Whisprun Pty Limited v Dixon

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)

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.

Your Honours, may I mention some very basic facts? The respondent was born on 24 August 1972. That appears in volume 1, page 48, line 41. She was thus 21 when she went to work for the appellant and 22 when she acquired the Q fever. Your Honour, she acquired it in rather ghastly circumstances where she was exposed to the highest risks of acquiring it on a number of occasions. The detail of that, your Honours, does not just come from the report of Professor Boughton, but you can see it in the evidence of Mrs Cross, who was the mother of the husband – of her de facto husband, if I can put it that way ‑ at page 163, about line 27 ‑ she also worked at the meatworks ‑ and your Honours will see:

Q. Could you please explain that in a lot more detail?

She speaks about the time before she was sick and after she was sick:

A. Before she was sick she could keep up.

Your Honours will see then what she had to do, further down the page:

pull the calves over, get them lying the right way, cut a nick in them and put a needle into their heart . . .
A. That would drain all the blood out . . .
Q. To get it into the bottle you had to draw it up into a pipette –

which she taught her to do. That goes on, I think, to the next answer on page 164 or down really to about line 16 in effect, and she would go in to see her in between cooking the tripe and doing her job.

Your Honours will see also the evidence of the respondent on the same issue at page 54 line 24 in a passage which goes through to about line 50, where she described the fact that she might get blood in her mouth seven or eight times in a five‑day week. At the end of that the judge put up his hand and said, “I take it that liability is an issue”, and then it emerged at the top of the next page that it was not. One sees also some reference to it in the reasons of the primary judge in volume 3 at page 461 paragraphs 2 to 4 and at 463 paragraph 10.

One sees it also in the evidence of Professor Boughton in volume 2 at page 279 lines 35 to 50. Professor Boughton – and I will come to this in just a moment – although he made reports on behalf of the appellant and he knew what went on there, he was the person – and I will give your Honours the reference shortly – whom the appellant had got to come to Inverell to address people in 1994 about the disease. So he is not someone speaking in any academic or theoretical way; he is a person who knew the meatworks, who had been there and who knew what was going on.

CALLINAN J: He was important on liability, was he not, as well as on quantum?

MR JACKSON: Yes. At page 279 lines 35 to 50 your Honours will see that he refers to what she did and then at the bottom of the page says:

In October she suffered another severe acute febrile illness which coincided –

et cetera.

The next preliminary matter we would advert to is this. There is in fact a very high percentage of persons who acquire Q fever who suffer from after‑effects in the short or long term. The after‑effects are typically Q fever fatigue syndrome. The actual percentage suffering from that is 10 to 20 per cent at the very least. Your Honours will see that in Professor Boughton’s report in volume 2, page 281. What that means is that it is not a rare thing for someone to acquire this; it is a thing that a very significant number of people who have the disease do acquire. So it is not a very surprising thing if someone who has had two severe bouts of it should have one of the most common sequelae from it.

The fourth background thing is this, that the view adopted by the judge was that by February 1995 the symptoms had come to an end. There is absolutely nothing in the material which would indicate that February had any significance apart from the fact that there was a test done then which indicated that at that point it was thought that she had no longer the chronic condition in her blood.

GUMMOW J: What was the test?

MR JACKSON: Your Honour, the tests are referred to at page 248, in volume 2, where the serology is referred to. They show that “she has had Q fever, but does not have chronic infection”. That is about line 45.

GUMMOW J: That is May 1995.

MR JACKSON: That is February 1995.

GUMMOW J: Page 248 is May, is it not?

MR JACKSON: I am sorry, your Honour?

GUMMOW J: Page 248 is May 1995.

MR JACKSON: Yes, your Honour, that is the report. The reference in particular is about line 40, to the serology performed in February.

GUMMOW J: I see, thank you.

MR JACKSON: Which goes through to the next paragraph of that, so what that doctor said is, she has not got the chronic infection now, but you see the last paragraph on that page, “she now has a post Q fever chronic fatigue syndrome”. Now, your Honours, the last matter – and I will come to the detail of this in a little while – is that Q fever syndrome itself affects memory and concentration. I wanted to go, if I may now, to the Court of Appeal’s reasons, but may I come first to the criticisms made of the Court of Appeal’s reference to objective signs. Your Honours will recall they are in volume 3, commencing at about page 640.

GUMMOW J: Before you do that, Mr Jackson, could you just, with reference to the trial judge’s judgment, indicate, if that is possible, the critical passages where error is apparent?

MR JACKSON: Yes. Your Honour, perhaps if I could deal with the aspect of his Honour’s reasons in the first place that touch upon the discrepancies between the evidence‑in‑chief and the cross‑examination. Is your Honour happy if I deal with that aspect first? What I was going to say, was this. If one looks at, for example, paragraphs 24 and 25 – I am not picking out things that are an element of just saying, there are different views open, but paragraphs 24 and 25.

What occurred there, in our submission, was that the judge misapprehended what the evidence was. What I mean by that – I have to take your Honours to the various pages – is that when one saw what she was said to have told Dr Burke, it was that:

walking about the pool with her daughter who is trying to swim, tires her out and makes her feel exhausted.

The cross‑examination that was put to her was on the basis, in effect, that just to walk around the pool would make you tired, and why had she said that to Dr Burke? And she had not said that to Dr Burke at all. So it is based on a misconception. That is the first thing.

The second thing, your Honours, is in relation to the material at page 471. At page 471, you will see in paragraphs 34, 35, 36 and going then to paragraph 44 and 45, two pages over, about what took place on a jet ski – a jet ski and being towed on a tube. Now, the judge appears to have taken the view that the evidence that she gave was in some way in conflict with the evidence which he appears to have accepted, in the end, of Mr Pelja, which is at page 473, end of paragraph 45. In relation to that, our submission is that his Honour must have misapprehended the evidence that he thought that the respondent gave, because there is really no significant difference between her evidence and that of Mr Pelja.

Your Honours, those are two matters in which we say his Honour, in relation to that aspect of the case, was wrong. Now, there are other aspects of it where we say, if one looks at what the evidence was, and this is really in all respects dealt with by the Court of Appeal, that it just could not be right to say that those things demonstrated that she could not be believed in relation to the symptoms that she had given. Now, that is that aspect of it, your Honour.

So far as the other matters are concerned, what we say is that the Court of Appeal reasons were right. There may be differences of view about the manner of expression, but they were right in arriving at the conclusion that there were significant facts that had been demonstrated that just were not taken into account by the primary judge. I wanted to refer particularly in that regard to what took place with the two initial treating doctors.

McHUGH J: Before you leave 471, Mr Jackson, I am just not quite clear on this point. At paragraph 33 the judge said that:

When asked if she had been to the Copeton Dam she responded that she had been out there for a barbecue tea around Christmas with her parents and her daughter. When pressed she agreed she had been there with a Mr and Mrs Mair.

Paragraph 35:

She denied that she had been on a jetski.

First of all, is what the judge says at 33 correct or incorrect?

MR JACKSON: It is correct in a sense, your Honour. Your Honour, one can see what he is talking about. The evidence is at pages 106 and 107.

KIRBY J: Was this a significant factor, or is his Honour doing a little bit of sleuthing here? What was the significance of it?

MR JACKSON: It is one of the features that he went to to indicate that she was not reliable, your Honour.

CALLINAN J: A credibility finding against her.

MR JACKSON: It is a credibility finding.

McHUGH J: But it is more than that, is it not? I mean, if she is suffering from this chronic fatigue syndrome and she is involved in waterskiing ‑ ‑ ‑

KIRBY J: Yes, but even people with chronic syndrome can have an occasional day when they become human beings.

MR JACKSON: Your Honour, there were two things to it really. It was not her case that every day of the week she really could not leave home at all. Some days she was good, some days she was not. It was not the case that every day she was bedridden with a bottle of boiled lollies beside her, or something like that, and watching television. Your Honour, what it was was a case that she was better some days than others, but in any event ‑ ‑ ‑

KIRBY J: Rather like some judges.

MR JACKSON: May I move on, with respect, your Honour. But what it was was a case where, in respect, these events said that she had been for a brief period on the cheer and that she had been a passenger on the jet ski for a very brief trip. Your Honour, that emerged in her evidence‑in‑chief.

McHUGH J: But I do not follow your point you made earlier about some conflict with Mr Pelja. The judge did not say that she was in conflict with Mr Pelja. He said that:

the evasive nature of the evidence she gave in relation to her activities with –

Mr and Mrs Mair –

did not enhance her credibility.

MR JACKSON: No, your Honour. Paragraph 44, what he said was that Mr Pelja:

was indicative of the plaintiff, while being active, including riding on a jetski could only remember the plaintiff being towed on a tube behind a speedboat on one occasion.

Your Honours will see in the next paragraph there had been a falling out with the Mairs and then paragraph 45 he said:

the evidence of Mr and Mrs Mair and Mr Pelja is quite contrary in its tenor to the picture painted by the plaintiff . . . I formed the view that Mr Pelja was a witness of truth.

Now, the reality of it is that there is no significant difference between the evidence that the plaintiff gave and the evidence of – or the picture she painted and the evidence of Mr Pelja. Your Honours, perhaps I could deal with that aspect now and dispose of it. Your Honours will see her evidence on this point in volume 1 at page 106.

Perhaps I should start at page 105 at line 34:

Well, what if I suggested the Copeland Dam?

The context appears from about line 23:

any social functions or events that you have attended in the last twelve months –

So he then suggests the Copeland Dam, dams “used for water sports”. At about line 43:

have you been out there in the last twelve months?
A. I think we went out there at Christmas time and we had barbeque tea, I think.

She says it was with her parents and her daughter.

Q. Just the four of you?
A. There was other people around, but they were just friends with my mum, that they knew.

Then at the top of the next page:

Just going back a little bit before Christmas –

your Honours will appreciate this is evidence being given on 30 August –

can you remember another occasion at Copeton Dam?
A. No, I can’t.
Q. Can you remember indulging in watersports?
A. Such as what?

The next answer:

A. Like swimming?
Q. That or other things?
A. Not that I can remember, no. Like what, do you mean?
Q. Well, like being towed behind a speedboat on an inner tube?
A. I have been in Nick and Shelly’s speedboat, when Sarah was on a tube.
Q. You have been on a tube, too, haven’t you?
A. Only in the water, like, not towed.
Q. Don’t you remember an occasion in November of last year when you went to the Copeland Dam? November 1999?
A. No I don’t.
Q. David Cross was there with you too, wasn’t he?
A. Yeah, because David and Nick are very, very good friends, since school.

Your Honours will see – I will not read it out, but if your Honours would look through the remainder of that page over to about line 33 on page 107. Then, from there there is re‑examination at page 134, line 9 to about line 39. Now, that is her evidence.

If your Honours go to the evidence of Mr Pelja, and the evidence of that, your Honours, can be seen in volume 1, page 202, lines 5 to 17. He was then speaking, as your Honours will see from the bottom of the preceding page, about:

an occasion when there was several people there engaging in watersports?

Lines 5 to 17, and on the same page from line 49 through to page 203, about line 6.

GUMMOW J: Well, he says he saw her on a jet ski once at Christmas.

MR JACKSON: Yes:

Just riding around on it like we all do, just not as hard as we do.

Then, your Honours, page 207 at the bottom of the page, from there through to page 208 about line 9. So, your Honours, his evidence amounted to the fact that she had been on a rubber tube for about once for 10 to 15 minutes, she had been on a jet ski once for a quick run, “not as hard as” they do. Now, the difference between her evidence and the evidence of the witness who was accepted seems, with respect, really of the most minor kind.

McHUGH J: I am not sure of that, Mr Jackson, particularly if you read what the witness said at 107. She was asked at line 10:

do you deny that you were towed?
A. I sat on the tube but I couldn’t handle it . . .
Q. Well, were you towed for any distance on any occasion on a tube . . .
A. No, not that I can remember, because I don’t like it. They were scaring me.
Q. And do you deny that you in fact drove a jetski?
A. I got on, I said, with Shelly, and we only went from there to there and I said stop, I can’t handle it.

KIRBY J: Yes, but surely you have to put this in the whole context of the whole context of the whole history of this woman’s condition. I mean, really, this case is becoming a sort of Sherlock Holmes case to find out a couple of occasions when she was able to do something.

MR JACKSON: The submission we make, as your Honours are aware, is that that was an aspect of her condition that really was not taken into account. Just going back to the part that your Honour Justice McHugh referred me to, there is not, in fact, very much difference between the two.

McHUGH J: It is a question of how she said it in the overall context. As Justice Kirby puts it, you have to remember about the evidence of the wedding, evidence at the racecourse ‑ ‑ ‑

CALLINAN J: And the videos.

MR JACKSON: Your Honour, what the video showed was someone –the wedding video was eight minutes and as one of the members of the Court of Appeal said, as your Honours will see from the reasons, no one knows what she was like the next day. “Was there any evidence about how she was the next day?” But so far as ‑ ‑ ‑

CALLINAN J: But she came back and said – was that the occasion in respect of which she said her drink had been spiked?

MR JACKSON: Your Honour, that is right.

CALLINAN J: Amphetamines.

MR JACKSON: Yes, there was a falling out between herself and the Mairs. She said she felt ghastly.

CALLINAN J: It is not a very plausible explanation though, is it?

GLEESON CJ: There had been a conviction for a drug offence, had there not?

MR JACKSON: Yes. The Mairs were not entirely ‑ or one ‑ Mr Mair was not entirely bereft of form.

CALLINAN J: I saw that, yes, but it was different from her explanation in‑chief, was it not?

MR JACKSON: Your Honour, there may be many reasons for that but for someone to enjoy herself at a wedding and once or twice a year at the races when her father is the clerk of the course at country races does not seem ‑ ‑ ‑

KIRBY J: It sounds most unreasonable to me.

GLEESON CJ: It really comes down to this, does it not, if you look at paragraph 53 of the reasons of Justice Newman which relates back to what he says in paragraph 19 on page 465. In paragraph 19, he says:

the only issue which arose in the case was whether the plaintiff’s account of her continuing symptoms was credible.

That is the issue. Then he resolves the issue, rightly or wrongly, in paragraph 53. He says:

the matters raised in cross‑examination and her responses to them effectively destroyed her credibility.

The Court of Appeal as I understand it said, to use your expression, “that is at the very best an oversimplification”. But that is the finding on which his judgment rested. He posed the issue in paragraph 19. He resolved the issue in paragraph 53, and he gave his reasons for resolving the issue that way which were entirely based on the matters raised on cross‑examination with the plaintiff and her responses to them.

MR JACKSON: Yes.

GLEESON CJ: The Court of Appeal says that is just not good enough and your opponent says that is the sort of thing trial judges do every day and that is good enough. That is the area of dispute.

MR JACKSON: Broadly speaking, you are right. To put it very shortly in a sense, what we would say is assuming that the question that the judge posed for himself was the right question, his method of answering it or the manner in which he approached at arriving at an answer to it, was unsatisfactory. We say that, your Honour, because what he did was to adopt an approach of simply saying how did she perform in the witness box, whereas the issue was one that required looking at the whole of the evidence. Your Honour, that is the case, really, to put it shortly.

Your Honours, in that regard that is where I would seek to go on now to say that if one looks at the approach taken by the Court of Appeal that the factors to which they referred were factors which did have some significance and were not taken into account in the ‑ ‑ ‑

GLEESON CJ: The trial judge said the cross‑examination blew her case out of the water and the Court of Appeal said there was more to it than that.

MR JACKSON: Yes, that is right.

KIRBY J: There is more water and it is deeper and there is plenty of it.

GUMMOW J: But this material you are about to go, is that relied upon at trial?

MR JACKSON: Your Honour will see that the ‑ ‑ ‑

GUMMOW J: Because Mr Walker would suggest it was not, for this purpose, to bolster this credit.

MR JACKSON: Your Honour, can I just say in relation to it, what you see is that there was a considerable amount of medical evidence which was admitted without objection. I speak first of all about the judge’s function and then about what counsel did. Your Honours will see that the material that was before the judge, his job was to find on the evidence before him. Your Honours, so far as the role of counsel was concerned, it really is ‑ ‑ ‑

GUMMOW J: Can I just interrupt, Mr Jackson. Page 669, paragraph 76, it is said in the Court of Appeal:

It seems clear that the trial judge was not taken to the medical reports in any detail. That seems clear . . . the judge appears to have summarised faithfully the submissions that were put to him.

MR JACKSON: Your Honour, I do not really know where the Court of Appeal got that from because ‑ ‑ ‑

GUMMOW J: Well, are you now abandoning that?

MR JACKSON: Sorry, your Honour?

GUMMOW J: Are you disagreeing with that?

MR JACKSON: Your Honour, what I am saying is that the Court of Appeal made an assumption that the judge was not taken to it and the difficulty was that no one was able to say precisely what had happened, and I should say that whilst my learned junior appears on the record as having appeared in the case, in fact, he was not there during it.

But could I say, your Honour, if one goes to page 475 at paragraph 54, your Honours will see that there is an argument – and part of an argument is recorded – with counsel for our side submitting that these matters were not put to the doctors. It seems really unlikely, in our submission, that the case was dealt with in argument without there being reference to the medical reports.

Could I just refer your Honours in passing to two passages which appear in volume 1. If I could start at page 122, it seems apparent that there had been some proposal, although it is not recorded, actually to call Professor Boughton and another witness, to whom I will come in a moment, and the suggestion, which apparently comes from the judge, seems to have been that they should produce an up‑to‑date report and just put that in. You will see that about the middle of the page after the heading, “LUNCHEON ADJOURNMENT” :

Your Honour, before I forget could I tender a further report from Prof Boughton by consent dated 30 August 2000, and that solves all my professor problems. So that would complete the medical evidence for the plaintiff –

Then at page 74 you will see at the top of the page, him saying:

Your Honour’s suggestion has borne fruit. I spoke to Prof Lloyd yesterday and we have an additional report . . . given it to Mr Dodd and his instructing solicitor . . . no objection to the tender.

So, your Honours, in the light of what has taken place, it is really, with respect, very unlikely that there was no reference at trial to the medical reports. One cannot say exactly, but it would be very surprising if there were.

Your Honours, I was going to go, and I do so as briefly as I can, to page 640. May I come to weight loss in just a moment, which is something I have never been able to achieve. Could I start, your Honours, at page 640 – may I just start with saying something about item (b), the muscle and abdominal tenderness. As the court said:

there was a consistent observation of muscle tenderness and abdominal tenderness –

by a large number of medical practitioners, and it is perfectly correct, in our submission, to observe that in circumstances where observations were made by a large number of experienced doctors, it is right to say that the responses indicating tenderness must have been difficult to feign. Could I mention also, your Honours, what is in paragraph (c) on the next page, and that is, “Appearance and mood”. Your Honours, those are personal observations made by the doctors.

May I come back then to “Weight loss” on the preceding page. Now, the respondent had been a patient of Dr Hall and Dr Thatcher for some years before July 1994 when she acquired the Q fever syndrome, and if I could take your Honours to volume 1 to a couple of passages. She had grown up in Inverell. That appears at page 48:

Apart from a period of 12 months and another of five months, she had always lived there –

that one month – I think they both appear on page 49. In June 1992, when she was 19, she had a baby. That is page 51, at about line 16, and, your Honours, in the course of the pregnancy she was sick, as was the baby, and she consulted Dr Hall. You will see that on page 51 about line 37. There was a bad time during the pregnancy, and the defect refers – a little further up the page – to the baby’s problem, and she said Dr Hall, the local doctor, was in partnership with Dr Thatcher. Now, your Honours, if one goes from there to page 56, you will see that Dr Hall – from the top of the page – continued to be her local doctor. That is lines 1 to 10 and lines 25 to 27, he continued to treat her.

Could I invite your Honours to note in passing, just if one looks at page 55 ‑ this is in her evidence‑in‑chief, your Honours will see the number of “I can’t remember” and “I don’t remember” and so on, so obviously giving her evidence‑in‑chief, she is having some difficulty, and at the bottom of page 55 line 48 said that she did have trouble with her memory:

Q. Do you have trouble with your memory now?
A. Yes I do.

One then sees – and if that is the case of course, it is a pretty soft target for a skilful cross‑examiner.

Returning to Dr Hall, at page 59 your Honours will see at about line 14 she went back to see her GP again. That comes from about line 14 through to line 29. He and Dr Thatcher were both in the same practice. Dr Hall, one would think, who had treated her in fact as her GP for nearly three years, would be in a position to know of his own observation whether she had or had not suffered any weight loss. His report is at page 243 in volume 2. Your Honours will see that in that report he is speaking, at about line 24, about the period of three years after she had the initial problems. She first presented on 27 July, then he refers to the various things that took place. She:

continued to complain of recent episodes of illness particularly marked by chronic fatigue, night sweats, nausea and weight loss –

Your Honours will see he then goes to express his views through the remainder of that.

Those are views expressed by someone who was perfectly able to know whether he is dealing with a person who is now sick, a person he has seen in the past. He is perfectly able to know whether he is dealing with a person who is now depressed and he is in a position, one would think, himself to observe such things as short‑term memory loss, which you see in the middle paragraph of that document.

GLEESON CJ: Mr Jackson, is it fair to say that the essence of the Court of Appeal’s conclusion was that the trial judge took the easy way out and that he should have said that although the plaintiff did herself a grave disservice in her responses to a number of issues that were raised with her in cross‑examination, nevertheless a proper approach required a more detailed examination of the whole of the evidence?

MR JACKSON: Yes, your Honour. Could I add two frills, as it were, if I may say so with respect, to what your Honour has put to me. The degree of disservice she had done was one that really would need to be a little more exactly assessed at a trial, in our submission. That is one thing. The second thing, I suppose, in a sense is to say the same thing, the result being, in our submission, that because one could not say what exactly the right result was, that there needed to be a new trial.

GLEESON CJ: On the other hand, the trial judge seems to have said, rightly or wrongly, “Somewhere along the line I’m going to have to work out in dollars and cents how much I’m going to award this person for the injury she claims to have suffered. That’s a task that is going to be dependent entirely upon my acceptance of her account of the nature and extent of her present condition and I am so lacking in confidence in what she says that I just find that task impossible. I can’t believe a word she says”.

MR JACKSON: That is not what he said, of course, your Honour.

GLEESON CJ: Well, she said her credibility has been destroyed. He says in paragraph 19, the whole issue is whether her:

account of her continuing symptoms –

that is, her account of what she is like at the moment –

is credible.

And he says in paragraph 53 that her credibility has been destroyed.

KIRBY J: That itself seems to be an oversimplification to say the whole issue depends on her credibility, because there was objective evidence of her infection, there was evidence as to what that leads to and there was objective evidence that it had led to that in this case, that this was entirely consistent, and it just seems as though his Honour turned himself into a sleuth, instead of looking at the whole picture. Okay, she was caught out, let it be, on a few fibs, a few lies, that does happen. You still have to look at the whole case. That is what the Court of Appeal felt and I think ‑ ‑ ‑

MR JACKSON: Your Honour, if I could perhaps endeavour to encapsulate and answer what both your Honour the Chief Justice and Justice Kirby have put to me or said. The starting point, of course, really was that once liability was admitted, there had to be an assessment of the damage that the respondent had suffered. In assessing that damage the judge had to work out what were her disabilities for the future. Now, in dealing with those disabilities he had to form a view about how incapacitating they were. It did not turn entirely, in our submission, upon his saying, “I believe her in every respect”, or, “I don’t believe her in every respect”. What he had to work out was the objective position in relation to her condition.

Now, in relation to that, your Honour, he had a number of pieces of evidence. One important piece of evidence, of course, was the nature of the sequelae of having the infection in the first place. The frequency with which it occurred, the severity which it occurred and the situation and the fact that there really seemed to be no change at all in the nature of the complaints she was making between the time when she had the chronic Q fever infection and the time when she was claiming to have the syndrome.

All the matters that he had were matters to be taken into account and the approach which the judge adopted, in our submission, was to pose himself a question which, in one sense, was right but, in another sense, was, because of the way in which he perceived the nature of the question he had asked himself, rather too limiting. In dealing with that, your Honours, he went only to part of the evidence, an important part, but part only, and that is why the case was one where the Court of Appeal was right in saying this has not been a proper trial, there should be a new trial, and that is the essence of it.

McHUGH J: Well, I understand that proposition in the abstract, but when you get down to the concrete, what is it exactly the judge was supposed to do? I can understand the force of your case if the judge had said, “I find that she doesn’t suffer from the syndrome at a particular time”. You might argue with some force, given the fact that all the medical opinion, except that of Dr Sutherland’s, was that she was suffering from it, that the judge should have explored that. But the key paragraph is 55, is it not, when the judge says:

I am not satisfied, on a balance of probabilities, that the plaintiff has in fact suffered from the symptoms which she recounted to medical practitioners –

Now, once he makes that finding, that is the end of your case so far as 151G is concerned, but what is the judge supposed to do on the approach of the Court of Appeal? He has somebody he cannot believe. All the doctors can say, “Well, she has these symptoms”. What does the judge have to do?

MR JACKSON: Your Honour, it is really this. It is in arriving at the conclusion that he does not believe her, that, in our submission, the error of process, if I can put it that way, arose because what your Honours will see is that the basis for the judge’s finding seems to have been that he did not believe her when she gave her evidence. But in arriving at that conclusion he left out of account the matters which provided support for her which came from other parts of the evidence. Your Honour, that is the point.

I should add one other thing. He left out of account too the feature which went to demonstrate that there may well be, in her case, some difficulty in doing the very things upon which credibility can depend. I will come in a moment to the case my learned friends referred to earlier, but could I just say, your Honour, it is really a case where the central question as the judge posed it for himself was, does she suffer from these symptoms? In arriving at that he had a variety of pieces of evidence to take into account including her own, but in assessing her own one had to take into account the other features.

McHUGH J: But he says, “I am not satisfied”. This is the dilemma of the judge who gets a person whose credit is affected, that you just have nothing you can go on. Supposing the judge had said, “Well, the medical evidence suggests that she is suffering from some sort of syndrome and I think she probably is, but I’m not satisfied she suffers from the symptoms she’s recounted to the medical.” Now, if he had said that, his judgment would be impeccable, would it not, and is that not the effect of what he said?

MR JACKSON: Your Honour, if he had taken into account all the evidence, then no doubt we would be in a situation where one could not attack it, but that is not really what he did. If one takes, for example, the thing in which I was addressing your Honours a moment ago, the evidence of Dr Hall, on the one hand, and Dr Thatcher on the other – and can I just say, your Honours, these were people who were very experienced in dealing with this disease and I will take your Honours to the detail of that in a moment. They were very experienced in dealing with the detail of the disease and your Honours see Dr Hall, who treats her for the first three years after it happens, and he detects that she has all the symptoms appropriate to it, there is no change in them, there is nothing to indicate that, that would have to be something that would play a significant part in the mind of a judge if he applied his mind to that question and the same in the case of Dr Thatcher. Now, one sees that in relation to those people who were the doctors who had the closest connection at the time ‑ ‑ ‑

KIRBY J: The alternative theory is that she is sitting there with the medical encyclopaedias open on her bed every night feigning this over year after year and doing it consistently, a person of this level of intelligence and experience – it just defies credibility.

MR JACKSON: Yes, it is a concentrated 21, your Honour. Your Honours, may I come back for a moment to what I was saying about Dr Hall and Dr Thatcher. She had also seen, your Honours, the other member of that practice, Dr Thatcher, and his report is at page 246 in volume 2. You will see this is a report that at this point he was giving to the appellant.

Now, he saw her at this point – he saw her many times later – but he saw her on four occasions at this time. You will see that at paragraph 3 on page 246. He regarded her then – and then is the time February 1995 when the judge cut off and said there was a cut‑off, in effect – as being “significantly disabled”, paragraph 5.

KIRBY J: What is that “Q fever IgG”? What does that mean? That is a serum test, is it?

MR JACKSON: Yes, I am sorry, your Honour, paragraph 2?

KIRBY J: Yes.

MR JACKSON: Yes, your Honour, it is the test – I hope your Honour will not ask me to go to the detail of it, because it takes a little while, but what one can see from it is that if there are some signs there, then one can see whether the chronic Q fever still remains – whether the infection is still there.

KIRBY J: And were there such tests performed after the date where the judge cut her off?

MR JACKSON: Yes, there were. I do not think they showed that the chronic was still there, your Honour. They will not deal with the chronic Q fever syndrome – the fatigue syndrome. They will deal with the question ‑ ‑ ‑

McHUGH J: She did not have chronic infection, did she?

MR JACKSON: No, your Honour. That is the point of the application for fresh evidence, to show that she still has it. The perfect system, as it were, of seeing witnesses and so on can sometimes go wrong. What I was dealing with was at page 246. You will see that he noted in paragraph 2 that:

On examination she had generalised lymphadenopathy and a tender spleen tip palpable. I thought she might have chronic Q fever.

Your Honours will see that he, in paragraph 7 – and, again, he had been a doctor in the practice and obviously knew her:

Prior to this illness she was fit, active and a hard worker in my opinion.

Your Honours will then see at the top of the next page that:

Her condition was definitely caused by the prevalence of Q fever in the Inverell Abattoir –

and he referred to the fact that:

The later course has been recommended on numerous occasions –

Now, he saw her on a number of occasions after that and his subsequent reports record no change. Could I refer your Honours to page 248, 249 ‑ ‑ ‑

KIRBY J: 248 or 258?

MR JACKSON: Volume 2 page 248. That is his report of 8 May 1995. He speaks of reviewing her, in the fourth paragraph: “reviewed her on several occasions” ‑ ‑ ‑

KIRBY J: Is this after the cut‑off?

MR JACKSON: Yes. He expresses his view at the bottom of page 248, and then at the top of the next page says:

I have no doubt that this previously energetic woman who was working very hard to pay off her mortgage has been severely debilitated ‑ ‑ ‑

KIRBY J: Was the Q fever serology explained or known? You see, the trouble would be that people at trial would know these things. I have forgotten them. This is on page 248: a “High Level” of Q fever, Phase II.

MR JACKSON: Yes, it is. Can I give your Honour a reference to it in a moment. Finally, your Honours, at page 250 in the second paragraph, he speaks of seeing her in 1996 on a number of occasions:

Her condition is essentially unchanged. She continues to fatigue easily. She has had several upper respiratory tract infections.

One of the symptoms of Q fever is flu‑like symptoms. You will see that referred to by the primary judge at page 462 in volume 3. Now, what you had was a doctor, in the case of Dr Thatcher, who is very, very familiar with the condition, who speaks of her having a continuing condition that goes on well beyond the February ‑ ‑ ‑

GLEESON CJ: Is it the case that on the findings of Justice Newman she had, without question until a certain date, these symptoms and the question was whether she still had them?

MR JACKSON: Yes.

GLEESON CJ: Why did it require such imagination on her part to invent the symptoms? She had actually had them, on any view of the matter, for some time, yet Justice Heydon seemed to assume that she would have required a great deal of imagination.

MR JACKSON: Your Honour, what she had had was the acute infection which brought about the illnesses and she was recovering from the illnesses. The illness did not necessarily produce every one of the symptoms from which she later complained. What happened was that the symptoms that she had later were symptoms that were consistent with the disease. Your Honour, it could be, would be, in our submission, difficult to create a view which was correct and goes over with, in effect, every doctor she sees if one were not suffering from something that was consistent with the disease and so, in our submission, it would be quite difficult to do it, to do it effectively.

CALLINAN J: Mr Jackson, anybody who has had experience in this area knows that some people can and do these sorts of things, and do them very convincingly.

MR JACKSON: Some do, your Honour, and I have acted for one or two in the past actually.

CALLINAN J: No doubt you have encountered them, Mr Jackson.

MR JACKSON: One or two about whom it has been suggested, unsuccessfully. But, your Honour, having said that, the fact of the matter is that this was something where she was not being seen by people who were ingénues in the area, she was being seen by two doctors at this time who were are the very forefront of dealing with the condition that had obtained at this meatworks for quite some time.

Your Honours, could I say I mentioned that Drs Hall and Thatcher were familiar with the Q fever, they were the local doctors. I referred to Dr Thatcher at page 247 but could I also refer to his letter of 17 December 1993 which is at page 358. The letter at page 358, he is written to by the appellant in relation to his concern in relation to his concern in relation to a number of the plant employees being diagnosed as having Q fever. Now that is December the year before. Your Honours will have seen in paragraph 54 of the judge’s reasons that he noted that counsel for our side had submitted that none of the matters going to credibility were put to any doctor. It was not “all” but to any doctor. But in circumstances where one had treating doctors who knew her before and after, who were familiar with the disease, who were able to express views as to the consistency of her symptoms with her ability to do the things relied on and whose evidence was admitted without objection, then your Honours, it is not just a matter of saying the plaintiff should call all the evidence. There is some burden, in our submission, upon the other side to demonstrate that their evidence should not be accepted.

CALLINAN J: The doctors could not have been asked to comment on the plaintiff’s credibility.

MR JACKSON: No, not as such, your Honour. What they could be asked ‑ ‑ ‑

CALLINAN J: I accept consistency and ‑ ‑ ‑

MR JACKSON: Yes. Could I invite your Honours to note in passing this was not a case where the respondent said she was disabled every day. Your Honours will see that in volume 1, page 62, the passage commencing at about line 32 and it goes through to the top of page 63:

Q. Sometimes you are better than others?
A. That is right.

Then at page 63, about line 33:

Q. By comparison, when you have a good week, do you get any headache in a good week?

And she describes her condition through pages 63 and 64 and the first 10 lines on page 65, and then at page 66 at about line 26 through to about line 40.

She was referred, your Honours, as appears from page 31, to Dr Kendall and Dr Kendall’s report is at page 307 in volume 2. He was a consultant physician in Sydney and your Honours will see at page 307 under the heading “PROGRESS AND CURRENT STATUS” that she was not putting to him any story that she was suffering every day in a really bad condition. She said:

Her condition fluctuates quite a lot (so her mother confirmed today), she might be quite reasonable for two weeks and then she might be quite ill and disabled for seven to ten days.

Now, your Honours, I have passed a little, of course, beyond weight loss, but could I come back to that ‑ ‑ ‑

KIRBY J: Described as “much less than her reputed previous weight”, 308.

MR JACKSON: Yes, but, your Honours, if I could go back to the views being expressed by the Court of Appeal at page 641 in volume 3 under the heading “Unreliability in recollection and concentration”. Your Honours, could I just say this is a quite different case from Rosenberg v Percival. Here, the judge relied on her unreliability in giving evidence as a reason for disbelieving her as to her symptoms, but one had to assess the unreliability, that is whether it was due to poor memory, lack of concentration or fabrication in the light of the fact that a symptom of the disease is poor memory and loss of concentration.

Your Honours, if one took the ordinary brain damage case where the contention was that brain damage had caused a loss of memory or concentration, then the ability of the plaintiff to concentrate and recall when giving evidence would be relevant to that issue. Inability to recall may mean, as the discussion in Rosenberg v Percival indicates, that evidence on an issue is not there, but that is a different question, with respect. Your Honours, perhaps there is a kind of catch‑22 element, to use our learned friend’s expression. There is nothing very new about that in this class of cases.

Now, your Honours, we referred in our written submissions in footnote 12 to where one finds the evidence about the condition. Your Honours, I will not take your Honours to the several references now, but could we refer your Honours to those references and I mentioned in passing that one sees a reference to short‑term memory loss in the first report of Dr Hall.

GUMMOW J: The plaintiff seems to have considered she was having a “good day” on the day she gave evidence, page 69.

MR JACKSON: I think so, your Honour, yes, at least at the start of it.

GUMMOW J: Yes, that is right.

MR JACKSON: There was also, your Honours, evidence that following the acquisition of Q fever she had significant problems with mood swings and other matters consistent with continuing effects of the disease. Your Honours, could we refer in that regard to the evidence of two people, Mrs Cross on the one hand and her mother on the other. Mrs Cross’ evidence is at page 161 in volume 1. She was the mother of the father of the child. Your Honours will see at page 161 about line 18 she was asked:

What sort of young woman was she?

and the next answer –

Happy go lucky; nothing worried her or phased her, and she was a very pleasant young lady.

Now, one went from there to page 163, about line 18:

after she became sick the first time:
A. She was just very moody. You would say something to her and she would jump right down your neck and that wasn’t Sonya before.

She spoke in the next few questions and answers, because she worked beside her, of her ability to “keep up” and then, your Honours, at the bottom of page 164:

very moody . . . you didn’t know what sort of a mood she would be in, whether she would be happy‑go‑lucky –

et cetera, and then at the bottom of page 165 and the top of page 166 she expressed her views quite forcefully saying:

She is a bitch, an out and out bitch –

and that depended –

on her mood –

and your Honours will see, I should say, that in cross‑examination at page 167 line 43 she:

formed the view . . . She had been sick for about 6 or 8 months and you could gradually see her getting moodier and moodier.

Then, at the bottom of that page and the top of the next page, she said she had not spoken to her since early 1995. One might wonder about whether that is accurately recorded, but that is the way the evidence appears to be and, your Honours, the mother’s evidence is at page 144 about line 12 through to page 145 line 33. Your Honours, I do not think I need to go to the detail of that.

His Honour dealt with their evidence at paragraph 51 at page 474 and your Honours will see that he said she:

was corroborated to some extent . . . by her mother.

Then, in paragraph 52 there was evidence of Mr Cross’ mother being corroborative and then says:

Despite this support I have concluded that the matters raised in cross‑examination . . . effectively destroyed her credibility.

Well, your Honours, it is difficult to see why, if one treats that as corroborative and as evidence which, in the case certainly of Mrs Cross, does not seem to be challenged, why one would treat that as not supporting her case.

Your Honours, could I come then to the next of the headings at page 642, the “Impression of sincerity”. Your Honours, it is perfectly correct, of course, that it is for the court, not for doctors, to decide whether a plaintiff has symptoms of which she complains. It is relevant, in our submission, to note – and your Honours will see that the Court of Appeal was really very restrained in its observations in this regard – that of the many very experienced medical practitioners whom she saw, none thought she was fabricating the story.

Your Honours, I said “very experienced medical practitioners”. I have mentioned already Hall and Thatcher and the other doctors to whom she was sent by the appellant and Professor Boughton, and if one needs better qualifications for him, one can see in volume 2 at page 375 – this is something I foreshadowed a little earlier – that he was the person whom the appellant had invited in September 1994 to participate in a Q fever information and education night in Inverell.

Your Honours will see then, going to page 643 under the heading “Possible presence of Q organism” – what that means, to put it shortly, is that she was prepared to go on a trial course to see if she could get rid of the condition she had. Your Honours will see that ‑ ‑ ‑

KIRBY J: What page is that?

MR JACKSON: Your Honour, at page 643, first of all, paragraph 44. Where one sees it is this, in volume 2 at pages 293 and 294. She had seen Professor Lloyd, who was a specialist in this area, and he examined her and at the end of his report he said there was something they were trialling which might assist people who had the condition of which she complained and she was prepared to go on the trial. The reference to Professor Boughton’s observations is a reference to page 264 line 15. Your Honours, it does not amount to more than that, but that is what it is.

Your Honours, item (g), “Confirmation of plaintiff by other witnesses”, I have referred to that already. If one goes to page 644 under the heading of “Experience of, and studies examined by, medical experts”, we would simply say two points about it. This was all material that was in evidence. Both courts were entitled to look at it. The first was the very high proportion of persons who actually got chronic Q fever syndrome.

The second thing was, if one goes over to page 646, you will see commencing in page 645, an extract from a report from Professor Marmion, and the thing to which we would refer your Honours particularly, is at page 646, commencing about line 25 you will see a list of the dominant symptoms of the Q fever fatigue syndrome. They are:

1) an incapacitating fatigue requiring prolonged rest after simple tasks –

and then:

2) nausea, and persistent headache needing frequent use of analgesics –

and your Honours will recall that she was under a course of Panadeine Forte from Dr Thatcher for years:

feeling feverish with profuse, odoriferous sweats at night requiring changes of bedclothes, usually afebrile –

that was her evidence.

myalgia in any muscle group –

the same thing.

muscle fibres and muscle tenderness on palpation –

your Honours, I will not go through the remainder of it, but your Honours will see that what she had, what she complained of were the symptoms. Your Honours, no one who saw her, in our submission, thought that the symptoms were fabricated.

Now, your Honours, if one goes to page 647, where his Honour deals with what actually took place – I am sorry, I should have said 648, the contrast between the findings as to the working conditions and evidence as to the working conditions. Your Honours, the short fact was, it was a very bad situation. I have taken your Honours to the evidence in relation to that already.

Now, your Honours, our submission is that the Court of Appeal was right in saying, as it did, at paragraph 55, that the case did throw up a curious and unusual problem. Your Honours will see what is set out there that she was a person who had had three jobs. She was working to pay off a home, enthusiastic and so on; she led a perfectly normal life, and thereafter it came to an end. Your Honours, in those circumstances, we would submit that it was perfectly appropriate for the court to adopt the discussion that one sees in paragraphs 56 to 61 and to arrive at the conclusion which it ultimately did and, your Honours, ultimately did in the sense of saying this is a case where it was appropriate for there to be a new trial.

Could I come, then, your Honours, to what the Court of Appeal did, having referred to those various possibilities?

McHUGH J: There is the fifth possibility which might well be the true possibility and that is that she did have symptoms but it is just impossible to say what they were because she was a person who’s evidence could not be accepted.

MR JACKSON: Your Honour, that is really a possibility ‑ ‑ ‑

McHUGH J: So that is the real difficulty I have about the case, Mr Jackson. I think if I had been the trial judge I might have taken the view that this woman – maybe she was lying but she was certainly very unreliable, but then the real question was, how do you deal with this medical evidence, particularly the unanimous opinion of the doctors, apart from Dr Sutherland, that she did have this condition, and there was objective evidence from Mrs Cross and her mother and other people that supported these mood swings and so on.

MR JACKSON: Your Honour, perhaps I could say in relation to that, that really is not, with respect, what the judge did.

McHUGH J: No, I know it is not. That is not what he did. What troubles me is whether or not he erred simply because he did not explore these other possibilities or even try to come to a solution.

MR JACKSON: That is why, really, the case had to be one where we were seeking a new trial rather than suggesting that we had to win. That is one of the difficulties that arises if the evidence in a case and matters that go to credibility are not dealt with satisfactorily by the primary judge it can be very difficult for the Court of Appeal to arrive at a conclusion and that is why, your Honour, this was a case where, in the event, it had to be a new trial.

Your Honour, all I am trying to say that at a proper trial, whether it be first or second, it may be that there are difficulties but it is an issue that would have to be resolved upon the totality of the evidence. I do not think I can say more about that.

Your Honours, could I deal – and I will endeavour to do so very briefly – with the matters upon which the trial judge relied to treat credibility as destroyed. They are referred to in summary by the Court of Appeal at pages 653 and following. Could we say that, first of all, if one looks, for example, at the evidence concerning the ownership of the land on which the shed in which she lives was situated, that, in our submission, was something that really was a triviality and appears to have been brought about by confusion over the fact that it was on land that she owned, but it was adjacent to and received water from her parents’ land, and the two areas were run as one property. Your Honours will see, page 653, line 40, “still on your parents’ property?”.

McHUGH J: The Court of Appeal set out page after page of transcript. The judge himself said that these are peripheral. I am not even sure that he was not simply saying that this was what she was cross‑examined on by counsel. I think he was making an adverse finding, but he did not seem to place much emphasis on it.

MR JACKSON: Well, your Honour, it is one of the things he extracts. Could I refer, for example, to page 659, lines 3 to 6. The property is “all joined together”, and she uses the water “that runs across”, bottom of the page. Page 660, line 10, “it runs all as one”. Then 662, about line 5, “Because we run it all together”.

The only other aspect to which I propose to go specifically in this regard is in relation to the aspect of walking around the pool. Could I in that regard take your Honours to what is at paragraph 65 at page 662. Your Honours will see that the Court of Appeal picked up that what had been put to the witness was really based on a misconception of what the evidence was. What Dr Burke had recorded in his report appears in paragraph 67 at the bottom of page 664. He said that she found:

“that performing exercise exhausts her and simple walking about the pool with her daughter who is trying to swim tires her out and makes her feel exhausted.”

The way in which the cross‑examination was put made it seem as though she was talking about walking around the perimeter of the pool, as distinct from walking about the pool with her daughter.

Now, your Honours, in the end, in our submission, the matters to which reference was made by the primary judge are matters which perhaps are trivial – oversimplifies them – but they were not matters which, in our submission, were of very great significance, bearing in mind her mental condition. Your Honours, could I say, then ‑ ‑ ‑

McHUGH J: Before you do, what is the legal category the case comes into if one took the view that what the trial judge has done here has simply said, “Well, I’m just not satisfied what her complaints are and, that being so, she doesn’t get over the threshold”, and there is an argument that the judge should have examined other evidence and attempted to make some finding? Now, is that error requiring a new trial? Is it within the judge’s discretion to approach the case that way? If it is error, what is the actual error?

MR JACKSON: What your Honour put to me really encompasses, in a sense, two situations. If what one has is the judge saying, “I can’t work out what her symptoms are”, and the features that lead him to say that are that he has not taken into account the other evidence, that is a case, in our submission, where there should be a new trial because the judge has not performed the task of considering all the evidence with a view to arriving at the correct conclusion. It is of the same category as Earthline. As I said before, it may not be the same species but the same genus.

Your Honours, if it be the case that the judge does do that properly but says, “I can’t arrive at any conclusion about what the symptoms are”, then it is likely to be very much a borderline case. What I mean by that is that it might be thought to be a result which was open to a judge to arrive at. On the other hand, one would have to consider that in the light not just of the credibility aspects but in the light of the fact that part of the function of a judge is to assess the damages and one gets potentially into that area of territory where, although the evidence might not be precise, there is evidence of damage and the court in the end has to do the best it can. That is why I say there are really two categories of cases, the second one moving slightly into another area.

Your Honours, could I move then, and I will do so I think very briefly, with the question of further evidence. Your Honours, the relevant statutory provisions of section 75A of the Supreme Court Act are subsections (7), (8) and (9). Now, the wording of subsection (7) is:

The Court may receive further evidence.

Then one sees that the Court, in subsection (8), it is not to do so:

after a trial or hearing on the merits . . . except on special grounds.

Then subsection (9) is a qualification of that. Now, could I say several things about it, your Honours. The first is that the provision is expressed in broad terms ‑ ‑ ‑

KIRBY J: Why would we resolve this? This has not been the subject of any determination by the Court of Appeal in the conclusion that they reach that is at 671. Why would we not just leave it to them if in fact you succeed?

MR JACKSON: That is all I ask, your Honour. Our learned friends seem to suggest that in some way the matter should not be dealt with that way.

KIRBY J: But especially in the matter affecting the practice and procedure of the Court of Appeal. One would normally not intrude upon that matter without the opinion of the Court of Appeal.

MR JACKSON: Your Honour, we contend that that aspect of the case should go back to the Court of Appeal and really, your Honours, we would seek to say no more than appears in our written submissions in paragraphs 30 to 36. Could I add one reference, and that is to the fact that in volume 3 at pages 508 to 510 one sees the nature of the further evidence and Professor Marmion, in short, said that tests which were carried out after the trial have resulted in it being shown that there was still the Q fever infection in the body.

KIRBY J: What page is that, I am sorry?

MR JACKSON: Your Honour, it is volume 3 at page 508, first of all. I am putting this very briefly, your Honour will understand, at page 509, between lines 34 and following:

The attached report shows Sonya’s serum has raised levels –

et cetera. Then on the next page under the heading “Comment” ‑ ‑ ‑

KIRBY J: I hope I am not getting new evidence now; that is not permitted to me.

MR JACKSON: No, your Honour. I am not saying it is new evidence in this Court, your Honour.

KIRBY J: I am just being faithful to the Court’s jurisprudence, Mr Jackson.

MR JACKSON: Your Honour, in Eastman and the….case. All I am saying, your Honours, is that the purpose of the evidence, if your Honours need to see it, is essentially what one sees at page 509, page 510 under the heading “Comment”.

GUMMOW J: Anyhow, it was part of a record that has come up to us.

MR JACKSON: Yes, your Honour.

GLEESON CJ: Yes, thank you.

MR JACKSON: Your Honours, might I just give a reference and that is that in relation to Dr Sutherland’s evidence – this arrives from something your Honour Justice Callinan asked me, I think, at the start of ‑ ‑ ‑

CALLINAN J: Yes.

MR JACKSON: If one looks at volume 2 at the bottom of page 445, he said that:

From the information available to me, it appears that Mrs Dixon acquired acute Q fever in July of 1994. She then developed a chronic fatigue state in October or November of that year.

He said:

If she returned to good health in the intervening three or four months, then the claimed causal link . . . becomes untenable.

But, of course, what he left out of the account was the fact that she had a second bout of it in October and he refers then to say that one should be able to resolve that by seeing her “medical consultations”, “(including those with Dr Hall).

GUMMOW J: Sorry, Mr Jackson.

MR JACKSON: Sorry. He says in the same paragraph he says, one should be able “to resolve this” by looking at the “medical consultations . . . (including those with Dr Hall)”. Your Honours, those are our submissions.

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

MR WALKER: Your Honours, on that last point, there is in fact no issue about any of that - see paragraph 18 of the trial judge’s reasons at 465. That was decided in favour of the plaintiff. So were a number of other matters which tend to undercut the arguments your Honours have heard. At 464, paragraph 16 – I think your Honour the Chief Justice has already referred to this – there is reference to:

the uncontested evidence was that if in fact she was suffering from these symptoms that they constituted post Q fever chronic fatigue syndrome –

The plaintiff won that point. That is why it was correct for his Honour below then to use the expression of “the only issue” in paragraph 19. There was acute fever. If she had the symptoms. She did have the syndrome, which would give her large damages. The plaintiff had won those issues in the judge’s mind. Abbreviating reference to them in the reasons is laudable, not an error of failing to take matters into account in her favour.

KIRBY J: There are some scientific extracts in the papers which must have been exhibits, which suggest that it is not atypical for this condition to last up to 14 years.

MR WALKER: That is one of the reasons why his Honour made the reference in paragraph 16 to how debilitating it would be. None of that is in contest, your Honour. This was a serious complaint. Question, “Did she have the symptoms” ‑ ‑ ‑

KIRBY J: But really, relying on a few incidents of waterskiing and so on seems, with all due respect, a very unsafe way to determine the overall picture of a condition of this kind.

MR WALKER: That, however ‑ ‑ ‑

KIRBY J: We all have tired days. I certainly do, Mr Walker, and no doubt you do. To suggest that ‑ ‑ ‑

MR WALKER: Your Honour, that is not the way the case was fought. It is also not the case that the plaintiff made it clear from the way in which she put the case that there were, as it were, ups and downs consistently. There is a reference to the consistency of accounts. Perhaps the best way is to deal with it by the paragraphs under criticism in the trial judge’s reasons. The fact is, as it is now said in the High Court, was apparently said in the Court of Appeal, either the doctors’ reports sufficiently, accurately record what was said to them or not. That is one thing they say they did prove. Well, doctors’ reports did contain reports which, on any view of the plaintiff’s present case, must have been exaggerations; not allowing for bad days.

In our submission, there is an inconsistency which includes exaggeration of symptom, by reports to doctors, which was then explored before the trial judge, and it is a travesty of the trial judge’s approach to say that he seized upon, as it were, waterski incidents. It was the totality, and he had the impression that he was able to form from seeing her cross‑examined on a number of matters.

GUMMOW J: Mr Walker, perhaps after lunch, what do you say to the suggestion Justice McHugh put to Mr Jackson as to this category out there into which this case might fall which would be troublesome for you if that were so?

MR WALKER: Your Honour, taxonomy of error, as it were, should not be multiplied. One does not need subtle refinement of categories. The orthodox questions which are the ones that should be asked would result in a question: have there been factual errors of a kind within appellate review? If they would prima facie not be within appellate review because of reasons adumbrated in Abalalos and long familiar before then, then have there been reasons such as illustrated in Earthline nonetheless to interfere? That orthodox course was not taken below. That then left the issue: has there been something ‑ ‑ ‑

GUMMOW J: I know and I think to some extent Mr Jackson, as it were, is skirting around the Court of Appeal and supporting it on another basis perhaps, or something like another basis.

MR WALKER: It is fair to observe as we stand up in reply that very little of that, if any, appears in the written submission against us in this Court. One will not find it but ‑ ‑ ‑

GUMMOW J: That may be so, but nevertheless it is on the table.

MR WALKER: I am not suggesting I do not have to deal with it but my submission is that certainly in relation to hunting down the fact that it does not appear in case law, which I make as an assertion because the case law is before the Court, I have not been able to do as punctiliously as I would have preferred. The point, if it be a point at all, seems to be that there is a case where notwithstanding issues of onus and notwithstanding history of the forensic choices made by a plaintiff, nonetheless there is what I will call a dissatisfaction with the outcome – and I stress “outcome” – by reason of something in process which cannot be identified outside the matters for which the plaintiff was responsible by forensic choice. In our submission, that is not a category which has hitherto been understood as a ground of appellate review and this Court should not add it.

GLEESON CJ: Is that a convenient time? We will adjourn until 2.00 pm.

AT 1.02 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

GLEESON CJ: Yes, Mr Walker.

MR WALKER: If it please your Honours. Taking your Honours to paragraph 16 and following of his Honour the trial judge’s reasons, in our submission, clearly enough all other issues at stake between the parties having been resolved in the favour of the plaintiff one way or the other, it was correct that the only issue was whether the opinions which would not have been merely relevant but, as it happens, by concession decisive on the question of suffering a loss requiring a compensation, whether they could be used at all bearing in mind the assumptions upon which they were based.

Furthermore, it is clear from paragraphs 18 and the whole of paragraphs 16 to 19 that the telling of the histories to the doctors as reported by them in their reports which were tendered as part of exhibit A was also found in favour of the plaintiff. That, of course, is one of the evidentiary uses which is asserted in this Court to be appropriate by that admission without objection to record and approve the fact of what was said to the doctors. It is clear, therefore, that when one ‑ ‑ ‑

GUMMOW J: Now, looking at paragraph 19 ‑ ‑ ‑

MR WALKER: The two paragraphs in question were paragraphs 17 and 18, of course, but 17 in particular.

GUMMOW J: Yes, look at the second sentence in 19:

Because the continuing symptoms are entirely subjective the only issue ‑ ‑ ‑

MR WALKER: That is right. Now, there is nothing objective in any recognised sense of the word except the so‑called corroboration by other witnesses that would suggest any need to qualify that statement. That statement requires no qualification. Serology did not do it. Nothing else did it in terms of what she had reported because, when you look at the list of symptoms, they are individually highly non‑specific. Your Honours need only contemplate one of them, headache, to see that this was the clinical diagnosis that was on all hands conceded. It can be seen, for example ‑ ‑ ‑

GUMMOW J: She had, it is said, reported to the medical people on earlier occasions.

MR WALKER: Things which led them to say – one of them, for example, used the word “classical”.

GUMMOW J: Yes.

MR WALKER: This is symptomatology which is classical of ‑ ‑ ‑

GUMMOW J: The complaint may be, in the end, ruling against her on her credit. The judge did not give any weight at all to what she appeared earlier to have said.

MR WALKER: In reality he did, in these very paragraphs. In paragraph 17 he makes clear at the outset of exposing the issue:

She has presented to all of them, with one exception, a consistent history –

The one exception is then dealt with in her favour.

GUMMOW J: But assuming ‑ ‑ ‑

MR WALKER: And then he goes on, the first sentence of 19, evidence‑in‑chief “consistent with” – now it is not entirely congruent with, but certainly:

consistent with the history of continuing symptoms –

The question was, was that going to survive the ordinary, not extraordinary – the ordinary scrutiny of a trial judge asked to assess whether what was said to the court and to the doctors was reliable. Did it happen?

Now, your Honours have been much pressed with, for example, notions of fluctuation and the like, but at the outset one would have to put to one side, in the absence of highly specialised evidence of a kind which was not presented in this case by the plaintiff, any notion of assuming the condition which was the disputed issue when evaluating evidence of the symptoms which would be necessary in order to diagnose that condition. At the most all you could do is bear in mind that possibility. Beyond that, the evidence in this case did not allow one to go.

In other words, fabulism, which does not appear anywhere as a symptom, could not be used to prove the opposite of what is said in the story. Maybe there is specialised evidence in another case, another ailment altogether, which may well allow that to occur, but not in this case. Short term memory loss, for example, about which your Honours heard in this case, does not explain giving a purported recollection which is later shown to be wrong.

GUMMOW J: Well, I wonder what would happen if there were a retrial, and the plaintiff got in the box again and, let us assume, went very badly, but there was still all this other material. What would the trial judge do, properly, in resolving the question?

MR WALKER: The question in this Court, as it was the question in the Court of Appeal, is what could the trial judge do? And the trial judge in this case did what he could, in other words, could do what he did. It is not possible to speculate in this Court as to what might happen with a future trial judge. It will still only be a matter of possibilities. One cannot say there is any sort of residual category House v The King repugnancy about the result in this case; it did depend upon whether she could be believed.

GUMMOW J: But in working out whether she could be believed, you do not just have regard to what she has been saying in the box where there is other material as well.

MR WALKER: No, not at all and, in particular, if she has tendered medical reports and assisted right up to and including the High Court, that they go in as evidence of what she said to doctors, then she can hardly complain, as apparently she does, that sometimes that came back to confront her. For example, your Honours heard about walking around a swimming pool. The way in which that was used is entirely inconsistent with what I have already put about Justice Heydon’s approach to the so‑called objective evidence and completely inconsistent with paragraph 9 and paragraph 27 of the respondent’s written submissions about the consistency of accounts, meaning of history, and the so‑called contemporaneous evidence of complaints constituted by that. See paragraph 17(a) of the respondents written submissions.

The swimming pool case was a quite extraordinary one. The judge at paragraph 24, which is at page 468, sets out virtually verbatim what Dr Burke recorded at volume 2, page 313, lines 46 to 49. The judge cannot be criticised for having done that, because that is how the report was put forward; a record of what was said to the doctor. In cross‑examination the patient/plaintiff refused to accept that that is what she had told the doctor. So, on that one, Justice Heydon simply says, at paragraph 67, lines 11 to 15 at page 665, that that history was not admitted, and that becomes an error by the trial judge. In our submission, that is an absurd proposition for a plaintiff to advance who is calling in aid the “consistency of accounts and contemporaneous evidence of complaints”.

The same thing is true in relation to so‑called fluctuating ups and downs, so as to explain why every time she was challenged by a cross‑examiner it turned out she had been able to do that which she generalised about not being able to do. One not used by the judge but neatly demonstrated in the evidence is what Dr Kotsiou’s records about driving, the history given to him, volume 2, 256 line 42. Compare that with the cross‑examination in volume 1, pages 107 to 110. This is not a matter of good and bad days.

When one looks at Dr Lloyd, for example, volume 2, 292 lines 35 to 50, he records this estimate by the plaintiff of the best days, even taking into account variations day to day and week to week, of 40 per cent function. Now, it is in light of that that one then compares what my learned friend has put to you in address, namely that Dr Kendall talked about fluctuations. Well, so he did at 307 line 16.

CALLINAN J: Mr Walker, can I ask you about one matter – I am sorry to interrupt you. At page 293 – Dr Lloyd is an associate professor of medicine – at the foot of the page he says, and he is examining the respondent in I think about May 1998 ‑ ‑ ‑

MR WALKER: The persistency in low levels, your Honour?

CALLINAN J: Well, yes, and he says that there is a form of therapy which might be useful and that she has agreed to undertake whatever is necessary. Now, is that referred to by the trial judge? It seems to be very much in her favour, that is all.

MR WALKER: Well, it would only be in her favour if there was that test of intervention and it had an effect, and there is no evidence of that kind.

CALLINAN J: No, but her willingness to undergo it, to undertake it, suggests perhaps a genuineness ‑ ‑ ‑

MR WALKER: The answer to your Honour’s question is no, but in our submission, that is not something which has ever been the subject of complaint. That would be making a new case.

CALLINAN J: Well, would it?

MR WALKER: Yes.

CALLINAN J: Because did not the respondent rely upon all the medical reports?

MR WALKER: She cannot simply say in the Court of Appeal, “Here is all of the medical evidence. It wasn’t all referred to by the judge.” It does not have to be.

CALLINAN J: No, I am not suggesting it is, but the important parts of it one would expect to be referred to, the good with the bad, if it were important.

MR WALKER: When an exhibit like exhibit A goes in, surely a trial judge does not have to say, “Do I have to look at every page? Do I have to talk about every page in my reasons?” It is a matter ‑ ‑ ‑

GUMMOW J: That is what Mr Justice Myers used to say.

MR WALKER: And many judges say when confronted with one of those portmanteau exhibits, “I should make it clear that unless I am taken to something and told why it matters I do not want a complaint that I haven’t looked at it”, but it should not ‑ ‑ ‑

KIRBY J: Yes, but, with respect to his Honour, these are very rustic reasons. They are encompassed in what was a significant case of the medical condition in 17 pages instanced by a few isolated activities of the plaintiff and I am not surprised, speaking for myself, that the Court of Appeal felt that that just was not good enough.

MR WALKER: It is a consistent pattern of the plaintiff being caught out – a consistent pattern.

KIRBY J: Plaintiffs do tell lies. Plaintiffs do tell lies but it does not mean their cases should be rejected. The judges have to weigh all of the evidence and consider all of the evidence.

MR WALKER: No. Your Honour, when plaintiffs tell lies ‑ ‑ ‑

KIRBY J: Defendants tell lies. People tell lies to advance their causes in our courts.

MR WALKER: When people tell lies about their symptoms, it is not a legitimate appellate complaint that they were disbelieved about their symptomatology.

KIRBY J: Yes, but we are not courts of morality punishing people for their lies. We are looking at where the truth lies in respect of their claims.

MR WALKER: No, but lies are one indicator that a trial judge or a jury may take into account legitimately in assessing reliability. That is all. The fact that an appellate judge would have proceeded differently, in our submission, is not the test. That is the length to which I go, your Honour, in answering your question. I do not challenge, with great respect, the proposition that people can tell lies without the entirety of their cause or case being thereby discredited. That must be so. But this was a question as to whether the trial judge had misused or abused his advantage. That can be on the authorities the only proper way of proceeding if the credibility finding is challenged. If it is not challenged, then different issues arise with which we have already dealt.

Now, your Honours, Professor Boughton, 259 line 15, Dr Lloyd, 292 line 47, Dr Burke, 312 lines 24 and 30, and Dr Henke, page 317 line 5, all give reports tendered by the plaintiff as evidence of what she said to them which are not in terms of fluctuations and which use expressions like “all the time” or “any attempt”, “now able”.

Now, these, in our submission, were legitimate matters to be tested by a cross‑examination that says, “Your report is ‘all the time’, is this true?”, and finally taking in overall the testimony of the plaintiff the only issue because all others had been assumed in her favour. The mass of medical evidence went in for her, concluding the issue that the opinions would not merely become relevant in a Ramsay v Watson sense if the assumptions were made good but they would be decisive.

So far as the weight loss which was pressed upon your Honours is concerned, what Dr Hall records in volume 2, page 243 to which your Honours were taken, is the complaint of the plaintiff. There is no weighing then and it was for those reasons purely subjective. To suggest that he was recording a view is at odds with the words he used which talks about complaint. That is no doubt why Justice Heydon did not even include Dr Hall in his list of doctors in that regard because he confined himself to doctors who had actually weighed the plaintiff – see page 640, paragraph 37.

Your Honour Justice McHugh asked about objective tests as to liver function and the state of the liver. There is negative pathology recorded in volume 2, page 308, line 50, that is, not recording pathology.

There is serology, I think in answer to your Honour Justice Kirby, and this goes to the issue about February 1995 as a so‑called cut‑off point, referred to by the microbiologist and infectious disease specialist, Dr Kotsiou, commissioned on behalf of my client whose report is very favourable to the plaintiff overall was tendered by the plaintiff. One sees that at volume 2, page 256, line 33, the serology. That provides ample support for the way his Honour approached that matter.

Your Honours will also note in the same report, Dr Kotsiou’s report, ample support as well from, that is, plaintiff’s evidence for what was said about objective and subjective means of testing symptomatology, at page 257, lines 10 to 15. It is for those reasons that one cannot say in this case that there was ever anything proved before his Honour, let alone urged before his Honour, of the nature of an incontrovertible or thoroughly established fact with which the credibility finding would not fit in the fashion discussed by this Court and applied in the Earthline decision. What happened in this case rather was that there was a failure by the plaintiff in discharging the onus which does have a meaning in the basically contest model of litigation of which this case was an ordinary example. She had to prove enough of the facts to make the opinion she tendered relevant and as we say if she had done that it would have been better than relevant. By concession and finding it would have been decisive.

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

[2002] HCATrans 468

Key Legal Topics

Areas of Law

Civil Procedure

Negligence & Tort

Legal Concepts

Appeal

Causation

Damages

Duty of Care

Negligence

Reliance