Curtin v Holliday and ANOR S100/1997 [1997] HCATrans 373 (14 November 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S100 of 1997

B e t w e e n -

KATHRYN CURTIN

Applicant

and

LOUISE HOLLIDAY and PHILLIP CLIFTON-BLIGH

Respondent

Application for special leave to appeal

BRENNAN CJ

TOOHEY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 NOVEMBER 1997, AT 9.25 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.C. PINCUS, for the applicant. (instructed by Ross Koffel, Solicitors)

MR I.G. HARRISON, SC: Your Honour, I appear for the respondents. (instructed by Louise Mallon)

BRENNAN CJ: Mr Jackson.

MR JACKSON: Your Honours, as is apparent from the summary of argument, the essence of this case is that the course adopted by the Court of Appeal has worked a significant injustice to the applicant by depriving her of the benefit of the findings of the trial judge. Your Honours will see at page 218, paragraph 23, where that submission is made a little more fully.

Your Honours, may I just say something about the circumstances in order to support that proposition and I will take your Honours to the relevant passages as I go, if I may. The statistical risk, as your Honours will see, of breast cancer in a person of the applicant's age was relatively low, about 7.4 per 100,000. Your Honours will see that on the same page at paragraph 22 where the passage of the evidence is referred to. But for the 7.4, or perhaps 74 per million, for whom the risk becomes reality, the consequences of failure to diagnose are, of course, dramatic; not just a case of a few days off work.

There were findings that Dr Holliday had made observations which were consistent with a condition meriting investigation for breast cancer, but in relation to which nothing was done because the applicant was in the age group when the incidence of breast cancer was at the lower end of the spectrum. Your Honours will see that at page 6 in a passage which commences at the bottom of page 6, about line 53 and goes through to the bottom of page 7. I refer your Honours particularly to page 7, about line 6 and then going through to about line 30 where the judge found that Dr Holliday had said that:

If I was fifty I would be going to get a mammogram as fast as my legs could carry me but I was only twenty-nine.

Now, your Honours, there were findings also that she had complained to both respondents of continuing breast pain. I have given your Honours, I think, the references to the various passages in the summary of argument but that left a situation where there were then two factual issues in the case. The first was, was there a discrete lump which could be felt; the answer was no. We lost on that issue. It is not further pursued. The second issue was whether the cause of pain and tenderness, whatever it was, should have been further investigated, and it was on that issue that the applicant had succeeded before the primary judge.

The judge specifically accepted the evidence of Professor Tattersall that the circumstances required further tests, not because the circumstances indicated or necessarily indicated cancer at all, but rather because they indicated something may be wrong and it was something which required attention and if they had been investigated, as his Honour found, the probability was that the cancer would have been diagnosed in time. Your Honours will see that at page 20. If I could start first at the bottom of page 20, the last sentence on the page, where his Honour accepted the evidence of Professor Tattersall in that regard. What Professor Tattersall said was, commencing at the top of the page your Honours will see that going through to the end of the page.

BRENNAN CJ: What is meant by the trial judge there "that Professor Tattersall's approach is the correct one"? What is he speaking about?

MR JACKSON: Your Honour, meaning rather the prudent one, in our submission, the appropriate one.

BRENNAN CJ: In the judge's view.

MR JACKSON: Yes, your Honour, in the light of - - -

BRENNAN CJ: But that was not the question, was it?

MR JACKSON: Perhaps it is a question of how one precisely puts that, but what the judge was doing was to look at the situation of what a medical practitioner acting reasonably and in the way in which a medical practitioner consulted should act, would act, without negligence. What he was saying was that Professor Tattersall's approach of saying that was what a practitioner should do was the one that he adopted as correctly stating the practitioner's obligation.

BRENNAN CJ: How does that accord with Bolam's Case?

MR JACKSON: It accords, your Honour, in this sense, that what you have is a situation where the practitioner was consulted by someone in relation to whom there was a significant - significant though small, of course - statistical possibility that there was something which could be life threatening.

BRENNAN CJ: And there is a body of reputable professional opinion that says in those circumstances you would not go further.

MR JACKSON: But, your Honour, in relation to that - and this is the point that we seek to make and this is the point that the Court of Appeal does not seem to have appreciated, if I may say so with respect - what they were directing their attention to was the question whether you would go further to investigate for cancer. What, on the other hand, Professor Tattersall was saying, and what was accepted by the primary judge, was that whilst it may well be that the indications that were present were not indications of cancer, when you had a situation where there was a continuing pain in the breast and it was continuing and it was continuing pain and tenderness, then that should be investigated to see what it was.

BRENNAN CJ: That was Professor Tattersall's view. The judge thinks that is the right view.

MR JACKSON: Yes, your Honour.

BRENNAN CJ: But there were other practitioners who did not think it was the right view.

MR JACKSON: Indeed, your Honour.

BRENNAN CJ: How does one then find that there is professional negligence?

MR JACKSON: I am sorry, I think I answered your Honour too quickly in saying that, because other practitioners did not really quite say that. What they were dealing with was in relation to the question of whether you should investigate further for cancer. That is the way in which - - -

BRENNAN CJ: Were they asked the question relevant to Professor Tattersall's view?

MR JACKSON: That is why, your Honour, one sees at the top of page 21 that his Honour says:

No evidence was called by any of the defendants in response to Professor Tattersall's latest report or indeed, to his oral evidence on the point.

So that what his Honour was saying is that on that point, that was the - and your Honour will see also, page 20, about line 40, where he says:

There are practitioners who disagree with his approach but there is I think no opposing expert who meets him precisely on his own ground. The other witnesses are looking for indications of cancer -

The actual evidence your Honours will see at page 84. The relevant passage commences, I think, the first new question and answer on page 84, and your Honours will see again, about line 45 through to the bottom of the page in the passage which continues on to the top of the new page, page 85 about line 18.

TOOHEY J: Was the issue one as to whose evidence should be accepted as a matter of professional opinion or did it go further than that in the sense that there was a fact finding by the trial judge that was disturbed on appeal?

MR JACKSON: Perhaps I can put it this way. I am not certain that it quite fits in either of the categories your Honour put to me. The position that obtained was this, that the primary judge had made the finding to which I referred at pages 20 and 21 and that was that he accepted, in effect, that a prudent medical practitioner would have required that there be further tests.

TOOHEY J: That is an acceptance of Professor Tattersall's professional opinion, is it not?

MR JACKSON: Yes, your Honour, yes. If I could just say in passing, your Honour, the acceptance of professional opinion, of course, was a matter that lay at the heart of the Court's earlier decision in Abalos v Australian Postal Commission. So in relation to that, that is what his Honour found. Now, that was something that the Court of Appeal, for one reason or another, was not prepared to apply; in fact, appears to have set it aside, and they did so, your Honours, because, going through the evidence, they took a different view. The point that we have sought to make in our summary of argument is that the course that was adopted by the Court of Appeal in that regard was one that was incorrect. I refer your Honours to the paragraphs 12 and following.

TOOHEY J: So in the sense that credibility is an expression that is used when the case reaches the appellate level, what significance, if any, does it have in this application?

MR JACKSON: Your Honour, what it does is this: one has a situation where Professor Tattersall gives that evidence. That evidence the judge accepts and what the evidence is is that a prudent medical practitioner would have, in the light of the continuance of pain and tenderness, required there to be further tests. The place that that occupies in the case is that, that situation then being accepted, those tests if carried out would have been likely to reveal the cancer. One goes from that to say, was that dependent on credibility? Making the finding obviously was. Is there any other evidence which contradicts that? His Honour took the view that there really was not.

HAYNE J: The Court of Appeal intervened, did it not, on the basis that the factual substratum for the opinions expressed by Professor Tattersall was, in their view, not established?

MR JACKSON: Yes, your Honour, that is the approach that they appear to have taken in relation to it.

HAYNE J: Rather than a rejection of the opinion, it is a rejection of the factual basis for the opinion.

MR JACKSON: Your Honour, that is the reason they appear to have assigned for it. What we seek to submit is that if one looks at the matter - and, your Honour, I cannot go into the detail of it, we have endeavoured to set out the core things of it - there is simply not the basis for that because the very matters to which the court referred were ones that, on the one hand, were directed not to that issue, because they were directed to the question of investigations for cancer as distinct from further investigation in the broader sense, on the one hand, and on the other hand, that they were observations largely, in my submission, directed to the issue on which we had earlier failed, that is the question whether there was or was not the lump, a discernible lump.

Perhaps I should say, the third thing in response to your Honour Justice Hayne, is this - it is a matter to which we refer in paragraph 18 at the top of page 218 - that it is all right in a sense to say, as the Court of Appeal said, well, the doctors did have a view. But, your Honours, that does not really meet the evidence of Professor Tattersall where he was speaking of what they should have done and that if they had done that properly, they would not have arrived at the view which they did.

Your Honours, could I just say perhaps by way of conclusion, as it were, that this was a case of great seriousness to all the parties. As your Honours will see, the primary judge very fairly observed at page 21, at the first paragraph on the page - it was a case that was very fully fought out at first instance. We failed on one of the issues, the respondents on the other, and there was oral evidence, not contradicted, in our submission, which was directly accepted by the trial judge, and it was, if I may say so with respect, your Honours, evidence which even to a lay person, we would submit, does seem to accord with commonsense, that if there is someone who has continuing pain in one breast, then it is something that should be investigated.

HAYNE J: Can you point me to the place in the primary judge's reasons where he found as a fact the facts which founded Professor Tattersall's opinion?

MR JACKSON: Yes, your Honour. It comes, I think, your Honour, on page 17. At pages 17 through to 20 he discusses Professor Tattersall's evidence. It is right to say, however, that in relation to the presence of there being continuing pain there were findings that she had complained to both respondents of continuing breast pain and tenderness and your Honours will see those passages at page 14 line 38 through to about page 15 line 15. Your Honours will see particularly on the bottom of page 14, last three lines:

I have no doubt that the plaintiff was genuinely troubled for at least the two years in question by "lumps in her breast". I believe that she did draw these to the attention of the defendants and that they examined the area she pointed to. I accept that she believed that amongst the lumps was a hard area.....she told them of -

He said he was:

not satisfied that the plaintiff expressed her concern in a manner which made any of the defendants recognise its intensity.

Your Honours will see also that at page 5, lines 1 to 11, his Honour refers to the third defendant, that is Dr Clifton-Bligh, noting that the left breast was "still tender sometimes very painful". Reference to "tender lobularity". On the same page at the bottom of the page, line 51, 3 March 1994, "again noted `soft tender lobularity'". And your Honours, page 6, line 53 going to the end of that paragraph at the top of page 7, "concerned about the lump because it was hurting her and `staying there'". Then your Honours will see the reference to hurting her and staying there.

HAYNE J: That is the plaintiff's evidence of it?

MR JACKSON: Yes, your Honour, and your Honours will see, if your Honours go to the bottom of the page, that it seems very likely she, that his Honour's finding, she said that because your Honours will see the immediate remark by Dr Holliday that his Honour finds to have been made a little further down the page. So, your Honours, what was there was something that, if she was an older woman and I think I used the expression before, in the band where statistically it was a little more common, she would have been sent off for further investigations.

TOOHEY J: Mr Jackson, could I just clarify one matter with you. I understand the submission which is, as I understand it, that the Court of Appeal went wrong in not grappling with what Professor Tattersall had said, which was not there should be an investigation for cancer but given the complaints and the medical history, some tests should have been carried out and had they been carried out, they would have disclosed the existence of the cancer.

MR JACKSON: Yes, your Honour.

TOOHEY J: Now, is that as it were the sole - and I am not underestimating it by saying "sole" - but is that the sole basis of complaint about the way in which the Court of Appeal dealt with the judgment below or are there other criticisms?

MR JACKSON: No, your Honour. The essence of the case is what is in paragraph 23 at page 218 and your Honours will see that that is reflected in the draft grounds of appeal, paragraph 2 on - - -

BRENNAN CJ: That does not really answer Justice Toohey's question, does it? Certainly they made their own comparisons and criticisms, but is your ground of complaint the one which Justice Toohey identified and nothing else besides?

MR JACKSON: What we say is that the Court of Appeal should not have set aside the finding by the judge based on the evidence given by Professor Tattersall. As well as going to paragraph 23, I had taken your Honours to the ground of appeal which your Honours will see at page 213 at paragraph 2.

BRENNAN CJ: Can I ask you: the "acceptance of relevant aspects", is the relevant aspect to which you draw attention the question of the factual foundation for the expression of Professor Tattersall's opinion?

MR JACKSON: Yes, your Honour.

BRENNAN CJ: And nothing else besides?

MR JACKSON: Yes, your Honour. Your Honours, what we would seek to say is that if we are correct an injustice has been effected and what essentially is a human tragedy has been rather magnified.

BRENNAN CJ: Thank you, Mr Jackson. Mr Harrison.

MR HARRISON: Your Honours, the summary that appears at page 179 in the paragraphs represents a repetition of something that I had prepared to assist the Court to summarise the position as we saw it. As my friend correctly puts it, the case was originally fought upon the basis that the doctors were negligent for not detecting a lump clinically. The plaintiff failed on that issue. I say, not pejoratively, a second string to the plaintiff's bow was that, in the absence of a clinically detectable lump, they fell short of the professional standard by failing to do something else.

It was in this context that what has become referred to as "the Professor Tattersall thesis" emerged. In the Court of Appeal I sought to attack it on two grounds or two bases: the first was - I will go back a space. I remind your Honours, with respect, that that thesis was that if there were a persistent abnormality, and in brackets one needs to interpose, unexplained, persistent abnormality of any sort, a medical practitioner could not prudently ignore it until an explanation had been found. I sought to attack that on two grounds: the first was, as his Honour Justice Hayne has adverted to in the Court of Appeal's reasoning, that there were no factual bases upon which it could be said there was a persistent abnormality. Your Honours will have seen a reference in the Court of Appeal decision to my having painstakingly - I trust it was not too long - taken the court through the notes of both of the doctors, both of the respondents, in a way which I sought to demonstrate, and which the Court of Appeal accepted did demonstrate, there was no persistent abnormality. Whether it be breast tenderness or hormonal mastopathy, whatever it was that the notes revealed consistent with complaints made by the plaintiff to the doctors, they did not reveal an abnormality which did not go away. The effect of that was there was no unexplained condition requiring further referral.

My second ground of attack was that, assuming against me there were to have been found a persisting abnormality, and indeed the trial judge in the three or so pages of his judgment to which Mr Jackson referred came to the view that there was, assuming against me that there were a persistent abnormality, the second line of attack was that it was not incumbent upon a medical practitioner in the face of such an abnormality to refer, unless that collocation of abnormalities which persisted were themselves indicative of cancer. With respect, the Court of Appeal, for the reason that it dealt with the appeal on the basis of the first attack on the Professor Tattersall thesis, did not deal with the second. There is, indeed, some medical interest in the second point as to whether or not, faced with a series of symptoms which are troublesome but not suggestive of cancer, require further investigation is an interesting point. The Court of Appeal in fairly clear terms did not get to it.

As Justice Hayne has indicated, and this is the thrust of my response and resistance to this application, what we have is a question of fact alone. We have a question of fact alone which is not an Abalos point for the respondents. Professor Tattersall was an expert witness. He propounded a thesis which, let us assume, we did not like but for the purposes of the argument we accept: you must refer in the case of a persistent abnormality. An analysis by the Court of Appeal in great detail of the doctors' notes revealed that, first, precisely what that abnormality was which was persisted was not entirely clear, and your Honours will see reference in the judgment of the Court of Appeal at page 188 between lines 10 and 30:

The professor based his opinions upon his interpretation of the notes kept by the first, second and third defendants, concluding that they demonstrated the presence of a persistent abnormality.....The nature of the persisting abnormality of which Professor Tattersall spoke is not entirely clear -

and so on. Then, if your Honours go to page 193 - and we do not have difficulty with what shortly follows at line 21:

Unfortunately his Honour did not analyse those entries -

that is to say in the doctors' clinical notes -

in the context of his discussion of the issue with which I am now dealing.

That is to say whether or not there was a persistent abnormality. At line 34 at the end:

a finding of negligence could only follow from the conclusion that both doctors had been confronted with a relevant persisting abnormality. In my opinion it was necessary for his Honour clearly to identify the persistent abnormality -

Just to follow it through, if your Honours then go to 202, line 25:

It was not a case, in my opinion, in which it would have been at all appropriate for the third defendant to have said to the plaintiff "I do not know what is causing these conditions, we must search elsewhere". As it seems to me the factual basis for the opinions expressed by Professor Tattersall simply does not exist.

And he goes on to deal with the weight of the evidence and later, indeed, at 207, his Honour includes in that analysis of the evidence the fact that there was a preference by the Court of Appeal for the judge's notes effectively in any circumstances where there was an inconsistency with the evidence given by the plaintiff.

TOOHEY J: That is a very strong finding, is it not, for the Court of Appeal to make, to say that the factual basis for the opinions simply does not exist?

MR HARRISON: It is, your Honour, but it does not, with respect, require a rejection of anything Professor Tattersall had to say in expressing his opinion, that, in my opinion, the standard should be judged by what should happen if there is a persisting abnormality. Indeed, it goes to the basis of the opinion that the respondents failed.

TOOHEY J: I am not clear, Mr Harrison, exactly how this submission is being put. Is it said that the trial judge erred in accepting Professor Tattersall's opinion because the factual matters upon which he relied were simply not established?

MR HARRISON: Yes.

TOOHEY J: It is put as broadly as that, is it?

MR HARRISON: It is put as broadly as that, your Honour.

HAYNE J: Did the judge find that the patient had presented to the doctors with pain in one breast which was not cyclical and which was associated with tenderness?

MR HARRISON: Not necessarily in those terms, but the evidence that he accepted - I should go back a space. He does not deal with it, in my recollection, in specific terms to say that, but the inference from his decision must have been that whatever it was with which the plaintiff presented to these doctors was not cyclical, was persistent and, by definition, to the extent that it remained unexplained, was abnormal. But, with respect, as the Court of Appeal analysis demonstrates, his Honour did not do the analysis of the doctors' notes which track the history - and your Honours do not have the benefit in the short time we have to have that analysis redone - but an analysis of those notes does not reveal, indeed the Court of Appeal expressly found that it did not reveal, a basis for saying that there was an abnormality which persisted. It is only upon that basis that the hypothesis generates the next leap to require the practitioner to refer for investigation.

BRENNAN CJ: Is it right to say that the question of persistent abnormality or no depends entirely upon an interpretation of the written notes of the medical practitioner defendants?

MR HARRISON: In a factual sense, yes. Professor Tattersall's opinion was that it represented a persistent abnormality but an analysis of those notes, as a matter of fact, regardless of whether you accept him as a witness and the Abalos - - -

BRENNAN CJ: I am not asking for the interpretation of it, what I want to know is were those the exclusive foundation for the answering of the question, "Was there a persistent abnormality?" or did it also depend upon the acceptance or rejection of oral evidence given by the plaintiff as to whether she had made complaints of a persistent abnormality?

MR HARRISON: It carried with it the rejection of the plaintiff's evidence. In other words, it required a preference of the notes over the plaintiff's evidence. Your Honours will be reminded that on the primary issue upon which the case was fought, was there or was there not a clinically detectable lump, the first issue that the plaintiff ran and lost on, the court at first instance rejected the plaintiff's evidence on that issue.

TOOHEY J: But are you using "persistent abnormality" in the sense of an abnormality which continues in the particular form in which it is first detected, or is Professor Tattersall looking at a series or a number of complaints made by the plaintiff which, in the end, amount in his view to a condition which warrants investigation?

MR HARRISON: With respect to the professor, he does not, in my submission, make it entirely clear. He spoke of a persistent abnormality in the sense of something that did not go away and an abnormality being either a sign or symptom or complaint in that category. As I stand here, I have no recollection of him having made any more technical or significant definition of that terminology which underpinned the thesis that the plaintiff secondarily relied on.

BRENNAN CJ: If Professor Tattersall, on being presented with the written notes, concluded that they revealed a history of complaint of persistent abnormality of the relevant kind, how did the Court of Appeal come to the contrary conclusion?

MR HARRISON: Because simply looking at them, going through them line by line as I did, referring to breast pain - it is difficult without going to them, your Honour - - -

BRENNAN CJ: Yes, of course.

MR HARRISON: - - -but the case that was made out demonstrated that if there was breast tenderness on day 1, one came back a week or 10 days or two weeks or a month later, breast tenderness gone or breast tenderness described in a different way. Then it disappears. The specialist's consultations and the general practitioner's consultations covered a period of years. When one reads those, as a simple matter of fact, there is no abnormality which starts on day 1 and you turn round and look at day 2 and, sure enough, it is still there. That was the painstaking analysis that we had to go through, which his Honour Mr Justice Clarke ultimately accepted and the Court of Appeal accepted, demonstrated that there was no recorded persistent abnormality. Professor Tattersall's thesis clearly falls away - even if I accept for the purpose of the argument that it is a good one, and the second argument we had about it said it should have been attacked on that as well - it falls away if that factual basis is not there.

But can I just say this, your Honours: the second attack we made upon it, for the purposes of prudent medical practice in this country, which the Court of Appeal did not analyse, is a significant point.

BRENNAN CJ: It does not arise at this stage, does it?

MR HARRISON: It does not.

BRENNAN CJ: But it is significant as a ground in favour of the grant of special leave.

MR HARRISON: I am not dicing with death, your Honours. I understand that. But my point is, by comparison with that point upon which we do not need to rely, of which we do not have the benefit and which clearly must wait another day, without having to deal with that point, the Court of Appeal in its role as an appellate court was justified in analysing, in my submission, the clear evidence that it had; that it did not require a rejection of anything more than an opinion. This is not the case of Professor Tattersall being a witness of contemporaneous facts in the course of the proceedings either about which he had an interest or which tested his recollection. He was required to examine - he was in no better position, if you will, as an expert witness coming to the notes than the court was with the benefit of all of them and some analysis in the Court of Appeal proceedings.

No point of principle arises, in my submission, which would attract special leave. It is a matter of fact and the Abalos principles have not been offended by anything that the Court of Appeal has done. Indeed, with respect, they were justified in replacing correct, again with respect, analysis of the factual position that his Honour the trial judge clearly did not carry out. I think the parties are joined on that issue.

BRENNAN CJ: Yes, Mr Jackson.

MR JACKSON: Your Honours, may I say two things in response to our learned friends. The first is this, that it is not right, with respect, to say that the view expressed by Professor Tattersall depended entirely on what was contained in the notes and nor is it correct to say that the primary judge's view of the complaints that there had been was to be seen only in the notes. Your Honours will see that at page 14, in the last paragraph on the page. What his Honour said was that he preferred:

generally speaking, the recollections of the defendants, based as they are on contemporaneous notes. However, I emphasise the word "generally". None of the defendants has any independent recollection -

And your Honours will see the last two lines:

I believe that she did draw these -

these being the fact that she:

was genuinely troubled for at least two years.....by "lumps in her breast"......to the attention of the defendants and that they examined the area she pointed to. I accept that she believed -

and so on, your Honours will see, through to the remainder of that paragraph. Your Honours have also seen what his Honour said at page 7 and page 8.

Your Honours, so far as the evidence given by Professor Tattersall was concerned, I had referred your Honours earlier to, I think, page 84 and to page 85 where he gave ultimately the evidence which was critical on the matter, but the pages preceding that go on for several pages where he was cross-examined about the notes of the two doctors who were the defendants and in circumstances, your Honours, where he had been right through them and various matters such as those my learned friend is putting to your Honours now had been put to him, and his view was expressed on the relevant matters after all that had been gone through.

Your Honours, those are our submissions.

BRENNAN CJ: Mr Jackson, at the end of the day, would it then come - I am trying to identify the issues that would arise in this Court - would it come down to a question of this Court determining whether or not, after an analysis of those notes, the finding of persistent abnormality that was relevant to Professor Tattersall and which he thought existed should be affirmed?

MR JACKSON: Yes, your Honour, it must come to that, although we would put it slightly differently. We would put it differently in the sense that - - -

BRENNAN CJ: Does it not amount then simply to a fact issue in this case?

MR JACKSON: It does, your Honour, but a fact issue in this way - and if I could say that and add a qualification to it. It is a fact issue, of course, because ultimately it depends upon whether the Court of Appeal was correct in what it did. Now, the determination of that question is one which, we would say, is prima facie - the Court of Appeal prima facie adopted an incorrect approach by not accepting the judge's acceptance of Professor Tattersall's evidence. The second thing we would say is that no doubt the respondents would try to maintain that by doing the same thing as they did in the Court of Appeal.

TOOHEY J: Why is that just a fact issue?

MR JACKSON: I am sorry, your Honour, it turns on issues of fact.

TOOHEY J: Indeed, it turns on issues of fact, but - - -

MR JACKSON: And it is in that sense that I say it is just a fact issue. But, your Honour, I do not mean to demean - and that is what I was going to say in consequence of that, because it is very important because what your Honours will see is that the approach taken by the Court of Appeal does effect, in our submission, a miscarriage of justice because what the Court of Appeal has done has been to do the very thing, in the words we have extracted from Hontestroom and so on in paragraph 23 of our submission, to prowl through the evidence, as it were, and to find the parts that - analyse it in every way themselves without giving any sufficient weight to the view taken by the primary judge. That sort of case is the one that the Court, no doubt not necessarily ordinarily, but it is one of the classes of case that the Court is here to dispose of even though it involves no much larger principle.

BRENNAN CJ: Thank you, Mr Jackson. The Court will briefly be considering its decision in this matter and hopes to be in a position to give a decision in the matter at 12.45 pm.

AT 10.07 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 12.48 PM:

BRENNAN CJ: Justice Toohey would grant special leave in this case but Justice Hayne and I are of the opinion that the case turns substantially on the interpretation attributed to the written notes of the respondent practitioners. The Court of Appeal examined those notes and reached a conclusion adverse to the finding of persistent abnormality made by the trial judge. So viewed, the case is essentially one of fact. The case involved a minute examination of the applicant's relevant medical history as revealed in those notes and it would not be right to grant special leave to re-examine the same material. For that reasons, special leave will be refused.

AT 12.49 PM THE MATTER WAS CONCLUDED