kind with which this Court at first

instance deals literally every day of the week?

McHUGH J:  That is why I drew your attention to

regulation 136(10) because even if the defendant had

put on his left blinker even for some distance before

he turned left, he would have been in breach of that

regulation unless he had turned it on 30 metres

before he turned left.

MR SULLY:  Yes, Your Honour. And so His Honour continues:

Accepting the plaintiff as I do, I am

satisfied that the defendant was negligent

in turning as he did. When he turned to the

right he gave no signal and would inevitably

have led a person following behind as the

plaintiff was to expect that he would

continue the turn. His immediate veering to

the left placed the plaintiff in an

impossible position for he could not then

avoid the collison.

Although I think that the plaintiff was

travelling close to the defendant's vehicle

in front of him, I do not think he was
negligent in doing this at least to the

point where the defendant turned to the

right. There was nothing to suggest that he

could not have passed the defendant on the

left in ~afety~ Indeed, the evidence does not

establish that he was travelling directly

behind the defendant. The defendant gave

evidence that he was travelling on the left

hand side of the road, close to the gutter,

but in an answer to an interrogatory

numbered l(d)(l) tendered against him he

indicated by a sketch that his vehicle was

in fact very close to the centre of the road

before it turned to the right.

I think that the defendant was negligent and that there was no contributory negligence on

the part of the plaintiff.

Now, with great respect, bearing in mind as it is

proper to do in our submission, that His Honour was

delivering an extemporary judgment in, as I say, a

straightforward case of the kind of which the Court deals

every day of the week, it cannot fairly be said, in our

submission, that those reasons of His Honour do not

C2Tl8/2/JH 28 1/3/89

Jones(2) (Continued on page 28A)

sufficiently comply with his judicial duty to make

findings relevant to the issues before him and to

express clearly enough to preserve everybody's

relevant rights, what those findings were. And in

the end that is the core proposition to which this

particular appeal is aimed.

(Continued on page 29)

C2T18/3/JH	28A	1/3/89
Jones(2)

BRENNAN J:  If you should succeed on that basis where does

that leave the challenge made by the defendant to

the judge's findings as raised by the ground of

appeal? In other words, has the Full Court dealt

with the defendant's case if you should succeed on

this aspect of the case?

MR SULLY:  That is to say the defendant's case as made in the Full Court?

BRENNAN J: In the Full Court.

MR SULLY:  Once again we are fixed, as are Your Honours, with

what the Full Court said. It would seem to us that

the answer to that question, fairly, is yes because

the reasons of the Full Court suggest that part

at least of the argument that was put by the there

appellant, the defendant, was indeed an argument

based upon a failure on the part of His Honour to

make findings of fact.

McHUGH J:  I did not draw that impression. I got the

impression that the argument of the defendant in

the court below was that the Full Court should accept

that he did put the indicator on.

MR SULLY:  Well, I had in mind, if I might respectfully say,

at page 124 that part of the judgment in the Full Court

which says:

As counsel for the defendant pointed out on the

hearing of the appeal to this court, his Honour

did not deal with the defendant's evidence

denying that he was travelling in the lane

closest to the imaginary centre line and his

explanation about his answer by way of sketch in

the interrogatory to the effect -

which is there set out.

In our view it was critical -

and so forth, that he make a finding of fact on that

issue.	Does Your Honour have it, page 124, the
second -

McHUGH J:  Yes. But also in that penultimate paragraph,

"Even more fundamental".

MR SULLY:	Yes, Your Honour.
McHUGH J:	It would seem to suggest that the defendant certainly

did not give up his case on liability. He was saying

that there had been no resolution of the question

as to whether or not, "I did, as I continued, to

put on my indicator."

C2Tl9/l/MB	29	1/3/89
Jones(2)

MR SULLY:	Quite so, Your Honour.
McHUGH J:	Well, under WARREN V COOMBES was it not the

Full Court's obligation to determine that question?

I mean they could have done it by saying, "Well,

the trial judge found that he did not by inference, that is the end of that point", or they say, "Well,
the trial judge made no fin ding about it ir1 which

case we will make a finding." They appear not to

have dealt with it on either footing.

MR SULLY:  Well, Your Honour, it is impossible to say, on

the bare bones of what appears in that short

judgment. But if there is to be any inference made

about it it should not be an inference unfavourable

to us in the circumstances of this case. The fact

of the matter is the Full Court had the whole thing
laid out before them in terms of the transcript that

was before Mr Justice Kelly, they had their powers

under the FEDERAL COURT ACT. They have chosen a

particular basis upon which they say, "We ought not
to have had our verdict from Mr Justice Kelly on the

assumption that that basis chosen by the Full Court

is wrong", then what they have done ought to be

reversed.

BRENNAN J:	What order do you seek from this Court?
MR SULLY:	An order upholding the appeal, if Your Honour

pleases, setting aside the judgment in the Full Court

and restoring the judgment of Mr Justice Kelly.

BRENNAN J:  To substituting for the judgment of the Full Court,

a judgment dismissing the appeal to that court from

Mr Justice Kelly?

MR SULLY:	Yes, Your Honour.
BRENNAN J:	Well, now, as the Full Court fully dealt with the appeal to it, if it has dealt with it simply
by sending the matter back for retrial, are there
issues still outstanding that are unresolved by the Full Court?

(Continued on page 31)

C2Tl9/2/MB	30	1/3/89
Jones(2)

MR SULLY:	Well, Your Honour, not so far as we are concerned.
We are content to take our stand in this Court upon the basis that we have lost our verdict in the
Full Court upon grounds taken by Their Honours
which are not sustainable and, if that is right, then we should have our verdict back.
DAWSON J:	Are you asking us to consider the facts of the case?
MR SULLY:	No.
DAWSON J:	Because if you are not, and that is the order you are
asking for, that would mean that no one has considered
the facts on appeal notwithstanding that that was the
basis on which the appeal was brought.

MR SULLY: Well, that might be, with great respect, a matter for

the present respondents to consider, if they want to.

Our position is simply this:  we are fixed with a

particular judgment in the Full Court and, on the view

that we offer both as to the law and as to the

relevant findings by the trial judge, that is wrong and,

if it is wrong, it ought to be set aside and the

rectified and we should have our verdict back.

consequence of that -wrong approach in the Court of

BRENNAN J:  Perhaps you might be in a position better in reply to

deal with any problem that arises of this kind.

MR SULLY:	Yes, Your Honour.
DEANE J:	But if you succeed on the blinker, the Full Court has

said that, on its consideration of the facts, the

verdict against the defendant in negligence was right,

that would only leave a question of whether they

should have considered contributory negligence.

MR SULLY:	Yes, Your Honour. Well, as the presiding Judge says,
perhaps in reply we can be of more assistance to
Your Honours but, as matters stand, that is the simple
approach for which we would contend.

BRENNAN J: Yes.

MR SULLY:	Those are our submissions in-chief, if Your Honours
please.

BRENNAN J:  Thank you, Mr Sully. Mr Ellicott.

MR ELLICOTT:	Your Honours, may I hand up copies of the respondent's submissions? Attached to it is an
annex which relates to the facts and may portend
some approach on the part of the respondents.

C2T20/l/VH	31	1/3/89
Jones(2)

BRENNAN J:  Mr Ellicott, it might be of assistance if we could

have your submissions on the factual matters first

so that we can see how the question of law arises.

MR ELLICOTT:  Which question of law, if I may ask?

BRENNAN J: Whichever question of law you propose to address us

on and on which we have been addressed and to which

you propose to reply.

MR ELLICOTT:  If Your Honour pleases. YourHonour, there is at

the outset a question which,I would submit, is a

matter of significance to this Court and that is,

that we are here and also that we are asked to

address the Court on a question of fact.

(Continued on page 33)

C2T20/2/VH	32	1/3/89
Jones(2)

MR ELLICOTT (continuing): In 1984 certain things happened

and I do not need to remind Your Honours of those.

Now, it would appear that this matter is before

this Court when it should not be before this

Court, with great respect, having listened to what

my friend has said and that, therefore, we should
not be deprived of any order below because the

Full Court of the Federal Court did not err in

law in the sense that this Court would consider

it now an error of law, pursuant to the provisions

of the JUDICIARY ACT,and I only highlight that

fact. I hope my submission is not taken as

impertinent but it is, I would submit, appropriate
to say to the Court at this stage that it may be
that the proper order is to rescind the order for
special leave rather than to proceed with the
matter.

However, having said that and I will say no

more about it, I do propose to address Your Honours
on the facts but can I just make this observation:

that is that before the court below, the Full Court,

Their Honours obviously regarded this as a WARREN V

COOMBES'matter, that is to say,that they were looking

at it in the light of section 27 of the FEDERAL COURT

ACT and, therefore, that they were entitled to draw

inferences of fact.

Now, before you can draw inferences of fact,

it is proper to say that one needs to find the

primary facts and if you rely on a certain part of

the testimony before the court, and you do not -
that is, as a judge - if the judge does not find the

facts from that testimony, where there are

inconsistencies which are material, not insignificant

but material, then that may be a reason why the court

cannot in itself - that is, the Full Court - even

applying a WARREN V COOMBES approach, draw the

inferences of fact and substitute a verdict and it

may feel that, in the circumstances, the only

appropriate course is to send the matter back to

the trial judge.

Now, in the course of our address - - -

BRENNAN J: For a retrial or for restatement of reasons?

MR ELLICOTT:  For retrial. One would not, perhaps, reject

the notion of restatement of reasons but I would

submit that the appropriate course is to send it

back for retrial, that is, pursuant to section 28.

But it is with that broad approach that we would ask Your Honours to consider what has happened

here and it is not to the point to assume that

because Their Honours selected certain matters of

C2T21/l/SH	33	1/3/89
Jones(2)

deficiency that they were not somewhat concerned
about other aspects of the judgment because we

would want to submit that His Honour did fail,

in very significant ways, to make findings where

there were considerable inconsistencies in the

facts because he accepted the plaintiff, he says,

but when you look at the plaintiff's evidence

there are inconsistencies in it and very

significant ones, in our submission.

On the other hand, there was a plaintiff's witness, a Mr Tatiyakorn, and Mr Tatiyakorn was

following behind in Gladstone Street and he says

some things which are inconsistent and when you

come to look at the photographs that were tendered,

you find the plaintiff and Mr Tatiyakorn putting

the point of the impact where the defendant put it

and not where the judge found it to be.

(Continued on page 35)

C2T21/2/SH	34	1/3/89
Jones(2)

MR ELLICOTT (continuing):  I just say that by way of

introduction simply to indicate that, in our

submission, there are some very serious questions to

be looked at quite apart from just the bare bones,

as it were, of the Full Court's judgment, and that

when one goes a little bit deeper one comes to

some difficulties in His Honour's judgment which

perhaps were apparent to the Full Court but they

did not see fit to go to them at length. I notice

they gave their judgment overnight just as the

trial judge did. It was not an extempore judgment

on his part:  He gave it the next day. He may

have said it from the bench but it was after
consideration. Likewise the Full Court gave its

decision the next day.

Your Honours, the best way to deal with this

question of fact is probably - and I am not asking

Your Honours to tell me what to do - to take
Your Honours to the document which we say is an

annexure. We put it as an annexure because we sought

to set out there some of the inconsistencies which

we say should have been resolved. Then I will take

Your Honours to the judgment and indicate some other

matters which pick up those to some degree but which,

we submit, are additional reasons why this is an

unsatisfactory judgment.

There is a question of speed. Can I just say

this: at the end of our argument we would want to

say to Your Honours that it looks as if what has

happened is that this plaintiff who was waiting

in Gladstone Street to come out of JB Youngs and

turn to the right in an easterly direction, this

plaintiff saw the defendant's car, a red Falcon,

heading east and it was going, he says, at 60

kilometres per hour. Now, after he gets out on to

the roadway, of course, the red Falcon is up the road

a bit and the evidence was that the red Falcon was

going at 60 and he says he was only going at 60.

Of course, they are the speed limits and he was on an

unregistered vehicle.

What he says is that he caught up to him

but to catch to him, that is catch up with the

defendant, he would have to be travelling over

60 kilometres per hour. What we want to ask Your Honours

to perhaps conclude at the end of the day is that this

was the classic case of a motor-cyclist who passes on the left, who was careless in doing so or indifferent in doing so as to what the person in front of him

might do, and that he has made his decision, not

based on any veering to the right on the part of the

defendant, but he has just made his decision to do it.

And the evidence of the plaintiff when it is analysed

and put at its best in favour of the defendant is that

he made his decision to pass the defendant on the

C2T22/l/BR	35	1/3/89
Jones(2)

left, not when he saw the defendant moving av0 feet

to the right, as he says, slightly turning to the

right, but before that some 70 or 80 metres before

that. That when he saw the defendant slowing down,

that is, not when he was moving to the left but

slowing down, he then decided to pass him on the

left. And he continues on until he is one car

length behind the defendant and then, of course,

the defendant veers to the left to make this turn.

It was too late. He is into the back of him.

It is the classic case of, we would want to submit -

and I just want to put this to Your Honours so that

Your Honours will understand where I am leading to -

it is the classic case of a person on a
motor bike following a vehicle and making a decision
without proper consideration of what that leading

vehicle may do, getting himself into an impossible

position and then having a collision.

(Continued on page 37)

C2T22/2/BR	36	1/3/89
Jones(Z)

MR ELLICOTT (continuing):  Now, having said that I want to

take Your Honours to the version of the facts.

These are some questions that we say the judge did not determine, not as between the defendant

and the plaintiff and the plaintiff's witness, but

within the plaintiff's own evidence. So we say how,

if both vehicles were travelling at 60 kilometres,

as the plaintiff alleged, could the plaintiff close

on the defendant's vehicle from 100 metres.	Now,
at 28 point 7 he is asked:

When you were driving in an easterly

direction in Gladstone Street, can you

recall what speed you were going?---60

kilometres an hour.

And were there any vehicles travelling ..... ?

---There was the car and there was Paddy's

motorbike.

Paddy is Tatiyakorn.

Well, when you say the car, what car was that?

---The red Falcon.

And when you got on to Gladstone Street - well,

did you see that car, that red Falcon ..... ?

---Yes, it passed me when I was at the end of

Young's driveway.

Now that is just before he goes over the road and turns to the right.

And when you got on to Gladstone Street, how

far in front of you was the red Falcon?---About

1000 metres.

And when you first started to travel in the

same direction as the red Falcon, what speed

was the red Falcon going?---Approximately 60

kilometres.

And how far in front of you was the red Falcon

when you first got on to Gladstone Street?

---About SO metres.

So he has halved it in three seconds from 100 metres

to SO. Now, subsequent evidence indicates that he

caught up with him, he was within three to two -
depending on which version you adopt - car lengths,

that is, five metres or 15 metres of the red Falcon

and the evidence was that it was 200 or 300 metres

down the road from the exit to J.B. Youngs. So there

is a question there, which is a real one, given the

scenario that we are suggesting from the defendant's

point of view, that here is a motor cyclist - he is

not going at 60 kilometres to catch up with a man

C2T23/l/MB	37
Jones(2)

who is travelling at 60 kilometres, he has to travel

faster than that.

TOOHEY J:	Unless the Falcon slowed down in the meantime.
MR ELLICOTT:	That is, again, a matter that could be argued about but that has to be resolved, that very question
has to be resolved.  Was it because he slowed down
or in the light of some subsequent evidence one might
conclude that it was approximately 50 metres before the actual collision that the defendant had actually
slowed down, that is to say, the admission by the
plaintiff was that the defendant had travelled for
50 metres before the accident at a speed of 15
kilometres per hour, and some other evidence from
the plaintiff says that the defendant slowed down
from about 30 to 40 metres before that. So you
can have him slowing down from 60 kilometres to
15 kilometres from about 70 to 80 metres before the
accident.  But there is still 200 metres there, or
more, from J.B. Youngs to that point where he slows
down.

You have also got some evidence that they are

only a small distance apart when he is travelling

at 15 kilometres.

(Continued on page 39)

C2T23/2/MB	38
Jones(2)
MR ELLlCOTT (continuing):	So,Your Honour, yes, that question

could arise and it may be an explanation but there is

no decision that determines i½ and we are just

pointing to inconsistencies that needed to be dealt

with:  "Where did the Falcon start to slow?" In-chief

the plaintiff said the Falcon slowed from initial

60 kilometres per hour to about 15 when he was about

two car lengths away.	That is what he says at
page 30 point 8:

Are you able to say where it was in

relation to Dick Smith's that the car

changed its speed from the initial 60

you told us about?---From a short distance

before Dick Smith's driveway.

And did you see any brake light when that

occurred?---No.

And how far away were you at that stage?

---About two car lengths.

That is his evidence, Your Honours, as to how far he

was away when they slowed down, and that reflects back

on the earlier issue of how fast was he really going;

Was he guilty of excessive speed? Andin interrogatories

the plaintiff said the defendant's speed had been

consistently 15 kilometres since 50 metres before

impact and in evidence, it should be there,	he had
started slowing 30 to 40 metres before that.	Now, if

I can take Your Honours to the cross-examination at

page 46 point 5, where he says in the middle of the

page:

I take you to the third page ...... Your

reply was, "The speed of the defendant's

vehicle did not vary. At all times he

was travelling at approximately

15 kilometres per hour."	ls that right?
---That is right.

Over the page: 

And your answer was, "I applied my brakes

approximately 15 metres from the point of

collision. My motor cycle was fitted

with drum brakes ..... By applying the brakes

I reduced my speed from 60 kilometres to

30 kilometres -

so that is the second aspect of that, and then over on

page 48:

I suggest to you at the time that you started

to take some notice of that vehicle, it was
travelling easterly at about 15 kilometres

per hour?---No. At the time I saw the vehicle,

he would have still be matching my speed.

C2T24/l/HS	39	1/3/89
Jones(2)

Right. Well, it slowed down, did it, as

you travelled along Gladstone Street?

---That is correct.

And for some distance it travelled at

15 kilometres per hour?---That is right.

And you continued to approach it at

60 ..... is that correct?---I slowed down

a bit. I had reduced my speed slightly, yes.

The answer to this interrogatory does not it

indicate that you were travelling 60 kilometres

per hour before you applied your brakes,

about 15 metres behind the red Falcon?

---That is right.

That is the situation, is not it?---That is right.

So you continued to travel at 60 kilometres

per hour, even though you were aware that the

red Falcon had slowed down to 15 kilometres

per hour. ls that correct?---That is correct.

And would be fair to say that it had slowed

down and travelled at 15 kilometres per hour

for a distance of in excess of 100 metres?---No.

Well when it slowed down from 60 kilometres per

hour to 15 kilometres per hour, did you see its

brake lights com on?---No, I did not.

So it just slowed down without evidence of

braking ..... ?---That is right.

Well it gradually slowed down?---Right.

Over what distance did it gradually slow

down from 60 kilometres per hour to 15

kilometres per hour without indication of

brake lights?---About 30 metres, 40 metres.

And then it continued to travel at

15 kilometres per hour, is that correct -

so if you add the 15 to the 30 and the 40 you get

80 or 90 and that, of course, is inconsistent with

what he had said earlier.

(Continued on page 41)

C2T24/2/HS	40	1/3/89
Jones(2)

MR ELLICOTT (continuing): This is the plaintiff whom

His Honour accepts. One available inference, we say, is that there was no sudden emergency

created by the defendant's vehicle. Another

is that whichever version be true, the plaintiff

was in some respects at least an unreliable witness. There are two possibilities here, in our submission.

One is to say if an appellate court is looking at this evidence, either it is clear that the

defendant was not negligent or, alternatively,

that the plaintiff has not disc.harged the onus

and that, either way, of course, it is satisfactory

from the respondent's point of view.

Over the page, we say the plaintiff continued

to drive at 60, even though aware the defendant

was travelling at 15 and did not brake or slow

until about 15 metres away. An available inference

is that this showed insufficient care for his own

safety. At least it required, in our respectful

submission, His Honour to consider that and he did

not.

The plaintiff said in cross-examination that he

made up his mind to overtake on the left when he was

about 15 metres away from him. However, in

re-examination, he said he decided to pass the

Falcon on the left when "I noticed he was slowing

down", that is, 80 or 90 metres before impact.

Now, Your Honours, that is worth, if I may

respectfully suggest, looking at because we submit

this is a very material matter because the plaintiff

has said two inconsistent things neither of which are necessarily inconsistent with the defendant not being negligent but they are so inconsistent within

themselves and the matter having been elicited in

re-examination, the answer in re-examination is of

great significance because the plaintiff was given
an opportunity, apparently, to undo some damage it

was thought had been done and he did not undo it
at all.	He said something quite different and, in

the middle of 51:

When you were approaching the rear of this vehicle at 60 kilometres an hour, did you intend to pass it on the left or the right? ---Well, I was slowing down unaware of what the driver was doing.

That is an interesting sentence. It is capable of

two constructions. That is giving him the benefit
of the doubt for the purposes of argument but it is

capable of two constructions which suggests - one

view would be that he did not know what the driver

was - he was not paying attention; that there is

C2T25/l/SH	41	1/3/89
Jones(2)

some evidence that he was not keeping a proper

look out. If all he meant was he was uncertain as

to what the driver was doing, well that might be

consistent with his evidence.

You did not slow down that much because you were doing 60 kilometres about 15

metres from the rear of the vehicle,

were you not?---Yes.

Well, at 15 metres from the rear of the

vehicle, did you intend to pass it on the

left or the right?---On the left.

So you had made up your mind to pass it

on the left at that point of time?---That

is right.

To pass it on the left in an unmarked

laneway, is that correct?---That is

correct.

Is there any reason why you did not make

up your mind 15 metres from the rear of

this vehicle to pass it on the right?---
---Because he was further over on the
right of the lane than he was on the left
of the lane. There was more room to pass

him on the left without going around to the

right of him.

Now, that is important, not only because it gives that version as to when he did it but it is also

important because it indicates that the reason why

he was passing on the left, he said there, is not

because he is noticing or believing that the

defendant is going to turn to the right, it is

because there is more room on the left uf the	imaginary lane - that is on the left of the
defendant in the imaginary lane - than there was
on the right of him. (Continued on page 43)

C2T25/2/SH	42	1/3/89
Jones(2)

BRENNAN J: 1b-at is the problem. I suppose the other way of putting it

is because he believed that he had a clear passage

on the left.

MR ELLICOTT:  Yes, well, that is what he says, he had a clear

passage on the left. That is not what he says:

there was more room t·o pass him on the left

without going round to the right of him. But the

whole tenor of the plaintiff's case was that he

did this because he believed that he, the defendant,

was turning to the right. Now, that is not, in our

submission, consistent with that. That is quite to

the contrary. Now, if Your Honours go to 56, he is

asked this question - in the middle of 56:

Do you recall being asked about passing, making

a decision to pass on the left?---Yes.

When did you decide to pass the red Falcon

on the left?---When I noticed he was slowing

down.

Now, he was slowing down long before the point that

he indicates at page 51 in that passage I have just read	and, if that is so, then that, we say, is very
danming of the plaintiff's case, remembering that,
in opening, if I may just quickly take Your Honours
back to page 22, what had been said was:

When in the vicinity of Dick Smiths the

Falcon suddenly turned to the right without

any indication, and the plaintiff moved

to the left side of his lane to pass the

Falcon on the inside, when suddenly and

without warning the Falcon turned to the

left and the collision then occurred with

the plaintiff's bike colliding with the rear

of the defendant's vehicle.

Before the collision occurred the plaintiff

will say that he applied his brakes and was

travelling at about 30 kilometres at the time

of the collision, and he will give evidence

that the estimate of the defendant's vehicle

at the time of collision was round about

15 kilometres per hour, and he will say that he

was - that is the plaintiff - heading towards

the gutter.

And then further down:

There will be photographs shown ..... which will

show parking bays ..... and the inference will

be that the defendant was apparently going

to turn into one on the righthand side of the

road and then changed his mind and decided to

go into the lefthand side ..... without indicating

his intention to do either.

C2T26/l/VH	43	1/3/89
Jones(2)

And His Honour said:

Well ..... there is another inference that

although he said he swerved out to the

right so that he could more easily turn left.

And that indeed is what the defendant suggested.

Now, that opening is, in our submission, clearly

pointing to the proposition that the plaintiff

passed him on the left because he thought he was

going to the right. That is not the evidence and

the evidence at page 56 that I have just referred

to is, we would submit, very danming of the

plaintiff's case. But His Honour did not deal with

it and it is a matter that His Honour, in our

respectful submission, should have dealt with and

it is a deficiency in his judgment and it would

entitle an appellate court, such as this, applying

the principles in WARREN V COOMBES,to form a

different view to that formed by His Honour.

We say one inference to be drawn is that the

plaintiff was committed to a high speed, overtaking

on the left, well before the defendant's manoeuvres.

Another is that he committed himself to a very

dangerous course of action in regard to a vehicle

which, presumably, had slowed up to 15 for a reason.
Another is that his two answers cannot stand

and not to the right because there was more room

together and reveal him to be an unrealiable witness.

on the left. Well, I have read that. Yet earlier

he said he went to the left because the defendant

manoeuvred to the right. So there are two

inconsistencies - to explain the plaintiff's

movements.

(Continued on page 45)

C2T26/2/VH	44	1/3/89
Jones(2)

MR ELLICOTT (continuing):  And again, it is all right for my

friend to point to that passage in His Honour's

judgment, "I accept the plaintiff", but there is

no attempt then to justify in His Honour's judgment

these inconsistencies.

Now, we come to another matter which I have

already adverted to, but, again, it is important.

Would Your Honours have the photographs that were

exhibits? Now, the defendant's evidence, I would

remind Your Honours, is that the car was 2 or 3

feet over the kerb heading in towards those car

parking spots on the left and I am looking at

exhibit C if Your Honours would have that. And it

has got B2, F2, Fl and Jl on it. That was the

defendant's evidence.	Now, B2 is the point of impact
which the plaintiff fixed.	Now, His Honour found

that the impact was supposed to be within the centre

of the rear bumper bar - . he had said, I am sorry,

that the impact was with the centre of the rear

bumper bar and that the car was at an angle of

15 or 20 degrees but still wholly in the street.

Now, that marking of the point, ~nd presumably

it starts where the point was, that is B2, that is

the B - that would not put the car in that position.

But that is where he put it when he was asked to mark

it and that is inconsistent with his evidence.	Now,
if Your Honours go to the next exhibit D, X marks

the spot there that Mr Tatiyakorn showed as the point;
that is interesting because that is pretty close too

to where the defendant would have put it because the

defendant had the car sort of over the kerb as I have

put to Your Honours, into that parking bay. Whereas

the point of impact, according to the plaintiff, on
other evidence is supposed to be, if Your Honours

imagine those particular lines on the road being lanes,

two in one direction and two in the other, the point

of impact is supposed to be somewhere near the line

which is in the roadway which is first from the left-hand

gutter. So, an obvious inference, we say, is that the turn

must have been a very gradual one and not very far

advanced, otherwise the vehicle must have been off the

road. Another inference is that it makes the

plaintiff's version that the defendant was travelling four

feet from the centre of the road inherently unlikely.

Now, Your Honours will appreciate that the defendant

said he was in the left-hand lane, the one closest to

the kerb. Whereas the plaintiff's evidence was that

he was in the right-hand of those two easterly

proceeding lanes. Now, on the question of angles, it is

interesting to notice that His Honour seems to have

accepted the defendant's view. If Your Honours go to

page 112, at the foot of that page, His Honour said:

C2T27/l/JH	45	1/3/89
Jones(2)

}1R ELLICOTT (continuing):

Having turned to the right as he did

the defendant then turned left to enter the

parking area on the northern side of the
street. Estimates of the angle at which he

approached the northern parking area vary

but I am satisfied that he approached it

at an agnle of the order of 30°.

Now, the plaintiff, at page 50, said, in

cross-examination:

At the point of time that you hit it, was

the Falcon still at an angle to the street?---Yes,

he was at a - his front was pointing towards the

carpark.

Would you agree that he was about 15 or

20 degrees away from the eastern traverse

of Gladstone Street at the time you struck

him?---Yes.

So he had just started his turn, is that

right?---Yes.

When you struck the rear of the vehicle,

was the front of the Falcon still in

Gladstone Street?---Yes.

It had not entered the carpark area?---No.

Now, at the foot of page 62, Mr Tatiyakorn

had said:

The Falcon was only at a slight angle away from

the centre line when Mr Jones hit it, was not

it?---No, sir.

What angle do you say it was from the centre

line?---45 to the left, sir, 45 degrees to

the left.

45 degrees, all right. And the front was still

about 2 foot 6 away from the kerb, from when

the accident occurred?---Estimated, yes, sir.

And then the defendant, at page 71, he says!

Approximately what angle to it had the car adopted?---About 30 degrees.

About two-thirds of the way down, and that is the evidence which His Honour accepted.

BRENNAN J: Where is this leading us, Mr Ellicott, on this aspect?

I mean, to take that finding, for example, about the

30 degrees: His Honour made a finding about that.

C2T28/l/PLC	46	1/3/89
Jones(2)

MR ELLICOTT:  Yes.

BRENNAN J: And there was evidence to support it.

MR ELLICOTT: Well, it is just curious that he does not accept

either of the plaintiff's witnesses on it and he

chooses an angle of 30 degrees and it just happens to

be what the defendant said. It is just curious.

BRENNAN J:	But what is the point that it is leading to?
MR ELLICOTT:	The point is that it makes one wonder whether

His Honour, with very great respect, is really

analysing the evidence with the care with which a judicial

officer should examine the evidence.

BRENNAN J:  Does that lead then to a retrial or does it lead to

an upsetting of his findings?

MR ELLICOTT: In our submission, on this evidence, on the

approach that His Honour took, that is to say, saying,

"I accept the plaintiff's evidence", this Court,

as was the court below, entitled to look at the

plaintiff's evidence and say, "Does that justify a

verdict for the plaintiff?" and come to the conclusion,

in our submission, because it is so unsatisfactory, that Your Honours enter a verdict for the defendant or, alternatively -either on the basis that Your Honours

think that the defendant was negligent or alternati..vely that the

plaintiff's evidence does not discharge the onus of

satisfying the Court.

Now, that is one approach. The other approach is

to say, "Look, as an appellate court, we really can't

do justice to this because the trial judge has not considered quite a number of significant matters - not immaterial matters but quite material matters - which

are inconsistencies within the plaintiff's own evidence

and, therefore, the proper course - we

are not faced with a case where we have the primary

facts decided and we are just drawing inferences, we

are really being asked to decide the primary facts and
the judge has not satisfactorily determined them.	He

has not weighed up the inconsistencies and therefore

the proper course is to send it back."

That course, the latter course, that I have

suggested, of sending it back, could be based on two
approaches: one could be WARREN V COOMBES, in our

submission. In other words, that - yes, it is an appeal

on fact but this Court considers it but decides that in
order to do justice between the parties, these issues need

to be resolved by somebody who is considering the evidence

in a trial situation, and we are not able to do that

and, therefore, we will send it back.

McHUGH J:  I am not quite following this first basis for sending

it back. Does not WARREN V COOMBES say that it is the

appellate court's duty to consider the evidence itself?

C2T28/2/PLC	47	1/3/89
Jones(2)

MR ELLICOTT: It is, Your Honour, and Your Honours may

well decide, having considered it - this is the

point I am seeking to make - that really it is

not a satisfactory conclusion; that the Court

cannot draw a satisfactory conclusion in fairness

you might think, to both parties. You might

be inclined to say - well, if I put it in my

client's favour - Your Honours might be inclined

to say, "Well, we think it ought to be - on that
evidence we would find for the defendant but,
perhaps in fairness to the parties, it ought

to go back".

I am just indicating that within the

WARREN V COOMBES principle there is room for

a court to say, "Because, not so much inferences

of fact but the primary facts have not been adequately
considered and we are not really in a position

to consider them, the proper course to do justice

between the parties is to send it back". We

are not advocating that course necessarily;

it is the course that the court below adopted

but, on the WARREN V COOMBES approach you could

equally say, as we would urge Your Honours to do, to say

that this evidence is clearly unsatisfactory

and the judge should have rejected the plaintiff's

case and found for the defendant, and on one

of two grounds. One would be that the plaintiff's

evidence is unsatisfactory and the judge has not resolved inconsistencies and, therefore, on looking at it we conclude that the plaintiff

has not discharged the onus, if Your Honours

are not prepared to say, "Well, on it, the defendant

was not negligent" or, alternatively, Your Honours

could say, irr our submission, that His Honour's

reasons were so deficient - and this brings us

to the other point - that the matter should be

sent back to him.

That is a serious step, obviously, in relation

to reasons given by a trial judge but if those

as we have pointed out or matters to which I	reasons do not come to grips with matters such
will come in relation to the Full Court's judgment,
if the trial judge has not come to grips with those matters in his findings of fact and in his statement of reasons, then that ought to
be a ground for this Court as it would be for
the Federal Court to send it back - for any appellate
court.

TOOHEY J;	To send it back for a retrial?
MR ELLICOTT:	To send it back for a retrial.
TOOHEY J.	Why send it back to the judge who dealt with

it if it is go back for a retrial?

C2T29/l/SDL	48/49	1/3/89
Jones(2)

MR ELLICOTT:  I said earlier I would not resist that as an

alternative but I would submit the proper course is

to send it back for a retrial so that the matter

is dealt with. You can never prescribe that a

particular judge will deal with it. It may be that

the only satisfactory way is to do it that way but,

on the other hand, I am not resisting the notion that

this Court could send it back as could the Full Court

for the judge to - - -

McHUGH J:  Does that mean that it is appealable error if a

trial judge does not make relevant findings of fact.

MR ELLICOTT:	Yes, that is our submission.
Mc HUGH J:	What is the authority for that proposition?
MR ELLICOTT:	We would submit that that comes out of PETTITT

V DUNKLEY. There is a sort of guarded statement by

the former Chief Justice in PUBLIC TRUSTEE V OSMOND.

He says the only thing new about it is that it is

an error of law, but -

BRENNAN J:  He says it broke new ground.

MR ELLICOTT: It broke new ground, yes. It may be breaking

new ground as far as this Court is concerned but the

idea that it was an error of law was there as stated

in PETTITT V DUNKLEY and one can ask the reasons,

why have the courts been saying for so long that

judges have a duty to state their reasons.

DEANE J: But, Mr Ellicott, in the ordinary accident case it

is quite impractical to make findings of fact about

everything. I mean, what was involved here was your

client said he was driving along, he applied his

brakes, he put on his left-tum signal, he then

veered to the right and then the accident came. The

plaintiff said he wa~ behind him, he did not put on his brakes because there were no braking lights, he

did not put on his left-tum indicator. And the

trial judge made it quite clear that he believed the

plaintiff.

Now, in that context when the Full Court says if he did not put on his left-turn indicator -

and one must read that prior to a time when it would
have been useful - he was guilty of negligence.

I mean, why do we go off on all these peripheral

things?

MR ELLICOTT: 

Your Honour, they are not peripheral, in our

very respectful submission, because they lie at the
heart of the decision as to whether the defendant

was negligent or not and it would be very easy to

deal with the matter that way and say, "Well, the

C2T30/l/BR	so	1/3/89
Jones(2)

Full Court was obviously - there was a finding there

and the Full Court was wrong and therefore we will

allow the appeal".

DEANE J:	No, but if there are matters that were raised by your client before the Full Court and they have not dealt
with hecause of the way they have dealt with it,it may well be that it should go back to the Full Court.

MR ELLICOTT: That may be another course that may appeal to

Your Honours but my concern that is from my client's

point of view is that we should not be deprived of

our WARREN V COOMBES assessment: that is really

what I am putting to this Court. We should not be

deprived of it in the ultimate if Your Honours did

conclude that there was some deficiency in the

Full Court judgment. To put it another way, what

we would say is that this Court is seized of the

matter now. It is up here. The Court has given

special leave to appeal. Maybe it should not for the reasons that I have suggested. But if it is here, it

is here and therefore this Court can give it the

WARREN V COOMBES treatment, if I can use that shorthand

expression.

(Continued on page 52)

C2T30/2/BR	51	1/3/89
Jones(2)

McHUGH J:	But against you, assuming that the Court came to the conclusion that Mr Justice Kelly found as a fact, at
least by inference, that the defendant did not have his left indicator on, that is the beginning and end of the case, is it not?

MR ELLICOTT:  With respect not, Your Honour. The whole

question is whether the plaintiff was keeping a

proper look out and if the defendant did not have

his left blinker on that does not conclude the

matter as against the plaintiff or, for that matter,

as against the defendant. The question is, was the

defendant negligent and if he did not have his blinker

on, notwithstanding that he did not have his blinker

on, because the question of the regulatory provision
obviously does not determine, or the breach of the

regulatory provision, does not determine the issue of negligence. I am not saying it is not relevant

because it is put there for a reason and nobody is

going to argue that that is not relevant. But in

the long run if this plaintiff, as we would put it,
set about in a way that is not unconnnon for motor

cyclists to pass on the left because they are a smaller

vehicle, because they want to hurry on, that may

have happened quite oblivious to whether there was

a blinker on or not.

BRENNAN J:  It may have but if the finding is that there

was no blinker on, if the finding is that there was

a proper look out kept, and if the finding is that
before the left-hand movement of the vehicle, of the

car, there was a movement towards the centre of the

road by way of a right-hand veering, what else does

one need?

MR ELLICOTT:  Your Honour, what one needs is a proper

assessment of the evidence given by the plaintiff.

I have sought to take Your Honours through that;

I have not finished yet with the plaintiff's witness,

Mr Tatiyakorn, but he has got some problems too.

BRENNAN J:  But does it not -given those facts to which I have

just referred, either those findings are supportable

or they are not. If they are supportable,is there

anything else in the case?

MR ELLICOTT: Well, we submit there is.

BRENNAN J:	On the basis of the evidence that you wish to take us to?
MR ELLICOTT:	On the basis of the evidence I have already

taken Your Honours to and on the basis of some

criticisms we would make of Mr Tatiyakorn, who

presumably was accepted. My friend said that this

morning and we agree with that. But the acceptance

of Mr Tatiyakorn was never resolved in terms of

inconsistencies on vital matters.

C2T31/l/MB	52
Jones(2)
BRENNAN J:	Well, then, let me just understand it a little

more clearly. If one finds in the judgment of

Mr Justice Kelly findings of fact with respect

to those matters to which I have just referred,

the findings themselves may be open to challenge

for reasons that you are addressing, but if the
findings were made is there anything deficient
in the judgment on any test which requires it to

be sent back for retrial?

MR ELLICOTT:	Yes, yes, Your Honour.
BRENNAN J:	In other words, if the findings can be upheld?
MR ELLICOTT:	I follow. I am sorry, I did not follow what

Your Honour was putting to me before. Yes, we would

submit that there would be something deficient and

it really comes to what I was submitting when, I think,

Your Honour Mr Justice Deane asked me a question

which was to take me away from the law and back to

the facts. But we would submit, Your Honours, that

there is a duty on a primary judge to set out his

findings of material facts. Now, what is material

will depend on a particular case, obviously.

(Continued on page 54)

C2T31/2/MB	53
Jones(2)
MR ELLICOTT (continuing):	I am not talking about peripheral

facts; I am not making submissions about peripheral

facts, I am talking about the material facts and

the trial judge has, in our respectful submission,

a responsibility to find those facts. It is just

part of the judicial method; it is bread and butter

for a judge; he should do those sorts of things;

and the cormnunity expects him to do it and he ought

to be criticized if he does not. And then, if there

are inferences of fact to be drawn, well he should
draw those and, obviously, if there are legal
principles to be applied, he should apply those.

Now, we would submit that when you take the knife out, as it were, to the facts here, the material

facts, His Honour, although he has drawn some

conclusions of fact, has not resolved the difficulties

in arriving at those conclusions. That means he

has not really got to grips with the task of finding

the elementary or fundamental facts. And in that

sense his judgment is deficient. Even though he has

drawn some conclusions which Your Honour puts to me,

well, if they were correct,well,maybe he could find
negligence, that is, apart from any WARREN V COOMBES

sort of approach to the matter, that is the basis of

that principle?

We would submit that there should be no less intervention on the part of an appellate court where

a judge has failed to comply with the need to
specify facts and reasons, if I can use that shorthand

expression, than there is when there is a failure to

observe propositions of law, for instance - or to apply

propositions of law, which are correct. In other words,

a judge who does not comprehend the law - it might

be unjust for both the parties that he does not

comprehend it and it may cause expense. But, nevertheless,

the consequence is that one or other of the parties

can succeed on the appeal if he has not properly

construed and applied the law.

Well, likewise, we submit, a plaintiff or a

defendant in the position of an appellant with a

right of appeal based on law and fact as in the

Federal Court in this case, in such a case the Court on

appeal is entitled to find as a matter of law that the

judgment is deficient because it does not satisfy what

is needed in order to allow the Full Court or this

Court to properly determine the appeal before it.

BRENNAN J:  Well, that is the difficulty I have because the

radical difference between the error of law that you have spoken of and the failure to display the steps in the finding of fact so that the appellate court can

re-examine those findings seems to me to be the

difference between demonstrating an error which affects

the judgment and demonstrating an error which may or

C2T32/l/JH	54	1/3/89
Jones(2)

may not affect the judgment. If your argument is

right, for example, what does one say about a

judgment that is delivered today with reasons to be

given tomorrow morning? Is the judgment invalid

at the moment of delivery because no reasons have been

given?

MR ELLICOTT:	No, Your Honour.
BRENNAN J:	Well, then, how is it that it subsequently loses

its validity on the reasons that fail - that do not

simply display that there has been an error affecting
the judgment - if that were so, and, of course,
deficiency of reasons may display that sometimes -
but if there is just a failure to display all the

steps and the reasoning then for my part I do not

see that there is anything which shows that there

was error affecting the judgment at all.

MR ELLICOTT:  Your Honour, first of all, may I respectfully

submit that this matter should not be considered on

a, what I would - and I say this with respect - a

technical basis, that is to say,the court on appeal is

going to say, "Well, what did the judge decide?"

All right, he found a verdict today and gave his reasons

tomorrow, that is his judgment,and that is what is

appealed from.

(Continued on page 56)

C2T32/2/JH	55	1/3/89
Jones(2)

MR ELLICOTT (continuing):  Sometimes the parties, of course,

do not get access to the judgment in writing for

some time but they have to take their notes and

it may be deficient. I think that might have

happened here - that is, by the time the appeal
time ceases - but, in any event, that question would
be resolved, we would submit, as a matter of
substance. The Court of Appeal would say, "What

was the judgment appealed from?" and the reasons

are there, the verdict one day and the reasons

tomorrow.

McHUGH J : Another way of putting it may be that the reasons which are later

expressed are the reasons which were already held

and led to the decisions.

MR ELLICOTT:  Yes. So that, from that point of view, we would

submit there is no problem but one has to ask the

question: is there any point in any courts saying
anything about the duties of trial judges to give

reasons? Is there ary substance in all that has fall en

from judges in all parts of the world, apparently,

on this particular issue? Is it just a, sort of, counsel of perfection? Is it just something that

appellate courts say and they might admonish a

trial judge for not doing what they consider to be

- for not meeting what they consider to be appropriate

judicial standards or is there beyond it some

principle which can be so offended that it deprives
parties of their rights? Now, that is the point

at which we come into it and we are not concerned

in this case about questions where there are appeals

on questions of law only.	We are not concerned about
that.	We are not concerned about cases where issues

of fact cannot be contested, workers' compensation

cases. We are concerned with them because they

happen to have judgments about reasons in them but

this is not such a case.

What we are concerned about - - -

DEANE J: Should you not read a judgment like this on the basis

that it started with the first sentence, "I can dispose

of this case on the findings of fact which are express

or inferred in this judgment". Now, if that is the

way you read it, your task is to show that he could

not dispose of the case properly on those findings
without, for example, finding precisely where on
the road the collision occurred. Well, I do not

think there is any problem in that, is there?

MR ELLICOTT:  There is no problem in that but there is also no

problem, in our submission, in this: in making

findings on what we regard as material matters that

I have already addressed Your Honours on. Your Honour would follow that.

C2T33/l/SH	56	1/3/89
Jones(2)

DEANE J: Yes, I follow but the other way of looking at it

would be that, if one could say the judge, in the

context of the evidence, has addressed and disposed

of the main issues and they are sufficient to

justify his decision, that would be the end of it.

MR ELLICOTT: Well, can we test it this way, Your Honour:

supposing the trial judge simply said, "In this

matter, I have heard the evidence. It is all there in the transcript. I have considered the matter at

length. I finished the trial two days ago. I have

considered it at length and I am satisfied that the

defendant was negligent and I find a verdict for

the plaintiff in the sum of" so much. Now, would
that be a judgment of which this Court would say,

"Not only are you a very unsatisfactory judge for doing that," but say, in addition, "Jou have been

guilty of an error of law and we send it back to

you" or you might say, "Well, look, we can look at

the facts ourselves. It did not involve any

credibility question and, therefore, we will draw

some inferences" but is there a point where, if

you could not apply the WARREN V COOMBES test,

the Court would have to say, "Yes, it is an error

which justifies this Court" - in effect, an error

of law. It has to be that in order to direct that
the judge rehear it or, perhaps, give his reasons

in writing.

(Continued on page 58)

C2T33/2/SH	57	1/3/89
Jones(2)

MR ELLICOTT (continuing):  Now, if that is right, then one has

to define the point where the court will intervene.

Now, that is very difficult to do that because obviously it has got to take into account a lot of

circumstances.	The best way one can do it may be
to adopt a broad proposition.	For instance, in this

Court, in OSMOND's case, if I can just read the

passage shortly, but if Your Honours would like it,

it is 159 CLR 656 at pages 666 and 66 7. This was

a judgment of Chief Justice Gibbs and I think the

judgment was concurred in by Justices Wilson, Brennan,

Deane and Dawson. · I think ;r am right in- that.	I
think rfr Justice. Wilson may have gone off - not
gone off but given his reasons.

BRENNAN J:  I do think that is entirely accurate - - -

MR ELLICOTT:  But I think there is a majority there. Pardon me

for that.	I have got a note here of it and I will
find it in a moment.	At page 666, having referred
to PETTIT V DUNKLEY:

That "an obligation, concerning the giving

of reasons, lies upon any court, including

an intermediate· court of appeal, so far as

it is necessary to enable the case properly

and sufficiently to be laid before the

higher appellate court." The decision in

that case that the failure to give reasons

was an error in law may have broken new

ground, but there was nothing new in saying

that judges are under an obligation to

give reasons where that is necessary to

enable the matter to be properly considered

on appeal.

Now, that sentence is capable of being a principle

of law and we would submit that it is a principle of

law and it ought to be so considered. But it does

not mean that it is terribly precise, but some

principles of law are not because they are dealing with

situations, a multiplicity of situations, and this

is a principle which has to deal with a multiplicity

of situations. No doubt the court, in developing

such a principle, would want to discourage litigants

from attacking judgments on this ground and that

the court would want to say that it is only in a

very clear case that we will intervene.

But at the same time we would submit that there

is a point where the court will intervene and it is
where the court concludes that the judge has not

given reasons which are necessary to enable the

matter to be properly considered on appeal and we

submit that this is such a case. Now, whether we

are right in that is a matter for Your Honours, but

we do submit that that is the germ of the principle

and, in essence, that is what was said in SOULE11EZIS'

C2T34/l/VH	58	1/3/89
Jones (2)

case. It does not mean, as His Honour Mr Justice McHugh
pointed out in that case, that there has to be a

decision given in every case but it has to be related

to individual rights and the right is clearly so when
the appellate court has to consider the matter; that

is, to consider the appeal, in the WARREN V COOMBES

type of context because there it is a full appeal

on law and fact.

(Continued on page 60)

C2T34/2/VH	59	1/3/89
Jones(2)

MR ELLICOTT (continuing):  Your Honours, the passages which

are the basis of the rule, are dealt with from

page 278 to page 281. We would respectfully

submit that both there and in the judgment of
this Court in PUBLIC TRUSTEE V OSMOND and in

a very clear passage in the judgment of

Mr Justice Asprey in PETTITT V DUNKLEY, this

matter is elevated to the point of principle.

If I could just read that short passage in PETTITT

V DUNKLEY, (1971) 1 NSWLR 376, at page 382C:

In my respectful opinion the authorities

towhich I have referred and the other decisions

which are therein mentioned establish that
where in a trial without a jury there are

real and relevant issues of fact which are

necessarily posed for judicial decision,

or where there are substantial principles

of law relevant to the determination of

the case dependent for their application

upon findings of fact in contention between

the parties, and the mere recording of a verdict for one side or the other leaves

an appellate tribunal in doubt as to how

those various factual issues or principles

have been resolved, then, in the absence

of some strong compelling reason, the case

is such that the judge's findings of fact

and his reasons are essential for the purpose
of enabling a proper understanding of the

basis upon which the verdict entered has

been reached and the judge has a duty, as

part of the exercise of his judicial office,

to state the findings and the reasons for his decision adequately for that purpose. If he decides in such a case not to do so,

he has made an error in that he has not

properly fulfilled the function which the

law calls upon him as a judicial person

to exercise and such a decision on his part

constitutes an error of law.

BRENNAN J:  Why does it follow from that that the error

of law is not to be remedied by requiring him
to do that which is his duty, namely, to state

his reasons. If, in a statement of the reasons,

it appears that he has not then done his judicial

duty of finding an essential fact, other consequences

may flow. But the proposition in PETTITT V DUNKLEY

is that if the expression of the reasons is inadequate

then the judgment is set aside.

MR ELLICOTT:  Yes.

BRENNAN J:  Why?

C2T3 5 /1 / SDL	60	1/3/89
Jones(2)

MR ELLICOTT:  Because it was not, in our submission, a judgment

arrived at in the course of exercising the judicial

function properly.

DAWSON J: But it might have been; it is just that he

did not tell us.

MR ELLICOTT:  Yes, well, in other cases they say that the

appellate court should not be left to search
around for reasons - that is, in this particular

area of law.

DAWSON J: That is covered by sending it back and asking

for the reasons.

MR ELLICOTT:	Yes, but what I am attacking - - -
DEANE J:	You would need to inquire about his health before
you did it, one would have thought
MR ELLICOTT:	I wanted to refer to that situation because

what happens if the judge has left the bench - we

will not say "died" - left the bench, in the meantime?

What do you do? Well, Your Honour might say to me,

"In that case the Court would send it back for a rehearing because there is nothing else it could do", but that would only beg the question, and

that is: can the reasons be so defective that

it is not a proper exercise of the judicial function?

(Continued on page 62)

C2T35/2/SDL	61	1/3/89
Jones(2)

MR ELLlCOTT (continuing):  ln our submission, it is not a

proper exercise of the judicial function. That is not

how, in this area, a _iudge should behave. lt is as much an error as not hearing one of the parties, or

it is as much an error as being biased.

McH.UGH J: Tliat is the more useful analogy, is not it?

MR ELLlCOTT:  We might not criticize it as much and it may

not occur as often, perhaps.

McHUGH J: 

Bias is the better analogy, is not it, the reason of apprehension of bias?

MR ELLlCOTT: 

Yes, but it is something that goes to the

very essence of the iudicial process because the
reasons are what the people expect. That is what they

want and that is what they want to attack if the
judge has not found in thelr favour, and therefore
the judgment is a bad judgment. lt is erroneous and

the presumption is that the judge has not, in our
submission -if he has the opportunity - that he
has not reasoned his way to that conclusion on

material matters -1 hasten to add, Justice Deane- but

not on peripheral matters.  Anyhow, that is our

submissions, Your Honour.  We cannot state it any

higher than that.

We would not resist the proposition that in a

given case Your Honours, or the iudges of another

appellate court, might not send it bacK for reasons.

There are instances, I think, in petty sessions cases

where that happened.	I cannot just put my finger on
them, but l think there have been such cases.	So

although in an intellectual sense we do not resist

that proposition we submit that the proper course

to follow, the appropriate course to follo~ is to
treat the judgment as defective and therefore as one

that the Court is entitled to reiect in the sense

that it directs that there be a rehearing and,

if need b~ on all matters. (Continued on page 63)

C2T36/l/HS	62	1/3/89
Jones(2)

I:1R ELLICOTT (continuing):  Now, Your Honours, there were some

aspects of Mr Tatiyakorn that I wanted to come to because

he is an interesting witness. It is not often

Your Honours have to get into these questions but

we say Mr Tatiyakorn said that both the plaintiff

and the defendant were travelling at 60 and were

three or four car lengths apart. I will not take

Your Honours to the passage but that - it is the plaintiff's witness and that is what he says. That, of course, is quite inconsistent with what the

plaintiff says becausP the plaintiff says on one

version that he, that is tb"' ,J.efendant, slm1ed down

to 15. Then Mr Tatiyakorn said the Falcon was doing

55 when the impact occurred and the plaintiff was

travelling slower. The plaintiff, of course, said

15 and 30. There is Mr Tatiyakorn - he is called

by the plaintiff. Again, I do not need to
s~op to indicate the difficulties about that

evidence which is not dealt with.

Mr Tatiyakorn initially said the Falcon had

not started to turn to the left when the impact

occurred but later said it was only at a slight

angle. He later said it was 45 degrees. This cannot
stand with the plaintiff's evidence. Again,very material
to the issues and the issues that the Full Court

was dealing with. Mr Tatiyakorn indicated on a

photograph that the impact occurred near the gutter,

yet the plaintiff who put the impact in a similar

position had said the Falcon was at an angle. That,

again, is the same question upon which I addressed

Your Honours earlier. 5. Mr Tatiyakorn said he

waited five seconds after the plaintiff before turning

into Gladstone Street and following him. He had

only travelled about 75 metres before the accident

occurred.

Mr Tatiyakorn is the plaintiff's witness, I

repeat, and called by the plaintiff. There is no

attempt anywhere to take hold of this evidence and

to resolve the differences between the ulaintiff and
his own witness.	·

(Continued on page 64)

C2T37/l/MB	63
Jones(2)

MR ELLICOTT (continuing): With respect to the trial judge,

that is something that His Honour should have

grappled with because it was so basic to the

finding of negligence on the part of the defendant.

enough to Your Honours to

So we would submit that from that point of view, probably submitted

indicate why, if Your Honours felt that Your Honours

could take the plaintiff's evidence and

Mr Tatiyakorn's and assume that that has been

accepted by His Honour~why Your Honours could take

that and come to the conclusion that in this case

Your Honours,applying the WARREN V COOMBES principle,

would conclude either that the defendant was not

negligent or alternatively that the plaintiff had
not discharged the onus, because all those matters,
we would submit, are clearly relevant to the ultimate
question of whether the defendant was negligent
or not and they needed to be resolved in order for

His Honour to come to the conclusion he did.

Can I take Your Honours to the judgment and

to demonstrate the lack - and again, I say this with great respect - of judicial care in dealing with the

facts as they have been revealed in that very short

analysis and maybe better revealed by Your Honours'

careful consideration of it off the bench. At page 112,

about a third of the way down:

When he first got onto the roadway of Gladstone

Street he was about 100 yards behind the car.

We know that the plaintiff also said it was 50 yards.

Some distance east -

et cetera.

Nearing this store the defendant moved, so

the plaintiff said, a couple of feet to the

right in the lane in which he was travelling

at about 15 kilometres per hour. (Continued on page 65)

C2T38/l/BR	64	1/3/89
Jones(2)

MR ELLICOTT (continuing):  Now, notice he says "moved a

coup 1 e of feet to the right" . Now , a coup 1 e of

feet to the right is whatever it is, no wider than
this here. lt is less but in any event, in our

submission, when you are thinking of a car travelling

along at 15 kilometres an hour which from

recollection is about 13 or 14 feet per second,

it is really not turning to the right. You would

say you were veering to the right. You would

not describe it as turning to the right.	1 just
make that point because it is almost as if

His Honour builds this up into a crescendo in his

judgment this turning to the right. 11 At that point

the plaintiff was travelling, he said, at about

30 kilometres per hour."

Your Honours know, from what 1 have already

put in front of Your Honours, that he also said

he was travellling at 60 kilometres per hour. So that is what His Honour said there, but in

fairness to His Honour, he did advert to that

evidence on page 112 in the middle:

He said that he saw no braking lights

on the defendant's vehicle nor any hand

s igna 1.

To the south of Gladstone Street opposite

the area where the defendant veered right

there was a parking lot -

Now, next paragraph:_

Having turned to the right as he did -

and then we get this word ''turned'' coming 1n -

the defendant then turned left to enter
the parking area on the northern side of
the street. Estimates of the angle at

which he approached the northern parking

area vary but 1 am satisfied that he

ap~roached it at an angle of the order

30 .

Now, 1 have dealt with that and that comes really from the defendant:

The plaintiff seeing the defendant

turn right -

Now, that statement there, that is a critical

statement:

seeing the defendant turn right, moved to his left -

that cannot stand with that passage at page 56, that

question and answer, that critical last minute question

in re-examination:

C2T39 /1 /HS	65	1/3/89
Jones(2)

MR ELLICOTT (continuing):

Do you recall being asked about passing,

making a decision to pass on the

left?---Yes.

When did you decide to pass the red Falcon

on the left?---When I noticed he was slowing

down.

Well, surely, with great respect to His Honour, that

answer should have been weighed into the balance

when he made that first statement:

Seeing the defendant turn right, moved

to his left but when the defendant crossed his path as he did when he turned left the

plaintiff was unable to avoid colliding with

the rear -

et cetera. And then it goes on:

The defendant insisted in evidence -

the third sentence:

It is common ground that he did turn slightly

to the right before veering left to the

northern parking area and this satisfies

me that the plaintiff was in fact keeping a

proper lookout.

Now, we would submit that that is a complete
non sequitur but yet that is what His Honour found
and that was the basis upon which His Honour's

judgment was attacked in part by the Federal Court.

There is just no justification. One does not flow from the other in logic. It does not follow that

because he did turn slightly to the right, that

the plaintiff was, in fact, keeping a proper

look-out.

McHUGH J: Well, it does not flow as a matter of logic but

if the plaintiff said, "I was keeping a proper

look-out' and he did see something which is common

ground that that occurred, does it not strengthen the

conclusion that the plaintiff was keeping a proper

look-out?

MR ELLICOTT:  Your Honour has added something there - - -

McHUGH J: Yes, I know that.

MR ELLICOTT:  - - - and this is the point. What are we dealing

with? I am not suggesting that this Court should be

nit-picking about a trial judge's judgment. I am

C2T40/l/SH	66	1/3/89
Jones(2)

not, of course, suggesting that and I hope I am
not putting a nit-picking submission but I do

submit that the reason His Honour has given is that

he, that is the defendant did turn slightly

to the right. He gave that as the reason as to

why the plaintiff was keeping a proper look-out.

Now, there are two things that can be said about that: not only does it not follow as a matter of

logic but, also, it does not flow from one that he

was keeping a proper look-out at all times because
what is of significance, of course, is whether he

noticed what the defendant says was there, that is,

his flashing left light and it does not follow from

that, that he would have noticed the flashing red

light. Then there is the reference to - - -

(Continued on page 68)

C2T40/2/SH 67 1/3/89

Jones(2)

DEANE J:  I do not follow that. I mean, on the defendant's

case the indicator was on before, as you put	it, 11 he veered slightly to the right 11 , and that
is the only evidence that there was an indicator
on.

MR ELLICOTT:	He said he had it on for 11 metres.
DEANE J:	Yes, which was before he veered.
MR ELLICOTT:	Yes, admittedly before he veered to the

right.

DEANE J:	The plaintiff says, 11 I noticed a slight veering
to the right and there was no indicator''. Why
does not the fact that it emerges
after he gives his evidence, that it is common ground that he veered slightly to the right,
confirm his evidence?
MR ELLICOTT:	It only confirms his evidence that he veered

slightly to the right. It does not confirm the

evidence that he was keeping a proper look-out.

Now, a proper look-out must be that he was conscious

of all the things that a vehicle up front, ahead

of him, might potentially do and one of those

things - - -

DEANE J:  I see the force of that. I was directing it

to his evidence that if there had been an indicator

on he would have seen it.	I was seeing 11 proper
look-out" in that context.

MR ELLICOTT:	Yes, and we will come back to that in a moment, Your Honour, but that is a critical part of the
Full Court's reasoning.

Then there is a reference to that 60 kilometres

as distinct from 30 kilometres - it is only twice

as much. I allow for the discrepancies which

generally attend estimates of distances. Well,

he is not talking about estimates of speed, there,
it is distances.	So he does not resolve whether
it was 60 or 30.

(Continued on page 69)

C2T41/l/SDL	68	1/3/89
Jones(2)

:tvIR ELLICOTT (continuing):  Of course, that is very important.

If he is going c::.t 60 - 15 metres - and he is supposed

to be keeping a proper look out, well, one might

conclude, if one is reviewing the facts, that he

was not keeping a proper look out.

DAWSON J:	What are we doing here, are we looking to see whether there is evidence to support the finding
which the trial judge did make or are we engaged
in some other exercise?
:tvIR ELLICOTT:	Your Honour, we are engaged, so far as my

submissions are concerned, in seeing where His Honour

either may have failed to deal with a matter of

inconsistency, in other words, not resolved

inconsistencies, where he may have misstated

material facts, where he may have drawn conclusions

which did not flow and which required analysis

before he could make a decision. I am attacking

the judgment and I am attacking it on all

bases, I suppose, and in so far as I have directed

Your Honours' attention to the evidence then some

of these findings required a resolution of those
matters before you could properly say, for instance

in this case, that the plaintiff was keeping a

proper look out, because quite clearly a very material

matter to keeping a proper look out was a decision

as to whether the plaintiff actually decided to move around the defendant while the defendant was slowing

down or whether he only decided to do that 15 metres

behind the defendant when the defendant was moving

to the right. Now, that is a critical matter.

DAWSON J:	Yes, I can understand you saying the judge did not make essential findings of fact and I can
understand you saying that there was no evidence
to support the findings of fact which the judge
made, but you seem to be going somewhere in between
that. It does not matter that the judge's reasoning
was not a model, that is just not something which
would concern the Appeal Court.

(Continued on page 70)

C2T42/l/MB	69
Jones(2)

MR ELLICOTT:  No, I am not attacking it for that reason.

DAWSON J: Or even if it was absolutely defective, it would

not matter.

MR ELLICOTT:  We would submit that if it was defective

it would matter.

DAWSON J:  Not if there was evidence to support his findings.

MR ELLICOTT: If there was, with respect, a conflict of

evidence where he had based his findings on

the plaintiff's evidence - if there were conflicts
of evidence in the plaintiff's own testimony,

then before he could properly find that - to

take an example, a proper look-out, before he

could properly find that, he would have to resolve

that conflict. Even though one could say, sitting

here in this Court, that had he accepted that

particular part of the plaintiff's evidence

and not that, there would have been evidence
upon which to base his finding.

He cannot leave it up in the air, 1n our submission, he has to make a judgment within the plaintiff's own evidence, if that is the

case, as it is here, as to the two critical

versions. If he does not do that, then either

this Court will regard his reasons as deficient

or, alternatively, wi 11 say "Wel 1, we wi 11 take

the v er s i on w h i ch i s L'X>S t favour ab 1 e t o the de fend an t . "

and, on that basis, we would submit, you will

find that either the plaintiff has not discharged

its onus or Your Honours would find preferably

DAWSON J:  Then you are really asking us to engage 1n

a rehearing - - -

MR ELLICOTT:  That is right. That it is getting back to the other question. But we do submit that there

is - I am not engaged in what I described eBrlier as

a nit-picking exercise. I am pointing to what

we submit are material errors in the reasoning

which justify one or other of the courses that

I put to the Court.

BRENNAN J: Mr Ellicott, how long do you expect the remainder

of your argument to take.

MR ELLICOTT:  I would not think more than 20 minutes to

half an hour, Your Honours.

BRENNAN J:  We will adjourn until a quarter past two.

AT 12.49 PM LUNCHEON ADJOURNMENT

C2T43 /1 /ND	70	1/3/89
Jones(2)

UPON RESUMING AT 2.17 PM

BRENNAN J: Mr Ellicott.

MR ELLICOTT:  Your Honours, I could be. wrong, but I think if

Your Honours look at PUBLIC TRUSTEE V OSMOND, I think

all of the Justices agreed with the judgment of

Sir Justice Gibbs. I do not think anything turns on

that but I said I would check it. There is a

statement in the case of WRIGHT V AUSTRALIAN

BROADCASTING COMMISSION. (1977) 1 NSWLR 697, whilst

wear~ on the law, at page 701 in the judgment of the president and around about the letter E, just

above it:

In respect of the appellant had an appeal

as of right for error of fact or law. In

such circumstances the trial judge had a

duty, in which both the litigants and the
appellate court had an interest, to reveal

his reasons, and to do so to such an extent

as would enable an appellate court to

consider and determine whether or not error

occurred in the determination in question.

It is not satisfactory that an appellate

court be left to speculate from collateral

observations as to the reasoning upon which

a critical decision is made, when the trial

judge can and ought directly to reveal it.

This had been often pointed out, but it seems

to me it is of particular importance that is

to be observed in rulings by the judge in

defamation cases in respect of the questions

reserved for the judge. Often there are

involved questions of importance, sometimes of

social or general importance -

et cetera. I only refer to that as this is a case

of fact and law and it is also, I would submit, of

some significance, that sentence which says:

It is not satisfactory that an appellate

court be left to speculate from collateral

observations as to the reasoning upon which

a critical decision is made.

McHUGH J:	But that decision throws up the whole problem in this area. That was a case where, at the close of the evidence, the trial judge directed the verdict for
the defendant and his judgment ran to 20-odd pages
of transcript and the real conclusion that he had to
make was whether it was reasonable, in the circumstances. He said it was not reasonable and he was criticized
for coming to the conclusion that it was reasonable
as the case was in the circumstances.

C2T44/l/VH	71	1/3/89
Jones (2)

MR ELLICOTT:	Yes.
McHUGHrJ:	I ::nust say, . I was the losing counsel in that

case.

MR ELLICOTT: Well, we all have to suffer these things,

Your Honour,but as time passes your memories sort

of disappear of those events.

Your Honours, just going back to the judgment,

I just wanted to take Your Honours to some

matters I	dealt with what we said was a non
sequitur in the middle of page 113.	At the foot of

the page there is a sentence about five or six lines

up:

Bearing in mind the angle at which it was travelling at that time it must have blocked

the whole of the northern quarter of the

roadway. It was generally accepted during

the course of the hearing that the roadway

was the equivalent of four lanes.

Although he says there:

Bearing in mind the angle at which it

was travelling at that time it must have

blocked the whole of the northern quarter

of the roadway -

having said that it was:

at an angle of the order of 30° _

on the previous page, that does not resolve the issue

which existed because of th~ plaintiff and

his witness and, indeed, the defendant, having

taken as the point of impact not, in effect, the middle

of the left-hand roadway but the edge of the

left-hand lane in the left-hand roadway. So that was

not resolved.	Then, at the top of page 114 he says:
I am satisfied that the defendant did not
apply his brakes at or immediately before the
point where he turned to the right.

And it shows that His Honour was cognizant of those

matters - I will not read the whole page	but he
concludes, about 10 lines up:

It seems plain on the evidence generally that the defendant travelled the last 50 metres or so before the collision without slowing down.

Now, he says "without slowing down", but really what he

means is "having slowed down". He was only going 15 kilometres

per hour and he did not need any brake lights to indicate that

he was slowing down within a reasonable distance.

C2T45/l/JH	72	1/3/89
Jones(2)

MR ELLICOTT (continuing): Indeed, so far as turning is concerned,

just as a matter of looking at that regulation, a

person who is travelling at 15 kilometres an hour

and, as the defendant said, gives a signal of

turning to the left, in terms of time,

I think one can calculate it, is giving as much

notice as a person who gives such an indication over

the prescribed distance of 30 metres travelling at

60 kilometres per hour. It is just a matter of

calculation. Though distance-wise the defendant

says he only gave it for 11 metres, tim~-wise,

if you work it out, he is giving it for very much

the same period. But so far as braking is concerned,

that ceases to have any significance in the case

because for 50 metres he slowed down.

Over the page he says - I should read the portion at the bottom:

As I have already said, I accept that the

plaintiff was keeping a proper lookout and

it would have been impossible in the

circumstances for him to have failed to

see at the distance he was travelling

behind the defendant a left hand indicator

in operation.

Now, that is a critical step in the judgment, and

going back to the middle of page 113 where it was

submitted by us that there was a non sequitur when

His Honour said:

It is coilllilon ground that he did turn

slightly to the right before veering left

and this satisfies me that the plaintiff

was in fact keeping a proper lookout.

If his reasoning,as it is quite apparent it was,

for keeping a proper lookout was based on that, and

we say that was a non sequitur, it is certainly a

non sequitur when you come to the passage at the

bottom of 114 and over on to 115. (Continued on page 74)

C2T46/l/BR	73	1/3/89
Jones(2)

MR ELLICOTT (continuing):  He is not just finding in general

terms that he is keeping a proper look-out but he

is finding it because of what he had said at the

middle of.page 113. So that, we submit, is a clear

case where His Honour has failed to deal with the

evidence and to provide reasoning which is justifiable,

that is to say, logical. Now, he then goes on:

Accepting the plaintiff as I do -

now, he does not say - and this to some degree does

bring one to the passage that I read from WRIGHT's

case - the Court should not be left to consider

whether he accepts the plaintiff on the balance of

probabilities or because of credit or demeanour.

He does not say in this judgment why he accepts the

plaintiff, he just says:

Accepting the plaintiff as I do.

Now, this Court and the· federal court should not have

been left in that pos~tion. He says:

I am satisfied that the defendant was

negligent in turning as he did.	When he
turned to the right -

now, Your Honours will notice he has got him now

turning to the right. He was not actually turning

to the right, he was veering to the right by two feet -

he gave no signal and would inevitably have

led a person following behind as the plaintiff

was to expect that he would continue the

turn.

Now, the plaintiff was travelling at 60 kilometres

per hour. He was no more than two car lengths behind

this vehicle and he is supposed to - according to

ordinary responsibilities - travel a distance that

enables him to pull up.

(Continued on page 75)

C2T47/l/MB	74
Jones(2)
MR ELLICOTT (continuing):	But he is no more than two car

lengths and on one version of his evidence he is

only one car length, that is, five metres, 15 feet

and His Honour comes to that conclusion which, we

would submit, is just not a reasonable inference

to draw, that it:

Would inevitably have led a person following

behind as the plaintiff was to expect that

he would continue the turn. His immediate

veering to the left placed the plaintiff in

an impossible position for he could not then

avoid the collision.

Well, it is our submission, based on what we have

put to Your Honours, that the proper conclusion for

His Honour to draw was either that the plaintiff had

put himself in that position, which was an impossible
position and it was his own fault, or, alternatively,

His Honour could not be satisfied that the plaintiff

had discharged the onus.

Although I think that the plaintiff was

travelling close to the defendant's vehicle

in front of him, I do not think he was
negligent in doing this at least to the point

where the defendant turned to the right.

Well, again, that is a matter, we submit, where

His Honour had not, in his reasoning, dealt with critical matters that we have referred to. For

instance, if I could just quickly refer to them

again: "\'hen did the plaintiff decide to overtake

on the left and why did he move to overtake on the

left?" Now, those were matters where there was

inconsistent evidence from the plaintiff. I do not

want to go back over them but Your Honours could

see, we would submit with respect, that those are
critical to the ultimate judgment to determine that

because, obviously, if he made his decision before

slowing down, that is, 80 metres before the point

of collision, well, he could hardly have done it because the plaintiff was moving to the right by

two feet and then, later, turns to the left.

'Where was the defendant's vehicle at the time of

collision?' That is a critical matter and we have

pointed how the plaintiff and his witness seem to
agree with the defendant on that matter and put it

close to the gutter.

C2T48/l/SH	75	1/3/89
Jones(2)

MR ELLICOTT (continuing):  The other matter that we adverted to:

the plaintiff's speed immediately prior to braking

and the distances , at one stage, at page 31, he put it at one car length. So you have got a plaintiff

who is saying it is one car length or, on another

version, two car lengths, behind this vehicle when

it moves to the left; in other words, when it makes

this unexpected turn. Well, one might ask, why was

not the plaintiff at that stage in jeopardy in a

situation travelling at 60 kilometres per hour,

why was he not in jeopardy as a result of his own

decision and not that of the defentlant's, because

the defendant had been slowed down and had been veering

to the right. So all those matters, we would submit,

are critical and they are matters that His Honour left

unresolved.

Now, could I take Your Honours to the submission

number five which deals with the federal court's

judgment? Could I just read this sentence at the

top of page 123 from the judgment of the Full Court?

Their Honours say:

Careful scrutiny of the trial judge's reasons
for judgment does not clearly reveal his
findings of fact in relation to the circumstances

of the subject accident.

Now, that is a general sentence and I put that in front

of Your Honours specifically because there is a lot to

be said for the view that, one would presume,

Their Honours considered the whole of the evidence

and, indeed, if Your Honours needed it, I can pass

up the appellants submissions, and they drew attention to the

whole of the evidence. What Their Honours have then

gone on to do is to give what they considered some

examples. In a sense, perhaps their minds were not

directed to this question of principle that arises

out of SOULEMEZIS's case and the like; Their Honours

were just engaged in what I might shortly describe

as a WARREN V COOMBES exercise,that in their judgment

they felt the better course was not to form a view

themselves but to send it back for rehearing.

So that, in considering their judgment, we would

submit that one does not stop at the instances that

they gave and, indeed, if this Court disagreed with

them it would still leave open - and indeed, we would

submit, necessary - for this Court to look at the

whole of the evidence itself and form a view as to
whether the judgment below, the judgment of the.. trial judge was one that ought to stand. Now, in five, just to

take Your Honours through it, because I think most of this I will already have addressed Your Honours

on - the position of the defendant's vehicle on the

roadway either when he moved to the right or when

he commenced to make his left turn. The only finding

Your Honours will find was at the point of impact, which is at 113 point 7. · There was no finding as to the

C2T49/l/VH	76	1/3/89
Jones (2)

vehicle's position before that. As will appear

subsequently - and I have already dealt with this -

the plaintiff's own evidence is internally consistent on this

point and this was not addressed by His Honour. His evidence is also inconsistent with his own witness, Tatiyakorn. Merely stating that he accepts

the plaintiff does not indicate a finding of fact

on this matter.

We would submit, for the reasons we have

already given, that that is so. His Honour has not

indicated that he accepts any particular version

of the plaintiff and to say he accepts the plaintiff

leaves this Court and, indeed, any appellate court,

still wondering which version and therefore what he

accepts about the plaintiff. He gave no reason for

preferring the plaintiff's evidence to the defendant's

and that was criticized at page 124 where Their Honours

said:

As counsel for the defendant pointed out

on the hearing of the appeal to this court,

His Honour did not deal with the defendant's evidence denying that he was travelling in

the lane closest to the imaginary centre

line and his explanation about his answer

by way of sketch in the interrogatory to the

effect that the sketch was not in scale and

did not accurately depict his position on

the roadway at the relevant time.

(Continued on page 78)

C2T49/l/VH	77	1/3/89
Jones(2)

MR ELLICOTT (continuing):

The trial judge made no finding of fact

about the position of the defendant's

vehicle on the roadway either when he

veered to the right or when he connnenced
to make his left turn. In our view it
was critical to the proper determination
of liability in the action that a finding
of fact be made.

Then, Your Honours, we deal with the other question, whether a left-hand indicator was operated before

turning towards the car-park. The judge accepted the

plaintiff's version and found the defendant gave no

signal. That I have already read to Your Honours.

However, his reasons for that were correctly

criticized His Honour's view was based on a

conclusion previously expressed that the plaintiff

was "ke!eping a proper lookout" and I have taken

Your Honour's to that and I do not think I need to

take Your Honours again to that matter.

This conclusion is a logical non sequitur,

as the Federal Court pointed out - and if I could

just remind Your Honours of that passage at the foot

of page 125 and the top of page 126. Their Honours

say:

If those passages in the trial judge's

reasons amount to a finding of fact that the

defendant did not have his left indicator

on when he turned left, we think it is a very

obscure finding.

McHUGH J:  Mr Ellicott, Their Honours did not refer to what might

be regarded as the most important passage of the lot

and that is the passage on 115. It starts, "Accepting

the plaintiff as I do". Their Honours do not refer

to that.

MR ELLICOTT:  No, but what Their Honours found difficult about

it was the reasoning. Your Honours, accepting the

plaintiff as he did, one goes back to the middle of

page 113 and that is where the decision is made that

the plaintiff was keeping a proper look:...out on what

we say is a non sequitur. Going to the foot of page

114 he uses that as his reason for saying that it

would have been impossible for him not to see at the
way he did it was by a logical process which, we submit, does not add up. It is that reasoning, and

distance he was travelling a left-hand indicator.

really it is - on one view it is what the Full Court

was doing. It was assessing the evidence for the

purpose of determining whether it would come to a

similar conclusion. It was seeing whether the evidence

C2T50/l/BR	78	1/3/89
Jones(2)

stacked up so as to decide ultimately whether or not

you could satisfactorily conclude that the defendant

did not have his left indicator on. So they go on:

Although the trial judge found that the

plaintiff did observe the defendant turn

slightly to his ..... left, we have difficulty

with the proposition that it necessarily

follows from that finding that the plaintiff

was keeping a proper lookout. We fail to see

why any more can be taken from his Honour's

acceptance of this observation of the plaintiff

than that it established that the plaintiff

saw the defendant's vehicle veer to the

right. The matter is important because it

is on the basis of his Honour's conclusion

in this respect that he drew the subsequent

conclusion that it would have been impossible

for the plaintiff to have failed to see, at
the distance he was travelling behind the

defendant, a lefthand indicator.

(Continued on page 80)

C2T50/2/BR	79	1/3/89
Jones(2)

MR ELLICOTT (continuing):  I would submit it is fairly apparent

that the Full Court understood that His Honour was,

in effect, finding that the plaintiff was saying,
and accepted the plaintiff in saying that the left-hand
indicator was not on, but what they attacked was his

process of reasoning. Whether one concludes from that that they were involved in a WARREN V COOMBES exercise, as we would submit they were, or whether they were

attacking the reasons based on the judgments in

cases such as SOULEMEZIS may be a matter of debate.

But whichever it was Their Honours were finding the decision below unsatisfactory and they were really coming to a conclusion that so far as they were

concerned it should not stand.

We further say the fact that the plaintiff did

not see the indicator does not mean it was not used

and I have already made the point that the judge

made no cormnents on demeanour or credit. He apparently

decided it on what he considered was the balance

of probabilities but an appellate court, of course,

is in as good a position. What he says, I am reminded,

is only as to - if I can just go back again because

one can easily miss this. At the foot of page 114:

it would have been impossible in the

circumstances for him to have failed to see

at the distance he was travelling behind

the defendant a left hand indicator in

operation.

The statement about a right-hand signal is an

inference that he does not support at all.	Now,
Your Honours, in a recent decision,

BRAUND V HENNING, 62 ALJR 433, and particular at

page 436, Your Honours dealt with a matter not

dissimilar from this in the sense that it, as

Your Honours will recall, involves cars following

one another and a decision that the car that was

following was not negligent. That was the decision

of the trial judge. The Full Court of Queensland

upset that decision and then Your Honours decided

to deal with the matter yourselves and apportion

blame. Your Honours saw considerable merit in

the criticisms that were made by the Full Court

of Queensland. But one thing that Your Honours

did say which, we would submit, is in accord with common

sense and what is understood to be the position,

that is, that Your Honours said:

While we recognise that the driver of a following vehicle which collides with the vehicle which is proceeding ahead of it is usually held primarily liable for the consequences of the collision, we find that the circumstances of the present case .....

dictate a different result.

CZTSl/1/MB	80
Jones(2)

Now, in that sentence Your Honours recogni?.e the

coTIID1on-sense rule and what people ordinarily

understand, that is to say, that they should

keep a safe distance from a car that is ahead

of them.

(Continued on page 82)

C2T51/2/MB 81 MR ELLICOTT, QC 1/3/89

Jones	( 2)
MR ELLICOTT (continuing):	So that given exigencies at the

moment, whether it may a child running across the

road, or an animal, or some sudden decision by the

driver, the person behind can pull up in time and

avoid any collision. Now, that is important here.

But it is important in two aspects: one, I have

already stressed, namely that the plaintiff clearly

was so close that he could not pull up and already
had decided he was going to pass on the left anyhow;

but also it does indicate, we would submit, an

added reason in a case such as this why the judge

should be so careful to point out why the ordinary

rule should not apply. That is to say, that he
should make his findings of fact as precisely as the

circumstances warrant and express his reasons in

sufficient detail to enable it to be determined by a

court on appeal why that prima facie liability

should not attach and we submit that that is another

way of testing what His Honour has said.

Now, BRAUND V HENNING, of course, throws up

another possibility and that is that Your Honours

could, as Your Honours did there, deal with this

matter yourselves. Three courses seem to have been

canvassed. One is to send it back for retrRi1., for

it yourselves. We would submit that in this case, if Your Honours accept the submissions that the

rehearing; the other is to send it back to the with

respondents have put on behalf of the defendant, this

Court should, applying the principles in WARREN V COOMBES,

come to its own decision based on the unsatisfactory

nature of the plaintiff's evidence, accepting for that

purpose the judge's finding; if not, then Your Honours
should send it back for rehearing; if not, then

Your Honours should see it as a case of contributory

negligence, if that is the view that Your Honours

formed and in which case Your Honours should apportion.

Now, in approaching the question on the basis of

WARREN V COOMBES, it may be helpful if I just in

conclusion surmnarize these aspects from the point of

view of the defendant.

BRENNAN J:  In those lists of proposals that you just addressed,

Mr Ellicott, you did not mention the question of dismissing the appeal.

MR ELLICOTT:  No, I did not, Your Honour. That is an alternative

and it is one I started off with, I thought perhaps

rather rudely, but I would not abandon that for one

moment.

BRENNAN J:	It is one you have not abandoned?
MR ELLICOTT:	No. Your Honour. That is not abandoned - it is for

Your Horrour~, nf course, 1)ut Your Honours may

~eel if a matter did not, after

C2T52/l/JH	82	1/3/89
Jones(2)

you have looked at it, involve the sort of

consideration that appeals to this Court now require,

then the proper course is simply to revoke leave or dismiss the appeal because on any view it cannot be assumed that the Full Court of the Federal Court has

in any way erred in law. It has simply done its job

and it has come to a conclusion. A conclusion which

it would be entitled to do without any error of law of

the nature that would cause an appeal to this Court

or justify an appeal to this Court.

.Just from the point of view of the defendant's case, I just make these points. On the crucial

aspect of location - and I am really now just putting

together some matters that I have already addressed -
the defendant's evidence - that is the location at

the time - the location in this sense; first of all,

where he was travelling - he said it was in the left

lane close to the gutter - and where the impact

occurred - that evidence of the defendant is

supported by the photographs - and I have referred

Your Honours to those - so that part of the defendant's

evidence is supported by the plaintiff and Tatiyakorn.

(Continued on page 84)

C2T52/2/JH	83	1/3/89
Jones(2)

MR ELLICOTT (continuing):  Also, it would be supported by

the plaintiff's own evidence, although it is

different to the defendant's, of a 15 degrees

angle because he had a 15 degrees angle. It might

be thought to be more likely to be an angle which

one would be moving at if the car was in the close

left-hand lane. The defendant's evidence as to

speed is agreed, that is, 15 kilometres an hour.

There is no debate - in other words, the plaintiff

supports the version that the defendant moved a

small distance to the right. The defendant does

not deny that. That is another way of putting it but the plaintiff agrees with the defendant. So, there is common ground and the only issue on which

the defendant is left unsupported is the issue as

to the indicator~

Now, I have said enough as to that to indicate

why we would submit that His Honour's finding was

not a satisfactory one with regard to that, based on

the plaintiff's evidence and particularly having

regard to the inconsistencies within the plaintiff's

evidence. So, Your Honours, we would, in the order

of dismissing the appeal and in the other order that

I put, the other options that are open to Your Honours,I

ask that Your Honours deal with this appeal.

Could I just in conclusion hand up what I hope

will be a helpful analysis of the evidence which

Your Honours may or may not wish to take into account in considering Your Honours' judgment but it does deal

with the plaintiff's evidence and the address at various

pages in the appeal book. May it please the Court.

BRENNAN J:  Thank you, Mr Ellicott. Mr Sully.

MR SULLY:  We would not propose, if Your Honours please, to

attempt the exercise of going back in detail through

what was described as annexure A which is, we

apprehend, the same material as is presented in

a~. somewhat different light in the document which

has just come to us, as to Your Honours,for the
reason that to do that would be, in our submission,
to make this fundamental mistake. The question is

not whether, by a process of raking back and forth

over line after line of the transcript, one can

conclude that His Honour might have taken a different

view of this or that piece of the evidence or that
minds might differ as to a conclusion to be drawn

about this or that aspect of the matter.
What has to be asked relevantly to that aspect of the respondent's submissions is whether the findings

that are set out in His Honour's judgments at the pages

to which we have referred in our submissions in-chief

C2T53/l/SH	84	1/3/89
Jones(2)

and which comprise that part of His Honour's

judgment reported up to page 115, are supportable

on a reasonable view of the evidence, not necessarily

the only view of the evidence, but whether in fact

there is evidence there to support them and, in the

end, what His Honour has said comes down to a few

simple propositions, most of which have been put to
the respondent in the course of the respondent's

submissions, His Honour obviously accepts what the

plaintiff said in the answer to interrogatories

which the defendant tendered against the plaintiff,

that is to say, that during the last 50 metres up
to the point of impact the defendant's vehicle was

seen by the plaintiff to travel at a speed which did

not vary and which was at about 15 kilometres an hour.

His Honour obviously says, "If that is right,

and I am induced to accept it not least of all because the defendant himself has put it in and relied upon it,

a matter which I find to be significant, then it is

open to me to take the following view: first, the

plaintiff says he says he was keeping 8 sufficiently

good look-out to see that the defendant moved to the

right. So he did. There is no dispute about it.

Secondly, the plaintiff says he was keeping a

sufficiently good look-out to see that the defendant

did not give any right-hand moving signal before he

moved to the right" and that is correct. There is

no dispute about it.

The plaintiff says his look-out was good enough

to see that, immediately after moving to the right,

the plaintiff moved in sharply to the left and there

is no dispute about that. The only thing about which

there is a dispute is whether, when the plaintiff so

moved to the left, his indicator was on.

(Continued on page 86)

C2T53/2/SH	85	1/3/89
Jones(2)

MR SULLY (continuing):  I resolve that dispute by

reasoning in this way: if the plaintiff's

look-out was good enough to encompass all those

other things why should 1 not find on the

probabilities that he is to be accepted as having

been sufficiently acute in his look-out when he

says that there was no indicator showing? Now,

we put again, with great respect, it is not to the

point to say that others might have reasoned

differently. If there is material there, as there

plainly was on any view of this evidence, to support

that simply process of reasoning, then the substance

of His Honour's judgment as to where the defendant's

vehicle was and what it did and whether or not it had

an indicator on is clearly supportable by the

evidence before him and, in the end, that simple

proposition it seems to us, with respect, meets
pretty well the whole of the toing and froing

through the fine detail of the transcript which

has been the substance of the respondent's

submissions.

Now, if that is true and if, as Your Honours have said, the judgment of Mr Justice Kelly, although

not being a model,	1 think His Honour the presiding
judge said,	or not in any other sense meeting

some ideal sufficiently indicates that His Honour

addressed questions of that kind and did it in
a reasoned way, then that is an end to the matter
and, in our submission, the whole of what is put

in that kind of detailed analysis of the evidence

can be met by a proposition as simple as that.

As to whether or not the Court ought to

consider dismissing the appeal for reasons that

my learned friend canvassed a few moments ago

we would simply put this:  for the reasons that

we put this morning and will not, of course,

presume to repeat, on any view of the way in which

the Full Court approached this matter it did not

approach it correctly and that ought to be set

to rights and to do that by whatever means -

something to which we will come in a moment - at

least requires that the appeal not be dismissed but that some proper correction be administered to what went wrong, as we persist in putting to

Your Honours something very clearly did go wrong

in the way in which the Full Court approached the

matter.

As to whether or not Your Honours should embark

upon some kind of review afresh of the facts and
the inferences to be drawn by Your Honours from
it, we would simply put two things: the first

is that our first position would be the one that we

put in-chief this morning.

C2T54/l/HS	86	1/3/89
Jones(2)

MR SULLY (continuing):  The Full Court was plainly wrong in the

way in which it has gone about it; it is wrong in its
perceptions of what Mr Justice Kelly's duty was; it

is wrong in its perceptions of what Mr Justice Kelly

decided or did not decide. Mr Justice Kelly's

decision, in so far as one can look at it in a

critical, analytical way from what His Honour said,

is capable of being understood rationally and supported

properly on the eivdence and that ought to be an end

of the matter. His Honour's judgment, it would follow,

in our submission, ought not to have been disturbed

and ought to be restored. That, I repeat, is our

first position. If, for whatever reason that does

not find favour with the Court, so that it becomes

necessary to choose, as we apprehend it then would,

between sending the matter back for a retrial, or

worse, sending it back to the Full Court and perhaps

then, depending on what happened, back for a retrial

and having Your Honours determine the matter in some

way finally here, in so far as we may properly say so,

we would opt for the latter of those two alternatives

because the interest of the present appellant, if driven to that position, is most certainly not to

have to wait another 12 months or whatever it would

be while the matter goes back and forth again up and

down the judicial hierarchy.

But, in the end, in our respectful submission,

none of the criticisms that were made of

Mr Justice Kelly's judgment in this comparatively

simple and straightforward case, will stand analysis
because there was evidence there which was reasonably

capable of supporting what His Honour said and to say

simply that he might have said it better or in a

different, or more expansive order simply does not

touch the point at issue. In the end, those are the

essential things that we can reasonably put in reply.

If Your Honours please.

BRENNAN J:  Thank you, Mr Sully. The Court will consider its

decision in this matter, and will adjourn until

10.15 am tomorrow morning.

AT 2.56 PM THE MATTER WAS ADJOURNED SINE DIE

C2T55/l/VH	87	1/3/89
Jones (2)