State Government Insurance Commission v Noujaim A17/1995 [1995] HCATrans 274 (21 August 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A17 of 1995

B e t w e e n -

STATE GOVERNMENT INSURANCE COMMISSION

Applicant

and

CHAHINE NOUJAIM

Respondent

Application for special leave to appeal

DEANE J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON MONDAY, 21 AUGUST 1995, AT 3.43 PM

Copyright in the High Court of Australia

MR B.F. BEAZLEY: If the Court pleases, I appear for the applicant. (instructed by Finlaysons)

MR M.A. FRAYNE: If the Court pleases, I appear for the respondent. (instructed by John Bennett)

DEANE J: Mr Beazley.

MR BEAZLEY: If the Court pleases, in this application for special leave it raises again an invitation to the Court to restate the limits upon a Court of Appeal in setting aside the findings based primarily upon issues of credit as your Honours have heard about three times today. If I could raise also the fact that it does raise in part the question as to how detailed must the reasons of a trial judge be to justify the findings of credit and, in short, if I could put the matter, if the Court pleases, that what the Full Court did in this case ignore the long line of authority culminating in the Devries' Case in two major respects, and they were, firstly, to downplay the position of a trial judge with respect to the demeanour of the witnesses, and I will return to that in a moment, and secondly to, in my respectful submission, embark upon comparisons and criticisms of the witnesses and really to impose its own view of the probabilities of the case without, in my respectful submission, the basis of an incorrect appreciation of the evidence by the trial judge, it just simply embarked on that case itself.

In that respect if I could just raise firstly the question of - - -

DEANE J: Mr Beazley, by way of help, can I indicate to you that it always seems to me that in this type of case the more you have to get into the facts to show that the Full Court has somehow stepped out of its role, the clearer it becomes that it is not an appropriate case for an appeal to this Court.

MR BEAZLEY: I thank your Honour.

DEANE J: Well now that being so, if you can point to something in the judgments of the Full Court which indicates wrong principle or misunderstanding of principle, it is your best starting point. If you cannot, of course, you have to come to the exercise that you are embarking on.

MR BEAZLEY: I thank your Honour. Your Honour, if I could just deal with it very briefly then. If I could take the Court to page 38 of the application book, and at 38 line 2, where Justice Mulligan indicated:

the learned trial judge took an adverse view of the appellant but he does not say that he did so because of anything he observed of him in the witness box.

The same comment is made in relation to Dr Le Cong, and that is at page 41 line 25, the same comment is made:

the learned trial judge does not refer to any respect of Dr Le Cong's demeanour in the witness box as relevant to this adverse assessment of him.

And that was said in the context of an argument by the respondent in the Full Court to say, well look, there are reasons, he has not given any reason as to why he found adverse to the plaintiff. In my respectful submission, that does fly in the face of authority and in particular the case of Jones v Hyde 63 ALJR 351 and in that respect, the decision of your Honour Justice McHugh in that respect, and if I could just very briefly read it out. Your Honour Justice McHugh said this:

It is true that the learned judge did not expressly rely on the demeanour of the plaintiff in making his findings of primary fact. But this does not mean, as Mr Ellicott submitted, that an appellate court is in as good a position as the trial judge to determine the primary facts of the case. When a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his determination cannot be overlooked. It does not follow that, because the learned judge made no express reference to demeanour and credibility, they played no part in his conclusion. I do not accept that in this case the learned trial judge's observations of the demeanour of the plaintiff and the defendant and their manner of giving evidence played no part in his findings. I think that they almost certainly did.

And in my respectful submission that is wrong in principle. What the court was doing, if I might say with respect, is downplaying the position - - -

McHUGH J: What is wrong in principle, the passage from Jones v Hyde or what, the - - -

MR BEAZLEY: No, I adopt entirely what your Honour said in Jones v Hyde. What the Full Court was doing in Noujaim was in a sense downplaying the position of the trial judge. So, in my respectful position, they were wrong in, as it were, regarding the judge's position in that respect as downplayed.

Secondly, one comes then to the question as to why they interfered. The Court will know already in this case that the plaintiff's case was based on two things: it was based upon firstly that there was degeneration of the C6/7, as to whether that was caused by the accident, and also a question of psychiatric sequalae. What had happened was that, after a long detailed analysis by Justice Mulligan about what should have been done or otherwise, the Full Court concluded that the C6/7 was not caused by the accident. It was then left to really a comparison of the evidence of Dr Donsworth and Dr Skinner. Now the judge at first instance heard them both; he preferred the evidence of Dr Donsworth, and what the Full Court did really was to embark almost on a re-hearing, as it were. It dealt with pages 34, 35, 36 and 44, and at 44 line 8 said this:

In my view there was no sound reason to reject the evidence of Dr Skinner.

Line 15:

There are reasons to doubt the bases of the opinions of Dr Donsworth.

One goes back and tries to find out why there was any criticism of Dr Donsworth, and it is very hard to find, if the Court pleases. It is at page 34 line 17, Justice Mulligan says:

Dr Donsworth - - -

GAUDRON J: She had not seen him until well after the condition had stabilised.

MR BEAZLEY: That is certainly so; I accept that, if your Honour pleases.

GAUDRON J: Well that is sufficient reason, is it not, for the Court of Appeal to make the observation it did?

MR BEAZLEY: No, with respect, it may be a sufficient reason as to why a trial judge ought to conclude that Dr Skinner was in a better position than Dr Donsworth; the trial judge did not overlook that issue. Dr Donsworth, fully appreciating that she was seeing this witness, the plaintiff, well down the track, still concluded that the plaintiff was a person who exaggerated and fabricated, and those are the two live issues which the court had to determine, who was right. Quite obviously the trial judge is sitting there and seeing Dr Skinner and sees Dr Skinner in a much better position, but concluded that he ought to accept Dr Donsworth. And there is one reason, at pages 34 to 36, and I know I should not be asking the Court to do this, there is simply no basis for it. All it is is simply saying, well if we had heard it, we would have preferred Dr Skinner. Not saying Dr Donsworth got it wrong or that in some way she was mistaken about the position at all. She gave her view and that was accepted by the trial judge at again page 36. This is the evidence of Dr Donsworth.

In her view he had personality characteristic which led him to exaggerate his symptoms and disability.....there was a strong element of lack of motivation.

And then the Full Court dismisses that by saying:

Of course, Dr Donsworth's opinions are to be given due consideration -

And tries to justify on this basis, if I might say with respect, well there was a problem with the interpreter, he saw him four years down the track and, even more so, in terms of the guess work by the Full Court, page 36 line 18:

Furthermore, by that time the appellant certainly had degeneration of his spine which could have been symptomatic.

I mean basically, this was a classic case, if I may say, if the Court pleases, where the Full Court had looked at the evidence again and has decided well look, if we were there we would have preferred Dr Donsworth and, in my respectful submission, that flies in the face of what this Court has said in the large number of cases which were referred to in the list.

If I can come back to one point, that case of Dearman v Dearman, which was discussed in the previous case, this was a case where it was the plaintiff who had the onus of proof; the plaintiff was disbelieved. Now again, every case is to be determined on its merits obviously and if this is not an appropriate vehicle for the Court to give leave, then so be it. But on the face of it, here is the actual case where there was no basis for interference by the Full Court other than the Full Court concluding, well if we had looked at it ourselves then we would have accessed it differently, and it gives no credence at all,in my respectful submission, for the trial judge in hearing the witnesses.

If I can just leave that for a moment and say this: what my learned friend has said in his outline to try to show, as it were, that there is some dispute on the facts in this case is that well look, in this case there are a couple of mistakes by the trial judge, one about, ie the evidence of Dr Le Cong's examination. Well the trial judge might have got it wrong; he said it was a five minute investigation rather than a ten or fifteen minute investigation. He refers to the rule in Browne v Dunn saying well, even though the court below did not comment about it at all, certain things were not put to the plaintiff, and one of them was the voluntary nature of the movement alleged by Mr Ghan. Mr Ghan gave evidence for the plaintiff; he was the plaintiff's witness. He came along and said, it was a voluntary movement, and the question of the other doctors, Jose and Sheedy, in a test and non-test situation, true, that was not put specifically to the plaintiff to say, well look in these circumstances you were putting it on or otherwise, but the authorities are quite clear, in my respectful submission, that in a case such as this where the plaintiff knows that the issue of his credit is in doubt, there is no need to put to him, well look you were putting it on or otherwise, and the authorities are clear on that; that is not an infringement of the rule in Browne v Dunn.

So, in my respectful submission, this is a proper vehicle for leave to appeal in that there is no individual issue which raises the question of dispute on the evidence. This is a case where a plaintiff was disbelieved and the court below, having heard all the evidence, preferred the evidence of Dr Donsworth. I cannot put it any higher than that, but in my respectful submission it is an appropriate vehicle.

DEANE J: Thank you, Mr Beazley. The Court need not trouble you, Mr Frayne.

Notwithstanding the submissions advanced on behalf of the applicant relating to the appropriate role of an appellate court in hearing a challenge to findings of fact made by a trial judge, we consider that an appeal in this case would ultimately turn upon the application of settled principle to the particular facts and would not involve any disputed question of general principle appropriate to attract the grant of special leave to appeal to this Court. Accordingly the application for special leave is refused.

MR FRAYNE: I make an application for costs.

MR BEAZLEY: I cannot oppose that, your Honour.

DEANE J: The application is refused with costs. Mr Beazley, in view of my introductory comment, I would like to say that you did present the application in the way such an application should be presented.

AT 3.56 PM THE MATTER WAS CONCLUDED