Gaskin v Ollerenshaw

Civil Procedure Act 2005 s 56 LEGISLATION CITED : Evidence Act 1995 s 192 Uniform Civil Procedure Rules 2005 rr 2.1, 29.5

Australian Securities and Investments Commission v Rich & Ors [2006] NSWSC 826; 235 ALR 587 Smith v NSW Bar Association (No 2) (1992) 176 CLR 256 CASES CITED : Tszyu v Fightvision Pty Ltd (1998) 47 NSWLR 473 Urban Transit Authority v Nweiser (1982) 28 NSWLR 471 VAW (Kurri Kurri) Pty Ltd v Scientific Committee (2003) 58 NSWLR 631 Wilkinson v Daly [2004] NSWCA 331

PARTIES : Leslie Gaskin (P) Matthew Ollerenshaw (D)

COUNSEL : M Maxwell and M Gilbert (P) R A Cavanagh (D)

SOLICITORS : Brydens Law Office (P) Henry Davis York (D)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT - On application to reopen the plaintiff's case 1 HIS HONOUR: By notice of motion dated 7 July 2010 the plaintiff seeks leave to reopen his case for the purpose of adducing further evidence from Katharine Whiteley and for some consequential orders. The plaintiff accepts that he should pay the costs of the motion. 2 The defendant opposes the application.

Present stage of the proceedings 3 The evidence and submissions in the proceedings concluded on 21 June 2010 after four days of hearing. 4 In the course of the taking of evidence the plaintiff called Mrs Katharine Whiteley who is the principal of Non Stop Conveyancing, to give evidence in his case in reply. The defendant objected to Mrs Whiteley giving evidence in reply, submitting that her evidence ought to have been called in chief. I ruled against that objection. 5 After Mrs Whiteley's evidence was concluded counsel addressed and judgment was reserved. 6 On 2 July 2010, the plaintiff's junior counsel contacted my chambers indicating that he wished to seek the leave of the court to reopen the proceedings. 7 On that day, in chambers, I made directions which would enable a hearing of the motion and the taking of evidence, if the motion were granted, on Friday, 16 July 2010.

The motion to reopen 8 In support of the motion to reopen the proceedings, the plaintiff read two affidavits. 9 The first affidavit, that of Mr Robert Bryden, the solicitor for the plaintiff, explains that in the course of preparation of the proceedings a decision was made on 1 June 2010 to subpoena Mrs Whiteley to give evidence. Consequent upon that decision, Mr Bryden deposes to a conversation between Mrs Whiteley and a member of his staff on 10 June 2010, in which Mrs Whiteley stated that she had no specific recollection of the conveyance in question. I note that despite this conversation, she was interviewed by counsel for the plaintiff at court, and she was called as a witness. 10 The second affidavit in support of the motion to reopen is that sworn by Mrs Whiteley. Amongst other things she deposes to a telephone conversation with Mr Mark Gilbert, junior counsel for the plaintiff, on or about 10 June 2010 in which she informed Mr Gilbert that she had no specific recollection of the conveyance in question. She deposes to the fact that having given evidence on 21 June 2010, which was the fourth day of the hearing, when speaking with Mr Gilbert a couple of days later, she came to recollect a telephone conversation which she said she had with the defendant at some point in time prior to 9 January 2003, and probably before 13 December 2002. 11 Her affidavit then sets out the terms of the conversation which she says she now recalls she had with the defendant. 12 The defendant, whilst opposing the motion and the relief sought, did not read or tender any evidence.

Applicable rules 13 The Uniform Civil Procedure Rules 2005 ("UCPR") do not contain a specific provision which deals with the reopening of one party's case. The rules do, however, confer upon the court a general discretion as to the conduct of the proceedings. Rule 2.1 provides that "The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient … for the just, quick and cheap disposal of the proceedings." 14 Rule 29.5 of the UCPR provides that: "The court may give directions as to the order of evidence and addresses and generally as to the conduct of the trial." 15 I am satisfied that the court has the power derived from the UCPR, should it be appropriate so to do, to permit the plaintiff to reopen the proceedings and adduce the additional evidence of Mrs Whiteley. 16 Although the plaintiff submitted that the provisions of s192 of the Evidence Act 1995 were applicable and that the court must have regard to the elements identified in s192(2), in my opinion, the section is inapplicable to this application. 17 In applying these rules and in exercising a power given to it by the rules, the court is obliged to give effect to the overriding purpose of the Civil Procedure Act 2005 ("CPA") and the UCPR, namely, to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(1) and (2) of the CPA. 18 The power to grant leave to a party to reopen the proceedings is a discretionary one.

Applicable legal principles 19 The High Court of Australia has held that in considering whether a case should be reopened before judgment is delivered, it is relevant to consider whether there was a deliberate decision made not to call the evidence during the trial. If such a decision was not made, the primary consideration should be whether the reopening of the case would cause embarrassment or prejudice to the other side: Smith v NSW Bar Association (No 2) (1992) 176 CLR 256 at 266 - 267 per Brennan, Dawson, Toohey and Gaudron JJ. 20 The particular considerations referred to by the High Court of Australia in Smith are part of the overall question of whether it is in the interests of justice to grant the application and permit the additional evidence: see Urban Transit Authority v Nweiser (1982) 28 NSWLR 471 at 478; Tszyu v Fightvision Pty Ltd (1998) 47 NSWLR 473 at [154]; VAW (Kurri Kurri) Pty Ltd v Scientific Committee (2003) 58 NSWLR 631 at [142] - [144] per Beazley JA; Wilkinson v Daly [2004] NSWCA 331 at [5] per Handley JA. 21 A clear exposition of the appropriate principles for the exercise of the discretion can be found in the judgment of Clarke JA (with whom Mahoney and Meagher JJA agreed) in Urban Transport Authority of NSW v Nweiser supra, at 478: "The principle which should guide the court in determining whether to grant an application for leave to reopen is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place …" 22 Whilst it is correct to note that this authority was dealing with the statutory regime which preceded the CPA and the UCPR, it nevertheless remains the appropriate authority by which I should determine this application. As indicated earlier, it is necessary to keep in mind the overriding purpose determined by s 56 of the CPA. 23 In Australian Securities and Investments Commission v Rich & Ors [2006] NSWSC 826; 235 ALR 587 at [18], Austin J noted some of the factors which may be relevant in considering whether to permit a plaintiff to adduce further evidence after it has closed its case. The list includes the following: "(a) the nature of the proceeding; (b) whether the occasion for calling the further evidence ought reasonably to have been foreseen; (c) the consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination, and the nature and extent of the evidence he will himself adduce on the matters in question; …… (e) the importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case; (f) the degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time; (g) the prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs; (h) the public interest in the timely conclusion of litigation; and (i) what explanation is offered by the plaintiff for not having called the evidence in chief." 24 A number of these factors are self-explanatory and others require consideration in their application to the circumstances of this case.

The plaintiff's submissions 25 The plaintiff submits that the additional evidence is central to his case. An issue in the proceedings is whether the defendant received a copy of Ex K, the pest report, at a time prior to the plaintiff's accident, and if so, when. At present, there is a conflict of the evidence on this issue with the plaintiff submitting that the evidence proves that the likelihood was that the defendant had a copy of the pest report. The defendant denied in evidence receiving a copy of the pest report. The defendant's wife, Mrs Ollerenshaw, gave evidence which tended to corroborate the defendant's account. The proposed evidence relates to this central issue. 26 The plaintiff submits that the additional evidence was previously not available despite reasonable diligence on his part. It is clear from the evidence on the motion that before she gave evidence at the hearing Mrs Whiteley told a member of the staff of the plaintiff's solicitor that she did not have any specific recollection of the particular conveyance. Mrs Whiteley repeated that account in her evidence during the hearing. I do not think that it can be said, even if the solicitors for the plaintiff took a detailed proof of evidence prior to Mrs Whiteley entering the witness box, which they apparently did not, that this new evidence would have been available. I do not think that there was any lack of reasonable diligence on the part of the solicitors for the plaintiff in securing this evidence. 27 The plaintiff further submits that the additional evidence is very short, limited in its subject matter and does not give rise to any prejudice to the defendant. 28 The defendant was not cross examined specifically about this conversation. The motion does not seek leave to have the defendant recalled to enable further cross examination. The plaintiff must be taken to be content to allow such inferences to be drawn as the court would be persuaded to, from the absence of cross examination on this particular evidence. 29 Subject to Mrs Whiteley being available for further cross examination, I do not think that there is any prejudice of an undue kind to the defendant. The evidence can be taken within a very short space of time. The time at which the evidence is sought to be tendered is not an unduly long time after the conclusion of the evidence in the principal proceedings. The plaintiff does not seek an opportunity to put this conversation to the defendant in cross examination.

The defendant's submissions 30 The defendant submits that it would be inappropriate and unfair to him to allow this additional evidence. He points to the proposition that Mrs Whiteley's evidence was led, in the course of the trial, in reply to the defendant's evidence and over his objections. He points to the fact that the evidence was permitted to be led, on a specific basis, namely that Mrs Whiteley did not have any specific recollection of the conveyance and that she would give evidence only of her general practice. So much of this submission can be accepted. However, the situation is different now and I do not think that the mere fact that the evidence was originally admitted on one basis should limit the further admissibility of it. 31 The defendant further submits that the additional evidence cannot be probative of any issue because it directly contradicts the earlier evidence of Mrs Whiteley. In other words, the evidence has no probative value. He also submits that when one properly understands the conversation which occurred between junior counsel for the plaintiff and Mrs Whiteley, immediately preceding the revelation by Mrs Whiteley of this additional recollection, it might fairly be said that Mrs Whiteley's additional evidence is not the product of a true recollection and hence the evidence can have little or no probative value. These are criticisms which, in due course, may be held to be valid. They go to the weight of the evidence if it is admitted. They are not, so it seems to me, sufficient to deter the court from admitting the evidence. 32 Finally the defendant submits that he conducted his cross examination of Mrs Whiteley on a specific basis, namely that she had no recollection of the conveyance unless it is was contained in a note or letter or other document in the conveyancing file. He suggests that his cross examination may well have been conducted differently had this additional evidence been given when Mrs Whiteley first gave her evidence. This is an important factor to be considered. I have given careful consideration to it. For my part, I am unable to see how the defendant has been prejudiced in his cross examination of Mrs Whiteley either originally, or else presently, by the stance which he took. For my part, even if this evidence had been adduced I cannot see how the defendant would have cross examined any differently. His submissions do not detail how the approach would have differed.

Discernment 33 I have been much assisted by the careful submissions of counsel in writing, and the oral submissions of Mr Gilbert this morning. I have regard to the principles to which I have earlier referred. 34 It is necessary that I take into account, in a balancing exercise, the interests of the plaintiff and the defendant in the advancement of their cases and the interests of justice generally. In so doing, I am entitled to have regard to the interests of other litigants with matters before this court and whether the granting of this indulgence to the plaintiff would affect the efficient delivery of justice in New South Wales. 35 In short, whilst I am obliged to exercise my power to achieve the overriding purpose of the just, quick and cheap resolution of the real issues in the proceedings, it is appropriate that the interests of justice guide that exercise of discretion. 36 The matter is finely balanced. 37 The principal matters weighing in the plaintiff's favour are:

(1) The period of time which has elapsed since Mrs Whiteley gave her evidence originally is not so significant as to render any injustice to the defendant in taking this additional evidence now;

(2) The evidence is new in the sense that I am satisfied that there was no lack of reasonable diligence on the part of the plaintiff's solicitors in obtaining it; and

(3) It is evidence which touches upon a central and important issue in the proceedings. 38 But weighing against the plaintiff's application is that there is some prejudice to the defendant. The prejudice consists of having to prepare for, and attend court for, the argument on the motion, the taking of the evidence, and the making of any further submissions in the proceedings. That prejudice can be remedied by an order for costs. The plaintiff will be obliged to pay all of the costs associated with this application and the giving of additional evidence on an indemnity basis whatever be the outcome of the proceedings. 39 Since no further affidavit has been filed, the defendant personally will not be required to re-attend court, nor will any other witness. There is no inconvenience to any individual. 40 The case in question is a civil one in which the plaintiff claims damage for personal injury. All of the evidence has been concluded, the additional evidence is in very short compass. The taking of it can be accommodated without delaying the delivery of the presently reserved judgment. The reopening of the case will not have any effect on the other litigants who have proceedings in this court.

Determination and Orders 41 In all of the circumstances, I think that the just, quick and cheap resolution of the real issues on the proceedings will be best served by allowing the application. On the balance of the issues to which I have earlier referred I am satisfied that it is in the interests of justice that I grant the application. 42 The formal orders of the court are:

(1) That the plaintiff have leave to reopen the proceedings to adduce the additional evidence of Mrs Katharine Whiteley referred to in her affidavit of 7 July 2010; (2) That the plaintiff pay all of the costs of and associated with the notice of motion and the taking of the additional evidence on an indemnity basis.

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