Forster v Hunter New England Area Health Service

Court of Appeal (NSW)|2010-04-29|Before: McColl JA, Macfarlan JA, Hulme J, Coll JA, MacFarlan JA

CITATION: Forster v Hunter New England Area Health Service [2010] NSWCA 106

JUDGMENT OF: McColl JA at 1; Macfarlan JA at 2; Sackville AJA at 37

(1) Leave to appeal granted; (2) Appeal allowed; (3) Orders made by R A Hulme J on 19 February 2010 set aside; DECISION: (4) Order that the respondent pay to the applicants within fourteen days the sum of $20,000 by way of an interim payment pursuant to s 82 of the Civil Procedure Act 2005; (5) Direct that within fourteen days the applicants file the draft Notice of Appeal included in the Appeal Papers; (6) Order the respondent to pay the applicants' costs of the proceedings at first instance and on appeal; and (7) Order that the respondent have a certificate under the Suitors' Fund Act 1951, if qualified.

CATCHWORDS: PROCEDURE - application for interim payment - construction of s 82(3)(c) of Civil Procedure Act 2005 - burden of proof - EVIDENCE - expert evidence - no weight to be given to expert evidence that is devoid of reasoning

Civil Liability Act 2002 Civil Procedure Act 2005 LEGISLATION CITED: Courts Legislation (Civil Procedure) Amendment Act 1991 Supreme Court Act 1970 Trade Practices Act 1974 (Cth)

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Crago v Pleve Pty Ltd [2002] NSWSC 1251 Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh [1953] SC 34 Eldridge v Royal Alexandria Hospital for Children [2008] NSWSC 886 Frellssen v Crosswood Pty Ltd (1992) 15 MVR 343 Gibbons v Wall (unreported, English Court of Appeal, Civil Division, 1988) CASES CITED: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Matouk v Hungry Jacks Pty Ltd [2009] NSWSC 1176 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 Ricci Burns Ltd v Toole [1989] 1 WLR 993; [1989] 3 All ER 478 Schott Kem Ltd v Bentley [1991] 1 QB 61; [1990] 3 All ER 850 Spencer v Australian Capital Territory [2007] NSWSC 303 Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367

TEXTS CITED: Phipson on Evidence, 15th edition (2000) London Sweet & Maxwell Ritchie's Uniform Civil Procedure NSW (LexisNexis Butterworth)

Paul Forster (First Applicant) PARTIES: Mandy Forster (Second Applicant) Hunter New England Area Health Service (Respondent)

COUNSEL: J Anderson (Applicants) G Gregg (Respondent)

SOLICITORS: TL Lawyers (Applicants) GILD Insurance Litigation Pty Ltd (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20394/2009

LOWER COURT DATE OF DECISION: 19 February 2010

LOWER COURT MEDIUM NEUTRAL CITATION: Forster v Hunter New England Area Health Service [2010] NSWSC 74

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2010/00049897 SC 2009/20394

McCOLL JA MACFARLAN JA SACKVILLE AJA

14 MAY 2010 FORSTER v HUNTER NEW ENGLAND AREA HEALTH SERVICE Judgment 1 McCOLL JA: I agree with Macfarlan JA's reasons and the orders his Honour proposes. 2 MACFARLAN JA: This is an application for leave to appeal from a decision of R A Hulme J dismissing an application by the plaintiffs in the proceedings before him (the applicants in this Court) for an interim payment of $20,000 pursuant to s 82 of the Civil Procedure Act 2005. The proceedings arise out of the death of Matthew Forster ("the Deceased") who was the son of the first applicant and the stepson of the second applicant. The hearing in this Court extended to argument on the appeal that would follow if leave were granted. 3 In their Statement of Claim the applicants allege that:

(a) On 11 August 2007 the Deceased was taken to the Manning Base Hospital at Taree, a hospital for which the defendant (the respondent in this Court) was responsible;

(b) The Deceased was suffering from abdominal pain which he had had for one week. It had been getting worse during the three days prior to 11 August 2007;

(c) The Hospital examined the Deceased, collected blood samples, undertook or arranged pathological analysis of the blood samples and prescribed for the Deceased a "cocktail" of antacid and Lignocaine;

(d) The Hospital discharged the Deceased later on 11 August 2007 or alternatively permitted the Deceased to discharge himself on that day;

(e) Later on 11 August 2007, or early on 12 August 2007, the Deceased died as a result of peritonitis secondary to a perforated duodenal ulcer;

(f) The Deceased's death was caused by the negligence of the Hospital in a number of respects including the failure of the Hospital properly to diagnose the Deceased's condition, adequately to act upon the Deceased's blood test results, to conduct an appropriate radiological examination and properly to treat the Deceased;

(g) As a result of the Deceased's death the applicants suffered psychological trauma resulting in severe depression for which they have received and continue to receive psychiatric treatment; and

(h) The applicants have suffered and continue to suffer pain, distress and economic loss flowing from the Hospital's negligence. 4 The proceedings were entered in the Professional Negligence List maintained in the Common Law Division. This Court was informed that the times fixed by the Practice Note relating to that List for the lodgement of experts' reports had passed by the time of the interlocutory application before R A Hulme J. A date has not been allocated for the final hearing of the proceedings due to the holding of an inquest into the death of the Deceased. 5 In December 2009 the Hospital consented to an order for an interim payment to the applicants of $20,000. This was received and disbursed by them. By Notice of Motion filed on 15 February 2010 they sought a further interim payment. This application was the subject of the judgment at first instance. In support of their application the applicants gave unchallenged evidence of strong financial need on their part. 6 On the hearing of the application at first instance the applicants tendered reports of experts providing evidence that the applicants have psychiatric disorders arising out of the death of the Deceased and the circumstances in which it occurred. The Hospital did not complain of any deficiency in the applicants' evidence on this topic. 7 As to the alleged negligence of the Hospital, the applicants tendered first a report of Associate Professor Lindsay Murray. The report is a detailed, reasoned report critical of the diagnosis, testing and treatment of the Deceased. It constitutes significant evidence in support of the allegations of negligence on the part of the Hospital. Counsel for the Hospital submitted that this report is deficient because it does not address the question of whether what the Hospital did would be regarded by "peer professional opinion" as competent professional practice (see s 5O of the Civil Liability Act 2002). I do not accept this submission. In my view it is implicit in the report that Associate Professor Murray regarded what occurred as departing in a number of important respects from accepted professional practice. 8 Secondly, the applicants tendered a report of Professor David Morris. This report contains conclusions strongly critical of the Hospital's conduct but does not contain any significant reasoning to support the conclusions. 9 Thirdly, the applicants tendered a report of Professor Gordian Fulde who has had extensive experience in the field of emergency medicine and is presently the Director of the Emergency Department at St Vincent's Hospital in Sydney. The report records that Professor Fulde was supplied with copies of a number of documents including the Statement of Claim, a statement of assumptions, the Hospital's clinical record in respect of the Deceased and an autopsy report. The last three mentioned documents were not in evidence on the present application. 10 The expression of opinion by Professor Fulde was confined to the following paragraph in his report: "In my opinion, given the instructions of the brief and based on the clinical notes, there was no departure by the Hunter and New England Area Health Service from peer practiced, competent professional management relating to the attendance of the late Matthew Paul Forster to the Emergency Department of Manning Base Hospital on 11 August 2007 at 0913hrs".

The statutory provision 11 Section 82 of the Civil Procedure Act, under which the present application was made, is relevantly in the following terms: "(1) In any proceedings for the recovery of damages, the court may order a defendant in the proceedings to make one or more payments to the plaintiff of part of the damages sought to be recovered in the proceedings.

(2) The court may make such an order against a defendant on the application of the plaintiff at any stage of the proceedings.

(a) the defendant has admitted liability, or (b) the plaintiff has obtained judgment against the defendant for damages to be assessed, or (c) the court is satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the defendant.

(4) The court may not make such an order if the defendant satisfies the court that: (a) the defendant is not insured in respect of the risk giving rise to the plaintiff's claim for the recovery of damages, and

(b) the defendant is not a public authority, and (c) the defendant would, having regard to the defendant's means and resources, suffer undue hardship if such a payment were to be made.

(5) The court may order a defendant to make one or more payments of such amounts as it thinks just, but not exceeding a reasonable proportion of the damages that, in the court's opinion, are likely to be recovered by the plaintiff.

(6) In estimating those damages, the court is to take into account any relevant contributory negligence, and any cross-claims, on which the defendant may be entitled to rely."

The Judgment at First Instance 12 As to the onus to be discharged by the applicants, the primary judge referred to the decision of Mathews AJ in Matouk v Hungry Jacks Pty Ltd [2009] NSWSC 1176. In that case her Honour decided to proceed, with the agreement of both counsel appearing before her, upon the basis that for the Court to make an order under s 82(1) in reliance upon s 82(3)(c) it should be "comfortably satisfied" of the matter referred to in that subsection (Matouk at [11]). 13 The primary judge then referred to the statement in Ritchie's Uniform Civil Procedure NSW (LexisNexis Butterworth) that "in determining whether the plaintiff has discharged its onus it will be proper for the court to have regard to the uncertainties of litigation and to require satisfaction 'toward the top of the flexible scale' of the civil burden of proof", for which propositions the following authorities were cited: Ricci Burns Ltd v Toole [1989] 1 WLR 993; [1989] 3 All ER 478; Schott Kem Ltd v Bentley [1991] 1 QB 61; [1990] 3 All ER 850 and Frellsen v Crosswood Pty Ltd (1992) 15 MVR 343. 14 His Honour then said: "7 'Satisfaction toward the top of the flexible scale of the civil burden of proof' may well be different to being 'comfortably satisfied'. However, my reasons for determining the present application do not turn upon a precise identification of the level of satisfaction required so I do not express a concluded view about it. It was the agreed position of the parties before me that I could proceed upon the basis identified by Mathews AJ and that is what I propose to do". 15 As to the words "would obtain judgment" in s 82(3)(c), the primary judge said: "10 Another aspect of s 82(3)[(c)] to consider is the meaning of 'would obtain judgment'. In Eldridge v Royal Alexandria Hospital for Children & Anor [2008] NSWSC 886, Grove J referred to (at [14]) and applied (at [28]) what was said by Brereton J in Spencer v Australian Capital Territory [2007] NSWSC 303 that the requirement in s 82(3)(c) is for the claimant to show that he/she will succeed as distinct from showing that he will probably succeed". 16 I note in passing that in Eldridge, Grove J said that the test articulated by Brereton J in Spencer had been cited to him and that it had not been submitted that he should depart from it. 17 The primary judge next referred to the three experts' reports relevant to the issue of negligence and to a submission that was made by counsel for the applicants that there were deficiencies in the report of Professor Fulde of such a nature that the report would not be admissible at the final hearing. Reliance was placed upon Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705. The judge then said that "[t]hat might well be so but it was not submitted that I should not have regard to the opinion of Dr Fulde for the purpose of the present application". I interpolate that I do not consider his Honour to have been suggesting that the applicants accepted that for the purposes of the application the report of Professor Fulde was to be accorded significant weight. The applicants' purpose in tendering the report appears to have been to demonstrate that the only evidence that had been served by the Hospital was deficient. 18 His Honour's conclusions on the application were expressed as follows: "24 The shortcomings in the report of Dr Fulde may be noted but the first issue I am dealing with on this application is a consideration of whether I am satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment.

25 There are two expert opinions that support the proposition that the defendant was in breach of its duty of care. The opinions are also favourable to the plaintiffs on the issue of causation although there are a number of matters in relation to that issue that no doubt will be explored in more detail at trial. On the other hand there is an opposing opinion by an expert who appears to be equally qualified and experienced which is to the opposite effect. I have not had the benefit of hearing the experts give evidence, which would obviously be in more detail than that which appears in the reports. Moreover, I have not had the opportunity to hear their views about the opinions expressed by the others. In these circumstances I am unable to arrive at any resolution of the conflict between the experts.

26 It is not necessary for a successful applicant for an order under s 82 to establish that the evidence is all in the applicant's favour. It may well be that a court determining such an application will be able to make a judgment upon the relative strengths of competing evidence. However, in this case where there are expert opinions that are diametrically opposed, I find myself unable to conclude at the level of comfortable satisfaction that the plaintiff would obtain judgment".

The test to be applied 19 As is apparent from [7] of the primary judgment (see [14] above) the applicants accepted at first instance that before making an order in reliance on s 82(3)(c) it was necessary for the court to be "comfortably satisfied" of the matter to which the subsection referred. The applicants did not seek to depart in this Court from that position. Rather, they submitted that, although saying that he would, the primary judge did not in fact apply that test. They pointed particularly to [24] of the Judgment referred to in [18] above. 20 I do not accept that submission. The judge referred to the words "would obtain judgment" as a separate aspect of s 82(3)(c) (see [10] of the Judgment referred to in [15] above). Paragraph [24] of the Judgment focuses on those words and does not in my view suggest that the judge did not apply the "comfortable satisfaction" test. This is confirmed by the fact that the judge thereafter (in [26] of the Judgment: see [18] above) referred again to that test. 21 Properly understood, the applicants' submission in my view relates to the way in which the primary judge applied the words "would obtain judgment". The fact that in [24] the judge emphasised the word "would" suggests that the judge was applying the observation that Brereton J made in Spencer to which he had earlier referred with apparent approval (see [10] of the Judgment quoted in [15] above). Before turning to the correctness of that observation, I should add the following comments in relation to the "comfortable satisfaction" test.

The "comfortable satisfaction" test 22 In the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 the plurality indicated that in the context there under consideration epithets designed to assist in identifying the strength of the evidence necessary to establish a matter on the balance of probabilities test were "at best unhelpful and at worst misleading" (110 ALR at 451). They said that "[t]he most that can validly be said [in the type of case under consideration] is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities" (ibid). 23 Likewise, in the present context, it is not in my view of assistance to attempt to refine the description of the standard of proof beyond saying that the word "satisfied" in s 82(3)(c) requires the court to reach its conclusion on the balance of probabilities and in doing so to have regard to the gravity of any allegations made and to the seriousness of the consequences that may flow from the making of a particular finding or order. The need to have regard to such matters was authoritatively stated by Dixon J in the seminal decision in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, especially at 362 (see also Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521-2). 24 Serious consequences may flow from the making of an order in reliance on a provision such as s 82(3)(c). As was pointed out in Ricci Burns v Toole (WLR at 1002-3; All ER at 485-6), a plaintiff who has obtained an interim payment may fail at the trial and not have the resources to repay the amount. Accordingly evidence indicating that a defendant may not be able to recover an interim payment from the plaintiff in the event that the defendant succeeds in the proceedings is a matter to be taken into account in considering the degree of satisfaction which the court considers it appropriate to be achieved in a particular case. I do not consider it to be of assistance, or indeed necessarily accurate in relation to every interim payment application, to describe the required satisfaction as having to be "toward the top of the flexible scale". Circumstances vary too much to enable this to be said of every case.

"Would obtain judgment" 25 Returning to the words "would obtain judgment" in s 82(3)(c), I express my respectful disagreement with the observation of Brereton J in Spencer (see [15] above). These words do not introduce a requirement of certainty, or near certainty, of success at trial into the test to be applied. The word "satisfied" attracts the balance of probabilities test. The words that follow identify the future occurrence that the Court must be "satisfied" will occur. Taken together, the words do not require a plaintiff to do more than show that it is more probable than not that he or she will succeed at the trial in obtaining judgment for substantial damages. The primary judge's emphasis on the word "would" before the words "obtain judgment" (Judgment [24], quoted at [18] above) and Brereton J's emphasis of the word "will" before the word "succeed" ([10] of the primary judge's Judgment, quoted at [15] above) suggest that their Honours were requiring that a plaintiff establish more than that success at the final hearing is probable. 26 I consider that there was in these circumstances an error in the primary judge's reasoning and that the application for interim payment requires re-consideration by this Court.

The expert evidence 27 The other ground of attack by the applicants upon the primary judge's decision related to the expert evidence on the negligence issue. They contended that no, or no significant, weight should have been given by the judge to the report of Professor Fulde because there is an absence of reasoning in that report. 28 The applicants are correct in saying that there is an absence of reasoning in the report. The report simply contains a conclusion (see [10] above). It does not provide any reasoning that would enable the Court to assess the force of the report and weigh it against the report of Associate Professor Murray. 29 In these circumstances I consider that the primary judge was in error in giving weight to the report. It is apparent from [25] and [26] of his Judgment (see [18] above) that he regarded the report as providing significant evidence in opposition to the case advanced by the applicants and that it was this report which resulted in his Honour being "unable to conclude at the level of comfortable satisfaction that the plaintiff would obtain judgment". 30 As Heydon JA (as his Honour then was) indicated in Makita, for an expert report to be useful it is necessary for it "to comply with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions" (at [59]). Heydon JA referred to the observations of Lord President Cooper in Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh [1953] SC 34 at 39-40 which included the following: "The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole of other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert" (cited in Makita at [59]). 31 To like effect are the statements, also quoted by Heydon JA, in Makita of Sir Owen Dixon in an extra-judicial address that "[c]ourts cannot be expected to act upon opinions the basis of which is unexplained" (Makita at [60]) and of the authors of Phipson on Evidence, 15th edition (2000) London Sweet & Maxwell, that "[i]n general, an expert may give evidence in chief as to the grounds on which he has reached his opinion, and it may be said that, without the grounds, the opinion is valueless" (Makita at [63]). 32 The application for interim payment required the primary judge to undertake a preliminary assessment, upon the basis of the evidence before him and on the balance of probabilities, of whether, if the proceedings went to trial, the applicants would obtain substantial damages. Such an assessment is in my view to be made upon the basis of the evidence put before the court as to the substantive issues and not on the basis of mere speculation as to what might or might not be the evidentiary position at the final hearing. Thus, it was for the judge here to consider on the negligence issue such of the evidence that was before him as was entitled to weight. The report of Associate Professor Murray was entitled to be given weight but, for the reasons I have given, the report of Professor Fulde was not. The report of Professor Morris in support of the applicants' case was, because of its paucity of reasoning, entitled to little weight. 33 The result is that the only significant evidence on the negligence issue strongly favoured the applicants. In my view, in reconsidering the relevant issue, this Court should be satisfied on the balance of probabilities that "if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the defendant". 34 I add in relation to the nature of the assessment to be made that there may be cases in which it is proved that particular, identified evidence not available at the time of the application for interim payment will be available at the trial. In my view, in such circumstances the court would need to take this into account in deciding whether it was satisfied about the relevant matter.

Conclusion and orders 35 The argument at first instance and on appeal was confined to the issues with which I have dealt above. As I indicated earlier, the Hospital did not challenge the applicants' evidence as to financial need. Nor did it contend that on any other basis it was inappropriate to make the orders sought by the applicants. 36 In these circumstances I propose the following orders:

(3) Orders made by R A Hulme J on 19 February 2010 set aside;

(4) Order that the respondent pay to the applicants within fourteen days the sum of $20,000 by way of an interim payment pursuant to s 82 of the Civil Procedure Act 2005;

(5) Direct that within fourteen days the applicants file the draft Notice of Appeal included in the Appeal Papers;

(6) Order the respondent to pay the applicants' costs of the proceedings at first instance and on appeal; and

(7) Order that the respondent have a certificate under the Suitors' Fund Act 1951, if qualified. 37 SACKVILLE AJA: I agree with the orders proposed by Macfarlan JA and, subject to the observations made below, with his Honour's reasons. 38 Part 6 Div 5 of the Civil Procedure Act 2005 ("CP Act") (ss 81-84), which specifies the circumstances in which a court can order interim payments to a plaintiff in proceedings for the recovery of damages, substantially reproduces Part 5 Div 2 of the Supreme Court Act 1970. The latter was introduced into the Supreme Court Act 1970 by the Courts Legislation (Civil Procedure) Amendment Act 1991. The 1991 amending legislation was based on English rules of court authorising the court to make orders for interim payments: RSC Ord 29 Part II. (A brief history of the English provisions is given in Schott Kem Ltd v Bentley [1991] 1 QB 61, at 69-70, per Neill LJ, with whom Glidewell LJ agreed.) 39 As Macfarlan JA has explained, the parties conducted the proceedings before the primary Judge on the agreed basis that an order could be made under s 82(1) of the CP Act, in the circumstances of the present case, only if the court was "comfortably satisfied" that: "if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the defendant" (s 82(3)(c)).

The applicants (the plaintiffs in the proceedings) did not seek to resile from their agreed position in this Court. 40 Since the parties were content to proceed on the agreed basis in this Court, it is not strictly necessary to examine whether it reflects the correct construction of s 82(3)(c) of the CP Act. Nonetheless, I think it appropriate to express my agreement with [23] - [24] of Macfarlan JA's judgment. 41 In Frellsen v Crosswood Pty Ltd (1992) 15 MVR 343, Sully J construed (at 347) s 76E(3)(c) of the Supreme Court Act 1970 (the predecessor to s 82(3)(c) of the CP Act) in accordance with the English authorities. In particular, Sully J followed Ricci Burns Ltd v Toole [1989] 1 WLR 993, where the Court of Appeal held (at 1002) that the required standard of proof under RSC Ord 29 r 11(c) (the equivalent to s 82(3)(c) of the CP Act) was high, although the burden remained the civil standard on the balance of probabilities. Ralph Gibson LJ adopted (at 1002-1003) the analysis of May LJ in Gibbons v Wall (unreported, English Court of Appeal, Civil Division, 1988), as follows: "the civil burden of proof … is a flexible test … and it depends upon the nature of that which has to be proved where on the flexible scale of the balance of probabilities one has to pitch the burden … in the context of an application for an interim payment … the burden is a high one within that standard if only because litigation of its nature involves no certainties . A plaintiff with what may appear on paper to be a strong case may find it fail at trial. If he does then he will have to repay the whole or to the extent that he fails, part of the interim payment. But … the plaintiff may spend it … If he does it may be difficult … to recover if he fails ultimately at trial. Clearly the burden resting upon an applicant in those circumstances is towards the top of the flexible scale." (Emphasis added.)

See also Crago v Pleve Pty Ltd [2002] NSWSC 1251, at [7]-[8], per Levine J. 42 Despite the approach taken in the English cases, it is not clear, in my respectful opinion, why the burden of proof should be set high simply because "litigation of its nature involves no certainties". Any determination by a court as to whether something will happen in the future involves uncertainty to a greater or lesser degree. That does not mean, however, that in a civil case the determination must be made by reference to anything other than the usual standard of proof on the balance of probabilities. 43 The well-known judgment of Deane J in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367, is of assistance in this regard. In that case, the Full Federal Court had to construe s 45D(1)(a) of the Trade Practices Act 1974 (Cth), which prohibited certain conduct that: " would have or be likely to have the effect of causing substantial loss or damage to the business of a corporation". (Emphasis added.)

Deane J held that the word " likely " was not synonymous with " more likely than not ". His Honour reasoned (at 381) as follows: "Plainly the reference to 'would be likely to have' is meant to convey a lower degree of likelihood than the reference to 'would have'. In the case where conduct has not occurred, a court would be constrained to determine whether conduct 'would have' the specified effect by reference to the ordinary standard of whether it was more likely than not that it would . In such a case, if 'likely' is interpreted as meaning 'more likely than not', it would add little to the practical scope of the section." (Emphasis added.)

Deane J did not suggest that a court should apply a higher standard of proof than the " ordinary " civil standard simply because it is assessing whether conduct " would have " the proscribed effect in the future or because an evaluation of whether particular events or consequences will occur in the future necessarily involves uncertainty. 44 It conforms with orthodox principle to hold that the gravity of the consequences flowing from a particular finding of fact may be taken into account in determining whether proof of that fact has been established on the balance of probabilities: Briginshaw v Briginshaw (1938) 60 CLR 336, at 362, per Dixon J. However, I would prefer to express no opinion as to whether the risk that an interim payment to an impecunious plaintiff will be irrecoverable should the plaintiff ultimately fail at trial, is a consequence of the kind that attracts the Briginshaw principle. The risk of irrecoverability would seem to be a matter relevant to the exercise of the discretion conferred on the court by s 82(1) of the CP Act. Whether it is also relevant to the standard of proof required to satisfy s 82(3)(c) of the CP Act is, in my opinion, best reserved to a case where the question must be decided.

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