KESKI vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY, SHELLER and COLE JJA 17 November 1994 [1994] NSWCA 163 Cole JA Acting Judge James heard this matter and another (Santo La Rosa v Government Insurance Office of New South Wales (GIO)) together on the 30th and 31st of August and 1st September 1989. Mr Keski had alleged that a vehicle being driven by Mr La Rosa collided with the rear of his vehicle pushing him sideways into a pole on his left hand kerb side. Mr La Rosa had contended that Mr Keski had changed lanes causing him to break and swerve to avoid a collision, causing him to collide with a third vehicle. After lunch on the third day, the trial Judge heard submissions from counsel upon the credit of Mr Keski and Mr La Rosa. His Honour then remarked: "It is conceded by Counsel for Keski there appears to be no objective corroboration in a material particular, except the prior consistent account, in so far as it is a consistent account given in the police report, the reference to the damage code and the damage code referable to the rear of the vehicle by an independent trained observer. Beyond that, Mr Smith (Counsel) concedes no independent corroboration of Mr Keski and also submits there is no independent corroboration of Mr La Rosa".! The transcript then notes: "For his Honour's judgment in the case of plaintiff Keski, see separate transcript".2 His Honour's judgment is in the following terms: I cannot accept the credit of Mr Keski. The reasons are the inconsistent accounts, the manner in which Mr Keski gave his evidence, inconsistencies in cross-examination, a substantial element of reconstruction, and that Mr Keski was totally not conversant in English, although he apparently understood a considerable amount of what was going on in that language. Further, there is no such sufficient explanation by way of the damage to the vehicle or both vehicles, which would assist me to overcome those problems by means of corroboration. I have looked hard and thought hard to try and see some basis on which Mr Keski's accounts could derive some external support sufficient to enable me, at least, to have such faith in his account as to find that Mr La Rosa might be partially responsible for what occurred. I am unable to go so far. The matters that Mr Smith, on his behalf, has put to me and the matters adverted to by Mr Charteris, that the vehicle came up from behind, there was an impact, at least one impact, as they put it, are but the bare fundamental or necessary portions of the narrative, but the only way that one can test such a narrative is by examination of the whole of the material, including the inferences. 1. Appeal Book, p.69. 2. Appeal Book, p.69. 2 UNREPORTED JUDGMENTS In those circumstances, I am simply unable to accept Mr Keski's accounts which involved an impact at the rear or towards the rear of his vehicle such as to be able to say that Mr Keski was not the cause of the accident. I have sketched out these reasons in very short form for the benefit of the parties not only to this action but also to the other action that is being tried. These, however, are not to be taken as full reasons. I will give full reasons in due course should the parties seek that I do so. I have not examined the issue of quantum independently because, firstly, the parties sought that I deal with this matter in this way and, secondly, because it seemed to me, after having heard full submissions, that the question of quantum could not arise such as to advantage Mr Keski."3 His Honour then, apparently, heard submissions regarding costs and ordered that the "plaintiff Keski pay the defendant's costs".4 He then apparently dealt with the La Rosa quantum claim and the transcript then records: "I could not accept Mr Keski's account". His Honour is then recorded as saying: "On contributory negligence, at the moment, bearing in mind the general thrust of Mr La Rosa's evidence and without hearing from Mr nomas on that topic, really, at all beyond what is already said, I am against you. I should indicate that in the case of Keski I enter a verdict and judgment for the defendant. I order the plaintiff to pay the defendant's costs on the appropriate scale. I order that the exhibits may be handed out if the parties should wish. I will furnish full reasons in due course if the parties should require them. I should indicate that although I will not be sitting in this jurisdiction, I will obtain (sic retain) my Commission for such exigencies such as this. You may both be excused."> The La Rosa matter was then announced as settled. It is apparent from the statements of the trial Judge in his judgment, and the brief reasons given, that his Honour did not regard the reasons given as his full reasons indicating that he would "furnish full reasons in due course if the parties should require them". Mr Keski has appealed on the merits, but has also contended that his Honour erred in entering a verdict for the respondent before giving reasons. The "reasons" of Judge James were given a month before the decision in this Court in Palmer and Ors v Clark and Ors®. That decision clearly enunciated the obligation of District Court Judges to give proper reasons for their decision at the time a verdict is entered. It is unnecessary to recite the statements of principle there enunciated. It is clear from the decision in Palmer that the obligation upon a District Court is to both give adequate reasons, and to give them at the time of judgment. It is equally clear that the brief reasons given did not purport to be full reasons and in my opinion they were clearly inadequate. So much was implicitly recognised by Judge James by his indication that he would give "full reasons" if required. ORDER In my view, absent adequate reasons at the time of judgment, the appeal must be upheld, the judgment set aside and a new trial ordered. The respondent should pay the appellant's costs but should have a certificate under the Suitor's Fund Act, if qualified. 3. Appeal Book, pp 101-102. 4. Appeal Book, p 70. 5. Appeal Book, p 70. 6. (1989) 19 NSWLR 158. WHESKI v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Sheller JAB Handley JA I agree. Sheller JA I also agree. 5 Handley JA: The orders of the Court therefore will be as proposed by Cole JA. COUNSEL: Appellant: A Jamieson 10 Respondent: G Laughton SOLICITORS: Appellant: Ian Genge 15 Respondent: Neville and Edwards