SOLICITORS: Brydens Law Office, Liverpool – Appellant Sparke Helmore, Sydney - Respondent
CATCHWORDS: APPEAL – adverse credibility finding – whether substantial wrong or miscarriage of justice occasioned – application of Supreme Court Act 1970 (NSW), s 75A and Supreme Court Rules, Part 51 r 23 EVIDENCE – Jones v Dunkel inference – the plaintiff’s evidence rejected as implausible or incredible – whether “no evidence” to support a necessary inference – compartmentalising evidence - need to consider cumulative effect, even if parts carried little weight – failure to call relevant witnesses
DECISION: 1. Allow the appeal and set aside the judgment of the District Court delivered on 15 February 2006 2. Remit the matter for a new trial in the District Court on all the issues 3. Order that the costs of the first trial abide the outcome of the retrial 4. Order that the Respondent pay the Appellant’s costs of the appeal 5. Grant the Respondent a certificate under the Suitors’ Fund Act 1951 (NSW), if not precluded by s 6(7).
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40112/06 DC 4939/04
MASON P SANTOW JA BASTEN JA
25 May 2007
Stephen KING v Mark Theo COLLINS
On 25 February 2002 the Appellant, Mr Stephen King, attempted to climb down from the driver’s cab of a prime mover, but slipped on the top step and fell heavily, injuring his back. The Appellant made a claim against the Respondent, Mr Mark Collins, the owner of the prime mover, alleging an injury caused by a motor accident. The Appellant claimed that the step was loose and that he had previously reported it to the Respondent’s employee. There was no evidence corroborative of the defect or of the reporting. At trial, the case on liability resolved itself into an issue of the Appellant’s credit as to whether the step was loose and gave way. The trial judge found for the Respondent.
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
King v Collins [2007] NSWCA 122
Case
[2007] NSWCA 122
Decision Date
CaseChat Overview and Summary
The appeal in *King v Collins* was brought before the Supreme Court of New South Wales by the plaintiff against the defendant, following a judgment in the District Court that dismissed the plaintiff's claim. The dispute centred on the plaintiff's assertion of a defective step on a vehicle and his report of this defect to the responsible mechanic.
The legal issues before the Court of Appeal included whether the trial judge's adverse credibility finding against the plaintiff was based on material factual errors, and if so, whether these errors constituted a substantial wrong or miscarriage of justice, thereby warranting intervention under section 75A of the *Supreme Court Act 1970* (NSW) and Part 51, rule 23 of the Supreme Court Rules. The Court also considered the application of the *Jones v Dunkel* inference in circumstances where relevant witnesses were not called, and the need to assess the cumulative effect of evidence rather than compartmentalising it.
The Court found that while the trial judge had valid reasons to doubt the plaintiff's testimony, significant factual errors were made in the reasoning process that led to the rejection of that evidence. These errors were deemed material to the credit findings, leading the Court to conclude that the trial had miscarried. The Court emphasised that even if parts of the evidence carried little weight, the cumulative effect and the failure to call relevant witnesses, such as Mr. Pierce and Mr. Craig, without explanation, needed proper consideration. The absence of evidence regarding the availability of these witnesses and the defendant's potential employment of them meant that any inference drawn from their non-appearance would carry little weight.
Consequently, the Court of Appeal allowed the appeal, set aside the District Court's judgment, and ordered a new trial on all issues. The costs of the first trial were ordered to abide the outcome of the retrial, and the respondent was ordered to pay the appellant's costs of the appeal, with a certificate granted under the *Suitors' Fund Act 1951* (NSW).
Orders
Orders of the court
1. Allow the appeal and set aside the judgment of the District Court delivered on 15 February 2006; 2. Remit the matter for a new trial in the District Court on all the issues; 3. Order that the costs of the first trial abide the outcome of the retrial; 4. Order that the Respondent pay the Appellant's costs of the appeal; 5. Grant the Respondent a certificate under the Suitors' Fund Act 1951 (NSW), if not precluded by s 6(7).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
However, the hypothetical example indicates why the issue was not critical in the present case. First, it appears to have been known that both parties sought to subpoena the defendant himself, but were unsuccessful in bringing him to Court: Judgment, p9. Reference to the failure of attempts to find Mr Collins also appear at Tcpt, p103. Further, the plaintiff was asked in re-examination whether he had seen Mr Craig, Mr Pierce or Mr Collins at the Court and said that he had not: Tcpt, p90. However, it was not clear that Mr Collins could have given evidence of direct relevance, because the plaintiff did not say he had spoken to Mr Collins at any stage about the defect: indeed, he denied that he had. The witnesses of more direct relevance were the mechanic, Mr Pierce, and the office co-ordinator, Mr Craig. They were fellow workers, at the time of the accident and, if they had been available, there is no suggestion that they might not have been called by the plaintiff, who was, apparently, prepared to subpoena Mr Collins. Indeed, there was an absence of evidence as to whether they still worked for the defendant or his business or company. No explanation was given as to their absence, either by the plaintiff or the defendant. If it could be inferred that they were still in the employ of the defendant, an inference might have been drawn from the failure of the defendant to call them, but in all the circumstances little weight could be attached to such an inference.Conclusions The trial of this matter involved, in relation to liability, a confined factual issue. The plaintiff gave evidence of the defective step on the vehicle and of reporting the defect to the mechanic responsible for keeping the defendant’s vehicles in good repair. There was, however, no evidence corroborative of the defect or of the reporting. To succeed, the plaintiff had to be believed as to both matters. There were significant reasons which would have allowed the trial judge to reject the plaintiff’s testimony. However, as noted above, there were also significant factual errors in the reasoning of the trial judge, on the basis of which he rejected the plaintiff’s evidence. Such factual errors would warrant the intervention of this Court, despite the fact that the case turned on findings of credit, if the errors were material. In my view, the errors were sufficiently material to the findings on credit to require this Court to conclude that the trial miscarried in a significant respect. If the plaintiff did not have his case considered in accordance with proper process, the rejection of his claim can be seen to involve a substantial wrong or miscarriage of justice. Whether a retrial would give rise to a different result is not something which this Court can determine; it is for that reason that a retrial is necessary. I would allow the appeal, set aside the judgment of the District Court in favour of the defendant and order that there be a retrial on all issues. In relation to the costs of the trial, his Honour’s order that the plaintiff pay the defendant’s costs, made on 15 February 2006, should also be set aside. Those costs should abide the outcome of the retrial.