New South Wales Court of Appeal CITATION: Bott v Suttons Motors Australia Pty Ltd Trading as Suttons City Holden [2006] NSWCA 307 HEARING DATE(S): 08/09/06 with subsequent written submissions JUDGMENT DATE: 7 December 2006 JUDGMENT OF: Ipp JA at 1; Tobias JA at 57; Young CJ in Eq at 58 DECISION: (1) Mr Bott's applications for leave to lead new evidence and to file further submissions dismissed with costs. (2) Leave refused to Mr Bott to file the fourth amended notice of appeal. (3) Suttons' application to strike out the third amended notice of appeal is upheld. Mr Bott to pay Suttons' costs. CATCHWORDS: PRACTICE AND PROCEDURE - motion to strike out appeal - failure adequately to identify grounds of appeal - contravention of Pt 51 r 11 of the Supreme Court Rules 1970. ND Davy v Garrett (1878) 7 LR Ch 473 Devries v Australian National Railways Commission (1993) 177 CLR 472 CASES CITED: Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 Fox v Percy (2003) 214 CLR 118 Radnedge v GIO (NSW) (1987) 9 NSWLR 235 PARTIES: David Charles Bott (Appellant) Suttons Motors Australia Pty Ltd Trading as Suttons City Holden (Respondent) FILE NUMBER(S): CA 40886/04 COUNSEL: In Person (Appellant) P W Neil SC/D J Hooke (Respondent) SOLICITORS: Edwards Michael Moroney Lawyers (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 12610/01 LOWER COURT JUDICIAL OFFICER: Rein DCJ LOWER COURT DATE OF DECISION: 22/09/04 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40886/04 DC 12610/01 IPP JA TOBIAS JA YOUNG CJ in Eq Thursday 7 December 2006 DAVID BOTT v SUTTONS MOTORS AUSTRALIA PTY LTD t/as SUTTONS CITY HOLDEN Judgment 1 IPP JA: On 8 September 2006, two applications were listed for hearing before this Court. The first was a notice of motion, filed on 28 August 2006, by the claimant ("Suttons") seeking an order that the notice of appeal of the opponent (Mr Bott) be struck out for contravening Pt 51 r 11 of the Supreme Court Rules 1970 and on other grounds. The second was a notice of motion by Mr Bott seeking several orders, including leave to file new evidence in the appeal, leave to subpoena four witnesses "for answers to questions pertaining to specific matters in evidence", for an order that cross-examination of witnesses "be done by phone", and other relief, much of which is not intelligible. 2 The notices of motion concern an appeal that Mr Bott wishes to prosecute against a judgment of Rein DCJ delivered on 22 September 2004. By this judgment his Honour dismissed a claim in negligence by Mr Bott against Suttons. Mr Bott had sued Suttons for damages that he asserted arose out of two accidents in which he alleged he had been involved on 16 June 2000 and 11 July 2000 while in Suttons' employ. 3 Rein DCJ carefully analysed the evidentiary material before him. His Honour found the witnesses who testified as to liability on behalf of the respondent to be "totally credible". He described their evidence as being "in the starkest possible contrast to [Mr Bott]". His Honour gave several reasons for rejecting the evidence of Mr Bott. He said that there were "many inconsistencies" in Mr Bott's evidence and many discrepancies, often fundamental, between Mr Bott's description of events that he gave to the Court and descriptions he had given to other witnesses. Rein DCJ referred to the medical testimony in the case and said that this evidence only reinforced Mr Bott's lack of credibility. His Honour said that, without independent corroboration, he would not be prepared to accept anything that Mr Bott had said. Rein DCJ did not accept that Mr Bott had been involved in accidents on 16 June and 11 July 2000 as he asserted. His Honour was not satisfied that any medical condition of which Mr Bott complained could be attributed to any such accident or that any of the symptoms of which he complained were genuine. 4 Mr Bott filed a notice of appeal on 20 January 2005, outside time. On 17 February 2005 he filed an application seeking an extension of time within which to file his appeal. This application was granted. Since then there have been very many interlocutory applications and hearings all with a view to getting the appeal ready for hearing. Mr Bott has amended his notice of appeal three times. 5 On 16 May 2005 Suttons' counsel informed the Registrar that Suttons was prepared to meet the notice of appeal in its third amended form, subject to one condition. The condition was that Mr Bott's written submissions (to be filed) should adequately identify the grounds of the appeal. 6 The third amended notice of appeal is the notice of appeal, the subject of Sutton's application (although, as will be seen, Mr Bott now, implicitly, seeks to rely on a fourth amended notice of appeal). Mr Bott has filed many and lengthy written submissions dealing with his notice of appeal. 7 In 2006, Mr Bott consulted a pro bono barrister, the Court having ordered a certificate in this regard to be issued. The barrister concerned gave Mr Bott legal advice, but he remains unrepresented. 8 In 2005, in an interlocutory application, Mr Bott stated that he intended to rely on evidence that had not been led at the trial. He filed a number of affidavits in this regard. On 8 September 2006, before this Court, Mr Bott indicated that all the new evidence that he wishes to tender has not yet been prepared (although he has filed affidavits from several witnesses that set out new evidence on which he now seeks to rely). 9 At the hearing on 8 September 2006, Mr Neil SC, who together with Mr Hooke, appeared for Suttons, submitted that the many written submissions that Mr Bott had filed did not adequately define and clarify the issues to be litigated. On this basis, Mr Bott had not met the condition attached to Suttons' agreement to meet the third amended notice of appeal. Mr Neil submitted that it was not possible, having regard to the breadth and vagueness of Mr Bott's written submissions, and the many irrelevancies contained in them, to identify the issues in the appeal and to respond properly to them. 10 In his address to the Court, Mr Bott sought to argue the merits of the appeal rather than to explain how his written submissions appropriately articulated the grounds on which he sought to appeal. The Court pointed this out to Mr Bott on more than one occasion and attempted to explain what was required in formulating his grounds of appeal. It became apparent, however, that Mr Bott was not able, on his feet, to rebut the argument advanced by Mr Neil. He was not sufficiently familiar with the material and had difficulty in differentiating between what was relevant and irrelevant. 11 Rather than grant Suttons' motion there and then, and thereby strike out the appeal, the Court determined to give Mr Bott yet another opportunity to articulate his case. Having explained to Mr Bott what was required, the Court ordered that he file additional written submissions in this respect within fourteen days. Suttons' notice of motion was adjourned, as was Mr Bott's. The Court indicated that there would not be any further oral hearing and, after the written submissions had been filed, the Court would deliver judgment. 12 On 22 September 2006 Mr Bott filed a lengthy document entitled "Incomplete Consolidated Written Submissions". Attached to these written submissions was an affidavit by Mr Bott in which he asked for a further two weeks "to complete the task". Additionally, he attached to his written submissions more affidavits from several witnesses, being yet further evidence that he wished to file. Finally, without leave, he attached a document described as "Fourth Amended Notice of Appeal with Appointment". This appeared to be a reformulation, yet again, of his notice of appeal. The Court indicated to Mr Bott that he could have another two weeks. 13 Suttons filed its submissions on 27 September 2006 in which it reiterated the complaints it had previously made. 14 On 4 October 2006, Mr Bott filed a further document entitled "Consolidated Written Submissions Second Draft". On 18 October 2006, Mr Bott filed a notice of motion, supported by affidavit, in which he sought a stay of proceedings of six weeks to allow the completion of his written submissions. 15 Pt 51 r 11(1)(c) requires a notice of appeal to state, briefly, but "specifically" the grounds relied upon in support of the appeal. The written submissions filed by Mr Bott are in a form which make it impossible for any properly formulated grounds of appeal to be discerned. 16 Firstly, the written submissions contain many irrelevancies. It was said by high authority more than 125 years ago that nothing is more embarrassing to a party "than a number of statements which may be irrelevant, and with which he therefore does not know what to do" (Davy v Garrett (1878) 7 LR Ch D 473 at 483). 17 Secondly, the written submissions make allegations as to what was said or done or not said or done at the trial without linking the allegations to the transcript or otherwise indicating the material that supported them. As most of the allegations are based on conduct of which no trace can be found in the transcript, these omissions make it difficult, if not impossible, for Suttons to respond to them in an appropriate way. 18 Thirdly, the written submissions make bald allegations of conduct said to constitute breaches of procedural fairness or natural justice, and bias on the part of the trial judge. Many of the allegations, however, do not constitute conduct amounting to such breaches or bias. Moreover, at trial, no complaints of this kind were made - although Mr Bott was then represented by two highly experienced counsel. Without greater particularity, it is not reasonably possible for Suttons to respond to these allegations. 19 Fourthly, many of the arguments contained in Mr Bott's written submissions are based on the new evidence he seeks to adduce. No order has been made allowing Mr Bott to lead new evidence on appeal, although in his notice of motion he seeks such an order. There is no satisfactory explanation for Mr Bott's omission to lead the new evidence at the trial. The material does not suggest that that evidence was not available at the trial. Mr Bott did not apply for the trial to be adjourned to enable such evidence to be led. The evidence he now seeks to lead does not comply with the requirements that have to be met before new evidence will be allowed on appeal: Doherty v Liverpool District Hospital (1991) 22 NSWLR 284; Radnedge v GIO (NSW) (1987) 9 NSWLR 235. 20 Finally, the particulars given of Mr Bott's complaints of bias do not support an inference of bias; they are rather expressions of his dissatisfaction with the trial judge's findings. 21 Mr Bott, himself, appears to recognise the deficiencies of his written submissions by his act of attaching to his submissions of 22 September 2006 his proposed fourth amended notice of appeal. I shall, accordingly, address that document. 22 Paragraph 1 of the fourth amended notice of appeal is headed "Denial of Natural Justice". Underneath this heading are set out grounds 1(a) to (f). 23 Ground 1(a) reads: "His Honour's presumption of my fabricating both accidents and their consequences was erroneously based on his accepting incorrect submissions from the bar table, in the first days, well before hearing any witness testimony, either for or against." 24 This ground, by inference, alleges pre-judgment on the part of the judge. It is, however, not accompanied by any reference to the transcript that supports the allegation made. On my reading of the transcript, Rein DCJ gave no indication, prior to evidence being led, that he accepted any submissions from the bar table relating to factual issues. The pleading of this ground, accordingly, is inadequate as it does not properly explain to Suttons the case it has to meet. 25 Ground 1(b) reads: "His Honour erred in ordering testimony and allowing cross-examination to centre on evidence which was essentially irrelevant, caused me fear, and forced me, in doing so to break the law. (sect 79 crimes act, defence discipline act sect 58, Intelligence services act, sect 39 (see also ASIO act sect 18, assumed identities act sect 3)." [sic] 26 Again, there is no reference to passages in the transcript where the cross-examination alleged is recorded. There is no explanation as to how the cross-examination resulted in judgment wrongly being given against Mr Bott. If the cross-examination related to evidence "which was essentially irrelevant" (as is asserted), it is not apparent how Mr Bott could have been prejudiced thereby. The ground is confusing and embarrassing. Moreover, it does not assert a denial of natural justice. 27 Ground 1(c) reads: "His Honour erred by making erroneous judgment [sic] regarding dates and circumstances in testimony, and of my representation, which affected his decision regarding these matters." 28 Mr Bott does not identify the "dates", the "circumstances in testimony" and the "representation" said to be erroneous and he does not explain how those errors affected the judge's decision. It is to be noted that Mr Bott says that the judge's errors regarded "these matters" (that is, "dates and circumstances in testimony, and of my representation"). The ground is too vague to stand. In addition, the complaints made in this ground do not amount to a denial of natural justice. 29 Ground 1(d) reads: "His Honour erred in not providing judicial reasoning in accepting Opponent [sic] witnesses and testimony over my witnesses and left a gap in his reasoning in reaching his decision." 30 Errors in reasoning do not constitute a denial of natural justice. The alleged errors in reasoning are not identified. The ground is so lacking in particularity to be embarrassing. It cannot stand. 31 Ground 1(e) is based on the new evidence that Mr Bott seeks to lead, that is, evidence that – as I have stated – is inadmissible. It is not an appropriate ground of appeal. 32 Ground 1(f) reads: "His Honour erred in not allowing me to instruct counsel directly, excluding me from hearing all the evidence, deciding that my intended witnesses were irrelevant, knowing there was no instructing solicitors and noting this numerous times." 33 Again, there are no references to the transcript that indicate where his Honour erred in not allowing Mr Bott to instruct counsel, in excluding him from hearing all of the evidence, and in deciding that his intended witnesses were irrelevant. At the trial, his counsel made no complaints of this kind. I have, myself, been unable to discern from the transcript any support for the allegations made. In the course of argument on 8 September 2006 the Court drew Mr Bott's attention to the fact that the transcript did not seem to bear out his allegations and asked him to refer to the specific passages in the transcript on which he relied. Mr Bott was unable to do so during the hearing and one of the purposes of the adjournment was to afford him the opportunity of correcting this in later documents to be filed by him. He has not done so. It is not reasonably possible for Suttons to reply to the allegations made in this ground and it cannot stand. 34 Ground 2 of the fourth amended notice of appeal is headed "Denial or Procedural Fairness". Grounds 2(a) to (e) are set out under this ground. 35 Ground 2(a) reads: "His Honour erred in that by shortening proceedings, my right to reply or bring witnesses to give evidence in reply was taken away and I was unable to answer the many questions and assertions raised by the Opponent's effective cross-examination." 36 This ground does not reveal how it is said that Rein DCJ shortened the proceedings. A considerable body of evidence was led on Mr Bott's behalf. It is not possible from the transcript to discern how his right to "give evidence in reply" was taken away, particularly in these circumstances. I have been unable to discern from the transcript any complaint made by his counsel at the trial in this regard. How the alleged "shortening" of the proceedings meant that Mr Bott "was unable to answer the many questions and assertions raised by the opponent's effective cross-examination" is not explained. This ground cannot stand. 37 Ground 2(b) reads: "His Honour erred in allowing the statement of Mavroudis, in affidavit form, which had obviously been expanded to cover matters the subject of oral evidence before the Court." 38 Rein DCJ referred, in his reasons, to a statement from Ms Mavroudis in the following terms: "The defendant tendered a statement from Mavroudis, who recently gave birth and was not required to attend for cross-examination." In Ms Mavroudis's statement she explains that she had recently given birth, was experiencing post-natal difficulties and was under a lot of stress. The transcript records (at 813) that Ms Mavroudis's statement was "admitted without objection". In these circumstances, ground 2(b) is not comprehensible. 39 Ground 2(c) reads: "His Honour erred by upholding Opponent's claim for privilege over the statement of Greg Arnott J.P., despite being taken after his resignation and being a document created solely for the purpose of these proceedings, specifically regarding legal liability." 40 Despite the general request made to Mr Bott by the Court at the hearing on 8 September 2006, this ground does not indicate the page in the transcript where Suttons' claim for privilege in respect of the statement of Mr Arnott was dealt with. Mr Arnott did not give evidence at the trial and I can discern no reference to him in the judgment of Rein DCJ. During the course of argument, senior counsel for Suttons said that he did not know to what matters the reference to the statement of Mr Arnott related. Ex facie the ground itself, a claim for privilege would ordinarily be sustained (as the document, according to the ground, was "created solely for the purpose of these proceedings, specifically regarding legal liability"). The ground is embarrassing and cannot be allowed. 41 Ground 2(d) reads: "His Honour allowed examination of witnesses to centre on past (causing great surprise) or irrelevant matters, rather than evidence they came prepared to give regarding injuries." This ground does not establish procedural unfairness and must be rejected. 42 Ground 2(e) asserts that the judge "erred in application or non application of precedents to this case". This is not a denial of procedural fairness and the ground must be rejected. 43 Paragraph three of the fourth amended notice of appeal is headed "Bias". 44 Ground 3(a) reads: "His Honour erred by failing to take into account the possibility that my injuries and reduction in medication may have caused or contributed to memory lapses and inconsistencies in oral testimony, rather than more sinister motives alleged. (see Teychenne new evidence)" The allegation asserted does not constitute bias. Moreover, it is based on new evidence that is inadmissible. The ground must be rejected. 45 Grounds 3(b) and 3(c) concern what are said to be errors in factual findings made by the judge. These grounds do not concern bias on the part of the judge. Essentially, the grounds assert that the judge erred in the weight he attached to certain witnesses and his view of the evidence as a whole. These grounds do not constitute grounds on which an appellate court can interfere in a trial judge's findings of fact: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, Fox v Percy (2003) 214 CLR 118. 46 Ground 3(d) reads: "His Honour erred in allowing engineer Anderson to give his version of workplace conditions when his report was disallowed as was written under wrong act. Then relying heavily on it in his reasons not properly considering the evidence given, including differenciations [sic] of pipes." 47 This ground is nonsensical as Mr Anderson was called on behalf of Mr Bott himself when Mr Bott's counsel tendered Mr Anderson's report. 48 Ground 3(e) reads: "His Honour erred by pre-judging expert witnesses, before hearing their testimony on crucial matters pertaining to proceedings (Teychenne and Ellis) on damages." 49 This ground must be rejected as no reference is given to any part of the transcript which demonstrates that the judge pre-judged the expert witnesses and there is no admissible material to which reference is made which indicates how Mr Bott intends to support this allegation. 50 Ground 3(f) reads: "His Honour erred by simply accepting Opponents submissions in balancing probabilities and referring to in his reasons such as (riding bicycle, martial arts and terms such as kidnapping) which were quotes and exaggerations of testimony in submission by Opponent's counsel." 51 This ground, on its own, does not establish an error of law entitling this Court to interfere in the judge's findings. I would add that the judge did not simply accept Suttons submissions. His Honour gave full and detailed reasons for his findings. In any event, this ground does not indicate bias on the part of the judge. 52 Ground 3(g) reads: "His Honour erred in accepting material from other Court files, without properly considering associated material, so as to put that material into context (Local and Family Court files)." This ground lacks particularity, and is not a ground that establishes bias. 53 Ground 4 is based on the new evidence. As the new evidence is not admissible, this ground must fail. 54 In order to assist Mr Bott, the Court of Appeal registry prepared all the appeal books. Later, extensions of time were granted to allow him opportunities to comply with the various directions that were made. On two occasions, on 15 September 2005 and 25 May 2006, Mr Bott did not appear at directions hearings. Mr Bott, frequently, did not comply with the Court's directions. His conduct has caused delay and costs. 55 Mr Bott has been given every possible opportunity to present his appeal in accordance with the Rules of Court. He has been afforded a considerable amount of leniency. Despite explicit explanations having been given to him as to what was necessary, he still has not complied with the Rules of Court. Moreover, his arguments are based, substantially, on irrelevancies, wishful thinking and false assumptions. 56 I would dismiss with costs Mr Bott's applications for leave to lead new evidence and to file further submissions. I would refuse leave to Mr Bott to file the fourth amended notice of appeal. I would uphold Suttons' application to strike out the third amended notice of appeal, and order Mr Bott to pay Suttons' costs . 57 TOBIAS JA: I agree with Ipp JA. 58 YOUNG CJ in Eq: I agree with Ipp JA. ********** 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.