Yevad Products Pty Ltd v Brookfield & Anor

[2006] HCATrans 53

[2006] HCATrans 053

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A49 of 2005

B e t w e e n -

YEVAD PRODUCTS PTY LTD (FORMERLY TRADING AS DAVEY PRODUCTS PTY LTD)

Applicant

and

IAN WALTER BROOKFIELD

First Respondent

SEPTIC PRODUCTS AUSTRALIA PTY LTD (IN LIQUIDATION)

Second Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 FEBRUARY 2006, AT 11.55 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR S.J. WHITE, for the applicants.  (instructed by Thomson Playford)

MR I.W. BROOKFIELD appeared in person.

HAYNE J:   Yes, Mr Walker.

MR WALKER:   Your Honours, if this case raises a point it is a point about the difference between the kind of investigation considered in Quade by contrast with Orr v Holmes about the nature of the impact, as it has been called in the arguments below, or the possible effect which may have been had upon the actual result had the material omitted from the trial been present at the trial. 

If there is a point in this case it is to raise the difficulty caused when the argument below and the decision below point to lines of inquiry without tracing through the ramifications in such a way as to be able to answer the relevant question, “Is there at least a real possibility that there would have been an opposite result?”

HAYNE J:   Can I just make sure I understand the basic facts.  The documents that were not discovered were job cards?

MR WALKER:   Yes.  That is one category but I am bound to say that though they were the most numerous, and in that sense might be regarded as most important, there was a memorandum by Mr Ashley White which assumes ‑ ‑ ‑

HAYNE J:   Which you say was either referred to or its substance was largely picked up in some other document that was discovered.

MR WALKER:   Yes.  Another eponymous memorandum of Mr David Gore, we say, had put all that into play already, but I am bound to say that in the arguments, the judgments below, the Ashley White memorandum does assume a very important position.

HAYNE J:   I understand that, but the job cards are not produced.

MR WALKER:   They are not produced.

HAYNE J:   In a case where the central complaint is one about fitness of the product.

MR WALKER:   The central complaint of the causes of action in question, yes.

HAYNE J:   The Full Court send it back for trial on that issue.

MR WALKER:   Yes.

HAYNE J:   What is the point?

MR WALKER:   Well, the point is that the job cards were looked at by the trial judge, the Full Court not differing from the trial judge in this regard, and it was found that as to their contact - and their existence, of course, had not been a secret, nor the possibility of the competitors of the respondents having been using our pumps - both the trial judge and the Full Court upon examining what could be gathered from the cards, far from finding that there was a real possibility of an opposite result, found that so far as the courts could take it the job cards were indicative of support for our case.

HAYNE J:   And that is the difficulty of the judge who does not know what is in the instructing solicitor’s file or counsel’s brief and what that might lead you to and why judges remain silent during cross‑examination but not during counsel’s argument.

MR WALKER:   Quite so.  The sound reasons why this Court has turned its face against examining all of those usually secret matters in areas such as, for example, incompetence of representation as a ground of appeal and the like, does not ‑ ‑ ‑

HAYNE J:   How is the first instance judge to know what consequences could be found to follow from having the job card records and being able to go off and talk to these people who were the subject of the job card records, for example?

MR WALKER:   Now, in our submission, the principled answer to that derives from the same kind of inquiry as must be had in an Orr v Holmes Case or in a proviso case in an ordinary civil appeal where there is a proviso attached to the statutory appeal by way of rehearing particularly where the error identified has been, for example, the admission of inadmissible evidence or the rejection of admissible evidence.  It is the same kind of inquiry and the principle to be gathered is that there is not to be a retrial with all the traditional terms of opprobrium to be attached to that event in the administration of justice unless it can be seen that what occurred by way of shortcoming in the attainment of perfection - and that is a usual, not unusual, course in litigation - is something that matters so as to require in the interests of justice a retrial. 

Where there has not been, relevantly, a degree of fault that assumed the same status as it did in Quade, another default in discovery case, the rule in Orr v Holmes, sometimes described as setting down a stringent test, requires some degree of materiality or confidence in the reviewing appellate Bench that there would have been a different result much higher than what obtained in this case.  We, of course, do not seek to challenge in any respect the finding in Quade’s Case as to what occurs in cases of default in discovery where it is just not possible to use, except with inverted commas - which do not help ‑ the word “innocent”.

We accept, as your Honours have seen in our argument, that we are not innocent in a sense that helps analysis but, in our submission, it is important that there be at least a real possibility as opposed to a speculative possibility.  In Quade’s Case, as in the other cases that were able to be considered as having been decided before Quade, the material in question is material that can be seen by reason of its tender or other forensic deployment, such as in cross‑examination, as to give rise to the kind of doubt about result, which then fits it within the mainstream of appellate ordering of a retrial ‑ be it civil or criminal – namely, that this interruption in the progress of a case from commencement to finality, interruption by forcing it to start again, should not occur unless it can be shown rather than speculated that there is the relevant level of possibility that circumstances require.

In this case the job cards in question were for customers whose use was found by the trial judge - so far as he could see from the extremely thorough hindsight look with all the edge to be gained from what was at stake in this application to set aside - what the judge found, starting at page 69 of the application book was that you could not have said that those job cards either tendered or as to their content otherwise deployed, did support the present respondent’s position.

Paragraph 280 - it was a bad start in relation to the undiscovered but now available material to be pored over by the present respondents.  It was a bad start, surely, when his Honour found that there could not even be:

any particular rate of failure experienced.

That was his finding at that stage.  He could not be satisfied of the cause of any of the failures.  In terms of comparability, of course, that also is a bad start as to a real possibility of an opposite result.  Then his Honour goes on to say that what he calls “the indication” to be gathered was experienced in circumstances which were the very circumstances which had led Justice Branson to dismissing the fitness for persons per purpose claim, that these were failures caused by a kind of use, which meant, in effect, that they were not, bearing in mind what had been made known or not made known by respondents to applicant about the use of the pump, it did not support the fitness for purpose case.

That is the significance of his Honour’s finding in the last line, line 55 on page 69 of the application book in paragraph 280:

It is consistent with the respondent’s case at trial.

were the respondent relevantly.  Then comes, in paragraph 281, what we have argued in our written submission and would seek, with respect, to put to the High Court were special leave granted, is nothing but a speculation, which simply does not fit that test which is a matter of principle this court devised in Quade’s Case to deal with cases of delinquency.

Delinquency was not to be punished, as it were, by a death’s‑head on a pike but if you are delinquent you will suffer a retrial though the material you wrongly did not bring forward for pre-trial preparation and trial consideration did not matter.  The court did not take what might be called that exaggerated disciplinary stance.  Rather, they took an approach, and this Court, in our submission, ought to vindicate an approach which eschews speculation, notwithstanding that if there is to be charity or a doubt resolved to the benefit of a party, it will not be in favour of my client.  We accept that.

HAYNE J:   How can speculation be completely put aside when discovery is directed to chains of inquiry if, on the application to set aside, there is not to be a complete run of the trial that would have been had if discovery had been given?

MR WALKER:   The first thing to be said is that that is not a form of reasoning that really appears in the Full Court, that is, they do not embrace what they are vindicating as being speculative in nature.  Now. that is in an error, in our submission, of a very considerable kind when it comes to the job cards, just as it was an error in relation to the trial judge’s reference to forensic deployment of the Ashley White memorandum, bearing in mind what was crystal clear as the trial judge had already found about the Gore memorandum.  The answer ‑ ‑ ‑

CRENNAN J:   Can I ask you – I am sorry Mr Walker.  Have you finished in relation to that point?

MR WALKER:   No, I think I have to add one more thing to that answer, I am sorry.

CRENNAN J:   Yes, I did not mean to interrupt you.

MR WALKER:   I am sorry, your Honour.  The answer, therefore, how can the court avoid something in the nature of what I might unkindly call speculation but which is in truth simply understanding that there are unrejected possibilities opened ‑ ‑ ‑

HAYNE J:   Recognising the limits of knowledge.

MR WALKER:   Yes.  The first thing is that that has always been a hallmark of these inquiries, what would have happened but for, in forensic reconstructions such as the rule in Orr v Holmes requires.  It is always the case in a criminal appeal under the proviso.  It is always the case in civil appeals in relation to the form of the proviso that applies there, particularly in relation to evidence.  Had this evidence not been before a judge, forget before a jury, had this evidence not been before a judge would it have made a difference?  That obviously requires in some cases relatively complex, in other cases distressingly simple questions to be answered usually with a fairly robust answer.  Mostly it is this could not possibly have affected it given the body of evidence that was properly before the court, or this was the killer or the clincher that would have turned the case.

Your Honours, the fact that there is, as in all human affairs, a middle ground between what might be called usual poles does not mean that in that middle ground there is to be an end of the search for the best one can do and that therefore one blesses a speculative or guessing approach.  That is why we say, of course there will be in some cases, not this one ‑ see page 69, paragraph 280 - not this case, but we accept that the principle that we wish to have vindicated, namely not speculation but opining involving a balance of likelihood or possibility to fit the relevant testing question, that, in our submission, is not to say that you can simply speculate that who knows what might have happened once the people named on these job cards had been contacted. 

It is for those reasons, in our submission, that there always was an onus to which the respondents were not properly held to show that what was omitted mattered to the relevant degree.

CRENNAN J:   Can I ask you this, Mr Walker, looking at application book 75 where the judge makes his final conclusions, sets out final conclusions in relation to the job cards ‑ they are to be found at 314, 315, and 316 ‑ he is speaking in the language that those job cards were vital, they were very important.  Why is that speculative rather than indicating, in his own language, a very real possibility about the way in which matters could have gone differently?

MR WALKER:   That language is emphatically not the language of speculation. That is the language of clear findings of probabilities and possibilities for the reasons I have already put.  However, the nature of those job cards - and it does not get better between paragraph 280 and paragraph 314 - the nature of those job cards was such as his Honour found.  In our submission, to say that they were vital was to say that a case based on comparisons or comparables would have been at the heart of the exercise.  What the court does not go on and do and say how it could be said so as to give content to the notion of relevance or vitalness, each of which, of course, they could be relevant in the sense that they damn a case as well as elevate a case, vital in the same way.

CRENNAN J:   Well, vital in relation to the expert evidence.

MR WALKER:   Then, however, I have to deal with that last bit.  They “would” have.  It is not “could”.  He says “would”.  I have to deal with that:

would have . . . had the effect of answering the respondent’s expert evidence. 

Nowhere does his Honour describe, following on from his characterisation of the job cards in paragraph 280, how it is that they would have answered the respondent’s expert evidence.  Presumably it means by doing something either to their assumptions of fact or introducing new facts upon which their opinions might alter.

HAYNE J:   Can I be briefly blunt with you, Mr Walker?

MR WALKER:   Yes, your Honour.

HAYNE J:   The complaint is the pumps used in sewerage treatment of septic systems failed and failed because they were pumping other than clear water.  The pumps were sold for that purpose, were they?

MR WALKER:   They were sold for purposes which were found by her Honour not to include the application, mixture of substance plus ‑ ‑ ‑

HAYNE J:   There seem to have been a lot of sales to people who used them in sewage treatment and the job cards prove it.

MR WALKER:   And the Ashley White memorandum and Mr Gore’s memorandum.

HAYNE J:   And they failed.

MR WALKER:   Yes.

HAYNE J:   Not a bad leg up in a failure of purpose case, is it?

MR WALKER:   But, your Honour, the fact of failure in others’ application, others’ and the respondent’s, was not a bolt from the blue after the judgment, nor was it introduced after the hearing.  It was available before the hearing and at the hearing.  If this was evidence which introduced for the first time that failures were known with others’ application of these pumps then that would wear a very different character and the Quade’s Case test could have been answered without any speculation whatever because one would have been able to say, for example, the trial judgment had as its principal plank that these things had not failed anywhere else, full stop.

But that was not the position that obtained when the parties fought at their hearing and it is for those reasons, in our submission, that it cannot be said that the trial judge or, I should say, the first instance judge or the Full Court on this application to set aside have explained how it is that there is a real possibility of an opposite result to be obtained from documents which are consistent with our case concerning the circumstances in which failures, upon which the respondents might otherwise wanted to have seized as assisting generally their case about fitness, would not have done so. 

Bearing in mind that as to both the existence of other failures and the existence generically, though not by production, of job cards or records, the so‑called computerised records - bearing in mind that these were available before trial it is not possible to posit that it was the failure of discovery that led to any particular adverse finding or prevented some affirmative finding in favour of the respondents being made, which, it can now be seen, would have enjoyed sufficiently good prospect so as to present what is called the minimal real possibility of an opposite result.

The point that we seek to ventilate in this Court is that there is an underlying principle which unites cases of this kind with cases of the proviso, both criminal and civil, as well as cases in relation to, in particular, appeals about the wrongful admission or wrongful rejection of evidence, and that is that the experience of imperfection being common rather than rare it requires more than an assignment of blame by reason of default in observance of court rules before there will be a retrial.  It must be shown that the administration of justice requires a full rehearing because the result may have been different to the varying requisite degree of satisfaction that the various statutes, or in this case judge‑made law, require. 

It is for those reasons, in our submission, that the approach taken by the first instance judge and the Full Court can be seen to stand outside the requirements of Quade’s Case and thus outside the requirements of a transcendent principle.  May it please the Court.

HAYNE J:   Thank you, Mr Walker.  Mr Brookfield, we are minded to refuse leave and I will presently explain why.  That would be on terms that leave is refused on costs.  It would mean that the further issues about costs which you raised in your written submission filed yesterday would not fall for determination by the Court.  The Court would not consider them.  Is there anything you wish to say in that regard?

MR BROOKFIELD:   Your Honours, I brought the issue of the staying of the costs ordered by the Full Court simply as, I suppose, a process of what I saw as an injustice in light of now having been before this Court since 1993 and being granted a new trial based on my opponent’s conduct.  I do not have the facility of unlimited funds ‑ ‑ ‑

HAYNE J:   I understand that, Mr Brookfield.

MR BROOKFIELD:   So, therefore, I am representing myself.  I have now been told by the courts that I must start again as a direct result of the conduct of my opponent.

HAYNE J:   Yes.

MR BROOKFIELD:   I am now forced to remain a self-represented litigant because I no longer have access or can raise the capacity for legal representation, which I would dearly like to have for the future hearing.

HAYNE J:   I understand.  Yes.

MR BROOKFIELD:   I believe the Full Court asking me to, in effect, remain self‑represented now, to start all over again, is a bit of an injustice in light of this case will probably run now for another six or eight years.

HAYNE J:   If we refuse leave, as we are minded to do, Mr Brookfield, those issues remain where they lie.

MR BROOKFIELD:   I appreciate that, your Honour.

HAYNE J:   Thank you, Mr Brookfield.

There are insufficient prospects of success of an appeal to warrant a grant of special leave to appeal in this matter.  Accordingly, special leave is refused and refused with costs.

The Court will adjourn to reconstitute.

AT 12.17 PM THE MATTER WAS CONCLUDED