Ljuben Nikoloski v Ridge Consolidated Pty Limited [1994] ACTSC 90 (9 September 1994)

SUPREME COURT OF THE ACT

LJUBEN NIKOLOSKI v RIDGE CONSOLIDATED PTY LIMITED
No. SC420 of 1993
Number of pages - 6
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Practice and Procedure - application for leave to re-open plaintiff's case -hearing concluded - decision reserved - judgment not yet delivered - principle to be applied - whether the interests of justice are better served by allowing or rejecting the application.

Regulations under the Scaffolding and Lifts Act, 1912-1948 (NSW)

Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235
R v Chin [1985] HCA 35; (1985) 157 CLR 671

Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471
Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256
Murray v Figge (1974) 4 ALR 612
Joyce v GIO (NSW) (1976) 2 Ritchie's Supreme Court Procedure, New South

Wales (13,028)

HEARING

CANBERRA, 29 July 1994
9:9:1994

Counsel for the applicant: Mr R Williams, QC with Mr B Hull

Instructing solicitors: Gary Robb and Associates

Counsel for the respondent: Mr G McNally

Instructing solicitors: Macphillamy Cummins and Gibson

ORDER

THE COURT ORDERS THAT:

1. Leave be granted to re-open the plaintiff's case.
2. It is a condition of the leave granted that the plaintiff
provide to the defendant a proof of evidence of any witness he
proposes to call within seven days of that proof being taken.
3. Leave is confined to the calling of witnesses whose proof of
evidence is delivered no later than 14 days before the resumed
hearing of this matter.

DECISION

HIGGINS J On 6 July 1994, I concluded the hearing of this matter and reserved my decision.

2. The claim by the plaintiff was for damages for personal injury. The plaintiff was injured, in the course of his employment by the defendant, on 10 November 1992 when he fell from a bridge during its construction.

3. It was the plaintiff's case that whilst he was working on the bridge with another workman, a piece of jointex was propelled from a pile on the surface of the bridge towards him as a result of a wind gust. The plaintiff was then working on the installation of safety rails on one side of the bridge. For that purpose a platform had been attached to the side of the bridge extending outwards from it. The outer edge of the platform therefore extended over the gully the bridge was intended to span.

4. The plaintiff claimed that, when struck by the jointex, he lost balance and toppled over the edge of the platform to the ground 2.5 metres below. He suffered fractures to the right distal radius and the left wrist.

5. There was virtually no dispute as to those facts. However, the plaintiff also asserted that the platform had neither kickboards nor a safety hand rail on its outer edge. If that evidence is to be accepted, a prima facie case of breach of statutory duty in relation to the construction of the scaffolding would have been established. It would also be open to the Court to conclude that, had those safety features been present, the plaintiff's potential fall would have been arrested. Whether a kickboard alone would make a difference might be doubtful, but certainly it would usually be expected that a safety hand rail would have prevented an accident of the kind which befell the plaintiff.

6. In cross-examination, it was suggested to the plaintiff that he had been working with Mr Ivan Lulic at the time of his accident. He and Mr Lulic had constructed the platform. It was suggested to the plaintiff that he and Mr Lulic had, in the course of that work, affixed a two inch pipe as a safety hand rail at a height of approximately one metre above the surface of the platform. The plaintiff rejected that suggestion.

7. The defendant called Mr Ivan Lulic as a witness. He asserted that he and the plaintiff had constructed the platform in question. He said they had together affixed a 50mm diameter pipe about one metre above the surface of the platform along its outer edge. He said that just before the plaintiff fell, he had caught a glimpse of something dark and then noticed something, presumably the plaintiff, going under the pipe.

8. Mr Lulic was asked in cross-examination to describe the safety rail more exactly. He did so. He referred to it as having been supported by uprights every 2.5 to 2.8 metres. It was not suggested to Mr Lulic that his evidence was in any way inaccurate or mistaken. No evidence was called in reply to suggest that the safety rail, if erected as Mr Lulic described, was in any way inadequate.

9. Counsel for the defendant submitted, as a result, that it was not open to the Court to find that there was no safety hand rail in place at the time of the plaintiff's fall. The absence of a safety hand rail was, effectively, the only relevant allegation of negligence or breach of statutory duty against the defendant.

10. The only argument raised by Mr Murray QC, counsel for the plaintiff, was that the scaffolding was not "suitable and safe" within the meaning of the Scaffolding and Lifts Regulations because the railing had not prevented the plaintiff from falling. His argument effectively conceded the accuracy of Mr Lulic's evidence.

11. On 29 July 1994, Mr Williams QC applied on behalf of the plaintiff for leave to re-open the plaintiff's case. That application was supported by an affidavit from Mr Robb, the plaintiff's solicitor. The material parts of that affidavit I set out below.

4. His Honour reserved his decision after the conclusion of
addresses. As I left the Court with counsel the plaintiff approached me
and said words to the effect: "What is all this talk about the
handrail. There was no handrail. Ask Angele". Up to that point I had
not heard any mention of a possible witness to the presence or absence
of a handrail. I had not made specific inquiry as to the existence or
identity of a witness to the accident, nor had I been directed to do so
by counsel.
5. The first I became aware that the defendant was challenging the
plaintiff's assertion that there was no handrail was during the cross
examination of the plaintiff.
6. I ascertained the full name and address of "Angele", being Mr Angele
Stojkoski of ... in the State of New South Wales and subsequently
contacted him and conferred with him. Thereafter, I arranged for him to
confer with counsel.
7. The witness can give material evidence regarding the absence of a
handrail at the time of the plaintiff's accident and the erection
thereof after the plaintiff fell from the platform.
8. In my opinion the evidence of Mr Stojkoski is material to the issue
of the presence or absence of a handrail and potentially might affect
the result of the litigation.
9. The plaintiff seeks leave to re-open to call Mr Stojkoski.
10. Further, the plaintiff seeks leave to have Mr Lulic recalled in
order that the evidence to be given by Mr Stojkoski can be put to him.
In this regard, the fact that a fence was erected (on Mr Stojkoski's
account) after the accident was not known to counsel or myself at the
time of the trial.

12. That application is opposed by the defendant.

13. The case of Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235 was cited as authority for the view that special grounds should be demonstrated before leave is granted. It was suggested that leave must be refused if the evidence was available prior to the hearing but not called.

14. In Radnedge (supra) the Court of Appeal was concerned with the approach of an appellate court to the admission of fresh evidence on the hearing of an appeal. Mahoney JA at 251 noted that evidence as to "pre-trial facts" would, pursuant to established authority, be admitted:

... only if the evidence could not have been obtained with
reasonable diligence for use at the trial; if there was the
appropriately high degree of probability that, produced at the
trial, there would have been a different verdict; and if the
evidence be appropriately credible...

15. Admission of "post-trial facts" did not require proof of those three matters. However, it was inappropriate to disturb a regularly obtained judgment without an insistent demand of justice. There is a need to ensure finality in litigation.

16. Even so, Kirby P dissented. His Honour was of the view that, as an appeal was by way of rehearing on the law at the time of the hearing, it should also be on facts as they existed at the date of the hearing.

17. It is necessary also to distinguish the disinclination of trial judges to permit the Crown to re-open its case or to call evidence in reply: R v Chin [1985] HCA 35; (1985) 157 CLR 671. The concern to ensure a fair trial to an accused person clearly warrants a strict approach to such an application.

18. The correct principle to be applied in situations where, before final judgment, a party wishes to re-open that party's case is simply whether the interests of justice are better served by allowing or rejecting the application.

19. That principle was affirmed in Urban Transport Authority v Nweiser (1992) 28 NSWLR 471. Clarke JA noted, at 476, that even if counsel had adopted a deliberate strategy in failing to call certain evidence and later desired to resile from that decision, it would not follow that the application to re-open the case should be refused. Of course, such a factor, if present, would disincline a court to permit a re-opening. Similarly, delay in making the application is also a relevant factor militating against that application. The sooner the application is made after the case is closed, the more inclined the court would be to permit a re-opening. In Nweiser (supra), re-opening was sought almost immediately after the case was closed to correct an inadvertent omission by counsel to tender certain evidence. The omission in question involved failure to call a witness due to a misapprehension as to the relevance and admissibility of the evidence of that witness.

20. The decision in Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256 involved an application to re-open a case to adduce further evidence. That application had been made after reasons for decision had been published but before the order was entered. The High Court held that the Court of Appeal (NSW) had erred in not permitting further evidence to be given after the case had been re-opened. The essential finding challenged by the appellant was that he had knowingly lied about his belief that he had been briefed to appear in a matter as counsel. The evidence he desired to call was not "fresh". He wished to call the solicitor who, he said, had briefed him, so as to adduce evidence of a conversation which might have afforded the appellant grounds for a finding that he had a mistaken belief that he had been briefed in the matter in question.

21. The majority, Brennan, Dawson, Toohey and Gaudron JJ, referring to the discretionary power to permit a re-opening of a case to call further evidence before entry of judgment, noted at 265:

The power is discretionary and, although it exists up until the
entry of judgment, it is one that is exercised having regard to
the public interest in maintaining the finality of litigation.

and at 266-7:

If there was a deliberate decision not to call it, ordinarily that
will tell decisively against the application. But assuming that that
hurdle is passed, different considerations may apply depending on
whether the case is simply one in which the hearing is complete, or one
in which reasons for judgment have been delivered. It is difficult to
see why, in the former situation, the primary consideration should not
be that of embarrassment or prejudice to the other side.

22. In Murray v Figge (1974) 4 ALR 612, Muirhead J after reserving his decision, refused to permit a case to be re-opened to enable counsel for the plaintiff to tender evidence he had omitted to tender during the hearing. However, the major reason for the failure of the application was that the evidence would not have affected the result. The other factor considered critical was prejudice to the other side if the evidence was to be admitted.

23. In this case, it is obvious that the evidence sought to be led is of central significance to the plaintiff's case. Prejudice to the defendant is, therefore, an important consideration.

24. Sheppard J in Joyce v GIO (NSW) (1976) 2 Ritchie's Supreme Court Procedure, New South Wales (13,028), 8551, was faced with an application to re-open a case in circumstances where the evidence in question had been available to counsel before the hearing. Counsel was, as he frankly conceded, well aware of the evidence prior to the hearing but had made an error of judgment in failing to call it. Nevertheless, whilst giving due weight to the discouragement of laxity in preparation and presentation of cases, his Honour decided that the case should be re-opened and the additional evidence admitted. The defendant conceded that it could not point to any particular prejudice to itself that would arise if the evidence was called.

25. In the present case, as in Joyce v GIO (supra), the defendant does not point to any unfair prejudice or embarrassment. It is true, of course, that Mr Lulic may be subjected to the inconvenience of a return to the Court for further cross-examination but that can be compensated for by an appropriate order for costs. The defendant was well aware that the presence of a safety hand rail was a critical issue. It presumably called all relevant evidence available to it in relation to the issue. In any event, the defendant now has the opportunity to marshal further evidence on the issue. It is forewarned of the further evidence the plaintiff proposes to adduce. It follows, I think, that there is no real prejudice to the defendant in granting the plaintiff's application apart from the inevitable cost and inconvenience occasioned by further delay.

26. On the other hand, if the application is refused there is a real risk that the plaintiff will not receive substantial damages to which he may well be entitled. There would be a real injustice to the plaintiff if he does not have the opportunity to establish, if he can, the absence of a safety hand rail.

27. It may be that the failure to present the further witness earlier was a result of a failure on the part of the plaintiff fully to instruct his solicitor. If so, bearing in mind his lack of education, command of English and unfamiliarity with the legal process, it would be unfair to use that as a ground to refuse the application.

28. There is, of course, a question as to whether the failure of counsel to cross-examine Mr Lulic concerning his assertion as to the erection of a safety hand rail can be regarded as a decision taken for tactical purposes.

29. I have some doubt as to whether the failure of counsel to cross-examine Mr Lulic was a deliberate decision. Counsel told me in address that he was, in effect, taken by surprise in the sense that he had no notice or knowledge of evidence to contradict the plaintiff's assertion that there was no safety hand rail. That conclusion, it must be stressed, was not the result of any misleading conduct by counsel for the defendant. The latter had put the suggestion squarely to the plaintiff that the safety hand rail had been in place before his fall. Plaintiff's counsel should have assumed that such an assertion might well be supported by admissible evidence and have been prepared to meet it. Nevertheless, that consideration does not require a refusal of the present application.

30. It seems to me that justice would best be served in the circumstances of this case if the plaintiff is permitted to re-open his case. Whether the issue of the presence or absence of a safety hand rail is determined in his favour or not, he will have had a fair and fully forewarned opportunity to test that issue. The defendant cannot be prejudiced. Indeed, as I have noted, it has a further opportunity to call additional evidence, if there is any, that directly or indirectly bears upon the issue. It has an opportunity to marshal material relevant to the credit of the witness the plaintiff intends to call.

31. I will make it a condition of the leave granted that the plaintiff provide to the defendant a proof of evidence of any witness he proposes to call within seven days of that proof being taken. Leave is confined to the calling of witnesses whose proof of evidence is delivered no later than 14 days before the resumed hearing of this matter.

32. I now will hear the parties as to costs and any further or other directions.