Zafer v West Australian Trotting Association

[1996] HCATrans 334

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P28 of 1996

B e t w e e n -

IRENE ZAFER

Applicant

and

WEST AUSTRALIAN TROTTING ASSOCIATION

Respondent

Application for special leave to appeal

DAWSON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON MONDAY, 4 NOVEMBER 1996, AT 2.36 PM

Copyright in the High Court of Australia

MR E.M. HEENAN, QC:   May it please your Honours, I appear with my learned friend, MR P.M. NISBET, QC, for the applicant.  (instructed by James McManus & Associates)

MR J.C. CURTHOYS:   May it please your Honours, I appear for the respondent.  (instructed by Barker Gosling)

DAWSON J:   Yes.

MR HEENAN:   Your Honours, this is the case of a lady who fell down a carpeted staircase of the offices of the Trotting Association of Gloucester Park in Perth.  She claimed, and the learned trial judge found, that her fall had been caused by tripping on crumpled and deteriorated carpet on the staircase, and that this was in an unsafe condition, and damages of $499,000‑odd were awarded.  The State Full Court, in our submission, with respect, wrongly reversed that decision, dismissed the claim for negligence but, on the cross appeal, indicated that had liability been established, the damages would have been increased to the sum of $526,760. 

Now, your Honours, the reasons by we submit that the Full Court was wrong and why this case should qualify for special leave to appeal, are set out in the written summary of argument which we filed last week, but they can be summarised in one sentence.  The Full Court reversed the trial judge on a finding of fact which was supported by evidence at the trial, which evidence was accepted by the learned trial judge as being credible, and this reversal was only because the Full Court took a different view of the credibility of that evidence.  We say, with respect, that that approach infringes the rules applying to the function of an appeal court when reviewing contested  findings of fact.  The Devries test ‑ ‑ ‑

KIRBY J:   But this Court has stated those principles in Abalos, in Jones v Hyde, in Devries and in other cases; what point is there, from the point of view of the Court, of special leave to say it yet once again?  We cannot surely accept every case where the principle has been arguably disobeyed.

MR HEENAN:   Of course not, your Honours, and this case for special leave is put not so much on the need for clarification of the principle, but for vindication of it.  If the principle ‑ ‑ ‑

KIRBY J:   Is it your submission that every time Devries is breached, this Court must receive the case.  Every time Jones v Hyde; every time Abalos is not complied with, this Court just has to sit here and listen to the appeal, though it turns on its own facts?

MR HEENAN:   Well, your Honours, our submission is that this is a very conspicuous breach where the breach is clear and unmistakable and, in a case such as that, we would say that the vindication of the principle, for the supervision of the law in Australia, for the maintenance of uniformity of appeal courts throughout the land, and to avoid the injustices which would occur of rightful judgments being wrongly overruled, it is appropriate for the Court to intervene otherwise these errors will go uncorrected and the administration of justice will suffer.  As we say in paragraph 2 of our outline, in effect, if the Devries test is not rigorously maintained there will be a regime of double jeopardy for litigants in appeal courts, and they will have to try their cases twice. 

We say, not meaning to be impertinent, that speaking from another jurisdiction in the criminal law Justice Deane in the case Benz epitomised the importance of similar principles by observing that these observations ‑ he was speaking of the question of the integrity of a verdict of acquittal in the criminal trial, but we would, with respect, say that the principles are equally applicable to the Devries test.  They:

“should not be seen as empty rhetoric which can be formally acknowledged and effectively ignored”. 

If this Court is not to intervene there is a risk that that may occur and in a place like this, if we make good our submissions, where the breach is very gross, we would say, with respect, that intervention is justified.

Your Honours, there is a ..... - I hope it is not confusing, the reception of the submissions at the Canberra end.  Your Honours, we say in relation to the error below that the infringement of the Devries test is readily demonstrable.  Apparently, without realising it, in the single judgment of the Full Court there was an acknowledgment of that transgression.  Two sentences in the application book demonstrate this.  Can I take your Honours to the application book at page 76, at lines 45 to 50, in the judgment of his Honour Justice Anderson.  Towards the foot of that page his Honour says:

In my opinion, there was no evidence upon which his Honour could find that this accident was caused by a defect in the carpet on the landing. 

Now, your Honours, as an objective statement of the evidence before the trial judge, the Full Court can hardly have intended that there was no evidence at all to support the findings.  Clearly there was.  Mrs Zafer, the applicant, gave such evidence herself.

McHUGH J:   That was not the issue, was it, as to whether there was a defect in the carpet on the landing.  The trial judge at pages 7 and 8 had found that she fell because of a problem on the stairs.

MR HEENAN:   That is true, but his Honour’s finding implies that the defect in the carpet extended generally and was present on the landing or stair tread from which she fell.  It is not said in as many words, but the implication must be to that effect.  There was other evidence to similar effect from Mr Benson, the carpet expert, and from Mrs Fenn, the other co‑employee, that the general condition of the carpet was very poor.  In the photographs that were taken, admittedly 23 months after the accident, there was demonstrated a rippling or bubbling on the particular stair landing.

KIRBY J:   What is put against you, as I understand it, is that this is not a case where the Appeal Court has overruled the primary judge on credibility findings.  It is a case where they have accepted the credibility findings and drawn different inferences from the facts accepting those findings.  Where is the clearest indication that the Full Court has contradicted the credibility finding of the primary judge?

MR HEENAN:   There are a series of points.  No easy answer can be given to your Honour’s question, but eight propositions are made by Justice Anderson for rejecting the findings below.  Firstly, he contends that the respondent’s own evidence was unsatisfactory in a number of respects.  At application book page 72 he points to the fact that two other witnesses, Ms Lekias and Ms Mariotti, were not at the foot of the stairs as the applicant had testified.  On the same page his Honour says that the plaintiff’s evidence as to the time of the accident was not accepted.  She was an hour late.

On page 72 his Honour draws attention to explanations given to the Royal Perth Hospital staff by the applicant or on her behalf that she only fell down three steps were not consistent with falling the six or seven steps which must have occurred from the landing as testified.  But as to that, exhibit 5 at application book page 4 shows that within a month of the accident a statement was made to the effect that she had fallen from at or near the landing.

The fourth point relied on by his Honour in the Full Court was that Mrs Zafer did not say that she tripped on a raised section of the carpet.  But in fact his Honour the trial judge at application book page 5, lines 40 to 45, said that she did.  She did so soon afterwards in the reports to the employers about the circumstances of the accident - application book page 14, line 35, and in the exhibit 5, the workers’ compensation report which I have already mentioned which is at page 4, that finding was given on 13 March 1990 shortly after the accident.

His Honour Mr Justice Anderson in the Full Court said, as his fifth objection, the applicant did not say in as many words, but she saw the raised sections of the carpet on the landing from which she fell.  That is true, she did not say that; perhaps if she had seen them she would not have fallen.  Now there was clearly evidence that in November 1991, when the Benson photographs were taken 23 months after the accident, the carpet on the staircase was rippled.  That appears at application book, page 73.  His Honour also seems to have made great play of an alleged misunderstanding by the learned trial judge as to the sequence of dates of the photographs of the staircase.  This is discussed at the application book, pages 74 and 75.  It turned out that there were three sets of photographs: exhibit 1, which can be discarded as irrelevant, having been of the staircase after the carpet had been replaced in 1992; exhibits 2 and 12 contained 35 photographs taken by Mr Benson, the applicant’s expert, in November 1991.  These showed generalised deterioration of the carpet and some rippling on the staircase near the site of the accident, and they were expressly accepted as being determinative by the learned trial judge.

The powerful contrary evidence, which influenced the Full Court, was exhibit 17, four photographs taken by the respondent’s investigator, Mr Webster in August 1990, about six months after the accident, and none of these showed any rippling on the stairwell.  So a choice had to be made between the Webster photographs and the Benson photographs; it was a difficult choice to make.  A decision either way would not probably be determinative; it was a choice between clearly conflicting evidence.  The learned trial judge chose the Benson photographs.  The appeal court says he should have chosen the Webster photographs and asserts that he was mistaken as to the dates and sequences of the photographs.  But clearly his Honour was not mistaken; he was perfectly conscious that the photographs were taken at the dates which occurred.  Three passages demonstrate this.  In the application book, page 14 lines 5 to 30, his Honour is aware that the Benson photographs were taken in November 1991.  At application book, page 7, lines 45 to 55, the same clear understanding is apparent.

Thirdly, and conclusively, at application book, page 8, lines 5 to 10, his Honour makes a positive finding of preference for Benson’s evidence and his photographs.  Presumably that difficult choice was made easier by the evidence given by Mr Benson that this particular brand of carpet was notorious for delamination, that it took place progressively over a long time and that in his opinion, this deterioration had been going on for about five years.  His Honour has put all those facts together and has concluded, on the balance of probabilities, there was bubbling and deterioration in the carpet near the staircase from which the applicant fell.  That, in our respectful submission ‑ ‑ ‑

KIRBY J:   Now, all of this is facts.  All of these are the facts.  But coming back to the point of view of special leave, which is the matter I raised earlier, what is the matter that lifts this from just another application of Devries, if anything?  Because the High Court of Australia simply cannot deal with every case where Devries is not conformed to.

McHUGH J:   And arguably, it happens fairly regularly.  There have been a number of cases in the last year or more where I have even expressed that view on special leave applications, when arguably there seemed to be an infringement of the Abalos principles, but ‑ ‑ ‑

MR HEENAN:   Well, your Honours, the answer we give to that is that the maintenance of the Devries test is essential for the proper administration of justice, and that if appeal courts depart from it, then people are being denied the proper administration of justice at the appellate level, and that is a criterion which the Judiciary Act recognises.  True it may be that it would be awkward for the Court to intervene in every such case, but if it does not do so occasionally ‑ ‑ ‑

KIRBY J:   This is the visitation jurisdiction, is it; that Devries, Jones v Hyde- I think most of them were aimed at the New South Wales Court of Appeal - but have there been any of them that have involved the Full Court of Western Australia, or not?

MR HEENAN:   Not recently, your Honour.  That is how we put the case.

KIRBY J:   But everybody who sits in an intermediate appellate court knows these principles.  They are the way defendants always present their cases.  Always.

MR HEENAN:   Well, your Honour, it is one thing to know the principles; it is another to apply them.

KIRBY J:   But we cannot deal with everyone who errs and strays from the ways of Devries.

McHUGH J:   I mean, human nature being what it is, intermediate appellate judges, seeing what they regard as a wrong decision and, therefore, an injustice, persuade themselves that they are acting within the Devries principles and they intervene. 

MR HEENAN:   Your Honour, very little respect, if any, was paid to the Devries principle in this judgment.  Although it was cited to their Honours, as was Abalos and Wilson v Peisley, none of those cases were expressly referred to in the judgment.  And this judgment reads, with all respect to their Honours, very much like a judgment at first instance which assaults the credibility of a witness seen and observed.  And it is not one of those instances in which an appeal court recognises the restraint which should exist upon itself; it disciplines itself, articulates the principle and then, through exuberance or indignation, trespasses rather too far.

This is a case where no heed was paid to the principle at all.  The entire method of this judgment was to attack again the credibility of the applicant which had been impugned at first instance and vindicated.  We say that this is a very gross imposition on the Devries test and one that needs to be halted.  If we cannot move your Honours by saying that the application of the Devries tests are important generally in Australia, then we must fail.  Those are our submissions, your Honour.

DAWSON J:   Thank you, Mr Heenan.  The Court need not trouble you, Mr Curthoys. 

The basis for this application is a submission that the Full Court wrongly failed to accept the trial judge’s finding of a crucial fact.  The duties of a Court of Appeal in reviewing findings of fact have recently been examined by this Court in Devriesv Australian National Railways Commission (1993) 177 CLR 472, and no purpose would be served by granting special leave to appeal to enable the relevant principles to be restated. Otherwise the application raises no point of importance which would warrant the granting of special leave to appeal. Special leave is accordingly refused.

MR CURTHOYS:   Your Honours, I would move for an order that the applicant pay the respondent’s costs.

DAWSON J:   Do you say anything about that, Mr Heenan?

MR HEENAN:   We must accept that, your Honour.

DAWSON J:   It is refused with costs.

AT 2.54 PM THE MATTER WAS CONCLUDED