Allison v Tuna Tasmania Pty Ltd
[2017] TASFC 9
•7 September 2017
[2017] TASFC 9
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Allison v Tuna Tasmania Pty Ltd [2017] TASFC 9
PARTIES: ALLISON, Paul Francis
v
TUNA TASMANIA PTY LTD
FARRER, Sharon Tina as representative of the estate of
FARRER, John Frederick (deceased)
FARRER, Sharon Tina
LAWRENCES MOTORS PTY LTD as trustee of
The Farrer Superannuation Fund and as trustee of
The Farrer Superannuation Fund (No 2)
HAVENFLASH PTY LTD as trustee of
The Farrer Family Trust
FILE NO: 1207/2015
JUDGMENT
APPEALED FROM: Allison v Tuna Tasmania Pty Ltd [2015] TASSC 31
DELIVERED ON: 7 September 2017
DELIVERED AT: Hobart
HEARING DATE: 10 April 2017
JUDGMENT OF: Wood, Pearce and Brett JJ
CATCHWORDS:
Appeal and New Trial – Appeal – General principles – Admission of further evidence – Evidence not available at hearing – When not admissible – Special leave refused because evidence could have been obtained by proper diligence and no special circumstance established.
Supreme Court Civil Procedure Act1932 (Tas), s 48(3).
REPRESENTATION:
Counsel:
Appellant: A J H Morris QC, J P Murphy
Respondent: D J Gunson SC
Solicitors:
Appellant: No solicitor
Respondent: Timothy Williams
Judgment Number: [2017] TASFC 9
Number of paragraphs: 58
Serial No 9/2017
File No 1207/2015
PAUL FRANCIS ALLISON v TUNA TASMANIA PTY LTD,
SHARON TINA FARRER as representative of the estate of
JOHN FREDERICK FARRER (deceased),
LAWRENCES MOTORS PTY LTD as trustee of
the Farrer Superannuation Fund and as trustee of
the Farrer Superannuation Fund (No 2), and
HAVENFLASH PTY LTD as trustee of the Farrer Family Trust
REASONS FOR JUDGMENT FULL COURT
WOOD J
PEARCE J
BRETT J
7 September 2017
Orders of the Court
Application for special leave to admit further evidence refused.
Application for leave to amend notice of appeal refused.
Serial No 9/2017
File No 1207/2015
PAUL FRANCIS ALLISON v TUNA TASMANIA PTY LTD,
SHARON TINA FARRER as representative of the estate of
JOHN FREDERICK FARRER (deceased),
LAWRENCES MOTORS PTY LTD as trustee of
the Farrer Superannuation Fund and as trustee of
the Farrer Superannuation Fund (No 2), and
HAVENFLASH PTY LTD as trustee of the Farrer Family Trust
REASONS FOR JUDGMENT FULL COURT
WOOD J
7 September 2017
I agree with Pearce J.
File No 1207/2015
PAUL FRANCIS ALLISON v TUNA TASMANIA PTY LTD,
SHARON TINA FARRER as representative of the estate of
JOHN FREDERICK FARRER (deceased),
LAWRENCES MOTORS PTY LTD as trustee of
the Farrer Superannuation Fund and as trustee of
the Farrer Superannuation Fund (No 2), and
HAVENFLASH PTY LTD as trustee of the Farrer Family Trust
REASONS FOR JUDGMENT FULL COURT
PEARCE J
7 September 2017
The appellant, Paul Allison, applies for the special leave of this Court to admit further evidence on the hearing of an appeal from a judgment of Blow CJ after a trial of an action conducted by his Honour without a jury. The proposed further evidence is from a witness, Stephen Chaplin. Ancillary to the application for special leave is an application to amend the grounds of appeal. The appellant wishes to add grounds challenging directions made by the trial judge at the start of the trial concerning a subpoena addressed to Mr Chaplin issued at the instance of the appellant.
For the reasons which follow both applications should be refused.
The action – a brief summary
The action was commenced by the appellant in 2003 against Tuna Tasmania Pty Ltd, John Farrer and his wife Sharon Farrer, the corporate trustee of two superannuation funds controlled by Mr Farrer and the corporate trustee of a Farrer family trust. Tuna Tasmania Pty Ltd, at all material times from its incorporation in November 1994, was a company controlled by Mr Farrer. The trial did not take place until December 2014. On 17 July 2015 the learned trial judge published written reasons for ordering judgment for the respondents: Allison v Tuna Tasmania Pty Ltd [2015] TASSC 31.
John Farrer died on 7 March 2016. Sharon Farrer is appointed as representative of his estate for the purposes of the appeal. The parties ask this Court to determine the application for the grant of leave before hearing the substantive appeal.
It is sufficient for present purposes to describe the issues in the action briefly. The appellant's case was that he and Mr Farrer met at the home of Stephen Chaplin at 184 George Street, East Melbourne, on AFL grand final day in 1994. Photographs showing Mr Farrer, Mr Chaplin and the appellant together, which the appellant said were taken on that occasion, were tendered. The appellant claimed that, at the meeting, Mr Farrer accepted the appellant's offer to "enter into an equal partnership to conduct a fishing business in common for their mutual profit". The appellant contends that contractual and fiduciary obligations arose from that meeting, even though further terms of the structure and form of the business venture were agreed over the next couple of months after consultation with a lawyer, a Mr Boland. According to the appellant, further matters were agreed during a meeting at Mr Boland's office which the trial judge found took place on 28 October 1994, including that a company, Tuna Tasmania Pty Ltd, would be incorporated as trustee of a unit trust, with the appellant and Mr Farrer each owning half of the shares and units. The appellant claimed that it was agreed that he would contribute some capital and his experience and expertise in the fishing industry, and that Mr Farrer would contribute capital. In the action, the appellant contended Mr Farrer breached the agreement and the fiduciary obligations arising from it by, in effect, appropriating the business venture to his own interests. The evidence established that the proposed business structure was established by Mr Farrer after 28 October 1994, and that the shares in the company and the units in the unit trust were all owned or controlled by him.
At trial, the appellant and Mr Farrer both gave evidence. Mr Boland was called by the appellant to give evidence. There was a great deal of documentary evidence. Mr Farrer's evidence was in the form of a witness statement tendered as an exhibit, and some brief further evidence. His case was that there was no agreement. He asserted that on grand final day in 1994, which in that year was on 1 October, he and Mr Chaplin ran into the appellant by chance at about 11am at the Hilton Hotel in Melbourne, and again at the same hotel after the game. Mr Farrer said that there was no meeting at Mr Chaplin's house on that day and that the appellant's photographs were taken at a different location on a different day. He maintained his version during cross-examination by counsel for the appellant. Mr Farrer also denied any subsequent agreement between him and the appellant.
The trial judge found that no contract creating a partnership or entitling the appellant to half of the units in the unit trust was established by the evidence. In so finding he commented on the credibility of both the appellant and Mr Farrer. His Honour regarded both as "extremely unreliable" witnesses. His Honour determined the question of whether a contract had been established by applying an "an objective test, and not by reference to what Mr Allison or Mr Farrer thought, or said they thought, about the nature of their arrangements", citing Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52, 219 CLR 165 at [40].
The appeal
The notice of appeal contains eight grounds. Grounds 1, 2, 3, 4 and 8 directly challenge the trial judge's conclusion that there was, to use the words in the grounds of appeal, "no partnership or agreement for a partnership". The remaining three grounds challenge the factual findings and process of reasoning by reference to the evidence which led to the same conclusion.
The relief sought by the notice of appeal is that the judgment ordered by the trial judge is set aside and substituted by an order that there be judgment for the appellant. An order for a retrial is not sought.
The application – evidence of Stephen Chaplin
The appellant seeks to admit evidence on the hearing of the appeal from Mr Chaplin. Mr Chaplin did not give evidence at the trial. In support of the application the appellant read an affidavit sworn by Mr Chaplin in March 2017 stating the evidence he would give if leave is granted. I will describe the proposed evidence in more detail later in these reasons. Mr Chaplin deposes that a meeting did take place at his home on grand final day on 1 October 1994 and states his observation of the interaction between the appellant and Mr Farrer at the meeting. It is a version consistent with the appellant's case, and inconsistent with Mr Farrer's evidence.
Why the evidence was not adduced at trial
The reason Mr Chaplin did not give evidence at the trial emerges from the transcript of the trial, from documents given to the trial judge and from Mr Chaplin's affidavit. Subject to one objection as to admissibility, the facts deposed to in the affidavit were not challenged at the hearing of this application and Mr Chaplin was not cross-examined.
Mr Chaplin knew both the appellant and Mr Farrer for many years prior to 1994. He was not a stranger to the dispute. In 2002 Tuna Tasmania Pty Ltd brought proceedings against the appellant for removal of a caveat lodged by the appellant on the registration of a ship. The proceedings arose from the same series of events. Mr Chaplin swore an affidavit on 13 May 2002, and gave evidence, in support of the appellant's opposition to removal of the caveat. In that affidavit Mr Chaplin gave a version of the 1 October 1994 meeting substantially consistent with the account given in his March 2017 affidavit. In the proceedings in 2002, Mr Chaplin was cross-examined by counsel for Tuna Tasmania Pty Ltd, one of the same counsel who appeared at the trial and on the hearing of this application. In July 2014 Mr Chaplin gave and signed a statement to one of the appellant's counsel, Mr J Murphy. At that time, Mr Chaplin intended to give evidence on the appellant's behalf at the trial. Sometime between then and the commencement of the trial on 1 December 2014, he changed his mind. The evidence does not establish when it was that Mr Chaplin decided that he would not voluntarily give evidence. On 14 November 2014 the appellant's lawyers caused the Supreme Court in Hobart to issue a subpoena addressed to Mr Chaplin at an address in rural Victoria. The subpoena ordered Mr Chaplin to attend to give evidence at the Supreme Court in Hobart at 10am on 1 December 2014.
During the afternoon of Sunday, 16 November 2014, Mr Murphy phoned Mr Chaplin. According to Mr Chaplin's affidavit, "Mr Murphy … told me that a subpoena had been issued, and gave me the details of it, including that it required me to attend court in Hobart on 1 December 2014 at 10am to testify". Mr Chaplin agreed to "accept service of it by email as well as by post". Later the same day Mr Murphy phoned Mr Chaplin again and informed him that he need not attend court until 10am on 2 December 2014, the day following the date specified in the subpoena. The subpoena was emailed to Mr Chaplin by Mr Murphy on Thursday, 20 November 2014. The email is marked as having been sent at 11.22pm. The terms of the email include the statement "Paul will, of course, look after your airfares and accommodation etc". Mr Chaplin deposes in his affidavit that early in the following week he "became quite ill" and that his doctors advised him not to travel. On Thursday, 27 November 2014, only a few days before the trial was about to start, Mr Chaplin's Victorian lawyer sent an email to the Supreme Court in Hobart. The email, according to its terms, was an application to set aside the subpoena and to excuse Mr Chaplin from "travelling to Hobart to give evidence on 1 December 2014". It stated that Mr Chaplin was not well and foreshadowed the provision of a medical certificate. The email, in part, read:
"We are also instructed that some years ago our client had already travelled to Hobart at his own expense and gave his evidence in this matter. Therefore it does not appear that our client's evidence will add anything further to what he has already provided to this Honourable Court."
On the following day, 28 November 2014, another email was sent to the Court by Mr Chaplin's lawyer. It asserted that a "hard copy" of the subpoena addressed to Mr Chaplin was not received by him until 24 November 2014. It continued:
"Accordingly, our client also seeks to object to the subpoena on the basis that it was not properly served in accordance with the Service and Execution of Process Act 1992 being less than 14 days from 1 December 2014."
At 9.15am on 1 December 2014, an email was sent by Mr Chaplin's lawyer to the Court attaching a medical certificate apparently written by a doctor in Wonthaggi, in Victoria, certifying that Mr Chaplin was "receiving medical treatment" and was "unfit to continue his usual occupation between 29 November 2014 and 2 December 2014".
All of the correspondence to which I have referred was given to the trial judge. The matter of Mr Chaplin's attendance was raised at the commencement of the trial. The trial judge announced that he had sent a message to the Victorian lawyer that Mr Chaplin would "not be required to attend today and that this could be discussed in court today". Senior counsel for the appellant simply asked that the matter of the subpoena be put off for a couple of days and then re-addressed.
However, that was not the end of the matter. Apparently seeing some forensic advantage for his own clients in making life difficult for the appellant, senior counsel for the respondents submitted to the trial judge that there were "some more fundamental problems" with the subpoena. He submitted that leave to issue the subpoena was required by the Service and Execution of Process Act 1992 (Cth) ("the SEP Act"), s 57, and that leave had not been obtained. The submission was wrong. Section 57 applied to proceedings in tribunals and had no application to subpoenas issued by a court in civil proceedings in a court. Issue of such subpoenas is governed by Div 1 of Pt 3 of the SEP Act, ss 28-37. No leave is required for issue and service of such a subpoena. Counsel for the appellant did not correct the error. He submitted that there was "substance in the point taken by my learned friend". Counsel for the appellant attempted to address the submission about the requirement for personal service contained in the Supreme Court Rules 2000, r 498, and the absence of the tender of expenses to Mr Chaplin, both of which points had also been taken by counsel for the respondents, but his Honour stated that "we don't get to that point unless there's been an application for leave and an order". When counsel for the appellant submitted that his opponent "was right about that", the trial judge said:
"Alright. Well in that case I'll direct that the solicitor for the witness be informed that because leave wasn't sought and obtained there's no present obligation for the witness to attend."
Later on 1 December 2014, after the first day of trial, the trial judge realised the error into which he had been led. His Honour had his associate send an email to counsel for the parties in the following terms:
"His Honour wished me to inform you that the basis of the submission in relation to the subpoena of Mr Chaplin this morning was incorrect.
The Service and Execution of Process Act 1992 (Cth) cited in support of the submission that there had been no application for leave to issue a subpoena [sic]. S 57 applies to the issue of subpoenas by tribunals, and is not relevant to proceedings before this court.
However, s 30 of the Act requires that a subpoena can only be effectively served not less than 14 days prior to the date at which compliance is required, unless leave is granted on application for a shorter period of time. As per the correspondence, Mr Chaplin was served with the subpoena at most 9 days prior to the date required for compliance.
Therefore, though the basis of submissions in relation to the subpoena was incorrect, the direction given by his Honour was correct."
The matter was raised in court on the resumption of the trial the following morning, 2 December 2014. Counsel for the appellant referred to the trial judge's email sent the previous evening and said that he "wanted to express my deepest personal apologies to the Court for my failure to assist the Court on that point". Counsel for the respondents also apologised to the trial judge. The trial then continued. It did not conclude until 12 December 2014 when his Honour reserved his decision. Nothing more was said about the subpoena. Mr Chaplin did not give evidence for either party.
Legislative provisions
An appeal to this Court is by way of re-hearing: Supreme Court Civil Procedure Act 1932 ("the SCCP Act") s 46. It is to be determined in accordance with s 47 and the principles stated in Warren v Coombes (1979) 142 CLR 531; Allesch v Maunz [2000] HCA 40, 203 CLR 172 and Fox v Percy [2003] HCA 22, 214 CLR 118. The power for this Court to receive further evidence upon any appeal from a judgment, order or other determination given or made after the trial of any cause or matter upon the merits, whether or not the appeal is from a jury or a judge, derives from s 48(3). Except as to matters which have occurred after the date of the judgment, order or determination, special leave of the Court is required. The subsection states that leave shall only be granted in cases in which:
"(a)the evidence was not in the possession of the party seeking to have it admitted, and could not by proper diligence have been obtained by that party, before the termination of the trial; or
(b)there is some other special circumstance which in the opinion of the Court, justifies the admission of it."
Consequently, because the proposed evidence from Mr Chaplin is evidence of matters occurring before judgment, it may only be admitted if the appellant satisfies this Court of at least one of the two alternative circumstances justifying the grant of special leave in s 48(3)(a) and (b).
There is a distinction between the provisions of the SCCP Act concerning the power to receive further evidence on hearing an appeal, and the provisions for admission of new or fresh evidence on applications for a new trial of an action. This is a case of the former. The latter is subject to ss 39, 47 and 50. Section 50(1)(c) imposes substantial limitations on the power of the Full Court to order a new trial on the ground of discovery of a new fact or fresh evidence. A new trial is not to be ordered unless the evidence:
"(A) appears to the Full Court to be such as is to be believed, and if believed would (although not admissible as evidence on any issue previously raised) form a determining factor in the result of the cause or matter or the part thereof to which the new fact or fresh evidence relates; and
(B) could not by proper diligence have been discovered by the party applying for a new trial before the termination of the trial, or, if it was discovered by him immediately before the commencement of, or during, trial, an application to the trial judge for leave (if necessary) to raise the new fact and adduce evidence thereof, or to adduce the fresh evidence (as the case may be), or for an adjournment (if necessary) to enable the party to adduce evidence of the new fact or the fresh evidence, was refused."
Counsel for both parties submitted this Court should apply the test for the admission of fresh evidence stated by Dixon CJ in Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 at 444-445:
"If cases are put aside where a trial has miscarried through misdirection, misreception of evidence, wrongful rejection of evidence or other error and if cases of surprise, malpractice or fraud are put on one side, it is essential to give effect to the rule that the verdict, regularly obtained, must not be disturbed without some insistent demand of justice. The discovery of fresh evidence in such circumstances could rarely, if ever, be a ground for a new trial unless certain well-known conditions are fulfilled. It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial.
In Orr v Holmes (1948) 76 CLR at 640 - 642 there are collected a number of different expressions which have been judicially used at various times. Their result is then summed up in these words:¯'No doubt some of the foregoing expressions are susceptible of a weaker application than others to them. But the evident purpose of all of them is to ensure that new trials will not be granted because of fresh evidence unless it places such a different complexion upon the case that a reversal of the former result ought certainly to ensue. The fact which the new evidence tends to prove, if it does not itself form part of the issue, must be well nigh decisive of the state of facts upon which the issue depends. The evidence must be so persuasive of the existence of the fact it tends to prove that a finding to the contrary, if it had been given, would, upon the materials before the court, appear to have been improbable if not unreasonable'."
In Ladd v Marshall [1954] EWCA Civ 1; [1954] 1 WLR 1489, Denning LJ dealt with the equivalent English RSC, O 59, r 10(2), which provided that evidence was not to be admitted on appeal "except on special grounds". At 1491 his Lordship applied a somewhat less strict test as to the possible impact of the fresh evidence, and said:
"... first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible."
In New South Wales, the Supreme Court Act 1970 (NSW), s 75A(7), also provides that the Court of Appeal is not to receive further evidence on appeal "except on special grounds". The principles to be applied to that provision stem from the judgment of Clarke JA (with whom Sheller JA agreed) in Akins v National Australia Bank (1994) 34 NSWLR 155 at 160, to the effect that, in general, three conditions must be satisfied before a court admits further evidence of matters occurring before the hearing: "(1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible". In Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346, 53 NSWLR 116, Heydon JA (with whom Mason P and Young CJ in Eq agreed) at 124 [14], determined that the three criteria identified in Akins are "not exhaustive".
The competing policy considerations underlying the authorities to which I have referred require balance between the requirement for flexibility to meet the demands of justice, and the need for finality in litigation. In CDJ v VAJ (1998) 197 CLR 172 at 199, the High Court noted that tests such as those applied in Wollongong Corporation are based on the need for finality in litigation, but continued:
"Moreover, even at common law, the grounds for admitting further evidence of matters occurring before judgment were not inflexible. The common law courts have always reserved to themselves an exceptional power to set aside a verdict on the ground of further evidence where the interests of justice require it."
In McCann v Parsons (1954) 93 CLR 418 at 430-431, Dixon CJ, Fullagar, Kitto and Taylor JJ considered whether a new trial should have been granted because of fresh evidence and stated:
"The grounds upon which the court proceeds in granting the remedy have been settled by practice but they have never become completely stereotyped; they have always possessed some flexibility and have been governed by the overriding purpose of reconciling the demands of justice with the policy in the public interest of bringing suits to a final end."
The desirability of finality received particular emphasis in Coulton v Holcombe (1986) 162 CLR 1 in which Gibbs CJ, Wilson, Brennan and Dawson JJ observed at 7 that:
"It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish."
Again in the context of an application for a grant of a new trial, the matter was expressed by Jordan CJ in R v McDermott(No 1) (1947) 47 SR (NSW) 379 at 381-382 as follows:
"A civil court deals with cases in which a dispute concerning civil rights is thrashed out by contesting parties, ordinarily with legal assistance. The function of the Court is ... to see that the contest is carried on with due decorum and in proper legal form - and then to decide, or assist in deciding, the matter in dispute. When once a decision has been given, it is of the highest importance that it should not be disturbed except for some reason of great weight. 'No element in the administration of justice is so destructive of its efficiency as uncertainty; and no grievance more sorely felt by suitors than that which snatches success away at the moment of its accomplishment, and sets all abroad and in doubt again after one complete hearing and decision. Nothing shakes so much that confidence in the law which it is the first duty of all tribunals to uphold': Scott v Scott (1863) 3 Sw & Tr 319 at 322. ... 'It has never been the habit in Westminster Hall to grant new trials on the simple ground that the party could make the same case stronger by corroborating testimony (even though newly discovered) if another trial were allowed. And if it were otherwise, there are few cases that would not be tried a second time': Scott v Scott (1863) 3 Sw & Tr 319 at 326."
All of the foregoing is to be considered as subject to the legislation which applies to such appeals in this State. Consequently, care is required before application of the Wollongong Council test, unqualified, to this application. As was pointed out by Gleeson CJ in Eastman v The Queen [2000] HCA 29, 203 CLR 1 at 11 [14], where intermediate appellate courts in Australia have conferred upon them by statute power to receive and act upon evidence which was not before the court at first instance, the "relevant statute ordinarily defines the conditions and limits of the exercise of the power". In CDJ v VAJ (above) McHugh, Gummow and Callinan JJ said at 197 [95]:
"… apart from [a] special jurisdiction of the House of Lords, in the absence of statute there was and still is no basis for an appeal from a verdict of the common law courts. If a right of appeal is conferred by statute, the terms of the statutory grant determine the nature of the appeal and consequently the right, if any, to adduce further evidence on the appeal." [Footnotes omitted.]
In the analysis of the authorities undertaken by Crawford J (as he then was) in Fernando v Medical Complaints Tribunal [2004] TASSC 130, 12 Tas R 366, his Honour correctly pointed out that the Wollongong Corporation case stated the test to be applied to fresh evidence on motions for a new trial in civil cases. Such applications in Tasmania are to be considered as subject to the provisions of s 50 of the SCCP Act. Section 50 requires the Court to be satisfied, before it may order a new trial, that (1) the evidence could not by reasonable diligence have been discovered or, if it were discovered immediately before or during the trial attempts to introduce it or obtain an adjournment were refused; (2) that the evidence is such as to be believed; and (3) if believed, would "form a determining factor".
In contrast, it is s 48(3) which applies to applications for special leave to adduce evidence on the hearing of an appeal to this Court. Regard is to be had to the difference between the two provisions. Section 48(3) makes no reference to the credibility and the determinative quality of the further evidence. Further, s 48(3) refers, for some reason, to possession of the further evidence as opposed to the discovery of fresh evidence.
I now turn to consideration of s 48(3) in the circumstances of this case.
Section 48(3)(a)
For this Court to be satisfied that the grant of leave may be made on satisfaction of the pre-condition in s 48(3)(a), the appellant must establish that Mr Chaplin's evidence was not in his "possession" and "could not by proper diligence have been obtained by the appellant before the termination of the trial".
The appellant submits that because the further evidence now sought to be admitted is the "oral testimony of Mr Chaplin" it was, by definition, not in the appellant's possession. The submission seeks to confine the meaning of the term "possession" to the sense of having possession of a physical object, such as a document. The submission is unsupported by authority and should be rejected. To so confine the meaning would exclude the operation of s 48(3) to oral evidence and is inconsistent with reference in the section itself to further evidence about "matters which have occurred". None of the numerous authorities which consider similar provisions in Australia and in the United Kingdom have suggested that they do not extend to oral evidence. It is not necessary in these reasons to define all the circumstances in which it might be said that evidence is in the possession of a person. The evidence which the appellant now seeks to admit from Mr Chaplin had been discovered and was known to the appellant before the trial. Substantially the same evidence had been adduced by the appellant in earlier proceedings and was available to be admitted at the trial of the action. In that sense the evidence was relevantly in the appellant's possession.
The appellant contends that the evidence of Mr Chaplin could not by proper diligence have been obtained by the appellant before the termination of the trial. The appellant submits that he was "prevented" from obtaining the evidence by the trial judge's ruling. In my respectful view, once the learned trial judge realised that his conclusion that leave was required for issue of the subpoena was wrong, his Honour should have raised the issue in open court on resumption of the trial the following day, 2 December 2014. Instead, he sent an email to the parties, in the terms I have already set out, expressing the apparently concluded view that he had made the correct decision on the previous day but for the wrong reasons. The result was that neither party, most particularly the appellant as the party intending to rely on the subpoena, was offered the opportunity to make further submissions or to question the correctness of his Honour's amended view. However, despite these observations about how the issue was dealt with, the course his Honour took does not justify the conclusion that Mr Chaplin's evidence could not by the exercise of proper diligence have been obtained by the appellant before the termination of the trial.
Before this Court, the parties made submissions directed at the question of whether the trial judge's ruling that the subpoena addressed to Mr Chaplin was not effectively served was correct. The appellant contends it was not correct, and that he was thereby deprived of the opportunity to admit evidence from Mr Chaplin. A subpoena issued in a State by a court may be served in another State: SEP Act, s 29(1). Service must be effected in the same way as service of a subpoena in the place of issue: s 29(2). Section 30 concerns time for service of a subpoena. Because it has particular relevance to this application I will set out the terms of it in full:
"30 Time for service
(1) Service of the subpoena is effective only if the period between service and the day on which the person to whom the subpoena is addressed is required to comply with the subpoena is not less than:
(a) 14 days; or
(b) such shorter period as the court of issue or the authority of issue, on application, allows.
(2) The court or authority may allow a shorter period only if it is satisfied that:
(a) the giving of the evidence likely to be given by the person to whom the subpoena is addressed, or the production of a document or thing specified in the subpoena, is necessary in the interests of justice; and
(b) there will be enough time for the person:
(i)to comply with the subpoena without hardship or serious inconvenience; and
(ii)to make an application under section 33.
(3) In granting an application, the court or authority:
(a) is to impose a condition that the subpoena not be served after a specified day; and
(b) may impose other conditions."
The reference in s 29(2) to service in the place of issue incorporates the provisions of the Supreme Court Rules 2000 (Tas). Under the Rules, a subpoena must be served personally: r 498. The issuing party may give notice to the addressee of a subpoena to attend at a date or time later than that specified in the subpoena whereupon the subpoena is effective for the later date and time: r 496A. A judge may set aside a subpoena in whole or in part, or grant other relief in respect of it: s 497. The appellant placed particular reliance on r 146B concerning informal service. That rule provides:
"146B Confirmation of informal service
If for any reason a document required to be served on a person is not served on the person in the manner required by these rules but the document comes to the person's notice, the document is nevertheless taken to have been served on the person on the day on which it came to the person's notice."
The learned trial judge was correct to conclude that there had not been timely service of the subpoena. The email copy of the subpoena was sent by Mr Murphy to Mr Chaplin 13 days before 2 December 2014, the date Mr Chaplin had been told by Mr Murphy he needed to appear. Personal service was effected only nine days before then. The appellant contends that Mr Murphy's telephone advice to Mr Chaplin about the subpoena on Sunday 16 November 2014, amounts to informal service and r 146B operates such that the subpoena is taken to have been served on that day. Unless that submission is correct, there had not been compliance with the requirement for service of the subpoena at least 14 days prior to the date for compliance imposed by the SEP Act, s 30(1)(a). I note in passing that counsel for the respondent relied on r 49 which provides that a writ, pleading, notice, application, order or other document "must not be served on a Sunday, Good Friday or Christmas Day". In my view, that rule makes no difference to this application.
The trial judge was not referred to the terms of r 146B. However, in my view, telephone advice of the nature described does not constitute effective informal service, and the trial judge did not fall into error by not resorting to the rule. Mr Chaplin deposed that Mr Murphy told him of the subpoena and gave him the details of it, without specifying what the details were except that it required him "to attend court in Hobart on 1 December 2014 at 10am to testify". The rule does not state how it is that a document "comes to a person's notice". This Court was not directed to any authority on the point. I do not intend in these reasons to attempt to exhaustively define the circumstances in which a document may come within the operation of the rule. In this case the evidence does not address whether the telephone advice included explanation of all of the other information required to be included in the prescribed form of the subpoena, or the information in the notice to witness required by the SEP Act, s 31. If the appellant's contention is correct, and the phone advice amounts to the subpoena coming to Mr Chaplin's notice, then the advice would trigger all of the obligations imposed on the addressee of the subpoena by effective service without the benefit of the other information to which I have referred, some of which concerns the rights of the addressee. I do not accept that to be a correct statement of the operation of the rule. What r 146B requires is that the document comes to a person's notice, not just oral advice about part of the contents of a document. Comparison with how the appellant's argument may operate for personal service of originating process, such as a writ, serves to illustrate the point. If the appellant is correct then a writ may be informally but effectively personally served, thus triggering the time for entry of an appearance, simply by telling a defendant on the phone about the existence of a writ, the nature of the cause of action it alleges, and the requirement that the person enter an appearance within a limited time, all without the defendant having seen the document at all.
Nothing done by the trial judge erroneously diverted the appellant from a right to enforce the subpoena. In any event, even if the conclusion I have reached about r 146B is wrong, I do not think that the correctness or otherwise of his Honour's ruling is determinative of the question of whether Mr Chaplin's evidence could not by proper diligence have been obtained. I reject the appellant's submission that his Honour's ruling deprived the appellant of the benefit of Mr Chaplin's evidence. The appellant and his advisors had known for a long time of the evidence they sought to admit from Mr Chaplin. The appellant now contends that the evidence was critical to the just disposition of the action. No subpoena was issued to Mr Chaplin until, I would infer, it was apparent that he had become an unwilling, or at least unco-operative, witness. There is no evidence about when Mr Chaplin's unwillingness became known to the appellant and his advisors. It is not established that the need to issue and serve a subpoena became apparent too late to have the subpoena issued and served in a timely way. It does not matter whether the responsibility lay with the appellant or others. The actions or inaction of the lawyers acting for a party seeking to lead the further evidence are attributed to that party when deciding whether "reasonable diligence" has been exercised: Hampson v Hampson [2010] NSWCA 359 at [34]-[38]. Counsel for the appellant submitted to this Court that his Honour's email ruling effectively bound the appellant and could not be questioned. The initial direction given by his Honour on 1 December 2014 was that there was "no present obligation for the witness to attend". His Honour's later email adopted the same direction. There was no order expressed in terms of setting the subpoena aside. There were steps available to the appellant, with reasonable diligence, to secure Mr Chaplin's attendance at trial, none of which would have been discourteous or disrespectful to the trial judge. There was no attempt to refer his Honour to r 146B to persuade him to alter his interlocutory ruling. The trial continued for 10 sitting days and did not terminate until 12 December 2014. Despite the claimed importance of Mr Chaplin's evidence, no application was made to abridge time for service of the existing subpoena under s 30(1)(b). No application was made to abridge time for service of a new subpoena. There is no evidence that any steps were taken to arrange by agreement for Mr Chaplin to attend on a later day. No application was made under the Evidence (Audio and Audio Visual Links) Act 1999 to have Mr Chaplin's evidence taken by video link from Victoria. No application was made for an adjournment of the trial so that Mr Chaplin's attendance could be secured.
I am not persuaded that the further evidence of Mr Chaplin now sought to be admitted on the hearing of the appeal could not by proper diligence have been obtained by the appellant before the termination of the trial. The circumstances justifying the grant of special leave under s 48(3)(a) are not made out.
It is thus unnecessary to consider whether special leave may be refused even if the pre-condition in s 48(3)(a) is satisfied.
Section 48(3)(b)
Special leave to admit further evidence may also be given if there is some other special circumstance which, in the opinion of the Court, justifies the admission of the evidence. The appellant submits that there are special circumstances in this case which justify the grant of leave.
The appellant contends that one such special circumstance is the error committed by the trial judge in his Honour's ruling about the subpoena. I have already concluded that his Honour's ruling was not in error in the manner contended by the appellant. However, as a matter of statutory construction, it could not be a special circumstance for the purposes of s 48(3)(b) that the further evidence was not in the possession of the party seeking to admit it, and could not have been obtained with reasonable diligence for use at the trial, because such considerations are expressly dealt with by s 48(3)(a). Subsection (3)(b) deals with "some other special circumstance". For that reason the correctness of the trial judge's ruling about the subpoena to Mr Chaplin is irrelevant to consideration of s 48(3)(b). The claim that the appellant's advisors were deterred by his Honour's ruling from seeking to compel Mr Chaplin's attendance is the same argument, in a different guise, as was unsuccessfully advanced concerning s 48(3)(a).
The substance of the appellant's contention is that reception of Mr Chaplin's evidence is, using the words of Dixon CJ in Wollongong Corporation at 441, an "insistent demand of justice". The appellant contends that "it is reasonably clear that Mr Chaplin's evidence would have produced a verdict for [the appellant]" because:
(a)His evidence is inherently credible and very persuasive;
(b)He directly heard, and will testify as to, the operative words used by [the appellant] and Mr Farrer which constitute the offer and acceptance underlying the contract that the appellant alleges;
(c)In the face of Mr Chaplin's evidence, Mr Farrer would have had great difficulty in denying those operative words;
(d)Mr Farrer could not have avoided facing that issue squarely as he did, by simply denying that he had met Mr Allison on the relevant day;
(e)Once it is accepted that the two men concluded a contract as alleged, the relief that Mr Allison seeks most likely follows.
In his affidavit, Mr Chaplin deposes that the appellant and Mr Farrer were among a number of guests at his home on 1 October 1994. He claims to have heard a lengthy discussion between the two men about a proposal by the appellant that "they should start a tuna fishing operation together in Tasmania". According to Mr Chaplin, the appellant told Mr Farrer that there was money to be made, but he lacked the capital to buy ships and fishing licences. The appellant, he says, was looking for someone to invest money to put his ideas into effect. Mr Chaplin heard the appellant propose to contribute a tugboat and some land he controlled, as well as his knowledge and experience. Mr Chaplin deposes that he heard one of the men, he thought Mr Farrer, say that "they would need to decide on a business structure and would need a lawyer to draw it up". After seeking Mr Chaplin's advice about the proposal Mr Farrer said words to the effect, "It's a good idea, let's do it." One part of Mr Chaplin's affidavit was objected to. He deposes that "there was never any doubt in my mind but that the two men had reached an agreement". It was agreed by counsel for the parties that the objection would be determined in the course of these reasons. In my view, Mr Chaplin's belief about whether an agreement had been reached is irrelevant and thus inadmissible. Whether an agreement was reached was a question for the trial judge or this Court. However, even if that evidence were admitted, my view of the result of the applications is unaffected.
I do not accept the appellant's contention that the grant of leave is necessary to serve the interests of justice in this case. To the contrary, my view is that the circumstances of the case militate strongly against the grant of special leave.
As was pointed out by Porter J in Calvert v Badenach[2015] TASFC 8 at [46], although this is an appeal by way of rehearing, the appellant nonetheless needs to show an error on the part of the trial judge. This Court may substitute its own findings of fact for those of the learned trial judge in an appropriate case, in accordance with the principles discussed by the High Court in Fox v Percy (above); Suvaal v Cessnock City Council [2003] HCA 41, 77 ALJR 1449; Pledge v Roads and Traffic Authority [2004] HCA 13, 78 ALJR 572; Anikin v Sierra [2004] HCA 64, 79 ALJR 452; Commissioner of Main Roads v Jones [2005] HCA 27, 79 ALJR 1104; and Roads and Traffic Authority v Royal [2008] HCA 19, 82 ALJR 870. For example, for a factual question depending on assessment of oral evidence, this Court may intervene when the factual decision made at trial is clearly wrong: Fox v Percy at [28]. However, where the credibility or demeanour of witnesses has played an essential part, an appellate court will only interfere if the trial judge has failed to use, or has palpably misused his or her advantage, or has made findings inconsistent with incontrovertible facts, or has acted on glaringly improbable evidence, or has made findings contrary to compelling inferences: Fox v Percy at [29]. See also the judgment of McHugh J at [66] where his Honour cited Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 in which he, Brennan and Gaudron JJ said at 479:
"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'." [Footnotes omitted.]
It can safely be assumed that the evidence of Mr Chaplin, if admitted, will be strongly contested by the respondents. It is obvious that the credibility and demeanour of the appellant and Mr Farrer played a fundamental part in the trial judge's findings. There is no basis to conclude, one way or another, whether Mr Chaplin's evidence is credible. However, in my view, the appellant overstates the importance of the evidence of Mr Chaplin's observations of the meeting of 1 October 1994, both as to the exchange between the two men and how the exchange may illuminate subsequent events. Mr Chaplin says nothing about the subsequent dealings between the appellant and Mr Farrer or the documentary evidence which came into existence, all of which was of primary importance to the findings of the trial judge.
This Court does not have the advantage the trial judge enjoyed of hearing and observing the appellant and Mr Farrer. Mr Farrer is now dead. I think that considerations of justice arise from the distinction between hearing further evidence on appeal and an application for a retrial. I do not consider it safe to reach any conclusions about whether, and if so to what extent, the proposed evidence from Mr Chaplin would have affected, or still less been influential in, the trial judge's factual findings. Moreover, I regard it as unlikely that Mr Chaplin's evidence would materially increase the prospect that the appellant is entitled to the relief he seeks, that is, that the result of the case be reversed and that judgment be awarded in his favour. Mr Chaplin's evidence would necessarily be regarded with caution. Evidence given on appeal would be in full knowledge of everything that was said at the trial by Mr Farrer. Not only may the evidence be prompted or coloured by knowledge of the trial, but would be given when the respondents are no longer able, because of Mr Farrer's death, to fully address it. In all of those circumstances, considerations favouring finality of the litigation point against permitting the evidence to be admitted on appeal.
I think that there are other reasons why the balance of justice points to the refusal of the application:
· At the relevant time, Mr Chaplin was an unwilling witness. He did not attend the trial voluntarily. In his affidavit he deposes simply that because he was excused from attendance under the subpoena "he did not attend the trial".
· Mr Chaplin says he will now give evidence because he "was angry" when informed that Mr Farrer had given evidence which Mr Chaplin believes to be false and damaging to his "friend", the appellant. The evidence Mr Chaplin refers to is Mr Farrer's evidence that there was no meeting at Mr Chaplin's house on grand final day 1994, that the tendered photos were not taken at Mr Chaplin's house, and that Mr Farrer and the appellant had not reached any agreement because they did not meet that day. Mr Chaplin deposes that he believed that he had succeeded in his aim to "bring people together in the hope that some business deals would be done".
· The substance of Mr Farrer's evidence about these matters was clear to the appellant well before the end of the trial. Mr Farrer gave evidence commencing on 8 December 2014. His evidence-in-chief was principally in the form of a written witness statement which was tendered as an exhibit. His evidence about the events of 1 October 2004 is addressed in that statement. That statement is dated 8 December 2014, but must have been given to counsel for the appellant before then. The cross-examination of Mr Farrer concluded on 9 December 2014. The appellant was recalled so that facts asserted by Mr Farrer in evidence could be put to the appellant in cross-examination, because they had not been previously put. There was no application by the appellant to call Mr Chaplin to rebut evidence of Mr Farrer.
I am not persuaded of the existence of any special circumstance which justifies the grant of leave.
Application to amend the grounds of appeal
The appellant applies to amend the grounds of appeal by adding three grounds, proposed grounds 9, 10 and 11, in these terms:
"9 The learned trial judge erred in law:
(a)in construing the Service and Execution of Process Act (Cth) as requiring leave from the Supreme Court, for valid interstate service of a subpoena issued by the Supreme Court on Stephen Chaplin, when such leave is required only for interstate service of a subpoena issued by an inferior tribunal; and
(b)further or alternatively, in setting aside the said subpoena which it had been duly served on the said Stephen Chaplin.
10 Consequently:
(a)Mr Chaplin's evidence not being available to the appellant, he could not, due to the said error of law, have obtained it by proper diligence before the termination of the trial;
(b)the said error of law constituted a special circumstance which justifies the admission of evidence from Mr Chaplin.
11 Mr Chaplin's evidence would have:
(a)been determinative in the Appellant's favour; or
(b)alternatively, and at the very least, greatly strengthened the case at trial."
What I have already said in these reasons disposes of the application to amend. None of the proposed grounds has merit. Proposed ground 9(a) correctly asserts that the trial judge erred in accepting the submission that leave for interstate service of the subpoena was required. However, it was an error of no consequence. His Honour correctly determined that the subpoena had not been personally served in compliance with the time requirement for effective service in s 30. His Honour did not make an order setting the subpoena aside. He made a direction to similar effect, that Mr Chaplin was under "no present obligation" to attend. There was no error in doing so. In the circumstances of this case, his Honour's direction did not mean that Mr Chaplin's evidence was not available to the appellant and it could, by the exercise of proper diligence, have been obtained before the termination of the trial. Those conclusions determine the proposed grounds 9(a) and (b) and 10(a). Grounds 10(b) and 11 raise issues relevant to the grant of special leave, but are not proper grounds of appeal. It would be wrong for this Court to permit a ground of appeal based on evidence not called at the trial and which is the subject of an unsuccessful application for leave to admit it before the appeal court.
Result and orders
I would refuse the application for special leave for this Court to receive further evidence on the hearing of the appeal. I would also refuse the application to amend the grounds of appeal.
File No 1207/2015
PAUL FRANCIS ALLISON v TUNA TASMANIA PTY LTD,
SHARON TINA FARRER as representative of the estate of
JOHN FREDERICK FARRER (deceased),
LAWRENCES MOTORS PTY LTD as trustee of
the Farrer Superannuation Fund and as trustee of
the Farrer Superannuation Fund (No 2), and
HAVENFLASH PTY LTD as trustee of the Farrer Family Trust
REASONS FOR JUDGMENT FULL COURT
BRETT J
7 September 2017
I agree with Pearce J. For the reasons expressed by his Honour, I would also refuse both applications.
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