Todorovic v Moussa [2001] NSWCA 419 (21 November 2001)

Last Updated: 22 November 2001

NEW SOUTH WALES COURT OF APPEAL

CITATION: Todorovic v Moussa [2001] NSWCA 419

FILE NUMBER(S):

40418/00

HEARING DATE(S): 4 October 2001

JUDGMENT DATE: 21/11/2001

PARTIES:

Appellant: Dragan Todorovic

First Respondent: Charlie Moussa

Second Respondent: Charlie Moussa & Sons Constructions Pty Ltd

JUDGMENT OF: Powell JA Beazley JA Sperling J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 886/97

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

COUNSEL:

Appellant: R McLoughlin SC/ R Hanlon

Respondent: L King SC

SOLICITORS:

Appellant: Milena Mijatovich

Respondent: Riley Gray Spencer

CATCHWORDS:

Judgment

Reasons for judgment

Inadequate reasons

Amendment to judgment after delivery of reasons

Impermissible

LEGISLATION CITED:

Construction Safety Act 1912 (NSW)

District Court Rules 1973 (NSW) Pt 2A, r 7

DECISION:

Appeal allowed

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40418/00

DC 886/97

POWELL JA

BEAZLEY JA

SPERLING J

Wednesday, 21 November 2001

TODOROVIC v MOUSSA & Anor

FACTS

The appellant was injured in an accident which occurred on the second respondent's building site. The first respondent was the principal of the second respondent. There were two starkly different accounts of how the accident occurred. The appellant said that he had climbed a wooden ladder to speak with a co-worker, and when he went to go back down the ladder, it slipped and he fell on his back onto the concrete floor.

The first respondent claimed that the appellant staged the accident. He said that when the appellant arrived at the site he moved a 22 foot aluminium ladder on to a 45 degree angle and then climbed the ladder. Once on the ladder, the first respondent claimed that the appellant jumped and pulled the ladder onto himself so that he fell onto the concrete floor below. The first respondent maintained that he did not own a wooden ladder and that there was no such ladder at the site. He said that after the appellant fell he asked him for his insurance details.

Both parties had a corroborative witness. The trial judge rejected the account of the accident given by the appellant and his witness and found in favour of the respondents.

HELD per Beazley JA (Powell JA and Sperling J agreeing)

(i) His Honour's adverse finding in respect of the appellant's credit was not supported by the evidence and he failed to consider material evidence: Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) [1999] HCA 3; (1999) 73 ALJR 306.

(ii) His Honour failed to give adequate reasons for his decision: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Palmer v Clarke (1989) 19 NSWLR 158.

per Beazley JA (Powell JA agreeing, Sperling J disagreeing)

(iii) The first respondent's account of the accident was glaringly improbable: Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) [1999] HCA 3; (1999) 73 ALJR 306.

(iv) His Honour's change in reasons after delivery of judgment was impermissible: Lam v Beesley (1992) 7 WAR 88; Bar-Mordecai v Rotman [2000] NSWCA 123.

per Sperling J

(v) The first respondent's account was not glaringly improbable, although it was implausible.

(vi) The trial judge may have already decided to reject the appellant's witness before altering his oral reasons. Therefore, any amendment to the judgment was permissible, however, his Honour failed to give adequate reasons for rejecting the witness.

per Beazley JA (Powell JA and Sperling J agreeing)

(vii) The usual costs order should apply and therefore costs should follow the event: Fuller v The Council of Wagga Wagga (unreported, High Court of Australia Special Leave Application S247/1999, 14 September 2001) distinguished.

ORDERS

(i) Appeal allowed;

(ii) The judgment of Delaney DCJ be set aside;

(iii) The matter be remitted to the District Court for a re-hearing before a judge other than Delaney DCJ;

(iv) Costs of the first trial to abide the result in the second trial.

(v) Respondent to pay the appellant's costs of the appeal, but to have a certificate under the Suitors' Fund Act 1951 (NSW), if so qualified.

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40418/00

DC 886/97

POWELL JA

BEAZLEY JA

SPERLING AJA

Wednesday, 21 November 2001

TODOROVIC v MOUSSA & ANOR

JUDGMENT

1 POWELL JA: I agree with Beazley JA.

2 BEAZLEY JA: This is an appeal from a decision of Delaney DCJ in which his Honour entered a verdict for the defendants/respondents in respect of the appellant's claim for damages for an injury he sustained on 16 August 1994 on the second respondent's building site.

3 The trial judge's determination in favour of the respondents was based solely on his assessment of the credibility of the appellant and the first respondent. He rejected the appellant as a witness of truth, and accepted the first respondent's evidence that the appellant did not fall as the appellant alleged. Each party had a corroborative witness. The trial judge rejected the appellant's witness and accepted the evidence of the respondents' witness.

4 The appellant accepted that to succeed on the appeal he must displace the findings of the trial judge in accordance with the well established principles in Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, Devries v Australian National Railways Commission (1993) 177 CLR 472 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306, (1999) 160 ALR 588: (the Abalos issue). The appellant submitted however, that notwithstanding the credit findings against him and his witness the trial judge erred in his judgment a number of significant respects.

5 On the Abalos issue, the appellant contended that his Honour's findings against him were inconsistent with incontrovertible evidence to the contrary and that the first respondent's evidence was glaringly improbable and his Honour's acceptance of it was contradictory to other findings made by his Honour. The appellant further alleged that his Honour failed to take into account certain relevant evidence, made findings not supported by the evidence and failed to give adequate reasons for rejecting the appellant's witness Mr Fefelov and for accepting the respondent's evidence. It was also alleged that his Honour altered his reasons after delivery of judgment in a way which was impermissible. Finally, it was submitted that his Honour failed to consider the appellant's claim based upon breach of statutory regulations contained in the Construction Safety Act 1912 (NSW).

6 The appellant was a gyprocker and had contracted with the second respondent to undertake work on the second respondent's building site at West Pennant Hills. The first respondent was the principal of the second respondent. The building work being undertaken was the construction of three 2 storey houses. The appellant had employees working on the site for him.

7 At about 4pm on 16 August 1994, the appellant attended the site to pick up one of his workers, Andrew Fefelov, in order to give him a lift home. He said he had driven himself to the site and that the first respondent was present when he arrived. He said Mr Fefelov was working on the first floor and he climbed up a wooden ladder to see him. The ladder was standing protruding above the first floor level, which at that stage comprised a timber frame. It seems clear from the appellant's evidence that Mr Fefelov was the only one of his workers on site at the time. Mr Fefelov said his co-worker had left about an hour earlier.

8 The appellant said that when he went to go back down the ladder, he placed his right foot on one rung and moved his left foot to the next rung when the ladder slipped and he fell onto his back to the concrete floor below. He said he was about three metres above the floor when the ladder slipped.

9 The appellant said the first respondent came up from the basement after he fell. He said he was shocked and shaking, had pain and dizziness. He was taken to hospital by ambulance.

10 Mr Fefelov's version was relevantly to the same effect.

11 The first respondent's version was starkly different. He said the appellant was driven to the site (which he described as three separate houses) by a person whom he first identified as Mr Fefelov, but then equivocated, saying "very hair same, face the same, but I can tell him a little bit fatter. I can't swear is that him or his brother. I don't know". However, on two further occasions in evidence in chief, he identified Mr Fefelov as the person with the appellant. In cross-examination he again asserted without equivocation that Mr Fefelov had driven the appellant to the site.

12 The first respondent said the appellant and the driver went into the site. He said the appellant had two workers on site at the time. The first respondent then described what happened in these terms:

"He moved it between the frame - the timber - jammed in and move it to the next room underneath the ceiling. The step ladder 22 foot which is nearly six and a half metres. Its too long. So what he did, 45 degrees.

Q So you're saying he put the ladder at a 45 degree angle?

A Yes.

Q Up against ...

A Underneath the ceiling.

...

A ... I ask him, `What are you doing?' He says, `Not your bloody business.' ... I keep watching ...

...

A ... I sit there and I seen he want to climb up. I said, `Wait.' He started to climb up. He climb up from one metre to 1200, just about the same height as this, and the step ladder start to slip back. When the step ladder slip back he tilt underneath the step ladder - quickly before the step slip down and when his face underneath the step ladder. And he went up. I say, `What do you do that for?' He said, `Step ladder fall on me.' I said, `Why did you jump under step ladder?' He didn't say nothing. He stand up and he says, `What's your number insurance?'...

...

A ... I said, `I haven't got a number.' He said am I insure and I said not. ... His mate was standing before me [referring to Mr Fefelov]. He got his mobile number and ring the ambulance straight away. I haven't got a mobile. I haven't got a telephone that side."

13 The first respondent said that the appellant had used an aluminium ladder and there were no wooden ladders on the site. In fact, he said he had never had a wooden ladder.

14 The first respondent's evidence as to the ladder was corroborated by his brother, Norman Moussa. Norman Moussa is a painter and decorator who worked extensively with the first respondent including at the West Pennant Hills site. He described the site as being two double storey houses. Albeit he was somewhat confused about the type of the building, he seems to have later described these as townhouses. He said there was only one ladder on site, which he described as being a 22 foot aluminium extension ladder. He said he had never seen a wooden ladder on site. He did not see the accident.

15 The only matters to which his Honour referred in his judgment in determining how the accident occurred were as follows. As to the appellant's version he said:

"The [appellant] alleged that he went onto the site in the afternoon to take Mr Fefelov home. He said that he went onto the building site, and in the course of doing so went up to the area of one of the houses under constructions(sic) where Mr Fefelov was. ...

The plaintiff said that he was then going to leave the site, and in doing so went to put his foot on a wooden ladder which was at the site of the construction, that the ladder slipped as he put his foot on it and he fell to the ground suffering serious injuries."

16 His Honour dealt with Mr Fefelov's evidence in these terms:

"The witness, Mr Fefelov, was with the [appellant] on the day when he was injured. He gave evidence at the trial to corroborate the [appellant's] evidence about the manner in which the accident occurred. ... I do not accept Mr Fefelov as an accurate witness." (emphasis added)

17 This last sentence did not appear in his Honour's judgment delivered orally some six weeks after the conclusion of the evidence. It appeared for the first time in the approved transcript of the reasons.

18 His Honour recorded the following in relation to the first respondent's version:

"Norman Moussa had said that the [first respondent] owned no wooden ladders. In the context of this dispute a further dispute arose on the evidence between the two. That dispute was where the [appellant] was when he alledgedly did fall from a ladder.

[The first respondent] said that he did in fact seem to fall from a ladder, but that it was an aluminium ladder and it was in completely different circumstances to that alleged by the plaintiff.

In this regard there was a clear issue of fact to be determined as to whether or not the [appellant] should be accepted on his version of the facts and also whether [the first respondent] should be accepted on his version of the facts."

19 His Honour recorded that he observed the appellant giving his evidence, including his responses "partly through an interpreter". He said:

"I do not accept the [appellant] in any respect. I find that he sought to avoid, evade and dissemble and tell outright lies about the nature and extent of his injuries an disabilities and the effect on him industrially."

20 His Honour concluded:

"I find, accepting [the first respondent], that the [appellant] in this case did not fall as he alleged he fell. I find that he did not fall from a wooden ladder from the height which he deposed and in respect of which he was supported by his witness. I find that any fall he had was more in the nature of the distance that was referred to by [the first respondent] ..."

Credit Finding in Respect of the Appellant

21 His Honour's adverse credit finding in respect of the appellant was based substantially on demeanour. To the extent it was not, it was based on his Honour's consideration of other evidence relating to the appellant's income, which had increased exponentially in the years after the accident, and also on two sets of photographs, taken from a video recorded in April 1999. One set of photographs showed the appellant lifting a piece of plasterboard with the assistance of another person. In one of those photographs the appellant's right arm was at a full upwards stretch. In the other set of photographs he was bending over. The video itself was not in evidence.

22 The trial judge found that the photographs "showed [the appellant] undertaking tasks which he had just before the tender of [the photographs] denied that he could do".

23 A review of the transcript reveals that his Honour's categorical comment is not an accurate reflection of the evidence. Prior to being shown the photographs, the appellant's evidence was that he could not work above his head. He explained this as not being able to gyprock ceilings. There was no evidence to the contrary. He agreed that he sometimes unloaded plasterboard with the help of another person. That is what one of the photographs depicted. He also agreed there was other lifting work regularly involved in the work which he undertook. He said, however, he could not do heavy physical work. He said "... I can't stretch my body and I have pain". As I have said, one photograph showed him lifting a piece of plasterboard with one arm at a full upwards stretch. That could be said to be in conflict with his evidence. However, there was only one photograph to that effect and it was possible and most likely that the appellant's evidence, properly understood was that if he stretched his arm he had pain. He was not cross-examined as to whether he felt pain on the occasion depicted in the photograph.

24 The appellant also agreed in cross examination that he had done heavy lifting work since the accident but "not recently". The video from which the photographs were taken had been taken 12 months previously. Even if the two photographs could be described as depicting the appellant undertaking heavy work, a matter about which there was no finding, given the qualification which the appellant gave on this topic, it cannot be said that his evidence amounted to a denial of what appeared in the photographs. In saying that, I do not seek to reduce the forensic importance of the evidence. The respondents were fully entitled to seek whatever advantage they could from it. However, I consider that his Honour's finding went beyond the evidence. To that extent his credibility finding is undermined.

25 Subsequent to the accident, the appellant had rearranged his work practices. He ran his business through a corporate structure and took on a more substantial management role, relying on others to undertake the heavy manual work, saying that he was restricted in the work he could do. His business appears to have been very successful.

26 His Honour did not make any direct findings in relation to his work capacity, except to the extent that he comprehensively rejected the appellant as a witness of truth. However, the mere fact that an injured person has been financially successful after an accident does not, of itself, mean the appellant did not suffer injury or that there was no interference with his earning capacity. The extent to which any such interference may have resulted in economic loss is another matter. In this case, the appellant appears to have discovered significant managerial and entrepreneurial skills post accident. Had the plaintiff been successful in his claim, it would have been incumbent upon the trial judge to have assessed the economic loss, if any, flowing from the accident in accordance with principle. For the purposes of the issue presently under consideration, however, I do not consider that the appellant's post accident financial position particularly assists in determining whether his Honour's credit assessment was flawed.

Failure to Consider Material Evidence

27 There was, however, other evidence in the case to which his Honour made no reference.

28 First, there was the question whether Mr Fefelov was at the site (the appellant and Mr Fefelov's version), or whether he drove the appellant there (the first respondent's version). Mr Fefelov said, and he was not cross-examined on the point, that he did not have a licence at the time. His Honour was not required to accept Mr Fefelov's evidence on this point, and the fact that he did not have a license is not of itself inconsistent with his having driven the appellant to the site. However, a finder of fact is more readily able to accept a witness' evidence if the witness is not cross-examined on the point in issue and there is no evidence to the contrary and in the normal course, such evidence should be accepted unless there is a reason to reject it. The real error here, however, is that, on the face of the judgment his Honour simply did not consider it.

29 Next, there was the evidence in relation to who telephoned the ambulance. The appellant had no recollection. Mr Fefelov said he was "pretty sure [the first respondent] did because I asked him to". He was cross-examined on this issue as follows:

"Q And did you call the ambulance?

A I didn't have a phone so I went to find [the first respondent].

Q Did you borrow [the first respondent's] phone?

A I didn't use his phone."

30 The first respondent's version was:

"... He got his mobile number and ring the ambulance straight away. I haven't got mobile. I haven't got telephone that [site]. He ring the ambulance and call the ambulance come. He walk to the ambulance. ...

Q ... His mate called the ambulance?

A That's correct, the bloke before me here.

Q You didn't call the ambulance?

A No.

...

A Yeah, when he got up he told me is insure and then he - he called them straight away and said, `All right, I'm going to the - I'll call the ambulance.' I said, `Do what you like.' He called the ambulance and he went by the ambulance. He walked to it. He wasn't sore..."

31 The first respondent denied there was a phone on the building site. The ambulance records reveal that an ambulance was called at 16.01 hours on 16 August 1994 with a history of a person having "fallen off ladder". The caller was not identified but in the section in the Ambulance records: "Additional Information" there was an entry: "Pt on Construction Site Phone - 8998780". That phone number appeared as the contact number on a Baulkham Hills Shire Council inspection report for the subject site. The inspection report identified the first respondent as the builder on site.

32 The ambulance records are important for another reason. I have referred above to the appellant's evidence as to how he felt immediately after the fall. Mr Fefelov gave evidence that when the ambulance arrived the appellant "definitely wasn't good ... he couldn't walk, or if he could he definitely had a lot of problems ... [he had a] contorted face, I could say he was definitely in a lot of pain".

33 The first respondent's evidence was:

"[The appellant] walk to [the ambulance]. He wasn't sore ... I said, `Stretch [your arm] up ... He stretch it up ...

...

... he wasn't shaking at all.

...

[He was] perfectly well." (emphasis added)

34 The ambulance records describe the appellant as being "very pale - moist". His pulse rate was low but improved over a 45 minute observation period. His blood pressure was also low but improved over the same period. He was taken to the ambulance on a stretcher. His Honour found there was "no doubt that [the appellant] had sustained an injury".

35 There was no reference to any of these matters in his Honour's reasons. They were all significant matters in the sense that they provided independent evidence of factual matters in issue. Given that the fundamental contest revolved around credibility, these matters should have been considered by his Honour and weighed up with the other evidence before he reached his conclusion. Had the evidence to which I have referred been considered, it may have assisted his Honour in determining where the truth lay. Indeed, they may have been critical to the proper determination of the matter.

Failure to Give Adequate Reasons for Decision

36 I have categorised his Honour's failure to refer to these matters as a failure to consider them. I have done so because of the complete absence of any reference to them in the judgment. It is not necessary of course, for a judicial officer to refer to every piece of evidence which is given. However, there is a requirement that there be adequate reasons for decision.

37 The judicial obligation to give reasons is well travelled territory. The reasons need not be elaborate, but "it is necessary that the essential ground or grounds upon which the decision rests should be articulated": Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at 280. Kirby P further explained the requirements in Palmer v Clarke (1989) 19 NSWLR 158 at 170:

"... it is not the obligation of a judge to give a jurisprudential exposition with every judgment. Nor is it the judge's duty to regurgitate evidence or state every step in the reasoning process, however remote that step may be to the ultimate conclusion. It is sufficient that the obligation be discharged by the judge for the purposes for which it is imposed by law. Those purposes were stated clearly in Soulemezis (at 279). ... Most importantly and relevantly to this appeal, they include so that the matter can be properly considered by the appellate court."

38 Senior counsel for the respondents drew the Court's attention to Liberty Investments Pty Limited v Sakatik Pty Limited (unreported, New South Wales Court of Appeal, 30 August 1996). There Mahoney JA said:

"In deciding what reasons are to be given and to be given under pain of being found guilty of an error of law, it is in my respectful opinion proper that the law have regard to reality and not to concepts. The law is not a game. It is not an academic exercise in which the Judge is required by way of a schematic statement of the dispute to itemise exclusively or to exhaustion all of the points which may be of relevance in relation to the case. A judgment is a practical working document." (emphasis added).

This is correct.

39 However, the matters which his Honour failed to refer in his judgment were not immaterial or peripheral. The failure to discuss these matters and to assess the evidence of the appellant, Mr Fefelov and the first respondent in the light of them, amounted, in my opinion, to a failure to give adequate reasons for decision.

40 A further point should be made in respect of the manner in which his Honour dealt with Mr Fefelov's evidence. The fundamental obligation of a trial judge is to hear and consider the whole of the evidence and then to determine what evidence is accepted. Mr Fefelov's evidence was of fundamental importance to the appellant's case. Although his Honour made cursory mention of it I do not consider that he properly considered it. Nor, as I have already said, did he deal with it adequately in his reasons. Had his Honour done so, he would have been faced with the fact that to the extent that there was objective evidence in the case - in particular the telephone number and the ambulance report, it supported Mr Fefelov's evidence. Had Mr Fefelov's evidence been assessed in light of that evidence, his Honour may have reached a different view in respect of its credibility. Had that occurred his Honour may have, and it would seem would have to have, reached a different view of the appellant's evidence. However, his Honour did not discuss his evidence beyond the passage set out at para 15 above, nor did he explain why he did not accept Mr Fefelov as an accurate witness. For the reasons already given, both failures involve appealable error.

Changing Reasons After Delivery of Judgment

41 The appellant contends that his Honour's alteration to the written form of judgment was impermissible. It is a well accepted rule of judicial practice that reasons for decisions may be revised after the delivery of oral reasons. The basis for the practice and its parameters were discussed by Gleeson CJ extracurially in "Revising Transcripts of Summing Up" (1997) 9 Judicial Officers' Bulletin at 25:

"A judicial officer revising a transcript of reasons for a decision is entitled to alter the transcript where, because of a slip, the reasons as expressed do not reflect what the judicial officer meant to say; or where there is some infelicity of expression which the judicial officer desires to remedy. There is no reason, in law or in policy, why a judicial officer who delivers a judgment ex tempore should be strictly bound to the precise manner in which the reasons were expressed. On the contrary, judges and magistrates are encouraged, where possible and appropriate to do so, to decide cases promptly and to give their judgments immediately. It would not advance that policy to prevent them from later improving the manner of expression of their reasons, provided, of course, that they do not alter the substance."

42 Kirby J has also written on the topic. In his paper "Ex Tempore Judgments - Reasons on the Run" (1995) 25 WALR 213, his Honour stated at 229:

"First, it is always possible, and entirely proper, for a judicial officer to revise ex tempore reasons, even extensively, without altering their substance or the orders which they sustain. ...

Depending upon the rules of court which typically govern such matters, judicial officers in superior courts can make even more substantial corrections to ex tempore reasons, extending even to the correction of their orders if it is demonstrated that they have made a mistake or a slip, or if the orders do not properly reflect the reasons and have not been taken out. Except for the case of the summing up or direction to a jury, a wide latitude is given to judicial officers to refine their ex tempore reasons. Litigants will not be heard to complain about the modifications made between delivery and the release of the certified text. It is obviously essential for each judicial officer to be familiar with the rules of court governing the delivery of reasons. Such rules may contain particular requirements which limit the power of the judicial officer to alter the transcript or to deliver reasons on a date different from that on which the orders were made."

43 The rule of practice is usually referred to in the context of ex tempore judgments. However, I do not believe it to be so confined.

44 The matter has also been considered judicially. In Lam v Beesley (1992) 7 WAR 88 Owen J said at 93-94:

"So far as concerns reasons given orally and later transcribed, the judicial officer has the right to edit the document and correct errors of grammar and style. The difficulty lies in determining the extent to which he or she can go beyond this and make changes of substance rather than of form.

In Bromley v Bromley (No 2) [1965] P 111, the Court of Appeal commented on this problem ... Willmer LJ said (at 114):

...

`... If there were ever a case in which it could be shown that, after delivering judgment and after the drawing up of the order, the judge had in substance rewritten his judgment, so as to put a completely different complexion on the issues in dispute, then I apprehend that this court would not be slow to censure any such behaviour on the part of the judge ...'

... Danckwerts LJ [said] at 116... :

`The general principle must be that this court must accept as the authentic record of the judge's judgment that which has been approved by him after consideration of the draft produced by the shorthand writer. It is not only a question of possible mistakes by shorthand writers, who do their best extremely well, but are sometimes unable to hear exactly the words used by the judge in the course of his judgment. There are other cases which arise through the judge not saying clearly what he meant, or indeed sometimes by a slip saying something which he cannot possibly have meant. After all, an ex tempore judgment is not always easy to deliver perfectly in all respects on the spur of the moment; there must be corrections which need to be made so as to give the real meaning of the judge, and he is perfectly entitled, so it seems to me, not only to correct mistakes, but to alter words which do not express his intended meaning at the time when he uttered them.'"

45 Owen J concluded at 95 that if changes to a judgment were matters "such as could lead to an appearance of altered substance" as opposed to matters of form, that was sufficient, in the context of a criminal trial, to render a conviction unsafe and unsatisfactory.

46 Lam v Beesley involved the reasons for judgment given by a magistrate in a summary criminal trial. In a civil action, I would consider that the appropriate test in determining whether an alteration to a judgment is permissible is whether the change is one of substance in fact and not the higher test stated by Owen J in the case of a criminal trial.

47 In Bar-Mordecai v Rotman & Ors [2000] NSWCA 123, the Court considered the matter in relation to an ex tempore judgment, stating at para 193:

"It is always possible, indeed proper, for a judge to revise ex tempore reasons. So long as the substance of the ex tempore reasons is not altered, nor the orders which they sustain, there is no bar to revision, even if it is extensive."

48 Again, I am of the opinion that the same rule applies to the case of a reserved judgment.

49 To determine whether his Honour's insertion of the `finding' that he did not accept Mr Fefelov as an accurate witness transgresses the permissible limits of alterations to a judgment, it is necessary to determine whether the addition was one of form or of substance. Reference should first be made, however, to the statutory framework in which a judgment may be given. Part 2A, r 7 of the District Court Rules 1973 (NSW) provides:

"(1) Where in any proceedings a Judge reserves his judgment or his decision on any question of fact or law, he may -

(a) give his judgment or decision --

(i) in court at the proper place in relation to those proceedings;

(ii) in court at any other place at which he is authorised by the Act or the rules to hear or dispose of those proceedings; or

(iii) in chambers in accordance with rule 6 ..."

50 In Palmer v Clarke at 165, Kirby P pointed out the need for strict compliance with the statutory framework. The `slip rule' aside, there is nothing in the District Court Act 1973 (NSW) or Rules, and in particular nothing in r 7 which permits the revision of judgments by a judge of an inferior court, although it is a well used convention. It was not suggested in this case that the slip rule applied. Although there is no direct authority on point and no express power in the Act or Rules conferring the right to revise judgments, it would be strange if there was such a rule in relation to ex tempore judgments and none in respect of reserved judgements given orally, where the same infelicities of expression and the like may easily occur. Accordingly, I am of the view that there is a power to revise a judge's reasons for decision, within the parameters I have discussed, implied within the statutory provisions which govern the delivery of judgments in the District Court. As to the existence of implied powers of statutorily governed tribunals: see DPP v Shirvanian (1998) 44 NSWLR 129.

51 How then should the addition of his Honour's finding on Mr Fefelov's credit be categorised. On one view, the addition could be seen as a mere formality - something overlooked by the trial judge when giving his oral reasons. The finding did not change his Honour's ultimate finding. Rather, it was wholly consistent with it and therefore, it could be argued, could not have come as a surprise.

52 There are arguments which tend to the opposite conclusion. In the first place, it was a critical finding. The rejection of Mr Fefelov as a witness of truth was an essential underpinning of his Honour's finding against the appellant. Secondly, had that finding not been made, the appellant could have rightfully complained that his Honour had failed to adequately consider relevant evidence in the case, namely, that of his corroborative witness. Those two matters alone, in my view, point persuasively to the additional statement in the judgment being one of substance and therefore impermissible.

53 Where a judgment has had impermissible alterations made to it, the proper approach is to treat the judgment as if the additions had not been made: see Palmer v Clarke at 170. Accordingly, the judgment should be considered as if that finding was not contained in it. The consequence is that his Honour's reference to Mr Fefelov's evidence went no further than saying he gave evidence which corroborated the appellant's evidence. I have already indicated what flows from that. His Honour failed to give it adequate consideration in its essential parts and/or failed to give adequate reasons for decision.

54 If I am wrong in my conclusion that the credit finding relating to Mr Fefelov was one of substance, and it should be viewed as a matter of form and thus remain as part of the judgment, I am of the opinion that his Honour's judgment would still not satisfy the requirement to give adequate reasons for decision. As Kirby P pointed out in Palmer v Clarke at 170:

"... bald findings on credit, where there remain substantial factual issues to be dealt with, may not constitute an adequate compliance with the judge's common law duty to provide the parties, and the appellate court, with the basis of his decision."

55 In this case it is impossible to discern why his Honour rejected Mr Fefelov, although one might speculate that it was to make his judgment consistent, given his finding in relation to the appellant's credit. However, it is not part of the judicial function to speculate. At the appellate stage it is to determine whether there has been appealable error. For the reasons stated, his Honour's bald finding of credit involved such error.

Credit Finding of the First Respondent

56 That leaves the final matter with which I wish to deal. His Honour accepted the first respondent's version of the accident. He did so notwithstanding that he described the first respondent's behaviour in the witness box as "somewhat bizarre". He ascribed this however to a "cultural reaction to what he considered was an overall lack of candour by [the appellant] in relation to the facts and circumstances of this case". I have difficulty with this finding. That of course is not sufficient to displace it. As the High Court (Brennan, Gaudron, McHugh JJ) stated in Devries 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. If 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'."

57 I do not think that the evidence of the telephone number can be considered to be an incontrovertible fact. The ambulance report probably is. But in any event when both those pieces of evidence are considered along with the other evidence in the case, including the first respondent's evidence that the appellant took a 22 ft ladder and placed it at a 45 degree angle underneath a finished ceiling and that the appellant appeared "perfectly well" after the fall, I consider that the first respondent's account of events was "glaringly improbable".

58 There were other matters raised in argument which concerned his Honour's credit findings, including interpreting difficulties. I do not find it necessary to consider those matters. I have found that his Honour erred in a number of respects in his judgment. The nature of the errors is such that a new trial is required. For that reason also it is not necessary to consider the ground of appeal that his Honour failed to consider the claim made under the Construction Safety Act.

59 At the conclusion of the hearing, senior counsel for the respondents made an application that, if the Court was minded to allow the appeal and order a new trial, then the appropriate order for costs was that the costs of the appeal should abide the outcome of the new trial. The basis for that application was that since the appellant had failed at first instance and might fail again it was proper that the costs of this appeal should depend upon the outcome of the new hearing. The decision of the High Court on a leave application in Fuller v The Council of Wagga Wagga S247/1999 (14 September 2001) was said to support the making of such an order. The appellant opposed the making of such an order.

60 Both parties have filed supplementary submissions. As the respondents recognised in their submissions, Fuller involved quite different circumstances from the present. Having considered both sets of submissions, I do not see that this case falls into the same category of case as Fuller or that Fuller establishes a principle which should be applied here. In those circumstances, I consider that costs should follow the event.

Orders

(i) Appeal allowed;

(ii) The judgment of Delaney DCJ be set aside;

(iii) The matter be remitted to the District Court for a re-hearing before a judge other than Delaney DCJ;

(iv) Costs of the first trial to abide the result in the second trial;

(v) Respondent to pay the appellant's costs of the appeal, but is to have a certificate under the Suitors' Fund Act 1951 (NSW) if so qualified.

61 SPERLING J: I have had the advantage of reading in draft the judgment of Beazley JA and a note by Powell JA agreeing with her. I also agree with the orders proposed by Beazley JA. Substantially, I agree with her reasons, but with some qualifications.

62 First, as to the addition to the judgment of the finding "I do not accept Mr Fefelov as an accurate witness", his Honour may have already decided when he delivered the judgment that he rejected Mr Fefelov as a credible witness, and the failure to include that finding may have been a slip. I would not assume it was an afterthought. I agree, however, with Beazley JA's opinion that there was a failure to give adequate reasons for the finding.

63 Secondly, I would not regard the first respondent's version of events as glaringly improbable. The first respondent gave evidence of the plaintiff placing a long ladder against a wall at the unusually oblique angle of 45 degrees, placing himself on the ladder, then jumping or tumbling under it, and pulling the ladder down onto himself. There was other detail in the first respondent's account of the incident to indicate that the accident was contrived. What the first respondent described was glaringly improbable as an accident, but the point of his evidence was that it was a contrived performance by the appellant, the pretence of an accident on which to base a fraudulent claim for damages.

64 There were then, however, considerations which tended to render implausible that an accident was contrived by the appellant in the way described by the first respondent. There was already a ladder in place, being the ladder from which the plaintiff says he fell, which was not tied in position and which the plaintiff could easily have used to feign an accident in much the same way. There was accordingly no apparent need for the appellant to obtain a second ladder and to set it up as he allegedly did. Secondly, it was unlikely that the appellant would have set up a patently non-industrial situation in order to create the pretence of a genuine accident. Yet, according to the first respondent's account of the episode, the appellant placed a 22 foot extension ladder in a position where it could have served no genuine purpose. Thirdly, according to the first respondent, the appellant went through the motions of a contrived accident in front of the first respondent without any reason to suppose that the first respondent would support the appellant's claim that the accident was genuine.

65 I think these considerations fell short of rendering the first respondent's account glaringly improbable, but there was a serious lack of critical evaluation by the trial judge of the first respondent's account of events, particularly when it amounted to a conspiracy to defraud on the part of the appellant and Mr Fefelov. To accept the first respondent's account of events virtually without reasons was an error of law in these circumstances.

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LAST UPDATED: 21/11/2001