Glover v Australian Ultra Concrete Floors Pty Ltd

Supreme Court of NSW|2006-05-24|Before: Simpson J, Newman J

background 2 By statement of claim filed in the Newcastle Registry of the Court on 26 October 1995, the plaintiff claimed against the defendant (as his former employer) damages for personal injury. He claimed that, on 1 May 1994 (a Sunday), he slipped and fell on some slurry on a concrete factory floor, as a result of which he sustained a severe back injury. He claimed that the injury occurred as a consequence of the negligence or other breach of duty of the defendant. 3 By amended defence, filed on 13 February 2004, the defendant denied the material allegations in the statement of claim, and pleaded that the plaintiff's injuries were wholly or partly attributable to his own negligence. It did not plead to the plaintiff's allegation that he was employed by the defendant. It pleaded that the plaintiff's injuries were wholly or partly attributable to his own negligence. 4 The claim came on for hearing in Newcastle on 21 August 2000 before Newman J. On behalf of the defendant a multi-pronged attack was made upon the plaintiff's credibility. Relevantly, for the purposes of the present proceedings, the defendant alleged that, far from injuring his back by falling at work, the plaintiff had been pushed over at home by his wife, and it was this that caused the injury to his back. In cross-examination it was put to the plaintiff that this was the case. He denied it. Another employee of the defendant, Mr George Higgins, gave evidence in the defendant's case that the plaintiff had told him that he had injured his back by being pushed over, at home, by his wife. Mr Higgins was not cross-examined on this evidence. Another witness, Scott Thompson, who the plaintiff claimed had been present at the time of his injury, denied having observed any accident as described by the plaintiff. After a hearing that occupied four days, his Honour delivered judgment on 3 October 2000. He gave judgment for the defendant: Glover v Australian Concrete Floors Pty Ltd [2000] NSWSC 928. Essentially this was because the plaintiff had not discharged the onus of proving that the injury occurred as he claimed, and his Honour preferred the evidence of certain of the defendant's witnesses in this respect. 5 The plaintiff appealed against the decision. On appeal he was given leave to adduce, by affidavit, additional evidence. There was a considerable bulk of affidavit evidence proffered on the appeal, which is also evidence in the present proceedings. It is not possible to discern which of the affidavits tendered for the plaintiff were accepted in evidence by the Court of Appeal. Included in the bundle of affidavits were affidavits sworn by individuals, including one sworn by the plaintiff's (by the time of the trial, former) wife. Inter alia, these affidavits supported the plaintiff's assertion as to the manner in which he had sustained back injury. 6 As I read the judgment of the Court of Appeal, the Court was critical of the manner in which the defendant had conducted its case at first instance. This was because the Court of Appeal perceived the allegation that the plaintiff had suffered his injury other than at the factory as "tantamount to alleging fraud" but that it had not expressly pleaded fraud. While acknowledging that it was not, in the circumstances, incumbent upon the defendant so to plead, the Court of Appeal clearly considered that failure to do so amounted to an ambush, deflecting the plaintiff from marshalling and calling relevant witnesses, on an issue to which he was not adequately alerted, and which became a significant factual matter in the trial, and a significant reason for his ultimate failure. Accordingly, the Court of Appeal allowed the appeal and ordered a new trial: Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80, per Ipp JA, with whom Sheller and Hodgson JJA agreed. The new trial has not yet taken place. 7 In the meantime, specifically meeting the criticism of the Court of Appeal, on 23 June 2005 the defendant filed a further amended defence. It now specifically pleads fraud, in the following terms: "5. The defendant says that the plaintiff is fraudulent in making the allegation that he was injured as a result of the negligence of the defendant. Particulars of fraud 5.1 The alleged injury did not occur as alleged in the course of the plaintiff's employment on 1 May 1994 or arising out of such employment. 5.2 To the extent that the plaintiff suffered any injury which is not admitted such injury occurred as a result of the plaintiff's then wife Veronica Glover pushing him over on or before 5 May 1994." 8 Pursuant to s194L of the Legal Profession Act 1987, the defendant's solicitor has certified that there are reasonable grounds for believing on the basis of facts provable on the material available (at the time of certification) and a reasonably arguable view of the law that the defence has reasonable prospects of success. 9 By notice of motion filed on 24 May 2004, the plaintiff sought a variety of orders, of which one only is presently relevant. That was an order that the matter proceed by way of affidavit evidence. That notice of motion came on for hearing before Registrar Howe, who, on 19 May 2005, refused to make that order, giving comprehensive reasons. 10 I can now turn to the orders sought in the two notices of motion. The first was filed on 13 July 2005. In it the plaintiff seeks the following orders of substance: "2. That the Defendant remove from the Court file the present Further Amended Defence and file and serve a proper revised Further Amended Defence.

In the Alternative, that the Defendant remove paragraph 5 from the said Further Amended Defence.

Further and in the Alternative, that the Defendant, pursuant to Supreme Court Rules Part 15 Division 5 Section 15.23 Paragraphs 8 and 9, further verify his said paragraph 5 pleading by providing affidavit evidence by any witnesses testifying that I have made a fraudulent work accident damages claim in this most respected Court.

In the Alternative to 4, that the Defendant provide detailed witness statements as per above." 11 The second notice of motion was filed on 20 July 2005. In it the plaintiff seeks the following orders of substance: "2. That the plaintiff, pursuant to Supreme Court Rules Part 61, Division 1, Para 3, be granted a review of Assistant Registrar Howe's Decision handed down on 30 June 2005.

In the Alternative to 3, That full and proper Witness Statements be provided for all witnesses to be called to the second hearing of this matter.

That, pursuant to Subsection 338 of the Crimes Act 1900 No 40, the details of the Perjury & Fraud committed in this most Respected Court by the Defendant witnesses, Mr William Saddington, Mr George Higgins and Mr Scott Thompson, at the first hearing of these proceedings ... in August 2000 be provided to the Attorney General's Department & the Department of Public Prosecutions for further action and prosecution.

In the Alternative to 5, That I, David John Glover, of 8 Middleton Drive East Maitland, in the State of New South Wales, the Plaintiff in these proceedings be given leave of this most respected Court to prosecute the above Mentioned Defendant witnesses for perjury and fraud committed at the first hearing of these proceedings, ... in August 2000. 7. That, pursuant to the Limitation Act 1969 & further fresh and probative evidence, I obtain leave of the Court for an extension of time to amend my Statement of Claim & join PW Saddington & Sons Pty Limited, the Defendant sole business & factory licencee, as a second defendant to these proceedings."

(In each notice of motion, the first order sought was that the notice of motion be heard by a judge. On 26 July 2005 Hoeben J made orders to that effect.) 12 It is convenient to deal with the orders sought in the sequence in which they appear in the notices of motion. It will at times be necessary to refer to additional factual matters. The plaintiff supported each notice of motion by an affidavit sworn by himself on the same day as the notice of motion was filed. In support of both notices of motion he also relied upon an affidavit sworn by himself on 18 October 2004. He tendered additional material that was marked as exhibits. This included a large amount of correspondence, particularly, but not confined to, correspondence between himself and the defendant's solicitor. He put forward a volume of material from the appeal. He made both written and oral submissions.

orders 2 and 3 13 These orders can be disposed of conjointly. Each concerns the express pleading of fraud contained in paragraph 5 of the further amended defence. As I have indicated, it is a clear inference that this was pleaded in direct response to the criticisms made by the Court of Appeal. 14 The plaintiff's position in respect of the pleading may best be indicated by extracting verbatim from his written submissions. He wrote: "1. It [the pleading] contains a bogus or false claim that my accident did not happen at work, that this whole matter is just a fraudulent claim that I have bunged on. 2. It is totally untrue and totally offensive particularly coming from legal representatives that employ base tactics of surprise and are willing to act in improper ways in order to derail my just case. 3. It is totally untrue and totally offensive particularly coming from a defendant company whose directors and management are guilty of prior conflicting evidence, deliberate misleading of the court, defrauding the court and outright perjury not to speak of not having any proper workers compensation in place at the time of my work accident."

This is not the whole of the submission, but it is sufficient to convey the nature of the plaintiff's objection to the pleading. It is, in effect, that the pleading of fraud is offensive to him. In a second written submission on the same subject the plaintiff asserted that the defendant had no witnesses to substantiate the claim. He asserted that Mr Higgins, who was the witness who gave the evidence at the first trial, had left the country, with no intention of returning, and that the defendant did not know his whereabouts. 15 By UCPR 14.14(2) a party is required specifically to plead any matter that, if not pleaded specifically, may take the opposite party by surprise. Fraud is expressly identified in sub-rule (3) as a matter which must, pursuant to sub-rule (2), be specifically pleaded. 16 The defendant is fully entitled, provided that it is in possession of sufficient evidence to justify its taking that course, to seek to defend the plaintiff's claim by raising an issue that that claim is fraudulently made. As the Court of Appeal made clear, the defendant ought, in those circumstances, expressly to plead that matter. That is a matter of fairness to the plaintiff. 17 It is plain that the defendant has had available to it evidence to support its pleading. That was the evidence given by Mr Higgins in the first trial. The plaintiff asserts, but has provided no evidence to establish, that that witness is no longer available to the defendant. Even if that is correct, it does not mean (necessarily) that Mr Higgins' statement, or evidence, will not be admitted; and it does not justify the conclusion that no other witnesses to give evidence to that effect are available to the defendant. What the plaintiff seeks in effect is that the defendant be shut out from defending his claim on the basis that it was fraudulently made. That amount to an application summary judgment on that issue. The principles upon which summary judgment may be made are well known, and are set out in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 115. They are not here met. There is no basis for making either of orders 2 or 3 claimed in the first notice of motion.

orders 4 and 5 18 UCPR Part 14, Division 4, 14.22 is concerned with verification of pleadings, which is required in certain kinds of proceedings. Proceedings for personal injury are one class of proceedings expressly excluded from the requirement. 19 By sub-r(2) a court may order verification of other pleadings, including those in relation to claims for personal injury. Given the serious nature of an allegation of fraud, it may be that, in appropriate circumstances, the court would make an order under this rule. There is no reason to do so in the present case. The evidence on which the defendant will rely has already been given in the sworn testimony of Mr Higgins. 20 In any event, the nature of the verification required by Part 14 Division 4 is limited, by r14.23, to verification that allegations of fact or denials of fact are, to the belief of the deponent, true. 21 There is no basis for ordering that the defendant provide further verification of paragraph 5 of the further amended defence. 22 Nor is there any basis for ordering that the defendant provide detailed witness statements to that effect. The substance of the evidence is, as I have already remarked, available to the plaintiff by reason of the evidence given in the trial in 2000. 23 The notice of motion of 13 July 2005 must be dismissed.

orders 2, 3 and 4 24 The order sought in paragraph 2 of this notice of motion refers to a decision of Assistant Registrar Howe given on 30 June 2005. The argument, however, concerns the decision of Registrar Howe not to order that the matter proceed by way of affidavit. The plaintiff did not at any time dissent from the proposition, put by senior counsel for the defendant, that this was the substance of the decision. I mention this, because the only reasons for the decision of Registrar Howe to which I have access deals with an application that the matter should proceed by way of affidavit evidence, but is dated 19 May 2005. By UCPR Part 45 Division 4 the court may review any decision of a registrar. The review is not circumscribed in the sense that an appeal, as ordinarily understood, is. It is appropriate to take into account all of the matters that were available to the registrar, but to bring an independent mind to bear upon the question in issue. 25 That does not assist the plaintiff in the present case. This really falls into the same category as the matters I have previously determined. It is reasonably plain that the essence of what the plaintiff complains of is the absence of affidavits or witness statements concerning the fraud alleged against him. At the risk of yet another repetition, the plaintiff has access to the evidence given by Mr Higgins. It is not appropriate to order that the matter proceed by way of affidavit evidence, nor, indeed, by witness statements. There is not the slightest basis for making orders which would unnecessarily add to the costs, and the time consumed by, preparation for the re-trial. 26 I will not make any of orders 2, 3 or 4 sought in this notice of motion.

orders 5 and 6 27 Under paragraph 5 of the notice of motion the order sought by the plaintiff invokes s338 of the Crimes Act 1900. That section relevantly provides as follows: "338 Restrictions on prosecutions for perjury

(1) A person is not to be prosecuted for perjury except: (a) by the Director of Public Prosecutions; or (b) at the direction of the Attorney General; or (c) by any other person with leave of the judicial officer who constituted the judicial tribunal before which the perjury is alleged to have been committed.

(2) If it is impossible or impracticable to apply for leave to prosecute in accordance with subsection (1)(c), the prosecution may be instituted with leave of the Supreme Court.

(3) ..." 28 The Court before which the perjury was alleged to have been committed was constituted by Newman J. Newman J has since retired. For a time after his retirement, he held a commission as an Acting Judge of this Court. However, senior counsel for the defendant indicated that, at the present time, he does not hold such a commission. Accordingly, pursuant to subs(2), leave may be granted by this Court otherwise constituted. 29 The order sought by the plaintiff in paragraph 5 does not reflect the terms of s338. If what the plaintiff seeks is an order under s338, that must be an order that he be granted leave to prosecute the three named witnesses for perjury. That is the order sought in prayer 6 of the notice of motion. 30 The perjury alleged against Mr Higgins is his evidence that the plaintiff told him that it was his wife who had caused his back injury. The perjury alleged against Mr Saddington and Mr Thompson is not the same as the perjury alleged against Mr Higgins. As I understand the plaintiff's argument, the perjury alleged against Mr Saddington and Mr Thompson is that they gave evidence, wrongly, that the plaintiff was employed by the defendant. This has led to a diverting issue. I will return to the evidence relevant to that issue (that is, who was the employer of the defendant) when I deal with order 6 sought in this notice of motion. 31 There is longstanding authority that to support a conviction for perjury there must be evidence, from at least two witnesses, or by one witness who is corroborated, that proves the falsity of the statement alleged to have constituted the perjury: see the notes to s327 of the Crimes Act in Howie and Johnson: Butterworth's Criminal Practice and Procedure in NSW, at 8.5 327.15. The plaintiff has produced no evidence to suggest that he would be in a position to meet this requirement. That is a material consideration in deciding whether leave under s338 should be granted to him. It would be inappropriate to grant leave to commence a prosecution for perjury unless the court was satisfied that there was available to the applicant (the proposed prosecutor) evidence sufficient to support a conviction. That, alone, is adequate reason to refuse the application. 32 In Bar-Mordecai v Hillston [2003] NSWSC 1269 Bryson J (as his Honour then was) dealt with a similar application. He found that the material before him in support of the application was inadequate to justify the grant of leave. His Honour said: "19 ... Unless there were some objective material which showed, in a fairly clear way, that evidence given before me was perjured or was knowingly false swearing, I would think there could be no real prospects that prosecution would ever be submitted to a jury for decision." 33 His Honour went on to make some observations which suggest that the evidence the applicant in that case contended was perjured, had, in fact, been accepted by him. He, plainly, had been the trial judge. That, of course, is not this case. I was not the judicial officer before whom the allegedly perjured evidence was given; it is not entirely clear from the judgment of Newman J, that his Honour did accept Mr Higgins' evidence, although it was one of the factors that moved him to reject the plaintiff's account. Nevertheless, the first part of para [19] is applicable, and is an approach with which I respectfully agree. The purpose of s338 is to ensure that prosecutions for perjury are not brought by disappointed litigants without an adequate foundation. 34 Whether Mr Higgins' evidence in respect of his asserted conversation with the plaintiff was perjured evidence or not may (on the assumption that Mr Higgins gives evidence again) be decided in the retrial. It is of some significance that it was not the subject of cross-examination in the first trial. 35 The evidence of Messrs Saddington and Thompson which the plaintiff alleges was perjured is in a different category. So far as I can discern from the plaintiff's material the evidence which he claims was given by them that was perjured concerned the identity of his employer. It will be necessary to deal with this in more detail in respect of order 7 as claimed. It is sufficient, in dealing with orders 5 and 6 as claimed, to say that there is not the slightest basis for concluding that the evidence they there gave was deliberately false, or that there is any reasonable prospect that the plaintiff might prove that it was. 36 I decline to make orders 5 or 6.

order 7 37 By this claim the plaintiff seeks an extension of time in order to bring proceedings against PW Saddington and Sons Pty Ltd ("Saddington"). It is necessary to spend some time explaining the basis on which he does. 38 Although, in his original statement of claim, the plaintiff pleaded that he was employed by the defendant, it is now his position that his true employer was Saddington. He bases this upon a Deed of Licence, a copy of which was in evidence. It is here to be observed that the copy produced by the plaintiff is undated an unexecuted. It is now apparent that this was a draft. It is, however, a copy of the document provided to the plaintiff by the solicitor for the defendant. The parties to the Deed were the defendant (referred to as "the Company"), Saddington (referred to as "the Licencee"), and a series of individuals (referred to as "the Covenantors"). The substance of the Deed was to create a licence of the business previously conducted by the defendant in favour of Saddington. The draft Deed document given to the plaintiff provided that a condition precedent to the operation of the Deed was the entry into contracts of employment by three named individuals (described as "key employee contracts") with Saddington. The plaintiff's name was one of the three. 39 In these circumstances it is hardly surprising that the plaintiff considered that, as a result of the agreement contained in the Deed, he had become an employee of Saddington. This was supported by group certificates provided to him from 1993 which showed Saddington as the name of his employer. Earlier group certificates had shown the defendant as his employer. 40 However, the second day of the hearing of these notices of motion, senior counsel who appeared for the defendant was able to produce a dated and executed version of the Deed of Licence. It was dated 1 May 1992. This bore significant, and material, divergences from the earlier document. Most notably, the plaintiff's name was removed from the list of "key employees" who were to be employed by Saddington: in place thereof was a clause by which the defendant undertook to use its best endeavours to retain him as its employee, and to make his services available to Saddington. 41 This really disposes of any basis upon which the plaintiff ought now to be allowed to join Saddington in order to nominate it as his employer. Further, the defendant has at all times explicitly conceded that it was the plaintiff's employer. That was not sufficient to allay the plaintiff's concerns. He asserts that, at the time of his injury, the defendant was not covered by a relevant policy of workers' compensation and insurance. He was therefore concerned that, in the event that he were successful in the second trial against the defendant, the defendant would be unable to meet the verdict, and would not be covered by insurance. That concern, too, ought to be allayed by a concession made by the workers' compensation insurer of the defendant, Allianz, which, again explicitly, has undertaken that it will indemnify the defendant in respect of any verdict awarded to the plaintiff. That acknowledgement extends to any verdict which results from, or in the context of, a finding that the defendant's witnesses give untruthful evidence. 42 In these circumstances I am satisfied that the leave the plaintiff seeks to join Saddington as defendant (in its capacity as his alleged employer) should be refused. 43 That disposes of all orders sought in the second notice of motion. It will be dismissed. 44 The orders I make are:

(i) the notice of motion dated 13 July 2005 is dismissed; (ii) the notice of motion dated 20 July 2005 is dismissed; (ii) the plaintiff is to pay the defendant's costs of these proceedings.

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.

CITATION : Glover v Australian Ultra Concrete Floors Pty Ltd [2006] NSWSC 503

Bar-Mordecai v Hillston [2003] NSWSC 1269 CASES CITED : General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 Glover v Australian Concrete Floors Pty Ltd [2000] NSWSC 928 Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80

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