HARTIGAN v INTERNATIONAL KRISHNA CONSCIOUSNESS [1999] NSWSC 139 | Case summary

1 HIS HONOUR : The Plaintiff seeks leave to read in evidence on the appeal her affidavit of 31 July 1998, which of course was made later than the hearing and the decision of the Master under appeal. 2 Section 75 A of the Supreme Court Act 1970 applies to the present appeal; see subs (1); and provides to the effect that the appeal shall be by way of rehearing (subs (5)) and the Court may receive further evidence (subs (7)). Subs (8) provides:- "Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds". 3 In Martin v Abbott Australasia Pty Limited [1981] 2 NSWLR 430 Hunt J considered the application of subs (8) in interlocutory appeals from a Master. His Honour was there considering an appeal from an order of a Master granting extension of a limitation period pursuant to s 58 (2) of the Limitation Act 1969. His Honour was of the view that there is a need to comply with subs (8) and to show special grounds if any further evidence is to be introduced. That decision has been followed at first instance on several occasions, to two of which I have referred. His Honour's observations were applicable more widely than to an appeal from a decision under s 58 (2) of the Limitation Act 1969. After considering the significance of the reference to the decision under appeal being on the merits at pages 434 and 435, Hunt J at 435- 436 expressed the view that "…that phrase should be construed as meaning that the hearing of any interlocutory matter in which both parties appeared and in which the issue between them in that interlocutory matter (whether of fact and/or law) was investigated by the relevant tribunal." 4 I respectfully say that his Honour's conclusion related to a wider subject than was required for disposition of the case before him, and was expressed as an enunciation of the basis for the extension of the phrase to the issue in the interlocutory matter itself. As in Martin v Abbott Australasia Pty Ltd it was his Honour's view that the test in subs (8) had been satisfied and this passage was not essential for disposition. 5 The reference to this passage, in the judgment of the majority in Wickstead v Browne (1992) 30 NSWLR 1 at 11, does not clearly show whether their Honours approved of this part of Hunt J's observations, wholly or at all, and the passage is not at all consistent with the conclusion expressed by the majority. The anomaly was commented on by Young J in his Honour's unreported decision in Asian Investments Corporation Limited v Symons 10 April 1996. 6 There is no doubt about the view of the majority. Speaking in relation to an interlocutory appeal against a decision that proceedings be dismissed on the ground that they disclosed no reasonable cause of action, Handley and Cripps JJA said at 11:- "The case falls within s 75 A (7) of the Supreme Court Act 1970, and there is no requirement for the party tendering the further evidence to establish special grounds as is the case pursuant to section 75 A (8) where the appeal is from a judgment after a trial or hearing on the merits ..." 7 In the Notice of Motion before the Master the Defendant claimed that the proceedings should be dismissed for want of prosecution pursuant to Pt 33 r 6 which relevantly relates to proceedings which are not prosecuted with due dispatch. The question raised is not, in my understanding, what are the merits of the Plaintiff's case, although they are relevant to its disposition. I do not find it possible to see the matter in the way in which it was seen by Hunt J. In my understanding the reference to the merits is a reference to the overall merits of the litigation, and not to the matter in issue in the interlocutory application itself. It is not on my own opinion that I proceed but on what I regard as the law authoritatively established by the passage in the majority judgment in Wickstead v Brown to which I have referred: that is, in interlocutory cases including the present case there is no requirement to establish special grounds under subs 75 A (8). There is however a requirement to obtain a discretionary decision under subs (7). 8 The Supreme Court Act 1970 by s 75 A made a new beginning for appeals from Masters which at an earlier time of history were regarded as reconsideration by the Chancellor as principal of a decision which he had delegated to a subordinate officer. The appeal is an appeal by way of rehearing. It is not now a hearing de novo. There is no requirement for leave or special leave, as there is where an interlocutory appeal is taken to the Court of Appeal; the appeal is as of right under Pt 60 r 10 of the Rules of Court. The rules speak as if it were an ordinary event that further affidavits should be filed by fixing a time for that event, but the rule must be taken with the provisions of s 75 A (7) and the discretionary test which it imposes. 9 The legislative context, which creates a right to bring an appeal by way of rehearing, suggests to me that no great stringency ought to be required in permitting further evidence to be brought forward at a rehearing after an earlier hearing by the Master. In Martin v Abbott Australasia at page 436 E-F Hunt J referred to some circumstances which seem to show that in interlocutory appeals there is relatively less need for stringency and for respecting the need for finality than in other cases, and his Honour referred to the English Supreme Court Practice (1979), apparently with approval, for its statement that "Upon interlocutory appeals fresh evidence by affidavit is often admitted in the discretion of the Court." The need for maintaining finality and preserving the understanding of litigants that there is finality of hearings at which the merits are determined and a judgment is given is less pressing in interlocutory appeals. 10 It is a remarkable event that at the hearing before the Master no affidavit of the Plaintiff herself was read. Of course the Defendant as applicant was in no way responsible for this. However where proceedings which she commenced in 1994 relating to events of 1988 were challenged by an application for dismissal for want of prosecution in 1998, the Plaintiff's own position and her own explanation for her conduct at the various phases of the events was of high and obvious importance. The learned Master commented on the paucity of the evidence on this subject in his reasons. 11 Where something of such glaring and primary importance as the Plaintiff's own account of her use of time has been omitted, confidence that the proceedings have been disposed of on a just basis cannot be very strong. The sense that there may well have been a miscarriage of the proceedings, even one for which the Plaintiff or those advising her are the only persons who bear responsibility, appears so strong as to favour admitting her evidence now that it is belatedly brought forward. It is not appropriate to allow procedural mismanagement to have unduly serious consequences, although finally they can be so extreme as to merit closing out a party from consideration. 12 The Defendant as applicant did not proceed in an altogether regular way before the Master. Not all of the material which the Master found important was brought forward on affidavit for the information of the Plaintiff and those advising her before the hearing. In his affidavit of 23 April 1998 the Defendant's solicitor Mr James clearly put forward among the matters relied on the necessity to make inquiries of witnesses, and the difficulties of locating them and taking proofs of their evidence, a process which he said he had not completed. He did not carry this narration to identifying the witnesses by name or by the subject matter with which they dealt, except that it must be understood that in a general way they dealt with answering the Plaintiff's case. 13 The oral evidence in chief of Mr James was taken after the reading of affidavits, and Mr James went through the names of a number of proposed witnesses and the difficulties he had encountered in contacting and taking notes of the expected evidence of a number of them. The Plaintiff was not in a position to deal with that, and the affidavit which she now brings forward seeks to do so (at paragraph 35). It could well be that if she had been in attendance before the Master this could have been handled in another way, but I have been told that she was not and the addresses which she has given are in Tasmania. 14 Earlier passages in her affidavit account for her conduct of the case and of her claim at various times, and deal with the relevant events even before the litigation began. Whether or not her explanation is found to be satisfactory, and it is yet to be tested, I feel that on any reasonable view the application would not have been disposed of on a satisfactory basis unless her explanation was brought forward and considered. 15 Consideration of her explanation will not be simple. It will involve the Defendant's counsel in the need to cross-examine her and to bring forward a body of material of which it must be said that its importance should have been made known earlier. However there cannot have been much change in the balance of difficulties confronted by the Defendant and its counsel since the hearing before the Master in May 1998. 16 I am of the view that the ultimate merits of litigation and the administration of procedural justice are both of importance in interlocutory decisions, and that the law as stated in the majority judgments in Cohen v McWilliam 38 NSWLR 476 would not be rightly understood if it was thought to render compliance with procedural law unimportant. 17 In my view courts should always be aware of the position of the party which complies with obligations, as well as of the claims for consideration of those who are in default but have merits. There is a need to avoid oppressive conduct in detaining defendants in suit for long or indefinite periods; even at the suit of persons who if they would but bring their cases forward have merits. A proper balance has to be maintained. 18 In the present case, where only a few months have passed since the hearing before the Master, and the matter which the Plaintiff wishes to bring forward is of great importance as to the affidavit, up to paragraph 34, and as to the rest, although it is of relatively less importance, the Plaintiff was deprived by the Defendant's chosen manner of proceeding of opportunity to deal with it. I should exercise the discretion on a relatively liberal basis. 19 The Plaintiff has leave to read the affidavit of the Plaintiff sworn 31 July 1998. I hereby certify that paragraphs 1-19 are the reasons for judgment of the Honourable Justice John Bryson.

HARTIGAN v INTERNATIONAL KRISHNA CONSCIOUSNESS

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (9 paragraphs)

Parties

Cases Cited (1)

Cited By (8)