Linfox Transport (Aust) Pty Limited v Ellul & Ors [2003] NSWSC 396 | Case summary

JUDGMENT 1 Shaw J: The plaintiff in these proceedings (Linfox) has filed a notice of motion seeking a review of the decision and orders made by Senior Deputy Registrar Whitehead ("the SDR") on 16 September 2002 and affirmed on 26 February 2003. 2 What is sought is a review of the SDR's orders pursuant to Part 61 r 3 of the Supreme Court Rules 1970 ("the rules"). As has been submitted by the plaintiff, and I do not take it to be in dispute, those rules allow such a review as a hearing de novo by a judge of this Court: see Abram v National Australia Bank Ltd [2001] NSWSC 916 per Taylor AJ. 3 The first difficulty the plaintiff has is that the rules provide that a notice of motion shall be filed within 28 days after the date of decision when a review of the Registrar's decision is sought. There is, understandably, power in the Court to extend that period of time: see Part 61 r 3(3) and (5) of the Rules. 4 Apparently the plaintiff indicated in a timely way to the third defendant that it wished to challenge or review the decision of the SDR of 16 December 2002, and sought to do so by going back to that officer to have the matter reconsidered. This process seems to have been misconceived and that is presumably why the plaintiff has now sought a formal review by a judge of this Court. 5 The third defendant has not identified any tangible prejudice or other untoward consequence that would ensue from a court extending the time period to facilitate the review of the primary decision. In my opinion, and in the exercise of my discretion, the interests of justice favour such an extension particularly given the absence of any real detriment and given the relevantly modest time which has elapsed since the expiration of the time for the application prescribed by the rules. As I have indicated, the primary decision of an officer of this Court was published on 16 September 2002. The notice of motion which has given rise to these proceedings, and seeking a review and/or setting aside of the orders of the SDR (confirmed by that officer on 26 February 2003) was filed on 19 March 2003. In all of the circumstances, this does not seem to be excessive delay and does not cause any injustice to a party to the proceedings if the Court were to determine the notice of motion at this stage. 6 Accordingly, I propose to make an order which would grant leave to extend the time during which the plaintiff could apply to review the decision of the SDR pursuant to Part 61 r 3(5) of the rules to the date on which the relevant notice of motion seeking that review was in fact filed in this Court. 7 As I understood the concessions made by the plaintiff, it has no difficulties with orders 3, 4, 5 and 6 made by the SDR on 16 September 2002. Accordingly, those orders are, by consent, affirmed. 8 However, complaint is made about orders 1 and 2 which were made in the following terms: 1. That within 28 days of the date of this order the plaintiff serve statements in written form of the evidence it intends to adduce at the trial against the third defendant as though that evidence were being given in chief by the witnesses. 2. Order 1 applied to all witnesses applied to be called for the plaintiff at the trial for whom affidavits or witness statements have not been served. 9 The criticism of those orders which require, in a universal way, the serving of prior statements of evidence by all witnesses, that the plaintiff wishes to rely upon, articulated by Mr Moses, counsel for the plaintiff, is twofold: first, he says that the orders are based upon an unsubstantiated assumption, lacking any basis in evidence, that according to the learned SDR: …the plaintiff probably either has taken the statements from these witnesses or is anticipating their oral evidence based on their statements or evidence in the criminal proceedings (see [19] of the decision). 10 It is put that there was no adequate basis to form the view that such a probability existed and that, on the contrary, the plaintiff has been unable to obtain detailed statements of evidence from two witnesses. 11 Secondly, it is submitted that the plaintiff is simply not in a position to obtain full or comprehensive statements of evidence or affidavits from two specified witnesses. As I understand it, in relation to all other witnesses such affidavits constituting their evidence in chief have in fact been filed and served. According to the plaintiff, there are two exceptional situations where they have difficulty complying with an order that requires that 'all' witnesses must have provided by the plaintiff an affidavit or witness statement. 12 It is said that a Mr Steven Knight has declined to provide a detailed statement of evidence for the plaintiff. He is a contractor against whom it is alleged certain wrongdoing. The unchallenged evidence before me, put by way of an affidavit from the plaintiff's solicitor, indicates that in a conversation with Mr Knight he said that: I have decided I no longer want to give you a statement. 13 The second witness who has been specified as causing a difficulty for the plaintiff in providing an affidavit or complete statement of evidence is an undercover police officer known by the name of 'Max'. In this respect, the plaintiff's solicitor attests that she has been informed that the officer known as 'Max' will not speak to the solicitors for the plaintiff unless he is under subpoena. 14 Thus, it emerges that in respect of two witnesses the plaintiff has a real, practical problem in complying with the orders of the SDR. An outline of the evidence of these two prospective witnesses has been provided to the third defendant, but some complaint is made as to the adequacy or comprehensiveness of that information. 15 In my view, this matter needs to be approached against the background that, in the ordinary course of events, evidence in this Court is given in an oral form. Part 36 r 2 of the Rules provides: (1) Subject to Rules (2), (3) and (4), the evidence of any witness on any issue at a trial shall be given orally before the Court. (2) The Court may, on terms, order evidence of particular facts may be given by affidavit. (3) Sub-rule (1) applies subject to - (a) the Act; (b) the Rules; (c) any direction of the Court; (d) any agreement between the parties; and (e) Section 29(4) and s 31 of the Evidence Act. 16 Sub-rule (4) applies only in relation to liquidated claims and evidence going to questions of costs and so is irrelevant to the present controversy. Thus it is clear that the ordinary method of giving evidence to the Court is by viva voce evidence, although it is obviously open to the Court to order, in appropriate circumstances, that the trial proceed by way of affidavit. 17 It is true, as the third defendant has contended, that the case management principles have an underlying theme that parties should not be taken by surprise by evidence, that trials should not be by way of ambush and, so far as is practicable, written notice of evidence should be given. This concept reflects an overriding purpose of the rules, namely to facilitate the just, quick and cheap resolution of the real issues in civil proceedings: see Part 1 rule 3(1). 18 I accept that the climate has changed and that the tendency is to provide written notice of evidence in civil trials in this Court. However the prima facie concept as to the nature of oral testimony continues to find its place in the rules and it is difficult for a judge hearing an interlocutory application to preclude the possibility that oral evidence might be needed, especially when a party finds it difficult to have a co-operative relationship with a potential witness who might not be prepared to facilitate the preparation of an affidavit or witness statement. 19 I note the concession on the part of the plaintiff that all audio and visual tapes in relation to witness 'Max' will be provided to the third defendant, and I assume that that will occur as a matter of expedition. This meets to a substantial degree the complaints that the third defendant has about the lack of prior notice as to evidence. I am also of the view that a document which is said to be confidential, namely the supply monitored agreement, should be supplied to the third defendant by the plaintiff and I propose to direct that this be done. 20 I accept the submission of the third defendant that a serious allegation such as that contained in the statement of claim in this case must be fully and clearly particularised: Banque Commercial SA (In liq) v Akitial Holdings Pty Limited (1990) 169 CLR 285 at 293. The serious claim here alleged is essentially one of fraud. However, it seems to me that the notice of motion which has come before me does not raise a question of further and better particulars but rather a question of whether there ought to be comprehensive statements of evidence filed by the plaintiff. If there are deficiencies in the particulars provided then these should be dealt with by correspondence between the parties and, if regrettably necessary, by another notice of motion before this Court. The distinction between evidence and particulars should be adhered to. 21 Of course the trial judge would retain a considerable discretion as to whether procedural fairness would allow the tender of evidence outside the outline of evidence proffered by the plaintiff in respect of the two witnesses who have not provided an affidavit. One cannot preclude the possibility of an adjournment and costs sanctions in relation to evidence which might constitute a surprise for the third defendant. That is why every effort should be made both formally and, if necessary, informally as between counsel to alert opposing parties of potential adverse material which might be tendered against them. Nothing I have determined in the present application should be seen as detracting from the desirability of prior notice of significant evidence. 22 Subject to these reservations and directions, I am of the view that the decision at first instance should be reviewed and varied to the extent that the requirement to provide an affidavit or comprehensive statement of evidence on the part of the two specified witnesses -Steven Knight and 'Max'- should be removed from that order. Otherwise, the order should stand. 23 The question then arises as to what should be done about the costs of these proceedings. Having heard the submissions of the parties on the question of costs I propose that costs should be reserved and left for the trial judge as part of his or her disposition of the matter in substance. 24 The costs of this interlocutory step do not need need to be dealt with at this stage. And I do not accept the proposition of the third defendant that costs should be paid forthwith, as distinct from the ordinary principle that costs would be dealt with at the conclusion of the litigation. The normal rule of this Court (Part 52A r 9) is that costs in relation to an interlocutory application are not payable until the conclusion of the proceeding 'unless the Court otherwise orders'. I appreciate that in some situations judges of the Court have ordered the payment of costs forthwith: see, for example, ASIC v Rich [2003] NSWSC 297 per Austin J (at [85]-[86]). 25 In Fiduciary Limited v Morning Star Research Pty Limited [2002] NSWSC 432, Barrett J took the view that the interlocutory hearing before him was a separate and completed phase of the proceedings and the result of the directions made involved a 'new beginning' (at [18]). Accordingly, his Honour did make an order in that case that the costs of the interlocutory proceedings be payable forthwith. Nevertheless, I think that both the Rules and principle mean that such an order is exceptional rather than the norm. I refer in this regard to Kyabram Property Investments Pty Ltd v Murray; Murray v Duddy [2003] NSWSC 286 and Equityloan Limited v Windy Dropdown Pty Limited (Unreported, NSWSC, Campbell J, 12 March 2003). 26 In the present circumstance I regard the notice of motion before me as an ordinary incident of the litigation and not something separate and apart from the substantive issues. I do not think that there is any proper or sufficient basis for ordering costs in favour of the plaintiff, who was successful in its notice of motion, and I do not think that there is any basis for costs on either side to be granted in the exceptional category as being 'payable forthwith'. 27 Accordingly I make the following orders and directions: 1. The applicants appeal is allowed; 2. I affirm the orders made by the Senior Deputy Registrar but vary order 2 to add: except Steven Knight and the witness known as 'Max'; 3. I direct the plaintiff to produce to the defendant all audio and visual recordings relating to the witness 'Max' and produce the supply monitored agreement; and 4. Costs should be costs in the cause. *****

Linfox Transport (Aust) Pty Limited v Ellul & Ors

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