Redpath v Hadid

[2002] HCATrans 210

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S292 of 2001

B e t w e e n -

GRANT REDPATH

Applicant

and

MAROUN HADID

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 31 MAY 2002, AT 11.32 AM

Copyright in the High Court of Australia

MR C.R.R. HOEBEN, SC:   May it please the Court, I appear for the applicant with my learned friend, MR C.S. LEAHY.  (instructed by Carroll & O’Dea)

MR B.W. RAYMENT, QC:   May it please, your Honours, I appear with my learned friend, MR P.R. STERNBERG, for the respondent.  (instructed by Elias Gates & Associates)

GLEESON CJ:   Yes, Mr Hoeben.

MR HOEBEN:   Yes, thank you, your Honour.  At the risk of being something of a broken record in view of what has gone before, what we would say is the facts of this matter involve an even greater assessment of credit than even those two matters in relation to which your Honours have granted leave.

The factual situation, if not perhaps its resolution, was about as simple as one could get.  It was a question of whether the plaintiff could satisfy the Court that the defendant’s semitrailer had crossed the centre line, thereby bringing about the collision.  There was absolutely no objective evidence which would assist.  It became a contest between what the plaintiff said essentially and his witnesses and what the defendant ‑ ‑ ‑

GLEESON CJ:   There was an unusual feature of this matter, was there not, in relation to the course that the proceedings took and the delay in delivery of judgment?

MR HOEBEN:   In that regard, your Honour, the proceedings occurred over five days and there was a 12‑month delay between the addresses and the judgment.  That does not feature in the Court of Appeal decision.  They deal with the delay; they talk about the delay, but it does not seem to have influenced what they did at all.

Your Honours, if I could perhaps take you then to the application book, because there are really only six paragraphs in the Court of Appeal judgment with which we are concerned.  Could I ask your Honours to go to the application book, page 49.  This is where, if you like, Justice Heydon gave the leading judgment, with which judgment the other two judges agreed, but starting at paragraph 25 what his Honour said there, and we do not criticise that, is:

The factual inquiry confronting the trial judge was potentially an extremely difficult one because of the lack of direct witnesses –

He goes through to summarise the competing positions:

The respective credibility of the plaintiff and the defendant thus became crucial.  The plaintiff’s version was confirmed by his near contemporary account to his wife of what had happened.  The defendant’s version was confirmed by his near contemporary account to Senior Constable Mood –

Paragraph 26:

The trial judge summarised the evidence of the witnesses.  She said she preferred the evidence of the defendant and Miss Dunn to that of the plaintiff, his wife and his son.

Miss Dunn being an independent witness who was driving some two car lengths behind the defendant.  Then at paragraph 27 ‑ this is where, your Honours, we would say the error is starting to emerge in the approach:

Though the trial judge preferred the evidence of the defendant and of Miss Dunn to that called by the plaintiff, she did not deal with two aspects of the defence evidence.  The first was Miss Dunn’s concession quoted above.  The second was that though the trial judge devoted considerable attention to the deficiencies in the plaintiff’s testimony she said nothing specific one way or the other about the defendant’s.  Yet the defendant had conceded that his log book –

was false.  His Honour develops that and at the bottom of that paragraph:

If the log book were correct, the opportunities for sleep would be reduced –

and his Honour develops that.  That is, if you like, a posing of the problem.  It is not picked up again, your Honour, and it is not resolved by the Court of Appeal until application book, page 64, if your Honours could go to that, and that is really the nub of our complaint, what occurs at page 64 and, in particular, paragraphs 53, 54 and 55.  What his Honour says at application book 64, at paragraph 53:

The case boiled down to a contest between the reliability and credibility of the plaintiff and the reliability and credibility of the defendant.  The defendant could point to –

and he outlines the competing points of view, starting at about line 32, your Honours:

In her reasons for judgment the trial judge has informed the plaintiff of some reasons why she rejected his evidence.  Though some of those reasons are more forceful than others, what matters is how that reasoning relates to the defendant.

We take issue with that for reasons which we will develop.

The trial judge did not say why she “preferred” the evidence of the defendant.  Before this  Court, the defendant contended that once the trial judge had rejected the plaintiff as a witness, it was simply unnecessary to deal with the defendant, or, alternatively, that there was less need to give detailed reasons for accepting the defendant.

We adopt that, rather than the other –

The difficulty with these contentions is that there was an inversely proportional relationship between the parties in point of creditworthiness.  Even if, considered by himself, the plaintiff might be thought to lack credit in some ways, that conclusion could be overcome if the defendant was not capable of acceptance, because that circumstance would of itself tend to strengthen the plaintiff.

McHUGH J:   That is a curious proposition.

MR HOEBEN:   That is an extraordinary proposition.  That is our second complaint.  I will come to the adequate reasons first, but we, with respect, say that involves heresy of a fairly major kind.  That is our second point, with respect, your Honour, so if I can just deal with the adequate reasons point first:

To “prefer” one item over another is to reach a comparative conclusion after weighing the merits and demerits of each.  An evaluation of the merits of a conclusion of preference depends on what reasons it rested on.  The failure to give reasons for preferring the defendant was compounded by the trial judge’s consequential failure to deal with the dilemma created by the defendant’s log book.

He goes on to develop that same point:

If the log book were correct, there was reason to believe that the defendant, contrary to his evidence in chief, was short of rest.  If the log book were incorrect –

then you have an effect on the rest of his evidence.  Paragraph 54:

A similar problem exists with Miss Dunn.  Miss Dunn’s evidence in chief, if accepted, supported the defendant’s evidence and the trial judge’s conclusion as to the cause of the collision.  But the concession she made in cross‑examination might – not must - have marginalised her evidence in chief.

The concession she made was, she had consistently said, I think, on three or four occasions, “When I was following, the semitrailer never crossed the centre line.  The only time I saw it move was to move left”, and that was consistent with the defendant’s evidence about trying to move left to avoid a vehicle which he saw crossing the centre line.  However, when it was put to her in cross‑examination that, “You couldn’t see the front of the prime mover?”  “No, I couldn’t.”  “It’s possible that it could have crossed the centre line”.  She said, “Yes, it’s possible”, that kind of concession.  That is the concession to which reference has been made, your Honours:

But the concession did create difficulties, and it is not clear if they were recognised, or, if recognised, how they were overcome.

The difficulties created by the defendant’s log book evidence and Miss Dunn’s concession in turn had to be analysed in relation to the evidence called by the plaintiff which supported the plaintiff’s testimony as to the location of the impact and hence, indirectly, his evidence on the cause of the collision.  No analysis of this kind has been recorded by the trial judge.

These gaps in the trial judge’s reasons for judgment reveal error.

Now, with respect, your Honours, as I say, we have two complaints.  The first is this:  this case specifically raises for consideration by this Court the whole issue of the adequacy of a trial judge’s reasons, but not merely the reasons per se, but the reasons in relation to credit‑based findings.  But what the Court of Appeal did here was to take that issue one step further.  They do not seem to have been concerned about the adverse credit findings made by the trial judge in relation to the plaintiff.  They accept those and they accept they were correctly based.

They take the responsibility of the trial judge one significant step further.  The trial judge now not only has to comprehensively analyse the plaintiff’s evidence and explain yes or no, why it is accepted or why it is rejected.  You then have to look at the defendant’s evidence and, by implication, other witnesses, if necessary, and go through those and explain any other difficulties in relation to that evidence if you are going to make a credit finding in relation to that witness, be it the defendant or any other witness, and whether you accept that witness or not.

Now, with respect, we say, your Honours, that is something entirely new.  We say it goes contrary to any analysis that has ever been carried out by this Court and I should say, your Honours, in relation to the special leave point, we have been unable to find a case where this Court has specifically looked at the issue of reasons and the adequacy of reasons.            The Court has often said you have to provide reasons and ‑ ‑ ‑

GLEESON CJ:   Well, you do not judge the adequacy of reasons by their length.  If that were the test, these reasonings of the trial judge were certainly more than adequate, but I thought that the Court of Appeal was complaining that there was a problem about comprehensibility.

MR HOEBEN:   Your Honour, firstly, they do not complain about the rejection of the plaintiff.  They say she virtually did not deal with why she accepted the defendant.  Now, we first make a point, your Honour, that reasons do not have to be in such detail that you chase – and I hope I am not doing an injustice to the judgment of Justice Heydon – every rabbit down every hole.  If there is a problem in a witness’ evidence you do not have to pursue – or a number of problems – every particular problem.

It is sufficient, we would say, once you have analysed in detail the principal witness, which in this case is the plaintiff, to say, “I accept the defendant and I accept it for a number of reasons”, and that is exactly what she did.

The other issue that we raise, your Honours, is this, that the two particular matters that were referred to by the Court of Appeal are, with respect, peripheral.  The question of the log book entry, the truck driver said, “Look yes, it’s a false entry and the reason I made it a false entry is because if my load was ready to go in the morning I wanted to be able to take off straightaway and if the police looked at me I wanted to indicate I’d had some sleep”.  To suggest as one of the alternative arguments that fatigue might have affected his driving this night when he was 20 minutes into the journey is, with respect, extraordinary.

The second issue about the evidence of Miss Dunn, it is expressed in terms of possibilities, your Honour.  Yes, that is possible, but the whole burden of her evidence was quite to the contrary.  What we say, your Honours, is that she did, in fact, give reasons and if I could, perhaps, take your Honours to the reasons she gave.

GLEESON CJ:   Yes.

MR HOEBEN:   They are at application book 28.  We would say they are sufficient.  If your Honours look at application book 28 about midway down the page, point 25:

The evidence of the one true independent eye witness Karen Dunne –

and she reviews that evidence, and then if your Honours look at the next paragraph:

This is of course consistent with the evidence of the defendant, that he first saw the headlights –

so the first reason she offers is the independent witness’ evidence is consistent with the burden of his evidence.  She then goes on to review the defendant’s evidence, your Honours, over to page 29 and if your Honours go down to then about point 26 on the page:

The evidence of course –

that is, the evidence of the defendant –

sits more comfortably with the description of the location completed on behalf of the plaintiff in February 1996, two months after the accident, than with the reconstructed versions now relied upon –

That fits in with her attack on the plaintiff, because, your Honours, there was a recent invention attack put fairly and squarely on the plaintiff which was never answered.  Another reason why she supports the defendant’s version is his version fits in with the first version given by the plaintiff.  So there is a second reason, and her final justification, your Honours, is over the page at page 30.  This is not as powerful; it is at about point 25:

The defendant and Miss Dunne were in the best position to observe what took place –

but she talks about that in a context of the expert.  So, your Honours, there were reasons given.  They do not have to be comprehensive, particularly when her attack on the plaintiff was so destructive.

Now, your Honours, that then brings us to our second attack and that is the proposition to which I took your Honours at the bottom of application book 64 in paragraph 53 where his Honour Justice Heydon said, about six lines from the bottom:

The difficulty with these contentions is that there was an inversely proportional relationship between the parties in point of creditworthiness.  Even if, considered by himself, the plaintiff might be thought to lack credit in some ways, that conclusion could be overcome if the defendant was not capable of acceptance, because that circumstance would of itself tend to strengthen the plaintiff.

Now, with respect, your Honours, it is true that the trial judge did say she preferred the evidence of the defendant, Miss Dunn, to that of the plaintiff and you will recall that in the Court of Appeal judgment, his Honour deals with this question of preference and the balancing.

Now, with respect, your Honours, that is a step, if you like, or a phase in the reasoning process.  It is not the ultimate question.  What his Honour has done is to raise that to the ultimate issue.  The ultimate issue was, your Honours, whether or not the plaintiff had satisfied the onus of establishing that the semitrailer had crossed the particular median.  That is the ultimate question.

This other one is a preliminary question but it has been raised in paragraph 53 to the ultimate question and, in fact, what his Honour has almost done, and very, very close, has reversed the onus of proof, in fact, or has taken no account of it because his analysis of the concept of preference, prefer one to the other, while linguistically correct, your Honours, is not legally correct in the sense of the test.

It is significant, your Honours, if you went to page 29 of the application book to see exactly what her Honour did do.  Having carried out the analysis, if you like, of preferring one to the other, when she finally came to make her decision she, not coincidentally, we would say, expressed it fairly and squarely in terms of onus.  At point 35, your Honours:

It is trite to say that the onus is upon the plaintiff to establish on the balance of probabilities that there was a want of due care and attention on the part of the defendant.  In the particular circumstances of this case I am not satisfied that the plaintiff has established on the balance of probabilities that the defendant was negligent as alleged.

Then she repeats that, your Honours, at application book 30 on the bottom of the page:

the plaintiff has failed to discharge the onus –

In a sense, your Honour, that proposition that we are putting can be tested by this analysis:  even if the defendant was not there, if he had died in the accident, her Honour would still have been entitled to find against the plaintiff because she simply did not accept him and he simply had not established the onus.

She did, in fact, take that extra step and analyse the evidence of the defendant.  She looked at the way it corresponded with the only independent witness.  She looked at some other aspects which I have taken

your Honours to.  Should she have gone further under pain of error of law?  The Court of Appeal said she should have.  What we say, your Honours, is that analysis in those six paragraphs I have taken your Honours to involves an error in relation to the giving of reasons of a substantial proportion.  It also involves a misunderstanding of the legal onus.

When this Court, in a number of other decisions, is looking at the whole concept of a common law general to Australia and what judges should be doing in applying that common law, it is particularly dangerous to have a decision like this, from an intermediate appellate court, sitting uncorrected and what we say is the decision is wrong in its approach.

It is wrong in the way in which the obligation is imposed on trial judges to provide reasons and leave ought be given so that that can be corrected and some guideline, if you like, can be given to trial judges as to exactly what is required for adequate reasons to be given, particularly where you have, if you like, substantially rejected just about everything the plaintiff has said, how much further does one have to go when the essence of the findings are credit based.  That is the basis of our application.

McHUGH J:   The Court of Appeal in New South Wales spoke about that in Soulemezis’ Case.

MR HOEBEN:   I am sorry, I am glad your Honour mentioned that.  The only case which deals with this is Soulemezis and even that case has its difficulties because, if you recall, your Honour and Justice Mahoney were in disagreement on – the pronunciation has beaten me, your Honour, Selvanayagam v University of the West Indies.  It was a Privy Council decision in which you took one view.  You united on your approach to that case, but there is a problem there and, of course, the added complication with Soulemezis is that it was dealing with a Compensation Court appeal on point of law and so it really did not provide the opportunity to analyse the giving of reasons where the basis of appeal is broader.

We would submit, your Honours, it is now time, given the way in which the New South Wales Court of Appeal is looking at this whole idea of providing reasons, for this Court to say this is what adequate reasons involve where you have a full right of appeal such as here.  They are our submissions, your Honours.

GLEESON CJ:   Yes, Mr Rayment.

MR RAYMENT:   If your Honours please.  Your Honours, we submit that where you have a trial judge who takes 12 months to give a reserved judgment and where there are significant matters at the trial which require to be considered in the evaluation of the respective credibilities of plaintiff and defendant, when the trial judge fails to refer to those matters it can be properly said that the case is appropriate for a new trial.

McHUGH J:   But supposing she had not said a single word about the defendant’s case, but just analysed the plaintiff’s case and said, “I’m not satisfied on the balance of probabilities that the accident happened as the plaintiff said”.  What would be wrong with that?

MR RAYMENT:   Her Honour did not say that.  Her Honour preferred the evidence of the defendant and therefore used it as a reason for rejecting the plaintiff’s evidence, rather than saying, “By itself, the plaintiff’s evidence, taken alone, doesn’t satisfy me of anything so I dismiss the case”.  Her Honour said, “I compare the respective versions of fact of the plaintiff and the defendant and I prefer that of the defendant” and then she adds that the onus requires her to deal with the case in that way.

But the important part of her reasoning process is that the one is to be preferred to the other and then when you look at the evidence, which the defendant gave in this matter, and our learned friends have put on some additional application books about this, it is not dealt with in great detail in the Court of Appeal’s judgment for the reason that their Honours took the view that they should not say too much about the facts because, according to their reasons, it was going back for a new trial.

But if you look at it in volume 1 – I just want to go to this briefly – of the supplementary application book, cross‑examination of the defendant occurs at pages 106 and a couple of pages before then, but at the top of page 106 he is asked why his log book says one thing and his evidence said another.

Now, the log book had this degree of importance.  According to it, he left the city of Melbourne at 3 o’clock, stopped in Albury for two hours on the way up, then stopped in Yass for two or three hours and then came on to Sydney and arrived at 5.30 am.  According to it, he had arrived in Melbourne on the Monday morning at about 2 am, suggesting that there were probably a series of interstate journeys that he had been undertaking in his truck.  Then at the top of page 106 he was asked why he had the wrong version if his evidence to the court was to be believed in the log book and gave his first explanation that it was so that his employer would not send him straight out again.  That is at line 10.  Later on the page the evidence is given that it was to make sure that the police got the wrong impression about whether he had had breaks.  That is line 45.

Your Honours, this gentleman had said in‑chief, and the judge sets this out in her judgment, and, indeed, makes a finding about it, that what he saw occurring when he had this collision was this.  About 100 metres away from him he saw, he said, the plaintiff’s car beginning to drift across the road on a straight patch of road outside the golf house.

So you have this idea of the car slowly drifting across the road.  He hopes it is going to correct itself, then he finds that it is too late, that it is not going to correct itself so he is going to have the collision so he moves over to the side.  That is what he said in‑chief.  If you then look at the statement which he gave contemporaneously about the same issue, and her Honour does not deal with this at all in her reasons – it is in supplementary book 2 at page 158 at the foot – what he there has occurring is, almost immediately before the collision, suddenly the plaintiff’s vehicle coming across the road.

GLEESON CJ:   Where is that?

MR RAYMENT:   Just below line 40.

GLEESON CJ:   On page?

MR RAYMENT:   Page 158.  He says:

I was probably in about 8th gear.

This is describing the progress of his drive along the road –

It was about 200 feet from me when I first became aware of it.

That is the car coming towards him.

I didn’t take much notice, I was travelling about two feet from the double lines.

That would mean he would be taking up most of the middle lane, because he is a wide truck.

The next thing I noticed he was coming across the double lines towards me.  He came over on about a 30 degree angle.

That is not drifting, that is suddenly coming across on a 30 degree angle.

It was going pretty quickly.  He was only about 20 to 30 feet away from me at this stage.

That is rather different from 300 or 400 feet comprised in 100 metres and a slow drift.  So, you had on the face of it, if you were going to prefer his evidence, a rather stark – and he was cross‑examined on it – conflict between what he said, at the time, happened and what he said in the witness box, happened.

Another matter was this.  Between these parties there was a significant difference about where this collision occurred.  The plaintiff said that it happened some distance from the golf house on a corner.

McHUGH J:   That was entirely inconsistent with the version he first gave in the claim form.

MR RAYMENT:   Be it so, or not, it was not inconsistent with other matter such as, for example, the evidence that he gave of what he told his wife and also, your Honour, there were some other remarks made both by the defendant and the independent witness about the place of the collision, not just the question which is referred to expressly in the Court of Appeal’s judgment, the question whether she could see what was happening.  She conceded, on one view of her evidence, that she could not see what was happening anyway.

McHUGH J:   I have to say, as an old style common lawyer, this idea that statements that you make out of court can bolster your case is something that I find very difficult to deal with.

MR RAYMENT:   Yes.

McHUGH J:   What you tell your wife can be used as evidence to confirm your evidence.

MR RAYMENT:   Yes.  In any event it was received and apparently rejected by the judge.  The defendant says, clearly enough, that this happens in front of the golf house on the straight.  The witness, in the conclusion of her cross‑examination, gives an answer which may well suggest agreement with the version contended by the plaintiff.  It is in supplementary book volume 1 at page 175 towards the end of her evidence.  She is asked when she first saw the sparks.  The sparks are occurring as the truck collides with the Commodore and the point at which she is asked – at line 40 – whether she can remember first seeing the sparks is at the point identified by the plaintiff as the point of collision, that is at the intersection of Wolli Street and Stoney Creek Road and her answer is:

Don’t know, don’t know the name of the street.

Now, that was capable of meaning that she did not know the name of the street, but agreed with the point of collision suggested by the plaintiff.  That was another thing that would need to have been resolved, we would submit, if one was giving reasons indicating that one had attended to the evidence.

The procedure of the learned judge was to give a judgment orally referring, for the most part, to evidence‑in‑chief of a number of witnesses and, for the most part, not to their cross‑examination, except in a case of one of the experts.  She does not say one way or the other that she had a recollection of any question of demeanour when she gave her judgment.  She rather refers to the evidence that was given.            We would submit that with a judgment this long after the event, what the Court of Appeal had said in the judgment  ‑ ‑ ‑

GLEESON CJ:   May I ask you, when was the transcript of the evidence at the trial taken out?

MR RAYMENT:   It seems to have been later.  I think there is a reference to it in Justice Heydon’s judgment fairly early on.

GLEESON CJ:   I am asking, really, because I want to know whether the trial judge, when she came to give her reserved judgment, had a transcript of the evidence available to her, or whether the transcript was only taken out for the purposes of the appeal.

MR RAYMENT:   I think her Honour had the transcript.  I just have to be reminded about this, your Honour.  The judgment is 6 March and I think, early in the judgment of Justice Heydon, reference is made to April.  Sorry, this may just take a moment, your Honour.

GLEESON CJ:   Perhaps you could go on with your argument while your junior is checking it.  It is just sometimes misleading to assume that District Court judges have transcripts available to them.

MR RAYMENT:   Yes.  This was a year after the judgment was reserved, so if not, then the transcript took an extraordinarily long time.  There was an examination – I am sure my learned junior will find it.

GLEESON CJ:   No.  Sometimes transcripts are only taken out when there is an appeal.

MR RAYMENT:   I see.

GLEESON CJ:   They are taken out for the purpose of an appeal.  I am not saying it happened in this case.  I have no idea.  All I say is that, from my experience, it can be dangerous to assume that District Court judges have transcripts of evidence available to them when they give their judgment.

MR RAYMENT:   Yes, quite.  Quite.  My learned junior tells me that his recollection is that there were no transcripts available up to the time of giving judgment, if your Honours please.

GLEESON CJ:   That would not be unusual.

MR RAYMENT:   Your Honours, if you are going to give a summary saying, “I prefer X to Y” and it is so long after the events have occurred, and you do not refer to the critical matters which will affect such a preference; moreover, you do not refer to critical matters which might amount to admissions of the contrary position in the defendant’s own statements, we submit that the Court of Appeal must have been right to order a new trial and this is a very inappropriate vehicle, therefore, we submit, having regard to the length of time in any event between reserving a judgment and giving of it, quite apart from any other matter, to consider the question which the other side propound, that is to do with the need to give reasons.  We would submit that the reasons were inadequate in any event, but the question is, we submit, all the clearer having regard to the delay between reserving judgment and giving it.

GLEESON CJ:   Can you help us on that, Mr Hoeben?  Did her Honour have a transcript of the proceedings before her when she gave her reserved judgment?

MR HOEBEN:   My learned junior is not sure.  He thinks he may have had some transcript when he addressed but he is just not sure about that, so rather than mislead the Court ‑ it looks like she did have the transcript.  If your Honours look at page 23 of the application book about eight lines from the bottom she seems to refer to the transcript. 

MR RAYMENT:   There is a reference at the top of page 60 to it that I had in mind.

MR HOEBEN:   It looks like she had it, your Honour.

MR RAYMENT:   Mr Justice Heydon says that:

no transcript was available of the hearing on 14 March 2000 until perhaps as late as 17 April 2001 –

which was after judgment.

MR HOEBEN:   She may have had part of the transcript and that, perhaps, is the explanation.

GLEESON CJ:   I just want to read what is at the bottom of page 59 and the top of page 60.  Now:

The trial judge quotes from the transcript . . . but it is not clear when any transcript was produced:  it seems that the transcript of the August 1999 hearing days was not available until late October and no transcript was available of he hearing on 14 March 2000 until perhaps as late as 17 April 2001.

What happened on 14 March?  Who gave evidence on 14 March?

MR HOEBEN:   Mr Hazel, the expert, your Honour.

McHUGH J:   The judge’s judgment was on 6 March, was it not?

MR HOEBEN:   This was the next year, your Honour, the next year.

McHUGH J:   That was the next year.

GLEESON CJ:   It was 6 March 2001.

MR HOEBEN:   On 14 March, Miss Dunn and Mr Hazel, your Honour, gave evidence.

GLEESON CJ:   Right.  So when the judge gave her judgment in March 2001, she did not have the transcript of the proceedings in March 2000 at which those witnesses gave evidence.

MR HOEBEN:   Yes.

GLEESON CJ:   That seems to clarify it.  Yes, Mr Hoeben.

MR HOEBEN:   Your Honours, in response, I would simply say if the principle in Abalos is to be modified by delay in giving judgment, that is another reason why special leave should be ‑ ‑ ‑

GLEESON CJ:   It is not just a question of giving delay in judgment, Mr Hoeben.  I have had some opportunity to see in the past what goes on in relation to these things.  Here was a judge who conducted a hearing in August 1999 and then in March 2000 and then gave a judgment in March 2001 and when she gave her judgment in March 2001 she did not have available to her a transcript of the evidence that had been given in March 2000.  It is not just a matter of the delay.  It is a matter of the circumstances under which judgments are produced.

MR HOEBEN:   Quite, your Honour, but what I am saying is if those matters are to affect, presumably, the notes which the judge must have made because the whole judgment is redolent of impressionistic findings, if that means that the principle, as has been outlined by this Court, perhaps not followed, in Abalos is to be modified by those circumstances then I would simply reiterate the proposition it is another reason why special leave should be given because this does raise a very special and important issue.

McHUGH J:   This case might be rather unique, might it not?  Given the structure of the trial judge’s judgment it was open to the Court of Appeal to hold that she approached it on the basis that the defendant’s evidence should be preferred to that of the plaintiffs rather than simply relying on the intrinsic unreliability of the plaintiff’s case and, if that were so, why was it not open to the Court of Appeal to conclude that those matters that affected the credibility of the defendant and his witness should have been examined and referred to by the trial judge?

MR HOEBEN:   Your Honour, the trial judge deals with that at application book 21 and it is really not as far reaching as the Court of Appeal would have it.  What she says ‑ ‑ ‑

McHUGH J:   I know.  At 30, she says:

My findings concerning the accident are based upon the following.

Then she jumps in –

The evidence of the defendant, and the independent witness Karen Dunne is to be preferred to that of the plaintiff  ‑ ‑ ‑

MR HOEBEN:   But when she comes to make the fundamental findings, your Honour, she does say ‑ ‑ ‑

McHUGH J:   I know, yes, that is right at the end.

MR HOEBEN:   Indeed, and, with respect, that is an appropriate approach, having made those findings and we would say, with respect, your Honours, this is the ideal vehicle for this whole issue of adequacy of reasons to be dealt with by this Court.

GLEESON CJ:   Given the structure of the trial judge’s judgment and the fact that it appears that she approached the case on the basis that the defendant’s evidence should be preferred to that of the plaintiff rather than simply relying on the intrinsic unreliability of the plaintiff’s case, it  seems to us that it was open to the Court of Appeal to conclude that the trial judge should have examined matters that affected the credibility of the defendant and the reliability of the supporting witnesses’ observations.

We do not see the reasons of the Court of Appeal as laying down any general principle concerning the manner in which a trial judge should deal with the evidence of a particular party in a particular case.

The case does not appear to us to be an appropriate vehicle to consider the issue of principle which the applicant seeks to raise, and the application is refused with costs.

We will adjourn for a short time to reconstitute.

AT 12.08 PM THE MATTER WAS CONCLUDED