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Ballard v Multiplex

Ballard v Multiplex

Case [2012] NSWSC 426 3 May 2012

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Ballard v Multiplex [2012] NSWSC 426
Hearing dates: Smart AJ 81 days between 6 September 2011 and 22 September 2011; McDougall J 9/11/2012, 10/11/11, 11/11/11, 14/11/11, 16/11/11,17/11/11, 18/11/11, 21/11/11, 22/11/11, 23/11/11, 24/11/11, 25/11/11
Decision date: 03 May 2012
Jurisdiction: Equity Division - Commercial List
Before: McDougall J
Decision:
Judgment for defendants with costs

Catchwords:
[PROCEDURE] - plaintiff's application to reopen case - whether interests of justice favour reopening for purpose of admitting new material - whether finding by a commissioner as to the credibility of a witness is admissible in other proceedings for the purpose of proving that witness's credibility - whether plaintiff made a tactical decision not to tender an expert's report - whether expert's report, obtained on subpoena, is tendered for the purpose of responding to a submission put by the defendants as to plaintiff's alleged depression.

[EVIDENCE] - proof - standard of proof - civil - approach to assessment of credibility - burden of proof to the Briginshaw v Briginshaw standard - whether onus of proof in civil litigation is any different where the fact involves criminal conduct, fraud or serious misconduct - whether evidence of each witness should be assessed, on its own merits, for credibility - whether court can defer resolution of the question of credibility until all the facts have been found.

[TORTS] - intentional - conspiracy - harm by lawful means - harm by unlawful means - whether there existed a conspiratorial agreement between the first, second, either the third and fourth or both, or the fifth defendant and others to ensure that the plaintiff and his company were removed from the construction industry - whether defendants' intent and purpose of agreement was to injure the plaintiff - whether first and second defendants had an evil intention of the kind contemplated by Evatt J in McKernan v Fraser - whether purpose of the fifth defendant entering into agreement (if it did) was to injure the plaintiff - whether agreement becomes tainted and all participants are liable for harm if one, or all of the defendants had an evil motive and countenanced this purpose by giving assistance - whether any such conspiracy agreement was carried into execution.

[TORTS] - intentional - tort of intimidation - whether third, fourth and fifth defendants coerced the first and second defendants by way of threat and intimidation to terminate the construction contract - whether threats by defendant were unlawful as to induce, procure or engage in unlawful industrial action - whether third and fourth defendants threatened to use unlawful means to compel the first and second defendants to obey the defendant's demands - whether the third and fourth defendants intended that by making the threat, the first and second defendants would be persuaded to accede to the other defendants' will, being to deprive the plaintiff of the opportunity to provide demolition services.

[TORTS] - intentional - wrongful interference - whether tort of unlawful interference exists - whether third, fourth and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ballard v Multiplex

Details

AGLC: Ballard v Multiplex [2012] NSWSC 426
Case: [2012] NSWSC 426
Decision Date: 03 May 2012

CaseChat Overview and Summary

In the matter of Ballard v Multiplex, the plaintiff sought to reopen their case to admit new evidence, including an expert's report, which had not been available at the time of the original proceedings. The defendants opposed the application, arguing that the plaintiff's decision not to tender the expert's report earlier was tactical, and that the report should not be admitted now to respond to submissions made by the defendants. The court had to decide whether the interests of justice favoured reopening the case, the admissibility of findings from a previous commissioner regarding a witness's credibility, and whether the plaintiff's tactical decision not to tender the expert's report earlier precluded its admission now.

The court examined the standard of proof in civil cases, applying the Briginshaw v Briginshaw principle, and considered whether the credibility of witnesses should be assessed individually or after all facts have been found. It deliberated on the admissibility of findings from a commissioner regarding a witness's credibility in subsequent proceedings and whether the plaintiff's tactical decision not to tender the expert's report earlier precluded its admission now. The court also assessed whether the defendants' actions constituted a conspiracy, intentional torts such as intimidation and wrongful interference, and if the plaintiff's cause of action was statute-barred due to fraudulent concealment by the defendants.

The court found that the interests of justice did not favour reopening the case, as the plaintiff's tactical decision not to tender the expert's report earlier precluded its admission now. The court also determined that the findings of the commissioner regarding the credibility of a witness were not admissible in the current proceedings. The court concluded that the defendants' actions did not constitute a conspiracy, and the plaintiff's claims of intentional torts such as intimidation and wrongful interference were not substantiated. The court further held that the plaintiff's cause of action was not statute-barred, as they had not proved fraudulent concealment by the defendants.

The court's final orders dismissed the plaintiff's application to reopen the case, denied the admission of the expert's report, and found in favour of the defendants on all claims. The court ruled that the plaintiff was not entitled to claim damages for lost earnings, loss of opportunity, or any other damages related to the conspiracy, and the defendants were not liable for any of the plaintiff's claims. The court's decision was based on the plaintiff's tactical decision not to tender the expert's report earlier, the inadmissibility of findings from a commissioner regarding a witness's credibility, and the lack of evidence to support the plaintiff's claims.

Orders