LUTWYCHE v JIWENI PTY LTD [1998] NSWCA 131

LUTWYCHE v JIWENI PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, SHELLER and BEAZLEY JJA 27 May 1998, 30 July 1998

[1998] NSWCA 131

Practice and Procedure — Jury trial — Jones v Dunkel direction — Misdirection to jury — Failure to object to direction — Importance of misdirection to an issue in the case — whether new trial should be ordered.

Negligence — Occupiers liability — Employer — Breach of statutory duty — Factories Shops and Industries Act 1962 (NSW) s34.

On 23 December 1983 the appellant fell through a trap door while working at the Burton Hotel, St Johns Road, Glebe. She sued the respondent, Jiweni Pty Ltd (Jiweni), on the basis that it was both her employer and the occupier of the premises, for negligence and for a breach of statutory duty pursuant to s34 of the Factories Shops and Industries Act 1962.

Jiweni conceded that whoever was the employer was negligent. Therefore, the primary issue before the jury was who was the occupier of the premises, the employer of the appellant or both at the time of the accident. The answer was unclear because although Jiweni had sold the business prior to the accident, there was evidence to suggest Jiweni was still running the business.

The appeal was concerned with what were said to be misdirections made by the trial Judge to the jury and the application of the principle of Jones v Dunkel (1959) 101 CLR 298.

Held:

1. The trial Judge misdirected the jury in relation to the evidence given by Jiweni's accountant: Jones v Dunkel (1959) 101 CLR 298, Payne v Parker (1976) 1 NSWLR 191.

2. The importance of the misdirection to an issue in the case means that a proper balancing of the interests of justice requires that there be a new trial.

3. The Court should have evidence put before it that provides such explanation as is required for the failure, at the proper time and in the proper form, an objection upon which it is sought to rely on the hearing of the appeal: cf R v Hines (1991) 24 NSWLR 737. If the cause of the failure is uncontentious, a statement in the appellant's submissions will suffice. If there is disagreement, an affidavit should be filed in sufficient time to allow the respondent to determine whether cross examination or a responsive affidavit is required.

Sheller JA dissenting:

1. The failure of a party to seek a direction at trial is not necessarily fatal to an application for a new trial but it is a most material matter to be taken into account: Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33.

2. There was no ground for the view that Jiweni's accountant would be expected to be called by the appellant rather than Jiweni. Therefore, no direction based on Jones v Dunkel should have been made by the trial Judge: Jones v Dunkel, Payne v Parker (1976) | NSWLR 191.

3. Although the misdirection as to the effect of the accountant not being called to give evidence for the appellant was significant, justice does not demand that there should be a new trial.

Authorities:

Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 Commonwealth v MacLean (unreported) NSW Court of Appeal, 31 December

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Jones v Dunkel (1959) 101 CLR 298

Payne v Parker [1976] 1 NSWLR 191

R v Hines (1991) 24 NSWLR 737

Singleton v Ffrench (1986) 5 NSWLR 425

The Insurance Commissioner v Joyce (1948) 77 CLR 39

Mason P and Beazley JA We have had the advantage of reading in draft the judgment of Sheller JA. We agree with his Honour that the trial judge misdirected the jury in relation to the witness Pears: see Jones v Dunkel (1959) 101 CLR 298; Payne v Parker [1976] 1 NSWLR 191.

However, we cannot agree that a new trial should not be ordered. We do not doubt the high obligation on counsel in conducting a trial to ensure that all appropriate and correct directions are given to the jury. But the fact is, oversights and mistakes do occur. The trial judge has an important role to play in ensuring that trials do not miscarry because or if that occurs. The application of the principle in Jones v Dunkel is a question of law (Payne v Parker per Glass JA at 200) and in a jury trial questions of law are peculiarly within the province of the trial judge. Jones v Dunkel is a well entrenched principle in our trial system.

In this case there was a misdirection in relation to Jones v Dunkel in respect of a matter which was central to the fundamental issue in the trial.

In our opinion, given the centrality of the misdirection to the issue in the case a proper balancing of the interests of justice require that there be a new trial.

The other matter of which complaint is made is the trial judge's failure to direct the jury in respect of a part of the appellant's case, namely, that the respondent could also be liable as the occupier of the premises, independently of its liability as an employer.

Subject to there being any miscarriage, a new trial would usually be ordered if such a complaint was made out: see Commonwealth v McLean (unreported, New South Wales Court of Appeal, 31 December 1996). The matter here is complicated by the manner in which counsel for the appellant at trial conducted the trial. Before his Honour commenced the summing up, he sought to clarify the appellant's case. The following exchange occurred:

"His Honour: I need to get an understanding, Mr Murphy, of the issues that are going to go to the jury. In your opening on Tuesday you opened on employer/employee and not otherwise. Is that how you cast your case?

Murphy: That is, your Honour.

His Honour: Is your case that if you fail to satisfy them on the balance of probabilities that the defendant employed the plaintiff, then the plaintiff fails?

Murphy: Your Honour, that is my case. There is no evidence that I am aware of that anyone apart from the employer was the occupier of the premises and if we fail to establish that Jiweni was the employer, we would fail to establish that Jiweni was the occupier."

However, in his address to the jury, counsel for the appellant apparently sought to draw a sharper distinction between the liability of the respondent in each capacity.

The trial judge dealt with this issue in his summing up as follows:

"Mr Murphy put an alternative submission to you. I really think that he was trying to close every last gate. He was trying to cover the possibility, and it may only be a theoretical one, that you might find that the defendant was not the employer but was still the occupier. I think he put to you something about the possibility that Mr Morrison and Mr Bamford might have gone in, anticipating

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the agreement before it was made, and became the employer, and in that case he said he would wish to rely on the responsibilities of the defendant as occupier.

Well, it seems to me to be quite an unlikely proposition - that is all a matter for you of course - but it seems to me that the evidence that either shows that Jiweni was the employer or shows that it wasn't, also shows that it was the occupier or was not. These three concepts seem to go together. The concept of being the owner and the operator of a business, the concept of being the occupier of the hotel - because that is what the business did - and the concept of being employer; they seem to go together, and either Jiweni was the occupier and the owner of the business and the employer, or it was not.

They are the only reasonable possibilities, it seems to me, and I would not trouble yourselves about the question of the law of whoever was the occupier of the business at the time. Just as has been said in relation to whoever was the employer, it seems to me that it is a very strong case that whoever was the occupier also failed in the duty as employer.

For these reasons generally, unless you wish me to do so, I do not propose to go into the question of breach of statutory duty. This is not what this case is about, members of the jury."

Senior counsel for the appellant submitted that this was a misdirection, as an occupier may be liable even if it was not an employer. This is correct. It is not, however, the way the appellant put her case to the trial judge in the exchange which is set out above. If that is how the appellant intended to conduct that aspect of the case (and such a case was open to her) there was no misdirection.

It seems to us, however, that the appellant's counsel shifted ground on this issue at various times during the trial. It is not clear why he did so. It could have been because of his failure to fully understand the issue or the significance of the issue. But we do not know and we should not speculate. We have already concluded that the appellant is entitled to a new trial, notwithstanding what might have been incompetence. We stress, however, that it is not every occasion of incompetence that prompts an appellate court to provide relief. Had this issue stood on its own, we may not have granted a new trial.

It should become part of the practice of the Court of Appeal that the appellant provides a clear statement on the matter. If it is uncontentious (and the onus is on the appellant to determine this by early enquiry), a statement in the appellant's submissions will suffice. But if there is disagreement, an affidavit should be filed in sufficient time in advance of the hearing date for a decision to be made by the respondent as to whether cross-examination or a responsive affidavit is called for. The time should be sufficient for any necessary change of counsel to take place without displacement of the fixed hearing date. The statement or evidence should put before the court such explanation as it might be desired to advance for the failure to take, at the proper time and in the proper form, an objection upon which it is sought to rely on the hearing of the appeal: cf R v Hines (1991) 24 NSWLR 737.

Accordingly, we would allow the appeal, set aside the verdict and order a new trial. The respondent should pay the costs of the appeal, but should have, if qualified, a certificate under the Suitor's Fund Act 1951 (NSW).

No particular argument was put in relation to the costs of the trial. Without ruling on it, we would indicate that the cost of the trial before Barr J should abide the result of the new trial.

Sheller JA

Introduction

constituted a factory within the meaning of the Factories Shops and Industries Act 1962 and that she was employed by Jiweni to work as a bar attendant at the premises. The appellant alleged that her fall was caused by a breach of statutory

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duty pursuant to s34(c) of the Act and by Jiweni's negligence. She claimed to have suffered severe injuries and consequential disabilities.

JIWENI - EMPLOYER OF OCCUPIER

For present purposes it can be accepted that for a period from early 1979 until the end of October 1983 Jiweni ran the business of the Burton Hotel on the premises and employed Francis John Morrison as the manager. Mr Morrison held the publican's licence. From 4 November 1982 to 30 October 1983 Jiweni, trading as "Burton Hotel", was covered under a workers compensation policy with FAI Insurances Ltd. As from 1 November 1983, there was evidence at the trial that Mr R J Bamford and Mr Morrison, having purchased the business of the Burton Hotel from Jiweni, conducted it on the premises. Notwithstanding this, on 1 November 1983 Jiweni, described itself as trading as "Burton Hotel", when lodging a wage certificate and renewal declaration through its accountants, Gibson Pears & Co, on behalf of the Burton Hotel.

Some of the subsequent correspondence in evidence from or to Mr Pears implied that Jiweni had transferred its interest in the hotel to Messrs Morrison and Bamford (see letter of 8 November 1983 from Mr Pears to the Manager of the Commonwealth Trading Bank of Australia and letter of 8 December 1983 from Mr Pears to the Deputy Commissioner of Taxation). On the other hand, a letter from Paul A Brown & Co, solicitors, to Messrs Gibson Pears & Co of 10 May 1984 could be read as suggesting otherwise. Of particular significance was the fact, conceded by Jiweni in its defence, that it had made payments to the appellant by way of compensation under the Workers Compensation Act.

TRIAL

Unfortunately, the case did not come to trial until February 1996 when it was heard by Barr J and a jury. Jiweni conceded that whoever was the employer was negligent. Accordingly, the issue before the jury on liability was whether Jiweni was at the time of the accident the occupier of the premises or the employer of the appellant or both. The jury returned a verdict for Jiweni.

APPEAL

The appellant appeals. The grounds as amended by leave of the Court were directed to what were said to be misdirections first, about whether Jiweni was the appellant's employer or occupier of the premises on which she was injured and, secondly, about the application of the principle stated in Jones v Dunkel (1959) 101 CLR 298. Caught up with this second ground was an argument that a direction should have been given in accordance with the dictum of Rich J in The Insurance Commissioner v Joyce (1948) 77 CLR 39 at 49 that "when circumstances are proved indicating a conclusion and the only party who can give direct evidence of the matter prefers the well of the court to the witness box a court is entitled to be bold."

THE SUMMING UP

In summing up, the trial Judge placed before the jury all the material to be taken into, account in determining whether the business had been transferred by Jiweni to Messrs Bamford and Morrison before the date of the appellant's injury.

The following parts of the summing up which began on 13 February 1996 explain the points in issue on this appeal. His Honour said:

"The defendant denies that it was her employer. It says that it relinquished any interest it had in the business on 1 November 1983. The plaintiff rejoins by submitting to you that that may very well have been the day of reckoning for

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business purposes, but the actual deal between Jiweni Pty Ltd on the one hand and Mr Morrison and Mr Bamford on the other hand was not reached, if it was reached at all, until much later, a day which cannot be precisely determined but which was after the day on which the plaintiff fell through the trapdoor and received her injuries.

There is evidence both ways about this, and I will gather it together for you now. This is not the only issue raised in this trial but it is a fundamental one, and the plaintiff must satisfy you that it is more probable than not that Jiweni Pty Ltd was her employer on 23 December 1983. If she does not satisfy you about that then you must return a verdict for the defendant, and your enquiries will go no further.

On the other hand, if you answer that question in favour of the plaintiff, you will go on and consider the other matters about which I will direct you in due course."

This accords with the statement made by Mr Murphy, counsel for the appellant, on the third day of the trial, in answer to the Judge's comment that he needed to get an understanding of the issues that are going to go to the jury.

"HIS HONOUR: In your opening on Tuesday you opened on employer/employee and not otherwise. Is that how you cast your case?

MURPHY: That is, your Honour.

HIS HONOUR: Is your case that if you fail to satisfy them on the balance of probabilities that the defendant employed the plaintiff, then the plaintiff fails?

MURPHY: Your Honour, that is my case. There is no evidence that I am aware of that anyone apart from the employer was the occupier of the premises and if we fail to establish that Jiweni was the employer, we would fail to establish that Jiweni was the occupier."

After going through the evidence about whether Jiweni was the appellant's employer the trial Judge said:

"That seems to be all the evidence bearing on the question whether the defendant employed the plaintiff on 23 December 1983. If I have not referred to any of the evidence upon which Mr Murphy or Mr Williams have placed some reliance, please remember this: it is not for me to say what evidence is important; it is for you.

I have spent a lot of time on this - I trust more than half my summing up - because I think it is fairly clear to you that this is the fundamental issue between the parties. Unless the plaintiff satisfies you on the balance of probabilities that things are as she contends, then that will be the end of your inquiry and you will find a verdict for the defendant and matters will not go further.

Well, I had better cover the questions of negligence and occupier that have been put to you. I am bound to do that but may I say at the outset that in a very realistic way, Mr Williams has not suggested to you that whoever was the employer was not negligent.

That is not the basis on which this case has been fought. It is still a matter for you of course, it is not for me to tell you that whoever her employer was, was negligent, but you naturally come to this question now if you am satisfied that it was the defendant who was the employer. I am bound to assume that you will come to that conclusion, because I have to cover what happens if you do.

That makes things very much easier. If you take the view that whoever was her employer, and it must be the defendant, did not take proper care of her by failing to point out to her that the trapdoor was there, by opening it while she was

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working there, putting her in danger, by failing to tell her that it was open so that she could take reasonable care of herself, by failing to guard it or fence it in any way - in any or all of those ways, if you take the view, and it seems to be a pretty obvious view to come to, that that was negligent, then that is negligence.

Mr Murphy put an alternative submission to you. I really think that he was trying to close every last gate. He was tying to cover the possibility, and it may only be a theoretical one, that you might find that the defendant was not the employer but was still the occupier. I think he put to you something about the possibility that Mr Morrison and Mr Bamford might have gone in, anticipating the agreement before it was made, and became the employer, and in that case he said he would wish to rely on the responsibilities of the defendant as occupier.

Well, it seems to me to be quite an unlikely proposition - that is all a matter for you of course - but it seems to me that the evidence that either shows that Jiweni was the employer or shows that it wasn't, also shows that it was the occupier or was not. These three concepts seems to go together. The concept of being the owner and the operator of a business, the concept of being the occupier of the hotel - because that is what the business did - and the concept of being employer; they seem to go together, and either Jiweni was the occupier and the owner of the business and the employer, or it was not.

They are the only reasonable possibilities, it seems to me, and I would not trouble yourselves about the question of the law of whoever was the occupier of the business at the time. Just as has been said in relation to whoever was the employer, it seems to me that it is a very very strong case that whoever was the occupier also failed in the duty as employer.

For these reasons generally, unless you wish me to do so, I do not propose to go into this question of breach of statutory duty. This is not what this case is about, members of the jury."

JONES vy DUNKEL

The trial Judge then summed up on damages and asked Mr Murphy if he wished any addition or change. Mr Murphy mentioned two matters in relation to damages. Mr Williams asked for no change to the charge. The jury was sent out at 3.53pm, was recalled after 4.05pm and then sent home.

When the trial resumed on Wednesday, 14 February 1996 after refusing to give a redirection asked for on behalf of Jiweni, his Honour said:

"Gentlemen, you both commented on the failure of each of your opponents to call witnesses. I did not give the Jones v Dunkel direction yesterday and you did not ask me to do so. I thought that the submissions were rather faintly made but what is the position? Am I required to give that direction?

WILLIAMS: Perhaps your Honour should, just as a matter of prudence?

HIS HONOUR: I do not know that I have my notes with me. Who were you commenting upon the plaintiff's failure to call, Mr Williams?

WILLLAMS: The plaintiff's solicitor.

HIS HONOUR: That was concerning the particulars?

WILLIAMS: The particulars.

HIS HONOUR: Somebody was commenting upon the failure to call the accountant.

WILLIAMS: Yes, I certainly said that and I think I said something to the effect that there could have been more evidence called about Doctor Singh, that is the reports only went up to 1987 and he had, on the plaintiff's evidence, been seeing her up to 1990 and there was no evidence of the plaintiff's failure to call more evidence than what was there.

URJ LUTWYCHE v JIWENI PTY LTD (Sheller JA) 7

HIS HONOUR: What did you comment on, Mr Murphy? You did make a comment, I think.

MURPHY: Your Honour, I commented on Mr Pears, on the directors of Jiweni, the books of Jiweni.

HIS HONOUR: So you were both commenting on the other's failure to call Mr Pears. Is that the position?

MURPHY: I think that is the position, your Honour."

The jury was recalled and in the course of some further directions his Honour said:

"Mr Williams also commented upon the failure of the plaintiff to call Mr Pears, the accountant. I am not going to go through the details of all these documents again but they are obviously quite important and Mr Pears was a man who was at the centre of things. He was doing the business of Jiweni, Morrison and Bamford. He was writing important letters and receiving and sending important other documents.

The defendant says to you the plaintiff ought to have called him and, as with the solicitor, has not explained why she has not called him to give evidence.

Mr Murphy made a comment in his closing address upon the failure of the defendant to call Mr Pears. So in respect at least to the evidence of Mr Pears, each side is saying to you the other side should have called Mr Pears.

Let me give you this direction: if it appears to you that a party ought to have called a witness, has not called that witness and has failed to bring evidence satisfactory to you to say why that witness has not been called, then you may draw the inference that the evidence of that witness would not have assisted that party's case. I say you may draw that inference. You do not have to draw that inference. It is a matter for you whether you draw the inference or not.

In giving you this direction, I am not saying to you that it is my view that the plaintiff ought to have called the witnesses the defendant comments about. I am not saying that it is my view that the defendant ought to have called the witness that the plaintiff comments on."

A little later Mr Murphy requested a direction be given in relation to the directors of Jiweni and the books of Jiweni. His Honour said:

"Mr Murphy also made that comment about the failure of the defendant to call directors of Jiweni who would have knowledge of its affairs at the relevant time.

The direction is the same. It is a matter for you, ladies and gentlemen."

The jury retired at 9.47am and returned with its verdict at 3.23pm.

NO OBJECTION TO MISDIRECTION

In Singleton v Ffrench (1986) 5 NSWLR 425, an appeal from a jury verdict in a defamation action, McHugh JA said at 440:

"Tf a party is to rely as a ground of appeal on a misdirection in a summing up, his counsel must specify at the trial that portion of the summing up which he requires to be withdrawn. If any further direction is needed, counsel must specify with precision what direction the trial Judge should give."

His Honour was of opinion in that case that no objection to the particular directions complained of was taken with sufficient precision to require the ordering of a new trial. On the other hand in Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 39 Mason CJ, Deane, Toohey and McHugh JJ referred to the then equivalent of PtS1 r23(1) of the Supreme Court

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Rules which provides that the Court of Appeal shall not order a new trial: (a) on the ground of misdirection, non-direction or other error of law; or (d) on any other ground, unless it appears to the Court of Appeal that some substantial wrong or miscarriage has been thereby occasioned.

Their Honours then said:

"according to the rule, as under the general law, there is no rigid principle of law or practice which precludes the making of an order for a new trial when a party fails to seek a direction or raise a point at the trial. The court's jurisdiction to order a new trial depends upon the demands of justice. But what is done or omitted to be done at the trial is an important consideration and will affect the exercise of the court's jurisdiction. In conformity with that principle, the Court of Appeal has taken the view that, in the application of the rule, while the failure to seek a direction is not necessarily fatal to an application for a new trial, it is a most material matter to be taken into consideration in the exercise of the court's jurisdiction.

It follows that the Court of Appeal had a discretion to grant a new trial if it appeared that a substantial wrong or miscarriage had been occasioned by the omission to take the jury's verdict on the issue arising from the respondent's contractual liability, notwithstanding the failure of counsel to seek a direction upon the point"

MISDIRECTION

In so far as the evidence disclosed it, namely the correspondence tendered on the appellant's behalf, at all relevant times Mr Pears was an accountant employed by Jiweni and Mr Bamford and Mr Morrison. In Jones v Dunkel a widow claimed on her own behalf and their children that her husband had been killed in consequence of the driving of one of the defendants named Hegedus. Hegedus did not give evidence. Kitto J at 308 remarked that the jury should not have been sent away to consider what inference could be drawn as to the place on the road where the collision occurred without proper guidance as to the relevance of the defendants' failure to put Hegedus into the witness box. Kitto J said:

"[the trial Judge] told the jury that the fact that Hegedus had not gone into the box left them in this position, that they could accept the facts given by the plaintiff as proved, and that the question for them then was whether they thought that from the proved facts an inference of negligence ought to be drawn. It was right enough to point out, in effect, that the evidence given might be the more readily accepted because it had been left uncontradicted, and that the omission to call Hegedus as a witness could not properly be treated as supplying any gap which the evidence adduced for the plaintiff left untouched. But what should have been added, and not being added was in the circumstances as good as denied, was that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. The jury should at least have been told that it would be proper for them to conclude that if Hegedus had gone into the witness box his evidence would not have assisted the defendants by throwing doubt on the correctness of the inference which, as I have explained, I consider was open on the plaintiff's evidence. In my opinion what his Honour said on the point amounted to a misdirection."

Hegedus was an employee of the other defendant, Dunkel.

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In Payne v Parker [1976] 1 NSWLR 191, the plaintiff, a widow suing a general practitioner for damages for financial loss due to the death of her husband, had sought a direction, which the trial Judge refused, about the defendant's failure to call the specialist surgeon who had operated upon the deceased. The jury returned a verdict for the defendant. The plaintiff sought a new trial on the ground that the trial Judge was in error in failing to give the direction. Hutley and Mahoney JJA thought the appeal should be dismissed, Glass JA thought it should be allowed. At 197 Hutley JA said:

"A Jones v Dunkel direction should not be given, unless there is actual evidence before the jury that the witness whose absence is to be the subject of comment is not available to the party seeking the benefit of inferences from his absence. Otherwise the opportunities for grave injustice will be open. There is a great difference in directing the jury, where a party, or a person clearly under the control of a party, is not called, and where the only basis for inferring that a witness is not equally available is a jury supposed judicial knowledge. This, in many cases, involving professions, merely gives prejudice and suspicion full play.

Similarly, in my opinion, the evidence should point to the witnesses not only being available, but having relevant knowledge to put before the Court."

Between 200 and 202 Glass JA set out nine propositions. Five to seven were as follows:

"(5) Whether the principle can be applied is a question of law, which admits of only one answer. No exercise of discretion is involved. The jury should not be denied proper guidance as to the relevance of the failure, if they find it to have occurred; Jones v Dunkel. A party is entitled in an appropriate case to have proper directions given to the jury on this question: Cafe v Australian Portland Cement Pty Ltd (1965) 83 WN (Pt1) (NSW) 280 at 287. If the judge wrongly withholds a direction that a failure may be used in a particular way, the party entitled to it is denied an advantage which could have helped him in the resolution of a conflict in the evidence: Earle v Castlemain District Community Hospital [1974] VR 722 at 727,728.

(6) Whether the principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained.

(7) The first condition is also described as existing where it would be natural for one party to produce the witness: Wigmore, para286, or the witness would be expected to be available to one party rather than the other: O' Donnell v Reichard [1975] VR 916 at 921, or where the circumstances excuse one party from calling the witness, but require the other party to call him; ibid, 920, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him: ibid, 920, Regina v Burdett (1820) 4 Barn & Ald 95; 106 ER 873, or where the witness' knowledge may be regarded as the knowledge of one party rather than the other. Earle v Castlemaine District Community Hospital at 833, or where his absence should be regarded as adverse to the case of one party rather than the other: ibid 734. It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary: ibid: 728. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however,

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some judicial opinion that this is not necessarily so: ibid, 728. Evidence capable of satisfying this condition has been held to exist in relation to a party's foreman: Café v Australian Portland Cement Pty Ltd; his safety officer: Earle v Castlemaine District Community Hospital; his accountant: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348; his treating doctor: O'Donnell v Reichard at 921."

The appellant relied upon these statements of principle. In my opinion, no ground existed for saying that Mr Pears would be expected to be called by the appellant rather than Jiweni or could be regarded as in the appellant's camp, so as to make it unrealistic for Jiweni to call him. Mr Pears was at the time retained as a professional adviser by Jiweni, subject, one would expect, to the ordinary duty of an accountant not to disclose information about a client's affairs; see Dickerson, Accountants and the Law of Negligence, at 97.

In my opinion, no direction based on Jones v Dunkel should have been given which could lead the jury to think that it could more confidently accept Jiweni's case because of the appellant's failure to call Mr Pears as a witness. There was a misdirection. Moreover it was a misdirection relating to evidence about the principal issue between the parties namely, whether Jiweni had transferred its business at the hotel before the date upon which the appellant was employed and injured. As the trial Judge remarked before beginning his review of the evidence about employment there was evidence both ways. Having finished this part of his summing up, his Honour said that he had spent a lot of time on it because he thought it was fairly clear that this was the fundamental issue between the parties.

"Unless the plaintiff satisfies you on the balance of probabilities that things are as she contends, then that will be the end of your inquiry and you will find a verdict for the defendant and matters will not go further."

In this context, his Honour directed that if it appeared to the jury that a party, in this case the appellant, ought to have called a witness, in this case Mr Pears, and had not called that witness and had failed to bring satisfactory evidence to the jury to say why that witness had not been called the jury might draw the inference that the evidence of that witness, namely Mr Pears, would not have assisted that party's, namely the appellant's, case. His Honour said:

"T say you may draw that inference. You do not have to draw that inference. It is a matter for you whether you draw the inference or not."

Tf the appellant's counsel had applied to have the direction with trial Judge had refused, the appellant would, in my opinion, be entitled to a new trial.

FAILURE TO OBJECT TO DIRECTION

However, counsel for the appellant never addressed a submission to the trial Judge that the direction should not have been given or should be withdrawn. Indeed, a reading of the transcript leads me to the conclusion that counsel acquiesced in its propriety. If the appellant's submission that the misdirection should lead to a new trial prevails, the earlier trial will have been aborted and the costs of it entirely wasted. The question is whether even so justice demands that there be a new trial.

DIRECTION ABOUT JIWENI AS OCCUPIER

Into the consideration of whether there should be a new trial must be brought the appellant's other principal point, namely that his Honour failed to direct the jury that it was open to it to find, if not satisfied that Jiweni was the appellant's employer, that Jiweni was the occupier of the premises at the time the appellant

URJ LUTWYCHE v JIWENI PTY LTD (Sheller JA) 11

was injured, if it was satisfied that it had a legal right to control access to and the activities on the premises even though not engaged in the day to day operation of the business. This was the direction that Mr Taylor SC, who appeared for the appellant, said should have been given and which obviously could have been asked for.

The trial Judge referred to Mr Murphy's alternative submission that the jury might find that Jiweni was not the employer but was still the occupier. His Honour said that it seemed to him to be quite an unlikely proposition but added "that is all a matter for you of course - but it seems to me that the evidence that either shows that Jiweni was the employer or shows that it wasn't, also shows that it was the occupier or was not".

No doubt it could have been argued that after 31 October 1983 Jiweni remained in occupation of the premises, in the sense of retaining control of the premises, even though the business had been transferred to Mr Bamford and Mr Morrison who became the appellant's employers. It is unknown whether the argument was put this way and no objection was taken to what the trial Judge said about the evidence in the passage that I have quoted.

In the absence of any application to the trial Judge for further direction, no ground is shown for this Court's intervention, particularly in light of Mr Murphy's remarks on the third day of the trial that there was no evidence of which he was aware that anyone apart from the employer was the occupier of the premises and that if the appellant failed to establish that Jiweni was the employer she would fail to establish that Jiweni was the occupier.

CONCLUSION

I think the decision as to whether or not in the circumstances of this case justice demands that the appellant have a new trial turns entirely upon the misdirection as to the effect of Mr Pears not being called to give evidence for the appellant. The direction was significant and may have been decisive. The jury were out for most of the day before returning a verdict. The evidence about whether the business had been transferred before the accident away from Jiweni was quite evenly balanced. The decisive matter, which led the jury to return a verdict for Jiweni, could well have been the conclusion that, because Mr Pears was not called in circumstances where the appellant might be expected to call him, the inference could be drawn that his evidence would not have assisted the appellant.

The misdirection should have been obvious to counsel for the appellant yet no redirection was sought. I do not think the Court should speculate about this. It would have been open to seek to place evidence before the Court from counsel explaining why no redirection was sought and in particular whether this was due to an oversight rather than due to a deliberate tactical decision. I have come to the conclusion in the circumstances justice does not demand that there be a new trial and that despite the misdirection the appeal should be dismissed with costs.

PRACTICE

Since preparing this judgment I have had the benefit of reading in draft the joint judgment of the President of Beazley JA. I agree that as a matter of practice a statement or evidence, as appropriate, should put before the Court any explanation to be advanced for the failure to take, at the proper time and in the proper form, an objection upon which it is sought to rely on the hearing of the appeal.

12 UNREPORTED JUDGMENTS

ORDER In my opinion, the appeal should be dismissed with costs.

1. Appeal allowed, by majority. 5 2. Verdict of Barr AJ set aside and a new trial ordered. 3. The respondent to pay the costs of the appeal, but to have, if qualified, a certificate under the Suitor's Fund Act 1951 (NSW).

Counsel for the appellant: P W Taylor SC/M Murphy Solicitor for the appellant: Julian A Callachor

Counsel for the respondent: M L Williams

Solicitors for the respondent: Sparke Helmore