Whisprun Pty Limited (Formerly Northwest Exports Pty Limited) v Dixon S216/2002

[2002] HCATrans 572

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S216 of 2002

B e t w e e n -

WHISPRUN PTY LIMITED (Formerly NORTHWEST EXPORTS PTY LIMITED)

Appellant

and

SONYA LEA DIXON

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 NOVEMBER 2002, AT 10.22 AM

(Continued from 6/11/02)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   May it please the Court.  Your Honours, I think I may need, though I have not been able to check the record, to correct an error I made yesterday.  I think I referred yesterday by mistake to the acceptance common ground that the plaintiff had suffered from chronic Q fever infection; that is incorrect.  What I should have said – what I think I meant to say was it is common ground she suffered from acute Q fever infection.  It does not alter anything else I said yesterday.  It was simply misspeaking.

Your Honours, I have tried to consolidate the matters that we rely upon in order to elaborate the argument in the written submissions by approaching it through touching upon those parts of his Honour Justice Heydon’s reasons in relation to the error upon which I had embarked yesterday in seeking to persuade your Honour had been committed.  Your Honours, could I start at 637 of volume 3 of the appeal book, which is paragraph 29 of those reasons.

GUMMOW J:   I hope you are not going to be subliminal.

MR WALKER:   I think the recognised expert at that is sitting to my right, your Honours.  This is a paragraph full of metaphor in itself perhaps:

The overall posture of the plaintiff on appeal in relation to the credit findings was difficult to gauge.  The plaintiff did not in terms assault them –

that is credit findings –

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.  Often they went no further than to offer half-hints at implications which the court ought to make for itself.  On occasion the submissions became subliminal.  Taken by themselves, the arguments just described, so far as they were explicit, do not assist the plaintiff sufficiently to justify ordering a new trial, though if there were a new trial, their full development at that trial might well assist the plaintiff’s cause.  But those arguments are material, taken with other difficulties, in identifying certain weaknesses in the trial judge’s reasoning now to be discussed.

Now, those other difficulties principally include the so-called objective matters upon which I had embarked on yesterday, which I am now going to try to abbreviate.  But, in our submission, in that paragraph serious error is introduced by the observation that the kind of argument on appeal about credit findings, but not frontally assaulting those credit findings, were the sort of things that might avail at a trial, ex hypothesi, at a new trial.  That, of course, is a completely inappropriate similitude in relation to an appropriate appellate attack on a trial judge’s approach.

It also introduces a theme which is then developed in our submission throughout the reasons to which I am going to come in Justice Heydon’s reasons, namely that things may have been done differently at trial.  So they may have been; that is no ground of appeal.

Your Honours, may I, in order to flesh out slightly what is contained in paragraph 29, take your Honours back to the Court of Appeal transcript, this being, as it were, the forensic course set in the intermediate appeal.  The forensic course set at trial is critical in this case, but so to an extent is what was done in the intermediate appeal.  At page 590 in the same volume, volume 3, at about line 43 or so Justice Heydon introduces the question in relation to credibility:

I thought actually the reasoning was laid on a bit thick upon the credibility front but you don’t frontally assault the findings, you rather approach them from the flank.

Then my learned friend at lines 48 and following makes the kind of concession which is recorded by Justice Heydon in the paragraph I have just read.  At the top of page 591:

it’s a case where no doubt if one were simply saying this is a pure credibility case it would be very difficult to take it over and that’s why we say this is a case where a starting point adopted . . . was simply not correct ‑ ‑ ‑

KIRBY J:   Mr Jackson was playing on Justice Heydon’s obviously very modern and scientifically informed approach to credibility.

MR WALKER:   That cannot theoretically be excluded, your Honour, is as far as I can go, I think.

McHUGH J:   It may be junk science.

MR WALKER:   Yes.

KIRBY J:   It would not be like Justice Heydon.

MR WALKER:   Your Honours, perhaps I should just go to page 591 line 9 where his Honour points out that there were not positive findings being sought.  This, after all, was a new trial.  His Honour tried to capture what he understood the argument to be.

McHUGH J:   Could I just stop you to ask you about the important point about Part 51 rule 23(1).  The theory seems to be that if there is a substantial wrong or miscarriage, that that entitles you to a new trial, but those words in rule (d) seem to assume that there is some other ground which entitles you to a new trial but you are only entitled to that if that other ground amounted to a substantial wrong or miscarriage of justice.

MR WALKER:   Yes.  It is negatively framed and by ‑ ‑ ‑

McHUGH J:   What is the other ground?  The other ground seems to be that it is a substantial – a court can ‑ ‑ ‑

MR WALKER:   “Case not properly considered” is how it comes out in the end.  I am going to take your Honours through the sequence of reasoning in Justice Heydon’s judgment.  It appears to be, “case not properly considered”.  In our submission, that is, after all, an expression which could probably describe nearly every ground of appeal attributable to error on the part of a judge.  Whether that really constitutes a recognisable discrete ground of a kind comparable with the other matters in (a), (b) and (c) in the rule may be doubted.

GUMMOW J:   Now (a), (b) and (c) in the rule were there when the Act was enacted in 1970.

MR WALKER:   Yes.

GUMMOW J:   At some stage later (d) has come in.  I do not know when at the moment.

MR WALKER:   I cannot assist your Honour on that.

GUMMOW J:   This phrase “unless it appears” initially was so set out as to govern all of (a), (b) and (c).  Does it now govern all of (a), (b), (c) and (d)?

MR WALKER:   Your Honour, my best answer to that is I think that is the understanding of the profession.

McHUGH J:   That would be consistent with the old Order 22, rule 15, of the Supreme Court Rules which was in similar form but I cannot recollect whether it referred to it on any other ground, but certainly you could not get a new trial.

MR WALKER:   Yes.  The requirement that there be something in the nature of substantial wrong or miscarriage was not understood to have been removed from (a), (b) and (c) by the typography ‑ ‑ ‑

GUMMOW J:   By putting in (d).

MR WALKER:   Or other aspect of (d).

GUMMOW J:   Yes.  At the moment it seems to run on, does it not?

MR WALKER:   Yes.

McHUGH J:   This was discussed by Justice Windeyer, I think, probably in Balenzuela v De Gail and some of those cases and he pointed out that at common law once you proved a misdirection or non‑direction ‑ ‑ ‑

MR WALKER:   Then the great evil followed.

McHUGH J:   It followed unless ‑ the onus was on the defendant at common law to show there had been no substantial wrong.

MR WALKER:   To show, in effect, it did not matter.

McHUGH J:   Yes, it did not matter, whereas under the judicature system the onus is on the plaintiff or the appellant to show that it did matter.

MR WALKER:   That it mattered, yes.

I think from the record of the Court of Appeal there is no answer to your Honour Justice McHugh which would indicate that the question of where does one go to find what other grounds are and does this amount to –the rule could not possibly amount to a positive grant of, as it were, a new jurisprudential ground for upsetting a trial.  There is no discussion.  There was no argument as we read it in the court below.

At page 591, line 9, it is pointed out that Justice Heydon tries to ascertain that my friend was merely saying that the trial miscarried, there was not a proper trial because appropriate attention was not given to all the factors that bore on certain issues.  Now those issues are not particularly germane to what I am putting now but one sees the kind of language which was in play between Bench and Bar below when it is, in our submission, extremely general and worlds away from a usual credibility attack of what might now be called an Abalos or Earthline kind.

GLEESON CJ:   But that is consistent with the way Mr Jackson, perhaps with some encouragement, put his argument a little earlier up on page 590 in the passage you referred us to, if you look at lines 15 and 20 on page 590. 

MR WALKER:   Yes, “took a particular view” – I do not think my friend was particularly criticising that – “in doing so overlooked relevant parts of it”.  Well, it turns out that the overlooked parts – this is not a failure to give reasons attack, at all.  This is not a “did not take into account critical evidence” argument.  This seems to be of a different kind and it seems to turn upon witnesses not called, experts not called, by the plaintiff’s choice.  At 599, again in the argument, just above line 35 or so, my learned friend referred to the kind of circumstance, forensic circumstance, upon which I opened.  He said:

special grounds do exist and they consist of first the misapprehension by the judge on what evidence was there, secondly the misapprehension of what was sought to be conveyed by Professor Boughton in his report.  The third being the fact that those errors can easily occur in circumstances where the parties no doubt seek to save time and expense by tendering medical reports without calling the doctors. 

Now, “parties” is in the plural, but it is the plaintiff who starts.

Which creates the possibility that there will be underlying factual matters which have been the subject of dispute and never put to the judges. 

Now, that may be a mistranscription, but whether they are the subject of dispute or not, they have not been put in dispute in the recognised way:  “I have called the witness in order to be cross‑examined”.  Page 600, about line 18 or so, there is then a reference to the fresh evidence application, with which I will deal very briefly today.  My friend frankly puts it this way: 

If it be that the situation is where an expert witness sees the reasons for judgment –

this comes after judgment –

and says that’s not what I meant at all –

and in this case, of course, it is an expert who was not called, by forensic choice on behalf of the plaintiff –

it’s a pity that was what was conveyed but it’s not what I meant.  A question which arises then is is it better to have litigation come to an end wrongly or is it better to have litigation to go on and be decided properly. 

In our submission, that is not really the dichotomy which informs the authorities in this Court concerning the balance between finality in litigation and the achievement of justice.  One of the guiding principles upon which we have addressed in our written submissions with authorities – about which no doubt has ever been expressed in this Court and in other courts, including the Court of Appeal in New South Wales – is that, by and large, subject to distinctly articulated exceptions, one is bound by the way one’s case was conducted. 

At the same page, one of those distinctly articulated exceptions is touched upon, lines 33 and following.  At about line 38 there is a mistranscribed reference to the well‑known criminal case of Birks where your Honour the Chief Justice in the Court of Criminal Appeal set out both the exceptional nature and the rather grave circumstances which would give rise in the criminal jurisprudence to an appeal being allowed notwithstanding, indeed almost because of, the way the case was run below.  It is summarised, harshly, at least, at the Sydney Bar as being the ground of incompetent counsel.

That is not this case.  Nothing of that civil kind was run in this case.  The passage of discussion by Justice Heydon ‑ it starts at 600, line 33 and goes over to 601 about line 15 ‑ is, in our submission, a passage that shows that his Honour was approaching this matter, as his reasons later turn out, guided by submissions that make it clear that this was not going to be an Earthline‑style attack, this was not going to be a “failure to give reasons” attack and this was certainly not going to be an “incompetence of counsel” attack.

GUMMOW J:   Is a question being asked of Mr Jackson at 600 from line 31 to 601, line 16?

MR WALKER:   No, I think there is an invitation to respond to comments by his Honour – perhaps this invitation should be described as subliminal – as to, one, the way his Honour understood Mr Jackson to be putting the case, and, two, what his Honour saw provisionally was the nature or character of that kind of case, starting off with the comment that it was very radical and leading to the either self-praising or self-deprecating comment at line 20 on page 601 by his Honour that the Court of Appeal was: 

a conservative constricted ‑ ‑ ‑

KIRBY J:   Self‑deprecating, you say.  Where is that?

MR WALKER:   Either self‑praising or self‑deprecating, I do not choose, your Honour – with that:

conservative constricted niggardly sort of court, we’re not radical.  It’s wrong to be so.

CALLINAN J:   Where is that reference?  I missed that.

MR WALKER:   That is at page 601, line 20 and following, your Honour.

GUMMOW J:   This seems to be a case of submissions where counsel occasionally interrupted the Bench.

MR WALKER:   Interrupted, yes.

McHUGH J:   Yes, like Justice Starke is supposed to have said that ‑ ‑ ‑

MR WALKER:   “The case proceeded for three days with occasional interruptions from counsel.”

McHUGH J:   Yes.

MR WALKER:   I do not think it went quite that long.  Your Honours, back to the reasons, then.  If I can try to march quickly through it.  At 637, paragraph 30, his Honour point out:

The essence of the trial judge’s reasoning was to conclude that once the plaintiff’s credit and her reliability was damaged in the ways she set out, no further inquiry was called for.

He then referred to the nature of some of that damage and at 638, still in paragraph 30 but in the last sentence, his Honour said:

He did –

that is the trial judge ‑

however, say in a global way that he was not satisfied “that the plaintiff has in fact suffered from the symptoms which she recounted to medical practitioners and in chief to this Court.”

Quite so.  That is why it was an efficient, simple way for the case to be conducted.  Call the plaintiff, see whether what she says in accordance with ordinary principle sufficiently accords with the give and take that is permitted with the assumption set out by the clinicians who had either treated or examined her and then, and only then, having made that decision, go on to consider whether or not those opinions assisted her case.

The first stage was the stage at which the plaintiff failed, and there is no criticism that can fairly be levelled against the trial judge, because he said:

He did, however, say in a global way that he was not satisfied “that the plaintiff has in fact suffered from the symptoms –

That is not to be taken as a criticism of a failure to give reasons in this case.  None of that jurisprudence is cited, none of that argument seems to be put, and it is not fair to the trial judge’s reasons.  Your Honours have seen them.  They include matters of detail.  The “global way” is in fact simply a summary in conclusion. 

At paragraph 32 on the same page, 638, at about line 39 or so, there are three errors that his Honour identifies supposedly in the trial judge’s approach.  The first is something which is difficult to justify from the record.  Whether my friend will essay it is hard to know from the exchange of written submissions.  His Honour seems to think that:

a conclusion about the plaintiff’s condition could only rest entirely on her subjective symptoms was wrong.

It seems to be the supposed error is that there was something other than truly subjective symptoms.  In relation to fatigue and lassitude and the like, what one has been able to do, social activities, et cetera, that you have been able to engage in, it is difficult to know exactly what his Honour meant by saying that the reference to subjective symptoms was wrong.

The second error is supposed to be that:

he failed to make any findings about the existence of symptoms which were observed by the medical experts for themselves and which they took into account.

It is to be remembered that no medical expert was called by the plaintiff.  It is to be remembered that the reports were not tendered as if they contained in their narration of history evidence of the truth of those histories.  That is why there is no Evidence Act point in this case.  It is to be remembered that his Honour did make detailed and global findings about the existence of symptoms which has been recited by Justice Heydon at line 9 and 10 on the very same page of the appeal book.

Third, he says:

failed to assess the totality of the medical evidence in the light of the symptoms observed by medical experts which did not depend on the plaintiff’s own history –

and that is what introduced the objective matters, so‑called, upon which I had embarked yesterday. 

Then the passage where I started yesterday picks up and, of course, the error is introduced by the opening words of paragraph 33 at page 639, one should not abandon that assumption without in some orthodox fashion identifying what in recognised appellate jurisprudence was the error of the trial judge in relation to the strictures, as he calls it, made of the plaintiff.  The trial judge saw and heard the plaintiff and there is no direct or, indeed, any real challenge on the propriety of the trial judge being greatly unimpressed by her credibility.

Your Honours, may I then pick up where I was.  I have dealt with weight loss at 640.  I have almost finished dealing with muscle abdominal tenderness at 640.  I can simply add in relation to that the following matter.  Your Honours will see that the quotation at page 641 in paragraph 38 at lines 6 and following reports Dr Sutherland conducting a physical examination, and your Honours see:

extreme muscle tenderness that [the plaintiff] reported on even light palpation of any muscle group –

In other words, it depended upon what she said when poked and prodded.  The doctor in fact did poke and prod in some quite interesting places, including cheeks and temples, and makes the note which would give rise to some scepticism.  The notion that these doctors needed to be called, apparently by the defendant, because it is not proposed by the judge that the trial judge should have done it, apparently by the defendant, in order for there to be – it is not quite sure whether in‑chief or cross‑examination – questions about whether they were sceptical or not, and if not sceptical, why not, about reports of tenderness, is not explained in the reasons, but it seems to be an important part of the reasoning, as we shall see.  At paragraph 39 on 641 ‑ ‑ ‑

McHUGH J:   Was there any liver biopsy done in this case, do you recall?

MR WALKER:   There were quite a few palpations of liver.  There is reference to MRI.  I do not think there was biopsy, but there was reference to other objective diagnostic techniques, but I do not think there is any test results about hepatic problems at all.

McHUGH J:   But tenderness in the area to which Justice Heydon referred would be consistent with enlargement of the liver and spleen which is a common effect of this particular ‑ ‑ ‑

MR WALKER:   It is also, of course, non‑specific.

McHUGH J:   Yes.

MR WALKER:   In other words, it may be a sign of a number of different diseases.

McHUGH J:   Yes.

MR WALKER:   That is why the so‑called clinical diagnosis is important, getting the constellation right and the intensity right and timing right, which is why it was a matter of the judgment very largely based upon history.  So his Honour in paragraph 39 caused:

This objective evidence confirms the plaintiff’s subjective complaints –

What can be seen, of course, is that is precisely the kind of thing which, if the plaintiff wished to run such a case, would have, could have and should have been the subject of evidence.

But the final thing to say about muscle and abdominal tenderness is that in an examination‑in‑chief characterised by what can only be described as generous permission by silence of the future cross‑examiner by not objecting to grossly leading questions, page after page after page of grossly leading questions.  All the more powerfully does it strike one now then that there are no questions about this tenderness in‑chief.

So the plaintiff decided by the way she ran her case not to make a feature of this matter where his Honour Justice Heydon now criticises Justice Newman for having failed to take the matter into account of objective confirmation of a subjective complaint.  In fact, he finds subjective complaint on the basis of reports without attending to the way in which the case was run in‑chief.

Appearance and mood, we do not need to say a great deal about that.  I think the most compendious way to deal with the questions of lassitude, tiredness, fatigue, appearance and the like is to refer to the way in which Justice Newman went through some of the salient matters that emerged as a result of the cross‑examination.  The cross‑examination starts at 91 relevantly, but goes for many pages.  I will not take your Honours to it.  References have been given.

The judgment below at trial, and this really extends between about 465 and 470 – I do not need to take your Honours to that either – suffice as to say that there is nothing objective there in relation to the matter that comes anywhere near an Earthline incontrovertible.  One could add, for example ‑ ‑ ‑

CALLINAN J:   Mr Walker, I may have missed something, but there does not seem to be any reference in the transcript to any agreement about tendering reports, but obviously there was an agreement.  The parties chose, both sides chose ‑ ‑ ‑

MR WALKER:   To tender reports.

CALLINAN J:   ‑ ‑ ‑ to run the case without any oral evidence, either in examination‑in‑chief or cross‑examination, of any expert.

MR WALKER:   Of the doctors, that is right.

KIRBY J:   That is not uncommon, I think.

MR WALKER:   It is not uncommon, and as I opened, it may be extremely efficient from a pragmatic point of view where there is no contest about expertise, no contest about the honesty of the presentation of the opinion.  One finds in it, as a matter of practical experience, that it can be embarrassing and worse if, in fact, the tendered reports simply are ships in the night or conflict badly.  At that point simply going on reports, which I understand is very common, can become, at least at the appellate level, an almost intractable difficulty, but no doubt it is a question of percentages and in terms of pragmatic efficiency, often not calling doctors is perceived, and I would respectfully submit, for good reason, to be, in very many cases, a good idea.

CALLINAN J:   I cannot understand how anybody could have thought in this case that it would have been possible to conduct it on the written materials only.

MR WALKER:   With respect, yes.  As soon as it was clear ‑ ‑ ‑

CALLINAN J:   But even on the pleadings.

MR WALKER:   Quite, as soon as it was clear, as it was from the pleadings, and as it must have been before the first day of the hearing, that this was a case when there was going to be a challenge to whether or not the histories given were correct, were true, were honest even, as soon as that appeared, the need to do the careful tally of what the plaintiff’s evidence was going to be and what various doctors whose opinions supported her case assumed it to be, assumed her history to be, would have been elementary.

But I do stress, your Honour, we do not know here everything that was in counsel’s briefs and we do not know what caused these decisions to be made in this way, but we do know from the course taken in the Court of Appeal that no civil equivalent of a Birks’ Case argument was run.  No attack was made on the choices made, presumably by counsel, but for all we know, after careful consultation with the plaintiff.

So, although, with great respect, your Honour’s comment is entirely substantiated, that does not give any colour at all to the appeal being upheld by Justice Heydon in the fashion it was.

CALLINAN J:   Rather the contrary.

MR WALKER:   Rather the contrary, exactly.

CALLINAN J:   That may well be a matter between the respondent and her legal advisers.

MR WALKER:   That is right.

McHUGH J:   In fairness, before one makes comments, this is a trial conducted at Newcastle and the cost of bringing specialists up might have run into thousands of dollars, and one can understand from certain ‑ ‑ ‑

MR WALKER:   Your Honour, I am not making criticisms at all, far from it.

McHUGH J:   No.

MR WALKER:   And there were not criticisms made in the Court of Appeal, but his Honour, as I am going to demonstrate, does make what in effect are quite stringent criticisms, very politely, with respect, and carefully expressed, but they are stringent criticisms and, in my submission, they miss the point because they are excellent reasons, probably none of which are known specifically in this case, many of which spring to mind in the nature of things why it was run as it was.  That makes the choice of which questions to ask in-chief by a plaintiff whose symptomatology is at the heart of a dispute, critical, and it makes it impossible, in our submission, for a successful appellate argument to be based on the fact that the trial judge below did not take into account matters that the plaintiff did not put in‑chief.

At 641 item (d), paragraph 41 and following, is under the heading generally of:

Unreliability in recollection and concentration

Your Honours will recall this all comes under the general rubric of what is called objective evidence, which the medical experts took into account, not discussed by the trial judge.

McHUGH J:   Well I know that yesterday you referred to what I said in Rosenberg v Percival, but I wonder whether that has anything to do, or is applicable in a case like the present where impaired concentration and short‑term memory deficits are symptoms of Q fever debility.

MR WALKER:   All the more reason for evidence to have been called and tested about the nature of the kind of confusion which would be symptomatic as opposed to lying or dissembling.  Take the question, “Do you smoke or drink?”  It would require more than judicial intuition, that is judicial notice, to find that that was the kind of question one might get wrong, to by satirical about it, by reason of the lapses of concentration and the memory loss that is said to be symptomatic of this condition.  Now, similarly, “Do you drive?”  Similarly, “Have you been to Sydney recently?”  “Have you walked in Sydney recently?”  Remember that there were a number of films, not all of them covert, which his Honour very carefully takes into account and which were devastating to the general picture in very plain terms put by the plaintiff to her doctors and to the court in-chief.

It should not be assumed, in our submission, that one can remove all of that from the question of, “Did she suffer these symptoms?”, which is what the court must answer, by simply saying, “Well, she would forget, would she not”, or “She would get confused, would she not?”.  There would need to be evidence about how this phenomenon operates, otherwise, of course, the plaintiff has one of those untestable, circular argument cases, which is the hallmark of complete unreliability.

In fact, in this paragraph 41 on 642, to which I have already drawn attention yesterday, it concludes with his Honour himself saying:

It follows that her unreliability extended to accounts of her pre‑illness and post-illness weight.

So the weight-loss question, which was supposedly objective evidence based on how heavy she said she had been in the past – that was an objective matter that was not taken into account properly – but also, his Honour failed to take into account that she was unreliable about that.  Now, in fact his Honour’s reasons at trial are permeated with accepting that this woman was unreliable.  There was no attempt by the plaintiff to discriminate or to focus on, at trial that is, through appropriate expert evidence, what are the kind of phenomena that one might expect by reason of a mental effect as opposed to outright lying.

Then under the heading at 642(e), paragraphs 42 and following, one has a so‑called impression of sincerity which, in our submission, had it ever been tried below, would have led to lively argument based, no doubt, on sections 55 and 56 of the Evidence Act and ultimately on section 79, no doubt.

GLEESON CJ:   Groucho Marx said that sincerity is a wonderful thing; if you can fake that you have it made.

MR WALKER:   Yes.  His Honour’s comments later suggest that the notion of a conman as one who inspires confidence does not jell with the way he approaches the possibility of plausible lying to a number of people.  Your Honours will have seen that.  That was a question for the trial judge.  Was this somebody who really was capable, as Justice Heydon put it, of fooling a lot of the people for a lot of the time?  The answer his Honour came up with was obviously yes.  Are there such people?  Knowledge of human nature would say yes, there are.  That is quintessentially the kind of issue committed to a trial judge with the command of the whole of the evidence and having seen and heard the plaintiff after the way in which she gave evidence‑in‑chief.

The comment at line 35 in that paragraph is plainly inappropriate.  Nothing follows from Justice Newman’s findings to the effect that “at all times from February 1995 the plaintiff was perfectly healthy”.  That, with respect, is not a finding that one finds.  What one finds rather is that her position was not as she said.  If it was not as she said with the degree of discrepancy that his Honour finds, then there was not the foundation of the demonstrated assumptions necessary to make the medical opinions relevant.

His Honour then goes through some of the tendered written statements about veracity from various doctors, some of which were tendered by the defendant.  One had no reason to doubt her veracity, another noted, “She gave her history without evidence of exaggeration or embellishment.”  That of course, without cross‑examination which doctors are not going to engage in, or evidence corroborative from other people about events that might be tested, goes absolutely nowhere.  It certainly was not admissible evidence of her credibility.  Interestingly, it sits completely contradictorily with what his Honour had just said above in relation to unreliability of recollection.

In our submission, none of that shows unsafety when you have this so‑called objective evidence.  On the one hand, it includes reliability of weight loss; on the other hand, it includes unreliability as to weight loss.  Then on the other hand, it includes doctors saying she is reliable.  In our submission, this does not add up to anything even vaguely approaching miscarriage, mainly because this is all as a result of the way the plaintiff, no doubt guided by appropriate advice, chose to run her case.

At 643, I have already drawn to your Honours’ attention paragraph 43 which, in our submission, is without error for the reasons I put yesterday.  (f) on page 643, in relation to a case run as a post-Q chronic fatigue syndrome allegation, has no place at all in relation to an objective symptom.  (g), paragraphs 45 and following, is about corroboration by her mother.  That is what it refers to.  It starts off by others.  Example was given by her mother in relation to Dr Kendall.  That is not the kind of thing which amounts to a reason to overturn a finding based upon the impression formed by a trial judge having seen and heard the plaintiff giving evidence‑in‑chief and in cross‑examination.  Page 644 has a curious heading:

(h)  Experience of, and studies examined by, medical experts.

This is all done from the written record.  These are people who never became witnesses.  Justice Heydon is essaying an exercise here which, in our submission, goes nowhere in relation to the way the plaintiff had put her case.  The plaintiff’s case was chronic fatigue syndrome, being post‑Q fever.

The evidence that is then looked at over the next three pages or so down to 646 for the time being points out that the phenomenon of post‑Q fever chronic fatigue syndrome may be more common than it had hitherto been thought, leading to the conclusion by his Honour at 646 line 45:

These studies suggest that Professor Boughton’s 10-20% figure was conservative.

Why that would demonstrate any error on the part of the trial judge, bearing in mind that was evidence relied upon by the plaintiff, tendered by way of report without the professor being called.  I do not know whether he was to be cross‑examined by counsel who called him as to whether he was being conservative – does not appear.  That is not appellable error at all.  The trial judge not to have taken into account, in our submission, is an unfair criticism.

Then there is a passage which concludes at 648, starting at 646 and going to 648, where Professor Boughton is engaging in answer involving a controversy between him and Dr Sutherland which was, in any event, determined in the plaintiff’s favour ‑ see the trial judge’s reasons at 465, paragraph 18, to which I do not need to take you.  That, therefore, could not possibly be an appellable error requiring anything in the nature of a retrial.  At the bottom of that quotation at line 33, the Professor said:

It is far more likely than not, that the precipitant was Q.

In other words, that if there was a fatigue syndrome, it was attributable to Q fever.  That does not seem to have been, apart from Dr Sutherland, in issue – see the trial judge’s reasons culminating at paragraph 18.  Then his Honour says:

That last sentence might be right; it might be wrong; but it called for specific treatment at the trial.

Now, this is one of several phrases by his Honour which does not name the actor who should have acted but did not.  But the way the trials are run means that was the plaintiff’s point.  No evidentiary burden had shifted to a defendant, so ‑ ‑ ‑

GUMMOW J:   Sorry, which paragraph are you speaking to?

MR WALKER:   I am in paragraph 50, page 648, lines 36 and 37:

but it called for specific treatment at the trial.

Does your Honour have that?

That last sentence might be right; it might be wrong; but it called for specific treatment at the trial.

Just above line 40 on page 648.

GUMMOW J:   Thank you.

MR WALKER:   Then (i), in our submission, has no place whatever in appellate criticism of a trial judge.  Its gravamen can be gathered.  Paragraph 51, page 648, lines 51 to 52 or thereabouts there is a discrepancy between, and I quote:

the limited evidence given by the plaintiff in chief, was much blander than the vivid and disturbing impression conveyed by the history given to Professor Boughton –

That is about the working conditions.  This is a case about causation.  Did she suffer from that which would have entitled her to damages for great debilitation?  In our submission, that is simply not appellate error that the plaintiff chose to give what his Honour’s chooses to describe as something “blander” evidence than she had given to a doctor.

At the top of 649 is the closest suggestion that contrary to the way in which the parties had run the case, contrary to the way in which the written submissions in this Court by the other side to which I drew attention in opening yesterday, nonetheless, contrary to all of that, his Honour seemed to be giving some status as evidence to the truth of statements to those tendered medical reports histories.  He says:

As the law presently stands, the history given by the plaintiff to Professor Boughton about her workplace conditions, and the similar histories given to others . . . are evidence of the truth of their contents –

That is not explored.  There were no hearsay notices.  There was no hearsay argument.  There was no business record, which would have failed, one would have thought, on one of the most obvious thresholds.  So, of course, there was any never opportunity for 135 or 136 argument to be engaged in.  After all, it is difficult to see why, if the plaintiff has been called and she does touch on a topic, one would need as a matter of efficiency or fairness to get into self‑serving, supposedly consistent statements in the past.  Rather, Justice Heydon says at the end of that paragraph 51:

yet the plaintiff was not cross‑examined to suggest that that history was wrong, and the trial judge made no finding that that part of it was wrong.

But she had given what he himself described as “blander” evidence in‑chief.  No doubt correctly, the cross‑examiner decided in a causation case why ask any questions about what work conditions were like at the abattoirs?  After all, the acute infection was conceded.

Paragraph 52 is, in our submission, also wholly inappropriate in relation to an appellate attack.  It is not to the point that there was at least a 10 to 20 per cent chance of contracting the chronic fatigue syndrome.  There was a prior question:  did you have the symptoms which would be consistent with having contracted it?  Somehow his Honour says that “is a significant step in that direction” of satisfying “the civil standard of proof” as if, as it were, you have gone 20 per cent of the way, you only need another 31 to go.  In our submission, that is not commonsense causal reasoning.  It is certainly not commonsense inferential fact finding.  It was not the way in which the case was run at trial and, in our submission, it is a wholly inappropriate criticism of the trial judge.

So the next heading, preceding paragraph 53, the repetition of the word “objective”, in our submission, is built upon quicksand, indeed.  In paragraph 53, your Honour the Chief Justice is referred to for the issue or question whether the Evidence Act has changed the position of assumptions narrated by experts.  It appears in paragraph 53 that his Honour Justice Heydon is not suggesting that the Evidence Act has changed the matter.  However, that would mean they are only assumptions, of which evidence has to be given, just as his Honour himself pointed out in Makita v Sprowles. 

The next paragraph, however, starts to slide back to the notion of there being some independent evidentiary status of the fact that doctors apparently took these histories seriously, as lending truth to them.  There is, in our submission, an extraordinary locution employed at the foot of page 649 and the top of 650, which is a key to the error below.  “Given the strength”, et cetera, of the medical opinions, “the unanimity of the medical opinions”, et cetera, his Honour then goes on: 

it was incumbent on those conducting the factual inquiry at trial to consider how far the medical opinions could stand if the admissions made by the plaintiff in cross‑examination or the inferences flowing from the various films were taken into account. 

GUMMOW J:   Who are the “they”?  Or the “those”, I should say. 

MR WALKER:   There are, I suppose four or five categories at a trial.  There is the judge; one should safely put that to one side.  There are the legal representatives, the advocates and those instructing on either side; that is two and three.  Then, I suppose, there is the party, and then, I suppose, there are witnesses. 

GUMMOW J:   And what does “incumbent” mean? 

MR WALKER:   “Incumbent” presumably means something in the nature of a duty, failure of which results in a miscarriage.  It is language which obviously leads up to the notion that something has not happened which should have happened.  It is normative language.  In our submission, it is wrong, root and branch.  It is not incumbent on the judge; that is the first thing.  It is not incumbent on witnesses to do other than answer truthfully questions asked of them.  That leaves parties and their legal representatives.  The two can, and should be, in the absence of any Birks‑style argument, assimilated.  There is no difference – party and legal representative. 

That means that those who presented the case for the plaintiff, whether or not they had specific instructions about forensic tactics, they made decisions.  It is impossible to say that it is incumbent on the defendant to conduct some factual inquiry.  No doubt the defendant’s representatives did consider exactly the topic that follows in that sentence.  That is why the cross‑examiner set out to destroy the assumptions, and did – a totally orthodox approach, successfully undertaken.  In our submission, unravelled, the egregious error in that sentence is, in effect, to say that there can be miscarriage without any suggestion that counsel has been incompetent, or that any lawyer has been negligent – there has been a miscarriage when the people whose job it was do not ask questions or tender evidence.  And that does not include defendant’s counsel. 

KIRBY J:   Could you help me with this.  I sat in many, many appeals of this kind, and I do not remember the miscarriage question looming very large.  Normally, if you found error, you set aside and ordered a new trial. 

MR WALKER:   That is right. 

KIRBY J:   Now, why was that so?  Why is miscarriage looming so large in this case? 

MR WALKER:   Because there was no Earthline attack.  Some other category had to be found, and it was found by the negative language in Part 51, rule 23.  That is how I read the record. 

KIRBY J:   There was another case recently where – what was that case, where Justice Heydon ‑ ‑ ‑

MR WALKER:   The new trial, of course, made consideration of the question absolutely critical, but as a negative test.  A new trial was the only appellate relief sought.  I think that is the proper answer to your Honour’s question.  That is why the language of miscarriage enters, because of the rule.  No new trial “unless”. 

KIRBY J:   I am trying to think of another case we had recently, where Justice Heydon found that though he could not agree with the majority, he believed that the case had been so poorly tried in the first place that it required a retrial. 

GUMMOW J:   It may have been Fox v Percy.

McHUGH J:   Fox v Percy. 

KIRBY J:   Which one was it? 

McHUGH J:   Fox v Percy. 

KIRBY J:   Yes, Fox v Percy.  Or was it that? 

GLEESON CJ:   I do not think so. 

KIRBY J:   I must admit that, at the time, I thought it was a ‑ ‑ ‑

MR WALKER:   Your Honours, in our submission, as a matter of principle and fairness, and integrity of the system, arguments of that at least require a demonstrated catalogue of what I will call mishap or error during the running of the case, or emerging, sometimes by omission, in the reasons for judgment.  Otherwise, the appellate jurisdiction is in danger of becoming a question of intuitive concurrence or not. 

McHUGH J:   Well, his Honour’s judgment reads rather like a model answer for an exam for the trial lawyer’s association, really.

MR WALKER:   No, your Honour, the reasons are not model at all.  It is the next part of the paragraph 54, in our submission, would not provide a model for conduct, namely:

that doctors could have been asked why they assumed the symptoms to be as narrated and whether they adhered to their opinions despite the inroads made on the plaintiff’s reliability in cross‑examination.

I do not know whether this is a splitting the case being suggested.  I do not know whether in‑chief it is proposed.  Of course, in‑chief and in re‑examination of experts it is common, usually with one’s heart in one’s mouth, to ask, “And if contrary to the assumption you made in paragraph 3, the plaintiff had been dancing, smoking and drinking rather than prostrate at home, would that make any difference to your opinion?”  Practically always the cross‑examiner has already demonstrated that it would render the opinion utterly beside the point.

Sometimes one has something to work with.  Now, that is orthodox.  That is approaching the matter in a commonsense fashion.  There is nothing, in our submission, of that kind in that last part of paragraph 54, quite apart from the admissibility questions which loomed large and involved more than one question.

At page 652 in the reasons there is another of these expressions which fails, in our submission, to specify who it is who apparently caused this to miscarry, if miscarry it did.  Paragraph 61 last sentence lines 49 and following, having just said that the fact of the large lie was difficult to believe but the trial judge found:

she did perform that task.  That does not by itself invalidate the trial judge’s findings.

Quite so.  Then he goes on:

But in the light of his failure to examine the medical evidence, probably in turn caused by the failure of the parties –

in the plural –

to take him in detail to the medical evidence, his findings must come into question.

That, in our submission, is simply wrong as a matter of appellate review for all the reasons we have put, both in writing and in address.  At page 662 paragraph 64 the first two words are redolent of appellate error, “One reading”  This is the long passage where his Honour deals with what he calls trivially important – only trivial matters of discrepancy in the plaintiff’s evidence, “One reading”, but, of course, that is not good enough to demonstrate error by the trial judge, particularly when it is based upon an overall impression of credibility.

KIRBY J:   I think you are getting down into parsing and analysing his Honour’s words.

MR WALKER:   That is right, but still his Honour can only come up with a conclusion commencing, “One reading”.  Now, that should have indicated no error.

KIRBY J:   That is just a stylistic matter, Mr Walker.

MR WALKER:   Surely you would need to say the only possible, or the only reasonable reading, not “One reading”.  It would have to be the only reasonable one in order for there to be error.

KIRBY J:   It has to be read in its context.

MR WALKER:   Read in context it still is only one reading.  That is why that earlier passage his Honour said, “This might be wrong, this might be right, it’s a matter for retrial”.

GUMMOW J:   It all feeds into paragraph 73, does it not, on page 667?

MR WALKER:   That is where I am tending, yes, your Honour.  At page 667 paragraph 70 line 49 there is a reference again to this question of:

a witness suffering, if her case is sound, from a disease affecting her memory.

That is not something which was sufficiently explored at trial to make that an appropriate appellate overturning.  At page 668 paragraph 72 there is a reference in the last sentence to a particular issue being:

a medical one, and the only medical evidence on it, though not insignificant, is rather general.

That again is a question for the plaintiff’s running of the case and then, finally, in paragraph 73 all the matters are pulled together.  About line 50 or so:

But most concern the failure to deal satisfactorily with the medical evidence.  One aspect of that medical evidence not explicitly taken into account was the fact that the plaintiff’s deficiencies as a witness might themselves be symptoms of the disease she was supposedly suffering from.

No attempt by the plaintiff to do any of that.

GUMMOW J:   This expression “casting doubts” ‑ ‑ ‑

MR WALKER:   This, in our submission, your Honour, is no more than an appellate judge saying, “I do not think I would have decided this case that way.

GUMMOW J:   That is what worries me.

MR WALKER:   That has been said time and time and time again not even to be the beginning of error by a trial judge requiring appellate correction.

GUMMOW J:   Likewise, line 4 on page 669, “is open to question”.

MR WALKER:   Yes, “open to question” at that line 6, I think it is, and then a reference to cross‑examination at line 11:

But it did not necessarily follow from his undoubted success –

the cross‑examiner’s undoubted success ‑

that her claims . . . were to be rejected outright –

It is not a matter of whether it follows necessarily, it is a matter of whether the trial judge could do it and if it is only open to question then that is precisely where the appeal court should hold back.

GUMMOW J:   That leads into a view apparent in paragraph 74.

MR WALKER:   Now, it may be that there is elision between 73 and 74 or else the opening phrase of 74 is intended to capture everything that started from about page 639 with which I started.  In our submission, it rises to this height of saying – see the last words of paragraph 74:

the plaintiff’s claim has not been properly considered.

In our submission, that is simply incorrect in relation to the way in which the trial judge dealt with the issue as advanced and posed by the plaintiff, eagerly embraced by the defendant and decided accordingly. 

Your Honours, there is only one other matter to which I want to turn very quickly.  At the top of page 670 in paragraph 76 his Honour makes reference to the questions of the trial.  He says on line 1:

Those who conducted the first trial and those who will conduct the second are in a much better position to judge how a trial of the plaintiff’s complaints can justly be conducted than this Court is.  However, it does seem strange –

et cetera.  That is the sentence which contains – very politely expressed but, nonetheless, criticism, of something which, in our submission, is not open to criticism unless one really did have access to all of the factors that led to that forensic choice about calling the plaintiff and not calling doctors.  Maybe it does seem strange from this viewpoint.  No doubt it would not have seemed strange if the plaintiff had been believed.

As to the further evidence point, I have very little to add in elaboration of what is in our written submission on the matter. It is significant, in our submission, that his Honour records at the top of page 671 the difficulties lying in the way of the argument put based upon a very expansive or open reading of section 75A. In paragraph 79 there is a reference to a:

considerable power –

that would appear to be an understatement ‑

that no explanation had been given for why –

this further evidence was not on.  In paragraph 80 there is a reference to the possibility of:

a revolutionary effect in practice by opening up the possibility of further evidence going to central questions in litigation which, though vitally significant, could have been tendered at trial.

In our written submissions we refer your Honours to the fact that if, contrary to our submissions, generally, your Honours were to uphold the order for a retrial then any question of further evidence goes away if there is to be simply a remittal in relation to further evidence which should certainly include what I will call the opportunity to answer that further evidence of which we were deprived by the unexplained failure to call this further evidence at trial.  May it please your Honours.

GLEESON CJ:   Thank you, Mr Walker.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I deal first with a couple of matters arising from our learned friend’s submissions.  The first is that this is a case, in our submission, of the general nature – I do not say the facts are exactly the same, of course – referred to by the Court in State Rail Authority v Earthline Constructions 160 ALR 588, and may I ‑ ‑ ‑

KIRBY J:   You know, Mr Jackson, that is one of the most quoted cases in this Court in recent years but the editor of the Commonwealth Law Reports declined to publish it in that series.  Maybe one day ‑ ‑ ‑

MR JACKSON:   Yes, your Honour, and I have made the same suggestion and received the same answer from them.  But, your Honours, what I was going to say was that, if one goes at page 607 paragraph [64] in the reasons of three members of the Court, their Honours say, as Justice Kirby and Callinan point out:

these were matters to which weight was not given . . . The substance of the matter is that there has not yet been a determination of the SRA’s case upon a consideration of the real strength of the body of evidence it presented.  There must be a new trial –

Now, your Honours, the nature of the contentions that were made appear from two further passages in your Honour Justice Callinan’s reasons.  One is at page 636 and there your Honours will see ‑ ‑ ‑

McHUGH J:   What paragraph is it?

MR JACKSON:   Paragraph [155], your Honour.  It is an introductory reference or a concluding reference but I have to take you back to something from it.  Paragraph [155] says:

Accordingly the submissions of the appellant that I summarised earlier have been made out.

Those submissions appear in paragraph [139] at page 630 and what your Honours will see is that it really is the type of case where it is submitted that the approach to the resolution of issues ultimately of credit, have not been correctly adopted, or the correct approach had not been adopted.  I think your Honour Justice McHugh asked what is the nature of the case.  In effect, it is the same broad nature.

GUMMOW J:   Well, if you look at paragraph [139] of Earthline, that gives more specific flavour to what Earthline was about.

MR JACKSON:   I referred your Honour to that a moment ago, but that shows, in effect, the species, the genesis perhaps rather wider than that.

CALLINAN J:   But, Mr Jackson, those affidavits were absolutely critical, if you remember.  They were by, I think, two women who knew all the facts and gave original evidence of them and there was not the slightest cross‑examination at all.

MR JACKSON:   Your Honour, I do not suggest that the cases are the same.  Earthline was a strong case, undoubtedly; a strong case because in neither court below had the court dealt with it in any satisfactory way.

CALLINAN J:   I remember the trial judge criticised one of the deponents in one of the affidavits for no good reason at all.  She was not even cross‑examined.

MR JACKSON:   Yes, well, your Honour, there are some mistakes in this case also.  I am going to come to them in a little while – I was going to say in a moment, perhaps in a little while might be more exact.  Your Honours the second preliminary thing I wanted to say was this, that our learned friends have referred to the proceedings speaking of the obligations of the plaintiff and the way the plaintiff’s case was conducted as if one were really conducting a criminal trial with the burden of truth of every element upon the plaintiff.  The position, of course, is that this was a civil trial.  It was a case where the medical reports were admitted without there being any objection to them and one had to, in those circumstances, give such weight to them as was appropriate.

If one takes, for example, a number of aspects of them, what they demonstrate by the admission without objection, in some cases by consent, is that the respondent had said to the doctors the things that she had said.  They refer to observations made by the doctors personally.  I will come in just a moment to the fact that she was seen by Drs Hall and Thatcher, at least Dr Hall of whom had been a treating doctor of hers for several years before this, and if one is speaking about say, weight loss, he knew what she was like before and after.

Your Honours, in addition to that one has to look to see and one is entitled to take into account what the medical specialists say in relation to the nature of the disease itself.  One sees, for example, where there is admitted material showing that there is a high prevalence of the disease – of the syndrome in the case of persons who have had the disease, that is germane to the possibility, your Honour.

CALLINAN J:   Mr Jackson, nothing can alter the fact that there was diametrically opposed expert evidence on each side.  If you look, for example, at Dr Sutherland’s report, his summary at page 459, it is to exactly, it seems to me, the opposite effect to, for example, Professor Boughton’s report.

MR JACKSON:   Your Honour, could I just say about Dr Sutherland that there is a difficulty with his report, and the reason why his evidence was not ultimately accepted by the judge or treated by the judge as germane was that he did not appreciate that in October – I think it is – that she had a second bout of the same thing.

CALLINAN J:   I was not referring to it to demonstrate that Dr Sutherland was right or Professor Boughton was plainly right or wrong.  It does show that the parties could see what the controversy was.

MR JACKSON:   Well, both parties, your Honour.

CALLINAN J:   Exactly.

MR JACKSON:   Both parties, and one had a situation, of course, where there was a very, very substantial body of evidence, including if I may say so, your Honour, that of Dr Sutherland, absent his view about the time when it happened – or the second bout happened.  All of that evidence was one way, the effect being that she had it, the chronic fatigue syndrome following it, plus in some cases, the view that maybe there is some psychological element on top.

CALLINAN J:   Mr Jackson, what was the strongest medical evidence against you?

MR JACKSON:   Well, there was not any.  Your Honour, that is the case, there was not any.

CALLINAN J:   None at all?

MR JACKSON:   No, no, none ‑ ‑ ‑

CALLINAN J:   You say that Dr Sutherland’s evidence was completely demolished?

MR JACKSON:   Yes, your Honour – in a sense, worse than demolished ‑ ‑ ‑

CALLINAN J:   His opinion?

MR JACKSON:    ‑ ‑ ‑because his evidence was that she did not have the chronic fatigue syndrome because of the timing.

CALLINAN J:   Because of the – he thought the pregnancy was the cause.

MR JACKSON:   Yes, and what he did not take into account was that there was the second bout that occurred in the latter part of 1994, and if there had been – if he had been aware of that, it would have been chronic fatigue syndrome.  So, your Honour, that is where one starts off with the position, that there was, if one looked at the medical evidence, admitted without objection, a unanimity of view.

CALLINAN J:   I do not think you have given us a chronology.  It might be very hardy for us to get a chronology from you?

MR JACKSON:   I am sorry, your Honour, I thought we had.

CALLINAN J:   You have?

MR JACKSON:   Your Honours, I am sorry, I was not aware of that at all.  I will undertake to do so.

CALLINAN J:   Well, it might be very useful, and it would make the points – the chronology seems to be very important to your submissions, Mr Jackson.

MR JACKSON:   Your Honours, what I was going to say was then, if I might, in effect, commence what I wished to say by, as it were, inviting the Court to stand back for just a moment from the detail of what she might have done on this day or that day, but if one looked at really the core facts in the case, one sees, in our submission, that the view adopted by the primary judge is, in our submission, if I could put it perhaps mildly without doing it sublimely, wrong.  But also, we would submit, that the approach taken by the primary judge, and adopted, your Honours, of his own volition – not of some imputed agreement – was an approach which was simplistic. 

Your Honours, it was simplistic because it looked only at whether the respondent’s evidence had been discredited.  It did not, in any very readily identifiable sense, take into account the basic evidence which was in existence, and it established a really quite, with respect, bizarre dividing line between the symptoms up to and including February 1995 and those afterwards.  Your Honours, in our submission, the judge did not ever look at the case overall.  Now, your Honours, I used the expression a moment ago “stand back from the detail of it”, and when one does that, in our submission, there is a strong case in favour of the respondent’s contention.

The diagnosis in those reports depended upon the symptoms.  All of them say that, even and especially Professor Boughton to whom reference was made by my learned friend.  The symptoms in turn depended as to their existence either very largely or in fact entirely when examined, particularly the fatigue ones, on the report of the plaintiff.  There could be corroboration one way or the other but that did not make her evidence any less subjective.  The corroboration of her mother in general terms, a leading question, “Does your daughter have mood swings?”, scarcely qualifies as an Earthline incontrovertible and no doubt for that reason it was never urged as such.

Her report to the court of the matters that she supposedly said to the doctors, and which were accepted as having been said to the doctors by reason of the tendered material, was not believed and that, in our submission, is an orthodox and appropriate way for the case to have been disposed of, not in some excessively perfunctory way, but in an appropriately efficient way.

Finally, your Honours have been pressed with the notice of contention, but the notice of contention has meaning in this Court only as another reason not relied upon by the Court of Appeal for upholding the order made by that court.  The order made by that court is for a new trial.  How can the new evidence of the kind referred to, evidence which, in any event, would be contested were it to have been tendered and admitted, for the reasons set out in our written submissions, how could that new evidence conduce as an extra reason in favour of the order for a new trial?  It would only be if the nature of the new evidence showed that there had been something which amounted to a miscarriage, see Part 51 rule 23.

What miscarriage of justice is there comprised by a reason constituted by demonstrating that a test done after the trial, which could have been done before the trial because a professor has read the trial judge’s reasons and disagrees with the trial judge, how can that, where there was, as Justice Heydon records, no explanation of why it was not done before, amount to a miscarriage without this Court by a side blow undoing the jurisprudence which is critical to the actual running of first instance and appellate cases, namely that by and large one is bound by the way one runs the case.  The policy reasons for which are immensely strong to the point of being a question of principle, that is finality of litigation and also the contestatorial or adversarial or party‑driven model by which we do not undertake to devote public resources endlessly to the perfection of fact finding.

For those reasons, in our submission, it cannot be said that there was anything in the nature of a miscarriage which could be demonstrated for an extra reason in the notice of contention.  That, therefore, falls away as irrelevant.

Your Honours, I think my learned friend’s instructors have made available to the Court a copy of Part 52 of the Civil Procedure Rules 1998 from England and Wales in answer to a request that was made in an allied case.  I do not want to say anything about it except to remind your Honours that there was, as your Honours know, the Bowman Report following upon the Woolf Report – the Bowman Report in relation to appeals – and one of the effects, for example, of Rule 52.10 and Rule 52.11 is that when 52.10(2):

The appeal court has power to –

amongst other things make a wide variety of orders and in 52.11(3):

The appeal court will allow an appeal where the decision of the lower court was-
(a)  wrong; or
(b)  unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

I do not have any jurisprudence on the word “wrong” as it is used in that rule.  May it please your Honours.

GLEESON CJ:   Thank you, Mr Walker.

MR JACKSON:   Your Honour, may I say two things.  One is simply to give a reference.  Your Honour Justice Callinan asked what happened to the trial that she was going to be put on.  The answer is at page 264.

CALLINAN J:   I found it actually.  She did undergo it and it was not totally successful, I think was the effect of it.

MR JACKSON:   Yes, that is so.  She had a reaction to one of the ‑ ‑ ‑

CALLINAN J:   Yes.

MR JACKSON:   It is page 264 in Professor Boughton’s report.  The second thing, your Honours, was in relation to our learned friend’s observations on the notice of contention.  May I just say in relation to that, whether the notice of contention be the right form or not, all that we seek in relation to it is that the matter be remitted to the Court of Appeal to deal with the unresolved issue of the admission of further evidence if the appeal is otherwise successful.

GLEESON CJ:   We will reserve our decision in this matter, and we will adjourn to reconstitute in Court No 1.

AT 2.24 PM THE MATTER WAS ADJOURNED