Cadoo v BHP Billiton Limited (No 2) - [2013] SADC 40

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CADOO v BHP BILLITON LIMITED (No 2)
[2013] SADC 40
Judgment of His Honour Judge Lovell
3 April 2013
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS
Application to re-open defence case after reasons delivered.
Held: Application refused.
Smith v New South Wales Bar Association (1992) 176 CLR 256; Orr v Holmes (1948) 76 CLR 632 at 640; Wollongong Corporation v Cowan (1955) 93 CLR 435 at 444, discussed.

CADOO v BHP BILLITON LIMITED (No 2)
[2013] SADC 40

By way of interlocutory application, the defendant seeks leave to re-open its case and tender further evidence. The plaintiff opposes the application.
History
This matter proceeded to trial on both liability and damages. The trial was heard with the trial of Parker v BHP Billiton Limited.[1] I delivered reasons in this matter on 16 March 2012.
[1] [2011] SADC 104.
Counsel, with my agreement, had left open, until after reasons were delivered, an argument relating to “double satisfaction”. Judgment was therefore not entered pending resolution of that argument.
On 17 April 2012, I listed the outstanding issue for argument on 30 July 2012. This was later administratively changed to 6 August 2012. On 25 May 2012, application was made to vacate the hearing date due to the unavailability of senior counsel. The 18 December 2012 was the earliest date when all counsel were available; the matter was listed for hearing on that date.
A Master of the Court heard a number of interlocutory applications in the intervening period.
Prior to 18 December 2012, the defendant filed this application. Material came into their possession, relevant to this case, around 14 November 2012.
The documents, the subject of this application, were exhibited to an affidavit of Mr Scott Hay of 3 December 2012.[2]
[2] Affidavit of Scott Hay dated 3 December 2012 (Exhibit SAH-1).
The material, the subject of the application, thus came into the possession of the defendant’s solicitors some eight months after delivery of my reasons for decision but before determination of the “double satisfaction” question.
The Law
While the power to re-open a case and allow further evidence is not in doubt, it is a power that must be exercised sparingly having regard to the public interest in maintaining the finality of litigation.
The matters to be considered on such an application and the weight to be given to them vary depending upon the stage reached in the litigation.
In this matter, as already discussed, factual findings have been made and my reasons for so making those findings have been delivered. Formal judgment has not yet been pronounced pending my decision on the outstanding argument.
Where reasons for judgment have been delivered, the appeal rules relating to fresh evidence provide a guide as to the manner in which the discretion to re-open should be exercised.[3]
[3] Smith v New South Wales Bar Association (1992) 176 CLR 256.
In Orr v Holmes,[4] Dixon J stated:
If a trial has been regularly conducted and the party against whom the verdict has passed cannot complain that evidence has been wrongly received or rejected or that there has been a misdirection or that the result is not warranted by the evidence, the successful party is not to be deprived of the verdict he has obtained except to fulfil an imperative demand of justice. The discovery of fresh evidence makes no such demand upon justice unless it is almost certain that, if the evidence had been available and had been adduced, an opposite result would have been reached and unless no reasonable diligence upon the part of the defeated party would have enabled him to procure the evidence.
[4] (1948) 76 CLR 632 at 640.
Latham CJ stated: “Further, before a new trial is granted on the ground of discovery of fresh evidence it must be shown at least that the evidence to be admitted is ‘of such importance as very probably to influence the decision’ …”
That was a case where a jury verdict had been regularly obtained.
In Wollongong Corporation v Cowan,[5] Dixon CJ referred to Orr v Holmes and stated:
… it is essential to give effect to the rule that the verdict, regularly obtained, must not be disturbed without some insistent demand of justice. The discovery of fresh evidence in such circumstances could rarely, if ever, be a ground for a new trial unless certain well-known conditions are fulfilled. It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial.
[5] (1955) 93 CLR 435 at 444.
He added:
In Orr v Holmes there are collected a number of different expressions which have been judicially used at various times. Their result is then summed up in these words: —“No doubt some of the foregoing expressions are susceptible of a weaker application than others of them. But the evident purpose of all of them is to ensure that new trials will not be granted because of fresh evidence unless it places such a different complexion upon the case that a reversal of the former result ought certainly to ensue. The fact which the new evidence tends to prove, if it does not itself form part of the issue, must be well nigh decisive of the state of facts upon which the issue depends. The evidence must be so persuasive of the existence of the fact it tends to prove that a finding to the contrary, if it had been given, would, upon the materials before the court, appear to have been improbable if not unreasonable.
Again it should be noted that the appeal was from a regularly obtained jury verdict.
The position in Smith v New South Wales Bar Association[6] was different. The NSW Court of Appeal made an order that Mr Smith’s name should be removed from the roll of barristers. After publication of reasons for judgment and before the order was entered, the appellant moved the Court of Appeal to re-open the matter by reason of error. The Court of Appeal allowed the application to re-open.
[6] (1992) 176 CLR 256.
On appeal the High Court stated:
It is again necessary to distinguish between the considerations which may bear on a decision to re-open and the processes involved in reconsideration once a case has been re-opened. If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete, or one in which reasons for judgment have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised. But those considerations bearing on re-opening are not decisive of the question whether, a matter having been re-opened by reason of error, further evidence can be called.
The rules relating to “fresh” evidence on appeal are therefore a useful guide in a case such as this. The power to re-open a case in these circumstances must be used sparingly, bearing in mind the over-riding concept of serving the interests of justice. However, it must be reasonably clear that if the evidence had been produced at trial, an opposite result would have been produced or if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose to the contrary.[7]
[7] Wollongong Corporation v Cowan (1955) 93 CLR 435.
Due to the decision I have reached concerning the relevance of the material sought to be adduced, I do not need to decide the question of whether the evidence could have been obtained, by reasonable diligence, at an earlier time. I indicate that I accept Mr Hay as a truthful witness.
The “new” material
The material sought to be put into evidence is exhibited to the affidavit of Mr Hay.[8] The material related, amongst other matters, to what, in the trials of Mr Parker and Mr Cadoo, was referred to as the “Wilson Report”. I have had regard to all of the material exhibited to the affidavit.
[8] Affidavit dated 3 December 2012 (Exhibit SAH-1).
The defendant submitted that the new material had relevance in two ways:
1. The “Wilson Report” and the exposure conditions faced by the workers at various times; and
2. What the defendant “ought to have known” at the time, given Dr Wilson’s state of scientific knowledge as a “State” expert.
In the case of Mr Parker, I made specific findings about the “Wilson Report”. My findings were the subject of discussion on appeal.[9]
[9] [2012] SASCFC 73 [86]-[105] and [318] ff.
In my published reasons for decision in Mr Cadoo’s matter, I adopted the findings I made in Mr Parker’s case in relation to the “Wilson Report”. I further noted that “the report is of limited relevance given the time when Mr Cadoo stopped working for the defendant”.[10]
[10] [2012] SADC 31 [9].
I rejected the submission at trial that the “Wilson Report” undermined the oral evidence of the witnesses at trial. In my reasons in the Parker judgment, I found that the defendant restricted the “inspection” by Dr Wilson and that his report was “narrow in focus and clearly a superficial assessment.”[11]
[11] [2011] SADC 104 [515].
It was submitted that the “new” material was directly relevant to these points. Further, it was submitted that the material showed Dr Wilson’s state of knowledge not to be “superficial”.
The material also included part of the transcript of the Board of Reference proceedings held on 13 November 1968. It was accepted that Dr Wilson was present at the proceedings.[12]
[12] Transcript 46–57 of that hearing.
It was submitted that the transcript showed that it was not the defendant who was “controlling the situation”. Dr Wilson was present at the hearing and therefore did not attend the inspection without background knowledge of the issue. It was submitted that in my reasons in both Parker and subsequently adopted in Cadoo, I inferred that BHP requested and controlled Dr Wilson’s visit to the Whyalla Shipyards. The defendant submitted that inferences I drew about its “wishes or beliefs” in relation to the inspection by Dr Wilson as evidenced by the memo of 14 November 1968, was now contradicted, or arguably at least, by the new information. The defendant submitted that the new evidence is relevant to the inference that BHP “limited” the inspection. It argued that the new evidence shows that the inference is not open or at least ought not to be drawn.
Further, it was submitted that the new material, when read in conjunction with the exhibits and evidence at the trial, meant that such findings could not stand.
I have taken into account all of the submissions made on behalf of the defendant.
I reject the submissions of the defendant.
My findings on the “Wilson Report” were reviewed by the Full Court on Appeal in the Parker matter. The Full Court did not accept my finding that the defendant requested and controlled the inspection. Indeed they did not, at one level at least, accept my assessment of the report by Dr Wilson as superficial. The Full Court did not disturb my finding about the use I made of the “Wilson Report” when looking at the evidence produced by the plaintiff that stood in stark contrast to that described in the “Wilson Report”.
The “Wilson Report” sets out what Dr Wilson saw and did. It sets out his findings and recommendations. That is what I relied on in my findings. Taking the new material at its highest it would not affect my overall assessment of the “Wilson Report”. The witnesses called by the plaintiff and the affidavits tendered established a work-site that was substantially different to that reported on by Dr Wilson.
On any view, the admission of this material, whilst accepted as being relevant and admissible on those issues, would not affect my findings in the matter. It could not be said that if the evidence had been produced at trial, an opposite result would have been produced or if it is not reasonably clear that it would have been produced, it would be so highly likely as to make it unreasonable to suppose to the contrary.[13] The interests of justice would not be served by the evidence being re-opened.
[13] Wollongong Corporation v Cowan (1955) 93 CLR 435.
In relation to the second matter raised it was submitted that the new material was relevant to my assessment of the NH&MRC evidence and my findings on “reasonable forseeability”.
The defendant submitted that the “new” material supported the position that in 1967 and 1968 there was a “spate” of publications which raised the issues of mesothelioma and that it was around that time the issue became a “public” one. It was submitted that the NH&MRC was not “out of step”. It was submitted that the NH&MRC were “looking” at the problems and the simple fact that an article had been published at an earlier time, such as the Wagner article, could not be used to say what the relevant scientific community knew as at the time of the plaintiff’s exposure.
The defendant submitted that as Dr Wilson had access to these articles at the time this should affect my assessment of the state of knowledge as at 1968. Thus the defendant submitted that my finding on the state of knowledge of the scientific community in 1962 could not stand. In turn that question affected what the defendant knew or should have known at the relevant time.
I reject that submission. I dealt at some length in the Parker judgment with the state of knowledge at the relevant times. I also had the benefit of the evidence of Dr Becklake. The new material taken at its highest has very limited relevance and weight in relation to this question.
The new material on any view would not affect my findings on the question of reasonable foreseeability. Again it could not be said that if the evidence had been produced at trial, an opposite result would have been produced or if it is not reasonably clear that it would have been produced, it would be so highly likely as to make it unreasonable to suppose to the contrary.[14] The interests of justice would not be served by the evidence being re-opened.
[14] Wollongong Corporation v Cowan (1955) 93 CLR 435.
I refuse the application by the defendant to re-open its case.