Turner v Norwalk Precast Burial Systems Pty Ltd (Ruling)
[2025] VCC 1610
•7 November 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-04517
| Garth Turner | Plaintiff |
| v | |
| Norwalk Precast Burial Systems Pty Ltd | Defendant |
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JUDGE: | His Honour Judge Over | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 November 2025 | |
DATE OF JUDGMENT: | 7 November 2025 | |
CASE MAY BE CITED AS: | Turner v Norwalk Precast Burial Systems Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1610 | |
RULING
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Subject:Remitted proceeding
Catchwords: The Court of Appeal remitted the proceeding to the Court for a further hearing – form of the further hearing – whether plaintiff can file amended statement of claim to add alternative basis for establishing causation – whether plaintiff can adduce expert evidence
Legislation Cited: Wrongs Act 1958, s51; Federal Court of Australia Act 1976, s28; Supreme Court (General Civil Procedure) Rules 2015, reg64.37; Evidence Act 2008, s136
Cases Cited:Turner v Norwalk Precast Burial Systems Pty Ltd [2025] VSCA 94; Barfly’s Nominees Pty Ltd v Kliger Partners (a firm) (Remitter issues ruling) [2020] VSC 277; Community and Public Sector Union v Telstra Corporation Ltd (No 2) [2001] FCA 479; RV Pty Ltd v Connector Park Pty Ltd (No 4) [2022] TASSC 66
Judgment: The plaintiff has leave to file a second amended statement of claim and expert report
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Mr J Ribbands | Country Life Law |
| For the defendant | Mr S Moloney | Barry Nilsson |
HIS HONOUR:
1The plaintiff successfully appealed to the Court of Appeal a previous decision of this Court. The Court of Appeal remitted the matter to this Court for “further hearing and determination in accordance with [its] reasons”[1] in Turner v Norwalk Precast Burial Systems Pty Ltd.[2]
[1]Order of the Court of Appeal dated 6 May 2025, [4].
[2][2025] VSCA 94 (“Turner”).
2In the remitted proceeding, the plaintiff applies for leave to do the following:
(a) file a second amended statement of claim that pleads that if he cannot establish factual causation under s51(1) of the Wrongs Act 1958 he relies on s51(2) in seeking to prove causation (the s51(2) issue);
(b) file a report from Professor Andrew Stephen Ball, microbiologist.
3The defendant consents to the filing of the second amended statement of claim and opposes the filing of Professor Ball’s report. The last matter raises an interesting issue about the scope of the further hearing.
The trial at first instance
4The Court of Appeal succinctly summarised the trial at first instance as follows:
“The applicant arranged for the installation of a septic tank system on his property in Seaton. He alleges that this system was missing a part — variously described as an ‘aerator arm’, or ‘aerator shaft’ — which caused him to suffer recurrent Helicobacter Pylori (‘HP’) infections, sickness, loss and damage.
The applicant brought a case in negligence and contract against the manufacturer of the septic tank system in the County Court. He alleged that the system was improperly installed and maintained. By the time the matter came to trial, the applicant was self-represented. He gave evidence himself. He also adduced evidence from his friend, Ms Berry, who assisted him at the trial. However, at the conclusion of this evidence, the respondent made a no case submission on the basis that the applicant could not prove his case in respect of causation. More particularly, that he could not prove that the fitting of the aerator arm would have averted his injury.
The judge upheld the no case submission and gave judgment for the respondent.”[3]
[3]Ibid, [1]-[3].
The appeal
5The plaintiff sought leave to appeal, ultimately relying on the following grounds:
“the judge erred in that he failed to provide the applicant, as an unrepresented litigant, the degree of assistance required to ensure procedural fairness and the undertaking of a fair trial;
the judge erred in ruling in favour of the respondent’s no case submission:
(a)without having considered whether it was an appropriate case to invoke s 51(2) Wrongs Act 1958 (‘Wrongs Act’), as is required by the Act;
(b)without providing the applicant, as an unrepresented litigant, the opportunity of proving causation by an alternative means under s 51(2) if factual causation could not be established.”[4]
[4]Ibid, [4] (citations omitted).
6The Court of Appeal granted leave to appeal and upheld the appeal on two grounds.
7First, the Court of Appeal held that the judge had failed to appropriately correct the plaintiff’s miscomprehension that the defendant would call two witnesses who he could then cross-examine, and thereby failed to ensure that the plaintiff, who was self-represented at the trial, was assisted so that he had a fair trial and practical injustice was avoided. Without seeking to be prescriptive, the Court considered that the judge should have taken the following steps:
“… the applicant should have been expressly told, prior to closing his case, that the respondent might not call witnesses at all, in which case the evidence would be finished at the end of his case. Given that the applicant clearly wished to adduce ‘all the relevant information’ from the respondent’s witnesses, we also consider that the judge should have told the applicant that he was able to, and might choose to, call those witnesses himself. If such a path was taken, he could then have been advised about his ability to subpoena the Taylors (and particularly Andrew Taylor) and if necessary, in the course of their evidence to make an application to cross-examine them under s 38 (or perhaps to ask leading questions of them under s 37) of the Evidence Act 2008.”[5]
[5]Ibid, [76].
8Secondly, the Court of Appeal held that the judge should have explained to the plaintiff the terms of s51 of the Wrongs Act 1958 and particularly s51(2), which provides an alternative way of establishing factual causation if s51(1)(a) cannot be satisfied.[6]
[6]Ibid, [129].
9The Court of Appeal allowed the appeal, set aside the order of the judge and remitted the matter to this Court for “further hearing and determination in accordance with the reasons”[7] of the Court of Appeal.
[7]Order of the Court of Appeal dated 6 May 2025, [4].
Application to file a second amended statement of claim
10The previously filed amended statement of claim did not plead that the plaintiff sought to rely on s51(2). The Court of Appeal considered and rejected a submission from the defendant to the effect that the plaintiff, who was self-represented at trial, should have pleaded reliance on s51(2) of the Wrongs Act 1958.[8]
[8]Turner, [131]-[132]
11Since the matter has been remitted to this Court, the plaintiff has been represented by barristers and a solicitor. In those circumstances, I requested the plaintiff to consider whether he wished to rely on s51(2), and if so, to prepare a second amended statement of claim making that clear.
12The proposed second amended statement of claim pleads that if the plaintiff cannot establish factual causation under s51(1) of the Wrongs Act 1958, he relies on s51(2) to prove causation.
13The defendant consents to the filing of the second amended statement of claim.
14The plaintiff has leave to file and serve the second amended statement of claim. The second statement of claim goes directly to an issue identified by the Court of Appeal as needing rectification, being the s51(2) issue. Now the plaintiff is legally represented, it is important that he identify reliance on that section and seeks to articulate how and why he says that section applies so the defendant and the Court are not surprised.
Should the plaintiff be permitted to adduce further evidence?
15The plaintiff seeks to adduce further evidence in the form of an expert report of Professor Andrew Stephen Ball, microbiologist. He provided a draft report to the defendant and the Court, with a final report expected soon. In summary, he considers the operation of the Taylex Clearwater 90 aerated wastewater system installed at the plaintiff’s premises, how a system without a fitted pump and aerator would work, whether it would or could have caused H. pylori bacteria to be dispersed to the plaintiff’s backyard causing risk of infection to the plaintiff, and whether the plaintiff’s alleged H. pylori infections were caused by the system.
16The defendant opposes the plaintiff adducing Professor Ball’s report, ostensibly arguing that the further hearing should be limited to addressing and taking steps to correct the errors identified by the Court of Appeal.
17The legal principles relevant to whether new evidence can be adduced on a remitter were considered by Macaulay J in Barfly’s Nominees Pty Ltd v Kliger Partners (a firm) (Remitter issues ruling)[9] in the context of the remitter of a professional negligence claim from the Court of Appeal to the Trial Division of the Supreme Court. His Honour identified from the authorities that a remitter judge has a discretion to permit further evidence and the discretion has to be exercised judicially having regarding to all relevant matters, which could include the following:
“• the overarching purpose set out in s 7 of the CPA;
• the directions given by the Court of Appeal pursuant to its powers under r 64.37 (7) of the [Supreme Court (General Civil Procedure) Rules 2015];
•the nature of the matter which has been remitted and the manner in which the task of determining the remitted matter is to be undertaken;
• the public interest in the finality of litigation;
• fairness to all parties, including a fair opportunity to be heard and to present evidence to the Court on the issues which need to be decided, tempered by the values of timeliness, efficiency and cost effectiveness in resolving the issues in dispute;
• the extent to which the new evidence may expand the dimension of the dispute; and
• the opportunities which the applicant party has had to adduce the evidence in the past and its reasons for not having done so.”[10]
[9][2020] VSC 277.
[10]Ibid, [33].
18The defendant referred me to two cases.
19In Community and Public Sector Union v Telstra Corporation Ltd (No 2),[11] Finkelstein J considered what was meant by a “new trial” in s28(1) of the Federal Court of Australia Act 1976 and held that it was a continuation of the first trial, rather than a completely new trial. The case has limited application to this case given, first, it concerns interpretation of legislation peculiar to the Federal Court and, secondly, the Full Court of the Federal Court had identified that only one issue needed to be dealt with in remitting the matter.
[11][2001] FCA 479, [17].
20In RV Pty Ltd v Connector Park Pty Ltd (No 4),[12] Blow CJ considered whether new evidence could be led on the issue of assessment of damages on remitter of a matter from the Full Court of the Tasmanian Supreme Court. His Honour’s decision to allow new evidence turned on the facts of the case.
[12][2022] TASSC 66.
21I consider the plaintiff should be allowed to adduce evidence by filing and serving Professor Ball’s report for the following reasons:
(a) the Court of Appeal remitted the matter to this Court for “further hearing and determination in accordance with [its] reasons”;[13]
[13]Order of the Court of Appeal dated 6 May 2025, [4].
(b) the Court of Appeal in its reasons did not give any express direction to this Court about the future conduct of the proceeding pursuant to its power under reg64.37 of the Supreme Court (General Civil Procedure) Rules 2015;
(c) the Court, without seeking to be prescriptive, considered what steps the trial judge should have taken to avoid the identified errors, and it can be inferred from the steps identified that at a bare minimum, in the remitter, the plaintiff should be able to seek to establish factual causation by s51(2) and make a decision about whether he wishes to call John Taylor and Andrew Taylor as witnesses;
(d) a necessary precursor to establishing factual causation under s51(2) is that a plaintiff cannot establish that negligence was a necessary condition of the occurrence of the harm in accordance with s51(1)(a);
(e) given that the plaintiff in the remitter will now seek to rely on s51(2), evidence about whether he can or cannot establish that negligence was a necessary condition of the occurrence of the harm is relevant to the s51(2) issue;
(f) furthermore, if he cannot establish that negligence was a necessary condition of the occurrence of the harm, it is likely to be essential to considering the claim relying on s51(2) to know why not. For example, if it was because of an evidentiary gap, the nature and reason for the gap is likely to be significant given the rationale for s51(2) is to enable bridging of evidentiary gaps in some limited circumstances;[14]
(g) the defendant accepted that generally the plaintiff should be able to lead evidence to prove his s51(2) claim. As stated, the evidence of Professor Ball will be relevant to this part of the claim. It could also be relevant to the part of his claim relying on s51(1)(a), but the defendant submitted that it was actually adverse to that claim (a matter I do not need to decide at this stage);
(h) if Professor Ball’s report was admitted, the defendant did not submit that I should seek to limit its use, for example, by making an order under s136 of the Evidence Act 2008;
(i) the plaintiff was self-represented at the trial, though he had solicitors acting for him at times in the lead up to the trial. He is now legally represented. The fact that he was self-represented does not mean he gets a second chance to present his case, but in the peculiar circumstances of a remitter, holding him to what happened at the initial trial has less force than it may have if he had been legally represented at the trial;
(j) further to the last point, the plaintiff needs a fair opportunity to be heard and to present evidence to the Court on the issues that need to be decided. Given that the plaintiff was not aware at the initial trial of the s51(2) issue, it is difficult to see how or why he should be prevented from adducing evidence on that issue, even if it may also go to other issues such as the s51(1)(a) issue;
(k) the defendant must also have a fair opportunity to be heard and to present evidence to the Court on the issues that need to be decided. The defendant stated that if the plaintiff can rely on Professor Ball’s report, then it too would seek to obtain further expert evidence, which it considered could be done by 18 December 2025;
(l) the trial is currently scheduled for 16 February 2026. Allowing the plaintiff to adduce further evidence (and the corresponding opportunity for the defendant to obtain expert reports) means that the trial date may be put in jeopardy. But a slight delay, if needed, to the trial is justified; and
(m) adducing new evidence could increase the duration of the remitted trial but may also increase the chance of the parties resolving the matter by negotiations. This is especially so in the context where both parties indicated a willingness for a further judicial mediation after expert evidence had been exchanged.
[14]Review of the Law of Negligence (Final Report, September 2020), 100 [7.30].
22I have made an order that reflects these reasons. I ask that the parties confer about what further orders can or need to be made in the lead up to the trial, including for a judicial mediation, and consider an appropriate date for a directions hearing about two weeks before trial.
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