Employer credit for workers compensation paid of 89,193.48
72 It appears that the slightly increased figures follow from a slight delay from an original calculation. These calculations will need to be re-done.
73 As to the form of the orders, it seems to me that the following alterations should be made.
74 First, since court orders should if possible be capable of being understood without reference to the judgment, the orders should make it clear that the plaintiff's total recovery is the amount of the judgment against Dyldam.
75 Second, there should not be judgments on the two cross-claims, but merely verdicts: see Andrews v Nominal Defendant (1963) SR(NSW) 110. It may also be helpful to add a declaration to the effect that Dyldam is entitled to a contribution from Bricklaying of 25 per cent of the amount paid by it, and that Bricklaying is entitled to a contribution from Dyldam of 75 per cent of the amount paid by it.
76 Although Dyldam did not itself challenge the amount of the verdict as such, it is clear in my opinion that the verdict against Dyldam as well as that against Bricklaying should be adjusted in the way I have indicated. In addition, the notice of appeal suggests that there has already been payment of some or all of the judgments below, as restitution was sought. The precise terms of any order for restitution, if it is still sought, would need to be addressed. I propose the following orders:
(1) Dyldam's appeal dismissed with costs.
(2) Bricklaying's cross-appeal upheld in part.
(3) Each party to pay their own costs in relation to Bricklaying's cross-appeal, and the plaintiff to have a certificate under the Suitor's Fund Act in respect of his own costs.
(4) The parties to bring in Short Minutes to give further effect to this judgment.
77 BASTEN JA: I agree with the orders proposed by Hodgson JA and with his Honour's reasons. I seek to add some further remarks in relation to the challenge to the ruling of the primary judge in excluding evidence in exercise of her Honour's discretion under s 135 of the Evidence Act 1995 (NSW): see Jones v Dyldam Developments Pty Ltd [2007] NSWSC 752. The terms of s135 are set out at [44] above.
78 Section 135 has a number of features which should be identified at the outset. First, it is based on an assumption, namely that the evidence in question is otherwise admissible. Secondly, it confers a power to refuse to admit such evidence if a particular opinion is formed. Even if the power is engaged, it would seem to be discretionary, and the Court could still admit the evidence. Thirdly, the opinion involves a balancing exercise. That which is to be put into the balance on one scale is the probative value of the evidence, namely "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue": Evidence Act, Dictionary. A trial judge will frequently be asked to make rulings involving such an assessment, without being able to determine with any certainty the likely effect of the particular evidence, depending on the stage the trial has reached. In the other scale, the court must assess a "danger" that the evidence might, if admitted, have one of three classes of effect. Fourthly, the power to reject the evidence will only be engaged if the probative value is "substantially outweighed" by a danger of the kind identified in one of paragraphs (a), (b) or (c).
79 A challenge to a ruling under s 135 may be directed either to the formation of the relevant opinion or to the exercise of the discretionary power, once engaged. Although the distinction is frequently elided, there is a difference in principle between assessing a challenge to an inference drawn by a trial judge from primary facts (including an inference involving an evaluative judgment), as in Warren v Coombes (1979) 142 CLR 531, and the exercise of a discretionary power, which is subject to review on the grounds set out in House v The King (1936) 55 CLR 499 at 505.
80 In CDJ v VAJ [1998] HCA 67 and 76; 197 CLR 172, McHugh, Gummow and Callinan JJ described ss 135 and 136 of the Evidence Act 1995 (Cth) as "conferring a very wide discretion upon trial judges": at footnote (106). Their Honours saw the introduction of these sections as a deliberate departure from the common law rules governing civil trials. Section 137, by contrast, may be seen as reflecting the established general law principle with respect to criminal trials and the exclusion of unfairly prejudicial evidence: see Driscoll v The Queen (1977) 137 CLR 517 at 541 (Gibbs J).
81 Despite the differing scope and operation of the sections, it was suggested in Ainsworth v Burden [2005] NSWCA 174 that each of the phrases "unfairly prejudicial" and "unfair prejudice" in ss 135, 136 and 137 must be given the same meaning: at [99] (Hunt AJA, Handley and McColl JJA agreeing). It is not necessary to explore the correctness of that dictum in the present case: it is, however, necessary to consider whether the kind of prejudice relied on in the present case falls within the scope of s 135.
82 A significant issue in the present case arose from the plaintiff's evidence that the accident was caused by unevenness of the ground resulting from the use of a bobcat in the area. The evidence sought to be adduced by the appellant supported a conclusion that no bobcat had operated in the area on the relevant day. As explained by Hodgson JA, the evidence included both the documentary record of the appellant and the evidence of Mr Fayad which was necessary in order to understand the record. It was not suggested that the trial judge would not be able to deal with this evidence appropriately, but that it would be procedurally unfair to expect the plaintiff to deal with it effectively in the circumstances in which it was produced in the course of the trial. The first question was therefore whether such unfairness could fall within the scope of the section, an issue about which it has been said that conflicting views have been expressed: see Ainsworth v Burden [2005] NSWCA 174 at [105] (Hunt AJA, Handley and McColl JJA agreeing).
83 A danger of unfair prejudice may arise if "the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case": Australian Law Reform Commission, Evidence, Report No. 26 (Interim) (1985), vol 1, par 644. Further, referring to factors now found in paragraphs (b) and (c) of s 135, the Commission noted "the risk of the court being misled (eg by incorrectly assessing the weight of the evidence) and the risk of confusion and of undue wastage of time".
84 This discussion is to be found under the heading "Relevance", from which it may be inferred that s 135 was designed to allow a court to avoid foreseen difficulties with a rule that relevant evidence is admissible where the definition of relevance required only "a minimal logical connection between the evidence and the 'fact in issue'": par 641.
85 If the concept of unfair prejudice is read in the restrictive sense suggested by the Commission at par 644, it is unlikely to have a significant operation in cases where there is no jury. The same may be said in relation to evidence which might be "misleading or confusing" within the terms of paragraph (b). The same could not necessarily be said of evidence which might cause wastage of time, for the purpose of paragraph (c). In Papakosmas v The Queen [1999] HCA 37; 196 CLR 297, a case involving the possible exercise of the Court's discretion to limit the use of particular evidence under s 136, but not in terms concerned with s 135, McHugh J cast some doubt upon suggestions that unfair prejudice might extend to cover "procedural disadvantages which a party may suffer as the result of admitting evidence under the provisions of the Act": at [93], referring to Einstein, "'Reining in the Judges'? - An examination of the discretions conferred by the Evidence Act 1995", 19 UNSWLJ 268 at 273-274. His Honour also suggested, at [93], that the course taken by this Court in Commonwealth of Australia v McLean (1996) 41 NSWLR 389 at 402 (Handley and Beazley JJA, Santow AJA agreeing) was to "exclude hearsay evidence otherwise admitted via the exception contained in s 64". Although in McLean their Honours suggested that such a course might have been adopted, it was not the conclusion reached.
86 In Ordukaya v Hicks [2000] NSWCA 180 this Court considered a decision of Cooper DCJ who had declined to exclude hearsay on the basis that it was unfairly prejudicial to the other party, who was denied the opportunity to cross-examine because:
"To my mind that is not what is meant by unfairly prejudicial in the context of s 135 of the Act. What is meant in context of the Act is unfairness in the obtaining of the evidence, that is, in the circumstances under which the evidence was procured."
87 Mason P concluded that that approach was too narrow and preferred the view expressed in an earlier edition of Odgers, Uniform Evidence Law (3rd ed, 1998) at p 443, set out at [6]:
"On the other hand the provision is not limited to misuse of the evidence by the tribunal of fact. Unfair prejudice may arise from procedural considerations. Thus an opposing party may be significantly prejudiced by hearsay evidence if unable to cross-examine on a crucial issue in the litigation. Alternatively, the opposing party may be unfairly prejudiced by evidence if prevented from properly challenging its reliability."
88 Sheller JA (with whom Meagher JA agreed) was not satisfied that Cooper DCJ erred in his approach, but nevertheless considered whether the absence of the maker of a hearsay statement could result in the exclusion of evidence under s 135 and stated at [39]:
"It is not necessary in this case to decide whether it ever could or whether it is confined to situations, like those in the cases to which I have referred, where the statement has been obtained by unfair means or has a tendency wrongly to excite the fact finder's emotions and is of little probative value."
89 A similarly cautious approach to the rejection of hearsay evidence on the basis of unfair prejudice is to be found in Clark [2001] NSWCCA 494; 123 A Crim R 506 at [165] (Heydon JA, Bell J agreeing). In other cases, the inability to cross-examine has been treated as a relevant, though not necessarily a decisive issue in the exercise of the discretion under s 135: see R v Suteski [2002] NSWCCA 509; 56 NSWLR 182 at [126] (Woods CJ at CL, Sully and Howie JJ agreeing) and Bakerland Pty Ltd v Coleridge [2002] NSWCA 30 at [55] (Giles JA, Heydon JA and Grove J agreeing).
90 With respect, I do not read the cases referred to in Ainsworth as demonstrating any clear conflict of principle. The area in which differences of approach may be perceived concerns the inability of a party to cross-examine the maker of a statement where he or she is not called and the evidence is given by way of hearsay. On one view, such circumstances may properly provide a basis for rejection of such evidence if its admission would give rise to "unfair prejudice"; on another view, the rejection of the proffered evidence may involve the courts reintroducing the rule excluding hearsay evidence which was explicitly repealed by the Evidence Act. However, this case is not one in which the rejection of the evidence under s 135 could be seen as a backdoor means of applying a common law exclusionary rule which had been reversed by statute. There is no principled basis for effectively restricting the operation of paragraphs of (a) and (b) of s 135 to jury trials. Nor would such an approach be consistent with that adopted by this Court in Ordukaya.
91 It is, therefore, appropriate to treat s 135 as engaging the power to reject admissible evidence in circumstances where the admission might satisfy any one of the three classes of danger set out in the section. Such an approach was adopted in circumstances not dissimilar to the present in Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd [2007] FCA 1509 by Gilmour J at [161]. In addressing a photograph sought to be tendered by the respondents, his Honour considered that prejudice arose "from the failure of the respondents to provide this evidence prior to the hearing or even to adduce it in chief, so as to enable it to be properly considered and responded to by the applicants". His Honour also noted that the photograph was not clear in its depiction of a key factor and that, had it been admitted, he would have placed no weight upon it.
92 Further support for this approach derives from a consideration of the practical circumstances of a trial. Where evidence is produced, as in the present case, on the third day of a trial, in circumstances where it should have been produced in response to a subpoena well before the trial, the party seeking to tender it may well accept, as occurred in the present case, that the plaintiff would be entitled to an adjournment and an opportunity to consider and respond to the material. (Indeed, senior counsel for the appellant was at pains to point out that his client had not merely accepted the need for an adjournment, but had offered to bear the cost consequences and any other conditions which might reasonably be imposed.) The trial judge was in effect invited to rule upon an adjournment application not made by the appellant, but caused by the appellant's conduct. If questions of fairness and prejudice would justify the refusal of an adjournment application if made by the appellant, it would be curious if they did not also permit the refusal of the evidence.
93 As noted above, the trial judge sought to base her decision "principally on s 135(c)": [2007] NSWSC 752 at [27] set out at [44] above. This approach may lead to a question as to how an undue waste of time may be said to outweigh substantially the probative value of the evidence. Read in the context explained by the Law Reform Commission, the apparent purpose of this provision is to allow a trial judge to avoid an inappropriate expansion of the trial caused by the parties tendering, and then seeking to meet, evidence of slight or peripheral relevance to the facts in issue. Once it is accepted that the probative value of the proffered evidence is significant or substantial, there may be limited scope for exclusion on the basis of a danger of "undue waste of time". One case in which paragraph (c) may properly be invoked despite the potential significance of the proffered evidence is where the real probative value of the evidence is not able to be adequately addressed without further investigation. These circumstances, which existed in the present case, suggest that both paragraphs (a) and (c) were available as a basis for engaging the discretionary power.
94 Once it is accepted that there was power to reject the evidence absent an adjournment, the appropriateness of an adjournment and the extent to which a costs order might reduce the element of prejudice become significant factors. Whether these factors were relevant to the danger of prejudice or undue waste of time, or whether they were better dealt with as part of the Court's discretion once the power was engaged, was not addressed on this appeal. That was in part, no doubt, due to a recognition that once it was established that the relevant danger substantially outweighed the probative value of the evidence, it would be difficult for the appellant to challenge the exercise of discretion. Although the discretionary power is engaged, it may nevertheless be open to the Court to admit the evidence, for example because the party resisting admission has failed to take reasonable steps itself to avoid the prejudice. In the present case, however, it was the party seeking to tender the evidence which had been derelict in compliance with its obligations in response to a subpoena and subsequent inquiries from the plaintiff's solicitors.
95 In any event these factors were addressed by the trial judge. In the circumstances, I am not satisfied that her Honour's exercise of the discretion miscarried, for the reasons set out above and those given by Hodgson JA.
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