Lowe v Pascoe

EX TeMPORE Judgment 1These proceedings were heard by Smart AJ. His Honour gave a number of reasons for judgment before he, unfortunately, fell ill and was unable to complete the hearing. 2His Honour separated his determination of liability from his determination of quantum. He ordered the separate hearing of eight questions on liability. The only question finally determined was as to the existence of a partnership. His Honour declared the existence of a partnership between the parties and their respective interests therein 3In Lowe v Pascoe [2012] NSWSC 151, Bergin CJ in Eq analysed his Honour's various reasons for judgment and concluded that five of the eight questions had been determined by his Honour. The questions that had not been determined were: "(a) The dissolution of the partnership; (b) the fiduciary duties, if any, owed by the late Kut Sze Tu to the plaintiffs and the breaches of any of those duties; and (c) whether three properties identified by his Honour in his order were held on trusts alleged in the statement of claim." 4The Chief Justice has nominated me as the person before whom these proceedings should be listed for trial. The Civil Procedure Act 2005, s 88 is as follows: "(1) If a trial of proceedings has commenced before a judicial officer and he or she is unable to continue the trial or give judgment in the proceedings, by reason of death, resignation or incapacity, the senior judicial officer of the relevant court may nominate some other judicial officer of that court as the judicial officer before whom the proceedings are to be listed for trial. (2) In this section, a reference to a trial of proceedings includes a reference to a trial of one or more questions in the proceedings." 5The trial is set down for hearing to commence on 13 August 2012. 6I am empowered to give such directions as to the evidence to be used in the fresh trial by s 89 of the Civil Procedure Act, which is as follows: "(1) If: (a) any proceedings have been listed for trial pursuant to section 88, or (b) an appellate court has made an order for a fresh trial generally (being an order given on an appeal after a trial of any proceedings), or (c) a judicial officer before whom a trial of any proceedings has commenced has discharged himself or herself from the trial without having given judgment in the proceedings, the court may give such directions as it thinks fit as to the evidence to be used in the fresh trial. (2) In particular, the court may give either or both of the following directions: (a) a direction that all or any part of the evidence given at the previous trial is to be taken to be evidence in the fresh trial without the need for the witnesses to be recalled, (b) a direction that all or any of the witnesses are to be recalled for examination or cross-examination, or both, either generally or as to a particular question or questions in the proceedings. (3) In subsection (1), a reference to a trial of proceedings includes a reference to a trial of one or more questions in the proceedings." 7When he became ill, Smart AJ was hearing an application to receive fresh evidence. The evidence and submissions were complete but his Honour had not ruled on the application. 8I have been freed from other judicial duties in the fortnight prior to the commencement of the fresh trial and have informed the parties that I will determine that application then. I have given a direction that all the evidence on the application is, initially, to be taken to be evidence on the application in the fresh trial without the need for the witnesses to be recalled. I reserved the question whether a direction should be made that any of the witnesses on the application are to be recalled for examination or cross-examination or both, and I reserved the question whether further directions as to the conduct of the fresh trial should be made. 9The parties have requested me to make further directions as to the conduct of the fresh trial to aid their preparation for the hearing. 10The plaintiffs have submitted the directions I should make as have the fifth and sixth defendants whose submissions have been adopted by the second and third defendants, the only other active parties. 11The essential difference between the parties is that the plaintiffs submit that any evidence additional to that before his Honour should be limited to the three questions Bergin CJ in Eq found to be unresolved, whereas the defendants submit that, in addition to the evidence before Smart AJ, the parties have liberty to adduce further evidence and to cross-examine generally any witnesses called before his Honour. 12The defendants submit that a fresh trial is a fresh trial. The term is undefined and, it is submitted, should be given its ordinary English meaning of a new trial before a new judicial officer. 13Reference was made to Brennan v Brennan (1953) 89 CLR 129. In that case the trial judge died after all the evidence had been taken. A new judge was appointed and the parties asked him not to hear the oral evidence de novo but to have the transcript of the evidence tendered as an exhibit. 14Having referred to a number of cases in which courts had proceeded not to hear the whole suit de novo, the High Court said at 136-137: "In all these cases the Court on appeal criticized the course that had been followed but accepted what had been done and did not order a new trial. There are, we think, in most cases grave objections to such a course and the objection becomes graver when there is, as in the present case, a serious conflict of evidence. But the parties were all represented by counsel or solicitors and they all requested his Honour to take the course he did. It was open to any of the parties to apply to his Honour for leave to recall any of the witnesses for examination if they thought fit, but they all elected not to do so and the two witnesses who were further examined were recalled at his Honour's request." 15In Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 at 649, Kirby P said: "Statute apart, the primary rule is that once a court embarks upon the hearing of the case, prima facie the court as so constituted should conclude the hearing and any reconstitution of the court in the middle of proceedings will be an irregularity warranting intervention on appeal or review to require a new trial de novo." 16But the first proposition derived by Kirby P from his analysis of the authorities was: "If specific provision is made by statute for the reconstitution of the court following the death, illness, resignation, prolonged absence or other incapacity of a judge who has part heard a case, the legislation will govern the substitution: Chua Chee Chor v Chua Kim Yong [[1962] 1 WLR 1464]." 17The principles of statutory interpretation have often been stated. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47] the plurality said: "This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy." (footnotes omitted) 18This passage was cited with approval by Crennan and Bell JJ in Travelex Ltd v Commissioner of Taxation of the Commonwealth of Australia [2010] HCA 33; (2010) 241 CLR 510 at [82]. 19The text could not be clearer. It does not endorse the proposition that a fresh trial must be a hearing de novo. It allows for all or part of the evidence before the trial judge to be taken to be evidence in the fresh trial. If that course is taken the fresh trial is not a hearing de novo. 20The provisions were introduced by the Civil Procedure Act. There were no forerunners. The second reading speeches and explanatory note do not shed light on their inclusion. They simply summarise the provisions. Thus the explanatory note at p 10 states: "Clause 88 authorises the senior judicial officer of a court to nominate the judicial officer before whom proceedings are to be listed for trial where the judicial officer before whom a trial of the proceedings has commenced is unable to continue by reason of death, resignation or incapacity. Clause 89 provides for the directions that may be given in relation to the use of evidence in fresh trials, including directions allowing evidence given in a previous trial to be used without the need to recall witnesses and directions requiring that witnesses be recalled for limited examination or cross-examination, or both." 21The only other state that deals with this problem is Queensland. But the Supreme Court Act 1995 (Qld), s 297 prescribes a hearing de novo in such cases. 22I would have thought that the legislative purpose of these provisions was to overcome the stricture that fresh trials following trials aborted by the unavailability or incapacity of a trial judge to conclude a hearing must be hearings de novo. 23The defendants submitted that the provisions do not direct what evidence cannot be tendered. A party could still tender evidence not before the first judge. It was submitted that the parties had a right to tender other relevant evidence at the fresh trial. 24I reject that proposition. The conduct of the fresh trial is in the hands of the new judge who may order existing evidence before the trial judge to be admitted as evidence in the fresh trial. Subject to principles with respect to the receipt of fresh evidence, a direction may be given for the adducing of fresh evidence and the new judge may recall witnesses before the trial judge for examination or cross-examination or both. Those are matters of discretion for the new judge. They are not matters of right in the parties. The statute comes first and it specifies a general discretion as to the evidence to be used in the fresh trial. 25In this case, as Bergin CJ in Eq found, and I gratefully adopt her Honour's reasoning, five of the questions on liability that Smart AJ identified have been resolved. Subject to the part heard application to receive fresh evidence, no utility is served by allowing fresh evidence or examination or cross-examination of witnesses called before Smart AJ on those questions. 26In my view the entirety of the evidence before Smart AJ should be taken to be the evidence in the fresh trial without the need for the witnesses to be recalled. Any further evidence to be used in the fresh trial will, subject to the part heard application, be limited to the resolution of the three questions which were not determined by Smart AJ and will be the subject of my decision on an application by a party seeking to adduce such evidence unless agreed by the parties. 27Likewise, subject to the part heard application, examination or cross-examination of witnesses called before Smart AJ will be limited to the resolution of the three questions and will be the subject of my decision on an application by the party seeking that entitlement unless the parties have agreed to it. 28I reserve the question of directions as to the conduct of the quantum hearing. 29The parties should now be in a position to agree on the terms of the directions that should be made. I direct the parties to bring in short minutes of order containing the terms of those directions.