Tretjak v The Motor Vehicle Insurance Trust

[1989] HCATrans 255

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P15 of 1989

B e t w e e n -

MIRKO TRETJAK

Applicant

and

THE MOTOR VEHICLE INSURANCE

TRUST

Respondent

Application for special

leave to appeal

DEANE J
TOOHEY J

McHUGH J

Tretjak

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 25 OCTOBER 1989, AT 2.01 PM

Copyright in the High Court of Australia

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MR P.W. NICHOLS:  If it pleases Your Honours, with my learned

friend, MR M.T. TROWELL, I appear for the applicant.

(instructed by Marks Healy Sands)

MR H.J. WISBEY:  May it please the Court, I appear for the

respondent. ( instructed by Wisbey & Associates)

DEANE J:  Yes, Mr Wisbey. Mr Nichols.

MR NICHOLS:  This is an application for special leave to

appeal and also to enlarge time.	The material
facts can be stated in a very short order.	~he

applicant succeeded in the first instance before

Her Honour Judge Kennedy and was reversed on appeal.

The two substantial aspects of the case that

were considered on the appeal were the evidence

of the main supporting witness, Mrs Tretjak, the

former wife of the applicant, and that of

Mr van Emden, called for the respondent.	The real
question - - -

DEANE J:  Mr Nichols, you can assume we have read the judgments;

you can also proceed on the basis that subject to
anything that might be said as to time against you

you can go straight to the substance of the application.

MR NICHOLS:	I am obliged to Your Honour, and, in fact, the substance of the matter is the question of whether a
breach in the principle set out by this Court in
BRUNSKILL V SOVEREIGN MARINE & GENERAL INSURANCE CO
has been made. I have provided the Court with a
surmnary of argument, with a set of the decisions
referred to and a list of authorities, which I hope
you have, if Your Honours please. If not I have
additional copies available, if it please the Court.
This was a case in which the Full Court - - -
DEANE J:	If you would just give us a moment, we have not had a

chance of reading this.

MR NICHOLS:	I am sorry, Your Honour.
DEANE J: Yes, Mr Nichols.
MR NICHOLS:	If the Court pleases, the substance of the point that is put up by way of this application for special
leave is that the Full Court decided that the trial
judge misused her advantage of hearing the witnesses
and was palpably wrong. That principle which enables
an appeal court to intervene in the case of a finding of fact of a trial judge, was laid out in BRUNSKILL's case, No 1 on my list of authorities. In that case
the Court has set out very clearly the principle
that resides. The problem here is that the principle
has not been in any way elaborated upon or explained,

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and it would see at least desirable that the

circumstances in which the appellate court can

intervene to deal with a trial judge's decision

be spelt out in some more concise way.

Here the error in principle, the applicant

submits, is that the Appeal court should have
decided precisely what the trial judge found was wrong;

then decided why it was wrong and how it reached

the principle, and in a clear a definite way, and
then finally decided this was not a mere difference

judges, in effect, differed with the trial judge on a matter of credibility; primarily the evidence of

with the trial judge on a question of credibility.

Mrs Tretjak. There is no need here, I expect that

Your Honours would say, to go into that evidence in

any detail, but I can categorize the,errors found

by the court in, perhaps, two ways.

The first was they found that Mrs Tretjak's

evidence was not credible; the second was, they

found it was contradicted by the evidence of

Mr van Emden, and thirdly they found that Her Honour

had made mistakes, in their view, as to findings of

fact. The point that I would submit here is that

none of these matters go to the central question that

Her Honour had to decided, and that is, "Was there

an unknown vehicle? Was there an unidentified vehicle?"

In order for the court to find that the trial judge had used or misused her advantage of hearing the

witnesses, the court would have to find that there

was some specific point in that very central question

in which Her Honour had demonstrably erred and, with

respect to the court, try as one might in looking at

the judgments, one can find nothing, particularly

definite, on that very central issue.

I have given examples in my submissions.

Mr Justice Kennedy perhaps came the closest when he

submitted essentially in his reasons that the findings

of credibility were so great and adverse that he was

entitled to come to that conclusion that he did.	And
he was the only judge to refer to BRUNSKILL's case

at all. But none of the judges went into the matter

in any detail. Mr Justice Wallace, for example, as I

have set out in paragraph 13, where I have actually

quoted his judgment, appears to have made his finding

on the basis that the judge was wrong as to the

credibility of Mrs Tretjak. Again, the same thing

can be said of the finding of Mr Justice Brinsden.

I have set out in paragraph 15 the page references

in the application book. He said, at page 45,

that essentially - that there were perceived errors

in Her Honour's findings, and that again the credibility

of the principal plaintiff's witness should have been

further examined or found against. But he did not go so

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far as to say that the finding was demonstrably

and undeniably wrong for any particular reason.

Therefore, it is submitted that the essence of

the case for special leave can be spelt out in,

perhaps, three sentences.

The first is that when an appellate court seeks

to intervene with a finding of a trial judge on a

question of fact which is not a finding of an
inference of a type discussed in WARREN V COOMBES
it is necessary that the finding be very strictly

within the principle set out in the BRUNSKILL case.

Next, it is sumbitted that it is necessary for the

Appeal Court to find specifically why it is within

the BRUNSKILL case, and thereby to identify the error

in a clear and unequivocal way. And, thirdly it is

necessary, it is submitted, for the Appeal Court to

distinguish the risk that they might be simply

differing on a matter of credibility; something that

any appeal court must be at risk. JuJges on appeals

frequently say they would not have come to the same conclusion had they heard the same facts but as in

WARREN V COOMBES this Court said that in that case

they have no choice but to uphold the appeal. Here

it is submitted that the decision appealed from

came perilously close to substituting a concluded

opinion of fact for that of the trial judge and they

did not go far enough to bring the finding or conclusion

within the principle that I have set out.

The second and subsidiary point turns on the question

of whether there should have been a new trial. The

case appealed from was one where the Appeal C0urt held

the judge had misused the advantage of hearing witnesses

and, therefore, effectively the wrong findings of fact

ha·d been made. To refuse to allow a new trial is to

deprive the applicant forever of his chance of making
his case, however good or however poor it might be,
before a tribunal of fact that can deal with it

adequately.

Here the Appeal Court has said that the fountain

is· tainted but it has not suggested going to an

alternative source of water. I would respectfully

submit that the casesthat I have submitted and

suggested do provide authority for the fact that when

there is a miscarriage in the use of facts or the

submission of those facts to the jury, or

tribunal of fact, then in such a circumstance it is

appropriate for a new trial to be granted. The

occasions when this would be necessary are very rare

indeed, but a case of this type is so extraordinary

and so unusual that it is one where it should at least

have been carefully considered. The only judge to give

consideration to this aspect on the appeal was

Mr Justice Kennedy and he simply negated it without

going into any great length.

PlT9/4/FK MR NICHOLS 25 I 10 / 39·

Tretjak 4

The last questions relate substantially to

time, but I do not propose at this stage to go into

the minutae of the detail of the judgements, although

I am prepared to do so when or if required, but simply

to set out at this stage the principle that it is

sought to assert, and perhaps have the opportunity

to respond to Your Honours when my learned friend

has finished.

DEANE J: Well, it is a matter for you.

MR NICHOLS:  Yes. The only point that I would seek to develop

at any length is the central question. I have set

out the subsidiary questions already. I would only

direct the Court to the passages of the application

book which are relevant to the conclusion that the

appeal judges essentially made a finding that differed

on credibility rather than on substantive matters.

I would turn first of all to page 34 of the

application book, where His Honour Mr Justice Wallace

said this:

The conflict therein contained -

between the evidence of Mrs Tretjak and Mr van Emden -

set against the evidence of Van Emden

must have clearly raised, in her Honour's

mind, the probability that the unknown

driver of the unknown vehicle, did not

exist.

Now that seems, in ~y respectful submission, to be

a finding that His Honour has differed on Her Honour's

finding on credibility, and that can be supported by

the earlier passages to which I have referred.

At page 29, for example, His Honour - that is

in the last paragraph - mentioned the weight given by

Her Honour to the evidence of Mrs Tretjak and on

the following page he instanced way in which, in his

view, Mrs Tretjak failed under cross-examination.

The point that I must make here is that let us assume

for the purposes of argument that Mrs Tretjak was
destroyed on the issue,as stated by His Honour, as to
the amount of drink taken. That would not have dealt

with the issue of the presence or absence of the

unknown vehicle, and therefore to that degree it is

submitted that His Honour Mr Justice Wallace's

conclusion was based upon a wrong principle.

His Honour did not take the matter further.

He adverted at page 32 to the considerable difficulty

that courts have dealing with cases of unknown vehicles

and the considerable burden for the tribunal of fact has

in making such a finding. But he did not go further

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and examine the way in which, other than questions

of credibility, the trial judge had erred in her

assessment of the witness. In order to have

satisfied himself it is submitted that the trial

judge had erred, he would have had to find that

the trial judge had made a finding that was

literally incredible; one that was not reasonably

open under any circumstances to a tribunal of

fact and I would go further and say that he would have

had to say so.

He first begins to deal with this question at

page 34 when he deals with my learned friend,Mr Wisbey's

submissions. But after setting out the grounds of

appeal he does not actually examine the matter and

concludes at page 36, after reciting the grounds:

For the reasons set out herein, in

my opinion, those grounds have been established.

So we have some difficulty there in taking

His Honour's findings much further than that, and

with greatest respect here, it is one where he has made a positive finding but not the one, perhaps, necessary to bring the matter within the principle.

Mr Justice Brinsden, at page 42 of the application

book, after reciting the facts, begins his examination

of them. At the top of the page he raises the question

and he says:

So far, therefore, as Mrs Tretjak is

concerned, we have a case where the story

told in examination-in-chief varied

considerably from what emerged in
cross-examination reflecting adversely on

the standard of the respondent's driving,

and that evidence was responsible for her

Honour making a finding of contributory

negligence. Before, therefore, accepting

Mrs Tretjak as a witness of truth, it would

have been necessary to examine the other

evidence very carefully and especially

evidence from an independent source, the

witness, Van Emden.

That is a clear statement, it is submitted,

that His Honour has relied upon a differing view on

credibility to support his decision rather than
upon a perceived error in the approach of principle

in the approach of the trial judge. Again, at page 44

His Honour found, half-way down the page, that:

1

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Tretjak

In some other respects also -

and I quote -

her Honour mistook the evidence.

There is no point in going into that in any detail

now,and that may well be the case, but the submission

that is made here is that it is not enough to dispose

of the central question Her Honour had to determine.

At page 45 His Honour gave a conclusion as follows:

These are factors which would have demanded

a very close scrutiny indeed of Mrs Tretjak's

evidence but it would not seem to me, with

respect, that her Honour examined Mrs Tretjak's

.evidence with the scrutiny desired. She

makes no reference to the change in her evidence,
and a significant change indeed between what

she said in examination-in-chief and what she

said after being pressed on cross-examination,

particularly so because her Honour's finding

of contributory negligence was based entirely

on what came out as a result of cross-examination.

This would seem, in my respectful submission, that

His Honour has, in fact, endorsed that Her Honour

did indeed take some account of the matters raised
in cross-examination, and varied her finding

accordingly. To go further than that, as His Honour

has, it seems, in my respectful submission, to be

saying no more than he differs in the final assessment

of the witness. But even that would not go far enough

to deal with the central issue.

His Honour uses those comments that I have just

quoted to reach the conclusion at the foot of the

page:

In my view her Honour's reasons, in part, are not satisfactory and I do not believe

that she has taken the proper advantage

of having seen and heard the witnesses and
evaluated their evidence.

That again is as far as His Honour takes it.

Mr Justice Kennedy, at page 47, again says:

It appears to me that her Honour

too readily glossed over the changes in

Mrs Tretjak's evidence between her

examination-in-chief and her cross-examination.

It was not, I think, sufficient simply to

ascribe one major change to her not being

prepared to be untruthful, and effectively

using it to her credit.

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Tretjak

That again does seem to be very much a question of credibility. Again His Honour examines the

cross-examination in further detail and, at

page 49, this was the conclusion that His Honour

reached:

The evidence of Van Emden was not fully

evaluated by her Honour, and what she did

say as to his evidence was substantially

affected by misunderstandings of what he

said. Van Emden did not, as she

suggested, say that he heard a squeal of

brakes, observe the wheels of the respondent's

vehicle spinning and then see the vehicle

stationary at the intersection of Jones and

Amelia Streets. In consequence, the basis upon which the learned trial Judge concluded

that the respondent was closer to Van Emden

than 50 metres after turning into Amelia Street cannot be sustained. Her Honour gave no weight

to the reasons expressed by Van Emden, an

entirely independent witness, for keeping his

eye on the respondent's vehicle, which were

that he thought it was going "a bit fast".

He then examines the evidence of Mr van Emden to support that proposition and concludes, at the foot

of page 50:

In my opinion, the appeal must be

allowed.

He then goes on to deal with the question of a new

trial. That judgment, with respect to His Honour,

comes the closest to any of the judges to deal with

the principle which is,. as I have stated, that

there must be an express finding that Her Honour

misused her advantage of hearing the witnesses or

was clearly wrong in some matter of principle.

However, it is the submission of the applicant here

that even that finding - assuming for the purpose

of argument that it can _be completely sustained in

every particular - does not deal with the central

question, · the finding of the presence or absence

of the vehicle. It is possible to accept everything

Mr van Emden said and still conclude that there was

still a vehicle present. At the end it is a matter

of weighing the whole of the evidence. · Three witnesses

gave evidence on this issue.. It is possible

to have concluded the presence of the vehicle from

any one of them, and it is possible to have

accepted any part of the evidence of any of those

witnesses to support or deny that basis. At the end

that examination can only really be made after hearing
the witnesses and unless the Appeal Court can point

to some glaring error of principle such as the fact

that one witness had retracted her previous evidence

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Tretjak

on that vital point, or that a witness had

confessed that he was lying, or that a witness had

been found to be not present at the time, or something

of that sort. However, nothing of that came from

what His Honour has just stated, all that came was that

His Honour differed in the end towards the assessment

of credibility.

It may well be - and I make this submission.

and also I would say, concession -

that had Mr Justice Kennedy been hearing the case

that he would have fully been justified in coming

to the conclusion that he did. However, he did not

hear the case, and the judge who did came to a

different conclusion.

DEANE J:  What do you say about the test that Their Honours

did apply? It is page 34 in Mr Justice Wallace's

judgment and page 37 in Mr Justice Brinsden's

judgment? They both go for glaring improbability.

MR NICHOLS:  I would respectfully submit that that is not

at all fours with the BRUNSKILL test. The BRUNSKILL

test uses these words, "palpably misused the

advantage" and then goes on to say "clearly wrong

on grounds that do not depend merely on credibility".

Those are the two principles that I would submit,

with respect, are the ones that ought to have guided

the court.

DEANE J: Except in one sense it is a matter of technique, really,

is it not, in that if you say, "I have looked at all

the evidence; the plaintiff's case was so glaringly

improbabl~ that something must have gone wrong - - -"?

MR NI CHO LS :  I can accept that, Your Honour. I would agree with that: a case

may be so glaringly improbable for the reasor!S I have suggested

that the principle is invoked. But it would be more

preferable, perhaps, to use a language that the

High Court has used.

DEANE J: Yes, except "glaringly improbably" does not seem too

unfavourable from your point of view.

MR NICHOLS:  No.

DEANE J: But I suppose it is a matter of what meaning you give

to words.

MR NICHOLS:  Yes. Well, the last two points I would seek to make I really probably have made. I would simply draw

attention to the two passages which I have quoted on

paragraph 2 of my submissions, which

seem, in· my submission, at any rate to lay out in the

clearest possible terms, the auty of an appeal court in

those circumstances.

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What I have sought to do is to go on further

and suggest the way in which that principle

can be refined, and I have set out in paragraph 7

the three principles which might perhaps explain

the BRUNSKILL decision. I would submit therefore

that in order to invoke the BRUNSKILL principle an

appellate court must a, specifically identify the

area in which the trial judge has erred. It must

then be identified as fitting specifically within
the area of neglect or advantage or misuse or

clear error, and thirdly, the judge must then

dispose of the question of credibility and must make

a specific finding that it is not merely a question of

credibility that is being disagreed with. In this

case two of the judges appear to have confused that

issue and relied mainly upon differences on

credibility, and the third judge, in effect, harked

back to that.

Those are my submissions, if the Court pleases.

DEANE J:  Thank you, Mr Nichols. The Court need not trouble you,

Mr Wisbey. In the view of the Court this case turns

very much on its own facts and does not really raise

any issue of general principle. That being so the

Court is of the view that it is not a case in which

it would be appropriate to grant special leave to appeal to this Court. Special leave is therefore refused.

MR WISBEY:  May it please the Court, I move for an order that

the application be dismissed and the applicant pay

the respondent's costs of the application to be taxed.

DEANE J:	Mr Nichols, there is nothing you can say - - -
MR NICHOLS:	No sLr, nothing to say.

DEANE J: Special leave is refused with costs.

AT 2.30 PM THE MATTER WAS ADJOURNED SINE DIE

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