N M Rural Enterprises Pty Ltd v Rimanui Farms Ltd

Supreme Court of NSW|2012-02-03|Before: Harrison J

Judgment 1HIS HONOUR : By notice of motion dated 24 January 2012, the plaintiff seeks an order, among others, that it be given leave to read an affidavit sworn by Kenneth Hazelwood on 23 January 2012 in its case in reply. The application is promoted as being "on all fours" with an earlier application made in order to call evidence from Michael Skaines, a loader or mixer employed by Pay's Air at the Krui airstrip in November 2000, with which I dealt in my reasons for judgment delivered on 15 December 2011: see N M Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2011] NSWSC 1561. It will be recalled that Mr Skaines was a loader or mixer who had assisted Mr Taylor to load chemicals into aircraft for spraying on fields of cotton and sorghum sown on Telleraga by the plaintiff. Mr Taylor gave evidence that one of the aeroplanes involved was loaded with a herbicide containing glyphosate as the active ingredient instead of a fertiliser called microsol and that Mr Skaines had conversations with Mr Taylor about this. I granted the application to call Mr Skaines and he is due to give evidence later this week. It is anticipated that he will in chief deny either that he made any mistake of the sort alleged by Mr Taylor or that he had a conversation with Mr Taylor in which he admitted it. 2At [60] of my earlier decision I said this: "[60] The events at Krui are central. They involved few players. Mr Taylor was one and he has been heard. Bill Harrison, the pilot, is another but his whereabouts are unknown. Evidence that he could give might be critical, having regard to the position occupied by spray pilots in the operations concerned, but I assume I will never hear from him. Mr Pay gave evidence but he was not involved directly in what happened. Mr Skaines, therefore, finds himself in the centre of a dispute as one of only two people who directly witnessed what happened." 3The defendants all oppose this application to call Mr Hazelwood, who was the pilot of another aircraft spraying crops on Telleraga from Krui on the day in question. Mr Hazelwood is ill and effectively unable to travel, and if he were to give evidence, it would have to be by telephone from his home in the country or video link from Port Macquarie Courthouse, which is relatively close to where he lives. The defendants accept in general terms that if the plaintiff's application succeeds, some suitable arrangements to suit Mr Hazelwood's convenience are inevitable and appropriate. 4The plaintiff relies upon three affidavits of Mr Michael Iacuzzi sworn 24 January 2012, 30 January 2012 and 2 February 2012. Those affidavits were read on this application without any objection to which it is necessary to refer.

Mr Hazelwood's affidavit 5Annexed to the first affidavit is the affidavit sworn by Mr Hazelwood upon which the plaintiff proposes to rely. Its contents are germane to the application and are relevantly to the following effect. 6Mr Hazelwood flew aircraft VH-LIS on 23 November 2000 in the course of his work as a pilot employed by Pay's Air. That plane was an 802 Air Tractor with a capacity of 800 American gallons. It was one of three planes flown from the Krui airstrip that day. Mr Bill Harrison was the pilot of the others. Mr Hazelwood said that he did not work on any other job that day before he finished working on the Telleraga spraying work. He recalled that Bill Harrison was flying aircraft VH-LIU, a 502 Air Tractor with a capacity of 500 American gallons, and then aircraft VH-LIM, an 802 Air Tractor. 7Mr Hazelwood has been referred to the evidence given by Mr Taylor and asked to comment upon it. He recalled that both Mr Taylor and Mr Skaines were working at Krui as mixers on 23 November 2000 and that they were both good at their jobs. 8Mr Hazelwood said that he "did not notice any mistake in loading on 23 November 2000" and that "Mick Skaines did not inform [him] of any mistake in loading on 23 November 2000". He also said that he "did not hear about any mistake in loading aircraft that day from anyone else, including Ollie [Taylor] and Bill Harrison." Mr Hazelwood then set out in detail some material with respect to the practice and habit of agricultural pilots in general and his recollections of what occurred at Krui on 23 November 2000 in particular. That evidence is relevantly as follows: "12... (d) the pilot in a 502 Air Tractor had the hopper in front of him (he sits closer to the back than the front of the aircraft) and can see in to the hopper from his seat in the aircraft. The pilot has to watch the hopper as it is being loaded because it is his job to tell the mixer when to stop pumping as the appropriate level in the hopper has been reached. There was never any pressure on pilots to get jobs done quickly at Pay's Air. If there was Farmoz Wipe-out or glyphosate being pumped into the hopper instead of foliar fertilizer the pilot would see it because Farmoz Wipe-out and glyphosate are blue even when diluted with water and foliar fertilizer is a browny colour. The pilot would have to have been "blind Freddy" not to notice the different colour of the two chemicals in the hopper; (e) it was part of the pilot's responsibility to check what was being loaded is what is supposed to be loaded and to stop the job until he was satisfied the chemical being loaded was correct. If there had been a mistake in loading, the whole job would and should have been stopped while the nature and extent of any mistake was investigated and the necessary people, including the client, were informed; (f) I was in constant contact with Bill and the mixers on the radio on channel UHF 24, which is recorded in the spray orders, so if there was a mistake I would have expected to hear something about it. During that day, I did not hear anything about a mistake being made or anything which suggested there had been a mistake. I very much doubt Mick, Ollie and Bill could have kept a mistake where glyphosate was loaded instead of fertilizer from me, if such a mistake occurred; (g) there was nothing remarkable or out of the ordinary about the Telleraga job itself that sticks in my mind. If there had been a mistake where Farmoz Wipe-out or glyphosate was loaded instead of foliar fertilizer I would consider that remarkable and out of the ordinary and I would remember it. In my experience as an agricultural pilot, I am not aware of any case where glyphosate has been loaded instead of fertilizer or even where such a thing has been alleged; (h) I recall that within a week or two of the Telleraga job there was a report received from Telleraga that there had been herbicide damage to the crops. An investigation was carried out at Pay's Air at the time into the Telleraga job and I do not recall anything out of the ordinary being found. At the time the Telleraga job was just one of many jobs I carried out for Pay's Air and there was nothing remarkable about it for me. 13... (d) if there was a loading mistake where a large volume of glyphosate was loaded instead of fertiliser it would have been impossible for Pay's Air to cover this up without buying extra glyphosate to replace the missing stock; (e) I did not hear of this happening."

Mr Iacuzzi's evidence 9Only one of Mr Iacuzzi's affidavits need be considered for present purposes. His third affidavit describes the circumstances that led to the decision to make the present application. The relevant portions are as follows: "10. In about November or December 2010 I recall that the plaintiff's senior counsel, John Maconachie, expressed the view that Mr Hazelwood appeared to be peripheral to Mr Ghirardello's hypothesis because Mr Ghirardello was not suggesting that the aircraft he flew was loaded with glyphosate. 11. On 29 September 2011, shortly after Mr Taylor recanted from his sworn evidence in chief, Mr Maconachie asked me to arrange a conference with Bill Harrison (the Pay's Air pilot) that afternoon or in the morning. 12. ... 13. On 13 December 2011, the plaintiff made an application to re-open its case in reply to adduce evidence from Michael Skaines, a mixer who worked for Pay's Air at Krui on 23 November 2000. That application was heard on 14 December 2011 and judgment was delivered the next day... 14. On 15 December 2011, I attended a conference with John Maconachie and Sean Docker, Queens Counsel and Counsel for the plaintiff respectively. During the conference, we each read the judgment delivered earlier in the day and Mr Maconachie or Mr Docker said words to the following effect: ' It appears from paragraph 60 of the judgment that his Honour is of the view that he would be assisted by any evidence which can be given about what happened at Krui that day. We should try to find Bill Harrison and the other pilot and talk to them to see if they can say anything about it. We will have to make another application for leave to call any such evidence and the evidence will have to be given when we come back to finish the case early next year but we will need to have the evidence before we make the application. We should start by seeing if Ross Pay can point us in the right direction. ' 15. On 20 December 2011, I obtained instructions to try to locate and obtain a statement from Mr Harrison and Mr Hazelwood. 16. On 22 December 2011, I had a further conference with Mr Pay and Mr Docker. During that teleconference, words were said to the following effect: Myself: 'Can you provide me with some information regarding Bill Harrison such as his last known address, date of birth, how long he worked for Pay's Air and his employment details? ' Mr Pay: ' I'll see what I can find and whether we still have his employment records. I think Bill is in Canada .' Myself: 'Thanks. Can you also provide us with Ken Hazelwood's contact details? ' Mr Pay: ' Sure, I'll look for those too .' 17. On 5 January 2012, [a solicitor in my office] forwarded an email to Mr Pay again requesting details regarding Mr Hazelwood's and Mr Harrison's contact details and other information. 18. On 6 January 2012, Mr Pay forwarded... Mr Hazelwood's telephone number... 19. I arranged for a telephone conference to take place with Mr Hazelwood on 11 January 2012, being the first day that he was available to discuss the matter." 10Mr Iacuzzi was not cross-examined.

The first defendant's submissions 11The first proposition offered is that the evidence, which the plaintiff seeks to lead, is not properly evidence in reply but in fact evidence in chief. For reasons that will emerge, it does not seem to me to be profitable at this very late stage of the proceedings to embark upon an analysis of precisely where Mr Hazelwood's evidence falls in the scheme of all the things that any of the parties sought, or were obliged, to prove in their respective cases. A somewhat less than conventional approach to this has characterised this troubled litigation throughout its faltering course, and it is preferable to deal with the issue from a standpoint informed more by substance than by procedure. 12The evidence that Mr Hazelwood would give is indicated in the extract from his affidavit referred to earlier. Despite my reference in the course of hearing this application to the prospect that not all of Mr Hazelwood's affidavit would necessarily survive objection, no specific objections to it were raised. I will accordingly approach this application upon the prima facie basis that all of his evidence is relevant, although the ultimate position would seem likely to be quite different. 13The first defendant submitted, accurately in my view, that the evidence of Mr Hazelwood was of a type that was very similar to the evidence already given by Mr Pay concerning the practice and habit of Pay's Air in the course of its conduct of agricultural aerial spraying operations. The plaintiff adduced that evidence in the context of establishing that there could not have been any contamination of the containers or planes from which the substances sprayed onto Telleraga were dispensed or applied. 14In this context the first defendant contended that Mr Hazelwood's evidence was therefore not evidence that went directly to the apparent contest between Mr Taylor and Mr Skaines. It does not relate directly to the evidence given by Mr Taylor on 30 September 2011. It is not evidence from Mr Hazelwood as an eyewitness or direct observer of the things to which Mr Taylor has deposed. It is evidence that amounts, in effect, to a series of propositions concerning agricultural aerial spraying operations by Pay's Air in November 2000 from which it may be inferred or deduced that what Mr Taylor said is unlikely to be true. 15The first defendant relied upon the submissions that it made in support of its opposition to the plaintiff's original application to call Mr Skaines. It reiterated that the list of relevant factors to be taken into account in the exercise of the discretion to permit a party to reopen its case are those set out in Australian Securities and Investment Commission v Rich [2006] NSWSC 826; (2006) 58 ACSR 414 at [18]. Those factors, taken in the context of the present application, supported the following submissions from the first defendant. The nature of the proceeding 16The first defendant submitted that there was nothing special about the nature of the proceedings that weighed in favour of further evidence being received at this late stage. Whether the occasion for calling the evidence ought reasonably to have been foreseen 17The first defendant submitted that this evidence should have been foreseen by the plaintiff as relevant to any issue to which it now contends it is relevant on at least three earlier but separate occasions. First, from as early as 26 July 2009 when it obtained an affidavit from Mr Pay. Secondly, from 16 August 2010 when Mr Pay gave his evidence in chief. Thirdly, from 30 September 2011 when Mr Taylor was recalled and gave further evidence. The first defendant submitted that the plaintiff must, or at least ought to, have considered the question previously and decided against calling Mr Hazelwood. It submitted that it was now too late for the plaintiff to resile from the forensic decision that it took. The consideration of fairness that the defendant is entitled to know all of the evidence it has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence it will itself adduce on the matters in question 18The first defendant contended that it was prejudiced by the attempted late deployment of Mr Hazelwood's evidence at the very end of the trial. It submitted that it was very difficult for the first defendant to know how, if at all, it would have conducted the case differently had it had the benefit of this evidence far earlier in the proceedings. Its ability to meet such evidence at the present stage is at least a presumptively prejudicial factor weighing against its introduction. The extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case in chief 19As already noted, the plaintiff led similar evidence from Mr Pay in its original case in chief. It put the matter of whether or not Pay's Air was or might have been responsible for the damage to the crops on Telleraga in issue from the start, and sought to deal with that issue through Mr Pay. In doing so the plaintiff decided, when it used Mr Pay in its case, that it wanted to attempt to displace the theory or the suggestion that Pay's Air had anything to do with the damage. The first defendant contended, presumably by reason of the nature of Mr Hazelwood's role as a Pay's Air pilot at the time, and having regard to his duties as such at Krui on 23 November 2000, that the plaintiff must inferentially have decided at about the time that it called Mr Pay that it would not call Mr Hazelwood. The first defendant suggested that the reason for this was to the effect that Mr Pay was the principal of the operation and Mr Hazelwood's evidence added nothing further to the mix. The importance of the issue on which the further evidence is sought to be adduced to pleaded issues in the case 20The first defendant identified the issue as whether a loading mistake had been made by Mr Skaines and whether Mr Taylor's evidence on this issue should be accepted. It agreed that the issue was important. It contended, however, that it was far from clear that Mr Hazelwood's evidence would be of any assistance in resolving that issue. The first defendant contended that Mr Hazelwood's evidence at its highest amounted to speculation and supposition and was no more than an attempt, in the guise of evidence of practice and habit, to reconstruct the critical events of the day to which Mr Hazelwood was not in any event a witness. The degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time 21The first defendant submitted that the evidence was not relevant to the issue. It contended that the evidence had no probative value and was more akin to argument and submission than evidence itself. Nothing that Mr Hazelwood says directly confronts anything said by Mr Taylor in a way that would assist me. 22Furthermore, the delay and consequential costs and expense associated with the calling of the evidence, and the defendants' attempts to meet it, all exceeded its probative value. This is to be compared with the plaintiff's late application to call Mr Skaines, who was directly and intimately involved in the mistake that the defendants allege he made. No such allegation is made against Mr Hazelwood, who did not observe what Mr Skaines did, so that his role is by comparison decidedly uncritical. Any effort on the part of the defendants to test Mr Hazelwood's evidence, as well as the necessary anterior steps required in preparation for them to do so, would be an undue waste of time. The prejudice to the defendants in terms of delay in the completion of the proceedings and the consequential costs 23It was submitted that the defendants were prejudiced by no more than the fact that they would have to consider whether it was necessary to do anything further to meet the evidence of Mr Hazelwood. That would involve consequential costs of further hearings, further advice to the defendants, preparation costs and the costs of written submissions limited to the effect of the new evidence in the context of the whole proceedings. The public interest in the timely conclusion of litigation 24The first defendant submitted that the marginal utility of the proposed evidence from Mr Hazelwood was overridden by the need to conclude these proceedings once and for all. The delays in doing so to date made that fact even more pressing than it might otherwise be. What explanation is offered by the plaintiff for not having called the evidence in chief 25The plaintiff's explanation of why it decided to call the evidence has been referred to earlier. The first defendant submitted that the explanation offered was not adequate to explain why the evidence was not called before at any appropriate stage in the plaintiff's case. It was submitted that none of Mr Iacuzzi's affidavits contains a respectable reason for the lateness of the application or, what amounts to the same thing, for the plaintiff's failure to call the evidence as part of its case in the first place. A conscious decision not to call Mr Hazelwood had in any event also been taken by senior counsel in October 2010 upon the basis that his evidence was "peripheral".

The plaintiff's submissions 26As already mentioned, the plaintiff promoted the current application upon the basis that it was on all fours with the application to call evidence from Mr Skaines. That submission was directed to the proposition that the same relevant factors considered once again, both in favour of and against the present application, ought necessarily to produce the same result as the Skaines application. Mr Maconachie QC put the matter in the following way: "MACONACHIE: I will be brief with respect to the submissions in respect of order 3. Your Honour's judgment of 15 December with respect to Mr Skaines traverses, if I may respectfully say so, in detail and unexceptionally the principles to be applied. Secondly, if I could take your Honour to that judgment, it is dated 15 December and the medium neutral citation is [2011] NSWSC 1561. Can I take you to paragraph 43 where your Honour deals with the question of whether it ought reasonably to have been foreseen that Mr Skaines might be an appropriate witness. I don't take any issue, of course, with what your Honour has to say there about Mr Skaines. Mr Hazelwood is in a slightly different position. Your Honour will not have overlooked the fact that it was in the case of the defendants that Mr Taylor was called in chief by the defendants and he gave evidence supportive of the proposition that the hypothesis that was or is the central feature of Mr Ghirardello's evidence, the 4 th August epiphany, if I can call it that without wishing to be facetious, Mr Hazelwood, up to and including 4 August was irrelevant because Mr Ghirardello's hypothesis in no way involves anything done or not done by Mr Hazelwood and the overwhelming probabilities are that when Mr Harrison was on the tarmac and being loaded, Mr Hazelwood was applying product to the fields of the plaintiff. Alternatively, the probabilities are that he was not immediately at the point of loading because he would have been in his place waiting to get a spot. Accordingly, his evidence on the issue was, to use a word that is in one of Mr Iacuzzi's affidavits, peripheral to the issue at least more so than others, particularly Mr Harrison. It was not until the recantation by Mr Taylor that the evidence of Mr Hazelwood could be seen to be relevantly relevant, if I could put it that way, if at all. But again, he was not present when this alleged mistake was made. Only Mr Harrison and Mr Skaines were present. At least, that is the evidence of Mr Taylor. Even Mr Taylor wasn't present. Accordingly, in terms of whether or not the plaintiff ought to have immediately called Mr Hazelwood was bound up with the same kind of decision that was made with respect to Mr Skaines and your Honour has dealt with that in the judgment of 15 December when your Honour in that judgment made the point that your Honour has already referred to in answer to the objection made by my learned friend Mr Hancock. It plainly became of importance to give your Honour as much assistance as possible irrespective of forensics or tactical arguments about in whose body of evidence there was or was not a lacuna. It is on that basis that we submit the same considerations that moved your Honour to allow the calling of Mr Skaines' evidence is on all fours with this application to call the evidence of Mr Hazelwood. It is more relevant than the evidence of Mr Taylor because Mr Hazelwood was inferentially at least, if not proved directly by the evidence that he will give and notice of which has been given, he was there at times when Mr Taylor was not there and therefore is in a position to give some direct evidence of what he observed, heard, was told and the like. That, we submit, is the basis upon which this application should be allowed."

Consideration 27The matter that impelled me to grant the application to call Mr Skaines was informed by the basic proposition that to do other than receive his evidence would have left me in the wholly artificial and untenable position of having to determine a critical issue by reference to evidence from only one side of the equation touching upon that issue, and in circumstances where that opposing evidence had been identified and was easily able to be called. It seemed to me in the circumstances as they then presented themselves that there was only one answer to the application having regard to the interests of justice. Any countervailing issues of delay or prejudice, or the status of any explanations for the decisions not to call the evidence earlier, paled by comparison with the need to determine the dispute between Mr Taylor and Mr Skaines by reference to the best available evidence. 28The present application is very different. First, noting my quoted desire to understand just what took place at Krui on 23 November 2000, I do not consider that what Mr Hazelwood says should have occurred is critical. Mr Hazelwood cannot speak to the interplay between Mr Taylor and Mr Skaines except in general terms of what he would expect and what he would presume. As the fundamental issue of spray drift in this case reveals, no overriding weight can necessarily be attributed to what a particular party might want to suggest should have happened if ordinary practices and habits were universally adopted and followed. 29Secondly, the evidence is not critical. There has been other evidence of the same character and to the same effect in the proceedings already. Mr Pay's evidence was similar to that which it is intended Mr Hazelwood would give. On one view of the matter, Mr Pay's evidence, as well as that of Mr Taylor and Mr Skaines, about the colours of herbicides and fertilizers, and what a pilot could or could not see, and what a pilot might or might not do, is uncontroversial. Even without Mr Hazelwood's evidence, the cases for the defendants are confronted with whatever is the evidentiary or persuasive effect of that evidence upon which the plaintiff will seek to rely to support the submission that the alleged mistake was too obvious and too open to observation, and hence correction, to have actually occurred. That point remains for another day. As I say however, it is no stronger and no weaker for want of repetition through the evidence of Mr Hazelwood. It is in that sense that Mr Hazelwood's evidence is not critical. This in turn leads to a conclusion that the probative value of the evidence is likely to be low or marginal. 30Thirdly, the evidence should have been considered and called earlier if it was to be called at all. It was evidence that one might have thought would have followed Mr Pay's evidence. I am of the view that the quite unremarkable forensic decision not to call Mr Hazelwood is a reflection of the actual and relative importance of his evidence having regard to, and in the light of, the fairly unexceptional nature of the evidence given by Mr Pay. The evidence from Mr Hazelwood could and should have been foreseen and utilised earlier if it was to be utilised at all. 31Fourthly, although there has been little proffered in the way of evidence of actual prejudice suffered by the defendants, there must come a time when further expenditure upon almost any issue in the proceedings has to cease. There is a presumptive prejudice to the defendants, which in the light of the current stage of the proceedings, and the important requirement finally to determine issues long outstanding between the parties, forecloses the need to inquire in detail or at length about precisely what prejudice the defendants might be able to establish in fact. 32Fifthly, the fact that the defendants have, in the words of the plaintiff's counsel, had a complete change of their case in the last six months, from one asserting contamination to one asserting mistaken loading and spraying, does not elevate Mr Hazelwood's evidence to a status that now warrants reception. He is still only able to give evidence in general terms, of the order of that already given by Mr Pay, and is not able to offer a competing account of what happened in fact, as opposed to what might or should have happened in theory. 33Finally, despite Mr Maconachie's contention to the contrary, the dissimilarities between this application and that in respect of Mr Skaines' evidence are greater than the similarities. There is in my view no helpful analogy between them that is available to support the plaintiff's submissions.

Decision 34It follows in my view that it is not in the interests of justice to permit the plaintiff, by an appropriate grant of leave, to call evidence from Mr Hazelwood and that its application to do so should be dismissed with costs. The related matters of the form and timing of any evidence that Mr Hazelwood might have been able to give, having regard to his undoubtedly severe and disabling medical circumstances, do not need to be considered.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 February 2012

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