LACKOVIC -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2006] WASCA 38

Reported Decision:	(2006) 31 WAR 460
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 38
Court:	THE COURT OF APPEAL (WA)
Case No:	FUL:97/2003	Heard:	1 FEBRUARY 2006
Coram:	STEYTLER P PULLIN JA BUSS JA	Delivered:	10/03/06
No of pages:	50	Judgment Part:	1 of 1
Result:	Appeal allowed Retrial ordered
Category:	A
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Parties:	VLADIMIR LACKOVIC INSURANCE COMMISSION OF WESTERN AUSTRALIA
Catchwords:	Appeal Credibility of witness Trial judge's fact finding and reasoning erroneous Functions of appellate court Whether appellate intervention required Whether retrial should be ordered Discovery Witness statement the subject of legal professional privilege not referred to in discovery list Whether in those circumstances the party failing to discover the statement was obliged to produce it Admission of further evidence on appeal Principles involved Where copy of witness statement the subject of legal professional privilege (prior to and during the trial) provided after trial pursuant to an application made under the Freedom of Information Act 1992 (WA) Whether leave should be granted to adduce the witness statement in evidence on appeal
Legislation:	District Court of Western Australia Act 1969 (WA), s 79(1) Evidence Act 1906 (WA), s 79C Freedom of Information Act 1992 (WA), s 23(1) Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 7(3) Rules of the Supreme Court 1971 (WA), O 26 r 1, O 26 r 4(2), O 63 r 10(1), O 63 r 10(2) Supreme Court (Court of Appeal) Rules 2005 (WA), r 3(1), r 4 Supreme Court Act 1935 (WA), s 58(1)(a), s 167(1)
Case References:	Akins v National Australia Bank (1994) 34 NSWLR 155 Attorney-General (NT) v Maurice (1986) 161 CLR 475 Australian Electrical Electronics Foundry & Engineering Union Western Australian Branch v Hamersley Iron Pty Ltd (1998) 19 WAR 145 Aztec Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd (2005) 55 ACSR 1 Beamish v The Queen [2005] WASCA 62 Calcraft v Guest [1898] 1 QB 759 CDJ v VAJ (1998) 197 CLR 172 Cooke v Australian National Railways Commission (1985) 39 SASR 146 CSR Ltd v Della Maddalena [2006] HCA 1 Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63 Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49 Fox v Percy (2003) 214 CLR 118 Mann v Carnell (1999) 201 CLR 1 McCann v Parsons (1954) 93 CLR 418 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 Orr v Holmes (1948) 76 CLR 632 Scott v Scott (1863) 164 ER 1298 Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 2 NSWLR 340 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 The Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 Trade Practices Commission v Sterling (1979) 36 FLR 244 Weiss v The Queen [2005] HCA 81 Wentworth v Rogers (No 10) (1987) 8 NSWLR 398 Young v Kestel (as Executor of the Will and Estate of Douglas Tate Young (dec)) [2003] WASCA 190 Anderson v Bank of British Columbia (1876) 2 Ch D 644 Handley v Baddock [1987] WAR 98 Kennedy v Lyell (1883) 23 Ch D 387 Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1 Taylor v Batten (1878) 4 QBD 85

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LACKOVIC -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2006] WASCA 38 CORAM : STEYTLER P

PULLIN JA

BUSS JA

HEARD : 1 FEBRUARY 2006 DELIVERED : 10 MARCH 2006 FILE NO/S : FUL 97 of 2003 BETWEEN : VLADIMIR LACKOVIC

Appellant

AND

INSURANCE COMMISSION OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : JENKINS DCJ

Citation : LACKOVIC -v- STEVENSON & ANOR [2003] WADC 133

File No : CIV 1966 of 2002

(Page 2)

Catchwords:

Appeal - Credibility of witness - Trial judge's fact finding and reasoning erroneous - Functions of appellate court - Whether appellate intervention required - Whether retrial should be ordered

Discovery - Witness statement the subject of legal professional privilege not referred to in discovery list - Whether in those circumstances the party failing to discover the statement was obliged to produce it

Admission of further evidence on appeal - Principles involved - Where copy of witness statement the subject of legal professional privilege (prior to and during the trial) provided after trial pursuant to an application made under the Freedom of Information Act 1992 (WA) - Whether leave should be granted to adduce the witness statement in evidence on appeal

Legislation:

District Court of Western Australia Act 1969 (WA), s 79(1)

Evidence Act 1906 (WA), s 79C
Freedom of Information Act 1992 (WA), s 23(1)
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 7(3)
Rules of the Supreme Court 1971 (WA), O 26 r 1, O 26 r 4(2), O 63 r 10(1), O 63 r 10(2)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 3(1), r 4
Supreme Court Act 1935 (WA), s 58(1)(a), s 167(1)

Result:

Appeal allowed

Retrial ordered

Category: A

(Page 3)

Representation:

Counsel:

Appellant : Mr I L K Marshall

Respondent : Mr B C Sierakowski

Solicitors:

Appellant : Kakulas & Kakulas

Respondent : Brian C Sierakowski

Case(s) referred to in judgment(s):

Akins v National Australia Bank (1994) 34 NSWLR 155
Attorney-General (NT) v Maurice (1986) 161 CLR 475
Australian Electrical Electronics Foundry & Engineering Union Western Australian Branch v Hamersley Iron Pty Ltd (1998) 19 WAR 145
Aztec Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd (2005) 55 ACSR 1
Beamish v The Queen [2005] WASCA 62
Calcraft v Guest [1898] 1 QB 759
CDJ v VAJ (1998) 197 CLR 172
Cooke v Australian National Railways Commission (1985) 39 SASR 146
CSR Ltd v Della Maddalena [2006] HCA 1
Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63
Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49
Fox v Percy (2003) 214 CLR 118
Mann v Carnell (1999) 201 CLR 1
McCann v Parsons (1954) 93 CLR 418
Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116
Orr v Holmes (1948) 76 CLR 632
Scott v Scott (1863) 164 ER 1298
Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 2 NSWLR 340
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
The Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816
Trade Practices Commission v Sterling (1979) 36 FLR 244
Weiss v The Queen [2005] HCA 81

(Page 4)

Wentworth v Rogers (No 10) (1987) 8 NSWLR 398
Young v Kestel (as Executor of the Will and Estate of Douglas Tate Young (dec)) [2003] WASCA 190

Case(s) also cited:

Anderson v Bank of British Columbia (1876) 2 Ch D 644
Handley v Baddock [1987] WAR 98
Kennedy v Lyell (1883) 23 Ch D 387
Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1
Taylor v Batten (1878) 4 QBD 85

(Page 5)

1 STEYTLER P: I have had the advantage of reading the judgment of Buss JA. I agree with it and with his conclusion that the appeal should be allowed and a retrial in the District Court ordered. There is nothing I wish to add.

2 PULLIN JA: I have had the advantage of reading a draft of Buss JA's reasons for decision. I agree with the orders proposed and, subject to what I say below by way of comment on the law governing the admission of fresh evidence on an appeal and one point of difference about the reception of fresh evidence, I agree with his Honour's reasons.

3 In CDJ v VAJ (1998) 197 CLR 172 the statutory provision under consideration (s 93A(2) of the Family Law Act) authorised the Family Court to receive further evidence on appeal. It was one which was not hedged around with qualifications. It provided that the Court could in "its discretion" "receive further evidence" upon questions of fact.

4 McHugh, Gummow and Callinan JJ, at [98] to [100], contrasted s 93A(2) with the position at common law and the English statutory provisions contained in the Matrimonial Causes Act 1857 and 1858 governing applications for grants of rules nisi for new trials relevant to the decision in Scott v Scott (1863) 164 ER 1298. Their Honours there said at [99]:

"The statutes of 1857 and 1858 are examples of legislation which adopted the procedures of the common law courts, hence the reference by Lord Penzance to what was done in those courts in Westminster Hall."

5 Kirby J in CDJ v VAJ referred to s 93A(2) and said at [186]):

"The subsection emphasises that what is involved in admitting further evidence is the exercise of a discretion by the Full Court. It is a discretion which is not, in terms, hedged about by adjectives. Unlike the rules of the English High Court … which have given birth to, or influenced, statutory and rule provisions common to most of the superior courts of record of Australia … (

Rules of the Supreme Court (WA)

O 63 r 10(1)) the powers of the Full Court of the Family Court are not restricted in this regard either to the establishment of 'special grounds' or to the procedural requirement of 'special leave'. This point of differentiation requires that considerable care be exercised in relying upon the decisions of other courts, of England, Australia and elsewhere, when dealing with the reception of fresh

(Page 6)

evidence. Ordinarily, such courts are obliged to be satisfied that there is something 'special' about the case in order to justify the reception of fresh evidence. For the Family Court, the Parliament has left the decision to 'its discretion'. Furthermore, it has, apparently deliberately, refrained from describing the 'evidence' in question as 'new', 'fresh', or by some other appellation suggesting that it was not earlier available. It is enough that it is '

further

evidence upon questions of fact'. … It is inappropriate that the discretion of the Full Court to receive further evidence should be circumscribed by reference to limitations contained in other legislation, but not expressed in the Act. "

6 I would therefore conclude that what is said in CDJ v VAJ about s 93A(2) of the Family Court Act cannot be applied to O 63 r 10(1), which does "hedge around" the discretion to receive further evidence on an appeal by requiring that "special grounds" be established and that "special leave" of the court must be obtained. I note that in McCann v Parsons (1954) 93 CLR 418, Dixon CJ, Fullagar, Kitto and Taylor JJ said at 430 - 431 that:

"The grounds upon which the court proceeds in granting the remedy …have never become completely stereotyped; they have always possessed some flexibility and have been governed by the overriding purpose of reconciling the demands of justice with the policy in the public interest of bringing suits to a final end. …"

This was said in a common law context and McHugh, Gummow and Callinan JJ in

CDJ v VAJ

referred to this passage with approval.

7 None of the above means, in my opinion, that O 63 r 10(1) is to be read as equivalent to a provision like s 93A(2) of the Family Court Act. The express provisions of O 63 r 10(1) cannot be ignored. It is the statutory provision - O 63 r 10(1) - which must govern the reception of fresh evidence when that provision applies. The view of the High Court in relation to a different statutory provision cannot be used to overlook the express requirements of O 63 r 10(1).

8 I therefore conclude that the test enunciated by Malcolm CJ in Australian Electrical ElectronicsFoundry & Engineering Union Western Australian Branch v Hamersley Iron Pty Ltd (1998) 19 WAR 145 and accepted by the court in Young v Kestel (as Executor of the Will and Estate of Douglas Tate Young (dec)) [2003] WASCA 190 are

(Page 7)

applicable until overruled, just as Heydon JA in

Nowlan v Marson Transport Pty Ltd

(2001) 53 NSWLR 116 concluded that

Akins v National Australia Bank

(1994) 34 NSWLR 155 continues to bind the New South Wales courts until overruled. No party attempted to argue that

Australian Electric Electronics

Young v Kestel

should be overruled.

9 I agree with Buss JA however, that even if the tests for admission of fresh evidence set out in those cases are not satisfied, that the court must still ask whether it is just to admit the further evidence. If the needs of justice in the particular case require the reception of further evidence, then special grounds will be made out and special leave will be granted.

The Barrell statement

10 The Barrell statement of 23 December 1999 could not with reasonable diligence have been procured by the appellant before the trial for the reasons given by Buss JA. Thus, the second limb of the test in Australian Electrical Electronics (or the first condition in Akins) is satisfied. Because the trial Judge placed great importance on Mr Barrell's evidence, I am of the opinion that if Mr Barrell's apparently credible statement of 23 December 1999 had been available and adduced at the trial, the trial Judge would have had much less confidence in Mr Barrell's evidence and that it would then have been highly likely (but of course not certain) that her Honour would have reached the conclusion the judgment should have been entered for the appellant, particularly if the other errors identified by Buss JA had not been made by her Honour.

11 I would therefore conclude that special leave should be granted and the Barrell statement should be received as further evidence on this appeal. Even without the reception of that evidence, I have concluded that the appeal should be allowed for the reasons given by Buss JA. The Barrell statement merely strengthens my conclusion.

The Telstra, Police Service and St John's Ambulance documents

12 As to the other documents, it seems to me that with reasonable diligence they would have been available to the appellant before trial. Special leave should not be granted to allow the reception of that evidence and I agree with Buss JA that it is not otherwise just to allow the reception of this evidence in the appeal.

13 The appeal should be allowed and a retrial ordered.

14 BUSS JA: On 2 May 1999, at approximately 4.10 am, the appellant was driving a Mitsubishi Express van in a northerly direction on Marmion

(Page 8)

Avenue in Duncraig, Western Australia. His vehicle left the road and collided with a light pole, and he suffered serious injuries. The appellant was conveyed by ambulance to Joondalup Health Campus and, later that day, he was transferred to Sir Charles Gairdner Hospital.

15 The appellant commenced proceedings in the District Court against the respondent. The proceedings were brought under s 7(3) of the Motor Vehicle (Third Party Insurance) Act1943 (WA) ("the Act") which provides, relevantly:

"Where the driver of a motor vehicle has caused death or bodily injury by negligence, being death or bodily injury directly caused by, or by the driving of, a motor vehicle but the identity of the vehicle cannot be ascertained, any person who could have obtained a judgment in respect of the death or bodily injury so caused against that driver may obtain by action against the Commission the judgment which, in the circumstances, he could have recovered against the driver of the vehicle: …"

16 The appellant pleaded in par 8 of his statement of claim, relevantly, that shortly prior to the collision:

" … an unidentified motor vehicle was travelling in a northerly direction in Marmion Avenue in the said State when it cut across in front of the Plaintiff's vehicle causing the Plaintiff to brake and swerve to the left to avoid colliding with the vehicle. The Plaintiff lost control of his vehicle and it left the road and hit a light pole. …"

17 The appellant then pleaded that the collision was caused by the negligence of the unidentified driver and that in consequence of the collision the appellant was injured and suffered loss and damage.

18 The respondent, in its defence, denied the existence of an unidentified motor vehicle, as alleged in par 8 of the statement of claim. The respondent also pleaded, in par 3 and 5 of its defence, that the appellant lost control of his motor vehicle and that his negligence was the sole cause of the collision.

19 The proceedings were tried before her Honour, Judge Jenkins. The trial was confined to the issue of whether the respondent was liable or not. The learned Judge held:

"I am not satisfied that on the balance of probabilities that the plaintiff has proved that an unidentified vehicle driven by an

(Page 9)

unidentified person was involved in the accident on 2 May 1999."

20 Her Honour therefore dismissed the appellant's claim.

Uncontested facts

21 Numerous facts were not contested. They included, relevantly, the following:

(a) As at 2 May 1999 the appellant was 61 years of age.

(b) Piper Enterprises Pty Ltd, a company controlled by the appellant and his wife, operated a delicatessen business in Padbury, Western Australia.

(c) The delicatessen had a security alarm and it was not unusual for the appellant to receive telephone calls in the early hours of the morning from a security company, which monitored the alarm, to inform him that the alarm had sounded and there may be an intruder on the premises. On these occasions the appellant would drive to the delicatessen to ensure that the premises were secure.

(d) On 2 May 1999, at approximately 4 am, the appellant's sleep was disturbed by a telephone call from the security company. He was informed that the security alarm had sounded at the premises. The appellant dressed, splashed water on his face and commenced to drive to the delicatessen.

(e) During the evening of 1 May 1999 and the early hours of 2 May 1999 it had been raining in Duncraig. When the accident occurred there was drizzle, but it had been raining heavily earlier that morning and the previous evening.

(f) In the vicinity of the accident, Marmion Avenue is a divided thoroughfare. The northbound carriageway comprises two lanes which together are 7.6 metres in width. The edge of the left-hand lane is marked by a solid white line. A broken white line demarcates the two lanes.

(Page 10)

(g) The collision occurred a short distance before a T-junction between Marmion Avenue and Marri Road. Marmion Avenue is the continuing thoroughfare and Marri Road the terminating thoroughfare.

(h) In the vicinity of the accident, there is a right-hand turning lane for use by motor vehicles travelling in a northerly direction on Marmion Avenue that wish to turn right into Marri Road.

(i) The appellant's motor vehicle left Marmion Avenue on the westerly side of the thoroughfare. It travelled across a 2.4 metre bitumen verge and continued in a north-westerly direction on a grassed verge until it collided with the light pole. The light pole was approximately 2.9 metres from the edge of the bitumen verge. The appellant's vehicle travelled a distance of approximately 11.4 metres from the point where it left the bitumen verge to the point where it struck the light pole. The light pole is approximately 27 metres south of the point in Marmion Avenue which is opposite the middle of Marri Road.

(j) There were numerous large shrubs and trees on the grass verge in the vicinity of Marmion Avenue where the accident occurred, but they did not obscure a driver's view of the thoroughfare. The road surface was in good condition.

(k) The appellant was not thrown from his motor vehicle by the force of the collision.

(l) Shortly after the accident, Craig Barrell arrived at the accident scene and assisted the appellant until an ambulance and the police attended. Mr Barrell resided at 31 Acacia Way, Duncraig. The fence on the eastern boundary of his property is adjacent to Marmion Avenue. The fence on the northern boundary of his property is parallel with Marri Road.

(m) Glen Rogers, a neighbour of Mr Barrell, arrived at the accident scene several minutes after Mr Barrell. He also assisted the appellant.

(Page 11)

(n) The ambulance and the police arrived at the accident scene approximately 10 minutes after the accident and, as I have mentioned, the appellant was conveyed to Joondalup Health Campus. The appellant's injuries included injuries to his neck and shoulder, trauma to his chest, a lumbar spine injury, fractured ribs, injuries to his knee, a fractured right clavicle, collapsed lungs and myocardial contusions. He was, however, conscious at the accident scene and he remained conscious for some time after his arrival at Joondalup Health Campus.

(o) On 20 June 1999 the appellant was interviewed by the police and made a statement in which he said, relevantly:

"I can't remember leaving or anything before this day, the only thing I remember is waking up in Sir Charles Gairdner Hospital about a week later. I don't remember nothing about any crash at all."

(p) On 29 June 1999 the appellant signed a motor vehicle accident claim report for submission to his insurers, CGU Insurance Ltd. The claim report was completed by the appellant's insurance broker, Bryan Moore. The appellant provided Mr Moore with certain information and Mr Moore completed the report on the basis of the information provided, and the appellant signed it. In a section of the claim report headed "How did the accident happen?" Mr Moore wrote the following:

"tp (?) came out of side street (?) forcing me to avoid collision and struck lamp post."

The abbreviation "tp" denotes third party.

(q) By letter dated 10 September 1999 the appellant's solicitors gave notice to the respondent of his claim under s 7(3) of the Act. In the letter it is stated, relevantly, that another car "passed" the appellant and "suddenly cut across" in front of the appellant's vehicle.

(r) On 2 December 1999 the appellant made a statutory declaration before Anthony Napier, an insurance investigator retained by the respondent, and in the

(Page 12)

presence of his (the appellant's) solicitor. In the statutory declaration the appellant stated, relevantly:

"…

25) I was driving in the middle of my lane or even to the left a bit.

26) I had a clear straight flat road ahead to Marri Rd. The road goes a bit to the left.

27) Speed limit on Marmion Avenue is 80 kph.

28) I estimate my speed at about 75 kph before the crash. I had not changed gears long before the crash.

29) I do not remember if I checked my rear vision mirrors as I went down the road. I do not remember there being lights behind me.

30) I was keeping a straight path, then I saw a car beside me to my right.

31) I saw the car through my side window which was up.

32) The car looked like it was halfway into my lane and cutting into my lane. It was cutting in front of me.

33) I turned my head and I saw a male person with long hair in the left front seat. It was long messy hair.

34) The person had both hands up and looked like he was throwing something towards me. His side window was open and his head was half out of the window and his hands were half out as well.

35) I do not know if he threw anything but it was like throwing.

36) I did not hear anything. His mouth was open.

(Page 13)

37) My reaction was to put my footbrake on and I steered to the left but I do not know how much. I did not do a full lock turn to the left.

38) I just tried to avoid the other car.

39) If I did not brake and swerve there would have been a collision.

40) I did not have time to think about if my van would go off the hard surface.

41) I lost control of the van when I braked and steered left. I do not remember the van leaving the bitumen.

42) Then I remember a bang noise but whether it was hitting the car or something else I do not know.

43) I just remember the one bang.

44) I did not put my foot on the wrong pedal.

45) Then I remember calling out for help, and there was some red flashing lights around.

46) I do not remember speaking to anyone.

47) I do not remember being taken out of the van.

48) I can't remember much after the crash. I remember the police asking me for a blood test.

49) I was taken to Joondalup Hospital and then SCGH.

50) After I got out of hospital the police came and took a statement from me at my home on 20/6/1999.

51) At that time I did not remember anything about the crash.

52) It was at some time later on that I remembered what happened.

(Page 14)

53) I then rang the police at Joondalup and told them but they did not want any more statement because I did not have the number plate.

…

59) The other car looked like a creamy color [sic] (from seeing the bonnet) medium sized. I never saw the number plate or the driver.

60) I do not know if my car hit the other or not.

61) I saw no other cars on the road before the crash.

…"

The appellant's evidence

22 The appellant's evidence at trial was, relevantly, as follows:

(a) He had a current recollection of the accident.

(b) His recollection was that he was driving in a northerly direction on Marmion Avenue in the left-hand lane of the thoroughfare when a cream-coloured small sedan, also travelling in a northerly direction on Marmion Avenue, but in the right-hand lane, drew level with him and moved into his lane.

(c) He saw someone, probably a male, sitting in the front passenger seat of the small sedan. This person had his hands in front of his face, as if to throw something at the appellant. He did not see what, if anything, this person had in his hands.

(d) The small sedan continued to move into the lane in which the appellant was travelling and, in order to avoid a collision, he braked slowly and moved to the left.

(e) The small sedan forced him from the road and caused the accident.

(f) The speed limit in Marmion Avenue in the vicinity of the accident is 80 kilometres per hour, and at the material time he was travelling at approximately 75 kilometres per hour.

(Page 15)

(g) He did not have any recollection of being in hospital until approximately 7-10 days after his admission to Sir Charles Gairdner Hospital.

(h) He had no recollection of speaking to anyone on 2 May 1999 (that is, the day of the accident).

(i) When he was interviewed by the police on 20 June 1999 he had no recollection of the accident.

(j) On 29 June 1999, when he spoke to Mr Moore and signed the claim report completed by Mr Moore, he did not have any recollection of the accident. He informed Mr Moore that his account of the accident on that occasion was based upon what other people had told him he had said about the circumstances of the accident. In particular, the appellant said in cross-examination:

"I told Bryan Moore that they told me the vehicle cut me – that I told him the vehicle cut me off there on Marmion Road … That's why I think he put the question marks and things because I have no recollection, but they told me it doesn't matter: …"

The reference to "question marks" is to the question marks used by Mr Moore when he completed that part of the claim report which required an explanation as to how the accident happened. See par 21(p) above.

(k) In about August 1999 he began to recall the circumstances of the accident. He attributed this occurrence to a reduction in his medication and, possibly, better sleeping. Shortly after he began to recall the circumstances of the accident he reported that fact to the police.

(l) He did not know whether the small sedan ever made contact with his vehicle.

(m) He did not see the driver of the small sedan.

(n) The appellant denied that he felt tired at the time of the accident.

(Page 16)

(o) He denied attempting to reconstruct the circumstances of the accident.

The evidence of the appellant's wife

23 The appellant's wife gave evidence at the trial, relevantly, as follows:

(a) She arrived at Joondalup Health Campus at approximately 5 am on 2 May 1999.

(b) The appellant was in the emergency department for "a couple of hours" before he was moved to intensive care.

(c) After "a few hours" the appellant's condition deteriorated rapidly. He was placed into an induced coma so that he could be transported to Sir Charles Gairdner Hospital. He was taken to that hospital "during mid morning" on 2 May 1999.

(d) When Mrs Lackovic saw the appellant at Joondalup Health Campus she was able to converse with him. In examination-in-chief Mrs Lackovic said that the appellant "was very alert". In cross-examination she described his condition as follows:

"… he was shaking, you could see he was physically but he was alert. He knew what, you know, what was going on, what had happened."

(e) She had a discussion with the appellant about the circumstances of the accident. She asked him what had happened and he said that someone had "cut [him] off". He said this on several occasions. He did not know, however, who had "cut him off".

(f) Mrs Lackovic said in cross-examination that at Joondalup Health Campus:

" … I said, 'Where did they cut you off?' and he motioned, you know, what side so obviously – I presumed someone had come from his right."

She added that she did not know whether the other vehicle had come from Marri Road, and she said that at

(Page 17)

Joondalup Health Campus she did not discuss Marri Road with her husband.

The evidence of Tomislav Saicic

24 Mr Saicic, a friend of the appellant, visited him at Joondalup Health Campus during the "mid morning" of 2 May 1999. Mr Saicic described the appellant's condition at that time as follows:

"He was – he had a lot of cuts and bruises on the face. Had a lot of cables attached to him. Nurse was standing beside him and he was conscious."

25 Mr Saicic said he conversed with the appellant. In particular, Mr Saicic said in examination-in-chief:

"He was telling me where the accident happened, that somebody cut him off on Marmion Avenue just after Warwick Road, just past Warwick Road going to the shop."

26 Mr Saicic reiterated in cross-examination that the appellant had simply stated that somebody had "cut him off". Mr Saicic said he was with the appellant in the intensive care department for "probably 2 or 3 minutes at the most".

The evidence of Sean Killalea

27 As at 2 May 1999 Mr Killalea was a constable in the Police Service. He attended the accident scene. His evidence was, relevantly, as follows:

(a) The evening of 1 May 1999 and the morning of 2 May 1999 were "wet, windy, rainy".

(b) He could not recall any conversation with anyone at the accident scene on 2 May 1999.

(d) He did not have any notes of any conversations with anyone on 2 May 1999.

(e) As at 2 May 1999 he was "quite junior" in the Police Service.

(Page 18)

(f) He could not say whether the appellant's vehicle had "slewn sideways" into the light pole, but "from the bitumen, along the sandy verge or grass verge, there were skid marks indicating the direction the van had travelled. Whether it was sideways or at normal forward – I couldn't say …".

(g) In a report he prepared in relation to the accident Constable Killalea noted "excessive speed a contributing factor". He said in cross-examination, however, that he made this note because:

"At the time, just with the damage to the pole, the force needed to snap a large wooden pole would have, to me, at the time indicated possible speed involved …"

(h) He did not carry out an inspection of the appellant's vehicle.

(i) He could not recall whether anyone else, apart from the appellant, was present at the accident scene when he attended on 2 May 1999.

The evidence of Mr Rogers

28 The evidence of Mr Rogers was, relevantly, as follows:

(a) He awoke in consequence of the noise of the accident and also in consequence of what he described as "a distinctive flash".

(b) He arrived at the accident scene approximately five minutes later.

(d) He inquired of the appellant "how he felt", but there was no audible response apart from "groaning noises".

(e) He did not have any conversation with the appellant at the accident scene.

(Page 19)

The evidence of Mr Moore

29 I have mentioned that Mr Moore was the appellant's insurance broker and that Mr Moore completed the claim report dated 29 June 1999 on his behalf. See par 21(p) above. Mr Moore gave evidence, relevantly, as follows:

(a) The claim report was completed by Mr Moore and signed by the appellant at a meeting between them on 29 June 1999.

(b) Prior to the meeting Mr Moore knew nothing about the circumstances of the accident.

(c) At the meeting Mr Moore completed the claim report based upon information given to him by the appellant at the meeting.

(d) Mr Moore said in examination-in-chief that he placed question marks after the note "tp" (being an abbreviation for third party) and after the note "came out of side street" in the claim report (see par 21(p) above) because the appellant "was really unsure exactly what happened." Mr Moore then said:

"I don't believe he was unsure of the third party. The exact circumstances he was unsure of."

(e) Mr Moore said in cross-examination that it was his understanding from the information which the appellant gave him of the circumstances of the accident, that the other vehicle or third party had approached Marmion Avenue from Marri Road.

(f) The learned Judge asked Mr Moore a question as follows:

"When [the appellant] spoke to you, did he tell you that what was written down there was what he could remember of the accident or did he tell you that it was what someone else had told him had happened?"

Mr Moore's response was:

"No, it was definitely what he could remember."

(Page 20)

The evidence of Mr Barrell

30 Mr Barrell gave evidence, relevantly, as follows:

(a) On 2 May 1999 at 4.15 am he had been awake at his residence for at least half an hour. He had been attending to his elderly mother who was in poor health.

(b) It had been a very stormy and wet night and it was raining at 4.15 am.

(d) At approximately 4.15 am he heard "screeching of brakes" and then "a very loud bang" followed by "a second very loud thud". He said that these noises came from the direction of Marmion Avenue.

(e) He said that if he was awake in the early hours of the morning and in his bedroom, he was able to hear any motor vehicle travelling along Marri Road. He was able to distinguish between vehicles travelling on Marmion Avenue and vehicles travelling on Marri Road.

(f) After hearing the screeching of brakes, the very loud bang and the very loud thud, he ran from his bedroom to the back patio of his house. From the back patio he could see across Marmion Avenue.

(g) When he arrived at his back patio he could see the appellant's motor vehicle and that it had been in an accident.

(h) He estimated that the distance from his back patio to the accident scene was not more than 50 metres.

(i) He climbed the fence at the rear of his property and arrived at the accident scene.

31 The learned Judge made an unchallenged finding that upon Mr Barrell hearing the noise of the accident, 5 seconds elapsed until he arrived at his back patio, and another 30 seconds elapsed until he was at the accident scene.

(Page 21)

32 Mr Barrell's evidence in relation to other relevant matters was as follows:

(a) When he was on his back patio he did not see any other motor vehicle than the appellant's vehicle.

(b) He did not at any material time hear any "metallic sounds" as part of the noise of the accident.

(c) When he arrived at the accident scene he could not see any other motor vehicle than the appellant's vehicle in the vicinity.

(d) He said, in examination-in-chief, that by the time he arrived at his back patio "a vehicle, if there had … been one, may have had time to drive off, but I would have heard the sound of a vehicle on Marmion Avenue. There was no sound of any vehicle. It was just very quiet after the sound of the accident."

(e) He recollected that the condition of the appellant when he arrived at the accident scene was as follows:

"He appeared to be suffering from shock. He had blood on his face and every time he moved he let out very large groans. He was clutching his abdomen which I took a guess at being internal injuries and told him not to move."

(f) He also recollected that the appellant had said, on several occasions, "I must get to the shop. I need to get [

sic

] my shop," and that on a couple of occasions the appellant had said, "Get someone to ring my family. We've got to get to the shop."

(g) He gave evidence that the appellant attempted on several occasions to start the engine of his motor vehicle as though he was going to drive off.

(h) He said that the appellant did not make any mention to him of another motor vehicle.

(i) He said that the only other conversation he had with the appellant at the accident scene involved his attempting to reassure the appellant that there was help coming and his

(Page 22)

requesting the appellant, on several occasions, not to move and to relax.

(j) He inspected the appellant's motor vehicle at the accident scene and noted extensive damage on the right driver's side and to the rear of the vehicle. He said that the rear of the vehicle was amongst trees and bushes. There was a broken tree which he assumed had been knocked over by the appellant's vehicle.

(k) He was first requested to recall the events of 2 May 1999 several months later.

No expert evidence

33 Neither party led any expert evidence. It is remarkable that no expert medical evidence was called as to:

(a) the nature and extent of the appellant's injuries;

(b) the treatment the appellant received for his injuries; or

(c) whether a person who has suffered these injuries and received that treatment may lose his or her memory of the circumstances in which the injuries occurred, but subsequently regain that memory.

The learned Judge's reasoning

34 I have mentioned that the learned Judge was not satisfied on the balance of probabilities that the appellant had proved that an unidentified vehicle driven by an unidentified person was involved in the accident.

35 The issues raised on the appeal require an understanding of the learned Judge's reasoning in relation to her findings of fact and ultimate conclusion.

36 Plainly, a critical issue at trial was the appellant's credibility; in particular, whether his account of the involvement of an unidentified vehicle in the accident was reliable or not.

37 The learned Judge asserted that the truthfulness of the appellant's account in evidence "must be tested against all the surrounding circumstances". According to her Honour, these circumstances included:

(Page 23)

(a) the absence of evidence of any other vehicle being involved in the accident;

(b) the appellant's prior inconsistent statements; and

38 As to the first surrounding circumstance identified by the learned Judge, namely the absence of evidence of any other vehicle being involved in the accident, the learned Judge:

(a) accepted a statement in the police file relating to the accident that their examination of the appellant's vehicle did not find any evidence that another vehicle had collided with the appellant's vehicle;

(b) found that there was no evidence at the accident scene to indicate the involvement of another vehicle;

(d) stated that sounds one may expect to hear, consistent with the presence of another vehicle, would be "the other vehicle braking or accelerating or driving off at some speed".

39 The learned Judge concluded that the appellant's case required her to accept that another vehicle drove alongside the appellant and deliberately forced him from the road at a speed of approximately 80 kilometres per hour and then departed the scene without leaving any evidence and without being heard by Mr Barrell.

40 The learned Judge accepted Mr Barrell's evidence as highly credible, and found that it was highly unlikely that the accident could have occurred as stated by the appellant in evidence, without:

(a) Mr Barrell seeing or hearing the other vehicle; and

(b) the other vehicle leaving evidence at the scene or on the appellant's vehicle.

41 As to the second surrounding circumstance identified by the learned Judge, namely the appellant's prior inconsistent statements, her Honour said that:
(Page 24)

(a) it was not in dispute that on 20 June 1999 the appellant told the police that he could not remember anything of the accident; and

(b) on 29 June 1999:

"the plaintiff told Mr Moore that he could remember a third party coming out of a side street and forcing him to avoid a collision and striking the lamp post. I find that the plaintiff told Mr Moore that this was his recollection. However, that account is clearly inconsistent with what the plaintiff told the police some nine days earlier and inconsistent with what he said in his evidence."

42 The learned Judge noted that the appellant had explained that:

(a) he had merely related to Mr Moore what other people had told him he had said concerning the circumstances of the accident; and

(b) he had told Mr Moore that this was what he was doing.

43 In par 25 of her reasons, the learned Judge said:

"I find that the plaintiff told Moore that other people had told him that he had said that another car cut him off. The other people presumably being his wife and Mr Saicic referring to what the plaintiff had said at Joondalup Health Campus. The inference I draw from this evidence is that, if it is true, Mr Moore should have been aware that the plaintiff was merely telling him what he had said on a previous occasion, not what he could then remember. This is to be contrasted with Mr Moore's view. Mr Moore's view is that the plaintiff was recalling what he could remember of the accident."

44 The words "I find" in the first sentence of the passage I have quoted suggest that her Honour was making a finding of fact that the appellant had told Mr Moore that he was relating what other people had told him he had said. There are, however, three matters which indicate that her Honour did not accept the appellant's evidence in this respect. First, par 25 appears in a section of her Honour's reasons headed "Disputed evidence". Secondly, the balance of the passage I have quoted from par 25 is inconsistent with her Honour intending to make a finding of fact
(Page 25)

favourable to the appellant. And thirdly, in par 55 of her reasons, in a section headed "Findings with respect to the plaintiff's credibility", her Honour said:

" … I am satisfied that the plaintiff did not tell Mr Moore that it was other people's account of what he had told [them]. Rather he led Mr Moore to believe that it was his present recollection."

45 Accordingly, it is clear, in the context of the reasons as a whole, that her Honour found that the appellant had not told Mr Moore he was merely relating what other people had told him he had said, but rather had led Mr Moore to believe it was his present recollection.

46 The learned Judge also found that the appellant's evidence, that he related to Mr Moore what other people had told him he had said, was not credible in that his wife said in evidence she did not conclude, from what the appellant told her at Joondalup Health Campus, that the other vehicle had "come out of the side street".

47 The learned Judge then rejected the appellant's evidence that in about August 1999 his memory of the circumstances of the accident gradually revived so that by December 1999 he was able to describe the accident in detail. Her Honour rejected this evidence because, in her view, it:

" … does not accord with my experience of life or my common sense."

48 Her Honour noted that neither party had adduced any expert evidence to explain how the appellant's injuries or the trauma of the accident might cause him to lose his memory of the accident and then regain his memory in the manner which the appellant described in evidence.

49 The learned Judge added that even if she had accepted that it was possible for the appellant's memory to revive in the manner he had described, she did not accept that his revived memory was accurate and reliable.

50 The learned Judge then dealt with the evidence of the appellant's wife and his friend, Mr Saicic, as to what the appellant had told them at Joondalup Health Campus on 2 May 1999 in relation to the circumstances of the accident. This evidence of prior consistent statements by the appellant was admissible to rebut the respondent's imputation that his evidence in relation to the circumstances of the accident was fabricated

(Page 26)

after 2 May 1999 and prior to trial. See

Wentworth v Rogers

(No 10)

(1987) 8 NSWLR 398 at 401 - 402.

51 According to the learned Judge:

(a) What the appellant told his wife and Mr Saicic was "vague".

(b) The appellant's statements to them were made when he was in the emergency department or intensive care and his condition was deteriorating.

(c) The statements were not made to Mr Barrell or Mr Rogers and, apparently, were not made to the police at the accident scene.

52 Her Honour stated that in consequence she was not prepared to rely upon the statements made by the appellant to his wife and Mr Saicic on 2 May 1999 "as supporting [his] credibility to a sufficient extent". The learned Judge added that her conclusion in this respect was:

" … especially so in the light of the other inconsistent accounts that the plaintiff has given of the accident, his injuries and his acknowledgement that when he woke up in hospital he had no recollection of what had happened previously including what he had said to his wife or Mr Saicic."

53 The learned Judge then referred to what she described as "inconsistent accounts of the ability of the plaintiff to communicate in a rational manner after the accident". Her Honour explained this point as follows:

"Mr Rogers said he received no intelligible answer from the plaintiff. Mr Barrell said the plaintiff was behaving slightly irrationally. The plaintiff's wife said, on the other hand, that a short time later he was alert, intelligible and orientated. This was apparently shortly before his condition deteriorated to such an extent that the doctors induced a coma. I consequently do not accept Mrs Lackovic's evidence in this respect."

54 The learned Judge said that there were such inconsistencies in the evidence that she was not prepared to find that the appellant's credibility "[was] bolstered to such an extent by the statements he made to his wife and Mr Saicic" that she could rely upon his evidence at trial. Her Honour
(Page 27)

said that this was "particularly so" in the light of the findings she had made as to the absence of any evidence at the scene of another vehicle being involved in the accident.

55 The learned Judge found that on the morning in question the appellant was in a hurry to attend the delicatessen and return home, but her Honour held that it was unnecessary for her to make any findings as to how the accident occurred, and she did not do so.

The issues in the appeal

56 The issues in the appeal, as discerned from the amended grounds of appeal, are these:

(a) Did the learned Judge err in concluding from the evidence of Mr Barrell, the evidence at the accident scene and the condition of the appellant's vehicle after the accident, that an unidentified motor vehicle was not involved in the accident?

(b) Did the learned Judge err in her assessment of the appellant's statements to the police on 20 June 1999 and to Mr Moore on 29 June 1999 in relation to the circumstances of the accident?

(c) Did the learned Judge err in deciding that the appellant's evidence in relation to his memory of the accident reviving should be rejected because it did not accord with her experience of life or her common sense?

(d) Did the learned Judge err in failing to give any or sufficient weight to the evidence of the appellant's wife and Mr Saicic as to the statements made to them by the appellant at Joondalup Health Campus on the morning of 2 May 1999?

(e) In all the circumstances, did the learned Judge err in failing to be satisfied on the balance of probabilities that the appellant had proved that an unidentified vehicle driven by an unidentified person was involved in the accident?

57 The appellant made application to this Court for leave to adduce in the appeal further evidence which he contended was fresh evidence. The
(Page 28)

appellant also submitted that some of the further evidence should have been but was not discovered by the respondent prior to trial.

58 It is convenient first to consider the issues in the appeal by reference to the evidence adduced at trial and then to consider the application to adduce further evidence in the appeal. Prior to considering the issues in the appeal I will set out those principles relating to appellate review which are relevant to the appeal.

The relevant principles of appellate review

59 The learned Judge entered judgment on 9 June 2003 and the notice of appeal was filed on 30 June 2003.

60 At the material time s 79(1) of the District Court of Western Australia Act1969 (WA) permitted "[a] party to an action or matter [in the District Court] who is dissatisfied with … a final judgment" of that court, to appeal from the judgment to the Full Court of the Supreme Court constituted under the Supreme Court Act 1935 (WA). At the material time s 58(1)(a) of the Supreme Court Act conferred on the Full Court jurisdiction to hear and determine "applications for a new trial or rehearing of any cause or matter".

61 This appeal is a "CA matter" as defined in r 3(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) ("the Court of Appeal Rules"). By r 4(1), the Court of Appeal Rules apply to and in respect of any CA matter. Rule 4(2) provides:

"If when these rules commence a CA matter is pending before the Court of Appeal, [the

Rules of the Supreme Court 1971

(WA)] … as in force immediately before these rules commence, continue to apply to and in respect of the matter unless –

(a) under a direction given under subrule (3), any of these rules apply to and in respect of the matter; or

(b) a single judge orders that any or all of these rules shall apply to and in respect of the matter."

62 By r 4(3), the President of this Court may direct that some of the Court of Appeal Rules (specified in the direction) apply to and in respect of a class of CA matters (specified in the direction).

63 The Court of Appeal Rules came into operation on 2 May 2005. The effect of r 4(2)(a) of the Court of Appeal Rules is that the Rules of the

(Page 29)

Supreme Court

, as in force immediately before the

Court of Appeal Rules

commenced, apply to this appeal, subject to the President's Direction No 1 of 2005, which is not relevant for present purposes. No orders have been made in relation to this appeal under r 4(2)(b) of the

Court of Appeal Rules

64 Order 63 r 10(2) of the Rules of the Supreme Court (which was in force immediately before the Court of Appeal Rules commenced, but which was repealed upon their commencement) empowers this Court "to draw inferences of fact and to give any judgment, and make any order which ought to have been made, and to make such further or other order as the case may require".

65 The nature of the rehearing before this Court is as described by the High Court in Fox v Percy (2003) 214 CLR 118 at 125 [22]:

"The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits."

66 The requirements and limitations of a rehearing of the kind which occurs before this Court were described by Kirby J in CSR Ltd v Della Maddalena [2006] HCA 1 at [16] – [17]. His Honour said:

"The form of rehearing so provided 'shapes the requirements, and limitations, of such an appeal'. The relevant 'requirements' are that the appellate court is obliged to conduct a thorough examination of the record and a real rehearing. It is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors of fact-finding. Experience teaches that many errors of this kind arise at first instance, more perhaps than errors of law. Having conducted a rehearing as so described, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. This involves, where, as here, there is no jury, conducting a thorough review of the primary judge's reasons and engaging in the tasks of 'weighing conflicting evidence and drawing ... inferences and conclusions'.

The 'limitations' introduced into the rehearing based on the record of the trial are those necessarily involved in that form of appellate procedure. Such limitations include those occasioned

(Page 30)

by the resolution of any conflicts at trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole."

67 It is necessary to distinguish between the reasoning of a trial Judge which is based on a credibility determination on the one hand, and the reasoning of a trial Judge which is based on inferences drawn from facts that were undisputed or found by the trial Judge on the other. See Fox v Percy at 146 [88]. As Kirby J observed in CSR at [21] – [22]:

"Even in the case of expressed credibility findings, the statutory duty to conduct a real 'rehearing' remains. It may sometimes justify reversal of a decision by a primary judge who has 'failed to use or has palpably misused his advantage' or where 'incontrovertible facts or uncontested testimony' demonstrates the findings to be erroneous; or where they are 'glaringly improbable' and 'contrary to compelling inferences'.

However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be redetermined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It 'will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it'."

Did the learned Judge err in concluding from the evidence of Mr Barrell, the evidence at the accident scene and the condition of the appellant's vehicle after the accident, that an unidentified motor vehicle was not involved in the accident?

68 The learned Judge tested the truthfulness of the appellant's account of the involvement of an unidentified vehicle in the accident against various matters which her Honour described as "surrounding circumstances". These matters included:

(Page 31)

(a) Mr Barrell's evidence that he did not see or hear the other vehicle; and

(b) if there was another vehicle, it did not leave evidence at the accident scene or on the appellant's vehicle.

69 The learned Judge made an unchallenged finding that upon Mr Barrell hearing the noise of the accident, 5 seconds elapsed until he arrived at his back patio, and another 30 seconds elapsed until he was at the accident scene.

70 If there had been another vehicle which caused the accident as described by the appellant, and if the other vehicle had departed from the accident scene at an average speed of 75 kilometres per hour (being the speed at which the appellant said in evidence he was travelling immediately prior to the accident), it would have travelled approximately 104 metres after 5 seconds and approximately 729 metres after 35 seconds. Mr Barrell's evidence that he did not see another vehicle is therefore, at best, equivocal in relation to the appellant's credit. In my opinion, this evidence does not reflect adversely on the appellant's account of the accident.

71 Mr Barrell's assertion that he did not hear another vehicle is adverse to the appellant's account of the accident in the context of the learned Judge having accepted Mr Barrell's evidence that he could hear vehicles travelling along Marri Road, and he was able to distinguish between vehicles travelling on Marmion Avenue and vehicles travelling on Marri Road. It is likely, however, that if there had been another vehicle which caused the accident, and if it had been departing from the accident scene at an average speed of 75 kilometres per hour, it would have travelled some distance, at the rate of approximately 21 metres per second, before Mr Barrell's attention was focused on the vicinity of the accident scene by the screeching of brakes, the very loud bang and the second very loud thud. The learned Judge said that sounds a person in Mr Barrell's position may expect to hear "would be the other vehicle braking or accelerating or driving off at some speed". That is not necessarily so. There was, of course, no evidence as to the behaviour of any other vehicle after the accident. But the possibility of another vehicle leaving the accident scene at a relatively uniform speed of, say, 75 kilometres per hour, is equally as valid as the possibility of the other vehicle braking and then accelerating and departing from the accident scene at high speed.

(Page 32)

72 The learned Judge accepted a statement in the police file that an examination of the appellant's vehicle did not find any evidence to indicate that another vehicle had collided with the appellant's vehicle. Her Honour also held that nothing was found at the accident scene to indicate the involvement of another vehicle. Neither of these matters is surprising in the context of the appellant's account of the accident. The appellant did not say in evidence or in any prior statements that there had been contact between his vehicle and the other vehicle. Indeed, he said in evidence and in his statutory declaration made 2 December 1999 that he did not know whether the other vehicle had made contact with his vehicle.

73 The learned Judge concluded that it was:

" … highly unlikely that the accident could have occurred as the plaintiff stated in evidence without Mr Barrell either seeing or hearing the vehicle and without the other vehicle leaving any evidence at the scene or on the plaintiff's vehicle."

74 In my opinion, this conclusion was not reasonably open to the learned Judge to the extent that it was based on:

(a) Mr Barrell's evidence that he did not see another vehicle;

(b) there being no evidence at the accident scene of another vehicle; and

75 Mr Barrell's evidence that he did not hear another vehicle at or leaving the accident scene is some evidence against the appellant's account of the accident, but it does not, in my opinion, support a conclusion that the appellant's account was therefore "highly unlikely".

Did the learned Judge err in her assessment of the appellant's statements to the police on 20 June 1999 and to Mr Moore on 29 June 1999 in relation to the circumstances of the accident?

76 When the appellant was interviewed by the police on 20 June 1999 he had no recollection of the accident. The appellant's claimed absence of recollection as at 20 June 1999 is not necessarily adverse to his credit even though he gave an account of the accident to Mr Moore on 29 June 1999, in his statutory declaration made 2 December 1999 and in his evidence at trial. In my opinion, the appellant's claimed absence of recollection on 20 June 1999 compared with his subsequent accounts of

(Page 33)

the accident is adverse to his credit only if there was a proper basis for rejecting his evidence at trial that his memory revived in about August 1999.

77 The learned Judge preferred the evidence of Mr Moore to the evidence of the appellant. Her Honour found that at their meeting on 29 June 1999 the appellant told Mr Moore that another vehicle had forced him to avoid a collision, and in consequence his vehicle had struck a lamp post. Mr Moore said that it was his understanding, from the information which the appellant gave him, that the other vehicle had approached Marmion Avenue from Marri Road. Mr Moore also said that he did not believe that the appellant was unsure in relation to the involvement of another vehicle. Rather, he believed that the appellant was unsure of the exact circumstances of the accident. Mr Moore asserted that at the meeting on 29 June 1999 the appellant gave him his (the appellant's) own recollection of the accident. Further, according to Mr Moore, the appellant did not tell him that his account was merely what someone else had told him had happened.

78 In my opinion, the learned Judge was entitled to prefer the evidence of Mr Moore to the appellant in relation to the conversation at the meeting on 29 June 1999. The account of the accident which the appellant gave Mr Moore was consistent with his evidence at trial to the extent that it asserted the involvement of another vehicle in the accident, but was inconsistent in relation to the direction of travel of the other vehicle prior to the accident (that is, whether the other vehicle approached the appellant from Marri Road or Marmion Avenue).

79 The learned Judge noted that Mrs Lackovic said in evidence she did not conclude, from what the appellant told her at Joondalup Health Campus, that the other vehicle had "come out of the side street" (no doubt, a reference to Marri Road), whereas Mr Moore said he concluded, from what the appellant told him, that the other vehicle had approached Marmion Avenue from Marri Road. In my opinion, her Honour was entitled to find that this inconsistency reflected adversely on the appellant's credit.

Did the learned Judge err in deciding that the appellant's evidence in relation to his memory of the accident reviving should be rejected because it did not accord with her experience of life or her common sense?

80 The learned Judge rejected the appellant's evidence that in about August 1999 his memory of the circumstances of the accident gradually revived so that in his statutory declaration made 2 December 1999 he was

(Page 34)

able to describe the accident in detail. Her Honour rejected this evidence because, in her view, it:

" … does not accord with my experience of life or my common sense."

81 Her Honour did not inform the parties of, or state in her reasons, the particular experience of life which enabled her to reject the appellant's evidence in relation to the revival of his memory. Similarly, her Honour did not identify how her common sense enabled her to reject the appellant's evidence. Common sense is merely good practical sense about everyday affairs. In my opinion, her Honour's experience of life and common sense were not a proper basis for the rejection of the appellant's explanation that in about August 1999 his memory of the circumstances of the accident gradually revived. It was a matter in respect of which expert medical opinion could have been called, but, as I have mentioned, neither party led any expert evidence at trial.

Did the learned Judge err in failing to give any or sufficient weight to the evidence of the appellant's wife and Mr Saicic as to the statements made to them by the appellant at Joondalup Health Campus on the morning of 2 May 1999?

82 The learned Judge held that even if she had accepted that it was possible for the appellant's memory to revive in the manner he had described, she did not accept that his revived memory was accurate and reliable. According to her Honour:

(a) What the appellant told his wife and Mr Saicic was "vague".

(b) The appellant's statements to them were made when he was in the emergency department or intensive care and his condition was deteriorating.

(c) The statements were not made to Mr Barrell or Mr Rogers, and, apparently, were not made to the police at the accident scene.

83 In my opinion, an examination of the transcript of the evidence of Mrs Lackovic and Mr Saicic indicates that what the appellant told them was not, relevantly, "vague". The significant fact of which the appellant informed Mrs Lackovic and Mr Saicic at Joondalup Health Campus on 2 May 1999 was that someone had "cut him off". According to
(Page 35)

Mrs Lackovic, the appellant so informed her on several occasions. What he did not know was "who had cut him off". Similarly, Mr Saicic said that the appellant had stated that someone had "cut him off". The critical issue at trial was whether another vehicle had in fact forced the appellant's vehicle from Marmion Avenue and thereby caused the accident. What the appellant told his wife and Mr Saicic in relation to this critical point was definite and precise. In my opinion, it was not reasonably open to the learned Judge to conclude that what the appellant told his wife and Mr Saicic was, relevantly, "vague".

84 The appellant's wife gave the evidence in relation to the appellant's condition deteriorating at Joondalup Health Campus. No medical staff from Joondalup Health Campus were called as witnesses. It is important to appreciate that Mrs Lackovic's evidence was, relevantly, that:

(a) The appellant was in the emergency department for "a couple of hours" before he was moved to intensive care.

(b) The appellant's condition did not deteriorate rapidly until after "a few hours".

85 Plainly, the conversation between Mrs Lackovic and the appellant in relation to the appellant having been "cut off" occurred prior to his condition deteriorating rapidly, as described by Mrs Lackovic. It was not suggested to either Mrs Lackovic or Mr Saicic in cross-examination that their account of the appellant having told them that he was "cut off" was untrue. In my opinion, it was not reasonably open to the learned Judge to conclude that the appellant's statements to his wife and Mr Saicic that he was "cut off' were made when his condition was deteriorating and in consequence were unreliable.

86 It is true that the appellant did not tell Mr Barrell or Mr Rogers or, apparently, the police at the accident scene, of the involvement of another vehicle. Mr Barrell gave evidence of a conversation with the appellant but it was in relation to other matters. Mr Rogers said that he did not have a conversation with the appellant. Constable Killalea did not give any evidence of a conversation with the appellant at the accident scene. In my opinion, the fact that the appellant did not tell Mr Barrell or Mr Rogers or, apparently, the police at the accident scene, shortly after the trauma had occurred, that he had been "cut off" does not mean that statements to that

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effect made later to his wife and Mr Saicic at Joondalup Health Campus are unreliable.

87 The learned Judge did not make any adverse findings against Mrs Lackovic or Mr Saicic in relation to their evidence that the appellant told them that he was "cut off" (although her Honour did reject Mrs Lackovic's evidence in relation to the appellant having been "alert, intelligible and orientated").

88 In my opinion, it was not reasonably open to the learned Judge to refuse to rely on the statements made by the appellant to his wife and Mr Saicic on 2 May 1999 in consequence of the matters set out in par 82 above.

89 After the learned Judge stated that she was not prepared to rely on the statements made by the appellant to his wife and Mr Saicic, her Honour added that this conclusion was:

" … especially so in the light of the other inconsistent accounts that the plaintiff has given of the accident, his injuries and his acknowledgement that when he woke up in hospital he had no recollection of what had happened previously, including what he had said to his wife or Mr Saicic."

90 Her Honour refused to accept Mrs Lackovic's evidence that when she saw the appellant at Joondalup Health Campus he was, initially at least, alert, intelligible and orientated. Her Honour rejected Mrs Lackovic's evidence in this respect because it was inconsistent with evidence from Mr Rogers and Mr Barrell as to their perception of the appellant's condition at the accident scene. Her Honour referred to Mr Rogers having said he received no intelligible answer from the appellant. Relevantly, Mr Rogers said he inquired of the appellant "how he felt", but there was no audible response apart from "groaning noises". Mr Rogers did not have any conversation with the appellant at the accident scene. Her Honour referred to Mr Barrell having said that the appellant was behaving "slightly irrationally". This, presumably, is a reference to Mr Barrell's evidence that:

(a) The appellant had said, on several occasions, "I must get to the shop. I need to get [

sic

] my shop," and that on a couple of occasions the appellant had said, "Get someone to ring my family. We've got to get to the shop."; and

(Page 37)

(b) The appellant attempted on several occasions to start the engine of his vehicle as though he was going to drive off.

91 In my opinion, the statements which the appellant made to Mr Barrell do not, of themselves, indicate that the appellant was without, or deprived of, any logical and reliable thought processes. Certainly, his statements that he needed to get to the delicatessen, and his attempts to start the engine of his vehicle with a view to continuing his journey, demonstrate that the appellant did not appreciate the seriousness of his injuries or the significant damage to his vehicle. Otherwise, his statements reveal his concern to ensure that the delicatessen was secure and that someone should telephone his family and arrange for them to attend the premises. In my opinion, the evidence of Mr Rogers and Mr Barrell as to the condition of the appellant at the accident scene provides some basis, but not a compelling foundation, for the rejection of the appellant's wife's evidence in relation to his condition at Joondalup Health Campus.

92 Further, in my opinion, the fact that, when the appellant regained consciousness at Sir Charles Gairdner Hospital after having been placed in an induced coma in Joondalup Health Campus, he was unable to recall the circumstances of the accident, does not necessarily make unreliable the statements he made to his wife and Mr Saicic at Joondalup Health Campus prior to the coma being induced.

In all the circumstances, did the learned Judge err in failing to be satisfied on the balance of probabilities that the appellant had proved that an unidentified vehicle driven by an unidentified person was involved in the accident?

93 The appellant's credit was a fundamental issue at trial. The learned Judge made several significant errors in the fact finding and reasoning process which led her Honour to reject the appellant's evidence and hold that he had not proved that an unidentified vehicle driven by an unidentified person was involved in the accident.

94 The findings of fact and reasoning which were not vitiated or affected by errors, and which were relevant to the learned Judge's rejection of the appellant's evidence and her ultimate conclusion, are these:

(a) Her Honour's finding that Mr Barrell did not hear another vehicle at or leaving the accident scene.

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(b) Her Honour's rejection of the appellant's evidence that at the meeting on 29 June 1999 he told Mr Moore that his account of the accident was merely what someone else had told him had happened.

(c) Her Honour's reference to Mrs Lackovic's evidence that she did not conclude, from what the appellant told her at Joondalup Health Campus, that the other vehicle had "come out of the side street", whereas Mr Moore said that he concluded, from what the appellant told him, that the other vehicle had approached Marmion Avenue from Marri Road, and her Honour's conclusion that this inconsistency reflected adversely on the appellant's credit.

(d) Her Honour's finding, based on the evidence of Mr Rogers and Mr Barrell, as to the condition of the appellant at the accident scene, provided some basis, but not a compelling foundation, for the rejection of Mrs Lackovic's evidence in relation to the appellant's condition at Joondalup Health Campus.

95 In my opinion, the learned Judge's findings of fact and reasoning which were not vitiated or affected by errors are not sufficient, of themselves and in the context of the significant errors which her Honour made, to sustain her Honour's rejection of the appellant's evidence and her ultimate conclusion. The significant errors to which I have referred did not relate merely to matters incidental to the learned Judge's fact finding and reasoning. They materially affected her Honour's approach to the assessment of the truthfulness and reliability of the appellant's account of the accident.

Conclusion: appeal allowed and order for retrial

96 Although this was an appeal by way of rehearing, subject to the appellant's application to adduce further evidence, the appeal was based on the record. The appellant's credit was critical to the outcome of the proceedings, and it is therefore impossible for this Court to determine whether the appellant's claim should succeed or not. A retrial in the District Court should be ordered. See CSR at [82], [86], [87], Weiss v The Queen [2005] HCA 81 at [41]; The Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 at 1819 [11]; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 at 330 [91].

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97 The learned Judge is now a Judge of the Supreme Court. It is therefore unnecessary to order that the retrial be before a different Judge.

The appellant's application to adduce further evidence

98 Although it is not strictly necessary to consider this application, it was, in most respects, fully argued and, in my opinion, it is appropriate to deal with it.

99 The documents sought to be adduced as further evidence comprise:

(a) Documents from Telstra which reveal that on 2 May 1999 at 4.14 am a telephone call was made to the 000 emergency service from Mr Barrell's residence. Subsequent investigations established that the telephone call was made by Mr Barrell's mother, who is now deceased.

(b) Documents from the Western Australian Police Service which reveal that on 2 May 1999 at 4.23 am the police received a 000 emergency telephone call and that the officer who received the call noted, relevantly, that there had been a motor vehicle accident at the corner of Marmion Avenue and Marri Road in Duncraig and that the accident involved a "car versus car" collision.

(c) Documents from St John Ambulance Australia which reveal that on 2 May 1999 at 4.16 am, St John Ambulance Australia received a 000 emergency telephone call and that the representative who received the call noted, relevantly, that two motor vehicles had been involved in an accident in Marmion Avenue, near Marri Road, in Duncraig.

(d) A written statement dated 23 December 1999 and signed by Mr Barrell in relation to the appellant's accident.

The power of this Court to admit further evidence on appeal

100 I have mentioned that the effect of r 4(2)(a) of the Court of Appeal Rules is that the Rules of the Supreme Court, as in force immediately before the Court of Appeal Rules commenced, apply to this appeal, subject to the President's Direction No 1 of 2005, which is not relevant for present purposes. I have also mentioned that no orders have been made in relation to this appeal under r 4(2)(b) of the Court of Appeal Rules.

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101 Order 63 r 10(1) (which was in force immediately before the Court of Appeal Rules commenced, but which was repealed upon their commencement) provides:

"The Full Court on any appeal shall have … full discretionary power to receive further evidence upon questions of fact … Such further evidence may be given without special leave upon interlocutory applications, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. Upon appeals from a judgment after trial or hearing of any cause or matter upon the merits, such further evidence … shall be admitted on special grounds only, and not without special leave of the Court."

102 The Rules of the Supreme Court were made under s 167(1) of the Supreme Court Act and are "subsidiary legislation" for the purposes of the Interpretation Act 1984 (WA).

103 In Australian Electrical Electronics Foundry & Engineering Union Western Australian Branch v Hamersley Iron Pty Ltd (1998) 19 WAR 145, Malcolm CJ (with whom Kennedy and Owen JJ agreed) considered O 63 r 10(1) and the test for the admissibility of further evidence after trial, and held, at 162:

"The general principle is that a verdict or judgment regularly obtained should not be disturbed by the admission of further evidence without some insistent demand of justice. If the only matter which is relied upon is that it is desired to adduce evidence which was not used at the trial, it must be reasonably clear that, if the evidence had been available and adduced at the first trial, it is highly likely that it would have produced an opposite result and that no reasonable diligence on the part of the defeated party would have enabled him to procure the evidence: see

Orr v Holmes

(at 640), per Dixon J;

Greater Wollongong City Council v Cowan

(1955) 93 CLR 435 at 444, per Dixon CJ. If, however, the failure of the successful party in an action to comply with an order for the discovery of documents has had the result that relevant evidence in his possession or under his control has remained undisclosed until after judgment, an appellate court must assess what will best serve the interests of justice. In such a case the appellant must establish at least a real possibility that the result would have been different if proper discovery had been given."

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104 In Orr v Holmes (1948) 76 CLR 632 and Greater Wollongong City Council, the High Court articulated the powers of the common law courts to grant a new trial.

105 The observations of Malcolm CJ in Australian Electrical Electronics were applied by the Full Court of the Supreme Court of Western Australia in Young v Kestel (as Executor of the Will and Estate of Douglas Tate Young (dec)) [2003] WASCA 190.

106 The Full Court in Australian Electrical Electronics and in Young did not refer to the judgment of the High Court in CDJ v VAJ (1998) 197 CLR 172.

107 In CDJ the High Court considered, relevantly, whether the power conferred on the Full Court of the Family Court of Australia by s 93A of the Family Law Act 1975 (Cth) to receive further evidence on appeal is governed by the principles laid down in Greater Wollongong City Council. Section 93A(2) provides that the Family Court of Australia has power in an appeal to receive further evidence upon questions of fact, which evidence may be given by affidavit, by oral examination before the Court, or in such other manner as the Court may direct. McHugh, Gummow and Callinan JJ held at 197 - 198 [97] that the principles laid down in Greater Wollongong City Council (and the similar appeal in McCann v Parsons (1954) 93 CLR 418) are to be understood by reference to the procedures of the common law courts, and that those cases are not authoritative in relation to the admissibility of further evidence in respect of a statutory power to admit evidence on appeal. Later, their Honours noted at 200 [105] that even at common law the grounds for admitting further evidence of matters occurring before judgment were not inflexible, and that:

"The common law courts have always reserved to themselves an exceptional power to set aside a verdict on the ground of further evidence where the interests of justice require it."

108 In McCann, Dixon CJ, Fullagar, Kitto and Taylor JJ said, at 430-431:

"The grounds upon which the court proceeds in granting the remedy … have never become completely stereotyped; they have always possessed some flexibility and have been governed by the overriding purpose of reconciling the demands of justice with the policy in the public interest of bringing suits to a final end."

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109 The statutory provisions considered by the High Court in CDJ are materially different from the provisions of O 63 r 10(1) in that O 63 r 10(1) requires that special grounds exist and special leave of the Court be obtained before further evidence (as to matters which occurred before the date of the decision from which the appeal is brought) is received on appeal from a judgment after trial or hearing of any cause or matter upon the merits, whereas the power to receive further evidence conferred by s 93A(2) of the Family Law Act is not confined in a comparable manner.

110 In Akins v National Australia Bank (1994) 34 NSWLR 155, the Court of Appeal of New South Wales considered the power of the Court to receive further evidence upon the hearing of an appeal. Section 75A(7) of the Supreme Court Act 1970 (NSW) conferred such a power, but s 75A(8) provided that the Court may not receive further evidence after a trial on the merits "except on special grounds". Section 75A(9) provides that s 75A(8) does not apply to evidence concerning matters occurring after the trial or hearing. These New South Wales statutory provisions are comparable to O 63 r 10(1). Clarke JA (with whom Sheller and Powell JJA agreed) said, at 160, in the context of an appeal from a civil judgment following a trial before a judge alone, that:

"Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible."

111 In Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 at 124 [14], Heydon JA (with whom Mason P and Young CJ in Equity agreed) said that the observations of McHugh, Gummow and Callinan JJ in CDJ , at [104] – [115], may possibly require a reconsideration of the approach adopted in Akins. His Honour stated:

"The High Court in

CDJ v VAJ

(1998) 197 CLR 172 at 200 noted [the passage in

McCann

at 430-431]. In that case the majority (McHugh J, Gummow J and Callinan J) held that the common law tests were not appropriately to be applied to the power to receive further evidence conferred on the Family

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Court by s 93A(2) of the

Family Law Act 1975

(Cth). It is possible that that may in the future invite reconsideration of the application of the

Akins

tests to s 75A(8), though, as the majority noted (at 201), the language of s 93A(2) is different from that of s 75A(8). But until such cases as the

Akins

case are overruled, they continue to bind this Court."

112 Heydon JA then added at 124 [15] that "even if the three tests stated in the Akins case are applicable and are not satisfied, a question remains: is it just to admit the further evidence in this case?". See also Aztec Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd (2005) 55 ACSR 1 at 28 – 30 [99] – [106].

113 Neither counsel for the appellant nor counsel for the respondent submitted that the application of the tests in Australian Electrical Electronics to O 63 r 10(1) should be reconsidered. Indeed, counsel did not refer to CDJ or Nowlan. It is unnecessary, in the circumstances, to pursue the point in this appeal.

114 I consider, however, that the observations of Heydon JA in Nowlan, at 124 [15], should be applied, by analogy, to the power of the Court under O 63 r 10(1) to receive further evidence (as to matters which occurred before the date of the decision from which the appeal is brought) on an appeal from a judgment after trial or hearing of any cause or matter upon the merits. In particular, even if the tests enunciated by Malcolm CJ in Australian Electrical Electronics are applicable and are not satisfied, it is then necessary to consider whether it is just, in the circumstances of the case, to admit the further evidence on appeal.

The documents from Telstra, the Police Service and St John Ambulance Australia

115 The evidence embodied in the documents from Telstra, the Police Service and St John Ambulance Australia on which the appellant seeks to rely is hearsay on hearsay. On the assumption that the documents could be tendered as evidence of the truth of their contents (see s 79C of the Evidence Act 1906 (WA) and compare Beamish v The Queen [2005] WASCA 62 at [152] – [168]), in my opinion it is not highly likely (or even likely on the balance of probabilities) that this evidence would have produced a different result at trial. Further, I consider that it is not otherwise just that this evidence should be admitted in the appeal. It is unnecessary to consider whether the exercise of reasonable diligence on the part of the appellant would have enabled him to procure the evidence prior to trial. I would refuse the appellant's application to adduce into

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evidence in this appeal the documents obtained from Telstra, the Police Service and St John Ambulance Australia.

The written statement dated 23 December 1999 made by Mr Barrell

116 Mr Napier, the insurance investigator retained by the respondent, obtained a written statement from Mr Barrell on 23 December 1999. The statement provides, relevantly:

"I was in my house, awake at the time and it had been a stormy night and had rained heavily earlier on and it was raining light to medium at the time.

Then I heard the noise of skidding tyres and then two separate impacts one after the other.

I did not hear a metallic sound (as in metal to metal) in the impacts.

The skidding noise was coming from Marri Rd. I am used to the area and knew where the sound came from.

…

I saw no skid marks at the scene.

…

The following morning I re visited the scene and saw no evidence of skid marks at all."

117 The assertion in Mr Barrell's statement dated 23 December 1999 that the "skidding noise was coming from Marri Road" is to be compared to and contrasted with his evidence at trial that:

(a) The screeching of brakes, the very loud bang and the very loud thud that he heard emanated from the direction of Marmion Avenue and not from Marri Road; and

(b) If he was awake in the early hours of the morning and in his bedroom, he was able to hear any motor vehicle travelling along Marri Road. He was able to distinguish between vehicles travelling on Marmion Avenue and vehicles travelling on Marri Road.

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118 Counsel for the appellant submitted to this Court that this inconsistency between Mr Barrell's statement dated 23 December 1999 and his evidence at trial cast doubt upon the credibility of his evidence at trial. Further, counsel submitted that Mr Barrell's statement dated 23 December 1999 may indicate that there was in fact another vehicle which forced the appellant from Marmion Avenue, as described by the appellant, and then turned right into Marri Road at the T-junction of Marmion Avenue and Marri Road. Counsel suggested that the skidding noise emanating from Marri Road, which Mr Barrell described in his statement dated 23 December 1999, may have been made by another vehicle, as it turned right from Marmion Avenue into Marri Road, after having forced the appellant from Marmion Avenue. Counsel also submitted that Mr Barrell's assertion in his statement dated 23 December 1999 that there were no skid marks at the scene (presumably, on Marmion Avenue) supported the proposition that the skidding noise emanated from Marri Road and not Marmion Avenue. (I have not overlooked the evidence of Constable Killalea that he saw skid marks "from the bitumen, along the sandy verge or grass verge" at the accident scene.)

The discovery process prior to trial

119 Counsel for the appellant and the respondent were in agreement that the statement dated 23 December 1999 was a communication passing between a third person (Mr Barrell) and an agent of the respondent (Mr Napier) which was made with reference to anticipated litigation and for the purpose of being put before the respondent's solicitors with the object of obtaining their advice or enabling them to defend an action. See category (f) in Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-246. See also Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49.

120 The respondent's solicitor gave discovery of documents prior to trial by letter dated 24 October 2002. The letter purported to list all discoverable documents apart from those documents particularised in the appellant's list of documents. The letter also specified various documents under the heading "Privileged Documents". There is no reference in the letter, either specifically or generally, to Mr Barrell's statement dated 23 December 1999.

121 Counsel for the appellant submitted to this Court that:

(a) The statement dated 23 December 1999 should have been disclosed to the appellant prior to trial because "there was no claim for privilege" in respect of the statement in the

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letter giving discovery, alternatively, "there was no adequate claim for privilege properly identifying the statement" in the letter.

(b) Alternatively, as a consequence of the respondent's failure "to discover and failure to claim privilege and failure to list the statement" in the letter of discovery, the appellant proceeded to trial without pursuing "certain lines of inquiry".

(c) Accordingly, whether the statement should be admitted into evidence on the appeal was to be determined in accordance with the less stringent test applicable where there has been a failure to discover documents prior to trial.

122 The discovery of documents is, of course, to be distinguished from their production. A party who is required to give discovery must discover all documents which are or have been in his or her possession, custody or power relating to any matter in question. See O 26 r 1(1). By O 26 r 4(2), if it is claimed that any documents are privileged from production, the claim must be made, in the list of documents contemplated by O 26 r 1, with a sufficient statement of the grounds of the privilege. Documents which are the subject of legal professional privilege, but which are or have been in the possession, custody or power of a party and which relate to any matter in question in the proceedings, must be discovered in the list of documents, but need not be produced for inspection.

123 The appellant's submission that Mr Barrell's statement dated 23 December 1999 should have been "disclosed to the appellant" (that is, produced for inspection) in consequence of the statement:

(a) not having been referred to in the respondent's solicitor's discovery letter; and

(b) not having been the subject of a "claim" or "adequate claim" for privilege,

is misconceived.

124 Legal professional privilege protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in existing or anticipated legal proceedings. The privilege attaches to communications, not documents, but discovery is concerned with documents, and
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privileged communications are often in writing. See

Esso Australia Resources

at 64 – 65 [35] – [36]. Legal professional privilege is a substantive general principle of the common law and not a mere rule of evidence. See

Attorney-General (NT) v Maurice

(1986) 161 CLR 475 at 490. The privilege, where it applies, arises immediately by operation of law from the nature and purpose of the communication. Legal professional privilege does not arise upon and by virtue of the privilege being "claimed" or "adequately claimed".

125 At common law, a communication which is the subject of legal professional privilege may be waived, expressly or impliedly, by the client who is entitled to the privilege. In Mann v Carnell (1999) 201 CLR 1 Gleeson CJ, Gaudron, Gummow and Callinan JJ observed, at 13 [29]:

"Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is 'imputed by operation of law'. (eg

Goldberg v Ng

(1995) 185 CLR 83 at 95). This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. … What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large."

126 Disclosure by a client of a confidential communication which is the subject of legal professional privilege is an obvious form of waiver. As Gleeson CJ, Gaudron, Gummow and Callinan JJ observed in Mann at 15 [34]:

"Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect. "

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127 In my opinion, intentional or unintentional non-disclosure, in the course of the discovery process prior to trial, of a discoverable document which is the subject of legal professional privilege will not constitute waiver. The non-disclosure does not constitute conduct by the client which is inconsistent with any continuing assertion by the client that the privileged communication continues to be confidential in character as between the client and his or her lawyer.

128 If a party fails to discover a document which should have been discovered, the failure does not make the document inadmissible at trial, although there may be other consequences including adjournment of the trial and orders as to costs. See Cooke v Australian National Railways Commission (1985) 39 SASR 146 at 149. Also, where a party fails to give proper discovery, a retrial may be ordered if justice requires it. See Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 2 NSWLR 340 at 345. And there may, of course, be disciplinary consequences for the solicitor of a party who fails to make proper discovery. But, in my opinion, the non-disclosure, prior to trial, of a discoverable document which is the subject of legal professional privilege, does not, of itself, require the defaulting party to produce the document for inspection.

129 I am therefore of the opinion that the respondent was not obliged to produce Mr Barrell's statement dated 23 December 1999 to the appellant prior to trial in consequence of the respondent's solicitor's failure to refer to the statement in the discovery letter dated 24 October 2002.

130 There was evidence before this Court, which I accept, that prior to trial the respondent's solicitor informed the appellant's solicitors and his counsel that the respondent intended calling Mr Barrell as a witness. There was also evidence before this Court, which I accept, that prior to trial the appellant's solicitors contacted him.

131 I am not satisfied that the respondent's failure to discover, prior to trial, Mr Barrell's statement dated 23 December 1999 (and, no doubt, claim privilege from production in respect of it) caused the appellant not to pursue lines of inquiry it would otherwise have pursued.

The circumstances in which the statement dated 23 December 1999 was obtained after trial

132 On or about 24 June 2005, the respondent sent the appellant various documents including a copy of Mr Barrell's statement dated 23 December 1999. The respondent sent the documents to the appellant pursuant to an

(Page 49)

application made by the appellant under the

Freedom of Information Act 1992

(WA).

133 The respondent was not obliged under the Freedom of Information Act to provide access to the statement. Section 23(1)(a) of the Freedom of Information Act provides:

"(1) Subject to section 24 the agency may refuse access to a document if —

(a) the document is an exempt document;

…"

134 At all material times the respondent was an "agency" for the purposes of the Act. Section 24 is not relevant for present purposes. In the Act, unless the contrary intention appears:

(a) "exempt document" means a document that contains exempt matter; and

(b) "exempt matter" means "matter that is exempt matter under Sch 1".

135 By cl 7(1) of Sch 1 to the Act, matter is exempt matter if it would be privileged from production in legal proceedings on the ground of legal professional privilege.

136 When legal professional privilege arises in consequence of contemplated litigation and the litigation is commenced, the privilege remains intact after the litigation has been completed. See Calcraft v Guest [1898] 1 QB 759 at 761 - 762; Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63 at 66.

137 In my opinion, the respondent's conduct in sending to the appellant a copy of the statement dated 23 December 1999 constituted a waiver by the respondent of the legal professional privilege which attached to the statement. It is not apparent from the affidavit evidence before this Court whether the waiver was intentional or unintentional. In other words, it is not apparent whether the respondent granted the appellant access to the statement under the Freedom of Information Act in the erroneous belief that it was not entitled to deny access.

138 The learned Judge referred to Mr Barrell's evidence at trial as "highly credible". I accept the submissions of counsel for the appellant that there

(Page 50)

is an inconsistency between Mr Barrell's statement dated 23 December 1999 and his evidence at trial in relation to the direction from which various noises relating to the accident emanated. Also, it is arguable that Mr Barrell's statement provides some (slender) support for the contention that there was another vehicle which forced the appellant from Marmion Avenue, as described by the appellant, and then turned right into Marri Road at the T-junction of Marmion Avenue and Marri Road. I consider, however, that it cannot reliably be concluded that it is highly likely (or even likely on the balance of probabilities) that the evidence in the statement would have produced a different result at trial. Further, I consider that it is not otherwise just that this evidence should be admitted in the appeal: there is no doubt, in my opinion, that if the respondent had discovered, prior to trial, Mr Barrell's statement dated 23 December 1999, the respondent would have claimed privilege from production in respect of it. I would refuse the appellant's application to adduce into evidence in this appeal Mr Barrell's statement.

Lackovic v Insurance Commission of Western Australia

[2006] WASCA 38

10 MARCH 2006

LACKOVIC -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2006] WASCA 38