Minkara v Pirelli Cables Australia Ltd

[1999] HCATrans 288

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S7 of 1999

B e t w e e n -

HOUSSAM MINKARA

Applicant

and

PIRELLI CABLES AUSTRALIA LIMITED

Respondent

Application for special leave to appeal

GAUDRON ACJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 SEPTEMBER 1999, AT 10.28 AM

Copyright in the High Court of Australia

MR D.E. BARAN:   May it please your Honours, I appear for the applicant.  (instructed by Dorrough Smart)

MR G.T.W. MILLER, QC:   May it please the Court, I appear with my learned friend, MR G.B. EVANS, for the respondent.  (instructed by N.W. Aussel).

MR BARAN:   Your Honours, this matter raises a number of issues which we have attempted to outline in a brief document called a Summary of Issues to be Raised on Special Leave which we lodged with the Court yesterday – it is one-and-a-half pages long – to try and crystallise exactly what it is we are bringing before the Court on this question of special leave.

Your Honours, the issue which we raise firstly is the issue of procedural fairness where a judge remains silent at a trial judge level when the witness who was giving evidence, especially the plaintiff and also the chief witness on liability, have a difficulty speaking the English language.  Where that difficulty is not a difficulty with the lawyers, it is inherently a  difficulty to the trial judge where the trial judge remains silent about that until the trial judge delivers a judgment in a reserved judgment taking some time to reserve.

Your Honours, we have annexed to the summary of issues to be raised on special leave two extracts from two cases which are the only two we can find which deal with a notion, if I can call it that, of judicial silence.  The first one is a decision of this Court in Vakauta v Kelly and if I can take your Honours, if I may, to your Honour the Acting Chief Justice’s decision, together with Justices Brennan and Deane at page 571, at about point 5, where the Court held:

In the course of an eloquent passage in his judgment in Reg v Watson; Ex parte Armstrong, Jacobs J expressed the view that judicial “silence” is a “counsel of perfection”.  We respectfully disagree with the application of that observation to a trial judge sitting without a jury.  It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated.

Then, in the Court of Appeal in New South Wales in a case called Parker v DPP, his Honour the President as he then was, at page 296, just under point D, said this, respectfully:

It used to be said that “silence” in a judge was “a counsel of perfection”: see, eg, R v Watson –

citing the same case as the High Court.

However, at least in the case of a trial judge sitting without a jury, that view has now been disapproved by the High Curt of Australia:  see Vakauta v Kelly.  Respectfully, I strongly endorse the view there expressed.  Fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer’s conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-maker to a different view.

GAUDRON ACJ:   One understands that perfectly well but in this situation the applicant gave a precise version of incidents which was not accepted.

CALLINAN J:   And the trial judge did not say that he could not understand the plaintiff.  He said it was extremely difficult but he managed to do it.

GAUDRON ACJ:   And what he was talking about was how then the accident did happen and he said it was in that context he could not get a clear picture but he had rejected your client’s version and your client was the onus-bearing party.

MR BARAN:   Your Honour, this is the difficulty.  He rejected the client’s version of what happened on that day.  That is what he says, that he had great difficulty understanding that.  It defies - - -

GAUDRON ACJ:   Yes.  You had better take us to the passage.

MR BARAN:   Yes, certainly, if I may.  I have extracted it in our outline at page 68 of the application book, and I have put it in capitals at line 50 where his Honour says:

I should point out at this point that because of the plaintiff’s and his witness’s imperfect knowledge of English it has been extremely difficult to understand precisely what occurred on the day.  No interpreters were used.

GAUDRON ACJ:   That is right.  Well, that is after he has rejected the account given.

MR BARAN:   But not disclosed during trial.

GAUDRON ACJ:   But his Honour was not obliged to go – if he rejected what the plaintiff was saying, it was not for his Honour to go and find some other explanation anyway, was it?

MR BARAN:   Your Honour, because of the delay in the case which was some 17 years, a number of matters were certainly put to the Court of Appeal on an alternative case based on a common sense causation-type argument.  If I can come to that in due course, if I may, your Honours.  But the problem with the disclosure made by the trial judge, firstly, it is made in the judgment.  But, secondly, the logical problem appears to be how can it be that a trial judge can accept a version when he does not understand that version?

GAUDRON ACJ:   Well, he rejected the version and he is not talking about the version.  He is talking about a theoretical question – well, not a theoretical question, but he is talking about another question altogether, trying to work out what did happen.

MR BARAN:   That is right.

GAUDRON ACJ:   The version advanced by the plaintiff having been rejected.

CALLINAN J:   Is this the strongest passage so far as your submission ‑ ‑ ‑

MR BARAN:   I think it is, your Honour.

CALLINAN J:   Well, the trial judge does not say that he could not, in the end, understand what the plaintiff was saying.

MR BARAN:   It is on the critical question of what - - -

CALLINAN J:   Is that not right, though.  He does not say that he did not, in the end, understand it.  He said it was “extremely difficult to understand”.

MR BARAN:   Yes.

CALLINAN J:   And then the next three or four pages of his Honour’s judgment contains a very clear summary, I suggest to you, of the plaintiff’s evidence under cross‑examination and does not suggest any difficulty having arisen on the part of the plaintiff in understanding the questioning or, indeed, on the part of the trial judge in appreciating the force and effect of the answers.

MR BARAN:   The problem is this, your Honours:  the way in which his Honour determined the case after he reserved is not known, whether it was from his Honour’s recollection, entirely from the transcript or both.  In any event, if he makes the disclosure that he had this extreme difficulty, it causes a doubt as to exactly how he came to his decision and whether he decided on the evidence.

CALLINAN J:   No.  No, I am sorry, he does not say he did not understand.  He said it was difficult, it was “extremely difficult to understand”.

GAUDRON ACJ:   - - -“precisely what occurred on the day.”

MR BARAN:   Yes, your Honour.

CALLINAN J:   But I go back to the words “extremely difficult”; not impossible.  The summary, I suggest, the summary of the plaintiff’s evidence, particularly in cross‑examination, when all relevant matters seemed to have been put to him, suggest that the applicant articulated his position pretty clearly.

MR BARAN:   That is correct, your Honour.  The trial judge, however – again, the strongest and highest we put the point is what that extreme difficulty meant in so far as it is a rather ambiguous situation.  Your Honour has said that it was not an impossibility but an extreme difficulty.  The question that is suggestive of any miscarriage, when we have no indication of how his Honour came to his Honour’s decision, on the one hand – on the other hand, whether or not his Honour, as a matter of procedural fairness, ought to have disclosed during the trial the difficulty he was having on such an important point, and that is what we are trying to raise as a matter of utmost general importance today, that that denial of procedural fairness is, firstly, unknown as to whether or not it is a matter of procedural fairness.  It is not known if it is the bias rule or the hearing rule or a matter of procedure, whose onus it is; the lawyer’s, the judge’s, the parties.  It is quite clear in the evidence and it is quite clear from the transcript, that he appeared to be giving his evidence and the lawyers understood but if his Honour had this extreme difficulty, we respectfully submit it would be difficult, if not impossible, to conclude that his Honour actually understood what occurred on the day such that he could form a conclusion that there was negligence.

In the alternative, the extreme difficulty would sound a warning bell that there has been this notion of judicial silence that has occurred.  The question that we raise in this Court is whether or not that is an appropriate matter to bring on special leave and the matter ought to be elucidated by the High Court on an appellate stage.  As to the actual principle that ought to apply to all first instance courts throughout the country, that persons who speak English as a second language come to the court and give their evidence and this particular problem occurs.  That is what we say was suggestive of his Honour’s problem and why it is so important to raise on special leave.

If I could go to the next point which is the Jones v Dunkell point, your Honours.  Your Honours will know from what we put in our submissions that the actual version given by the plaintiff of the failure to render assistance, which is the second leg if you would of his allegation of negligence which follows on from what this Court held in Braistina’s Case, was never the subject of any specific challenge, ever.  Now, he gave that evidence.  The evidence was not in any way challenged.  There was a witness nominated by the plaintiff, a Mr Shamovonian, and that witness, we established, was alive and well and available to be called.  He never was called. 

The Court of Appeal held, in effect, that we had to give some sort of notice of the existence of this witness.  We had to particularise his name.  We pleaded the failure to give assistance.  We pleaded it.  They were on notice.  We provided particulars of it.  But, yet, when the witness was not called, and we explained that he could be called, the inference was not drawn. 

The Court of Appeal, we say, made two errors:  one, they said it would have been a weak inference.  In my respectful submission ‑ ‑ ‑

GAUDRON ACJ:   But this case is, to a large extent, dependent on the primary case, is it not?

MR BARAN:   Yes.

GAUDRON ACJ:   Yes.  If the primary case falls away - - -

MR BARAN:   But it should not have, with respect.  If the inference would have been drawn, it would not have fallen away.

GAUDRON ACJ:   If which inference had been drawn?

MR BARAN:   The inference that if Mr Shamavonian would have come and given evidence, he would have given evidence that would not necessarily have assisted the defendant’s case but it would have supported  that of the plaintiff, namely, the failure to render assistance.

GAUDRON ACJ:   Which case?  The alternative case or the primary case?

MR BARAN:   The primary case at trial where he said “I was not given assistance”, and we have extracted that part of the transcript.

GAUDRON ACJ:   Yes.  His claim that he was not given assistance is made in a context in which he says they were pushing these trolleys or lifting or doing something with these trolleys, whereas the trial judge has found that these trolleys were running on the rail.

MR BARAN:   No, the trial judge, with respect, found – yes, that the safe system of work was in operation.  The Braistina point is that on the day in question when the plaintiff, who says it was not operating on the day or at all, when he asked for assistance, it was not given.

GAUDRON ACJ:   To push the trolleys, was it?

MR BARAN:   Yes.  That assistance was not rendered.  He wanted further employees.

GAUDRON ACJ:   Yes, but had not that point fallen away at the time it was found that the rail was in operation?

MR BARAN:   The finding of the trial judge was effectively that it was in operation at the time when the accident was said to have occurred.  But even if it was and even if the rail system was in operation and the plaintiff, for one reason or another, was not able to utilise it and required assistance from other employees to move the bobbin, which weighed 400 or 500 hundred kilos, Braistina comes along and says, “Well, you failed to enforce the use of that particular trolley system, and by failing to enforce that you are negligent.” The unchallenged evidence is that that is what occurred. It being unchallenged, it ought to have been accepted, number one. The witness who could have absolutely refuted it being available is not called. And, ultimately, the plaintiff should have got a verdict at trial which should have been upheld on appeal as being a case where the necessary inferences could have been drawn under section 75A of the Supreme Court Act, namely, that obviously what occurred was not the impossibility of lifting out a 400 kilo bobbin from a track but it was the attempt.  That was the obvious cause of this accident.

There is no dispute between the parties that the man was there on the day; effectively, that he was working in that section, only worked in that section and that at the end of the day had a broken back and had two spinal fusions.  Now commonsense in this matter, which has been upheld by this Court on the question of causation in cases of March v Stramare and Chappel v Hart, should have led the Court of Appeal to have drawn the commonsense inference, in my respectful submission.

GAUDRON ACJ:   Which was - - -?

MR BARAN:   Which was that in the attempt to lift the bobbin, because the trolley system was not available to the plaintiff, or in the alternative was not in existence, that is what caused the plaintiff to suffer his injury because he did not have any assistance and he was directed to do the thing that he was told not to.

GAUDRON ACJ:   You say that the Court of Appeal should have set aside the factual findings of the trial judge that the trolley system was in operation and substituted its own contrary finding?

MR BARAN:   Yes, or in the alternative ‑ ‑ ‑

GAUDRON ACJ:   You cannot make that case simply reference to Jones v Dunkel.You have to say that finding was not open on the evidence.

CALLINAN J:   It is not an absolute rule, Jones v Dunkel.

MR BARAN:   No, your Honour.

CALLINAN J:   It is frequently not applied.

MR BARAN:   Yes, your Honour.  But in this case it was one where, we say, it was so obvious that it should have been applied.  But it was the way the Court of Appeal dealt with it and they said that there are some other rule which is attached to it, namely, some notice that has to be given or some pleading.  In my respectful submission, there is no such thing, and the Court of Appeal agreed with me but later on they went on to say, “No, we now agree with the trial judge.”

GAUDRON ACJ:   Was it put to the trial judge that he should accept that version because of Jones v Dunkel?

MR BARAN:   The respondent put that version that basically – we put it at trial.

GAUDRON ACJ:   It was put to him?

MR BARAN:   Absolutely.

GAUDRON ACJ:   And what did the trial judge say about it?

MR BARAN:   Does your Honour want the Court of Appeal or the trial judge’s - - -

CALLINAN J:   The trial judge.

GAUDRON ACJ:   Trial judge.

CALLINAN J:   Is it at page 23, line 35?  Is it in that paragraph?

MR MILLER:   And also at line 50, your Honour.

MR BARAN:   Yes, your Honour.  Yes, I am indebted to my learned friend.  Thank you, your Honour.  But then the Court of Appeal picks it up and they, with respect, say - - -

CALLINAN J:   But the trial judge has made a finding of fact taking into account a Jones v Dunkel submission that was made and dealing with it and, in effect, saying notwithstanding that submission, for the reasons that his Honour sets out on page 23, your client has not satisfied him.

MR BARAN:   But if his Honour would have found – the problem was, was the way in which his Honour did come to that finding.  His Honour would have found that the failure to render assistance when it was called for, assuming the trolleys were not in operation and not being enforced to be used in accordance with Braistina’s Case, his Honour then said, “Of course, evidence would be open”.  His Honour refers to Birkovic and Bankstown Foundry and other cases at page - - -

CALLINAN J:   First of all, his Honour says at line 46, he was:

not satisfied that Mr Shamovonian was the plaintiff’s superior at the time –

It seems to be a factual finding which would make irrelevant, in any event, any submission that Mr Shamovonian was a material witness.

MR BARAN:   But even if he is not satisfied about the supervisor at the time, what - - -

GAUDRON ACJ:   And the person to whom he allegedly reported.

MR BARAN:   Well, that is right, your Honour.  But the plaintiff said that he nominates this man who is available to give evidence – nominates him and says that, “This man told me to do something”, effectively, “as a result of which I did it and I suffered injury.”

CALLINAN J:   But the trial judge is not persuaded that that was the man in question.

MR BARAN:   Again, we come back to the natural justice type argument as to whether or not what his Honour was understanding on the day and what he was having difficulty with about the accident on the day, and the problem is, your Honours, is that there is a risk that his Honour did not get it right and the Court of Appeal also did not get it right because of this language issue.  That is the primary concern that we would say is of special public importance on this application, to all first instance courts, in my respectful submission, because there was a real risk that his Honour got it wrong.

CALLINAN J:   But his Honour had earlier made a finding at line 26 that “on the whole I prefer the evidence of Mr Stride”, and Mr Stride was the person whom the defendant said the plaintiff reported to.

MR BARAN:   No, I think he was the person on the night.

CALLINAN J:   Well, he said, at line 26, on page 23:

I prefer the evidence of Mr Stride…..

Mr Miller referred to the plaintiff’s evidence concerning Mr Shamavonian and submitted that Mr Stride was the person responsible for the area on the night of the alleged accident.

MR BARAN:   Yes.  Mr Stride also gave evidence that one of the systems of work that was available at the time was using a procedure known as a “little nick”.  I am twisting my - - -

CALLINAN J:   I am talking about the question, the other issue, not who was there but the issue to whom the applicant reported, which is an issue you seemed to have lost on and once you lost on that, Mr Shamovonian’s evidence would have been of limited or no relevance.

MR BARAN:   Yes, your Honour, that is correct, with respect.  But what we cling to is effectively that the unchallenged version of the plaintiff is effectively what ought to have been accepted because it was unchallenged.  Those are my submissions, your Honours.

GAUDRON ACJ:   Yes, thank you.  We need not trouble you, Mr Miller.

Given that the applicant, who bore the onus of proof, gave a precise version of events and that that version was rejected by the trial judge after reviewing the whole of the evidence, there is no reason to doubt the correctness of the actual decision of the Court of Appeal in this matter.  Accordingly, special leave is refused.

MR MILLER:   We seek costs, your Honours.

GAUDRON ACJ:   Do you say anything about costs?

MR BARAN:   Your Honour, it is a matter in which the applicant is currently on workers’ compensation.  That is all I can really put to your Honours.  I would ask that each party pay their own costs in this case, given what happened with the language issue about the trial judge and the need for the prima facie appellate intervention.

GAUDRON ACJ:   No, in this case we think that the ordinary rule should apply.  So, special leave is refused with costs.

AT 10.49 AM THE MATTER WAS CONCLUDED