Tyndall v Kestrel Coal Pty Ltd (No 2)

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.