Transport Accident & Anor v Rietmeyer

[1998] HCATrans 459

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M20 of 1998

B e t w e e n -

JAMES ORR and TRANSPORT ACCIDENT COMMISSION

Applicants

and

ALEXANDRA RIETMEYER

Respondent

Office of the Registry
  Melbourne       No M21 of 1998

B e t w e e n -

ALAN GEORGE BROWN and TRANSPORT ACCIDENT COMMISSION

Applicants

and

MARK EDWIN MEDEW

Respondent

Office of the Registry
  Melbourne  No M22 of 1998

B e t w e e n -

TRANSPORT ACCIDENT COMMISSION and BERNARD WILLIAM ELLIOTT

Applicants

and

LORRAINE MAVIS SULLIVAN

Respondent

Office of the Registry
  Melbourne  No M23 of 1998

B e t w e e n -

MATHEW BARRY and TRANSPORT ACCIDENT COMMISSION

Applicants

and

NICOLE SMITH

Respondent

Application for special leave to appeals

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 DECEMBER 1998, AT 12.04 PM

Copyright in the High Court of Australia

__________________

MR A.G. UREN, QC:   If the Court pleases, I appear with my learned friend, MR D. MASEL, for the applicants in all of these cases.  (instructed by TAC Law Pty Ltd)

MR D.E. CURTAIN, QC:   May it please the Court, I appear with my learned friend, MS K. BOURKE, for Rietmeyer, the respondent in the first matter.  (instructed by Vincent J. Ryan)

MR J.B. BINGEMAN, QC:   If the Court pleases, I appear with my learned friend, MR P.A. JEWELL, for the respondent, Medew, in the second matter.  (instructed by Simon Parsons & Co)

MR P.J. RIORDAN:   If the Court pleases, I appear with my learned friend, MR D.J. WILLIAMS, in the third matter in which Sullivan is the respondent.  (instructed by Riordan & Partners)

MR B.D. BONGIORNO, QC:   If the Court pleases, I appear with my learned friend, MS K. BOURKE.  (instructed by Holding Redlich)

GLEESON CJ:   Yes, Mr Uren.

MR UREN:   If the Court pleases.  The point which is submitted to be the special leave point in these cases is, perhaps, conveniently set out in the application book in the Rietmeyer application in the summary of argument at page 57.  The question as the Court can see goes to the task of the Court of Appeal on the hearing of an appeal by way of rehearing from the County Court.

GLEESON CJ:   Can you just show us where in the reasoning of the Court of Appeal we find them approaching the application on that basis?

MR UREN:   Yes, there are a number of places, not only in the reasoning but in Mr Justice Winneke’s decision which starts at page 41 in that book he said, at page 43, a little bit below line 25, in the paragraph at the bottom of the page:

Secondly, and this, I think, to some extent impacts on the first principle, it must now be recognized that the task of the appellate court, if leave is granted, would be to determine whether specific error was demonstrated in the reasoning of the trial judge or, in its absence, whether his decision granting leave to proceed was patently erroneous.  (See Mobilio v Balliotis – - -

GLEESON CJ:   My problem is this:  he puts that as an additional obstacle, as it were, that you faced but then when you look at the next page, on page 44, at line 15, he says:

Having said that, I am not persuaded that the decision of the learned judge…..is attended by sufficient doubt to warrant the grant of leave to appeal.

That, as I understand it, was the basis of decision in all of these cases.

MR UREN:   Yes, but it was the basis of a decision on the basis of the task which the court said the Court of Appeal would have if the matter, in fact, got to the appellate stage.

GLEESON CJ:   That is the difficulty, at the moment, that I am having.  One way of expressing it is to say that there is a difficulty about whether these would be appropriate vehicles for a consideration of the issue you want to raise bearing in mind that they all could have been decided and, so far as I can see, were decided, on a basis that must be entirely uncontroversial.

MR UREN:   Well, if they were decided on a basis that was uncontroversial, then, of course, we have no point to make but that, in our respectful submission, is not so.  In each case what happened is the appellant had to seek leave to appeal and this required the showing of, we would say, a sufficiently arguable case for present purposes.            This, in turn, required a view to be taken of the task which the court would have on hearing the appeal itself if leave were granted.

In other words, the easier the task of success, as it were, at the appellate stage then the easier it would be to show an arguable case and the harder that test the more difficult or, alternatively, if the question which the court had to ask itself on the application for leave as to whether there was a sufficiently arguable case or not depended upon what the applicant would, in fact, have to persuade the Court of Appeal of on the hearing of the appeal and thus, what the Court of Appeal did in the cases which report to this Court is basically to set, in our respectful submission, the benchmark at the appellate stage too high and also, inappropriately as well in that the court said that the task of the appellant, if leave was granted, would be to persuade the Court of Appeal, not that the appeal ought to be allowed on the basis of, let us say, a Warren v Coombes principle, but on a basis which had been held to be the case in Mobilio v Balliotis, in our submission, wrongly and, indeed, for the first time in the appellate jurisdictions in this country in which appeals are by way of rehearing.

GLEESON CJ:   In all of these cases, was the question that the judge at first instance had to consider whether there was a serious injury?

MR UREN:   Yes, he had to consider whether it was a serious injury.  Now that meant he had to apply, and I will go back a square – “serious injury” is given a special definition in the Act.

GUMMOW J:   Why is the construction of the Victorian Transport Accident Act 1986?

MR UREN:   It is not the construction of the Act.  The Act has been authoritatively construed in Humphries v Poljak.

GUMMOW J:   Yes.

MR UREN:   The point that we make is nothing to do with the question of the construction of the Transport Accident Act. It is what is the appellate court’s task on hearing an appeal on a matter which ‑ ‑ ‑

GUMMOW J:   It is an application for leave, is it not?

MR UREN:   Yes, it is an application for leave but the ‑ ‑ ‑

GUMMOW J:   It makes it even less for the general public importance.

MR UREN:   Your Honour, cases of this sort can only arise on applications for leave to appeal because of the way that the process is constructed.

GUMMOW J:   Yes.

GLEESON CJ:   But the Mobilio decision which you want to get at ‑ ‑ ‑

MR UREN:   Yes, and we cannot get out because we won it.

GLEESON CJ:   Was that given in the context of one of these serious injury cases?

MR UREN:   It was, yes, and it has been repeated as well in another serious injury case under another statute, the Accident Compensation Act, that is Glover’s Case, which we refer your Honour to momentarily, but the question of whether an injury is a serious injury or not is, as the Court can see, one of the thresholds to being able to be given leave to sue at common law.

GLEESON CJ:   But in every case the primary judge has before him or her a description of the injuries which is, presumably, accepted as being correct.

MR UREN:   Except in one case, I think, yes.

GLEESON CJ:   And then the Court of Appeal in considering leave has before it the same description of the injuries.

MR UREN:   Yes.  Now instead of saying to themselves, as we submit they should, on Warren v Coombes principles, “Is there a sufficiently arguable case for the Court of Appeal, looking at the matter itself, to consider whether or not this injury is or is not serious?”, they did not say that at all.  They said, “Has the trial judge been shown to be in error in the sense that he has made some specific error which can be pointed to or his decision is so hopeless that it must be regarded as being erroneous?”

In other words, they have ignored what, we submit, is the ordinary and long-standing test, in the case of appeals by way of rehearing, in non‑discretionary cases and, in fact, applied, in effect, the principle which is applicable in discretionary cases.

GLEESON CJ:   Well, that division between discretionary decisions and non‑discretionary decisions can become a bit blurred, can it not, when you get to the level of making a judgment as to whether an injury is serious?

MR UREN:   With respect, no.  Courts make decisions of that sort every day in a large number of matters.  The courts have and appellate courts have dealt with questions of undue influence, unconscionable behaviour, misleading conduct, negligence, contributory negligence, causation, whether a contract is unjust, valuations, natural justice, reasonableness of behaviour, unjust enrichment, public policy, ostensible bias, a tendency to interfere with the administration of justice, scope of employment and whether it is unjust or oppressive to return a fugitive, all on Warren v Coombes principles.

These are matters which all attend the courts and the courts of appeal every day and there is no sign, in our respectful submission, in those categories or cases of the courts saying, “We will only set aside the decision below if, in fact, you can point to a specific error of law or fact or, alternatively, to a decision which was so hopeless it must be wrong”.  In other words, what the court has done is firstly, it has applied to this category of case which is not a discretionary category, the principles relating to discretionary cases, and it has, indeed, really equated the error which must be shown to what is often described as error of law and in our respectful submission, without any actual warrant for doing so whatsoever.

To go back to the point that your Honour the Chief Justice made mention of with respect to page 44, the President of the Court of Appeal at the passage your Honour referred to firstly had not seen the applicant himself.  She was, in fact, in court and her injuries could have been viewed.  He said that the:

disfigurement…..was a matter peculiarly for the trial judge, and I can see nothing in his reasons which suggests to me that he was not entitled to come to the decision which he did.

His Honour has not independently come to a view that, even allowing for the Mobilio point, the decision, in any event, would have been one way.  He has, in fact, said that the:

matter peculiarly for the trial judge –

and that is where the application for leave stops.

Now, as to the question of whether there is some grey area, as it were, between discretionary and non‑discretionary in this area, in our respectful submission, firstly there is not because there are a number of degree and value judgment matters which the courts deal with on a non‑discretionary basis.  Once a particular conclusion is come to a particular result flows as a matter of law.  Once you work out what the statutory standard is, you apply it to the facts of the case and you achieve a particular result.  The particular result is dictated by the statute.  That is not a discretionary matter and it is not within any grey area either.

GLEESON CJ:   Could you take from one of these four cases what you regard as the best example of what you would say is not a serious injury being called a serious injury?

MR UREN:   It is difficult to do that without looking at the facts of each of the cases because they each have their own little features.  Now, if you could take Mr Medew, perhaps we could look at his case as one.  The Court will have to look, perhaps, at the application book at page 36 where what “serious injury” was said to mean is set out in a citation from Humphries v Poljak at about lines 15 to 20.  The injury has to be:

judged by comparison with other cases in the range of possible impairments or losses –

and in that range –

be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or marked’ –

so, there is a comparative task to be done but one has to look at the range of cases, the cases in the range of possible impairment or losses and then categorise this particular case as being very considerable and certainly more than significant or marked. 

Now, in the case of Mr Medew, there is no doubt that he had a bad back and the judge made certain observations with respect to him which we submitted that there was just no evidence to justify the observations which he made, but looking at our summary of our case as to what his situation was, on page 61 of the book in paragraph 8, the submission was made that:

an examination of the objective facts shows that, although the respondent had suffered an impairment, nonetheless it was not serious by comparison with other cases in the range of possible impairments.

Now, he had suffered his injuries when he was 15 in 1988.  He had:

completed a diesel mechanic’s apprenticeship –

and this is a man who the judge found could no longer carry on a diesel mechanic’s work but he had completed his diesel mechanic’s apprenticeship nine years later, he worked in the diesel mechanic’s:

field until mid 1989, when he was retrenched.  He had been offered the same work in a different place –

He did not say he could not do the work he was doing, he refused to go to the different place, he did not want to travel:

it was clear that he could do that work…..He was looking for less strenuous work when he was retrenched, but he never said that he could not do the work which he was doing or would have stopped doing it, and in fact he said he would have remained in that job until he was promoted if he had not been retrenched.

Then, he attempted various sports, he had:

a driver’s licence and drives for much more than minimal distances, at times for job purposes.  He has ambitions to be a supervisor in the mechanical field and was going to night school and doing an engineering course to get further qualifications.

Then we say, I think it should not be submitted:

that a supervisor’s job would be lighter and better paid.

His Honour assumed that he would not get more pay.

He was still working 40-55 hours per week (as he always did).  He was restoring cars as hobby.  He only sees a chiropractor somewhat infrequently.  He agreed that his condition had improved…..He had not had time off work because of his injuries –

and things of that sort.  Now, accepting that he does have a bad back, nonetheless, in the range of cases of possible impairments, in our submission, that is not a case in which he ought to have been regarded as having a serious injury such that he would be regarded as an exception to the scheme of compensation provided for by the statute and be allowed to take the route seeking common law damages.  In other words, the ability to seek common law damages should be regarded as an exception to the statutory no fault scheme and it is important for its administration that, in fact, without sounding too harsh about it, but that the route to common law damages is not unduly light.

The statute has chosen the words “serious injury” and the court has given those words the interpretations as it has.  Mr Medew is carrying on life quite successfully.  His back did not prevent him doing so and there is no reason to think that his back ever would and he was going up in the world, as it were, and he was still doing lots of work and things like that.  So, in our respectful submission, putting him in the range of possible impairments ending up with quadriplegics and saying that he is conditioned in that range, is within the description which the case says the statute means, is, in our submission, wrong.

Now, that is a view which was quite legitimately able to be put to a Court of Appeal if the test is – sorry, I go back a square, if the Court of Appeal’s job is to redo what the court did down below, in other words, to actually rehear the case.  If a court’s job is to actually rehear the case, then in Mr Medew’s case, there was a substantial case to put that he did not, in fact, have a serious injury as defined.  Now, of course, a Court of Appeal might disagree with this but, on the other hand, there is a substantial case to put that they would agree.

Now, if I could take the Court in this regard to Warren v Coombes 142 CLR 531 at 537 and 553, the majority said at page 537 in the middle of the page, after referring to Paterson v Paterson:

there are still differences of opinion upon the present question, which arises every day, and is fundamental to the performance of the duties of courts of appeal.

In other words, the question of the correct approach of the Court of Appeal in hearing appeals by way of rehearing was said by the majority to be fundamental and, in that case, the Court disagreed with the views which Chief Justice Barwick had expressed in other cases and applied what they said was the traditional view which goes back an extremely long way.

At page 553 the majority again said, at the top of the page:

However, if the law confers a right of appeal, the appeal should be a reality, not an illusion; if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it.

In the present case, the Court of Appeal was, and this Court is, obliged to reach its own conclusion –

In Jackamarra v Krakouer 72 ALJR 819 at 835 Justice Kirby at paragraph 8 at the top of the page, it is actually item 8 of paragraph (66), his Honour said:

it is necessary to bear in mind the principles – - -

GUMMOW J:   It has got one of these new Australian Law Journal style lazy headnotes which do not indicate who comprised the majority and who comprised the minority.  I think you are on the right side.

MR UREN:   Well (a) on the right side but (b) I think his Honour was the only one who said anything about this point but, perhaps if I went to paragraph (69).  At the bottom of paragraph (69) his Honour observed that

the nature of the appeal which the applicant had in that case was, in fact, something which was a substantive right, in other words, that the question of the task of the appellate court was not just a matter of procedure.  It was, in fact, something which concerned the substantive rights of the parties and his Honour, at the bottom of the same page, in paragraph (71) referred to:

The scrutiny of transcript in cases of this kind is often a tedious and sometimes a rather unrewarding judicial task.  But it is the common task of appellate review.  It was the task invoked by the appeal in this case.

Now, that may, of course, put judges off becoming judges of appeal but, nonetheless, if it is their job it is their job, and his Honour said on the same page in the top of the left-hand column in item 8:

it is necessary to bear in mind the principles of appellate review applicable to the case.  Where, as in this case, the appellate court has, by statute, a right and duty to reconsider the decisions of fact and law made at the trial, the breadth of the court’s functions has been stated many times.

Then his Honour makes observations about what happens about credibility but then says:

Nevertheless, even in such cases, findings of credibility can sometimes be overcome.  Conflicts of medical and other expert testimony are not, in my view, ordinarily susceptible to resolution by simple credibility assessment.  A party, having an appeal as of right which it has exercised by filing a notice of appeal within time, is normally entitled to have the appeal heard and determined on its merits by the painstaking examination of evidence and argument.

GLEESON CJ:   Thank you, Mr Uren.

MR UREN:   All of those observations, if the Court pleases, are ones which were not applied in the present case and, in our submission, the wrong test had been applied by the court.

GLEESON CJ:   We do not need to hear the respondents. 

In the Court’s view, the decisions in question do not appear to us to raise an issue appropriate for a grant of special leave to appeal to this Court, and the applications are refused.

Do you resist an order as to costs, Mr Uren?

MR UREN:   No, your Honour.

GLEESON CJ:   The applicant must pay the costs of the respondent in each case. 

We will adjourn to reconstitute.

AT 12.27 PM THE MATTER WAS CONCLUDED