(c) order that the testimony of any witness examined at the former trial may be read from the transcript, instead of the witness being again examined."
41 When applying Pt 51 r 53, the Court must have regard to s 56 of the Civil Procedure Act 2005 (NSW) which provides that the overriding purpose of the Act and of the UCPR is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings": Tory v Megna [2007] NSWCA 13, at [28], [30], per Spigelman CJ (with whom Beazley and Bryson JJA agreed). Tory v Megna was an appeal which arose from a jury trial, but the principle applies to appeals from non-jury trials.
42 Doubt has been expressed as to whether the constraint imposed by UCPR Pt 51.53(1) is consistent with the breadth of the power conferred by s 75A(10) of the Supreme Court Act: Mastronardi v State of New South Wales [2007] NSWCA 54, at [74], per Basten JA (with whom Ipp and Campbell JJA agreed). However, as Basten JA pointed out (at [75]), the possible inconsistency is unlikely to have practical consequences. This is so because the:
"requirement that, for an appeal to succeed, actual injustice must be demonstrated is not inconsistent with the broad power conferred on the Court by s 75A. The general principle can apply, just as the 'costs follow the event' principle applies in relation to the unfettered discretion to award costs, so long as it does not become a rigid rule to be applied in the absence of some special circumstances indicating otherwise" (at [80]).
43 Basten JA observed in Mastronardi (at [81]) that, at first blush, Pt 51 r 53 creates a dilemma. On one view, the Court cannot be affirmatively satisfied that some substantial wrong or miscarriage has been occasioned by an error if the Court cannot say whether a correct approach would have led to a different result. Yet, as his Honour also pointed out (at [81]), this is precisely the kind of case where a new trial is a relevant option. Basten JA considered (at [82]-[83]) that the dilemma:
"can be avoided by identifying the relevant miscarriage as a failure to provide a trial in which, in a significant respect, the assessment of the evidence was not flawed …
In a trial with a judge alone, the assessment process is not opaque, but is (or should be) exposed in reasons for judgment. If a relevant and material error is revealed, as with an unreasonable criminal verdict, there will be little room for the operation of the constraint relating to a substantial miscarriage of justice." (Emphasis added.)
44 A related question is whether an appellate court, having discerned a significant error in the trial Judge's assessment of the facts, should order a new trial or whether the Court should itself attempt to make findings of fact on disputed matters, in exercise of the powers conferred by s 75A(6) and (10) of the Supreme Court Act.
45 This issue arose in Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816. There, the trial Judge found that the plaintiff, who had been rendered a quadriplegic in an incident occurring on or near a jetty, had deliberately dived into the water and had not been pushed into the water (as he had claimed). The Court of Appeal held that the trial judge had not given adequate reasons for rejecting a large body of evidence suggesting that the plaintiff had entered the water involuntarily. The Court of Appeal found that it was "glaringly improbable" that the plaintiff had entered the water voluntarily. Their Honours ordered a new trial, but directed that it should be conducted on the basis that it had been established, in the plaintiff's favour, that he had lost his balance by being jostled or pushed and, in consequence, had fallen from the jetty.
46 Gleeson CJ (with whom McHugh, Gummow and Hayne JJ agreed) did not dispute that the Court of Appeal had power to make the order it did. His Honour observed (at [15]), however, that the question was not the width of the power but the appropriateness of the manner of its exercise. On any view, there were issues that remained unresolved. The order made by the Court of Appeal related to a particular fact which could not be isolated from all other facts in controversy, including some that depended upon the reliability of the evidence of a number of witnesses. It was in the interests of justice that the judge hearing the retrial should:
"make a fresh appreciation of the whole of the relevant evidence, unconstrained by an artificially isolated assumption that reflects the [plaintiff's] success in the Court of Appeal" (at [20]).
47 Waterways Authority v Fitzgibbon does not necessarily prevent an appellate court, where the trial judge has been shown to have erred on a factual question, from substituting its own findings of fact for those made by the trial judge. It may be that, once the trial judge's error is corrected, the probative evidence on a particular issue points to only one conclusion. Alternatively, if the remaining evidence, although conflicting, presents no issue of the reliability or credit of particular witnesses, the appellate court may be in as good a position as the trial judge to resolve the conflict: cf Warren v Coombes [1979] HCA 9; 142 CLR 531, at 551-552, per Gibbs ACJ, Jacobs and Murphy JJ. Moreover, it is necessary to bear in mind the "overriding purpose" stated in s 56(1) of the Civil Procedure Act. Nevertheless, Waterways Authority v Fitzgibbon suggests that in a case where there is conflicting oral evidence, or where there is an unresolved dispute as to the reliability of evidence, an appellate court should exercise caution before deciding to substitute its own findings for those made by the trial judge.