WREFORD -v- LYLE [No 2] [2019] WASCA 144 (16 September 2019)

1. By her application, the appellant, in effect, sought to adduce the following additional evidence in the appeal:
   1. Extracts of trial exhibits or reproductions of trial exhibits, including:

(a) a reproduction of exhibit 4, being a photograph of the 'Mindarie house';[1]

(b) exhibit 19, being the 'Appollo bicycle photograph';[2] and

(c) three photographs from exhibit 33, from the 'police disc', depicting the '4WD tyre showing the powdered white residue from the helmet'[3] and 'the road at close range showing blood marking'.[4]

1. The 'Complete Police Files', which was 'not all tendered under [s]ubpoena',[5] which was 'on file in the Court Room during the trial' and '[c]ould have been accessed but [were] withheld'.[6] The file included:

(a) a 'G4S Compliance Investigation report', dated 28 August 2013, including a (unsigned) witness statement of Neil Alexander Webber dated 20 August 2013;[7]

(b) photographs taken of the scene, photographs of the appellant's shattered helmet, and as part of these photographs, including exhibit 19, being the 'Appollo bicycle photograph';[8]

(c) a medical report dated 5 September 2013 of Dr Sinnathamby of Royal Perth Hospital, listing the appellant's injuries and treatment;[9]

(d) pages 8 and 9 of the appellant's police statement dated 8 August 2013, outlining that 'the 4wd spun its tyre onto [her] helmet/head';[10]

(e) Mr Lyle's police statement, which was unsigned and was not tendered at trial;[11]

(f) Mr Brierley's witness statement, which was unsigned and not tendered at trial;[12] and

(g) photographs of different coloured discs containing the police photographs in the police file, and a letter from the West Australian Police.[13]

(a) the appellant's Wound Management Plan (which the appellant says supports her testimony that on the second impact she fell forward onto her left knee and elbows)[14] and the appellant's Medical Officer's Operation report dated 13 June 2013 (said to show the laceration to her head) from Royal Perth Hospital;[15]

(b) post-trial CT Chest Scan from Perth Radiological Clinic dated 27 July 2018;[16]

(c) PathWest Pathology Testing for 'Non-BT MAC' upon which is written the word 'testing' on 11 September 2018 and 25 October 2018;[17]

(d) certain correspondence from the respondent's lawyers in 2016 relating to consultations regarding the appellant's breast implants;[18]

(e) other documents dated January 2019 relating to the estimated costs of replacing the appellant's breast implants;[19] and

(f) a handwritten document dated 5 August 2019, said to be a 'South Perth 7 Day Chemist price list for eye and pain medication' for past and future medication costs.[20]

1. Documents related to her employment, including her old curriculum vitae prior to updating it after her divorce, which 'was on file during the trial but withheld',[21] and 'Casino pay rates... withheld from [the judge]'.[22]
2. Correspondence dated 8 November 2016 related to an Order 24A offer of compromise made by the respondent.[23]
3. In support of her application to adduce additional evidence in the appeal, the appellant made two overarching submissions. The first was that various documents including medical records, which she contended ought to have been tendered by her lawyers at trial, were not tendered by her lawyers at trial. The second was that the police file relating to her accident was the subject of a subpoena returnable at trial, but the police did not properly comply with the subpoena. The appellant contended, in effect, that the police failed to deliver to the court the full contents of the file.
4. The principles in relation to such an application were outlined at [30] in the Interlocutory decision.
5. The current application to adduce additional evidence had no merit, for the reasons in this and the next paragraph:
   1. The document in [9.5] above is irrelevant to any issue in the appeal on the appellant's case.
   2. The documents in [9.1], [9.2] and [9.3(a) and (d)] above do not purport to be either fresh or new evidence. Also, insofar as the documents in [9.2] above include unsigned witness statements, they are inadmissible. Nor, in any event, did the appellant show any plausible basis upon which it might be said that there was a significant possibility that the admission of any of these documents on appeal would lead to a different result.
   3. The documents in [9.3(b) ‑ (c), (e) and (f)] above are apparently fresh evidence. However, the appellant did not show any plausible basis upon which it might be said that there was a significant possibility that these documents, if admitted on the appeal, would lead to a different result. Nor did the appellant indicate any basis upon which the view might be taken that the documents did not fall within the area of uncertainty in which the judge's estimates for the purposes of assessing damages had[24]een made.24
   4. The documents in [9.4] above are neither new nor fresh evidence. Nor, in any event, did the appellant show any plausible basis upon which it might be said that there was a significant possibility that the admission of these documents on appeal would lead to a different result.
6. Further, as the appellant was represented by lawyers at the trial, she is prima facie at least, bound (as against the respondent) by their conduct at the trial. The fact that her lawyers did not tender certain documents at trial does not provide grounds for tendering such material on the hearing of the appeal. Also, there was no evidence that the police had not properly complied with a subpoena, or that any of the documents which the appellant sought to adduce in the appeal were not available to her or her legal representatives at the time of trial because of inadequate compliance with a subpoena.

1. The appellant made an oral application for this court to issue a subpoena to the police. There was no proper basis to make such an order, and no order to that effect was made.
2. As the appellant is in person, it is appropriate to observe that the dismissal of the Application does not preclude the appellant from filing any further application to file an amended appellant's case in proper form, and an application to adduce additional evidence in relation to any new proposed grounds of appeal. The success or otherwise of any further applications would involve the consideration of their merits, in the context of the delays in the appeal to date.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Appellant's affidavit filed 16 August 2019, par 14(i); JBR1, page 139.

[2] Appellant's affidavit filed 16 August 2019, par 20(v); JBR5, pages 159 - 160, 169 - 170.

[3] Appellant's affidavit filed 16 August 2019, par 15(i); JBR2, pages 140 - 141.

[4] Appellant's affidavit filed 16 August 2019, par 15(ii); JBR2, page 143.

[5] Appellant's affidavit filed 16 August 2019, par 17.

[6] Appellant's affidavit filed 16 August 2019, par 17(v).

[7] Appellant's affidavit filed 16 August 2019, par 18(i); JBR3, page 144 - 148.

[8] Appellant's affidavit filed 16 August 2019, pars 19(i), 20(iv), (v), (vii); JBR4, JBR5, pages 149 - 170.

[9] Appellant's affidavit filed 16 August 2019, par 28; JBR11, pages 184 - 185.

[10] Appellant's affidavit filed 16 August 2019, par 29; JBR12, pages 186 - 187.

[11] Appellant's affidavit filed 16 August 2019, par 24; JBR7, pages 173 - 175.

[12] Appellant's affidavit filed 16 August 2019, par 25; JBR8, pages 176 - 179.

[13] Appellant's affidavit filed 16 August 2019, par 23; JBR6, pages 171 - 172.

[14] Appellant's affidavit filed 16 August 2019, par 26; JBR9, pages 180 - 182.

[15] Appellant's affidavit filed 16 August 2019, par 27; JBR10, page 183.

[16] Appellant's affidavit filed 16 August 2019, par 30; JBR13, page 188.

[17] Appellant's affidavit filed 16 August 2019, par 30; JBR13, pages 189 - 193.

[18] Appellant's affidavit filed 16 August 2019, par 33; JBR16, pages 197 - 201.

[19] Appellant's affidavit filed 16 August 2019, par 33; JBR16, pages 202 - 204.

[20] Appellant's affidavit filed 16 August 2019, pars 33 - 34; JBR17, pages 205 - 206.

[21] Appellant's affidavit filed 16 August 2019, par 31(i); JBR14, pages 194 - 195.

[22] Appellant's affidavit filed 16 August 2019, par 32; JBR15, page 196.

[23] Appellant's affidavit filed 16 August 2019, par 35; JBR18, pages 207 - 210.

[24] Thomas v Bass [2006] WASCA 59 [43] - [45].