CVETKOVIC & ANOR v PAREXEL INTERNATIONAL PTY LIMITED & ANOR [2007] NSWSC 540 | Case summary

Supreme Court of NSW|2007-05-30|Before: Hall J

The application to recall Dr Peterson 61 Although the application in this respect does not seek leave to re-open the plaintiff's case, I will treat the application as one that does seek such leave as well as an order requiring Dr Peterson to return for further cross-examination. 62 The notice of motion seeks the order for the recall of the witness, notwithstanding the plaintiffs' actions in voluntarily withdrawing from the hearing. Dr Peterson retired after the plaintiffs left the courtroom (transcript, 25 August 2006, at 727). 63 In considering the application in this respect, it is relevant to have regard to the nature of the issues in the proceedings, to the affidavit evidence of Dr Peterson, which was filed and read in the proceedings and to the question of relevance. In that respect, I agree with the submission that has been made on behalf of the defendants, that a great deal of time was spent in cross-examining Dr Peterson on matters or issues that were of little and often of no relevance whatsoever to any fact in issue between the parties. 64 In order to support the application, it is necessary for the plaintiffs to identify a basis or ground upon which the power should be exercised. In this respect, it is to be noted that, as stated in the submissions for the defendants, the decision to withdraw from the hearing of the proceedings was one taken by the plaintiffs voluntarily and in full knowledge that, if they did so, the proceedings would continue in their absence, which is what occurred. 65 The defendants have submitted that the plaintiffs' conduct in refusing to accept the Court's ruling, for example, on the question of estoppel and their failure to obtain a further three days to cross-examine Dr Peterson is consistent with what the defendants maintain in respect of the substantive issues, namely, that whenever the plaintiffs could not get their way, they walked out on the former employers, the defendants. I do not, however, consider that I need to evaluate the submission for the purpose of this application. 66 Absent proper cause, conduct by a party by way of abandoning a hearing by leaving the courtroom during the cross-examination of a witness will usually preclude that party from subsequently applying for an order requiring the witness to return and to be subject to prolonged further cross-examination. 67 The overriding power of the Court is to conduct the proceedings both fairly and efficiently. By s.58 of the Civil Procedure Act 2005, the Court, in making any order of a procedural nature must seek to act in accordance with the dictates of justice. For the purpose of determining what are the dictates of justice in a particular case, it is necessary to have regard to the provisions of ss.56 and 57 of the Act and the extent to which the respective parties have fulfilled their duties under s.56(3). See in that respect, s.56(2). 68 Section 56 provides that the overriding purpose of the Act and the Rules of Court, in their application to civil proceedings, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 69 By s.56(3), it is provided:- "A party to civil proceedings is under a duty to assist the Court to further the overriding purpose and, to that effect, to participate in the process of the Court and to comply with directions and orders of the Court." 70 The issues in the present proceedings are quite narrow, it being the fact that the employment with the defendants was, in each case, of limited duration. In considering the application for the recall of Dr Peterson, it is necessary to have regard to the nature and the range of factual issues between the plaintiffs and the second defendant. 71 Dr Peterson swore two affidavits which were read in the proceedings being the affidavits sworn by her on 2 August 2004 and 25 October 2004. Dr Peterson was called to give evidence on 24 August 2006 and, as noted earlier, the transcript of her evidence commences at p.655. There was only very short supplementary evidence adduced from Dr Peterson recorded on pp.655 to 657 of the transcript. 72 Dr Peterson commenced her evidence at 10.30 am on 24 August 2006. The cross-examination continued throughout that day. At transcript p.712, I inquired of the first plaintiff as to how much longer he would be in cross-examination. He stated that it was difficult to estimate but that his estimate was 8 to 12 hours. The second plaintiff indicated that she would not require much more time than that. Dr Peterson was stood down on 24 August 2006 (p.713). 73 The central issues raised in Dr Peterson's affidavits, as between the plaintiff and the second defendant, may be summarised as follows:-

(a) The second plaintiff's appointment and subsequent promotions.

(b) The second plaintiff's approach to Dr Peterson in October/ November 1998 requesting that her husband (the first plaintiff) might be considered for the position of CRA.

(c) The initial interview with the first plaintiff undertaken by Ms Duff and his subsequent interview with Dr Peterson in the first week of November 1998.

(d) The nature of the first plaintiff's probationary (three month) employment contract.

(e) Discussions between Ms Duff and Dr Peterson concerning Ms Duff's concern that the first plaintiff was not following her directions.

(f) Report backs by Ms Duff to Dr Peterson concerning the first plaintiff's performance.

(g) A meeting held in mid-December 1998 with the first plaintiff, Ms Duff and Dr Peterson in which the first plaintiff raised a complaint about having to have his correspondence checked by Ms Duff.

(h) Dr Peterson's denial that Ms Duff's request to supervise the first plaintiff's employment was related to his ability to speak English.

(i) The receipt of the letter on 14 December 1998 in which the first plaintiff resigned his employment.

(j) The subsequent contract work offered to the first plaintiff on 14 January 1999. 74 In relation to the second plaintiff, Dr Peterson gave evidence in relation to the following:-

(a) The second plaintiff's approach to her requesting an advance of two months salary by reason of a proposal by the plaintiffs to purchase a house.

(b) Discussions concerning the impact of moving out of Sydney would have on the second plaintiff's employment.

(d) Discussions in mid-1999 concerning the hourly pay rate for the first plaintiff.

(e) Discussions on or about 20 July 1999 concerning difficulties with the second plaintiff working remotely from her home.

(f) The receipt of the second plaintiff's letter of resignation dated 17 August 1999. 75 The plaintiffs' "joint" affidavit does not in terms seek to explain why they withdrew from the hearing. The affidavit does, however, refer to matters going to their general ability to conduct the proceedings. In this respect, there is reference to physical and mental health issues which they say have affected them and the general strain of the proceedings. 76 In proceedings involving unrepresented parties, the Court endeavours, within recognised limits, to conduct proceedings so as to make appropriate allowance for the disadvantages that face an unrepresented party. The Court also, of course, seeks to balance such considerations against inconvenience and any unfair impact that such allowance may have on the other party or parties to the proceedings. 77 Accordingly, I have given what I consider to be the appropriate weight to the matters that the plaintiffs have raised in their affidavit sworn on 18 September 2006 in determining whether they should be permitted the opportunity to have Dr Peterson recalled for further cross-examination. 78 I have also taken into account both the inconvenience that would result to Dr Peterson and to the defendants in her returning for further cross-examination and the implications as to additional costs arising should I permit further cross-examination of her. 79 Whilst the decision of the plaintiffs to abandon the hearing on 24 August 2006 may be properly characterised as a voluntary act, I am of the opinion that, in a case involving unrepresented litigants, a Court, generally speaking, will hesitate to conclude that any such voluntary act necessarily creates an irredeemable situation. In the present proceedings, the plaintiffs have put forward some matters in their "joint" affidavit to which I have referred and in their written submissions which, in effect, seek to explain what they assert were circumstances of stress and difficulty experienced during the course of the cross-examination of Dr Peterson before they withdrew. 80 In the present case, notwithstanding the plaintiff's voluntary decision to abandon the hearing, I consider that the overall requirements of justice in the particular circumstances of the case would require that the plaintiffs be permitted the opportunity to continue, within reasonable limits, the cross-examination of Dr Peterson. 81 In coming to this decision, I have regard both to the claimed disadvantage and stress in preparing and conducting the cross-examination as claimed by the plaintiffs and to the fact that Dr Peterson is a significant witness in relation to the action brought by the plaintiffs against the second defendant. To deny them the opportunity of further cross-examining her is a significant matter that should, absent incurable prejudice to the other party or parties, be avoided wherever possible: see, in this respect, Marshall v Wallerawang Collieries [1999] NSWSC 937 per Wood CJ at CL where a similar approach was adopted in determining the application by the plaintiff to re-open. The defendants have not sought to argue that irremediable prejudice or disadvantage would result from permitting the plaintiffs the further opportunity they seek. 82 Accordingly, I propose to grant the application made by the plaintiffs to re-open their respective cases and to have Dr Peterson recalled for cross-examination. I indicate, however, that there will need to be an assessment made as to the reasonable requirements in terms of additional time required for the conduct of such cross-examination. 83 The application for further discovery from the defendants is unsupported by any material which would indicate a basis or requirement for the plaintiffs to require discovery from the defendants at this point in the hearing. The application is, accordingly, refused. 84 The application by the plaintiffs to file further affidavits and call additional witnesses is unsupported by any material which would enable the application to be determined. The application, in that respects, is accordingly stood over with leave to the plaintiffs to apply.

Orders and directions 85 In relation to the notice of motion dated 18 September 2006 filed by the plaintiff I make the following orders and directions:-

(a) The application to "re-open" to set aside or vary the judgment entered on 24 August 2006 as sought in paragraph 1(a) of the notice of motion is dismissed.

(b) A date for the plaintiffs to lodge their final written submissions be determined at the conclusion of evidence.

(c) The application to adjourn proceedings for nine months to be stood over for further consideration at the conclusion of the evidence.

(d) The application for further discovery from the defendants is refused.

(e) The application that the plaintiffs be permitted to file further affidavits and call additional witnesses be stood over to the directions hearing referred to below.

(f) The application to re-open the plaintiffs' case for the purpose of recalling Dr Peterson for cross-examination is granted, subject to any conditions and directions which the Court may determine in respect of such cross-examination.

(g) Costs of the application be costs in the proceedings. 86 I re-list the proceedings for mention and directions before me at 9.30 am on Tuesday 5 June 2007

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Trade Practices Act 1974(Cth)

CITATION : CVETKOVIC & ANOR v PAREXEL INTERNATIONAL PTY LIMITED & ANOR [2007] NSWSC 540

Maritime Union of Australia v Geraldton Port Authority (2001) 111 FCR 434 Wentworth v Woollahra Municipal Council (1981-1982) 149 CLR 672 CASES CITED : Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300 Reisner v Bratt [2004] NSWCA 22 King v The Queen [2003] HCA 4

CVETKOVIC & ANOR v PAREXEL INTERNATIONAL PTY LIMITED & ANOR

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