New South Wales Court of Appeal CITATION : Australia Post v Cairns [2000] NSWCA 154 FILE NUMBER(S) : CA 40837/98 HEARING DATE(S) : 14 June 2000 JUDGMENT DATE : 14 June 2000 PARTIES : Australia Post (Claimant) John Paul Cairns (Opponent) JUDGMENT OF : Meagher JA at 16; Stein JA at 1; Foster AJA at 17 LOWER COURT JURISDICTION : District Court LOWER COURT DC 3663/98 FILE NUMBER(S) : LOWER COURT Garling DCJ JUDICIAL OFFICER : COUNSEL : D D Feller (Claimant) D A Wheelahan QC/C R Burge (Opponent) SOLICITORS : Vardanega Roberts (Claimant) Beston Maken McManis (Opponent) CASES CITED: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 DECISION : Leave to appeal granted; Appeal dismissed with costs IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40837/98 MEAGHER JA STEIN JA FOSTER AJA Wednesday, 14 June 2000 AUSTRALIA POST v John Paul CAIRNS JUDGMENT 1 STEIN JA: This is an application for leave to appeal from a decision given by Garling DCJ granting leave to the opponent, John Paul Cairns, to proceed pursuant to s 52 of the Motor Accidents Act 1988 to commence proceedings more than three years after the date on which the accident, to which the claim related, occurred. 2 It is agreed between the parties that if leave is granted the court will proceed to hear the appeal and, for that purpose, we have heard full argument from Mr Feller, counsel appearing on behalf of the claimant, Australia Post. 3 The proceeding has considerable history set out, in part, in his Honour's judgment and in more detail in a useful chronology prepared for the purpose of the application for leave to appeal. 4 The draft notice of appeal alleges two particular errors by his Honour. The first, and in my estimation probably the most important, is ground 4 which alleges that his Honour incorrectly inferred from the evidence that a Mr John Gosling, the driver of a vehicle in the employ of the claimant and involved in the accident suffered by the opponent was not a material witness to the accident. I will return to what his Honour found with respect to Mr Gosling in a moment. 5 The second principal ground of appeal claims that his Honour's discretion, which he was exercising, miscarried because his Honour did not give adequate consideration to whether there was significant prejudice to the claimant and whether a fair trial was now possible. 6 There are other grounds in the proposed notice of appeal but each of them, grounds 3, 5 and 6 [I leave aside the general ground No.1] alleges a misattribution of weight by his Honour. I do not need to remark that where one is appealing against the exercise of a judicial discretion, it is difficult to succeed on 'weight' arguments. 7 Returning to what his Honour said about Mr Gosling. It is to be found at p 5 of the judgment. His Honour said: It seems to me, having considered the evidence in this case, that Mr Gosling did not see the accident. Whilst he now says he has no memory, there is a brief statement from him but it does not appear to advance the plaintiff's or the defendant's case any further. 8 The material which his Honour was referring to is, firstly, a handwritten statement from Mr Gosling obtained by Australia Post on 24 September 1991. It is headed 'Incident at International Airport 29.12.89' and reads as follows: After un-loading I was proceeding to loading dock when I noticed a Qantas staff [and I interpolate that Mr Cairns was an employee of Qantas] checking what I had just unloaded when he apparently moved to a position where he was either run over by back wheel of truck or barrow containing mail. 9 This was signed with the signature of John Gosling 'Motor driver'. 10 It appears that in 1996 Mr Gosling was telephoned by a private inquiry agent and he told the private inquiry agent that he had no recollection of the incident. Mr Gosling did not give evidence before his Honour and all that his Honour had before him was the statement of Mr Gosling, which I have just read onto the record, and an affidavit of a private inquiry agent, (Blayne Webb) of the conversation with Mr Gosling. 11 As I have said, ground 4 of the Notice of Appeal challenges the inference drawn by his Honour that Mr Gosling did not see the accident. 12 I say at once that the finding of his Honour in this respect was perfectly open. Indeed, it is one which I would also form on reading the few short lines of Mr Gosling's statement. It is apparent that that finding, together with the later statement by the private enquiry agent as to what Mr Gosling could not now recall, were central to his Honour's conclusion that it did not affect Australia Post receiving a fair trial; that is, that a fair trial could be held. 13 Nor do I see any error in his Honour's findings concerning prejudice, given his finding in relation to Mr Gosling not seeing the accident. Bearing in mind all of the other relevant circumstances, I am unable to see how it can be said that there was a real possibility of significant prejudice to the claimant nor, indeed, material prejudice to it. 14 In my opinion, his Honour did not err in the exercise of his discretion, and he did not misapply the principles explained by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, nor any of the other authorities. 15 I would propose that leave to appeal be granted, since it is an arguable case, but dismiss the appeal with costs. 16 MEAGHER JA: I agree. 17 FOSTER AJA: I likewise agree. 18 MEAGHER JA: Those are the orders of the court. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.