Gummow J agreed with McHugh J. Kirby and Callinan JJ each expressed concern about this incorrect finding and, at par 166, Kirby J said:-
"For example, although I consider that the respondent has made good her criticism of the primary judge's suggestion that the respondent and her husband deliberately and dishonestly allowed their garden to deteriorate, this was only one of a number of findings made adverse to the respondent and her credibility. It was not specifically invoked by the primary judge in his consideration of the causation issue."
50 Callinan J expressed concern about the finding and what he considered was the artificiality of excising clearly erroneous parts of a judgment from others in which no error was apparent. He thought that process "may assume an even more unconvincing air when the error relates to credibility and credibility is a significant issue in the trial": par 222. None-the-less he was of the view that the finding on credibility "must be accepted notwithstanding" his concerns: par 223.
51 Therefore, even though one may find error in relation to an issue of credibility in a judgment, the findings of which are based essentially on credit, the appellant must not merely establish the error, but that it was "decisive". In the instant case this error could not be said to be "decisive" on any fair reading of the judgment.
52 A finding of dishonesty, incorrectly made, seems to me to be a far more serious matter than her Honour's impugned finding in this case.
53 Mr Barry next complained of several errors in the paragraph I have quoted in pars 29 and 30. I am not satisfied that the factual errors in this sentence in any derogated from her Honour's basic finding, founded on the evidence she accepted, that the appellant fell from the horse within moments of its being "spooked" and somewhere near the centre of the track.
54 I would only add, and I do so without wishing to be unduly critical of a busy trial Judge under pressure to produce judgments as quickly as possible for the benefit of the parties, that part of the function of writing judgments is to disclose to the litigants, among others, the reasons for the conclusions. If a litigant reads that which is apparently incorrect on the evidence, the litigant may well, and with justification, harbour a feeling that proper attention has not been paid to the case. However, having said that, I do not regard the mistakes to which reference was made as vitiating the critical findings her Honour made.
55 The second complaint by Mr Barry was that her Honour had failed to state what she gleaned from the view. The view was held some years after the event, on the application of Mr Barry and before addresses. He submitted that s 54 of the Evidence Act 1995 obliges the Court to treat the view as evidence and to record the substance of what the Judge observed. In my opinion the section does not. The Court may draw inferences from what it observes at the view. It need not do so. The critical fact, however, concerning this complaint, is that her Honour did not state in her judgment that she drew any inferences from the view. This was not a case where her Honour set out in the judgment inferences from the view, which she had never stated to the parties to enable them to respond. There is no substance in the complaint. The idea that every time a Judge holds a view he or she is obliged to record what happened on that view, even if no inferences are drawn, must be rejected.
56 The third complaint was the failure to allow Mr Barry to re-open to call Mr Beattie. It was conceded by Mr Barry that her Honour had a discretion as to whether to allow him to re-open, but he complained that she had not given any reasons for exercising that discretion against him. This Court explored the matter in detail with the parties' consent. In my opinion, the starting point for a consideration of this submission is that, prima facie, a plaintiff is bound to call all his evidence in chief in his case. It is only when the plaintiff closes his case that the defendant must decide whether, and to what extent, it is necessary to call evidence. However, there are exceptions to this, particularly in a busy running list in a country town where witnesses have been called and are waiting to give their evidence, although this exception is not confined to country towns. A plaintiff may not have a witness available. Rather than the trial halting awaiting the arrival of a witness, it is a not uncommon feature of litigation for the plaintiff to indicate that that is his case, subject to calling a specified witness or witnesses not presently available. Usually, in those circumstances, common sense prevails and the defendant goes into evidence. There may be cases where that is not appropriate.
57 It would seem to me that in the preparation of the case the evidence of Mr Beattie was something that would have been explored, in the normal course of events, by the appellant's legal advisers well before the trial. He, after all, was the person nearest to the appellant when his horse was "spooked". It is difficult to think of anyone who could have given a better account, on an independent basis, as to what happened. However, it seems that Mr Beattie was not interviewed by those representing the appellant prior to the hearing.
58 Those matters aside it emerged in this Court on further exploration that the respondents had subpoenaed Mr Beattie and that he had attended the Deniliquin Court in answer to that subpoena. It was not suggested that his presence was not known to those representing the appellant. Mr Barry said that he assumed from Mr Beattie's presence that the defendant would be calling Mr Beattie. He did not suggest that he asked Mr Deakin if this was so or obtained any assurance from him that he would be calling Mr Beattie, or asked Mr Deakin to advise him if the respondents proposed to release him from compliance with the subpoena. Nor was it suggested that any other member of the appellant's legal team took any such action. In these circumstances, Mr Deakin, or those instructing him, did release Mr Beattie and he left Deniliquin. A substantial difficulty in the appellant's path on this argument is that a tactical decision had been taken that it would be better for Mr Barry to cross-examine Mr Beattie rather than to call him in chief. That is the only inference I can draw from Mr Barry's very frank statement that he had decided that he would cross-examine Mr Beattie, a decision, however, which was premised on the respondents' calling him and was taken without any assurance that that would happen. No doubt it would, in those circumstances, have been tactically unwise to ask Mr Deakin if he was calling Mr Beattie, as Mr Deakin would not have been obliged to answer such a question, but probably would have been alerted by it to the tactic Mr Barry had in mind.
59 It was only after Mr Beattie was not called by the respondents, that Mr Barry had him return to Deniliquin with a view to his giving evidence in the appellant's case.
60 In my opinion, had her Honour explored those matters, together with one other to which I shall refer, there could have been no complaint about the way in which she exercised her discretion. If a party makes a tactical decision not to call a witness, in the hope that the witness will be called by the other party and thereby the first party will have the advantage of cross-examining the witness, and the second party does not call the witness, then to try to re-open to call evidence which should have been adduced in the case from the beginning could well lead to an exercise of discretion to refuse to allow the evidence to be called.
61 Mr Barry sought to put the matter in another way. He said that the cross-examination of the appellant did not disclose the nature of the case the respondents proposed to make, namely that the fall occurred almost instantaneously with the "spooking" of Jim's Advice. He submitted that this alleged failure either allowed him to re-open or to call Mr Beattie in reply. For the reasons I have given, I am of the view that the respondents' case was sufficiently disclosed in cross-examination of the appellant.
62 The next point, which this Court explored, was what Mr Beattie would have said had he been called. As I have said, apparently no proof of evidence was taken on behalf of the appellant before the hearing, but Mr Barry tendered, without objection, a letter from his instructing solicitors to Mr Beattie of 6 September 1999. It referred to a telephone conversation between the author and Mr Beattie on 13 August 1999, i.e. well after the trial and judgment, and enclosed a draft affidavit "prepared on your behalf". Mr Beattie was asked to read the document, make any amendments he considered necessary, and add any further observations. The letter continued:-
"We ask that you provide every recollection you have from when you mounted your horse for the subject race to the events after Terry sustained his fall.
As the matter is now proceeding to the Court of Appeal we request your reply as a matter of urgency".
63 The affidavit, which was annexed to the tendered letter and was part of the tender, was apparently sworn by Mr Beattie at Wangaratta. It stated:-
"1. In about November 1998, I received a subpoena to give evidence at the hearing of this matter in Deniliquin.
2. On about 25 November 1999 (sic) I attended Deniliquin and conferred with Mr Peter Deakin QC and a Miss Rebecca Williams who I understood to be the solicitor for the defendant. There was also another gentleman present, however I do not recall his name.
3. During the conference, I said to Mr Deakin and Miss Williams words to the effect:
'I was riding up to the starting gates next to Terry. The horse I was riding was approximately 3 horse widths off the running rail. Terry was riding outside me. As we were trotting along B.J. Ryan came down the outside which was on the lefthand side of Terry. B.J. spooked both the horse I was riding and the horse that Terry was riding. I let my horse run and Terry grabbed the reins of his horse and turned it towards the running rails.
I heard Terry's horse collide with the running rail. I subsequently turned around and saw Terry lying on the racecourse.
I definitely heard Terry's horse hit the running rails.'
4. On the same day I was advised by Miss Williams that I could return home and that I would not be required to give evidence.
5. On 26 November 1999 (sic), Mr Jeremy Mackenzie contacted me by telephone. Mr Mackenzie advised to me that he required me to again attend Deniliquin for the purposes of giving evidence.
6. On the same day I was called to give evidence. I gave a small amount of evidence when objection was taken. I was stood down and returned home.
7. Had I been permitted to give evidence I would have said precisely what I had said to Mr Deakin, QC and Miss Williams in conference on 25 November 1998.
In addition, I would say .."
64 Mr Beattie did not advance any further material.
65 I am unable to see how this evidence would have assisted the appellant's case, save, arguably, in one respect, namely that he saw the appellant grab the reins and turn the horse towards the running rails. On the other hand, it flatly contradicted the appellant's evidence that a horse ridden by Mr Petty pushed between that being ridden by the appellant and that being ridden by Mr Beattie. It also contradicted the appellant's evidence that Mr Ryan was riding on the inside (righthand side) of Mr Beattie and, in doing so corroborated Mr Gray's evidence that there were only two horses. These various matters would have cast further doubt on the appellant's recall of the incident. Further, Mr Beattie put the appellant's horse at least four horse widths out from the rails.
66 The statement makes it clear that Mr Beattie was fully occupied in bringing his own horse under control, that he did not see the appellant fall near the running rail, although he heard Jim's Advice collide with it, which fact ultimately was not in issue. The critical fact was that Mr Beattie gave no evidence, and presumably was unable to give any evidence, as to when the appellant fell from his horse, as to which her Honour accepted the evidence that it was at the time of the "spooking" of the horses.
67 In these circumstances I am satisfied that no injustice was done to the appellant by the refusal to allow the case to be reopened. When that factor is coupled with the obvious tactical decision taken in relation to Mr Beattie, it seems to me that the complaint about her Honour's failure to allow the appellant to re-open disappears.