Fogg v Kane Constructions

Judgment 1JOHNSON J: On the morning of the seventh day of a hearing which commenced in August 2013, senior counsel for the Plaintiff informed the Court that there had been a development in the case. The development was that a witness not available at the hearing in August 2013, had been located and the Plaintiff wished to call him. The witness is Robert Jason Cady. 2Mr Cady was the offsider in a vehicle driven by the Plaintiff in Kiama on 13 October 2008, in circumstances where the Plaintiff fell at a work site at the Kiama Showground. I say no more about the circumstances of the incident itself in this judgment. 3The hearing commenced before me, with a five-day estimate, in August 2013. It became quickly apparent that the matter was not, in truth, ready to proceed. Experts had not met in conclave and the hearing proceeded until 13 August 2013, at which time I adjourned it. 4The Plaintiff has closed his case on factual matters. There were remaining expert witnesses on liability, and in the areas of orthopaedic and psychiatric medicine, as well as occupational therapists. Two of the Defendants had opened their cases and called witnesses on liability. 5Directions were given for case management. The matter came before me on 18 October 2013, at which time the Court was informed of remaining steps to be taken. Thereafter, a hearing date was fixed for today, 3 February 2014, to continue for four days this week. 6On the evidence before the Court on this application, on 1 October 2013 Mr Wells, the solicitor for the Plaintiff, met with Mr Cady at Albion Park. Clearly by that stage, Mr Cady had been located. On 10 October 2013, the Plaintiff's solicitors caused a subpoena to issue for Mr Cady to give evidence, returnable today. 7Thereafter, on the evidence, there were attempts for Mr Wells to speak to Mr Cady, or vice versa, with one party or the other cancelling arrangements because of other commitments or unavailability. As a result, no statement was taken from Mr Cady. 8On 30 January 2014, last Thursday, a view was undertaken by senior counsel for the Plaintiff with Mr Wells and Mr Cady at the site at Kiama Showground. 9The Court has been informed that today the Plaintiff's representatives, for the first time, informed the Defendants' representatives firstly that Mr Cady had been found and, secondly, that he was to be called. Even at that point this morning, no statement of Mr Cady was in existence. It was only prepared today as a result of the proceedings being adjourned for a period. 10In the end, a contested application has proceeded, by way of Notice of Motion, in which the Plaintiff seeks leave to reopen his case to call the evidence of Mr Cady, and to serve and rely upon his evidentiary statement dated today. 11That application is opposed by each of the Defendants. Mr Polin, counsel for Hutchison Construction Services Pty Limited, has available today two witnesses who were to give evidence on the facts, namely Messrs Brownlee and Leighton. The liability experts are scheduled to give concurrent evidence at 10.00 am tomorrow. Experts in other areas are scheduled to give evidence between tomorrow and Thursday. The arrangement is that the hearing of the evidence will be completed, and then there will be an adjournment to permit preparation of written submissions. It is thus not expected that the hearing proper would end this week, but certainly that the evidence would be adduced in its entirety. 12On the face of it, it is somewhat extraordinary that this state of affairs has come about. Quite apart from the obligations under the Civil Procedure Act 2005, common sense would suggest that once Mr Cady had been located, there ought to have been something said about that in Court on 18 October 2013. As at that date, it was clear, given the evidence of Mr Wells in August 2013, that the absence of Mr Cady (and any explanation for it) was to be an issue addressed in submissions. Accordingly, it is difficult to understand how the solicitors for the Plaintiff failed to reveal to counsel appearing for their client on 18 October 2013 that Mr Cady had been in contact. 13That state of affairs is compounded by the inaction thereafter. This was a part-heard proceeding in the Supreme Court. It had run for six days. It was listed for a number of additional days. The Plaintiff, as I understand the claim, has quantified his claim as being one in excess of $3 million. How it could be that a person in the position of Mr Cady was effectively not met and interviewed with a statement being taken, urgently, is difficult to understand. 14The obligation of the Court is to consider relevant case-management principles and, in particular, those in s.56 and following of the Civil Procedure Act 2005. The Court must seek to act in accordance with the dictates of justice. 15Section 58(2) Civil Procedure Act 2005 recites a number of matters, nearly all of which, in my view, operate strongly against the Plaintiff on this application. The solicitors for the Plaintiff have not been prosecuting these proceedings with appropriate diligence on this issue since October 2013. If the sole consideration was one of case management, non-compliance with orders and lack of diligence, then the result of this application would be clear and adverse to the Plaintiff. 16The Court must, however, also give consideration to the degree of injustice that would be suffered in this case by the Plaintiff, if the Court did not allow the evidence of Mr Cady to be given. 17There is controversy concerning aspects of what happened at the Kiama Showground work site on 13 October 2008. Mr Cady's evidence is capable of bearing in significant respects on that issue. No doubt, for that reason, Mr Wells gave evidence concerning efforts to find Mr Cady at the hearing in August 2013. 18Mr Polin's client has not yet called its liability witnesses, Mr Leighton and Mr Brownlee. If that had happened, that would have been a further factor operating against the Plaintiff, but it has not. 19A number of concerns have been raised about the impact upon the timetabling of the hearing this week if Mr Cady's evidence is allowed. One of the liability experts is available, but not on Wednesday and Thursday. It is my expectation, if the evidence of Mr Cady is allowed, that steps will be taken with respect to the hearing to ensure that the liability experts give their evidence tomorrow. 20Mr Marshall SC, for the Plaintiff, has frankly acknowledged that there are powers which the Court may exercise to protect the Defendants, in a pecuniary sense, if this application is allowed. I should make it clear that the costs consequences of the events of today, and the inaction on the Plaintiff's side of recent times, will be something to be visited again in the future. 21However, I am not satisfied that the dictates of justice operate to shut out the calling of Mr Cady by the Plaintiff. 22Insofar as the Notice of Motion seeks leave to reopen the Plaintiff's case, I am satisfied that the balance of the hearing may be fashioned to meet any concerns that would arise in that respect. 23The next forensic step in this hearing ought be the calling of Mr Cady. Whether that can happen fairly this afternoon remains to be seen. 24I make orders in accordance with the Notice of Motion dated 3 February 2014 filed by the Plaintiff. 25Accordingly, the Plaintiff is granted leave to reopen his case to call the evidence of Mr Cady. The Plaintiff is granted leave to serve and rely on the evidentiary statement of Mr Cady dated 3 February 2014 (a copy of which is MFI 24). 26I reserve the question of costs of this application, on the clear basis that that question will be revisited in the balance of the hearing of these proceedings.