Shine v Williams
[2007] WASCA 194
•13 SEPTEMBER 2007
SHINE -v- WILLIAMS [2007] WASCA 194
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 194 | |
| THE COURT OF APPEAL (WA) | 25/09/2007 | ||
| Case No: | CACV:159/2006 | 13 SEPTEMBER 2007 | |
| Coram: | BUSS JA MURRAY AJA | 13/09/07 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | ROBIN LEE SHINE ALAN WILLIAM WILLIAMS |
Catchwords: | Practice and procedure Informal 'admission' of negligence Application to enter judgment for damages to be assessed Meaning of 'admissions of fact' for purpose of application Discretion to make order Principles governing exercise |
Legislation: | Rules of the Supreme Court 1971 (WA), O 30 r 3(1) |
Case References: | Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43 Grey v Australian Motorists and General Insurance Co Pty Ltd [1976] 1 NSWLR 669 House v The King (1936) 55 CLR 499 Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 Re Registered Trade Mark 'Certina' (1970) 44 ALJR 191 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SHINE -v- WILLIAMS [2007] WASCA 194 CORAM : BUSS JA
- MURRAY AJA
- Appellant
AND
ALAN WILLIAM WILLIAMS
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : COMMISSIONER SCHOOMBEE
Citation : SHINE -v- WILLIAMS [2006] WADC 194
File No : BUN CIV 42 of 2004
Catchwords:
Practice and procedure - Informal 'admission' of negligence - Application to enter judgment for damages to be assessed - Meaning of 'admissions of fact' for
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purpose of application - Discretion to make order - Principles governing exercise
Legislation:
Rules of the Supreme Court 1971 (WA), O 30 r 3(1)
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Appellant : Mr I A Morison
Respondent : Mr B C Sierakowski
Solicitors:
Appellant : John Mazza
Respondent : Brian C Sierakowski
Case(s) referred to in judgment(s):
Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51
Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43
Grey v Australian Motorists and General Insurance Co Pty Ltd [1976] 1 NSWLR 669
House v The King (1936) 55 CLR 499
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Re Registered Trade Mark 'Certina' (1970) 44 ALJR 191
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1 JUDGMENT OF THE COURT: This is an application for leave to appeal from a decision of Commissioner Schoombee in the District Court given on 29 November 2006. It is accepted that her Honour's decision was not final and therefore leave to appeal is required by s 79(1)(b) of the District Court of Western Australia Act1969 (WA).
2 The application before her Honour was made by the appellant as the plaintiff in an action commenced by a writ issued out of the District Court on 22 November 2004. The endorsed claim was for damages for personal injuries allegedly caused by the respondent's negligence. The injuries were said to have been sustained
as a consequence of the defendant braking heavily whilst driving a bus which caused the bus to slow and possibly stop and a man on his feet in the aisle of the bus losing his balance and colliding with the Plaintiff who was seated in the bus.
- As we understand it there has, even now, been no more complete pleading by way of a statement of claim.
3 The application before the court was made pursuant to O 30 r 3 of the Rules of the Supreme Court 1971 (WA).The appellant sought the entry of a judgment against the respondent for damages to be assessed. It seems that during the course of the hearing of that application, also pursuant to O 30 r 3, an alternative application for an order declaring that the respondent's negligence 'has been proven' was added. Both applications were dismissed. There was no order as to costs. An order was made that the appellant should file and serve a statement of claim within 28 days. As we have said, nothing appears to have been done in that regard, but, the Commissioner's judgment having been given on 29 November 2006, the application has been made to this court for leave to appeal.
4 The appellant seeks orders for the grant of leave, that the appeal be allowed and that in lieu of her Honour's judgment against her, she should have judgment for damages to be assessed. Alternatively, it should be ordered
that negligence on the part of the respondent is established and that only the following issues go to trial: whether the respondent's negligence caused the appellant an injury, and the quantum of the appellant's damages.
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5 We commence by referring to the factual background of the application made to the District Court, substantially in the terms found by the Commissioner.
6 The accident allegedly occurred on 29 June 2003. On 22 July 2003, the appellant's solicitor wrote to the Insurance Commission of WA. The letter apparently follows a format acceptable to the Commission. It briefly described the circumstances of the accident in much the same terms as were ultimately reduced to the claim endorsed on the writ. The names and addresses of three witnesses were provided. Ms Shine was alleged to have suffered a fracture of her thoracic spine which had reduced her capacity to work as a self-employed counsellor, consultant and celebrant.
7 It was alleged that the bus driver, Mr Williams, had been caused to brake heavily and negligently when a vehicle in front of the bus had indicated a left turn, but then had apparently decided not to proceed with the left turn and pulled out into the carriageway in front of the bus. It was alleged that Mr Williams' employer, South West Coachlines, was vicariously liable, and the driver of the motor vehicle was also negligent. The Commission was asked whether it admitted liability on behalf of any or all of the proposed defendants.
8 An officer of the Insurance Commission replied by a letter dated 5 September 2003. The letter advised that, 'negligence of the defendant will not be denied' subject to the matter being progressed before the expiration of the relevant limitation period. The letter said that if the claim became statute-barred that point would be taken, 'notwithstanding any prior admission of negligence nor interim payments'. The letter continued:
Whilst liability is admitted from a negligence point of view, we are not prepared to admit liability in relation to the injury itself. Once we are in possession of medical evidence we will consider this aspect further. Please obtain a detailed report from your client's general practitioner on a without prejudice and without admission of liability basis.
9 In our opinion, as was the view of the Commissioner, the letter is a rather confused document, albeit written on behalf of the Insurance Commission which, of course, is an experienced litigator in relation to claims for damages for negligence arising out of the use of a motor vehicle. In the first place, it ignores the fact that a claim was foreshadowed against a number of defendants. Indeed, it speaks of 'the defendant' without making it clear whether that term was applied
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- compendiously to all of the proposed defendants, some of them or only one of them and, in the latter event, whether that defendant was the respondent bus driver. The letter is puzzling because it refers to the possibility that a limitation defence may be raised 'notwithstanding any prior admission of negligence', as if no such admission has yet been made.
10 However, the document does at least make clear that the admission, if such it was, did not extend to liability for the injury the appellant claimed she had suffered and its consequences. The letter does not refer to the facts alleged in the letter of the appellant's solicitor of 22 July 2003 and it does not refer to the particularisation of negligence given separately in that letter in respect of the respondent bus driver and the unknown driver of the other vehicle.
11 That letter was followed by one dated 30 January 2004, written by the appellant's solicitor to the Commission, referring to the Commission's refusal to accept liability for the injury claimed. It was asked whether that liability would now be admitted, given the medical evidence, and a medical report was referred to which, it asserted, established that the appellant 'sustained a soft tissue injury to the thoracic spine', apparently rather than the fracture of the spine referred to in the original letter.
12 To that letter the Commission responded by a letter dated 5 February 2004 which advised:
We acknowledge receipt of your letter dated 30 January 2004 and wish to advise we are not prepared to formally admit liability for your client's claim, however we are willing to proceed on a without prejudice and without admission of liability basis.
- At least that made clear the Commission's position on behalf of the respondent with respect to the injury claimed. Whether it was intended to be read as resiling from any earlier admission remained unclear.
13 There it seems the position rested until, by letter dated 7 October 2004, the Commission offered to settle the claim for the sum of $19,740 inclusive of $1,500 costs. The letter advised that the damages threshold relative to the case under the Motor Vehicle (Third Party Insurance) Act1943 (WA) was the sum of $13,000. When that was deducted, the net offer was therefore the sum of $6,740. A form of discharge was provided which related only to a claim against the respondent. As is evident from the writ, again issued only against the respondent, that offer was not accepted.
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14 It seems that it was then that on behalf of the respondent the Commission consulted a solicitor who wrote on 13 December 2004 to the appellant's solicitor, declining liability and adding:
Whilst the admission of liability of the Insurance Commission under cover of their letter dated 5 September 2003 was unfortunate, that admission is now withdrawn as the Insurance Commission's insured was not negligent.
- Two things should be noted. The first is that although the Commission's letter of September 2003 speaks equivocally in different places about not denying negligence and about admitting liability for negligence, the letter written by the respondent's solicitor dated 13 December 2004 refers to the letter from the Commission as involving an admission of liability. The second point is that nowhere in the correspondence thus far is there a reference to any admissions of fact.
15 On 15 December 2004, the appellant's solicitor wrote to the respondent's solicitor accepting the withdrawal of the admission of liability and advising that it was his intention therefore to amend the writ to include the Insurance Commission as a second defendant to enable the action against the unidentified driver of the other motor vehicle to be pursued. The solicitor asked to be advised whether the Commission would admit liability in respect of the driving of the unidentified driver.
16 On 16 December 2004, the respondent's solicitor replied that there was no objection to the amendment of the writ and that liability was not admitted in respect of the driving of the unidentified driver. Following that exchange, the correspondence between the two solicitors was substantially concerned with the time required by the appellant's solicitor to investigate the claim, until ultimately the application presently at issue was made.
17 The application before the District Court was not, of course, concerned with the admission in a pleading or otherwise in writing of all or part of the case of another party. Order 30 r 1 provides for that and, once made, the party who makes such an admission will often be held to it unless real injustice will result. That is no matter of strict pleading. It is a matter concerned with the efficient, cost-effective conduct of litigation in accordance with case management principles as enshrined in the rules, O 1 r 4A and r 4B. In this respect, the court will encourage the making of such admissions of the truth of the case of another party. It will not effectively discourage that process by holding a party too rigidly to the admissions so made. It will permit a party to resile from such an admission where the interests of justice require it: Coopers Brewery Ltd v
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- Panfida Foods Ltd (1992) 26 NSWLR 738. That, in our opinion, is generally consistent with the approach required of the court by the decision of the High Court in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146.
18 But this is not such a case. Here the relief primarily sought by the appellant was an interlocutory judgment on the basis of admissions made by the respondent. The application was made under O 30 r 3(1) of the Rules which is in the following terms:
Where admissions of fact have been made on the pleadings or otherwise, any party may at any stage of a cause or matter apply to the Court for such judgment or order as upon such admission he may be entitled to, without waiting for the determination of any other questions between the parties, and the Court may on such application make such order or give such judgment as the Court thinks just.
19 The matter is therefore left within the discretion of the court, but a discretion informed by the court's appreciation of the justice of the case. It is noteworthy that the rule is concerned with admissions of fact and it matters not whether any such admission was made in a pleading or otherwise in writing, perhaps in response to a notice to admit facts, or even orally.
20 The purpose, of course, of extracting an admission of fact from a party is that the fact may be proved or taken to be established by proving the admission, without more. The party seeking to prove that fact may thereby be relieved of an evidentiary burden which may indeed, having regard to pragmatic considerations concerned with the availability of witnesses and the like, be unable to be discharged otherwise than by the admission.
21 It is therefore necessary that the fact or facts admitted be identified with abundant clarity. In Re Registered Trade Mark 'Certina' (1970) 44 ALJR 191 at 193, Barwick CJ, speaking of the rule of the High Court which is expressed in equivalent terms to O 30 r 3, said he was prepared to act upon admissions made which were 'adequate and unambiguous'. The application of the rule on the basis that a party making an admission of fact is held to that admission may, of course, have serious consequences for that party, in particular, because it may lead to an adverse judgment on at least part of the claim, as was sought in this case, or at least to an order which may have the effect of foreclosing the capacity of the party making the admission to advance in the litigation any
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- contrary proposition, again, as was sought here in the alternative. That being the case, in Certina, at 192, Barwick CJ said:
The powers which the Rules give to a Justice in chambers must be exercised with great caution. … but in a clear case a proper exercise of the power will obviate the delay involved in a hearing and will save unnecessary expense.
23 The High Court ultimately held that there had been no breach of the duty of care. It matters not for present purposes why the court came to that conclusion, but it was a conclusion which resulted in part from the fact that the respondent was precluded from relying in his action upon statements made on behalf of the appellant which acknowledged that 'the situation should not have occurred' and referred to the appellant's 'failing in its duty of care' to inform growers of the presence of the weed seeds. The question was whether that constituted evidence of an admission which might be relied upon to establish negligence. The factual parallels between that case and this in relation to the nature of the statements said to constitute a relevant admission of fact will be apparent. The principal reasons were those of Gummow J, McHugh and Heydon JJ agreeing. The relevant portion of the judgment is that at 340-1 [68] - [71]. His Honour commenced by noting that to say that the appellant had failed in its duty of care involved the proposition that the facts demonstrate that it had failed to meet a standard fixed by law. In our view, to say that a party has been negligent is of precisely that character. It involves the characterisation, as a matter of law, of the finding of certain facts which may themselves be primary facts or conclusions of fact.
24 Gummow J observed that to say, as had been said in some decided cases, that an admission might be made by a party to litigation of a mixture of fact and law and of a matter of law, was to state the proposition too widely. His Honour went on, at [69], to say:
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- Admissions on the pleadings are one thing. Modern rules of court commonly provide that a party may, by its pleading, raise any point of law. That which is so raised may be admitted. But that is not the present case. Certainly a party may admit the facts from which a conclusion of law may then be drawn.
25 At [70] and [71], Gummow J made clear his view that a party could not be asked to admit a conclusion which depends upon the application of a legal standard. His Honour relied upon the view to that effect expressed by Glass JA in Grey v Australian Motorists and General Insurance Co Pty Ltd [1976] 1 NSWLR 669 at 676 and referred to the views expressed by Lockhart J and himself in a joint judgment in Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43 at 68, where their Honours adopted the view of Glass JA that
when a standard, measure or capacity is fixed by a law, a party cannot be asked to admit a conclusion depending upon the legal standard; however, the witness may be asked to admit facts from which the conclusion of law may be drawn by the Court.
26 In our view, the position is that a pleading may raise a matter of law: RSC O 20 r 12. Otherwise, subject to r 8, r 11 and r 13, the pleading must be devoted to 'a statement in a summary form of the material facts': O 20 r 8. The opposing party need not traverse any matter of law so raised in an answering pleading. However, if by its pleading the opposing party accepts the correctness of a pleaded proposition of law, that will be a useful part of the process of defining the issues. But, subject to r 15, it is the pleaded facts which must be traversed if they are not to be taken to be admitted: O 20 r 14. In that context, under O 30 r 1 'the truth' of the opposing party's pleaded case may be admitted and relied upon by the other party.
27 Consistently with that position in respect of the pleadings, but quite apart from any pleadings, a party may make admissions of fact which, under O 30 r 3, may be relied upon to ground an application to enter judgment or for some other order which will have the effect of confining the issues in the litigation. For the purposes of O 30 r 3 a statement that there has been a failure to comply with a legal standard of conduct is not an admission of fact but a statement about the law, whether it is right or wrong or whether wisely made or not. It remains for the court to give effect to its own conclusion about the law applicable to the facts of the case, whether established by admission or otherwise.
28 If an application under O 30 r 3 is properly based upon an admission or admissions of fact, it remains a matter for the exercise of the discretion
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- of the court to make such order or give such judgment as is thought to be just. No more confined ground for the exercise of the discretion can be formulated or is desirable. In a case where the Rule may apply, the question will be whether a judgment should be given or order made which will, on the ground of admissions of fact, preclude the party making the admissions from litigating the contrary proposition. The question will depend upon all the circumstances surrounding the making of the admissions. Effectively, the question will be whether in all the circumstances the party making the admissions should be held to them, or whether the matter should go to trial in the context that the party now resiles from admissions previously made.
29 Her Honour the Commissioner, in dismissing the appellant's application, dealt with it as an admission concerning the conduct of the respondent: [19], limited, however, to an admission of negligence and not including causation, so not to be treated as an admission of liability. Her Honour directed herself to the relevant authorities, but in the end, at [44] - [46] her Honour dealt with the application as an exercise of her discretion not to make either order sought. Her Honour detailed the matters to which she had regard which persuaded her to that view.
30 The application for leave to appeal is based on two grounds. The first is that the Commissioner, it is contended, fell into error in holding that the respondent did not admit, through the Commission, that he was liable in damages for negligence. The ground is particularised and, as amended at the hearing of the application for leave, reliance is placed upon the Commission's letter of 5 September 2003 to the appellant's solicitor, together with its letter dated 7 October 2004 offering to settle the claim. It is argued that, by saying, 'Medical evidence in our possession indicates your client's claim is in a position to be finalised', the matter was carried beyond an admission described as one of negligent conduct and converted into an admission that by the respondent's negligence personal injury was caused to the appellant, a point which appears not to have been put to the Commissioner.
31 There are a number of reasons why this ground of appeal may not succeed. In the first place, although it is appreciated that the Commissioner did not decide that the content of the letter did not constitute an admission of fact for the purposes of O 30 r 3, in our view, for the reasons we have given and having regard particularly to the views expressed by the majority of the High Court in Dovuro, the letter does not constitute such an admission of fact, or at least it was not an admission
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- upon which reliance could be placed when making an application under O 30 r 3.
32 We take that view of the matter, taking the meaning of the letter of 5 September 2003 at its highest from the point of view of the appellant, although we consider that it is not clear precisely what it was that it was intended 'will not be denied'. Our view of this case is well caught by the remarks of Gleeson CJ in Dovuro, at 327 [25], when his Honour said that:
[I]t is always necessary for the fact-finder to consider precisely what it is that is being admitted. If the driver of a motor vehicle says to an injured passenger: 'I am sorry, I let you down', that may not mean much, or anything. If the driver says: 'I am sorry, I was going too fast', that may be very significant. The statement that the appellant '[failed] in its duty of care to inform growers as to the presence of these weed seeds' cannot be an admission of law, and it is not useful as an admission of failure to comply with a legal standard of conduct.
33 We think that in those circumstances the letter of 7 October 2004, even if it was available to be considered as part of the material relied on for the O 30 r 3 application, takes the matter no further. However, we note that in the letter dated 5 September 2003, the Commission suggested that medical evidence might be assembled and provided by the appellant 'on a without prejudice and without admission of liability basis'. When, on 30 January 2004, the appellant's solicitor wrote to the Commission inquiring whether liability was admitted in relation to the injury itself, the response, dated 5 February 2004, reiterated that the Commission, on behalf of the respondent, was, 'not prepared to formally admit liability for your client's claim, however we are willing to proceed on a without prejudice and without admission of liability basis'. It is clear, we think, that in that context the letter of offer dated 7 October 2004 was written on that basis. We have no doubt that its contents are subject to privilege which has not been waived, although the letter itself is not headed 'without prejudice' as is often the case where a party intends to reserve its position in that regard.
34 In the light of that view, it is strictly unnecessary that we should deal with the challenge made to her Honour's exercise of the discretion involved in her decision that she should not give judgment or make any such order as was sought, which would have the effect of confining any trial to questions of causation of harm and the quantum of damages. However, it is convenient, we think, that we should say something briefly about the assertions made by the second ground of appeal which complains that her Honour took into account a wrong principle of law,
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- took into account irrelevant considerations and failed to take into account considerations which were relevant.
35 In argument it was made clear that the ground depends on the classic statement by the High Court in House v The King (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at 504 - 505, where their Honours said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges comprising the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
36 The wrong principle which is identified in the particulars to the ground is the proposition that an admission of negligence is valueless when based upon facts and the application of a legal standard. It will be obvious, for the reasons that we have given, that, considered as a matter of principle, we think that the view so expressed is not only not wrong, but is positively correct.
37 Then it is asserted in the ground that there were a series of matters to which her Honour had regard which she should not have considered, and other matters to which she should have had regard which she overlooked. We have said that the principle guiding the exercise of the discretion vested in the judge by O 30 r 3 is that the decision to be made will be one which in all the relevant circumstances provides a just and fair outcome, having regard to the interests of the parties, the prejudice which might be attendant upon the making of an order under the rule, and the prejudice which might be attendant upon the refusal to make such an order.
38 In [40] - [45] of her judgment, her Honour noted a number of matters. She commented that there was no explanation as to why the letter of 5 September 2003 had been written in the terms it was. The position had not then changed, it seems, until, after the issue of the writ,
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- the respondent's solicitor wrote to the appellant's solicitor withdrawing the 'admission' on 13 December 2004, about 15 months later. Nonetheless, it seemed that the appellant's solicitor had accepted that there was no admission of liability and that the appellant's case would need to be proved. Investigations were made and time was sought to make them. Indeed, it is now clear that investigations were made on behalf of the respondent also, as to what occurred and who might have been at fault. The appellant had apparently commenced her investigations at an early stage. The names and addresses of three witnesses and various details of the circumstances of the accident were given shortly after it occurred, in the letter dated 22 July 2003.
39 Her Honour noted that the so-called admission had been made only about two months after the accident occurred, informally by letter, and that the Commission was an experienced litigant who might be expected to have understood what was being said. On the other hand, no lawyer was involved for the respondent at that stage. For the appellant, on the other hand, between 15 December 2004 and 15 August 2006, the date of the appellant's application for judgment, the appellant's solicitor proceeded on the understanding that the admission had been withdrawn, made investigations and instructed counsel to prepare a statement of claim and to add, as defendants, the Commission itself to represent the unidentified driver of the other vehicle, the respondent's employer and, indeed, a passenger in the bus who was said to have lost his balance when the bus braked so that he struck the appellant, who was seated.
40 In essence, the appellant argues that those were substantially immaterial considerations. We disagree. It seems to us that the matters considered by her Honour bore upon the question whether it would be just and fair to make an order under the Rule in either form sought by the appellant, which would result in either an interlocutory judgment that the respondent was liable to the appellant in negligence for a personal injury sustained in the accident, leaving only an assessment of damages, or at least in an order that the respondent was precluded from contesting the alleged facts and circumstances leading to a conclusion of negligence at any trial.
41 Then it is said that her Honour failed to take into account that the respondent would suffer no prejudice if the admission remained, an admission for the making of which the Commission had given no explanation, whereas it is said that the appellant, it must be inferred, would suffer prejudice if the admission was withdrawn. This part of the ground asserts wrongly, in our view, that her Honour overlooked that
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- there had been no explanation for the making of the admission and that it had been allowed to stand for a significant period until the solicitor's letter of 13 December 2004. Again, as to that, the ground asserts wrongly that there was no explanation given for the withdrawal of the admission. That overlooks the fact that the letter said that the 'admission is now withdrawn as the Insurance Commission's insured was not negligent'.
42 Had this truly been a case requiring a discretionary judgment under O 30 r 3, in our view her Honour approached the matter correctly. At [42] and [43] she made it clear that she understood that the discretion was to be exercised sparingly and cautiously, only where there was a clear case that the interests of justice favoured the view that the respondent should be held to the concession made by his insurer, with the result that he would be effectively foreclosed from contesting the question of liability or negligence in circumstances where there was no evidence that the appellant lacked the capacity to prove the facts upon which the court of trial might be invited to draw the conclusion that the respondent was in breach of his duty of care.
43 Her Honour dismissed the application and for the reasons now given we dismissed the application for leave to appeal.
44 The respondent sought his costs of the appeal. The appellant opposed that application, arguing that in view of the terms of the Commission's letter of 5 September 2003 she had arguable grounds to make the application without being in jeopardy as to costs and she should be allowed the opportunity to test the Commissioner's refusal to grant the application on appeal on the same basis. The Commissioner made no order as to costs. There is no suggestion that she was wrong to do so. But in our view, if it was desired to challenge her decision on appeal, there was no reason why the same approach should be taken by the Court of Appeal, and in our view costs should follow the event of the refusal of leave in the ordinary way.
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