Whisprun Pty Limited (fomerly Northwest Exports Pty Limited v Dixon

[2002] HCATrans 216

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S243 of 2001

B e t w e e n -

WHISPRUN PTY LIMITED (formerly NORTHWEST EXPORTS PTY LIMITED)

Applicant

and

SONYA LEA DIXON

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 31 MAY 2002, AT 10.48 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with MS S.E. PRITCHARD for the applicant.  (instructed by Hicksons Lawyers)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR K.J. RYAN, for the respondent.  (instructed by Walker Kissane & Plummer)

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, this is a case about what the Court of Appeal should or should not have done in relation to findings of fact in a personal injuries case.  In our submission, what the Court of Appeal did was illegitimately to stray in a way which appears not entirely to have been anticipated by all the authorities which may now be marshalled in general terms against that course.

What was done can be highlighted as to what I will call its subtlety by the way in which the exercise was introduced in the reasons of Justice Heydon at page 77 of the application book.  At that point, bearing in mind that my learned friend was in the appeal below, your Honours may not be surprised to find that the subtlety was at Bar as well on the Bench.  At line 17 in the middle of paragraph 29 as to submissions about extremely overtly credibility‑based findings, Justice Heydon said of my learned friend’s argument, “On occasion the submissions became subliminal.”

This is a case where there was such testimonial demeanour‑based concessions against interest, clear demonstration of misleading evidence on a number of matters on a gamut of subject matters which made it difficult to see things as merely accidental, where the trial judge had formed an extremely dim view of the plaintiff’s credibility generally.  At the heart of the case was a matter about which, if not entirely, certainly mostly and entirely as so far as the trial was run, the issue about the plaintiff’s present condition depended upon what were called subjective pieces of evidence.

We need, in our submission, at that point to identify that in paragraph 29 at page 77 of the application book Justice Heydon noted that there was not what might be called an Earthline or Abalos assault on those credibility‑based findings.

The plaintiff did not in terms assault them by saying that they should never have been made.  Nor did the plaintiff’s counsel deny that she had been shown in cross‑examination to have been wrong in some respects, and to have gilded the lily.  The plaintiff’s submissions were largely not explicit.

In our submission, the cue is taken thereafter for his Honour to have determined the appeal on bases which were certainly not explicit:  (a) in the way the case was conducted below; and (b) in the way the case was explicitly conducted in the Court of Appeal.

GLEESON CJ:   Then they ended up ordering a new trial, is that right?

MR WALKER:   They ended up ordering a new trial on the basis that there had been a miscarriage.  If your Honours go to page 109, paragraph 74, line 25:

it appears that some substantial wrong or miscarriage has taken place in that the plaintiff’s claim has not been properly considered.

The notion of properly considering a claim has nothing, in our respectful submission, to do with an appellate judge discovering that there was another and better way for counsel to have run the case below.

GLEESON CJ:   I am just wondering if that is a material consideration for us where we are being invited to intervene in a case that does not raise any question of general principle except the approach that an intermediate appellate court takes.  What has happened is there is going to be a new trial.

MR WALKER:   Yes, your Honour.  A new trial, in our submission, is, on any view of it, an imposition to all parties, not just to the claiming party.

GLEESON CJ:   Maybe it is not a proper consideration for us to be taking into account.

MR WALKER:   The jurisprudence of this Court would not suggest that a new trial is ever seen as something to be considered lightly.  Indeed, the reverse, in our submission, would emerge from most of the cases, that ordering a new trial is a large thing.  It may not be as large as the miscarriage which requires it which is, after all, why it is ordered when it is ordered, but it is nonetheless a large thing.  As to the way in which the trial was conducted and as to the way in which Justice Heydon determined that there ought to be appellate interference, may I take your Honours to a critical passage on the same page and the next page, 109, paragraph 76:

No medical expert was cross-examined at the trial.  It seems clear that the trial judge was not taken to the medical reports in any detail.

That is highly significant, bearing in mind that his Honour goes to the medical reports in great detail, in detail redolent of counsel’s submission, but redolent in this case of a phantom counsel submission, one which had never been put at trial.  The parties chose to conduct themselves in such a way that the trial of the plaintiff’s credibility as to what she had experienced and as to what her present and past symptoms were was the yardstick of whether the assumptions made by her doctors on the basis of which there had been opinions expressed were made out.  When one sees it in that fashion, in our submission, the other limb of Justice Heydon’s approach set out in full in that paragraph 76 up to the top of page 110 is knocked away.  At the foot of that paragraph 76, lines 15 and following, what his Honour hypothesised should have happened.  That comes from line 7 about what seems strange about a trial in which counsel had agreed to tender reports without calling the authors so as to concentrate on the patient, a trial that took six days in any event, as your Honours will be aware.

At line 15 what his Honour supposes is that medical experts should be called so as to be:

in a position to comment on a range of possible findings of primary fact –

His Honour is there referring to calling the experts, presumably before, if one is talking about a range - better, no doubt, after - the plaintiff has been called so as to give opinions based upon possible findings of fact.  Why that would be useful if the finding of fact which was made in this case was made, namely she is lying, is not clear.

McHUGH J:   His Honour seemed to take the view that she was probably suffering from Q fever.  That seems to be ‑ ‑ ‑

MR WALKER:   No, your Honour, post-Q.

McHUGH J:   Yes, but ‑ ‑ ‑

MR WALKER:   There is no doubt that she had got Q fever.  Liability was admitted.

McHUGH J:   Yes, I know, but, for instance, at page 80 where his Honour discusses the first of the matters which he says should have been discussed, the question of weight loss, the first matter, I would have thought was simply explicable by the illness which she undoubtedly has.

MR WALKER:   Many of these matters are, in the language of medical science, unspecific, no doubt consistent with a condition but consistent with so many other conditions.

McHUGH J:   And the muscle and abdominal tenderness would seem more consistent with Q fever than with fatigue and ‑ ‑ ‑

MR WALKER:   And ultimately depends upon reports of pain at the time.  “Does this hurt?”  Poke.  Sometimes there will be objectivity; sometimes there will be subjectivity.

McHUGH J:   It was common ground, was it not, in the Court of Appeal that she was suffering from Q fever, what, till February 1995?

MR WALKER:   She had had acute Q fever.  There was an issue raised for the first time in the Court of Appeal, but not effectively so, about what she might have had thereafter.  It seemed to turn on the use of the present participle, “resolving”, as opposed to the past participle, “resolved”.  It was of no moment and his Honour does not use it.  This became the post‑Q syndrome case.  In our submission, an error is found just before his Honour turns to that exercise.  That exercise in itself could not possibly be in the realm of incontrovertible fact.

McHUGH J:   Are you talking about page 79?

MR WALKER:   The top of 79.  That first line, in our submission, is misleading into error.  His Honour goes off the rails at that point.  If one then abandons the assumption that all the strictures which the trial judge made of the plaintiff are sound - the strictures made by the trial judge of the plaintiff are, “I’ve seen her, I’ve heard her.  She’s told me about her condition.  She’s answered to challenges that show objectively that her self‑description is misleading and I find her unreliable”.  There is no assumption involved for a Court of Appeal in paying faithful regard to the strictures based upon credibility not subject of any explicit, subject only to what are called subliminal submissions, never directly assaulting in accordance with principle those credibility findings.  The Court of Appeal cannot, faithful to its duty, describe that as an assumption.  The trial ends with a judgment which is final until error is shown.  It involves nothing provisional, nothing hypothetical and certainly nothing assumed.  It is a fact of the administration of justice that this trial judge, the only judge in this case to have seen this plaintiff cross‑examined, described her evidence as at core unreliable.

There is one matter that, in answer to your Honour the Chief Justice, spills out from the way in which Justice Heydon dealt with the matter that may involve a matter of general principle not entirely covered by the many authorities that can be marshalled against the way in which generally the Court of Appeal comported itself in this case.

McHUGH J:   I had difficulty in understanding what the Court of Appeal was saying in paragraphs 34 and 35.  I did not see the trial judge as making a statement they seem to attribute to him.

MR WALKER:   No.  It may be that his Honour is using the word “symptom” in one way different from the way the medical profession uses it:  symptoms are subjective, signs are objective.  That may only indicate the error when an appellate court goes into a fine‑grained factual analysis of a kind never assayed at trial and really not fairly before the Court of Appeal.  The point that may transcend the individual injustice of this case which, in our submission, is quite sufficient in itself for a grant of special leave is that this was a case where experienced counsel ran it by the efficient way of medical opinions which have opinion, factual observation and assumed facts.  That is what histories are:  assumed facts.  His Honour seems for the first time, that is, it was not done at trial, to have seen that there was some competition as to credibility between what was recorded and the doctors noticed to what the plaintiff had said out of court and what the plaintiff actually said in court.  In court where the contest was, is she telling the truth?

In our submission, nothing would be more efficient forensically than to test whether the plaintiff is telling the truth by having her tell her story in court and cross‑examine.  Nothing would be less efficient than to call doctors to comment upon whether or not they had found her reliable, a matter to which Justice Heydon devotes quite some attention.  In our submission, leaving aside admissibility problems, there is a powerful factor here about the efficiency of trial run in a way which streamlines and cuts to the real issue which has been given not only no weight by his Honour but which has attracted from him the opprobrious epithet “strange” to describe what was a perfectly ordinary way for things to run.  Coupled with the fact that, not surprisingly in light of section 60 of the Evidence Act, his Honour Justice Heydon has said in paragraph 51 at the top of page 89:

As the law presently stands, the history given . . . are evidence of the truth of their contents –

in our submission, a general point emerges.

The plaintiff was cross-examined and very effectively so, resulting in findings credibility based, which were never directly assaulted in accordance with principle, as to the truth of what she narrated.  Those narrations were critical because, unless they coincided with the narrations to doctors, then the doctors’ opinions were based upon irrelevant assumed facts and were themselves irrelevant, however cogent in their reasoning.  For those reasons it was correct for the trial judge and, with respect to trial counsel, it was correct for trial counsel to regard the real issue in the case as to whether she is telling the truth, then to compare what emerges from the fact finding about that with the assumed facts upon the basis of which various physicians had opined as to her condition and its cause.

What his Honour has done at page 89, contrary to the basis upon which the case was tried on our understanding of it and certainly in the absence of any argument about this in the Court of Appeal, is to suggest that there was some relevant injustice requiring appellate interference because the plaintiff was not cross‑examined to suggest that the history was wrong, and the trial judge made no finding that that part of it was wrong.  Of course, the trial judge found that she was unreliable as to the core matters and that if she was unreliable before him, there was no reason to believe that it mattered whether the physicians had regarded her as reliable when they saw her.  His Honour, as your Honours will recall, actually suggests that doctors’ commissions by defendants are not shy in making observations contrary to the credibility of patients, a generalisation which should have played no part in his Honour’s reasons.

McHUGH J:   Mr Walker, I read the transcript of argument in the Court of Appeal, and admittedly I read it very quickly, but almost all of the points that the learned judge in the Court of Appeal made were raised by Mr Jackson, were they not?

MR WALKER:   Yes.

McHUGH J:   Is that right?

MR WALKER:   That is as I understand it too, your Honour.  Could I complete the matter at the top of page 89 thus.  His Honour appears to be saying that contrary to what your Honour the Chief Justice said in HG, that if a medical report is in the interests of forensic efficiency tendered without requiring the doctor to be called, that upon its tender – and I suppose this would apply whether the doctor was called or not – that which must be of its nature assumptions in the medical opinion become factual.  That is, they cease to have their character of assumptions because they are tendered as assumptions.

In our submission, that is a paradox which needs to be exploded by this Court.  It cannot be the case that if HG be right – and, with great respect, it must be and ought to have been treated by the Court of Appeal as right, and his Honour seems to have recognised that in paragraph 53 on the same page – that upon a medical report being in evidence and the doctor says, “The patient tells me X”, and that proves the fact that she said X, the opinion then proceeds on the basis of assuming that to be correct unless “X” of course is falsified by the doctor by objective test, it cannot be the case that section 60 works the magic.

But proving it to have been the doctor’s assumption also proves the fact.  If the law be that, it certainly cannot be the case that it is appropriate

for a Court of Appeal, observing experienced counsel efficiently to run the case by getting to the heart of the matter – forget whether it is an assumption, forget what section 60 works by way of magic on its evidentiary status, cut to the chase and see whether the plaintiff is to be believed in what she tells the court necessary as the foundation for those medical opinions.

In our submission, for a Court of Appeal then to have said, “We prefer what can be gathered from the untested narrations of history and medical reports to what his Honour found by unassaulted matters not directly criticised according to principle in the judge’s credibility‑based findings”, in our submission, the case is an apt vehicle to promulgate a specific matter not yet found in the case law concerning the misuse of the transcript and exhibits of expert opinion when what has happened has been an efficient laudable forensic course of restricting the time‑consuming evidentiary exercise to whether the patient is to be believed or not in court.  May it please your Honours.

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I say first of all, if one goes to the trial judge’s reasons at page 6, one will see that he is dealing in paragraph 19 with the oral evidence that was given.  He said there that:

When . . . the plaintiff gave evidence which was consistent with the history . . . she had given to medical practitioners.

So those matters were given in evidence by her.  Then at the bottom of page 5 your Honours will see that he referred to the fact that she had presented to medical practitioners “a consistent history”.

So far as what took place in the Court of Appeal is concerned – I am sorry, that must have sounded subliminal to them.  I had not thought I was quite so obscure.  Could I just say that if one goes to page 20, one will see the notice of appeal to that court.  There were two grounds of appeal that indicated there was to be an attack on a credibility finding.  The first is ground 2 which could only relate to that topic, because that is the critical finding of the primary judge.  The second is a particular aspect, a specific aspect, which is ground 8 on the next page.  If one then goes to the reasons of the Court of Appeal at page 79, what one sees is that the opening words of paragraph 33 are based on the assumption contained in the preceding paragraph and then one sees when the Court of Appeal deals with it at paragraph 33 that they say:

The first difficulty is that he failed to bear in mind that the plaintiff’s unsatisfactory testimony may have been caused by a genuine syndrome.

It is perfectly clear that that issue was one which was raised in the Court of Appeal.

Could I go to page 24 and it is the passage which goes between lines 20 to 36 where at line 20:

he wasn’t satisfied that she in fact suffered from the symptoms which she recounted to medical practitioners and in‑chief to the Court.

Then your Honours will see the last line of that passage:

I’ll come back to that, if I may, in just a moment because it is the central feature of the case really.

Then one goes to the next page, page 25, lines 20 to 26:

the assessment of the appellant’s credibility was taking place in a context not referred to by the primary judge but a context where impairment of memory was itself a feature of the condition –

I pass over all the rest of that page until the last line:

I mention that by way of introduction because one of the difficulties with which the primary judge was faced, but one to which he didn’t advert –

then your Honours will see the remainder of that paragraph.

Then page 29, line 36, your Honours will see in determining that issue he had to take into account “all the medical evidence”.  Could I mention that in passing, a reference to:

all the medical evidence and the consequence of the condition if she had it on the mental processes.  He is entitled to find that she’s overstating –

and I think it should be “That’s” –

a different thing.

Also on page 31, about line 5 ‑ ‑ ‑

McHUGH J:   I think you have skipped over one of the best passages in your favour, have you not, the one at 30?

MR JACKSON:   Yes, page 30, your Honour, from about line 43 onwards.  I was going to come back to that for another reason, but all I was going to say was those are not all the references to the topic in passing.  The second feature relied on by the Court of Appeal - so that issue is clearly raised, clearly argued.  If one goes to page 79 ‑ ‑ ‑

McHUGH J:   It may be clearly raised, but what is the evidence that the trial judge had failed to bear in mind that her unsatisfactory testimony may have been caused by a genuineness.

MR JACKSON:   Your Honours will see the evidence to which that relates was set out in considerable detail.  It is a passage I skipped over at page 25, lines 25 to 56.  But the short fact is, your Honours, one sees no reference at all to that aspect in the primary judge’s reasons.

McHUGH J:   I know, but this is a new hazard for trial judges if they have to put down every little factor that could possibly affect the testimony of a person.

MR JACKSON:   Your Honour, it was not just that.  This was a very important thing because ‑ ‑ ‑

McHUGH J:   But was it made a point at the trial?  We do not know.

MR JACKSON:   Your Honour, the situation was two things.  The first is if one looks at page 16, paragraph 54, there was a complaint, “that the matters going to credibility were not put to any doctor” both by us.  The second thing was that this was an important point.  I am not in a position to say whether this was specifically mentioned or not, but it was in three of the reports that her condition was affected by her ability to recall things and so on and her mood was affected by the condition.  That was an obvious matter in dealing with the question of credibility.

I was going to go on to the second feature.  I might say, your Honours, this is not a case where the judge just said, “I preferred looking at her in the witness box to someone else”.  This is a case where he went through it in great detail.  The second feature referred to by the Court of Appeal at page 79 at about line 7 on the page was they said:

he placed weight on trivial discrepancies and made misconstructions of the evidence in arriving at his credibility findings.

Your Honours, that is dealt with at considerable length in the Court of Appeal’s reasons.  I will not go to the detail of it there, but one sees that these aspects were – and your Honours will see the reference that was earlier made in the submission to the triviality of some of these matters.

McHUGH J:   What about matters like weight loss?  The Court of Appeal says that one of the factors that the trial judge did not discuss was weight loss, but the real issue was whether or not she was suffering from this chronic fatigue syndrome.  What does that have to do with it?  I mean, it was common ground that she had suffered from Q fever for a considerable period.  One would think that would explain her weight loss.

MR JACKSON:   Your Honour, could I say two things about it.  One is that they describe what one could see from the material.  That was in a context where the court is not itself deciding the ultimate result but deciding the question whether there should be a new trial.

McHUGH J:   I understand that.

MR JACKSON:   In relation to that, they had already dealt with two aspects of the trial judge’s approach which were unsatisfactory.  One was not referring to the mental condition brought about by it, but the other was the matter to which I was about to refer, and that was the triviality of some of the matters that were relied on by the primary judge in arriving at his conclusion and the errors that he made in relation to them.

McHUGH J:   Mr Jackson, having read your argument in the Court of Appeal and having read the judgment of the Court of Appeal, there does not seem to be too much synchronisation between the two of them.  Speaking for myself, I think your argument might have been closer to the issues than the judgment of the Court of Appeal.

MR JACKSON:   Could I say that one sees, if I can just put it this way – and I am indebted to your Honour to a degree.  Could I just say that there is no doubt that many of these matters were dealt with in the oral argument.  I referred, I think, to the passage where I had submitted some of these things were very trivial.  This was taken up by our learned friends at the time.  Your Honours will see, if I could just go to page 50, in the argument of Mr Burbidge, who was then appearing, he deals with all these aspects.  Could I just give your Honours the starting reference for each one.  On page 50 line 10 he deals with the question of the ownership of the house; page 50 line 15 they are riding the horse; 50 line 21, going out to social occasions; 51, 25 he deals with the position about walking around the pool; 51, 43, the ability to walk; 51, 44, going to the races and enjoying the races; 52 line 10 the jet ski; 52, 40, going to the wedding.  So all those matters were the matters that I think it is right to say – we say these are pretty trivial ‑ the judges appeared to agree.  Then the other side tried to support it and their Honours deal with it.

McHUGH J:   I know.  The other side took your bait and dealt with these matters at great length as though they were some great issue.

MR JACKSON:   If one picks up the chalice, it sometimes contains unattractive things.  There is no reason, in our submission, why the Court of Appeal could not say, “We don’t agree”.  One thing that was clear was that reliance was placed by us on the contents of the various medical reports in relation to the core issue, credibility.  The first thing was – I mentioned this a moment ago – it was accepted at trial that she had made the relevant statements.  Your Honours will see that at pages 4, 5 and 6.  On appeal the consistency of the complaints was relied on.  Your Honours will see that at page 29, about line 34, 35:

In determining that issue –

the reliability –

he had to take into account . . . all the medical evidence –

Then at page 34, about line 36:

As the judge said at p 52 para 17, she presented to the medical practitioner with the one exception –

which does not matter for present purposes –

a consistent history.  The only exception was the date at which she had the first symptoms.

Then if one goes to the same page, about line 54:

you’ve got a situation where you’ve got a woman, who as the judge finds, with one trivial exception, gives out of court evidence, gives statements as to her condition which are absolutely consistent over a period of years.

And going through to the end of that paragraph.

The issue was raised with the respondent.  Your Honours will see at page 43, about line 34, Justice Davies raises the issue.  That goes through to about line 51.  On the next page, 44, lines 15 through to 52, where ‑ ‑ ‑

McHUGH J:   Mr Jackson, does not the case seem to come down to this, that a trial judge who sees a witness and puts various matters which he says show the witness is of no credibility is to have his verdict set aside unless he mentions in his judgment all the matters, or at least the significant matters, that might affect her credibility that are favourable to her?

MR JACKSON:   Your Honour, one takes cases as one finds them individually, and this was a particular case.  In relation to the particular case, what the judge did was to adopt a view which, in our submission, was simplistic in the sense that, if one looked at his reasons, one saw that he had, first of all, identified a number of matters which on any view – and the Court of Appeal’s reasoning on this is really compelling ‑ ‑ ‑

McHUGH J:   Some of the matters are not simplistic.  She says she cannot go out of the house.  She is at a wedding for nine and a half hours.  She says she cannot go out and she is at a race meeting on two occasions for several hours.  She says she does not drink, then she has to concede she is drinking.  The trial judge says, “I don’t believe her.  A, B, C, D, E”.  The Court of Appeal says, “We’ll set this aside because you don’t mention in your judgment J and K that favour her”.  That is a new hazard for trial judges.

MR JACKSON:   What I was going to say in response to that if I may was that we did not suggest that the trial judge was not able to take a view that what she had said in some respects was not correct, but the point that we sought and seek to make is this, that the Court of Appeal was correct in saying that if one is going to make a finding of that kind against someone in circumstances where the evidence, uncontested, is that the condition can bring about unreliability in relation to matters of recollection and mood and so on and where there was evidence from her mother, as the judge accepted, that she suffered from these things, that in those circumstances it is very difficult – and that is why I used the word “simplistic”, with respect – just to say, “I saw her there.  I didn’t believe her”, without adverting at all to the fact that the condition brought about this state.  The Court of Appeal was right, in our submission, in saying, “We don’t decide ourselves”, but there is enough there to say that this issue has not been dealt with properly.

That is what I wanted to say about that.  Could I just say one thing in relation to the suggested section 79 issue.  What your Honours will ‑ ‑ ‑

McHUGH J:   The section 60 issue?

MR JACKSON:   I am sorry.  Could I just say that in this particular case it really was not suggested that there was any relevant issue, if I can put it that way.  Your Honours will have seen in the first place on both sides that the documents were admitted and admitted without any restrictions as to the use to which they might be put.  The second thing was that the evidence she had

given in those was evidence that she also gave in court.  Also, when one came to the position in the Court of Appeal, it was not doubted in the Court of Appeal – and this is at page 44, line 44, by my learned friend’s predecessor, who said:

But the fact that doctors hold an opinion is an important evidentiary matter.  It does not relieve the judge from making the determination which he’s called upon to make himself.

Though it may be an issue of some interest in a future case, it does not really arise in this.

GLEESON CJ:   In this matter there will be a grant of special leave to appeal.

We will adjourn for a short time to reconstitute.

AT 11.23 AM THE MATTER WAS CONCLUDED