HORN v YOUNG SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and POWELL JJA 20 April 1995, 20 April 1995 [1995] NSWCA 199 APPEAL — APPLICATION FOR ADMISSION OF FRESH EVIDENCE Clarke JA The appellant was injured in a trail bike accident on Sunday, 21 August 1977. He was at that time a policeman, and was riding with a group of other policemen and one civilian, who is the respondent. He claimed that his injuries were caused by the respondent's negligent riding. In particular, he said that the respondent accelerated his motorcycle past the appellant's motorcycle in such a manner as to lead to an impact between the two cycles, following which stones were flung up by the respondent's cycle towards the appellant. As a consequence of this incident he lost control of his motorcycle and sustained a significant injury to the right knee. His action for damages was heard in September 1990. On 26 September, that is after the hearing had concluded, the appellant applied on notice for leave to reopen his case. That application was refused, and its refusal is not called into question in this appeal. The evidence then sought to be adduced by the appellant was quite different to the evidence to which I will refer in a moment. On 2 October 1990 the trial judge delivered his reasons for judgment and directed the entry of judgment for the respondent. On 30 October 1990 the appellant filed a notice of appeal in which he boldly asserted that the trial judge erred in preferring the evidence adduced by the respondent, and added that his Honour's decision was not based upon the evidence. It should be mentioned that these are not proper grounds of appeal, insofar as they fail to identify with required specificity the errors which it is asserted the trial judge made. However, it is unnecessary to take time with the form of the notice of appeal, because the case has been argued upon the basis that the outcome of the appeal depends essentially upon whether the appellant is granted leave to adduce fresh evidence. If that leave is refused it is accepted that the appeal must fail. If, on the other hand, the application is successful, then discretionary questions may arise. The trial judge delivered a comprehensive and carefully reasoned judgment leading to his ultimate conclusion. The case was in every respect a factual one. On one side stood the evidence of the appellant with limited support, and on the other side the evidence of the respondent which was corroborated in major respects by a deal of other evidence. His Honour preferred the evidence of the respondent and his witnesses. Accordingly, he rejected the appellant's evidence, and that rejection led to his ultimate conclusion. In his consideration of the evidentiary question his Honour referred to a number of reasons why he preferred the respondent's evidence. One of those reasons was the demeanour of the appellant. However, he did not base his 2 UNREPORTED JUDGMENTS decision solely on that ground. He detailed a number of other aspects of the evidence which strongly supported the respondent's version, and led him to his ultimate conclusion. Mr Rowe, who appeared for the appellant in the appeal, fastened on one of the aspects of the evidence which his Honour accepted, and contended that the fresh evidence went to show that the evidence accepted by his Honour was simply wrong. During the appellant's evidence the appellant said following the accident he pushed his bike some 25 feet to a tree and then stood it next to that tree. His Honour rejected that evidence for reasons then given, including that the bike was in such a damaged condition and, in particular, the front wheel was so damaged that it would have been very difficult to do what the appellant said he had done. In the course of his discussion his Honour accepted that the bike was damaged as deposed to by a Mr Blackett and a Mr Power. Those witnesses and another witness, Mr Barrett, said that the front wheel of the bike was damaged and bent - this is not called into question - they also said that the front forks of the motorcycle had been damaged. I do not think it can be doubted that his Honour accepted that. There was material in the form of an invoice for the repair of the motorcycle which, although somewhat equivocal, might have been thought by his Honour to support that conclusion. It is this particular evidence, that is, that the front forks were damaged, which the appellant now seeks to attack. Mr Rowe contends that the evidence, to which I will refer in a moment, demonstrates convincingly that there was no damage to the forks, and if that material had been before his Honour it is by no means clear that he would have come to the same verdict. The first affidavit is that of a Mr Roberts, sworn 5 April 1995. He is the owner of the motorcycle, and had owned it for 20 years. He deposed, in broad terms, to lending the motorcycle to the appellant, to seeing a piece of wood wedged in a hole in the front axle of the motorcycle, and of seeing a dent in the tank. He also said that the only changes to the motorcycle since 1971 were the replacement of the rear shock absorber. In short, his evidence was put forward to demonstrate that when he saw the motorcycle, it did not have damaged forks and that he had done nothing to change that position between the time it was returned to him and 1995. The second affidavit was that of Robert Coop, a qualified mechanic. He inspected the motorcycle about January 1991, and formed the opinion that the front forks were original and had not been damaged. He expressed the opinion there was no evidence of a head-on collision. The third affidavit was that of an expert, Professor Hilton, to whom a number of alternative propositions were put. He preferred the second proposition; that is, that the right foot was entrapped, possibly in some part of a motorcycle apparatus and that the knee joint bore the brunt of a sudden deforming motion. For reasons which are largely speculative, he rejected the first proposition, which was that there had been a more or less head-on impact. He also rejected, again for speculative reasons, a third possibility that there was some entrapment as well as a head-on impact. The fourth affidavit was that of the appellant's wife, who deposed to some discussions by witnesses outside the courtroom when the trial was taking place. Mr Rowe seeks to rely on this evidence to support the inference that the witnesses were putting their heads together to give the same evidence and, he says that URJ HORN v YOUNG (Clarke JA) 3 when it is seen that that evidence is plainly wrong so much doubt is cast upon the material accepted by his Honour that the judgment cannot be allowed to stand. I should pause before turning to the question of the admissibility of this material, to point out that there is nothing in the judgment under appeal which suggests that his Honour thought that the question was whether there had been a head-on collision or a tilting of the bike without any frontal impact was important. As I read His Honour's judgment, he went no further than saying that the damage to the tree and the front bike suggested a probable collision between the two, but didn't embark on a discussion as to whether that happened before or after the appellant had lost control of the bike; nor did he discuss whether the bike had been tipped on its side leading to the entrapment of the appellant's right leg. The principles upon which the court acts in admitting fresh evidence on an appeal are set out in s75A and, in particular, in this instance, subs8. Such evidence cannot be admitted by the court, except in the presence of special grounds. A number of authorities over many years have laid down basic tests for determining whether special grounds exist. The first of these is that it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial. There is no evidence from any legal representative of the appellant concerned in the trial to explain why the evidence now sought to be led wasn't available at that time. Nonetheless, Mr Rowe has asked that the court infer that that is the position. The underlying basis for the submission is that the significance and importance of the damage to the motorcycle only emerged during the course of the trial and the appellant was in no position to lead evidence to rebut the material advanced by Messrs Barrett, Blackett and Power. I am quite unable to draw that inference. Indeed, I would go further and say that the inference positively should not be drawn. If counsel conducting the trial had considered that this evidence was of a critical nature, he had a ready course open to him. He could have sought leave to call evidence in rebuttal and he could have sought an adjournment in order to enable him to gather that evidence to meet this suggested unexpected development. Even if he had not done that, during the course of the case he could;after judgment had been reserved, have sought leave to reopen to put additional material before the court. As I've earlier pointed out, he did this about eight days after judgment had been reserved, but he sought then to lead quite different material. At no time prior to the delivery of judgment was there any attempt by counsel to seek an indulgence to call evidence to meet the so-called unexpected development. In my opinion, it is impossible to hold in the appellant's favour that the first condition has been satisfied. There was more than enough opportunity to deal with the material and it is not now open to this court to say that the evidence could not have been obtained for use at the trial if reasonable diligence had been used. That finding necessarily leads to a rejection of the material, but I will deal very shortly with the other two conditions. The second condition is that the evidence must be such that there must be a high degree of probability that there would be a different verdict. It is sufficient for me to say that, in the light of His Honour's extensive reasons and the very limited nature of the material now sought to be led, I am not satisfied that it is even probable that there would have been a different verdict. 4 UNREPORTED JUDGMENTS The third condition is that the evidence must be appropriately credible. I have not seen any reason why it shouldn't be treated prima facie at least as credible, but in the circumstances that the first two conditions have not been met, the evidence is not admissible. The consequence of the rejection of the evidence is that the appeal should be dismissed with costs. Meagher JA I agree with the learned judge. Powell JA I also agree with what Mr Justice Clarke has said, but I would merely add that the evidence of Constable Blackett and Constable Barrett was given on the second day of the trial and, that notwithstanding, no attempt was made at the conclusion of the respondent's case at the trial either to seek an adjournment or to lead evidence from the appellant in relation to the matters which it is now suggested were of significance. Bearing in mind the identity of counsel who appeared for the appellant at the trial, who one is entitled to know is counsel of very considerable standing and experience in this type of case, one cannot help observing that counsel did not think the matter was of any great significance. I agree with the orders that are proposed by Mr Justice Clarke. Clarke JA: The order will be as I have indicated. Appeal dismissed with costs. Counsel for the appellant: JE ROWE Solicitors for the appellant: RICHARD E AND RHYS G WILLIAMS Counsel for the respondent: C PETTY Solicitors for the respondent: GM MEADOWS