Tyndall v Kestrel Coal Pty Ltd (No 2) - [2021] QSC 114

SUPREME COURT OF QUEENSLAND

CITATION:

Tyndall v Kestrel Coal Pty Ltd (No 2) [2021] QSC 114

PARTIES:

JAMIE LEE TYNDALL

(plaintiff/respondent)

v
KESTREL COAL PTY LTD

(defendant/applicant)

FILE NO/S:

SC No 646 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

25 May 2021

DELIVERED AT:

Rockhampton

HEARING DATE:

20 May 2021

JUDGE:

Crow J

ORDER:

1. The defendant is granted leave to re-open their case to tender the affidavit of Renelyn Cotillon Green dated 14 May 2021.

CATCHWORDS:

EVIDENCE – ADDUCING EVIDENCE – COURSE OF EVIDENCE – RE-OPENING CASE – BY PARTY – where the parties provided written submissions at the conclusion of the trial and were invited to provide supplementary submissions at a later time – where the plaintiff, in their primary submissions, made a submission that an expert witness called by the defendant could not be properly cross-examined as material which was provided to and relied upon by the expert was not identified to the plaintiff – where the defendant did in fact provide and identify the material to the plaintiff – where, prior to provision of supplementary submissions to the court, the plaintiff was invited by the defendant to withdraw the relevant submission – where the plaintiff refused to withdraw the submission – where the defendant seeks leave to re-open their case to tender an affidavit showing that the material was in fact provided to the plaintiff – whether leave ought to be granted

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, cited
Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] 1 Qd R 12, applied
Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1; [2012] VSCA 232, cited
Urban Transport Authority NSW v Nwieser (1992) 28 NSWLR 471, cited
Wiggins Island Coal Expert Terminal Pty Ltd v Civil Mining and Construction Pty Ltd [2017] QCA 296, applied

COUNSEL:

RM Treston QC, with JM Sorbello, for the plaintiff
SJ Deaves for the defendant

SOLICITORS:

Morton & Morton Solicitors for the plaintiff
Hall & Wilcox for the defendant

The trial of this matter was heard on 14, 15, 16, 22 and 23 April 2021. On Friday 23 April 2021, the plaintiff and the defendant tendered detailed written submissions which were admitted as Exhibits 47 and 49, respectively. By paragraph 124 of the plaintiff’s primary submissions, it is stated:[1]
“124.Dr Mackay’s evidence was infected by the fact that had he been provided with 760 pages of unidentified material that were no [sic] in evidence before the Court but which the doctor said were in his mind and so they were important to him. The basis for his opinions therefore were matters which have not been able to be tested by cross-examination.”
[1] Exhibit 47.
At the conclusion of the trial, the parties were invited to provide further written submissions. The defendant provided further written submissions on 6 May 2021 (Exhibit 50) and the plaintiff provided further written submissions…

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.

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Details

Case: [2021] QSC 114
Decision Date: 25 May 2021

CaseChat Overview and Summary

In the case of Tyndall v Kestrel Coal Pty Ltd, the plaintiff sought to establish liability against the defendant for injuries sustained while operating a loader. The court was tasked with determining whether the defendant should be granted leave to re-open their case in light of the plaintiff's criticism of an expert witness's evidence. The plaintiff had argued in their primary submissions that the expert's opinion could not be properly cross-examined as the material relied upon by the expert had not been identified to the plaintiff. However, it was later established that the material had indeed been provided and identified to the plaintiff prior to the trial. The plaintiff refused to withdraw their criticism of the expert's evidence, prompting the defendant to seek leave to re-open their case to tender an affidavit proving that the material was provided to the plaintiff.

The court considered the principle that leave to re-open a case after the reservation of judgment should only be granted in exceptional circumstances. Despite acknowledging numerous issues with the expert's evidence, the court found that it was unfair to the defendant to consider the plaintiff's criticism as valid when the basis of that criticism was incorrect. The court recognised that the opposing party should not be left to discover the expert's reasoning and assumptions for the first time during cross-examination. Allowing the re-opening of the case to tender the affidavit would not prejudice the plaintiff, as the only effect would be to prevent the plaintiff from bringing the specific criticism in their submissions. The court concluded that the difficulties with the expert's evidence were not a sound reason to reject the application to re-open the evidence.

The court granted the defendant leave to re-open their case to tender the affidavit of Renelyn Cotillon Green dated 14 May 2021, demonstrating that the materials were identified prior to the expert being cross-examined. This decision ensures that the defendant's evidence is properly considered and that the trial is conducted fairly, without prejudice to either party. The court's decision also highlights the importance of ensuring that expert evidence is properly identified and presented to avoid potential unfairness during cross-examination.

Orders

Orders of the court

1. The defendant is granted leave to re-open their case to tender the affidavit of Renelyn Cotillon Green dated 14 May 2021.

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

The view which I took at trial and which I adhere to is that paragraph 7 is sufficiently reasoned by reference to paragraph 5 so as to make paragraph 7 admissible. It is plain, however, from paragraph 3 of the file note that Dr Mackay knew nothing of the vibration suffered by the plaintiff as a result of operating the loader. Although nowhere in exhibit 37, the file note of 10 February 2021, does Dr Mackay state the factual assumptions upon which he proffers his opinion, it is important to note that senior counsel for the plaintiff twice put the correct facts to Dr Mackay and sought his opinion, upon causation and Dr Mackay response was that he thought it was reasonable, before stating “and I think it’s my opinion the trauma to the left hand, more likely blunt force trauma in the left hand, caused an acute episode in 2016…”Conclusion As a matter of principle leave ought not to be given to re-open a party’s case following the reservation of judgment except in exceptional circumstances. I consider that there are exceptional circumstances in the present case. The receipt of Dr Mackay’s evidence was irregular in many respects. There are numerous problems with respect to the proper consideration of Dr Mackay’s evidence, however, I accept that it is unfair to the defendant that I ought to consider paragraph 124 of the plaintiff’s written submissions as a criticism of Dr Mackay’s evidence when the basis of the criticism, namely that the alleged non-identification of 760 pages which limited cross-examination, is not correct. In this application, the only materials sought to be admitted are the correspondence attached to Ms Green’s affidavit which shows the materials were identified prior to Dr Mackay being cross-examined. There is no prejudice to the plaintiff in allowing the re-opening of the case because, assuming the correspondence had been tendered at the trial, all that meant is that the submission, being the criticism at paragraph 124 of the plaintiff’s written submissions could not be brought. As Heydon J said in Dasreef Pty Ltd v Hawchar:[28] “[t]he opposing party is not to be left to find out about the expert's thinking for the first time in cross-examination”. Had the correspondence annexed to Ms Green’s affidavit being proved in evidence, it would not have overcome the difficulties for cross-examining counsel. In either scenario, that is where the material not identified or identified (as was the case), then the cross-examiner was still left to find out the expert’s reasoning and assumptions for the first time in cross-examination. This position was caused either by a failure to take objection or a forensic decision not to take objection (as Exhibits 35 to 38 support the plaintiff’s case).[28] Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at 623 [91]. Although there is manifest difficulty with Dr Mackay’s opinion and the way in which it was presented in evidence, that is a matter for final judgment and not a sound reason to reject the application to re-open the evidence.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Tyndall v Kestrel Coal Pty Ltd (No 2) [2021] QSC 114
PARTIES:	JAMIE LEE TYNDALL (plaintiff/respondent) v KESTREL COAL PTY LTD (defendant/applicant)
FILE NO/S:	SC No 646 of 2019
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	25 May 2021
DELIVERED AT:	Rockhampton
HEARING DATE:	20 May 2021
JUDGE:	Crow J
ORDER:	1. The defendant is granted leave to re-open their case to tender the affidavit of Renelyn Cotillon Green dated 14 May 2021.
CATCHWORDS:	EVIDENCE – ADDUCING EVIDENCE – COURSE OF EVIDENCE – RE-OPENING CASE – BY PARTY – where the parties provided written submissions at the conclusion of the trial and were invited to provide supplementary submissions at a later time – where the plaintiff, in their primary submissions, made a submission that an expert witness called by the defendant could not be properly cross-examined as material which was provided to and relied upon by the expert was not identified to the plaintiff – where the defendant did in fact provide and identify the material to the plaintiff – where, prior to provision of supplementary submissions to the court, the plaintiff was invited by the defendant to withdraw the relevant submission – where the plaintiff refused to withdraw the submission – where the defendant seeks leave to re-open their case to tender an affidavit showing that the material was in fact provided to the plaintiff – whether leave ought to be granted Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, cited Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] 1 Qd R 12, applied Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1; [2012] VSCA 232, cited Urban Transport Authority NSW v Nwieser (1992) 28 NSWLR 471, cited Wiggins Island Coal Expert Terminal Pty Ltd v Civil Mining and Construction Pty Ltd [2017] QCA 296, applied
COUNSEL:	RM Treston QC, with JM Sorbello, for the plaintiff SJ Deaves for the defendant
SOLICITORS:	Morton & Morton Solicitors for the plaintiff Hall & Wilcox for the defendant