Solicitors:
Koffels Lawyers (Plaintiff)
Yeldham Price O'Brien Lusk (First Defendant)
DLA Piper Australia (Second Defendant)
File Number(s): 2013/140063
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Judgment
Introduction
This matter came before me in the Duty List on 22 October 2015. In short, the plaintiff seeks leave to file, and to rely upon, further evidence above and beyond that already filed and served. That application needs to be understood in the context of there being a hearing date set for 10 November 2015. Although the first and second defendants opposed the application, all parties are concerned to maintain the hearing date. Because of the urgency of the matter, these reasons are of necessity concise.
Although no notice of motion was filed by the plaintiff, all parties were content for the application to proceed without it. Proposed orders were helpfully provided by counsel for the plaintiff, although they were the subject of refinement as the hearing progressed.
Background
To state the substantive dispute succinctly, the plaintiff is a horse trainer. Some years ago, he was "warned off" by the first defendant, Peter V'Landys. In short, the claim of the plaintiff is that the second defendant, the Licencing Committee of Racing New South Wales, acted beyond its powers. He also claims that Mr V'Landys committed the tort of misfeasance in public office. He claims damages arising from those asserted wrongs, and the measure of damages claimed can be understood as generally being the loss of income (and other funds) occasioned to him by his inability to work as a horse trainer.
Golden v V'Landys [2015] NSWSC 1589 | Case summary | Zoe
A statement of claim was filed by the plaintiff as long ago as 6 May 2013. The current operative originating process is a further amended statement of claim filed on 1 April 2015. The pleadings closed quite some time ago (although, with the consent of all parties, the second defendant will file an amended defence shortly; it simply adopts one of the defences of the first defendant).
It was on 15 June 2015 that the hearing date to which I have referred was set.
In the past, the plaintiff has served his own affidavits of 19 May 2014, and 10 November 2014. They set out some of the activities that he says he would have engaged in if he had not been unable to work, thereby demonstrating the asserted loss of income.
The plaintiff has also filed and served a report of Mr York of 9 September 2014 that goes some way to subtracting expenses that were not incurred from income that was not able to be earned, thereby showing a net loss.
Finally, the plaintiff has filed and served affidavits from Mr Gray and Mr Dunphy. Those affidavits set out generally the dealings they believe they would have had with the plaintiff to do with horse racing, if he had been permitted to engage in them.
Submissions of the plaintiff
The evidence that is the subject of the application may be summarised as follows.
The first is an affidavit of the plaintiff of 18 August 2015. In short, it is further and different evidence of other activities in which he believes he would have engaged, if he had not been prohibited from doing so. The evidence also calls into question, to a degree, the assumptions that underpin the report of Mr York.
Secondly, there is an affidavit from Mr Sherman of 17 June 2015 which is to the same effect to the affidavits of Mr Dunphy and Mr Gray; namely, the business dealings that Mr Sherman believes he would have had with the plaintiff, if the plaintiff had been able to engage in them.
Thirdly, there is a report of Mr Malacco of 1 October 2015, which provides a more detailed calculation of income and other funds said to have been denied to the plaintiff as a result of the actions of the two defendants.
Finally, in support of the application, the affidavit of Michael Lee, solicitor, of 21 October 2015 was read without objection.
Counsel for the plaintiff accepted that it is regrettable that the evidence has come forward at this late stage. He accepted that it was well beyond the closure of the evidence of the plaintiff, in accordance with court-ordered timetables. But he submitted, in short, that the defendants could not point to any real prejudice - either in terms of preparation of the hearing, or indeed the loss of the hearing date itself - that should cause me to refuse his application. He submitted that ensuring that all relevant evidence is available at a final hearing to all parties, not least the plaintiff, is an important factor to be weighed in my discretion to permit reliance on the evidence.
Submissions of the defendants
It is convenient to summarise my understanding of the submissions of the two defendants (who were represented separately) jointly.
In short, it was said that I should readily infer that service of this material at a late stage will be, at the least, disruptive to the preparation by the defendants of the hearing.
The point was also made that, merely because certain forensic investigations (such as the issuing of subpoenas, or the conduct of discovery) into the credibility of the already notified witnesses of the plaintiff have not been undertaken by the defendants, one should not assume that there had not been other investigations undertaken directed towards impugning their credibility. In other words, it was submitted that this further evidence may not be able to be explored properly.
It was also said to be noteworthy that, although the hearing date of 10 November 2015 was set down on 15 June 2015, no mention was made on behalf of the plaintiff on that occasion of the fact that the report of Mr Malacco was then in the process of preparation. If it be the case that the plaintiff saw fit to conduct the interlocutory steps towards hearing in that way, it was said that the plaintiff should bear the consequences.
Finally, it was said that the starting point of the application must be the plaintiff identifying some cogent reason for the delay in the bringing forward of the evidence. Only then, it was said, should I turn to consider the question of prejudice.
Submissions in reply of plaintiff
During his oral submissions in reply, I enquired of counsel for the plaintiff whether there exists any evidence that sets out the precise reason for the late reliance upon the material. He referred me to the affidavit of Mr Lee, and in particular the reference by Mr Lee to the "various instructions as to his specific circumstances" provided by the plaintiff.
Determination
Turning to my determination, it is well known that the decision of the High Court of Australia in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 176 has led to something of a "sea change" in the approach of courts hearing civil matters to such applications. In particular, timetables that are created with an eye to ensuring the orderly preparation of matters for trial, and the maintenance of trial dates, are now to be given greater weight than they were in the past. Furthermore, costs orders in favour of one's opponent are no longer to be seen as a universal panacea for interlocutory failings.
Here, I consider that there is force in the submission of the plaintiff that the defendants cannot point to any specific prejudice accruing to them. Although I accept that meeting the proposed evidence would no doubt be inconvenient and distracting, one knows that in the build up to a trial very often things must be done urgently. That factor tells in favour of the application.
But to be weighed against the application is my opinion that the plaintiff has not really demonstrated any basis for the receipt of the evidence at this very late stage. The evidence of the plaintiff closed over a year ago, and the hearing date of 10 November 2015 was set down with the consent of all parties on 15 June 2015. And yet there is no real explanation as to why the proposed extended evidence of the plaintiff has only now become available, along with the evidence of Mr Sherman, and the expert evidence of Mr Malacco.
In short, I accept the submission of the defendants that as a matter of legal principle, efficient administration of justice, and common sense, it is incumbent upon a party making an application such as this one to proffer some reasonably persuasive explanation as to why timetables are to be overridden; very late evidence (including expert evidence) is to be received; the preparation of the defendants is to be disrupted, and a trial date (which is some 2 years and 6 months after the first statement of claim was filed) is to be possibly endangered. In the absence of such an explanation, I do not propose to make the orders sought by the plaintiff.
Costs
Turning to costs, the plaintiff sought an indulgence from the court, but was unsuccessful. The hearing of the matter, it having come into the Duty List before me, did not conclude until well outside normal court hours. It was fully and firmly fought between the parties. In the circumstances, there is no reason why the plaintiff should not pay the costs of each defendant.
Orders
I make the following orders:
1. The plaintiff is refused leave to rely upon the following:
1. The affidavit of Peter Sherman sworn 17 June 2015;
2. The affidavit of Joseph Golden of 18 August 2015; and
3. The report of Gino Malacco of 2 October 2015.
1. The plaintiff must pay the costs of each defendant of the proceedings before me.
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Decision last updated: 30 October 2015