N M Rural Enterprises Pty Ltd v Rimanui Farms Ltd
[2011] NSWSC 1561
•15 December 2011
Supreme Court
New South Wales
Medium Neutral Citation: N M Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2011] NSWSC 1561 Hearing dates: 13 & 14 December 2011 Decision date: 15 December 2011 Jurisdiction: Common Law Before: Harrison J Decision: 1. Grant leave to the plaintiff to reopen its case in reply to call Michael Skaines.
2. Plaintiff to pay the costs of and incidental to the application.
Catchwords: PROCEDURE - application by plaintiff to reopen its case in reply - whether in the interests of justice - leave granted Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005Cases Cited: Aon Risk Services Australia Ltd v ANU [2009] HCA 27; (2009) 239 CLR 175
ASIC v Rich [2006] NSWSC 826
Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473
Gaskin v Ollerenshaw [2010] NSWSC 788
Golden Oceans (NSW) Pty Ltd v Evewall Pty Ltd [2009] NSWSC 674
Hines Exports Pty Ltd v Mediterranean Shipping Co SA [2001] SASC 311; (2001) 80 SASR 268
Lontav Pty Ltd v Pineross Custodial Services Pty Ltd (No 2) [2011] VSC 485
Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1
Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256
State of New South Wales v Public Transport Ticketing Corporation (No 3) [2011] NSWCA 200
State of Tasmania v Clements [2010] TASSC 59
Urban Transit Authority of NSW v Nweiser (1992) 28 NSWLR 471
Vaw (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; (2003) 58 NSWLR 631Category: Procedural and other rulings Parties: N M Rural Enterprises Pty Ltd (Plaintiff)
Rimanui Farms Ltd (First Defendant)
Gil Gil Farming Pty Ltd (Second Defendant)
Lloyds Syndicate No 1243 (Third Defendant)Representation: J E Maconachie QC with S B Docker (Plaintiff)
T J Hancock with J P Donohoe and A T Martin (First Defendant)
B Loukas (Second Defendant)
G T W Miller QC with D A Lloyd (Third Defendant)
TurksLegal (Plaintiff)
Webb and Boland (First Defendant)
Doyle Wilson (Second Defendant)
Riley Gray-Spencer (Third Defendant)
File Number(s): 2003/93179
Judgment on application to reopen plaintiff's case in reply
HIS HONOUR : By notice of motion filed in court on 13 December 2011, the plaintiff seeks an order, among others, that it be given leave to reopen its case in reply. Briefly, this application is made in order to call evidence from Mr Michael Skaines, a loader or mixer employed by Pay's Air at the Krui airstrip in November 2000, who assisted Mr Oliver Taylor to load chemicals into aircraft for spraying on fields of cotton and sorghum sown on Telleraga by the plaintiff. Mr Taylor has given evidence that one of the aeroplanes involved was loaded with a herbicide containing glyphosate as the active ingredient instead of microsol, a foliar fertiliser, and that Mr Skaines had conversations with Mr Taylor about this. The plaintiff has foreshadowed that Mr Skaines denies that he either made any mistake of the sort alleged by Mr Taylor or that he had a conversation with him in which he admitted it.
The defendants all unsurprisingly object to the application to reopen. The grounds of their objection are referred to in more detail later in these reasons.
The plaintiff relies upon two affidavits of its solicitor Mr Michael Iacuzzi sworn respectively on 12 and 14 December 2011. They were read without objection. Mr Iacuzzi was cross-examined. The plaintiff also tendered an affidavit of Mr Skaines, sworn 10 December 2011, upon the ground that it will be read in reply in the substantive proceedings if leave to reopen were ultimately granted and that it contains a summary for present purposes of what the plaintiff anticipates the evidence of Mr Skaines would be in that event. In addition, Mr Maconachie QC for the plaintiff made a statement in the course of opening the application, in which he explained the reasons for it, to which some reference ought also to be made.
Mr Iacuzzi's 12 December 2011 affidavit
Mr Iacuzzi is a solicitor with the conduct and carriage of this litigation on behalf of the plaintiff. On 5 November 2010 Mr Moylan wrote to him in terms that included the following:
"We refer to the above and advise that we are unable to serve outlines of the intended evidence of the chemical mixers, Messrs Skaines and Taylor. We have not been able to properly locate either of these gentlemen and therefore we are unable to provide an outline of their evidence.
We are arranging for subpoenas to be filed that will require both Mr Skaines and Mr Taylor to appear at the resumption of the hearing..."
Mr Iacuzzi said that in the light of the evidence served by the defendants from Mr Ghirardello concerning the case suggesting that Pay's Air sprayed the wrong substance on Telleraga, he was of the view that he should talk to the people who were involved in loading the job. Mr Ghirardello had earlier given evidence that he had spoken to Mr Taylor, who had allegedly confirmed that Mr Taylor had loaded aircraft that had sprayed Telleraga on 23 November 2000. Mr Iacuzzi was also aware that Mr Skaines was a mixer employed by Pay's Air at that time.
Mr Iacuzzi said that although he was interested in talking to both Mr Taylor and Mr Skaines, he thought that Mr Taylor was the more important because Mr Ghirardello had interviewed him in February 2001 and he was the one who Mr Iacuzzi understood was going to be called by the defendants as a witness.
Mr Iacuzzi ultimately spoke to Mr Skaines by telephone on 29 November 2010. He gave Mr Iacuzzi sufficient information for him to prepare a draft affidavit. That draft is an annexure to Mr Iacuzzi's affidavit. Portion of that draft is as follows:
" Glyphosate and Microsol
18. I recall glyphosate was a chemical that was bright blue in colour with a distinctive smell. When mixed with water, glyphosate would be a little less blue but it would still retain its bright blue colour. The viscosity of glyphosate is different to Microsol and there is a distinct difference in how easily the two chemicals are pumped.
19. I recall that Microsol was a clear liquid, which was sometimes brown or muddy looking and very watery. I am unable to recall the smell of Microsol.
20. I have only ever seen glyphosate stored in 1000 litre shuttles or 20 litre drums (known as Enviro-drums) which come with special connections. I have never seen glyphosate delivered in 200 litre drums, such as those shown in photo 5 of annexure MS-A.
21. There would have been absolutely no way that I could have accidentally pumped glyphosate into a vat instead of Microsol and then pumped the Glyphosate into a plane without noticing. If glyphosate, instead of Microsol, was pumped into a mixing vat, it would be immediately obvious that the chemical was glyphosate due to its distinctive colour, smell and viscosity.
22. I would have also noticed that the glyphosate was inside the plane's hopper by looking through the window of the hopper of the aircraft and seeing that it was blue."
A copy of that draft affidavit was sent on 30 November 2010 to counsel retained by the plaintiff. The matter was listed for further hearing before me between 13 December and 16 December 2010, and Mr Iacuzzi formed the view that Mr Skaines may need to attend court to give evidence. However, at a conference with counsel on 2 December 2010 it was decided "that Mr Skaines' draft affidavit did not add anything to Mr Taylor's evidence, so it was not necessary to call him as a witness."
Mr Taylor gave evidence on 15 December 2010 generally in accordance with his affidavit dated 27 November 2010. Mr Iacuzzi did not pursue the question of Mr Skaines giving evidence, although he had been issued with a subpoena to attend court for that purpose.
On 29 September 2011, Mr Iacuzzi sent an email to Mr Maconachie in which he advised that Mr Taylor's "recent assertions are, to say the least, unexpected to me". He went on to say "in light of recent events, I'll call Skaines today and see if he is free to discuss the matter". Mr Maconachie replied by email the same day in terms that included the following:
"I can think of no basis upon which I would want to call Skaines; his affidavit, or draft affidavit, which I have read asserts that he has no specific recollection of what happened on that particular day, and he speaks from practice and habit.
Invariable practice and habit is always admissible, but in circumstances like this it is likely to be of no assistance whatsoever. That is because it seems Oliver Taylor is going to say that Skaines made an error and there was a cover-up, at least by Taylor, but I cannot see how Taylor could have come to know of that mistake without Skaines having a conversation with him.
By calling Skaines, he can be cross-examined to prove what might otherwise be extremely difficult for the defendants to prove out [of] the mouth of Taylor.
This is a very unusual situation; I would rather you did not speak to Skaines until we have spoken to Taylor at 2pm. I want to find out from him how he asserts he came to know of the mistake. I want to know whether he asserts he told Pays and if so when and in what terms."
Mr Maconachie advised Mr Iacuzzi to speak to Bill Harrison, the pilot, if that could be arranged. However, this apparently did not occur, as he could not be found.
Mr Taylor was recalled to give evidence on 30 September 2011. It is common ground that he resiled from what he had originally said and gave evidence that a mistake had been made in loading the aircraft for spraying Telleraga and that Mr Skaines was involved in what had taken place. On 10 October 2011 Mr Skaines telephoned Mr Iacuzzi unannounced. He said to Mr Iacuzzi, "I heard that Ollie Taylor turned up in Court and changed his evidence and said that I stuffed up the mixing job for Telleraga". Mr Skaines did not reveal how he came to find out that Mr Taylor had changed his evidence and he was not then asked about it.
On the same day Mr Iacuzzi sent an email to counsel summarising the telephone conversation he had had with Mr Skaines. Part of that email is as follows:
"During the telephone conversation, Mr Skaines volunteered to me that ' on that day everything was done by the book and there is no way any glyphosate was pumped into the plane '. This is consistent with the telephone discussions I had with Mr Skaines approximately 1 year ago."
Some time between 10 October 2011 and 1 November 2011 Mr Maconachie advised Mr Iacuzzi that Mr Skaines should not be called to give evidence. Mr Iacuzzi advised Mr Skaines accordingly. That advice would appear to have been given in the course of a telephone conversation between Mr Iacuzzi and Mr Skaines on 1 November 2011. Mr Iacuzzi's file note of that conversation contains the following notation:
"What's happening w/ case??
Is he needed??
The pl does not require him for evidence.
His call whether he talks to W&B - no subpoena yet
Final submissions being prepared so I think it's too late for his evidence.
Reminded me that nothing was added to planes except microsol - no G added."
However, during a conference with Mr Maconachie on 9 December 2011, Mr Maconachie advised Mr Iacuzzi that he then considered that the plaintiff needed to call Mr Skaines to give evidence. A copy of Mr Skaines' affidavit made 10 December 2011 was sent to the defendants on the following day.
Mr Iacuzzi's 14 December 2011 affidavit
Nothing deposed to by Mr Iacuzzi in this affidavit is critical for present purposes and I make no further reference to it.
Cross-examination of Mr Iacuzzi
Mr Iacuzzi was cross-examined thoroughly by Mr Hancock for the first defendant. Much of this cross-examination lay the groundwork for the detailed written submissions upon which the first defendant later relied. These are referred to below. One matter that should be noted is an email forwarded to Mr Iacuzzi by Mr Maconachie on 25 March 2011. It was produced by the plaintiff in a redacted form in response to a notice to produce issued by the first defendant. It is as follows:
"In a sense it is a good outcome: it will forestall what otherwise might be seen by the Court of Appeal when judgment in the case is finally pronounced as miscarriage of justice. Further, it must be that the evidence to be elicited from Mr Taylor is evidence in chief, even if elicited by the techniques of cross-examination. I am of the same mind as Sean Docker (expressed to Michael and myself as we left the courthouse and the interdict) - Mr Taylor is almost certain to deny any proposition to the effect that glyphosate was mistakenly loaded into aircraft.
Michael, you mentioned to me after we left Sean that the other loader (his name presently escapes me but may be Mick Swain [sic]) had been spoken to: that necessarily assumes that his whereabouts is [sic] known (or was recently known) - for more abundant caution he should be pressed with the assistance of the loading documents and the like lest he has to be called in reply. I would have to be dragged kicking and screaming, with firebrands in close proximity to aspects of my being that are very important to me, to a point of morbid insensibility before I could be persuaded to call that further witness, but I'm an old Boy Scout and one should be prepared for any eventuality in a case like this."
No other documents produced by the plaintiff were tendered in evidence. The plaintiff's claim for privilege in respect of a number of the documents appeared at one stage to be controversial but in the end was not the subject of any contest.
Mr Skaines' affidavit
For the purposes of this application only, and in the light of the foregoing, Mr Skaines' affidavit is not controversial. He recites a number of extracts from the transcript of Mr Taylor's evidence before me on 30 September 2011. He said he did not recall all of the details of the Telleraga job from Krui airstrip on 23 November 2000 but did not recall that anything went wrong with it. He said, "[i]f anything serious went wrong with the job I would remember it". He denied having any conversation with Mr Taylor of the sort described by Mr Taylor in his evidence. He denied telling Mr Taylor that he had "made a major fuck up here" or anything like it. He denied making any mistake in the nature of loading glyphosate in an aircraft, which should have been fertiliser or telling Mr Taylor that he had done so. He also denied that there were any containers of glyphosate anywhere near the mixing station for the Telleraga job. He had no recollection of there being any balancing of the glyphosate records done on that day. He denied that glyphosate was loaded into aircraft and sprayed on Telleraga.
Mr Taylor also gave evidence that Mr Skaines said to him, "Can you fix it for me because I don't want to lose my job" and that Mr Taylor replied, "[l]eave it with me and I'll cover it up for you". Mr Skaines denied any such conversation. He denied asking Mr Taylor to cover anything up for him or that there was anything to cover up. He said, "[i]f there had been a mistake like loading glyphosate instead of fertiliser for the Telleraga job, that would have been a serious thing and I would have remembered it very clearly". He went on to say, "[b]ut it never happened and there was no cover up".
Mr Skaines' affidavit contained other references to Mr Taylor's evidence dealing with the colour and odour of glyphosate and fertiliser, and to the use of mixing vats and the emptying of containers. It is unnecessary for present purposes to record the details of this evidence. Mr Skaines insisted, however, that upon the basis of the comparative smell, colour and viscosity of glyphosate and fertiliser, "[t]here is no way I would have missed it if the product in the containers I was using for the Telleraga job was glyphosate instead of liquid fertiliser". He agreed with Mr Taylor's comment that he and Mr Taylor and the pilots "would have had [to be] 150% idiots to have missed it".
Mr Maconachie's remarks
The circumstances that touch and concern the plaintiff's original decision not to call Mr Skaines, and the later decision to do so, are important for present purposes. The authorities, referred to below, draw attention to the significance of decisions of this type and whether they have or have not been made with the benefit of counsel's advice and to the forensic context in which they have been made. It was with an acute and obvious appreciation of these principles that Mr Maconachie made the following statement from the bar table as part of the present application:
"MACONACHIE: I made a forensic decision, a deliberate decision, to not call Mr Skaines, as recorded in the affidavit of Mr Iacuzzi, on two occasions. When, between the 10 October and 1 November I spoke to him - he can't find his diary note and I have no recollection - I was involved deeply in the preparation of another case in Canberra, but there is no doubt I made a forensic decision to not call him, notwithstanding that which Mr Taylor had said on the second occasion that he gave evidence before you.
I did so for a number of reasons, one of which was the point in time at which this case had reached and the staggers and stumbles that it had gone through to get there, and that weighed heavily with me. Secondly, I was, at that point in time, content to rely on the propositions that I advanced in my submissions in chief which were delivered in writing before Mr Taylor was cross examined, and which I advanced orally, supplemented orally when I spoke to your Honour on Monday and Tuesday of last week; that is to say, that there were serious reasons for not accepting Mr Ghirardello and serious reasons, more serious reasons perhaps, for not accepting Mr Taylor.
During the submissions made by my learned friend to my immediate right, Mr Hancock, I did not change my view about that being the appropriate course for the benefit of the plaintiff to take. However, your Honour will recall that what was put was a Jones v Dunkel submission against me for not calling Mr Skaines and I had, and have an answer to it. That answer was in part delivered by Mr Lloyd when he gave his submissions, made his submissions on Friday morning. And he did two things which caused me to let me tell you, I take absolutely no point with the propriety or otherwise of Mr Lloyd's submissions, I have the highest and deepest respect for him and I don't for a moment suggest that he did anything that he ought not to have done; indeed, he made a submission which was pivotal in my thinking and that was that there was no Jones v Dunkel submission to be made, but that in the way in which the matter had progressed, it behove me to call Mr Skaines to answer that which Mr Taylor had said. That was the burden of what he had to say and I make no bones about it, the way it was put caused me to rethink my position because, as your Honour well knows, in the way in which a court case goes, the burden of adducing evidence and answering it, ebbs and flows and that was the burden of what he was saying.
The second matter that impressed itself firmly upon me and which I did not make any decisions about until lunchtime on Monday, but something that was going through my mind as he made his submissions, was that this case has the potential at least to go off on a question of who didn't call evidence, rather than who did. Yeldham J, a very good trial judge, used to say he was going to decide the case on the evidence that had been called, not on the evidence that hadn't been called. But the submissions put by Mr Lloyd on Friday caused me to think - and this is a compliment to him, I think - that there was a real risk that your Honour might be required to accede to his submission that once Taylor had been called, without Skaines being called, your Honour only had one course open to you. That was the burden, as I understood, of what he said.
It would be a tragedy, in my submission, if a decision forensically made by me, a wrong one as it turns out, was to decide this case one way or the other and that's why, under some pressure I might say, that is from my junior and solicitor, logical pressure, that I finally determined some time on Friday afternoon that I had to give the advice that I did give that I should make this application so that your Honour would have before you the evidence that Mr Skaines can give as to what happened on 23 November at Krui, given the backhanded way, as it were, that the evidence deprecating his conduct came into evidence very late in these proceedings. That's why I made the decision; that's why I tendered the advice - a decision made by me not foreseeing the manner in which Mr Lloyd would put the matter to your Honour. That's my fault, not foreseeing the way in which it would be put by Mr Lloyd. And that's the basis for making an application, supporting an application such as this.
I do it with great reluctance, great reluctance, but it would be, in my submission, a miscarriage of justice if your Honour were persuaded by those submissions to decide the case on the onus. There is evidence, it was always available after, whenever it was that Mr Taylor gave his evidence. Mr Skaines was at the bottom of a coal mine in Emerald in Queensland and as events of the last three or four days demonstrated, he could have got here. I determined that it shouldn't be done and that we should rely on the forensic arguments that were available to us. But having regard to the way in which Mr Lloyd put his arguments, it seemed to me that there was a prospect, by no means a certainty, that this unfortunate litigation might be resolved on an onus bearing point and, given that Mr Skaines can speak to that which happened, I determined that I should seek leave to reopen, so that that evidence was deployed.
I make no criticism, no criticism at all of the decision made by your Honour to allow the defendants to alter their case to make a new case, but all the bumps and grinds that have happened since then have been a product of that decision. I make no complaint about it, but it just happens to be the fact and the extraordinary turn of events when Mr Taylor returned to the witness box, very late in the day, completely changed his evidence and I then made a decision about whether or not Skaines should or should not be called. That was wrong and it's a decision that is having consequences I did not foresee. I made the decision to move the court to reopen on the basis that there was a risk that the matter might be decided on the onus, when a witness central and critical might be able to be called. That's when I made the decision. I didn't know that we could get this gentleman from the bottom of a coalmine in Emerald being called this week. That's why I made the decision."
As might be expected, Mr Maconachie's statement was neither challenged nor questioned in any way by opposing counsel.
The authorities
I was provided with a common list of relevant authorities. There was no dispute about the principles that applied.
In Smith v New South Wales Bar Association[1992] HCA 36; (1992) 176 CLR 256 at 266-7, the High Court said the following:
"[32] It is again necessary to distinguish between the considerations which may bear on a decision to re-open and the processes involved in reconsideration once a case has been re-opened. If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application (7) Barker v. Furlong (1891) 2 Ch 172, at p 184; Hughes v. Hill (1937) SASR 285, at p 287. But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete (8) As, for example, in Watson v. Metropolitan (Perth) Passenger Transport Trust (1965) WAR 88; Murray v. Figge (1974) 4 ALR 612. or one in which reasons for judgment have been delivered (9) As, for example, in In re Scott and Alvarez's Contract (1895) 1 Ch 596. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side (10) As suggested by Sheppard J. in Joyce v. G.I.O. (N.S.W.) reported in Ritchie's, op cit, vol.2, pp 8551-8552. But cf. Watson v. Metropolitan (Perth) Passenger Transport Trust; Murray v. Figge; Hughes v. Hill. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised. But those considerations bearing on re-opening are not decisive of the question whether, a matter having been re-opened by reason of error, further evidence can be called.
[33] Not every case involving error will invite further evidence: it will depend entirely on the issue that is opened up. If the issue is one that invites further evidence, then, prima facie and subject to the ordinary rules of evidence, that evidence should be allowed. We say prima facie because there may be situations in which the particular evidence involved would cause embarrassment or prejudice such that, in the circumstances, it would be unfair to allow it."
Later in the same year, the Court of Appeal dealt with the issue in Urban Transit Authority of NSW v Nweiser(1992) 28 NSWLR 471 at 478 in these terms:
"The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not [to] call the witness in the party's case was a deliberate one. Of course that does not mean that that is not a very relevant consideration. It is. Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application. But even in that circumstance there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel's deliberate decision. Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately to be considered as one in which the application has resulted from an error by counsel."
Somewhat later, in Vaw (Kurri Kurri) Pty Ltd v Scientific Committee[2003] NSWCA 297; (2003) 58 NSWLR 631 at [142], the Court of Appeal cited Nweiserwith approval and at [143] referred additionally to what had been said in that case as follows:
"[143] Earlier his Honour had noted at 476:
'For instance, if the evidence which it is sought to call upon the re-opened case, while relevant, could not possibly affect the outcome of the trial or is peripheral to the main issues then a trial judge may well be justified in declining leave to re-open. It may be otherwise if the evidence is crucial and would, if believed, lead to a different result. In a circumstance such as that, the interests of justice would seem to require the grant of leave to re-open where the earlier failure to call the evidence had resulted from some type of mistake '. (emphasis added)"
I was also referred to a number of other cases. See, for example, Fightvision Pty Ltd v Onisforou[1999] NSWCA 323; (1999) 47 NSWLR 473; Gaskin v Ollerenshaw[2010] NSWSC 788 at [13] - [23]; Hines Exports Pty Ltd v Mediterranean Shipping Co SA[2001] SASC 311; (2001) 80 SASR 268; State of New South Wales v Public Transport Ticketing Corporation (No 3)[2011] NSWCA 200 at [2]; Lontav Pty Ltd v Pineross Custodial Services Pty Ltd (No 2)[2011] VSC 485 at [30] - [37]; State of Tasmania v Clements[2010] TASSC 59 at [9] - [10]; ASIC v Rich[2006] NSWSC 826 at [18]; and Golden Oceans (NSW) Pty Ltd v Evewall Pty Ltd[2009] NSWSC 674.
The plaintiff's submissions
These were brief. The plaintiff contended that the interests of justice were persuasively in favour of its application. There was no prejudice that the defendants could point to that was not either capable of amelioration or correction by an appropriate costs order or which was not overtaken by the importance of the evidence that the plaintiff was seeking to lead. The plaintiff emphasised the remarks earlier cited from Nweiserat 478 of the report of that case and emphasised that the late decision of counsel not made for tactical reasons did not automatically lead to a conclusion that the evidence in question should be excluded. The plaintiff emphasised that the evidence in question was significant and had the potential to affect the outcome of the trial. It was not peripheral to the main issues in the proceedings. The plaintiff contended that the evidence of Mr Skaines was crucial and would, or at least could, if believed lead to a different result. The plaintiff submitted that in a circumstance such as that, the interests of justice would seem to require the grant of leave to re-open where the earlier failure to call the evidence had resulted from some type of mistake or at least a forensic choice from the consequences of which the plaintiff now sought to resile.
The plaintiff particularly drew by way of analogy upon some remarks made by Bleby J in Hines Exportsat [32] et seq as follows:
"[32] This is an unusual case in that although the application to reopen by the appellant was made during the final addresses, that application and the application of the respondent were not heard until after reasons for judgment had been published. Different principles are to be applied when determining whether or not to allow a case to be reopened, depending upon the timing of the application.
*****
[40] In this case, the trial judge never properly addressed the right questions in ruling on the appellant's application. He never resolved whether or not the omission by counsel for the appellant was due to inadvertence or was a deliberate choice - a factor highly relevant to the ultimate decision on reopening. By the time he came to consider the issue, his Honour was deflected by considering the respondent's application and the possibility of both parties seeking to overcome their respective shortcomings which had already been the subject of his reasons for decision. The trial judge ought to have dealt with the appellant's application to reopen before reasons for decision were published, thus avoiding the consequences referred to by his Honour that further evidence
might then require an alteration of those reasons.
*****
[43] In determining whether or not to allow the application when it was first made, the trial judge should have required the appellant to identify precisely what evidence was to be led and on what topic or topics, in order to assess the propriety of the application and in order to set the parameters of the further evidence-in-chief if the application were to be granted.
[44] By not dealing with the application when he should have, the trial judge allowed irrelevant factors to intrude into the decision to refuse the application. Normally, the judgment should be set aside and the matter remitted to the trial judge to hear and determine the appellant's application to reopen. Ideally, that should be decided as if the trial judge had not published his reasons. However, to do so would inject an air of artificiality into the proceedings. In this case it will also create a further injustice.
[45] The plaintiff is now alerted to a number of perceived difficulties in its case. It would now approach any application to reopen with the great benefit of hindsight, and of the deficiencies revealed in the trial judge's reasons. This may well be a forensic benefit which the plaintiff would not otherwise have had. The plaintiff would therefore have a significant advantage not afforded to the defendant, whose evidentiary case was also found by the trial judge to be deficient, in respect of the alleged incorporation of the terms of the bill of lading into the contract.
[46] It can be said, with some justification, that if the appellant is now to have the benefit of reopening its case, the respondent should not be prejudiced because of that. After all, as the trial judge observed, the case was fought largely on technical points of proof. If the appellant is to be permitted some latitude, the respondent should at least be permitted the same latitude.
[47] If the appellant's case were reopened, the respondent would have to be allowed to reopen its case, at least to answer any further evidence led by the appellant. There is no appeal by the respondent against the trial judge's refusal to allow it to reopen its case, but in my opinion, in the unusual circumstances of this case, the interests of justice would require that the respondent be permitted to reopen its case if the appellant is now permitted to reopen on matters which have been revealed to it by the trial judge's publications of reasons.
[48] This litigation has had a tortuous history: see Mediterranean Shipping Company SA v Hines Exports Pty Ltd [1999] SASC 52, an unreported decision of Nyland J in this Court. The history both before and since that decision reflects poorly on the advisers of both parties, and can only bring the administration of justice into disrepute. It is tempting to say that the litigation should now be brought to an end, and that matters should remain where they
stand. However, to do so may well compound one injustice with another.
[49] I am persuaded that, in the circumstances of this case and in the interests of justice, both parties should be allowed to call such further evidence as they may be advised..."
The plaintiff accepted that the decision not to call Mr Skaines was deliberate but emphasised that the plaintiff should not be penalised because it happened to have been made by its legal advisers.
The first defendant's submissions
The other defendants adopted the submissions of the first defendant. Those submissions were thorough and exhaustive. It is difficult to isolate or identify a single issue or point favourable to the defendants that has not been mentioned. In like manner, all of the plaintiff's submissions have been considered and responded to where necessary.
The first defendant commenced by listing the series of factors identified by Austin J in ASIC v Richat [18] as follows:
"(a) the nature of the proceeding;
(b) whether the occasion for calling the further evidence ought
reasonably to have been foreseen;
(c) the consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question;
(d) the extent to which the plaintiff has embarked upon calling
evidence on the issue in question in its case in chief;
(e) the importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case;
(f) the degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time;
(g) the prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs;
(h) the public interest in the timely conclusion of litigation;
(i) what explanation is offered by the plaintiff for not having called the evidence in chief."
These factors, together with the question of the deliberate decision not to call Mr Skaines, were all addressed in turn with specific reference to the facts of this case.
Deliberate decision not to call Mr Skaines
The first defendant submitted that this was the most powerful and obvious reason for declining to grant leave to reopen in this case. The plaintiff made a deliberate decision not to call Mr Skaines some time ago and should be bound by that decision. This is not a case where the substance of the evidence sought to be given only recently came to the plaintiff's attention. It emphasised that in Gaskin v Ollerenshawat [19], Garling J commented as follows
"[19] The High Court of Australia has held that in considering whether a case should be reopened before judgment is delivered, it is relevant to consider whether there was a deliberate decision made not to call the evidence during the trial. If such a decision was not made, the primary consideration should be whether the reopening of the case would cause embarrassment or prejudice to the other side: Smith v NSW Bar Association (No 2) (1992) 176 CLR 256 at 266-267 per Brennan, Dawson, Toohey and Gaudron JJ."
The first defendant also contended that Gaskin v Ollerenshawreferred at [17] to the fact that in exercising its discretion to grant leave to re-open, the Court must take into account s 56 of the Civil Procedure Act . In applying the considerations relevant to that section, the first defendant submitted that the matters considered in Aon Risk Services Australia Ltd v ANU[2009] HCA 27; (2009) 239 CLR 175 were relevant, in particular the passages at [112] to [114].
The first defendant submitted that while this is not a case concerned with amendments to the pleadings, the considerations set out in Aon(as to the limits that will be placed on a party's ability to change the way in which it conducts its case) are applicable by analogy to the plaintiff's present application. This is especially so where a change in the manner of conducting the proceedings will result in great expense and significant delay to the other parties.
The first defendant submitted that the plaintiff is now seeking to rely upon evidence from Mr Skaines at the very end of the proceedings, which it could have introduced over twelve months ago but which it consciously decided not to do. The fact that the plaintiff has decided to take a different view about this matter now is not a sound reason favouring the granting of the application. The evidence from Mr Iacuzzi indicates that the plaintiff made a deliberate decision not to call Mr Skaines. It was made not once but a number of times during the course of the proceedings.
It is apparent that a decision must also have been made not to call Mr Skaines when Mr Pay was called to give evidence in chief and swore his affidavit in the proceedings. The plaintiff decided not to call the loaders or other people on the ground at Krui on 23 November 2000 for undisclosed reasons. Mr Pay's evidence was led by the plaintiff in an attempt to displace the theory that Pay's Air was responsible for the damage to the Telleraga fields. It is reasonable to assume that at this time (at the very least) the plaintiff decided not to call anyone else from Pay's Air save for Mr Pay. That obviously included Mr Skaines.
Even after the second round of evidence from Mr Taylor on 30 September 2011, the plaintiff considered whether to call Mr Skaines and decided not to do so. Any application to call Mr Skaines could have been made in October 2011. This matter should have been attended to promptly by placing the defendants on notice of this intention. The plaintiff could at any time following Mr Taylor's evidence on 30 September 2011 have sought to call further evidence. It decided not to do so.
Mr Iacuzzi has made it clear that the plaintiff gave considerable thought to this matter after Mr Taylor's evidence on 30 September 2011. The plaintiff made a conscious, informed and deliberate decision not to call Mr Skaines right up until it reversed that decision on advice from counsel on 9 December 2011. The inference is open that the plaintiff took a 'wait and see' approach after Mr Taylor's return. It waited to see what submissions the defendants might make, both orally and in writing. The first defendant submitted that the plaintiff was not entitled to do so, especially having regard to the consequences in terms of expense, inconvenience and delay. The application has come too late for reasons that are either not adequately explained or not explained at all. The plaintiff changed its mind. The first defendant submitted that that was wholly unsatisfactory given the lateness with which the application has been made, and the significant consequences for the defendants if the application were granted.
The nature of the proceeding
The first defendant submitted that there was nothing special about the nature of these proceedings, such as a person being in custody or similar, which weighed in favour of further evidence being received at this late stage.
Whether the occasion for calling the further evidence ought reasonably to have been foreseen
The occasion for calling this evidence should reasonably have been foreseen by the plaintiff when it called Mr Pay. It should have been foreseen when the third defendant called Mr Taylor. It should also have been foreseen when Mr Taylor was recalled.
Although not referred to by the plaintiff on this application, this matter may also have been considered when the plaintiff prepared its evidence in reply. It produced the further expert reports of Mr Somervaille and Mr McDougall, together with evidence from Mr Ward in response to the expert evidence of Mr Ghirardello, which theorised that Pay's Air was responsible for the damage on Telleraga. The plaintiff admits that it considered calling Mr Skaines at least from November 2010. The evidence of Mr Iacuzzi demonstrates that not only was the occasion for calling further evidence foreseeable, it was in fact foreseen. It is therefore apparent that the plaintiff considered the question and decided against calling Mr Skaines. The first defendant submitted that it was now too late to resile from the forensic decision that was made.
The consideration of fairness that the defendants are entitled to know
all of the evidence they have to meet in taking forensic decisions as to
cross-examination and the nature and extent of the evidence they will
adduce on the matters in question
The plaintiff prepared a draft affidavit for Mr Skaines more than a year ago. If it wished to call Mr Skaines, it had ample opportunity to do so. The defendants are all prejudiced by the plaintiff 'saving up' this evidence in the hope of deploying it at the very end of the trial. The defendants cannot be expected to know what they may have done to meet the proposed evidence. Given the late stage of the proceedings, there may be little if anything that can be done.
The extent to which the plaintiff has embarked upon calling
evidence on the issue in question in its case in chief
The plaintiff decided to lead oral evidence in chief from Mr Pay on the issue to which the new evidence of Mr Skaines is directed. It put the matter of Pay's Air being responsible as a cause of the damage squarely in issue in its opening address, and sought to meet it by calling Mr Pay. The plaintiff embarked upon calling evidence on this very issue by doing so. The plaintiff decided long ago when it secured an affidavit from Mr Pay that it wanted to attempt to displace the theory that Pay's Air had anything to do with the damage to the fields on Telleraga. At that time, the plaintiff decided not to call Mr Skaines, Rohan Lloyd, Ollie Taylor or the pilot Bill Harrison. One can only speculate about the reasons for that, but it is likely that the plaintiff believed that it would not assist it to call anyone other than Mr Pay.
The importance of the issue on which the further evidence is sought
to be adduced to the pleaded issues in the case
The first defendant quite properly conceded that the issue, of whether a mistake had been made at Pay's Air, was an important one. However, it emphasised that it has been important for a long time, and was apparently an important issue to the plaintiff when it opened its case. It was patently also important when it decided only to call Mr Pay to give evidence in the case addressing this very issue. The issue is also one of importance to the defendants. Indeed, leave was granted to the third defendant to run its case on the basis that Pay's Air was responsible for the damage on Telleraga.
The matter was also important given that the first and third defendants wished to tender Mr Ghirardello's notes that were taken when he interviewed Mr Taylor. These defendants (and the third defendant in particular) were placed in the position that in order for the notes to be received into evidence, they were required to call Mr Taylor. The notes may otherwise have been inadmissible as hearsay.
Notice was given to the plaintiff of the intention to call Mr Taylor. The plaintiff thereafter stated on 3 December 2010 that it had some evidence in reply that it was not going to provide to the defendants. The basis for this stance was the allegation by the plaintiff that Mr Taylor's evidence may be tailored if he were provided with this material in advance. The plaintiff made an application pursuant to the principles in Markus v Provincial Insurance Co Ltd(1983) 25 NSWCCR 1. I granted the orders sought by the plaintiff. These orders prevented the defendants from seeing Mr Taylor's affidavit until after Mr Ghirardello had given his evidence. The first defendant then made an application to recall Mr Taylor, which was granted.
Mr Taylor then gave evidence on 30 September 2011. This evidence was to the effect that Mr Taylor had helped cover up a mistake that had been made by Mr Skaines. This mistake was that Mr Skaines had loaded glyphosate instead of Microsol onto the plane known as VH-LIU. Mr Taylor referred to this as a "fuck up".
The first defendant submitted that there would never have been any evidence from Mr Taylor were it not for the third defendant calling him as a witness, and the first defendant seeking to have him recalled. The plaintiff made the decision that it did not want Mr Taylor to give evidence at this trial, and only obtained an affidavit from him in response to the third defendant notifying the plaintiff that he was being called. The plaintiff's position as to the evidence it was prepared to provide to the Court concerning Pay's Air was going to be limited to Mr Pay, were it not for the actions of the first and third defendants in calling Mr Taylor. The plaintiff had therefore made tactical forensic decisions about whether to call anyone other than Mr Pay from Pay's Air at this trial (including Mr Skaines) a very long time ago, and for whatever reason, decided against it.
The degree of relevance and probative value of the further evidence
sought to be adduced and its potential to involve an undue waste of
time
The first defendant accepted that the evidence of Mr Skaines was relevant. However, it asserted that its probative value was marginal, given that it amounts to no more than a bare denial. The evidence does not demonstrate unequivocally that Mr Taylor's version about the loading mistake on 23 November 2000 and its cover up must be false. It is possible that the defendants may gain concessions from Mr Skaines that are of use to them. Overall however, the first defendant submitted that while at the appropriate time this may have been helpful or even useful, the opportunity has come far too late. The first defendant is anxious to complete the case as planned by 16 December 2011.
The prejudice to the defendant in terms of delay in the completion
of the proceeding and the consequential costs
The first defendant believed until very recently that this case would conclude on 16 December 2011. This application (if granted) will cause significant delay in that Mr Skaines will need to be brought to Court at some time next year. The defendants need time to study the proposed evidence, take instructions, make objections, and potentially consider whether they need to do anything to meet it. The 'consequential costs' will necessarily include a further round of hearings after all parties have already addressed and provided written submissions, giving further advice, setting time aside to hear Mr Skaines' evidence, as well as preparing cross-examination and providing supplementary written and/or oral submissions as to the ultimate effect and/or consequences of the proposed evidence. The resources of the defendants are finite and so too are those of the Court. The first defendant submitted that the lateness of the application, the delay and the consequential costs and expense far exceed the probative value of the evidence that is sought now to be adduced.
The public interest in the timely conclusion of litigation
The first defendant submitted that there is a strong public interest in litigation finishing in a timely manner. There was said to be nothing so exceptional or new in the proposed evidence that would outweigh the public interest in these proceedings concluding as they were scheduled to do on 16 December 2011.
What explanation is offered by the plaintiff for not having called the
evidence in chief
The first defendant submitted that there was no explanation, or at least no adequate explanation, for the plaintiff's failure to call this evidence in chief or even in reply. The explanation given is simply that the plaintiff had thought about calling Mr Skaines, decided not to, and then for unspecified reasons changed its mind. The first defendant submitted that the evidence would need to be of an exceptional nature (as would the excuse or reason for the delay in calling it) for it to be permitted at this very late stage in the proceedings. The evidence is not something new that the plaintiff could not have anticipated or that arose only recently. The explanation given is said to be far from satisfactory and strongly tells against the discretion being exercised to permit the plaintiff's case to be reopened.
In summary, the first defendant contended that it would not be in the interests of justice to allow the plaintiff's application.
Consideration
UCPR 2.1 and 29.5 provide respectively as follows:
" 2.1 Directions and orders
The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings.
29.5 Conduct of trials generally
The court may give directions as to the order of evidence and addresses and generally as to the conduct of the trial."
All counsel referred me to these provisions. As will be apparent, the present application concerns a strongly contested application to reopen the plaintiff's case in reply. The proceedings originally came before me for directions on 27 August 2007. The hearing proper commenced on 27 July 2009 and has (so far) occupied some 47 days spanning nearly two and a half years. Very lengthy final written submissions have been prepared and exchanged by all parties and ten days have been allocated for them to address me orally. This application comes effectively in the middle of that process. While I accept that these rules are therefore relevant and informative, they are not in any sense conspicuously determinative of the plaintiff's application.
There can be no doubt and there is no dispute that the plaintiff made an informed and deliberate decision not to call Mr Skaines. I make that finding. Why that decision was made is difficult to understand. It is particularly difficult to understand when regard is had to the terms of Mr Skaines' draft affidavit and the issues in this case. Even if there were competing forensic imperatives in existence before Mr Taylor's latter day epiphany, when he confessed to having been party to a mistake and its cover up, which appeared to make the decision to call him risky or uncertain or perilous, those imperatives must necessarily have considerably diminished if they had not completely evaporated by the time Mr Taylor left the witness box for the last time. Moreover, from as early in the proceedings as the time when Mr Ward's notorious fourth page of his typed notes dated 4 December 2000 entered the litigation or from when it was recognised to be an important document, anything that Mr Skaines could contribute favourably to the plaintiff's interests must correspondingly have risen in significance. A statement that "[i]f glyphosate, instead of Microsol, was pumped into a mixing vat, it would be immediately obvious that the chemical was glyphosate due to its distinctive colour, smell and viscosity" is unambiguously potentially very important in a resolution of the mystery surrounding what really happened at Krui airstrip on 23 November 2000. Whether or not it carries the day when compared to all the other evidence touching the issue is not presently to the point.
The events at Krui are central. They involved few players. Mr Taylor was one and he has been heard. Bill Harrison, the pilot, is another but his whereabouts are unknown. Evidence that he could give might be critical, having regard to the position occupied by spray pilots in the operations concerned, but I assume I will never hear from him. Mr Pay gave evidence but he was not involved directly in what happened. Mr Skaines, therefore, finds himself in the centre of a dispute as one of only two people who directly witnessed what happened.
There is in these circumstances an all-pervading air of artificiality in excluding Mr Skaines from the evidentiary mix. This is even clearer when one considers that we all know precisely what he will say. This is not a case in which an application to reopen is made in the hope or uncertain expectation that some evidence may emerge after inquiry that fills an obvious gap in a party's case. In the events that have occurred before me, that evidence is staring everyone in the face in the clearest possible terms. It has never been tested in cross-examination but on its face Mr Skaines' evidence is central and critical. The logical outcome of keeping this evidence out is that I will be required to decide this difficult and puzzling case in general, and the related issue of what happened at Krui in particular, with a known and potentially important piece of the puzzle put to one side. I am in no way critical of the defendants for opposing the application but the end result of accepting their arguments would place the Court in what I consider to be an intolerable position. I hasten to add that the responsibility for that unwelcome prospect undoubtedly lies with the plaintiff.
The factors identified in Richsupport the defendants in nearly every case. The one exception in my opinion is the importance of the issue on which the plaintiff seeks to call the further evidence. As the first defendant's thorough and helpful submissions acknowledge, the issue is important. The question that I am required to consider is whether that importance is swamped by the tidal wave of procedural and policy considerations to which those submissions so clearly direct my attention. It is unsurprising that those submissions very persuasively call in aid the sentiment so powerfully expressed by the High Court in Aonabout the need for finality and the undesirable and deleterious effects of delay and uncertainty.
Notwithstanding these matters, I feel that I have no alternative, having regard to the interests of justice, than to grant the plaintiff the leave that it seeks. There would to my mind be an incurable deficiency in any reasons for judgment finally resolving these long running proceedings that were formulated without the benefit of whatever Mr Skaines is able to contribute.
Conclusion and orders
I consider that the following orders should be made:
1. Grant leave to the plaintiff to reopen its case in reply to call Michael Skaines.
2. Plaintiff to pay the costs of and incidental to the application.
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Decision last updated: 15 December 2011
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