The Waterways Authority v Fitzgibbon & Ors

[2005] HCATrans 319

[2005] HCATrans 319

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S513 of 2004

B e t w e e n -

THE WATERWAYS AUTHORITY

Appellant

and

DANIEL GERARD FITZGIBBON

First Respondent

MIDDLE HARBOUR YACHT CLUB

Second Respondent

MOSMAN MUNICIPAL COUNCIL

Third Respondent

Office of the Registry
  Sydney  No S98 of 2005

B e t w e e n -

MOSMAN MUNICIPAL COUNCIL

Applicant

and

DANIEL GERARD FITZGIBBON

First Respondent

THE WATERWAYS AUTHORITY

Second Respondent

MIDDLE HARBOUR YACHT CLUB

Third Respondent

Office of the Registry
  Sydney  No S131 of 2005

B e t w e e n -

MIDDLE HARBOUR YACHT CLUB

Applicant

and

DANIEL GERARD FITZGIBBON

First Respondent

THE WATERWAYS AUTHORITY

Second Respondent

MOSMAN MUNICIPAL COUNCIL

Third Respondent

Applications for special leave to appeal

GLEESON CJ
McHUGH J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 19 MAY 2005, AT 10.23 AM

Copyright in the High Court of Australia

__________________

MR J.L. GLISSAN, QC:   If the Court pleases, I appear with my learned friend, MR J.S. WHYTE, for the appellant.  In relation to the applications for special leave, I appear for the second respondent in each matter.  (instructed by McCabe Terrill)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends, MR D.A. WHEELAHAN, QC and MR E.G. ROMANIUK, for the first respondent.  In relation to the applications for special leave, I appear with the same counsel for the first respondent in each matter.  (instructed by Paul A. Curtis & Co)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR R.J. CHENEY, for the second respondent.  In relation to the applications for special leave, I appear for the applicant in S131 of 2005 and the third respondent in S98 of 2005.  (instructed by Riley Gray‑Spencer)

MR M.T. McCULLOCH, SC:   May it please the Court, I appear with my learned friend, MR S.P.W. GLASCOTT, for the third respondent in the appeal.  In relation to the applications for special leave, I appear for the applicant in S98 of 2005 and the third respondent in S131 of 2005.  (instructed by Phillips Fox) 

MR JACKSON:   Your Honours, may I, before my learned friends start, deal with the question of our application for leave to file a notice of contention out of time in the matter that is the appeal.  There is no objection by the other sides to our doing so and we would seek an extension of time today to allow that to be done.

GLEESON CJ:   That is not opposed, Mr Glissan?  Are you happy with that?

MR GLISSAN:   Not opposed, your Honour. 

GLEESON CJ:   Yes, you have that extension.

MR JACKSON:   And your Honours may I say that if a special leave is granted in the other two matters we would file a notice of contention in exactly the same terms in each matter.

GLEESON CJ:   Yes, Mr Glissan.

MR GLISSAN:   If your Honours please.  Your Honours, this appeal raises two issues for determination by the Court, we trust, leaving aside the question of costs.  It is also a matter that was agitated in the special leave application.  One is a further step on a well‑trodden and well‑understood path in which we say the Court of Appeal erred significantly.

McHUGH J:   It is a path that seems to have wound back a bit recently, is it not?

MR GLISSAN:   Your Honour, it is a path that seems to have slightly changed direction perhaps one can say, but I would not have said wound back, but that issue of course is when and in what circumstances should a Court of Appeal overturn a trial judge in relation to an issue of fact.  But really, we would say so far as this case is concerned, to encapsulate or indicate at least what we propose to argue about it, that it really matters not whether one looks at Fox v Percy or Whisprun at one end of the path, or at Dearman v Dearman at the other end of the path.  In this case, the result would have and ought to have been the same that the Court of Appeal should not have interfered.

The second point is perhaps more novel, if not completely novel.  When and in what circumstances when a court of appeal orders a retrial, should it operate or activate its powers under section 75A and ‑ ‑ ‑

GLEESON CJ:   Which is the particular power in question?

MR GLISSAN:   Your Honour, so far as section 75A is concerned, that section provides in subsection (10) that a Court of Appeal:

may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires.

GLEESON CJ:   That, presumably, would not include a direction to believe a witness.

MR GLISSAN:   Well, your Honour, that would be my submission.  We say that however broad the power that is granted under section 75A – and that must confine the rules that are made pursuant to it – however broad the power, where there is to be a retrial, the law that has been the law for the best part of 270 years, that it should be a retrial on all issues except in exceptional circumstances, should obtain. 

McHUGH J:   Yes, but those cases were decided in a context absent section 75A.

MR GLISSAN:   Certainly.

McHUGH J:   And 75A was brought in to deal with the sorts of problems that arise in the common law situation.

MR GLISSAN:   Well, your Honour ‑ ‑ ‑

McHUGH J:   What is the difference, in the conduct of the trial, the new trial, between your side making an admission about a particular fact and the court making an order to the same effect?

MR GLISSAN:   Well, there is a significant difference where there is an issue between the parties and an admission made by one side of a particular fact is that it is an admission here.  What the Court of Appeal did was to impose a determination on the very matter that determined the first trial in favour of the appellant and was a critical issue in determining whether or not the plaintiff could in any circumstances succeed, namely, whether he voluntarily left the jetty and sustained the injury, or whether he did so inadvertently or involuntarily. 

HAYNE J: Does the history of new trials, particularly the terms in which section 160 of the Common Law Procedure Act 1899 (NSW) stood, bear upon the issue? There, under 160(a):

In any action in which a new trial is granted the Court may –

(a)      impose such conditions on and direct such admissions to be made by either party for the purpose of such new trial as the Court thinks fit;

MR GLISSAN:   There are two answers to that question, your Honour.  Essentially, that is not materially different to the operation of section 75A, we would say.  So that to that extent, yes, those cases do bear.

HAYNE J:   That is, does your argument become one about power or does your argument become one about whether a power which exists ought to have been exercised in the circumstances of the case?

MR GLISSAN:   We have adopted the second approach.  We do not challenge the existence of the power, reading section 75A in a broader context, but the question that arises is, in what circumstances ought the power be exercised?  Those are circumscribed by all of the ordinary rules that attend the exercise of any judicial discretion.  It is perhaps not inappropriate, and partially in answer to Justice McHugh’s earlier question, to look at what it was the Court of Appeal did and in the context of this case to look at the pleadings to see what the issues were between the parties, because they also affected the way the trial and the appeal were conducted.

The order that was sought, although it was raised faintly in argument and in the written submissions in reply, which were filed with the Court, did not form part of the relief sought in the notice of appeal.  If I could take your Honours to that.  It is at appeal book – no, it is not.  I am sorry, your Honours.  Pardon me for a minute.

HEYDON J:   Page 571-577?

MR GLISSAN:   Yes, thank you, your Honour.  It is that page that is set out.  The orders that were sought were order 3 and order 5, so far as they are relevant:

In lieu thereof verdict and judgment for the appellant against each of the respondents on the issue of liability with the matter remitted . . . on damages.

Alternatively:

(a)      Proceedings remitted to the Supreme Court for determination of all issues.

Now, it must not be lost sight of that the basis on which special leave was sought in this case was a procedural fairness point as well.  At the hearing of the appeal it was accepted, it would appear, by the court that that relief was the relief that was being sought.  It was the understanding of all parties that if there was to be a new trial, that would have been very much in issue, but that was the order that would be made.  That appears very conveniently in the transcript in only a page or two, between 618 of the appeal book and 621.

Your Honours will see at 618, starting at about line 15, there was a submission made to the court which was that the verdict should not be disturbed.  The submission was then made, at about line 28:

If the Court takes a different view, all issues in our submission, must go back for a retrial.

MEAGHER JA:       I think that must be so.

The transcript then goes on with Justice Foster, who ultimately wrote the judgment, saying:

A retrial on all issues is what you’re putting, including this issue –

which was the issue of Dr Trevithick’s evidence, it being related to whether or not there should be a new trial, or the verdict should not be disturbed.

It was put on our side: 

GLISSAN:    Yes, that’s exactly right, your Honour, it all needs to be reagitated, if it has to be reagitated at all. 

Counsel for the second respondent then to the appeal, at lines 55 and 56 of that page:

The only issue I wanted to speak to which seems now to be uncontroversial is the last one that if your Honours were minded to allow the appeal, it would have to go back on all issues for reasons that have been expanded elsewhere.

MEAGHER JA:       I don’t think you’ll find much difficulty about that.

Counsel for the second respondent to the appeal simply adopted that position.  There it was left, so far as the respondents were concerned.  When one looks at what was said in reply by counsel for the then appellant, it was put on the basis of a reasons case, a Soulemezis v Dudley case, which was a clear indication it should go back for a retrial on all issues.  The way the case was conducted on the appeal was also – on that Soulemezis v Dudley line of authority – conducted on the basis that the trial judge had not clearly expressed his reasons sufficiently to support the judgment.

GLEESON CJ:   There might be an ambiguity in the word “issues”, but “issues” I would understand would be defined by the pleadings.

MR GLISSAN:   Yes, the pleadings I have taken your Honours to.  That is clear that the orders that were sought were in the alternative, either a verdict, which the court was not prepared to grant for a range of reasons, one would think.  There were other defences.  There had been no determination as to damages at all in the judgment of Justice Newman.  As well, this was a very live factual issue.

GLEESON CJ:   It was a fact relevant to a fact in issue, I presume?

MR GLISSAN:   Yes, but it was capable of being more than that because, if the doctor was accepted – and the plaintiff did not make a denial about this evidence at all.  The plaintiff at the highest said that he could not remember speaking to the doctor.  There is one answer that might be ambiguous in the transcript and I will take the Court to that in a moment, but the essence of the plaintiff’s evidence was that he did not remember speaking to the doctor or the ambulance officers or saying anything about how he came to be in the water.  He simply did not have any recollection of it.  He was not in a position to deny that he had said it, but his evidence at the trial was he had not dived in.  He had either been jostled or had fallen.

GLEESON CJ:   But there is a question of the meaning of that.  There is one thing that is becoming more and more obvious from a series of catastrophic injury cases, and that is that the word “diving” has different shades of meaning.  What he said to the doctor might well have been correct and yet consistent with the evidence of the witnesses who were relied on by Mr Wheelahan.

MR GLISSAN:   That may be.  That would not in any way affect the result of this appeal, in my submission, though, for two reasons.  First, in relation to the trial judge, it is exactly to determine that sort of issue of shades of meaning and make findings of that kind that the trial judge hears and determines the trial.  So that, at the first step, that would not be a reason for setting aside his conclusion merely because the Court of Appeal may have reached a different one. 

Secondly, it would be a powerful reason for sending this matter back, if it is to go back, for that issue, among others, to be determined.  So that it is a powerful argument, we would say with respect, for a retrial on all issues, not a retrial limited by narrowing or confining the issues.

McHUGH J:   But does it come to anything more than it takes away the causation issue?  It still leaves open the question of standard of care, breach of duty.  It still leaves open, perhaps, contributory negligence, although that would seem to be a dead issue, I think.

MR GLISSAN:   If he ‑ ‑ ‑

McHUGH J:   Except in the sense that it does not kill off contributory negligence, because contributory negligence lay in the fact that he was so close to the edge with a crowd around him.

MR GLISSAN:   It confines it much more tightly than it otherwise would be confined.

McHUGH J:   Why could not the Court of Appeal have said, “We will send this back for a retrial on the issue of breach of duty or on contributory negligence”?  Why could it not have done that?

MR GLISSAN:   It could have done that.  I mean, that is ‑ ‑ ‑

McHUGH J:   Is that not what, in effect, it did?

MR GLISSAN:   No, with respect.  What it did was to take away what was a central factual issue about which there were competing bodies of evidence.  One of the ways, if you test it, that you can look at it is to say this.  This was not a case where there is a mere scintilla of evidence.  There is evidence which is capable, if accepted, of being an admission by the plaintiff that he dived and therefore was the author of his own misfortune.  Causation, certainly. 

If that evidence was admissible, and it was not challenged, it was not just the evidence of Dr Trevithick.  It was the evidence of Dr Trevithick supported by his own contemporaneous note, supported by a hospital note by another practitioner, and supported by the ambulance report.  It was not suggested that Dr Trevithick’s recollection or Dr Trevithick’s history came otherwise than from the plaintiff and his friends at the hospital.

HAYNE J:   But the bite in that proposition is “and his friends”, is it not? 

MR GLISSAN:   The bite in that proposition may well be that.  That is a question, though, for the trial judge, surely.  I go back to the same proposition.

McHUGH J:   But why?  The Court of Appeal holds that on the way the case was conducted, you could not find for the defendant on the issue of causation.  Why cannot the Court of Appeal say that?  Why can it not make an order that, say, would send this back on all issues except causation?  That is all this goes for, and, of course, it has an impact on one aspect of contributory negligence, but it leaves contributory negligence at large.  It leaves breach of duty at large, it leaves damages at large.  It does not seem to me to come to anything more than exclude your argument on causation.  But there is no causal connection between the defendant’s negligence and the damage that the plaintiff suffered because, notwithstanding the negligence of the defendant, he was the author of his own wrong.

MR GLISSAN:   The next question that arises in relation to all of that, though, is, in what circumstances that power ought to be exercised, and there are two difficulties that we advance in relation to that, the first of which is, it ought not to be in the absence of hearing argument about that precise matter.  There was no ‑ ‑ ‑

HAYNE J:   It seems that a further answer that might have to be made to the proposition is that either the Court of Appeal has gone too far, or not far enough.

MR GLISSAN:   That might be right.

HAYNE J:   But we are in no man’s land at the moment with this curiosity of an order saying, “Go back to fight a case on a particular basis”.  Rather, if the question of causation is being determined, let it be identified causation of what, by what, rather than a perhaps equivocal specification of what it is that is being determined by the court.

MR GLISSAN:   The second part of that, if I can adopt that and try to add to it, may be this, that by doing it not in terms of causation, but by doing it in terms of the factual issue it places a very difficult burden ‑ ‑ ‑

HAYNE J:   The difficulty stems from the notion of issue.  Yes, I understand that it is perfectly appropriate to speak of there having been a factual issue at trial in the sense of a controversy.  But is it right, is it open to a court of appeal to determine something that perhaps could not have been set for trial as separate question or separate issue?  Now, the word “issue” masks more than it reveals.  Where do you say we should go with that undifferentiated thought other than to say, “Yes, I’ll have that”, because the next question is, “What are you having?”

MR GLISSAN:   Absolutely.  I hope I can do better than simply say I will have it and leave it undifferentiated, your Honour.  The problem lies in the fact that taking away causation, if that was what was truly intended to be done, left everybody in a no man’s land, because the evidence - there was no suggestion that that evidence was not admissible or would not remain admissible.  It may have doubtful admissibility at a second trial if there was a determination of the fact on which it was based.  But it was capable of affecting the course of the hearing, not only in relation to the way Justice Newman dealt with it at first instance, but on those other aspects of the case that Justice McHugh has identified, contributory negligence and the like so the Court left the evidence of the doctor available to the trial judge, but confined his use of it.  So that is the first ‑ ‑ ‑

GLEESON CJ:   Whether you define issue in terms of the pleadings or in terms of legal principles by talking about duty, breach of duty, causation and so forth, this matter is at the most a fact relevant to an issue, is it not?  It is not a fact necessarily legally conclusive of any issue.

MR GLISSAN:   No.

GLEESON CJ:   Subject to that admission or concession that was said to have been made at the hearing, the meaning of which I find a little elusive, because I am not sure in the context of a case like this precisely what it means to say either he dived or he did not dive when his case is that he was pushed, lost his balance, swung his arms around in the air and then went in head first.  I do not have any difficulty describing that as a dive.

MR GLISSAN:   No, and there is a great body of evidence from the partial eyewitnesses, as they are described in my friend’s submissions, that supports that view in the sense that as he was moving through the air he put himself into the position of a diver.

GLEESON CJ:   Well, if you look at page 377 of the appeal book in paragraph 23 there is an account from one his friends of what happened.

MR GLISSAN:   Yes.

GLEESON CJ:   It sounds to me like something that could be described as him diving.

MR GLISSAN:   Yes, that is certainly right.  The question ‑ ‑ ‑

GLEESON CJ:   As I understand the Court of Appeal’s reasoning, something seems to have happened at trial by way of a concession that led the trial judge to the conclusion that once he found that the doctor’s note was accurate that was the end of it.

MR GLISSAN:   That is perhaps not entirely fair to his Honour or his Honour’s reasons, your Honour, because if you go to his judgment at paragraph 27 where he starts to deal with this issue, it is 561 of the appeal book, his Honour there sets out really in reasons that we would say were not in any way defective his process for arriving at the conclusion that he did.

GLEESON CJ:   Where does he refer to the “concession”, and that might be my word rather than his?

MR GLISSAN:   Yes.  I am not aware of it in the judgment but if the Court looks at his reasoning process for a moment to see what it was that he did you can see why he arrived at the conclusion he did and why this evidence assumed more than might have been thought to be its ordinary importance as a fact only relevant to a fact in issue.  What his Honour did was to look at the plaintiff’s evidence.  He by no means gives the plaintiff a powerful case as is put by the plaintiff both in the Court of Appeal and in submissions here.  He says no more than this in real terms in paragraph 27 that the plaintiff gets over the line, as it were, and has a prima facie case, that absent any defence case, even though there are contradictory elements at page 562, line 10, those contradictory elements, while troubling, are not sufficient to displace his base view that the plaintiff has established a case.  Your Honour, really, at common law on a balance of probabilities onus, that is every plaintiff’s case because if the plaintiff does not get to that point there is no case for the defendant. 

GLEESON CJ:   It is fairly obvious, is it not, that the Justice Foster got his formulation of the issue from the bottom of page 549 and the top of page 550?

MR GLISSAN:   Yes, I think that is fair.

GLEESON CJ:   It is taken almost word from word from paragraph 6 of the judgment of the trial judge.

MR GLISSAN:   Yes, and of course that was the defendant’s case.  The defendant’s contention was, if he entered the water deliberately then the issue of causation had to be resolved in favour of the defendants probably ‑ ‑ ‑

GLEESON CJ:   Yes, but there is a difference between saying he entered the water deliberately and saying he dived.

MR GLISSAN:   In the context of this case, no, because in the context of this case that was the defendant’s case based on not just Dr Trevithick but the various sources of that information that he dived - Dr Trevithick, the ambulance report, the other doctor, and so on.

GLEESON CJ:   Dr Trevithick’s note is not inconsistent, is it, with what appears on page 377?

MR GLISSAN:   No, I do not think it is, your Honour.  What appears on page 377 is his note ‑ ‑ ‑

GLEESON CJ:   I am sorry, page 377, the friend’s version of what happened.  I realise this is just one of a number of pieces of evidence but, in paragraph 23 on 377, the friend gives an account of what happened that is quite consistent, is it not, with him telling Dr Trevithick that he dived in?

MR GLISSAN:   Is not the important question what the plaintiff told the doctor about his conduct because saying to somebody, “I dived, I adopted a conscious and deliberate step, I dived” - active voice verb, cannot be misunderstood one would have thought, with respect, is very different to saying, “I was jostled or pushed and in trying to save myself I tried to effect a dive”.  They are very different things, they cannot be reconciled. 

The answer to your Honour’s question has to be no.  They are inconsistent.  What he told the ambulance officer, “I dived”, what he told Dr Trevithick, “I dived”, what he told the triage nurse, “Jumped crossed out – dived”, as it appears in the transcript, are all inconsistent with being jostled or pushed, so that they cannot be reconciled.  To that extent, his Honour was quite right. 

Let us not just go too far from the way his Honour considered it, because what happened in his Honour’s judgment was that he said, “The plaintiff, despite inconsistencies” – and there are some glaring inconsistencies in his case – “had reached a point where I was satisfied that he had discharged the onus”.  The defendant went into evidence, and his Honour then did what he was obliged to do to discharge his obligation.  He waived the plaintiff’s case in the light of the defendant’s evidence, in the light of those three pieces of internally consistent material which was different to the case the plaintiff was putting, and he found the plaintiff’s case wanting.

The first proposition that flows from that is, he did exactly what this Court has said, in Fox v Percy and in Earthline, he should do.  He looked at the objective material.  Trevithick’s note was contemporaneous, the ambulance note was contemporaneous, the evidence of the eyewitnesses was internally inconsistent, utterly incomplete and, in any event, nearly all of those statements, including the one to which your Honour just referred me, were made about a year after the event.

GLEESON CJ:   Were they made in the light of knowledge of the contents of the hospital reports?

MR GLISSAN:   I would be very surprised if they were, your Honour.  My understanding of our case is that it was not until quite late in the day that the defendants became aware of the existence of Dr Trevithick’s note and the hospital reports.  So I think the answer is that it would be reasonable to infer they were not.  They were, however, made, if the Court is minded to look at the hospital notes which are in the appeal book, in the context that 25 or so of these young people had some time afterwards congregated together at Middle Harbour Yacht Club, all in need of counselling because they were distressed at what had happened to Daniel, and the social worker – it is at page 444 of the book, I think.  That is not the right page, I am sorry, your Honours.  I will have Mr White find the passage.  But in all events they had congregated at the Middle Harbour Yacht Club for counselling because of being distressed.

Now, that was not an issue that was agitated with any of them at the first trial, but it might well be something that would be thought to be of forensic advantage at a second trial in relation to whether or not there is the possibility of contamination of their evidence, whether or not they were – not in the sense that my friend uses in his submissions, but in the more traditional sense – partial eyewitnesses.  On the other side of the coin, Dr Trevithick was entirely impartial, as were the ambulance officers.  It was evidence that was available, it was evidence that was not distinctly denied by the plaintiff.  So there was no reason or basis for the judge to say, “Well, I’m in the comfortable position of, notwithstanding Dr Trevithick’s evidence, being able to accept the plaintiff and reject him because the plaintiff’s made a clear denial of this, and it was material which was open to him to act on”.

All he did in relation to that evidence as it appears from his judgment after paragraph 27 in that passage I took your Honours to was to say, “Up to that point I took the view that the plaintiff had, perhaps only just, discharged the onus.  After that point, after I saw that material, applying both logic and common sense and what this Court had said in Fox v Percy, I look at the objective material.  I find the plaintiff’s case wanting.  He no longer satisfies me at this stage, taking this material into account, that the onus has been discharged”.

GLEESON CJ:   Did the trial judge explain why he thought it was impossible to reconcile Dr Trevithick’s note with the evidence of the plaintiff’s witnesses?

MR GLISSAN:   No, he merely said that that was the view that he took.  He certainly did not say that.  He said that the cross‑examination, which was 20 or so pages of powerful cross‑examination, confirmed his evidence‑in‑chief.  He accepted that Trevithick had a clear recollection of the events.  He was supported by the evidence of Dr Liston, he was supported by the ambulance service, and on that basis he took the view that the plaintiff had not made out his case, particularly when you take into account the fact that none of the eyewitnesses are truly eyewitnesses.  They all see bits and pieces.  We have put a list of references, which I would not take the Court to unless you wished me to, in our submissions in reply which set out those defects. 

The plaintiff’s case was by no means a strong case.  Regrettably, while it was Justice Foster’s view that it was glaringly improbable that somebody would dive into the water in the circumstances in which the plaintiff found himself, common experience suggests that just is not so.  People do do exactly that.

McHUGH J:   It would be glaringly improbable if he knew the depth of the water.

MR GLISSAN:   Absolutely.  May be one thing, but he did not dive in at the same point that the other fellow Wilmott, who had been thrown in, was frolicking in the water, if that is the right way to describe it.  He dived in at a point further down the jetty where he would as an experienced sailor at the very least know that the water would be at least somewhat deeper, and he dived in close to a pontoon, if your Honours look at the photographs, which was a permanently floating pontoon.  So that at that point he might well conclude that the water was deep.  There was not enough material there to justify a conclusion that his diving, particularly in the social context in which it took place, in the context in which he had had some alcohol - not very much explored with him in cross‑examination, but he had had some alcohol.  The ambulance officers had a record of his having been drinking rum and coke.  Dr Trevithick had a record of him arriving having smelt of alcohol but not sufficiently to affect him in terms of neurological examination.  The other doctor’s note, which is at 564, was:

previously well; acute spinal injury secondary to diving into shallow water under the influence of ETOH –

which your Honours might accept is alcohol.

So there was some evidence and there was a significant body of evidence from the eyewitnesses of the drinking, of the nature of the function that went on.  One of the witnesses on whom reliance was put by the respondents both here and in the court below was a Mr Moon, who was a bit of a mixed bag for the plaintiff because he put the plaintiff as one of the people who was involved in throwing Wilmott into the water, which the plaintiff denied.  If Moon was accepted on that, it would give an indication of the plaintiff’s general conduct on the night.

The problem with all of this is, this is all fact.  It is all fact and it was not fact that it was open to the Court of Appeal, in my submission, to go trawling through to get the plaintiff up.  It just simply was not, because it flies in the face – whether you take the more moderate view that might be seen to be in Justice Callinan’s judgment in Fox v Percy or the more traditional view that might flow from Abalos, in neither case was there any warrant or justification for revisiting facts determined by the trial judge in this case, particularly in the light of what this Court had said in Earthline and Fox v Percy.  That is the way we put that point.

Once you get to that point, if that be right and if those judgments starting with Dearman and coming all the way through be correct, and if your Honour the Chief Justice in Whisprun is right, when your Honour said that judges do not have to, in their reasons, explain every step in their reasoning process, they need do no more than make clear how they have arrived at their position, and that, with respect, we would say must be right, then, if that is the case, his Honour in this case did nothing wrong.

GLEESON CJ:   I got that reference to a concession from page 629, paragraph 14.

MR GLISSAN:   That is right.  This is in the judgment?

GLEESON CJ:   Of Justice Foster.

MR GLISSAN:   Line 14?

GLEESON CJ:   Page 629, paragraph 14.

MR GLISSAN:   Para 14.

GLEESON CJ:   “It was accepted that”.

MR GLISSAN:   I think it was – and I do not want to do violence to this because this is not something, as is obviously clear to the Court, that I have been alive to as a matter to argue.  But it may be that Mr Hislop made that concession in the Court of Appeal when he was arguing it, and I think that might be the source – 579, I am told, your Honour, is where that will be found.  Line 50:

the case was run on the basis that if he’d deliberately dived that was the end of it for him, your Honour –

in answer to a question of Justice Meagher’s.  It goes on a bit from there.  So it does seem – and, of course, your Honour, if I can say, that must be right because it was conducted both in the Court of Appeal and at first instance, as Mr Hislop says at 580, as a handrail case.  In other words, if the handrail had been there when he was jostled or pushed, he would not have fallen in.

GLEESON CJ:   It was not a warning case.

MR GLISSAN:   It was not a warning case.  It was not a warning case.  That is certainly made clear, and that I can take your Honour to at, I think, the end of the transcript in the Court of Appeal from 620 to 621, starting at about line 25, if the Court would go to that.  Once your Honours read that, that enlivens even further the argument that this ought to go back, if it goes back at all, to a retrial on all issues.  Because the reasons complaint, as it is articulated at the end of the day by Mr Hislop in the court below, is that his Honour never properly considered what he says is a clear, powerful and strong case that he did not deliberately dive, but rather he lost his balance and fell.  Now, that starkly puts the two different positions taken by the parties on which this evidence critically bears, or is capable of critically bearing. 

HEYDON J:   Mr Glissan, Mr Justice Foster at the end of his judgment seemed to isolate as a reason for decision the proposition that the trial judge had not given adequate reasons for his judgment.

MR GLISSAN:   Yes.

HEYDON J:   Your notice of appeal does not challenge that ground of decision, nor do your written submissions.

MR GLISSAN:   I do not know that the written submissions do not, your Honour.

HEYDON J:   Which part of your written submissions challenges it?

MR GLISSAN:   No, but ‑ ‑ ‑

HEYDON J:   I mean, I can understand your tension that order No 3 in the Court of Appeal is open to criticism, but the most you can hope for is an order for a new trial, is it not, with the notice of appeal in that condition?

MR GLISSAN:   The notice of appeal does ask for the relief we seek which is the restoration of his Honour’s verdict.

HEYDON J:   Yes, but we have to look at three grounds, and none of them mentions inadequacy in Justice Newman’s statement of reasons.

MR GLISSAN:   I just wanted to have a look at the notice of appeal if I may, your Honour, before I ‑ ‑ ‑

HEYDON J:   It is on pages 687 and 688.

MR GLISSAN:   Thank you.  Well, your Honour, I would have wanted to argue that ground 2 necessarily carried with it, if successful, the conclusion that it was not open to the Court of Appeal then to interfere with the trial judge’s verdict in the first place, because if the Court of Appeal truly erred in interfering with the trial judge’s finding that the evidence of Dr Trevithick was reliable, there was no other basis on which it was said that his Honour’s reasons were inadequate.  The way the argument was put in relation to reasons was his Honour did not properly and fairly deal with the case – what was said to be a powerful case that the plaintiff was jostled and pushed rather than fell.  That depended on ‑ ‑ ‑

HEYDON J:   In a nutshell –sorry.

MR GLISSAN:   Sorry.

HEYDON J:   I interrupted you. 

MR GLISSAN:   No.

HEYDON J:   You continue.  Well the thing is - the point that Mr Justice Foster makes is that, why perhaps the trial judge gave reasons for finding Dr Trevithick to be reliable, he did not give any reasons for rejecting any of the plaintiff’s witnesses, and that would have left the plaintiff with a sense of grievance.

MR GLISSAN:   He did, however, in that passage at paragraph 27 that I had started to take your Honours to, deal with and – actually, that is not quite right.  Earlier than that at page 556 of the appeal book, his Honour analysed at least some of the evidence that was called by the plaintiff ‑ ‑ ‑

HAYNE J:   He records it.

MR GLISSAN:   Yes, your Honour.

HAYNE J:   Yes.

MR GLISSAN:   But first he records what they say and reading that identifies some of the areas where the evidence was not supportive of the plaintiff’s case in the way that the plaintiff might have hoped, and that is to be found ‑ ‑ ‑

McHUGH J:   His Honour did not uphold lack of reasons as an independent ground of appeal, did he?  He seems to make it plain at 675 the reason why he refuses to order a new trial is because of the lack of reasons.  At 675 he says:

These considerations –

which is a reference back to the discussion of Mifsud and other cases –

compel me to the view that, unless this Court is in a position to decide this matter for itself, on the evidence in the appeal books, then a full re-trial must necessarily be ordered.

Then he says: 

However, I have come to the conclusion that the appellant’s primary submission ‑ ‑ ‑

HAYNE J:   Now, the complaint that is identified earlier in the reasons of Justice Foster seems to be, does it not, that there is no satisfactory analysis of what, without any criticism, is a series of partial views of what happened, as is inevitably the case when you have a number of partial eyewitnesses, and there is no resolution of how the whole body of evidence is to be understood.

MR GLISSAN:   Beyond identifying, at 558, going back to Justice Newman’s judgment, at 558 line 30, the inconsistency between some evidence of some of the plaintiff’s witnesses.  At 562 reference to the contradictory elements ‑ ‑ ‑

HAYNE J:   But stay with the Court of Appeal with me for a moment, would you.  In the Court of Appeal, as I understand Justice Foster, he says there is no sufficient analysis of the whole body of evidence ‑ ‑ ‑

MR GLISSAN:   Yes, that is ‑ ‑ ‑

HAYNE J:    ‑ ‑ ‑ or at least none recorded sufficiently in the reasons.

MR GLISSAN:   That is a proper reading of what he says, yes.

HAYNE J:   And yet, at the end of having made that point, you then go to the next point, “Well, the Court of Appeal can make that analysis, not having seen or heard the eyewitnesses, and conclude that the man did not enter the water deliberately”.  Now, do you criticise that second step?

MR GLISSAN:   I certainly do.  We have great difficulty with that second step for a number of reasons, and they are the reasons that have been articulated by this Court over and over again – not least to take an example of what Justice Kirby said in Earthline, that the true advantage of trial judges may not depend on demeanour alone or demeanour at all, but it is the fact that they hear the whole of the case in context, particularly in long cases.  This case ran for a number of days – about eight days of real evidence and over a period of about 20 days.  They hear it in a logically structured and presented form and they do not only hear, as does a court of appeal, even an intermediate court of appeal, only those passages of the evidence that counsel contending for one view or the other select for them to see.

GLEESON CJ:   They do not only read the headlines.

MR GLISSAN:   I know they do not only read the headlines, your Honour, and I do not suggest that for a minute, but they do not have the advantage of seeing the case as it is conducted, and there is a very great difference between reading words on the printed page in transcript form and hearing it and judging it and weighing it.  His Honour in this case may not have given the most fulsome judgment that the Court has ever seen, but he did attend to the elements that he had to.

HAYNE J:   Where do we find the analysis in Justice Newman’s judgment?  I see the record, but where do we find the analysis piecing the bits together?

MR GLISSAN:   All you can do in that – it is starting at paragraph 27, going for the next five or six paragraphs, where I had taken your Honours earlier.  That is where such analysis, as there is, is to be found.  Going on 564 he deals with the plaintiff’s submissions in relation to whether or not Dr Trevithick should be accepted.  Over at 565 he goes through a further analysis of that material, and at paragraph 41 on 565 he says:

Putting aside any considerations of onus of proof, looking at all the evidence dispassionately I conclude on a balance of probabilities that the plaintiff entered the water because he dived from the jetty.

GLEESON CJ:   That must mean deliberately dived for his own amusement.

MR GLISSAN:   That does mean deliberately dived, yes.  That is the way the case was conducted, it was conducted on that issue.  It is not realistic, your Honours, to expect more of a trial judge than that he identifies his reasoning process.  It is not necessary for him to analyse the evidence of each witness and it is not necessary, even in this case, for him to have concluded that he rejected the evidence of the eyewitnesses in whole because there was not one eyewitness called who gave evidence which could be accepted on the plaintiff’s side that the plaintiff was pushed.  The evidence strongly was that there was not anyone close enough to him to push him.

GLEESON CJ:   Was it necessary for him to explain why a conclusion that Dr Trevithick’s evidence was honest and reliable was not necessarily inconsistent with an acceptance of the plaintiff’s witnesses?

MR GLISSAN:   If the plaintiff’s witnesses had said or had been able to say, “I was standing near the plaintiff.  I saw a person, whom I cannot now identify, bump into him and I saw him fall”, the answer would be yes.  In the state of the evidence as it was in this case, the answer to your Honour’s question is no.  He need do no more than say there was no one. 

Tested from an onus of proof point, if I take the context out of it, take the witnesses out of it altogether, and think about it from the point of view of the onus and how you would express it, the plaintiff says, “I was jostled or pushed”.  The plaintiff has previously and contemporaneously with the injury said on the objective material, “I dived”, not once, but at least twice to different people who have no interest in the matter.  Leave it at that point, the plaintiff cannot succeed, one would think, unless the evidence of those objective observers is rejected, the plaintiff stands alone.  The question then is, is the plaintiff corroborated in any substantial way?  First, the plaintiff is not himself able to give a particular version of events.  He does not say, “I was pushed”; he says, in the alternative, “Either I was jostled or I tripped on a 200 millimetre high toe rail”.  They are themselves inconsistent and would raise a question about the plaintiff’s case. 

Next, add to that that there is no eyewitness who is able to say what happened to the plaintiff.  Each of them can say part only of what he or she observed, mostly because their attention was, understandably, not on the plaintiff but on the man, Wilmott, who was in the water.  All of those people were in the same position.  It was, on any version, rowdy, crowded, there was alcohol flowing freely and what they said when they were tested – not necessarily what they said in‑chief you understand, but what they said when they were tested – was, “I only saw the plaintiff in the air.  I saw him moving forward”.  “I saw him stretch his hands out in what appeared to be a racing dive”, one of them says in answer to a question of the cross‑examiner, things of that kind.

GLEESON CJ:   But if the plaintiff had said to Dr Trevithick, “Because of the crowded conditions on the jetty, I lost my balance and I went into the water”, and Dr Trevithick set out to cross-examine him and said, “What do you mean ‘went’?”, he might have said, “Well, I dived”.

MR GLISSAN:   He might, but that was not the evidence.

GLEESON CJ:   What are the competing possibilities, to go in feet first or to go in ‑ ‑ ‑

MR GLISSAN:   Flat on your back, I suppose.

GLEESON CJ:   Belly flopper?  Diving would be a not unnatural thing to do if you lost your balance because of the crowded conditions on the jetty.

MR GLISSAN:   It is always better, your Honour, to have some evidence to support conclusions or inferences rather than merely to be able to speculate about a range of possibilities.  That was the difficulty the plaintiff had.  Really this plaintiff’s case depended for its success on the trial judge having a number of snippets of evidence, none of which was conclusive one way or the other, and speculating about them.  They are not truly evidence which is capable of supporting an inference properly drawn.  Add to that the evidence of what was said to the ambulance officers, who certainly did not cross‑examine him, one might think, and what was said to Dr Trevithick.  There is no suggestion in the cross‑examination or in the doctor’s evidence that he did cross‑examine him; he simply obtained a history from him.  One has to put it in the context that Dr Trevithick is not someone who is there with a view to determining whether or not the plaintiff is able to make out the tort of negligence against anyone.  He is simply a doctor trying to treat somebody with a fractured C5.  Bear in mind that at the time the plaintiff was spoken to by Dr Trevithick, his Glasgow Coma Scale, apart from the fact that his motor skills were completely eroded, was essentially normal – get a GCS of 10 against a maximum of 14 and he lost at least three of those points for no motor responses.

GLEESON CJ:   Naturally we are concentrating on the position between the respondent and your client, but so far as the other defendants are concerned, did this order 3 have any different significance as compared with the significance it had for your client?

MR GLISSAN:   I do not know that it was run at trial to the point where that was extensively canvassed, but it is certainly capable of having an impact.  If, for example, my client had made a condition of erection of the jetty that there be no handrail, which was one of the allegations, and as a consequence the plaintiff was not jostled or pushed but dived into the water, which he would have been unable to do had there been a handrail, then it could impact on any litigation between my client and the Club.

GLEESON CJ:   Were they all supposed to be responsible for there being no handrail in one way or another?

MR GLISSAN:   In one way or another.  We were the authority that occupied the land and gave permission for the erection of the jetty.  The Club I think were the people who did not maintain the jetty.  The Council had regulations which dealt with the structure.  So everyone was to a greater or lesser degree in some way challenged as being involved in the fact that there was a toe rail that was said to be unsafe because too high and no handrail.

HAYNE J:   Could I just go back a stage and understand the competition in evidence.  The plaintiff’s evidence‑in‑chief is at page 93, is it not, lines 35 and following?

MR GLISSAN:   Yes.

HAYNE J:   There is then the various descriptions given by those who attended the function, but for present purposes part of the comparison that has to be made is with Dr Trevithick at page 326, lines 40 and following, is that right?

MR GLISSAN:   Yes.

HAYNE J:   In particular, Dr Trevithick recalling a conversation with the plaintiff in which it is said that the plaintiff said he had dived into the water because he thought his friend was at risk of drowning.

MR GLISSAN:   Yes, and the note ‑ ‑ ‑

HAYNE J:   Then there are notes and various other aspects of evidence which would need to be taken into account, is that right?

MR GLISSAN:   Yes, that is right, but the note is important in that context because the note is slightly more specific in that he says he thought his friend was pretending to drown.  That would add, one might think, to the likelihood of him pretending to dive in to rescue ‑ ‑ ‑

HAYNE J:   But a question for the trial judge was whether to accept the evidence which the plaintiff had given of the manner in which the plaintiff had entered the water.

MR GLISSAN:   Yes, if there is to be a new trial it ought to be an issue which is open to the new trial judge to consider because even if it were not determinative of causation, it is still a relevant matter to be taken into account in relation to all the other aspects of negligence, falling very different to diving in relation ‑ ‑ ‑

HAYNE J:   Does it follow that the Court of Appeal has concluded that the evidence of Dr Trevithick at 326, though it may have been honestly given, is not to be accepted as recording what was said, or is it to be understood that the Court of Appeal has proceeded on some other basis to dispose of what he said at 326?

MR GLISSAN:   No, the former.  In the judgment Justice Foster says very much that when he dealt with Dr Trevithick’s evidence, which he did, and your Honour will find it between 661 and 665 or thereabouts. 

HAYNE J:   And what is said at 665, paragraph 89, in its first two lines, is a necessary step in the reasoning that is there recorded?

MR GLISSAN:   Yes.

HAYNE J:   Namely, that the evidence:

must in large measure be dependent upon the reliability of the note -

Is that a view which depends upon first rejecting from consideration the possibility that Dr Trevithick may be accurately recalling the conversation to which he deposed independent of whatever may have been recorded in the note?

MR GLISSAN:   Yes, because that follows from what is said by his Honour immediately before in paragraph 88 where he says:

In any evaluation of Dr Trevithick’s evidence, however, it would fly in the face of common sense to assume that he had not had recourse to his written notes -

and what he had said earlier in paragraph 87:

It is not surprising that he observed that “I don’t think I can use his exact words after this length of time.”

It is not a very sound basis for rejecting the evidence of a witness as to the course of events or what was said, particularly in light of the fact that Dr Trevithick’s note is made within an hour of the conversation with the plaintiff on the evidence that he gives in-chief.

HEYDON J:   Yes.  Mr Justice Foster said it was an hour and a half, but it does not really affect your point, I suppose.

MR GLISSAN:   Well, the reality is that you compare and contrast that with the plaintiff’s witnesses, all of whom made statements, if they made statements at all, a year or thereabouts after the event.

HEYDON J:   There is another strand to the reasoning, though.  He does say in paragraph 101, even if the record and the recollection of the doctor were reliable ‑ ‑ ‑

MR GLISSAN:   Yes.

HEYDON J:    ‑ ‑ ‑ it does not follow that what the plaintiff said was reliable, in view of his medical condition.

MR GLISSAN:   Yes, that is certainly right, but that was explored, the material in relation to that was there for Newman to consider that ‑ ‑ ‑

HEYDON J:   Page 672.

MR GLISSAN:   Yes, page 672 at paragraph 101 of the judgment, your Honour.

GLEESON CJ:   What page is the note?

MR GLISSAN:   What page is the note?  Page 400.

GLEESON CJ:   Thank you.

MR GLISSAN:   And if your Honour would look at Dr Trevithick’s evidence in‑chief at the bottom of 326, in that context, your Honour will see his evidence was not identical, but broadly similar: 

When one of his friends was pushed into the water –

he says at line 56 –

he dived into the water because he was – he thought his friend was at risk of drowning and he dived in –

and that can be read with the note.  Now, he was extensively challenged as to the accuracy of his recollection and he was able to recollect not only the plaintiff but a number of other incidents that occurred on the same night with remarkable clarity.  There was nothing in Dr Trevithick’s evidence which would in any way have made it surprising that the trial judge regarded him as an accurate as well as truthful witness as to what he had been told.

CALLINAN J:   Mr Glissan, can you assist me by reference to page 352 ‑ ‑ ‑

MR GLISSAN:   Certainly, your Honour.

CALLINAN J:    ‑ ‑ ‑ one of the photographs.

MR GLISSAN:   Eight.

CALLINAN J:   Or perhaps one of the others, if it shows it more clearly, where the respondent was when he entered the water, the point from which he entered the water.

MR GLISSAN:   I do not know whether 352 ‑ ‑ ‑

CALLINAN J:   It may not be the right one, I do not know.

MR GLISSAN:   No, there are a number that I have marked your Honour.  A little further on at 364 and 366, there are two photographs which show with a mark “x” the point from which the plaintiff left the jetty. 

HEYDON J:   It was low tide, that photo, was it?

MR GLISSAN:   Yes, it is low tide in those photographs.

CALLINAN J:   I cannot see it in 366 – oh yes, I can.

MR GLISSAN:   Yes, there is a blue “x”, your Honour, on the body of the jetty.

CALLINAN J:   So it is really at about the point where the boardwalk becomes the jetty, is it?  Or is ‑ ‑ ‑

MR GLISSAN:   No, it is not that the boardwalk becomes a jetty at that point, I think, your Honour.  That is perhaps a little too emotive for my taste, but ‑ ‑ ‑

CALLINAN J:   That seems to be rather like a veranda out from the club, is it?

MR GLISSAN:   Beyond that point there is a gate, because there there are deep water moorings for boats and there is a security gate to prevent unauthorised people proceeding further.

CALLINAN J:   I can see those gates.  Where was Mr Wilmott dumped then?

MR GLISSAN:   There is a photograph which shows that, but it was further towards the land, significantly further towards the land.  372 is one such photograph, and 381, your Honour, I think.

CALLINAN J:   Is that where - the “DMN”, is it - 381?

MR GLISSAN:   That is “DAN”.  That is the plaintiff.  That is where he ended up.  The point A is where he left the jetty.

CALLINAN J:   Right.

MR GLISSAN:   It is shown on that, and that was where he was rescued, as it were.  I think C in that photograph ‑ ‑ ‑

CALLINAN J:   Is where Mr Wilmott ‑ ‑ ‑

MR GLISSAN:   Is where Mr Wilmott was, yes.  So he was very much further shoreward, and it was for that reason that I made the submission that I made early this morning that the plaintiff was significantly further down the jetty when he went in, and that would be consistent with him assuming that the water was deeper, and certainly not inconsistent with his Honour’s conclusion that he dived, because there was evidence about Wilmott only being up to his knees, or something of that order.

CALLINAN J:   Yes, and how deep was the water where Mr ‑ ‑ ‑

MR GLISSAN:   One and a half metres I understand, your Honour.  Certainly not deep enough – I am told that the water was eight inches deep.  The distance of one and a half metres is the distance from the jetty ‑ ‑ ‑

CALLINAN J:   Between the jetty ‑ ‑ ‑

MR GLISSAN:    ‑ ‑ ‑ to the surface of the water.

CALLINAN J:   So where he entered the water it was only eight inches?

MR GLISSAN:   Yes, but of course there is no evidence of any kind in the case about any state of knowledge of the depth of the water at the time.  The tide was ‑ ‑ ‑

McHUGH J:   There was a statement somewhere that there was lighting there but the depth could not be seen.

MR GLISSAN:   That is exactly right.  It was night.  There was lighting.  There was reflection from the surface of the water.  One would not see any more than that there was water.

CALLINAN J:   But here to the water it was only eight inches deep, is that ‑ ‑ ‑

MR GLISSAN:   I am relying on Mr Wheelahan for that, your Honour, but I am told that that is the evidence that was at trial.

GLEESON CJ:   Mr Wilmott must have very short legs then, if he was up to his knees.

MR GLISSAN:   You would think so, your Honour.  He was up to his knees, yes.

GLEESON CJ:   And he was closer to the land than the plaintiff.

MR GLISSAN:   I do not know, your Honour.  I cannot ‑ ‑ ‑

CALLINAN J:   So that means to reach the floor of the water he would have fallen about 50 inches.  That is all.

MR GLISSAN:   I suppose that is right.  That is one and a half metres, your Honour, yes.

CALLINAN J:   A little more ‑ ‑ ‑

MR GLISSAN:   Yes, 300 is a foot.

CALLINAN J:   A little more than that.

MR GLISSAN:   Five feet, essentially 60 inches.

CALLINAN J:   About 60 inches.

McHUGH J:   Five feet, yes.

CALLINAN J:   And one would have expected the water to have broken the fall to some extent.  It seems a catastrophic injury for such ‑ ‑ ‑

MR GLISSAN:   If it was that shallow, your Honour, no, really.  I mean it would not have any retarding effect at all, I would not think.  The density of water in order to slow an object needs to have a sufficient depth for the object to pass through it, as a matter of basic physics.  It just could not happen.

CALLINAN J:   Had the regatta been conducted at all on the day of the fall?

MR GLISSAN:   No, the regatta was conducted elsewhere.

CALLINAN J:   The next day.

MR GLISSAN:   The party was at this club.

CALLINAN J:   Right.

MR GLISSAN:   My understanding is the regatta had been conducted at Rose Bay.

CALLINAN J:   They had not had any ‑ ‑ ‑

MR GLISSAN:   The other side of the harbour, so that there was not any local knowledge that they had as a result of having sailed there.

McHUGH J:   It had been the Woollahra Sailing Club, had it not?  That is where it had been.

MR GLISSAN:   That is at Rose Bay.

McHUGH J:   Yes.

MR GLISSAN:   So they had gone across to the Middle Harbour Yacht Club, not having sailed there.  Of course the plaintiff was from Queensland, so there was no reason for the trial judge to conclude in any way that the plaintiff would have had any knowledge of the depth of the water or the rate at which it shelved at Middle Harbour which would have dissuaded him from diving, which was another difficulty that the plaintiff faced in the case.

CALLINAN J:   What time of night was it that this happened?

MR GLISSAN:   Ten o’clock almost exactly, I think, your Honour, and the ambulance report indicates when the ambulance arrived and collected him.  To the extent that you can read it, in the transcript, it was 22.10.  So nearly 11 o’clock at night when they were called.  It was a public call.  So late, after what was described as a yachtsman’s ball.  Whether or not the plaintiff had been drinking much, there was certainly plenty of evidence that there was alcohol being served and consumed in the area.

CALLINAN J:   The trial judge made no finding about the respondent being affected by alcohol and the Court of Appeal found affirmatively that he was not, or found that he was not.   Is that not correct?

MR GLISSAN:   The evidence about it was, at best, equivocal.  The plaintiff was asked, from the ambulance report, whether or not he had told the ambulance drivers that he had been drinking rum and coke and beer and his answer was, “I don’t drink beer”.  It was not an issue that was very much explored with the plaintiff in cross‑examination; for what reason I do not know.

CALLINAN J:   The Yacht Club did not plead contributory negligence, is that right?  I think the other defendants did.  Is that correct?

MR GLISSAN:   Mr Walker would probably be better able to assist your Honour in relation to the Yacht Club’s position, but I thought that they had a pleading of contributory negligence, I thought all the defendants pleaded it. 

CALLINAN J:   They may have done, I may be wrong about that.  Thank you.

HEYDON J:   It is page 32.

MR GLISSAN:   Your Honours, the issues we have set out in our submissions are that this was not a case which fell within any operation which would have permitted or justified the court interfering with the verdict at all.  I understand what Justice Heydon says to me about the difficulty with pleading in relation to that, but, in any event, there was no warrant for the enlivenment of the discretion under section 75A.  If there was to be a new trial, it should have been, and should be, on all issues. 

MR JACKSON:   Yes.  Your Honour, the result would be that there would not be a need for a full second trial.

GLEESON CJ:   Yes, but it is hardly the defendant’s fault – they could not have failed to take the point.

MR JACKSON:   No.  But, your Honour, one is looking to see what should happen in relation to the costs of the first trial.  The result of what has taken place is that the consequence of adoption of submissions made by the defendants at the trial has been that the judge has then adopted a particular course.  The result of the adoption of that course has been, it is assumed, incorrect.  The consequence is that there has to be a new trial.

GLEESON CJ:   Let us suppose that at the new trial the defendants persuade the judge that the proposition that there should have been a handrail on a jetty like this was wrong, so that the plaintiff fails on liability.

MR JACKSON:   Yes.  Well, we end up paying the costs, but the costs we should end up paying, your Honours, would be the costs of one not two trials.

McHUGH J:   Yes, but if your point was right it would mean that every party who succeeded on a point which was reversed on appeal and which required a new trial ought to pay the costs of the first trial.

MR JACKSON:   Well, it would not, your Honour.

McHUGH J:   Why not?

MR JACKSON:   Because one is talking about a discretion, so one looks at the particular case.  Now, in many cases the need for a new trial is brought about by the conduct of one party or another.  It does not automatically follow they have to pay.

McHUGH J:   Take a jury trial, somebody objects to evidence which is later held to be wrongly admitted or wrongly rejected.  I have never heard of an order that they pay the costs of the first trial.

MR JACKSON:   Well, your Honour, it just depends on the circumstances.  It does not have to follow the event and one should not treat the discretion as being limited.  If you have a particular case where the whole of the trial has to be heard again, has to be gone through again, because of the adoption of a particular course in relation to a fundamental aspect of it ‑ ‑ ‑

GLEESON CJ:   That seems to have a punitive flavour.  The fundamental principle is, is it not, that an order of costs is not punitive?

MR JACKSON:   Your Honour, I accept that.

GLEESON CJ:   It is indemnifying.

MR JACKSON:   It is indemnifying, but it is indemnifying for what?  One looks to see ‑ ‑ ‑

GLEESON CJ:   For being wrongly sued in a case where there is an order for costs in favour of the defendant.

MR JACKSON:   Your Honour, that is partly it.  It is for the costs occasioned for, as your Honour puts it, being wrongly sued, but at the same

time the terms of provisions like Part 52A rule 11 are such as to allow there to be orders made in circumstances where a party is not ultimately successful in the proceedings.  If what you have is a case where you need to have two rather than one trial brought about by the conduct of the defendant, then it is appropriate to look to see whether they should pay the costs of the first trial whatever might happen with the costs of the second.  Your Honours, those are our submissions.

GLEESON CJ:   Thank you, Mr Jackson.

MR JACKSON:   I am sorry.  There is one matter I said I would check in relation to Justice Heydon, and may we give your Honours a note in relation to that in ‑ ‑ ‑

GLEESON CJ:   Yes, certainly.  Yes, Mr Glissan.

MR GLISSAN:   Your Honour, we do not have anything in reply, beyond reminding the Court that we filed some factual submissions.

GLEESON CJ:   Thank you.  Mr Walker.

MR WALKER:   Your Honours, several times my learned friend referred to the fact that the doctor’s note had been made after speaking to the four friends at the hospital.  The reference is in volume 1, page 338.  The answer is at line 35.  It is an answer to a question which was testing the witness concerning the inherently unreliable nature – so the cross‑examiner was suggesting – of an account given by the patient, the patient having been in and out of consciousness. 

The line of cross‑examination starts on the previous page.  The doctor was insisting, “No, the patient was completely lucid”.  The first thing to note is that that is a line of cross‑examination which, at least for the purposes of its test, is proceeding on the basis, the premise, for the time being, that what the patient said was accurately remembered by the doctor, but that what the patient said was itself unreliable, a matter not dealt with either in the Court of Appeal or in the trial judgment, a matter which in fact goes to the very heart of one of the arguments in common between the parties, namely, that this was an admission and as an admission it had to be weighed as a piece of evidence in the context of all the evidence, which is why we say there should not be a truncated retrial.  It should be available to be weighed in the context of all the evidence.

My learned friend, in his repeated references to the sequence of events, is drawing on that answer, which one sees is then immediately followed up by the cross‑examiner and counsel for the first defendant

objects, apparently correctly, to the question, in effect, “You got it not only from the plaintiff but you got corroboration from the friends”.  We do not know, because the cross‑examiner does not return at all to this topic, and it hardly lies well in my mouth for a defendant to blame the plaintiff’s counsel for the success of a defendant’s objection.  But it is worth noting that even that question embraces that the plaintiff was a source of the information and that the others were matters of corroboration.  There was no attempt anywhere to suggest that the doctor was in fact recording what others had said and not what the plaintiff had said.  His evidence – your Honours have seen the references before – is very clearly to the effect that the source of the deliberate diving notion was the plaintiff.

Now, to clinch that matter, in our submission, is the following circumstance, three of those four were called.  Roberts‑Thomson; Moon not called, but present by his written evidence; Mr Wilmott, and those who could be asked questions were asked questions.  Roberts‑Thomson, one sees the presence of the hospital at 240, line 30, speaking to the doctor at 241, line 25 and line 51; for Moon, 310 line 30 of the hospital speaking to the doctor, 311 line 5, 317 lines 45 to 318 line 22.  For Wilmott at the hospital, one has him at 317, line 37.

Now, the fact is they all rejected the possibility that they were the source of the kind of version which is recorded in the doctor’s notes, so that the matter could have been and was not pursued by way of saying this is distraught friends rather than lucid patient and, in any event, the available distraught friends said we were not the source of that.  For those reasons, in our submission, there was at the trial, there was during the argument in the Court of Appeal and there remains a lively, unresolved dispute of credibility, including the reliability matters in all the aspects of that notion of reliability that should have been left to be determined by a proper trial.  May it please your Honours.

GLEESON CJ:   Yes, Mr McCulloch.

MR McCULLOCH:   Your Honours, there is only one matter.  It relates to the question of costs and the submissions that my learned friend, Mr Jackson, made and the question asked of Justice Heydon about the trial judge’s recording of the proceedings on page 550 of the appeal book, and that is that my client did not urge upon his Honour that he determine separately and before any other issue, the factual question.

Indeed, and these are not in the application books because we did not wish to burden the Court with unnecessary material, the written submissions which were filed on behalf of my client directed themselves solely to the questions which appeared, if I could describe them compendiously in this way, in relation to the notice of contention point, or

the other issues of duty and breach which are recorded by the trial judge at paragraph 7 of his judgment at page 550.

I was not at the trial so I say that not to do other than indicate.  I cannot give any personal recollection of it, but my instructions are that the course that the trial judge adopted was not through any agreement between the parties or any motion or any sort that he determine that issue separately and before any other question.  That is the only other additional matter I wish to add.

GLEESON CJ:   We will reserve our decision in this matter and we will adjourn until 10 o’clock tomorrow morning.

AT 3.59 PM THE MATTER WAS ADJOURNED