Geary v David Maurice Stack t/as Stacks the Law Firm [2000] NSWSC 1075

New South Wales Supreme Court

CITATION : Geary v David Maurice Stack t/as Stacks the Law Firm [2000] NSWSC 1075 CURRENT JURISDICTION: Civil FILE NUMBER(S) : SC 21108/96 HEARING DATE(S) : 20 November 2000 JUDGMENT DATE : 23 November 2000

PARTIES : Ralph Adrian Geary (Plt) David Maurice Stack t/as Stacks the Law Firm (Def) JUDGMENT OF : Brownie AJ

COUNSEL : K Andrews (Plt) R Burbidge QC/A Casselden (Def) SOLICITORS : W H Parsons & Associates (Plt) Mallesons Stephen Jaques (Def) CATCHWORDS : No question of principle CASES CITED : Southern Cross Exploration NL v Fire & All Risk Insurance Company Limited [1985] 2 NSWLR 340 Smith v New South Wales Bar Association (1992) 176 CLR 256 DECISION : See para 15

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BROWNIE AJ

THURSDAY, 23 NOVEMBER 2000

21108/96 - GEARY v DAVID MAURICE STACK t/as STACKS THE LAW FIRM

JUDGMENT

1 HIS HONOUR: By Notice of Motion filed on 17 October 2000 the plaintiff seeks an order for leave to reopen his case. Although it is not framed in so many words, his application is to reopen the hearing generally, as well as for leave to amend his Statement of Claim. 2 The trial took place on 31 January and 1 and 2 February last. On 10 February I published reasons for judgment, but did not enter judgment, since the parties had not then gone into evidence, so far as concerned the assessment of damages in relation to the one issue upon which I found in favour of the plaintiff. Thereafter, on the application of the plaintiff, the case was adjourned from time to time until the present application was made. 3 It is plain that there is power to grant the plaintiff the relief he seeks, but the defendants contend that as a matter of discretion the orders sought should not be made. I approach the application by reference to the judgment of Brennan, Dawson, Toohey and Gaudron JJ in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 265 to 267. 4 The plaintiff conceded that if the orders sought were granted, the defendant would be prejudiced as to costs, and the defendants did not contend for any greater prejudice. That is, any prejudice sustained can be cured, and this topic need not be further mentioned. 5 The plaintiff's submissions may be summarised under three broad heads: first, the trial took place with the plaintiff's then lawyers under a misapprehension about the law; the plaintiff accepted that whilst generally speaking the parties are bound by the way in which they conducted a trial, that is not so if the conduct of the trial took place under a mistake, as happened here; and he contended that the trial miscarried because of the failure of the defendants to give adequate discovery: Southern Cross Exploration NL v Fire & All Risk Insurance Company Limited [1985] 2 NSWLR 340 at 345. 6 I do not consider that there is any merit in the last point. The plaintiff submitted that there were two file notes that should have been discovered, and which were not discovered. However, at trial the plaintiff's then solicitors had possession of the complete file of the defendants, and the plaintiff's present solicitors have possession of it; there is no direct evidence that the supposed file notes ever existed; they are not in the file I have mentioned; and on the evidence I would not infer they ever existed. One may speculate that file notes might have been brought into existence, but that is all. There does not seem to me to be any basis at all for inferring that there is anything inappropriate about the failure of the defendants to discover the supposed file notes. 7 The other two matters are much more significant. The plaintiff contends that the trial proceeded on a misapprehension as to the state of the law. At page 114 of the transcript the reporter summarised a submission by Mr Burbidge QC, for the defendants, referring to the opening address of the plaintiff's then counsel, Mr Graves SC, and the plaintiff submitted that that passage should lead to the inference that the whole trial proceeded on the basis of an error of law. On the present application, Mr Burbidge pointed to the first sentence of paragraph 13 of my reasons for judgment. Since none of the plaintiff's present lawyers were acting for the plaintiff at the time of the trial, this led to some degree of doubt as to what had happened at the trial. There is no direct evidence, concerning the state of mind of any of the plaintiff's then lawyers. 8 My notes at the time of the trial record that Mr Graves did initially say words to the general effect summarised at page 114 of the transcript, but then, presumably in consequence of my saying or asking something, he withdrew that statement and reformulated it, saying that if the plaintiff would have failed on his s 58 application, having regard to his knowledge of the nature and extent of his injury, and to what a reasonable person in his position would have done in his own interests, then he would have failed on his s 60G application. I have no better note, and no precise recollection, but reading my notes as a whole, my impression is that the concession that was made then was one of a factual nature, rather than as a statement of legal principle; or, to put the same thing in another way, the concession related to the way the two sections applied to the facts. 9 At the end of the opening address of Mr Graves, I invited Mr Burbidge to open the defendants' case, and he did so, saying in relation to this topic that whilst the plaintiff had lost a window of opportunity to obtain an order under s 58, the enactment of s 60G gave him a second window of opportunity; and he then went on to deal with the factual aspects concerning this issue, referring to the plaintiff's reluctance to act, his delaying making decisions, his failing to keep appointments and the like, culminating in his giving instructions to the defendants to withdraw the s 60G application. 10 As I have said, there is no direct evidence concerning the supposed misapprehension as to the relevant law. Rather, the plaintiff invites me to infer, primarily from the passage at 114 of the transcript, that there was such a misapprehension; and from that starting point he urges the conclusion that if he himself had been told the correct position, he would have insisted that the trial be conducted differently. 11 I do not think it would be right to accept this starting point. The case was conducted on the basis that the evidence of the various witnesses had been reduced to writing prior to the trial beginning and then there were opening addresses before any evidence was called. As far as I can see, the parties came to court prepared to litigate, as a major factual issue, the question whether on the facts the s 60G application would have succeeded had it been pressed, and the exploration of the facts relevant to this issue occupied a significant part of the hearing. 12 The plaintiff contends that if the trial had not proceeded on a false assumption concerning the law, he could and would have led evidence as to the lack of prejudice suffered by the hospital, arising from the passage of time. On the evidence on the present motion, more evidence was available, or might have been available, but it is difficult to see how the supposed error of law affected the availability of this evidence. Whether or not the hospital suffered prejudice by reason of the lapse of time was a significant issue under both the s 58 application and the s 60G application, and one of the points raised by the defendants at the trial was that the plaintiff's reluctance to proceed with the s 60G application led to the defendants advising the plaintiff that, because the shortage of evidence apparently available, the plaintiff might well consider withdrawing his application. That is, the supposed availability or non-availability of further evidence going to the issue of prejudice was one of the factual matters actually litigated at the trial. 13 The public interest in maintaining the finality of litigation seems to me to be a significant matter in the context of this case, hard as the plaintiff might perceive the result to be. 14 In Smith at 267 the court said that the appeal rules relating to fresh evidence "may" provide a useful guide as to the manner in which the discretion to reopen should be exercised in a case such as this one. Assuming that these rules do offer such a guide in this particular case, I am not satisfied that any of the relevant criteria (summarised in Ritchie's Supreme Court Practice at para 51.19.1) have been made out. I dismiss the motion with costs. 15 Given these views, there is no profit in exploring the application for leave to amend. I dismiss the motion with costs. **********