King v Collins

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).