Stathooles v Mount Isa Mines Ltd

[1996] QCA 323

IN THE COURT OF APPEAL	[1996] QCA 323
SUPREME COURT OF QUEENSLAND

Appeal No. 284 of 1995

Brisbane

[Stathooles & Ors v. Mt Isa Mines]

BETWEEN:

GABRIEL STATHOOLES

(First Plaintiff)

First Appellant

- and -
TOWNSVILLE DEMOLITIONS PTY LTD (ACN 010 490 123)

(Second Plaintiff)

Second Appellant

- and -
GABRIEL STATHOOLES, ELAINE MARY STATHOOLES and
LAWRENCE GEORGE TROTMAN trading as R & R HOUSE REMOVALS

(Third Plaintiffs)

Third Appellants

- and -
ELAINE MARY STATHOOLES trading as R & R HOUSE REMOVALS

(Fourth Plaintiff)

Fourth Appellants

- and -
GABRIEL STATHOOLES and LAWRENCE GEORGE TROTMAN

trading as R & R HOUSE REMOVALS

(Fifth Plaintiffs)

Fifth Appellants

AND:

MOUNT ISA MINES LIMITED

(Defendant)

Respondent

Macrossan CJ
Pincus JA

White J

Judgment delivered 03/09/1996.

Separate concurring reasons for judgment of each member of the Court.

Appeal dismissed with costs.

CATCHWORDS:	APPEALS - New trial - Whether new trial should be ordered - whether miscarriage of justice - Judge inattentive during evidence - no objection below.
Counsel:	Mr R.N. Chesterman QC for the appellant. Mr R.J. Douglas for the respondent.
Solicitors:	Nehmer Davenport Dean McKee, by their town agents Hunt and Hunt, for the appellant. Bowdens for the respondent.
Hearing Date:	12August1996.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 284 of 1995

Brisbane

Before Macrossan CJ

Pincus JA

White J

[Stathooles & Ors v. Mt Isa Mines]

BETWEEN:

GABRIEL STATHOOLES

(First Plaintiff)

First Appellant

- and -
TOWNSVILLE DEMOLITIONS PTY LTD (ACN 010 490 123)

(Second Plaintiff)

Second Appellant

- and -
GABRIEL STATHOOLES, ELAINE MARY STATHOOLES and
LAWRENCE GEORGE TROTMAN trading as R & R HOUSE REMOVALS

(Third Plaintiffs)

Third Appellants

- and -
ELAINE MARY STATHOOLES trading as R & R HOUSE REMOVALS

(Fourth Plaintiff)

Fourth Appellants

- and -
GABRIEL STATHOOLES and LAWRENCE GEORGE TROTMAN
trading as R & R HOUSE REMOVALS

(Fifth Plaintiffs)

Fifth Appellants

AND:

MOUNT ISA MINES LIMITED

(Defendant)

Respondent

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 03/09/1996.

The appellants, by notice dated 21 December 1995, instituted an appeal against part of a judgment pronounced on 29 November 1995 by a judge of District Courts. The ground stated in the notice was that, in assessing credibility of witnesses in the trial, the judge failed to take advantage of his position as trial judge. Particulars of the ground were first stated when submissions in support of the appeal were lodged on 19 January 1996. It then appeared that the failure to take advantage which was relied on, was that the judge was inattentive to an important portion of the evidence as it was given in the hearing. It was said that he had fallen asleep.

When the hearing of the appeal commenced, counsel for the appellants indicated that they did not pursue their remedy in the form of an appeal, but, relying upon exactly the same ground, they sought a new trial. It was contended that in the circumstances a miscarriage of justice had occurred which was sufficient to justify their request.

The respondent opposed the new trial application and did not accept the version of events on which the appellants based it. Evidence was called on this issue and it will be discussed below. No response to the allegation has been sought from the judge by either of the parties or by this Court. In the circumstances, this presents no obstacle to the determination of the application.

The appellants, Gabrielle Stathooles and Lawrence George Trotman, trading as R&R House Removals had been the fifth plaintiff below and they, and certain other parties involved with them, had commenced proceedings in the District Court at Mt Isa claiming damages for breach by the respondent of a contract for the removal at the respondent's request of structures known as the Lutheran Child Care Centre, from one site in Mt Isa to another. The claim was that the respondent had repudiated the contract, so causing loss to the appellants in their business of house and building removalist. The judge rejected the claim although he assessed the quantum of the loss at $25,000. He then gave judgment in the action for the respondent.

The judge rejected the claim because he did not accept that a contract for removal had ever been concluded between the parties. The decision on this point depended on which version of certain conversations between Mr Stathooles, acting on behalf of the appellants, and Mr Gilles, acting on behalf of the respondent, should be accepted. On this critical aspect, the versions were in conflict and the judge accepted the evidence of Mr Gilles, rejecting that of Stathooles.

The new trial application does not seek any rehearing on the amount of damages but asks for a new trial only on the issue whether a contract had been concluded.

The trial judge's reasons explain how he reached his conclusion on the disputed issue and set out the facts he has found.

Mr Gilles, wishing to arrange for the relocation of the structures referred to, obtained the name of a removalist to contact and telephoned and spoke to Mr Stathooles. The appellants sent Mr Gilles a written quote of $148,120.00 explaining some of the matters that would be included. Subsequently, Mr Stathooles telephoned Mr Gilles seeking to know the fate of the quote he had given. The parties' versions of the telephone conversation differ.

Mr Stathooles said that Mr Gilles told him that the quote "seems all right, but it seems a little bit too high". He said that Mr Gilles asked him for some breakdown of how the figure was arrived at and he replied that it was not their normal practice to provide that. He was then asked whether he would be prepared to come out to Mt Isa to discuss the price. Mr Stathooles said that this exchange then occurred:

Stathooles to Gilles, "We are not coming out to Mt Isa unless we have got the job."; Gilles to Stathooles, "We are going to get you people to do the work, the relocation of the building." Further matters were discussed including the possibility of removing another building to a new location but the appellants rely upon those quoted sentences as constituting acceptance of their offer. Mr Gilles, on the other hand, denied that any words constituting an acceptance had been used by him and said that nothing to that effect had been said.

The trial judge's reasons refer to the form in which Mr Stathooles answered questions in cross-examination upon the conversation constituting the alleged acceptance of the quote. Mr Stathooles did not depart from his assertion that words constituting acceptance had been uttered. While there was some variation in the words which, under questioning, he said were used, a recurring similarity may be noted. The difference, to the extent that it existed, was, however, regarded by the trial judge as significant. Whether these differences were truly significant, as the trial judge found, or whether the variations were not remarkable and were no more than might be expected of a remembered conversation of which no written record was taken, is a matter which, for the determination of the application, may be put to one side. It can be left with the observation that the trial judge regarded the variations in Mr Stathooles's answers to questioning on the topic as something that he found of assistance in rejecting his account. In this process the judge also relied upon the form of answer given by Mr Stathooles to interrogatories which had been delivered for his examination. The judge referred to what he described as "a further example of his (Stathooles) uncertainty" appearing in the transcript at page 36 where some variation with a sworn answer to an interrogatory was to be found. Summing up his view, the judge said:

"I did not find Mr Stathooles a persuasive witness and the passages of evidence to which I have just referred illustrate his inability to give one consistent account of his telephone conversation with Mr Gilles in respect to the vital matter."

And also:

"After hearing from Mr Stathooles I was left reluctant to accept his evidence unless there were further confirmatory evidence put before me".

Mr Gilles's evidence was to the effect that Mr Stathooles was willing to visit Mt Isa and did so before the quotation was supplied and that he visited on a second occasion when there was some conversation about the price for the work and the price for other work as well. A letter dated 2 November 1990 was written by another person, a Mr Thinee, on Mr Gilles's behalf. In that letter, acceptance of the quote was denied but the work was offered to the appellants at a price of $108,000. That offer was not accepted by the appellants. Finding that no contract between the plaintiff and the defendant was concluded, the judge expressed himself as preferring Mr Gilles's evidence "which accords with the probabilities". The judge further said:

"The difficulty which arises in this case is that Mr Stathooles gave so many conflicting versions of what Mr Gilles's response was that I cannot rationally select one of them as the actual response made by Mr Gilles, even one such as, `You people are doing the removal of the school'".

After the notice of appeal had been filed and served and particulars given, communications between the parties revealed that there was a dispute about events at the trial. Affidavits were sworn by the legal representatives of the applicants.

Mr Askin, a member of the firm of Nehmer, Davenport, Dean and McKee, acting for the appellants, was the solicitor instructing at the trial. He has sworn three affidavits dated 7 February 1996, 31 July 1996 and 9 August 1996. Mr Pope was counsel for the appellants at the hearing and he has sworn an affidavit dated 8 August 1996. Mr Carter, a member of the firm of Bowdens, solicitors for the respondent, was present at the trial instructing counsel and he has sworn an affidavit dated 8 August 1996. All of these affidavits were read by leave at the hearing, there being no opposition to that course. Mr Askin and Mr Pope, but not Mr Carter, were called for cross-examination. No direct challenge was made to Mr Carter's version.

The effect of the testimony of Mr Askin and Mr Pope was that the trial judge fell asleep at points in the proceedings they referred to. Mr Carter's testimony was that he was present in court during the trial and in particular during the cross- examination of Stathooles and Gilles, and at no time did he observe the trial judge appearing to be asleep. One observation he offered in respect of the judge was that during the trial he was attentive to the questions asked and interposed on a number of occasions to ask questions himself. Mr Carter has also stated that no comment was made to him or in his hearing by anyone associated with the trial (including the representatives of the appellants) suggesting that the trial judge had been asleep during part of the evidence. He first became aware of that suggestion only when the outline of argument was delivered on behalf of the applicants on 19 January 1996.

Mr Askin has deposed to his observations and referred to contemporaneous notes which he took of points at which the judge, as he said, dozed or slept. At one point he said the judge's associate stood up and wakened the judge by touching him on the arm and offering him a glass of water. Mr Askin said he believed that the judge was sound asleep and not listening to the evidence and that he noticed his own counsel look at the judge. He did not speak to his counsel about the matter immediately but did so subsequently. He believed that was on the evening of the same day. The incident in the cross-examination of Mr Stathooles to which he deposed had taken place in the morning session before the luncheon adjournment.

Mr Askin conceded that he could not be sure that the judge was not listening with eyes shut. When asked why he had not thought to raise the matter, he replied that he did not know what to do and had never been in a situation like that before. The matter was not subsequently raised with the judge at any time during the trial.

Relying on his recollection, assisted by the notes he made at the time, Mr Askin asserted that the judge slept from a point in the evidence at page 33 of the record until page 36, line 42. This was during the cross-examination of Mr Stathooles.

Mr Askin described a similar observation of the judge at a point during the evidence of Mr Gilles before the end of page 91 of the transcript.

Mr Pope described his similar observation on the first day of the trial during the cross-examination of Mr Stathooles ending when the judge appeared to revive as his associate poured a glass of water and touched him to attract his attention. Mr Pope did not observe any second similar incident during Mr Gilles's evidence in- chief. Mr Pope took no action when he made his observation. He simply allowed the matter to proceed.

To put in perspective the matters referred to by Mr Askin and Mr Pope, it can be said that the trial extended over two days and four witnesses were called in the course of it. The critical witnesses giving direct evidence from which the existence or otherwise of the contract had to be determined were Stathooles and Gilles. The resolution of the question depended essentially upon a matter of credit. The examination in-chief of Stathooles had extended over some four pages of transcript and his cross-examination on all issues that arose extended over some sixty-eight pages. Mr Gilles's examination in-chief extended over eight pages, and his cross- examination over about seventeen pages.

A broad discretion does exist for an appellate court to order a new trial in civil cases where a first trial has been unfair: see the remarks of the English Court of Appeal in Jones v. National Coal Board [1957] 2 Q.B. 55 at 67 quoted with approval by the High Court in Stead v. State Government Insurance Commission (1986) 161 C.L.R. 141 at 145. In civil, as in criminal cases, the discretion can be exercised when the first trial has resulted in a miscarriage of justice. A helpful survey of the different classes of cases which may fall within this category is to be found in the judgment of Lowe J in the Victorian Full Court in Cox v. Snowball and Kaufmann [1930] V.L.R. 325 at 341- 344. The wide nature of the "discretion to control the conduct of trials to prevent injustice" and "to grant a new trial at nisi prius because the conduct of the trial was unsatisfactory" is referred to also by Windeyer J in Transport and General Insurance Co. Ltd v. Edmondson (1961) 106 C.L.R. 23 at 31-32.

The exercise of the discretion to order a new trial on the basis that a miscarriage of justice has occurred may require a wide view to be taken of the circumstances but it is necessary to remember that our adversarial system requires parties to proceedings to accept responsibility for their own actions deliberately and consciously taken. Decisions taken by parties with a full awareness of relevant matters can strongly influence the way in which the discretion in cases of an alleged miscarriage of justice will be exercised. This is well illustrated by the following observations made in a joint judgment of the High Court in Vakauta v. Kelly (1989) 167 C.L.R. 568 at 572. The Court, dealing there with a case where it was claimed that the conduct of a trial judge gave rise to a perception of bias, said:

"A party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her."

The argument of the appellants in the present case drew attention to the fact that the determination of the case turned on the credit of witnesses and the judge had been inattentive for a period especially during the cross-examination of

Stathooles, yet made a finding adverse to him. It was said that a conclusion had been reached which might have been different if there had been no failure on the part of the judge to observe and listen to that witness throughout his testimony.

The mere possibility of a different outcome may be sufficient to attract the exercise of the court's discretion if other features combine with it to support the view that there has been a miscarriage of justice: Stead v. State Government Insurance Commission (supra). In Stead's case a party had been deprived of the opportunity to make submissions on an issue of fact, yet in ordering a new trial, the Court declared that not every departure from the rules of natural justice will entitle the aggrieved party to a new trial. It would have to be said that although momentary or more substantial inattention on the part of the judge to some part of the evidence or submissions may occur in a particular case, it would not necessarily mean that the trial has miscarried. The point in the evidence or submissions at which that had taken place and its significance in terms of the matters calling for decision and actually decided would need to be considered before it could be said that there had been a miscarriage of justice.

In the present case there has been an allegation of inattention during what can be described as a potentially significant period while witnesses whose credit was critical were dealing with central issues. The reaction of experienced counsel at the time may be some index to the importance of the passages of the evidence then unfolding, but this will not be the only guide to the significance of what was being stated by a witness and not heeded by the judge. The lack of reaction here by counsel fully aware of the situation is of importance from a different point of view. It cannot be accepted that there is an entitlement to do nothing at the time, hold the point in reserve until the decision is given and then, since it has proved to be adverse to the appellants, seek to set it aside. The remarks quoted from Stead's case (supra) are most relevant in this connection.

Researches reveal that in other jurisdictions, attempts have been made to challenge proceedings on the basis that a judge or juror has fallen asleep or otherwise been inattentive. Attention is usually directed to the reaction at the time of the party later complaining. See R v. Grant [1964] S.A.S.R. 331 and R v. Edworthy 17/2/61 unreported, noted in (1961) Crim. L.R. 325, R v. Langham & Langham 25/4/72 unreported, noted in (1972) Crim. L.R. 457, Dehoughne v. Western Union Telegraph Co. 84 S.W. 1066 (1905) and Ferman v. Estwing Manufacturing Co. 334 N.E. 2d 171 (1975).

It may well make a difference if a party seeking to set aside a judgment has not been legally represented or has not been fully aware at the time of an event in the course of a trial which is subsequently pointed to in an attempt to impugn the decision. In the present case, if what is alleged to have occurred is sufficient to constitute a significant defect in the proceedings, it should have been drawn to the attention of the trial judge at the time it occurred. To experienced counsel there should have been no difficulty other than perhaps some slight embarrassment in being required to draw the judge's attention to the concern that was felt that he may be missing an important feature of the evidence. Experienced professional advocates may be called on to display conduct which will need to be more robust than that in their day to day practice in the courts. There should have been no fear that what needed to be done could not have been handled with the customary courtesy that should, and usually does, prevail between judge and counsel in the hearing of cases.

No attempt was made here to draw the attention of the judge to the alleged deficiency in his attention to the evidence, nor was the attention of the legal representatives on the other side ever drawn to what is alleged to have occurred until after the decision emerged, adverse to the parties now complaining. It would be unjust to the respondent, who has been successful, to allow reliance now to be placed on the point and deprive it of the benefit of the judgment which has resulted from the trial.

The appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 284 of 1995.

Brisbane

Before Macrossan C.J.

Pincus J.A.

White J.

[Stathooles & Ors. v. Mt Isa Mines Limited]

BETWEEN:

GABRIEL STATHOOLES

(First Plaintiff) First Appellant

- and -
TOWNSVILLE DEMOLITIONS PTY LTD (ACN 010 490 123)

(Second Plaintiff) Second Appellant

- and -
GABRIEL STATHOOLES, ELAINE MARY STATHOOLES and
LAWRENCE GEORGE TROTMAN trading as R & R HOUSE REMOVALS

(Third Plaintiffs) Third Appellants

- and -
ELAINE MARY STATHOOLES trading as R & R HOUSE REMOVALS

(Fourth Plaintiff) Fourth Appellant

- and -
GABRIEL STATHOOLES and LAWRENCE GEORGE TROTMAN
trading as R & R HOUSE REMOVALS

(Fifth Plaintiffs) Fifth Appellants

AND:

MOUNT ISA MINES LIMITED

(Defendant) Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 03/09/1996

I have read the reasons of the Chief Justice. If there is a deficiency relating to the conduct of a trial, the practice is that counsel will raise the point at the trial, particularly if doing so may lead to some action on the part of the judge which corrects the position. A common example of this occurring is that counsel will draw the judge’s attention to some personal connection the judge is known to have with the parties in a case, of such a kind as perhaps to disqualify him or her. It has been known to happen that taking that step arouses judicial irritation, but it is important that the prospect of that reaction not deter counsel from raising any proper objection with the judge, at the trial.

Here, one side says the judge appeared to be asleep during a time sufficient to produce three or four pages of transcript; the other side says it made no such observation. It would have been simple enough to test the position at the time, for example by addressing a remark to the judge, but that was apparently not thought of. If the factual contest to which I have referred were determined in favour of the appellants, still it would not be right to order that the whole matter be tried again; the conduct of which the appellants complain could if it occurred easily have been brought to an end by the appellants and any necessary remedial steps taken, at the trial.

I agree, for these reasons and those given by the Chief Justice, with the order his

Honour proposes.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No of 284 of 1995

Brisbane

Before Macrossan CJ

Pincus JA

White J

[Stathooles & Ors v. Mount Isa Mines Limited]

BETWEEN:

GABRIEL STATHOOLES

(First Plaintiff)

First Appellant

AND:

TOWNSVILLE DEMOLITIONS PTY LTD (ACN 010 490 123)

(Second Plaintiff)

Second Appellant

AND:

GABRIEL STATHOOLES, ELAINE MARY STATHOOLES and LAWRENCE GEORGE TROTMAN trading as R & R HOUSE REMOVALS

(Third Plaintiffs)

Third Appellants

AND:

ELAINE MARY STATHOOLES trading as R & R HOUSE REMOVALS

(Fourth Plaintiff)

Fourth Appellant

AND:

GABRIEL STATHOOLES and LAWRENCE GEORGE TROTMAN

trading as R & R HOUSE REMOVALS

(Fifth Plaintiffs)

Fifth Appellants

AND:

MOUNT ISA MINES LIMITED

(Defendant) Respondent

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 03/09/1996

I have read the reasons of the Chief Justice and Pincus JA and agree with them. The discretion to order a new trial in civil cases where the first trial has been unfair is a broad one. The discretion will be exercised when there has been a miscarriage of justice.

Since this was a credit case and the judge was said to have been asleep during part of the evidence of one of the parties against whom an adverse finding was made, that would, without more, be sufficient to conclude that a miscarriage of justice has occurred. But it cannot be right to order a new trial on the application of the party who challenges the fairness of the proceedings if, fully informed of the situation at the time through his counsel, he stood by and allowed the occasion to pass without comment either to the judge or to the other side.

I agree that the appeal should be dismissed.