Hadid v Redpath

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40147/01 DC 8110/97 STEIN JA HEYDON JA GROVE J

Courts and judicial system - Appeal - Adequacy of reasons - Motor Accidents - Whether trial judge adequately weighed evidence of both parties - Whether trial judge adequately addressed dilemmas posed by evidence - Whether inadequacy of reasons is substantial miscarriage of justice justifying new trial on liability - Supreme Court Rules Pt 51 rr 23(1) and 23(2)

Courts and judicial system - Judges - Delays in delivery of judgments - Discussion of delay in judgment delivery and effect on adequacy of reasons - Discussion of time pressures upon District Court judges

The plaintiff (the appellant) was seriously injured in a motor vehicle accident. He sued the driver of the other vehicle involved in the accident in the District Court. The trial concluded on 14 March 2000 and judgment was reserved. On 6 March 2001, the trial judge delivered her reasons for judgment dismissing the plaintiff's Statement of Claim and ordering the plaintiff to pay the defendant's costs. The plaintiff appealed.

Held by Heydon JA (Stein JA and Grove J concurring), allowing the appeal and ordering a new trial on liability:

1. The trial judge erred by failing to explain why she "preferred" the evidence of the defendant, and by failing to address the dilemmas created by the defendant's evidence and also by the concession of a witness. There was an inversely proportional relationship between the parties in point of creditworthiness. Therefore, the merits and demerits of each party's evidence needed to be weighed.

2. It is not necessary to address the question of delay, as the established error would be equally erroneous if found within an ex tempore judgment or a judgment reserved for a different amount of time. Discussion of delay in judgment delivery.

3. The inadequacy of reasons was a substantial miscarriage of justice justifying a new trial on liability under the Supreme Court Rules, Pt 51 rr 23(1) and 23(2). The Court of Appeal could not reconsider the issues without the advantages of a trial court in observing witnesses.

(a) that the parties agree that it will be possible to calculate the damages payable by the defendant to the plaintiff, should there be a verdict for the plaintiff at the new trial, in consequence of the findings made by the trial judge on that subject at the first trial; and (b) that if the plaintiff succeeds in obtaining a verdict at the new trial, the trial judge at that trial will award damages accordingly.

5. The respondent is ordered to pay the appellant's costs of the appeal.

6. The respondent is to have a certificate under the Suitors Fund Act , if qualified.

7. The costs of the first trial are to be within the discretion of the judge conducting the new trial.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40147/01 DC 8110/97 STEIN JA HEYDON JA GROVE J

20 November 2001 HADID v REDPATH Judgment 1 STEIN JA: I have had the benefit of reading the illuminating judgment of Heydon JA. I agree with it and the orders which are proposed. In particular, I would associate myself with his Honour's remarks about reserved judgments in the District Court. I recall the pressures of work in the District Court when I was a judge there between 1983 and 1985. In all probability the demands have become greater today. If the resources of the District Court permit, more time for reflection and the writing of reserved judgments should be made available in appropriate cases. 2 HEYDON JA: Background On 12 December 1995 the plaintiff was seriously injured when his car and the defendant's truck came into collision. 3 On 7 February 1997 the Statement of Claim was filed. 4 The trial of these proceedings commenced in the afternoon of 25 August 1999 before English DCJ sitting in Sydney. It continued on 26 and 27 August 1999. It had not been completed by the end of 27 August. Hence it was adjourned on that day. It was adjourned to 6 September 1999, but for some reason did not in fact resume until 14 March 2000 at 10.47am. (Though both the Notice of Appeal and a letter from the plaintiff's solicitors dated 13 February 2001 state that the hearing resumed on 13 March 2000, there is no record in the material before this Court of anything having happened on that day.) The case concluded on 14 March 2000. Judgment was reserved. 5 As a result of the reception by this Court, without objection, of evidence additional to that which was before the trial judge, the plaintiff established that on 13 February 2001 his solicitors wrote the following letter to the Associate to the Chief Judge of the District Court: "The hearing in the matter commenced before Judge English on Wednesday 25 August 1999 and was adjourned part heard on Friday 27 August 1999. The hearing resumed on 13 March 2000 and concluded on 14 March 2000. Judgment was reserved and to date we have heard nothing further in relation to the matter. Our client has expressed his increasing concerns that judgment has not as yet been delivered. We would appreciate it if you would make inquiries so that we can notify our client as to when judgment might be delivered." 6 On 14 February 2001 the Chief Judge replied to say that the trial judge "anticipates listing this matter for judgment during the week commencing 19 February, 2001." 7 On 6 March 2001, the trial judge, who was then the presiding judge in Gosford, delivered in Gosford reasons for her judgment dismissing the Statement of Claim and ordering the plaintiff to pay the defendant's costs. The plaintiff before this Court described this as an "ex tempore judgment": it was in fact apparently simply delivered orally as distinct from being handed down in writing. 8 Despite her conclusions on liability, the trial judge adopted a sensible course, which events have revealed to be particularly useful in this case, of giving a brief indication of her opinions on general damages, damages for economic loss, treatment expenses and a Griffiths v Kerkemeyer component. 9 The plaintiff appealed on both liability and quantum. 10 When the plaintiff filed his written submissions dated 3 August 2001, he abandoned the appeal so far as it went to quantum. 11 For reasons to be given below, there is no alternative to the great evil of ordering a new trial. The parties have agreed, and it was sensible for them to have done so, that that new trial can be limited to liability, since it is possible, in the light of the trial judge's conclusions about heads of damage, to arrive at a precise figure for damages should that new trial result in a verdict for the plaintiff. It is important to the process of fact-finding at the new trial that it should not be tainted by any unnecessary observations about the evidence emanating from this Court. The reasons why there should be a new trial are, in the circumstances, capable of limitation within a narrow compass. It is accordingly neither necessary nor desirable to examine every one of the numerous grounds of appeal on which the plaintiff relies or every one of the numerous submissions advanced in support of them. But it is desirable to indicate briefly the nature of the plaintiff's approach after considering the character of the case.

The character of the case 12 The plaintiff had since July 1995 been a self-employed cleaner. He worked seven nights per week. He generally began work between 10.30 and 11pm and finished at about 4am. 13 On 12 December 1995 the plaintiff awoke at 9pm. At about 10.20 or 10.30pm he was driving from his home in Yagoona in an easterly direction along Stony Creek Road to Mascot, where he had to clean a MacDonald's outlet at the Domestic Airport. 14 It is common ground that the accident happened near Bexley Golf Course, which lay to the right of Stony Creek Road as the plaintiff drove along it. At that point Stony Creek Road had two easterly lanes and two westerly lanes. Opposite the Clubhouse the road was straight and flat. After the road passed the Clubhouse, it descended and curved to the right before straightening and flattening out again. 15 It appears to have been common ground that the road was well lit, that the road surface was safe, and that the weather was fine. Though the defendant said in evidence that he was doing 65 kilometres per hour in a 60 kilometre per hour zone, it seems that speed was not a material cause of the accident. 16 The plaintiff's evidence was that after he had passed the Clubhouse and commenced to descend the hill, and whilst negotiating the right hand curve, the defendant's semi-trailer travelling in the opposite direction crossed the double line and struck his vehicle. 17 The defendant's evidence was that the collision occurred further to the west, on the straight section of road outside the Clubhouse, and was caused when the plaintiff's vehicle crossed onto the incorrect side of the road, striking the offside front of the defendant's vehicle. 18 Thus the defendant's evidence was to the contrary of the plaintiff's evidence in two respects - the location of the point of impact and the cause of the impact. 19 It is common ground that after the accident the plaintiff's car proceeded in an easterly direction before hitting a telegraph pole on the defendant's side of the road: it ended up facing west, not east. 20 There was only one witness to any part of the events, Karen Dunn. She had been following the defendant's vehicle. She did not in terms claim to have seen the actual collision, but she did see sparks coming from the plaintiff's vehicle. There were parts of her evidence which afforded a basis for the plaintiff contending that they supported his evidence as to the place of impact, while there were other parts of her evidence which afforded a basis for the defendant contending that she supported his evidence on the cause of the collision. These latter parts were parts where she said she never saw any part of the defendant's vehicle cross the centre line. She also gave the following evidence: "Q. Now you weren't in a position to see where the front of the semi trailer was going, in other words the prime mover, were you? A. That's right. Q. You could only see the back of the semi trailer? A. Yes. Q. So the front of the semi trailer, that is the front of the prime mover, could well have crossed the centre line without you noticing it, would you agree with that? A. Possible, yeah." This testimony led to a submission by the plaintiff to this Court that Miss Dunn's evidence should be left out of account. While the defendant had a competing submission, it was important to the plaintiff's argument that the trial judge made no express reference to the evidence just quoted. 21 There was also evidence from Senior Constable Mood, and from Badawi Hadid, the plaintiff's son, who each examined the area of the accident soon after it occurred. Their evidence afforded a basis for the plaintiff to contend that it supported his evidence in relation to the place of impact. 22 The place of impact had a double significance. It had a general significance in relation to the reliability of the parties, for any evidence tending to confirm the testimony of one party or the other on that question would also assist in a favourable view being formed of the testimony of that party on the cause of the collision. But the place of impact also arguably had a significance in relation to the cause of the collision. This was because if the plaintiff were right, it is easier to understand why the defendant might have committed an error of judgment in letting his truck drift across the centre line while not taking the left hand curve of the road at that point. 23 Despite the major damage to the plaintiff's car and the significant damage to the side of the defendant's vehicle, and despite the sparks seen by Karen Dunn, the accident left few visible traces, at least so far as the evidence goes. The plaintiff's son noticed some debris on the hill, but Senior Constable Mood's notebook did not record any. Nor did anyone notice any scraping, gouging, indentations or marks on the road. The defendant said he left skid marks when he applied his brakes after the collision. There is no independent evidence of these skid marks. 24 The plaintiff called expert evidence from Bruce John Hazel. His first report of 27 April 1999 concluded, after an analysis of the damage to the vehicles, and in the light of certain principles of physics which he described, that the plaintiff's car was still on the correct side of the road when the collision occurred. His second report concluded that the collision occurred at the location described by the plaintiff. 25 The factual inquiry confronting the trial judge was potentially an extremely difficult one because of the lack of direct witnesses and because of the lack of physical evidence. While the plaintiff's evidence on the location of the impact was supported by his son, Senior Constable Mood, Miss Dunn and Mr Hazel, there was no evidence apart from Mr Hazel supporting his evidence on the reason for the collision. The respective credibility of the plaintiff and the defendant thus became crucial. The plaintiff's version was confirmed by his near contemporary account to his wife of what had happened. The defendant's version was confirmed by his near contemporary account to Senior Constable Mood and by later accounts. But these respective accounts did no more than show that whether the plaintiff or the defendant was deliberately inventing a version, or whether the plaintiff or the defendant was, without deliberate invention, radically mistaken in his impressions, the invention or mistake arose at the earliest stage and was no afterthought. 26 The trial judge summarised the evidence of the witnesses. She said she preferred the evidence of the defendant and Miss Dunn to that of the plaintiff, his wife and his son. She set out various aspects of the plaintiff's evidence and of the preparation of his case which she found unsatisfactory. While some of the points she made were clear and understandable, others were less so. She rejected Mr Hazel's evidence for various reasons. She criticised the plaintiff for having failed to subpoena photographs supposedly taken and a report supposedly made by accident investigation officers from the Road and Traffic Authority, and drew an adverse inference from that failure. 27 Though the trial judge preferred the evidence of the defendant and of Miss Dunn to that called by the plaintiff, she did not deal with two aspects of the defence evidence. The first was Miss Dunn's concession quoted above. The second was that though the trial judge devoted considerable attention to the deficiencies in the plaintiff's testimony she said nothing specific one way or the other about the defendant's. Yet the defendant had conceded that his log book for the evening of 11 December 1995 was incorrect. It recorded that he left Melbourne at 3pm, reaching Albury at 7pm, that he stayed there until 9pm, and that he then drove to Yass which he reached at midnight. It recorded his departure from Yass at 2.30am and his arrival at Sydney at 5.30am. The defendant had testified that he reached Sydney at 2am on 12 December 1995, and after unloading his truck, slept until 8am; that he then slept and rested from after lunch until 8pm; and that after loading his truck, he commenced his journey back to Melbourne before it was interrupted by the accident. If the log book were correct, the opportunities for sleep would be reduced and the fatigue of the defendant by 10.30pm on 12 December 1995 would be greater. The defendant in cross-examination, however, said that the log book entries were incorrect, and he accepted that that was dishonest. The trial judge did not specifically mention this evidence.

The plaintiff's arguments 28 The plaintiff's oral arguments to this Court opened by placing considerable emphasis on a matter which played a much more minor role in the Notice of Appeal and in the plaintiff's written submissions. This concerned the delay of about one year from the time when the trial ended to the time when judgment was delivered. The plaintiff drew the court's attention to the following authorities. 29 Goose v Wilson Sandford & Co (unreported, 13 February 1998) was a case in which the trial judge had reserved judgment on 13 July 1994, but did not deliver judgment until 1 April 1996 - about twenty-one months. In the trial, opening submissions lasted two days, the evidence lasted seventeen days, and closing submissions lasted eight days. There were daily transcripts. The documentary evidence was "huge". The English Court of Appeal (Peter Gibson, Brooke and Mummery LJJ) referred to Rolled Steel Ltd v British Steel Corporation [1986] Ch 246, in which Lawton LJ criticised reservation for eight months after a nineteen day trial, and Bishopsgate Investment Management Ltd v Maxwell [1993] BCC 120 in which the English Court of Appeal, speaking through Hoffmann LJ, said that a five month delay after a five day trial was excessive. Their Lordships then said: "As the judge himself was the first to recognise, a delay of this magnitude was completely inexcusable. The Plaintiff, who was not a young man, was claiming that Mr Wilson's fraudulent conduct had been causative of his financial ruin. Mr Wilson for his part was a professional man charged with serious professional misconduct amounting to fraud. Both parties were entitled to expect to receive judgment before Christmas 1994 at the very latest. The fact that they were obliged to wait another year and a quarter, even allowing for the judge's illness, is wholly unacceptable. The plaintiff's first ground of appeal was that the court should infer that the judge had forgotten large parts of the essential facts and evidence in the case, and that he had no clear recollection or impression of the demeanour of the witnesses of fact or their credibility by the time he came to deliver his judgment. Our attention was drawn to certain mistakes he made, to which reference is made in this judgment. We were also told that the judge mislaid a detailed chronology on which he had made manuscript notes of counsel's opening submissions on the facts and also the written closing submissions prepared by counsel for Mr Goose. Replacement documents were requested and supplied in November 1995, but the judge's own notes could not be replaced. In these circumstances we were invited to find that the judge's misdirections had occasioned such a substantial wrong or miscarriage of justice that we should order a new trial (see Order 59 Rule II). Both parties had incurred very heavy costs in the original trial, and the Plaintiff was and is in receipt of legal aid. There are no provisions enabling a court to make an order out of central funds to compensate the parties in a situation like this. These considerations illustrate some of the very serious problems that are likely to arise if a judge delays giving judgment in this extraordinary way. A judge's tardiness in completing his judicial task after a trial is over denies justice to the winning party during the period of the delay. It also undermines the loser's confidence in the correctness of the decision when it is eventually delivered. Litigation causes quite enough stress, as it is, for people to have to endure while a trial is going on. Compelling them to await judgment for an indefinitely extended period after the trial is over will only serve to prolong their anxiety, and may well increase it. Conduct like this weakens public confidence in the whole judicial process. Left unchecked it would be ultimately subversive of the rule of law. Delays on this scale cannot and will not be tolerated. A situation like this must never occur again. Because of the delay in giving judgment, it has been incumbent on us to look with especial care at any finding of fact which is now challenged. In ordinary circumstances where there is a conflict of evidence a judge who has seen and heard the witnesses has an advantage, denied to an appellate court, which is likely to prove decisive on an appeal unless it can be shown that he failed to use, or misused, this advantage. We do not lose sight of the fact that the judge had transcripts of the evidence, as well as very extensive written submissions from counsel. But the very fact of the huge delay in itself weakened the judge's advantage, and this consideration had to be taken into account when we reviewed the material which was before the judge. In a case as complex as this, it is not uncommon for a judge to form an initial impression of the likely result at the end of the evidence, but when he has come to study the evidence (both oral and written) and the submissions he has received with greater care, he will then go back to consider the effect the witnesses made on him when they gave evidence about the matters that are now troubling him. At a distance of 20 months, Harman J denied himself the opportunity of making this further check in any meaningful way." 30 The plaintiff then referred to R v Maxwell (unreported, 23 December 1998), in which a judge of this Court was criticised for having reserved judgment for ten months in a murder case which apparently lasted about three weeks. The Court of Criminal Appeal (Spigelman CJ, Sperling and Hidden JJ) set out the second last and last paragraphs quoted above from Goose v Wilson Sandford & Co, and adopted them. They added, in language which the plaintiff submitted was equally applicable to civil cases: "Public confidence in the judicial process is of particular significance in the administration of the criminal law. Indeed one of the most important aspects of the welfare and stability of Australian society is the hard earned, but widespread, belief that judges administering the criminal law do so with competence, fairness and impartiality. The administration of criminal justice is of great significance in the preservation of the liberty of Australian citizens. This Court must be rigorous in ensuring that judicial conduct in the course of criminal trial does nothing to disappoint the high expectations which the community as a whole has of the judiciary in this regard." They also said that the considerations described by the English Court of Appeal: "have informed this Court in its review of the reasons for judgment given by his Honour, specifically the statements made by his Honour in his judgment of a general assertive character, which in the normal course would be accepted as encompassing a detailed consideration of the evidence before him, have been treated by us with reserve. Indeed, a delay of the order of ten months is, of itself, such as to require a more comprehensive statement of the relevant evidence than would normally be required, in order to manifest, for the parties and the public, that the delay has not affected the decision. For the reasons we will give below, his Honour's judgment is unsatisfactory in this regard. His Honour failed to give reasons of a character which the law required him to give in all the circumstances of the case, including the circumstances of the delay between the trial and delivery of judgment." 31 Later they said, after setting out the statutory duty to give reasons in criminal cases tried without a jury created by the Criminal Procedure Act 1986 (NSW) s 33(2), the High Court's analysis of it in Fleming v R (1998) 197 CLR 250 at [22], and McHugh JA's analysis in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278 of the judicial duty to give reasons: "These principles are applicable to the instant case. Indeed, for the reasons we have given above, the delay in delivery of judgment made it even more necessary than usual for his Honour to err on the side of thoroughness in the exposition of his reasoning process. The Appellant had a right to expect that the arguments put on his behalf would be dealt with in such a way that he could be satisfied that they had been understood and, either accepted, or, if rejected, that the rejection was based on a clear and rational process of reasoning. Furthermore, the public interest in the administration of criminal justice required that his Honour should have put beyond question any suggestion that the substantial delay of ten months had affected his Honour's understanding of the scope and range of issues, and to demonstrate that all relevant facts had been properly and carefully assessed and all pertinent submissions dealt with. As we have said above, matters that could have been dealt with by means of a brief summary reference in a decision given at a time when all parties would have accepted that relevant evidence and submissions were fresh in his Honour's mind, could not be dealt with in the same way after a delay of the magnitude which occurred in this case." 32 The Court of Criminal Appeal then quoted the following passage from Mahoney JA's judgment in a case in this Court, New South Wales Medical Defence Union Ltd v Crawford (No 2) (unreported, 30 June 1994): "His Honour accepted the Todd-Taylor evidence. He referred in terms to the conclusions which they expressed. Ordinarily I would regard myself as constrained to accept those conclusions. Each of the psychologists gave evidence before the judge. I would ordinarily accept that, absent indications to the contrary, the judge was influenced in his acceptance of witnesses by what he saw of them. … The trial judge's advantage operates, or may operate, in respect of expert witnesses. … But an appellate court may depart from the conclusions of a trial judge where, inter alia, it appears that he has not made use, or proper use, of the advantage that he had. In the present case the trial judge did not refer in relevant respects to the Evan Davies' evidence. He did not indicate his understanding of that evidence, how he contrasted it with the Todd-Taylor evidence, or why he preferred the latter to the former. It is not necessary that a judge, in his judgment, refer to every aspect of the case or every step in the reasoning to his conclusion … nor should it be readily inferred that, because evidence is not referred to, it has been overlooked. … Such an inference is warranted only where a reference to the evidence is to be expected. Where the purpose of the judgment is to articulate conclusions rather than to detail reasoning or where, as here, the facts are complex and the judgment is necessarily long, such an inference will not ordinarily be drawn. However, the contrast of the psychometric evidence in this case is of considerable significance. It was, in my opinion, to be expected that the judge would deal with it. As I shall indicate the acceptance of the Evan Davies' evidence would not be determinative of the existence of brain damage but it would be a matter of considerable importance in assessing the whole of the evidence on this issue. If he did not in fact deal with it, he would, I think, have failed properly to assess all of the evidence. … A judge must, in deciding an issue of fact, take into account all of the evidence that is relevant to it. But he may in some circumstances put aside evidence where that is simply unacceptable. But the Evan Davies' evidence was not evidence which could simply be put aside as a mere preliminary to the acceptance or rejection of the Todd-Taylor evidence. Unless it was rejected or at least significantly qualified, it was difficult for the judge to accept the Todd-Taylor evidence as the judge did. In the circumstances I do not think that the Evan Davies' evidence can be put aside as the judge did. On the face of it, it was no less acceptable than the Todd-Taylor evidence. There was no reason why a person approaching the diagnosis of brain damage in this case would not give credence to it. The main psychometric witnesses did not, for example, merely put it aside as inherently flawed or for reasons of that kind. Therefore it would be rejected in the Todd-Taylor evidence referred if, essentially, Dr Evan Davies was to be rejected. … I am satisfied that that is not the reason why the judge put his evidence aside in this case. What a judge, including this judge, does is to be inferred from the judgment and its context. If the judge [concluded] that Dr Evan Davies' evidence was to be put aside for a reason of this kind, he would I think have said so. … The conflict of psychometric evidence was too important to be ignored or to be left to an Abalos inference." 33 The next case to which the plaintiff referred was a decision of this Court, Moylan v The Nutrasweet Co (unreported, 24 November 2000). In that case the evidence at trial was taken between 24 January and 13 September 1996. Oral submissions were heard between 27 October and 23 December 1997. The evidence was voluminous. Judgment was reserved for fourteen months. Sheller JA (Beazley and Giles JJA concurring) referred to R v Maxwell, set out some of the passages quoted above, and held that the trial judge in the case before them had breached the relevant duty. 34 The plaintiff then submitted that at some point the passing of time from the moment when judgments are reserved causes delay to arise which alters the normal approach of appellate courts. In this summary of the plaintiff's submissions, this type of delay is called "operative delay" for short. In cases not affected by operative delay, an appellate court tends not to assume that the mere failure to refer to evidence meant that it had been overlooked, or that other forms of error had occurred. But if there were operative delay, no favourable assumptions could be made, and it was up to the trial judge to put beyond question any suggestion that he or she had lost an understanding of the issues. Something should be said about how the possible effects of delay on the judicial process have been overcome. Some explanation should be given as to how the trial judge had recorded or recaptured impressions formed of witnesses at the time they testified. A judge might, for example, say "I have a perfect recollection of all the characters in the trial" or "I have contemporaneous notes of my impressions". The plaintiff submitted that the delay here went beyond any minimum period of "operative delay". The plaintiff submitted, indeed, that the delay was "beyond the pale". But the trial judge made no statements of the kind just indicated, and no assumption in her favour that she had retained any relevant impressions could be made. 35 Next, the plaintiff submitted that the trial judge was obliged to demonstrate that all the facts had been carefully assessed; yet some were admitted and there were mistakes in relation to others. It was not possible to make favourable assumptions that the omitted matters had been considered or that the mistakes were insignificant. 36 The plaintiff went on to submit that the delay had disabled the trial judge from effectively checking whatever impressions of demeanour she had against a reading of the evidence. 37 Finally, the plaintiff submitted that the trial judge was under a duty to be extremely thorough in setting out her reasoning processes, in showing that the plaintiff's arguments were understood, and in demonstrating that, if they were rejected, they were rejected for clear reasons. 38 The other oral submissions of the plaintiff, and almost all his written submissions, were dedicated to a detailed attack on many parts of the trial judge's reasoning. It must be said that some of the plaintiff's arguments were more forceful and significant than others. Because of the need to order a new trial at which arguments similar to those advanced to this Court may have to be considered, it is unnecessary to deal with all of the plaintiff's arguments, or with the defendant's responses to them. But before considering the reasons why a new trial should be ordered, it is convenient to say something about the arguments based on delay.

Delay 39 This Court has not been told why the trial did not finish within the three day period during which it initially ran. Yet so far as the evil consequences of delay came to pass they arose in part from the fact that the evidence of the plaintiff and the defendant was given on 25-27 August 1999, more than eighteen months before judgment was reserved, and more than six months before the evidence of Miss Dunn and Mr Hazel was given. This is a useful reminder that justice, being something administered by human beings, can never be perfect, and that the imperfections of this case cannot all be laid at the foot of the trial judge. 40 One of the curious features of the delay in this case is that it is very rare for judgments in the District Court to be reserved for long, and quite common for judgments to be given either the moment that oral argument concludes or a day or two later. In consequence, District Court judgments are often disjointed and difficult to follow. It is not uncommon for them to be criticised on those grounds, and for them also to be criticised on the ground that the judges have not considered the issues sufficiently. 41 Unless there is contrary consent from the parties, the District Court has a maximum monetary jurisdiction of $750,000. Relatively few personal injuries sound in higher damages. The applicable law, whether it be the common law or the common law as modified by various statutory capping systems, is often obscure or difficult, and is often in a state of flux. 42 Personal injury trials in the District Court will no doubt move closer to some abstract conception of justice if, among other things, the following conditions were satisfied. (a) Proceedings were instituted, and brought to trial, with the utmost expedition.

(b) The duration of cases estimated by the parties corresponded with their actual duration.

(c) All necessary cross-examinations of witnesses, including medical witnesses, were conducted.

(d) The addresses of counsel comprehended all the elements of the case which the party retaining that counsel desired the court to consider, and left none over for future deployment in an appeal, perhaps conducted by different counsel.

(e) The addresses of counsel dealt fully with the evidence and the law relevant to each element of the case propounded.

(f) A transcript of each day's evidence were available that evening or early the following day.

(g) The trial of a matter proceeded without distractions from other proceedings.

(h) At least in cases involving legal and factual complexity, some opportunity were given to judges to reflect on the course of proceedings with the aid of transcripts. 43 However, it is highly unlikely that in any case all these conditions will be satisfied, and it is rare for most of them to be satisfied. Many proceedings are instituted years after the events in issue, and after limitation periods have had to be extended. Many are not brought promptly to trial. Some have to be adjourned in mid stream. Crucial conflicts in expert evidence, particularly medical evidence, are not explored in oral evidence. Addresses are often perfunctory, leaving the court to make what it can of complex documentary material: the late C L D Meares used to lament that the great tradition of common law advocacy in New South Wales had degenerated to a competition between counsel to determine who had the most effective flourish of the hand with which to accompany the hallowed incantation: "Your Honour, I tender the medicals". The judges must make their own notes of the evidence. Proceedings are frequently interrupted by the interposition of other matters. And the pressure to deliver judgments means that even the hour or two after a case finishes cannot be devoted to considering that case while it is wholly fresh in the memory, but must be used in the early stages of the next trial. 44 Many of these vices were present here. At the moment when the trial judge reserved judgment, she was considering events that had happened more than four years earlier, though there is nothing to suggest that either party, or the court, was responsible for that delay. The trial had been interrupted for six months. It is not possible to be sure how far the parties' arguments before the trial judge went, because they have not been transcribed, no evidence about them has been filed, and apart from one or two concessions which the plaintiff extracted by means of questions without notice to the defendant before this Court, no agreed position exists. The trial judge quotes from the transcript of the plaintiff's evidence, but it is not clear when any transcript was produced: it seems that the transcript of the August 1999 hearing days was not available until late October, and no transcript was available of the hearing on 14 March 2000 until perhaps as late as 17 April 2001. 45 One way of avoiding the dangers associated with delay is to adopt a routine practice of delivering unreserved judgments. It is a technique with which famous names can be associated. 46 Sir William Page Wood VC, it is said, favoured the delivery of unreserved judgments because he found writing "extremely injurious to my health". According to Viscount Sumner's account in the Dictionary of National Biography: "His practice, only once departed from, was to deliver oral judgments only, and, thus delivered, they were occasionally ill-arranged and fragmentary. On this habit Lord Campbell, when lord chancellor, chose to animadvert severely in December 1860 in his judgment in Burch v Bright on appeal from Wood; but on 22 Dec. the other vice- chancellors and the master of the rolls united in a letter to Lord Campbell protesting against this mode of indirectly lecturing a judge of the court of chancery, which obtained him amends from the chancellor." 47 His habits were followed a generation later by Sir George Jessel. The Dictionary of National Biography states: "However impatient of technicalities and anomalies, Jessel was nevertheless in practice the most practical of lawyers. His mind was a veritable magazine of case-law. His knowledge of affairs was extraordinarily wide and accurate, his apprehension so quick as to seem like intuition. Physically he was indolent, and extremely averse to writing, with which his powerful memory enabled him to a great extent to dispense, so that his briefs usually left his chambers almost as clean as they entered them. Though he rarely took notes while at the bar, his speeches in reply to his opponents' arguments were nonetheless effective, and it commonly happened that the plaintiff's counsel had hardly opened his case before the master of rolls was pressing him with questions which showed that he had already mastered it in all its bearings. His mind once made up he became rather impatient of argument, and was sometimes unduly brusque in manner (except towards young and inexperienced counsel, to whom he was always very considerate), partly no doubt from sheer weariness, but mainly from an instinctive love of dispatch. Never while at the rolls court did he reserve judgment - not even in the great Epping Forest case ( Commissioner of Sewers v Glasse ) in 1874 [19 Eq 134), where the arguments lasted twenty-three days and the evidence filled several folio volumes - and only twice, and then only at the request of his colleagues, in the court of appeal. His judgments, which were always remarkably full and lucid, were rarely appealed from and still more rarely reversed. His self-confidence was very great. 'I may be wrong', he said once while solicitor-general, 'and sometimes am, but I never have any doubts.' This confident habit of mind with his extraordinary love of dispatch led him to describing with perhaps undue depreciation Lord Eldon as 'the dubitative chancellor', who might have sat to a painter for the impersonation of the law's delay." His judicial career lasted less than ten years. He died at the age of fifty-nine five days after hearing his last case. 48 A generation later still, MacKinnon LJ gave the following account in the Dictionary of National Biography of Viscount Sumner's career as Hamilton J in the King's Bench Division from February 1909 to October 1912: "While there he never once reserved judgment: but what he said at the close of every case, however complicated or difficult, when taken down in shorthand, was better than the laboured writing of other judges, while it scintillated with phrases that none of them could rival by the consumption of midnight oil." 49 The practice can still be employed with success even amidst the complexity of modern litigation. In Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549, Roskill J conducted a trial on 15, 16, 19, 20 and 21 December 1966. He delivered a judgment dealing with complex facts and difficult law immediately, its opening words (at 556) being: "Were it not that it is now rather later than the eleventh hour on the eve of the Christmas vacation I should have preferred to put my judgment in this case into writing in view of its importance to the parties and the number of difficult points to which it gives rise, but having regard to the admirable arguments to which I have listened on both sides and to the conclusions which I have reached I propose to give my judgment at once, notwithstanding the obvious attendant disadvantages of so doing." The loser appealed. According to Lord Denning MR, counsel for the appellant, at the start of his argument, "paid tribute to the judgment of Roskill J. He said it was a tour de force. I agree. It was delivered straight away after a five-day hearing at the end of the term" (at 580-1). But this language suggests that even in England reservation is now the rule, not the exception. 50 Attractive though the practice of delivery of ex tempore judgments can be, it has many critics. Vigorous and combative methods, lack of regard for tender feelings, and impatience need not necessarily accompany the practice of giving unreserved judgments, but they commonly do. The intense concentration called for in seeking to understand every nuance of the case as it happens - the desire then to marginalise and discount the irrelevant - the need to remember earlier aspects and balance them against later ones - the insistent pressure of the next case waiting to be heard - naturally engender those characteristics. Some litigants do not like them, and if they fail they use them as the basis of a bias allegation. Further, unreserved judgments are more often expressed in the manner attributed to Sir William Page Wood than the manner of Sir George Jessel or Hamilton J. The faults of expression typical of unreserved judgments are often said on appeal to manifest errors of thought. 51 Sir Frank Kitto, in "Why Write Judgments?", said: "But many a Judge well worthy of the name needs, I suggest, to tell himself more often than he does that he ought to reserve his judgment. It is true that a real need for urgency often compels the acceptance of the disadvantages that lie in a speedy decision and an impromptu statement of reasons, but too often the temptation to be rid of the case, or to get through the list, or (dare I mention it?) to be thought an inheritor of the mantle of a Jessel or a Harvey thrusts aside the warning finger of caution; and the judicial task, worthy at all times of performance at the best standard the Judge can reach, is performed poorly in consequence. The Judge's office is to that extent brought low. I would urge that wisdom, the caution that experience constantly teaches, a proper sense of responsibility and a due modesty in the estimation of one's own capacities join to insist that judgment be reserved in every case, at least in the higher Courts, where decision hangs upon a balanced assessment of evidence or upon a thoughtful application of legal principles. Surely the maturer in judgment a Judge becomes the more receptive he should be to the imperious urging of a still, small voice whispering 'Reserve thy judgment!' To do so will mean delay, but while in some cases there is truth in the maxim that justice delayed is justice denied, in many it is true that hurried justice is not justice at all, in many more that it is not justice done sufficiently, and in still more that it is not justice done manifestly. I recall that on a famous occasion Sir Owen Dixon, answering a request for urgency made by the then Attorney-General of the Commonwealth, said: 'It is more important that this case be decided rightly than that it be decided soon'. Less neatly but with equal truth it may be said that in the great majority of cases it is more important that the purposes of an open statement of reasons should be well and truly achieved than that the parties and the Judge should have a quick end to their current preoccupation. Quickness of decision is no substitute for thoroughness in consideration and the utmost care in the formulation of reasons. You may say that these things may be overdone. Of course they may. You get your easy cases, your obvious cases, though they are not as frequent as a self-confident Judge is apt to enjoy telling himself. I am suggesting no rigid rule, but a general truth. My proposition is that wisdom lies in keeping in general to the course of carefulness, though recognizing cases when they arise which require finality urgently." He gave numerous other reasons for reserving judgments, particularly in appellate courts. He also recorded arguments in favour of not reserving them: "Sir Owen Dixon once taunted Sir Hayden Starke. Starke had said he would put a case away and let it simmer. Dixon replied: 'You mean put it away until you have forgotten the difficulties'." 52 Accordingly the trial judge, like all District Court judges, was confronted with a dilemma. Had she delivered judgment ex tempore, or after only a short period of reservation, she would have been exposed to the type of criticism indicated above. On the other hand, by seeking to prevent those disadvantages arising, she instantly created the risk of delay. There are only a limited number of hours in the working day even of a District Court judge, and if many of them are consumed in hearing cases on every working day, the totality of whichever judgments have been reserved must inexorably tend to rise. If it is not possible for District Court judges to be given more time in which to write reserved judgments, the dilemma facing members of the court will continue to exist. The position of the trial judge in this case must thus attract considerable sympathy.

Did the trial judge err? 53 The case boiled down to a contest between the reliability and credibility of the plaintiff and the reliability and credibility of the defendant. The defendant could point to some apparent difficulties in the plaintiff's evidence, but there were arguments on which the plaintiff could have relied, probably did rely, and certainly does now rely, favouring a verdict for the plaintiff. Similarly, though the defendant's actual evidence was prima facie capable of acceptance, there were suspicions attaching to his version which junior counsel for the plaintiff rightly raised with him in cross-examination. In her reasons for judgment the trial judge has informed the plaintiff of some reasons why she rejected his evidence. Though some of those reasons are more forceful than others, what matters is how that reasoning relates to the defendant. The trial judge did not say why she "preferred" the evidence of the defendant. Before this Court, the defendant contended that once the trial judge had rejected the plaintiff as a witness, it was simply unnecessary to deal with the defendant, or, alternatively, that there was less need to give detailed reasons for accepting the defendant. The difficulty with these contentions is that there was an inversely proportional relationship between the parties in point of creditworthiness. Even if, considered by himself, the plaintiff might be thought to lack credit in some ways, that conclusion could be overcome if the defendant was not capable of acceptance, because that circumstance would of itself tend to strengthen the plaintiff. To "prefer" one item over another is to reach a comparative conclusion after weighing the merits and demerits of each. An evaluation of the merits of a conclusion of preference depends on what reasons it rested on. The failure to give reasons for preferring the defendant was compounded by the trial judge's consequential failure to deal with the dilemma created by the defendant's log book. If the log book were correct, there was reason to believe that the defendant, contrary to his evidence in chief, was short of rest. If the log book were incorrect, the inconsistency with the evidence in chief was removed, but the assessment of other parts of the defendant's evidence had to be carried out in the light of the defendant's admitted dishonesty in relation to the log book. There were ways of resolving these difficulties compatibly with the trial judge's conclusion, but it is not possible to be sure that the trial judge was conscious of the difficulties or, if she was, which way she chose to resolve them. 54 A similar problem exists with Miss Dunn. Miss Dunn's evidence in chief, if accepted, supported the defendant's evidence and the trial judge's conclusion as to the cause of the collision. But the concession she made in cross-examination might - not must - have marginalised her evidence in chief. Again, there were ways in which Miss Dunn's evidence taken as a whole could be seen as supporting the defendant's position and the trial judge's conclusion. But the concession did create difficulties, and it is not clear if they were recognised, or, if recognised, how they were overcome. 55 The difficulties created by the defendant's log book evidence and Miss Dunn's concession in turn had to be analysed in relation to the evidence called by the plaintiff which supported the plaintiff's testimony as to the location of the impact and hence, indirectly, his evidence on the cause of the collision. No analysis of this kind has been recorded by the trial judge. 56 These gaps in the trial judge's reasons for judgment reveal error.

The need for a new trial 57 Should this Court engage in a fact finding process for itself? The plaintiff submitted that there should not be a new trial, but that this Court should give a verdict for the plaintiff. The plaintiff argued that any deficiencies in his credibility were so immaterial, and the different types of support for him which did not turn on credit questions so strong, that this Court could decide for itself that his evidence was sound. The plaintiff put an alternative argument: that in view of the strength of the evidence, properly considered, which underpins the plaintiff's case, there was no utility in a new trial. 58 It is not necessary to go to the detail of these arguments, because there is an insuperable obstacle confronting the plaintiff's submissions in the circumstances of this case. A verdict for the plaintiff would depend on rejecting the reliability and quite possibly the honesty of the defendant. In our system of oral trial, it is not customary to disbelieve witnesses whom the court has not had the opportunity of seeing and hearing. The plaintiff's case may or may not be strong, but neither his case, nor the defendant's case in answer to it, has yet been properly considered because of the miscarriage of the trial. That miscarriage could not be cured by a flawed reconsideration of the issues by this Court without the advantages of a trial court in observing the witnesses. 59 What then is the remedy for the error affecting the trial? The Supreme Court Rules Pt 51 r 23(1) forbid the ordering of a new trial unless some substantial wrong or miscarriage has been occasioned by the error established. The failure to give reasons here in the respects indicated is a substantial miscarriage in the circumstances of this case. Part 51 r 23(2) permits a new trial on liability alone without interfering with the trial judge's reasoning on damages. The precise quantum can be calculated by the judge at the second trial if that judge is of opinion that there should be a verdict for the plaintiff.

The role of delay 60 It is not necessary to decide whether the point on which the appeal succeeds was the result of delay. The error established would be just as much an error if it had occurred in an ex tempore judgment, a judgment delivered after a month's reservation, or a judgment delivered after two years' reservation.

Orders 61 It perhaps goes without saying that, in view of the trial judge's adverse credit findings about the plaintiff, and without any disrespect to her, the new trial should be conducted by another judge. It is not, however, necessary to make any order to that effect. 62 The following orders are proposed. 1. The appeal is allowed.

(a) that the parties agree that it will be possible to calculate the damages payable by the defendant to the plaintiff, should there be a verdict for the plaintiff at the new trial, in consequence of the findings made by the trial judge on that subject at the first trial; and (b) that if the plaintiff succeeds in obtaining a verdict at the new trial, the trial judge at that trial will award damages accordingly.

5. The respondent is ordered to pay the appellant's costs of the appeal.

6. The respondent is to have a certificate under the Suitors Fund Act , if qualified.

7. The costs of the first trial are to be within the discretion of the judge conducting the new trial. 63 GROVE J: I agree with Heydon JA.

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