EVIDENCE - Whether primary judge gave due weight to failure of defendant to give evidence - Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, Knell v QAV Pty Ltd [2020] WASCA 23, Blatch v Archer [1774] EngR 2; (1774) 98 ER 969, Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517, Australian Securities & Investments Commission v Hellicar (2012) 247 CLR 345, Henderson v Queensland [2014] HCA 52; (2014) 255 CLR 1, Chong v CC Containers Pty Ltd [2015] VSCA 137; (2015) 49 VR 402, Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217, Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39, considered - Leave to appeal granted.

EVIDENCE - Whether primary judge erred in finding that the applicant had given prior inconsistent statements where statements not in evidence - Where alleged records of those statements put to a witness but denied - Whether puttage of such records could be sufficient for them to be 'read into evidence' - Process by which prior inconsistent statements, hearsay statements, business records and other evidence may be admitted - Evidence Act 2008, ss 43, 44, 48, 55, 69 and 135 - Aslett v The Queen [2006] NSWCCA 49, Matthews v SPI (Ruling No 35) [2014] VSC 59, considered - Leave to appeal granted - Appeal allowed - Retrial ordered.

1. On 8 September 2017, Mr Peter Moore (the plaintiff and applicant on the application for leave to appeal) was involved in an incident at a bus stop adjacent to Warrigal Road, Moorabbin. Mr Moore, in a proceeding in the County Court, alleged that he had been struck by a bus driven by Mr Clive Goldhagen (the defendant to the claim and the respondent to this application) and sustained physical and psychological injuries.
2. The trial was heard in the County Court over 13 days in March and April 2022. Originally a jury, indeed as it transpired two juries, were empanelled. However, the trial was ultimately determined by a judge (his Honour Judge Dyer) sitting alone. Judgment was delivered in February 2023.[1]
3. Notwithstanding that Mr Goldhagen did not give evidence at the trial and that Mr Moore maintained that he had been struck by the bus, the judge dismissed Mr Moore's claim. His Honour did not accept that Mr Moore was a credible witness and held that he could not be satisfied on the balance of probabilities that the incident occurred as described by him or that there had been any negligence on the part of Mr Goldhagen.

1. The Further Amended Statement of Claim is admirably short. It makes the following allegations of negligence against Mr Goldhagen:

(a) Failing to keep a proper look out;

(b) ...

(c) Driving away from the bus stop when it was unsafe to do so;

(d) Driving away from the bus stop without allowing or permitting a passenger to board the bus;

(e) Failing to break (scil, brake) and/or steer the bus so as to avoid the collision;

(f) Striking a pedestrian at the bus stop;

(g) Failing to comply with the provisions of the Road Safety Act and the Regulations made thereunder.

1. Mr Moore, at the time of trial, was 71 years of age and his claim was both for pain and suffering, and (somewhat optimistically) economic loss.[2]
2. As a result of the collision, Mr Moore alleged that he had suffered a psychological injury and injuries to his right knee, shoulder and hip, and a secondary gastric injury.
3. Mr Goldhagen denied that he was negligent and alleged that, in the alternative, Mr Moore had been contributorily negligent.
4. Mr Moore's lawyers sought trial by judge alone in the original writ (and its successors). Mr Goldhagen's lawyers gave notice that he required the trial to be by jury.

1. The trial commenced on 24 March 2022 and was beset by issues from the start.
2. Prior to the commencement of the trial, Mr Tobin SC as senior counsel for Mr Moore, appearing with Ms Bailey, applied for it to proceed before a judge sitting alone; Mr Goldhagen had sought trial by a jury of six. The judge refused this application and empanelled the jury, which was then addressed by Mr Tobin.
3. On the following day and after a view of the scene of the alleged incident, senior counsel for Mr Goldhagen, Ms Myers KC (who appeared with Mr Oldfield), applied for the discharge of the jury on the basis of Mr Tobin's references in his opening address to payment of benefits to Mr Moore by the Transport Accident Commission ('TAC') - which is the basis of the first proposed ground of appeal.
4. Mr Tobin then, again, applied for the trial to proceed before a judge alone, and again this was refused. Mr Tobin then retired from the case and Ms Bailey, his junior counsel with Ms Tate, conducted the case for Mr Moore.
5. The judge then empanelled the second jury which was addressed by Ms Bailey on 29 March 2022. In the course of that address, counsel referred to TAC's acceptance of Mr Moore's claim, but did not mention how that could be used by the jury.
6. Mr Moore (who was cross-examined for an inordinately long period) and another witness as to liability, Mr Peter Bergin, completed their evidence on 4 April 2022. A psychologist, Ms Kathy Astrinakis, gave evidence in the afternoon and, at the close of the day, was under cross-examination by senior counsel for Mr Goldhagen.
7. The next morning, on 5 April 2022 (the seventh day of the hearing), the judge was informed that Ms Bailey had contracted COVID-19. The jury was sent home for the day, and the trial resumed in the absence of the jury on the afternoon of 6 April 2022. Ms Bailey, appearing remotely, applied for a discharge of the jury. Senior counsel for Mr Goldhagen opposed the discharge and suggested that junior counsel conduct the trial for Mr Moore in the absence of leading counsel.
8. The result was that the judge correctly discharged the jury on the afternoon of 6 April and, again correctly, over the opposition of senior counsel for Mr Goldhagen, ordered that the case proceed before himself sitting alone, with Ms Bailey participating remotely.
9. One further witness as to liability, Mr Stuart Roberts, was called. Witnesses as to assessment of damages were then called and cross-examined.
10. On the morning of 12 April 2022, Ms Bailey closed Mr Moore's case.
11. Senior counsel for Mr Goldhagen then announced that she was calling no evidence and tendered no evidence. The judge then proceeded to hear closing addresses, with counsel for Mr Moore commencing.

1. On the issue of liability, the following witnesses were called by the plaintiff:

(a) Mr Moore;

(b) Mr Bergin, a bus driver employed by Transdev (the company which operated the bus driven by Mr Goldhagen) who had been driving the bus travelling behind the bus driven by Mr Goldhagen and who had picked up Mr Moore after the incident;

(c) Mr Roberts, a Transdev driver manager at the Heatherton depot who had received a complaint concerning the incident;[3] and

(d) Dr Raouf Mirhom, Mr Moore's general practitioner, who also gave evidence in relation to Mr Moore's injuries.

1. Several documents relevant to liability were tendered by the plaintiff including three photographs of the scene[4] which, as the judge noted, 'disclosed nothing unusual about the bus stop itself, or indeed about the bus'.[5] It is convenient to reproduce two of those below.
2. The first photograph is taken looking east across the southbound carriageway of Warrigal Road.

1. The second photograph is an aerial shot showing the whole of the southbound carriageway of Warrigal Road and the location of the bus stop and an adjacent post which contained the bus timetable.[6]

1. Mr Moore said that on the evening of 8 September 2017 he had attended two live music venues, and that he had consumed one light beer at each venue. He then walked from the second venue to the bus stop at around 11:00 pm, intending to catch the bus to the stop closest to his home. He had waited for the bus while leaning on the post, rather than in the shelter.[7]
2. It was common ground that Mr Goldhagen's bus (operated by Transdev) had proceeded in a southerly direction (i.e. left to right in the photo reproduced at [23] above) and, with the purpose of picking up passengers, came to a stop at a point near the shelter.
3. In examination-in-chief, Mr Moore's account of the incident was as follows:

COUNSEL: What did the bus do that you sighted, that you saw coming through the traffic lights?

MR MOORE: It just came through the traffic lights like a normal bus would, I suppose, but as it came up to the bay, the bus bay, it turned into the bay, I waved to it to try and - as you do to wave a bus down.

COUNSEL: I'll just stop you there. Are you able to say how far the bus was away from you when you waived it down?

MR MOORE: Oh, when I waved to it? It was probably only about 25 metres at that point.

COUNSEL: And did the bus actually enter the bay fully?

MR MOORE: Yes.

COUNSEL: What happened next? Once the bus has actually pulled into the bay, can you tell the court - firstly, can you tell the court where you were standing at that time?

MR MOORE: I was standing right at the pole that has the timetable on it and it pulled right up to the pole - actually a tiny bit past ... [a]nd it stopped.

COUNSEL: When you say it pulled it up 'a tiny bit past', which part of the bus was past the pole?

MR MOORE: The very front of it. The actual door to the bus, the hinge - the back hinge to that door would have been in line with the timetable post. ... The front doors, the back of the front door hinge.

COUNSEL: You said the bus pulled to a stop?

MR MOORE: Yes.

COUNSEL: Where were you standing when the bus pulled to a stop?

MR MOORE: I was standing on the kerb.

COUNSEL: And what did you do next?

MR MOORE: I waited ... where the doors were and they weren't - didn't seem to be opening, so I stepped off the kerb and I raised my right hand because he hadn't opened the door and I struck the bus just behind the door.

COUNSEL: ... Are you able to say approximately how many steps you made from the time that you were standing at the timetable pole to the time that you were in close enough proximity to hold your hand up and touch the bus?

MR MOORE: One, one and a half, maybe two. Not very much at all.

COUNSEL: Are you able to say how many times you made contact with the bus using your right hand?

MR MOORE: I only would have managed once because he pulled off and pulled off into me and then turned away.

COUNSEL: When you say 'he pulled off into you', can you explain to the jury what you mean by that?

MR MOORE: The bus was still pointing the same direction as he was when he came in and he - so the bus hit me and then he turned off to the right.

COUNSEL: When you say 'the bus hit you', are you able to tell the court where - which parts of the body you say were hit?

MR MOORE: It really thumped me, it hit my - like my arm and the side of my body.

HIS HONOUR: He's indicating the upper right arm ... the outside of the right arm...

...

MR MOORE: It hit me there and spun me around because it took off in a forward direction...

COUNSEL: Are you able to say if you know where your right hand was as at the time that the bus hit your shoulder?

MR MOORE: I don't think I can. I don't think I can remember that precisely.

...

COUNSEL: Are you able to say which part of the bus it was that you say hit you or struck you?

MR MOORE: Yes. It was just behind the front wheel, on the side of the bus.

COUNSEL: After you were struck by the bus, what happened?

MR MOORE: I was spun and decked.

COUNSEL: When you say you were spun, are you able to demonstrate or explain to the jury what you mean by you were spun?

MR MOORE: What happened is that as the bus hit me, the friction against my clothing and myself made me - forced me to turn.

COUNSEL: Are you able to say how far you turned?

MR MOORE: It would have been probably 180 degrees or more. I don't remember exactly because I hit the ground. I know I was - I rolled over and watched the tail-lights disappearing. I thought the guy had stopped but he didn't.

1. Mr Moore suffered a graze on his head above his right eye, a grazed right arm and a grazed knee, photos of which are extracted at [29[8]]below.8
2. After the bus driven by Mr Goldhagen departed, Mr Moore sat down in the shelter and waited for the next bus, which arrived after somewhere between 20 minutes and half an hour. Once on that bus, he recounted to the driver, Mr Bergin, what had transpired. Mr Bergin told him he would need to contact TAC to make a complaint.[9]
3. Mr Moore alighted at the stop closest to his home and then went to a venue to get a coffee because he was feeling shaken up. Upon returning to his home, he took photographs of his injuries, depicted below:[10]

1. On the following day, Mr Moore visited his general practitioner, Dr Mirhom, and reported the incident both to Victoria Police and TAC. When asked whether he had reported the incident to the bus company, he stated that he could not recall whether he had made contact with anyone at the company (although it was clear from the later evidence of Mr Roberts that a report had been made).[11]
2. In cross-examination, Mr Moore denied that he had been staggering and denied being significantly intoxicated (he admitted to drinking two light beers).[12] He also denied making a grab for the bus as it was pulling away and that the incident was a result of him simply falling over.[13]
3. Counsel for Mr Goldhagen then asked:

COUNSEL: Are you seriously suggesting to the jury that somehow or other the bit of the bus behind the front wheel moved a whole arm's length towards you and collided with you?

MR MOORE: Well, I'm telling you that the bus hit me. I mean, I think it's fairly apparent the bus hit me. And how it actually occurred at that point I can't divulge, I don't know how that happened. I know what happened when I stepped off the kerb, I know I put my hand up to try and alert the driver and I didn't measure how far my feet were or my arm was from the bus. I know I tried to alert the driver.

COUNSEL: I suggest it couldn't possibly have happened the way that you've said?

MR MOORE: Well, perhaps the driver drove into me. Either way, I was struck and knocked to the ground and suffered... as a result.

...

COUNSEL: Did you make a move to grab the bus as it was pulling away?

MR MOORE: No.

...

COUNSEL: Is the truth, Mr Moore, that you simply fell over?

MR MOORE: I'm sorry, that is absolutely ridiculous. It's not true.

1. Mr Moore denied telling Mr Bergin when he boarded the second bus that he had fallen over and rejected the proposition that he had not told Mr Bergin that the earlier bus had hit him or knocked him down.[14]
2. Mr Moore was cross-examined about reports he had made to both TAC and Victoria Police concerning the incident. Senior counsel for Mr Goldhagen cross-examined Mr Moore on the basis of entries contained within records kept by both organisations (the 'TAC Report' and the 'Police Report', respectively; collectively referred to as 'the Reports'). In both cases, the cross-examination proceeded on the basis that the Reports included notations apparently by the respective authors of the Reports (Senior Constable Ayoub of Victoria Police and an unnamed TAC officer) to the effect that Mr Moore had reported that the bus had 'mounted the kerb'. Mr Moore denied telling 'anybody' that the bus had mounted the kerb.[15] The Reports were not tendered. In re-examination, Mr Moore confirmed that he had made a report to TAC by telephone, but had not seen any written report.[16]
3. Pausing here (and this seems to have escaped notice and will be addressed at some length later), the putting of a proposition that results in a denial means there is no evidence from that witness on that score. Of course, the proposition may be established by other evidence, but that is a different question. There is another matter to note. Given that Mr Goldhagen chose not to give evidence, Mr Moore's account is the only direct evidence as to how the incident occurred.
4. Mr Bergin (the driver of the following bus) was called by counsel for Mr Moore. In his evidence-in-chief, he said that he remembered picking up the person he now knows to be Mr Moore and noticed that he had cuts on his face with congealed blood and was agitated.
5. Mr Bergin then said that Mr Moore had approached him, and had talked to him about the incident:

COUNSEL: ... What did he say to you?

MR BERGIN: He delivered the words very emphatically and he said, 'That driver that was driving the bus before you, can you please get a message to him and the company that he's a prick and he shouldn't be driving buses'.

...

COUNSEL: Then were there any further conversations or further discussions?

MR BERGIN: Yes, yes. He then described - he said that he had attempted to board the bus ahead of me and that the driver had not opened the doors and that he had tried to stop the bus from going and in the process - he said, 'I tried to stop the bus from going and I fell over'.

1. Then in cross-examination by counsel for Mr Goldhagen, there was the following exchange:

COUNSEL: The fact of Mr Moore being unhappy and what he relayed to you on the bus on the night, he was unhappy that he wasn't picked up, wasn't he?

MR BERGIN: Yes.

COUNSEL: That's, in essence, what his grievance was - he hadn't been let on the bus?

MR BERGIN: I felt that he was upset that he'd been left behind and that Clive had driven the bus away from him and not picked him up.

COUNSEL: And what Mr Moore had described to you was, as the bus had driven away from him he'd attempted to somehow stop the bus or grab the bus or something and had somehow fallen over in that process?

MR BERGIN: I believe so.

COUNSEL: Insofar as Mr Moore's presentation was concerned, when he got on to the bus, you noticed he smelt of alcohol?

MR BERGIN: Yes, I could smell - - -

COUNSEL: And you've described your observations of Mr Moore and fair to say he wasn't sober when he got on the bus, was he?

MR BERGIN: Yes, that's true.

COUNSEL: He certainly did not tell you at any point on the journey with you that he was hit by the bus that Mr Goldhagen was driving.

MR BERGIN: No, no, I - - -

COUNSEL: He didn't say that he was struck by the bus that Mr Goldhagen was driving either, did he?

MR BERGIN: No, no, those matters were not mentioned.

1. Mr Bergin did not say, at least in terms, that Mr Moore appeared drunk.
2. Mr Bergin was also asked by counsel for Mr Moore as to any discussion with Mr Goldhagen. He said that when he returned to the depot, he saw Mr Goldhagen and mentioned the fact that he had not picked up a passenger. According to Mr Bergin, Mr Goldhagen said as follows:

I remember Clive describing this person was at the bus stop but they were lurching, that they were very sort of unsteady on their feet and they were lurching about and that Clive had decided he didn't want to have him on the bus because he was worried about this person's condition and what their behaviour might be like on the bus.[17]

1. Mr Roberts, the Transdev driver manager, was also called by Mr Moore. He said that on 10 September 2017, Transdev received a call (it was not in issue that it was from Mr Moore) in relation to the incident. Mr Roberts said he was notified of the incident about two days later and was provided with a three page report document which was created by the company's head office and sent to him for completion (the 'Transdev Report').[18] The Transdev Report (which was tendered by counsel for Mr Moore in re-examination)[19] included a summary of the call, which read as follows:

Customer stated the driver did not open the doors, turned away, drove off without collecting him but when the bus was leaving the stop, it hit him (customer) and knocked him over.[20]

1. As a result of that information Mr Roberts instigated an investigation, which essentially centred on an interview with the driver (Mr Goldhagen) and recording his response. He also spoke with Mr Bergin[21] and the report recorded part of this conversation as follows:

He spoke to Clive after the shift. Told him a man about 60 staggering at the stop, to increase his safety with a drunk on board. Clive set off again.[22]

1. No CCTV footage of the incident has been recovered.[23]
2. In examination-in-chief, counsel for Mr Moore asked Mr Roberts what the normal operating procedure would be for a bus driver encountering a drunk passenger (as Mr Moore was alleged to have been):

COUNSEL: Are you able to tell the court whether Transdev at that time had a specific policy as to when to refuse passengers entry to a bus?

MR ROBERTS: If somebody feels unsafe. There's obviously so many different types of potential threats so it's a question of establishing whether or not it seems rational and reasonable for the driver to leave a person behind.

COUNSEL: Was there a written policy as such to that effect at that time?

MR ROBERTS: There was something I recall regarding passengers but I don't recall specifically but obviously safety was the company's priority. So if somebody's going to be threatened, that's obviously something that would induce such behaviour.

COUNSEL: When you say safety, is the safety of the person attempting to board the bus something that would also have been a part of that policy?

MR ROBERTS: By the safety of the person at the stop, yes, but also balancing that against the safety of other passengers on board.

1. Mr Roberts was asked in evidence-in-chief as to his recollection of Mr Goldhagen's account of the incident provided during his interview, which he said was as follows:

That he had pulled into the stop to pick up the person, the person had behaved in an aggressive manner towards the - outside the bus and then he had driven off again.

1. When asked again as to his discussion with Mr Goldhagen, he said:

My recollection of the conversation was that he - Mr Moore was acting aggressively, I think that was regarding banging on the bus, from memory and other actions I can't recall exactly but it did appear sufficient at the time to satisfy me that he had reasons to leave the stop.

1. In cross-examination, having been asked (without objection) a series of questions as to his opinion about the conduct of Mr Goldhagen, the following was asked:

COUNSEL: Is it the case that Mr Goldhagen said before he did that, before he obviously had to look for traffic and pull away, he was satisfied or he had observed Mr Moore well clear of the bus at that point in time?

MR ROBERTS: Correct.

1. Mr Roberts then gave the following opinion evidence (again without objection):

HIS HONOUR: There was something you wished to add, I think, to your response to Mr Oldfield?

MR ROBERTS: Yes. Thank you, Your Honour. That stop is a little bit different to a lot of stops and that actual stop itself is quite a way back in the cutting. The bus comes out on a very, very shallow angle at that particular stop, so the concept of anyone being hit there is doubly difficult. There is basically no possibility of tail swing or any other issues that may involve somebody by the side of the road.

1. The cross-examination continued with a series of irrelevant questions directed to Mr Roberts' understanding of Mr Goldhagen's experience, and any previous complaints about his driving. Also, without objection, Mr Roberts expressed the opinion that Mr Goldhagen would have needed good reason to leave the stop without opening his doors for Mr Moore, and agreed that Mr Moore's behaviour would have had to have been 'particularly inappropriate' for Mr Goldhagen to have taken that course of action. He also agreed that Mr Moore had claimed that he had been hit by the bus, but, again without objection, said that 'the likelihood of that seemed very, very low'.
2. In re-examination, Mr Roberts said that Mr Bergin had told him that Mr Moore had tried to grab the bus.
3. In re-examination, Mr Roberts also said:

COUNSEL: It was put to you that you confirmed with Mr Goldhagen that he was well clear of Mr Moore when he pulled out. Can you tell the court where you have noted that in your report?

MR ROBERTS: That isn't actually in the report because the thing is, that is just standard procedure for drivers to make sure the area is clear. They check both mirrors - normally when you leave a bus stop, you check the left-hand mirror. They will check the doors, left-hand mirror, confirm that there's nobody actually there and then he's going to check his right-hand mirror and then rejoin the traffic.

...

MR ROBERTS: That's standard operating procedure. That wouldn't be a fact you would be writing down because that is standard operating procedure.

...

COUNSEL: ... Mr Roberts, just confirming, did you in fact ask Mr Goldhagen in that time that you spoke with him in the two days following the incident in September 2017, did you specifically ask him whether he was well clear of Mr Moore when he drove off?

MR ROBERTS: I cannot recall asking that question. I do not recall asking a specific question, however, that would be something we would have touched on. That would be part of the normal sorts of questions that I would ask in that situation.

1. Although the evidence of the treating general practitioner, Dr Mirhom, primarily concerned Mr Moore's physical and psychological health, he confirmed that Mr Moore had told him on the day following the incident that he had been knocked to the ground by a bus. This was recorded in his clinical notes.[24]

1. It is necessary to return to the cross-examination of Mr Moore, as the judge relied upon a number of the answers given by him about matters unrelated to the accident as going to his overall credit. We note that counsel's cross-examination in relation to the circumstances directly concerning the incident occupies approximately 20 pages of transcript. The cross-examination on other issues occupies approximately 170 pages of transcript and covers such topics as:

(a) his relationships with his former partners;

(b) his attendance at music venues;

(c) his road trips;

(d) his employment history, including payslips;

(e) his disability support pension;

(f) his education history;

(g) his history of sexual abuse, his awareness of the Royal Commission into Institutional Responses to Child Sexual Abuse, and his lawsuits against various entities and the settlements;

(h) his use of alcohol;

(i) his convictions for driving offences;

(j) his previous driving accidents and hospitalisations;

(k) his COVID vaccination status (which was largely objected to); and

(l) his medical treatment by psychiatrists.

1. Whilst quantum was an issue (remembering Mr Moore was, at the time of the trial, 71 years of age), the cross-examination occupied more than two full days, commencing just before lunchtime on 30 March 2022 and concluding at around 3:00 pm on 1 April 2022. When combined with his examination-in-chief and re-examination, Mr Moore gave evidence for almost four full days.

1. In final submissions, counsel for Mr Moore succinctly summarised her client's case as follows:

...What we submit is this: whether the plaintiff was in fact knocked over by the bus as it manoeuvred out or whether his hand was on the bus trying to make it stop or whether his hand was in fact on the bus trying to get the attention of the driver, we say none of that matters.

Even if it was simply the movement of the bus that destabilised him, causing him to fall, that on any one of these scenarios, the plaintiff must succeed in establishing negligence on behalf of the driver of the bus, and I will tell you why.

...

[W]e say that Your Honour is not required to make a specific finding, or we would say that Your Honour can be satisfied not only if the bus actually struck him but if the plaintiff was destabilised by the movement of the bus, and we say that's very significant because of the very fact of the bus moving we say is negligence on behalf of the driver in the circumstances in which the bus took over.

...

We submit, Your Honour, that the driver must have known that he pulled into a bus stop and came to a stop, that potential passengers would approach, that they would walk right up to the door of the bus and that of course, they would expect the door to open for them to board.

However, instead of doing what was expected of him, the driver, the defendant drove off and at the time the defendant drove off, the plaintiff was far from being clear of the bus. On his own evidence ... he was about 20 to 30cm from the bus ... tapping as a means of saying, 'Let me in' as the bus actually takes off.

I think, Your Honour, this is an important time to remind Your Honour as to what Mr Roberts said about that standing operating procedure. The operating procedure is for a bus driver to make sure that the area is clear before pulling out of a bus stop. He said that normally drivers check both mirrors when they leave a bus stop. He said that they check the doors and the left-hand mirror to confirm that there is nobody actually there and then they check the right-hand mirror before rejoining the traffic...

...the defendant denies that the plaintiff was struck by the bus as alleged and denies negligence and there's an issue as to the nature and extent of any injury, loss and damage sustained by the plaintiff.

...

In our submission, it's apparent from the plaintiff's evidence that he was simply reconstructing the events on the night and had no real memory about what happened, and the likelihood is, in fact, it's probably because the plaintiff had been drinking more than he was prepared to admit. He was having a host of problems in his life with the report of the abuse to the royal commission, the police and his solicitors. He had recently been dumped by his girlfriend, Karin, so all those circumstances rather suggest that the plaintiff wasn't in a state to know what in fact was occurring.

...

In our submission, the plaintiff's version of how the bus struck him - his versions I should say of how the bus struck him are unbelievable and the incident could not have occurred in the manner alleged by the plaintiff. The side of the bus is flat. There are no protruding parts and no possibility of tail swing or any other issues that may cause a person to the side of the bus to be struck at that stop and Your Honour will recall there was some evidence from Mr Roberts yesterday to that effect.

In order to be struck by the bus when the plaintiff's an arm's length away from the bus, the bus would have had to have moved sideways to the left to the extent of an arm's length in order to hit the plaintiff and there's no reasonable explanation as to how that might have come about, other than it did not. So overall, we say to Your Honour that the plaintiff's contradictory, unsatisfactory evidence regarding the happening of the incident ought to be rejected.

...

Mr Bergin's evidence doesn't support a finding that the defendant was negligent, Mr Roberts' evidence doesn't support a finding that the defendant was negligent and the evidence that the plaintiff led regarding the defendant's version of what happened does not support a finding of negligence against the defendant. So when one assesses the whole of the evidence on this liability issue, the plaintiff just must fail.

... Clearly, there's no breach of duty by the defendant in not picking the plaintiff up from the bus stop and no breach of duty in leaving the bus stop. The evidence that Your Honour has is that the plaintiff was well clear of the bus when it was departing the stop and Your Honour heard that evidence from Mr Roberts.

...

We refer to the fact that much has been made by the plaintiff that the defendant has chosen not to adduce any evidence and obviously enough, there's no onus upon the defendant to disprove the plaintiff's allegations and in any event, we say, Your Honour, the court has the benefit of the defendant's account of what happened through the evidence called by the plaintiff from Mr Bergin and Mr Roberts.

1. Counsel also referred to the use that could be made by the judge of the contents of the Police Report and the TAC Report and their inconsistency with Mr Moore's account. We will return to this when dealing with proposed ground four.

1. The judge noted that Mr Moore's case 'ultimately depends on an acceptance that he was struck by the bus and caused to fall to the ground'.[25] His Honour, upon finding that Mr Moore was an unsatisfactory witness, said that he was unable to be satisfied that Mr Moore's version of events was preferable to 'any other of a number of explanations'.[26] Therefore, having found that Mr Moore had not proved negligence on behalf of Mr Goldhagen, he dismissed the proceeding.
2. The judge's views as to the reliability of Mr Moore's evidence were, in the main, drawn from senior counsel's cross-examination of Mr Moore in relation to matters unrelated to his account of the incident, which, as set out above, included his personal relationships at or about the time of the incident, his long-standing problems with alcohol, his tragic past history involving childhood sexual abuse and also his activities following the incident.[27] In particular, the judge noted that:

Mr Moore's reliability as an historian must be very seriously questioned given the contradictory evidence given in relation to these issues. It was clear that his recall of very significant events in his life was much less than would be expected from a person giving accurate and reliable evidence on matters essential to enable a court to confidently determine issues in dispute.[28]

1. As will be discussed under proposed ground four, the judge also referred to the fact that Mr Moore had given inconsistent accounts of the accident (specifically, the detail that the bus had mounted the kerb contained in the Reports) to Senior Constable Ayoub of Victoria Police and to a TAC officer, remarking that:

It is true that Mr Moore has denied ever stating that the bus mounted the kerb. Nevertheless, as submitted on behalf of the defendant, what other source could there have been for the recording of that matter by both the police and the TAC?[29]

1. His Honour also noted an additional 'conceptual difficulty' in accepting Mr Moore's version of events:

The bus stop was cut back into the footpath area on the eastern side of Warrigal Road. It had been scalloped at either end to enable a bus to smoothly enter into and drive out of the bus stop area. Mr Roberts had stated there was 'basically no risk of tail swing'.

The bus was not of an articulated design, nor was there any evidence to suggest that there were any external handles or other protrusions which might have struck a person who was standing beside the bus and banging on an area near the rear of the front door trying to attract the driver's attention. Nothing in Mr Moore's evidence could lead to a conclusion that he could not have been struck by any part of the front of the bus, that is forward of the front door.

In leaving the stop the bus must have moved to its right, that is away from Mr Moore. His version of events, that the bus struck him in the area of the right shoulder and the right leg, spinning his right side forward and causing him to fall, is in my view most unlikely.[30]

1. The judge proffered that 'to [his] mind' there were 'many possible explanations' as to the cause of the incident:

The defendant submitted that the likelihood was that Mr Moore was affected by alcohol and his injuries probably occurred as a result of him trying to obtain entry to the bus and simply falling to the road. Perhaps he had simply fallen without making contact with the bus? Once again, this is purely speculative. Perhaps the bus had mounted the kerb and struck him?[31]

1. Counsel for Mr Moore contended that her client's version of events could be supported by the contemporaneous reporting to Mr Bergin, Transdev and Dr Mirhom.[32] However, the judge also noted counsel for Mr Goldhagen's submission that Mr Bergin's evidence as to Mr Moore's version of events on the night of the incident, and also what had been recorded in the Reports, was inconsistent with the version given by Mr Moore in his examination-in-chief.[33]
2. In considering the competing explanations of the incident, the judge considered the potential Jones v Dunkel[34] inferences that could be drawn as a result of the failure of Mr Goldhagen to give evidence. The judge noted that counsel for Mr Moore submitted that the relevant inference to be drawn was that Mr Goldhagen's evidence would not have assisted his case and where there was a conflict the Court could more readily accept her client's version.[35] Following a detailed analysis of Jones v Dunkel, the judge quoted a section of the leading judgment of Kitto J:

One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.[36]

1. The judge also referred to earlier statements of the principle in Bradshaw v McEwans Pty Ltd[37] and (noting that it had been referred to by Menzies J in Jones v Dunkel) the decision in Richard Evans & Co Ltd v Astley,[38] which each referred to the need for evidence to give rise to more than 'conflicting inferences of equal degree of probability'.[39]
2. The judge then referred to the judgment of Dixon CJ in Jones v Dunkel,[40] where (although in the minority in the result) his Honour said:

...the law ... does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.[41]

1. Concluding that Mr Moore was an unsatisfactory witness, the judge then resolved:

I am simply unable to be satisfied that his version of events is preferable to any other of a number of explanations. In those circumstances, I cannot be satisfied that he has proved any negligence on behalf of Mr Goldhagen.[42]

1. The proposed grounds of appeal are:
   1. The learned trial judge erred as a matter of law in ruling that the applicant was not permitted to adduce evidence of the fact that the applicant continued to be in receipt of benefits pursuant to his accepted Transport Accident Commission claim.
   2. The learned trial judge erred as a matter of law in failing to give due weight to the failure of the respondent to give evidence.
   3. The learned trial judge's judgment was against the weight of the evidence.
   4. The learned trial judge erred as a matter of law in finding that the Applicant had made inconsistent statements to Senior Constable Ayoub and the Transport Accident Commission to the effect that the Applicant had stated that the bus had mounted the kerb.
2. It is convenient to examine the three grounds (namely, proposed grounds 1, 2 and 4) dealing with alleged specific errors on the part of the judge before considering the question of the overall correctness of the decision (proposed ground 3).

The first proposed ground: the exclusion by the judge of evidence of TAC payments to Mr Moore

1. During argument on the hearing of the application for leave to appeal, this ground was abandoned by counsel for Mr Moore. However, given the manner in which it was argued by Mr Moore's counsel below, and the content of the written case before this Court, we should make the following observations.
2. First, it is apparent that in determining to discharge the first jury as a result of senior counsel for Mr Moore's opening address, his Honour accepted that the evidence of receipt of TAC benefits constituted an admission on behalf of Mr Goldhagen as to the occurrence of a transport accident - as Mr Tobin had told the jury. At trial, no argument was advanced by Mr Goldhagen's counsel, that the evidence as to Mr Moore's receipt of TAC benefits was not admissible pursuant to s 55 of the Evidence Act 2008 ('Evidence Act'), as relevant to a fact in issue, namely whether Mr Moore was involved in a transport accident that caused him injury. Rather, the argument put by senior counsel for Mr Goldhagen, focused on the danger of the jury being distracted by this evidence and improperly attaching undue weight to it.
3. Despite not referring to it in his ruling, it is tolerably clear that the judge excluded the evidence of receipt of TAC benefits by applying ss 135(a) and/or (b) of the Evidence Act and concluding that the probative value of this evidence was substantially outweighed by the danger that the evidence may be both unfairly prejudicial and misleading or confusing to the jury.
4. The fact that Mr Moore received TAC payments had the real potential, as the judge recognised, of distracting the jury by reference to the existence of the statutory scheme and its no-fault mechanisms which had no relevance to Mr Moore's common law claim and the circumstances surrounding it. And this could not be sufficiently ameliorated by a direction to the jury - as his Honour noted. There was no error in the judge's conclusion.
5. Second, contrary to the submissions of counsel for Mr Moore, it is not at all clear to us that the acceptance of a claim or payments of benefits by TAC, in its role as the administrator of a no-fault benefits scheme, can amount to an admission on behalf of a TAC insured driver. Whether the relationship between an insured driver and TAC can give rise to a relationship by which the TAC's conduct can be imputed to the driver is problematic. Moreover, as Tate JA (with whom Hansen JA agreed) pointed out in Transport Accident Commission v Florrimell,[43] there are practical difficulties in endeavouring to use the existence of no-fault payments by TAC as evidence of an admission on the part of a driver. In particular, her Honour noted as to the policy underpinning the scheme:

It would be contrary to the efficient administration of the compensation scheme as a whole if the TAC resisted paying for medical procedures that might reduce the pain and suffering of someone injured in a transport accident on the basis that if it did so it would be regarded, at law, as having made an admission.[44]

1. We agree with this statement and would add (given Mr Moore's reliance upon decisions involving payments to a worker under the Accident Compensation Act 1985) that the scheme of the Transport Accident Act 1986 and the purpose of payment of statutory benefits by TAC in dealing with no-fault claims is significantly different to that of the Accident Compensation Act 1985 (and its successor, the Workplace Injury Rehabilitation and Compensation Act 2013) and payments made by a private insurer licenced under those Acts. Decisions of this Court dealing with claims against employers and admissions by their insurers by reason of the acceptance of workers' claims[45] must therefore be treated with caution in the transport accident context.
2. In Bedeux v Transport Accident Commission[46] - a case involving statutory payments made by Australia Post (not TAC) to an employee as a result of a transport accident - Kaye JA (with whom Ferguson and McLeish JJA agreed) said as follows as to the evidentiary value of the acceptance by Australia Post of an employee's claim and the payment by it, of statutory benefits:

Even if, hypothetically, the acceptance of the claim by Australia Post had some evidentiary value in the proceeding, such value could only be very limited. As pointed out by counsel for the respondent, there was no evidence concerning the compensation system by reference to which Australia Post accepted the applicant's claim. It appears to have been accepted on the strength of limited medical opinion then available to it. By contrast, there was a substantial body of medical evidence before the judge relating to the critical issue of the cause of the injury to the applicant's left knee.[47]

1. Even if TAC's conduct in accepting the claim and making payments under the Transport Accident Act 1986 could be attributed to Mr Moore, for the reasons Kaye JA enunciated, such an admission by conduct may have little or no evidentiary weight. This is just such a case, as it involves the payment of benefits under the Act by reason of an on the spot decision by a TAC claims officer.
2. Third, inferentially, the suggestion that in some way Mr Moore was denied a fair trial by the decision (based on the opening address) of the judge to discharge the first jury is wrong. The trial before the second jury was derailed by Ms Bailey's illness. Ultimately, the trial was heard and determined by a judge, rather than a jury, as a result of that unfortunate occurrence. This could not produce an injustice as Gaudron, McHugh and Hayne JJ noted in Gerlach v Clifton Bricks Pty Ltd:

The proposition that trial by judge alone, as opposed to trial by judge and jury, can amount, without more, to a substantial wrong to a party or to a miscarriage of justice is a startling proposition. It is true that, assuming the order dispensing with a jury should not have been made, a party to litigation has been wrongly deprived of the mode of trial which it desired. But that party has had a trial which, for present purposes, must be assumed to have been a trial according to law. No error in the conduct of that trial (as distinct from the mode of trial) has yet been established. And in any event the trial was by one of the modes of trial prescribed for disposition of litigation of this kind.

No doubt the dispute between the parties about whether the trial should be with or without a jury reveals that each had a different view of which mode of trial was preferable and of advantage to it. But the fact that, rightly or wrongly, parties have reached different views about that question does not demonstrate that a substantial wrong or miscarriage is suffered if one rather than the other mode of trial is adopted. Indeed, to hold that adopting one, rather than the other, available mode of trial does involve a substantial wrong or miscarriage necessarily entails the corollary that the party propounding the opposite contention would be exposed to a substantial wrong or miscarriage if that party's chosen mode of trial was not adopted.[48]

The second proposed ground: the failure of the judge to give due weight to the failure of Mr Goldhagen to give evidence

1. In his Reasons,[49] the judge set out the principles applicable in Jones v Dunkel relating to the failure to call a relevant witness, and the inferences which may be drawn from that failure, with the caveat that a judge cannot enter into the realms of speculation as to the witness's evidence. As far as it goes, this was correct. However, in this case, Mr Goldhagen was not only a party to the litigation but a key witness as to the liability issue: he was the one who could dispute Mr Moore's version of events. Essentially, this case was a contest between Mr Moore and Mr Goldhagen.
2. On this application, senior counsel for Mr Goldhagen contended that there was no necessity for her client to give evidence, on the basis that two hearsay accounts of his version had already been provided by Mr Bergin and Mr Roberts - which are set out above at paragraphs [40] and [45]-[46] above, respectively. This, in our view, is no answer. Mr Moore was prepared to give his sworn account and be cross-examined on it. Mr Goldhagen was not. Indeed, Mr Goldhagen's hearsay accounts are simply protestations to a fellow worker and a manager about his innocence when questioned about the incident (i.e refusing to allow a passenger to board his bus late at night), and are coloured by both impression and recollection of those witnesses. In no way do they constitute (or go anywhere near) a sworn account tested in cross-examination, which was the opportunity accepted by Mr Moore but declined by Mr Goldhagen. As we shall now explain, in circumstances where the testimony of Mr Goldhagen could potentially resolve the controversy about the events of 8 September 2017, his failure to give evidence is a highly significant matter that must be taken into consideration when considering where the weight of evidence may otherwise lie.
3. In Blatch v Archer, Lord Mansfield said that 'all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted'.[50]
4. The principles in Jones v Dunkel flow from this statement_,_ are well understood and have been summarised as follows:

The content of the rule in Jones v Dunkel is uncontroversial. Two consequences may flow from the unexplained failure of a party to call a witness who that party may be expected to call. First, the court may infer that the evidence of the absent witness would not assist the case of the party. Second, the court may draw an inference unfavourable to the party with greater confidence. In the latter case the inference must already be available on the evidence. Also, the uncalled witness must be one who appears to be in a position to cast light on the facts relied on as the ground for the inference. However, the rule in Jones v Dunkel does not permit an adverse inference that the uncalled evidence would have been positively damaging to the party. The absence of the witness cannot be used to make up any deficiency of evidence. [51]

1. But the proposition in Blatch v Archer stands for a wider proposition than that of the drawing of inferences as the result of the failure to call a relevant witness. It goes to the heart of the evaluation by the trier of fact of contested issues in a case such as this where a party to the litigation who can contradict an opposing account, is not called.
2. In Swain v Waverley Municipal Council, Gleeson CJ said:

More than 200 years ago, Lord Mansfield said that 'all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted'. This basic principle of adversarial litigation is not a matter of esoteric legal knowledge; it accords with common sense and ordinary human experience. When the jurors in this case were asked to consider whether the flags should have been placed elsewhere, they may have thought that it was up to the respondent, rather than the appellant, to tell them what difficulty there would have been about moving the flags to avoid the sand bank, or to explain why nothing would have been gained by putting the flags in a different location. That is something they might reasonably have taken into account in making a judgment about the reasonableness of the conduct of the respondent.[52]

1. As this Court explained in Chong v CC Containers Pty Ltd:

Alderson B recognised that a failure by a party in civil proceedings to deny a fact which it was in their power to deny 'gives a colour to the other evidence against him'. In Bridge v The Queen, Windeyer J quoted what Frankfurter J said in Adamson v California:

• Sensible and just-minded men, in important affairs of life, deem it significant that a man remains silent when confronted with serious and responsible evidence against himself which it is within his power to contradict.

The inference, now usually described as the rule in Jones v Dunkel, is a particular application of Lord Mansfield CJ's maxim 'that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted'. The failure of a party to give evidence in his or her own defence may give rise to an inference that his or her evidence would not assist him or her in the case. As Windeyer J put it in Jones v Dunkel:

• But silence may amount to much more than an acquiescence in the primary facts. It may be eloquent in support of an inference to be drawn from those facts.[53]

In Dilosa v Latec Finance Pty Ltd [No 2], Street J recognised that where the absent witness is a party then considerable importance may well attach to the inference that nothing which the party could say would assist his or her case. As Gleeson CJ said in Azzopardi, the judgments in Weissensteiner recognise that the inference that may be drawn from the silence of a party to civil litigation may be significant. Santow J drew such an inference in ASIC v Adler because the parties who were available and not called had a personal involvement in the transactions in question. Where a party elects not to give evidence 'the court is entitled to be bold'. As Heydon, Crennan and Bell JJ stated in Kuhl v Zurich Financial Services Australia Ltd, the rule has a particular application where it is the party which is the uncalled witness and may permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn.[54]

1. In Weissensteiner v The Queen, Mason CJ, Deane and Dawson JJ said:

We have quoted rather more extensively from the cases than would otherwise be necessary in order to show that it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.[55]

1. Finally, the words of Rich J in Insurance Commissioner v Joyce, bear repeating:

Obviously the question was one to be decided on circumstances. But when circumstances are proved indicating a conclusion and the only party who can give direct evidence of the matter prefers the well of the court to the witness box a court is entitled to be bold.[56]

1. It matters not whether the decision to call Mr Goldhagen was tactical (in terms of preserving his counsel's right to make the second address) or otherwise. The simple fact is that he did not enter the witness box and give sworn testimony, notwithstanding that he could have disputed Mr Moore's account. He preferred the safety of the well of the court (if he ever entered the court) - whilst Mr Moore gave sworn evidence and was cross-examined for two days.
2. Despite the fact that the line of authority that we have just discussed was not drawn to his Honour's attention by counsel for Mr Moore, it is, nevertheless, a fundamental principle which should have been addressed by the judge. The judge placed no emphasis whatsoever on the fact that the defendant to the claim, who could have contradicted Mr Moore's account of the incident, was not called. This was patently a matter of considerable significance and, as the authorities demonstrate, required that failure to be taken into account in the overall evaluation of Mr Moore's account of the incident - bearing in mind that the only sworn evidence (unshaken in cross-examination and supported by some contemporaneous consistent statements) was that of Mr Moore. It was considerably more significant than drawing a Jones v Dunkel inference where a relevant witness is not called.
3. Proposed ground two is made out and leave will be granted with respect to it.

The fourth proposed ground: the judge's use of inconsistent statements allegedly made by Mr Moore to a police officer and a TAC officer

1. During the cross-examination of Mr Moore, counsel for Mr Goldhagen put (in different ways) the asserted contents of the TAC Report and the Police Report to him. On the basis of the suggestions in cross-examination, each of these appears to have been completed by an officer of the respective organisation (in the case of the Police Report, Senior Constable Ayoub, and in respect of the TAC Report, an unnamed TAC officer). The purpose of the cross-examination was, it would seem, to demonstrate that Mr Moore had given inconsistent accounts (in the sense of inconsistent with his sworn testimony) of the incident to both officers.
2. As to the Police Report, the following exchange occurred:

COUNSEL: I'm going to read to you what the police incident report says about what you reported, Mr Moore, and see what you say about this. 'At approximately 23:15 hours, the reporting person states that he was attempting to catch a 903 bus headed towards Mordialloc ... from the intersection of Warrigal Road and Cochranes Road in Moorabbin. The reporting person states that as he attempted to get on the bus, that the driver looked at him, closed the doors and mounted the kerb, driving off towards Mordialloc'.

MR MOORE: Not so. The bus never at any point - - -

COUNSEL: - - - 'As a result' - I'll just read to you the whole thing, Mr Moore, to be fair to you. 'As a result, the reporting person has received lacerations to the head and hands and states he's unable to sleep as a result of the trauma. The reporting person states that he was on his way home from a licensed premises in Cochranes Road and had consumed a small amount of light beer'?

MR MOORE: One beer.

COUNSEL: You told the police that the driver had 'mounted the kerb', didn't you?

MR MOORE: I did not ever say that to anybody, that the driver had mounted the kerb, because the driver did not mount the kerb. The driver entered the bus bay, which is beyond the kerb of the side of the road, I understand that, but I did not at any point say the bus mounted the kerb.

1. As to the TAC Report, after handing Mr Moore a copy of the document, counsel confirmed with him that he had made a verbal report to TAC and the answers given with respect to various personal, incident and injury details noted on the document. The following exchange about the circumstances of the incident then occurred:

COUNSEL: Okay. And these are the accident details that have been recorded from you, Mr Moore, 'I was looking at the bus timetable. The bus driver looked, mounted the kerb and drove off, knocking me to the ground'?

MR MOORE: Well, that's incorrect. It did not mount the kerb at any point and I've always maintained that it didn't mount the kerb and I don't know where that came from.

COUNSEL: Your account of this accident is inconsistent because it's not true, is it, Mr Moore?

MR MOORE: My account is exactly true, exactly. As much as I can remember every detail, I give it to you.

1. In her closing address, Mr Goldhagen's counsel asserted that the TAC Report and the Police Report had been 'read into evidence':

COUNSEL: It was read into evidence what was reported to the police and also read into evidence what was reported to the TAC. It's an extraordinary coincidence, is it not, if it hasn't come in the plaintiff, that those two organisations would separately come to the conclusion that that was the account of the incident. That's what the plaintiff would have Your Honour believe.

1. In his Reasons, the judge made a number of references to the contents of the Reports, including extracting parts of the Police Report which, as he subsequently found, was not in evidence:

Mr Moore was further cross-examined about initial reports he had made of the incident to both Victoria Police and the Transport Accident Commission. Mr Moore was directed to a document titled 'Incident Report' and apparently prepared by Senior Constable Ayoub at the Moorabbin Police Station. This document contained the following as a description of the incident:

• At approximately 2315 hrs the reporting person states that he was attempting to catch a 903 bus headed towards Mordialloc from the intersection of Warrigal Road and Cochranes Road in Moorabbin. The reporting person states that as he attempted to get on the bus that the driver looked at him, closed the doors and mounted the curb (sic) driving off towards Mordialloc. As a result the reporting person has received lacerations to the head and hands and states he is unable to sleep as a result of the trauma. The reporting person states that he was on his way home from a licenced premises in Cochranes Road and had consumed a small amount of light beer.[57]

1. Then within a couple of paragraphs, the judge at [80] observed correctly:

Notwithstanding the puttage of the prior inconsistent statements to Mr Moore, neither document was tendered in evidence, nor was Senior Constable Ayoub, who had been identified in the police report, called to give evidence by either party.

Ms Myers KC also made reference to the obvious conflicts between Mr Moore's evidence of the manner in which the incident occurred and the evidence related by Mr Bergin and also what had been recorded in both the police statement and the TAC report. ...

The history recorded by both the police and the TAC made reference to the bus mounting the kerb. Notwithstanding the denial of any mention of this by Mr Moore, it was submitted on behalf of the defendant that such a history could only have been provided by him to be recorded by both the police and the TAC.

...

There are, to my mind, many possible explanations as to what had occurred at that bus stop on 8 September 2017. The defendant submitted that the likelihood was that Mr Moore was affected by alcohol and his injuries probably occurred as a result of him trying to obtain entry to the bus and simply falling to the road. Perhaps the bus had mounted the kerb and struck him? This version had been recorded in both the police statement and the statement recorded on behalf of the Transport Accident Commission. Mr Moore flatly denies he ever said it.

...

It is true that Mr Moore has denied ever stating that the bus mounted the kerb. Nevertheless, as submitted on behalf of the defendant, what other source could there have been for the recording of that matter by both the police and the TAC?[58]

1. In making these observations, the judge referred to the fact that Mr Moore had allegedly given inconsistent accounts of the incident (specifically, the fact that the bus had mounted the kerb) to Senior Constable Ayoub of Victoria Police and to a TAC officer. And then, more importantly, the judge used these accounts to question the reliability of Mr Moore's recollection.
2. On this application, Mr Moore's submission was simple: the judge (notwithstanding his finding at [80] of his Reasons, set out at [97] above) impermissibly relied upon the statements by Mr Moore to officers of TAC and Victoria Police allegedly recorded in their respective reports which were not in evidence. These were incorrectly utilised by the judge in reaching his conclusion as to the liability of Mr Goldhagen for Mr Moore's alleged injuries.
3. Both before the judge at trial and on this application, counsel for Mr Goldhagen maintained that the contents of the Reports and particularly those parts said to contain Mr Moore's description of the incident, had 'been read into evidence'.
4. Despite the helpful submissions of senior counsel for Mr Goldhagen in this Court, it remains unclear to us exactly what is meant by the expression 'read into evidence' in the context of adducing evidence in the course of the trial. As best we can tell, it is contended that mere references in the questions asked in cross-examination of Mr Moore as to both the existence of the Reports and certain identified parts of their contents, particularly as to the movement of the bus (notwithstanding Mr Moore's denial), meant that these formed part of the evidence available to the judge in reaching a decision as to the liability (if any) of Mr Goldhagen. And, on this application, it was said that counsel for Mr Moore acquiesced to this course.
5. For the following reasons, we reject this submission.
6. First, we know of no authority to support the proposition that a question of a witness containing an assertion by counsel as to the contents of a document means that those contents are 'read into evidence' (unless the witness agrees with the proposition, in which case there is oral evidence as to the fact). None was cited. To the contrary, it is axiomatic in the jurisprudence of this country, as judges have instructed juries day in and day out over decades if not centuries, that the evidence before the Court is the answer to the question and that the only evidentiary function of the question is to give context to the answer.
7. The Evidence Act determines the way in which cross-examination in this context may be undertaken. In this case, both ss 43 and 44, set out below, were relevant:

43 Prior inconsistent statements of witnesses

(1) A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or not -

(a) complete particulars of the statement have been given to the witness; or

(b) a document containing a record of the statement has been shown to the witness.

(2) If, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner -

(a) informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement; and

(b) drew the witness's attention to so much of the statement as is inconsistent with the witness's evidence.

(3) For the purpose of adducing evidence of the statement, a party may re-open the party's case.

44 Previous representations of other persons

(1) Except as provided by this section, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness.

(2) A cross-examiner may question a witness about the representation and its contents if -

(a) evidence of the representation has been admitted; or

(b) the court is satisfied that it will be admitted.

(3) If subsection (2) does not apply and the representation is contained in a document, the document may only be used to question a witness as follows -

(a) the document must be produced to the witness;

(b) if the document is a tape recording, or any other kind of document from which sounds are reproduced - the witness must be provided with the means (for example, headphones) to listen to the contents of the document without other persons present at the cross-examination hearing those contents;

(c) the witness must be asked whether, having examined (or heard) the contents of the document, the witness stands by the evidence that he or she has given;

(d) neither the cross-examiner nor the witness is to identify the document or disclose any of its contents.

(4) A document that is so used may be marked for identification.

1. Both ss 43 and 44 are found in Chapter 2 of the Evidence Act, which relates to the adducing of evidence.
2. The purpose of s 43 is to ensure that a witness has a proper opportunity to consider what he (in this case) is said to have asserted and how it is inconsistent with what the witness now says. Sub-section (2) then sets out what must happen when the witness does not admit to making a prior inconsistent statement - as in this case.[59]
3. Section 43 was potentially engaged on the basis that Mr Moore's conversation with the relevant officer (as recorded in each of the Reports) contained a prior inconsistent statement - namely that of the bus mounting the kerb. The cross-examination concerning Mr Moore's alleged statement to the police officer appears to have been conducted under this provision. It was not necessary to show the Police Report which it was said contained a record of the conversation to Mr Moore: s 43(1)(b). It was sufficient to inform him of the circumstances in which it was alleged that he made the statement - as was done. Sub-section (2) was then engaged by Mr Moore's denial of making such a statement. It was then open to counsel for Mr Goldhagen to adduce 'evidence of the statement' - such as by seeking to tender the Police Report or calling the police officer. Sub-s (3) would have entitled, if it was necessary, Mr Goldhagen to re-open his case and establish the existence of the prior inconsistent statement.
4. Section 44 operates quite differently to s 43. The purpose of s 44 is to facilitate cross-examination (on limited terms) in relation to a representation made by a person other than the witness. Often such a representation will be contained in a document made by that other person. This provision is not confined to establishing a prior inconsistent statement, but the representation must be relevant to the issues in the case (s 55). In this case, s 43 was potentially engaged as each of the Reports was compiled by a third party (i.e. the relevant officer) and contained, it would seem, a record of Mr Moore's alleged statement - the entry relating to the bus mounting the kerb. This was the course apparently chosen by counsel in cross-examining Mr Moore on the contents of TAC Report. Consistent with this provision, counsel provided the TAC Report to Mr Moore whilst in the witness box. This should only have occurred if s 44(2) was satisfied - this required the judge to be satisfied that the relevant representation in the TAC Report (i.e. the reference to the bus mounting the kerb) would be proved in evidence, as it had not been tendered and Mr Moore had denied saying anything of the sort.
5. No such decision was made by the judge: accordingly, the proper course was then to follow the process set out in s 44(3) and, if an application to do so was made, to mark the document for identification. This was not done and Mr Moore was cross-examined forensically on the contents of the TAC Report - despite the fact that it was not his document. If the section had been adhered to then, before this occurred, the question of proof of the relevant parts of the TAC Report would have been squarely raised and, one would hope, have been addressed at that time.
6. In any event and whatever the failings in terms of compliance with the provisions of the Evidence Act, it is abundantly clear that neither Report ended up in evidence - as the judge found at [80] of his Reasons.
7. A permissible (and the obvious) method by which to prove either the terms of Mr Moore's conversations with either officer, or the contents of the Reports, and more relevantly, the alleged prior inconsistent statements within them, was for Mr Goldhagen to call the makers of the Reports to give evidence. Each relevant officer could have deposed as to their conversation with Mr Moore and those parts which constituted the alleged inconsistent statement and the recording of them within the respective Reports.
8. Second, no effort was made to tender the Reports under s 69 of the Evidence Act (the 'business records' provision) or perhaps, and more unlikely, other hearsay exception provisions of that Act. Any proposed tender of either of the Reports would, in all likelihood, have been met by an argument under s 135 of the Act that the probative value of the statement recorded in it (i.e. as to the bus mounting the kerb) was substantially outweighed by the danger that the evidence might be unfairly prejudicial to Mr Moore. Such an argument is open where the prejudice is the forensic inability to cross-examine the maker of the document.[60]
9. Third, in common law trials, it is established practice that the contents of particular documents, such as a medical reports, may be read into evidence before the trier of fact (either a judge or jury) as part of a clear and open agreement between the parties sanctioned by the judge. That did not occur in this case. And it cannot occur by stealth or implication. There was no agreement as to the tender of the contents of the Reports and nothing was read into evidence.
10. Fourth, counsel for Mr Goldhagen relied upon several statements made by counsel for Mr Moore at the trial as constituting, in effect, a concession that the contents of the TAC Report had been 'read into evidence'.
11. Counsel for Mr Goldhagen relied upon the following:
    • In the opening address, a reference to the making of a TAC claim by Mr Moore 'that was accepted for that particular incident'.
    • As part of Mr Moore's re-examination in which he was shown the TAC Report and denied making the statement contained in the document - consistent with what he had said in cross-examination.
    • A statement by counsel for Mr Moore in her closing address that the TAC Report had been 'read into evidence'; although it is clear from the whole of counsel's statement that she was referring to the transcript of Mr Moore's oral evidence when he was cross-examined about the contents of the TAC Report.
    • Counsel's reference in her closing address to the fact that Mr Moore had made a report to Victoria Police.
    • Counsel's reference in her closing address to the TAC Report in pursuing an argument that a payment by TAC constituted an admission.
12. It may be trite, but it seems necessary to state the obvious: mere references by counsel, (either in the course of the questioning of a witness, or in the course of making submissions, in respect of a particular piece of evidence) do not - we repeat, do not - constitute evidence before the court. Nothing was said by counsel for Mr Moore during the course of the trial which rendered either the Reports, or the asserted prior inconsistent statements within the Reports, admissible. Her statements in court do not come within a bull's roar of adducing evidence in accordance with established principle. As just discussed, there is an accepted way of proving facts upon which a party wishes to rely. Counsel for Mr Goldhagen chose not to call the relevant officers and did not seek to tender the Reports.
13. Finally, on the hearing of this application it was argued that '[t]he reading into evidence ... [was] in accord with the Evidence Act - ss 48(1)(a) and 48(4)(b)', which are directed to the proof of contents of documents. There is no substance in this submission. At trial, no reference was made to either provision and no application was made by counsel for Mr Goldhagen to utilise the provisions to prove the contents of the Reports. Even if an application had been made, it would have required the judge to determine whether the terms of the relevant section had been satisfied - and if so, it may have been met by an objection under s 135 of the Act.
14. Although the reason why no attempt was made to adduce the Reports in evidence is irrelevant to our conclusion that there was no admissible evidence of the alleged prior inconsistent statements, we observe that when the order of addresses was raised by the judge, senior counsel for Mr Goldhagen expressly referred to the fact that she had called no evidence and tendered no documents in support of her submission that counsel for Mr Moore should address first. The fact that no documents were tendered on behalf of Mr Goldhagen was expressly adverted to and cannot be seen to be the result of an inadvertent omission. But inadvertence would not have converted an absence of evidence into evidence.
15. The result is that Mr Moore's submission must be accepted: there was no admissible evidence of the prior inconsistent statements alleged to have been made by him and contained in the Reports, as the judge found at [80] of his Reasons.
16. It must follow that his Honour's references in his Reasons to the contents of the Reports at [76] and speculation at [123] and [132] in relation to the alleged accounts provided by Mr Moore as to the bus mounting the kerb were palpably incorrect. Each went directly to his conclusion as to the veracity of Mr Moore's account of the incident.
17. This proposed ground is made out and leave will be granted with respect to it.

The third proposed ground: the judgment was against the weight of the evidence

1. The errors that we have identified in relation to proposed grounds 2 and 4 are of sufficient significance (either individually or jointly) for it to be concluded that the trial miscarried, and that the judgment should be set aside. Accordingly, it is unnecessary to address this ground.

1. As just mentioned, the applicant has made out this case in relation to proposed grounds 2 and 4. Those errors are patently material to the decision made by the judge, and the judgment must be set aside.
2. Leave to appeal will be granted and the appeal allowed. What consequences then flow is a particularly tricky issue.
3. There are the following considerations:

(a) This incident occurred in September 2017 and, by the time a further trial is heard in the County Court, there is a real possibility that a result will not be achieved until 2025. The quicker this litigation can be finalised, the better.

(b) The hearing in the County Court was, through no fault of the judge, a nightmare. Nearly everything that could go wrong, went wrong. Mr Moore was cross-examined for far too long, and his modest claim for damages occupied 13 sitting days.

(c) Unfortunately, the judge has retired, and it is impossible to remit the case to the same judge. Counsel for both parties on the hearing of this application sought that the matter be remitted to the County Court for a retrial, although after some encouragement from the Bench, counsel for Mr Moore acquiesced to this Court determining the issue of negligence if it was so minded.

1. In a case where Mr Moore's credit generally and as to the events surrounding the incident was very much in issue and notwithstanding an urge to resolve this proceeding once and for all, we think that the appropriate course is to remit it for rehearing and that the fairest course is to order that the case be retried on all issues, but on certain conditions.
2. These will include a remittal to a trial by judge alone, as soon as is practicable and we urge the parties to meet and endeavour to resolve, at least, the quantum of Mr Moore's claim.
3. We are conscious that, in doing so, Mr Goldhagen will be deprived of his entitlement to a trial by jury, as provided by the County Court Civil Procedure Rules 2018 - and which he has resolutely and continuously sought. That this simple uncomplicated case occupied 13 hearing days is extraordinary. We think that the provisions of Civil Procedure Act 2010 (and particularly ss 7(1) and 8(1)), combined with the history of this proceeding_,_ mandate the need for its speedy and efficient disposition (which so far has been elusive). This requires us to order trial by judge alone, notwithstanding the legitimate course sought by Mr Goldhagen.

1. Subject to hearing from the parties, we will make the following orders:

(a) The application for leave to appeal be granted and the appeal allowed.

(b) The orders of Judge Dyer made 20 March 2023 be set aside.

(c) The proceeding be remitted to the County Court for rehearing before a judge sitting alone.

1. On the issue of costs, subject to any submissions the parties may wish to make, we think that Mr Moore's costs of the application for leave to appeal and the appeal should be paid by Mr Goldhagen and that the costs of the trial before Judge Dyer be costs in the cause.

[1] Moore v Goldhagen [2023] VCC 238 ('Reasons').

[27] Reasons, [84], [102]-[113], [127]-[130].

[30] Reasons, [133]-[135] (citations omitted).

[34] [1959] HCA 8; (1959) 101 CLR 298.

[36] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 305.

[37] (1951) 217 ALR 1, 5 (Dixon, Williams, Webb, Fullagar and Kitto JJ).

[38] [1911] UKLawRpAC 47; [1911] AC 674, 687 (Robson LJ).

[41] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 305.

[43] [2013] VSCA 247.

[45] See the discussion by Tsalamandris J in Sepe v Club Italia Sporting Club Inc (Ruling) [2023] VSC 191, [12]-[53].

[46] [2016] VSCA 127.

[47] Ibid [73]. At [69], it was accepted by counsel for the applicant that the payment of compensation by Australia Post could not constitute an admission by TAC in relation to the injury sustained by the applicant.

[48] Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, 485 [11]-[12] (emphasis in original).

[49] Reasons, [117]-[118], [124]-[126], [135].

[50] [1774] EngR 2; (1774) 98 ER 969, 970.

[51] Knell v QAV Pty Ltd [2020] WASCA 23, [96] (Quinlan CJ).

[52] Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517, 525 [17]. See also, for example: Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345, 411 [166] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Henderson v Queensland [2014] HCA 52; (2014) 255 CLR 1, 28-9 [91] (Gageler J).

[53] Chong v CC Containers Pty Ltd [2015] VSCA 137; (2015) 49 VR 402, 462-3 [206]-[207] (Redlich, Santamaria and Kyrou JJA) (citations omitted).

[54] Ibid, 464 [212] (Redlich, Santamaria and Kyrou JJA) (citations omitted) (emphasis added).

[55] Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217, 227-8 (citations omitted) (emphasis added).

[56] Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39, 49.

[57] Reasons, [76] (citations omitted).

[58] Reasons, [114], [115], [123], [132] (emphasis added).

[59] See Aslett v The Queen [2006] NSWCCA 49, [75]-[76] (Barr J).

[60] See Matthews v SPI (Ruling No 35) [2014] VSC 59, [49]-[56] (J Forrest J).