Re-opening the plaintiff's case: Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 28) [2013] VSC 523

The matter of Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 28) [2013] VSC 523 was an application, in the bushfires class action, to re-open the plaintiff's case during the trial. The plaintiff sought leave to re-open her case to tender a coach screw found by a metal detector. The defendants opposed the application on the basis that it was too late and the evidence was of little or no probative value. His Honour J Forrest J gave the plaintiff leave to re-open her case and discussed the principles concerning re-opening a case, an extract of which follows.

19. The relevant question raised by the application is whether, on the whole, it is in the interests of justice that leave be granted for Mrs Matthews to re-open her case. 

20. The position in relation to re-opening a case after the close of final submissions or judgment has been delivered is clear. In Spotlight Pty Ltd v NCON Australia Ltd[12] the Court of Appeal agreed with the opinion of Kenny J in Inspector-General in Bankruptcy v Bradshaw[13] that there are four recognised classes of case in which a court may grant leave to re-open a party’s case:[14]

The four classes (with which we respectfully agree) are: (i) where fresh evidence, unavailable or not reasonably discoverable before, becomes known and available; (ii) where there has been inadvertent error; (iii) where there has been a mistaken apprehension of the facts; and (iv) where there has been a mistaken apprehension of the law. 

These classes are not closed; but the present case shares with Bradshaw the distinction that it falls into none of them, and no applicable new category is suggested. The overriding principle is that the court consider whether, taken as a whole, the justice of the case favours the grant of leave to reopen. We are satisfied that, in the present, it does not.

21. This year Sifris J dealt with an application by a plaintiff to re-open its case in Nicholson v Hilldove Pty Ltd & Ors.[15] In that case the application was made after the trial of the proceeding and reasons for judgment had been handed down. His Honour reviewed the authorities and said:[16]

The authorities establish that the existence or discovery of fresh evidence alone is not sufficient to re-open the case. If this were not so decisions would be “of a provisional character only”. Rather, public policy requires a more “stringent rule”. Accordingly a party seeking to re-open a case on the grounds of fresh evidence is required to show “that there was no lack of reasonable diligence on his part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict”.

22. Each of these cases involved re-opening a case after final submissions and in two of the cases (Bradshaw and Nicholson) after the judgment. It is clear that a very powerful reason is required and, of course, one that satisfies the criteria set out by the Court of Appeal in Spotlight. However re-opening a case whilst the trial is still underway is a different kettle of fish altogether. 

23. The High Court in Smith v New South Wales[17] referred to the considerations relevant to determining whether to permit the re-opening of a case during the course of a trial:[18]

If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one in which reasons for the judgement [sic] have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised.

24. Thus the primary consideration is whether the interests of justice require that the application be allowed. In this state the Court’s broad powers of case management under the Civil Procedure Act 2010 (Vic)[19] need to be noted: to achieve the objective of ‘[facilitating] the just, efficient, timely and cost-effective resolution of the real issues in dispute’ the Court may make any order or give any direction with regard to the objects listed in s 9(1)[20] including (a) the just determination of the civil proceeding and (c) the efficient conduct of the business of the court. 

25. Section 49(1) of the CPA also gives the Court the power to ‘give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding’ before a hearing commences or during a hearing.'

In granting leave, His Honour considered that:

• The delay in searching for the screw was explicable.
• The failure to tender the screw earlier was the result of a misunderstanding or misjudgment of counsel.
• The evidence was relevant, and in so finding His Honour said, 'It merely requires the court to ask: could the evidence if accepted, affect the probability, even indirectly, of the existence of a fact in issue in the proceedings? There need only be a minimal logical connection between the evidence and a fact in issue. It is important not to confuse relevance with sufficiency or weight (at [45]).'
• Any prejudice in re-opening the case would be minimal, and it was particularly important that the plaintiff submitted that it was not intended to conduct an expert analysis of the screw and therefore avoid 'instigating another battle of expert evidence'.

Browne v Dunn: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525

The matter of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 was an industrial action in the Federal Court of Australia (Victorian Registry) before Murphy J.

An interesting part of this decision is a question about the fairness rule in Browne v Dunn [1894] 6 R 67. The respondents submitted that because the applicant didn't put to their witnesses in cross examination that they were being untruthful, the rule in Browne v Dunn was breached and they were therefore denied procedural fairness. Murphy J considered that the respondents misunderstood the rule, and considered that because of the pleadings, witness statements and written opening that had been filed and relied on, notice had been given of the applicant's case:

The rule in Browne v Dunn

245. In reliance on the rule in Browne v Dunn [1894] 6 R 67 (“Browne v Dunn”), the respondents allege a lack of procedural fairness in that the applicants sought to impugn the credit of Mr Street and Mr Wiltshire but did not directly put to them in cross-examination that they were being untruthful. They describe the cross examination of these witnesses as “peripheral” and “willing to wound, but afraid to strike”: Reid v Kerr (1974) 9 SASR 367 at 374. They contend that Mr Street and Mr Wiltshire were not given adequate opportunity to deny that they had been untruthful in giving certain evidence, and that the respondents were therefore not adequately put on notice of the case required to be met.

246. In the formulation of the rule in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 16 (“Allied Pastoral Co v FCT”), Hunt J said:

It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn… 

At 22 to 23 his Honour continued:

… There are many reasons why it should be made clear, prior to final addresses and by way of cross-examination or otherwise, not only that the evidence of the witness is to be challenged but also how it is to be challenged. Firstly, it gives the witness the opportunity to deny the challenge on oath, to show his mettle under attack (so to speak), although this may often be of little value. Secondly, and far more significantly, it gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to have been called. Thirdly, it gives the witness the opportunity both to explain or to qualify his own evidence in the light of the contradiction of which warning has been given and also, if he can, to explain or to qualify the other evidence upon which the challenge is to be based…

247. In the present case I consider that the respondents incorrectly state the operation of the rule. InWhite Industries (QLD) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 at 216-217 Goldberg J explained:

The rule in Browne v Dunn is a rule of fairness which requires a party or a witness to be put on notice that a statement made by the witness may be used against the party or witness or to be put on notice that an adverse inference may be drawn against the witness or an adverse comment made about the witness in order that the witness may respond to that issue and give an explanation: Browne v Dunn [1894] 6 R 67 at 70;Bulstrode v Trimble [1970] VR 840 at 849; Karidis v General Motors-Holdens Pty Ltd[1971] SASR 422 at 425–6; Allied Pastoral Holdings Pty Ltd v FCT (1983) 44 ALR 607 at 623.
The significance of the rule is that it requires notice to be given of a proposed attack on a witness or on the witness’ evidence where that attack is not otherwise apparent to the witness. The rule does not require that there be put to the witness every point upon which his or her evidence might be used against him or her or against the party who calls the witness.

At 218 his Honour went on to say:

The rule does not apply, in the sense that it is not transgressed, where the witness is on notice that his version is challenged or that an inference may be drawn against him and such notice may be found in the pleadings, in an opening or in the manner in which a case is conducted: Seymour v Australian Broadcasting Commission [1977] 19 NSWLR 219 at 224-5, 236; Jagelman v FCT (1995) 31 ATR 467 at 472 -3; Raben Footwear Pty Ltd v Polygram Records Inc (1997) 145 ALR 1 at 15.

248. In Burke v Corruption and Crime Commission (2012) 289 ALR 150 a recent decision of the Full Court of the West Australian Court of Appeal, Buss JA (with whom Martin CJ and Mazza JA agreed) explained the rule in Browne v Dunn in the following terms at [180]-[192]:

[180] The rule in Browne v Dunn comprises two limbs. The first limb is that, unless notice has already clearly been given of the party's or cross-examiner's intention to rely upon such matters, a party or cross-examiner who intends to invite the court to disbelieve an opposing witness must put to the witness in cross-examination the grounds upon which the evidence is to be disbelieved. The second limb is that, unless notice has already clearly been given of the party's or cross-examiner's intention to rely upon such matters, a party or cross-examiner must put to an opposing witness in cross-examination the nature of the case upon which it is intended to rely in contradiction of the witness's evidence, especially where that case relies upon inferences to be drawn from other evidence (citations omitted).
…
[183] The first limb does not apply where the witness is clearly on notice of the other party's or cross-examiner's intention to invite the court to disbelieve the witness and the witness is also clearly on notice as to the grounds upon which it will be contended that his or her evidence should be disbelieved. The second limb does not apply where the witness is clearly on notice as to the nature of the case upon which it is intended to rely in contradiction of the witness's evidence.

249. Particularly apposite to the present case is a passage at [186] where his Honour said:

In Thomas v Van Den Yssel (1976) 14 SASR 205, Bray CJ (Jacobs and King JJ agreeing) said in relation to the general credibility of a witness (at 207):

[The] principles [in Browne v Dunn] cannot…be applied without qualification to a challenge to the witness’s credit generally…[I]n many…cases the witness must know that the other side will contend that he is not telling the truth, and even in some cases that he is deliberately not telling the truth. I cannot assent to the proposition that counsel cannot argue or the court find that a witness is deliberately giving false evidence unless the witness is asked some such question as, “I put it to you that your evidence is false”, or “I suggest that that is a deliberate lie” or the like. 

And at [192] 

Where the rule has been breached, and the tribunal of fact is a judge or a magistrate, there is no requirement that the court must accept or cannot reject evidence that has not been the subject of cross-examination. A failure to cross-examine a witness on a point does not mean that any evidence adduced in contradiction cannot be taken into account. The failure to cross-examine is merely a relevant factor to be evaluated and weighed, together with all other relevant factors in the case, in deciding whether to accept or reject the witness's evidence on the point. This is especially the case where the evidence in question is contradicted by other evidence. 

(Citations omitted.)

250. The pleadings, the witness statements filed (including in the earlier interlocutory proceedings) and the written opening all set out the applicants’ version of events. The thrust of Mr Zwart’s case before me and through earlier interlocutory hearings was that the action taken against him was not because of his conduct in the meetings, but because he tagged the forklifts on safety grounds. It has always been his case that he rejected Mr Scott’s proposed temporary measures to deal with the deficiency with the beepers. The applicants’ case has always been that the respondents’ stated reasons for taking adverse action against Mr Zwart, were not their real reasons.

251. Mr Street is a party to the proceeding represented by counsel and must be taken to be aware of pleadings and the witness statements. He was obviously on notice that his version of the reasons for the adverse action was under attack. Mr Wiltshire too must have understood the same. I have no doubt that Mr Street and Mr Wiltshire understood that the applicants contended that the respondents’ stated reasons for taking action against Mr Zwart were not their real reasons. They each displayed a good understanding of the nuances of the applicants’ case. The events of 5 August, particularly the reasonableness of Mr Zwart’s conduct, were clearly at issue between the parties. It did not require to be put to each of the respondents’ witnesses that they were being untruthful in their account: see Stern and Another v National Australia Bank Ltd (2000) 171 ALR 192 at [42]-[44] per Hill, O’Connor and Moore JJ.

252. Nor is this a case where, having not challenged the veracity of the respondents’ evidence, the applicants surprised the respondents by producing contradictory evidence. The credit attack made on Mr Street’s and Mr Wiltshire’s evidence is largely based on inconsistencies in the respondents’ evidence, and its implausibility when seen against surrounding facts and circumstances. The evidence in the proceeding was put on by way of witness statements under a pre-trial timetable.

This case is a useful reminder than in commercial cases, often the written documentation, such as witness statements, pleadings and submissions, filed and served in the proceeding before and during the trial place the parties on notice of the case to be met, and the rule in Browne v Dunn may be satisfied, or at least relaxed, as a result.

Dasreef Pty Ltd v Hawchar [2011] HCA 21 - expert reports

The matter of Dasreef Pty Ltd v Hawchar [2011] HCA 21 (Dasreef v Hawchar) was an appeal to the High Court in respect of a ruling to admit an expert's report under s79 of the Uniform Evidence Act (the NSW version). The matter is interesting because of the High Court's discussion of the matters which must be demonstrated for expert opinion evidence to be admissible under s79.

I have included a case summary and discussion below.

Oswal v Burrup Holdings Limited [2011] FCA 609 - access to company records

The matter of Oswal v Burrup Holdings Limited [2011] FCA 609 (Oswal) was a hearing in the Federal Court of Australia before Barker J. The applicant was a director of two companies which had receivers appointed, and that director wanted access to company records. The receivers opposed this.

Oswal is interesting because of the depth of the Court's consideration of the right of a director to access company documents. I have included a case summary below.

Samenic Ltd v APM Group (Aust) Pty Ltd [2011] VSC 194 - privilege in an investigator's report

The matter of Samenic Ltd v APM Group (Aust) Pty Ltd [2011] VSC 194 (Samenic) concerned an objection to a subpoena before Mukhtar AsJ of the Supreme Court of Victoria. I have included a summary of Samenic below.

At [1] Mukhtar AsJ set out the question being considered by the Court:

The Prothonotary has referred to the Court for hearing and determination an objection to a subpoena for production of documents. The objection involves something which is not uncommon in litigation where insurers are involved, that is, a litigant trying to get hold of an insurance investigator’s report after an insured incident has occurred. The question on this objection concerns legal advice privilege ― not litigation privilege ― under s 118 of the Evidence Act. Does this subpoena result in the disclosure of the contents of a confidential document prepared by another person (the subpoenaed party) for the dominant purpose of the lawyer providing legal advice to the client (the insurer)?

Expert evidence 103 - Formal report requirements

In my previous two posts 'Expert evidence 101' and 'Expert evidence 102' I discussed what expert evidence is and when it is required. When an expert is retained for the purpose of giving an opinion for the trial of a matter, the expert must prepare a report setting out his or her opinion and, if the party retaining the expert is happy with the report, the report is given to the other side in support of that party's case.

So what are the formal requirements for preparing an expert report? Compliance with the formal requirements is crucial for ensuring that the trial of the matter goes smoothly, and that there are no technical objections which could prevent a Court from admitting the report and the evidence of the expert. I have provided a discussion of the formal requirements below.

Expert evidence 102 - when do you need it and why?

My earlier post 'Expert evidence 101 - what is expert evidence' concerned what admissible expert opinion evidence is. But when is it required?

If I have a matter where an owner sues a builder because part of the owner's house which the builder constructed has collapsed, does the owner need an expert to help prove it was the builder's fault? If I have a matter in which a business is claiming lost profit because of negligent investment advice, can the Court work out for itself if the advice was negligent? Can a Court reach conclusions on the loss caused in relation to the above actions without the evidence of an expert?

Expert evidence 101 - what is expert evidence?

Admissible expert opinion evidence is evidence of a person's opinion if that person has specialised knowledge based on the person's training, study or experience, and that opinion is wholly or substantially based on that knowledge (s79 Evidence Act 2008 (Vic)).

This can be broken down into the following three mandatory pre-requisites:

1. the person has 'specialised knowledge';
2. that 'specialised knowledge' is based on 'the person's training, study or experience'; and
3. the opinion is 'wholly or substantially based on that knowledge'.

The time of service on companies - s109X and 'deemed' service

When a company owes a debt which is over $2,000, the creditor has the option of serving on the company a statutory demand for payment of that debt (demand) or suing the company for the debt. If the company fails apply to the Court to set aside the demand (because it disputes the debt) or pay the demand within 21 days of service of the demand, then the creditor may apply to wind up that company under the Corporations Act 2001 (Cth).

Similarly, when a company is sued in Court by a creditor for a debt, the company usually has a fixed time period from service of the process in which to file an appearance or a defence in response to the originating process (process) served upon it (e.g. 10 days to file an appearance, 21 days to file a defence). If the company does not take action within the specified time, then the creditor can obtain judgment by applying to the Court.

So what is the position when a creditor believes that a demand or process was delivered a day or more earlier than the company says it was actually received? What if a director comes back from leave three weeks after the demand or process was actually delivered to the registered office? What happens when a company has moved its registered office and receives the demand or process much later than when it was posted because of a diversion to another address or a PO Box? In this situation, the company may think it has a certain time from receipt of the demand or process to respond, but the actual time to respond may be much less than that.

Privilege, expert witnesses and the Evidence Act 2008 (Vic)

In Roads Corporation v Love [2010] VSC 253 (Love) the Supreme Court of Victoria considered the circumstances in which privilege is wavied when a party communicates with expert witnesses in conference.

In Love, counsel for the applicant sought at the trial to cross examine an expert witness on a document, being an 'agenda' which was prepared for a 2006 conference between the respondent, the expert witness, other expert witnesses and the respondent's lawyers. The 'agenda' suggested that the 2006 conference was called for the purpose of getting the expert witnesses to agree on a crucial issue in the trial. The applicant sought to adduce evidence of what was discussed at this 2006 conference. The applicant also sought to tender several documents relating to a 2004 conference with another expert witness. Both experts were called to give evidence at the trial on behalf of the respondent.