Spotlight Pty Ltd v NCON Australia Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0098

SPOTLIGHT PTY LTD (ACN 005 180 861)
	Appellant
v
NCON AUSTRALIA LTD (ARBN 099 019 851)	Respondent

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JUDGES:	HARPER and TATE JJA and BEACH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 September 2012
DATE OF JUDGMENT:	27 September 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 232	1st Revision: 1 October 2012,  [15]
JUDGMENT APPEALED FROM:	[2011] VSC 271 (Robson J)

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PRACTICE AND PROCEDURE – Appeal from decision to allow a plaintiff to re-open its case on the issue of damages after judgment reserved and before final judgment delivered – Provision to the parties of a memorandum from the trial judge about deficiencies in the plaintiff’s case – Role of the memorandum on the resumption of the case – Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 and Brown v Dream Homes SA Pty Ltd (2008) 102 SASR 93 considered – Appeal allowed and matter remitted to trial judge for final judgment.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R M Garratt QC with Ms R B Sion	Cornwall Stodart
For the Respondent	Mr M D G Heaton QC with Dr M R Sharpe	Philip Jones & Co

HARPER JA:
TATE JA:
BEACH AJA:

1. This is an unusual appeal, although the proceeding itself is unremarkable enough.  The litigation was initiated on 10 August 2009, after a dispute had arisen over a contract which the plaintiff (respondent) claimed had been breached by the defendant (appellant), causing the respondent pecuniary damage.  There was a trial.  It concluded with both liability and damage very much in issue.  Relevantly for present purposes, so were both the fact and the extent of the respondent’s alleged loss.  Judgment on each of these issues was reserved.  It has yet to be delivered.  This appeal, therefore, raises other issues altogether.

1. It was for the respondent to prove both liability and quantum.  Stated in those bald terms, no proposition could be more elementary.  But the proper assessment of damages can be very difficult.  Certainly, the respondent found that to be so in this case.  Its attempts to prove its damages were challenged at many points during the course of an 11 day trial.  It is fair to say that it was a battle during which concessions were rare.  It is also fair to say that, by its lack of a coherent approach, and by presenting a less than watertight case, the respondent exposed itself to the appellant’s trenchant criticism.

1. The struggle continued as the parties prepared for this appeal.  No agreement could be reached on the summary of facts and issues,[1] despite the intervention of the Judicial Registrar.  As finally produced, the document contained little of the generally very useful chronologically-arranged information about the relevant steps taken between the issue of the writ and the hearing of the appeal;  and, although the areas of disagreement were partially identified, such attempts as were made to present a document which was coherent, easily read, and easily comprehended, were…