Plaintiff v Defendant

Plaintiff v Defendant - [2018] VSC 258 - VSC 2018 case summary — Zoe

[33]

The formal recording of the orders of a superior court of record is often referred to as the "perfecting" of that order. Whether a court may reopen a proceeding and reconsider the order that has been pronounced is often described as hinging about whether the order has been "perfected". This use of terminology must not be seen as giving form and procedure precedence over substance and principle. The questions that arise in this matter must depend for their answer not upon what forms and solemnities have been observed but upon how effect is to be given to the principle of finality. In particular, what is to mark the point at which a court concludes its consideration of a controversy?
The end of a court's powers to consider and determine a controversy cannot depend upon whether one party asserts that the court has made some error in the conclusion it has reached. If allegation of error in the court's orders were the criterion, there would never be an end to some disputes. And because one party's assertion of error cannot provide a sufficient criterion, a court's belief that it has recognised its own mistake can provide no useful criterion. Such a belief could provide no useful criterion because, in the end, the accuracy of the belief would have to be tested against the arguments of the parties. It follows therefore that no matter whether it is a party that alleges error, or it is the court itself which believes that it recognises its own error, a decision that an error had been made could be reached only after giving all parties an opportunity to be heard. And it is this reargument of issues that would constitute the departure from the principle of finality.
Identifying the formal recording of the order of a superior court of record as the point at which that court's power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.

[67]

There are four recognised categories of case in which a court may grant leave to reopen a party's case: where fresh evidence, unavailable or not reasonably discoverable previously, becomes known and available; where there has been inadvertent error; where there has been a mistaken apprehension of the facts; and where there has been a mistaken apprehension of the law.[61] These categories are not closed.[62]
Where... a party relies on the 'inadvertent error' category in applying to re-open its case for the purpose of adducing additional evidence, the nature and reasons for the error are relevant in considering whether it is in the interests of justice to grant the application.
The distinction between the omission of evidence due to an error by counsel, and a tactical decision on counsel's part not to adduce that evidence, was considered in Urban Transport Authority of NSW v Nweiser.[63] In that case, the plaintiff claimed damages for personal injuries against his employer. Counsel for the defendant employer decided not to call a particular witness because of an erroneous belief that the witness's evidence would be inadmissible. Counsel closed the defendant's case and, as the plaintiff did not adduce any evidence, counsel commenced his final address. The next morning, upon resumption of the hearing, counsel sought leave to re-open the defendant's case to call the witness. The primary judge refused leave on the basis that counsel had made a deliberate decision not to call the witness.
The New South Wales Court of Appeal held that the judge had erred. The Court discussed three different situations involving a failure by counsel to adduce evidence: first, where the failure is unintentional; secondly, where the failure is deliberate but based on a factual or legal misapprehension; and thirdly, where the failure is deliberate and is intended to gain a tactical advantage for counsel's client in the litigation. We will refer to these, respectively, as 'the Nweiser unintentional category', 'the Nweiser intentional but mistaken category' and 'the Nweiser tactical category'.
Clarke JA, with whom Mahoney and Meagher JJA agreed, held that the judge had erred in basing his decision on the fact that counsel's decision not to call the witness was deliberate, without taking into account the fact that that decision was based on a misapprehension. Clarke JA stated the relevant principles as follows:

[68]

Where, as here, a defendant announced the closing of its case and, there being no case in reply, a short time later sought leave to re-open because its counsel realised he had made a mistake it is difficult to discern how the interests of justice would be furthered by disallowing an application to re-open to call evidence which was clearly relevant to, and may have had a significant impact on, the issues in the case. It is true that the fact that there has been a deliberate decision not to call the witness whose evidence it is later sought to lead in a re-opened case is a relevant consideration. But there may be a number of reasons why a deliberate decision is made. It may, for instance, be made for tactical reasons.

On the other hand it may be that in the heat of the moment counsel has inadvertently overlooked facts proven in the opponent's case or has otherwise acted on some misapprehension. Where the failure to lead evidence from a witness whom it is afterwards desired to call results from a tactical decision by counsel the courts will usually be disinclined to grant an application to re-open. Even in these circumstances, however, the court has a discretion to grant an application by a party to re-open its case and the interests of justice may dictate that the application be allowed. In short the fact that a deliberate decision was taken for tactical reasons is not decisive but remains an important factor.

If, however, counsel inadvertently fails to call a witness different considerations arise and, as it seems to me, if counsel makes a deliberate decision based on a mistaken apprehension of the nature of the evidence called against his client or the admissibility of the evidence which he seeks to call the justice of the case may well point to the granting of the application. The decision made by counsel in this case although a deliberate one stands in a very different category from one based on tactical grounds. It is more appropriately regarded as one in which counsel had made a mistake or failed to appreciate the relevance and admissibility of the evidence which he omitted to lead.

...

The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not [to] call the witness in the party's case was a deliberate one. Of course that does not mean that that is not a very relevant consideration. It is. Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application. But even in that circumstance there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel's deliberate decision. Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately to be considered as one in which the application has resulted from an error by counsel.[64]

[71]

The only civil case that the parties referred to the judge, and to this Court, in which the plaintiff applied to re-open her case after the defendant had made a no case submission, was Mayne v The MTT (No 1).[71] That case involved a claim for damages for personal injuries sustained by the plaintiff when the defendant's bus collided with her bicycle. After the plaintiff closed her case, the defendant made a no case submission and elected not to call evidence. The plaintiff sought to re-open her case on the basis that her counsel had omitted, through inadvertence, to call evidence going to the visibility of the plaintiff to the defendant's bus driver shortly prior to the accident. In opposing the application, counsel for the defendant submitted that granting the application to re-open would prejudice the defendant because it would be deprived of the opportunity to successfully defend the claim on the basis of the no case submission and also because, having elected not to call evidence, a potential interstate witness had been sent home.
Underwood J held that the justice of the case required that the application to re-open be granted, provided that the defendant was permitted to resile from its election. He stated that '[o]nce the defendant is freed from the election it made and permitted to call any evidence it wishes, no prejudice will result from an order granting the application'.[72] He added that '[h]ad this application been made at the end of the plaintiff's case but before the defendant had been put to its election there is no doubt that the justice of the case would have required that it be granted.'[73] This was because the conduct of the defendant's case, prior to making its election and the submission of no case to answer, had not been affected by the absence of the evidence the plaintiff sought to call.[74]
Henning v Lynch[75] was a criminal case in which the prosecutor had omitted to adduce, prior to closing the prosecution case, evidence that the breathalyser that was used to conduct a breath test on the defendant was an approved device. The prosecutor sought leave to adduce this evidence after the defendant made a no case submission. The Supreme Court of New South Wales held that the magistrate had erred in not permitting the prosecution to re-open its case to adduce the additional evidence. The Court treated the failure to adduce the evidence as a technical defect in the evidence and held that the applicable principle strongly favoured the re-opening of the prosecution case. The Court drew a distinction between an inadvertent failure to adduce evidence, as in the instant case, and an election not to adduce evidence. The Court said the following:

[131]

Also relevant to the question of costs are the provisions of the Civil Procedure Act 2010. In the present circumstances, the following provisions and aspects of those provisions are particularly relevant:

(1) among other things, the object of the Civil Procedure Act, is to reform and modernise the practice, procedure and processes relating to civil proceedings in the Supreme Court, and other courts. Importantly, provision is made for an overarching purpose in relation to the conduct of civil proceedings which is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute in those proceedings;[169]

(2) in the exercise of its powers, the Court must seek to give effect to the overarching purpose, whether these powers arise from the procedural rules or practices of the Court or otherwise;[170]

(3) an overarching obligation is cast upon parties and legal practitioners representing or acting on behalf of a party, whether they be barristers or solicitors, to act honestly at all times in relation to a civil proceeding and not to make any claim or make a response to any claim in a civil proceeding that is frivolous, vexatious, an abuse of process or does not, on the factual and legal material available to the person at the time of making the claim or responding to the claim, have a proper basis;[171]

(4) an overarching obligation applies to the persons referred to in the preceding paragraph to disclose to each party the existence of all documents that are, or have been, in that person's possession, custody or control of which the person is aware and which the person considers, or ought reasonably consider, are critical to the resolution of dispute. Disclosure must occur at the earliest reasonable time after the person becomes aware of the existence of the document or at such other time as the Court may direct. These provisions do not apply to any document which is protected from disclosure on the grounds that privilege which has not been expressly or impliedly waived or under any other Act (including any Commonwealth Act) or other law;[172] and

(5) in exercising any power in relation to a civil proceeding, including the exercise of the discretion as to costs, the Court may take into account any contravention of the overarching obligations.[173]

At a glance

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Judgment (330 paragraphs)

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Legislation Cited (1)

Cases Cited (24)