Williams, A.C. v Commonwealth Bank of Australia
[1995] FCA 322
•5 MAY 1995
LIMITED DISTRIBUTION
CATCHWORDS
EVIDENCE - whether leave should be granted to call further expert evidence of valuation of property - late notice of intention to call such evidence - whether undue prejudice vitiated by necessity of long adjournment due to extension of hearing time - whether costs an adequate remedy - public interest in administration of justice - discretion.
Bomanite Pty Ltd v Slatex Corporation Australia Pty Ltd (1991) 104 ALR 165
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388
Alec Finlayson Pty Ltd v Armidale City Council (1994)
123 ALR 155
ANTHONY CHRISTOPHER WILLIAMS & EUNICE ELIZABETH KELLY & PRESEARTH PTY LTD & NOMMACK (NO 198) PTY LTD v
COMMONWEALTH BANK OF AUSTRALIA LTD
No NG 898 of 1992
Tamberlin J
Sydney
5 May 1995
LIMITED DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 898 of 1992
GENERAL DIVISION )
BETWEEN: ANTHONY CHRISTOPHER WILLIAMS
First Applicant
EUNICE ELIZABETH KELLY
Second Applicant
PRESEARTH PTY LTD
Third Applicant
NOMMACK (NO 198) PTY LTD
Fourth Applicant
AND: COMMONWEALTH BANK OF
AUSTRALIA
Respondent/Cross-Claimant
CORAM: TAMBERLIN J
PLACE: SYDNEY
DATED: 5 MAY 1955
MINUTE OF ORDERS
THE COURT ORDERS THAT:
A written valuation report be furnished to the respondent within ten (10) days from today.
The respondent shall furnish any valuation in reply within 21 days after being furnished with the applicants' report.
The applicants shall pay the respondent's costs caused by or arising from this application to adduce further evidence on an indemnity basis.
NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.
LIMITED DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 898 of 1992 GENERAL DIVISION )
BETWEEN: ANTHONY CHRISTOPHER WILLIAMS
First Applicant
EUNICE ELIZABETH KELLY
Second Applicant
PRESEARTH PTY LTD
Third Applicant
NOMMACK (NO 198) PTY LTD
Fourth Applicant
AND: COMMONWEALTH BANK OF
AUSTRALIA
Respondent/Cross-Claimant
CORAM: TAMBERLIN J
PLACE: SYDNEY
DATED: 5 May 1995
REASONS FOR JUDGMENT
In this matter the applicants seek to close their case subject to leave being granted to call further evidence in relation to the valuation of the site 4 to 18 Gertrude Street, Arncliffe, as a consolidated site. This further evidence is sought to be called from Mr Nelson, a qualified valuer, who has given evidence and been cross-examined during the last few days. The first intimation of any intention to proffer such further valuation evidence by the applicants was given when Mr Nelson sought to give evidence in chief two days ago, on the seventh hearing day, in relation to the consolidation approach to valuation of the sites. This was in response to a question as to the valuation of the land on a consolidated site basis.
Objection was taken and I disallowed the question at that time on the ground of prejudice to the respondent and the absence of any satisfactory explanation as to why the further expert evidence had not been adduced previously. Although expert valuations were prepared, filed and served prior to the hearing and were formulated on differing approaches and principles there was no valuation made by Mr Nelson on a consolidated site basis in relation to the land. This hearing was originally set down for seven hearing days. We are now in the ninth day and the applicant has not yet elected to close its case unconditionally.
Much of this time was occupied with cross-examination by the respondent of the applicant's witness. I make no criticism in relation to that except that it did obviously take much longer than was originally anticipated. Due to listing commitments it is now apparent that the matter will have to go over for several weeks or possibly months for further hearing. The applicants say that as a result of this fortuitous circumstance there will be no undue prejudice to the respondent in view of the fact that the respondent proposes to call valuers and it is suggested they should be able to deal with the evidence in sufficient time and the respondent will not be taken by surprise.
The respondent points out that there has been more than ample time for the applicants to get their evidence in order since this matter was commenced on 7 December 1992, about 2½ years ago. There have, since that time, been a number of directions hearings to ensure the orderly, expeditious and efficient conduct of this dispute. The respondent will most likely be faced with an extension of a hearing and will incur additional costs and inconvenience in order to further cross-examine on this evidence and to prepare to call evidence in reply if this application is granted. This would not have been necessary if the applicants had properly prepared. It is asserted by the respondent that an order as to costs would not be adequate to protect the bank since there is no evidence that the applicants would be able to meet these extra costs. This assertion cannot be given any substantial weight because there is simply no evidence which would justify this conclusion.
However, there is clearly serious inconvenience in extending an already protracted hearing. One factor which must weigh heavily on the scales is the public interest in the administration of justice not being delayed as a result of inadequate preparation of cases. A number of authorities were cited to me in which the court has pointed out that there is a wider interest in the administration of justice beyond the interests of the litigants in deciding procedural questions as to the efficient conduct of the court's proceedings. These include, among others, the decision of the full Federal Court in Bomanite Pty Ltd v Slatex Corporation Australia Pty Ltd (1991) 104 ALR 165. Also see the well-known decision in Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 and the decision of Burchett J in the case of Alec Finlayson Pty Ltd v Armidale City Council (1994) 123 ALR 155.
This consideration is important in the present circumstances in the exercise by the court of its discretion. The court's discretion is a wide one but it must be exercised judicially having regard to the facts of each particular case. In the circumstances I am loath to shut out the applicants because of what I perceive to have been inadequate preparation of their case and I therefore will grant the application for leave to adduce the further limited evidence on the basis that the applicants pay all extra costs incurred as a result of or arising from the bank dealing with this further evidence on an indemnity basis, whatever the outcome of this proceeding.
There has been no explanation whatsoever given as to why or how this oversight as to the evidence has occurred. I take the above approach particularly bearing in mind the circumstance in this case where an adjournment is inevitable for a period of time due to court listing requirements and this will lessen the inconvenience to the respondent and diminish the element of surprise. Nevertheless the inconvenience which the respondent will face is evident and so far as possible the awarding of indemnity costs will assist in mitigating that inconvenience.
One other factor which is most important is that in the interests of justice the applicants' case should be properly and fully ventilated having regard to the substantial amounts and issues involved in this case. Accordingly, I give the applicant leave to adduce the further limited valuation evidence from Mr Nelson as to the value of the site on a consolidated basis on the condition that a written report is furnished to the respondent within ten days from today. The second order I make is that the respondent shall furnish any valuation in reply within 21 days after being furnished with the report from Mr Nelson. Third, the applicants shall pay the respondent's costs caused by or arising from this application to adduce further evidence on an indemnity basis whatever the outcome of this proceeding.
I certify that this and
the preceding four (4)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.
Associate:
Date: 5 May 1995
Counsel for Applicants: Mr R F Greenwood QC
Mr D E Baran
Solicitors for Applicants: Hovan & Co
Counsel for Respondent: Mr R C Allaway QC
Mr P B Walsh
Solicitors for Respondent: Shaw McDonald
Date of Hearing: 5 May 1995
Date Judgment Delivered: 5 May 1995
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