Holdsworth and Ellison v RSPCA

[2015] VCC 390

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CI-03-04358

JAMES MAXWELL HOLDSWORTH & HEATHER MUNRO ELLISON	Plaintiffs
v
RSPCA (VIC) INCORPORATED	Defendant

---

JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Melbourne
DATE OF HEARING IN RELATION TO REQUIRED RULING:	Intermittent discussion and submissions between 12 March 2015 and 25 March 2015
DATE OF RULING:	31 March 2015
CASE MAY BE CITED AS:	Holdsworth & Ellison v RSPCA
MEDIUM NEUTRAL CITATION:	[2015] VCC 390

RULING
---

Catchwords: Application for leave to reopen case on the basis of inadvertence – failure of counsel to seek to tender various documents provided to defendant and concerning which there had been some cross-examination by counsel for both plaintiff and defendant – whether documents admissible in any event – whether documents business records for the purposes of exception to the hearsay rule – whether any or any sufficient prejudice to defendant established if tender of fresh evidence permitted – whether documents relevant or of assistance to the Court – ss135 and 136 of the Evidence Act 2008 – factors to be considered.

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S Langslow with Mr P Berman	Maitland Lawyers
For the Defendant	Mr D Christie	Corrs Chambers Westgarth

HIS HONOUR:

General background

1       I am required to give yet another ruling in this prolonged and indeed extremely lengthy case, the oral evidence and submissions in relation to which are now concluded.  The case, in which, save for one issue, the parties essentially seemed unable to agree about anything, ended on the sixty-eighth hearing day.  The parties have leave to file and serve any further written submissions, confined to this Ruling and its effects, within seven days of it being forwarded to them.  No further evidence is to be tendered or oral submissions made.

2       As has been discussed in my lengthy Judgment of 8 August 2014, and in subsequent rulings, the one matter of substance concerning which the parties ultimately agreed, and effectively encouraged, was that the issues of liability and quantum should be split.  This took place on 8 April 2014, the thirtieth day of hearing.  By that time, the plaintiffs and a considerable number of their witnesses, including alleged financial experts, had given evidence and been cross-examined at length.  As has been discussed several times, I consider the evidence given in relation to matters such as the quality of the livestock and the quantum of damages prior to the splitting of the case to be valid evidence which has been tested.  It is evidence which still stands and can be accepted or rejected, in whole or in part, by me.  It has the potential to form part of the basis of the judgment which is yet to come in relation to quantum.

3       In addition to that evidence, a further nine days’ oral evidence has been received on the issue of quantum.  Various documents have been tendered.  It is against that background that the present dispute arises. 

The present dispute and questions to be answered

4       The dispute upon which I am now ruling is one in which the overall question to be determined is whether leave should be given to the plaintiffs to reopen their case.  As was discussed during oral submissions, whilst there may not have been a formal declaration that the parties had closed their respective cases, that was certainly the spirit of what occurred.  Evidence was plainly at an end and counsel had moved on to closing addresses.  Indeed, in accordance with the timetable set, written submissions to which counsel were to speak were filed.  It was towards the end of this process that the present dispute arose. 

5       In making their application for leave to reopen, the fundamental plank upon which the plaintiffs rely is inadvertence on the part of their counsel.  Counsel omitted to seek to tender the documents in question either whilst the defendant’s financial expert, Mr Joe Dicks, was in the witness box and being cross-examined, or at all.  In determining this application, it seems to me that there are a number of subsidiary questions which need to be answered.  I shall now deal with them in turn. 

(a)      Has inadvertence been established?

6       I accept that inadvertence has been established.  It is asserted in the affidavit of the plaintiffs’ solicitor, Mr John Maitland, in support of the present application.  Leading counsel for the plaintiffs, Mr Langslow, has freely admitted inadvertence on his part – see for example Transcript (“hereinafter referred to as “T”) 4722 and 4723.  The only document relevant for present purposes which Mr Langslow sought to tender whilst Mr Dicks was in the witness box was the 2007 partnership tax return, which was tendered for identification purposes only.  Its admission into evidence remains in dispute.  Mr Langslow omitted to seek to tender the other documents in dispute whilst Mr Dicks was in the witness box, or at all.  That there was inadvertence on the part of plaintiffs’ counsel is not a proposition that has been seriously challenged.  I accept that it occurred as alleged.

(b)Can inadvertence be a ground for reopening a case and seeking to tender fresh evidence?

7       I am satisfied that it can be. 

8       In Murray v Figge (1974) 4 ALR 612, a decision of Muirhead J of the Supreme Court of the Northern Territory, reference was made to an earlier decision of Cleland J in Hughes v Hill [1937] SASR 285. In Hughes, his Honour stated:

“In any case in which evidence has been omitted through inadvertence … I would not hesitate to allow further evidence to be given …”

However, Muirhead J stated that he did not consider that this should be taken as a statement of law to the effect that, in any case of inadvertence, an application of this nature should succeed.  However, Muirhead J went on to say that he would add to the three categories of circumstances in which fresh evidence can be introduced, these being set out in Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR at 89, a fourth category. That category was where inadvertence was established. His Honour went on to refer to a number of provisos to which I shall return.

9       What was said in Murray was later discussed, inter alia, by Kenny J in Inspector‑General in Bankruptcy & Anor v Bradshaw & Anor [2006] FCA 22 at paragraph 24. Her Honour there referred to the decision in Murray and to other cases.  She stated that there were four recognised classes of case in which a Court may grant leave to reopen, although, as she stated, these classes overlap and are not exhaustive.  Those four classes are:  fresh evidence; inadvertent error; a mistaken apprehension of the facts; and a mistaken apprehension of the law.  Her Honour went on to say that, in every case, the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to reopen.  Again, authorities are referred to in this regard. 

10      The forensic trail in relation to reopening and fresh evidence then leads to a comparatively recent decision of the Court of Appeal in this State.  In Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232 at paragraphs 24 to 26, the Court discussed the decision in Bradshaw.  The Court said that it respectfully agreed with the four recognised classes of case in which a Court may grant leave to reopen which were described by Kenny J.  Inadvertent error is one of these categories.  The Court also stated that the overriding principle is that the Court consider whether, taken as a whole, the justice of the case favours the grant of leave to reopen. 

11      Further, at T4697, Mr Christie, on behalf of the defendant, effectively conceded that, in some circumstances and subject to further argument, if inadvertence is established, a case can be reopened.  He was vigorously opposing a grant of leave to reopen in the present case and continued so to do.  Accordingly, it may be that the breadth of any concession made by him in this regard is limited.  However, I am quite satisfied that the present state of the law is that inadvertent error is a recognised class of case in which a Court may grant leave to reopen. 

(c)Do the provisos referred to by Muirhead J in Murray operate to the detriment of the plaintiffs’ application in the present case?

12      As stated, in both Bradshaw and Spotlight, the Court expressed the view that the overriding principle to be applied is whether, taken as a whole, the interests of justice are better served by allowing or rejecting the application for leave to reopen the case.  Muirhead J in Murray set out what could be described as four provisos, one of them being that inadvertence is established.  I have already dealt with that.  The other provisos are specified as follows:

(i)the evidence is clearly admissible;

(ii)the fresh evidence could be admitted on conditions which ensured no prejudice to the other party by reason of its introduction at a late point of time; and

(iii)the interests of justice required its introduction.

13      The last mentioned proviso seems to me to coincide with the overriding principle referred to in Bradshaw and Spotlight.  The other two provisos probably fall within, or are aspects of, the overriding principle, but I shall deal with them separately.

(i)        Admissibility

14 In relation to the proposed evidence in question being clearly admissible, I am of the opinion that it falls within a category of evidence that is so admissible. I have had the opportunity of viewing both the 2007 tax return which was tendered for identification purposes and the bundle of documents referred to in the affidavit of Ms Anna White, solicitor for the defendant, which constitutes the bulk of the proposed fresh evidence. I note in passing that Ms White, in her affidavit, refers to the material in the bundle as being “financial documents” and, whilst I do not regard this as being a concession in relation to admissibility, it is a reasonably accurate description. One of the initial objections which Mr Christie raised in relation to the documents is that they are inadmissible because they are, in essence, hearsay. Of course, he has raised other and subsequent arguments. However, in relation to hearsay, I am of the view that the documents in question are all business records within the meaning of s69 of the Evidence Act 2008 and thus fall within an exception to the hearsay rule. I note in passing that it is stated in Uniform Evidence Law in Victoria by Stephen Odgers that the word “business” should be construed liberally.  The decision in Valoutin Pty Ltd v Furst (1998) 154 ALR 119 at 129 is mentioned in this regard. In any event, the documents being both partnership and individual tax returns of the plaintiffs, profit and loss statements, balance sheets and livestock trading statements seem to me to be business records within the meaning of s69 and thus constitute documents which are an exception to the hearsay rule. Accordingly, and leaving to one side arguments concerning prejudice, the interests of justice and the like, they fall into the category of evidence which is clearly admissible.

(ii)       Prejudice

15 I turn now to the question of whether the proposed fresh evidence can be admitted on conditions which ensure no prejudice to the other party by reason of its introduction at the late point in time. Aligned with this is the argument by Mr Christie based upon s136 of the Evidence Act. Whilst it was not argued, s135 of the Evidence Act can also be seen to be relevant in this regard. 

16      When the circumstances are considered, I am not of the view that the defendant has established any sufficient prejudice.  I am not of the view that any prejudice which exists is of sufficient magnitude to tilt the scales in favour of the defendant when any overriding principle – whether the interests of justice are better served by allowing or rejecting the application – is considered.  In arriving at this conclusion, I have had regard to the following.

17      Firstly, as I understand it, at least the bundle of documents, and probably the 2007 partnership tax return, have been in the possession of the defendant’s solicitor for a lengthy period.  In her affidavit of 17 March 2015, Ms White has sworn that, on 16 February 2015, she had sent an email to the defendant’s financial expert, Mr Dicks, attaching a list setting out the financial records that had been produced by the plaintiffs through discovery or in response to subpoenas.  Where financial documents were identified in that list as being available and had not been previously sent to Mr Dicks, they were attached.  So as to assist in this Ruling, I requested that Ms White or someone on behalf of the defendant provide the dates that financial records had been provided by the plaintiffs through discovery or in response to subpoenas.  Those dates have now been supplied, although they may not be entirely clear in some regards.  That is certainly no criticism of Ms White.  It appears that, like everything else connected with this case, there is no simple answer.  It is to be remembered that the hearing of this case commenced on 24 February 2014.  In any event, affidavits of discovered documents seem to have been provided by the plaintiffs on 14 February, 9 July and 31 July 2012.  According to the information supplied by Ms White, both the affidavits of 9 July 2012 and 31 July 2012 contained some financial documents.  The information goes on to record that what could be described as all financial documents in relation to or used by the plaintiffs’ financial expert, Mr Toll, were produced at Court on 26 February 2014, this being in response to a subpoena.  Similar documents from the plaintiffs’ financial expert, Mr Henderson, were produced through the Registry of this Court on 24 February 2014, this again being in response to a subpoena.  It would appear that a similar subpoena was served upon Mr McGuckian.  Nothing seems to be have been produced in response to that subpoena, which was faxed to the plaintiffs’ solicitors on 19 February 2014.  However, it is to be remembered that Mr McGuckian and Mr Henderson are partners and produced essentially joint reports or reports under the letterhead of their firm.  Compliance with the subpoena served on Mr McGuckian does not seem to have been pursued. 

18      It would also appear that the financial documents concerning which Ms White has provided details in response to my request effectively coincide with the reconciliation of plaintiffs’ discovered and subpoenaed documents exhibited to her affidavit of 17 March 2015.  Thus, the bundle of documents the subject of the present Ruling, and which the plaintiffs seek to tender if leave is granted to them to reopen their case, are amongst those produced and made available to the defendant between 9 July 2012 and 26 February 2014.  In other words, they have been in the possession of the defendant for a period commencing well before the splitting of the case on 8 April 2014.  By that time, both plaintiffs and their financial experts – Mr Toll, Mr Henderson and Mr McGuckian – had been cross-examined at length.  They had been cross-examined at a time when quantum was still in issue. 

19      Not only do the documents seem to have been available, but they were referred to during the cross-examination of Ms Ellison by Mr Scanlon, then Senior Counsel for the defendant.  At T1388-9 there was brief cross-examination concerning partnership earnings before the intervention by the RSPCA.  Later, there was more cross-examination of Ms Ellison and discussion concerning financial matters and documents – see T1504-7.  It was there asserted by Mr Scanlon that taxation returns prior to 2001 and in the 2004 and 2005 financial years had not been provided.  As I understand the situation, that is still the case and documents for those financial years are not in the bundle which is in dispute.  I would refer to the letter from Mr Marquet of the defendant’s solicitors to Mr Maitland, such letter being dated 24 March 2015.  The disputed documents which Mr Langslow inadvertently did not seek to tender when cross-examining Mr Dicks are listed and annexed to that letter.

20      Returning to the cross-examination of Ms Ellison, I would point out that, at T1509, Mr Scanlon stated that “I have looked at what I have been given by way of discovery … I don’t need another look at documents that have been discovered, because I have looked at them.”  Thus, as far as the documents in the bundle are concerned, it seems to me clear that they were in the possession of the defendant when the plaintiffs were cross-examined and indeed reference was made to them. 

21      The plaintiffs’ financial experts – Messrs Toll, Henderson and McGuckian – each gave evidence subsequent to that of Ms Ellison and prior to the splitting of the case.  (Mr Toll and Mr Henderson both gave subsequent evidence as to quantum in the light of my ruling as to liability and the number of animals involved and as part of the quantum hearing, which also involved Mr Dicks.)  It follows that the documents in the bundle were also in the possession of the defendant during cross-examination of those witnesses at a time when quantum was still very much a live issue.  Further, the defendant has had the opportunity to again cross-examine Mr Toll and Mr Henderson as part of this quantum hearing.  Whilst Mr McGuckian was not recalled, I note that he was cross-examined in relation to the documents in any event – see, for example, T2338 and following pages.

22      Thus, I fail to see that any, or any sufficient, prejudice would result to the defendant by reason of the plaintiffs being given leave to reopen its case for the purpose of tendering the documents in question.

(iii)      The interests of justice

23      I am of the view that, when taken as a whole, the justice of the case favours the grant of leave to reopen.  The tendering of otherwise admissible documents which have been in the possession of the defendant for a lengthy period and concerning which it has had the opportunity to cross-examine, and has in fact cross-examined, which documents were not tendered by reason of inadvertence, seems to me to be something which should be permitted in the interests of justice.  The interests of justice are better served by allowing the application for leave to reopen so that the documents can be placed in evidence.

24 I would add that the finding that I have made above applies, if anything, more clearly to the 2007 partnership return, which was in fact tendered for identification purposes. It is a document referred to in the correspondence and in particular is referred to in the exhibit to the affidavit of Ms White and in the letter of Mr Marquet. Leave to reopen is not required in relation to it. Rather, it has simply been awaiting a ruling by me on the question of its admissibility. It was determined that such ruling would await my decision in relation to the bundle of documents. It seems to me to be clearly a business record for the purposes of s69 of the Evidence Act and to be admissible.  In addition, as stated, the above reasoning in relation to the bundle of documents applies to it. 

(d)      Other arguments

25 Mr Christie advanced an argument based upon s136 of the Evidence Act. This provision limits the use to be made of evidence if there is danger that the particular use of it might be unfairly prejudicial to a party or be misleading or confusing. This may fit in with an argument raised by him that the documents might be received in evidence so as to assist me with understanding aspects of the evidence-in-chief or cross-examination, but should not be admitted in the ordinary way in relation to truth of contents. I am not of the view that there has been established unfair prejudice to the defendant. I would refer to what has been set out above. In addition, I am not of the view that the use of the evidence in question might be misleading or confusing. It may be that, if the trial was one involving a jury, there might be more substance to allegations of unfair prejudice or of possible confusion and the like. Even then, it seems to me that, in the circumstances of the present case, the defendant might struggle to satisfy me that such limited use of the proposed evidence might be ordered. Particularly in the absence of a jury, this argument does not seem to me to be one of merit. The same argument applies in relation to s135 of the Evidence Act. Essentially the same factors are to be considered, although the issue of undue waste of time is also raised. Given the manner in which this particular litigation has been conducted, the wastage of time associated with the present procedural and evidentiary dispute could well be described as absolutely minimal. In any event, I am not of the view that s135 of the Evidence Act assists the defendant.  I appreciate that this was not specifically argued.

26      Another argument that was advanced by Mr Christie concerned the fact that the application to reopen the case was not made while Mr Dicks was in the witness box.  In other words, the inadvertence occurred then and not prior to the closure of the case as a whole.  I am not sure where this argument leads.  There seems to be no argument but that Mr Dicks was provided with the relevant documents prior to completing his reports and was cross-examined concerning at least some of those documents.  I accept that Mr Langslow may well have intended to tender the documents before Mr Dicks completed his evidence.  He did not do so due to inadvertence.  He then did not tender the documents prior to the completion of the plaintiffs’ case, again due to inadvertence.  The distinction between the situations does not cause me to alter my opinion.  The situation remains that the interests of justice are better served by allowing the application for leave to reopen the plaintiffs’ case, bearing in mind that this will involve the tendering of the documents in the bundle and the 2007 partnership tax return.

27      A further submission by Mr Christie was that there was no utility in allowing the documents into evidence.  They would not assist the Court and are, in essence, irrelevant.  This submission seems to be at least partly based upon the argument of Mr Christie that, in accordance with the evidence, the correct way of assessing the quantum of damages is to assess the loss of profitability and opportunity caused by the intervention of the defendant.  This involves the measuring of hypothetical against hypothetical.  I am against his submission.  As I understand it, counsel for the plaintiffs are arguing that, where they are available, actual figures in relation to trading, profit and the like should be used.  They then seek that the financial documents be tendered as a basis for this.  It seems to me that they are entitled to put in evidence documents which support, or provide a foundation for, such argument.  I have given no ruling as to the correct method of approaching the assessment of damages.  Indeed, the debate in this regard constitutes a substantial part of this whole quantum hearing.

28      In argument, Mr Langslow asserted that the starting figure selected by Mr Dicks for his calculation as to loss of profit is incorrect.  This argument is closely aligned to the one which I have just described, but it seems to me that the documents are relevant to an examination of this argument.  Another interrelated argument was also advanced by Mr Langslow to the effect that the figures in the relevant documents are indicative of the actual operation of the partnership or of the individuals involved, but essentially the substance of his submissions was that the documents were relevant and, at least in part, provided an actual foundation for a method of calculating damages for which he was arguing.  In the circumstances, it does not seem to me that the documents in question should be excluded on the basis that they are irrelevant, or that the tendering of them is an exercise in futility.

29      Mr Christie also referred me to the decision of the Full Court of the Federal Court of Australia in Allam v Aristocratic Technologies and Ors(Aust) (2012) 95 IPR 242. I am not persuaded that the decision in that case, relating to leave to reopen for the purposes of tendering a chain of emails, should persuade me not to grant such leave in the present case. It is apparent that, in Allam, there were multiple respondents and that the “late” evidence was sought to be admitted against all respondents.  They were all then confronted with different evidence upon which to make submissions as to liability and relevance.  To state the obvious, there is only one defendant in the present case and it possessed the documents in question for a considerable period both prior to the trial and prior to the application to reopen the case.  As stated at greater length above, it cross-examined in relation to them.  The circumstances seem to me to be considerably different to those which existed in Allam, and I am not persuaded to reject the application of the plaintiffs to reopen their case and tender the documents by reason of anything in it.  I would add that Allam does not appear to be a case involving inadvertence

Conclusion

30      The plaintiffs are granted leave to reopen their case for the purpose of tendering all the relevant documents that have been referred to above.  As stated, I will allow the parties a period of seven days to provide any written submissions, hopefully succinct, as to the possible impact of this Ruling.  To underline this, such written submissions are not compulsory and, if provided, are to be confined to the upshot or impact of the additional documents being allowed into evidence.  In addition, I shall hear the parties as to any ancillary orders that are required.