Evidence in appropriate form is critical to win cases by settlement or in a contested hearing

10/12/2019

At Watson & Watson we have for many years acted for one party or another in litigation in all areas including commercial work, banking and finance, building and construction, strata and criminal in particular, white collar crime.

Cases are decided on the basis of the evidence that is before the Court or Tribunal. At Watson & Watson we are rigorous in advising our clients as to the extreme importance of the appropriate evidence in the appropriate form over many years.  Once the case is determined then it is very difficult and expensive to try and right the wrong due to the lack of appropriate evidence in the original proceedings.

There are rules and regulations as to what is appropriate evidence, what constitutes evidence, how evidence can be adduced and on what basis a Court or Tribunal will accept evidence.  Some Tribunals are not as strict in relation to the acceptance or the format of the evidence.

When Richard Watson commenced as a Solicitor, he was employed for the first few years in a small city practice which was involved with hundreds of personal injury and/or workers compensation cases each month.  One Solicitor who was the Litigation Partner of the firm acted in more than a thousand new cases a year. There was a process for which each of those matters were considered, prepared, litigated and/or settled.

The most critical element was to ascertain the factual matrix which was the basis of the claim.  The factual matrix included all facts.

The initial stage was to obtain a statement at first instance, almost at the first conference setting out what were the facts surrounding the event the subject of the case for example, many cases involved motor vehicle accidents. Once there is a preliminary statement it does not complete the “statement” or evidence; most persons are very good at telling their Lawyer all the good points about their case.  This is not in the end helpful, unless all the risk points are considered.  The conduct of a case is a risk adverse analysis.

Once there is an initial statement setting out the facts following thereafter, is the obtaining of the evidence to prove each element of the case. 

If we use for example, a Home Owner who has entered into a Contract for construction works at his or her home; and there is then a dispute between the Home Owner and the Builder.

The Home Owner would need to establish at the hearing various matters which are critical to being successful in a case.  Similarly, if a Builder was to bring a claim, the Builder would have to establish certain facts.  It is amazing how often the basic elements are not in evidence in the New South Wales Civil and Administrative Tribunal (NCAT) where thousands of cases a year are commenced.  There are many cases which fail because of lack of evidence.

The art of obtaining a clear statement seems to have been lost over the years on many less experienced Lawyers. 

By separate article, we set out some observations in relation to corroborative evidence by the Supreme Court of Appeal recently in the case of Nagamuthu v Shanmugarajah.  In that case the Trial Judge was less than impressed by the oral evidence of either the Plaintiff or Defendant.  One should never rely solely upon the oral evidence of either a Plaintiff, a Defendant or other critical witness as it can be unreliable.  Even if it is 100% correct, the Court will not be able to ascertain this without some other evidence. 

The Court in Nagamuthu’s case made some observations about the nature of corroborative evidence namely:

• It is evidence, which is included evidence, which ‘confirms', 'supports' or 'strengthens' other evidence in the sense that it 'renders [that] other evidence more probable’.
• “If in a narrative of facts, part of a story is corroborated, that may be sufficient to give credence to the whole. But the corroboration must be of the evidence as to the fact to be proved, not of the general credibility of the witness”.
• “There is nothing technical in the idea of corroboration. When in the ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter; the better it fits in, the more one is inclined to believe it. The doubted statement is corroborated to a greater or less extent by the other statements or circumstances with which it fits in”.

In Nagamuthu’s case the only contemporaneous documents accepted by the Trial Judge as corroborative evidence were:

• Three post-it notes (one of which had writing on both sides) in the possession of the Plaintiff and upon which the Defendant accepted (without the possible exception of one date) that he had written a series of figures and calculations; and
• A translation and transcript of two recorded conversations between the Defendant and the Plaintiff during which various seetus and amounts owing under them by various participants including the Defendant, were discussed.

One should never forget that the Plaintiff has the obligation to prove and establish his or case for example, in a civil case on the balance of probability.  This is a fundamental principle at law.  A mere statement of fact does not make it a fact.  In Nagamuthu’s case the Trial Judge was faced with the position that neither the Plaintiff nor the Defendant were in the Judge’s view, acceptable witnesses.  In that case it was critical that there was some other evidence to assist the Trial Judge to make a decision in relation to the Plaintiff’s claim.  As referred to above, the corroborative evidence was fairly limited however the Trial Judge found that it was enough to find in favour of the Plaintiff.  The Supreme Court of Appeal of New South Wales in Nagamuthu’s case found and decided as a matter of fact that the notes referred to above were corroborative evidence and accordingly, accepted the Trial Judgment that the Plaintiff was to succeed and the Court of Appeal appropriately dismissed the Appeal. 

An Appeal is not a re-run of the hearing. 

To Appeal a decision one needs to find a legal basis for the Appeal.  Trial Judges are allowed to make mistakes as to findings of fact and generally this will not be overturned on an Appeal. 

We recently received instructions from a Home Owner who had lost at first instance, in the proceedings.  We were informed that the Home Owner’s former Solicitor had advised the Home Owner that the Appeal Court could fix the matter.  This is not what occurs.  The Appeal case is not a complete reconsideration of the matter with or without further evidence.

Critically a Judge in a Court case must decide based on the evidence what are the facts which form the basis of making a decision.  Unfortunately those facts may differ from the actual facts in particular, if the evidence does not prove the actual facts. 

Further the art of cross examination however is a very important aspect in the conduct of a Court case at a hearing.

At Watson & Watson our prolific litigation experience provides the basis for our thorough approach to every matter.  Proper preparation can be expensive however a loss is more expensive and devastating than a win.  If you are seeking advice in relation to proposed litigation proceedings or have any concerns regarding your matter which is before the Court, please do not hesitate to contact Richard Watson Accredited Specialist Commercial Litigation or Shereen Da Gloria Personal Assistant to discuss your matter and seek appropriate advice from experienced laweyrs.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.