Seselja v Reardon & Anor - [2021] HCATrans 184

[2021] HCATrans 184

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C4 of 2021

B e t w e e n -
SOPHIA SESELJA
Applicant
and
LINDEN MICHAEL REARDON
First Respondent
INSURANCE AUSTRALIA LIMITED TRADING AS NRMA INSURANCE ACN 000 016 722
Second Respondent
Application for special leave to appeal

KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND MELBOURNE

ON FRIDAY, 5 NOVEMBER 2021, AT 10.30 AM

KEANE J: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR D.R. CAMPBELL, SC appears with MR A.R. MULLER for the applicant. (instructed by Maliganis Edwards Johnson)

MR K.P. REWELL, SC appears for the respondents. (instructed by HWL Ebsworth Lawyers)

KEANE J: Before you begin, Mr Campbell, I notice that a short extension is required, and I do not apprehend that it is opposed by you, Mr Rewell. Is that correct?

MR REWELL: It is not opposed, your Honour.

KEANE J: Very well. You have your extension, Mr Campbell. Yes, Mr Campbell.

MR CAMPBELL: Yes, thank you, your Honour. Could I begin by proposing as the ‑ what we would see is the central issue to the present application, as being the approach that was taken by the Court of Appeal in circumstances where it did not have any of the evidence that was available to the primary judge when he had made his decision, and that despite this circumstance, the majority of the Court of Appeal, we say, purported to conduct a review of the evidence and to make findings respecting that evidence which were contrary to those of the primary judge.

When undertaking the review it did, we submit that the Court of Appeal engaged in a process that involved it making an assessment of the mental processes of the defendant driver, that is, it made an assessment of that witness’ state of mind. We submit to your Honours that this, as a matter of general principle, and especially given the circumstances prevailing in this case, was something that the trial judge had a very considerable advantage over an appellate court about and was something that involved the Court of Appeal embarking on a process where it sought to find differently to the primary judge and ought not to have done so.

Could I take your Honours directly to the central part of the reasoning of the primary judge, which can be found at page 49 of the application book, under the heading “Awareness of the presence of the Suzuki before reversing”. Some of this material was specifically incorporated into the reasoning of the Court of Appeal, beginning at page 76 of the application book, but there are a couple of extra points at 49 that I would just wish to draw to your Honours’ attention. Firstly, his Honour at paragraph 299 noted that:

The plaintiff gave evidence –

which he accepted:

that after she…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Seselja v Reardon & Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] HCATrans 184
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Mr. Linden Michael Reardon, sought leave to appeal against a decision of the Court of Appeal. The dispute concerned the assessment of the defendant driver's awareness and conduct at the time of a reversing manoeuvre that resulted in a collision with the applicant's vehicle.

The central legal issue before the High Court was whether the Court of Appeal erred in its review of the evidence and its findings, particularly in circumstances where it did not have the benefit of seeing and hearing the witnesses, unlike the primary judge. The applicant argued that the Court of Appeal, by purporting to conduct its own assessment of the defendant driver's mental state and making findings contrary to the primary judge, had engaged in an inappropriate review of the evidence and had not correctly applied established legal principles regarding appellate review.

Justice Keane, delivering the decision of the High Court, stated that the appeal foreshadowed by the application would not raise any issue of principle, but rather a dispute concerning the better understanding of the facts to which settled principles apply. Consequently, the High Court dismissed the application for special leave to appeal with costs.

Orders