Moukhayber v Camden Timber & Hardware Co Pty Ltd - [2002] NSWCA 58

NEW SOUTH WALES COURT OF APPEAL

CITATION: Moukhayber v Camden Timber & Hardware Co Pty Ltd [2002] NSWCA 58

FILE NUMBER(S):
40747/00

HEARING DATE(S): 6 March 2002

JUDGMENT DATE: 06/03/2002

PARTIES:
Mohamed Moukhayber (Appellant)
Camden Timber & Hardware Co Pty Ltd t/as Camden Timber Mitre 10 (Respondent)

JUDGMENT OF: Beazley JA Heydon JA Santow J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 1714/99

LOWER COURT JUDICIAL OFFICER: Dent DCJ

COUNSEL:
Mr S W Gibb SC (Appellant)
Mr C R R Hoeben SC (Respondent)

SOLICITORS:
Orr & Company (Appellant)
Tress Cocks & Maddox (Respondent)

CATCHWORDS:
Tort - Negligence - District Court Appeal - Plaintiff alleged defendant's employee wrongly advised plaintiff to remove safety features from angle grinder - Injury resulting from acting upon alleged advice.
Evidence - Jones v Dunkel point - Plaintiff omitting to call all relevant witnesses - Whether trial judge should have inferred that untendered evidence would not have helped defendant's case - ND.

LEGISLATION CITED:
Supreme Court Act 1970 (NSW)

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40747/00
DC 1714/99
BEAZLEY JA
HEYDON JA
SANTOW JA
6 March 2002

MOHAMED MOUKHAYBER v CAMDEN TIMBER & HARDWARE
CO PTY LTD (t/as CAMDEN TIMBER MITRE 10)

Judgment

HEYDON JA: After a hearing over 22 to 26 May, or at least over parts of those days, on Monday 29 May 2000 Dent DCJ QC found a verdict for the defendant in relation to the plaintiff’s claim for damages for personal injuries. This is an appeal by the plaintiff against that order, seeking a new trial.
The background was described thus by the trial judge:
“The plaintiff’s case is based upon a sale transaction and advice given to him which he alleges occurred at the defendant’s place of business at Narellan shortly before the accident of 15 March 1996. The evidence discloses that at and significantly prior to the date of the accident the plaintiff was a concreting contractor operating that business in an advertised name suggesting his wife had an interest in it which apparently on the tax returns provided in evidence she did not in fact have, from what appears to be the family home at 20 Morgan Street Miller New South Wales. The plaintiff held the appropriate licence to trade in his own name since 1995. By that time he had become a person long skilled in his avocation able to quote for jobs as well as physically perform the tasks of laying concrete and skilfully decorating it by what is known as stencilling. As at the date of the accident the plaintiff’s tools of trade included a Bosch electrically powered angle grinder. This portable machine was not produced in evidence but one similar to it was entered in evidence by the defendant after the plaintiff identified it as a similar machine. The machine was designed to use inter alia cutting discs up to nine inches in diameter and it was fitted with a part circumferential metal guard which would only permit discs up to nine inches in diameter to be fitted and used on it.
The plaintiff in the course of his business used this machine to cut expansion joints in concrete fabrications that had been laid. He had, he says, up until the subject accident used Flexivit 9-inch discs for this purpose. This practice was followed on smaller jobs. For bigger jobs he hired concrete cutting saws. The type of angle grinding machine used by the plaintiff is a widely used device. The cutting discs used are widely used devices by both tradesmen and handymen. The guard fitting to that machine serves a number of obvious purposes. It protects the hand of the operator from the disc, it protects the operator from detritus expelled as part of the cutting process. It provides protection to the operator from the consequences of a disc fracturing at high speed and propelling fragments towards the operator’s body.
Attachment of a disc to a grinder requires the use of metal flanges which fit over the spindle shaft of the grinder on either side of the disc. The flanges are circular. The flange nearest the grinder body drops over the threaded spindle shaft and slots into its base so as to lock it to the shaft. The disc has a bore hole in its centre. The disc is then placed around the spindle shaft so as to rest against the inner flange. The outer flange is then dropped over the threaded spindle shaft or screwed down the threads to the disc and screwed down the threads to the disc or bolted on the threads of the spindle. The outer flange has a central fixed circular protuberance or boss which mates exactly into the bore hole in the disc. When the outer flange is screwed down or bolted down the disc is then precisely centred on the spindle and the disc is attached to the spindle by the compression of the outer flange on to it by screwing the outer flange down on its own thread or it would seem bolting it down to the disc by a separate bolt. A 9-inch Flexivit disc was introduced by the plaintiff as exhibit B in these proceedings. A 12-inch Flexivit disc was introduced as exhibit C.
On Exhibit B the 9-inch disc of Flexivit brand which was the brand used by the plaintiff prior to the accident, the following information appears. ‘Flexivit made in Australia cut off wheel and various descriptive numbers’. On the left of the disc ‘flanges must be fitted as illustrated below on the right of the disc.’ Then a diagram is given under the ‘flanges must be fitted’ on the left side of the disc headed ‘incorrect mounting’ and the words under that, flanges not equal in diameter showing a distortion of the disc. On the right-hand side of the disc appears the words ‘correct mounting blotter, flanges are equal in diameter. The disc is described as a stone disc with identifying numbers under it followed by the following words, ‘Warning cutting wheels must be mounted correctly. Metal guard must be used on all machines. Danger, do not exceed maximum safe speed. Flanges must be one-third of the diameter of the wheel.’ In the central or what appears to be the blotter area of the disc it is advised that the disc is to be used at revolutions per minute not exceeding 6,800.
On Exhibit C, the 12-inch Flexivit disc, the following information appears. ‘Flexivit made in Australia.’ On the left a numerical description of it with the words ‘max RPM 6,200.’ The same incorrect mounting and correct mounting are described. A warning is given that the flanges must be equal in diameter. The following warning is then given. ‘Cutting wheels must be mounted correctly. Metal guard must be used on all machines. Danger. Do not exceed maximum safe speed. Flanges must be one-third the diameter of wheel.’ These discs have no cutting teeth as such but cut by high speed abrasion of the material to which they are applied. The disc also abrades away as it is used, until its diameter is reduced to a point where it is unserviceable.”
The crucial aspect of the plaintiff’s evidence was summarised by the trial judge as follows:
“The plaintiff testifies that on some date in March 1996 prior to 15 he attended at the defendant’s large premises at Narellan to buy a cutting disc for his grinder in the company of his brother-in-law Hass. He says that he had done business there before. He went to the disc stand and spent some time there. He was concerned to obtain a cutting disc with a longer cutting life than the ones he had been using. He testifies that whilst he was looking, a male person approached him wearing a blue T-shirt with the Mitre 10 motif and said ‘Can I help you’ or words to that effect. The plaintiff says he said words to the effect of ‘I am looking for a 9-inch disc for concrete cutting expansion joints’. He says the man showed him a 9-inch disc. He says he said to the man ‘Do you have any bigger disc?’ and the man said ‘Yes’. He says he told the man ‘I want a bigger disc to last longer. I want to use it on a 9-inch grinder’. He says the man said ‘You can use it’. He said he said to the man ‘What about the safety guard?’ and the man said to him ‘You can take it off’. He says he then said to the man ‘Is there any danger if I take the safety guard off?’ and the man said ‘No we have never had one of these break before’ or words to that effect. He says he then examined the 12-inch disc he was given and saw it was not possible to use it without removing the safety guard on his grinder. The plaintiff testifies he then purchased the 12-inch disc because of the man’s assurance that it had never broken before.
I observe at this point that the 12-inch disc has a larger bore hole than a 9-inch disc and quite obviously could not be precisely centrally located to the spindle by an outer flange which would locate a 9-inch disc.”
The plaintiff’s evidence as to the injury sued on was summarised thus by the trial judge:
“The plaintiff says that on the day of the accident he was working the second day of a job at a home in Thompson Street Camden. He says he decided to cut expansion joints with his grinder. His brother-in-law, Hass, stood on a board forming a straight edge for him. He cut with the 9-inch disc on the grinder until it, that is the disc, was finished. He then replaced it with the 12-inch disc. To do this he took the guard off. He started cutting with the disc. It started wobbling. He stopped and checked it for tightness. He started it up again and it worked all right. He cut a further one to one and a half feet of the expansion joint when the disc broke. A fragment from the unguarded disc flew at him and gave him a terrible wound to his left lower arm from which he has never made full recovery in function and for which he on the probabilities never will.”
The operative parts of the trial judge’s reasoning were as follows:
“The plaintiff has never been able to identify the man at the defendants who served him. The defendant produced and identified in court all of its staff who could have served him in the period he nominates and he identifies none of them although he looked closely at two before he was able to positively swear that they were not the person that had served him. The plaintiff’s case on liability is founded on an alleged conversation in the defendant’s store when he says he was in effect advised it was safe to use a 12-inch disc on a grinder without the guard on it. I observed that that was extraordinary advice to give but all things are possible in this life. If it was given and acted on, it would give the plaintiff a strong sense of grievance against the fool who gave it and the employee foolish enough to employ that fool.
The plaintiff’s only confrontation or attempt at confrontation of the wrongdoer apart from one visit to the store on his solicitor’s advice to seek to identify who had served him, was the service of the subject statement of claim three years after the event. The plaintiff called his brother-in-law, Hass, to verify the fact of acquisition of the disc from the defendant and to explain the destruction of the purchase docket. In the process of cleaning up the plaintiff’s truck he also explained that he had collected and thrown out the disc fragments from the disc that shattered and injured the plaintiff. He said that this cleaning up of the plaintiff’s truck was something that they did for the plaintiff. This witness is selective in his recollections and quite unconvincing.
The plaintiff called his wife to explain the loss of the subject grinder. She swore it was lost in a fire in her garage well after the accident. She is an unconvincing witness who says that whilst this was the real cause of the loss of the grinder, she told her husband that it had been stolen instead for the unconvincing reasons that she gives. This evidence was given against the background of a defendant’s solicitor pre trial having asked the plaintiff’s solicitor to provide the grinder for inspection. The plaintiff’s solicitor on instructions from the plaintiff had responded that it was not available as it had been stolen from the plaintiff’s truck at Narellan. The absence of the grinder of course was significant. It was implicit in the plaintiff’s case it had not been used by him since the accident and of course the flanges fitted to it at the time of the tragedy may have been of significance in explaining its occurrence. The plaintiff gives evidence of flange changing to use the bigger disc on the grinder which of itself is far from convincing and his testimony is that he just happened to have a set of flanges in his tool box on his truck which had a box which would fit the bore hole of the 12-inch disc. The plaintiff called his cousin Steve who contradicted Hass’s evidence as to who it was who cleaned up the cabin of the plaintiff’s truck after the accident.
All of the above evidence was called for the purpose of clearing up the loose ends in the plaintiff’s case. Unfortunately it did not. It rather presented an imbroglio leaving me, the trial judge, unable to clearly discern where truth lies as opposed to creative reconstruction. Learned counsel for the plaintiff criticises the defendant’s identification parade in court and submits that each of the 11 salesmen called should have been sworn to testify that they did not advise the plaintiff as alleged or anyone as alleged and the like. The procuring of these persons to this Court from Narellan for the identification parade must have been enormously disruptive of the defendant’s enterprise and given the circumstances it can be seen as a forensic exercise in fairness to the plaintiff that led the plaintiff’s case nowhere.
I am deeply conscious that no one expressly refutes the defendant’s sworn testimony that he was relevantly advised as I have referred to above. What I have to finally determine is whether I am persuaded by the plaintiff’s testimony that on the balance of probability the advice upon which he says was given and that he relied upon it to his peril. The alternative proposition is that he chose to use the larger disc of his own decision. I confess I am unable to find in this tarnished imbroglio that more probably than not the advice the plaintiff swears was given, was given at all.”
The grounds of appeal are largely directed to the concluding observation of the trial judge that he was “unable to find that more probably than not the advice the plaintiff swears was given, was given at all”.
The plaintiff’s arguments in written submissions to this Court were as follows:
“The ultimate question of fact which his Honour himself posed for determination was whether the advice which the plaintiff said was given, and which the plaintiff relied upon to his peril, was given at all, or whether the plaintiff chose to use the larger disc of his own decision …
This formulation strongly suggests, at least implicitly and in the absence of any findings to the contrary, that his Honour must have accepted that the plaintiff -
(a) had, indeed, purchased the twelve inch disc from the defendant; and
(b)had been injured as a consequence of its use in the circumstances of which the plaintiff had testified.
In those circumstances, most of the matters in respect of which his Honour made findings as to the credit of witnesses -
(a)in respect of the plaintiff, as to whether there had been flange changing before the accident;
(b)in respect of the plaintiff’s wife, as to what she had said had happened to the grinder after the accident;
(c)in respect of the plaintiff’s brother-in-law, Hass, as to the destruction of the purchase docket and the disc fragments from the disc that had shattered and injured the plaintiff; and
(d)in respect of the plaintiff’s cousin, Steve, as to who he had said cleaned up the truck after the accident
could not rationally affect his Honour’s assessment of the probability of a fact in issue, namely, that, more probably than not, the advice the plaintiff said was given when he had purchased the twelve inch disc from the defendant was in fact given.
The plaintiff’s uncontradicted evidence was that the plaintiff made known expressly to the defendant’s salesman, before the plaintiff purchased the twelve inch disc, that he wanted a bigger disc than the nine inch disc for the purpose of using it on a nine inch grinder, and that the plaintiff was relying on the salesman’s judgment that the plaintiff could safely use a bigger disc with the safety guard off. …
Whether uncontradicted evidence should be accepted must depend on all the circumstances of the case, including its inherent probability and the possibility of calling evidence in denial. …
Whether the advice which the plaintiff said was given, and whether the plaintiff relied upon it to his peril, were questions of fact to be answered by examining all the evidence as to what was said and done with regard to the proposed transaction on either side from its first inception to the conclusion of the agreement to purchase. …
What the plaintiff did not do after the conclusion of that agreement, in particular, that the plaintiff did not confront or attempt to confront the salesman after the accident also could not rationally affect his Honour’s assessment of the probability of the fact in issue whether the plaintiff had been advised as the plaintiff alleged that he had been.
There being no finding that the plaintiff’s sworn testimony that he was relevantly advised as he alleged was inherently improbable, the circumstances of the case that -
(a)the plaintiff’s only ‘confrontation or attempt at confrontation of the wrongdoer’, apart from one visit to the store on his solicitor’s advice to seek to identify who had served him, was the service of the subject Statement of Claim three years after the event; and
(b)the plaintiff had never been able to identify the man at the defendant’s who served him, including from among the defendant’s staff produced and identified in Court as all of its staff who could have served him in the period he nominated
might rationally affect whether his Honour believed the plaintiff’s evidence that the advice the plaintiff said was given was, in fact given, but only if the defendant had adduced contrary evidence to the effect that such advice had not been given.
In any event, however, such circumstances could scarcely have the probative value which his Honour apparently ascribed to them; otherwise, plaintiffs who failed to confront or identify the particular person in a defendant’s employ who had done them wrong would invariably fail in claims such as the present.
The defendant’s failure to call each of the salesmen to the witness box, or to lead evidence which could amount to a reasonable explanation for not doing so, permitted his Honour to infer that the untendered evidence would not have helped the defendant, and would have entitled his Honour the more readily to find that, more probably than not, the advice the plaintiff said was given was in fact given.
That his Honour may have been ‘deeply conscious’ that no-one expressly refuted the plaintiff’s sworn testimony that he was relevantly advised as alleged (red AB 021P) does not demonstrate that his Honour treated the unexplained failure in the manner to which the plaintiff was entitled to have it treated. …
In all the circumstances of the case, including his Honour’s reasons or lack of them, by concluding that he was ‘unable to find’ that the advice the plaintiff swore was given at all, his Honour failed to use or palpably misused his advantage in having seen the witnesses of the plaintiff only.”

It is convenient to deal with the plaintiff’s written submissions and his oral submissions to be noted below, on the assumption that what is said early in the quoted written submissions is correct, namely that the trial judge did accept that the plaintiff had purchased the twelve inch disk from the defendant and had been injured as a consequence of its use in the circumstances described by the plaintiff in evidence. Whether the trial judge was in fact making implicit findings to that effect is a difficult question which need not be determined.

Apart from the written submissions, there were additional oral arguments. One of these related to the relationship between the plaintiff’s failure to complain about the advice and its causal connection with his injury and the trial judge’s inability to be satisfied as to his account of the advice. Counsel for the plaintiff in this Court submitted that in a passage not recorded on the transcript the trial judge observed of the plaintiff “he is from the Levant”, that is, he would be likely to complain if he had a ground for complaint. No submission based on this can be accepted. There is no evidence of the trial judge having said that. There is no ground of appeal relating to any bias on the part of the trial judge. In any event, the force, or lack of force, of the trial judge’s reasoning would be the same even if the observation had been made. The trial judge’s point is that any person in the plaintiff’s position, injured as the plaintiff was, wherever he came from, might be expected to confront the defendant, or at least to identify the employee who gave the advice in issue.
Other oral arguments advanced by the plaintiff will be considered at the appropriate stage below.
Underlying the plaintiff’s arguments is the contention advanced in paragraph 5 of the Notice of Appeal, namely that the trial judge gave inadequate reasons. It is true that the reasons for judgment do not contain just before or just after the trial judge’s statement of his conclusion a set of discrete grounds for it. He did not say that he found the plaintiff’s demeanour unsatisfactory. He did not point to internal contradictions in the plaintiff’s evidence, rendering it unworthy of acceptance. He did not explicitly point to contradictions between the plaintiff’s evidence and other evidence which was either incontrovertible or acceptable. He did not rely on any admission by conduct stemming from the evidence of the witnesses called by the plaintiff, namely his wife, his brother-in-law and his cousin, which was both conflicting and unsatisfactory; indeed, in the absence of verbal admissions or admissions by conduct on the part of the plaintiff personally in cross-examination, this would not have been possible.
However, throughout the reasons for judgment there are stated matters capable of operating as reasons for the trial judge’s conclusion and in fact apparently supporting his reasons. Whether they do so sufficiently was the question raised by other parts of the plaintiff’s submissions. These matters may be summarised as follows, with some amplification of their significance.
First, the trial judge said that if the advice alleged by the plaintiff had been given, it was “extraordinary advice to give but all things are possible in this life”. The reason why it was extraordinary is that the defendant’s Mitre 10 store appeared no doubt to be a substantial operation with eleven relevant employees. It would conform with the judge’s general experience of life that that type of shop, usually staffed by persons of adequate skill and persons not prone to recklessness, would not have advised changing machinery capable of inflicting serious injury so as to remove safety features. The unlikelihood of an employee doing so would stem from the commercial interests of the employer and from common humanity.
Secondly, the trial judge believed, and was entitled to believe, the evidence called by the defendant to the effect that the eleven persons produced in court comprised the totality of the staff who could have served the plaintiff. Mr Salter’s evidence to that effect appeared to be careful and was based on contemporary business records which were made available to the plaintiff. He was closely cross-examined. He made various small mistakes and changed testimony in a manner suggesting he was attempting to recall the events of four years earlier in a sincere fashion as he responded to each question. With all respect to the ability of the cross-examination, it did not shake Mr Salter; and the trial judge’s finding that all the staff who could have served the plaintiff had been produced is not to be overturned in this Court. It is a finding capable of operating as a reason for his conclusion.
Thirdly, the plaintiff positively denied that any of the eleven men who attended the court served him. Had he been unsure about some of them, there might have been point in calling them, but since the plaintiff out of his own mouth denied that they had served him, it would have been superfluous for the defendant to duplicate that evidence by calling each of them to deny having served the plaintiff.
Fourthly, had the conversation happened as the plaintiff said, the trial judge said this would have given the plaintiff a strong sense of grievance against the employee in question and the defendant. The accident happened on 15 March 1996 and the conversation occurred, to the extent that it occurred, only days before that date. Yet the plaintiff did not confront the defendant and the first that the defendant knew about the allegations against it was on receipt of the Statement of Claim three years later. The trial judge evidently thought it open to infer from the failure to complain speedily that there was little to complain about. Alternatively, it could be inferred that whatever was said might, with the passing of time, have become reconstructed into a form which might assist the case which the plaintiff eventually brought.
Fifthly, the trial judge noted that there was no documentary evidence of purchase and that both the disk fragments and the grinder were not tendered. The loss of those items, for whatever reason, made it harder to check the plaintiff’s version of events in relation to some parts of his case. The plaintiff had the onus of proving that case and the loss of those items increased the judge’s difficulty in being satisfied on the balance of probabilities in relation to other parts. The trial judge said: “The absence of the grinder of course was significant. It was implicit in the plaintiff’s case it had not been used by him since the accident and of course the flanges fitted to it at the time of the tragedy may have been of significance in explaining its occurrence.”
Sixthly, the trial judge said:
“The plaintiff gives evidence of flange changing to use the bigger disc on the grinder which of itself is far from convincing and his testimony is that he just happened to have a set of flanges in his tool box on his truck which had a boss which would fit the bore hole of the 12-inch disc.”

It is true that the trial judge did not say why the evidence was not convincing. It is also not clear whether the trial judge actually rejected the evidence. But that obscurity does not alter the fact that when the judgment is read as a whole, reasons can be found in it for the conclusion of which the plaintiff complains. Whether they are satisfactory reasons is the next question for consideration.
In essence, the question is whether the reasons given by the trial judge are so unsatisfactory in point of validity as to justify an order for a new trial. In oral argument, the issue was posed as being whether the trial judge had failed to use or abused a position of advantage enjoyed by him in relation to the hearing of the testimony of the witnesses.
While the requirement in civil cases that the trier of fact be satisfied on the balance of probabilities has been called an undemanding standard, it has some reality. Traditionally there are two approaches to its application. One is to demonstrate that the odds of the fact existing or the event happening which the plaintiff is seeking to establish are at least fifty one to forty nine (Davies v Taylor [1974] AC 207 at 219). In view of the inherent unlikelihood of a Mitre 10 salesman saying what the plaintiff alleged, that criterion could not be satisfied, but, as the trial judge said, the conversation could have happened, despite its improbability. This requires the trier of fact to turn to the other approach. On that approach, the trier of fact must
“feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. [At] common law it is enough that the affirmative of an allegation be made out to the reasonable satisfaction of the Tribunal.” (Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2 per Dixon J; see also Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 227 per Mahoney JA).
The trial judge did not find that the conversation occurred and did not find that it did not occur. Rather he took a third course, which was an available one. In Rehsa Shipping Co SA v Edmunds [1985] 1 WLR 948 at 955-6; [1985] 2 All ER 71 Lord Brandon of Oakbrook said:
“the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.”
In a case of the antiquity of the present one, the trial being over four years after the events in issue, it is quite understandable that the trial judge would find it impossible to come to a conclusion one way or the other.
It is also necessary to remember that the appeal is by way of rehearing: Supreme Court Act 1970 s 75A(5). It is not a trial de novo, or a trial of the case afresh on the record. The plaintiff bore the burden in the appeal not merely of showing that on the facts that his contentions might be available but of showing that the trial judge’s conclusions ought to be reversed.
One other background matter must be borne in mind. In Watson v Foxman (1995) 49 NSWLR 315 at 318-319, McClelland CJ in Eq said:
“Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously describe as ‘misleading’) within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court ‘must feel an actual persuasion of its occurrence or existence’. Such satisfaction is ‘not … attained or established independently of the nature and consequence of the fact or facts to be proved’ including the ‘seriousness of an allegation made, the inherent unlikelihood of a given description, or the gravity of the consequences flowing from a particular finding’: Helton v Allen (1940) 63 CLR 691 at 712.
Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a cause of action based on s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), in the absence of some reliable contemporaneous record or other satisfactory corroboration.”
Though those words were uttered in relation to a misleading conduct case, they have general application. Indeed, the present case is a case of misleading conduct though it was not pleaded as such. Here, not only was the plaintiff relying on a conversation for which there was no support in contemporaneous records and no corroboration (since, though the plaintiff’s brother-in-law was present in the shop at the time, he said he was too far away to hear the conversation), but the plaintiff was contending for a conversation, the inherent unlikelihood of which was high. In addition, the risks of misunderstanding alluded to by McClelland J were doubtless increased by the plaintiff’s lack of skill in speaking English. Parts of his evidence were given through an interpreter and the parts which were not were not of high linguistic quality.
In my opinion, it cannot be said that the plaintiff has demonstrated error in the trial judge’s failure to be satisfied that the conversation took place. As the plaintiff submitted, whether uncontradicted evidence should be accepted depends on all the circumstances, including its inherent probability and the possibility of calling evidence in reply. It was possible but it was not inherently probable. The plaintiff submitted that there was no finding that it was inherently improbable, however the trial judge’s statement that the alleged advice was “extraordinary” amounts to the same thing.
Further, the failure of the plaintiff to make speedy complaint was, at least taken with other factors, capable of weakening confidence in the vital element of the plaintiff’s case. The plaintiff’s contention that his failure to confront the defendant or identify the particular employee of the defendant lacked significance because if it had had significance, persons in the position of the plaintiff would invariably fail is invalid. That factor taken with other factors is capable of supporting the trial judge’s conclusion in the present case. It might not in other cases, and it might not if it stood alone. In oral argument, it was pointed out on behalf of the plaintiff that after the accident he was in hospital for some time. It was also pointed out that any confrontation might have been less likely once legal advice had been sought. It was submitted that the plaintiff was of little commercial sophistication and did not have a confident command of the English language. In summary, it was submitted that to hold against the plaintiff the fact that he did not confront the defendant or its employees was an inappropriate mode of analysis. As indicated earlier, while standing alone it would not be sufficient to justify the trial judge’s reasoning, it cannot be an irrelevant mode of analysis.
The plaintiff’s complaint that the defendant should have called each of the eleven employees who appeared in court to deny having given the plaintiff the alleged advice is invalid. The plaintiff himself denied that any of them had advised him in the terms complained of. The defendant, on the strength of evidence which the trial judge accepted and which the plaintiff did not claim to have been wrongly accepted, found that there was no other relevant employee. It follows that there was no other member of staff on the plaintiff’s own evidence who could have given relevant evidence. Those circumstances meant that Jones v Dunkel (1959) 101 CLR 298 was inapplicable.
In Payne v Parker [1976] 1 NSWLR 191 at 201-202, Glass JA said:
“Whether the principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained.
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According to Wigmore, par 285, the second condition is fulfilled where the party or his opponent claims that the facts would thereby be elucidated. Under other formulations, the condition is made out when the witness is presumably able to put a true complexion on the facts: Jones v Dunkel [(1959) 101 CLR 298 at 308], might have proved the contrary: ibid [(1959) 101 CLR 298 at 312]; would have a close knowledge of the facts: O’Donnell v Reichard [[1975] VR 916 at 921], or where it appears that he had knowledge: Nuhic v Rail & Road Excavations [[1972] 1 NSWLR 204 at 211]. I would think it insufficient to meet the requirements of principle that one party merely claims that the missing witness has knowledge, or that, upon the evidence, he may have knowledge. Unless, upon the evidence, the tribunal of fact is entitled to conclude that he probably would have knowledge, there would seem to be no basis for any adverse deduction from the failure to call him.”
Here, the only relevant witnesses to be called were those who, according to the plaintiff, did not speak to him. Their evidence would not have “elucidated” the facts beyond the extent to which the plaintiff had done so. The employees of the defendant who were not called are people whom the plaintiff “merely claims” to have material knowledge. The trial judge concluded that they probably would not have material knowledge. Hence there is no room for Jones v Dunkel to operate.
The truth is that the plaintiff’s denials of having been served by the eleven employees and the trial judge’s acceptance of the proposition that there were no other employees were fatal to the reliability of the plaintiff’s account and the trial judge’s statement that he was not satisfied that the relevant advice had been given may have been a polite way of cloaking a conclusion implicit in his reasoning that in fact the advice was not given.
In oral argument, it was pointed out on behalf of the plaintiff that the identification parade involved an attempt to identify a person whom the plaintiff had only ever seen once. A positive claim of a successful identification might have excited disbelief. Indeed, it was submitted that it might be enormously damaging for the plaintiff to have made such a claim. It was also submitted that when each answer to a series of questions in the form, “The gentleman who has answered the name of Stephen Butler, is he the man who gave you advice”, was “no”, the true meaning of the evidence is that the plaintiff was simply saying “I am not prepared to put my oath positively to the proposition that he is the man who gave the advice but he could have been.” It was also submitted that there was no evidence and there should have been that it was not the practice of employees of the defendant to give advice of the character complained of.
I would reject these arguments. The difficulty of identification after one encounter is no doubt a real difficulty but it was inherent in the case which the plaintiff was bringing. Once the plaintiff had denied that the persons in court had served him in the shop, there ceased to be any point in calling them. Whatever the plaintiff’s difficulties with English, on the face of the cross-examination as recorded, to say “no” does not mean “I’m not sure”. If that was what the plaintiff had intended, the matter could have been clarified in re-examination but there was no re-examination on that point.

A further submission advanced orally concerned the following passage in the reasons for judgement:
“The procuring of these persons to this court from Narellan for the identification parade must have been enormously disruptive of the defendant’s enterprise and given the circumstances, it can be seen as a forensic exercise in fairness to the plaintiff that led the plaintiff’s case nowhere.”
It was submitted on behalf of the plaintiff that it was wrong for the trial judge “to visit upon the plaintiff’s head” the inconvenience to the defendant of having brought those employees to the court and that the passage just set out was a veiled criticism of the plaintiff. It was further submitted that the defendant could have had photographs taken of the relevant employees and had them brought to court for the consideration of the plaintiff. Finally, it was submitted that it was wrong to describe what happened as a forensic exercise carried out in fairness to the plaintiff.
First, it seems to me that the trial judge was not criticising the plaintiff for the fact that the identification parade was held; it was not the plaintiff who had asked for it.
Secondly, whether or not the identification parade was a forensic exercise being carried out in fairness to the plaintiff does not matter. Even if the trial judge intended to say that, or even if it was a flaw in his approach to say that, it is not a flaw which is decisive and certainly not one which would justify a new trial. The Court is not able to order a new trial unless of opinion that some substantial wrong or miscarriage has been occasioned by the ground of appeal which succeeds: Supreme Court Rules Pt 51 r 23(1)(d).
The next matter dealt with in oral argument related to the trial judge’s treatment of the plaintiff’s evidence about flange changing, which was quoted above. The trial judge said that the plaintiff’s evidence was “far from convincing”. If the trial judge was intending to reject the plaintiff’s evidence on that subject, it was capable of having an impact on his credibility on other subjects and to that extent I would reject the plaintiff’s oral argument, which was that doubts about the plaintiff’s evidence in relation to the changing of flanges could not rationally affect his reliability on whether the conversation occurred. In the course of oral argument, various possibilities were floated between the bar table and the Court as to the significance of the flange evidence. Even if the trial judge committed some error in relation to the flange evidence or even if there is some obscurity in his reasoning about it, it is not sufficiently decisive in his reasoning to justify a new trial.
A further argument advanced on behalf of the plaintiff orally related to the credibility of the plaintiff’s wife, brother-in-law and cousin in relation to issues relating to what happened to the purchase docket, what happened to the grinder and what happened to the disk fragments from the disk which had shattered and injured the plaintiff. The submission advanced on behalf of the plaintiff was that if there were difficulties with the particular aspects of the evidence of those witnesses, they did not flow on to justify a rejection of the plaintiff’s evidence. A related criticism was that insufficient reasoning was exposed to justify the criticisms made by the trial judge of those witnesses. As to that latter criticism, in my opinion there was sufficient reasoning, brief though it was. The trial judge indicated that there were contradictions between the evidence of the witnesses (as there were) and indicated other weaknesses in it.
It is not clear whether the trial judge intended his criticisms of those witnesses to flow on to his evaluation of the plaintiff. There was unquestionably an important relationship between the plaintiff’s evidence and their evidence. Some of the difficulties in the plaintiff’s case were that there was no corroboration for the vital conversation, that there was no documentary proof of purchase from the defendant and that the absence of the grinder meant that it was not possible to test those parts of the plaintiff’s testimony that were related to the grinder.
The calling of those witnesses was a decision taken by the plaintiff’s advisers in order to explain the lack of some of those vital ingredients. The task committed to those witnesses was a task which they failed satisfactorily to perform. To the extent that the trial judge took this into account in rejecting the plaintiff’s case as a whole he was entitled to. If on the narrower question of the plaintiff’s personal credibility the trial judge is said wrongly to have used the evidence of the others to reject the plaintiff’s evidence, the answer is that the trial judge did not reject the plaintiff’s evidence but merely found himself unable either to accept or to reject it. In coming to that conclusion, the trial judge was entitled to take into account the evidence of the other witnesses called on behalf of the plaintiff.
The plaintiff’s submission that in all the circumstances the trial judge failed to use or palpably misused his advantage in having seen the witnesses is invalid. That contention is not supported by the transcript record of the trial, nor is it supported by the reasons for judgment. Delivered as they were very soon after the trial judge heard the evidence, they reveal a sound grip on the central elements of the evidence. Nor are the particular matters relied on in oral argument concerning the failure to complain, the identification parade and the failure to call employees sufficient to support the argument.
Orders
I propose the following orders:
1. The appeal is dismissed.
2. The appellant is to pay the respondent’s costs of the appeal.
BEAZLEY JA: I agree.
SANTOW JA: I agree.
BEAZLEY JA: The orders of the Court will be as proposed by Heydon JA.

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LAST UPDATED: 08/03/2002