JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: AA TECHNICAL SERVICES PTY LTD -v- DIEDLER [2021] WASC 336
CORAM: STRK J
HEARD: 28 & 29 SEPTEMBER 2021
DELIVERED : 29 SEPTEMBER 2021
PUBLISHED : 1 OCTOBER 2021
FILE NO/S: CIV 1653 of 2016
BETWEEN: AA TECHNICAL SERVICES PTY LTD
Plaintiff
AND
JOACHIM GOTTFRIED DIEDLER
First Defendant
PAUL GREGORY MCKENZIE
Second Defendant
Catchwords:
Practice and procedure - Evidence - Application for leave to adduce evidence during the course of a trial where no witness outline had been filed and a witness outline order had been made but had not been complied with - The purpose of a witness outline - Application made by a litigant in person - Explanation for non‑compliance with a witness outline order required - Prejudice to the other parties - Ensuring a fair and just trial while affording a litigant in person some leniency
Legislation:
Nil
Result:
Leave granted
Category: B
Representation:
Counsel:
| Plaintiff | : | G D Cobby SC |
| First Defendant | : | M Tolcon & H Vu |
| Second Defendant | : | In Person |
Solicitors:
| Plaintiff | : | Roe Legal Services |
| First Defendant | : | Forbes Kirby |
| Second Defendant | : | Not Applicable |
Case(s) referred to in decision(s):
Abram v Bank of New Zealand [1996] FCA 635; (1996) ATPR 41-507
AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Jensen v Nationwide News Pty Ltd [No 11] [2019] WASC 179
Konings v Commonwealth Bank of Australia [2016] WASCA 122
Mariotti v Wanneroo North Pty Ltd [2008] WASCA 243
Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
MTI v SUL [No 2] [2010] WASCA 58
Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1
Stone v Braun [2015] WASCA 103
STRK J:
The second defendant is not represented in this proceeding. On the sixth day of a trial listed for 10 days, the second defendant gave an opening address and indicated that he wished to give evidence on his own behalf. Counsel for the plaintiff indicated that he wished to be heard in relation to the same in circumstances where the second defendant had failed to file a witness outline, despite there being case management orders fixing a date for the filing of the same.
I took the second defendant's indication that he wished to give evidence as an application for leave. The second defendant was invited to prepare an affidavit in which he deposed to the reasons for his failure to file a witness outline where a witness outline order had been made, and the trial was adjourned to the following day when I would hear from all parties.
At the commencement of the seventh day of the trial, the second defendant confirmed his…
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- AGLC
- AA Technical Services Pty Ltd v Diedler [2021] WASC 336
- Case
- [2021] WASC 336
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether McKenzie should be granted leave to give evidence despite his non-compliance with the witness outline order. The court considered the purposes of a witness outline order, which include ensuring notice and fairness to the other parties. The court also considered the principles applicable to litigants in person, including the need to provide some advice and assistance to them, but without conferring upon them advantages which they would not have if represented. The court further weighed the potential prejudice to the other parties if leave were granted against the need to ensure a fair and just trial for McKenzie.
The court found that McKenzie's non-compliance with the witness outline order caused general prejudice to the other parties, as they would be denied notice of the topics upon which he would give evidence. The court also found that McKenzie had provided a reasonable explanation for his non-compliance, including his health issues and lack of legal advice. The court granted McKenzie leave to give evidence, but under strict conditions, including that he would not be allowed to give evidence on any topic not disclosed in his witness statement and that the other parties would be given reasonable notice of the topics upon which he would give evidence. The court also ordered that McKenzie pay the costs of the other parties in relation to the application.
The court's decision in this case highlights the importance of complying with procedural orders in litigation, while also recognising the need to provide some leniency to litigants in person. The court balanced the need for fairness and notice to the other parties against the need to ensure a fair and just trial for McKenzie. The court's decision also underscores the importance of providing advice and assistance to litigants in person, while avoiding conferring upon them advantages which they would not have if represented.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In considering the application for leave, I am cognisant that although bound to supply some advice and assistance to a litigant in person, the court should not confer upon a litigant in person advantages which, if he were represented, he would not have. However, I also note that the court should be careful to ensure that the litigant in person has not, because of lack of legal skill, failed to claim rights and or put forward arguments which otherwise he might have done.[12] [12] Rajski v Scitec Corporation Pty Ltd, 27; Minogue v Human Rights and Equal Opportunity Commission [28]; Tobin v Dodd [14]; Rankilor v Circuit Travel Pty Ltd [70]. The court should also not intervene to such an extent that he or she acts unfairly towards the represented party or cannot maintain a position of neutrality in the litigation.[13] The court also needs to ensure that any latitude given to a litigant in person does not deprive the other party of its rights to procedural fairness and a fair hearing.[14][13] Minogue v Human Rights and Equal Opportunity Commission [26] - [29]; Tobin v Dodd; Glew v Frank Jasper Pty Ltd [10].[14] Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (Judgment of the Court); MTI v SUL [No 2][2010] WASCA 58 [42] - [43] (Newnes JA, with whom Pullin & Buss JJA agreed); Glew [10]. From the bar table, the second defendant offered a number of reasons as explanation for him not having complied with the witness outline order. On the morning of 29 September 2021, the second defendant filed an affidavit in which he deposed to his personal circumstances from 2016 to the commencement of the trial which he says caused him to be under significant stress and which he described as both health and life circumstances. While no documentary evidence was attached to his affidavit, the second defendant deposes to having been diagnosed with myeloma in late 2017. The second defendant further deposes that in 2019, 2020 and 2021, he was under duress, anxiety and depression while dealing with his health issues and both criminal and multiple civil actions against him. He deposes to having missed multiple court dates due to his health and life circumstances. Further, he says that he may or may not have seen requests from the plaintiff during 2019 and 2020 for witness statements.[15] He deposes that with no legal advice, in his circumstances, he had no understanding of 'what that meant' and that he had already provided his defence.[16] The second defendant deposes at par 50 of his affidavit that 'I was never aware of the requirements of what a witness statement meant.'[15] Affidavit of P G McKenzie sworn on 29 September 2021, pars 46 - 48.[16] Affidavit of P G McKenzie sworn on 29 September 2021, par 48. As to prejudice, I accept that the second defendant being granted leave to give evidence without having complied with the witness outline order after the other parties had closed their case would cause general prejudice to them. They would be denied notice, the very purpose of a witness outline. While no particular prejudice was raised, I was cognisant that if leave were granted, the trial would proceed with the plaintiff and the first defendant having very limited notice of the topics upon which the second defendant would give evidence. I weighed the same in the balance.