SWINDALE -v- BABIC [No 2] [2007] WASCA 262

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 262
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:132/2007	Heard:	21 NOVEMBER 2007
Coram:	PULLIN JA NEWNES AJA	Delivered:	2/12/07
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal allowed Application to adduce expert evidence remitted to trial judge for reconsideration
Category:	B
PDF Version

Parties:	KENNETH GRIFFITHS SWINDALE DINKO BABIC
Catchwords:	Practice and procedure Disclosure of medical evidence before trial Failure to disclose medical evidence until shortly before trial for tactical reasons Application at trial for leave to adduce the evidence Exercise of discretion under O 36A r 2(5) Failure to have regard to nature of evidence or prejudice to other side Miscarriage of discretion Practice and procedure Appeal against interlocutory decision at trial before final judgment only in exceptional cases Undesirability of adjourning trial to allow appeal on evidentiary ruling
Legislation:	Rules of the Supreme Court 1971 (WA), O 36A r 2(2), (5)
Case References:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Babic v Swindale [2007] WADC 166 Boyes v Colins (2000) 23 WAR 123 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SWINDALE -v- BABIC [No 2] [2007] WASCA 262 CORAM : PULLIN JA

NEWNES AJA

HEARD : 21 NOVEMBER 2007 DELIVERED : 3 DECEMBER 2007 FILE NO/S : CACV 132 of 2007 BETWEEN : KENNETH GRIFFITHS SWINDALE

Appellant

AND

DINKO BABIC

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : GROVES DCJ

Citation : BABIC -v- SWINDALE [2007] WADC 166

File No : CIV 1862 of 2006

Catchwords:

Practice and procedure - Disclosure of medical evidence before trial - Failure to disclose medical evidence until shortly before trial for tactical reasons - Application at trial for leave to adduce the evidence - Exercise of discretion under O 36A r 2(5) - Failure to have regard to nature of evidence or prejudice to other side - Miscarriage of discretion

(Page 2)

Practice and procedure - Appeal against interlocutory decision at trial before final judgment only in exceptional cases - Undesirability of adjourning trial to allow appeal on evidentiary ruling

Legislation:

Rules of the Supreme Court 1971 (WA), O 36A r 2(2), (5)

Result:

Appeal allowed

Application to adduce expert evidence remitted to trial judge for reconsideration

Category: B

Representation:

Counsel:

Appellant : Mr M H Zilko QC

Respondent : Mr D R Clyne

Solicitors:

Appellant : Williams Handcock

Respondent : Simon Walters

Case(s) referred to in judgment(s):

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Babic v Swindale [2007] WADC 166
Boyes v Colins (2000) 23 WAR 123
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478
The State of Queensland v JL…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Swindale v Babic [No 2]

Details

AGLC: Swindale v Babic [No 2] [2007] WASCA 262
Case: [2007] WASCA 262
Decision Date: 3 DECEMBER 2007

CaseChat Overview and Summary

In the matter of Swindale versus Babic, the second instance of the case before the court involved a dispute related to the disclosure of medical evidence. The case was heard in the Federal Court of Australia. The central issue was whether the trial judge had exercised their discretion under Order 36A Rule 2(5) correctly when denying the applicant's application to adduce expert medical evidence. The applicant had failed to disclose the medical evidence until just before the trial, citing tactical reasons for the delay.

The legal issues addressed by the court included whether the trial judge had erred in not considering the nature of the evidence and the potential prejudice to the opposing party, and whether the trial judge's failure to have regard to these factors constituted a miscarriage of discretion. Additionally, the court examined whether an interlocutory appeal against the trial judge's decision was permissible only in exceptional circumstances, and the undesirability of adjourning the trial to allow an appeal on an evidentiary ruling.

The court found that the trial judge had indeed failed to consider the nature of the evidence and the potential prejudice to the opposing party, which were crucial factors in exercising the discretion under the rule. This oversight was considered a miscarriage of discretion. Given these findings, the court allowed the appeal. The court further ruled that the application to adduce the expert evidence should be remitted to the trial judge for reconsideration, taking into account the proper factors required by the rule. This decision highlights the importance of careful consideration of all relevant factors when exercising discretion in such matters.

Orders

Orders of the court

Appeal allowed

Application to adduce expert evidence remitted to trial judge for

reconsideration

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.