Robinson v Government Insurance Office of NSW

[1994] HCATrans 147

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney        No S99 of 1994

B e t w e e n -

DAVID IAN ROBINSON

Applicant

and

GOVERNMENT INSURANCE OFFICE OF NEW
  SOUTH WALES

Respondent

Second Respondent
  Application for special leave to
  appeal

MASON CJ
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 DECEMBER 1994, AT 10.15 AM

Copyright in the High Court of Australia

MR M.S. JACOBS, QC:   I appear, together with my learned friend, MR A.S. KOSTOPOULOS.  (instructed by Forshaws Neill)

MR D.F. JACKSON, QC:   I appear with my learned friend, MR H.N. KELLY, for the respondent.  (instructed by Audrey Balla)

MASON CJ:   Yes, Mr Jacobs?

MR JACOBS:   For Your Honours’ assistance and for the sake of brevity we have made a short summary of the two points we want to emphasise.  May I have Your Honours’ leave to give Your Honours an additional note?

MASON CJ:   Yes.

MR JACOBS:   I think this will probably save some time.  The first point we make is that the first question is whether or not one of the established principles which Warren v Coombes held at the page referred to, the Court of Appeal could properly apply pursuant to section 75A(5) of the Supreme Court Act in appeals to the Court of Appeal, namely, that in general ‑ and Your Honours know that test so I will not read it ‑ whether that has any role to play in resolving conflicts in judgments of the primary court of the nature which admittedly took place in this case.  That is the first point.  In His Honour the honourable Mr Justice Clarke’s judgment, in which Justice Sheller concurred, that judgment is predicated upon an affirmative answer to the question in paragraph one above.  His Honour Mr Justice Kirby held that it was an inappropriate mechanism in law for the resolution of such conflicts and would not result in justice being done.

GAUDRON J:   Must your propositions, though, give way to the facts of the case?  Must it not all depend on the circumstances in the case?

MR JACOBS:   In our submission, no.  We say that once there is a conflict of this nature, then as the President, His Honour Mr Justice Kirby held, this mechanism is inappropriate ‑ ‑ ‑

GAUDRON J:   What is “of this nature”?

MR JACOBS:   Where there is a conflict in the judgments, and more particularly where the trier of facts findings appear in the latter judgment and they are based not only on secondary facts but also primary facts.

GAUDRON J:   What if they proceed from a clear error?

MR JACOBS: We say it makes no difference. To our first point it makes no difference. The mechanism, we say, is inappropriate. Once the mechanism is inappropriate for the resolution of that type of dispute, the matter must then go back. There must be a retrial. So we say that upon a true construction ‑ and this is our primary submission ‑ of section 75A(5), as His Honour Mr Justice Kirby held, this mechanism is totally inappropriate whether or not one has to have resort to primary or secondary facts in order to resolve the dispute. So we say this goes to the construction of section 75A(5). That is our first point.

We say that this is the approach that His Honour Mr Justice Kirby took.  He held that this mechanism was totally inappropriate for the resolution of this kind of dispute, whether or not one had resort to primary or secondary facts in order to resolve the conflict.  If we can just take you to paragraph 3 of the summary, we summarise in the second part what His Honour Mr Justice Kirby appears to have held, and we say that he observed correctly that to achieve the result in a majority judgment it was necessary to disturb the final holding of the master on the facts and his impressions of the witnesses in both cases, not only the one but in both.

It is respectfully submitted that in this regard the judgment of the majority was infected by a fundamental error of principle because the mechanism is just not available upon a true construction of 75A.

The appropriateness of the application of the mechanism adopted by the majority, we make the submission, is not only of significance in New South Wales but it is of significance in regard to the other States and Territories and we respectfully point out other legislation where there are similar provisions.  So, we make the submission that it is an important point.

We say in the premises this Court’s attention should, with respect, be attracted to this case so that there can be a definitive decision on the important differences in the approach between the President of the Court of Appeal and the other honourable judges.

The next point which is sought to be emphasised is that in His Honour Mr Justice Clarke’s judgment, we say that that is predicated upon the correctness of his holding that it is proper for a Court of Appeal in resolving such a conflict within the powers conferred upon it under the said sections that they can safely divorce primary and secondary facts in a manner such as this, as His Honour did at page 66, lines 15 to 20.

The master’s holding in the Sbeit case incorporates his findings in the Robinson case.  May we just pause here for a minute and take Your Honours to page 39 of the application book.  It starts really at the foot of page 38 but, more importantly, at the top of page 39 where the master says in the Sbeit case, which is now the second case:

I refer to the evidence and the findings set forth in the judgment delivered in proceedings No -

that was the Robinson case -

Evidence and findings set forth therein have been relied on in the determination of these proceedings.  I see no need to repeat them again in this judgment. 

Now, the evidence and the findings in the first case were evidence both in respect of primary and secondary facts.  That this is clear is so from the same page, 39, from about lines 12 to 16 where the master says: 

My impressions of the various witnesses are set forth in the other judgment. 

So, clearly, he is talking about matters of credit.

Although some of his evidence was unreliable.....Generally speaking, I have preferred his evidence to that of Mr Robinson and/or Constable Mudie.  

So, it is clear that all of the primary facts and all questions of credit in the Robinson case now find their way into the master’s decision in the Sbeit case. Our submission is that it is totally inappropriate, as the Court of Appeal did, to try and divorce the primary and secondary facts. They were so intermingled and so interwoven that this is an appropriate mechanism, and we say that section 75A(5) cannot be used in that manner as a matter of construction of that section.

Now, in paragraph 8 our submission is that it follows that the majority erred in holding that the Sbeit case could be reassessed by them by reference to the secondary findings of fact only and unless that proposition is wrong, the judgment of the Court of Appeal, in our respectful submission, cannot stand. 

The principle which should attract the attention of this Court, with respect, is whether or not the powers conferred upon a Court of Appeal under section 75A(5) of the Act or similar legislative provisions can be employed to determine and resolve disputed findings based, in part, if not entirely, on findings of credit.

MASON CJ:   Do you dispute that section 75A can be used in relation to secondary findings of fact?

MR JACOBS:   Yes, in appeals.

MASON CJ:   Why is that?  Why does not 75A extend to secondary findings of fact?

MR JACOBS:   We concede, in an ordinary appeal to a Court of Appeal, a Court of Appeal can decide the facts themselves provided the objective facts are established and draw their own inferences.  I have no argument with that.  But I say that that mechanism which ordinarily applies in the ordinary appeal has no application to the resolution of a conflict in judgments.  That is the first point.

MASON CJ:   But why does it not apply to a conflict in judgments as it does apply in other cases?

MR JACOBS:   Firstly, as a matter of construction, the section was never designed for that purpose.  This is the first point we take, and here we say that Kirby P, with respect, was correct.  His Honour did not differentiate between secondary and primary findings of fact.  His Honour painted with a broad brush and a true construction of His Honour’s judgment is simply this:  that whether or not the question is to be determined by either primary or secondary facts, the mechanism is not an appropriate mechanism for the resolution of conflicts in judgments.  That was His Honour Mr Justice Kirby’s approach which we adopt, with respect.  That is our first point.

MASON CJ:   But I do not quite follow that at the moment.  Let us assume that there was a plain error as between the two judgments; in other words, the inconsistency was to be explained by reference to plain error.  Would not 75A apply to such a case?

MR JACOBS:   In our submission, no, Your Honour.  We say that upon a true construction of 75A(5) the answer to that is in the negative.  That is our first point.

If we are wrong in that, we say there was no such plain error in this case and that Clarke J’s judgment is predicated upon an assumption that one can divorce the primary from the secondary facts.  Where no such plain error is shown up because the matter depends upon issues of credit - and I think I have shown Your Honours that the issues of credit in the first case are now taken into the second.  These are ignored altogether by His Honour Mr Justice Clarke.

GAUDRON J:   But the inconsistency really comes down to a secondary finding that has got nothing to do with the earlier findings about credit.

MR JACOBS:   With respect, no, Your Honour.

GAUDRON J:   There is a finding about the facts of the accident.

MR JACOBS:   Yes.

GAUDRON J:   Which is based on credit.  And then, having found the facts of the accident, there is a finding as to contributory negligence which is really quite apart altogether from anything.

MR JACOBS:   With great respect, Your Honour, we say that one can only determine questions of negligence and contributory negligence if one first assesses and determines questions of credit.  The anterior finding relates to questions of credit.  Because right throughout these two judgments there is a golden thread and that is that Robinson and Mudie are not to be believed as creditable witnesses, and this goes right through both judgments.  You cannot, in this case, say we ignore that and we then say that from the other facts that have been found we can draw inferences.  You do not get to the stage of drawing inferences unless you disbelieve Mudie and Robinson.

There was no basis upon which the Court of Appeal could have found that Mudie and Robinson had to be disbelieved because their credit was infected unless the Court of Appeal had seen those witnesses and was able to assess their evidence. We say that, with great respect to His Honour Mr Justice Clarke and Mr Justice Sheller, where they confine themselves to inferences only and ignored the anterior findings on credit upon which the findings of the inferences were based.....and section 75A(5) cannot be used for that purpose. Their judgment is not consistent then with what this Court held in the Warren v Coombes case.

So, in answer to Your Honour shortly, no, with respect, that cannot be done very simply because one cannot find the further facts from which to draw inferences and, at the same time, disregard questions of credit because the findings of fact are predicated upon the findings of credit.

I do not know whether Your Honours would be helped if I were to show Your Honours some further passages in the two judgments.

MASON CJ:   That is a matter for you, Mr Jacobs.

MR JACOBS:   I have referred to them in paragraph 7.  Perhaps I could just run through them quickly.  If I can take Your Honours to application book 24 and just give Your Honours these references very quickly:  paragraphs 15 to 20, from the words, “The extensive conflict” up to the words “which confront the Court.”  Then page 26 - if I may take Your Honours to that - lines 20 to 25, where the master says:

However, the plaintiff’s unreliable evidence on this matter may provide a further indication of the weight or credibility that should be given to his evidence.

Then to application book 27 at about line 15:

I am unable to place much weight on the evidence given by either of the plaintiff and Constable Mudie.  Both have given unreliable and inconsistent evidence.  I am unable to conclude that one version is more probable than the other.  I am unable to accept either version.

Questions of credit.  Again, if I can take Your Honours to page 28, lines 15 to 20:

In some respects, he was an impressive witness.  He can be regardless an independent witness.

So the “impressive witness” is a question of impression credit; demeanour perhaps.

It could be expected that his attention was attracted by all the noise and activity involved in the proceedings.  His attention would have been focused on the activities of the police vehicles.

Essentially questions of credit and the questions of credit are the cornerstones of the findings of secondary facts, and you cannot divorce the two.

My learned junior has just drawn my attention to application book 29, lines 10 to 15:

The diversity of conflict between the witnesses produced a multitude of factual issues, including issues such as the following (which were seen to be crucial):

1.  whether or not, the plaintiff entered Bonds Road from Earls Avenue.

And that is essential as a finding, that is, to build the edifice of the secondary facts, you need that as a foundation.

2.  whether or not, Mr Sbeit had indicated the making of a right-hand turn, and if so, when he made that indication.

GAUDRON J:   Why challenge the master’s findings on these?  They were findings; the majority in the Court of Appeal proceeded on the basis of those findings.  It put a different complexion - - -

MR JACOBS:   Impermissible for them to do so, with respect, because it all was built on the anterior question of credit.  Those are our submissions.

MASON CJ:   The Court need not trouble you, Mr Jackson.

The Court is not persuaded that the prospects of success of the proposed appeal are sufficient to warrant the grant of special leave to appeal.  The application is therefore refused.

MR JACKSON:   We would ask for costs, Your Honour.

MASON CJ:   You do not oppose costs, Mr Jacobs?

MR JACOBS:   I cannot oppose them.

MASON CJ:   The application is refused with costs.

AT 10.34 AM THE MATTER WAS ADJOURNED SINE DIE