Full Court Matters - October 2001

(Other than Applications for Special Leave to Appeal)

COMMENCING 2 OCTOBER 2001

GERSTEN v. MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS (S177/2000)

Court appealed from: Full Court of the Federal Court of Australia

Date of judgment: 5 July 2000

Date referred to the Full Court by Gaudron J: 16 May 2001

RE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS; EX PARTE GERSTEN (S78/2001)

Date referred to the Full Court by Gaudron J: 16 May 2001

The Applicant is an American citizen and former Florida State politician who arrived in Australia in September 1993. In October 1993 he applied for refugee status. The Applicant claimed that he feared persecution in the USA for reason of his political opinion. Specifically he claimed that an investigation into his stolen car in 1992 was being used by the then State Attorney-General, Ms Janet Reno, (and others) to damage him politically. The car itself was later recovered in the possession of two convicted felons, one of whom was a prostitute. They claimed that the Applicant had solicited the prostitute for sex and had purchased crack cocaine at a crack-house. Based on their statements, the authorities claimed that the Applicant's car was stolen while he was visiting a crack-house. This account differed from what the Applicant said had happened to his car.

In the investigation that followed, the Applicant was subpoenaed to give evidence. He answered the questions selectively and he claimed that the investigation itself was motivated by bad faith. Enforcement proceedings were then commenced in the Eleventh Judicial Circuit, where the Applicant again refused to answer questions. As a result, Judge Dean jailed him for 3 weeks for civil contempt. An appeal against her Honour's ruling was ultimately unsuccessful, as was a later appeal to the United States District Court. In the meantime, however, the Applicant, who had been released on bail, left the jurisdiction.
In relation to S177/2000

In December 1993 a delegate refused the Applicant's application for refugee status. On 8 October 1998 the Refugee Review Tribunal ("RRT") did likewise and Justice Katz dismissed an application for judicial review on 17 December 1999. On 5 July 2000 the Full Federal Court (Hill, Mathews and Lindgren JJ) unanimously dismissed the Applicant's appeal. Their Honours held that the RRT had not applied the wrong test for causation of persecution, nor had it failed to make a material finding concerning the existence of the alleged political vendetta. Their Honours also rejected the submission that the RRT failed to consider whether the Applicant's treatment while in jail was persecutory. The Full Federal Court further found that the RRT had not erred in considering what constitutes persecution and it also rejected the submission that Justice Katz was biased.

The questions of law said to justify the grant of special leave to appeal are:

 

• The causation test for whether the Applicant was imprisoned for reasons of his political opinion was incorrectly applied by the RRT and that incorrect reasoning process has been upheld by the court below;

• The RRT erred in applying an incorrect test of what constituted persecution, and that approach was upheld by the court below;

• The RRT failed to set out findings on material questions of fact and failed to set out reasons for the decision, in the sense that no reasons were given for ignoring certain material facts, as it was required to do, which approach was upheld by the court below; and

• The court below erred in finding that there was no actual bias by the Judge at first instance.

In relation to S78/2001

On 20 April 2001 the Applicant also filed a draft order nisi, seeking writs of Certiorari, Prohibition and Mandamus against both the RRT and the Minister for Immigration and Multicultural Affairs. That application seeks to challenge the RRT's decision on the basis that it involved an exercise of power so unreasonable or illogical that it is said to have been made in excess of jurisdiction. The Applicant is also challenging the RRT's failure to consider that his jailing for civil contempt was a result of his political opinion, not simply because he had refused to answer questions in Judge Dean's Court.

 

CONWAY v. THE QUEEN (C11/2001)

Court Appealed from: Full Court of the Federal Court of Australia

Date of Judgment: 11 April 2000

Date special leave granted: 1 June 2001

The appellant was charged with murdering his wife on 3 May 1997. It was the Crown case that the appellant and co-accused (with whom the appellant was having a relationship), acting in pre-concert, persuaded the Crown witnesses Williams and Steer to inject the deceased with a lethal dose of heroin.

Those witnesses, Steer and Williams confessed to having carried out the murder of the deceased and that they had done so at the request of Conway and his co-accused. Part of the Crown case related to evidence of what became known as "the coffee incident" in which the deceased complained to a number of people that, one morning, the appellant had attempted to and had admitted to her that he had put something in her coffee. At trial, the Crown contended that the inference to be drawn from this evidence was that the substance was heroin. The Crown contended that it was a preparatory act to murder the deceased.

The appellant argued that the evidence of the "coffee incident" should have been excluded because it was propensity or similar fact evidence and that the evidence of a neighbour of the deceased and other persons to whom the deceased had spoken about the coffee incident was hearsay and should not have been admitted. He also contended that the deceased's version of the coffee incident as set out in her diary entry was hearsay and should not have been admitted.

Tapes were tendered by the Crown to show the nature of the relationship between the co-accused and the deceased, the co-accused and the appellant and also to show that the co-accused and the appellant in their dealing with the deceased had acted in tandem in a way that would cause her harm in certain custody proceedings. The Crown case also relied heavily on the evidence of the accomplices Steer and Williams.

The appeal to the Full Court of the Federal Court was dismissed.

The grounds of appeal are:

• Having determined that the learned Trial Judge at first instance was obligated to direct the jury to consider corroborative evidence 'separately in the case of each accused', the Full Court erred in ruling that there was no reason in principle why evidence not otherwise corroborative in the case of the appellant but admissible under the 'co-conspirator rules', could not also be capable of constituting corroboration of the accomplice's evidence in his case; and

•  The Full Court erred in concluding that the items of evidence wrongly left to the jury as corroborative of the case against the appellant did not lead to a miscarriage of justice.

BURKE & ANOR v. LFOT PTY LIMITED & ORS (S130/2001)

Court appealed from: Full Court of the Federal Court of Australia

Date of Judgment: 18 August 2000

Date of grant of special leave: 1 June 2001

In July 1994 contracts were exchanged for the sale of a property consisting of seven tenanted shops at Leichhardt. The vendor was the first respondent ("LFOT"). Two of its directors were the second respondent ("Mr Tressider") and the third respondent ("Mr Glew"). The purchaser was the second appellant ("Hanave"). The first appellant ("Mr Burke") was a director of Hanave and acted as its solicitor. A major tenant of the property was Barbara's Storehouse which occupied two of the shops and contributed about a third of the total rental income.

Barbara's Storehouse was in default of prompt rental payments from an early stage. In September 1995 Hanave commenced proceedings in the Federal Court against LFOT and Messrs Tressider and Glew. Hanave alleged breaches of s52 of the Trade Practices Act 1974 (Cth) ("TPA"), namely misrepresentations concerning the quality of Barbara's Storehouse as a tenant. The respondents cross-claimed against Mr Burke alleging that, as solicitor for Hanave, he negligently failed to advise Hanave to make proper inquiries as to the financial position of tenants.

The primary judge, Moore J, dismissed Hanave's application. Hanave appealed to the Full Court. The appeal was allowed. LFOT and Mr Tressider and Mr Glew sought special leave to appeal to the High Court. This was refused on 10 December 1999.

On 11 November 1999 Moore J delivered a further judgment holding, inter alia, that Mr Burke had been negligent and was liable in equity to make contribution. His Honour assessed damages in the sum of $750,000 and ordered that LFOT and Mr Tressider pay that amount to Hanave and that, upon satisfaction of that order, Mr Burke make contribution to LFOT and Mr Tressider of half that amount.

Mr Burke and Hanave appealed to the Full Court against the order that Mr Burke make contribution to LFOT and Mr Tressider. The Full Court held – Lee J dissenting – that LFOT and Mr Tressider were entitled to contribution at law. The majority considered the principles and reasoning set out in Albion Insurance Company Ltd v. Government Insurance Office of New South Wales (1969) 121 CLR 342 to be applicable to the case and that contribution was available where two or more persons who were each liable in respect of the same debt ought to make good the same loss sustained by a third party in circumstances where discharge of the obligation by one relieved the other.

The appellants are not seeking any orders against Mr Glew.

The grounds of appeal are:

• The Full Federal Court (Lee J dissenting) was in error in holding that the general law of contribution applied to permit recovery of contribution from the first appellant by the first respondent and the second respondent arising out of a judgment that the second respondent had contravened s52 of the TPA and the first respondent was a person involved in the contravention pursuant to s75B;

• The court was in error in holding that the first appellant who was found to have been negligent and in breach of his retainer as a solicitor to his client was under a common liability to the client with the first and second respondents who had contravened s52 of the TPA such as to give rise to a right of contribution in the first and second respondents as against the first appellant;

• The court was in error in not finding that the contribution to apply between persons who have concurrent liabilities to a third party there must be a common liability arising out of a common design to achieve a common end;

• The court should have found that the conduct of the respondents being proscribed by s52 of the TPA would entitle the first appellant to an indemnity from the first and second respondents and thus was a bar to making any order for contribution;

• The court should have found that as the first and second respondents intended to mislead the second appellant through the first appellant that the respective liabilities of the first appellant and the first and second respondents were not in respect of a common obligation and that there was no equality between them such as to give rise to a contribution; and

• If the first appellant was liable to make contribution to the first and second respondents the court erred in not apportioning the liability as to one-third to the first appellant and a further third to each of the first and second respondents.

BIENSTEIN v. BIENSTEIN (M140/2000)

Court appealed from: Single Justice, High Court of Australia

Date of judgment: 1 December 2000

The parties were husband and wife. There were various proceedings in the Family Court of Australia including a claim for maintenance in respect of an adult child of the marriage.

The wife filed an application for removal of proceedings pending in the Family Court, pursuant to s40 of the Judiciary Act 1903 (Cth). That application for removal (M133/00) came before Justice Hayne on 1 December 2001. The wife appeared in person. The husband did not appear to make any submissions. Justice Hayne refused the application for removal.

The wife filed a notice of appeal pursuant to s34(1) of the Judiciary Act 1903 (Cth), contending that s34(2) of the Judiciary Act was not applicable and that leave to appeal is not required.

The grounds set out in that notice of appeal include:

• Hayne J failed to properly consider the mind of the fair-minded lay observer who, regardless of His Honour's own views, might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide; and

• Hayne J's reasons for refusing to disqualify himself are insufficient.

IN THE MATTER OF AN APPLICATION BY HELEN BIENSTEIN FOR LEAVE TO ISSUE PROCESS (C4/2001)

Mrs Bienstein sought to issue a writ of summons, naming the Prime Minister as defendant. On 22 February 2001, Justice Gaudron directed, pursuant to order 58 rule 4(3) of the High Court Rules, that the Registrar not issue the writ without the leave of a Justice first had and obtained.

Order 58 rule 4(3) of the High Court Rules provides as follows:

"If the writ, process or commission appears to a Registrar on its face to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the Registrar shall seek the direction of a Justice who may direct him to issue it or to refuse to issue it without the leave of a Justice first had and obtained by the party seeking to issue it."

Mrs Bienstein did not make application in the usual way to seek leave to issue the proceeding, but filed a notice of appeal from the direction of Justice Gaudron, contending that she was entitled to do so pursuant to s34(1) of the Judiciary Act 1903 (Cth).

The grounds as set out in her notice of appeal include:

Gaudron J's direction has the effect finally, summarily, without hearing and without published reason of denying my substantive Common Law Right to equal access to Justice, free of any "special" conditions or obstacles;

There is no source of legal power to support the relevant Rule, and there is no authority identifying any such power; and

The Rule is unnecessary because of the existence of more equitable means for dealing with actions that are alleged to be vexatious, frivolous or an abuse of process.

 

 

MUIN (AS THE REPRESENTATIVE OF THE PERSONS LISTED IN THE SCHEDULE) v. REFUGEE REVIEW TRIBUNAL & ORS (S36/1999)

LIE (AS THE REPRESENTATIVE OF THE PERSONS LISTED IN THE SCHEDULE) v. REFUGEE REVIEW TRIBUNAL & ORS (S89/1999)

Questions Referred: 3 November 2000 by Gaudron J

These proceedings relate to things done and decisions made during the course of the defendants' determination of the refugee status of the plaintiffs, Muin and Lie, with a view to the grant of, or refusal to grant, a protection visa under the Migration Act 1958 (Cth) ("the Act"). The issues raised depend upon the operation of the provisions of the Act in force at the date of the decision of the first defendant in relation to each of the plaintiffs, namely 25 November 1998 and 6 January 1998 respectively. The Act was relevantly identical at each date.

In relation to S36/1999

On about 8 June 1996 Muin arrived in Australia. He is an Indonesian national of Chinese ethnicity. On 26 August 1996 Muin applied for a protection visa within the class of visas identified by s36 of the Act. On 9 March 1998 a delegate of the Minister for Immigration and Multicultural Affairs, after considering the application for a visa, was not satisfied that Muin was a person to whom Australia owed protection obligations under the Convention Relating to the Status of Refugees as Amended by the Protocol Relating to Refugees done at New York on 31 January 1967 and accordingly refused to grant the visa.

On 26 March 1998 Muin made an application for review of the delegate's decision to the Refugee Review Tribunal ("the Tribunal"). On 1 October 1998 the Principal Member of the Tribunal gave a written direction about who was to constitute the Tribunal for the purpose of the review sought by Muin in accordance with s421(2) of the Act. On 13 October 1998 a review on the papers was completed by the Tribunal member purportedly pursuant to s424(1) of the Act. A letter was written to Muin dated 13 October 1998 advising him that the Tribunal was not prepared to make the decision most favourable to him on the review on the papers. On 18 November 1998 Muin attended a hearing before the Tribunal. On 25 November 1998 the Tribunal decided to affirm the decision of the delegate of the Minister refusing to grant a protection visa.

On 22 March 1999 proceedings were brought in this Court under s75(v) of the Constitution. Muin contends that the Tribunal member took into account material adverse to his case without his knowledge. This deprived him of an opportunity to counter that adverse material by evidence and submissions. This failure to give Muin an opportunity to answer the adverse material was a breach of procedural fairness.

Secondly, Muin argues that the Tribunal member failed to receive or consider relevant material that contained information favourable to his case. Had the Tribunal member properly received and considered this information, Muin would have had better prospects of obtaining a favourable decision. The said failure of the Tribunal member to receive and consider the documents known as the Part B country material was a breach of procedural fairness. This failure to consider relevant material was also a breach of ss418(3) and 424(1) of the Act, making the decision procedurally ultra vires, or, at least, unlawful.

In relation to S89/1999

Lie arrived in Australia on or about 3 January 1997. She is an Indonesian national of Chinese ethnicity. She commenced proceedings in the Court on 10 June 1999. The issues raised are the same as those in Muin, except that there is no allegation that material adverse to the interests of the plaintiff was taken into account without her being given an opportunity to respond to it.

The questions referred in each matter are:

• Upon the facts set out in the agreed statement of facts and the inferences, if any, to be drawn from those facts, the following questions are reserved for the consideration of the Full Court.

1. Was there a failure to accord the Plaintiff procedural fairness?

2. Was there a failure to comply with s418 (3) of the Act?

3. Was there a failure to comply with s424 (1) of the Act?

4. If the answer to any of questions 1 to 3 is yes,

(a) Was the decision of the First Defendant to affirm the refusal of the delegate to grant a protection visa for that reason invalid?

(b) What declaratory, injunctive or prerogative writ relief, if any, should be ordered?

5. By whom should the costs of the proceedings in this Court be borne?

 

 

LUTON v. LESSELS & ANOR (C40/1995)

Date case stated: 14 March 2001

On 14 March 2001, Justice Callinan stated a case pursuant to s18 of the Judiciary Act 1903 (Cth).

On or about 1 November 1991 Luton and Lessels began to cohabit as if they were husband and wife. This ceased on 1 August 1992. On 15 February 1993 a child was born of the relationship between the two. On 9 July 1993 Lessels applied to the second respondent for assessment of and registration of a Child Support Arrangement under the Child Support (Registration and Collection) Act 1988 (Cth) ("the Registration Act"). On 7 August 1993 the Registrar made an assessment of the liability of Luton to pay child support. The Registrar registered the registrable maintenance liability which arose under that assessment pursuant to s24A of the Registration Act.

On or about 18 October 1994, pursuant to s75 of the Child Support (Assessment) Act 1988 (Cth) ("the Assessment Act"), the Registrar amended the assessment so as to vary the commencement date of the period in respect of which child support was payable by Luton from 12 June 1993 to 9 July 1993. The Registrar made corresponding variations entered into the Child Support Register.

On 10 December 1993, Lessels made an application under s98B of the Assessment Act so as to increase the rate of child support payable on the ground that the income, earning capacity, property and financial resources of Luton were not properly reflected in the assessment. On 3 February 1994, pursuant to s98G of the Assessment Act, Luton lodged with the Registrar a reply to Lessels' application, and by application under s98B sought a reduction in the rate of child support payable on a number of the grounds set out in s117 of the Assessment Act.

On 14 April 1994, a Child Support Review Officer (a delegate of the Registrar), made an assessment pursuant to s98D of the Assessment Act in the following terms:

"There should be a departure from the child support assessment made for the 1993/1994 child support year. For the period 1 January 1994 to 30 June 1994 the child support income of Mr Luton should be $37,188. For the period 1 July 1994 to 30 June 1995 the child support income of Mr Luton should be $38,489."

On 28 April 1994, the Registrar entered the particulars of this assessment on the Child Support Register, pursuant to s37A of the Registration Act. In relation to the subsequent child support years, pursuant to s31(2)(b) of the Assessment Act, the Registrar has assessed the annual rate of child support payable by Luton.

The Registrar has enforced collection of the amounts payable under the various assessments by means of: issuing notices to Luton's employers to make deductions from Luton's salary (under s46 of the Registration Act), pursuant to s72 of the Registration Act, applying an amount owing to Luton by the Commonwealth under the Income Tax Assessment Act 1936 (Cth) against the amount of the debt due to the Commonwealth by Luton under the Registration Act. Luton's employers have made periodic deductions from his salary pursuant to s46 of the Registration Act and have paid the amounts deducted to the Registrar in compliance with s47 of that Act.

The questions stated for the consideration of the Full Court are:

1. Is the scheme established by the Child Support (Registration and Collection) Act 1988 (Cth) and the Child Support (Assessment) Act 1988 (Cth) for the collection and payment by the respondent of money otherwise payable to or receivable by the plaintiff a tax?

2. If "yes" to question 1 are the Acts invalid as being contrary to s55 of the Constitution?

3. Do the Acts in purporting to authorise the second respondent to make the assessments and the determinations, to enter the particulars, to issue the notices, and to collect and apply payments in the way in which the second respondent did involve the purported exercise of judicial power by the second respondent contrary to Ch III of the Constitution?

4. What orders for the further disposition of the action should be made in the light of the answers to these questions.

* * * * * * * * *

SHORT PARTICULARS OF CASES

PERTH CIRCUIT SITTINGS

COMMENCING MONDAY, 22 OCTOBER 2001

APPEALS

 

WOODS v. MULTI-SPORT HOLDINGS PTY LTD (P93/2000)

Court Appealed from: Full Court of the Supreme Court of Western Australia

Date of Judgment: 1 March 2000

Date of grant of Special Leave: 27 October 2000

This appeal results from an injury sustained by the appellant on 12 March 1996 when he was playing indoor cricket. The appellant was batting and hit a ball which in some fashion ricocheted off his bat and struck him in the right eye and, as a result, was almost totally blinded in that eye. The appellant brought an action for damages against the respondent seeking damages for negligence, breach of contract and breach of statutory duty under the Occupiers Liability Act. The appellant argued before the Full Court that the learned trial judge erred in holding that the respondent did not breach its duty of care to the appellant by failing to provide helmets to protect players from the risk of serious eye injury. He also complained of a failure to warn of the risk of serious eye injury arising out of the playing of indoor cricket. The trial judge had found that such a warning was not required because there was no evidence that the respondent knew of the danger of eye injury.

The Full Court found no error in the trial judge's approach to the resolution of the issues of fact and upheld her finding that there was no breach of either a common law duty or a statutory duty and there was no obligation reasonably to be imposed to provide a protective helmet or to warn the appellant of the risk of eye injury.

The grounds of appeal include:

 

• When considering whether the rise of serious eye injury was obvious to the Appellant, the Full Court ought to have considered whether the Appellant had a full appreciation of not only the nature of the risk, but also the extent of the risk. In this instance the Full Court only directed it's attention to the Appellant's appreciation of the nature of the risk;

• Having accepted that the Appellant was a contractual entrant, the Full Court should have had regard to this fact when determining whether it was reasonable for the Respondent to warn the Appellant of the risk of serious eye injury;

• The Full Court ought to have found that the scope of the duty of care owed by the Respondent to the Appellant extended to the provision of helmets to protect the players from serious eye injury; and

• The Full Court erred in finding that the rules of Indoor Cricket modified and/or restricted the duty of care owed by the Respondent.

MOLTONI CORPORATION PTY LTD v. QBE INSURANCE LTD (P92/2000)

Court Appealed from: Full Court of the Supreme Court of Western Australia

Date of Judgment: 3 April 2000

Date of grant of Special Leave: 27 October 2000

On 7 May 1999, Mr Symons obtained a judgment against the appellant (then defendant) for over $300,000 for damages in respect of a back injury sustained by him on 7 November 1992 whilst he was employed by the appellant as a demolition worker at the Sheraton Hotel Perth.

At the hearing of the original action the appellant claimed a declaration that the respondent (then the third party), was required to indemnify it under a policy of insurance. The respondent denied liability primarily on grounds that the appellant had not given notice of Mr Symons' injury to it until 6 April 1994, approximately 17 months after the injury. The respondent claimed that, due to the late notice, it had suffered prejudice because it had been unable to carry out any investigation of the matter or arrange for the treatment of Mr Symons' injury before 6 April 1994.

At trial, the respondent was found liable to indemnify the appellant for the full amount of the judgment obtained by Mr Symons and costs. It was common ground that, but for s54(1) of the Insurance Contracts Act 1984 (Cth), the respondent would have been entitled to refuse to indemnify the appellant for breach of the term of the policy requiring notice of an accident to be given as soon as practicable. The respondent appealed to the Full Court who, by a majority (Murray J dissenting), allowed the appeal.

The grounds of appeal are:

• The Full Court erred in law in that when determining whether for the purposes of s.54 of the Insurance Contacts Act 1984 (Cth) the respondent insurer's interests were prejudiced by the appellant's breach of the notice of injury term of the insurance contract it should have held that:

• a 'lost opportunity' to take action in response to notice of any injury (to effect medical and rehabilitation reviews of the plaintiff) was not prejudice, or the breach did not cause prejudice, if the respondent failed to prove on the balance of probabilities that it would have taken that action and that it was insufficient that as a probability or possibility the respondent might have taken that action;

• the finding of the trial judge that the plaintiff's ongoing incapacity was caused by his injury on 7 November 1992 and not by an incident in 1993 was a proven fact that was required to be (and had been) decided on the balance of probabilities, rather than a probability or possibility to be taken into account in assessing the value of a 'lost opportunity'.

• The Full Court erred in law in that it should have held that the Respondent was precluded from challenging on appeal the findings of fact concerning the cause and course of the plaintiff's incapacity because the findings were made in the action between the plaintiff and the appellant, the challenge relied on evidence called by the respondent in the action, and the respondent had not made the plaintiff a party to the appeal and had not appealed against findings in his favour;

• The Full Court erred in law in that it should have held that the trial judge had given sufficient reasons for preferring the evidence of the plaintiff's medical witnesses to those called by the respondent in the plaintiff's action.

The respondent seeks special leave to cross-appeal in relation to the appellant's first ground of appeal and also from that part of the judgment of the Full Court which held that the subject contract of insurance was not one contemplated by s.9(1)(e) of the Insurance Contracts Act 1984 (Cth).

 

GOLDSMITH v SANDILANDS & ORS (P91/2000)

Court Appealed from: Full Court of the Supreme Court of Western Australia

Date of Judgment: 17 February 2000

Date of grant of Special Leave: 27 October 2000

The appellant was the plaintiff in proceedings in the District Court of Western Australia. He claimed that, while serving as a police officer, he sustained injuries whilst involved in a high speed police pursuit. There was no collision, it being alleged that the appellant was thrown around as the front seat passenger in the police vehicle. The first respondent was the driver of the pursuit vehicle and the fourth respondent was sued as the insurer of the unidentified driver of the vehicle being pursued.

At trial, the respondents raised a number of defences including that the appellant had not suffered injury during the pursuit, that the appellant had sustained the injuries days before playing indoor cricket, and that his injuries were attributable to a motor vehicle accident in April of 1995. The Commissioner in the District Court dismissed the appellant's claim and made findings adverse to his credibility and held that the appellant had injured himself playing indoor cricket. The Commissioner based his findings that the appellant had injured himself playing indoor cricket on the first respondent's evidence that the appellant told him that he had injured himself at indoor cricket when the first respondent collected him from cricket, that two fellow police officers gave evidence to say that the appellant had told them separately he had injured himself playing indoor cricket and the evidence of Dr Silver who concluded that the appellant's injuries were more likely to be the result of playing indoor cricket than the police pursuit.

During the adjournment and after the appellant had closed his case, it became apparent to the appellant that the description of the location of the street where the first respondent alleged collecting the appellant from indoor cricket did not match the actual location of the arena. During the adjournment the appellant visited the two locations and took photos which counsel for the appellant unsuccessfully sought to put to the first respondent in cross-examination.

On appeal to the Full Court of the Supreme Court of Western Australia the Court found that the Commissioner had erred in refusing to exercise his discretion to allow the appellant to call evidence in respect of these matters and that the Commissioner had erred in refusing to allow evidence of a physiotherapist to be called to exclude any suggestion that the accident of April 1995 was relevant. Although the Full Court found a number of the bases upon which the Commissioner had relied to make the findings of credibility adverse to the appellant were not open to him, it upheld the majority of the bases for assessing the appellant's credibility. The Full Court also held that there was other evidence upon which it was open to the Commissioner to find that the appellant had injured himself whilst playing indoor cricket.

The grounds of appeal include:

• Having found the Commissioner erred in:

• Failing to allow the Appellant to admit evidence in rebuttal or to reopen his case in respect of the location of Strikers Belmont;

• Failing to allow the Appellant to call the evidence of his physiotherapist in respect of the accident on 10 April 1995;

• 8 of the 16 points relied upon by the Commissioner in supporting his findings of credibility adverse to the Appellant were either partially or wholly not open to the learned Commissioner;

• The Full Court of the Supreme Court of Western Australia erred in concluding the Appellant had not suffered an injustice and that there was sufficient foundation for the Commissioner's decision.

• Having regard to the evidence overall the Full Court of Western Australia erred in failing to conclude an injustice had occurred and that sufficient doubt existed as to the appropriateness of the Commissioner's findings.