Australian Education Union (SA Branch) v Grieve (No 3) No. Scciv-95-29

AUSTRALIAN EDUCATION UNION (SA BRANCH) v GRIEVE (No 3)
[2002] SASC 25
Full Court: Doyle CJ, Perry and Lander JJ

DOYLE CJ. I would dismiss the appeal and the cross-appeal. I agree with the reasons given by Perry J. There is nothing that I wish to add to those reasons.
PERRY J. The appellant appeals against the assessment of damages awarded in an action in this Court against the respondent.
As will be seen, this is the third occasion upon which the matter has been before the Full Court.
The proceedings were instituted by summons issued in January 1995. The appellant, which is the successor to the South Australian Institute of Teachers Inc, sued the respondent, an architect, for damages arising from a contract which the respondent had entered into with the appellant in connection with the removal of asbestos from the ceiling of the appellant’s premises at Greenhill Road, Parkside. The trial Judge dismissed the appellant’s claim.[1]
[1] See reasons for judgment dated 4 June 1998, Judgment No S6705.
An appeal to the Full Court came on for hearing in March 1999. The Full Court unanimously allowed the appeal. In doing so, it held, contrary to the view taken by the trial Judge, that the respondent was liable in damages to the appellant either in breach of contract or in negligence. The Court ordered that subject to the hearing and determination of issues arising under the Limitation of Actions Act 1936, the matter be referred back to the learned trial Judge for assessment of the damages payable by the respondent.[2]
[2] See reasons for judgment of Doyle CJ, Perry and Martin JJ dated 13 May 1999, Judgment No [1999] SASC 183.
Subsequently, the respondent applied to the Full Court to have it recall the orders which it had made allowing the appeal. The respondent based its application upon the submission that it had not been fairly heard on the issues upon which the Full Court decided the appeal.
By order made on 8 September 1999, the Full Court dismissed the respondent’s application.[3]
[3] See reasons for judgment of Doyle CJ, Perry and Martin JJ dated 8 September 1999, Judgment No [1999] SASC 369.
There was some delay before the matter was re-listed before the learned trial Judge for him to deal with the issues arising under the Limitation of Actions Act and to assess damages. Eventually the hearing resumed before him on 14 August 2000, and extended over two days. No further evidence was called.[4]
[4] An application by the plaintiff to call certain further evidence was rejected by the trial judge, partly because the plaintiff was unwilling to give an undertaking to call other witnesses if required for cross examination. Short reasons in support of that ruling were delivered on 5 July 2000.
By a judgment delivered on 17 November 2000, the learned trial Judge found in favour of the appellant on the Limitation of Actions Act issue. He ordered that the time within which the proceedings might be brought be extended to 10 January 1995, being the date upon which the proceedings were instituted.
He went on to assess damages in the amount of $50,000.[5]
[5] Judgment of Williams J dated 17 November 2000, Judgment No [2000] SASC 381.
By a separate judgment delivered on 7 December 2000, the learned trial Judge ordered that there be no order as to the costs of the proceedings save for a hearing which took place on one day, that is, 4 June 1999, as to which he ordered that the respondent pay to the appellant its costs.[6]
[6] See reasons for judgment of Williams J dated 7 December 2000, Judgment No [2000] SASC 430.
The appellant filed two notices of appeal. In the first notice, it claims that the assessment of damages was manifestly inadequate. In a supplementary notice, it complains that the learned trial Judge erred in failing to make an order in its favour for the whole of the costs of the action.
The respondent filed a notice of cross-appeal complaining that the learned trial Judge erred in granting an extension of time for the commencement of the proceedings. He further complained that the learned trial Judge should have held that on the material before him, the plaintiff had failed to make out a case for the award of any damages.
Insofar as the respondent complains in his cross-appeal as to the order extending time for the commencement of the proceedings, this was not pursued at the hearing of the appeal. It is necessary, therefore, to deal only with the issues of damages and costs.
The appeal and cross-appeal came on for hearing before the Court on Monday 5 November 2001.
Detailed findings as to the facts of the matter are set out in the reasons previously published by the trial judge and this Court. I will refer to the facts of the matter in these reasons only to the extent necessary to make them intelligible.
Background
The building the subject of the action was erected by the appellant in 1974. It includes a hall and associated amenities, which are housed in a single storeyed part of the building called Raggatt House.
On about 6 April 1984, the building caretaker discovered what was found to be asbestos in the ceiling cavity above the hall. It turned out that during the course of construction, the underside of the iron roof had been sprayed with asbestos as an insulating material.
The respondent was engaged by the appellant to draw up a specification for the removal of the asbestos and to put the work out to tender.
In the result, a successful tender was made by Consolidated Contractors Pty Ltd (in provisional liquidation) (“Consolidated Contractors”). The method chosen was to leave the roof on. This meant that the workers were obliged to work in the confined roof cavity. Consolidated Contractors embarked on the necessary work, which involved scraping the asbestos from the iron cladding of the roof and other exposed surfaces to which it had become attached, and then spraying the surfaces which had been cleaned off, with PVA paint.
The task proved to be difficult, partly because of the cramped working conditions, and partly due to the fact that some of the asbestos had penetrated small cracks and crevices where it was not feasible to remove it. Even the asbestos which was accessible was more difficult to remove than had been anticipated, in view of the nature of the adhesive which had been mixed with the asbestos when it had been sprayed on.
Consolidated Contractors made a claim for an increased payment over and above the contract price in view of the unanticipated difficulties in carrying out the work, with particular reference to removal of the adhesive. Their claim was referred to an arbitrator who awarded an increase in the contract price.
On 19 February 1985, the respondent issued a certificate of practical completion.
In 1986, the respondent found more asbestos beneath the floor of the building. Rather than undertaking a further process of removal, it dealt with the problem by sealing a trap in the floor, accompanied by a notice warning of the presence of the asbestos.
In September 1993, the appellant engaged contractors to undertake a program of refurbishment of the building. Essentially this involved the installation of demountable partitions in the auditorium to permit the area to be divided into smaller rooms for use as conference rooms.
That work commenced in the same month, that is, in September 1993. It was interrupted in January 1994 when the appellant became aware of the continued existence of loose asbestos material in the ceiling cavity above the hall. Apart from the presence of loose asbestos, it was also apparent that a number of surfaces had been missed in the process of spraying with PVA paint.
On 10 January 1995, the proceedings were instituted by the appellant against the respondent, claiming damages on the footing that he had negligently or in breach of his contract with the appellant failed to ensure that the asbestos had been adequately removed and the premises rendered safe.
On the first appeal, the Full Court held that the -
“... obligation of Consolidated Contractors pursuant to its contract with the appellant was to remove all asbestos which it was reasonably practicable to remove, which included all of the visible asbestos, except some of the asbestos which it was simply not practical to scrape away from the grooves or flutes of the roof.”[7]
[7] Judgment No S6705, para 22.
The Full Court further held that on a proper construction of the contract entered into between him and the appellant, the “overriding contractual responsibility” cast upon him was “to ensure that the work which was carried out left the building in a safe condition”.[8] In order to discharge that responsibility, the Full Court further held that there were:
“47...... at least two stages at which the respondent owed a duty to make a carefully inspection of the site. They were, following the removal of the asbestos and before the application of PVA; and the second after the builder had finished the removal work and before the issue of the certificate of practical completion.”
[8] Ibid para 23.
The respondent did not make an inspection on either of those occasions. If he had done so, it would have been apparent to him that there were serious inadequacies in the extent of the removal of the asbestos and the extent of the coverage of the PVA. If those inadequacies had been identified, the respondent would have been under a duty to see to it that Consolidated Contractors removed such of the residual asbestos as was reasonably accessible and re-spray with PVA to ensure that all surfaces were sealed by it.
The conclusion of the Full Court as to the liability of the respondent is summarised in the following passage from my reasons for judgment, with which Doyle CJ and Martin J concurred:
“In my opinion, the learned trial Judge should have been led to the conclusion that the respondent was liable, either in breach of contract or in negligence, in failing adequately to inspect the work, more particularly at the two critical stages to which I have referred; in failing to ensure that the extent of the removal of the asbestos was as complete as could practicably be achieved; and that following removal of as much of the asbestos as it was reasonably practicable to remove, the affected areas were adequately and completely sealed off with PVA paint.”[9]
[9] Ibid para 83.
In the result, the Full Court ordered that the matter be referred back to the trial judge to assess the damages payable by the respondent, subject to resolution of the Limitation of Actions Act issue in favour of the appellant.
The Trial Judge’s Assessment of Damages
It was common ground on the hearing of the appeal that the learned trial judge adopted the correct legal approach to his task.
After referring to certain statements of principle which appear in the judgments in East Ham Corporation v Bernard Sunley & Sons Ltd[10] and in Bellgrove v Eldridge,[11] he observed that neither party had suggested that assessing damages in contract or in tort would produce a different outcome.
[10] [1966] AC 406.
[11] (1953-54) 90 CLR 613.
He proceeded:
“13.The normal measure of damages in such a case is the reasonable cost of reinstatement at the time that the defects were discovered. However, if the cost of remedying the defect is disproportionate to the end to be attained, the damages fall to be measured by the value of the building in proper condition less its value as it stands. Neither side has suggested that damages should be assessed in this lastmentioned way. In Bellgrove v Eldridge, the High Court referred also to the recovery of “appropriate consequential damages” as part of the building owner’s loss. Consequential losses may include loss of use of the building whilst the defects are being made good. In the present case, there is no such claim, but there is a claim for delay costs associated with another project.”
The other project there referred to was the development project which the appellant had embarked upon in September 1993.
A very real question arose in the context of the assessment of damages as to the reasonableness of the work in fact performed early in 1994 to deal with the residual presence of asbestos.
At the time when the respondent was engaged by the appellant, there was discussion as to whether or not the best method of tackling the problem as it then existed included the removal of the roof. In the events which happened, this option was rejected by the appellant in favour of the process which was in fact undertaken by Consolidated Contractors. This was to work within the roof cavity without disturbing either the roof or the ceiling, and to scrape off the asbestos from the underside of the iron cladding of the roof and other exposed surfaces to which it might be attached, to the extent that it was reasonably practicable to reach them, and then to spray the surfaces which had been cleaned off with PVA paint. As I have already explained, this task proved more difficult than had been expected, and eventually an increase on the contract price was awarded by an arbitrator to compensate for the extra work involved in removing the adhesive which had been mixed with the asbestos, a process which had not been anticipated when Consolidated Contractors had quoted on the job.
The contract price agreed with Consolidated Contractors was $80,903. The variation which resulted from the arbitration, including interest, amounted to an additional $43,377, giving an overall total of $124,280.
When the fact that residual asbestos was still present was discovered in January 1994, the plaintiff engaged Mr Rahlf of B.J. Insulation to quote on the remedial work. He offered a quotation on two bases: one leaving the roof in place, and the other involving removal and replacement of the roof.
The quotation on the first basis was $184,120 and on the second $221,740.
Although removal of the roof would enable virtually complete removal of all residual asbestos, this was an option which, as I have said, was considered and rejected at the time when the original work was performed in 1985.
As for the figure which did not include removal of the roof, it is apparent from the quotation which was in evidence before the learned trial judge that the scope of the work involved was much more extensive than that which had been originally undertaken (although not satisfactorily performed) by Consolidated Contractors. In particular, as to the first option, Mr Rahlf was suggesting that all ceilings be removed, which would give greater access to roof decking, beams, cavity walls, et cetera.
In my opinion, despite the argument advanced by the appellant to the contrary, the learned judge was correct in rejecting the appellant’s contention that damages fell to be assessed on the footing that the roof should be removed. This was never part of the contractual responsibility of Consolidated Contractors. At no stage was it ever part of the appellant’s case that the respondent was negligent in failing to recommend that the roof be removed.
Insofar as the main element in the assessment of damages involved quantification of the cost of remedying the shortfall in Consolidated Contractors’ performance of the contract, it could not involve any allowance for work to be done in excess of what they had originally contracted for.
Even the first figure, $184,120 was of no great assistance to the learned judge, as it involved removal of the ceilings, which was never part of Consolidated Contractors task. Not only would the removal of the ceilings oblige removal of areas of asbestos which it could not have been reasonably practicable to remove in 1985, but B.J. Insulation’s quote on the basis of removal of asbestos and adhesive went beyond the scope of the work as defined in the contract with Consolidated Contractors. It would have involved payment of an extra amount beyond the initial contract price. It follows that it could not be allowed as part of the reasonable costs of remedying the consequences of the failure of the respondent to ensure that Consolidated Contractors carried out the work to the extent originally contracted for.
In the events which happened, the appellant accepted the larger of the two quotations put forward by B.J. Insulation, which involved removal and replacement of the roof. This led to the conclusion and observations, which in my view were correctly expressed by the learned trial judge, in the following passage from his reasons:
“14.In the ordinary course, if the plaintiff had confined itself only to remedying the defect in a reasonable manner in 1994, there would now have been little scope for argument. It did not do so. Instead it entered upon a project of considerable magnitude which went far beyond the end which was to be attained in 1984-1985; the extent of work undertaken in 1994, and its cost was quite disproportionate to the remedial work which was reasonably required. That is not a criticism of the plaintiff’s decision. However, the fact is, that the plaintiff made a policy decision in 1994 which was different from that made in 1984, when considerations of cost imposed a constraint upon the work which the plaintiff was prepared to authorise. In the result, the very substantial expenditure in 1994 does not provide me with much assistance in my search for evidence by which to measure the damage. I reach the conclusion as to the extent of the 1994 work and its cost after making due allowance for the fact that there is an expensive environmental infrastructure which needs to be established before even a comparatively small job is undertaken. My conclusion is based upon the fact that the ambit of the work required in 1994, went considerably beyond the scope of work which was reasonably required in 1985 and left undone. There was some asbestos debris which ought to have been removed in 1985 but left in situ. There was also, (apparently on the Full Court’s finding), some friable material such as the tufts observed on the air conditioning which ought to have been removed on the final clean in 1985. This is much more limited than the work for which BJ Insulation quoted on 18 January 1994 (Quote A/363), and as better described in letter dated 27 January 1994 from BJ Insulation to Department of Industrial Affairs. It is to be noted that this work proceeded upon the basis of removal and replacing of roof decking etc “...in lieu of cleaning existing roof materials to the otherwise required state” - see quote A/363 Exhibit P15.”
Later in his judgment, the learned trial judge observed:
“42.In my opinion, the plaintiff’s approach to the assessment of damages is not a fair one. The asbestos problem was attacked in a different and more thorough way in 1994 than ten years earlier. The roof was taken off and the building opened up as necessary as exemplified by the work of GW & CA O’Connor Pty Ltd in reinstatement. As I have already observed, a policy decision was made in 1984 based on considerations of cost. A different policy decision was adopted in 1994 which facilitated, (but at considerable cost), a much more thorough approach than could have reasonably been required or expected in 1984-85. It is arguable that a better course in 1984 might have been to leave the asbestos untouched and to inspect it periodically for deterioration.”
If one was to put aside reference to the actual work done by B.J. Insulation in 1994 and the cost of it, there was very little other evidence upon which the learned trial judge could confidently assess the fair cost of the necessary remedial work, that is, the remedial work necessary to remedy the shortfall in Consolidated Contractors’ performance of the work done in 1985, as at 1994. The difficulty which faced the learned trial judge in that respect was partly a product of the “all or nothing” approach of the appellant, who contended that it was entitled to have the damages assessed by reference to the larger of the two amounts quoted by B.J. Insulation, or at worst, the lesser of those two amounts, with some adjustments which it is unnecessary to go into at this stage.

The appellant declined, for example, to offer evidence of labour costs in 1994, and no evidence was led from Mr Rahlf, by way of examination in chief or cross examination, which gave specific guidance to the learned trial judge as to what part of the costs paid to that firm in 1994 could fairly be attributable to the necessary remedial work, strictly construed by reference to fulfilment of Consolidated Contractors’ contractual obligations and no more.
Faced with those difficulties, and notwithstanding the principle which the learned trial judge correctly identified, namely, that the normal measure of damages is to be assessed by reference to the cost of reinstatement at the time that the defects were discovered, he had resort to a less direct method of assessing the damages, namely by having regard to costs calculated as at 1985. In approaching the matter in that way, he was assisted by one concession between the parties, which was confirmed during the hearing of the appeal before this Court. It was agreed between the parties that if the learned trial judge assessed the damages in terms of 1985 values, it was proper to multiply the amount reached in that way by two and a half to reach what he described as “the changing value of money and interest over approximately fifteen years”, that is, to the year 2000.
The learned trial judge then addressed the allowance to be made in the assessment for labour costs, which was the most substantial element in the process. In assessing the labour costs, the learned trial judge stated:
“I apply my general knowledge of the cost of labour over the years, including the practices of the building industry in terms of charging direct costs plus a percentage. I have decided that $30 per hour in 1985 would provide a contractor with an appropriate margin of profit. (I note that the defendant was charging the plaintiff $25 per hour for his services, and I note that in exhibit P31 Consolidated Contractors were suggesting ‘$29.50 per hour as normal time for day work’).”
He made the further comment:
“I assess the further work to be comparatively unattractive in a commercial sense to an asbestos remover. It is a small job without much room for profit except by reference to a margin on the labour costs. I consider that a contractor would expect to be well paid in order to make the job worthwhile.”
As for the number of hours of work which would be involved, the learned trial judge proceeded on an assumption that it would be appropriate for the work to be performed by a team comprising a foreperson supervising three workers engaged for an eight hour day. He further estimated that the work would take one week to set up and about three days to dismantle. Accordingly, as to setting up and dismantling, he allowed a total of ten days. Applied to four workers each working an eight hour day, this led to a total of 320 hours.
The learned trial judge then estimated that the actual cleaning up of asbestos and respraying would involve the same team over approximately another four days, or another 128 hours, or 448 hours altogether.
In the result, for overall labour costs he allowed the 448 hours at $30, leading to a total of $13,440.
As for other heads of damage, the learned trial judge made the following observation:
“I assess the remedial work required as being relatively small, but it would be necessary to set up a sealed environment within a plastic bubble to enable work to proceed with the appropriate government licence. It would be necessary for this infrastructure to be subject to a satisfactory smoke test before work proceeds. An asbestos monitor would have to be engaged. The hazardous and specialised nature of the work would justify architectural supervision of a new specification which was prepared professionally. A final inspection by the architect would be appropriate, but this would not be at Mr Grieve’s cost. He only charged for time spent on the job and the plaintiff must expect to pay the proper cost of the architect’s final inspection. As the problem has remained undiscovered until 1994, the work would have to be done to the more recent government requirements, (including licence fees), rather than those which applied some ten years earlier.”
In the result, he arrived at the following totals:
“Labour costs (448 hrs @ $30)  $13,440
Monitor’s allowance  800
Provision for architect (including supervision)  2,500
Balance as provision for sundries-PVC spray,
cartage & disposal costs and government fees etc                   3,260
  $20,000”
Applying the agreed multiplier of two and a half, His Honour then reached the amount of his judgment, that is to say, $50,000.
Although the learned trial judge recognised that there might be other costs which he described as “consequential costs” associated with the remedial work, such as the need to relocate staff, he held that he did not have sufficient information to assess damages by reference to any such other matters.
In my opinion, there was no error of principle which might be thought to affect His Honour’s approach to the matter. He correctly approached his task on the basis that it was incumbent upon him to assess the reasonable cost of the necessary remedial work as of the time of discovery of the defect, that is, 1994, and he correctly identified the items of work which would be associated with making good the work by reference to the shortcomings in Consolidated Contractors’ performance.
In my opinion, the central question is whether or not there was sufficient evidence before the learned trial judge for him to assess the money amounts attributable to the various items of expense which would be involved.
I would reject the appellant’s contention that the learned trial judge should have approached the assessment on the footing that it was necessary to remove the roof of the building, or that for any other reason he should have allowed more than he ordered.
This means that the appeal as to damages should be dismissed.
The more difficult question is as to whether or not the cross-appeal should be allowed. The gravamen of the contention advanced by the respondent was that the appellant had simply failed to adduce sufficient evidence to enable the learned trial judge to allow anything but a purely nominal award.
The learned trial judge was very much alive to the difficulties which he faced. His general approach finds expression in the following two passages from his judgment:
“Counsel for the defendant has submitted that the evidence is insufficient to enable an assessment to be made. Difficult as it is, I consider that I should do the best with what is available.
Nevertheless, it is true that the material before me is scarcely sufficient to enable me to make an assessment. Counsel has reminded me that I am not entitled to speculate. I have before me some building plans and description of the building and a general description of the work required. I have chosen a team of four persons as being what I consider likely to be most efficient. I have chosen to be conservative in my estimating to ensure that the defendant is not called upon to pay a greater amount than is fair. To the extent that the evidence falls short, the plaintiff (who bears the onus of proof), will have to bear the consequence.”
As to the largest element in his assessment, namely, labour costs, Mr Trim QC for the respondent argued that the evidence was insufficient to justify either the hourly rate applied by the learned trial judge or his estimate of the number of hours which might be involved.
It seems to me that that submission fails to give sufficient weight to the fact that the learned trial judge initially heard a lengthy trial which involved, amongst other things, a detailed description of the problem as it first presented in 1985, and a detailed description of the work done by Consolidated Contractors, including the techniques used in removing or attempting to remove the asbestos and the associated adhesive. He was aware of the amounts charged for the work done at that stage, and he had evidence before him of quotations for remedial work, albeit involving work which was more extensive than necessary, but at least this gave him some idea of the scale of the costs involved.
There can be no doubt that if remedial work of the kind necessary to remedy the shortfall in Consolidated Contractors’ performance had been undertaken in 1994, it would have involved sealing off the area by the erection of the appropriate infrastructure, together with the engagement of an asbestos monitor.
It would have been better if more precise evidence had been led by the plaintiff, tied in with the basis upon which the learned trial judge ultimately felt it proper to base the award. But the assessment of damages is often accompanied by the need for the court to make informed broad allowances for various heads of damages which in some instances cannot be arithmetically calculated or as to which the evidence does not allow for precise calculation.
At the end of the day, I have reached the view that the learned trial judge approached the matter in the manner in which he said he would, namely, by doing the best that he could with the available evidence. The respondent has failed to discharge the onus of satisfying me that in the process of assessment which the learned trial judge followed, he erred.
I would dismiss the cross-appeal against the assessment.
Appeal as to Costs
After delivery of his judgment following the assessment of damages, the learned trial judge heard argument as to costs.
He delivered separate reasons as to his rulings on costs on 7 December 2000.
The respondent had filed a Rules of Court offer on 11 June 1997 in the sum of $30,000. Applying the formula by which the learned trial judge had increased the base amount of $20,000 as at 1985 from which his assessment proceeded, in the reasons as to costs he held that as at the date of the filing of the offer the assessment would have been of the order of $44,000, which is more than the amount of the offer. The learned trial judge further held that the offer was not “adequate” within the meaning of SCR r 40.05(b). It followed that the filing of the Rules of Court offer did not operate to deprive the plaintiff of costs to which it was otherwise entitled.
However, the matter did not rest there. The learned trial judge then had regard to s 40 of the Supreme Court Act 1935 which provides:
“(1)Subject to the express provisions of this Act, and to the rules of court, and to the express provisions of any other Act whenever passed, the costs of and incidental to all proceedings in the court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid.
(2)If-
(a)     an action for the recovery of damages or any other monetary sum is brought in the Court;
(b)    the action might have been brought in the District Court; and
(c)    the plaintiff recovers less than an amount fixed by the rules for the purposes of this paragraph,
no order for costs will be made in favour of the plaintiff unless the court is of the opinion that it is just, in the circumstances of the case, that the plaintiff should recover the whole or part of the costs of action.”
The relevant amount fixed for the purposes of s 40(2) is $75,000.[12] The amount awarded was, of course, less than that amount.
[12] See SCR r 101.02A(c).
It followed that, pursuant to s 40, it was incumbent upon the trial judge to make no order for costs in favour of the plaintiff, unless he was prepared to exercise his discretion to award “the whole or part of the costs of action” if he was of the view that it was “just in the circumstances of the case”.
As to this aspect of the matter, which was argued but faintly by Mr Hevey of counsel for the appellant, it is sufficient to indicate that in my view there is no reason to interfere with the learned trial judge’s exercise of the discretion. In fact he allowed in favour of the plaintiff costs of one day, that is, 4 June 1999 only, the costs incurred with respect to a hearing on that day relating to a discrete issue which he considered to be such as to justify an exception to that extent.
I would dismiss the appellant’s appeals as to the assessment and as to costs, and the respondent’s notice of cross-appeal.
LANDER J.           I agree with the reasons of Perry J and the orders which he has proposed.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1.    See reasons for judgment dated 4 June 1998, Judgment No S6705.
2. See reasons for judgment of Doyle CJ, Perry and Martin JJ dated 13 May 1999, Judgment No [1999] SASC 183.
3. See reasons for judgment of Doyle CJ, Perry and Martin JJ dated 8 September 1999, Judgment No [1999] SASC 369.
4.    An application by the plaintiff to call certain further evidence was rejected by the trial judge, partly because the plaintiff was unwilling to give an undertaking to call other witnesses if required for cross examination. Short reasons in support of that ruling were delivered on 5 July 2000.
5. Judgment of Williams J dated 17 November 2000, Judgment No [2000] SASC 381.
6. See reasons for judgment of Williams J dated 7 December 2000, Judgment No [2000] SASC 430.
7.    Judgment No S6705, para 22.
8.    Ibid para 23.
9.    Ibid para 83.
10. [1966] AC 406.
11. (1953-54) 90 CLR 613.
12.   See SCR r 101.02A(c).

[2002] SASC 25

19 February 2002