NOONAN v AUSTRALIAN NEWSPRINT MILLS LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE JA 21 March 1994, 21 March 1994 MOTION — EXTENSION OF TIME TO APPEAL — CHANCE OF SUCCESS OF FRESH EVIDENCE. Clarke JA This is a notice of motion in which the claimant seeks an extension of time to appeal from a decision of Wood J given on 19 March 1991 and in which the claimant seeks leave in the event that an extension of time is granted to adduce fresh evidence of matters which have occurred since the trial. The matter has come before me on one earlier occasion and at that time I expressed the view that the question whether leave to adduce fresh evidence should be granted must be reserved to the appeal court if the claimant was successful in his other application. Whether fresh evidence should be admitted and if so the evaluation of that evidence are matters which should in my opinion be considered together and appropriately only by the court deciding an appeal. Accordingly, I do not propose to rule on the second application. However, some evaluation of the chance of success of the claimant in adducing the fresh evidence is necessary in determining whether to extend the time for allowing an appeal to be brought. As it seems to me in the particular circumstances of this case that application requires consideration of two separate but not entirely unconnected elements. The first is whether there has been a satisfactory explanation for the failure to file an appeal within time. In this case that is not unimportant for there has been a very lengthy delay of in excess of two years. The second is whether the claimant has any real prospect of securing the leave necessary to adduce further evidence. If, for instance, I concluded that the application to adduce fresh evidence was hopeless then in the particular circumstances of this case I would undoubtedly refuse to extend the time. Before dealing with the separate elements it is important I make some observations of a general nature. In his initial claim the claimant sought compensation for an impairment of his future earning capacity as a result of his back condition which he said disabled him to a degree. Wood J accepted his claim saying: ".. doing the best I can to assess a buffer for his reduced working capacity over the remaining expected working life I assess this loss in the sum of $65,000..." Given that the claimant was 42 years old at the date of trial and the relevant tables were three per cent tables, it would seem clear that the figure his Honour accepted represented about $100 per week for 23 years discounted in accordance with normal principles for vicissitudes. The reason which led his Honour to adopt that figure was that his Honour concluded that the claimant would continue to be employed by the opponent indefinitely. In the course of his judgment his Honour referred to the fact that no evidence had been called from any senior executive of the opponent to the effect that a position would be held open for the claimant indefinitely into the future. But his Honour noted the submission of the opponent's counsel which had, his 2 UNREPORTED JUDGMENTS Honour felt, obviously been made on its instructions that an inference to that effect should be drawn from the fact that the claimant had continued to be employed since the accident. That is a period of nearly six years. Of course, as his Honour pointed out, there had been changes to the claimant's employment and he had been given a choice of resignation, redundancy or return to a three day rotating shift position as winderman. The claimant accepted the latter on the basis that he had no practical choice. When his Honour came to his determination on the issue of the impairment of future earning capacity and the inference which he had been invited by the opponent's counsel to draw, his Honour said this: "... Lam not prepared on the evidence as it stands to positively find that he has been unfairly dealt with or that the defendant is only waiting for the resolution of this case to dismiss him or that hereafter it will look for any excuse no matter how slim to downgrade or terminate him. I must accept the submission put on behalf of its counsel that the contrary is the situation and that he will continue to be employed by it..." What follows in his Honour's judgment is of critical moment in the application before me. His Honour proceeded: "\.. However, if it turns out that such submission is not supported by the subsequent events then it must be recorded that this Court will have been misled by the defendant in a way which could only be described as discreditable and entirely unacceptable. It is on the basis that the defendant has no present plan to dismiss the plaintiff and has no intention to look for an excuse to downgrade or terminate him that I assess damages today. If it turns out that such submission is wrong then the damages awarded to the plaintiff will inevitably be substantially less than they should be... " The fresh evidence which the claimant seeks to adduce relates to events which have occurred since the trial starting with occurrences that took place about two weeks after judgment. They demonstrate, according to the claimant, a pattern of conduct by the opponent designed to culminate in and eventually culminating in his leaving the company. There is no doubt room for argument whether the claimant is correct in his assertion that the opponent had the intention at the time of the trial of getting rid of him or that the opponent shortly after trial developed that intention. The facts upon which the claimant has relied are asserted by him all to have occurred since the trial. The opponent has, however, brought forward evidence which suggests that it was seriously concerned about the capacity of the claimant to perform useful work for it in the light of his disability and that a number of events had occurred prior to the trial which had not been brought to the trial judge's attention. These events included discussions between the claimant and senior officers of the opponent and the referral of the claimant to two doctors, Dr Davey and Dr Opie by the opponent. According to counsel for the opponent there were ongoing discussions prior to the trial as to the claimant's position and that nothing which occurred after the trial represented a serious alteration in position by the opponent. If, its counsel argues, his Honour was not informed of these developments the opponent could not be blamed for that for the onus of proving his damages lay upon the claimant. I am bound to say that these submissions have a degree of substance and that it will be necessary eventually for the court hearing the appeal to evaluate the effect of the post judgment conduct in the light of the events which had occurred prior to the trial. There is, however, one observation I should make URJ NOONAN v AUSTRALIAN NEWSPRINT MILLS LTD (Clarke JA) 3 and that is this: that those pre trial events tend or may after analysis be thought to tend to have made it difficult for the opponent's counsel to have invited the court to draw the particular inference which in the end formed the basis for the assessment of the damages. The claimant's employment did not cease until fairly early in 1992 and even though he had earlier sought a legal opinion he had not made an application to reopen. The reason for his failure to seek a reopening was that he had been advised by counsel that such a course was not available to him and that he should bring proceedings in the Industrial Tribunal. The facts relating to those proceedings which occupied a fairly lengthy period and some rehabilitation undergone by the claimant are set out in his affidavit and it is unnecessary in my view to repeat them here. In June 1993, after fresh solicitors had been obtained by the claimant, he was advised by Mr Meadley that there was at least a prospect that he could have the damages reopened. Notwithstanding that advice his solicitors did not make application immediately but went about securing more information and more evidence. The lengthy delay makes it difficult for the court to grant the extension particularly as the change of position upon which the appeal will be based had occurred well over 18 months before the present application was brought. In addition, there is a question whether there is any real prospect that the fresh evidence on which the claimant relies would be admitted upon the appeal. In this respect Mr Hewitt submits that the authorities establish the principle that where an appeal has not been put on within the regulated time then applications for an extension of time in which to appeal and rely on fresh evidence are subjected to a very high burden. Mr Hewitt submits it is only in exceptional cases that such an application would be granted where an appeal was not itself filed within time for, as has been pointed out, once the time for appeal has been passed the litigious process is, to all intents and purposes, at an end. Mr Hewitt relied on Warr v Santos (1973) 1 NSWLR 432 at 444 and Mulholland v Mitchell (1971) AC 666 at 681. I am prepared to assume for present purposes that the principle to which Mr Hewitt has adverted should be applied. Notwithstanding this is a very rare case in which his Honour has expressly based his judgment upon the acceptance of a submission by counsel for the opponent but at the same time been sufficiently concerned about his acceptance of that submission to make the remarks which I have already set out. It seems to me that his Honour was stating in clear terms that if it were appropriate to conclude that, contrary to the submission, the claimant's job was very much in jeopardy at the time of trial, then his assessment would be wrong. Iam, of course, at the end of the day required to resolve the present dispute in accordance with the best interests of justice. In doing so I am required to balance the considerations in favour of granting the claimant the right to have his appeal heard against those considerations such as the delay, the theoretical end of the litigious process and the difficulties in securing the admission of fresh evidence upon the appeal in order to determine whether the application should be granted or not. I have concluded that the claimant should be allowed his day in court. I have done so substantially because of the terms of his Honour's judgment and the evidence which is, or may be, capable of supporting the inference that at the time counsel for the opponent was submitting to the court that it should draw the 4 UNREPORTED JUDGMENTS inference that the claimant would continue to be employed by the opponent indefinitely in the future his job was seriously in jeopardy. In all the circumstances the orders I make are as follows: 1. I extend the time for filing a notice of appeal until 10 December 1993 which is the day after a notice of appeal was actually filed. 2. I stand over the application for leave to adduce fresh evidence until the hearing of the appeal. 3. I will reserve the question of costs until I have heard the parties on that question. (Mr Meadley sought costs up to today. Opposed by Mr Hewitt who also sought costs) HIS HONOUR: The question of costs in applications of this kind are never easy. I think the appropriate costs order is the costs of this hearing be the opponent's costs in the appeal. This case I think should be heard fairly quickly. There is no application for expedition but bearing in mind the delay I think it is in the interests of all parties it be heard as an expedited appeal. That involves elevating it above people already in the queue but there are reasons which I think justify that. In view of the date of the judgment which will be the subject of the appeal and the circumstances appearing in the affidavits I propose to expedite the hearing of the appeal. It will be an expedition grade C. Counsel for the Claimant: J MEADLEY Instructed by: VACCARO'S, WODONGA (BY THEIR AGENTS LLOYD AND LLOYD) Counsel for the Opponent: A HEWITT Instructed by: MORAY and AGNEW