Last Friday’s oral special leave hearing in Canberra received blanket coverage because of the appearance, in the list and in person, of Rebel Wilson, hoping to restore the defamation damages award that she lost in Victoria’s Court of Appeal. She failed, which is unsurprising, as most applications for special leave to appeal to the High Court are unsuccessful. Moreover, the Court is in the midst of downswing on special leave grants, compared to: past Novembers (where there have always been at least three and up to eight in the past decade); past three monthly cycles (three in the past three months, less than half the previous quarterly low of seven in late 2014); and past annual trends:
On the other hand, Wilson was fortunate to be one of six matters heard orally this month(compared to forty heard – and rejected – on the papers) and also to have the Court only dismiss her application after hearing both sides’ oral submissions (the only one of the four unsuccessful oral matters on Friday to be afforded that courtesy) and a four minute adjournment.
The two cases that beat the long odds to be granted special leave this month are appeals from:
- Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited  QCA 104, which concerns a factual dispute about whether a car that crashed was driven by the injured person’s father or the injured person himself. The Court of Appeal found that, while much of the evidence supported the family’s claim that the father was the driver, DNA evidence showed his son’s blood (but not his blood) on the driver’s airbag (consistently with the son’s injuries, which included tetraplegia.) Writing for the Court, McMurdo J held that the facts were finely balanced and, although the trial judge erroneously said that the son testified via a translator, ‘it is not demonstrated that the trial judge misused the advantage which he had from hearing and seeing this evidence as it was being given.’
- OKS v Western Australia  WASCA 48, which concerns whether a child sexual abuse conviction can stand despite a trial judge’s incorrect direction about the complainant’s credibility. The trial judge, referring to evidence that the complainant had previously told several lies about the abuse or the later circumstances, told the jury to ‘not follow a process of reasoning to the effect that just because [the complainant] is shown to have told a lie or she has admitted she told a lie, that all of her evidence is in fact dishonest and cannot be relied upon” The Court of Appeal accepted that this direction was wrong, but, after ‘giving very significant weight to the jury’s verdict of guilty’ on the first charge against the defendant, held held that there was ‘no substantial miscarriage of justice’.
That Lee case is brutal; quite close on the evidence (at least based on the judgments), and going one way results leads to a tetraplegic and his family being financially devastated and while the other way leads to him getting paid out by the insurer – unfortunately for him the father’s initial false statement and then failure to be called (a mere commenter is not bound by Jones v Dunkel, whether or not the inference was open to the judge!) makes me think the trial judge got it right on the balance of probabilities. Not a case you’d ever be sure beyond reasonable doubt though, you’d always feel there’s a chance you’ve devastated this poor family wrongly.
For once the transcript doesn’t really give a good indication of how the Court is leaning, although simply being granted special leave is a good sign for the family. This Court is not granting special leave willy-nilly.
I agree. Though I’d say the special leave is an extremely good sign.
The prospect of success in a civil case after special leave is granted is between 65% and 75%.
The December sittings list has now been posted-only 3 cases are listed for hearing and the sittings will take 1 week instead of 2.There are 6 special leave applications to be heard in Sydney on 14 December,with no hearings in Melbourne or Canberra.