Hudson v Mellis[2016] QCA 171

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  I agree with Mullins J’s reasons for dismissing this appeal with costs.
2. PHILIPPIDES JA:  I agree with the reasons of Mullins J and the order proposed.
3. MULLINS J:  The appellant who is a solicitor appears for himself.  He was unsuccessful in his claim for defamation against the respondent:  Hudson v Mellis [2015] QDC 284 (the reasons).  The learned trial judge also ordered costs against the appellant:  Hudson v Mellis [2015] QDC 285 (the costs reasons).
4. The claim arose out of events that occurred at the Rubyvale Caravan Park on 8 October 2013.  The appellant was on a fund raising tour of Central Queensland with Mr Blackman, a fellow member of the Rotary Club of Brisbane Airport Inc (Rotary Club) and Mrs Blackman.  The respondent was a part owner of the caravan park.
5. At about 12.30 pm on 8 October 2013, the appellant entered the respondent’s office and asked whether he could use the caravan park swimming pool.  That request was declined by the respondent.
6. There was then an incident between the appellant and the respondent that started over the appellant’s attempt to use the caravan park toilets by the appellant.  The appellant then left the caravan park and the respondent made a police complaint with respect to the incident.
7. The respondent also made a handwritten statement on 7 February 2014 upon request from Mr Blackman, provided the statement to Mr Blackman, and consented to his providing a copy of it to the Rotary Club.  It is that written statement that the appellant asserted contained defamatory allegations against him.
8. The respondent defended the claim in reliance on s 25 of the Defamation Act 2005 (Qld) on the basis the written statement was substantially truthful in all material respects.
9. The evidence at the trial was relatively confined and the entire trial, including the giving of the reasons, was completed in less than a day.

The reasons

10. At [5] of the reasons, the trial judge quoted the defamatory allegations (a) to (k) from the respondent’s written statement as set out in the amended statement of claim.  In [6], the trial judge noted that, apart from the allegation in paragraph (b), the respondent admitted all the matters alleged.  Paragraph (b) stated:

“That the defendant attempted to stop the plaintiff from entering the toilet block by saying the following words to him ‘You are not using our amenities, please leave now you are trespassing’.”

11. In respect of paragraph (b), the respondent pleaded in the amended defence that the respondent said words to the effect “excuse me, you are not allowed to use our facilities as you are not a registered guest” and that when the appellant continued to attempt to use the security code to enter the toilets, the respondent said to the appellant words to the effect “you are not using our amenities, please leave now, you are trespassing”.
12. At [10] of the reasons, the trial judge identified as the real issue in the case “the determination of what in fact went on at the caravan park at Rubyvale at about lunchtime on 8 October 2013”.  The trial judge further refined the principal issue at [14] of the reasons, as whether or not the appellant pushed the respondent as alleged.
13. The trial judge referred to the evidence given by each of the witnesses.  Apart from the parties, evidence was given by Mr and Mrs Lindsay who were tenants of the caravan park staying on lot 2.  Mr Blackman gave evidence of receiving the written statement from the respondent and his evidence was described by the trial judge at [12] as uncontentious.  Mr Brand gave evidence of a conversation he had with the appellant in which the appellant said he could not recollect the assault.  The trial judge noted at [13] that he did not find Mr Brand’s evidence of any real help.  At [14], the trial judge noted that Mrs Lindsay had no real recollection of the events and, whilst Mr Lindsay had greater recall, his evidence was of only limited help in resolving the principal issue.  After noting at [14] that Mr Lindsay recalled “an exchange between the plaintiff and the defendant and perhaps that it became somewhat heated”, but that the passage of time and the restrictive view that he had limited the worth of some of the evidence he gave, the trial judge then stated:

“[15]Mr Lindsay does, however, attest to giving the plaintiff the code to enable him to access the toilets at the caravan park and corroborates the evidence of the defendant, that she stopped the plaintiff accessing those toilets and also stopped him from very soon after accessing the swimming pool area. On both occasions Mr Lindsay observed her moving into the space between the plaintiff and the area he was trying to access, namely, the door of the toilet blocks and the gate to the pool. Near the pool gate he described the two of them as so close to one another that he thought they must have been touching. These aspects of his evidence corroborate the evidence of the defendant, and were inconsistent with the plaintiff’s evidence.

[16]By contrast, the plaintiff said he went to the area of the toilets, but did not recall if he had in fact used them. He thought he may have been given a code by Mr Lindsay, but was uncertain of this. He made no mention of the defendant stopping him accessing the toilets by standing between him and the toilet door. He said when he left the toilet he used a covered walkway for a short distance and was only then joined by the defendant telling him to ‘get out’ repeatedly. He denied pushing the defendant, and denied trying to access the pool area.

[17]A detailed plan of the caravan park, apparently used by the defendant in conducting the business, showed no such covered walkway. Although the plaintiff spoke of it in his evidence, Mrs Mellis denied its existence. The plaintiff did not suggest otherwise during his cross-examination of her. He also denied attempting to access the swimming pool, a matter Mrs Mellis spoke of and, as I’ve said, her evidence was corroborated in this regard by Mr Lindsay.

[18]These matters are of importance in determining the issue in this case. Nevertheless, the most compelling factor causing me to reject the plaintiff’s evidence entirely was his demeanour in court. He was aggressive and strident. More particularly, he was grossly offensive and rude to the defendant, resulting in a number of heated exchanges between he and I. He suggested she was a liar. He asked if she had a history of mental disorder or a criminal history. Whilst these might be said to be matters of mere inquiry, there was no evidence of any such factors and no evidence of any such factors tainting her evidence in any way. I was appalled at the conduct of his case by a solicitor who conducts his own practice.”

14. The trial judge explained in [19] of the reasons that the importance of “that ready temper and bombast of the plaintiff” displayed in the trial was “that it was those very features of his personality which caused me to conclude that he did react as the defendant described when she refused him entry to the toilets and pool”.  The trial judge therefore accepted the respondent’s evidence of what occurred as correct, noting that he was impressed by her when she gave her evidence and that salient features of her evidence were corroborated by Mr Lindsay.  The trial judge also noted that her evidence was “almost entirely consistent with the content of the signed statement and with the matters alleged in her defence”.  The trial judge at [20] rejected the appellant’s version, explaining:

“[The defendant] struck me as a determined woman – one who told the plaintiff to leave in no uncertain manner and perhaps loudly or angrily after he had pushed her, but one who was otherwise not unduly argumentative or rude.  I am sure she had her own reasons to deny the plaintiff the use of the park facilities, but told the plaintiff of that decision politely but resolutely.  I accept unreservedly her version of what occurred and utterly reject the plaintiff’s version.”

15. The trial judge also found at [21] of the reasons that the appellant’s recall of events was “quite mistaken”.
16. The trial judge concluded at [22] of the reasons that the written statement provided by the respondent to Mr Blackman recounted correctly what occurred at the caravan park and the respondent had established her defence under s 25 of the Act.  Judgment was given for the respondent and the appellant was ordered to pay the respondent’s costs of the proceeding, other than in relation to any reserved costs.  The parties made written submissions with respect to reserved costs.  On 13 November 2015 the trial judge published the costs reasons and ordered the appellant to pay the respondent’s costs to be assessed of the applications in which costs were reserved on 2 and 9 March 2015.

Grounds of appeal

17. There are numerous separate grounds listed in the amended notice of appeal, but not all are now being pursued by the appellant.  In particular, the appellant abandoned his allegation that the trial judge showed personal and procedural bias against him.  Those grounds that remain in issue fall under three broad headings that the trial judge failed to:

1. give proper regard to the evidence affecting the appellant’s credit;
2. give proper regard to evidence affecting the respondent’s credit;
3. give proper consideration to the evidence of witnesses or confused their evidence.

18. The specific grounds that are listed under these broad headings in the amended notice of appeal overlap and are repetitive.  In order to make out the grounds of appeal, the appellant focused his oral submissions on three factual matters:

(i)whether the evidence of distances and dimensions supported the trial judge’s acceptance of the respondent’s version that the appellant pushed her near the pool gate;

(ii)the failure of the respondent to mention later in the afternoon to Mrs Lindsay that she had been assaulted by the appellant;

(iii)the words attributed by the respondent to the appellant when she confronted him at the toilet block and then near the pool gate were not “the sort of phraseology” that the appellant would use.

19. The appellant seeks to have this court make different findings on the appeal in respect of the credit of the appellant and the respondent respectively than were made by the trial judge.

Applicable principles to the review by an appeal court of findings of fact based on the credibility of witnesses

20. The parties recognised that the role of this court on the appeal was constrained by the approach that an appeal court must take on an appeal by way of rehearing on the evidence before the trial court:  Fox v Percy (2003) 214 CLR 118.  Where the trial judge’s decision is based on credibility findings, it is still possible for the appellate review to show that the trial judge’s conclusion was erroneous by reference to “incontrovertible facts or uncontested testimony” or where the decision at trial is “glaringly improbable” or “contrary to compelling inferences”:  Fox v Percy at [28]-[29].
21. The appellant relies on the circumstances of the successful appeal in Putland v Nowak [2012] QCA 121 as supporting his contention that his appeal should succeed in this matter, because of similarities between Putland and his matter and, in particular, the observations at [54] and [58].
22. Putland is merely an example of the application of the applicable principles by the appeal court to the findings made by the trial judge in that case.  After a review of the evidence, the conclusion was reached at [83] that the trial judge failed to use, and misused, the advantage he enjoyed as the trial judge.  The decision on appeal in Putland turned entirely on the relationship between the evidence and findings in that case and it is erroneous to seek to draw analogies with the observations on the evidence in that case.

Summary of the relevant evidence

23. The appellant’s evidence-in-chief was as follows.  It was a hot day and in the middle of the day he went into the caravan park.  He saw Mr and Mrs Lindsay in front of him sitting outside the front of their caravan.  He had a chat with them and then went into the caravan park office where he asked the respondent whether he could have a swim in the pool, but she said “no, it was for guests”.  He offered to pay, but the respondent still said no.  He went down to the toilet block.  He cannot recall whether he used it, and conceded it was possible he did not, as there was some lock on it.  He walked along a paved covered walkway from the toilet to the pool, but when he got halfway along the path he “exited” off onto open ground between the toilet block and Mr and Mrs Lindsay’s caravan.  (In his submissions on the appeal, the appellant asserted that there was an error in the transcript where it recorded that he said “between the toilet block and the caravans that Mr and Mrs Lindsay were staying in”, as “it was obviously between the toilet block and the pool”.  I have checked the audio recording of the appellant’s evidence at the trial and the transcript records accurately what the appellant said in evidence.)
24. When he “exited”, he could see Mr and Mrs Lindsay in the distance about 20 metres away.  It was then the respondent was at his right side yelling at him to get out of the park.  She was saying “get out, get out”, as he was walking towards the exit and must have said it about seven or eight times.  He stopped and said “there’s no need to shout at me” and she stopped shouting.  It was then that Mr Lindsay came over and said “I think you better leave”.  The appellant continued to walk out of the park and the respondent was behind him, yelling all the time until he left the park.  He never touched the respondent at any stage and only spoke to her twice, first, when he was in the office and then when he asked her to stop shouting at him.
25. In cross-examination, the appellant denied asking Mr and Mrs Lindsay for a code to enter the toilets.  He believed he attempted to enter the toilet, but did not have a clear recollection of going into the toilet.  It was when he veered off from the covered walkway onto some dirt that the respondent appeared and was shouting over and over.  He thought that Mr Lindsay said to him “I think you’d better go”.  The respondent was behind him as he left the caravan park.
26. It was possible Mr and Mrs Lindsay gave the code for the toilet block to him.  The appellant denied that the respondent attempted to stop him from entering the toilet block.  The appellant denied the respondent said to him at the toilet block “You are not allowed to use our facilities.  You are not a registered guest”.  He denied that the respondent said to him “Please leave now.  You are trespassing”.  The appellant denied saying to the respondent “You are not going to stop me doing what I want”.  The appellant did not recall the respondent following him on the path that went to the pool, and denied that the respondent said to him as she followed “Leave my property.  You are trespassing”.  The appellant was halfway along the path, when he saw a break in the path which went onto the dirt and was directly in line with Mr and Mrs Lindsay, and that is where he “exited”.  The appellant made no attempt to open the pool gate to get into the pool.  The appellant denied pushing the respondent with both hands.  The appellant denied saying to the respondent “You think putting a chain on there is going to stop me.  I’ll do whatever I want, go wherever I want.  I’ll be back.  You are not going to stop me”.
27. There was no objection by the appellant to the tender on behalf of the respondent of the police occurrence log (exhibit 1) that recorded a callout at 2 pm on 8 October 2013 in response to the respondent’s complaint about a male person who, when told he could not use the swimming pool, “then pushed her out of the way with both hands to her shoulders saying ‘I can do whatever I like’”.
28. The respondent’s evidence-in-chief was as follows.  There was a distance of about two metres between the men’s toilets and the pool.  There was no covered walkway.  Mr and Mrs Lindsay were staying at the site that is noted as number 2 on the map prepared by the respondent (exhibit 2).  The passage between the concrete slabs for the caravan sites where site 2 was and the pool and toilet block was wide enough to drive a car and caravan through.  The appellant came in around lunch time and asked if he could use the swimming pool and the respondent said no, he couldn’t use the pool, because the park facilities were for residents.  He wanted to pay for the use of the pool and the respondent said no.
29. The respondent then observed the appellant walk from the side of the office straight to the men’s toilets, and then watched him walk back and speak to Mr and Mrs Lindsay on site 2.  The respondent then saw him going back towards the men’s toilets.  The respondent went down to the toilets and told the appellant that he was not allowed to use the park toilets.  The appellant then turned and looked at her, did not say anything, and then proceeded to turn the lock, but the door would not open.  The respondent said “Please leave.  You’re trespassing.  You’re not using it”.  The appellant started to put the numbers in to open the door, but the respondent stood in front of him so he could not finish putting the numbers in.  The appellant said to her “You’re not going to stop me doing what I want”, and turned and walked towards the pool and the pool gate.
30. The respondent followed the appellant as he was walking to the pool and said “Please leave.  You are trespassing”.  The appellant was unsuccessful in opening the child proof gate and the respondent managed to pull the chain that was there around and locked the padlock onto the chain, so the appellant could not get into the pool.  The appellant turned and pushed the respondent on the shoulders with both hands and said “you think that chain is going to stop me from getting in there”.  When the appellant pushed her, she grabbed the top of the pool fence, because the pool path goes up on a slant, and she had her hand on the top of the fence and swung around and it hit her shoulder and elbow and she twisted her arm.  The appellant also said to her “I’ll do what I want”.  The respondent was yelling at him to get out, that he was trespassing and said “I’m calling the police”.  Mr Lindsay stood up and took a few steps towards them and said to the appellant “I think it’s about time you left”.  The appellant left with the respondent following him out.
31. After the appellant left the caravan park and the respondent had rung the police, she went down to Mr and Mrs Lindsay and spoke to them and “asked them if they could believe the behaviour of what had happened”.
32. During cross-examination of the respondent, the appellant tendered an aerial photograph of the site (exhibit 3), two photographs of the caravan park which he had downloaded from the internet, one of which showed the pool and fence (exhibit 4), and a copy of the handwritten statement provided by the respondent to Mr Blackman (exhibit 5).
33. The statement commenced with the respondent stating “I noticed a man with a backpack, not a registered guest in my caravan park.  He walked towards the mens toilets”.  It was put to the respondent that there was a gap in her statement, as she had not mentioned anything about the appellant coming into the office and asking to swim in the pool.  The respondent explained that she had been asked by Mr Blackman to write a statement about what happened at the pool, not prior to that.  She did not see the relevance of what had occurred in the office.
34. The respondent denied that, apart from the conversation she had in the office with the appellant, the only words she spoke to him were “Get out” repeated numerous times.  The respondent followed the appellant as he walked towards the pool gate.  When he was standing at the gate trying to get it open, the appellant walked up and said “You can’t use that; please leave”, and as she was pulling at it, the respondent leant in front of him and wrapped the chain around the gate.  That was when the appellant turned around and pushed the respondent.  The appellant put to the respondent that he was not anywhere near the pool, and the respondent confirmed she had followed him from the toilet block, after she had asked him to leave, because he was trespassing.  The respondent agreed with the appellant that it was a typical pool fence, describing it as “a proper pool fence”.
35. The respondent demonstrated how the appellant pushed her on her shoulders with open hands.  As the respondent fell backwards, she grabbed onto the side of the fence and was struck on her right arm on the elbow.  By reference to the photograph of the pool in exhibit 4, the respondent pointed to the thick part of the top of the fence where she grabbed, and then as she fell backwards, the elbow and upper part of her arms struck the fence a little below the top rail.
36. The appellant asked the respondent to demonstrate how she hit her elbow by standing up against the trial judge’s bench, as if it were the fence.  What the respondent said during the demonstration was not recorded in the transcript, but the trial judge repeated that the respondent said the height of the bench was not the height of the pool fence.  The appellant asserted “it’s exactly the height of the pool fence” and the trial judge repeated “she’s said to me that this is less than the height of the fence”.  The trial judge then asked the respondent who confirmed that it was not the height, stating:

“The fence is higher because the pool is raised.  It’s not on the ground.  There’s a – a raised bit that the pool sits in, so the pool is higher – the fence is higher.”

37. The respondent confirmed that what she was saying was that the fence is higher.  The appellant had a tape measure in court and asserted the standard height of a pool fence is 1,200 millimetres in Queensland.  The trial judge made the point that he had no evidence before him as to the height of the fence, other than the respondent’s evidence.  The appellant urged the trial judge to take judicial notice of the standard height of a pool fence which the trial judge understandably refused to do.  The appellant then requested the bailiff to measure the respondent from the floor to her shoulder.  The measurement was 1,460 millimetres.
38. The appellant asserted that the respondent’s explanation meant she would have been well above the height of the pool fence with her arm.  The respondent denied the appellant’s assertions that she did not strike the fence and that she was not pushed.  The respondent demonstrated near her right elbow where there was a large tender bruise the next day.  She did not get medical treatment for it.  The respondent said to Mr and Mrs Lindsay after the event “did you see him push me; can you believe it”.  The respondent did not take a photograph of her injury.
39. The respondent did not yell at the appellant at the toilet, but yelled at him at the pool after he pushed her.  The respondent did not remember the appellant telling her to be quiet.  The appellant put to the respondent that she invented the assault to make her story more cogent or to “give it currency”.  The respondent denied that she made up a story about being pushed.  The respondent denied she was a liar.
40. The appellant called Mrs Lindsay as a witness in his case.  She remembered a person coming into the park, while she and Mr Lindsay were sitting under the awning of their motor home.  Later on that evening when the respondent was showing Mr and Mrs Lindsay where the television was, the respondent told them she had called the police.  Mrs Lindsay said that the respondent called the police “because the said person was trying to get into the swimming pool”.  Mrs Lindsay could not remember whether the respondent “said it or not or how that went”.  Mrs Lindsay could recall a man talking to her in the caravan park on the day in question, but she had no recollection of seeing the respondent at that time.  She had a vague memory of something happening, but she did not remember any main details.
41. The respondent called Mr Lindsay as a witness in her case.  His evidence-in-chief was as follows.  A gentleman appeared and started talking to him and his wife when they were sitting under the awning outside their motor home in the caravan park.  The man asked him, if he had the code for the toilets, and Mr Lindsay gave him the code.  A few seconds later, he saw the respondent running past them going towards the toilet where the gentleman was trying to get into the toilet.  The respondent attempted to stop him and she got between him and the door.  He did not hear the conversation, as he was quite a distance away, but could hear raised voices.  A short while later, the man went straight across to the swimming pool and the respondent followed him.  He tried to get in the gate, but the gate was very difficult to open.  He could see both of them partially.  The arguments got really serious and she got in between the man and the pool and did something that stopped him getting in.  He assumed that they “must have been touching because she was trying to stop him and he was trying to get in”.  Mr Lindsay did not recall saying anything himself to the man.
42. In cross-examination, Mr Lindsay explained that he got up to have a look when he saw the respondent going past and said:

“I stood up while it was going on – because it was quite short at the toilet – and then it moved into line and [indistinct] where we could see into the pool.”

43. There was some obstruction that prevented Mr Lindsay seeing every move at the pool.  He did not remember a paved pathway from the toilet block to the pool.  He did not remember coming over towards the appellant and the respondent at some stage.

The appellant’s credit

44. I will identify which of the grounds relied on by the appellant that have any relevance to whether an error was made in assessing the appellant’s credit and rejecting his evidence.
45. The first of such grounds (ground 1) is that the trial judge gave too much weight to the demeanour of the appellant.  Even acknowledging the advantage which a trial judge enjoys in assessing the demeanour of a party, the matters referred to in [18] of the reasons are fair reflections of what the transcript of the trial reveals about the appellant’s conduct during the trial.  During the course of the submissions by Ms Chekirova of counsel for the respondent, the trial judge expressed the view, ultimately recorded in the reasons at [18], that the assessment of credit in this case was assisted by the demeanour of each of the parties and expressly alerted the appellant to the fact that the findings to be made on demeanour and the use to be made of them were matters on which the appellant should make submissions to the trial judge.  The question raised by the appellant of the weight placed on demeanour by the trial judge is a relevant ground on the issue of credit.
46. Ground 2 is the trial judge failed to take into account that standard pool fences in Queensland are 1,200 millimetres high and that the respondent’s pool fence was, on her own admission, a standard Queensland pool fence.  This ground misstates the evidence.  First, there was no evidence adduced by the appellant as to the required or “legal” height of the standard pool fence in Queensland.  Secondly, the respondent admitted to the pool fence being “a typical pool fence” and “a proper pool fence” which is not equivalent to an admission that it was exactly the height of a standard Queensland pool fence.  There was no error made by the trial judge in respect of failing to take into account matters that were not the subject of evidence.
47. Ground 3 is that the trial judge failed to give any proper weight to the respondent’s shoulder height of 1,460mm is irrelevant, when there was no measurement against which to compare that shoulder height.  It follows that ground 4 which is based on the failure of the trial judge to give weight to the comparison of the two dimensions (the respondent’s shoulder height and the height of the pool fence at the caravan park as assumed by the appellant) is also irrelevant and misconceived.
48. Although the appellant during the course of the appeal identified that he was still relying on ground 5, the amended outline of argument which he provided to the court during the hearing of the appeal deleted ground 5.  That ground is unsustainable, in any case, as it alleged the trial judge gave too much weight to the respondent’s evidence that there was a slight rise in the slope of the land around the pool fence, but this was a matter on which the appellant did not cross-examine the respondent.
49. Ground 5A is the trial judge failed to consider the apparent contradiction in the respondent’s evidence as to how she grabbed the pool fence.  The respondent said in evidence-in-chief that she grabbed “the top of the pool fence”, explaining:

“When I fell, I had my hand on the top of the fence and swung around back like that … and it hit my shoulder and twisted – hit my elbow and twisted my arm.”

50. The respondent’s evidence in cross-examination was that when she was falling backwards, she grabbed onto “the side of the fence”, and then again during cross-examination, when responding to the invitation of the trial judge to continue with her evidence about where she hit the fence, the respondent stated:

“When the ramp comes up – there’s a ramp like this … and it’s about that … wide.  It comes up to the pool and I grabbed the top of the fence there … and because it was the edge of the – the ramp I swung back.  Because he pushed me I went back like that … but I grabbed the – the fence and it hit my elbow there.

Right? --- And it sort of twisted my shoulder round because I didn’t want to fall in the garden.

Yes.  So you’re demonstrating catching the top of the fence ---? ---Yes.

--- with your right hand---?---Yes.

--- and then as you fell backwards the elbow and upper part of your arm striking the fence a little below the top rail?--- Yes.”

51. The discrepancy which the appellant asserts is evident within the respondent’s evidence as to how she grabbed the pool fence is not evident when the complete answers of the respondent on the topic are considered.  It is not apparent that the answer in which the side of the fence is referred to is referring to anything more than the fence generally, rather than being specific about where her hand was on the fence.  In any case, the appellant failed to cross-examine the respondent on what he perceived to be the discrepancy.  In those circumstances, the appellant cannot rely on this ground as undermining the findings on credit.
52. Ground 6 is that the trial judge erred in refusing to allow the appellant to have the respondent re-enact the alleged assault in court.  The respondent had demonstrated during evidence-in-chief how she was pushed by the respondent.  From the transcript references which the appellant provides in support of this ground, his complaint is about the trial judge’s refusal to allow the respondent to demonstrate by standing against the judge’s bench how she saved herself from falling to the ground.  The underlying premise for the appellant seeking this demonstration was that the appellant was asserting (from the bar table) that the trial judge’s bench was the same height as the pool fence.  The respondent’s evidence was that the pool fence was higher than the trial judge’s bench.  Apart from the photograph of the pool fence in exhibit 4, the only admissible evidence on the height of the pool fence was the respondent’s evidence.  There was therefore no point in the appellant continuing with the demonstration that involved the respondent standing against the judge’s bench.
53. Ground 7 is that the trial judge gave no weight to the appellant’s evidence that he spoke twice only to the respondent at the caravan park.  This ground is relevant to whether there was any error in the trial judge’s rejection of the appellant’s evidence, but is really another way of saying that his version should have been accepted in preference to the respondent’s version.
54. Ground 8 incorporates a submission that was not put before the trial judge that the event at the toilet and the event at the pool should be analysed separately.  The appellant claims the trial judge erred in linking the events that happened at the toilet and near the pool too closely together, as if they were a single event, when they should have been looked at separately.  This is a curious ground, as the appellant’s case was that his only confrontation with the respondent took place after he left the path between the toilet block and the pool and therefore occurred in the open area.  It is apparent from the evidence of the appellant on the one hand and, the respondent and Mr Lindsay on the other hand that the incident encompassing the entire actions of the appellant and the respondent occurred over a very short period of time.  The trial judge dealt with the evidence of these witnesses as to the events as they described them.  It can have no consequence for the appeal that the appellant characterises the trial judge’s reasons as treating the events as if they were a single event.  This ground is irrelevant to the issue of the assessment of the appellant’s credit.
55. Ground 8A focuses on the statement by the trial judge in [3] of the reasons that “A dispute arose between the plaintiff and the defendant about the plaintiff’s request to use the park facilities, in particular the swimming pool and toilet block at the caravan park”.  The appellant now cavils with the description in the reasons that there was a dispute about the appellant using the caravan park pool.  This was an aspect of the events on which there was no material dispute between the appellant and the respondent.  In fact, the trial judge also noted correctly in [3] of the reasons that “it is not disputed the defendant refused the plaintiff the use of those facilities”.  The statement that is put in issue by ground 8A was not an unreasonable description by the trial judge of the first conversation that occurred between the parties on the day in question and was part of the background against which the relevant events then took place.  This is another ground that, on any view, could not have any consequence for the outcome of the appeal and is irrelevant.
56. Ground 8B asserts the trial judge failed to properly consider the relevance of evidence in relation to who was in the caravan park office when the plaintiff first entered.  The appellant focused on the discrepancy in the evidence between the appellant and the respondent on this matter in his cross-examination of the respondent, but it was a minor aspect of the evidence relevant to credit only and subsumed by much more significant discrepancies in the evidence between the parties.  It therefore has the most marginal relevance to the issue of the assessment of the appellant’s credit.
57. Ground 8C asserts the trial judge erred in failing to take into account the “salient point” that the plaintiff did not go straight to the pool from the office which he might have been expected to do, if his intention had been to use the pool, but went to the toilet.  That was not the subject of submission by the appellant at the trial.  The question of the appellant’s intention was irrelevant to the critical issue of whether the appellant pushed the respondent near the pool gate and has no relevance to the assessment of the appellant’s credit.

The respondent’s credit

58. I will now consider which of the appellant’s specific grounds relating to the broad ground of the assessment of the respondent’s credit have, in fact, any relevance to showing an error on the part of the trial judge in assessing the respondent’s credit.
59. Ground 10 alleges an error on the part of the trial judge in saying that the statement the respondent gave to police on 8 October 2013 and exhibit 5 were similar.  This was an observation made by the trial judge at [4] of the reasons to the effect that the statement to the police (to the extent it can be gleaned from exhibit 1) was “consistent” with exhibit 5.  The appellant omitted to cross-examine the respondent on any alleged discrepancies.  The ground is misconceived.
60. Ground 11 alleges that the trial judge failed to give any proper weight to the fact that the respondent omitted from exhibit 5 that the appellant entered the caravan park office and asked her for permission to swim in the caravan park pool.  This was a matter that assumed importance for the appellant, but was irrelevant to the events that unfolded after the appellant left the office and headed for the toilet block in the caravan park.  In cross-examination, the respondent explained why she did not start her statement from the time the appellant spoke to her in the office.  This ground has some little relevance to the issue of the respondent’s credit.
61. Ground 12 is another instance of the appellant placing importance on a peripheral aspect of the evidence.  The issue was whether the appellant had pushed the respondent, not the nature of any injury which she may have suffered as a result.  Ground 12 asserts the trial judge failed to give any proper weight to the failure of the respondent to provide any evidence of injury to her elbow from the alleged assault.  This ground has marginal relevance to the issue of the respondent’s credit.
62. Ground 13 is that the trial judge failed to give any proper weight to the various distances between buildings in the caravan park.  This was one of the matters which was the subject of the appellant’s oral submissions at the hearing of the appeal.  The problem with the submissions made in respect of this ground is that they are based on assertions by the appellant that were not the subject of evidence or there was contrary evidence in respect of which the appellant did not cross-examine.  The respondent gave evidence that there was two metres between the toilet block and the pool.  That was not directly challenged in cross-examination.  On the hearing of the appeal, the appellant developed his argument by submitting the width of the caravan park road in front of the pool (shown in exhibit 3) was close to 12 metres, but the only evidence of the dimensions of internal roads was the respondent’s evidence that another driveway (the passage between the side of the park and the toilet block and pool) was wide enough to drive a car and caravan through.  (The appellant had calculated the distance of 12 metres in respect of the caravan park road he identified in his submissions on the basis of his assumption that the road had to be wide enough for two caravans to pass easily and allowing a metre in between them and a metre on either side, for which there was absolutely no support in the evidence).  This ground is irrelevant to the assessment of the respondent’s credit.

Proper consideration of the evidence of witnesses

63. I will now consider the balance of the grounds that fall under the broad heading of failure to give proper consideration to the evidence of witnesses or confusing their evidence to ascertain which grounds truly raise an issue for consideration on the appeal.
64. Ground 14 asserts the trial judge erred in failing to take note of salient features of Mr Lindsay’s evidence.  One of the aspects of Mr Lindsay’s evidence is that Mr Lindsay heard the respondent repeat the same words three or four times in a row which the appellant submits accords with his version of events that, as he was leaving the caravan park, the respondent intercepted him shouting at him repeatedly to get out.  The appellant fails to address in his argument the fact that one of the major discrepancies between his version and that of the respondent was that he said that it was only after he left the path between the toilet block and the pool that he had a confrontation with the respondent, whereas the respondent described the confrontation at the toilet block followed by the confrontation near the pool gate, where she was pushed by the appellant.  Mr Lindsay’s evidence was accepted by the trial judge at [15] of the reasons as corroboration of the respondent’s version that she confronted the appellant at both places, even though he did not see actual physical contact between the appellant and the respondent.  On an objective analysis, that is the salient feature of Mr Lindsay’s evidence, rather than his confirmation of the repeated shouting by the respondent (who also gave evidence that she yelled at the appellant after he pushed her).  The appellant’s selective approach to Mr Lindsay’s evidence by reference to one aspect of it that ignores Mr Lindsay’s evidence that was found to be corroborative of the respondent’s evidence cannot sustain a ground of appeal.
65. The other matter raised by ground 14 is the appellant’s interpretation of Mr Lindsay’s evidence, as to what he saw when he stood up and described the event that occurred after what happened at the toilet in terms “then it moved into line … where we could see into the pool”.  Mr Lindsay’s evidence was unequivocal that the appellant went from the toilet door “straight across to the swimming pool”.  The appellant attempts to interpret the evidence that Mr Lindsay gave about “it moved into line” as referring to an area straight in front of him between the toilet block and the pool structure.  That was neither a matter that was put to Mr Lindsay in cross-examination nor a matter that was put in submission to the trial judge.  It is the appellant’s interpretation that is inconsistent with Mr Lindsay’s evidence as a whole.  Ground 14 is misconceived.
66. Ground 15 asserts the trial judge failed to give any proper weight to Mr Lindsay’s evidence of seeing the respondent running towards the toilet block, as relevant to her credit, in that she was so furious with the appellant, that she ran over a distance of some 40 metres in 42 degree heat to stop him.  This ground is in the nature of a submission on a matter of peripheral relevance, but the problem with it is that it was not a matter on which the respondent was cross-examined.  Ground 15 can be disregarded.
67. Ground 16 asserts the trial judge erred in attributing to the appellant the words the respondent said he spoke, when they did not resemble the speech pattern or phraseology of the appellant.  An oral submission was made in these terms on the hearing of the appeal.  The problem for the appellant is that he asserts that the language attributed to him by the respondent was not his, but he did not give evidence to that effect during the trial.  This ground can be disregarded.
68. Ground 17 is a catch all ground in relation to an assertion the trial judge failed to consider properly what is referred to as “character evidence” in regard to the respondent and covers the matters that were the subject of grounds 8B, 11, 15 and 16.  Nothing is added by this ground.
69. Ground 17A is the trial judge failed to give sufficient weight to the evidence of Mrs Lindsay who did not corroborate the respondent’s evidence that she had told Mrs Lindsay about being pushed by the appellant.  This argument was developed in oral submissions by the appellant in terms that Mrs Lindsay’s evidence as to what she was told by the respondent after the event did not include a statement that the respondent had been assaulted.  The respondent had, in fact, given evidence that she had asked Mr and Mrs Lindsay after the event whether they had seen the appellant push her, but Mrs Lindsay did not give evidence of a conversation in those terms.  Mrs Lindsay had acknowledged frankly that she had little or no recollection of the events in the caravan park that had occurred some two years prior to her giving evidence.  The fact that Mrs Lindsay did not confirm the respondent’s evidence in those circumstances does not amount to evidence that the respondent did not say what she said she did to Mr and Mrs Lindsay after the event.  This ground is misconceived.
70. Ground 17B is deleted in the amended outline of argument.  Although during the hearing of the appeal, the appellant indicated he was still relying on ground 17B, it has no relevance whatsoever.  It asserts the trial judge gave the appellant no credit for being prepared to call Mrs Lindsay who he describes as a witness for the defence.  That was the decision that the appellant made during the trial and it could not affect the fact finding by the trial judge on the basis of the evidence adduced in the trial.
71. Ground 18 asserts the trial judge erred in placing too much weight on the evidence of Mr Lindsay in relation to the toilet code.  The appellant was uncertain whether he was given the toilet code by Mr Lindsay.  Mr Lindsay had a clear recollection of doing so which then made sense of the respondent’s evidence that she stopped the appellant when he was trying to access the door of the toilet block (which required the entry of a code).  These were findings by the trial judge that are unremarkable, in the light of the evidence of the appellant, the respondent and Mr Lindsay.  The appellant’s argument is that the trial judge’s finding that the appellant failed to remember being given the code by Mr Lindsay was “instrumental” in the trial judge’s findings against the appellant.  That overstates the trial judge’s analysis of this aspect of the evidence.  It is a legitimate matter, however, on which the appellant can seek to base his appeal that the trial judge placed too much weight on the evidence in relation to the toilet code.

Did the trial judge err in his assessment of the credit of witnesses or his consideration of the evidence?

72. That leaves grounds 1, 7, 8B, 11, 12 and 18 to be considered on the appeal to decide whether the trial judge’s rejection of the appellant’s evidence and acceptance of the respondent’s evidence on the critical issue of whether the appellant pushed the respondent near the pool gate is amenable to appellate review.
73. Although the appellant raised a plethora of factual matters in order to point to error of the trial judge, the trial judge decided the matter on the basis of his satisfaction that the respondent’s version was much more compelling than the appellant’s version, aided by the corroboration of Mr Lindsay of the confrontation occurring at both the toilet door and the pool gate and the strong support the trial judge obtained from the demeanour of the appellant throughout the trial.
74. None of grounds 7, 8B, 11, 12 or 18 concern any matter of fact of substance on the critical issue decided by the trial judge.  Neither separately nor collectively do these grounds undermine the findings of fact made by the trial judge.  With respect to ground 1, subject to the decision on issues of fact otherwise being supported by the evidence, the weight to be given to demeanour in the fact finding process in the circumstances was a matter for the trial judge.  In the context of the evidence given in this case, where there was rational support from the evidence of Mr Lindsay’s evidence for the respondent’s version, the substantial weight given by the trial judge to the negative view he formed of the appellant based on his demeanour in the courtroom did not result in an outcome that was inconsistent with what the evidence otherwise indicated.
75. The analysis of the evidence adduced in the trial in the light of the grounds pursued by the appellant does not demonstrate that the outcome of the trial could be described in any of the categories that are used to justify appellate review referred to in Fox v Percy at [28] or [29].  The appellant has not succeeded in showing there was any error made by the trial judge in rejecting his version and accepting the respondent’s version.

Order

76. It follows that the order which should be made is:

Appeal dismissed with costs.