Desmond Henry Randall v Aristocrat Leisure Limited (ACN 002 818 368)
[2004] NSWSC 490
•10 May 2004
CITATION: Desmond Henry Randall v Aristocrat Leisure Limited (ACN 002 818 368) [2004] NSWSC 490 HEARING DATE(S): 10/05/04 JUDGMENT DATE:
10 May 2004JURISDICTION:
Equity Division
Commercial ListJUDGMENT OF: Einstein J DECISION: Leave to read statement in reply CATCHWORDS: Practice and Procedure - Splitting of cases LEGISLATION CITED: Supreme Court Rules (NSW) CASES CITED: Barker v Furlong [1891] 2 Ch 172
Beevis v Dawson [1957] 1 QB 195
Bigsby v Dickinson (1877) 4 Ch D 24
Browne v Murray (1825) Ry & M 254; 171 ER 1012
Gilbert v Comedy Co (1880) 16 Ch D 594
Green v Sevin (1880) 13 Ch D 589
Hardiman, Re [1967] VR 577
Jacobs v Tarleton (1848) 11 QB 421
Jerome v Anderson (1964) 44 DLR (2d) 516
Penn v Jack (1853) LR 2 Eq 314
Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187
Shaw v Beck (1853) 8 Exch 392; 155 ER 1401PARTIES :
Desmond Henry Randall (Plaintiff)
Aristocrat Leisure Limited (ACN 002 818 368) (Defendant)FILE NUMBER(S): SC 50066/03 COUNSEL: Mr B Coles QC, Mr A Fernon (Plaintiff)
Mr G Lindsay SC, Mr A McGrath (Defendant)SOLICITORS: Toomey Pegg Drevikovsky (Plaintiff)
Phillips Fox (Defendant)
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST
Einstein J
Monday 10 May 2004 ex tempore
Revised 7 June 2004
50066/03 DESMOND HENRY RANDALL v ARISTOCRAT LEISURE LIMITED
JUDGMENT - On admissibility of statement of Lionel Jeyaraj of 10 May 2004
1 The present position in these proceedings is that the plaintiff's case has been called and closed, and the defendant's case has been called and closed.
2 The plaintiff has now indicated that he seeks to read a statement of Mr Lionel Jeyaraj in reply. The defendant's stance has been to oppose the now admission at this point in the trial of the statement of Mr Jeyaraj on the basis that the statement includes material which is essentially material which should have been led in chief, although, as the plaintiff in effect puts it, it is material in chief but now masquerading as material in reply.
3 The conventional basis upon which proceedings before many Judges in this Court are conducted is for directions to be given for the filing and service of statements in chief and in reply and, when the hearing begins, for the first plaintiff to give evidence in terms of the statement of the first plaintiff's witness, both in chief, as well as in reply, being read, and cross-examination proceeding.
4 To the extent that the statement is in reply to statements not yet formally read by the defendant, they are effectively taken as read, and by and large no difficulties with this procedure occur because usually the defendant's witness statements are in due course read.
5 The advantage of the procedure is obvious to all and, hence, is usually welcomed by all. It avoids the need for two possible cross-examinations of particular witnesses.
6 Disadvantages can arise if, for example, a defendant elects not to call a particular witness, in which event the sections of the plaintiff's witness statements which responded to that defendant's witness statement are often simply incomprehensible and, therefore, are not taken into account, but to the extent comprehensible are before the Court for better or for worse.
7 In this case, at the commencement of the hearing, to the best of my recollection, counsel readily adopted this as the usual procedure and practice, and Mr Randall's several statements were read, including statements in reply, and he was cross-examined on all.
8 At about that point in the hearing, to the best of my recollection, Mr Coles announced that he did not intend to read the statement of Mr Jeyaraj in chief, as he intended to reserve it until reply. At that stage, Mr Lindsay outlined and telegraphed an objection, and the Court made plain to Mr Coles that this was a sensitive area and albeit that a decision, when an application was made in the fullness of time to read this statement in reply, would be determined on its then merits. He was carefully warned of the possibility that he may not be permitted to do precisely that.
9 The section in Ritchie's Supreme Court procedure dealing with evidence which may be called in reply and splitting a case is set out in 34.6.4 and 34.6.6:
[34.6.6] Splitting the case Ordinarily, a plaintiff must lead in his or her case in chief all the evidence upon which he or she intends to rely. He or she cannot “split” his or her case by reserving for a case in reply evidence which should have been called in chief. Nevertheless, there is authority for the view that , where there are several issues in dispute and in relation to some of them the burden is upon the defendant, a plaintiff may confine his or her evidence in chief to those issues in relation to which he or she bears the onus of proof: Shaw v Beck (1853) 8 Exch 392 at 398; 155 ER 1401 at 1403; Penn v Jack (1853) LR 2 Eq 314; Re Hardiman [1967] VR 577 at 580. Whether these authorities establish an automatic entitlement in favour of a plaintiff in such a case to reserve evidence for a case in reply may be doubted: Beevis v Dawson [1957] 1 QB 195 at 204. But there is nevertheless power to permit a plaintiff, in an appropriate case, to split its case by reserving evidence on some issues until after the conclusion of the defendant’s case. The best known instance of the exercise of this discretion is in relation to defamation cases and a defendant’s plea of justification ( Beevis v Dawson [1957] 1 QB 195; Browne v Murray (1825) Ry & M 254; 171 ER 1012; Jerome v Anderson (1964) 44 DLR (2d) 516 at 526 and 531) but, the appropriate exercise of the discretion is not limited to such cases: Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187. However, once a plaintiff embarks upon the calling of evidence in relation to an issue he or she cannot thereafter seek to call further evidence in reply. This limitation applies even though the issue is one upon which the plaintiff does not bear the onus and in relation to which, consistent with the discretion referred to above, he or she could have sought leave to reserve a case in reply: Browne v Murray, above.”
“[34.6.4] Reply A beginning party may have, in addition to his or her right to an address in reply, a right to call evidence in reply. Where that party has been misled or taken by surprise in respect of matters contained in the other party’s case the court may permit him or her to introduce supplementary or confirmatory evidence in reply: Barker v Furlong [1891] 2 Ch 172; Bigsby v Dickinson (1877) 4 Ch D 24. However, the general rule is that evidence in reply must be confined to evidence which rebuts the other party’s case: Gilbert v Comedy Co (1880) 16 Ch D 594; Jacobs v Tarleton (1848) 11 QB 421; Green v Sevin (1880) 13 Ch D 589. The mere fact that a defendant fails or refuses to call a witness does not give the plaintiff the right to call him or her in reply: Barker v Furlong , above.
…
10 In this case it is quite plain, it seems to me, that there has never been an occasion when Mr Coles has sought to identify particular issues which, to the plaintiff's case, are issues appropriate only for reply. Even this morning, on the Court asking for an indication as to what are the issues which are or have been reserved and which it is said Mr Jeyaraj's statement deals with, all Mr Coles was able to indicate was that the statement covered the factual parameters put forward by the defendant and was in general reply. To my mind, none of that is particularly satisfactory.
11 The sentence in Ritchie:
"Once a plaintiff embarks upon the calling of evidence in relation to an issue, he or she cannot, therefore, seek to call further evidence in reply"
12 Mr Jeyaraj, in general terms, seeks in this statement to give evidence of the part that he played in relation to the material events and, generally, it may be said, to an extent, as I understand it, supportive of Mr Randall's evidence.
13 The statement of Mr Jeyaraj is divided into two sections. The first section, up to and including paragraph 48, covers matters of a general nature, including his own position and activities in certain conversations. Thereafter, the statement purports to deal with an answer to particular witness statements read by the defendant.
14 It seems to me that, in all of the circumstances, what has occurred here may be said to be an accident waiting to happen, in terms of the way in which the conventional practice has been as I have described it. In short, if and to the extent that it is appropriate for a plaintiff to reserve issues until after the conclusion of the defendant's case, to be called in a case in reply, one must accept that that is the plaintiff's due entitlement.
15 In a way, the practice, as I have indicated it to be, for the reasons which I have indicated, amounts, in essence, to a splitting of cases from the commencement of the case. This is the first occasion on which I have had to deal with the point, looming large and of significance in a major piece of litigation, and a decision as to whether or not the plaintiff should be entitled to call the evidence in reply, as it now seeks, is, it seems to me, one of some sensitivity and difficulty.
16 Dealing with the issue, it may be said, at once, that the proposition that the statement may be regarded in two segments [up to paragraph 47 and following] has been, essentially, accepted by Mr Lindsay as misconceived. Mr Lindsay has submitted that he accepts, and concedes I think, that it is really not a practicable course to divide the statement into two segments, simply because, as Mr Coles has put forward, in order to understand the sections from paragraph 48 onwards, one would need to understand what went before. Hence, both counsel have taken the approach that this is an all or nothing decision, as a matter of forensic significance, and that is the efficient approach to addressing submissions. Both counsel have appreciated the significance of what the submission from Mr Coles, and the concession from Mr Lindsay, amounts to.
17 In all of the circumstances, subject to one reservation, the proper administration of the interests of justice in this case, it seems to me, dictate, that the Court grant the leave to read the statement and to call the evidence now, albeit that it could have been called earlier, in order to be consistent with what I understood to be the stance taken by the plaintiff at the inception of the case.
18 The reservation is simply this: Whilst it cannot be said that the defendant's side has not had notice of the vast majority of the statement, because it was served with an unsigned form of most of the statement and has responded to that, the defendant's side has not had an opportunity, on an informed basis [at least informed insofar as the legal advisers are concerned] to consider whether, and if so in what way, to respond to any of the material to be called from Mr Jeyaraj in its case.
19 It seems to me that it will be appropriate, as a condition of granting the leave to read Mr Jeyaraj's statement, to grant leave to the defendant's side to make appropriate application, should it deem it necessary, to supplement, in some fashion, the evidence which it has called, or otherwise to deal, in some relevant fashion, with evidence which it has adduced as part of its case.
20 To my mind, that condition is one of fundamental fairness, bearing in mind the fact that the plaintiff has elected, with witness one, namely Mr Randall, to travel through his evidence-in-chief and in reply and now, with witness two, namely Mr Jeyaraj, seeks to do precisely the same thing, but at another important material time in the case, which is after the defendant's witnesses have been called.
21 Subject to that condition, the Court grants leave to the plaintiff to read Mr Jeyaraj's statement, of course subject to objection.
___________________
I certify that paragraphs 1 - 21
are a true copy of the reasons
for judgment herein of
the Hon. Justice Einstein
given on 10 May 2004 ex tempore
and revised 7 June 2004
Susan Piggott
Associate
7 June 2004
Last Modified: 06/10/2004
0
0
1