Determination
85There are two ways that one can approach the determination of the question whether her Honour's discretion miscarried in the costs order she made. First, as argued by the appellant, to assess whether her Honour erred in her factual findings in relation to the making of the telephone calls that were recorded in Exhibit A. The second is whether, at a practical level, the trial would have been conducted significantly differently had the trial judge rejected part of the evidence.
86The principles governing the review of the factual findings of a trial judge based upon the credit of witnesses were restated in Fox v Percy [2003] HCA 22; 214 CLR 118. Those principles in turn reflect the function of this Court. As the plurality stated, at [23]:
"... On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole." (citations omitted)
87Their Honours emphasised, at [31], the importance for courts:
"... to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events."
88In the present case, there was a body of contemporaneous or near contemporaneous material, in the form of hospital notes, telephone records, solicitor's files, file notes and billing records against which the evidence of both the appellant and Mr Aspite was to be assessed. It could not be said that this material provided "incontrovertible evidence" to the contrary of the trial judge's findings: see Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472. However, there is a question whether this material, together with other circumstances, was such that compelling inferences were available such as to favour the appellant's version of events so that his evidence ought to have been accepted by the trial judge: see Chambers v Jobling (1986) 7 NSWLR 1 at 10. An examination of some of that material follows.
89On her review of the hospital notes, her Honour, at [61], considered that the recorded wishes of both Mr Maestrale Snr and the appellant, in the days preceding 8 July as well on 8 and 9 July, that Mr Maestrale Snr be discharged home with the "only health concerns being chest pain", was:
"... capable of supporting Mr Aspite's evidence that Mr Maestrale's health, as he assessed it, was not so dire that there was a real risk of his dying within days of 8 July such that delaying preparation of the will until 15 July was unreasonable."
90However, the note made by the occupational therapist, that both the appellant and Mr Maestrale Snr were "currently concerned re chest pain", read in the context of the hospital records as a whole, was not expressed as the singular concern in Mr Maestrale Snr being discharged. It was an expression of a particular problem in a context where the appellant had been informed by Professor Gibson on 14 June that he did "not believe that a remission [was] possible": see above at [*24]. That notation could only mean one thing: that further treatment would not assist, but that control of Mr Maestrale Snr's pain was a particular concern. Given that his pain required narcotic medication, that concern was hardly surprising. The evidence needs to be looked at in that context.
91The discussion with the medical staff at that time then turned to whether Mr Maestrale Snr should be resuscitated should he have a cardiopulmonary arrest. His medical history made this a not unlikely possibility given that he had atrial fibrillation and a large pleural effusion. It appears that the consequences of seeking to actively treat were explained to the appellant in terms that were far from encouraging. The context in which discharge home was being discussed also included his medication regime which had not changed in any significant way since his admission on 3 June. He was medicated with narcotic or artificial narcotic medication, either mist morphine or Endone, but nonetheless had continuing serious chest pain, apparently arising from pleural fluid. If he was to be discharged he would require continuous oxygen, that is, for 24 hours each day. He was also under review by the palliative care team, notwithstanding that the appellant was resisting palliative care at home. It may readily be inferred that this was because of the appellant's wish and over-optimistic belief he could adequately care for his father himself.
92In my opinion, there is nothing necessarily inconsistent with the appellant wishing his father to be at home at this time and his conveying to Mr Aspite the information provided to him by Professor Gibson and the hospital staff, and expressing a real fear that his father was going to die soon. If that was all there was in this case, it might be thought that my opinion was the expression of one judicial opinion over another and, in circumstances where her Honour had seen the witnesses, it could not be said that there were compelling inferences that favoured the appellant's evidence. However, that was not the only evidence. Exhibit A was important evidence which itself gave rise to inferences favourable to the appellant, if Exhibit A had been prepared from mobile phone records made at about the time the phone call was made.
93As already mentioned, there was objective evidence supporting that there were telephone communications made on the dates recorded. For example, the appellant had recorded a telephone call received at 1.54 pm on 17 June from Mr Aspite's secretary. A phone call at that particular time from Mr Aspite's office was confirmed by the phone records. Mr Aspite offered no reason why that phone call was made. Mr Aspite's diary is consistent with the call being made to cancel an appointment because he was engaged in another matter. There was no diary entry, nor was it suggested that Mr Aspite had an appointment that day to see the appellant or his sister in respect of their own litigation. An inference, and the probable inference, was, therefore, that the call related to Mr Maestrale Snr.
94The entry in Exhibit A for 11 July is also important. Again, the time of the telephone call recorded in Exhibit A corresponds with the telephone billing records. Mr Rando gave evidence of his belief that the telephone call related to the appellant's sister's matter in the Industrial Relations Commission. That is possible, as the sister's matter was listed in the Industrial Relations Commission that day. However, the probabilities suggest otherwise. First, the call was made from the respondents' office land line. As the sister's matter was listed in the Industrial Relations Commission at 10 am, the likelihood was that Mr Rando was at the Commission and thus not in his office to make the call. There is no file note of the telephone call on the appellant's sister's file. Mr Rando had recorded and billed for travelling time of (in total) one hour. Thus, he would have had to leave his office at about 9.30 am in order to be at the court at 10 am. Someone else, therefore, must have made the call. There is no billing for the telephone call on the appellant's sister's file. An available inference was that the call to the appellant was in respect of his father's will. In the circumstances, I consider that was the probable inference.
95The respondents' telephone billing records also precisely corroborated the appellant's evidence of a telephone call made on 12 July at 8.58 pm. Her Honour accepted that this call was made to Mr Aspite to advise him of the position in respect of Mr Maestrale Snr's health deteriorating and that the making of a new will was urgent. This was amply supported by the hospital records. However her Honour did not accept that the contents of the telephone call were as stated in Exhibit A, namely, that the appellant sent a text message as to the signing of the will that day. This view was based on the unlikelihood of a an almost five hour time lag between when the appellant said Mr Aspite was to attend the hospital with the will and in making the call.
96However, the delay in contacting Mr Aspite is understandable, given what was occurring at the time. The notes record that Professor Gibson attended at 4 pm. At 5.20 pm, another doctor, perhaps a registrar, recorded that he had a conference with the appellant and explained the futility of intensive care. There is a further entry at 6.30 pm by the palliative care nurse, who recorded that she had had a lengthy discussion with the appellant. The last entry for the day is by a nurse who records that the appellant was still with his father. I do not, therefore, with respect, share her Honour's scepticism as to the appellant's failure to call Mr Aspite at a time proximate to 4 pm when, on the appellant's evidence, Mr Aspite did not attend as arranged. The appellant was with his father whose condition was rapidly deteriorating as recorded in the hospital notes. A person may not necessarily function in those circumstances as one might at less stressful times.
97It is also important, if not critical, to the likelihood of Exhibit A being an accurate record of the telephone calls, that the contents of Exhibit A were reflected in the appellant's statement of claim filed on 11 June 2008 and were the basis of his first affidavit sworn 25 March 2010. This was before the appellant had had access to hospital records or to the respondents' files, billing records and telephone records. The information in those documents was consistent with the appellant's version. In my opinion, the hospital records, the telephone records, the solicitor's diary and diary notes and billings viewed as a whole, including the absence of any record in the appellant's or his sister's file of telephone calls on 17 June and 11 July of which there were independent records, supported the appellant's evidence that he made or received telephone calls on the dates specified in Exhibit A.
98I am of the opinion that the appellant's evidence relating to the content of the telephone calls recorded in Exhibit A should be accepted, notwithstanding that there are aspects of the respondents' submission, particularly the absence of a recording of the time over which each communication was had, which could cast doubt upon the appellant's stated reason for keeping notes, for audit purposes. However, the appellant's reference to keeping a record for audit purposes indicated that it was of a limited nature, as her Honour recognised. He was not concerned with the time of any charge but with the actual attendances.
99I am also not persuaded, having read the whole of the evidence, that the appellant's failure to produce a record of notes he made in his own and in his sister's litigation meant that he did not keep such notes. Rather, those matters had been finalised, unlike the position with his father's will, which remained a live issue for him. Finally, I am not persuaded by the fact that Exhibit A was produced after the appellant had access to the respondents' phone billing records. Access to those records occurred after the filing of the original statement of claim, which included an account of the telephone communications recorded in Exhibit A, as I have explained at [*98].
100The other matter that caused her Honour concern, was in my opinion, explained by the appellant. Her Honour's view, at [16]-[17], was that the absence of complaint to the respondents in the period shortly after his father's death and the ongoing retainer of the respondents' firm in his own and his sister's matters was "difficult to reconcile with his case". However, the appellant explained that the litigation matters were ongoing and he was trying to sort things out with his siblings in respect of the will. That is a plausible explanation.
101The Supreme Court Act 1970, s 75A, provides that this appeal is by way of rehearing. The plurality in Fox v Percy made the observation, at [27], that:
"If, making proper allowance for the advantages of the trial judge, [the appellate court] conclude[s] that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute."
102As I have concluded that the appellant's evidence in respect of Exhibit A should have been accepted, with the consequent acceptance of his evidence as to the telephone communications with the respondents, it follows that I consider that her Honour's costs orders should be set aside and the appellant should have an order for his costs, other than in respect of the adjourned hearing date in respect of which the parties should bear his and their own costs respectively.
103Having reached that conclusion, it is not necessary to consider whether the case would have been run differently so as to impact on costs had I reached a different conclusion and agreed with her Honour that only the calls from 12 July had been made and in terms stated by the appellant. As that would involve a series of hypothetical considerations, it is preferable not to engage in that task.