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Craig v Johnson (No 6)

Craig v Johnson (No 6)

Case [2021] NSWSC 833 8 July 2021

Admissibility of Evidence

Interlocutory Orders

Prejudice to Defendants

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Craig v Johnson (No 6) [2021] NSWSC 833
Hearing dates: 30 June and 1 July 2021
Date of orders: 1 July 2021
Decision date: 08 July 2021
Jurisdiction: Common Law
Before: Lonergan J
Decision:
I refuse leave to rely upon the affidavit of Mr Dowart sworn 28 June 2021.

Catchwords:
EVIDENCE – Affidavit evidence – Rejection of evidence – Seeking to introduce new evidence whilst trial underway
CIVIL PROCEDURE – Hearings – Adjournments – Relevant factors – Where case had been listed since March 2020 – Where proceedings were filed in 2016 - Where application made after final hearing had commenced – Prejudice to defendants – Adjournment refused

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 57, 58 and 59

Cases Cited:
Aon Risk Services Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Loretta Craig & Ors v Anthony Johnson & Ors [2018] NSWSC 1539
Loretta Craig & Ors v Anthony Johnson & Ors [2020] NSWSC 423
Loretta Craig & Ors v Anthony Johnson & Ors [2020] NSWSC 430
Craig v Johnson [2020] NSWCA 278
Craig v Johnson (No.4) [2021] NSWSC 81
Frugtniet v State Bank of New South Wales [1999] NSWCA 458
Sali v SPC Ltd 116 ALR 625; 67 ALJR 841; [1993] HCA 47

Category: Procedural rulings
Parties: Lorretta Kistmah Craig & Ors (Plaintiffs)
Anthony Francis Johnson & Ors (Defendants)
Representation:
Counsel:
I Archibald (Plaintiffs)
D Lloyd SC / A Avery-Williams (Defendants)
Solicitors:
Self-Represented (Plaintiffs)
Moray & Agnew (Defendants)

File Number(s): 2016/328254
Publication restriction: Nil

Judgment

These proceedings, commenced in November 2016, concern allegations of negligence on the part of the defendants who are partners in a firm of solicitors, Johnson Winter Slattery (JWS). The allegations arise out of litigation conducted for the plaintiffs by JWS in the Commercial Division of this Court in 2011 and 2012 (the Commercial Proceedings). In issue was the rights to and ownership of printing technology called the Memjet technology. Those proceedings ended with a judgment against the plaintiffs and an order that they pay the defendants’ costs. The plaintiffs allege that JWS failed to give them proper advice in relation to an offer of settlement made by the defendants in the Commercial Proceedings and as a result the plaintiffs lost the opportunity to settle the case on more favourable terms than those that ensued.
In May 2020 these proceedings were listed for a five-week hearing to commence on 21 June 2021. On day eight of the days set aside for trial, the plaintiffs seek leave to rely on further affidavit evidence of Mr Dowart.
This application has been made against a background of many failures by the plaintiffs to comply with timetables for service of evidence, a whole scale repleading of the case in December 2018 and a number of failed applications and failed attempts to obtain leave to appeal those failed applications. There have been 37 directions hearings and other procedural and interlocutory hearings between…

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 Craig v Johnson (No 6)

Details

AGLC: Craig v Johnson (No 6) [2021] NSWSC 833
Case: [2021] NSWSC 833
Decision Date: 08 July 2021

CaseChat Overview and Summary

The case of Craig v Johnson (No 6) involved the plaintiff seeking to introduce new evidence during the course of a trial which had been ongoing since March 2020. The proceedings were initially filed in 2016. The plaintiff sought to adduce new affidavit evidence that had not been previously disclosed or referred to in any earlier hearings. This application was made after the final hearing had already commenced, which raised concerns about the potential prejudice to the defendants if the trial were to be further delayed. The court had to determine whether the introduction of this new evidence would be permissible and whether the delay caused by such an introduction would unfairly prejudice the defendants.

The central legal issues before the court were whether the plaintiff was entitled to introduce new evidence during the trial and, if so, whether the court should grant an adjournment to allow for the proper consideration of this evidence. The court examined the circumstances under which new evidence might be introduced, considering the stage of the proceedings and the potential for prejudice to the defendants. The court also needed to assess whether the factors justifying an adjournment, such as the need to ensure a fair trial, outweighed the prejudice to the defendants that might result from further delays.

The court concluded that the plaintiff was not entitled to introduce new evidence during the trial. The court noted that the proceedings had been ongoing since March 2020 and that the application to introduce new evidence was made only after the final hearing had begun. The court found that the plaintiff had ample opportunity to disclose all relevant evidence prior to the start of the trial. Moreover, the court determined that allowing the introduction of new evidence at this stage would cause significant prejudice to the defendants, who had already prepared for the trial and were ready to proceed. Consequently, the application for an adjournment was refused.

The court's final orders were that the plaintiff's application to introduce new evidence during the trial was dismissed, and the application for an adjournment was refused. The trial proceeded without the introduction of the new evidence, and the court emphasised the importance of parties disclosing all relevant evidence at the earliest opportunity to avoid unnecessary delays and ensure a fair trial for all parties involved.

Orders