Lewis v Shimokawa

[2010] HCATrans 21

[2010] HCATrans 021

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney     No S267 of 2009

B e t w e e n -

REBECCA LEWIS

Applicant

and

SHIZUNORI SHIMOKAWA

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 2010, AT 3.09 PM

Copyright in the High Court of Australia

MS S. NORTON, SC:   If the Court pleases, I appear with my learned friend, MS M. FRASER, for the applicant.  (instructed by Brydens Law Office)

MR K.P. REWELL, SC:   If the Court pleases, I appear with my learned friend, MR A.J.J. RENSHAW, for the respondent.  (instructed by Sparke Helmore Lawyers)

HAYNE J:   Yes, Ms Norton.

MS NORTON:   Thank you, your Honours.  This is an appeal from a decision of the New South Wales Court of Appeal ‑ ‑ ‑

HAYNE J:   Well, no, it is an application for leave, I hate to tell you, Ms Norton.

MS NORTON:   An application.  I know, I have read it wrong, I am sorry.  I have been sitting there too long.  All right, start again.  It is an application for leave to appeal from a decision of the New South Wales Court of Appeal.  There is no dissenting judgment but we say there is a very detailed judgment from the trial judge.  The Court of Appeal, in short, held that the trial judge’s finding as to the reliability of various witnesses was open, but they did not find his reasons particularly compelling and a retrial was ordered, although it was suggested that a retrial might lead to the same result.  The case is special only insofar as it is an extreme example, perhaps, of the Court of Appeal interfering with the assessment of credit and resulting in fact finding by trial judges.  It is slightly unusual in that the respondent to this application, the defendant in the District Court proceedings, had pleaded that the applicant’s claim was fraudulent.

One of the major complaints accepted by the Court of Appeal and made by the respondent, who was the appellant below, was that the trial judge had spent too much time criticising the various witnesses called on behalf of the respondent to this appeal and not enough time similarly examining the evidence of the applicant on this application, but that seemed to leave aside the learning that goes with when a claim is said to be fraudulent.  It is not the same with respect to looking at the applicant’s evidence.  The applicant’s evidence was that she was in the car when the first impact happened, she was in the car when the second impact happened, so she would have a reasonably clear knowledge of that. 

Her case was that she was injured in the second accident that occurred.  So if she was wrong and she was not in the car, then clearly what she was doing was fraudulent, it was perjury and it was for secondary gain.  Fraud was pleaded.  It was not put to her in cross‑examination that she was doing it for secondary gain, but clearly the issue was there, it had been pleaded.  In those circumstances it is slightly different when you are looking at the evidence of the respondents again.  The Court of Appeal accepted complaints made by the respondent to this appeal, the appellant below, that certain things were not put to various witnesses. 

In fact, it was not put to them that they were lying and that is not, in my submission, surprising, given that much of the evidence that they gave about what happened on the day, about the first impact being slight, cigarettes being shared, numerous other accidents – somewhere between 30 and 35 other collisions occurred on this fog‑bound road – those things happened according to the plaintiff and according to the defendant.  It was the timing of them that was different.  So the applicant’s evidence, if it was wrong, was fraudulent.  The respondent’s evidence, if it was wrong, could be explained just on a mis‑remembering of the time sequences of things and in those circumstances it is not surprising that the trial judge spent more time examining the evidence of the respondent’s witnesses than he did examining the evidence of the applicant.

HAYNE J:   Having regard to the fact that there is to be a retrial, why is it in the interests of justice in the particular case that this Court take the matter?

MS NORTON:   Well, now, what happened at the original trial, if I can just briefly set it out, was that there were almost no challenges to the credit of the applicant other than the evidence of these particular witnesses.  There was the two challenges on quantum that are mentioned in Justice Giles’ judgment in the Court of Appeal, that is, that she had filled out a questionnaire wrongly, perhaps, about a prior injury and that she said she could not remember some massage.  They did not amount to much according to Justice Giles.  They were the only credit attacks run other than the calling of the witnesses at the first trial.

If this goes back for a retrial, what will have happened is that first trial, which took three days, will be nothing more than an opening round in a course of litigation that will continue until perhaps the applicant is just exhausted, because now it can go back, the retrial is not limited just to liability, it is to quantum as well.  A different case can be run down below and it puts at nought the running of the first trial that took three days and in circumstances where, because fraud had been pleaded, it was a case that one would expect to have been run with great care the first time and with all the evidence that wanted to be called being called and everything being put to the applicant that needed to put to.

So what happens is it becomes unfair from the applicant’s point of view because now the retrial will take place even longer after the event.  The witnesses called by the respondent will no doubt be called again, and

they have had the benefit of a dress rehearsal, and the case can be run differently the second time around having not succeeded the way they chose forensically to run it the first time.  Those are the submissions we make and why in this particular case, although we got a retrial, it is not a fair result.  What will happen again is if there is retrial, again the trial judge is going to be faced with the same problem.  We are going to have one witness saying one thing, supported as she was by contemporaneous evidence and phone calls she made to her family at the time, these other witnesses and another trial judge is going to have to decide which of these two lots to believe.  You cannot believe both.

So, no doubt, we can go up to the Court of Appeal again.  This time the complaint in the Court of Appeal seemed to be that the trial judge gave too many reasons, so next time it might be, well, he has accepted this witness over that witness, but has not given enough reasons.  In the end it is always going to have to come down to largely a question of demeanour and which witnesses are accepted by the trial judge.  It is very distinctly a trial judge’s issue.  Those are my submissions, your Honour.

HAYNE J:   Yes, thank you very much.  We will not trouble you, Mr Rewell.

No disputed question of principle would fall for consideration by this Court if leave to appeal were to be granted.  Given that there is to be a retrial, it is not in the interests of justice in the particular case that there be a grant of special leave.  Special leave is refused with costs.

Adjourn the Court to 10.15 on 2 March in Canberra.

AT 3.17 PM THE MATTER WAS CONCLUDED