Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd
[2007] WASCA 10
•24 NOVEMBER 2006
GONINAN & CO PTY LTD -v- DIRECT ENGINEERING SERVICES PTY LTD [2007] WASCA 10
| (2007) 33 WAR 182 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 10 | |
| THE COURT OF APPEAL (WA) | 09/01/2007 | ||
| Case No: | CACV:78/2006 | 24 NOVEMBER 2006 | |
| Coram: | PULLIN JA | 24/11/06 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| A | |||
| PDF Version |
| Parties: | GONINAN & CO PTY LTD (ACN 000 333 196) DIRECT ENGINEERING SERVICES PTY LTD (ACN 008 700 178) |
Catchwords: | Appeals Practice and procedure Application to adduce additional evidence on appeal Principles governing the exercise of discretion |
Legislation: | Supreme Court (Court of Appeal) Rules 2005 (WA), r 47(3)(d) |
Case References: | CDJ v VAJ (1998) 197 CLR 172 de la Espriella-Velasco v The Queen (2006) 31 WAR 291 Petrofina (UK) Ltd v Magnaload Ltd [1984] QB 127 Thiess Contractors Pty Ltd v Norcon Pty Ltd (2001) 11 ANZ Ins Cas 61-509; [2001] WASCA 364 Australian Electrical Electronics Foundry & Engineering Union Western Australian Branch v Hamersley Iron Pty Ltd (1998) 19 WAR 145 Bartlett v Jones, unreported; FCt SCt of WA; Library No 990073; 22 February 1999 BaughBelarde Construction Co v College Utilities Corp (1977) 561 P 2d 1211 Bradburn v Great Western Railway Co [1874] LR 10 Ex 1 Centrepoint Custodians Pty Ltd v Lidgerwood Investments Pty Ltd [1990] VR 411 Co-operative Bulk Handling Ltd v Jennings Industries Ltd (1995) 8 ANZ Ins Cas 61286 Cooperative Retail Services Ltd v Taylor Young Partnership Ltd [2002] 1 WLR 1419 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64 Coulton v Holcombe (1986) 162 CLR 1 Fowkes v Manchester and London Assurance Association (1863) 3 B & S 917 Gates v City Mutual Life Assurance Society (1986) 160 CLR 1 Giblin v McMullen (1869) LR 2 PC 317 Hacai Pty Ltd v Rigil Kent Pty Ltd, unreported; FCt SCt of WA; Library No 960450; 19 December 1995 Haines v Bendall (1991) 172 CLR 60 Home Insurance Co v Pinski Bros Inc (1972) 500 P 2d 945 John Edwards & Company v Motor Union Insurance Company [1922 2 KB 249 Jones v Bartlett (2000) 205 CLR 166 L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 Lackovic v Insurance Commission (WA) (2006) 31 WAR 460 Mason v Sainsbury (1782) 3 Dougl KB 61 Morris Ford Motor Co Ltd [1973] QB 792 Mostert v Durban Roodenpoort Deep Ltd [2005] WASCA 309 Neill v Duke of Devonshire (1882) 8 App Cas 135 Park v Brothers (2005) 80 ALJR 317 Robinson v Harman (1848) 1 Ex 840 Stafford Metal Works Inc v Cook Paint & Varnish Co (1976) 418 F Supp 56 Tate v Johnson (1953) 53 SR (NSW) 492 Trident General Insurance v McNiece Bros Pty Ltd (1988) 165 CLR 107 Visic v State Government Insurance Office (1990) 3 WAR 122 Water Board v Moustakas (1988) 180 CLR 491 Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 Woodside Petroleum Development Pty Ltd v H & RE & W Pty Ltd (1999) 20 WAR 380 WSROC v Stratona Pty Ltd (2002) 12 ANZ Ins Cas 61530 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GONINAN & CO PTY LTD -v- DIRECT ENGINEERING SERVICES PTY LTD [2007] WASCA 10 CORAM : PULLIN JA HEARD : 24 NOVEMBER 2006 DELIVERED : 24 NOVEMBER 2006 PUBLISHED : 10 JANUARY 2007 FILE NO/S : CACV 78 of 2006 BETWEEN : GONINAN & CO PTY LTD (ACN 000 333 196)
- Appellant
AND
DIRECT ENGINEERING SERVICES PTY LTD (ACN 008 700 178)
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MURRAY J
Citation : DIRECT ENGINEERING SERVICES PTY LTD -v- A GONINAN & CO LTD [2006] WASC 105
File No : CIV 1098 of 2001
(Page 2)
Catchwords:
Appeals - Practice and procedure - Application to adduce additional evidence on appeal - Principles governing the exercise of discretion
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 47(3)(d)
Result:
Application dismissed
Category: A
Representation:
Counsel:
Appellant : Mr G R Hancy
Respondent : Mr L F A Nixon
Solicitors:
Appellant : Jackson McDonald
Respondent : Clayton Utz
Case(s) referred to in judgment(s):
CDJ v VAJ (1998) 197 CLR 172
de la Espriella-Velasco v The Queen (2006) 31 WAR 291
Petrofina (UK) Ltd v Magnaload Ltd [1984] QB 127
Thiess Contractors Pty Ltd v Norcon Pty Ltd (2001) 11 ANZ Ins Cas 61-509; [2001] WASCA 364
Case(s) also cited:
Australian Electrical Electronics Foundry & Engineering Union Western Australian Branch v Hamersley Iron Pty Ltd (1998) 19 WAR 145
(Page 3)
Bartlett v Jones, unreported; FCt SCt of WA; Library No 990073; 22 February 1999
BaughBelarde Construction Co v College Utilities Corp (1977) 561 P 2d 1211
Bradburn v Great Western Railway Co [1874] LR 10 Ex 1
Centrepoint Custodians Pty Ltd v Lidgerwood Investments Pty Ltd [1990] VR 411
Co-operative Bulk Handling Ltd v Jennings Industries Ltd (1995) 8 ANZ Ins Cas 61286
Cooperative Retail Services Ltd v Taylor Young Partnership Ltd [2002] 1 WLR 1419
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64
Coulton v Holcombe (1986) 162 CLR 1
Fowkes v Manchester and London Assurance Association (1863) 3 B & S 917
Gates v City Mutual Life Assurance Society (1986) 160 CLR 1
Giblin v McMullen (1869) LR 2 PC 317
Hacai Pty Ltd v Rigil Kent Pty Ltd, unreported; FCt SCt of WA; Library No 960450; 19 December 1995
Haines v Bendall (1991) 172 CLR 60
Home Insurance Co v Pinski Bros Inc (1972) 500 P 2d 945
John Edwards & Company v Motor Union Insurance Company [1922 2 KB 249
Jones v Bartlett (2000) 205 CLR 166
L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235
Lackovic v Insurance Commission (WA) (2006) 31 WAR 460
Mason v Sainsbury (1782) 3 Dougl KB 61
Morris Ford Motor Co Ltd [1973] QB 792
Mostert v Durban Roodenpoort Deep Ltd [2005] WASCA 309
Neill v Duke of Devonshire (1882) 8 App Cas 135
Park v Brothers (2005) 80 ALJR 317
Robinson v Harman (1848) 1 Ex 840
Stafford Metal Works Inc v Cook Paint & Varnish Co (1976) 418 F Supp 56
Tate v Johnson (1953) 53 SR (NSW) 492
Trident General Insurance v McNiece Bros Pty Ltd (1988) 165 CLR 107
Visic v State Government Insurance Office (1990) 3 WAR 122
Water Board v Moustakas (1988) 180 CLR 491
Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598
Woodside Petroleum Development Pty Ltd v H & RE & W Pty Ltd (1999) 20 WAR 380
WSROC v Stratona Pty Ltd (2002) 12 ANZ Ins Cas 61530
(Page 4)
1 PULLIN JA: The respondent made an application for an order pursuant to r 47(3)(d) of the Supreme Court (Court of Appeal) Rules 2005 (WA) for an order admitting additional evidence at the hearing of the appeal. I dismissed the application on 24 November 2006 with reasons to be published later.
Background
2 The respondent ("DES") was a contractor to Hamersley Iron Pty Ltd. The contract involved upgrading air-conditioning and ventilation systems at an office in Dampier. DES contracted with the appellant ("Goninan & Co") to install a stairway and handrail. Hamersley Iron's offices were damaged by a fire caused by a breach of contract and negligence of the Goninan & Co's employees while carrying out the work under the DES contract. DES paid Hamersley Iron the repair costs and claimed reimbursement from its insurer AXA. AXA paid out under its insurance policy and then exercised its right of subrogation and in DES's name, sued Goninan & Co for the amount which had been paid to Hamersley Iron.
3 In its defence, Goninan & Co pleaded that DES was obliged under its contract with Hamersley Iron Pty Ltd to insure its subcontractors, that Goninan & Co was an insured under the AXA policy and that no action could therefore be maintained. DES conceded that if the appellant was an insured under the AXA policy, AXA had no right of subrogation.
4 At trial, Murray J upheld the DES claim and entered judgment against Goninan & Co. Murray J held that DES was obliged under its contract with Hamersley Iron Pty Ltd to obtain insurance for the benefit of itself and Hamersley Iron but was not obliged to obtained insurance for subcontractors and was therefore not obliged to obtain insurance for Goninan & Co. His Honour also held that the appellant was not an insured under the AXA policy.
5 Goninan & Co has appealed against the judgment contending that:
(a) the trial Judge erred in failing to find that DES was obliged under the contract with Hamersley Iron Pty Ltd to obtain insurance against liability of subcontractors for property damage;
(b) the trial Judge erred in failing to find that the appellant was an insured under the AXA policy; and
(c) if ground 1 succeeds and ground 2 fails, then the trial Judge erred in law in failing to find that Goninan & Co was entitled to set off against DES's claim the amount of the insurance fund that should
- have been available if DES had complied with its obligation to obtain insurance against the liability of subcontractors for property damage.
The additional evidence
6 The additional evidence which DES wishes to adduce is in an affidavit of Phillip Lansell sworn 6 April 2001. The affidavit was filed in the proceedings leading up to the trial in relation to an interlocutory application brought by Goninan & Co to set aside default judgment which had been entered against it. In the affidavit, Mr Lansell, a partner at Jackson McDonald & Co which was acting for Goninan & Co, deposed to the fact that HIH Insurance was the public liability insurer of Goninan & Co in respect of the DES claim. Mr Lansell deposed that his firm had requested that investigations be undertaken and that once they were completed, he intended to provide an opinion on indemnity, liability and quantum to HIH Insurance. The respondent points to this material as providing evidence that Goninan & Co had its own insurance cover. At the trial Goninan & Co did not seek to tender this affidavit or to prove that Goninan & Co had its own insurance.
7 DES contends that this additional evidence is relevant because Goninan & Co's outline of submissions in par 12 and par 13 refers to the case of Petrofina (UK) Ltd v Magnaload Ltd [1984] QB 127 at 136 in which Lloyd J said that there was a commercial reason for a head contractor to take out a single policy covering the whole risk. The DES submissions continue:
"(12) Were it otherwise each subcontractor would be compelled to take its own separate policy. This would mean extra paperwork and could lead to claims and cross-claims in the event of an accident and the cost of insuring a subcontractor's liability might be uneconomic with the premium out of all proportion to the value of the subcontract.
(13) Petrofina concerned insurance of the contract works rather than liability insurance. The commercial justification for a head contractor to take out insurance for all parties is also applicable where the insurance is for liabilities only."
8 DES contends that Goninan & Co is placing reliance on the Petrofina case in relation to the construction of the Hamersley Iron Pty Ltd/DES contract and that DES wishes to counter this to show that
(Page 6)
- Goninan & Co had in fact taken out its own separate policy. Goninan & Co deny that what was said by Lloyd J is relevant to the proper construction of the DES/Hamersley Iron Pty Ltd contract.
Principles governing the application for an order to adduce additional evidence
9 Rule 47(3)(d) of the Court of Appeal Rules, which confers jurisdiction on a single Judge to make an order relating to the admission of additional evidence, does not contain any words limiting or governing the exercise of that discretion. This may be contrasted with the repealed O 63 r 10 of the Rules of the Supreme Court 1971 (WA), which conferred power on the Full Court to receive further evidence but only on "special grounds" and with the "special leave" of the Court. In CDJ v VAJ (1998) 197 CLR 172 the High Court was called on to consider s 93A(2) of the Family Law Act 1975 which provided that the Family Court of Australia had power in an appeal to receive further evidence upon questions of fact. Like r 47(3)(d), there were no words limiting or governing the exercise of that discretion. In my opinion, some observations made by the High Court about s 93A(2), apply equally to r 47(3)(d) of the Court of Appeal Rules. I will modify those observations so that they relate to the Court of Appeal Rules.
10 First, there is no reason for thinking that the common law rules which governed the admission of fresh evidence apply to confine the discretion conferred by r 47: CDJ v VAJ at [52] for Gaudron J, [107] and [108] per McHugh, Gummow and Callinan JJ, and at [186] per Kirby J.
11 However, although an appeal to the Court of Appeal is by way of rehearing (see r 25) it is highly unlikely that the jurisdiction conferred by r 47(3)(d) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdictions. The availability of additional evidence relevant to the issues in the appeal cannot be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the additional evidence exists to serve the demands of justice. Ordinarily where it is alleged that the admission of additional evidence requires a new trial, justice will not be served unless the Court of Appeal or a Judge is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial Judge
(Page 7)
- and put that person to the expense, inconvenience and worry of a new trial: CDJ v VAJ at[111] per McHugh, Gummow and Callinan JJ.
12 Next, although there is no invariable rule which governs applications under r 47, the failure to have adduced evidence which was available or which by reasonable diligence could have been made available at trial will be a relevant factor against the exercise of the discretion. Where the evidence has been deliberately withheld at trial, the failure to call it will ordinarily weigh heavily in the exercise of the discretion: CDJ v VAJ at [116] per McHugh, Gummow and Callinan JJ, at [55] per Gaudron J.
13 Considerations relevant to the exercise of the discretion will vary depending upon the statutory context in which the discretionary power is conferred. For example, the powers of the Court of Appeal under s 40 of the Criminal Appeals Act 2004 to admit evidence involve similar considerations, but it is clear that greater latitude must be extended to an accused in determining what evidence by reasonable diligence in his own interests could have been produced at trial: see de la Espriella-Velasco v The Queen (2006) 31 WAR 291 at [152].
Should an order be made permitting the adducing of additional evidence?
14 In my opinion the order should not be made for the following reason. First, the additional evidence which DES wishes to put before the Court of Appeal was available to it at the trial and it chose not to make use of it there. Secondly, the evidence that Goninan & Co had its own insurance is irrelevant to the construction of the contract between Hamersley Iron Pty Ltd and DES. Finally, the evidence is not relevant in relation to damages. See Thiess Contractors Pty Ltd v Norcon Pty Ltd (2001) 11 ANZ Ins Cas 61-509; [2001] WASCA 364.
15 The application is dismissed.
11
23
1