Davis v Veigel
[2011] NSWCA 170
•29 June 2011
Court of Appeal
New South Wales
Case Title: Davis v Veigel; Davis v Broughton; Bell v Veigel; Bell v Broughton Medium Neutral Citation: [2011] NSWCA 170 Hearing Date(s): 2 and 3 June 2011 Decision Date: 29 June 2011 Jurisdiction: Before: Hodgson JA at [1]
Macfarlan JA at [2]
Young JA at [109]Decision: (1) Appeal of Mr Davis in the proceedings brought by Mr Veigel dismissed with costs;
(2) Leave to appeal granted to Mr Davis in the proceedings brought by Mrs Broughton;
(3) Appeal of Mr Davis in the proceedings brought by Mrs Broughton dismissed with costs;
(4) Leave granted to Messrs E Bell and Dee to appeal in relation to costs orders made on 18 September 2009 in the proceedings brought by Mr Veigel and Mrs Broughton;
(5) Appeal of Messrs E Bell and Dee for which leave was granted in Order 4 above dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]Catchwords: APPEAL - civil - fact finding - car accident caused by truck towing a caravan - differing evidence as to the identity of the offending vehicle and its driver - primary judge's findings credit-based - whether alleged errors in primary judge's reasoning sufficient to vitiate decision
PROCEDURE - pleadings - UCPR r 14.14(2)(a) - surprise rule - car accident caused by truck towing a caravan - witness for two defendants gave evidence indicating that non-party likely cause of accident - hearing adjourned to enable plaintiffs to join non-party as defendant - whether rules of pleading required defendants to plead involvement of non-party at least in the alternative - whether defendants entitled to apply ambush theory of litigation - whether primary judge construed UCPR r 14.14(2)(a) in such a way as to put it in conflict with UCPR r 14.7
Legislation Cited: Civil Procedure Act 2005
District Court Act 1973
District Court Rules 1973
Motor Accidents Compensation Act 1999
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005Cases Cited: Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186
Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349
Kirby v Sanderson Motors Pty Ltd [2002] NSWCA 44; (2002) 54 NSWLR 135
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116
Shimokawa v Lewis [2009] NSWCA 266
White v Overland [2001] FCA 1333Texts Cited: Category: Principal judgment Parties: Dean Leslie Davis
John Veigel by his tutor Paula Tallen
Elwin L Bell
Jamie Dee
Christine Broughton
The Nominal DefendantRepresentation - Counsel: Counsel:
Dean Leslie Davis - R W Seton SC/P L Carr
Elwin L Bell and Jamie Dee - J E Maconachie QC/C L Thompson
Christine Broughton - J M Morris/A C Hemmings
The Nominal Defendant - R R Stitt QC/D M Wilson- Solicitors: Solicitors:
Dean Leslie Davis - Curwoods Lawyers
John Veigel by his tutor Paula Tallen - Stacks/Goudkamp Lawyers
Elwin L Bell and Jamie Dee - Carroll & O'Dea Lawyers
Christine Broughton - Keddies Litigation Lawyers
The Nominal Defendant - Sparke Helmore LawyersFile number(s): CA 2009/298530; CA 2009/2098529; CA 2009/298551; CA 2009/298552 Decision Under Appeal - Court / Tribunal: - Before: Walmsley DCJ - Date of Decision: - Citation: - Court File Number(s) DC 8279/2002; DC 1082/2004 Publication Restriction:
Judgment
HODGSON JA : I agree with Macfarlan JA.
MACFARLAN JA :
NATURE OF CASE AND CONCLUSIONS
At about 2.10 pm on Sunday 11 February 2001 a collision occurred on the Princes Highway approximately 10 kilometres north of Bega between motor vehicles driven by Mr John Veigel and Mrs Christine Broughton. Both drivers were severely injured. Mr Veigel had been travelling north and Mrs Broughton travelling south. The collision occurred as a result of a southbound truck that was towing a caravan (the "Offending Vehicle") moving from the left hand lane into the centre lane in which Mrs Broughton's vehicle was travelling, forcing Mrs Broughton's vehicle onto the wrong side of the road where it collided with Mr Veigel's oncoming vehicle.
Amongst the traffic that was southbound at the time were vehicles driven by persons who conducted side-shows at shows that took place from time to time at different locations in the eastern states. A show at Nowra having concluded on the previous day, these people were proceeding to Bega to prepare for a show that was to take place the following weekend. Included amongst their vehicles were a semi-trailer driven by Mr Owen Bell and a truck, towing a caravan, that was being driven by Mr Jamie Dee. Mr Owen Bell owned the caravan and his father, Mr Elwin Bell, owned the truck.
Mr Veigel and Mrs Broughton subsequently commenced the present two sets of proceedings claiming damages from the Nominal Defendant upon the basis that they had been injured as a result of the negligence of the driver of the Offending Vehicle (the "Offending Driver") and that the identity of the Offending Vehicle and the Offending Driver could not be established (see Motor Accidents Compensation Act 1999, s 34). They subsequently joined Mr Dee and Mr Elwin Bell (as the owner of the vehicle that Mr Dee was driving) as defendants upon the basis of an alternative allegation that the vehicle being driven by Mr Dee was the Offending Vehicle.
On 3 August 2004, which was at least the 16 th day of the hearing of these two sets of proceedings, Mr Owen Bell, who was called as a witness by Messrs Elwin Bell and Dee, gave evidence that he had observed Mr Dean Davis, a person he had known for a long time and who was also involved in the show circuit, to be driving a truck towing a caravan southbound in the near vicinity of the accident at or about the time that it occurred.
None of the parties to the two sets of proceedings, other than Messrs Elwin Bell and Dee, were aware prior to the evidence being given that Mr Owen Bell would assert that he had observed Mr Davis to be present at the time and place of the accident. As a result, the hearing of the two sets of proceedings was adjourned and both Mr Veigel and Mrs Broughton joined Mr Davis as a defendant. Following a further hearing, Coorey DCJ found, on 12 May 2005, that Mr Dee had caused the accident. Mr Davis had denied in evidence that he and his vehicle were anywhere near the location at which the accident occurred. This Court subsequently set aside Coorey DCJ's finding and remitted the proceedings for a new trial ([2008] NSWCA 36). The High Court refused an application for special leave to appeal ([2008] HCATrans 303).
The retrial commenced before Walmsley DCJ on 27 April 2009. Ms Stacey Grey gave evidence at that trial. She had not given evidence at the earlier trial. The parties, arguably other than Messrs E Bell, Dee and Davis, had not known, at least not prior to Mr Owen Bell giving evidence at that earlier trial, that Ms Grey might be able to give relevant evidence. Ms Grey gave evidence that she was in Mr Davis' vehicle at the time and place of the accident. The clear implication of her evidence was that Mr Davis' vehicle was the Offending Vehicle. At the time of the accident Ms Grey was Mr Davis' partner. They had a child together but separated prior to 2008.
By judgment of 19 June 2009 Walmsley DCJ found that Mr Davis and his vehicle were present at the location where the accident occurred and that Mr Davis' negligence caused the accident.
In the Veigel Proceedings Mr Davis appealed as of right to this Court. In argument, the grounds of his appeal were grouped under three broad headings. First Mr Davis contended that in identifying the Offending Driver the primary judge erroneously treated his task as one of choosing between Mr Dee and Mr Davis and failed to consider a third possibility, namely, that the accident was caused by the driver of a third, unidentified vehicle. He contended secondly that there were fundamental errors in the primary judge's reasoning concerning Ms Grey's evidence and, thirdly, that the primary judge's reasoning in rejecting Mr Davis' evidence was flawed.
For reasons that I give below, I do not consider that any of these challenges to the primary judge's decision are well-founded. The appeal should accordingly be dismissed.
In the Broughton Proceedings Mr Davis sought leave to appeal against Walmsley DCJ's decision on the same grounds. Mr Davis requires leave to appeal because the primary judge's judgment, in so far as it related to the Broughton Proceedings, was interlocutory as damages have not yet been assessed. In my view it is appropriate that leave be granted. However Mr Davis' appeal in the Broughton Proceedings fails for the same reasons as his appeal in the Veigel Proceedings fails.
Applications for leave to appeal to this Court were also made by Messrs E Bell and Dee in relation to certain costs orders that the primary judge made. The primary judge found that Messrs E Bell and Dee should, by their pleading, have disclosed prior to the first trial that their case involved the proposition, at least in the alternative, that the Offending Vehicle was one driven by Mr Davis. Mr Owen Bell had told Mr Elwin Bell shortly after the accident occurred that he had seen Mr Davis driving a truck towing a caravan at the time and place that the accident occurred and Mr Owen Bell had subsequently given to Messrs E Bell and Dee's investigators a written statement to that effect. The primary judge held that in these circumstances Messrs E Bell and Dee should pay the costs of Mr Veigel, Mrs Broughton and the Nominal Defendant of the adjournment of the first trial that occurred to enable Mr Davis to be joined as a defendant, and of the costs thrown away as a result of that adjournment.
I consider that leave to appeal should be granted to Messrs E Bell and Dee as, even though the costs order was only for payment of costs of and "thrown away" as a result of the adjournment, rather than the full costs of the trial, there is a substantial amount of money at stake and a point of some significance arises as to the extent of their pleading obligations. However, for reasons that I give below, I consider that the challenge to his Honour's order that Messrs E Bell and Dee should pay these costs fails. Further, a complaint that they also made that the primary judge failed to deal with an alternative submission of Messrs E Bell and Dee that his Honour should make an order that Mr Davis indemnify Messrs E Bell and Dee in relation to these costs was not in my view well-founded.
THE LIABILITY JUDGMENT AT FIRST INSTANCE
The primary judge commenced by referring as follows to the broad allegations made by the plaintiffs:
"Arising from the injuries Mr Veigel and Mrs Broughton received, each of them commenced proceedings for damages. Each of them alleged the driver of the relevant truck had been either:
(a) Mr Jamie Dee; (fourth defendant in Mr Veigel's case and third in Mrs Broughton's case)
(b) Mr Dean Davis; (fifth defendant in Mr Veigel's case and fourth in Mrs Broughton's case)
or
(c) the driver of another vehicle, the identity of which cannot, after due enquiry and search, be established" (Judgment [2]).
This description reflected the summary that Gleeson CJ gave of the effect of this Court's order for retrial at the time that the High Court refused leave to appeal. His Honour had said:
"The only available answers to the question about the identity of the owner/driver of the offending vehicle are (1) Mr Elwin Bell, (2) Mr Jamie Dee, (3) Mr Dean Davis or (4) that the identity of the vehicle cannot, after due search and inquiry, be established. Consistently with the orders made by the Court of Appeal and implicit in order 15 [made by the Court of Appeal] was that Mrs Broughton herself was not at fault" ([2008] HCATrans 303, lines 822-8).
The primary judge then referred as follows to the evidence of various of the witnesses.
At the time of the accident Mr Dayle Lear was driving south with his 11 year old daughter, April, in the car. Mr Lear said that he saw the Offending Vehicle move out in front of Mrs Broughton's vehicle and that a truck (with a caravan in tow), which he saw stopped further along the road soon after the accident, was the Offending Vehicle. That stopped truck with a caravan in tow was undoubtedly that driven by Mr Dee, who said he stopped after the accident upon receiving from Mr Owen Bell a CB radio call indicating that Mr Bell believed (erroneously as it transpired) that one of his cars had been involved in an accident. April Lear gave evidence at the first trial similar to the evidence of her father to which reference is made above. The transcript of that evidence was tendered at the retrial.
His Honour ultimately concluded that Mr and Ms Lear were mistaken in identifying the vehicle that they saw stopped as the Offending Vehicle. After saying that the accident was "a most dramatic event" for Mr and Ms Lear to have witnessed, the primary judge said:
"... Further, given Mr Lear and April Lear saw two vehicles had stopped just after the accident site, I consider they each incorrectly jumped to the conclusion that there was a greater connection of the stopping, with the accident, than there was in fact. That is, they each assumed the driver of the truck towing the caravan they saw, had stopped precisely because he had caused the accident. It is to be recalled they only saw one caravan and truck on the hill" (Judgment [140(d)]).
As noted earlier, Ms Grey gave evidence that she was in Mr Davis' vehicle at the time and place of the accident. Although Ms Grey asserted that Mr Davis had not been at fault, her evidence, if accepted, left no doubt that Mr Davis' vehicle was the Offending Vehicle.
Whilst finding that there were many unsatisfactory aspects of Ms Grey's evidence (Judgment [40]), the primary judge said that his "overall impression of Ms Grey ... was that she was a compelling and truthful witness" (Judgment [43]).
Mr Dee gave evidence denying his involvement in the accident. He said that he did not see the accident occur. Whilst he observed a vehicle that may have been the Offending Vehicle he was unable to say whether Mr Davis was driving it (Judgment [60]). The primary judge's overall assessment of Mr Dee was that he was a person whose evidence should be accepted "on relevant matters" (Judgment [78]).
Mr E Bell was not present when the accident occurred but gave evidence that later on the day of the accident his son Owen rang him and told him that a serious accident had occurred when Mr Davis had been driving his vehicle past the vehicle that Owen was driving, but that the accident had not been Mr Davis' fault. Mr E Bell was aware that Owen gave a statement to the police without telling them of Mr Davis' involvement (Judgment [83]). The primary judge accepted that Mr E Bell learnt of Mr Davis' involvement on the day of the accident, probably from Mr Owen Bell (Judgment [114]).
Mr Owen Bell gave evidence that Mr Davis passed his vehicle driving a truck towing a caravan and that at about that time he saw "[t]hrough his rear vision mirror ... a car go across the road and collide with an oncoming one" (Judgment [93]). Whilst he did not say that Mr Davis caused the accident, his evidence, if accepted, provided clear support for that conclusion. The primary judge concluded that he should treat Mr Owen Bell's evidence "with the utmost reserve" and that he "would not accept it on any significant matter without some corroboration" (Judgment [112]).
Mr Davis gave evidence that he had been at the Nowra show which finished on Saturday 10 February and that at about 7.00 am on 11 February he commenced to drive to Sydney, intending to participate in a show to be held at Five Dock. He said that when nearing Sydney he received information by telephone that the Five Dock show had been cancelled due to rain. He then returned to Nowra to collect his caravan which he had left there, and drove on to Canberra, which was where he had intended to go after the show at Five Dock finished (Judgment [119]). His evidence was thus that he was nowhere near the location of the accident at the time that it occurred.
By way of conclusion in relation to Mr Davis' evidence the primary judge said "[o]verall, I was left with the clear impression Mr Davis, while in some ways apparently quite a straight forward witness, was not to be trusted in areas of importance" (Judgment [124]).
The primary judge expressed his conclusions in relation to the case as a whole as follows:
"146 If I accept Mr Seton's submissions [on behalf of Mr Davis], it would follow that Ms Grey and Messrs Dee and Owen Bell perjured themselves and attempted to pervert the course of justice. If I were to accept Mr Maconachie's submissions [on behalf of Messrs E Bell and Dee], it would follow that Mr Davis perjured himself. Whichever party I find was driving will, potentially, be exposed to a criminal prosecution for (at least) a breach of s 52A(3)(c) Crimes Act , 1900.
147 This is an unusual case. There is strong evidence pointing to the involvement of Mr Dee. And there is strong evidence pointing to the involvement of Mr Davis.
148 Mr Seton began his submission as follows:
'In our submission there are two basic ways to approach the factual dispute. One is to go straight to the kernel of the issue of, do I believe the Bell/Grey evidence or do I believe the Davis evidence. Look at that and then at the same time keep in the background the other evidence of the various eye witnesses. The other way is to start in perhaps a more typical police way, in an investigative way. Go to the eye witnesses who saw the accident, take the information from them and then ... work backwards'.
149 I have considered the case from both perspectives. However, whichever of those routes is taken leads me to find (as I do) that on the balance of probabilities the offending vehicle was driven by Mr Davis, and that his negligent driving caused Mrs Broughton to cross to the other side of the road and collide with the oncoming car of Mr Veigel, causing the injuries to both plaintiffs. These are my reasons:
(a) What Eye Witnesses Said About the Caravan And Truck Driven By The Offending Driver :
There is a consistency of descriptions by eye witnesses of the offending vehicle, and there is some consistency of those descriptions with descriptions of the caravan and truck Mr Davis had at the time.
[His Honour then set out details of descriptions of Mr Davis' truck and caravan and descriptions given by various witnesses of the Offending Vehicle].
(b) Despite variations in recollection, I consider the events would have been dramatic and shocking for witnesses;
(c) Every eye witness shown photographs of Mr Dee's caravan said the caravan depicted in those photographs was not or did not look like the offending caravan;
(d) Despite an apparently thorough investigation by police and insurance investigators, there is no evidence Mr Dee or anyone else changed the number plate on his caravan, or that he passed off to the police or insurance investigators a caravan as the one he towed that day which was other than the one he towed that day;
(e) No caravan identified as having involvement in the accident had a stripe except Mr Davis';
(f) Mr Dee said he saw a little white truck towing a small caravan pass him when he was at the top of the hill; that is consistent with Mr Davis' description of his own truck and caravan;
(g) Although I have expressed some reservations about Mr Dee's evidence, I accept his evidence that he was at the time of the accident ahead of Mr Bell, and that his vehicles were not involved in the accident;
(h) I accept Ms Grey's evidence that Mr Davis was at the scene of the accident and involved in the accident;
(i) I accept Mr E Bell's evidence that his son Owen lived at the time of the accident in the caravan Mr Dee said he was towing that day;
(j) I am satisfied (and so find) Mr Lear and April Lear, probably because they did not stop at the top of the hill, made an error when they:
(i) recorded the number of the caravan they saw parked at the top of the hill;
(ii) described the caravan they saw at the top of the hill as the offending caravan.
Their evidence is the only evidence connecting Mr Dee's vehicle to the accident;
(k) Mr Lear was adamant the number plate on the offending caravan began with an 'O'; Mr Davis' caravan had a registration number beginning with an 'O';
(l) The fact that Mr Owen Bell and Mr Dee (as I find they did) returned to the scene of the accident for a period of at least twenty minutes;
(m) The fact that Mr Owen Bell, the caravan's owner, while at the scene gave his personal details to Senior Constable Milton;
(n) The fact that Mr Owen Bell (as I find he did) owned a green Commodore at the time, and it was travelling behind him on its way from Nowra to Bega, and it was Mr Dee's evidence (which I accept) that Mr Bell told him at the time of the accident he thought his car had just been involved in an accident, so they should stop and go back;
(o) Consistent with the above, but having minimal weight, is Mr Owen Bell's history to police of seeing the offending vehicle being a small truck towing a caravan, and his evidence to me Mr Davis was the driver, and his telling his father at the time of Mr Davis' involvement;
(p) Mr Davis' propensity, which I find he had, to drive his truck on the highway whenever it suited him, and, as I am satisfied occurred when he gave evidence before me, to lie about his propensity to drive without a licence;
(q) The fact that (as I do) I reject Mr Davis' evidence that he was not present at the time and place of the accident;
(r) Mr Davis' motive in lying and fleeing, as I find he did, to escape detection and prosecution for significant offences;
(s) I have considered why Mr Bell gave no details to police about Mr Davis' presence at the accident site. The evidence of Messrs Owen Bell, Elwin Bell, Jamie Dee, Dean Davis and Ms Grey persuades me there is an ethos among sideshow people which involves protecting each other from law enforcement authorities. Further, I have referred to the general difficulty in theorising about why people lie;
(t) In dealing with Ms Grey's evidence I have referred to the fact that she gave evidence which both inculpated and exculpated Mr Davis. Mr Bell's evidence was also both incriminatory and exculpatory of Mr Davis. I have taken account of that;
(u) As I have observed, there was no evidence which corroborated that of Ms Grey as to Mr Davis' overtaking game. But I accept, having seen Mr Davis give evidence, that conduct of that kind on the road is quite within his capacity and inclination. He is a larrikin character, with little regard for rules, and a ready inclination to engage in disinhibited conduct of that type. The probability I think (and I so find) is that he was behind Mr Bell's vehicle, and about three quarters of the way up the hill. He could see he might lose an opportunity to pass if he did not pass soon. I find he failed to check to see what cars were in the overtaking lane, and made an impulsive decision; he put on his indicator, but before ensuring it was safe to do so, just began to move into the adjoining lane;
(v) There is a consistency in the sequence of events, i.e. that Mr Dee, as he and Mr Bell both said, was travelling ahead of Mr Bell. None of the eye witnesses recalls seeing a truck and caravan fitting the description of Mr Dee's rig going up the hill. But a number recall Mr Bell's semi" (Judgment [146] - [149]).
The primary judge's reference to the "overtaking game" in Judgment [149(u)] was to evidence given by Ms Grey that shortly prior to the accident Mr Davis was driving foolishly by "pulling out a little on the opposite side of the road, then pulling back in behind" Mr Owen Bell's semi-trailer (Judgment [36]).
MR DAVIS' CHALLENGES TO THE JUDGMENT ON LIABILITY
On appeal Mr Davis contended that the judgment at first instance "did not do justice to the issues in three major respects (other than adequacy of reasons)", identified as follows:
"1. It proceeded on a false assumption and thus failed to consider an alternative case of an unidentified vehicle being responsible for the accident ( Ainger v Coffs Harbour City Council [2005] NSWCA 424 at [51] per McColl JA);
2. It failed to adequately examine or resolve significant issues going to Ms Grey's credibility. This credibility finding was crucial to his Honour's decision but involved fundamental errors in the reasoning process and demonstrates his Honour's process of fact finding was flawed; and.
3. In rejecting Mr Davis' evidence his Honour either made adverse credit findings based on erroneous factual conclusions, placed undue weight on unspecified consistencies in the descriptions of the vehicles, ignored critical contrary evidence and relied upon matters that demonstrate a flawed reasoning: ( Shimokawa v Lewis [2009] NSWCA 266 at 168 and 181 to 185 per Giles JA)" (Appellant's Outline p 1).
Mr Davis also complained that the primary judge's reasons were deficient. However this complaint did not amount to more than a different way of advancing certain of the submissions that fell under the rubric of the three points just noted.
WHETHER AN UNIDENTIFIED VEHICLE WAS RESPONSIBLE
Mr Davis contended that the primary judge erroneously considered that in light of the manner in which the case had been conducted his only task was to decide whether the Offending Vehicle was Mr Dee's or Mr Davis' vehicle. Mr Davis submitted that this was evident particularly from his Honour's statement that:
"Ultimately there was no significant attempt by any party to show the collision had been caused by an unidentified vehicle, and the parties proceeded on the assumption that it had been caused by either Mr Dee or Mr Davis" (Judgment [12]).
It is clear that at the hearing at first instance the parties focused principally upon a question of whether the accident had been caused by Mr Dee or Mr Davis. This is illustrated by the fact that Mr Seton SC (senior counsel for Mr Davis) in his submissions at the retrial, appeared to treat this question as the "kernel" of the issues between the parties (see the passage in Judgment [148] quoted in [27] above).
It is also clear however that the parties kept open the possibility of the accident having been caused neither by Mr Dee's nor Mr Davis' vehicle, but by a third and unidentified vehicle. The continuing representation at the hearing of the Nominal Defendant was evidence of this.
The primary judge recognised at the conclusion of the hearing that this possibility was still a live one. For example, his Honour referred to the possibility that the accident was caused by an unidentified third vehicle in his summary of the parties' allegations (see Judgment [2] quoted in [15] above) and quoted the passage referring to that possibility from the judgment of Gleeson CJ given when the High Court refused special leave to appeal (Judgment [6] quoting the passage in [16] above).
In these circumstances, it seems that the primary judge's description of the parties having proceeded upon the assumption that the accident had been caused either by Mr Dee or Mr Davis (Judgment [12]) put the position too highly. The parties certainly focused on that matter but it cannot be said that they did so to the exclusion of the third possibility.
The question then arises of whether that over-statement reflects a flawed reasoning process that vitiates the result at which his Honour arrived. For the reasons that follow, I do not consider that it does.
First, the primary judge made it clear that he did not only consider whether Mr Dee or Mr Davis caused the accident but also considered the evidence "in an investigative way" as suggested by Mr Davis, that is, "[g]o to the eye witnesses who saw the accident, take the information from them and then ... work backwards" (Judgment [148] - [149] quoted in [27] above). To my mind this indicates that his Honour did not approach the resolution of the issues with an a priori view that the driver of the Offending Vehicle was either Mr Dee or Mr Davis.
Secondly, the possibility that the Offending Vehicle was a third, unidentified vehicle only existed if the primary judge rejected Ms Grey's evidence that Mr Davis was in the area at the time that the accident occurred. As Mr Seton SC conceded at the hearing of the appeal, there was "never ... a suggestion" that if the primary judge accepted Ms Grey's evidence that Mr Davis was in the area, "that he was not therefore liable. If she was accepted in her assertion that he was there that was the end of the matter" (Appeal Transcript p 5). Consideration of Ms Grey's evidence and its conflict with that of Mr Davis was therefore, as the parties recognised, logically the first matter for his Honour to address. His Honour did this and concluded that Ms Grey's evidence should be accepted. As a result, the third possibility did not exist.
Mr Davis' submissions on the appeal focused on the primary judge's acceptance of Mr Dee's evidence that he did not cause the accident. Mr Davis submitted that if the primary judge erroneously thought his task was simply to decide whether Mr Dee or Mr Davis caused the accident he is likely to have regarded Mr Dee's evidence as supporting that of Ms Grey, and thus supporting the view that Mr Davis was present and at fault. This, Mr Davis submitted, was erroneous because Mr Dee's evidence was simply to the effect that he was not at fault. Mr Dee did not give evidence that Mr Davis (rather than the driver of some other unidentified vehicle) was at fault (see [22] above).
The difficulty with this submission is that Mr Seton SC was not able to point to any part of the judgment that demonstrates that the primary judge did engage in this reasoning process and I have not myself found any support in the judgment for the argument that he did. Rather, with one possible and limited exception, to which I refer below (see [73]), the primary judge treated Mr Dee's evidence as exculpating himself but not inculpating Mr Davis.
Thirdly, I cannot find in the judgment any support for Mr Davis' submission that the primary judge "made findings that appear forced or strained in an apparent attempt to justify one of only two possible outcomes when there was a third possible outcome" (Appellant's Outline pp 1 - 2). The reality is that the primary judge had direct evidence from Ms Grey that indicated that Mr Davis caused the accident. His Honour considered that evidence in a manner that does not appear to me to have been "forced or strained". His Honour's acceptance of Ms Grey's evidence excluded the possibility that the accident was caused by an unidentified vehicle.
MS GREY'S EVIDENCE
Mr Davis challenged the primary judge's acceptance of Ms Grey's evidence upon a number of bases summarised in the Appellant's Outline (p 2). Before addressing these, I point out that, as Mr Davis recognised, he had a substantial hurdle to overcome in order to successfully challenge the primary judge's acceptance of Ms Grey's evidence because that acceptance was credit-based. In the case of such a finding it is necessary for an appellant to demonstrate that the finding is "contrary to incontrovertible facts or uncontested testimony", "glaringly improbable" or "contrary to compelling inferences" ( Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [28] - [29]). As Giles JA noted in Shimokawa v Lewis [2009] NSWCA 266, credit-based findings may be set aside, consistently with Fox v Percy , if the findings are made "for reasons which in whole or in part do not truly go to the reliability or veracity of the relevant evidence, or without taking account of an important consideration or considerations material to evaluation of the credibility or veracity" (at [181]). I would add that, in relation to the first, as well as the second, alternative postulated by Giles JA, for the finding to be vitiated the error that the primary judge made must be an important one which was material to evaluation of the reliability or veracity of the relevant evidence.
Whether Ms Grey had a motive to lie
Mr Davis contended at first instance and on appeal that Ms Grey had a motive to lie in relation to Mr Davis' involvement in the accident. He complained on appeal that the primary judge made no express finding that Ms Grey had a motive to lie and implicitly rejected Mr Davis' submission that she had a strong motive to lie (Appellant's Amended Submissions [109] - [110]). This, he submitted, vitiated the primary judge's acceptance of Ms Grey's evidence.
Mr Davis submitted that Ms Grey had a motive to lie arising out of her losing custody of their son to Mr Davis, wanting their son back and believing that Mr Davis would go to gaol if the Court believed Ms Grey's version of events. He submitted that the fact that she acted upon this motive was evidenced by her not providing information that Mr Davis was involved in the accident until 2008 when she received documents relating to custody proceedings.
I do not consider that there was any error in the way in which the primary judge dealt with this issue. The judge expressly adverted to the question of whether Ms Grey had a motive to lie and described it as "an important issue" (Judgment [46]). The judge implicitly accepted that Ms Grey may have had a motive to lie in that he noted Ms Grey's concession in evidence that Mr Davis' custody application "had shaken and upset her and that she still wanted Jordan [their son] to live with her" (Judgment [46]).
Nevertheless the primary judge took the view that this was not a matter that caused Ms Grey to lie about Mr Davis' involvement. His Honour said:
"It is of course not at all uncommon for men and women to do terrible things to people they purport to love, but when Mr Seton put to Ms Grey that she had been driven by enmity to give evidence against Mr Davis she said, 'I still love the bloke ... I feel sorry for the life he's had ... We have a child together. I could never be back with the man, but I still love him to a certain extent, yes'. That, to me, had the ring of truth" (Judgment [48]).
In my view his Honour's conclusion was not irrational or glaringly improbable. It was open to his Honour to reach it, particularly as it was no doubt informed by his view of the whole of Ms Grey's evidence which, unlike this Court, his Honour had the advantage of hearing. That evidence included the arguably compelling explanation of Ms Grey (who was aged 18 at the date of the accident) of why she did not reveal Mr Davis' involvement in the accident earlier:
"Q. I see. I'm just interested in the phone conversations that you had with people who were asking you about the accident. I'm not interested in phone conversations that you had with people about other topics. Did anybody ring you about the accident and ask you questions about the accident?
A. Yes, a number of people have over the years, yes.
Q. What form did that conversation take? Did they ask you questions and did you give them answers?
A. Yes, they were asking me questions but I knew that until I was subpoenaed that anything I said was of no use anyway, so I've just been trying to avoid it as long as I can hoping that I wouldn't get called and somebody else would tell the truth. And it's put me in a bit of a position, Dean can be very intimidating.
Q. I can understand all of that and I can understand how you feel about it. But I just am interested to know whether you in any of these conversations that you had with people who were asking you about the accident, in any of those conversations did they ask you questions to which you gave answers?
A. They asked me questions but I didn't give answers, no, in any of the phone conversations. Not really, no.
Q. What did you say? Did you say you didn't know?
A. No, I don't remember, I don't know, just leave me alone, I don't know who you are, who are you?
Q. So you never gave any of these people a version of what had happened or you never answered any of their questions as to how the accident happened or anything like--
A. Not on the phone, no.
Q. Not on the phone?
A. No.
Q. Well, did you do so subsequently at a face to face meeting?
A. At, when my son passed away in March, I allowed Dean to take Jordan for two weeks and within the two weeks I had a private investigator come to my house and he had the paperwork for my child, for the, the, all these lies and that that Dean put in to try and get custody of Jordan and he also had other paperwork and he had all these questions about the accident, yes. And he asked me questions and I answered them but I didn't sign them" (Transcript pp 155 - 156; emphasis added).
Furthermore, the primary judge noted that Mr Davis had been physically violent to Ms Grey whilst they had been together (as Mr Davis conceded) and that Mr Davis had a number of convictions for violence towards others. Having observed Mr Davis give evidence his Honour commented that he could "readily imagine someone living with [Mr Davis] finding him extremely intimidating" (Judgment [40(f)(v)]).
In any event the circumstances that Mr Davis contended gave rise to Ms Grey's "motive to lie" about Mr Davis being involved in the accident could equally have given rise to a motive to tell the truth about Mr Davis' involvement. In other words, if Ms Grey and Mr Davis were in fact present at the time and place of the accident, the service of custody documents on Ms Grey could well have provided a reason for her to cease protecting Mr Davis by withholding the truth about the accident. Accordingly, the fact that Ms Grey chose to speak up only at that time does not suggest that she was lying when she did so.
The overtaking game
The primary judge described evidence that Ms Grey gave concerning an "overtaking game" engaged in by Mr Davis as follows:
"There came a point when they were travelling behind Mr Bell's truck, with Mr Bell driving. It was then Mr Davis engaged in the foolish manoeuvre I have referred to earlier, when he acted as though he was about to pass by pulling out a little on the opposite side of the road, then pulling back in behind him. As she put it: 'He was mucking around laughing like he was going to overtake, yes I am, no I'm not, yes I am, no I'm not'. As she said that, she moved her right hand backwards and forwards from left to right" (Judgment [36]).
The primary judge dealt with this evidence as follows:
"It is true no-one other than Ms Grey gave any evidence about Mr Davis' engaging in the overtaking game. But it is possible that from the perspective of a passenger in the vehicle, the manoeuvre may have been far more obvious, especially if (as Ms Grey said occurred) accompanied by sound effects such as loud laughter from Mr Davis. That may be, too, I infer, why she said it would have been obvious to trucks behind when it may not in fact have been obvious. Further, it may have been that from the perspective of other drivers, the manoeuvre would have been seen as no more than an attempt to see what vehicles were coming from the opposite direction. For example, Mrs Broughton acknowledged she would not have recalled such an unremarkable manoeuvre. (This evidence came up after Mr Hodkinson and Mr Lear had given their evidence. Mr Lear was recalled for further cross-examination on that issue after it arose. Mr Hodkinson was not recalled. But it was not submitted the failure to recall him had any significance)" (Judgment [51]).
Mr Davis submitted on appeal that this reasoning was "no more than conjecture and [was] not supported by the evidence" (Appellant's Outline p 2). I do not accept this submission. His Honour's reasoning appears to me to be a perfectly sensible reconciliation of the evidence. It was well open to his Honour to reason as he did.
Whether Mr Davis pulled back in behind the semi-trailer and whether Ms Grey saw the semi-trailer stop
Ms Grey gave evidence that after Mr Davis moved his vehicle into the lane in which Mrs Broughton's vehicle was travelling, Mr Davis moved his vehicle back in behind Mr Owen Bell's semi-trailer and that she subsequently saw the semi-trailer pull over and stop by the side of the road. Other evidence however suggested that Mr Davis' vehicle (assuming that it was the Offending Vehicle) passed the semi-trailer, rather than pulling back in behind it, and continued along the highway. The primary judge referred to various explanations for Ms Grey possibly being mistaken on this issue (Judgment [40(g)]).
The effect of Mr Davis' submissions was that this discrepancy between Ms Grey's evidence and other evidence in the case that was probably correct constituted a flaw in her evidence that the primary judge should have treated as a significant matter necessitating the rejection of Ms Grey's evidence. In my view this is not a realistic approach. It ignores the commonly-encountered fallibility of recollection of even the most honest of witnesses. The likelihood of errors in recollection was particularly great in the case of Ms Grey as she gave her evidence over eight years after the accident occurred and the first account of the accident that she gave to an investigator does not appear to have been given until some seven years after the accident. Moreover, the discrepancy to which Mr Davis pointed did not concern a matter that Ms Grey had any particular reason to remember.
The fact that Ms Grey's description of this detail of the accident may have been inaccurate, when given eight years after the accident occurred, was in my view of little, if any, significance. It was well capable of explanation in one or other of the ways to which the primary judge referred, or simply upon the basis that her recollection was faulty. The fact that Ms Grey may have made a mistake in this respect did not in my view raise a doubt as to her honesty or reliability about a matter that she could have been expected to remember, namely, that she and Mr Davis were present at the time and place of the accident and that Mr Davis moved his vehicle into the lane in which Mrs Broughton's vehicle was travelling.
The following observations that McHugh J made in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 are on point. Their force is not affected by the fact that his Honour dissented in the outcome of that case.
"It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness's evidence by analysing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital - such as the account of a conversation in a fraud case or the description of a person where identity is the issue - discrepancies and inconsistencies in the witness's account may make it impossible to accept that person's evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness's general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment" (at 534).
To like effect are the following oft-quoted observations of McLelland CJ in Equity in Watson v Foxman (1995) 49 NSWLR 315:
" ... human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience" (at 319).
Mr Davis further submitted that, if Mr Davis' vehicle was the Offending Vehicle and Mr Davis' vehicle passed the semi-trailer and drove off, Ms Grey would not have known that the semi-trailer stopped (Appellant's Outline p 2). However Ms Grey was aware that an accident had occurred and it would have been human nature for her, as a passenger in the vehicle that may have caused the accident, to turn around to see what had happened. She could well have seen the semi-trailer slowing down immediately after the accident, and appearing to her to stop, even though, because of the absence of a suitable stopping place, it did not entirely stop until at least 500 metres past the accident site. In any event, the likelihood (to which I have referred) of Ms Grey's recollection being fallible eight years after the accident deprives Mr Davis' point of any significance.
Conclusion in relation to Ms Grey's evidence
The primary judge's acceptance of Ms Grey's evidence was a credit-based finding. The points that Mr Davis made, whether taken individually or in combination, do not establish any basis for appellate intervention in relation to that finding.
MR DAVIS' EVIDENCE
Mr Davis contended that the primary judge erred in finding that Mr Davis was present at the accident scene. However he accepted that if it was proper for the primary judge to conclude that Mr Davis was present there, it followed that he should be found to have been responsible for the accident (see [38] above). Mr Davis' points were in essence as follows.
Mr Davis' alibi
Mr Davis complained about the following finding of the primary judge:
"I infer that once the Five Dock show was in doubt Mr Dean Davis would have been prepared to travel to Bega to see what work he could find, although there was not necessarily space available to him. There was no other near show before the Gundagai show" (Judgment [139(i)]).
His Honour's inference was based upon an erroneous assumption that Mr Davis could have attended both the Bega and Gundagai shows. His Honour assumed that the Bega show was to occur mid-week, before the Gundagai show occurred the following weekend. In fact they were both to occur the following weekend, with the result that if Mr Davis went to the Gundagai show he would be foregoing the opportunity to attend the Bega show.
In my view this error was not of significance. It was made in the course of the primary judge's consideration of whether Mr Davis' alibi should be accepted and his Honour's conclusion on that issue was in fact largely favourable to Mr Davis. As his Honour concluded:
"Overall I do not consider there is compelling evidence to reject the alibi, without regard for other evidence, such as that of Ms Grey" (Judgment [139]).
I do not consider that the error prejudiced Mr Davis in any material respect.
In any event there was no evidence to support Mr Davis' evidence that he had intended prior to the accident to go to the Gundagai, rather than the Bega, show. The primary judge said that Mr L J Davis, Mr Dean Davis' grandfather, had given evidence that Mr Dean Davis had told him that he intended to go to the Gundagai show (Judgment [132]) but his Honour was mistaken about that.
Particular complaints
The primary judge included amongst a list of matters that he said that he found "troubling" about Mr Davis' credit the fact that Mr Davis gave evidence that he had not been at the Bega show in 2006 but changed that evidence when evidence to the contrary was brought to his attention (Judgment [122(b)]).
I agree with Mr Davis that this change of evidence was not of any significance. However it does not appear to me that the primary judge treated it as of such significance that his Honour's error should be regarded as vitiating the finding that Mr Davis was responsible for the accident. In other words, recognition that his Honour made this error does not leave his conclusions "contrary to incontrovertible facts or uncontested testimony", "glaringly improbable" or "contrary to compelling inferences" ( Fox v Percy - see [42] above). It was only a small point amongst many that his Honour took into account in rejecting Mr Davis' evidence, accepting Ms Grey's evidence and resolving the proceedings against Mr Davis (as to the last of which, see the list of reasons quoted at [27] above).
The primary judge included in the same list of matters that "troubled" him, a statement that at the first trial Mr Davis had said that his caravan had three stripes but that at the retrial he had said that it had two (Judgment [122(d)]). I agree with Mr Davis' submission that this statement was not a fair reflection of Mr Davis' evidence. Mr Davis submitted that "[a]s a consequence of his Honour's failure to consider the third possibility, namely an unidentified vehicle ... the issue of credit became very important and arguably was the deciding fact", and thus, "any errors in the intermediate findings of fact which grounded the credit finding in whole or in part, were critical". However, as I concluded above at [34] - [41], the primary judge did not approach the resolution of the issues on the basis that the driver of the Offending Vehicle must have been either Mr Dee or Mr Davis. Again I do not consider this error to be of sufficient significance to vitiate his Honour's conclusion.
Mr Davis then submitted that the primary judge "ignored the fact that Davis' truck was indisputably a pantec and no one (other than [Owen] Bell and Grey) described it as a pantec. Hodkinson and Lear said that it was not a pantec" (Appellant's Outline p 3).
I do not consider that there is any substance in this point. Mr Hodkinson said that the offending truck was not a "pantech" truck because he understood that type of truck to be a "large furniture-moving-type truck" (Transcript p 85). However the photographs in evidence of a truck that Mr Davis said bore a similarity to his own arguably did not fit this description, it being a truck of a smaller variety. Whilst the primary judge did describe the Offending Vehicle as "like a Pantech", his Honour also described it as "flat-fronted, like a small delivery truck" (Judgment [159(ab)]).
There is in my view ample room for different people to have different ideas about what a pantechnicon looks like. What is a "pantec" to some people, may not be to others. This deprives these differences in evidence of any particular significance. Especially is this so when some of the witnesses concerned saw the Offending Vehicle only for a short period of time and then in circumstances where either they had no particular reason to recall what it looked like (when they were driving along the highway prior to the accident) or they were witnessing at close-hand the occurrence of a dramatic and potentially tragic event (recollections being notoriously fallible in such circumstances).
Mr Davis further complained that the primary judge gave as one of 22 reasons for finding that the Offending Vehicle was that of Mr Davis, and that Mr Davis was the Offending Driver (see [27] above), that "Mr Lear was adamant the number plate on the offending caravan began with an 'O' [and] Mr Davis' caravan had a registration number beginning with an 'O'" (Judgment [149(k)]). Mr Davis submitted that this evidence was however of no forensic significance because Mr Lear's observation of the number plate was made, not at the time that Mr Lear saw the Offending Vehicle cross in front of Mrs Broughton's vehicle, but shortly after when he saw a truck (with a caravan in tow) stopped, and concluded (erroneously according to the primary judge) that that was the Offending Vehicle. This may be a proper inference from the evidence that Mr Lear gave (Transcript pp 121- 2) but Mr Lear was not asked directly whether the reason that he thought the number plate started with an "O" was solely related to his observation after the accident. Whether he remembered it or not, it is possible that Mr Lear might have caught a glimpse of the caravan's number plate when the accident occurred and the first number of it might have stuck in his mind.
Nevertheless Mr Lear's observation, whilst not entirely irrelevant, was at most of limited value. However again I do not consider that it assumed sufficient importance in his Honour's reasoning to vitiate his Honour's conclusion.
Mr Davis also submitted that it was inappropriate for the primary judge to include in his list "[t]he fact that Mr Owen Bell and Mr Dee ... returned to the scene of the accident for a period of at least twenty minutes" (Judgment [149(l)]). Mr Davis submitted that although this may have been some evidence suggesting that Mr Dee was not driving the Offending Vehicle, it did not directly inculpate Mr Davis. Whilst this is true because there remained the possibility that neither Mr Dee nor Mr Davis was the driver of the Offending Vehicle, the fact identified by the primary judge was of some, albeit limited, value in narrowing the field of possible offenders and thus increasing the probability of Mr Davis' involvement. Contrary to Mr Davis' submission, I do not regard his Honour's inclusion of this fact in his list of reasons as indicating that he "thought he must choose between Mr Dee and Mr Davis" and therefore ignored the possibility of a third, unidentified vehicle being responsible for the accident (Appellant's Amended Submissions [149(b)]). His Honour did not say that he thought this and I cannot see any other basis for the proposition.
Mr Davis then complained of the primary judge's inclusion in his list of "Mr Davis' motive in lying and fleeing ... to escape detection and prosecution for significant offences" (Judgment [149(r)] quoted in [27] above). Mr Davis criticised this proposition by saying that it was illogical: Mr Davis only had a motive to lie if he was present at the accident (Appellant's Amended Submissions [149(e)]). However, his Honour's list of reasons at Judgment [149] relates to two propositions; first, that Mr Davis was present at the scene of the accident and, secondly, that Mr Davis' negligent driving caused the accident. His Honour's reference to Mr Davis' motive in lying and fleeing is explicable as support for the latter proposition. In any event, it is also an explanation for Mr Davis, despite being involved in the accident, not returning after the accident to render assistance. Seen in this way, there is no basis for the complaint about the inclusion of this reason in his Honour's list.
Mr Davis' demeanour
Mr Davis submitted that the primary judge made no adverse finding about Mr Davis' demeanour and gave no reason why Mr Davis gave his Honour the "clear impression" that he was "not to be trusted in areas of importance" (Appellant's Outline p 3; Judgment [124]).
In my view the primary judge's reference to the "clear impression" that he had was, or at least included to a significant extent, a reference to the views about Mr Davis' demeanour and credibility that his Honour derived from his observation of Mr Davis in the witness box. As said in Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349, "[i]t does not follow that, because the learned judge made no express reference to demeanour and credibility, they played no part in his conclusion" (at 351 per McHugh J).
The primary judge referred to various specific matters in the section of his judgment headed "Mr Davis' credit" and concluded with the word "[o]verall" and the statement of his clear impression that Mr Davis was not to be trusted in areas of importance. His Honour could perhaps have been more explicit in identifying the basis of this impression but there is difficulty in a trial judge adequately describing his or her reasons for reaching particular views as to a witness' credibility and "[t]o require a trial judge to articulate such factors with any degree of particularity is likely to be unhelpful" (see Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 per Basten JA at [6]). Having listed examples of matters that troubled him, I do not consider that the absence of any greater explanation of why his Honour formed the view that Mr Davis was not to be trusted in areas of importance constitutes an error that vitiates his Honour's decision.
The present first instance judgment is a far-cry from that which Ipp JA hypothesised in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186, that is, one in which a "trial judge merely ... set out the evidence adduced by one side, then the evidence adduced by another, and then assert[s] that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other" (at [28]).
Walmsley DCJ's judgment in the present case contained a thorough and well-reasoned exposition of his reasons for reaching his conclusions. His Honour identified many specific matters that he saw as bearing upon the credibility and reliability of the evidence of Mr Davis and of the other witnesses. Having done so, his Honour was entitled to express in general terms the view he had formed as to Mr Davis' credibility, taking into account both the specific matters he mentioned and his general impressions based upon his having observed Mr Davis giving his evidence.
Consistencies in description of vehicles
The primary judge took into account that there was "some consistency" between descriptions given by eye witnesses of the Offending Vehicle and descriptions of the truck and caravan that Mr Davis had at the time (Judgment [149(a)]).
Mr Davis submitted that the "identification (of the Offending Vehicle) evidence was insufficient on its own to identify Mr Davis' truck and caravan ... " (Appellant's Amended Submissions, heading to [141]) and that the primary judge "should have got little, if any, comfort" from such consistencies in description of vehicles as there were (Appellant's Outline p 3). Mr Davis did not deny that there were some common features but submitted that they were limited and would have been common to many trucks and caravans
However as the primary judge used the term "some consistency", his finding was only a limited one. Contrary to Mr Davis' submissions, in my view the consistencies to which his Honour referred sufficiently appeared from the lists that his Honour provided. Further his Honour's reference to consistency of descriptions constituted only one of some 22 reasons given for his conclusions that Mr Davis was the Offending Driver (see [27] above).
In these circumstances it certainly cannot be said, as inferred by Mr Davis' submission (see [81] above), that the primary judge regarded the existence of some consistencies of description as "sufficient on its own" to identify Mr Davis' vehicle as the Offending Vehicle. It is apparent that his Honour gave some significance to the point. However, he did not in my view give it more significance than was warranted.
The Lears' evidence
Mr Davis submitted that the primary judge failed to answer the following two significant questions that arose in relation to the Lears' evidence:
"i) Why they were so adamant the caravan at the top of the hill was not that depicted in the photograph [of the truck/caravan combination that Mr Dee was purportedly driving on the day of the accident] taken at Mt Isa. [This evidence having been relied on by Mr Davis at first instance to found a submission that Mr Dee gave false evidence about what truck/caravan combination he was driving on that day].
ii) Whether they had made an erroneous assumption that the caravan at the top of the hill was the offending vehicle" (Appellant's Outline p 3).
I do not agree with this criticism. In my view the primary judge dealt rationally and adequately with the Lears' evidence (see [19] above). As his Honour pointed out, the situation was one in which there was a significant risk of the Lears making the mistake that the primary judge found that they had made. They had just witnessed at close-hand a dramatic, and potentially tragic, event involving a truck towing a caravan and two other vehicles. Shortly after, they saw a truck (with a caravan in tow) stopped further down the road in a position that was consistent with it having stopped as a result of the accident having occurred. The conclusion that the Offending Vehicle was the same as that which, soon after, they saw stopped on the side of the road was an easy one for them incorrectly to make.
Conclusion in relation to Mr Davis' evidence
The points that Mr Davis made did not in my view, when taken individually or in combination, establish any basis for appellate intervention in accordance with the principles stated in Fox v Percy (see [42] above).
SUFFICIENCY OF REASONS FOR JUDGMENT
The complaints made under this heading replicate in a different form various of the points with which I have dealt above. As a result nothing further needs to be said about them.
CHALLENGE TO COSTS ORDERS
By judgment dated 18 September 2009, the primary judge made the following orders in the Veigel Proceedings:
"3. [Mr Davis] to pay the costs of [Mr Veigel, Mrs Broughton, the Nominal Defendant, Mr E Bell and Mr Dee], save for the costs of and thrown away by the adjournment of the first trial, from the time of his joinder, on an indemnity basis, and for the period prior to his joinder, on an ordinary basis.
4. [Messrs E Bell and Dee] are to pay the costs of [Mr Veigel, Mrs Broughton and the Nominal Defendant] of the adjournment of the first trial, and the costs thrown away by that adjournment" (Judgment p 26).
Similar orders were made in the Broughton Proceedings.
Messrs E Bell and Dee sought leave to appeal against these orders, contending that Mr Davis, and not them, should have been ordered to pay the costs of the adjournment of the first trial and the costs thrown away as a result of that adjournment.
The primary judge gave the following reasons for making the orders in question:
"The application is made on the basis that the adjournment of the first trial so Mr Davis could be joined was at least partially contributed to by the failure of Messrs Dee and Bell to comply with the rules of pleading. The predecessor to UCPR Part 14 Rule 14(2)(a) requires a party to plead specifically a matter which if not pleaded specifically may take the opposite party by surprise. It would be an understatement to say the eventual notification of Mr Davis' involvement took the plaintiffs and the Nominal Defendant by surprise. Further, the allegation in Mr Owen Bell's evidence of Mr Davis' involvement if found correct (as in fact occurred) made the plaintiffs' then cases not maintainable: Part 14 Rule 14(2)(b) and raised a matter of fact not arising out of the preceding pleadings: Part 14 Rule 14(2)(c). Mr Maconachie QC submitted that his clients had only ever said, in effect, 'it was not me'. However, I consider that is less than the rule required his clients to do. Mr Maconachie drew my attention to the fact that Mr Dee had said he had had nothing to do with the failure to disclose, Mr Elwin Bell had said 'something to the same effect' and Mr Owen Bell had not been a party: it was only when he was giving evidence, when evidence of Mr Davis' involvement had emerged. But Mr Elwin Bell, as I found, had known of Mr Davis' involvement through Mr Owen Bell since the day of the accident. Further, the insurer for Messrs Dee and Bell had known of Mr Davis' involvement since 31 January 2004. Messrs Dee and Bells' behaviour as parties in the litigation I think justifies my making the order the Nominal Defendant asks for. It is true that in an indirect sense, Mr Davis is responsible for the adjournment. Had he stopped after the accident and confessed his involvement, he would have been joined and others would not have been: see [13] above. However had Messrs Dee and [Bell] disclosed Mr Davis' part through their pleading, the need for the adjournment would have been avoided. Messrs Dee, Bell and Davis all had a part to play in the adjournment. But I see the direct cause of that flowing from the conduct of Messrs Dee and Bell" (Judgment, 18 September 2009, [23]).
The Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 ("UCPR") were not in force when the first trial was adjourned. However the parties to the present application for leave to appeal proceeded upon the basis that the provision corresponding to UCPR r 14.14 that was then in force (District Court Rules, Part 9, r 9) did not differ from UCPR r 14.14 in any presently material respect. UCPR r 14.14 is in the following terms:
" 14.14 General rule as to matters to be pleaded specifically
(cf SCR Part 15, rule 13; DCR Part 9, rule 9)
(1) In a statement of claim, the plaintiff must plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise.
(2) In a defence or subsequent pleading, a party must plead specifically any matter:
(a) that, if not pleaded specifically, may take the opposite party by surprise, or
(b) that the party alleges makes any claim, defence or other case of the opposite party not maintainable, or
(c) that raises matters of fact not arising out of the preceding pleading.
(3) Matters which must be pleaded pursuant to subrule (2) include (but are not limited to) fraud, performance, release, statute of limitation, extinction of right or title, voluntary assumption of risk, causation of accident by unknown and undiscoverable mechanical defect and facts showing illegality".
At the date that the trial was adjourned, the District Court Act 1973 did not contain any provision corresponding to the subsequently enacted provision of s 56(3) Civil Procedure Act 2005 placing parties to civil proceedings under a duty to assist the Court to further the overriding purpose of facilitating "the just, quick and cheap resolution of the real issues in the ... proceedings", notwithstanding that the Supreme Court Rules 1970 , Part 1, r 3 contained, at the date of the adjournment, a reference to this overriding purpose.
The submissions of Messrs E Bell and Dee in support of their application for leave to appeal were to the following effect:
(a) The primary judge construed UCPR r 14.14(2)(a) in such a way as to put it in direct conflict with UCPR r 14.7, which requires a party's pleading to "contain only a summary of the material facts on which the party relies, and not the evidence by which those facts are to proved" (District Court Rules, Part 9, r 6 was the comparable provision in force at the time of the adjournment). The primary judge's finding was "in essence" that Messrs E Bell and Dee were in breach of UCPR r 14.14(2) "by failing to plead the evidence of a non-party witness, Owen Bell" (Summary of Argument [9] - [10]).
(b) UCPR r 14.14(2)(b) is concerned only with "legal barriers to success" and UCPR r 14.14(2)(c) is concerned only with "material facts" in the same sense as that expression is used in UCPR r 14.7, that is, those facts essential to the cause of action or defence in question (Summary of Argument [10]).
(c) Cases rejecting the ambush theory of litigation (for example, White v Overland [2001] FCA 1333 at [4]; Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 at [30] and Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80 at [59]) did not go so far as to require, contrary to UCPR r 14.7, that a party's evidence must be pleaded (Summary of Argument [18]).
(d) If Messrs E Bell and Dee had pleaded that Mr Davis was present at the scene of the accident, Mr Davis would have been likely to deny that he was present and to prepare an alibi, possibly supported by other witnesses. This would have raised the prospect of Messrs E Bell and Dee's principal witness being rejected, with the result in a practical sense of bolstering the case against them (Summary of Argument [26]).
(e) "If the presence of Davis had to be pleaded, Bell and Dee were in a real and practical sense irrevocably embracing the version given by a witness, pinning their whole case upon its veracity" (Summary of Argument [28]).
(f) If Messrs E Bell and Dee had pleaded that Mr Davis was involved they would have been running the risk of being ordered to pay the costs caused by Mr Davis' joinder (Summary of Argument [29]).
(g) The adversarial system entitles parties "to 'keep their powder dry' if there is a possibility that early deployment of how their case will be proved may lead to a party being 'outflanked' by deception, suborning of witnesses or the like" (Summary of Argument [33]).
(h) With "proper diligence", the other parties to the proceedings ought to have known, and (it may be inferred) did know, that Mr Davis was involved in the accident (Appeal Transcript p 63).
As to the point referred to in (h) above, the primary judge cannot in my view be criticised for not taking the point into account in exercising his discretion as it was not submitted to him that he should. In any event, even if the other parties may have had reason to suspect the involvement of Mr Davis, they were not aware of the evidence that Mr Owen Bell or Ms Grey could and did give. In these circumstances, the point must fail and I need say no more about it.
I do not accept the submission of Messrs E Bell and Dee that the primary judge's construction of UCPR r 14.14(2)(a) conflicted with UCPR r 14.7. The former is concerned with "any matter" that may take the opposite party by surprise. This is a broader concept than "the material facts on which the party relies" to which UCPR r 14.7 refers. The decision of this Court in Kirby v Sanderson Motors Pty Ltd [2002] NSWCA 44; (2002) 54 NSWLR 135 demonstrates that rules like UCPR r 14.14(2)(a) are not confined in their operation to requiring the pleading of facts that are in a strict sense material to the cause of action or defence in question. The Court in that case contemplated that in some circumstances, in order to avoid surprise, it may be necessary for a plaintiff in his pleading to "explicitly relate the facts it pleads to specified causes of action" (at [21]).
The text of UCPR r 14.14(2)(a) does not warrant the narrow construction for which Messrs E Bell and Dee contend. On the contrary, the reference to avoidance of surprise suggests an intent to render the "ambush theory of litigation", for which Messrs E Bell and Dee effectively contend, inapplicable. The contention of Messrs E Bell and Dee that they were entitled to "keep their powder dry" is quite contrary to the tenor of UCPR r 14.14(2)(a). As the words used in that subrule are well capable of preventing the ambush theory of litigation from applying to a case of the present type, effect can and should be given to the evident purpose of the subrule.
The vice in Messrs E Bell and Dee's construction of the subrule is apparent when the construction is considered in the context of the present case. As Messrs E Bell and Dee conceded at the appeal hearing, it was almost inevitable that once Mr Owen Bell gave evidence of Mr Davis' presence at the scene of the accident that the hearing would have to be adjourned to enable the plaintiffs' to join Mr Davis as a defendant, the adjournment inferentially being at significant cost to all involved in the litigation.
In my view the failure of Messrs E Bell and Dee to plead, at least in the alternative, that Mr Davis was involved in the accident when they proposed to call a witness whose evidence would inevitably indicate that he was involved, conflicted with the proper administration of justice and with the terms of UCPR r 14.14(2)(a). If s 56(3) Civil Procedure Act had then been in force it would also have conflicted with the provisions of that subsection.
I do not accept Messrs E Bell and Dee's argument that they would have been placed in an invidious position if they had pleaded Mr Davis' involvement in the accident. If they had real concerns about pleading this they could readily have rendered the subrule inapplicable by corresponding with the other parties to inform them of the evidence that Mr Owen Bell was expected to give. If they had done this, there would have been no prospect of "surprise" to the other parties and therefore no requirement imposed by the subrule to plead Mr Davis' involvement. If they chose not to do this, and had to plead that involvement, they would not have had by their pleading to commit themselves to a case, to the exclusion of others, that Mr Davis caused the accident. This involvement could have been alleged in the alternative to an allegation that the accident was caused by an unidentified third vehicle and/or to a simple denial that Mr Dee caused the accident.
Messrs E Bell and Dee's obligation to plead arose from the fact that they proposed to call evidence that would indicate not simply that the vehicle that Mr Dee was driving was not the Offending Vehicle but also that Mr Davis' vehicle was the Offending Vehicle. No doubt the prospects of their defence succeeding were improved by adducing more evidence than Mr Dee's simple denial, that is, by calling evidence that identified an alternative suspect.
It follows that I agree with the primary judge's conclusion that the orders that he made were justified by Messrs E Bell and Dee's failure to comply with UCPR r 14.14(2)(a). The primary judge also founded his conclusion on UCPR r 14.14(2)(b) and (c) but I would not regard those subrules as supporting his conclusion as I agree with the submissions made by Messrs E Bell and Dee as to their limited ambit (see [93(b)] above).
For the reasons I have given Messrs E Bell and Dee have not demonstrated that his Honour made any error that vitiates his decision to order Messrs E Bell and Dee, rather than Mr Davis, to pay the other parties' costs of the adjournment and costs thrown away as a result of the adjournment.
Messrs E Bell and Dee made an alternative submission that the primary judge had not dealt with a submission that they made at first instance that Mr Davis should be ordered to indemnify them in respect of the relevant costs (Transcript, 23 July 2009, p 7).
His Honour did not expressly deal with this submission but in my view he impliedly did so. I consider that that was sufficient as his Honour's reasons for implicitly rejecting the submission are evident from the reasons he gave for making the costs order against Messrs E Bell and Dee.
His Honour had to decide whether to order Messrs E Bell and Dee or Mr Davis to pay the costs of and thrown away by the adjournment, or whether to order that each pay a proportion of those costs. His Honour's decision that the costs should be paid wholly by Messrs E Bell and Dee implicitly involved the view that their responsibility for what occurred was so great as to completely outweigh any indirect responsibility that Mr Davis had (see [90] above). As it is not suggested that this view was influenced by any greater ability of Messrs E Bell and Dee than Mr Davis to meet a costs order in favour of the other parties, I consider that his Honour was implicitly concluding that Messrs E Bell and Dee should not be relieved of any ultimate responsibility for the costs by obtaining an order for indemnification or contribution by Mr Davis.
Messrs E Bell and Dee submitted that if this was the correct view of what the primary judge concluded, his Honour erred in not undertaking a comparative analysis of the culpability of Messrs E Bell and Dee on the one hand and Mr Davis on the other. However, to my mind, his Honour did this in the manner described in [105] above.
As the primary judge did deal with the submission made at first instance and this aspect of his Honour's decision is not challenged upon any basis additional to those that I have discussed, Messrs E Bell and Dee's alternative submission on appeal fails.
ORDERS
For the reasons that I have given, I propose the following orders:
(1) Appeal of Mr Davis in the proceedings brought by Mr Veigel dismissed with costs;
(2) Leave to appeal granted to Mr Davis in the proceedings brought by Mrs Broughton;
(3) Appeal of Mr Davis in the proceedings brought by Mrs Broughton dismissed with costs;
(4) Leave granted to Messrs E Bell and Dee to appeal in relation to costs orders made on 18 September 2009 in the proceedings brought by Mr Veigel and Mrs Broughton;
(5) Appeal of Messrs E Bell and Dee for which leave was granted in Order 4 above dismissed with costs.
YOUNG JA : I agree with Macfarlan JA.
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