KASSEM v CROSSLEY & ANOR; KASSEM v KRAYEM & ANOR

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40930/98 CA 40931/98

MASON P HEYDON JA CLARKE AJA

Jamal KASSEM v Roy CROSSLEY & Anor Jamal KASSEM v Souhad KRAYEM & Anor JUDGMENT 1 MASON P: In each appeal, the appellant appeals against orders made in the District Court by her Honour Blackman ADCJ. He seeks a new trial as to damages. 2 The first action arose out of an accident in Parramatta Road on 10 May 1991 when the appellant's car was hit in the rear when it was stationary at traffic lights. Liability was admitted by the respondents, who were the owner and driver of the car involved. There was a live issue as to damages. The appellant recovered a verdict of $226,877.25. 3 The second action, which was tried at the same time, involved a car owned and driven by Mr Krayem and an accident that occurred in Bankstown on 18 July 1994. Again, liability was admitted but damages were not. There was a verdict for the defendant because her Honour concluded that the second accident had no effect on the appellant's lumbar back problem, nor caused any long term neck injury. 4 Her Honour formed a most adverse view as to the appellant's credit. She gave a number of reasons for this, including her observations of the appellant in the witness box, certain inherent improbabilities and inconsistencies between the appellant's evidence and that of other witnesses and other matters set out in the judgment. Whether the decision was also influenced by an irregularly formed view, based on her Honour's observations of the appellant in the courtroom, is the critical matter in the appeal to which I shall return. For the moment, it is sufficient to record that her Honour's strong views about the appellant were determinative of a number of issues in each action. 5 During final addresses at trial, counsel for the defendants in what I have termed the first action, Mr Kelleher, invited her Honour to take account of the appellant's courtroom behaviour. In the context, it is clear that this was a reference to the appellant's capacity to move about in court, as evidenced by his movements during final addresses, as compared with his capacity to move as deposed to in evidence, as recorded in medical histories and perhaps as evidenced by his behaviour in the witness box itself. 6 Exactly what happened thereafter is slightly unclear, because there is no transcript of argument. However, we have the benefit of notes taken by two of the barristers at trial. 7 Ms Sneddon, who was junior counsel for the appellant at trial, led by Mr Wheelahan QC, recorded the following summary of her leader's submissions: Mr Kelleher invited you to view courtroom behaviour - discourage Not put to Drs present in court - will lead into appealable error if you, as trial judge observed in witness behaviour

How can it be said that a Judge can conclude re medical nature - authorities say should put to parties. Urge YH not to do that. 8 Mr Ronzani was counsel for the defendants in the second action. His notes refer to what Mr Wheelahan QC submitted in the following terms: QC - do not make "observations" in Court room: error on issue of fitness for work: medical nature - anyway must declare first, for debate - not put to any doctor that how in box can = work

9 Mr Wheelahan QC, who also represented the appellant on appeal with Ms Sneddon, informed the Court that her Honour did not indicate her intention to have regard to Mr Kelleher's invitation, or otherwise to take any account of what, if anything, she had observed about the appellant's behaviour in the courtroom after the time that he had left the witness box. This I understand was common ground in the appeal. 10 It is also common ground that there was no application to adduce further evidence and no further submissions directed to the subject matter of Mr Kelleher's invitation. 11 Mr Wheelahan QC submits that, in the circumstances, the appellant was entitled to conclude that the matter had been dropped and that the appellant had no reason to suspect that any weight would have been placed upon whatever the appellant did in the courtroom during final addresses. 12 Blackman ADCJ said this early in her reasons for judgment: I have had the opportunity of seeing the plaintiff both in the witness box and in the courtroom. In some cases his answers have been given with confidence and in others there has been a wariness in his mode of reply. He gave his evidence in English and I am satisfied that in just about every instance he did understand the questions. There were times when the answers were not responsive but I do not think that this was because he did not understand the question. There was in one instance an admission which Mr Kelleher, counsel for the defendants in the first case, won from him and which I do not think Mr Kassem understood the implications of. I referred to this at the time. In all other respects I accept his answers as being given in reply to the questions. Mr Wheelahan, senior counsel for the plaintiff, has said that I must not take account of the plaintiff's demeanour in the courtroom to make an assessment of his medical condition. I am not quite sure that I understand why this was said. Certainly I do not set myself up as a medical expert, but I cannot ignore what I have seen. I saw the plaintiff approach the witness box and sit in a very tense manner. On the afternoon of the first day, the plaintiff asked for the opportunity of standing after having given his evidence for some time. I have no doubt that he felt the courtroom ordeal as a strain but I do note that on the last day of the hearing, when the evidence was over and he was no longer, as it were, having to be seen, he was sitting behind his counsel discussing various matters with his solicitor and moving quite freely. This may have been for a variety of reasons and it does not necessarily say that he is acting a part when giving evidence but it is something which I was conscious of. I do not use this as any indication of his medical condition but it does give me food to thought as to his credit.

13 Her Honour then turned to document specific matters relevant to credit arising out of evidence given by the appellant at trial. She then returned to what she termed "the beginning of the story". The facts were set out, interspersed with further particulars of the appellant's lack of credibility. Her Honour then made findings about the appellant's medical condition and other matters leading up to the verdicts in the two actions, to which reference has already been made. 14 The appellant challenges the verdicts on a number of grounds. We have heard argument about one ground only, namely the use to which her Honour put her observations of the appellant's conduct in the courtroom. The principles were not in dispute. The appellant accepts that her Honour could have relied upon her observations of his conduct in the courtroom if she had fairly disclosed her intention to do so before final judgment. The respondents, being the two sets of defendants in each action, accept that the principles of natural justice or procedural fairness apply in this area but they contend that they were observed. 15 In Angaston and District Hospital v Thamm 1987 47 SASR 177 at 178-179, King CJ said: The principle of law which was expressed in Minagall v Ayres and which was accepted by the judges who constituted the court in Jobst v Inglis is expressed in a passage in the judgment of Chief Justice Napier, with whom Justice Travers agreed at 156 of the report. It is as follows: "But while we agree with Hogarth J, we desire to guard ourselves against being understood as laying down any absolute rule upon the subject. It seems to us that it is a matter of what we should regard as `fair play and common sense'. The condition upon which a judge is at liberty to take notice of what he has seen for himself is that the parties should know or be informed of what he has noticed, and have an opportunity of answering or dealing with it."

The rule, as appears from the passage cited is not to be regarded as absolute in the sense that it must be applied rigidly to every observation which a judge might make of a party during the course of a trial outside the witness box. Something will depend no doubt on the circumstances of the particular case and upon the significance of the particular observations. It is clear however that where the judge makes observations of the actions or demeanour of a party, which actions and demeanour are not observable by counsel, and makes use of those observations in a way which has a significant influence upon his decision of the case, he is required in justice before making such use of those observations to make those observations and the possibility of his using them in the course of his judgment known to counsel at a stage of the hearing at which counsel still has an opportunity of dealing with them in a proper and effective way. 16 These principles have been followed in later cases. See Marelic v Comcare (1993) 47 FCR 437, Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304, In the marriage of F and M Chehab (1993) 16 FLR 477 and In the marriage of Zantiotis (1993) 113 FLR 182. 17 In Bailey's Case, Kirby P said (at 313): So long as the conventional theory reigns that observations of a party or other witness are an important and legitimate element in curial decision making, it is appropriate to permit at least the observations to be taken into account which occur inside the courtroom. However, this conclusion leaves the question of notification to the parties and their representatives where the observations have occurred, as here, outside the actual period of the trial and when the person being observed is at the back of the court behind the representatives of the parties who thus have no opportunity to observe the features in question and by interrogation, evidence or advocacy, to persuade the decision maker to a different view about them than has been formed…. 18 Before us, the respondent's submissions were put by Mr McIntyre SC, who represented the respondents who were the defendants in the first action. His submissions were adopted by Mr Ronzani, representing the respondents who were the defendants in the second action. 19 It was submitted that the trial had progressed to such a stage that it was too late for the appellant to have done anything in response to Mr Kelleher's invitation which was to take account of the appellant's conduct in the courtroom during the time of final addresses at trial. I cannot accept this submission. Mr Kelleher's invitation raised two matters: (1) what was the appellant doing that was inconsistent with the evidence; and (2) was there any explanation for it. 20 In the passage from Bailey's case that I have set out, Kirby P referred (at 313) to the opportunity of a party who has not, through his or her counsel, observed the conduct in question to persuade the decision maker to a favourable view about it "by interrogation, evidence or advocacy". 21 The trial in the present case was not so far advanced that any of those three opportunities were foreclosed. Leave would have been required to re-open the evidence but it is inconceivable that such leave would have been refused if sought, whether the dispute was about what happened or as to its explanation. 22 It is convenient to pass next to what is logically the final submission of the respondents. It was submitted that her Honour's observation of the appellant in Court did not bear upon her assessment of him as a witness of little credit. In Stead v The State Government Insurance Commission (1986) 161 CLR 141 at 145 the High Court said that: … not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial....Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact. However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a Court of Appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.

23 It is clear that the appellant's credibility was seriously damaged by what he did in the witness box at trial. However, I cannot conclude that the result would inevitably have been the same had there not been a denial of procedural fairness. 24 The remarks in the judgment, which I have already set out, show that her Honour had regard to what she saw of the appellant "in the witness box and in the courtroom". She said that she did not take those observations into account in assessing the appellant's medical condition but his credibility was important on several other points at issue in the proceedings and dealt with in the judgment. 25 The very fact that Blackman ADCJ noted the discrepancy between the appellant's conduct in and outside the witness box, stating that it was not something which she could ignore, means that the observation must be taken to have had an impact upon the overall assessment. In her Honour's words it gave her "food for thought" as to the appellant's credit. Unlike a genus of ruminant like the cow, her Honour did not have separate stomachs for digesting the relevant material; and the judgment does not clearly place to one side what was obviously an adverse perception derived from her Honour's observation of the appellant's behaviour. 26 The final submission and the most difficult one was that the appellant had the opportunity to take whatever steps were necessary to meet the issue raised by Mr Kelleher. I understand the relevant principle to be as stated by Gaudron J in Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305. Her Honour said: As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given "a reasonable opportunity to present his case" and not that the tribunal ensure "that a party takes the best advantage of the opportunity to which he is entitled". And it is always relevant to inquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue. 27 The respondents submitted that Mr Kelleher's invitation should be seen as confined to an invitation to her Honour to pay regard to what she saw in the courtroom solely as going to the issue of the appellant's medical condition. This certainly appears to have been the main thrust of the submission, judging by counsel's notes of Mr Wheelahan's strenuous objections and the reasons he advanced for those objections. It is true that her Honour did not use her observations of the appellant as the basis of her medical assessment. But I have concluded that she did use that observation otherwise to the disadvantage of the appellant and that she did not alert the appellant of her intention to do so. In those circumstances, I cannot conclude that there was any waiver or other conduct that would have disentitled the appellant to have taken the point he now takes. 28 In my view, the appellant was denied the opportunity to meet the point by reason of the trial judge's silence as to her intention to rely on her observations until they were disclosed in the reserved final judgment. It is possible that her Honour did not receive the fullest of assistance from counsel, although in their defence the issue popped up its head for the first time in addresses and then only somewhat tentatively, at least as far as the defendants' case was concerned. 29 I have, I believe, addressed the respondent's principal objections to the application of the principle expounded in cases such as Bailey's Case. Implicit in my dealing with those submissions, I have concluded that the trial in each action did miscarry because of the failure of the learned trial judge and of counsel for the defendants to ensure that the appellant was given a reasonable opportunity to address a point that appears to have influenced the final decision. 30 I propose that in each appeal the following orders be made: (1) Appeal allowed. (2) Set aside the verdict and judgment in the District Court. (3) Order a new trial on issues of damages. (4) Costs of the earlier trials to be at the discretion of the judge hearing the new trial. (5) Respondents to pay the appellant's costs of the appeal and to have a certificate under the Suitors Fund Act if qualified. 31 HEYDON JA: I agree. 32 CLARKE AJA: I also agree. 33 MASON P: The orders of the Court will be as indicated.

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