Waterways Authority v Fitzgibbon & Ors

[2004] HCATrans 543

[2004] HCATrans 543

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S2 of 2004

B e t w e e n -

THE WATERWAYS AUTHORITY

Applicant

and

DANIEL GERARD FITZGIBBON

First Respondent

MIDDLE HARBOUR YACHT CLUB

Second Respondent

MOSMAN MUNICIPAL COUNCIL

Third Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 2004, AT 9.55 AM

Copyright in the High Court of Australia

__________________

MR J.L. GLISSAN, QC:   If the Court pleases, I appear with my learned friend, MR M.J. FORDHAM, for the applicant.  (instructed by McCabe Terrill)

MR D.A. WHEELAHAN, QC:   May it please the Court, I appear with my learned friend, MR E.G. ROMANIUK, for the first respondent.  (instructed by Paul A Curtis & Co)

MR P.R. GARLING, SC:   If the Court pleases, I appear with my learned friend, MR R.J. CHEYNEY, for the second respondent, the Yacht Club.  (instructed by Riley Gray‑Spencer)

MR P.W. TAYLOR, SC:   If the Court pleases, I appear with MR S.P.W. GLASCOTT for the third respondent, the Council.  (instructed by Phillips Fox)

McHUGH J:   Yes, Mr Glissan.

MR GLISSAN:   It is difficult to know precisely what to say in the beginning, your Honour.  One is tempted to say it is infrequent but not impossible to be ambushed during the course of argument in the Court of Appeal, but rarely in the judgment.  What happened in this case, and which we say ‑ ‑ ‑

KIRBY J:   Is this a procedural fairness argument?

MR GLISSAN:   Yes, your Honour, essentially.  What we say happened in this case was ‑ ‑ ‑

KIRBY J:   How could you have been surprised?  You had all those lay witnesses denying that the plaintiff dived in.

MR GLISSAN:   Indeed.

KIRBY J:   Well, why would you be surprised that the Court of Appeal should find that a finding to the contrary was unpersuasive and not sustained by simply – I mean, this is not a case where the doctor who took the recorded statement had some special gift of discerning truth from falsehood in what the plaintiff said at the time.

MR GLISSAN:   No, indeed.  That is not the point of complaint, though.  The complaint is that the appeal was conducted on a basis – that the pleadings in the appeal were on the basis that the appellant below contended for one of two results, either that the Court of Appeal would rehear and redetermine the matter, resulting in a verdict for the plaintiff, or that there would be a retrial on all issues.  We sent up, because we received it too late to include in the application book, the transcript of the argument in the Court of Appeal, which I trust your Honours have.  It is made clear, within a very, very short period of the appeal commencing, in the middle of page 7 from line 20 on, that, as Mr Justice Foster put it, he delivering the judgment of the court: 

I take it the only result if you are successful in this appeal would be a new trial in those circumstances. 

Then the next passage, counsel who then appeared raised for the only time, and then but faintly, the prospect that there might be some finding of fact which would confine any rehearing, but, he said: 

apart from that the matter would have to go back for a new trial.  The only question might be if this Court was persuaded that on the facts his Honour’s factual finding as to how the event occurred should be reversed . . . it may be that the Court would not be disposed to determine the factual issues but would send that back as well, assuming the appeal was successful. 

The point is never further agitated below.  During the course of argument, if I could take your Honours forward to page 41 of the transcript, between lines 25 and 30, we put it this way:

It’s appropriate that it be left as it is.  If the Court takes a different view, all issues in our submission, must go back for a retrial.

To which Justice Meagher said:

I think that must be so.

Justice Foster, further down at 46:

A retrial on all issues is what you’re putting, including this issue –

GLISSAN:    Yes, that’s exactly right your Honour, it all needs to be reagitated, if it has to be reagitated at all. 

Then at the foot of the page, Mr Harrison, who then appeared for the second respondent to the appeal:

The only issue I wanted to speak to which seems now to be uncontroversial is the last –

namely, there would be a retrial on all issues.

KIRBY J:   Yes, but a Court of Appeal hearing is a rehearing and you are not contesting the power of the Court of Appeal to make the finding. 

MR GLISSAN:   Not at all, no.  The power is made clear under at least two of the subheadings of section 75A, either under (5) or (10), one would have thought.

KIRBY J:   The passages that you cite indicate the thinking of the court on the way to its decision, which is the way these things happen, but, in the end, the court has to exercise its jurisdiction.

MR GLISSAN:   But our real complaint is that we were never given the opportunity to be heard about the nature of the retrial.  It was on the basis that it would be on all issues unconfined.  If one looks at what is involved in this case, there are a number of collateral issues that relate to the evidence of what happened on the wharf, not merely whether the plaintiff fell or was pushed.  As one of my learned friends has said in their submissions, which are in the application book, that has an impact on issues of contributory negligence, it has an impact on issues of primary negligence.  One needs ask, are we entitled to call and rely on the evidence of Dr Trevithick in relation to the admission by the plaintiff at all? 

The reasoning that informed Justice Foster’s judgment in this, we say, is defective, because of a misapplication of what this Court had said in Earthline and again, in a slightly different form, in Fox v Percy.  In those cases there had been objective evidence, in this case the doctor’s note and the ambulance notes, in Fox v Percy the skid marks and the ambulance notes, in Earthline the conflict between the record and the oral evidence that had been given by those asserting the work had been done and testimony on which the trial judge based a decision, which tension led to the Court being able to say the judge’s decision was or was not supportable according to the case. 

Here, what has been done is to take entirely consistent material and to usurp the role of the trial judge in just the way, with respect, the Court of Appeal should not, as has always been said by this Court since 1904, by taking two competing bodies of evidence and reweighing it without any of the advantages that a trial judge has.  Those were the eyewitnesses ‑ ‑ ‑

KIRBY J:   Is that not inherent in the attack which was being made by the plaintiff on the finding of Justice Newman?  The attack which the plaintiff was making, does that not necessarily require that you decide whether the contrary conclusion is compelling in the evidence that was at trial?

MR GLISSAN:   But this was a case where it was agreed, your Honour, it had to go back for a retrial.  What was to be retried, among other things, was that very issue, because t is wrong, with respect, to characterise the evidence of the doctor as being tested by whether or not the doctor had some mystical power to discern truth.

KIRBY J:   But the feature of the appearance of the doctor – what would that do to strengthen his evidence in a second trial before a single judge as distinct from a trial on the transcript of a matter which had been a very thorough trial, as far as the trial was concerned, before the three judges of appeal?

MR GLISSAN:   The demeanour issue, if I read your Honour correctly, really relates more to the plaintiff than Dr Trevithick, because what Dr Trevithick’s note amounts to is an admission by the plaintiff, “I dived”.

McHUGH J:   It was not only the diary note but ‑ ‑ ‑

MR GLISSAN:   Supported by the ambulance note.

McHUGH J:   Yes, and Dr Trevithick was regarded as an impressive witness.

MR GLISSAN:   Honest, reliable, and therefore ‑ ‑ ‑

KIRBY J:   He is not a detective.  He is not there to be taking down investigations.  The plaintiff could have said things to the effect of “dived” but that does not really foreclose the issue whether his movement into the water was affected by his being pushed or losing his balance, which all the witnesses said.

MR GLISSAN:   But, your Honour, with respect, does not that exactly satisfy the issue that I am raising with your Honour, that that is something that ought to be properly tested in a court if there is to be a retrial as part of the issue in the retrial?

McHUGH J:   I am not sure about that.  Speaking for myself, if this had been a jury trial, I doubt if any counsel could be found to have put the submissions that Mr Wheelahan successfully put to the Court of Appeal and, speaking for myself, I cannot see, at the moment, how the Court of Appeal could possibly have set aside this verdict.  But assuming I am wrong on that, and they did set it aside, then why can they not make the findings that they did?

MR GLISSAN:   For two reasons.  First, we were not heard in relation to it and that seems, with respect ‑ ‑ ‑

McHUGH J:   I have never seen a case like this before.  I doubt if any case can be found where you have a perfectly reliable witness, a doctor, who is found by the judge to be an impressive witness, who gives evidence of a clear admission by the plaintiff, whose evidence is supported by a contemporaneous note, backed up by notes from the nursing staff and the ambulance staff, and the Court of Appeal says, “Well, I prefer the evidence of six other witnesses who, five years later, come along and give their version”.

KIRBY J:   Well, I do not find the decision of the Court of Appeal the least bit surprising on the facts of this case.  The evidence was overwhelming and compelling evidence can, in a judge trial, authorise the Court of Appeal, indeed, require it, to substitute its conclusion on the facts.

MR GLISSAN:   Far be it for me to suggest your Honour is guilty of a heresy, but let me say, with respect ‑ ‑ ‑

KIRBY J:   It is Fox v Percy.

MR GLISSAN:    ‑ ‑ ‑ that if your Honour looks at what this Court said in Earthline of what was said in Fox v Percy, certainly in Fox v Percy ‑ ‑ ‑

KIRBY J:   I was a party to the joint reasons, I know very well what Fox v Percy says.

MR GLISSAN:   I know.  What I wanted to put to your Honour was this, that where this issue is raised one needs not to look at whether or not the Court of Appeal could have reached a different conclusion, but whether or not the conclusion that was reached by the trial judge was, as was said in Fox v Percy, glaringly improbable.  Justice Foster tied his reasoning, such as it is, to that expression in this case.  He says, “Well, it was glaringly improbable this man would dive into 1½ metres of water”.  With respect, your Honour, that is just simply not so.  It is not a conclusion that is open either on the evidence or on common sense. 

KIRBY J:   It is a question of what you mean by “dived”.  I mean, you have five people saying he did not go bottom‑up and head‑down.

McHUGH J:   Well, one of them did say he ‑ ‑ ‑

MR GLISSAN:   One of them said exactly that, your Honour, with respect but the other thing is this, that, taking what your Honour says, we have been deprived of precisely the opportunity to explore that issue ‑ ‑ ‑

KIRBY J:   No, you have not.  You had it in the Court of Appeal and if you did not take the opportunity, you missed – the obligation of the Court of Appeal is to hear and, if it can, determine the whole matter on the facts of the transcript.

MR GLISSAN:   But it was conceded at the outset by the appellant ‑ ‑ ‑

KIRBY J:   Well, let us have another look at that.  If there is a concession, well, I will be with you because, if it is conceded, it should not be undone.

MR GLISSAN:   What Mr Hislop said, at page 7 in the passage to which I referred your Honours, was this: 

There’d have to be a new trial.  The only question might be if this Court was persuaded ‑ ‑ ‑

KIRBY J:   Who was Mr Hislop for?

MR GLISSAN:   He was counsel in the court below for the appellants.

KIRBY J:   He was for the plaintiff.

MR GLISSAN:   He was Mr Wheelahan’s predecessor.

KIRBY J:   So Mr Wheelahan was being blamed for something he never did.

MR GLISSAN:   Your Honour, it always happens. 

McHUGH J:   He is just too persuasive.

MR GLISSAN:   That must be it, although that did not seem to be the effect he had on the trial judge.

KIRBY J:   Yes, press on.

MR GLISSAN:   If your Honours then go to this passage at the bottom of page 7: 

[there] might be if this Court was persuaded that on the facts his Honour’s factual finding as to how the event occurred should be reversed and the plaintiff’s should be accepted, but apart from that the matter would have to go for a new trial ‑ ‑ ‑

KIRBY J:   Well, that is raising the issue.  He is saying it is up to the court.  These things, as I sat there for 13 years dealing with these things, sometimes it is not appropriate, sometimes it is.  Was their argument addressed to the resolution of the factual issue for the point of view of the Court of Appeal exercising its fact finding decision?

MR GLISSAN:   As to the first part of that question, yes.  As to the second part, no.  There was argument addressed to that issue, in our submission, directed at whether or not the judgment of the trial judge could stand or whether there should be a new trial on all the issues, but there was no argument expressly put that the finding should be reversed.  The case was not conducted on that basis.

KIRBY J:   My problem remains the one that Justice McHugh identified.  It is a difficult thing to set aside a judgment where there is objective, contemporaneous evidence, as there was in this case.  But once you decide that the facts are compelling that authorise you to do that, what is the factor of appearances and impressions that is going to put a new trial judge in a better position than the three judges of appeal?

MR GLISSAN:   A new trial is not going to be conducted on the transcript, it is not going to be conducted and confined, necessarily, in the way that the first trial was conducted.  These issues may be agitated in a more detailed and more complete way.  Part of the criticism – if that is the appropriate word – of the way the applicant’s case was conducted at first instance was that the cross‑examination was said to be, in some cases, incomplete, probably for tactical reasons, rather than exploring the issue thoroughly.  But that of itself is an additional reason why the issue ought not to be withdrawn from the next trial judge.

KIRBY J:   I do not know about that.  If you conduct it in a particular way at trial, knowing of the powers of the Court of Appeal in rehearings, then that is your lookout.

MR GLISSAN:   But, your Honour, the appeal – and I have to go back to this – was not conducted on that basis.  If you go to the notice of appeal, which is at the beginning of the application book, the only order sought in relation to retrying the matter is at page 25 of the book, order 5:

Proceedings remitted to the Supreme Court for determination of all issues.

While I would not have thought that in an application for special leave, costs or an order for costs was ever likely to attract a grant of special leave, it is an unusual case where a retrial is ordered and the Court of Appeal, in its discretion, orders the successful parties in the appeal – I am sorry, the parties at least have the benefit of a retrial in the appeal ‑ ‑ ‑

KIRBY J:   It is not illogical, given their substitution of the verdict in favour of the plaintiff.

MR GLISSAN:   But, with respect, it is, because at the very outset it was made clear to the court by Mr Hislop, who appeared for the appellant below, that the case did not conclude in favour of the plaintiff by reason of the fact that the plaintiff dived.  There were other issues about the nature and scope of duty that was owed, the nature of any breach and by whom, that needed to be reagitated.  It was one of the reasons that he conceded at the outset that there must necessarily be a retrial.  You see, one of the things that appears on that passage ‑ ‑ ‑

KIRBY J:   Would you say again what you say is the element that would advantage – error having been found, what is the advantage which a new trial judge would have over the Court of Appeal in deciding whether he dived or did not dive?  I mean, you have the transcript, you have your contemporaneous record, the record at trial examined this issue.  Now, once you make that finding, I am just not sure, in my own mind, what it is that is the advantage of a second full trial as distinct from ‑ ‑ ‑

MR GLISSAN:   So far as the plaintiff is concerned, there is a real question of the frankness and demeanour of the plaintiff, which was not available to be considered by the Court of Appeal.  It is the demeanour issue which Justice Meagher, at the end of the judgment at page 44, somewhat dismissively says:

We can’t say a la Mr Justice McHugh, because of a subtle influence of demeanour.

That is true in relation to Dr Trevithick, but it is not true in relation to the plaintiff.  The plaintiff’s evidence about this conversation with the doctor was not “I did not have it”, not that “I did not say it”.  It was no higher than “I don’t remember”. 

In relation to the issue, which will go to contributory negligence, of the consumption of alcohol by the plaintiff, one example that springs

readily to mind is that he was asked “Did you not drink beer and rum and coke?”, to which his answer was “I don’t drink beer”, not distinctly denying the proposition that he may have been affected by alcohol to a greater or less degree.  That was not explored as much at the first trial as it may well be at a subsequent trial, but the question of the assessment of the credibility of the plaintiff, in relation to what he said to Dr Trevithick and the nursing staff and to the ambulance staff, remains a very live issue and a very important issue in the resolution of whether or not he dived or was pushed or, if he dived, to adopt what your Honour say, how he dived – whether he dived as a result of beginning to fall first and converting it to a dive, and even then that would raise issues of contributory negligence ‑ ‑ ‑

KIRBY J:   Now, I can understand how the Court of Appeal would reason, “This was a trial before judge alone, we have all the evidence, it is on the transcript, impressions are not going to overwhelm the overwhelming evidence on one side, and therefore we should decide the matter for ourselves”.  Is there anywhere where Justice Foster, as it were, weighed up sending the matter back or not?

MR GLISSAN:   No, nor were we ever asked to deal with that issue, as I have said more than once.

KIRBY J:   You say that, having regard to what was said to him and what Justice Meagher said and what was effectively conceded, though not fully conceded, that what you were expecting and should have got was a retrial where the plaintiff’s credibility, at least ‑ ‑ ‑

MR GLISSAN:   That is exactly so, your Honour, and we say that it was not raised either by Mr Hislop in his brief submissions in reply.  I see my time has expired.

McHUGH J:   Yes.  Mr Garling, you support the grant of special leave?

MR GARLING:   Yes, we do, but we do not wish to add anything to what my learned friend has said.

McHUGH J:   Yes.  And Mr Taylor, you do not oppose ‑ ‑ ‑

MR TAYLOR:   I take the same position, your Honour.

McHUGH J:   Yes, Mr Wheelahan.

MR WHEELAHAN:   Thank you, your Honour.

CALLINAN J:   Mr Wheelahan, could I say this for myself.  I do not have any difficulty, consistently with what I said in Fox v Percy, with a Court of Appeal’s doing what the Court of Appeal did here.  It was perfectly open, in fact, I think the statute requires it in some cases.  But I am concerned about the natural justice issue because ‑ ‑ ‑

McHUGH J:   And, Mr Wheelahan, consistently with what I said in Abalos, I am concerned about this interference with trial judges’ findings of fact.

KIRBY J:   And just in case it helps you, consistently with what I said in Earthline and Fox v Percy, I am with Justice Callinan. 

MR WHEELAHAN:   Well, unfortunately, I have no personal precedent to rely upon, your Honour, but I rely on everything that your Honours have said in that trilogy of famous cases.

Your Honours, may I take Mr Justice Callinan to the natural justice point.  At page 7 of the submissions, line 45, Mr Hislop says:

There’d have to be a new trial.  The only question might be if this Court was persuaded that on the facts his Honour’s factual finding as to how the event occurred should be reversed and the plaintiff’s version should be accepted, but apart from that the matter would have to go back for a new trial –

What Mr Hislop did was present to the Court of Appeal a proposition that was entirely consistent with the way the whole of this case had been conducted.  One of the cardinal defining features of an adversarial trial is that the parties define the issue.  It would not have been lost on your Honours that in the pleadings, in the particulars, and in the differential case management documents none of the defendants raised the issue that the plaintiff had dived into Middle Harbour.  When the issue was raised before the trial judge, it was objected to on the basis that it had not been the subject of any pleading or any advance notice that it was part of the defendant’s case.

CALLINAN J:   But why would the defendant be obliged to plead it?

MR WHEELAHAN:   If, as learned counsel for the defendant below, Mr Bridge, said, it went to the fundamental issue of liability, one would have thought that the plaintiff was entitled to have notice of it.

CALLINAN J:   Well, no, the plaintiff gives notice of it in cross‑examination.  The defendant denies ‑ ‑ ‑

MR WHEELAHAN:   Liability.

CALLINAN J:   Yes, and denies the allegation, no doubt, the relevant factual allegations made in the statement of claim, and then raises this sort of issue in cross‑examination.

MR WHEELAHAN:   Yes, but there is more to the preparation of a trial that is under the differential case management regime, your Honour, and that is that the defendant has to set out, according to the rules, a precise narrative of the facts upon which it relies.  Now, Mr Taylor’s client said nothing because he was the Mosman Council, his liability, if any, depended upon an entirely different set of considerations.  He said nothing.  But the other two defendants, that is, the Waterways Authority and the Middle Harbour Yacht Club, both said that the plaintiff was pushed or fell.

CALLINAN J:   Mr Wheelahan, just tell me this, when did it first become apparent, either from the obligatory pretrial written narrative or cross‑examination or otherwise, that this was an allegation against your client ‑ ‑ ‑

MR WHEELAHAN:   In the course of the cross‑examination by counsel for the first defendant below.

CALLINAN J:   Well, you knew about the matter then.

MR WHEELAHAN:   We knew about it then, but, your Honour, we were entitled to know about it a lot earlier and we were entitled not to be misled by a different proposition to diving being put to us.

CALLINAN J:   But Mr Wheelahan, you knew then, you did not apply for an adjournment, I take it, the trial proceeded.

MR WHEELAHAN:   Absolutely.

CALLINAN J:   This was an issue?

MR WHEELAHAN:   The trial proceeded on all issues, your Honour.  May I interpolate there to record that the complaint by my learned friend, Mr Glissan here that an opportunity was not availed of below to deal with all the issues of contributory negligence that were raised in pages of particulars, none of which included diving, I might add, was open to all the parties in the court below, in the court at first instance, and were extensively availed of. 

My learned friend cannot say that the trial in front of Acting Justice Newman was a rehearsal for some other forensic event.  All issues were on the table, the opportunity was available to the defendants to pursue every matter of contributory negligence, including liquor, including what the plaintiff said to the ambulance officer, although that was denied, including what was recorded in the hospital notes as being attributed to the plaintiff, although that was denied.  It was never proved that the plaintiff made any of the admissions that were recorded in the ambulance notes or any of the statements recorded in the hospital notes.  That was dealt with comprehensively by Mr Justice Foster. 

Your Honours, may I go back to the no particularisation of diving, the six eyewitnesses, including the plaintiff, who were accepted by the trial judge as credible and honest witnesses.  That was a finding of fact.  This is not a Fox v Percy case, it is not an Earthline case.  There is no element of the subtle influence of demeanour.

KIRBY J:   No, but this is what is put to us, that the plaintiff’s testimony is very important to the elucidation of whether he “dived” or did not dive, what it meant.

MR WHEELAHAN:   Well, your Honour, may I ask rhetorically, then, what did we have a 20 day trial for?  That whole issue ‑ ‑ ‑

KIRBY J:   Well, that is so, but that is the very point.  The point is that especially in light of the very soft way in which Mr Hislop put it to the Court of Appeal, for their Honours then to deprive themselves of that factor in resolving the ultimate factual issue between the parties was not the correct way to exercise their powers.

MR WHEELAHAN:   Well, your Honour, there was one fact tendered for consideration before the Court of Appeal and that was because of the way the defendants developed their approach to the factual matrix of the case, namely, did the plaintiff dive or was he pushed or jostled?  There was no other alternative offered, there was no other alternative suggested, and what happened was that that fact, and that fact alone, went forward to the Court of Appeal.  And for the reasons that were advanced and elucidated by Mr Justice Foster, the Court of Appeal found, and clearly within power, that the finding of the trial judge below was incorrect.  So what choice did it have?  It had A or B.  The trial judge said A, the Court of Appeal said B.  It would have been derelict ‑ ‑ ‑

KIRBY J:   But if it is as clear as you say, A or B, why did not Mr Hislop say, “Well, there does not need to be a new trial.  Your Honours, should determine the issue.  It is A or B”.

MR WHEELAHAN:   He said, in terms, your Honour ‑ ‑ ‑

KIRBY J:   It is very soft, Mr Wheelahan.

MR WHEELAHAN:    ‑ ‑ ‑ “Should you reverse that finding of fact”, the only fact that was presented to the Court of Appeal for consideration.  He went on, your Honour, at page 20 ‑ ‑ ‑

KIRBY J:   It is “The only question might be if this Court”, that is what he says.  It is very soft.  It is not a submission that “If you accept my submissions, then you should reverse Justice Newman and enter judgment for the plaintiff”. 

MR WHEELAHAN:   But what he does is offer the Court of Appeal a sensible way to resolve the matter that has occupied the court below for so long and occupied the Court of Appeal, namely, did he dive or was he pushed or jostled into the water?  He says that if:

his Honour’s factual finding as to how the event occurred should be reversed and the plaintiff’s version should be accepted –

Later, at page 20, your Honours, Mr Hislop develops this a little further and at line 41, he says:

Yes.  For all of those reasons we submit his Honour’s conclusion was wrong and that this Court would come to the contrary conclusion in that regard.

Your Honours, the only thing he is talking about is this discrete factual issue that has been defined by the conduct of the defendants in the trial and in the Court of Appeal.  So he said, “That is what we want you to do”.  Then, contrary to what my learned friend, Mr Glisson, says, at about 41, he seems to take some comfort from that which fell from Mr Justice Foster.  Mr Glisson introduces the topic at about 41 or revisits it: 

No indeed, it just gets the plaintiff a prima facie case and one then needs to go and consider issues of duty and the like. 

Well, there is nothing in the finding of the Court of Appeal which precludes that inquiry taking place in any retrial.  And Justice Foster, in our respectful submission, is saying, somewhat incredulously: 

A retrial on all issues is what you’re putting, including this issue of--

did he dive or was he pushed or jostled?  In effect saying, your Honours, we think you could conclude, “Surely not”.  Then we go to the judgment of Mr Justice Foster ‑ ‑ ‑

KIRBY J:   But Mr Glissan could not be clearer, “it all needs to be reagitated”. 

MR WHEELAHAN:   Well, may I inquire rhetorically again, your Honour, so what?  What Mr Justice Kirby said earlier is, “This is not a judicial guarantee of a retrial on all issues”, Mr Justice Meagher saying, ‘Quite”, Mr Justice Meagher saying to Mr Harrison, “I don’t think you will have to worry about that”.  What happened, when the court came to consider the whole of the matter and left it to Mr Justice Foster to express the reasons of the court, is that he commenced his judgment with this observation, page 30, line 33:

A new trial is sought on a limited basis to which I shall refer later.

Now, it was not lost on Mr Justice Foster that Mr Hislop’s primary submission was, “Decide this fact, eliminate that from the range of matters that needs to be reviewed in any retrial, because that is what has come up to us, fact A or fact B.  One party contends for A, the other for B, we find B far more persuasive”.  Then when Mr Justice Foster comes to give his judgment – and this is the nub of the Court of Appeal decision, we respectfully suggest.  It is found at page 81 of the application book, paragraph 108:

However, I have come to the conclusion that the appellant’s primary submission, that he is entitled, in this appeal, to a finding that, through being jostled or pushed, he lost his balance and fell into the water, should be upheld.

So Mr Justice Foster is in no doubt of what is being put to him and that adds some strength to my analysis of what I described as his somewhat incredulous response to the suggestion that everything should go back for a retrial, when the defendants have had an opportunity to agitate, to ventilate, to argue and present every matter that they seek to do at trial in the first place.

Your Honours, Mr Justice Foster, on behalf of the court, came to consider the documents, other than the contemporaneous note of Dr Trevithick, and he did that at page 67 of the application book in paragraph 77.  He said:

In summary, I have formed the view that, in the absence of oral testimony from the persons making the notes, the notes themselves can form no sound basis for an inference that the appellant made any statements amounting to admissions that he had deliberately dived into the water.  Indeed, it appears from the reasons of the learned primary judge, that he did not place significant reliance upon them, in comparison with the very considerable reliance he placed upon the oral evidence and written note of Dr Trevithick.  I turn, then, to this evidence.

That evidence of the ambulance note and the hospital notes, which were internally inconsistent and inconsistent one with the other, was objected to on the basis that it did not – that is, the note recorded by unnamed and uncalled officers – constitute an exception to the hearsay rule.  But, in any event, your Honours, what the learned trial judge did was weigh up the evidence and consider the evidence called on behalf of the plaintiff to be credible and persuasive. 

Your Honours, the learned trial judge admitted into evidence and recorded in his reasons for judgment, the first utterance of a 20 year‑old boy who had broken his neck and knew it.  His first utterance to Mr Ben Moon was, “Who pushed me in?”.  The trial judge noted that.  That evidence was given, not challenged, not the subject of any attack of any description and, having noted it, he moved on, making no reference to it other than the fact that it was given.  There was no cross‑examination of any one of the six eyewitnesses, eyewitnesses to various snapshots of this event as it developed and Mr Fitzgibbon plunged into Middle Harbour. 

KIRBY J:   Their evidence is recorded by Justice Foster as pretty strong and I think the trial judge said that he accepted them as witnesses of truth.

MR WHEELAHAN:   He did.

McHUGH J:   Did he say that, that he accepted them as witnesses of truth?

MR WHEELAHAN:   Yes, he did.

McHUGH J:   Where is that passage?

MR WHEELAHAN:   Your Honour, we will see if, contrary to my expectation, Mr Romaniuk is worth his salt, as he searches assiduously for the document.

KIRBY J:   My experience when Mr Romaniuk worked in the Court of Appeal was that he was certainly worth his salt. 

McHUGH J:   The judge said that if the evidence had remained as it was at the end of the plaintiff’s case, he would have found for your client, but he said that he was of the view that Dr Trevithick was not only a truthful witness but also a reliable one, and he accepted fully that he had a clear recollection of what he was told that evening by the plaintiff.  That is pretty hard evidence to overcome, particularly when it is backed up by corroboration. 

MR WHEELAHAN:   But it is backed up, your Honour, by, may I respectfully submit, his own corroboration.  You see, one of the difficulties with this complaint about the finding being Fox v Percy or Earthline in reverse is that in both of those cases the intermediate court had to consider the documents that had a provenance other than that of the witness giving the evidence.  All that Dr Trevithick has, in relation to material that supports him, is his own note, thereby giving it no special quality or attraction.

McHUGH J:   Except that it was a contemporaneous note.  It was unlike the witnesses from your side, who were giving evidence of their recollection of events five years later.

KIRBY J:   Yes, but he is not a detective.

MR WHEELAHAN:   No, and it was a collegiate view, you see, your Honour.  What happened was that Dr Trevithick said that over the space of an hour and a half he spoke to the plaintiff, then he spoke to four young men who were at the hospital, interested in the fate of the applicant, and we put to him – and it seemed to be almost inescapable – that this was some sort of collegiate or consensus view that he had gleaned from his various inquiries, on the busiest night of his life, and he set it down in a note in the hospital records.

McHUGH J:   But the judge said he accepted that he had a clear recollection of what he said.

MR WHEELAHAN:   Of what was said.

McHUGH J:   What are trial judges to do, Mr Wheelahan?  They see witnesses and they prefer one to the other and then you have intermediate courts of appeal setting aside.  We might as well have trial by transcript.

KIRBY J:   Five witnesses to the contrary.

MR WHEELAHAN:   Plus the plaintiff, all of whom he regarded as credible.

McHUGH J:   It would not matter if there were seven bishops who said the same thing.  The judge saw them.  He preferred the evidence of the doctor.

MR WHEELAHAN:   But, your Honour, he never articulated why that was so.

McHUGH J:   I just cannot understand this.

KIRBY J:   Get back onto your strong ground.  Where did Justice Newman say that he believed the five?

MR WHEELAHAN:   The five, your Honour, at page 16:

The evidence called by the plaintiff as to the events surrounding him entering the water is of such nature that in the absence of any evidence called on behalf of the defendant I would have come to the conclusion that the plaintiff had established his case that he had either tripped on the raised board at the eastern edge of the jetty or was pushed or jostled by those surrounding him or indeed a combination of both factors and thus he would be entitled to have the matter determined on that factual finding.

McHUGH J:   Yes, I know.  That is why I asked you where was the passage that supported your proposition about them being honest and credible witnesses.

KIRBY J:   Justice McHugh wants the Abalos formula.

CALLINAN J:   Let me just say something.  I will not treat a judge’s verdict as a jury verdict, and I think there has been a bad tendency over many years for that to happen.  I adhere to what I said in Fox v Percy. 

MR WHEELAHAN:   Your Honours, what Mr Justice Foster said, in his analysis – I notice the time, but that has never troubled me before.  Why should today be different?

McHUGH J:   Except I am presiding.  I might cut you off in mid‑sentence.

MR WHEELAHAN:   Well, if you turn off the microphone, your Honour, there will be serious trouble.  Your Honour, may I make just one more submission ‑ ‑ ‑

CALLINAN J:   For whom?

MR WHEELAHAN:   Anyone who interferes with the smooth flow of these submissions, your Honour.  I will be but a moment.  At page 81, line 22 – this deals with you, Mr Justice McHugh, with respect:

Moreover, even if it be accepted in full, the important questions still remains, what weight should be attributed to an admission against interest given by a person, in the condition and position of the appellant, at the time when the admission was made.  As I have

already indicated, it is no more than one piece of evidence to be weighed with all the other evidence in the case.

May it please the Court.

McHUGH J:   Yes, Mr Glissan.

KIRBY J:   Can I just ask you, in your No 1 special leave point, you say, “To what extent can the Court of Appeal fetter a re‑trial with a partial finding of fact”.  Is that a power question?  Are you raising the power?

MR GLISSAN:   No, it is not a power question.  It is a judicial discretion question, your Honour.  There is clear plenary power in section 75A.  Your Honour dealt with it in a very brief sort of way in your Honour’s judgment in Earthline, where your Honour touched on – I think the majority in Earthline also just touched on – how section 75A reads ‑ ‑ ‑

KIRBY J:   I am just thinking back.  It is not at all uncommon for you to send a case back to be retried on a basis that liability is established and so on, but I do not remember ‑ ‑ ‑

MR GLISSAN:   Not at all, but this is some sort of appalling halfway house that fetters the defendants and prevents them agitating an issue that bears on liability ‑ ‑ ‑

KIRBY J:   Except that Mr Wheelahan says it was A or B and you fought that out.  They, to give relief, had to resolve it and they resolved it in favour of B.

MR GLISSAN:   Your Honour, I have made my submissions in relation to that.  We would respectfully say that Mr Wheelahan’s submissions really make clear why, if it goes back, it has to go back for a full retrial on all issues, because adopting, with respect, what the Court said in Abalos and Devries and that entire line of authority, this is precisely the sort of issue where ‑ ‑ ‑

KIRBY J:   If you get special leave, do we have to give a separate grant in relation to the costs question?

MR GLISSAN:   I would submit not.  We would ask your Honour to give a grant in relation to both the costs issue ‑ ‑ ‑

KIRBY J:   I suppose it is theoretically possible that you could lose the appeal on the fettering, as you put it, but that this Court might disturb the exercise of the costs discretion.  It is very unlikely, though.

MR GLISSAN:   Very unlikely, but I said that in the submissions that I made primarily, your Honour.  The last thing I want to say by way of reply relates to reply.  There was no submission in reply in relation to this issue of a retrial on all grounds by Mr Hislop.  I am reminded by Mr Garling that the maxim of the law, since the time of St Thomas More, has been that silence is consent.

KIRBY J:   Have you got other authority for that? 

McHUGH J:   That is not the common law view.  The common law of contract takes a different view.

MR GLISSAN:   Indeed.  Unfortunately, this is not a contract case.

KIRBY J:   What do you say about that passage on page 20 that was pointed to, Mr Hislop’s: 

For all of those reasons we submit his Honour’s conclusion was wrong and that this Court would come to the contrary conclusion in that regard.

MR GLISSAN:   At that point he was making the submission that there should be a reversal of the verdict, that he was entitled to a verdict in favour of the plaintiff on that basis.  He failed on that and his concession was that there had to be a true retrial on all issues, including that issue. 

McHUGH J:   Yes, thank you, Mr Glissan.  The Court will adjourn briefly to consider this matter. 

AT 10.42 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.50 AM:

McHUGH J:   In the matter of The Waterways Authority v Fitzgibbon, there will be a grant of special leave. 

AT 10.50 AM THE MATTER WAS CONCLUDED