(10) The costs of the first trial are to abide the decision of the Judge presiding at the second trial.
64 POWELL JA: I agree with Handley JA.
65 GILES JA: I have had the advantage of reading the judgment of Handley JA in draft, and will not repeat his Honour's account of the relevant evidence and the course of the trial.
66 I agree that, for the reasons given by his Honour, the Council's appeal against the order that it indemnify Emoleum should be allowed and, subject to the significance of what occurred in relation to the cross-examination of Mr Browne and Mr Duff, the finding that the Council and Emoleum are liable to the plaintiff should not be disturbed. The qualification is important because, for reasons which will appear, I respectfully take different views from those of his Honour in relation to the cross-examination of Mr Browne and Mr Duff, and consider that what occurred in relation to the cross-examination of Mr Duff calls for a new trial on liability at least in relation to Emoleum. But for my conclusion that a new trial on liability is necessary, I would have concurred with his Honour in allowing the Council's appeal in relation to apportionment and substituting an equal apportionment, and I agree that in any event there should be a new trial as to damages, in each case without wishing to add to his Honour's reasons.
67 The following are the reasons for my conclusion that a new trial on liability is necessary.
68 The Judge did not refuse permission to Mr Mescher to cross-examine Mr Browne because no notice under r 9(2) had been given, or because even if notice had been given the admission of Mr Browne's report and the time at which and circumstances in which Mr Mescher raised the matter meant that Mr Browne should not be required to attend for cross-examination. The Judge was told by Mr Mescher that attendance for cross-examination had been requested by Mr Mescher's solicitors, and he may have gained from Mr Doherty's "When?" that that was not common ground, but he did not explore the question of notice under r 9(2). Nor did he seek information or submissions as to the time at which or circumstances in which Mr Mescher raised the matter, or explore what Mr Mescher had in mind by way of cross-examination. The Judge did not give an opportunity for exploration, or for information or submissions.
69 Instead, the Judge peremptorily said that there was "nothing there you'd need to cross-examine about" because there was "an inescapable inference that your roller broke the pipe". Undoubtedly on the evidence as it then stood an inference was available, but the Judge was not privy to Mr Mescher's instructions, and whether it was an inescapable inference might have been affected by the cross-examination, for example, going to why Mr Browne's inspection disclosed recent fracture and possible explanations of or other occasions for fracture of the pipe. The Judge refused permission to cross-examine Mr Browne because of a closed mind on the effect of Mr Browne's report, and in that respect fell into error in the exercise of his discretion.
70 The error does not of itself mean that there must be a new trial on liability. If this Court were to conclude that, on a proper exercise of discretion, the Judge should have refused permission to cross-examine Mr Browne, the immediate significance of the error would fall away. It is therefore necessary, in my view, to reach a conclusion on whether notice under r 9(2) had been given, and so to address the evidence of the plaintiff's solicitor and of Mr Mescher and his instructing solicitor before this Court. If notice had not been given, then the time at which and circumstances in which Mr Mescher raised the matter, as revealed in this Court, would inevitably have meant failure of the implicit application for an order that Mr Browne attend for cross-examination.
71 Like Handley JA, I am not satisfied that the letter in question was sent. It follows that, although not for the reasons given by Handley JA, the refusal of permission to cross-examine Mr Browne does not of itself impugn the plaintiff's verdict(s).
72 The peremptory ruling of the Judge when Mr Mescher raised the matter does, however, have some remaining relevance, since it suggests that the judge had a closed mind on the effect of Mr Browne's report even when he intervened a little earlier in the day to reject questions in the cross-examination of Mr Duff.
73 It was relevant for Mr Mescher to seek to establish through Mr Duff that the Council had not complained to Emoleum about the work. While it may not have been overly persuasive, if Mr Casamento had checked the work and there was no complaint to Emoleum, then the hypothesis that the damage to the pipe occurred after the work had been completed would have received some support - that was an hypothesis urged on this Court by the Council in its appeal. It was no answer to Mr Mescher's endeavour that there was no evidence of complaint. Mr Mescher properly wanted to make good the different proposition that there was in fact no complaint.
74 Having been rebuffed in this endeavour, Mr Mescher was then cut short in questions about the process of resurfacing a footpath by the Judge's fairly firm indication that he did not think it of any relevance. This was probably erroneous in itself, since a process involving rolling and the possibility of damage from the roller was clearly under consideration. The significance of the judge's intervention, however, was more in the reason he gave: "I haven't heard a syllable of evidence uttered against your client that this was not done properly. If such evidence turns up you can cross-examine somebody about it but there's no evidence at the moment."
75 This indicated that the judge did not see the evidence, which at that time included the report of Mr Browne, as showing that Emoleum had not done its work properly. Mr Mescher was told that, for that reason, he need not cross-examine about the process of resurfacing in which Emoleum had engaged. It is true that, as Handley JA has said, Mr Mescher's questions had not been directed to the use of a roller, or the size of the roller used, but he was not given the chance to get to that part of the process, and, on the contrary, was in effect told that what Mr Browne had said about the fracture of the pipe probably from being run over by the roller in the recent resurfacing meant nothing against Emoleum. Yet the Judge must have thought, as he said a little later in the day, that there was "an inescapable inference that your roller broke the pipe".
76 The message in the reason given by the Judge for terminating this line of cross-examination was quite misleading, and was objectively incorrect in that what Mr Browne had said about the fracture of the pipe did provide a case against Emoleum. With respect to Handley JA, in my view there was error by the Judge amounting to a substantial wrong or miscarriage. The Judge's intervention in the cross-examination of Mr Duff meant in a practical sense that Mr Mescher was precluded from endeavouring to deal with the ground on which the plaintiff in due course succeeded on liability, and there was a denial of procedural fairness: cf Stead v State Government Insurance Commission (1986) 161 CLR 141.
77 It may be said that Mr Mescher should have been more forthright, should have queried what the Judge said and tried to continue because the Judge might have come to see the evidence differently, or should have tried to return to cross-examination of Mr Duff after the Judge had spoken of an inescapable inference. Hindsight is wonderful, but the realities of the trial must not be forgotten. The Judge's interventions in the cross-examination of Mr Duff had been repeated and forceful ("I'm sorry if I appear aggressive about it"). When the Judge spoke of an inescapable inference he was equally forceful, and his ruling and what he said would have given no encouragement to an application to have Mr Duff recalled for further cross-examination. The Judge had not really held that out to Mr Mescher, saying only that if evidence of improper work turned up "you can cross-examine somebody about it". Counsel should be vigilant and appropriately fearless in the interests of the parties they represent, but they do not have to seek to persuade a judge from a concluded and immovable, albeit erroneous, position. In the circumstances, while Mr Mescher could have done more I do not think that the Judge's error should be passed over on the ground that there was an opportunity to overcome it which was not taken up.
78 Hence in my view the appeal of Emoleum should be upheld, and there should be a new trial going to its liability as well as to damages. The Council did not adopt this ground of Emoleum's appeal as a ground of its appeal, presumably because it had not been prevented from leading evidence from Mr Duff and so had not been denied procedural fairness. It would be perhaps incongruous if the Council's liability remained, but that of Emoleum was overturned, when Mr Mescher's cross-examination of Mr Duff might have brought out evidence which would have been relevant to the Council's position as well as that of Emoleum. Since my view in relation to the cross-examination of Mr Browne and Mr Duff is a minority view, I need not address its impact (if any) on the verdict against the Council. For the same reason, when I have indicated my agreement with Handley JA in other respects there is no point in formulating orders reflecting my partial divergence from his Honour's conclusions.