Suleski v Sons of Gwalia Ltd [2006] HCATrans 417 (4 August 2006)

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Suleski v Sons of Gwalia Ltd [2006] HCATrans 417 (4 August 2006)

Last Updated: 4 September 2006

[2006] HCATrans 417

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P64 of 2005

B e t w e e n -

BORIS SULESKI

Applicant

and

SONS OF GWALIA LTD

Respondent

Application for special leave to appeal

CALLINAN J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 AUGUST 2006, AT 1.57 PM

Copyright in the High Court of Australia

MR M.D. COLE: May it please the Court, I appear for the applicant. (instructed by Terrace Law)

MR P.V. BATROS: If the Court pleases, I appear with MR D.W. WILLIAMS for the respondent. (instructed by Mullins Handcock)

CALLINAN J: Yes, Mr Cole.

MR COLE: What essentially stands between the applicant and his provisionally assessed damages was the finding by the trial judge that Loreck had said to the applicant to stay with the digger on the pit floor. Suleski denied this. There was no other evidence, verbal or documentary, to corroborate Loreck’s assertion and, accordingly, this is the equivalent of being verballed in a civil trial. In relation to the trial judge’s findings – these are contained in the application book at page 32 - - -

CALLINAN J: Is your special leave point, such as it is, that you should have been allowed to treat a witness as a hostile witness and cross-examine him; is that correct?

MR COLE: That is correct.

CALLINAN J: Is there any other special leave point that you would wish to agitate?

MR COLE: No, that is correct.

CALLINAN J: All right. Please show us what the departure was between the evidence that the witness could reasonably be expected to give and the evidence that he in fact gave?

MR COLE: By reference to the documents that are referred to – there is the three documents in the - - -

CALLINAN J: Where do we find those, Mr Cole?

MR COLE: The three documents that were referred to are, first of all, the statutory declaration at page 1 of the application book. I specifically refer your Honour to page 2 – this is of the statutory declaration – paragraphs 11 and 12.

CALLINAN J: We will just read those:

I did not instruct him to climb the batter or work from an elevated point within the pit.

Yes, all right. Is there anything else in that document?

MR COLE: There is nothing else in that document. The important point in relation - - -

CALLINAN J: Thank you. The next document you want to refer us to?

MR COLE: The next document we refer to is the accident investigation report at page 7. In relation to that document, that document is noticeable by its absence of anything from Mr Loreck in terms of what he wants to allege. So he is given the opportunity to say “What acts/failure to act or conditions contributed most directly to this accident” and he has put a dash there. There is the opportunity in the next box, if I describe it that way, “Other personal and job factors which indirectly contributed to this accident” and, again, he puts a dash. “Steps taken to prevent similar recurrence” and he says:

ENSURE PERSONNEL ARE AWARE OF CORRECT PROCEDURE CLIMBING UP AND DOWN 5 METRE FACES.

Nowhere does he say there that the applicant disobeyed his instruction or he gave an instruction to stay on the pit floor or that he had.....the vertical face already.

CALLINAN J: You said there was a third document.

MR COLE: The third document is not actually in the application book but it is referred to in the Court of Appeal’s reasons for decision. This is contained at page 55 of the application book and going on, right at the bottom, in paragraph 35 of the reasons for decision. Perhaps the only thing I should add there that would not be clear from the reasons for decision of the Court of Appeal is that the date the fax was sent, because the document has not been produced to the Court, was actually 7 June. You will see the date there just simply says “Friday June”.

CALLINAN J: Yes.

MR COLE: So, again, it is a very contemporaneous document a month and a day after, so within a month of the incident occurring.

CALLINAN J: Now, you sought to tender Mr Loreck’s report; is that right? You tendered those documents, did you? Am I correct about that?

MR COLE: In relation to the statutory declaration, application was made at the conclusion of his – your Honours will be aware of the unusual circumstances. It is referred to in the summary of argument as to why Mr Loreck was called by the applicant. At the conclusion of his cross-examination by the respondent, application was then made to cross-examine Mr Loreck by the applicant. It was referred to, in particular, the statutory declaration and that it was not seen by his Honour the trial judge but we read the relevant paragraphs to him and he refused the application to cross-examine and we say, effectively, in relation to that point, he misconstrued the law that relates to cross-examination of what I would perhaps neutrally describe as – because it is now referred to that in the Eastern States Evidence Act – an adverse witness. He placed great - - -

CALLINAN J: Mr Cole, I am sorry, I just need to get precisely what happened clear in my own mind. I know you deal with it in your summary of your argument, but which documents of Mr Loreck did you rely upon as the plaintiff and did you tender those documents?

MR COLE: No, we were not permitted - - -

CALLINAN J: Just tell me what happened, please. Mr Loreck was called, was he, by?

MR COLE: Yes, by the applicant, the plaintiff in the proceedings.

CALLINAN J: By you, yes.

MR COLE: Yes. We were not permitted to put the statutory declaration to Mr Loreck, so it was not an exhibit before the District Court. We sought leave to cross-examine him about it and put it to him. We subsequently sought permission - - -

CALLINAN J: Did you adduce any evidence-in-chief from him?

MR COLE: Yes, that is correct.

CALLINAN J: You adduced evidence-in-chief and you say at page 69 of your further amended summary of argument, paragraph 2:

It was necessary for the Applicant to call LORECK as LORECK was the only known person who could give evidence . . . It was known in calling LORECK, that LORECK may give evidence to say that he had told the Applicant to stay on the pit floor.

So that you knew when you called Mr Loreck you were taking a chance that he would give evidence adverse to your client; is that correct?

MR COLE: That is correct.

CALLINAN J: Well, you took your chances, did you not, when you called him? This is an adversary system.

MR COLE: I understand that, but it is nevertheless a system in which it is open to the discretion of a court to put to that witness especially documentary evidence that would indicate to the court that what he is saying in terms of part of his evidence should not be accepted by the court.

CALLINAN J: In most States – and I cannot speak for Western Australia – a document can go in if the maker of the document is called as a witness, and sometimes there are other conditions, but is there any similar provision in Western Australia?

MR COLE: The difficulty is normally we would not be permitted to put such a document - - -

CALLINAN J: No, please, that is not really an answer to my question, Mr Cole. Is there a provision of the Evidence Act that allows a document to be tendered if the maker of the document is a witness?

MR COLE: I am not aware of such a provision. We would not normally be allowed to produce such a document on the basis that the witness should give oral evidence. If he is available to give oral evidence, he would not normally be permitted to put a document which was a previous statement that he had made.

CALLINAN J: Well, you say that, but is there a Western Australian Evidence Act?

MR COLE: Yes, there is indeed, your Honour.

CALLINAN J: Is there anything on the topic at all in relation to the tender of documents?

MR COLE: I unfortunately do not have the Evidence Act before me, your Honour, but, as I indicated, it is not my understanding that is the case.

CALLINAN J: Well, it is different then from every other State of which I am aware and I think different from the Evidence Act (Cth) too.

MR COLE: I think the issues in terms of whether it is able to be tendered obviously is also different from the issue about whether we are then able to ask him some questions about it. That, it seems to me, is the nub of the argument in terms of the appeal and, of course, of the trial and before the Court of Appeal. We sought permission to ask questions in relation to that statutory declaration which was denied. It was denied on the basis that the trial judge essentially was saying that they are not inconsistent.

Now, that is the issue that we take major challenge to. It seems to me inevitably they must be regarded as inconsistent. You cannot reconcile paragraph 11 because paragraph 11 follows into 12 where it says he “expected” him. It is clear that what Loreck was saying in a contemporaneous document was that he expected him to remain on the pit floor, not that he told him to stay on the pit floor. That is the significant difference in relation to the matter.

It is in relation to that point that I would submit that that is where the Court of Appeal – at least the Court of Appeal, in terms of looking at these documents, examined them, but the Court of Appeal in relation to the matter – and this is at page 58 of its reasons for decision, in the first paragraph at the top, he says:

In essence, however it –

and that is referring to the statutory declaration –

reiterated that Mr Loreck’s instructions to the appellant were to supervise digging of batters in the open pit and to remain on the pit floor with the digger.

That is not correct. It was his expectation, he said, that he was to remain on the pit floor, not that he told him. It seems to me that the Court of Appeal misconstrued that point in relation to it and then goes on to bolster their view in relation to the matter by only referring to the second part of paragraph 12 of that statutory declaration about that he did not instruct him to go up on to the batter. It does not make reference at all to, “I expected BORIS to work from the pit floor.”

So I think, your Honour, that our essential point in relation to the documentary evidence is that we would expect that the trial judge should have reference to the documentary evidence in trying to ascertain which was the correct position, namely, the applicant’s or Mr Loreck’s evidence, rather than just simply relying upon speculation about memory, but the trial judge - - -

CALLINAN J: Judges in an adversary system do not conduct an inquiry. The parties define the issues and it is an adversary system. The judge is not at large to conduct an inquiry.

MR COLE: I accept that entirely, your Honour. The point that I am making is that two of those documents that I have referred to he clearly had before him, that is the second two documents, the facsimile and the accident investigation report, and in relation to the crucial issue, that is the only issue upon which my client failed, his Honour makes no reference to either of those documents, which on the face of it must be an error. They are contemporaneous documents both prepared by Mr Loreck. It seems to me a substantial miscarriage of justice occurs when that happens.

I understand that your Honour may wish to say we have taken a gamble in relation to Mr Loreck in terms of – and we could not get the statutory declaration. I do not accept that, but I understand that the Court could take that view. But on what basis can the trial judge and the Court of Appeal simply ignore those two other documents? It seems to me the Court of Appeal does look at them but then it proceeds to gloss over them. I think the essential point that I would be asking the Court to focus on is: does the Court accept the gloss that the Court of Appeal put on those documents?

Our argument is you cannot accept that gloss. The plain meaning of the English words is not that he told Suleski to stay on the pit floor; he said that he expected, but equally there was nothing in those two other documents that would support his assertion that he said all of those things, which in itself must have raised in the judge’s mind a query about this aspect. I have no further submissions, thank you.

CALLINAN J: Mr Batros. Is there a Western Australian Evidence Act, Mr Batros?

MR BATROS: Yes, your Honour, and with great respect to my learned friend, he is obviously not aware of section 79C of the Evidence Act of this State which is the common section which allows for the tendering through a witness who is called viva voce and is therefore available for cross-examination of prior statements or statements made by him. Let me reassure you we do have such a section and it is section 79C.

CALLINAN J: What are the conditions that have to be satisfied under that section to enable a prior statement in writing of a witness to be tendered?

MR BATROS: They are the standard requirements and I am reading from section 79C(2):

Where a statement referred to in subsection (1) is made by a qualified person or reproduces or is derived from information in a statement made by a qualified person, that person must be called as a witness unless:

(a) he is dead;

(b) he is unfit by reason of his bodily or mental condition to attend or give evidence as a witness;

(c) he is out of the State and it is not reasonably practical to secure his attendance - - -

CALLINAN J: But if he is called, all that is necessary is that the matters are matters within his personal knowledge, is that right, something to that effect?

MR BATROS: Basically, your Honour, yes, but an application has to be made obviously under that section, and it never was in this case. The application made in this case was totally misconceived. It was an application on a misunderstanding of the law relating to hostile witnesses. Where the applicant’s case has always miscarried in this is that whereas the law was properly applied by the Appeal Court, namely - - -

CALLINAN J: Mr Batros, we do not need to hear you any further, thank you.

The applicant seeks to pursue the question of the circumstances in which a party should be given leave to cross-examine that party’s own witness. The matter arises out of the particular facts of the case. We are not persuaded that the decisions either of the trial judge or the Court of Appeal on this issue are attended by sufficient doubt to warrant a grant of special leave. Accordingly, the application is dismissed with costs.

Adjourn the Court to Adelaide at 2.15 pm on Monday next.

AT 2.16 PM THE MATTER WAS CONCLUDED