CVETKOVIC and ANOR v Parexel International Pty Limited and ANOR

[2007] NSWSC 540

CITATION:	CVETKOVIC & ANOR v PAREXEL INTERNATIONAL PTY LIMITED & ANOR [2007] NSWSC 540
HEARING DATE(S):	30.1.06 to 3.2.06; 24.3.06; 21.8.06 to 25.8.06; 22.9.06; 26.9.06; 6.10.06
JUDGMENT DATE :	30 May 2007
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	In relation to the notice of motion dated 18 September 2006 filed by the plaintiff I make the following orders and directions: (a) The application to “re-open” to set aside or vary the judgment entered on 24 August 2006 as sought in paragraph 1(a) of the notice of motion is dismissed. (b) A date for the plaintiffs to lodge their final written submissions be determined at the conclusion of evidence. (c) The application to adjourn proceedings for nine months to be stood over for further consideration at the conclusion of the evidence. (d) The application for further discovery from the defendants is refused. (e) The application that the plaintiffs be permitted to file further affidavits and call additional witnesses be stood over to the directions hearing referred to below. (f) The application to re-open the plaintiffs’ case for the purpose of recalling Dr Peterson for cross-examination is granted, subject to any conditions and directions which the Court may determine in respect of such cross-examination. (g) Costs of the application be costs in the proceedings.; I re-list the proceedings for mention and directions before me at 9.30 am on Tuesday 5 June 2007
CATCHWORDS:	PROCEDURE – Supreme Court procedure – New South Wales – Motions – Plaintiffs seek leave to re-open matter – Application to set aside judgment on application to amend pleadings to include estoppel claim – Application for further discovery – Application for leave to further cross-examine witness notwithstanding cross-examining party’s voluntary withdrawal from the hearing – Relevant principles and discretionary considerations - CASE MANAGEMENT – Unrepresented litigants – Limit on cross-examination of witness and requirement of cross-examining party’s statement of topics
LEGISLATION CITED:	Trade Practices Act 1974 (Cth) Civil Procedure Act (NSW) 2005
CASES CITED:	Maritime Union of Australia v Geraldton Port Authority (2001) 111 FCR 434 Wentworth v Woollahra Municipal Council (1981-1982) 149 CLR 672 Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300 Reisner v Bratt [2004] NSWCA 22 King v The Queen [2003] HCA 4
PARTIES:	CVETKOVIC, Dragan & ANOR v PAREXEL INTERNATIONAL PTY LIMITED & ANOR
FILE NUMBER(S):	SC No 20144 of 2003
COUNSEL:	Plaintiffs: In person 1st Defendant: R J Bromwich 2nd Defendant: P J Newall
SOLICITORS:	Plaintiffs: In person 1st Defendant: Baker & McKenzie 2nd Defendant: Middletons

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL, J.

WEDNESDAY 30 MAY 2007

No. 20144 of 2003

DRAGAN CVETKOVIC & ANOR v. PAREXEL INTERNATIONAL PTY. LIMITED & ANOR

JUDGMENT
(On application to re-open, set aside judgment on application to amend pleadings and further cross-examine and other matters)
`

1 HIS HONOUR: In these proceedings, the two plaintiffs appear unrepresented. They seek damages from the first and second defendant arising out of the termination of employment contracts. The hearing of these proceedings commenced before me on 30 January 2006 and has continued thereafter on 31 January, 1 February, 2 February, 3 February, 3 March, 21, 22, 23, 24 and 25 August, 26 September and 6 October 2006.

2 The plaintiffs, during the course of the hearing, filed in Court a notice of motion dated 18 September 2006 and an affidavit sworn on 18 September 2006 in support of the motion. The plaintiffs sought the following orders:-

1. (a) to set aside or vary judgment of Justice Hall of 24 August 2006 and allow pleadings to include doctrine of Estoppel in the amended Statement of Claim of 01 August 2006;

(c) to re-open the case;
(d) adjourn proceedings for 9 months;

(e) plaintiffs to adduce further evidence from Defendants by discovery or notice to produce;

(g) to re-call Mrs Marisa Collier Peterson for cross-examination and allow three full court days without requirement Plaintiffs to list topics on which they would cross-examine;

(h) costs, or in alternative cost to be cost in the proceedings.”

3 Mr P J Newall, counsel acting on behalf of the second defendant, formally objected to the affidavit being sworn by two persons, although recognising that the Court may admit it over objection, so that the matter sought to be raised can be dealt with. Mr R J Bromwich, counsel acting on behalf of the first defendant, noted that there were some assertions of fact which he contended were not in accordance with what actually occurred at the trial. He provided, by way of example, the question of the duration allowed for the cross-examination of Dr Peterson and that no final conclusion or determination was in fact made concerning the time limit placed on cross-examination of that witness.

4 In the circumstances in which the plaintiffs were not represented and the application was interlocutory in nature, they were allowed to proceed with the application on the basis of the “joint” affidavit, although irregular in form. In doing so, I noted that in many of the paragraphs, assertions or submissions were made and that they would be treated as such.

5 I have reproduced the orders strictly in the terms sought in the notice of motion, even though there are some imperfections in expression. The nature of the orders sought, however, are sufficiently clear from the terms of the motion.

6 Before turning to the affidavit of the plaintiffs, it is necessary to refer to aspects of the history of the proceedings.

Proceedings for termination of employment contract

7 The proceedings were originally commenced by statement of claim filed in this Court on 6 June 2003 in which damages are claimed against the first and second defendants. The first plaintiff was employed by the first defendant for a short period in June 1998 and resigned in circumstances disclosed by the evidence in the proceedings. The first plaintiff was also employed for a short time in November and December 1998 by the second defendant until he terminated the contract. Thereafter, he, for a short period, worked for the second defendant in 1999 on a contract basis.

8 The second plaintiff was employed by the second defendant from 29 April 1998 until her resignation on 17 September 1999 in circumstances revealed in the evidence.

9 The plaintiff later sought and obtained leave to proceed upon an amended statement of claim dated 28 July 2006. In short form, both plaintiffs seek to claim damages from the first and second defendants, such claims being framed in terms of alleged breach of contract, alleged tortious conduct (the tort of deceit) and alleged false representations and misleading and deceptive conduct.

(a) The estoppel question

10 Paragraphs 2.47 to 2.54 of the amended statement of claim, related to a claim based upon the doctrine of estoppel against the first defendant. In the relevant paragraphs various matters were pleaded under the headings “assumption”, “inducement”, “reliance”, “knowledge” and “detriment”. In paragraph 2.54, it is contended that the “plaintiffs would not have acted the same without the inducement from Parexel. Plaintiffs’ detriment is material and significant”.

11 In relation to the second defendant, the plaintiffs relied upon the doctrine of estoppel in paragraphs 2.137 to 2.145 and again pleaded various matters in support of the application of that doctrine as an additional cause of action for the claim made.

12 On 24 August 2006, on application by the plaintiffs to further amend the amended statement of claim, I delivered judgment permitting certain amendments but refused leave to amend to raise the proposed cause of action based on estoppel. In that judgment (paragraph [37]) the following is recorded:-

“The proposed amendment by the first plaintiff seeking to rely upon the doctrine of estoppel is, in my respectful submission, misconceived. I am of the opinion that leave should not be granted to permit the asserted causes of action based on the principles of estoppel. I will seek to explain the basis for this conclusion.”

13 The order set out in paragraph [48(b)] of that judgment was that the application to amend the amended statement of claim to raise claims based upon estoppel principles was dismissed.

(b) The cross-examination of Dr Peterson

14 On 24 August 2006, the plaintiffs stated that they would require three days to cross-examine Dr Peterson (transcript, p.644). On that occasion, in relation to the programme for final submissions, the first plaintiff indicated that he did not wish that he or the second plaintiff be required to lodge final written submissions before 1 November 2006.

15 On 24 August 2006, the second defendant called Dr Peterson. Her evidence commenced at transcript, p.655 and cross-examination commenced at transcript, p.657 and continued to transcript, p.713.

16 Mr Bromwich of counsel for the first defendant raised (at transcript, p.714) the question as to the estimated length of the further cross-examination of Dr Peterson in light of the nature of the cross-examination which he described as “a complete and utter waste of time” (transcript, p.714). He requested that all things be done to limit the cross-examination to one further day. In an attempt to introduce some structure into the cross-examination, I raised at that point the prospect of the plaintiffs providing a list of matters for the further cross-examination of Dr Peterson on the basis that such list would only be made available to the Court and not to the defendants’ legal representatives. That course was not opposed by the defendants. The transcript at p.715 records:-

“HIS HONOUR: I must say I wouldn’t require the plaintiffs to do that, to hand up their proposed list of questions. All I’m seeking to do is to see if there’s a way of trying to structure the cross-examination into topic areas so at the least I know what is coming and to try and assist the plaintiffs, if I can, to the extent which I am able to, in focusing on the issues that are relevant to their case and that indirectly may or may not help their case.”

17 The first plaintiff indicated that he did not have time to prepare a list of topic areas for cross-examination. The transcript then records (at p.717):-

“HIS HONOUR: I do request you do produce a list of the topic areas for cross-examination, notwithstanding the demands on your time. It is my intention to try and complete the evidence of this witness tomorrow, if at all possible.”

18 By way of background to the present application, I record here that the plaintiffs had earlier sought that I disqualify myself from further hearing the proceedings.

19 On 25 August 2006, the first plaintiff produced a document signed by both plaintiffs dated that day and marked MFI 10. In it the question of apprehended bias was raised. Earlier, on 22 August 2006, I had refused to disqualify myself on the ground of bias as asserted by the plaintiffs (transcript, p.723).

20 In the judgment given in relation to that ruling on 25 August 2006, the allegations of bias as particularised in paragraph 12 of MFI 7 were recorded. In the judgment of 25 August 2006, I referred to my earlier ruling in which I determined that the allegations of or contentions of bias, actual or apprehended, were not substantiated.

21 In the course of determining the application for disqualification, I stated:-

“12. If I considered that there was a real issue of bias being raised that requires determination, I would have no hesitation whatsoever in interrupting the proceedings to have that issue fully heard and determined, given the serious nature of the allegations made in that respect.
13. The plaintiffs have not, in my mind, identified any factual matter that has occurred since the judgment I gave on 22 August 2006 that would substantiate the application of bias or of procedural fairness and I do not consider that the issues that have been identified by the first plaintiff and supported by the second plaintiff provide a proper basis that the Court should intervene and interrupt the proceedings. ”

22 The application made in MFI 10 was accordingly declined. I then refused the plaintiffs’ application to stand the proceedings over to another date.

(c) The application to stand the proceedings over – the plaintiffs withdraw from the hearing

23 Soon after, on 25 August 2006, the plaintiffs recorded their disagreement with the decision made not to stand the proceedings over. The first plaintiff (at transcript p.724) indicated that he wished an adjournment in order to speak to his wife. Upon being told that he would have that opportunity at the morning tea adjournment, the first plaintiff advised “I can only withdraw from these proceedings in protest”. I declined to hear further argument in relation to MFI 10, having ruled upon the application to which that document related. Mr Bromwich of counsel recorded that, should the plaintiffs withdraw from the proceedings, then he intended to move immediately to closing submissions and that “… they should not think walking out (sic) door some adjournment by default” (transcript, p.725). The plaintiffs shortly thereafter withdrew from the hearing.

24 The witness, Dr Peterson, was excused from further attendance and I proceeded to hear submissions from counsel for the first and second defendants.

(d) Application by the plaintiffs

25 On 6 October 2006, the first plaintiff appeared and stated that “by notice of motion we seek various orders …” (transcript, 6 October 2006, p.1). Reliance was placed upon an affidavit sworn by the plaintiffs on 18 September 2006 in support of a notice of motion bearing the same date. The plaintiffs relied upon written submissions dated 3 October 2006.

26 I will seek to address the issues raised in the written submissions. In relation to the matter entitled “why did plaintiffs withdraw from the trial?”, the plaintiffs recorded (paragraph [4]) a number of matters which asserted that I, as trial judge, had been “prejudiced” by reason of the fact that the “Plaintiffs are self-represented parties” and asserting, inter alia, that as trial judge I “did not know the case”, lacked “experience with trials related to tort of deceit, negligence, contravention of ss.51A, 51AA, 52 and 53B of the Trade Practices Act 1974 (Cth) … and breach of contract …”. Further contentions were made that the judgment of 24 August 2006 was made “irregularly” and “against good faith by refusing to include pleadings related to Estoppel in the statement of claim … and overall”. It was also asserted that “numerous errors in the conduct of the trial” had occurred.

27 The plaintiff set out a number of matters under the heading “Background”. Some of these referred to matters such as the plaintiffs’ “physical and mental health”, their employment, their “mental and financial struggle”. References were also made to the stress on the plaintiffs in conducting the litigation. There are several references to anxiety experienced by the plaintiffs during the course of the conduct of the proceedings and “pressure” experienced by them.

28 In oral submissions, the first plaintiff submitted (transcript, 6 October 2006 at p.9):-

“So we left because we felt an undue pressure from both defendants to complete the case in a jiffy and we have addressed this clearly in our submissions in para. 84.”

29 The plaintiffs also referred to indications that I had given that they would not be permitted, after the first day of cross-examination of Dr Peterson a further three days to cross-examine her and the difficulty they claimed in identifying the subject areas for the purposes of structuring the cross-examination.

30 A number of criticisms are set out in the written submissions as to rulings I made and the statement of belief that I, as trial judge, “in front of Mrs. Peterson, in relation to them was not fair and impartial, showed advocacy and oppressiveness, and was obstructive for plaintiffs’ attempts to adduce evidences from the witness. Plaintiffs were embarrassed and humiliated because of Justice Hall’s attitude” (paragraph [28]).

31 In the written submissions, a number of contentions and matters are raised in respect of the ruling made on 24 August 2006, whereby the plaintiffs were not permitted to raise, as an additional cause of action, estoppel as a cause of action. It is unnecessary to set out here the full detail of the argument presented. They are recorded in paragraphs [44] to [56] of the plaintiffs’ written submissions in support of the notice of motion of 6 October 2006.

32 In essence, the submissions are directed to establishing that the ruling in respect of the estoppel issue was incorrect and that the plaintiffs had been denied natural justice.

33 In relation to the order made on 25 August 2006 requiring the plaintiffs to lodge written submissions by 6 October 2006, it is asserted that the ruling was in error by not permitting the proceedings to be adjourned.

34 In relation to the issue “re-opening of the case” (paragraphs [61] and [66] of the plaintiffs’ written submissions), a number of references are made to provisions in the Uniform Civil Procedure Rules as to the power of the Court to set aside or vary judgments or orders, power to recall a witness to give evidence and power to order discovery and inspection of documents.

35 In relation to the matter of “other witnesses, document discovery and adjournments” (paragraphs [67] to [71] of the plaintiffs’ written submissions) complaint is made to the ruling against the admission of what is described as “the self-administered psychological test and its results”, criticism of the evidence of Dr Peterson and the power of the Court to adjourn a hearing.

36 In relation to the matter of “case management: time limit on cross-examination and statements of topics” (paragraphs [72] to [80] of the plaintiffs written submissions), reliance is placed upon the High Court’s judgment in The State of Queensland v J L Holdings Pty. Limited (1996-1997) 189 CLR 146 and an attack is made upon witnesses called by the defendants as having given evidence “deliberately or recklessly given false or misleading evidence …”. Objection is taken to the imposition of any time limit upon the cross-examination of witnesses.

37 The plaintiffs provided a number of “reasons for leave” (paragraphs [81] to [86]) and they assert embarrassment by restrictions being placed on the cross-examination of Dr Peterson, the fact that they were “mentally exhausted, needed legal advice and sought leave to adjourn the hearing” and that the defendants’ counsel took advantage of “the circumstances”.

38 The plaintiffs assert that they were entitled to “three full days to cross-examination Mrs Peterson, without obligation to list topic areas on which she would be cross-examined …”. In this respect, it is asserted that Dr Peterson was a “key witness” and that her evidence was “relevant and important”.

39 The final matters for submission relate to the question of “further evidence by discovery, subpoena or notice to produce and expert opinion” and “need to adjourn the proceedings and costs”.

40 In paragraph [98] of the submissions, the plaintiffs sought the orders which I have set out in paragraph [2]:-

The defendants’ submissions in reply

41 Mr Bromwich, in his submissions, emphasised the following matters:-

(a) On the fifth day of the hearing, a question was raised as to how much time was required to take the evidence of Dr Peterson. Mr Bromwich recorded that he stated that her evidence was expected to take a day, although was not sure how much time would be required. It is recorded that the first plaintiff did not take any issue with the statement that the Dr Peterson would be required for a day. In his written submissions in reply, the first plaintiff contends that the statement was only a “preliminary estimate” (paragraph 13(a)).

(b) In relation to the question of re-opening judgments, reliance was placed upon the judgment of the Federal Court in Maritime Union of Australia v Geraldton Port Authority (2001) 111 FCR 434 at 439, [19] and [20].

(c) The first defendant relied upon written submissions made in relation to the application for disqualification, rejecting the plaintiff’s criticisms of the conduct of the trial.

(d) In relation to the plaintiffs withdrawing from the hearing and not returning on 25 August 2006, it was contended that the plaintiffs were given ample warning as to what would happen if they did withdraw.

(e) The reasons provided by the plaintiffs for having withdrawn on that date were stated to be a misleading reconstruction. In this respect, it was submitted that the reconstruction constituted “… to excuse what is we say stubborn and unreasonable behaviour. What was being made clear by the Court is they were not going to be given a free hand to conduct the hearing as they saw fit, irrespective of time or relevance, not being a right which is given to any party with or without legal representation” (transcript 6 October 2006, p.5).

(f) The request to provide a list of topics for cross-examination of Dr Peterson was not by way of final decision but was a request by the Court for a list of topics in order that the Court could determine whether a topic area was going to a matter of relevance.

(g) Whilst a concluded position had not been reached on the request for topic areas to be identified, it was submitted that the plaintiffs’ submissions criticising the procedure as one which the plaintiffs contended were “… being asked to lay bare their cross-examination” , Mr Bromwich contended “simply isn’t the case” (transcript 6 October 2006, p.5).

(h) The application to set aside the judgment in relation to the amendment of the statement of claim to include estoppel did not identify any error in the judgment. It was fundamental that for any such application to be heard, let alone succeed, there needed to be an identification of error and that “… really in a global way none of the submissions on this topic by the plaintiffs are of any real assistance to the Court because they don’t provide that focus” (transcript 6 October 2006, p.6).

(i) As to the application for an extension of time to provide written submissions, it was stated that it was made clear by the Court on 26 September 2006 that more time would be allowed. The submissions, in effect, ignore what was stated by the Court on that topic. In any event, there was no indication as to how much more time the plaintiffs contended was required. On the basis of what had been communicated by the first plaintiff to counsel for the first defendant, it was stated that a great deal more time would not be required in any event (transcript 6 October 2006, p.6).

(j) The first defendant left it open to the Court to determine how much more time would be allowed.

42 Mr Newall of counsel submitted, on behalf of the second defendant, that none of the orders sought in the notice of motion should be made and that the motion should be dismissed.

43 Insofar as the submissions in support of the notice of motion referred to a “lack of good faith”, it was contended that the plaintiffs’ assertion was unsubstantiated by reference to any part of the proceedings.

44 Mr Newall further contended that if the interlocutory judgments made in the proceedings were to be challenged any such challenge was not one to be made at first instance and nor was it a basis for any of the orders sought in the notice of motion.

45 In respect of the orders made, he submitted, in any event:-

• That in respect of the interlocutory judgment made on 24 August 2006, an order setting aside or varying the judgment should not be granted as no error in the judgment had been identified and no basis for any error was advanced in the submissions.

• On merit, the judgment would not, in any event, be altered and, even if it were, the Court as presently constituted is not the place for any order to be made in that respect.

• As to the timetable for submissions, it was submitted that the timetable set accorded with what the plaintiff said they could undertake as recorded in MFI 7 and MFI 8. If more time was sought, then that was a matter for the Court.

• In relation to the application to re-open, the order was strongly opposed by the second defendant.

46 Mr Newall stated that the timetable for the case was originally expressly agreed as a five day case before the list judge at the outset and, in the event, the proceedings had taken double the time originally set and it was contended that that time was ample for the case.

47 It was also contended that the plaintiffs did not heed warnings given throughout the case for the need for efficiency and, instead, the plaintiffs pursued irrelevant matters.

48 It was contended that the power to re-open was one to be exercised with great caution. Reliance was placed upon what the High Court said in Wentworth v Woollahra Municipal Council (1981-1982) 149 CLR 672.

Plaintiffs’ submissions in reply

49 On 13 October 2006, the plaintiffs forwarded to my associate a copy of “response to defendants’ written submissions” dated 13 October 2006 by way of response to the written submissions made on behalf of the defendants.

50 The submissions by way of reply on behalf of the defendants take issue with a number of statements and submissions made by counsel for each of the defendants and raise a number of matters concerning the application to re-open to set aside the judgment on the proposed amendment to include estoppel. The defendants also addressed the question of any waiver by the plaintiffs in withdrawing from the hearing. A number of submissions were also made asserting misapprehension of the facts and the relevant law in my conduct of the hearing and rulings made. An assertion was also made that the defendants “… put undue pressure, both on Plaintiffs and the Court …” by requiring that “all things be done to limit the cross-examination to tomorrow …” and for pressing that cross-examination continue the following day without further delay or an adjournment. A general contention is made that the defendants in this respect did not act appropriately or properly in the circumstances.

Relevant principles – setting aside judgments and orders

51 The Uniform Civil Procedure Rules 2005, Part 36 Rule 15, provides for a general power in the Court to set aside a judgment or order. The relevant provision is in the following terms:-

“36.15 General power to set aside judgment or order
(1) A judgment or order of the Court in any proceedings may, on sufficient cause being shown, be set aside by order of the Court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.
(2) A judgment or order of the Court in any proceedings may be set aside by order of the Court if the parties to the proceedings consent.”

52 The Court has power pursuant to Part 36 Rule 16 of the Uniform Civil Procedure Rules 2005 to set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

53 In summary, the Uniform Civil Procedure Rules that provide power in the Court to vary or set aside judgments or orders confer a discretionary power but one that is to be exercised subject to limitations expressed and the principles discussed below. A central matter is the limitation imposed by the public interest in maintaining the finality of litigation which, in itself, indicates that it is a power to be exercised with caution.

54 Counsel for the first and second defendants referred to the authorities to which I have made reference. Those authorities establish the following principles:-

(a) In general terms, the power to re-open to enable a matter that had previously been determined in proceedings should be exercised with great caution. Whilst the High Court in Wentworth (supra) at 684 was dealing with the question of a re-hearing in the High Court, nonetheless, the general principle, that is to say, the need for finality of litigation, is relevant and underpins the proposition that the power to re-open an issue already determined should be exercised with caution.

(b) In relation to judgments or orders which have not been formally entered, the Court retains a power to vary or set aside judgments or orders.

(c) In the exercise of the power to set aside judgments or orders, Nicholson J in Maritime Union of Australia v Geraldton (supra) stated that:-

• A relevant consideration in the exercise of the power is the public interest in maintaining finality of litigation.
• Accordingly, it is a matter for the exercise of judicial discretion, having regard to the appropriate circumstances, as to whether the power in the rules should be exercised.

(d) In Maritime Union of Australia (supra), the following propositions were identified:-

(i) Generally speaking, the discretion to set aside a judgment or order will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard.
(ii) The power will only be exercised if there is “some matter calling for review” .

(iii) There may be more or less reluctance to exercise the power, depending on whether there is an avenue of appeal.

(iv) The power will not ordinarily be exercised “to permit a general re-opening”.

(v) It is necessary for the Court to consider whether it has proceeded on a misapprehension as to the facts or the law: what must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law. Misapprehension cannot be attributed solely to neglect or default of the party seeking the re-hearing.

(vi) The power is not to be exercised for the purpose of re-agitating arguments already considered by the Court.

(vii) Nor is it to be exercised simply because the party seeking a re-hearing has failed to present the argument in all its aspects or as well as it might have been put.

(viii) It will be relevant whether the decision has been given in ignorance or forgetfulness of some statutory provision or of some critical fact.

(viii) What is at issue is the interests of justice and whether they require a judgment to be set aside.

(x) It will be appropriate to consider whether the review of the contemplated order is necessary so that the orders may deal more adequately with the matter as litigated by the parties before the Court.

55 In Autodesk Inc v Dyason(No. 2) (1993) 176 CLR 300, Dawson J at 317, speaking of the High Court’s power to vacate its orders said:-

“While the Court has jurisdiction to entertain an application to vacate orders which it has made, at all events before those orders have been perfected by the entry of judgment …, it is a jurisdiction to be exercised cautiously, bearing in mind the public interest in the finality of litigation.”

56 The principles establish that, generally speaking, the power to set aside judgments and orders will not be exercised to permit a general re-opening of the case and furthermore will not be exercised in favour of an applicant who was at fault in failing to raise a matter in issue at an earlier stage.

57 As the judgment in Autodesk Inc v Dyason (No. 2) (supra) establishes, a review or rehearing of an issue is an exceptional step, given the public interest in the finality of litigation. It is a step that a court will be reluctant to take unless it has good reason to consider its earlier judgment. Good reason in these terms as noted above may include a misapprehension as to the facts or the law. As the High Court emphasised in that case, it is a jurisdiction that must not be exercised for the purpose of re-agitating arguments already considered by the Court. This, I consider, is particularly applicable to the order sought by the plaintiffs to set aside the judgment precluding the amendment to raise estoppel as a cause of action.

58 The plaintiffs have not, in this application, sought to identify a matter overlooked or not taken into account and have not sought to establish an error of law.

59 The plaintiffs have not, in my opinion, established a basis upon which the Court should exercise the power vested in it to set aside the judgment refusing leave to amend to raise the issue of estoppel. The interlocutory judgment by which the application to amend the statement of claim to include such a claim based on estoppel, was one argued at some length by the plaintiffs and no misapprehension of fact or law or any new or other circumstance has been established which, in my opinion, would warrant that judgment to be reviewed and set aside.

60 Accordingly, having regard to the relevant principles governing the exercise of the discretionary power to set aside judgments, I decline the application.

The application to recall Dr Peterson

61 Although the application in this respect does not seek leave to re-open the plaintiff’s case, I will treat the application as one that does seek such leave as well as an order requiring Dr Peterson to return for further cross-examination.

62 The notice of motion seeks the order for the recall of the witness, notwithstanding the plaintiffs’ actions in voluntarily withdrawing from the hearing. Dr Peterson retired after the plaintiffs left the courtroom (transcript, 25 August 2006, at 727).

63 In considering the application in this respect, it is relevant to have regard to the nature of the issues in the proceedings, to the affidavit evidence of Dr Peterson, which was filed and read in the proceedings and to the question of relevance. In that respect, I agree with the submission that has been made on behalf of the defendants, that a great deal of time was spent in cross-examining Dr Peterson on matters or issues that were of little and often of no relevance whatsoever to any fact in issue between the parties.

64 In order to support the application, it is necessary for the plaintiffs to identify a basis or ground upon which the power should be exercised. In this respect, it is to be noted that, as stated in the submissions for the defendants, the decision to withdraw from the hearing of the proceedings was one taken by the plaintiffs voluntarily and in full knowledge that, if they did so, the proceedings would continue in their absence, which is what occurred.

65 The defendants have submitted that the plaintiffs’ conduct in refusing to accept the Court’s ruling, for example, on the question of estoppel and their failure to obtain a further three days to cross-examine Dr Peterson is consistent with what the defendants maintain in respect of the substantive issues, namely, that whenever the plaintiffs could not get their way, they walked out on the former employers, the defendants. I do not, however, consider that I need to evaluate the submission for the purpose of this application.

66 Absent proper cause, conduct by a party by way of abandoning a hearing by leaving the courtroom during the cross-examination of a witness will usually preclude that party from subsequently applying for an order requiring the witness to return and to be subject to prolonged further cross-examination.

67 The overriding power of the Court is to conduct the proceedings both fairly and efficiently. By s.58 of the Civil Procedure Act 2005, the Court, in making any order of a procedural nature must seek to act in accordance with the dictates of justice. For the purpose of determining what are the dictates of justice in a particular case, it is necessary to have regard to the provisions of ss.56 and 57 of the Act and the extent to which the respective parties have fulfilled their duties under s.56(3). See in that respect, s.56(2).

68 Section 56 provides that the overriding purpose of the Act and the Rules of Court, in their application to civil proceedings, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

69 By s.56(3), it is provided:-

“A party to civil proceedings is under a duty to assist the Court to further the overriding purpose and, to that effect, to participate in the process of the Court and to comply with directions and orders of the Court.”

70 The issues in the present proceedings are quite narrow, it being the fact that the employment with the defendants was, in each case, of limited duration. In considering the application for the recall of Dr Peterson, it is necessary to have regard to the nature and the range of factual issues between the plaintiffs and the second defendant.

71 Dr Peterson swore two affidavits which were read in the proceedings being the affidavits sworn by her on 2 August 2004 and 25 October 2004. Dr Peterson was called to give evidence on 24 August 2006 and, as noted earlier, the transcript of her evidence commences at p.655. There was only very short supplementary evidence adduced from Dr Peterson recorded on pp.655 to 657 of the transcript.

72 Dr Peterson commenced her evidence at 10.30 am on 24 August 2006. The cross-examination continued throughout that day. At transcript p.712, I inquired of the first plaintiff as to how much longer he would be in cross-examination. He stated that it was difficult to estimate but that his estimate was 8 to 12 hours. The second plaintiff indicated that she would not require much more time than that. Dr Peterson was stood down on 24 August 2006 (p.713).

73 The central issues raised in Dr Peterson’s affidavits, as between the plaintiff and the second defendant, may be summarised as follows:-

(a) The second plaintiff’s appointment and subsequent promotions.

(b) The second plaintiff’s approach to Dr Peterson in October/ November 1998 requesting that her husband (the first plaintiff) might be considered for the position of CRA.

(c) The initial interview with the first plaintiff undertaken by Ms Duff and his subsequent interview with Dr Peterson in the first week of November 1998.

(d) The nature of the first plaintiff’s probationary (three month) employment contract.

(e) Discussions between Ms Duff and Dr Peterson concerning Ms Duff’s concern that the first plaintiff was not following her directions.

(f) Report backs by Ms Duff to Dr Peterson concerning the first plaintiff’s performance.

(g) A meeting held in mid-December 1998 with the first plaintiff, Ms Duff and Dr Peterson in which the first plaintiff raised a complaint about having to have his correspondence checked by Ms Duff.

(h) Dr Peterson’s denial that Ms Duff’s request to supervise the first plaintiff’s employment was related to his ability to speak English.

(i) The receipt of the letter on 14 December 1998 in which the first plaintiff resigned his employment.

(j) The subsequent contract work offered to the first plaintiff on 14 January 1999.

74 In relation to the second plaintiff, Dr Peterson gave evidence in relation to the following:-

(a) The second plaintiff’s approach to her requesting an advance of two months salary by reason of a proposal by the plaintiffs to purchase a house.

(b) Discussions concerning the impact of moving out of Sydney would have on the second plaintiff’s employment.

(c) Discussions in February 1999 concerning terms and conditions of employment if she was to move out of Sydney.

(d) Discussions in mid-1999 concerning the hourly pay rate for the first plaintiff.

(e) Discussions on or about 20 July 1999 concerning difficulties with the second plaintiff working remotely from her home.

(f) The receipt of the second plaintiff’s letter of resignation dated 17 August 1999.

75 The plaintiffs’ “joint” affidavit does not in terms seek to explain why they withdrew from the hearing. The affidavit does, however, refer to matters going to their general ability to conduct the proceedings. In this respect, there is reference to physical and mental health issues which they say have affected them and the general strain of the proceedings.

76 In proceedings involving unrepresented parties, the Court endeavours, within recognised limits, to conduct proceedings so as to make appropriate allowance for the disadvantages that face an unrepresented party. The Court also, of course, seeks to balance such considerations against inconvenience and any unfair impact that such allowance may have on the other party or parties to the proceedings.

77 Accordingly, I have given what I consider to be the appropriate weight to the matters that the plaintiffs have raised in their affidavit sworn on 18 September 2006 in determining whether they should be permitted the opportunity to have Dr Peterson recalled for further cross-examination.

78 I have also taken into account both the inconvenience that would result to Dr Peterson and to the defendants in her returning for further cross-examination and the implications as to additional costs arising should I permit further cross-examination of her.

79 Whilst the decision of the plaintiffs to abandon the hearing on 24 August 2006 may be properly characterised as a voluntary act, I am of the opinion that, in a case involving unrepresented litigants, a Court, generally speaking, will hesitate to conclude that any such voluntary act necessarily creates an irredeemable situation. In the present proceedings, the plaintiffs have put forward some matters in their “joint” affidavit to which I have referred and in their written submissions which, in effect, seek to explain what they assert were circumstances of stress and difficulty experienced during the course of the cross-examination of Dr Peterson before they withdrew.

80 In the present case, notwithstanding the plaintiff’s voluntary decision to abandon the hearing, I consider that the overall requirements of justice in the particular circumstances of the case would require that the plaintiffs be permitted the opportunity to continue, within reasonable limits, the cross-examination of Dr Peterson.

81 In coming to this decision, I have regard both to the claimed disadvantage and stress in preparing and conducting the cross-examination as claimed by the plaintiffs and to the fact that Dr Peterson is a significant witness in relation to the action brought by the plaintiffs against the second defendant. To deny them the opportunity of further cross-examining her is a significant matter that should, absent incurable prejudice to the other party or parties, be avoided wherever possible: see, in this respect, Marshall v Wallerawang Collieries [1999] NSWSC 937 per Wood CJ at CL where a similar approach was adopted in determining the application by the plaintiff to re-open. The defendants have not sought to argue that irremediable prejudice or disadvantage would result from permitting the plaintiffs the further opportunity they seek.

82 Accordingly, I propose to grant the application made by the plaintiffs to re-open their respective cases and to have Dr Peterson recalled for cross-examination. I indicate, however, that there will need to be an assessment made as to the reasonable requirements in terms of additional time required for the conduct of such cross-examination.

83 The application for further discovery from the defendants is unsupported by any material which would indicate a basis or requirement for the plaintiffs to require discovery from the defendants at this point in the hearing. The application is, accordingly, refused.

84 The application by the plaintiffs to file further affidavits and call additional witnesses is unsupported by any material which would enable the application to be determined. The application, in that respects, is accordingly stood over with leave to the plaintiffs to apply.

Orders and directions

85 In relation to the notice of motion dated 18 September 2006 filed by the plaintiff I make the following orders and directions:-

(a) The application to “re-open” to set aside or vary the judgment entered on 24 August 2006 as sought in paragraph 1(a) of the notice of motion is dismissed.

(b) A date for the plaintiffs to lodge their final written submissions be determined at the conclusion of evidence.

(c) The application to adjourn proceedings for nine months to be stood over for further consideration at the conclusion of the evidence.

(d) The application for further discovery from the defendants is refused.

(e) The application that the plaintiffs be permitted to file further affidavits and call additional witnesses be stood over to the directions hearing referred to below.

(f) The application to re-open the plaintiffs’ case for the purpose of recalling Dr Peterson for cross-examination is granted, subject to any conditions and directions which the Court may determine in respect of such cross-examination.

(g) Costs of the application be costs in the proceedings.

86 I re-list the proceedings for mention and directions before me at 9.30 am on Tuesday 5 June 2007

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