The Nominal Defendant v The Australian Capital Territory C11/1999 [2000] HCATrans 232 (12 May 2000)

IN THE HIGH COURT OF AUSTRALIA

Registry No C11 of 1999

B e t w e e n -

THE NOMINAL DEFENDANT

Applicant

and

THE AUSTRALIAN CAPITAL TERRITORY

Respondent

Application for special leave to appeal

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 MAY 2000, AT 10.02 AM

Copyright in the High Court of Australia

MR L.M. MORRIS, QC: May it please the Court, I appear for the applicant with my learned friend, MR M.A. MCDONOGH. (instructed by Abbott Tout Harper & Blain)

MR C.M. ERSKINE: May it please the Court, I appear for the respondent. (instructed by the ACT Government Solicitor).

HAYNE J: Yes, Mr Morris.

MR MORRIS: Your Honours, dealing first of all with the threshold hurdle which we have to cross, namely, the provisions of section 35 of the Judiciary Act, I accept that in the circumstances of this case it may be difficult for me to comply with the strictures of public importance within paragraph (a) of that section. But it is our respectful submission that we can make out a case under (b) because of the errors of reasoning and the failure of both the Court of Appeal in the Territory and the Full Federal Court to apply the clear principles in the House v The King.

But there is also a secondary substratum of error which appears, we would respectfully submit, from a reading of the majority judgment in the Full Federal Court. In saying that, we would respectfully wish to adopt the proposition that the Chief Justice of the Australian Capital Territory, Mr Justice Miles, in his dissenting judgment, appropriately approached the problem and dealt with it, whereas the majority failed to comply with the strictures of House and Mallet, which followed it. I think that Mallet was a case in which your Honour Justice Callinan appeared as counsel and was successful on an application not dissimilar from the one I am here to promote or argue.

HAYNE J: Podrebersek deals specifically with the caution that appellate courts should exercise in interfering with questions of apportionment, I think.

MR MORRIS: That, of course, I would seek to use in my favour in sustaining the judgment of the Master. And the reason I would seek to do that, if I may take your Honours just very quickly to what we respectfully submit are the errors which make the majority judgment wrong.

If I might take your Honours to page 79 of the book and it is line 22 in type, but it appears in the last paragraph where the reasoning commences, and might I read it:

In the result, the majority in the Full Court reduced the contribution of the first respondent from approximately 66% to 25% of the damages awarded. That is a reduction of approximately 41% of the total damages awarded. Such a reduction cannot be categorised as only or merely tinkering at the margins of what is otherwise a judgment within the range of sound discretionary judgment.

So what the court has used here as the justification is the magnitude of the reduction without looking for an underlying error.

HAYNE J: In criminal sentencing, after all, manifest excess is a recognised form of reasoning. Why is this not analogous?

MR MORRIS: This is inductive reasoning where you look at the result and reason back and say it must have been brought about by error.

HAYNE J: Yes, as House recognises.

MR MORRIS: But deductive reasoning is what is necessary where you are dealing with the principle of just and equitable and the person who originally exercises the discretion has a demonstrable advantage which this Court overlooked, with great respect to the Court.

CALLINAN J: Mr Morris, the objective facts were not in dispute, were they? That is why it might be difficult to say that the trial judge had an advantage in a case like this.

MR MORRIS: Might I come to it immediately, because it springs out of a passage on the next page, at page 80 of the book, line 23 of the judgment reference:

Having determined that there was error to the degree that it vitiated the Master's decision on the issue of contribution, it was for the Full Court to substitute its own decision if it was in a position to do so. In the present case nothing depended upon the advantage of the Master in seeing the witnesses on trial.

That is in complete defiance with apportioning the Master's judgment at page 6 of the book at line 17, where he makes reference to the fact that:

a view was undertaken of the scene of the accident. This was arranged for before normal court sitting time on the second day of hearing. This was an appropriate course in the circumstances of this case. A view now forms part of the evidence in proceedings, pursuant to section 54 of the Evidence Act -

Now it is clear from that passage, with respect, that not only did the Master use the view as evidence, because he says so, but he regarded it as a necessary step in determining not only primary liability but, presumably, in dealing with the full fabric of the facts which he had to deal with.

CALLINAN J: But, Mr Morris, accepting that to be so, there is a very complete description in all relevant respects of the scene of the accident, of the barrier, and everything that one would need to know, which I would have thought was an uncontroversial description in the reasons for judgment.

MR MORRIS: Well, your Honour, might I just develop this, if I may, because it does not end there and, with great respect, it seems that in addition to the description of the accident, the Master lay great value on this occurrence, because at page 9 of the book, at the end of the first paragraph, he goes on to deliver an account of what occurred on the view:

The length of the barrier was not referred to in any of the expert reports, although Counsel and I walked its entire length on the view. For a very small part of this length, perhaps 4 metres, a person stepping over it would not step onto a grassy verge, but into space before striking the concrete floor of the underpass some 4 metres below the road surface.

CALLINAN J: That is the purpose of the barrier, is it not, to prevent cars going into these sorts of spaces?

MR MORRIS: All that had to be done, and it seems to be common ground in the case - I was not in the case, but it seems to be common ground - was that a notice or a very cheap barrier could alert persons, because the "w" frame was about the height of the Bar table, to the fact that there was a void, and the Master comes to that and deals with it as though it were a hidden trap.

HAYNE J: And that two-thirds responsibility should rest with the road authority?

MR MORRIS: That is what he found, and there is no attack on the reasoning anywhere in the appellate process, except for Mr Justice Higgins to say he thinks it is excessive, and that does not fulfil the established criteria in House v The King, and Mallet, and Lovell and the other authorities to warrant the occurrence of that interference, and really I do not know that I can put it any more - given the obvious advantage that the Master had at the time, and given the fact that even in the Full Federal Court, with a dissenting judgment and of Chief Justice Miles, no reasoning could be found through which the original discretionary judgment could be attacked, and I do not know that I need to take the Court to House or to Mallet, but I am very happy to do so, because we respectfully submit that what has been done here has resulted in a plain injustice to my client.

HAYNE J: But House recognises that:

It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion -

that so much is plain vanilla law, is it not?

MR MORRIS: Well, I accept that is what is said in House, and I accept I have to deal with that, but if that was what was to be done here, the court would have to say, "This apportionment is plainly unjust, it is plainly unreasonable and it is unjust and it is unreasonable for the following reasons". Not "unjust and unreasonable because of the percentage change brought about by the Full Court", which is used, given that there is that percentage change, there must have been an error. That is a sort of bootstraps argument, in our respectful submission. It does not comply with the caution in House, which is that the established principles demonstrate that it is not enough that the judges composed in the appellate court consider that if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. Now, when you come to that error, it remains unidentified, there is no transparency, and they do not say that the result was plainly unjust or unreasonable.

It goes further than that in Mallet where, at page 634, Mr Justice Wilson made this comment in the context of House, that:

It follows that, consistently with established principle, an appellate court is not entitled to substitute its own decision for that which is the subject of the appeal merely because it prefers a different result or even merely because it thinks that a different result would be more just and equitable. Before it intervenes, it must be satisfied that the decision is clearly wrong.

And we say that what has happened here is, it has only been demonstrated that it is clearly wrong because of the percentage which was adopted by Mr Justice Higgins, who himself merely says, "Well, I think it is excessive", and all of that is done when the tribunals reviewing it have not had a view, which was regarded, in my respectful submission, as central to the primary judgment. If your Honours please.

HAYNE J: Yes, thank you, Mr Morris. We need not trouble you, Mr Erskine.

The decision of the Full Court of the Federal Court, in our opinion, is not attended by doubt. Special leave will be refused.

MR ERSKINE: I seek an order for costs, may it please the Court.

HAYNE J: Yes. Can you resist costs, Mr Morris?

MR MORRIS: I cannot oppose that, your Honour.

HAYNE J: Special leave will be refused with costs.

AT 10.15 AM THE MATTER WAS CONCLUDED