Fitzsimmons v Coles Supermarkets Australia Pty Ltd [2014] HCATrans 29 (14 February 2014)

Last Updated: 9 July 2014

[2014] HCATrans 029

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S182 of 2013

B e t w e e n -

LESLIE FITZSIMMONS

Applicant

and

COLES SUPERMARKETS AUSTRALIA PTY LTD

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 FEBRUARY 2014, AT 11.25 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please your Honours, I appear with my learned friend, MR R.J. de MEYRICK, for the applicant. (instructed by CBD Law)

MR G.J. PARKER, SC: May it please the Court, I appear with my learned friend, MR D.A. PRIESTLEY, for the respondent. (instructed by McCabes Lawyers)

BELL J: Yes, Mr Walker.

MR WALKER: Your Honours, may I take you please to page 40 of the application book, paragraph 50 – the reasons of Justice Basten – where his Honour expressed the conclusion, for the purposes at that stage in his Honour’s reasons, of deciding what should be done, that the nature of the error which, as it happens, was found by all members of the court, in the treatment in relation to procedural fairness of the impressions formed by the trial judge for the purposes of findings as to loss and causation, where his Honour decided that they were matters which, of their nature, could not be resolved in the Court of Appeal. Nothing his Honour has said in reaching that conclusion would have been a surprise bearing in mind the way in which not only this Court but, more frequently of course in the nature of things, intermediate courts of appeal deal with the unfortunate but unavoidable outcome of a conclusion that somebody has not had the fair trial which the law requires.

Now, because of the difference between their Honours in relation to liability then the story complicates in relation to the adjudication resulting in final orders. Could I at this point flag or make a point in answer to one raised against us in writing by our learned friends? It is, in effect, to say that what occurs in Justice Basten’s reasons from paragraph 53 onwards – but I do not need to dwell on it at the moment – is the resolution of the problem which in effect means there can be no appellable grievance for us to raise in this Court.

Now, if – and I think I have to say only if – we have a point about section 45 of the Supreme Court Act then obviously that cannot be snookered by a decision being taken – it does not matter of what kind – whereby even division disappears and a conclusion is pronounced by the court. In other words, section 45 is justiciable and, if it not be observed when it should be observed, then it is obviously not to the point that there has been a unanimous outcome produced.

GAGELER J: It depends on what point in the deliberation process the judge puts pen to paper.

MR WALKER: Yes, it does. That is why I started with paragraph 50 and saying that is a conclusion and that is what his Honour would have decided to do but for what we submit is the error that this Court should look at that follows in paragraph 53 and following.

I used the word “if” earlier and added the phrase against myself “only if” for this reason. Obviously, as my friends have put in writing, there needs to be close and correct attention to what “equally divided” means in subsection (2). Some may say that there can only ever be equal division where the Bench is enjoying the high risk exercise of sitting an even numbered number of justices.

In our submission, that is not what the compound phrase “equally divided in opinion” should be held to mean. In other words, if an uneven numbered Bench can be seen not to have judicial opinions – that is, opinions which are in the nature of conclusions about what should happen – on an issue then on that issue, if that leaves, by counting numbers, the same number of justices on opposite sides of that matter then that is an equal division in opinion.

BELL J: Producing, as in this instance, the result that the orders proposed by the dissentient succeed.

MR WALKER: Your Honour, that is an unkind summary, but his Honour is not a dissentient on the question of what, if there be liability, should follow. Indeed, in order to dub Justice Basten a dissentient one needs to count the dissentient on liability, Justice Emmett, as in the majority against him. It is critical, in our submission, that when one talks about opinion and decision that there be an understanding of what are the relevant conclusions, or perhaps a singular conclusion, of an issue or issues to which, sensibly, one can apply the provisions of section 45.

Now, when it comes to the question of liability, it is quite wrong to see Justice Basten as a dissentient because the reasons of the court uphold liability – that is, in accordance with his Honour’s decision – and we are not here to complain about that, it need hardly be said. It is the disposition of the appeal on an issue which calls in the ordinary way for another order. So there is a reversal of the verdict for the defendant, liability found and then one turns to what happens – damage being the gist of the action – and the derisory sum of just under $900 resulting.

As to that amount, in our submission, it cannot be said that Justice Emmett reached a conclusion in the same way as it can be said that Justice Basten and Justice McDougall reached a conclusion. In particular, on the question of whether there should be remitter, it cannot be said that Justice Basten was to the point, as it were, before the expedient was adopted, recorded in paragraph 53 and following was mistaken.

BELL J: Does your submission respecting Justice Emmett’s conclusions on damages carry with it that in the unremarkable case when a judge finds liability not established and proceeds in accordance with the dictate of this Court to assess damages the latter assessment is in some sense provisional or lacking in the same quality as the assessment that follows a finding of liability?

MR WALKER: The short answer is yes, and may I explain why. There is no order or judgment that reflects the “but if I am wrong the damages are $1 million” conclusion that this Court has, shall I put it, encouraged courts below to go on and supply. Of course, there is any number of epithets one can use – hypothetical, provisional – to describe the status in law of that kind of conclusion. In an hierarchical judicature with a mixture of appeals by way of rehearing and strict appeals and with a systemic dislike of remitters or retrials it can be seen that the status of those first instance or intermediate appellate hypothetical or provisional conclusions is to permit, if I restrict myself to this Court, this Court to obey its duty of ordering what should have been ordered below and to inform itself and to be informed to have recourse to such conclusions.

Your Honours, I say this in particular because, although this Court encourages that to happen, I do not think the jurisprudence has come yet anywhere near the proposition that it is, as it were, the bounden duty of courts in every case, regardless of circumstances, including efficiency, to do so. It is not, in other words, requisite to a discharge of jurisdiction, as opposed to that which in most cases is best practice.

GAGELER J: You referred earlier to the systemic dislike of remitter. The order that you seek in your draft notice of appeal is, following an appeal to this Court, remitter to the District Court for a new trial as to damages.

MR WALKER: That is what we say the Court of Appeal should have ordered in accordance with paragraph 50 of Justice Basten’s reasons; yes, your Honour.

GAGELER J: We really need to be satisfied that it is in the interests of the administration of justice, two judges of the Court of Appeal having expressed a fairly firm view as to total damages, that such an order might ultimately be made.

MR WALKER: Of course that is so.

BELL J: Of course, one would add to that Justice Basten’s indication of acceptance of the difficulties respecting the plaintiff below.

MR WALKER: Your Honours, it would be idle for me to avoid that.

BELL J: It would.

MR WALKER: I am not going to. The way in which I would address it is this. This is a case where we have not had the fair trial required by law of these issues. This was not summary dismissal for the first time in the Court of Appeal, nor some modern etiolated version of that by which one does not have to reach a General Steel state of certainty about hopelessness of a case. This was a case about what ought to happen when there had not been the trial required by law.

Now, this Court and, for that matter, the Court of Appeal, would not approach that on the basis of just under $900 as the actual outcome indicates that this case does not matter, and I think no one has suggested that against us. Indeed, I think a very large sum, relatively speaking, is referred to by Justice Emmett as a reason why leave should be given, bearing in mind what, if we were correct, would follow.

But, in our submission, the look at the material without being able to form a view as to the credibility on causation and, therefore, on loss that depended upon my client’s evidence, such look, as it were, preliminary con of the voluminous and, as so often, uncross-examined contradictory medical evidence, cannot come anywhere near a functional equivalent in the administration of justice of the fair trial that we never had.

This does present as a test of the proposition whether the fair trial principle will, in exceptional cases, of which this must be one, drive an outcome which this Court and all appellate courts have always had, for the sake of the administration of justice in their armoury – that is to say, though it be a terrible thing, because you have not had it once you should now have it. It is for those reasons that there has been an illegitimate crossover by their Honours, in what I might called the majority, that is against Justice Basten in paragraph 50 – perhaps only Justice McDougall I should say – against Justice Basten on that.

In our submission, there has been a crossover in terms of material error so that it is as if it has been decided here there is no material miscarriage, therefore no retrial, where the premise of what all three judges held in relation to procedural fairness was that there had been what might be called a complete miscarriage – that is, not a fair trial according to law. There is nothing in the jurisprudence which would suggest that under Warren v Coombes and any of the canonical group of cases in this Court

concerning an appeal by way of rehearing that there can be, as it were, sketches at the question of what might happen in a trial properly conducted by a Bench which has, and should, studiously note that it is, of course, incapable of doing that which the trial judge should have done properly.

BELL J: The first special leave question in the way the application is framed asks what are the circumstances in which it is appropriate for an appellate court to determine issues of causation and the quantum of damages after reversing credit findings of the court below. That may be a more apt way of characterising what occurred as distinct from an assertion of a denial of a fair trial. This trial was marred by an error by the trial judge, as very many trials are.

MR WALKER: Yes. I am not suggesting, of course, that perfection is the prerequisite of a fair trial, no.

BELL J: But the issue as identified in the summary of argument is hardly one of general importance. It requires consideration, as the members of the Court of Appeal did, of factual issues in the light of the material that was before the primary judge.

MR WALKER: Quite so. That is why, I suppose, in conclusion we would simply move – I do not know whether this is the answer but certainly our forensic response to what Justice Bell has just said – is to be found in the approach taken by Justice Basten in paragraph 51, which does not employ the more robust language I have been using of has not had a fair trial, but it does say how could one say in these circumstances that there has not been a substantial wrong or miscarriage, unless one starts to assume conclusions which manifestly could have been affected by a different approach to the assessment of my client’s credibility.

For those reasons, in our submission, your Honours, which overlap between matters of important systemic principle, the Supreme Court Act, but also the justice of the particular case, special leave is an appropriate grant. May it please your Honours.

BELL J: We do not need to hear from you, Mr Parker.

In our view, no question of general public importance is raised by the application. If special leave to appeal were granted the appeal would have insufficient prospects of success. Special leave is refused with costs.

AT 11.42 AM THE MATTER WAS CONCLUDED