Goldsmith v Sandilands & Ors P91/2000 [2001] HCATrans 533 (23 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P91 of 2000

B e t w e e n -

TREVOR JOHN GOLDSMITH

Appellant

and

MICHAEL DARREN SANDILANDS

First Respondent

THE STATE OF WESTERN AUSTRALIA

Second Respondent

THE COMMISSIONER OF POLICE

Third Respondent

THE STATE GOVERNMENT INSURANCE COMMISSION

Fourth Respondent

GLEESON CJ

McHUGH J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 23 OCTOBER 2001, AT 3.33 PM

Copyright in the High Court of Australia

__________________

MR M.D. COLE: May it please the Court, I appear on behalf of the appellant. (instructed by Terrace Law)

MR G.T.W. TANNIN: May it please the Court, with MS K.E. McDONALD, I appear for the first, second and third respondents. (instructed by Crown Solicitor for the State of Western Australia)

MR K.N. ALLAN: If it please the Court, I appear for the fourth respondent. (of K.N. Allan, Solicitor)

GLEESON CJ: Yes, Mr Cole.

MR COLE: Your Honours should have before you the appellant's submissions, the written submissions of the first, second and third respondents. There is a brief response from the fourth respondent together with the appellant's reply. There should be the appellant's list of authorities and the first, second and third appellants' list of authorities.

Your Honours, this case concerns an appeal by a then serving police officer who alleges to have, in the course of a high speed pursuit, sustained injury on 26 June 1993, whilst a front seat passenger. There was no collision in that high speed pursuit; instead he alleges effectively that he sustained the injury during the high speed pursuit as a result of buffeting. Part of that pursuit was off road. Issued proceedings in the Perth District Court - - -

GLEESON CJ: You can take it that we have read the judgments and the submissions.

MR COLE: Yes, thank you, your Honour. Your Honour, in relation to the matter essentially, of course, the Commissioner found that there was a finding that the appellant had injured himself at indoor cricket, so at the trial he was faced with - essentially he understood there was two areas he had to deal with: paragraph 19 of the defence it was alleged that he had "suffered injury . . . whilst playing indoor cricket . . . " Now what it was not particularised, and it is not suggested that it is improper, was that he was not aware that what he had to meet at the trial was that there was an allegation that he admitted to persons that he had suffered an injury at indoor cricket and, in particular, of course, there were three admissions to that effect: There was the admission to the first respondent, Mr Sandilands, who alleged in his evidence that he collected the appellant following his game of indoor cricket and it is alleged that the appellant admitted to him that he had sustained injury. The appellant denied both of that: he denied, first of all, that the first respondent had collected him from indoor cricket and, secondly, that he had admitted that he had sustained injury.

There were two other admissions relied upon by the respondents. It was the admissions of fellow police officers, Cross and Harmer. Now, again, to some extent, that was not a matter that was apparent to the appellant at the commencement of the trial, although it became apparent, of course, during the cross-examination of the appellant, when these three issues were put to him. Of course, the nature of this trial was one in which it lasted somewhat longer than any of the parties had expected, and that perhaps may be fortuitous from the appellant's point of view, but, nevertheless, after the four days in April, the matter was not concluded and at that stage the evidence of the appellant's case had closed and the evidence of the first respondent had commenced, he had given his evidence and was being cross-examined.

It was during that adjournment the appellant became aware that, for the first time, although it had been put to him in cross-examination, the items that had been put to him in cross-examination with regard to the street where it was alleged that the first respondent had collected him, did not gel with the street that he had visited and it was as a result of that, when the case resumed in July, that application was made for the appellant to be able to reopen the case or to call rebuttal evidence in relation to that point. That application was made on two occasions, but on both occasions it was declined by the Commissioner. You will be aware, of course, that before the Full Court, the Full Court held in relation to that point, the Commissioner's discretion had erred in that regard - - -

GLEESON CJ: Could you just indicate if that leave had been granted, what exactly was it that the appellant wished to prove?

MR COLE: I think there is four features in relation to that. One of the difficulties I have, your Honour, is that although it appears that his Honour Justice Templeman would have read the affidavit that was filed in the Full Court, the Full Court formally did not grant leave to lodge - - -

GLEESON CJ: No, this is quite a direct question, Mr Cole. You are complaining about the fact that you were not permitted to reopen your case to prove something.

MR COLE: Yes.

GLEESON CJ: And my question is, to prove what?

MR COLE: The evidence would have proved in relation to four areas, your Honour. There was, of course, this dispute as to where the location of the - - -

GLEESON CJ: I was not really asking for an explanation of the incident. What was it that you wanted to prove?

MR COLE: We wanted to prove that, given the features of the street that the first respondent identified, they were not the features that were located in the street where the indoor cricket centre was located.

GLEESON CJ: So you wanted to prove that what was put to your client in cross-examination about the physical geographical circumstances in which he made this alleged admission, was wrong.

MR COLE: Yes. The important point in relation to the first respondent's evidence was he could not recall the name of the street but he was emphatic that he recalled several features of that street.

GLEESON CJ: Am I right in saying that what you wanted to prove was that the geographical circumstances in which this alleged admission was made that had been put in cross-examination, was wrong?

MR COLE: That is correct, your Honour, yes. So that those features were incorrect, but it was further than that: that the features that were being identified were, in fact, the features that did exist in a present street and so that it would have been open to a trial judge to have formed the view that what he said was his recollection was, in fact, the features of that street today and that, further, we would have led evidence to the effect that one of those features did not exist in that street back when it was alleged back in 1993.

GLEESON CJ: Now what exactly was the relevance of that? I just want to understand what the importance was of the evidence that you were deprived of meeting.

MR COLE: The relevance of it is that the providing of the geographical features, to use your terminology, or the physical features of the street, was with a view to bolstering the first respondent's credibility in relation to this. That is, he said, "I went out to the street because I recalled" certain features about the street.

KIRBY J: Is it your point that had you been allowed to call evidence, you would not only have shown that the evidence was wrong but that it was false and perhaps deliberately false?

MR COLE: Yes. It has certainly been the position that is adopted by the appellant both before - during the course - of the latter stages of the trial indeed, that there was aspects in which that would be the reasonable conclusion, that is, that this evidence was fabricated and partly that arises out of some of the disputes in terms of on which side of the street is the indoor cricket centre located, because whilst one could accept that he might have been confused about some of the features, if it is a situation that most of the features he has got wrong and he has got the indoor cricket centre on the wrong side of the street and it is in the middle of the street.

GLEESON CJ: Now there is something that is puzzling me procedurally, and there is probably a very simple answer to this, Mr Cole, about the procedures that I do not understand, but if what you wanted to do was contradict some evidence of the first respondent about what you say is the verbal, why did you need anybody's leave at all? Why could you not just call evidence in reply? Did you not have a case in reply?

MR COLE: Well, we had closed our case at that stage.

GLEESON CJ: Your case in-chief?

MR COLE: Yes.

GLEESON CJ: If you wanted to call evidence to contradict evidence given by the first respondent in the first respondent's case, why did you need anybody's leave to do that? Why did you not do it in your case in reply?

MR COLE: Well, I understand that, except it was quite clear from the trial Commissioner's point of view he was not going to allow that evidence to be adduced in any case.

GLEESON CJ: In reply? At the moment I would like to understand why you needed the leave you sought?

KIRBY J: Is the procedure in Western Australia - in some parts of Australia the procedure is different. In the old procedure in the Federal Court in Victoria you did not deal with things in your own case and store them up for your case in reply, you just called it on the run; whereas in New South Wales the procedure is fairly strict: your case in-chief, the respondent's case and your case in reply. Now, is that not the procedure in Western Australia?

MR COLE: That would certainly not be my understanding of the position of this State. In order to call the rebuttal evidence, you would be requesting the court for permission to do that in relation to - - -

GLEESON CJ: Could you tell me why?

MR COLE: It is simply because that is the practice that is adopted here, your Honour.

GLEESON CJ: What is puzzling me is this, and I am terribly sorry, it may be because I do not understand the precise relevance of the evidence you wanted to lead, but your client gave his evidence and he was cross-examined and certain things were put to him in cross-examination, then the first respondent gave evidence and said some things about the circumstances in which this alleged admission was made to him, is that right?

MR COLE: That is correct.

GLEESON CJ: Forget about the other respondents for the moment. Why did you need leave to call evidence in reply to the evidence of the first respondent, which demonstrated that the first respondent's evidence about the geography could not have been correct?

MR COLE: Because that would be the practice in this State. The Commissioner in his reasons for decision and his rulings made it quite clear that from his point of view these issues had been put to the appellant in cross-examination and he had the opportunity in cross-examination to answer them and/or in re-examination, but that is as far as it goes.

GLEESON CJ: Well, I am afraid I am going to have to - - -

MR COLE: I am sure my frequent address - - -

GLEESON CJ: - - - perhaps make an.....that there was a need for the leave that was sought, but just at the moment I cannot understand what the need was. Did you have a case in reply?

MR COLE: We had partially a case in reply in relation to the matter, your Honour.

GLEESON CJ: Did you call your client in the case in reply?

MR COLE: Well, if we were permitted to we would have put - - -

GLEESON CJ: Why did you need anybody's permission to call your client in your case in reply?

MR COLE: Because that would be the practice in this State.

KIRBY J: Well we will have to get to the bottom of this. Was that a mistake on your part that you thought you needed leave and you did not, that you have a case in reply to deal with matters that are new and that have come up, as if the position in New South Wales, or is - - -

HAYNE J: That is not the position in Victoria. Indeed, in 20 years in practice in Victoria I never encountered a case in reply, never.

KIRBY J: That is why I referred to the Federal Court - - -

MR COLE: Well, I had never encountered a case in reply either, your Honour.

KIRBY J: - - -because the Federal Court used to apply the Victorian practice, which was you never saved up something for your case in reply. If it came up in what we, in New South Wales, would call the defendant's case, you did not ask for it to be marked for identification and tender it in your case in reply, you just tendered it on the run. I do not think that is the practice in this State.

MR COLE: Yes. The only issue - - -

CALLINAN J: Certainly I agree with Justice Hayne. In Queensland in more than 30 years practice I can remember one case.....

KIRBY J: It comes from the fact that New South Wales was the most pure State, pre-judicature, and the Judicature Act changed the practice in other States, including Western Australia.

MR COLE: I think the only other point in relation to that would be that from the Full Court's point of view they seem to have worked on the assumption that there was no, as it were, right of rebuttal.

GLEESON CJ: Everybody has worked on the assumption?

MR COLE: Yes.

HAYNE J: And that would flow, I think, ordinarily, or would seen to flow in Victoria, from the proposition that you have advanced the whole of your case on the issues, once for all, leave aside the special circumstances of insurance, where there may be a case to split - see Protean v American Home Assurance. Query also defamation, though you could count on the finger of one hand the number of defamation cases that go to trial in Victoria, but you put everything you have on the matters of substance at once and if, as on one possible point of view here, there is a question that goes to credit rather than to substance, why should you not be bound by the answer given by the witness anyway? Why should you be permitted to pursue what, on its face, appears to be a collateral issue, whether with leave, without leave, in-chief or in reply?

What was the relevance to the issues being litigated whether this man gave an accurate account of what the street looked like? It sounds as though, to me, you wanted to call evidence that demonstrated simply that he was a liar or inaccurate.

MR COLE: Well, that his credibility may be undermined, I accept that point, but - - -

HAYNE J: Well why should you have leave ever to call evidence to that collateral issue? Perhaps I am misunderstanding the case.

KIRBY J: As I understood it, you put to us that you were surprised.

MR COLE: We were taken by surprise in relation to the point, that is - - -

HAYNE J: Surprised or no, why should you have leave to pursue a collateral issue?

MR COLE: I think it is a question of the fairness. The determination of the Commissioner was that this was the key evidential point.

KIRBY J: And the Court of Appeal, the Full Court had supported you on this. They found that you ought to have had the opportunity to answer.

MR COLE: Yes, so that their position was is that, yes, it was accepted that we were taken by surprise in relation to that and, yes, in relation to that point and another issue upon which we sought leave to adduce evidence - - -

CALLINAN J: The Commissioner described the finding on this issue as a key finding.

MR COLE: Yes, and I think that his whole determination turns around us. If he does not make the finding that he accepts the evidence of the first respondent and Cross and Harmer - - -

GLEESON CJ: I think we have got to be clear as to what is the issue. The issue is whether or not your client injured his back playing indoor cricket. The evidence relied upon by the respondent to prove the fact in issue was evidence of an admission made by your client. So whether or not your client injured the back was the issue; whether or not your client admitted that he had injured his back was the evidence relevant to the fact in issue, but the matter about which you wanted to adduce further evidence was a matter relating to the circumstances in which, according to the first respondent's evidence, that admission was made, relating particularly to the street in which it was made, is that right.

MR COLE: That is correct.

GLEESON CJ: Suppose it had been something slightly different. Suppose the first respondent had said, "I remember him making this admission because it sticks in my mind that he was wearing a green tracksuit with the emblem of a cricket team on it, when he made the admission", and what your client wanted to establish was that he had never owned a green tracksuit with an emblem of a cricket team on it. Would that have been a matter on which your client would have been permitted to call evidence or would that be a matter going only to the credit of the first respondent?

MR COLE: I think because the issue was so central here and because it is not just simply the identification of one feature, it is the identification of several features that he uses as a basis for asserting that he went to that street. So it is not solely just a question of credit; he is saying, "I went to this street because this street had these features".

GLEESON CJ: Well you say it is not a collateral matter that went only to credit, it was a matter of circumstantial significance - - -

MR COLE: This is the key issue, because obviously admissions are easy to allege but difficult to try and refute. So that we have a situation in which there are no witnesses to this; there is just the word of one person against another. So that in relation to that point, because of the first respondent's acknowledged uncertainty about the name of the street and, indeed, even the suburb of which the street was located, evidence as to where the indoor cricket centre was located and its features was directly relevant. It is not a collateral issue, it is the central issue.

GLEESON CJ: Was your application for the leave you sought, and that everybody agrees you needed, an application that was made after the first respondent's case had commenced?

MR COLE: Yes.

GLEESON CJ: So it was an application to reopen your case?

MR COLE: Yes, and that came about because when it was put to the appellant he could not recall the features of the street and there was not any clue to his counsel. We had no idea that the location or the features or the features of the street was going to be of importance.

GLEESON CJ: So it comes to this: although he was cross-examined about the matter, there were features of the cross-examination that, you say, did not give him a proper opportunity to deal with all the alleged circumstances of the admission. He finished his case. The first respondent gave evidence and, in the course of giving evidence, said things about the circumstances of the alleged admission that your client wanted to contradict because it went to the reliability of the evidence of the alleged admission itself, is that right?

MR COLE: Yes. The admission could not have been made if he did not go to the street.

GLEESON CJ: And the local practice is that you were not able to contradict that by a case in reply; your only opportunity to contradict it was by being given leave to reopen your case and you sought that leave and were refused.

MR COLE: Yes. It would be a question of whether the interests of justice were served by that.

KIRBY J: Yes, but your answer to the Chief Justice's question was, you sought it and you were refused?

MR COLE: Yes. We sought on two occasions - - -

CALLINAN J: Mr Cole, was there not a finding by the Commissioner, or was there not a statement by the Commissioner, that the way in which your client was cross-examined about this matter was misleading? It was not merely that a matter was not put to him, but a misleading suggestion about a street.

MR COLE: No, no, it was not. The Commissioner did not pick that up; that was the Full Court said that.

CALLINAN J: The Full Court described the cross-examination misleading in relation to this aspect of the matter, that is, the dress of the indoor cricket team. Is that right?

MR COLE: Yes, that is correct. So that is Templeman's decision; he said it was put in a misleading manner.

CALLINAN J: All right. Now, I ought to ask you another question. The evidence statute over here, what is the Evidence Act in Western Australia?

MR COLE: It is the Evidence Act, yes, your Honour.

CALLINAN J: The Evidence Act. Does it have any bearing on this? Now I ask you that because in Queensland and other places there might be a statutory basis for cross-examining as to a collateral matter if it is relevant to the subject matter of the action. Now do you have a provision of that kind in this State?

MR COLE: I am not in a position to address your Honour; I would say that in relation to the matter, it is not a matter that has been raised and I - - -

CALLINAN J: I know it has not, but it may not be a matter that we can ignore. I still would like to know the answer.

KIRBY J: You will have to have a look at that.

MR COLE: Yes, certainly.

GLEESON CJ: Is it the case that the Commissioner never became aware, because of his failure to hear the evidence you wanted to lead, that the first respondent's evidence concerning the geography of this admission could not have been correct?

MR COLE: The Commissioner was aware. He did not have an affidavit produced to him as did the Full Court, obviously, but the Commissioner was made aware, during the course of submissions, what the nature of that evidence would be.

GLEESON CJ: He was aware that you wanted to try and prove that?

MR COLE: Yes.

GLEESON CJ: But when he came to make his decision, what did he say about that fact?

MR COLE: Well, his position essentially was to say that this was an issue that had been put to the appellant during the course of cross-examination and he deals with that in his reasons for decision again. He says that this was put to him and the appellant could not recall any of the features of the street.

KIRBY J: Does that imply that your mistake was not then asking for an adjournment so that before the end of your case, or before the end of the presentation of the evidence for your client, you could call the evidence before the defendant had to go into evidence? Is that the practice in Western Australia?

MR COLE: Well, the first application was made whilst the first respondent was giving his evidence. It was made during the course of cross-examination.

GLEESON CJ: So it was made after you had closed your case?

MR COLE: That is correct, yes.

KIRBY J: Is that suggested to be your mistake? The Full Court, I think, held that the Commissioner ought to have allowed you to reopen your case, is that correct?

MR COLE: I do not think it is a question of a mistake. The Full Court did hold that, yes, we had been taken by surprise and that we should be permitted to adduce that evidence. It only came to - - -

KIRBY J: You got to the first step instead, but you came unstuck at the second step, because the Full Court said that it would not have made any difference in this case.

MR COLE: Yes, I understand.

KIRBY J: You are before us because you say this was the crucial point in the case; you were taken by surprise; you ought to have had a chance to meet the matter on the crucial point; the Full Court says you ought to have had that chance; you did not get it and you want to have that chance?

MR COLE: Yes. But it goes a bit beyond that in the sense that there was a further issue, that is the question of the physiotherapist. Again, that was a matter which again took the appellant by surprise in that at the commencement of the trial the defence was amended to allege that the injuries that he had could have arisen from an accident subsequent to the high speed pursuit, that is on 10 April 1995.

GLEESON CJ: Mr Cole, you do not want to devote too much of your energy to pushing at an open door. You won in the Court of Appeal - - -

MR COLE: I understand that, your Honour.

GLEESON CJ: - - -on your complaint about the refusal for leave to reopen your evidence. You do not, at the moment - I hesitate to say you may be permitted to deal with this in reply, but you do not at the moment need to persuade us that the Full Court was right in the things it decided in your favour. What you have to persuade us is that the Full Court was wrong in that aspect of its decision that was adverse to you.

MR COLE: I appreciate that, your Honour. The position, in summary, that we put in relation to that, is to say - of course we say, if we had of been permitted to adduce that additional evidence, that would have had - well, perhaps the starting point is: the difficulty I have with the Full Court's decision is that the Full Court is essentially speculating as to what would have been the effect of particular evidence on the Commissioner and the difficulty with that is, is it seems to me it is fundamental at any trial that the trial judge is going to listen to all the evidence. He may, during the course of a trial, have some preliminary views as to credibility of witnesses, but at the end of the day his final view as to credibility must surely be arrived at after he has heard all the evidence and weighed it up.

So that, as much as one might wish to say - and clearly the trial Commissioner was damning of the credibility of my client - it is not an answer to simply say that because he was so damning of my client's credibility that that evidence would not have made, effectively, any difference, and that is why I have referred to the Stead decision in relation to the matter. The Full Court did not, of course, consider any of those decisions, but impliedly they appear to be dealing with it on the basis that they do understand that this is a question of whether an injustice has been suffered.

KIRBY J: But you will understand that often when people lose cases they say, "If only I had been able to call this; if only I had done this", and therefore this Court in Stead has said there will be cases where, although a procedural injustice has happened and a person has been prevented from calling evidence, the evidence could not have affected the result? But your contention is that the way they reason - - -

MR COLE: So fundamental.

KIRBY J: - - -they omitted to address the fact that this was the cardinal point in the case and who can say what a reasonable Commissioner or reasonable fact-finder would make if you could rebut the truth-telling of the key witness for the response.

MR COLE: Yes, correct, because the Commissioner had said this was the key finding, the key finding about the admission after indoor cricket.

KIRBY J: But how did the Court put the point in Stead?

MR COLE: The Full Court tried to deal with the matter by saying it did not actually refer to his reasons for decision where he made that key finding, but it noted in the application that the Commissioner had said at the time, this was a key evidential point. Let us just refer you to that. The Full Court then seeks to explain, as it were, away why that - this is at AB 931 at around line 31. It says:

It is true that the Commissioner referred to this matter as "a key evidentiary issue".

They have quoted the words that he used in relation to the first application to be allowed to call the additional evidence.

At that stage of the trial, it was a fair observation. But it was early days. The Commissioner had not then heard from Constable Sandilands -

That position is incorrect. He had started giving his evidence, so he had concluded his evidence-in-chief and he was being cross-examined:

whose evidence was tested in an extensive cross-examination. Nor had the Commissioner heard evidence from the two police officers who said the appellant had spoken of his cricket injury.

KIRBY J: The key to your submission is at 145 on Stead where the Court said that:

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 compliance with the requirements of natural justice could have made no difference.

MR COLE: That is precisely it. I think the effect of that decision is to say that in those types of issues it idle to, in fact, speculate.

GLEESON CJ: How did the Full Court deal with Stead.

MR COLE: They did not deal with that issue. As I said in my submissions, they appear to deal with the matter on the understanding that they understand that this was a question of whether there had been an injustice.

GLEESON CJ: Were they referred to Stead.

MR COLE: No, they were not referred to Stead in the decision. Not in the arguments, your Honour, no. I think it is fair to say that the appeal that lasted two days was more concerned with challenges in respect of credibility as well as those other two points and, therefore, I think it is fair to say because of the number of issues that were involved that issue just simply became lost in relation to it. So, essentially, they then deal with the issue, not on the basis of Stead's decision but they come around and look at it on the basis of saying, "Well, we are left with a decision in which we are not going to conclude that the Commissioner has palpably misused his advantage, taking Devries or to the State Rail Authority, that they were not convinced that there was an insufficient foundation for his determination.

KIRBY J: There are two points here. One is whether you can override a credibility finding and whether you have a glaringly improbable conclusion and so on.

MR COLE: Yes.

KIRBY J: Now, that is one problem, but that is not, as I understand it, the case you are presenting to us. You say that this is a case where it has been held and you assert that you have had procedural unfairness but in these circumstances if the issue affected the acceptability of the evidence of a particular witness then you cannot say that however much the first decision-maker was impressed with that witness that that overrides your entitlement to have that matter redetermined because you have been denied the chance to attack the crucial evidence.

MR COLE: Precisely, but I think that is the way the Full Court dealt with it. The Full Court really just saw this as just being challenges to credibility and that, it seems to me, is the real basis upon which they dismissed the appeal, that having found that, "Yes, we should have been granted permission to reopen in relation to those two issues" nevertheless, their view was to deal with it as if this was a question of the preponderance of evidence on a matter of credibility. That is why I referred you to those cases because Templeman J who, of course, provided the major decision in relation to it then goes on to say:

The Commissioner was entitled to form a favourable view of Constable Sandilands' credibility. And he was entitled to accept the evidence of the other police witnesses. I think it fanciful to suppose that the outcome of the trial would have been different if the appellant had given evidence about the location of Strikers.

So, they do very much see it as a credibility issue, that really my client has such a hurdle to get over in relation to credibility, that it does not matter what evidence he was going to adduce in relation to this, that the Commissioner's view in relation to credibility would still stand and we say that is the wrong criteria to look at The question would have been, having accepted that he should have been able to adduce the evidence, then if you look at that evidence, unless that evidence is so peripheral - and, I think, to some extent, this is a slippery slide because it does involve an appellate court speculating in terms of what would be the effect of that evidence upon the trial judge, but unless it is so peripheral, or unless it - perhaps what I would call a minor judicial slip then, inevitably, it seems to me a retrial should be ordered because he were have a situation - - -

GLEESON CJ: Your argument amounts to this, does it not, the principles are as stated in Stead.

MR COLE: Yes.

GLEESON CJ: Those principles were not applied by the Full Court which, for whatever reason, treated the case as one that turned upon examining minutiae of a number of evidentiary issues, whereas they should have treated the case as one that involved, in effect, a denial of natural justice.

MR COLE: Yes.

KIRBY J: Stead is pretty regular stuff in courts of appeal. I mean, it used to come up three or four times a year in the New South Wales Court of Appeal. It is a surprise that it is not referred to. You did not raise it in your submissions, did you?

MR COLE: I did not raise it. As I said, much of the argument - - -

KIRBY J: That is your default.

MR COLE: I am sorry?

KIRBY J: It is your duty, as counsel, to bring it to the attention of the Full Court as a matter - - -

MR COLE: I appreciate that, your Honour. Essentially, it seems to me, the difference here, of course, is that it is the basis upon which the Full Court has made its determination is not on that question of the interests of justice or whether there has been a denial of natural justice in terms of this. The Full Court has dealt with it on the basis of seeing it as a credibility issue. I take it that you do not want me to address you in relation to the physiotherapist?

GLEESON CJ: I think we have understood your submissions. What seems to have gone wrong, if I may say so, in the Full Court - and I am not suggesting this is necessarily determinative of the outcome in this Court - is what appears at page 899 in paragraph 11.

MR COLE: Yes. Hardly that can be seen as the explanation for it, your Honour. There were considerable disputes in relation to issues of credibility, and as I said, it occupied two days in the court.

GLEESON CJ: Sometimes it is possible to lose sight of the wood for the trees.

MR COLE: I think there is an aspect in which that did occur, yes.

KIRBY J: Not only by judges.

MR COLE: Certainly, no, your Honour. Perhaps with the benefit of hindsight I should not have gone before with so many grounds and I should have concentrated on a number of grounds but the difficulty, of course, always is is that one never necessarily knows which grounds will appeal to an appellate court in respect of matters and some of the grounds in relation to the challenges of credibility, of course, did get up which, to that extent, might be regarded as somewhat unusual and that we have persuaded the Full Court that some of those grounds upon which she based these findings of credibility were not open to her, and so to that extent it was justified in raising at least some of those grounds.

KIRBY J: The case of Stead is somewhat analogous because that was a case not where a party wanted to call the evidence and could not but where the trial judge said, "Don't worry about that, don't go on about that".

MR COLE: Yes.

KIRBY J: Therefore the evidence was not called and the judge determined the matter on his disbelief of the witness who was the subject of that action in stopping the evidence.

MR COLE: I think correctly the position was the evidence was called but the submissions were not made in relation to it. So that we would say this was in fact - this case is more compelling in the sense that here is a situation where in Stead they were not allowed to make submissions - the evidence was before the judge. Here we were not allowed to adduce the evidence which we would say was compelling, let alone make submissions that would have arisen from that evidence. So that it obviously depends what value one sees in counsel's submissions in relation to matters but, potentially, it seems to me, in this case it is more compelling, not being able to give the evidence as opposed to not being able to make the submissions on the evidence already given.

Perhaps, in Stead the criticism was that the judge was indicating he was going to go one way but then, apparently, much to the surprise of counsel, he ruled the other way against the appeal. That is, it seems to me, where the injustice occurred. He would have reasonably assumed, from what the trial judge had said to her, that he was going to rule a particular way but did not.

GLEESON CJ: Mr Cole, I just want to be sure I understand the facts correctly in one respect. In your case before the case was closed, you called the evidence of some team mates of your client to prove that they had never seen him suffer any apparent injury at indoor cricket, is that right?

MR COLE: Yes. As best we understood the case was that it was being alleged he had suffered injury at indoor cricket on or about 22 June and to try and meet that case as best we could we called team mates who essentially gave evidence to say that they had no recollection of him sustaining an injury.

GLEESON CJ: I just wanted to understand that, thank you.

MR COLE: Yes. So that was the case that we thought we were meeting but in fact the case that we really had to meet was the admission. What this case essentially turned on were three admissions.

GLEESON CJ: Yes, but just a minute. It was very clearly put to your client in cross-examination that he had made these admissions, was it not?

MR COLE: Yes. We are not disputing that. We never disputed it before the Full Court.

GLEESON CJ: So, long before you closed your case you knew you had to meet a contention that he had made admissions.

MR COLE: Yes. What we did not understand was that the features of the street that were being put to my client, because he had no recollection of the street - it needs to be remembered that he was not a regular indoor cricket player, he was a casual member of the team who was called in when somebody else could not play, so, he was not a regular player there. So that when it was put to my client about the features of the street, he could not recall any of the features of the street, he could not even recall the name of the street. The best he could do was he identified the name of the cricket - which was the Strikers - - -

GLEESON CJ: Yes, but what you wanted to prove by the evidence that you sought leave to adduce was that the first respondent was incorrect, at least in so far as he described the geographical location of the place at which the alleged admission was made.

MR COLE: Yes. The only concern: I have the geographical location, I do not mean in the sense of the street name, I mean the features of the street. He identified bollards, he identified the indoor cricket centre as being on one side - - -

GLEESON CJ: You wanted to prove that there was at least one aspect of his evidence concerning these alleged admissions that you could show to be wrong?

MR COLE: We would say there was more than one, yes, but at least one, yes. Several is the - so that from the appellant's position, the only things that he got right were that it was in a cul-de-sac - there is a lot of streets which are cul-de-sacs - and that there were bollards at the end of the street. Again, there is a lot of streets nowadays that of course have bollards at the end of the street, but he did not get the colour of the bollards right and he did not get the suburb right. I suppose he got it right that it was south of the river, but that is, you know, a 50-50 choice whether it is north of the river or south of the river in Perth.

So that if one looks at the features that he got wrong it became quite compelling as to why would the first respondent's evidence be accepted that he went to that street, if he got all of those features wrong, especially when confronted with an emphatic denial that the admission was made. That was the crucial point, because the only way in which the appellant can effectively disprove the admission is to prove that he never went to the street.

GLEESON CJ: Now, how much time do you think you will require to complete your argument?

MR COLE: Half an hour, tomorrow.

GLEESON CJ: You can have a quarter of an hour now and then a quarter of an hour tomorrow.

MR COLE: Thank you. I think perhaps briefly in relation to the physiotherapy evidence - I know, again, that is a matter that was succeeded before the Full Court on but there is a point that I would like to raise in relation to that point that does not appear to have been picked up by the Full Court. The reason for this is because - and I am aware that - I do not wish to take too much of your time on issues of credibility in relation to this, but the Full Court had said in relation to the refusal of the Commissioner to allow us to recall the physiotherapist.

Perhaps just briefly, the reason that became important was because the appellant had given evidence in relation to the motor vehicle accident on 10 April, that he had actually, coincidentally, seen the physiotherapist that morning before the motor vehicle on 10 April 1995 and that he had been booked in to see the physiotherapist again for a further treatment the next day. Now, the appellant's evidence was to say that, "The accident did not affect my injuries". He went on to give hearsay evidence to the effect that the physiotherapist had confirmed that. In fact, the physiotherapist apparently wanted to say that he was better for the accident, that it had loosened him up a bit.

In relation to that point, the Full Court said, "Well, that point does not become relevant because of the findings that are made by the Commissioner that at the end of the day he was not satisfied that the accident of 10 April 1995 had any major impact upon his injuries. Again, it was used by the Commissioner in relation to a finding of credibility. This is dealt with at point 4 on page 902-3 of the reasons for decision of Templeman J. We challenged the finding of credibility in relation to this and the Full Court said:

Although the Commissioner did not accept the appellant's evidence that the April 1995 accident had not aggravated his existing injury in any way, this becomes largely irrelevant because of the Commissioner's conclusion that the accident had little effect on the appellant's symptoms. In any event, the Commissioner was entitled to reject the appellant's evidence. It is submitted that the evidence was uncontradicted but that does not mean it has to be accepted.

Now, in relation to point 4, point 4 of the Commissioner's reasons for decisions is contained at 852. I think I have you referred you to it. I apologise for this, that - so, at point 4, he says that:

The evidence of each of Mr McIntyre, Mr Baptie and Mr Harty needs to be considered in the light of the evidence as a whole. On the issue of an indoor cricket -

I am sorry, I am referring to the wrong page, I am sorry.

KIRBY J: Could you identify the page?

MR COLE: This is 842, I apologise. This is at line 41 on page 842. It says:

The plaintiff gave clear and unequivocal evidence during his evidence-in-chief that the motor vehicle accident on 10 April 1995 did not aggravate his existing injury in any way. In cross-examination he accepted that in relation to this accident he reported to the officer-in-charge of the police crash section that "after being examined I was released with the advice that I should rest as it appeared that I may have mildly aggravated my pre-existing spinal injury. At this time I went off duty and returned to my home". I do not accept the plaintiff's evidence that the motor vehicle accident on 10 April 1995 did not aggravate his existing injury in any way.

So that there was an issue in which it was clear from the Commissioner's findings in respect of credibility that he focused on that accident on 10 April. We were not permitted to call the physiotherapist's evidence. If the physiotherapist's evidence had have been called then that should have had the effect, if it confirmed the appellant's evidence, that the injuries were not in any way aggravated but essentially the Commissioner was using it to make an adverse finding, albeit on the question of causation, at the end of the day, in his reasons for decision. He did not see it as significant because he essentially attributed the injuries to the indoor cricket.

So that it was an issue in which - it was still a live issue because it would have related to one of the bases upon which the Commissioner had justified his findings of credibility.

CALLINAN J: Mr Cole, Justice Templeman said that there was an error. Can you just point to that part of the judgment where his Honour said that it was error, where his Honour explained that the error did not cause an injustice. Having made the finding and his Honour saying he would come back to it, I just cannot pick up at the moment where Justice Templeman came back to the error in his question of justice to your client, that is the error of .....

MR COLE: Your Honour, this is on page 904 of the reasons for decision where he says:

In my view, the Commissioner erred in failing - - -

CALLINAN J: Yes. He says he will come back to it.

MR COLE: Yes, he comes back to it.

CALLINAN J: Where does come back to it.

MR COLE: Then he comes back to it - I am sorry, your Honour - he comes back to it at 931. This is at line 18:

In these circumstances, I return to the question whether the appellant suffered any prejudice as a result of the Commissioner's refusal to allow him to give evidence about the location of the Strikers indoor cricket centre.

Then he goes on to refer to the evidence. So that he is essentially coming at it again on the basis that he is dealing with it as a credibility issue rather than a question that relates to where there is - - -

CALLINAN J: That is all right, I just wanted it explained to me.

MR COLE: Yes. In the course of the submissions we have also raised a number of issues which deal with the aspect of whether - especially in relation to the documentary evidence along the notion that whether there was a sufficient foundation for the Commissioner to have made the determinations that he did. Now, there were two documents in respect of that matter which we would say are particularly compelling and if I refer you to these - - -

GLEESON CJ: But if he believed the evidence of the police officer about the admissions, there was obviously an evidentiary basis for his conclusion, was there not? The fact that there was other evidence in the case that tended the other way does not alter that circumstance. If he believe Constable Sandilands about the admission that was made to him, he was entitled to conclude that your client had hurt his back playing cricket, was he not?

MR COLE: I cannot say that if one looks at it as being - well, it is not glaringly improbable. Yes, it is open to him in relation to that point but when one looks at - I am not suggesting that this case is as compelling as the State Rail Authority Case where there were lots of documentary evidence and essentially no challenge but here there is a situation in which there are two documents which the first respondent has signed. Those two documents contradicted his oral evidence.

They contradicted in two ways. One was that they do not contain anything in those two documents that raise this question of the admission that the appellant admitted to him that he had sustained an indoor cricket injury. Those two documents are significant documents.

GLEESON CJ: Why do you say that contradicts his evidence? It might throw doubt on his evidence but that is a different thing.

MR COLE: I accept your point in the sense that it may throw doubt but it throws significant doubt in relation to that issue because he is dealing with it in relation to the statutory declaration. He is dealing with the SGIC investigator. His explanation as to why he did not tell the SGIC investigator is because the SGIC investigator did not ask him. I think that is a serious credibility issue in relation to him but there are other aspects in relation to him.

GLEESON CJ: Perhaps you can come to that tomorrow. I am bound to say, Mr Cole, I would have thought that if your first point is your best point, as I assume it is, it is in the interests of your argument to elevate the importance of this verbal admission and not to bury it in a morass of detail and possibly contradictory evidence. I would have thought that it would add weakness rather than strength to your case to say that this ultimately turned upon the evaluation of a great many pieces of evidence. However.

MR COLE: I understand that, your Honour.

GLEESON CJ: I want to ask a question of Mr Tannin and Mr Allan before we adjourn. This is for the benefit of counsel in following cases, Mr Tannin, that is all. How long do you think you will be in your argument?

MR TANNIN: Your Honour, the factual premises which my friend relies upon to indicate the significance of this evidence we challenge and I would need to take your Honours to the evidence.

GLEESON CJ: My question to you is, how long do you think you will be?

MR TANNIN: Accordingly, I would be about an hour.

GLEESON CJ: Mr Allen, what about you?

MR ALLAN: If it please the Court, I anticipate that all matters will be dealt with by the time it comes to my turn.

GLEESON CJ: I think that tells me enough to give an indication. We will adjourn this case until 9.30 tomorrow morning and we will not list the first of the special leave applications until 11 am. We will say not before 11 am for the first of the special leave applications.

AT 4.30 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 24 OCTOBER 2001