RIFEKAH HEJAZI v GOVERNMENT INSURANCE OFFICE OF NSW; MOHAMMED HEJAZI v GOVERNMENT INSURANCE OFFICE OF NSW [1994] NSWCA 127

RIFEKAH HEJAZI vy GOVERNMENT INSURANCE OFFICE OF NSW; MOHAMMED HEJAZI vy GOVERNMENT INSURANCE OFFICE OF NSW

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and SHELLER JJA 7 and 8 July 1994, 5 August 1994 [1994] NSWCA 127

RETRIAL ON ISSUE OF DAMAGES — CREDIBILITY — DEMEANOUR — MISCARRIAGE OF JUSTICE — BIAS — JUDICIAL INTERVENTION EXCESSIVE

The two appellants had been in a car driven by the first appellant, RH, when it was involved in an accident with another vehicle which failed to stop at a stop sign. The defendant did not call the driver of the other vehicle, but in cross-examination of the second appellant, MH, challenged his presence in the vehicle being driven by RH, his mother, at the time of the accident. The trial judge found that MH was a passenger but said that "in a multitude of respects" MH and RH were evasive and unreliable witnesses. He then said that both plaintiffs succeeded on liability "only by the slightest tipping down of the scales in their favour". He awarded MH $1,043 and RH $1,068.

The judge gave six particular reasons for regarding MH's evidence as unsatisfactory, in addition to his views on his credibility generally. The judge intervened extensively during RH's evidence, cross-examined her at length, and recalled her on his own motion for further cross-examination by himself. He evinced suspicion about her evidence from an early stage, and this was apparent during his interventions. The appellants appealed alleging that they had not had a fair trial.

Held:

(1)The judges credibility findings adverse to MH were flawed because none of his six stated reasons for regarding MH's evidence as unsatisfactory could be supported. It was therefore necessary to order a new trial limited to damages.

(2) RH had not had the appearance or the substance of a fair trial and it was also necessary in her case to order a new trial limited to damages.