Corliss v Gibbings-Johns [2010] QCA 233

SUPREME COURT OF QUEENSLAND CITATION: Corliss v Gibbings-Johns [2010] QCA 233 PARTIES: DENNIS BRUCE CORLISS (defendant/appellant) v TERRY EDWARD GIBBINGS-JOHNS (plaintiff/respondent) FILE NO/S: Appeal No 2946 of 2010 SC No 76 of 2008 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court of Rockhampton DELIVERED ON: 31 August 2010 DELIVERED AT: Brisbane HEARING DATE: 12 August 2010 JUDGES: Holmes and Chesterman JJA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDERS: 1. The appeal be dismissed; 2. The appellant pay the respondent’s costs of and incidental to the appeal to be assessed on the standard basis. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – POINTS AND OBJECTIONS NOT TAKEN BELOW – WHEN NOT ALLOWED TO BE RAISED ON APPEAL – where appellant was a publican of a hotel – where respondent had sought entry into the appellant’s hotel after it had closed – where the respondent broke one of the hotel’s windows – where respondent claimed that, after he broke the window, the appellant threw a glass object into the respondent’s face causing a penetrating eye injury – where appellant denied having thrown any object at the respondent – where trial judge concluded that the appellant threw a glass object that injured the respondent’s eye – where appellant sought to rely on statutory defences on appeal – where statutory defences not raised on the pleadings or in argument at trial – whether appellant should be allowed to rely on statutory defences DAMAGES – PERSONAL INJURIES – statutory exclusion from claiming damages because of commission of indictable offence – where the respondent pleaded guilty to a charge of “wilful damage” -- 1 of 17 -- 2 APPEAL AND NEW TRIAL – APPEAL - GENERAL – PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – where appellant claimed two witnesses had been present at the time of the incident – where witnesses’ accounts, if truthful, exonerated appellant – where neither witness gave statements to police in a criminal investigation into the appellant – where trial judge had regard to the fact that appellant did not strive to have the witnesses’ accounts given to police – whether primary judge wrongly instructed himself as to the evidence Civil Liability Act 2003 (Qld), s 4, s 45 Criminal Code Act 1899 (Qld), s 6(2), s 469, s 659 Regulatory Offences Act 1985 (Qld), s 7 Uniform Civil Procedure Rules 1999 (Qld), r 149, r 157 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33, cited Electricity Commission of New South Wales v Yates (1991) 30 NSWLR 351, cited Gibbings-Johns v Corliss [2010] QSC 49, cited Robinson v Campbell (No 2) (1992) 30 NSWLR 503, cited Ross v The Queen (1979) 141 CLR 432, [1979] HCA 29, considered Sangha v Baxter [2007] NSWCA 264, cited Sangha v Baxter (2009) 52 MVR 492; [2009] NSWCA 78; cited Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12; applied University of Wollongong v Metwally (No 2) (1985) 60 ALR 68; [1985] HCA 28, applied COUNSEL: D P O’Gorman SC for the appellant S C Williams QC, with G F Crow, for the respondent SOLICITORS: Suthers Lawyers for the appellant Macrossan & Amiet for the respondent [1] HOLMES JA: I agree with the reasons of Applegarth J and with the orders he proposes. [2] CHESTERMAN JA: I agree with Applegarth J, that the appeal should be dismissed with costs, for the reasons given by his Honour. [3] APPLEGARTH J: The trial judge found that the appellant threw a glass object into the respondent’s face and thereby caused a penetrating injury to his eye. The respondent obtained judgment for $196,152 against the appellant in a proceeding that claimed damages for “battery and or assault”. The only liability issue in dispute at trial was whether the respondent suffered the injury to his eye because the appellant threw a glass object at the respondent. The appellant denied having thrown any object at him. -- 2 of 17 -- 3 [4] In this appeal the appellant seeks to raise liability issues that were not pleaded, argued or considered by the trial judge. These relate to the possible application of s 6(2) of the Criminal Code Act 1899 (Qld) and s 45 of the Civil Liability Act 2003 (Qld). The appellant appeals on the ground that the primary judge “erred in failing to consider whether his finding as to the respondent’s conduct enlivened sub-section 6(2) of the Criminal Code Act 1899 and/or section 45 of the Civil Liability Act 2003”. But in circumstances in which the factual elements of any defences arising under those sections were not pleaded and particularised, and the possible application of those alleged defences was not raised, the judge was under no obligation to consider them. The judge’s duty was to determine the issues in dispute between the parties, not issues that the appellant failed to raise. The contention that the judge erred in failing to consider the possible application of these provisions is without merit. The issue of substance concerning suggested defences under s 6(2) of the Criminal Code Act and s 45 of the Civil Liability Act is whether the appellant should be permitted to raise on appeal points that were not raised at trial. [5] The second ground of appeal that was pursued by the appellant relates to two witnesses who were called by the appellant at trial, and observations made by the judge about the fact that statements from these witnesses were not provided to the police. Background [6] In May 2005 the appellant was the publican of the Grand Hotel at Childers. On the night of Friday, 6 May 2005 the respondent had been drinking at another hotel, having commenced drinking there at around 8.00 pm to 9.00 pm. He left that hotel in a heavily intoxicated state after it closed at around midnight. He walked to the vicinity of the Grand Hotel which had closed. What happened next was disputed at the trial. The judge considered the versions of several witnesses and criticisms made of those witnesses. [7] In essence, the respondent’s evidence was that: • as he was walking home he saw the appellant through a window of the Grand Hotel and he asked the appellant to be let in; • he was then leaning against the window, which was in an open position, when the appellant verbally abused him; • he responded to the appellant’s abuse by slapping the window frame with the palms of both hands; • the window above him shattered and fell in front of him; • he stood back from the window and he then observed the appellant throw a pot glass that had been resting on his knee straight at him through the window, striking him in the face and injuring him. [8] In essence, the appellant’s evidence was that: • the first he knew of the respondent’s approach to the hotel was when he heard a loud kicking of the front door after he closed the hotel for the night; • the doors and windows of the hotel were shut and the blinds over the windows were drawn; -- 3 of 17 -- 4 • an object thrown through a window of the hotel smashed a pane of glass in the window as a result of which he was cut on the ear; • the blind over the window was forced into the hotel and up sufficiently to allow him to observe the respondent standing outside; • the respondent then head-butted the remaining glass around the window frame; • he did not throw anything or shout abuse at the respondent. A witness who the judge found to be an impressive witness and who seemed independent of the parties, Mr Leavey, said that he left the Grand Hotel after closing, and heard arguments with a lot of swearing between the appellant and the respondent. Mr Leavey described what he then saw: ‘I was probably about 30 metres away from the front of the pub, talking with a couple of friends, and I heard a bit of a scuffle happening out at the pub, and I turned around and seen – seen Terry hit the pub window, and it - it collapsed down and broke the window, and then I - seen what looked like a pot glass. I didn’t see who threw it, but I seen it come out of the window and hit Terry in the face, and yeah, that’s when Terry grabbed his eye, and then the police arrived shortly after that.” Mr Leavey’s recollection was that the respondent was a couple of paces back from the window when he was struck by the thrown glass. He estimated that eight to ten seconds elapsed between the respondent hitting the window and being hit by the glass. [9] Only one challenge is made to the judge’s findings of fact. To place that matter in context it is necessary to summarise the judge’s assessment of the versions of the several witnesses called on each side and his reasons for rejecting the appellant’s case that he did not throw a glass object at the respondent. If the respondent’s evidence had not been supported by other testimony then the primary judge would not have been persuaded to find for the respondent, bearing in mind the nature of the alleged act and the seriousness of a finding that the appellant threw a glass object into the face of the respondent. However, the primary judge found the testimony of three witnesses called by the respondent to be persuasive. Each witness said that he had seen an object fly through the window of the hotel and strike the respondent, with the respondent immediately reacting to being hit. There was no reason to think that these three witnesses “got their heads together to concoct an account”. 1 The accounts of these witnesses were broadly consistent in other ways, such as hearing a significant verbal altercation between the parties, followed by an object being thrown. Each denied seeing the respondent head-butt the window, as the appellant claimed that he did. Each saw the respondent react as if injured when struck. [10] Having concluded that the evidence of these three witnesses was persuasive after taking account of submissions made by the appellant’s trial counsel, the judge turned to consider the appellant’s witnesses and their accounts. He dealt with nine separate matters. One of them is the subject of the appellant’s second ground of appeal. It relates to the appellant’s wife and her friend, Ms Bell, who gave evidence 1 Gibbings-Johns v Corliss [2010] QSC 49 at [49]. -- 4 of 17 -- 5 in the appellant’s case. Ms Bell was staying at the hotel that evening as the guest of the appellant and his wife. On occasions she would stay at the hotel for no charge and assist in cleaning up after closing time. Her evidence was that she heard a commotion and banging at the front door. She heard crashing and saw a stubbie come through the window. She said that the appellant threw nothing through the window, but recalled a verbal confrontation between the parties after the window was smashed. She also gave evidence of seeing the respondent head-butting a brick area, a window sill and the window where there was a shard of glass. [11] The respondent’s wife gave evidence that she observed a banging or kicking at the front door of the hotel, that her husband went to a window to see what was amiss and that as he approached the window a stubbie came through it and struck him. She gave evidence that she observed the respondent strike the window with his head on more than one occasion, breaking the glass. She said that her husband did not throw any object through the window, and denied that he entered into any argument with the respondent or shouted abuse at him or raised his voice to him. [12] The judge made the following observation, which is challenged in the appellant’s second ground of appeal: “It is striking that even though the defendant faced a criminal charge arising out of his conduct that evening, neither his wife nor Ms Bell provided statements to the police. If Ms Bell was an eye witness, and on their accounts that was obviously known to the defendants to have been so, it is difficult to understand why she was not advanced as someone the police should interview. She not only would have exonerated the defendant, but would have provided evidence that a principal witness against the defendant – Mr Henderson – was not present. Ms Bell says that she was at all times unaware that the defendant faced criminal charges. Similarly Mrs Corliss has Mr Henderson as not present. I find it inexplicable that the defendant would not have striven to ensure that the police had their accounts.” [13] The several other aspects of the judge’s assessment of the appellant’s witnesses included the following: • Every witness, save for one who quit the area once the window was smashed by the respondent, related that there was a significant verbal altercation between the parties, but the appellant and his wife denied it. • Ms Bell failed to inform the court of the head-butting of the window until her re-examination. • A witness claimed that he was told by the appellant that the DVD surveillance had been deliberately destroyed by him, whereas the appellant said that the camera in the bar had proved faulty on several occasions and had been repaired but to no avail. However, there was no documentary proof of repairs or other evidence to support the appellant’s account of a continuing failure of the camera. • The appellant’s account of events to the police was not entirely consistent with his account at trial. • The appellant and his wife gave an account of the blind over the window being down whereas every other witness said the blind was in the raised position. -- 5 of 17 -- 6 • The only witnesses to support the appellant’s case that the respondent head-butted the window frame was the appellant’s wife and their friend, Ms Bell, who failed to mention the matter in her evidence in chief. • The notion that the respondent was injured by shards of glass from his smashing of the window was not supported by witnesses, including a medical practitioner. • It is difficult to accept that the two independent witnesses called by the respondent would not have seen and recalled the head-butting of the window if it had occurred. • The appellant’s claim to have evicted one of the respondent’s witnesses earlier that evening was not supported by other evidence. [14] Having assessed the evidence of the several witnesses who were called on each side, the judge made the following observation, which assumes some significance in considering the appellant’s attempt to raise new points on appeal: “I have not resolved the conflicts in the evidence concerning how the window was broken by the plaintiff and the nature of the object thrown by the defendant. I do not think it essential to do so. The manner of the breaking of the window is only a peripheral matter and in my view its resolution does not have the consequence that Mr Grant-Taylor contended for.” 2 [15] After considering whether it was more likely that the appellant’s injuries would have been caused by a pot glass rather than an ashtray, the primary judge reached the following conclusion: “None of the matters that I have discussed, when taken in isolation, would be sufficient of itself to tip the probabilities the plaintiff’s way. But taken together, and with the findings I have made as to the reliability of the plaintiff’s witnesses, they justify the conclusion that the plaintiff has discharged the onus on him of establishing that the defendant threw a glass object into his face and thereby caused the penetrating injury to his eye. In reaching that conclusion I have borne in mind the nature of the acts in question and the seriousness of their consequences for the defendant: see Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171.”3 [16] In summary, the primary judge’s conclusion that the appellant threw a glass object into the respondent’s face did not turn upon the observations that he made to the effect that it was striking that statements from the appellant’s wife and Ms Bell were not provided to the police even though the appellant faced a criminal charge. This was one of many matters which, taken together, persuaded the judge to reject the appellant’s case. Moreover, his finding that the appellant threw a glass object into the respondent’s face was reached on the basis of the reliability of the respondent’s witnesses. The points not raised at trial, but raised on appeal [17] Section 6 of the Criminal Code Act 1899 (Qld) relates to civil remedies. Sub-section 6(2) of the Criminal Code Act provides: 2 Ibid at [60]. 3 Ibid at [62]. -- 6 of 17 -- 7 “A person who suffers loss or injury in, or in connection with, the commission of an indictable offence of which the person is found guilty has no right of action against another person for the loss or injury.” [18] Section 45 of the Civil Liability Act is within Part 4 of Chapter 2. That Part is headed “Exclusion from claiming damages because of particular behaviour”. Section 45 is the only section within Division 1, which relates to “Criminal behaviour”. It provides: “45 Criminals not to be awarded damages (1) A person does not incur civil liability if the court is satisfied on the balance of probabilities that – (a) the breach of duty from which civil liability would arise, apart from this section, happened while the person who suffered harm was engaged in conduct that is an indictable offence; and (b) the person’s conduct contributed materially to the risk of the harm. (2) Despite subsection (1), the court may award damages in a particular case if satisfied that in the circumstances of the case, subsection (1) would operate harshly and unjustly. (3) If the court decides to award damages under subsection (2), the court must assess damages on the basis that the damages to which the injured person would be entitled, apart from this section, are to be reduced, on account of the injured person’s conduct, by 25% or a greater percentage decided by the court to be appropriate in the circumstances of the case. (4) It does not matter whether the person whose conduct is alleged to constitute an indictable offence has been, will be or is or was capable of being proceeded against or convicted of an indictable offence. (5) If the person has been dealt with for the offence, it does not matter whether the person was dealt with on indictment or summarily.” [19] The appellant has not made evident, for instance in the form of a draft amended pleading, the respects in which either of these sections would have been relied upon if they had been raised at trial. For example, it is not apparent which facts, matters and circumstances would have been pleaded and particularised in support of the allegation that the respondent’s eye injury was suffered “in connection with” the commission of an indictable offence of which the respondent was found guilty, so as to support a defence based upon s 6(2) of the Criminal Code Act. It would not have been sufficient for the appellant to simply plead such a defence in the terms of the section. He would have been required to plead and prove all of the material facts on which he relied and to include particulars necessary to enable the respondent to plead, and to define the issues for and prevent surprise at, the trial. 4 4 Uniform Civil Procedure Rules 1999, rr 149, 157. -- 7 of 17 -- 8 Submissions about raising the statutory defences on appeal [20] It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. As Gibbs CJ, Wilson, Brennan and Dawson JJ stated in Coulton v Holcombe: 5 “If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.” A point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below.6 The appellant accepts this general principle, but submits that this is a case where: (a) all the relevant facts have been established beyond controversy; and (b) it is difficult to envisage any additional evidence that could have been given or called at the trial that could have prevented either or both of the defences succeeding. The appellant relies upon the fact that the primary judge found that the respondent “had provoked the incident by attacking the hotel for no good reason”, 7 and that the appellant “reacted on the spur of the moment to the attack on his hotel.” 8 These findings of fact were said to be sufficient to establish that the respondent’s eye injury was “in connection with” the commission of an indictable offence of which the respondent was found guilty, so as to establish a defence under s 6(2) of the Criminal Code Act and to also support a defence under s 45 of the Civil Liability Act. The appellant submits that the relevant facts are established, and that the application of these provisions involves only an issue of legal characterisation. [21] In response, the respondent submits that the appellant should not be permitted to raise these asserted grounds of defence. He submits that the appellant made the tactical choice to defend the claim on the ground that the alleged assault simply did not happen. No explanation has been given as to why the points of defence that the appellant now seeks to raise were not pleaded and argued at trial. The appellant was represented at trial by experienced Senior Counsel, and there is no suggestion that the points were overlooked. The respondent submits that the appellant is bound by the manner in which he chose to conduct the trial, and that the respondent could and would have led evidence with respect to the statutory defences if he had been given an opportunity to do so. He contends that he would, in any event, have relied upon s 45(2) of the Civil Liability Act, and called evidence to ensure that the Court gave consideration to the factors justifying the exercise of the discretion conferred by s 45(2). [22] The respondent points to the fact that in the absence of pleadings or reliance upon the statutory provisions that the appellant now seeks to invoke there was no factual determination of whether his injuries were suffered “in, or in connection with, the commission of an indictable offence of which he was found guilty” for the purposes of a defence under s 6 of the Criminal Code Act or any determination of the factual 5 (1986) 162 CLR 1 at 7. 6 Water Board v Moustakas (1988) 180 CLR 491 at 497. 7 Gibbings-Johns v Corliss [2010] QSC 49 at [ 41]. 8 Ibid at [95]. -- 8 of 17 -- 9 elements required to establish a defence under s 45 of the Civil Liability Act, including a determination of the relevant “breach of duty” and whether the conduct of the respondent “contributed materially to the risk of the harm”. Because these issues were neither pleaded nor argued the evidence in respect of them was limited, and the respondent submits that these points cannot be raised for the first time upon appeal because each defence “could possibly have been met by calling evidence below.” 9 The respondent relies upon the fact that there was limited evidence about his wilful damage offence, and an insufficient basis to conclude that he was found guilty of “an indictable offence” so as to engage s 6(2) of the Criminal Code Act. [23] As appears from paragraph [60] of the primary judge’s reasons which have earlier been quoted, the trial judge found it unnecessary to resolve conflicts in the evidence concerning how the window was broken by the respondent, and described the manner of the breaking of the window as “only a peripheral matter”. [24] The finding relied upon by the appellant that the respondent “had provoked the incident by attacking the hotel for no good reason” was made in the context of considering the respondent’s explanation for failing to complain to the police on the night, when the respondent did not appreciate that he had suffered a significant injury to his eye. The finding that the appellant “reacted on the spur of the moment to the attack on his hotel” was made in the context of the respondent’s claim for aggravated or exemplary damages. The judge did not make findings of fact concerning the passage of time between the commencement of the respondent’s aggressive conduct outside the hotel, the breaking of the glass window and the throwing of the object that injured the respondent’s eye. He was not required to do so, or to reach a conclusion about whether there was the requisite connection between conduct that constituted an indictable offence and the suffering of the eye injury. The judge was not required to make findings concerning the appellant’s motivation in throwing the object and whether, for example, he was simply provoked by the respondent’s act in breaking the glass, the respondent’s aggressive conduct over a longer period or verbal abuse immediately before the object was thrown. [25] The respondent submits that if the factual issues involved in the statutory defences that the appellant now seeks to raise had been pleaded then additional evidence could have been called at trial so as to defeat these defences. This includes the possibility of calling other bystanders to address the sequence of events, and an exploration of the appellant’s motivation. It also would have included consideration of the offence with which the respondent was charged and to which he pleaded guilty. The evidence at the trial concerning this matter is minimal and the respondent submits that it has not been established that he pleaded guilty to an indictable offence. Section 6 of the Criminal Code Act [26] The difficulty in determining whether the evidence establishes the elements of a defence under s 6(2) is illustrated by the evidence concerning the offence to which the respondent pleaded guilty. Section 6(2) requires proof of the commission of “an indictable offence of which the person is found guilty”. The only evidence touching upon that factual issue was that the respondent was charged with, and pleaded guilty to “wilful damage”. The respondent explained that he pleaded guilty because he 9 Water Board v Moustakas (supra) at 497. -- 9 of 17 -- 10 broke the window when he was “slamming the window frame”. There was no evidence that he was charged with the indictable offence in s 469 of the Criminal Code of having wilfully and unlawfully destroyed or damaged property. His evidence is equally consistent with having pleaded guilty to the regulatory offence created by s 7 of the Regulatory Offences Act 1985 of wilfully destroying or damaging the property of another, without the consent, express or implied, of the person in lawful possession thereof and thereby causing loss of $250 or less. [27] In any case, if the respondent was charged and pleaded guilty to the indictable offence created by s 469 of the Criminal Code, then it seems that he was summarily convicted on his plea of guilty. In that event, s 659 of the Criminal Code arises for consideration. It provides: “When a person has been summarily convicted of an indictable offence, the conviction is to be deemed a conviction of a simple offence only, and not of an indictable offence.” The High Court in Ross v The Queen10 had occasion to consider s 659 in determining whether a person who was convicted summarily of an indictable offence had a right of appeal to the Court of Criminal Appeal. Gibbs J addressed the operation of s 659 in respect of the right of appeal conferred by s 673 for a person convicted summarily of an indictable offence. After referring to the terms of s 659 his Honour continued: “If these words were given the fullest operation of which they are capable, they would render the provisions of s. 673 entirely nugatory – since every person summarily convicted of an indictable offence would be deemed to have been convicted of a simple offence, there would never be a case in which an appeal could be brought under s. 673. There can be no doubt that the ordinary rules governing the construction of statutes require the provisions of s. 659 to be given a construction that will render them harmonious with those of s. 673, if that is possible. If the two sections could not both be given effect, s. 673, being the later enactment, would prevail. On any view, s. 659 cannot be construed as having the effect that a person summarily convicted of an indictable offence is deemed not to have been summarily convicted of such an offence and thereby deprived of the right of appeal which s. 673 expressly confers. This does not mean that s. 659 itself is deprived of effect; that section has ample room for operation – e.g., in cases in which a statute attaches some disqualification or other adverse consequence to a conviction for an indictable offence.” (emphasis added) 11 The other members of the Court agreed with the reasons given by Gibbs J. Barwick CJ added that the legislative scheme was that certain indictable offences may be tried summarily with specified penal consequences. His Honour stated: “The manner of trial does not alter the relevant statutory nature of the offence. If the offence be a common assault, it remains indictable because a misdemeanour though by the statute allowed to be tried summarily. The penal consequence of conviction will depend on the manner of trial.” 12 10 (1979) 141 CLR 432. 11 Ibid at 440. 12 Ibid at 433. -- 10 of 17 -- 11 According to Barwick CJ s 659 addressed the consequences of the summary conviction of an indictable offence. Section 659 did not alter the statutory nature of the offence. Instead, by deeming “the nature of the conviction to be other than in fact it is” s 659 made provision for the penal consequences that flowed from the conviction. Barwick CJ concluded: “For the purposes of a right of appeal, the conviction is of an indictable offence: for the purposes of punishment, the conviction is deemed to be a conviction for a simple offence.” 13 [28] The words that I have italicised in the passage of the reasons of Gibbs J, with whom the other members of the Court agreed, indicate that s 659 operates in a case in which a statute attaches some disqualification or other adverse consequences to a conviction for an indictable offence. Section 6 of the Criminal Code Act is such a statute. It imposes the adverse consequence of depriving a person of a right of action in certain circumstances. Following the approach adopted by Gibbs J, I consider that in this case s 659 operates to deem an indictable offence for which a person has been summarily convicted to be a conviction of a simple offence only, and not an indictable offence, so that s 6(2) of the Criminal Code Act 1899 is not engaged. [29] However, the first reason why s 6(2) is not engaged is that the evidence does not establish that the respondent was found guilty of the commission of an indictable offence. The evidence is equally consistent with the respondent having pleaded guilty to a regulatory offence. [30] The resolution of this and other contentious factual issues cannot be the subject of an order for a retrial. The new points raised by the appellant do not justify this Court ordering a new trial. As a general rule, the only new points which may be taken for the first time on appeal: “are verdict points, not new trial points. The point if entertained and upheld must enable the court to finally dispose of the issue in favour of the party raising it.” 14 [31] If the appellant had sought to engage a defence under s 6 of the Criminal Code Act then, in addition to proving that the respondent had been found guilty of an indictable offence, the appellant would have been required to prove that the respondent’s loss or injury was “in, or in connection with, the commission of” that indictable offence. The suggested indictable offence under s 469 of the Criminal Code involving wilful damage to the glass window would have been completed by the time the respondent suffered injury to his eye, such that the respondent’s loss or injury did not occur in the commission of the indictable offence. The alternative argument that the loss or injury occurred “in connection with” the commission of that offence is highly contentious. There is no finding in that regard and the evidence does not enable this Court to finally dispose of the issue in favour of the appellant. It is possible that the point could have been met by the respondent by eliciting or calling further evidence at trial if a defence based on s 6 had been raised. [32] It is unnecessary for present purposes to attempt to define the meaning of the expression “in connection with” for the purposes of s 6. The passage of time 13 Ibid at 434. 14 Robinson v Campbell (No 2) (1992) 30 NSWLR 503 at 508; see also Electricity Commission of New South Wales v Yates (1991) 30 NSWLR 351 at 356. -- 11 of 17 -- 12 between the commission of an indictable offence and the sustaining of loss or injury may bear upon the issue of whether loss or injury was suffered “in connection with” the commission of the indictable offence. The primary judge was not required to make findings about the lapse of time between the window being damaged and the object being thrown by the appellant. Mr Leavey’s evidence was that eight to ten seconds elapsed between the respondent hitting the window and being hit by the object that was thrown at him. Another witness thought that it was a couple of seconds. If the elements arising under s 6 had been pleaded then the passage of time between the glass breaking and the object being thrown by the appellant would have been a significant issue bearing upon an assessment of whether the injury was suffered “in connection with” the commission of an indictable offence of wilful damage. The respondent submits that the temporal connection between these two matters would have been more fully explored at the trial, and it is possible that other persons who were in the vicinity would have been called as witnesses. [33] In addition to calling further evidence about issues of timing, the respondent may have explored and called evidence about the appellant’s hostility towards the respondent and explored the issue of whether the appellant’s action in throwing the object was motivated by the respondent’s initial aggressive behaviour, the breaking of the glass, verbal abuse or other factors. The judge’s incidental finding that the respondent provoked the incident by attacking the hotel for no good reason does not amount to a finding for the purpose of s 6 that the injury that the respondent suffered was “in connection with” the commission of the offence to which he pleaded guilty. Because s 6 was not raised the judge was not required to address the issue. The state of the evidence concerning any connection between the commission of any indictable offence of wilful damage and the injury that the respondent sustained when an object was thrown into his eye does not permit this Court to dispose of the “in connection with” issue in favour of the appellant. The issue is one that could possibly have been met by the respondent calling further evidence at trial. [34] Accordingly, the appellant should not be permitted to raise on appeal a defence under s 6 of the Criminal Code Act. Section 45 of the Civil Liability Act [35] Similar issues arise in respect of the point raised on appeal concerning the operation of s 45 of the Civil Liability Act. The appellant’s argument assumes that s 45 applies in the case of an intentional tort. The respondent’s written submissions did not raise the argument that s 45 is concerned with a civil liability that would arise from a “breach of duty”, and does not apply to an intentional tort such as the respondent’s claim against the appellant. As a consequence, the appellant did not address this point. When the point was raised by the Court during oral argument the respondent made the submission that s 45 did not apply to a case such as this in which liability is based on an intentional tort, not a “breach of duty”. Since the point was not fully argued in the appeal and it would be unfair to the appellant to determine the appeal on the basis of an issue that was not fully argued, it is sufficient to identify the threshold point without determining it. [36] The long title of the Civil Liability Act is “An Act to reform the law of civil liability for negligent acts, and for other purposes.” Subject to s 5, which is not presently -- 12 of 17 -- 13 relevant, the Act applies to “any civil claim for damages for harm”.15 The Act’s definition of “claim”, “damages” and “harm” are wide and, as a result, many of the Act’s provisions extend beyond claims for damages for personal injury or death resulting from negligence. For example, Chapter 3’s provisions about the assessment of damages for personal injury would appear to apply to a wide variety of causes of action, including intentional torts, subject to the operation of federal law. However, a number of the provisions of Chapter 2 that deal with civil liability relate to particular types of claim. [37] Many of the Act’s provisions are based upon the recommendations of the Review of the Law of Negligence chaired by the Honourable Justice David Ipp, commonly known as the Ipp Report. It recommended legislation in respect of “any claim for damages for personal injury or death resulting from negligence, regardless of whether the claim is brought in tort, contract, under statute or any other cause of action”. 16 The word “negligence” was used to describe a failure to exercise reasonable care and skill.17 [38] In the second reading speech on the Civil Liability Bill on 11 March 2003, the then Attorney-General stated that the Bill “ensures personal responsibility and commonsense is reintroduced into the law of negligence ...”. 18 Section 45 is not based upon the Ipp Report, and neither the Attorney-General’s second reading speech nor the Explanatory Notes illuminates whether it was intended to extend to claims for intentional torts. The terms of the statute do not suggest that it does. Section 45 requires the Court to be satisfied that, amongst other things, “the breach of duty from which civil liability would arise” happened while the person who suffered harm was engaged in conduct that is an indictable offence. The phrase “breach of duty” requires reference to the statutory definition of “duty” which means: “(a) a duty of care in tort; or (b) a duty of care under contract that is concurrent and coextensive with a duty of care in tort; or (c) another duty under statute or otherwise that is concurrent with a duty of care mentioned in paragraph (a) or (b).”19 “Duty of care” means a duty to take reasonable care or to exercise reasonable skill (or both duties).20 [39] The text of s 45 therefore indicates that the section is concerned with a duty of care in tort or a concurrent duty of care, that entails a duty to take reasonable care or to exercise reasonable skill. Neither the text of s 45, nor its statutory context, indicate that it applies to a case in which civil liability arises from an intentional tort, such as an assault. [40] A comparable section of the New South Wales Civil Liability Act, which has been the subject of judicial consideration, is cast in different terms. 21 15 Civil Liability Act, s 4(1). 16 Review of the Law of Negligence: Final Report, September 2002, para 2.3. 17 Ibid. 18 Queensland Parliamentary Debates, 11 March 2003, p 367. 19 Civil Liability Act, Schedule 2. 20 Ibid. -- 13 of 17 -- 14 [41] It is sufficient to conclude that there is a substantial argument that s 45 of the Civil Liability Act 2003 does not apply in the present case because the civil liability that the respondent established at trial was not one which arose from a breach of duty. [42] Assuming, however, that s 45 might have been relied upon by the appellant in response to a claim for an intentional tort, the appellant has not clearly identified the “breach of duty” from which his civil liability arose and the matters that he would have pleaded in that regard in relying upon a defence under s 45. For example, would he have pleaded that the appellant’s breach of duty was in reacting to the respondent’s provocative conduct by deciding to throw something, in his careless selection of an object to throw or in failing to ensure that any object that he threw did not hit the respondent? [43] If the respondent in breaking the window “engaged in conduct that is an indictable offence” it cannot be the case that the appellant’s breach of duty “happened while” the respondent was engaged in the conduct that is an indictable offence. The evidence, including evidence that the judge regarded as reliable, indicates that the conduct that constituted the indictable offence had ceased before the object was thrown. Therefore, the elements of s 45(1)(a) cannot be established. [44] An available inference is that the respondent’s conduct in wilfully damaging the window “contributed materially” to the risk of the harm that he suffered. His conduct was provocative and the judge found that the appellant reacted on the spur of the moment. However, if the appellant had relied upon s 45 it is possible that the respondent would have called additional evidence concerning the role that the breaking of the window played in the appellant’s behaviour, including the lapse of time between the breaking of the glass and the throwing of the object. The respondent may have called further evidence to fortify the evidence of Mr Leavey that there was a lapse of eight to nine seconds between the breaking of the glass and the throwing of the object. [45] It is sufficient to conclude that if s 45 can apply in a claim for assault and if the conduct that is relied upon as an indictable offence is the wilful damage caused to the window, then the breach of duty from which civil liability would arise, apart from s 45, did not happen while the respondent was engaged in that conduct. It occurred afterwards. [46] Accordingly, the appellant should not be permitted to raise a new point involving the application of s 45(1). [47] In addition, had the appellant attempted to rely upon s 45(1) then the respondent would have sought to satisfy the Court that in the circumstances of the case, subsection 45(1) “would operate harshly and unjustly.”22 Issues as to whether s 45(1) would operate harshly and unjustly in the circumstances are matters about which the respondent could possibly have called further evidence if s 45 had been raised as an issue. Conclusion – new points raised by the appellant [48] The principle that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below upholds the important 21 Civil Liability Act 2002 (NSW), s 54 ; Sangha v Baxter [2007] NSWCA 264 at [74] – [86]; Sangha v Baxter [2009] 52 MVR 492 at [159]. 22 Civil Liability Act, 2003 s 45(2). -- 14 of 17 -- 15 policy of ensuring the finality of litigation. It is based, in part, on the elementary proposition that a party is bound by the conduct of its case. In University of Wollongong v Metwally (No 2)23 it was stated: “Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.” [49] The appellant conducted his case on the basis that he did not throw any object at the respondent, and therefore did not cause his injury. For reasons that are not explained, the appellant’s trial counsel and his solicitors did not seek to rely upon the statutory defences that have been raised on appeal. The pleading and proof of the statutory defences as alternatives to the appellant’s defence that he did not throw any object may have complicated, and possibly undermined, the simple defence that he raised. The appellant having failed in the defence that he chose to adopt at trial, it would be unfair and contrary to the interests of justice to permit him to raise new grounds of defence on appeal. [50] The findings of fact made by the primary judge do not establish each of the elements of the statutory defences because the issues at trial and the primary judge’s findings were not directed towards them. [51] The evidence that might support such a defence is deficient in certain respects. For example, the offence to which the respondent pleaded guilty has not been shown to have been an indictable offence, rather than a regulatory offence. In any event, s 659 of the Criminal Code operates to deem any indictable offence for which the respondent was summarily convicted on his plea of guilty to be a simple offence only, and not an indictable offence, for the purpose of a provision such as s 6 of the Criminal Code Act. [52] The evidence does not establish each of the elements that would need to be proved to create a defence under s 6 of the Criminal Code Act or s 45 of the Civil Liability Act. This includes evidence in relation to the passage of time between the commission of the offence committed by the respondent and the act of the appellant that caused injury to his eye. The appellant’s reason or reasons for throwing the object may have been further explored if additional defences had been raised at trial, and it is possible that further evidence about these issues and the precise sequence of events would have defeated any alternative defences. [53] The appellant did not raise at trial as an alternative and possibly inconsistent ground of defence that he was provoked into throwing the object as a result of the respondent breaking the glass window. The judge found it unnecessary to make findings about the lapse of time between the breaking of the window and the throwing of the object. In the absence of findings in relation to these and other matters, the Court would be required to make findings of fact in order to determine the statutory defences in favour of the appellant. The evidence does not permit the Court to reach conclusions in the appellant’s favour concerning factual matters that were not in issue such as the connection, if any, between the breaking of the glass in the window and the throwing of the object. It would be unfair to the respondent to 23 (1985) 60 ALR 68; [1985] HCA 28. -- 15 of 17 -- 16 do so on the basis of evidence that was called without regard to statutory defences that are raised for the first time on appeal. [54] The evidence to which the appellant points concerning the nature of the offence committed by the respondent and the connection between that offence and the injury that the respondent sustained does not establish either statutory defence. It is sufficient, however, to conclude that if the statutory defences had been raised before the trial court, it is possible that the respondent could have met them by calling additional evidence. For this reason the appellant should not be permitted to raise these defences for the first time upon appeal. The second ground of appeal [55] The second ground of appeal pursued by the appellant is that the primary judge “wrongly instructed himself as to the evidence relating to the availability of the appellant’s witnesses in the criminal prosecution in unrelated proceedings.” The relevant passage of the judgment relating to the fact that statements from the appellant’s wife and Ms Bell were not provided to the police has been quoted above. This passage calls into question the appellant’s case, which presented his wife and Ms Bell as eye witnesses to the incident in question. [56] The appellant provided a statement to the police dated 5 September 2005. In it he gave an account of closing up the hotel at about 12.30 am on Saturday, 7 May 2005, and checking the till. He said that as far as he could remember “all the bar staff had gone.” He makes no mention of the presence of his wife or Ms Bell at that time or at around 1.00 am when the episode involving the respondent is said to have commenced. [57] As the judge observed, if the appellant’s wife and Ms Bell witnessed events involving the appellant and the respondent then the appellant would have known of this. [58] The appellant’s wife knew that her husband had been charged by the police over the incident. She said that she would have supplied a statement to the police “if they’d asked”. Her son was a police officer and there was no evidence that she would not have been willing to provide a statement to the police. [59] The appellant submits that the primary judge overlooked the fact that neither the appellant’s wife nor Ms Bell was under any legal compulsion to provide statements to the police. However, there is no basis to conclude that the primary judge overlooked this fact. The trial judge was entitled to remark, in the circumstances, that it was surprising that the appellant did not strive to ensure that the police had the accounts of his wife and of Ms Bell in circumstances in which he faced a criminal charge arising out of his conduct that evening. The judge was entitled to remark that it was difficult to understand why Ms Bell was not advanced as someone the police should interview since, on her account, she would have exonerated the appellant. Ms Bell was a close friend of the appellant and his wife, and the judge had no basis to conclude that she would not have co-operated in providing a statement to police if she had been requested to do so. [60] Ms Bell gave evidence that she was not aware that the appellant had been charged with an offence arising out of the events of that evening. The judge had regard to this evidence. He may have doubted it in the light of his assessment of Ms Bell’s -- 16 of 17 -- 17 reliability as a witness. However, even if Ms Bell was not aware that the appellant had been charged, the appellant was aware of this and the potential for Ms Bell to assist his defence of the charge. If Ms Bell was in fact an eye witness and was able to give evidence that exonerated him, it is hard to understand why the appellant or his solicitors did not obtain her account of events and provide a statement to the police. [61] It was not suggested to the appellant that there was anything adverse about the fact that he had not attempted to ensure that the police had accounts from his wife and from Ms Bell. However, to the extent that the judge took an adverse view of the appellant because he did not strive to ensure that the police had these witnesses’ accounts of events, one is forced to speculate about what the appellant would have said if the matter had been put to him. [62] I am not persuaded that the primary judge wrongly instructed himself as to the evidence relating to the availability of the appellant’s witnesses in the police investigation and the criminal proceedings. I do not consider that the primary judge erred in having regard to the fact that the appellant did not ensure that police had the accounts of witnesses who, if believed, would exonerate him. [63] The passage from the judgment about which complaint is made was one of numerous matters which in their totality persuaded the primary judge to reject the appellant’s case. The matter about which complaint is made does not appear to be one which had any particular significance. The primary judge undertook a detailed assessment of the reliability of the several witnesses called on each side. His conclusion that the plaintiff had discharged the onus of proof was based, in substantial part, upon findings made as to the reliability of the plaintiff’s witnesses. The appellant has not demonstrated that the primary judge erred in the respects alleged in considering the fact that statements from the appellant’s wife and Ms Bell were not provided to the police when one would have expected this to occur, let alone that the alleged error justifies intervention by this Court. Even if the appellant had demonstrated error in the respect alleged, this was one of several matters that persuaded the primary judge to reject the defendant’s case. If error had been shown in this regard I would not have concluded that it justified a different finding on liability or an order for a retrial. The reasons of the primary judge demonstrate that he took advantage of the opportunity to assess the witnesses who gave evidence in determining whether the respondent had discharged his onus. [64] The second ground of appeal is not established. Conclusion [65] I would order: 1. The appeal be dismissed; 2. The appellant pay the respondent’s costs of and incidental to the appeal to be assessed on the standard basis. -- 17 of 17 --