Christodoulou v Tunstall Square Fruit and Vegetables Pty Ltd

[2010] VCC 1563

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

GENERAL DIVISION

Case No. CI-10-01179

MARIA CHRISTODOULOU	Plaintiff
v
TUNSTALL SQUARE FRUIT & VEGETABLES PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	9, 10, 11 November 2010
DATE OF RULING:	11 November 2010
CASE MAY BE CITED AS:	Christodoulou v Tunstall Square Fruit & Vegetables Pty Ltd (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2010] VCC 1563

RULING

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Catchwords: Civil personal injuries jury trial – admissibility of document not discovered – application for adjournment to enable document to be used in evidence in new trial – prejudice to the plaintiff – efficient use of Court resources – application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J B Richards SC with	Zaparas Lawyers
Ms P R Riddell
For the Defendant	Mr P A Scanlon QC with	Thompson Lawyers
Ms H Donmez
HIS HONOUR:

1          In the course of this civil jury trial, an issue arose as to the admissibility of a computer printout document. On 11 November 2010, I ruled the document as inadmissible.

2          As a consequence, Mr Scanlon, on behalf of the defendant, sought an adjournment of the trial to be re-listed and heard before a judge and jury so as to enable the document to be properly discovered and then used in the course of that re-trial.

3          The plaintiff brings this proceeding seeking damages for injury sustained to her right shoulder in the course of her employment with the defendant. She alleges the injury occurred over a period of time from 2004, and in particular on 16 January 2008 when, in the course of lifting a large watermelon as part of her duties as cashier in a fruit and vegetable shop, she suffered significant pain to the right shoulder. Subsequent investigation revealed damage to the underlying structure of the right shoulder, in particular to the supraspinatus tendon.

4          In the course of her evidence relating to the circumstances surrounding the incident on 16 January 2008,[1] the plaintiff described that as part of her duties, she was required to reach for heavy items of fruit and vegetables, including watermelons, at her cashier’s counter at the store, lift them onto scales and then into bags or boxes to be taken by the customer. She described in the incident of 16 January 2008, that she was serving a couple who had a large order of fruit and vegetables. The order took up considerable space upon the bench in front of her. She described the bench as “full of items, vegetables and fruit from the couple that come in”.[2] There was a watermelon at the end of the bench away from her and, as was her habit, she weighed and packed the heavier items first. To do that, she had to lift the watermelon over the bench full of items and onto the scales. It was in that process she alleges she suffered significant pain in the right shoulder.

[1]             Transcript 60

[2]             T60 L29

5          The trial commenced on the 9 November 2010. On the morning of 11 November 2010, and partway through the plaintiff’s cross-examination, Mr Richards was provided by Mr Scanlon with a document described as a printout from the computer/cash register used by the plaintiff at the time she suffered pain in her shoulder on the 16 January 2008 (“the printout”). That document, it was said, could be properly identified as a computer record of the items purchased by the same couple at the time. The document recorded that instead of many items purchased by the customers, in fact there were only four items. If admitted into evidence, the contents of the printout could cast doubt as to whether it was necessary for the plaintiff to lift the watermelon over a large number of items of fruit and vegetables on her bench in the manner described.

6          It was accepted by Mr Scanlon that the document ought to have been discovered, and was a document of significance in the assessment of the credibility of the plaintiff, and relevant to the issue of liability. There was no explanation given as to why the document was not discovered, but I was advised, and accept, it only came into the possession of the solicitors for the defendant some time on 10 November 2010. Mr Scanlon indicated that enquiries were made of the proprietors of the defendant company about the plaintiff’s evidence as to the number of items purchased, and the document was produced in response.

7          Given the failure by the defendant to discover the document, and its late production, I ruled that the document could not be admitted into evidence, nor could evidence be led as to its content.[3]

[3]             Ruling of 11 November 2010

8          Consequent upon that ruling, Mr Scanlon applied for the trial to be adjourned, that leave to be granted to the defendant to file and serve a further affidavit of documents, disclosing the printout and for the matter to be listed for hearing for a fresh trial before a judge and jury.

9          In submission, Mr Scanlon said the following:

(a)	He accepted that the document was discoverable and ought to have been part of the defendant’s affidavit of documents;
(b)	He submitted the document was significant to the defendant’s case. He said the plaintiff’s affidavit in support of her application for leave to bring proceedings pursuant to s.134AB of the Accident Compensation Act[4] did not provide any detail as to the number of items over which the plaintiff was required to lift the watermelon at the time of the onset of pain.[5] In those circumstances, he said that further enquiry by the defendant was not made until the plaintiff had given that evidence;
(c)	Apparently an earlier attempt was made to obtain a printout of the relevant computer by an investigator, but that attempt was unsuccessful;
(d)	He submitted that requiring the defendant to proceed and not be in a position to rely upon the printout was a matter of significant prejudice to the defendant, and unfair in the circumstances;
(e)	Justice in the circumstances could be achieved by the adjournment of the proceeding and to enable the plaintiff to give evidence afresh on the issue.

[4]             paragraph 9 of the affidavit of the plaintiff sworn 24 June 2009.

[5]             There is no requirement, however, for a worker to disclose details of the evidence to be relied upon as to liability in a trial, in the course of an application for serious injury. The affidavit in support generally, while describing the circumstances of injury, is concerned more with injury and the consequences of injury.

10        In answer to a question by me, Mr Scanlon conceded that the defendant did propose to use the plaintiff’s evidence in this trial to cross-examine her in any subsequent trial, in the event she gave any different evidence on the point as to the number of items on the bench in front of her, at the time of the incident.

11        Mr Richards opposed the application for adjournment on the grounds:

[6] [2009] HCA 27

[7] [2009] VSC 552

(a)	The situation was brought about by the failure of the defendant to abide by the rules of discovery, and to permit a new trial would create a substantial prejudice to her as her evidence in this trial could be used as a basis for cross-examination in any subsequent trial;
(b)	By reason of the decisions in Aon Risk Services Australia Ltd v Australian National University (“Aon”)[6] and Tinworth v W V Management Pty Ltd & Anor,[7] the Courts must consider the wider public interest and efficient use of Court resources when deciding whether or not to grant an application which results in an adjournment.

12        The first issue is the nature and significance of the printout the subject of the application. There is no issue it is discoverable and ought to have been discovered. I accept the submissions of Mr Scanlon that it is a document of significance on the issue of liability and that the defendant seeks to rely upon it in the trial. In a previous ruling in this trial, I permitted Mr Scanlon to cross- examine from an affidavit of the plaintiff’s husband sworn and filed by him in support of his application for leave to bring proceedings under the Accident Compensation Act.[8] In so ruling, I stated that the truth of the evidence of the plaintiff on the issue of liability did not depend upon the contents or otherwise of her husband’s affidavit. The same principle must apply when regard is had to the printout. However, if presented with the document, counsel and instructing solicitors advising the plaintiff would have the opportunity in conference to consider the contents of the printout and ask the plaintiff her response to the contents. The plaintiff might have said the document was incorrect or inaccurate, or may take the view that her belief as to the number of items upon the counter at the time was mistaken, or take some position in between. The presence of the document would offer counsel the opportunity to know what the defendant would say on the issue and to prepare his case with that knowledge. He would have the opportunity to put to the plaintiff in the course of examination-in-chief, what her response was to the expected evidence of the defendant on the issue. She would have the opportunity to respond in front of the jury and her response could have a significant effect upon the way the jury would determine whether to accept her evidence or not. Whatever the plaintiff’s response, counsel for her would have been in a position to know what was to come on the issue from the defendant’s camp and to structure his case, even subtly, accordingly. The impact of such evidence upon a jury could be substantial. The way the matter is accommodated by experienced counsel can have a significant impact on the determination of the issue by the jury.

[8]             Ruling of 11 November 2010

13        The plaintiff is now left in the position of, having given her evidence-in-chief in this trial, being cross-examined by counsel in a subsequent trial without, in the initial trial, knowing of the stance of the defendant on the issue through disclosure of the printout. I accept the submission of Mr Richards, that there is a significant disadvantage to her in any subsequent trial.

14 It was not argued before me as to whether the printout was disclosed in the course of the exchange of materials as prescribed by s.134AB(8) of the Accident Compensation Act 1985. If not then the document is inadmissible in this or any subsequent trial.[9]

[9] S.134AB(11)(a) of the Accident Compensation Act 1985

15        Further, although again not argued, I have a discretion under S135 of the Evidence Act 2008. That section provides:

“The Court may refuse to admit evidence if its probative value is

substantially outweighed by the danger that the evidence might:

(a)	be unfairly prejudicial to a party; or
… .”

16        In my view, the printout and the manner timing of its use in the trial, while probative, would create an unfair prejudice to the plaintiff. That prejudice, for the reasons given, would substantially outweigh the probative value.

17        In Tinworth,[10] Forrest J, in considering an application to amend a pleading, referred to the principles established by Aon. His Honour said:[11]

[10]           supra

[11]           paragraph 27

“In Aon the High Court set out the principles to be applied in an application to amend a pleading at a late stage in a proceeding. It disavowed statements of principle contained in the court’s previous decision in Queensland v JL Holdings Pty Ltd[12] and held as follows:

[12] (1997) 189 CLR 146

(a) Courts must now consider the wider public interest and the efficient use of limited court resources when deciding whether to grant an application to amend a pleading.

(b)	Parties do not have an entitlement to raise any arguable case at any stage of proceedings, subject only to payment of costs.
(c)	Amendments that produce delay impact on the entire court system and affect parties desirous of utilising that particular court system.

In particular the Court said in the joint judgment:[13]

[13]           paragraphs 111-113

‘An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. …

A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings. (Emphasis added)’

Given the importance attached by courts to the decision in JL Holdings, the following statement by French CJ is of significance:[14]

[14]           at paragraph 30

‘It might be thought a truism that ‘case management principles’ should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, J L Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes. (Emphasis added)’

This point was taken up in the joint judgment:[15]

‘What may be just, when amendment is sought, requires account to be taken of other litigants, not just the parties to the proceedings in question. The statement is consistent with what was said in Sali v SPC, which reflected a proper understanding of case management. The statements in J L Holdings do not reflect such an understanding and are not consistent with what was said in Sali v SPC. To say that case management principles should only be applied ‘in extreme circumstances’ to refuse an amendment implies that considerations such as delay and costs can never be as important as the raising of an arguable case; and it denies the wider effects of delay upon others.

An important aspect of the approach taken by the plurality in J L Holdings was that it proceeded upon an assumption that a party should be permitted to amend to raise an arguable issue subject to the payment of costs occasioned by the amendment. So stated it suggests that a party has something approaching a right to an amendment. That is not the case. The ‘right’ spoken of in Cropper v Smith needs to be understood in the context of that case and the Rule, which required amendment to permit the determination of a matter already in issue. It is more accurate to say that parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute. Subject to any rights to amend without leave given to the parties by the rules of court, the question of further amendment of a party’s claim is dependent upon the exercise of the court’s discretionary power.’

In the judgment of Heydon J, in Aon his Honour cited with approval a portion of a judgment of Bryson J which, as his Honour noted, merited preservation from ‘the oblivion of unreported judgments’. In the context of this case, it is worth citing part of that judgment:

‘I do not think that the law requires the discretion to allow amendments to be exercised in entire innocence of understanding the obvious impact of forbearance and liberality on the behaviour of litigants, who have diminished incentive to do their thinking in due time and to tell the court and their opponents their full and true positions. When forbearance and liberality are extended to a delinquent the burden of inconvenience and lost opportunities for preparation tends to fall heavily and without adequate repair on parties who have not been delinquent. A relative disadvantage is imposed on those who proceed methodically and in due time; their interest in procedural justice should claim at least as much consideration as the interests of the applicant for a late amendment who does not have to look far for the creator of his difficulty.’”

[15]           at paragraph 95

18        True it is that both Aon and Tinsworth were concerned with an application to amend pleadings and consequent need for adjournment. Further, the delays caused in the application in Aon were far more substantial. In my view, however, the principles established by these cases are apposite to the present case. To adjourn the proceeding after three days of trial would cause a significant delay in it being refixed for hearing. Enquiries made by my Associate of the Registry of this Court indicate a jury trial of this length could not be listed, even with priority, until August 2011. Further, there would be considerable costs to one or other or both parties, depending upon any costs order I may make. The delay would have a trickledown effect upon other litigants waiting in the Court’s lists. Every day in this Court there are fifteen to twenty cases listed in the Civil and Reserve Lists. Such is the pressure upon the Court there is a considerable backlog of cases awaiting trial. To adjourn this trial would mean there would be a loss of the three days already taken up which could have been well used in determining another or other cases.

19        There are three issues to be considered in determining whether or not to grant the adjournment. The first is allowing the defendant to rely upon a document it deems significant upon the issue of liability. The second is the prejudicial effect upon the plaintiff in a re-trial. The third is the efficient use of the Court’s time and resources.

20        In considering these issues, in my view, the application for adjournment has been brought about by the failure by the defendant to make proper discovery in a timely manner. Accepting the submissions of the defendant that the document is a significant aspect of its case, in my view, the trial should not be adjourned, bearing in mind the prejudice to the plaintiff and the loss of time and resources of the Court.

21        The defendant’s application for an adjournment is refused.

22 In determining as to the appropriate manner in which the trial should proceed, I bear in mind Order 47.02(3) of the County Court Civil Procedure Rules 2008, which states:

“Notwithstanding any signification under paragraph (1), the Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury.”

23        It seems to me the concern of the defendant for use of the printout could be accommodated by the matter proceeding before me as a cause. I would permit the document to be used, and the plaintiff to be cross-examined on its contents, but bear in mind, when assessing the evidence, the circumstances and timing under which the document came before the Court and into evidence.

24        In ‘Williams – Civil Procedure – Victoria’, the following is said in relation to Order 47:[16]

“Rule 47.02(3) confers a general overriding discretion which is exercisable in the interests of the proper and efficient administration of justice. See Wilson v Burridge [1955] VLR 433 at 435. The Rule is remedial and is designed to give the Court procedural flexibility which, in appropriate situations, will produce beneficial consequences: it should be given the full scope which the natural and ordinary meaning of the words supports: Pezzimenti v Seamer (1995) 2 VR 32 at 38 per Brooking J, referring to Patton v Buchanan Borehole Collieries Pty Ltd (1993) 178 CLR 14 at 17.

In State of Victoria v Psaila (BC 9907905) [1999] VSCA 193, notwithstanding that the defendant has signified the desire for trial with a jury in accordance with para 1, the trial judge, over the objection of the defendant, heard and determined the proceeding without a jury and found for the plaintiff. The Court of Appeal held that the judge was in error in dispensing with a jury. It set aside the judgment for the plaintiff and ordered that there be a retrial with a jury.”

[16]           paragraph 47.02.30

25 In my view, the provision of Order 47.02(3) does confer upon the Court a wide discretion as to the circumstances in which a court may dispense with a jury. It is not restricted to cases where the evidence is deemed too complex or lengthy, or the issues of law too numerous that a jury would not be in a position to determine them. Neither mode of trial before a Judge sitting alone, or a judge and jury is inherently more just than the other.[17]

[17]           Gerlach v Clifton Bricks Pty Ltd (2002) 188 ALR 353 at 356

26        In my view, justice could be achieved by the trial continuing as a cause. However, I bear in mind the principle that a party entitled to trial by a jury who has signified that mode of trial is desired, should not be deprived of that entitlement unless good cause is shown. In those circumstances, it seems to me to be appropriate to offer the defendant the option of the matter proceeding before the present jury, but maintaining the sanction in relation to the printout. That is, that the document may not be tendered in evidence, nor its contents used in the course of evidence. Alternatively, the defendant may elect for the proceeding to be continued as a cause before me, allowing the document to be tendered into evidence and use to be made of its content. In those circumstances, I would bear in mind the circumstances and timing under which the document came to the notice of the plaintiff, and before the Court.

27        In making this ruling, I bear in mind the provisions of the Civil Procedure Act 2010. The Act does not take effect until 1 January 2011. Nonetheless, it is the clear intention of Parliament to provide courts with wide powers in relation to the efficient management and dispatch of civil proceedings. In the event that this proceeding was to be adjourned to another date, after 1 January 2011, it would be subject to the provisions of this Act. In particular, sections 55 and 56 refer to discovery. Section 56 provides wide sanctions to a court, where appropriate, if there has been a failure to comply with discovery obligations. Those sanctions include:

“(d)	preventing a party from taking any step in the civil proceedings;
(e)	prohibiting or limiting the use of documents in evidence;

. . .

(j) dismissing any part of the claim or defence of a party who is responsible for any conduct referred to in subsection (1) [a failure to comply with discovery obligations].”

28        It is the clear intention of this proposed legislation that the courts have wide powers in relation to the management of civil proceedings, particularly with respect to discovery.

29        As stated, the application by the defendant for an adjournment is refused. I will give the parties time to consider the options as are proposed in this Ruling.

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