Peter Marshall Baxter bhnf Laurna Baxter v Sangha

[2009] HCATrans 293

[2009] HCATrans 293

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S99 of 2009

B e t w e e n -

PETER MARSHALL BAXTER BHNF LAURNA BAXTER

Applicant

and

BALRAJ SANGHA

Respondent

Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 3 NOVEMBER 2009, AT 1.14 PM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR K.W. ANDREWS, for the applicant.  (instructed by Keddies Lawyers)

HEYDON J:   Mr Jackson.

MR JACKSON:   Your Honours, this is a visitation case, if I may ‑ ‑ ‑

HEYDON J:   This is an ex parte application?

MR JACKSON:   No, no, your Honour.  What I was going to say was it is a visitation case, and I indicate why we did not ‑ ‑ ‑

HEYDON J:   Mr Walker wants to announce his appearance.

MR JACKSON:   I am sorry, your Honour.

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends, MR M.R. WILLIAMS, SC and MR R.A. O’KEEFE, for the respondent.  (instructed by Vardanega Roberts)

HEYDON J:   Now, visitation case, you were saying?

MR JACKSON:   May I indicate why, in our submission, the Court should make that trip  Your Honours, the facts your Honours will have seen are in short compass.  The applicant had been drinking, he started an altercation with the taxi driver taking him home.  Your Honours can see that at page 53 of the application book, lines 1 to 10.  When the taxi stopped, the altercation continued and, as the Court of Appeal on the second occasion put it at page 80 in paragraph 7, your Honours will see what was said in the last three lines, “as will appear, the evidence of the independent witnesses” and, your Honours, that goes on through the remainder of that paragraph, which also has been set out in our summary of argument.

Your Honours, this was a case where the passenger door of the taxi was open and three times the taxi driver reversed, each time knocking the applicant down.  The third time he reversed quickly and at speed, again knocking the applicant down and causing severe brain damage.  Now, your Honours, this was the second trial.  On each occasion the judge had not believed the taxi driver.  At each trial the trial judge found for the applicant with quite independently a finding of 25 per cent contributory negligence.  Your Honours, there was a finding that the taxi driver had deliberately reversed the taxi, intending to cause injury and knowing that it most likely would, which your Honours will see at page 62 commencing about line 10 going through to about line 25. 

Now, your Honours, we have set out in our summary of argument – and if I could take your Honours to page 154 for just a moment – we have set out at page 154 through to page 156 seven reasons why, in our submission, the Court of Appeal erred in the course which it took.  Your Honours, may I say something about them.  The first reason referred to in paragraph 13 on page 154 and the second reason at paragraph 15 on the same page are, in our submission, really matters which in the end in the scheme of things are either incorrect or trivial. 

As to the first of them, any restriction upon examination‑in‑chief of the taxi driver, the only instance where that possibly could have occurred is at the start of the trial when the judge asked why some matters were being gone into when there was evidence already and, as we say in our submissions in reply at page 163 and in particular, your Honours, in paragraph 2, the other instances referred to in our learned friend’s written submissions are passages where the judge was dealing with the question of the relevance of evidence and the objection in two of the three occasions had been made with which he had to deal.

Your Honours, the difference in language referred to in the second point at page 154, paragraph 15, is a matter which, in our submission, if I could use the word again, with respect, trivial because it is plain.  If one looks at what was said by the primary judge in the first couple of pages of his reasons and if one looks also at what he said in the later pages of his reasons which we have referred to in paragraph 16, he was, in fact, considering whether the evidence of the taxi driver should be accepted. 

If I could come more to the more significant points, first of all the third and fourth points which we make on page 155.  Your Honours, it is quite incorrect, with respect, to say that the primary judge did not attempt to determine whether any of this evidence was corroborated.  If one goes first of all to page 56, you will see in lines 40 to the bottom of the page and going over to the top of the next page a consideration of issues of that kind.  If one also goes back, your Honours, to page 50, commencing in the second line on the page and going through to line 22 on page 51, the judge is considering the other evidence that there was on the issue.  It is clear that he weighed up all the evidence which he had which went to the question whether there was corroboration of Mr Nagra’s evidence. 

If I could come back, your Honours, to page 155 to the point in paragraphs 18 to 21 which we described as the fourth point, the Court of Appeal said at paragraph 118 that the driver’s evidence that he was being punched or sought to be punched was corroborated particularly by the two pieces of evidence that are referred to there.  Your Honours, may I deal with those points very briefly, the first concerning Ms Travers, Jamie Lee Travers.  Your Honours will see, if one goes to page 96 and in particular at paragraph 39, her evidence, in effect, concluded by saying, “that she could not see who was punching whom”.  The actual evidence is the passage quoted at page 155, in paragraph 19.  So she did not exactly see who was punching who.  

Your Honours, the evidence of Mrs Jones, whose evidence the primary judge accepted, was – and your Honours can see at page 92 – it is a passage, your Honours, which commences in paragraph 32 on page 92 and your Honours will see the passage then quoted going over to about line 18 on page 93.  She said she agreed that she did not know whether there was any contact being made between the people involved.  Now, your Honours, the judge, in our submission, was perfectly entitled to say he was not satisfied there was physical contact in the light of that evidence. 

Could I just say this, your Honours.  This was a taxi that had a driver capsule in it.  Your Honour, that does not appear, I think, precisely from the material but, your Honours, it was an exhibit at the trial.  It was part of exhibit B at the trial and if your Honours wish to see it, I can give your Honours the photograph that was in evidence showing a driver capsule which did not cover the whole of the driver’s body but covered a significant part of it.  So the notion that there was going on in the taxi with the applicant getting in the door of the taxi on the passenger side and attacking the driver and punching going on between them in the front seat is something where the judge might well say, “Well, I know there was a commotion.  What it was I cannot go further and say”.

Your Honours, could I say then three other things.  The first is that the point we refer to in paragraph 22 on page 155 is that the Court of Appeal said that the suggestion, which is really related to what went before, that after the applicant first got out of the taxi the punching and assault ceased, was contrary to Mr Nagra’s evidence but also of the independent evidence.  Your Honours, one has to read the evidence together with the parts to which I have referred, but also it is apparent, your Honours, that he had given evidence at the first trial – the evidence was in evidence at the second trial – that after he got out of the taxi and stood on the roadway there was no further assault or punching.  Now, your Honours, I can give your Honours, if necessary, the actual transcript passages if your Honours wished to see them.

BELL J:   But at this trial Mr Nagra’s evidence was that there was continued violence, yes?

MR JACKSON:   Yes, he did say, that is right, your Honour, yes.  However, your Honour, that was part of his evidence.  The passage that had been in evidence at the first trial was then put to him at some length.  We have submitted in the last sentence in paragraph 23 that his response was unsatisfactory.  Perhaps I could give your Honours, if your Honours are prepared to accept them at this point, copies of the transcript.  I wish to go only to that page.  May I have your Honours leave to do so?

HEYDON J:   Yes.

MR JACKSON:   I wanted to go, your Honours, to page 64 of that.  The passage is one, your Honours, that commences at the bottom of line 50 on page 64.  You will see he was asked, on that page, about his previous evidence at the previous trial.  Your Honours, that goes on through the next page until line 35 on page 66.  Now, your Honours, I will not attempt to read it out, but we would submit that the judge was entitled to regard his responses in the second trial as ones that were unsatisfactory and to arrive at the view, which he did, upon the evidence which had been given at the first trial. 

The penultimate point we would seek to make, your Honours, is the point that we seek to make at page 156, paragraph 25, and it is, your Honours, that what one had was a case where this was a very, very dangerous thing for the driver to do.  You have got the open passenger front door, a man between the door and the car, he has knocked him over twice and then he went back a third time much more quickly and for a much greater distance.  If one goes to what was said by the Court of Appeal at page 127, paragraph 119, the view:

that it was open for his Honour to find that Mr Nagra did no more than was necessary to attempt to defend himself and escape from the repeated assaults –

et cetera, and one sees the remaining part of that sentence.  Your Honours, perhaps it may have been open, but the fact of the matter is that the judge did not so find and the judge saw Mr Nagra and to make a finding of that kind you would really have to have accepted his evidence.  Your Honours, for the reasons we have set out in paragraph 27 of page 156, our submission is this is a case where the Court should grant special leave.  Your Honours, those are our submissions.

HEYDON J:   Yes, thank you, Mr Jackson.  The Court will adjourn briefly to consider.

AT 1.29 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.33 PM

HEYDON J:   Yes, Mr Walker.

MR WALKER:   Your Honours, a very important aspect of the findings of the trial judge on the second trial concerned continued violence and aggression on the part of the plaintiff against the driver.  At page 120 of the application book there is one of the main places where the Court of Appeal makes a finding, in our submission, compelled by evidence none of which depended upon demeanour or upon the advantages uniquely held by a trial judge with respect to the fallacious factual reasoning by his Honour below.  The excerpted passage in paragraph 97 at line 25 concludes with the very emphatic, “definitely no punching or assaults”.

It is contained conveniently, but tellingly in a sentence which refers to the evidence of Mrs Jones and the Travers’ girls.  As the reasoning proceeds to demonstrate in paragraph 98, including by reference to the material already canvassed in the Court of Appeal reasons before that paragraph, that simply cannot be right however charitably one interpreted the notion of no punching or assaults, that is, in relation to the attempt to hit or in relation to assault short of battery, because on any view of it something was happening.

HEYDON J:   Is your point, this narrow point, perhaps, simply that he might not have been able to say who was punching but there was punching?

MR WALKER:   There was most definitely punching and that really only left logically three possibilities.  One is what appears to be the first instance finding “no punching or assaults”.  That would appear literally to mean no one was doing anything.  Now, that is completely contrary to the evidence.

BELL J:   I think his Honour did accept the waving of arms around.

MR WALKER:   Yes.  That appears to be a reference to something previous to the occasion upon which it has been said definitely no punching or assaults or, alternatively, it is just possible his Honour is drawing a distinction, which the witnesses were not really prepared to draw, between arms being waved around in a non‑threatening, non‑aggressive way, some gentle semaphore exercise, and an attack.  It is clear that there was an attack.  There is no doubt about that.  It is significant as to when it stopped.  I will come back to that matter in a moment, my friend raised it.  But there is an emblematic and central question of appellate supervision of the first instance decision raised on this matter which was at the heart of the case.  There was accepted and reliable evidence from eyewitnesses there was no reason to doubt that there was something which included the aggressive use of arms. 

Now, once one puts aside, as plainly excluded by that evidence insufficiently attended to by the first instance judge, that there was nothing of that kind, one is only left logically with three possibilities, that only one of them, the plaintiff, was moving his arms accordingly, that only the other one, the driver, was moving his arms appropriately or both of them were.  Those are the only three possibilities.  The first and third of those possibilities would, of course, be wholly consistent with the driver’s version exculpatory of the defendant.  The second, that it was only the driver and therefore nothing which could be alleged against the plaintiff and be the subject of a finding which would make out one of the affirmative defences under the Act against the plaintiff’s cause of action, is not the subject of any consideration at first instance at all and is wildly unlikely, bizarrely against the probabilities. 

It is for those reasons, in our submission, that no visitation case is raised by the obvious disappointment the plaintiff’s camp finds with the second verdict on retrial, second trial, being set aside.  What matters, of course, is what happened at the second trial?  It is undoubtedly unfortunate and a subject of obviously anxious consideration from an overall systemic point of view that there have been two trials, but that does not mean that against the defendant there ought to be visited the injustice of the Court of Appeal failing to apply the remedy when a trial judge has unfortunately for the second time misused the advantages given to trial judges. 

In our submission, the other matters that have been raised today concerning the scene in question can rapidly be put to one side leaving a very stark picture indeed.  There are two matters that I would come to in particular.  The first is the reference to the driver capsule.  It is not in the application book because, if I may put it this way, it is not in the judge’s reasons at first instance.  My friend refers to the photo so I will refer to the photo.  It makes it crystal clear, as it was to the Court of Appeal, that it was not a capsule that would shield anyone from blows from the side.  So that can be put to one side, as it plainly was.  It goes nowhere.

The second matter relates to Mr Nagra’s, that is, the driver, supposed evidence that there had been a cessation of blows attempted to be struck after the passenger, the plaintiff,– I choose my words carefully – first alighted, that is, alighted, for what I will call the one and only time at his destination.  The question that he had been asked at the police station – this man whose language was not English as his native tongue – uses the word “finally”, when the man finally left the taxi, was there any further assault?  No.  Well, this passenger went back at least twice, perhaps more, he went back.  He went back in circumstances which, without any doubt, according to reliable witnesses where there is no demeanour or credibility question – see application book page 96 – he was looking to have a fight.  Paragraph 39, line 40, this is Marshall, the plaintiff:

like his top half body in the car still trying to have a fight with the tax driver . . . they kept on fighting –

On any view of it, that is the plaintiff.  No one could seriously suggest the driver was the aggressor with fists, leaving, in our submission, a matter wholly unattended to by the factual analysis of the evidence at first instance not capable of being swept up and subsumed in a credibility based assessment of the driver.  It is for those reasons, in our submission, that what the Court of Appeal did was unexceptionable in accordance with processes and subject to safeguards and self-administered cautions that this Court has pronounced over and over. 

It is only a visitation case, no question of principle could arise, and your Honours ought to be satisfied, even at the special leave point, that there was a correct outcome breached by the Court of Appeal.  It is, of course, deplorable that there will be a third trial, but that cannot, I stress, be used against the interests of the defendant when there has been a call for intervention by the Court of Appeal, as there was.

BELL J:   Can I just take up with you, it is application book 92, paragraph 32 sets out an extract of the evidence of Mrs Jones.

MR WALKER:   Yes.

BELL J:   Is this her account of a commotion that she observed that we would understand was after the ‑ ‑ ‑

MR WALKER:   Yes, leaning back into it.  Do you see the second line of paragraph 32 at about line 25, your Honour.

BELL J:   Yes.

MR WALKER:   So that is after he has left the taxi, he goes back, in the words of one of the young girls “looking to fight, trying to fight”.

BELL J:   Putting to one side the words of the young girl putting a colour on it ‑ ‑ ‑

MR WALKER:   Mrs Jones talks about “hands going around in a circular fashion”, line 40.

BELL J:   Then Mrs Jones is asked whether she knew whether it was coming from the driver to the passenger side or vice versa and she says, “No”.

MR WALKER:   That is one of the reasons why I raised the logical possibilities.  It was none of them, the evidence would be contrary to that.  It was one of them, the passenger, the evidence obviously supports that from other witnesses.  It was only the driver.  There is no evidence to support that.  Or it was both and there is evidence to support both.

BELL J:   It is just when one goes then to application book 120, paragraph 97 and the passage that is the subject of your submission, one can see that the primary judge accepted that there were arms waved about, took into account the absence of injuries to Mr Nagra, amongst other things, and his evidence given on the earlier occasion, in arriving at the conclusion that really is at the base of the reasoning of the Court of Appeal.

MR WALKER:   Of course, lack of injury was quite beside the point, because Mr Nagra himself said that after the blows – the ripped shirt, et cetera, while the car was in the course of the trip – he himself said that he did not manage to land blows, which of course certainly does not help the plaintiff, because if a person comes at me trying to punch me, I do not have to wait until he first punches me before I can take self-defensive action. 

So that, no, in the paragraph that your Honour has drawn to attention quoted in paragraph 97 and then subject to the criticism in paragraph 98 to which I have already referred, there is, in our submission, a wholly unexplained, and on the face of the bystanders’ eyewitness evidence wholly inexplicable, refusal to connect the waving arms with attempts to punch.  There was no evidence to support that arms were being waved in other than, on the passenger’s part, an aggressive fashion or, on the driver’s part, in a defensive fashion. 

There is nothing of any other kind and when one puts the arms waving into the context that the witness who used that rather colourless expression, she first introduced it by the word “commotion”. so this was nothing friendly, this was commotion, arms waving, put it together with the other eyewitnesses, punching and fighting.  In our submission, the trial judge has plainly misused the advantage and has not taken account of evidence that needed to be taken into account critically on the central issue involving the driver’s actions.  If it please the Court.

HEYDON J:   Yes, Mr Jackson.

MR JACKSON:    Your Honours, may I just go first to paragraph 114 in the Court of Appeal’s reasons at page 125.  What your Honours will see

there is that in paragraph 114 there is a reference commencing about line 41 to three findings made by the primary judge.  One was the rejection of the evidence that he had driven the taxi forward, accepting that he reversed it three times.  The second was the rejection of his evidence that he was unaware that the respondent was at the side of the vehicle and the third was the denial that he intended to cause injury. 

The Court then said in paragraph 115 that the first two findings were open to the judge to reject the driver’s evidence.  That seems a little inconsistent, with respect, with the view taken that the judge should not have accepted his evidence.  If one goes then to paragraph 116, they go on to deal with the particular point in which they say that the judge erred.  Could I just say this, your Honours.  If one goes back from that, bearing in mind those two things, to the passage relied on by my learned friends in paragraphs 97 and 98 at page 120, your Honours will see that their Honours say about line 39 on page 120:

It may be that his Honour was saying no more than that . . . there was no battery in the sense that his punches directed towards Mr Nagra did not actually strike him.  This would be consistent with the evidence of Jamie-Lee and Mrs Jones. 

Well, it would be, but Mrs Jones did actually say rather more than that at the passage at paragraph 32 that your Honour Justice Bell referred to a little while ago.  The second thing about it, your Honours, is that if one goes to the evidence of Jamie-Lee, and Jamie-Lee was relevantly at page 96, paragraph 34, what you will see in the passage immediately following the quotation was that she could not see who was punching whom.  Now, she gave oral evidence.  The judge was entitled to form a view about that oral evidence and the view that he formed about it is reflected in the view that he arrived at ultimately.  Your Honours, those are our submissions.

HEYDON J:   The applicant protests that it is unsatisfactory for the New South Wales Court of Appeal to have ordered a third trial, bearing in mind that each of the trial judges who heard the first two trials rejected the credibility of the key witness, Mr Nagra, in substantial measure.  As the respondent agrees, there is no doubt that that outcome is most unfortunate.  Further, Mr Jackson, QC, who appeared for the applicant made some considerable impact in seeking to damage the Court of Appeal’s reasoning.  However, there remains sufficient validity in the criticisms by the Court of Appeal of the second trial judge’s reasoning in relation to drawing factual conclusions from the evidence to make its orders defensible. 

The application is dismissed with costs.

AT 1.49 PM THE MATTER WAS CONCLUDED