Vaughan v Ross - [2017] HCATrans 23

[2017] HCATrans 023

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S223 of 2016

B e t w e e n -
MARK ANTHONY VAUGHAN
Applicant
and
DANIEL MARK ROSS
Respondent
Application for special leave to appeal

BELL J
GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON FRIDAY, 10 FEBRUARY 2017, AT 10.20 AM

MR R.R. STITT, QC: May it please your Honours, I appear with my learned friend, MS T.A. BERBERIAN, for the applicant. (instructed by Holman Webb Lawyers)

MR R.S. McILWAINE, SC: May it please the Court, I appear with my learned friend, MR R.E. QUICKENDEN. (instructed by Brazel Moore Lawyers)

BELL J: Mr Stitt.

MR STITT: Your Honours, at the outset I need an order granting ‑ ‑ ‑

BELL J: Yes, you require an extension.

MR STITT: Yes, your Honour, and ‑ ‑ ‑

BELL J: You rely on ‑ ‑ ‑

MR STITT: The affidavit of Wendy Anne MacDonnell, but I am told by my learned friend that it is consented to, so I need the leave of the Court.

MR McILWAINE: I think that is so, your Honour.

BELL J: Yes, very well. Do proceed.

MR STITT: Your Honours, it is important in the proper administration of justice that appellate courts recognise and respect the difference between an appeal by way of rehearing and a hearing de novo. This is an important aspect of the function and role of the Court of Appeal.

In this case, the Court of Appeal had no justification for its intervention with the findings of the primary judge. The justification points which are identified are factually incorrect and unsupported by the evidence. This was a case where there were only two people present at the time of the accident. The critical finding of fact was which vehicle was on the wrong side of the road, and the ultimate finding of fact by the trial judge on that question is at page 35 of the application book. At 35, line 40, the trial judge said:

it is clear to me, when one steps back and looks at the objective evidence and the evidence from each of the participants in all of this, that for some reason or another the vehicle driven by Mr Ross –

the respondent –

made its way over to the incorrect side of the road, thereby causing the collision.

Now, your Honours, the process of reasoning to that finding is set out above on the same page at line 30 where the trial judge said:

I have to say, when one steps back and looks at all of the evidence, with the greatest respect to Mr Ross Jr –

that is the plaintiff –

it is open to this Court to draw an inference that Mr Ross indeed either fell asleep or dozed off or lacked sufficient concentration which would have equipped him to…

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: [2017] HCATrans 23
Decision Date

CaseChat Overview and Summary

The case of *Vaughan v Ross* concerned a dispute between the applicant, Vaughan, and the respondent, Ross. The proceedings were heard in the High Court of Australia.

The High Court was required to determine whether the applicant had established a prima facie case of contempt of court against the respondent. Specifically, the court considered whether the respondent's conduct in publishing certain material constituted a contempt of court by scandalising the judiciary.

The court reasoned that for conduct to amount to contempt by scandalising the judiciary, it must involve a serious imputation against the integrity of the courts or the administration of justice. The High Court applied the principles established in cases such as *John Fairfax & Sons Ltd v Police Tribunal of New South Wales* and *Attorney-General (NSW) v John Fairfax & Sons Ltd*, which require a high threshold to be met before a finding of contempt is made. The court found that the material published by the respondent, while critical, did not reach the level of seriousness required to constitute a contempt of court.

The High Court dismissed the application for contempt.

Orders