HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY AND CALLINAN JJWHISPRUN PTY LIMITED (Formerly APPELLANT
Northwest Exports Pty Limited)AND
SONYA LEA DIXON RESPONDENT
Whisprun Pty Ltd v Dixon
[2003] HCA 48
3 September 2003
S216/2002ORDER
1. Appeal allowed with costs.
2. Set aside the orders of the Court of Appeal of New South Wales made on 28 September 2001 and, in lieu thereof, order that the appeal to that Court be dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation:
B W Walker SC with S E Pritchard for the appellant (instructed by Hicksons Lawyers)
D F Jackson QC with K J Ryan for the respondent (instructed by Walker Kissane & Plummer)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
GLEESON CJ, McHUGH AND GUMMOW JJ. This case is concerned with facts and the forensic tactics of the parties at trial and an appellate court's perception of them. Special leave to appeal was granted to determine whether a miscarriage of justice had occurred in the particular circumstances of the case and not because the case concerned any important principle of law.
The trial judge had dismissed the respondent's action for damages on the ground that her credibility was such that he was not satisfied that she suffered from chronic fatigue syndrome, the condition from which she claimed to suffer. The Court of Appeal of New South Wales set aside the judgment because it appeared to that Court that the trial judge had not satisfactorily considered the respondent's case. So the question for this Court is whether the Court of Appeal erred in holding that the trial judge had not properly considered the respondent's case. That, of course, depends on what the respondent's case was at the trial, not on a hypothetical construction of what could or should have been the respondent's case.
Despite its lack of legal significance, the appeal is a fascinating one. It illustrates how an appellate court can perceive a case in a way dramatically different from the case that was run at the trial. And it demonstrates how, when it is so perceived, the trial judge's reasons may not deal adequately with the reconstructed case and appear to have done less than justice to the losing party's case.
In arguing the present respondent's case in the Court of Appeal, Mr D F Jackson QC – who had not appeared at the trial – contended that a substantial miscarriage of justice would have occurred if "the evidence was there" and the judge in writing his judgment "overlooked relevant parts of it". In substance, the Court of Appeal adopted this submission. But the evidence that that Court saw as "overlooked" was different from the evidence that Mr Jackson argued had been "overlooked" by the trial judge. He was speaking of evidence concerning infection. The Court of Appeal's reasons deal with "evidence" concerning chronic fatigue…
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- Case
- [2003] HCA 48
- Decision Date
CaseChat Overview and Summary
The legal issues before the High Court included whether the trial had been conducted on the basis that the evidentiary value of the medical reports concerning chronic fatigue syndrome was entirely dependent on the trial judge accepting Ms Dixon's evidence. Further, the court considered whether, if the reports had independent evidentiary value, they contained evidence of objective symptoms that could have supported a finding of chronic fatigue syndrome, irrespective of Ms Dixon's credibility. The court also examined whether the trial judge erred in not considering the medical reports as independent evidence assisting Ms Dixon's case.
The High Court allowed the appeal, setting aside the orders of the Court of Appeal. Their Honours reasoned that the trial judge had correctly determined that Ms Dixon's case regarding chronic fatigue syndrome rested entirely on her credibility, as the syndrome itself could not be objectively proven and the medical reports' value was contingent on her subjective account. The trial judge's finding that Ms Dixon had recovered from Q fever by February 1995 and was not satisfied she suffered from chronic fatigue syndrome thereafter was upheld. The Court of Appeal had erred in finding that the medical reports possessed independent evidentiary value that the trial judge had failed to consider. Consequently, the High Court ordered that the appeal to the Court of Appeal be dismissed.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside the orders of the Court of Appeal of New South Wales made on 28 September 2001 and, in lieu thereof, order that the appeal to that Court be dismissed with costs.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: HUGH AND GUMMOW JJ,
Full text does not contain this section.