Ridge v City of Salisbury Council (No. 3)
[2021] SADC 132
•26 November 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
RIDGE v CITY OF SALISBURY COUNCIL & ANOR (NO. 3)
[2021] SADC 132
Reasons for Decision of her Honour Judge Schammer
26 November 2021
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - TRIAL - OTHER MATTERS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT
The applicant, Corey Ridge, claims damages for personal injuries allegedly sustained by him when he was involved in an incident at the Salisbury North Skate Park on 5 April 2009, during a community event, "I East Concrete for Breakfast".
The applicant, then aged 10, was riding his scooter on the skate park track, when a collision occurred between him and a BMX bicycle, ridden by Justin Dermody.
The event included closed sessions (competitions, warm-up sessions and demonstrations), during which only certain riders were allowed on the track, and 'free skate' or open sessions, when all participants (and others) at the event were permitted on the track at the same time, irrespective of their age or the type of apparatus they were using. The applicant has always maintained that the collision occurred during an 'open session'.
The trial of this action is currently part-heard. At the time of trial, the second respondent's defence included an admission that the collision occurred during an open session. The fourth respondent's defence pleaded that the collision occurred either during an open session, or during a BMX competition warm-up. Prior to trial, both respondents had unsuccessfully applied to amend their defences to plead the collision occurred during a BMX demonstration.
At trial, Justin Dermody gave evidence that the collision occurred during a BMX demonstration.
After the close of evidence, the second respondent was granted leave to amend its defence to withdraw the admission, and to plead that the collision occurred during either an open session, a BMX competitors' warm-up or a BMX demonstration. The fourth respondent then successfully applied to amend its defence to plead the collision occurred either during a BMX demonstration or a BMX competition warm-up.
The applicant now applies for leave to re-open his case against both the second respondent and the fourth respondent.
Both the second and fourth respondents have applied for an order striking out the Reply (or portions of it) filed by the applicant in answer to their amended pleading.
Orders:
1. The applicant has leave to re-open his case against the second respondent and the fourth respondent, with such leave confined to the calling of evidence from Chad Lockwood, Joshua Mezzatesta and Linda Weiss.
2. The respondents' applications, FDN 12 and FDN 114, are refused.
3. The question of costs of and incidental to each application is reserved for determination by me, after the delivery of my judgment.
Ridge v City of Salisbury Council & Anor [2021] SADC 61; Ridge v City of Salisbury Council & Anor (No. 2) [2021] SADC 87; Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471; Westgem Investments P/L v Commonwealth Bank of Australia Ltd [No 5] [2019] WASC 310; FYD Investments P/L v Promptair P/L [2017] FCA 1097; Goldsmith v Sandilands (2002) 190 ALR 370; Re Australasian Meat Industry Employees' Union Ex parte Ferguson (1986) 67 ALR 491; Browne v Dunn (1893) 6 R 67 (HL); Allied Pastoral Holdings P/L v FCT [1983] 1 NSWLR 1; Billage Cay Marina Ltd v Acland [1998] 2 BCLC 327, considered.
RIDGE v CITY OF SALISBURY COUNCIL & ANOR (NO. 3)
[2021] SADC 132[Civil]
Introduction
The applicant, Corey Ridge, claims damages for personal injuries allegedly sustained by him when he was involved in an incident at the Salisbury North Skate Park (skate park) on 5 April 2009, during a community event, “I Eat Concrete for Breakfast” (the event).
There is no dispute that on that day, the applicant, then aged 10, was riding his scooter on the skate park track (track), when a collision occurred between him and a BMX bicycle, ridden by Justin Dermody (the collision).
The action is maintained against the City of Salisbury Council (second respondent) and JR Ottaway and AN Shepherd trading as Da Klinic Magazine (fourth respondent). Both the second and fourth respondents deny liability for the collision.
The event included closed sessions (competitors for riders in different age groups and on different apparatus, warm-up sessions and skate and BMX demonstrations) and open sessions when event participants of all ages and on all apparatus (and other persons present at the skatepark who were not otherwise registered as event participants) were invited to enter the track at the same time and without regulation.
The applicant’s case is that the collision occurred during an open (or ‘free skate’) session.
In its Defence, filed on 20 August 2020, the second respondent made admissions to the effect that the collision occurred during an open session (the admission).
In its Defence dated 12 April 2019, the fourth respondent pleaded at paragraph 4.6:
4.6it says that the collision occurred whilst the plaintiff was riding a scooter in the skate park in a ‘free skate’ period, or alternatively, whilst the plaintiff was riding in the skate park during the ‘BMX’ competition warm up.
Prior to trial, the second respondent made two unsuccessful applications to amend its Defence to withdraw the admission and to plead, in accordance with information provided to them by Justin Dermody, that the collision occurred during a BMX demonstration.
Prior to trial, the fourth respondent applied once unsuccessfully to amend its Defence to add another alternative case, namely that the collision occurred during a BMX demonstration.
The trial of this action is proceeding solely on the issue of liability and remains part-heard before me. At the conclusion of the evidence and during closing submissions, the second respondent made a further application to amend its Defence to withdraw the admission, which application was granted.[1]
[1] Ridge v City of Salisbury Council & Anor [2021] SADC 61.
Shortly thereafter, the fourth respondent applied to amend its Defence to plead, inter alia, in lieu at paragraph 4.6:
4.6it says the collision occurred whilst the applicant was riding a scooter in the skate park at a time when the skate park was closed to riders other than BMX riders participating in a BMX demonstration or alternatively the ‘BMX’ competition warm-up.
The application was granted.[2]
[2] Ridge v City of Salisbury Council & Anor (No. 2) [2021] SADC 87.
Applications
The applicant has applied for leave to re-open his case against both the second respondent and the fourth respondent.[3] The applications are opposed by both respondents.
[3] FDN 90 and FDN 108.
The applications are supported by numerous affidavits, namely:
1.Affidavit affirmed by Andrew Nicholson on 6 February 2019.
2.Affidavit affirmed by Andrew Nicholson on 6 October 2020.
3.Affidavit affirmed by Andrew Nicholson on 25 June 2021 (FDN 91).
4.Affidavit affirmed by Andrew Nicholson on 15 July 2021 (FDN 95).
5.Affidavit affirmed by Andrew Nicholson on 10 August 2021 (FDN 107).
6.Affidavit affirmed by Andrew Nicholson on 10 September 2021 (FDN 116).
7.Affidavit affirmed by Jason Karl Fernandis on 24 September 2021 (FDN 119).
During the course of argument, counsel for the fourth respondent made numerous objections to the receipt of these affidavits (or portions thereof) on the basis that the contents of the affidavit(s) were, variously, evasive and/or contained second-hand hearsay. After hearing submissions, I ordered that the affidavits be received and insofar as is necessary, I dispense with the requirement that the applicant comply with UCR 31.7(12) on the grounds of expediency and efficiency.
In considering the applications, I have had regard to submissions made by the respondents as to the adequacy of the supporting affidavits.
The respondents did not file any affidavits in response to these applications.
By FDN 112, the second respondent has applied for an order striking out the applicant’s Reply filed, purportedly, in response to the Second Respondent’s Defence – Revision 2. That application is supported by an affidavit sworn by Nadia Karina Blake on 3 September 2021.
By FDN 114, the fourth respondent has applied for an order striking out the applicant’s Reply filed, purportedly, in response to the Fourth Respondent’s Defence – Revision 1. That application is supported by an affidavit sworn by Alexander John Bubner on 3 September 2021.
The respondents’ applications are opposed by the applicant.
These four applications were the subject of a full day argument heard on 27 September 2021. In addition to oral submissions, I have received and considered:
1.Applicant’s Outline of Submissions dated 25 June 2021 (FDN 89).
2.Applicant’s Supplementary Outline of Submissions dated 20 September 2021 (FDN 118).
3.Written Submissions of Second Respondent dated 20 July 2021 (FDN 97).
4.List of Authorities of Second Respondent (FDN 99).
5.Written Submissions of Fourth Respondent dated 20 July 2021 (FDN 98).
6.Written Submissions of Fourth Respondent in Response to Applicant’s Supplementary Submissions dated 24 September 2021 (FDN 121).
7.List of Authorities of the Fourth Respondent (FDN 100).
Relevant Factual Background
I do not intend to repeat the background as set forth in my earlier Reasons.
However, it is important to re-state the following important matters.
Both respondents pleaded that the applicant’s negligence caused or contributed to the collision, that his use of the skate park was at his own risk and that he voluntarily assumed the obvious risk of injury by entering the skate park in the presence of other users.
Having regard to the pleadings, the circumstances in which the collision occurred were very much in dispute.
The trial was conducted on the basis of the pleadings as they stood as at October 2020. The trial also proceeded against a background of both parties having unsuccessfully applied to amend their pleadings to include an allegation that the collision occurred during a BMX demonstration.
The applicant’s counsel approached the trial on the basis that the applicant had the benefit of an admission from both respondents that the collision occurred during an open session, such that the applicant was not required to prove that fact and only was required to meet the alternative case as raised by the fourth respondent, namely that the collision occurred during a BMX warm-up.
The applicant’s case was presented in accordance with that assumption, notwithstanding that the applicant knew that Justin Dermody had been subpoenaed to give evidence by the second respondent.
The applicant knew, both from earlier email exchanges with Justin Dermody,[4] the contents of a statement of Justin Dermody[5] and as a result of a proofing of Justin Dermody undertaken by the applicant’s solicitors on Thursday 5 November 2020,[6] that Justin Dermody’s recollection was that the collision occurred during a BMX demonstration.
[4] Exhibit D5.
[5] Exhibit ER2 to the affidavit of Eveline Olivia Rygorowicz sworn on 6 October 2020.
[6] The trial was adjourned from 7 October 2020 to recommence on 10 November 2020 before any evidence was heard.
The applicant gave evidence and called evidence from his older brother, Tyler Ridge, his cousin, Briana Tootell and his mother, Carla Ridge. I have previously summarised the effect of this evidence in my earlier Reasons for Decision insofar as that analysis was necessary to address the Second Respondent’s application to withdraw the admission.[7] That analysis applies similarly to my consideration of the current applications.
[7] Ridge v City of Salisbury Council & Anor [2021] SADC 61 at [51]-[89].
The applicant declined to call evidence from his younger brother, Kyle Ridge (then aged approximately 7), his father, Wayne Ridge or his cousin, Chad Lockwood, despite there being evidence that each was present at (or adjacent to) the skate park at the time of the collision. The absence of such witnesses and in particular, the absence of Kyle and Wayne Ridge, was the subject of detailed closing submissions, with the respondents both submitting that a Jones v Dunkel inference ought to be made in the absence of those witnesses being called.
The witnesses that were called for and on behalf of the applicant were all asked questions during examination-in-chief to ascertain precisely what they saw on the track and what they heard by way of announcements over the loudspeaker, during the lead up to, immediately prior to and at or about the time of the collision.
In order to explain the absence of these witnesses, the applicant gave evidence that his father, Wayne Ridge, was not in the skate park at the time of the collision but rather was in or near the family car, parked on Bagster Road and that Kyle Ridge was riding his scooter on the footpath adjacent to Bagster Road at the time of the collision. He gave evidence that Chad Lockwood was in close proximity to him at the time of the collision, but that Chad was in prison and he did not wish to involve him in the proceedings.
Carla Ridge gave evidence to the following effect:
1.That at the time of the collision, Wayne Ridge was putting baby Carter Ridge in the family car with his back turned to the skate park;
2.That at or about the time of the collision, Kyle Ridge was riding his scooter in the middle of the skate park near the nipple; and
3.Chad Lockwood had become involved with drugs and the wrong crowd, such that she did not wish for her children to be involved in similar and had sought to distance her family from him as a result.
During closing submissions, counsel for the applicant submitted that neither Kyle Ridge nor Wayne Ridge saw the collision, such that no adverse influence should be drawn from the applicant’s failure to call them to give evidence.[8]
[8] Applicant’s Outline of Submissions at trial at Appendix 6.
It was further submitted that as the applicant had had no contact with Chad Lockwood for a significant number of years, no adverse inference should be drawn from the decision not to call him to give evidence.
It is against this background that the applications must be determined.
Evidence Sought to be Called on Re-Opening
If permitted to re-open his case, the applicant intends to call further evidence from Carla Ridge, Tyler Ridge and Briana Tootell.
With respect to each of those witnesses, the applicant intends to question them specifically as to whether they recall a BMX demonstration, as described by Justin Dermody, taking place at the time of the collision. It is submitted that none of those witnesses gave evidence or were cross-examined on that specific topic at trial.
In addition, the applicant proposes to further cross-examine Justin Dermody. It was submitted that although Justin Dermody had been cross-examined in a way designed to illicit answers that the collision occurred in an open session, he had not been properly cross-examined as to his version of the demonstration and in particular, his evidence as to the steps leading up to and in preparation for such demonstration.
In addition, the applicant sought to call evidence from other witnesses who, it was submitted, would all be called to give evidence that the collision occurred during an open session and not during a BMX demonstration. The applicant identified five such witnesses, namely Kyle Ridge, Wayne Ridge, Chad Lockwood, Joshua Mezzatesta and Linda Weiss.[9]
[9] Noting the affidavits make reference to other potential witnesses, yet to be spoken to. I have confined my determination of the application to the fresh evidence specifically identified by the applicant.
Kyle Ridge
Counsel for the applicant submitted that an error had been made in the closing submissions at trial insofar as it was stated that Kyle Ridge did not witness the subject collision.[10]
[10] Applicant’s Outline of Submissions (FDN 78) at Appendix 6.
Andrew Nicholson deposed that Jason Fernandis first spoke to Kyle Ridge by telephone on 9 November 2020[11] and that during that conversation, Kyle Ridge gave brief confirmatory details about his observations of the incident and the conditions on the skate park at the time.[12]
[11] Being the day before the trial reconvened on 10 November 2020 and before any evidence was heard.
[12] Affidavit of Andrew Nicholson affirmed on 10 September 2021 at [22]-[23].
Mr Nicholson further deposed that a decision was then made, having regard to the content of the pleadings and other matters pertaining to the preparation for trial, that it was not necessary for Kyle Ridge to be further proofed and be called as a witness. Further, he deposed that on the basis of evidence given at trial by Corey Ridge and Carla Ridge, it was assumed by the solicitors and counsel for the applicant that Kyle Ridge did not witness the collision and the content of his earlier telephone conversation was overlooked.
Mr Nicholson deposed that if called, Kyle Ridge would give evidence that at the time of the collision: [13]
There were numerous riders on different apparatus on the skate park, that he heard an announcement for an open session, and that the subject incident occurred during an open session and not during a demonstration.
[13] Affidavit of Andrew Nicholson affirmed on 10 August 2021 at [13].
Wayne Ridge
Mr Nicholson has deposed that Wayne Ridge was not called as a witness at trial because he did not witness the collision and there were other witnesses available to give evidence about the collision and the conditions on the skate park.[14]
[14] Affidavit of Andrew Nicholson affirmed on 10 September 2021 at [19].
Mr Nicholson deposed that Wayne Ridge was first proofed in March 2021 on the issue of whether the collision occurred during a BMX demonstration.[15] He deposed that Wayne Ridge: [16]
… can give evidence that at or about the time of the subject incident, there were numerous riders on different apparatus on the skate park, and that he did not witness a demonstration or hear a demonstration announced immediately prior to the subject incident.
[15] Affidavit of Andrew Nicholson affirmed on 10 September 2021 at [20].
[16] Affidavit of Andrew Nicholson affirmed on 10 August 2021 at [12].
Mr Nicholson further deposed:[17]
If a dispute about the nature of the session or an alleged demonstration had been raised earlier, it is likely that Wayne and Kyle Ridge would have been proofed in more detail and called at trial.
[17] Affidavit of Andrew Nicholson affirmed on 10 September 2021 at [26].
Chad Lockwood
The applicant gave evidence at trial that about five minutes before the incident, Chad had told him ‘to be careful out there’ and that Chad, as his older cousin, was, in effect, supervising him in his parents’ absence.[18]
[18] T 142.3-5; T 142.22-30.
Mr Nicholson deposed that he was instructed not to pursue Chad Lockwood as a witness for trial because he was incarcerated at the time. He said he first became aware of Chad Lockwood’s version of events, namely that the incident did not occur during a BMX demonstration, in mid August 2021.[19] That information was said to have been conveyed to Mr Nicholson by way of a “short telephone discussion with him on one occasion”.[20]
[19] Affidavit of Andrew Nicholson affirmed on 10 September 2021 at [37] and [41].
[20] Ibid at [40].
Joshua Mezzatesta
Joshua Mezzatesta was first identified by the applicant as being a potential witness during the trial, when the second respondent produced an unredacted copy of the registration forms submitted by participants with respect to the event. Mr Mezzatesta was one of those participants.[21]
[21] Exhibit D12 at p 15.
Andrew Nicholson deposed that after the second respondent was granted leave to amend its Defence, he engaged an investigator to contact Mr Mezzatesta. He deposed that Mr Mezzatesta:[22]
… can give evidence that he was in attendance on the date of the event, that he heard an announcement for an open session and not a demonstration, that he was in close proximity to the Applicant at the time the subject incident occurred and saw it occur, and that the subject incident occurred during an open session and not during a demonstration.
[22] Affidavit of Andrew Nicholson affirmed on 10 August 2021 at [11(b)].
Mr Nicholson deposed that he was not aware of the Mr Mezzatesta’s version of events until early August 2021.[23]
[23] Affidavit of Andrew Nicholson affirmed on 10 September 2021 at [30].
Linda Weiss
Linda Weiss is a former employee of the second respondent whose name is on some of the documents tendered at trial (for example, the event risk management check list on page 10 of Exhibit P1).
Ms Weiss’ name appears on an ‘event evaluation’ document, produced by the second respondent under cover of a letter dated 22 September 2021, confirming that Ms Weiss was present at the evaluation meeting held after the event.[24]
[24] Exhibit JKF-3 to the Affidavit of Jason Karl Fernandis affirmed on 24 September 2021.
Mr Nicholson deposed that an investigator had contacted Ms Weiss and that she: [25]
… can give evidence that she was in attendance on the date of the event, that she was aware of the subject incident at the time it occurred, and that the subject incident occurred during an open session and not during a demonstration.
[25] Affidavit of Andrew Nicholson affirmed on 10 August 2021 at [11(a)].
Applicant’s Submissions on Re-Opening Applications
The applicant submitted that the interests of justice demanded that the applicant be entitled to re-open his case, in order to put him in the same position as he would have been, had the trial commenced and proceeded in accordance with the present pleadings.
The applicant submitted that the trial was conducted within the confines of the pleadings, as they existed during the trial, such that, during the trial:
1.The applicant fully dealt with the fourth respondent’s alternative pleaded case that the collision occurred during a BMX competition warm-up;
2.The applicant’s witnesses were not cross-examined (or examined) about the possibility of the collision having occurred during a BMX demonstration, as it was not pleaded and the respondents had previously been denied leave to amend their Defences to include such an assertion;
3.The evidence about the occurrence of the alleged BMX demonstration was limited to that given by Justin Dermody, in addition to very brief cross-examination of the applicant by reference to Facebook messages he had received from Justin Dermody prior to giving evidence; and
4.No other witnesses were examined or cross-examined about the occurrence of a BMX demonstration and no additional witnesses were called specifically on that topic.
It was submitted that in the event the applicant was not entitled to re-open his case, the evidence would be incomplete, as Justin Dermody’s evidence of a demonstration had not been properly and fully tested, nor put into context alongside evidence on the same topic from other witnesses.
It was submitted that there would be significant prejudice to the applicant if he was unable to fully meet the amended pleading, with no real prejudice identified by the respondents. It was submitted that if the application was granted, the additional evidence could be heard within two to three days.[26]
[26] See also Affidavit of Andrew Nicholson affirmed on 10 August 2021 at [19].
Counsel for the applicant approached the trial on the basis that the applicant was not required to prove that the collision occurred in an open session, having regard to pleadings as they stood at trial. This was notwithstanding the alternative case as pleaded by the fourth respondent at paragraph 4.6 of its Defence, namely that the collision occurred in a BMX warm-up.
The applicant’s position rested upon an interpretation of UCR 67.6(3), which interpretation I rejected as set forth in my Reasons dated 29 July 2021.
Whatever the correct interpretation of UCR 67.6(3), counsel for the applicant submitted that there was a significant difference between any requirement at trial to adduce evidence to support a case that the collision occurred in an open session, with that of adducing evidence to ‘rebut’ a new, competing affirmative case of a BMX demonstration.
In support of that proposition, counsel for the applicant referred to what was said both by Judge Soulio in his reasons for refusing the respondents’ applications to amend their pleadings before trial and what had been said by me in my reasons for refusing the second respondent’s application to amend on 6 October 2020, namely, that on the present status of the pleadings, there was no need for the applicant to have spoken to Justin Dermody before trial.
In hindsight, the observation made by me, was made in error.
As outlined in my Reasons dated 28 May 2021, in determining the second respondent’s application, made shortly prior to the commencement of the trial, I had regard to the applicant’s case as pleaded at paragraphs 6 to 15 of the First Statement of Claim, in addition to the matters advanced in the supporting affidavit and submissions.
It transpired that the evidence called by the applicant at trial as to the circumstances of the collision, was not consistent with the circumstances as pleaded. The circumstances as pleaded, if established, were entirely inconsistent with any suggestion that the collision occurred other than in an open session.
Since becoming fully appraised through the trial process of the nature of the evidence called by the applicant as to the circumstances of the collision, it is now readily apparent that any witness who could shed light on precisely how the collision occurred, was in fact, an important witness, to be proofed prior to trial and potentially called to give evidence. Indeed, the court learned, for the first time during the trial, that the applicant had, in fact, endeavoured to contact Justin Dermody before the trial.
As Justin Dermody was the other rider involved in the collision, this, in fact, meant that he was an important witness having regard to the specific defences as pleaded by both respondents. This is notwithstanding the absence of any allegation, at that time, that the collision occurred during a BMX demonstration.
Further, counsel for the applicant submitted that there was evidence available to ‘rebut’ that of Justin Dermody that the collision occurred during a demonstration and that it was in the interests of justice for such evidence to be heard by the court and considered, before the action was finally determined.
It was argued that it was not the case that tactical decisions had been made at trial, which had now been revisited, thus being the basis for the application to re-open. Rather, it was submitted the application was made solely to address the change in pleadings afforded by the recent amendments and to necessitate procedural fairness.
Finally, it was submitted that to the extent that the applicant’s lawyers were in error in interpreting the pleadings in such a way as to assume there was no requirement to prove the collision occurred during an open session, that this was not a tactical decision made by the applicant to deliberately exclude relevant evidence from the trial. Rather, it was submitted that this was a decision made in direct compliance with various rulings that had been made, both before and during the trial, relevant to the pleadings as they then stood.
In all of the circumstances, it was submitted that the interests of justice could only be served if the applicant was entitled to re-open his case and for the evidence to be completed.
Respondents’ Submissions on Re-Opening Applications
Counsel for the fourth respondent contended that notwithstanding the subsequent amendments to the pleadings, the state of the track and whether or not an open session was being conducted at the time of the collision, was a live issue on the pleadings as they stood at trial, requiring the applicant to present a case and call evidence addressing that issue.
It was submitted that not only was the issue the subject of an express pleading (paragraph 4.6 of the Fourth Respondent’s Defence) but that the case, as pleaded by the applicant, required him to prove at trial the state of the track immediately prior to the collision, both in a conceptual sense (what kind of session was occurring?) and in a more practical sense (were there any other riders on the track).
It was submitted that notwithstanding the applicant was well aware at the time of the commencement of trial of the substance of Justin Dermody’s likely evidence, he had conducted and opened his case at trial on the basis that the collision occurred in a chaotic open session. The applicant had then called evidence from various witnesses with respect to the state of the track, indicative of an understanding that such matter was in dispute.
It was submitted that having made a tactical and forensic decision to conduct his case on this basis, the applicant should be held to that deliberate tactical decision.
It was submitted that the burden lay with the applicant to demonstrate that the interests of justice required that he be granted leave to re-open and that the burden could not be discharged in circumstances where:
1.That as to each proposed new, or recalled witness, the applicant had not set out in detail the evidence to be adduced from that witness;
2.That with respect to each such witness, the applicant had not set out the substance of his or his solicitor’s understanding of either the availability of and/or the substance of that witness’ evidence, prior to trial;
3.In the case of Justin Dermody’s evidence, the applicant’s decision not to address, at trial, the evidence given by him in-chief as to the circumstances surrounding the demonstration could only have been a tactical attempt to avoid fighting the case on unfavourable grounds;
4.The applicant was always required to meet the alternative case as pleaded by the fourth respondent, namely the ‘BMX warm-up’ case and meet the allegations of contributory negligence, thus requiring the applicant to present evidence at court from all relevant witnesses whose evidence may assist on those topics.
5.The applicant had made a tactical decision not to consent to the proposed amendment to the pleadings requested by both respondents before the commencement of trial. It was submitted that this was part of a misguided and deliberate strategy to conduct a trial on an incorrect basis that there had been a comprehensive ‘admission’ about a free skate period.
As to calling further evidence from the applicant’s witnesses called at trial, it was submitted that Carla Ridge did not see the collision and had no useful recollection of the circumstances surrounding it. It was submitted that both Tyler Ridge and Briana Tootell gave comprehensive evidence at trial of their observations at the time of the collision, such that the only reason to recall them would be to impermissibly attempt to have them recant that evidence and give different evidence.
It was submitted that there was a fundamental misconception advanced by the applicant that different evidence may have been given by various witnesses (Carla Ridge, Tyler Ridge and Briana Tootell in particular) if the demonstration issue had been pleaded. It was submitted that at trial, counsel for the applicant would not have been entitled to ask leading questions of those witnesses. The witnesses had already been examined-in-chief at great length as to their recollection of the circumstances immediately prior to and at the time of the collision, thus necessarily incorporating any evidence that they were able to give as to their recollection of the state of the track, being the relevant matter in issue, at the time of the collision.
It was submitted that any new evidence given by those witnesses could now only be contrived and unhelpful.
As to the applicant’s proposal to call evidence from Wayne Ridge, Kyle Ridge and Chad Lockwood, it was noted that it was conceded by the applicant that Wayne Ridge did not see the collision and further that during the course of the trial, the absence of those three witnesses was explained, from which it could be inferred that their evidence was not considered to be significant in terms of advancing the applicant’s case.
As to Justin Dermody, counsel for the fourth respondent outlined in detail the manner in which he was cross-examined at trial and submitted that the rule in Browne v Dunn had been complied with, having regard to the questions put by Mr Lindsay to Justin Dermody in cross-examination. He referred expressly to the following transcript:[27]
[27] T 445.32-447.9.
Q.Can I suggest to you, Justin Dermody, that on this occasion, on the run on which you collided with Corey, you were doing a practice run.
A.From my recollection, it wasn't a practice run, but it was the first time that I'd done it on that day. I'd practiced it several days before.
Q.If you were going to perform in a demonstration you would want to practice the trick first; wouldn't you.
A.Yeah, and for two to three days before the actual competition I was at the skate park practicing different runs and trying to figure out the best line for me to be able to run on that day.
Q.You would also want to practice it on the day.
A.Yeah, usually we would, yes.
Q.So because this was the first time you'd done this trick on the day, I suggest to you that this was a practice run and not a demonstration.
A.Yeah, it could have been a practice run for me, Daniel and David.
Q.One of the things that's possible, if it was a practice run, is that this was just an occasion when you saw an opportunity to drop in and do your run.
A.No.
Q.And that it's possible that when you were sitting up on the top of the ramp there, looking around, you were just waiting for an opportunity to do a run.
A.I was just waiting for Daniel to end up where he had stated that he would finish his run and then I'd take off from there.
Q.It's possible that this run occurred during a free session.
A.It is very possible, yes, 'cos on the day the sound and everything, nothing was very clear from the announcements.
Q.When you emerged from the bollards and headed across the ramp, what area were you focused on.
A.The bank because I focus on the trick I'm doing at the time and then once I've landed then I'll focus on my next trick.
Q.It's possible that away from the bank and away from the area between the ramp and the quarter pipe, there were other people on the park.
A.Yeah, there was other people around the park and getting ready to do what they were going to do.
Q.I mean including, as well as the perimeter of the park waiting to get in, also on the body of the park, on the floor of the park.
A.On the floor of the park there was Daniel and David only up on the berms.
Q.Is it possible there were other people on the floor of the park that you didn't see because you were concentrating on your manoeuvre.
A.Yeah, that is possible.
It was submitted that by this cross-examination, counsel for the applicant had directly challenged Justin Dermody’s evidence that it was a demonstration and directly put to him that the collision occurred during a free skate period.
The fourth respondent submitted that there was no prejudice to the applicant in refusing leave to re-open his case, noting that the case as pleaded at trial required the applicant to meet the alternative case as advanced by it that the collision occurred during a closed session, and that it remained for the applicant to establish on the balance of probabilities that the collision occurred during an open session.
It was submitted there would be significant prejudice to the respondents if leave to re-open was granted, arising from the fact that all parties had closed their respective cases, with the applicant having the benefit of very detailed closing submissions, highlighting the deficiencies in his pleading and in his case. It was submitted that the interests of justice were better served in rejecting the applicant’s application.
Further, it was submitted that if the applicant was allowed to re-open, there would be a necessity for each of the witnesses called to be cross-examined and insofar as new witnesses were called, the respondents would seek to cross-examine at large. Further, there may be a ‘potential knock-on effect’ with respect to the evidence to be sought to be led by the respondents. For example, additional evidence may need to be called from Mr Ottoway and Mr Pigou.
Finally, it was submitted that the parties would be required to close again, or at least to significantly modify their closing submissions.
As a result, allowing the applicant to re-open, effectively required the trial to be ‘re-run’, imposing a significant cost burden on the parties and requiring much more than a further two to three days to complete.
Counsel for the second respondent placed emphasis on the existence of the various Facebook Messenger posts which were tendered at the trial as Exhibit D5. These were messages exchanged between the applicant and Justin Dermody prior to any evidence being called during the trial.
Those messages had been initiated by the applicant well prior to any application by either respondent to amend its Defence, thus supporting the respondents’ proposition that at all material times, the evidence of Justin Dermody was in fact considered of relevance by the applicant, contrary to the position advanced by counsel for the applicant when the applicant opposed the second respondent’s second application to amend on 6 October 2020.
It was submitted that as early as February 2020, the applicant’s solicitors had in fact turned their minds to Justin Dermody and wanted to speak to him as to his recollection of the collision circumstances. Further, the content of those messages was such that as at 3 November 2020 and therefore prior to any evidence being heard at trial, the applicant was fully aware that Justin Dermody maintained the position as set forth in his statement, previously provided to all parties in support of the second respondent’s second application to amend, that the collision had occurred during a demonstration.
The applicant knew that Justin Dermody had been subpoenaed to give evidence.
As such, prior to any evidence being called at trial, the applicant was on notice that there was a real and appreciable likelihood that Justin Dermody would give evidence consistent with that as set forth in his statement and in the Facebook messages, namely that the collision occurred during a closed session rather than an open session and specifically, that it occurred during a BMX demonstration.
Notwithstanding that knowledge, it was submitted the applicant had made a forensic decision to run the case as he did and even after the Facebook Messenger posts were produced and tendered, had determined not to call further evidence or apply to adjourn the trial in order to recall witnesses or call further evidence, to rebut Justin Dermody’s version.
It was submitted that the applicant should not be afforded the opportunity to revisit the deliberate forensic decisions made during the trial.
The Law on Re-Opening
As outlined in Urban Transport Authority of New South Wales v Nweiser,[28] the guiding principle for a 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 by rejecting, the application.
[28] (1992) 28 NSWLR 471.
In that case, counsel for the appellant had made a deliberate decision not to call a witness, as he considered the evidence to be given by that witness went solely to credit. However, shortly after the evidence closed, the appellant applied to re-open its case to call that same witness, after counsel had revisited the purpose of the evidence to be elicited and reached the conclusion that it went beyond matters pertaining to credit and was fundamental to issues in dispute.
The trial judge refused the application for two reasons; namely that the witness had not been called as a result of a deliberate decision by counsel and that the evidence was not of such importance as to require the appellant to be permitted to re-open its case to call that witness.
On appeal, Clarke JA noted that the decision made by the trial judge was a discretionary one, such that the Appeal Court could only interfere if there had been a failure to properly exercise that discretion at law.
He went on to say:[29]
Where, as here, a defendant announced the closing of its case and, there being no case in reply, a short time later sought leave to re-open because its counsel realised he had made a mistake it is difficult to discern how the interests of justice would be furthered by disallowing an application to re-open to call evidence which was clearly relevant to, and may have had a significant impact on, the issues in the case. It is true that the fact that there has been a deliberate decision not to call the witness whose evidence it is later sought to lead in a re-opened case is a relevant consideration. There may be a number of reasons why a deliberate decision is made. It may, for instance, be made for tactical reasons.
On the other hand it may be that in the heat of the moment counsel has inadvertently overlooked facts proven in the opponent’s case or has otherwise acted on some misapprehension. Where the failure to lead evidence from a witness whom it is afterwards desired to call results from a tactical decision by counsel the courts will usually be disinclined to grant an application to re-open. Even in these circumstances, however, the court has a discretion to grant an application by a party to re-open its case and the interests of justice may dictate that the application be allowed. In short the fact that a deliberate decision was taken for tactical reasons is not decisive but remains an important factor.
If, however, counsel inadvertently fails to call a witness different considerations arise and as it seems to me, if counsel makes a deliberate decision based on a mistaken apprehension of the nature of the evidence called against his client or the admissibility of the evidence which he seeks to call the justice of the case may well point to the granting of the application. The decision made by counsel in this case although a deliberate one stands in a very different category from one based on tactical grounds. It is more appropriately regarded as one in which counsel had made a mistake or failed to appreciate the relevance and admissibility of the evidence which he omitted to lead.
[29] Ibid at pp 475-476.
These principles were applied by the Supreme Court of Western Australia in Westgem Investments P/L v Commonwealth Bank of Australia Ltd [No 5].[30]
[30] [2019] WASC 310.
In FYD Investments P/L v Promptair P/L,[31] Justice White identified various considerations that bear on the interests of justice in a case where there had been an error by a party’s lawyers. The considerations identified by White J included:
(a)The public interest (and the interests of the particular parties) in litigation being conducted efficiently and expeditiously;
(b)The public interest in the finality of litigation, with the consequent expectation that litigants will present all their evidence and submissions at the one hearing;
(c)The significance of any proposed new evidence and submissions in the context of the trial;
(d)The explanation for the evidence not having been led at trial;
(e)The likely prejudice to the opposing party if the application is allowed;
(f)The potential detriment to the applying party if the application is refused; and
(g)Any delay by an applicant in seeking leave to re-open.
[31] [2017] FCA 1097 at [32].
These principles are those to be considered by the court in any event when determining whether it is in the interests of justice for any party to be given leave to re-open their case.
As outlined by Kirby J in Goldsmith v Sandilands:[32]
The guiding principle for the grant or refusal of leave to call evidence in response to the evidence of another party, where this is sought by a party, is, ultimately, what the justice of the case – including procedural fairness – requires. That principle should not become unduly entangled in precedents or procedural rules.
Whilst efficiency and economy in the conduct of civil trials are important requirements of the contemporary trial process, those objectives are valid only as they contribute to just outcomes … (citations omitted)
[32] (2002) 190 ALR 370 at [58]-[59].
Further, in Re Australasian Meat Industry Employees’ Union (WA Branch); Ex parte Ferguson,[33] Toohey J stated that:
In situations where a hearing has concluded but judgment has been reserved and not delivered, it has been said that fresh evidence should be admitted only when it is so material that the interests of justice require it; the evidence if believed would most probably affect the result; the evidence could not by reasonable diligence have been discovered before; and perhaps that no prejudice would ensue to the other party by reason of the introduction of the evidence so late.
[33] (1986) 67 ALR 491 at 493-494.
Discussion/Consideration – Re-Opening
I have carefully considered the applications to re-open, having regard to the criteria outlined in these decisions.
It is certainly arguable that all evidence relevant to the issue of whether, or not, the collision occurred during an open session, was relevant having regard to the state of the pleadings at trial in any event, having regard to paragraph 4.6 of the Fourth Respondent’s Defence.
However, the applicant successfully opposed several applications made, before trial, wherein the respondents specifically sought to plead that the collision occurred during a BMX demonstration. Having done so, counsel for the applicant made certain decisions as to the necessity to call various witnesses and to pursue further investigations. I accept that those decisions were influenced by counsel’s view that UCR 67.6(3) applied to what was said to be an admission in para.4.6 of the Fourth Respondent’s Defence, being a position contrary to that adopted by me in my recent Reasons.[34]
[34] Ridge v City of Salisbury Council & Anor (No.2) [2021] SADC 87 at [63].
I am satisfied, therefore, that this case falls within the category as referred to by Clarke JA in Urban Transport Authority, in that, insofar as some relevant and admissible evidence was not called, or pursued prior to trial, this was as a result of a misapprehension of the relevance of that evidence, rather than any specific tactical decision made by the applicant.
If there is additional evidence, which is significant and relevant having regard to the issues in dispute on the present state of the pleadings, which was not called by the applicant because of that misapprehension, there will be resulting prejudice to the applicant.
I am conscious that allowing the applicant to re-open his case will add additional time and expense to this already long and expensive proceeding. There is considerable public interest in this trial concluding. It remains a possibility, that as a result of allowing any re-opening of the evidence, the respondents may need to recall various witnesses to give evidence by way of reply.
The respondents will suffer some prejudice if the applications to re-open are allowed in any form, being the additional costs associated with the hearing of such evidence and any further evidence required to be called by the respondents by way of rebuttal. As to the other prejudice identified by the respondents, I have expressly considered that prejudice in determining what evidence may be called by the applicant if allowed to re-open his case(s).
However, after carefully considering all of the relevant criteria, I am satisfied that it is in the interests of justice for the applicant to re-open his case against the second and fourth respondents.
That being said, I am not satisfied that the justice of the case requires all of the evidence sought to be adduced by the applicant to be heard on the re-opening.
As such, I will address each category of evidence sought to be called, in turn.
Application to recall witnesses already called by the Applicant
It is important to revisit aspects of the evidence given by the witnesses at trial in order to determine whether there is any further evidence that could be given by them which is of significance, having regard to the issues in dispute.
Carla Ridge
Carla Ridge gave evidence that immediately prior to the collision she was sitting in her car watching Kyle. She described Kyle as being “like in the middle of the skate park”. She said her husband, Wayne Ridge, was placing the baby, Carter, in the car so that his back was to the skate park. She then gave the following evidence:[35]
[35] T 247.16–248.17.
Q.Then what did you see, or observe.
A.So I was just watching Kyle, and then all of a sudden my oldest son Tyler came running up to me saying that Corey had been in an accident.
Q.When you were watching Kyle, were there other people around him.
A.Yes, there was.
Q.How many and what sort of people.
A.Unable to give numbers, but Kyle was just, like I was concentrating on Kyle. But there was people also around him, doing their stuff.
Q.You say doing that stuff - what stuff.
A.Riding their scooters, yep.
Q.On the skate park.
A.Yes.
Q.Did you say whether or not you could give numbers.
A.No. It was busy.
Q.Just want to be clear about that. What was busy - was it that you were busy and couldn't do it, or that the skate park was busy.
A.The skate park was quite, quite busy.
Later she said that she had been sitting the car for “probably like 20 minutes” before Tyler came to tell her about the accident.
She was asked the following:[36]
Q.In that period of time, how much of that time did you spend looking back across the skate park.
A.My eyes were just, I was just watching Kyle and just watching everything, really, I didn't concentrate on my older boys.
Q.In that period of time, was there anything different happening on the skate park from when you walked past it.
A.No.
Q.Did you see any events take place.
A.No.
[36] T 259.29–260.1.
In cross-examination, Carla Ridge was asked specific questions about announcements over the PA system during the event. She gave the following evidence:[37]
[37] T 278.4-15.
Q.There were announcements happening over a PA system while you were there, weren't there.
A.No.
Q.You didn't hear any announcements.
A.That's correct.
Q.That's not true, is it.
A.I just said no. I did not hear any announcements.
Q.There was music playing over a PA system.
A.Yes.
Q.In fact you did hear announcements asking, for example, the park to be cleared every now and then.
A.No. I did not hear any announcements.
She gave the following evidence:[38]
[38] T 283.1-15.
Q.Now, I think I just have to put, out of fairness to you, going back to Kyle, and I'm sorry, I should have asked you this before. By the time Tyler came running over, I suggest Kyle was nowhere near the skatepark, he was back with you.
A.No, Kyle was on the skatepark.
Q.And in fact, the park had been cleared of kids on scooters or anything other than BMXs.
A.No, that's incorrect.
Q.There'd been an announcement over the PA.
A.There was no announcement.
Q.And the park had been cleared for the next event, which was a BMX event.
A.The park was not cleared. There were kids on the park and there was no announcement.
Briana Tootell
Briana Tootell was asked, during examination-in-chief, specific questions addressing her recollection of the state of the skate park (in other words, was it being used for an open session, or not) immediately prior to the collision. She gave the following evidence:[39]
[39] T 315.2-22; T 316.10-30.
Q.When you were standing on the quarter-pipe, just before Corey went down on the occasion on which he was injured, so just before we went down, when you were standing up there at that time, did you have a view as to other people on the park.
A.Yes.
Q.What was in your view.
A.Well, Corey obviously, and then he was standing and watching him.
Q.My question was about other people on the park, in the space.
A.In that area, no one, no.
Q.What do you mean by 'that area'.
A.Well, as people were skating, usually one at a time, at that point of time, when I seen Corey, he was alone in there. But that's this.
Q.Can I direct your attention then, I'm still talking about the same time, further around from that quarter-pipe area, back around to what would be your left. Were you aware of other people in the skatepark.
A.No.
…
Q.Had you observed anything about any other people near the quarter-pipe just before Corey went down.
A.No.
Q.Did you watch Corey as he went down.
A.Yes.
Q.What did you see, break it down and do it in pieces.
A.Pieces, okay, well basically he started up from the top and as he went to go down, he skated and basically the incident happened. That's it.
Q.What's the incident.
A.He got hit.
Q.Did you see when he got hit.
A.Yes.
Q.What did you see.
A.A person on a bike and basically just collided with Corey.
Q.Did you see where that person came from.
A.No.
Q.When was the first time you saw the bike before the collision.
A.As he came into contact with Corey.
Ms Tootell was also asked as to whether she heard any announcements being made at or about the time of the collision. She gave the following evidence:[40]
Q.In the little while, let's say in the five minutes or so, before Corey went down the ramp and was injured, did you hear any announcements being made.
A.Sorry?
Q.In the little while, before Corey went down the ramp and was injured, did you hear any announcements being made.
A.I don't remember.
Tyler Ridge
[40] T 319.3-10.
Tyler Ridge gave evidence at trial as to his recollection of the collision.
He gave evidence about hearing an announcement before the collision. He gave the following evidence:[41]
Q.What announcement did you hear.
A.That it was free break, lunch time, everyone gets a free ride, and that's when everyone started going on the skate park, and started getting lunch.
Q.At the time of that announcement, where were you standing.
A.At the announcement?
Q.Yes.
A.I was on the quarter-pipe, in that corner.
[41] T 329.11-19.
In cross-examination, Tyler gave more evidence with respect to the timing of the announcement about the free period:[42]
[42] T 346.36–348.23.
Q.And then you described hearing an announcement about a lunchbreak and free period.
A.Yes, that's right.
Q.That's when you guys actually went and grabbed a sausage or whatever it was, wasn't it.
A.Yes, that's right.
Q.So, you actually left that area at the top of the quarter-pipe.
A.For a few minutes, yeah.
Q.Went behind you, basically, down the slope.
A.Yeah.
Q.So away from the park.
A.Yes, that's right.
Q.And there was a, I think, a Blue Light police setup.
A.Yes, there was, yep.
Q.Maybe a sausage sizzle and another food van or two.
A.Yep.
Q.And there was a weird looking thing where you could put on a Velcro suit and be launched into a wall and stick to the wall, do you remember that.
A.I don't remember that, no.
Q.You don't remember that. Anyway, you went that way where the sort of side show stuff was.
A.Yes, that's right, yeah.
Q.Do you remember a graffiti art show as well.
A.Yes, there was, yep.
Q.So, from where you started up at the top of the quarter-pipe, that was in the car park kind of behind you.
A.Yep, it was like mainly towards like - over towards the park area.
Q.Yes, towards the oval, the footy oval.
A.Yes.
Q.And then the food was sort of if you come around on a clock, around to the right, sort of behind the tree there.
A.Yes, that's right, yeah.
Q.And then heading back towards the skatepark that's where the tents were, then you're back on the park.
A.Yep.
Q.So, you went back there sometime after that announcement and grabbed something to eat.
A.Yep.
Q.And then you described, I think, around the same time, maybe a little earlier, heading over to the barbecue area or the building with the white Colorbond roof.
A.Yes, the ...
Q.What time was that.
A.It would have been -
Q.Sorry, let me be a bit fairer because you wouldn't remember the clock time but relative to the accident, how long before was that.
A.20 minutes - 15 minutes.
Q.Okay, so you got the food first.
A.Yep.
Q.Did you go back to the quarter-pipe area.
A.I did, yeah.
Q.And maybe ate up there.
A.Yep.
Q.And then went over to the seating area.
A.Yes, that's right just to see mum and dad quickly and then went back to the quarter-pipe.
Q.And then after that, the accident happened.
A.Yes.
During examination-in-chief, questioning of Tyler proceeded on the basis that the collision occurred shortly after he had heard the ‘free break’ announcement, being inconsistent with the evidence he gave in cross-examination on that topic.
In-chief, Tyler was asked how many people he could see on the park after the ‘free break’ announcement was made and he gave the following evidence:[43]
A.There was a few people on there. There was about probably 30 people on the park at the time.
HER HONOUR
Q.How many people.
A.About 30; 25-30. Everyone was just doing their own thing watching out for each other and then it started to get a little bit quieter and then picked up again and that's when a few minutes later the accident happened.
[43] T 331.10-18.
He also said that the people he saw on the park at that time were on different types of equipment.[44]
[44] T 331.23.
In cross-examination, Tyler was asked whether it was possible he had heard any other announcement, telling people other than BMX riders, to clear the park, prior to the collision and he could not recall any such announcement and he did not think that there was one.[45]
[45] T 351.25–352.4.
Further, he agreed that at or about the time of the collision his attention was on the applicant, such that he was not really looking at the rest of the park.[46]
Discussion/Findings
[46] T 352.22-25.
Counsel for the applicant submitted that it was necessary for Carla Ridge, Tyler Ridge and Briana Tootell to be recalled so that he could expressly enquire of them as to whether they observed a BMX demonstration of the type described by Justin Dermody, immediately prior to the collision.
Those three witnesses have already given comprehensive evidence as to what they recall seeing and hearing at the skate park, in the period leading up to and immediately prior to the collision. The evidence given by them incorporates what they observed as to who was on the track immediately prior to the collision and the types of apparatus being used on the track. It incorporates whether they heard any announcements and if so, the nature of those announcements.
The evidence given by them, already covers the specific issue as to what was the state of the skate park at the time of the collision. In other words, was it being used for an open session, was it being used for a BMX warm-up or was it being used for a BMX demonstration.
In my view, there is no utility to be gained in recalling those witnesses to give evidence, as they have already been extensively questioned on this specific topic in issue. I am not satisfied that such evidence will have any, let alone significant, impact on the issue in dispute, namely whether, at the time of the collision, the skate park track was being used for an open session, a BMX warm-up or a BMX demonstration.
I decline the applicant’s application to recall evidence from Carla Ridge, Briana Tootell and Tyler Ridge.
Application to call evidence from Kyle Ridge, Wayne Ridge and Chad Lockwood
The applicant was questioned extensively as to where his father, Wayne and his younger brother, Kyle, were at or about the time of the collision and what they may have observed.
The applicant gave evidence, which he repeated on several occasions, that at the time of the collision, his father was sitting in the car watching his younger brother, Kyle, riding his scooter on the footpath. He maintained that his father had not seen anything of the collision.[47]
[47] T 203.19-24; T 206.10-15.
I have previously outlined the evidence given by Carla Ridge as to what she observed at or about the time of the collision. She said that she was watching Kyle from where she was sitting in the car parked on Bagster Road and estimated she had been doing so for approximately 20 minutes before the collision. She said she was concentrating on Kyle.
She gave the following evidence with respect to her husband:[48]
[48] T 283.33-284.12.
Q.While that was taking place, while you were in the car watching Kyle, where was your husband.
A.He was packing away the pram and capsule. He wasn't observing.
Q.How long were you in the car for, after arriving back, before Tyler ran over to you to say that Corey had been hurt.
A.Probably 20 minutes, 25 minutes, yep.
Q.So after your husband had packed away the capsule and sorted that out, where did he go.
A.Then he went to the driver's seat.
Q.Yes.
A.Sat in the car.
Q.With you.
A.Yep.
Q.For the whole time.
A.Correct.
She confirmed that her husband did not see the accident.[49]
[49] T 288.18-19.
Kyle was aged approximately seven at the time of the collision. The collision occurred more than 12 years ago.
Ms Carla Ridge gave evidence that since the collision, the family had engaged in numerous discussions about the accident circumstances.
It is now over 12 years since the collision occurred. Given Kyle’s young age at the time, in my view it is inconceivable that any recollection Kyle now claims to have of the specific details of that day, over and above a general recollection of being at the skate park and the collision occurring, has not been influenced by the fact of those discussions and the passage of time.
Having regard to Wayne Ridge’s location and movements as described by the other witnesses at or about the time of the collision, I am not satisfied that any evidence he may now be able to give will be such as to significantly impact on the specific issue in dispute, namely whether the collision occurred during an open session, a BMX warm-up or a BMX demonstration.
It is quite clear that a forensic decision was made at the time of the trial, that any evidence that could be given by either Kyle or Wayne Ridge, was likely to be of limited, if any assistance, having regard to the other evidence to be called. The witnesses that were called by the applicant were examined carefully, in chief, as to their recollection of what was happening on the track immediately before and at the time of the collision, and what, if any, announcements they heard, demonstrating that the applicant knew these topics were important topics required to be covered by the evidence. It must follow that the applicant considered that those witnesses, rather than Wayne or Kyle, were best placed to speak on those topics.
Having regard to all of the evidence and the criteria set forth in the various authorities on re-opening, I am not satisfied that the interests of justice demand that the applicant be entitled to re-open his case to call evidence from either Kyle or Wayne Ridge.
The application to re-open to call evidence from Chad Lockwood falls into a slightly different category.
Both the applicant and the applicant’s mother gave evidence to the effect that Chad Lockwood was not called given the fact that he was in prison.
Further, Mr Nicholson deposed that he had been instructed, by the applicant, not to pursue Chad Lockwood as a witness because of the fact of his incarceration.
The applicant gave evidence that Chad Lockwood was standing in close proximity to him at the time of the collision and that some time prior to the collision, Chad Lockwood had warned him to be careful. As such, Chad Lockwood appears to have been best placed, of all of the applicant’s potential witnesses, to give evidence as to his recollection of the circumstances of the collision, and of the state of the track at the time of the collision.
Mr Nicholson has deposed to the effect that Chad Lockwood’s version of events is that the collision did not occur during a BMX demonstration.
While Chad Lockwood’s evidence would, in my view, have been relevant in any event to the issues in dispute on the pleadings at trial, I accept that the applicant’s case proceeded on a different interpretation and understanding of the effect of UCR 67.6(3). I further accept that had the applicant understood either that he was required to prove that the collision occurred in an open session, or, at the very least, to meet an alternative case that the collision occurred during a BMX demonstration, that further steps would have been taken by the applicant to properly proof Chad Lockwood before trial and to call him to give evidence.
I am satisfied that the applicant’s decision not to call Chad Lockwood at trial was not a deliberate tactical decision, rather it was a decision influenced by numerous factors, including the position adopted by counsel with respect to UCR 67.6(3).
In such circumstances, I am satisfied that it is in the interests of justice for the applicant to be entitled to re-open his case to call evidence from Chad Lockwood.
Application to call evidence from new witnesses
The applicant has identified two new witnesses who he seeks to call to give evidence, namely Joshua Mezzatesta and Linda Weiss.
Joshua Mezzatesta’s identity was only ascertained during the course of the trial when the second respondent produced the registration forms containing details of each registered event participant.
The importance of any evidence to be called from Linda Weiss only became apparent upon the production of the event evaluation document which confirmed that she was present at the evaluation meeting held after the event.
Mr Mezzatesta’s evidence, being that of an independent witness, is potentially important. It is submitted he can give evidence of hearing an announcement of an open session, and that he saw the collision occur during an open session.
As to the evidence proposed to be called from Ms Weiss, the applicant has been deliberately ambiguous in terms of the basis of any recollection she may now have as to the collision circumstances. It may be, that as submitted by the respondents, her evidence is of limited weight, it being influenced not from what she saw or heard, but from what she may have heard from others, or read in documentation. However, this will not be able to be determined until such time as Ms Weiss gives her evidence. Ms Weiss was formerly employed by the second respondent. If she did make observations of the state of the track immediately prior to or at the time of the collision or if she did hear any announcements at about the time of the collision, this is important evidence, that the court should hear.
I am satisfied that it is in the interests of justice for these two witnesses to give evidence, at trial, outlining their recollection of the circumstances of the collision, including their recollection as to the state of the track immediately prior to the collision (ie how many riders were on it and what apparatus were they using) and any announcements they may have heard with respect to the use of the track at or about the time of the collision.
I am satisfied that such evidence is both relevant, and potentially significant, in terms of the issues in dispute in this case.
Application to recall Justin Dermody for further Cross-Examination
The remaining aspect of the application concerns the application to recall Justin Dermody for further cross-examination.
Justin Dermody was cross-examined, as previously outlined, on the specific issue as to the accuracy of his recollection that the collision occurred during the course of a BMX demonstration. The manner in which he was cross-examined made it clear that the applicant’s case was, contrary to Justin Dermody’s evidence, that the collision occurred in an open session and not during a BMX demonstration.
As submitted by Mr Lindsay, Justin Dermody was not cross-examined specifically on his version of the demonstration that is, the evidence he gave about talking to Russell Trainor about undertaking a demonstration and the evidence he gave about his friends, Daniel and David, undertaking demonstrations, immediately prior to him dropping into the park and the collision occurring.
Counsel for the applicant submitted that he had not cross-examined Justin Dermody in that way, as to do so would have opened up the topic of the demonstration which went beyond the pleadings as they were at the time of trial.
The rule in practice known as the rule in Browne v Dunn[50] has been formulated as follows by Hunt J:[51]
It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.
[50] (1893) 6 R 67 (HL).
[51] Allied Pastoral Holdings P/L v FCT [1983] 1 NSWLR 1 at 16.
Ancillary to this, is that if the court is to be invited to disbelieve a witness, the grounds upon which the evidence is to be disbelieved should be put to the witness in cross-examination so that the witness may have an opportunity to offer an explanation.[52]
[52] Billage Cay Marina Ltd v Acland [1998] 2 BCLC 327 at 338.
Counsel for the applicant clearly put to Justin Dermody the applicant’s case, namely that it occurred during an open session, being the nature of the case upon which he relied in contradiction to the evidence of Justin Dermody.
Justin Dermody was cross-examined by the fourth respondent immediately prior to being cross-examined by the applicant. During cross-examination by Mr Bullock, Justin Dermody was asked numerous questions pertaining to the details leading up to and including the alleged demonstration. This included cross-examination with respect to his conversations with Russell Trainor and the movements of Daniel and David before the collision. While that specific evidence was not fully tested, insofar as it was not the subject of cross-examination by the applicant, that evidence is only ancillary to the real issue in dispute, namely the state of the track when the collision occurred.
Justin Dermody was a reluctant witness. He only attended the trial and gave evidence upon subpoena. The text messages he exchanged with the applicant demonstrated that his sympathy lay very much with the applicant.
The nature of his evidence changed significantly from that in-chief to that he gave under cross-examination by the applicant, during which he made a number of concessions, being inconsistent with the evidence given by him in-chief.
In my view, the manner in which Justin Dermody was cross-examined did fairly put to him the applicant’s case, insofar as it contradicted his evidence, namely that the applicant maintained that the collision occurred during an open session and this was put directly and fairly to Justin Dermody in order for him to comment.
Recalling Justin Dermody, in my view, will add little, if anything, to the evidence already elicited from him as previously outlined.
In the circumstances, I am not satisfied that it is in the interests of justice for Justin Dermody to be recalled for further cross-examination at trial.
Strike Out Applications
By FDN 112 dated 3 September 2021, the second respondent seeks an order that the applicant’s Reply be struck out, or in the alternative that paragraph 1.3 of the Reply be struck out.
The second respondent’s Defence – Revision 2, pleads, inter alia:
6.In relation to the allegations in paragraph 6 of the Second Statement of Claim, the second respondent says that:
…
6.3 a representative of the fourth respondent announced that the skate park track was available for a free skate period or for a BMX demonstration or for a BMX competitors warm up session prior to the alleged incident.
…
8.In relation to the allegation in paragraph 8 of the Second Statement of Claim, the second respondent says that a representative of the fourth defendant announced the commencement of a free skate period or a BMX demonstration or a BMX competitors’ warm up session.
9.In relation to the allegations in paragraph 9 of the Second Statement of Claim, the second respondent says only that during free skate periods the skate park was open for use by members of the public riding BMX bicycles, skateboards and scooters, but that access to the skate park was restricted as announced by representatives of the Fourth Defendant during a BMX demonstration or BMX competitors’ warm up session.
As there was no specific order made by the court to facilitate the filing of the Reply to this amended pleading, the Reply was filed pursuant to UCR 69.4(1). That Rule states:
If a party amends a Claim or pleading, a responding party may amend its pleading in response to the Claim or pleading consequentially on the amendment.
The Reply states:
In relation to paragraph 9 of the Second Respondent’s Defence (Revision 2), if, which is denied, representatives of the Fourth Defendant (sic) announced a BMX demonstration:
1.1The announcement itself was not made clearly in words, volume or otherwise to warm skate park users, including the Applicant of an unscheduled demonstration;
1.2It was necessary to ensure the skate park was clear of people entering or about to enter the skate park before the demonstration commenced and this was not done;
1.3It was necessary for steps additional to the announcement to be taken in the nature of a barrier to separate skate park users and spectators from those performing a demonstration and such steps were not taken.
By FDN 114 dated 27 September 2021, the fourth respondent also seeks an order striking out the applicant’s Reply or in the alternative that paragraph 1.3 of that Reply be struck out.
The amendment to the fourth respondent’s Defence, resulted in a revised pleading at paragraph 4.6, namely:
In response to the allegations contained in paragraph 6 to 15:
…
4.6it says the collision occurred whilst the applicant was riding a scooter in the skate park whilst the applicant was riding in the skate park at a time when the skate park was closed to riders other than BMX riders participating in a BMX demonstration or alternatively the ‘BMX’ competition warm up.
The applicant was granted leave to file and serve a Reply in response to the amendments made to the fourth respondent’s Defence. The Reply states:
In relation to paragraph 4.6 of the Fourth Defendant’s (sic) Defence (Revision 1), if, which is denied, representatives of the Fourth Defendant (sic) announced a BMX demonstration:
1.1The announcement itself was not made clearly in words, volume or otherwise to warm skate park users, including the Applicant of an unscheduled demonstration;
1.2It was necessary to ensure the skate park was clear of people entering or about to enter the skate park before the demonstration commenced and this was not done;
1.3It was necessary for steps additional to the announcement to be taken in the nature of a barrier to separate skate park users and spectators from those performing a demonstration and such steps were not taken.
In each instance, it was submitted that the Reply filed is not responsive to the amended pleading and instead seeks to raise new allegations of fact, which were not raised at trial, despite the applicant’s requirement to answer the alternative case pleaded by the fourth respondent, namely ‘the BMX warm-up’.
The respondents object, in particular, to paragraph 1.3 of each Reply, on the basis that it seeks to introduce a new allegation that was not part of the applicant’s case at trial, relating to an alleged failure to provide a barrier to separate skate park users and spectators from those on the track performing a demonstration.
It was submitted by both respondents, that as the pleadings at trial included an allegation by the fourth respondent that the collision occurred during a ‘BMX’ competition warm-up, whether the track was open to all users or closed only to a certain class of users, was an issue in dispute on the pleadings at trial. Thus, any case to be advanced by the applicant that it was necessary for a barrier to be installed to exclude users from the track during closed sessions, was an allegation that ought to have been made in a Reply filed in response to the fourth respondent’s Defence and advanced during the trial.
Similarly, it was submitted that as it had always been a part of the fourth respondent’s case that a closed BMX session was underway at the time of the collision, the allegations in sub-paragraphs 1.1 and 1.2 in the Reply pertaining to the announcement and clearing of the track, did not arise from the amendment.
Further, the fourth respondent submitted that if the Reply (and in particular paragraph 1.3) was allowed to stand, there may be a requirement for it to obtain expert evidence as to whether the provision of a barrier was a workable way to control crowds at a skate event. In addition, it may need to locate and call evidence from others who had attended or organised similar events to address the question as to whether the provision of a physical barrier around the entirety of the track was, in any event, practical or done at any other similar events as at April 2009.
The applicant submitted that the Reply in each instance went no further than as allowed under the Rules. In each instance, the Reply denied the new affirmative facts pleaded by the respondent and gave fair notice of the applicant’s response to those new facts.
Fundamental to that submission was a submission that a ‘BMX demonstration’ is factually different from a ‘BMX warm up’ in that during a demonstration, the track is closed to everybody except a single rider on a BMX, with that rider giving a demonstration of his or her advanced skills for the entertainment of the crowd. A BMX warm-up, albeit a session open only for BMX riders, and therefore a ‘closed session’, involves numerous riders on the track, with those riders potentially entering the track from numerous different locations.
Discussion/Findings
The amendments to the second respondent’s Defence involved the withdrawal of the admission.
For the first time, the second respondent’s Defence introduced a specific allegation that a representative of the fourth respondent had made an announcement pertaining to a BMX demonstration (or BMX competitors’ warm-up session) before the incident and that access to the track was restricted at the time of the incident, by virtue of any such announcement.
The fourth respondent’s Defence – Revision 1 introduces a new alternative case that the collision occurred during a BMX demonstration (in addition to the previously pleaded alternative that the collision occurred during a BMX competition warm-up.)
As the applicant was a scooter rider, he was not entitled to be on the track during either a BMX demonstration or a BMX warm-up. Both pleaded alternatives involve an allegation that the collision occurred in a closed session.
However, during a BMX warm-up, competitors riding BMX bikes, presumably of all ages and skill levels, were entitled to be on the track.
Conversely, a BMX demonstration necessarily involves only one (or possibly a small number of other specific BMX riders) being allowed on the track at any one time. The practical considerations associated with enabling access to the track therefore differ, depending on the number of participants who are permitted to be on the track, at any particular time and the purpose for which they are being allowed access to the track.
In my view the applicant’s Reply does properly respond to the amendments made to the second respondent’s Defence, by which the second respondent pleads a new alternative case that the collision occurred during a BMX demonstration and importantly, makes new allegations as to the nature and effect of the announcement made by a representative of the fourth respondent before the incident.
While the amendments made to the fourth respondent’s Defence did not involve the withdrawal of an admission, nevertheless, the pleading now refers expressly to an alternative pleaded case that the collision occurred either during a BMX warm-up or a BMX demonstration.
The different factual circumstances of these two alternative cases are such that in my view, the Reply filed to the fourth respondent’s Defence – Revision 1, properly responds to the amendments. While the alternative case pleaded by the fourth respondent at trial also involved a ‘closed session’, the very fact it was thought necessary to include the alternative pleading of a ‘BMX demonstration’ acknowledges that there are factual differences in those two alternative scenarios.
While allowing the Reply, in each instance, to stand may result in the parties seeking to obtain further evidence with respect to the matters pleaded therein, in my view, nonetheless, the Reply, in each instance, properly complies with the Rules.
As such, the applications made by the second respondent and the fourth respondent to strike out the applicant’s Reply or alternatively, paragraph 1.3 of the applicant’s Reply, are refused.
Orders
1.As to FDN 90 and FDN 108:
(a)leave is granted to the applicant to re-open his case as against the second respondent and the fourth respondent, with such leave specifically confined to the calling of evidence from Chad Lockwood, Joshua Mezzatesta and Linda Weiss.
(b)the question of costs of and incidental to each application is reserved for determination by me, after the delivery of my judgment.
2.As to FDN 112 and FDN 114:
(a)the application in each instance is refused.
(b)the question of costs of and incidental to each application is reserved for determination by me, after the delivery of my judgment.
0
7
0