Shaw v Niru Construction Pty Ltd & Anor

Powers and Principles

1. Sections 58(1)(a)(ii) and 66 of the Civil Procedure Act 2005 (NSW) (the 'CP Act') specifically empower the court to adjourn proceedings.
2. In deciding whether to adjourn, the court must have regard to the overriding purpose of the management of civil proceedings of facilitating the just, quick and cheap resolution of the real issues in the proceedings (s 56), as those purposes are elaborated in s 57(1) and is to act in accordance with the 'dictates of justice' (s 58(1)). This latter expression subsumes consideration of ss 56 and 57, but also encapsulates a non-exhaustive list of considerations in s 58(2), including: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case.
3. I note that in the Court's Practice Note dealing with Case Management of matters in the General List, Practice Note DC (Civil) No.1, at paragraph 1.1, it is stated that this Court's aim is to have new cases completed within 12 months of commencement.
4. I further note that in Schedule 1 to the Practice Note (Standard Orders for Hearings), this Court's attitude towards adjournment applications is clearly indicated to practitioners: "13. All cases should be ready to proceed on the hearing date. Parties must expect that cases that do not finish within the estimate provided to the Court will continue until concluded. … 14. Subject to sections 56-60 of the CPA, hearings will only be … adjourned where there is very good reason. This must be demonstrated by the party seeking the .. adjournment…"
5. As some of the cases and commentary referred to in [s 66.5] in Ritchie's Uniform Civil Procedure (NSW) indicates, case management considerations may be such that adjournment applications have been refused in circumstances where parties wish to obtain additional evidence that should have been obtained earlier. At [s.66.5], the commentary referred to a decision of the High Court, in Bloch v Bloch (1981) 180 CLR 390 where it was observed that the inconvenience of a witness, as distinct from the physical inability to attend, was unlikely to justify an adjournment.

Further elaboration of the factual context: the potential materiality of Mr Chaloub's evidence

1. Before turning to the statutory considerations identified, it is appropriate to consider the materiality of the evidence which might be elicited from Mr Chaloub.
2. As indicated, the alleged accident occurred on 31 January 2017. In their pleaded Defences, the defendants put the plaintiff to proof that the metal post was in situ in the premises. They also ran alternative defences (premised upon the metal post being in situ) that its presence represented an obvious or inherent risk of harm, which impacted upon the scope of any duty of care. They also ran, in the alternative, a defence of contributory negligence also premised upon the post being there.
3. The plaintiff gave evidence that he stumbled on a metal post on the Moree Avenue property. He called two witnesses (Mr Rochester and Ms Fitzpatrick) to corroborate the plaintiff's account that the post was there.
4. Neither of the two witnesses presently called by the defendants, Mr Payne (who installed the drain) and the second defendant (who was the director of the company carrying out the works), purported to say that they could disprove that the post was there at the time that the plaintiff and his witnesses said it was.
5. After Mr Mahendran was called, Counsel for the defendants asked him (without objection notwithstanding that it was a leading question) whether he had employed Mr Chaloub and the witness said that Mr Chaloub had engaged him as a sub-contractor. Counsel for the defendants asked the second defendant to identify the work that Mr Chaloub had done, which the second defendant did, and elicited that Mr Chaloub had rendered an invoice and that the second defendant had paid it. (For the purposes of this adjournment application only, I infer that the invoice was the document at page 1274 of the Joint Court Book - not tendered in the defendants' case, but which was spoken about by Mr Renshaw in the course of arguing the adjournment application. That invoice was dated 7 November 2016, over a couple of months before the subject accident).
6. Counsel for the defendants refrained from asking the second defendant what inquiries he had made of all of sub-contractors engaged in the works, including Mr Chaloub, as to the condition of the Moree Avenue premises after learning of the accident. He also refrained from asking the second defendant the period over which Mr Chaloub worked on the site.
7. Shortly after Ms Welsh commenced to cross-examine the second defendant, she asked him about his response to the subpoena to produce (Exhibit W). That subpoena was 'returnable' for 8 December 2020.
8. Categories (i), (ii) and (vi) of the Schedule to that Subpoena required production, respectively, for: "i. All documents including investigation reports, witness statements, incident reports, claim reports, claim forms, injury reports, accident reports and any other related correspondence … concerning an accident at location (in the vicinity of 'the Moree Avenue property' for the period 31 January 2015 to date. ii. Any documents relating to any complaints, reports or investigations concerning the general condition and safety at location.. ….. vi. All job records, inspection reports, job log activity, maintenance records, jab requisitions
9. Counsel for the defendants did not seek to adduce evidence from the second defendant, in re-examination, explaining why, with reference to his response to the subpoena to produce (Exhibit W), he had not produced any document that bore Mr Chaloub's name, within any of the above categories, or any other category, in the Schedule to the Subpoena.
10. The second defendant said that Mr Chaloub worked outside the property where the incident occurred. The suggestion was eventually made in the course of the cross-examination that Mr Chaloub had used star pickets of the kind upon which the plaintiff had stumbled over.
11. As noted, Mr Renshaw disclosed that he had conferred with Mr Chaloub prior to the hearing of the matter, which commenced on 23 August 2021; and the plaintiffs had procured a Subpoena for him to attend to give evidence at that hearing. To reiterate, Mr Renshaw said he was aware from early yesterday that Mr Chaloub had become indisposed and that during the course of the day, he understood that Mr Chaloub might have a history of strokes.
12. Yesterday (at T 167.46), Counsel for the defendants opened argument on the adjournment application in the following way: "RENSHAW: Good afternoon, your Honour. Your Honour, after the evidence of the last witness, I had been content to rest, but my instructions are that we should try to call Mr Chaloub …" (emphasis supplied)
13. Further (at T 170.39) I had the following exchange with Counsel for the defendants: "HIS HONOUR: Can I just ask you this Mr Renshaw, why was it not the case that ascertaining as you did, that this witness wasn't in disposed (sic) today, why wasn't this mentioned earlier today? RENSHAW: Because I didn't anticipate necessarily the way that the cross‑examination with Mr Mahendran would go, and the implication that my learned friend was going to make an inference, such as she now abundantly is and I make no criticism of that. I certainly would concede that she's capable of making that submission and it's to forefend your Honour doing so with the possibility of an adverse inference, cause failing to call him and in light of those questions she asked of Mr Mahendran." (emphasis supplied) Then at T 171.14, Mr Renshaw went on to argue: "..in the light of the way that the cross‑examination went and the inferences that could be drawn, it became in my opinion as counsel conducting the matter on behalf of the defendant, important and over lunch we sought instructions from our principal, who instructed us unequivocally to call Mr Chaloub and needless to say that was a matter that had to be referred back. Your Honour would be, only too well aware from your Honour's practice that in matters involving certain forms of defending, it's important that you get firm instructions as to what their wishes are." (emphasis supplied)

The evidence of incapacity

1. Although it bears the input of a medical practitioner whose provider number is supplied, for medical certificates to carry persuasive weight in support of an adjournment application, it is important that they establish "whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing": NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 at [6]; followed in Bobolas v Waverley Council (2016) 92 NSWLR 406 per McColl JA at [210]-[220]. Plainly, Mr Chaloub was capable of travelling to the medical practitioner's practice so the question is, in the absence of any other evidence, whether the content of the certificate, accepting it at face value, is such as to show that he would be unable to 'participate effectively' in the hearing. I am not persuaded that it does. There was no description of the symptoms which might suggest something essentially serious about headaches, such as the suddenness of the onset of the headaches, slurred speech, dizziness, nausea or difficulties in seeing which might point to a matter for neurological concern. A reference was made by Dr Ong to Mr Chaloub's "history of stroke" but the certificate itself does not indicate whether Dr Ong was intending to refer Mr Chaloub for further investigation, nor what Dr Ong had recommended to Mr Chaloub that he should do; and there was no other evidence; notwithstanding the indication I supplied to the defendants' Counsel that the Court expected to receive information as to why he could not participate remotely.
2. Whilst I can accept that headaches may potentially hinder a person's capacity to concentrate, to some degree, there is no suggestion within the certificate, or otherwise, that the headaches could not be temporarily relieved other than by self-treatment such as the taking of paracetamol. This is relevant to the next point, concerning the anticipated length of his evidence.
3. Having regard to the relatively brief nature of the evidence of the defendants' witness (Mr Payne, see T 151-154), I do not expect that the time taken for Mr Chaloub's expected evidence would be long. I acknowledge that the second defendant's evidence was slightly longer, but he was a party and that would be expected. As noted elsewhere, the only documentary reference to Mr Chaloub in a three-volume Joint Court Book (running to 1278 pages) out of which the exhibits emerged, was a single invoice.
4. I am not persuaded on the evidence on this application, in other words, that he was incapable of enduring a relatively short period of time to give evidence.
5. As I indicated yesterday to Counsel, no differently to the other witnesses, Mr Chaloub would be expected to give evidence remotely. There was no indication that he did not have the technology available to give evidence remotely at a place of his convenience.
6. I therefore reject the application on the state of the evidence of his incapacity.
7. But against the possibility that I am wrong to decline the adjournment application on the basis of this evidence alone, I will turn to other matters. I begin my consideration of this application with reference to the overriding purpose and the considerations in s 57.

The case management considerations

1. This accident occurred in January 2017. It only commenced in January 2020. The defendants are not responsible for that substantial delay. The relevant starting point for consideration of delay is the commencement of the proceeding, in January 2020.
2. The matter came on for hearing in August 2021, which, although it fell beyond the ideal period of time expended to ready the matter for hearing, relative to when a proceeding commenced, is not the most excessive period of time between the commencement of an action and a hearing that this Court has seen. As indicated, neither party is responsible for the period of delay from 25 August 2021 to 28 October 2021.
3. A concern for the Court, however, as pointed out to the parties' Counsel on 6 September 2021, is that if the matter goes over beyond 29 October 2021, it would not be relisted until term commences in February 2022. The commitments of the parties' Counsel have not yet been ascertained.
4. The consequence of acceding to the adjournment not only means inherent further delay (and inherent derogation from the principle of a quick determination of the case), but means that the proceeding will not have been finalised until at least two years since the commencement of the proceeding. Allowing for the period of two months for the adjournment of the hearing from August 2021, that is a not insubstantial period of time for an action like this.
5. With reference to s 57(b)-(d), it does not conduce to the efficient disposal of court business to have the proceeding adjourned a second time. It is not easy for a judicial officer (or, for that matter, legal representatives for parties) to repeatedly pick up part-heard matters after they have been adjourned multiple times. Other cases intrude. For the parties themselves, there is a cost in practitioners having to refresh their minds about the case before it resumes again. Although in this case, I acknowledge, the defendants have offered to bear this aspect of their costs and also those of the plaintiff so the concern about costs to the parties is diminished. Judicial resources will however, be taken away from the cases of other litigants. That is no small thing given the backlog of cases (especially criminal trials) arising from the Pandemic over the last two years.
6. I turn to the considerations in s 58(2). This is not an exceptionally complex personal injuries case, although liability and damages are in dispute. The adjournment is requested because of an issue of liability; not damages. The plaintiff, as respondent to the adjournment application, did not point to any shortcoming in the way that the defendant applicants have approached the proceeding from the point of view of expedition, or any deviation from the defendants, or their legal representatives', own obligations under s 56(3) of the CP Act. Nor does the plaintiff say that the defendants could have taken advantage of procedural requirements to alleviate the present problem that might enliven the consideration in s 58(2)(v).
7. Finding, as I do, that the application will generate delay and is not conducive to the efficient disposition of the resources of this Court, the pivotal question centres upon my evaluation of the adjournment from the point of view of the just determination of the proceeding. Included within that is the degree of injustice that would be suffered by the defendants if the adjournment is not allowed. To my mind, 'justice' imports not only substantive aspects, but also procedural aspects. It is one thing to say, for example, that it may be unjust if a party is unable to call a witness who may have evidence material to its defence. But it may be another thing if, by reason of the way the party has conducted itself, it has contributed to its own difficulties.

Likely consequences if Mr Chaloub does not give evidence

1. I find, first, that it is likely that Mr Chaloub may have relevant evidence to give. This is apparent from the content of the second defendant's evidence. It is also indicated by Counsel for the plaintiff's indication that she would seek a Jones v Dunkel inference if Mr Chaloub was not called, since inferences of that kind are only drawn when it is established that the missing witness may have had something to say (and had been expected to say it) on a material issue. He could say that he knew nothing of the metal post when he was working on the site. However, on the basis of the evidence I have heard thus far, and contrary to a submission advanced for the defendants, I am not convinced that this would exhaust the universe of possible subcontractors who were involved in the insertion of the post. The second defendant gave evidence that he had up to three subcontractors working on this job, but that seemed to me to be a rough guess and, importantly, no contemporaneous documentary record was produced on a subpoena which was demonstrated to have drawn out such record, which might have confirmed that vague recollection.
2. I do not accept the correctness of the submission advanced by Counsel for the defendants that he did not, or perhaps relevantly, could not, have anticipated the way that the cross-examination of the second defendant would go, in the sense of his being caught by surprise. In fairness, when making this submission, Counsel used the qualifier word "necessarily". But in circumstances where:

• he had conferred with Mr Chaloub about his evidence before trial (in August);
• he, and/or other legal representatives for the defendants, knew that Mr Chaloub had been the subject of a subpoena to attend;
• most of the second defendant's evidence in chief was directed to Mr Chaloub (T 155-156) notwithstanding that (according to my recollection, at least) his name had not previously been mentioned in the hearing;
• he did not ask the second defendant the date, or dates, in which Mr Chaloub had supplied his services;
• immediately after the cessation of the second defendant's evidence he had declared to the Court that his clients' case was closed, in circumstances where he was "content" to rest his clients' case. I infer that a practitioner as experienced as Mr Renshaw knew of what Mr Chaloub might say but had taken forensic decisions to try to adduce evidence relating to him by other means with a view to avoid calling him. That was until, after the second defendant had completed his evidence, when he received instructions to bring the application. At any rate, given the manner in which Counsel led evidence from the second defendant, I reject the notion that he could not have anticipated that Counsel for the plaintiff might question the second defendant about Mr Chaloub's involvement. Did Counsel for the defendant seriously expect that Counsel for the plaintiff might leave the second defendant's evidence in chief, to the extent it alluded to Mr Chaloub, unchallenged?

1. There is an additional circumstance - the response to the subpoena (Exhibit W). Mr Renshaw refrained from adducing evidence from the second defendant as to why no relevant document had been produced indicating Mr Chaloub's involvement in any accident or incident report of what had occurred at the Moree Avenue property, in January 2017.
2. The categories of the Schedule noted earlier in these reasons (and, in particular, any witness statements) clearly would, if properly responded to, drawn out any investigation conducted on behalf of the defendants and Mr Chaloub's potential involvement in it.
3. In circumstances where in the Joint Court Book the only document (not, incidentally, tendered in the defendants' case in the proceeding) bearing his name was an invoice dated 7 November 2016, this means that on the hypothesis that Mr Chaloub gave evidence for the defendants that he did not leave behind a metal post on the property: 1. he would be doing so on the basis of events up to approximately 5 years ago, 2. it appears, prima facie, he had provided the defendants with no prior witness statement in any investigation conducted by or on behalf of the defendants, which, for present purposes, it might have been expected would have been conducted by them.
4. It is relevant in procedural applications, particularly with a view to evaluating questions of 'practical injustice' to compare the strength of the parties' respective cases on a relevant issue, at least in an impressionistic sense (Jackamarra v Krakouer (1998) 195 CLR 516 at 519). On that comparison, the plaintiff has given evidence, supported by two other witnesses, that the post was there, on a certain date. Set against this is the evidence of two witnesses for the defendants (one of them a party witness) who, as indicated, were scarcely in a position to disprove that it was there on the date in question. Given the absence of logs of workers on the site identifying when Mr Chaloub was on the site on a date or dates closely temporal to the date of the accident being produced on subpoena (Exhibit W), in prospect, it appears that the same thing might happen with Mr Chaloub. Viewing the matter only impressionistically, the prospect of Mr Chaloub giving compelling evidence that the post was not there on or about 31 January 2017, is very remote. Given that there is other evidence (T 165) to suggest that the works were not completed by the date of the accident, in prospect at least, there is prima facie evidence that the post was left in situ as a result of the conduct of employees, agents or sub-contractors of the first defendant.
5. In all of the circumstances, I am unable to find that, on the evidence on the application and in the hearing at large (and evidence which was not, and could have been before the Court), the inability to call Mr Chaloub would likely make all the difference to the defendants. Presumably, his potential recollections (apparently not reduced to any contemporaneous account) about a negative - that the post was not there - would have to be weighed against the positive evidence of three witnesses for the plaintiff that it was. That assessment would also have to be made in circumstances where, aside from the second defendant's vague recollection about the number of subcontractors, there was no log of workers which might more persuasively delineate the universe of how many subcontractors there were and when they worked. In other words, even if Mr Chaloub's presumed hypothetical evidence, that the post was not there at the time he was working on the property, were to be accepted, the defendants would not appear to be in a position to persuasively argue that there was no remaining possibility that any of the subcontractors or employees of the first defendant may have been responsible for leaving the pole in place. That might be a difficult position to contend for, in any event, given the similarity between the description of the pole upon which the plaintiff says he stumbled and the photographic evidence of other poles used during the construction works (Exhibits B and C).

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