Ball v Eldarin Services Metro Pty Ltd (Ruling No 1)

[2011] VCC 290

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

DAMAGES AND COMPENSATION

Case No. CI-09-03307

STEPHEN BALL	Plaintiff
v
ELDARIN SERVICES METRO PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February 2011
DATE OF RULING:	18 February 2011
CASE MAY BE CITED AS:	Ball v Eldarin Services Metro Pty Ltd (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2011] VCC 290

RULING

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Catchwords: EVIDENCE – Order 34A – Failure to disclose material in Court Book – discretion as to admissibility of material not disclosed in Court Book.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Moore QC with	Tasiopoulos Lambros & Co
Mr G J Sala
For the Defendant	Mr R H Gillies QC with	Lander & Rogers
Ms M Tsikaris
HIS HONOUR:

1          My ruling is sought upon the issue, firstly, as to whether the defendant is entitled, in the course of cross-examination of the plaintiff, to make use of one or more medical certificates which contain declarations by the plaintiff as to his capacity to work. The relevant certificates are not contained in the defendant's Court Book, nor are they specifically referred to by the defendant in its Court Book index. In these circumstances, the plaintiff contends that the certificates should not be introduced in evidence in this proceeding.

2          It is put on behalf of the defendant that the Court Book index, by making a generalised statement as to material to be relied upon, provides the relevant disclosure of these certificates. Given that the purpose of the preparation of the Court Book is, as I perceive it, to provide the parties both with notice of and access to the documents which are to be relied upon by a party in the course of a trial, I am satisfied that by failing to specifically refer to the certificates the subject of this application in the index, and to include the copies of those certificates in its Court Book, the defendant was in breach of the relevant order, which provides:

"Unless the court otherwise orders the trial proceeding shall not be held if any court book required to be filed and served in accordance with this order has not been filed.” See Order 37A sub-rule (27).

3          The orders of specific relevance to this application are:

(i) Order 34A, sub-rule (32), which provides

"The court book of a defendant shall include a copy of each
document the defendant intends to tender in evidence."

(ii)     and Order 34A, sub-rule (29), which provides:

“Save with leave of the court or by consent of the parties, a party shall not tender in evidence at the trial of a proceeding a document, a copy of which the party was required to include in the court book of the party of which the party did not include."

4          It is clear that the language of Order 34A, sub-rule (29), gives me discretion to allow the defendant to rely upon the certificates in question, notwithstanding their absence from the defendant's Court Book.

5          In exercising this discretion, I am satisfied that I should take into account primarily any prejudice which is occasioned to the plaintiff by reason of the absence of the documents from the defendant's Court Book, and that I should not allow the defendant to rely upon the certificates if I am satisfied:

(i)	that the defendant's failure has denied the plaintiff the opportunity of responding to the issue which now arises by adducing evidence which is now not available to him but would have been available to him had there been appropriate disclosure; or
(ii)	that to allow the defendant to rely upon the certificates would offend against the relevant rule as to the admissibility of evidence.

6          In this respect, it is put that the inclusion of the documents in the Court Book may have caused the plaintiff to adopt a different course to that taken in the trial to date. I am not satisfied that this is so given the fact that before commencing his evidence the plaintiff was aware that the defendant was to make an issue of the fact that the plaintiff had undertaken some paid employment, and that this knowledge arose by reason of the delivery by the defendant to the plaintiff of bank records, which included a record of payments made to him with respect to work so done.

7          Although I was not addressed by Mr Moore as to my power to exclude the evidence pursuant to s.135 of the Uniform Evidence Act, it is difficult to identify the basis upon which I should be moved to exercise the discretion conferred upon me by that section in circumstances in which the issue which arises with respect to the medical certificates is closely related to the issue which I have already ruled upon, and in respect of which the plaintiff has informed me that he intends to answer questions as to the inconsistency between his answers to interrogatories and his viva voce evidence with respect of his work history. I note that in respect of this evidence, I have provided the plaintiff with a certificate pursuant to s.128 of the Evidence Act.

8          In ruling upon this issue, I take into account:

• firstly, the relevance of the material which I consider is relevant not only to credit but perhaps also to capacity to work;

• secondly, the fact that the documents the subject of the application were the plaintiff's own, in that they contained a declaration made by him and that the facts relevant to the declaration were, at the time in which they were made, well known to him;

• thirdly, that the effect of my ruling will not necessarily deprive the plaintiff of his right to refuse to answer questions as to the documents, because before he makes an election he will be given a warning similar to that which was given to him with respect to the previous matter which arose under s.128 of the Uniform Evidence Act;

• fourthly, that the issue with respect to the medical certificate is one which is related to the issue upon which I have already ruled and in respect of which the plaintiff intends to give evidence.

9          In the circumstances, I am satisfied that I should allow the defendant to rely on the medical certificates in question, subject, of course, to the plaintiff being given the appropriate warning which I considered he is entitled to pursuant to the provisions of s.128 of the Evidence Act.

10        With respect to the further issue which arises as to the adequacy of the defendants' discovery, it is contended by the plaintiff that there was inadequate discovery, in that only the first page of the relevant certificates was made available. This position is disputed by the defendant.

11        In the absence of evidence upon the issue, it is difficult to adjudicate between the two positions.

12        Even accepting however, the plaintiff's position at its highest, in exercising the discretion which I have as to the admissibility of the material, I take into account the matters to which I have previously referred and in particular, the absence of any prejudice to the plaintiff, in sense that he has been denied the opportunity to adduce evidence that would otherwise have been available to him had the issue been raised earlier.

13        For those reasons, I consider that it is appropriate that I exercise my discretion both with respect to the discovery point and the Court Book point to allow the defendant to make use of the relevant medical certificates.

14 I have already indicated that I have serious concerns as to whether I would allow the evidence if the documents in question constitute statements pursuant to the provisions of s.45 of the Accident Compensation Act. I will hear the parties as to whether or not in the present circumstances the obligation under that Act arises in this proceeding.

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