Kendirjian v Ayoub  NSWCA 194
Beazley and McColl JA
- A practitioner has a positive statutory duty to assist the Court of Appeal in providing adequate written submissions prior to the hearing of the matter;
- In the event a practitioner is inadequately prepared, the Court may exercise its discretion to order that the practitioner(s), personally bear the wasted costs, pursuant to s 99 of the Civil Procedure Act 2005, and
- It is not material whether surveillance relied upon in proceedings is infrequent or of short duration. The significance of surveillance is whether it depicts a conflict between what is observed during surveillance and the evidence given by the Appellant. In circumstances where such conflict arises, there must be significant doubt as to the Appellant's credit.
The New South Wales Court of Appeal handed down its decision in Kendirjan v Ayoub on 14 August 2008.
The Appellant, was injured in a motor vehicle accident on 21 November 1999. Liability was admitted by the Respondent.
The Appellant argued at trial that as a result of the motor vehicle accident, he was severely disabled both physically and psychologically. He also alleged that he was unable to continue his pre-accident business as an auto electrician.
The Respondent argued that the Appellant had exaggerated his medical condition, and if in fact he was as severely disabled as alleged, it was causally related to an operation performed by an orthopaedic surgeon outside of competent professional practice, rather than to the motor vehicle accident.
During the hearing, the Respondent tendered video surveillance of the Appellant taken in 2000, 2002 and 2004. The video evidence taken in 2000, showed the Appellant working as an auto electrician with no apparent disability. In evidence, the Appellant alleged that at approximately the time the video was taken he had to give away his business due to the pain he was experiencing.
Additionally, during the trial, the Appellant gave his evidence while he alternatively sat and stood in the witness box, and upon being questioned as to this behaviour, gave evidence that his injuries necessitated it.
Trial Judge's Decision
Delaney DCJ found that the Appellant was suffering from soft tissue injuries to his neck and low back and was also suffering from a psychological condition as a result of his physical disabilities.
The trial judge also accepted that the video evidence adversely impacted upon the reliability of the Appellant's evidence, namely that it was inconsistent with the Appellant's allegation that, at the time the surveillance was taken, he was significantly physically handicapped.
At first instance, Delaney DCJ assessed the Appellant's damages at $308,432.75
Appellant's conduct of the Court of Appeal proceedings.
McColl JA (with whom Beazley JA agreed), noted at paragraph 40, that the Notice of Appeal did not have a "happy history".
The Appellant filed a Notice of Appeal on 25 January 2007, alleging that the trial judge erred in his assessment of general damages, economic loss and future treatment expenses. It was also alleged the trial judge erred in failing to conclude the Appellant had satisfied the requirements of s128 of the Motor Accidents Compensation Act (1999), disqualifying the Appellant from recovering damages for gratuitous domestic assistance. However, the Appellant's written submissions in support of the Notice of Appeal generally argued that the trial judge had failed to provide any, or any adequate, reasons for his conclusions.
The Appellant then filed an Amended Notice of Appeal on 11 April 2007, which attacked each of the heads of damages referred to in the Notice of Appeal on the basis of alleged inadequacy of reasons.
During the early stages of hearing of the Appeal, it was discovered that only the original Notice of Appeal was contained in the Red Book, and not the Amended Notice of Appeal. This caused difficulties for both the Court and the respondent as the Respondent had prepared written submissions in response to the Amended Notice of Appeal.
The Appellant sought leave to file a Further Amended Notice of Appeal, consolidating the two earlier Notices. Leave was granted as the Court of Appeal could not identify any prejudice to the Respondent.
Despite the Notices of Appeal being consolidated, the Appellant relied on his written submissions dated 11 April 2007, which generally alleged that the trial judge did not adequately analyse the Appellant's evidence nor reveal the reasons for his conclusion. The one passable exception to the generality of the written submissions was the contention that the award for non-economic loss, ought to have been "significantly higher".
McColl JA, was highly critical of the Appellant's inadequate written submissions, and noted at paragraph 47:
"47. In short, the Appellant's written submissions afforded the Court no assistance on either version of the Notice of Appeal on foot at the time the appeal hearing commenced. There was no analysis of the approximately 680 pages in the Blue Books or the 250 pages of transcript in the Black Book, nor did the Appellant file a Schedule of Damages: cf Pt 51rr 40 and 46, Supreme Court Rules 1970 which relevantly applied to the Appeal. Nor, as the Respondent's written submissions point out, did the Appellant's submissions identify any relevant evidence the primary judge had failed to refer to, identify any material findings of fact the primary judge had failed to set out in respect of His Honour's findings of fact and ultimate conclusions: cf Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 (at 443) per Meagher JA."
As the hearing proceeded, the Court of Appeal voiced its concerns to the Appellant's counsel about the inadequacy of the written submissions and the inconsistencies in the oral argument. At the conclusion of the hearing, the Court ordered the Appellant's legal representatives to file and serve submissions detailing the evidence that the trial judge failed to consider and what the outcome ought to have been if such evidence was considered.
Further submissions were provided by different counsel engaged by the Appellant which, on instructions from the Appellant's solicitors, only addressed the issue of an erroneous assessment of damages. The Respondent pointed out to the Court that the submissions did not address all of the issues as requested by the Court.
On 20 November 2007, the Appellant filed a Notice of Motion seeking leave to file further supplementary submissions and leave was granted by the Court.
The further supplementary submissions contended that a substantial miscarriage of justice had occurred arising from the trial judge's characterisation of the Appellant's behaviour as "bizarre", as well as his Honour's heavy reliance upon only part of the video surveillance.
The Court of Appeal's decision
McColl JA, at paragraph 160, criticised the Appellant's written submissions stating that they "nit-picked", rather than looked at the substance of the trial judge's reasons.
The Court of Appeal found that not only did the trial judge sufficiently refer to the medical evidence favourable to the Appellant's case, he adequately identified the basis on which he rejected it.
In relation to the conclusions the trial judge made from the video surveillance, her Honour stated at paragraph 119:
"119. In my view the adverse conclusions his Honour drew were well open to him...It is facile to say that the video evidence amounts to only 3 or so hours of observations over six or so years. The significance of what they depict lies in the conflict between the image they present and the image the Appellant sought to portray in his evidence of almost total disability. Significantly, as the primary judge concluded, they show the Appellant apparently working normally at a time he sought to persuade the primary judge that he had to close his business. That alone would cast significant doubt on a plaintiff's credibility".
The Appellant argued that, inter alia, the trial judge failed to consider that on crossexamination the Appellant did not make any significant concessions. However, her Honour reasoned at paragraph 165:
"165. Staunch adherence in the witness box to subjective evidence of disabilities belied by objective video evidence is just as, if not more, damning of a witness's credibility, than an appropriately made concession."
In addition, her Honour noted the lack of objective medical evidence going to the Appellant's disabilities. Rather, most of the medical opinions were largely, if not entirely, based on the Appellant's complaints.
Adequacy of Reasons
McColl JA noted that there was no absolute rule as to the requirement to give reasons, confirming the principles as set out in Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services  1 All ER 373; at paragraph 170.
However, her Honour confirmed that the trial judge had a positive duty to expose the reasons for resolving points that were in issue between the parties (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247).
The Court held that the trial judge satisfied the rule Flannery, and analysed and referred to the medical evidence, exposing his reasons for accepting or rejecting, as the case may be, the parties' contentions.
Section 61 certificates
The Court of Appeal considered and reaffirmed the decision of Brown v Lewis  NSWCA 87.
It was noted that the trial judge had fallen into error when assessing the Appellant's economic loss. The trial judge had treated the s 61 certificates as conclusive on the issue of the Appellant's earning capacity. At paragraph 189, McColl JA confirmed that the effect of a s 61(2)(a) certificate is to determine whether the degree of permanent impairment exceeds the threshold and did not have a conclusive effect on the issue of damages for economic loss.
However, this error of the trial judge was not in issue on appeal as ultimately his Honour's error did not result in an inadequate assessment of damages for economic loss.
A Court has the discretionary power pursuant to s 99(1) of the Civil Procedure Act (2005) to order that a legal practitioner bear costs which have been incurred by the serious neglect, incompetence or misconduct of a legal practitioner or improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible.
During the Court of Appeal proceedings, the Appellant's original counsel conceded that the legal representatives would bear the burden of those costs that were wasted.
In considering the discretion, the Court may look to ss 56(3) and (4) of the Civil Procedure Act, which places a positive duty on practitioners to assist the court in achieving a just, quick and cheap resolution: s 56(5).
McColl JA concluded that the Appellant's legal practitioners' failure to provide adequate written submissions prior to the hearing caused both the Appellant and the Respondent to have to comply with further written submissions.
Her Honour reasoned at paragraph 212:
"212. In my view the costs of any more than one set of written submissions were wasted costs incurred by the serious neglect of...(the Appellant's solicitors)...The costs of the Motion were also wasted costs occasioned by the Appellant's solicitors' serious incompetence..."
The Court of Appeal dismissed the Appeal and made orders that the parties file further submissions as to who should bear the burden of wasted costs, and whether such costs should be on an indemnity basis.
This case is a warning to all parties of the importance in preparation for hearing, not only in the Court of Appeal but all jurisdictions. It highlights the positive duty legal practitioners have to assist the Court in their written submissions and the necessity to comply with statutory requirements.
This case also serves to highlight that the Court of Appeal will exercise the discretionary power in s 99 of the Civil Procedure Act to deal with legal practitioners who fail to comply with Court orders. The reasoning of McColl JA is a useful summary of what standard of preparation is required by parties' legal representatives when appearing before the Court of Appeal.
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