Mayne v M T T (No 1) - [1991] TASSC 81

Serial No 65/1991
List "A"

COURT: SUPREME COURT OF TASMANIA

CITATION: Mayne v M T T (No 1) [1991] TASSC 81; A65/1991

PARTIES:  MAYNE
  v
  M T T

FILE NO/S:  62/1982
DELIVERED ON:  23 August 1991
JUDGMENT OF:  Underwood J

CATCHWORDS:

Evidence — Course of Evidence — Re-opening case view not evidence — Oversight by counsel not calling evidence to prove what was seen on view — Factors relevant to discretion.

REPRESENTATION:

Counsel:
           Appellant:
           Respondent:
Solicitors:
           Appellant:
           Respondent:

Judgment Number: A65/1991
Number of paragraphs: 5

Serial No 65/1991
List "A"
File No 62/1982

MAYNE v THE M T T (NO 1)

REASONS FOR JUDGMENT UNDERWOOD J

23 August 1991

This application to reopen the plaintiff's case to call further evidence was made after the defendant's submission that there is no case to answer and election to call no evidence. No ruling has been given upon the submission of no case to answer.

The evidence sought to be led is the visibility of the plaintiff to the defendant's driver as he drove the bus along the street towards the point of impact. I have a discretion to grant the application. The existence of a general discretion to allow evidence to be given "late in a cause" was recognised in Williams v Davies 149 ER 481 at p482. There is no basis for suggesting that the exercise of the discretion is subject to any specific constraints. See Nicholl & Breeze v Bower 117 ER 1090. The justice of each case will dictate the appropriate manner in which the discretion should be exercised. I reject any suggestion that cases such as Watson v Metropolitan (Perth) Passenger Transport Trust [1965] W.A.R. 88 and Schuster v Sawtschenko (No 2), Chambers J 10/70 lay down criteria which must be satisfied before the application can be granted. All the circumstances of each case must be taken into account. This is illustrated by Hughes v Hill [1937] SASR 285 in which case the determining factor was the deliberate decision made during the course of trial not to call the evidence that was later sought to be called after the defendant had given evidence. In that case Cleland J said at p287:

"In any case in which evidence had been omitted through inadvertence, or which was not known to the plaintiff's counsel and could not by due diligence have been discovered before he closed his case, I would not hesitate to allow further evidence to be given ..."

The defendant opposed the application. Learned counsel submitted that if the order sought is made the defendant will suffer prejudice because an election was made to call no evidence and he had ready a witness from Queensland whom he sent away uncalled.

The defendant also submitted that if the application is allowed, the defendant would be deprived of an opportunity to win the case on the submission of no case to answer. It was contended that the thrust of the submission of no case was that there was no…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mayne v M T T (No 1)

Details

AGLC: Mayne v M T T (No 1) [1991] TASSC 81
Case: [1991] TASSC 81
Decision Date: 23 August 1991

CaseChat Overview and Summary

The Supreme Court of Tasmania heard the case of Mayne v M T T (No 1), which involved a dispute regarding the plaintiff's ability to reopen their case to introduce additional evidence. The plaintiff, Mayne, sought to present evidence concerning the visibility of the plaintiff to the defendant's bus driver at the time of the collision. The defendant, M T T, opposed the application, arguing that granting it would result in prejudice as they had elected not to call evidence and had sent away a witness from Queensland. The court needed to determine whether it had the discretion to allow the plaintiff to introduce new evidence late in the proceedings.

The legal issue before the court was whether the plaintiff should be permitted to adduce additional evidence regarding the visibility of the plaintiff to the defendant's bus driver prior to the collision. The court had to consider the exercise of its discretion in allowing such evidence and whether there were any specific criteria that must be satisfied before granting the application. The court also needed to weigh the potential prejudice to the defendant against the justice of the case.

The court found that it had the discretion to allow the plaintiff to introduce new evidence, as established in Williams v Davies. It rejected any suggestion that specific criteria must be satisfied before granting the application, stating that the justice of each case would dictate the appropriate manner in which the discretion should be exercised. The court found that the failure to adduce the evidence of the view of a driver in the position of the defendant's driver was entirely due to inadvertence and that the justice of the case still required the application to be granted. The court granted the application, allowing the plaintiff to adduce evidence regarding the view that was open to a driver approaching the point of impact along Currajong Street at the relevant time.

The court's final order was to grant the plaintiff's application to adduce evidence regarding the view that was open to a driver approaching the point of impact along Currajong Street at the relevant time. The defendant was given leave to adduce any evidence it wished to adduce or to make any submissions it wished to make. The court did not make a ruling at that stage on the submission of no case to answer, stating that if such a submission was made again, it would have to be considered in the light of all the evidence that the plaintiff adduced.

Orders