Corrigan v Coles Supermarkets Australia Ltd

District Court

New South Wales

Medium Neutral Citation:	Corrigan v Coles Supermarkets Australia Ltd [2017] NSWDC 95
Hearing dates:	1 May 2017
Date of orders:	01 May 2017
Decision date:	01 May 2017
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Grant leave to the plaintiff to reopen his case to call Muriel Corrigan. (2)   Reserve any question of the costs of the application.
Catchwords:	PRACTICE AND PROCEDURE – application to reopen following conclusion of defendant’s submissions – witness ill during trial – evidence as to damages
Legislation Cited:	Civil Procedure Act 2005, s 56
Cases Cited:	Matthews v SPI Electricity Pty Ltd (Ruling No 28) [2013] VSC 523 Smith v New South Wales Bar Association (1992) 176 CLR 256
Category:	Principal judgment
Parties:	Michael James Corrigan (plaintiff) Coles Supermarkets Australia Ltd (defendant)
Representation:	Counsel: Mr S Roulstone (plaintiff) Mr D Priestley (defendant)   Solicitors: LHD Lawyers (plaintiff) McCulloch and Buggy (defendant)
File Number(s):	2016/60944
Publication restriction:	None

Judgment

1. This matter comes before me on the fifth day of trial during the plaintiff's closing submissions. The defendant, Coles, has concluded its closing submissions. The plaintiff, Michael Corrigan, makes an application to reopen his case to call his mother, Muriel Corrigan, to give evidence concerning Mr Corrigan’s need for care and level of disability.

2. The short answer as to why Mrs Corrigan was not called earlier is her recent ill-health. The evidence on the application did not reveal why no earlier attempt was made to put Mrs Corrigan's evidence before the Court in another form, for example, by way of affidavit or by video link. There was also no evidence from Mr Corrigan to deny an inference that Mrs Corrigan had been pressed over the weekend to give evidence because of the submissions made by Coles about the lack of corroboration of Mr Corrigan’s evidence concerning his need for care and his level of disability.

3. The anticipated evidence of Mrs Corrigan is accepted by Coles to be relevant. As Coles called no direct evidence on damages, it seems unlikely that Coles could have maintained any objection to Mrs Corrigan’s evidence had she been called prior to Coles’ submissions, a matter Coles conceded.

4. Bearing in mind decisions such as Smith v New South Wales Bar Association (1992) 176 CLR 256 and Matthews v SPI Electricity Pty Ltd (Ruling No 28) [2013] VSC 523, the issue of a grant of leave to reopen at this stage of the proceedings appears to involve a comparison between the prejudice to Coles by this evidence coming after, being informed by, and probably requiring a change in, Coles’ submissions about the evidence concerning Mr Corrigan’s need for care and level of disability, as against the interests of justice in the Court having before it all probative evidence on an issue of importance.

5. In my view, the prejudice that is occasioned to Coles can largely be cured by it having another opportunity to make submissions and some time to consider what, if any, changes need to be…