Kikorio v Harmon [1990] CKCA 2; CA 07.1989 (1 March 1990)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
(SITTING AT AUCKLAND)
C.A. 7/89

BETWEEN

PETER KIKORIO
Appellant

AND

LEE HARMON
FIRST RESPONDENT

AND

WILLIAM ESTALL (JUNIOR)
SECOND RESPONDENT

Coram: Roper C.J
Chilwell J
Barker J

Counsel: D.M. Sceats for appellant
B.J. Gibson for first respondent
C.G. McKie for second respondent

Hearing: 5 February, 1990 (In Chambers at Auckland)
Judgment: 1^st March, 1990

JUDGMENT OF THE COURT DELIVERED BY BARKER J.

On 16 December 1988 in the High Court of the Cook Islands at Rarotonga, Quilliam J delivered a reserved judgment in which he awarded damages of $42,450 plus costs disbursements and witnesses' expenses to the first respondent (plaintiff) against the appellant (first defendant). Quilliam J also entered judgment in favour of the second respondent (second defendant) against the plaintiff for costs with the direction that the quantum of these costs should reflect the fact that there was an allegation of contributory negligence against the plaintiff which was subsequently abandoned.

The case involved a claim for damages for personal injuries, sustained by the first respondent on 1 January 1987, when a pillion passenger on a motor cycle driven by the second respondent; the motor cycle collided with a motor vehicle driven by the appellant.

After a two day hearing, Quilliam J found that the accident was due wholly to the negligence of the appellant. He exonerated the second respondent of negligence and assessed damages for the plaintiff who had been quite seriously injured.

On 7 April 1989, Dillon J gave leave to appeal to the appellant and fixed security for costs at $4,000, to be paid by 10 May 1989. The appellant did not pay the security nor provide a bond within the time prescribed. On 11 May 1989, counsel for the appellant sought directions in the High Court and an extension of time for giving of security.

On 16 May 1989, counsel for the respondents submitted to Roper CJ that the High Court had no jurisdiction to entertain the appellant's application for extension of time. In a considered judgment delivered on 27 July 1989 Roper CJ held that, because the appellant had been granted leave to appeal, the appeal should proceed to a hearing but that it will be for the Court of Appeal on the hearing of the substantive appeal to rule on the consequences of the appellant's failure to give security in due time.

On 15 August 1989, Roper CJ granted leave to the respondent to appeal against his decision of 27 July 1989, on terms that the proposed appellant give security for costs of $400. Because this appeal involves a question of law and can be resolved on written submissions, leave was granted to counsel pursuant to S. 7 of the Court of Appeal Rules to file written submissions. These have not yet been filed.

Both the appeal on the point of law from Roper CJ and the appeal from Quilliam J on the substantive action have yet to be heard. However, on 15 January 1990, counsel for the appellant, moved under R. 22 of the Court of Appeal Rules and S. 57 of the Judicature Act 1980-81 for leave to adduce fresh evidence in this Court. Counsel agreed that the application be considered on written submissions. Consequently, the application was considered by 3 members of the Court sitting in Chambers in Auckland.

The evidence sought to be admitted is found in two affidavits - one from Jeffrey Gary Gerbich, a senior traffic sergeant with the Ministry of Transport in Auckland - the other from Dr Barry William Axon, a scientist with the chemistry Division of the Department of Scientific and Industrial Research in Auckland, experienced in forensic investigations. For the reasons stated in each affidavit, each deponent offers the opinion that it is not possible to determine the point of collision between the two vehicles involved and that Quilliam J's finding that the accident occurred on the seaward side of the road was not a tenable conclusion from the known facts.

There had been pre-trial evidence, taken before Roper CJ on 28 September 1988 of a Mr Graham who had been a police officer at the time of the accident and who had attended the scene. The record of the evidence taken before Quilliam J comprises a full record of the plaintiff's evidence only. The record of the evidence of the other witnesses comes from the notes made by Quilliam J in his notebook.

Quilliam J noted in his judgment that the plaintiffs case was that the motor cycle was travelling on its correct side and that the appellant's car came across the centre line on to its incorrect side and collided with the motor cycle. The appellant had urged before him that it was the action of the motorcyclist swerving out across the road, perhaps to avoid a large puddle of water, which caused the accident. There was no eye witness to the impact. A Miss Puna saw the appellant's car immediately after the impact. The appellant placed the point of impact near the left hand side of the road in the direction he was travelling, i.e. close to the inland edge of the road.

The learned Judge rejected the appellant's evidence which he considered was contrary to the balance of the other evidence. He noted that the plaintiff, the second defendant and the motor cycle all finished up off the road on the seaward side in the vicinity of a driveway leading to the airport authority residence. On the balance of probabilities, Quilliam J could not see how the impact could have occurred anywhere near the spot claimed by the appellant on his side of the roadway. The Judge held that the accident occurred on the appellant's incorrect side of the road.

Whilst he did not conclude that the appellant was untruthful, our impression from reading the judgment is that the Judge did not regard the appellant's evidence as reliable; he preferred the version of the other witnesses, particularly the respondents.

Quilliam J treated the evidence of Miss Puna with some caution but found that her evidence accorded generally with the balance of the evidence. He found that the causative negligence of the appellant was his failure to keep to the left of the road. He also found that the motor cycle did not swerve, even though there was probably a fairly large puddle on the carriageway. He found that, although the second defendant had been drinking on the day in question, his consumption of alcohol was not a causative factor of the accident.

It was against these findings by a very experienced Judge in a common fact situation that we must now consider the application for leave to call further evidence.

The criteria applied in both England and New Zealand on applications to call fresh evidence on appeal are well known and can be found in cases such as Ladd v Marshall [1954] EWCA Civ 1; [1954] 3 All ER 745, Dragecivich v Martinovich, [1969] 1 NZLR 306 and Green v Broadcasting Corporation of New Zealand, [1988] NZCA 180; [1988] 2 NZLR 490. First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial. Secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive. Thirdly, the evidence must be such as is presumably to be believed; in other words it must be apparently credible, although it need not be incontrovertible.

Counsel for the appellant first submitted that both the Act and Rules make no reference to special leave or special grounds. We quote them as follows -

S. 57 of the Judicature Act 1980-81:

"Evidence on appeal - Every such appeal shall, so far as it relates to any question of fact, be determined by the Court of Appeal by reference to the evidence heard at the trial as certified under the seal of the High Court, and no further evidence shall, without the leave of the Court of Appeal, be heard or admitted."

R. 22 of the Court of Appeal Rules 1981-

"Right to adduce new evidence:

(1) It shall not be open, as of right, to any party to an appeal to adduce new evidence in support of his original case, but a party may allege any facts essential to the issue which have come to his knowledge after the date of the decision from which the appeal is brought, and may adduce evidence in support of his allegations.

(2) The Court of Appeal may in any case, if it thinks fit, allow or require new evidence to be adduced, either by oral examination in Court, by affidavit, or by depositions taken before an examiner or commissioner."

R. 36 of the Court of Appeal Rules in New Zealand provides -

"36. Admission of further Evidence:

(1) The Court shall have full discretionary power to receive further evidence on questions of fact by oral examination in Court, by affidavit, or by depositions taken before an examiner or examiners.

(2) On an interlocutory application, or in any case as to matters that have occurred after the date of the decision from which the appeal is brought, such further evidence may be given without special leave.

(3) On an appeal from a judgment or order after trial or after the hearing of any cause or matter on the merits, such further evidence shall be admitted only with the special leave of the Court and on special grounds, unless it is evidence as to matters subsequent to the decision as aforesaid."

We see no real difference between the two sets of provisions such as would lead us to apply a more relaxed test in the Cook Islands. The criteria for admitting fresh evidence cited are consistent with the principle that there should be finality to litigation.

Each of the three criteria must be met. Assuming that the second and third are arguably satisfied in this case, we consider that the first criterion has not been met. We are not satisfied that the proposed evidence could not have been obtained with reasonable diligence for use at the trial. Obviously, in an accident case where various allegations in the pleadings claimed that each driver was travelling on his incorrect side of the road, it was inevitable that the trial Judge would have to ascertain the point of impact. If the point of impact were on the appellant's side of the road, then the likelihood was that the motor cyclist was negligent and vice versa. The appellant could have obtained the evidence he now wishes to call. There was no affidavit to offer a reason why the evidence could not have been available at the trial. The appellant is not entitled to bolster his evidence at trial either because of the line he takes at the trial or because of his deliberate choice not to call evidence which might have been available with reasonable diligence.

Counsel for the appellant submits that the finding of the Judge as to the point of impact could not possibly have been foreseen. We reject that submission. The Judge's finding must have been a possibility to anybody preparing this case for trial.

A useful authority in this area is Sulco Ltd v E.S. Redit & Co Ltd, [1959] NZLR 45. That was an application for leave to adduce additional affidavit evidence in the Court of Appeal on an appeal against a refusal of a new trial. The Court refused the application on the grounds that it would be impossible fairly to evaluate the additional evidence as against the evidence already heard in the action; such evidence could be justly admitted only in the course of a complete rehearing of the whole case. We think that would have to be the result of the admission of new evidence here.

The criteria followed in Sulco v Redit must be considered in the light of the subsequent Court of Appeal decision of Dragecivich v Martinovich and Green v Broadcasting Corporation (supra). Sulco v Redit followed Orbell v Mossman [1927] NZGazLawRp 12; (1927) NZLR 353 which expressly was not followed in Dragecivich v Martinovich. However, dicta relating to the first criterion for the admission of fresh evidence are relevant; they are unaffected by the later authorities which expressed the second criterion more liberally than did Orbell v Mossman.

In Sulco v Redit, Henry J said of the evidence proposed to be placed before the Court of Appeal-

"It (the appellant) failed either to obtain this information or to anticipate it; it cannot now ask for permission to call evidence on it. Sargood v Corporation of Dunedin (1888) 6 NZLR 489. To admit such evidence would be tantamount to allowing the appellant to bolster up its case with additional evidence which was available at the time of the trial but which was not considered because of the particular view which was taken when the case was presented."

The further evidence to be called in Sulco v Redit was directed to proving that a witness at the trial called Talboys could not have dug holes which he described in his evidence. Turner J said of the proposed evidence at 83-

"It undoubtedly goes a long way towards inducing conviction that, if it had been called in the first place, it must have lead to a very careful scrutiny of the evidence of Talboys. Possibly it would have lead to the rejection of his testimony: it is quite impossible for an appellate Court to say. It would undoubtedly have been of great advantage to the trial Judge to have had this evidence led before him, and to have seen how Talboys had responded to cross-examination upon it; but the evidence was not so led, and Talboys was not cross-examined upon it; but the evidence was not so led. We are now asked (as the trial Judge was asked) to rule that the evidence should have been admitted in rebuttal on the ground, it must be remembered, that it is evidence of the 'efficacy of the tests' made by Talboys."

Later at page 85 Turner J said-

"It was open to the appellant's advisers to sink their holes before instead of after the trial; it was open to them to interrogate Talboys before the trial as to the investigation, if any, that he had made. They did not follow either course, and it cannot now lie in their mouths to submit that Talboys' evidence, has 'radically misled' the Court - or that other evidence generally supporting Talboys' case has had the same effect so to hold would be to put a premium on the incomplete preparation and presentation of the cases of plaintiffs, entitling them, by reason of their very incompleteness, to regroup their forces without penalty for a second assault. The public interest which requires the due conclusion of litigation weighs heavily against the acceptance of the submissions which Mr Harding has put forward on this final ground."

To similar effect in a motor accident case is the succinct judgment of the English Court of Appeal in Delaney v Douglas [1969] 3 All ER 1454. The trial Judge had believed evidence that there was a car parked in a certain location; he rejected evidence which suggested to the contrary. Another witness was found, some time after the trial, to add his evidence to that in favour of a car being parked. The Court of Appeal affirmed the requirement of reasonable and due diligence on the part of those preparing for trial in much the same way as did Turner J in the passage quoted.

In our view, the evidence now proposed to be called on behalf of the appellant is such as could have been available at the trial. All the basic information as to the facts of the accident, maps etc could have been ascertained and opinions sought from experts in New Zealand.

Although we realise that there is great additional cost in bringing such experts from New Zealand to the Cook Islands we note that the appellant now considers such a course to be economically justified. This was a major case of its kind and the plaintiff's injuries were serious. If successful a large award of damages to the plaintiff was a distinct possibility. Accordingly, it behoved the defendant to prepare with due diligence.

As was the situation in Sulco v Redit, we are also of the opinion that it would be impossible fairly to evaluate the additional evidence as against the evidence already taken before the trial Judge. This difficulty is insuperable if the new affidavits are placed before the Court. The deponents have not been cross-examined. Even assuming the possibility of allowing evidence to be adduced orally with cross-examination, the difficulty of comparative evaluation as against the volume of evidence already taken viva voce before Quilliam J remains so enormous that merely to mention it makes the difficulty of such a procedure apparent.

If a new trial were granted then the additional evidence could be lead. We deliberately say no more on that point because we do not wish the rejection of this evidence at this stage to affect the right of the appellant to prosecute his appeal to this Court from the judgment of Quilliam J. We do not wish it to be thought that we have reached a view on the merits of that appeal. Suffice it to say that we reject the application to call fresh evidence on the grounds -

(a) The evidence does not satisfy the criterion that the evidence could not have been available at trial by use of reasonable diligence;

(b) It is impossible to assess the proposed evidence other than in the context of the other evidence heard viva voce by the trial Judge who saw and heard the witnesses. For that reason granting the application would be to allow the appeal, without the appeal having been argued on the merits.

The application is therefore refused. We think it important that both pending appeals be considered. The first respondent should indicate whether he wishes to prosecute the appeal against the decision of Roper CJ on the jurisdictional point. Such an appeal could be heard in New Zealand on written submissions. If this appeal were successful, then the appeal against Quilliam J's decision would be spent.

Alternatively, the parties may think it more economical if the appeals from both Roper CJ and Quilliam J were to be heard together. It would be appreciated if counsel could file memoranda as to their intentions. Obviously in that circumstance a Court would have to be constituted which did not contain either of those Judges.

We prefer to say no more on the facts of this case in view of the pending appeal, which will now be considered on the notes of evidence.

Costs to the first respondent against the appellant of $500 plus disbursements as fixed by the Registrar.

BARKER J