CACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL Mason P, STEIN JA and SHEPPARD AJA 24 September 1997, 12 June 1998 [1998] NSWCA 49 NEGLIGENCE — Personal injury — Plaintiff (appellant) injured in each of three separate motor accidents — Three actions brought by plaintiff to recover damages — Judgments entered for plaintiff in each action — No issue concerning liability — Plaintiff submits damages awarded in respect of each accident manifestly inadequate — Application by the plaintiff to lead fresh evidence on appeal — Complaint by plaintiff that trial judge affected by bias (apprehended not actual) — Consideration of matters relied upon in support of complaint in relation to bias — Complaint rejected — Consideration of further evidence sought to be led at hearing of appeal — Application rejected — Consideration of extensive written submissions made by plaintiff, findings and reasons of trial judge, and evidence — No question of principle — Appeal dismissed. Mason P, Stein JA and Sheppard AJA. These three appeals were heard together. The appeals are brought from three judgments of the Court in its Common Law Division (McInerney J) by which the appellant (the plaintiff in the proceedings at first instance) recovered damages for personal injury. His Honour found that the appellant was injured in each of three motor vehicle accidents as a consequence of negligence of the respondents or by a person or persons for whom one or other of the respondents was responsible. Each judgment took effect on 5 February 1996. In the proceedings brought against Ms Walker, the Court ordered that the respondent pay to the appellant the sum of $41,436 together with costs. In the proceedings against the Government Insurance Office the Court ordered that the respondent pay to the appellant the sum of $6,300. There was no order as to costs. In the proceedings brought against Mr Morley the Court ordered that there be judgment in the sum of $17,954 together with one half the plaintiff's (ie the appellant's) costs. The incidents which gave rise to the three causes of action each tookplace some considerable time ago. The first accident occurred on 14 September 1973, the second on 8 March 1980, and the third on 28 July 1982. The damages which the appellant claimed were for injuries to his neck and back, for aggravations of pre-existing conditions from which he suffered in his spine, and for depression and other psychological consequences caused, not only as a result of the accidents themselves but also because of matters which arose in the course of the trial, particularly the way in which the appellant was said to have been cross-examined. The appellant appeared by counsel for most of the trial but was unrepresented before us. His submissions are entirely in writing. They consist of two large volumes, the first of 225 pages and the second of 144 pages. The appellant indicated at the hearing of the appeal that he did not wish to add to these submissions by supplementing them with any oral submissions. The appellant has also made an application for leave to lead fresh evidence. In that application he relies on an affidavit sworn by him on 20 June 1997. 2 UNREPORTED JUDGMENTS The appellant's case is that the amounts of damages awarded in each of the cases was manifestly too low and that the amount of each of the judgments should be substantially increased by this Court. He made it very clear that, in the event that we should decide to uphold the appeals, he did not want a new trial. He wished the damages reassessed so that the matters might be brought to finality. There is no cross-appeal on behalf of any of the respondents who were represented by the one counsel. No question therefore arises in relation to liability. We may approach this appeal on the basis that each respondent was liable to compensate the appellant for damages as a consequence of the particular accident for which that respondent was responsible or vicariously responsible. His Honour first gave judgment on 26 May 1995. The judgment is most comprehensive. The appellant had made a large claim for economic loss. He had been an engineer employed by the Sydney Water Board. His employment came to an end in 1986 when he was dismissed in circumstances later to be referred to. His Honour concluded that the appellant's dismissal from the Board did not result from any disabilities he suffered in any of the accidents. He said that he was satisfied that the appellant had been fit at all times up to the time of judgment for the work of a consulting engineer. He added that this was 'a situation which he himself seems to accept having regard to his allegation that he has applied for some 800 jobs'. In this respect, it should also be mentioned that the appellant claimed to have carried on a part-time practice as a consulting engineer whilst he was in the employ of the Board. His Honour said that a problem had arisen as to medical and hospital expenses and past economic loss for the time the appellant had off work during the period of his employment. A claim had been made for past economic loss based on lack of promotion. His Honour rejected that claim. His Honour said that a claim was made in the sum of $20,866.94 for wage loss up to the time the appellant was dismissed by the Board. After indicating how this was made up, his Honour said that he was uncertain as to what was 'intended'. He said that, in the light of his judgment, both parties should be given the opportunity to consider their position in relation to the claims. He granted leave to the parties to make further submissions. He said that he had not made separate awards in respect to each action. He said that if the parties thought it appropriate that that be done, submissions could be made to deal with the matter. He said that the only award he proposed to make was in the sum of $40,000 for past general damages. He allowed nothing for the future as he was not satisfied that any problem which the appellant might then have resulted from any of the accidents. He said that, subject to any further submissions, he proposed to allow interest on the sum of $40,000 at 2 per cent per annum from 'the date of the first accident to the present'. We assume that his Honour meant to say, 'the date of each of the accidents'. No submission was made concerning the calculation of the amount of interest and we have assumed that his Honourawarded interest from the date of each of the accidents and only from the date of the first accident in the first of the matters before him. Further submissions in writing on behalf of the appellant were lodged on 9 October 1995. The respondents made further submissions in writing on 15 October 1995. His Honour published a supplementary judgment on 5 February 1996. In that judgment he apportioned general damages in respect of the first accident in the sum of $25,000, in respect of the second accident in the sum of $5,000, and in respect of the third accident in the sum of $10,000. He awarded UACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA and Sheppard AJA) no damages for any future pain and suffering because he was not satisfied that the appellant suffered any continuing disabilities as a result of any of the accidents. His Honour came to the question of economic loss and awarded $3,180.68 for economic loss caused as a consequence of the first accident, no sum for economic loss in relation to the second accident, and $4,000 in respect of the third accident. His Honour next came to medical expenses. In respect of the first accident he allowed $1,000 for physiotherapy and $150 for fares. He allowed a further $1,250 for the remainder of the medical expenses which were claimed. He allowed $1,300 for physiotherapy as a consequence of the third accident. His Honour then came to interest and awarded interest on the general damages of $25,000 awarded in respect of the first accident at two per cent per annum from 14 September 1973 to 26 May 1995, a period of almost 22 years, yielding a figure of $10,856. 26 May 1995 was the date of the first judgment. Judgment did not, however, take effect until 5 February 1996. No question concerning any shortfall in the interest awarded in the first or the other two cases was raised. The matter should, therefore, be left as it is. His Honour then set out the awards in each case and indicated how they were made up. We do not refer to the detail of the make up but the first award consisted of general damages, interest on those damages, loss of wages and medical expenses. The second award consisted of general damages and interest andthe third, of general damages, interest on those damages, lost wages and medical expenses. His Honour made the orders in relation to costs earlier referred to. An initial question to be determined is whether the appellant should be allowed to rely on fresh evidence. A number of separate matters are relied upon. Some of these do not fall into the category of fresh evidence in the sense of evidence not called at the hearing. That is because the appellant wishes to use part of the evidence upon which he seeks to rely in support of an application that the judgments appealed from were affected by apprehended bias on the part of the trial Judge. The evidence which is sought to be led is evidence of events which are claimed to have taken place during the course of the trial. We first deal with the admissibility and significance of the evidence concerning alleged bias and the submissions made in relation to that matter. In passing, it should be mentioned that the only consequence of a finding of apprehended bias would be the setting aside of the judgments appealed from. If the submission were upheld, this Court would be in no position to deal with the matter itself because findings, including findings on credibility, made by the trial Judge would be infected with the suggested bias of which the appellant complains. That was not a matter discussed with the appellant because there was no oral argument. Apprehended Bias: Annexed to the appellant's affidavit of 20 June 1997 are a number of documents including affidavits filed in the proceedings before his Honour and in other proceedings as well. One of these is an affidavit sworn by the appellant on 11 October 1995 in the proceedings at first instance. In that affidavit the appellant has deposed that a portion of the transcript of proceedings on 10 April 1995 is missing, that what his Honour said in the omitted portion of the transcript contained an implied threat by his Honour against the appellant, and that there were other omissions from the transcript of the proceedings on 10 April 1995 and on other days. The appellant deposed to what he claimed was said by his Honour on 10 April 1995. 4 UNREPORTED JUDGMENTS In order to explain the significance of this evidence, it is necessary to refer to the terms of the affidavit filed in the primary proceedings, the transcripts of the proceedings on 30 November 1994, 13 December 1994 and 10 April 1995, and the terms of an affidavit sworn by the appellant on 13 December 1994 which was before his Honour. It is not clear that the affidavit sworn on 11 October 1995 was before his Honour. There is no reference to the affidavit in either judgment nor in any transcript or other part of the proceedings except the affidavit of 20 June 1997. It is necessary to refer to the various documents in a little detail. We first turn to the three transcripts of the proceedings on 30 November 1994, 13 December 1994 and 10 April 1995. The transcript for 30 November 1994 consists of a statement made by his Honour which Court Reporting has headed 'Extract of his Honour's remarks'. There is nothing else recorded in the transcript. Enquiries made of Court Reporting revealed that his Honour did make further remarks after the conclusion of the extract which has been transcribed. We have obtained a copy of the complete transcript for 30 November 1994. It is available for inspection but what is said in it does not add materially to what his Honour said in the extract which was transcribed. In what his Honour said, he apologised for bringing counsel back but said that there was a matter that he thought proper to bring to their attention. He said that it had caused him some concern. He said that there had been a reference in the cross-examination of the appellant — only a very brief reference — and in the cross-examination of other witnesses (he referred to Dr Grady) about litigation that the plaintiff had been engaged in in other matters. He referred to the fact that some of the cases were reported in the Australian Law Journal Reports and referred to a matter of Cachia v St George Bank Ltd (1993) 68 ALJR 124. There, there is a brief report of an application made by the appellant to re-open an application for special leave to appeal against a judgment of this Court. The application was refused by the High Court. His Honour said that there had been a number of other cases in which the appellant had been a litigant and in which he had appeared on his own. He added that there was some material which had caused him some considerable concern in some of the filed material. His Honour continued: For example in the case of Cachia v Isaacs and another, which is unreported in the Court of Appeal on 23 March 1989, Mr Justice Samuels referred to the fact in these terms, this was a claim where the applicant or the plaintiff was claiming that he was entitled to some costs award in respect to the work he had put in in preparing these cases, it's a long involved matter and you can have a look at it, but this is what his Honour said "Although the appellant's claim" and I am reading from page 3 "claim was for the use of his time on work associated with the appeals which would otherwise have been used in the production of income in my field of profession", he did not furnish the taxing officer with any evidence save for calculations set out in the appellant's affidavit establishing his salary as an employee of the Metropolitan Water Sewerage and Drainage Board and the rate at which he charged as a consulting engineer, an occupation he pursued for two hours per day after his ordinary employment had ceased. Well, I would like some explanations about that because the plaintiff has said that he has been incapable of doing his work. That's not the finish of it and I am only giving some examples of it. His Honour said that in an affidavit in a matter of Cachia v Hanes sworn by the appellant on 4 April 1989 he referred to the fact that he was a chartered engineer. His Honour quoted from the affidavit saying that the appellant had said, UACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA an@ Sheppard AJA) 'Iam a self-employed consulting engineer; in this employment my fees are set at $85.00 per hour and are substantially lower than the recommended fees on the scale of the Association of Consulting Engineers Australia'. The appellant also said, 'The costs claimed in the bill of costs of the defendant in the action ... are not for legal work and are not for legal fees; the said costs which are out-of-pocket expenses are claimed for disbursements and for the use of my time on work associated with the said defence which would otherwise have been used in the production of income in my field of profession'. His Honour said that this was only some of the material which he had looked at. The decision of the High Court in Cachia v Hanes (1994) 179 CLR 403 is the leading authority on the question whether a litigant in person, who has been successful in proceedings and received the benefit of an order for costs, is entitled to claim compensation for time spent by a litigant who is not a lawyer in preparing and conducting a case. The Court held that the costs for which the Rules provide are confinedto money paid or liabilities incurred for professional legal services. The Court affirmed the decision of this Court in Cachia v Hanes (1991) 23 NSWLR 304. It would appear that his Honour became aware of the decisions on costs involving the appellant and went to the Court files in relation to them there discovering material which, in his view, might bear upon a critical question in the case, namely whether the appellant's earning capacity had been substantially diminished or lost as a consequence of the injuries suffered by him in one or more of the accidents which had led to the litigation. It should be clear that much of the litigation in which the appellant was involved and which had led to two applications to the High Court, was well known to a number of members of the judiciary and of the profession long before the present proceedings were heard. The decision of the Court of Appeal in Cachia v Hanes was given in 1991 and the decision of the High Court in 1994. The other matters in which the appellant had been involved may not have been quite so well known, but any case that goes to the High Court for leave has a certain amount of notoriety in the profession and amongst judges, particularly the Court from which the application for leave is brought. The application for leave in the St George Bank matter was refused on 10 December 1993, again well before the judgments in this matter were delivered. The material in the affidavits to which his Honour referred in his statement would have been available to the solicitors for the defendants in the three cases if it had been sought at or before the time of the trial, the hearing of which commenced on 27 October 1993. We interrupted the account of the statement made by his Honour on 30 November 1994 to explain the nature of the litigation in cases in which Mr Cachia had sought to claim loss of earnings for time involved in litigation (not this litigation) in which he had been involved. His Honour referred to some of the discussion which had occurred in cases which were before the Court of Appeal including a hearing on22 August 1990 in the course of which Handley JA said to the appellant, "Apart from the fact that you are now in full time professional work as an independent consulting engineer, it is possible that you drafted that notice of appearance outside business hours'. McInerney J concluded his statement by saying that, having looked at these various matters, he thought it proper to give the appellant an opportunity to explain. He said that he regarded the matters he had raised with great seriousness. He said that it was possible that the appellant had led the Court of Appeal to 6 UNREPORTED JUDGMENTS believe that he was an active full time consulting engineer. Rather than deliver a judgment in which he referred to those matters without giving the parties an opportunity to be heard, he thought that natural justice required him to give everyone an opportunity to have a look at the material and to make such further submissions as they might be advised. In the present proceedings the appellant submits that his Honour ought not to have looked at the material in the other cases, that that material had no relevance to the cases in question here, and that his Honour's eventual use of that material in the judgment delivered on 26 May 1995 was improper. After his Honour had said what he did, counsel for the appellant referred his Honour to the judgment in Cachia v Hanes which had been delivered by the High Court on 13 April 1994. In his response to this, his Honour said that the appellant was 'a prodigious litigator, there's no question about that. There are cases festooned all over the law reports and elsewhere'. He said that these were matters that had caused him considerable concern because 'he [the appellant] claims before me that not one tap of work has he done since 1986, that's his case isn't it?'. Counsel then appearing for the appellant answered, 'Yes your Honour, in terms of his employment as an engineer'. His Honour said that the appellant had said in the course of his evidence that he would come home so tired after work that he would have to go to bed. Hecontrasted this evidence with what had apparently been told to Samuels JA in the course of one of the hearings in the Court of Appeal. Counsel for the appellant said that the matters to which his Honour had referred were matters which had not been agitated or tendered in evidence by either side during the proceedings. His Honour agreed with this but said that in the circumstances it went to a number of issues. He said that it could be that some sort of a fraud had been perpetrated and he was not going to stand by when he had material of the kind to which he had referred and do nothing about it. He said that he made himself clear in case there was any misunderstanding about it. He also said that the matters referred to were matters of public record and should have been agitated in the evidence. He said he had looked at files which he did not identify. Counsel for the respondents raised the question whether the appellant was likely to put on a further affidavit. Counsel said that if this was to be done he would want the opportunity of cross-examining. After some further discussion the matter was stood over to a date to be fixed. His Honour said that all the matters that he had been referring to were either in the judgments or in the files of the Supreme Court. It may be observed that there was no specific reference to particular affidavits or statements other than the ones referred to by his Honour in the statement with which he began the morning's proceedings. The matters came back into the list before his Honour on 14 December 1994. The appellant was then represented by Mr M J Neil QC and Mr Anderson who had appeared for the appellant during the trial. Mr Anderson had appeared before his Honour on 30 November 1994. The defendants were represented by Mrs Field who is recorded as saying as the proceedings opened, 'They say your Honour should decide the case on the evidence'. His Honour said that she could tell them that from his point of view he did notpropose to do that. Mrs Field then said that her instructions were to leave it to the Court. His Honour said, 'They can take that to the Court of Appeal if they want to, but I am not going to decide the UACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA and Sheppard AJA) case on the evidence if I find other material unsatisfactory'. It is not clear who is referred to as 'they' in Mrs Field's remarks, but we have assumed that it must have been counsel for the appellant. Mr Neil told his Honour that the appellant's primary application was that his Honour should disregard the matters that his Honour had raised and referred to on the last occasion and decide the case on the evidence that had been given in the case. Mr Neil added: We ask that Your Honour decide the case on the evidence and disregard and set aside out of your Honour's mind any material at which Your Honour has looked or had regard to such as was mentioned in your Honour's remarks on 30 November. If Your Honour is not disposed to that course, we alternatively and without prejudice to that, request that my client be able to put on an affidavit dealing with those matters and at some convenient time he can be cross-examined. Mr Neil said that he understood that an agreement had been reached, subject to his Honour's approval, that the matter proceed in that fashion. His Honour said: Mr Neil, the position is this. That there was reference in cross-examination to some material as to your client's ability to conduct extensive litigation. I think Mr McDonald had cross-examined Dr Grady who said he was not capable of so doing and I looked at the material and I have no doubt that I would have regard to it because I would think Ineed an explanation, but it is as simple as that. I note your objection, you are protected in any matter that may arise and some other Court can determine the course I take, whether it is correct or incorrect, but I reject your submission that I should not have regard to that material. His Honour then granted the appellant leave to put on an affidavit. Cross-examination on any such affidavit was foreshadowed and the matter was stood over to a date to be fixed. Two matters should be observed. Firstly, there was no application to his Honour to disqualify himself from continuing to hear the case. One reason why that was so emerges from paragraph B11.6 of the appellant's affidavit of 20 June 1997. There, he said that, in about December 1994, after his Honour had said that he would reopen the hearing, the appellant's counsel suggested that disqualification of hisHonour should be sought. The appellant refused to accept this advice 'because I did not want to go through the trauma of a new trial'. After some further discussion, Mr Neil told the appellant that he could seek an order that his Honour deliver a judgment if he withdrew from the case. We do not understand this statement, but nothing turns on it. In the upshot no application was made to his Honour to disqualify himself as a consequence of what he had said on 30 November 1994. The second matter to be observed is the fact that it was not suggested by counsel for the appellant nor by his Honour that it would have been advisable for the material to which reference had been made in a most general way to be precisely identified so that the appellant, in preparing his affidavit, could address the specific matters which had caused his Honour the anxiety to which he referred. But counsel for the appellant did not ask for this to be done and that, in our opinion, is the end of the matter. There was thus an assent by the appellant and his counsel to the situation to which his Honour had referred in the statement he made on 30 November 1994. In other words, the hearings on 30 November and 14 December 1994 seem to have proceeded on the assumption by all in Court that the material in the other files was, superficially at least, in conflict with the evidence which the appellant had given in the presentation of his case. 8 UNREPORTED JUDGMENTS It is appropriate to decide at this point whether there was anything irregular or improper in his Honour having looked at the files which he did. The files, of course, are part of the record of the Court. The Court is a public institution. Its proceedings are in public and those who are parties before it must realise this. Normally, the Court receives evidence in a case and looks only at that evidence. But, as mentioned earlier, the litigation in which the appellant had been engaged in relation to costs was well known to many members of the legal community. There would have been many connected directly or indirectly with that litigation and others who had read judgments in the matter (as indeed we had ourselves) who would have known generally the nature of the claim that was made. See, for example, Secretary,Department of Foreign Affairs & Trade v Boswell [No 2] (1992) 39 FCR 288 referred to by Toohey J in Cachia v Hanes at 423. As mentioned, if those responsible for the presentation of the respondents" cases had obtained the material from the other files and relied on it in their cross-examination of the appellant, no one could have had the slightest objection. The objection stems from the fact that his Honour raised the matter of his own accord, it not having been raised by either party. What his Honour did, however, was not to use the material in a judgment without notice to the parties. On 30 November 1994, he made the statement to which we have referred in which he referred generally to the material and the fact that he had read it. He also referred to the fact, which appears to have been common ground, that the material was in conflict with the evidence which the appellant had given in the proceedings at hand. It was then up to the respondents to pick up the material and make such use of it as they thought fit. Subject to what follows, his Honour was correct in saying that, having learnt of the matter, it would be wrong for him to proceed to deliver judgment as if the material in the files which he had discovered did not exist. What is, however, puzzling is why counsel for the appellant did not ask for specificity. There was the chance that their client was to be accused of fraud. That was a matter mentioned by his Honour. Fraud is always something that must be alleged with particularity. The appellant was entitled to have the matter spelt out by reference to the particular material which was being relied upon. But nothing was done to pursue this course. The circumstances which confronted his Honour were quite unusual. After he had reserved his decision, he became aware of material bearing on the issues in the case, particularly upon the issue of the credibility of the appellant which was a major issue in the proceedings. Once he became aware of the matters referred to in his statement of 30 November 1994, he was faced with a problem. Should he have endeavoured to put the material out of his mind and say nothing about it to the parties? Should he simplyhave disqualified himself from further dealing with the proceedings without any further hearing? Or should he have disclosed the nature of the information which he had to the parties in open court? That is the course he took on 30 November 1994. From what he said in the statement he made, it would appear that the information he then had, came to him, not as the result of some chance occurrence, but from his own or his associate's researches. One understands his Honour's reasons for taking the course which he did. He realised that the matters he had discovered were directly relevant to one of the principal issues in the case. He was concerned that the appellant may have engaged in fraudulent and dishonest conduct in previous litigation in which he had been involved or in the instant proceedings or, perhaps, in both. His object was to bring the matter out into the open. UACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA an Sheppard AJA) But understandable though this was, his Honour ran the risk of being perceived to have descended into the arena. He ran the risk of being perceived to have taken sides or at least to have placed himself in the position of an investigator, a role which would have conflicted with his role as a judge. The course he took, understandable though it was, was thus fraught with some difficulty. If it was to be undertaken it should have been carried out with due sensitivity to his own position as the judge in an unfinished trial. We readily understand his Honour's dilemma. All we say is that it would have been preferable for his Honour to have expressed himself in more neutral language than he did. In that way he would have stood a better chance of being perceived to have remained above the conflict. We realise that the use of hindsight may be unfair. But the only satisfactory way the information could have been brought to the attention of the parties was by a statement made in open court objectively referring to the fact that material of the kind referred to had come to his notice and then by specifying precisely in a written statement what the material was. Affidavits should have been referred to by reference to the numbers of the proceedings in which they were sworn, their dates, the deponents of them, and the particular paragraphs in or annexures to them which were relevant. References to otherdocuments should have been made with sufficient particularity for them to be easily identified. The documents themselves, or copies of them, should have been in court and available for inspection by the parties and their legal representatives. An adjournment should then have been granted to enable the parties and their legal representatives to consider what had been said leaving it to them to ask for the matters to be restored to the list for the purpose of seeking such directions as they thought appropriate. If no such application was made, the material referred to by his Honour should have been disregarded by him and the matters decided on the evidence already led. In the result, we are saved from considering whether what his Honour did brought about a miscarriage of the trial by the course of subsequent events. To these we now refer. As mentioned, counsel for the appellant did not ask his Honour for specificity. All that happened was that an affidavit from the appellant was foreshadowed. That was the way the case was conducted and the appellant is bound by that conduct. That having been said, it does not appear from the totality of the material which his Honour eventually had that the position would have been any different if the more conventional procedure of the matter being raised by the defendants to the action had been followed. There is, as will be demonstrated in due course, a sharp contrast between the appellant's evidence before his Honour and the substance of affidavits and statements which he made in other proceedings. The matter came back into the list on 10 April 1995. The appearances were noted as those of counsel who had previously appeared. It was also noted that an affidavit of Marcus Alan John Elliott was filed in Court and admitted into evidence. Further time was granted to Mr McDonald to consider the matter. A report of Dr Grady dated 21 February 1995, said to have been an update of the appellant's medical condition, was tendered. Objection was taken because it had been served on 24 March and related to the appellant's psychological condition when that aspect of the case had been completed. The tender was rejected. The rejection of it is a matter complained of by the appellant in this appeal. 10 UNREPORTED JUDGMENTS The reporter has noted that the appellant was called to give oral evidence at 10:09 am. The transcript does not reveal what time his Honour sat but presumably it was at 10:00 am or thereabouts, that being the usual commencement time for hearings. Not referred to in the preliminary matters which took place prior to the appellant going into the witness box, was an affidavit sworn by him on 13 December 1994 which was described by Mr McDonald, who was cross-examining, as having 'now been tendered in this matter'. Before we come to the contents of that affidavit and to the appellant's evidence, it is necessary to deal with evidence by the appellant to the effect that the transcript for the period up to the time he went into the witness box is incomplete and that remarks made by his Honour have been omitted therefrom. In the appeal book is a letter from the Director of the NSW Department of Courts Administration. The letter is undated. It referred to a request for transcript regarding 'discourse' between his Honour and Mr Neil on 10 April 1995. The Director said that the court reporter had been asked to check her records regarding this matter and advised that there was nothing recorded before the appellant was called. That statement is not quite correct because there is, as earlier noted, reference to the affidavit of Mr Elliott and the report of Dr Grady. It seems likely that there was also mention made of the appellant's affidavit of 13 December 1994 although that may not have occurred because it had been previously filed. The appellant's affidavit of 20 June 1997 opens with a heading 'Missing Portion of Transcript'. The appellant said that a portion of the transcript of the proceedings of 10 April 1995 was missing and that what his Honour said, although the record contains no account of his remarks, constituted an implied threat against him. He also said that in that portion of the proceedings there occurred the tendering of his affidavit of 13 December 1994, the making of submissions by counsel and the making of objections tothe reopening of the hearing on that day. He said that other portions of the proceedings on other days of the hearing were also missing from the transcripts. The appellant said in his affidavit that at the opening of the proceedings on 10 April 1995 his Honour said that he felt slighted by what the appellant had said in his affidavit sworn on 13 December 1994. His Honour, so the appellant claims, said that he took that as a personal slight to himself. The appellant also said that at the opening of the proceedings on 10 April 1995, his counsel tendered the affidavit of 13 December 1994, objected formally to the reopening of the hearing "at some length' and made submissions. The appellant added that the portion of the transcript in which these matters would have been recorded was missing. He referred to the fact that he had been sworn at 10:09 am and said that this indicated that a transcript corresponding to approximately nine minutes of the proceedings was missing. We would, however, comment that nine minutes seems a very short space of time in which all the matters deposed to by the appellant could have been raised and discussed. Because of the matters relied upon by the appellant in his submissions and his affidavit, Sheppard AJA made enquiries of the Court Reporting staff through the Registry. His enquiries have taken the matter no further than the Director's letter which is in the appeal book. His Honour was informed, however, and the information received is in accordance with our understanding of what occurs, that it is not usual for discussion between counsel and the Judge always to be transcribed. When there is such a discussion, the transcript is invariably edited so URACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA and Sheppard AJA) that it appears in a form similar to the transcript here. In other words, there is a note made of the tender of evidence or of affidavits, the admission or rejection of documents which are tendered as exhibits and so on. Sometimes reporters transcribe the entirety of what is said and then edit the matter. We understand that not to have been the case here but have not been able to speak directly to the reporter involved. In relation to the question of omissions of parts of proceedings from transcripts, it may be noted that on the first day of the hearing, 26 October 1993, the transcript notes the appearances, the fact that there was a short discussion regarding the possible length of the case, the fact that Mr Neil opened the case to his Honour, that there was then a short discussion of the issues and the fact that it was noted that the appellant had taken a large amount of written material into the witness box. The notes made by the court reporter are as we have stated them. There was no record made of any of the discussion about any of the matters which were noted. Similarly, there is no verbatim account of discussions concerning the tender of exhibits, the allowance and disallowance of them, or the allowance and disallowance of questions asked by counsel. To our knowledge, this has been the Court's practice for very many years. In order to understand the appellant's concern about his Honour's remarks concerning a slight to him, it is necessary now to go to the affidavit of 13 December 1994. That affidavit covers a number of other matters as well. At the risk of disturbing the continuity of these reasons, we have, nevertheless, decided to refer to the affidavit comprehensively. It has a significance in relation to the appellant's very substantial claim for economic loss which was largely rejected by his Honour. That is one of the matters about which the appellant has complained in this appeal. The affidavit opens with a reference to an affidavit sworn by the appellant on 4 April 1989, a copy of which is annexed to the affidavit. That affidavit was sworn in proceedings in this Court in the Equity Division (No 3311/87) between Kenneth and Nola Hanes and the appellant. The affidavit was said to relate to the appellant's bill of costs. In the affidavit, the appellant deposed to the fact that he was a chartered engineer and to his general qualifications as an engineer. He said that he was a self employed consulting engineer. In that employment his fees were set at $85.00 per hour and were substantially lower than the recommended fees on the scale of the Association of Consulting Engineers of Australia. He said that his defence of the proceedings in the Equity Division had taken up a large amount of histime which otherwise would have been used to earn income. He said that he had given evidence in the matter as a witness and also in his capacity as an expert on relevant building and construction aspects of the case. He said that the costs that he claimed were not for legal work or legal fees but were costs which were out-of-pocket expenses. They comprised disbursements and 'for the use of my time on work associated with the said defence which would otherwise have been used in the production of income in my field of profession'. He said in the final paragraph that all the costs were for disbursements and for loss of earnings. In his affidavit of 13 December 1994 sworn in these proceedings, the appellant said that at the time he swore the affidavit in the Equity proceedings he considered himself to be a self employed consulting engineer. He referred to a copy of an advertisement which was published in The Sydney Morning Herald on 11 March 1989 which was annexed to his affidavit. The advertisement said that the appellant was a consulting electrical and electronics engineer and 12 UNREPORTED JUDGMENTS charged $75.00 per hour for his services. He said that the advertisement and similar advertisements were not successful and he obtained no work from them. He said that his successful defence of the Equity proceedings consumed a large amount of his time. He said that he believed that the time spent on his defence took him away from income earning as a consulting engineer and 'an investment manager'. He said that his work as an investment manager included attendance to the management of his investments and being available to perform work as a consulting engineer and designing strategies relating thereto. But he added that in fact he had no consulting work to do. He said that he was not legally trained and acted as a litigant in person. He referred to the work he had had to do to prepare the case in which he was representing himself. He said that he 'held himself' to be a self employed practising consulting engineer and at that time had decided that his normal working hours were to be 9:00 am to 5:00 pm Monday to Friday. He claimed no costs for work done on the litigation outside those hours. But he added, 'However, because I did not obtain consulting work, I had no such work to do'. He said that a portion of the costs in the bill of costs wasquantified in terms of the use of his time. Such time would have been used as described earlier in the affidavit. He said that the term 'loss of earnings' in the affidavit sworn in the Equity proceedings was mistakenly applied as the costs listed in the bill of costs were for disbursements and for the specific items of litigation work which were carried out by him on which compensation was claimed on a timed basis but converted to an equivalent to a consulting engineer fee rate. There is then a good deal of argumentative material in the affidavit to which it is unnecessary to refer, and also an account of the proceedings which were in the Court of Appeal and then in the High Court. The appellant said that, in order to understand his affidavit, it needed to be read in the context in which it was written. He explained the nature of the problem which faced litigants in person. He then referred to a further affidavit which he had sworn on 24 March 1986. A copy of this affidavit is annexed to his affidavit sworn on 13 December 1994. The 1986 affidavit was filed in a matter in this Court (No CA392/84) between the appellant and three persons carrying on practice as solicitors under the name Maurice Isaacs & Grant. The appellant referred to his qualifications. He said that he was employed by the Metropolitan Water Sewerage and Drainage Board as an electrical and electronics engineer for seven hours per day five days a week. He gave particulars of the rate of payment and said that sometimes he worked overtime. He added that he also practised as a consulting engineer and as a writer of engineering papers and articles for publication in electrical and electronics journals and magazines for two hours per day for five days a week between the hours of 5:00 pm and 8:00 pm. We have assumed that the apparent discrepancy in this statement is explained by the fact that he was saying that he carried out two hours" work each day between the hours 5:00 pm and 8:00 pm. The appellant's fees for this work were set, so he said, in accordance with the scale of fees of the Association of Consulting Engineers of Australia. He referred to the detail of the scale. He said that he also worked as a property manager with managerial responsibilities relating to several residentialproperties. He then made a claim for the costs of doing work in relation to the case in which he swore the affidavit. It is unnecessary to refer to the detail of this. The appellant sought to explain this affidavit in the context of the present case. He referred to his statement that, at times, he worked overtime in his employment with the Water Board. He said that, because of the essential services nature of the URACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA ahd Sheppard AJA) services provided by the Water Board, it was not unexpected that employees would work overtime when it was required. They were under a duty to do so. He said that relying on his memory, he was almost certain that he did not work any overtime in the years 1973-1980 but worked some overtime in the years 1981-1982. He worked late on about 10 to 30 separate days. In 1983 he said he would have worked overtime on only a few occasions if any. He did no overtime work in 1984, 1985 and 1986. He said his physical condition would have tended to prevent him from doing so. He repeated his statement that he had done no work as a consulting engineer although he had made himself available to do it. He said that he began to write a couple of technical papers for publication but was depressed and failed to bring them to completion. He said that it was not possible for him to remember with sufficient precision what he meant, or had in mind, when he drafted his affidavit many years ago. The appellant next referred to an affidavit sworn on 4 June 1990. A copy of it is also annexed to the affidavit of 13 December 1994. It was sworn in the matter in this Court (CA40159/90) which has been mentioned previously in which he was the appellant and Mr and Mrs Hanes were respondents. In the 1994 affidavit, he referred to a statement in that affidavit that he was appearing in Court at that time 'at some personal sacrifice and undoubtedly at much economic loss ... '. He said this was a reference to his physical state of health. He was in pain and felt nauseated. He said that it was a personal sacrifice that he had to take pain relieving and other drugs with their health impairing side effects to enable him to attend when 'T should have been in bed'. He said the words 'at much economic loss' related to someinvestment management matters which he would have otherwise attended to. Details had slipped his memory. He said that statements such as this were not amenable to exact dissection and analysis. They were in generalised everyday language which 'springs up in the mind of the sayer'. He said that they might not necessarily 'be provable by hard facts'. There follows some reference to his discussions with judges before whom he appeared in these various matters. We do not find it necessary to refer to these. Finally, he said that it seemed that mistaken assumptions were not uncommon. He referred to a judgment delivered on 13 July 1994 on a notice of motion in 'my St George Bank matter' (CA40618/90). He said, 'His Honour Mr Justice Priestley, whom I admire and for whom I have the greatest respect, said ... '. He went on to indicate that Priestley JA whom he admired had himself misunderstood something. It was that remark which he claimed upset McInerney J on 10 April 1994. It provoked, so he said, the reaction earlier referred to. Before us his submission is that his account of what transpired on 10 April 1995 should be accepted and that his Honour's reaction might lead a fair-minded observer to entertain apprehension of bias not so much by prejudgment of any issue (cf Livesey v The New South Wales Bar Association (1983) 151 CLR 288) but because his Honour's remarks were an indication of a hostility to the appellant such as might be thought by a fair-minded observer to deprive the appellant of a fair trial. Before proceeding to deal with the appellant's claim of apprehended bias based on remarks alleged to have been made by his Honour on 10 April 1995, we should make two observations. Firstly, at the hearing on 10 April 1995, there was also read the affidavit of Mr Elliott earlier referred to. It deals with earnings by the appellant at the Water Board and is not relevant for present purposes. More importantly, the affidavit of 13 December 1994 and the earlier affidavits annexed to it were before his Honour on 10 April 1995 before he delivered his principal 14 UNREPORTED JUDGMENTS judgment. It was open to his Honour to use the material in the affidavits when assessing the appellant's claim for economic loss. Whatever these affidavits mayhave established in relation to the appellant's claims for costs in other proceedings, they establish quite positively that the appellant's earnings after the termination of his employment with the Water Board in September 1986 were non-existent. They also establish that the part-time consulting practice the appellant claimed to have had during the period of his employment with the Water Board was not productive of any income. Of course, the appellant's claims that his Honour's findings that his earning capacity was severely affected by injuries suffered in the accidents in respect of which he sues were not made out, remain to be dealt with. Those are matters which need to be considered in context. But the appellant's own evidence plainly establishes that any attempt he made to set up practice, part-time or otherwise, as a consulting engineer was quite unsuccessful. There is, of course, a more fundamental question, namely whether there was any real attempt at all to establish such a practice. The only evidence of the course of the proceedings during the first ten minutes on 10 April 1995 was that given by the appellant himself. He was then represented by counsel. There is no affidavit by his then solicitor or counsel concerning the matter. Nor is there any evidence from the legal representatives of the respondents to the appeal as to what transpired. What does emerge with some clarity is that there was no objection taken by counsel for the appellant to whatever it was his Honour said and no application made to his Honour to disqualify himself from the further hearing of the case before he delivered the principal judgment on 26 May 1995. The appellant's concern was, however, the subject of an affidavit sworn by him in the proceedings at first instance on 11 October 1995. In that affidavit, the appellant said that on 10 April 1995 he was sitting in the Court approximately two rows behind his solicitor, Mr Elliott. He was wearing hearing aids which were switched on and could hear what was being said by his counsel, Mr Neil, and what was being saidby McInerney J. He said that Mr Neil made objections to the Court at some length and then 'formally tendered in evidence' the affidavit which he had sworn on 13 December 1994. He said that McInerney J said words similar to those which the appellant had written the following day in a letter to his solicitors dated 11 April 1995. The letter is annexed to the affidavit of 11 October 1995 and says that his Honour said,' ... Mr Cachia said that he admires and respects Mr Justice Priestley. I take that as a personal slight to me ... He conducts his own litigation, and he who litigates his own case has a — you know how the saying goes'. In the letter to his solicitors, the appellant also said that other things his Honour had said on other hearing days did not appear in the transcript. He said that he thought it important to record what his Honour said while memories were still fresh, 'and in that regard may I request you to write to me the words you recall he said'. The letter concluded with the further sentence, 'What his Honour said may be of significance if an appeal from his judgment eventuates'. In his affidavit the appellant said that his Honour had also said, 'He [the appellant] said that [the reference to his admiration for Priestley JA] to slight me [McInerney J] ... I take it as a personal slight to me ... ' The appellant said that his Honour put a question to Mr Neil. He could not remember how it was phrased but its effect was that he asked Mr Neil for his opinion whereupon Mr Neil spoke in response. The appellant said he only UACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA ah Sheppard AJA) remembered a portion of the response. He said that Mr Neil said in part ' ... he said that to show there was no animus against his Honour'. The appellant said that he remembered that he recoiled with alarm and apprehension at what his Honour had said. He understood it to be a threat. He said that his Honour had spoken with severe and angry countenance and his voice was threatening but without apparent agitation. He felt that he was more serious and threatening because of that. He said that he knew from his Honour's attitude towards himduring the previous seven days of the hearing that he disliked him and was antagonistic towards him. He added, 'I was dismayed by the thought that his Honour was going to heap retribution upon my head'. He said that what he had said in his affidavit of 13 December 1994 was not intended to be a slight. The thought had not entered his mind that it would be read in that way. The appellant said that, on the second day of the hearing in October 1993, his Honour had said to counsel for the respondents, Mr MacDonald, while the appellant was being cross-examined, 'You won't toss him. You won't toss him'. About half an hour later he had said, 'You are not going to toss him'. He said that he subsequently learnt that these remarks had not appeared in the transcript. Again, there is no evidence of this other than that given by the appellant. The appellant said that during the day on 10 April 1995 he kept thinking that what his Honour had said about being slighted was not going to appear in the transcript. He decided that he should ask his solicitor, Mr Elliott, to supply him with a record of what his Honour had said. He did so by the letter written on 11 April 1995. He said that Mr Elliott had not complied with his request although he acknowledged receipt of the letter by letter dated 20 April 1995. He said that he raised the matter again with his solicitors in his letters of 5 May, 7 July, 4 August and 22 August 1995. He reminded the solicitors that he had not received a reply to his letters of 11 September 1995 and 3 October 1995. On 5 August 1995 he wrote to Mr Neil asking him for an account of what had been said and also mentioned that Mr Anderson had declined his request for a statement saying that it was not appropriate for him to provide one. He told Mr Neil that he was his 'last resort'. On 5 July 1995 the appellant wrote to the Registrar of the Court of Appeal complaining that the 'discourse' between his Honour and Mr Neil at the commencement of the proceedings on 10 April 1995 was missing from the transcript for that day. This led to the enquiries for the transcript of theproceedings between 10:00 am and 10:09 am on 10 July 1995. We have earlier indicated the outcome of these. On 4 August 1995 the appellant wrote to his solicitors complaining that his letters to Mr Elliott had not been answered. He asked for a reply. He referred to the possibility that Mr Elliott may have taken hearing day notes and asked for a copy of the relevant portion. No reply was received. As mentioned, this matter was raised as part of the application which the appellant has made to lead fresh evidence. The principles which guide an appellate court in deciding whether to grant leave to lead fresh evidence are well settled. In Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, the High Court said (at 141-2): In cases where all that is involved is the discovery by the unsuccessful party of fresh evidence, Orr v Holmes (1948) 76 CLR 632 and Greater Wollongong Corporation v Cowan (1955) 93 CLR 435 establish that the reconciliation of 'the demands of justice' and the 'policy' that there be an end to litigation at least prima facie (or 'generally' — see McDonald v McDonald (1965) 113 CLR 529 at 532-3) dictate that the successful 16 UNREPORTED JUDGMENTS 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 considerations 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 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 might 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.' But the matter now being dealt with does not raise a fresh evidence point although both sets of submissions treat it as if it does. As mentioned, a matter such as this raises a question about the proper conduct of the trial. It follows that questions relating to due diligence or the likely effect on the outcome of the trial do not arise. What his Honour said on 10 April 1995 may not have been recorded but in the weeks and months that followed that hearing, the course of proceedings that day must have been reasonably clear in the minds of those who were present in Court. The appellant swore his affidavit of 11 October 1995 in which the matter was documented. By then the appellant was apparently acting for himself for the affidavit is filed in his name and not in that of any solicitors. The trouble, however, is that, so far as the record discloses, the affidavit of 11 October 1995 was not brought to his Honour's attention, nor was there any communication, other than service of a copy of the affidavit on the respondents" solicitors, in which it was suggested that an application was to be made that his Honour disqualify himself on the ground of apprehended bias. The course of the hearing after the principal judgment was delivered on 26 May 1995 did not involve any further oral hearing. Instead, written submissions made on behalf of the appellant were lodged on 9 October 1995 and written submissions on behalf of the respondents on 15 October 1995. Judgment followed on 5 February 1996. The appellant's further submissions were lodged by his solicitors under cover of a letter which said that they had been instructed not to make any further submissions in reply. The respondents" further submissions were signed by their counsel. There were no submissions in reply apparently because of the appellant's instructions. It may be observed that the appellant's affidavit of 11 October 1995 was sworn two days after the lodgement of the submissions. There is no reference in the appellant's further submissions to the affidavit of 11 October 1995 but there is reference in a preface to those submissions to the grounds of appeal filed on 14 June 1995. It is said that the further submissions are made without prejudice to the appellant's 'wider grounds of appeal' filed on 14 June 1995 and 'any subsequent or amended appellate proceedings'. It was of course inappropriate to file any notice of appeal at that time because there was no order against which an appeal could be brought. Orders were not made until 5 February 1996 and it is from those orders that the appeals in this matter come. Nevertheless, a notice of appeal was filed on 14 June 1995 and a supplementary notice of appeal on 23 February 1996. UACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA ahd Sheppard AJA) Amongst the grounds of appeal included in the notice filed on 14 June 1995 were grounds that his Honour had wrongly impugned the character of the appellant and defamed him and did not afford him an opportunity to defend himself, wrongly compromised and prejudiced his role as an impartial adjudicator by unilaterally 'and behind the scenes' embarking on a fishing expedition and investigating and searching for adverse evidence relating to one of the parties only, attempting to use and using wrongly material which his Honour discovered in Court files pertaining to other litigation, and wrongly reopening the hearing on 10 April 1995 after the submissions in chief of the appellant had been filed, after the submissions of the respondents had been filed and after the submissions in reply of the appellant had been filed. The grounds also say that his Honour wrongly conducted himself gruffly, rudely and overbearingly during the hearing in consequence of which the appellant became tense, irritable, distressed, depressed and was adversely affected as a witness. It is further complained that his Honour wrongly acted with bias against the appellant in the making of his findings and failed to bring an impartial mind to bear on the proceedings. There is then reference to the proceedings on 10 April 1995 and the slight which the appellant claims his Honour said he had suffered as a consequence of the affidavit sworn on 13 December 1994. The matters upon which the appellant relies were thus squarely raised in a notice of appeal filed by him, not his solicitors, on 14 June 1995. That notice would have told the solicitors for the respondents of the appellant's concerns. The grounds of appeal are on the Court's file but they are not evidence. There is no evidence before this Court of any of the matters complained of except the appellant's evidence of what transpired on 10 April 1995 and his complaint that earlier in the trial his Honour had said to counsel for the respondents during his cross-examination of the appellant words to the effect that he would not 'toss' him. A puzzlingfeature of the state of the evidence is the absence of evidence from any of the persons present in Court on 10 April 1995, particularly from the three counsel and two solicitors who were engaged in the case. In ordinary circumstances the Court's course would be clear. In the absence of any other explanation, it would conclude that none of the persons in Court had any different recollection of the matter than that of the appellant. But we are not prepared to follow that course here because all parties approached the matter as if it were a case where a party was seeking to lead fresh evidence. The initial question was whether the appellant should have been allowed to do so. If leave were given, then the Court would have had to make directions for further evidence to be filed. It follows that, if there were nothing else, we would have been inclined to give each party leave to put on such further evidence relating to the matter as they might be advised and, if there were any such evidence, to put the matter back in the list. In the circumstances of this case, however, that course is not appropriate because of the appellant's firm statement to us that on no account would he accept a new trial. He wanted the matter over once and for all by the determination of these appeals. It is impossible for this Court to give him that relief if the ground of relief is apprehended bias. The only outcome can be a new trial which the appellant has eschewed. If the Court were to find apprehended bias, the consequential orders would be the setting aside of the existing judgments and an order that each of the matters be retried. The appellant would thus lose the benefit of the judgments and, if he did not avail himself of the right to a new trial for 18 UNREPORTED JUDGMENTS which the orders would provide, the matter would be left in a state where the respondents could move for judgment on the ground of non-prosecution of the appellant's case. The reason why that is the only possible result is that a finding of apprehended bias would vitiate all the trial Judge's findings, particularly those relating to the appellant's credit. Most of his Honour's critical findings are in that category. The appellant's credit was the critical issue in the case. If the judgments are set aside for apprehended bias the findings would go. But there would be nothing to replace them. We cannot make findings about the various matters because we have not seen the appellant in the witness box. The appellate process does not permit us to sit for the purpose of hearing the appellant's evidence. The only course, if apprehended bias were established, is a new trial in which the matters would be heard afresh and findings made again. The matter would be before a different Judge and the findings might be favourable or adverse to the appellant. If it were not for the vehement statements in the appellant's original submissions and in his affidavit of 20 June 1997 about a new trial, it may have been appropriate to publish reasons and put the matter back into the list, not only for the purpose of giving the parties leave to lead further evidence, but also to emphasise to the appellant the impossibility of giving effect to his submission on apprehended bias without ordering a new trial. But his submissions and evidence in this regard are adamant. Under a hearing, "Please No New Trial', used both in the original submissions and in his affidavit, the appellant said, amongst other things, that in his notice of appeal he had contended that there were serious and weighty reasons why a new trial ought not be ordered. One of the reasons for this was the very high cost of litigation about which, of course, there can be no question. He set out the amounts which had been paid to his solicitors for counsel's fees and said the notion that the Court might order a new trial filled him with 'utter dread'. He added, 'My health, both mentally and physically, will suffer severely if I have to face a new trial'. We have so far approached the matter as one in which the reader might infer from what has been written that we have formed a provisional view that the judgments were affected by apprehended bias. That is not the case. Rather, what we have tried to do is to demonstrate that, if the matter were to be pressed, the parties would have to be given an opportunity of leading any further evidence that they wished to lead,thus involving further costs and delay and, more importantly, that the most the appellant could achieve, if he were successful, would be a new trial. We emphasise that no other result would be possible. It is proposed now to express some views on what the likely position would be if the evidence were left as it is. The evidence would then consist of: (a) the appellant's evidence of what occurred on 30 November 1994. That is not a matter he can rely on because of his own evidence that he specifically instructed his counsel not to make an application that his Honour disqualify himself in respect of this matter; (b) the appellant's evidence of statements made by his Honour on 10 April 1995. That is the central point of the application and we will say more of it in a moment; (c) the appellant's evidence of statements made by his Honour concerning the inability of counsel for the respondents to 'toss' the appellant during his cross-examination; URACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA ahé Sheppard AJA) It is emphasised that the statements about his Honour's conduct of the trial in the grounds of appeal are not supported by any evidence and, for that reason, are not relevant to be considered. It follows that there is nothing other than what (if anything) transpired on 10 April 1995 and the statements about 'tossing'. There is of course the transcript of the proceedings. The appellant mistrusts it because of alleged omissions from it. But, assuming the words attributed to his Honour were used by him, what he said on that isolated occasion would need to be considered in the context of the overall conduct of the trial. The general course of the trial would be of critical importance. The only way of making a judgment about the way the trial was conducted is by a general consideration of the transcript. It may or may not be thatwords have been omitted from it. But it nevertheless provides reliable guidance as to the fairness or otherwise of the way the proceedings were conducted. It needs to be understood that the trial process involves much testing of witnesses. Their reliability and credibility will often be in serious question. That was so in this case. The appellant's credibility was at the heart of the proceedings. Those subjected to lengthy cross-examination in a case such as this often find the experience stressful and exhausting. Unfortunately, that is the nature of the process. Counsel cross-examining a witness must act fairly. Unfair cross-examinations will be controlled by the judge. But cross-examination does not become unfair simply because of its hostility. As a judge, one often has great sympathy for a witness under pressure in the witness box, but experience teaches that the process is a valuable tool in aiding a court to determine whether to accept or reject a witness's evidence. Judges are required to bring to the cases which they try an objective mind and a detachment from the proceedings. A phrase often used is 'judicial calm'. Judges must, and must be seen to, stay out of the arena and remain above the conflict. Nevertheless, they need to be firm in the control of the proceedings before them, and they need to see that trials are conducted according to law. Litigants must be prepared to abide by the rules and practices of the court in which they bring their cases. Often litigants in person will not understand the purpose of rules and practices which have been in force for a very long time. The rules relate to procedure and to evidence and are made either by parliaments, judges or rule committees. There are frequent revisions of these rules undertaken and changes are made regularly. Trial judges are bound to observe these rules and to conduct trials in accordance with them. If a judge does not control a trial so that it is conducted within the confines of the Court's procedures as required by law he or she will commit error which may be the subject of a successful appeal. All trial judges are conscious of this. So, things are often said in court by judges which upset litigants in person and sometimes parties who are represented. This is because they cannot understand without explanation the purpose of what is beingdone. Judges must also be fair to both parties. Their approach must be balanced. Sometimes parties may feel disadvantaged by what appears to be a favouring of one party over the other. But more often than not this will be due, not to the unfairness of the judge to the party who feels disadvantaged, but to the fact that the case is not going well for that party. The appellant plainly had a problem understanding why he was not allowed to add what he regarded as explanations to some of his answers to questions. This emerges from the transcript. The fact that his counsel could re-examine him after the cross-examination was over in order to explain matters that had not been properly explained in the course of the cross-examination did not appease him. 20 UNREPORTED JUDGMENTS That was so despite his counsel's statement in the run of the trial that, before he re-examined the appellant, he would seek an adjournment in order to confer with him about the re-examination, a course which is commonly followed. His Honour was well aware of the appellant's dissatisfaction with him as a Judge. He raised the matter directly in an exchange which took place on the fourth day of the trial, 14 March 1994. The trial had proceeded on 26, 27 and 28 October 1993 and had had to be adjourned. His Honour had been assured by both counsel that the trial would take no longer than three days. As not infrequently happens, their estimates, though given in good faith, proved inadequate and the trial ran on. Other commitments which his Honour had made it impossible for him to come back to the matter until 14 March 1994. What occurred on that day arose out of a question asked in cross-examination and the answer to that question. We set out the question and answer and the discussion which then followed: Q: Are you claiming any damages in addition to those that you claimed on the last occasion you were before this Court in October 1993? A: [have asked — this is aggravated damages — this is what I have done — I have asked my lawyers to take action because I am a victim — I have asked my lawyers to take action in recouping costs in this matter because I am the victim of three accidents, I was hit, I never hit anybody, and I am being subjected to prolonged and torturing cross examination here and I feel that I am being abused. I am not being allowed to answer fully my answers andwhat will emerge eventually in this case is not the full truth because I am not given an opportunity to answer in full as I have sworn to do. My counsel will eventually re-examine me but he is not perfect and I don't expect him not to overlook certain matters. I will not remember what I had in mind to answer when I was in cross examination. His Honour: Are you suggesting that this court has improperly dealt with your case — is that what you are suggesting, sir? A: I am not suggesting that. Q: I thought you were quite clearly in that long winded answer you just gave about not getting justice in this court? A: No, I am not — Q: No, just a minute, is that what you are suggesting? A: No. Q: What are you suggesting? A: I am suggesting that I have not answered the question put to me in cross examination fully. Now, partly I have not done so because there is confusion in my mind of what is precisely for me to say. Now, it may well be that certain of my answers would have been more than admissible, but because I am not given an opportunity to answer in my own words then the court will not have before it the full import of the evidence. His Honour: Well, Mr Neil, I regard this as a very serious allegation on the management of this case and it is regarded as a personal reflection upon myself by this person. I do not see why I should have to put up with that for one moment, and I won't. Neil: I think the burden of what he was saying did not in any way reflect on your Honour. His Honour: Until it comes to a question of appeal. Neil: I didn't understand him from what he said to be in any way concerned about your Honour's role in the matter, but rather he feels for some reason or another he has not been able to fully express himself in his answers to Mr McDonald. What I would be proposing, when my friend has finished cross examination, is to take instructions on re-examination so I don't leave anything out when I re-examine him. I am sure he does not mean any reflection upon your Honour whatsoever. His Honour: I think he may well — what are you saying, Mr McDonald? I don't suppose it is a matter for you. I am not going to be insulted by anybody. URACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA afd Sheppard AJA) McDonald: My personal perception was that I was included within the answer, as was your Honour, quite frankly. That was my understanding of what he was saying. His Honour: You were included? McDonald: That I was included in the answer that he gave to the extent that I would not let him finish. On occasions in the transcript over the three and a half days that have elapsed the witness has been asked to answer the questions and he will be re-examined at the appropriate time by an experienced Queens Counsel. So, that was my understanding of what he said. His Honour: That is my understanding of it, Mr Neil, quite clearly a reflection I think, upon me, because I had asked him to not advocate his own case and to answer the questions and he has made a direct reflection upon the Bench. I don't see why I should continue to hear this case. I will adjourn for a few moments and you can think about it. Neil: Can I take instructions about it? His Honour: Yes. SHORT ADJOURNMENT Neil: The plaintiff has informed me that he has absolutely no concerns about your Honour's conduct of the case at all and he meant no disrespect whatsoever and he would wish to say that to your Honour. His Honour: That may be so, but the comments he made seem to reflect quite clearly on the way the case was being conducted — abuse, not being allowed to answer fully. No, I can see all sorts of problems arising. There was an implied criticism of me. What happens if he gets a verdict, I do not say he won't, that does not suit him, the next thing we will be up in the Court of Appeal and I will be blamed, quite clearly I will be blamed. Further discussion ensued. His Honour eventually said: His Honour: Well, in the circumstances somewhat reluctantly I will proceed with the matter, but if there is any more disturbance that will be the end of it. So, you had better tell him, Mr Neil, that I won't put up with any sorts of comments from him, or anybody, that reflect upon my integrity or the integrity of this court. You had better make that very clear to him. In his principal judgment his Honour made it clear that he was prepared to withdraw from the case at that stage if it were apparent that the appellant objected to his sitting. As mentioned, the appellant said in his affidavit sworn on 20 June 1997 that, in about December 1994, after his Honour had said that he would reopen the hearing, his counsel — we gather Mr Neil — had suggested that disqualification of his Honour should be sought. The appellant said that he refused 'because I did not want to go through the trauma of a new trial'. So there were two occasions, one on 14 March 1994 and the other in December 1994, on which the appellant had considered with his counsel the question whether his Honour should be asked to disqualify himself. On both occasions the appellant made a conscious decision not to make such an application. On the first occasion he did so notwithstanding contrary advice from senior counsel. Whether an application would have succeeded at that stage would have been a matter for his Honour but, for reasons earlier given, it may not have been successful. A possible criticism of his Honour's statements in the passage which we have quoted from the transcript of 14 March 1994 is that his Honour reacted oversensitively to what the appellant had said in the answer given in cross-examination concerning his statement that he was not being allowed to answer fully questions asked of him so that what would emerge eventually in the case would not be the full truth 'because I am not given an opportunity to answer in full as I have sworn to do'. He knew at that stage that his counsel could 22 UNREPORTED JUDGMENTS re-examine him for the purpose of his making explanations if they were relevant to his evidence. He referred to that matter in what follows after the statement to which we have made reference. Criticism which we think may be levelled at the way his Honour dealt with the matter is that, instead of regarding what had been said as a personal slight to him, he might have been better advised to have endeavoured to explain to the appellant what the rules required of both the witness and the judge. It is a pity that this was not done, but in the light of the totality of the evidence given by the appellant about the matter and the nature of his claims, we do not think that that could have made any difference. In any event, as we have mentioned, the incident which took place on 24 March 1994 is not the subject of any complaint by the appellant in this appeal, if for no other reason than because he, through his counsel, requested his Honour to continue to hear the matter. We do not pretend to have read every page of the appellant's cross-examination, but have read a good deal of it and glanced through other parts of it. The overall impression is that the cross-examination was not unfair. Certainly it extended over a lengthy period and would have put the appellant under pressure. That is understandable in the light of the fact that the respondents were facing claims for economic loss which, as we subsequently show, exceeded $4,000,000 in a situation in which there had been three collisions, one of them minor in its impact and two of them, the first and the third, no more than moderately severe. Indeed his Honour described the third accident as minor but his treatment of itsuggests that it was more severe than the second accident which was plainly minor in its impact on the appellant. Counsel had a duty to his clients to do his best to resist the claims. The cross-examination, taken as a whole, is not peppered with interruptions by his Honour who remained silent for most it. On occasions when he did intervene, he did so to ask for explanations rather than put any point of view. There are occasions when he did put matters quite strongly to the appellant but this usually occurred after the cross-examiner had already made the point in his Honour's questions. Here and there, there are objections to questions asked. So far as we can see his Honour's rulings on the objections were even handed, some being upheld and some not. Furthermore, when counsel for the appellant came to re-examine him on 15 March 1994, the fifth day of the trial, he did not seek an adjournment (perhaps because there had been the intervening period between 28 October 1993 and 14 March 1994 when the hearing resumed). His re-examination of the appellant occupies less than seven pages of the transcript. As his Honour remarked, counsel for the appellant is a senior member of the inner bar well experienced in trial work. The inference is that counsel himself did not consider the cross-examination to have exceeded proper bounds except here and there when he objected, either to questions or to lines of questioning. Some of these objections were upheld. What emerges from all this is that, at least so far as the transcript discloses, there is not revealed in any general way the hostility and bias on the part of his Honour which the appellant contends was present throughout the trial. His Honour thought that the appellant resented being asked questions designed to test the accuracy and reliability of his evidence. The appellant thought that his version of events should be accepted at face value. His Honour was justified in reaching this conclusion. UACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA aa Sheppard AJA) An illustration of the appellant's attitude was his initial refusal to produce his income tax returns. Originally, he relied on the privilege for which s 16 of the Income Tax Assessment Act 1936 (Cwlth) provides. But a plaintiff in a case such as this will willingly produce income tax returns in order to establish his case unless, perhaps, there is some reason other than an anxiety for privacy, which persuades him that he ought not do so. There is evidence that the appellant was reluctant to produce his income tax returns to his accountants or his solicitors. They were eventually produced but most unwillingly. In the course of his evidence, the appellant mentioned his aversion to producing income tax returns to bank managers from whom he was seeking financial accommodation. At least on one occasion the accommodation was not forthcoming. The evidence does not reveal whether this was because of his failure to produce financial records, but the inference is open that this was the case. Whilst we are dealing with the general conduct of the trial, it is appropriate to mention the cross-examination of the appellant on his affidavit sworn on 13 December 1994 filed in response to his Honour's remarks of 30 November 1994. The cross-examination took place on 10 April 1995 when the hearing resumed. We do not set out the detail of it but the totality of it plainly establishes that the appellant's attempt to explain statements he had earlier made in affidavits filed in other proceedings and in these were not at all convincing. His Honour does not refer to this matter in his judgment, but the cross-examination provides ample support for the course his Honour eventually took when he decided that he should reject the appellant's evidence. It may be noted also that, whatever the criticisms the appellant may have had earlier in the proceedings concerning his inability to make explanations, he could not reasonably have had any such concern about the cross-examination conducted on 10 April 1995. More than once he was expressly invited to explain his answers. Such explanations as he gave were, objectively speaking, no explanations at all. That was because the appellant could not explain away the conflict between his evidence in other proceedings and his evidence in these. The two could not stand together. Having reflected on the matter, we have reached the conclusion that whatever may have transpired on 10 April 1995, this is not a case where it was established that his Honour's decision was affected by apprehended bias. The appellant's complaint of a hostile attitude and environment in the court room is not made out. The transcript does not reveal it. Nor do his Honour's judgments to the detail of which we have yet to come. Certainly the appellant was required to answer questions which were asked him, and not to make statements, which he may have thought were explanatory, but which were not really part of the answer. In the passage cited concerning the reference by his Honour to a slight to him, we think that he did react oversensitively and, if what transpired on 10 April 1995 were as the appellant claims it to be, we would make the same remark about his Honour's reaction. But, from time to time, judges do make these remarks. The language used may not be as fortunate as it could have been but judges quite rightly are concerned to ensure that there is no reflection in the course of a case upon a court's standing or integrity. That explains why remarks such as were made by his Honour on 24 March 1994 are sometimes made. It does not, however, excuse them. But such criticism as we have of incidents of that kind ought not be allowed to control the ultimate conclusion in relation to bias. It is the overall substance of what occurs that is important. In this case we have detected no matter either in the course of the trial or in the two judgments which would give us concern about his Honour's objectivity and judicial approach to the matter. 24 UNREPORTED JUDGMENTS That is so notwithstanding some comments critical of his Honour's conduct of the matter which we have earlier made. That does not mean that his Honour's principal judgment does not contain remarks and findings adverse to the appellant. It does. His Honour took an adverse view of the appellant as a witness. He was obliged to make findings accordingly. He was obliged also to express his findings in appropriate language. He was also obliged to give reasons for those findings. Undoubtedly, the appellant finds many of his Honour's statements offensive. He resents them. But, if what his Honour has written is looked atobjectively and not subjectively through the eyes of the appellant, it will be found that his Honour's treatment of the appellant has been fair although firm. The submissions based on apprehended bias should be rejected. Fresh Evidence: The matters with which we have so far dealt are matters which, either specifically or generally, go to the question of apprehended bias. They do not go to any question of the leading of fresh evidence. There are some other matters upon which the appellant relies which, with one exception, are correctly described as matters which fall into the category of fresh evidence. They are dealt with in his affidavit of 20 June 1997. The items fall under a number of headings. We deal with them in the order in which they appear in the written submission. The first relates to 'Physiotherapy to Neck and Back'. The point which the appellant seeks to make under this heading is that his Honour criticised his evidence and referred to his symptomatology as bizarre. His Honour said that, when seen by Dr Seaton in October 1993, he said that he had had a severe episode of neck pain in May of that year which physiotherapy had made worse and which resulted in his developing hyperaesthesia in the left leg. His Honour said that no explanation had been offered as to why having physiotherapy to his neck should have affected his left leg and commented that this was but one example of the many unexplained bizarre symptoms complained of by the appellant and unsatisfactorily attributed to the injuries he received. The appellant in his affidavit said that his Honour was incorrect in this respect because he had had physiotherapy to his back as well as to his neck. He referred to doctors" reports which are already in evidence. That raises no problem. The matter can be relied on as a ground of appeal on the material already before the Court. But, by way of fresh evidence, the appellant seeks to lead the evidence of a physiotherapist, Ms Egan, and the evidence of one of his treating general practitioners, Dr Teo. He said that Dr Teo wrote a referral to Ms Egan on 6 April 1993in which he referred the appellant for physiotherapy to his neck and back. The referral is annexed to the affidavit. A statement by Ms Egan dated 31 July 1995 confirmed that the appellant received physiotherapy treatment to both cervical and lumbar spines from 8 April 1993. In our opinion the appellant ought not be given leave to rely on the fresh evidence which he seeks to lead. He fails on two grounds. He has not shown that the evidence was not available at the time of the trial, nor has he shown that the receipt of the evidence would have been likely to have made a difference to the outcome of the proceedings; see Quade (above). The next matter upon which the appellant wishes to seek leave to lead fresh evidence is to tender a report of Dr James Grady, his psychiatrist, dated 21 February 1995. The report was tendered before his Honour but he rejected it. The appellant said that the report was tendered because of its relevance to his claim for aggravated damages consequential on the effect upon him of the conduct of URACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA a@€ Sheppard AJA) his cross-examination and the trial and the unduly prolonged proceedings which, by then, were in their 17th month. The appellant said that it appeared that his solicitors served the report sixteen days before the scheduled hearing rather than twenty-one days as stipulated by the Rules. Nevertheless, his Honour had a discretion to accept or reject the report. This is not a case of fresh evidence. It is a case where evidence sought to be led at the hearing was rejected. The appellant is entitled to rely on a ground of appeal based upon this rejection. It is convenient to deal with the matter as a ground of appeal here rather than leave it until later. The report concentrates upon complaints made by the appellant about stress occasioned by his cross-examination. He was mindful that he had taken an oath to tell the truth 'about which he is meticulous and precise', yet was asked complex questions which to his mind did not allow a simple yes/no answer which would be a true and satisfactory answer. He said he was continually asked to furnish a simple answer. Particular instances of this are not given and we have found none although, of course, we concede that our own reading of the transcript has not been exhaustive. Undoubtedly the appellant wasasked not to add explanatory material to his answers but as to whether he was required at times to give a 'simple yes/no' answer we are not sure. In any event he knew all along that his counsel would have the opportunity of re-examining him and that explanations, if they were relevant, could then be given. Fear that answers he was forced to give were imprecise and not truthful because he was not allowed to expand on his answers to explain and qualify them is something about which the appellant claims to be depressed. We have earlier said what we think generally about the cross-examination and expressed the overall view that we do not think it was unfair. We have referred also to the fact that, inferentially, that must have been the view of counsel for the appellant. It is appropriate to refer to Dr Grady's conclusion to his report in which he said that the appellant's mental disturbance seemed to be taking on more of a paranoid than a depressive 'flavour'. Some of his interpretations of incidents regarding supposed surveillance (by private investigators), whether or not he was actually under surveillance, verged on the bizarre, particularly one about his bank manager being put up by an insurance company to telephone him. Dr Grady continued, 'I feel he is not far from decompensating into a paranoid psychosis where the suspicions he feels assume true delusional intensity and quality'. He also said that it seemed that the appellant had suffered quite severe anxiety under cross-examination and added that, as a man with a quite extreme obsessional compulsive personality, rigid and uncompromising, with an over-determined need to give his evidence in line with his own standard of accuracy, he felt the cross-examination was depriving him of control over his capacity to do this. Dr Grady said that the anticipation of further cross-examination and the further cross-examination itself if the appellant continued to experience it as he already had would be sources of continuing anxiety. He said that the development of a paranoid condition was evidence that the appellant was under extreme pressure from the anxiety aroused by the continuing litigation. He said that it would be greatly in hisinterests to bring the case to settlement as soon as possible. He also thought that the appellant should have psychiatric treatment. Dr Grady's report accepted, as medical practice required that he should, the history that he had been given. But this was a hard fought case and the principal issue was the credibility of the appellant. His Honour did not believe him. For reasons that we will give, it is our opinion that the conclusion reached by his Honour was well open to him. Not to put too fine a point on it, he regarded the 26 UNREPORTED JUDGMENTS appellant as dishonest. He had made dishonest claims. If the doctor had been asked to assume that to be the case, it might be that, upon that assumption, he would have expressed a different opinion about the appellant's psychiatric condition. The next matter is headed 'Reporting of the 1980 Accident'. The appellant says that his Honour wrongly said in his judgment that he had not informed his employer, the Water Board, or his doctors, about the 1980 accident. His Honour said that the appellant had dealt with the second accident 'with secrecy'. His evidence was that he did report it both to his employer and to his doctors. But as he points out, the 1980 accident happened on 8 March which was a Saturday. As he said, that would be out of his employer's concern. That, so he said, explained why there was a lack of documentary evidence in the employer's records. The appellant said that he had now found 'hard evidence' which he had discovered since the trial in the form of a letter from the medical branch of the Water Board. A copy of the letter is annexed to the affidavit. The letter is quite inconclusive. It was a form letter which contained a statement to the effect that the medical branch had been advised that 'you have reported that you suffered an injury on ... ". The date was not completed. The letter asked the appellant to attend for examination by the Board's Medical Officer on 30 June 1980. The letter is undated but appears to have been written about the latter part of June because the last statement in the letter asked the appellant to disregard the letter if he had attended the medical branch since 23 June 1980. The accident happened on 8 March 1980, more thanthree months before 23 June 1980. There is no statement in the letter as to the date of the injury which is alleged to have been suffered. The letter is therefore unhelpful to the appellant's case and ought not be received in evidence. In reaching that conclusion we bear in mind the appellant's statement that, apart from the accident of 8 March 1980, he was not involved in any other accident or injury in that period of time. The appellant has also produced a letter from the medical branch of the Board which referred to a memorandum of 14 May 1980 and a certificate from Dr Nicholson containing a recommendation that he use an infra-red lamp. The letter from the Board is dated 21 July 1980. It simply says that the Board had received the appellant's memorandum of 14 May and the certificate from Dr Nicholson in which he had recommended the use of an infra-red lamp. The Board expressed its willingness to reimburse the appellant for the purchase price on production of a receipt. Again, the letter is inconclusive to say the least. If anything, it is against the appellant's case because one would not expect the Board to pay for the cost of treatment necessary as a consequence of an accident for which it was in no way responsible. We would therefore not permit the appellant to rely upon the letters he wishes to use in support of his case about the reporting of the 1980 accident to the Water Board. The next matter is headed 'On the Way to the House'. The appellant wishes to tender a copy of a map from a street directory in order to show that part of Ms Bowman's evidence was incorrect. This evidence was available to the appellant at the trial in the sense that due diligence would have revealed it if it had been relevant. He was present in Court when Ms Bowman gave her evidence. Street directories are readily available from the Law Courts Library if need be. We would reject the application insofar as it depends upon this matter. Ms Bowman was the driver of the car involved in the second accident. His Honour accepted her account of what occurred and rejected that of the appellant. The decision of the High Court in Devries v Australian National Railways UACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA afd Sheppard AJA) Commission (1993) 177 CLR 472 indicates the course we should take. There, Brennan, Gaudron and McHugh JJ said at 479: More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against — even strongly against — that finding of fact. It the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was glaringly improbable'. In footnotes, reference is made to earlier decisions of the Court in Jones v Hyde (1989) 63 ALJR 349 and Abalos v Australian Postal Commission (1990) 171 CLR 167. It is thus not open to us to disturb his Honour's finding because his Honour had the benefit of seeing both the appellant and Ms Bowman in the witness box. Ms Bowman's evidence conflicts sharply with that of the appellant in two respects. Firstly, he claimed that the accident was severe. She said that it was slight. He claimed that upon impact his seat collapsed and he ended up lying on the floor of the car. Ms Bowman denied that any such thing took place. She said there was no damage to the seat. She also said that, after the accident, the two of them — they were having an affair at the time — went to an empty house owned by the appellant where they spent several hours not leaving until 2:00 the next morning. In the course of the evening, the pair had intercourse. Inferentially, Ms Bowman's evidence was that he had no difficulty in that regard. She said the two had an association which lasted for some years and frequently had intercourse during this time. She said that he never complained of pain in his back, his neck or his arms. That evidence was given in relation to all activities and was not restricted to his ability to engage in intercourse. Ms Bowman said that the appellant never made any complaint about his level of physical fitness. She thought that he was "very fit'. Ms Bowman's evidence was accepted by his Honour. Thefinding must stand. The production of the street directory relied upon by the appellant could make no difference to the outcome of the proceedings. The next item is entitled "GIO Authorised Repair Bill'. The appellant wishes to tender a release relating to the cost of the damage suffered by his car in the third accident which occurred in 1982. Repair bills for damage to the car are in evidence. In our opinion the Court cannot be satisfied that the appellant exercised due diligence in searching for the release prior to the hearing. The evidence ought not be admitted. In any event, the evidence could only be of the most marginal relevance. The next heading is entitled 'Papers Cited by Dr Mellick'. Dr Mellick was called on behalf of the respondents. His report is dated 8 February 1991. In the report he referred to a paper and a journal article. The appellant said that Dr Mellick did not provide a comparative analysis of the two papers and the appellant's medical evidence and symptoms. He said that the act of citation tended to lend authority to the doctor's opinion which, on perusal of the paper and article, was neither deserved nor justified. The appellant now wants to tender the paper and the article. These, being referred to in the doctor's report, could have been called for at the hearing. They were not. That was no doubt a decision made by senior counsel. In those circumstances it would be quite inappropriate 28 UNREPORTED JUDGMENTS to allow the appellant now to tender the two papers or to entertain the analysis which the appellant has undertaken. To do so would be contrary to the decision of the High Court in Quade (above). The next matter is entitled 'Jobs Folder'. The appellant said that he gave evidence that his jobs application folder was in the court room. He said that it was in the court room for the first few days of the hearing and was made available to counsel for the respondents. The folder was not tendered in evidence. The appellant complains about a portion of his Honour's judgment in which he referred to job applications and added, 'if in fact he made any such applications'. The appellant said that, if his lawyersought to have tendered the folder in evidence, the appellant should not have to suffer from that omission. He also said that, on the evidence and on the facts stated, it was unforeseen and unexpected that his Honour would express doubt that the appellant had in fact made such job applications. This is the very type of problem which the High Court in Quade was dealing with in the passage earlier quoted from its judgment. It may seem hard on litigants if matters are omitted to their detriment as the consequence of an oversight by their legal representatives, but they are bound by their legal representatives" conduct. Of course, one does not know what the facts of the matter are and the appellant's former legal representatives may have a ready answer to any possible criticism based on an apparent omission by them. But whether or not that be so, the law is that, in the interests of the conclusion of litigation and in fairness to the respondents it would be quite wrong to allow the appellant now to tender the jobs folder. It should be rejected. There is another reason why this conclusion should be reached. It ought to be remembered that the appellant's case was that the accidents had made him totally unfit for work. That was the basis of his claim of over $4,000,000 for future economic loss. A person who makes a job application presumably implies that he is fit for the job he seeks. The appellant's case is that he was not fit for work as a consulting engineer. Any job applications were therefore irrelevant unless his case is false. An error by his Honour concerning the matter complained of could not have had any effect on the outcome of the case. The next matter is entitled 'Resignation from IE AUST'. This matter relates to a statement in the judgment that the appellant had resigned from the Institution of Engineers Australia in 1974. In fact, so the appellant said, he resigned in 1984. He seeks to tender a letter confirming this to be the case. We would reject it, firstly because it would have been available, if due diligence had been used, to theappellant at the trial, and secondly, and more importantly, because any misunderstanding over the date of the resignation could not make any difference to the outcome of the case. There is then a heading 'Protraction of Proceedings and Delay'. In this part of his affidavit the appellant is concerned about criticisms made of him by his Honour in relation to delay and prosecuting the proceedings. What the appellant wishes to do is to tender in evidence what he describes as 'the case files of the Court in the Common Law Division' and 'the case file of the Court of Appeal'. There is no need for him to do this if he wishes to rely upon the case files. Those files are part of the Court's record in these matters. They are notionally before the Court in any event and it is not necessary or appropriate for them to be tendered in evidence. No question of leave to lead fresh evidence therefore arises and nothing more need be said about the matter except that reference to the case files is unlikely to assist in establishing the real cause of delay in these matters. UACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA af Sheppard AJA) There is next a heading 'Mr Farrell'. The matter relating to Mr Farrell is an aspect of a longstanding dispute which the appellant had with the Water Board over numerous matters. This is dealt with at length in the principal judgment and is a matter to which we will come in due course. It is not entirely clear what additional evidence the appellant wishes to lead in relation to Mr Farrell, but it seems that the appellant says that the basis for his criticism of Mr Farrell to the Board, which his Honour was disinclined to accept, was able to be verified by reference to Mr Farrell's service file, the records of the Water Board, or the transcript of proceedings in the Equal Opportunity Tribunal. It would seem that he wishes to tender those records or at least some of them. It is clear that, in the way that the matter proceeded, the appellant before his Honour endeavoured to raise issues arising from problems he had with the Water Board in these cases. It may be that the matters did have a tenuous relevance to his claim for damages in the sense that he was seeking to explain the circumstances under which his employment with the Board was terminated in September 1986. For present purposes, the short answer to hisapplication is that he is seeking to lead evidence of the contents of records from the various bodies to which we have referred. His application must fail because, again, the matter, if considered relevant, could have been overcome by the production of the various records at the trial. The requirement to show due diligence to find the evidence has not been met. The fault, if there be one, may be that of the appellant's legal advisers but he is bound by their conduct. Accordingly, it is not a case in which the appellant should be given leave to lead the evidence to which he refers. There is then a matter entitled 'Surveillance'. In the course of his remarks about this matter the appellant said that he is haunted by thoughts that he is under surveillance wherever he happens to be. He considers that his privacy is being invaded and abused. Earlier he said that he believed that he was constantly under surveillance and had been for the last twenty-two years first by the Water Board and then by the GIO. He referred to incidents which led him to think that he was being tricked to engage in physical activity so that photographs of his doing work which he claimed not to be able to do were taken. One of his heads of damage is the way in which the respondents conducted these cases including the matter of surveillance. The matter is not new. It was raised at the trial. What he appears to be about is to endeavour to lead evidence to show the extent of the surveillance that was carried out. Again, that evidence would have been available at the trial if it had been sought to led, but it was not. The application to lead fresh evidence of these investigations should be rejected. Finally, there is a heading 'Facts in Square Brackets in Submissions'. In relation to this matter, the appellant said that during cross-examination, he was not allowed to answer the questions put to him fully. In consequence, relevant evidence did not emerge. He said that the facts enclosed in square brackets in his written submissions on the main questions were true and correct and were "composed together in a document annexed hereto and marked (X)'. Annexure (X) contains a number of statements in square brackets, some of which are statements of fact and some of which constitute submissions. Insofar as thedocument contains statements of fact, these are matters upon which counsel could have sought to re-examine the appellant at the end of his cross-examination. There is no basis upon which they can be treated as properly the subject of an application to lead fresh evidence. The application in this regard should be rejected. 30 UNREPORTED JUDGMENTS That concludes our consideration of the appellant's application to lead fresh evidence. In the result, the application is refused. The Principal Judgment and Some of the Appellant's Submissions in Relation to it: We turn to the principal judgment delivered on 26 May 1995 and to the supplementary judgment delivered on 5 February 1996. The judgment of 26 May 1995 is most comprehensive. It occupies over 162 pages of the record and deals in detail with all aspects of this matter. In the light of submissions that have been made about apprehended bias and hostility towards the appellant, it ought to be said, in fairness to his Honour, that the judgment represents an objective assessment of the evidence which was before him expressed in measured and conservative language. It contains conclusions adverse to the appellant and remarks critical of his evidence and his claims. One would expect this to be the case. His Honour's task was to judge the cases he had to decide. His decision was adverse to the appellant. Understandably, the appellant objects to the general thrust of the judgment which is highly critical of him. But his Honour's obligation was to make findings of fact and give reasons for those findings. That is what he did. He did so because he thought the appellant's case was false. The question we have to decide is whether his Honour's conclusions are affected by any significant error. At the commencement of his judgment his Honour said: At the outset I should state that whilst I try to avoid making strong comments about litigants who appear before me, I am constrained to say something about this plaintiff. The plaintiff impressed me as being an arrogant and conceited person who never conceded he may have been at fault in the way he has acted. I amalso satisfied he has grossly exaggerated his evidence and his case before me and I find it difficult to accept his evidence unless it is independently corroborated by other evidence. Typical of his attitude is his claim for aggravated damages. His attitude in the witness box was in the main responsible for what admittedly was a long cross-examination. As will be revealed in this Judgement, he deliberately sought to mislead me in order to inflate his damages or to explain away unsatisfactory features of his claim. I should add that the plaintiff has been a litigant of some note, having had actions in the Industrial Commission, the Supreme Court, the Court of Appeal and the High Court and he is fully aware of the requirements of the litigious process. These activities assume considerable importance in my assessment of this man in the light of the complaints he has made. Although those paragraphs appear in his Honour's introductory remarks, they ought not be taken as a sign of prejudgment of any of the issues in the case. What his Honour has really done is to summarise his conclusion, a conclusion which he reached after a close consideration of the entirety of the evidence in the case. Following these paragraphs is a reference to the inordinate delay in the bringing of the actions and a discussion about the blame for this which his Honour plainly rests on the shoulders of the appellant himself. We are not sure that recriminations about the delay are of much assistance in the outcome of the various matters that have to be considered. What we think is important is the objective fact of delay. The first accident occurred on 14 September 1973. The action was commenced in 1979 on a date not specified in the copy of the statement of claim which is in the record. It must have been before 14 September 1979; otherwise the appellant would have been out of time. Thus, a period of almost six years had elapsed before the action was commenced. The second action in respect of the accident which occurred on 8 March 1980 was originally UACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA ad Sheppard AJA) commenced in the District Court. The ordinary statement of claim filed in the matter was filed on 7 March 1986, one day before the expiry of the limitation period prescribed by the Limitation Act 1969 at that time. The action was later removed to the Supreme Court. The third accident occurred on 28 July 1982. The action was commenced in this Court on 30 October 1986, four years after the accident had occurred and almost eight months after the commencement of the action in respect of the second accident. The hearing of this matter was spread over days in 1993, 1994 and 1995. When the principal judgment was delivered on 26 May 1995, almost 22 years had elapsed since the date of the first accident. His Honour was therefore concerned to make judgments and assessments of the facts and circumstances which had occurred over the entirety of that period. The frailty of human recollection is well known. The propensity of witnesses, whether parties or not, to engage, quite innocently, in the reconstruction of past events rather than to bring to bear actual recollection is also well known. The delay, objectively speaking, placed the Court, the witnesses, including the medical witnesses, and the legal representatives at a disadvantage. His Honour was well justified in referring to the question of delay although, in what he said, he was inclined to blame the appellant for it rather than his legal representatives. There may be much to commend this view but one does not know all the facts and, as we say, the objective fact of the extent of the delay is the all important thing. That is because of the difficulty which the Court must have had in making findings about evidence, both lay and medical, after so many years. Furthermore, a plaintiff such as the appellant here would, not unnaturally, tend to attribute every misfortune in his life, every subsequent medical condition, and every setback, in some way to his accidents. That is human nature. Here, of course, there was not one accident; there were three. It is not unlikely, and it seems that it has happened here, that a person in the position of the appellant may well lose the ability to be objective and become obsessed, as Dr Grady suggests, with the evil which has befallen him and for which he blames the entirety of such misfortune as he has suffered in the course of his life since the first of the accidents. The only other thing we wish to say about delay is that it ought not to be thought that, despite delays in the Court's list, these cases could not have been brought on for hearing much earlier than they were if they had been prosecuted diligently. Again, we do not wish to make judgments about whether the matters were prosecuted expeditiously. But there is no way that a case started in 1979 or 1986 would nothave been disposed of by the Court well before 1993, let alone 1995. The delay must have been due to other reasons. His Honour's judgment is conveniently divided into sections or compartments. These are as follows: * the issue of liability in each of the accidents pp 4-16 * an analysis of the medical evidence pp 16-68 * claim for past and future economic loss pp 68-121 * aggravated damages pp 121-122 * other litigation pp 122-148 * claim for loss arising as a consequence of being unable to engage in management of investments pp 148-158 32 UNREPORTED JUDGMENTS * conclusions pp 158-163 Because there is no issue about liability, it is unnecessary to refer to so much of his Honour's judgment as deals with that matter. It is to his treatment of the medical evidence that reference should first be made. His Honour opened his discussion of the medical evidence with the following preliminary statement: The plaintiff's pre-morbid condition was painted in glowing terms in the Written Submissions on his behalf, although he apparently had an ulcer in 1968. He is said to have been in excellent health with the exception of two minor episodes of back pain. He passed a medical examination before he commenced employment with the Board and is said to have engaged in family life and not suffered depression. It is said that is supported by his son's evidence about the traditional, normal family. I have doubts about the idyllic family relationship painted in this case by the plaintiff and his son, at least certainly after the first accident, as I am satisfied he had for a number of years a long-standing, intimate relationship with Miss Bowman who was driving the vehicle involved in the second accident and who gave, in my view, very revealing evidence about his apparent fitness at a time when he complains to me he was suffering considerable physical discomfort. This affair also throws considerable light on his relationship with his wife whom I note although present in court was not called to give evidence.'"'We have earlier referred to the affair which the appellant was having with Ms Bowman at the time of the second accident and to the evidence which there was about the immediate consequences of that accident. His reference to the appellant's relationship with his wife is a reference to evidence given by the appellant that he had a very good relationship with his wife and to her absence from the witness box. In his submissions, the appellant has sought to explain this upon the basis that he did not want her exposed to an ordeal such as he himself had suffered in cross-examination. That is all very well, but we were not referred to any explanation for her absence from the witness box made in evidence. If the explanation had been given in evidence, it would have been necessary for his Honour to make a finding about it and, in any event, to consider whether the proffered explanation provided a satisfactory reason why Mrs Cachia was not called. None of that occurred. Our own view of the matter is that the explanation, if it had been given in evidence, would not have provided a satisfactory reason why the evidence of the appellant's wife was not led. In the absence of such an explanation, the Court was entitled to infer that nothing that Mrs Cachia could have said would have assisted the appellant's case and also that, inferences open on the evidence, might the more confidently be drawn if her evidence might have cast light on the question whether an inference, which was open, should be drawn; Jones v Dunkel (1959) 101 CLR 298. After referring to the large number of medical reports in the matter, his Honour said: The plaintiff has complained of a whole range of symptoms over the period since his first injury in 1973, a history of some 20 years. He alleges that before the happening of the second and third accidents he had recovered completely from the injuries suffered in the first accident. An examination of his complaints to his treating doctors certainly does not support that view. A further problem going to his credibility is the secrecy with which he dealt with the second accident. As I have stated earlier, I am satisfied that at the time of the accident he did not inform his employer or his medical advisers that he had suffered an accident when in a vehicle driven by Miss Bowman. There are two reasons, | infer for that. Firstly, he did not want anyone to know he had been in a vehicle driven by Miss Bowman and, secondly, that accident, in his view, would not have been compensable in that it did not arise out of or in the course of his employment with the Board. He claimed only that his injury had been exacerbated leading the doctors and his URACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA a8@ Sheppard AJA) employer to believe the exacerbation resulted from the original accident, clearly deceitful. This is one of the many matters that makes his credibility very suspect. In my view, an examination of the medical reports, particularly those of his treating doctor, Dr Douglas, leads me to conclude that the major issue I have to determine in the light of the medical material is whether I can accept him as a truthful raconteur of his complaints.""'Judges hearing these cases often complain of the numbers of medical reports and the extent of the medical evidence called in a case. Here, because of the passing of so much time, there was ample opportunity for proliferation. His Honour said that there were 32 reports and six medical certificates from the appellant's treating orthopaedic surgeon, Dr Douglas. There were three medico-legal reports from Dr Seaton, another orthopaedic surgeon; three psychiatric reports from Dr Grady and one each from Doctors Greenberg and Learoyd. There were two medico-legal reports from Dr Schneider, a consultant surgeon; a report of Dr McGlynn, an orthopaedic surgeon; a report of Dr Grant, a neurosurgeon; and a report of Dr Teo and a number of reports of Dr Krzyszton, both general practitioners. A number of reports were tendered by the defendant. There was one from a psychiatrist, Dr Maguire; two reports of Dr Potter, a rheumatologist; three of Dr Mellick, a neurologist; two of Dr Donaldson, one of Dr Cummine, two of Dr Bentivolglio and two of Dr Barry, all orthopaedic surgeons; two of Dr Power, an orthopaedic medico-legal consultant; a report from Dr Wilcox, a general practitioner in the employ of the Water Board; two reports from Dr Scarfe (apparently not in the record); a report of Dr Somerville, a neurologist; and a report of Professor Jones, a director of rehabilitative medicine. The reports covered a period of twenty years of complaints. A number of the doctors gave oral evidence. These were Dr Douglas, Dr Seaton, Dr Grady, Dr Mellick and Dr Potter. The medical evidence was thus extensive. His Honour's account of the medical evidence is comprehensive. We do not refer to the entirety of the analysis made by his Honour but refer to some of it. His Honour said that Dr Douglas had seen the appellant over a period of 18 years. At no stage did Dr Douglas observe muscle spasm. However, when Dr Seaton was examining the appellant 'in a medico-legal context' in 1990 he noted that the appellant had a very limited range of cervical movement with para-vertebral spasm but with no definitive neurological deficit. He noted that he had no back movement in the lumbar spine at all which, so Dr Seaton said, was due to severe chronic bilateral erector trunci spasm. His Honour noted that Dr Douglashaving seen the appellant regularly over a number of years did not at any stage find that there was no movement of the back at all. The evidence of doctors called on behalf of the respondents was to the same effect. His Honour rejected Dr Seaton's evidence in this respect. This was something which he was plainly entitled to do, he being the trial judge, particularly as both Dr Douglas and Dr Seaton gave oral evidence. His Honour then referred to the evidence of Dr Krzyszton who also gave evidence of muscle spasm. He said that clashes of personalities and attitudes at work and the anxiety that these generated, he believed, exacerbated the appellant's muscle spasm arising from his neck and back disease and resulted in prolonged pain. His Honour did not reject Dr Krzyszton's evidence but he said that the question was whether the muscle spasm which was noted was objective and not subjective. 34 UNREPORTED JUDGMENTS His Honour's discussion of the orthopaedic evidence continues for some pages. We have read it but see no point in recounting the detail of it. His Honour's conclusion is as indicated. One matter that needs to be noted, however, is that Dr Douglas 'conceded' that most of his clinical examination depended on the appellant's response so that the findings were really a record of the appellant's subjective responses. He accepted the disabilities complained of by the appellant on the assumption that the responses were 'at face value'. His Honour said that this was a common theme running throughout the majority of the medical reports, particularly those furnished on behalf of the respondents. His Honour said that, despite the fact that some of the appellant's doctors were prepared to certify him as unfit, they were unable, in his view, to point to any reliable, objective clinical symptoms to account for the 'constellation of symptomatology' of which the appellant had complained on and off over a period of twenty years. His Honour concluded that the medical evidence posed a number of difficulties for the appellant in establishing his incapacity for work resulting from the three injuries or one or other of them. He addedthat, in the light of the view he had formed of the appellant's truthfulness, he was only comfortable making findings in his favour where his evidence was corroborated. His Honour said that there were three steps in the appellant's case. They were, firstly, that prior to the first accident the appellant was symptomless, secondly, it appeared that he had spondylosis ie a degenerative spine, and thirdly, the various injuries initially were soft tissue injuries which aggravated the degenerative condition and as time went on, because a resolution of the symptoms did not eventuate as predicted, some of the appellant's medical witnesses 'postulated' that he had suffered disc lesions both in the cervical and lumbar spines. His Honour said that there was inconsistency in the symptomatology complained of. He said that 'in some ways' the complaints were bizarre. He said that, despite the considerable treatment the appellant had received over a period of twenty years, in the main physiotherapy which he had had at regular intervals, and manipulations, no permanent relief had resulted. At best, according to his evidence, he experienced only temporary relief lasting a few weeks after treatment. There is then the statement about physiotherapy of the neck and his claim that he suffered resultant hyperaesthesia in his left leg. As earlier mentioned, his Honour said that no explanation had been offered as to why having physiotherapy to his neck should have affected his left leg and added that this was but one example of the many unexplained, bizarre symptoms complained of by the appellant 'and unsatisfactorily attributed to the injuries he received'. On the evidence which his Honour had, he was well justified in making that finding. In the light of the documents which the appellant was refused leave to tender, the finding may be erroneous in the result. Indeed that conclusion is open on the basis of documents which were in evidence before his Honour and which he apparently overlooked. Those documents are referred to in the appellant's affidavit of 20 June 1997 filed in support of the application to lead fresh evidence. It follows that his Honour was not justified in concluding that the physiotherapy could not have caused pain in theappellant's left leg because it was administered only to his neck. There remains, however, the question whether physiotherapy did cause him pain. That is tied up with the general question of the appellant's credibility. In any event, there is, as will be seen, so much more in the case, that such error as may be involved in what his Honour said about the effect of physiotherapy in the neck could not have made any difference to the outcome of the case. UACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA a84 Sheppard AJA) His Honour further discussed the orthopaedic evidence, particularly that of Dr Douglas, and said that it was 'a recanting of differing symptoms and no attempt to explain how they relate to the accidents'. His Honour essayed the view that this was because no real explanation of a medical nature could be advanced. His Honour discussed the evidence of Dr Grant, a neurosurgeon, Dr Barry, an orthopaedic surgeon, Dr Potter, Dr Scarfe, Dr Mellick, Dr Donaldson, and Dr Maguire. His Honour said that Dr Potter was one of the most sympathetic, ie to the appellant, of the respondents" doctors. He concluded that there was no permanent incapacity resulting from the motor vehicle accidents. In October 1992 he thought that there was no need for ongoing treatment and that no other diagnostic tests were necessary. He thought there was no value in rehabilitating the appellant because he had no significant functional impairment. None of the respondents" doctors could identify a cause for the appellant's continued multiplicity of complaints. Eventually his Honour said that, if one were prepared to accept the history given to the doctors as accurate, the appellant was leading the life of a semi-invalid. In the light of his other activities during the period that had been disclosed and to which his Honour later referred, his Honour believed that the appellant had deliberately misled the doctors as to his activities. He said that this was one reason why his evidence was unreliable. His Honour referred to the fact that Dr Power concluded that the appellant's presentation was 'dominated by non-organic signs and fabrication'. Dr Power noted that the appellant presented as a fit, well-muscled individual. This was commented on by the other doctors and was contrary to the suggestion of nerve root damage. His Honour said that this accorded with Ms Bowman's evidence of his fitness during her affair with the appellant in the late 1970s and the early 1980s. His Honour noted that her evidence directly conflicted with the appellant's evidence of pain and disability after the 1980 accident. If her evidence be correct, it also conflicted with his complaints of ongoing pain and disability after the first accident in 1973. As mentioned, she thought that he was 'very fit'. That was a reference to his fitness generally during the period of their affair which had begun well before 1980. His Honour's discussion of the medical evidence continues for many pages. It is not useful to recount the whole of his Honour's analysis. His findings were consistently that there was no objective medical evidence to support the appellant's claims as to his disability. Eventually his Honour concluded: I just cannot accept, in the light of all the material presented in this case, that the plaintiff is seriously, physically disabled or that the multiplicity of symptoms have resulted from these accidents. If he has symptoms, in the main they stem from other causes as there are so many problems unrelated to the accidents that account for his symptomatology, and I include in that his disaffection with his superiors at the [Water] Board because of his lack of promotion. I have no doubt he has exaggerated whatever symptoms he may have, both to me and to the doctors, and because of this it is almost impossible to determine the degree of his disability. Despite years of pain and disability in the back and neck, other than the x-ray findings no objective signs have been found to corroborate his constellation of symptomatology. It is to be emphasised the plaintiff has to prove to me that the disabilities he claims are genuine, and in major aspects he has failed to do this. Further, there are many inconsistencies in the plaintiff's versions. I have referred at some considerable length to the many bizarre symptoms referred to in the medical reports that, in my view, are not explained by any physical injury. I refer also to the inconsistencies in his various complaints. It is my view, having considered 36 UNREPORTED JUDGMENTS at some length the medical evidence in this case, that the evidence of the defendant's doctors is to be preferred to that of the plaintiff's doctors. I am satisfied he had long-standing degenerative changes in his spine prior to the first accident and I accept there could have been aggravations of this condition in each of the accidents. The most serious of those was the first accident; the others I regard as rather minor. Accepting, as I do, the defence witnesses called in relation to the second and third accidents, these accidents were minor. I cannot accept the plaintiff's complaints of pain as being an accurate reflection of his physical condition. He has had extensive physiotherapy, and despite spending his time since his dismissal in a sedentary situation such as lying down for 12-15 hours per day, his condition has continued to worsen, a complaint that I find was unsatisfactorily explained by the plaintiff's doctors." Those are critical findings. In our view they reveal no appealable error. Psychiatric Evidence: After some further discussion, his Honour turned to consider the psychiatric evidence. His Honour said that a claim had been made that, as a result of the physical injuries suffered in the three accidents, the appellant was suffering from a severe depression affecting his ability to work. His Honour referred to Dr Grady's evidence. The appellant told Dr Grady that he estimated that he had had six months off work in the time up to 1986 'when he was medically retired' by his employer because he was taking too much time off work. He said that he had been having difficulty with certain aspects of his work, such as climbing ladders to carry out inspections of sites. His Honour said that none of this appeared in the appellant's evidence. The appellant told Dr Grady that he had applied for some 800 jobs and had been rejected. He had felt more depressed and had given up. He said that he was a very ambitious and hard-driving person and well qualified. His Honour did not accept that the appellant had applied for anything like 800 jobs 'if in fact he has applied for any'. That is the passage challenged by the appellant. It was in respect of this that he sought to tender before us the job folder that had, so he said, been in Court but not tendered by his counsel. For reasons earlier given, there is an inconsistency between the appellant's evidence that he was unfit for any work and his applying for 800 jobs. On what he told Dr Grady before the question of job applications was mentioned, he had said that he had had six months off work up to 1986 when he was 'retired' and that he was unable to do site inspection because of difficulty in climbing ladders to carry them out. It was well open to his Honour to reject his evidence about having applied for 800 jobs. We see no error in what his Honour has said. His Honour had taken an adverse view of the appellant's evidence and had said that he would not accept him as a reliable witness except where his evidence was corroborated. Furthermore, counsel for the appellant, so the appellant said, had the job folder and himself could have tendered it if he had thought it would be of assistance to the appellant's case. The fact that it was not tendered suggests that counsel was of the view that it was not helpful. The appellant told Dr Grady that, when he came to Australia in 1964 he set out to build wealth for his family. He spoke about his investment in real estate and his plan to buy at least two houses every year. He said that, to a large extent, his success depended on his capacity to carry out maintenance work on the properties himself. After the first accident he could no longer do this and 'he lost his confidence to invest further'. The appellant said that he was financially secure. UACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA a8a Sheppard AJA) The appellant told Dr Grady that he was moody and introspective; he had lost his capacity to relate to people, had become socially isolated and had become irritable and churlish in the way he dealt with people; he felt alienated from his children and had practically no communication with them. He said that he was either silent or spoke to them abruptly. He had noticed that his wife did not want to accompany him when he went to the Central Coast. He thought that this was because he was such bad company. The appellant said that he and his wife had a very good relationship before the accidents and it had deteriorated since then. Their sexual life started to decline after the first accident and there had been no intercourse at all for years. He had no sexual libido although, his Honour noted, he told Dr Douglas in June 1993 that he was not impotent. His Honour referred to the intimate affair which Ms Bowman and the appellant had had, and said that he thought this affair would have been instrumental in the deterioration of his relationship with his wife. His Honour said that he believed that the appellant deliberately omitted any reference to the affair to Dr Grady and remarked that Mrs Cachia had not given evidence. The appellant told Dr Grady that he slept poorly, woke several times during the night because of back pain and suffered from anxiety dreams. Dr Grady thought that the appellant was markedly depressed and diagnosed the appellant as suffering from a chronic depressive reaction superimposed on an underlying obsessional personality. Because of his background, the appellant had an excessive concern for health and physical integrity, a drive for excellence and recognition in his career, and a drive to accumulate material wealth. Decompensation into depression had resulted from perceived loss of his integrity as a result of the accidents with persistent pain and disability and loss of career through 'medical retirement'. Further, as a result of depression, he suffered a loss of confidence to go on investing in property to amass further wealth. Dr Grady thought that the appellant was bitterly disappointed and guilty that he had no longer, nor had he had for many years, the ability to relate warmly to his wife and children as a result of his depression. Dr Grady thought that he was generally unfit for work because of the severity of his depression. The appellant saw Dr Grady again on 14 September 1993. He complained of headaches four days a week which lasted for about twelve hours. These had no pattern. Dr Grady said the appellant was suffering from chronic depression and that his underlying personality was highly obsessional and rigid with a lot of suppressed anger and resentment against his former employer. His Honour said that he did not disagree with this assessment. The Doctor said that the depression was of moderate severity which was likely to continue to some degree which he felt might be ameliorated by psychiatric treatment. Dr Grady believed that the appellant's depression significantly reduced his capacity for work. He considered it unlikely that he would ever work again. He said that his ability to earn an income, to progress in the Water Board and to invest in real estate had been detrimentally affected by the chronic depression to a large extent which had been a reaction to the physical injuries. Its severity had been determined by his personality type and by his disaffections with his employer over a prolonged period. In the course of his evidence Dr Grady said that the depression was severe. His Honour compared this statement with his earlier statement that the depression was moderate. 38 UNREPORTED JUDGMENTS Dr Grady said that the obsessional personality tended to be meticulous and perfectionistic and to demand a lot of others as well as themselves. His Honour remarked that this was not the sort of personality that one would think would have the ability to manage staff. The doctor said that any imperfection was magnified and in extreme cases catastrophic. Such persons could not tolerate it and, by not being flexible enough, they became anxious and had feelings of failure. The doctor said that this had happened to the appellant to quite a severe extent, although by ordinary standards he had achieved quite a lot. He said that the appellant was unable to stop and have peace of mind and needed to go on working and achieving. His Honour referred to cross-examination of Dr Grady by counsel for the respondents. The cross-examination was largely taken up with questions putting to Dr Grady aspects of the appellant's medical and employment histories which were not mentioned by Dr Grady because they had not been given to him. His Honour concluded that Dr Grady's opinion was unsatisfactory because it was predicated on a misleading history. He said that he rejected his opinion that because of the appellant's depression he would be unable to work. His Honour said that, if he were depressed, it was for reasons unrelated to the accidents but he added, 'I certainly accept Dr Grady's opinion, however, that he has a rigid and inflexible personality, which came through clearly during the course of the plaintiff giving evidence before me'. His Honour's findings were well open to him on the evidence. We detect no appealable error in them and the challenge made to them in this appeal must fail. It is to be observed that, except in one respect dealt with later in his judgment, his Honour did not deal with other psychiatric evidence which was called. We propose to refer briefly to this. Dr Maguirereported to the respondents" solicitor on 25 May 1993. He saw the appellant on 18 May 1993. His report covers some seven pages but we refer only to his conclusion which was that, on his current presentation, the appellant was mildly depressed. His irritability was causing some difficulties with his relationships with friends and family. Dr Maguire thought that he would benefit from ten sessions with a psychologist or a psychiatrist to help him adjust to his 'residual degree of disability'. He said that he believed that the appellant's depression was mild in intensity. It was not associated with impairment of concentration. He referred to the fact that the appellant read a lot and played chess. A loss of concentration was a common complaint with a moderate degree of depression. Dr Maguire said that the depression that the appellant had did not prevent him from enjoying his interests or hobbies so there was no anhedonia (ie a diminution or disappearance of the ability to enjoy pleasure and pleasurable occasions). Another psychiatrist, Dr Learoyd reported to one of the appellant's general practitioners, Dr Krzyszton, on 22 October 1986. It was just after the termination of his employment with the Water Board. 1986 was also the year in which the appellant's actions in respect of the second and third accidents were commenced. Dr Learoyd said that, 'on mental state, the appellant presented as a tense, rigid, obsessional man who was extremely angry, tearful and depressed'. He was not suicidal. He gave Dr Learoyd the impression of being excessively sensitive. She noted that, according to his history, he was very litigious. She said that, without knowing more detail about what happened at work, it was probably best to regard him as having an adjustment disorder with mixed emotional features. The Doctor prescribed some medication and said that the appellant was to see her again in two weeks. There is no other report from Dr Learoyd in the record. UACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA a8@ Sheppard AJA) Another psychiatrist, Dr Greenberg, said in a report dated 12 September 1990 that the appellant was suffering from a mild reactive depressive state. Prognosis depended essentially on that for his orthopaedic treatment and his finding suitable employment within his physical capacity. He said that, in view of his age and medical condition, the prognosis must be guarded. Dr Grady saw the appellant more recently than either Doctors Learoyd or Greenberg. That may account for his Honour's not mentioning their reports in his analysis of the psychiatric evidence. Having referred to the two reports of those Doctors, we conclude that there is nothing in them which suggests that his Honour's conclusion about the appellant's psychiatric condition was otherwise than in accordance with evidence he was entitled to accept. Claim for Past and Future Economic Loss — Loss of Earning Capacity as Consulting Engineer: His Honour then turned to the appellant's claim for economic loss. The claim is divided into two parts. One is in respect of losses of earnings and future losses of earnings either as an employee of the Water Board or in practice as a consulting engineer. The other concerns losses claimed to have been suffered by the appellant as a consequence of being unable to manage adequately his investments which consisted in large measure of real estate. Each claim was supported by an accountant's report prepared by a firm of chartered accountants, Furzer Crestani & Co The report in respect of loss of earnings as an engineer, whether as an employee or a consultant, is contained in exhibit N and the other report in exhibit O We have earlier noted that the appellant's claim for economic loss exceeds $4,000,000. It is made up of the two components of his claim in respect of each of which a figure in excess of $2,000,000 is claimed. The acceptance of the claim would have meant that the amounts of the judgments in these cases would have totalled something of the order of $5,000,000. Experience of these claims in Australian Courts, not only this Court, suggests that a judgment for approximately $5,000,000 as a consequence of motoraccidents such as occurred here, would be most unusual. Indeed the claims are so large that they raise, on their face, the question whether they could be genuine or whether they have been exaggerated or even fabricated. That was clearly his Honour's reaction to them. His reaction was understandable. His Honour said that the appellant's claim was for loss of salary, including a loss of salary because of a lack of promotion up to the time of his dismissal in September 1986 and the time he would have retired in 1992. Salary loss up to 1986 was based on what the appellant claimed was his loss of promotion resulting from his injuries and his loss of salary as a result of the termination of his employment calculated to age 65. He claimed for loss of income from age 60 to 75 as a result of not being able to engage in professional engineering work as a consultant chartered electronics engineer. He also claimed a loss of superannuation benefits. His Honour said that there was an overlapping of these two claims. He also said that there was no evidence of the appellant having conducted a private practice as a consulting engineer whilst working for the Board. He referred to the fact that he had claimed to have worked for two hours per day as a consulting engineer after his work with the Board finished. He contrasted this evidence with statements made to doctors that he had to lie down for two hours when he returned home. His Honour added, "Once again, it is difficult to know what to believe with this plaintiff'. 40 UNREPORTED JUDGMENTS His Honour said that the appellant was born on 23 January 1932 and was employed by the Board from 8 June 1970 until 26 September 1986 when he was dismissed. At the time of his appointment he was employed as a C grade engineer. He remained in that classification throughout his service. His salary at termination was $38,000 per annum. His Honour then came to the detail of the accountant's report, exhibit N. Under a heading, 'Background', the accountants set out a number of matters relating to the history of the appellant's employment. They noted the date of termination of the employment and his age. Reference was also made to workers" compensation payments received by the appellant. In the next section of their report, the accountants noted the information which they were given. In paragraph 3.2 they said that, following advice from the appellant's solicitors, they had accepted schedules 1 to 5 prepared by McDonald Ross & Co These schedules were copied and attached to the report. McDonald Ross & Co are another firm of accountants. An accountant, Mr Pyke, gave evidence. He is a member of the firm, Furzer Crestani & Co Mr Pyke asked the appellant whether he was happy with the schedules from McDonald Ross & Co He told the appellant that, if so, he would incorporate them in his report. The appellant agreed and Mr Pyke remarked that there was no requirement to review what McDonald Ross & Co had done. It was agreed that the tax returns were not required because the schedules and the returns had been seen by McDonald Ross & Co and had been summarised in extensive schedules. Mr Pyke said he accepted the schedules. We find the state of the evidence about the sources of information in the accountants" report confusing. On page 6 of the report, the accountants said that they accepted the statistics prepared by McDonald Ross & Co 'in the absence of our review of the plaintiff's income tax returns'. They added that the schedules summarised taxable income and the components therein of the appellant and his spouse. Mr Pyke was asked about this in the course of his oral evidence. His evidence was as follows: Q: ... Is there any way that we can see that as a figure that has been provided and tested by you as representing a gross and then a net income of Mr Cachia in the financial year ended 30 June 1986 being the year immediately before he had finished work at the Water Board? A: The first thing would be the schedule but that was compared by McDonald Ross. Even though a tax return was not provided there must have been a notice of assessment because the taxable income was described over the 1986 year and 1985, the 1984 financial year is the only year where there seems to be no provision of any information.""'We had assumed that McDonald Ross & Co must have prepared the appellant's income tax returns and had copies of relevant information in their files which enabled them to provide the schedules relied upon by the accountants. Having read the statement made by Mr Pyke about a tax return not having been provided and the further statement that there must have been a notice of assessment because the taxable income was 'described over the 1986 year' and so on, we are not so sure this is correct. His Honour did not remark upon any of these matters and, on that basis, we think we should accept, for the purposes of dealing with the appeal, that the information contained in the five schedules annexed to the report was authentic. We have misgivings, however, as to whether this really is a correct course to adopt. The matter is not dealt with in the respondents" submissions. UACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA ad Sheppard AJA) After referring to the schedules, the accountants said that, in addition, Mr Pyke had attended a meeting with the appellant on 24 November 1993 at which 'various documentation' was provided in support of the claim. The schedules were then itemised. Schedule | summarises the appellant's personal income tax returns for the years ending 30 June 1968 to 1992, schedule 2 is a summary of the appellant's share trading activities for the years 1968 to 1992, schedule 3 is a summary of the appellant's net rental income for the years 1972 to 1992, schedule 4 is a summary of partnership net rental income (his wife being the other partner) for the years 1971 to 1992, and schedule 5 is a summary of the appellant's wife's personal income tax returns for the years 1969 to 1992. There are then some attachments which comprise material from the Water Board concerning appointments and confirmations, a seniority list issued in June 1970, another such list issued in June 1985, a calculation of past economic loss in respect of the period 14 September 1973 (the date of the first accident) to 30 June 1992, and a calculation of interest on economic loss in respect of the period 14 September 1973 to 28 February 1994. Attachment 7 is the calculation of interest on loss ofsuperannuation benefits in respect of the period 24 January 1992 to 28 February 1994 and an addendum, described as addendum No 2, comprises a list of specified engineers and relevant gradings prepared by the appellant. These were provided apparently in relation to his claim that, had it not been for the accidents, he would have had promoted beyond grade C. The accountants said that they had been requested to assess economic loss sustained by the appellant pertaining to loss of salary as a result of not being promoted, loss of salary as a result of the termination of the appellant's employment before he attained 65 years of age, loss of income from age 60 to age 75 as a result of not being able to engage in professional engineering work as a consulting chartered electronics engineer, and loss of superannuation benefits. The report noted that the plaintiff was born on 23 January 1932 and was married. The schedules summarised taxable income and the components therein of the appellant and his wife. The figures are shown for the years ending 30 June 1971 to 1983 inclusive. The appellant's net salary for the 1983 year was $33,313. It was then noted that no figures were provided for the 1984, 1985 and 1986 years. It was said that in 1987 the appellant received $8,415 which represented his salary to 26 September 1986. If that be right, it is really the 1984 and 1985 years for which no figures were provided. The accountants noted the amount of workers" compensation which was received according to information prepared by McDonald Ross & Co They noted that the appellant was employed by the Board from 8 June 1970 to 26 September 1986, and that at the time of the termination of his employment the appellant was employed as a grade C engineer. His salary upon termination was $38,092. The information for these figures came from the appellant himself. The accountants noted that the appellant was employed as a grade C engineer from 1970 to 1986 with the consequence that he was not promoted during the period of his service. Some engineers in the employ of the Board had been promoted during this period. These were to be seen in the attachments. Mr Pyke was advised by the appellant that his qualifications and experience should have led to promotion during his employment with the Board as a B grade engineer, an A grade engineer, a supervising grade engineer, and an inspecting grade engineer. A table on page 10 of the report — we are uncertain about the source — shows that in 1970 there were 61 C grade engineers, 31 B grade 42 UNREPORTED JUDGMENTS engineers, 20 A grade engineers, 20 supervising grade engineers and 12 inspecting grade engineers. In 1985 these figures had become 95, 104, 36, 16, and 10 respectively. The accountants were advised by the appellant that salaries for these various grades ie from C grade to inspecting grade were (roundly) $37,000, $41,000, $44,000, $48,000 and $54,000. The accountants then proceeded to the calculation of economic loss. The accountants said that past economic loss had been considered in respect of the period 14 September 1973 to 30 June 1992 and future economic loss in respect of the period 1 July 1992 to the expected retirement date of the appellant. The accountants were asked to assume that the appellant would have resigned from the Board when he attained 60 years of age and taken his lump sum superannuation and that he would have worked as a consulting engineer from the age of 60 to the age of 75 years. On that basis, his retirement, he having been born on 23 January 1932, would have taken place on 23 January 1992, ie some months prior to the commencing date of the period selected by the accountants. We have not understood this. The accountants first considered the loss of income from 14 September 1973 to 26 September 1986. A number of factors were taken into account. The first of these was workers" compensation repayable andthe Fox v Wood component. The reference to Fox v Wood is a reference to the decision of the High Court in Fox v Wood (1981) 148 CLR 438 which decides that a plaintiff who suffers loss of earnings as a result of injuries caused by a defendant's negligence is entitled to recover damages representing the additional loss occasioned by having to repay the gross amount of workers" compensation when the plaintiff had the benefit of only the net amount after tax. The remaining factors were annual leave/sick leave foregone (this component was not calculated because of the absence of specific information), and loss of salary 'due to the promotion', ie lack of promotion. The accountants said that the calculation of an assessment of loss would not be accurate in the absence of comparable wage information. An averaging method had been adopted whereby the appellant would have achieved promotion on a pro-rata basis from 1973 to 1986 as follows: 30 June 1973 C grade 1976 B grade 1979 A grade 1982 supervising grade 1985 inspecting grade Inferentially, the accountants made it clear that their task in this regard was difficult without adequate records. They acknowledged that their conclusions were thus arbitrary and open to criticism on that account. There followed a tabulation of salaries which would have been received by engineers in each of the grades. The tabulation was compiled upon the assumption that the salary was evenly 'pro-rataed' between 1970 and 1986 and that work-related deductions would have been consistently incurred for each grading of employment. In relation to the years 1986 to 1992 the accountants said that the appellant'sloss of salary was based upon his employment as an inspecting engineer, ie the highest grade. During this period it was assumed that he did not derive an income from personal exertion employment. UACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA a4@ Sheppard AJA) Two separate approaches were adopted. Alternative (1) was that the appellant's residual earnings were nil based upon his inability to obtain any form of employment due to his incapacities. The second alternative was that the appellant's residual earnings were based upon his employment prospects as a C grade engineer. The 1986 salary had been indexed for increases in the Consumer Price Index. The accountants said that, with respect to salaries beyond 1986, they had indexed the salary of an inspecting engineer for increases in line with the CPI. These showed figures ranging from $54,000 in 1986 to $77,000 in 1992 upon the assumption that work related deductions were incurred at $300 per year. Again, a lot of assumptions are involved. There would have been no need for this if proper records had been produced. To the extent that the report is open to criticism on this ground — what we say is no criticism of the accountants who inferentially pointed out the difficulties — redounds to the disadvantage of the appellant who bore the onus of proving his loss of income. As mentioned, the Court was bound to look at the claim with great care. The earnings of the appellant are matters peculiarly within his own knowledge. The respondents could check certain matters but without full records they were unable to do the comprehensive checking which would be necessary in order to test the reliability of the figures that were used. The appellant must understand that in cases such as this evidence of loss of earnings which is uncorroborated by evidence or records which one would expect to be produced is likely to be looked on with suspicion. His Honour made this point and he was correct to do so. The accountants then turned to the loss of salary claimed by the appellant in employment as a consulting engineer from 24 January 1992, when he would have attained 60 years of age, and 30 June 1992. Despitethe reference to employment, it would seem that the assumption was made that the appellant would not have been employed but would have been engaged in private practice as a consultant. Reference was made to guideline fee scales of the Association of Consulting Engineers Australia issued in April 1985. These provided for an hourly rate of $60.00, normal weekly hours of 37.5, and an annual chargeable time of 47 weeks. The accountants assumed that the hourly rate was net of normal operating expenditure for a consultant and that the net rate adopted by them was assumed to be a conservative one. The figures were assumed to be inclusive of leave entitlements and operating expenditure. The accountants then stated that past economic loss to 30 June 1992 was calculated on the assumption that the amount of $20,866.94 was fully refundable. They were unable to calculate a Fox v Wood component. The calculations were attached as attachment S. In dealing with loss of income for the period 27 September 1986 (the date of the termination of the appellant's employment) and 23 January 1992 (his 60th birthday) the accountants adopted two alternatives. Alternative (1) assumed that the appellant's residual earnings were nil, based upon his inability to obtain any form of employment due to his incapacities. Alternative (2) assumed that the appellant's residual earnings were based upon his employment prospects as a C grade engineer. The accountants" calculations in relation to earnings lost as a consequence of lack of promotion were dealt with in attachment 5. The conclusion was that, under alternative (1), an amount of $519,000 was established. Under alternative (2), the amount was $231,000. There followed a calculation of interest on past economic loss. The claim for interest on past economic loss was $469,000 if alternative (1) were adopted, and $273,000 if alternative (2) were used. 44 UNREPORTED JUDGMENTS The accountants then came to future economic loss. They used standard life tables to make an assessment of the 'nominal expected life' of the appellant. Alternative (1) yielded a weekly figure of $2,250 calculated at $60.00 per hour for 37.5 hours. Alternative (2) involved a figure of $1,232 which discounted the figure of $2,250 achieved pursuant to alternative (1). Three per cent present value tables were adopted. The appellant's medical condition and his ability, if any, to resume employment was taken into account. It is not clear on what basis it was taken into account any more than it is clear what the basis was for the next item which is the opportunities available to the appellant to continue working as a full-time consultant to age 75. The accountants said that they had carried out the calculations as a guide for the assessment of the matter and had assumed that the appellant would not be able to resume his duties at a level exceeding the assumptions 'utilised as alternatives (1) and (2)', and that the opportunity for work full-time as a consultant at $60 per hour would be available. Future economic loss was calculated at $1,224,000 if alternative (1) were adopted, and at $670,000 if alternative (2) were adopted. Mr Pyke, when in the witness box, corrected an error in the multiplier of 543.9 used for those calculations. He said that the new multiplier was 617.2. This would result in the calculation of $1,224,000 being replaced by $1,389,000. The figure of $670,000 required amendment to $760,000. So the two figures need to be understood accordingly. We should say at this point that, if one were minded to adopt the approach taken by the accountants as a guide, one would have to do so with some caution bearing in mind the lack of information with which they were supplied and the assumptions which they made, particularly concerning the question whether the appellant would have been promoted. There are significant questions about this discussed by his Honour. In any event, the tabulations prepared by the accountants show that the numbers of engineers who achieved promotion to higher grades was limited. Not all engineers went on to each higher grade and it would be erroneous to take the view that, as a matter of course, the appellant, all other things being equal, would have achieved promotion as the assumptions made by the accountants suggest. There isalso a serious question whether the appellant, if he had established a consulting engineering practice, would have been able to continue in it for the fifteen years from the age of 60 to the age of 75. It would be unusual, to say the least, for an engineer, not previously in private practice, successfully to establish a practice which would earn substantial money and continue in that practice for fifteen years. The claim would have to be substantially discounted if it were entertained at all. Generally speaking, the report so far as we have taken this review of it, appears to be quite unrealistic and even fanciful. This is not something which his Honour mentioned because he took the view that, in any event, any unfitness for work suffered by the appellant was not due to the effects of any of the injuries suffered by the appellant in the accidents. For his Honour, that was an end to the matter. His finding in that regard is challenged. But we point out that, if the challenge were successful even to a degree, the figures relied upon by the accountants in the report would have to suffer a very substantial discount. As mentioned, what we have said is not intended to be a criticism of the accountants who were asked to perform a particular task upon the basis of certain information. They carried out their instructions and were aware of the weaknesses in the approach which they had adopted. UACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA a4@ Sheppard AJA) The next matter dealt with in the accountants" report was the appellant's claim for loss of superannuation benefits. The claim, so the report said, was based upon the differential of superannuation benefits actually received by the appellant from the estimated entitlement to benefits using the approach of the career path earlier outlined until age 60 years. Beyond this period it was assumed that the appellant's consultancy revenue had incorporated any benefit which might have arisen. The report said that 'to simplify the analysis' a report dated 18 June 1993 of William M Mercer had been used. Although the report does not say so, we believe Mr Mercer to be an actuary. The report said that this approach had been taken after reviewing the guide of State Superannuation Contributions — March 1985, in addition to the accountants" understanding of the State Superannuation Deed and Rules. There were then stated theassumptions upon which the report was made. These were that the appellant would have remained in employment with the Board until age 60 (which he would have attained in 1992), that his employment was in fact terminated on 26 September 1986 and that the appellant was a member of the State Superannuation Fund. The report said that on 16 March 1987 the appellant began receiving a before-tax fortnightly pension of $428. He subsequently commuted the pension to a before-tax lump sum of $183,000. He was then 60 years of age. There followed an account of the analysis which was done. The appellant's loss of superannuation benefit as at 23 January 1992 was calculated at $264,100 from which was deducted the actual benefit of $126,815 leaving an amount of $137,285. Interest on the loss of superannuation benefits to 28 February 1994 was calculated at $33,790. The report concluded with a summary which showed that, if alternative (1) were adopted, the total claim would be $2,400,000 (roundly). If alternative (2) were adopted, the claim would be $1,366,000 (roundly). The tabulation in which the summary is contained indicated that no amount was allowed for a Fox v Wood component and that loss of annual/sick leave entitlements was not calculated. The amount was made up of refundable workers" compensation, an amount for loss of promotion and interest thereon, future economic loss of $1,224,000, superannuation benefits foregone of $137,285 and interest lost on superannuation of $34,000. Alternative (2) involved the same amount in respect of refundable workers" compensation. The figures for loss of promotion and interest thereon become $231,000 and $273,000 respectively. $670,000 was the figure for future economic loss. The same figure, $137,285 is allowed for superannuation benefits foregone. The interest was also the same, namely $33,790. Mr Pyke's alterations to the multiplier used in relation to the claim for future economic loss may have made a difference to these figures. There would have been some increase in them as a consequence of what he said. His Honour referred to the detail of the report and said that he believed that there were a considerable number of fallacies in the appellant's approach to loss of earnings. He said there was no evidence to support the claim that the appellant would have been promoted to inspecting grade or at all. There was no evidence either that he would have been promoted, as the calculations assumed, in accordance with a three yearly increment in each grade which, according to the information supplied to the accountants, would follow with the promotion to the next grade. His Honour referred to exhibit U which was intended to show promotions because of engineers being placed in acting positions. The exhibit did not bear out promotion on a three yearly increment. His Honour went on to draw comparisons with the assumptions made by the accountants and the actuality as 46 UNREPORTED JUDGMENTS shown in exhibit U. His Honour also referred to exhibit F which was relied upon by the appellant to establish that engineers on the same level or below the appellant in 1970 had been promoted. It showed, according to the submissions made on behalf of the appellant, that, by 1986, when the appellant was dismissed, 26 engineers had been promoted above the appellant. His Honour said that only one, Mr Pilkington, had reached inspecting grade, the grade it was claimed the appellant would have reached by 1986. Three reached senior inspecting grade, five supervising grade, and the remainder A grade. His Honour concluded that it was not likely that the appellant would have achieved inspecting grade. His Honour referred to a further exhibit, exhibit 10, which showed that very serious problems had arisen between the appellant and a Mr Farrell, mentioned in the application to lead fresh evidence, in September 1973. Exhibit 10 showed that the staff were concerned about the appellant's attempts to discredit Mr Farrell. As a consequence the appellant was removed from the section in which he was junior to Mr Farrell. Obviously there was dissension within this section of the Board. It is difficult, without hearing evidence on the matter which, for reasons given, was out of the question, to make an assessment of the rights and wrongs of the dispute. His Honour appears to have regarded the statements to be found inexhibit 10 as statements he should accept. We think the question rather is whether one should accept the evidence of the appellant in the light of the whole of the circumstances of the case. If, as his Honour thought, it was correct to take the view that his credit was seriously in question, then it would have been appropriate for his Honour to conclude that he could not rely upon the appellant's evidence in relation to the disputes which existed amongst staff of the Board in the 1970s. Exhibit 10 is a memorandum dated 25 September 1973 written by Mr VG McGregor, the Principal Engineer, Electrical, to the Chief Engineer (Services). Mr McGregor mentioned that Mr Farrell had found it necessary to place the drawing office under different control. The appellant had been responsible for the supervision of that office until shortly before the memorandum was written. At that time he had been made responsible for supervision of the field activities of the electronics section, the electronics workshop and the electronics laboratory. Points of complaint made against the appellant by Mr Farrell in a letter dated 24 July 1973 included depressed morale of staff which was attributed to the appellant, the appellant's disregard of any knowledgeable arguments put forward by staff, doubts about his honesty and persecution of subordinate staff. The memorandum is detailed and occupies two closely typed pages. The events recorded in it occurred almost 25 years ago. There is no evidence about the matter except that of the appellant. The only way the matter could be approached in the present proceedings was to do as his Honour did, namely to make an assessment of the reliability overall of the appellant's evidence and reach conclusions on the basis of his finding in this respect. It is to be observed that the appellant remained in the employ of the Board for thirteen years after the writing of the memorandum. The employment certainly has a history of dispute and upset on the appellant's part. His Honour later reviewed this comprehensively. Having reflected on the matter, we do not think that his Honour's findings in relation to this matter disclose appealable error and we would reject grounds of appeal based on submissions to the contrary. His Honour took an adverse view of the fact that the appellant in 1973 and 1974 wrote letters to the then Premier of New South Wales, Sir Robert Askin, in which he made very serious allegations about the management of the Board and UACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA add Sheppard AJA) the honesty and integrity of certain of his superiors. This occurred after his removal from the electronics section. His Honour referred to this correspondence in some detail. Eventually his Honour said: Once again, one can only wonder at the temerity of the plaintiff. Even if he was of the opinion that there was waste in the section, he must have realised that action along these lines could only lead to him being sent to Coventry, which subsequently, I believe, occurred. In the light of Mr McGregor's recommendations, it is a wonder he was not dismissed. Furthermore, as I have said earlier, this was action taken after his removal from the section that must have irritated his superiors. Once again, it is but one of the many examples of his inability to recognise that he could be at fault in any way. The appellant's claims were found by the Board to be untrue and he was told that repetition would not be tolerated and could lead to disciplinary action. It was noted that his technical competence was not in question but that his general service in a relatively short time of just under four years was far from satisfactory. He had received two reprimands and been transferred. His Honour said that the appellant denied that he had been reprimanded by Mr Claymus in May 1974. He said that this was in conflict with one of the exhibits in which there were records of the reprimand. There may be two views about any dispute and, as mentioned, it is difficult to make up one's mind about the rights and wrongs of anything without hearing the evidence of both sides. What has to be said, however, is that, whatever the rights and wrongs of the appellant's approach to the various matters which he raised and whatever the propriety or otherwise of his having written to the Premier may have been, the Board's attitude to him, objectively speaking, was adverse. If this was the cause of his not receiving promotion, it has nothing to do with these cases. His lack of promotion was not due to injuries suffered in the first accident which had occurred on 14 September 1973, eleven days before Mr McGregor's memorandum, and well before the letter written to the Premier on 6 January 1974. Nothing in the letter,or indeed in other documents which are in evidence, is suggestive of the first accident having caused him such disability as to render him unfit for his work at least at that stage. Seven years intervened between the first and second accidents. As his Honour noted, the history the appellant gave Dr Learoyd attributed his lack of promotion to his having written to the Premier. This only emphasises the fact that his lack of promotion was not due to injury suffered in the accidents but to the problems which existed, at least in the eyes of the senior officers of the Board, in relation to his attitude to his work. His Honour then referred to long periods during which he was absent from work. He also referred to appeals brought by the appellant on a number of occasions against promotions of other engineers. Some of the appeals occupied many days hearing. One lasted eight days, another six, and others two or three. All appeals were disallowed or dismissed. The appeals went to the Government and Related Employees Appeal Tribunal ('GREAT'). That Tribunal's decision in one case was given on 25 June 1981. The decision referred to controversy occurring when the appellant wrote to the Premier for the third time in January 1974 making serious allegations about a more senior engineer and also regarding inefficiency in the electronics section of the Board. Further controversy and litigation had occurred regarding time taken off by the appellant for physiotherapy treatment following a motor vehicle accident and also some sewer work done by the Board on the appellant's property. The Tribunal said that recent reports indicated that he was carrying out 48 UNREPORTED JUDGMENTS his duties in a satisfactory manner though concern had been expressed regarding sick leave absences. There were other decisions of GREAT in promotion appeals on 16 December 1981, 9 July 1982 and 16 December 1982. We have looked generally at these but they do not really help to cast any light on the matter other than to indicate that the appellant was not successful in his appeals. His Honour has referred to some of the detail of what the Tribunal said in these cases. We have not thought it necessary to recount it here. We mention, however, his Honour's reference to the Tribunal's decision of 9 July 1982. Amongst other things, the Tribunal said in its decision that the question of management experience and proven ability in that respect apart, the way in which the appellant had conducted himself during the hearing had convinced the Tribunal that he lacked the personal qualities necessary for success as a manager. His approach to the various witnesses who gave evidence in the case quickly led to antagonism between him and them. In the Tribunal's view he was unable to gain co-operation from any of these persons in the way one would expect of a person seeking appointment to a quite senior management position where ability to get on with other staff was vital. The Tribunal concluded that the appellant would have to radically alter his attitude in his dealings with others and try to project a reasonable and cooperative stance rather than an adversary one. His Honour said that this accorded completely with his view of the appellant. He said: He is an obstinate, stubborn and arrogant man who can see no wrong in anything he does. In my view, he would only have antagonised staff if placed over them. I envisage serious problems arising and I believe this was recognised by the Board, particularly his refusal to accept he did anything wrong in that section. There followed a further review of evidence given by the appellant principally in his cross-examination and some further reference to proceedings taken against the Board. It is unnecessary to refer to the detail of this. We find no error in it. Eventually his Honour said: This by no means covers all the material in relation to this matter. The plaintiff comes before me without any corroboration of his allegations that his lack of promotion was due to his disabilities resulting from these accidents and the necessary time he had off work to attend medical and physiotherapy appointments. I think I have made it quite clear that in my view the plaintiff was an untrustworthy witness in respect to his evidence before me. I emphasise again that it is the plaintiffs responsibility, seeing as he is making a very large claim for past and future loss of wages, to adduce evidence other than his own assertions to support his allegations. I can only conclude no such evidence was available and I can understand why that is so. We should also refer to a passage in the judgment where his Honour drew further conclusions: This is a man who was employed as a C Grade engineer of junior standing who had the audacity to criticise the operation of the Board in his early employment and who wrote to the then Premier making serious allegations about the Board's administration and waste. His ability to self-destruct is demonstrated by his attitude in many appeals to the Tribunal and his inability to consider to the slightest degree that he was at all in the wrong. This, together with his refusal to accept advice as to his future conduct, particularly his refusal to relieve at C Grade to give the Tribunal some idea of his managerial ability, and his continued criticisms of his employer and staff, continued, in my view, to be irresponsible acts that in effect caused his lack of promotion. Obviously his Honour was very critical of the appellant for having written to the Premier making criticisms of the Board's administration and waste. It was perhaps unnecessary for him to emphasise the matter as often as he did. One UACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA a4@ Sheppard AJA) needs to be careful not to discourage employees, particularly in Government service, from making justified criticisms of work practices and the like in their organisations. Obviously employers might well resent being flooded with these complaints, particularly if they had no foundation. This whole matter is a vexed issue in the community at the moment. There is a tension between an employee's duty of loyalty to his employer and, on the other hand, the public interest which there is in ensuring proper administration of Government activity. It is a difficult balance and creates differences and tensions. We do not think complaints of this kind are necessarily to be encouraged but we would not wish to say anything which completely discouraged them because, occasionally, there may be substance in them. This matter is not really a matter before the Court in this appeal. What his Honour said may be thought, perhaps, to have been an over-reaction to the actions of the appellant in writing to the Premier but we do not think that anything his Honour has said in this regard could possibly form the basis for a successful submission that his Honour's statement in some way revealed an appealable error. Of more consequence is his Honour's finding that an examination of the exhibits relating to the appellant's time off work as a result of his injuries showed that a lot of this was for physiotherapy treatment. Despite warnings by the Board's doctors, he made no attempt to arrange to have hisphysiotherapy sessions at a time when he would not lose time from work. His Honour thought that this could have been arranged if the appellant had put his mind to it. His Honour referred to exhibit L which revealed that from 29 April 1986 to 19 September 1986 the appellant was off work for a period of over nine weeks on sickness leave. Exhibit L was originally tendered during the appellant's evidence in chief. The tender was withdrawn. The matter was raised in cross-examination and exhibit L was tendered during the course of the cross-examination. The exhibit is divided into two parts: one dealing with sick leave and the other with accident leave. The part dealing with sick leave is comparatively short. It shows 19 days absence in 1986 in periods, the first of which commenced on 6 March 1986 and the last of which on 16 June 1986. Conditions were said to be surgical operation, nausea, sore throat and otitis. The part dealing with accident leave is much more extensive. It deals with periods of absence from 1982 through to 19 September 1986. The part is headed, 'Accident Leave: Accident of 28-7-82'. The document was prepared by the appellant and thus attributes the absences to which we are about to refer to the third of the accidents in question here. The tabulation making up this part of exhibit L has four columns: 'Period', 'Days', 'Reason', and 'Ordered by'. Under the final column there are names of doctors including the names of Dr Krzyszton and Dr Douglas. Every absence is attributed to accident injuries, ie injuries from the third of the accidents. A total of 178 days absence is involved. These were all claimed to have been ordered by various doctors including Dr Kryzszton and Dr Douglas, but also including other doctors whose reports are not referred to in the evidence. The two longest absences were two periods, one of 38 days and one of 21 days, which extended respectively from 24 June 1986 to 15 August 1986, and from 22 August 1986 to 19 September 1986. In dealing with exhibit L, his Honour said that from 29 April 1986 to 19 September 1986 the appellant was off work for a period of over nine weeks on sickness leave 'including the two months he requested from Dr Douglas, showing, in my view, his complete contempt for the Board'. His Honour added: 50 UNREPORTED JUDGMENTS The situation that brought about his dismissal resulted in his absence from work on a certificate of Dr Krzyszton dated 21 August 1986 testifying he was suffering a "recurrence of a duodenal ulcer (query related to work stress)" and certifying he was unable to carry on his work from 22 August 1986 to 19 September 1986 (annexure to Exhibit AB). So it appears one week after a period of 7 1/2 weeks he returned to work for a week and was given a certificate for a recurrence of a condition not clearly work related for a further month. No wonder the Board was concerned about his attitude. It is interesting in this regard to note that Dr Read, a gastroenterologist, saw him at about this time, and in a report dated 17 September 1986 he stated he had seen the plaintiff and reassured him that he had a strong suggestion of having a duodenal ulcer but the plaintiff refused to be endoscoped. The doctor said, "His problems with stress at work have really reached an almost irretrievable stage and he is now quite paranoid about the organisation and whether there is true discrimination or not is not for either of us to say but certainly from his point of view it is very real and is causing significant stress". Clearly he had had enough of working for the Board. I infer the doctor was referring to the failure to promote the plaintiff. He went on, "Seventeen years ago when he had his own business he also was involved in stress and at that stage the symptoms he had were very similar to those that he now has and in fact he is being woken at night at least twice per night. ... He eats bland food which he feels has improved him and is obviously a certain placebo effect involved in some of this. ... He is also being aggravated by the fact that he does take Indocid for back problems. ... He has worked as an electrical engineer but he is thinking seriously of changing occupation from the Water Board". This is a further indication that the plaintiff was fed up with the Board. The stress, in my view, resulted because of his paranoid view of his employer. His Honour's point in the last sentence of the passage quoted is that, to the extent that the appellant was suffering stress, it was not due to the effects of any of the accidents; it was due to his problems within the Board and the long history of disputation over promotion and other matters that had gone on for almost the whole period of his employment of seventeen years. The critical point that needs to be made is that, whatever the rights and wrongs of the appellant's absences from work in 1986 and in earlier years may have been, and whatever exhibit L may say, on his Honour's findings concerning the medical condition from which he suffered, if any, it is clear that the effects of all the accidents including that which took place in 1982 were long since spent. He was not suffering continuing effect as a consequence of any of the motor accidents in which he had been involved. His Honour's conclusions in this regard are amply justified on the evidence and reveal no error. His Honour referred further to some additional medical evidence and to the detail of the circumstances in which the appellant came to be dismissed. We do not find it necessary to refer to the detail of his Honour's findings in this regard. We detect no error in them. His Honour then referred to proceedings relating to the appellant's superannuation. The appellant argued that the Director of Human Resources at the Board did not have the power to dismiss him. The matter came before the Industrial Court, firstly before Cullen J who upheld the Board, and then before the Full Court. His Honour said the Court criticised the Board strongly in relation to the dismissal. The finding of the Industrial Court was against the State Authorities Superannuation Board which, so the appellant submitted, created an issue estoppel. This is a matter which his Honour discussed at length. We are content to conclude that no issue estoppel could have been created because the parties before the Industrial Commission were not the same as the parties before URACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA afd Sheppard AJA) the Court. The various defendants in these cases were not privies of the Superannuation Board. That is enough to dispose of the argument based on issue estoppel. There was also a submission by the appellant that the judgment of the Industrial Court was a judgment in rem. That could not possibly be correct. Furthermore, as his Honour said, his Honour's task was to determine the appellant's capacity for work generally and the cause of that incapacity so far as it was occasioned by neck and back injuries. As he said, the fact that the Industrial Court found that the appellant was unfit for work because of a recurring ulcer over a short period of time when it was said by a certificate relied on that the appellant would havebeen able to return to work on 22 September 1986 in no way estopped the Court from making findings as to the appellant's medical condition, the cause of it, and the effect of it. His Honour drew a number of conclusions in relation to the appellant's problems with the Board. We do not refer to the detail of these. It is sufficient to say that his judgment, as a whole, makes it clear that any injuries to the appellant's neck and back suffered as a consequence of the accidents had long since ceased to have any adverse effect on him by the time he was dismissed in 1986. In our opinion, his Honour's findings do not reflect any error. Claim for Loss of Investment in Real Estate: His Honour said that the first claim for loss of investment in real estate was made in an amended statement pursuant to Part 33 rule 8A of the Rules filed on 3 September 1992 in which it was alleged that a loss of $2,183,606 had been suffered up to date and that the loss was continuing. Details of the claim were annexed. The particulars were made up of a series of claims for losses made as a consequence of the appellant being unable to invest in properties during the years 1974, 1975, 1976, 1977, 1979 (1978 was omitted), 1980, 1981, 1982, 1983, 1984, 1985 and 1986. The claims for losses varied from $390,000 (roundly) in 1974 down to $43,000 in 1986, and totalled, as we have said, $2,183,606. The claim proceeded upon the basis that a house would have been bought in Carlingford and another house in Castle Hill each financial year except 1978. Although the particulars were filed in 1992 there was no claim made for the years after 1986 other than the indication that the claim was a continuing one. His Honour said that the respondents submitted that no allowance should be made for the claim. They said that the appellant gave unsatisfactory evidence as to why the claim was not particularised until 1992. The appellant said that he realised that his ability to invest in real estate had been affected shortly after the 1973 accident and this caused him to become 'extremely, extremely upset'. He agreed that he didnot tell any doctors in the 1970s about his inability to invest in real estate stating 'my investments were my private business'. It was not until 1992 that he told doctors about his inability to invest in real estate having been affected. The particulars under Part 33 were not the only particulars of the claim relied upon. The claim was fully particularised in exhibit O which was prepared by the accountants, Furzer Crestani & Co Their report is dated 22 October 1993, about one year after the particulars under Part 33 were filed. For some reason which we do not understand, his Honour has made no reference to this report. The accountants noted that they had received a copy of the particulars filed under Part 33 in addition to certain letters and a report of McDonald Ross & Co dated 18 January 1993. There was no reference to that report having been tendered. The reference to the tender of the accountants" report, exhibit O, on 22 October 1993 52 UNREPORTED JUDGMENTS does not mention it. There are schedules said to be from McDonald Ross & Co's report attached as was the case in relation to the claim for loss of earning capacity. Mr Pyke, as earlier mentioned, was called to give evidence and was in a position to deal with both reports. It may be observed that the report dealing with the loss of investment income was prepared some months prior to the report dealing with loss of earning capacity which was dated 17 February 1994. Since his Honour made no reference to the report of the accountants dealing with loss of income and thus made no findings about it, it is difficult to give it much weight. Some questions were asked about it in the course of the appellant's cross-examination but these were of a general kind and not particularly helpful. For this reason we mention only the accountants" conclusions which postulated two alternatives, referred to in the report as scenario (1) and scenario (2). The first was that the appellant would have acquired two properties per year from 1972 to 1986. The properties would have remained in the portfolio to the date of the report and continued during that period as rented properties. Scenario (2) was "as per scenario (1)' but, due to the increase in annual trading losses from 1981, it was assumed that theappellant would have sold two pre-accident properties to reduce existing borrowings, these being properties at Carlingford and Castle Hill. There followed the accountants" calculations which, in relation to scenario (1) yielded a claim of $2,658,000 and in relation to scenario (2) $2,450,000. We have assumed that the reason why the calculations stopped at 1986 was because of the imposition of capital gains tax in that and subsequent years. It is not clear, however, that this was the reason why 1986 was the last year postulated in both the particulars and the accountants" report. We come now to his Honour's treatment of this part of the claim. His Honour first of all dealt with the appellant's failure to make a claim for loss of investment income until 1992 when the particulars under Part 33 were filed. The appellant suggested the matter had been left to his solicitors. His Honour said that this, as an explanation from a man who was extremely litigious, was 'absolute nonsense'. He added that no satisfactory evidence had been given to the solicitors in order to enable them to particularise the claim. He then referred to the appellant's unwillingness to provide income tax returns. His Honour discussed the medical evidence and the nature of the claim in some detail and concluded that, when all the material before him in respect of the claim was considered, he could not be satisfied that the appellant, who bore the onus of proof, was incapable of carrying out investment in real estate. He said that he was quite satisfied that, if the appellant had desired to do so, he would have been able to carry on purchasing real estate. He added, 'The acumen and persistence that he showed in pursuing this litigation took up most of his time. The manner in which he conducted this litigation shows he was by no means as disabled as he would have everyone believe'. His Honour said that, having regard to the appellant's activities during this period and the symptoms as he found them to be, he could only describe the claim as 'a try on' by the appellant and something whichwas an after thought. He said that it was for the appellant to satisfy him that he had lost the ability to invest in real estate and the claim failed. We would add that the particulars relied upon by the appellant pursuant to Part 33 and the material in the accountants" report do not go nearly far enough to establish the appellant's claim even if one were to take them at face value. Furthermore, the supporting material referred to in them was not produced despite the fact that the claim was strongly contested. His Honour was quite URACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA abd Sheppard AJA) correct in concluding that there was no satisfactory evidence of the claim and in rejecting it. No error is disclosed in the judgment in relation to this aspect of the matter. Aggravated Damages: The claim was based on the respondents" conduct of the case and 'excessive cross-examination'. The appellant described the cross-examination as 'extremely harrowing and in fact a mental torture'. Submissions were made about the appellant's humiliating and inhumane treatment by the Water Board. We do not understand what that has to do with a claim for aggravated damages against the respondents. The claim is not against the Water Board and has nothing to do with its conduct any more than its conduct has anything to do with these cases. His Honour thought that, in all the circumstances, the conduct of the respondents was bona fide, justifiable and proper. He emphasised that the appellant was claiming millions of dollars and must have realised that he would be subject to a searching cross-examination. He rejected the claim. In our opinion his Honour was right to do so. We have referred to the cross-examination generally. We do not detect anything unfair in it. It is firm and it extended over some days. We do not suggest that it did not cause the appellant stress. Not to put too fine a point on it, it was suggested that the appellant was making an extravagant and unjustified claim for a very large sum of money well beyond anything that he couldpossibly reasonably hope to recover. In our opinion, the appellant's resentment of the cross-examination stems from his expectation that people with whom he deals, including the Court, should take his statements and allegations at face value. When they are challenged, and particularly when they are tested against objective facts and contrary evidence, he becomes upset and feels himself under stress. He may well have been under stress, but if he was, it was not due to any improper conduct on the part of the Court or counsel for the respondents. The claim for aggravated damages was rightly rejected. Other Litigation: His Honour dealt at great length with litigation in which the appellant had been engaged during the period during which he was said to be seriously incapacitated. As his Honour said, the appellant's claim was for alleged inability to work as an engineer and to invest in real estate because of his injuries. He said that he had referred at some length to the extensive litigation he had conducted against the Board before GREAT and to two appeals from its decision to the Court of Appeal. He said that the litigation, on occasions, occupied many days and was conducted by the appellant in person. He said that it would have been difficult for an untrained person and would have resulted in the appellant having to spend a great deal of time in its preparation. This caused him to wonder about the accuracy and truthfulness of the appellant's complaints to the various doctors as to his activities. He said that none of these litigious activities were mentioned in any of the doctors" reports except insofar as some general comments appeared in the report of Dr Learoyd. His Honour said that he examined the litigation the appellant had undertaken 'to see if those activities were in accord with his condition as described by the appellant's doctors'. His Honour embarked on an extensive review of a number of cases in which the appellant had been involved. We have referred to some of these. His Honour referred to others as well. He also referred to the extent of the argument in them put on behalf of the appellant and submissions prepared by himself. His Honour's discussioncontinues over many pages of the judgment and we do not refer to the detail of it. The account his Honour gives appears to be 54 UNREPORTED JUDGMENTS accurate. His Honour's ultimate conclusion was that the extent of the activity involved in the litigation in which the appellant engaged personally was inconsistent with his claims to be totally disabled as a consequence of the accident. That is the only relevance of this part of the judgment. It does not really take the matter much further because that was the conclusion at which his Honour arrived, justifiably in our opinion, upon his findings in relation to the medical evidence. What his Honour said in this section of his judgment tends to reinforce what he there found. Certainly, it is not inconsistent with it. His Honour's Conclusions: His Honour then came to his conclusions. He said that there was an onus on the appellant to prove the matters which he had set out to prove. He was prepared to accept that he suffered soft tissue injuries to his neck and to a lesser extent his lumbar spine. But he thought that the effects of the disability would have been relieved within eighteen months of the 1973 and 1982 accidents. He doubted whether he suffered any real injury as a consequence of the 1980 accident. He was not satisfied that he had any present disability arising from the accidents. If he had, he thought that it was minimal and resulted from his pre-existing condition of a degenerative spine. He concluded that the appellant had no permanent aggravation from the accidents. Furthermore, he did not accept that the physiotherapy with which he was treated was necessary. It was then that his Honour concluded that he was prepared to allow the appellant a modest sum for general damages and reached the conclusions to which we have earlier referred. The matter was stood over to a date to be fixed after counsel had had an opportunity of considering what he had said. As mentioned, the second judgment is dated 5 February 1996. His Honour referred generally to the written submissions lodged on behalf of the parties. The judgment is quite short. He came to hisconclusions about the way in which each of the claims should be dealt with and set out the detail of his conclusions in accordance with what has been earlier said. That concludes the account of his Honour's judgments in the matter. No error is disclosed in that judgment which does no more than give effect to the conclusions reached by his Honour in the judgment of 26 May 1995S. Some General Remarks: The account of his Honour's principal judgment which has been given in these reasons has served two purposes. Firstly, it gives an overview of his Honour's findings and conclusions on the major questions in the case. Secondly, it has provided an opportunity of dealing with a substantial number of the appellant's submissions. But what has so far been written does not deal with the entirety of the multiplicity of submissions which appear in the two volumes containing the appellant's contentions on the appeal. They occupy in all over 350 pages of closely written material. Some of this material deals with matters of substance and some with minutiae. It should be clear that the task of an appellate court is not to ransack the reasons and findings of a trial judge in order to see whether the judgment is totally free from error. It is only errors of substantial substance in approach or in the understanding of critical evidence which are likely to result in an appeal being successful. In appeals such as these, where an appellant seeks to challenge findings of fact based on credibility, appellate courts are reluctant to interfere. That is the matter explained and emphasised by the High Court in Devries (above) and other cases there referred to. In short, a court will not interfere unless satisfied that the trial judge has failed to use, or has palpably misused, his UACHIA v WALKER; CACHIA v GIO OF NSW; CACHIA v MORLEY (Mason P, Stein JA a6@ Sheppard AJA) advantage, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable. Those words are taken from the judgment in Devries. The appellant's case depended upon a favourable finding from his Honour in relation to his credibility. That was not forthcoming for the various reasons his Honour gave. None of these shows that his Honour failed to use or palpably misused his advantage. His Honour did not act on evidence which was inconsistent with facts incontrovertibly established by the evidence. He did not act on evidence which was glaringly improbable and his own findings in the matter were in accordance with the probabilities bearing in mind the evidence which he accepted. One of the most critical findings made by his Honour was in relation to the appellant's fitness for work. Essentially, his Honour found that he was fit. But he also found that, to the extent that he was not fit, such unfitness as there was was a consequence of his long disputation with his former employer, the Water Board. That had nothing to do with any of the accidents or the respondents. If any such unfitness existed, it was due to the appellant's problems with his former employer. The appellant endeavoured to say that all his problems stemmed from the accidents, particularly the first in 1973, but also from the others. As we followed the argument, he submits that his health, both physical and mental, was irretrievably damaged and impaired as a result of the accidents and was itself responsible for all his problems, both with the Water Board and within his family. The evidence does not bear him out in this respect. His Honour's findings are against it and, to the extent that the case is based on that approach, it must fail. His Honour detected features of gross exaggeration in the appellant's claim. In the case of his claims for lost earning capacity both in relation to his profession and his investment activities, this is demonstrated, in our opinion, on the face of the written material relied upon in support of the claims which, if allowed in full, would have yielded judgments totalling over $4,000,000. On no basis could the injuries suffered by the appellant in the accidents have led to anything like a claim of that proportion. Nevertheless, notwithstanding these conclusions and the views which we have expressed, the comprehensive treatment of the matter by his Honour and our own reference to many of submissions relied upon by the appellantwhen dealing with the judgment, we are conscious that there are many other submissions in the two volumes of written material with which we have not expressly dealt. We have considered them generally and we have reached the conclusion that each should be rejected. We do not propose to say any more about them than that simply because we regard the case as clear once one reaches the conclusion that on the substantive questions which are involved, his Honour's judgment is not affected by appealable error. It is for that reason that we do not refer to the remaining submissions other than to the extent to which we have. Conclusion: In our opinion the appellant has failed to demonstrate such error in his Honour's reasons and findings as would justify our allowing this appeal. Accordingly, the appeals are dismissed with costs. The appellant's applications to disqualify his Honour for apprehended bias and for leave to lead fresh evidence are also dismissed with costs. 56 UNREPORTED JUDGMENTS 1 Application by appellant for leave to lead fresh evidence dismissed. 2 Complaint by appellant that trial judge's findings affected by bias dismissed. 3 Appeals dismissed. 4 The appellant pay the respondents their costs of the appeal and of the application to lead fresh evidence and the complaint concerning bias: but to the intent that the respondents recover no more than one set of costs in all. The appellant appeared in person Counsel for the respondents: HG Shore Solicitors for the respondents: JM Crestani Solicitor