Simon-Beecroft v "Top of the Mark" Building Units Plan No 3410 and ANOR B34/1996 [1997] HCATrans 211 (26 June 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B34 of 1996

B e t w e e n -

ANTHONY WILLIAM SIMON-BEECROFT

Applicant

and

THE PROPRIETORS "TOP OF THE MARK" BUILDING UNITS PLAN NO 3410

First Respondent

THE DAVIS HEATHER GROUP PTY LTD

Second Respondent

Application for special leave to appeal

BRENNAN CJ

TOOHEY J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 26 JUNE 1997, AT 11.35 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR R.A.I. MYERS, for the applicant. (instructed by Gall Standfield & Smith)

MR W. SOFRONOFF, QC: May it please the Court, I appear with my learned friend, MR A.J. WILLIAMS, for the respondents. (instructed by Quinlan Miller & Treston and Minter Ellison)

BRENNAN CJ: Yes, Mr Jackson.

MR JACKSON: Your Honours, whilst additional issues were sought to be raised in the materials, the issue which we seek to agitate on the application relates to sections 18 and 101 of the Evidence Act 1977 . To put it more directly, your Honours will see, for example, matters relating to the new trial application in the Court of Appeal. We do not seek to proceed in relation to that aspect of the matter on this application.

Your Honours, what we would submit, however, is that the case is one in which the interests of justice in the particular case merit the grant of special leave and we would seek to say, also, that the application given to the statutory provisions in the courts below is of significance because of its effect as a precedent in relation to the way in which section 101 of the Evidence Act 1977 is operated.

Your Honours, may I take just a moment to say something about the setting in which that issue arose before moving to it. Could I just say this, your Honours, the applicant was a big man, 6 foot 3 tall, and 18 stone, who became a paraplegic when he fell to the ground from the first floor level of a Gold Coast night club. Your Honours, he said that he had fallen over a railing which was too low, 850 millimetres, rather than 1,050, and in his evidence he gave two reasons: one, that he had come out of the night club door, walked across the balcony, lent across the rail to allow people coming the other way to pass, but then toppled over; and his second version was the he had gone a few steps along the railing before that happened.

Now, your Honours, in relation to that, the primary judge did not believe him. The defence case, on the other hand, had been that the fall occurred as a result of a scuffle with a bouncer, and your Honours will see that at page 65 about line 54.

BRENNAN CJ: There is no doubt but that he fell over the particular balcony verandah.

MR JACKSON: Your Honour, that is the point to which I am just about to come because that is the point, ultimately, at which the primary judge found against or, perhaps I should say, declined to find for the applicant.

KIRBY J: He found that the railing was too low and that there was an element of fault in that, but your problem was causation; what caused him to fall.

MR JACKSON: Yes, your Honour.

KIRBY J: Did he simply lean over and fall; was he king hit and fell, as the defendant's case was, or was there some other explanation; he was intoxicated or something of that kind?

MR JACKSON: Yes. Your Honour, may I say two things about that: the first is that it perhaps was not quite so much why he fell but where he fell. Could I just say in relation to that, your Honours, even if it be true that the fall occurred as a result of a scuffle with a bouncer, that left open the possibility that the too low railing had played a part because, your Honours, it is not unknown for there to be scenes of revelry or perhaps vigorous disagreement outside night clubs. That is why they have bouncers.

KIRBY J: Was that case fought? I did not understand that, that the argument - that you joined issue on the proposition that even if he was king hit, that it was still the cause of the fall.

MR JACKSON: Yes, your Honour, that is what I was about to come to now. I will take your Honours to the two passages, one in the Court of Appeal which did not, in our submission, quite deal with the point, and one by the primary judge to which I will come first.

As the reasons of the primary judge made clear, what he regarded as critical was certain evidence given by a Mrs Kenyon. Your Honours will see that referred to as having that quality at page 71 about line 19 where his Honour said:

The critical evidence for the defendants is that given by Mrs Jill Kenyon.

Could I ask your Honours to hold that page, as it were, for a moment. The evidence which she gave was of the terms of a conversation in the weeks after the applicant was injured, the conversation having taken place with the applicant's wife, not with the applicant. The conversation was to the effect that his falling over the edge had been as the result of an altercation with a bouncer at the night club. Your Honours will see what she said in the passage which commences at page 71, about line 30, going through to line 5 at the top of the next page. That evidence was also critical because the judge used it as the basis for his finding that - and this is in response to your Honour Justice Kirby - assuming the participation of the bouncer, the applicant would yet fail because he had not demonstrated that he had fallen over the too small railing of the balcony as distinct from having fallen over the edge of the stairs which led down from it.

Now, your Honours, that that is so appears - if I could take your Honours very briefly to three passages. The first is page 101, and at the bottom of that page the primary judge said that:

Looking at the whole of the material I am prepared to infer that the plaintiff did suffer injury when he fell from or near the level of the balcony giving access to Twain's Nightclub -

that sentence continues on to the top of the next page. The second thing, your Honours, is at page 103, about line 46, he says:

If I were compelled to decide which of the admissions or statements made by the plaintiff was most likely to be correct, I would choose that which he made to his wife while in hospital.

That is a reference back to that piece of evidence of Mrs Kenyon to which I took your Honours earlier. One goes then to a passage which commences at the bottom of page 103 and it goes through, in effect, to page 107, line 54 - - -

KIRBY J: Just let me interrupt. At the trial, both he and his wife denied any such conversation, so this is a statement he made to his wife, as recounted to the court by Mrs Kenyon.

MR JACKSON: A statement he made to his wife, his wife recounted it to Mrs Kenyon - - -

KIRBY J: Mrs Kenyon recounts it to the court.

MR JACKSON: Yes. And it came before the court on the basis of there being a prior inconsistent statement by his wife which then became some evidence of the contents of it, or capable of being such by virtue of section 101 to which I will come.

So in the passage to which I just referred at page 103, going through to page 107, what was discussed by the judge was whether, on the basis of the evidence given by - evidence of that conversation - he could find that the accident occurred in such a way that notwithstanding the intervention of the bouncer, the lowness of the railing had played a part in the occurrence. Your Honours will see, if one goes to page 104, in the paragraph commencing at line 25, he expresses the view, about line 30 that:

If I were persuaded that were probably so -

and that is, in effect, that the applicant had got back up to the balcony -

then I would give careful consideration to the evidence of Mr McDonald -

which he then sets out. The reason that his Honour does not make a finding in relation to this aspect is that he forms the view that he is not satisfied from that passage of the evidence that the plaintiff had in fact got up to a position where he could fall over the railing, as distinct from falling over the side of the steps, the side of the steps being concrete with some formation on top of them, there being no metal railing of the type that was there referred to that there was in relation to the balcony.

KIRBY J: Are there photographs? Were they tendered at the trial?

MR JACKSON: Yes, your Honours. I can give your Honours a copy, one from the appeal book in the Court of Appeal at page 1305, which shows the relevant passage. It is exhibit 45. It is referred to in this application book at page 104.

TOOHEY J: In a way, that is the critical issue, rather than the evidence of Mrs Kenyon, is it not? I understand, of course, the importance of her evidence, but even if it had been rejected or there had been no such evidence, the plaintiff still would have been called upon to give an explanation from which an inference of negligence could be drawn.

MR JACKSON: Yes. Your Honour, could I just say that apart from the evidence of Mrs Kenyon all the other pieces of evidence - perhaps I should put that another way. There was no other piece of evidence which, in our submission, suggested that the railing that was spoken of at various places was other than the point at which he fell. It is Mrs Kenyon's evidence that does one of two things: one is to potentially identify, as the judge used it, the steps as being the part where he fell over, on the one hand or, on the other hand, as critically supporting the view that it was the steps that he fell over.

KIRBY J: I am not sure about the configuration. Did you run a case that even if he fell over the steps, that the railing ought to have been of a certain height to prevent his falling?

MR JACKSON: No, your Honour. It was accepted - perhaps I should say not established - that if he had fallen over the steps, the height of the steps was not inappropriate.

KIRBY J: It was irrelevant.

MR JACKSON: It was the railing on the - - -

KIRBY J: Could the photograph be handed up, because I might understand it better when I see that.

MR JACKSON: The evidence given by Mrs Kenyon of the statements made by the applicant's wife became admissible by virtue of section 18 of the Evidence Act. May I take your Honours to those provisions very quickly. If your Honours go to section 18, section 18 is the provision which allows the proof by the respondent of the making of a prior inconsistent statement by the applicant's wife once the applicant's wife had denied that she had told Mrs Kenyon, nearly in fact 12 years before, what she said her husband had told her. That made it admissible. The use to which it might be put was provided for by section 101 and section 101 is a provision - perhaps if I could mention in passing - which has a direct equivalent in Tasmania. It allows the use of a statement admitted under section 18 to go not merely to the reliability of the oral evidence of the witness whose prior statement is challenged but also as proof of the fact that the applicant had made such a statement to his wife, because your Honours will see the concluding words of section 101 that it:

shall be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible.

Your Honours, in circumstances where the prior inconsistent statement which is established is not a statement about what, perhaps, I could call an objective fact such as something the witness had seen and had said they had seen, but rather as to something that the witness said that another person had said, the greatest care of course needs to be applied in determining the use to which the statement might be put. And, your Honours, in circumstances where the making of the statement is denied by both the party and the witness, there is really no basis, in our submission, for going beyond what was actually said.

Your Honours will have seen the passage at pages 71 and 72 which set out what was actually said, and I took your Honours to that earlier, but what the judge proceeded to do at page 104, line 45, through to page 105, line 35, was really to engage in further speculation about it and from a conversation, the terms of which could not, in our submission, really give rise to a view that the man had fallen over the steps rather than the railing, then his Honour proceeded to speculate to the effect that he had fallen over the stairs which had no thing that one would ordinarily, in our submission, describe as being a railing in the context of the case.

TOOHEY J: Mr Jackson, how do you suggest that 101 operates in this situation? What is the fact of which direct oral evidence would be admissible?

MR JACKSON: Your Honour, it seems difficult not to accept the proposition that the fact of which the direct oral evidence would have been admissible would have been if the applicant's wife had said, "My husband said to me" and then set out the text of it, that being admissible as being evidence of an admission by him. So that, your Honour, seems to be the effect of it. It would be different effect in different situations, of course.

KIRBY J: That means that by its literal terms you get it in, and then it is a question of what weight you give to it.

MR JACKSON: Indeed, your Honour, and that is recognised by section 102. But, your Honours, what we would submit is that whilst undoubtedly the evidence becomes admissible as going to the truth of the statement, and whilst the judge had a discretion in relation to the matter, the use to which it can be put in a case such as this cannot be to do more than to take the statement on its own terms and to apply it, rather than to in effect add to it or parse and analyse it. We would submit in this case it is something which has resulted in potentially significant injustice. Your Honours, those are our submissions.

BRENNAN CJ: We need not trouble you, Mr Sofronoff.

Having regard to the provisions of section 101 of the Evidence Act 1977 (Qld), the Court is of the opinion that an appeal in this case would not enjoy sufficient prospects of success to warrant a grant of special leave. Accordingly, special leave is refused.

MR SOFRONOFF: I ask for costs, your Honour.

BRENNAN CJ: Have you anything to say?

MR JACKSON: I have nothing to say, your Honour.

BRENNAN CJ: Special leave is refused with costs.

AT 11.55 AM THE MATTER WAS CONCLUDED