Dixon v Cargill Meat Processors Pty Limited & Ors

Mr RV Letherbarrow SC with Mr DM Wilson - Plaintiff COUNSEL : Mr GM Watson SC - First and Second Defendants in 020245/08 Mr P Perry, counsel - Defendant in 020252/08 Mr N Polin, counsel - Third Defendant in 020245/08

Stacks - Plaintiff SOLICITORS : Henry Davis York - First and Second Defendants in 020245/08 Moray & Agnew - Third Defendant in 020245/08 Kemp & Co - Defendant in 020252/08

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

020245/08 STEPHEN JOHN DIXON -V- CARGILL MEAT PROCESSORS PTY LIMITED AND ORS

020252/08 STEPHEN JOHN DIXON -V- ECOWIZE SOUTH PTY LIMITED

REASONS 1 HER HONOUR: At yesterday's hearing, I granted the plaintiff's adjournment application, with an order for costs thrown away in favour of the other parties. These are the reasons for those orders. 2 Having been joined on Tuesday as a defendant in the proceedings, Ecowize Specialised Hygiene Services Pty Ltd pressed for an adjournment of the hearing, given its need to consider the claims which the plaintiff wished to advance against it and the evidence on which the plaintiff wished to rely, particularly expert evidence which had not been served upon it until Monday, the first day of the hearing. While there was a debate as to who had had responsibility for serving the plaintiff's evidence on Ecowize Specialised Hygiene Services Pty Ltd, the situation in which it was placed, having to confront a claim made by the plaintiff on newly amended terms as a defendant, was, of course, the consequence of the leave which the plaintiff had been granted, to join Ecowize Specialised Hygiene Services Pty Ltd. The adjournment was not opposed by the plaintiff, but was opposed by the other parties. All parties sought an order for costs against the plaintiff, which he opposed. 3 The hearing of those applications adjourned overnight, by consent, Ecowize Specialised Hygiene Services Pty Ltd having located an expert, who could advise it, in an attempt to permit the hearing to proceed yesterday without further adjournment. 4 The situation the next morning was that Ecowize Specialised Hygiene Services Pty Ltd no longer pressed for an adjournment, but the plaintiff did. Ecowize Specialised Hygiene Services Pty Ltd would not agree to proceed on the basis of an understanding that it would not later call expert evidence. It proposed instead, a course whereby the plaintiff would run his case and it would later be heard as to the admissibility of expert evidence which the plaintiff wished to rely on and if that application failed, that it would then be given the opportunity to call expert evidence of its own. 5 The plaintiff objected to that course, as not being a fair one in the circumstances. These difficulties were compounded by the emergence of various documents from Ecowize Specialised Hygiene Services Pty Ltd this morning. They had emerged during the intervening consideration of its position, counsel understanding that they were documents which had been produced to the other parties. The plaintiff's legal representatives did not know of the existence of the documents, until passing reference was made to them just before the commencement of the proceedings. The plaintiff complained that the documents were important to the issues lying between the parties and ought to have been produced in answer to summonses earlier issued. The documents had to be considered by the plaintiff's expert and, on the face of the documents, it was also apparent that there had still not been a proper answer to the summonses - that the documents for the relevant period had not been produced. 6 The other parties still opposed the adjournment, submitting that the difficulties were not of the magnitude the plaintiff complained and could be managed in the course of the trial. 7 I came to the conclusion that the circumstances required that there be an adjournment, in order that the underpinning purposes of the Civil Procedure Act 2005, the just, quick and cheap resolution of the real issues in the proceedings could be achieved, having in mind also the requirements of s 57 and s 58 of the Act. 8 While undoubtedly efforts had been made to find a way for the hearing to proceed on a basis fair to all of the parties, the late joinder of Ecowize Specialised Hygiene Services Pty Ltd and the course it proposed, created a situation where there was a real possibility of a later adjournment of the proceedings being necessary and the plaintiff's case having to proceed in the meantime, without he being given an understanding of the expert case which Ecowize Specialised Hygiene Services Pty Ltd would rely on, if its objections to the plaintiff's expert evidence were not established. Given that any expert evidence which the plaintiff or other parties might wish to call in reply, would have to pay attention to the evidence of the plaintiff and other witnesses who could give direct evidence of the plaintiff's work, injuries and operation of the cleaning systems at the abattoir, the problems with this course were patent. 9 An adjournment at that stage, rather than later, in my view was most likely to achieve a just, quick and cheap resolution of the real issues in the case. In coming to that conclusion, I also took account of the difficulties which had emerged in relation to the documents produced late. When the adjournment application was pressed, the plaintiff's legal representatives had not even had an opportunity to read them and it seemed as if the production of relevant documents was still not complete. In the circumstances, I was not able to conclude that this was not material which needed to be put to the plaintiff's expert, or that this development would not lead to an application to call further evidence from the experts. 10 The fact that none of the parties had complied with the Court's standard directions, which required them to file various documents before trial, including documents which identified what issues in truth lay between them, reinforced the conclusion which I reached. Had that been attended to, it seemed to me that some of the difficulties which had to be dealt with at the commencement of the trial would have been avoided. The absence of those documents, given the circumstances in which the adjournment application came forward, but provided a further basis for the conclusion that it had to be granted, if a just quick and cheap resolution of the real issues in the case was to be achieved. There was a real possibility then, it appeared, that further issues might emerge, or even that some existing issues might be resolved. 11 It was for those reasons that I concluded that the adjournment application had to be granted, with the usual order as to costs thrown away being made against the plaintiff. While it was argued earlier that the circumstances were such that the plaintiff was not truly the architect of this situation and that the circumstances would warrant a departure from the usual rule, that argument largely fell away, in light of yesterday's developments, when it was the plaintiff alone pressing for an adjournment. 12 The consequence of the plaintiff's joinder of a new defendant, Ecowize Specialised Hygiene Services Pty Ltd, albeit already a defendant to a cross claim brought by the first defendant, Cargill Meat Processors Pty Ltd, has been additional costs incurred by other parties, through no fault of their own. 13 The evidence as to how it was that there came to be such a late joinder application was not such that the other parties may in fairness be deprived of their costs. The evidence led on the question of costs only reinforced the view which I had earlier reached in relation to the joinder application, namely that the failure to earlier join Ecowize Specialised Hygiene Services Pty Ltd as a defendant, had resulted from representative error. The need for joinder ought to have been appreciated last August. Nor can it be accepted that the fault for the failure to serve the plaintiff's evidence on Ecowize Specialised Hygiene Services Pty Ltd, lay with any party other than the plaintiff, given the provisions of the Uniform Civil Procedure Rules, to which attention was drawn.

14 In those circumstances, a costs order is what the plaintiff must bear for his successful joinder and adjournment applications. The difficulties which emerged in relation to the documents produced today, provided another good reason for the adjournment, but it would have been sought, even without that development, so can have no consequence for the costs of the adjournment. 15 It was for those reasons that I ordered that the plaintiff must bear the other parties' costs thrown away as a result of the adjournment. 16 I finally note that consent directions were given before the adjournment which dealt with what is required to be done, to ensure that the matter proceeds when it is next listed for hearing. The parties have agreed to a mediation, arranged for Friday next. In the circumstances of this case, it is a real pity that this step was not agreed and pursued before the matter was listed for hearing.

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