Joseph Marijancevic v Roads Corporation of Victoria
[2016] VSCA 181
•29 July 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0114
| JOSEPH MARIJANCEVIC | Applicant |
| v | |
| ROADS CORPORATION OF VICTORIA | Respondent |
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| JUDGES: | WHELAN, FERGUSON and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 July 2016 |
| DATE OF JUDGMENT: | 29 July 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 181 |
| JUDGMENT APPEALED FROM: | [2015] VSC 240 (Ginnane J) |
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JUDICIAL REVIEW – Applicant required to undergo practical drive test and road law knowledge tests where unlicensed for more than five years – Whether Road Safety Act 1986 s 27 permitted respondent to require applicant to undergo tests where no physical or mental unfitness relied upon – Requirement to undergo tests lawful – Road Safety Act 1986 ss 1, 17, 19, 24, 27 – Road Safety (Drivers) Regulations 2009 regs 39, 78.
JUDICIAL REVIEW – Adequacy of reasons – Absence of evidence to support applicant’s contention that licence renewed – Reasons sufficient to disclose path of reasoning.
JUDICIAL REVIEW – Procedural fairness – Refusal to allow examination of potential witness – Refusal to allow applicant to inspect subpoenaed documents without paying prescribed fee – Refusal to allow filing of affidavit – No procedural unfairness occasioned – Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J A Ribbands with Mr C G K Madder | Victorian Bar Pro Bono Scheme |
| For the Respondent | Mr N Wood | Maddocks |
WHELAN JA
FERGUSON JA
McLEISH JA:
The applicant failed in a proceeding in the Trial Division seeking to quash a decision made by the respondent under s 27 of the Road Safety Act 1986 (‘RSA’) to require the applicant to undertake a road law knowledge test and a practical drive test. The applicant contends that the decision should have been set aside because the respondent had proceeded on a misconception as to his circumstances. He also contends that he was denied procedural fairness by the judge in the Trial Division.
For the reasons that follow, the applicant’s submissions should be rejected.
Background
On 7 September 2005, the applicant’s driver licence was cancelled by the Magistrates’ Court. An appeal from that decision to the County Court was dismissed on 18 November 2005.
The applicant claims that he attended one of the respondent’s locations seeking to ‘renew’ his driver licence in ‘late August 2012’, and that this application was granted. The respondent denies that it granted the applicant a licence at that time.
The applicant subsequently applied for a driver licence on 27 February 2014. The respondent issued a licence to him, apparently due to an error on its part. The respondent had a ‘business rule’ stating that ‘[a] person who has not held a valid licence within the previous five years due to a ban is required to undergo a knowledge and drive test prior to the re‑issue of a Victorian driver licence’.
Having realised its error, the respondent sought to rectify the matter by requiring the applicant to pass the tests already mentioned.
The respondent communicated this requirement to the applicant by letter dated 3 June 2014. In relevant part, the letter read as follows:
As more than 5 years had passed between the cancellation of your driver licence on 7 September 2005 and your application for a new licence on 27 February 2014, VicRoads’ ordinary business procedures would have required you to take the road law knowledge test and the practical drive test prior to the issue of a driver licence. These procedures were overlooked as the result of an error made by the staff who issued your licence. As a result of that error, your driver licence was issued without requiring you to undertake the usual tests.
However, VicRoads is entitled to require a person to undergo a test at any time, to determine if that person is unfit to drive motor vehicles, including a test in relation to the person’s competence or any other test that VicRoads considers necessary and appropriate: see ss 27(1)(a) and 27(2) of the Act. Where you have been unlicensed for a very significant period of time, and your previous driving history demonstrated a significant number of driving offences and traffic infringements, it is appropriate that tests be undertaken to assess your practical driving competence and knowledge of Victorian road laws.
The letter required the applicant to undertake and pass the tests by 1 July 2014.
After the applicant failed to undertake the tests as required, the respondent by letter dated 6 August 2014 suspended the applicant’s licence indefinitely, with effect from 10 August 2014.[1]
[1]A suspension of the applicant’s driver licence on other grounds would be lifted on 10 August 2014. That suspension was made following the issuing of a demerit point option notice by the respondent under s 25(3) of the RSA, which was the subject of a separate judicial review proceeding heard together with the matter under appeal. The respondent admitted that the issuing of the points notice was vitiated by jurisdictional error. Accordingly, the trial judge made orders quashing the notice and the suspension. No appeal has been brought from those orders.
Section 27 of the RSA at the time relevantly provided:
27 Power of Corporation to require tests to be undergone
(1)The Corporation may require a relevant person to undergo a test to determine—
(a)if the person is unfit to drive motor vehicles or a category of motor vehicles; or
(b) if it is dangerous for the person to drive motor vehicles or a category of motor vehicles; or
(c)whether any driver licence or learner permit held by the person should be subject to conditions and, if conditions are to be imposed, the type of conditions to be imposed.
(2) For the purposes of subsection (1), the person may be required to undergo—
(a)a test in relation to the person’s fitness, including a test in relation to the person’s health or medication the person is taking and its effect on the person’s ability to drive; or
(b) a test in relation to the person’s competence; or
(c) any other test the Corporation considers necessary and appropriate in the circumstances.
…
(4)No action may be taken against a person who carries out a test under this section and who expresses to the Corporation an opinion formed by that person as a result of the test.
(5) No action may be taken against a person who, in good faith, reports to the Corporation any information which discloses or suggests that a person is unfit to drive or that it may be dangerous to allow that person to hold or be granted a driver licence, a driver licence variation or a permit.
(6) In this section—
…;
relevant person means a person who is—
(a) the holder of a driver licence or a permit; or
(b) an applicant for a driver licence or a permit; or
(c) an applicant for the variation of a driver licence.
Other statutory provisions
Section 1 of the RSA sets out the purposes of the Act in the following terms:
The purposes of this Act are—
(a) to provide for safe, efficient and equitable road use; and
(ab)to set out the general obligations of road users in relation to responsible road use; and
(b)to improve and simplify procedures for the registration of motor vehicles and the licensing of drivers; and
(c) to prevent the rebirthing of stolen vehicles; and
(d)to ensure the equitable distribution within the community of the costs of road use.
Part 3 of the RSA is entitled ‘Licensing of Drivers’. Its purposes are set out in s 17, as follows:
The purposes of licensing are—
(a)to ensure that people who drive motor vehicles on highways are competent drivers; and
(b)to ensure that drivers are aware of safe driving practices and road law; and
(c)to ensure that people who are, or who become, unfit to drive are not permitted to drive on highways; and
(d)to enable the identification of drivers for the purposes of law enforcement and accident investigation.
Section 19(1) provides that the Corporation may, on the application of a person over the age of 18 years, grant a driver licence if it is satisfied that the applicant is qualified to hold such a licence. By virtue of s 19(4), a licence may be applied for, granted, renewed or refused only in accordance with the regulations.
Section 24(2)(a) permits the Corporation, in accordance with the regulations, to suspend for any time that it thinks fit the driver licence of any person. Regulation 78(1) of the Road Safety (Drivers) Regulations 2009 permits the Corporation to vary, suspend or cancel a person’s driver licence if the person is required under s 27 to undergo a test and has refused or failed to do so.
Proceeding in the Trial Division
As indicated, the applicant gave evidence that he had renewed his driver licence in August 2012. The applicant submitted that the respondent’s record‑keeping was inaccurate, such that its contention that he did not hold a licence during the period 2005 to 2014 should not be accepted. He relied on four matters in support of that submission. First, the respondent had wrongly attributed 4 demerit points to him in circumstances where he had made a statutory declaration that Mr Joseph Henderson was driving the car when those demerit points were incurred. The relevant traffic infringement notice was withdrawn, but the demerit points were still recorded against the applicant, leading to his licence being suspended in error. Secondly, the respondent had wrongly attributed to him a conviction for driving with a suspended licence even though he was acquitted of that offence on appeal to the County Court. Thirdly, the respondent’s records showed changes of the applicant’s address that had not occurred. In particular, a document produced by the respondent, dated 12 February 2014 and addressed ‘To Whom It May Concern’, stated that the applicant was the holder of a current driver licence and that he had notified the respondent of a change of address. There followed a series of addresses, one of which was that of the respondent’s head office. Finally, the applicant relied on various court orders that proceeded on the basis that he had a driver licence.[2]
[2]The applicant also contended that the decision to require him to undertake the tests was actuated by an improper purpose. That contention was not pursued before this Court.
The respondent contended that the applicant had not held a driver licence between 7 September 2005 and 27 February 2014. The respondent led evidence from its records in support of that contention. It submitted that the applicant therefore satisfied the conditions of the respondent’s ‘business rule’, such that it was appropriate that he be required to pass the tests before he was issued with a licence. Therefore, it could not be said that the respondent’s exercise of the discretion in s 27 of the RSA had miscarried when it required him to undertake and pass the tests.
The trial judge held that the applicant was unable to show that a driver licence had been issued to him in the five-year period preceding the mistaken issuance of a licence on 27 February 2014.[3] He accorded little weight to the document dated 12 February 2014 stating that the applicant held a driver licence, in light of the incorrect address that it listed.[4] He remained unpersuaded that the applicant had obtained a licence in 2012, and noted that the applicant did not produce a copy of it at trial.[5]
[3]Marijancevic v Roads Corporation of Victoria [2015] VSC 240 [45] (‘Reasons’).
[4]Ibid [27].
[5]Ibid [46].
The judge held that the applicant had not established that the respondent had made any jurisdictional error.[6] The proceeding was therefore dismissed. At the same time, the trial judge set aside a suspension of the applicant’s driver licence, on other grounds, which had been the subject of a separate proceeding heard together with the present matter.[7]
[6]Ibid [48].
[7]See above n 1.
Proposed grounds of appeal
The application for leave to appeal set out six proposed grounds, five of which were pressed at the hearing. Counsel for the applicant also sought leave to add a seventh ground. The surviving five grounds in the application for leave to appeal are as follows:
Ground 1
The Court failed to take into consideration relevant evidence from which it could be inferred that the applicant had a valid driver’s licence between 2005 and 2014, in circumstances where the respondent purported to apply its ‘business rule’ to the applicant on the basis that he had been without a licence for a period of more than five years.
Ground 3
In finding that there was no evidence to establish that the applicant had a licence at any time in the five year period prior to the issuing of a licence to him in February 2014, his Honour failed to give any sufficient reasons or show a path of reasoning to that conclusion.
Ground 4
The Court erred in not allowing Connie Dalama to be cross-examined by the lay self-represented plaintiff and failed to provide the required assistance to the self-represented plaintiff so as to assist him in the presentation of his case in furtherance of the Court’s fundamental task of ascertaining the rights of the parties.
Ground 5
The Court erred in not directing the Supreme Court Registry to provide the plaintiff with an opportunity to inspect documents subpoenaed in the proceeding in circumstances where the applicant swore he was unable to pay the requisite fee.
Ground 6
The Court erred in failing to accept into evidence in the proceedings the applicant’s affidavit dated 25 May 2015 when such evidence was relevant and admissible.
The seventh ground, which it was sought to add, was in the following terms:
Ground 7
The Court erred in construing s 27 of the Road Safety Act as providing authority for the respondent to require the applicant to undergo a driving test in all the circumstances of his case.
The Court heard full argument in respect of the proposed additional ground and reserved its decision as to whether to grant leave for that ground to be added.
In addition, the respondent submitted by notice of contention that the decision to require the applicant to undertake and pass the tests was valid under s 27 even if the applicant had ‘renewed’ his driver licence in 2012 as he had asserted. It will be convenient to return to this contention later. A second contention was to the effect that the Court should refuse relief in any event on discretionary grounds because the applicant could have appealed the decision to suspend his licence to the Magistrates’ Court under s 26 of the RSA and the only consequence of the decision under review was that the applicant was required to pass two standard licence tests. In light of the conclusions that follow, it is unnecessary to address the second contention. However, if the applicant had shown that the decision was made without power, the fact that the test could readily be undertaken and might easily be passed by an experienced driver such as the applicant would not provide a very strong basis for declining relief on discretionary grounds.
Construction of s 27
It is convenient to deal first with the proposed additional ground of appeal, which raises a question of construction of s 27 fundamental to the consideration of the case. The respondent objected to leave being granted in respect of this ground, to the extent that it seeks to rely upon factual circumstances in respect of which evidence could have been led, had the ground been relied upon before the trial judge. There is force in that submission. However, it is convenient to consider first the question of law which underlies the proposed additional ground, which can be resolved independently of the facts of the case.
Counsel for the applicant submitted that the purposes of the RSA in general, and pt 3 in particular, taken together with the fact that the Corporation is not responsible for ensuring that holders of driver licences are in any way ‘fit and proper’ persons to hold such licences, indicates that s 27 is concerned with matters of personal unfitness, typically of a physical or mental nature, rather than questions of compliance with the road laws. Put differently, the concept of ‘unfitness’ in s 27 is limited to infirmity; it does not extend to include the notion of impropriety. It was submitted that the power in s 27 is not a freestanding one, but that in order for the Corporation to exercise the power there must be some triggering event which gives rise to cause for concern about the fitness of a person to drive a motor vehicle.
It was submitted that in the present case the respondent had based its decision, not upon any question of the unfitness of the applicant to drive a motor vehicle, but on his past history of non-compliance with road laws and the fact that he had not held a licence for a period exceeding five years. Neither consideration, it was submitted, was properly available to enliven the power under s 27. As a result, the decision to require the applicant to undergo the tests had been affected by jurisdictional error.
Counsel for the respondent contended that the applicant sought to raise a false dichotomy between questions of compliance and questions of competence to drive. It was submitted that it was rational for the Corporation to assess a person’s driving competence after a long period of infringement and not having held a driver licence.
The respondent contended that there was no support in the text of s 27 or its statutory purpose for any requirement that there be a specific ‘trigger’ upon which to found the decision to require a person to undergo a test. Even if there were such a requirement, it was met in the present case because there was a rational relationship between the matters relied on by the respondent and the requirement that the applicant undergo a driving test.
The respondent’s submissions should be accepted. Section 27 confers a discretion on the Corporation, which must necessarily be exercised in accordance with the scope and purpose of both the section and the RSA itself, but which is not confined by the requirement that any jurisdictional fact of the kind proposed by the applicant first be established. There is nothing in its text, context or purpose suggesting otherwise. The fact that the section contemplates that the discretion may be exercised after a person gives information to the Corporation suggesting that a person is unfit to drive does not indicate that it is only in those circumstances that the discretion is enlivened. To the contrary, the words of s 27(1) plainly enable the Corporation to require a relevant person to undergo a test where the Corporation considers that it is desirable to do so. Naturally, as the respondent accepted, that power cannot validly be exercised for an improper purpose or on any irrational basis. However, that is not alleged in the present case.
The submission that the section is concerned with driving competence to the exclusion of questions of compliance with road laws should also be rejected. Section 27, and in particular the expression ‘unfit to drive’, must be read in the light of the purposes of licensing set out in s 17. It is plain from s 17(a) that driver licences are only intended to be held by persons who are competent drivers. A person who is not competent to drive is ‘unfit’ within the meaning of s 27. But that is not the end of the matter. Another of the purposes of licensing in s 17 is to ensure that drivers are aware of safe driving practices and road law.[8] A person who is unaware of safe driving practices or road law is also ‘unfit’ to drive within the meaning of s 27. A person who has repeatedly infringed road laws may rationally be thought not to be aware of those practices or laws or to need reminding about them.[9]
[8]RSA s 17(b).
[9]He or she might also rationally be thought to present a danger to themselves and others in driving motor vehicles, so as to come within s 27(1)(b), but the respondent did not rely on any such conclusion in the applicant’s case.
For these reasons, both a practical drive test and a road law knowledge test are apt to determine whether a person is unfit to drive motor vehicles, by reason of failing either test. It might well be said that not only s 27, but the whole Act, is premised on the assumption that persons who are licensed to drive motor vehicles will have adequate knowledge of road laws and will have passed a driving test. In that context, a person who does not meet either or both of those requirements may be seen to be ‘unfit to drive motor vehicles’ within the meaning of the RSA.
The applicant’s legal arguments relating to the construction of s 27 should be rejected. It becomes unnecessary to consider the extent to which the factual circumstances of the case might have arisen under this ground. Leave to add the ground should be granted, but the ground fails.
Grounds 1 and 3
A considerable amount of time was taken at the trial in relation to the question whether the applicant held a driver licence during the period between 2005 and 2014. Questions were raised and debated regarding the adequacy of the respondent’s record-keeping and the inferences available to be drawn from various documents produced by the respondent and other agencies, including court orders. Most of these matters are no longer in issue. As noted, the trial judge held that there was no evidence establishing that the applicant had a licence at any time in at least the five year period prior to the mistaken issue of a licence to him in February 2014.[10]
[10]Reasons [45].
By grounds 1 and 3, the applicant seeks to impugn the trial judge’s holding that the evidence on which the applicant relied was unpersuasive of the conclusion that he held a driver licence during the period between 2005 and 2014. He submits that the reasons of the trial judge show that he did not take into account that evidence. He also contends that the trial judge failed to deliver sufficient reasons or demonstrate a path of reasoning in this regard. It is submitted that the trial judge, despite referring to some of the evidence led by the applicant, did not engage in any analysis of that evidence.
On the hearing of the application for leave to appeal, counsel for the applicant did not contend that the trial judge should have found that the applicant held a driver licence at any time between 2005 and 2012. Instead, it was primarily argued that the denials of procedural fairness alleged in grounds 4 to 6 had deprived the applicant of the ability to prove that he validly received a licence in 2012. It was submitted that such a finding would have affected the operation of the discretion in s 27(1). The application of the ‘business rule’ in that situation would have been unjustified.
The respondent contended that the onus had been on the applicant to show that he had applied for a licence in 2012 and that one had been issued. However, no such application or licence, and no receipt or other supporting document, were produced. The applicant, in claiming that he renewed his driver licence in late August 2012, did not provide the court with a copy of that licence, nor did he give any evidence to the effect that he received it. He could point to no persuasive evidence that he had been granted a new licence during the relevant period. It was submitted that no record at all supported the claim made by the applicant. Further, it was only alleged by the applicant that he had renewed his licence in August 2012, rather than having applied for a new licence. The respondent pointed out that reg 39 simply does not permit the renewal of a licence when one has not been held for more than five years, and that it was no longer in issue that the applicant had not held a licence between 2005 and 2012.
Nor could it be said that the trial judge’s reasons were insufficient. In light of the fact that there was no probative evidence capable of supporting the contention that the applicant held a licence during the relevant period, it was sufficient for the trial judge simply to record that finding. The judge’s rejection of the evidence provided a sufficient basis to reject that aspect of the applicant’s claim. Alternatively, even if the reasons were found to be insufficient, the respondent submits that this Court should decide the matter for itself and find that the applicant failed to prove his allegation that he obtained a driver licence in late August 2012.
It was further submitted by the respondent, by its notice of contention, that even if the applicant had established that he held a licence in 2012, this would not have demonstrated jurisdictional error on the part of the respondent. Instead, it would have made an error within jurisdiction, rather than one relating to the parameters or limits of its power (there being no parameter or limit to the effect of the ‘business rule’ in s 27).[11]
[11]See Snedden v Minister for Justice (2014) 230 FCR 82, 111 [163] (Middleton and Wigney JJ).
In our opinion, the trial judge was correct to hold that the applicant had not established that he held a driver licence as claimed. His evidence as to the manner in which he had obtained a licence in 2012 at best supported an inference that he had sought to renew a driver licence. As the respondent submitted, such a course was not open under reg 39. There was no evidence at all that the applicant had applied for a driver licence as the law required if he was to be issued with a licence in 2012. The applicant produced no licence, receipt or other document evidencing the transaction he alleged had taken place. In those circumstances, it could not be inferred, on the balance of probabilities, that a driver licence had been issued based on indications to that effect in other, secondary documents. As was accepted at the hearing of the application for leave to appeal, statements in court documents, including orders cancelling the applicant’s licence, could not support such an inference in any event. In so far as the applicant placed reliance on documents produced by the respondent itself, those documents were at best equivocal.
The argument as to the judge’s reasons should also be rejected. While the reasons are brief, it is plain that the judge was wholly unpersuaded by the applicant’s evidence and was not prepared to draw the inference urged upon him by the applicant. The judgment sufficiently discloses the judge’s path of reasoning.[12]
[12]As to the requirement to give reasons, see, eg, Assad v Eliana Construction & Developing Group Pty Ltd [2015] VSCA 53 [30]–[37] (Redlich, Kyrou and McLeish JJA).
In any event, the argument of the respondent on his notice of contention should be upheld. For the reasons already given, the power in s 27(1) is a broad one. It does not need to be enlivened by the satisfaction of any ‘trigger’ or jurisdictional fact, other than that the person in question is a ‘relevant person’. That is not in issue here. It follows that, even if the respondent was incorrect in its opinion that the applicant had not held a driver licence between 2005 and 2014, this would have been an error made as to a factual question in the course of exercising its jurisdiction. There would have been no excess of jurisdiction (or any error of law on the face of the record). As such, such an error would not have founded relief in the nature of certiorari.
Proposed grounds 4 to 6
Counsel for the applicant contended that the remaining proposed grounds of appeal all pointed to denials of procedural fairness to the applicant, as a self‑represented litigant before the trial judge, which had deprived him of the opportunity to establish that he held a licence in 2012. The short answer to these proposed grounds is that, for the reasons already given, establishing such a fact would not have availed the applicant. On that basis, leave to appeal on these grounds should be refused. However, since the matters were fully argued, it is desirable to say something briefly about these grounds.
Ground 4 contends that the trial judge should have allowed a witness by the name of Connie Dalama to be cross-examined by the applicant. Ms Dalama had on 30 April 2015 sworn an affidavit in the proceeding between the applicant and the respondent which was being heard together with the current matter. The respondent did not rely on or read her affidavit. It therefore did not form part of the evidence in that proceeding. Nor, therefore, was it ever evidence in the present proceeding. Counsel for the applicant submitted that, notwithstanding this fact, the trial judge ought to have permitted the applicant to cross-examine, or perhaps only to examine, Ms Dalama in relation to the record-keeping of the respondent. It was pointed out that Ms Dalama had been present in court (on the fourth day of the hearing) and that the applicant had expressed a wish to question her. Reliance was placed on the duty of the court to assist self-represented litigants.[13]
[13]See Noone v Operation Smile (Australia) Inc (No 2) [2011] VSC 153 [13] (Pagone J).
The respondent submitted that the trial judge had been entitled to refuse to permit Ms Dalama to be examined (or to be cross-examined), and that in any event the applicant had not made clear that this was his intention. It was pointed out that this issue arose toward the end of four days of hearing, spread over several months, and that to have permitted the applicant to lead further evidence would have been highly disruptive to the trial.
In our opinion, the judge was fully entitled to proceed without hearing evidence from Ms Dalama. Even assuming that it was not necessary for the applicant to make a clear application to question Ms Dalama, and that the judge could have intervened to require her to give evidence, the need for orderly management of the trial meant that it was well open to the judge to form the view that it was long past the time when further evidence could be adduced by either side.
Ground 5 contends that the applicant was deprived of the opportunity to inspect documents that had been subpoenaed in the proceeding. The applicant had sought documents produced under a subpoena issued by the respondent to the Chief Commissioner of Police. He was denied access to these documents because he did not pay the required fee. An affidavit of the applicant deposing to these matters was sought to be filed on 25 May 2015. The trial judge did not allow the applicant to rely on the affidavit, nor was he given access to the subpoenaed material. The applicant claims that the trial judge erred by not directing the Registry to provide him with an opportunity to inspect the subpoenaed documents without paying the prescribed fee.
The respondent submits that the applicant did not seek at trial an order to the effect now sought on appeal. Further, the subpoena was not issued in the present proceeding, and the documents sought were not relevant to that proceeding. The fact that the applicant did not receive access to the subpoenaed documents therefore did not occasion any unfairness.
This ground should be rejected. It is sufficient to observe that it has not been shown how the documents in question could have had any bearing on the issues decided in the relevant proceeding.
Finally, ground 6 contends that the trial judge erred by not accepting into evidence the affidavit dated 25 May 2015, mentioned above. The applicant submits that the evidence contained in the affidavit was relevant (and therefore admissible), as it contained evidence of the respondent’s inaccurate records. That evidence was said to be relevant because it went to the question whether the applicant held a driver licence during the relevant period.
The respondent notes that an Associate Judge made orders requiring the applicant to file any further affidavits by 30 January 2015. After two days of hearing in the trial, the trial judge made orders allowing the respondent to file a further affidavit. He did not make any similar order in respect of the applicant. The applicant, therefore, had no right to file the affidavit. Moreover, allowing him to do so would prejudice the respondent, as the applicant sought to file the affidavit the day before the resumption of the trial for its final day. Lastly, the respondent contends that, when the trial judge indicated his inclination to reject the application for leave to file the affidavit out of time, the applicant merely said ‘Yes, your Honour. I am in your Honour’s hands as to that issue’.
The short answer to ground 6 is that it was a matter within the discretion of the trial judge whether to permit the applicant to rely on additional evidence at a very late stage of the trial. The applicant had been permitted to range widely in his claim that the records of the respondent were not able to be relied on and it was not shown that the affidavit was probative of any fact in that regard so as to make it necessary that it be admitted after the evidence had been heard and extensive submissions already made. In all the circumstances, it has not been shown that the judge erred in not allowing the affidavit to be filed.
Conclusion
Leave should be given to rely on proposed ground 7. Leave to appeal should be granted on that ground only, but otherwise refused. The appeal should be dismissed.
It should be recorded that the Court was greatly assisted by the involvement of pro bono counsel for the applicant in this matter.
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