Peter John Dickson v Telstra Corporation Limited

[2005] ACTCA 36

PETER JOHN DICKSON v TELSTRA CORPORATION LIMITED
[2005] ACTCA 36 (4 August 2005)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 8 - 2005
No. SC 487 of 2001
Judges:  Higgins CJ, Crispin P and Moore J
Court of Appeal of the Australian Capital Territory
Date:            4 August 2005

IN THE SUPREME COURT OF THE  )   No. ACTCA 8 - 2005
  )  No. SC 487 of 2001
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PETER JOHN DICKSON

Appellant

AND:TELSTRA CORPORATION LIMITED

Respondent

ORDER

Judges:  Higgins CJ, Crispin P and Moore J
Date:  4 August 2005
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Judgment and orders appealed from be set aside.

3. Matter remitted to the Supreme Court for rehearing.

4. Respondent to pay appellant’s costs of and incidental to the appeal.

IN THE SUPREME COURT OF THE  )   No. ACTCA 8 - 2005
  )  No. SC 487 of 2001
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PETER JOHN DICKSON

Appellant

AND:TELSTRA CORPORATION LIMITED

Respondent

Judges:  Higgins CJ, Crispin P and Moore J
Date:  4 August 2005
Place:  Canberra

REASONS FOR JUDGMENT

HIGGINS CJ:

1. We have taken the view that we can dispose of this matter now.  The reasons may lack some degree of elegance and certainly some degree of detail that might otherwise be expected but I think it is in the interests of everybody that the matter be here and now determined, if that can be done and I believe it can. 

1. I do not propose to recite the proposed new evidence; it is contained in the affidavits of Mr Burke and Mr Dugandzic respectively but supported by the affidavits of Mr Pantos and of course Mr Finlay.  There is also produced a series of documents from Telstra which may or may not tend to support the statement, particularly of Mr Burke, but in the light of the fact that Mr Burke’s and Mr Dugandzic’s affidavits are not the subject, in these proceedings at least, of any disputation we feel we are entitled to take them at their face value. 

1. Now there are, as has been pointed out by Mr Elkaim, two conditions that are prescribed for the purpose of admitting fresh evidence on an appeal.  They are referred to in Greater Wollongong City Council v Cowan (1955) 93 CLR 435 at 444. One is that the proposed fresh evidence is to be of sufficient cogency to warrant the conclusion that had it been adduced at the original hearing the result would have been different.

1. In my opinion the evidence proposed to be adduced is, on the face of it, sufficiently cogent.  I really do not understand it to be seriously challenged.  Had it been adduced at the hearing and, as here, either accepted or not challenged, it seems to me that a verdict in favour of the plaintiff would have been inevitable.  This is because the essential thing which the plaintiff failed to prove, in the opinion of the Master, was that there had been access to the pit within a reasonable time before the accident had occurred, from which it could be inferred that Telstra, through its employees, was aware of the unsafe and dangerous state of the pit and could and should have taken action earlier to remedy that position. 

1. The evidence of Mr Burke and of Mr Dugandzic, of course, goes one step further from that in two respects.  One is that they accessed the pit within a reasonable time before the fall.  Albeit it was not six weeks before, as the plaintiff and his wife had claimed, but rather possibly as long as two years before.  Nevertheless, at that time Messrs Burke and Dugandzic had seen the pit to be in a potentially dangerous position and, secondly, Mr Burke says that he reported that fact to his superiors. 

1. That is, to my mind at least, of great significance.  That report is not something which had emerged nor has yet emerged in discovery given by the respondent.  Had it so emerged, of course, the plaintiff’s solicitors and others would have been alerted to the possibility of those further witnesses, albeit they were Telstra employees.  But in any event, so far as the first ground is concerned, it seems to me that that is clearly and amply satisfied. 

1. As to the question of diligence, it is to be noted that what is required is not perfection but reasonable diligence and “reasonable” means to take account of all the circumstances of the litigation in question and of the accident in question and of the events that presumably preceded it. 

1. In this case the relevant piece of information was that one of the Telstra employees who had accessed the pit, was a black man of Islander appearance, to flesh out the description a bit, with earrings. 

1. It is true to say that that is a reasonably distinctive description and there are a number of inferences which follow from it.  The first is of course that it would be a matter beyond coincidence if Mr Burke had not been the person concerned.  He apparently matches that description and that fact tends to support a view that the plaintiff must have seen a person of that description working in the pit at some time before his fall, although it does appear that he was probably mistaken about it being as recently as six weeks before. 

1. In any event, whether he was mistaken about that or not, or was in error about some other relevant aspect of that event and description, he recalled that description.  From the time of his fall he kept a lookout for a person answering that description.  It is further to be noted that he might well have expected documents on discovery to reveal the identity of that person as a person who had worked in the area in relation to that pit.  Discovery, of course, did not do so. 

1. Mr Finlay’s affidavit outlines the steps taken which it must be conceded are reasonable steps to obtain discovery from Telstra, and nothing of any relevance was discovered.  Further, the position of Telstra was that there had been no access at all to that pit at any relevant time before the plaintiff’s fall, from which it would be inferred that there was no reasonable opportunity for Telstra to have noted that there was an unsafe or dangerous condition into which the pit had fallen before the fall had taken place. 

1. We noted that in Greater Wollongong City Council v Cowan itself the major question addressed by Dixon CJ, with whom the rest of the court agreed, was the cogency of the evidence that was then adduced.  While a statement was made concerning reasonable diligence, the content of that concept of reasonable diligence was not explored. 

1. I also note that section 48A of the Australian Capital Territory Self-Government Act 1998 (Cth) places an overriding duty on this court to ensure that justice is done and that when the Court is looking at a concept such as reasonable diligence the question of reasonableness demands some flexibility in balancing the need for the finality of litigation with the public interest in ensuring that justice is done. 

1. I would add that there is nothing in this case to suggest that had Telstra been asked specifically to identify a person of Islander appearance with earrings whom they employed, that the persons they had available to ask, at least from when the action was commenced to when the hearing took place, were sufficiently well informed that they would inevitably have identified this particular man, Mr Burke, as the person in question. 

1. The real question is whether the failure earlier to discover the evidence was due to lack of diligence on the part of the plaintiff and, if relevant, those representing him, or was it lack of discovery by Telstra.  To my mind that is a very mixed question.  Telstra produced no records relevant to access to this pit by its employees.  Had Mr Burke reported as he deposes, and we must accept that he did for the purpose of these proceedings at least, there should have been a record and there was none produced. 

1. I also note that in the case of Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 140 reference is made to Cowan by the court.  That court was constituted by Mason CJ, Deane, Dawson , Toohey and Gaudron JJ. At page 140 their Honours cite what was said by Dixon CJ in Cowan.  The passage is cited from Cowan at 444. The opening words are of significance -

If cases are put aside where a trial has miscarried through misdirection, misreception of evidence, wrongful rejection of evidence or other error and if cases of surprise, malpractice or fraud are put on one side, it is essential give affect to the rule that the verdict, regularly obtained, must not be disturbed without some insistent demand of justice.

1. Then follows the passage from Quade to which reference was made by Mr Elkaim.  Their Honours go on to say however -

The words “rarely, if ever” in the above passage leave open the possibility of exceptional circumstances justifying a departure from the general rule even in the class of case to which the general rule is directed. 

1. Their Honours then go on to say that it was not necessary to pursue that qualification in that particular case. 

1. But, it seems to me, as those quotations made plain, the rule for receipt of fresh evidence is far from absolutely rigid.  A discretionary judgment must be made not only as to the question of the cogency of the evidence but also the question of whether there was reasonable diligence or not.  That is, diligence being reasonable in all the circumstances.  The rule is also subject to the overriding consideration that the interests of justice are always of paramount importance: (see, for example, Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146).

1. I am reminded in this case that the factors that I have mentioned lead me to conclude that the interests of justice do demand the admission of this fresh evidence and therefore entail a requirement for this appeal to be upheld and the matter remitted to the Master for further hearing in the light of that evidence, should it be called by the plaintiff in those proceedings.  When I say the Master I mean the Master or any other member of the court, exercising jurisdiction.  But I suppose as the Master has already assessed damages it may or may not be appropriate for the Master to hear the matter, and we make no particular direction about that. 

1. It seems to us that this is a case beyond the mere lack of discovery of evidence which otherwise should have been discovered.  It is evidence which was primarily in the possession, or should have been in the possession, of the respondent.  That makes it to some extent exceptional and, as we say, in those circumstances, we would uphold this appeal and remit the matter to the Supreme Court for hearing on the issue as to liability. 

1. It is the order of the Court that the judgment entered for the defendant in matter 487 of 2001 and the order for costs made in those proceedings be set aside.  The orders to be made in the place of those orders will be a matter for the new trial.  As far as the costs for this appeal are concerned, however, we are agreed that there seems to be no reason we can discern in this case why costs should not follow the event.  As far as the costs of the appeal are concerned, therefore, they will be paid by the unsuccessful respondent to the appellant.  Those costs will be taxed in the usual way. 

1. Just to make it plain, the orders are that the judgment appealed from is set aside including the order as to costs and there will be a new trial ordered, limited to liability.  The trial court, be it the Master or otherwise, is to have the authority to make an order for costs in respect to the first hearing as well as any orders might be justified in the second hearing. 

   I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

   Associate:

   Date: 4 August 2005

IN THE SUPREME COURT OF THE  )   No. ACTCA 8 - 2005
  )  No. SC 487 of 2001
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PETER JOHN DICKSON

Appellant

AND:TELSTRA CORPORATION LIMITED

Respondent

Judges:  Higgins CJ, Crispin P and Moore J
Date:  4 August 2005
Place:  Canberra

REASONS FOR JUDGMENT

CRISPIN P:     

1. I agree with the orders proposed by the learned Chief Justice and with his Honour’s reasons for judgment and wish to add only two things.  First, the concept of reasonable diligence does not import a requirement of perfection.  It is ultimately a matter of judgment as to whether or not the steps taken in any given case are sufficient to satisfy the test of reasonable diligence.  For my part I am satisfied on the evidence that in the present case that test was satisfied. 

1. Secondly, this is a case in which the solicitors for the appellant sought discovery and supplementary discovery, and issued notices to produce documents relating to the inspection and maintenance of the pit in question.  Those steps failed to produce records of the complaint by Mr Burke to his supervisor as to the potential danger of this pit, only because his supervisor failed to make an adequate report of his complaint so that it could be sensibly addressed or, alternatively, because other officers of the respondent failed to make such a record. In these circumstances it seems to me that the interests of justice would, in any event, require intervention of the kind proposed by the learned Chief Justice. 

   I certify that the preceding paragraphs numbered twenty-four (24) to twenty-five (25) are a true copy of the Reasons for Judgment herein of his Honour, President Crispin.

   Associate:

   Date: 4 August 2005

IN THE SUPREME COURT OF THE  )   No. ACTCA 8 - 2005
  )  No. SC 487 of 2001
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PETER JOHN DICKSON

Appellant

AND:TELSTRA CORPORATION LIMITED

Respondent

Judges:  Higgins CJ, Crispin P and Moore J
Date:  4 August 2005
Place:  Canberra

REASONS FOR JUDGMENT

MOORE J: 

1. I agree with the orders of the Chief Justice and his reasons and the additional comments of the President.  We are here dealing with a broad discretionary power conferred by s 37N of the Supreme Court Act.  That discretion must be exercised judicially.  Two factors have been identified in the authorities as guiding the exercise of that discretion.  One concerns the likely significance of the evidence upon the verdict.  The second concerns the question of whether the evidence was likely to have been revealed had the party seeking to adduce the evidence, undertaken reasonable and diligent inquiries seeking that evidence. 

1. However, those factors do not exhaust the factors relevant to the exercise of that discretion and in this particular case it seems to me, an additional consideration is that the case was conducted before the Master by the defendant and the respondent to the appeal on the footing it would seem that it was unaware of the condition of the pit and the defendant below enjoyed the benefit of a finding of the Master that it was unaware of the condition of the pit. 

1. On the evidence presently before us, which is unchallenged, that finding is simply unsustainable.  At least on one view, the case could not have been or perhaps should not have been conducted by Telstra on the footing that it was simply unaware of the state of the pit.  That additional consideration fortifies my conclusion that the orders proposed by the Chief Justice are the appropriate orders in this matter.

   I certify that the preceding paragraphs numbered twenty-six (26) to twenty-eight (28) are a true copy of the Reasons for Judgment herein of his Honour, Justice Moore.

   Associate:

   Date: 4 August 2005

Counsel for the Appellant:  Mr D Campbell SC, Mr I Bradfield and
  Ms Moisidis

Solicitor for the Appellant:  Pamela Coward & Associates

Counsel for the Respondent:  Mr M A Elkaim and Mr A J Bowen

Solicitor for the Respondent:  Henry Davis York

Date of hearing:  4 August 2005

Date of judgment:  4 August 2005