Rotadyne Plastics Pty Limited v Suto

[1988] HCATrans 125

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl38 of 1987

B e t w e e n -

ROTADYNE PLASTICS PTY LIMITED

Applicant

and

ANTE SUTO

Respondent

Application for special leave
to appeal

MASON CJ DAWSON J

TOOHEY J

Rotadyne

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 JUNE. 1988, AT 11.46 AM

Copyright in the High Court of Australia

SlT6/l/PLC 1 10/6/88

MRS. MOTBEY:  May it please the Court, I appear for the

applicant in this matter. (instructed by Rishworth

Dodd & Menczel)

MR C. HOEBEN:  May it please the Court, I appear for the

respondent. (instructed by Beston & Riordan)

MASON CJ:	Mr Motbey.
MR MOTBEY:	Thank you, Your Honour. Your Honour, if I could

have leave at the outset to hand up four bundles of

statutory and other material?

MASON CJ: Yes. Is this designed to frighten us so that we

should refuse the application?

MR MOTBEY:  It is designed primarily to supplement material

in the application book, Your Honour. -

If Your Honours could, perhaps, begin by going to

pages 3 through to 6 as numbered in the bundle of

supplementary material. It might be noted, Your Honours,

that my learned friend does not oppose my relying upon

those further materials as, as it were, evidentiary

materials in the application. They are, in fact, the

draft notice of appeal which is referred to in the

affidavit in support of the application at page 3, 1.6,

and the affidavit of Dr Millons also referred to

at page 3 of the application book, l.S(b) and they are

both materials that were before the Court of Appeal.

Your Honours, the applicant submits that there are

raised in this application two important issues of

appellate procedure and related questions of statutory

construction in relation to appellate procedure.	In the
bundle of supplementary material, page 1 sets out

section 75A of the SUPREME COURT ACT which applies in

relation to appeals in the Supreme Court, subsections (7),

(8), (9) and (10) are the subsections which the

applicant submits ought to be finally and conclusively

interpreted in this Court. They provide, of course,

that on an appeal: 

(7) The Court may receive further evidence.

(8) ..... where the appeal is from a judgment

after a trial or hearing on the merits, the

Court shall not receive further evidence except

on special grounds.

(9) Subsection (8) does not apply to evidence

concerning matters occurring after the trial or

hearing.

(10) The Court may make any finding or assessment,
make any direction for entry ot judgment, or make

any order, which ought to have been made or which

the nature of the case requires.

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Now, the first submission in support of the

application is that properly interpreted section 75A

does not require the demonstration of special grounds
in order to justify the reception into evidence on the
hearing of an appeal of relevant facts arising after

the original hearing. And support for that interpretation

is found most pointedly, I would submit, in the dissenting

judgment of the President of the Court of Appeal in

RADNEDGE's case which is copied at page 7 of the

supplementary materials. That was a case where, at

the rehearing by way of appeal, the plaintiff/appellant

tendered medical evidence as to her medical condition

post-hearing and the question arose as to the admissibility

of that material.

At page 239 of the report and page 240 the President

is reported as having said:

In the end -

this is on page 239F

it is this statutory language to which the

Court must give effect. It should do so,

notwithstanding the principles which were

developed by courts in Australia and in

England prior to the enactment of the SUPREME

COURT ACT, s 75A. It should also do so,

notwithstanding any established past practice,

perceived inconvenience and differing approaches

adopted in different jurisdictions, if that is

what is required as a natural and proper

consequence of due observance of the statutory

language. What is at stake in this proposition

is, ultimately, nothing less than the

obedience of the judges to the will of Parliament

expressed in statutory language.

At page 240 there is further judicial opinion expressed

in support of the statutory interpretation argued for by

the applicant.

MASON CJ:  Mr Motbey, granted that you may have an important

question as to the interpretation of section 75A,

in particular these three subsections, your real

difficulty emerges from the judgment of Mr Justice Mahoney,

does it not, at page 28 of the application book where

he deals with the effect of the evidence, that is, is

there an inconsistency between the film and the evidence

of the plainti~f that was accepted at the trial and the

basis on which the trial judge assessed damages?

MR MOTBEY:  Yes.

MASON f,:,T:  If the-re iR not .i=in. inconsistency, if one cannot draw an interence of fraud, there is really no purpose in '

granting you special leave to appeal. We might set the·

law right but at the cost of your client.

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MR MOTBEY: 

Your Honour, there are three things I would point

to in answer to that argument. Firstly - and this is
perhaps just another example of the measure of judicial
controversy about this part of the law in New South Wales -

at page 20 through to page 24, the learned President

deals in some detail with that question of conflict

between the new material and the evidence at the trial.
Now, His Honour points out at page 20 about point 5:

He claimed at the trial that following the

injury at work he was unable to bend or

lift heavy items. He had restrictions on

the general mobility of his lumbar spine and
that these disabilities and restrictions

contributed to a future economic loss which

was dependent on the physical disabilities

and which was probably permanent.

He referred to some medical evidence; referred to

His Honour's assessment of the facts and then at page 22

says, having recited that the plaintiff got $80,000 for

the future:

This Court has had placed before it two

items of evidence which have come to hand since

the judgment. The first in point of time are

records of the present employer of the opponent

indicating that he secured employment with that

employer in July 1987 and is earning of the

order of between $400-$450 per week net, and

certainly more than he was earning before injury.

The records appear to indicate that the opponent

is in continuous and permanent employment.

MASON CJ:  Now, July was eight months after the trial, was it

not?

MR MOTBEY: Yes.

Secondly, the court has seen a film which

it was informed was taken in August 1987, in

which the activities of the opponent in his

present employment are portrayed. The activities

include fairly extensive portrayals of the

opponent at work. They appear to indicate in

the segments shown that he could bend, apparently
without difficulty; that he could pick up
objects (some of which appeared to be metal

pieces), again seemingly without difficulty;

that he can move about with a degree of dexterity

and ease; that he can. work at a cutting lathe,

bending over to move the metal pieces which he
cut; that he can take wide steps over the metal

pieces; that he can lift and swing the bars

'" whiqh h.~ hAcl. cnt:, .. and. otherwise performing work

whicfi involved frequent and repeated bending and

lifting.

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The most telling segment of the film was a demonstration of the way in which the

opponent bent to pick up, in order to place

it in a tackle, a wheeled trailer. The film

appeared to demonstrate that this activity

required considerable dexterity and no little force on the part of the opponent, yet he was able to do it alone and it certainly indicated

that when the film was taken the disabilities

of which the opponent complained at the trial

were not then in evidence to render him unable

to perform what was by any account an arduous

physical manoeuvre.

Now, at the foot of the page His Honour says:

The essence of the claimant's case was

that had only Grove J had the evidence which is

now available to this Court and which has become

available since the trial, the amount of the

verdict recovered by the opponent would have

been substantially more favourable to the claimant.

And further down at point 30:

The claimant contends that that evidence cannot

stand with the evidence at the trial.

Now, my first answer to the argument is that it is

apparent from the President's findings, having looked at
the film, that His Honour regarded it as arguably patently

inconsistent with the plaintiff's account at the trial

and His Honour would have been inclined, but for the

majority decision in the RADNEDGE case,to permit that

issue to be agitated on appeal. So that there is not

only a conflict between Mr Justice Kirby and

Mr Justice Mahoney about the point of principle which is

important, there is an apparent conflict about the

interpretation of the evidence and on appeal, in my

submission, this Court would be entitled to form its

own.view about the proper interpretation of the evidence

and if the appellant's interpretation was rejected,

w~i1 then, a consequence may follow.

Now, the second answer to the argument is this:

if you look at the bundle of supplementary material it

is apparent, more or less in answer to Mr Justice Mahoney,

at page 4, that the applicant before this court was

intending to agitate before the Court of Appeal an

allegation that the judgment had been procured by

fraud - this is page 4 point 5 - and that on that ground

a new trial ought to be allowed. Page 6 of the supplementary

material is an affidavit of a doctor, a Dr Millons, which

't\Thi~h ~:-:~ :-1 ::::-~ ~ 1.:... .~::.:~j ~c~ ~:: ~-.:u~.:; ·c:::..~mi:-.~tion and which was read to the Court of Appe~l without objection and

contained the evidence that the doctor had looked at all

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the medical reports before Their Honours, had looked at

the film which is sunnnarized partly by the President's

findings, and arrived at the opinion that:

having examined the said film, the plaintiff

could not have truthfully described his

symptoms on consultation with treating and

medico/legal doctors.

Now, my second submission, therefore, is in answer, as it were, to the argument and also in answer, as it were,

to Mr Justice Mahoney that it could not be correct to

find that there was no prima facie case that this man

had got $80,000 by deceit when there was uncontradicted

evidence from a qualified person able to give opinion

evidence that the film could not stand up and was in

the teeth of what the plaintiff had been telling his own

doctors. And the third submission, with respect, in

answer to the argument is that it was connnon ground, and that this was a case where the medical evidence was founded

substantially, if not entirely, upon the acceptance of the

plaintiff's complaints of disability rather than any

demonstrated pathology. So that although I appreciate

that there is a controversy of fact in the matter between
Their Honours, depending upon the outcome of that

controversy the important question of principle is squarely

raised. And if I may also say, as a further submission

in answer to that argument, that even if this Court were

to find that the fresh evidence was not inconsistent with

the plaintiff's case at the trial, which would visit certain

consequences, perhaps, upon the appellant-to-be, none the less,·

the important question of principle can be conclusively

determined as a matter of decision in this case, and should

be .

Now, Your Honours, the second matter of significance -

it is perhaps not so marked as the controversy in

relation to section 75A - concerns the power of the Appeal

Court to, on an appeal, direct a rehearing on the question

of damages or liability in the light of fresh evidence

Their Honours that the proper principle to apply was the	discovered post-hearing. And it was argued by me before
principle propounded by this Court in McOONAlD V McOONAI.D, 113 CIR 529,
a copy of which is at page 17 of the supplementary
materials. Now, before taking Your Honours to some parts of
that report can I say it is the applicant's submission
that where there is fresh evidence after trial which is more
than strongly arguably likely to result in an adjustment of the assessment that has been made, then it is appropriate for the Appeals Court to direct a rehearing under
section 75A(l0) notwithstanding the fact that the matter
was tried without a jury by a judge sitting alone.

.,.,0OH-i:i',Y .I'. When you describ~ that :,as a TJ:1.att-Pr '"'f power, Mr Motbey,

I am not sure what you mean.	Are you speaking of the
existence of the power or the	circumstances in which it
should be exercised or what?

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MR MOTBEY:	Well, probably both, without being evasive.	I can

answer that, perhaps, by referring the Court to

pages 1 and 2 of the supplementary material. Firstly

page 2: section 105 points out that section 106

applies to appeals:

(a) after a trial with a jury in proceedings

in the Court.

So obviously section 106 does not apply to this case.

By statute - and this, to some extent, is a codification

of existing judge-made law - 106 provides that:

(1) Where, in an appeal ..... it appears to

the Court of Appeal that, because of matters

which have occurred since the trial, the

amount of damages awarded at the trial is

manifestly too high or too low, the Court of

Appeal may set aside the verdict -

et cetera.

(2) The Court of Appeal may, if satisfied

that special circumstances exist which render

it desirable so to do, receive evidence as to
matters which have occurred since the trial
and which are relevant to the exercise by the

Court of Appeal of its powers under subsection (1)

and may make findings of fact as to what has

occurred since the trial.

Now, if this case had been tried with a jury as often used

to occur in the cormnon law division in respect of industrial

accidents, and fresh evidence of the sort -as described by the

President in his findings was found, there would have been

a statutory right of appeal under section 106.

Because this case proceeded without findings by a

jury, the only statutory enactment relevant to it is

section 75A - that is at page 1 of the supplementary

materials - and by that section it is provided in

subsection (5):

(5) Where the decision or other matter under appeal

has been given after a hearing, the appeal shall

be by way of rehearing.

(6) The Court shall have the powers and duties

of the court ..... from whom the appeal is brought .....

(a) amendment;

(b) the drawing of inferences and the making of findings of fact; and -

making assessments. And then subsection (10):

( 10) . The Court m'ay 'make any finding or assessment,

make any direction for entry of judgment, or make

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any order, which ought to have been made or

which the nature of the case requires.

It is my respectful submission to this Court that under

the umbrella of subsection (10) the Court is empowered
to dispose of a case like this one in the same way as
section 106 entitles it to do so that as a matter of
discretion a new trial can be ordered on the basis of

fresh evidence.

TOOHEY J:	But was there an argument to the contrary?
MR MOTBEY:	My friend wasrot called upon below.
TOOHEY J:	But that stage can only be reached when the

court is satisfied that the original judgment should

be set aside and then the question arises as to what

should happen.

MR MOTBEY:	Yes.
TOOHEY J:	But that stage was never reached, was it?
MR MOTBEY:	Well, only because we were not permitted to jump over

the first hurdle and agitate the evidentiary impact in a

final way of the fresh- evidence that had been turned up and what I submitted - if Your Honours go to page 23 of

the application book at about 20, the second-last

paragraph:

The claimant suggests that the film,

together with the statement by Dr Millons,

who had the advantage of seeing the film

as we did, indicates that the court below

has been deceived. The claimant relies on .....

COMMISSIONER FOR GOVERNMENT TRAM AND OMNIBUS

SERVICES V VICKERY -

and then the passage is quoted:

"In the case of an assessment of damages this

language is not directly appropriate. But

the rule cannot be less strict. The effect of

the evidence newly discovered upon the

assessment of damages must appear to the Court

to be such that it cannot reasonably be supposed

that, had it been adduced at the trial, the

damages would not have been fixed at an amount

substantially more favourable to the party

seeking the new trial"

Now, my argument was that that was the test that

would apply under a section 75A appeal by way of rehearing

and that it had to be answered favourably to my client on

.t;hat evidentiary material that h9-d been discovered. And

it was further submitted, on behalt of this applicanc,
that the evidence of fraud, the uncontradicted evidence of

fraud in the affidavit of Dr Millons made the right to a

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new trial all the more secure and that was because of the McOONALD

decision, 113 CIR 532, atpage 17 of the supplementary

material. ·The then Chief Justice, at page 532, says:

I agree with his Honour in thinking that the

new evidence proffered on behalf of the

respondent did not justify an order for a new trial on the ground of the discovery of fresh

evidence.

Next paragraph:

But it is not for that reason that I would

give the appellant special leave to appeal. It

is because the manner of expression of the

leading judgment in the Supreme Court raises some

doubt as to the basis on which the Supreme Court

acted and makes it necessary to emphasize

important distinctions to be observed in connexion

with motions for a new trial ....

The discovery subsequent to verdict of

admissible credible evidence, which could not

have been sooner discovered by the exercise of

reasonable diligence in the circumstances, and

which is of such probative value and significance

that, taken with the evidence already given at the

trial, it will in all probability be decisive of

the issues between the parties in a sense opposite
to that of the verdict, is a ground for the

granting of a new trial. If the Court is

satisfied that the fresh evidence fulfils these

requirements, it will generally conclude that,

therefore, the interests of justice demand that

the issues be tried afresh. In that event -

and this is the important passage, in my submission -

the circumstances that the fresh evidence may

tend to support the conclusion that the

verdict was obtained by fraud, or by surprise,

or by subornation of witnesses will not prevent

the grant of a new trial on the ground of the

discovery of fresh evidence, or require the Court
to satisfy itself of the fraud, surprise or

subornation of witnesses as the case may be.

And then, further down on page 533:

the Court may grant a new trial upon a motion

therefor, though a separate proceeding is

clearly the preferable course, if the Court

itself, on a trial of such issues, finds the

fact of the fraud, the surprise or the subornation

of witnesses, as the case may be, to be. proved
to its r:-eas01.1ab-le ::sc1,i..l-s.Zc::1.~i...i:uu. It is not

necessary in that event that the evidence of the

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fraud, the surprise or the subornation, though

it should be "fresh", should be evidence which

would be admissible on the issues between the

parties in the action ..... The Court's conclusion

upon the fresh evidence before it that the verdict

was obtained by fraud, by surprise or that
witnesses were suborned, is sufficient to justify

setting aside the verdict and ordering a new trial.

Mr Justice Menzies is very much to the same effect only,

perhaps, more comprehensively at pages 539 through to

543 and the burden of the decision expressed there appears
to be that if you come across fresh evidence after the

trial which is consistent and suggestive of fraud, you are entitled by motion for a new trial - to have a new

trial on the ground of the existence of that taint of

fraud.

TOOHEY J: Well, is that right, having regard to what

Sir Garfield Barwick said at page 533 in the passage

that you have read us? About mid-way down the page:

if the Court itself -

and that is speaking of a court to whom the appeal

was brought - - -

MR MOTBEY:	Yes.
TOOHEY J:
on a trial of such issues, finds the fact of the fraud, the surprise or the subornation of witnesses, as the case may be, to be proved to its reasonable satisfaction.

Is that not the difficulty that you have here? You

are faced with findings by the Court of Appeal that the

evidence upon which you would seek to relydid not of

itself satisfy the Court that there had been fraud?

MR MOTBEY: Well, the difficulty I face is not so much that

Their Honours made, as it were, a conclusive decision

to that effect. The difficulty as I see it is less

severe. What I in fact am confronted with is a
controversy of fact between the learned President's
analysis of the fresh evidence which would appear to
support my contention and Mr Justice Mahoney's analysis

of the fresh evidence which would appear to be against

it. And what I say in answer to that is that Dr Millons'

evidence was received without objection and was not

subjected to cross-examination. I have to concede that

Mr Justice Mahoney is not as impressed with the new

material as this applicant is but I say none the less

~~ .5~ g~ryPr~nt from the President's assessment of the

new material that it is powerful material according to

that assessment. And if you couple that with the fact

that Dr Millons' affidavit goes in without any objection

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it is difficult, in my submission, to support

Mr Justice Mahoney's view that there is not even a

prima facie case.

MASON CJ: Yes, but the affidavit evidence does not go very

far. It is just a view expressed by the doctor and,

ultimately, it is a matter for the court itself to
determine whether or not there is this inconsistency

and you are faced with a position in which in order to

get your arguable point of law launched you must ask us

to reverse a finding of fact. Now, the normal rule is

the Court does not grant special leave to appeal to

review findings of fact.

MR MOTBEY:  Your Honour, all I can say, I suppose, is that

it is a question of weighing the importance of the issue

thrown up by section 75A and also my argument about new

trial against the inconvenience of having to determine

a controversy of fact that the Court is entitled in

law, as I understand, to examine into and determine that

controversy of fact and make its own assessment.

MASON CJ: Yes, there is no question about it, the Court has

jurisdiction to do that.

MR MOTBEY:  So that although I cannot present the most perfect,

polished vehicle for the presentation of the important

issue, it is there perhaps in a slightly battered form

but capable of being acted upon to resolve what is - - -

MASON CJ: There is another matter too and that is this: that

it is a question that peculiarly concerns the powers and

the procedures of the Court of Appeal. Normally, one

would be inclined to take the. view that that is a matter

that should be left to the Court of Appeal to determine

for itself and if it transpires that the Court of Appeal's

view of its own powers is too limited, then the way is

open for legislative reform. We are dealing with some

subsections of a section that, on the face of them, seem

to be rather notorious in their difficulty.

MR MOTBEY: Well, I concede that there is difficulty arising

out of the various expressions of judicial opinion that

have been thrown up over the years but there is a strong

argument, with respect, that the three subsections at

the core of the controversy are unambiguous.and they

simply indicate,as the learned President stated, the

expression of intention of the Parliament.which is to

draw a distinction between material that you could have
found out because it was already in existence and you

perhaps were not diligent,on the one hand, and material

that did not exist but came to light before an appeal

by way of rehearing was able to be had. So that although I can

see and do concede that questions of parliamentary

m.=i.tter that is oper. ':-:'.c :!:'c · ~"'.:'Z~-~:-:1 2::-.::1 :;01:.::..~- be determined	intervention can be taken into account, it is still a
conclusively in this Court.

DAWSON J: But this section is peculiar to New South Wales, is it not?

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MR MOTBEY:	I am sorry, I cannot answer that.	I know that in

WARREN V COOMBES the whole section was discussed in a

general way and there was some expansion of the extent to which appellate courts could investigate matters of fact and draw inferences but I have not taken the trouble

to acquaint myself with the facts which would enable me

to answer that question. I do not know. So, that is,

really, all I can say in support of the application.

MASON CJ: Yes, thank you, Mr Motbey. The Court need not call

on you, Mr Hoeben.

On the assumption that the interpretation of

section 75A is of such difficulty and importance that

it warrants the grant of special leave to appeal, even

though it is a section governing the powers and practice

of the Court of Appeal, the applicant is nevertheless
confronted by an adverse finding of fact on the part of

the majority of the Court of Appeal. That finding was

expressed by Mr Justice Mahoney in these terms:

Firstly, I am not satisfied that what is

shown in the film is inconsistent with what

the plaintiff said he could or could not do

at the time of the trial. The plaintiff no

doubt put his case at its highest, but I am

not satisfied - to put the matter broadly

and without elaboration - that the film shows
that what he was saying was untrue. But, in

any case, I am not satisfied that what appears

in the film is inconsistent ·

with the basis on which the learned judge

assessed and awarded the damages that he did.

It would not be appropriate for us to grant

special leave to review this finding which, on the

face of it, is persuasive and the reversal of which is

essential to the applicant's success in the proposed

appeal. The application is therefore refused.

And you ask for costs?

MR HOEBEN. I do.

MASON CJ: Yes. You do not resist costs? The application is

refused with costs.

AT 12.30 PM THE MATTER WAS ADJOURNED SINE DIE

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