Category Archives: appeals

The evidence is the only truth we know

One of the things non-lawyers find most problematic about litigation is the notion of truth in the courtroom. Litigation lawyers on the other hand, especially the battle-weary ones, realise how fraught, and indeed relative, such a notion can be.


It is perhaps one of the most thorny discussions one can have with a client, which ordinarily goes something like, ‘I know what you’re telling me is the truth but the evidence points in another direction…perhaps we should settle the case.”


It is this gap between what the evidence bespeaks and the version of events embraced by each party, which appears at the root of many of the cases that reach trial. In my experience, it is only the boldest of litigants who are willing to lie under oath and ordinarily it is more likely they are simply convinced of their own version over that of the other side.


Sometimes a particular version of events will seem plausible yet the way the evidence unfolds, especially in the hands of a capable advocate, casts some doubt on the favoured scenario. This is where the lay-person and the lawyer diverge.


Truth is as much a feeling for a non-lawyer, one uncorrupted by the analytical mindset that necessarily becomes a part of who we are as lawyers. The lawyer says that where a detailed analysis of the evidence casts sufficient doubt on that which may seem the most likely version of events, it cannot be accepted by the court, viz, it isn’t true.


Judges can also be affected by the same kind of ‘gut-feel’ that one version of events gives over the other. However, this can be the root of a host of problems when from this starting point they then construct their reasons. The clinical ravages of the appellate process await.


The recent case of Bradley v Matloob [2015] NSWCA 239 was the one that got me thinking about all of this. The plaintiff was approaching a set of traffic lights driving along a dual carriageway when a car travelling in the opposite direction made a right hand turn into her path. Whilst the plaintiff managed to avoid a collision with the vehicle, she lost control and collided with a truck further along the road causing her serious injury.


About 15-20 metres away there was an eye-witness to the accident (who we’ll call “P”). P said that the other car was a ‘tannish brown’ Ford with a black sun grille installed across the outside of its back window. P also said that as the Ford drove off along the street into which it had made its turn he decided to follow it until he observed it turn into a nearby factory unit. About 10 minutes later P drove into the factory unit and found a car that he thought was the same car as he had seen earlier and took its registration. He also drove around the whole car park to ensure there were no other cars like it. The registration P recorded was that of the first defendant’s car.


Seems pretty compelling at first glance. Yet the owner of the vehicle matching that registration, Mr Bradley, denied any knowledge of the incident when interviewed by the police.


The plaintiff also sued the Nominal Defendant, which for the uninitiated is a statutory body funded by a levy on CTP premiums to compensate the victims of car accidents where the negligent party is either uninsured or cannot be identified. So the dispute as to who should pay came down to one between the Nominal Defendant and Mr Bradley.


At the trial it was never suggested to Mr Bradley that he had lied about his involvement in the incident. Instead, the way it was put to him in cross-examination was:


“Q: If you had come within a metre of an oncoming car as you made a right hand turn that would be something that you would be well and truly be aware of?


A: Yes.”


The witness P’s evidence however, was heavily challenged in cross-examination, revealing two matters that enabled his reliability to be questioned:


  • He was shown pictures of Ford vehicles of clearly differing colours yet he described them both in the same way as he described the plaintiff’s vehicle, ie. ‘tannish’ or ‘tannish brown’ (at one stage, when shown a photo of Mr Bradley’s vehicle, P agreed that it was not the offending vehicle, though this was tidied up in re-examination by his barrister); and
  • He made repeated reference to the black grille on the rear window of the car he saw, yet the plaintiff’s car did not have one installed.


Both of these things, the trial judge was willing to overlook. However, here’s the rub, as it was skilfully submitted by Mr Bradley’s barrister – to find Mr Bradley liable the judge would have to have find that his evidence was not credible. Furthermore, the Court would have to find that Mr Bradley had in fact lied to the police shortly after the incident (and in court) in saying he had no knowledge of it.


Whether he was fully cognisant of the need to do so or not, the trial judge largely avoided this submission, which lay somewhat inconveniently in the way of the account he wanted to accept, ie. that of P. The knock-on effect of this failing was in Beech-Jones J’s view (with Leeming JA in agreement) to render the trial judge’s reasons inadequate by failing to ‘engage with, or grapple or wrestle with, the cases presented by each party’ (at [75]).


Nor did either of the other parties to the litigation suggest to Mr Bradley that he had lied. This resulted in a lack of procedural fairness, which placed the situation squarely in Browne v Dunn territory, a rule which also applies equally to judges (as pointed out by McColl JA at [6]).


The absence of a proper finding that Mr Bradley had lied left only one possible result: that the identity of the driver at fault simply could not be established…judgment reversed and entered against the Nominal Defendant instead!

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Appeals from the Local Court: when does a feeling of not getting a “fair go” become appealable?

One hundred thousand dollars is a lot of money for most people. With its jurisdictional limit now sitting at this height, the Local Court of NSW provides an important means of civil redress in this state.


Yet magistrates preside in an environment of increasingly busy courts whilst still having to meet a demanding standard of flexibility. They decide an accused’s liberty one day and then have to wrestle with the subtleties of a tricky little commercial matter the next. It is no easy task.


Putting natural inclinations to one side, perhaps this is why on some occasions, an unsuccessful party might feel as though the Court’s justice has been meted out in rather a rough and ready fashion. However, this is not always tantamount to error.


Below is a framework for assessing whether there are prospects that justify taking this next step; instead of just sucking up the loss and getting on with life.


They got the law wrong


This is the most basic of them all. If the magistrate has clearly misdirected themselves as to the correct legal principle/s you’re in good shape. Though you will need to demonstrate how this has affected the result.


Inadequacy of reasons


This is one that comes up a lot particularly when a magistrate has made their mind up but doesn’t feel inclined to consider and then say how they really got there. This is not an uncommon way for any of us to think and behave in everyday life and of course magistrates are no exception. Sometimes we just prefer the steak instead of the fish.


The guiding principle is that justice must not only be done but also be seen to be done. Reasons are the central means by which this end is achieved. It also enables the losing party to understand why they were unsuccessful and whether they have any grounds for an appeal. As the NSW Court of Appeal pointed out in Wiki v Atlantis Relocations (2004) 60 NSWLR 127 at 135-136:


It is not for nothing that in some bilingual countries the judgment of the court is given in the language of the unsuccessful party.   


One of the most succinct encapsulations of how the duty to give reasons operates in practice was given by Meagher JA in Beale v Government Insurance office of NSW (1997) 48 NSWLR 430 at 443 (and not surprisingly reads somewhat like a student manual on how to answer questions in a law exam). His Honour said a decision-maker should:


1. Refer to relevant evidence, but there is no need to refer to it in detail;


2. Set out any material findings of fact and any conclusions or ultimate findings of fact reached; and


3. Provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found.


Failure to take into account a material consideration


This normally arises where there is some test or set of elements to the cause of action one or a number of which the Magistrate has, on the face of the record (ie. the judgment), simply failed to factor into their reasoning process.




When the failure to account for a relevant matter becomes more a question of degree than failure to deal with it altogether, the focus turns more towards a question of reasonableness.


But it has to be something important enough to have had an effect on the result. The significance of the matter will therefore determine whether such a failure is truly an error (see Mason J’s well-known judgment in Minister v Peko-Wallsend (1986-87) 162 CLR 24 at 32). As Mason J said in Peko (at 41):


…in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no importance. The preferred ground on which this is done, however, is…that the decision is “manifestly unreasonable”.


This position was further developed in the recent High Court case of Minister for Immigration and Citizenship v Li [2013] HCA 18 where Hayne, Kiefel and Bell JJ described unreasonableness in terms of a decision lacking “an evident and intelligible justification”, ie. illogical.


Denial of Procedural Fairness


At its heart, a denial of procedural fairness involves some inability on the part of the aggrieved party (not self-inflicted) to put an essential part of one’s case before the magistrate and have it determined.


A common means by which this seems to take place in the Local Court is when the magistrate, perhaps in striving to deliver what they perceive to be the “right” result, goes outside the pleaded case.


It has been said on a number of occasions that the Local Court is not a ‘court of strict pleading’, but what does this really mean? What happens if a party runs and argues its case more loosely and then the court, sufficiently persuaded, follows that party so that eventually the case is decided in a manner which is somewhat different to how things look on the pleadings.


If you are on the wrong side of this situation, the first port of call is to see how your legal representative reacted to it at first instance.


Did they raise an objection (eg. relevance) to questions directed to the elements of the case not pleaded during cross-examination or when the evidence in chief was being led?


How was it dealt with in submissions (ie. was a submission made that this was not pleaded so the court should not decide the case on that basis)?


And thirdly, was the argument that the other party raised in submissions (but did not plead) met with as good an argument as could possibly be mustered under the circumstances? Otherwise, there is a risk that by not meeting the argument the party is taken to have acquiesced to it being ruled upon and potentially deciding the case.


For an HCA discussion of these matters see Dare v Pulham (1982) 148 CLR 658.


Beware of appealing factual findings

It is trite to say that in most instances findings of fact are not appealable. However, beware of a situation in which the appeal ground has as one of its foundations a challenge to the magistrate’s factual findings. Unfortunately, a party is normally stuck with those, however perverse they might seem. This is unless of course it forms part of that rather protean concept of a “mixed question of fact and law”, in which case it may be appealable with leave.


This is the moment at which you might consider giving me a call.

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