Waterson v Batten

[1988] HCATrans 286

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S63 of 1988

B e t w e e n -

ALAN EDWARD WATERSON

Applicant

and

MICHELLE ANNE BATTEN

First Respondent

and

NEIL HARRIS

Second Respondent

Application for special leave

to appeal

Waterson

MASON CJ

BRENNAN J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 25 NOVEMBER 1988 , __ AT 11. 27 AM

Copyright in the High Court of Australia

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:t1R B.J. GROSS, QC:  May it please the Court, I appear with

:t1R P.C.B. SEMMLER, for the applicant. (instructed

by G.H. Reale~ & Co)

:t1R A.R. ABADEE, QC:  If it please the Court, I appear with

my learned friend, :t1R A.S. MORRISON, for the

respondents. (instructed by J. Mulder)

MASON CJ: Yes, Mr Gross?

:t1R GROSS:  May it please the Court. This matter raises for

decision by this Court two questions: first the

scope of the duty of judges to give reasons and,

in particular, the degree of elaboration which is

required in resolving conflicts of fact; second, the function of an appellate court, when asked to set aside a judgment appealed from, where the

decision at first instance either gives no reasons,

inadequate reasons or reasons which incorporate

irrelevant considerations.

Your Honours, the present appeal raises the

second question in the context of an appeal by
way of rehearing rather than appeal where the

existence of the jurisdiction depends on an error

of law such as was said to arise in the Court of

Appeal decision of SOULEMEZIS which is on the list

of authorities. However, as failure to give adequate

reasons is sometimes described - I think, since

PETTITT V DUNKLEY - as an error of law, we suggest

that granting leave to appeal will permit this Court

to give authoritative guidance on both classes of

appeals.

Your Honours, we are conscious of the fact that

this Court granted special leave to appeal in the

case of JONES V HYDE, an application for special

leave coming from the Federal Court Full Court, on

10 June 1988. Your Honours, the application for

special leave in this case was filed on 3 June 1988,

namely, some seven days before the Court gave this

decision.

MASON CJ:  Why has it taken so long for the application to come

forward?

:t1R GROSS:  Your Honour, we do not know; it may have related to

the commitments of the Court itself, I do not know of

any particular reason, Your Honour.

MASON CJ:	I think that is most unlikely.
:t1R GROSS:	Your Honours, can we make some inquiries? Your Honours,

I have no instructions on that but we will pursue the

matter. In our submission, it is perhaps u~~ortunP~~

for the applicant in this case that he did not come

here earlier.

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Waterson
MASON CJ: Yes. In so far as matters of general importance

arose in the JONES' case and they are common to

this case, those matters of general importance have

been resolved by the JONES' case.

MR GROSS:  We, inote what Your Honour says on that aspect. In

our submission, there are extra considerations in

this case involving conspicuous error which, in the

interests of justice, would require adjudication.

If this matter were to be linked to the JONES' case

for argument, in our submission, the extra time would

be marginal and the factual matters in dispute are

very simple matters which require little time for

their resolution.

MASON CJ:  I should have thought, actually, that the JONES'

case rather demonstrated that matters of this kind
are not of general importance and that invariably
they depend on the particular facts of the case and

the circumstances of it.

MR GROSS: Yes, Your Honour, that is usually the situation.

Your Honours, we concede that reasons do not have

to be given in respect of every subsidiary factual
conflict which arises for decision or which is raised

in argument. We accept that appellate courts should

not encourage excessively fine ex post facto

analysis of judgments, particularly in this area.

Your Honours, we appreciate that this is an

area where findings based on credibility are quite
common and a great degree of articulation of reasoning
is not called for or desirable in the general run of

case. However, Your Honours, the particular conflict

in this case was one where, notwithstanding the fact

that it was a motor car case, it required adequate

reasons to be given in relation to the central matters

at issue.

Your Honours, Mr Justice McHugh, in SOULEMEZIS

V DUDLEY HOLDINGS PTY LTD - if I just take Your Honours

to a very short passage there - - -

BRENNAN J: What findings should have been made that were not

made in this case?

MR GROSS:  The findings that ought to have been made in the

Court of Appeal were that, first, His Honour took

into account an irrelevant consideration and unduly

elevated the onus of proof facing the plaintiff by

requiring as a pre-condition-of finding for the plaintiff

that it. he found that the constable who had taken the

statement from the plaintiff had misconducted himself -

and this was a matter which Master Monaghan declined to

do - and, in our submission, -~~ut error appears clearest

at page 17 and the top of page 18 of the application

book.

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Your Honours, can I just very quickly give the underlying facts which bear upon this particular

error? The defendants' version which prevailed at

trial was that the plaintiff, on a motor cycle, on

a right-hand bend, turned and waved to a lady at the
side of the road, veered while doing so over the

centre line and hit the defendant's vehicle two feet on the other side of the centre line. The

lady identified as being that lady at the side of

the road was Mrs Dornan. She, however, in evidence

said that she was not at the side of the road but

300 to 400 feet away on her property inside her

garage putting her car away. There was a conflict

concerning the point of collision. The first

defendant said it was some feet on her side of the

roadway; Constable Dell, another police officer,

who was the boyfriend of the first defendant and

who came under attack in the case, said that there
were three skid marks on the defendant's side of the roadway, I think, some feet on the first defendant's

correct side.

Mr Dornam said that an hour and a half later

he looked for skid marks, found none and next day

came back and took photographs showing there were

no skid marks there. Now, Your Honours, the result

in the case turned on what occurred at page 17 of the

application book. Your Honours will see the plaintiff's

version of events is the first half of the page,

and there is no reference, by the way, to the

defendant turning to wave to a lady at the side of
the roadway. And the second part of the page relates

to what the plaintiff is alleged to have told the

police officer in an unsigned statement obtained
shortly after the accident.

Now, Your Honours, having set out the various sources of evidence and paraphrased some of the

evidence or quoted various slabs of evidence, the

decision came at the bottom of page 17:

Now I accept the evidence of Const Dell

that that is what the Plaintiff said to him.

I do not accept that Constable Dell acted dishonestly in his investigation of this accident.

And this is the critical sentence:

To accept the Plaintiff's case I would have

to find improper conduct on Constable Dell's

part. That I do not find.

And then the next paragraph sets out - - -

BRENNAN J:  Was that the plaintiff's case, that Constable Dell's

conduct was improper?

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MR GROSS:  Your Honour, there was a strong attack on

Constable Dell. He was cross-examined fully in

relation to his credibility and it was asserted,

in short, that he was deliberately not telling the
truth because of his presumed partiality in the

situation. However, Your Honours, on that aspect -

BRENNAN J: Is not what His Honour said a perfectly accurate

description of what the plaintiff's case was?

MR GROSS:  Yes, Your Honour, but in the Court of Appeal

Mr Justice Clarke, with whom Mr Justice Mahoney

agreed, analysed this particular aspect of the

evidence and came to the same sort of conclusion

which Your Honour has raised for consideration.

If Your Honours would look at the statement

on page 17 of the plaintiff at lines, I think, 13

through to 20, it is an unsigned statement which is

very, very brief and describes how he sees -

a vehicle coming in the opposite direction.

It appeared to be very close to the centre

line.

It is not specified where.

I tried to avoid the vehicle and swing off

but it was too late and I collided with
the driver's front guard.

Now, the plaintiff's similarly brief statement, omitting the reference to the turning to wave to the lady at the side of the road, was excused on the basis that it is a brief and concise statement

that did not go into detail, however, no such mercy

was extended to the plaintiff's statement.

But, Your Honours, looking at that statement as

compared to the version of events of the plaintiff,

there are three alternatives. Those three alternatives

were: it was consistent anyway; second, that there

had been some mistake or understanding in recording

the matter and, thirdly, that the constable was lying.

Now, in approaching this matter, Mr Justice Clarke, in the Court of Appeal .fell into exactly the same error

as the master did at first instance. Because the

highest point of the attack had to be the third

position and necessarily that had to be put, the

fate of the plaintiff's case was left to depend for

the master and, we would suggest, for Mr Justice Clarke,

on whether that attack was made out. And that involves - - -

GAUDRON J: That is not what the master said at all. What the

master said, surely, was strictly acc1 n:-~ te. He. said,

·i accept that that is what the plaintiff said to the

constable."

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I do not accept that Constable Dell acted dishonestly ..... To accept the Plaintiff's case -

in that context, being that he had not said that to

the constable -

I would have to find improper conduct on

Constable Dell's part.

MR GROSS:  Your Honour, just going to the statement: it is

a completely innocuous statement. It does not go
any further than recording the fact that an accident

happened after the plaintiff endeavoured to avoid the

other vehicle. And the reference at the bottom of

page 17:

I do not accept that Constable Dell acted dishonestly in his investigation of this accident -

refers, incidentally, of course, to matters like the skid

mark. But he goes on to say this:

To accept the Plaintiff's case I would have

to find improper conduct on Constable Dell's

part. That I do not find.

It is then followed by credibility findings but -

GAUDRON J:  But you are reading that as saying "To entitle the

plaintiff to a verdict, I would have to find improper

conduct on Constable Dell's part."

·MR GROSS: That is the text. That is not my submission, that is

the text of the judgment.

GAUDRON J:  It is a text taken out of context where he says,

"I accept that that is what the plaintiff said to

Constable Dell."

MR GROSS:

Yes.

GAUDRON J: And he would have to find misconduct on Constable Dell's

part to find otherwise. That, then becomes the

foundation for his judgment as to the credibility of

the plaintiff.

MR GROSS:  Your Honours, such a statement could be recorded in

such a way that there was no misconduct on the part

of Constable Dell. True, there are three alternatives

in looking at that recording of the statement but,

Your Honours, Mr Justice Clarke, as did Master Monaghan,

rejected the intermediate and less sinister possibilities,

namely, the statement was made and is consistent or,

alternatively, it is inaccurately taken down and

that is attributable to mistake or understanding. And
therefore both Master Monaghan and Mr Justice Clarke in
the majority, with whom Mr Justice Mahoney agreed,

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disabled themselves from finding or permitting a

verdict for the plaintiff to exist consistent with

the constable's evidence. But there was a second

aspect which, 'in our submission, may be important:

the plaintiff, concerning the resolution of the

factual disputes, was saddled with the consequences

of how his counsel cross-examined to assert certain

matters against the witness when there was an

obligation to put those particular matters. But

that, in our submission, does not mean that earlier

positions have to be advanced. So that the case

was transposed, not into a trial of the issue between

the plaintiff and the defendant, but a determination

almost on a disciplinary basis as to whether

Constable Dell had done his job dishonestly or not and,

that, in our submission, involved feeding in a

BRIGINSHAW-type onus on top of the civil onus that

the plaintiff bore in the normal course of events.

BRENNAN J: 

Mr Gross, could you articulate the question of

general public importance which the facts of this
case give rise to?

MR GROSS: 

Your Honour, apart from the matter in relation to

the adequacy of the reasons required, I concede there

is no matter of public importance in relation to

the subsidiary matter we are putting.	We would have
to put it on the basis - - -

BRENNAN J: Would you articulate what is the principle for

which you contend with. reference to the reasons?

MR GROSS:  Your Honours, that arises in a convenient form in

the judgment of Mr Justice McHugh in SOULEMEZIS,

· (1987). 10 NSWLR 24 7 at 280. Your Honours have that

judgment.

MASON CJ: Yes, we have it.

MR GROSS:  At page 280C, the second sentence in that paragraph

there, starting with the words, "Where the

resolutiort":

Where the resolution of the case depends

entirely on credibility, it is probably

enough that the judge has said that he

believed one witness in preference to

another; it is not necessary "for him to

go further and say, for example, that the

reason was based on demeanour". CONNELL V

AUCKLAND CITY COUNCIL. The position will

usually be different if other evidence and

probabilities are involved.

And then if I just skip the next portion, Your Honours:

If an obligation to give reasons for

decision exists its discharge does not

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require lengthy or elaborate reasons.

But it is necessary that the essential

ground or. grounds upon which the decision

rests should be articulated.

This, in our submission, was a case where there was

not only credibility questions or where the resolution

of the case depended entirely on credibility, there

was other evidence or probabilities involved. The

matter was resolved not solely by reference to -

BRENNAN J:  Do: you challenge any of the propositions that

appear in that page of the judgment?

MR GROSS:  No, Your Honour, we do not, but Your Honour invited

me to put the proposition we would put. That would

be the first stage of the proposition and the

second stage of the proposition directed at this

particular case is that adequate reasons are required

where what Mr Justice Asprey in PETTITT V DUNKLEY

described as "real and relevant issues of fact

arise for judicial decision" when they are central

to the resolution of the important element in the
case, especially where they are the subject-matter
of specific submission by the parties. So that

there is a core of evidential dispute which has

to be dealt with explicitly. Where, in fact, you

have got fundamental disputes of this kind, there
are just two areas which I will not go to in detail:

the first dispute is that the first defendant -

BRENNAN J: But before you go to the facts of the case,

the proposition simply is that the judge has to give

adequate reasons.

MR GROSS: Yes.

BRENNAN J: And the argument is that in this case, on your

submission, he did not.

MR GROSS:	I am sorry, Your Honour - - -?
BRENNAN J: Your submission is that in the facts of this

case the master did not give adequate reasons.

MR GROSS: Yes, Your Honour, that is so.

BRENNAN J: And the majority of the Court of Appeal are against

you.

MR GROSS:  Yes, Your Honour, and part of that reasoning

is what Mr Justice Clarke suggests, that in this

category of case you do not look for any abundance of reasons. Now, Your Honours, in our submission, it is erroneous to take a class of case, regardless

of the particular dispute, and assert that some

peremptory decision, even after a lengtlyprecis of

the evidence, is sufficient. That would invite, in

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our submission, adoption of what was said by the

Privy Council in a lot of the cases that

it is sufficient to summarize the evidence and

then give the· result. And, in our submission,

where one has fundamental disputes the matter does

have to be dealt with in a bit more detail.

Your Honours, there aret:wo ways to deal with

these matters: the first way is on the basis of
respective credibilities and if the master had done

that we would have no complaint, not only here but

in the Court of Appeal. But where, in fact, the
events are being analysed by reference to their

inherent probability and the processes embarked

upon, it ought not be short circuited by referring

to elements that are - that is in relation to the

conduct of a police officer - foreign to the

determination of the issue.. And the two matters

which focus upon that are Mrs 'Dornan is said not to

have been an eyewitness. There was no eyewitnesses.

She cannot, at the same time, have been waving back

to the plaintiff as he went by on his motor cycle

at the time of the accident and 400 feet away in her

garage putting the car away when, in fact, there was

no cross-examination on that other aspect.

The second matter is that it was necessary to resolve the conflict in relation to the skid marks

which is obviously a common matter of dispute in

cases like this where the police officer says

there are three skid marks at a particular location -

Mr Dornan comes along and finds none. And, in our

submission, it is not sufficient, given that type

of factual dispute, merely to say neither witness,

like a lot of the other witnesses, did not really

assist the court. In our submission, something more

was required and the existing judgment of the Court

of Appeal, in our submission, endorses that form of

peremptory performance of the judicial function in

this category of case.

That completes my submission, Your Honours.

MASON CJ: Yes, thank you, Mr Gross. We do not wish to hear

you, Mr Abadee.

MR ABADEE: If Your Honour pleases.

MASON CJ: There is here no question of general principle nor

are we persuaded that the decision of the Court of

Appeal is attended with sufficient doubt to warrant

the grant of special leave to appeal.	The application
is refused.

MR. ABADEE:  Your Honours, I would ask for an order for costs?

MASON CJ: Yes, and with costs, Mr Gross.

AT 11.49 AM THE MATTER WAS ADJOURNED SINE DIE

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