Davies v Pyke [2004] VSCA 124

Court of Appeal (Vic)|2004-07-22|Before: CALLAWAY, BUCHANAN and NETTLE, JJ.A.

For the reasons given by Buchanan, J.A. it is not inappropriate to characterize the defendant in this case as having been in the camp of the plaintiff. But we were not taken to any authority and I have not been able to find any myself where the possibility of connivance between the plaintiff and the defendant has resulted in anything more adverse to the plaintiff than a legitimate excuse for the failure of the defence to call the defendant as a witness. In my opinion it is a surprising proposition that the possibility of connivance between the plaintiff and the defendant should be thought to render it natural for the plaintiff to produce the defendant as a witness or expected that the defendant would be available to the plaintiff in the relevant sense.

The point was not taken on appeal and therefore does not affect the outcome. But I would wish to reserve to another day and until after full argument a final decision on the question.

[5] O'Donnell v. Reichard [1975] VicRp 89; [1975] V.R. 916 at 921 per Gillard, J. See also Earle v. Castlemaine District Community Hospital [1974] VicRp 86; [1974] V.R. 722 at 734-5 per Lush, J.; Payne v. Parker [1976] 1 N.S.W.L.R. 191 at 201-2 per Glass, J.A.

[6] Smith v. Samuels (1975) 12 S.A.S.R. 573 at 581 per Bray. C.J. See also Ghazal v. Government Insurance Office of N.S.W. (1992) 29 N.S.W.L.R. 336 at 343 per Kirby, P.; Spence v. Demasi (1988) 48 S.A.S.R. 536 at 537, 538 per Cox, J.

[7] Cf. Fabre v. Arenales (1992) 27 N.S.W.L.R. 437 at 450-1 per Mahoney, J.A.

[9] Above at 448. See also Gannon v. Gannon [1971] HCA 76; (1971) 125 C.L.R. 629 at 645 per Windeyer, J.; Kabadanis v. Panagiotou [1980] FCA 80; (1980) 47 F.L.R. 221 at 230 per Blackburn, Franki and Keely, JJ.; Jackamarra v. Krakouer, unreported, Full Court of the Supreme Court of Western Australia, 21 December 1998.

[10] Cf. Government Insurance Office (N.S.W.) v. Fredrichberg [1968] HCA 54; (1968) 118 C.L.R. 403 at 414 per Barwick, C.J.

[11] See, for example, King v. Wilkinson (1957) 57 S.R.(N.S.W.) 444 at p.448; Kabadanis v. Panagiotou [1980] FCA 80; (1980) 47 F.L.R. 221 at p.220; Jackamarra v. Krakouer, unreported, SAFC 21 December 1998, BC 9807035 at p.5.

[12] Jackamarra v. Krakouer supra at p.5 per Anderson, J.

[13] See Fabre v. Arenales (1992) 27 N.S.W.L.R. 437 at 449-450, to which Buchanan, J.A. has referred.

[14] [1976] 1 N.S.W.L.R. 191 at pp.201-2; and see Cross on Evidence, Aust. ed. At [1215].

Negligence - Motor vehicles - Defence conducted by counsel briefed for Transport Accident Commission - Whether counsel could announce appearance for Commission - Whether counsel obliged to conduct defence in accordance with defendant's version of events - Defendant said to be in league with plaintiff - Defendant not called by either side to give evidence - Rule in Jones v. Dunkel [1959] HCA 8; (1959) 101 C.L.R. 298 - Whether open to draw inference against plaintiff - Verdict of no negligence on part of defendant not unreasonable.

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