PARTRIDGE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL GLEESON CJ, PRIESTLEY JA and MEAGHER JA 16 May 1995 [1995] NSWCA 358 Gleeson CJ. We have before us a motion for leave to adduce fresh evidence on the hearing of this appeal. The appellant is a young woman who was seriously injured in a motor vehicle accident some years ago and is currently, because of the nature and extent of her injuries, in the care of the Protective Commissioner. Her injuries were the consequence of the negligence of a driver of a motor vehicle and she sued in the Common Law Division of the Court seeking damages for negligence. Her action came on for hearing before Dunford J. It was heard in two stages. In May 1993 his Honour resolved most of the issues but stood the matter over for further argument in relation to some outstanding questions. Other argument took place in September 1993. Thereupon Dunford J entered a judgment in favour of the appellant for an amount slightly in excess of $2 million. There was an appeal complaining of what was said to be the inadequacy of the award of damages in certain particular respects. That appeal was, after a number of vicissitudes, listed for hearing today. When the matter came on there was an application by the respondent to dismiss the appeal for want of prosecution -that application was heard and dismissed. There was also an application on behalf of the appellant to add a substantial number of new grounds of appeal claiming that in various additional respects the award of damages was inadequate. Some of the matters raised in those additional grounds of appeal go to issues that are of general importance in relation to the assessment of damages for personal injuries. We granted leave to amend the notice of appeal whilst reserving to the respondent the right to advance such arguments as may be founded on a contention that the points, or some of the points, sought to be raised by the new grounds were not taken at first instance. It has become unnecessary for us at this stage to get involved in any consideration of that subject. The next matter that was raised was the subject of the motion for leave to adduce fresh evidence. Within the last few days, and as recently as yesterday, the Court and the respondent have been given notice of various kinds of information which the appellant would wish to put before the Court by way of additional evidence. In order to explain the nature of that evidence it is necessary at this stage to make reference to another major piece of litigation currently before the Court. That is the case of Rosniak v GIO. The matter has already been the subject of one trial, an appeal to the Court of Appeal and an unsuccessful application for special leave to appeal to the High Court. The appeal to this Court is reported as GIO of NSW v Rosniak (1992) 27 NSWLR 665. Following an unsuccessful application for special leave to apply to the High Court, and pursuant to the order made in this Court, the case of Rosniak went back for a retrial. That retrial commenced before Badgery-Parker J in the 2 UNREPORTED JUDGMENTS Common Law Division in September last year. It remains part heard and is expected to be completed in June of this year when hisHonour can return to the hearing of the matter having regard to his other commitments. It seems that the genesis of importance and perhaps all of the evidence the subject of the notice of motion for this appeal was in the hearing of the trial of Partridge. The solicitor for the appellant in this appeal was also the solicitor for the plaintiff in the case of Rosniak. Senior Counsel who is appearing for the respondent in this appeal is appearing as Senior Counsel in the part heard trial of Rosniak. I would infer from some things that have been said to us from the Bar table that it was regarded as expedient to devote rather more resources to the preparation of the retrial in Rosniak in 1994 than had been devoted to the trial in this matter in 1993 and Mr Kelly has explained to us why that was so. It is unnecessary for present purposes to go into that explanation. As a result, however, there was obtained for the purpose of the retrial in Rosniak a good deal of statistical and other information, and actuarial analysis, which is relevant to some of the grounds of appeal and particularly relevant to the new grounds of appeal in this case. That material was obtained and prepared for the purpose of the Rosniak retrial and a good deal of the additional evidence sought to be adduced in this appeal is, in fact, in the form of a copy of the evidence adduced in the Rosniak retrial. To give an example of some of that material, it consists of the historical returns of the Protective Commissioner's fund going back to 1935, information as to 10 year Commonwealth Bond rates going back to 1935 and information as to the annual rate of inflation in Australia and average weekly earnings going back over the same period. There is also, as I indicated, actuarial analysis of that material. Material of that kind, it will be argued, is relevant to a consideration of the grounds of appeal in the present case and, as I said, particularly the further grounds of appeal that were added by amendment this morning. It has always been the manifest desire of the solicitor for the present appellant to endeavour to procure the result that the appeal in this matter should not come on for hearing before the determination of the retrial in Rosniak and, if possible, the determination of any appeal that might be brought from the decision of Badgery-Parker J. That prompted an unsuccessful application in the very early days for this appeal to be adjourned until Rosniak came on appeal before this Court and that may also be what prompted the unsuccessful application by the respondent to have this appeal dismissed for want of prosecution. At this stage, without making any comment on the future progress of this appeal, we are obliged in the events that have occurred to deal now with the motion for leave to adduce fresh evidence. In my view that application should fail. The evidence in question does not qualify for the description 'fresh evidence'. As the events that occurred in Rosniak demonstrate it is all evidence that could have been obtained for the hearing in this matter before Dunford J. Indeed, a good deal of it is evidence that could have been obtained for that purpose with very little financial expenditure. As has been pointed out in the course of argument, the historical rates of the Protective Commissioner's fund going back to 1935 constitute information that could have been obtained by a telephone call or letter to the Protective Commissioner. There is no suggestion that the Protective Commissioner was disinclined to make information of that kind available for the purpose of litigation. Similarly, there is no basis upon which it can be suggested that information as to Commonwealth Bond rates or as to the WARTRIDGE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Gleeso& CJ) rate of inflation or average weekly earnings is evidence or information or material that was not reasonably available at the time of the original hearing. It simply seems to point to the fact that there was a good deal more evidence adduced in the Rosniak retrial than was adduced in thetrial in this matter before Dunford J, and the solicitor for the appellant would now like to have the benefit of that evidence for the purpose of this matter. That is not a sufficient basis to justify reception of this material as fresh evidence and I am of the view that the motion for leave to adduce fresh evidence should be dismissed. On the other hand, and without having heard any argument on the matter, I am a little puzzled at the assumption that it is necessary for all of this material to be the subject of formally tendered evidence. It is at least arguable that some of it is material of which this Court can take judicial notice or material that is available in publications to which this Court is entitled to have reference without the need for the formal tender as evidence of those publications. Such an argument has been foreshadowed by the solicitor for the appellant. It is, however, obviously necessary in fairness to the respondent that if such argument is to be advanced the respondent should have particulars of the information upon which the appellant would claim to be entitled to rely on the basis that I have just mentioned. A good deal of the information sought to be adduced as fresh evidence was only provided, at least in connection with this appeal, to the respondent at a very late stage. Senior Counsel for the respondent has informed us that in the part heard proceedings before Badgery-Parker J the respondent has set out to answer some of that material by evidence adduced by the respondent and by argument. One of the matters that seems to me of particular importance is this. I earlier adverted to the fact that at least some of the issues the appellant desires to raise on this appeal, being issues covered by the amended grounds of appeal, are issues that are of a general importance to litigants going far beyond the parties to the present proceedings. It would be most unsatisfactory if this Court were to determine those issueswithout having the benefit of proper information. Whether or not the rejection of the motion for fresh evidence will significantly curtail the information which the appellant is entitled to rely on is something that remains to be seen. I would propose that the course that should be taken at this stage is that, having rejected the application for leave to adduce fresh evidence, we should direct the appellant within seven days by letter to the respondent's solicitor to specify the information upon which the appellant would claim to be entitled to rely on the basis of judicial notice or on the basis of the availability of that information in publications to which this Court is entitled to have regard without the need to tender those publications as exhibits. The matter should be stood out of today's list to enable that to be done and the question of the further progress of the appeal can then be a matter to be determined, if necessary, in the light of the particulars that have been provided and the respondent's view of and reaction to those particulars. It has been said to us in the course of argument that it is expected that the hearing of the Rosniak retrial will conclude in June of this year, although from what we have been told about the case, I suppose we can assume that Badgery-Parker J will reserve his judgment for some time. Having regard to the exigencies of the Court of Appeal's list it may be that the practical result of what I am proposing will be that there will be a decision in Rosniak before this matter is re-listed for hearing by this Court. If that is the practical result of what occurs it seems to me it will not necessarily be a bad thing because, as I have already JOBNAME: No Job Name PAGE: 4 SESS: 1 OUTPUT: Mon Feb 25 18:13:55 2008 /reports/caseml]/case/urj/9508 134 UNREPORTED JUDGMENTS said, it would be desirable that these important issues be resolved on the basis of proper factual information and with the benefit of a decision of a Judge at first instance based upon an analysis of that information. Accordingly, the orders that I would propose are as follows: 1 The application for leave to adduce fresh evidence should be dismissed. 2 The solicitor for the appellant should be directed to provide to the solicitor for the respondent within seven days of today's date particulars of the information, if any, upon which the appellant would claim to be entitled to rely by way of judicial notice or by way of reference by the Court to written materials which do not need to be tendered as exhibits. 3 If there is any information of a corresponding kind upon which the respondent desires to rely, and I apprehend from what has been said in argument that there may be, then the solicitor for the respondent should within a further period of fourteen days give corresponding particulars to the solicitor for the appellant. 4 The Court should further direct that within the same period of seven days mentioned earlier the solicitor for the appellant should provide to the solicitor for the respondent particulars of grounds 1C and 1D in the amended grounds of appeal and of any information sought to be relied upon in support of those grounds and the written submissions relied upon in argument to sustain those grounds. 5 The proceedings should be stood out of today's list and adjourned to a date to be fixed by the Registrar and I would propose that the costs of today's proceedings should be costs in the appeal. Priestley JA. I agree with the proposed orders and the reasons given for making them. Meagher JA. So do I. 30 Gleeson CJ. The orders and directions will be as I have proposed. Orders accordingly.