Ryan v Bunnings Group Limited; Ryan v Eastlake Football Club Limited; Ryan v Bhagria; Ryan v O'Halloran; Ryan v Cain (No 3)

[2022] ACTCA 24

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title: 

Ryan v Bunnings Group Limited; Ryan v Eastlake Football Club Limited; Ryan v Bhagria; Ryan v O'Halloran; Ryan v Cain (No 3)

Citation: 

[2022] ACTCA 24

Hearing Date: 

12 May 2022

Decision Date: 

12 May 2022

Before: 

Kennett J

Decision: 

Application is dismissed

Catchwords: 

APPEAL – APPLICATION IN PROCEEDING – Application for leave to issue subpoenas – where an application to adduce further evidence has been made but not heard – where grant of

leave may lead to hearing of the appeal unable to be completed

in time allocated by the Court – where non-compliance with Court

Procedures Rules 2006 (ACT) rr 5606, 6603

Legislation Cited: 

Court Procedures Rules 2006 (ACT) rr 5606, 6603
Listening Devices Act 1992 (ACT) s 10
Supreme Court Act 1933 (ACT) s 37J

Cases Cited: 

Ryan v Bunnings Group Limited; Ryan v Bunnings Group Limited;

Ryan v Eastlake Football Club Limited; Ryan v O’Halloran & Ors;

Ryan v Bhagria & Anor [2020] ACTSC 353

Parties: 

Mark Ryan (Applicant/Appellant)
Bunnings Group Limited (Respondent in ACTCA 6 of 2021)
Eastlake Football Club Limited (Respondent in ACTCA 7 of 2021)

Tejinder Bhagria (First Respondent in ACTCA 8 of 2021)
AAI Limited t/as GIO (Second Respondent in ACTCA 8 of 2021)

Jade O’Halloran (First Respondent in ACTCA 9 of 2021)

Stephen Cain (First Respondent in ACTCA 10 of 2021)
Insurance Australia Limited t/as NRMA Insurance (Second
Respondent in ACTCA 9 & 10 of 2021)

Representation: 

Counsel

Self-represented (Applicant/Appellant)
I Meagher (Respondent in ACTCA 6 of 2021)

E Bozic (Respondent in ACTCA 7 of 2021)
C Deans (Respondents in ACTCA 8 of 2021)
W Fitzsimmons SC (Respondents in ACTCA 9 & 10 of 2021)

Solicitors

Self-represented (Applicant/Appellant)

Bradley Allen Love (Respondent in ACTCA 6 of 2021)

Sparke Helmore (Respondent in ACTCA 7 of 2021) Moray & Agnew (Respondents in ACTCA 8 of 2021)

HWL Ebsworth (Respondents in ACTCA 9 & 10 of 2021)

File Numbers: 

ACTCA 6 of 2021

ACTCA 7 of 2021 ACTCA 8 of 2021 ACTCA 9 of 2021

ACTCA 10 of 2021

Decision under appeal: 

Court/Tribunal:	Supreme Court of the ACT
Before:	Loukas-Karlsson J
Date of Decision:	23 December 2020
Case Title:	Ryan v Bunnings Group Limited; Ryan v Eastlake Football Club Limited; Ryan v

O’Halloran & Ors; Ryan v Bhagria & Anor

Citation:  [2020] ACTSC 353

KENNETT J:

Introduction

1.       In this matter I am sitting as a single Judge exercising the jurisdiction of the Court of

Appeal pursuant to s 37J of the Supreme Court Act 1933 (ACT).

2.       Mr Ryan appeals from a judgment of Loukas-Karlsson J delivered on 23 December 2020

(Ryan v Bunnings Group Limited; Ryan v Bunnings Group Limited; Ryan v Eastlake

Football Club Limited; Ryan v O’Halloran & Ors; Ryan v Bhagria & Anor [2020] ACTSC

353). Her Honour gave judgment in four separate proceedings, heard together, which in

turn arose from five separate incidents in which Mr Ryan alleged that he was injured and

therefore entitled to damages. Mr Ryan was unsuccessful in all four proceedings. He

filed a notice of appeal in each matter in January 2021.

3.       The five appeals are set down for hearing over two days commencing on Monday, 16

May 2022.

The Application

4.       Before me today is an application, filed by Mr Ryan on 10 May 2022, seeking leave to

issue subpoenas to give evidence to two persons, Mr Jesse Iliopoulos and Ms Jade

O’Halloran. The application is supported by an affidavit of Mr Ryan sworn on 10 May

2022.

5.       According to its terms, the application seeks to have the witnesses attend to give

evidence on 18 May 2022 (which would be after the days allocated by the Court for the

hearing of the appeals). However, Mr Ryan clarified that he had inserted this date purely

in order to comply with the requirement for five clear days’ notice, and that his preference

was to have the witnesses attend on the first day of the appeals, namely 16 May 2022.

6.       The application, the proposed subpoenas and the affidavit are all handwritten and a little

difficult to read. However, the purpose of the proposed subpoenas appears to be as

follows.

7.       Mr Ryan has filed an Application in Proceeding seeking leave to rely on additional

evidence in the appeals. That application, which I am told involves some 13 items of

evidence, is intended to be made at the commencement of the hearing on 16 May 2022.

It is not presently before me.

8.       One item of proposed additional evidence is a recording of a conversation between Mr

Ryan and Ms O’Halloran, who was the first defendant in one of the proceedings currently

subject to appeal. The conversation took place soon after the motor vehicle accident on

20 December 2013 involving vehicles driven by Mr Ryan and Ms O’Halloran which gave

rise to the claims advanced in the proceeding below. The recording was made apparently

by Mr Ryan using his mobile telephone. He wishes to call Ms O’Halloran to give evidence

in order to ask her to confirm the accuracy of the recording.

9.       Mr Iliopoulos was the solicitor for Mr Ryan in the relevant proceedings for a period, before

changing his employment. Mr Ryan apparently wishes to call him to give evidence of the

reasons why the recording was not tendered in the proceedings below. I understand that

this may be relevant to the application to adduce further evidence itself. Mr Ryan

appeared to suggest in oral submissions that evidence from Mr Iliopoulos could be

relevant to broader issues concerning Mr Ryan’s credibility.

10.     In the proceeding below, Ms O’Halloran admitted that she had breached her duty of care

to Mr Ryan, but denied that he had suffered injury, loss or damage as a result of that

breach. Thus, there was no issue in the proceeding below as to where fault lay in relation

to the accident. Similarly, there is no such issue in the appeal; Ms O’Halloran has made

no attempt to withdraw the admission that she made before Loukas-Karlsson J. The

issues are thus limited to what, if any, injury, loss or damage was suffered by Mr Ryan.

1. Her Honour in substance accepted the submissions of Ms O’Halloran and of the second

   defendant, and awarded modest damages totalling $11,190. Mr Ryan’s claim was much

   larger and was based on submissions that he had suffered an aggravation of a number

   of pre-existing injuries as well as a fresh injury to his right elbow.

12.     There was some evidence before her Honour of the conversation between Mr Ryan and

Ms O’Halloran. Mr Ryan’s version of the conversation is set out in her Honour’s reasons

at [231]–[232]. Ms O’Halloran’s version is summarised in those reasons at [240] and

[242]. The substance of Mr Ryan’s evidence was that Ms O’Halloran had immediately

admitted liability. The substance of Ms O’Halloran’s evidence was that around 20 to 30

minutes after the collision Mr Ryan informed her that he had a sore neck. These are not

inconsistent. There does not appear to have been a significant evidentiary contest as to

what was said during the conversation.

Consideration

13.     On the material before me, it seems very unlikely that an application to tender the

recording of the conversation will succeed. It will face at least the following difficulties.

1. First, notice of the application has been seriously inadequate. Rule 5606 of the Court

   Procedures Rules 2006 (ACT) (Court Procedures Rules) requires affidavits to be filed no

   later than 28 days before the hearing of the appeal setting out the grounds of an

   application to adduce further evidence, any evidence necessary to establish those

   grounds and the actual evidence that the applicant wants the Court to receive. Other

   parties are then required to file any evidence in response. While the Court has power to

   dispense with this rule, it would be unlikely to do so in circumstances where hearing the

   application was likely to lead to significant further costs and delay.

2. Secondly, there is presently no evidence that Ms O’Halloran consented to the recording

   of the conversation being made. In the absence of such evidence, s 10 of the Listening

   Devices Act 1992 (ACT) at least prima facie creates a barrier to the evidence being

   admitted.

3. Thirdly, and probably most importantly, the recording of the conversation seems highly

   unlikely to be of significant probative value in the appeal.

17.     As I have noted, the issues in the trial and therefore the issues in the appeal concern the

extent of the injuries suffered by Mr Ryan. Loukas-Karlsson J resolved that question

partly by reference to the seriousness of the collision and partly by reference to expert

medical evidence. As to the first of those aspects, her Honour accepted Ms O’Halloran’s

evidence that the impact between the vehicles was minor. That was the subject of

evidence from both her and Mr Ryan, and both were cross-examined. Further evidence

about things that they may have said to each other following the collision is unlikely to

shed significant further light on the issue. As to the second aspect, the conversation

appears completely irrelevant to any assessment of the strength of the expert evidence.

18.     Mr Ryan suggested that the recording of the conversation was relevant to his credibility

more generally. Her Honour made adverse findings about Mr Ryan’s credibility, based

on evidence in all of the matters before her, and applicable to all of those matters. The

reasoning on Mr Ryan’s credibility was detailed and drew on many factors. It is difficult

to see how further evidence about one conversation (as to which, as I have observed,

there was not a significant divergence between his evidence and that of the other party)

is unlikely to assist greatly in any reassessment of those credibility findings.

19.     Of course, the application to rely on additional evidence is not currently before me. It is

proposed to be advanced on Monday before the Court as constituted for the hearing of

the appeal. On one view, I should not pre-empt the Court’s decision; and I should allow

the proposed subpoenas to issue so that, if the Court is minded to receive the evidence,

that can be done straight away.

20.     However, I have decided not to take that course for the following reasons.

21.    First, the application to adduce further evidence has such slender prospects of

succeeding in relation to the recording of the conversation that I do not think it would be

appropriate to require the attendance of witnesses against the possibility that it might

succeed.

1. Secondly, even allowing for the fact that Mr Ryan is self-represented, both the application

   to rely on further evidence and the application for subpoenas should have been filed long

   before now. It requires a significant relaxation of the rules for the application to rely on

   further evidence even to be heard. Relevant to that question will be considerations of the

   efficient use of public resources, the limited time available for the appeal and the prospect

   of significant further costs being thrown away if, as a result of further evidence being

   introduced, the hearing of the appeals cannot be completed within the time that has been

   allocated. The prospect that the hearing would not be able to be completed is real. Aside

   from the time needed to hear the evidence of the proposed witnesses, their evidence

   (and receipt of the recording itself) could, for example, prompt applications for further

   cross-examination of Mr Ryan. In fairness to the other parties, it would be difficult for the

   Court to refuse such applications.

2. Thirdly, focusing on the application to issue subpoenas itself, the date proposed in the

   application (18 May 2022) falls after the hearing of the appeals and would lead to

   significant inconvenience for the Court and the parties. But if the application is treated

   (as Mr Ryan evidently wished it to be treated) as seeking the attendance of witnesses

   on 16 May 2022, it becomes in substance an application for short service of a subpoena

   which is governed by r 6603 of the Court Procedures Rules. That rule requires the affidavit in support of an application to state, among other things, whether the addressee

   for the subpoena has been told about the hearing and, if so, whether he or she is able to

   attend the hearing. There is no evidence on these points. Short service of a subpoena,

   at least in circumstances where there is no real explanation as to why the application is

   made late, is an indulgence to the applicant, and before granting that indulgence it is

   appropriate for the Court to have some regard to the interests of the person proposed to

   be subpoenaed. At present, while I was informed from the bar table that Ms O’Halloran

   and Mr Iliopoulos are both in the ACT, there is no evidence as to whether they have been

   informed of the proposal to call them as witnesses or as to their ability to attend court on

   16 May 2022.

24.     These discretionary considerations have persuaded me that leave to issue the proposed

subpoenas should be refused, even if the effect of doing so is to render unviable one

aspect of the application to adduce further evidence which Mr Ryan proposes to advance

before the Court at the hearing of the appeals.

Orders

25.     For these reasons, the application for leave to issue subpoenas will be refused. I will

hear the parties on the costs of the application.

I certify that the preceding twenty-five [25] numbered

paragraphs are a true copy of the Reasons for

Judgment his Honour Justice Kennett

Associate:

Date: