MacKINNON by his tutor Nantia MacKINNON v BLUESCOPE STEEL (AIS) PTY LIMITED & ORS [2009] NSWCA 38 (6 March 2009)

Last Updated: 9 March 2009

NEW SOUTH WALES COURT OF APPEAL

CITATION:
MacKINNON by his tutor Nantia MacKINNON v BLUESCOPE STEEL (AIS) PTY LIMITED & ORS [2009] NSWCA 38


FILE NUMBER(S):
40533/2007

HEARING DATE(S):
27 February 2009

JUDGMENT DATE:
6 March 2009

PARTIES:
MacKINNON by his tutor Nantia MacKINNON
BLUESCOPE STEEL (AIS) Pty LIMITED & ORS

JUDGMENT OF:
Allsop P

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
20429/1999

LOWER COURT JUDICIAL OFFICER:
Patten AJ

LOWER COURT DATE OF DECISION:
20 July 2007


COUNSEL:
B Toomey QC, E Romunink (Appellant, First Cross Respondent)
P Blacket SC (Third Cross Respondent)
I Morvath (Fourth Cross Respondent)
M Joseph SC, V Heath (Respondent)

SOLICITORS:
Keddies Lawyers (Appellant & First Cross Respondent)
Sparke Helmore Lawyers (First Respondent)
Draft One Communications (Third Cross Respondent)
McKenzie & Associates Pty Ltd (Fourth Cross Respondent)

CATCHWORDS:
Motion for dismissal for want of prosecution – motion dismissed.

LEGISLATION CITED:


CATEGORY:
Procedural and other rulings

CASES CITED:


TEXTS CITED:


DECISION:
The motion is dismissed and the first respondent ordered to pay the appellants costs of the motion.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40533/2007

ALLSOP P

6 March 2009

MacKINNON by his tutor Nantia MacKINNON v BLUESCOPE STEEL (AIS) PTY LIMITED and Ors

JUDGMENT

1 ALLSOP P: This appeal arises from proceedings which were heard for ninety four days between 23 May 2006 and 20 April 2007 by Patten AJ. His Honour gave judgment on 20 July 2007 in favour of the defendant/first respondent to the appeal. In the primary proceedings, the appellant was an employee of the first respondent who alleged that he had suffered psychiatric injury in the course of that employment as a result of its conduct in requiring/allowing him to attend a “leadership course” in September - October 1996.

2 The hearing of the appeal has been fixed for 30 March 2009. Although nine days have been allowed for the appeal (eight are now available), it is anticipated that it will conclude inside that estimate. In order to achieve that result, the matter has come before the Registrar and Judges of this Court on a number of occasions. For the purposes of the present application, the following directions hearings are material.

3 On 19 November 2008 the matter came before Bell JA and myself. No formal orders were made on that occasion but I made it clear to the parties that they should co-operate so as to ensure that the appeal was able to proceed expeditiously with a minimum waste of time. To that purpose I raised with senior counsel for the appellant the need for his side to provide an annotated judgment with each finding of fact which was contested marked and numbered. I suggested that a schedule should accompany the annotated judgment which referred to the evidence which affected the fact in dispute and which set out the finding or findings which the appellant asserted should have been made.

4 The matter came before Registrar Schell on 16 December 2008. The Registrar made a number of orders on that occasion including an order that the appellant file an annotated version of the original judgment and a schedule of evidence relied upon in support of alternative findings and contentions by 21 January 2009. The appellant was not able to meet that timetable and on 4 February 2009 I extended the time for compliance with that direction to 10 February 2009. I also ordered that the appellant serve a draft appeal index of extracted evidence and transcript by 24 February 2009.

5 The first respondent accepts that documents purporting to comply with the orders of the Court were filed on the dates specified. It does not accept that those documents comply with the orders of the Court. By motion filed 24 February 2009 the first respondent seeks an order that the appeal be dismissed for want of prosecution and an order for costs. The motion was heard on 27 February 2009.

Submissions and consideration

6 It is common ground that what the appellant filed and served was an annotated copy of the judgment and two folders which contain indexes and extracts from the black and blue books upon which the appellant proposed to rely in the appeal.

7 The first respondent submitted that there had not been compliance with the order of the Court in that the annotated judgment was nothing more than a repetition of the appellant’s submissions which had been inserted into the judgment in a cut and paste way. It submitted that no schedule had been filed as directed and that the documents did not comply with the order of the Court either in fact or in spirit.

8 As a result of these deficiencies, the first respondent submitted that it was significantly hampered in the preparation of the appeal. It submitted that these documents failed to provide any assistance in identifying with precision what was being said to be appellable error other than general assertions about there being “a failure” to find various facts and “a failure” to refer to particular evidence. The first respondent took the Court to various parts of the annotated judgment which it said illustrated this complaint.

9 The appellant responded that he was not asking this Court to reach its own conclusions in relation to the evidence in the trial but was seeking a retrial only. The appellant submitted that most of the argument from his side would relate to the process followed by the trial judge in his judgment. The focus would be upon the methodology used by the trial judge in making his factual findings. Accordingly, there would be little need to go outside the judgment and to the extent that it was necessary, the evidence which the appellant was relying upon was in the folders which had been filed and served.

10 I have now had the opportunity of considering the annotated judgment. While it does not strictly comply with the form of the order made, e.g. it is not accompanied by a schedule, it certainly complies with the spirit of the direction. I have found it to be most helpful in identifying the issues which will be raised in the appeal.

11 The substance of the complaint by the appellant emerges clearly from the annotated judgment. The particular factual findings which are challenged are identified. The basis of the challenge is then set out as is what the appellant submits to be the correct finding or approach to that finding.

12 By way of illustration, one of the complaints which emerges clearly from the annotated judgment is that the trial judge having comprehensively reviewed the evidence on a subject, did not attempt to resolve conflicting evidence or set out why some evidence was preferred, but simply moved to a conclusion.

13 In making the above observations, I wish to make it clear that I am not expressing an opinion as to whether those criticisms are made out. What I am saying is that the annotated judgment is most effective in identifying the issues in the appeal and the substance of the complaints concerning his Honour’s judgment.

14 I find it difficult to understand the first respondent’s submission that the annotated judgment and accompanying documents do not provide any assistance in identifying with precision the “errors” relied upon by the appellant. As indicated, I have found those documents to be of considerable assistance. It follows that I do not accept the first respondent’s criticism of the annotated judgment and its accompanying documents. I consider that they do comply with the directions made by the Court and have already significantly limited the issues likely to arise in the appeal.

15 The parties should proceed to finalise the preparation of the appeal. Any asserted difficulties should be raised before Hoeben J who will be one of the bench hearing the appeal.

16 The orders which I make are as follows:

(1) The first respondent’s motion is dismissed.

(2) The first respondent is to pay the appellant’s costs of the motion.

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LAST UPDATED:
6 March 2009