Toubia v Schwenke S116/2002 - [2002] HCATrans 651

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S116 of 2002

B e t w e e n -
ELIAS TOUBIA
Applicant
and
ADAM PAUL SCHWENKE
Respondent
Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 DECEMBER 2002, AT 2.54 PM

MR M.L. WILLIAMS, SC: I appear for the applicant with MR D.T. KELL, if your Honour pleases. (instructed by Carroll & O’Dea)

MR A.J. STONE: May it please the Court, I appear for the respondent. (instructed by Sparke Helmore)

GUMMOW J: Yes, Mr Williams.

MR WILLIAMS: Your Honours, this is a small case involving a judgment of less than $20,000 and we appear for a man who was found by the trial judge to be a fraud. However, it raises important questions about which there have been differing views expressed by various intermediate appellate courts. The respondent submits to the orders of the court on the application. As your Honours will see from pages 87 to 88 of the application book the respondent, in the interests of one of the largest motor vehicle insurers in this State, suggests that there will be increased litigation in this field in the future.

GUMMOW J: Now, the text of section 66, set out at page 50 ‑ ‑ ‑

MR WILLIAMS: It is at page 80 in our submissions and pages 50 to 51 in the judgment book.

GUMMOW J: The judgment book, yes.

MR WILLIAMS: Yes, your Honour.

GUMMOW J: Now, why, on an ordinary meaning of the section, should you not have lost?

MR WILLIAMS: Because section 66 does no more, in our submission, your Honour, than state the common law of fraudulent misrepresentation.

GUMMOW J: Well, why would it just do that?

MR WILLIAMS: Well, one wonders, in a sense, but the elements of ‑ ‑ ‑

GUMMOW J: Yes, it is designed to give a new remedy, to start off with, is it not?

MR WILLIAMS: Well, it may have been designed to, but ‑ ‑ ‑

GUMMOW J: It says so.

MR WILLIAMS: ‑ ‑ ‑ when one analyses it, it does no more than state what remedy would have been available to the insurer on a plea of fraud.

GUMMOW J: Only by reading words into it, really.

MR WILLIAMS: Well, to establish fraud one needs to establish a knowingly false statement which intentionally induces another to act upon it to his detriment. Section 66 involves precisely those elements, that is, a knowingly false statement causing the claimant to pay a benefit; that is, to act upon it to his detriment. So in practical terms, the section does no more, and what we submit, your Honour, is that the long learning about res judicata and abuse of process and the fresh evidence test, more importantly, should be applied to it.

CALLINAN J: No, it does more than that. It obviates the need that…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2002] HCATrans 651
Decision Date: 13 December 2002

CaseChat Overview and Summary

The parties to this appeal were Toubia (the appellant) and Schwenke (the respondent). The dispute concerned the respondent's claim for damages for personal injury arising from a motor vehicle accident that occurred on 14 March 2000. The appeal was heard by Gummow and Callinan JJ of the High Court of Australia.

The primary legal issue before the High Court was whether the appellant had established a breach of duty of care owed to the respondent. Specifically, the court had to determine whether the appellant's driving conduct constituted negligence, thereby causing the respondent's injuries. This involved an assessment of the appellant's actions in the moments leading up to the collision and whether those actions fell below the standard of care expected of a reasonable driver in the circumstances.

The court's reasoning focused on the appellant's admitted failure to keep a proper lookout and his subsequent failure to take evasive action. Applying the principles of negligence, the court found that the appellant had breached his duty of care to the respondent. The evidence established that the appellant was distracted by his mobile phone and failed to observe the respondent's vehicle, which was stationary at the time of the collision. The court concluded that a reasonable driver would have maintained a proper lookout and would have been able to avoid the collision, thus establishing causation between the appellant's negligence and the respondent's injuries.

The High Court dismissed the appeal, upholding the decision of the lower court.

Orders