Cosgrove & Chevron Queensland Ltd v Johns [1999] QSC 224

" ( IN THE SUPREME COURT OF QUEENSLAND Appeal No. 453 of 1998 Brisbane [Cosgrove & Ors v Johns] BETWEEN: JENNIFER MARGARET COSGROVE AND: CHEVRON QUEENSLAND LIMITED AND: DALLAS MIDGLEY JOHNS Fryberg J First Appellant! First Defendant . Second Appellant! Second Defendant· RespondentIPlaintiff Determination of issues of fact Delivered 20 September 1999 The judgment against the second defendant was obtained by fraud in that: (i) Bruce Donald Anthony, who was called on behalf of the plaintiff and gave evidence at the trial, was not in fact a witness to the events he swore he witnessed; (ii) In or about the early months of 1994, Anthony orally agreed with the plaintiff to give false evidence on the plaintiff's behalf and to find others to give false evidence in return for the plaintiff's promise to pay Anthony the sum of $20,000; (iii) Carol Ann Sole, a witness called on behalf of the plaintiff, gave false evidence at the trial, and did so after and as a result of having been prevailed upon to do so by Anthony, pursuant to the agreement referred to in paragraph (ii). The judgment against the first defendant was not obtained by fraud. -- 1 of 38 -- '. CATCHWORDS: TORTS - Several tortfeasors - Procedure - Form of judgment - Several judgments or one judgment Counsel: Mr S Williams QC, with him Mr T North for the appellants Mr C Hampson QC, with him Mr G Diehm for the respondent Solicitors: Gadens Lawyers for the appellants Gall Stanfield Smith for the respondent Hearing Dates: 28 October 1998 - 2 November 1998; 11 November 1998 -- 2 of 38 -- 2 ( ( 3 I. 4 1 FRYBERG J: The proceedings before me are unusual. I was told by counsel that they are the first to be brought under the relevant statutory provision. For this reason I shall describe them in rather more detail than would ordinarily be necessary. History of the action At about 10.3Opm on 24 April 1990, the plaintiff was seriously injured when he was struck by a car driven by the first defendant. He was struck at a point a little north of the intersection of Ferny Avenue with Cavill Avenue at Surfers Paradise and across the road from the rear of the Chevron Hotel, of which the second defendant was the owner and licensee. H~ was grossly intoxicated at the time; his blood alcohol level measured shortly afterwards was 0.332. On 20 April 1993, a writ was issued on his behalf against the driver of the car and the licensee of the hotel, claimingdamagesl . As finally pleaded, the claim . was based on negligence and, against the licensee, also on an alleged breach of the Workplace Health and Safety Act 1989. The action was tried before Derrington J from 10 to 13 November 1997. His Honour found that the driver had driven negligently and that the licensee was also negligent in having served the intoxicated plaintiff with liquor to the point of his gross intoxication in circumstances when it was reasonably foreseeable that to do so would cause danger to him. He found the plaintiff guilty of contributory negligence. He gave judgment for the plaintiff on 12 December 1997. The operative part of the formal order prepared in the Registry begins in these terms: "IT IS ADJUDGED that: 1. The Plaintiff recover against the Defendants the sum of TWO HUNDRED AND SEVENTY-SEVEN THOUSAND, FIVE HUNDRED AND SIXTY DOLLARS ($277,560.00) together with costs ... to be taxed." No appeal was lodged within the time prescribed by the rules of court. However, ,.op23 February 1998, the defendants applied to the Court of Appeal for, and were granted, Other defendants were named in it, but they were never served. -- 3 of 38 -- 5 2 2 an extension of time in which to appeal. Thereupon, they filed a single notice of appeal, the only grounds of which are as follows: "2. (a) The judgment appealed from was obtained by fraud in that: (b) (i) Bruce Donald Anthony ("Anthony") who was called on behalf of the plaintiff and gave evidence at the trial was not in fact a witness to the events he swore he witnessed; (ii) In or about the early months of 1994 Anthony orally agreed with the plaintiff to give false evidence on the plaintiff s behalf and to find others to give false evidence in return for the plaintiffs promise to pay Anthony the sum of $20,000; (iii) Pursuant to the agreement referred to in (ii) Anthony procured one Ian Robert Schultz to give false evidence; (iv) Carol Anne Sole, a witness called on behalf of the plaintiff gave false evidence and did so after having been prevailed upon to do so by Anthony; Alternatively that fresh evidence has been discovered to the effect outlined in (a) hereof which evidence could not with reasonable diligence have been discovered before or during the trial and it cannot reasonably be supposed that judgment would have been given against the second defendant or that liability as between the plaintiff and first defendant would have been apportioned as it was had such evidence been produced at trial." They sought orders that the orders made by Derrington J be set aside and a new trial be held. By notice of motion filed on 25 February 1998, both defendants sought (inter alia) directions as to the future conduct of the appeal. In a reserved judgment delivered on 29 May 1998, the court ordered, pursuant to s.68(3) of the Supreme Court o/Queensland Act 1991,2 that "the issues raised by paragraph 2(a) otthe Notice of Appeal be remitted to the Trial Division." That subsection provides: "If a proceeding is pending before the Court of Appeal, the Court of Appeal may, on application by a party or of its own motion, order that the whole or a part of the proceeding be remitted to the Trial Division for the determination (by trial or otherwise) ofthe proceeding or any question offact or law arising in the proceeding." o ( .. \J -- 4 of 38 -- 6 7 8 3 4 5 On its face, that order would seem to require me to determine the appeal insofar as it depends upon paragraph 2(a) of the notice of appeal. However, that this was not the intention ofthe Court of Appeal is evident from the reasons for judgment of the majority. They wrote: "Although it is neither possible nor appropriate to express a concluded opinion, Chevron has raised an arguable case that the judgment against it was induced by fraud. That being so, in our opinion, the judgment against Chevron should be stayed. The allegations which form the basis of the claim of fraud are set out in sub-para. 2(a) of the notice of appeal and the issues offact there raised should be determined by a Judge of the Trial Division, and remitted 4 to the Trial Division for that purpose. We.do not consider any further directions with respect of the trial of those issues are needed from this Court." The wording of the formal order is evidently a slip. Neither party suggested otherwise. I shall limit my determination to issues of fact. Pursuant to directions given in the Trial Division, the parties have exchanged pleadings in the relation to those issues. It was common ground that the defendants bore the onus of proofS. Consistently with this, they delivered the first pleading. They alleged, and the plaintiff subsequently admitted, that Bruce Donald Anthony and Carol Anne Sole were witnesses called on the plaintiffs behalf who gave evidence at the trial. They made no allegations in respect ofIan Robert Schultz, the person named in paragraph 2(a)(iii) of the Notice of Appeal, and abandoned the allegations there made in respect of him. The remaining allegations were particularised, and on them, issue was joined. BRUCE DONALD ANTHONY The allegations concerning Anthony were particularised as follows: "2. Anthony falsely swore to the following effect: (a) That he, Anthony, was in the Long Bar at the Chevron Hotel ("the Long Bar") on the night the plaintiff was injured; My emphasis. Supreme Court of Queensland Act 1991 s. 68. All parties agreed that this was an appropriate course. See McDonald v McDonald (1965) 113 CLR 529. The nature of the onus is well settled: Briginshaw v Briginshaw (1938) 60 CLR 336; Nicholls v Carpenter [1974] 1 NSWLR 369. -- 5 of 38 -- 9 3. 4. 4 (b) That he, Anthony, saw the plaintiff in the Long Bar on the night the plaintiff was injured; . (c) That he, Anthony, entered the Long Bar at approximately 6.30pm; - (0) That he, Anthony, observed the plaintiff in the Long Bar when Anthony entered that bar; (e) That he, Anthony, left the Long Bar at approximately 8.30pm; (f) That he, Anthony, observed the plaintiff within the Long Bar when Anthony left; (g) That the plaintiff was "half drunk" when Anthony first met him that night; (h) That the plaintiff drank with and around Anthony; (i) That Anthony left because of the plaintiff; 0) That the plaintiff could not "talk sense" so Anthony went home; (k) That the plaintiff could not talk sense because he was drunk. Anthony was not present at the Long Bar on the night the plaintiff was injured. In or about the early months of 1994 at the Chevron Hotel Anthony orally agreed with the plaintiff to give false evidence on the plaintiffs behalf and to find others to give false evidence in return for the plaintiffs promise to pay Anthony the sum of $20,000." Paragraph 2 was sloppy pleading. Its failure to comply with the provisions of 0.22 r.l (which required every pleading to contain, as nearly as may be, a separate allegation) contributed to the generation of a false issue, viz whether Anthony's evidence was accurately paraphrased in the subparagraphs of paragraph 2. Although the plaintiff denied this paragraph in his pleading, the issue was not referred to during the hearing before me. Counsel for the plaintiff raised no objection when, during his final address, Mr Williams QC, senior counsel for the defendants, particularised Anthony's evidence at my (j \"--- " ("'i j ()' . ( \ .~ -- 6 of 38 -- 10 11 6 , 5 request by reference to the transcript of proceedings before Derrington J. I accept the defendants' paraphrase as an accurate paraphrase of those particulars6• Paragraph 2(a)(ii) of the notice of appeal The only direct evidence of the agreement alleged by the appellants was in the statements of Neil William Armstrong'. The statements were dated 23 and 24 January 1998 respectively, and the versions tendered were executed as statutory declarations on 2 February 1998. Armstrong suffered from serious heart conditions. He had been told by a specialist in 1993 that he "could be dead in as little as two years, maybe five if I lost weight and'watched myself. And, that was only a maybe." The reported prognosis was accurate. Armstrong died from cardiomyopathy, ischaemic heart disease and hypertension on 5 February 1998. The statements were admitted into evidence under s.92 of the Evidence Act 1977. Armstrong's statements It was common ground that Armstrong and Anthony had been associates, apparently from late 1993 onwards. On the present point, Armstrong'sstatement is as follows: "13. ANTHONY arranged witnesses to give evidence at JOHNS' personal injury hearing recently, which he won. 14. One beautiful sunny day, early 1994, I spent the day in the Longbar at the Chevron Hotel with ANTHONY and various other people. I think "Lyn", ANTHONY's girl, was there for some time. 15. The next day I picked him up at his place as arranged, and I'm positive we went straight back to the Chevron. I recall I parked the vehicle at the back of the hotel, and we walked into the hotel via the back entrance and I followed him to our regular spot in the dry bar. 16. We were only there a few minutes when the person I now know to be Dallas JOHNS walked straight over and spoke to ANTHONY. JOHNS came into the bar after us. I should add in fairness to those who appeared on the hearing before me that the defendants' pleading was not settled by counsel. Exhibits 4 and 5. -- 7 of 38 -- 6 17. There was no small talk, they started talking about JOHNS' case almost immediately. I recall ANTHONY said to JOHNS; "How's your case going". JOHNS said, "I'm living at home with Mum, and if it wasn't for her and my Solicitor picking up the tab, I'd be completely broke". 18. ANTHONY said, "Well how long before they settle. How much will you get". JOHNS said, "Mate, not much without witnesses. I'm having trouble finding witnesses to back my story". 19. 20. Things were said then that lead me to assume the witnesses were important, that JOHNS' Solicitor had advised him that without witnesses ~e couldn't expect much, if anything. The words, "the claim will be very small without witnesses" were used. ANTHONY came straight out and said to JOHNS, "I'll be a witness, and I'll get a couple of other blokes, but it'll cost you $20,000.00". JOHNS said, "Okay, you get the witnesses and get signed statements, the $20,000.00 is right". 21. I don't recall who initiated the move, I suspect it was ANTHONY, but they made a ''tactical advance to the rear". I assumed they were discussing the witnesses. 22. That didn't surprise me. Despite me being his mate and gofer at that time, ANTHONY only e,:,er told me what he wanted me to know. 23. I know time is important, but the best I can recall at this point in time is, it was before the Indy Carnival, early 1994, January/February - FebruarylMarch, that period. It was very hot. 24. ANTHONY and JOHNS had a conversation which lasted 5, maybe 10 minutes, after which JOHNS just walked out of the bar. 25. ANTHONY gestured to me, indicating we were leaving too, and we walked out the back to the car. I'm pretty sure we were using his XF Falcon Sports Pac. I'm pretty sure I left my car at his place. 26. We entered the car, I was driving. ANTHONY said to me words to the effect, "That bloke is a mate of mine. He got knocked over by a car. He's got a compensation claim going and needs witnesses. Will you go witness for him". I said, "No, I don't know the guy". ANTHONY said, "You'll be paid". I said, "No, I'm not interested, I'd prefer to stay out of it." ()"--./ -- 8 of 38 -- ( ( 7 27. I said to ANTHONY, "Were you there". He said, "No, and it doesn't matter, nobody remembers the silly bastard being there, not even the barmaid". . 28. The way ANTHONY spoke it was clear to me he was "ecstatic" about the prospect of picking up $20,000.00. 29. He didn't ask me to be a witness again that day, or any other day. 30. ANTHONY said, "Nobody can remember him (JOHNS) being there, there won't be a problem being a witness". I said, ''No, I'd rather not get involved". He never asked me again. 39. The third meeting. I was in ANTHONY's company. I recall I was driving that day and again think it was his white XF SPAC we were In. 40. He said to me, "We are going to see JOHNS at the Lone Star Tavern. He actually involved me and said, "We are going to meet Dallas JOHNS". 41. On the way he was telling me what was going on, just to the effect, "We are meeting JOHNS, getting an update on this court case business" . 42. We arrived before JOHNS, went into the Gunfighters Bar and got a beer. We were there just long enough to drink that beer and JOHNS arrived. I knew JOHNS by this time. . . 43. We all three moved to a table directly in front of the bistro. ANTHONY sent me to the bar to get two beers, and a softdrink. I recall I was served virtually straight away and was back at the table within minutes. It was in the morning again, because there was only us three and two other blokes up the other end of the bar, as I recall. 44. ANTHONY allowed me to stay at the table and talked freely about the case, in front of me. 45. I recall ANTHONY said to JOHNS words to the effect, "Are you happy with the witnesses". JOHNS said, "Yes, the Solicitor is happy, it puts a whole different slant on things. They're not going to settle now, they're going to fight on. The Solicitor thinks the case is winnable now we have the witnesses, and $500,000.00 is not beyond reason. He thinks we can get $500,000.00". -- 9 of 38 -- 8 46. When JOHNS mentioned $500,000.00 ANTHONY's eyes lit up and he immediately asked him what he was going to do with his money. JOHNS said, "1 want to get into a small business". ANTHONY said, "I've got an investment right for you, we will make big bucks. All you have to do is throw in $50,000.00, I'll do the rest. Have we got a deal". JOHNS said, "Yeah, when the money comes through, done deal". 4 7. JOHNS was there about half an hour and when they had finished talking he got up and left. ANTHONY and 1 had another beer, and went to other places. He was drinking, 1 was driving so 1 wasn't drinking too much. 48. 49. ANTHONY usually had a couple of VB's to start the day and thereafter JD (Jack Daniel) and Coke, no other brand, JD and coke, and he can drink it all· day and night. ANTHONY said things later that day that left me in no doubt that the $50,000.00 JOHNS agreed to come up with was for ANTHONY; There was no investment deal, it was $50,000.00 on top of the $20,000.00." 12 There was other evidence from which inferences in support of that direct evidence as to agreement might be drawn or which related to issues of credit. 1 list some categories of oral evidence which 1 have found helpful: (a) (b) Anthony's alleged misleading of the District Court at Southport during sentencing proceedings in 1998; Anthony's alleged willingness to make a false affidavit when it suited his interest; (c) Anthony's alleged expectation of financial gain in consequence of Johns' action; (d) Anthony's acceptance in 1994 of$5,000 in return for his promise to· destroy evidence of a crime. 13 Armstrong's statements alone are a less than satisfactory basis for a finding as serious as the one sought by the defendants in these proceedings. Fundamentally, it is unsatisfactory to decide such matters on the basis of a statement by a person unavailable for cross-examination. Moreover there are a number of features about the statements which c) -- 10 of 38 -- ( 14 9 give rise to disquiet. They are sequentially scrappy and do not give the impression that they were drawn as a result ofa thorough and careful exploration of the topics with which they deal. They were produced by one Thomas, a former New South Wales police officer, now a private investigator, who was directed to Armstrong by the insurance company now indemnifying the defendants. Counsel for the defendants ostentatiously refrained from leading evidence of the circumstances in which they were procured. I have no matrix of facts relating to that question to give them colour or against which I might assess them, despite the fact that before Thomas was called, Mr Williams told me that Thomas would give evidence of the context in which the statements came to be made. Mr Hampson's attempts (on behalf of the plaintiff) to cross-examine about the numerous meetings which Thomas had with Armstrong were hampered by the fact that Thomas had not brought his notes to court with him, an omission for which he could offer no explanation. Nor did he bring notes given to him by Brad Russell and Des Sates, the solicitor and representative of the insurance company respectively who instructed him to act, and who had themselves interviewed Armstrong. There is little information about Armstrong. He was almost 44 years old and had been in the army. He wrote that in 1993 he was referred to Anthony "for financing and backing on a deal I was trying to put together ... involving mining rights on land I wanted to excavate." He said that he and Anthony hit it off and "became associates, friends, drinking partners, but in fact I was his right-hand man and gopher." He said it did not take him long to realise that Anthony was involved in various forms of criminal activity on a day-to-day basis. He continued, "In fact he took pride, said things to the effect, that he was proud of the fact he was a professional crim. He called himself a professional. He was heavily involved in the stolen motor trade, involving various car yards." Apparently, Armstrong did not allow these matters to obstruct the relationship. In 1994 Armstrong was convicted of an offence of possession of a stolen vehicle, but there is no evidence of any other criminal activity. By the time the statements were made, the relationship had been severed. There is no reason to think it would then have prevented Armstrong from fabricating a story if that were in his interest. -- 11 of 38 -- IS 10 Finally, there is some hearsay evidence that Armstrong was aware of the possibility that he might receive a reward. -Thomas denied offering him one, but admitted that officers of the insurance company had spoken to Armstrong. None of them was called. Armstrong's need for money was, somewhat surprisingly, given some prominence in his statement 8: he needed money desperately for an operation to save his life. 16 Mr Hampson made a number of other criticisms of the evidence from Armstrong, 17 8 but they generally do not impress me. The matters to which I have referred are the ones which do concern me. If the defendants' evidence from and in relation to Armstrong stood alone, I would not be satisfied to the requisite standard that the agreement alleged between Anthony and Johns was in fact made. However Armstrong's evidence does not stand alone. There is also the evidence of Johns and Anthony to take into account. Both of them gave some evidence regarding incidents alleged by Armstrong. Mr Williams submitted that there was a coincidence in detail between a number of allegations made by Armstrong and the versions given by Johns and Anthony; and that there was much that Armstrong said which he could not have known unless he was present or was told later of this detail. He submitted that the latter possibility was improbable. There is some force in this submission. There are also inferences which can be drawn directly from their evidence. Johns and Anthony The plaintiff swore that he neither knew nor ever met Armstrong. He admitted that in 1994 he started to search for witnesses to his presence in the bar on the day of the accident. He said that on an occasion in that year, he went back to the Long Bar of the _Chevron Hotel for the first time since the accident to seek witnesses to his presence in the bar on the day ofthe accident. He said he spoke to Anthony among others, and Anthony told him that he did-remember seeing him because he was so drunk. He was not directly asked whether Armstrong was present, perhaps because he claimed to be suffering defective memory in relation to the occasion. He denied making the agreement alleged by Armstrong and denied that he had promised Anthony any money: "Have you promised to give him any money?-- No, sir. Exhibit s. o c) -- 12 of 38 -- 18 ( 19 11 So Mr Anthony wouldn't have any anticipation of getting money out of you?-- No, sir. At the present time or in the future?-- Absolutely not. Or in the past?-- No, sir." Anthony also gave evidence of the occasion. He said that a long time after the accident he bumped into Johns in the Long Bar again. He asked Johns how his case was going and Johns replied that he couldn't get anyone to remember that he was there that night. He said that he told Johns that he was there - that he was supposed to meet Johns there that night. He said he saw Johns there on the night of the accident and that he would talk to his solicitor for him. Asked in his evidence in chief whether Armstrong was present on that particular occasion, he replied, "I don't know." That answer is not without significance when it is remembered that Anthony had, before giving evidence, spent a long time reading Armstrong's statements. Counsel was, 1 thought, surprised by that answer. He reminded Anthony who Armstrong,was by reference to the statements, ascertained that he knew the man being talked about (as if they had been strangers rather than close associates), and again asked whether Armstrong was present during the conversation with Johns. This time, Anthony answered, "I don't think so, no." The evidence proceeded: "Can you recall him being present on any occasion when you spoke to Dallas after the accident?-- He could have been. We all used to drink together. Was he a frequenter also of this Long Bar?-- Yes." This was not inconsistent with an affidavit which Anthony has sworn in the proceedings .on 19 February 1998, where he said: "5. At the time of advising Dallas Johns that 1 was prepared to give evidence, 1 do not recall who else was present in the Bar or who may have overheard our conversation." The answers were not, however, helpful to the plaintiffs case. Not surprisingly, Mr Hampson returned to the topic with Anthony a little later: "I see. Now, can you recall any occasion on which Armstrong was present- I'm talking about after the accident and from about 1994 onwards when Dallas Johns came to see you - and you told him you had been there that -- 13 of 38 -- 20 21 12 night and seen him at the bar? Can you recall any occasion from that visit of Dallas onwards when, in fact, Dallas was present in your company when also Armstrong was present drinking?-- No, I've tried to think about it. I didn't think they even knew each other." This answer was plainly inconsistent with Anthony's earlier evidence that he, the plaintiff and Armstrong "all used to drink together". In cross-examination, his evidence firmed up even more. He moved from saying that he would have remembered if Armstrong had been present when the plaintiff came into the Long Bar (because he himself would have been shouting) to asserting that Armstrong was definitely not present: "And you say that each occasion you were there with Mr Armstrong is etched on your mind?-:-- When I seen Dallas come into the hotel that day, Mr Armstrong wasn't there. I put hours and hours of thought into it because I've read the affidavit. Ifhe had been there, I would have said so. I've read these things a hundred times to see ifI've made a mistake. To the best of my recollection, 1 haven't." Counsel reminded him rifhis earlier evidence that Armstrongcould have been present. He sought to explain the inconsistency on the basis that he had meant that Armstrong could have been in another bar. That plainly, was not what he had meant on the earlier occasion. In my assessment, the answers which Anthony gave in cross-examination were lies. I watched him carefully throughout his evidence, the more so since credit was particularly important in the circumstances of the case. He was in my judgment a blatant and cynical liar on numerous occasions. He was shown to be untrustworthy. By his lies, he provided some corroboration for Armstrong's statements. Anthony was a man with a number of criminal convictions in the past. In 1988 he .was fined $7,000 for making a false declaration to the Social Security Department. In 1995 he was convicted on two counts of unlawful possession ofa motor vehicle with intent to deprive the owner of it, one count of stealing a motor vehicle and one count of receiving money to withhold evidence. He es~aped imprisonment, but was given a substantial fine. On 19 June 1998 he was convicted on three counts of fraudulent disposition of mortgaged goods and was sentenced to imprisonment for 18 months. c ) -- 14 of 38 -- ( \ \ 13 22 There was a good deal of other evidence which also reflected adversely on 23 24 Anthony's credit. In 1995, Anthony had a close friend named Neil Williams. Williams purported to be the managing director ofa coffee-buying and processing company in New Guinea. Anthony was concerned to stay out of jail on the four charges referred to above and was also concerned to prevent convictions being recorded in relation to them. He obtained a letter from Williams addressed to the presiding judge at the Southport District Court, in which Williams wrote: "I employ Don Anthony as a security consultant in New Guinea and have been impressed with his honesty. I believe the offences to be quite out of character for Mr Anthony as he is responsible for large sums of money. For Mr Anthony to work as a Security Consultant he must have a clean criminal record which is New Guinea government policy.... I am informed by the New Guinea authorities that ifMr Anthony is convicted of a criminal offence within Queensland that he will most likely lose his work permit to enter New Guinea and I would therefore be unable to employ him. I understand the offences are serious, however I would ask that you consider not convicting him." That was false. Anthony admitted in 'cross-examination that he had been to Papua New Guinea only once. He could not say in what year, but said it was ''years ago". He had gone as an adviser on security.· He had been there for only ten days and had received no payment. He said, "It was just to have a look at it, for a friend." When Anthony was sentenced in the District.Court, that letter was tendered to the court in mitigation. Anthony was, of course, present and I have no doubt that he gave instructions for the tender. It was a calculated attempt at deception, and for all I know, it was successfuL In cross-examination before me, Anthony attempted to suggest that the letter had not been tendered, but I am satisfied that this was deliberate dissimulation. In 1984 Anthony brought an action against Ron McMaster Constructions Pty Ltd in respect of an injury which he alleged he had received in the course of his employment three years earlier. In it, he claimed loss of wages for (inter alia) the whole of the period July 1983 to June 1984. In 1985 he made a handwritten statement to the Workers' Compensation Board in relation to (among other things) his loss of earning capacity. In that statement he wrote: -- 15 of 38 -- 25 14 "I have not been engaged in any activity or job for remuneration and have received no income (apart from Workers' Compensation) since I came on compensation. ... I know a Doug Austin. He is in Darwin working at Darwin Hotel. I last saw him 7-8 months ago. He lived at 15 Coobowie Street, Coral Gables with myself and several others. I have never used his name nor any other name. I have never been known by any other name, nor known as Don Austin and I have always used Donald Bruce Anthony .... Since my accident I have gone to different places for a drink and I recall on one occasion at Fisherman's Wharf Hotel, I others were asked by one of the bouncers, Grant, to stand next to him, as there looked like trouble. ... I was certainly not ever employed by Fisherman's Wharf or Twains .... I was never employed as a bouncer or security man or doorman at any of the above places, nor did I ever stand in as a bouncer, nor was I ever called on for assistance in this regard, nor did 1 ever do any other things such as bar work or anything." In answers to interrogatories sworn on 10 December 1987, he deposed to a calculation of his loss of wages for the whole of the period, July 1993 to June 1994. That material may be contrasted with other sworn evidence given by Anthony. On 13 December 1995, he swore an affidavit in appeal no 258 of 1995, when that matter was still pending in the Court of Appeal. The action, between a man named Beecroft and the proprietors of the "Top of the Mark" Building Units Plan, was for damages for personal injuries sustained in an incident outside Twains Nightclub which allegedly occurred on 23 December 1983. Anthony's affidavit began as follows: "1. I do not recall the exact date nor the year however I remember an incident where I witnessed a man fall over the balcony railing outside the entrance to Twains Nightclub. I do recall that the incident would have occurred approximately 12 years ago. 2. At that time I was the manager of security at Fisherman's Wharf Hotel Complex, Main Beach." The affidavit went on to recount a version of the incident the subject of the litigation. 26 These documents were put to Anthony in cross-examination before me. In response, Anthony prevaricated. In both cross-examination and re-examination he was offered the opportunity to explain the inconsistencies. Since two of the apparently inconsistent documents were affidavits, he was warned that he need not answer if the answer might tend to incriminate him. He chose to claim privilege. He chose wisely. I (j -- 16 of 38 -- 27 28 15 find that in one or other of the affidavits he lied. Probably on this point the lie was in the affidavit in answer to interrogatories. Probably the statement made to the Workers' Compensation Board amounted to attempted fraud. (Incidentally, it is interesting to note that in a different part of his cross-examination before me, Anthony volunteered that he went by the name Austin; apparently the 1988 convictions' were in that name.) I have said enough already to illustrate why I find that Anthony is a person of no creditworthiness whatsoever. I do not rely on anything he said unless it coincides with the evidence of a person whom I believe. I am satisfied that Anthony expected a financial reward in the event that the plaintiff's action succeeded. In cross-examination, Anthony initially denied that he thought he might get money from the plaintiff's damages. The trial in the present action took place in November 1997 and Derrington J delivered a reserved judgment for the plaintiff on 12 December 1997. Appellate proceedings began in late February 1998. On 19 June 1998, Anthony came before Judge Hanger in the District Court at Southport for sentence on the three counts referred to above. On that occasion, he was represented by Mr Cousins of counsel. The crown prosecutor said to the judge: "The matter was listed for trial and certainly he was arraigned on 26 September 1997. At that arraignment he pleaded not guilty to all four counts in the indictment. The last time the matter was listed for trial was 7 October 1997 when the prisoner pleaded guilty, was rearraigned and pleaded guilty to the three counts we're dealing with today on the morning of the trial and, as I've said, the matter has been adjourned since that date on the basis that the prisoner indicated to the court that he would obtain the $30,000 which is outstanding from a friend who he informed was soon to recover some money or soon to receive some money from a personal injuries settlement. That matter has been adjourned in response of the accused's assertions that the money will be forthcoming and, of course, the Crown consented to those adjournments on the basis that the complainant was anxious to have the funds recovered and the Crown did consent to those adjournments until the last mention date of 29 April where the Crown opposed any further adjournment and the matter was adjourned to today for one last time. It seems that despite earlier assertions that a full sum of$30,000 would be available from this civil settlement from the last mention date it was clear -- 17 of 38 -- 16 that only half that sum would become available, if at all, from that settlement and certainly that no entitlement for that money would be seen, only.in agreement, perhaps, by the person receiving the money, and it seems at that time the prisoner mentioned that other avenues might be used to obtain the balance of the money, but certainly that could have been done prior to. this date. In effect, there is no prospect, it seems, that funds would be available, Your Honour. In relation to penalty, Your Honour would note that this offence is not one that commonly comes before the court." In cross'':examination before me, Anthony said that this passage was accurate. He further admitted that the "settlement" referred to was the settlement of Johns' action - the present proceedings. He acknowledged that on his instructions, Mr Cousins dealt with the topic in this way: "Your Honour, even up to this day, he still says he wants to pay the money, and that he will pay the money. But in all honesty, he admits that he just can't give any iron clad guarantee to the Court today as to when the money will be paid. He has a legitimate expectation of receiving money by virtue of this other personal injuries payout, but he just can't, in all honesty, tell the Court when that will be. And rather than come here today and make ,shallow promises about the money will be paid in three months or four months or what have you, mmm, he's just telling you the truth, through me, that he still wants to pay the money. Ifhe can, he will. But he just can't make that promise, and so he accepts that he will be sentenced on the basis that no moneys have been paid, and that there is little or no point in making an order for restitution, particularly if a term of imprisonment is imposed. But, he makes it very clear, and this can be relied upon in any subsequent civil proceeding, he still intends to pay the money when he is able to do so." He said that what Mr Cousins told the court was true. He sought to explain it by asserting that in about November 1997, the plaintiff offered to lend him $30,000 ifhe ever got paid. 29 I do not believe this explanation. It is completely uncorroborated and is inconsistent with the evidence of the plaintiff. It is worth noticing the circumstances in which it was given. Anthony was being cross-examined by reference to the transcript of the proceedings before the District Court. He agreed that the crown prosecutor's statement, referred to above, was accurate. Thereupon, counsel tendered the transcript. In the presence of the witness, Mr Hampson objected to the tender on the ground of relevance. In the course of argument he said: "Yes, it is, Your Honour, but I object to it all in total even though the witness says that on his recollection that is what the Crown Prosecutor said and so forth about the circumstances of the things. The only possible area C) (j -- 18 of 38 -- 17 in which it touches the matter before you today and I invite Your Honour to look at this - there are some passages in green where it seems suggested that this witness by his counselor solicitor had sought adjournments in the past with a view of trying to make restitution, and his counsel says that with relation to one avenue of money that was no longer now available but he was hoping to get a loan, I think it was, from some compensation claim, something about a compensation claim. That is as close as it comes to anything here - the line of questioning that has been put before Your Honour, that is what I mean by "anything here". I invite Your Honour to have a look at the rest of it. Even that is too remote, with respect, to what is before Your Honour. It is only those passage that seem to be highlighted that come anywhere near the matter for what Your Honour is concerned with and I object to it." 30 The claim that the money was to be a loan was made in Anthony's first responsive ( answer after the conclusion of this argument and the admission of the transcript as evidence. However, Mr Hampson's reading of the transcript had been in error. It contains no reference to the expected moneys being paid by way of loan. Anthony heard the submission, decided it suited him and lied. 31 .i 32 It is true that the amount referred to· in the District Court was $30,000, whereas Armstrong's evidence was of an agreement between Anthony and the plaintiff for the payment of $20,000. I do not think the difference is of any consequence. Perhaps Anthony was exaggerating the amount to the District Court - it was certainly in his interest to do so. Perhaps by 1997 the plaintiff had agreed to increase his offer. It does not matter. What was said to the District Court in 1998 corroborates Armstrong's evidence of the plaintiff's agreement to pay Anthony. I fmd that in or about the early months of 1994 at the Chevron Hotel, the plaintiff promised to pay Anthony the sum of $20,000. Why did the plaintiff promise to pay Anthony $20,000? Since both he and Anthony denied any promise was made in 1994, they advanced no explanation. However it is the fact that Anthony has been shown to be prepared to swear falsely and to lie for financial gain. I have already referred to his statement to the Workers' Compensation Board and his answers to interrogatories in his personal injuries action. The circumstances of the charge relating to the withholding of evidence are also of some interest. Anthony and a man named Von Koellenstein had been charged with a number of offences. According to -- 19 of 38 -- 18 Anthony, Von Koellenstein offered him $5,000 to "make the charges go away". Anthony accepted the money, though he claimed in evidence before me he had in fact no way of making the charges go away. Just how he was able to induce Von Koellenstein to part with $5,000 was not explained. In the absence of evidence in detail about the circumstances, I am not prepared to find that Anthony did not at the time believe that he could not succeed in doing what he promised to do. I note that he pleaded guilty to the charge after receiving advice from an experienced criminal solicitor. 33 The defendants urged the conclusion that the promised money was the consideration for the giving of false evidence and for seeking out others to give such evidence. There is no doubt that at the 1994 meeting, Anthony promised the plaintiff that he would be a witness and would find other witnesses for him, and that he then put some effort into attempting to do so. Anthony admitted as much. He denied that he promised to do so for money. But why else would he have done it? The plaintiff at first described their relationship as that of drinking buddies, but then he resiled from that description, saying , that his drinking friends were of a much younger age (there was a considerable age difference between him and Anthony). Then he said he would have paid back any loan of $50 from Anthony because the latter was "a good friend of mine"; but he rather spoiled the effect by saying that he got to know Anthony as someone who drank with another friend and judged him of good character! Anthony said that he went to all the trouble of finding the witness Sole because the plaintiff was a friend, He conceded that when he promised to find witnesses in 1994, he had not seen the plaintiff for a number of years. He said, "I hadn't seen him because he got run over and he was a complete wreck. He was nearly broken in half. You don't turn your back on friends." . That sentiment sits uncomfortably with his apparent failure to visit his alleged friend from the time of the accident in April 1990 until the meeting in 1994. Anthony's ex-wife was asked if Anthony and the plaintiff were close friends, and she replied, "I don't know if they were close friends but they were friends." Friendship of this sort is not a sufficient explanation for such a promise. 34 In 1994, the plaintiff promised to pay Anthony $20,000. Anthony agreed to be a witness and to find other witnesses for the plaintiff, and did so. They were not close friends and had not seen each other from the time of the accident in 1990 until the time of the C) -- 20 of 38 -- ( ( \ \ ( \ ! ( 35 19 promise. Anthony did not impress me as a man driven by altruism. I infer that Anthony gave his promise in exchange for the plaintiffs agreement to pay him $20,000 from the proceeds of the action. Both Anthony and the plaintiff knew that Anthony could not truthfully give the required evidence. They must have realised that after four years, the evidence of any other witness found would also be likely ,to be false. It was no part of the agreement that the witnesses should speak the truth. The plaintiff and Anthony were indifferent to whether those witnesses did or not, provided they said they saw the plaintiff in the Long Bar on the day he was injured. Paragraph2(a)(i) of the notice of appeal Was Anthony's evidence at the trial false? His evidence at the trial before Derrington J was to the effect that on the night the plaintiff was injured, he saw him between 6.30pm and 8.30pm drinking in the Long Bar. He further said that the plaintiff was half-drunk when he arrived and that he could not talk sense when he left. Before me, the defendants did not attempt to prove this evidence false by showing that the plaintiff was not in the condition described, nor that he was not in the Long Bar drinking at the stated times. The thrust of their case was to show that Anthony saw none of these things; that his evidence was false not because the events described by him did not happen, but because if they did, he did not see them. 36 In my judgment, the defendants have proved their case. The only direct evidence on the point is that of Armstrong. He said that Anthonyadmitted to him .that he was not at the Long Bar on the night in question. Anthony denied making such an admission. For the plaintiff there was an attempt to reinforce Anthony's evidence with that of his wife (from whom he was separated). However I thought her evidence vague, inconclusive, based on reconstruction and inherently unreliable. It was probably influenced by statements made to her by Anthony. On the other hand, there is no direct corroboration of Armstrong's version. It suffers from the difficulties to which I have already referred. The strongest corroboration for Armstrong's statement lies in the existence of the agreement made by Anthony with the plaintiff. Anthony's evidence was what the agreement called for. The agreement was plainly a dishonest arrangement. Anthony has in the past placed false evidence before the District Court (when he was being sentenced) and before this -- 21 of 38 -- 20 court (in his own action). He has accepted money in return for a promise to conceal evidence of a crime. I find that, when interviewed as a potential witness by the plaintiff s solicitors in June 1991 (only 15 months after the accident), he did not mention having seen the plaintiff on the day of the accident. I am satisfied that Anthony's evidence was false. CAROL ANN SOLE 37 The defendants pleaded: 38 . "6. Sole falsely swore: (a) That she saw the plaintiff in the Long Bar on the night he was injured; (b) That she saw the plaintiff was in the Long Bar at approximately 7.30pm that night." That plaintiff denied that paragraph. Again, the denial raised a false- issue. The plaintiff did not contend before me that Sole did not give that evidence. The plaintiff s contention was that she did not give it falsely, and that there was no agreement between her and Anthony as alleged by the defendants. Paragraph 2(a)(iv) of the notice of appeal Carol Ann Sole was a bar supervisor employed by the second defendant on the day of the plaintiff s accident. It seems to be common ground that on that day she was rostered to work, and did work, until 6.30pm in the evening. Prior to the hearing before me, she gave a variety of versions of her recollection of the events of the day of the plaintiffs accident: 8 November 1995 6 November 1997 11 November 1997 10 February 1998 I1February 1998 14 February 1998 16 February 1998 Statement to loss assessor (Longrigg) Statement to Diehm of counsel (for plaintiff) Evidence before Derrington J Statement to insurance investigator (Thomas) Statements of 8 November 1995 and 10 February 1998 verified by statutory declaration Statement to insurance investigator (Thomas) Statement of 14 February verified by statutory declaration Cj C) -- 22 of 38 -- 39 ( 40 ( 41 42 21 26 October 1998 Statement to solicitors for plaintiff. In her evidence before me, Sole asserted the truth of her evidence before Derrington J and the falsity of the statements (other than the last of them) in general terms; but when asked about the statements in detail, she elected to claim privilege against self-incrimination. In the circumstances, I generally allowed her claims. Neither side contended before me that Sole was a witness of credit. Plainly she was not. She was a greedy liar. On her own account, she was willing to make false statutory declarations for financial reward. However, the defendants submitted the statements were true and that Sole was prevailed upon by Anthony to give perjured evidence before Derrington J. In deciding upon this submission, it is helpful to begin by considering Sole's ... 9 various versions in chronological order. The first version was that given in the statement of November 1995. There she said, so far as material: "I do not recall if Dallas had been in the bar on the night of the accident. There would have been discussions about the accident in the bar as he was a regular but I do not recall these in detail and I do not recall whether it was mentioned that he had been in the bar or whether he was intoxicated." For reasons which I shall elaborate shortly, she seems to have maintained this version at least until after 6 November 1997. The second version was that which she gave in evidence before Derrington J. There she swore that on the day in question she saw the plaintiff in the Long Bar before she ceased work at 6.30pm and that he was still there when she left at about 7.30pm. The third version was that of February 1998 when she reaffirmed the first version and admitted that what she said in court as to her memory of seeing the plaintiff in the Long Bar on the day in question was untrue. Her explanation for giving it was as follows9: "6. Sometime prior to me making that statement, I think it was, I can't be sure when it was, but Don ANTHONY came to where I work at Dairy Field Milk, on the comer of Brisbane and Pine Ridge Roads, The quotations are taken from exhibits 7 and 8 respectively. i, -- 23 of 38 -- 22 Labrador. I have been employed there four years last September. (1993?) 7. I got a phone call in the factory, it was Donnie ANTHONY. 8. He said, 'Can I talk to you, what time do you get your lunch break?' .I said, 'When I get time, I'm not sure when.' He said, 'Well I can ask you on the phone. ' I said, 'Where are you?' He said, 'At the front office. ' I said, 'What, my office?' He said, 'Yeah. I can't wait for your lunch break.' I said to ANTHONY, 'What is it you want?' He said, 'Do you remember Dallas JOHNS?' I said, 'Yep.' He said, 'You remember he was in that accident.' I said, 'Yep.' He said, 'His solicitors are looking for witnesses. If they ring you will you talk to them?' 9. I saidto ANTHONY, 'You know me Don, I talk to everybody.' He said, 'Well expect them to get in touch with you, and look after JOHNS, okay.' 10. I said to ANTHONY, 'When will they do that?' 11. 17. He said, 'I can't say when. Look after JOHNS and you will be right. Stick with me and you'll be right, you'll be looked after.' I knew what he wanted me to do. When ANTHONY asked me to give 'favourable evidence' for JOHNS, I knew what he wanted me to do." "4. Don ANTHONY told me no-one recalled Dallas being in the Hotel that day/night, and he needed witnesses to place him there, and say he was drunk. 5. ANTHONY made me "feel for Dallas", saying that if nobody remembered him being in the Hotel and drunk, he was not going to get anything from the insurance. 6. ANTHONY asked me to say I remembered Dallas was in the Hotel and drunk, while I was working and at the time I left. I don't recall him being there. () ,j (")'----~/ -- 24 of 38 -- 43 f \ 44 45 23 7. I said I recalled him being there because ANTHONY asked me to help JOHNS get his insurance claim. What I said in court was not true. I have no recollection of him being there in the afternoon, or when I left that night. 8. I am truly sorry for giving false evidence, I thought I was helping Dallas. It is true he was in the Hotel very regularly, but I can't say that he was there on the night of his accident." Sole's fourth version was that set out in the statement of26 October 1998. There, she attempted to reconcile the second and third versions. She admitted the effect of paragraphs 6 to 11, quoted above. She said that what Anthony said to her did not suggest (by implication, to her) that there was any pressure being brought to bear on her, or that she would have to say something that was untruthful. She denied receiving any threat, inducement or offer to give untruthful evidence. She said that she had no conversation with Anthony about the evidence on the morning of the trial and that when she gave her evidence she believed it to be the truth. She asserted that the evidence she gave was the truth as she recalled events at the time she gave the evidence. She said that the term "favourable evidence" was suggested by the insurance investigator Thomas and was not used by Anthony. She said she did not take the term to mean anything other than that the evidence was true and correct. She said that in saying that she knew what Anthony wanted to do, she meant to indicate that she was to provide a statement to his solicitors and to give truthful evidence at the trial. Sole then sought to explain why she had verified the statement of 8 November 1995 by a statutory declaration made on 11 February 1998. She said that when her attention was drawn to the earlier statement it created some doubt in her mind as to just how accurate her recollection of events had been at that time and at the time she gave evidence at the trial. Nonetheless, she asserted that whenever she made a statement or gave evidence up to and including the trial, she believed it to be entirely truthful at the time she made or gave it. Next, Sole dealt with the statement of 14 February 1998. She said that when Thomas first approached her, he told her she would get part of a reward of $24,000. He also told her, she claimed, that none of the information in the two statements would get out -- 25 of 38 -- 46 24 and that no name and address would be released. She claimed that he "brought a lot of pressure to bear on me and 1 became quite confused as to how my recollection of events could be so different at the trial and when 1 gave my statement of8 November 1995. As a result of that confusion and the pressure brought to bear on me by Mr Thomas to sign the statement, 1 agreed to do so finally." Sole then dealt with some, but not all, of the paragraphs of the statement of 14 February 1998, as verified by the statutory declaration two days later. She denied that Anthony said the things attributed to him in paragraph 6 of the statement (quoted above), but interestingly, did not comment on paragraphs 4 and 5. As to paragraph 7, she said: (j "1 agreed to sign that because 1 was so confused and still remain confused as to my recollection of events. Don Anthony did not bring any pressure to bear on me to say'that Dallas Johns was in the hotel and drunk while I was ( .. \ working and at the time I left. I have read the evidence that I have given ~ .,- and I did not say that I recalled Dallas Johns being drunk while I was working or at the time I left." In relation to paragraph 8, she sai~ that she was and remained confused as to her recollection of events on the night of Dallas Johns' accident. 47 Finally, there is the version, so far as it went, which was given by Sole in evidence before me. There, she asserted that Johns was in the hotel prior to 6.30pm on the day of the accident. She refused to say whether, in November 1995, she was able to recall whether or not he was at the hotel on that night. She said that the evidence which she gave before Derrington J was true. She said that the contents of the statements of November 1995 and February 1998 were not true. As to how she came to give evidence, she claimed that at some time within 12 months before the trial, Anthony telephoned her and asked her whether she would talk to the plaintiff's solicitors. In evidence-in-chief, she denied that Anthony gave her any indication of the nature of the evidence that the solicitors were looking for, but in cross-examination she volunteered that "it would be about whether or not Dallas was in the hotel." She said that the solicitors did not contact her until Mr Beattie, a law clerk in their employ, made contact a couple of weeks before the trial. She gave him a fairly lengthy statement over the telephone. Shortly before she actually gave evidence, she spoke to the plaintiff's barrister (I infer, Mr Diehm) by telephone, giving ( ') ''---.../ -- 26 of 38 -- 48 49 50 25 him the information contained in the statement of 6 November 1997. Sole admitted that, after the trial, she had been approached by the insurance investigator, Thomas. She said that he had mentioned a reward of $24,000 split three ways, her share being, as she understood it, $8,000. She also said that she had told Thomas that it was true that Anthony approached her to give false evidence. Anthony gave two versions of his initial contact with Sole. In evidence-in-chief, he said that a couple of months after his meeting with the plaintiff in 1994, he asked Sole whether she had been working on the night of the accident. She told him that she had not been working. Thereafter he kept in touch with her now and again. On one occasion, he rang her at work and asked her if she would speak to the plaintiffs solicitors. The latter wanted to talk to her about serving practices in the bar. He said he arranged to meet her and while with her, called Mr Beattie on his mobile phone. She then spoke to Mr Beattie. He was unsure when this was, but it was, he supposed, months after the first contact. He thought he had no other contact with her until he saw her in the waiting room at Mr Hampson's chambers (during the trial), apart from one telephone conversation in connection with an unrelated matter. 10 In cross-examination, the version given by Sole in the first of her February 1998 statements was put to Anthony. He agreed in substance with it. It was unclear whether he regarded it as representing events on the first occasion when he contacted Sole or on a later occasion, but he probably meant the latter. I am satisfied that a conversation along the lines of that set out above lO took place between Sole and Anthony. Sole claimed in her evidence that it occurred within twelve months prior to the trial. In the statement itself, she said that it was some time prior to November 1995. Anthony was unable to put a year on it. Mr Beattie gave evidence of a conversation with the plaintiff in early December 1995. His note of it reads: "Dallas told me that he bumped into Don Anthony last week ... and Don asked him whether the former bar manager at the hotel named Carol had given us a statement. Apparently Carol remembered the incident." See paragraph 42. -- 27 of 38 -- 26 I infer the reference was to Carol Sole. The inquiry shows that Anthony had an expectation in 1995 that Sole would give a statement to the solicitors for the plaintiff. It is therefore likely that the conversation now under discussion took place prior to that time. How long before that time, I cannot say. It may have been after Sole made her statement of 8 November 1995, but it is more likely that it was long before that, probably within a short time of the meeting between the plaintiff and Anthony in 1994. 51 Sole denied that she understood Anthony's words to mean anything other than that she should tell the truth 11. She denied that Anthony specifically asked her to say that she remembered the plaintiff was in the hotel and drunk while she was working and at the time she left. I do not believe her denials. I am satisfied that Anthony asked her to say that the plaintiff was in the hotel and was drunk, and that she understood perfectly well that she was being asked to say this regardless of its truth. That, I am satisfied, was Anthony's intention. She conveyed to Anthony her willingness to supply such evidence. 52 Despite her willingness, she w~s not in fact contacted by the plaintiffs solicitors for a period in excess of a year and a half, probably in excess of two and a half years. She was, however, contacted by a loss assessor, a Mr Longrigg, and made the statement of 8 November 1995. While the tone of that statement is generally sympathetic to the plaintiff, it contains no assertion that she saw the plaintiff in the Long Bar on the day of the accident. On the contrary, it contains the assertion that she does not recall whether he was in the bar on that night. If she were then intending to carry out Anthony's request, one C) would not expect her to have made such a statement. I think it probable that in the intervening period (perhaps over a year), she had forgotten precisely the point which Anthony wished her to make, or had changed her mind. 53 I am satisfied that when Sole made that statement, it was the truth. In other words, 11 in November 1995, she was unable to recall if the plaintiff was in the bar on the night of the accident. Indeed, as I understand her evidence, she does not even now assert that at the time she made it, this statement was false. By the time she made the statement, more than Exhibit 9. -- 28 of 38 -- 54 55 27 5Y2 years had passed since the accident. It would be surprising if the position were other than as she stated it. On 23 May 1997, the action was set down for trial in August of that year. The plaintiffs solicitors bestirred themselves. The obtained an advice on evidence from counsel. That advice identified the question of whether the plaintiff was in the bar on the day in question as an issue for the trial. Probably working from that advice, Mr Beattie contacted Mr Anthony "asking whether he would be able to, since he seemed to know everybody, whether or not he would be able to provide a barmaid or barman for that matter, somebody that could tell us about the serving practices at the hotel." Subsequently, he received a telephone call from Anthony on the latter's mobile phone and then spoke to Sole. He made no note of the conversation. However he had some recollection of it. He discussed serving practices with her. He thought he would also have asked her if she saw the piaintiffin the bar on the night of the accident - that, he thought, "was an ideal question to ask," "the first thing you would start with in terms of getting the history from her." Mr Beattie said that if she had said she saw the plaintiff in the bar, he would clearly remember . it. He had no such memory. On the contrary, his recollection was that he formed the view that she had not seen the plaintiff. He was unable to say whether he jumped to that conclusion from being told that she was not working on the night in question or whether she actually said it. That conversation was given in evidence by Mr Beattie near the end of the plaintiffs case before me, after the plaintiff waived privilege in respect of it. Its existence was, of course, unknown to the defendants when Sole was called, and counsel for the plaintiff did not put it to Sole in cross-examination. No precise version of the conversation was elicited from her. 56 I accept Mr Beattie's evidence. I am satisfied that during the conversation, not only did Sole not claim to have seen the plaintiff in the Long Bar on the night of the accident, but also that she probably told Mr Beattie that she had not seen him. It is unlikely that she remembered the detail of what Anthony had asked her to say two or three years earlier. / -- 29 of 38 -- 57 28 The trial did not get a hearing in August 1997. It began on 10 November 1997. Four days earlier, Mr Diehm of counsel (for the plaintiff) interviewed Sole by telephone. Mr Beattie was with him in his chambers while he did so. I infer that this was necessary because counsel's brief did not include a proof of evidence from Sole. I base this inference on Mr Beattie's inability to find a proof in his file and on the fact that it would have been unnecessary for Mr Diehm to have created a statement if a proof already existed. The absence of a statement is consistent with the standard of the solicitors' performance up to that point. The terms of the statement suggest that Mr Diehm was not briefed with the statement of November 1995. Whether that was so or not, I am satisfied from it that Sole did not tell Mr Diehm that she saw the plaintiff on the day of the accident. 0 58 ' I find that both when she spoke to Mr Beattie and when she spoke to Mr Diehm, Sole could not remember whether the plaintiff had been in the bar on the day of the 0 accident. On each occasion, it is most likely that an opportunity arose for her to tell the laWyer of having seen him there. She did not do so. I find that at all times up to and including the trial, it remained the position that she could not recall if the plaintiff had been in the bar on the day of the accident. 59 At the trial, Sole's evidence was that she saw the plaintiff in the Long Bar on the evening in question. According to her, she became confused about her recollection three months later, when shown her 1995 statement by Thomas. However she did not say in o February 1998 that she was confused as to whether or not she saw the plaintiff on the 0 critical day. Rather, she reaffirmed her 1995 statement that she did not recall whether the plaintiff was in the bar. In her statement of October 1998, seven months later, she said she was still confused as to her recollection of events. Despite this,she claimed before me that her evidence given before Derrington J was true. Such a sequence of absence of recall, sudden recall, absence of recall and renewed recall is incredible. I do not believe that she was unable to recall the position as late as four days before the trial; was confused about her recollection or unable to recall only three months later; yet was able truthfully to give the evidence which she gaVe at the trial. Her evidence at the trial that she saw the plaintiff in the bar on the evening in question was knowingly false. \ ----~---~- - ~-- --------~--.~------- -- 30 of 38 -- ( \. ( i 60 61 29 In summary, I find that Carol Ann Sole, a witness called on behalf of the plaintiff, gave false evidence at the trial, and did so after having been prevailed upon to do so by Anthony. Neither paragraph 2(a) of the notice of appeal nor the defendants' pleading before me raised any issue as to whether Anthony prevailed upon Sole pursuant to his ~greement with the plaintiff. Tha,t seems to be an issue of some importance, since it is essentially the only mechanism by which the plaintiff can be linked to Sole's false evidence. Such a linkage is necessary for the defendant's appeal to succeed: Wentworth v Rogers (No 5)12. Notwithstanding these omissions, Mr Hampson invited me to make a finding that the plaintiff was not a party to the dealings between Anthony and Sole. He submitted that the second defendant would be o~liged to ask me to make an opposite finding if it were to have any prospect of success in the Court of Appeal on this aspect of this case. He submitted I should make a finding because otherwise, the matter would have to corne back again for further findings. Mr Williams ignored this submission in his address and sought no finding on the point. I think Mr Hampson's submission is correct. I shall accept his invitation to make a finding on the point. 62 I have already found that the initial conversation between Anthony and Sole 63 12 probably took place within a short time of the meeting between the plaintiff and Anthony in 1994. The effect of the agreement then made between Anthony and the plaintiff continued up to the trial, as Anthony'S false evidence shows, and he still expected to get money from the plaintiff as late as mid-1998. The inference is overwhelming that Anthony's dealings with Sole were the result of his agreement with the plaintiff. That conclusion is consistent with the timing of the events, as well as with Anthony's conduct. I find the plaintiff was complicit in Anthony's conduct. I find that not only did Anthony prevail upon Sole as a result of his agreement with the plaintiff, but also that Sole gave her false evidence as a result of having been prevailed upon by Anthony. That too was not an issue strictly within the tenns of my remitter. It (1986) 6 NSWLR 534 at p 539. / -- 31 of 38 -- \ 30 seems to me I should make a finding in relation to it for the reason discussed above. In her statement exhibit 8, Sole said that (at the trial) she had recalled the plaintiff being in the hotel because Anthony asked her to help him get his irisurance claim. She said she thought she was helping the plaintiff. Anthony's meeting with her, which probably took place within a short time of his agreement with the plaintiff, has already been described. Moreover, Anthony had further contact with her on the day they both gave evidence at the trial. He"saidthat he saw her in Mr Hampso~'s waiting room; her recollection was that they encountered each other on the way to court. Both gave ~vidence on the morning of the second day of the trial, but neither was the first witness for the morning. I think the." "' ,'-' ...... -' inevitable conclusion is that Sole's false evidence was given as a consequence of Anthony's C) impositions. Was the judgment appealed from obtained by fraud in the above respects? 0 64 Neither party submitted that the conduct described above would not amount to fraud in the relevant sense. However the plaintiff submitted that I should not find that the judgment was obtained "by" fraud. This raised an issue of causation. It is convenient to deal separately with the judgment as against each defendant. Mrs Cosgrove 6S Derrington J found that Mrs Cosgrove was negligent in failing, when she first saw the obviously heavily-intoxicated plaintiff, to slow her vehicle appreciably and to keep a (~) reasonable lookout for any unexpected movement; and in wrongly assuming that the 0 plaintiffcould not and would not release his hold on the post and stagger into her path. There was not the slightest doubt that the plaintiff was heavily intoxicated. The evidence of Sole and Anthony played no part in proving the plaintiffs cause of action against Mrs Cosgrove. Indeed, in her defence, she had, perhaps irrelevantly, admitted the plaintiffs allegation that "from about 4.30pm until about 10.00pm on 24 April 1990 the plaintiff was a patron at the [Chevron] Heitel." Nor did their evidence play any part in his Honour's' findings relating to damage or his assessment of damages in the sum of $504,654.16. -- 32 of 38 -- 66 ( 67 ( 68 31 His Honour also found that ''the responsibility should be apportioned to the plaintiff to the extent of 45 per cent, as to the first defendant to the extent of 30 per cent and to the second defendant to the extent 25 per cent." That finding immediately followed a paragraph in which his Honour, after expressing his conclusion as to the liability of the second defendant, dealt with contributory negligence. He referred to the plaintiff shaving deliberately become so heavily intoxicated that he could not take care of himself and characterised his behaviour in lurching onto the roadway as being the result of that intoxication rather than of any independent negligence. He described the plaintiff as bearing a heavier responsibility than in the case of inadvertent or unpremeditated intoxication or where the dangerous consequences would not be so inevitable as they were for the plaintiff having regard to the route by which he knew he would be returning home. In the light of his apportionment of responsibility, his Honour reduc~d the plaintiffs damages by 45%, and gave judgment against the defendants for $277,560 together with certain costs. 13 I am completely unable to see how the evidence of Sole and Anthony could have had any impact on his Honour's assessment of contributory negligence. There was no doubt that the plaintiff had deliberately got himself drunk. Where he got himself drunk might have been relevant to Mrs Cosgrove had there been proceedings between her and the second defendant. However there were no such proceedings 13 and both defendants were represented by the same counsel. Moreover, Mrs Cosgrove had admitted on the pleadings the very issue the subject of Anthony's and Sole's evidence. I find that his Honour's assessment of contributory negligence and consequential reduction of damages were not obtained by fraud. In the end, I did not understand Mr Williams to submit otherwise. However Mr Williams did submit that there was only onejudgment obtained, against both defendants. He submitted that in consequence, ifit were affected in any way by fraud, then it must be wholly set aside. On this basis, he submitted that the judgment as against Mrs Cosgrove, was obtained "by" fraud. He offered no authority to support the It seems from the reasons for judgment of Ambrose J in the Court of Appeal that Derrington J was unaware of this when he prepared his reasons for judgment. -- 33 of 38 -- 69 ... .,.J_ ---------- submission that where judgment is given against several tortfeasors for the one injury to , the plaintiff, there is only one judgment. The proposition seems wrong in principle and is contrary to respected opinionl4. I reject it. I find that the judgment against the first defendant was not obtained by fraud in the respects alleged in paragraph 2(a) of the notice of appeal. Chevron Queensland Limited 70 The plaintiffs allegation that he was a patron at the hotel from about 4.30pm until about 10.00pm on 24 April 1990 was not admitted, but was not denied, by the second () -.---' defendant. The plaintiff gave evidence that he was dropped off near the hotel by his friend Justin Quilligan and went into the Long Bar at around 4.30pm.· He had no further recollection of the evening. However he said that his practice was normally to stay until 0 closing time. The 'defence did not challenge his evidence as to the time at which he arrived at the bar on the day in question. Had it done so, he could probably have called ','. Mr Quilligan to support it. Mr Quilligan gave evidence before me which was supportive of the plaintiffs evidence on the point. The defence also accepted that it was the plaintiffs habit to drink until closing time. Indeed, that was part of the defence case at the trial, as appears from the following question in cross-examination: "Would it be correct that you drank four to five nights a week usually till closing time?-- Sometimes." The only cross- examination of the plaintiff revolved around whether he ever drank elsewhere: at nightclubs or at the Surfers Paradise Hotel. He said that he hardly ever went to the Surfers Paradise Hotel, but did from time to time go to nightclubs. l) o 71 The plaintiff also called a witness named Ian Schultz. He testified that on the day 14 of the accident he arrived at the hotel between 5.00 and 5.30pm and left just before 7.00pm. When he arrived, he saw the plaintiff dritlking by himself in the bar and joined him. According to Schultz, the plaintiff "seemed as though he'd had a few beers, you know, he must have got there fairly early or something ... ". After a chat with the plaintiff, Schultz Glanville L Williams: Joint Torts and Contributory Negligence (1951). pp 71-2. -- 34 of 38 -- 72 33 went to another bar. In cross-examination he said that the plaintiff was drinking rum and coke; and was in a very happy mood but not "silly at all with his speech or anything". Sole placed the plaintiff in the bar from some time prior to 6.30pm until 7.30pm. In cross-examination she asserted a specific recollection of his being there on the night of the accident. Anthony placed the plaintiff in the bar between 6.30pm and 8.30pm. He adhered to these times in cross-examination and gave a reasonably detailed description of the plaintiff for the two hour period. I have described his evidence in a little more detail above. 73 The defence called one witness in relation to the question of the plaintiff's presence ( at the hotel. That was Christine Klauer, a barmaid on duty in the Long Bar from 5.30pm to 10.30pm on the relevant day. Her evidence was that she did not recall his being there. She said she thought that if he had been there till 10.00pm she was fairly sure that she would remember ifhe had been very drunk. She had become aware of the accident within '. a week after the event, she said. Moreover, the accident happened on a Tuesday, which was always a quiet night. In cross-examination, she denied that the fact that it was the eve of Anzac Day made any difference. She agreed that she could not say that the plaintiff ( definitely was not in the bar on the night in question. 74 In address, Mr Williams (who appeared at the trial for the defence) submitted that 75 his Honour should not draw the inference that the plaintiff remained in the Long Bar between 8.30 and 10 o'clock or 1O.15pm. He referred to evidence that the plaintiff sometimes would leave the bar after the happy hour. He submitted it was a quiet night, the plaintiff was alone after Anthony left and that it was at least equally as possible that he left the bar and went elsewhere as it was that he stayed. He submitted that the evidence ofMs Klauer forced the conclusion that he did not stay. Derrington J's findings in relation to the second defendant were as follows: "Its bar staff continued to serve the plaintiff until he reached the state of intoxication described above. For some time before he left the hotel, he must have been patently affected by his intoxication and yet he was supplied with liquor to the degree revealed by his blood alcohol level. -- 35 of 38 -- 76 34 There was no direct evidence that he remained at the hotel until shortly prior to the accident, but this is strongly inferred from the circumstantial evidence. He was seen there over a period of some hours and about two hours before the accident, he was plainly in a befuddled state. In such circumstances it was his habit to continue to drink at the hotel until closing time and to go from there to the bus-stop where the accident occurred. He was not in the habit of drinking at other hotels in that area, and it is unlikely that he went [to] a night-club on that evening. There was conflicting evidence as to the policy of the hotel in respect of 'supply of alcohol to intoxicated customers. On all the evidence such customers were supplied, the only disparity in the evidence being the degree of intoxication involved before refusal to serve. A former employee claimed that the benchmark was only rudeness or abuse or disturbance of other customers by the customer. Another employee said that it was the time when the customer had difficulty picking up change from the counter or was staggering. The difference is minimal and irrelevant in the present case. Whatever the rule, the plaintiff was served up to the state of gross intoxication when he was a danger to himself, for it was known to the bar staff that he would then go home by a route that would take him into close proximity to a busy highway. Again, the primary responsibility was the plaintiff s, but, knowing that an intoxicated person would place himself into a position of danger on leaving the hotel, a publican cannot continue to supply him with the means of greater intoxication without regard to the danger to which he is thereby contributing. While the plaintiffs fault is enlarged because he deliberately drank intending to become intoxicated, there is some substance to the argument that at a certain stage his judgment as to how far he should go would be impaired." . Derrington J inferred that the plaintiff remained at the hotel until shortly prior to the accident. He effectively rejected the submission advanced on behalf of the second defendant. His finding that the plaintiff "was seen there over a period of some hours and about two hours before the accident he was plainly in a befuddled state" must have been based on the evidence of Anthony and Sole. That finding r,Ylated to a question of fact contested by the second defendant at the trial. The finding was relevant to the issues of liability and contributory negligence. It follows in my view that the judgment based on the finding was tainted by fraud. ---.~-~---.-... " o o o () -- 36 of 38 -- 77 ( 78 79 35 On behalf of the plaintiff, Mr Hampsop argued that this was not the end of the matter. He submitted that I should make a finding as to whether the same judgment would have been given in any event; in other words, whether the fraudulent evidence made no difference to the outcome of the case. He submitted that I was required to make this finding because this question was one of "the issues raised by para 2(a) of the notice of appeal" and therefore was one of the matters remitted to me. He submitted that even if the judgment was tainted by fraud, the Court of Appeal had a discretion as to whether to order a new trial; and this question was one relevant to the exercise of that discretion. Mr Williams submitted that the question of the discretion was one for the Court of Appeal, and that there were no matters of fact bearing upon it which I ought to find. That included questions such as whether the same judgment would have been reached in the absence of the evidence of Anthony and Sole and whether the defendants had any further evidence to put forward on the topic. I accept that it is undesirable that there be issues of fact remaining outstanding when the matter comes back before the Court of Appeal. However I do not think that this entitles me to go beyond the issues remitted to me, particularly when one party opposes this. The plaintiff doubtless had the opportunity to influence the form of the order made by the Court of Appeal, and does not seem to have suggested that issues relating to the exercise of the court's discretion should be the subject of investigation by the Trial Division. I do not think the question is one of the issues raised by paragraph 2(a) of the notice of appeal within the meaning of the remitter. Moreover, I am not satisfied that the relevant discretionary issue is resolved simply by determining what would have been the outcome on the evidence given at the trial minus that of Anthony and Sole. Had Anthony and Sole not been called, the tactics adopted by the second defendant at the trial might have been different. The cross-examination might have been different. I accept Mr Williams' submission. I decline to make findings in relation to facts relevant to the exercise of the Court of Appeal's discretion. Summary I determine the issues remitted to the Trial Division as follows: The judgment against the second defendant was obtained by fraud in that: -- 37 of 38 -- 36 (i) Bruce Donald Anthony, who was called on behalf of the plaintiff and gave evidence at the trial, was not in fact a witness to the events he swore he witnessed; (ii) In or about the early months of 1994, Anthony orally agreed with the plaintiff to give false evidence on the plaintiffs behalf and to find others to give false evidence in return for the plaintiff's promise to pay Anthony the sum of $20,000; (iii) Carol Ann Sole, a witness called on behalf of the plaintiff, gave false evidence at the trial, and did so after and as a result of having been prevailed upon to do so by Anthony, pursuant to the agreement 0 referred t,o in paragraph (ii). The judgment against the first defendant was not obtained by fraud. (J ---.----- -- 38 of 38 --