Temiha v Sadebarth SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL POWELL, BEAZLEY and STEIN JJA 13 May 1997, 13 May 1997 [1997] NSWCA 308 Evidence — Weight and sufficiency of evidence — Witness said not to have been cross-examined on particular issue — Witness said not to have been contradicted on issue — Whether trial judge bound to accept evidence of witness on issue. Powell JA When this appeal was called on for hearing shortly before the luncheon adjournment, Mr H G Shore, who appears for the Respondent, sought to raise a preliminary question to be determined by the Court, that question being whether, having regard to the grounds taken in the Notice of Appeal, it was open to the Appellant to raise an argument that the learned trial judge, Studdert J, erred in finding, contrary to what was said to be the uncontradicted evidence of the Appellant, and the evidence of the Appellant which, so it was said, was not cross-examined upon, that it was improbable that the Appellant would - as he had stated was his intention - have returned to New South Wales if certain events were to occur. The relevance of the argument sought to be raised was that it was said that, having made that finding, his Honour, in reliance upon it, had proceeded to award an amount for economic loss which was less than it would have been had the Appellant's evidence been accepted. Mr D J Higgs SC, who appears with Mr M. Fordham for the Appellant, submitted that ground 2 in the Notice of Appeal, which was in the following terms: "The trial judge erred in finding that the plaintiff would not have returned to work in New South Wales had the accident not occurred. " was sufficient to enable the Appellant to raise the argument which had been foreshadowed. The view which, after considering the matter, the Court took was that that ground as framed would not support the argument which had been foreshadowed. An indication of that view having been given, Mr Higgs then sought leave to amend the Appellant's Notice of Appeal by adding a ground which - as I have noted it - was in the following words, or to the following effect: "Tt was not open to the trial judge to make the finding which he did in light of the failure of the Defendant to cross-examine the Plaintiff upon his intentions and in the light of the failure of the Defendant to tender evidence to contradict it. " Although the Court has not been taken, in detail, through the transcript, it appears to be the case that although, at the trial, Mr Shore did not, in specific terms, cross-examine the Appellant as to his stated intention, he did cross-examine the Appellant with a view, as I understand it, to establishing facts which would support the submission, which was later made to Studdert J, that the probabilities were that, even had the accident, in respect of which the Appellant sought to recover damages, not occurred, the Appellant would not have returned to New South Wales in the event of him being unable to find a position with a commensurate salary attached to it. 2 UNREPORTED JUDGMENTS It seems to me that, put in the bold fashion which I have noted above, the argument which the Appellant seeks leave to raise is not sustainable. Although some of the older cases (see, for example, Davis v Hardy!; Richards v Jager2; Swinburne v David Syme & Co3) seem to proceed upon the basis that, as a general rule, where a witness is unimpeached in his general character and his evidence is probable and uncontradicted by evidence on the other side that evidence should be accepted, more recent authority makes it clear that there is no rule of law that a court or judge must accept evidence because it is all the one way (see, for example, McPhee v S Bennett Ltd4) and that while the absence of cross-examination enables a tribunal of fact to regard the relevant evidence with a greater degree of assurance than might otherwise have been the case, it does not require the acceptance of that evidence (see, for example Douglas v Tiernan5; Taylor v Ellis6; Cole v Commonwealth of Australia7; Bulstrode v Trimble®; Poricanin v Australian Consolidated Industries Ltd?; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation!9; Paric v John Holland Constructions Pty Ltd!!), although where such evidence is rejected the reasons for its being rejected should be stated, in default of which it might be held that there had been a mistral (see, for example, Holman v Holman!2; Torrealba v District Court of New South Wales!3). Although so doing appeared to involve a departure from the argument which the appellant had sought leave to raise, Mr Higgs next submitted that the reasons which Studdert J gave for the conclusion to which, on the relevant question, he came were inadequate to support that conclusion, and, in the course of so doing, directed our attention to what were said to be the relevant passages in the evidence and in his Honour's Judgment. As to this submission I content myself with saying that it appears to me that the material to which our attention was directed would indicate that the conclusion to which his Honour came was, and the reasons which he gave for coming to that conclusion were, open to him. Accordingly, unless this argument be regarded as one which is already open to the Appellant on the Notice of Appeal, I would not be disposed to grant the Appellant leave to raise it. Although this, too, appeared to involve a departure from the argument which the Appellant had sought to raise, Mr Higgs finally submitted that, in the event, the Appellant had been denied procedural fairness since, by reason of the alleged failure on the part of the Respondent to cross-examine him (the Appellant) as to, or to tender direct evidence to contradict, his (the Appellant's) stated intention, the Appellant was deprived of an opportunity to expand upon his stated intention and the reasons which underlay that intention. (1827) 6 B & C 225, 231; 108 ER 436, 438 per Abbott CJ [1909] VLR 140, 147 per Madden CJ [1909] VLR 550, 565 per Madden CJ (1935)52 WN 8 (1931) 32 SR 149, 153 per Harvey J [1956] VLR 457 (1961) 62 SR 700 [1970] VR 840 [1979] 2 NSWLR 419 10. [1983] | NSWLR 1 11. [1984] 2 NSWLR 505 12. (1964) 81 WN (Ptl) 374 13. (1996) 40 NSWLR 327 CPN AMRYWND URJ Temiha v Sadebarth (Stein JA) 3 Even if - which it is not - this ground of appeal were open to the Appellant on the Notice of Appeal, I would reject it. In addition to those aspects of Mr Shore's cross-examination of the Appellant to which I have earlier referred, our attention has been directed to notes of the submissions made by counsel at the conclusion of the evidence, which notes were made, at the time, by Mr Shore's instructing solicitor (Affidavit AJ Bentley sworn 13 May 1997). Although it is accepted that those notes do not provide a complete record of what occurred during the course of submissions, they do disclose, both, that, during the course of submissions, Studdert J made it clear that he was giving consideration to the question whether he ought to find that the Appellant's stated intention would, in fact have been translated into conduct; and that Mr Higgs was able to, and did, make submissions in relation to that question. In the circumstances I would refuse leave to amend the Notice of Appeal, and would hold the Appellant to the original grounds of appeal. Beazley JA I agree. Stein JA I agree. Powell JA: (COUNSEL ADDRESSED) In the light of the indication which we have just given, Mr Higgs has informed us - as the transcript will record - that, although not instructed to abandon the appeal, he must concede that the grounds of appeal which were originally taken are not capable of being supported and that, in the light of the indication which we have given, it must follow the appeal should be dismissed with costs. That will, accordingly, be the Order of the court. Appeal dismissed. Counsel for the Appellant: DJ Higgs SC and M Fordham Counsel for the Respondent: HG Shore Solicitors for the Appellant: Orchiston Ranzetta Finney (Gosford) Solicitors for the Respondent: Abbott Tout