Jones v Hyde

[1988] HCATrans 120

IN THE HIGH COURT OF AUSTRALIA

Registry No Cl3 of 1987

B e t w e e n -

DERRICK ALAN JONES

Applicant

and

STEPHEN ROBERT HYDE

Respondent

Application for special leave to

§1.ppeal

MASON CJ DAWSON J TOOHEY J

Jones

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 JUNE 1988, AT 12.30 PM

Copyright in the High Court of Australia

SlT 8 / 1/PLC 1 10/6/88

MR B.T. SULLY, QC: May it please the Court, I appear with

MR J. PURNELL, for the applicant. (instructed by

Liu & Robb)

MR A.S. MORRISON:  If Your Honours please, I appear for the

respondent. (instructed by Crossin Power Haslem)

MASON CJ:  Mr Sully.

MR SULLY:	May it please the Court, we have prepared a very short note of what we hope to argue to Your Honours.	May we
hand up four copies of it?

MASON CJ: Yes. What is the meaning of the second sentence in

paragraph 2.4 of your outline of submissions, Mr Sully?

MR SULLY: This, if Your Honours please: that the situation in

the Supreme Court of the Australian Capital Territory has

some features which, in our submission, might properly be

brought to the attention of Your Honours. And the features
are these: the lists of the court in the Capital Territory

are, of course, always full and the question of the - - -

MASON CJ: That is not a special feature of court work in the

ACT.

MR SULLY:  Unhappily it is not but, of course, Your Honour, there

tends to go with it the accumulation of reserve judgments

which is a problem or has been, at any rate, a problem in

the Capital Territory. The point that we are seeking to

make in that part of the outline is simply this: what

Mr Justice Kelly did in the present case which is, when

all is said and done, a fairly straightforward factual

situation, ought to receive every proper encouragement,

that is to say, a simple, practical extempore judgment

ought to be encouraged as a means of dealing with matters

of that kind.

MASON CJ:  But we cannot exercise our appellate jurisdiction on

that footing, can we? That notwithstanding that we might

consider that the judgment, if written and considered,

was an appropriate vehicle for the grant of special leave

to appeal because it is extempore, we will hot do so.

MR SULLY:  No, the point is this: what the Full Court has done

in this particular case, if this Court is not prepared to

bring it up and correct it, is apt to have the result, not

only in the Capital Territory, of course, but in any other

court of trial where judgments of the Full Court of the Federal Court have at least some substantial persuasive authority to discourage the giving of extempore judgments

in simple factual cases because what the Full Court has

done in the present case, as we would hope to persuade

Your Honours, is to look at the extempore judgment of the

trial judge,not with any attention at all, with respect

to Their Honours, let alone any properly critical attention

to the principles such as they are to be found in the

State Reports as to the way in which that ought to be done

by the intermediate Court of Appeal, and the difficulty is

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that unless this Court corrects that approach before it

becomes set in concrete as a precedent, then there is apt
to be, as the fourth point puts, some not inconsiderable

mischief caused.

TOOHEY J:  Mr Sully, when you describe the judgment as extempore,

what precisely do you mean? I ask you that because the

judgment of the Full Court begins with a reference to the

action having been -

heard on 1 December 1986 and judgment delivered

the next day.

Do you mean the judgment was delivered orally?

MR SULLY:  Yes, Your Honour, without reserve. The matter was,

in fact, heard on the 1st. The hearing	continued into
the second day and His Honour then gave	judgment on
2 December.

TOOHEY J:  I see. So, we are to read that sentence as meaning

not that the action was heard and concluded on 1 December

1986 but that the action, in effect, began that day,

continued on to 2 December and judgment was delivered

irmnediately addresses concluded?

MR SULLY:  Yes, that is so, Your Honour, it went over into

that day.

MASON CJ: Well, I think you must have stronger grounds to

support this application and perhaps you might turn to

them.

MR SULLY:  Yes, Your Honour. Your Honours, the judgment of the

Full Court itself has about it an aspect of confusion

to which we refer in the note 2.1 in the outline. Put

simply, if Your Honours please, there was an application

foreshadowed at the end of the argument before the Full

Court for a costs order under the FEDERAL PROCEEDINGS AND

COSTS ACT, that is to say, there was an application that

if there should be a successful outcome to the appeal from

the appellant's point of view on a eround of law there

should be an order protecting the respondent, the present

applicant, in the matter of costs, and it requires a

successful appeal on a point of law for such an application

to be available to an unsuccessful respondent.

What the Full Court - well, at least Mr Justice Sheppard,

in particular, in the Full Court, said in response to that application and to the rather desultory argument that took

place in relation to it was that there was no power to

make such an order because the appeal had not succeeded on

a point of law at all, that it was what His Honour called

"a factual appeal" and that what everybody should be looking

at was WARREN V COOMBES as an indicator of the kind of

consideration which had caused the appeal to succeed.

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When one comes to look at what the Full Court actually

say in their reasons that, with great respect, is manifestly

not so. If Your Honours will return to page 14 of the

application book, Your Honours will see that at about

point 2 on that page, after having very briefly, indeed,

looked at the relevant background and statutory provisions,

the Full Court says simply:

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.

And although Their Honours go on to say something more,

that remains the pivot upon which, in the end, this judgment

turns.	We take it to mean for, with great respect to
Their Honours,	it is rather elliptical in its expression,

that what they were trying to say was that in Their Honours'

view Mr Justice Kelly did not identify the issues for trial

proper to the facts before His Honour and decide each of

the issues. Now, if that is a correct understanding of

the consideration upon which this appeal turned in the

Full Court, and we submit it is, then there is nothing about

that that involves a successful factual appeal, whatever

that means, that is a straight appeal on a question of law.

So, there is that element of confusion, in our respectful

submission, in the judgment of the Full Court before one

goes any further into the detail of what fell from

Their Honours. That confusion, might we suggest to

Your Honours, is not at all dispelled by the way in which

Their Honours conclude the unitary judgment of the

Full Court, and Your Honours will see the way in which

that is done at the very foot of page 17 of the

application book. Their Honours say:

We have carefully considered what course

this Court should take in the circumstances.

They then go on to recite section 27 of the FEDERAL COURT

ACT and, in the very next sentence, to note correctly,

with respect to Their Honours, that part of section 28

of the same Act which prescribes for them a power to

allow an appeal: 

in whole or in part and remit the proceedings~

and so forth for a new trial. But one is at a loss, with

respect, to understand what function section 27 is

supposed to fulfil or the reference to section 27 is
supposed to fulfil in that context because this was not a

matter in which there was any application for leave to

adduce fresh evidence, as can certainly be done under

section 27 nor, indeed, was it in any real sense a

WARREN V COOMBES situation, that is to say, one in which

the .Full Court took up defined findings of fact by the

primary judge but reasoned to a different inference properly

to be drawn from those primary findings of fact. When one

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comes down to it what the Full Court seemed to be saying

consistently throughout - a fairly short, not to say,

peremptory judgment, with respect, to Their Honours -

is simply what they said at page 14, that in the end

they did not think that His Honour the learned trial judge

decided, at least, the two questions which were before

him as a fundamental part of the issues for trial.

Now, if Your Honours please, and if we may take

Your Honours very briefly to the point that we take up

in 2.2 and note a little more fully across the page,

there were two questions which seemed to be of concern

to the Full Court. The factual situation, might we tell

Your Honours, is perfectly simple. The defendant was

driving a motor car in a particular direction on a public

street. The plaintiff was driving a motor cycle in the

same direction on the same street behind, although not

behind and in line with, as it would seem, the defendant.

The defendant made a turn of the vehicle to his right - no controversy about that, everybody agreed that it was so - did not show any signal or give any other indication

that he was going to do it - no controversy about that -

and then veered back to his left, as it would seem, to

move into a car-parking lot on that side of the street

and the collision occurred.

The two questions which the Full Court thought arose

in those circumstances were these: first, where was the

defendant's vehicle on the roadway when it made the first
of those two consecutive movements? Undoubtedly, as the

Full Court points out there was an issue for trial and

an issue, indeed, at trial about that. The defendant said

that he had been travelling, relevantly for present

purposes at any rate, in the lane closest to the left-hand

side of the road. The plaintiff said, 11Not so, in the lane

closest to the centre of the road''. The plaintiff's case

depended upon, firstly, his direct evidence to that effect;

secondly, some evidence that was, broadly speaking,

corroborative of him from an independent witness who had

been following in his turn behind the plaintiff; thirdly,

upon the contents of an interrogatory or, at least, an

by the plaintiff to the defendant. That interrogatory	answer to an interrogatory which had been administered
had invited the defendant to mark on a sketch attached for the purpose his position on the roadway before he made
the right-hand turn,and the way in which he had done it suggested to - at least, was capable of suggesting to a
person looking at the answer and reading the notations on the sketch that what the plaintiff had said was, indeed, the fact, that the defendant had been in the lane closest to the centre of the road.

At trial, the defendant's case was, his own direct

evidence, that he had been in the left-hand lane and, as

it were, a plea of confession and avoidance about the

interrogatory:  yes, he had drawn the sketch; it gave-a

mistaken impression because it was not drawn to scale.

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Now, that was the clash on that particular question. The

Full Court say of the learned trial judge, at pages 14 and

15, that he did not really decide that at all. There is:

a substantial issue -

they say, at the foot of page 14 -

between the parties about the defendant's

position on the roadway prior to veering

slightly to the right and then turning left

..... In dealing with that evidence the

trial judge traversed the defendant's evidence

that he was travelling on the left-hand side

of the road close to the gutter. His Honour

went on to say, however, that in answer to

an interrogatory ..... the defendant had

indicated by a sketch that his vehicle was

in fact very close to the centre of the road

before turning to the right.

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 -

and so forth. "In our view, it was critical"- about

point 7, Your Honours, on page 15:

it was critical to the proper determination

of liability in the action that a finding of

fact be made on this issue.

If one goes back, as we invite Your Honours to do,

to page 8 of the application book at about point 5 -

indeed, may we ask Your Honours to pick it up at about

point 2 which, perhaps, gives a fairer context to the

particular matter that fell from the trial judge:

Accepting the plaintiff as I do -

might we just observe, parenthetically, a matter as to which

the Full Court do not say anything -

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

had led a person following behind as the

plaintiff was to expect that he would continue

the turn.

And, again, may we interpose parenthetically, there is no

dispute-that both to the left and to the right of the point

on the roadway at which the plaintiff, wherever he was,

began - the right and left-hand turn - there was a parking

lot, one on each side of the road. So, that is the context

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in which one understands what His Honour is saying

saying:

would inevitably have led a person following

behind as the plaintiff was to expect that he

would continue the turn. His irmnediate veering

to the left placed the plaintiff in an impossible

position for he could not then avoid the

collision.

Then His Honour goes on, as Your Honours see:

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 safety. 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 so forth. Now, with great respect, a reasonable

reading of the whole of that in the context in which it

appears is, in our respectful submission, perfectly clear

and straightforward. What His Honour is saying is,

"Yes, there is a dispute. I accept the plaintiff. I

see what the plaintiff says is bolstered by the

interrogatory.	I don't accept the exculpatory explanation
of the defendant which I note.	I think the defendant

was negligent." Now, how one can say, with respect, that

that does not amount to a finding by His Honour on that

particular issue it is, in our submission, difficult - to	strive for a neutral word - to see. And that is all that	can be put on the very scanty judgments in relation to
that question.

If one looks at the second question, that is to say,

did the defendant give an indication that he was intending

to turn, again, the disputed facts were perfectly simple.

There is no question, as I have reminded Your Honours,

that the defendant did move right with no signal and then

veer left. He, of course, said, "When I veered left

I did put on the signal." The plaintiff said, "No, there was not such a signal." The independent witness travelling

behind gave some support to that view. Of that aspect of

the conduct of the trial and at pages 15 point 8 and

irmnediately following, the Full Court approached the matter

in this fashion. They say:

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Even more fundamental to the determination

of the question of liability was a finding as to

whether the defendant gave the appropriate

left-hand indicator .....

It was submitted on behalf of the appellant

that whilst the learned trial judge accepted the evidence of the plaintiff that he saw no braking

lights on the defendant's vehicle, nor any hand

signal and found as a fact that the defendant

did not apply his brakes at or innnediately before

the point where he turned right, he made no finding

whatsoever that he had his left indicator on when

he turned left.

In answer to that submission it was submitted

on behalf of the respondent -

that is the applicant before Your Honours -

that the trial judge had made a finding that the

defendant did not give the appropriate left-hand

indicator signal -

and there is then quoted two passages in counterpoint,

as it were, from the learned trial judge's judgment.

His Honour had said:

"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

cotmnon 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."

And later where his Honour said:

"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."

The Full Court then goes on to say this:

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.

A very obscure findinr.

Although the trial judge found that the plaintiff

did observe the defendant turn slightly to his

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right before veering left, we have difficulty

who have not, of course, seen the witnesses -

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 he 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 left-hand indicator.

Furthermore, although his Honour referred

to the fact that the defendant insisted in

evidence that when he turned left he had his

left indicator on, he made no specific finding

in relation to that evidence. The passages relied

upon by the plainitff may obliquely -

may obliquely -

amount to a finding of fact that the defendant

did not have his left indicator on when he
turned left. But we are of the opinion that
the resolution of that issue was not satisfactory

in the circumstances of the trial.

MASON CJ: Well, it is clear enough, when you look at pages 7

and 8, the judge did make a finding on that. He accepted

the plaintiff's evidence that he was keeping a proper

look-out and he said it would have been impossible for

the plaintiff to have failed to see at the distance

he was travelling behind the defendant, in effect

had a left-hand indicator been in operation.

MR SULLY: Well, so, with great respect, it seems to us, if

Your Honours please.

Now, confronted with that situation, it is our

respectful submission that although - if we might put our

point this way - the Court does not normally bring up

for review straightforward - - -

MASON CJ: That is the point I wanted to raise with you. It is

a case that turns on issues of fact only.	Why should we
grant special leave to appeal?

MR SULLY:  For this reason: that the approach of the Full Court

is erroneous. It misconceives the extent to which an

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intermediate Court of Appeal is entitled to interfere
with the judgment at trial, not upon the basis that
it thinks there have been findings of fact that were

erroneous, not upon the real WARREN V COOMBES basis,

that is to say, that it accepts findings of fact made

by the primary judge but questions the correctness of

an inference drawn from them; not, indeed, upon any

demonstrated rational alternative approach at all

except simply to say, "Well, we think it was a bit

oblique." "Careful scrutiny of His Honour's judgment"

and so forth as at the passage that we have put in the

first of the proposed grounds of appeal in the draft

notice of appeal.

Now, with great respect, that is a dangerously

unsatisfactory sort of approach to permit to stand

uncorrected.

MASON CJ: You can understand what motivated the Full Court.

After all, the primary judge's decision in the case was

an unlikely decision having regard to the relationship

between the parties and the circumstances of the case.

That is the prima facie impression that the Court of

Appeal would have obtained from the ,bare facts and framework of the case.

MR SULLY:  But, Your Honour, the great difficulty with saying

that, with respect, is that it does not come to grips
with the very important question of principle of
just to what extent the exposure of his process of
reasoning by the trial judge is to become a matter

upon which an intermediate Court of Appeal may properly

interefere and that upon approaches to what in truth

has happened at the hands of the trial judge which are,

we presume to suggest to Your Honours, demonstrated in

the present case to have been themselves mistaken.

MASON CJ: Yes. It is a little disconcerting when you find

that the Court of Appeal has not examined for itself
or identified its role by way of intervention with findings

of fact made by a primary judge, and it then proceeds to

identify his failure to find two material facts on the

issues that were presented, and you find on examination

of the judgment that he did make such findings.

MR SULLY: Exactly so. And, Your Honour, what makes it all the

more disconcerting is this: that if the Full Court had been motivated,for whatever reason, to interfere in the

way that it did, one would have thought, with great

respect, that Their Honours would at least have taken up

those principles which are conveniently explored although,

in Australian terms, not authoritatively decided because

this Court, as it happens, does not seem ever to have

pronounced finally upon the matter - in the TATMAR

decision to which we have rPfPr.red - we have copies if

it interests Your Honoursto see the statements but

Your Honours will be aware of them - they are,in their

cast, fairly, fairly conservative and a little speculative,

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with respect, in terms of what are thought to be the

conceptual principles that underlie this notion that

a judge has committed an appellable error of law if

he does not expose sufficiently the processes of his

reasoning and so the questions open up: is

Mr Justice Mahoney, for example, correct when he says,

"Well, the starting point is that the proper exposure

of a process of reasoning is an incident of the

judicial function?" Once one takes hold of that,

certain things follow and they follow in a form which,

if correctly conceptualized, means that the one thing

that does not happen is what happened here, that the

intermediate Court of Appeal, without even adverting

to the principles, let alone analysing them and applying

them in a rational way to concrete facts clearly found,

simply does not advert to them at all and then, as	has
been noticed more than once - may we for the last time

notice it - moves in and upsets the judgment at trial

on a basis which although it speaks of careful scrutiny,

with great respect, demonstrates anything but.

DAWSON J: Well, you really say a blatant disregard of proper

principle by a Court of Appeal is always a matter of

public interest?

MR SULLY:  Indeed, yes, Your Honour. And because Your Honours know -

we hope Your Honours will not take it amiss that we

put the matter as frankly as this:  if the Court will not

be persuaded to look at the matter in a case as stark

as this, then ordinary experience suggests what will

happen and what will happen is that either the judgment

of the Full Court will be reported, or even if unreported
it will certainly gain the necessary currency and, of
course, particularly in the Territory where the judgment
stands as a binding precedent - but as we said a little

while ago, even in other States where that is open to

some academic argument but the persuasive value of what

falls from the Full Court cannot be disputed, then there

is room for a gradual firming of a perfectly erroneous

approach to a perfectly important and fundamental princip~e

and that against the background, on the hypothesis that this

Court, having been invited to bring the matter up to

pronounce onceand for all what the real principles are

and to show how they ought to have been applied

rationally in a simple case and a straightforward case

like this, has for whatever reason declined to do so.

We do respectfully press upon Your Honours that this is one of those matters where what has happened is so

sadly amiss that the Court really ought, for the proper

guidance of other courts - indeed, other courts at trial

who have to grapple with this question of extempore

judgments and other intermediate courts of appeal, not

least of all the Full Court of the Federal Court itself -

will have some authoritative guideline as to what is

to happen and a condign example in the present case of

how not to do it. Those are our submissions, may it

please the Court.

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MASON CJ: Thank you, Mr Sully. Yes, Mr Morrison.

:MR MORRISON:  Your Honours, the two matters that my learned

friend has said were at the heart of the controversy

in this case were, of course, whether the left-hand

signal indicator was applied and the second matter was

the precise position of the vehicle on the roadway.

In regard to the left-hand signal indicator, I would concede that by his comments, His Honour at first

instance did indicate a finding in that regard

notwithstanding the expressions in the appellate court.

However, it was the way in which he did so which, in

turn, encouraged intervention no doubt on the part of

the appellate court because what His Honour Mr Justice Ke:ly

reasoned was that the plaintiff did not see the left-hand

turn signal, therefore, there was no signal. But, of
course, there was another inference equally available to

His Honour which His Honour apparently did not address himself to and that is that such a failure constituted a

failure upon the part of the plaintiff to keep a proper

look-out and His Honour's only reason for not reaching

that second conclusion was that the left-hand turn

signal must have been visible to the plaintiff from the

position he was in. But there is a logical error in that

process: that assumes that the plaintiff was, in fact,

keeping a proper look-out and His Honour is therefore

assuming a proper look-out in order to reach the conclusion

of a proper look-out.

MASON CJ: That is not correct. I mean, His Honour had earlier

indicated that he was accepting that the plaintiff was not

keeping a proper look-out. He then goes on to say it

would have been impossible, in the circumstances, for him

to have failed to see at the distance he was travelling

a left-hand indicator in operation. He uses his acceptance

of the plaintiff's evidence,in the circumstances,

as a reason - one of the reasons for finding that the

defendant was not keeping his left-hand indicator in

operation.

:MR MORRISON: Well, in my respectful submission, there is a logical

jump there. The fact that a person does not' see something

does not mean that it is not happening and that was the
assumption made by His Honour. His Honour finds a proper

look-out because the plaintiff asserts he was keeping a proper look-out. There can be no objective evidence as to such a matter, it is purely a matter of assertion

in the end. So that on that bald assertion, followed by

the fact that His Honour concludes that if the plaintiff

had looked he would have seen it, His Honour therefore

concludes that the plaintiff did look at it was not there.
But it is equally compatible with that process of
reasoning that, in fact, the signal was on, the plaintiff
did not look, because the only basis for concluding the

keeping of a proper look-out is the assertion by the

plaintiff that he was.

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Now, His Honour did not deal in any very satisfactory

way with the evidence of the defendant. The evidence of the defendant was quite specific, that the signal was on

at the relevant time, and His Honour did not give any

reasons in any clear terms for objecting to that assertion.

MASON CJ: What happened though, broadly speaking, was that

the primary judge accepted the evidence of the plaintiff

in preference to the evidence of the defendant.

MR MORRISON: That is so, Your Honour.

MASON CJ:  Now, once His Honour did that, was not the Court of

Appeal placed in this situation, that it could only

disturb his ultimate finding, that is, of negligence

on the part of the defendant, if the evidence which he

had accepted, namely, the evidence of the plaintiff, was

inconsistent with incontrovertibly established facts

or was evidence that was glaringly improbable?	Is not
that the test to be applied?

MR MORRISON:  Yes, it is, Your Honour. I cannot suggest

otherwise on the authorities although the matter has

not, as my learned friend indicated, been a matter

before the High Court. Understandably, it is primarily

a matter for the initial appellate courts around this

country.

MASON CJ: Well now, if that was the test to be applied in this

case, there is no indication in the Full Court judgment

that they were applying that test, is there?

MR MORRISON:  No, there is not, though one may draw the

inference that they saw the finding of His Honour's,
in the circumstances, of a motor cycle riding into the
rear of a vehicle and a finding that the motor cyclist
recover in full without reduction for contributory
negligence as being wholly improbable. That inference

would seem to ride through the judgment of the Full

Court but, no, they do not, certainly, expose that

process of reasoning.

MASON CJ: Well, in a sense it is that idea that I put to

Mr Sully earlier when I said that the natural reaction of

an appellate court would be to think that there was

negligence on the part of the rider of the motor cycle

rather than the driver of the car, in the circumstances,

but can you say that the conclusion reached by His Honour

was, in a sense, glaringly improbable having regard to

the evidence given in the case, particularly the account

given by the plaintiff and the defendant?

MR MORRISON: In my respectful submission, yes, in the sense

that His Honour, at first instance, because of that

logical or illogical, I would say, jump, reached the

conclusion that there was no contributory negligence on

the part of the plaintiff. He was, in effect, saying

the plaintiff - "I assume that because the plaintiff

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didn't see the indicator on, therefore it wasn't

on."

DAWSON J: If that was the process which the Court of Appeal

were engaging in, then they should not have granted a

new trial.

MR MORRISON: That may be so, Your Honour, although one of the

difficulties that the court was faced with was the

requirements of the legislation which they were applying

and which was discussed by them in some debate after

their decision was made. They concluded that in

the circumstances there was no alternative but to grant

a retrial as to all issues. But, Your Honours, what

I put to this Court is given that - and I should say

in that regard the situation curiously enough was

it was the respondent here that sought to retain the

verdict as far as quantum was concerned and allow the

retrial only as to damages. The view of the applicant

here was that the retrial should be as to all issues

and the court concluded they had no power and no
submission was put to them that they had any power to

do other than order a retrial as to all issues.

MASON CJ: The Full Court seems to have proceeded on the footing

that the trial judge, in effect, had not properly

exercised his jurisdiction so as to make critical findings

of fact and on that view it was necessary to order a new

trial. Now, if in fact the Full Court was wrong in

apprehending that the primary judge had not made findings
of fact, then one would have thought it was necessary
for the Full Court, if they disagreed and properly
disagreed with the conclusion reached by the primary

judge, to substitute a verdict for the defendant.

MR MORRISON: Well, that, certainly, was the alternative.

They took that view. Although, I should say,

Your Honour, in regard to the location of the vehicle on

the roadway, although His Honour adverts to it, he did

not express any firm conclusion in the ultimate analysis

so that there was a much better ground for complaint

on the part of the Full Court in regard to that aspect

of Mr Justice Kelly's judgment, that is, he discussed

the evidence but he did not give an express finding

and as the Full Court said that was a matter which was

quite crucial ultimately.

But, Your Honours, the question here is whether

this is a matter which calls for the intervention of

this Court. It is not a sufficient answer, in my

respectful submission, to say merely that the Full Court

was in error in their approach but, rather, to look at

the overall result and say, is it, in the result,

such an injustice as would cause the High Court to wish

to intervene? The resuJ.t of the decision of the Full

Court might be thought,upon any reading of these judgments, to result in something which is eminently

fair in the circumstances, a retrial of the issues because

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the result at first instance seems with that rather

illogical jump to which I have referred to result in

something which just does not seem to stand up to the

ordinary motorist's view of what is negligent and what

is not. So that the finding of no contributory

negligence, the finding wholly in favour of the plaintiff,

seemed to be a matter which called for intervention and

if the result of that intervention is a retrial which

will result in the ultimate and proper determining

of the issues between the parties then that is a matter

which, in my respectful submission, this Court would be

loathe to disturb.

TOOHEY J: Except, Mr Morrison, that six years has already gone

by or nearly gone by since the accident.

MR MORRISON: Well, no doubt, there are interest provisions

which relate to that. But, of course, Your Honour, were this matter to be dealt with by the High Court

it is doubtful whether that would determine the matter

any rmrerapidly than the retrial in relation to which, no doubt, priority has already been obtained and which
would, no doubt, take place within a relatively short

course.

TOOHEY J: Yes, I see the force of that.

MR MORRISON:  So that, Your Honours, even if the approach by

the Full Court be, in the end, an unsatisfactory one,

my respectful submission is that where the result is a

retrial and where the result will be ultimately that

justice be done between the parties, that is a matter

in which this Court would be loathe to interfere.

MASON CJ:	We need not trouble you, Mr Sully.
MR SULLY:	May it please the Court.
MASON CJ:	The Court will grant special leave to appeal in this

matter.

MR SULLY:  May it please the Court.

AT 1.08 PM THE MATTER WAS ADJOURNED SINE DIE

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