Evidence - Course of evidence and addresses - Course of evidence - Re-opening case and recalling witnesses - By parties - Principles involved - Circumstances where leave to re-open should be granted.

Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471; Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22; Graham Taylor v Geoffrey Voss [1995] TASSC 9, referred to.

Judgment Number: [2010] TASSC 19

ROSS AMBROSE GROUP PTY LTD (ACN 009 501 759) v RENKON PTY LTD (ACN 009 581 622), SUZANNE REES, PETER JOHN SHIPTON, RODNEY PLUNKETT, SUSAN ELAINE PLUNKETT

BRUCE RICHARD DOOLAN, TIMOTHY JAMES ELLIS, PHILLIP ANDREW WELCH, DAVID ANTHONY SMITH (NO 2)

1 In July 2009, I commenced a trial in what were effectively third party proceedings. In those proceedings, a company, Renkon Pty Ltd, and its directors sued their former solicitors in negligence. For the purpose of these reasons, I will describe the company and its directors as "the plaintiffs" and the solicitors as "the defendants".

2 The dispute between the parties arose out of an agreement the plaintiffs entered into to purchase a business, the Olde Tudor Motor Inn. The business was owned by a company, Deming No 80 Pty Ltd ("Deming") and plant and equipment involved in the sale was owned by a company, Ross Ambrose Group Pty Ltd ("Ambrose"). Ambrose also owned the freehold premises from which the business operated. Part of the agreement between the parties was that Ambrose would grant a lease of the premises to the plaintiffs. The difficulty was that there was a covenant on the freehold title which prevented the sale of alcohol on the real estate where the business operated from. The business had been operating for some time in disregard of the covenant.

3 It was a condition precedent to completion of the sale agreement that the covenant would be removed. It became apparent that could not happen in the time available. The parties therefore entered into a second agreement ("the second agreement"). That effectively provided that the sale and purchase would be completed, a lease would be granted to the plaintiffs, and Ambrose and Deming would have two years to persuade the Recorder of Titles to accept an amendment to the relevant plan effecting a removal of the covenant. If that did not occur, the plaintiffs could surrender the lease and Ambrose and Deming would be required in effect to repay to the plaintiffs about $850,000. The covenant was not removed, the plaintiffs did not call for the surrender of the lease, and, by the time that they did so, a court ruled they were too late. Hence, the proceedings against their solicitors for failing to give appropriate advice about pursuing the plaintiffs' rights under the second agreement in time.

4 Were the plaintiffs to succeed in establishing that the defendants were negligent, they sought damages. The damages sought were identified as:

(a) an amount equal to what they could have recovered from Ambrose and Deming under the second agreement, had the right to surrender the lease been exercised when it could have been, and

(b) an amount equal to a judgment obtained against them by Ambrose for lost rent and costs.

5 The day before the trial was due to start, the solicitors for the plaintiffs raised with the Court a potential problem they had. Part of their case involved their establishing the capacity of Ambrose and Deming to meet their obligations under the second agreement had they been called upon to do so. These obligations could not have arisen until at the earliest June 1991. The problem the plaintiffs faced was that they had been proposing to rely on the evidence of a Mr Ross Ambrose. They had just been told Mr Ambrose was very ill and was in hospital. At that point they did not know when, or indeed if, he would be available to give evidence.

6 A directions hearing took place at which discussions were had with counsel about how to deal with this problem. Neither party sought an adjournment of the trial. What was discussed was a proposition that the trial proceed as far as it could, absent Mr Ambrose, and then resume when he was fit enough to give evidence. The possibility of someone else other than Mr Ambrose giving evidence about the issue was canvassed. Counsel for the defendants indicated that, provided the delay in Mr Ambrose giving evidence was not significant, his clients would agree to proceed in the manner proposed. At the conclusion of the directions hearing, the following exchange occurred:

"MR TATARKA: Your Honour, I'm pleased to say that we think we've found a way through Mr Ambrose's difficulties. We propose to call, instead of Mr Ambrose, his financial manager, effectively, who has access to the books and accounts of the relevant company in the relevant period, so I would propose to lead evidence from that man. Now, if it transpires that by reason of his evidence and cross-examination that some other issue that only Mr Ambrose could address is left dangling, I would just seek your Honour's leave to mention that issue at that time, and effectively preserve this application should Mr Ambrose's evidence prove to be critical, but I no longer think that it is in terms of proving my case.

HER HONOUR : All right. Are you content to proceed on that basis Mr Procter?

MR PROCTER SC: Yes, your Honour."

7 On that basis, the trial began. In his opening, counsel for the plaintiffs advised the Court that he proposed to call a Mr Michael Simpson, the manager of Ambrose. The Court was told he would give evidence of the capacity of the Ambrose Group to pay the amount it might have been called upon to pay had the lease been surrendered back in 1991 or thereabouts. Two days later, counsel for the plaintiffs advised that the last witness he proposed to call was Mr Simpson. Mr Simpson then gave some evidence. However, it appeared there may be deficiencies in his evidence. Just before his cross-examination commenced, I had a discussion with counsel. The exchange was as follows:

"HER HONOUR: Now, before we go any further, are we going to face an argument about whether or not Mr Ambrose is going to be called?

MR TATARKA: Well, your Honour, given the comments that have been made in the course of this discussion, it seems inevitable that I would want to call Mr Ambrose to give evidence.

HER HONOUR: Mr Procter this takes us back to where we started at the beginning of the trial. Have you had any further information about Mr Ambrose's situation?

MR PROCTER SC: No.

HER HONOUR: Can I suggest counsel perhaps have a discussion about that issue because we then, depending on the availability of Mr Ambrose, might have to consider going back to what I've just loosely described as plan B, which is dealing with the issue of liability only.

MR TATARKA: Yes, I'm happy to discuss the matter with my learned friend. Perhaps if we do it after Mr Simpson's cross examination is concluded and then inform your Honour about the results of our discussion. Would that be a convenient course for the Court."

Once Mr Simpson's cross-examination was completed, the Court adjourned to allow counsel to discuss how the trial would proceed. On resumption, there was a further exchange in the following terms:

"MR TATARKA: Thank you your Honour, for the opportunity. I propose your Honour, that the plaintiff will close its case subject to calling Mr Ambrose when he is available to give evidence. Mr Ambrose's evidence will go to the issues of - effectively his - the Ross Ambrose Group Pty. Ltd's capacity, or willingness to repay a judgement, if a judgment was made against it or a call made under the surrender agreement as the case may be. I can't progress the matter because of the state of Mr Ambrose's health, that's as far as I - We are agreed that it would be preferable from the parties' point of view if your Honour would treat all of the evidence that will be led now in the next couple, now and tomorrow, as all of the evidence that the parties would lead on the question of liability and we would invite your Honour to rule on liability even though the trial has not been strictly speaking split in that way because we've got some evidence from Mr Simpson in relation to quantum but that's not all the evidence on quantum. If your Honour was minded to accede to that request the parties would ask the court to deliver a judgment on the question of liability and reserve the question of quantum to a later date. To some extent, your Honour, I might say this, that subject to your Honour's convenience if it transpired that in eight weeks time your Honour had not yet delivered judgment, I'm assuming your Honour will reserve, had your Honour not delivered judgment in eight weeks time Mr Ambrose is ready and available but in the utility of waiting until your Honour was ready to deliver judgment on liability might not be any longer, something that we'd want to pursue, we might as well hear Mr Ambrose and deal with his evidence then. Because of his health, I'd like to get him on as soon as he's available but to some extent that would be moulded by matters that are entirely in your Honour's hands and matters which we don't intend to trespass upon.

HER HONOUR: Right, so effectively, I suppose basically if I can come up with a judgment on liability before Mr Ambrose is available -

MR TATARKA: Yes, we'd invite your Honour to deliver that and if not hear Mr Ambrose and then deliver judgment in the normal way on all of the issues.

HER HONOUR: Mr Procter.

MR PROCTER SC: Yes, I'm content with that, your Honour.

HER HONOUR: Right, well it's somewhat unusual and I suppose I'm not really making an order for a split hearing but I don't see any objection to dealing with that, they are discrete issues. All right, I'll deal with it on that basis.

MR TATARKA: With that caveat, your Honour, that's the close of the Plaintiff's case."

8 The defendants then presented their case and both counsel made closing submissions in relation to liability only. My decision was reserved. It was delivered on 18 September 2009, without there having been any request to resume the hearing and take evidence from Mr Ambrose. The Court found for the plaintiffs.

9 In February 2010, the solicitors for the defendants asked for the matter to be relisted for the making of directions. It became apparent at the directions hearing which followed that the plaintiffs were seeking to adduce, not only evidence from Mr Ambrose in relation to the issue previously identified, but also evidence from a valuer and a liquidator. The defendants opposed that on the basis that there had been an agreement entered into between the parties through their counsel at court on 22 July 2009 that the plaintiffs would close their case on the basis of their being able to call at a later date Mr Ambrose only to deal with the issue of quantum.

10 Counsel for the defendants conceded that, even if I were to be satisfied that the plaintiffs had entered an agreement as asserted, it did not preclude them from making an application to re-open their case to permit them to adduce the evidence of the valuer and liquidator. The existence or otherwise of the asserted agreement would be a factor to be considered in the exercise of my discretion as to whether the plaintiffs should have leave to re-open. The parties were not in dispute about the capacity of the plaintiffs to re-open their case and lead evidence from Mr Ambrose for the purpose of determining the question of quantum.

11 A hearing therefore proceeded as if it were an application by the plaintiffs to re-open their case. The plaintiffs relied on an affidavit of Mr Colin Adams, their solicitor. The defendants relied on an affidavit of Mr Timothy Ellis, one of the defendants. Subject to some objections taken as to the admissibility of some of the affidavit material and rulings made in respect of those objections, the affidavits were read into evidence. Mr Adams was also the subject of some cross-examination. Counsel for the plaintiffs also handed up a statement of Mr Cubbins, a valuer, and a report from a Mr Cook, a liquidator. This material was to form the basis of the evidence sought to be adduced by the plaintiffs beyond any evidence of Mr Ambrose. While counsel for the defendants had been aware of Mr Cubbins' material, he had only seen Mr Cook's report the day before the hearing and had not had an opportunity to discuss it with his clients.

The evidence sought to be adduced at the continuation of the trial

12 The first document provided by counsel for the plaintiffs, being a statement by a valuer, had attached to it a number of other documents. These were real estate valuations of the Village Family Motor Inn at Prospect, 107 Brisbane Street, Launceston, the Olde Tudor Shopping Centre at Prospect, a group of warehouses at Trotters Lane, Prospect and the Olde Tudor Motor Inn at Prospect. Also attached was an email from the plaintiffs' solicitor to Mr Cubbins and balance sheets and profit and loss statements for Deming No 84 Trust for the years ended 30 June 1992 to 1994, an asset schedule for Ambrose and the balance sheets for Ambrose for the years ended 30 June 1992 to 1994.

13 The second document, being the report from the liquidator Mr Cook, referred to the fact that he had been supplied with balance sheets for Ambrose and a second company Deming No 84 Pty Ltd ACN 010 229 991.

14 While the material relating to Ambrose has relevance to the issue to be determined because it is a company which had a potential obligation under the second agreement, I am unable to determine the relevance of any material relating to Deming No 84 Trust or Deming No 84 Pty Ltd on the basis of evidence presently before me. Neither of those entities had any obligation under the second agreement.

Was there an agreement as to the basis upon which the plaintiffs could re-open their case?

15 The portions of transcript of proceedings set out above show clearly the statements by counsel for the plaintiffs to the effect that he was closing his case subject to his ability to call Mr Ambrose at a later stage. The trial transcript at 128 records that counsel for the defendants were content with that. Neither counsel put to the Court that there had been an agreement reached that the defendants would agree to the matter being dealt with in this way, that is on the basis that the only further evidence would be that of Mr Ambrose.

16 As to whether that agreement was made, Mr Ellis' affidavit evidence was unchallenged. He said that he was a party to discussions during which counsel for the plaintiffs suggested that the plaintiffs be allowed to close their case subject to their being allowed to re-open to call evidence from Mr Ambrose if he was well enough. After counsel for the plaintiffs made that suggestion, he withdrew from the discussion. Counsel for the defendants was then instructed to agree to this, but on condition that only Mr Ambrose be called. Counsel conveyed that to counsel for the plaintiffs who agreed with the condition. The only other evidence of discussions held between counsel and parties during an adjournment on 22 July 2009 was from Mr Adams. He supported Mr Ellis insofar as the proposal put by the plaintiffs' counsel and the defendants' counsel's agreement to that. However he did not hear, and is not in a position to dispute Mr Ellis' evidence as to the defendants' instructions to their counsel and the precise nature of the agreement put to the plaintiffs' counsel.

17 That there was such an agreement is consistent with other facts. At the time this agreement was said to have been reached, the plaintiffs were already aware that Mr Ambrose was not then available as a witness and that his future availability was uncertain. They had an opportunity to consider, both before and after the directions hearing on 20 July 2009, what their options were. Clearly it was open to the plaintiffs at that point to seek that the trial be adjourned. They did not take that course of action. A decision was taken to proceed with the trial and call, instead of Mr Ambrose, a Mr Simpson. Counsel for the plaintiffs then called Mr Simpson telling the Court he was the last witness. It was not until some uncertainties arose as to the effectiveness of Mr Simpson's evidence that the question arose as to whether Mr Ambrose should indeed be called. There was no indication at all that the plaintiffs might want to consider calling evidence other than that of Mr Ambrose. The capacity of the plaintiffs to call the evidence they now seek to call existed at 22 July and indeed prior to the commencement of the trial.

18 It is obvious from Mr Ellis' affidavit that he and his fellow defendants had considered whether even the evidence of Mr Ambrose would be sufficient to deal with the issue it was intended it address. He had seen the evidence of Mr Simpson and had no doubt formed a view about that. Mr Ellis held the view that, against that background, it could be advantageous to the defendants to restrict the evidence to be led as to quantum to that of Mr Simpson and Mr Ambrose. The opportunity to do that and have the trial proceed was presented with the proposal put by counsel for the plaintiffs. A tactical advantage could be gained by limiting the nature of the evidence.

19 At the point in the proceedings at which counsel put the proposal to re-open to adduce Mr Ambrose's evidence, it was still open to counsel for the plaintiffs not to close the plaintiffs' case at all, but instead to seek an adjournment. That course of action was not taken and no indication was given at that point that the plaintiffs might wish to call other evidence.

20 I am satisfied in the circumstances that there was an agreement that the plaintiffs could close their case and later re-open it, but only for the purpose of adducing evidence from Mr Ambrose.

21 That is not however the end of the matter, since the existence of such an agreement is only one matter to be considered in the exercise of the Court's discretion as to whether leave should be given to the plaintiffs to re-open their case to adduce evidence, not only from Mr Ambrose, but also from Mr Cubbins and Mr Cook.

22 Counsel referred to a number of authorities. It is clear that, in dealing with applications such as the present, the courts distinguish between applications made after judgment and applications made during the course of a hearing. It is usually more difficult to obtain leave in the former situation. The present case does not involve a situation where a final judgment has been given resolving the entirety of the dispute between the parties.

23 In Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471, the Court of Appeal in New South Wales dealt with an application to re-open and considered the various circumstances where leave might be sought and the consequences of different reasons for not initially calling evidence. In this case, the application to re-open was made after the party who later applied had closed their case and, there being no case in reply, commenced a closing address. Clarke JA, with whom Mahoney and Meahger JA agreed, said at 475 - 476:

"The first observation I would make is that the respondent would not have been prejudiced in any way by the grant of the application. Although his Honour indicated that the respondent had raised prejudice in opposition to the application it is difficult to discern upon what basis such a claim could have been founded. The evidence concluded when the appellant closed its case and all that occurred between the closing of the case and the application was that the appellant's counsel addressed his Honour. In this respect the case is to be distinguished from one in which the plaintiff seeks leave to re-open his case in chief after evidence has been called by the defendant or one in which the defendant seeks leave to re-open its case after evidence has been called in reply by the plaintiff. In either of those cases events may have occurred which might render it unjust to allow the party seeking the indulgence to call further evidence. Here all that occurred was that some time had passed between the closing of the defendant's case and the application by the defendant to call a witness. In these circumstances it is difficult to perceive any reasons which would support the conclusion that the interests of justice favoured the refusal of leave.

...

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.

... 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 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 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.

Similar views were expressed by Sheppard J in Joyce v GIO (NSW) (Ritchie's Supreme Court Procedure, New South Wales, vol 2 [13,028]) and Jeffery J in Henning v Lynch [1974] 2 NSWLR 254. It is the fact, as Sheppard J observed in Joyce, that there are a number of decisions which support the view that the principles relating to the calling of fresh evidence on appeal are relevant when what is under consideration is an application to re-open. That view may be correct where the application to re-open is made after the delivery of judgment but I can see no justification for importing those principles into an application to re-open which is made before the hearing is concluded: see Smith v New South Wales Bar Association [No 2] [1992] HCA 36; (1992) 66 ALJR 605 at 608-609; [1992] HCA 36; 108 ALR 55 at 61-62 of the judgment of Brennan, Dawson, Toohey and Gaudron JJ.

In Henning, the late Jeffrey J said (at 259):

'... The applicable principle is one which in the circumstances obtaining here strongly favours the re-opening of the prosecution case: where the defendant's case has not been gone into and there is ready to be tendered some additional evidence which by accident, mistake or want of foresight has not been tendered before the prosecution case is closed it is - to use the words of Cave J in Hargreaves v Hilliam (1894) 58 JP 655 "a very fit and proper thing to allow the evidence to be given unless there is some very good reason".'

That particular statement was approved by this Court in Brown v Petranker (1991) 22 NSWLR 717 and accurately expresses the principle which should have been applied by his Honour."

24 In Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22, Kenny J in the Victorian Registry of the Federal Court of Australia, dealt with an application to re-open in circumstances where a judgment had been delivered and the applicants had taken a deliberate course of action in relation to certain evidence. Her Honour declined to give leave and identified, at par28, what she described as weightier factors militating against a grant of leave. She identified these as follows:

The applicants deliberately chose not to quantify the Commonwealth's loss at the first hearing, perhaps because they believed that they could not do so (see their letter of 27 August 2004) or for some other reason. This factor, though not conclusive, is a significant one.

Prior to the first hearing, the applicants had plainly led the respondents to believe that the applicants were proceeding on the basis that quantum was irrelevant and, in any case, that the loss could not be quantified.

The applicants opened and closed their case on the basis that they had not quantified their loss and did not need to do so.

The applicants did not make any application for a split trial, whether by the preliminary determination of a separate question under O 29 r 2 of the Federal Court Rules or otherwise, although it was open to them to do so.

By their correspondence and their conduct before and at the first hearing, the applicants led the respondents to understand that they had presented the totality of their evidence at the first hearing.

Before the first hearing, the applicants knew that it would be said against them that they could not succeed without evidence quantifying their loss.

The respondents prepared, planned and conducted their case on the basis that the applicants would not present quantification evidence. This factor is also significant. In the belief that the applicants were not going to present quantification evidence, Bradshaw contended that the applicants could not succeed without such evidence. As counsel for Bradshaw observed, if the applicants had provided the respondents with some evidence of the quantum of their loss, the respondents might have taken a different view of their claim for payment under the bond. Had he not been led to believe that there would be no evidence of quantification, Bradshaw would presumably have conducted his case differently.

Whilst there were no pleadings, the issue in debate was clearly addressed in the correspondence between the parties prior to the first hearing.

In circumstances where the applicants had full knowledge of the considerations relevant to their conduct and proceeded on a particular basis, the public interest in the finality of litigation weighs strongly against permitting them to depart from that basis: compare Silver Fox Co Pty Ltd as Trustee for the Baker Family Trust v Lenard's Pty Ltd (No 2) [2004]FCA 1310 at [25] and the cases there cited."

25 Counsel for the plaintiffs also referred to a decision of Cox J (as he then was) in Graham Taylor v Geoffrey Voss [1995] TASSC 9 where, at par8, when dealing with some remarks by a magistrate whose decision was under review, he said:

"With respect, it is not appropriate to categorise as prejudicial to the defence the circumstance that the grant of an adjournment will facilitate formal proof of some fact necessary to establish the prosecution case, whereas a denial of it will lead to the dismissal of the complaint. Prejudice in this context means prejudice in the fair conduct or presentation of the defendant's case."

26 Subject to my comments in pars12 - 14, the evidence sought to be adduced relates to the value of real estate said to be owned by Ambrose and capable of being used to fund any obligation under the second agreement. The evidence of the liquidator goes to the issue of the value of the assets were the company liquidated. I accept that the evidence is relevant to the issue to be determined by the Court. Without knowing what evidence is to be led from Mr Ambrose himself, it is difficult to determine precisely what impact the evidence will have on the matter to be determined. However I accept it has the potential to have a significant impact.

27 As to the failure of the plaintiffs to produce this evidence at the trial, it is not clear on the evidence before me that any conscious decision was made at the time of trial not to produce the evidence. It appears more likely that a view was held that the evidence was unnecessary given the other evidence sought to be led. The decision to seek to call the evidence was not made until some time after the first part of the trial.

28 Counsel for the defendants submitted that there was prejudice to his clients in that, by entering into the agreement to permit the plaintiffs to close their case on a specific basis, they had bargained away a right to oppose any adjournment of the trial to allow the plaintiffs to call more evidence. It seems clear that a tactical decision was taken to reach that agreement, the effect of which would be to limit the evidence on quantum and potentially allow them to argue that the Court could not be persuaded the plaintiffs had proved they had suffered loss. No other prejudice was suggested.

29 The trial in this matter began in July 2009. There has been no explanation as to why it is only now, that is, some nine months later, that the plaintiffs say they are ready to proceed. I accept that that delay would have proved difficult for the defendants given the findings already made. However, from the Court's perspective, no application was made for the matter to be relisted for directions to force the issue until February this year.

30 If the plaintiffs are given leave to re-open, the defendants would also be given the opportunity to present any evidence in response should they feel the need to do so. That ability would address any question of prejudice which might arise from the evidence being given. As to the prejudice identified in par28, given the relevance of the evidence to the issue at hand, given it relates to a discrete issue about which evidence was to be led in any event, and given the ability the defendants will have to present evidence in response, I am not persuaded that could be said to be prejudice to the defendants such as should override the general consideration of whether it is in the interests of justice to allow the application.

31 In the circumstances, I am satisfied that it is in the interests of justice that the plaintiffs have leave to re-open their case as to quantum to lead the evidence foreshadowed. Counsel for the plaintiffs indicated at the hearing of this application that he would be ready to present the evidence within the next fortnight. I will hear counsel for the defendants as to that with a view to listing the further hearing of the trial as soon as is possible.