Was Newton denied procedural fairness?
25 Newton submitted that in relying in his preliminary judgment upon the evidentiary conflict between Newton and Mrs Durkin, accepting the evidence of Mrs Durkin and rejecting that of Newton and thereby relying upon that lack of credit in assessing Newton's credit with respect to the factual conflict between he and Fox, the primary judge had denied Newton procedural fairness. The basis of this submission was that his Honour stopped counsel for Newton addressing him on this issue as he considered that the question of Newton's credit vis-à-vis Mrs Durkin was an "unrelated issue" and, impliedly, not relevant to the issue of Newton's credit vis-à-vis Fox.
26 In the course of addresses on 15 May 2002 (ie before his Honour delivered his preliminary judgment) and immediately prior to the commencement by Newton's counsel of his address on the factual issues concerning what happened on the evening in question, his Honour observed (Black 2/541):
"His Honour: Mr Kelly, your submission, I think has merit and its not something that had previously escaped me, but in testing the conflict between the plaintiff and Newton I would also look at the credit of Newton having regard to the evidence of Mrs Durkin."
27 Counsel for Newton then addressed at some length particularly on the issue of Newton's credit and Fox's alleged lack of it. At the end of his address, the following exchange took place between he and the primary judge (Black 2/553):
"Quickenden: …
Your Honour, there were further submissions I wanted to make about Mrs Durkin, a suggestion that any conflict between them somehow impacts on the credit issue …
His Honour: I don't need to hear you on that. I consider them to be unrelated issues."
28 Notwithstanding that the primary judge stopped Newton's counsel from addressing him on the conflict of evidence between Newton and Mrs Durkin on the one hand and the suggestion that that conflict could impact upon the credit issue between Newton and Fox on the other, his Honour did two things. Firstly, without hearing any submissions from Newton's counsel as to whether his client should be accepted where his evidence conflicted with that of Mrs Durkin, his Honour found in his preliminary judgment that he accepted the evidence of Mrs Durkin and rejected that of Newton where their evidence as to conversations conflicted. Secondly, he utilised his rejection of Newton's credit vis-à-vis Mrs Durkin in assessing his credit vis-à-vis Fox. As he said, although he did not regard his determination of the credit issue between Mrs Durkin and Newton as "conclusive in my determination of the dispute between Newton and Fox", nevertheless he considered it to
"be of importance in assessing Newton's credit and the accuracy of his account"
29 Furthermore, as I have already noted his Honour specifically said (Red 66) that he took the conflicting evidence between Newton and Mrs Durkin "into account". It is clear that he intended by that statement to take that conflict into account when assessing Newton's credit with respect to his version of events as against that of Fox.
30 In my opinion, there was a clear denial of procedural fairness. The seriousness of what occurred was exacerbated by the fact that, as at the time he delivered his preliminary judgment (including his findings with respect to Newton's credit, not just vis-à-vis Fox but also vis-à-vis Mrs Durkin), the primary judge had not at that point heard any submissions from Newton's counsel with respect to the factual dispute between Newton and Mrs Durkin. That issue was to come later after he had made his findings of fact with respect to whether he accepted Fox's or Newton's version of the events of the evening of 23 April 1999. As his Honour had said in the exchange with Newton's counsel extracted in [27] above, it was an "unrelated issue".
31 In his submissions before this Court, counsel for Fox properly and fairly conceded that the primary judge had denied procedural fairness to Newton in taking into account, on the issue of Newton's credit, his findings with respect to the evidentiary conflict between he and Mrs Durkin. However, he submitted that notwithstanding that denial of natural justice, no substantial prejudice or miscarriage of justice had occurred. He relied upon the decision of this Court in State Rail Authority of NSW v Luckwell [2000] NSWCA 223 to support the proposition that, by virtue of Pt 51 r23 of the Supreme Court Rules, this Court had no power to order a new trial on the ground of error of law or on any other ground unless it appeared to the Court that a substantial wrong or miscarriage had been occasioned. It was submitted that there was no such wrong or miscarriage because, even if the primary judge had not relied upon Newton's lack of credit vis-à-vis Mrs Durkin in his assessment of his credit vis-à-vis Fox, inevitably he would still have accepted Fox's version of events.
32 The leading authority where there has been a departure from the rules of natural justice in a case such as the present is the decision of the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141. In a joint judgment, the Court adopted (at 145) the general principle as expressed by the English Court of Appeal in Jones v National Coal Board [1957] 2 QB 55 at 57:
"There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge… No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it".
33 The joint judgment then stated what it regarded as an important qualification to that general principle (at 145):
"That qualification is that the appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge in the first trial. An order for a new trial in such a case would be a futility".
34 The Court then illustrated this qualification in its application to questions of law but, in its application to questions of fact, observed:
"Where, however, the denial of natural justice effects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that the compliance of the requirements of natural justice could have made no difference".
35 The Court then held that the Full Court of South Australia had failed to apply the correct criteria if it was saying no more than that a new trial would probably make no difference to the result. The Court then concluded (at 147):
"All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result".