Scuderi v Batticciotto

[1999] FCA 1587

FEDERAL COURT OF AUSTRALIA

Scuderi v Batticciotto [1999] FCA 1587

APPEALS – fresh evidence - appeal from judgment of Full Court of ACT Supreme Court setting aside order of Master and ordering retrial of action - whether Full Court of ACT Supreme Court erred in ordering retrial of action, on basis of subsequent fresh evidence – discussion of test to be applied by Court when deciding whether to disturb judgment on basis of fresh evidence - no error by Full Court.

Orr v Holmes (1948) 76 CLR 632 followed
Greater Wollongong Corporation v Cowan (1955) 93 CLR 435 followed
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 referred to

VINCENT SCUDERI v CHARLES BATTICCIOTTO
A 41 OF 1999

SPENDER, HILL, TAMBERLIN, SACKVILLE and EMMETT JJ
12 NOVEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A 41 OF 1999

ON APPEAL FROM A FULL COURT OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

VINCENT SCUDERI
Appellant

AND:

CHARLES BATTICCIOTTO
Respondent

JUDGES:

SPENDER, HILL, TAMBERLIN, SACKVILLE

and EMMETT JJ

DATE OF ORDER:

12 NOVEMBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent's costs of the appeal, to be taxed if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A 41 OF 1999

ON APPEAL FROM A FULL COURT OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	VINCENT SCUDERI Appellant
AND:	CHARLES BATTICCIOTTO Respondent

JUDGES:	SPENDER, HILL, TAMBERLIN, SACKVILLE and EMMETT JJ
DATE:	12 NOVEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

SPENDER J:

1. This is an appeal from orders made by a Full Court of the Supreme Court of the Australian Capital Territory (Miles CJ, Gallop and Crispin JJ) on 24 May 1999, setting aside orders made by Master Connolly on 1 May 1998, and ordering a retrial of an action for damages for personal injury, the retrial being limited to the question of damages.  In the event that the appeal to this Court is successful on the “fresh evidence” grounds, the appellant seeks to substitute a different costs order to that ordered by the Master.

2. There was no issue before the Full Court of the Supreme Court of the Australian Capital Territory that the test articulated in Orr v Holmes (1948) 76 CLR 632 at 640, and stated in slightly different terms in Greater Wollongong Corporation v Cowan (1955) 93 CLR 435 at 444, was the appropriate test to be applied in the present case. A judgment entered after a hearing on the merits will only be disturbed on the basis of fresh evidence if no reasonable diligence on the part of a party would have enabled that party to procure the evidence, and it is almost certain or reasonably clear that, if the evidence had been available, an opposite result would have been reached.

3. The appellant here contends that the Full Court of the Supreme Court of the Australian Capital Territory failed to apply the test correctly.  It is contended that the court erred in finding that reasonable diligence would not have enabled the respondent to procure the evidence at trial, and that the court further erred in holding that it is likely that the opposite result would have been reached.

4. In my opinion the appeal to this Court should be dismissed with costs for the reasons given below by Gallop J.  I respectfully adopt his Honour's reasons for concluding that there was no want of due diligence, and his Honour's reasons for concluding that the absence of the fresh evidence was crucial to the result reached by the Master.

5. Paragraph 20 of the Master’s reasons of 1 May 1998 demonstrate to me that Gallop J was correct in his finding that “…the evidence of [the plaintiff’s hospital] attendances and complaints went to the very core of most of the medical opinions that were in the case and certainly, if only as to credibility, seem to have been directly taken into account by the Master”.  In my view the appeal should be dismissed with costs.  It is not necessary to consider, in the light of that order, whether, having regard to the Calderbank offer, the Master's order as to costs should or should not be disturbed.

   HILL J

6. I agree with his Honour the presiding judge and for the reasons he has given that the appeal should be dismissed.  I have also had the advantage of reading in advance the judgment about to be given by Sackville J and I agree also with his Honour's reasons.

7. The appellant submitted that the Master had failed to exercise his discretion as to costs having regard to the terms of a Calderbank offer made by the appellant.  As the appeal is to be dismissed this question will strictly not arise.

8. The respondents to the appeal pointed out that the Master had originally made an order for costs as a costs sanction with the result that the plaintiff did not recover any of the costs of the five day hearing.  In my view, even if the appeal had been allowed, no error was shown in the exercise by the Master of his discretion in the awarding of costs.

   TAMBERLIN J:

9. I agree with the reasons of his Honour the presiding judge that the appeal ought to be dismissed with costs.  I also have had the advantage of reading the draft reasons for judgment to be delivered by Sackville J and I agree with those reasons.

   SACKVILLE J:

10. As Spender J has said, there is no dispute on this appeal that the Full Court of the Supreme Court of the Australian Capital Territory applied the correct test when deciding to order a new trial.  The only question that has been debated is whether the test was correctly applied to the circumstances of this case. 

11. The test was restated by the High Court in Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, at 141-142:

    “In cases where all that is involved is the discovery by the unsuccessful party of fresh evidence, Orr v Holmes and Greater Wollongong Corporation v Cowen establish that the reconciliation of ‘the demands of justice’ and the ‘policy’ that there be an end to litigation at least prima facie (or ‘generally’) dictate that the successful party should be deprived of the verdict in his favour only if the unsuccessful party persuades the appellate court that there was no lack of reasonable diligence on his part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict.  Such a stringent rule in that ordinary class of case is supported by considerations of both justice and public interest.  Considerations of justice support it in that it would be unfair to the successful party if it were to be deprived of a verdict obtained after a trial on the merits and be subjected to the expense, inconvenience and uncertainty of a further trial merely because some relevant evidence had, without fault on his part, been unavailable to the unsuccessful party at the time of the trial.  Considerations of public interest support it in that it is desirable in the public interest that there be finality in litigation in other than the truly exceptional case.” (Citations omitted.)

    As the High Court states in this passage, the test is a stringent one.  Nonetheless, I think it has been satisfied in the present case. 

12. It is fair to say that the respondent’s factual claims were not necessarily presented clearly or precisely in his evidence at the trial.  As Mr Walker fairly recognised on behalf of the appellant, part of the difficulty may have been the respondent’s imperfect understanding of English.  Be that as it may, a reading of the transcript as a whole shows clearly enough that the respondent claimed that immediately or very soon after the accident he experienced pain all over his body including his back.  In his evidence, the respondent asserted that at the time he had complained of the pain to one or more doctors.  He also claimed that the pain in his back, although not at first as serious as the pain in his elbow, neck and upper chest, gradually worsened over a period of time.  He said that by September 1988, three months after the accident, the pain in his back had become “very uncomfortable”. 

13. The Master found that the first complaint of lower back pain was not made by the respondent until February 1989, that is, seven to eight months after the accident.  He also found that it was unlikely that an accident which occurred in June 1988 had caused damage to a disc that remained unsymptomatic for that period of seven to eight months.

14. It was plainly critical to the Master’s reasoning that the respondent had made no complaint about lower back pain to any doctor until February 1989.  It was that finding that led to the rejection of the medical evidence which supported a causal link between the respondent's undoubted disability and the motor vehicle accident which had occurred in June 1988.  The Master’s finding was also critical to his rejection of the respondent's evidence as to when he first experienced back pain.  It must be remembered that the Master rejected the respondent's evidence (and, for that matter, that of his wife) that he had experienced substantial back pain in September 1988, some three months after the accident, and five months before the date at which the Master found that the respondent had in fact first experienced lower back pain.

15. The medical records from Royal Canberra Hospital, had they been available for trial, would indeed have shown that the respondent complained on 1 July 1988 (two days after the accident) of pain in his back.  It is true that the complaint about back pain does not feature as prominently in the Hospital records as other complaints made by the respondent, particularly about pain in his elbow, anterior chest and neck.  For example, the records of 29 June 1988, the day of the accident, record him as being in "extreme pain", principally from a dislocated elbow.  On 4 July 1988, five days after the accident, the respondent complained about pain in his anterior chest and neck. 

16. Yet the records are entirely consistent with the case the respondent sought to advance at the trial.  That is, they are entirely consistent with his claim that he experienced lower back pain immediately or very soon after the accident.  His account was that the back pain was not, at the time, major when compared with his other symptoms.  However, on his case, the pain gradually worsened over a period of months, doubtless coinciding with a diminution in the other symptoms.  The medical records from Royal Canberra Hospital support the respondent's claim. 

17. It seems to me, having regard to the emphasis understandably placed by the Master on the lack of a contemporaneous complaint about back pain, to be “reasonably clear that the fresh evidence would have produced an opposite verdict”.  I appreciate, as Mr Walker pointed out, that there was other evidence bearing on the question of when the respondent first experienced back pain.  It is also true that the Master formed an unfavourable view of the respondent as a witness.  But the crucial issue was whether, on the balance of probabilities, the respondent's back injury (the fact of which was not in dispute) was caused by the motor vehicle accident.  The fact that the respondent complained very soon after the accident about back pain is, in my view, critical to the resolution of that issue.  Indeed, that was the view of the Master and it explains the emphasis he placed upon the absence of any contemporaneous complaint.  The records of Royal Canberra Hospital, had they been available at the trial, would have required the Master to re-evaluate the other evidence that led him to reject the respondent's account.  It also would have been very likely to have required him to reconsider the evidence given by the medical practitioners whose opinions he regarded as unhelpful.  The end result is that it is reasonably clear that the fresh evidence would have produced an opposite verdict.  Certainty is not required.

18. In my view, the second condition required by the authorities is also satisfied.  The respondent's solicitor followed the usual course when requesting production of the records from Woden Valley Hospital, the successor to Royal Canberra Hospital.  It is true that the absence of any positive response from Woden Valley Hospital, having regard to the respondent's instructions, might well have prompted the respondent's solicitor to make further inquiries.  But, as Mr Walker very fairly accepted, the respondent's solicitor knew that the appellant's solicitors had issued a subpoena to Royal Canberra Hospital, couched in wide terms, seeking production of the relevant records.  Further, the respondent's solicitor knew that this subpoena had yielded a negative response.  In these circumstances, it was reasonable for the solicitor to assume that any further action to secure production of the records of Royal Canberra Hospital would have been futile.  It seems to me, therefore, that the respondent's solicitor exercised reasonable diligence to obtain production of the records.

19. Accordingly, the appeal should be dismissed, with costs.  In the light of these orders, it does not seem to me necessary to address the question of the significance of the Calderbank letter.  I can say, however, that I see no error of principle in what the Master did on that issue.

    EMMETT J:

20. I have the misfortune to disagree.  However, in view of what has fallen from my brethren, I will be brief in giving my reasons.

21. The test laid down by the High Court in the several cases to which reference has been made, particularly in the observations of Sir Owen Dixon in Orr v Holmes (1948) 76 CLR 632 and Greater Wollongong Corporation v Cowan (1955) 93 CLR 435, is a stringent one. First it requires that no reasonable diligence on the part of the respondent would have enabled him to procure the evidence.

22. I am mindful of the facts to which my brother Sackville has referred in relation to the steps taken by the plaintiff's solicitor to obtain material from the hospitals.  It is significant, however, in my view, that the initial response produced a document from what was originally the Woden Valley Hospital.  It appears that, until 1991, there were two hospitals relevantly in the Canberra area.  One, known as the Royal Canberra Hospital, closed in 1991.  The other hospital was known as the Woden Valley Hospital and was renamed the Canberra Hospital, presumably some time after the closing of the Royal Canberra Hospital.

23. Upon closing of the Royal Canberra Hospital, records from that hospital were held in “secondary and tertiary remote storage areas”, whatever they may be.  However the medico-legal clerks of the Canberra Hospital were responsible for obtaining access to those records upon request.

24. The evidence of the plaintiff, and presumably his instructions to his solicitors, was that he attended the Queanbeyan Hospital immediately after the accident and was then referred to what was then the Royal Canberra Hospital.  In the course of a week or so, he had several attendances at the Royal Canberra Hospital and, in the middle of those, an attendance at the Woden Valley Hospital.

25. In 1993, in accordance with standard practice, the plaintiff's solicitor wrote to the Woden Valley Hospital, seeking a copy of all “discharge papers, clinical notes, reports and any other papers relating to [the plaintiff's] disabilities and treatment resulting from the accident [which was said to have occurred on 29 June 1988]”.

26. In accordance with what was apparently the practice, no indication was given in that letter that the plaintiff had in fact been treated not only at Woden Valley Hospital but also at the Royal Canberra Hospital.  After a further exchange with the hospital, in which a specific authority from the plaintiff was requested, the Woden Valley Hospital (as it was then still known) sent to the plaintiff's solicitors records relating to the plaintiff’s attendance at Woden Valley Hospital on 3 July 1988.

27. We now know that the plaintiff also attended the Royal Canberra Hospital on several other days being 1 July, 4 July and 7 July 1988.  There were, in fact, records in existence relating to those attendances but, for reasons which are not clear, they were not produced by the Woden Valley Hospital. It is the records relating to those three attendances which give rise to the issue before this Court.  In one of those, a reference is made to a complaint by the plaintiff of pain in the back, without any specificity as to the area or the degree of pain.  In the other two records, there is no mention of any pain in the back.

28. In the light of what must have been the plaintiff's instructions concerning his attendance at the two hospitals in the Canberra area, it seems to me that it ought to have been apparent to his solicitor when he received a response referring only to the attendance at Woden Valley Hospital, that there was some oversight.  The evidence before the Full Court of the Supreme Court of the ACT indicated that the plaintiff had no difficulty on a personal attendance in obtaining the documents.

29. It is for the party seeking leave to adduce further evidence to satisfy the court that no reasonable diligence would have enabled the evidence to be procured.  Reasonable diligence, in my view, would have required an inquiry of the hospital as to the apparent incompleteness of its response.  It may well be, in the light of the failure to produce anything in answer to a subpoena, that the response may well have been the same.  Nevertheless, in circumstances that are not totally clear, the plaintiff was able to obtain the documents from the hospital.  On the material before us, therefore, I would not be satisfied that no reasonable diligence on the part of the respondent would have enabled him to procure the evidence in 1993.

30. That would be sufficient to dispose of the appeal in favour of the appellant.  I will therefore not say very much about the second issue. However, I do have some reservations, notwithstanding the forceful views expressed by my brethren, as to whether or not it can be said that it is reasonably clear that, if this additional material had been available, an opposite result would have been reached, not that an opposite result might have been reached.

31. The Master, in his reasons, characterised the plaintiff's claim and his evidence as follows:

    “While this note [the original general practitioner’s record in February 1989 recording lower back ache complained of by the plaintiff] is ambiguous, and counsel for the plaintiff argued that it could mean back ache since the accident, this however was not the plaintiff’s claim in his evidence in chief and cross examination, and the treating general practitioner was not called to explain his note.”

    In other words, the Master, as I read that observation, treated the plaintiff as saying that he did not suffer back pain immediately but that in due course pain developed.

32. When asked whether the plaintiff in fact gave evidence of suffering pain immediately after the accident, counsel for the plaintiff referred us to several passages in the transcript.  In none of those passages is there any explicit or unequivocal statement by the plaintiff that he did, in fact, suffer pain immediately after the accident.

33. Certainly there is evidence that he was “very painful”, and that he suffered pain “all over my body”.  He then said that, within several months, pain developed when he tried to drive his truck again.  It is significant that in the records that have been produced belatedly, there is no complaint of lower back pain, and on two occasions there was no complaint of pain at all.  Those matters, coupled with the evidence that was given by the plaintiff, lead me to conclude that I do not find it reasonably clear that an opposite result would have been achieved before the Master even if the documents had been available.  I regard them as equivocal although I am, however, mindful of the matters that have been referred to by my brethren.

1. For the reason that I have indicated, it is not necessary for me to reach a final conclusion on this question, and I would have found for the appellant on the other question.  In the light of the views expressed by my brethren, there is no point in my indicating what orders I would otherwise have made. 

   SPENDER J:

2. The orders of the Court are that the appeal be dismissed, the appellant pay the respondent’s costs of the appeal, to be taxed if not agreed.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Hill, Tamberlin, Sackville and Emmett.

Associate:

Dated:             30 November 1999

Counsel for the Appellant:	Mr B W Walker SC with Ms C E Adamson
Solicitor for the Appellant:	Abbott Tout Harper & Blain
Counsel for the Respondent:	Mr G Richardson SC
Solicitor for the Respondent:	Maliganis Edwards Johnson
Date of Hearing:	12 November 1999
Date of Judgment:	12 November 1999