Wilson v Bauer Media Pty Ltd & Anor

[2018] HCATrans 238

[2018] HCATrans 238

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M103 of 2018

B e t w e e n -

REBEL MELANIE ELIZABETH WILSON

Applicant

and

BAUER MEDIA PTY LTD (ACN 053 273 546)

First Respondent

BAUER MEDIA AUSTRALIA PTY LTD (ACN 160 041 681)

Second Respondent

Application for special leave to appeal

BELL J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 16 NOVEMBER 2018, AT 9.30 AM

Copyright in the High Court of Australia

MR M.J. COLLINS, QC:   May it please the Court, I appear with my learned friend, MS R.L. ENBOM, for the applicant.  (instructed by Corrs Chambers Westgarth Lawyers)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR S. MUKERJEA for the respondents.  (instructed by Johnson Winter & Slattery)

BELL J:   Yes, Mr Collins.

MR COLLINS:   Your Honours, there are two special leave points, in our submission.  First, this case, in our contention, involved a glaring departure from the Court of Appeal from the principles relating to appellate restraint in the review of factual findings which have been repeatedly emphasised by this Court in the line of authorities that includes Warren v Coombes and Fox v Percy. 

To put it crisply, in our submission, the Court of Appeal sidestepped the guidance which has been given by the Court in relation to appellate restraint.  It did so by characterising the findings it was reviewing as being the result of purely inferential reasoning and then, having done so, considered itself freed from any further appellate restraint in respect of all other facts found by the trial judge. 

In our submission, on a reading of the judgment what then happened is the Court of Appeal went on to review and reverse a host of relevant factual findings even where they would not have failed the test in Fox v Percy because, for example, they were uncontested at trial.  In some respects, even the subject of agreement in a summary of agreed facts that was put before the Court, in many respects, dependent upon direct evidence from witnesses whose testimony was accepted by the primary judge ‑ ‑ ‑

BELL J:   Can I just pull you up there if I may, Mr Collins?  When you say that in some instances the inferences were based on evidence accepted by the primary judge given by witnesses for the applicant, is that a reference to the evidence of Ms Jackson and Mr Principato?

MR COLLINS:   More than that.  It is the evidence of Ms Jackson, Mr Principato, the plaintiff herself ‑ ‑ ‑

BELL J:   Yes.

MR COLLINS:   ‑ ‑ ‑ one of the respondent’s witnesses, a Ms Overington, Mr Hugh Sheridan. 

BELL J:   Just looking at the evidence of Mr Principato and Ms Jackson, as I read their Honours’ reasons, there was no issue of not accepting his Honour’s estimate that both were honest witnesses.  Rather the Court of Appeal concluded that their evidence simply did not support the findings that the trial judge made.

MR COLLINS:   Yes.  Can I address it just by identifying what we say is the error which then led to the way in which the evidence of those witnesses was assessed.  In our submission the critical principle is this, that an intermediate appellate court is in as good a position as a trial judge to draw inferences from uncontested evidence or factual findings established on the evidence and made by a trial judge. 

Here, what the Court of Appeal did was it reviewed the facts which had been established by the trial judge without putting them through the Fox v Percy prism, instead, finding its own facts and then drawing inferences from those facts.  In our submission, what the Court of Appeal ought to have done is identify the factual substratum for the ultimate conclusions reached by the trial judge and then reviewed those facts by reference to the Fox v Percy standard.  Can I just make good the proposition by going directly to the reference in the judgment?

BELL J:   Yes.

MR COLLINS:   If your Honours look at the primary judge’s judgment at paragraphs 216 and 217, at 216 the primary judge draws an inference that the plaintiff had lost an opportunity to star in feature films following the release of Pitch Perfect 2 and in 216, 217 his Honour identifies three facts which support that inference.  The first - and this is at lines 11 and 12 is:

that an actor in the circumstances of -

Ms Wilson:

was highly likely to receive offers of roles in feature films as a lead or co‑lead actor -

as a result of the success of Pitch Perfect 2.  That is the first fact.  The second fact, which appears at lines 21 to 23 is that that conclusion was consistent with what had happened to the plaintiff after the success of two earlier films, Bridesmaids and Pitch Perfect.  The third fact is in paragraph 217 at about line 35, that:

There was no basis to suppose an absence of suitable roles -

in the period after the release of Pitch Perfect 2.  Now the primary judge, in our submission, inferred from those three facts that the plaintiff had established that there was a relevant opportunity.

BELL J:   The Court of Appeal considered that an inadequate foundation.  The Court of Appeal considered one would need to look for evidence of some project that had been on the shelf and, as it were, taken off the shelf in light of the grapevine effect, in respect of the publication.

MR COLLINS:   In our submission, with respect, your Honour, therein lies the error.  The Court of Appeal was in as good a position as the trial judge to determine whether the three facts identified by the trial judge supported an inference of the kind the trial judge drew.  If the Court of Appeal was – and, with respect, they plainly did – what the Court of Appeal did was to interfere with the three primary facts found by the trial judge without submitting those primary facts to any degree of appellate restraint. 

We can point to some egregious examples of it, but crisply that is what we say is the error.  The Court of Appeal was in as good a position as the trial judge to determine whether the inference flowed from those three facts.  In order to interfere with those three facts the Court of Appeal needed to pass those three facts through the prism of Fox v Percy and it did not do so.

Take, for example, to deal with your Honour’s question about Mr Principato – the trial judge accepted the evidence of Mr Principato.  Paragraph 200 in the judgment below is perhaps the clearest encapsulation of the evidence which the trial judge accepted.  This was evidence from a direct witness.  At 200:

His opinion, which I accept, was that there was no shortage of possible projects –

and there is then an analysis of the reasoning given by the witness supporting that opinion.  Now, that evidence from Mr Principato, with respect, was not shown to be wrong by uncontested evidence.  It was not shown to be glaringly improbable and it was not shown to be contrary to compelling inferences.  The court did not even apply that test to its review of what Mr Principato said.  Rather, the court said – and one sees this in the Court of Appeal judgment at 458:

insofar as the inferences rested upon the evidence of Mr Principato . . . his evidence was very weak.

That, with respect, is not an exercise of appellate restraint.  That is the Court of Appeal saying that it might have come to a different view in respect of the evidence given by that witness.

KEANE J:   Well, not quite.  If you look at paragraph 432 on page 203 it says that Mr Principato explained the coincidence between her success in the absence of further film offers was outside his experience and then their Honours conclude he claimed no expertise with respect to cause and effect.

MR COLLINS:   Yes, but, with respect, your Honour, the relevant conclusion here is not on causation.  Your Honour is quite right- the trial judge did not rely on Mr Principato with respect to causation.  The trial judge relied on Mr Principato with respect to the existence of opportunity.

KEANE J:   But you are talking about special damages.  Whenever has special damages been established by proving there has been an opportunity that has not been able to be taken up?

MR COLLINS:   There are three matters, with respect, your Honour.  There is the existence of the opportunity and here the trial judge accepted the direct evidence from Mr Principato, which we say he was entitled to do, and the intermediate Court of Appeal ought not to have interfered with it unless it was satisfied that his evidence on that point was plainly wrong, glaringly improbable or contrary to compelling inferences.  There was the opportunity, there was the loss of the opportunity and then there was the question of causation. 

Now, on the question of causation the Court of Appeal, with respect, made a further error.  It is sufficient in a case of this kind, as we learn from Chakravarti at paragraph 177, for the plaintiff to establish on the balance of probabilities that the publication of the respondent’s articles was a cause of her loss.  What the Court of Appeal did was to speculate as to confounding causes and then conclude as a result of its speculation as to those confounding causes that the plaintiff had not established causation.

With respect, that was a plain error.  It was sufficient for the plaintiff to establish that the publication of the articles was a cause on the balance of probabilities.  Everything else went to the quantification or the discount factor to be applied to the quantification exercise.  So we say, with respect to Mr Principato, the trial judge accepted his direct evidence on the question of opportunity and it was not shown to be wrong.  We say the same with respect to Ms Jackson.  One sees this at paragraphs 4, 5, 9 – I am sorry, at 460.  At 460 the Court of Appeal concludes that Ms Jackson’s evidence needed to be approached with some caution.

Now, if your Honours grant special leave will demonstrate why the factors underlying that, with respect, are untenable.  But, for present purposes, the point we make is that the trial judge had the benefit of hearing the evidence of Ms Jackson and he accepted it and it has not shown to be wrong by uncontested facts, incontrovertible evidence or being glaringly improbable or contrary to compelling inferences.

BELL J:   But again, Mr Collins, I do not understand their Honours’ reference to the need to approach the evidence with some caution to be any reflection on his Honour’s acceptance of Ms Jackson as a witness of truth, but rather to the weight that was given to her evidence in light of the matters to which their Honours make reference in 460 to the earlier passages in their analysis.  It is one thing to speak of the trial judge’s advantage in relation to assessment of the reliability and the credibility of evidence, and it is another thing to look to the inferences that acceptance of that evidence fairly supports.

MR COLLINS:   The difficulty, with respect, your Honour, is that here the Court of Appeal was remaking or refinding the facts upon review of the whole of the record of the trial, rather than conducting a review of the findings of fact made by the trial judge that were relied upon to support the inference.  The trial judge relied on three facts in support of the inference and nowhere in this judgment does one find the Court of Appeal subjecting those facts to the rigours of the appellate restraint required by Warren v Coombes, Fox v Percy and so on.  That is the error to which we point. 

I put it as crisply as I can.  The Court of Appeal was in as good a position as the trial judge to determine whether the facts established by the trial judge led to the inference that the trial judge formed, but what the Court of Appeal did was not confine itself to the facts found by the trial judge, established by the trial judge.  Rather, it conducted its own fact‑finding exercise and made a raft of findings which departed in radical respects from the findings made by the trial judge, on each occasion not submitting them to the rigours of appellate restraint required by those authorities of this Court. 

Can I point to some more egregious – just a couple of matters which we say are egregious.  If your Honours go to paragraph 477 in the Court of Appeal judgment, the Court of Appeal here relies upon a letter dated 7 July 2015.  Now, that letter was tendered at trial as part of a bundle of documents.  It was never put to a witness in the course of the trial.  It was not relied on by either party in submissions to the court.  It is not referred to in the judgment of the trial judge.  It was not put in the appeal book before the Court of Appeal.  It was not the subject of submissions before the Court of Appeal. 

After the Court of Appeal reserved its judgment, the parties received a letter inviting them to make submissions in respect of that letter because, in the terms of the court’s email, it might be relevant.  The parties were not told how the Court of Appeal proposed to rely upon it and in the judgment we see that significant reliance is placed on it, not just in paragraph 477 but again in paragraph 487, where, with respect, the reasoning is also unsound.  Can I go to a further matter ‑ ‑ ‑

KEANE J:   Well, that is evidence that people who were said to be leading executives at Universal Studios thought nothing the worse of her, in July.  Your criticisms may have some force, but it raises for consideration the point that we would have to address if the matter comes here and that is the strength of the case, that the special damages were proved.  Now, there, in paragraph 477, their Honours are referring to people who were said to be executives ‑ film executives who plainly did not, at least so far as that evidence is concerned, think the worse of your client because of the defamation. 

But is not the more fundamental point, if the case comes here, in terms of its prospects of success, just simply that so far as the grapevine effect is concerned, the people on the grapevine who make the decisions about production and engaging actors and actresses, there just is not any evidence from any of those people who actually make the decisions that this defamation – these imputations are impinged on their consciousness at all. 

MR COLLINS:   There are two points, with respect, Justice Keane.  First of all, our client was deprived of the ability to explain that letter and that letter has nothing to do with the availability of ongoing opportunities on new projects which is the nature of the damages claim.

KEANE J:   It is not about opportunity, it is about the effect, the actual effect of the defamatory material on the people who actually make the decisions about production. 

MR COLLINS:   There is nothing, with respect, unusual about that.  That was precisely the situation in Chakravarti in which this Court reversed a decision of the Full Court on that precise basis that there had not been any direct evidence of a causal connection between the publication of the document in that case and the plaintiff’s subsequent loss of employment opportunities.  Our second special leave point is that on the analysis of the Court of Appeal, the bar has been raised excessively high, well beyond that established in Chakravarti.

BELL J:   Chakravarti was the employee of the State Bank of South Australia, was it? 

MR COLLINS:   It was an employee case where ‑ ‑ ‑

BELL J:   Yes, and following the extensive publicity in South Australia associated with the collapse of the State Bank the evidence was of difficulty in obtaining employment after he lost it with ‑ ‑ ‑

MR COLLINS:   Two things:  the plaintiff lost his job two days after publication of the letter but no one from the employer was called – a matter which the Full Court thought was fatal, this Court reversed; secondly, he struggled to find work afterwards.  No other plausible explanation was pointed to.  The Full Court again had rejected the special claim damages on a lack of evidence.

BELL J:   Mr Collins, here we are looking at a publication in Australia and a consideration of the grapevine effect in relation to employment opportunities in the acting industry in America.  Neither of the witnesses called to speak on that subject were aware of the publication.

MR COLLINS:   We say that is a matter of absolutely no moment at all.  The evidence was that the sting of – and this was an agreed fact before the court ‑ ‑ ‑

BELL J:   I withdraw that, Mr Collins.  I should not have said “not aware of the publication”, not aware of the allegations and the sting of the publication.

MR COLLINS:   In our submission, that is a matter of no moment at all.  The uncontested evidence was that the sting of these publications was transferred instantaneously to the United States.  It was the subject of discussion on national television programs, a number of them, and on radio.  There was evidence from two Los Angeles based witnesses that they had heard the sting of the articles, including one of the defendant’s own witnesses and there was evidence from Ms Jackson and Mr Principato that it was a mystery as to why this plaintiff did not continue to get work in the aftermath of the publications.  In Ms Jackson’s case she gave, in our respectful submission, important evidence about how Hollywood works.  She said you never get a direct answer in Hollywood.  No one ever says no.

BELL J:   To say everyone is immensely polite and you never get a direct answer is not to address the fact that persons whom one would expect to have heard the sting because they were in the heart of the industry, her agent and a person whose job it was to advise people about how best to promote their talent within that industry, had not heard the sting of these defamatory imputations.

MR COLLINS:   The trial judge dealt with it, with respect, correctly.  He weighed the absence of evidence from those two witnesses against the mass of evidence of the grapevine effect of the kind which I have just alluded to and he said he preferred the weight of the grapevine evidence.  He gives it quite crisply in paragraph 244 of his judgment.

Can I say, with respect – I see my time is up – the question of the grapevine effect and the effect of the publication of these articles – sorry, the coincidence of the absence of offers after these articles was the subject of agreed facts before the Court of Appeal in the supplementary appeal book, page 494, paragraphs 11, 32 and 33.

Paragraph 11, at the foot of 494, deals with the coincidence of a very substantial number of offers upon the release of the earlier two films - Bridesmaids and Pitch Perfect.  On page 495, paragraph 32 deals with an agreed fact in respect of the “sting of the articles spread instantaneously” and adoption of the terminology “international media firestorm”, which the Court of Appeal is critical of, said to be “just a flourish”.  It is not a flourish; it was the subject of an agreed fact.

Then paragraph 33 deals with the question of what happened after the release of Pitch Perfect 2.  The Court of Appeal simply reversed, made findings completely inconsistent with matters which were the subject of agreed facts.  I note my time has expired, unless I can assist further.

BELL J:   Thank you, Mr Collins.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, there are three matters with which I wish to deal if I could describe them shortly.  First of all is the question of the appropriate test the Court of Appeal was to apply.  The second is in relation to the basic facts and the shortage of evidence there was, in our submission, and the third concerns the damages for loss of opportunity.  May I deal with those three matters.  Those three matters arise, your Honours, although one might have thought by looking at the application in paragraph 7 at page 400 that there was only one issue, but that seems to have mutated somewhat. 

Your Honours, the first issue is that, in our submission, the argument as to the appropriate course to be taken by intermediate courts of appeal on appeals by way of rehearing in relation to findings of fact is just erroneous.  May I say in that regard those principles were recently referred to by the Court in Minister for Immigration v SZVFW, which is behind tab 2 in the volume of materials we have given to the Court.  I just wanted to refer to the issue there being dealt with most fully by Justice Gageler and to some quotations from his reasons.

You will see at page 722 in paragraphs [29] to [30] he deals with what is to be done on appeal by way of rehearing and then, importantly your Honours, the last half of paragraph [31] going to the top of the right column and then, again importantly, paragraph [32], the Court:

“is obliged to conduct a real review of the trial . . . and of [the] judge’s reasons”.  The appellate court “cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions”.

Your Honours will see in the footnote reference to Dearman v Dearman, a case only 110 years old, I think, and the reference ‑ ‑ ‑

BELL J:   One could add Robinson Helicopter.

MR JACKSON:   Yes, indeed, your Honour, and could I say that one sees importantly too in the quotations from Warren v Coombes at page 725, you will see in the passage quoted at the bottom of the left column a reference to inferences, but then when one goes to the top of the right column:

The duty of the appellate court is to decide the case - the facts as well as the law –

and your Honours will see the last four lines of that paragraph.  This issue was one that was dealt with at some length by Justice Kirby in a judgment with which the other members of the Court seemed to agree and has been followed in State Rail Authority v Earthline Constructions Pty Ltd.  That is behind tab 3. 

The particular passage to which I wish to refer, your Honours, is at page 610 in his Honour’s reasons between about lines 25 to 30 where, referring to the fact that it had been said that Dearman v Dearman was the first case, he said the first case that actually arose was McLaughlin v Daily Telegraph Newspaper Co and your Honours will see from the quotation to that, it deals with the fact that the intermediate appeal court can deal with questions of fact, and your Honours will see that in the passage from Coghlan quoted at the top of page 611.

BELL J:   Among the complaints here is the suggestion that this appellate review involved looking at matters that had not been in controversy, including the letter of 7 July and forming a conclusion adverse to the applicant on that, which really fell outside the scope of the controversy in the way the matter was conducted by the parties at the trial.

MR JACKSON:   Well, your Honour, could we say two things about that?  The first concerns the letter and your Honours will see that one surely does not have to have, in dealing with appeals, every possibility that it might occur pointed out to one when one is asked to say in answer to a letter from the court saying what do you say about this in a case that has been fully argued by competent counsel each side and where the issues are pretty clear from the discussion and the written submissions.  That is the first thing.

The second thing, your Honour, is that the passage about the agreed facts said there was evidence – the particular passage that was relied on by my learned friend did not say that is an agreed fact.  It said there was evidence and no more.  Could I come though, your Honours, to our second point?

BELL J:   Yes.

MR JACKSON:   The second point, your Honours, is this:  what one had was a case where the Court of Appeal, in the exercise of the functions to which we referred, had to arrive at its own conclusion.  Now, our learned friends have, we would submit, cherry picked parts of the reasons for judgment but there were six matters that were critical that the appellant’s case did not satisfy and, in this regard, what they set out to prove was that she had lost a substantial and not a merely speculative opportunity to be cast in lead or co‑lead roles in Hollywood films with the large remuneration for them.

The first is that the appellant – the applicant adduced no evidence of a single lead or co‑lead role that was available to be offered to her in the lost period that was suitable for her but which was not offered to her or was offered to someone else.  You will see that, your Honours ‑ perhaps in light of the time, I can just give your Honours the paragraph numbers, 507, 523 and 527 to 8.

The second, your Honours, is that by her own admission the roles which she accepted prior to publication of the articles were predominantly not lead or co‑lead roles, let alone roles in the order of $5 million to $6 million.  You will see that at paragraph 393, subparagraph (6).

The third is that she did not adduce evidence which established that the articles had reached, via the grapevine or otherwise, people in the relevant Hollywood circles ‑ the agents, casting agents, producers, studio executives ‑ that they had currency in those circles and that the nature of the articles were such as would cause people in those circles to shun and avoid her.  You will see that discussed, your Honours, in a number of paragraphs, 473 to 474, and there are other references, your Honours, but 515 and 520 to 521.

The fourth thing, your Honours, was that the only persons from relevant Hollywood circles whom she did call to give evidence, her agent and the expert witness, gave evidence that contradicted the inferences which she invited the trial judge to draw on the basis of the media firestorm.  Neither witness, your Honours, was aware of the existence of the articles at the relevant time, notwithstanding that they are both persons “in the know”.  You will see that at paragraphs 473 to 4, 488 to 490 and 515.

The fifth point, your Honours, is that the applicant’s argument on causation was that there was no other explanation for the absence of offers.  But there was evidence of at least four other plausible causes.  One was that she had been terminated from two films because, during the asserted loss period, she was said to be divisive.  Your Honour, I express no view on the correctness of it but that is what was said.  The trial judge accepted that was unconnected to the articles.  Secondly, she gave evidence that she instructed her agents to seek dramatic roles, whereas she had previously been known as a comedy act.

Thirdly, her agent gave evidence that she was moving into new territory, namely, lead or co‑lead roles to carry a film for $5 million to $6 million but that when she had raised the applicant’s name in discussions she was told, “We are not there yet” – that is at paragraph 442 ‑ and that, your Honours, is in the primary judge’s reasons at paragraph 209.  The primary judge overstated the position at paragraph 207 ‑or the primary judge’s statement of the position in her favour, at 207, has to be read with the conclusion at paragraph 209.  Finally, these points:  her expert gave evidence that another actress, Amy Schumer, was a competitor in the market for comedic roles, who was available at a lower fee – paragraph 259 in the Court of Appeal.

Your Honours, the sixth and last point I wanted to make in this regard was that there was evidence that contradicted the contention that she had been shunned and avoided in Hollywood and if I could just summarise that.  The first concern, the evidence of the retention of her role in Pitch Perfect 3, the negotiation of lucrative box office bonuses for that role and the signing of a contract, by far the most lucrative role in her career ‑ that is paragraphs 500 to 501.

Secondly, there is evidence of development work on two major film projects, including one for the same film studio, New Line, for which she was presently, or then presently, engaged in work at the time the articles were published – that is paragraph 420 and 512.  There is evidence of extensive promotional work that the applicant performed for brands like British Telecom for fees greater than the fees she had attracted for most of her acting work prior to publication of the articles – paragraphs 409 and 513 to 514.

Your Honours, those six matters, in our submission, referred to were really central to the Court of Appeal’s ultimate conclusion that she had not proved on the balance of probabilities the existence of the claimed opportunity nor that the respondent’s articles had caused the loss of the opportunity.  And the Court of Appeal was correct in saying when taking the view that her case in relation to causation was in fact exceedingly weak, paragraph 526, and that the trial judge’s finding of causation was “glaringly improbable”, to use those words in paragraph 334.

Your Honours, could I move then to the third aspect, and the third aspect is the loss of opportunity – Andrews damages, as it is called, I think in the submissions.  The applicant has relied – and your Honours will see this at paragraph 35 of the application, page 407 of the application book ‑ on a notion that these damages, Andrews damages, should have been awarded to compensate for a decline in business.  The nature of damages of that kind was referred to by the Court of Appeal in its reasons at page 320, paragraphs 547 to 548.

Your Honours, the case of Andrews itself is referred to at page 322 and you will see the paragraphs 552 to 554 but the applicant’s claim in that regard in this case was rejected for the reasons which appear at page 331, paragraphs 573 to 577.  Now, your Honours, could I just go to those paragraphs for a moment.  The first is paragraph 573 and your Honours will see there it was claimed as an “alternative to special damages” and they had rejected a claim for special damages.  Then, your Honours will see about line 20, the judge “erroneously described the trajectory of success” of her career, overstated the effect of Ms Jackson’s evidence with respect to the likelihood of offers, et cetera.  You will see about line 30:

no evidence that any member of those groups was either aware of the sting of the articles or, if aware, took an adverse view of Ms Wilson as a result . . . We consider the judge overestimated the scale and impact of the grapevine effect.

Now, your Honours, I will not attempt to summarise all of that, could I just say this, if you look at the reasons given, the second group of reasons – paragraphs 575, the third group 576, then, your Honours, it is a case, in our submission, where the case for the applicant was one which had the deficiencies set out there and could we just say, your Honour, if one is looking to see where is the error made by the Court of Appeal in dealing with these matters which were fundamentally factual issues, was it to pick a figure out of the air when the applicant had not established the base facts which might inform it in doing so.  Case theories and broad assertions are fine but evidence is better.  Your Honours, could we conclude by saying this ‑ I am sorry, your Honours, I think I have a moment or two ‑ ‑ ‑

BELL J:   Do go on, Mr Jackson.

MR JACKSON:   May I conclude by saying this, your Honours.  In our submission, the so‑called special leave point – the approach to be taken by a court - an appeal court on a rehearing is without merit, is based on a misconception of the appropriate tests.  The Court has recently reaffirmed the appropriate tests and the Court of Appeal, in any event, did apply the correct test.

Secondly, the case, in our submission, is simply one where the Court of Appeal looked carefully at the evidence, rather too carefully, in our submission, for the applicant’s case and found that the case had not been made out.  Thirdly, the basis for any type of Andrews damages was simply not established and special leave should be refused.

BELL J:   Thank you Mr Jackson.  Yes, Mr Collins.

MR COLLINS:   Your Honour, my friend submitted towards the end that there was nothing in the special leave point in respect of the test recently stated by this Court.  Can I just establish why, in our submission, that is wrong?  My friend took your Honours to page 725 in the Minister for Immigration and Border Protection v SZVFW.  At paragraph [41] on page 725, Justice Gageler cited a well‑known passage from Warren v Coombes, the first sentence of which is the point which in our submission was departed from by the Court of Appeal:

Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.

Now, as recently as this Monday, the Court of Appeal in Victoria has referred to the decision in Bauer Media and stated the test relating to intermediate appellate review of factual findings in terms which depart from that in the passage from Warren v Coombes, in reliance upon the decision in Bauer in the Court of Appeal.  We sent a copy of this to your Honours I think yesterday or the day before.  It is the decision in Braham Investments v Charles Wantrup.  Do your Honours have that?

BELL J:   Yes. 

MR COLLINS:   If your Honours go to paragraph 10, the Court of Appeal began with citing paragraph 43 from Robinson Helicopter, and at the start of 11 said:

For a time there were different approaches on the issue of whether what the High Court had said applied to inferences drawn from findings of fact. 

The confusion was entirely of the making of the Victorian Court of Appeal because one sees in footnote 3, that all of the decisions cited are decisions of that court.  Then it says:

It has now been resolved, although not by the High Court, that it does not –

referring to the decision below.  Then if your Honours read the following sentence:

Instead, in general, an appellate court is in as good a position as the trial judge to decide the proper inferences to be drawn from facts which are either undisputed or found as facts on the evidence. 

Now, that is not the passage from Warren v Coombs and, with respect, it is a misstatement of the test – the guidance given by this Court repeatedly.  If we are right on our first special leave point then the decision below, with respect, is already leading to further error in the Victorian Court of Appeal.  That is the first point.

The second point concerns the submission that was put by our friend, which was rather to the effect - put by senior counsel at the trial that the plaintiff had in some way not skipped a beat.  Now, that was, with respect, contradicted by evidence which was uncontested and the subject of agreement and your Honours will see – I note that my light is on already - in the supplementary application book at pages 448, 449, the fact that there was no cross‑examination in respect of the trajectory at pages 462 and 462 of the supplementary application book, and a question put by the trial judge himself, which is reproduced at supplementary application book 468, line 20.

I am sorry.  I have gone very quickly because I saw the light.  I can develop it if it would assist your Honours.

BELL J:   Thank you. 

MR JACKSON:   Your Honours, may I have leave to say something in response to Braham, the case that my learned friend just referred to. 

BELL J:   Yes. 

MR JACKSON:   I will take just one moment in relation to it.  It was not referred to earlier, your Honours.  Your Honours, if one looks at that decision, the observations that are set out in paragraphs 10, 11 and 12 have to be read in the light of the statement at paragraph 12 and the task that the Court was actually engaged upon.  That task can be seen from paragraphs 227 onwards. 

The issues are summarised at paragraph 250 and, apart from an adequacy of reasons issue that does not matter for present purposes, they turn on credibility questions.  You can see that in paragraphs 251 to 253 and 258, and also, your Honours, at paragraphs 259 to 266, especially paragraph 266 it was a credibility case.

BELL J:   Thank you, Mr Jackson.  The Court will adjourn briefly to consider the future course of the matter.

AT 10.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.19 AM:

BELL J:   In our opinion, there are insufficient prospects that any appeal would succeed to warrant the grant of special leave.  Special leave is refused with costs.

AT 10.19 AM THE MATTER WAS CONCLUDED