Tan v Silverdale Sand & Soil Pty Ltd
[2014] NSWSC 391
•04 April 2014
Supreme Court
New South Wales
Medium Neutral Citation: Tan v Silverdale Sand & Soil Pty Ltd [2014] NSWSC 391 Hearing dates: 13 December 2013 Decision date: 04 April 2014 Before: McCallum J Decision: Appeal dismissed
Catchwords: LOCAL COURT - appeal - whether Magistrate erred in allowing witness to give evidence via mobile phone - whether Magistrate erred in failing to give adequate reasons Legislation Cited: Civil Procedure Act 2005, s 56
Evidence (Audio and Audio Visual Links) Act 1998, s 5B
Local Court Act 2007, s 39
Uniform Civil Procedure Rules 2005, r 31.3Cases Cited: Beale v GIO [1997] 48 NSWLR 430
Keith v Gal [2013] NSWCA 339
Whalen v Kogarah Municipal Council [2007] NSWCA 5
Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127Category: Principal judgment Parties: Kim Chuan Tan (plaintiff)
Silverdale Sand & Soil Pty Ltd (1st defendant)
Carl Andrew Smith (2nd defendant)Representation: Counsel:
J Gruzman (plaintiff)
C Jackson (defendants)
Solicitors:
Gells Lawyers (plaintiff)
Lee & Lyons Lawyers (defendants)
File Number(s): 2013/234175 Publication restriction: None
Judgment
HER HONOUR: This is an appeal from a decision of the Local Court sitting in its General Division. An appeal against such a decision may be brought as of right on a question of law: s 39 of the Local Court Act 2007.
The proceedings in the Local Court arose from a collision on the Warringah Freeway between a Mercedes Benz driven by the plaintiff, Dr Tan and a truck and trailer driven by the second defendant, Mr Smith. Mr Smith is an employee of the first defendant. Dr Tan claimed $55,000 for damage caused to his car. The damage to the truck was confined to one of the tyres on the trailer, which was replaced at the cost of $450. There was no cross-claim to recover that cost. Damage and quantum were agreed. The only issue at the hearing was liability.
Dr Tan was driving with his wife from Killara to the city to have lunch. He entered the Warringah Freeway from Willoughby Road. He said that he drove on that Freeway about twice a week. He was heading for the Harbour Bridge. Mr Smith was carting a load of sandstone from Chatswood to Kurnell. He had been driving that route approximately 25 times a week for nine months. He was heading for the Harbour Tunnel.
There were competing versions as to how the accident occurred. Dr Tan said that, after entering the freeway, he was proceeding in the left-most lane (which I will call the first lane) when the truck came level with his driver's side door and moved into his lane, colliding with the right-hand side of his car and forcing the passenger side into contact with the gutter. He said that his car was scraped against the entire length of the truck and trailer.
The defendants' case was that the truck was driving in the second lane when Dr Tan attempted to change lanes so as to move in behind it, failing to notice the trailer (which was connected to the truck by a drawbar) and colliding with the corner of the trailer before bouncing off it and hitting the kerb.
Dr Tan's version was corroborated by his wife, who was a passenger in the car. The defendants' version rested mainly on the evidence of another truck driver employed by the first defendant (referred to in this judgment as the witness). The witness stated that he was driving his truck approximately 30 metres behind Mr Smith's truck when the accident occurred. The witness said that it was the Mercedes that changed lanes, not the truck. Mr Smith was unaware of the collision until he was informed of it by the witness on the two-way radio. Mr Smith could thus give no evidence of any observation of the actual collision. He was able only to say that he had not changed lanes and that he had no need to change lanes, since he was heading for the Harbour Tunnel. The lane he was in heads straight to the tunnel.
In a decision based largely on the credibility of the witness, the learned Magistrate accepted the defendants' version of events and dismissed the plaintiff's claim with costs.
Grounds of appeal
The plaintiff appeals against that decision. The amended summons sets out the following fourteen grounds of appeal:
(1) The learned Magistrate erred at law by allowing [the witness] to appear and give evidence by telephone pursuant to r 31.3 of the Uniform Civil Procedure Rules 2005 (NSW);
(2) The learned Magistrate erred at law by directing the evidence of [the witness] be given by audio link, contrary to the provisions of s 5B of the Evidence (Audio and Visual Links) Act 1998 (the Act) when it was unfair to the plaintiff;
(3) The learned Magistrate erred at law by failing to consider whether or not the court was satisfied that the audio link direction would be unfair to the plaintiff contrary to the provisions of the Act;
(4) The learned Magistrate erred at law by failing to give reasons as to why the court was not satisfied that the direction would be unfair to the plaintiff;
(5) The learned Magistrate erred at law by failing to consider whether the defendants had satisfied the court that it was in the interests of the administration of justice for the court to make the audio link direction as required by the Act;
(6) The learned Magistrate erred at law by failing to give reasons as to why the defendants had satisfied the court that it was in the interests of the administration of justice for the court to make the audio link direction;
(7) The learned Magistrate erred at law by making the audio link direction contrary to s 5B(2)(c) & (3) of the Act.
(8) The learned Magistrate erred at law by finding that the affidavit of [the witness] was admissible pursuant to s 63 of the Evidence Act in circumstances where s 67 of the Evidence Act had not been complied with.
(9) The learned Magistrate erred at law by finding that the affidavit of [the witness] was admissible pursuant to s 63 of the Evidence Act in circumstances where no reasonable notice in writing had been given by the defendants pursuant to s 67 (1) of the Evidence Act.
(10) The learned Magistrate erred at law by finding that the affidavit of [the witness] was admissible pursuant to s 63 of the Evidence Act in circumstances where the defendants had not made an application pursuant to s 67(4) of the Evidence Act.
(11) The learned magistrate erred at law by denying the Plaintiff natural justice or procedural fairness by hearing the application for the audio link on the morning of the hearing.
(12) The learned Magistrate erred at law by denying the Plaintiff natural justice or procedural fairness allowing [the witness] to appear and give evidence by telephone in circumstances where the Plaintiff was denied the opportunity to conduct a full and proper cross-examination of Sean Carter.
(13) The learned Magistrate erred at law by failing to give adequate reasons as to why [the witness] was found to be a witness of truth.
(14) The learned Magistrate erred at law by failing to consider all relevant evidence and give adequate reasons as to why certain relevant evidence was accepted over conflicting relevant evidence.
Those grounds were distilled at the hearing to two main issues. The first is whether the Magistrate erred in directing that the witness give his evidence by telephone. The second is whether the Magistrate erred in failing to give adequate reasons for his decision.
The witness's evidence
The witness was served with a subpoena to give evidence issued at the request of the defendants. He swore an affidavit on 12 October 2012. The hearing was originally set down for 20 November 2012. The witness attended court on that day, along with the other witnesses. However, the hearing was adjourned following an application by Dr Tan for leave to amend his statement of claim to include a demurrage claim (which was ultimately not pursued). Accordingly, the witness was not required to give evidence that day.
The hearing was then set down for 15 May 2013. By that time the witness had experienced what was described as "a nervous or mental breakdown". The defendants' lawyers contacted him by mail and telephone, but were unable to secure his attendance at court. The witness's doctor provided a medical certificate stating that the witness was "unable to attend court on 15.15.13 due to depression and anxiety".
On 14 May 2013 the defendants' lawyers wrote to the lawyers for the plaintiff giving notice that they intended to rely on the witness's affidavit pursuant to section 63 of the Evidence Act 1995. The plaintiff opposed that application (T50-55). At the conclusion of the hearing the following exchange took place between the Magistrate and counsel for the defendants (T107):
HIS HONOUR: I guess it's all academic about [the witness] because it's now six minutes to four. So with any luck he'll be better next time and might be able to come, right?
O'CONNOR: Yes, your Honour, because I mean submissions may take a while so we'll have to list this matter for submissions.
HIS HONOUR: Yes. If he comes that will take a bit and then there are submissions.
The hearing was set down to continue on 5 July 2013. A lawyer for the defendant telephoned the witness on 19, 20, 21, 24 and 27 June; left voicemail messages on his mobile phone and mailed him a letter on 27 June in an attempt to secure his attendance at court. The letter reminded him that he was required by subpoena to attend. On 2 July the witness contacted the defendants' lawyers and told them he was too unwell to attend court as he could not be around people. The lawyer asked whether he could give evidence by telephone and he said he could. That day the defendants' lawyers sent a letter by fax to the plaintiff's lawyers notifying them that they proposed to have the witness give evidence by telephone and that they intended to rely on his affidavit. The witness's doctor provided a medical certificate stating that the witness was unfit for work between 3 and 6 July 2013 because he was suffering from panic attacks and depression.
At the hearing on 5 July 2013, counsel for the plaintiff opposed the application for the evidence to be given by telephone. She also opposed the defendants' being allowed to rely upon his affidavit (T111). The Magistrate made an order under rule 31.3 of the Uniform Civil Procedure Rules 2005 allowing the witness to give evidence by telephone (T7). That rule provides:
If the court so orders, evidence and submissions may be received by telephone, video link or other form of communication.
The Magistrate's attention was not drawn to section 5B of the Evidence (Audio and Audio Visual Links) Act 1998, which provides:
5B Taking evidence and submissions from outside courtroom or place where court is sitting-proceedings generally
(1) Subject to any applicable rules of court, subsection (2A) and section 5BAA, a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting.
(2) The court must not make such a direction if:
(a) the necessary facilities are unavailable or cannot reasonably be made available, or
(b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or
(c) the court is satisfied that the direction would be unfair to the party, or
(d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission.
(2A) A court must not make a direction under this Part in relation to the giving of evidence or making of a submission by audio visual link by any accused detainee in any criminal proceeding in relation to the detainee concerning an offence alleged to have been committed by the detainee. However, this subsection does not prevent the making of such a direction in relation to an accused detainee in any other proceeding to which this Part applies.
Note. Part 1B of this Act contains provisions with respect to the appearance of accused detainees who are in custody in criminal proceedings.
(3) In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so.
(emphasis added)
The plaintiff submits that the Magistrate erred by allowing the witness to give evidence by telephone because the direction was unfair to the plaintiff (s 5B(2)(c)) and was not in the interests of the administration of justice (s 5B(3)).
Unfairness to the plaintiff
The argument before me proceeded on the premise that, under s 5B(2)(c), the court could not make an audio link direction if satisfied that the direction be unfair to the plaintiff. That is not what the section says, in terms. The prohibition arises if the court is satisfied that the direction would be unfair to "the party". Upon reflection, I think that is plainly a reference to the party making the application. The interests of the opposing party are addressed in s 5B(3). That conclusion would dispose of the plaintiff's argument on this ground. However, the plaintiff relied upon the decision of Austin J in ASIC v Rich [2004] NSWSC 467 at [12], where his Honour reached the opposite conclusion. His Honour said (my emphasis):
Section 5B(2) prevents the court from making such a direction in certain circumstances, including where the court is satisfied that "the direction would be unfair to the party" (presumably, the non-applicant party).
With great respect to Austin J, I do not think that presumption is correct. However, having regard to the way in which the argument before me proceeded, it is necessary to address the point in the terms raised by the plaintiff.
The plaintiff submitted that the Magistrate did not address the issue of unfairness and did not give reasons as to why the direction was not unfair to the plaintiff. It was submitted that his Honour appears to have considered that there would be unfairness to the plaintiff if the witness's affidavit were admitted under s 63 of the Evidence Act due to the inability to cross-examine in that event. His Honour reasoned, so it was submitted, that that unfairness could be cured by making an audio link direction. The plaintiff submitted that, in taking that approach, the Magistrate applied the wrong test.
The plaintiff further submitted that the direction was unfair to him, for the following reasons:
it denied his counsel the opportunity to show the witness photographs during cross-examination which it was said were critical to attacking his credit;
it meant that the Magistrate and counsel could not observe the witness's demeanour in order to assess his credibility;
the plaintiff's lawyers did not have the chance to interview the witness before he gave his evidence; and
parts of the witness's evidence were not transcribable.
A threshold issue raised by the defendants is whether those complaints are open to the plaintiff in this appeal. The defendants submitted that counsel for the plaintiff in the Local Court, Ms Walsh, withdrew her objection to the audio link direction during the course of argument and so failed to preserve a right of appeal on that ground.
I do not accept that the objection was unequivocally withdrawn. Ms Walsh stated at the outset of the hearing on 5 July 2013 that the plaintiff opposed both the application for the evidence to be given by telephone and the application for the witness's affidavit to be admitted under section 63 of the Evidence Act (T111). During the course of argument, the Magistrate effectively presented her with a choice: the witness's affidavit would be admitted under section 63 on the basis that the witness was unavailable, giving her no opportunity to cross-examine, or he would give his evidence by telephone and so be made available for cross-examination by that means. It was in that context that Ms Walsh capitulated to the audio link application. That is clear from the following extracts from pages 112-117 of the transcript:
WALSH: Well, your Honour, we therefore wouldn't have the benefit of cross-examination.
HIS HONOUR: You do if you use the telephone. What I was leading up to is that if the document is admissible then you're at a disadvantage, but if you make use of the telephone you're not at a disadvantage because you can at least question him. Sure, you can't see his face but you can at least question him.
WALSH: I understand what your Honour is saying but we say for several reasons you wouldn't be allowing a telephone cross-examination in these circumstances.
HIS HONOUR: I didn't say that.
WALSH: You're asking me to consent to the cross-examination in that manner.
HIS HONOUR: I'm just suggesting that it's something for you to think about. I'm not asking you to consent, I'm just suggesting it. If the affidavit of [the witness] goes in, because he's relevantly unavailable, then I suppose he can be questioned by both of you on the telephone and each of you would be disadvantaged if it doesn't go in, one assumes, and if you can't question. ... (T112)
Similarly, at T116, the following exchange took place:
HIS HONOUR: Okay. Well, unless you've got something to put, I'm prepared - this is a chicken and egg situation.
WALSH: Yes.
HIS HONOUR: I am prepared to make an order under pt 31, whatever it is.
O'CONNOR: Rule 3.
HIS HONOUR: Rule 3, to give evidence by telephone. That will mean that cl 4 and the dictionary definition will not apply because it can't be said that there was a lack of success in compelling him to give evidence because, after all, he is giving evidence, albeit by telephone. If I'm wrong in the view I take in that regard then I would rely on cl 4, in any event, to permit of his affidavit going in. So that will be the position.
WALSH: Your honour, I hear what you're saying, but if I could just note some significant difficulties we would have in relation to cross-examining by telephone. I understand what you're saying, if the affidavit goes in it would be to our disadvantage not to attempt to cross-examine as best we can.
And finally, at T117 counsel for the plaintiff withdrew her objection:
HIS HONOUR: ... Do you want to question him on the telephone?
WALSH: If your Honour is making the order in relation to unavailability the answer is yes.
HIS HONOUR: Yes. Well, as I say, I put it in the alternative that I will make an order that he be able to give evidence by telephone. If you don't seek to cross-examine him, that's then your look out, as it were, but if I'm wrong, I would consider that para (f) of cl 4(1) would apply and his affidavit should go in, in any event.
WALSH: Then we don't oppose the application of evidence given by telephone.
Although the final position stated in that exchange was that the application was not opposed, the capitulation was conditional. In my view, Ms Walsh maintained her opposition to the audio link application with admirable force and clarity. She made clear that the basis on which the application was opposed was that such an order would be unfair to her client. The Magistrate made it equally clear, after hearing argument, that the effect of the orders he proposed would allow cross-examination by telephone or not at all. It was only after that indication was given that Ms Walsh embraced the course of cross-examination by telephone. At no stage did she suggest that she resiled from what she had put regarding the potential unfairness to her client. It was a capitulation to the Magistrate's position, not to the original application. Reading the whole of the argument fairly, I do not think Ms Walsh is to be taken to have consented to the application so as to foreclose any challenge to the order made.
Whether the Magistrate considered fairness to the plaintiff
As already noted, unfortunately neither party drew s 5B to the attention of the Magistrate at the hearing (T112). The only provision drawn to his Honour's attention was rule 31.3(1) of the Uniform Civil Procedure Rules 2005. The Magistrate thought there was a specific power under an Act, and sought the assistance of the parties on that issue, but neither counsel was aware of s 5B at that time. Accordingly, his Honour explicitly directed his mind only to the broad discretion contained in rule 31.3.
The defendants contend that it is nevertheless clear that the Magistrate did give consideration to the issue whether the audio link direction would be unfair to the plaintiff. The plaintiff submits that, instead of considering whether the direction would be unfair, his Honour merely considered whether it would be more or less fair than admitting the affidavit under section 63 of the Evidence Act.
It may be accepted that the Magistrate approached each issue as being arguably informed by the other. I do not think it follows that he applied the wrong test. In taking the approach he did, his Honour considered each of the aspects of fairness that were raised on behalf of the plaintiff. As noted in the defendants' submissions in this Court, the issues of being unable to interview the witness before he gave his evidence and the audibility of the evidence were not raised before his Honour. The issues that were raised were demeanour and the inability to show photographs to the witness. Each of those issues was considered by the Magistrate. That is clear from the following extract from the transcript (at T116):
WALSH: Your Honour, I hear what you're saying, but if I could just note some significant difficulties we would have in relation to cross-examining by telephone. ...
HIS HONOUR: Yes.
WALSH: Obviously this is a witness of credit to the extent that he says he witnesses the accident. He's firmly in the defendant's camp. He was an employee of the defendant at the time, the first defendant.
HIS HONOUR: Well, I appreciate that. Yes.
WALSH: And there's conflicting evidence from the plaintiff that his truck passed some five or ten minutes later after the events.
HIS HONOUR: Yes.
There was also the following exchange (at T117):
WALSH: Other matters that we're at disadvantage is, we obviously can't show any diagrams or photographs.
HIS HONOUR: Sure. But he probably knows the road. ...
The exchange was brief but that does not mean the Magistrate did not engage with the issues raised. The brevity of his response may equally be an indication of the force his Honour saw in the counterveiling considerations of fairness put forward on behalf of the defendants. Their counsel had reminded him that the witness was an important one for the defence as he was the only witness who had seen the two vehicles collide from an outsider's perspective. Moreover, the witness had been available on the original hearing date, which was vacated because of an application by the plaintiffs, and had since fallen ill (T115).
The plaintiff's argument in this Court assumed that an audio link order under s 5B can only be made where there is absolutely no unfairness to the party. But fairness must always be assessed in context. It is clear on a consideration of the section as a whole that the task of the court in considering such an application is to weigh any competing interests of fairness. I do not think the section contemplates that the court must be "satisfied that the direction would be unfair to the party" simply on the basis that considerations of unfairness to that party exist.
The parties drew the Magistrate's attention to competing factors going to the fairness of making an audio link direction. Although his Honour did not address s 5B(2)(c) in terms, his Honour weighed those factors. In my view, it was well open to his Honour to conclude that, in the circumstances, the unfairness to the defendants of not allowing the witness to give evidence by telephone outweighed the considerations of fairness raised by counsel for the plaintiff such that, in all the circumstances, the direction would not be unfair to the plaintiff.
The interests of the administration of justice
The plaintiff submits that, as he had opposed the making of a direction for the evidence to be given by audio link, it was not open to the Magistrate to make the order unless his Honour was satisfied that it was in the interests of the administration of justice to do so: s 5B(3). It was submitted that his Honour did not consider that issue and did not give reasons regarding it. Plainly, there is a degree of overlap between that argument and the issue of fairness to the plaintiff considered above.
The plaintiff submitted that his Honour could not have been satisfied in the terms of the section because:
the proceedings were adjourned on 15 May on the basis that the witness would be available to give evidence in Court;
the defendants did not comply with the procedural requirements for seeking a direction for an audio link, as set out in paragraph 18.1 of Practice Note Civil 1;
directing the witness to give telephone evidence involved injustice as it made it difficult to assess the crucial issue of his credibility by preventing observation of his demeanour and the use of photographs in cross-examination; and
the medical evidence was of no real weight and did not explain why the witness could not have given audio-visual evidence from another courtroom.
As noted on behalf of the defendants, it is not accurate to say that the hearing was adjourned on the strength of any representation that the witness would be available to give evidence on the next occasion. That was, at most, a kindly hope expressed by the Magistrate at the end of the day (see T107 set out at [12] above: "with any luck he'll be better next time and might be able to come"). The matter went over because they had reached the end of usual sitting hours.
In my respectful opinion, although the Magistrate was not directed to the requirements of section 5B(3) and did not explicitly consider that section, it is clear that his Honour's decision reflected his assessment as to where the interests of the administration of justice lay. His exchanges with both counsel were directed to just that. It is evident from that exchange that his Honour considered and balanced the factors that the parties contended were relevant to the application.
The plaintiff did not raise the issue of non-compliance with the Practice Note in the Court below. However, since it is an aspect of his complaint that there was inadequate time to prepare to meet the application, the failure to do so should not be determinative.
The relevant requirement is that the application "must be made at the time the proceedings are listed for hearing" (18.1). Whilst that is obviously an important procedural requirement, absolute insistence upon literal compliance with it will not always serve the interests of the administration of justice. In the present case, the need for the application did not exist at the time the proceedings were listed for hearing or, indeed, on the first hearing date (adjourned due to a late application by the plaintiff). Notwithstanding diligent efforts, the defendants' lawyers did not become aware until a few days before the 5 July hearing that the witness remained unwell and would only give evidence by telephone.
As discussed above, the plaintiff's counsel did raise her concerns about the injustice involved in being unable to assess the demeanour of the witness or to show him photographs over the phone. The Magistrate considered those points but found that they were outweighed by other considerations.
As to the weight of the medical evidence, that was also raised by counsel for the plaintiff and considered at length by the Magistrate. His Honour ultimately concluded that a medical certificate stating that the witness was anxious and depressed and unable to work between 3 and 6 July was sufficient evidence that he could not attend court to give evidence. His Honour was reinforced in that conclusion by the account of the defendants' unsuccessful attempts to secure the witness's presence at court, as set out in an affidavit of one of the defendants' lawyers. I do not think it was unreasonable in the circumstances for his Honour to rely upon a medical certificate provided by the witness's doctor.
After considering the issues raised on behalf of the plaintiff, the Magistrate ultimately considered that they were outweighed by the considerations raised on behalf of the defendants. In my view the transcript reveals that, although he did not have s 5B in front of him, the Magistrate plainly made the order only after satisfying himself as to where the interests of justice lay. Further, in my view, it was well open to his Honour to reach the conclusion he did. The witness was a critical witness who had been available at the original hearing (abandoned through the default of the plaintiff). It was, in my view, open to his Honour to conclude that the witness was not available within the meaning of the Evidence Act, since the section is directed to availability to attend court. However, that is not the basis on which the hearing ultimately proceeded.
The Magistrate's decision also accorded with the interests of justice in that it furthered the overriding purpose of facilitating "the just, quick and cheap resolution of the real issues in the proceedings": s 56 of the Civil Procedure Act 2005. The proceedings were in their third day of hearing. Any attempt to set up an audio-visual link or to compel the witness to attend court would have further delayed the resolution of the case and generated further costs. The Magistrate was rightly concerned by those considerations.
Alternatives to telephone evidence were not raised by the plaintiff in the Court below and would in any event have entailed their own difficulties. The prospect of issuing a bench warrant for the arrest of a man as to whom the evidence was that he was prone to anxiety and panic attacks and "could not be around people" would have been uninviting.
In hindsight, it may have been preferable for the Magistrate briefly to state his reasons for acceding to the application but I do not think that affords any discrete basis for interference. The application was a procedural one brought during the course of a hearing that had already suffered from a measure of delay; the reasons were clear from the immediately preceding argument and Ms Walsh had expressly stated at the conclusion of argument that she withdrew her opposition to the order.
Section 63 of the Evidence Act
Some of the plaintiff's grounds raise the issue of the correctness of the Magistrate's decision concerning the admission of the witness's affidavit under s 63 of the Evidence Act. As submitted by the defendants, the Magistrate ultimately made a direction that the witness give evidence by telephone, rather than admitting his affidavit pursuant to s 63. The affidavit was not ultimately relied upon. Accordingly, it is unnecessary to consider those grounds.
The Magistrate's reasons
The Magistrate's reasons for decision (given ex tempore) did not suffer from the vice of prolixity. His Honour said:
I accept the submissions of the defence. Without making an attempt to recanvass absolutely every minute point, basically I got the impression, although only over the telephone, that [the witness] is telling the truth. He sounded pretty ridgy-didge to me, to use the vernacular. I think he was telling the truth. Yes, he was a bit defensive and truckies can be a bit that way at times. There is the torn mud flap and replaced wheel on the foremost left side of the trailer portion of the truck. Very significant. Those are the two things that tell most favourably for the defence. So far as, on the one hand Dr Tan and his wife and on the other hand Mr Smith, are concerned is the manner of their giving evidence was all right. Notwithstanding what I have said about [the witness], it's difficult to know, even on the balance - worse in criminal cases, of course, but even on the balance it is difficult to say someone is telling the truth or not telling the truth by virtue of their manner. I reckon myself you get one in 20 or 30 people who are very good or very bad.
We Magistrates have been regaled twice, to my recollection, at our three day annual conference by psychologists giving us batteries of information, statistics, films, slides, everything under the sun, the broad effect of which is they reckon you cannot tell and the judges and Magistrates who think they can are wrong and only get it right according to the law of averages and that studies apparently show that confident witnesses are no more likely to be right than under-confident witnesses. Notwithstanding all that, I got the impression [the witness] was telling the truth.
Without trying to canvas every minute detail of the several arguments that are quite reasonably and properly put forward for Dr Tan and his wife, the markings on the tyres, the front tyres - that is, the truck part rather than the trailer part of the truck - and they being clean compared with, supposedly, the far side, the driver's side, is something that might be explained in all sorts of ways without attempting to canvas it. It might be that when they drive in somewhere to where they pick up the sandstone the tyres scrape along something or another, which might clean them on one side. The driver's side wouldn't be scraping along very much as a result but the left hand side, the passenger's side, one might think might.
I do think that it is a bit suicidal of Dr Tan and his wife - or Dr Tan is actually driving - to just swerve into the trailer without looking but people do do things like that occasionally. The most significant factor, in my view, the most decisive considerations are, on the one hand [the witness] was pretty believable and he was independent. All right, he is a work mate of Smith. He works for the same company, but he has got a fair degree of independence about him. He is not a brother or uncle or whatever and the mudflap and replaced wheel on the front left most trailer portion of the truck - was there a cross-claim in this matter? No, I did not think so.
The plaintiff submitted that his Honour's reasons failed to meet the minimum content of the requirement to explain how the court's conclusions were reached, citing Beale v GIO [1997] 48 NSWLR 430 and Keith v Gal [2013] NSWCA 339. In particular, it was submitted that his Honour did not explain why certain evidence was preferred over other evidence and did not refer to certain important evidence, including evidence that was crucial to determining the credibility of the witness.
The defendants submitted that the content of the requirement was to engage with the cases presented by the parties: Whalen v Kogarah Municipal Council [2007] NSWCA 5 at [40]. Reliance was placed upon the statement of Ipp JA in Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127 at 136 as follows:
It is, of course, well settled that a judge does not need to refer to all the evidence in the proceedings or to indicate which of the evidence is accepted or rejected. The extent of the duty to give reasons depends upon the circumstances of the individual case ... The proper administration of justice requires reasons to be given in a form, firstly, that will enable the losing party to understand properly the grounds upon which the case was lost, and, secondly, that will not, effectively, frustrate the losing party's right of appeal.
The defendants submitted that the Magistrate did clearly state his reasons for reaching his decision. The key issue was the credibility of the witness because, if his account was believed, the accident was the plaintiff's fault. The Magistrate stated that he accepted the witness's evidence and gave reasons for doing so. It was submitted that his Honour did also engage with other submissions put forward on behalf of the plaintiff. His brief treatment of those issues in the ex tempore reasons is to be viewed in the context of the exchanges during argument immediately before the judgment was delivered.
A careful summary of the relevant principles is contained in the judgment of Gleeson JA in Keith v Gal [2013] NSWCA 339 at [109] to [119], as follows:
[109] The duty to give reasons is a necessary incident of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 442 per Meagher JA.
[110] The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. As stated by Basten JA (Beazley JA (as her Honour then was) and Macfarlan JA agreeing) in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]:
It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality.
[111] A similar reticence when scrutinising judicial reasons was expressed by Allsop P in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 where his Honour (at [2]) stated that when dealing with large bodies of evidence, a judge may be:
forced to economise in expression and approach in order to be coherent in resolving the overall controversy. The need for coherent and tolerably workable reasons sometimes requires truncation of reference and expression .... That said, central controversies put up for resolution by the parties must be dealt with. The competing evidence directed or relevant to such controversies must be analysed and resolved.
[112] In Mitchell v Cullingral Pty Ltd, Campbell JA gave the lead judgment (with which Allsop P and McColl JA agreed) and stated the requirements for proper reasons for judgment in the following terms:
A trial judge has a duty to refer to material evidence and make findings about material issues in the case: Waterways Authority v Fitzgibbon[2005] HCA 57 ; (2005) 79 ALJR 1816 at [130] (Hayne J). The absence of such findings and the absence of reference to such evidence can properly be taken as showing that the trial judge has erroneously overlooked or discarded it: ibid; Beale v Government Insurance Office of NSW(1997) 48 NSWLR 430 at 443-444 (Meagher JA); Whalan v Kogarah Municipal Council at [40] (Mason P, Ipp JA and Tobias JA); Najdovski v Crnojlovic[2008] NSWCA 175 ; (2008) 72 NSWLR 728 at [21] (Basten JA, Allsop P agreeing); Sangha v Baxter[2007] NSWCA 264 at [22] (Ipp JA, Campbell JA agreeing); Nominal Defendant v Kostic[2007] NSWCA 14 at [59] (Ipp JA, Hodgson JA and Campbell JA agreeing). Another way in which this has been put is that the judge must engage with, or grapple or wrestle with, the cases presented by each party: Whalan at [40]; Kostic at [2]. This is not adequately done by setting out the evidence adduced by one side, setting out the evidence on the other side, and saying that the judge prefers one body of evidence to another: Goodrich Aerospace Pty Ltd v Arsic[2006] NSWCA 187 ; (2006) 66 NSWLR 186 at [28] (Ipp JA, Mason P and Tobias JA agreeing); Kostic at [58].
[113] In Pollard v RRR Corp Pty Ltd[2009] NSWCA 110, McColl JA (Ipp JA and Bryson AJA agreeing) referred to various observations in earlier authorities about the extent to which reasons should deal with the evidence. Her Honour noted (at [60]) that the test of adequacy is relative. The following principles articulated by McColl JA in Pollard at [56]-[66] are of relevance in the present case.
[114] First, the general proposition as stated by Samuels JA in Mifsud v Campbell at 728:
...[F]ailure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge ... may promote a sense of grievance in the adversary and create a litigant who is not only 'disappointed' but 'disturbed' - to use the words which appear in the New Zealand case of Connell v Auckland City Council(1977) 1 NZLR 630 at 634.
[115] Secondly, a judge should refer to evidence which is important or critical to the proper determination of the matter. Whilst it is unnecessary to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered, where such evidence is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: Beale v Government Insurance Office of New South Wales at 443 per Meagher JA.
[116] Thirdly, bald conclusionary statements should be eschewed. As stated by Ipp JA in Goodrich Aerospace Pty Ltd v Arsic[2006] NSWCA 187 ; (2006) 66 NSWLR 186 at [28]:
It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: 'I believe Mr X but not Mr Y and judgment follows accordingly'. That is not the way in which our legal system operates.
[117] Thus, it is essential to expose the reasoning on a point critical to the contest between the parties. This proposition reflects one of the three fundamental elements to a statement of reasons identified by Meagher JA in Beale v GIO at 443-444:
Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.
[118] Fourthly, where credit issues are involved it is necessary to explain why one witness's evidence is preferred to another's: Palmer v Clarke(1989) 19 NSWLR 158 at 170 per Kirby P (Samuels JA agreeing).
[119] Further, as noted by McColl JA in Pollard v RRR Corp Pty Ltd at [66]:
Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried. This is because, so far as the reasons reveal, no examination was made of why the evidence which was accepted was to be preferred to that of other witnesses: Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon[2005] HCA 57 ; (2005) 79 ALJR 1816 (at [130]-[131]) per Hayne J (with whom McHugh J (at [26]) and Gummow J (at [27]) agreed)); see also Najdovski v Crnojlovic[2008] NSWCA 175 (at [21]) per Basten JA (Allsop P and Windeyer J agreeing).
Those statements of principle establish that context is critical in the assessment of the adequacy of a judicial officer's reasons.
The present case involved a simple factual dispute which turned entirely upon the resolution of two diametrically opposed accounts of the accident. The plaintiff's witnesses (the plaintiff and his wife) stated that the truck veered into their lane. The defendants' evidence (from the driver and the witness) was that the truck did not change lanes, had no reason to change lanes and that the Mercedes crossed the line into the truck's lane. An aspect of the defendants' case was the fact that the trailer was articulated, leaving open the possibility that Dr Tan simply did not see it before he started to pull in behind the truck. Which account was preferred ultimately came down to a question of credibility. That was the key issue. The credibility of the witness was particularly important because he was the only witness who was not in one of the vehicles involved in the accident and was therefore in a position to observe what happened from behind.
It is therefore understandable, in the circumstances of this particular case, that the Magistrate's reasons would focus upon the credibility of the witness. His Honour stated that he preferred the witness's account and gave his reasons for doing so, which were essentially that he was an independent witness who gave a believable account of events. Expressing with precision why one witness's evidence is preferred over that of another can be a difficult task. In my view the Magistrate explained his reasoning adequately, although somewhat informally, when he stated that "[the witness] was pretty believable and he was independent" (T151).
In his reasons the Magistrate also referred to another factor that led him to find for the defendants, namely the damage to the mud flap and the front left corner of the trailer. The plaintiff submitted that this damage was equally consistent with either account of the accident. However, the fact that the actual damage to the defendants' vehicle was concentrated on the one small area of the trailer, in the context of the contention that the plaintiff inadvertently hit the trailer because had not seen it, was more consistent with the defendants' version of events. If, as the plaintiff contended, the Mercedes had indeed been scraped along the entire length of the truck, one would have expected the damage to the truck to be more evenly distributed.
The reasons also dealt with two of the plaintiff's key arguments: the scraping on the truck's passenger side tyres and the implausibility of a driver veering into a truck. The learned Magistrate explained why he rejected those submissions, further elucidating his reasoning process.
Furthermore, his Honour's reasons must be assessed in light of the fact that they were given ex tempore. In those circumstances it is unsurprising that they were brief. The judgment in effect incorporated the content of the exchanges just had. For example, his Honour had explained (at T142) why he was not convinced by the plaintiff's argument that the witness did not have time to catch up to the defendants' vehicle and see its involvement in the accident. I am satisfied that the reasons were adequate in all the circumstances.
For those reasons, the appeal must be dismissed.
Orders:
(1) That the appeal be dismissed.
(2) That the plaintiff pay the defendants' costs.
Decision last updated: 07 April 2014
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