Singler v Ferguson

[2010] NSWCA 325

New South Wales

Court of Appeal

CITATION:	Singler v Ferguson [2010] NSWCA 325
HEARING DATE(S):	15 and 16 September 2010
JUDGMENT DATE:	29 November 2010
JUDGMENT OF:	Beazley JA at 1; Young JA at 57; Handley AJA at 133
DECISION:	1. Appeal allowed; 2. Set aside the verdict and judgment for the respondent made in the Court below; 3. Order that the matter be remitted to the District Court for rehearing; 4. Save for the costs of 5 November and 1 December 2008, order that the costs of the first hearing at first instance abide the outcome of the new trial. The appellant is to pay the respondent’s costs of 5 November and 1 December 2008; 5. Order that the respondent pay the appellant’s costs of the appeal; 6. Order, pursuant to the Civil Procedure Act 2005, s 26, that prior to the matter being remitted, the proceedings are referred to mediation. [The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
CATCHWORDS:	EVIDENCE – medical evidence – medical evidence obtained during course of trial – whether party under a duty to disclose relevant medical evidence obtained during course of trial - EVIDENCE – credit – adverse credit finding contended for by counsel – proposition not put to witness – whether trial judge erred in relying on proposition not put to witness to make adverse credit finding - PROCEDURAL FAIRNESS – right to a fair trial – right of a party to be appraised of the case which he or she must meet – Stead v State Government Insurance Commission [1986] HCA 54, (1986) 161 CLR 141 - PROCEDURAL FAIRNESS – right to a fair trial – material to which trial judge relied not put to appellant in cross-examination – whether adverse credit findings contended for by counsel should have been put to appellant in cross-examination – Stead v State Government Insurance Commission [1986] HCA 54, (1986) 161 CLR 141
LEGISLATION CITED:	Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
CATEGORY:	Principal judgment
CASES CITED:	Banbury v Bank of Montreal [1918] AC 626 Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 Duong v Tran [2010] NSWCA 280 Jones v National Coal Board [1957] 2 QB 55 at 67 Kuru v New South Wales [2008] HCA 26; 236 CLR 1 McCarthy v Law Society of NSW (1997) 43 NSWLR 42 Re Association of Architects of Australia; Ex parte Municipal Officers of Australia (1989) 63 ALJR 298 Rhesa Shipping Co SA v Edmunds (The 'Popi M') [1985] 1 WLR 948 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 Sullivan v Department of Transport (1978) 20 ALR 323
PARTIES:	Tony Singler (Appellant) Jeffrey Ferguson (Respondent)
FILE NUMBER(S):	CA 2009/298382
COUNSEL:	D Kennedy SC; S Smith (Appellant) S Campbell SC; P Cummings (Respondent)
SOLICITORS:	Bale Boshev Lawyers (Appellant) Moray & Agnew, Solicitors (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 361/04
LOWER COURT JUDICIAL OFFICER:	Sidis DCJ
LOWER COURT DATE OF DECISION:	15 May 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Singler v Ferguson [2009] NSWDC 88

- 41 -

CA 2009/298382

BEAZLEY JA
YOUNG JA
HANDLEY AJA

29 November 2010

Tony Singler v Jeffrey Ferguson

Headnote

On 7 April 2003, the appellant/plaintiff, Mr Singler and the respondent/defendant, Mr Ferguson were involved in a motor vehicle accident. The accident occurred at an intersection controlled by traffic lights. Both drivers asserted the other had, or must have, gone through a red light. The respondent’s evidence was supported by his passenger. The trial ran for 10 days between May and December 2008. The determination of the case revolved significantly around the credit of the opposing parties.

In addition to the question of liability, there was competing expert medical evidence with respect to the extent of the appellant’s injuries. Expert medical evidence was provided by Dr Ghabrial in support of the appellant’s case. In his evidence, Dr Ghabrial noted that an MRI scan was needed “ to be absolutely 100% certain ” of his findings of injury and that he would “ defer to MRI examination ”: [17], [22].

On the ninth day of the trial, after the appellant and Dr Ghabrial had given evidence, it became apparent that the appellant had undertaken an MRI scan on 29 September 2008. Senior counsel for the appellant contended that this evidence had not been disclosed because, inter alia, the appellant did not yet know the result of the scan: [28]. The appellant was not recalled for further cross-examination. Notwithstanding this, counsel for the respondent submitted that his Honour “ would have to draw the inference that there had been a lack of frankness about a piece of evidence ”: [27].

The trial judge, Sidis DCJ preferred the evidence of the respondent to that of the appellant and dismissed the claim. In so doing, her Honour made specific adverse credit findings in relation to three aspects of the appellant’s evidence, including his alleged failure to disclose the MRI evidence.

The appellant appealed from the decision of her Honour on the basis that:

(i) In making an adverse credit finding, her Honour relied, in part, on assertions made by counsel for the respondent , which were not put to the appellant in cross-examination .

(ii) Her Honour failed to deal with an admission allegedly made by the respondent at the scene of the accident, as contended by the appellant .

Held, allowing the appeal (by majority)
Per Beazley JA (Handley AJA agreeing):

(i) If counsel for the respondent wanted to challenge the appellant’s credit on the basis that he had not revealed that he had had an MRI scan, counsel was obliged, as a matter of fairness, to cross-examine the appellant on that issue: [46].

(ii) Error having been established it was not necessary to consider the additional grounds of appeal relating to the question of the admission: [55].

Per Young JA, in dissent:

(iii) A new trial was not justified merely because the appellant was not cross-examined on his non-disclosure of the MRI scan. In considering whether a party has been given a reasonable opportunity to present his case, it is relevant to enquire whether a party or his legal representative should reasonably have apprehended that the issue was a live issue. The utterances of the primary judge made it clear that she felt that what the appellant knew about the MRI scan was of critical importance to her. Senior counsel for the appellant made a forensic decision not to meet these concerns with further evidence: Re Association of Architects of Australia; Ex parte Municipal Officers of Australia (1989) 63 ALJR 298, applied.

(iv) It is not appropriate to say that a trial has miscarried because counsel makes a forensic decision based on his or her misconceived reading of a judge’s reaction. Although a judge must be careful not to make utterances that would reasonably mislead counsel, a judge need not respond to query from counsel: Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141; Banbury v Bank of Montreal [1918] AC 626; Kuru v New South Wales [2008] HCA 26; 236 CLR 1, considered.

v) There were some unsatisfactory points in the judge’s treatment of the evidence. However, given the deficiencies in the plaintiff’s evidence, had these problems not existed, the trial could not possibly have produced a different result: Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141, applied.

vi) Given that the admission was equivocal, the lack of evidence of what was actually said to the police, and that little emphasis was placed on it at trial, the admission was not a significant factor to the appeal result: [77].

CA 2009/298382

BEAZLEY JA
YOUNG JA
HANDLEY AJA

29 November 2010

Tony Singler v Jeffrey Ferguson

Judgment

1 BEAZLEY JA: This is an appeal from a judgment of Sidis DCJ dated 15 May 2009, in which her Honour found a verdict for the defendant/respondent in respect of the appellant’s claim for damages arising from a motor vehicle accident on 7 April 2003 between the appellant’s vehicle and the respondent’s vehicle.

2 The evidence on liability comprised the evidence of the appellant and the opposing evidence of the respondent and the passenger in his vehicle, Mr Lewis. Both drivers asserted the other had, or must have, gone through a red light. Mr Lewis supported the respondent’s version. The determination of the case therefore revolved around the respective credit of the opposing parties.

3 The notice of appeal raised some 27 grounds of appeal. In the course of argument on the appeal, it became apparent that the central issue for determination was whether her Honour’s credit finding adverse to the appellant could stand. The challenge arose from the failure of trial counsel for the respondent to cross-examine the appellant on the matter which formed one of the bases of her Honour’s credit finding. A further question arose from her Honour’s failure to deal with an admission alleged to have been made by the respondent at the scene of the accident.

Background facts

4 The appellant’s case was that at about 7.45 am on the day of the accident he was travelling in a northerly direction along Silsoe Street, Mayfield, approaching the intersection of Silsoe Street and Maitland Road, which was controlled by traffic lights. Maitland Road is a four laned road with two lanes in each direction.

5 The appellant said that as he approached the intersection, the lights were green in his favour. He observed two cars stopped at the lights on Maitland Road, facing west (that is, on his right). He also saw a blue vehicle on Maitland Road, facing east, also stopped at the lights. That vehicle was on the inside or kerbside lane of Maitland Road.

6 According to the appellant, as he entered the intersection, the lights changed to amber. He continued to proceed through the intersection, travelling at a constant speed of about 50 km per hour. He said:

“A. And then the four wheel drive ute swerved around the stationary car parked on the inside lane and entered the intersection across in front of me.

Q. And did you apply your brakes?
A. I hit the brakes, yes.

Q. And did that vehicle – did it appear to endeavour to slow down?
A. No.

Q. When you first observed it, how far was it away from this vehicle that was stationary on the inside lane?
A. Very close.

Q. And was that the first occasion you observed it?
A. Yes.

Q. An impact occurred. What portion of your vehicle came into impact or what portion of the other vehicle came into impact with you?
A. He came across in front of me and the front of my car collided with this driver’s door and the back tray.

Q. And where was there damage to your vehicle?
A. The whole front end.”

7 In cross-examination, the appellant agreed that, “until you’re right at the intersection it’s difficult to see what’s coming at all on your left” (which was the direction from which the respondent was coming). He also said he saw the respondent’s vehicle swerve from the inside lane to the right hand lane. He was cross-examined as to when he saw the respondent’s vehicle undertake this manoeuvre and he said it was just as he (the appellant) was getting close to the traffic light line. The appellant said he braked, but by then he was right on the point of impact.

8 There was some conflict in the evidence in the respondent’s case as to his position on the roadway at various times, including before the collision. This conflict included whether the lights changed to green immediately before or during the respondent’s lane change. The respondent’s version of the accident in his evidence in chief was that he turned into Maitland Road about 60 m from the intersection of Maitland Road and Silsoe Street. He was travelling in the inside lane, at 25-35 km per hour. He came up behind a blue van which was stationary at the lights. The lights turned green, he changed lanes and increased speed, so that he was travelling at about 45 km per hour as he went through the intersection.

9 The respondent was cross-examined to the effect that he changed lanes because he otherwise would have collided with the blue van which was stationary at the lights and that, having changed lanes, he had decided to run the red light. The respondent denied this. He said that the blue van had just started to move off when he moved into the other lane. However, later in his evidence, the respondent said he was in the middle of the intersection when the blue van started to move.

10 Mr Lewis gave evidence which essentially supported the respondent’s version, although there was some difference in the detail. The appellant complains that these differences were significant and were not resolved by her Honour.

11 There was nothing in the objective circumstances of the accident that pointed to the appellant’s or the respondent’s version being the more probable. However, the appellant gave evidence that after the accident, he, the respondent and Mr Lewis were all on the footpath. He was asked whether he had been able to overhear anything said by the respondent. He said that he had heard the respondent say:

“When the police come we'll tell them that we had the green. There’s two of us. There’s only one of them. No witnesses stopped.”

12 The appellant relied upon this as an admission that the respondent proposed to concoct a story to tell the police. I shall return both to this question and to the complaint that her Honour failed to resolve the differences in the evidence in the respondent’s case.

13 The challenge to her Honour’s credit finding arose out of a circumstance that arose at trial. The appellant alleged that he had sustained injuries in the accident to his neck and back. He also alleged that he suffered a psychiatric injury. There was competing medical evidence in respect of both his physical and psychiatric injury.

14 The appellant had medical support for his neck and back injury from Dr Ghabrial, orthopaedic and spinal surgeon. In his report dated 22 October 2003, Dr Ghabrial expressed the opinion that:

“Clinical assessment and x-rays regarding the cervical spine suggested a severe soft tissue injury with instability of the C2/3 and C3/4 segments. I could not rule out the high possibility of a disc prolapse in his cervical spine.

…

Regarding the back, I could not exclude the high possibility of lower lumbar disc prolapse.”

15 Dr Ghabrial considered that the appellant required an MRI of his whole spine and said that he would be happy to review the results once an MRI was performed. In a follow-up report dated 18 August 2006 Dr Ghabrial confirmed the opinion he had given in his first report. There was no MRI report at that time.

16 The trial commenced on 26 May 2008 and proceeded for four consecutive days. It was adjourned until 25 August and proceeded until 27 August. It was then adjourned until 3 November and proceeded until 6 November (with no hearing taking place on 5 November due to a problem with a subpoena issued by the appellant) when it was again adjourned to 1 December when it concluded. Dr Ghabrial was called to give evidence on 4 November 2008. This was the ninth day of the trial.

17 In his evidence in chief, Dr Ghabrial confirmed his opinion given in his two reports, but agreed that with the type of pathology the appellant exhibited, an MRI scan was needed “to be absolutely 100% certain”. Dr Ghabrial said he had suggested that an MRI be undertaken in his first report. In cross-examination, it was suggested to Dr Ghabrial that clinical diagnosis, which, apart from x-rays, had been the basis of his opinion, had its limitations. He responded:

“Well, everything has limitations, you know; clinical diagnosis has limitations, investigations have limitations. We’re trying to put a jigsaw puzzle [sic] and make a diagnosis. Everything has limitations, but nine out of ten of people I would do an MRI scan, and I can give you the results, tend to have pathology. So I don’t do MRI scans just for everyone, but if I suggest to have MRI’s, then maybe I suspect highly that there is a disc problem.”

18 On 6 November, counsel for the respondent tendered a report from Hunter Imaging Group in respect of MRI examinations of the appellant carried out on 29 September 2009.

19 Senior counsel for the appellant protested that he had not previously seen that report and objected to its tender. He said that he did not know how the report came into the respondent’s possession.

20 The MRI report stated, in respect of the cervical spine, “Normal study”. In respect of the lumbar spine, the report stated:

“The L5/S1 disc is degenerating with loss of T2 signal and diffuse posterior annular bulging. No superimposed protrusion seen. No evidence of neural compromise.

No other focal disc abnormality.

The central canal is capacious throughout and there is adequate foraminal patency at all levels.

Normal conus.

Conclusion

L5/S1 disc degeneration. No neural compromise or other abnormality.”

21 Counsel for the respondent explained that on the afternoon of 4 November, the appellant’s solicitors had provided to the respondent’s solicitors a list of medical expenses comprising a printout of payments made by the workers compensation insurer. Counsel informed the Court that there was an expense listed for an MRI and the respondent had contacted Hunter Imaging Group to obtain a copy of the report. Counsel said that it had been entitled to obtain the personal medical records of the appellant pursuant to the standard authority that a person is required to provide to a defendant in motor accident compensation matters.

22 Counsel for the respondent reminded the Court that the relevance of the MRI derived from the evidence of Dr Ghabrial, who had diagnosed “all sorts of problems” with the appellant’s spine “based upon clinical examination only” and had said “that he would defer to MRI examination”.

23 Senior counsel for the appellant again protested that the report had never been served. He then said:

“I must say this, your Honour, [the appellant] did mention on Monday morning that he had had an MRI scan. I took the view this case was so far down the track, I didn’t have a report, how are you going to get one, so we just went on with the case. Now, I don’t know how [the respondent] has been able to get hold of this report because it has to be confidential. What rights would this doctor have to supply such a report to [the respondent] without the consent of [the appellant]?”

(The reference to “ Monday ” was to Monday, 4 November, when the trial resumed.) Senior counsel repeated his complaint that the report had not been served and had been obtained illegally, that is, without proper authority and that if the MRI report was admitted into evidence, it would be necessary to recall Dr Ghabrial.

24 The following exchanges then occurred between her Honour and senior counsel for the appellant:

“[COUNSEL]: … the whole case has got to go over again. That was the whole thing – I mean, I didn’t say, ‘Oh, we’d better get hold of, find out about the MRI’ because this case has got to be completed with respect, your Honour. I mean, one can’t be critical, I suppose, of [the appellant] for going to some doctor and that doctor sending --

HER HONOUR: Well, one can be very critical of [the appellant] … One indeed can be very critical because he has a doctor here in the court on Tuesday saying, ‘If I had an MRI I could tell you, I would have a confirmation of my diagnosis.’ Now [the appellant] knows he’s had an MRI.

[COUNSEL]: Well, there’s no suggestion --

HER HONOUR: You can’t have an MRI without knowing it.

[COUNSEL]: There’s no suggestion he knows what the result was and, as I understand on his instructions, arrangements had been made for him to attend upon Dr Schwartzer in December to discuss the results of the MRI, so he’s not to know whether or not the MRI is positive, negative, or what the significance of it otherwise might be in the sense of the forensic battle that’s going on in this case in relation to that issue.

HER HONOUR: But this is critical to this case … It’s entirely critical. He’s carrying his left arm across his body claiming to be disabled as far as his left arm is concerned because he has a frozen left shoulder.

[COUNSEL]: Well, my friend has put that proposition, a frozen left shoulder.

HER HONOUR: Well, he asked Dr Ghabrial if that was the same as his diagnosis of capsulitis of whatever muscle he was talking about.

[COUNSEL]: Your Honour, this scanning only relates to his neck and his back, it doesn’t relate to his shoulder so that’s got nothing to do with it.

HER HONOUR: I don’t know, I haven’t seen it.

[COUNSEL]: I’m telling your Honour it’s an MRI of his lower back and his neck, not of his left shoulder or left limb or anything like that.

HER HONOUR: Well, I don’t know how I can leave it out because it is critical. I don’t know how I can ignore it now that I know about it. If it means that the case has to go over, well so be it, the case has to go over but I don’t see now that I know about it and now that I know that it is critical to the outcome of this case, I can ignore it.

[COUNSEL]: Well, then the question arises, your Honour, if it does go in we would have to seek your Honour’s leave to send it to Dr Ghabrial and to recall him.

HER HONOUR: Yes.”

25 There was then a discussion as to how the evidence of Dr Maguire, who was about to be called in the respondent’s case, ought to proceed and in particular, whether he should be cross-examined in relation to the result of the MRI scan before Dr Ghabrial had been recalled. Counsel for the respondent then further explained how the respondent had obtained the MRI report:

“… this document came into our hands yesterday afternoon [Tuesday, 5 November]. I want to tender it now because one of the things I want to put to Dr Maguire is an assumption that there is no pathology whatsoever in this man’s neck and whether or not that has an impact on his opinion. That’s why I tender it before I call Dr Maguire. Now, if that’s going to cause some difficulty, it’s not, with great respect, your Honour, [the respondent’s] problem, it’s not [the respondent’s] fault and it still, in my submission, is inexplicable as to how this material has not been forthcoming in [the appellant’s] case and my submission would be the case should conclude with that matter left unestablished by [the appellant] in all of the circumstances.

Your Honour will recall the source of this information is a document that came from [the appellant’s] to my instructing solicitors being a printout of the workers’ compensation documents. That was in [the appellant’s] solicitor’s hands before it came to us late on Tuesday and the only way that we had of knowing about this very critical and important piece of information, which incidentally – and your Honour will have gathered by now – supports [the respondent’s] case – well, perhaps your Honour should see the document at this point in time.”

26 Dr Maguire then gave evidence. At the conclusion of Dr Maguire’s evidence, senior counsel for the appellant asked for an adjournment so that the appellant’s legal representatives could consult Dr Ghabrial. The trial judge asked whether that could be done if she took a long luncheon adjournment. Senior counsel said that he wanted to get the MRI plates (which, it appeared, were still with the radiologist) to Dr Ghabrial. The following further exchange occurred:

“HER HONOUR: But why now …? Why now?

[COUNSEL]: I’ve explained the reasons why. I can only do what I can do. I didn’t have a report.

HER HONOUR: Don’t I need some explanation from – I accept that you’ve only just seen it.

[COUNSEL]: Monday, yeah, Monday.

HER HONOUR: Don’t I need some explanation from [the appellant] as to why you were not told about it and why you now need to take yet another adjournment in this case?

[COUNSEL]: He goes off. He’s out being treated. The case has been listed again for hearing. I say to the solicitors, ‘Get him to come in and we can just see how he’s going,’ and he just hasn’t done that.”

(The statement “ he goes off ” was a reference to the period of the adjournment in the proceedings from August to November, during which time the appellant saw another doctor, Dr Schwartzer, who referred him for an MRI.)

27 The respondent opposed the adjournment application. He pointed out that the appellant had known for two months that he had had an MRI and Dr Ghabrial had given his evidence on the basis that no MRI had been performed. The respondent’s counsel submitted that her Honour “would have to draw the inference that there had been a lack of frankness about a piece of evidence”. He submitted that the MRI supported the respondent’s case and that her Honour could draw an inference from that. He reiterated that it was the appellant’s fault the MRI report was not before the Court.

28 Senior counsel for the appellant responded:

“We didn’t know what was in the MRI scan. We were told on Monday. [The appellant] has been in a depressive state on a lot of the evidence. I’ll call him if your Honour wishes me to call him as to what his appreciation of the significance of it was. He doesn’t even know what the results of it are. He’s going to discuss the results of it in December. So how would he know whether it was important or not important? It becomes important because [the respondent] is able to get hold of it somehow or other from his doctors and then wants to tender it at the eleventh hour of the proceedings after Dr Ghabrial unfortunately has been and gone. If we’d have had the report we would’ve obviously dealt with it, but we didn’t have the report and that would work a grave injustice. It’s just one of those unfortunate things that happen that there had not been the necessary communication. You wouldn’t be expecting that [the appellant] would be necessarily racing off to us and saying, ‘The doctor is sending me off for an MRI scan.’ What would he know? The doctor just sent him off. He hasn’t got the report. He hasn’t even discussed the significance of it.”

29 Her Honour informed the appellant’s senior counsel that she was allowing the lunch hour for the appellants legal representatives to communicate with Dr Ghabrial to see whether or not he wished to add anything to the evidence he had already given. Senior counsel for the appellant indicated that he would want to ask Dr Ghabrial some questions about the lumbar spine in respect of which the MRI had indicated positive findings. Her Honour indicated that if the appellant wished to recall Dr Ghabrial, it would have to be done quickly. An adjournment was then granted to allow the legal representatives on both sides to arrange for further medical evidence dealing with the results of the MRI scan.

30 The matter resumed on 1 December, when further medical reports were tendered and the parties made final submissions. Shortly prior to the commencement of the oral submissions, counsel for each party exchanged their written submissions, which were then handed up to the trial judge. The respondent’s submissions included the following:

“31. A major matter is the unexplained failure of [the appellant] to tender the results of the MRI on 29.9.09. [The appellant] knew he had undergone this investigation and it should be inferred that he knew the result ie that there is NO PATHOLOGY in his neck, and degenerative changes only in his lower back. NO evidence was called about this important development. No doctor was qualified with the information that has been known to [the appellant] (and his solicitors) for some time. [The appellant] sat by and let Prof Ghabrial speculate on his spinal pathology with knowledge that the MRI would disprove his theories. This was not only dishonest but could be construed as misleading the Court.

32. Evidence was lead from Prof Ghabrial … as to what he meant when he quite wrongly speculated that there was a ‘high possibility’ that [the appellant] had a disc prolapse in his cervical spine. It was expressly agreed by Professor Ghabrial that it was not possible to be 100% certain of the diagnosis without an MRI. These questions were put with knowledge that an MRI of the cervical spine had been conducted 5 week previously.

33. What also emerged from the discovery of the MRI was the fact that [the appellant] had been seeing Dr Schwartzer. No evidence was given by [the appellant] as to this treatment or its duration. No evidence was called from Dr Schwartzer. An inference should be drawn that evidence of the treating specialist Dr Schwartzer, who [the appellant] kept secret from the Court, would not have helped his case.”

31 Senior counsel for the appellant informed this Court that he had made oral submissions in response to this aspect of the respondent’s submissions. Counsel for the respondent did not dispute this.

32 In this Court, senior counsel for the appellant was particularly critical of these paragraphs of the respondent’s submissions. He said that it was irresponsible for the respondent to submit that the appellant had tried to conceal the existence of Dr Schwartzer. He referred the Court to the appellant’s cross-examination, where the appellant had made specific reference to his seeing Dr Schwartzer.

33 Senior counsel said that he pointed out to her Honour that the respondent’s submission was wrong. He said that her Honour “appeared … to have accepted this submission”. Notwithstanding this, her Honour made, at [36], an adverse credit finding in respect of the appellant’s evidence to the court and that contained in an affidavit in Family Court proceedings relating to the custody of his children. Her Honour concluded, at [37], that the appellant “was not a witness whose evidence could be relied upon unless independently and objectively supported”,

34 Senior counsel for the appellant submitted that her Honour did not give him any indication that she would be accepting the respondent’s wrong submission so as to necessitate him recalling the appellant. He then submitted that, having heard and accepted this wrong submission, her Honour should have offered him the opportunity to recall the appellant if she was intending to act upon it. In accepting the respondent’s submission in the absence of any evidence from the appellant on this point, senior counsel for the appellant contended that her Honour “went far too far”.

The trial judge’s reasons

35 The trial judge, at [2] of her judgment, identified the issues involved in the matter before her as follows:

“1 [The appellant’s] credit.
2 Whether the accident was caused by [the respondent’s negligence.
3 Whether there was negligence on the part of [the appellant] that contributed to the cause of the accident.
4 The extent of [the appellant’s] injuries and disabilities resulting from the accident.
5 The damages, if any, to be awarded in respect of those injuries.”

36 Her Honour dealt with the credit issue by a consideration of three aspects of the evidence: the surveillance material; an affidavit the appellant had sworn in Family Court proceedings; and the MRI.

37 Insofar as the MRI was concerned, her Honour made the following findings:

“[30] The MRI: Dr Ghabrial examined [the appellant] in October 2003 and August 2006. He diagnosed a number of injuries affecting [the appellant’s] cervical spine, left shoulder and lumbar spine. He suggested that [the appellant] suffered from prolapsed cervical and lumbar discs. Dr Ghabrial expressed confidence, based on his experience, that these suggested prolapses existed although x-rays and CT scans did not show them. He discounted the value of CT scans and stated that an MRI scan would certainly confirm his confident diagnoses.

[31] [The appellant] was present in court when Dr Ghabrial made reference to the value of an MRI. He did not inform the court that an MRI scan was undertaken on 29 September 2008 when he consulted Dr Schwarzer, a specialist in musculo-skeletal injuries.

[32] The report of the MRI was located by [the respondent] in subpoenaed materials. It did not report disc prolapses. It stated that the study of [the appellant’s] cervical spine was normal and that there was disc degeneration at L5/S1 without neural compromise or other abnormality.

[33] For [the appellant] it was argued that there was no evidence that [the appellant] knew of the result of the MRI or of its significance at the time that Dr Ghabrial gave evidence. However, he was not recalled to give this evidence. In my view he must have known that an MRI scan was undertaken. I was left without an explanation for his failure to bring this to the attention of his counsel or the court .” (emphasis added)

38 The appellant made a number of complaints about the accuracy of her Honour’s findings in these paragraphs. However, the essential question raised by the appellant was whether it was open to her Honour to make an adverse credit finding when the appellant had not been cross-examined about the subject matter of the finding. The principle that governs in these circumstances is the requirement of a fair trial: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141.

39 In Stead the High Court reaffirmed, as a basal proposition, the requirement of a fair trial. At 145, the Court endorsed the following statement of the English Court of Appeal in Jones v National Coal Board [1957] 2 QB 55 at 67:

“There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge … No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”

40 The Court noted, however, that the general principle is subject to an important qualification: namely, that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge. The Court then stated that it was for this reason that not every departure from the rules of natural justice at trial will entitle the aggrieved party to a new trial. The Court continued, at [12] 146:

“At the trial the critical question on the issue of causation was whether Dr Scanlon's testimony should have been accepted in preference to the appellant's expert witnesses, notably Dr Donsworth. It was an issue pre-eminently suitable for determination by the primary judge who had an advantage over the Full Court in seeing and assessing the witnesses. We do not see how the Full Court, denied the important advantage of seeing and assessing the witnesses, could satisfactorily conclude that had the appellant's counsel been given a reasonable opportunity to present submissions on the issue, it could have made no possible difference to the result.”

See also Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353.

41 The respondent submitted that her Honour was entitled to proceed as she did and that she had applied orthodox judicial methodology in rejecting the appellant’s claim, namely, she had not been satisfied that the appellant, as plaintiff, had discharged the burden of proof on him to establish his claim: see Rhesa Shipping Co SA v Edmunds (The 'Popi M') [1985] 1 WLR 948 at 951 and 955.

42 In this regard, the respondent submitted that the appellant was clearly on notice of her Honour’s concern as to the appellant’s failure to inform the Court that he had undergone an MRI. He relied in particular upon the exchanges between her Honour and senior counsel for the appellant which are set out above at [24]. Counsel for the respondent submitted that considering what had happened, and given her Honour’s concern, it was incumbent upon the appellant’s counsel to recall the appellant to explain why he had not given evidence that he had undergone an MRI.

43 There are two problems with this submission. The first flows from the manner in which the matter played out in Court. There is no doubt that when the matter first arose, her Honour was concerned with the conduct of the appellant in not having brought to the attention of the Court the fact that he had undergone an MRI scan. This is apparent from her Honour’s comment, “[the appellant] must have known [that] he had an MRI scan” and her further comment to the effect that one could be very critical of the appellant in allowing Dr Ghabrial to give evidence that he would expect an MRI to confirm his clinical diagnosis, when in fact the reverse was the case when the MRI report was produced. Her Honour reiterated at that point that “[the appellant] knows he’s had an MRI”.

44 Senior counsel for the appellant then explained that the appellant did not know the result of the MRI and he was not due to see Dr Schwartzer, who had referred him for the MRI, until December. Immediately after that explanation, her Honour, without further indication that she retained her concern as to the appellant’s “role” in the MRI not being before the Court, stated that she proposed to give the appellant’s legal representatives an opportunity to communicate with Dr Ghabrial.

45 Senior counsel for the appellant should have recalled the appellant to explain the position as to the MRI. However, having stated his client’s position from the bar table and her Honour having then indicated she was providing the appellant’s legal representatives with an opportunity to contact Dr Ghabrial, it appears that senior counsel believed that her Honour’s concern as to the appellant’s conduct had dissipated, but that she remained concerned to hear from Dr Ghabrial and whomever the respondent wanted to call on the medical question, namely, what the MRI demonstrated in respect of the appellant’s physical injuries. This misunderstanding as to the position may indicate poor forensic judgment by senior counsel at that point. Clearly, senior counsel was put under pressure by this turn of events and was embarrassed.

46 Counsel for the respondent also had some responsibility for what happened. If he intended to challenge the appellant’s credit on the basis that he had not revealed that he had had an MRI, counsel was obliged, as a matter of fairness, to cross-examine the appellant on that issue. It is not to the point that the appellant’s counsel had not recalled the appellant to explain the position. Although parties are entitled to take tactical advantage of matters that occur during the course of litigation, that entitlement has limitations. One limitation is if to do so results in unfairness to a party to the proceedings.

47 Her Honour’s reliance on the MRI material in respect of credit was significant. She said, at [33], that the appellant “must have known that an MRI scan was undertaken”. However, senior counsel had made that express concession before her Honour. Her Honour stated that she was left without an explanation for the failure “to bring this to the attention of his counsel or the court”. That statement was not correct. Senior counsel had provided an explanation and her Honour had not indicated that she did not accept that explanation. The adverse credit finding based upon the MRI material was not, in the nature of a makeweight. As her Honour had stressed during the course of the discussion about the MRI, the MRI findings were critical to the assessment of the appellant’s case on damages. I am satisfied that the appellant was denied procedural fairness in the manner which the adverse credit finding was made.

48 However, as already stated, the court will not intervene if the unfairness could not possibly have made a difference to the outcome of the case: see Stead at 146. See also the Uniform Civil Procedure Rules 2005 (the UCPR), r 51.53 which provides that a new trial will not be ordered unless there has been some substantial wrong or miscarriage of justice.

49 The adverse credit finding made in respect of the MRI was one of three bases upon which her Honour rejected the appellant’s credit. For reasons which I give below, I do not consider that either of the other two bases were sufficient to enable this Court to conclude that the unfairness in making the MRI finding would not have made a difference in her Honour’s assessment of the appellant’s credit. The other two bases were her Honour’s findings in respect of the surveillance material and the family law affidavit.

50 Surveillance evidence is usually directed to credit issues relating to the extent of a plaintiff's disabilities. However, a trial judge is entitled to take into account in respect of credit generally discrepancies revealed in surveillance material, as compared to the plaintiff’s evidence. I see no error in her Honour's approach in this case. She was entitled to assess what she observed on the video, as compared to the history the appellant gave to doctors, the manner in which he presented to them and his evidence in Court. The Court did not view the surveillance material. It was apparent, both from the appellant’s evidence and her Honour’s reasons, that there were discrepancies in his presentation on video and his claimed level of disability. However, the surveillance evidence was not destructive of the appellant’s credit. Her Honour did not accept the respondent's submission that the appellant did not have the disabilities he alleged. Rather, her Honour found that the appellant was exaggerating his physical disabilities.

51 The matter of the family law affidavit is more problematic. The appellant’s complaint was that her Honour had quoted only portion of a critical statement in the affidavit and used that portion to make an adverse credit finding. Her Honour’s finding was as follows:

“[26] [The appellant] stated in the affidavit that he used cannabis primarily for medicinal purposes to deal with pain and discomfort from the injuries suffered in the accident and that his use of the drug had recently substantially decreased. He referred to his attempted suicide in 2003 and stated that the anti-depressant medication he took following that event ceased 12 months prior to the date of the affidavit. He stated: I am today in a fit and well state of mind …

[27] This material was entirely inconsistent with [the appellant’s] claims concerning his psychiatric condition.”

52 The complete statement in the family law affidavit was:

“I am today in a fit and well state of mind and have not had any further suicidal thoughts since the unfortunate circumstances which occurred.”

This statement was made after the appellant had explained in the affidavit the circumstances surrounding his attempted suicide in June 2003.

53 The appellant contended that her Honour's finding at [27] related only to the partially quoted portion at [26]. The respondent argued that her Honour was referring to the entirety of the appellant's evidence in respect of his psychiatric condition which she referred to in the succeeding paragraphs, including, at [28], statements such as “he spent his time in a darkened room with his dog” and that “he was constantly depressed”. Although minds might differ on this matter, I have come to the conclusion that there is merit in the appellant’s complaint. The statement made in the affidavit was specifically directed to the matters relating to the attempted suicide and I consider that it was at least possible that her Honour may not have understood the statement in that context.

54 Had her Honour’s finding in respect of the affidavit been the only matter of complaint, I doubt whether it would have been sufficient for there to be appellate intervention. However, her Honour rejected the appellant’s claim on liability because, having regard to her findings on credit, she was not persuaded to prefer the appellant’s evidence to that of the respondent. The possible inaccuracy in the use of the affidavit statement does not detract, and if anything reinforces, the likelihood that the unfairness arising out of the adverse credit finding relating to the MRI may have affected the outcome of the trial.

55 For these reasons, I consider the appeal should be allowed. This conclusion makes it unnecessary to deal with the other issues referred to at [10] and [12] above. However, I should say something about costs. The trial judge made a order on the final day of the hearing that the appellant was to pay the respondent’s costs of the day for 5 November 2008 (the lost day) as well as the costs of the adjournment; the trial being adjourned until 1 December 2008. Those orders were then encompassed in her Honour’s order that the appellant pay the respondent’s costs. Notwithstanding the orders I propose below, I would not seek to disturb that order, insofar as it relates to costs on 5 November and 1 December 2008. The costs order in respect of 5 November was not related to any of the matters raised on the appeal. The costs order in respect of the adjournment ought not be disturbed. The need for the adjournment arose out of the appellant’s case relating to the MRI and there is no basis to interfere with her Honour’s discretionary decision.

56 The orders I propose are:

1. Appeal allowed;

2. Set aside the verdict and judgment for the respondent made in the Court below;

3. Order that the matter be remitted to the District Court for rehearing;

4. Save for the costs of 5 November and 1 December 2008, order that the costs of the first hearing at first instance abide the outcome of the new trial. The appellant is to pay the respondent’s costs of 5 November and 1 December 2008;

5. Order that the respondent pay the appellant’s costs of the appeal;

6. Order, pursuant to the Civil Procedure Act 2005, s 26, that prior to the matter being remitted, the proceedings are referred to mediation.

57 YOUNG JA: At about 7.45am on 7 April 2003, the appellant was driving to work in a northerly direction in Silsoe Street Mayfield. He was approaching Maitland Road which he was intending to cross to proceed on to Carrington Street which is slightly skewed to the left across the intersection on the north side of Maitland Road. The intersection is controlled by traffic control lights.

58 The respondent had proceeded from Fawcett Street about 60 metres west of the intersection of Maitland Road and Silsoe Street. He had a passenger, a Mr Lewis. He gave evidence that he moved left out of Fawcett Street into Maitland Road and proceeded east towards the intersection of Silsoe Street.

59 The respondent says that he was in the left hand lane of Maitland Road, and that there was a blue van in that lane ahead of him. The traffic lights were red as he approached the intersection. The respondent changed lanes into the right hand lane about 20 metres short of the intersection. At that point the respondent says that the lights in his favour changed to green. He increased his speed and went into the intersection at about 45 kilometres per hour. The respondent was driving a 4 cylinder 4 wheel drive builder’s utility that was carrying tools, equipment and materials.

60 The appellant says that the lights were green as he approached the intersection. He says he was travelling at about 50 kilometres per hour as he approached the intersection. As he entered it, the lights changed to amber. He was part way into the intersection when the respondent’s vehicle drove in front of him. He applied his brakes, but was unable to stop.

61 Although the police attended the scene of the collision, there was no police report as to the actual point of impact in evidence. However, the evidence showed that the front of the appellant’s vehicle hit the driver’s door of the respondent’s vehicle.

62 Photographs of the intersection show that it was very difficult for either driver to have had full vision of traffic moving either east in Maitland Road or north in Silsoe Street.

63 There were two vehicles stopped at the lights in Maitland Road travelling west. The appellant says that as he did not collide with either of those vehicles which would have crossed his path before the respondent did, the lights must have been red in Maitland Road as he entered it. However, this is not necessarily the case as both vehicles may well have started off very slowly, and they had to cross over half the width of Silsoe Street become coming in contact with the appellant. Again, the vision of the drivers of those vehicles was much superior and they may have seen the appellant coming and stopped.

64 After the accident, the drivers moved to a footpath. The appellant says he said to the respondent: “That’s a good start to the morning.” The respondent asked if the lights were red and the appellants says he said “Yeah mate. You went through a red light” to which the respondent merely said “Oh” and walked away.

65 Later the appellant says that he heard the respondent say to his passenger Mr Lewis: “When the police come we’ll tell them that we had the green. There’s two of us. There’s only one of them. No witnesses stopped.” The appellant says that this is an admission against interest.

66 The respondent says that the collision had made his tools fall onto the road. When picking them up he went over to the appellant and spoke to him, but got no reply. He said “Mine was not red”. The appellant did not reply. Later, however, the appellant came over and said something about the light being yellow and that he was running late for work.

67 Her Honour, the primary judge, found a verdict for the defendant for reasons I will outline later. It is remarkable that this case took 11 hearing days over 8 months even though, on the question of liability, it involved a simple question as to which driver had entered the intersection in contravention of the traffic control lights. However, to be fair, there was a considerable amount of evidence going to medical issues and the quantum of damages.

68 On the appeal, Mr D Kennedy SC and Mr G Smith appeared for the appellant and Mr S Campbell SC and Mr P Cummings appeared for the respondent. Mr Kennedy said the grounds of appeal could be summarised in four points, viz:

(1) Her Honour failed to have regard to all the evidence.

(2) Her Honour failed to address clear credit issues.

(3) Her Honour failed to resolve credit issues.

(4) Her Honour failed to give effect to an admission against interest of the respondent.

69 I can dispose of the first and the fourth grounds fairly shortly. The first matter relied on by Mr Kennedy is the fact that the westbound traffic was not involved in the collision. I have already considered this and discarded it as being of any significance. Secondly, that the blue van was not involved in the collision, yet it must have been very close to the respondent’s vehicle which was pushed north by the collision. This is merely speculative. There was plenty of room for this vehicle to move towards Carrington Street and it may have stopped as it was evidently only moving off very slowly.

70 The next point was that the respondent gave three slightly different versions of the event and Mr Lewis’ evidence did not quite tally with that of the respondent. However, the discrepancies were slight and the sort of discrepancies that are not at all uncommon when people are recalling a past event.

71 The strongest point was as to the alleged admission to be found in the conversation between the respondent and Mr Lewis which I have set out above. The primary judge merely said: “There was no challenge to this part of the plaintiff’s evidence and no evidence to counter it was taken from the defendant or Mr Lewis.” She left it at that.

72 It is true that there was no cross-examination on this statement. There was no evidence given by the respondent to deny that he had said it and there was no need for appellant’s counsel to ask the respondent about it; indeed, it would have been foolish for him to have done so. The appellant therefore says that this was a vital admission which the primary judge had not evaluated.

73 The literal meaning of the alleged admission could give the impression that all the respondent was saying was that it was important to tell the police that the lights were green because they were green. Mr Kennedy says that that construction is not consistent with “There’s two of us” and the only inference is that “We’ll tell them the light was green even though it was in fact red.”

74 I do not consider that what Mr Kennedy puts necessarily follows. It seems to me that the alleged admission could be read in either way. It is hardly in the category of incontrovertible evidence.

75 One can speculate on this evidence. Why would a conspirator say these words to a co-conspirator in the presence of the appellant? Was the admission mentioned by the appellant to the police who came to the scene? This is just unknown as there is no evidence as to what the drivers or Mr Lewis said to those police.

76 It may be that there would have been a better judgment if the primary judge had given a few more details of her reasoning. However, her Honour did consider the evidence generally as including the alleged admission. Mr Kennedy’s real complaint is that her Honour did not appreciate the significance of the statement in the total picture.

77 It does not seem to me, however, that, particularly in view of its equivocal nature and the little emphasis placed on it at the trial, that it is a significant factor as to why this Court should allow the appeal.

78 The basal reason for the primary judge finding against the appellant was that she did not accept his evidence. Her Honour said at [3] and [4]:

[3] The defendant put the plaintiff’s credit firmly in issue by alleging serious and fundamental dishonesty in his evidence to the court, doctors and other health care advisors; his apparent disinclination to return to work, inconsistencies between his evidence to this court and that presented to the Family Court; and inconsistencies in his evidence that were designed to indicate that his current heavy use of cannabis was a consequence of the accident.
[4] This alleged lack of credit was directed at both the issue of liability and the extent to which the plaintiff was genuinely injured or disabled as a result of the accident. …

79 The most significant issues in the primary judge’s assessment of the appellant’s credit were summarised under three headings, viz:

(a) the surveillance material;

(b) the Family Court material; and

(c) the MRI.

80 The surveillance material did show inconsistencies with the claims that the plaintiff made to the doctors and the way in which the plaintiff walked and treated his arm in the presence of doctors.

81 The Family Court material is a reference to an affidavit sworn by the appellant on 6 June 2005 in the Family Court in proceedings involving the custody of his children.

82 The primary judge said at [27] that the material in the affidavit, by which she seemed to mean paragraphs 50 to 54, was entirely inconsistent with the appellant’s claims concerning his psychiatric condition. Unfortunately it is quite possible that her Honour misinterpreted the affidavit. However, whether this be the case or not, there was sufficient there to throw doubt on some of the appellant’s evidence as to his psychiatric condition.

83 The third matter is the more worrying one, and one which Beazley JA considers is sufficient to warrant a new trial. With respect, I would disagree.

84 The tale concerning the MRI is quite extraordinary. Dr Ghabrial had examined the appellant in October 2003 and August 2006. He made a diagnosis but stated that an MRI scan would certainly confirm his confident diagnosis.

85 The plaintiff was present in court when Dr Ghabrial made reference to the value of an MRI. He did not inform the court that an MRI scan was in fact undertaken on 29 September 2008.

86 It would seem that independently of the activities of his lawyers, the appellant had consulted a Dr Schwartzer who had referred him for an MRI scan. Material which had been supplied to the respondent’s solicitors gave them enough information for them to find out that such an MRI scan had been taken.

87 To digress a little, the case had commenced on 26 May 2008, it was then adjourned and heard between 25 and 27 August 2008, and then adjourned to 3 November 2008, all of the action being in Newcastle.

88 The appellant had commenced giving his evidence on 26 May and cross-examination commenced that day and continued through to 25 August.

89 He was recalled for further short cross-examination on 3 November.

90 On 3 November, senior counsel for the appellant was told about the MRI scan.

91 On Tuesday 4 November, Dr Ghabrial gave evidence. He said at Black 344:

“We tend to not establish a definitive diagnosis until we are supported by an MRI scan … until I have an MRI scan I wouldn’t put it as a definitive, hence we say highly possible, well in legal terms, which you prefer, the word probable, than possible, than highly possible.”

Senior counsel for the plaintiff then asked the doctor:

“You need the MRI scan to be absolutely 100% certain?”

to which the doctor replied:

“Yeah suggested that in my first report.”

92 At that stage counsel knew that there was an MRI scan though he did not know the result. It would seem that counsel for the respondent did not know about the MRI scan until after Dr Ghabrial had given his evidence.

93 On the tenth day of the trial, Thursday 6 November 2008, at Black 360, counsel for the respondent said:

“I have a tender of the report from Hunter Imaging Group in respect of MRI examinations of Mr Singler carried out on his cervical and lumbar spine on 29 September 2008.”

94 Senior counsel for the appellant said:

“I’ve never seen the document before your Honour; it’s not been served on us and we would object to it. I don’t know how it’s come to be in the possession of the defendant.”

Respondent’s counsel replied:

“I’m happy to tell your Honour how it came to be in the possession of the defendant. On Tuesday afternoon the plaintiff’s lawyers gave to my instructing solicitor a volume of material, being a printout of the payments made by the worker’s compensation insurer. When my instructing solicitor went through the documentation yesterday on the last page it refers to a magnetic resonance study that was carried out on the date that I’ve indicated, in September 2008. That was the first time … the defendant became aware of an MRI study. Your Honour will recall evidence of Professor Ghabrial that there had been no MRI study and that he was diagnosing all sorts of problems with the plaintiff’s spine based upon clinical examination only and said that he would defer to MRI examination.”

95 Her Honour asked: “You say it’s a document that was in the plaintiff’s hands?” Counsel for Mr Singler said “No” and counsel for the respondent said “I have no idea”. Her Honour said: “Well the plaintiff must have known he had an MRI scan”. Plaintiff’s counsel then said: “Well the plaintiff may well have known he had an MRI scan but we--“. Her Honour interrupted and said “Do you want to take some instructions on it” and counsel said “Yes”.

96 After a short adjournment plaintiff’s counsel said:

“I was never briefed with this report, my junior was never briefed with it. I must say this, your Honour, he did mention on Monday morning that he had had an MRI scan. I took the view this case was so far down the track, I didn’t have a report, how are you going to get one, so we just went on with the case.”

97 At Black 362 appellant’s counsel said:

“If it is admitted into evidence then we’ve got to go back to Dr Ghabrial again, show it to him--“

Her Honour interrupted: “We do, we do” and counsel then continued:

“Exactly, so the whole case has got to go over again. That was the whole thing – I mean, I didn’t say ‘Oh, we’d better get hold of, find out about the MRI’ because this case has got to be completed with respect, your Honour. I mean, one can’t be critical, I suppose, of the plaintiff for going to some doctor and that doctor sending--“

Her Honour interrupted again:

“Well, one can be very critical of the plaintiff … One indeed can be very critical because he has a doctor here in the court on Tuesday saying, ‘If I had an MRI I could tell you, I would have a confirmation of my diagnosis.’ Now the plaintiff knows he’s had an MRI.”

Counsel said:

“Well, there’s no suggestion-- “

Her Honour interrupted:

“You can’t have an MRI without knowing it.”

Counsel said:

“There’s no suggestion he knows what the result was … so he’s not to know whether or not the MRI is positive, negative, or what the significance of it otherwise might be in the sense of the forensic battle that’s going on in this case in relation to that issue.”

Her Honour: “But this is critical to this case… It’s entirely critical.”

98 There was then a discussion as to whether the MRI affected the shoulder or only the lower back and neck to which her Honour replied: “Well, I don’t know how I can leave it out because it is critical. I don’t know how I can ignore it now that I know about it. If it means that the case has to go over, well so be it, the case has to go over but I don’t see now that I know about it and now that I know that it is critical to the outcome of this case, I can ignore it.”

99 The Hunter Imaging report was then admitted into evidence and then another doctor who had been scheduled to give evidence on that day gave his evidence. When he had retired, counsel for the appellant made an application for an adjournment to consult with Dr Ghabrial. At Black 401 her Honour said:

“Don’t I need some explanation from – I accept that you’ve only just seen it.”
Counsel: “Monday, yeah, Monday.”
Her Honour: “Don’t I need some explanation from the plaintiff as to why you were not told about it and why you now need to take yet another adjournment in this case?”

100 After some discussion counsel replied: “That had been supplied to Mr Shipp [the appellant’s solicitor] on Monday” and that “There might be fault on the part of Mr Singler by not telling us beforehand, but the fact is it hasn’t happened. He’s the litigant. He’s not running the case. He doesn’t presumably understand the forensic significance of these things…As your Honour has said, these are significant issues before your Honour. There will be no prejudice. The matter can hopefully be dealt with quickly and hopefully, if there is court time, the matter can come back and be completed. But it would work a real unfairness to the plaintiff to just have that report in and we’re stuck with it here at the eleventh hour of these proceedings.”

101 Counsel for the respondent submitted that no adjournment should be granted. He said, inter alia, at Black 402:

“It does not come well from the plaintiff’s counsel to say to press the matter on now would be an unfairness to the plaintiff. If that’s an unfairness to the plaintiff, it’s an unfairness of his own making. He hasn’t been – your Honour would have to draw the inference that there has been a lack of frankness about a piece of evidence. It is a piece of evidence that I would be submitting highly favours the defendant’s position, and that’s not an insignificant matter in this case and your Honour could draw an inference from that. The difficulty is it’s not just a matter of Professor Ghabrial having a look at it now and seeing what he thinks. The defendant would want at least the opportunity to engage orthopaedic surgeons, maybe radiologists, to respond to whatever it is Dr Ghabrial says.”

102 Counsel for the plaintiff then said:

“We didn’t know what was in the MRI scan. We were told on Monday. The plaintiff has been in a depressive state on a lot of the evidence. I’ll call him if your Honour wishes me to call him as to what his appreciation of the significance of it was. He doesn’t even know what the results of it are.”

103 Her Honour then indicated that she was going to allow the plaintiff’s counsel in the luncheon adjournment to see what he could do. Unfortunately, Dr Ghabrial was operating. The matter was then stood over to 1 December 2008.

104 On that date, a bundle of medical reports was tendered including a further report from Professor Ghabrial. No further oral evidence was given. Counsel addressed and judgment was reserved.

105 The appellant complained of findings by her Honour of which the following are the prime instances:

(a) “[33] For the plaintiff it was argued that there was no evidence that the plaintiff knew of the result of the MRI or of its significance at the time that Dr Ghabrial gave evidence. However, he was not recalled to give this evidence. In my view he must have known that an MRI scan was undertaken. I was left without an explanation for his failure to bring this to the attention of his counsel or the court.”

(b) “[36] In the absence of evidence from the plaintiff, I was not satisfied that he was unaware of the result of the MRI scan. I find that he attempted to conceal that result because it did not support his claims of spinal injuries.”

106 As to (a), it is put by the appellant that the fact of the MRI was indeed given to his counsel on the Monday in November before Dr Ghabrial gave evidence. As to the second, it is said that there was no evidence before the court that Mr Singler was aware of results, it could not be inferred merely from the absence of evidence from the plaintiff in November 2008 and there is no basis for finding that he attempted to conceal the result. It is put that that suggestion came from the respondent’s submissions that “the appellant knew he had undergone this investigation and it should be inferred that he knew the result … The appellant sat by and let Professor Ghabrial speculate his final pathology with the knowledge that the MRI would disprove his theories. This was not only dishonest but could be construed as misleading the court.”

107 In Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353, Basten JA, with whom I agreed, said at [28]:

“The criminal cases addressing the question whether there has been a substantial miscarriage of justice distinguished between:
(a) procedural unfairness which can be shown to have led to an unjust conviction;
(b) unfairness which precludes an assessment of the justice of the outcome, or
(c) a departure from an essential requirement of a trial which itself involves a substantial miscarriage of justice without the need to consider the possible effects of the outcome. …”

108 His Honour then continued at [29]:

“In civil proceedings it is also helpful to consider the nature of the error asserted by reference to the categories identified above.”

109 Earlier on in the judgment his Honour had noted that it was unfortunate that there appeared to be cross fertilisation in the authorities between cases decided by decision makers in administrative matters, and judicial decision makers because the situations were not the same.

110 The cases show a number of situations where there has been procedural unfairness which warranted a new trial. Of course, there are also a number of other authorities which make it clear that a new trial is a matter of almost last resort. The Uniform Civil Procedure Rules 2005 (Part 51.53) make it quite clear that a new trial is only to be ordered in cases where it appears to the court that some substantial wrong or miscarriage has been occasioned. A new trial, unless it is really justified defeats the philosophy of the court procedure that cases must be finally dealt with as soon as possible apart from the extra stress on the parties and the forensic disadvantages it causes. Nonetheless, if the situation is sufficiently serious, a new trial must be ordered.

111 Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141, was a case when counsel was addressing the court as to why the court should not accept a Dr Scanlon’s evidence was interrupted by the trial judge who said: “Alright I don’t accept Dr Scanlon on that. You needn’t go on as to that” whereupon counsel passed to another topic. In his reserved judgment the judge in fact accepted Dr Scanlon and the High Court held that there had been a denial of natural justice and that the possibility of a different result had not been negated; accordingly, there must be a new trial.

112 In Chaina, Basten JA classified Stead in his second category and said at [29]:

“To come within Stead, an appellant must first demonstrate procedural ruling capable of preventing a trial according to law. Not every refusal of an adjournment, limitation on cross examination or refusal to allow a plaintiff to reopen which is adverse to one party’s interest will be so characterised.”

113 It is to be noted that in the instant case there is no procedural ruling being called in question. What is put is that it was never put to the appellant in cross-examination that he had concealed the result of his MRI to the court because it did not support his claims for spinal injuries, yet that was a key plank in her Honour’s determination.

114 In my view there is a great danger in breaking down the general principle that a person must have a fair trial to a series of discrete rules and then seeking to apply those rules according to their literal meaning.

115 Although a person must be appraised of the case which he or she is to meet, in my view there is no rule which says that that always happened by a question being put to the person involved in cross-examination.

116 Gaudron J said in Re Association of Architects of Australia; Ex parte Municipal Officers of Australia (1989) 63 ALJR 298, 305:

“Procedural fairness requires only that a party be given ‘a reasonable opportunity to present his case’ and not that the tribunal ensure ‘that a party takes the best advantage of the opportunity to which he is entitled’. And it is always relevant to enquire whether a party or his legal representative should reasonably have apprehended that the issue was or might become a live issue.”

The quote is from Deane J as part of the Full Federal Court in Sullivan v Department of Transport (1978) 20 ALR 323, 343.

117 Although Gaudron J uttered those words in an administrative law context they have been applied to civil litigation, the most recent example being Duong v Tran [2010] NSWCA 280 [56] and see McCarthy v Law Society of NSW (1997) 43 NSWLR 42, 62.

118 In some cases, the allegation is such that the person concerned does not want to go into the witness box and be questioned about it and declines to give evidence. However, so long as the allegation is made completely clear so that the person has the opportunity to meet it by his or her own evidence or by independent evidence or by documents, it matters not that the matter was not actually put to the person in cross-examination.

119 We have a situation fairly close to that in the instant case. The utterances of the primary judge on the Thursday made it abundantly clear that her Honour felt the matter of what the appellant knew about the MRI was of critical importance to her. The appellant’s counsel, for forensic reasons, decided not to put him in the witness box to answer further these matters. Of course it was possible for the respondent’s counsel to seek to recall the appellant for further cross-examination. But one might ask rhetorically, why should he? There was just as much purpose in doing that as it would have been for the appellant’s counsel to cross-examine the respondent on the alleged admission against interest.

120 Thus, in my view, a new trial is not justified merely because the appellant was not cross-examined on the matter.

121 Further, I am concerned with the submission which seemed to me virtually to amount to the proposition that if counsel hints to the judge that he or she will do something if the judge wishes him or her to do so and the judge does not give guidance and counsel loses the case then there has been an unfair trial.

122 At Black 402, senior counsel for the appellant said to the primary judge:

“The plaintiff has been in a depressive state on a lot of the evidence. I’ll call him if your Honour wishes me to call him as to what his appreciation of the significance of it was.”

123 The primary judge did not react to that except to say that she was going to allow a longer luncheon adjournment to get in touch with Dr Ghabrial.

124 It is put before us that counsel were misled by her Honour’s non-reaction that it was not vital to call the appellant.

125 It must always be remembered that although in modern litigation judges play a more active role that once they did, counsel is in charge of the presentation of the case, not the judge. There is even authority for the proposition that whilst a judge should feel at liberty to mention to counsel a point of law or a recent decision which is concerning him or her, there is no obligation to do so, and indeed, the House of Lords suggested that it should not be done where experienced counsel is appearing: see Banbury v Bank of Montreal [1918] AC 626 at 661. Furthermore, the High Court has, in recent years, reminded this Court and we have reminded others, that cases are to be decided on the points and issues raised by the parties and not those which the court considers they ought to have raised; see eg Kuru v New South Wales [2008] HCA 26; 236 CLR 1.

126 Whilst it is clear from Stead and other cases, that judges must be careful not to make utterances which would reasonably mislead counsel, there is no obligation on a judge to respond to a query from counsel. As a trial judge, I often had the situation where counsel says: “If your Honour wishes, I will do X” to which my reply usually is: “That is a matter for you Mr or Ms So and So” at least unless the answer is obvious or a consensual position is reached. The wishes of the judge about a matter are really quite irrelevant. Furthermore, it is counsel who may have a good overview of the case, rather than the judge who may still be putting the pieces of the jigsaw together and not have all the pieces in the puzzle.

127 Nor is it appropriate if counsel makes a forensic decision based on his or her reading of a judge’s reaction to say that the trial has miscarried because of the forensic decision based on a misconception.

128 Accordingly, to my mind there was no reason to grant a retrial because of the way counsel read the judge’s reaction, or because the material on which the judge relied was not actually put to the appellant in cross-examination.

129 There remains, however, some unsatisfactory points about the judgment, namely, (a) the judge’s misinterpretation of the Family Court evidence; and (b) the judge’s finding contrary to the true position that she was left without an explanation for the appellant’s failure to bring the MRI scan to the attention of his counsel or the court.

130 The test in Stead is whether had these problems not existed, the trial could possibly have produced a different result.

131 My view is that when one looks at all the other deficiencies in the plaintiff’s evidence, his being the only substantial evidence in his favour on liability, the answer to that question is “No”. I cannot see a justification for ordering the parties to go through another 11 day trial basically because of a forensic decision, which may well have been justified when it was made, turning out not to be favourable to the appellant.

132 Accordingly, in my view the appeal should be dismissed with costs.

133 HANDLEY AJA: In this appeal I have had the benefit of reading the reasons for judgment of Beazley JA and Young JA in draft.

134 The case turned on the credit of the appellant, the respondent, and the respondent’s passenger, Mr Lewis. The incontrovertible facts were few and did not support the case for either party. In these circumstances the trial Judge made credit findings adverse to the appellant and dismissed his case. Appellants normally face considerable difficulties in overcoming adverse credit based findings but appellate intervention may be justified where the trial Judge has misused his or her advantage. This can occur if the trial Judge makes errors in finding other facts which are taken into account in making the critical credit findings.

135 In my judgment this is what has occurred in this case following the revelation that the appellant had had an MRI on 29 September 2008. Beazley JA has set out the relevant facts in paras [18] – [29], [37] – [38], and [42] – [47] of her judgment.

136 The trial Judge held in para [31] of her judgment that the plaintiff did not inform the Court about the MRI and in para [33] she said that she had been left without an explanation for the plaintiff’s failure to bring this matter to the attention of his counsel or the Court.

137 These findings were incorrect because senior counsel for the plaintiff had informed her Honour on 6 November 2008, as recorded in the transcript, that the plaintiff had told his solicitors and counsel about the MRI on Monday 4 November and senior counsel had decided that it was then too late for the plaintiff’s legal advisers to do or say anything about it.

138 The Judge may have forgotten about this explanation and she may not have had the benefit of the transcript. However, she was given an explanation which did not reflect adversely on the plaintiff’s credit in any way. He was not responsible for the decision of his legal advisers to say nothing about the MRI which was not even in their possession. If any criticism were called for it should have been directed at his legal advisers.

139 Statements of senior counsel from the bar table are traditionally accepted without question. If her Honour was not prepared to accept senior counsel’s explanation without sworn evidence, she should have said so.

140 The plaintiff clearly knew that he had had an MRI but it was not self-evident that he was aware of the result. Senior counsel’s statement that the plaintiff was not aware of the result was not challenged either by her Honour or by his opponent. In the absence of evidence on the topic the Judge was not entitled to find that the plaintiff was aware of the result.

141 Notwithstanding the strength of the matters referred to by Young JA I must agree with Beazley JA that the Court cannot find that the Judge’s errors about the MRI were immaterial and had no influence on her findings about the appellant’s credit. On the contrary, the Judge said that she took this matter into account on that very question. I agree with the orders proposed by Beazley JA.

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