1. On 26 May 2011, Omar Tiba was a passenger in a motor vehicle that collided with a power pole near the intersection of Widford Street and Freda Street, Broadmeadows. The driver of the vehicle, Aaron Fryer, died in the collision. Mr Tiba sustained physical injuries, including to his head and his right hip.
2. Mr Tiba brought a common law proceeding in the County Court, claiming damages for injuries that he alleged were due to negligence on the part of Mr Fryer in his management and driving of the vehicle. The defendant to the proceeding was the Transport Accident Commission ('TAC').[1]
3. In TAC's defence, it alleged that Mr Tiba was assaulting Mr Fryer shortly or immediately prior to the collision, by punching him to the head and upper body. As a result, TAC contended that Mr Fryer did not owe a duty of care to Mr Tiba in the management and driving of the vehicle, or alternatively did not breach any duty of care. TAC also alleged that Mr Tiba had been contributorily negligent.
4. The trial of the proceeding took place before a judge of the County Court, between 28 January and 10 February 2025. On 11 April 2025, the judge gave judgment for TAC, dismissing the claim and ordering Mr Tiba to pay TAC's costs. The judge published written reasons for judgment, finding that Mr Tiba was assaulting Mr Fryer immediately before the collision and, therefore, Mr Fryer did not owe a duty of care to Mr Tiba.[2]
5. Mr Tiba now seeks leave to appeal to this Court, on grounds including that the judge failed to accord Mr Tiba procedural fairness. TAC agrees that leave to appeal should be granted and the appeal should be allowed on that ground, and that the proceeding should be remitted to the County Court for rehearing by a different judge. The parties have submitted signed consent orders to that effect, together with a joint memorandum in support of those orders.
6. Having read and considered the appeal documents, the judge's reasons for judgment, and the joint memorandum, we are satisfied that the orders sought by the parties should be made. We briefly explain the basis for that satisfaction in the following paragraphs.
7. As mentioned, TAC alleged in its defence that Mr Tiba was assaulting Mr Fryer shortly or immediately before the collision. It had foreshadowed calling Jay Tennant as an eyewitness to the assault, and had included a statement given by Mr Tennant in the court book. However, at no stage during cross-examination of Mr Tiba was it put to him that he had been assaulting Mr Fryer shortly or immediately before the collision. Nor was this put to any other witness called by Mr Tiba.
8. Mr Tiba closed his case on the third day of the trial,[3] subject to documentary tender.
9. On the fourth day of the trial,[4] TAC applied to adduce hearsay evidence by tendering a statement from Mr Tennant and a statement of a police officer recording certain representations made by Mr Tennant to police.[5] Mr Tiba objected to the application. TAC then sought, as an alternative, a bench warrant compelling Mr Tennant to attend court to give evidence, given Mr Tennant's resistance to being served with a subpoena. Discussion ensued between the judge and counsel for the parties, including about whether TAC had failed to comply with its Browne v Dunn obligations.[6]
10. The rule in Browne v Dunn applies where a party intends to call evidence contrary to the evidence given by a witness, and requires cross-examining counsel to put the contradictory account to the witness. It is a rule of fairness, which gives the witness a chance to respond to the contradictory account, and the party who called the witness the opportunity to call other available evidence before closing its case.[7]
11. Leading counsel for Mr Tiba foreshadowed an objection to Mr Tennant giving evidence, on a Browne v Dunn basis. He submitted that Mr Tiba had been materially prejudiced because the evidence of Mr Tennant, which was known to TAC, was not put to Mr Tiba in cross-examination. The prejudice arose not only because Mr Tiba had finished giving evidence, but also because he had closed his case, having made a forensic decision not to call certain witnesses. TAC's position was that Browne v Dunn did not require Mr Tennant's evidence to be put to Mr Tiba, given his evidence that he had no memory of the collision.
12. In the end, the objection was not taken or ruled on by the judge. The impasse was resolved after the judge gave two assurances that he would give Mr Tiba leave to reopen his case, should he make that application. The second of those assurances was:

I think that we can avoid what might be a stoush about Browne v Dunn appropriately by allowing it to be put to the plaintiff and if that means that you need leave to reopen your case to call some additional evidence, then I'll give you that leave and I expect that that would be done before Mr Tennant.

1. Because of the compromise that was brokered by the judge, Mr Tiba did not pursue his Browne v Dunn objection and TAC was able to call Mr Tennant as a witness.
2. On the fifth day of the trial,[8] senior counsel for TAC informed the judge that Mr Tennant was present in court, and applied to recall Mr Tiba in order to put to him that he had been assaulting Mr Fryer. Mr Tiba's leading counsel indicated that Mr Tiba was present and able to be recalled. He also sought leave to reopen his case, proposing to call three other witnesses.
3. The judge refused the application for leave to reopen, giving a ruling on transcript that emphasised Mr Tiba's forensic choice in closing his case without calling certain witnesses. TAC then recalled Mr Tiba and put to him that he had been assaulting Mr Fryer shortly before the collision. Mr Tiba's evidence was that he could not remember what happened before the accident, but that he wouldn't have done it, he had no reason to, and it would have been dangerous for everyone in the car. TAC then called Mr Tennant, who gave evidence that he had observed Mr Tiba assaulting Mr Fryer in the vehicle shortly before the collision.
4. The judge accepted Mr Tennant's evidence,[9] concluding:

The plaintiff was assaulting Fryer. There was no duty owed. A standard of care or scope of the duty alleged cannot be determined based on all the circumstances. Overall, regardless of the fact that I consider a duty was not owed as alleged, based on a consideration of the facts as found, there was no breach of duty that was causally related to the collision.

Therefore, for the reasons given, the plaintiff failed to discharge his onus, and the proceeding fails.[10]

1. In their joint memorandum, the parties agree that the judge denied Mr Tiba procedural fairness because:

(a) Mr Tiba's agreement to TAC's application to recall Mr Tiba (to put to him that he had been assaulting Mr Fryer) was secured by the two statements of assurance provided by the judge that Mr Tiba would be granted leave to reopen his case to call further witnesses, in circumstances where the judge did not rule on whether there was a failure by TAC to comply with the rule in Browne v Dunn, thereby enabling TAC to avoid the possible consequences of a conclusion the rule had been breached.

(b) In refusing Mr Tiba leave to reopen his case, the judge's discretion miscarried because:

(1) He treated the parties inconsistently, in that he penalised Mr Tiba for his forensic decision (not calling certain witnesses) while not acknowledging TAC's forensic decision not to cross-examine Mr Tiba about assaulting Mr Fryer but nonetheless allowing TAC to recall Mr Tiba to be cross-examined on the very issue that was previously avoided. As a result, TAC avoided the consequences that might have arisen if the judge had concluded there had been a breach of the rule in Browne v Dunn.

(2) He failed to acknowledge that he had previously made statements of assurance that Mr Tiba could reopen his case, without explaining why he changed his view.

1. We have reviewed the relevant parts of the County Court transcript for ourselves and accept the parties' characterisation of these matters as procedurally unfair to Mr Tiba. In particular, it was unfair to hold Mr Tiba to his forensic choice to close his case without calling other relevant witnesses, while not also holding TAC to its forensic choice not to put Mr Tennant's evidence to Mr Tiba during Mr Tiba's case. It was also unfair for the judge to give firm indications that he would give leave to reopen Mr Tiba's case to call further witnesses if TAC was able to call Mr Tennant, and then refuse that leave when it was sought.
2. The parties agree that it is not possible to conclude that the same result would inevitably have been reached, had these errors not been made,[11] and that it is neither appropriate nor possible for this Court to decide the matter for itself. That is plainly correct, including because we do not know what evidence might have been given by the additional witnesses Mr Tiba would have called, had he been permitted to reopen his case.
3. For those reasons, we will make the orders sought by the parties.

[1] Transport Accident Act 1986, s 96.

[2] Tiba v Transport Accident Commission [2025] VCC 416 ('Reasons').

[5] Under s 63 of the Evidence Act 2008.

[6] Referring to Browne v Dunn (1893) 6 R 67.

[7] See, eg, Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361, 387-90 [70]-[77] (Heydon, Crennan and Bell JJ); [2011] HCA 11; Police Member 1 (pseudonym) v Mokbel [2025] VSCA 34, [75] (Niall CJ, Emerton P and J Forrest AJA).

[11] Stead v State Government Insurance Commission (1986) 161 CLR 141, 145-146 (Mason, Wilson, Brennan, Deane and Dawson JJ); [1986] HCA 54.