Shaw v Niru Construction Pty Ltd & Anor [2021] NSWDC 589

District Court New South Wales

Medium Neutral Citation: Shaw v Niru Construction Pty Ltd & Anor [2021] NSWDC 589 Hearing dates: 28 October 2021 Date of orders: 29 October 2021 Decision date: 29 October 2021 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 54 Catchwords: PRACTICE AND PROCEDURE – civil – claim for personal injury damages – application for adjournment by defendants on final day of hearing – where application made after close of defendants' case – application made for purpose of calling witness purportedly unable to appear because of medical condition Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 66 Cases Cited: Bloch v Bloch (1981) 180 CLR 390 Bobolas v Waverley Council (2016) 92 NSWLR 406 Jackamarra v Krakouer (1998) 195 CLR 516 NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 Texts Cited: P Taylor SC, Ritchie's Uniform Civil Procedure (NSW) (2005, LexisNexis Australia) Category: Procedural rulings Parties: Robin Shaw (plaintiff) Niru Construction Pty Ltd (first defendant) Arasaratnam Mahendran (second defendant) Representation: Counsel: Ms E Welsh for the plaintiff Mr A Renshaw for the first and second defendants

Solicitors: Brydens Lawyers for the plaintiff McMahons Lawyers first and second defendants File Number(s): 2020/00032476

Judgment

Background 1. This is day 4 of a hearing which commenced on 23 August 2021, ran for two days and then, through no fault of the parties, had to be adjourned, part-heard to yesterday. At the time of that adjournment on 24 August 2021, the evidence of the plaintiff had only just concluded and the parties had tendered most (but not all) of the documents they relied upon. 2. On 6 September 2021, the matter was set down for a further two days (28-29 October 2021) with the Court indicating (through an email sent by my Associate to Counsel) that I would thereafter be unable to take any civil cases for the remainder of this calendar year, as I would be sitting in crime for the balance of the court term. That meant that unless the case could be concluded by the end of 29 October 2021 (which the Court indicated was its expectation when the matter was set down to resume on 28 October) it would have to go over to 2022 for its completion. 3. The proceeding relates to a claim for damages for personal injury arising from an incident in January 2017, when according to the plaintiff, he stepped back onto a metal pole and injured one of his knees in a property in Westmead. Construction works had been taking place which affected that property. 4. Yesterday, when the matter resumed, Counsel for the plaintiff, Ms Welsh, called two further lay witnesses before closing her case. After the tender of some additional documents, Counsel for the defendant, Mr Renshaw, called two witnesses for the defendants, Mr Payne and the second defendant. My estimate was that the two defendants' witnesses had come and gone in the space of just over an hour. After the second defendant's evidence concluded Mr Renshaw declared the defendants' cases closed. The hearing was then adjourned for lunch, in anticipation that Counsel's closing addresses would follow after lunch. 5. But immediately after the luncheon adjournment, Mr Renshaw informed the Court that he wanted to call another witness, but that that witness was unavailable because of ill-health that had only emerged earlier yesterday morning. That other witness is Mr Buddy John Chaloub, who trades under the business name 'The Fussy Plumber'. According to the second defendant, Mr Chaloub was a subcontractor for him. 6. Mr Renshaw indicated that he only learnt of Mr Chaloub's ill-health this yesterday morning, before the case resumed after the two month break. Counsel explained that he did not apply for an adjournment yesterday morning since he did not anticipate that he would call Mr Chaloub. Counsel argued that if the matter proceeded without Mr Chaloub, his clients were concerned that a Jones v Dunkel inference could be drawn from his failure to give evidence. Counsel for the defendant accepted that if his application was acceded to, his clients should pay the costs thrown away by it. 7. Counsel for the plaintiff, Ms Welsh, opposed the application. She said she was unaware of what witnesses the defendant's Counsel proposed to call. She indicated that if Mr Chaloub did not give evidence, then she would be submitting that a Jones v Dunkel inference should be drawn against the defendants because of their failure to call him. 8. In support of her opposition, Ms Welsh referred to Exhibit W in the main proceeding. This was the bundle of documents produced by the second defendant in answer to a subpoena to produce (issued 10 November 2020). Specifically, she noted that the subpoena called for the production, amongst other documents, of "(A)ll job records, inspection reports, job log activity, maintenance records, job requisition records relating to stormwater works in the vicinity" of the property in Moree Avenue, Westmead, where the alleged incident occurred, in the period from 31 January 2015. She also noted that no document was produced which signalled the involvement of Mr Chaloub, as might have been expected, if he had any involvement in the works; or the extent of his involvement (such as the number of dates that he worked). I would add that there is no other reference in the documents tendered to the Court which bears his name, or that of his trading entity; although Counsel for the defendants observed that there was an invoice rendered by Mr Chaloub's business in the Joint Court Book that had been compiled for the purposes of the hearing. 9. Ms Welsh said that if the adjournment was granted, it might become necessary for the plaintiff to issue a fresh subpoena to produce documents, with the object of flushing out any further documents. She noted, in this respect, that it appeared to be the case when the second defendant gave evidence (remotely, in Mr Renshaw's chambers) that the latter had a bundle of documents in his possession. 10. The adjournment application was itself adjourned to today, so as to enable the defendants to obtain, overnight, further evidence of the status of Mr Chaloub's incapacity. The Court raised with Counsel for the defendants that, in addition to an update, it would expect to be apprised with a medical certificate and the Court also indicated that it expected to receive information as to why Mr Chaloub, allowing for his asserted incapacity, would be unable to give evidence remotely; as all other witnesses in the case had done (although the two witnesses called by the defendants were physically in attendance at the defendants' Counsel's chambers). 11. Overnight, and before the adjournment application resumed this morning, the defendants sent to the Court a medical certificate signed by Dr Lawrence Ong, a general practitioner in Penrith. It stated the following: "Buddy Chaloub is suffering from severe headaches and is unable to concentrate or think clearly. He is assessed as being unable to attend court either in person or remotely. He had a history of stroke". The period of incapacity was identified as being 28 October 2021 to 29 October 2021.