Crago, Peter v Multiquip Pty Ltd

[1996] FCA 1175

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA  )
NEW SOUTH WALES DISTRICT REGISTRY  )
GENERAL DIVISION  )            No. NG 655 of 1994

BETWEEN:PETER CRAGO and ANOR

Applicant

AND:MULTIQUIP PTY LIMITED and ANOR

Respondent

CORAM:Lehane J

PLACE:Sydney

DATE:2 December 1996

EXTEMPORE REASONS FOR JUDGMENT

LEHANE J:  The motion before me is a motion of the applicants seeking leave to adduce evidence in these proceedings from two experts, Dr John Blackmore and Dr Douglas Black.

The general nature of the evidence is it would go to the efficacy for their intended purpose of the machines with which these proceedings are concerned.  The evidence of the solicitor for the applicants, which is unchallenged, is to the effect that the evidence first came to the applicants unsolicited on 11 October this year.  On 24 October, having obtained confirmation that the evidence would be available for use in these proceedings, the applicant informed the first respondent of it and gave notice that the applicants would seek to make use of it at the trial.  On 27 November 1996, the first respondent notified the applicants that it was not prepared to consent to the calling of the evidence of Dr Blackmore or of Dr Black.
The applicants have argued that the evidence which they seek to adduce is clearly relevant to substantial issues in contention in these proceedings; that it is evidence which was not available when the trial was set down for hearing; that I have (as is clearly the case) a discretion to permit the evidence to be given; and that,applying well established principles, should hold that in the circumstances justice requires that I permit the evidence to be called.

The first respondent has submitted that this is a case where I should exercise my discretion to exclude the evidence:  counsel argued that I should apply statements such as those of the majority of the Full Court in Bowmanite Pty Limited v Slatex Corporation Australia (1991) 32 FCR 379 to the effect that in this leisured age great weight should be accorded to the public interest in the efficient use of the courts and that I should not take a step which might require the first respondent to seek to call further evidence of its own in response to the additional evidence which the applicants seek leave to call and this lead to a substantial prolongation of the trial. The first respondent also reminds me that at an earlier directions hearing Sackville J has already considered whether the applicants should be permitted to adduce expert evidence from a Mr Finger and that his Honour made a direction that Mr Finger's evidence be limited to matters of fact.

In my view the material which the applicants seek to adduce is plainly relevant to the efficacy or otherwise of the machinery with which the case is concerned.  So much indeed is not in contest. 

Neither, apparently, is it in contest that evidence of the precise kind which particularly Dr Blackmore would give has not previously been the subject of affidavit evidence filed on behalf of the applicants; particularly, it appears, though the circumstances may be disputed to some extent, that no expert to be called by the applicants, other than Dr Blackmore, has been in a position fully to examine and test unmodified machines of the type with which this case is concerned.

It is difficult for me to form at this stage a clear view as to whether the case is in any event likely to be completed within the time allotted to it or what, if any, difference, the admission of this evidence is likely to make:  but in my view, much as one may regret the additional time and cost involved in introducing further evidence at this stage, this is evidence which I ought to permit the applicants to lead.  I propose therefore to allow the applicants to call both Dr Blackmore and Dr Black.  I trust that to the extent possible the evidence will be taken in a way which will minimise the degree of prolongation and disruption to the trial which its admission at this stage may cause.  In saying that I recognise of course that it is entirely a matter for the first respondent to determine how it proposes to deal with the circumstances that arise by reason of the admission of the evidence.

I certify that this and the preceding 2 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane.

Associate:

Dated:  2 December 1996

Heard:  2 December 1996

Place:  Sydney

Decision:  2 December 1996

Appearances: Mr V R Gray of counsel instructed by Cashman & Partners appeared for the applicant.

Mr R J Colquhoun of counsel instructed by Joseph M Blanco & Associates appeared for the respondent.