Jones v Dyldam Developments Pty Ltd & Anor [2007] NSWSC 752 | Case summary

INTERLOCUTORY JUDGMENT: Reasons for excluding evidence 1 HER HONOUR: An issue has arisen concerning the admissibility of evidence on behalf of the first defendant. It is necessary to set out a little background. 2 The plaintiff claims to have been injured on 20 February 2003 during the course of his employment as a bricklayer's labourer on a building site in Conie Avenue, Baulkham Hills. The first defendant was the builder and occupier of the premises; the second defendant was a bricklaying company of which the plaintiff was an employee. 3 There is no dispute that the plaintiff now suffers from a very serious back disability and consequential psychiatric and/or psychological disturbance. So much was evident during the course of two days over which he gave oral evidence. On many occasions it was necessary to adjourn for short periods in order to allow the plaintiff to compose himself, or because he needed to use the toilet. He walks with the aid of a walking stick. I was able to observe what I accept to be genuine and severe physical discomfort. No contrary suggestion was made during the course of his cross-examination. He alternately sat and stood to give his evidence. He frequently lost concentration. I set out these matters because they have a relevance to the issue which I now have to decide. 4 The plaintiff's case is that he suffered his injury on the date in question when he was pushing a wheelbarrow laden with cement to deliver it to bricklayers. He said that, having safely delivered two wheelbarrow loads of cement, he was in the process of delivering a third. A bobcat was working nearby on the site and caused a disturbance to the ground surface. He said that as he pushed the wheelbarrow it slipped into an excavation which had been caused by the bobcat, pulling him over, as a result of which he suffered the injury. 5 The plaintiff was extensively cross-examined. Eventually it was put to him that his account of what had occurred on the day was "a fiction". 6 On the third day of the trial (which was fixed for four days) a witness was called on behalf of the first defendant. This was Mr Heath Fayad. Mr Fayad produced a very large book, referred to as a journal. It was said to be a journal maintained on behalf of the first defendant and various other companies which, presumably, form part of a group of building companies. It records, apparently, the names of all employees of the companies within the group and identifies, with reference to dates listed sequentially, where and when they worked. The journal, became exhibit VD1. Cursory examination of it suggests that it contains a great deal of information accessible to those who are familiar with the signs and symbols used, but quite inaccessible to those without inside knowledge. The journal was produced in order to establish, through Mr Fayad, that, on 20 February 2003, no bobcats were located on the Conie Avenue site. This was to be done by establishing, through the records in the book, that no bobcat drivers had been employed at the Conie Avenue site on that day. Admission of evidence to that effect could cast considerable doubt upon the plaintiff's account of the circumstances in which he sustained the injury to his back. 7 Tender of the evidence drew an immediate objection from senior counsel for the plaintiff. This was based on what was said to be non-compliance with a subpoena issued on behalf of the plaintiff to the first defendant on 23 June 2006 and returnable on 10 July 2006. Mr Fayad's evidence was therefore taken on a voir dire. The present judgment concerns whether that evidence ought to be admitted in the trial. 8 Clause 7 of the Schedule to the subpoena required production of: "Documents relating to the personnel, wage and work records of all bobcat drivers who worked on site at 12-14 Conie Avenue Baulkham Hills New South Wales during any period of construction." 9 As the evidence eventually disclosed, all that was produced in relation to this clause of the subpoena was a document, on the first defendant's letter head, which opened with the words: "The following shows a list of various bobcat drivers who worked at 12-18 Conie Avenue, Baulkham Hills."

Thereafter appear the names of five employees, and a series of dates in 2002 and 2003. Although it does not expressly say so, it is clear that the dates are said to be the dates on which the various nominated bobcat drivers worked on the Conie Avenue site. 10 The document does not identify 20 February 2003 as any date on which any of those individuals worked at the Conie Avenue site. It is a clear inference (which I comfortably draw) that the information in this document was derived from the journal. 11 Senior counsel who appears for the first defendant initially argued that the journal does not come within the description in clause 7 because it is not limited to work records of bobcat drivers, but extends to all other employees of the first defendant and its associated companies. I rejected this. I held that the journal clearly comes within that description and ought to have been produced. 12 Senior counsel's second response was that, as the subpoena was returnable in July 2006, almost 12 months ago, it was open to the plaintiff to insist on further compliance with the subpoena. As evidence that subsequently emerged established, that argument scarcely availed the first defendant. 13 Counsel for the plaintiff were able to establish that, in fact, his solicitors had made repeated, but unsuccessful, attempts to do just that. On 18 September 2006 they wrote, in general terms, referring to "previous correspondence" (which was not put in evidence) complaining of what they perceived as deficiencies in the first defendant's response to the subpoena. This drew a reply from the solicitors for the first defendant which included the following: "We are instructed that most of the records relating to the Conie Street site were destroyed by water damage during an incident in 2004." 14 On 14 August 2006 the plaintiff's solicitors wrote again, complaining of various deficiencies in the compliance with the subpoena, including the following: "We also note that even though the names of the bobcat drivers have been nominated, personnel, wage and work records were not included." 15 In order to demonstrate that they were serious about the issue, the plaintiff's solicitors advised that they were instructed that, unless the documents that came within the subpoena were produced within seven days, they would seek orders demanding compliance. The response to this was dated 17 August 2006 and was in the following terms: "We produced copies of all documents forwarded to us by our client and our instructions are that there are no other documents relevant to your subpoena. Nevertheless, we will obtain further instruction and inform you if there are any further documents." 16 On 1 May 2007 the plaintiff's solicitors wrote again, complaining, inter alia, that documents within clause 7 of the subpoena had not been produced, and saying, specifically: "In respect of paragraph 7 we note your client provided a list of bobcat drivers who worked at the site however have failed to provide any details regarding personal (sic) wage and work records." 17 They enclosed a Notice to Produce returnable in this court on 14 May 2007. The Notice to Produce required, in clause 2, production of documents described in precisely the same terms as those required by clause 7 of the subpoena. I was informed, from the bar table, without dissent, that a call was made upon the Notice to Produce before a registrar of this court on an unspecified date and that no documents were produced, at least as specified in clause 2. 18 This history shows a repeated, flagrant, and almost contemptuous disregard for the obligations of a party to litigation and the recipient of a subpoena. That records within clause 7 existed and were known to those responsible for answering the subpoena is amply demonstrated by the summary which was produced initially in purported response to the subpoena, and which was the subject of repeated complaint on behalf of the plaintiff. 19 Senior counsel for the plaintiff objected to the admission of the evidence tendered through Mr Fayad on the ground of fairness. He complained that he had had no opportunity to prepare himself to cross-examine on the journal, and that the manner in which the journal is laid out makes it extremely difficult to comprehend. It is only necessary to glance at the book to accept that the latter observation is well made. 20 Senior counsel for the plaintiff therefore sought that the evidence be excluded in the exercise of the discretion conferred by s 135 of the Evidence Act 1995. That section is in the following terms: " 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time." 21 The plaintiff has had no opportunity either to investigate or to confirm what is sought to be proved by reference to the journal. It is quite unfair to require the plaintiff to accept at face value evidence such as this during the course - indeed, on the penultimate scheduled day - of a trial. 22 Senior counsel who appeared for the first defendant ultimately accepted that the evidence in the voir dire established malfeasance on the part of the first defendant or its legal advisers. He was unable, in the face of the correspondence, to justify the repeated failure to produce the journal. No explanation for the failure to produce it was forthcoming or even attempted. 23 Senior counsel argued, however, that the evidence is of such moment to the first defendant's case that it would be unfair to the first defendant to exclude it. He characterised the evidence as "fatal" to the plaintiff's case. In my opinion the significance of the evidence in the first defendant's case only intensifies the prejudice to the plaintiff. What the argument overlooks is that evidence that is critically advantageous to one party is, by corollary, correspondingly critically disadvantageous to the opposing party. 24 I wish here to emphasise that the course I propose to take is not taken with any intent of punishing or penalising either the first defendant or its legal representatives. My focus is entirely upon the issues raised by s 135. Senior counsel for the first defendant argued that the appropriate course is to admit the evidence and allow the plaintiff time to meet it. Not surprisingly, he accepted that the costs of any delay so occasioned would have to be borne by the first defendant. 25 In general run of cases I would conclude that this would be the appropriate course to take. While I do not necessarily accept, as contended on behalf of the first defendant, that the issue of the presence or absence of bobcat drivers onsite on 20 February 2003 is determinative, and that proof of their absence would be fatal to the plaintiff's case, I do accept it is an issue of, at least potentially, considerable significance. 26 But also relevant to the determination is the condition of the plaintiff. That is why I spent some time at the outset of these reasons outlining my observations of him. 27 To adopt the course proposed on behalf of the first defendant would, in my opinion, cause or result in undue waste of time. Such a course would be unfairly prejudicial to the plaintiff. In saying this, I recognise that s 135 is not directed to unfair prejudice caused by the consequences of admitting evidence - it is directed to any unfair prejudice caused by the admission of the evidence. I do not take the view that the evidence tendered through Mr Fayad of itself would necessarily be unfairly prejudicial to the plaintiff, if he had had an adequate opportunity to investigate it. It is unfairly prejudicial because he is confronted with significant evidence to which he was entitled to have access a year ago, and which, through his solicitors, he made repeated and persistent efforts to have produced. His only alternatives are either to accept the first defendant's interpretation of the journal, or to submit to what may turn out to be a lengthy adjournment to enable his solicitors (who have, in this respect, demonstrated considerable diligence) to undertake investigations they should have been able to undertake a year ago, and after the loss of another year with all that that implies in terms of fading memories, disappearance of potential witnesses and the like; as well as the emotional hardship that would be occasioned by adjournment. I base my decision principally on s 135(c). 28 S 135 prescribes the three circumstances that may trigger the exercise of the discretion it confers; the decision is itself, ultimately, a discretionary one. In this respect the prejudice that would be caused to the plaintiff by adjournment is a relevant consideration. So also is the flagrancy of the conduct of the first defendant. The former has influenced my judgment very much more than the latter, which has played only a minor role. 29 I refuse to admit the evidence tendered on behalf of the first defendant through Mr Fayad concerning the presence or absence of bobcat drivers on the Conie Avenue site on 20 February 2003. **********

Jones v Dyldam Developments Pty Ltd & Anor

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Judgment (11 paragraphs)

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