Carburettor Services Pty Ltd v Tottenham Investments Pty Ltd S104/1994 [1995] HCATrans 96 (18 April 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S104 of 1994

B e t w e e n -

CARBURETTOR SERVICES PTY LIMITED

Applicant

and

TOTTENHAM INVESTMENTS PTY LIMITED

Respondent

Application for special leave to appeal

MASON CJ

DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 18 APRIL 1995, AT 12.01 PM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC: If the Court pleases, I appear for the applicant with my learned friend, MR H.J. MARSHALL. (instructed by Henry Davis York)

MR G.P. McNALLY: If the Court pleases, I appear for the respondent. (instructed by Tesoriero Kwan)

MASON CJ: Yes. Mr Bennett.

MR BENNETT: If the Court pleases. Your Honours, the principal issue in this case concerns the applicability of Abalos, and the question of when an intermediate Court of Appeal can interfere with factual findings. Your Honours, in a series of cases, of which Abalos is the principle one, this Court has laid down fairly strict limits for such interference. This case involved the question whether certain precautions taken by a bailor were reasonable. Evidence, including quasi expert evidence, was given by police officers and by the managing directors concerned about their experience and by others. On any view of it, the case was one which was close to the line, as to whether - - -

McHUGH J: Your argument seems to be departing altogether from the written submissions, is it not? Abalos does not get one mention in the written submissions, unless my recollection is wrong.

MR BENNETT: It is referred to in the notice of appeal, your Honour, and in the statement in support, but briefly. But it is the principal matter on which I - I had caused a message to be given to my learned friend over the weekend as to this.

The trial judge formed one view and gave reasons involving his assessment of witnesses, and the Full Court unanimously took the opposite view. We would submit that there is not one matter in the judgment in which one can find any finding of error. One simply has the Court of Appeal coming to the opposite conclusion. The sole suggested justification is based on what seems to have been a misunderstanding by the Court of Appeal of one sentence in the judgment.

May I just demonstrate that to your Honours very briefly. If your Honours go to page 43 - the previous pages deal with a long question and answer: the question relating to the issue concerning the keys, and asking a series of questions, putting a series of assumptions about the layout, and then saying, in those circumstances:

do you still say given those scenario that it would be required in addition to those things for a reasonably prudent person to take the keys out of the car?

So, the question only concerned keys, and the amended question, on page 43, only concerned the keys as, of course, did the answer. And his Honour described that as "tipping the scales". The Court of Appeal,.at pages 43 and 44, then criticised the application of weight to it, and the first reason given, at line 30 on page 43, is just simply wrong. His Honours says:

There are a number of reasons why that opinion does not carry the weight which Levine DCJ assigned to it. First, it was addressed to the issue of the suggested negligence on the part of the respondent in leaving the keys in the ignition -

et cetera. Now, if one goes to his Honour's judgment, that is all the question was ever treated as relating to. What his Honour did was, if I can just take your Honours to pages 19 and 20 -, the reasoning part of his Honour's judgment commences at line 10 on page 19, where his Honour addresses in turn the two submissions which were made to him; the first submission concerning the keys, the second submission, a subsidiary one at the trial, concerning the precautions in the building. In relation to the keys, his Honour says this:

It is submitted for the Defendant that the keys being in the car is irrelevant because one, in reality you have to look at the building. If there was relevantly a deficiency there in its security status the keys made no difference. Even had they not been in the car the evidence.....indicates that hot-wiring would.....have been.....employed. The evidence of this witness -

so it is still talking about that issue -

called by the Plaintiff in reply was critical. In cross-examination when confronted with the facts as to the building outlined above, she said "enough had been done" by the reasonable prudent occupier in the position of the bailee. Her evidence combined with that of Detective Constable Bechara, called by the Defendant, tipped the scales.

Now, his Honour treated that as dealing with the building but, in my submission, it is clear it deals with the keys. His Honour then goes on to deal with the building in the next sentence. He turns to the secondary issue and says:

Mr Keevill's evidence -

he was the managing director of the bailor -

as to his experience with Truscotts -

which was a much larger car place in Parramatta Road -

lacked, in my view, a coincidence of circumstances sufficient to enable any inference to be drawn favourable to the Plaintiff's case in respect to the Defendant's building -

So, he is turning, in that sentence, to the building, and he goes on to deal with that. He weighs the evidence.

Mr Compton's evidence seemed to be based above all else on his own experience after at his premises there had been several break-ins. Whilst the evidence of steps taken by the Defendant shortly after the event points to preventability, as was indeed conceded by Mr Howarth -

that is our managing director -

it is by no means conclusive as to any want of reasonable steps -

and there is a verdict for the defendant.

What the Court of Appeal has done is to take those words, "tipped the scales" and fail to appreciate they only related to the keys on which the Court of Appeal affirmed his Honour's decision and agreed with his Honour. They then go on to say other things about that question which, of course, do not matter because the question and answer only related to an issue where they were not disagreeing with the trial judge.

When one takes that out there is simply no reason given for taking a different view except that they have come to a different conclusion on the facts. That appears at page 45 where his Honour says that he is sympathetic to the way the judge was led to his conclusion. He was responding to the primary issue, the keys. That was not the sole issue:

In my opinion there is enough in the case to entitle the appellant to succeed upon that footing. I would concede that the appellant's case was not as strong as it might have been.

So, his Honour is not saying that this is a really strong case where "the judge is plainly wrong and I have come to the opposite conclusion". What he is saying is, "Well, I've had a look at the evidence and I have just come to the other result." That appears particularly clearly where his Honour refers to the right of a party to have a second look at the case. That appears at page 38 line 19 where, after referring to the nature of the appeal, says:

But also the right which the appellant has to have this Court conduct a second look at the case and, if convinced that the primary judge was wrong, to substitute its own view -

But it is clear, when one reads the judgments, that being convinced he was wrong consists merely of looking at the evidence and coming to the opposite result.

Now, it is true that this is a case involving a comparatively small sum of money and that the issue is a factual one. But the real issue is whether Abalos is to be applied by intermediate courts of appeal or not. This is a decision of a unanimous Court of Appeal, including the Chief Justice and the President. If it is allowed to stand there is a good chance that the New South Wales Court of Appeal and, indeed, other State appellate courts will follow it, particularly if it is known, as it would be, that special leave was refused by this Court.

DEANE J: That is a bootstraps argument if I ever heard of one, that you improve your chances of getting special leave by applying for special leave and threatening to spread it through the country that you did not get it.

MR BENNETT: Your Honour, Mr Solomon does that for us. Nevertheless, it is the sort of case where, on such simple facts as are involved here, it would be open to counsel in a future case to say or to a Court of Appeal in a future case to say, "Look, we are entitled to interfere at least to the extent that appears here, and if we disagree with a view reached on a question such as, `Was there negligence?' `Were the precautions reasonable', and so on, without being able to identify any error of fact or law, then we are entitled to give the litigant a second look at it."

McHUGH J: You seem to be going back to the Edwards v Noble test. That seems to be a return to Edwards v Noble.

MR BENNETT: No, your Honour, I do not suggest that one goes back that far. This is a case where - the real fons et origo, I suppose, is Hontestroom - which I am probably - - -

McHUGH J: Yes. But, no, this is not a rehearing case. The facts are not in dispute. The Court of Appeal has not interfered with credibility. They have interfered with a witness's conclusion but - - -

MR BENNETT: Your Honour, that is all that happened in Abalos. In Abalos it was simply - - -

McHUGH J: It was more than that in Abalos.

MR BENNETT: Your Honour, Abalos was an expert witness's conclusion against that of another expert and the Court of Appeal was not permitted to take a different view of which expert would be accepted to the trial judge. And that is really all that has happened here. There may have been questions as to whether the expert evidence was admissible but the expert evidence, having been given and admitted and the court having weighed it and come to one conclusion, the Court of Appeal says, "We disagree".

McHUGH J: But the witness's evidence was directed in a context of the keys, was it not?

MR BENNETT: Your Honour, it was on both. The police officer simply had given evidence about the keys but then Mr Keevill gave evidence about Truscotts which his Honour relied on and Mr Compton was a former used car dealer who was called by the plaintiff to give evidence about precautions taken by used car dealers, and Mr Howarth was our managing director, and they gave evidence about this sort of thing and about precautions taken. His Honour took a view which took a view of that evidence and said the precautions, having considered all that, were reasonable. That was opposite to the view taken of the Court of Appeal.

Your Honours, in my respectful submission, this is a short, simple case where the Court would be able to lay down the principles clearly. If it does not do so, there is the risk to which I have referred. The other matter which is the matter dealt with in the application is simply this, that while the Court of Appeal applied the traditional bailment test and while there was no departure from that, certainly some of the language in describing the events suggest that a stricter approach was taken. If the Court was concerned to have a look at the law in relation to duties of a bailee, this might be an appropriate case to do it. But I cannot identify any specific issue which would arise in that area. May it please the Court.

MASON CJ: Thank you, Mr Bennett. The Court need not trouble you, Mr McNally.

The ground on which special leave is sought is that the Court of Appeal erred in principle in overruling the trial judge's finding of fact that there was no failure to take reasonable precautions for the safekeeping of the respondent's motor vehicle. We are not persuaded that there was any such error of principle. In our view, it was open to the Court of Appeal to reach the conclusion to which it came. The application for special leave is therefore refused.

MR McNALLY: An application for costs, your Honour?

MASON CJ: Yes. You do not oppose that, Mr Bennett?

MR BENNETT: No, your Honour.

MASON CJ: The application is refused with costs.

AT 12.14 PM THE MATTER WAS CONCLUDED