The Nominal Defendant v Bell & Ors
[2008] HCATrans 303
[2008] HCATrans 303
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S163 of 2008
B e t w e e n -
THE NOMINAL DEFENDANT
Applicant
and
ELWIN BELL
First Respondent
JAMIE DEE
Second Respondent
JOHN VEIGEL BY HIS TUTOR PAULA TALLEN
Third Respondent
CHRISTINE BROUGHTON
Fourth Respondent
DEAN LESLIE DAVIS
Fifth Respondent
Office of the Registry
Sydney No S164 of 2008
B e t w e e n -
THE NOMINAL DEFENDANT
Applicant
and
ELWIN BELL
First Respondent
JAMIE DEE
Second Respondent
CHRISTINE BROUGHTON
Third Respondent
DEAN LESLIE DAVIS
Fourth Respondent
Office of the Registry
Sydney No S165 of 2008
B e t w e e n -
THE NOMINAL DEFENDANT
Applicant
and
CHRISTINE BROUGHTON
First Respondent
JOHN VEIGEL BY HIS TUTOR PAULA TALLEN
Second Respondent
OWEN ARNOLD BELL
Third Respondent
JAMIE GARY DEE
Fourth Respondent
DEAN LESLIE DAVIS
Fifth Respondent
Office of the Registry
Sydney No S167 of 2008
B e t w e e n -
JOHN VEIGEL BY HIS TUTOR PAULA TALLEN
Applicant
and
ELWIN BELL
First Respondent
JAMIE DEE
Second Respondent
THE NOMINAL DEFENDANT
Third Respondent
CHRISTINE BROUGHTON
Fourth Respondent
DEAN LESLIE DAVIS
Fifth Respondent
Office of the Registry
Sydney No S168 of 2008
B e t w e e n -
JOHN VEIGEL BY HIS TUTOR PAULA TALLEN
Applicant
and
CHRISTINE BROUGHTON
First Respondent
THE NOMINAL DEFENDANT
Second Respondent
OWEN ARNOLD BELL
Third Respondent
JAMIE GARY DEE
Fourth Respondent
DEAN LESLIE DAVIS
Fifth Respondent
Office of the Registry
Sydney No S199 of 2008
B e t w e e n -
DEAN LESLIE DAVIS
Applicant
and
ELWIN BELL
First Respondent
JAMIE DEE
Second Respondent
JOHN VEIGEL BY HIS TUTOR PAULA TALLEN
Third Respondent
CHRISTINE BROUGHTON
Fourth Respondent
THE NOMINAL DEFENDANT
Fifth Respondent
Office of the Registry
Sydney No S200 of 2008
B e t w e e n -
DEAN LESLIE DAVIS
Applicant
and
ELWIN BELL
First Respondent
JAMIE DEE
Second Respondent
CHRISTINE BROUGHTON
Third Respondent
THE NOMINAL DEFENDANT
Fourth Respondent
Office of the Registry
Sydney No S201 of 2008
B e t w e e n -
DEAN LESLIE DAVIS
Applicant
and
CHRISTINE BROUGHTON
First Respondent
JOHN VEIGEL BY HIS TUTOR PAULA TALLEN
Second Respondent
THE NOMINAL DEFENDANT
Third Respondent
OWEN ARNOLD BELL
Fourth Respondent
JAMIE GARY DEE
Fifth Respondent
Applications for special leave to appeal
GLEESON CJ
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON TUESDAY, 26 AUGUST 2008, AT 9.40 AM
Copyright in the High Court of Australia
__________________
MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR D.M. WILSON, for the applicant, the Nominal Defendant, in matters S163, S164 and S165 and for the Nominal Defendant as a respondent in each of the other matters. (instructed by Sparke Helmore)
GLEESON CJ: Mr Walker, I think we have all the other appearances conveniently noted here and it is probably not necessary for counsel to announce them.
MR WALKER: Thank you, your Honour.
MR J.E. MACONACHIE, QC appearing with MR C.L. THOMPSON for Elwin Bell, Jamie Dee and Owen Bell (instructed by Carroll & O’Dea)
MR B.W. WALKER, SC with MR A.J. BLACK appearing for John Veigel (by his tutor Paula Tallen) (instructed by Stacks‑Goudkamp)
MR R.W. SETON, SC and MR P.L. CARR for Dean Leslie Davis (instructed by Curwoods Lawyers)
MR R.S. McILWAINE, SC appearing for Christine Broughton in S164/2008 and S200/2008 (instructed by Keddies)
MR R.S. McILWAINE, SC appearing with MS Y.D. CACHIA for Christine Broughton in all remaining matters (instructed by Moray Agnew)
GLEESON CJ: Mr Jackson, it seems to be accepted, as appears from the application book, that nobody wishes to argue for an outcome at a new trial that would displace the verdict in favour of Mr Veigel, is that right?
MR JACKSON: That is so, your Honour, yes.
GLEESON CJ: There was a lively contest in the Court of Appeal about whether Mrs Broughton bore any responsibility for the accident and the court decided that she did not. The accident arose out of a head‑on collision between a vehicle driven by Mr Broughton and a vehicle driven by Mr Veigel.
MR JACKSON: Yes.
GLEESON CJ: What were the competing possibilities as to who was responsible for that, assuming Mrs Broughton bore no responsibility herself?
MR JACKSON: The competing possibilities, your Honour, appear to have been these. First of all, the vehicle – I use the term “vehicle” to put it shortly – which was being driven, which was the Bell and Dee vehicle, that is a vehicle and caravan following, that is what the primary judge found, that was one possibility. There was then a suggestion that it was not that vehicle but a vehicle in which another party, Mr Davis, for which he was responsible, and a third possibility was that perhaps there was someone else, the Nominal Defendant was responsible.
GLEESON CJ: That first possibility, the vehicle and caravan was owned by Mr Bell and driven by Mr Dee?
MR JACKSON: Yes, your Honour. That came about because a caravan with that number plate was immediately recorded by the two witnesses, whom the primary judge accepted, namely, Mr Lear and his daughter who had observed the accident happening from behind and after attending to the injured had driven up to the top of the hill and there saw the caravan that they said was involved, had taken the number plate and had given that to the authorities. Now, the judge, hardly surprisingly with respect, accepted their evidence and he rejected specifically the evidence given by the persons who were the driver and owner of those vehicles.
Now, your Honours, that is where the matter lay. He rejected that evidence. He accepted the evidence of the Lears. The other possibilities remained in a category as possibilities but the possibilities had come to an end at the time when that decision was made. Now, unless it be, your Honours, that in some way the judge’s view – this was a long case, he saw all the witnesses – of the credibility of those persons was something to be set aside, that was the end of the matter.
The way in which the Court of Appeal has dealt with the matter has, in effect, set aside those findings as to credibility, but also by setting them aside – what I am about to say has a circular element to it, I accept – left open the possibility that the evidence given by witnesses, whom the judge did not accept and deliberately did not accept, is evidence which establishes the presence of other vehicles. But even worse, your Honours, that gives rise to the second part of the case, and that is the position about the driver of the vehicle.
What happened, of course, was simply this, that it was a three‑lane road, one north, two south, the two south ones including an overtaking lane. She, for whatever reason, suddenly crossed the double lines into the path of Mr Veigel. He had no chance.
GLEESON CJ: Mr Jackson, I just want to get the factual context clear. The two lanes that were heading south would have been moving at quite different speeds from one another, would they not? The left lane moving south contained some very large vehicles carrying circus rides and things like that. Presumably the vehicles that moved into the overtaking lane were travelling a good deal faster than the cumbersome vehicles in the left lane.
MR JACKSON: Faster in any event, your Honour, yes.
GLEESON CJ: And were they travelling fairly close to one another? I mean by that, was there a car just in front of Mrs Broughton and a car just behind her?
MR JACKSON: Yes, your Honour. I think the answer was yes.
GLEESON CJ: What was Mrs Broughton supposed to do when a vehicle in the slow moving left lane that she was overtaking started to flash its indicators indicating that it was going to move into her lane?
MR JACKSON: Well, your Honour, two things really. The finding by the primary judge in relation to her liability was not one of saying just that she should have observed and been more careful about the fact that someone might turn into the lane she was in, but it was also that she had not observed at a sufficiently early point that the vehicle was moving in fact into her lane. It was a combination of those two aspects that gave rise to a question of liability.
GLEESON CJ: But it was moving out of a very slow moving lane into a stream of much faster moving traffic.
MR JACKSON: Your Honour, into a stream of traffic one would accept, if I may say so, with respect, but the much faster and so on is, your Honour, perhaps debatable. What it was, was a simple case of an overtaking lane that one sees sometimes that occurs in a break in an otherwise two‑lane road and it was a case that is not uncommon, your Honours, as we have said in our summary of argument, for people to leave various distances between themselves and vehicles in the right‑hand lane in those circumstances. When driving in the right‑hand lane, one does have to exercise a degree of care. A degree of care is necessary because there will always be vehicles that are likely to move out and not perhaps judge it as well as they might. It does not mean that one has the ability to drive down that lane taking no care for what might happen in the left lane. It may be that views would vary, your Honour, about the degree of negligence in the case of Mrs Broughton, but, in our submission, it was open to the primary judge to find that there was.
HAYNE J: It was assigned 50/50, was it not?
MR JACKSON: Yes.
HAYNE J: What should she have done that would warrant 50 per cent of the responsibility?
MR JACKSON: She should have slowed down, your Honour. Essentially that she should have kept a better look out and slowed down. Your Honour, I do not know if I can put it more highly than that, but that is essentially ‑ ‑ ‑
HAYNE J: That seems to be a matter that might have excited attention in the Court of Appeal about the reasoning process at trial, may it not?
MR JACKSON: Your Honour, it may have, but only because one gets to the – one might say, well, 50 per cent was high, but having said that, your Honour would appreciate that the attribution of particular percentages is, of course, very much a matter for the ‑ ‑ ‑
HAYNE J: Podrebersek, et cetera, yes. I understand that.
MR JACKSON: Yes. Your Honour, what I was also going to say was this, that one of the versions put forward by Mr Dee was that he had looked out when he had seen in his window that she had gone onto that side of the road for no apparent reason. Now, with the trial going ahead, that means that his evidence has been to some degree perhaps not – I am sorry, Mr Bell, I should have said. It means that there is a possibility that you had the only cause of the accident being one where she has gone to the wrong side of the road, she is excluded from any liability, and Mr Veigel would have to fail. Because no one is suggesting Mr Veigel should fail, perhaps they have got.....but it does leave a most curious result where that result has occurred.
HAYNE J: Does it mean then that the order for retrial made by the Court of Appeal is retrial on a particular set of premises; one, that a vehicle pulled out into the path of Mrs Broughton’s vehicle, that the vehicle that did pull out was at fault and that fault was a cause of the collision between Mr Veigel and Mrs Broughton’s vehicles, and the last premise is that the only available answers to the question about the identity of the owner/driver of the offending vehicle are Mr Bell, Mr Dee, Mr Davis, or that the identity of the vehicle cannot after due search and inquiry be established?
MR JACKSON: No doubt that is the view that the Court of Appeal was endeavouring to implement in the case of the further trial. But may I say in relation to it, your Honour, at that further trial, as your Honour would appreciate, the witnesses would presumably be called again, the issues all be dealt with and the possibility exists that there may be a finding that it is impossible to identify which of the vehicles because if the evidence, for example, of Mr Bell was accepted, it was not any of those.
GLEESON CJ: The Court of Appeal could have directed the parties to make admissions of fact along the lines just mentioned by Justice Hayne, could it not, for the purpose of a new trial?
MR JACKSON: Well, your Honour, the view that was taken by the Court in Waterways Authority v Fitzgibbon, which we have attached to our bundle of papers, your Honours should have it on page 3 of our bundle of papers. You will see in the headnote at the bottom of the first page the limitation placed on the new trial and the majority in the Court in, I think,
paragraphs [15], [19] and [20], which raises the questions of admissions which your Honour referred, observed, and if I can go over to page 9 at about line 24:
The evidence will not necessarily be the same as the evidence at the first trial. It could be significantly different.
Then there was a reference to an artificially isolated assumption. Now, your Honours, the facts of course are different, but we would submit one does arrive in the present case with a rather similar situation. So, your Honours, our submissions in essence are that the verdict of the Court of Appeal, the approach taken by the Court of Appeal was one that was fundamentally erroneous, we would submit. That is in relation to the identity.
HAYNE J: Well, you say fundamentally erroneous, in which respect? In setting aside or in ordering?
MR JACKSON: I was going to identify them, your Honour. The first was in relation to setting side the judgment of the primary judge on the question of identity of the parties involved. Secondly, so far as the new trial is concerned, if one assumes against us that there should have been a new trial, then it was a new trial in which, in a sense, the principal participant, the person whose vehicle came onto the wrong side of the road, should not have been excluded as a party. Your Honours, those are our submissions.
GLEESON CJ: Now, who supports Mr Jackson?
MR WALKER: We do, your Honour. Our position is simply and solely to ensure that the position that your Honour the Chief Justice noted at the outset is assured rather than simply confidently predicted by everybody.
MR GLEESON: Now, it is dealt with in the submissions here somewhere, is it not?
MR WALKER: Yes. May I say that at trial his Honour noted that there was no suggestion by any party that my client bore any degree of responsibility for the accident. In the Court of Appeal that is clear and in all the written submissions that is equally clear; there is no one here with a voice saying that Mr Veigel may be at risk of – but finishing the sentence is difficult – what, losing a verdict? There is not verdict. Of losing an adjudication which is not manifest or embodied in any order of any court. Can I explain. In the supplementary book, pages 14 and 15, you have a version good for this purpose of the orders. At the top of page 15 you have verdict and judgment for Mrs Broughton against Mr Veigel, that is what the respondents are. That is the end of the matter as things presently stand between my client and Mrs Broughton.
HAYNE J: Much turns on what happens or what is understood in paragraph 15 of the order, does it not?
MR WALKER: Quite so. Now, we have there the expression, “the offending vehicle”. The word “offending” comes from the reasons for judgment. It reminds one of objects being taxed. It is obviously somebody else, the driver, who was offending, the owner who will be liable and the vehicle needing to be identified. Our difficulty is this. These orders, in our submission, and for the reasons we adopt put my learned friend Mr Jackson, are inadequate to assure to Mr Veigel that come what may in a hearing where, after all, further inquiries may yield further material not yet known by any party, may yield a version of events which does place responsibility on Mrs Broughton.
GLEESON CJ: Let us suppose you are right about that. I rather guess that these orders were framed by counsel after they were invited by the Court of Appeal to have a go at it. If you look at the actual order ‑ ‑ ‑
MR WALKER: It is not a guess, your Honour. That is correct.
GLEESON CJ: Yes. If you look at the actual order that was made by the Court of Appeal, it appears on page 135. Now, what can be done better to assure the position of your client in that respect?
MR WALKER: Your Honour, with the wisdom of hindsight, if in order 15 there had been or could be by some explicit rider a reference either to extracted admissions or to the basis upon which the retrial is being had, then the substance would need to be that whoever is identified as the owner/driver of the offending vehicle, possibility one, or if none be identified, the Nominal Defendant will thereupon without further contest be held liable for the verdict in the quantum which has been preserved by the Court of Appeal orders. The quantum appears to have been preserved by dint of the partial setting aside of the judgment and orders referred to in order 5 at the foot of page 14 of the application book. If that could be achieved, as it could be by, for example, conditioning either a grant of special leave or a refusal of special leave, then, in our submission, our position would be secured. That is our only interest in the matter.
GLEESON CJ: Now, as I understand it, in a sense you are pushing an open door. I do not understand any party to oppose that outcome.
MR WALKER: No, our only position is that the orders do not assure us of that come what may at a retrial. That is the only position. To put it
another way, consensus at the Bar table today may not produce any juristic means by which we can compel that outcome come whatever surprise there may be at a retrial.
GLEESON CJ: You mean it is legally impossible or it just has not been done by these orders?
MR WALKER: It just has not been done by these orders. It is certainly not legally ‑ ‑ ‑
HAYNE J: It has not been done explicitly by these orders, but much turns on ‑ ‑ ‑
MR WALKER: Thank you, your Honour. Yes. It is not in my interests to argue that we are unprotected. It is my duty to argue that the protection should be assured. Yes, there is an argument that we are already protected.
GLEESON CJ: We have not heard argument from other people yet as to what we ought to do about the special leave application, but just in relation to your position, if we were minded to refuse the special leave application and in refusing the special leave application we were to add a rider that we are doing that on the basis that it is implicit in order 15 that certain things happen, would that protect your position?
MR WALKER: Yes.
GLEESON CJ: Could you write down, please, what it is that you would wish us to say in that respect before we hear the other people? Now, who else is supporting ‑ ‑ ‑
HAYNE J: With some modesty, Mr Walker.
MR WALKER: Thank you, your Honour.
MR SETON: If your Honours please, I appear with my learned friend Mr Carr for Mr Davis.
GLEESON CJ: Now, you are for Mr Davis, yes.
MR SETON: Your Honours, we also support what Mr Jackson has said. Our position though is slightly different in that we would also wish, if special leave were to be granted to three applicants, to agitate an extra ground of appeal. Alternatively, if special leave were not to be granted, we submit that the additional ground of appeal that we would wish to agitate would be reason though for special leave to be granted to Mr Davis alone. Now, it is simply this, your Honours, that Mr Davis obtained a verdict from the trial judge who found that he was not satisfied on the balance of probabilities that Mr Davis was anywhere at the scene of the accident. That finding was clearly based on a credit finding that the trial judge found Mr Owen Bell, who was the only witness who gave.....evidence of Mr Davis’ presence, was an unsatisfactory witness.
The Court of Appeal found that that credit finding was, to quote the Court of Appeal’s words, “well open to the trial judge”. The Court of Appeal in fact refers to the matters that the learned trial judge set out in support of that credit finding as not an exhaustive list. The Court of Appeal itself pointed to other matters that justified such a credit finding. So there is no challenge to the credit finding made by the trial judge. So if one then puts to one side Mr Owen Bell’s evidence, there was, we submit, no other evidence putting Mr Davis at the scene of the accident. Mr Davis denied it and gave sworn testimony to that effect. He was corroborated in part by his father who gave evidence. There were documents tendered to corroborate his version of events.
So it is our submission, put simply, that the Court of Appeal had no warrant whatsoever to set aside the verdict Mr Davis obtained and has offended the dictates of the Fox v Percy advice as to how we deal with findings based on credit findings. It is, let me say, put against us by the Dee/Bell camp that there was evidence from the other witness identifying or describing what I will call the “offending vehicle” which they say marries up in part with Mr Davis’ vehicle. The difficulty with that simply is this.
First of all, that presupposes the veracity of the description of Mr Davis’ vehicle, and that was provided by Mr Davis. So if we accept therefore that Mr Davis’ description of his vehicle is to be accepted, he described his vehicle as having two spare tyres attached across to the rear of the caravan, no witness described the offending caravan as having tyres on its rear. We say, in any event, even if we could not point to that, all the other witnesses do is describe in a very generic sense probably every second caravan on the road. So in short, your Honours, it is our submission that Mr Davis had a verdict which should not have been taken away from him the way the Court of Appeal has done so. In essence, the Court of Appeal has treated his verdict as having to be dragged along the vortex with the Dee/Bell verdict or the Nominal Defendant’s verdict.
It is our submission that there would be no prejudice to either plaintiff if Mr Davis were to retain his verdict. It would result in a finding that Mr Davis on the balance of probabilities was not there. Mr Veigel would still have two defendants to sue, which was what both plaintiffs did at the beginning. For 20 days they ran a case against the Dee/Bell camp or the Nominal Defendant. It was going to be one or the other. No one suggests that the parties could fall between the cracks. The Court of Appeal held that there was one of three possibilities and that Mr Veigel and Mrs Broughton, if Mrs Broughton was to retain her verdict, cannot fall between the cracks.
So if Mr Davis retains his verdict and is let out, there being simply no acceptable evidence to put him there, then the potential liable defence will be either the Dee/Bell camp or, failing that, the Nominal Defendant. So our submission is that we support the other two applicants’ application for special leave but submit that failing that, Mr Davis should be still granted special leave on the basis of what I have just put to your Honours.
Can I just point out a matter of housekeeping. Mr Davis’ applications, your Honours, are late and I ran out of time and would require ‑ ‑ ‑
GLEESON CJ: Is that opposed? Yes, you have that extension.
MR SETON: Your Honour pleases. Your Honours, that is the gravamen of our application for special leave whether it travels along with the Nominal Defendant’s application and Mr Veigel’s or Mr Davis on his own part. Can I just make one other matter clear, your Honours, and that was in terms of the possible outcomes.
There was, of course, a fourth outcome possible and that is that Mrs Broughton swerved across the road for seemingly no reason. One might react against that and say initially, well, that seems a bit bizarre, and I should point out there was some evidence of skid marks starting in her lane, but the reason I mention it is this. There was a witness, Ms Harradin, who gave evidence. She saw no cause for Mrs Broughton to swerve. Mr Owen Bell, his version, and the trial judge found this, simply totally exculpated Mr Davis from any involvement. He said on the one hand, look, Mr Davis was present, but the way he described the accident, Mr Davis had been passed and was not involved.
GLEESON CJ: That possibility that you mention seems to be taken up in the description in order 15 of “the offending vehicle”.
MR SETON: Your Honour, what we would have is if the matter were to go back on that limited basis, we would have this potential result, that a trial judge could hear Mr Owen Bell’s evidence about the identity of the driver and him saying, one assumed again, that he saw Mr Davis. Accepting that evidence in the face of saying Mr Davis is in denial, it would be bizarre, we submit respectfully, for that trial judge then to have to ignore the other part of Mr Bell’s evidence and that is that the way the accident happened and the vehicle that was being driven by Mr Davis was not in fact an offending vehicle.
GLEESON CJ: You may be right about that, Mr Seton, but what has happened in this case is that the Court of Appeal did not initially make any orders at all. It said, “This is what we think and we would like counsel to bring in minutes of a set of orders that will give effect to our reasons for judgment”, and counsel then brought in these minutes of order. We are hardly likely to grant special leave and give the High Court the task of sorting out the orders that counsel should have agreed on in the first place.
MR SETON: I appreciate that, your Honour.
HAYNE J: The formulation of orders for trial of separate issues is not easy and needs to be given very careful attention.
MR SETON: Your Honours, we accept that. I mention this factual dilemma because in many ways it really highlights the unacceptability, in our respectful submission, of Mr Davis having to face the music twice when we have a witness who bizarrely gives one version of Mr Davis being there but then gives a version that the court has, we submit respectfully, quite appropriately rejected as incorrect. So that there being no prejudice to either plaintiff if Mr Davis is let out, he having obtained a verdict in circumstances where there was no right for the Court of Appeal to set the verdict aside. Those are our submissions.
GLEESON CJ: Mr Maconachie, you seem to have had the greatest success in the Court of Appeal.
MR MACONACHIE: We achieved what we sought to achieve, yes, a new trial.
GLEESON CJ: Your clients are the owner and driver of the vehicle whose ‑ ‑ ‑
MR MACONACHIE: A vehicle, your Honour.
GLEESON CJ: A vehicle whose number was noted down by the observers immediately after the collision occurred.
MR MACONACHIE: Not immediately after, your Honour. The word “immediately” is used by the trial judge in an entirely different context to the way in which my learned friend, Mr Jackson, uses it in his written submissions and in contrast to the way in which he first used it in his oral submissions. “Immediately”, of course, is a relative term, but there is no doubt – I will take your Honours to the various parts of the material if you want me to, but this is the gravamen of it – Mr Lear and his daughter saw an event. They then, Mr Lear driving, sought to find a spot on the side of the road where he could safely bring his vehicle to rest. He said unequivocally in his evidence before the trial judge that he lost sight of the offending vehicle. He had said in a statement beforehand that it remained in his view.
His evidence, his various versions about his capacity to observe and accurately recall, was very central to the central conundrum, if I can put it that way. He parked his vehicle by the side of the road with the offending vehicle out of sight around a corner. He and his daughter ran back to the accident scene. He there did certain things, amongst other things, whilst he was walking back, called the police. He then returned to his vehicle, again with this offending vehicle out of his sight. He returned again to the accident scene, did certain things, gave certain assistance, gave people information, returned to his vehicle.
How far away the vehicle was, how much time was involved was never, so far as I can tell, given any real definition. The best seems to be Ms Lear saying “five to 10 minutes, but it might have been longer”. The immediately recorded point is itself a matter of considerable factual uncertainty and in any retrial it will be a central factor in whether or not Mr Lear’s evidence about which vehicle was the offending vehicle is given credence, not because he is not telling the truth, but because he is caught up in a moment of high drama and makes an observation 10, maybe more, minutes after the observation of the dramatic event itself and there is evidence to the effect that he assumed that the vehicle that he saw and which was unquestionably driven by Mr Dee and unquestionably owned by Mr Bell, was the offending vehicle.
GLEESON CJ: Mr Maconachie, you do not suggest that at any new trial there should be a realistic possibility that Mr Veigel might lose his verdict?
MR MACONACHIE: Your Honour, can I answer that by saying our position is and always has been not us. That is the only position that we have adopted. That is the only position we adopt now. Not us. The Court of Appeal determined in a careful and, we would respectfully say, exemplary judgment that there were lots of reasons why the reasoning of the trial judge was inadequate and failed, with respect to his Honour, to do that which he was required to do and that is to consider all the evidence and decide the case on all of the evidence.
We are neutral on the question of whether Mr Veigel succeeds or does not succeed. We are neutral on the question of whether Mrs Broughton succeeds or does not succeed. That is not to say that in order to achieve a quick, just and effective efficient outcome, we would not join in the kind of limitation that my learned friend, Mr Walker, pleads for and which, if I am understanding the feeling in the room properly, your Honours would be inclined to do. But that is a different question to
whether we will argue one way or the other. Our only position is, not us. Does that sufficiently assist your Honours?
GLEESON CJ: Yes, thank you.
MR MACONACHIE: I am happy to take your Honours to the factual material that I adverted to in terms of the immediacy point if your Honours want me to.
GLEESON CJ: We will let you know.
MR MACONACHIE: Yes, your Honour. There is one further thing. I would rather you said that with both eyes open, if your Honour pleases. I would also want to say something about the position that Mr Jackson adopts in that his predecessor in the Court of Appeal – and your Honours see this at paragraph 232 of the application book at page 132. At paragraph 232 the learned President notes, and there is no dispute as I understand that this is the position adopted in the Court of Appeal:
(a) that Mr Lear correctly identified the offending vehicle on the day of the accident; and (b) that in the months that followed the plates on the caravan must somehow have been switched.
That was the basis upon which the Nominal Defendant and Mr Veigel on his coat‑tails, as it were, asked the Court of Appeal to resolve this case. Now, as I understand Mr Jackson’s position, he comes here and says, we do not have to worry about that second position, about switching of plates. The Court of Appeal implicitly, he says, was wrong to decide that issue. It confused their thinking. It is all down to credit. But that is not the way in which the Court of Appeal was asked to decide the case. He comes here today saying, “I put the case on this basis in the Court of Appeal and I now want your Honours to grant me special leave because that is a bit uncomfortable”. That does not sit well with the idea of special leave and it does not sit well with the idea of finality of litigation. Subject to your Honours invitation to let me know, that is all we have to say.
GLEESON CJ: Thank you, Mr Maconachie. Yes, Mr McIlwaine.
MR McILWAINE: Your Honour, might I firstly deal with the question of Mrs Broughton’s negligence. There was a critical finding at trial which one will find in the application book at page 9 around line 30, and it is this, that the truck/caravan combination moved into the overtaking lane in which Mrs Broughton was proceeding when she was alongside the caravan. Now, that finding was not the subject of any challenge in the Court of Appeal and the judges on appeal dealt with the cases on that basis. So we have a setting where Mrs Broughton is proceeding south in a stream of traffic, which is essentially ‑ ‑ ‑
GLEESON CJ: Which had been waiting for an opportunity to get past the circus vehicles.
MR McILWAINE: Yes. It had been held up by these larger vehicles because the highway, before you get to the division of the road, is one northbound lane, one southbound lane. So this stream is being held up by these vehicles. Once they arrive at the division, the caravan, the circus vehicles, moves into the slow lane and the stream of traffic, as you would expect, moves into the overtaking lane and the stream proceeds up the overtaking lane, overtaking the various circus trucks. That was common ground.
The only real issue was whether the indicator on the caravan was flashing before Mrs Broughton arrived at the rear of the caravan, but what is important is that the finding at trial, upon which the Court of Appeal proceeded, was that the truck and caravan did not start to pull into Mrs Broughton’s lane until she was alongside the caravan. It was on that basis that the Court of Appeal held that the trial judge had made an error because he had failed to consider a part of Mrs Broughton’s case, which had been pleaded and argued, namely, the effect of road rule 148.
GLEESON CJ: You do get an impression that the Court of Appeal thought that the trial judge’s finding about Mrs Broughton being 50 per cent at fault was very surprising and that that was where the fact finding of the primary judge began to unravel, in their eyes.
MR McILWAINE: Yes, your Honour. The primary judge never explained how he got to his 50 per cent to start with. He simply referred to submissions made by counsel, but never went on to explain how he balanced the culpabilities. But the Court of Appeal did not need to deal with contributory negligence, of course, because the Court of Appeal found that there was no negligence at all because a reasonable driver travelling up the overtaking lane in a stream of traffic, as Mrs Broughton was, would be entitled to expect that the driver of the truck pulling the caravan would wait for the stream to pass by before he then pulled over into Mrs Broughton’s lane. In those circumstances, your Honour, it is not the policy of this Court, of course, as the second appellate court, to in fact retry negligence cases of this kind.
As far as the new trial is concerned, your Honour, reference has been made, of course, to Waterways. In Waterways this Court held that the Court of Appeal had power to send the matter back for a new trial on a limited basis. Where the Court divided in Waterways, as your Honour will recall, is
whether in the particular circumstances of that case that should have happened, and the majority found that it should not. But Waterways is an entirely different case to this one, we would submit.
Here there are two completely discrete issues. One is, firstly, what was the identity and who owned that truck/caravan? That is completely discrete and does not depend on any of the findings in relation to whether Mrs Broughton was negligent or not. There would be no problem with that issue as to identity being the subject of a new trial with Mrs Broughton’s verdict that she achieved in the Court of Appeal being preserved. They are the submissions we would make, your Honour.
GLEESON CJ: Thank you. Yes, Mr Jackson.
MR JACKSON: Your Honours, may I mention four matters. So far as the reference to page 9, and this is in relation to Mrs Broughton, could we also say that, having said what is there at page 9 about line 25, one then sees that on the two pages further over, on page 11, between lines 19 and 32, the judge goes on to deal with aspects of negligence and in particular you will see the last four lines of that paragraph commencing at page 19. One does have to read the two together.
The second matter, your Honours, is this. The matter raised by Mr Maconachie about paragraph 232 at page 132 of the Court of Appeal’s reasons your Honours will see that two matters were argued. One of the matters that was argued was the matter referred to there as (a) and, your Honours, that, in our submission, was sufficient. Maybe we did not succeed on the second, but there is no point in taking on here points that are not satisfactory.
The third point, your Honours, is this. There has been a reference to order 15 at page 15 of the supplementary book. May we say in defence of the parties, as it were, that the wording of that comes directly from what was said by the Court of Appeal at page 130, paragraph 222 and also, you will see, paragraph 238 at page 133.
Your Honours, I will come to a variation of that proposed by my learned friend in just a moment, but the fourth matter I want to deal with is this. My learned friend in endeavouring to have Mr Davis’ application succeed in any event does give rise to the matter which one can see at page 10 of the application book, about line 40. You will see at about line 41 he said he was “not satisfied, on the evidence, that at the time of the collision Mr Davis was in the vicinity”. The judge also said “there is no evidence that an unidentified vehicle was involved in the accident”. We are, in a sense, in exactly the same position in that regard as Mr Davis and if Mr Davis’ application were to succeed, one might say – loosely, I know –
by parity of reasoning so should ours and there would be a rather limited class people dealt with at the new hearing and the only possibility would be back to the ones found liable by the judge. So our submission would be if our application fails, so too should that of Mr Davis.
Could I come back to a document that has been proposed, a possible variation or explanation of paragraph 15 at page 15 of the supplementary application book. My learned friend no doubt will give it to your Honours in a moment. Could I just indicate the difficulty that we have in relation to the substance of the proposal is this. Your Honours, perhaps I could give it to you from my learned friend. The difficulty that we have with any such form is that on a new trial limited to the issues as the identity of the offending vehicle and the owner/driver, the consequence arrived at may be that in determining that issue it is then held that there was no offending vehicle because the evidence demonstrated that Mrs Broughton went, for some reason, onto the wrong side of the road.
Now, she is not a party. The explanation of order 15 that is posited is one that would have the result that, even though in resolving that issue it was found there was no liability of anyone, there was no offending
vehicle, that we are yet undertaking to be liable as one of the possible persons who has to be so identified, because the terms of that order 15 require in effect that someone be identified. Your Honours, that is what we seek to say.
GLEESON CJ: Yes, thank you. Yes, Mr Walker.
MR WALKER: Your Honours, the expression “offending vehicle” appears because it has been apparently adopted, one supposes, at the Bar tables at the three levels this litigation has so far had. You find it in the trial judge’s reasons, the expression “offending caravan”, “offending truck”, “offending truck and caravan”. You find it, as Mr Jackson has just pointed out, in the reasons of the Court of Appeal, which were unfortunately verbatim reproduced in order 15 by the parties.
GLEESON CJ: What appears to have happened is that the trial judge thought that, from the point of view of Mr Veigel, the collision resulted from the combined fault of Mrs Broughton and the driver of another vehicle which has conventionally in this litigation been referred to as the offending vehicle.
MR WALKER: That is right.
GLEESON CJ: The Court of Appeal said it was reversing the primary judge insofar as he attached any blame to Mrs Broughton and was intending to produce the same result as might have been produced if it had said the
new trial is to be conducted on the basis that all parties admit that Mrs Broughton was not at fault and the Court of Appeal finding that Mrs Broughton was not at fault regarded as the corollary of that that the learned judge was correct to say that there was somebody else at fault, according to the Court of Appeal, wholly at fault. Once again, the Court of Appeal could have directed an admission, could it not, that the driver of another vehicle was wholly at fault? And again it is referred to as the offending vehicle and they have intended to set for the trial judge the task of identifying the offending vehicle.
MR WALKER: A conventional label which has been applied to the vehicle which, on their findings – this is, after all, an appeal by way of rehearing – binding all the parties to the appeal, was driven out of the left‑hand into the right‑hand lane in such a way as to force Mrs‑Broughton across the dividing line without fault on her part. Those are the findings made by the Court of Appeal.
We submit, understanding their findings and the terms of order 15 and order 6, which is the premise of order‑15, means that the retrial, in our submission, must be understood as being on the basis that everyone remains bound by the appellate finding that there was a truck/caravan combination which did cross from the left‑hand lane into the right‑hand lane in such a way as to force Mrs Broughton into the path of my client’s motor car without any fault on her part, leaving only the question, but who is liable for that event? And that comes down to an open class of named people, some of whom have been joined as parties, and the residual class of the Nominal Defendant if no named person can be found.
Why I say an open group is, it is not so theoretical in this litigation that somebody else be identified. Why we say that is, after all, Mr Davis came in years after the event as a result of evidence given during the trial. It is for those reasons, in our submission, that we have proposed the wording in the document before you. It starts with an ellipsis because we do not wish to presume what orders your Honours might make, but were your Honours inclined in your discretion, having heard the parties and considered the matter, that the special leave application should be dismissed, in our submission, you could condition it or accompany it with a statement to the effect we have there set out which, for the reasons that fell out earlier in my answers to the Chief Justice in‑chief, would secure our position.
GLEESON CJ: Yes, Mr Seton.
MR SETON: Your Honours, two submissions. In relation to Mr Maconachie’s submissions concerning the immediacy of Mr Lear’s actions, the fact remains that he was extensively cross‑examined by
severalsenior counsel and at the end of the day the trial judge made a factual finding accepting his evidence that the vehicle, whose registration number he recorded, at the top of the hill was the same vehicle that he saw pull out and cause Mrs Broughton to swerve, and that was a factual finding which underpinned the learned trial judge’s judgment.
Secondly, in relation to my learned friend, Mr Jackson’s, submission concerning Mr Davis’ application for special leave being in a similar vein to the Nominal Defendant’s, in our respectful submission, there is a nice difference between an action brought against the Nominal Defendant as opposed to an individual. The case against Mr Davis is a separate cause of action in which each plaintiff says, “You, Mr Davis, drove the offending vehicle. You caused the accident”. They either prove that on the balance of probabilities or they do not.
An action against the Nominal Defendant is different in nature in that it in essence picks up the residual if the plaintiff fails against a particular defendant, fails to prove, for example, if Mr Dee and Bell remain in the trial and the Nominal Defendant was Mr Davis is let out, then the plaintiff will either prove, especially if the matter goes back on a retrial, your Honours, on a limited basis, it being assumed for that limited retrial that liability is in fact established in the part of the vehicle that pulls out, then the plaintiff will either prove it was the Dee/Bell vehicle or, failing to prove that, that it is a vehicle that cannot be identified. And that is the difference, in our submission, between the cause of action against Mr Davis and that of the Nominal Defendant.
HAYNE J: The vehicle you refer to as the Dee/Bell vehicle, is that Elwin Bell as distinct from Owen Bell?
MR SETON: Yes. Your Honour, Elwin Bell was the registered owner of the truck. Owen Bell was the registered owner of the caravan but the plaintiffs only needed to sue one or the other and they chose to sue the truck.
GLEESON CJ: Yes, thank you.
MR SETON: Those are my submissions.
GLEESON CJ: We will adjourn for a short time to consider the course we will undertake.
AT 10.34 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.39 AM:
GLEESON CJ: The disposition of the appeals to the Court of Appeal depended on the application of well‑established principles to the particular facts and circumstances of the cases. In particular, whether an order for retrial limited to some issues only should be made is a matter that has recently been considered by this Court in Waterways Authority v Fitzgibbon (2005) 221 ALR 402. The cases do not raise any issue of law suitable to a grant of special leave by this Court.
The order for retrial made by the Court of Appeal was framed by counsel following a direction by the Court of Appeal after publication of its reasons that the parties confer and provide the court with a draft set of orders. The orders were expressed in terms that were not quite as clear as desirable and this is a problem, in particular, in relation to order 15.
However, argument of the several applications for special leave reveals that the retrial ordered by the Court of Appeal is to proceed on a number of bases that are not open to contest. One concerns the position of Mr Veigel. It has never been in issue and will not be in issue on the retrial that Mr Veigel will succeed and that there will be no finding of contributory negligence on his part. This appears both from the oral argument of all counsel and from page 159 of the application book.
The retrial is to proceed on the following bases which are implied in order 15 of the orders made by the Court of Appeal:
(a)A vehicle referred to in that order as “the offending vehicle” pulled out into the path of the vehicle driven by Mrs Broughton when Mrs Broughton’s vehicle was overtaking vehicles in the left lane of the highway;
(b)The driver of the so‑called “offending vehicle” was at fault in pulling out into the path of Mrs Broughton’s vehicle and that fault was a cause of the collision between Mr Veigel’s vehicle and Mrs Broughton’s vehicle;
(c)The only available answers to the question about the identity of the owner/driver of the offending vehicle are (1) Mr Elwin Bell, (2) Mr Jamie Dee, (3) Mr Dean Davis or (4) that the identity of the vehicle cannot, after due search and inquiry, be established. Consistently with the orders made by the Court of Appeal and implicit in order 15 was that Mrs Broughton herself was not at fault.
On that understanding of the orders and, in particular, of the meaning of order 15, we are not persuaded that it is in the interests of justice generally or in the particular cases for there to be a grant of special leave in any of these matters. In each application the application for special leave to appeal is refused with costs.
We will adjourn for a short time to reconstitute.
AT 10.44 AM THE MATTER WAS CONCLUDED
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