Abdul-Massih v Abdul-Massih M127/2001 [2002] HCATrans 435 (13 September 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M127 of 2001

B e t w e e n -

ATEF ABDUL-MASSIH

Applicant

and

JEANNETTE ABDUL-MASSIH

Respondent

Application for special leave to appeal

GAUDRON J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 SEPTEMBER 2002, AT 10.18 AM

Copyright in the High Court of Australia

MR A.C. ARCHIBALD, QC: May it please the Court, I appear with my learned friend, MR P.H. SOLOMON, for the applicant. (instructed by TAC Law Pty Ltd)

MR J.H.L. FORREST, QC: May it please the Court, I appear with my learned friend, MR T.P. TOBIN, for the respondent. (instructed by Antony, Sdrinis & Co)

GAUDRON J: Yes, Mr Archibald.

MR ARCHIBALD: If the Court pleases. The Court will be aware that we complained in this matter that the Court of Appeal has impermissibly interfered with a pecuniary loss verdict that was well open to a properly instructed jury.

HAYNE J: Can we start from some premises. The principles are well known, are they not?

MR ARCHIBALD: There are three points that are raised. The first of the three points is one that is substantially a miscarriage of justice point in respect of principles which are well known. As to the second and third points that we seek to rely upon, the principles are not clear and may be said to be properly controversial.

The second point of the three points is what we would call the Liftronic point and that raises the question here as to whether the conduct of the plaintiff at trial in allowing that there was some evidence that could support a pecuniary loss verdict of the order of $25,000, operates as a bar to it contending on appeal that there was no evidence that would allow the jury so to decide.

GAUDRON J: Is that a gloss or really just a an amplification of well-understood principles in this area?

MR ARCHIBALD: If one looks at paragraph 45 of Justice McHugh's reasons in the Liftronic Case, he speaks in terms of acquiescence; acquiescence in figures or numbers being allowed to - - -

GAUDRON J: If there was evidence - - -

MR ARCHIBALD: The question is, in our submission, essentially one which flows from the more general Metwally principles that one cannot, on appeal, raise points inconsistently with the conduct of the case below. The question that is in the area of controversy or of the margins of that principle is whether acquiescence of the kind that is involved here does attract the Metwally principles. Justice McHugh, in the reasons in Liftronic, indicated that in his view the acquiescence in numbers being put on the contributory negligence points would operate in that way and that might be said to be at the margins of the principle. What is open here but was raised before the Court of Appeal, although not addressed in the court's reasons, is whether that kind of - - -

GAUDRON J: You were not exactly at the same position, were you, Mr Archibald. There was an agreement as to past economic loss.

MR ARCHIBALD: No, that may not be entirely accurate but I do not think it bears upon this - - -

GAUDRON J: But within the range. I do not think you were at the trial, were you, I am sorry?

MR ARCHIBALD: No, your Honour, I found myself in different waters.

GAUDRON J: Counsel for the defendant did not put a sum about future economic loss.

MR ARCHIBALD: What was put on behalf of the plaintiff, ultimately, was that a total figure for pecuniary loss should be of the order of $270,000 and that was predicated upon past pecuniary loss of $65,000, so, their figure for future loss was $205,000.

The position advanced on behalf of the defendant was that if there were to be an entitlement for past pecuniary loss the figure was $65,000. The figure for pain and suffering should be of the order of $80,000 which, in aggregate, would yield a verdict of $145,000 but that might be rounded up to $175,000 but certainly not beyond $200,000. So, the figures from the defendant's side were effectively $95,000.

GAUDRON J: I just do not understand how you can talk about acquiescence. You were defining the limits of the ambit of your respective positions by reference to the evidence.

MR ARCHIBALD: Yes, and the verdict fell within those limits and the plaintiff now seeks to contend what was not contended below, that a verdict within those limits was not open.

GAUDRON J: I dare say the plaintiff's counsel was, at all times, suggesting a much higher verdict than you were.

MR ARCHIBALD: Yes, but what was not contended on behalf of the plaintiff was that there was no evidence that would justify a pecuniary loss verdict for the future loss of the order of $25,000 and yet, on appeal - - -

HAYNE J: There is a negative tucked in there, is there not, Mr Archibald? Both sides went to the jury with figures being advanced. Neither side, I take it, said to the jury, "If you are against me you can have the other side's figure", it was simply each putting its best foot forward, was it not? So, what is the acquiescence?

MR ARCHIBALD: The acquiescence resides entirely in the proposition that the evidence of Mr Mills, the orthopaedic surgeon, would sustain, if accepted, a pecuniary loss verdict for future of no more than the order of $25,000.

HAYNE J: How is that acquiescence expressed?

MR ARCHIBALD: It is expressed by acceding to the proposition that there was some evidence, constituted by Mr Mills' evidence, which could be relied upon by the jury in relation to its pecuniary loss verdict and that is why - - -

GAUDRON J: Where was that acquiescence and in what terms?

MR ARCHIBALD: It is found particularly at page 163, lines 17 to 28: after the charge interchange between his Honour, experienced trial judge, and counsel for the plaintiff, very experienced trial counsel, his Honour says:

why wouldn't there be some evidence upon which the jury could say, if it wanted to, "We think Mills is right; that this woman has, and will, get back to the point where she could do that sort of work -

counsel said:

I don't want to say anything further about that, your Honour.

His Honour says:

I think there is enough there. It is a skerrick but it seems to me there is enough there not to call for a redirection, even if one were sought.

Counsel's answer, "Yes". "Yes", in our submission, is the clear language of acquiescence in that view.

HAYNE J: What was the redirection being sought?

MR ARCHIBALD: There was no redirection actually being sought. There was toying with the topic, if I can put it that way, perhaps, feeling out the ground. The question that might have been the subject of redirection is the subject matter appearing from line 2, on page 162, which is the very question, effectively, how much or what is the lowest figure that could be justified on the evidence in relation to a verdict for future pecuniary loss.

HAYNE J: All tis is occurring with the jury out, is it not?

MR ARCHIBALD: With the jury out.

HAYNE J: This is counsel's ruminations with the judge. What is to be made of that?

MR ARCHIBALD: If one goes further back into the address to the jury one finds the same point, in our submission. Page 51, lines 7 to 17:

it is a matter for you, in the end, as to how you accept his evidence -

that is, Mills' evidence - see line 5. Line 13:

It is not for me to, and I don't intend, to cast great criticisms on Mr Mills. I simply say to you that the great preponderance of the evidence in this case will satisfy you that the plaintiff's case has been well and truly made out.

So, Mills' evidence was there, proper to be before the jury, was for their evaluation and, if accepted, as the material at 162 and 163 showed, would sustain the verdict that had been made. Yet, the contention on appeal before the Court of Appeal, as one sees from the notice of appeal, was not that there was some evidence constituted by Mr Mills that could be acted upon by the jury but that there was no evidence.

GAUDRON J: Mr Archibald, there was another problem, though, in this case, is there not? The plaintiff appellant contended that there was some inconsistency.

MR ARCHIBALD: Yes, and that ground was lost.

GAUDRON J: That was rejected but it seems to me that is very likely a live issue, or would be a live issue, were special leave to be granted. For my part I think you need to address that because it does seem to me that there is some problem about - - -

MR ARCHIBALD: Can I go to the miscarriage of justice point. The orthodox principle requires an issue of this kind to be addressed by a court of appeal on the view of the evidence most favourable to the contender.

GAUDRON J: Not the inconsistency point.

MR ARCHIBALD: I am sorry, your Honour?

GAUDRON J: The inconsistency point that was raised against you.

MR ARCHIBALD: That ground was raised on appeal and we succeeded on that ground. Three grounds were raised: we won on two, we lost on one.

GAUDRON J: I think you are misunderstanding me. Although that was determined against you, it seems to me it might still be a live issue were special leave to be granted.

MR ARCHIBALD: It was determined in our favour.

GAUDRON J: I know it was but let us assume you got special leave, just make an assumption. It seems to me that could still be a live issue by notice of contention and for my part I think there is some inconsistency. That being so what you have to address, really, is whether there are sufficient prospects of success as well and that it what I am directing you to.

MR ARCHIBALD: Yes. I thank your Honour. We say where the test is clear, that one is obliged to consider the evidence on the view most favourable to the defendant. There was a clear failure by the court here to subscribe to the discipline of that principle.

GAUDRON J: The problem is, is it not, that clearly the jury did not proceed on the view most favourable to the defendant? The jury did not because its award for pain and suffering was clearly not on the view most favourable to the defendant.

MR ARCHIBALD: The controversial area of the verdict is whether it was open to the jury to find pecuniary loss damages for the future of the sum of $25,000, or thereabouts.

GAUDRON J: The figures upon which you rely were predicated also on there being pain and suffering of a kind that would be appropriately compensated by an award of, I think, $80,000.

MR ARCHIBALD: Yes, your Honour, but here the verdicts are split because of the way the statutes operate. One knows that the pecuniary loss verdict of the jury was for $90,000; one knows that the past ingredient of that is of the order of $65,000; so that one knows that the future pecuniary loss verdict is in the order of $25,000. The argument was, was there evidence before the jury upon which the jury could act to conclude that a verdict of that order would be sustainable and that depended essentially upon whether there was evidence that the plaintiff might return to work within one to two years.

At page 188, paragraph 31, of the reasons of Justice Vincent, his Honour said - this is at line 9:

There was no basis whatever upon which the jury would have been entitled to find that the appellant . . . would be able to resume employment within the period of one to two years . . . or that she would have retired in her mid forties -

The evidence before the jury, which, in our submission, was clearly available to them, if they viewed that evidence favourably, as they must have in order to reach their finding, was essentially the evidence of Mr Mills. It is clear that there was such evidence. It is set out in detail in the charge of the trial judge between pages 140 and 143. There is the passage at page 163 to which I took the Court in which, in the interchange between counsel and his Honour, it is accepted that there was some evidence upon which the jury could say if it wanted to, "We think Mr Mills is right". His Honour Justice Vincent, in whose reasons the other members of the court acceded, said, at paragraph 31, page 188, there was no such evidence.

In our submission, it is plain that what the court has done in that passage is to seek to substitute its own view of the evidence not on the most favourable basis - it does not matter whether it was the most adverse or an adverse view - but that the court has substituted its own view without considering what was the most favourable view available to the jury upon which that verdict could be sustained. Nowhere in the reasons does the court ask itself the critical question, the essential question, "What was the evidence which existed and what was the most favourable view of that evidence?"

The only reasoning of the court resides in paragraph 31 where, in our submission, what his Honour has done is essentially move himself back - as he was long experienced in his previous position - to the position in which as a judge, as a tribunal of fact, a judge sitting alone, to form his own view of the evidence and to impose that upon the determination of the court. That is a basal departure from the strictures of the orthodox principles requiring the most favourable view of the evidence to be adopted and it is, in our submission, in clear defiance of the principles which were applicable in these circumstances.

The interchanges at page 162 are a clear recognition that there was some evidence. Once there was some evidence, it was for the jury to apply its mind to that material and on a favourable view of that evidence, as his Honour said, they could say that Mr Mills was right. They have, by their verdict, essentially said that.

HAYNE J: What is the injustice that you say follows in the orders that are made?

MR ARCHIBALD: We say two things. We would suffer, finally, the adversity of interference with a verdict that ought not to have been interfered with at the individual level, and it is a palpable departure which we ought not to have to sustain.

HAYNE J: But there will be a retrial on damages?

MR ARCHIBALD: There would be.

HAYNE J: What is the injustice?

MR ARCHIBALD: Having to undergo the retrial with whatever features might emerge in the course of a retrial, including, no doubt, a rerun of evidence and a whole host of things.

HAYNE J: Is that any more than cost and the risk that the verdict may be higher?

MR ARCHIBALD: In the outcome it may not be but it is the circumstance that one is subjected to a process that one ought not to have to address.

The other thing we would say to generalise the point a little more is that if this kind of approach that is evident at paragraph 31 were to be available to a court of appeal, it really does emasculate what has hitherto been the understanding of the impact and reach of the most favourable in principle.

GAUDRON J: Do you not come back to the fact that one has to accept, by reference to your own argument, that the jury did not proceed on the most favourable view?

MR ARCHIBALD: No, with respect, we do not.

GAUDRON J: Does not the award of damages for pain and suffering indicate that it did not proceed entirely on the most favourable view of the evidence which the defendant was advancing to the jury?

MR ARCHIBALD: No, in our submission, because the circumstances of the award of pain and suffering reflect the different evidence and the different range of matters - - -

GAUDRON J: Exactly.

MR ARCHIBALD: As to which the evidence of Mr Mills did not raise the controversy which is the subject of the pecuniary loss verdict.

GAUDRON J: The difficulty, it seems to me that you have, Mr Archibald, is in this area one must look at individual pieces of evidence, individual aspects of the award of damages, in isolation from the whole of the evidence and in isolation from the whole of the award and then proceed on the basis that individual bits in isolation is the evidence most favourable to the defendant.

MR ARCHIBALD: In our submission, no, the areas of evidence relevant to pain and suffering are discrete from these areas but, more importantly, that is not the basis upon which Justice Vincent proceeded.

GAUDRON J: I know that.

MR ARCHIBALD: His Honour did not canvass the totality of the evidence; did not look at the other evidence. He said, "Standing alone, looking at Mr Mills evidence - - -"

GAUDRON J: No, but it is very relevant to the question whether there was a miscarriage of justice, whether there are prospects of ultimate success.

MR ARCHIBALD: If the proper principle had been applied, in our submission, his Honour must have recognised and the Court of Appeal must have recognised there was some evidence.

The third point, as the Court is aware of, is the Pilkington point, where Justice Charles, to whom which the President joined in his views, observed that there is a controversy as to the reach of the principles concerned with the applicability of the totality of evidence rule. The question is, does it apply to liability matters or verdict matters as well. That, in our submission, is clearly raised in the matters before the Court. If the Court pleases.

GAUDRON J: Yes, we need not trouble you, Mr Forrest.

The principles to be applied by the Court of Appeal in this matter are well known and were referred to by all members of that court in their unanimous decision setting aside the judgment entered at trial upon the jury's verdict.

Whether, as the applicant contends, there was some failure to apply those principles in this particular case raises no point of general application. Insofar as the applicant seeks leave by reference to the requirements of justice in the particular case, it is to be recalled that there is to be a new trial as to damages at which the plaintiff's damages will be assessed again. What the applicant complains of then is the incurring of the further costs of a new trial and the risk that at a new trial a jury may assess damages in a sum higher than the figure fixed at the first trial.

Those are not sufficient reasons, in the circumstances of this case, to warrant a grant of special leave. Accordingly, special leave is refused with costs.

AT 10.41 AM THE MATTER WAS CONCLUDED