AA Technical Services Pty Ltd v Diedler - [2021] WASC 336

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
Tobin v Dodd [2004] WASCA 288
Woodley v Woodley [2018] WASCA 149
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

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 wish to give evidence. The affidavit sworn that morning in support of the second defendant's application for leave was read. With the benefit of the second defendant's evidence, the plaintiff no longer pressed objection to the grant of leave. The first defendant neither consented to nor opposed leave being granted.
After hearing the parties, I granted leave to the second defendant to give evidence viva voce without the provision of a witness outline for reasons that I would publish. These are my reasons.

The requirement to file a witness outline

For some time before February 2019, the usual practice in relation to civil trials, reflected in standard case management directions, had been that witness statements were exchanged prior to trial and would stand as the witness' evidence-in-chief. The standard direction also included a process of conferral in relation to objections to those witness statements.
In February 2019, there was a change from the default position of using witness statements in civil trials to witness outlines. The court substantively amended Practice Direction 4.5, and made consequential amendments to Practice Direction 4.1.2, 4.1.2.2 (usual orders), and 4.4, which came into effect from 1 February 2019.
Practice Direction 4.5 now provides that evidence-in-chief at trial may be led orally or in writing, at the direction of the case manager (and subject to any further order at trial). Those directions are to be made before a matter is entered for trial. The Practice Direction also provides that, ordinarily, evidence-in-chief at trial will be given orally, without the use of witness statements. In those circumstances, ordinarily, the case manager will order that the parties exchange witness outlines (witness outline orders).
Practice Direction 4.5 provides that a witness outline must be directed only to matters in issue. It must clearly identify all the topics in respect of which evidence will be given and the substance of that evidence, including the substance of each important conversation.
Where witness outline orders have been made, the practice at the trial will ordinarily be that the witness' evidence-in-chief is given orally, in the usual way. Objections will be dealt with in the course of the witness' evidence.
Practice Direction 4.5 par 19 provides that where a witness statement order or witness outline order is made, a party may not, without leave, adduce from the witness evidence-in-chief other than evidence included in the witness statement, or in relation to a topic referred to in the witness outline, as the case may be.
I accept that a witness ought not be permitted to be called where a witness outline order has been made, where no witness outline has been filed, and where leave has not been granted.

Procedural history

In considering whether to grant leave, I had regard to the procedural history of this action.
The court record reveals that on 2 November 2018, this action was listed for case management before a registrar. By order 6 made on that day, the plaintiff was to file and serve its witness statements by 14 December 2018. By order 7, the defendants were to file and serve witness statements by 31 January 2019. As noted above, at the time these orders were made, it was the practice of the court to receive evidence-in-chief by a witness statement produced, verified and tendered through the witness, so that the trial could immediately proceed to the cross-examination of that witness.
The plaintiff's obligation to comply with order 6 was suspended by an order made by a registrar on 28 November 2018. It would appear from the court record that the suspension arose by reason of the plaintiff intending to seek leave to administer interrogatories and wishing to have the benefit of answers to the same before the filing of witness statements.
By an order of the court made on 23 January 2019, leave was granted to the plaintiff to administer interrogatories to the defendants. A short affidavit was filed by the first defendant answering the interrogatories administered by the plaintiff on 6 March 2019.[1] A review of the court's record reveals that no answer was filed by the second defendant.
[1] Affidavit of J G Diedler sworn on 6 March 2019.
The witness statements of Mr Paul Dodd, Mr Alan Dodd and Mr Santino Lena were filed on behalf of the plaintiff on 20 January 2020. However, between the making of the orders for the filing of witness statements in November 2018, and the filing of the three witness statements on behalf of the plaintiff in January 2020, there was a change to the default position of using witness statements in civil trials to the use of witness outlines.
On 26 February 2020, the parties appeared before a registrar for further case management. The court record reveals that both the first defendant and the second defendant attended the case management conference on 26 February 2020 in person. Neither defendant was represented by a legal practitioner at that time.
The case management conference went for over an hour. The registrar explained witness outlines to the first and second defendants at the hearing. Both defendants were referred to the court's Consolidated Practice Directions and were informed that access to the same was available via the Supreme Court website. The registrar summarised the terms of the relevant practice direction which concerns witness outlines to the defendants. They were cautioned to start thinking about what evidence they would wish to adduce right now. They were told they could not leave it to the night before.[2]
[2] ts 96 - 97 (26 February 2020).
The first order made by the registrar on that occasion provided that any previous case management direction in relation to the provision of witness statements by any party was vacated. The registrar made further orders which included the following:
3.The witness statements filed by the plaintiff of Santino Lena, Alan Dodd and Paul Dodd be treated as statements provided for the purposes of trial.
4.Subject to any order of the judge, evidence other than of witnesses whose statements have already been filed be given orally with the parties providing a witness outline for each witness they intend to call.
5.That the witness outline for any further witness the plaintiff proposes to call be filed and served by 25 March 2020.
6.The defendants are to file and serve their witness outlines by 22 May 2020.
I have had regard to the transcript of the hearing on 26 February 2020. Following the exchange between the registrar and the plaintiff's representative and then the defendants, I am not confident that the unrepresented parties would have left that case management conference understanding that absent witness outlines or leave, they would not be able to lead evidence at trial.[3] I make this observation without any criticism of the practitioner who appeared on behalf of the plaintiff, or the registrar, who went to lengths to explain to the first and second defendants what was required of them.
[3] ts 95, 99 - 102, 109 - 110 (26 February 2020).
The witness outlines of Mr Polla, Ms Zink and Ms Burston were filed on behalf of the plaintiff on 1 May 2020.
The solicitors for the first defendant came onto the record on 12 August 2020.
The proceeding was entered for trial by the plaintiff at 8 October 2020. Neither defendant had filed any witness outlines as at that date.
On behalf of the first defendant, a supplementary answer to interrogatories and a substituted defence were filed in January of this year.
As the Judge to whom this trial had then been allocated was unavailable, this action was listed before the learned Master for directions on 4 March 2021. The court record reveals that the second defendant was present, as were representatives for the plaintiff and the first defendant. A number of orders programming the action to trial were made, which largely adopted the orders promoted by the plaintiff in its minute of proposed orders filed on 3 March 2021.
As at 4 March 2021, both the first and second defendants were in default of order 6 of the orders made on 26 February 2020. The orders made on 4 March 2021 included an order that the first defendant file and serve the witness outline for any witnesses the first defendant proposed to call by 5 March 2021. It was also ordered that the first defendant file and serve an amended substituted defence by the same date. No order was made for the second defendant to file and serve the witness outline for any witness the second defendant proposed to call.
During the course of the directions hearing on 4 March 2021, the second defendant indicated that he was comfortable with the orders proposed.[4] Whether he would file a witness outline, or intended to adduce evidence at this trial, were not expressly raised nor addressed during that hearing.
[4] ts 86 (4 March 2021).
Further witness outlines were filed in advance of the trial, including that of the first defendant on 5 March 2021. No outline was filed by the second defendant.
The action was listed before the Judge on 8 April 2021 for directions. There was no appearance by the second defendant at that hearing. The issue of whether the second defendant was to file a witness outline was not raised.
On 23 August 2021, with the consent of the plaintiff and the first defendant, further programming orders were made by the Judge on the papers. The orders included an order that by 30 August 2021, the plaintiff file and serve any further or amended witness outlines.
There is no suggestion in the court record that the second defendant had been excused from compliance with the witness outline order made on 26 February 2020, or that he had been granted leave to adduce evidence without filing a witness outline.
This trial commenced on Monday, 20 September 2021. Prior to the commencement of the trial, I was provided with a trial plan prepared on behalf of the plaintiff which allowed two days, 29 and 30 September 2021, for the second defendant to give lay evidence.
At the commencement of the trial, I addressed the second defendant and provided him with procedural information as to the conduct of the trial.
In that address, I made reference to the second defendant giving evidence-in-chief. At the conclusion of that address, I asked counsel if anything arose from my comments. That the second defendant had not filed a witness outline was not raised.

The applicable principles

In determining the appropriate way forward, I had regard to the principles identified by the High Court in AON Risk Services Australia Limited v Australian National University.[5] In particular, I had regard to [103] where the court states:
The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in JL Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party and to the disadvantage of another, an explanation will be called for. The importance attached by r 21, that the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and objective of the Rules. There can be no doubt that an explanation was required in this case.
[5] AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 [97], [103] and [111] - [114].
I proceeded on the basis of the general proposition that where a discretion is sought to be exercised in favour of one party to the disadvantage of another, an explanation will be called for. Further, the issue of explanation and the prejudice are therefore related to one another: see Jensen v Nationwide News Pty Ltd [No 11].[6]
[6] Jensen v Nationwide News Pty Ltd [No 11] [2019] WASC 179 [25].
Further, case management orders ought be complied with. Factors that tend to work against the grant of an indulgence include the wilful disobedience of the court's orders for ulterior purposes, or repeated delays in complying with the orders of the court when there is no acceptable explanation for repeated deliberate failures.[7]
[7] Mariotti v Wanneroo North Pty Ltd [2008] WASCA 243 [52] - [53].
In considering whether leave ought to be granted, I had regard to the purpose of witness outlines. The purpose of a witness outline is to provide notice of a witness' evidence-in-chief to the court and other parties.[8] They must identify the topics in respect of which the evidence will be given and the substance of that evidence, including the substance of each important conversation. The failure to comply with a witness outline order deprives other parties of that notice to their prejudice. To seek leave after the plaintiff has closed its case is particularly prejudicial.
[8] As noted in the court's Notice to Practitioners issued on 29 January 2019 (Amendment to Consolidated Practice Directions: Witness Statements, Witness Outlines and Costs Disclosure).
In considering whether it was appropriate that leave be granted, I also had regard to well-established general principles providing guidance on the level of flexibility and assistance that ought be provided to a litigant in person. In this regard, I note that a litigant in person is entitled to some leniency in relation to compliance with the court rules.[9]
[9] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
What a judge ought do so as to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case. The boundaries of intervention are flexible but the lodestar is a fair and just trial.[10]
[10] Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51], citing Abram v Bank of New Zealand [1996] FCA 635; (1996) ATPR 41-507, 31; Tobin v Dodd [2004] WASCA 288 [14]. See also Stone v Braun [2015] WASCA 103 [62] - [69]; Woodley v Woodley [2018] WASCA 149 [76] - [77]; and Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [73] - [76].
I proceeded on the basis that the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which that litigant will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which the adversarial procedure offers to the unwary and untutored.[11]
[11] Moleirinho v Talbot & Olivier Lawyers Pty Ltd [51], citing Konings v Commonwealth Bank of Australia [2016] WASCA 122 [12]; Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1, 14; and Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438, 445 - 446 [26] - [29].
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].

The explanation offered

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.

Disposition

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.
I say very limited rather than no notice as it appeared unlikely that the plaintiff and first defendant would be taken by surprise by the second defendant's evidence. The second defendant had filed a defence, which had been his defence since 16 January 2018. Further, the second defendant had given an opening address in which he foreshadowed some of the evidence he intended to give.
When considering the prejudice to the other parties, I had regard to the fact that there was potential for the plaintiff and the first defendant to reopen. Similarly, the adjournment of the trial after the second defendant's evidence-in-chief and before any cross-examination of him might also be considered to redress any prejudice suffered by the other parties, if either considered additional time was needed.
I weighed the prejudice to the other parties against the reasons for non-compliance proffered by the second defendant. The second defendant deposed to his health issues and circumstances in the relevant period, and also asserted that he did not understand his obligation to file a witness outline if he wished to give evidence at this trial. From a review of the court's record, it would appear that the consequences of failing to comply with the witness outline order were not plainly explained to the second defendant after the directions hearing on 26 February 2020. The allowance made for the second defendant to give lay evidence over two days in the plaintiff's trial plan and the guidance I gave to the second defendant at the commencement of this trial would not have alerted the second defendant to the issue.
It is regrettable in all of the circumstances that the question of whether the second defendant intended to adduce evidence at trial was not discussed nor addressed in the course of case management after February 2020. If the second defendant was warned of the consequences of his inaction and his failure to comply with the orders of the court, it cannot be not readily discerned from the court's record.
It is not open to find, nor was it submitted that there had been a wilful disobedience of the court's orders for ulterior purposes on the part of the second defendant, nor a deliberate failure to comply with the orders of the court when there was no acceptable explanation for the same.
The position adopted on behalf of the plaintiff on the sixth day of trial was by no means an inappropriate position for the plaintiff to take. As noted above, a witness ought not be permitted to be called where a witness outline order has been made, where no witness outline has been filed, and where leave has not been granted.
In this case, on balance, I considered it appropriate to grant leave to the second defendant to proceed to give his evidence-in-chief viva voce without a witness outline having been filed. Any particular prejudice to the plaintiff or the first defendant that arose could potentially be addressed by the adjournment of the trial part heard, or the reopening of their respective cases, or both.
Further, I find that the exercise of the discretion in the second defendant's favour would afford the second defendant leniency without depriving the other parties of a fair and just trial. The exercise of discretion in favour of the second defendant, affording him some leniency, was necessary to prevent destruction from a trap which the adversarial procedure offers to the unwary and untutored.
It is desirable that this case be decided on its merits so as to do justice between the parties and preserve public confidence in the administration of justice. Ultimately, the desire to determine this case on the merits and the explanation proffered by the second defendant, in all of the circumstances, outweighed the other relevant factor bearing on the question of whether leave proceed should be granted, that being the prejudice to the other parties. The second defendant was granted leave to give evidence viva voce. The parties had liberty to apply.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MH
Associate to Justice Strk
1 OCTOBER 2021