NSW Insurance Ministerial Corporation (formerly Government Insurance Office of New South Wales) v Hasna

[1993] HCATrans 136

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No SlSl of 1992

B e t w e e n -

NSW INSURANCE MINISTERIAL

CORPORATION (formerly

GOVERNMENT INSURANCE OFFICE

OF NEW SOUTH WALES

. Applicant

and

ABDUL HASNA

Respondent

Application for special leave

to appeal

DAWSON J
GAUDRON J

McHUGH J

Hasna 1 21/5/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 21 MAY 1993, AT 11.00 AM

Copyright in the High Court of Australia

MR C.T. BARRY, QC:  May it please the Court, I appear with

my learned friend, MR R.W.C. ROYLE, for the

applicant. (instructed by the Solicitor for the

New South Wales Insurance Ministerial Corporation)

MR A.J. LESLIE, QC:  If the Court pleases, I appear with my

learned friend, MR A.J. BARTLEY, for the

respondent. (instructed by Leitch Hasson & Dent)

MR BARRY:  Your Honours, we have prepared an outline of

submissions, and might I hand Your Honours that

outline together with photocopies of the

authorities to which reference will be made. I

should add, Your Honours, that most of that bundle

consists of the authorities, not the outline.

Your Honours, in the applicant's submission,

the grant of special leave in this matter is
warranted because, first, the judgment of the

majority in the Court of Appeal is wrong in fact

and in law; secondly, the question that arises is a

matter of general importance both at first instance

and in intermediate courts of appeal; and, thirdly,
there are differences of opinion between two

differently constituted Courts of Appeal in New

South Wales, between the Court of Appeal in New

South Wales and the Full Court in Victoria, between

each of those two courts and the Supreme Court of

the Northern Territory, and between the Supreme

Court of New South Wales and the Supreme Court of

South Australia on the applicable principles.

The Court granted special leave in a case of

Jones v Hyde, (1989) 63 ALJR 349, to enable the

relevant principles to be laid down but ultimately

that appeal turned on another basis. In Jones v

Hyde, Your Honours will note that

Mr Justice Brennan, in the very opening words of

the Court's judgment, said this:

Special leave to appeal was granted in this

case in order to consider the principles

governing the duty of a trial judge to state

the reasons for his decision. In the event,
the case does not raise that problem for

consideration.

This application, Your Honours, raises that

problem.

GAUDRON J: But that is not the problem that you have got in

this case, is it? At first instance, the reasons

for decision were stated. The problem is with the

reasons, not the lack of them.

Hasna 2 21/5/93

MR BARRY:  The principles governing the duty includes, I

would submit, Your Honours, the content of that

duty.

DAWSON J:	I suppose there is a duty to give the rights reasons but it is a duty of a rather different
sort, is it not?
MR BARRY:	Your Honour, perhaps it is a question of the

sufficiency of the reasons and what - - -

DAWSON J:	It is really a question of the correctness or incorrectness, is it not? That is the point that
Justice Gaudron makes.
MR BARRY:	Yes, I take Your Honours point. But also,

perhaps, a question of what the formulation or

requirements might be as a matter of principle,

what it is that they might contain. Not whether
they are right or wrong but whether they reveal a
process or an approach to the particular
subject-matter at issue at first instance which is

acceptable or unacceptable, the special leave point

being that if there is such particularity required

and if every possible issue, either at first

instance or conceivably that might arise on appeal,

needs to form part of the judgment, then the burden

on courts at first instance would be enormous and,

secondly, if the failure to do that constitutes an error of law - and I will take Your Honours to the different statements of principle on that

question - then in cases where there are appeals only on a question of law, if alleged inadequate reasons are an error of law then, of course, that

will provide both a fertile ground of appeal to

intermediate courts of appeal and also increase the

burden on trial judges when dealing with matters of

that nature. That, shortly, perhaps, stated,

Your Honours, is the special leave point here.

Whether I have quite got there on Jones v Hyde, I

am not sure.

Could I. indicate to Your Honours why the

judgment in the court below was wrong?

GAUDRON J:  Can I take you back to your earlier written

submissions, your reference to the conflict of

authority or conflict of approach? That is related

to the Jones v Hyde point that did not arise; the

non-Jones v Hyde point, rather than the question of

the correctness of the reasoning.

MR BARRY:  There is a striking difference in the approach in

South Australia and in New South Wales on whether

or not defective reasons are an error of law. In

New South Wales there is authority, on the one

hand, that that is an error of law; in South

Hasna 3 21/5/93

Australia the authorities are exactly to the

contrary. So, there is that difference, but the

difference is not as between Jones v Hyde and the

State courts but as between different State courts

on that question.

McHUGH J: But I fail to understand how these cases about a

duty to give reasons have got anything to do with

this case. The question is, is the Court of Appeal

judgment right or wrong or is it a view open to

them?

MR BARRY: That is so. That is the first basis upon which

leave is sought, that is, to demonstrate that the

judgment in the Court of Appeal was wrong and then

what I also seek to demonstrate is that not only is

it wrong but there is a point of principle which

warrants the grant of special in relation to the

subject-matter.

Can I take Your Honours to why it is wrong?

The issues at trial were a factual dispute of a

frequently occurring type and not very unusual.

The respondent's case at the trial was that he

walked across two empty lanes of traffic on a

four-lane road in metropolitan Sydney and was

struck by the applicant close to the kerb. His

case was, in effect, that the applicant had failed

to keep a proper lookout.

The applicant's case was that he was driving

in the kerb-side lane and the lane closest to the

middle of the road was occupied by a line of

traffic which consisted, in part, of a public

transport bus which obstructed his view of the

approach of the respondent.

At page 2 of the application book, the learned

Master's reasons or that part of it which dealt with the acceptance and rejection of evidence, is

found and at line 18, the learned Master said of

the plaintiff:  I found the plaintiff a most

unsatisfactory witness and I was convinced on

hearing his evidence, not only on the question
of liability but on other matters that he was
not prepared to accept the meaning of the

oath.

At line 26 on the same page, the learned Master

says:

I have no hesitation in accepting the

defendant's evidence.

Hasna 4 21/5/93

He accepted the applicant's version. In effect,

the learned Master based his decision upon the
acceptance of the applicant's version. However, in
the Court of Appeal, the respondent contended that

the tender of a signed statement in a police

notebook from a witness contradicted the

applicant's version and it was necessary, for the

discharge of the learned Master's judicial duty,

that he resolve what was said to be an

inconsistency between the version taken from the

witness and set out in the notebook and the version

given by the applicant. The alleged disparity was

whether the respondent had run from in front of a

public transport bus or had walked in front of a

white utility in lane one. The respondent's

version, as recorded in the notebook, is at page 1,

line 26 of the application book. He said:

I run across road between stopped cars before

one lane before shop and car hit.

At page 3 of the application book, the part of

the learned Master's judgment which ultimately

became the ground of appeal is set out and what was

there said was:

In my view, because of the findings in this

matter it is not necessary for me to find

whether the plaintiff stepped out from in

front of the bus or a car. I am satisfied

that the plaintiff stepped suddenly out in

front of the defendant.

In saying that it was not necessary for him to resolve that conflict, in effect, what the learned

Master was saying was that he decided the case based upon the acceptance of the version of the

case given by the applicant.

McHUGH J: But, Mr Barry, what has this got to do with this

case? This is an appeal by way of rehearing to the

New South Wales Court of Appeal. In exercising

that jurisdiction, no doubt the court was obliged

to bear in mind what this Court said in cases like

Abalos, about the advantage that the trial judge
had in respect of questions of fact. This is just

a run of the mill factual issue which, with some

ingenuity, you try to dress up as a special leave

case by referring to duties to give reasons and

conflict between intermediate courts of appeal

around this country.

MR BARRY:	Except for this, that the way in which the Court of Appeal approached it, in my submission, is wrong
in principle; that is, that when they came to
determine by what principles ought they determine whether or not the reasons given by the learned
Hasna	21/5/93

Master did or did not satisfy the requirement of a

judicial officer to give reasons, when coming to

deal with that they applied the wrong test.

If I move, Your Honours, from the factual

material: in substance, what was said by the Court

of Appeal was that by reason of part of what was

said by the applicant in cross-examination, it may

have been possible to glean from that the

proposition that as a matter of fact finding it

could have been found that the respondent walked

from in front of the car in circumstances where the defendant may not have hit him. Your Honours, that

matter was the factual basis upon which the Court

of Appeal allowed the appeal. Mr Justice Sheller

agreed with Mr Justice Mahoney in relation to that

matter at page 20, lines 20 to 26.

Mr Justice Cripps said this:

The issue before the Master was a stark

conflict between on the one hand the
plaintiff's version which was when he reached

the centre of the road there were no vehicles

in sight and, on the other for the defendant,
that at that time the two westbound lanes

were, in effect, full of traffic and that the

plaintiff came in the westbound lane and was

struck by the defendant who did not have the

opportunity to avoid the accident.

His Honour went over and said of the argument which

was accepted by the majority:

I was attracted to the argument until I

understood, with respect, what that statement

meant in the context of the conflict between

the parties.

Your Honours, the judgment in the Court of

Appeal, it is submitted, was wrong in that on a

rehearing the Court of Appeal found as a fact that

the material relied upon by Mr Justice Mahoney

justified that factual finding, in other words, the

factual finding that he could have avoided the

collision. In my submission, it did not - - -

GAUDRON J: Left such a decision open, not justified it;

left such a conclusion open.

MR BARRY:  Yes, Your Honour. With respect, I accept how

Your Honour puts it. Left if open. The question remained is was it necessary, in the discharge of the judicial duty, for the learned Master to decide

that or was it a sufficient basis for his decision

to proceed as he did, namely, to say, "I have heard

the plaintiff and the defendant. I accept the

defendant's version. In accepting the defendant's

Hasna 6 21/5/93

version, I accept what the defendant says, namely,

that the accident occurred in circumstances where I

could not stop"

If the content of the judicial duty to give

reasons is to state the ground or basis - in this

case, acceptance or rejection of witnesses - then,

applying that test, there was nothing wrong with

not to be allowed. the learned Master's judgment and the appeal ought

DAWSON J: Well, that is the point, is it not?

MR BARRY: That is so.

McHUGH J: But the Court of Appeal had to decide the facts

for itself, guided on questions of credibility by

what the Master had found. They were not

necessarily bound by his findings on credibility

but when they came to what they regarded as a

critical issue in the case, they came to the view

that the Master had not made a finding on that and

therefore the proper order was to order a new trial

of the action because they were not able to

discharge their own duty

MR BARRY: With respect, Your Honour, the principle for

which the applicant contends is that when a court of

appeal has got to address its mind to that question,

it must approach it on the basis of what issues were

fought at trial - - -

DAWSON J: Well, you say the Master had made the necessary

findings. That is your point, is it not?

MR BARRY: That is so, Your Honour. And applying what, I

submit, is the correct principle, namely, provided

there is a basis and the grounds for the finding
are given - in this case, acceptance of witnesses -

then the applicant ought not to have lost in the

Court of Appeal. And it lost because a test was

Master or judges at first instance to decide not applied which, in effect, required the learned	only issues as between parties, that is, matters
joined on the pleadings and by evidence, but also issues within a parties' case which may ultimately become the subject of an appeal.

That submission gains some force because it

was readily conceded and noted by

Mr Justice Mahoney that the point upon which the

appeal was argued was an entirely different basis

upon which the case was presented at first

instance. So that the applicant, in effect, lost

an appeal on a case which he had never been asked

to fight. So much is clear from page 11 where, in

Hasna 21/5/93

said:  the judgment of the majority, Mr Justice Mahoney

The plaintiff's case as it is now presented by

Mr Leslie QC is a frankly different case and

is based essentially upon the evidence which

was presented for the defendant at the trial.

The plaintiff's case in this regard -

and His Honour goes on.

So, in my submission, for two reasons: first,

applying Abalos and Jones v Hyde, the learned

Master did do what he was required to do; secondly,

on appeal, a different case was argued and although

there is a - certainly, the Supreme Court Act is in
the nature of rehearing, the rehearing, in my

submission, imports into it the various

requirements and restrictions upon what courts of

appeal must do and when one uses that yardstick,

what the Court of Appeal did in this case was wrong

in principle.

Your Honours, as far as the differences are

concerned between the various courts, in Pettitt v

Dunkley, (1971) 1 NSWLR 382 - - -

McHUGH J: These are all cases where there was no right of

appeal except on a question of law.

MR BARRY: That is so.

McHUGH J: And the question was had the trial judge given

sufficient reasons.

MR BARRY: That is so.

McHUGH J:  It is a very different case from a case where a

court has got a right of rehearing.

MR BARRY:  That is so, but that part of the argument on this

application really goes to the question of whether

special leave ought to be granted, not whether - on

the basis of the general importance of the matter,

rather than this particular case. It is true that

this was a case where there was an appeal as of

right on questions of fact as well as question of

law and this area of law, through Pettitt v Dunkley

and Soulemezis developed because, from the

compensation court there was no appeal other than
on questions of law, so it was then sought to be

argued in the Court of Appeal, in those cases, that

deficient or defective reasoning constituted an

error of law as a means of overcoming that

threshold restriction.

Hasna 8 21/5/93

But, Your Honours, the statements of principle in those cases are equally applicable, in my

submission, to the judicial duty which arises not

only in cases where there is only an appeal on

questions of law but also in matters where there is

an appeal on questions of law and of fact.

The leading judgment in Pettitt v Dunkley was

the judgment of Mr Justice Moffitt and at 388E

His Honour said:

It is important to observe, however, that the

judicial obligation to give reasons in an

appropriate case is directed to facilitating

the exercise of a right of appeal. The duty
was stated to be of long standing.

Consistently with this observation in 1851 in

England, where a special jurisdiction was

given to the Court of Appeal in appeals from

the County Court and it was provided the

decision of the Court of Appeal was final, it

was decided that, as there was no appeal, the

practice of giving reasons for judgment should

not be introduced. This is consistent with

the course often adopted by appellate courts

where there is no appeal from the particular

decision. Although some observations made may
suggest that reasons are desirable for the

information of parties, I do not think there

is any judicial duty to give reasons except so

far as such duty can be related to a right of

appeal.

In that matter, Mr Justice Manning agreed with

Mr Justice Moffitt.

The same question arose for consideration in

Soulemezis v Dudley, and in the Court of Appeal in

New South Wales a different view was given at 270E.

DAWSON J: But these cases really do not touch the point, do

they?

MR BARRY:	They touch it only to the extent of raising for consideration the question of whether or not a
failure to give adequate reasons is an error of
law. That question arises not in this case but
arises as part of the question that does arise, namely, the content of the judicial duty to give
reasons. That is the way in which the matter
arises.

GAUDRON J: But that does not even really arise, does it?

The question is whether the reasons were right or wrong. Whether they justified the conclusion in the context.

Hasna 9 21/5/93

MR BARRY: But, in my submission, Your Honour, rightness or

wrongness has got to be determined in accordance
with an examination of the process of reasoning.

There must be, in my submission, a yardstick or

means whereby it can be measured whether they are

right or wrong. If, based upon acceptance and

rejection of witnesses, then, except in certain

circumstances, courts of appeal cannot interfere.

But if - - -

DAWSON J: Well, you have made that point. You said the

Master was right because he accepted a particular

version and that was sufficient, and that the Court

of Appeal was wrong in coming to a different
conclusion.

MR BARRY:	That is so. Your Honqurs, in Soulemezis v Dudley Holdings a different view was taken. In my
submission, the correct approach as identified was
in the judgment of Mr Justice McHugh at page 280D
where Your Honour said:

But it is necessary that the essential ground or grounds upon which the decision rests

should be articulated.

That is, a test of ground or grounds and not

anything more specific.

I have set out in the submissions some other

statements of principle, both in New South Wales

and in Victoria. At page 7, paragraph 8,

Your Honours will see extracted what was said by

the Supreme Court of Victoria in the case of Sun

Alliance v Massoud which was a different

formulation of the relevant principle. In Lawson v

Lee, which is a South Australian case which deals

not with this matter but with the question of

whether there is an error of law in a failure to

give reasons. At page 446, in the judgment of the

Court of Appeal in South Australia, at about

point 6, Their Honours said:  It is apparent that we are unable to

follow decisions from courts elsewhere which

lay down a rule that failure to give reasons

is an error of law. Such a ruling would be

inconsistent with long established practice in

this State.

So, what the applicant submits is that the

Court of Appeal got it wrong; that the Master got

it right, and that the matter raises not only a

question of general importance in relation to the
duty where there is an appeal on questions of law

and on questions of fact, but it also raises the

Hasna 10 21/5/93

question of whether or not the failure to give

reasons constitutes an error of law.

DAWSON J:  Thank you, Mr Barry.

The Court does not consider that this case

raises any question of general principle which

would justify the grant of special leave to appeal.

Special leave is therefore refused.

MR LESLIE: Costs, if the Court pleases?

DAWSON J:	Mr Barry?
MR BARRY:	Nothing to put on that, Your Honour.

DAWSON J: Special leave is refused with costs.

AT 11.24 AM THE MATTER WAS ADJOURNED SINE DIE

Hasna 11 21/5/93