Kovacevic v Coleman

[2015] NSWSC 1939

Supreme Court

New South Wales

Medium Neutral Citation:	Kovacevic v Coleman [2015] NSWSC 1939
Hearing dates:	8 December 2015
Date of orders:	08 December 2015
Decision date:	08 December 2015
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Application refused and decline to exercise discretion to require the plaintiff to give his evidence in chief orally
Catchwords:	CIVIL – evidentiary statement of plaintiff – objection to statement standing as evidence in chief – where no direction made under r 31.4 UCPR – whether Practice Note CL5 stands as a direction for purpose of the rules – application of just, quick and cheap principles CIVIL – evidentiary statement of plaintiff – objection to statement standing as evidence in chief – exercise of powers to control proceedings whether evidence should be given orally – where there is substantial issue as to plaintiff’s credit
Legislation Cited:	Civil Procedure Act 2005 (NSW); Uniform Civil Procedure Rules 2005 (NSW)
Texts Cited:	Supreme Court Practice Note CL5
Category:	Procedural and other rulings
Parties:	Jamie Kovacevic (Plaintiff); Colemans Group (Australia) Pty Ltd (First Defendant); Workers Compensation Nominal Insurance (Second Defendant)
Representation:	Counsel: G.R. Graham (Plaintiff) G. Laughton SC with A. Parker (First Defendant) I. Roberts SC with A. Combe (Second Defendant) Solicitors: Peter Rugerri & Associates (Plaintiff) Hicksons Lawyers (First Defendant) Rankin Ellison Lawyers (Second Defendant)
File Number(s):	2012/387889

ex tempore judgment (revised)

1. This is a claim for personal injuries sustained by the plaintiff in an industrial accident which occurred on 28 April 2011. The defendants are a company for whom he subcontracted and the Workers Compensation Nominal Insurer standing in the place of his now deregistered corporate employer. The proceedings commenced in the District Court of New South Wales and were transferred to this Court in or about March 2015. The plaintiff has served an evidentiary statement dated 5 November 2015 which, with one exception which Mr Graham of counsel has referred me to, is intended to contain the whole of his evidence in chief.

2. Mr Laughton of senior counsel, who appears for the first defendant, with Mr Parker of counsel, objects to the evidence in chief of the plaintiff being given in this form. Mr Roberts of senior counsel, who appears with Mr Combe, for the second defendant supports Mr Laughton’s position and substantially adopts his submissions. Mr Laughton argues that in the absence of a direction being made by the registrar at the directions hearing requiring the parties to serve their written statements of witnesses, r 31.4 of the Uniform Civil Procedure Rules 2005 (NSW) is not engaged. That rule provides:

31.4 Court may direct party to furnish witness statement

(1) The court may direct any party to serve on each other active party a written statement of the oral evidence that the party intends to adduce in chief on any question of fact to be decided at any hearing (a witness statement).

3. When such a direction is made, if a party calls the witness at the hearing, the witness’ statement is to stand as the whole of his evidence in chief provided the witness testifies as to the truth of the statement. Leave of the court is required before the witness can give any further evidence.

4. It is accepted that no direction under cl 27 of Practice Note CL5 was given at any directions hearing after the case was transferred to this Court from the District Court of NSW. Mr Graham, however, points out that cl 28 of the Practice Note provides that the plaintiff is to provide each party with an evidentiary statement. That requirement is supposed to be complied with at the first directions hearing. In fact, in this case, it was not attended to until after all directions hearings had taken place and, after the matter had been set down for trial.

5. I accept that the Practice Note applies to proceedings which have been transferred to the Common Law Division of the Supreme Court (see cl 18 of CL5) and that late compliance with the requirements of the Practice Note is better than none and, accordingly, I accept that the statement was provided in compliance with the Practice Note. The question that then arises for determination is whether the content of Practice Note CL5 stands, as it were, as a direction to the plaintiff for the purpose of r 31.4. In deciding that question I accept Mr Graham’s submission that the rule has to be interpreted in accordance with the requirements of ss 56 to 60 of the Civil Procedure Act 2005 (NSW) and, in particular, by reference to an application of the overriding purpose which is to facilitate the just, quick and cheap resolution of the real issue in proceedings.

6. “Just, quick and cheap”, of course, is a portmanteau phrase incorporating composite ideas. However, focusing on the aspect of cheap, which I take to be a reference to cost-efficiency and proportionality, it seems to me that the preferred interpretation of r 31.4 is that the requirements of cl 28 of CL5 stand as a direction to the plaintiff to serve a statement for the purpose of that rule.

7. That being so the plaintiff is entitled, subject as always to the court's general discretion, to rely upon the statement as his evidence in chief. The practice in the Common Law Division is well known to all parties and in many ways adopting practices which are much like those one is familiar with in other jurisdictions, such as the Equity Division, is for the purpose of, essentially, saving time in court. That is not to say that is the sole purpose, but that purpose is achieved in a number of ways. First, the requirement that the plaintiff provide a statement goes beyond the mere formal averment of material facts and the provision of particulars. It puts the responding parties in a position to know exactly what it is that will be said against them.

8. Secondly that should lead to efficiency in terms of preparation of cross‑examination and of evidence required to meet the plaintiff’s actual evidence, not just his case in a general sense. Thirdly, another way in which efficiencies are obtained is that the cost of eliciting, marshalling and ordering the evidence of witnesses, in this case the plaintiff, is removed from the actual hearing time and is undertaken as part of the preparation of the case for hearing.

9. t seems to me that it would set the requirements of the modern practice at nought if parties were required, in accordance with the provisions of the Practice Note, and in this case the plaintiff, to go to what is considerable expenditure of time and professional effort to comply with the Practice Note and at the hearing the judge refused to permit the tender of the statement.

10. For these reasons I am of the view that compliance with cl 28 of the Practice Note constitutes a direction engaging the operation of r 31.4.

11. The second basis upon which Mr Laughton objects, which is in effect an application that I exercise my powers to control the proceedings to direct that the evidence in chief for the plaintiff be given orally, is that there is a substantial issue as to the plaintiff's credit, I am informed by counsel. To illustrate this I am informed that there is observation or surveillance evidence to be given and doubtless the plaintiff will be cross-examined by reference to what is shown on the film. The argument is put with some force that it may be difficult for me to make an assessment of the plaintiff's credit if I deprive myself of the opportunity of observing his demeanour in the witness box whilst he gives his evidence in chief and if I am exposed to it only when he is being tested in cross‑examination. I have some sympathy for the argument however, again, in exercising my discretion I am driven back to the overriding purpose.

12. In other divisions and other courts where evidence in chief is always taken on affidavit or by way of witness' statement, cross-examination as to credit frequently occurs. Indeed there would be few cases in this Division that go to trial where there would not be some credit issues. Were I to accede to the application to require the plaintiff to give his evidence in chief orally it would, I think, as I have said already, set at nought the requirements of the Practice Note and of the rules which are designed to promote efficiency and enhance fairness in the proceedings. This is to say nothing of the costs which may be wasted.

13. For those reasons I decline to exercise my discretion to require the plaintiff to give his evidence in chief orally and I refuse Mr Laughton's application in that regard.

**********

Decision last updated: 16 December 2015