INZAURRALDE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and CRIPPS JJA 8 October 1992, 28 October 1992 [1992] NSWCA 115 APPEAL from District Court — Verdict for defendant in damages claim. APPLICATION FOR LEAVE TO ADDUCE FURTHER EVIDENCE — Meaning of principle that further evidence be such as could not with reasonable diligence be obtained for the trial: Commonwealth Bank of Australia v Quade (1991) 65 ALJR 674. Mahoney JA On 12 January 1987 the plaintiff Renee Inzaurralde was, she claimed,injured in a motor vehicle accident. She brought proceedings against the defendant, the appropriate defendant in such proceedings, claiming damages for the injuries suffered by her. On 4 April 1991 her claim was tried before his Honour Judge Downs in the District Court. His Honour found a verdict for the defendant. He said: "T have a strong suspicion that this claim is fraudulent but as my impression does not go beyond suspicion I do not propose to refer the papers to the Director of Public Prosecutions". The plaintiff has appealed to this Court against his Honour's judgment. In the context of the appeal, the plaintiff has moved this Court for leave to adduce further evidence upon the hearing of the appeal: see Supreme Court Act s75A(7) and subs(8) and Pt51 R13A. The court has had the assistance of Mr McDermott for the plaintiff and Mr Mater for the defendant and it has heard argument both upon the motion and upon the appeal. It has reserved its decision in respect of both proceedings. In order to understand the basis of the motion and the contentions made in respect of the appeal it is necessary to refer to the facts, to what happened at the trial, and to the terms of his Honour's judgment. The plaintiff's claim was that on 12 January 1987 she was travelling as a passenger in the front seat of a vehicle driven by her husband. The vehicle was being driven on the Yerranderie Road, said to be approximately thirty miles from the town of Oberon. The vehicle was being driven towards the old mining town of Yerranderie. The plaintiff claimed that, as the vehicle followed a left hand turn in the road, it "turned, overturned", through an arc of about ninety degrees and came to a halt lying on its offside or driver's side. The plaintiff was "about to faint". There were two passengers in the back of the car, a Mr and Mrs Perdomo. Mr Perdomo, the plaintiff claimed, "jumped out of the door". He then assisted at the door of the vehicle where the plaintiff was and she jumped down from it. She said that as she came down from, as it was, the topside of the vehicle, her left lower leg came against the portion of the exhaust of the vehicle which ordinarily would be under the vehicle. This, she said, burned her leg. Her claim was that subsequently she developed an ulcer on the leg and also suffered from a back condition, each of which, she said, was due to the accident. It was in respect of these that she made a claim against the defendant. 2 UNREPORTED JUDGMENTS The plaintiff gave evidence at the trial and was cross examined. It had been proposed that Mr Perdomo be called to give evidence on her behalf. He did not appear. He had been served with a subpoena. It had, it was suggested, been anticipated that he would appear but against the possibility that he might not, an affidavit had been obtained from him on 27 March 1991. That affidavit annexed a statement made and signed by him. A copy of the affidavit has by consent been handed to the court. It annexes a statement by him as to the circumstances of the accident. The statement alleges that the vehicle "skidded and rolled on its right side" and it confirms that "as Mrs Inzaurralde was climbing down, I remember her screaming as her leg touched the exhaust pipe". The affidavit indicated that Mr and Mrs Perdomo were visitors in Australia and had been required by the Department of Immigration to depart from Australia "within fourteen days" of the date of the affidavit, 27 March 1991. Mr Perdomo stated in the affidavit that his flight from Sydney departed on 4 April 1991. That was the date of the trial of the plaintiff's claim. Mr Perdomo's affidavit was tendered as evidence at the trial. Objection was taken to it upon the basis that "there was no evidence before the court of a subpoena to make him available to the court". The tender was then "withdrawn". An affidavit of service of the subpoena upon Mr Perdomo was then tendered. Certain letters were then tendered and admitted into evidence. It appears that the affidavit of Mr Perdomo was again tendered: the transcript records that, following the tender of the letters referred to, that affidavit was "rejected by his Honour'. It is agreed between the parties that Mr Inzaurralde, the driver of the car, was present in court. He was not called by either party. He could no doubt, if called for the plaintiff, have given evidence for or against her case. He was effectively in the position of being the insured and was subject to such obligations as had been imposed upon him in that regard by legislation and by the terms of the Third Party Insurance Policy. Neither party offered evidence as to why he was not called. The learned judge rejected the plaintiff's claim. He did so upon two alternative bases: he was not satisfied that the incident occurred at all; and (if he had been satisfied that it had occurred) he "would not be satisfied that the plaintiff was injured thereby". The relevant portion of his Honour's judgment was as follows: "Mr Torrington put to me that I should find a verdict for the defendant because I would not be satisfied that the incident occurred as alleged and further, even if I was satisfied that it occurred, I would not be satisfied the plaintiff was injured thereby. I am far from satisfied that the incident occurred for a number of reasons: The photographs of the offside doors of the car did not bear any marks consistent with the vehicle having turned over on to its side and most significantly, the offside rear vision mirror was undamaged. There was not any evidence as to what caused the alleged overturning of the car. The incident was not reported to the police; the absence of witnesses who could have said that the car turned over, if that be the fact, was left unexplained and records, exhibits K1 and K2 from the plaintiff's employer for whom she has worked since 1981, disclosed among other things:- K1 '4 Mrs Inzaurralde was absent on recreation leave from 29 December 1986 to 2 February 1987. No other absences in relation to motor vehicle accident'. Exhibit K2 'Her absence from 23 February 1987 to 11 April 1987 was due to surgery for ulcer and a medical certificate has been supplied to this effect'. UWRZAURRALDE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Mahoney JA) It follows from the above that the plaintiff's case fails. However, I should add that I was far from satisfied that the plaintiff was a witness of credit because the manner of her fall was such that she could not have been burned on the outside of her left leg. Further there was not any mention of the plaintiff having sustained a burn to the leg in the records of Dr Krejci or Dr Yeo or the records of her employer. So far as her alleged back injury was concerned, there was not any mention of it in Dr Yeo's records and the reference to it in Dr Krejci's records appears for the first time in March 1989 without any reference to when it was alleged to have commenced. There will be a verdict for the defendant, I enter judgment accordingly and I order the plaintiff to pay the defendant's costs. I have a strong suspicion that this claim was fraudulent but as my impression does not go beyond suspicion I do not propose to refer the papers to the Director of Public Prosecutions." The plaintiff at the trial had said that, following the accident, "there was a lady on a jeep with her son and she assisted with lifting the car". The car was rolled back onto its wheels. The plaintiff said that she did not obtain the names or the registration number of the people or their car nor did she remember what colour the car was. The accident was not reported to the police. After judgment was given in the proceeding, the plaintiff and her husband spent some three days searching for the lady in question. They discovered that she was a Mrs Maisie Valerie Sormani who lived at Jerrong, Taralga. Affidavits tendered from Mrs Sormani and from her son Anthony Sormani support the plaintiff's contention that the vehicle rolled over and that they assisted in restoring it to its position on the road. Mrs Sormani deposed that "one of the persons who had been in the car was an elderly lady who said that she had hurt her leg getting out of the vehicle". It was in this context that the plaintiff's proceeding was dealt with by the learned judge and in which the present proceeding and application have come before this Court. 1 Application for leave to adduce further evidence: The plaintiff sought leave to adduce as further evidence the affidavits of Mrs and Mr Sormani. In addition, Mr McDermott sought to rely upon the affidavit of Mr Perdomo which had been rejected by the learned judge at the trial. The evidence was, of course, evidence of matters which had occurred before the trial: it related to what happened at the time of the accident and, in Mr Perdomo's case, the circumstances of his leaving Australia. An appeal to this Court is an appeal "by way of rehearing": s75A(5); and the court may receive further evidence: s75A(7). However, where the appeal is from a judgment after a trial or hearing on the merits, "the court shall not receive further evidence except on special grounds": s75A(8). Subs(8) does not apply to "evidence concerning matters occurring after the trial or hearing": s75A(9). The procedure for seeking leave to adduce further evidence is set forth in Pt51 R13A. Having regard to the terms of the judgment of the learned trial judge and the issues which have been raised, the evidence of Mrs and Mr Sormani and of Mr Perdomo would, in my opinion, be evidence of particular importance to the plaintiff's case. Mr Mater, for the defendant, has indicated that, while not admitting the significance of it, he does not contest that the evidence would be such as to establish the relevant degree of probability that, had it been before the learned judge, his conclusions and, no doubt, his verdict would have been different. 4 UNREPORTED JUDGMENTS The circumstances in which evidence of pretrial matters may be admitted have been considered in detail by the courts. The general principles applicable to such applications have recently been considered by the High Court in Commonwealth Bank of Australia v Quade (1991) 65 ALJR 674. The court, in a joint judgment, said that the practice has never been "completely stereotyped" but has "always possessed some flexibility" and has been "governed by the overriding purpose of reconciling the demands of justice with the policy in the public interest of bringing suits to a final end: at 676. Their Honours said that "generally the successful party should be deprived of the verdict in his favour only if the unsuccessful party persuades the appellate court that there was no lack of reasonable diligence on his part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict. Such a stringent rule in that ordinary class of case is supported by a consideration of both justice and public interest. Considerations of justice support it in that it would be unfair to the successful party if he were to be deprived of a verdict obtained after a trial on the merits and be subjected to the expense, inconvenience and uncertainty of a further trial merely because some relevant evidence had, without fault on his part, been unavailable to the unsuccessful party at the time of the trial. Considerations of public interest support it in that it is desirable in the public interest that there be finality in litigation in other than the truly exceptional case. If all that was necessary to procure the setting aside of a regularly obtained verdict was that the unsuccessful party show that fresh evidence which would have affected the outcome of the trial has become available after the trial, the verdicts of the courts would be of a provisional character only, being subject to the discovery of further relevant evidence.": at 676. The operation of s75A of the Supreme Court Act was considered by this Court in Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235. The court there considered the significance of "special grounds" as required by s75A(8) for the admission of such evidence. In substance, the only issue in contest in the present application is whether there was, to paraphrase what was said in Commonwealth Bank of Australia v Quade: at 676; a "lack of reasonable diligence" on the part of the plaintiff resulting in the evidence not being available at the trial. In the evidence of the plaintiff's solicitor, Mr Meagher, there is detailed the information available to him at or before the trial and the steps taken and not taken by him in order to procure the attendance at the trial of Mr Perdomo and of Mrs and Mr Sormani. I shall refer subsequently to the circumstances affecting the evidence of Mr Perdomo: I shall for present purposes confine what I say to the evidence of Mrs and Mr Sormani. Mr Meagher, in his affidavit, indicated that he had been instructed by the plaintiff, that there had at the accident been a lady and two teenage sons and they had driven up in "a yellow jeep or four wheel drive vehicle". There was, his evidence suggests, no other evidence as to their identity or whereabouts. Mr Meagher considered that Mr and Mrs Perdomo would be available to corroborate the circumstances of the accident. He telephoned the Oberon police station and could obtain there no information as to the identity or whereabouts of the lady in question. The suggestion by the police officer concerned was that "in January there were always many tourists and that the jeep probably belonged to a tourist". He stated that he did not know anyone in the area who owned a yellow jeep. Mr Meagher said: UWRZAURRALDE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Mahoney JA) "7 At that stage, having made those inquiries and believing that there were two independent witnesses available in any event to corroborate the circumstances alleged by the appellant regarding the incident on 12 January 1987 I decided not to incur the expense of retaining an investigator to conduct a 'house to house' search in the Oberon area in an effort to establish the identity of the lady driver of the yellow jeep." In this regard, he placed reliance on the fact that "the defendant's grounds of defence did not allege or intimate that the defendant was alleging or likely to allege that the plaintiffs claim herein was fraudulent". It is apparent from Mr Meagher's evidence that the plaintiff and her husband, after three days search in the area, were able to ascertain the identity and whereabouts of Mrs Sormani and of her son and to confirm that they could give evidence of what occurred at the time. The fact is accordingly that by such efforts the evidence could have been obtained for the purposes of the trial: at least, that is the inference which in my opinion would be drawn. Therefore, if the requirement "reasonable diligence" relates essentially to the steps which, objectively considered, would be sufficient to obtain the relevant evidence for the trial, I would be inclined to the view that in this case, the plaintiff has not established that, had reasonable steps been taken prior to the trial, the evidence could not have been obtained. But the submissions of the plaintiff suggest that the test is not so limited. The submission is to the effect that, for the purpose of determining "reasonable steps", it is relevant or only relevant to consider what would then have been considered to be appropriate or necessary for the purpose. Thus, Mr McDermott submitted that the decision of the English Court of Appeal in Crook v Derbyshire (1961) 3 All ER 786 indicated that if evidence which could be obtained by reasonable efforts "seemed unnecessary at the time", then, it having appeared to have been necessary, that may be taken into account in determining whether, on appeal, leave should be given to adduce it. In Commonwealth Bank of Australia v Quade: at 676; the matter is, as counsel submitted, stated in more general terms. He submitted that the reasonableness of the efforts to be taken is not to be judged by reference only to what steps should be taken: the unsuccessful party must persuade the appellate court that "there was no lack of reasonable diligence on his part". That suggests, the submission was, that the matter is to be considered in more general terms. I do not think that the solicitor, in the circumstances obtaining at the time and in accordance with his instructions, acted other than reasonably. There was, as Mr Meagher's evidence suggests, no reason to suggest that the defendant would contend that the accident had not happened and that the plaintiff's claim was accordingly fraudulent in nature. I am conscious that, in the statement of defence, there were denials in terms of the allegations in the plaintiff's claim that the vehicle had overturned. But I do not deduce from this, nor should the solicitor have deduced it, that it was the defendant's intention to set up a defence amounting in effect to fraud. I am conscious also that, prior to the trial, Mr Meagher became aware of the intention to deport Mr and Mrs Perdomo or at least to require them to go overseas. But he had subpoenaed Mr Perdomo and it was suggested by counsel that, notwithstanding that he was to depart on the day of the trial, there was reason to believe that he would answer the subpoena and attend: the evidence does not suggest to the contrary. 6 UNREPORTED JUDGMENTS Tf the test be the overall reasonableness of the efforts taken by the plaintiff prior to the trial, I would support the plaintiffs application to adduce further evidence. However, counsel have not referred the court to any case in which there has been specific consideration of whether the requirement for the admission of fresh evidence is that, before the trial, the evidence would not have been obtained if reasonable steps had been taken to obtain it rather than that reasonable steps should have been taken to obtain the evidence. Having regard to the clear nature of the evidence to be provided by Mrs and Mr Sormani and to the effect that would have upon the trial, I think that the interests of justice would weigh heavily in favour of the admission of the evidence and, if the circumstances of the case would allow, I would be prepared to admit the evidence. It was not suggested that Mrs or Mr Sormani should be subjected to cross examination for this purpose and their evidence would, on this point, be conclusive in the plaintiffs favour on this issue. However, the matter was argued by the parties upon the alternative basis that the evidence was not admitted. The plaintiff submitted that, without the further evidence, there was still error in what the judge did. I shall therefore proceed to consider the matter upon that alternative basis. 2 Was the judgment affected by error? The plaintiff's submissions were to the effect that: the judge was not satisfied that the accident occurred at all; some at least of the reasons he gave for not being satisfied were wrong; and accordingly his judgment should be set aside. The proper inference to be drawn from the judgment is that the judge was not satisfied that the accident occurred at all. In his judgment, at one point, he said, "... [would not be satisfied that the incident occurred as alleged..."; immediately afterwards he said, "I am far from satisfied that the incident occurred for a number of reasons:...". His conclusion related, in my opinion, not merely to whether the accident occurred "as alleged", ie, in the precise manner the plaintiff suggested, but to the occurrence of the accident at all. The subsequent passages in the judgment make that clear. I am conscious that there is, in some respects, a difference between a conclusion that something did happen and the grounds of error which may be urged against that conclusion, and a conclusion that the person who has the onus of proof has not satisfied the judge of the relevant matter. In some cases, that difference has been seen as determinative. But, in my opinion, that distinction is not crucial in the present case. If the reasons why the judge was "not satisfied" in the present case were wrong, this Court can and should, on a rehearing, conclude that there was an error and that the matter must be reconsidered. The judge detailed the reasons, or some at least of the reasons, why he was "far from satisfied" that the accident occurred. Mr McDermott, for the plaintiff, submitted that in a number of respects the reasons advanced were wrong. There is one matter which, in my opinion, is of particular significance. If the accident did not happen, then, to adapt the language used by the judge, the plaintiff's claim was "fraudulent". She had claimed damages and had given evidence upon a basis which, it is to be inferred, was false to her knowledge. The issue raised was therefore one of particular seriousness. The defendant's contention was not that there were discrepancies in evidence such as to cast doubt upon the accuracy of portions of the plaintiff's case: it was that the accident did not happen at all. If a party is to base a case upon such a contention, it is, in my opinion, necessary that the contention and the fact that it is the basis of the case be made clear beyond argument: see generally Browne v Dunn (1893) 6 R 67 at 76-7; UWRZAURRALDE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Mahoney JA) Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 370-1. Common fairness and the proper administration of justice requires that this be done. It was, of course, not necessary for the defendant in this case to set up, by way of pleading, an allegation of fraud. Its defence sufficiently denied that the overturning of the vehicle took place. But, as long experience suggests, the fact that a defendant denies or does not admit the various allegations in the plaintiff's statement of claim does not mean that each of them will become an issue at the trial and in particular does not suggest that issues will be raised which, in a practical sense, will involve an allegation of fraud. In the present case, the judge saw the defendant as setting up in fact that the claim was that the accident did not happen and that accordingly the plaintiff's case involved a fraudulent claim by her. He was, in my opinion, correct in concluding that if the contention was the accident did not happen, it followed that the plaintiff was in the relevant sense fraudulent. I do not mean by this to criticise those who for the defendant had the conduct of the present case. But Mr Mater, who was not counsel at the trial for the defendant but appeared for it before this Court, conceded that he could find nothing to support the suggestion that the defendant had suggested fraud. He doubted that the word was used in address. But it was used by his Honour and, as I have said, his Honour was correct in inferring that, if the contention was that the accident did not happen at all, then that contention involved that, in the relevant sense, the plaintiff was fraudulent. In my opinion that contention was not appropriately brought home to the plaintiff and she was not afforded the proper opportunity to deal with it. The plaintiff was a person who had difficulty with the English language to the extent that she gave evidence in Spanish and her evidence was interpreted. She affirmed several times that the vehicle had turned onto the driver's side. There were in evidence snapshots taken of the vehicle following the accident. It was put to the plaintiff that there was no damage to the driver's door or to the "rear driver's side door". It was put that there was no damage to the "rear vision mirror" on the driver's side. Later, it was put and the plaintiff agreed that the accident was not reported to the police. The following question was then asked: "Q Could that have been because the car had not rolled on to its side? A It did turn on its side, yes". I am conscious that, in considering what fairness requires in this regard, it is not always necessary that the cross examiner's contention be put to the witness in terms. The exigencies of cross examination may require that the matter be advanced more obliquely and in some cases the rules of fairness will be observed notwithstanding that a direct statement of the cross examiner's contention is not made. Tam conscious also that the effect of what in fact has been put to a witness may best be able to be judged by those present at the trial. In the present case, the significance of the questions, including those to which I have referred, could be judged better by the learned judge than by this Court. But giving full effect to these factors I am left with the conclusion that the contention that the plaintiff should fail because the accident did not happen at all was not appropriately put to the plaintiff and that justice required that it be so. For a claim to be dismissed upon the basis of fraud in this sense when, as in this case, it has not been put to the plaintiff and her explanation invited involves in my opinion an injustice to the plaintiff such that the trial miscarried. 8 UNREPORTED JUDGMENTS I emphasise that in so concluding, I make no individual criticism of those involved at the trial for the defendant. Mr McDermott, who was counsel for the plaintiff at the trial, has referred the court to the passages in the evidence to which Ihave alluded and he was, no doubt, conscious of implications to be derived from them. But, as I have said, if a case is to be dealt with upon the contention of such a fraud, what occurred was not sufficient. The judge relied for his conclusion of fraud upon, inter alia, the absence of marks and damage on the offside of the vehicle. He inferred that, absent the marks and damage, the vehicle could not have been or probably was not on its side. As Mr McDermott submitted, that does not necessarily follow. The vehicle was on the grass verge and whether marks or damage were to be expected would be affected by a number of factors. That factor alone would not have been sufficient to warrant a conclusion involving fraud of the kind here in question. However, his Honour did not rely upon that matter alone and it is therefore relevant to refer to the other matters indicated by him. His Honour referred to the fact that the incident was not reported to the police. That was clear and uncontested. The plaintiff was not asked why it was not reported. His Honour said that "the absence of witnesses who could have said that the car turned over, if that be the fact, was left unexplained...". That, with respect, was not accurate. The absence of Mr and Mrs Perdomo was sought to be explained. The fact that the driver of the car, the plaintiffs husband, was not called for the plaintiff required, perhaps, less explanation. And the absence of Mrs and Mr Sormani was explained in evidence by the plaintiff's indication that she did not know who or where they were. His Honour relied upon the state of the records of the plaintiff's employer. These did not indicate that the plaintiff had explained her absence from work as due to a motor vehicle accident and, the inference was, accordingly the accident did not happen. But no claim was made against the employer by virtue of the accident and it was not necessary for her to inform the employer that her absence was due to a motor vehicle accident. The records did however disclose that her absence, at a relevant time, was due to treatment for an ulcer and it was the ulcer which, as she claimed, resulted from the motor vehicle accident. His Honour also saw assistance in the fact that "... there was not any mention of the plaintiff having sustained a burn to the leg in the records of Dr Krejci or Dr Yeo or the records of her employer". Whatever be the literal accuracy of that statement, it conveys a less than complete picture of what is shown by the relevant medical records and, having regard to the complete picture, it would justify the conclusion the judge formed. There was in evidence the discharge summary of the Prince Henry Hospital relating to the plaintiff. That was dated 10 April 1987. It showed record of an ulcer operation to the left lower leg and recorded that she had "... sustained a traumatic ulcer on the left lower limb in a motor vehicle accident on 12/1/87". It showed also that the relevant medical officer was Dr B Yeo, one of the doctors referred to by the judge. It is clear, I think, that both Dr Krejci and Dr Yeo were aware that the ulcer involved was the result of a burning incident which occurred in a motor vehicle accident. In these circumstances, I am of opinion that the conclusion arrived at by the judge was not warranted by the evidence. UIRZAURRALDE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Cripps JA) It follows that the judgment should be set aside. It would be advantageous if, in a case such as this, this Court could dispose of the dispute between the parties by assessing the evidence and awarding such damages as would be appropriate. However, the learned judge formed an adverse view of the plaintiffs credibility as a witness. Although, as I think, he was influenced to that conclusion by considerations which, on examination, do not support it, I do not think that this Court can substitute its own view of the plaintiff: at least, I think it should not do so. The court has invited submissions from the parties as to the course to be followed. The defendant has, as it is entitled to do, indicated that it would prefer the matter to be retried. In my opinion, therefore, the judgment should be set aside and there should be a retrial of the proceeding on all issues. The costs of the first trial should abide the event of the second trial. The costs of the appeal should be paid by the respondent. Priestley JA I agree generally with Mahoney JA. In particular, I agree with him that the conclusion arrived at by the trial judge was not warranted by the evidence. In my opinion, in the circumstances of this case as explained by Mahoney JA, there must be a new trial. I agree with the proposed orders. Cripps JA There were two substantial issues argued in the appeal. The first waswhether the trial judge erred in the judgment he gave entering a verdict for the defendant. The second was whether, if he did not, the Court should give the plaintiff leave to adduce further evidence. DID THE TRIAL JUDGE ERR? Mahoney JA has set out the relevant parts of the judgment of the trial judge. It is clear that the learned trial judge misunderstood the evidence and, as a consequence, made findings adverse to the plaintiff. It was not correct to say that the plaintiff had not mentioned she had burnt her leg as a result of the car accident. There was unchallenged evidence that she had told at least two doctors about it. Furthermore, although the learned trial judge concluded that the accident had never happened at all, that was never put to the plaintiff in terms. This, perhaps, was not surprising because we were informed that, although the GIO required the plaintiff to prove her case at trial, it was never part of its case that the plaintiff's claim was fraudulent. It is true that the learned trial judge said he was not satisfied that the car rolled over. However, it is clear he was saying that the plaintiff was lying. That was never put to the plaintiff. For these reasons, there should be a new trial (Browne v Dunn (1893) 6 R 67 and Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 370-1). There were two back seat passengers, Mr and Mrs Perdomo. Mr Perdomo had sworn an affidavit supporting the plaintiff's version of events. He was not called at the trial for reasons set out in the judgment of Mahoney JA. The learned trial judge gave no reasons why he rejected the tender of Mr Perdomo's affidavit. It may be by that stage he had already drawn conclusions adverse to the plaintiff. It is difficult to see why Mr Perdomo's affidavit was not received into evidence. He had personal knowledge of the accident. He was not relevantly "a person interested" and all reasonable efforts had been made for his attendance at the trial. In my opinion, it is not stretching the language of s14B of the Evidence Act 1898 to hold that Mr Perdomo was relevantly a person who could not be found after all reasonable efforts had been made. 10 UNREPORTED JUDGMENTS SHOULD THE PLAINTIFF HAVE LEAVE TO ADDUCE FURTHER EVIDENCE? Although it is unnecessary to decide this application in view of the proposed orders, I agree with Mahoney JA that the interests of justice weigh heavily in favour of the admission of the evidence. However, the application is not without its difficulties. The attempt to locate Mr and Mrs Sormani consisted of a single telephone call to the Oberon Police Station by the plaintiff's solicitor. On the face of it, a request of the police as to who, in the general area of Oberon, might have owned a yellow jeep is not "reasonable diligence" (Commonwealth Bank of Australia v Quade (1991) 65 ALJR 674). In the present case, however, it must be borne in mind that the evidence of the witnesses is now important because of the decision of the learned trial judge that the plaintiff was telling lies when she said that the car rolled over. The unchallenged sworn testimony of Mr and Mrs Sormani is that they saw the car on its side and assisted in putting it back on the road. As I have earlier mentioned, the GIO did not allege fraud in terms. The misgiving I had during the hearing of the application was based upon the circumstance that the plaintiff's solicitors were aware that Mr and Mrs Perdomo might not be able to give evidence because they had been ordered to leave Australia. It was apparent on the day of the trial that they would not be in attendance and, of course, the plaintiff's legal representative knew that Downs DCJ had declined to accept Mr Perdomo's statement into evidence. The plaintiff's counsel, apparently, took the stand that rather than ask for an adjournment without clarifying whether the GIO was, in truth, alleging what it had been hinting at, he would proceed. It is established that the public interest requires that there be finality in litigation in all but the truly exceptional case (see Quade). Bearing in mind the way the proceedings were conducted before the learned trial judge and having regard to the circumstance that the new evidence would almost certainly have produced an opposite result, I have come to the conclusion that this is an exceptional case. However, as there is to be a new trial, it is not necessary to formally determine the application. I agree with the orders proposed by Mahoney JA. Appeal allowed; judgment set aside. New trial on all issues. Costs of first trial to abide second trial. Costs of appeal to be paid by respondent. RYN Counsel for the Appellant: MF McDERMOTT Instructed by: CD MEAGHER Counsel for the Respondent: HJ MATER Instructed by: GM MEADOWS, SOLICITOR FOR GIO