UCPR: Ambush stunt at trial comes at a heavy price

Allianz Australia Insurance Limited v Mashaghati [2017] QCA 127

The President of the Court of Appeal (with whom McMurdo JA and Applegarth J agreed) had no hesitation in ordering a new trial for an ambush stunt conducted during the trial of a personal injury claim.

The claim involved the assessment of damages and in particular the effect of an alleged brain injury as a consequence of the motor vehicle collision, the subject of the claim.

The plaintiff gave evidence by video link because he resided overseas and was not permitted to return to Australia. The stunt involved two expert witnesses (Dr Matthew and Ms Anderson) called on behalf of the plaintiff, sitting in on the plaintiff’s video evidence for the purpose of facilitating further reports about the effect of the alleged brain injury. However, the defendant’s legal representatives were not informed about this.

The expert reports were subsequently sought to be tendered, despite not complying with rule 548(4) (Statement of Loss and Damage) or the defendant not having the opportunity for their expert to sit in on the plaintiff’s evidence.

The defendant objected and sought an adjournment, which was denied by the trial judge.

The reasons for allowing the appeal and ordering a new trial were extensive. In short, the failure of the plaintiff to comply with rule 548(4) or to provide “special reasons” as to why the reports should be allowed, together with the consequence of the denying procedural fairness to the defendant. It was found there was no reason for not allowing the adjournment and every reason for granting an adjournment.

Sofronoff P

[54] It can be seen that these rules, in combination, are directed towards
early and full disclosure of expert evidence in order to assist in
achieving either an early settlement of the claim that is the subject of
the proceedings or, if that cannot be done, then an efficient trial in
which the parties and the Court can concentrate upon the essential
issues only.

[55] Tactical surprise is thus avoided. On the other hand, relevant expert
evidence which has not been dealt with in accordance with the rules
may still be admitted in evidence if the interests of justice in ensuring
a fair trial require it. The power of the Court to grant leave to a party
to tender a non-compliant report or to permit oral evidence to be given
by an expert is unfettered by any express provision of the rules.
However, the discretion is informed by the purpose of the rules set out
in r 5, namely to facilitate the just and expeditious resolution of the
real issues in civil proceedings at a minimum of expense. The
discretion is also informed by r 5(2) which obliges the Court to apply
the rules with the objective of avoiding undue delay, expense and
technicality.

[56] Of course, these express provisions which guide the Court in the
exercise of discretion are subject to the overarching obligation of the
Court to ensure that a trial is fair.

[61] It has rightly been said that the spirit of these Rules that are applicable in personal injury cases is that they require the parties to put their cards on the table and, indeed, to put the cards on the table face up.[1]

[62] The insistence in these Rules upon timely and full disclosure of medical reports and evidence is shown by the restriction upon the Court’s discretion to permit the calling or the tendering of evidence which has not been identified in a party’s statement of loss and damage. Unlike rule 427, under which evidence might be used at trial despite non-compliance with Part 5 of Chapter 11 provided the Court, in the exercise of its unfettered discretion, gives leave, rule 548(4)(c) restricts the exercise of discretion to cases in which such an applicant has shown a “special reason” why non-compliant evidence should be admitted.

[63] The stricture of the Rules in these respects is demonstrated by the decision in Campbell v Jones.[2] In that case the plaintiff had been injured in a motor accident. She had claimed damages for gratuitous services in her statement of claim but her statement of loss and damage omitted any mention of them. Nevertheless, at the trial her counsel opened a claim for such damages. Counsel intended to lead oral evidence from the plaintiff herself and oral evidence from a witness about the cost of provision of services. The defendant objected to the tender of such evidence in reliance upon rule 548(4). The trial judge admitted the evidence because of the “narrowness of the claim, and its relative modesty”. After that ruling the plaintiff’s legal representatives gave the defendant’s legal representatives a copy of the witness’s proof of evidence. In fact, that proof had been provided by the witness to the plaintiff’s solicitors 10 days before the trial.

[64] McMurdo P held that, despite the wide discretion conferred by the Rule, the matters identified by the trial judge did not constitute a “special reason”.[3]

[65] Although the defendant did not suggest that it required an adjournment to meet the new evidence and although no apparent injustice to the defendant had been identified, and despite the fact that the claim had been pleaded, Fryberg and Mullins JJ agreed that the plaintiff had failed to demonstrate a special reason within the meaning of the Rules.

[66] In this case the expert evidence on both sides related to examinations of the plaintiff which had been undertaken in 2012 and 2013. No fresh reports had been prepared by the parties immediately before the trial. Undoubtedly this was because the plaintiff had been in Germany, unable to return to Australia because his visa had been cancelled. Having regard to the quantum involved in the case it would not have been economically practical to consider sending medical experts to Germany to examine the plaintiff.

[67] However, the relevant examinations were concerned with psychological injuries emanating from the shock of the accident itself or from physical brain injury. There was no suggestion that any proper examination could not have been conducted by video conference. In fact, the use by Dr Mathew and Ms Anderson of their observations of the plaintiff on a video stream precluded any such submission.

[68] It was for the plaintiff, the respondent in the appeal, to establish the existence of a brain injury and psychological injury as a consequence of the accident. The extant reports obtained by the plaintiff, and which had been disclosed in accordance with the Rules, established those facts at the date of the accident and the continuing effects of the injuries at the dates of examination in 2012. The defendant appellant had obtained corresponding reports which tended to establish that the head injury was minor, that there was no brain injury and that the psychological symptoms evidenced by the plaintiff were due to other stressors unrelated to the accident. Those opinions, being entirely negative, could not reasonably be improved upon by any further examinations closer to the trial. Nor had the plaintiff respondent provided any fresh reports prior to trial which might have motivated the defendant to obtain further reports from its own experts. The defendant had no reason to press for a fresh examination. It was forensically advantageous to proceed upon each party’s existing reports.

[69] However, in the circumstances of a trial like this one, during which the plaintiff himself was outside the jurisdiction and had been for some time, it is understandable that the plaintiff’s advisers would seek to supplement the reports which they had by some fresh opinions. What is not understandable is their omission to do so in good time before the trial. Even so, the procedure adopted here, inviting experts to observe the plaintiff giving evidence for the purpose of formulating a fresh opinion, might under many circumstances be justified so as to constitute a “special reason” for the admission of new evidence.

[70] In this case there was not merely the failure by the plaintiff to explain the omission to conduct an examination by video link prior to the trial. The crucial fact here is that this procedure was adopted behind the back of the defendant’s representatives. Dr Mathew has stated that he was contacted on the morning of the second day of the trial and invited by the plaintiff’s solicitors to attend Court “for the purpose of observing Mr Mashaghati’s state of mind”. He did so while the plaintiff’s representatives failed to disclose his presence to their colleagues representing the defendant.

[71] It is difficult to avoid the inference that the failure to disclose his presence was purely tactical. This inference is strengthened by the fact that disclosure was not only made after the plaintiff’s lawyers had actually received Dr Mathew’s new report and also only after Ms Anderson had concluded her own observations. Although Dr Mathew opined that there had been a “small reduction (improvement) in Mr Mashaghati’s permanent impairment”, he reaffirmed his opinion that the “most likely cause of this disturbance in Mr Mashaghati was the effect of an Acquired Brain Injury”. He emphasised that although Mr Mashaghati’s behaviour could be caused by Post Traumatic Stress Disorder, in his view this was “much less likely”. He thus advanced the respondent’s case.

[72] Dr Mathew’s report was dated 1 March 2016, the day upon which he was present in Court, but it was not delivered to the defendant’s legal representatives until the following day’s lunch adjournment. By the time it was disclosed and delivered, Ms Anderson had also fulfilled her brief by attending Court that morning. The appellant’s legal representatives had decided to receive a fresh report from her and informed the defendant’s legal representatives of that fact. By then the plaintiff’s evidence had been concluded and it was too late for the experts retained by the appellant to be retained to perform the same task.

[73] No explanation was offered to the learned trial judge for the failure to inform the appellant’s legal representatives about the respondent’s intention to instruct Dr Mathew and Ms Anderson to sit in Court to observe the plaintiff giving evidence. Nor has any explanation been offered to this Court for that failure.

[74] Notwithstanding these matters, the learned trial judge gave leave to the respondent to tender the fresh reports.

[75] For a number of reasons his Honour’s discretion miscarried. First, apart from a brief reference to rule 548, his Honour appears to have proceeded upon the basis that the applicable Rule was rule 427. Rule 427 is contained in Part 5 of Chapter 11 which deals generally with evidence given by experts. But it is Part 2 of Chapter 14 in which one finds the rules concerned particularly with personal injury and fatal accident claims. The difference is crucial. Rule 427 confers an unfettered discretion upon the Court to grant leave for a party to tender an expert’s report that has not been disclosed by a plaintiff within 90 days after the close of pleading. The relevant non-disclosure which triggers the obligation to seek leave is, therefore, a failure to disclose under rule 429. In this case, however, the relevant non-disclosure was a failure to disclose the report in the plaintiff’s statement of loss and damage as required under rule 547. The prohibition against the use of such a report is contained not in rule 427 but in rule 548(4). To overcome that absolute prohibition against admission into evidence an applicant for leave must establish a “special reason”. His Honour did not turn his mind to that issue and, consequently, did not find that any special reason had been established. This was a material error of law that vitiated the exercise of discretion.

[76] Second, the consequences for the appellant of admitting the evidence were serious. Dr Mathew was able to rely upon his contemporaneous observations to reinforce his earlier opinion that the respondent had suffered a brain injury. Ms Anderson likewise had regard to the respondent’s behaviour which she observed while he was giving evidence in affirming her earlier opinion. She said:

“Thus, in my view this additional behavioural observation (along with the cognitive test results previously reported which indicated some cognitive dysfunction) indicate that it appears more likely that he is suffering from the enduring effects of a traumatic brain injury.”

[77] The evidence sought to be tendered by the respondent was undoubtedly relevant and, apart from the effect of rule 548(4), admissible. It is rare for relevant and admissible evidence to be rejected. However, rule 548(4) has the effect that even such evidence must not be admitted unless the plaintiff can establish a special reason for its admission.

[78] The respondent’s legal representatives’ deliberate non-disclosure meant that those opinions, which were crucial to the outcome of the case, would, if the evidence was admitted, be placed before the learned trial judge for his consideration without the benefit of comment upon them by the appellant’s experts. It may be that the appellant’s experts would have agreed with these fresh opinions; it may be otherwise. In either case admission of this evidence not only denied the appellant an opportunity to meet new evidence by its own evidence but also denied the Court the benefit of such evidence. The learned trial judge failed to take this highly material consideration into account.

[79] Third, his Honour was of the view that, because it was known before the hearing commenced that the respondent’s credit would be the subject of a serious challenge by the appellant, and because the plaintiff and his representatives “were less equipped and were only left with the trial to meet what may first emerge during the plaintiff’s evidence” the plaintiff’s legal representatives were justified in the course they took.

[80] That is the case in any trial of any kind in which a witness’ credit is expected to be attacked. It cannot possibly constitute a basis for the exercise of discretion under rule 548(4). More importantly, while it is capable of explaining why the respondent asked its experts to observe the trial, it fails to address the fundamental question: why was the appellant not told?

[81] Fourth, in the learned trial judge’s reasons for admitting the evidence of Ms Anderson, his Honour observed, evidently as a factor in the exercise of his discretion, that Ms Anderson set out in her report the nature of the behaviour that she had observed and that he himself had had the same opportunity to observe the plaintiff. His Honour pointed out that the observations of Ms Anderson were the basis of her reasoning and resulted in her greater conviction that the respondent had suffered a mild brain injury. His Honour said:

“In due course the observations of the Court will be similarly recorded.”

[82] These remarks appear to comprehend that Ms Anderson’s fresh report has particular value to the decision making process because her opinions favouring the respondent’s case were based upon recent observations that she had made and which had been shared by the trial judge. Undoubtedly, the trial judge was placed in a very good position to assess her opinions by the advantage that he enjoyed in knowing precisely the features of the respondent’s behaviour upon which she relied because he had observed them himself. However, the problem with this as a rationale for the admission of the evidence is that it defines precisely the correlative disadvantage suffered by the appellant. Rather than constituting a basis upon which to admit the evidence, it constitutes a reason to reject it.

[83] The matters considered by the learned trial judge and which moved him to exercise his discretion to grant leave did not alone or in combination constitute a special reason.

[84] The reports having been admitted, they then figured significantly in his Honour’s reasons for giving judgment in favour of the respondent.

[85] There was a further problem in the conduct of the trial.

[86] Once the judge had made his decision to admit the evidence of Dr Mathew and Ms Anderson, counsel for the appellant applied for an adjournment. The application was opposed by counsel for the respondent. His Honour said that he understood that the basis for the application was the “unfairness in the absence of an opportunity to overcome the prejudicial nature of the evidence that’s sought to be adduced so that … your experts have a similar opportunity to observe the plaintiff and to meet with a like opinion that’s expressed on the other side”. The learned trial judge refused the application. He said:

“The point here, though, is whether an adjournment ought be granted to one party in circumstances where its pursuit of its case was properly anticipated by the other party so as to ensure that the respective experts fulfil their duty to assist the [C]ourt with the most contemporary of evidence. It seems to me that the defendant, having not either alerted their experts to the prospects of that pursuit, or those experts making an election not to similarly attend [C]ourt and observe the plaintiff as the plaintiff’s experts have done, is a matter for their own forensic consideration. And having made the election not to take that step, possessed of the expectation that it may be fruitful or otherwise, it seems to me is an election which ought not be likely ignored when it is now anticipated that it can be met by an adjournment.

The [C]ourt in these circumstances is not only bound by the particular events unfolding before it, but, rather, also consideration ought be given to the appropriate administration of justice in the [C]ourts and the circumstances surrounding this trial and the opportunities that the experts have to fulfil their duty to the [C]ourt. It seems to me that the content of the supplementary reports provides a basis for the defendant’s experts to make further comment and their absence from the [C]ourt is not unduly prejudicial. Further, having approached their duty to the [C]ourt as they have, whether with or without the provision of information from the pursuit of the defendant’s case, in my view, is a matter which weighs heavily against the exercise of the [C]ourt’s discretion to grant an adjournment. Ultimately, in my view, there is not sufficient prejudice that can’t be overcome by any diligent expert in the fields of psychiatry and clinical neuropsychology and, therefore, I refuse the application.”

[87] There are a number of errors in this reasoning. First, there was no occasion for the appellant’s legal representatives to have “alerted their experts to the prospects” of the respondents engaging experts to furnish reports upon the bases of facts that would be denied to their opponent’s experts. The Rules under which such litigation is conducted create a reasonable expectation that parties will not engage in conduct such as retaining medical experts to make secret observations with the intention of tendering late reports. There could be no possible point in doing so. If the expert’s views were affected adversely to the side retaining the expert, then rule 549(2) would require disclosure of the fresh opinion. If the opinion helped that party, as here, the fact would emerge when leave was sought to admit it and it would be reasonably expected that leave would be refused. The days of the well-plotted forensic ambush leading to victory have been well and truly over since at least the promulgation of Order 39 Rules 29A to 29E of the Rules of the Supreme Court 1900. These Rules first contained provisions similar to those now contained in Part 2 of Chapter 14 of the UCPR. No rational barrister would have expected his opponent to conduct the case in the manner in which this case was conducted for the respondent. There was no opportunity to make any election to mirror the respondent’s conduct. The conduct of the case on behalf of the respondent, insofar as it was open and in accordance with the Rules, gave no indication of the surprise which came later.

[88] Second, his Honour’s reference to the duty which experts owe to the Court is inapposite.

[89] Rule 426 provides as follows:

426 Duty of expert

(1) A witness giving evidence in a proceeding as an expert has a duty to assist the court.

(2) The duty overrides any obligation the witness may have to any party to the proceeding or to any person who is liable for the expert’s fee or expenses.”

[90] Experts occupy a special position as witnesses. With irrelevant exceptions, no other witness can give opinion evidence. An expert’s opinion often, perhaps usually, relates to disciplines that are unfamiliar to a judge hearing a case. Consequently, unlike the position of a witness of fact whose duty is merely to answer questions in a responsive way, an expert has a duty positively to assist the Court. This duty may require a level of candour and voluntary disclosure on the part of an expert that might involve prejudicing the case of the party that called the expert. Nevertheless, the duty to the Court, that is to say the duty to assist the Court in finding the truth of the matter, overrides any obligations owed to the party who pays the expert’s fees.

[91] However heavy these responsibilities might be, no expert has any obligation to consider whether he or she ought to attend a trial when neither party has made a request of the expert to attend. The “duty to assist the Court with the most contemporary of evidence” does not involve any requirement for an expert to initiate a search for facts without a retainer to do so. An expert never faces the need to make “an election” whether to attend Court and observe a witness giving evidence in order to be able to provide an opinion based upon such observations unless retained to attend. An expert’s duty, in circumstances where the examination of a party took place a long time ago, would end, depending upon the circumstance of a case, at the point at which an expert informs the judge that the expert’s opinions are limited by reason of the inability to have made a more recent examination. There is no obligation for an expert to instigate a new or further investigation.

[92] Consequently, the learned trial judge was in error in thinking that the appellant’s legal representative’s failure to require its experts to attend Court or the experts’ own failure on their own initiative to do so justified a refusal of an adjournment.

[93] Third, his Honour’s view that any prejudice could be overcome by “any diligent expert in the fields of psychiatry and clinical neuropsychology” failed to address the nature of the prejudice that resulted. It was, as his Honour himself observed, that Ms Anderson, had:

“… set out the nature of the behaviour that she observed and its consistency with that which she observed when she was consulting with the plaintiff in her rooms for the purposes of her earlier report.

Ms Anderson sets out, in my view, the basis of the opinion by reasoning and identification of the assumptions from her observations that she relies upon. She’s indicated that more weight as a result of her observations could be placed upon an attribution of that behaviour to mild brain injury rather than a psychiatric condition alone.”

[94] These observations made by Ms Anderson, which his Honour was also able to make, were the very observations denied to the appellant’s experts. That denial could not in any way be overcome by the application of mere intellectual power.

[95] As a consequence, the matters that his Honour took into account did not constitute a basis upon which to refuse to grant an adjournment. Rather, they constituted a reason to grant one.

[96] In addition, there were other reasons which required an adjournment to be granted if, as his Honour considered, leave should have been granted to the respondent to tender the reports.

[97] First, there was no urgency about the matter. This can be seen by the fact that immediately after the parties closed their respective cases, on the same day upon which his Honour refused the appellant’s application to adjourn was dismissed, the trial was adjourned for a number of weeks to enable the parties to submit written outlines of argument. Nor did the respondent himself raise any practical reason why an adjournment could not be granted.

[98] The refusal to adjourn was wrong for another, more fundamental, reason.

[99] It has already been observed that it would be a rare case in which, absent a statutory provision, evidence which is relevant and admissible would not be admitted. In Jones v National Coal Board[4] the English Court of Appeal constituted by Denning, Romer and Parker LJJ said:

“There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge … No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”[5]

[100] In International Finance Trust Co Ltd v NSW Crime Commission[6] Heydon J described the kind of hearing or trial which our system of justice requires. The character of a trial that will constitute a hearing of the kind expected is one at which:

“… both parties have an opportunity to tender evidence relating to, and advance arguments in favour of, the particular orders they ask for. This aspect of the rules of natural justice pervades Australian procedural law. It has several justifications, and their force is so great that exceptions to the hearing rule in judicial proceedings are very narrow.

One justification is that the forensic system employed in the courts of this country in civil proceedings for remedies having substantive consequences is adversarial. Ex hypothesi, it is not possible for a court to operate an adversarial system without the court having the evidence and arguments which each adversary wants to have considered. If the hearing rule were different, the system would be internally contradictory.

Another justification is that to act only on the version advanced by one adversary is to risk reaching unsound conclusions, and thus to risk both injustice and inefficiency. Experience teaches that commonly one story is good only until another is told. Where a judge hears one side but not the other before deciding, even if the side heard acts in the utmost good faith and makes full disclosure of all that that side sees as relevant, there may be considerations which that side had not entertained and facts which that side did not know which, if brought to the attention of the judge, would cause a difference in the outcome.

“The person most likely to have thought of cogent considerations, and to know the relevant facts, is the person whose interests are in jeopardy, that is the party opposing the decision. Therefore we shall avoid bad decisions best if we ensure that each potential decision, before it is finally decided, is exposed to what is likely to be the strongest possible criticism of it.”

Thus, hearing both sides before deciding tends to quell controversies and discontents. As Megarry J said in John v Rees:

“It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. ‘When something is obvious’, they may say, ‘why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.’ Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”

Of the last sentence Lord Hoffmann has observed: “Most lawyers will have heard or read of or even experienced such cases but most will also know how rare they are. Usually, if evidence appears to an experienced tribunal to be irrefutable, it is not refuted.” Perhaps both Megarry J and Lord Hoffmann are guilty of a little exaggeration. But even if Lord Hoffmann’s reasoning is completely correct, it does not destroy Megarry J’s point.”[7]

(Footnotes omitted)

[101] AON Risk Services Australia Limited v Australian National University[8] did not, insofar as it expressed limitations upon a party’s entitlement to amend a pleading, bear upon the dicta of Heydon J that have been quoted. Rather, the two cases stand for the proposition that a just resolution of proceedings remains the paramount objective[9] and that while speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution, these factors must not detract from a proper opportunity being given to the parties to put their case. The scope of such an opportunity will be limited by a consideration of delay and cost in any particular case.[10] In this case, however, cost and delay were not factors.

[102] It is not possible to identify any reason why an adjournment should have been refused once the respondent had been allowed to tender the new reports. The adjournment that was sought was one to determine whether the appellant’s experts could offer any further evidence to deal with the respondent’s new reports. The period for which the adjournment was sought was not specified. No doubt this failure to state the period of the adjournment sought was not helpful to the learned trial judge’s consideration of the application, but that was not the reason for refusing.

[103] The considerations identified by Heydon J in International Finance were highly relevant.

[104] The refusal of the adjournment constituted, in the circumstances of this particular case, a denial of procedural fairness to the defendant.

[105] In Stead v State Government Insurance Commission[11] the trial judge stopped counsel for one of the parties making closing submissions about why the judge ought not accept the evidence of a medical expert. The trial judge informed counsel that it was not necessary for him to develop the submission because the judge had already decided not to accept the evidence of that witness. The trial judge reserved his decision for a long time and, evidently having forgotten that he had formed that opinion, and that he had expressed it, and that he had stopped counsel from addressing him upon it, he then decided the case partly upon the basis of an express acceptance of that witness’s evidence.

[106] A unanimous High Court held that the question whether a trial was unfair because a party had not been given an opportunity to put its case before the judge depended upon whether the further information could possibly have made a difference. A new trial would not be ordered if it “would inevitably result in the making of the same order as that made by the primary judge at the first trial”.[12]

[107] Their Honours said:

“Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. …

… when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to be a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.”[13]

[108] A fortiori the difficulty is even greater when the issue concerns the effective refusal to permit the tender of relevant facts upon which submissions would later be made.

[109] In this case it is simply impossible to conclude that the evidence that might have been obtained by the appellant and which might have been led, which related to a crucial issue in the case, could not possibly have made any difference to the outcome. As stated earlier in these reasons, the learned trial judge actually relied expressly upon the fresh evidence led by the respondent in drawing his conclusion that the respondent had suffered a brain injury and that the effects of that brain injury warranted substantial damages.

[110] For this reason alone a new trial is warranted.

[111] The issues so far discussed comprised only one of the grounds of appeal relied upon by the appellant. However, counsel for both parties accepted that success for the appellant on this ground would justify an order for a retrial and that it would be unnecessary and undesirable for the Court to express any views about the remaining grounds.

[112] The respondent cross-appealed to challenge the award of damages. Having regard to the proposed order for a re-trial, I would dismiss the cross-appeal.

David Cormack – Brisbane Barrister & Mediator

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