Adnan Emer v CEA Consolidated Industries Pty Ltd

[2010] VSCA 54

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.  3758 of 2009

ADNAN EMER	Applicant
v
CEA CONSOLIDATED INDUSTRIES PTY LTD	Respondent

---

JUDGES:	HARPER JA and EMERTON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 March 2010
DATE OF JUDGMENT:	5 March 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 54

---

Application to adduce further evidence on the appeal – Personal injury – Appeal against refusal to grant leave to commence proceedings under the Accident Compensation Act 1985 – Whether exceptional circumstances - Mobilio v Balliotis [1998] 3 VR 833, Foody v Horewood & Ors [2007] VSCA 130 and Clarke v Stingel [2007] VSCA 292 applied – Supreme Court Rules, r 64.22(3) - Application refused. 

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J. Kennan QC with Mr A. MacNab	Clark Toop & Taylor
For the Respondent	Mr J. Ruskin QC with Mr J. Gorton	Wisewoulds Mahony

HARPER JA:
EMERTON AJA:

1. This is an application pursuant to r 64.22(3) of the Supreme Court Rules, which provides that the Court of Appeal shall have power to receive further evidence upon questions of fact. 

1. The applicant has experienced pain in his back since 13 November 2003, following several hours of work that day in cramped surroundings.  On 18 October 2006, he instituted an application in the County Court for leave to commence proceedings for damages for pain and suffering and pecuniary loss.  Having been interrupted by the untimely death of Judge Higgins, the application concluded on 22 August 2008, when it was dismissed by Judge Millane.  On 16 June 2009, the applicant was granted leave by this Court to file a notice of appeal out of time. 

1. By summons dated 16 November 2009, the applicant seeks leave to adduce on the appeal evidence which was not before the primary judge.  The evidence the subject of this application consists of:

(i)a one page report dated 30 October 2008 from Dr Tim Dunshea of Victoria House Medical Imaging about the results of an MRI scan of the applicant’s spine;

(ii)a three page operation report dated 19 January 2009 by Dr Bruce Mitchell following a lumbar discography performed by Dr Mitchell on the applicant;

(iii)a two page letter dated 13 March 2009 from a neurosurgeon, Mr Greg Malham, to Dr Mitchell concerning the management of the applicant’s back problems, together with a three page information sheet prepared by Mr Malham and headed ‘Artificial Disc Replacement’;

(iv)a four page report dated 18 September 2009 from Dr Mitchell to the firm of Clark Toop & Taylor, the solicitors for the applicant.

1. There is no doubt that the proposed fresh evidence is relevant.  The applicant alleges that, as a result of his work on 13 November 2003, he suffered a serious injury, in his case to his back.  The Accident Compensation Act 1985, however, requires that he satisfy a judge of the County Court of that fact before he can be given leave to commence proceedings such as these.  The evidence now sought to be adduced is relevant to the extent of the back injury from which it is conceded by the respondent he suffers.

1. The medical evidence called by the applicant failed to satisfy the primary judge that leave should be granted.  The application was therefore dismissed.  Her Honour held, on the balance of probabilities, that the plaintiff had not established:

(i)that he suffered from a ‘permanent serious impairment or loss of function of his lumbar spine with pain and suffering or pecuniary loss consequences that [were] at least very considerable’;  and

(ii)that he suffered ‘permanent severe mental or permanent severe behavioural disturbance or disorder with pain and suffering or pecuniary loss consequences that [were] to the extent of being severe’.

1. The applicant submits that the evidence the subject of this application ‘establishes that the [applicant’s] pain was on the balance of probabilities driven by an organic injury at [the L5/S1] level in the spine’.  Indeed, it is submitted that the evidence sought to be adduced is ‘dramatic’.  In those circumstances, the submission continues, refusal to admit the further evidence would affront common sense.  Reliance is placed upon, among other cases, Foody v Horewood & Ors.[1]

   [1][2007] VSCA 130, [66].

1. That case, however, must be read in its context.  In that case, one issue was the admissibility of evidence of facts which occurred after trial.  In those circumstances, this Court, quoting Doherty v Liverpool District Hospital,[2] held that the decision to admit or not to admit the fresh evidence is a matter of discretion, which ‘is to be undertaken with regard to the context in which it arises and also to the general public interest in the finality of litigation’.  The Court in Foody v Horewood also cited Mobilio v Balliotis,[3] in which it was accepted that, ordinarily, the discretion to admit further evidence on appeal under r 64.22(3) should only be exercised in exceptional cases.  As in Doherty, the Court in Mobilio concluded that, in the circumstances of that case, the further evidence should not be received given that it was of matters that were reasonably in contemplation at the trial, and that there was nothing exceptional about the changed circumstances.  It could not be said, therefore, that the basis on which the case was decided had been materially falsified by a relevant change of circumstances.

   [2](1991) 22 NSWLR 284 at 296 ("Doherty").

   [3][1998] 3 VR 833 (Brooking JA delivered the leading judgment. Winneke P, Ormiston, Phillips and Charles JJA agreed on this point).

1. Although concerned with events which occurred after trial, the appeal in Mobilio was otherwise similar to that the subject of the present application, in that it was against the refusal of leave to bring common law proceedings for damages – albeit damages sustained in a transport accident.  In Mobilio, the judge at first instance found that, although the appellant was suffering from a consequential mental disorder or disturbance, it was not ‘severe long-term’ within the meaning of that expression in the Transport Accident Act 1986.  On appeal, the new evidence that was sought to be adduced consisted of medical and other evidence of circumstances that arose after the trial.  The evidence showed that the appellant was suffering from a major depressive illness and was unemployable.  In refusing leave, Brooking JA said:

The further evidence sought to be led was concerned with such matters as the mood of the plaintiff, her ability to work, her suicidal tendencies, her dependency on medication and her need for electro-convulsive therapy. These matters had all been gone into at the hearing. It is true that the evidence, if permitted to be led, would have shown that in some respects things had changed, but none of the changes went beyond what was reasonably in contemplation at the time of the hearing. It is a matter of degree, but I am not prepared to say, using the words of Viscount Dilhorne and Lord Pearson in Mulholland,[4] that the circumstances of this case are exceptional or (using the words of Viscount Dilhorne) that the question was determined at the hearing on a basis which events after it have falsified.  Nor, using the words of Lord Hodson, would I say that the basis upon which the case was decided at the hearing was suddenly and materially falsified by a dramatic change of circumstances.  In picking up these expressions I do not of course suggest that there is any “precise formula which gives a ready answer”, reminding myself of the caution expressed by Lord Hodson.

[4]Mulholland v Mitchell [1971] AC 666.

1. It was on this basis that, in Foody, this Court concluded that:

… ordinarily, the discretion to receive evidence of events after trial is exercised only rarely, and generally only if it bears upon matters falling within the field or area of uncertainty, in respect of which the trial court had made an estimate on an assumption that was then common to both parties and that that assumption has clearly been falsified by subsequent events, such that the refusal to admit the further evidence would affront common sense.

1. The present application is not in truth one to admit evidence of events which occurred after trial.  The events described in the relevant documents occurred after the hearing of the application for leave to proceed; but they concern the state of the applicant’s health before and at the time of that hearing.  And there is nothing to suggest that the evidence subsequently obtained and upon which reliance is now sought to be placed was unobtainable before the hearing. 

1. In an affidavit sworn on 16 November 2009 in support of the application, Mr Gary Clark, the partner in Clark Toop and Taylor who has the conduct of the matter for the applicant, deposes to the fact that the applicant first consulted him on 29 September 2008, and subsequently provided him with (a) a letter dated 2 October 2008 from Dr Mitchell to the authorised Workcover insurer seeking approval for conducting a discography on the applicant, and (b) a letter in reply in which the insurer agreed to bear the costs of that procedure and of an MRI scan.  In an affidavit sworn in response affirmed on 16 December 2009, Mr Paul Ricco, the solicitor for the respondent, deposed to the fact that an earlier request for approval of a discogram had been sought by Dr Mitchell, and that following that request opinions had been obtained by the insurer from two neurosurgeons (Messrs Klug and Marshall).  There, so far as the insurer’s file reveals, the matter effectively rested.  There is nothing on the file to indicate that the insurer got back to Dr Mitchell or that anybody on the applicant’s side took the matter further.  However, we were referred this afternoon to correspondence, some of which took place after the hearing, which demonstrated that Dr Mitchell did approach the insurer again seeking approval for the insurer to bear expense of a discogram and stating that the applicant was happy to proceed with surgery if this is diagnosed, that is, is the problem with the disc is diagnosed, as the source of his pain.

1. Following that letter the insurer authorised the relevant expenditure and the discogram was performed with the results which are set out in the material which is now sought to be adduced in evidence.

1. It nevertheless remains true that consistently with this account of events, the best that the applicant can now do is to submit that ‘[t]he further evidence which is sought to be adduced at the appeal was not available prior to the hearing’.  Even if the affidavit evidence in support of the application supported this submission, however, this is not sufficient to meet the criteria applicable in the circumstances of this case for the admission of new evidence.  Those criteria were authoritively laid down in Clarke v Stingel.[5]  In that case, Warren CJ and Chernov and Kellam JJA held that the principles upon which the Court will grant leave to introduce fresh evidence upon an appeal are not in doubt.  Leave should be granted only if:

·     By the exercise of reasonable diligence such evidence could not have been discovered in time to be used in the original trial.

·     It is reasonably clear that if the evidence had been available at the trial, and had been adduced, an opposite result would have been produced.

·     The evidence proposed to be adduced is reasonably credible.

[5][2007] VSCA 292, [25].

1. The evidence which by this application the applicant seeks leave to be adduced does not meet two of these three criteria. It could by reasonable diligence have been obtained in time to be used at the original application for leave to commence proceedings. And it is not reasonably clear that if the evidence had been available at the hearing in the County Court an opposite result would have been produced. The applicant, as we have said, describes the fresh evidence as ‘dramatic’. That might be an accurate description. It is, nevertheless, not necessarily appropriately persuasive, no matter how dramatic it might be. There is, for example, the evidence of the neurosurgeon Robert Marshall, which is before us on this application,[6] to the effect that discograms are very unreliable.

   [6]As part of exhibit PR4 to the affidavit of Paul Ricco affirmed on 16 December 2009.

1. We cannot therefore conclude that it is reasonably clear that had the evidence now sought to be adduced at the hearing, been adduced, the judge would have come to a different conclusion.

1. For these reasons, the application must be refused.

(DISCUSSION ENSUED.)

1. The order will be the applicant has leave to amend his grounds of appeal dated 16 June 2009 on or before 4 pm on Friday 19 March.

---