Crawley v Ross-Sampson & Anor [2005] HCATrans 97 (4 March 2005)

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Crawley v Ross-Sampson & Anor [2005] HCATrans 97 (4 March 2005)

Last Updated: 16 March 2005

[2005] HCATrans 097

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S639 of 2003

B e t w e e n -

PHILLIP MARK CRAWLEY

Applicant

and

DARREN ROSS-SAMPSON

First Respondent

and

DARRELL ROSS-SAMPSON

Second Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 MARCH 2005, AT 11.17 AM

Copyright in the High Court of Australia

MR C.T. BARRY, QC: May it please the Court, I appear with my learned friend, MR P.A. BEALE, for the applicant. (instructed by Andrew Fegent & Company)

MR R.W. SETON, SC: If it please the Court, I appear with my learned friend, MR K.J. KELLEHER, for the respondents. (instructed by Hunt & Hunt)

GLEESON CJ: Yes, Mr Barry.

MR BARRY: Your Honours, the point of principle that this application raises is whether the basis rule, as it is known, has survived section 79 of the Evidence Act. Your Honours will recall the common law position when it came to expert opinion evidence and the facts upon which that expert evidence was given. This is a case, which I will seek to demonstrate, your Honours, where the Court of Appeal has proceeded upon different factual assumptions than those that were found by the trial judge, and the result of that was that the trial judge’s findings of fact, based upon things such as credibility and her Honour’s own observations of the accident scene, were put to one side in favour of the adoption of largely unspecified assumptions made by an expert called by the defendant at the trial.

May I take your Honours to how that matter arises, but before I do so can I just identify what the point of principle is and why there seems to be some controversy about it. In the materials that were sent up to the Court there was one case identified, Neowarra v Western Australia [2003] FCA 1399; (2003) 134 FCR 208. That case, although at first instance, conveniently summarises the point about which there appears to be a difference of opinion. May I take your Honours to page 214 of the judgment. At the bottom of the page, your Honours will see a reference to opinion evidence. There are then set out the provisions from the Evidence Act. Section 76 is what is called the exclusionary rule. Section 79:

If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

That is the statutory regime, as it were, for expert evidence nowadays. His Honour Justice Sundberg then went on to discuss the way in which that enactment came about and then referred to what your Honour Justice Heydon had said in Makita v Sprowles. At the bottom of page 217, there is a quotation from the relevant passage of what your Honour then said. About halfway down page 218, referring to what your Honour Justice Heydon had said in Makita v Sprowles, his Honour said:

That seems to me, with respect, to be restoring the basis rule.

And went on with various other observations in relation to that and concluded, at page 219, with a reference to what the Full Federal Court had said in Sydneywide Distributors, about half-way down that page:

See also at [7] where her Honour expressed the view that Heydon JA’s approach should be “understood as a counsel of perfection”, and that a reading of his reasons as a whole revealed that he recognised that in the context of an actual trial, the issue of admissibility of evidence tendered as expert opinion evidence “may not be able to be addressed in the way outlined in the above paragraph”.

HEYDON J: That controversy is about the test for the admissibility of opinion evidence. Here the opinion evidence was admitted without objection, was it not?

MR BARRY: It was. The question that then arises is, if the trial judge has made findings of fact, particularly those based upon the exceptions and rejection of evidence of witnesses, what does the Court of Appeal do with those findings of fact if they are based on credibility? On what basis can - - -

HEYDON J: That is a different question from section 79 of the Evidence Act, though.

MR BARRY: It is. That is the first limb. Plainly enough, we need to demonstrate error in what the Court of Appeal did in the way in which it dealt with the appeal. But we say the point of principle that the application gives rise to is this question of what is left after section 79 of the requirement that courts ought to examine, and have proved, the basis of the opinions, in the sense of the facts upon which the expert opinions are based. Otherwise, you would simply have a case – you could certainly take one extreme view. Otherwise, you could simply say, in section 79, someone would turn up in a routine case such as this and say, “I’m an expert engineer. I’ve looked at the circumstances of this accident and my opinion is that the accident was caused by X”. On one view, section 79 would permit that course to be taken, because there is no requirement, as there was at common law, for the basis of the view to be included in the analysis.

GLEESON CJ: I would like to understand, a little better than I do, how this question of principle arose or arises in this case. It is a case about whether or not a following vehicle struck a motorcycle or whether the motorcycle skidded and came to grief without being struck by the motor vehicle. It sounds like an issue of fact. How does the question of principle, to which you are referring, arise?

MR BARRY: Because the Court of Appeal proceeded upon factual assumptions other than those that had been found by the trial judge.

GLEESON CJ: Can you just show us where the Court of Appeal is falling into error? Which is the part of the reasoning of the Court of Appeal that you criticise?

MR BARRY: Page 40, line 35, is the start of what we say is the error that was made. Your Honours will see that there was the finding of the court:

but as I do not consider the case to be one depending upon the credibility of either –

that is, of either the applicant or the respondent –

it is unnecessary to explore that question any further.

It, of course, was a case which depended upon the credibility of the two principal witnesses. That was the first error that was made.

HEYDON J: It depended on the correctness of their reasoning, but did it depend on credibility, sincerity, and so on?

MR BARRY: It is assumed that there was no difference as to the way in which the events had been described by the two principal exponents of the different versions and that was not right. One said, “I was hit from behind”, the other said, “I saw nothing untoward occur which would have caused this cycle to leave the roadway”.

GLEESON CJ: The reasoning from paragraph 37 on page 40 through to page 44 seems to turn upon matters of evidence unrelated to the experts, does it not, and a criticism of the way the trial judge approached certain evidence?

MR BARRY: It does, except the conclusion of the trial judge was based largely upon findings made as to the circumstances of the accident. If one sees at, for example, page 41, line 30, where the Court of Appeal said:

contrary to their version of events, found that the motorcycle had “flipped” while it was still on the roadway.

There was, in fact, no such finding. There was a finding that there was evidence accepted by her Honour that the cycle flipped, that is, rolled over - - -

GLEESON CJ: Paragraph 45 summarises the significance of the expert evidence, does it not?

MR BARRY: It contains a conclusion which is not inconsistent with what the trial judge had found.

GLEESON CJ: My difficulty at the moment, I must say, Mr Barry, is to see how this case raises the issue of principle that you want to argue about. In fact, I cannot see that issue being discussed anywhere by the Court of Appeal.

MR BARRY: It is not, in terms, discussed and I concede your Honour’s point in relation to that. Those are our submissions.

GLEESON CJ: Thank you, Mr Barry. We do not need to hear you, Mr Seton.

The outcome of this case in the Court of Appeal turned entirely upon the Court of Appeal’s appreciation of the facts. The case raises no issue of principle suitable to a grant of special leave and we are not persuaded that the interests of justice require such a grant. The application is dismissed with costs.

AT 11.28 AM THE MATTER WAS CONCLUDED