Hines Exports P/L v Mediterranean Shipping Co (No 2) No. DCCIV-96-711

[2000] SADC 93

HINES EXPORT PTY LTD v MEDITERRANEAN SHIPPING CO (NO 2)
[2000] SADC 93

Judge Lunn
Civil

REASONS ON APPLICATIONS TO REOPEN THE TRIAL

1. On 26 June 2000 I published my reasons, Judgment No [2000] SADC 71, for my findings on the evidence at the trial, but I have not yet entered any judgment. These present reasons need to be read against the background of the earlier reasons. I do not repeat what I have said in the earlier reasons. During the course of addresses the plaintiff’s counsel made an application to reopen his case to recall his only witness, Mr Hines. I deferred that application in the hope that the matter could be resolved without it being pursued. However, that has not occurred. The plaintiff’s application is to be dealt with on the basis that it was made in the course of addresses, and not after judgment.

2. The plaintiff’s counsel submitted that it was a mistake on his part which caused the relevant evidence about the loss which the plaintiff suffered not being led from Mr Hines.  The defendant’s counsel disputed that it was a mistake.  I need not resolve that issue.  Even if there was a mistake by counsel, this by no means would necessarily resolve the application in the plaintiff’s favour.  It would still depend upon what the interests of justice dictate: Ljoljic v Sherlock (No 2) (1990) 157 LSJS 463 at 465.

3. In reply to the plaintiff’s initial submission about re-opening its case the defendant also applied to reopen its case to lead evidence about the previous contractual relations between the parties and the alleged trial Bill of Lading which Mr Hines had denied was delivered.  If the defendant’s application had stood on its own, I would have dismissed it, but if an indulgence is to be granted to the plaintiff it may be only fair that a similar indulgence is granted to the defendant.

4. I take the law on the discretion of a Judge to reopen the evidence on applications made during the course of addresses as being that enunciated by Mullighan J in The Duke Group v Pilmer (No 6) (1997) 193 LSJS 204 at 209 and to be “whether the interests of justice are better served by granting than refusing the application.”

5. On balance I consider that the interests of justice are better served by refusing the applications of both parties than in allowing either of them.  Both parties chose to conduct the trial with very little direct evidence.  This meant that technical points about what was, and was not, proved were likely to be important.  If the plaintiff’s application is granted, I cannot prevent the defendant’s counsel from further cross examining Mr Hines at large: R v Beckett [1966] Qd R 170; Wallace v Wallace (1898) 24 VLR 859. This could well let in further evidence on topics which I have decided against the defendant and may undermine my previous findings about the terms of the contract. There is also a real risk that further evidence by Mr Hines concerning the nature of the plaintiff’s loss may lead to other issues being ventilated. It seems likely that Mr Hines cannot give admissible evidence about what occurred in South Africa. If I allow the evidence to be reopened, it could well mean having to revisit most of the issues which I have already determined because they would be the subject of fresh evidence. As the parties were content to conduct the original trial on a restricted basis I do not see why it is in the interests of justice that most of the contentious issues should now be reopened because some of my findings on the evidence which was presented have not suited the purposes of each party. Accordingly, both applications will be dismissed and there will be judgment for the defendant.