Aon Risk Services Australia Limited v Australian National University
[2010] ACTCA 28
•29 November 2010
AON RISK SERVICES AUSTRALIA LIMITED v AUSTRALIAN NATIONAL UNIVERSITY [2010] ACTCA 28 (29 November 2010)
PRACTICE AND PROCEDURE – whether a decision by a single judge of the Court not to rule certain evidence inadmissible one year before the trial is an “interlocutory order” within s 37E(4) of the Supreme Court Act 1933 (ACT) and thus susceptible to an application for leave to appeal from that decision before final judgment is delivered – in the circumstances of the present case, the decision of the primary judge not to exclude evidence in advance of the trial held not to be “an interlocutory order” within s 37E(4) – application for leave to appeal incompetent – even if, contrary to the Court’s conclusion, the application for leave to appeal in the present case was competent, leave to appeal should be refused – application dismissed with costs
Criminal Appeal Act 1912 (NSW), s 5F
Evidence Act 1995 (Cth), s 4, s 192A
Supreme Court Act 1933 (ACT), s 37E(4)
Supreme Court Act 1970 (NSW), s 101
AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 referred to
Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd [1996] NSWCA 14 applied
Australian Securities and Investments Commission v Rich (2005) 218 ALR 764; (2005) 54 ACSR 326 cited
R v Adamson [2005] NSWCCA 7 applied
R v Bozatsis; R v Spanakakis (1997) 97 A Crim R 296 cited
R v Piper [2005] NSWCCA 134 applied
R v Steffan (1993) 30 NSWLR 633 applied
Rich v Australian Securities and Investments Commission (2005) 54 ACSR 365 followed
WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 applied
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 5 – 2010
No. SC 808 of 2004
Judges: Higgins CJ, Mansfield and Foster JJ
Court of Appeal of the Australian Capital Territory
Date: 29 November 2010
IN THE SUPREME COURT OF THE ) No. ACTCA 5 – 2010
) No. SC 808 of 2004
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:AON RISK SERVICES AUSTRALIA LIMITED
Applicant
AND:AUSTRALIAN NATIONAL UNIVERSITY
Respondent
ORDER
Judges: Higgins CJ, Mansfield and Foster JJ
Date: 29 November 2010
Place: Sydney (via video link to Canberra)
THE COURT ORDERS THAT:
The application for leave to appeal from the decision of Gray J given on 8 February 2010 filed by the applicant on 12 February 2010 be dismissed.
The applicant pay the respondent’s costs of and incidental to the said application.
IN THE SUPREME COURT OF THE ) No. ACTCA 5 – 2010
) No. SC 808 of 2004
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:AON RISK SERVICES AUSTRALIA LIMITED
Applicant
AND:AUSTRALIAN NATIONAL UNIVERSITY
Respondent
Judges: Higgins CJ, Mansfield and Foster JJ
Date: 29 November 2010
Place: Sydney (via video link to Canberra)
REASONS FOR JUDGMENT
THE COURT:
In 2004, the Australian National University (ANU) commenced an action against three insurers (who were the first, second and third defendants in that proceeding) (the insurers). In 2005, ANU joined AON Risk Services Australia Limited (AON) as the fourth defendant in that proceeding. AON is an insurance broker. Throughout the period from 1999 to late December 2002, AON had acted as ANU’s insurance broker.
In 2002, AON was retained by ANU to arrange cover for the 2003 calendar year for certain buildings, building contents, plant and equipment which was the property of ANU. There is a dispute between ANU and AON as to the terms of that retainer.
On 18 January 2003, several buildings and their contents located on one of the ANU campuses in Canberra were destroyed or severely damaged by fire. Certain plant and equipment was also damaged or destroyed in the same fire.
As between ANU and the insurers, there was an issue in the proceeding as to whether there was one contract of insurance or several contracts of insurance. In addition, there were issues concerning the extent of the cover provided by those insurers. There were also other issues as between ANU and two of the insurers.
On 15 November 2006, which was the third day of what was then expected to be a four week trial, ANU settled its claims against the insurers. Consent judgments were subsequently entered. ANU then applied for an adjournment of the trial and for leave to amend its Statement of Claim to add a substantial new claim against AON based on allegations that AON had been obliged to ascertain and declare the correct value of ANU’s property to the insurers and to provide certain advice to ANU.
On 12 October 2007, Gray J granted leave to amend to ANU.
AON appealed to this Court. The challenge to his Honour’s decision to allow the amendment was dismissed. AON then sought Special Leave to Appeal to the High Court. Special Leave was granted and the appeal ultimately allowed (AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175). The High Court’s decision was handed down on 5 August 2009.
The matter was then remitted to Gray J. His Honour has been case managing the proceeding since its remitter. He has tentatively fixed the proceeding for final hearing before him commencing on 31 January 2011.
THE PRESENT APPLICATION
AON seeks leave to appeal from what it describes in its Application filed in this Court as a “Judgment” of Gray J given on 8 February 2010. AON contends that the decision made by his Honour on 8 February 2010 not to rule inadmissible in advance of the trial certain affidavit evidence proposed to be presented by ANU at the final hearing of the proceeding below is an “interlocutory order” within s 37E(4) of the Supreme Court Act 1933 (ACT) (the Supreme Court Act). If leave to appeal is granted, AON will rely upon the following grounds of appeal:
(a) The primary judge erred in refusing to allow AON to cross-examine ANU’s solicitor in respect of evidence given by him before Gray J on 8 February 2010; and
(b) The primary judge misapplied the relevant principles and otherwise wrongly exercised his discretion by refusing to exclude certain contentious evidence in advance of the trial.
AON indicated to the Court that Ground (a) would be pressed if leave to appeal were granted. We are of the view that that ground would have no prospect of succeeding. Ground (b) is at the heart of the argument which AON advanced before us in support of its application for leave to appeal.
At the time when his Honour made the ruling about which AON complains, his Honour had been appointed as the trial judge, a circumstance which was then known to the parties.
On 8 February 2010, there was a formal Application before his Honour. That Application had been filed on 1 February 2010. By that Application, AON sought the following orders:
1.A direction that the plaintiff not be permitted to rely at the hearing of these proceedings upon any affidavit evidence filed and served by the ANU on or after 11 April 2006 or any document filed and served by the ANU on or after 10 November 2006 except for evidence the need for which arises out of the amendments contained in the Second Further Amended Statement of Claim.
2.Further, or in the alternative to Order 1 above, pursuant to s. 192A of the Evidence Act, an order that the following evidence filed and served by the plaintiff in these proceedings is inadmissible, or is unable to be used, in the proceedings:
a.The affidavit of Jane Elizabeth Willcocks, affirmed 22 August 2008.
b.The affidavit of Colin J G Smith, affirmed 2 December 2009.
c.The affidavit of Jane Elizabeth Willcocks, affirmed 3 December 2009.
3.Costs.
4.Any other orders that the Court considers appropriate.
In its formal Application, AON advanced 17 grounds in support of the orders which it then sought. In essence, AON contended that the evidence in respect of which it sought an advance ruling was irrelevant and also that that evidence had been filed and served outside the time previously limited by directions made by the primary judge.
At the conclusion of argument on 8 February 2010, his Honour said (at transcript 54/9–28):
Well, as my rulings are, in effect, that the evidence that’s sought to be adduced is relevant to the issues, and in so far as it is relevant to the issues, that are raised in the pleadings that I would not prevent the plaintiff from relying upon that evidence. And my ruling in that regard really relates to considering the whole of the material that the plaintiff wishes to adduce and accepting that there are particular objections that may be made to aspects of it as far as relevance is concerned.
But I don’t consider that section 192A, at this stage, is an appropriate mechanism of determining those objections to that evidence when the evidence is being admitted – when, I’m sorry, when the plaintiff’s case really relates to – sorry. I’ll start that again – where the plaintiff has identified the evidence and documents that its case will encompass.
Now that is not to say that the plaintiff can accept or the plaintiff can make use of that evidence for the purposes of expanding the case as pleaded and the evidence can only be adduced if it is shown to be relevant to the case that’s pleaded. But at this stage, I don’t consider that section 192A is an appropriate procedure for the purposes of making those determinations.
His Honour then dismissed AON’s Application with costs.
His Honour’s decision to dismiss the Application which had been filed by AON on 1 February 2010 has not been reflected in any formal Order entered subsequently.
The issues which arise in the present Application may be summarised as follows:
(a) Is his Honour’s decision to dismiss AON’s application for an advance evidentiary ruling an interlocutory order within s 37E(4) of the Supreme Court Act? If not, the current Application must be dismissed as incompetent.
(b) If his Honour’s ruling is an interlocutory order, then the question arises as to whether this Court should grant leave to appeal and then overturn his Honour’s discretionary decision not to exclude in advance of the trial evidence proposed to be tendered at the trial by ANU and, in that event, should the discretion called for by AON’s application be re-exercised by this Court or, alternatively, should the matter be remitted to his Honour to be reconsidered in light of the Reasons for Judgment of this Court.
ANU’S PLEADED CASE
The current version of ANU’s Statement of Claim is the document styled Second Further Amended Statement of Claim dated 9 November 2009 (the Statement of Claim). Gray J granted leave to ANU to file and serve that version of its Statement of Claim at the directions hearing which took place on 9 November 2009. This was after the High Court’s decision in AON v ANU 239 CLR 175. That version of ANU’s Statement of Claim differs from ANU’s original Statement of Claim and also from the proposed Amended Statement of Claim which was rejected by the High Court in AON v ANU 239 CLR 175.
In par 8 of the Statement of Claim, ANU claims that, at a date prior to 18 January 2003, it effected insurance with the insurers for the period from 31 December 2002 to 31 December 2003. At pars 9–15 of the Statement of Claim, ANU pleads various terms of that insurance contract.
At pars 16 and 17 of the Statement of Claim, ANU pleads that several buildings covered by the contract of insurance were destroyed by fire, that other buildings were damaged and that plant, machinery and equipment housed in the buildings were either destroyed or damaged. It claimed against the insurers losses totalling $61,420,437 in relation to the buildings, contents and other items specified on two lists. Those lists are known amongst the parties and described in the Statement of Claim as “the Schedule C list” and “the PNI list”.
ANU’s pleaded case against AON commences at par 24 of the Statement of Claim.
Paragraphs 25–30 of the Statement of Claim are in the following terms:
25.In the period immediately preceding the period of currency for the contract of insurance, the plaintiff was an insured under the Industrial Special Risks insurance cover arranged by the fourth defendant in respect of, inter alia, the destruction and/or damage and consequential loss arising from the destruction and/or damage of the buildings and contents described in two lists of buildings that comprised Schedule C attached to the ISR Renewal Endorsement dated 24 May 2002 (‘the expiring cover’), and entitled:
(a)“The Australian National University (Schedule C) Property and Business Interruption Period 31 December 2001 to Period 31 December 2002”
(b)“The Australian National University Properties Not Insured Period 31 December 2001 to 31 December 2002”.
26.The fourth defendant was retained for reward to arrange for the renewal of the expiring cover for the period 31 December 2002 to 31 December 2003 in respect of all buildings insured under the expiring cover and their contents (‘the Aon retainer’).
Particulars
Agreement dated 28 June 1999 between the plaintiff and the fourth defendant the term of which was extended to 30 June 2004.
27.It was a term of the Aon retainer that the fourth defendant would exercise skill care and diligence to a high professional standard and would ensure the services provided were free from defects in performance, would meet their purpose and were complete in arranging for renewal of the expiring cover.
Particulars
Aon retainer, Clause 10.
28.Further or alternatively the fourth defendant owed to the plaintiff a duty to exercise reasonable care, skill and diligence in arranging for the renewal of the expiring cover.
29.Each of the following buildings and their contents was listed in the document referred to in paragraph 25(b) hereof –
67 MSO – Uppsala Schmidt telescope building
68 MSO – Reynolds Telescope building
69 MSO – Farnham Block
70 MSO – Boilerhouse
71 MSO – Pump House
72 Seismic Vault – RSES, Mt Stromlo
73 MSO – Temporary Electronics Workshop
74 MSO – Flammable Liquids Store
75 MSO – Yale Columbia Building
76 MSO – Oddie Dome
77 MSO – Fire Tender Shed/Hydrants
78 MSO – 50” telescope building
29A.The first, second and third defendants pleaded and contended that there were separate contracts of insurance between the plaintiff and each of the first, second and third defendants the terms of which were different to those of the contract of insurance referred to in paragraph 8 above.
Particulars
Para 5 of the defence of the first defendant
Para 2 of the defence of the second defendant
Para 2 of the defence of the third defendant
30.The second and third defendants did not admit that the lists referred to in paragraph 25(a) and (b) hereof and in particulars f(i) and (ii) to paragraph 8 hereof comprised part of the contract of insurance or of the separate contracts of insurance with the second and third defendants referred to in paragraph 29A and the first defendant denied that the documents referred to in particulars (d), (e) and (f) (apart from the schedule referred to in f(i)) of paragraph 8 hereof were incorporated in the contract of insurance or in the separate contract of insurance with the first defendant referred to in paragraph 29A.
Particulars
Para 5(d) and 13(b) of the defence of the first defendant;
Paras 2(e) of the defence of the second defendant;
Paras 2, 11, 12, 13 of the defence of the third defendant.
At pars 30A–30B of the Statement of Claim, ANU pleads the fact that it has settled its claims against the insurers and also pleads that the insurers have made or agreed to make payments to ANU totalling $34,391,557. ANU alleges that the settlements with the insurers constitute a reasonable compromise of its claims against each of them.
At par 30C, ANU pleads:
The plaintiff was unable to recover any amount from the first, second and third defendants arising out of the damage to or destruction of the buildings referred to in paragraph 29 or their contents because the first second and third defendants each denied that they had insured those buildings or the contents of those buildings.
The buildings and contents referred to in pars 29 and 30C of the Statement of Claim are buildings and contents which are listed in the PNI list. Thus, it is AON’s failure to procure cover for the buildings and building contents listed in the PNI list which is ANU’s core complaint.
The breach alleged against AON is to be found in par 31 of the Statement of Claim. That paragraph is in the following terms:
For the purposes of the claim against the fourth defendant only, and in the alternative to the claim against the first, second and third defendants, the plaintiff says that each of the buildings and their contents identified in paragraph 29 was not the subject of the contract of insurance or alternatively the separate contracts of insurance with the defendants referred to in paragraph 29A because the fourth defendant –
(i) in breach of the Aon retainer:
(ii) in breach of the duty of care identified in paragraph 28 above;
failed to arrange that insurance, failed to advise the plaintiff that it had not arranged that insurance and the plaintiff has thereby suffered loss and damage.
Particulars
(a)The plaintiff has not received the sums set out under the heading ‘Included on the PNI List’ in Annexure “A” hereto plus interest from the first, second and third defendants.
(b)the plaintiff has been delayed in making a commitment to, commencing or carrying out reinstatement work to the buildings;
(c)the plaintiff has been delayed in replacing plant machinery and contents;
(d)the delay has given rise to further loss in the form of escalating prices;
(e)the plaintiff has incurred legal cost.
ANU’s claims for relief against AON are made in par 32 of the Statement of Claim. In that paragraph, ANU claims:
(b)An order that the fourth defendant pay to the plaintiff the amount determined by the Court to be the cost or reinstatement and replacement [sic] any of the buildings referred to in paragraph 29 and the plant machinery and other contents of those buildings;
(c)An order that the fourth defendant pay the plaintiff damages arising from the fourth defendant’s breach of the Aon retainer and;
(d)Alternatively an order that the fourth defendant pay damages arising from the fourth defendant’s negligence.
ANU also claims interest and costs against AON.
The quantum of the claim now pressed by ANU against AON is approximately $27 million (being the difference between the quantum of its losses and the amount recovered from the insurers) plus interest and costs.
AON’S DEFENCE
AON admits the matters pleaded in pars 24 and 29 of the Statement of Claim. It denies the matters pleaded in pars 26, 27 and 28 of the Statement of Claim. It does not admit the matters pleaded in pars 30B and 30C of the Statement of Claim.
In answer to par 25 of the Statement of Claim, AON:
(a) admits that, in 2002, ANU was insured under an Industrial Special Risk insurance policy in respect of, inter alia, the destruction and/or damage and consequential loss arising from the destruction and/or damage of the buildings and contents described in two lists of buildings (the expiring cover) and titled:
(i) “The Australian National University (Schedule C) Property and Business Interruption Period 31 December 2001 to Period 31 December 2002” (the Schedule C list);
(ii) “the Australian National University Properties Not Insured Period 31 December 2001 to 31 December 2002” (the PNI list); and
(b) otherwise does not admit the allegations contained in that paragraph.
In its Defence, AON also pleads that some of the allegations made against AON in the proceeding are inconsistent with some of the allegations made against the insurers in the proceeding and that those allegations are also inconsistent with the judgments obtained by ANU against the insurers.
THE CONTENTIOUS EVIDENCE
There are three affidavits which AON sought to have excluded from evidence at the trial. These affidavits are:
(i) Affidavit of Elizabeth Jane Willcocks sworn on 22 August 2008 (Ms Willcocks’ First Affidavit);
(ii) Affidavit of Elizabeth Jane Willcocks sworn on 3 December 2009 (Ms Willcocks’ Second Affidavit); and
(iii) Affidavit of Colin Smith sworn on 2 December 2009 (Mr Smith’s Report)
Ms Willcocks has been employed by ANU in the period from October 1989 to date. For most of that time, she has acted as ANU’s Insurance Officer. Her duties in the period 1999 to 2002 involved dealing with insurance claims on behalf of ANU and preparing the paperwork for the renewal of ANU’s insurance cover. She was the officer of ANU who dealt with AON in respect of the renewal of ANU’s Industrial Special Risks Policies.
Mr Smith is said to be an expert on the practices of the insurance industry, including the practices of insurance brokers.
We shall deal with each of these affidavits in turn.
Ms Willcocks’ First Affidavit
This affidavit was sworn on 22 August 2008 but not served until early December 2009. Before Gray J, AON sought to have the entire affidavit excluded. Before this Court, AON refined its position. The paragraphs to which it ultimately objected were: pars 9–25; pars 26–50; pars 51–61; par 65; and par 85. Objection was not taken to pars 1–8; 62–64; 66–84 and 86–96.
The argument advanced by AON in support of the exclusion of the paragraphs which we have identified was that the contents of those paragraphs were plainly irrelevant to any issue or fact in issue in the proceeding. It was submitted on behalf of AON that evidence as to the placing of ANU’s cover through AON in respect of the 2000 year (pars 9–25 of the affidavit), the 2001 year (pars 26–50 of the affidavit) and the 2002 year (pars 51–61) was irrelevant.
No other particular objections were taken to those paragraphs.
Paragraph 65 of Ms Willcocks’ First Affidavit is in the following terms:
In the draft 2002 PNI list spreadsheet I listed the buildings that were not insured under either the Schedule A insurance or the Schedule C insurance and I added to that spreadsheet buildings that were insured by Chubb which IVC had determined had a value of less than $500,000 in 2000. I moved those buildings from the Schedule C spreadsheet to the draft 2002 PNI list spreadsheet because I believed that Chubb and the co-insurers of the Schedule C insurance would not pay a claim for those buildings if they were destroyed as they were valued at less than the $500,000 excess/deductible. I thought of those buildings as being ‘uninsured’ for that reason. I had no intention of removing any buildings or their contents from cover under the Chubb insurance and had no instructions or authority to do so. My intention in compiling the draft 2002 PNI spreadsheet was to identify for my superiors at the University the buildings that the University would have to pay for if they were destroyed. I did not consider the possibility of more than one building which was covered by the Chubb insurance being damaged or destroyed at the same time. I now realise that I did not understand the effect of excess/deductibles. I did not provide these draft spreadsheets to Aon.
That paragraph is found in that section of Ms Willcocks’ First Affidavit where she deals with events relating to the placing of ANU’s insurance cover for the 2002 year. Some of the material contained in that section of Ms Willcocks’ First Affidavit is objected to on the ground that it is irrelevant. Other material has not been objected to.
Paragraph 85 of Ms Willcocks’ First Affidavit, which is found in the section headed “Events relating to the 2003 insurance”, is in the following terms:
I identified properties where the buildings and their contents had a value of less than $1,000,000 in the sub $1,000,000 excess list spreadsheet as I believed at that time the University could not make a claim in the event of loss where a building and its contents were valued at less than the Chubb policy excess of $1,000,000. I did not consider a situation in which more than one building was damaged or destroyed by the same insured event.
Ms Willcocks’ Second Affidavit
In this affidavit, Ms Willcocks explains what she would have done in response to four hypothetical scenarios. The scenarios are entitled:
Scenario 1 – Operation of deductible;
Scenario 2 – Making a claim for building less than $1 million;
Scenario 3 – Consequences of a large scale loss; and
Scenario 4 – Clarifying instructions
In her Second Affidavit, Ms Willcocks addresses and puts in issue her state of mind, in terms of her understanding of the cover which ANU had actually effected or asked to be effected for the 2003 year, as well as what she would have done had she been aware of certain matters. In the course of addressing these matters, Ms Willcocks suggests that she would have communicated with Mr Rankin, who was the AON employee with whom she habitually dealt at that time, in respect of some of the matters raised by the hypotheses put to her.
Mr Smith’s Report
In his report, Mr Smith gives an account of his qualifications. He has had extensive experience in the insurance industry, including as an underwriter and employee of an insurance broker.
Mr Smith was instructed to provide an expert opinion in respect of a number of specific questions which were directed to the ultimate question of whether or not AON met the contractual standard required of it as alleged by ANU in respect of its retainer for the 2003 year and, in addition, whether it met a reasonable standard in respect of its conduct referable to that year.
It is not necessary to discuss Mr Smith’s Report in detail. It is fair to say that, in his report, Mr Smith expresses opinions which appear to travel well beyond the case pleaded by ANU. In a number of places in his report, Mr Smith says that AON failed to meet either the contractual standard which it was obliged to meet or a reasonable standard in all the circumstances because it “failed to advise” ANU of various matters. Other opinions expressed by Mr Smith appear to have some relevance to ANU’s case. AON accepts that this is so.
We do not propose to consider afresh the objections taken to Mr Smith’s Report and to rule upon those objections. For reasons which we shall explain, such an approach would not be sound in principle and, in any event, would be inappropriate in the present case.
ALLEGED PREJUDICE TO AON
The solicitor for AON swore an affidavit on 12 February 2010 in support of AON’s application to this Court. At par 49 of that affidavit, the deponent said:
49.The result of the Court’s ruling on 8 February 2010 is that Aon’s preparation for hearing will have to commence afresh. Aon will be obliged to undertake the following steps in order to prepare its case for hearing:
(a)consider and critically analyse all of the evidence served by the ANU and any new issues arising from the service of evidence in December 2009;
(b)reconsider the discovery required of the ANU having regard to the evidence served by the ANU in December 2009; form views as to any omissions in the discovery that has been given to date; correspond with the ANU’s solicitors regarding any further discovery that is required; inspect and critically analyse any further documents produced by way of discovery;
(c)reconsider subpoenas that may be required to be issued; attend to the preparation, filing and service of any further subpoenas; inspect and critically analyse any further documents produced under subpoena;
(d)reconsider the evidence required to be prepared in response to the evidence served by the ANU;
(e)marshall any evidence suggested to me in consequence of my reflection upon the matters in (a) – (d) above;
(f)interview new witnesses;
(g)prepare and serve any evidence which is required to be prepared in response to the evidence served by the ANU;
(h)re-brief senior and junior counsel and confer as necessary or appropriate in respect of the new evidence;
(i)take instructions on all of the above and bring such applications as I am instructed.
At par 51 of that affidavit AON’s solicitor said:
51.Aon respectfully submits that it should be given leave to appeal for (inter alia) the following reasons:
(a)The appeal raises an important question of law concerning the principles applicable to the exercise of the discretion to allow the late service of evidence.
(b)The appeal raises an important question of law concerning the case management discretion generally, particularly in light of the decision of the High Court of Australia in Aon Risk Services Australia Ltd v. Australian National University.
(c)The appeal raises an important question of law concerning the circumstances in which the procedure contained in s.192A of the Evidence Act is available, or should be used.
(d)As I have recorded at paragraph 49 above, the result of the Court’s ruling on 8 February 2010 is that Aon is required to commence its preparation for hearing afresh. Consequently, unless the decision of the trial judge is corrected, Aon will suffer real prejudice, in terms of costs and delay.
In an affidavit sworn by the same solicitor on 29 January 2010 and read in support of the arguments made by AON to Gray J on 8 February 2010, AON’s solicitor said that the additional preparation which the new evidence filed by ANU would cause AON to undertake would be:
… a lengthy and time-consuming process, resulting in substantial costs and a delay of at least 8 months or longer before a hearing occurs …
During the hearing of AON’s application before this Court, at the request of the Court, Senior Counsel for AON obtained further instructions in relation to the prejudice which AON asserts it will suffer if its present application is not successful and the decision made by Gray J on 8 February 2010 is not reversed. Senior Counsel informed the Court that his instructions in respect of prejudice were as follows:
(a) In respect of the issue as to what ANU would have done had it been advised about deductibles:
(i) AON will be obliged to investigate ANU’s insurance objectives and needs and other financial decisions which ANU made both before and during the relevant period;
(ii) AON will need to investigate ANU’s intentions concerning the Mt Stromlo assets in the years leading up to the fire which occurred on 18 January 2003;
(iii) AON will be required to investigate previous occasions when ANU might have been advised concerning the operation of deductibles; and
(iv) AON will need to investigate ANU’s experience with catastrophic losses and its assessment of the likelihood of such losses occurring;
(b) AON will need to investigate the entire relationship between AON and ANU in the period from 1999 to the end of 2002. In order to do that, AON will need to identify those persons involved in that relationship, including those employed in the Valuation Division of AON. It is believed that there are three or four people involved (including Mr Rankin);
(c) AON will need to come to a view as to the relevance of Mr Smith’s evidence. It will need to decide whether it should embark upon a detailed response to that evidence or simply rely upon the relevance objections which it has already taken.
Senior Counsel informed the Court that, apart from drafting subpoenas and notices to produce, preparing freedom of information applications and considering what further discovery might be required from ANU, no steps had been taken as at the date of hearing of the present application to progress any of the matters which we have summarised at [52] above. Apparently, AON had decided that, at least up until the date when the present application was heard by this Court, it would await the decision of this Court before undertaking any of the tasks described at [52] above.
Neither the solicitor for AON in her affidavit nor Senior Counsel in his submissions suggested that, as at the date when the present application was heard by this Court, the preparation described by her in her affidavit and conveyed to us by Senior Counsel could not be comfortably completed well before the end of January 2011. Furthermore, it is quite clear that, at all times since 8 February 2010, AON has been well aware that the final hearing of the proceeding before Gray J was tentatively fixed to commence on 31 January 2011 and that, as matters stood, the material to which it had objected before Gray J might well be admitted into evidence at the final hearing. Neither the Court nor ANU suggested to AON that it should refrain from taking the steps to which both its solicitor and Senior Counsel have referred. The Court, in particular, did not absolve AON from taking those steps pending the determination of the present application. AON’s decision to do nothing was a decision taken by it, on its own and for its own reasons.
CONSIDERATION AND DECISION
Issue 1 —Was the Decision of Gray J an “Interlocutory Order”?
Section 37E of the Supreme Court Act provides:
37E Appellate jurisdiction
(1)When exercising its appellate jurisdiction under this part, the court is to be known as the Court of Appeal.
(2)The following matters may be brought before, and heard by, the Court of Appeal:
(a)appeals in relation to the following orders:
(i)orders of the master, except interlocutory orders (see section 9 (Exercise of jurisdiction by master));
(ii)other orders of the court (except orders of the registrar, the Full Court exercising appellate jurisdiction or the Court of Appeal itself);
(b)appeals under section 37S (Reference appeal in relation to proceeding);
(c)cases stated or questions reserved by the court about any matter in relation to which an appeal may be brought to the Court of Appeal.
(3)However, an appeal may not be brought against an order made by the court sitting as the Court of Disputed Elections under the Electoral Act 1992, section 252.
(4)Also, an appeal may be brought against an interlocutory order of the court constituted by a single judge only with leave of the Court of Appeal.
(5)In this section:
registrar includes a deputy registrar.
If the order sought to be challenged on appeal is “an interlocutory order” of a single judge, there is no appeal as of right and an appeal from an order of that type can be brought only with the leave of the Court of Appeal.
Section 37E is silent in respect of decisions or rulings which are not properly characterised as either final or interlocutory orders. There is no definition of “interlocutory order” in the Supreme Court Act.
In R v Steffan (1993) 30 NSWLR 633, the New South Wales Court of Criminal Appeal held that a ruling on evidence made in advance of or in the course of a trial in either the Supreme Court of New South Wales or the District Court of New South Wales was not an interlocutory judgment or order within the meaning of s 5F of the Criminal Appeal Act 1912 (NSW) (the Criminal Appeal Act).
Section 5F of the Criminal Appeal Act is in the following terms:
5F Appeal against interlocutory judgment or order
(1) This section applies to:
(a)proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and
(b)proceedings under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986, and
(c)proceedings in Class 5 of the Land and Environment Court’s jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979).
(2)The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies.
(3)Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings:
(a)if the Court of Criminal Appeal gives leave to appeal, or
(b)if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal.
(3A)The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution’s case.
(4)An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates.
(5) The Court of Criminal Appeal:
(a)may affirm or vacate the judgment, order, decision or ruling appealed against, and
(b)if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against.
(6)If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related.
(7)A person may not appeal to the Court of Criminal Appeal under this section against an interlocutory judgment or order if the person has instituted an appeal against the interlocutory judgment or order to the Supreme Court under Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001.
In Steffan, after his trial was listed for hearing in the District Court but before that trial had commenced, the applicant applied by way of Notice of Motion for an order that certain tape recordings which had been secretly made were inadmissible in evidence against him at the trial. A judge of the District Court ruled that the recordings were prima facie admissible, subject to any other discretionary matters which were yet to be argued.
The applicant sought leave to appeal to the Court of Criminal Appeal in respect of that ruling pursuant to s5F(3) of the Criminal Appeal Act.
After noting that the phrase “interlocutory judgment or order” is not defined in the Criminal Appeal Act, at 635–638 the Court discussed a number of authorities in which the meaning of the phrase had been considered. The Court then concluded that the ruling on evidence which was challenged in the case before it had been validly made under the relevant rule of Court.
At 638G–640B, the Court then said:
It was submitted by the applicant that this procedure converted the decision of the judge that the evidence was admissible into an interlocutory judgment or order. The order made upon the motion filed pursuant to Pt 53, r 10, however, is not that the evidence is admissible. It is no more than that an inquiry by way of a voir dire be had by the trial judge: R v Bailey (1988) 36 A Crim R 30 at 31. Rule 12 does not expressly require the ruling made on the evidence to be recorded on the indictment. (In fact, no record of the judge’s ruling is entered on the indictment in the present case.) It was unnecessary in R v Bailey to decide whether it followed that the ruling itself became a judgment or order, as the applicant had not pleaded and the proceedings had been fundamentally irregular. Gleeson CJ did, however, say (at 32) that it was a “large question” as to whether the ruling on evidence which had been made in that case constituted an interlocutory judgment or order within the meaning of s 5F.
That question was raised squarely in this present case for determination. We can see no distinction between a ruling on evidence made in advance of the trial and one made in the course of the trial. It still cannot be entered in the records of the court as a judgment; nor does it command that anything be done (or not done) in the sense of an order of the court. It remains as no more than a ruling, one which can be tested on appeal to this Court after a conviction. The purpose of Pt 53, r 10–r 11, is clearly enough to have everything decided in advance of the trial which, by reason of its length or difficulty, would otherwise delay the course of the trial itself and cause inconvenience to the jury. But rulings on evidence may always be altered —although the necessary consequence of such an alteration may sometimes be the discharge of the jury. They may be altered because the circumstances in which the ruling was first made have altered, or simply because the judge has had a change of mind.
It was nevertheless submitted by the applicant that the procedure provided by Pt 53 made a ruling on evidence in advance of the trial binding during the course of the trial itself. We do not see why. The applicant's submission may be tested in this way. Assume that a decision is given by the High Court in some other case between the ruling in advance of the trial and the trial itself which renders that ruling incorrect. If that ruling were binding as the applicant submits, the only way in which it could be altered would be by way of appeal to this Court after conviction, or (if it were an interlocutory judgment or order) by appeal to this Court by leave before the trial. Such a submission cannot be correct. There is nothing in the District Court Act or Rules which supports it. The ruling here can still be altered, and in no sense can it validly be described (as the applicant has sought to describe it) as a final determination of the issue.
In our opinion, the decisions of this Court remain applicable, and cannot be distinguished upon the basis put forward by the applicant. We are, with respect, unable to accept the obiter dicta expressed by the Court of Appeal in Chow v Director of Public Prosecutions as correct. Even the Supreme Court Act makes a clear distinction for the purposes of appeal between “judgments and orders” (s 101) and a “decision” on any question or issue ordered to be decided separately (s 103): cf National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1989) 17 NSWLR 223.
Accordingly, in our opinion, a ruling on evidence made in advance of or in the course of the trial, in either the Supreme Court or the District Court, is not an interlocutory judgment or order within the meaning of s 5F of the Criminal Appeal Act. Even if we were wrong in that conclusion, the fact that the ruling can always be altered means that the circumstances would have to be unusual for leave to appeal to be granted prior to conviction. No such circumstances were shown to exist in this case. It was those reasons which led us to decide that leave to appeal against the ruling on evidence should be refused.
In similar vein, in the civil context, are the decisions Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd [1996] NSWCA 14 at [5] and Rich v Australian Securities and Investments Commission (2005) 54 ACSR 365 at [19]–[25] (pp 368–369). In those cases, the New South Wales Court of Appeal considered the meaning of the phrase “interlocutory judgment or order” as it appears in s 101 of the Supreme Court Act 1970 (NSW). The Court held that a ruling on evidence given in the course of a trial was not a judgment or order which might be the subject of interlocutory appeal.
In R v Bozatsis; R v Spanakakis (1997) 97 A Crim R 296 at 302–304, Gleeson CJ observed that a ruling on evidence may (our emphasis) constitute an interlocutory judgment or order and that the critical question was “the character and effect of the decision”. If all that has happened is that the judge has ruled that some particular piece of evidence was admissible or inadmissible, such a ruling would not be an interlocutory order. An example of a ruling which did have the status of an interlocutory order from which an appeal, by leave, may be brought is Australian Securities and Investments Commission v Rich (2005) 218 ALR 764; (2005) 54 ACSR 326. In that case, the trial judge had ruled that an expert accountant’s report was wholly inadmissible. In the Court of Appeal, at [3] (218 ALR at 765; 54 ACSR at p 327), Spigelman CJ said:
3.As will appear, the issues raised are of considerable significance for the proceedings and involve questions of law that this court should determine. Leave to appeal should be granted to ASIC (the appellant).
In WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275, the New South Wales Court of Criminal Appeal again considered this issue in respect of a decision of a District Court judge, made at the commencement of the trial, to exclude a particular defence raised by an accused in a criminal trial. The consequence of that decision was, of course, that evidence directed to establishing that defence would be inadmissible. The decision in question in WO was not a ruling on evidence although it had consequences for the evidence that might be sought to be led at the trial.
After referring to Ampolex, Rich and Steffan as well as a number of other authorities, Basten JA (with whom Fullerton and McCallum JJ agreed) said at [28]–[30]:
28Such broad statements must be viewed with caution, as the term “interlocutory” envisages a judgment or order which is less than the final determination of the proceedings, disposing of the rights of the parties. In civil jurisdiction, it has been recognised that the test of whether a judgment or order is interlocutory or final may depend either upon the legal effect or the practical effect of the order. Although the former approach is that adopted in construing s 101 of the Supreme Court Act, it does not follow that that approach is necessarily the sole appropriate approach in respect of s 5F of the Criminal Appeal Act. Both approaches have been treated as relevant in the latter context where, as explained by Gleeson CJ in Bozatsis, it is “the character of the question, and the effect of the decision” that distinguishes a judgment or order from an incidental ruling made in the course of proceedings: 97 A Crim R at 303. Thus, an order staying proceedings may be appellable under s 5F, even though the basis of the order was, in effect, a ruling that evidence was or was not admissible. The reason for the difference in approach flows from the fact that a ruling on evidence, standing alone, lacks finality; it may be varied in the course of the trial. However, once an order staying proceedings is made, the relevant element of finality is established. In the latter circumstance, the order may be challenged and, consequentially, any decision or ruling on which it was based.
29The unavailability of an appeal under s 5F against rulings on the admissibility of evidence has now been qualified by the inclusion of subs (3A), which permits a representative of the State to appeal against any such decision or ruling in the limited circumstances there identified. The inclusion of that additional power also explains the reference in subs (5), dealing with the powers of the court on appeal, not only to the judgment or order, but also to the “decision or ruling”.
30Although in the present case the judgment given by the trial judge will no doubt have consequences in respect of the admissibility of evidence at a later stage in the trial, assuming it is not varied, it was not in terms a ruling on the admissibility of specific evidence. Rather, it should be characterised as a preliminary determination of certain questions of law which were anticipated as likely to arise in the course of the proceedings. In that respect, this case bears similarities to R v Adamson [2005] NSWCCA 7 and R v Piper [2005] NSWCCA 134.
In R v Adamson [2005] NSWCCA 7 and also in R v Piper [2005] NSWCCA 134, observations were made to the effect that rulings on the admissibility of evidence (whether made before or during a trial) were not within s 5F(3) of the Criminal Appeal Act because they lack “the requisite element of finality in terms of resolving an issue in the proceedings in a binding manner” (per Spigelman CJ in Adamson at [7]–[8]). In both cases, the appeals were dismissed as incompetent.
In WO at [34]–[44], Basten JA then said:
34In determining the scope of s 5F, for present purposes, two matters of practice and procedure, which are distinct and separate in their purposes, need to be considered. The first is that a final judgment or order may be challenged on any basis arising in the course of the proceedings which materially affected the final determination of the proceedings. The wrongful admission of evidence, the failure of the judge to order separate trials and numerous other decisions and rulings which may be made in the course of a trial will all be available, if erroneous, as a basis on which to challenge the final order. So much is recognised by s 5F(6).
35How, as a matter of practice, this principle should operate in particular circumstances gives rise to a separate question. On the one hand, the availability of a challenge to the final order may be said to militate against the disruption of the orderly running of the criminal process. On the other hand, an error at an early stage of a trial may benefit from immediate correction, so as to avoid the waste of time and resources required by the need to complete the trial, even if it were to result in an acquittal.
36These conflicting considerations have led to the second matter of practice and procedure. In a number of respects, the legislature has now provided for mechanisms by which legal issues can be determined prior to the commencement of a trial, no doubt primarily to allow for the smooth running of a trial and the minimum disruption of the hearing before a jury. In one sense, the purpose underlying the provision of pre-trial hearings is in step with the principle that a trial should not be disrupted by attempts to run interlocutory appeals. What is less clear is whether the availability of pre-trial mechanisms has had the effect of expanding the scope of s 5F, thus allowing for the final resolution of questions not to be left to a jury, although perhaps at the expense of some delay in resolving such matters prior to the empanelling of the jury. The answer to this question must be resolved by having regard to the mechanisms available for pre-trial determination of issues.
37The appellant drew attention to three specific mechanisms which, although not expressly invoked in the present proceedings, might be relied upon to justify the course taken and which may give a particular character to the determinations of the trial judge. The first was s 192A of the Evidence Act 1995 (NSW) which reads:
“192A Advance rulings and findings
Where a question arises in any proceedings, being a question about:
(a)the admissibility or use of evidence proposed to be adduced, or
(b)the operation of a provision of this Act or another law in relation to evidence proposed to be adduced, or
(c) the giving of leave, permission or direction under section 192,
the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.”
38A provision in such terms was introduced to remedy a procedural defect identified in TKWJ v R [2002] HCA 46; 212 CLR 124.
39In its terms, s 192A does not speak of a judgment or order of the court, but rather a ruling or finding. Furthermore, there is nothing in the section which provides any additional element of finality in respect of such a ruling or finding, beyond that which would attach to a ruling made in the course of the trial absent that provision. Indeed, it is not clear precisely how s 192A was intended to operate. TKWJ concerned the scope of cross-examination of a prosecution witness and the likely consequences with respect to character evidence called for the accused. Use of the phrase “advance ruling” in TKWJ was apparently intended to cover requests for rulings well in advance of any attempt to adduce evidence, and not at the point of presentation of the evidence. In any event, this fresh mechanism for determining such matters gives rise to no new factor, such as might suggest an extended scope for s 5F with respect to evidential rulings.
40Secondly, counsel for the appellant referred to the District Court Rules 1973 (NSW), Pt 53, rr 10 and 11. Part 53 has application in relation to criminal proceedings. Rule 11 relevantly provides:
“Evidence
11(1)The Court may order that an enquiry by way of a voir dire into the admissibility of any evidence or as to the capacity of a witness to give evidence be had, before the trial Judge, at any stage of any proceedings whether before or after the jury is empanelled.”
41Rule 10, which covers a number of kinds of applications, including applications for an adjournment, separate trials and for an order r 11(1), states:
“10 Pre-trial applications
(1)Any application to the Court in relation to any proceedings which may practicably be made before the day appointed for the hearing of the proceedings shall be made before that day.”
42 This provision more clearly provides the opportunity for “advance rulings” in respect of evidence and other matters. These provisions have been varied since TKWJ, but not in a manner which affects the likely operation of s 5F in respect of orders made pursuant to applications under these rules. The rules were in a largely similar form in 1993 and were considered in Steffan at 638–639. The requirement under r 10 that the court “may make orders with regard to the application” was not treated in Steffan as rendering the outcome of the application in relation to admissibility an interlocutory order for the purposes of s 5F. Nor was it thought that r 12, which required that any “judgment, order, sentence, direction or recommendation given or made by a Judge in any proceedings” be entered, required the entry of an “order” under r 11. The argument that each ruling on evidence made by a trial judge pursuant to such a pre-trial application was an order which should be entered on the indictment or other court record, was expressly rejected.
43Lethlean (above at [26]) held that a ruling on a point of law raised during the hearing of a criminal trial, that the accused had a case to answer, did not give rise to an interlocutory judgment or order for the purposes of s 5F(3). In his agreement with the judgment of Sheller JA, Hulme J remarked that the case of Rees v Kratzmann [1965] HCA 49; 114 CLR 63 indicated that “whether, in a particular case, there is an order may often be a matter of form”: at 207. The reason for his Honour’s comment was that in Rees, the High Court had granted special leave to appeal in respect of a ruling made by a judge in the course of a liquidator’s examination of a company director that a particular subject matter lay beyond the scope of the inquiry. As explained by Kitto J, 114 CLR at 67:
“In order to give the liquidators an opportunity to test the ruling, his Honour then made a formal order directing that counsel for the liquidators be not allowed to put the question, and that Kratzmann be not required to answer it, “on the ground that such question does not arise from the matters which are set out in the said report”. His Honour gave the liquidators leave to appeal to the Full Court, and an appeal pursuant to that leave was taken.”
44 An application was made in Rees to rescind the grant of special leave, as recorded at p 64. Reliance was placed on Commonwealth v Mullane (see above at [26]). However, the recision application was dismissed without the court giving reasons: at 65. Whether s 5F would be engaged in circumstances where a trial judge, having ruled on a point of law, adopted the course of making a formal order, need not be determined, as that step was not taken in the present case.
His Honour then moved on to discuss the third mechanism for pre-trial determination of issues (s 130A of the Criminal Procedure Act 1986 (NSW)).
At [58]–[60], his Honour expressed his conclusions on the question of whether the appeal was competent as follows:
58There is no doubt that her Honour reached a view about one or two questions of law, in a manner which could, in a practical sense, have ramifications for other steps taken in the trial. For example, her Honour’s views as to the legal principles discussed in the judgment would no doubt affect the manner in which the prosecutor opened the case before the jury, the evidence called by both the prosecution and the defence and the instructions given to the jury. However, in accordance with the approach adopted by this court in both Adamson and Piper, these matters cannot be said to constitute “orders”, nor was there any “judgment” in the sense of a formal determination of issues in dispute between the parties.
59Despite the desirability of obtaining an advance ruling on matters of law, so that the trial may proceed before the jury with a minimum of disruption, the availability of a right of appeal in respect of such rulings is not self-evidently appropriate. The fact that such rulings may affect the outcome does not provide a sufficient basis for permitting an interlocutory appeal. If an appeal were available in such circumstances, many rulings on evidence and disputed directions to the jury would become the potential subject of an interlocutory appeal. That the phrase “interlocutory judgment or order” in s 5F does not extend so far is well-established. Many, but not all of the pre-trial application orders envisaged by Pt 53, r 10 will result in interlocutory orders. Similarly, an order for production of documents by a stranger to proceedings and a non-publication order, may become the subject of an interlocutory appeal under s 5F: see Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667; Nagi v Director of Public Prosecutions (NSW) (No 2) [2009] NSWCCA 198. However, the expression of an opinion on an issue of law does not fall into that category.
60 It follows that the appeal should be dismissed as incompetent. In the event that the Court was of that view, neither party suggested that the fact of the certificate given by the trial judge required any different outcome: R v Lavender [2002] NSWCCA 511 at [1] (Giles JA, James and Hidden JJ agreeing).
We respectfully agree with his Honour’s articulation of the relevant principles.
Notwithstanding that the decision which is under challenge in the present application is not a ruling on evidence in the sense that his Honour did not rule that the contentious evidence was admissible nor did he rule that the contentious evidence was inadmissible, the subject matter of his Honour’s decision is evidence and the effect of his Honour’s decision was not to exclude the contentious evidence in advance of the trial by ruling it inadmissible on 8 February 2010, almost a year before the trial was tentatively fixed to commence. His Honour’s decision stops short of ruling on the admissibility of the evidence. In that respect, it falls well short of having the necessary quality of finality to be an interlocutory order within s 37E(4) of the Supreme Court Act. Far from being final and binding on some matter or question, his Honour’s decision has left the parties with all of their options open on the question of the admissibility of the contentious evidence. The effect of his Honour’s decision is to leave the question of the admissibility of the contentious evidence to be ruled upon at the trial. The consequences of that decision are that:
(a) ANU will have to decide whether to tender some or all of the contentious evidence and, if only some, which parts;
(b) AON will have to approach the trial upon the basis that all of the contentious evidence will be tendered by ANU; and
(c) AON will have to decide what objections to the contentious evidence it will take at the trial and what steps it will take to meet that evidence in the event that it is admitted.
Section 192A of the Evidence Act 1995 (Cth) (the Evidence Act) does not alter this position. The Evidence Act applies to proceedings in this Court and the Court below (s 4 of the Evidence Act).
Section 192A of the Evidence Act provides:
192A Advance rulings and findings
Where a question arises in any proceedings, being a question about:
(a)the admissibility or use of evidence proposed to be adduced; or
(b)the operation of a provision of this Act or another law in relation to evidence proposed to be adduced; or
(c)the giving of leave, permission or direction under section 192;
the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.
In a judge-alone civil trial, the trial judge has the power to make rulings on evidence in advance of the commencement of the trial proper. Section 192A enshrines that power but also empowers the Court (including judges other than the trial judge) to make rulings on evidence in advance of the trial. The section does not, however, elevate every evidentiary ruling made in advance of the trial to the status of an “interlocutory order” within s 37E(4) of the Supreme Court Act.
For these reasons, any appeal that would follow the grant of leave to appeal in the present case would be incompetent and the present application for leave to appeal is also incompetent.
Senior Counsel for ANU baulked at putting a submission that the present application was incompetent. He did, however, draw our attention to Steffan, Ampolex and Rich but submitted that there was a distinction to be made between a ruling that evidence was admissible or inadmissible, on the one hand, and a decision not to make a ruling, on the other hand. Senior Counsel accepted, however, that if the primary judge had acceded to AON’s application and ruled that the contentious evidence was inadmissible, that decision would not have been an “interlocutory order” within s 37E(4) of the Supreme Court Act and could not have been the subject of an application for leave to appeal or an appeal in this Court.
We consider that the distinction sought to be made by Senior Counsel for ANU is a distinction without a difference. The question really is: Does the ruling made by the primary judge have the requisite degree of finality? We think that it does not.
We also consider that the question of the competence of the present application was raised sufficiently at the hearing for the parties to have had a fair opportunity to address it. In particular, AON was aware of the issue and did address it, notwithstanding that ANU did not submit that the application was incompetent. In the end this Court has to be satisfied that this application is within the jurisdiction of this Court and we are not so satisfied.
Issue 2—Discretion
We shall briefly deal with Issue 2 although, given our views in relation to Issue 1, Issue 2 does not arise.
The primary judge’s decision was a discretionary decision relating to a matter of practice and procedure. Appeal courts are generally reluctant to interfere with such decisions and do so only in exceptional circumstances.
His Honour was reluctant to bring forward the timing of his ruling on the contentious evidence and preferred to leave the making of such a ruling until that evidence is actually tendered at the trial. By proceeding in that way, his Honour will be in a position to make the necessary ruling having regard to the form of the pleadings at that time, the terms of ANU’s opening (and, possibly, the terms of AON’s opening) and the nature and content of evidence already admitted and/or foreshadowed.
His Honour did not think that the claimed prejudice or other arguments advanced by AON were sufficient to outweigh the advantages which he perceived in the course which he preferred.
AON submitted to this Court that the primary judge’s discretion miscarried. AON submitted that all of the contentious evidence was plainly irrelevant, had the capacity to cause significant delay and prejudice to AON if not rejected in advance of the trial and was, in any event, served late. It relied upon case management principles and s 192A of the Evidence Act.
AON closely analysed the Statement of Claim, the High Court decision in AON v ANU 239 CLR 175 and the contentious evidence, ultimately submitting that the contentious evidence was plainly and unarguably irrelevant.
The issues thrown up by the current pleadings are:
(a) Whether it was AON who arranged the 2002 ISR cover which ANU held (par 25 of the Statement of Claim; par 25 of the Defence);
(b) What were the terms of the expiring cover as at 31 December 2002 and where were those terms documented (par 25 of the Statement of Claim; par 25 of the Defence);
(c) What were the terms of the retainer in respect of ANU’s needs for the 2003 year and, in particular, was AON required to procure appropriate cover for all buildings and their contents listed on both the Schedule C list and the PNI list. AON denies the matters pleaded in par 26 of the Statement of Claim but does not articulate the basis for that denial (par 26 of the Statement of Claim; par 26 of the Defence);
(d) Whether the higher standard of care and other terms pleaded in par 27 of the Statement of Claim were imposed upon AON under its retainer by ANU (par 27 of the Statement of Claim; par 27 of the Defence);
(e) Whether AON owed to ANU the tortious duty of care pleaded in par 28 of the Statement of Claim (par 28 of the Statement of Claim; par 28 of the Defence);
(f) What were the terms of the settlements between ANU and the insurers and were those settlements reasonable. In particular, did ANU recover any moneys from the insurers for losses suffered to the buildings and their contents which were listed on the PNI list (pars 29A, 30, 30A, 30B and 30C of the Statement of Claim; pars 29A, 30, 30A, 30B and 30C of the Defence); and
(g) Whether the buildings and other items on the PNI list were insured at all for the 2003 year and, if not, whether that state of affairs was brought about by AON’s breach of its retainer and breach of the duty of care owed by it to ANU by failing to arrange the requested insurance and by failing to inform ANU that it had not arranged that insurance (par 31 of the Statement of Claim; par 31 of the Defence).
In the particulars to par 26 of the Statement of Claim, ANU identifies an agreement dated 28 June 1999 as the document said to constitute the requisite retainer. It also alleges in those particulars that the term of that agreement was extended to 2004.
The above brief summary of issues reveals that, at present, it is no part of ANU’s case that AON was obliged to ascertain and declare to the insurers the correct value of the property to be insured, and failed to do so, nor is it any part of ANU’s case that AON failed to advise it of the relevant provisions in the insurance contract or contracts concerning deductibles, as it was required to do. Notwithstanding these observations, which are necessarily made without a full appreciation of ANU’s case or the benefits of an opening of that case at a trial, it will be a matter for the trial judge to determine at the trial whether any particular case or cases are open to ANU on the pleadings (including AON’s Defence) and whether particular evidence is or is not admissible.
The undoubted power of the Court below and individual judges to entertain and make rulings on evidence in advance of a trial does not necessarily carry with it an entitlement in a disappointed applicant for such an advance ruling to appeal or seek leave to appeal to this Court. The availability of the power to make such a ruling is quite different from any entitlement to challenge the terms of such a ruling on appeal.
On 9 November 2009, on the same occasion that the primary judge gave leave to ANU to amend its Statement of Claim, his Honour also made directions for the filing of further affidavit evidence by ANU. He was asked to impose a condition on the leave to file further evidence—namely, that it be confined to the additional issues raised by the amended Statement of Claim. His Honour did not impose such a condition. His Honour did however indicate that he would entertain an application at some stage in the future by AON that evidence going outside that stricture should be rejected. On 14 December 2009, AON agitated this matter again but his Honour declined to deal with it. The additional evidence filed in December 2009 was, in fact, filed within the time frame limited by the directions made by his Honour on 9 November 2009. There is no appeal from the directions which his Honour made on that occasion. Therefore, it seems to us that, in the end, case management principles do not have much to do with the present application.
The real question agitated by AON is whether the contentious evidence is so obviously irrelevant to the case which is to be tried in early 2011 and will cause such significant prejudice to AON if allowed to stand that it should be rejected in advance of that trial.
As far as Ms Willcocks’ First Affidavit is concerned, AON submitted that all of the paragraphs to which objection was taken (with perhaps the exception of par 65 and par 85) deal with facts, matters and circumstances which have nothing to do with the case sought to be made by ANU. AON submitted that the critical question was: What were the terms of the retainer for the 2003 year. However, ANU’s case seems to be that the contractual relationship between ANU and AON commenced in 1999, that it developed over time and that it may not be wholly evidenced by the original 1999 written contract. Such a case would be open on its pleading. AON has chosen not to articulate the particular matters of disagreement which it has with the terms of the relevant retainer as alleged by ANU in the Statement of Claim and has left ANU to make a forensic decision as to what evidence it will lead directed to establishing that retainer. It is not beyond argument, in our view, that the historical account given by Ms Willcocks in her First Affidavit of her dealings with officers and employees of AON in the period from 1999 to the end of 2002 is relevant to the question of the terms of the pleaded retainer or to the issues about the retainer embedded in AON’s Defence. Furthermore, it is not immediately apparent to us that the account which she has given is plainly irrelevant to establishing and delimiting the requisite duty of care pleaded in par 28 of the Statement of Claim.
Paragraph 65 and par 85 of Ms Willcocks’ First Affidavit may well be in a different category. Indeed, it may well be that, at the trial, the trial judge will be persuaded to reject those paragraphs for the reasons that AON has advanced to us during argument. The question for this Court, however, is whether his Honour’s decision not to reject that material in advance of the trial was so obviously wrong as requiring correction by this Court. We do not think that his Honour’s decision is attended with error of that character. AON has not persuaded us that his Honour should have rejected par 65 and par 85 of Ms Willcocks’ First Affidavit in addition to the other paragraphs about which complaint is made. Paragraph 65 and par 85 are part of Ms Willcocks’ account of her dealings with AON. There may be good reason for the trial judge to limit the use which can be made of the evidence in those paragraphs but that was not an argument put to the primary judge nor was it a contention advanced in this Court.
Ms Willcocks’ Second Affidavit and much of Mr Smith’s Report may well be thought to be trespassing into the cases which the High Court did not permit ANU to run. It is, however, fair to say that at least some of Mr Smith’s Report appears to be relevant to the two separate standards of care relied upon by ANU in its pleading.
Again, we do not think that the exercise of his Honour’s discretion not to reject the whole of Mr Smith’s Report in advance of the trial was so flawed as to require correction by this Court.
We have carefully considered the question of prejudice to AON. We are firmly of the view that AON has failed to establish any prejudice which cannot be appropriately remedied by an order for costs. Since November 2009, AON has had ample opportunity to assess the further preparation required of it occasioned by the amendment to ANU’s Statement of Claim made in November 2009 and the additional evidence filed and served by ANU in early December 2009. Even on its own evidence, it could have completed that preparation by July or August 2010, well ahead of the January 2011 tentative hearing date. Further, the evidence tendered by AON both before us and before the primary judge directed to the question of prejudice is far too general to carry any weight. Whilst it may be accepted that AON may not wish to set out in an affidavit to be used in open court the details of its planned preparation, nonetheless we have found the affidavits sworn by the solicitor for AON to be unhelpful in explaining to the Court the prejudice likely to be suffered by AON should his Honour’s decision stand. The reality is that AON will need to assess the likelihood of some or all of the evidence to which it has taken objection being admitted into evidence at the trial and thus its need to meet that evidence. It finds itself in a position which, in truth, is no different from that in which a defendant habitually finds itself when assessing whether it is necessary to file evidence to meet a plaintiff’s case and, if so, what evidence should be gathered and presented in order to enable it to do so. Whilst it is true that the present proceeding has had an unfortunate history, the simple fact is that the amendment allowed by his Honour on 9 November 2009 was consented to by AON and the orders which his Honour made allowing ANU to file further evidence were not opposed by AON although it did seek to have conditions placed upon the indulgence which his Honour granted.
There are other reasons why this Court should not overturn the primary judge’s decision. These may be shortly stated as follows:
(a) Were this Court to overturn the primary judge’s decision and replace it with a ruling made by this Court that the contentious evidence is inadmissible at the trial, it seems to us that such a ruling would not bind the trial judge nor would it bind the parties. There may be many circumstances in which the admissibility of some or all of the contentious evidence would need to be reconsidered. Although, in the present case, a further amendment of the Statement of Claim is unlikely, nonetheless that remains a possibility. Further, when AON has presented its case, the evidence contained in Ms Willcocks’ First Affidavit, Ms Willcocks’ Second Affidavit and Mr Smith’s Report may take on a different complexion. That evidence may taken on a different complexion even before that evidence is presented once ANU has opened its case and begun to adduce evidence in support of it. It may well be that the trial judge would be free to ignore or to act inconsistently with any ruling made by this Court even if it cannot be established that circumstances have changed since this Court’s ruling was made.
(b) Notwithstanding the history of the matter, it seems to us that the prejudice to AON is purely financial. There is no suggestion that that prejudice cannot be compensated with an appropriate order for costs, including an order for indemnity costs if warranted.
(c) The trial judge will no doubt be alive to the justifiable concern on the part of AON that ANU may be seeking to run through the back door a case which the High Court has said that it cannot run. The trial judge will no doubt carefully scrutinise the evidence sought to be tendered by ANU against the case or cases available to it on a true and fair interpretation of its Statement of Claim. In the end, of course, it is to that pleading to which regard must be had, not to some previous iteration of the Statement of Claim. We have already observed that, as presently advised, we are of the view that, in the current version of the Statement of Claim, ANU does not plead a case that AON was required to ascertain and provide to the insurers appropriate declared values for the insured property nor does it plead a case that AON was obliged to advise ANU in respect of the provisions in the insurance contract or contracts concerning deductibles. Those cases were rejected by the High Court and, as we see matters at the moment, are not raised by the current Statement of Claim. However, these observations do not bind the trial judge and are plainly made without the benefit of a full explanation of the pleading or the cases which ANU will seek to make at trial. In the end, it will be a matter for the trial judge to interpret the pleadings in the form in which they stand for the purposes of determining whether any particular piece of evidence should be admitted or rejected.
(d) After the trial has concluded and the trial judge has delivered judgment, it will be open to either party to challenge in any appeal to this Court rulings on evidence which it considers to have been erroneous and to seek to have this Court reconsider those rulings as part of the appeal. The trial will not be delayed or disrupted if this course is adopted. Yet, the parties’ substantive rights will be preserved.
In our opinion, it was well within the primary judge’s undoubted discretion, whether looked at as being anchored in case management principles or as arising from the engagement of s 192A of the Evidence Act, for the primary judge to have ruled as he did. Even if that ruling were susceptible to review on appeal, we are of the view that his Honour’s ruling should not be overturned.
The application should be dismissed with costs.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 29 November 2010
Counsel for the Applicant: Mr AJ Meagher SC, Mr NJ Owens
Solicitor for the Applicant: Corrs Chambers Westgarth, Sydney, by their agent Clayton Utz, Canberra
Counsel for the Respondent: Mr FJ Purnell QC, Mr DJC Mossop
Solicitor for the Respondent: Sparke Helmore
Date of hearing: 23 July 2010
Date of judgment: 29 November 2010
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