Williams v Dawson P71/2000

[2001] HCATrans 552

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P71 of 2000

B e t w e e n -

PHILLIP JOHN WILLIAMS

Applicant

and

MELVYN DOUGLAS DAWSON

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 2001, AT 3.25 PM

Copyright in the High Court of Australia

MR C.P. SHANAHAN:   May it please the Court, I appear for the applicant.  (instructed by Butcher Paull & Calder)

MR P.R. MOMBER:   If it please the Court, I appear for the respondent.  (instructed by Peter Momber)

GLEESON CJ:   Yes, Mr Shanahan.

MR SHANAHAN:   Your Honour, this application turns on the manner in which the Full Court interpreted the learned trial judge’s findings to conclude that the learned trial judge had not made an adverse finding as to the applicant’s credit, based on the video evidence which was adduced by the respondent at trial.  Perhaps the starting point in relation to he application is to identify the findings which are relied upon and they appear at paragraph 63 of the trial judge’s reasons at page 37 of the application book.  They appear under the legend, “Findings of injuries”.  The specific finding to which the applicant would take the Court is that:

Having seen and heard Mr Williams –

the applicant –

and watched the videos, I –

the trial judge –

simply do not accept that he is as disabled as he claims to be.  It is not for me to guess or speculate why he claims to be so disabled that he cannot work in his profession.

His Honour then goes on:

This finding colours my view the opinions of the medical and chiropractic practitioners who have accepted his complaints that he cannot work at face value.

It is the applicant’s submission that that is a typical adverse finding as to credit in a personal injuries matter in the sense that essentially what the trial judge is saying is that, “Having seen the plaintiff”, in this case the applicant - “having heard the plaintiff and having watched the videos, I simply do not believe him in relation to the extent of his injuries.

GLEESON CJ:   Would it have made a difference if he had said, “Having given consideration to the whole of the evidence”?  That would have been different?

MR SHANAHAN:   Yes.  The applicant says it would have been different and would rely upon Justice Kirby in Soulemezis at page – I think it is 261 which appears in the applicant’s book of written materials.  In fact, it is his Honour Justice McHugh at page 280 of Soulemezis which appears at page 43 of the applicant’s book of written materials where his Honour says on page 280 between lines B and D in the second full sentence:

Where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believed one witness in preference to another; it is not necessary “for him to go further sand say, for example, that the reason was based on demeanour” –

Then his Honour goes on:

The position will usually be different if other evidence and probabilities are involved.  A superior court, considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding –

It is the applicant’s respectful submission, in this case, that that is precisely what has occurred here because there were two errors, essentially.  The first is that the trial judge did not identify those parts of the video upon which his finding as to credibility rested and then the difficulty that the Full Court then experienced in seeking to elicit what the trial judge meant when he said:

Having seen and heard –

the plaintiff –

and watched the videos, I simply do not accept that he is as disabled as he claims to be.

In other words, taking Justice McHugh’s comments in Soulemezis, it was not simply a question where the issue was one of credibility based on competing evidence from one witness to another.  It was also based on other evidence being the video evidence adduced by the respondent and that is what takes it into the realm of the second portion of Soulemezis to which the applicant has taken your Honour because, with respect, his Honour Justice Parker then went on to rely upon collateral observations to try and elicit what was meant by the trial judge.

In fact, your Honours, perhaps if I could just take you to that particular passage.  His Honour Justice Parker in the Full Court in seeking to elicit what in fact the trial judge meant ‑ ‑ ‑

GLEESON CJ:   What page is this, Mr Shanahan?

MR SHANAHAN:   This is at page 61 of the application book, your Honours, at line 50.

GLEESON CJ:   Thank you.

MR SHANAHAN:   Your Honours, at line 50 on page 61, his Honour Justice Parker makes the observation which is accepted, with respect, that:

There are only two references to the videos in the reasons of the trial Judge.

It may be easy just to use the shorthand by referring to the trial judge’s paragraphs in his reasons.  They were at paragraph 14 at which the trial judge described what was in the videos and the passage to which the applicant has already taken your Honours at paragraph 63.  Essentially, what his Honour did in relation to the finding by the trial judge was to say this, “At paragraph 14, in his reasons, the trial judge describes what is in the video, therefore, when we go to the latter passage, the passage of which the applicant complains in this application, one has to understand the reference to the videos as simply being a reference to what was described at paragraph 14.

His Honour then goes on to say, “Well, what is at paragraph 14 does not impeach the applicant’s credit, therefore it cannot be said that what appears later on in the reasons at paragraph 63 is an adverse finding as to the applicant’s credit, based on the videos”.  With respect, your Honours, it is the applicant’s case that that simply cannot be the case because here what the trial judge has said is having seen the plaintiff, having heard the plaintiff and having watched the videos and then goes on to make the adverse finding as to credit.

In the applicant’s respectful submission, it must be speculative or inferential to suggest that what the trial judge meant when he said, or used the term “videos” at paragraph 63 was limited to what was said earlier on in his reasons.

GLEESON CJ:   Would it have made a difference to your argument if what he said was, “Having seen and heard Mr Williams and having watched the videos, the effect of which I have summarised above, I simply” et cetera?

MR SHANAHAN:   No, your Honours, because, effectively, what that would do would be to put the trial judge in a contrary position to his Honour Justice Parker because his Honour Justice Parker is saying, “Well, look, what is described at paragraph 14 is not adverse to the plaintiff” and in fact his Honour Justice Parker accepted on the appeal in the Full Court that the video actually supported the applicant’s case in that it was consistent with his examination‑in‑chief.

GLEESON CJ:   But the trial judge never said it was adverse to the plaintiff.  He simply recorded the fact that he had watched the videos.

MR SHANAHAN:   Your Honours, that really is where this application begins.  It is the applicant’s very respectful submission that that simply cannot be the case because this is a situation where we have a passage in the trial judge’s findings, findings as to injuries, which in any personal injuries trial must be the engine room, if you like, of the case.  It must be the place where the primary finding of importance in the case is made.  In such a case, of course, the credit of the plaintiff is absolutely crucial to the manner in which the case will unfold because it is often the case that in relation to a personal injuries case the credibility or the weight that is going to be given to the medical evidence is also based on the credit that is apportioned to the plaintiff in the way in which the trial judge looks at the balance of the evidence.

It is quite clear, with respect, in relation to paragraph 63 of the trial judge’s reasons, which appears again at page 37 of the application book, that that is exactly what this finding was:

Having seen and heard Mr Williams and watched the videos, I simply do not accept that he is as disabled as he claims to be.  It is not for me to guess or speculate why he claims to be so disabled that he cannot work in his profession.

Then the important bit, your Honours:

This finding colours my view the opinions of the medical and chiropractic practitioners who have accepted his complaints that he cannot work at face value.

GLEESON CJ:   The point that this case seems to raise is a question of the interpretation of the reasons for judgment of the trial judge.

MR SHANAHAN:   Your Honours, at one level it does in the sense that what the applicant would say is that any interpretation, any inferential reasoning adopted by an intermediary appellate court in relation to a trial judge’s reasons, where that process relates to a credibility finding, must be hedged about with the same caveats and prescriptions as apply to an appellate court when it is considering substituting its own findings as to credit for those of the trial judge, such as in the State Rail Authority Case and Earthline.

GLEESON CJ:   What is the point of general importance that you say this case raises?

MR SHANAHAN:   Than an appellate court cannot infer – cannot make an inference as to the meaning of a trial judge’s reasons in circumstances such as this where they go to the ‑ ‑ ‑

GLEESON CJ:   The moment you use the expression “in circumstances such as this” you relate it back to this particular case.

MR SHANAHAN:   I am sorry, your Honours.  Perhaps I can put it more clearly.  An appellate court, when considering a question of credit, cannot conflate various parts of a trial judge’s reasons to effectively substitute the trial judge’s finding as to credit with one of the appellate court’s own.

GLEESON CJ:   But they did not think they were doing that.  They might have been wrong about it, but it all comes down to a question of whether they misinterpreted these particular reasons of this particular judge in this particular case.

MR SHANAHAN:   It must be, your Honours, that the use of a video in relation to this kind of case is of general importance.  It must be that even though – it is always hard when one is dealing with a personal injuries case such as this to perhaps extract overarching principle from it because there is always a tendency, perhaps, to focus on it as an example of the mundane cases that come before courts day in and day out, but the central principle that is here is the way in which the Full Court has gone about interpreting the trial judge’s reasons, particularly in relation to a question of credit where the question of credit is absolutely central to the outcome of the trial, at first instance.

It cannot be, with respect, your Honours, that an applicant such as this particular applicant can reach the position where videos have been played in court, they have not been put to the plaintiff, they have not been put to the plaintiff’s medical witnesses, the trial judge has directed that the videos would not be used to ground an adverse finding as to credit without them having been put to the doctors.  They are ultimately put into evidence and then the trial judge, in his reasons, says that having heard and seen the plaintiff and having watched the videos he cannot be believed.

CALLINAN J:   You say everybody proceed upon the basis that the videos contradicted nothing that your client or any doctor said.

MR SHANAHAN:   No, that is not so, your Honour, with respect.  The way in which the trial proceeded – if I could take your Honours perhaps to that - it may be useful in just refining the point that has been put.

CALLINAN J:   Just before you do that, could you tell me how what I have just put to you is wrong?  You conducted the case, did you not, upon the basis that the videos did not reveal anything that went to your client’s discredit, is that not right?

MR SHANAHAN:   That is so.  That is correct.

CALLINAN J:   Yet, in the end, you say that the videos, in part at least, were used as a basis for discrediting your client.  That is really your complaint.

MR SHANAHAN:   That is so, your Honour, yes.

CALLINAN J:   You say that that is unmistakably clear because of his Honour’s reliance, the trial judge’s reliance upon the video, for an adverse finding, albeit, perhaps, it was not the only basis for that finding?

MR SHANAHAN:   Yes.  Your Honour, perhaps if I could just deal with ‑ ‑ ‑

CALLINAN J:   Is that right, though?

MR SHANAHAN:   I am sorry, your Honour?

CALLINAN J:   Is that right what I have put to you that ‑ ‑ ‑

MR SHANAHAN:   It is certainly correct that the applicant’s case proceeded on the basis that his evidence‑in‑chief was consistent with the video.  It is also the applicant’s case that the trial judge made an adverse finding based on the video.

CALLINAN J:   In part, at least, on the video.

MR SHANAHAN:   Yes, in part, at least.  I think your Honour had asked the question, initially, whether it was clear from the outset that the video was to be used in the sense that it was consistent with the applicant’s case and all I was going to do, your Honours, was simply to take you to the outset of the trial which is set out in the application book between pages 8 and 12 where my learned friend for the respondent made certain observations about the use to which the video might be put.

CALLINAN J:   You say that error was compounded by the trial judge stating right at the beginning that he would not rely upon the videos at all unless there were medical evidence explaining what they showed and the relevance of them.

MR SHANAHAN:   That is so, your Honour, yes.

CALLINAN J:   That is another basis for criticism.

MR SHANAHAN:   That is so.  It is also put, your Honours, that it was clear that the respondent intended to use the video in that way in the sense that in the answer to a series of questions at the outset of the trial, from page 8 onwards, my friend specifically indicated that to the court where his Honour Justice Healy, the trial judge, at page 8 of the application book, between lines 40 and 45, asked my friend:

What use am I going to make of them?

Referring to the video, and my friend says:

It’s a matter of credibility.  The defendant would say you are going to have to make a decision.

Then at page 9, betweens lines 25 and 40, his Honour:

I don’t see there’s any benefit of me having them then.

GLEESON CJ:   The judge seems to have been vigorously resisting the tender of these videos over a number of pages, partly on the ground that he was going to have to spend hours watching them.

MR SHANAHAN:   Yes, that is so, your Honour.  But I think, also, your Honour, to make the point that importantly the rule in Browne v Dunn required that they put to the doctors.

GLEESON CJ:   Yes, and he kept saying that.  He was very conscious of that.

MR SHANAHAN:   Yes, absolutely, your Honours, and there is no argument at all about that.  It may be that his Honour simply forgot in between – and no disrespect intended – forgot between the outset of the trial and when the reasons were drafted as to the direction that he had given in relation to the video but there is no doubt – and the essential point is this – there is no doubt that from the outset of the trial – and if I can just trespass on the Court’s time a little in relation to this – that at page 9 of the application book between the lines 25 and 40, there is certainly this question:

I don’t see there’s any benefit of me having them then.

Referring to the video.  My friend:

Well, because what you see is somebody who, despite his claim of total incapacity, is able to carry out physical activity which is contrary to what which he has told the doctors he can do and we say ‑ ‑ ‑

and then he is cut off by the trial judge:

That’s what I say:  it surely has to be put to the doctors to see whether it affects their assessment.

It seems quite clear from the way in which the case was conducted from the outset that the question of credit on the videos was live and that his Honour gave the correct direction, according to law, at the outset.

CALLINAN J:   There was only one hour of video, any way, was there not?

MR SHANAHAN:   There were nine surveillance videos, your Honour, and there was only a – I understand – only a representative sample that was ultimately played to the court.

CALLINAN J:   On page 11, he says, line 15:

There isn’t hours of video, sir.  There’s about an hour.

MR SHANAHAN:   Thank you, your Honour.

GLEESON CJ:   And, the judge was trying to work out how he could use the fast forward.

MR SHANAHAN:   Yes.

GLEESON CJ:   He does not seem to have warmly welcomed these videos.

MR SHANAHAN:   No, your Honour, he does not, but his reticence to receive them and his determination to communicate the rule in Browne v Dunn and the way in which the videos were utilised at trial all underscored the error that was made in the applicant’s respectful submission in his reasons in the way in which the Full Court dealt with them.

CALLINAN J:   At page 9 his Honour seems to have contradicted entirely what he ultimately did because at the bottom of the page, he says:

I can’t say whether that would affect him doing his work or not.

He was referring to looking at the video.

MR SHANAHAN:   That is so, your Honour.  Even more expressly, perhaps, between lines 40 and 50, his Honour:

I would have thought that if the doctors are expressing an opinion and their opinion is being challenged, then the rule in Browne v Dunn would require that their opinion be based upon the material which is in your possession.

There could be nothing clearer than that.  There could be nothing clearer than that.

GLEESON CJ:   No, but your submission is that he later forgot about the rule in Browne v Dunn .

MR SHANAHAN:   Well, apparently, your Honours, because that is what he said.  All that the applicant can do is rely on the reasons given by the trial judge.  If the trial judge’s reasons are not adequate - - -

GLEESON CJ:   But the relevant reasons are the words, “I have watched the video”.

MR SHANAHAN:   Yes.

GLEESON CJ:   That is it.

MR SHANAHAN:   Your Honour, in the applicant’s respectful submission, you have to look at those in the context.  You have to look at where they appear in the judgment.  It is clearly a situation where this is where the central findings of fact, of credibility, are being made in relation to this case.

CALLINAN J:   You say that on everything that the trial judge had said up until that point – and you did not know what he was going to say in his reasons for judgment – he disavowed, expressly, reliance on the videos, in any way, absent medical evidence in relation to them.

MR SHANAHAN:   That is so, your Honours, and he did not have it but he still made the adverse finding that he suggested was not open.

CALLINAN J:   Accordingly to what his Honour had said earlier and, indeed more than once, he was not going to have any regard to the videos at all, for any purpose.

MR SHANAHAN:   Your Honour, with great respect, there is no doubt at all, and I think the applicant has freely conceded, that the trial gave the appropriate directions at the outset of the trial but there is absolutely nothing in the trial judge’s reasons to suggest that he applied the law, as he set out at the outset of the trial, when he came to determine his findings in relation to the disposition of this matter.

CALLINAN J:   I am trying to help you.  I am suggesting to you that on one view the trial judge’s reasons ambushed you because everything that had been said up to then was a disavowal of reliance of any kind on the videos unless the doctors dealt with them and the doctors were never asked to do so.

MR SHANAHAN:   That is so, your Honour, yes.  Your Honours, I am conscious that my time is running out.  Can I simply make the observation on behalf of the applicant as well that his Honour Justice Kirby in Soulemezis makes it quite plain at page 261 - and I will not necessarily read from the passage - that if appellate courts do not require the reasons of a trial judge to meet the rational and the reasons for having – effective reasons by a trial judge in an appellate situation then there is no sanction in relation to these values and, effectively, this type of case will continue to come before this Court and that is the central reason why this case is an important case.

Equally, in terms of its special characteristics, there is no clearer case in my experience, limited though it may be, that of a Full Court – an intermediary appellate court – conflating two parts of a trial judge’s reasons to effectively reach an alternative or substituted finding as to credit without any reference to the type of prescriptions that are set out in Earthline.  They are the submissions of the applicant, your Honours.

GLEESON CJ:   Yes, thank you.  Yes, Mr Momber.

MR MOMBER:   If it pleases the Court, some time before the commencement of the trial in the District Court before Justice Healy I, acting for the defendant, contacted the plaintiff’s solicitor and advised that there were a number of videos that the defendant intended producing at the trial.

CALLINAN J:   They were discovered, we know that, is that not so?

MR MOMBER:   They were discovered.  Yes, and a consequence of that an inspection of them took place by counsel acting for the plaintiff prior to the trial.

CALLINAN J:   That is not the point.  The point in the case, it seems to me, any way, is this:  did the trial judge rely upon something on which the trial judge said reliance would not be placed on unless certain conditions were fulfilled, that is, medical opinion given in relation to them, when no such medical opinion was sought or adduced?  That seems to me to be the question.

MR MOMBER:   Yes.  There is no evidence that he relied on them any more than the fact that he observed them and that he commented on the fact he observed them.

GLEESON CJ:   No, just a minute.  There is.  He summarised their effect.

MR MOMBER:   Yes, he summarised his observations.

GLEESON CJ:   He summarised their effect in paragraph 14 that we have been referred to.

MR MOMBER:   Yes.

GLEESON CJ:   That appears at the bottom of page 61 and at the top of page 62.

MR MOMBER:   Yes, that is right.

GLEESON CJ:   So, if he had added to the sentence that has attracted attention the words, “Having seen and heard Mr Williams and watched the videos, the effect of which I have summarised a little earlier” we would have known exactly what he took from the videos.

MR MOMBER:   Yes.  The point, however, is, we would say, more obvious in answering – or the question is more obvious in answering when the nature of the videos were understood by those who saw them and those who presented them and we would say that the appellant in fact relied on the videos and the respondent made no mention of them after showing them to the court.

GLEESON CJ:   As I understand it, the evidence of the appellant was given in the light of his knowledge of the existence of the videos and he gave evidence which explained how it was he was able to do what was seen in the videos.

MR MOMBER:   That is right, and it was not only that, both - at the commencement of the trial and in the concluding address, the appellant’s counsel, Mr Clyne, not only referred to the videos and what was contained in them but relied upon them - and that is to be found at page 21 of your material – in detail.

GLEESON CJ:   Just give us an opportunity to look at page 21.

MR MOMBER:   It is from about line 12, your Honour.

GLEESON CJ:   This is counsel for the appellant addressing, is that right?

MR MOMBER:   Not this counsel.  It was Mr Clyne.

GLEESON CJ:   This is the trial counsel for the applicant?

MR MOMBER:   Yes.

GLEESON CJ:   What does he mean “of course, I had already seen the video”?

MR MOMBER:   He had seen them previously, as I indicated, your Honour.

GLEESON CJ:   Counsel?

MR MOMBER:   Counsel for the appellant had seen the videos previously and he, in fact, introduced their existence to the trial judge when he opened his case.

GLEESON CJ:   What do you mean by that?

MR MOMBER:   He referred to them.  If I can take you back to page 6 of your material at about line 12, again.  He refers to what the appellant could then do.  He says:

Otherwise, in terms of his personal life, he used to play tennis very regularly, used to do a lot of running and so on.

GLEESON CJ:   Now, what does he mean when he says on page 6 at line 20:

I have seen a selection of them.  I don’t think there’s any dispute or issue on those.

What does that mean?

MR MOMBER:   That relates to the agreement that I had entered into with counsel prior to the commencement of the trial

GLEESON CJ:   What agreement?

MR MOMBER:   The agreement was that the videos could be shown to the trial judge, as I intended doing, as in fact occurred.

GLEESON CJ:   The person who seems to have been resisting these videos was not your opponent, it was the trial judge.

MR MOMBER:   That is right, for the reasons I think your Honours have clearly seen, he needed the fast forward and he was not sure he could get through it quickly enough.

CALLINAN J:   It might have been very boring but it was only an hour and we all have to sit more than an hour being bored, I can tell you that.

MR MOMBER:   Yes.

GLEESON CJ:   But, both counsel appear to have been in heated agreement that these videos should go in and the trial is jibbing at it.

MR MOMBER:   Yes.  The primary rule of Browne v Dunn that there be no ambush of a witness, we would say, is removed by this.

CALLINAN J:   I do not think it is a Browne v Dunn point, but I am concerned that the trial judge did more than give an intimation.  He made a declaration.  The trial judge made a declaration – him or her, by the way, the trial judge?

MR MOMBER:   Him.

CALLINAN J:   Him.

MR MOMBER:   Yes.

CALLINAN J:   The trial judge made a declaration of what he intended to do or, more importantly, intended not to do in relation to the videos and, when it came to the point, at least arguably, the trial judge did something quite different from what he had said he intended to do.

MR MOMBER:   Yes.

CALLINAN J:   That is the point I want an answer to, if there is one, because it seems to me that it is inescapable that the judge did, to some extent, and it may have been to a very minor extent, rely upon the videos.  Perhaps it does not make any difference in the end, I do not know, but I do not think it can be escaped that there was some reliance adverse to the appellant by the trial judge upon the videos in circumstances in which his Honour said he would not rely on them.

MR MOMBER:   That may be a matter that would concern you because of the way it has been expressed but the situation was that the parties agreed, prior to the trial, how they should be presented.  The judge, at first instance, when looking at the matter, had not made his mind about ‑ ‑ ‑

CALLINAN J:   No, the judge had made up his mind about a matter.  The matter that his Honour made up his mind about was that he would not use or rely or obtain any assistance from the videos at all without hearing medical evidence in relation to them.  Well, he never heard medical evidence in relation to them, is that right?

MR MOMBER:   No, that is correct.

CALLINAN J:   And his Honour never said at any stage before he gave his reasons that he had changed his mind and that he would rely upon them.

MR MOMBER:   No, he may not have given reasons why he changed his mind, if he had made his mind up.

CALLINAN J:   No, it is not a question of giving reasons.  He gave no intimation that he had changed his mind about it before he gave his reasons, is that not right?

MR MOMBER:   That is true, but for the fact that he accepted the videos into evidence and looked at them.  You see, the parties had agreed and in ‑ ‑ ‑

GLEESON CJ:   And both sides were relying on the videos.

MR MOMBER:   Yes, more so the appellant rather than the respondent because the appellant said, “Look” – as I have pointed out at – as is said at page 6 and is found in the summing up at page 21 by the appellant’s counsel at the time, not only did he say the videos confirmed exactly what he said he could do in his leisure time which is to “walk briskly and jog a little”, but:

There’s nothing in the videos which casts doubt on his evidence‑in‑chief or on his cross‑examination.  There’s nothing that he said before you that was put into doubt in the video evidence.

Then:

The only point I did pick up in the video was that when he did pick up his newspaper, particularly on the first occasion – I think it was 27 January 1998 – he certainly bent his knees to do so and did on every other occasions.  There was no bending from the waist.  Can I comment on the defendant’s case because my friend has really said a lot today about motives –

So, he has there not only relied on the videos to confirm what he said in opening was that the plaintiff was totally consistent in the way he was able to act in his leisure time but that he took something from the videos in that indicated injury, namely, that he bent from the knees and not from the waist.

So, his Honour, at first instance, had been told at the outset that the videos were not inconsistent with the story that the plaintiff/appellant had given to his doctors or to any other doctors but that they simply showed as – Mr Justice Parker said, they showed the situation where -

Thus the issue at trial was not whether he could do the things revealed by the video, but whether there were times when he could not -

Now, that was not an issue raised by the video.  That was not an issue that was in contravention of his position.  It simply showed him doing the things he said he could do and at no time during the course of the trial was objection taken by counsel to the videos being produced or was there any prevention by either the trial judge or the defence in allowing any witness, including the plaintiff, including any of his doctors, to see the video if he wished and wished to comment on them, but of course he would not wish – one can see why there was no objection, because the appellant sought to rely on the videos to assist with his case.  That is clear.

GLEESON CJ:   Yes.

MR MOMBER:   An analysis of the effect of the videos in terms of the other material that was presented to the trial judge can be found commencing at page 63 in Mr Justice Parker’s decision and I would take your Honours to paragraph 25 simply to re‑emphasise the point that he also concluded:

Thus the videos do not appear to contradict the evidence of the appellant in any material respect or reveal physical activities significantly different from those identified in the appellant’s own evidence.

Indeed, as counsel then appearing put to the trial judge in his opening anticipating the videos would be tendered:

“…I have seen a selection of them.

He then went on with the reference that I have already taken you to. 

So what the respondent says in conclusion is that the video evidence was of no moment in terms of adversely affecting the appellant’s position in the trial, that prior to the trial he had made a decision as to how that evidence would be produced to the court and to whom or who it would not be shown.  That was his decision, not the respondent’s and not the trial judge’s.

What the appellant seeks to do today is to rely on the opening observations of the trial judge who, when presented with the proposition of presenting videos, thinking quickly, made observations which he later recanted from when the videos were presented to him and when the appellant relied on them.  One can safely conclude that in looking at the videos and in referring to them in his decision his Honour did not rely on them in any adverse sense but even if he had he was entitled to do so because the parties and the appellant, particularly, put himself at risk by allowing the trial judge to look a the videos in the circumstances that he did.

What the appellant now seeks to do is make it the responsibility of the defendant not only to produce the videos but to cross‑examination the appellant’s witnesses, whether he wants to or not, and the appellant in order to satisfy some burden he does not have.  I ask you to dismiss the appeal.

GLEESON CJ:   Yes, Mr Shanahan.

MR SHANAHAN:   Thank you, your Honours.  There are three short matters in reply.  There was an affidavit by trial counsel for the applicant which was before the Full Court and the appeal before the Full Court was conducted on the basis of that affidavit which can be made available to the Court.  I have copies with me today, if necessary, to the effect that the only agreement between counsel at trial, prior to trial in relation to the videos, was that they would not need to be formally proved.

The Court does not need to look at the affidavit, in fact, because all one has to do is make reference to the passages at the outset of the trial – the transcript – where it is quite clear that his Honour the trial judge is asking my friend, “What use can I make of these videos?  What can I do with these videos” and there is no account by my friend of any decision by the applicant, or any agreement with the applicant’s trial counsel to any use that might be made of the videos.

GLEESON CJ:   Mr Shanahan, on page 21, Mr Clyne seems to have been using the videos in his favour.

MR SHANAHAN:   Yes, he does.

GLEESON CJ:   Now, if in his reasons for judgment the trial judge had not mentioned that he had watched the videos, you would be here complaining about the fact that he did not take the videos into account.

MR SHANAHAN:   I note that that is what his Honour Justice Parker said in his reasons in the Full Court and the answer to that proposition is this that the case by the applicant, from the outset, was always that the videos corroborated the plaintiff’s evidence‑in‑chief.  In fact, that is what everyone has found.  What has not come out and what my friend has not alluded to is the fact that no one has taken account of the fact that all of this video, the video that was produced, all corroborated what the applicant said.

GLEESON CJ:   I know, but the trial judge had to have mentioned that he had watched the videos because you were relying on them.

MR SHANAHAN:   Yes, no argument.

GLEESON CJ:   You would be here saying he has failed to take into account a relevant consideration.

MR SHANAHAN:   No, I accept that, your Honour, in the sense that there is a description of what was on the videos clearly at paragraph 14 and if that is all the trial judge had done there would be no problem.  The other points that need to be made in reply – my friend says, “Well, the applicants relied on the video”.  Well, of course, the applicants relied on the video because that was the case from the outset.  It was always the case that the applicant could rely on the video.  What the applicant is saying is simply that the respondent could not rely on the video to ground an adverse inference in the event that the direction given by the trial judge had not been complied with.

If I might just make this very brief observation in relation to Hughes.  I note that Hughes v National Trustees Executors & Agency Co of A/asia does not appear in the list of the applicant’s list of authorities but I would

seek leave to rely upon it to this extent, and I do have a copy which I can make available to the Court, if necessary.

GLEESON CJ:   If you would just tell us the point you want to make.

MR SHANAHAN:   The passage by his Honour Justice Gibbs at page 153 of the Commonwealth Law Report:

There are no doubt some cases in which inadmissible evidence, having been admitted, maybe treated as evidence for all purposes; for example, where one party by his conduct at the trial has led the other to believe that evidence, although hearsay, may be treated as evidence of the facts stated, and the other in reliance on that belief has refrained from adducing proper evidence, the former party is precluded from objecting to the use of the evidence to prove the facts stated.  However, in general –

and this is the passage the applicant relies upon -

it is the duty of a judge to reach his decision on evidence that is legally admissible, and to put evidence only to those uses which the law allows.  When a statement is admitted, not as evidence of its truth but simply as original evidence, the mere fact of its admission cannot enable it to be given an additional probative value which the law denies it.

It is the applicant’s central submission this afternoon that effectively what the trial judge did at the outset of the trial was to set out what the law allows by way of the use of the video in this case and what the trial judge did in his reasons was to use the video in a manner which is set outside those parameters.  They are the applicant’s submissions, your Honours.

GLEESON CJ:   Thank you.

The applicant has submitted, amongst other things, that the trial judge, by the intimations he gave at the time of the tender of the videos, indicated that he would take a course different from the course he ultimately took when he came to give judgment.  If we had been persuaded that the trial judge relied upon the videos to resolve a real controversy between the parties in a manner adverse to the applicant, then a ground for special leave would have been made out.  However, for the reasons given in the Full Court, we are not persuaded that such a miscarriage of justice occurred.

The application is refused with costs.

AT 4.04 PM THE MATTER WAS CONCLUDED