When will the NSW Court of Appeal remit a matter for retrial rather than making a determination of its own?

Saltalamacchia v Zamagias [2024] NSWCA 184

On 1 August 2024, the Court of Appeal upheld an appeal against a liability decision of a judge of the District Court under the Motor Accident Injuries Act 2017 (NSW) (MAI Act). The appeal was upheld on the basis that the primary judge’s reasons for not accepting the evidence of the appellant driver and her passenger – as to how the accident happened – amounted to an error of fact. Although mindful of the restraint on appellate interference in a trial judge’s finding of fact based on credibility of witnesses, the Court of Appeal found the case fell within the category of error identified in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, involving a finding contrary to incontrovertible facts.

The Court of Appeal remitted the matter to the District Court for a retrial. It noted that the absence of any independent evidence casting light on the factual question for determination makes this case unusual. Such a case cannot justly be resolved on the transcript alone, and the contest will ultimately be determined solely by conclusions on reliability and credit of the witnesses.

Background

On 22 May 2018, the respondent was injured in a collision with the appellant at a T-intersection where Access Road (the terminating street) meets Hoxton Park Road, that is governed by a set of traffic signals. Both vehicles had been travelling east in Hoxton Park Road.

The respondent was travelling east on the transit way (T-way) in a lane reserved for buses and associated vehicles, which he was entitled to be in.

The appellant was stationary in a right-hand turn lane in Hoxton Park Road, waiting to turn right into Access Road. The T-way lane was to her right.

The respondent’s case was that as he was driving through the intersection, a white ‘B’ signal was displayed, giving him right of way to continue straight, and when he crossed the line into the intersection, the appellant’s car, located to his left in the right-hand turn lane, turned directly in front of him, colliding with his vehicle.

The appellant contends that she turned right when a green right-hand arrow appeared, and the collision then occurred.

The issue at trial was which of the two drivers disobeyed a traffic control signal. The primary judge resolved this issue in favour of the respondent, awarding him damages.

The appellant appealed on liability only, contending that the primary judge erred in finding that the appellant had turned right against a red arrow. This finding relied, in part, on a misstatement of the content of the appellant’s statement to a police officer shortly after the accident.

Significant points of the Court of Appeal judgment

Most significantly, the Court of Appeal found the following:

• A review of the evidence and the primary judge’s reasons revealed a factual error in the judge’s rejection of the appellant and her passenger’s accounts of the accident. The primary judge incorrectly noted that their statements made immediately after the accident indicated the appellant did not observe the traffic light before turning. However, their statements to police in May 2018 show the appellant did, in fact, check the traffic light and saw a green right-hand arrow to turn right and a red ‘B’ light.
• The primary judge’s conclusion was based on a misunderstanding of the evidence of the appellant and her passenger, which was consistent in court and in police statements. This factual error was significant and influenced the primary judge’s decision. The Court of Appeal recognised this error fell within the category identified in Fox v Percy, where a finding is contrary to incontrovertible facts.
• The respondent’s Notice of Contention – which asserted that the primary judge, when rejecting parts of the passenger’s evidence regarding a purported conversation with the respondent, ought to also have found the balance of the passenger’s evidence was unreliable – lacked merit. This is because it was reasonable for the primary judge to accept parts of the passenger’s evidence and not others.

In Fox v Percy, the court emphasised the importance of appellate courts finalising matters while also recognising credibility issues sometimes necessitate a retrial. In a case where factual disputes rely heavily on witness credibility that cannot be resolved by transcript alone, a new trial is appropriate.

In this case, the primary judge made significant factual errors, particularly in interpreting the evidence of the appellant and her passenger.

The Court of Appeal noted the evidence presented by both parties was evenly balanced and lacked objective support. The nature of the factual dispute requires credibility assessments that cannot be made solely on the transcript.

In line with Mastronardi v State of New South Wales [2007] NSWCA 54 and Lichaa v Boutros [2021] NSWCA 322, where substantial factual errors or inadequate reasoning affect the outcome and the trial’s fairness, it is necessary for the matter to be remitted for retrial.

The Court of Appeal determined that the matter be remitted to the District Court for a retrial on liability only. The respondent was ordered to pay the appellant’s costs of the appeal.

Implications for parties

When the Court of Appeal sets aside the trial judge’s finding in a matter involving two competing versions of events – and this contest needs to be determined solely by conclusions on reliability and credit of the witnesses (due to a lack of objective, contemporaneous or independent evidence to corroborate the claims made) – the Court of Appeal is then unable to substitute its own finding. Consequently, the matter must be remitted for retrial.

This will be an unusual situation, and the rules provide that the court is not to make such an order unless it appears to the court that some substantial wrong or miscarriage has been occasioned: UCPR, r 51.53(1).

You can read the full judgment here.