Fardi v Loveday
[2010] SADC 25
•9 March 2010
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
FARDI v LOVEDAY
[2010] SADC 25
Judgment of His Honour Judge Nicholson
9 March 2010
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION - GENERALLY
In 2000, the plaintiff (42 years old at the trial) was involved in a slow speed, low impact motor vehicle accident. The defendant collided with the plaintiff's vehicle at traffic lights and admitted being at fault. Plaintiff claimed to have suffered physical and psychiatric injuries as a result of the accident which disabled him, inter alia, from working in his pre-accident occupation of self employed taxi driver. Plaintiff's evidence not accepted; no loss proved to have been caused by the accident. HELD: claim dismissed.
EVIDENCE
Comparison of handwriting.
Wrongs Act 1936 s35A; Wrongs (Liability and Damages for Personal Injury) Amendment Act 2002 s4, s6, s7; Limitation of Actions Act 1936 s48; Evidence Act 1929 (SA) s30, s45C, s59j; Evidence Act 1906 (WA) s31, s73A, referred to.
Grayden v R (1989) WAR 208; R v Mazzone (1985) 43 SASR 330; Adami v R (1959) 108 CLR 605; Daley v R [1979] TasSR 75; R v Leroy [1984] 2 NSWLR 441, considered.
FARDI v LOVEDAY
[2010] SADC 25Introduction
The plaintiff, Mustafa Fardi, claims damages against the defendant for personal injuries and consequential financial loss said to have been caused by a motor vehicle collision at the intersection of Grand Junction Road and Bower Road, Ethelton on 13 July 2000. Insofar as any assessment of quantum would be concerned, the action is subject to the constraints imposed by s35A of the Wrongs Act 1936. Section 35A was repealed by s4 of the Wrongs (Liability and Damages for Personal Injury) Amendment Act 2002. However, s35A applies to this action because the accident which gave rise to the claim occurred before the commencement of the new provisions contained in the amending legislation.[1] The defendant has admitted in the defence that, after the plaintiff brought his vehicle to a halt at traffic lights, she caused her vehicle to hit the rear of the plaintiff’s vehicle and was negligent in so doing. I will say more about the nature of the collision when I come to review the evidence of the plaintiff and the defendant on this issue. However, whilst liability is not in issue,[2] causation of loss and the quantum of any loss proved to have been caused came under strong challenge by the defendant.
[1] Sections 6 and 7 of the Wrongs (Liability and Damages for Personal Injury) Amendment Act 2002.
[2] I use the term “liability” in this context to refer to the question of whether or not the defendant breached her duty of care. Damage is the gist of the action in negligence and, strictly speaking, if no loss is proved to have been caused, no liability arises.
The plaintiff’s summons and statement of claim was filed on 25 November 2003, little over 3 years and 4 months after the date of the accident. One of the orders sought in the statement of claim is an extension of time, pursuant to s48 of the Limitation of Actions Act 1936, within which to institute the action. I deal with this application for an extension of time later in this judgment.
Contentions
The plaintiff alleges in the statement of claim that, as a result of the accident, he suffered soft tissue injuries to his cervical, thoracic and lumbar spine and to his right shoulder together with a consequential major depressive illness with symptoms of poor concentration, memory loss, lethargy, weight increase, tearfulness, social withdrawal and disturbed sleep.
It is further alleged that as a result the plaintiff, inter alia, has been precluded from continuing in his pre-accident occupation as a self employed taxi driver and has suffered a permanent partial incapacity for work.
The defendant contends that the plaintiff’s claimed physical injuries do not exist or, in the alternative, were of a very mild nature and resolved soon after – within days – of the accident and that the claimed psychiatric condition either does not exist or to the extent that it does, it predates the collision and/or arises from other causes. It became plain during the trial that the defendant’s case was to the effect that the plaintiff had a history of being dishonest and deceptive in his dealings with government departments, his own doctors and with financial organisations and that the court would find itself in a position where it was unable to accept any of the plaintiff’s evidence insofar as it related to an issue of significance in the trial.
Section 35A(1)(a) of the Wrongs Act provides as follows:
Notwithstanding any other law, where damages are to be assessed for or in respect of an injury arising from a motor accident, the following provisions apply:
(a) No damages shall be awarded for non-economic loss unless –
(i)the injured person’s ability to lead a normal life was significantly impaired by the injury for a period of at least 7 days; or
(ii)the injured person has reasonably incurred medical expenses of at least the prescribed minimum in connection with the injury;
Bearing in mind the provisions of s35A, the matters falling for consideration include the following:
(i)After the accident, did the plaintiff suffer any or all of neck, back and shoulder pain and depression?
(ii)If so, was any of this caused by the accident and/or an exacerbation of a pre-existing condition or conditions which exacerbation was caused by the accident?
(iii)Did any caused physical or psychiatric conditions (or caused exacerbation thereof) constitute an injury as a result of which the plaintiff’s ability to lead a normal life was significantly impaired for at least 7 days or an injury in connection with which the plaintiff reasonably incurred medical expenses of at least the minimum amount as prescribed pursuant to s35A(1)(a)(ii).
If the matters set out in subparagraphs (i), (ii) and (iii) are established by the plaintiff, he would be entitled to an award of non-economic loss assessed in accordance with the scale provided for by s35A(1)(b). In addition, if (i) and (ii) are established, the plaintiff would be entitled to proved financial losses including an award for loss of earning capacity. However, in this latter respect, he would not be entitled to anything in respect of the first week of any proved loss of earning capacity and the component of his financial losses representing loss of future earning capacity cannot exceed the prescribed maximum.[3] Any lump sum to be awarded for loss of future earning capacity is to be calculated in accordance with s35A(1)(e).
[3] Section 35A(1)(d) and (da).
The plaintiff’s case depends, in large part, on the extent to which I am able to accept him as a reliable historian with respect to the essential matters within his knowledge on which his claim relies.
Some General Observations
The plaintiff was unrepresented throughout the trial. During much of the interlocutory stage, the plaintiff had been represented or advised by at least three firms of solicitors. However, for the last 15 months or so prior to the commencement of the trial, the plaintiff was unrepresented. He was either unwilling or unable to obtain representation for the conduct of the trial. The plaintiff’s case was challenged at every level by the defendant. To make things more difficult, the plaintiff is Kurdish and came to Australia as a refugee only in 1995. English is not his first language and in presenting his case, both at the bar table and whilst giving evidence, the plaintiff had to be assisted throughout by various Kurdish interpreters. The trial was inordinately long. Significant time was devoted to the interpretation process and in attempting to ensure that the plaintiff understood sufficiently the court procedures and the various procedural options available to him during the trial.
The conduct of the trial was always going to be difficult for a person not legally trained and particularly so for the plaintiff given his background and language difficulties. I have taken these matters into account when assessing the plaintiff’s presentation as a witness and generally with respect to his conduct throughout the trial.
At the commencement of the trial and from time to time throughout the trial, I invited an application from the plaintiff for an adjournment to enable him to attempt to obtain legal representation. No application was made. The plaintiff indicated on a number of occasions that he had been unable to obtain legal representation for the trial and that, given the length of time the matter had been in progress, he was anxious for the trial to proceed and the matter to be completed.
The plaintiff gave evidence and the court also heard evidence in the plaintiff’s case from his brother Mr Khosrow Fardi, his brother-in-law Mr Dalshad Zhalaye, his father-in-law Mr Mahmoud Zhalaye, his wife Mrs Nohshah Fardi, General Practitioners Dr Gould-Hurst, Dr Dounas and Dr Michael Lee, a psychiatrist Dr Harvey, an orthopaedic surgeon Mr Munyard, one of the lawyers who previously represented the plaintiff Mr William Botten, and a finance broker Mr Joe Mastrantuone. The defendant also called various witnesses including Drs Schultz and Herbert, to some of whom I will need to refer later in this judgment.
I will start with a brief summary of the effect of the plaintiff’s evidence and of my general impressions of the plaintiff. I then will need to deal at some length with a number of discreet aspects of the plaintiff’s evidence and attacks directed at the plaintiff by the defendant. My findings in relation to the plaintiff’s evidence will be significant in informing the extent to which I am able to accept the opinions of the doctors called on his behalf.
The plaintiff was in the witness box for a number of days and I had ample opportunity to observe him as he gave his evidence. I accept that demeanour can be a most unreliable guide when attempting to assess the accuracy and reliability of evidence given by a witness. Difficulties in this respect are only exacerbated when evidence is given through an interpreter. I also accept that the plaintiff may have been suffering from depression for which he was on medication at the time he gave his evidence. I have taken these considerations into account when forming my views as to whether or not to accept particular aspects of the evidence given by the plaintiff. Nevertheless, I record at the outset that I have found the plaintiff to have been an unsatisfactory witness. I formed the view during and after hearing his evidence that I was able to accept very little that he put to me that was not corroborated by other acceptable and independent evidence.
Evidence of the Plaintiff
The plaintiff was born in Kurdistan in January 1966. He studied dentistry for three years at Tehran University in Iran. He did not complete the six years needed to qualify. After about three years, his studies were interrupted when he came to the attention of the Iranian government because he and his brothers had been working with the Kurdish Democratic Party. He left Tehran and went to the border between Iran and Iraq where he worked as a dentist and with general practitioners as part of a Medicins Sans Frontiers team working with the Kurdish Democratic Party in that area. After that, he fled to Turkey and from about 1993 until coming to Australia in or about 1995 he was a refugee in Turkey. The plaintiff was able to take his wife and first born child with him to Turkey. The plaintiff and his wife had a second child, born in Turkey and now have a third child, born in Australia. As at the date of trial, his three children were 15, 14 and 5 years old. From Turkey, the plaintiff and his family applied for and were granted permission to come to Australia as refugees. One of the plaintiff’s younger brothers, Khosrow Fardi, and their mother also made their way to Australia. Khosrow Fardi arrived approximately one month before the plaintiff.
The plaintiff was provided with government housing in Adelaide and received the Newstart allowance. He did some cleaning work and studied the English language. After about three months, he moved to a privately rented home unit. Until 1999, the plaintiff and his family survived financially on a combination of Centrelink benefits and some casual unskilled work performed by the plaintiff. He did cleaning work, he worked for a short period of time for a company that made after production car wheels and, from time to time, he assisted other Kurdish refugees in their dealings with Centrelink for which he was paid on an hourly basis by Centrelink. He spent some time in the Riverland assisting Kurdish refugees there in their dealings with Centrelink. Nevertheless, for most of the time prior to the accident in July 2000 and notwithstanding that the plaintiff started driving a taxi in 1999, he relied essentially on Centrelink payments for his income.
In 1999, the plaintiff obtained a taxi driving licence. His brother also obtained a licence. The plaintiff bought a car at a cost of $24,888 which he intended to use as a taxi cab. He made arrangements to lease a taxi plate from one of the taxi companies in Adelaide. In order to operate the taxi business, the plaintiff incurred various recurrent expenses, including repayments of the money borrowed to assist with the car purchase and taxi plate lease payments.
The initial arrangement was that the plaintiff and his brother each would drive either the day or the night shift during each 24 hour period. The business was, in effect, the plaintiff’s and he met all the expenses from taxi fares received. His brother was entitled to retain 50% of the fares that he brought in. The taxi business was operating for only approximately 9 months before the collision, the subject of these proceedings, occurred. During that 9 months or so, the plaintiff made little net profit. There were weeks when he did not make sufficient money to cover his expenses. The plaintiff put this down to his inexperience and need to learn the job. The first tax return made available to the court (P6) is that for the financial year ending 30 June 2000. The accident occurred on 13 July 2000 and therefore this tax return should disclose income earned by the plaintiff from his taxi business for 6 of the 9 months or so that the business had been operating. According to the tax return, the plaintiff received $6,150 by way of Centrelink payments and $3,211 net income after expenses from conducting the taxi business.[4]
[4] The tax return declares total business income of $28,565 and total expenses of $25,354.
The plaintiff described the accident. He said that he was sitting at the traffic light waiting for it to turn green when the defendant hit the rear of his taxi. He described how his head hit the steering wheel. He was wearing a seatbelt. He did not see anything; all he felt was the car move at the time of the collision. I asked him if he could describe further how the collision felt to him. He said this (T49):
When you’re at the car, when you’re coming out just I was normal, a little bit, a bit dizzy, but was very normal, I said “No problem” and I told her just –
I then followed up with another question to the effect that when he felt the car behind him hit his car, how hard did it feel, and this time he answered (T50):
It was very hard. I said maybe a semitrailer or something. I didn’t know, just normal car, because I was looking at nothing to the back, I was looking forward and then someone hit the car ….
The plaintiff said that he was able to drive the car after the accident and he took it to a crash repair business for it to be assessed. The plaintiff observed the boot to have been damaged and the middle of the rear bumper bar to have been damaged. The bumper bar was made of plastic or rubber and there was a break, rather than a dent, in it. The plaintiff said that the defendant’s car received a “broken bumper bar” and damage to the bonnet. He also saw what he thought was water leaking from the radiator. The damage to the bonnet was a dent, the steel was not broken. It was the plaintiff’s opinion that she was unable to drive the car away because the radiator was leaking.
I interrupt this summary of the plaintiff’s evidence at this point to give the defendant’s description of the accident. Llara Loveday was 38 at the time of the trial and is a disability worker. She gave her evidence in a straightforward manner, she was essentially disinterested in the outcome of the trial and I had no reason to think that she was not doing her best to assist the court. Of course, the accident occurred some 8 years before trial and the passage of time alone would have an effect on the accuracy of recollection by both plaintiff and defendant. She said that she was wanting to turn left and was in, what she described as, a slip lane at the t-junction. She stopped her car behind a stationery vehicle that was immediately in front in the slip lane. She then moved off and collided with the rear of that vehicle. She found it difficult to describe the degree of force but said “it didn’t feel like a huge jolt”. She too was wearing a seatbelt but received no bruising or pain in the area of the seatbelt or anywhere else. She was upset and crying; it was her first car accident. She exchanged particulars with the plaintiff and rang her manager at work who told her to get a tow truck and have her car towed away. She had one or two hours off work as a result of the accident. She said that while both cars were stopped at the left turn, there was nothing unusual about the situation. She stopped at a distance behind the plaintiff’s car that was “not too close and not too far”. In cross-examination, she said that she either slowed down or stopped but at some point accelerated thinking that the plaintiff was moving off to turn left and that was when the impact occurred.
Both parties have described a slow speed, low impact, relatively minor rear end collision. I will come back to this evidence concerning the collision later in these reasons. I return to my summary of the plaintiff’s evidence.
According to the plaintiff, he was very healthy and had not been sick, at all, throughout his life prior to the accident. He played sport. He was able to play with his children. Every weekend, he went out with his children to the park. He liked to help other people, particularly new Kurdish arrivals to the country. He assisted them to find a house or furniture and generally settle in. According to the plaintiff, his life changed significantly after the accident. He lost many friends because he was unable to visit them. He started to get angry and depressed and he hit his children and shouted at his wife.
He said that he became sick during the night after the accident. He said his body was shaking, he had a headache and pain in his lower back, his neck and his right shoulder. He started to feel this pain during the next day after the accident. He had not felt any pain at the time he drove home from the crash repair workshop on the day of the accident. He said that his wife took him to a day/night surgery the day after the accident. I interpolate here that according to Dr Dounas, he first presented to her at the day/night surgery on 17 July 2000, some four days after the accident. He said that he told the doctor about the pain he was feeling and she gave him some tablets. After that, whilst at home, the pain became much worse and he had some physiotherapy and also an injection in his shoulder at the Royal Adelaide Hospital.
The taxi was repaired and back in service after about a week. However, the plaintiff could not operate as a taxi driver. He said he was too tired and was taking Panadeine Forte. He continued to see a general practitioner every 2 to 3 weeks for one year or so after the accident and then was referred to Dr Harvey, a psychiatrist.
When asked how long the pain in his neck continued, the plaintiff said that he still had the pain. He said that the pain to his neck started off at a significant level and then became worse and worse each day. He still takes Panamax four hourly and also a drug that Dr Harvey, the psychiatrist, prescribed. The plaintiff said that he uses a TENS machine at home every 2 hours on his neck and lower back. He has been using this from the beginning. However, the pain in his shoulder has improved. He still has pain in the lower back but the worst pain is in his neck. According to the plaintiff, he remains restricted as to the gardening he can do. He cannot pick up heavy things. He used to be able to pick up 50 or 60 kilograms but cannot do that anymore.
The plaintiff, initially in his evidence, said that after the accident he was unable to drive as a taxi driver but he did drive the family around from time to time. In the early stages, his brother drove the taxi as before and the plaintiff arranged for other drivers to do his shift when they were available. He became tired, depressed and angry and he experienced loss of concentration, sleeping difficulties and shortness of temper.
The plaintiff was repeatedly certified as unfit to work and placed on Centrelink benefits. After the accident, his family survived on Centrelink and financial assistance from other members of his family. Nevertheless, he continued to operate the taxi business. However, he had a falling out of some sort with his brother in 2003 and he experienced difficulties in finding drivers to do the various shifts with the taxi and so, in May of 2004, he ceased operating the taxi business. By then, he had paid off the loan taken out to purchase the vehicle and he retained it for use as a family car.
Later in his evidence in chief he said that, after the accident, he sometimes did a little bit of taxi driving:
Depending when I couldn’t find a taxi driver, I have to pay lease, taxi plate, insurance, service, even base fees with the yellow cab. Sometimes I try to do a little bit of work, not even part time, maybe once a week, twice a week when I couldn’t find – much pressure to put in bill payments, I use it. (T89)
The plaintiff was pressed on a number of occasions, whilst under cross-examination, to clarify how often he drove the taxi after the accident. He gave vague and general answers. The issue is important. The defence case is that, after the accident, the plaintiff was capable of driving the taxi for a living on a regular basis. There is private investigator film which shows the plaintiff driving his taxi on various occasions and also shows the plaintiff engaging in other physical activities. I will come to this film later in these reasons. However, I was not able to obtain, from the plaintiff’s evidence given in court, a clear understanding of how regularly the plaintiff would admit to having driven his taxi.
The plaintiff said that he had not sought or obtained any other paid work since the accident. He has not looked for this work because of the ongoing pain in his neck, in particular, and in his back and because of his depression. His relationship with his wife and children has deteriorated significantly and the plaintiff complained of a 60% to 70% reduction in his sex life.
The evidence of the plaintiff’s wife, Nohshah and his brother Khosrow was also to the effect that before the accident, the plaintiff was a happy, outgoing, apparently well adjusted and physically healthy man and after the accident he became depressed, angry and anti-social. The evidence of his father-in-law Mahmoud Zhalaye and his brother-in-law Dalshad Zhalaye also was consistent with the plaintiff’s account, in this respect, but can be given little weight because they had not seen the plaintiff for many years before their arrival in Australia in July 2001.
In addition, the medical reports tendered on behalf of the plaintiff and provided by Dr Dounas, Dr Harvey, Dr Gould-Hurst and Mr Munyard, on their face, support the plaintiff’s claim that his life changed significantly both as to his physical condition and as to his emotional and psychiatric condition after the accident. I will come back to the medical evidence in more detail later in these reasons.
The Plaintiff’s Credit Attacked
The plaintiff’s credit came under a sustained attack during cross-examination and throughout the trial generally. In this section, I have not been comprehensive but have selected for discussion those matters which, in my view, have the more significant bearing on the plaintiff’s credit.
Rule 46.15 Affidavits
The plaintiff signed four documents purporting to be affidavits of loss in compliance with Rule 46.15 of the District Court Rules 1987 (P9). The plaintiff was cross-examined at length about the content of these affidavits and as to the circumstances in which they were purportedly sworn or affirmed. Taken at face value, they contain a number of significant inconsistencies which the plaintiff, in his evidence, sought to justify in two ways; first, by attempting to explain that, in reality, there was no inconsistency and second, by stepping back from the documents and saying that he did not understand them at the time he affixed his signature.
The major issue of inconsistency centres on the extent to which the plaintiff drove his taxi cab as part of his business and for reward during the years after the accident. It was the defence case, that the plaintiff shifted position and admitted having a partial capacity to drive the taxi for reward only after he became aware that the defendant had been obtaining surveillance video footage. The plaintiff agreed that he had been visited by the police who told him that it had been alleged that he had been working as a taxi driver after the accident and that this visit occurred after he had signed the first document (19 May 2004) but before he filed the next three.
The first affidavit of loss presents as having been affirmed before a Commissioner for taking affidavits on 19 May 2004 at a time when Mr William Botten was acting as the plaintiff’s solicitor. The document contains a number of statements to the effect that the plaintiff had been wholly incapacitated from his previous work as a self-employed taxi driver from the date of the accident until the date of affirming the Rule 46.15 particulars and that he had not worked since the date of the injury (paragraphs 1.2.2, 1.2.3, 1.2.6, 1.2.8 and 1.2.11). The affidavit also sets out in some detail the nature of the plaintiff’s physical and psychological conditions and disabilities. There is nothing on the face of the document to suggest that, when purporting to affirm it, the plaintiff had the assistance of an interpreter. During cross-examination, the plaintiff said he could not recall signing the document but conceded that the signature was his and that he signed it in Mr Botten’s office. He said that he did not read it and that nobody read the document to him although, when pressed on that point, he said, “I don’t remember” (T224). When asked if there was a Kurdish interpreter available when he visited Mr Botten, he said, “I don’t remember”. The plaintiff said in cross-examination that the affidavit was all wrong and that when he signed the document he didn’t understand anything in it.
The second document in exhibit P9 is one dated 16 July 2007. It has been signed by the plaintiff and purportedly affirmed in the presence of a justice of the peace. Again, there is nothing on its face to suggest that the plaintiff had the assistance of an interpreter. This document contains statements in terms of the plaintiff having been partially incapacitated from his previous occupation as a self-employed taxi driver from the date of the accident until the date of affirming the affidavit (paragraphs 1.2.2, 1.2.6, 1.2.8 and 1.2.11). In cross-examination, the plaintiff acknowledged signing the document and identified some of the handwriting as being his brother’s. He denied that the reason it contained the references to part-time work was because, by the time he came to sign it, he knew that the defendant had surveillance evidence of him driving the taxi. The plaintiff said in cross-examination that his brother prepared the document and told him that it was a copy of the previous affidavit but with changes. However, the plaintiff said that he did not read it and did not know what was in it or what the changes were. He said that he didn’t discuss this second document with his brother, “My brother has done it by himself”. The plaintiff signed it because his brother told him to sign it.
The third document in exhibit P9 is headed “Affidavit of Loss” and was signed on 13 August 2007. It contains statements to the effect that the plaintiff has been incapacitated from driving a taxi and from any other job on a full-time basis since the date of the accident and until the date of affirming these particulars (paragraph 1.2.2), that after the date of the accident, the plaintiff received income as a result of leasing the taxi (paragraph 1.2.3), that the plaintiff has been partially incapacitated from his previous work as a self-employed taxi driver since the date of the accident and until the date of affirming these particulars (paragraph 1.2.6), that the plaintiff has worked part-time (paragraph 1.2.8) and that, as a result of the accident, the plaintiff has not been able to work full-time or been able to look for any kind of gainful employment whatsoever (paragraph 1.2.11).
The document has been signed by the plaintiff (this time purportedly sworn) before a justice of the peace and the bottom of each page has apparently been signed by “Zino Bastiani, Kurdish interpreter”. Attached to the document is a form of interpreter’s certificate but it has not been completed with the identity and other details of the interpreter. Again, in cross-examination, the plaintiff admitted that it was his signature on the document. He said that the interpreter who was there told him to come over and sign the document but did not read it to him in the Kurdish language. He said that he knew it was an affidavit showing his loss of income, but that is all. The plaintiff said that he knew Mr Bastiani from the Kurdish community and was then asked this question, “If you knew him, why didn’t you ask him to interpret the document for you, so you knew what you were signing?” to which he answered, “Sorry, I didn’t know. I swear I didn’t know that.” When pressed on this topic, the plaintiff repeated a number of times, “I didn’t know to ask him” and “I didn’t think to ask him” (T704). He then said he didn’t understand what an affidavit was and he didn’t know what loss of income meant and he didn’t know that the court needed to understand what his loss of income was.
The fourth document in exhibit P9 bears the date 8 November 2007. It contains statements to the effect that the plaintiff was totally incapacitated from driving a taxi or doing any other job for 2 years or longer since the date of the accident following which he started working 2 days a week for a year until 31 May 2004 when he terminated his taxi business (paragraphs (ii), (iii) and (viii)). However, the document also contains statements to the effect that the plaintiff had been wholly incapacitated since the date of the accident ((vi) and (xi)). The document purports to have been affirmed before a justice of the peace and also before a Kurdish interpreter, Zino Bastiani, who completed and signed a certificate to the effect that he was qualified in both the English and the Kurdish languages and that he had truly, distinctly and faithfully interpreted the contents and that he would truly and faithfully interpret the oath or affirmation about to be administered.
The plaintiff agreed that an interpreter, Mr Bastiani, was present. However, he said that Mr Bastiani did not interpret the document for him. The plaintiff did not read it nor did his brother read it to him before he signed it. He said that Mr Bastiani was there for the purpose of reading the document to us, “but he had something to do, he was in a hurry so he didn’t read it for us” (T709). Again, he said his brother just prepared the document by himself without reference to the plaintiff. He did see Mr Bastiani sign the document. The plaintiff said that he had not seen Mr Bastiani since the time he signed this document and wasn’t sure if he could make enquiries about his whereabouts so that he could come and give evidence. However, later in his cross-examination, the plaintiff said that whilst Mr Bastiani did not read the document to him, a Mr Asiz did read it to him at some stage but he could not remember whether this occurred before or after he signed it. He said that when Mr Asiz read it to him, he was happy that it was an accurate document. I interpolate here that the document of 8 November 2007 does not declare itself to be an affidavit and may, in the strict sense, not be in the form of an affidavit. Nevertheless, it is a document purporting to set out the plaintiff’s circumstances and which has been signed by the plaintiff for the purposes of filing in court and putting the defendant on notice of the plaintiff’s position.
I have only touched briefly on the extensive cross-examination relating to each of the documents in exhibit P9. I have already referred to the unsatisfactory nature of the plaintiff’s evidence in court concerning the critical issue of the extent to which he was able to drive a taxi after the accident and the extent to which he did, in fact, drive a taxi. However, the plaintiff said that when the last of the documents in P9 was read to him by Mr Asiz, he formed the view that it was accurate. Yet, it declares that the plaintiff was totally incapacitated from driving a taxi or doing any other job for at least 2 years after the accident. This is quite at odds with the plaintiff’s evidence in court that he did some taxi driving.
I am not prepared to accept the documents in exhibit P9 as in any way declaring an accurate or truthful position concerning the plaintiff’s capacities. My ultimate conclusion based on his evidence on this topic and also the evidence concerning other documents signed by the plaintiff to which I will come, is that the plaintiff is prepared to sign any document if he thinks, at the time, it will assist his then cause. The plaintiff has little understanding of or regard for the imperative to be accurate and truthful in a document which represents to others things about himself and to which he is prepared to affix his signature.
Application for a Gold Credit Card – Exhibit D13
Exhibit D13 is the copy of an application for a gold credit card to be issued by the Commonwealth Bank. The application was signed on 25 May 1999 and submitted on or about that date. The plaintiff admitted, in his evidence, that he signed and submitted the application.
According to the plaintiff, as of May 1999, he was essentially unemployed and reliant on Centrelink payments. It was only in the second half of 1999 that the plaintiff acquired the motor vehicle which he used in the business of taxi driving. However, exhibit D13 declared that the plaintiff was in receipt of a gross annual income of $47,000. It also described him as having been in employment for 2 years as a block hand in the Riverland. There is a line ruled through this part of the information on the exhibit which was not satisfactorily explained in the evidence; as such, it is unclear whether the application went forward with the plaintiff asserting this employment information or whether the application went forward in an amended form, that is, deleting this employment information. Nevertheless, there is no suggestion on the face of the application that the asserted gross annual income of $47,000 was not to be relied on. In addition, exhibit D13 contains a representation that, at the time it was signed, the plaintiff had motor vehicles worth $18,000 and $5,000 and household items, furniture, jewellery etc, to the value of $40,000. In due course, a visa card was issued by the Commonwealth Bank in the name of the plaintiff.
When cross-examined about this incident, the plaintiff said that a friend of his, Mr Resit Pacaci, suggested that he obtain the credit card and that the application was filled out by a woman at the Commonwealth Bank with the assistance of this friend. The plaintiff signed the application when he was told to but did not read it nor understand the information it contained. He said that he gave the woman his driver’s licence so that she could write down his name and he told her the name of his wife. He said that most of the information in the document was either provided by Mr Pacaci or made up by the woman at the bank. He recalled that Mr Pacaci told the woman at the bank that he had worked for Mr Pacici, but he could not remember how long Mr Pacaci said he had worked for him. He said that at the time the part of the document concerning his alleged employment was completed he had gone outside for a cigarette. He wasn’t there for the whole of the discussion between Mr Pacaci and the woman at the bank. He denied telling the woman that he earned $47,000 a year and said, “I didn’t say that. I think the lady filled out herself, it is not my handwriting.” (T147). He agreed with the cross-examiner that the effect of his evidence was that the lady came up with the figure of $47,000 without any discussion with him. He said that the assertion that he earned $47,000 was false at the time. However, it was not his lie; if it was a lie it was Mr Pacaci’s lie.
In essence, the plaintiff’s evidence was to the effect that he merely signed the document that he was asked to sign, that the content of the document as to essential matters was generated either by Mr Pacaci or the woman at the Commonwealth Bank or both and that he was not responsible in any way for the content of the document. The cross-examiner put to the plaintiff the proposition that the content, in fact, represented the true position and that he had been working for 2 years full time as a block hand and that he had earned $47,000 a year or thereabouts. The plaintiff denied this and maintained this information was incorrect.
Applications for Renewal of Taxi Driver Accreditation – Exhibits D23 and D24
On the plaintiff’s case, he was incapacitated as the result of the accident from operating as a taxi driver. His evidence in court was inconsistent on this topic. I have already summarised the inconsistent positions put in the Rule 46.15 affidavits. In court, the plaintiff never admitted driving regularly as a taxi driver or being able to drive regularly as a taxi driver. He said that from time to time he would do a little bit of driving “Not even part-time, maybe once a week, twice a week …” (T89) when he had to because of the pressure of bills to be paid and the lack of a relief driver.
Furthermore, the plaintiff was repeatedly certified after the accident and throughout the period during which he owned the taxi as being totally unfit for work. For example, exhibit D45 contains a series of documents prepared by Dr Harvey, the plaintiff’s treating psychiatrist. Included is a treating doctor’s report dated 9 July 2001 signed by the plaintiff which describes him as suffering from major depression and muscular ligamentis injury of the cervical spine featuring significant stiffness, pain, and spasm of the neck and thoracic musculature. The psychiatric condition is described as temporary and improving, whereas the muscular ligamentis injury is described as constant. Dr Harvey, in this report, certified the plaintiff as temporarily unfit for work between 6 July 2001 to 28 September 2001. Also included in exhibit D45 is a treating doctor’s report dated 6 September 2001 signed by the plaintiff. This report also certifies that the plaintiff suffered from major depression and muscular ligamentis injury of the cervical spine. The report certifies that the plaintiff is likely to be able to return to work for at least 8 hours per week within 6 months but is unlikely to be able to return to work requiring more than 20 hours per week in less than 2 years. On 28 September 2001, Dr Harvey completed a Centrelink medical certificate certifying the plaintiff as unfit for work from 28 September 2001 to 30 November 2001.
During 2001, Dr Pam Dounas attended the plaintiff from time to time as his general practitioner and regularly certified him unfit for work as a taxi driver until August 2001. Thereafter, certificates certifying the plaintiff unfit for work were prepared in the main by Dr Harvey. In addition, Mr Munyward, the plaintiff’s treating orthopaedic specialist, prepared a report dated 6 December 2002 in which he recounted a number of matters told to him by the plaintiff including that, “he has not gone back to driving a taxi yet”. Following his review at that time, he expressed the opinion that the plaintiff probably would have some restrictions in his capacity to work as a taxi driver because of the restricted movement of his neck.
Finally, by way of background, Dr Harvey wrote a letter to Centrelink dated 28 September 2001 (D41) in support of the plaintiff’s application for a disability support pension and described the plaintiff as suffering from a major depressive illness together with a pain syndrome secondary to muscular ligamentis injury of the cervical spine. In the letter of support, Dr Harvey stated that the plaintiff has not been able to do his usual work as a taxi driver now for the past 14 months. In a follow-up letter to Dr Dounas dated 28 November 2001 (D42), Dr Harvey, having reviewed the plaintiff, told Dr Dounas that the plaintiff reported having a high level of pain in his shoulder, neck and lower back and that whilst he has increased his level of exercise, he has not been able to do any other activities. Dr Harvey said that the plaintiff told him that, in effect, his symptoms precluded him from doing any work activity.
I have set out the above by way of background to a consideration of exhibit D23, which was brought into existence on or about 6 August 2001. This background, as briefly summarised, is a compilation of medical observations by the medical practitioners referred to and matters purportedly told to them by the plaintiff prior to and around the time that exhibit D23 was prepared. A significant issue before me was whether the matters reported by various medical practitioners as having been told to them by the plaintiff and, in particular, his assertions as to his inability to drive his taxi, were in fact told to them or whether the medical practitioners were mistaken in this respect, as has been maintained by the plaintiff. I accept the evidence of the medical practitioners in this respect and reject the evidence of the plaintiff. I have no doubt that the various medical practitioners seen by the plaintiff, by and large, accurately recorded in their reports and in their practice notes the things told to them by the plaintiff concerning his capacity to drive his taxi. I find that the plaintiff was disingenuous with the court when he denied having told the various doctors from time to time that he was unable to drive his taxi.
I conclude that, throughout the year 2001, including as at August 2001, it was the plaintiff’s “case” that he was physically incapable of driving a taxi because of his neck and shoulder injuries in addition to his depressive state and that he made this plain, at all times, to his treating doctors so as to maintain his Centrelink status.
I turn now to exhibit D23. It is an application for renewal of driver accreditation. There are two sections to the document. The first section states that it is to be completed by the applicant. All questions in this section, concerning the plaintiff’s medical history, have been answered by a tick in the “no” box. In particular, the following questions received a “no” response:
1. Are you being treated by a doctor for any illness or injury?
2. Are you receiving any medical treatment or taking any medication?
6 Have you ever had, or been told by a doctor, that you had any of the following:
6.14 Psychiatric illness – nervous disorder
6.17 Sleep disorder, . . . .
7.Have you ever had any other serious injury, illness, operation or been in the hospital for any reason?
The “no” response to each of questions 1, 2, 6.14 and 6.17 is plainly false. The “no” responses to these questions and to question 7 provide an impression quite inconsistent with the plaintiff’s situation as he had represented it to his medical practitioners and to Centrelink between the date of the accident in July 2000 and the date of this exhibit D23, that is 6 August 2001.
At the end of this first section is an “Applicant’s Declaration” in the following terms:
I, Mustafa Fardi:
(a)Declare that to the best of my knowledge the information regarding my medical background is true and correct and that I have made the doctor aware of any medical conditions which I may have and drugs or medications that I use;
(b)Consent to Dr Peter Schultz releasing medical information to the Passenger Transport Board or a medical practitioner nominated by the Board in order to assess my medical eligibility for driver’s accreditation.
The declaration was signed by the plaintiff and dated 6 August 2001. The reference to Dr Peter Schultz in the declaration is in handwriting and I am satisfied that it was inserted by Dr Peter Schultz.
The second section of the form is headed “Medical Examiner to Complete” and purports to set out the results of a medical examination of the applicant. In all respects the plaintiff’s medical presentation is recorded as “normal”. No concerns are adverted to. In particular, the following aspects of the plaintiff’s medical state are recorded as “normal”:
8.1 Cervical spine rotator;
8.2 Upper limbs – (a) muscle tone, (c) joint movements.
The plaintiff is described as “healthy male”. At the end of this part of the form is a certification to be completed by the medical practitioner and the opinion is expressed that the plaintiff is fit to be the driver of a commercial vehicle and to handle passengers. The declaration states that the medical practitioner concerned, Dr Peter Schultz, examined the plaintiff based on the standards laid down in the medical examinations of commercial vehicle drivers.
Both Dr Schultz and the plaintiff gave evidence about this document. I turn first to the plaintiff’s evidence. The plaintiff said that Dr Schultz filled out the form and that he could not remember what, if anything, he told Dr Schultz. The plaintiff said that he could perform the physical examinations undertaken by Dr Schultz but did so with pain. He said that he went through this process to retain his accreditation even though he was unable to drive a taxi because he did not want his licence to expire. When taken to various questions in the section of the form headed, “Applicant to Complete”, the plaintiff said he did not remember whether or not he answered the questions; he just told Dr Schultz that he wanted to get his taxi licence. He didn’t remember Dr Schultz asking him anything. He was asked to stand up and do a few movements after which Dr Schultz asked him to sign the document; he did so. He agreed that when he went to other doctors for the purposes of obtaining a Centrelink certificate, he had told them that because of a car accident he had significant pain in his neck and his right shoulder. However, he maintained that when asked by those doctors to move his neck, he was able to do so and did move his neck although with pain. He said he always tried his best. However, when asked why he didn’t tell Dr Schultz about the motor vehicle accident in 2000 and that he suffered pain in his neck, his response was that Dr Schultz didn’t ask him and therefore he didn’t give the answer.
The plaintiff was able to renew his taxi accreditation on the basis of exhibit D23 but maintained throughout his cross-examination that it was not an accurate record of his physical condition.
Dr Peter Schultz gave evidence on the topic of exhibit D23. He was, at the time of trial a 65-year-old general practitioner. He graduated in medicine in 1974. He told the court that he regularly certifies people for taxi accreditation and does approximately 5 to 6 of these a year. He had no recollection of this 2001 examination of the plaintiff. However, after being shown exhibit D23, he indicated that he completed the form except for the plaintiff’s signature. He said that it was his practice to lead an applicant through the questions and to make appropriate entries unless the form had already been partially completed by an applicant. He told the court that he believed himself to be quite “adept” in dealing with communication difficulties and said that if any difficulties emerged, he would defer his examination until a “translator” was available. The fact that the form was completed indicated to him that he had been satisfied with respect to the plaintiff’s comprehension during the questioning process and with their communication. Furthermore, his findings on examination were consistent with the information apparently received from the plaintiff.
I was impressed with Dr Schultz as a witness and I accept that he acted professionally and appropriately when arranging for exhibit D23 to be completed and signed by the plaintiff. I am satisfied that the information contained in the first section of the form was completed by Dr Schultz on the plaintiff’s instructions and that the plaintiff understood the questions and gave the answers that are, in effect, recorded. I reject the plaintiff’s evidence to the extent that it is inconsistent with this finding.
Exhibit D23 is plainly inconsistent with the plaintiff’s case. It represents that the plaintiff presented as physically capable of undertaking the occupation of a taxi driver. The plaintiff allowed this representation to go forward because it was important to him that he obtain his accreditation. Either exhibit D23 states the truth about the plaintiff’s physical capabilities or, to the extent it does not, it again demonstrates that the plaintiff was prepared to sign a form containing representations about his medical state if he thought it would assist him at the time and whether or not the information in the form was accurate.
I turn now to exhibit D24, a second application for renewal of driver accreditation, this time completed on or about 11 August 2006. It also has been signed by the plaintiff and contains a declaration in the following terms:
I declare that to the best of my knowledge the information regarding my medical background is true and correct and that I have made the doctor aware of any medical conditions which I may have and drugs or medication that I use.
The section headed “Applicant to complete” is in terms similar to those in exhibit D23 and a “no” response is recorded to the following questions:
1. Are you being treated by a doctor for any illness or injury?
2. Are you receiving any medical treatment or taking any medication?
6.Have you ever had, or been told by a doctor, that you have had any of the following:
6.14 Psychiatric illness, nervous disorder
6.17 Sleep disorder . . . .
7.Have you ever had any other serious injury, illness, operation or been in hospital for any reason?
At the foot of this section is the applicant’s declaration referred to above and signed by the plaintiff.
The section headed “Medical examiner to complete” is also in terms similar to those in exhibit D23 and reports the plaintiff as having, in effect, a clear bill of health. Again, cervical spine rotation and upper limbs, muscle tone and joint movements are all recorded as being normal. At the bottom of this section is a medical practitioner’s declaration to the effect that the plaintiff was examined for the purposes of completing the form and it is signed by Dr W.Y. Herbert. The declaration states that in the doctor’s opinion, the plaintiff was fit to be the driver of a commercial vehicle and to handle passengers.
Dr Herbert gave evidence. She is a general practitioner who graduated in 1998. She told the court that she is experienced in occupational certification. She explained to the court her usual practice when undertaking a certification task such as the one indicated in exhibit D24. She told the court that if she perceived any communication problems, she would defer the matter until an interpreter was available. She had no recollection of this particular examination. However, she gave evidence based on her usual practice and on her computer record notes. She explained the range of tests that she would have an applicant participate in to ensure that the person had the normal ranges of movement in the neck and arms and so forth. The fact that she has ticked a box stating that the cervical spine was normal indicated to her that she would have undertaken tests to ascertain that that was so. She would have noted any restriction either explained to her by the plaintiff or noted on examination. As far as the first section - that to be completed by the applicant - was concerned, Dr Herbert said that if she had in fact ticked the various boxes, she would only have done so after asking the plaintiff each question and noting his answer. However, she could not now remember and could not determine on the basis of the markings on the form whether she in fact did tick the various boxes in that section or whether that section was presented to her already completed.
The plaintiff was cross-examined about exhibit D24. He said that notwithstanding that he had ceased owning a taxi as at May 2004, he wanted to maintain his accreditation in August 2006 “just in case and in emergency time”. The following exchange then occurred (T276):
QHave you been driving taxis, charging customers, taking them places since May of 2004 up to the present time.
ANo. I don’t remember anything.
QIs it your case to his Honour that in August of 2006 you still had injuries from the motor vehicle accident in the year 2000.
INTERPRETER Can you repeat that one?
QIs it your case that in August 2006 you still had ongoing injuries caused in the accident in 2000.
AYes.
QStill had problems with your neck in August 2006.
AI had pain but I was much better than before.
QStill had problems with your shoulder, right shoulder, in August 2006.
AI had the pain but I was much better than before.
QStill had problems with headaches.
AStill I have headache but now it’s better than before.
QAnd still had problems in August 2006 with psychiatric problems.
AYes.
QIn August 2006 were you still receiving Centrelink payments on the basis that you weren’t able to do your work as a taxidriver.
AYes.
Later during the cross-expiration on this topic, this exchange occurred (T278-279):
QDid you tell Dr Herbert about any of the problems that you’ve told his Honour about; the injuries that you say you suffered in the motor vehicle accidents.
ANo. He didn’t ask me.
QWhy not, if they were still problems for you.
AI didn’t say that and he didn’t ask me anything about that.
QIf you could turn to p.3 of the document in front of you, do you see there where it says ‘Section 1, applicant to complete’.
AYes.
QDo you see there your signature under the heading ‘Applicant’s declaration’.
AYes.
Q‘All the information regarding my medical background is true and correct and I have made the doctor aware of any medical condition which I may have and drugs or medication that I use’. Can you see that there.
AI didn’t read it.
QWhy did you think you would have to sign that document.
ABecause he fill out the form and he examinate (sic) me so that’s why I signed it.
QYou are signing it to say that what is written on the form is true and you’ve signed it to say that you verify it.
AI didn’t read it and he didn’t ask me to read this one if it’s true or not.
QWho ticked the boxes there that appear in s.1.
AThe doctor.
QAnd did the doctor ask you questions whilst he was ticking the boxes on that form.
AThe doctor ask me to do some exercise and I did.
QI didn’t ask you about that and you know that. I asked you did the doctor ask you questions when he was filling out that part of the form.
AI don’t remember if he ask me any question. Maybe.
QDid he ask you whether you had any head injury or spinal injury.
AI don’t know.
QYou can see there on the form the box ‘No’ is ticked next to the words ‘Head injury, spinal injury’.
AYes, I can see that but I don’t remember.
QThinking back on it, do you remember him asking you whether you had any problems with your head or your neck and you said ‘I’ll tell him “No”.’ Did something like that happen.
AI don’t know, I don’t remember.
QI suggest you told Dr Herbert that you did not have any problems with your head or your spine in August 2006.
AI don’t know honestly if he ask me this one or not, but I know I had some examination over there.
QIn the examination you were able to do everything the doctor asked you to do; is that correct.
AYes.
QYou could move your head from side to side.
AYes, that’s right.
QAnd you could move your arms up and down.
AWhatever he ask me I did.
QYou weren’t stopped from doing anything because of the pain.
AYes.
QIt was a poorly asked question, I’ll ask it again. Did pain stop you from doing anything or restrict you from doing anything in the examination that Dr Herbert undertook.
ANo. But I had the pain. It’s not that much that I had before.
Dr Gould-Hurst started to see the plaintiff following another car accident, in which the plaintiff was involved, which occurred in June 2004. Dr Gould-Hurst said that he only saw the plaintiff in relation to that accident. I return to Dr Gould-Hurst’s evidence in more detail later in these reasons. However, Dr Gould-Hurst provided a report dated 19 June 2006 (D35) in which he stated that in an examination on 19 May 2006, the plaintiff described his symptoms as:
(A) His neck he is unable to straighten or move his head;
(B) That he has constant pain and headache;
(C)That he has pain in his right shoulder and down his right arm to his hand which also feels pins and needles;
(D)He describes constant low back pain … with radiating pain down his legs … He describes great difficulty turning in bed because of back pain and difficulty getting in or out of a car.
Dr Gould-Hurst also undertook a physical examination on 19 May 2006 and reported as follows:
On request, he was unable to straighten his head and demonstrated inability to actively rotate his head to the left or to extend it.
Dr Gould-Hurst also noted that the plaintiff suffered from depression and then expressed the view that although the plaintiff strongly desired to recover and return to work, his disabilities made him unable to work as a taxi driver because of neck pain and headache and a loss of function (and fixed deformity) of his neck. Dr Gould-Hurst expressed the opinion that the effects of his condition were likely to be permanent.
In his evidence in court, Dr Gould-Hurst said that he had seen the plaintiff 20 or 30 times from July 2004 until the date of trial. He said that the condition of the plaintiff had changed very little over that period of time and that “he still has pain and is unable to move his neck in a normal range, he is still profoundly depressed. That’s all I can say, really; it hasn’t changed”.
The position described by Dr Gould-Hurst for the period July 2004 until the date of trial concerning the plaintiff’s physical capacities is quite inconsistent with that as recorded in the application for renewal of driver accreditation dated 11 August 2006 (D24). Having considered Dr Herbert’s evidence I have no reason to doubt that, like Dr Schultz, she acted professionally and appropriately when arranging for exhibit D24 to be completed and signed by the plaintiff. I am satisfied that the information contained in the first section was either presented to Dr Herbert in completed form or provided to Dr Herbert by the plaintiff in response to her questioning.
Royal Guardian Mortgage Corporation Pty Ltd Application – Exhibit D27
Exhibit D27 is an application form addressed to Royal Guardian Mortgage Corporation Pty Ltd (“Royal Guardian”) and seeking a loan of $209,000 in order to purchase a house with a represented purchase price of $220,000. The application is in the name of the plaintiff and was signed by the plaintiff on 11 November 2003. The application was successful; it is common ground that, with the assistance of this loan, the plaintiff purchased a house in which he and his family could live. Again, by way of background, it is the plaintiff’s case that as at November 2003, he was unemployed, unable to undertake employment and was dependent on Centrelink benefits.
The application makes a number of representations about the plaintiff’s financial circumstances including that the plaintiff’s assets included cash funds held in bank accounts of $31,000, a motor vehicle or motor vehicles owned by the plaintiff to the value of $20,000, marketable personal effects valued at $60,000 and other assets to the value of $10,000. The form also represented that the applicant was in receipt of a gross income of $61,000 per annum and that he was employed by an enterprise called Shahrzad Persian Carpets. Exhibit D27 is signed by the plaintiff at five separate locations. The last page of the document contains a declaration to the effect that the information provided in the application is true and correct.
Accompanying the application (D27) was a PAYG payment summary purportedly in the name of Shahrzad Persian Carpets as employer and the plaintiff as employee and representing that the plaintiff had been employed from 1 July 2002 to 30 June 2003 during which period he had received a gross income of $61,102 with total tax withheld of $17,295. The document is unsigned. Also accompanying the application were two computer print-outs in the name of Shahrzad Persian Carpets and which represented salary received by the plaintiff for the week ending 31 October 2003 and salary received for the week ending 7 November 2003. These three documents are exhibit D28. Exhibit D29 is the loan agreement entered into between Permanent Custodians Ltd (a company within the Royal Guardian Group) and the plaintiff, signed on behalf of Permanent Custodians Ltd on the seventh page and by the plaintiff on pages 8 and 9.
A number of questions arise from this series of documents. Was the financial information concerning the plaintiff, set out in the documentation, correct or incorrect at the time? If correct, how can it be reconciled with the plaintiff’s case, in this court, that he was unable to work and was dependent on Centrelink benefits? If not correct, how is it that the plaintiff allowed the application to go forward in the form that it did? The plaintiff was cross-examined at length on these and other issues.
The plaintiff said that he did in fact borrow this money to buy his family a house notwithstanding that he was essentially dependent on Centrelink income and was still paying off the car used in the taxi business at $750 per calendar month. All money earned from the taxi business, either through his brother or other persons driving it, was effectively spent on driver payments, maintaining the taxi and paying the various accounts incurred in running the business.
The plaintiff said that his brother-in-law lent him $20,000 to assist with the deposit on the house. This is inconsistent with the evidence of his brother-in-law, Dalshad Zhalaye, who told the court that he helped the plaintiff with the sum of $3,500.[5] However, the plaintiff’s father-in-law, Mahmoud Zhalaye, told the court that he gave the plaintiff $14,000 to help with the house purchase.[6]
[5] Exhibit P60 is a bank statement for the plaintiff’s “streamline” account with the Commonwealth Bank. It records, consistent with the brother-in-law’s evidence, a deposit on 18 December 2003 of $3,500.
[6] Exhibit P58 is the receipt issued by Bank SA to Mr Zhalaye at the time he withdrew $14,000 on 6 November 2003. Exhibit P57 shows a corresponding credit of $14,000 on 6 November 2003 in the joint account of the plaintiff and his wife with Westpac.
The plaintiff acknowledged that the Royal Guardian application (D27) contained his signature but said that it was not his writing on the form. He said that he paid $700 for someone to fill out the form for him and that the only thing he did was sign it. He said that the form emanated from Sydney. He was given the contact details of somebody in Sydney who could help him with a house mortgage loan and all he needed to do was make one phone call. He sent some details about himself on a different paper to a Sydney fax number. The people in Sydney filled out the form and faxed him only the last two pages which he signed and returned. He did not tell these people anything about being employed by Shahrzad Persian Carpets for three years as manager, nor did he give them any of the financial information contained in the form. He said he had no idea who in fact filled out the form. The only information he gave was his name, his driver’s licence number, his address and family details. According to the plaintiff, none of the information on the form concerning his purported financial position or his employment was true.
I interpolate here that the plaintiff’s evidence that he was faxed only 2 pages which he signed and returned is inconsistent with the fact that at the top of each of the 8 pages in exhibit D27 is a header recording “From Mustafa Fardi”. Furthermore, his signature appears on pages 5, 7 and 8. After initially saying that only the last 2 pages were provided to him which he signed, the plaintiff changed his evidence and said that the whole of the document was sent to him but it was blank and he was only asked to sign the form after which he faxed the form back. He said that he spoke to a man called “Abba” whom he thought was Afghani and paid him $700 or $750 to assist him in obtaining this loan. He put money into Abba’s account after Abba gave him an account number. He said that he was no longer in contact with Abba and had not seen him since he paid the money to him in 2003. However, his wife and his family were with him when he signed the form.
The plaintiff said that he did not recognise the documents in exhibit D28 and denied using them to assist in getting the home loan. Initially, I received these documents marked for identification only. However, late in the trial I received an affidavit from Mark Stariha, the General Manager of Royal Guardian (D93) to the effect that Royal Guardian received a home loan application from a loan broker, Noamdic Finance, on behalf of the plaintiff dated 11 November 2003 and that, in addition and in support of the home loan application, Royal Guardian received the documents set out in exhibit D28. I therefore accepted the tender of exhibit D28 on the limited basis that these documents formed part of the Royal Guardian file in relation to the matter and formed part of the application for finance as received by Royal Guardian.[7]
[7] The plaintiff objected to the tender of exhibit D28 maintaining that he had never seen these documents and had nothing to do with them. After receiving the affidavit in exhibit D93, I formed the view that a tender of the documents on the limited basis outlined in the text was not an issue seriously in dispute and on this basis I declined to require someone from Royal Guardian to attend from Sydney and provide oral evidence on the issue. I accepted the tender in accordance with the power available to me under s59j of the Evidence Act1929.
The plaintiff maintained throughout cross-examination on this topic that he paid an amount of $700 or $750, to the man called Abba, who said that he could arrange house finance for him. He only ever signed an application or parts of an application that was blank at the time of signing. In due course, the finance was approved, the plaintiff executed the necessary loan documents and was in a position to purchase the house.
Whether or not the information contained in exhibit D27 is accurate, the plaintiff has again demonstrated that he was prepared to sign and put forward whatever documentation may be necessary in order to obtain the financial advantage he was seeking. In so doing, he was willing to allow representations about his financial circumstances to be put forward, apparently unconcerned as to whether they were true or false, in order to obtain the financial advantage he was seeking. I accept that the plaintiff was operating in an unfamiliar country, in an unfamiliar culture and with an unfamiliar language. However, after observing him in the witness box for many days, and having heard evidence about his educational and general background in Kurdistan, I formed the view that he was not an unintelligent man who would be easily duped by others.
The plaintiff has been making repayments on the house loan since its purchase in December 2003.[8] As at the date of trial, his repayments were $720 per fortnight. He also said that his wife was not working, but that his “children’s money” went to the mortgage. I infer that he was referring to family allowance monies received from Centrelink. When asked how much he received from Centrelink, he was unable to give a precise figure. He estimated that he received $500 a fortnight from Centrelink and that his wife received something similar together with something on account of the children. He said that he also gets money from his brother-in-law, his sister-in-law and his brother. The plaintiff’s evidence on this topic was unclear and unsatisfactory. I accept that he and his wife are on Centrelink benefits and that their benefits include an allowance for their three children. According to the plaintiff, there is sufficient money coming in to pay the $720 a fortnight for the house with the balance, together with the assistance received from the wider family, being sufficient to buy food and pay other household expenses.
Colonial (Commonwealth Bank) Home Loan Application – D30
[8] Exhibit P56.
Exhibit D30 is a second home loan application presented to Colonial in the name of the plaintiff in or about December 2007. Whilst the application itself was not signed by the plaintiff, he accepted that it was put forward on his behalf and with his authority. However, he again said he had nothing or little to do with the provision of the information set out in the application. The home loan application to Colonial was for the purpose of refinancing the property that the plaintiff had purchased with the assistance of the Royal Guardian finance. Accompanying the home loan application (D30) was a low documentation loan declaration (D31) which was signed by the plaintiff. In due course, the loan was approved. Exhibit D32 comprises three documents each headed “Consumer Credit Contract Schedule” showing the plaintiff as borrower and the Commonwealth Bank as lender all of which have been signed by the plaintiff.
The home loan application (D30) contains a number of representations as to the plaintiff’s financial and other circumstances including:
(i)that the plaintiff’s occupation is “transport” and that he is privately employed on a full-time basis;
(ii) that the plaintiff earns a gross yearly income of $75,000;
(iii)that the plaintiff has total assets of $412,000 including a house at Modbury Heights ($350,000 approximate value), Ford Falcon motor vehicle (approximate value $10,000), Westpac Savings Account (approximate value $2,000), household contents (approximate insured value $50,000); and
(iv) that the plaintiff’s existing mortgage liability comprises a total amount owing of $193,000 and a monthly repayment obligation of $1,634.62.
The application sought a loan of $193,000 in order to discharge the existing mortgage liability and a further $87,000 for “investment” purposes making a total loan sought of $280,000. The low documentation loan declaration (D31) which was signed by the plaintiff on 10 December 2007 “confirms” his financial position as being total assets $412,000, total liabilities $193,000 and a gross taxable income of $75,000 per annum. Exhibit D31 also represents that the plaintiff is currently self-employed and has been so for 7 years and (by implication) operates his business under the ABN number 76 519 435 848.
When cross-examined on this topic, the plaintiff acknowledged making the application for a “low doc” loan. He said that the application had been filled out by someone else but he didn’t read it and nobody read it to him. When taken to the contents concerning his alleged financial circumstances, he told the court that the contents of the document were not true. The following exchange occurred during his cross-examination concerning D31 (T357.24 – 358.5):
QHow did the person put the information on the document, so far as you are aware.
AI don’t know.
QIt says there ‘I certify that I am currently self-employed and have been self-employed for a period of seven years’; do you see that.
AThis is not true because I didn’t write down.
QBut that information of the seven years, that was there before you signed the document; correct.
AYes, and the rest of this form was fill out plus other document.
QThen it says down there ABN number and it’s the number that I read out to you before lunch.
AI don’t know this is my ABN number, but I’m not sure if this is my ABN number or not, but the rest of this paper was filled out by someone, then I sign it.
QSo, would you sign it to say that the information on that document is correct.
AJust I sign it to get refinance, and I don’t know if is anything true or not true.
A little later, the following exchange occurred. It encapsulates the plaintiff’s attitude as demonstrated throughout his cross-examination.
QDid you tell people working for the Colonial Bank or the Commonwealth Bank that you couldn’t work because you were so injured and all the money that you were getting was from Centrelink; did you tell them that.
AThey didn’t ask anything about that.
Of the additional $87,000 that was sought in the loan application, only $57,000 or so was, at the end, provided. The plaintiff made this money available to his brother.
Later in his evidence, the plaintiff said that his brother “did all of these papers”. He said that his brother took the $57,000 to assist him with building his house. However, it remains part of the monies borrowed by the plaintiff and the plaintiff, as at the date of trial, owed the bank about $260,000. The expectation was that his brother would repay the $57,000 on the plaintiff’s behalf. He agreed that the bank was never made aware of this aspect of the arrangement.
According to the plaintiff, his brother arranged for a finance broker, a Mr Joe Mastrantuone, to arrange for the plaintiff’s property loan to be refinanced and the necessary forms were completed by Mr Mastrantuone and his brother. The extent of the plaintiff’s involvement was to sign a form that already had been completed. The plaintiff maintained that he was meeting the new mortgage repayments and that his sole source of money for this purpose was that which either he or his family received from Centrelink. He maintained that, at no time after ceasing to conduct his taxi business, did he work for remuneration.
Both the plaintiff’s brother, Khosrow Fardi, and the broker, Joe Mastrantuone, gave evidence about the plaintiff’s application to refinance his home loan.
Khosrow Fardi presented as evasive, unhelpful and dissembling. He admitted to having pleaded guilty in or about 2001 to a number of offences involving Centrelink fraud.[9] He was an unimpressive witness who plainly calculated and told the court that which he thought might assist his brother’s case, whether it was true or not. When pressed for detail about matters that he did not think would assist his brother’s case, he asserted a poor memory and answered evasively.
[9] In fact, he pleaded guilty to a large number of counts of obtaining a benefit by dishonest means contrary to s120(1)(a) of the Workers Rehabilitation and Compensation Act 1986, exhibit D94.
Khosrow Fardi told the court that he had “some” involvement in arranging the first finance for the plaintiff’s house. He also assisted with the refinancing. He told the court that he owed money and was unable to borrow himself, so he asked the plaintiff if he would refinance his house to assist him. He said that Joe Mastrantuone filled in the application form and that he only introduced his brother, the plaintiff, to Mr Mastrantuone. He denied telling Mr Mastrantuone that his brother earned $75,000. As far as exhibit D30 was concerned, it was Khosrow Fardi’s view (as, indeed, it was the view of the plaintiff) that it was up to the financial people to check on the accuracy of the information provided. In cross-examination, this exchange occurred (T967-969):
QMr Fardi, did you approach your brother about arranging for him to get refinance so that you could get money from that for your loans or your financial situation.
ACorrect. Yes.
. . . .
QDid you know that you would have to present false information about what your brother was earning in order to get the refinancing.
ANo. That was [Joe Mastrantuone’s] duty. Probably he gave me a figure, he says he might give me a figure and says ‘Shall we put this figure down? We try’. And that’s all I’m aware of that. I haven’t given him any documents or any – regarding my brother’s work.
QWhen he says ‘Shall we put this figure down?’, did you have a discussion with Mr Mastrantuone as to a figure to put down that would represent what your brother’s earnings were.
ANo.
QWell, you must have. What does ‘Shall we put this figure down?’ mean.
AHe’s the expert and I was just introducing my brother to him, that’s all.
HIS HONOUR
QWhat did you mean when you had a conversation ‘Shall we put this figure down?’.
AThe conversation – that he just says ‘I’m going to put 75,000’ and I said ‘That’s fine’. That’s all, without giving him any documentation.
QDid he tell you what he was putting $75,000 for.
ANo, no.
QHe didn’t tell you.
ANo, I can’t –
QSorry.
AI can’t recall that and I really don’t.
QYou do you (sic) recall him saying ‘We will put $75,000 in the document’.
AYes.
QBut you don’t recall why.
ANo, he just – he says ‘Because his ABN number is active’.
. . . .
XXN
QYou knew, didn’t you, that you were representing the $75,000 was what your brother would earn in a financial year.
ANo, because it’s not in my handwriting. It’s Mr Mastrantuone’s writing. It was – I wasn’t qualified to do so, so how should I be representing my brother? I’m just introduce my brother to this person.
QYou introduce your brother to this person so that finances could be arranged so that you would get money as a result.
AYes, that’s correct.
QAnd, in arranging for those finances, you discussed with Mr Mastrantuone putting in a figure of $75,000; yes.
AYes, it’s not discuss. He’s the one know how to get the finance.
QHe said – your words – “I’m going to put $75,000”. You said “That’s fine”.
A“That’s fine”.
Joe Mastrantuone said that Khosrow Fardi was an accounting client of his and that he had asked Mr Mastrantuone to do a “low doc” loan for the plaintiff. It was a two step process. The first appointment was an occasion for Mr Mastrantuone to tell the plaintiff what the banks had to offer. He then had a second appointment where both Khosrow Fardi and the plaintiff attended. Mr Mastrantuone did most of the talking in English with and through Khosrow Fardi who was interpreting for the plaintiff. All Mr Mastrantuone needed in order to obtain the loan was a loan statement from the previous lender confirming compliance with the previous loan obligations, a current ABN number, a council rate notice to indicate capital value and a self-declaration of income. He said “we” filled out the application form (D30). Exhibit D31, the low documentation loan declaration form, is in his writing and he recalled seeing the plaintiff sign it. However, he could not recall if he was told that the plaintiff was working for 7 years or whether it was simply the case that the ABN number which he had been given had been registered for 7 years when he checked online. The representation that the ABN number, and therefore the work engaged in by the plaintiff, related to “transport” also was obtained by Mr Mastrantuone following an online computer check. He said he was unclear who told him that the plaintiff earned $75,000 per annum. He said he discussed this with both Khosrow Fardi and the plaintiff together. However, he acknowledged that Khosrow Fardi did 85% of the talking which was in English.
The plaintiff’s brother-in-law, Dalshad Zhalaye (Mahmoud’s son) also came to Australia in July 2001 at which time he observed the plaintiff to be sad, angry and unfriendly. However, Dalshad Zhalaye also had not seen the plaintiff for many years. In 2003, he studied hairdressing at a TAFE college in Sydney. He said that, thereafter, he also helped the plaintiff’s family financially. However, taxation documentation (P61) indicates that he received a taxable income for the financial year 2004 of only $9,939, for the financial year 2005 of only $9,821 and for the financial year 2006 of only $4,206. Any financial assistance that he gave during these years could only have been of a very limited nature.
The plaintiff’s wife, Nohshah, said that there was nothing medically wrong with the plaintiff before they arrived in Australia. She noticed that he slowly started to change after the July 2000 accident. She became aware of neck and shoulder pain, depression and stress. He became isolated and unfriendly and they fell into conflict and argued. She said that without the support of their family it would have been hard to live.
She said that after the accident and throughout 2000, 2001 and 2002, the plaintiff would drive his taxi, not every day, but whenever he couldn’t get a driver. He also drove the family to places, drove to the shops and the kids to school. However, she was unable to give any detail as to the frequency of the plaintiff’s driving other than, when pressed, to say “Maybe sometimes twice a week, maybe once a week”. She said that she told Dr Dounas that the plaintiff could drive and she heard the plaintiff tell Dr Harvey that he drove the taxi two days a week when he didn’t have a driver. I don’t accept the accuracy of these answers. They conflict with the evidence of Dr Dounas and Dr Harvey whose evidence on this topic, and generally, I accept. Mrs Fardi later retreated from these answers. She said that it was her problems that lead to the pre-accident consultations with Dr Michael Lee. She described the plaintiff as being able to move his neck but with pain. He complained to her of the pain. However, she was cross-examined at length about her observations on occasions when she saw the plaintiff move his neck including when turning his head while reversing the car. She said she didn’t know what she observed; she didn’t pay enough attention. She gave no evidence of observing any physical indicators, such as facial grimacing, of the plaintiff suffering pain.
Mrs Fardi gave an account in terms similar to the plaintiff’s, of the means by which their house was first financed. She had no recollection of her children and her husband being involved in another (a third) car accident in 2003 in which the children were injured. The plaintiff, also, at first, denied being involved in such an accident but later in his evidence conceded that he had been. Mrs Fardi said that some time in 2003 or 2004 she threw out papers and documents including daily trip records for the taxi.
Mrs Fardi’s evidence consistently tracked the plaintiff’s evidence on topics critical to the plaintiff’s claim. She used similar terminology. However, she was unable to provide detail. Furthermore, during cross-examination, she often claimed to have no recollection or gave an unresponsive answer to the point of being evasive. She denied discussing her evidence with the plaintiff. However, there were times during her evidence where I formed the view that she was not being full and frank with the court. She had a clear motivation and apparent desire to support her husband’s case.
I have already dealt with various aspects of Khosrow Fardi’s evidence. He also described, in similar terms, a change in the plaintiff’s physical and psychiatric condition following the July 2000 accident. However, for reasons already recorded, I do not accept Khosrow Fardi to be a truthful witness.
The defendant called various witnesses. A number of private investigators were called to formally prove aspects of the film that was tendered. They also gave evidence of their own observations of a person or persons driving a Toyota land cruiser and a Tarago van with various male passengers, each of which was followed throughout the Adelaide suburbs and foothills leaving from the plaintiff’s house at about 6:00am on various mornings. Some of the investigators purported to identify the driver from time to time as the plaintiff. When shown the film of these activities, the plaintiff was cautious and conceded little. However, he did recognise himself as the driver on occasion. According to the witness Desi Evreniades, whose evidence I accept, she had conversations with the plaintiff during which he acknowledged that he had been the driver of the Tarago. This was not challenged by the plaintiff. Insofar as each of the investigators gave evidence of matters within their own direct knowledge, I generally accept it as being reliable.
The plaintiff said that the Tarago was registered in his wife’s name but was paid for by his brother-in-law. The Toyota land cruiser was also paid for by the brother-in-law but registered in the name of the plaintiff. The plaintiff said that he used the Tarago to go fishing but never for fruit picking work.
I am unable to make specific findings about the extent and nature of the plaintiff’s involvement in the activities disclosed on the film and observed by the investigators. However, it is plain that on various occasions the plaintiff was seen to be driving either the Land Cruiser or the Tarago van and participating in an early morning activity with a group of other men. I accept the defendant’s submission that the occasions the plaintiff was filmed driving his taxi, the Toyota land cruiser or the Tarago van are most unlikely to be the only times he participated in such activities.
Police Officer Ben Shepherd gave evidence of receiving a report from the plaintiff of a car accident on 10 February 2003 when the plaintiff was driving and in which two of his children suffered minor injuries. Exhibit D74 is a print-out of the police vehicle collision report. The plaintiff repeatedly denied any knowledge of this accident when cross-examined. However, later in the trial but before Officer Shepherd was called to give evidence, the plaintiff recalled himself and told the court that he could now remember the accident, although it was only a minor one.
Adrian Lee worked, as an investigator, for the Passenger Transport Board in 2002. He investigated a complaint made against the plaintiff for applying an incorrect tariff on 8 August 2002. By reference to the Board’s files, Mr Lee said that he interviewed a person on 8 October 2002 who said that he was Mustafa Fardi and who confirmed that he had been the driver. Mr Lee described his practice of checking an interviewee’s accreditation name and number on their accreditation card when they attend, although he had no recollection or note of doing so on this occasion. However, Mr Lee agreed that one purpose at such an interview was to identify the driver responsible. He said that the person interviewed did not deny the allegation. The person said that he had returned a portion of the fare to the passenger but did not record the relevant trip in the daily trip record because he had forgotten to do so. Had information been received that someone else had been the driver, a note of this would have been made and the investigation would have proceeded differently. The interviewee provided the daily trip record for 8 August 2002 to Mr Lee. Exhibit D73 is a copy of Mr Lee’s file note and a copy of the daily trip record, together with a letter of reprimand sent to the plaintiff on 24 October 2002.
The plaintiff during his cross-examination of Adrian Lee put that he was not the driver and that it was someone else driving on that day who had used the wrong tariff. Mr Lee conceded that he had no actual recollection of the meeting but said the purpose of the meeting was to identify the actual driver and there was nothing in his notes to suggest that he might have had difficulty in understanding or obtaining the information from the plaintiff.
I interpolate here that exhibit D73 is a second daily trip record that records “M. Fardi” as the driver (see also 9 December 2000 at page 1585a of P3), but which the plaintiff asserts to have been incorrectly filled out by his driver. I am satisfied as to the reliability of Adrian Lee’s evidence in this respect and find that the plaintiff admitted to him that he was the driver on 8 August 2002. I find that the plaintiff completed the daily trip record in D73 and was the driver on that occasion. I reject his assertions to the contrary.
Abigail Walters was a passenger transport investigator for the Passenger Transport Board in 2000/2001. She was aware of various investigations concerning the plaintiff’s taxi where it had been accepted that another person was the driver. However, she said there were three instances where the plaintiff identified himself as the driver. The plaintiff, when cross-examining Ms Walters, disputed that he was the driver on these occasions and, early in his own cross-examination, said that he did not remember a government inspector checking on his driving on 15 September 2000 and 9 December 2000. I am satisfied about the reliability of Abigail Walters’ evidence. On the basis of her evidence and exhibits D89, D90 and D91 and the relevant trip records in exhibit P3, I find that the plaintiff was the driver of his taxi on 15 September 2000, on 9 December 2000 and on 3 September 2001.
The trip record for 9 December 2000 (D90) is the one at page 1585a of P3 which records “M Fardi” as both the driver’s name and the licence holder’s name. The trip record for 15 September 2000 (D89) has no driver’s name recorded but has been completed in handwriting similar to that used on the 9 December trip record. No trip record was supplied to Abigail Walters for the 3 September 2001 complaint (D91). However, there is a trip record for this date at page 1974 of exhibit P3. Again, the driver’s name is not recorded. However, the handwriting on it also is similar to that on the 9 December trip record.[17]
[17] I discuss this issue of similarity of handwriting further below.
Abigail Walters gave evidence about another complaint received, this time concerning a taxi driving incident which occurred on 20 February 2001. Her evidence was to the effect that after speaking with the plaintiff she was satisfied that he was not the driver on that occasion and that someone called “Tony” was. Exhibit D92 comprises documents from the Board’s file relevant to this enquiry.
A daily trip record for the day in question with the name “Tony” recorded in handwriting as the driver’s name was provided to Ms Walters following her letter of request to the plaintiff dated 1 March 2001 (D92). It appears that the matter was not followed up with “Tony” or further followed up with the plaintiff. Ms Walters declared herself to be satisfied that the plaintiff was not the driver of the taxi on 20 February 2001. I am not so persuaded of this.
The plaintiff has denied that any of the daily trip records in exhibit P3 were completed by him or were referable to a shift driven by him. The plaintiff has also denied that the trip records in exhibit D73 dated 8 August 2002 (which records the plaintiff as the driver) exhibit D90 (that is, page 1585a of P3 dated 9 December 2000 and which also records the plaintiff as the driver) exhibit D89 (dated 15 September 2000 with no driver’s name recorded) and at page 1974 of P3 (being that relevant to the 3 September 2001 complaint (D91)) were his. Each of these trip records appears to be in the same handwriting. In addition, the trip record for 20 February 2001 provided to Abigail Walters (D92 and which records “Tony” as the driver) also appears to be in the same handwriting.
As I have indicated, I am satisfied, essentially by reference to the evidence given by Adrian Lee and Abigail Walters, that the trip records for 8 August 2002 (D73) 15 September 2000 (D89) 9 December 2000 (D90) and 3 September 2001 (D91 and page 1974 of P3) relate to shifts driven by the plaintiff and were completed by him.[18]
[18] In making this finding, I have not relied on the fact that for two of these trip record sheets the plaintiff is recorded as the driver. There is no direct evidence as to when this (or the word “Tony”) was recorded or by whom. Given that a significant majority of the records in P3 have no name recorded, it is possible that these recorded names are later additions by someone – perhaps during the Transport Board investigation process.
It is possible to undertake a handwriting comparison between these (the “proved plaintiff trip records”) and the trip record for 20 February 2001 (D92 with “Tony” recorded as the driver) and the approximately 620 trip records in P3. No expert handwriting evidence was tendered. Furthermore, I am conscious of dicta to the effect that where a disputed writing (in this case a daily trip record) is a photocopy, expert evidence about the comparison should be adduced; Grayden v R[19] is often cited. In that case the only “evidence” of the disputed writing was a photocopy. Malcolm CJ, (after reviewing various authorities) held that this did not qualify as “a disputed writing” for the purposes of the Western Australian equivalent of s30 of the Evidence Act 1929 (SA).[20] However, the court in Grayden did not refer to any section or rule analogous to s45C of the Evidence Act (which modifies the best evidence rule).[21]
[19] (1989) WAR 208.
[20] That is, s31 of the Evidence Act 1906 (WA).
[21] It would seem that the Western Australian equivalent, s73A, was enacted only in 2000.
Section 45C(1) provides:
A document that accurately reproduces the content of another document is admissible in evidence before a court in the same circumstances, and for the same purposes as that other document (whether or not that other document still exists) [my emphasis].
Exhibit P3 and the other trip records in evidence were tendered by the plaintiff as photocopies of the originals and admitted without objection by the defendant. Both parties, at least tacitly, conceded that they were, for all relevant purposes, an accurate reproduction of the originals. I have had regard to the permissions and constraints provided for by s45C and find that the various daily trip records in evidence, insofar as is necessary or relevant, do accurately reproduce the respective originals.
In addition, Malcolm CJ’s view does not appear to have been embraced by the majority (Wallace and Smith JJ). In Grayden the photocopy of the disputed writing had been admitted as secondary evidence without objection. In these circumstances, their Honours’ only concern was that, in being asked to compare an original (undisputed) document with a photocopy of a disputed document, the jury should have been warned that it would be dangerous to come to a firm conclusion as to the authorship of the photocopied document in the absence of any expert evidence.[22] In this respect, I am mindful that the task before a criminal jury is to be satisfied beyond reasonable doubt whereas my task is to make findings of fact on the balance of probabilities. Furthermore, and without staying to develop these issues, there are conflicting authorities dealing with the above matters[23] and s30 of the Evidence Act, whilst permissive, is not a code on handwriting evidence.[24]
[22] At 217-218.
[23] See Cross 6th Australian ed at [39105] and, in particular, the article by Leslie Katz “Expert and Photographic Evidence of Authorship and Unavailable Disputed Writings” (1990) 7 Aust Bar Review 153.
[24] R v Mazzone (1985) 43 SASR 330.
I am conscious of the limitations and dangers associated with me, as a non-expert, undertaking a handwriting comparison without the assistance of expert evidence. Nevertheless, a trier of fact is entitled to reach conclusions about comparisons of disputed handwriting in the absence of any evidence on the topic, expert or non-expert.[25]
[25] Adami v R (1959) 108 CLR 605; Daley v R [1979] TasSR 75 at 82; R v Leroy [1984] 2 NSWLR 441 at 446; R v Mazzone (1985) 43 SASR 330.
A comparison of each of the proved plaintiff trip records strongly suggests that they have been completed by the same person. They contain a number of similarities including the manner in which the date is written (sloping nature and style of numerals) the manner in which the word “city” is written (particularly the letters “t” and “y” and, most particularly, the manner in which the word “airport” has been written. This last feature is strikingly unusual. The word has been written with an upper case “A”, lower case “i” and “r”, upper case “P”, lower case “o” and “r” and an upper case “T” – “AirPorT”. Furthermore, the shape of the letters and of the word itself are remarkably consistent across these exhibits.
I also have examined each of the daily trip records in exhibit P3 with these considerations in mind. I am satisfied that of the 620 or so trip records in exhibit P3 approximately 240, including the one which records “Tony” as the driver (D92), share these same features. This is likely to be a conservative figure because there are a number of other records that contain quite similar writing but which do not contain the tell-tale word “airport”.
There are other matters to note. Of the 620 or so records, only about 105 have a driver’s name recorded; approximately 515 record no driver’s name. The plaintiff’s name features on only 2 trip records (8 August 2002, D73 and 9 December 2000, p1585a of P3 and D90). The plaintiff’s brother’s name (Khosrow Fardi) features on none other than, possibly, a few where only initials are recorded and the name “Tony” features on only the one (20 February 2001, D92). As for this latter trip record, the shape and form of the word “Tony” would suggest that it was written by someone other than the person who completed the trip record itself. I find it surprising that there is only one trip record in existence which records “Tony” as driver and that it happens to be one provided to the Passenger Transport Board as evidence that it was not the plaintiff about whom a passenger complained.
A final matter of note is that there are lengthy periods between 13 July 2000 (date of accident) and 31 May 2004 (cessation of taxi business) during which there are no records in evidence. For example, there are no records in evidence from 13 July 2000 to 9 December 2000 (approximately 5 months) 29 September 2001 to 1 January 2002 (3 months) 24 March 2002 to 7 October 2002 (more than 6 months) 25 November 2002 to 10 February 2003 (more than 2 months) 16 February 2003 to mid-May 2003 (3 months) 1 June 2003 to 21 October 2003 (more than 4 months) and 26 October 2003 to 17 December 2003 (approximately 2 months). In other words, over the slightly more than 46 months from 13 July 2000 to 31 May 2004, there are more than 25 months for which no records are in evidence. In addition, no trip records are in evidence for the 7 month period late 1999 (commencement of the taxi business) to 13 July 2000 (date of accident). Accordingly, the trip records that are in evidence offer no assistance on the question of the extent to which the plaintiff drove the taxi prior to the accident as compared with the extent of his driving after the accident.
Findings
In addition to findings already recorded in these reasons, in particular, those at paragraphs [15], [46], [55], [56], [64], [65], [74], [85], [95], [96], [98], [105], [106], [108], [111], [119], [125], [129], [130], [131], [132], [133], [159], [177], [178], [180], [182], [183], [184], [190], [191], [196], and [202], I make the findings and conclusions set out in the following sub-paragraphs.
(i)I am satisfied, based on the evidence of Dr Michael Lee and the contemporaneous documentary evidence, that prior to the accident in July 2000, the plaintiff had been experiencing symptoms of post traumatic stress disorder and suffering from depression. I do not accept the evidence of the plaintiff, his wife Nohshah and his brother Khosrow Fardi to the extent that it is inconsistent with this finding. For reasons earlier given, I find the evidence of Mahmoud and Dalshad Zhalaye to be of no assistance on this issue. I am unable to make any findings as to the extent to which, if at all, these conditions physically disabled the plaintiff or prevented him from operating full-time as a taxi driver. However, I do find that the plaintiff was certified as totally unfit for any work for substantial periods of time during 1999 (D12).
(ii)I am satisfied that the accident on 13 July 2000 involving the plaintiff and the defendant was a low speed, low impact rear end collision; the type of collision that might occur many times a week on Adelaide’s roads and from which drivers typically emerge unscathed. Of course, experience confirms that such low impact events do have the potential to cause immediate or late onset soft tissue injuries including to the neck, shoulder and back leading to significant disability and which can be or become resistant to treatment and resolution.
(iii)I am satisfied that immediately after the accident, the plaintiff experienced no or at most minimal and temporary physical discomfort and did not seek any medical assistance for four days. As to the position thereafter, see further the finding at (xi).
(iv)I am satisfied that after the accident and until at least May of 2004, the plaintiff continued to drive his taxi for reward. It is not possible on the evidence before me to determine the full extent of the plaintiff’s driving throughout that period. However, I am satisfied that it was substantial and considerably more than the plaintiff would admit to, that is, once or twice a week from time to time when a relief driver was unavailable. I indicate that I would reach the same conclusion even in the absence of the analysis of the trip records in exhibit P3 set out above.
(v)I am satisfied that the plaintiff deliberately mislead Drs Dounas and Harvey and Mr Munyard about the extent to which he had been, in fact, driving the taxi as a taxi after the accident.
(vi)I am satisfied that the plaintiff deliberately mislead Drs Dounas, Harvey and Gould-Hurst and Mr Munyard as to the extent of his physical incapacity and inability to drive a motor vehicle after the accident.
(vii)I am satisfied that the plaintiff deliberately mislead Drs Schultz (August 2001) and Herbert (August 2006) about his extensive medical history, when they certified him medically fit to renew his driver accreditation. The fact that both these doctors, in reliance on an interview and a medical examination, were prepared to so certify, alone, causes me seriously to doubt that the plaintiff in August 2001 and August 2006 was physically unable to pursue the occupation of taxi driving.
(viii)I am satisfied that the plaintiff either knowingly allowed the Commonwealth Bank (D13) Royal Guardian Mortgage Corporation Pty Ltd (D27) Colonial –Commonwealth Bank (D30) and CommInsure – Commonwealth Bank (D34, D36) to be mislead as to a number of aspects of the plaintiff’s financial circumstances and employment history or to the extent that these representations were true he has knowingly mislead the court.
(ix)I am satisfied that the plaintiff’s physical capabilities, as demonstrated by his capacity to drive the taxi to the extent he in fact did, by the car repair work he was able to undertake as shown on the film and by his other physical activities as shown in the film, including in particular his pulling of the trailer, were far greater than the plaintiff, at any time, lead Drs Dounas, Harvey and Gould-Hurst and Mr Munyard to understand.
(x)I am satisfied that the plaintiff failed to tell Dr Harvey about his family’s true financial circumstances, particularly the fact that he had purchased a house and was able to service and refinance the mortgage loan.
(xi)Ultimately, the plaintiff has proved to be a most unsatisfactory witness. For reasons already given. I do not accept the evidence given by various members of his family purporting to corroborate his account of his physical incapacities. The plaintiff has not satisfied me, on a balance of probabilities, that he suffered anything other than temporary physical discomfort as a result of the car accident in July 2000. I am not satisfied that the accident caused (or exacerbated any pre-existing) neck, back or shoulder pain to the extent recorded by and reported on by the plaintiff’s various medical practitioners. To the extent that the plaintiff may have suffered some neck, back or shoulder pain, I am not satisfied that it prevented him at any time from working full-time as a taxi driver.
(xii)Given my adverse findings concerning the plaintiff’s credibility and as to the extent to which his various medical practitioners were mislead, I reject the opinions expressed in their various reports as to the extent of the plaintiff’s physical incapacities.
(xiii)It is possible that the plaintiff does continue to suffer from depression and has done so for many years. I am not prepared to reject Dr Harvey’s opinion in this respect. If so, its onset is likely, in my view, to have pre-dated the accident. I am not satisfied that any such depression has been caused or exacerbated, directly or indirectly, by any physical injuries suffered by the plaintiff in the accident. I am not satisfied that any psychiatric illness or incapacity or any consequential inability to earn income experienced by the plaintiff after July 2000, if any, was caused by or can be attributable to the accident.
(xiv)In short, the answers to the three questions set out in paragraph [7] above are: “possibly”; “no, save for some minor and temporary physical discomfort”; and “no”.
In these circumstances, the plaintiff is not entitled to any damages award for non-economic loss.[26] Furthermore, I am not satisfied that the plaintiff suffered any loss of earning capacity as a result of, that is, caused by, the accident. The plaintiff has not established that he suffered any other financial loss as a result of, that is, caused by, the accident.
[26] Wrongs Act s35A(1)(a).
The Claim for an Extension of Time
The plaintiff’s summons and statement of claim were filed a little more than four months out of time.[27] Subsection 48(1) of the Limitation of Actions Act 1936 provides, insofar as is material, that a court may extend a limitation period “to such an extent, and upon such terms (if any) as the justice of the case may require”. However, there is no power to extend, in the present case, unless the court is satisfied of the matters set out in ss48(3)(b) of the Limitation of Actions Act. In the present matter, in order to obtain an extension of time, the plaintiff must satisfy the court that facts material to the plaintiff’s case were not ascertained by him until some point of time occurring within 12 months of the expiration of the period of limitation, that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff and that, in all the circumstances of the case, it is just to grant the extension of time.
[27] The statement of claim was filed a little more than three years and four months after the date of the accident; see s36 of the Limitations of Actions Act 1936. On the plaintiff’s case, physical injury was caused by the car accident in question within a matter of days of the accident.
In the statement of claim, the plaintiff has pleaded that a number of facts material to his case were not ascertained until various points in time occurring within 12 months before the expiration of the prescribed three year time limitation. These facts, as pleaded, are said to have been contained in a report of Mr Munyard dated 6 December 2002 (P75) and a report of Dr Harvey dated 12 May 2003 (P1).
I will assume for the moment, but without deciding, that the facts pleaded in paragraph (ii) on page 4 of the statement of claim and paragraph (iv) on page 5 of the statement of claim each qualify as “facts material to the plaintiff’s case” as that phrase is used in s48(3) of the Limitation of Actions Act.[28]
[28] I note that in the event that a finding would need to be reached on this issue, the requirements of ss(3a) would not apply. Section 48 was amended so as to include ss(3a) by Act number 9 of 2004 operational on and from 1 May 2004.
On this assumption, the two questions before the court are, were these facts not ascertained by the plaintiff until at some point of time within the 12 months before the expiration of the period of limitation and whether in all the circumstances of the case it is just to grant the extension of time.
It is pleaded in the statement of claim that the plaintiff became aware of the existence of the Munyard report of 6 December 2002 on or about 10 December 2002 and ascertained relevant facts contained in that report for the first time on or about 19 December 2002. It is also pleaded that the plaintiff became aware of the Harvey report of 12 May 2003 on or about 14 May 2003 and ascertained relevant facts contained in that report for the first time on or about 14 May 2003. If these allegations are borne out by the evidence, the plaintiff will have satisfied the first requirement noted above.
During the second day of trial and after some discussion between the bench and counsel for the defendant, counsel made a concession in open court to the effect that the defendant accepted that the plaintiff first became aware of the information set out in paragraphs (ii) on page 4 of the Statement of Claim and (iv) on page 5 of the Statement of Claim on or about 19 December 2002 and 14 May 2003 respectively.[29] However, later, the plaintiff in cross-examination said that he had not himself read any of Dr Harvey’s reports and that no one had read them to him nor had the contents of the reports been discussed with him. He also said that Dr Harvey did not tell the plaintiff what Dr Harvey had been thinking about his treatment. There was no cross-examination of the plaintiff on the issue of whether or not he had read Mr Munyard’s reports or whether or not those reports had been read to or discussed with him.
[29] Transcript at 111-112.
Having regard to the evidence of the plaintiff generally and on this topic in particular and having regard to the circumstances in which the defendant made the concession referred to above, I can place little, if any, weight on the defendant’s concession. Mr William Botten, the plaintiff’s solicitor at the time the statement of claim was filed, gave evidence on behalf of the plaintiff and with respect to this topic. His evidence was to the effect that he sent copies of the Munyard report of 6 December 2002 and the Harvey report of 12 May 2003 to the plaintiff soon after Mr Botten had received them. He sent them by post. After reference to his file notes, Mr Botten said that there was nothing in his correspondence with the plaintiff by way of explanation of the content of the reports.
However, Mr Botten had a long conference with the plaintiff on 15 May 2003 where counsel and Mr Botten discussed a number of matters “… including, touching upon the reports themselves”. He has no memory of the extent to which the reports were touched upon. Mr Botten acknowledged that, at the time, he had not had experience with dealing with an out of time personal injury matter. However, on the recommendation of Law Claims he did have a conference with counsel experienced with this issue once he realised that the claim was out of time. Mr Botten does recall telling the plaintiff that the claim was out of time, that he had met with a barrister and that an extension of time could be sought. He said “I don’t specifically recall telling him or explaining the new material fact. I would think I would have, but I don’t actually recall that”. He also has a recollection of discussing with counsel the availability of the two reports in question as satisfying the requirements for a new material fact or facts.
In the present case and in order for a “new material fact” to provide the basis for an extension of time, it must be one “not ascertained by [the plaintiff] until some point of time occurring within 12 months before the expiration of the period of limitation”. In this respect, it must be a fact ascertained by the plaintiff and not simply one ascertained by his agents or representatives such as his solicitors.[30] I am satisfied that both Mr William Botten and the experienced counsel with whom he consulted became aware of the matters contained in Mr Munyard’s report of 6 December 2002 and of the matters referred to in Dr Harvey’s report dated 12 May 2003. Whilst at that stage Mr Botten himself had no experience with out of time matters, I accept that he nevertheless was a solicitor of substantial experience who conducted his own general practice. I am also satisfied that counsel with whom he consulted with respect to the matter generally (Mr Mark O’Loughlin) and with respect to the concern that the claim had been allowed to fall out of time (Mr Jack Costello), were both experienced counsel in the area of personal injury litigation and limitation of actions problems generally. I am also satisfied that an experienced and ethical solicitor, such as Mr Botten, would not have drawn a pleading asserting that the plaintiff had ascertained for the first time certain matters if he had not taken steps which he reasonably believed would bring those matters to the plaintiff’s attention. I am also prepared to infer that a significant reason for holding a conference with the plaintiff and with counsel on 15 May 2003, some three days after receipt of the Harvey report of 12 May 2003, was to discuss with the plaintiff at least the latest report from Dr Harvey being that of 12 May 2003.
[30] Lovett v Le Gall (1975) 10 SASR 479 and Sola Optical Australia Pty Ltd v Mills (1987) 46 SASR 364.
On the basis of Mr Botten’s evidence and in reliance on the matters discussed immediately above, I accept that whilst Mr Botten has no specific recollection of having explained or arranged for counsel to explain to the plaintiff the new material facts to be relied on, it is more likely than not that he did. I make this finding notwithstanding that the plaintiff at trial had no recollection of this, at least, insofar as the Harvey report is concerned.
As I have already indicated, I accept for the present purposes but without deciding, that the new material facts pleaded and relied upon do qualify as “facts material to the plaintiff’s case” within the meaning of that phrase as it is used in s48 of the Limitation of Actions Act. As such, the remaining question before me is whether, in all the circumstances of the case, “it is just to grant the extension of time”. The defendant raised a number of arguments in support of its submission that in all of the circumstances it would not be just to grant an extension of time. Most of these are set out in some detail in the defendant’s written submissions provided at the end of the trial. If these were the only considerations before me, in my view but without staying to discuss them, I would not be satisfied that they form a sufficient basis to refuse an extension. At the end of the day, the plaintiff’s claim is only four months or so out of time.
However, given my finding that the plaintiff’s claim should be dismissed on the merits, it would not be just in my view to grant an extension of time under s48 of the Limitation of Actions Act. The plaintiff’s claim for relief filed on 20 November 2003 is out of time and the plaintiff’s application for an extension of time within which to institute the action is refused.
Conclusion
For the reasons set out above, the plaintiff’s claim is dismissed. I will hear the parties further on the issue of costs.
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