TIO v Costa - [2001] NTCA 5

TIO v Costa & Anor [2001] NTCA 5
PARTIES:TERRITORY INSURANCE OFFICE

v
CARLO COSTA by his next friend Massimo Costa and
GIANFRANCO SORTINO

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:AP19 of 2000 (9808742)
DELIVERED:  13 August 2001
HEARING DATES:  12-16 March 2001
JUDGMENT OF:  MARTIN CJ, ANGEL and THOMAS JJ
CATCHWORDS:

APPEAL AGAINST FINDINGS MADE BY TRIAL JUDGE
Decision by trial judge based on credibility of witness – role of appellate court – power to interfere with trial judge’s finding
Motor Accidents (Compensation) Act 1979 (NT), s 6(1)
Devries v Australian National Railways Commission (1993) 177 CLR 472; Coghlan v Cumberland [1898] 1 Ch 704; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306; Effem Foods Pty Ltd (t/a Uncle Ben’s of Australia) v Lake Cumberline Pty Ltd (1999) 161 ALR 599; Walsh v Law Society (NSW) (1999) 198 CLR 73; Lexcray v Northern Territory of Australia [2001] NTCA 1; Rosenberg v Percival (2001) 178 ALR 577, referred to
Application of the rules in Jones v Dunkel and Browne v Dunn
Jones v Dunkel (1959) 101 CLR 298; RPS v R (2000) 168 ALR 729, referred to
Fabre v Arenales (1992) 27 NSWLR 437, cited
APPEAL AGAINST ORDERS FOR COSTS
Discretion of trial judge as to costs – general principles to be applied – conduct of parties – unusual circumstances of case – no error in exercise of discretion
Motor Accidents (Compensation) Act 1979 (NT); Supreme Court Rules 1987 (NT), r 63.03
REPRESENTATION:
Counsel:
Appellant:F Douglas QC and I Nosworthy
First Respondent:  S Walsh QC and P Barr
Second Respondent:  S Southwood QC
Solicitors:
Appellant:Ward Keller
First Respondent:  Hunt & Hunt
Second Respondent:  Priestleys
Judgment category classification:        B
Judgment ID Number:  tho200110
Number of pages:  68

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
TIO v Costa & Anor [2001] NTCA 5
No. AP19 of 2000 (9808742)

BETWEEN:
TERRITORY INSURANCE OFFICE

Appellant
AND:
CARLO COSTA by his next friend
MASSIMO COSTA

First Respondent
AND:
GIANFRANCO SORTINO

Second Respondent

CORAM: MARTIN CJ, ANGEL and THOMAS JJ
REASONS FOR JUDGMENT
(Delivered 13 August 2001)
MARTIN CJ

I have had the benefit of draft reasons prepared by her Honour Justice Thomas. I agree with the orders which she proposes, but wish to add some remarks of my own.

For ease of reference I will refer to the parties in this appeal as “the third party” (appellant), “plaintiff” (the first respondent) and “the defendant” (the second respondent).
The parties were brought together in the litigation when the plaintiff was injured in a motor vehicle accident on the Arnhem Highway in the Northern Territory on 14 August 1997. It is undoubted that the plaintiff was travelling in the motor vehicle, but this appeal is against the learned trial Judge’s finding that he was a passenger, whereas the third party seeks to establish that he was the driver. The defendant admits that he was the driver by his Defence and in answers to interrogatories. The third party was brought into the action by the defendant seeking an indemnity in relation to damages which may be awarded in favour of the plaintiff against the defendant (s 6(1) Motor Accidents (Compensation) Act 1979 (NT)).
A brief background of the events leading up to the accident are set out by Justice Thomas.
His Honour’s finding that the defendant was the driver and the plaintiff the passenger was made upon consideration of the evidence of a number of witnesses. As will be seen from the grounds of appeal, the bulk of them are directed to allegations that his Honour made erroneous assessments of the credibility of witnesses and thus fell into error in his findings of fact.
I take the law in relation to an appeal against finding of fact based on credibility of a witness to be as reiterated by Brennan, Gaudron and McHugh JJ in Devries v Australian National Railway Commission (1993) 177 CLR 472 at 479:
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. (See Brunskill (1985) 59 ALJR 842; 62 ALR 53; Jones v Hyde (1989) 63 ALJR 349; 85 ALR 23; Abalos v Australian Postal Commission (1990) 171 CLR 167). If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his or her advantage” (SS Hontestroom v SS Sagaporack [1927] AC 37 at p 47) or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable” (Brunskill(1985) 59 ALJR at p 844; 62 ALR at p 57)”
At p 480 of the report in that case Deane and Dawson JJ took the view that the appellate duty cannot be explained, “in any short exhaustive formula” and referred to what fell from Lindley MR, Rigby and Collins LJJ in Coghlan v Cumberland (1898) 1 Ch 704. It seems to me that their Honours were there referring to a challenge to findings of fact based upon a trial Judge’s observation of the demeanour of witnesses, that is, their outward behaviour. I think there is a difference between “credibility” and “demeanour”, although the latter may be a factor which goes to make up the former. The assessment of the credibility of a witness may or may not be influenced by his or her demeanour. In ordinary parlance credibility goes to the believability of a witness, whether he or she is worthy of belief, convincing. Assessment of credibility may not alone depend upon the evidence given of the witness, but may take into account other evidence in the case.
In this case the learned trial Judge undertook a careful appraisal of the evidence given by all witnesses and the extent to which their respective evidence was worthy of belief. His Honour looked at the whole of the evidence as well as the individual contributions and made his assessment of each witness in that light. The evidence of Mr Testa became the ultimate focus of attention before his Honour and on appeal. His Honour did not treat it in isolation. As is apparent from his reasons, he scrutinized all the evidence, made his findings of fact, and drew such inferences as he felt could safely be drawn and rejected those which in his opinion he could not.
It will be noted from the outline of the evidence given by each witness contained in her Honour’s reasons that there is no significant difference in the evidence of Messrs Pepe, Iacorossi and Testa (who I will call the “eye witnesses”) as to who was driving at the time of the accident. At the scene, Pepe and Iacorossi told others that the plaintiff was the driver, but they controverted that later in the day at the hospital when they said that the defendant was the driver. His Honour was not called upon to make a choice as to which of the eye witnesses he would believe, but rather whether all were to be believed.
The plaintiff, although identifying himself as the driver at the scene, and affirming to Dr Moore at the hospital that that was the case, was rendered incapable of being of any further assistance to anybody thereafter because of an intervening medical condition.
The issue which faced his Honour was whether he accepted the witnesses on their oath in court that what they said at the scene of the accident was a lie or whether they were lying in court and what they said at the scene of the accident was the truth.
In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 Gaudron, Gummow and Hayne JJ repeated with apparent approval what had been said by Brennan, Gaudron and McHugh JJ in Devries. Kirby J at p 332 concluded that full reasons “must be given by the appellate court to demonstrate that, notwithstanding the credibility finding, the result of the trial is “palpably, glaringly or compellingly, erroneous when viewed in the light of all of the evidence”. In a footnote to his decision in Effem Foods v Lake Cumbeline (1999) 161 ALR 599 at p 603 his Honour referred to the approach to be taken by an appellate court when reviewing a primary judge’s finding of fact by reference to the State Rail Authority case. Reference might also be made to the observations of McHugh, Kirby and Callinan JJ in Walsh v The Law Society of New South Wales (1999) 198 CLR 73 at p 92.
In this Court in Lexcray Pty Ltd v The Northern Territory of Australia, unreported, but delivered on 18 January 2001, reference was made to the binding authority of what was said by the majority in Devries and Walsh v The Law Society.
His Honour had ample opportunity to observe the demeanour and assess the credibility of the eye witnesses. Mr Testa’s evidence, given with the aid of an interpreter, extended over some four days including cross-examination which lasted more than two days. Mr Iacorossi was in the witness box for two days, mostly in cross-examination, which lasted seven hours. Mr Pepe gave his evidence over three days, again, mostly under cross-examination.
The care which his Honour took in the assessment of the credibility of those in the best position to know who was driving the motor vehicle at the time of the accident can be gleaned from the following observations. At par 46:
(a)“I accept Mr Testa as a witness of truth. He gave his evidence in a clear and forthright manner. He was not shaken in cross-examination. He was a careful witness and distinguished between those matters of which he was certain and those in relation to which he was in doubt. He was very firm in his statement that the defendant was driving the vehicle at the relevant time. Although some matters had faded from his memory and there were some inaccuracies in his recollection, he was doing his best to tell the truth”.
The appellant recognises that his Honour’s acceptance of the evidence of Mr Testa that he refused to be involved in the conspiracy at the scene and did not there identify the plaintiff as the driver, nor became aware of the plans to identify him, is critical to the outcome of these proceedings.
(b)      As to Mr Iacorossi, par 66
“To some extent Mr Iacorossi sought to justify and minimise his involvement (in the identification of the plaintiff as the driver at the scene). However, I am satisfied that he was truthful and a genuinely reliable witness. As with other witnesses he had difficulty with the timing and sequence of some events. He was doing his best to assist when pressed on these matters. I do not accept the submission of the third party that he was a dishonest witness. I accept his evidence on the significant issues and, in particular, that the defendant was in the driver’s seat and the plaintiff was in the front passenger seat when he approached the vehicle immediately after the accident”.
(c)     As to Luigi Pepe, par 104:
“Mr Pepe was active in promoting the false story at the scene and he, along with the defendant and the plaintiff, identified the plaintiff as the driver. Notwithstanding that attempt to minimise his involvement and to deny knowledge of the logical consequences of a deception, I accept his evidence that the defendant was in fact the driver of the vehicle. I accept that the decision to identify the plaintiff as the driver was “improvised at the moment” as he claims. It was not thought through. It was motivated by a desire to protect the defendant. … Neither that version of events nor the later version involved a consideration that the plaintiff or anyone else may have a claim for damages for compensation for personal injuries arising out of the accident.”
And later at par 167:
“I am not satisfied that Mr Pepe or the defendant was at any relevant time aware of the ramifications for a personal injuries claim of the plaintiff being identified as the driver of the vehicle. Whilst he had knowledge that personal accident insurance had not been taken out on behalf of the drivers of the vehicles and that that avenue of cover was not available there was no suggestion that Mr Pepe, or any other relevant person, was aware that the driver would not be covered by some other insurance (for example, travel insurance as raised by Mrs Nicolosi) or a statutory motor vehicle compensation scheme. On the other hand there was awareness that the defendant may have a problem in relation to damage to the vehicle arising out of the fact that he was an authorised driver. There was no dilemma of the kind suggested”
(d)     As to the witnesses at the scene generally, at par 171:
“I have accepted the accounts of those witnesses who gave direct evidence of what occurred at the time of the accident and at the hospital.”
As to witnesses who came upon the scene after the accident:
(a)His Honour held that under cross-examination:
“it emerged that Mr Watley was not as clear in his recollection as the statement may have indicated … at the completion of his evidence it was unclear just who had identified the driver to him.”
His Honour went on to say that where there was conflict he accepted the evidence of Mr Roberts in preference to that of Mr Watley.
(b)His Honour accepted the evidence of Mr Hoschke and Ms Sinclair, ambulance officers, who both said that they thought Mr Testa could have overheard a conversation in which the plaintiff was identified as the driver, but his Honour correctly held that what those witnesses thought did not prove the fact. His Honour accepted Mr Testa’s evidence that he was unaware of what others thought he must have heard.
As to witness to the events after the plaintiff collapsed at the hospital:
(a)Dr Gagliardo, a doctor at the hospital to which the plaintiff was admitted and who had a conversation with the defendant in which the defendant told him that he had been the driver:
“He had no reason to mislead the court and there was no suggestion that he endeavoured to do so”.
At par 114:
“The submission of the third party was that his evidence was contaminated and largely reconstructed. I accept that some of it was reconstructed. For example his evidence as to the timing of his shift on that day or night was reconstructed, as was his evidence as to the time at which the plaintiff collapsed.”
At par 115:
“There were other things that he had wrong. This is as one would expect of a witness giving evidence a long time after the event. Notwithstanding those errors, he was quite firm that the important events of which he gave evidence occurred as he described them and, in particular, that the defendant approached him as he left the resuscitation area and told him that he had given a false statement declaring that the plaintiff was the driver when the true position was that he had been the driver. I accept that in relation to that matter the events occurred as described by Dr Gagliardo.”
(b)Regarding differences between the evidence given by Mr Pepe, Mr Iacorossi and Dr Gagliardo as to the decision of the defendant to admit that he was a driver, his Honour said at par 116:
“These (different) claims are not inconsistent with each other. They reflect the fact that different witnesses were asked to recount their involvement in the process and had done so. The acceptance of the evidence of one does not exclude an acceptance of the evidence of the others”.
(c)The decision made at the hospital which led to the defendant saying that he was the driver was made, so his Honour held at par 117, at the hospital and in circumstances where the condition of the plaintiff had suddenly deteriorated:
“It was not made in the context of a possible claim for compensation or damages by the plaintiff. Indeed it was made at a time when at least some of the group thought the plaintiff might die. The timing of this decision is not consistent with the suggestion made by the third party that a false story was created in order to enable the plaintiff, or possibly his dependents, to make a claim against an insurer. That was not a factor in the decision”.
(d)It was submitted by the third party that Mr Randazzo had somehow placed himself in a position of conflict. At par 132 his Honour rejected that submission. He then gave detailed reasons, and at the following paragraph rejected the submission that Mr Randazzo was in the plaintiff’s camp, adding that he:
“did no more than assist each party to the proceedings and also the various other Italian nationals affected by the proceedings in a manner which may have been expected of a person in his position.”
(e)His Honour observed at par 134 that at the commencement of his evidence Mr Randazzo corrected assertions made in his written statement, but his Honour held that:
“In the circumstances it is not a matter that causes me to doubt the reliability of Mr Randazzo in relation to other matters. Contrary to the submission of the third party, I did not find Mr Randazzo to be “defensive”. His evidence was given in a manner designed to assist the court. He was careful in his responses to questions and, when invited to do so, endeavoured to reconstruct his thought processes at the relevant time”
And at par 136:
“I accept the evidence of Mr Randazzo. Whilst there were some errors in his evidence I am satisfied that he was a reliable witness on the major issues”.
(f)At par 146 his Honour said that it was not surprising that Mrs Nicolosi was vague about the timing of events and that she resorted to reconstruction “as she frankly acknowledged”. His Honour preferred the evidence of Mr Iacorossi supported as it was by Mr Pepe, that he met and conversed with Mrs Nicolosi at the hospital on the night of the accident.
I now turn to his Honour’s treatment of what could be regarded as objective evidence:
Messrs Griffiths and Hall
(c)His Honour thought that Mr Griffiths' error as to the direction of the roll of the motor vehicle was a significant error which gave rise to concern as to the reliability of the conclusions drawn by Mr Griffith in other areas.
(d)His Honour found that both experts endeavoured to assist the court, but that their evidence was not of a great deal of assistance in determining who was the driver and who was the front seat passenger (par 154). As to the different views taken by the experts regarding the pattern of injuries on each of the plaintiff and the defendant, his Honour agreed that they tended to support the view that the defendant was the driver and plaintiff the passenger, but that they “are indications only and far from conclusive”.
(e)The debate between the experts as to the relative loading on the seatbelts and conclusions which could be drawn from that, was not found to be helpful because of the many variables applicable to the situation. The finding of blood on the doorframe on the driver’s side, his Honour thought, was of little assistance. He concluded that there were difficulties with the theories propounded by each of the experts and that the evidence was “of limited assistance in determining who occupied which seat in the front compartment of the accident vehicle”. His Honour has not expressed a view as to whether that limited assistance pointed in one direction or the other.
Having read the experts reports and their oral evidence, I am not prepared to reject his Honour’s assessment of the value of their respective opinions in deciding the essential question in the case. The appellant does not contend otherwise.
Dr Moore
Dr Moore gave his evidence via video link from South Australia. He had sent a document headed “Statement of Dr Michael Moore” to the solicitors for Territory Insurance Office. It was agreed between those solicitors and the solicitors for the plaintiff that it could be tendered as his evidence-in-chief and that Dr Moore could have regard to pages extracted from Mr Costa’s Royal Darwin Hospital medical records attached to the statement. The agreement proceeds: “The parties further agree that the documents speak for themselves”. Presumably the word “documents” includes the statement and the attachments.

The statement supplied Dr Moore’s qualifications as being MB.BS Adelaide University in 1985, Bachelor of Medical Science (Honours) Adelaide University 1984, Fellow of the Australian College of Rural and Remote Medicine October 1999. At the time of the making of the statement the doctor was a medical practitioner working in a country area in South Australia, and prior to that he had worked as Registrar in emergency medicine at a number of large hospitals, including Flinders Medical Centre in Adelaide and periods of time working at the Royal Darwin Hospital in the Emergency Department, the Anaesthetic Department and on the Air Med Retrieval Service.
The doctor believed he understood the importance of the history and accurate documentation of injuries received in patients brought to Emergency Departments following major trauma. He said he was the Emergency Department Registrar at the Royal Darwin Hospital on 14 August 1997 when he treated the plaintiff. Referring to the diagrams attached, the statement proceeded that they showed that the plaintiff had:
a scalp laceration;
left sided neck pain without visible injury;
grazes over both knees;
a seat belt graze at the left costal margin.
(In that regard the diagram attached to the medical records showed the shaded area against which the doctor had written “s/b graze”).
Dr Moore’s statement said that the history he obtained from the plaintiff was that he was the driver and he concluded his report: “In my opinion the seat belt graze I observed, was entirely consistent with Mr Costa’s statement to me that he was driving the vehicle at the time of the rollover”. An observation such as that does not rule out other hypothesis as to the possible origin of the graze.
So much was apparently obvious to counsel for the third party. He firstly had the doctor identify his statement and then asked: “Now Dr Moore, have you observed seat belt injuries on many occasions?” Counsel for the plaintiff objected. The report was then tendered without objection (Exhibit TP20). The objection was that the agreement between the parties was such that the statement was never intended to be treated as that of an expert witness and the question sought to be raised with the doctor was presumably going to establish some expertise, a matter not addressed in the statement. The expression of opinion to which reference has been made was said by counsel for the plaintiff as being not in any sense an expert opinion, but just “a human conclusion, a logical conclusion.” It was conceded by counsel for the third party that the qualifications set out in the statement “may or may not qualify him to express an expert opinion in this regard”.
It was intended to lead from the doctor evidence as to his observation of seat belt injuries on occasions at the Flinders Medical Centre, Royal Darwin Hospital and Air Med Retrieval. No statement containing that proposed evidence had been provided to those representing the plaintiff. It was also proposed to lead evidence as to how the doctor knew that the injuries which he had observed were seat belt injuries. In reply to his Honour it was suggested by counsel for the third party that the doctor had had on the job training, and when asked by his Honour where that had come from, counsel indicated he had no further submissions. His Honour declined to permit the issue to be pursued on the basis that if it was intended to put forward the doctor’s observations as expert opinion, then his qualifications to express the opinion should have been provided in advance.
On two occasions in the course of debate with counsel for the third party his Honour indicated that the graze which the doctor had described as a seat belt graze could be described by the doctor. He was not invited to do so.
His Honour had also rejected an attempt by the third party to introduce, through Dr Moore, a photograph of a deceased woman upon whose body it was said were seatbelt injuries occasioned in a motor vehicle accident with a view to comparing parts of the depiction of those injuries with those seen on the plaintiff. His Honour rejected the proposed tender which counsel for the third party said might be of assistance as demonstrating what a seat belt graze looked like. It was also intended to support the evidence of the expert to be called by the third party, Mr Griffiths, going to the position of Mr Costa in the car, but it had not been put in cross-examination of the plaintiff’s expert, Mr Hall. If it was of any probative value, said his Honour, it ought to have been put to Mr Hall, in fairness. If it had no probative value it would not be received. On that basis that tender was rejected.
In cross-examination the doctor confirmed that he had not made any notation of any marking on the right side of the plaintiff’s upper chest. He conceded that he did not know the dynamics of the accident and the various forces exerted on his body in it, and that he did not know whether there was any contact at the left costal area with any part of the interior of the vehicle apart from a seat belt. The question was then put “Of course but for the history that Mr Costa gave you, might it also be consistent with him being seated in the right rear of the car, mightn’t it?” The answer was not completed before an objection was raised and debated, after which the following question was put: “If you had no history about who was driving, then what you observed was consistent with Mr Costa being seated elsewhere in the vehicle” and answered “That’s correct”, “And without knowing the dynamics of the accident and precisely what happened to Costa’s body, you can’t say where he was seated apart from the fact that he told you something, isn’t that so?” He answered “That’s correct”.
In re-examination reference was made back to the interrupted answer to the question about the graze being consistent with the plaintiff being seated in the right rear of the car, and the doctor replied that he was going to say that the seat belt graze that he observed could be consistent with that proposition. “That’s possible”. I do not consider that that response detracted from the more general concession made earlier.
Evidence was also called in the third party’s case of observations of the plaintiff made by nurses at or about the time of the submission to the hospital. In my opinion that evidence went no further than that of Dr Moore. At most, Sister Brittin saw the injury described by Dr Moore as “s/b graze” and understood it was a reference to a seat belt graze and considered that that description was not inconsistent with her observation of it. She was not shown to have any relevant expertise.
In the light of all of the evidence including that of Mr Testa and the others travelling in the group, his Honour was entitled to reject the evidence of Dr Moore and the nurses that the graze was a seat belt graze and that it demonstrated that Mr Costa was the driver.
Breach of the rule in Browne v Dunn
This argument was not plainly raised in the grounds of appeal, but was canvassed in the course of submissions.
Dr Moore was not cross-examined by counsel for the plaintiff in regard to his entry in the hospital notes of “seat belt graze”. But prior to the doctor giving his evidence Mr Hall had given evidence that he did not accept that the graze so described by the doctor was caused by a seat belt, but said that it could have been caused by the impact of the plaintiff’s body on the interior left hand side of the motor vehicle. Mr Hall’s report had been provided to the solicitors for the third party prior to trial. They had commissioned their own expert’s report from Mr Griffith which proceeded upon the basis that the doctor had correctly identified and recorded what he had seen.
There was no evidence before his Honour based upon the doctor’s expertise or his description of the graze which incontrovertibly led to the conclusion that the doctor’s expression was a reliable assessment of the cause of the graze. In my opinion, notice had been clearly given by the plaintiff of the nature of the case on which it was proposed to rely in contradiction of the evidence of Dr Moore about that graze. There was no unfairness to Dr Moore in the plaintiff’s counsel failing to afford him the opportunity of making any explanation about the description he gave. The third party called Dr Moore and was aware of the dispute. It attempted, unsuccessfully, to supplement the reports previously provided to the plaintiff to qualify the doctor as an expert and to introduce into evidence material descriptive of a seat belt graze. They were unsuccessful in that, but it cannot be suggested that they were not aware of the plaintiff’s intention to put in issue the doctor’s description of the graze. The third party attempted to meet the attack which was to be made on the doctor’s description of what he observed by introducing further evidence, but his Honour ruled it inadmissible. Had the preparations for trial been undertaken in accordance with the directions given by his Honour, the opportunity to deal with the challenge to the doctor’s observations would have been available.
The absence of cross-examination of the nurses as to the graze seen by them is similarly unobjectionable.
Jones v Dunkel
The witnesses to the accident, in particular the occupants of the motor vehicle, with the exception of the plaintiff, were all potentially able to give evidence as to the identity of the driver. The defendant, by his defence admitted being the driver and had sworn an answer to an interrogatory to that effect. There was no need for the plaintiff to call the defendant on that score. His solicitors had been funded by the third party for the period from April 1998 to February 1999. Although admitting he was the driver, he denied negligence and had set up a case of contributory negligence against the plaintiff. He could not be regarded as being in the plaintiff’s camp in those respects. The third party had obtained at least one statement from him.
The rule can be applied where “the missing witness would be expected to be called by one party rather than another” per Glass JA in Payne v Parker [1976] 1 NSWLR 191 at 201-2. That is not this case.
There was no reason to believe that Ms Nardi would be expected to be called by one party rather than another. The third party had interviewed her in Italy well before the trial.
The rule applies to both parties:
“When both sides fail to call available evidence competing inferences arise and it will then be for the tribunal of fact to consider the evidence which is before it, … in the light of such inferences”.
Brandi v Mingot (1976) 12 ALR 551 at 560 (High Court).
His Honour was right in refusing to draw any inference adverse to the plaintiff arising from the absence of other possible witnesses to the accident.
Other grounds of appeal
There are a couple of relatively minor matters raised in the notice of appeal which should also be mentioned. Ground 4 and 5 correctly point to an error made by his Honour in respect of the period during which the third party paid the defendant’s legal fees, but the alleged errors arising as a consequence of that mistake, are not made out.
At 15.2 it is suggested that his Honour erred in accepting the evidence of Mr Iacorossi as particularised. At par 66 of his judgment, his Honour said that to some extent that witness sought to justify and minimise his involvement, but he was satisfied that he was a truthful and generally reliable witness. He does not say that he accepted everything that witness said. His Honour especially held that Mr Iacorossi was not a dishonest witness, meaning that he was not dishonest in the evidence that he gave and his Honour went on to say that he accepted his evidence on significant issues, and in particular that the defendant was in the driver’s seat and the plaintiff was in the front passenger seat when he approached the vehicle immediately after the accident.
Similarly, at par 62 of the grounds of appeal it is suggested that his Honour concluded that the position of Iacorossi was the same as Testa. In par 67 his Honour said: “The observations made in relation to Mr Testa at par 47 above have similar application to Mr Iacorossi.” Looking at par 47, his Honour there held that it was most unlikely that Mr Testa was involved in the conspiracy of the kind alleged and he went on to demonstrate that there was no special bond created between Mr Testa, the plaintiff and defendant such as might lead to an inference that he would fall in with the deception. I take his Honour’s cross reference to par 47 in par 67 to go no further than a reference to the relationship between the various people. It is plain from the preceding paragraphs, in which his Honour considered the evidence of Mr Iacorossi, that he found that he had been involved in the deception. His Honour held that Mr Testa was not.
Many of the appellant’s submissions went to issues which do not lie at the heart of the case, but are advanced in an endeavour to demonstrate that his Honour’s assessment of credibility was in error. In my view, none of the inconsistencies in the evidence, especially in relation to the events after the plaintiff collapsed, served to overcome his Honour’s acceptance of the eye witnesses, Messrs Testa, Pepe and Iacorossi, that the plaintiff was a passenger and Mr Sortino the driver at the time of the accident.
No error of principle has been identified and no mistake or misinterpretation about relevant facts has been demonstrated. It has not been shown that the learned trial Judge failed to use or misused his advantage or has acted on the evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.
I agree for the reasons given by Justice Thomas that the appeal against the order for costs made by the learned trial Judge should also be dismissed.
ANGEL J
I agree that the appeal should be dismissed and with the reasons of Thomas J. The appellant faced the Herculean task of establishing that the witness Testa was a dishonest witness, and this in the face of a clear finding by the learned trial judge that Testa was a truthful and credible witness. On consideration of all the evidence there is no warrant for this Court differing from the conclusion of the learned trial judge.
With respect to the appeal on the question of costs I agree with Thomas J and have nothing to add.
THOMAS J

The appellant in these proceedings appeals from a finding made by his Honour the learned trial judge that the second respondent, the defendant Sortino, was the driver of a motor vehicle involved in a motor vehicle accident on 14 August 1997.

It is the contention of the appellant that the learned trial judge ought to have found that the first respondent, the plaintiff Costa, was the driver of the vehicle at the time of the accident.
The brief background to the events leading up to the time of the motor vehicle accident are that Costa and Sortino were two members of a group of Italian tourists who arrived in Darwin on 13 August 1997. The leader of the group was one Luigi Pepe.
On the date of their arrival in Darwin, Mr Pepe and others in the group hired four vehicles and arranged for additional authorised drivers, not including Sortino.
On the morning of 14 August, the group left their accommodation intending to drive to Kakadu National Park. When they left Costa was the driver of one of the vehicles. In this vehicle Sortino was in the front passenger seat and the two passengers in the rear were Ettore Testa and his wife Maura Nardi.
The group stopped at Litchfield National Park and then resumed their journey. The vehicles were in convoy. Costa and Sortino were travelling in the second vehicle in this convoy. There is evidence that when the vehicles left Litchfield National Park Sortino was the driver. The vehicle immediately behind was being driven by Cristoforo Iacorossi. The first vehicle in the convoy was being driven by Mr Pepe.
The second vehicle was involved in a rollover accident just east of the Corroboree Park Roadhouse. There is evidence from Mr Iacorossi that when he arrived on the scene of the accident he saw Sortino in the driver’s seat, Costa in the front passenger’s seat, both persons having their seat belts fastened.
A number of persons including police officers and ambulance personnel attended the accident scene.
There is evidence which will be detailed at a later time that at the scene of the accident Costa told a number of persons who arrived on the scene that he had been the driver of the vehicle at the time of the accident. There is further evidence that there was an arrangement hastily concocted between some members of the group to deny - falsely - that the driver of the vehicle at the time of the accident was Sortino because he was not an authorised driver and to assert - falsely - that Costa was driving because he did have authorisation to drive.
The four persons in the accident vehicle were taken by ambulance to Royal Darwin Hospital. There is evidence that at the hospital Costa unexpectedly collapsed as a consequence of a serious injury. There is evidence that Sortino then admitted to being the driver of the vehicle at the time the accident occurred.
The learned trial judge heard evidence over a period of some five weeks. This evidence included evidence from Mr Testa, a rear seat passenger in the accident vehicle. Evidence from other members of the tour group including the tour leader Mr Pepe and the driver of the vehicle immediately behind the accident vehicle, Mr Iacorossi. There was evidence from independent persons who arrived on the scene of the accident including police officers and ambulance personnel. Evidence was given by the medical staff at Royal Darwin Hospital, from other persons in attendance at the hospital and from expert witnesses. Costa did not give evidence; because of the grave injuries he received in the accident he is incapable of giving evidence. Sortino did not give evidence. No reason was given for why he did not give evidence. Answers to interrogatories in which Sortino admitted to being the driver were tendered in Costa’s case. He admitted to being the driver in his defence.
His Honour delivered very detailed reasons for judgment on 17 August 2000. His Honour concluded that Sortino was the driver at the time of the accident and entered judgment for Costa against Sortino for damages to be assessed. On 11 September 2000, his Honour delivered further Reasons for Judgment on the issue of costs.
The appellant lodged a notice of appeal against these findings. The grounds of appeal are as follows:
“Judgment of 17 August 2000
2.The Learned Trial Judge erred in finding that the Second Respondent (“the Defendant”) was the driver of the vehicle at the time of the accident (Reasons para [169]).
3.The Learned Trial Judge ought to have found that the First Respondent (‘the Plaintiff’) was the driver of the vehicle at the time of the accident.
4.The Learned Trial Judge erred in finding that the Appellant (‘the Third Party’) paid the legal fees of the Defendant for the period 27 April 1998 to 17 December 1999 (Reasons para [173]) and this error led to incorrect conclusions as to:
4.1in whose ‘camp’ the Defendant and the witnesses Ettore Testa (‘Testa’), Luigi Pepe (‘Pepe’), Cristoforo Iacorossi (‘Iacorossi’) and Carlo Randazzo (‘Randazzo’) were;
4.2the Jones v Dunkel (1959) 101 CLR 298 submissions made by the Third Party;
4.3the cooperation which the Learned Trial Judge found existed between witnesses called by the Plaintiff and the Third Party;
4.4.the level of cooperation between the Defendant and the Third Party;
4.5the significance of Randazzo’s ‘cooperation’ with the Third Party;
4.6the significance of the ‘cooperation’ of the Plaintiff’s witnesses with the investigators instructed by the Third Party.
5.The Learned Trial Judge should have found in this judgment that the Third Party paid the legal fees for the Defendant for the period 27 April 1998 to 17 February 1999, as he did find in his judgment dated 11 September 2000.
6.The Learned Trial Judge erred in his consideration of the significance of the Plaza Hotel meeting, and its significance in relation to his conclusions concerning the credibility of Testa.
7.The Learned Trial Judge erred in holding that Maura Nardi (‘Nardi’) was not in ‘either camp’ (Reasons para [174]).
8.The Learned Trial Judge ought to have –
8.1held that Nardi was ‘in the camp’ of the Plaintiff;
8.2held that her absence as a witness was not satisfactorily explained by the Plaintiff;
8.3inferred, in accordance with the rule in Jones v Dunkel, that her evidence would not have helped the Plaintiff on the issue of who was the driver of the vehicle at the relevant time;
8.4declined to deal with the question of Nardi’s absence and the Jones v Dunkel submission in connection therewith on the basis of intimations given by the Plaintiff’s Counsel when there was no satisfactory evidence before him to explain her absence.
9.The Learned Trial Judge erred in his analysis of the evidence of Testa against that of the independent witnesses at the scene of the accident given that:
9.1there was no adverse credibility finding in connection with the evidence of the said independent witnesses reasonably available to the Learned Trial Judge;
9.2the weight of the evidence of the said independent witnesses was inconsistent with Testa’s stated nescience in relation to the identification of the Plaintiff as the driver and the fact of communication to him and in his presence about the account to be given to authorities;
9.3Testa did not adequately explain the reason for the absence of his wife Nardi.
10.The Learned Trial Judge erred in accepting the evidence of Testa that the Defendant was the driver of the vehicle at the time of the accident (Reasons para [49]).
11.The Learned Trial Judge erred in rejecting the evidence of Chris Whatley (‘Whatley’) that Testa identified the Plaintiff as the driver of the vehicle (Reasons para [28]).
12.The Learned Trial Judge erred in not accepting that Whatley correctly identified Nardi as the female interpreter by reason of Whatley’s evidence that he recalled her by reason of the fact that she had wet herself.
13.The Learned Trial Judge’s finding that Testa was not aware that, after the accident, the Plaintiff was to be, and was, nominated as the driver of the vehicle was against the evidence and against the weight of the evidence (Reasons para [25] and [34]).
14.The Learned Trial Judge’s finding that Testa was not aware of conversations in which the Plaintiff was identified as the driver of the vehicle was against the evidence and against the weight of the evidence (Reasons paras [30] – [33] and [56]).
15.The Learned Trial Judge erred in accepting the evidence of Iacorossi that:
15.1the Defendant was in the driver’s seat and the Plaintiff was in the front passenger seat immediately after the accident (Reasons para [66]);
15.2he did not encourage the Defendant to participate in dishonesty but did not oppose him (Reasons para [66]) when the evidence in chief of Iacorossi (para [28] of exhibit P16]) was that he said to the Defendant that if he thought he needed to say that someone else was driving to avoid problems then he should go ahead.
16.The Learned Trial Judge erred in concluding that the position of Iacorossi was the same as Testa (Reasons para [67]), when in fact Iacorossi and Pepe acknowledged that they and others at the scene did participate in dishonesty.
17.The Learned Trial Judge erred in accepting the evidence of Pepe that:
17.1the decision to identify the Plaintiff as the driver was ‘improvised at the moment’ (Reasons para [104]);
17.2evaluation of the consequences did not involve planning (Reasons para [77]);
17.3but not thereafter finding that what Pepe claimed he had been told by Testa was inconsistent with a finding that Testa was credible (Reasons paras [79] and [80]).
18.The Learned Trial Judge erred:
18.1in finding (Reasons para [88] that the failure to explain why the Defendant did not sign the Territory Rent-A-Car claim form other than ‘it was not thought necessary’ was consistent with honesty on the part of the Defendant; and
18.2in failing to find that Pepe’s failure to explain the Defendant’s motivation in connection with declining to sign the Territory Rent-A-Car claim form was inconsistent with acceptance of Pepe as a witness of truth.
19.The Learned Trial Judge’s findings (Reasons para [103]) amounted to a rejection of Pepe’s testimony and should have led to his rejection of Pepe’s evidence overall.
20.The Learned Trial Judge erred in finding that some of the evidence of Dr Gagliardo (‘Gagliardo’) was reconstructed particularly as to timing, but nonetheless accepting the claimed timing of the Defendant’s confession (Reasons paras [114] and [115]).
21.The Learned Trial Judge erroneously concluded (Reasons para [116]) that the inconsistencies which he found existed between the evidence of Pepe, Iacorossi and Gagliardo (while not mentioning the same inconsistency with Mariella Nicolosi (‘Nicolosi’)) could be resolved by accepting the evidence of one, and finding that this did not exclude the acceptance of the evidence of the others.
22.The Learned Trial Judge erred in concluding that Randazzo cooperated with the Third Party by making himself available for interview (Reasons para [132]) when in fact the proper conclusion was that Randazzo was that Randazzo was attempting to assist the Plaintiff, not the Third Party.
23.The Learned Trial Judge erred in concluding that Randazzo’s change in statement (Reasons para [134]) followed a discussion with his wife, when it was likely that in truth the change followed him becoming aware of Nicolosi’s statement (Exhibit TP 43).
24.The Learned Trial Judge erred in refusing to permit the Third Party to:
24.1lead evidence of the expertise of Dr Michael Moore in relation to recognising seatbelt injuries;
24.2adduce a further Affidavit from Dr Michael Moore exhibiting a photograph of a person with a seatbelt injury (MFI TP 22);
24.3adduce a further Affidavit from Mr Michael Griffiths exhibiting the photograph of a person with a seatbelt injury (MFI TP 22).
25.The Learned Trial Judge erred in concluding that the injuries suffered by the Plaintiff and described by Dr Michael Moore as a seatbelt graze may equally have been caused by the Plaintiff being seated in the left front passenger seat and that area of his body coming into contact with the left door (Reasons para [160]).
27.The Learned Trial Judge erroneously failed to find that the Plaintiff suffered a ‘seatbelt graze at the left costal margin’ (Reasons para [160]).
26.The Learned Trial Judge erred in concluding that Pepe was not at any relevant time aware of the ramifications for a personal injuries claim of the Plaintiff being identified as the driver of the vehicle (Reasons para [167]).
Judgment dated 11 September 2000
28.The Learned Trial Judge erred in exercising his discretion on the question of costs by having regard to:
28.1whether or not the Defendant, Pepe and Iacorossi did ‘correct the story’, and whether they did so ‘at an early time in relation to these proceedings’ (Costs Reasons para [13]);
28.2whether or not it was put to the witnesses in cross examination that they failed to cooperate with the Third Party (Costs Reasons para [14]);
28.3whether or not the witnesses had cooperated with the Third Party (Costs Reasons para [14]).
29.The Learned Trial Judge erred in finding as a fact that there was nothing more that those who represented the Plaintiff could have done to lead the Third Party to accept the version of events put forward at trial, and that the same observation applied to the Defendant (Costs Reasons para [17]).
30.The Learned Trial Judge, in exercising his discretion on the question of costs, should have had regard to the conduct of the Plaintiff and the Defendant and their representatives and accomplices which created the position in which the Third Party found itself. (Costs Reasons para [17])
31.The Learned Trial Judge erred in failing to have regard to the fact that:
31.1the Defendant failed to appear at the trial;
31.2the Defendant had attended Darwin without communicating with the Third Party, approximately three weeks before the trial commenced;
as factors which should affect the exercise of his discretion on the question of costs.
32.The Learned Trial Judge erred in failing to consider:
32.1orders for costs on a different basis as between the Third Party and the Defendant on the one hand and the Plaintiff on the other;
32.2whether or not he should decline to grant the Plaintiff costs even if, in the exercise of his discretion, he did not consider it appropriate to award the Third Party costs against the Plaintiff;
32.3whether or not he should decline to grant the Defendant costs even if, in the exercise of his discretion, he did not consider it appropriate to award the Third Party Costs against the Defendant.”

The role of the appellate court and the power to interfere with the learned trial judge’s finding of fact have been discussed in a number of authorities to which this Court was referred. It is unnecessary to discuss the caselaw at any length. The principles were recently discussed by this Court in Lexcray Pty Ltd v Northern Territory of Australia [2001] NTCA 1.
In State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306, Kirby J embarked on a history of the Appellant Court’s role in the review of facts and stated at 323 par 74:
“… Appellate judges must necessarily perform their statutory function. They must rehear the matter and form their own conclusions on the evidence recorded at the trial. Rising to their duty, they must condescend to a re-examination of the facts, if their statutory charter so requires or permits. Yet that re-examination obliges appellate judges to take into account, and give full weight to, the advantages which the trial judge had and which, in the nature of their different functions and purpose, they may not have.”
and in Devries v Australian National Railways Commission (1993) 177 CLR 472 Deane and Dawson JJ said at 480 - 481:
“In a case where it appears that a challenged finding of fact has, to a significant extent, been based on the trial judge’s observation of the demeanour of the witnesses, the members of an appellate court are inevitably placed in a position of real disadvantage compared with the trial judge. Even in such a case, however, the ‘court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions’. The appellate duty in such a case cannot, in our view, be explained in any short exhaustive formula. It was correctly identified by Lindley M.R., Rigby and Collins L.JJ. in Coghlan v Cumberland in a passage which has been referred to with approval in many cases in this Court and ‘adopted as a governing authority’. Their Lordships said:
‘Even where, as in this case, the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the Court must reconsider the materials before the judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the Court comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the judge, the Court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions; and when the question arises which witness is to be believed rather than another, and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may show whether a statement is credible or not; and these circumstances may warrant the Court in differing from the judge, even on a question of fact turning on the credibility of witnesses whom the Court has not seen.’” (Footnotes excluded)
See, also, Rosenberg v Percival (2001) 178 ALR 577 at 585, 586, per McHugh J.
At the hearing of the appeal the grounds of appeal argued were essentially in four separate categories.
The first substantial challenge to the findings of the learned trial judge is his Honour’s finding that the witness, Mr Testa, was a truthful and credible witness and the learned trial judge’s acceptance of Mr Testa’s evidence when he identified Sortino as being the driver of the vehicle at the time of the accident. In addition to this finding the appellant challenged the finding of his Honour that Mr Testa had no knowledge that there was a conspiracy between certain members of the group to nominate Costa as being the driver for the purpose of defrauding the property damage insurer of the motor vehicle because Costa was an authorised driver and Sortino was not so authorised.
It is the appellant’s submission that the learned trial judge’s findings in respect of the evidence of Mr Testa are glaringly improbable and against the incontrovertible facts.
His Honour found that the group coordinator, Mr Pepe, had identified Sortino as being the driver because he had seen him enter the driver’s seat when they left their last stopping place before the accident and saw him occupy the driver’s seat when Mr Pepe looked in his rear view mirror. Reference was made by Mr Pepe to complaints of Sortino at their earlier stopping places in the day, that Costa was not a good driver.
Mr Pepe was driving the vehicle ahead of the accident vehicle. Mr Pepe had seen a cloud of dust and turned round to go back to the scene of the accident. Soon after his arrival at the scene Sortino told Mr Pepe that he had been the driver of the car at the time of the accident. Mr Pepe’s initial impression was that of the four persons who had been in the accident Mr Testa had the most serious problem because he had a “very strong pain in his leg”. His Honour found that a decision was made on the spur of the moment and, in circumstances described as chaotic, to nominate a person other than Sortino as the driver. This was because of the consequences in respect of the property insurance, if the driver at the time of the accident was unauthorised. Mr Pepe asked Mr Testa to admit to being the driver. Mr Testa reacted angrily saying he was in the back seat of the car and that was all he was prepared to say. At the request of Mr Pepe, Costa agreed to say that he was driving the car in order to avoid any problems with insurance. Mr Pepe had agreed with counsel that logically the group would have had to have a uniform story and, in particular it would be desirable for each of the people in the accident vehicle to nominate the same authorised driver. Mr Pepe had given further evidence that Mr Testa had said words to the effect do “whatever you like”.
Mr Pepe had followed the ambulances back to the hospital. Costa, shortly after being informed he could be discharged from hospital, unexpectedly collapsed and was admitted to intensive care. Following his collapse Sortino indicated he did not want to be responsible for lying in such a situation and that it would be better to tell the truth. Mr Pepe gave evidence that the group agreed, following the collapse of Costa, that the injuries to Costa were now more important than the damage to the vehicle and they should tell the truth as to who was driving. It was Mr Pepe’s evidence that he thought both Mr Testa and his wife were present and heard the discussion concerning Sortino’s admission that he was the driver of the vehicle, and that if they were not they must have been informed at a different time. Mr Iacorossi had given evidence that it was not possible for them not to know.
Subsequently Mr Pepe, Sortino and Mr Randazzo the incoming Consul for Italy, who had been contacted to assist them, attended Territory Rent-A-Car and completed the necessary documentation stating Sortino was the driver of the vehicle at the time of the accident. By this time Sortino had already informed Dr Ilio Gagliardo and Mrs Nicolosi, the Italian consul who attended at the hospital, that he was the driver at the time of the accident. Mr Randazzo did not ask Mr Testa or Ms Nardi whether they had made false statements concerning the identity of the driver at a meeting between them which his Honour found took place on 16 August 1997.
His Honour found Mr Testa to be a truthful and credible witness and accepted his evidence that he had a clear memory of Sortino being the driver on the occasion of the accident. Mr Testa gave evidence that Costa was a front seat passenger. Mr Pepe had asked him, in view of the fact that he was an authorised driver, to declare to the police that he was the driver of the vehicle. Mr Testa had angrily refused. He had also warned Mr Pepe against approaching Costa with such a request stating that he was not in “a condition to make such a decision”. Mr Testa denied he had said they could do whatever they liked but in fact had felt reassured at that time that Mr Pepe would tell the truth. Mr Testa says he did not hear anyone in the group tell anyone in authority that the plaintiff was the driver and that he himself was never asked about the identity of the driver.
It is Mr Pepe’s evidence that following their arrival at the hospital and following the collapse of Costa, there was talk within the group that the authorities be informed Sortino was the driver. This involved changing the previous story that Costa had been driving. It is Mr Pepe’s evidence that it was his belief Mr Testa was present and heard the decision to advise the authorities that Sortino was the driver. Mr Pepe had agreed it was most important the group and particularly the persons in the accident vehicle should know about the change to the version being given to the authorities. Mr Pepe gave evidence concerning the attendance at a legal aid booth in Casuarina prior to attending upon Territory Rent-A-Car with Mr Randazzo and Sortino to complete a claim form. Sortino, although present, did not sign the claim form. There was no explanation from Mr Pepe as to why.
Mr Iacorossi gave evidence that after the accident he saw Sortino was in the driver’s seat and wearing a seat belt. Costa was in the front passenger seat and wearing a seat belt. He observed Sortino get out of the driver’s door and informed him he then “got distracted because he was drinking water”. Costa agreed to say he was the driver because of the concern over the issue of insurance cover for the damaged vehicle if it were known Sortino was the driver. Mr Iacorossi assumed Mr Testa knew of the plan to have Costa say he was the driver. His Honour believed the evidence of Mr Testa who gave evidence that he was not aware of any such plan.
The appellant contrasts this with the evidence of a large number of independent witnesses whose evidence was not rejected by his Honour on the grounds of credibility or demeanour. I have summarised the evidence of these independent witnesses and his Honour’s findings as to their evidence as follows:
Christopher Norman Whatley, an officer with the Bush Fire Council, was the second of the independent witnesses to arrive on the scene shortly after Michelle Stacey. Mr Whatley gave evidence in chief adopting his statement (Exhibit P23). In this statement Mr Whatley said he had asked Mr Testa: “Who was driving the vehicle?” With the help of the female passenger Mr Testa had pointed to Costa who was within six feet of him. Mr Whatley was then cross examined at some length. A reading of his answers under cross examination (AB 1123 – 1136) and the subsequent re-examination made it obvious why his Honour did not accept the evidence of Mr Whatley that Mr Testa had identified Costa to him as the driver. Mr Whatley, under cross examination, demonstrated a poor memory of the event, he stated a number of times in answer to specific questions, that he could not be 100% sure of what he did and what he observed. An example are answers given in cross examination following his evidence that he had asked in English who was driving (AB at 1131 – 1132 ):
“And at that point, one of the persons groaned?---To the best of my knowledge I queried passenger X, who appeared to be the most injured, first and to the best of my knowledge he’s the person who groaned on, upon that questioning.
And then you repeated your question using some gestures; is that correct?---That’s correct. I gestured like that.
HIS HONOUR: Would you describe those for the transcript Mr Walsh?
MR WALSH: Yes.
I’m sorry, I wasn’t watching?---I gestured like that.
Witness indicates with one hand on either side of an imaginary steering wheel and moving backwards and forwards, Your Honour.
And then the lady who spoke reasonably good English spoke to somebody and then pointed; is that right?---I cannot recall 100% if the lady pointed or gestured or the other male passenger with the rib injury pointed or gestured.
And in all events you were relying upon the injured – sorry, the person who was – who spoke reasonably good English to speak to somebody who was on the ground in Italian; is that right?---That’s right. The – it appeared they conferred after I asked who was driving and used my gestures, and then I cannot recall if it was a definite point to passenger X that he was driving or a gesture that indicated to me.”
The general tenor and uncertainty with which Mr Whatley gave his evidence under cross examination, his general lack of clarity about who had identified the driver and his apparent error about who had been acting as interpreter, are all sound reasons why his Honour concluded in paragraph 28 of his reasons: “Although Mr Testa may have been in the area I am not prepared to accept that he made the identification originally claimed by Mr Whatley”. Counsel for the appellant submits that on analysis while Mr Whatley did express some uncertainties in cross examination, this was consistent with the normal reservation a cautious and truthful witness would express in giving evidence several years after the event in relation to a matter such as this. I do not accept this submission. Mr Whatley’s subsequent evidence that he identified Ms Nardi as the female interpreter because he recalled the fact that she wet herself is similarly tainted with the general uncertainties and contradiction in his evidence. In my opinion, an analysis of this evidence supports his Honour’s conclusions in respect of the evidence of Mr Whatley.
Mark Anthony Roberts gave evidence in chief which is contained in his statement (Exhibit P24). Mr Roberts arrived on the scene with Mr Whatley. Mr Roberts gave evidence that in a direct conversation with Costa, Costa identified himself as the driver. He said Mr Testa and Ms Nardi were within earshot but did not indicate otherwise. His Honour said in his reasons, that it did not follow that Mr Testa was listening to or was part of the conversation. His Honour accepted the evidence of Mr Roberts in preference to that of Mr Whatley. Counsel for the appellant submitted that the evidence of Mr Roberts supports the evidence of Mr Whatley. I agree that the evidence of Mr Roberts supports the evidence of Mr Whatley to some extent but it cannot make up for the deficiencies in Mr Whatley’s evidence and does not support the evidence of Mr Whatley on the important aspect of whether it was Mr Testa who identified the driver of the vehicle.
David Hoschke and Edeline Sinclair are two ambulance officers who arrived on the scene of the accident. They gave evidence that in direct conversation with Costa, Costa identified himself as the driver of the vehicle and gave an explanation of how the accident happened. His Honour noted that this information was consistent with Costa having agreed to being identified as the driver. Ms Sinclair had given evidence that she “would have thought that Mr Testa and Ms Nardi could also hear me but I do not know whether they were actually paying attention to the conversation”. His Honour reasoned that again this did not amount to evidence that Mr Testa in fact heard the conversation. This conclusion was open to his Honour on the evidence.
Constable Scott Williams arrived on the scene approximately one hour after the accident. Constable Williams gave evidence that Mr Pepe identified Costa to him as the driver. Costa and the other passengers in the accident vehicle were sitting or lying along side the vehicle and in close proximity so that they would have been able to hear his question. Constable Williams could not say if they understood his line of questioning. Constable Williams gave evidence that no one dissented when Costa identified himself as the driver. When preparing the police report Constable Williams had written down Costa’s name as the driver. Subsequently someone had changed the report by whiting out Costa’s name and substituting Sortino’s name.
Counsel for the appellant argued that this, together with the other evidence from independent witnesses who spoke to Costa and heard him identify himself as the driver, is strong circumstantial evidence that Mr Testa knew at the scene of the accident that Costa identified himself to the authorities as the driver.
On behalf of the appellant it was submitted that his Honour had chosen to accept the evidence of Mr Testa notwithstanding the evidence of independent witnesses who had clearly established that Mr Testa must have known about the plan for Costa to be named as the driver and that Costa had identified himself as the driver in the presence of Mr Testa. The evidence of these independent witnesses is supported by the evidence of Mr Pepe and Mr Iacorossi who both gave evidence to the effect that Mr Testa must have known of the plan to identify Costa as the driver. This is further supported in the appellant’s submissions by the physical evidence as to Mr Testa’s position next to the accident vehicle and in close proximity to Costa when Costa identified himself as the driver. Counsel for the appellant also refers to the improbability of the evidence given by Mr Testa that he was not told anything of the plan to nominate Costa as the driver prior to his leaving Australia on 17 August 1997. Counsel for the appellant refers to the evidence of the time Mr Testa spent in the company of Mr Pepe, Sortino, Mrs Nicolosi and Mr Randazzo after the accident and prior to his return to Italy.
In paragraph 26 of his Reasons for Judgment, his Honour makes reference to the evidence given by Mr Pepe that either he or Sortino told Mr Testa that the plaintiff was prepared to say he was driving. This evidence at its highest, demonstrated Mr Pepe is not certain whether he himself gave this information to Mr Testa. The court did not hear from Sortino. His Honour accepted the evidence of Mr Testa that he had heard nothing on the issue of who was driving the vehicle. This finding is not glaringly improbable or against the incontrovertible evidence. Nowhere on the evidence does a witness depose to personally conveying the information to Mr Testa that the first respondent had claimed to be driving. There was evidence from a number of witnesses that because Mr Testa was present he must have been aware. His Honour was perfectly entitled to reject these assumptions and to accept the evidence of Mr Testa that he had no knowledge that Costa had identified himself as the driver.
Mr Pepe gave evidence that he saw Sortino enter the vehicle on the driver’s side and saw Sortino occupy the driver’s seat when Mr Pepe looked in his rear vision mirror. Sortino asked Mr Pepe if the fact he was not an authorised driver would create a problem in relation to the damage to the car. A decision was made to nominate an authorised driver as the person who was driving the vehicle. As his Honour found (par 78) it was a decision made on the spur of the moment, in circumstances that were chaotic and “was a reaction rather than a considered decision”.
The appellant submitted that the evidence of Ms Sinclair had not been broken down in any way. Ms Sinclair gave evidence that in direct conversation Costa told her he was the driver. Ms Sinclair could not attest to the truth of that statement, only to the fact that this is what she was told by Costa. Her evidence is consistent with there having been a plan to nominate Costa as the driver. Counsel for the appellant argued that it is improbable that Costa would make up a story of his involvement at that time. Taking into account the context in which it was said, the evidence of Mr Pepe and Mr Iacorossi as to concerns about an unauthorised driver having driven the vehicle which was now damaged, then Costa’s statement that he was the driver, is not at all improbable.

Counsel for the appellant submitted that to accept the conspiracy theory would mean accepting that Costa, knowing he was ill, thought more of Sortino’s problems than his own injuries. However, there is no evidence Costa was aware of how serious his injuries were. In fact it was not till he was about to be discharged from hospital that he collapsed and the full seriousness of his injuries became apparent to all. The decision to nominate Costa was not one that had been thought through but rather an impulsive reaction in a stressful and chaotic situation.
Counsel for the appellant also referred to the evidence that Mr Testa and Sortino were together in the ambulance for over an hour as they travelled to Royal Darwin Hospital. It is the submission of counsel for the appellant that it is improbable that Mr Testa and Sortino would not have had a discussion about the conspiracy to say someone else was the driver and the circumstances of the accident. However, there is no evidence such discussion took place. There is evidence Mr Testa was in pain, angry, upset and concerned for his wife and rejected any suggestion that he be nominated as the driver. It is not improbable that he would not enter into discussions with Sortino about the incident.
Counsel for the appellant submitted that if the learned trial judge accepted the evidence of Mr Pepe and Mr Iacorossi as being reliable then he has accepted evidence of persons who have admitted to a dishonesty. It is submitted there was no basis for accepting Mr Pepe and Mr Iacorossi as reliable witnesses in some aspects yet rejecting their evidence that Mr Testa must have known of the conspiracy and accepting Mr Testa’s evidence on that aspect. Again there is nothing improbable in these findings. His Honour did not reject the evidence of Mr Pepe and Mr Iacorossi as untruthful or unreliable on the aspect of whether Mr Testa heard their discussions but rather their evidence on this point was based on an understandable but false assumption that because Mr Testa was in the vicinity he must have heard. There is nothing glaringly improbable about his Honour finding, nor does an analysis of the evidence support any other finding.
Counsel for the appellant cannot point to any prior association between Mr Testa and Sortino or Costa and could not point to any particular motive for Mr Testa to want to assist his fellow countryman. However, the appellant’s submission was to the effect that experience of human affairs is such that a person may see it as appropriate to lie to assist someone who has been gravely injured to ensure they receive compensation. This is particularly so, on the appellant’s argument, when it is perceived that there can be no harm in these circumstances. The appellant also pointed to the fact that the learned trial judge was prepared to accept the evidence of Mr Pepe and Mr Iacorossi notwithstanding their willing participation in a scheme to defraud the property damage insurer. His Honour as the trier of fact was quite entitled to accept their evidence on one aspect while acknowledging they had been dishonest in another aspect. A reading of their evidence supports his Honour’s conclusion.
His Honour’s ultimate finding is neither glaringly improbable or against the incontrovertible evidence. The fact that Costa told a number of people he was the driver is consistent only with his willingness to participate in the plan to keep the truth, as to who was driving, from the property insurer. The witnesses including Mr Pepe and Mr Iacorossi said that because of the circumstances they were sure that Mr Testa and his wife, Ms Nardi, knew what was going on. His Honour nevertheless said that he had no difficulty in accepting the denial of Mr Testa. His Honour gave extensive reasons for why he accepted the evidence of Mr Testa which included findings that:
·     The fact that Mr Testa was in the vicinity when conversations as to who was driving took place, did not mean he was aware of the conversations.
·     Mr Testa was lying on the ground discussing matters with his wife for whom he felt concerned.
·     He was also conversing with Mrs Petrocchi.
·     He was in pain, shaken by the accident and suffering breathing difficulties.
·     Some of the conversation about who was driving was conducted in English, a language which he had only a limited facility.
·     He had indicated he did not wish to be involved in any deceit.
·     He may have been present in a physical sense but his Honour was satisfied he was unaware of what others had thought “he must have heard”.
·     The evidence of Mr Randazzo who said when he telephoned Mr Testa in Italy, Mr Testa “had acted with some surprise that false statements had been made”.
·     The scheme to lie about the driver was concocted on an impulse and in a very short period.
These findings do not fly in the face of incontrovertible evidence, they stand quite consistently with his Honour’s findings that Costa told a number of witnesses that he was the driver, pursuant to the plan hastily concocted by Mr Pepe and participated in by Mr Iacorossi. Neither Mr Pepe or Mr Iacorossi gave evidence that they directly informed Mr Testa of the plan.
His Honour did not reject the credibility or truthfulness of the independent witnesses who said Costa told them he was the driver. His Honour did reject the underlying assumption of these witnesses and of Mr Pepe and Mr Iacorossi that Mr Testa heard these conversations or the plan to name another person as driver. There is nothing glaringly improbable about such findings and a total reading of the evidence supports his Honour’s findings.
Similarly his Honour accepted the evidence of Mr Testa that Sortino was the driver of the accident vehicle because as they set off on that section of the journey Mr Testa observed Sortino in the driver’s seat.
His Honour referred to Mr Testa giving his evidence in a clear and forthright manner, that he was unshaken in cross examination and carefully distinguished between those matters of which he was certain and those in relation to which he was in doubt.
His Honour was better placed than this Court to make such observation and I consider that his conclusion as to the credibility of Mr Testa should not be disturbed. His Honour has not misused the advantage he had as trial judge of seeing and hearing Mr Testa.
Accordingly, I would dismiss this ground of appeal.
The second substantial challenge to his Honour’s findings relate to the evidence of a seat belt graze consistent with Costa being on the right hand side of the vehicle.
Dr Michael Moore gave evidence that he is a medical practitioner. On 14 August 1997 he was a medical practitioner employed as the Emergency Department Registrar at the Royal Darwin Hospital. On that date Dr Moore treated Costa who identified himself as the driver of the vehicle. A report prepared by Dr Moore was tendered by consent (Exhibit t/p 20). Dr Moore related the investigation and treatment of Costa’s injuries and the observations made by Dr Moore as to those injuries.
In the last paragraph of his report Dr Moore says “In my opinion the seat belt graze I observed was entirely consistent with Costa’s statement to me that he was driving the vehicle at the time of the rollover.”
Dr Moore’s observations as to the injuries Costa sustained are supported by the evidence of the nursing staff. In particular Clinical Nurse Consultant Maureen Brittin who herself carried out a very thorough examination.
At AB 1149 - 1155 there was a debate by counsel as to the admissibility of a further supplementary statement made by Dr Moore.
It was the submission of counsel for the appellant that his Honour wrongly excluded this supplementary statement from the evidence.
At the trial before his Honour, counsel for Costa, Mr Walsh QC, submitted that the first statement admitted into evidence by his Honour was no more than a statement recording the doctor’s observations, including an opinion about the seat belt graze being consistent with Costa being the driver of the vehicle. He submitted that it was not an expert opinion and counsel for the other party should not be permitted to question Dr Moore going to some form of expertise.
His Honour the trial judge, commented that the statement tendered as an exhibit came forward as a statement from a doctor who received Costa in the emergency section of the hospital. The statement does not attempt to qualify him as an expert.
Mr Nosworthy, counsel for the appellant, stated to his Honour that he sought to question Dr Moore with a view to having his Honour accept that Dr Moore was qualified to express an expert opinion.
Mr Nosworthy agreed he had not provided a statement to counsel for Sortino containing the evidence he wished to adduce of Dr Moore’s experience and expertise in this area. Mr Nosworthy in the trial before his Honour submitted that this was an area of expert evidence; that Dr Moore had a capacity to recognise a seat belt graze and was able to say that in his opinion it was consistent with the statement made by Costa that he was the driver. Mr Nosworthy foreshadowed that Dr Moore could give evidence he had observed seat belt injuries on many occasions at Flinders Medical Centre, Royal Darwin Hospital and in the course of his work in the area of Air-Med Retrieval and that he has on past occasions recognised these injuries to be seat belt injuries.
At the trial Mr Walsh QC objected to this further statement by Dr Moore because it was against the rules dealing with notice of an expert’s opinion beforehand, so that the other party knows how to deal with it. It also offended an earlier ruling made by his Honour with respect to exchange of statements which were to be the essence of the material a party relied upon in its case. Mr Walsh QC had further submitted that it was not possible at that stage of the trial to test the basis of the conclusion as it needed to be established that it was an area of expertise and that Dr Moore was properly qualified as an expert witness.
His Honour accepted the argument of Mr Walsh QC and ruled that he would not allow this further evidence.
I consider his Honour was correct in accepting the arguments of Mr Walsh QC and refusing to admit the further statement of Dr Moore.
On a total reading of Dr Moore’s evidence he confirms he had a satisfactory level of communication with Costa. Dr Moore described the injuries he observed and the description of the accident as relayed to him by Costa. He agreed in cross examination (AB 1163) that he did not know the dynamics of the accident and the various forces exerted on the body of Costa during the rollover of the vehicle. He agreed he did not know if there was any contact of the left costal area with any part of the interior of the vehicle apart from the seat belt. Dr Moore agreed under cross examination that if he had no history given to him about who was driving then what he observed was consistent with Costa being seated elsewhere in the vehicle. In re-examination this answer was clarified to mean that Costa could also have been in the rear right on the driver’s side. Dr Moore also stated in evidence that without knowing the dynamics of the accident and precisely what happened to Costa’s body he could not say where Costa was seated apart from the fact that Costa had told him he was the driver.
Dr Moore’s evidence at its highest is that the seat belt graze was consistent with Costa being the driver of the vehicle. This view in light of the information he received that Costa was the driver combined with his obvious and understandable lack of knowledge as to the dynamics of the accident and what had occurred to Costa’s body during the course of the accident, must reduce the weight that could be given to his opinion.
The supplementary statement of Dr Moore is at AB 2072 – 2074. It is a statement and photograph. If I am wrong, and the supplementary statement should have been admitted and Dr Moore had been accepted as an expert, his evidence is still subject to the qualification that he had no knowledge of the dynamics of the accident. There may be other reasons to explain the marks noted by Dr Moore on Costa and described by Dr Moore as a seat belt graze.
On an analysis of the evidence of Dr Moore I consider his Honour was justified in coming to the conclusion that the injury described as a seat belt graze in the notes of Dr Moore was not in fact necessarily a seat belt graze. The appellant submits that his Honour was in error when he stated in his reasons for judgment (par 160):
“On the other hand the opinion of Mr Griffiths that the plaintiff was the driver centred upon the location of a “seat belt graze” at the “left costal margin”. Despite the fact that the injury was described as a “seat belt graze” in the hospital notes of Dr Moore I am not prepared to accept that this was necessarily so. That description was provided in circumstances where the plaintiff had informed Dr Moore that he was the driver of the vehicle. It was not an unreasonable conclusion for Dr Moore to attribute an injury in that area to a seat belt graze in those circumstances. In my opinion the injuries suffered by the plaintiff may equally have been caused by the plaintiff being seated in the left front passenger seat and that area of his body coming into contact with the left door, or part of it, during the course of the rollover. Both experts conceded this possibility. Mr Testa, who was seated in the rear left passenger seat, suffered an injury to approximately the same area of the body. He demonstrated this in the witness box. Whilst Mr Testa was unrestrained at the time of the accident and the front seat passenger was wearing a seat belt, this difference was not sufficient to exclude injury occurring to the plaintiff in this manner.”
I do not agree with the submission that his Honour was in error but consider it was an opinion by his Honour well founded on the evidence.
His Honour found difficulty with the evidence of the two expert witnesses called in these proceedings, Mr Chris Hall and Mr Michael Griffiths. His Honour indicated that he found the expert evidence of “limited assistance in determining who occupied which seat in the front compartment of the accident vehicle.”
His Honour analysed the evidence given by Mr Hall and Mr Griffiths. Mr Hall gave evidence to the effect that from the location of the damage to the vehicle and the position of the injuries on Costa and Sortino that it was more likely that Sortino was the driver and Costa the passenger. The evidence of Mr Hall was indicative that Sortino was the driver but his evidence was not conclusive. I do not consider it necessary to go into detail as to the evidence of the other expert witness, Mr Griffiths. During the course of cross examination Mr Griffiths admitted to a number of errors. These included changing his initial reconstruction of the accident and agreeing that the rollover involved the left side of the vehicle travelling over the right side of the vehicle. I make the following reference to the evidence of Mr Griffiths in cross examination (AB 1297):
“Can I suggest to you, Mr Griffiths, that you had sufficient information before you, when you wrote your first report, TP16, to reach the conclusion, correctly, that the rollover was left over right?---Yes, I did, but I incorrectly visualised the vehicle in the upside down situation.
And you also had sufficient information in relation to that left rear tyre to assist you understand how the bitumen got into the area between the tyre itself and the rim, didn’t you?---Yes, I did.
You got that wrong too, didn’t you?---It seems to me that there were two – two possible mechanisms about how bitumen and gravel got it – got entrapped between the wheel rim and the tyre, and that the method Chris Hall described was applicable to the left side wheels and the method that I proposed was probably applicable to the right side rear wheel.
I’ll put my question again. You got it wrong, didn’t you?---In this particular instance I – the method I described for how that gravel and bitumen got entrapped in the left side wheels was wrong.
Now, once again this is all pretty fundamental stuff, isn’t it, in terms of accident reconstruction?---Yes, it is.”
On a reading of Mr Griffiths’ total evidence I have concluded that his Honour was justified in having a concern as to the reliability of Mr Griffiths’ conclusions in other areas, in particular, his conclusion that the evidence was sufficient to show that Costa must have been the driver.
I would dismiss this ground of appeal.
The third substantial challenge relates to the events at the Royal Darwin Hospital and the appellant’s challenge to his Honour’s findings that Sortino told the truth when he admitted to being the driver and that Mr Testa was not aware of any change of story.
The evidence as to the events at the hospital presents a very disjointed picture as to times of arrival and departure of the various participants at the hospital and who was present at the various conversations and the time of such conversations.
Counsel for the appellant submitted that evidence as to what happened at the hospital was not homogenous. It was the submission of counsel for the appellant that the evidence supports a finding that the recanting of the earlier story, as to who was driving the vehicle, did not occur until the following day, that is, on 15 August, and that it is most unlikely it occurred as early as the night of the accident as found by his Honour.
In this regard, the evidence of Dr Gagliardo is significant. His Honour found that Dr Gagliardo did make a number of errors. However, his Honour found that Dr Gagliardo had no reason to mislead the Court, he was not alleged to be part of any conspiracy and had met the members of the Italian group for the first time on the night of the accident. His Honour accepted the evidence given by Dr Gagliardo that after Costa had collapsed Sortino had approached him saying that it was a false statement that Costa was the driver and that it was he, Sortino, who had been the driver and that then Sortino went on to explain to Dr Gagliardo why they had initially made a false statement.
Counsel for the appellant, submitted in considerable detail the differences on the evidence about what occurred at Royal Darwin Hospital. It is the submission of counsel for the appellant that what was said at the scene of the accident as to who was driving was the truth and what was said on this issue at the hospital was false.
I do not accept this submission. His Honour found, as he was entitled to do on the evidence, that the collapse of Costa was a very dramatic incident. Members of the group were concerned Costa would die. This was the reason Mr Pepe, Mr Iacorossi and Dr Gagliardo were each involved in the decision of Sortino to admit that he was the driver. Whilst they differ as to how they became involved in this decision, his Honour found (par 116) that their claims were not inconsistent with each other but reflected the fact that they were each asked to recount their involvement in the process. This finding is not glaringly improbable or against the incontrovertible evidence. Again, a reading of the evidence including evidence given by Mrs Nicolosi and Mr Randazzo, support his Honour’s finding when he accepted the truth of the statement made at the hospital on the night of 14 August 1997, that it was Sortino who was driving. This is supported on an analysis of all the evidence.
Counsel for the appellant submitted there is an appellable error in paragraphs 97 and 98 of his Honour’s reasons for judgment, as his Honour does not acknowledge there was a clear motive for there to be a lie told at the hospital as to who was driving because of the insurance implication for Costa who was seriously injured as a result of the accident.
I do not accept this to be an error by his Honour but rather a finding that although the appellant insurance company was very aware of the insurance implications, this was not a matter in the minds of Mr Pepe, Sortino or the others. Rather Mr Pepe, Sortino, and others believed it essential to tell the truth because of the condition of Costa whom they believed may die.

As to whether Mr Testa was aware at the hospital of the change of story the evidence is fragmented as to who was present for certain discussions and at what time. The Italian Consul, Mrs Nicolosi, thought it was at her home the following Friday night that Sortino first told her about the circumstances of the accident and the lie that had initially been told as to who was driving. His Honour found that in all probability such a conversation did occur at the hospital on Thursday night but did not have any significance in the mind of Mrs Nicolosi who had arrived to assist in a crisis situation where the main topic of concern was the welfare of Costa. His Honour accepted the evidence of Mr Randazzo the incoming Italian consul and a lawyer whom Mrs Nicolosi contacted. His Honour accepted that Mr Randazzo advised telling the authorities the truth about the accident. His Honour accepted Mr Randazzo did not speak with Mr Testa about any initial plan to nominate a false driver. His Honour accepted Mr Randazzo’s evidence that when he later telephoned Mr Testa after Mr Testa’s return to Italy, Mr Testa had expressed surprise that false statements had been made as to the identity of the driver.
His Honour accepted the evidence given by Mr Testa that he was not told at the hospital about changing an earlier version of who was driving. His Honour noted that Mr Pepe thought Mr Testa was present at the hospital and that Mr Iacorossi thought Mr Testa had left the hospital by the time these discussions took place. His Honour further noted that neither of these men gave evidence that they had given this information to Mr Testa at the hospital.
It is not glaringly improbable or against the incontrovertible evidence that his Honour found Mr Testa was not aware when he was at the hospital about any discussions to change the earlier version given to authorities that Costa was the driver. Again there was no direct evidence from anyone that Mr Testa was so informed. The highest the evidence goes is an assumption in this case on the part of Mr Pepe that because Mr Testa was there at the hospital he would have been aware of the discussions.
In my opinion, an analysis of the evidence supports his Honour’s findings. I would dismiss this ground of appeal.
The fourth substantial challenge has been referred to as the “Jones v Dunkel” issues. This challenge is in respect of the non-attendance to give evidence of Sortino and another person who was a passenger in the accident vehicle, Ms Nardi. There were four persons in the vehicle at the time of the accident. The only occupant to give evidence is Mr Testa. It is not disputed that Costa cannot give evidence. Counsel for the appellant submitted that the failure of Costa to call the other two occupants, Sortino and Ms Nardi, offends the rule in Jones v Dunkel (1959) 101 CLR 298, see RPS v R (2000) 168 ALR 729 per Gaudron ACJ at 736 paragraph 26:
“In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party’s camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party’s case and that:
where an inference is open from facts proved by direct evidence and the question is whether it should be drawn , the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.”
The submission on behalf of Costa is that there was a good reason why Costa, the plaintiff in the original action, would not call Sortino, the defendant in the original action, viz. because Sortino had cooperated with the appellant by providing a statement. Answers to Interrogatories were tendered in which Sortino made an admission to being the driver. Sortino had pleaded contributory negligence, referring to Costa grabbing the steering wheel. Counsel for Costa submitted that the instructions for such a pleading must necessarily have come from Sortino. In view of such a serious allegation then there would be no reason why the plaintiff should be expected to call the defendant to give evidence in the plaintiff’s case (see Fabre v Arenales (1992) 27 NSWLR 437).
With respect to the evidence of Ms Nardi, it was the submission of counsel for the appellant that Ms Nardi had provided a statement to the appellant in the absence of her husband, Mr Testa. There was no obligation upon the plaintiff to fill the gaps in the account of the motor vehicle accident. There was no evidence to suggest Ms Nardi was in the camp of either the plaintiff or the defendant. There was no evidence Ms Nardi had any connection with the plaintiff; she had not met the plaintiff prior to travelling with the group to Australia. Ms Nardi had indicated that she did not want to travel from Italy to Australia to give evidence as she had the care of her young two year old child. The appellant had offered to fund Ms Nardi’s travel to Australia to give evidence, however, her concern was her young child.
It was the submission of counsel for Costa that there was an adequate explanation for why neither of these witnesses were called by the plaintiff to give evidence and in view of the explanation there has been no breach of the rule in Jones v Dunkel (supra).
I agree with the submission that there is an adequate explanation for why the plaintiff did not call either of these witnesses at the trial. I also agree that even if there were some substance to the submission that there was no compliance with the rule in Jones v Dunkel (supra) there is no inference that could be drawn from their failure to give evidence that would controvert the findings of the learned trial judge.
I would dismiss this ground of appeal.
For the reasons stated above I would dismiss the appeal.
The appellant also appeals from a decision of the trial judge delivered on 11 September 2000 on the issue of costs.
On that date his Honour published reasons for judgment and made the following orders:
“(1)There will be judgment for the plaintiff against the defendant on the issue of liability with damages to be assessed.
(2)The defendant and third party pay the plaintiff’s costs upon the issue of liability in this proceeding to 25 August 2000 including all reserved costs, such costs to be agreed or taxed forthwith and then payable immediately.
(3)I certify that the retainer of senior and junior counsel by the plaintiff was warranted.
(4)The third party pay the defendant’s costs upon the issue of liability in this proceeding to 25 August 2000 including all reserved costs and costs to be agreed or taxed forthwith and then payable immediately.
(5)I declare that, pursuant to s 6 of the Motor Accidents (Compensation) Act, the defendant is entitled to be indemnified by the third party to the extent of his liability to the plaintiff.
(6)There will be liberty to all parties to apply.”
In the notice of appeal the appellant sets out the following grounds of appeal relevant to the issue of costs.
“28.The Learned Trial Judge erred in exercising his discretion on the question of costs by having regard to:
28.1whether or not the Defendant, Pepe and Iacorossi did ‘correct the story’, and whether they did so ‘at an early time in relation to these proceedings’ (Costs Reasons para [13]);
28.2whether or not it was put to the witnesses in cross examination that they had failed to cooperate with the Third Party (Costs Reasons para [14]);
28.3whether or not the witnesses had cooperated with the Third Party (Costs Reasons para [14]).
29.The Learned Trial Judge erred in finding as a fact that there was nothing more that those who represented the Plaintiff could have done to lead the Third Party to accept the version of events put forward at trial, and that the same observation applied to the Defendant (Costs Reasons para [17]).
30.The Learned Trial Judge, in exercising his discretion on the question of costs, should have had regard to the conduct of the Plaintiff and the Defendant and their representatives and accomplices which created the position in which the Third Party found itself. (Costs Reasons para [17]).
31.The Learned Trial Judge erred in failing to have regard to the fact that:
31.1the Defendant failed to appear at the trial;
31.2the Defendant had attended Darwin without communicating with the Third Party, approximately three weeks before the trial commenced;
as factors which should affect the exercise of his discretion on the question of costs.
32.The Learned Trial Judge erred in failing to consider:
32.1orders for costs on a different basis as between the Third Party and the Defendant on the one hand and the Plaintiff on the other;
32.2whether or not he should decline to grant the Plaintiff costs even if, in the exercise of his discretion, he did not consider it appropriate to award the Third Party costs against the Plaintiff;
32.3whether or not he should decline to grant the Defendant costs even if, in the exercise of his discretion, he did not consider it appropriate to award the Third Party Costs against the Defendant.”
The appellant seeks the following orders:
“33.That the judgment for the Plaintiff against the Defendant be set aside.
34.That the judgment that the Defendant is entitled to be indemnified by the Third Party be set aside.
35.That the Third Party have judgment against the Defendant.
36.That the Plaintiff pay the Third Party’s costs on the issue of liability.”
Rule 63.03 of the Supreme Court Rules 1987 (NT) sets out the general rule relating to costs. It provides that:
“63.03 General rule
(1) Subject to these Rules and any other law in force in the Territory, the costs of a proceeding are in the discretion of the Court.
(2) Where in the opinion of the Taxing Master or the Court the strict application of this Order (other than this subrule) would result in an anomaly, the Taxing Master or the Court may tax costs, or make such order in relation to costs, as he or it thinks equitable in the circumstances and the costs so taxed or ordered are payable and may be enforced under this Order accordingly.”
For the purpose of identifying the parties to this appeal, I note that the appellant, The Territory Insurance Office, was the third party at trial and will be referred to as the appellant. The first respondent to the appeal, Carlo Costa, was the plaintiff at trial and will be referred to as Costa. The second respondent to the appeal, Gianfranco Sortino, was the defendant at trial and will be referred to as Sortino.
There was no dispute between the parties as to the general principles to be applied as to the awarding of costs. His Honour summarised these principles in par [5] and par [6] of his reasons for judgment as follows:
“[5]I have a general discretion as to the awarding of costs. That discretion is absolute and unfettered except that it must be exercised judicially, not arbitrarily or capriciously or on grounds unconnected with the litigation: Donald Campbell & Co v Pollak (1927) AC 732; Cretazzo v Lombardi (1975) 13 SASR 4. However, as is acknowledged by each of the parties, the plaintiff was successful in his action against both parties and in the normal course would expect to receive his costs on the basis that costs follow the event: Hughes v Western Australian Cricket Association (Inc) & Others (1986) ATPR 40-748 at 48,136; Donald Campbell & Co v Pollak (supra at 812); Cretazzo v Lombardi (supra at 12).
[6]It was the submission of the third party that there is discretion to deny a successful party the costs of an action. That is undoubtedly so: Cretazzo v Lombardi (supra at 12); Jones v NAALAS Inc (1986) 82 FLR 264. The discretion is not limited to depriving a successful defendant of his costs, it also extends to a successful plaintiff: Donald Campbell & Co v Pollak (supra at 822). In considering the exercise of the discretion it is appropriate to look at the conduct of the party in the litigation and also matters which led up to and were the occasion of the litigation: Bostock v Ramsey Urban Council (1900) 2 QB 616 at 622.”
On 25 August 2000, his Honour had published his reasons for awarding judgment in favour of Costa on the issue of liability. On that date Costa sought an order that Sortino and the appellant pay Costa’s cost of the proceeding to date. Sortino sought an order that the appellant pay his costs of the proceeding to date. The appellant sought an order that it should have its costs of and incidental to the trial on the question of liability against Costa and also against Sortino notwithstanding the finding that Costa is entitled to an order for damages to be assessed against Sortino and that Sortino is entitled to be indemnified by the appellant.
In argument before the trial judge, there was no issue as to the Court’s power to make each of the orders sought by each of the parties. Similarly, in the Court of Appeal there is no issue as to the Court’s power to make the orders sought by the appellant. The issue before the Court of Appeal is as it was before the trial judge as to how the discretion to award costs should be applied in the unusual circumstances of this case.
The appellant argues that the learned trial judge was in error to have regard to the fact that Sortino and a number of witnesses; Ms Nardi, Mr Pepe, Mr Iacorossi and Mr Randazzo each cooperated with the appellant in the sense of being willing to speak to the representatives of the appellant. It is the appellant’s contention that the conduct to be analysed is that of Costa up to the time of his collapse when he consistently asserted that he was the driver. The appellant further submits this assertion was plainly supported by the seat belt graze and the evidence of Dr Moore and the conduct of the matter by his advisers thereafter and the conduct of Sortino.
I do not accept this submission. The relevant findings are that Costa, Sortino and others gave a false story at the scene of the accident and on first arriving at the hospital. The false story being that Costa was the driver and Sortino a front seat passenger. Costa never corrected the false story. Costa collapsed at the hospital having sustained very serious injuries which have continued to render him unable to communicate. Sortino and two of the witnesses present at the scene being Mr Pepe and Mr Iacorossi corrected the story following the collapse of Costa at the hospital and at an early time in the proceedings. Further, this Court has already found that there is evidence to support his Honour’s finding that the evidence of Dr Moore and Mr Griffiths does not support the original version of events that Costa was the driver. All of this evidence and the evidence of other key witnesses was available to the appellant prior to trial. The appellant continued to maintain that the changed version as to who was driving was a conspiracy to defraud the appellant insurance company. The appellant was not successful in establishing this theory on the evidence.
The appellant challenges a statement by the trial judge which the appellant regards as a key finding. This is at par [17] of his Honour’s reasons for judgment:
“The third party elected not to accept the evidence of the defendant, Mr Testa, Mr Iacorossi, Mr Pepe and of others where it was inconsistent with the position adopted by the third party at trial. It was not submitted that it did not have available to it all of the information necessary to determine how it should proceed and, in particular, whether it should accept the accuracy of the version of events provided by the witnesses. There was nothing more that those who represented the plaintiff could have done to lead the third party to accept that version of events. The same observation applies to the defendant. The position of the third party is a position in which insurers and administrators of compensation schemes must find themselves on many occasions. The third party elected not to accept the information provided to it by the various witnesses. Rather it elected to challenge their credibility and to fight the plaintiff’s claim and to do so with vigour. In the end result I have found that the witnesses were credible and I found in favour of the plaintiff. I do not see the fact that the third party had a basis for being suspicious of the plaintiff’s claim in the circumstances of this matter as being sufficient to warrant me exercising my discretion in the manner suggested by the third party.”
The appellant states that his Honour was not correct to say “there was nothing more that those who represented the plaintiff could have done to lead the third party to accept that version of events. The same observation applies to the defendant”. The appellant states Costa could have told the full story from the start and a deliberate decision was made not to do so. However, his Honour’s findings must be read in the full context of par [17] of his reasons as set out above. Of course Costa could have told the truth from the start and perhaps have avoided the grounds for suspicion that his Honour found the appellant held about who was driving. A similar comment could be made about the initial untruth told by Sortino. The fact that Costa told an untruth which was shortly afterward rectified by Sortino and a number of witnesses who gave evidence at trial, does not justify the appellant continuing the defence and subsequent appeal when they had available to them all of the information from the various witnesses who were subsequently called at trial and information provided by Sortino who did not give evidence at the trial.
The appellant puts forward an argument with respect to the issue of costs relating to the failure by Costa to call evidence from Ms Nardi and Sortino. I have dealt with this issue in the substantive judgment and do not consider it necessary to repeat those findings. In essence I accept that there was a satisfactory explanation for why Costa did not call either of these persons. Their failure to attend to give evidence cannot found an argument to interfere with his Honour’s discretion as to costs.
The appellant submits that the trial judge wrongly characterised the appellant’s decision as an election “not to accept this information provided to it by the various witnesses”. The appellant says that what it did was to consider all the evidentiary material available to it which included material highly suggestive of a conspiracy to defraud, and then to contest the matter. I do not accept this submission. The trial judge clearly acknowledged that the appellant had a basis for being suspicious of Costa’s claim. His Honour then explains that in the circumstances of this case he does not consider that as sufficient to exercise a discretion in favour of the appellant on the question of costs. I do not consider that there has been any error demonstrated in the exercise of the discretion to deny the appellant an order for costs and award costs in favour of Costa.
The appellant also challenges the order made by his Honour that the “third party pay the defendant’s costs upon the issue of liability in this proceeding to 25 August 2000 including all reserved costs and costs to be agreed or taxed forthwith and then payable immediately”.
It is the submission on behalf of the appellant that the trial judge has only considered whether or not Sortino won or lost in forming his conclusions in respect of the costs of Sortino.
The appellant submits the trial judge should have considered the following:
“The Trial Judge should have considered:-
(a)whether he should decline to grant the Plaintiff costs even if, in the exercise of his discretion, he did not give costs to the Third Party;
(b)whether he should have made an order for costs on a different basis as between the Third Party and the Defendant on the one hand and the Plaintiff on the other;
(c)whether or not he should decline to give the Defendant costs even if, in the exercise of his discretion, he did not consider it appropriate to award the Third Party costs against the Defendant.”

I do not accept that his Honour failed to give these matters consideration. His Honour did not pose the alternatives in the manner expressed by the appellant. However, his Honour has given detailed reasons for the way in which he exercised his discretion to order costs. There has been no error demonstrated in the manner in which this discretion was exercised or in the reasons expressed by the learned trial judge.
I do not consider it appropriate to interfere with the discretion his Honour exercised on the issue of costs. I would dismiss the appeal against the trial judge’s order for costs made on 11 September 2000.

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