Dwyer v Calco Timbers Pty Ltd [2008] HCATrans 13 (5 February 2008)

Last Updated: 5 February 2008

[2008] HCATrans 013

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M88 of 2007

B e t w e e n -

BRETT DWYER

Appellant

and

CALCO TIMBERS PTY LTD

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 5 FEBRUARY 2008, AT 10.21 AM

Copyright in the High Court of Australia

MR J.H. KENNAN, SC: May it please the Court, I appear with my learned friend, MR P.T. VOUT, for the appellant. (instructed by Slater & Gordon)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR J.P. GORTON for the respondent. (instructed by Wisewoulds Lawyers)

GLEESON CJ: Yes, Mr Kennan.

MR KENNAN: Your Honour, the central submission in this appeal is that the Court of Appeal failed to correctly apply the terms of section 134AD of the - - -

KIRBY J: The remedy you are seeking is remitter to the Court of Appeal to deal with it correctly.

MR KENNAN: Yes, your Honour.

KIRBY J: You are not asking us to do anything.

MR KENNAN: Certainly not, your Honour.

GUMMOW J: In effect, you are saying they constructively failed to exercise their jurisdiction. That is what it comes to.

MR KENNAN: Yes, your Honour – that the words of section 134AD are plain; that they are emphatic in that the words are that:

the Court of Appeal shall decide for itself whether the injury is a serious injury on the evidence and other material before the judge who heard the application and on any other evidence which the Court of Appeal may receive -

In our submission, what is required of the Court of Appeal is to form its own opinion as to whether, on the material, the injury is a serious injury and what happened in this case was that they looked for error in the judgment of the trial judge and also expressed deference to the expertise and familiarity with the trial judge in this sort of case but nowhere, we say, does it appear in the judgments that the Court of Appeal decided for itself whether the injury was a serious injury.

GUMMOW J: Now, Mr Jackson says that is perfectly right to look at 134AD, but he says you have to read it with section 74 of the County Court Act which is a general appellate provision, and then you go to section 74(3) and then it is a question of reading that general provision with the more specific provision of 134AD?

MR KENNAN: Yes. I would agree, with respect, with that approach, your Honour, and we say that section 74 is the empowering appellate provision in civil cases for appeals from the County Court to the Court of Appeal.

KIRBY J: What is the empowering provision from Supreme Court civil cases equivalent to section 75A in New South Wales? Could you get that for us? Is it in similar terms to section 74 of the County Court Act? Perhaps that could just be checked.

MR KENNAN: Yes, we will check that, your Honour. But we say that section 74 – I think we agree with our learned friend’s submission that the terms of section 74 are such that it would ordinarily be construed as an appeal by way of rehearing, but we say that section 134AD of the Accident Compensation Act adds to that in that it is very specific in requiring the Court of Appeal to decide for itself and we say that, in addition to the ordinary principles governing appeals by way of rehearing as set out by this Court, especially in Fox v Percy, we say that section 134AD must be construed according to its own terms, a point that this Court has made in Fox v Percy and in other cases that the appellate provisions must be construed and looked at in determining the statutory duty and function of the Court of Appeal.

KIRBY J: The argument that is put against you is that the additional words in the Accident Compensation Act to form its own view are simply a formula picking up what this Court said in Warren v Coombes and, therefore, that all that is intended is that by adding those words that the Court of Appeal should perform the Warren v Coombes obligation which does include seeing if the decision below is wrong.

MR KENNAN: Certainly, your Honour, the second reading speech did refer to Warren v Coombes and certainly the phrase “shall decide for itself” is very similar to the phrase, if not the phrase, used in Warren v Coombes, but we say, nonetheless, the section is plain and ought to be interpreted on its own terms, not qualified by what was said if Warren v Coombes did say anything different. What we say in this case is, if the judgments are looked at, not even, with respect, the Warren v Coombes approach or the Fox v Percy approach was adopted because, if I could take the Court to the judgment firstly of Justice Eames - - -

KIRBY J: Before you do that, is there any provision in the Victorian statute law equivalent to this instruction in the Accident Compensation Act or is this unique?

MR KENNAN: We believe it is unique, your Honour.

KIRBY J: And it is part of a package designed to restore common law damages - - -

MR KENNAN: That is so, your Honour.

KIRBY J: - - - which had been abolished in 1997, I think.

MR KENNAN: The concept, I should say, because it appears in Humphries v Poljak and Mobilio, of serious injury I think was first introduced into the Victorian statute law in the Transport Accident Act in about 1986 and that was an Act that instituted a no-fault scheme in respect of motorcar accidents but left the capacity to sue at common law in respect of what the legislation in the transport accident then said was for a serious injury.

KIRBY J: All of this history would be known to Victorian judges in the Court of Appeal, but I do not even remember what the New South Wales history was. So, if there is a decision of the Court of Appeal, a recent decision that charts the permutations and combinations through which it went, it would be helpful to me to have that.

MR KENNAN: Yes, your Honour. I do not think there is - - -

KIRBY J: You mentioned a case then of Humphries.

MR KENNAN: Yes, your Honour. In Humphries v Poljak - - -

KIRBY J: Yes, I do not want to take you off your course. If you just give me the citation of Humphries and then I will have a look at that.

MR KENNAN: Not at all, your Honour. It is referred in our submissions and the citation is [1992] VicRp 58; [1992] 2 VR 129. Until then, your Honour, there had been no Court of Appeal definition of what the phrase “serious injury” meant and Humphries v Poljak provided the definition of “serious injury” from the Court of Appeal, namely, that it was an injury that was more than marked or significant or at least very considerable and it was that definition that was picked up in statutory form in the Accident Compensation Act in the amendments that were brought forward as part of this package and is to be found in section 134AB(38)(c).

So, as at 1992, your Honour, there was “serious injury” used as a phrase in the Transport Accident Act interpreted by the Court of Appeal to mean “at least very considerable” in Humphries v Poljak. Then “serious injury” then found its way as a phrase into the Accident Compensation Act and between 1992 and 1997 the phrase “serious injury” in the Accident Compensation Act was interpreted in the same way as it had been interpreted by the Court in Humphries v Poljak for purposes of the Transport Accident Act.

Then what happened was in 1997 the power to recover damages at common law in accident compensation cases was abolished, and there was then a gap, as it were, between 1997 – in chronological terms 1999, because the Act when it was amended in 2000 - that is, the Accident Compensation Act – backdated, as it were, the right to claim at common law until October 1999. So the package of reforms that were introduced as part of the restoration of common law rights in 2000 included section 134AB, which again used the phrase “serious injury”, but on this occasion, in section 134AB(38) adopted in statutory form the meaning of the phrase “serious injury” as had been given by the Court in Humphries v Poljak.

So section 134AB effectively did a number of things. One was to introduce on a defined basis the right to sue at common law in respect of serious injuries for pain and suffering, and there was another separate formula for loss of earning capacity that is not the subject of this appeal but it involves a loss of at least 40 per cent of earning capacity, and then as part of that it introduced section 134AD and section 134AE.

I should indicate to the Court that prior to 1997 when “serious injury” was in the Act, an application to appeal from a “serious injury” decision of the County Court was treated as an interlocutory application and leave was required. Part of this package of reforms was to set out that leave - - -

GUMMOW J: AC?

MR KENNAN: Yes, your Honour, AC, that leave was not required, and then AD went on to say that the court must decide for itself, and AE goes on to say that full reasons must be given by the trial judge as in an ordinary case.
GLEESON CJ: Mr Kennan, the concluding part of section 134AD refers to “any other evidence which the Court of Appeal may receive”. Does the appellant under 134AD have a right to adduce further evidence as the appellant chooses, or are there any, and if so what, restrictions in the principles according to which the Court of Appeal decides to receive other evidence?

MR KENNAN: We would say that the principles that apply under I think Order 64, rule 22 of the Victorian Supreme Court Act, which allows the Court of Appeal to receive further material, would apply and in a sense they are referred to by the reference in section 134AD to “any other evidence” it may receive under the Rules of Court.

GLEESON CJ: I wondered whether, in deciding whether to receive other evidence, the Court of Appeal applies the principles generally applicable to the appellate process rather than to the process of a hearing de novo.

MR KENNAN: The appellate process, in our submission, your Honour, which is exceptional circumstances or special circumstances without being more precisely defined, I think.

KIRBY J: We had better get the charter of the Court of Appeal of Victoria in its statute or in the orders of the court and any jurisprudence that establishes the principle that they will act on to receive new evidence. In this case certain new evidence was received by the Court of Appeal because they did inspect the forearm of your client, but they apparently did not inspect the video film, which was an ingredient in the respondent’s case before them.

MR KENNAN: That is so, your Honour. Justice Eames, in a passage I will refer the Court to, did say that their opportunity for inspection was more limited than that of the trial judge. Your Honour, just in reciting the history, I should also say that Humphries v Poljak, the 1992 case that I referred to, in addition to giving a then common law definition of the meaning of the statutory phrase “serious injury”, also considered the appellate principles appropriate to appeals from section 74 of the County Court Act, under which the appeal in Humphries v Poljak – then a transport accident appeal – were to be determined and effectively said that the court should not shrink from giving effect to its own conclusion.

Now, your Honour, what happened then was there was the case of Mobilio (1998) 3VR 833 in which the Court of Appeal effectively declined to follow what Humphries v Poljak said in relation to the appellate position and treated, for purposes of a serious injury case at least, the determination of the trial judge as a discretionary judgment and said that the principles in House should apply. So the Court of Appeal in Mobilio took a different view of appeals under section 74 in respect of a serious injury determination to the Court in Humphries v Poljak. It will be apparent from the second reading speech that one of the purposes of introducing section 134AD was effectively to statutorily abolish Mobilio and to make it very clear that the legislature was saying that what the court was concerned with here was not simply an exercise of a statutory discretion to be governed by the House principles, but emphatically it had to decide for itself.

Your Honour, it is section 10 of the Supreme Court Act (Vic) that provides the general jurisdiction for the Court of Appeal to hear appeals both from the trial division of the Supreme Court and from the County Court and it is Order 64 that sets out the rules relating to that and Order 64, rule 22 that especially makes provision in respect of any additional material.

KIRBY J: You have landed a few blows by reference to the history and the language of the statute, but at some stage at the end of your argument perhaps you will have to deal, as far as I am concerned, with the two considerations which appear to have affected Justice Maxwell, namely, (a) that the repository of the power, the donee of the statutory power, is the Court of Appeal of the State, the highest court of the State, a general appellate court, and (b) the suggestion in Justice Maxwell’s reasons that there is no value added in the Court of Appeal becoming a trial court and deciding these matters for itself and that that therefore could not be what Parliament meant. That is the aspect that worries me. You have to look especially at the repository of the power.

MR KENNAN: Yes, your Honour, except we would say, with respect, that the wording of the statute is plain and that the Parliament has said in clear words that the Court of Appeal must decide for itself whether the injury is a serious injury. They are very precise words and Justice Maxwell indicated that he had difficulty with that, both in this case and in a later case of Allsmanti where he went - - -

KIRBY J: This is the five-judge case, is it?

MR KENNAN: No, that is Kelso, your Honour. There is a case of - - -

KIRBY J: It is hard for us to keep up with all these exciting developments of Victoria.

MR KENNAN: Yes, well, a cynic might say you are not missing much, your Honour. Your Honour, in Allsmanti his Honour suggested that it would be better if Parliament repealed section 134AD and restricted section 134AB appeals, that is, serious injury appeals, to points of law only. I have a medium neutral citation for this, your Honour. It is [2007] VSCA 17 and it is at paragraph 71 that his Honour, in speaking of section 134AD, said:

Of course, Parliament has made it perfectly clear in s 134AD that this Court must decide for itself whether a worker has a serious injury as defined. My own view as President of the Court, however, is that to have the Court of Appeal sitting as – in effect – a medical tribunal is not a good use of scarce judicial resources. Having a full rehearing on appeal is apt to undermine the conscientious work of County Court judges at first instance, since it is an invitation to the losing party to rerun the facts in the hope that the appeal court will take a different view.

In my view, the interests of parties to these proceedings would be amply protected if appeal to this Court was limited to a question of law.

Now, his Honour is there saying in very candid terms what he was really effectively also saying in Dwyer, with respect, that he does not agree with the plain wording of the legislation, and insofar as the plain wording of the legislation requires them to form their own view on whether the injury is a serious injury, he does not think that is an appropriate provision and suggests - - -

KIRBY J: The Court of Appeal in New South Wales said a similar thing after following an interregnum, appeals from the Compensation Court were allowed on facts and Parliament in New South Wales in due course limited the appeals to points of law, went back to that principle.

MR KENNAN: Yes.

KIRBY J: I am jumping ahead of you and it is better for you to go back, I think, in your course, but there is a certain merit and the textual anchor for the merit of Justice Maxwell’s assertion is the definition of the repository of the power which is the highest court of the State, a court of general appeal dealing with a whole variety of matters and if you take the view that from that you infer that it cannot have been intended that “consider for itself” meant a complete retrial on the papers then you are back to Warren v Coombes and Warren v Coombes did import the conclusion as the threshold that the decision of the primary judge was wrong.

MR KENNAN: Yes, your Honour, but in doing so, also said that if the court had formed its own view it must not shrink from giving effect to that view, and what we say about this judgment or these judgments is that at no point did they get to the point of forming their own view about that to see whether or not it was different.

There is also a passage in Warren v Coombes, your Honour, of the judgment of the Chief Justice and Justice Gibbs and Justice Murphy that refers to a passage from Justice Murphy from some earlier cases where Justice Murphy said that where the court forms its own view and that view is different, it is that view that should be substituted whether or not there is error.

HAYNE J: Just as to the statutory framework for the Court of Appeal, you have referred to section 10 of the Supreme Court Act, and in particular 10(1)(c) giving the court jurisdiction to hear and determine:

all appeals from the County Court constituted by a Judge -

Reference will also, I think need to be made to rule 64.22 of the Rules of Court which regulates the powers of the Court of Appeal. Rule 64.22 is a rule that is made, I would have thought under section 25 of the Supreme Court Act, particularly perhaps section 25(1)(ca) which empowers the making of rules relating to:

applications and appeals to and proceedings in the Court of Appeal -

I think I am right but I would be glad to know whether this is right. To say that there is no statutory, as distinct from rule, statement of the powers of the Court of Appeal on an appeal generally and that in that respect 134AD sets this class of appeals apart in that there is a statutory prescription of the task of the Court of Appeal, whereas otherwise the more particular prescription of the task is a matter of Rule of Court.

MR KENNAN: Yes, your Honour, with respect. That is our understanding, that the power of the court to receive evidence is founded in Order 64, rule 22 and not otherwise in statute.

HAYNE J: Not just confined to questions of receiving further evidence, but rule 64.22(2):

The Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such further or other order as the case may require -

which is not unlike a common form appellate provision often found in Supreme Court statutes around the country, I think.

MR KENNAN: Yes. The only thing we would add is section 74(3) of the County Court Act also refers to drawing inferences, but otherwise, we would agree with the observations your Honour has made about the power of the Court of Appeal and the basis for it.

KIRBY J: I just repeat the question - these provisions and the history of the introduction of serious injury and so on cannot really be gleaned from Humphries. It is too early; it is 1991-1992. If there is any description somewhere of the course of events and the change of the legislation, that would be helpful because it is an anchor of your argument first that we have to focus on the statute, and (b), we really have to understand, it seems to me, the political and argumentative background that led to this rather special provision in the statute because it helps us to understand what Parliament was getting at.

MR KENNAN: Yes. We will have a look at that, your Honour. Unfortunately, I think most of the cases since the introduction in 2000 of 134AB have tended to deal with the narrower issue of - - -

KIRBY J: Naturally, because the Victorian judges know all this history. But if a national court is to look at this, we really have to put ourselves into an understanding of what was the history behind the unusual provision in 134AD.

MR KENNAN: The most comprehensive judgment on 134AB is to be found in Barwon Spinners v Podolak [2005] VSCA 33; (2005) 14 VR 622. That was the case that dealt with about five appeals together and was the case that gave a general overview for the first time of section 134AB and said some things that we disagree with and to some extent my learned friends disagree with about section 134AD that I will refer to. I think that is as close to a single case that I can point your Honour to in reciting the history of it.

KIRBY J: Is there an up-to-date Victorian textbook on the Accident Compensation Act (Vic)?

MR KENNAN: I think there is only an annotated Act, your Honour. I do not think there is a single volume. It is a loose-leaf service.

KIRBY J: I see, if that has a foreword with a history of statute and how this came about, it would be helpful perhaps. The last part of the chronology is the exceptional five Bench decision. What was the name of that case?

MR KENNAN: Kelso, your Honour.

KIRBY J: What did that do?

MR KENNAN: In Kelso, your Honour, they looked at Dwyer and - - -

GUMMOW J: What is the citation?

MR KENNAN: The citation is [2007] VSCA 267. Kelso looked at Dwyer and, insofar as it is relevant for this case, the judgment of Appeal Justice Dodds-Streeton, with whom the other four judges agreed, said that Dwyer had not, in her view, treated the County Court as a specialist tribunal and effectively reapplied what had been said in Dwyer and Barwon Spinners but said that the court was not going so far - - -

GUMMOW J: Where do we see this? Where do we see the critical passage in Kelso?

MR KENNAN: Yes, your Honour. Paragraph 176, your Honour, on page 48 and about halfway down paragraph 176 her Honour said there was:

No relevant advantage in relation to serious injury applications inheres in a County Court judge by reason only of his or her status as such. The statements in Barwon Spinners and Dwyer did not hold that it did. The relevant observations go no further than to note the likelihood that, given the fact that s 134AB(16)(b) applications are brought in the County Court and commonly comprise a part of its regular case load, some individual judges might have considerable familiarity and expertise which, where appropriate, would properly constitute an advantage to be taken into account. They did not authorise an indiscriminate attribution of such an advantage to all County Court judges. Nor, when taken in context, did they attribute specialist tribunal status to the County Court itself.

KIRBY J: That has a different flavour to what Justice Eames said in this case.

MR KENNAN: With respect, we say that is putting a gloss on what Justice Eames said and that the approach of Justice Eames was very much to apply what was said in Barwon Spinners and emphasise it and he said that the experience of the County Court judges was highly significant, and our other complaint about it is this, your Honour, that what was at issue in this case was the ultimate conclusion. The facts were not in issue. So there was no ground, in our view, for deference on the ultimate conclusion.

That was also said in Warren v Coombes in a joint judgment that where the facts were not in issue the trial court was in no better position than the Court of Appeal to draw the inference of negligence, and what we say here is the application of the statutory test of “serious injury” to facts that have already and separately been found and identified is the application of the legal test, and we say there can be no ground for deference by the Court of Appeal to the trial judge in the application of the legal test to facts that are found and are not disputed.

KIRBY J: But is there not merit in what Justice Maxwell said in answer to that, that if that is the correct approach, why would anybody stop at the trial court? Why particularly would defendants stop if they are dissatisfied at the trial court? They are better resourced. I mean, your case is a case by the plaintiff coming up here that we have to consider this matter by reference, a neutral principle, of what happens where a defendant then says, well, we do not like that, we will just take that up to the Court of Appeal. We might get up?

MR KENNAN: Your Honour, as a matter of practicality it may not make a huge amount of difference in volume one way or the other because in order to have a success on appeal, either by way of allegation of specific error or by saying the ultimate conclusion was wrong, the facts of the case must give rise to a reasonable prospect of appeal anyway for either party to be undertaking the exercise of appeal, that is - - -

KIRBY J: That defendants do not have to tarry as long over that as plaintiffs do, and if the principle is, well, the trial court does not matter all that much. You just go up and have another go in the Court of Appeal, then that may not be (a) a good use of judicial resources of the Court of Appeal, the repository of the power, but it also may mean that the trial court becomes a sort of provisional decision.

MR KENNAN: Your Honour, as a matter of what I would say were forensic practicalities, if it has been a weak case on one side or the other, the party who has failed is probably unlikely to appeal in any event, because they have to consider if it was a weak case and there were good grounds for the trial judge reaching his or her ultimate conclusion, the chances of persuading the Court of Appeal to a different conclusion on a weak case that you have lost at first instance are not good.

The mere fact that the interpretation of section 134 we contend for provides the opportunity for a second view of a legal conclusion on the same facts does not, in our submission, lead to a conclusion as a matter of practicality. It will generate a spate or flood of appeals. The second point is that in most of these appeals there are allegations of specific error as well and the number of cases where there is no arguable specific error, it is simply the ultimate conclusion, which is what this case now boils down to, probably are not all that numerous.

But in any event, your Honour, we would say, with respect, those sorts of policy considerations cannot be used to constrain the meaning of the words in section 134AD or to relieve the court of its statutory obligation to form its own conclusion and we would query whether, even on the basis of Warren v Coombes, in a case like this where there was no dispute of the facts whether it is the duty of the Court of Appeal to say, “Well, the facts are undisputed, for our own part we would have inferred serious injury but we are not going to give effect to that conclusion because we cannot find error”.

GUMMOW J: Looking at Kelso for a minute, do you quarrel with what is said on paragraphs 204 and following at page 56 on this question of remitter and the relationship between 74(3) and 134AD?

MR KENNAN: I do not think we do, your Honour. I think we say if there are circumstances in which the court does not feel able to conclude for itself by reason of aspects of the evidence not being properly tested or whatever, it will always be open to the Court of Appeal to remit it and section 134AD does not preclude that.

GLEESON CJ: It is the nature of the question that is part of the problem here, is it not? To ask whether a certain physical condition constitutes a serious injury is obviously to ask a question upon which different minds may reasonably reach different conclusions. The question is, is it not, in the application of this statutory provision, is it the function of the Court of Appeal to say, “This is a matter upon which different minds may reasonably reach different conclusions, we are therefore not satisfied there was error”, or is it the function of the Court of Appeal to say, “This is a matter on which different minds may reasonably reach different conclusions, therefore we must reach our own conclusion”?

MR KENNAN: We say the meaning of section 134 is the latter, your Honour, that it must decide for itself, and we say to approach it as the court did in this case, to look at whether or not the trial judge was wrong - - -

GUMMOW J: It was not the trial judge. This is the point. What you have in Victoria is a whole legislative structure about litigating about a right to litigate.

MR KENNAN: Yes, your Honour.

GUMMOW J: It was an application, was it not, in the County Court, in effect for leave to be able to exercise the rights the common law have given you but which in your State have been taken away?

MR KENNAN: That is so, your Honour.

GUMMOW J: The purpose, on one view, of 134AD is to, as it were, bring an end to this litigation about the right to litigate by saying the Court of Appeal is not to send it back. It has to make up its own mind, and however it falls out that is either the death of the case or, it opens the gate and there is a trial.

MR KENNAN: Yes, your Honour.

GUMMOW J: Now, that has to be weighed as against what Justice Maxwell saw as the defect in the section, but there is another side to the story it seems to me, namely, hapless plaintiffs.

MR KENNAN: Your Honour, although in one sense it is a gateway for plaintiffs, it is the end of the matter, of course, if they lose, and it might be thought that one of the purposes insofar as previously these had been treated as interlocutory matters only, leave was required. This scheme underlined in one sense the importance of these applications by saying, they are not interlocutory. They are to be fleshed out with reasons as on a full judgment and it recognised that for the plaintiff, if they lost at first instance, that was the end of the matter.

KIRBY J: The difficulty is, as I think the Chief Justice pointed out, the language is so opaque, the criteria are so vague, the formulae used are so uncertain and upon those play the minds of different lawyers who have this responsibility. Now, I have not forgotten that in my youth there were some judges who were inventorially generous and some who were very mean, and talking of a specialist tribunal is not really appropriate, and that has now been corrected, but maybe the purpose of this is to say, for good or for bad we are going to set the standards in the Court of Appeal of the State, and they are going to set it and inferences will be drawn from it because they will get appeals from all County Court judges, some of whom will have different attitudes. They will set the standards and then hopefully that will trickle down and that will be the way this law will operate, opaque though it is, it will have some guidance from the decisions of the Court of Appeal.

MR KENNAN: Yes, that would be another advantage if that were to happen, your Honour. Your Honour, we say although the language is opaque is still does come down to the application by the court of that language to the found facts which is - - -

KIRBY J: Plenty of room to manoeuvre in that language though.

MR KENNAN: Yes, your Honour, but it is an ultimate legal conclusion, we would say, and we say that the court in the judgment in Dwyer was wrong to express deference on the ultimate legal conclusion because the facts were not in dispute and there can be no room, in our submission, for the Court of Appeal to effectively be deferring to the expertise of the trial judge on what is a point of law.

KIRBY J: The anchor of your case is 134AB. If that is truly unique to Victoria and if it is part of the package of Parliament, then that is the thing on which the Court of Appeal and we have to focus.

MR KENNAN: Yes, your Honour. We do say this appeal, in our submission, revolves around the proper application of 134AD.

GLEESON CJ: There is an expression in Warren v Coombes that I would just like to hear your submission about, Mr Kennan. It talks about giving weight to the decision of the trial judge. What does that mean in a context such as this?

MR KENNAN: In our submission, it ought to be taken as giving weight to the findings of fact because what they said in - - -

GUMMOW J: Why does Warren v Coombes have anything to say about this sort of situation? I know it has been referred to in various cases. It is all about trials and juries. There is no trial in this case. In your State plaintiffs do not get to trial unless they get through these hoops.

MR KENNAN: There is no trial, your Honour, and the section is different is the other thing we would say.

GUMMOW J: But nevertheless it has been relied on. It seemed to have got itself in the bloodstream of this forest of jurisprudence which is growing up in your State.

MR KENNAN: That was really because, I think, of the discussions in - - -

KIRBY J: This is like the Barnes v Addy of common lawyers. I am just trying to explain it to Justice Gummow.

GLEESON CJ: It might have come in because the Minister in introducing the legislation said he was trying to get back to Warren v Coombes. Is that a possible historical explanation?

MR KENNAN: Yes, that is a very possible historical explanation, your Honour.

GLEESON CJ: You could understand why they thought of it.

MR KENNAN: Also because of the conflict between Mobilio and the early case of Humphries.

GLEESON CJ: This is the difficulty that I have that I raised earlier in the nature of the question. I mean, if you asked me whether somebody else is suffering from a serious injury, I might take a certain attitude that might be very sensitive or very robust, it might be quite different from yours. Which of us is right or wrong? Ultimately it is a question of whose judgment on that matter is to prevail and that is why I am interested in the concept, if there is a concept in this context, of giving some kind of weight. I am not sure how you go about giving weight in this statutory context to an opinion on a matter like that.

MR KENNAN: If I could refer your Honour to the passage in Warren v Coombes that I think your Honour might have in mind. It is at page 552 of Warren v Coombes and it says:

But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment. Further there is, in our opinion, no reason in logic or policy to regard the question whether the facts found do or do not give rise to the inference that a party was negligent as one which should be treated as peculiarly within the province of the trial judge. On the contrary we should have thought that the trial judge can enjoy no significant advantage in deciding such a question. The only arguments that can be advanced in favour of the view that an appellate court should defer to the decision of the trial judge on such a question are that opinions on these matters very frequently differ, and that it is in the public interest that there should be finality in litigation.

I think that might have been the passage your Honour had in mind, but what we say there is insofar as the court did say that there is no reason in logic or policy to regard the facts found giving rise to an inference of whether or not it was negligent as being within the sphere of the trial judge, we say that what the court was really having in mind there were advantages and weight of the trial judge in considering the evidence; but once the evidence is clearly established, the legal inference whether there was negligence or, in these cases, whether or not the test for serious injury was satisfied, is a matter on which the trial judge can enjoy no advantage.

GLEESON CJ: Once you put to one side any idea that there is some expertise within the County Court in Victoria which should cause a deferential attitude on the part of an appellate court, what other reason might there be for an appellate court to say, “Different minds could reasonably have different views on this and we think the view of the primary judge is unreasonable so we will not set it aside”.

MR KENNAN: They might just have a very different view as to what the phrase ‘very considerable” means in the definition of “serious injury”. If they come to that view and it is a different view, then whilst they might not be able to point to any specific error in the reasoning of the trial judge, we say section 134AD obliges them to give effect to that view.

The other mistake which we say, with respect, crept into the Barwon Spinners judgment and the Dwyer judgment in respect of consideration of the advantages of the County Court judge, to use a precise term, was that they said that those judges were familiar with the range of cases that came before the court and were therefore more able to place this case in the spectrum. But in fact when the words of the statute are looked at in 134AB(38)(c) it is the range of possible injuries that must be considered, not the range of injuries that come before the court.

The range of possible injuries in the context of the Accident Compensation Act might mean any compensable injury which might mean a cut finger necessitating a day off work and a claim for medical expenses through to a crippling spinal injury. They are the range of possible injuries and that is the range that the statute talks about – that is the range of possible injuries.

The judgment in Dwyer that I will refer to in a minute and to some extent the judgment in Barwon Spinners talked about placing the case in the range of the spectrum of cases coming before the court, which albeit is a much narrower range than the range of possible injuries because a lot of these cases are settled and conceded, that is, an application is made to the authority and a serious injury certificate is granted. The cases that actually come before the court exclude the very strong plaintiffs’ cases where the authority is granted a certificate and are in the more arguable or marginal category.

We say that to the extent that the judgment in Dwyer seemed to defer to the advantage of the County Court judges insofar as they were aware of the range of injuries coming before the court, that was to misapply the legislation.

HAYNE J: Can I for a moment put aside the many decisions to which reference has been made. May I go back to the Act and see if I can understand the way in which you put the argument. If we go back to 134AB, which is the start, 134AB(2) provides, in effect, you “may recover damages” in effect, only if it is a “serious injury” and there is a date provision. Is that right?

MR KENNAN: That is so, your Honour.

HAYNE J: You begin there.

MR KENNAN: Yes, your Honour.

HAYNE J: Subsection (16) then says that you:

may not bring proceedings for the recovery of damages in respect of the injury –

if assessments have been made in particular ways without leave, see subsection (16)(b). Is that right?

MR KENNAN: That is so, your Honour.

HAYNE J: Under (19)(a):

a court . . . must not give leave unless it is satisfied . . . that the injury is a serious injury –

(19)(c) says no “issue estoppels” except about the “finding that the injury is a serious injury”.

MR KENNAN: That is so, your Honour.

HAYNE J: So that all of the issues that may have been agitated in the “serious injury” application about what the worker can or cannot do, what happened, what did not happen are left alive for trial of action if a serious injury certificate issues?

MR KENNAN: Yes, your Honour.

HAYNE J: Or if leave – not serious injury certificate – if leave is granted to commence the proceeding. Is that right?

MR KENNAN: That is so, your Honour.

HAYNE J: Then (38)(c) relevantly tells us what is a serious injury, and I would understand your argument to stand or fall then on the proposition that 134AD says that in an appeal the Court of Appeal is to decide for itself whether the injury is a serious injury?

MR KENNAN: That is so, your Honour.

HAYNE J: Either that conclusion follows from that statutory path or it does not, regardless of the amount of judicial ink that has been spilled?

MR KENNAN: We say that is so, your Honour, and we say that because of the peculiarity of section 134AD.

KIRBY J: I take the power of all that, but I am still stumbling over the fact that 134AD recognises that the appeals to the Court of Appeal will be heard by the Court of Appeal which must decide for itself that the suggestion is, in brackets there, you add the words something like “shall decide for itself but, of course, as a Court of Appeal”.

MR KENNAN: We would say, with respect, the Parliament could not have made the words plainer. This was a package of reforms. Section 134AD was introduced with the others.

HAYNE J: Package of measures, Mr Kennan.

MR KENNAN: I am sorry, your Honour, it is like talking about tort reforms, your Honour, legislative change. Doing the best they could, what they said was “shall decide for itself”. Without expressing the legislature to then effectively begin to adopt jurisprudential phrases and other caveats in a fairly plain section, it is our submission that the meaning is as clear as it can be.

KIRBY J: I mean, when I sat in the Court of Appeal of New South Wales you had appeals as of right on damages cases that came up and they were sometimes interesting, sometimes tedious, but you just got on with them and did them and thereby you set standards which you hope the District Court would, as it were, read and take into account – it is a bit like sentencing in the Court of Criminal Appeal in New South Wales. But there is a point in what Justice Maxwell says and it is really often expressed in what I think Justice Deane or Justice Mason said in Veen, I think, that unequal treatment of like cases is a badge of injustice and the question is, is this 134AD a means of removing that injustice or is it a means of swamping the Court of Appeal of Victoria?

MR KENNAN: Your Honour, if the swamping is a concern, that concern ought not lead to additional words effectively being added to section 134AD.

KIRBY J: You say that is for Parliament to respond to Justice Maxwell’s cri de coeur, not for the judges to manipulate and distort the language of 134AD.

MR KENNAN: Exactly, your Honour, and we say as far as the swamping is concerned, in some senses it is no different from an appeal from an actual common law trial where there is no issue on of the facts, heard by judge alone, but the judge finds that there was no departure from reasonable care and therefore no negligence. On the basis of what was said in Warren v Coombes, the Court of Appeal is asked, on undisputed facts, to draw its own inference as to whether or not there was negligence and if they reach a different conclusion on that from the trial judge, they must substitute.

We say that in respect of this case if the judgments are looked at the judges did not at any point form their own conclusion. That, we say, is apparent – the judgment commences at page 149 of the appeal book.

GUMMOW J: Before we go to that, can we go back to Kelso for a minute?

MR KENNAN: Yes, your Honour.

GUMMOW J: I will seek your assistance on a passage that troubles me. Firstly, I notice – when was the grant of special leave in this matter to this Court?

HAYNE J: On 3 August 2007.

GUMMOW J: The five-judge Bench is assembled in the interim.

MR KENNAN: It was. What happened in that case, your Honour, was that the appeal was lodged and because Barwon Spinners and Dwyer were sought to be brought into issue in the written submissions at least a five-member Bench was requested by the appellant.

GUMMOW J: Footnote 77 is a bit unusual, is it not, in Kelso? Is that a reference to the special leave transcript in the present appeal?

MR KENNAN: Yes it is, your Honour, I think. The appellant advanced what was said in the special leave application as part of its argument.

GUMMOW J: Well, I will not say any more at the moment. Paragraph 149 on page 40 in Warren v Coombes, the second reading speech and then it said:

The nature and characteristics of such an appeal are well established.

What does the “such” identify there? What is the trial below and who is the trial judge referred to in the second sentence of 150?

MR KENNAN: We had read that as being a reference to the sort of appeal in Warren v Coombes, your Honour.

GLEESON CJ: I must say I had read the expression “such an appeal” in paragraph 150 as a reference to the kind of appeal being referred to in the last sentence in paragraph 148,; that is to say an appeal against a discretionary decision.

MR KENNAN: Yes.

GLEESON CJ: I am not expressing any view one way or the other as to whether this is an appeal against a discretionary decision, but that is what they seem to have had in mind, I thought – an appeal against a discretionary decision so that appellate interference is justified only by specific error or a result so unreasonable or plainly unjust that some error must be inferred.

MR KENNAN: Yes, your Honour; the House principles.

GLEESON CJ: Yes, of which a sentencing decision – House was a sentencing case, I think.

MR KENNAN: Yes.

GUMMOW J: I took you off your course.

MR KENNAN: I was going to take the Court to the judgment of Justice Eames in the Court of Appeal. This is in the appeal book and the passages I want to refer to commence at page 154 of the appeal book - paragraph 8 of Justice Eames where Justice Eames refers to 134AD in terms of getting the Court of Appeal to decide for itself. But then on page 155 and over onto page 156, still in paragraph 8 of the judgment, his Honour distils a number of propositions that he relies on from the case of Barwon Spinners or, as it is referred to there, Podolak.

Amongst them he refers at paragraph (3) to the advantages of the trial judge having seen or heard the witnesses. Then at paragraph (5) - - -

KIRBY J: Can I add there something I have been saying for some time - no one pays attention - but the advantages of the trial judge include not just seeing the witnesses but that the trial judge hears all the evidence come out and has a bit more time than the average appellate court has to sit and absorb all the information and that is what, no doubt, Justice Maxwell had in mind when saying this is not really a good use of judicial time.

MR KENNAN: That may be, your Honour, but in this case the rest of the facts were not in dispute and they were able to observe the scarring and limitation of movement of the plaintiff or the appellant. He was in court, he approached the Bench and there was a careful inspection by the Bench of the scarring and disfigurement and limitation of movement. That was not a lengthy matter and it was not a matter on which, if the Court of Appeal had thought that they had not seen enough, they could not have said they had not seen enough. They gave every indication during the hearing that they had perfectly adequate opportunity to observe the in-court demonstration.

KIRBY J: That is true, Mr Kennan, but Courts of Appeal get used to and their vocation is sitting here day by day saints reading appeal books and in the nature of things generally you are very reliant on counsel to take you to relevant parts and look at other things, but I have to tell you, after 20 years in appeal courts you do not have the time to read everything. Sometimes, you will not believe this, we get 10 or 15 appeal books.

MR KENNAN: Your Honour, this case was a very confined case.

KIRBY J: I know this one was, but there will be cases where there are lots of appeal books.

MR KENNAN: But this was not one of them, your Honour, and having had that opportunity there was still deference and that appears on page 156 in paragraph (5) at lines 12 and 13. His Honour said:

Application of the criteria does not depend on any legal principle, but rather on the opinion of a judge familiar with a range of conditions within which the particular condition occurs.

With respect, in our submission, that is wrong. What the definition section says in section 134AB(38)(c) is it is the range of possible injuries not the range of conditions within which the particular condition occurs, which is suggestive of judges being able to derive some advantage by seeing the full range that appears before them. It is not the range that appears before them, it is the range of possible injuries. His Honour went on in paragraph (6), line 21 to refer to some County Court judges dealing with cases and becoming expert in the area and his Honour said:

They see the worst and the least of like cases and are in the best position to assess a given case within the spectrum of such cases.

We say that underlines the error. It is not the range of cases that a particular judge might see coming before him or her. It is to make an assessment of whether or not it can be said that the injury is very considerable when considered in the range of possible injuries.

KIRBY J: You are repeating yourself now.

MR KENNAN: I am, your Honour, but I am saying that this was used here to be a point of deference to the trial judge and it is another indication that the judge was not forming his own opinion, and he refers at the end of that, your Honour, at line 32 to it being an appeal, in effect, from a specialist tribunal and - - -

GUMMOW J: But this phrase “trial judge”. It is all through this. There was not a trial judge. I am repeating myself now.

MR KENNAN: Your Honour is quite correct - - -

GUMMOW J: I realise the Minister started the hare running. It is running a long way.

MR KENNAN: It is also the colloquial, really, in Victoria in these cases, your Honour, that effectively these serious injury cases have assumed, effectively, the real trial because most of them – a lot of them are settled before serious injury. Then if a serious injury certificate is not granted, that is the end of the matter. If a serious injury certificate is granted, 95 per cent then settle. There is a complicated formula of statutory offers and counter offers and what has happened is that serious injury cases are colloquially often referred to as “trials” when in fact they are not, but they have effectively replaced what used to be common law trials to an overwhelming extent. That is where the real fight takes place.

If you have a real fight, the fight is over the serious injury certificate. Once it is granted the overwhelming likelihood is the case settles. That is the end of the matter, and if there is a real issue of negligence that then may be tested, but common law trials in the old-fashioned sense tend to be a bit of a thing of the past. I think that is the other, but I do not disagree with what your Honour has said.

KIRBY J: By the way, Justice Heydon agreed with the view that I expressed in Williams v Minister, Aboriginal Land Rights Aust Torts Reports at his reasons at 138 about the absorption of all the detail of a case, and he said that that could not be doubted. It has always seemed to me much more important than truth telling from appearances of which I have always been sceptical. Science denies it, whereas having the time to absorb it and think about all the detail is a very important advantage that the primary judge normally has over appellate courts.

MR KENNAN: Yes, your Honour, but without contradicting that as a general proposition in terms of factual assessments - - -

KIRBY J: You say in this case it was no big deal and the duty under the statute is to make their own decision?

MR KENNAN: The facts were found and they were not in issue. The simple issue was the determination of the legal test.

KIRBY J: It is not insignificant that they did not in fact view the linchpin of the respondent’s case which was the movie of your client at work?

MR KENNAN: That is so, your Honour, and they were advised that that was in court and that was available for them and they said that they had not been asked to view it and they did not think it was necessary for them to view it. We say that is another example of them really not going through the exercise of deciding for themselves. Similarly, with what Justice Eames had said was that the opportunity to view the injury to the limb was more limited but there was no indication from the court, at the time they made that viewing that they wanted to see more. They had ample opportunity. It was not a lengthy or difficult matter to demonstrate. Scarring on an arm or limitation of movement of an arm is not exactly a lengthy detailed matter.

The fact that they expressed reservations about that, we say, just underlines the point that there was no attempt to reach their own conclusion. We say that is apparent from the judgment of Justice Eames with whom Justice Neave agreed and it is also apparent from the judgment of Justice Maxwell that, whilst he did refer to section 134AD in its own terms, he did point out – and this appears at page 164 of the appeal book at paragraph 34 of his judgment – Justice Maxwell said:

As Eames, J.A. pointed out in argument and as is clear from the propositions from Barwon Spinners which are set out in his judgment, we must be satisfied that the trial judge was wrong in coming to the conclusion she did . . . But nothing I observed suggested that her Honour had erred in the conclusion she arrived at.

He again was following what Barwon Spinners had said and seemed to be adopting what Justice Eames had gleaned from Barwon Spinners and was again looking at it from the point of view of finding error in the trial judge. We say, frankly, there is a qualitative difference between asking whether or not the trial judge was wrong and asking whether or not deciding for oneself one would have a different opinion, that is, it lifts the bar higher for an appellant if the test is to ask, although you might have a different opinion, are you able to say that the trial judge was wrong rather than to simply ask, if you have a different opinion, would you please substitute.

GUMMOW J: What is the Court of Appeal to do where some of the material, to use that expression at the moment, before the primary judge hearing this application was an in-court demonstration by the plaintiff and that is not repeated in the Court of Appeal and not photographed? What do they do? In other words, the record that they have may not be commensurate with the record the primary judge had.

MR KENNAN: In some senses this case was like that and the step that the appellant took was to repeat the in-court demonstration in the Court of Appeal. If that is not practicable for one reason or another and there are findings of fact made by the trial judge that are critical to the ultimate conclusion, it may be that the Court of Appeal accepts the findings of fact made by the trial judge as a result of that and reaches the same conclusion, that is, that where there are findings of fact made by the trial judge that the Court of Appeal is not in a position to differ from, it then adopts those findings of fact and asks about the ultimate conclusion.

If there has been some unsatisfactory nature of the way in which the evidence has been presented, then it may be a case for sending it back for a rehearing.

GLEESON CJ: Mr Kennan, in the first paragraph of his reasons which begins at the bottom of 163 and goes over onto the top of 164, Justice Maxwell makes the point that a good deal of what Justice Eames said was by way of response to your argument, and Justice Maxwell seems anxious to avoid any possible misunderstanding that might arise out of that. What do you say about that?

MR KENNAN: Certainly that is correct, your Honour, that Justice Eames was responding to my argument and I think that my learned friends in their written submissions have extracted an extract from the transcript before the Court of Appeal where there was an interchange in terms of oral submissions between my submissions and Justice Eames. At page 9 of the respondent’s submissions in this case, your Honour, where Justice Eames referred to my argument being:

‘If it was open, nonetheless we invite you to substitute your own view’

Mr Kennan: I am saying that, your Honour. I don’t resile from that. And I would also say s.134AD says that.

true it was, your Honour, that the appeal before the Court of Appeal was brought on a number of grounds including grounds of error which was the law as applied by Barwon Spinners in the court at the time, but it was also put that section 134AD required them to substitute their own view and they were invited to do that. In addition, your Honour, in answer to your Honour’s question, Justice Eames did more in the paragraphs I referred to earlier than simply respond to my arguments. He stated some general propositions that he derived from Barwon Spinners that he said were applicable in this sort of case.

I think that really completes the matters I wanted to put, your Honour. We do say just finally that it does come down to the application of 134AD, that the court is required to decide whether the injury is serious for itself and that the court in this case did not do so and that it
was in error in failing to do so. It was in error in looking for error on the part of the primary judge and it was in error in effectively deferring to the primary judge on the application of the legal test.

KIRBY J: Do I understand that you put the matter to us solely on what you have said you will not resile from, that it is a personal obligation imposed by Parliament that the Court of Appeal must perform and that you do not, in your client’s case, seek to say, but if we had to show error, that the saga of what your client went through is manifestly an error within the, as it were, residual category of House v The King but it is manifestly a serious injury? You do not run that argument? This is a test case to see whether the Court of Appeal has the personal individual obligation to 134AD?

MR KENNAN: Yes, that is so, your Honour. The argument here is that the Court of Appeal was in error in that it did not decide for itself or try to decide for itself - - -

KIRBY J: He asked that question because, as I read the saga of your client and his serious injuries, I must admit the thought did cross my mind, well, what do you have to show to be a serious injury in Victoria?

MR KENNAN: It crossed my mind when I was asked to advise in the appeal and it crossed my mind during the appeal. It crossed my mind even more when I read the judgment, your Honour.

KIRBY J: Anyway, you pitch your case on section 134AD?

MR KENNAN: Yes. I am not asking this Court to give its definition of “serious injury” and, indeed, it was not suggested during the special leave application that I was inviting the Court to enter - - -

GLEESON CJ: There was a limited grant of special leave, I think.

MR KENNAN: That is right.

GLEESON CJ: Some of the grounds on which you sought special leave were not successful.

MR KENNAN: That is right, and I was not inviting the Court to enter into the arena of its definition of “serious injury”.

GLEESON CJ: Thank you, Mr Kennan. Yes, Mr Jackson.

MR JACKSON: Your Honours, may I deal first with the context in which these issues arise and then seek to go on to deal with the aims to be effected by section 134AD and then to whether they were satisfied in the present case. As to the first of those matters, your Honours will see that if one goes to section 134AB(16) that what is required, there is a prohibition against bringing proceedings for the recovery of damages unless – paragraph (b):

a court . . . gives leave to bring the proceedings.

However one may describe the nature of the proceeding in which the Court hears that, whether it be a trial or simply the hearing of an application, one of the conditions for the grant of leave is that provided for by subsection (19)(a) and that is that the Court:

must not give leave unless it is satisfied on the balance of probabilities that the injury is a serious injury –

and, your Honours, that finding might have some consequences as is apparent from subsection (19)(c).

GUMMOW J: What is the significance of this phrase in those two provisions “other than the Magistrates’ Court”?

MR JACKSON: Your Honours, the Magistrates Court does not, as I understand it, have jurisdiction to do it and that may be simply one way of saying it, but it is simply emphasising the fact, I think, that it cannot do it.

HAYNE J: But you could start the proceeding in the Supreme Court, could you not, although conventionally they started in the County Court?

MR JACKSON: Yes.

HAYNE J: The serious injury proceeding.

MR JACKSON: Yes, your Honour, as I understand it the position.

GUMMOW J: So it really reflects a failure to define the phrase “a court” – with a small “c”.

MR JACKSON: Yes. One does see that on the hearing of the application there is a factual issue which has to be determined, the factual issue being whether the injury is a serious injury and that is a matter in relation to which the burden of proof is borne by the claimant.

Your Honours will see that that is so from the provisions to which we have referred in our written submissions at the top of page 4 and they are section 134AB(21) and (21A). So that is the burden of proof of that issue and, of course, on appeal, if the Court of Appeal is deciding for itself the question whether there is a serious injury, then the ultimate burden would lie on the claimant whether it be appellant or respondent in the proceedings.

KIRBY J: That is not in contest though, I think, is it?

MR JACKSON: No, your Honour, but it is a point I will elaborate upon a little later, if I may, because we do not have a great disagreement with the argument of our learned friends. I would wish to clarify that and perhaps we would go a little further in some respects in relation to the effect of section 134AD in relation to the Court of Appeal. In relation to the function of the Court of Appeal one does have to bear in mind that section 134AD gives rise to two issues, one of which arises directly in the face, the other which arises, in a sense, indirectly but is germane to determining the operation of section 134AD.

The former of those is the question, what is the Court of Appeal doing when it comes to the issue referred to in section 134AD and on what material is it deciding. The other is whether section 134AD performs also the function of taking away from the Court of Appeal the ability in some cases to remit a matter back to the County Court, the object of the provision being to bring to an end litigation about the issue. May I come to those things in just a moment, your Honours.

Your Honours, could I say this, the origins of section 134AD seem to be clear enough in the sense that they were expressed to be intended to bring to an end the notion in Mobilio (1983) 3 VR 833 that the criterion to be applied on factual appeals was that applicable to appeals from discretionary or like judgments. Your Honours, if I could pause in that regard. Your Honour the Chief Justice referred to paragraph 148 in Kelso [2007] VSCA 267, the five-judge decision, and paragraphs 148 to 150.

Might I just say, your Honours, and perhaps I misunderstood what your Honour was saying, but your Honour Justice Gummow had referred to paragraph 150 and said who is the trial judge and what is the trial that is being referred to. In the context it seems to be a reference to the judge appealed from, if I can put it shortly, but your Honour the Chief Justice then referred to paragraph 148. The principle there referred to, which is the House v The King type appeal, does not appear to be picked up in paragraph 150 because, really, the intervening paragraph in Barwon Spinners in which it was said that the effect of 134AD was to remove the possibility of the House v The King approach on this issue but, rather, to make it something akin to Warren v Coombes and the other cases on that issue, but your Honours as the - - -

GLEESON CJ: So that to put it in a sentencing context, it is common ground now, as a result of 134AD, and was intended to be the result produced by 134AD, that the appeal court cannot say this was within the range?

MR JACKSON: That is so, your Honour, yes. Or what was or was not within the range, as the case may be.

GLEESON CJ: Similarly, in the present case, it is common ground, is it, that the Appeal Court cannot say, this is a matter on which different views are reasonably open and the view of Judge Millane was reasonably open, therefore the appeal is dismissed.

MR JACKSON: Said as simply as that, your Honour, the answer is – I am sorry, I agree with what your Honour is putting to me. However, one does need to read what is being said because often what is being said is that we ourselves are of a similar view. We do not see that what the judge said was wrong. We agree, your Honour, it can be put in a number of ways. I will come to it more specifically when I come to the actual terms of the reasons for judgment, if I may, because I do intend to deal with that aspect of it.

KIRBY J: Is there not a tension now emerging in your submission that if you cannot say it is in the range and you cannot say, well, if views may differ, how can you say it is wrong unless you are doing the residual House v The King class when I look at it?

MR JACKSON: Your Honour, what one is saying is that in House v The King and like cases such as appeals against general damages and sentences, then the question is whether the decision that was arrived at was or was not outside the range of possible decisions on those facts. In a case like this the issue is different. The issue is whether on those facts the Appeal Court would arrive at a different conclusion. Of course, in arriving at a different conclusion, the Appeal Court does have the fact – one might call it an advantage, sometimes not, but one does have the fact that there is a decision dealing with those particular facts.

Now, if the Appeal Court has a different view of the facts – it has to form its own view – but if it has a different view, then the effect of the hierarchy of courts is that the decision below is one which is regarded as being incorrect, wrong, simply because the court above disagrees with it. It is a manifestation perhaps of the infallibility or limited infallibility of which Justice Robert Jackson spoke years ago.

The situation, your Honours, we would then say is that as the provisions of the second reading speech to which our learned friend’s written submissions refer – if I could come to those for just a moment, your Honours - at page 9, paragraph 15, your Honours will see that the intention of the provision - so far as it was put to Parliament was – that it was bring about a situation where – to use the words of Warren v Coombes:

‘the duty of the appellate court is to decide the case – the facts as well as the law – for itself . . . recognise the advantages enjoyed by the judge who conducted the trial”.

KIRBY J: Can I ask, do we have the actual second reading speech? I am not suggesting that there is more than appears in paragraph 15 of the appellant’s - - -

MR JACKSON: No, it is not in the material before your Honour. We can give it to your Honour if your Honour wishes it.

KIRBY J: I would like to have it, if I may?

MR JACKSON: Yes, we do not think it says more than that. Your Honours, one sees also that section 134AD – and your Honours have been taken to this already – does use language which is derived from and very close to that used in the reasons for judgment of three judges in three members of the court in Warren v Coombes.

We would recognise at the same time that section 134AD is a specific legislative provision. It deals with a particular issue which arises in a particular class of appeals and no doubt it is to be given the meaning which its words bear. We would accept that it requires – and I use these words in a way in which I hope I will be able to elaborate upon in a moment – inappropriate cases that the Court of Appeal decide for itself whether the injury is or is not a serious injury as defined by paragraphs 37 and 38 of section 134AB. But underlying that are really two questions or two issues which are in some respects related, and they bear upon some of the observations made in the reasons for judgment in the Court of Appeal in the particular case.

The first of those relates to what is the function of findings of fact made by the primary judge. The second issue is, are there cases where the Court of Appeal cannot decide the case for itself. May I deal with them in that order, recognising that there is perhaps some overlap between them. If I could turn then to the question of the findings of fact, the issue referred to in section 134AD is one of a number of issues which may arise on the hearing of an appeal. It arises, as the opening words of section 134AD make it clear, on the hearing of an appeal.

The appeal of course is provided for by a statute – by section 74 of the County Court Act. Section 134AD becomes applicable in circumstances where there has been a hearing at which there has been evidence on this issue. Necessarily there has been because of the requirement of section 134AB(19)(a).

Your Honours, one sees that the words of section 134AD speak of the evidence and other material before the judge. We would submit that, when speaking of the evidence before the judge, they should be interpreted as referring, prima facie – a term I use for a reason which I will come to in just a moment – to the findings on the evidence as made by the judge appealed from.

I said “prima facie” because we would recognise that the findings of fact made by a judge are not themselves immune from attack on appeal even if they are primary findings of fact based on credibility. But in the absence of a successful attack on findings made by the primary judge they would be, in our submission, the facts on which the Court of Appeal was to perform the function referred to in section 134AD. It would seem unlikely that when section 134AD is picking up – I am sorry. It is prescribing that the Court of Appeal is itself to form the view that is referred to that it is saying that the situation is one where all the evidence that was before the primary judge is to be taken into account without regard to whether some of that evidence was or was not believed by the other primary judge. The section is, after all, talking about what in a sense is an ultimate or almost ultimate issue on an appeal.

Your Honours, in that regard also, one comes then to the second aspect of this, are there cases where the Court of Appeal should not decide the case for itself and, your Honours, there would seem to be some circumstances in which the legislature is unlikely to have intended that the Court of Appeal should itself decide the question rather than remit it to the Court of Appeal trial. Your Honours, one circumstance would be where evidence has been rejected at trial, but where it might have been the subject of cross-examination if it had been admitted. Another circumstance is where cross-examination had not been permitted when it should have been permitted.

A different situation, your Honours, may arise however in circumstances where evidence has been wrongly admitted. In those circumstances there would seem no reason why, putting the incorrectly admitted evidence out of consideration, the Court of Appeal could not itself proceed to arrive at its own view of the facts. Your Honours, a similar situation would appear to apply where there has been, say, an error of law by the primary judge. In the ordinary course of events, the requirement of section 134AD would seem to be that the Court of Appeal should go on to decide the case on the facts, so far as the issue referred to in 134AD is concerned, applying the correct legal approach.

GUMMOW J: What about AE, giving of reasons, if that is the complaint?

MR JACKSON: That seems, your Honour, prima facie to refer to the court appealed from. The reason why I say that - - -

GUMMOW J: Yes, but suppose the agitation in the Court of Appeal is that there has been a failure by the County Court to comply with AE and that is made out, what does the Court of Appeal do?

MR JACKSON: It may be a matter of, in effect, your Honour, if I could use the expression, imperfect obligation, in the sense that it might be a reason perhaps for, first of all, commenting on the fact that has not been done but, secondly, if sufficient reasons have not been given but the facts are there, then the Court of Appeal may perhaps, in one sense, get into – I am sorry, I will start again, I have begun badly. The Court of Appeal in the end would have to decide the issue itself pursuant to 134AD unless for some reason it could not.

GUMMOW J: That is not what happened in Kelso I see. In Kelso they sent it back, I think.

MR JACKSON: I know, your Honour, yes. Your Honour, the interests for which I appear were agitating in Kelso the matters referred to in paragraph 204 of Kelso and following and that is what I am about to say, your Honours. Our submission is that 134AD does not just say in Warren v Coombes type situations the court has to itself decide whether the injury is a serious injury. What it says, too, is that in cases where it can decide for itself it shall decide and not exercise the power it might otherwise have to remit the matter.

Now, your Honours, that means, of course, that there are cases where undoubtedly the Court of Appeal might otherwise have remitted the matter but, your Honour, these are issues which should be brought to an end. That is what section 134AD seems to be saying. So, your Honours, we - - -

KIRBY J: Can I just ask is the remitter done under some general power of the County Court or is it done in disposing of the appeal to the Court of Appeal?

MR JACKSON: Section 74(3) of the County Court Act which your Honour says – I think your Honours have it. It is referred to in our written submissions if your Honours do not have it, in about paragraph 17. I can give your Honours copies - - -

GUMMOW J: It says “may direct the civil proceedings to be reheard”.

MR JACKSON: Yes, with a question about with the same judge or not but, yes, that is where the power is, your Honour, section 74(3). We can give your Honours copies of that in due course, if we may.

GUMMOW J: You were about to add something to your submission?

MR JACKSON: I was, your Honour. What I was going to say was that section 134AD does, in our submission, require a Court of Appeal to itself decide cases which otherwise – decide on the serious injury issue – it might have remitted to the County Court. Now, your Honours, it does that in order to bring proceedings to an end which is to the benefit of both sides.

A fact of the matter is, as I referred to earlier, that whether it be ultimately on the hearing of the appeal or at first instance, in the end if there is a question which way the answer should go, one does need to bear in mind that the burden of proof lies ultimately on the claimant, recognising it is a civil burden, and no more than that.

GUMMOW J: Does it come to this perhaps, Mr Jackson? If one looks at 74(3) which is a general provision, it is telling one what the Court of Appeal may do and it “may direct” a rehearing. Is the answer that in a 134AD case the content of that power in 74(3) gained some specific content by 134AD, namely, the policy in 134AD to bring things to an end if possible?

MR JACKSON: Yes. Your Honour, we have tried to put that in paragraph 31 of our written submissions at page 8 of those submissions.

HAYNE J: All of this against a background where the ultimate issue before the court considering the grant of leave and before the Court of Appeal on an appeal from that decision is as confined as it is by 134AB. Yes, there may be disputed questions of fact agitated at a hearing in which leave is sought. Presumably, it is common for there to be disputed questions of fact about the actual physical capacity of the person who seeks the certificate, but on an appeal what are the kinds of issues which might have led to the record below being so imperfect that the matter must go back for further or fresh hearing?

MR JACKSON: Well, your Honour, I instanced two before and that was in relation to the failure to admit evidence that should have been admitted and might have been the subject of cross-examination, but where cross-examination might have been expected. I leave aside for the moment a case where uncontested evidence was wrongly not admitted because that can be added to the balance, but a case where cross-examination might have been expected if the evidence had been admitted. That is case one, of varying, in a sense, is where evidence was given but cross-examination not permitted when it should have been.

It becomes difficult, your Honour, once one gets beyond that because I suppose a possible view is to say there are not enough findings on contested evidence for the Court of Appeal to arrive at a view, but one of the intentions, in our submission, that can be derived from section 134AD is that that is an area where the Court of Appeal, aided to the extent to which it can be by findings that have already been made that may perhaps involve issues of credibility or probability, in the end has to make up its own mind.

That is, your Honour, where - there are arguments both ways, no doubt, but one of the features about it is that if in the end the issue is one where which evidence should or should not be accepted then it may advantage a party in the position of the present respondent because of the burden of proof. On the other hand, it may disadvantage a party in that position because it cannot make out some fact which is satisfactory. Your Honour, it just may be that the finding in the Court of Appeal is not as satisfactory as it could have been, or the facts in the Court of Appeal are not as satisfactory as they could have been and that may advantage one side or the other but it does not mean the Court of Appeal should not proceed to form its own view on the issue.

GUMMOW J: In forming its own view under 134AD, I suppose the Court of Appeal is a court for 134AB(19)(a) which you took us to, namely, balance of probabilities have to be satisfied by the plaintiff.

MR JACKSON: Quite, your Honour, yes.

HAYNE J: But it is the Court of Appeal’s order that leave is given, not the Court of Appeal substituting the order made in the court below. The proper order would be, “appeal allowed, set aside the order below, the Court of Appeal grants leave” rather than, “set aside the order below and in its place order that”.

MR JACKSON: Yes. Your Honour, I think that is so, yes. Could I just move then to the particular case and in the course of doing so I mention something about the film and the demonstration, but may I come to that separately. Your Honours, the question which then arises is whether the Court of Appeal applied the correct test in the particular case. If I could take your Honours to the Court of Appeal’s reasons, they commence, relevantly, your Honours, at page 150. Could I just say two things in the first place. This is not a case where the court remitted the matter to the County Court. The court decided the case for itself. Whether it did so in the correct manner is a question to which I will come. Your Honours, we would refer – I am referring, generally, to our written submissions in paragraphs 32 to 39, commencing at page 8.

KIRBY J: There is no other general power of remitter that is relevant in this case?

MR JACKSON: I do not think so, your Honour, no. Your Honours, if one goes to Justice Eames’ reasons you will see at page 152, paragraph 7, he refers to the appellant’s primary complaint which appears to be a statement of a contention which was expressed in a kind of House v The King form.

Your Honours, the passages of the transcript to which we referred in paragraph 30, the passage really demonstrates, in a sense, that is correct. I do not think there is any debate about that. At the same time we accept that our learned friend’s argument in the Court of Appeal did raise the issue that is now sought to be agitated.

He then sets out a summary of the judge’s view and at the end of paragraph 7 on page 154 refers to the fact that “No specific error is identified” and the submission was that the finding should necessarily have led to the conclusion, et cetera, and, your Honours, that is referring again to the primary submission. One sees at paragraph 8 in the three lines on page 154 and at the top part of page 155 before the subparagraphs that he acknowledges that Mobilio did not correctly state the law and that Barwon Spinners is a case which demonstrated that Mobilio had not stated – sorry, I will start again, your Honours – that Barwon Spinners recognises that section 134AD displaces the view expressed in Mobilio.

He then goes on to set out a number of propositions which he said were applicable to the discharge of the court’s obligation under section 134AD. Your Honours, if one goes to paragraph (1) of those, that is, in our submission, correct. You will see he says it “was the wrong one and should be reversed, or at least set aside.” Your Honour, he is speaking there in a context of, few lines above, to “decide for itself” and that simply means, we would submit, that what he is saying is that the court on appeal has to decide for itself and decide whether it arrives at the same conclusion as the judge below. It has to express its own conclusion.

Your Honours, so far as paragraph (2) is concerned, it is speaking of findings of fact. Your Honours, if a party on appeal is attacking a finding of fact, then, as he says, that party has to show why the finding of fact is wrong and it is harder to do so if the finding is one where the person attacking it bears a burden of proof and has failed on credit. Your Honours, that is all that he is saying in paragraph (2) and he is speaking about findings of fact rather, we would submit, than ultimate findings.

Your Honours, what he is referring to, and your Honours will appreciate he is summarising a number of propositions, is the passage from Barwon Spinners [2005] VSCA 33; (2005) 14 VR 622 at page 643, paragraph 45 where Justice Phillips said:

It must be accepted by reason of s 134AD that the appellate court is to decide the question of serious injury, without inhibition if at the end of the day it differs from the opinion of the judge at first instance . . . although it is a full appeal, there are always some constraints by reason of its being an appeal proper –

Your Honours will see about halfway through that paragraph he is speaking of an attack on a finding of fact and simply says:

the appellant, as the attacker, to carry the burden of persuasion, and that burden is the more difficult to discharge –

and he goes on to use words to the same effect as those in paragraph (2), what was said by Justice Eames.

Your Honours, that is nothing very unusual or heterodox in paragraph (2). When one goes to the - - -

KIRBY J: It is not heterodox in the context of appeals generally but what is suggested to us is 22 it is erroneous in the context of the statute.

MR JACKSON: That is the proposition I am taking issue with. What paragraph (2) is referring to is a finding of fact. Section 134AD speaks of the decision on the issue of serious injury. That is a decision which has to be made on facts. The facts that will be those on which it is to be decided are those which either are not contested or have been found by the primary judge or have been found by the primary judge and that finding is attacked. What is being spoken about in that paragraph is that last situation, namely, that a finding of fact is made, it will stand, it is an appeal unless it is set aside and the issue under section 134AD will be decided on the basis of either the fact found by the primary judge or the fact found by the Court of Appeal in setting aside the primary judge’s decision on that question. That is all that is being spoken about there.

So far as paragraph (3) is concerned, it merely, in our submission, reflects the fact that the proceeding is an appeal. The advantages of the primary judge which are referred to there are advantages which should result in findings of fact. Those findings of fact are to be applied unless they are set aside.

KIRBY J: That seems a slightly unbalanced paragraph. With all respect, it is pre-Fox v Percy thinking. You will remember that this Court has gone through the trilogy of, first of all, Warren v Coombes, the correction, then we went through the trilogy of Abalos and so on.

MR JACKSON: A sound decision, your Honour, it seemed at the time.

KIRBY J: I think you were behind some of those cases.

MR JACKSON: Yes, I have done both sides of them, your Honour.

KIRBY J: And then there was the correction in Fox v Percy and Della Maddalena, which says, well, Abalos still speaks, but do not forget the principle of Warren v Coombes and that fits in, in a sense, with what the court has done in the criminal appeal area in Weiss, that you cannot get away from the statutory duty of the appellate courts, which includes to correct factual findings if they can, because more injustices are hidden in factual findings than in legal findings.

MR JACKSON: May I, with respect, say two things in relation to that. The first is that you will see that he is dealing with, in paragraph (2), the attack on findings of fact and in paragraph (3) your Honour will see used twice the word “appropriate” in relation to weight. I am not saying these are unchallengeable.

KIRBY J: But where is the other side of the formula? But if there is no such disadvantage the Court of Appeal must give effect to its own conclusion, and in this case especially so because Parliament has uniquely instructed us to do that.

MR JACKSON: Well, your Honour, could I - - -

KIRBY J: Where is the other side of the formula?

MR JACKSON: Well, the other side of the formula, your Honour, appears really in a sense about line 10 on that page, probably applicable to the court’s decision, to discharge of the court’s obligation to decide for itself. Your Honours, in paragraph 10, top of page 157:

identification of a specific error is not a necessary prerequisite for a successful appeal.

Your Honours, I will come back to paragraph 10 in a moment if I may, but may I just go back for a moment to what is at page 155? I was going to say, your Honours, in relation to paragraphs (4) and (5), to paragraph (4), of what is said at page 155 is that that really seems to do no more than state the law, to paraphrase the law. Similarly, in our submission, paragraph (5) is a very short version of what is said in the statutory provisions. Our learned friends criticise that it is not being 100 per cent accurate, but surely no more than a short form. Then paragraph (6), in our submission, states what is the usual situation. Your Honours will see the expression “Some County Court judges”, and also “such weight as it deems” significant used in paragraph (6).

Now, your Honours, what Justice Eames was saying in that paragraph was that he regarded Barwon Spinners as setting out the appropriate approach, and that approach was really encapsulated in what was said by Justice Phillips in that case - - -

KIRBY J: That paragraph 6 is now error, is it not, of Justice Eames. That does not represent the law?

MR JACKSON: The last sentence, I think, is, your Honour, yes, but whether it is operative error is another question. I will come to that in a moment. Your Honours, I was just going to say in relation to Barwon Spinners – might I just say, going back to paragraph (6), we do not support the contention that the County Court was a specialist tribunal. Even if it is a specialist tribunal, so what, in a sense. I will come to that a little later.

GLEESON CJ: It does seem to be a recurring theme in these post-Mobilio judgments that notwithstanding the legislative rejection of the House v The King test, County Court judges, as a class, are likely to have more experience of the range of physical injuries suffered than Court of Appeal judges. They keep coming back to that point, and indeed, it is the theme on which Justice Maxwell ends on page 167 of his reasons in the present case.

MR JACKSON: Could I just say in relation to that, your Honour, we have some difficulty with the proposition. One of these cases may be a County Court judge’s first case after a career as a lecturer in constitutional law, as can happen. Your Honours, again, the situation is that experience and judgment are not necessarily always combined.

GLEESON CJ: Indeed, but if you look at paragraph 49 in Justice Phillips in Barwon Spinners and, as I said, paragraph 43 in Justice Maxwell in the present case, it is a point they keep emphasising.

MR JACKSON: Your Honour, it is a point they keep emphasising. It has an element of truth at a level of generality in the sense the County Court obviously does a lot more of these cases than the Court of Appeal. Some County Court judges will have done many, some few, some would be in the middle. Some members of the Court of Appeal will have done quite a few of these appeals, some very few, but, as a broad proposition, more people in the County Court will have done more cases than the members of the Court of Appeal but what really perhaps is being said is expressing a view of the Court of Appeal directed perhaps not so much at the parties as at perhaps the legislature that this should be changed.

I do not know if I could take it any further than that, your Honour, but what I was going to say was, if I could perhaps go to paragraph 49 of Barwon Spinners at page 645 of that decision, whilst we do not support the reference in the last three lines of that to “the familiarity of the County Court judge” et cetera, if one goes to the earlier parts of that paragraph, however, where it is said:

To put it shortly, the appellate function will always be encouraged by an appellant’s demonstrating specific error, whether of fact or law.

I will not read it out to your Honours. The passage really goes down to about two-thirds of the way or three-quarters of the way down the paragraph but that does fundamentally, in our submission, set out the function of the court and the relationship to deciding the section 134AD issue.

Your Honours will appreciate, going back to Justice Eames for the moment, that - - -

HAYNE J: Just before you depart from Justice Phillips in Barwon Spinners, the real sting in his Honour’s fears is about the attitude of the authority, was it not, see paragraph 50, that the authority would simply appeal everything and outrun the injured worker. That was the bite in the opinion expressed. Now, that opinion may be right or wrong, but that was the basis of it, was it not?

MR JACKSON: Your Honour, it is a factor, but there is no demonstration that that has occurred and your Honour will appreciate that there are ranges of views on occasions on whether an appeal by the authority is appropriate, not always driven by the view that perhaps they should have succeeded at first instance and bodies do not act irresponsibility, your Honour. Your Honours, could I come back to Justice Eames, and your Honours will appreciate that he had said that he regarded that case as setting out the appropriate approach.

Could I go then to what is said by Justice Eames at paragraph 10 at page 157. Your Honours, some reliance is placed on this by our learned friends and particularly the second and third sentences. We have referred to this in our written submissions in paragraph 35 at page 9. May we say two things about it, your Honours? The first is that when in the second sentence he says:

Nonetheless the Court must be persuaded the judge [appealed from] was wrong in his or her decision –

he means it in the sense referred to, we would submit, in paragraph 39, that is, he is speaking about the facts, the court takes a different view on the facts from those of the primary judge.

Your Honours, the last sentence of paragraph 10 is correct and it is related to what are the facts upon which the appeal is to be heard. Your Honours, what he is saying there – and your Honours will see the actual words – he is saying this is an appeal. You do not start with an entirely clean slate. You do not merely – and your Honours will see the word “merely” there used – place the same material before the Court of Appeal as was placed before the primary judge. That material has been affected by findings of fact and matters of that kind.

GLEESON CJ: Is that the same sort of idea as you often see repeated in judgments of Courts of Appeal, that is, this is a court of error, not limited to specific error but saying this is a court of error, you have to show somebody is wrong? You do not get there by simply persuading us that if we had been deciding the case we would have come to a different conclusion.

MR JACKSON: Your Honour, if that were the view being expressed, that would not seem to accommodate itself entirely with 134AD. It would accommodate itself to perhaps issues on the way to the ultimate issue, but it may not deal with that issue because if one speaks of the court being a court of error, it does rather convey a notion which does not readily accommodate the Warren v Coombes type of issue or the 134AD issue because they do require ultimately the Court of Appeal to make up its own mind, despite the fact that the view adopted by the primary judge may have been open to the primary judge.

KIRBY J: The phrase “court of error” is commonly used in respect of this Court because of the view that has been taken of the meaning of “appeal” in the Constitution and the fact that it is a strict appeal. But even in respect of the intermediate Courts, both in respect of the Family Court and other courts, I think we have said that normally the gateway into the exercise of the statutory power involves a conclusion that the decision is wrong.

MR JACKSON: Yes, but “wrong” itself is a term which takes its meaning from its context in a sense and if one is speaking of “wrong” in relation to a factual conclusion, if I can put it this way, of a Warren v Coombes nature, when one speaks of “wrong” one is saying that the Court of Appeal has a different view from that which was open to the primary judge. That is the point, in our submission, if I come back to the last sentence of paragraph 10 that Justice Eames was making. Your Honours, could I say one further thing.

KIRBY J: Are you leaving page 156 now, of the appeal book?

MR JACKSON: I was going on to one further thing, yes, your Honour. I was going to come back to the film in a moment but if there was something else, I am happy to deal with it.

KIRBY J: No, that it what I was wondering.

MR JACKSON: Yes, your Honour. Could I just say, your Honours, this, that if one looks at paragraph 15 of Justice Eames’ reasons on page 158, whilst one might think, looking at that paragraph in isolation, that he is simply directing his conclusion to what he described as the primary argument of the other side – that is, the House v King type argument – one can see, in our submission, that it is apparent, if one looks at his reasons, when dealing with the next issue, that is, the adequacy of reasons, which starts at paragraph 16, that he had adopted, in fact, the broader approach.

In paragraph 18, under that heading at page 159, you will see that at about line 38 he had referred to the fact that in this case the issue of the facts are all set out, the issue “could be stated simply and economically”. He then goes on to say:

The facts either persuaded the judge that the impairment and loss consequences rendered it a “serious injury” or they did not. Here, they did not, and the appeal court can readily determine whether that assessment was right, by considering the factual matters set out by the judge.

KIRBY J: But do you not have a difficulty that Justice Eames, apart from mentioning it in the very short formula at the beginning of his list of six categories, he did not really examine what “decide for itself” implied and how it modified the orthodox rules of intermediate appellate rehearing decision and, secondly, that that is indicated most clearly by the fact that his search in paragraph 15 is for what the trial judge must have concluded rather than what he did conclude. He said:

I am unpersuaded that the facts as found must have led to the conclusion that the judge in conducting that evaluation must have concluded that the pain –

and so on. So his search is for what the trial judge must have concluded rather than the search of what he concluded giving due respect for what the trial judge has concluded.

MR JACKSON: Your Honour, could I just say that if one looks at paragraph 7 on page 152, he sets out the primary reasons at the start and also the last four lines of paragraph 7 on page 154 and he is dealing prima facie with that argument in paragraph 15, but the point I would seek to make is - - -

KIRBY J: But again, he does that in the context of rather Mr Kennan has submitted that her Honour’s findings necessarily should have led, in square brackets “her” to the conclusion. He is not addressing to what it leads him accepting it.

MR JACKSON: No, no, your Honour, he is reciting a submission there, and he was – you will see that he – at paragraph 7, at the start of it he recites the submission in effect. At the end of paragraph 7 he recites the same submission, then he rejects that submission in paragraph 15, but the question is then, did he apply a correct test himself? We would say he did and we would derive that, your Honours, from two things. One is the reference at the top of page 155 to the acknowledgement in Barwon Spinners of the fact that the court had to decide by itself, and then the passage to which I referred a moment ago at page 59 in paragraph 18, lines 37 to 41 or 42, that it was for them to decide, and they had.

And, your Honours, that he was adopting such an approach is apparent also, in our submission, from the way in which he dealt with the disfigurement claim, which you will see at page 161 paragraph 24. Now, you will see there he said:

The assessment of the severity of a disfigurement necessarily involves a value judgment. We had before us photographs taken many years before the hearing of the application. Her Honour’s conclusion was based on her own inspection of the scarring and relating that to the evidence of the appellant, including the videotaped evidence . . . members of this Court had –

and I will not read out the remainder of the paragraph, and he is expressing his own view, bearing in mind, your Honours, he is speaking of something where a burden of proof lay on the claimant. That is the language in which he expressed himself.

Your Honours, could I come then back to paragraph 9 on page 156. Could I just say these things, your Honours, in relation to the film and the in-court demonstration. I will take your Honours to the reference more specifically in just a moment. Your Honours will appreciate that on the hearing of an appeal in effect the parties are conducting the appeal and they may or may not choose to emphasise or not emphasise particular parts of it. So far as the film was concerned, there was a summary in the primary judge’s reasons of what there was to be seen on the film. Your Honours, I will give - - -

KIRBY J: The film advantaged you, did it not? The film was your good evidence because it tended to show that this man whose background had been heavy work was able to do quite a bit of heavy work after the injury?

MR JACKSON: Yes, your Honour.

KIRBY J: So if anybody had been wanting to press it on the Court of Appeal it would have been your side, not the appellant?

MR JACKSON: Your Honours, I will give your Honours, if I may do so, copies of the pages of the transcript of the argument in the Court of Appeal. What happened at page 38 was simply this:

PRESIDENT: As I understand it, there is no criticism of Her Honour’s description of what the film shows.

Mr Forrest, then appearing for our side said:

No. And the film is here.

PRESIDENT: We don’t want to see it, and we haven’t been asked to look at it, so I think we will press on.

MR FORREST: Yes. We would invite the court if it felt necessary to look at it. Not now, but - - -

PRESIDENT: In our leisure time –

and some badinage, if I might use that expression, about the ability of the members of the court to have leisure time, nothing more than that. The court was not asked to look at it and people accepted that the summary was sufficient.

GLEESON CJ: How long did the film last?

MR JACKSON: About an hour, your Honour.

KIRBY J: Do you ask us to look at it in our leisure time?

MR JACKSON: I do not ask the Court to look at it, and if I may be relieved from answering the remainder of that question, your Honour. Your Honours will see a reference to where the film was shown at first instance at page 25 of the appeal book, line 3. The film began to be shown between lines 3 and 4, in effect, on that page. The film was actually admitted at page 35 of the application.

HAYNE J: The primary judgment summarises its effect at 131, is that right?

MR JACKSON: Yes, I think that is right, your Honour, yes.

GLEESON CJ: Is that a convenient time, Mr Jackson?

MR JACKSON: Yes, your Honour, I expect to be about 10 minutes.

GLEESON CJ: We will adjourn until 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GLEESON CJ: Yes, Mr Jackson.

MR JACKSON: Thank you, your Honours. May I correct two matters as to which I misled the Court this morning. One was about jurisdiction of the Supreme Court and the position is that the County Court is given an exclusive jurisdiction in a number of matters which appear to include matters of the kind presently in question. That is dealt with by section 39(1).

GUMMOW J: Of the County Court Act?

MR JACKSON: No, I am sorry, your Honour, of the Accident Compensation Act, in particular, 39(1)(a) which says that:

the County Court has exclusive jurisdiction to inquire into, hear and determine any question or matter under this Act arising after –

a particular date –

out of:

(a) any decision of the Authority, employer or a self-insurer –

and the qualifications to that do not appear to affect that relevantly so that it would pick up section 134AB(16). Your Honours, 134AB(16) and (19) exclude the powers of the Magistrates Court and the reason for that appears to be section 43 of the Accident Compensation Act, which by section 43(1) gives the County Court – I am sorry, your Honours, it starts with the premise that:

If:

(a) the County Court would have had jurisdiction under this Act or the Workers Compensation Act 1958 to inquire into, hear and determine any question or matter –

but the value of the matter in issue does not exceed 40,000, the Magistrates Court can do it. That is why, your Honours, it seems both paragraphs 16 and 19 of section 134AB contain a reference to the Magistrates Court.

That is why, your Honours, it seems both paragraphs 16 and 19 of section 134AB contain a reference to the Magistrates Court. Your Honours, I should also mention that section 39, the exclusive jurisdiction provision, does have to be read with section 252C which is a provision which makes it clear that the conferral of exclusive jurisdiction operates in derogation of section 85 of the Constitution Act which is a provision that gives the Supreme Court its general jurisdiction and requires that an Act which takes that away is to state the fact that it is doing so. So I am sorry, your Honours, for the information I gave the Court this morning.

Your Honours, the second matter to which I would go concerns the transcript of the demonstration of the hand and the film. I said I would give your Honours copies of the relevant pages of that, the transcript in the Court of Appeal. Your Honours will see we have extracted only parts of the course and they relate to those two aspects. At page 19 your Honours will see at the top of the page that they are dealing with the situation where the plaintiff or the claimant is about to be examined, as it were, by the court. You will see a question about the light and so on. Then, your Honours, about line 22 on page 19 he is asked to show various things, and that goes over through to page 20.

Then that appears to be about the end of it at line 10. So far as the film is concerned, the passage I read to your Honours is at page 38 and it goes over just to the top of page 39. Your Honours, the final point I wanted to make before going on to the specialist tribunal question was this, that it is clear, it is submitted, that Justice Maxwell formed his own view on the evidence. Could I, in that regard, refer your Honours to the appeal book at page 164, paragraphs 32 to 34.

KIRBY J: Page 160?

MR JACKSON: It really starts at the bottom of page 163 but the relevant part of paragraph 32, your Honours, is on page 164, about line 5. You will see in paragraphs 32 and 33 his Honour setting out what appears to be a correct test. Your Honours will see in paragraph 34 he speaks of the conclusion. He speaks of:

the opportunity that was afforded to us to inspect the scarring for ourselves, and to observe the extent of impairment of function of the arm. Nothing in that inspection altered my appreciation of the significance of the disfigurement, and the impairment, from the appellant’s point of view. But nothing I observed suggested that her Honour had erred in the conclusion she arrived at.

Then, your Honours, paragraph 43 on page 167, a sentence commencing in the third line:

when appeal court judges are asked – as we were asked today – to have a look at scarring on an arm, and limitations of movement in an arm, and make up our minds as to whether, in the range of possible impairments or disfigurements which we might be able to imagine, the relevant adjectival phrase was applicable. That is, of course, what we are required to do on an appeal by way of rehearing.

Then he goes on to speak a little more generally of saying it gives rise to the possibility of inconsistent decision-making but, your Honours, in the result it is apparent, we would submit, that he too had applied his mind to the question. Your Honours, could I come then to the question of the specialist tribunal. If I could take your Honours to our written submissions for a moment, paragraphs 40 and following at page 10.

We invite the Court to note that the two references to the concept are at page 156, subparagraph (6) of Justice Eames’ paragraph 8 where he uses the expression “specialist tribunal”. Justice Maxwell, in the passage to which I have referred just a moment ago at paragraph 43 does not say “specialist tribunal”. Your Honours, we do not submit that the County Court can be regarded in any relevant sense as being a specialist tribunal and, your Honours, we say that in paragraphs 42 and 43 of our written submissions, but the point we would seek to make about it first is that, in our submission – and this is the point I made in paragraph 44 – the court’s actual decision does not seem to have turned on that issue.

Justice Eames said simply that some County Court judges were dealing with cases almost daily. He did not specifically attribute any expertise to the judge in this case, nor are Justice Maxwell’s observations at paragraph 43 other than very generally expressed. They may have a slight policy element to them. Could I say also, your Honours, just this, that the - - -

KIRBY J: What is the answer to a suggestion that the Court of Appeal has to reach its own decision and in reaching that decision Justice Eames, with whom Justice Neave without modification agreed, took into account a conclusion which is conceded and now found by the Court of Appeal of Victoria to be erroneous?

MR JACKSON: Your Honour, what he did was to say they are, in effect, treating it as a specialist tribunal, but that seems to be – if your Honours were to look at paragraph 8 where he deals with this issue, he refers to a number of propositions set out in Barwon Spinners and he lists those as general propositions. He says they are apposite to the present case. That is as far as it goes. If one is looking to see what aspect of the specialist tribunal actually manifests itself in the case, it is very difficult to see, and in particular, your Honour, where one looks to see in paragraph 7 the summary of the judgment of the primary judge and also the fact that it was said there was no specific error alleged in her decision. Now, your Honour, I cannot take it any further than that but that is what we would submit.

Could I just say this, your Honour, we do not suggest, as I said a moment ago, that the County Court was a specialist tribunal, but we also do not submit that particular reliance was actually placed by the Court of Appeal on that assumption.

So far as deference to specialist tribunals is concerned, we have given the Court a reference, and I think your Honours would have an extract from a decision of the Court in Corporation of the City of Enfield v Development Assessment Commission and Another [2000] HCA 5; (2000) 199 CLR 135 at paragraphs 39 to 51. It is dealing with specialist administrative tribunals but the observations there made appear to be against the proposition that deference to the views of a specialist tribunal is actually required.

Your Honours, it does not really affect the present case, in our submission, but we thought we should give your Honours a reference to those parts of the case and the observations there made do not seem to have been touched in later cases.

GUMMOW J: This is the Chevron doctrine?

MR JACKSON: Yes, your Honour, yes.

GUMMOW J: Or lack of attraction to the Chevron doctrine, I suppose.

MR JACKSON: Your Honour, that is right. I do not now recall whether I was urging the Court adopt it, which I suspect not, or the other but, in any event, it did not. Whatever it was, the Court was not enamoured of it.

KIRBY J: It engenders an awful lot of writing in the United States, the Chevron doctrine. It just seems inconsistent with our notions of the rule of law, that everybody comes to the judgment seat equal.

MR JACKSON: Your Honour, the United States engenders a great of writing – I do not mean this offensively – on a great deal of topics. There is a very large book on aspects of the constitutional doctrine that are determined otherwise than by the courts.

KIRBY J: The Victorians have filled up their time writing on this problem that was now before us.

MR JACKSON: Your Honour, discussions involving regional distinctions are ones that are not profitable from this side of the Bar table.

GLEESON CJ: Thank you, Mr Jackson. Yes, Mr Kennan.

MR KENNAN: Your Honour, we just wanted to make a few points in reply. Firstly, when the respondent says that in fact Justice Eames did decide the case for himself, we say that is not a correct interpretation of his judgment. At no point is there any indication that he decided for himself and insofar as it is suggested that when Justice Eames used the phrase “wrong” in his judgment in reference to the primary judge’s opinion, that that is the same as saying “different”, we say that a reading of Justice Eames’ judgment in the paragraphs we referred to earlier demonstrate that he was in fact looking for error and that when he used the word “wrong” he meant wrong and that is not the same as saying that he was applying a test as to whether or not he came to a different conclusion, he having decided for himself.

We also say that there are clear passages in his judgment where he was deferring. Not only did he set out the propositions, including the propositions my learned friend has just referred to, in paragraph 8 of his judgment from Barwon Spinners and the reference to a specialist tribunal, but he went on in the opening line of paragraph 9 to say that:

These remarks are in my opinion apposite to the present case, save that the appellant’s credit was not in issue.

So we say it is clear from his judgment that he was not only stating the general principles for, as he saw them, flowing from Barwon Spinners but that he was also applying them to the present case.

KIRBY J: How would you best describe in your submission the way in which the Court of Appeal should regard the decision of the primary judge? Do they ignore it completely? Do they take it into account?

MR KENNAN: They can certainly take it into account, your Honour, and should take it into account insofar as it gives the history of the proceedings. It sets out the evidentiary matters on which - - -

KIRBY J: I am not referring to the reasons, I am referring to the conclusion on the ultimate issue.

MR KENNAN: Your Honour, we would say that the terms of section 134AD simply require them to decide for themselves whether it was a serious issue. They have to form that opinion on that ultimate issue, which we say is a legal question, whether or not the County Court judge was of the same opinion, that is, we do not see that there is any particular weight or deference to be placed by the Court of Appeal in relation to the legal opinion expressed from the found facts in this case not contested by the County Court judge. If there is a difference of opinion on those facts as to whether or not the legal test for serious injury is satisfied between the judges in the Court of Appeal on the one hand and the County Court judge on the other hand, it is the opinion on the ultimate question of the Court of Appeal which must prevail.

KIRBY J: That despite the fact that the process is called by the statute, by the County Court Act, an appeal and that the obligation in 134AD to decide for themselves is fixed to the Court of Appeal of the State in the process called an appeal?

MR KENNAN: Yes, your Honour, because 134AD, the appeal having been launched under section 74 of the County Court Act, section 134AD then says on the question of serious injury it is for the Court of Appeal to decide that question – and it refers to it in so many words - of serious injury for itself. We really say, bluntly, your Honour, the words cannot be plainer. We also say that it is not correct, with respect, to suggest that Justice Maxwell decided for himself – paragraph 34 that was referred to speaks in terms of error and his last paragraph in his judgment, that is paragraph 43 which is at appeal book 167, expressly returns indeed to the nature of, “pay proper regard to the advantages of the trial judge” and is - - -

GUMMOW J: Was that paragraph 43?

MR KENNAN: Paragraph 43, appeal book 167, your Honour. I wanted to take the Court to the last sentence on appeal book 167 when he said:

That is why we must pay proper regard to the advantages of the trial judge, as delineated in Barwon Spinners –

and we say that is significant because it was Barwon Spinners that had referred to this advantage of expertise of the judges, and his Honour went on to say –

and keep steadily in mind that our focus, having examined the evidence, is on whether the judgment below was wrong.

Now, we say that is an error. We say that their task was to decide, having examined the evidence, whether they thought the injury was a serious one, not whether the judgment below was wrong. We say that that cannot be interpreted as being the equivalent of Justice Maxwell saying, “I have looked at this, I have reached my own conclusion and my conclusion is that it is not a serious injury”. That is different from asking, was the judgment wrong?

GLEESON CJ: The difference being?

MR KENNAN: Being that, your Honour, it is possible to say that one has a different opinion to another person or another judge on the matter and that, however, one is not prepared to say the other opinion is wrong, that is, a judge may indeed have a different opinion on the ultimate conclusion but fall short of saying that the judgment is wrong or there is an error. We would also say the path of reasoning in the two is different. We say that the path of reasoning required by section 134AD is to look at the evidence and for the court to decide for itself whether the injury is serious.

GLEESON CJ: I can understand the difference to which you refer when you are dealing with a matter of subjective opinion or taste. If somebody says, “I think that is a beautiful piece of music”, another person might say, “I do not think it is a beautiful piece of music”, it would be rather surprising to hear somebody say, “You are wrong, that is not a beautiful piece of music”. That would sound not only impolite but an unusual way of expressing a difference. But although there is a lot of emphasis in some of the decisions you have taken us to, to the impressionistic nature of the decision that has to be made, it is not a question of taste or a question of purely subjective feeling or discernment, is it?

MR KENNAN: No, it is not, your Honour, but it is still a different thing when the court is being asked to substitute what is in effect its own opinion or legal inference to be drawn from the set of facts that are found to being asked whether or not, examining the judgment below, the judgment is wrong.

KIRBY J: Did you look to see whether or not there was any equivalent to this in other States?

MR KENNAN: We have not been able to find anything, your Honour.

KIRBY J: So that your submission is, on your researches, not only is this unique to Victoria but it is unique to the Commonwealth.

MR KENNAN: As far as we are aware, yes, your Honour.

KIRBY J: There are of course similar histories in other States of the Commonwealth. I know that in New South Wales damages at common law were abolished and then restored under certain conditions, but I do not recollect whether they have a provision like this in Victoria.

MR KENNAN: I think the serious injury creature is a creature of Victoria only.

KIRBY J: There are certainly assessments in other States according to that American table.

MR KENNAN: Yes.

KIRBY J: Which I gather operates also in Victoria.

MR KENNAN: Yes, it does, your Honour. Indeed, one of the alternative ways of establishing a serious injury is if the authority agrees that, on the table of impairments, a certain percentage is reached. A serious injury is what is described as the narrative test rather than the more mathematical test in the table.

The final aspect we would want to refer to is that we do say that the aspect or concept of a specialist tribunal flavours both the judgment of Justice Eames and Justice Maxwell. We say that the relevance of that point is that, insofar as they are having deference on the ultimate question to the expertise or specialist tribunal nature of the primary judge, that is an indication they are not in fact approaching this by looking at to decide it for themselves; they are rather looking at it through the lens of the judgment of the primary judge, giving deference to that and seeing whether there is error in that and then dealing with the appeal as a result of that examination, rather than dealing with the appeal as section 134AD requires them to – and that is to decide the question of serious injury itself for themselves.

I think unless there is anything else, that completes the matters we wanted to put, your Honour.

GLEESON CJ: Thank you, Mr Kennan. We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow. Sorry, did you want to say something?

MR KENNAN: We have just made available, I think, to the Court the full copy of the second reading speech.

GLEESON CJ: Thank you.

MR KENNAN: Yes, thank you.

GLEESON CJ: We will adjourn until 10.15 tomorrow morning.

AT 2.42 PM THE MATTER WAS ADJOURNED