Mures Fishing Pty Ltd v Holloway v Mures Fishing Pty Ltd

[2024] TASSC 73

[2024] TASSC 73

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Mures Fishing Pty Ltd v Holloway v Mures Fishing Pty Ltd [2024] TASSC 73
PARTIES:	MURES FISHING PTY LTD
v
HOLLOWAY, Patrick Gerrard and anor
v
MURES FISHING PTY LTD and anor
FILE NO:	444/2020
DELIVERED ON:	26 November 2024
DELIVERED AT:	Hobart
HEARING DATE:	26 November 2024
JUDGMENT OF:	Marshall AJ
CATCHWORDS:

Courts and judges – Judges – Effect of ceasing to hold office – Continuation of proceedings before
other judges and other matters – Six-day trial heard by Geason J – Required hearing date for final

submissions – Geason J tendered resignation – Interests of justice for evidence to be heard afresh.

Aust Dig Courts and Judges [65]

REPRESENTATION:

Counsel:

Plaintiff:	B McTaggart SC, N Willing
Defendants:	C Gunson SC

Solicitors:

Plaintiff:	Murdoch Clarke
Defendants:	Abel Business Solutions

Judgment Number:	[2024] TASSC 73
Number of paragraphs:	8

Serial No 73/2024 File No 444/2020

MURES FISHING PTY LTD v PATRICK GERRARD HOLLOWAY v MURES

FISHING PTY LTD

REASONS FOR JUDGMENT MARSHALL AJ
26 November 2024

1   On 20 June 2024, Porter AJ ordered in respect of this matter as follows, that:

"Another judge of the court take over the trial of this and conclude it in any way deemed
appropriate to that judge."

2             Following on from that order, Blow CJ allocated the matter to me. The matter had previously been managed and heard by Geason J to the point where after a six-day trial and written submissions, the parties were awaiting a hearing date from Geason J to enable them to make some final oral submissions. In the meantime, Geason J was on administrative leave. Early last week, he tendered his resignation. It now falls to me to determine how the action is to be concluded.

3             I consider that Porter AJ did not intend that I necessarily finish what Geason J had started. His reasons for making that order are apparent from his comments at the hearing contained in the transcript of the hearing which include an indication that future conduct of the proceeding is a matter for the judge taking over the case. The parties, by their submissions this morning, agree that is now a matter for me to decide how the case proceeds. At the outset, it should be stated for the public record that it is regrettable that Geason J was unable to conclude this matter after the parties had expended much time and expense in the hearing before him.

4             As counsel for the plaintiff have submitted, the guiding principle to determine what happens in this matter is what justice demands in the particular case. In deciding that question it is important, not only to have regard to the costs already expended in the proceeding, but also to the attitude of the parties and other matters relevant to the exercise of my discretion. The plaintiff contends that with suitable directions designed to overcome any difficulties with aspects of the trial, as it ran before Geason J, the proceeding can resume in an amended way before me. The defendants submit that the matter should start afresh, given the issues of credibility that arise in respect to at least one significant witness and the fact that his credibility would be an important question for the Court to determine. The defendants also intend to have the Court revisit evidentiary rulings made by Geason J, some of which it contends are not adequately stated on the transcript or not stated at all other than the result.

5             Having given the matter considerable thought, I have formed the view that it is in the interests of justice for the evidence to be heard afresh. It would give me the opportunity to see and hear the witnesses give evidence and assist the Court, especially in relation to any issues concerning their credibility.

6             Having had the experience of what has now become in colloquial terms a 'trial run' before Geason J, it is likely that the parties can refine the evidence they wish to place before the Court in any hearing starting afresh. In contemplation of the possibility of the matter being heard afresh, the Court had earlier, in consultation with the parties, set down the week of 3 February 2025 for that matter to be dealt with substantially.

7             It would assist in the final resolution of the matter if an order could be made for the trial to be by affidavit, meaning that the affidavits constitute the evidence-in-chief of any witnesses subject to the right to seek to ask additional questions in chief. It would be of additional assistance for the timetable

2   No 73/2024

for the filing and serving of affidavit material to also include a timeline for the filing of any written
objections to affidavit material.

8   The orders of the Court are as follows:

(a)	The action is to be heard afresh commencing on 3 February 2025 at 10 am, with that week reserved for the proceedings.
(b)	The trial will be conducted by way of affidavit.
(c)	The parties are to confer as soon as possible and agree on a timetable for the filing of affidavits and objections to affidavits.
(d)	Costs of the proceedings are reserved.
(e)	Parties have liberty to apply.