CUGG PTY. LIMITED V. GIBO PTY. LTD. [2000] NSWSC 723

New South Wales Supreme Court

CITATION : CUGG PTY. LIMITED V. GIBO PTY. LTD. [2000] NSWSC 723 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4647/99 HEARING DATE(S) : 24/07/00 JUDGMENT DATE : 24 July 2000

PARTIES : Cugg Pty. Limited - plaintiff Gibo Pty. Limited - defendant JUDGMENT OF : Hodgson CJinEq at 1

COUNSEL : Mr. A. Ogborne for plaintiff Mr. D. Feller for defendant SOLICITORS : Cutler Hughes & Harris, Sydney for plaintiff Richard M. Trayer, Sydney for defendant CATCHWORDS : PRACTICE - Application to re-open after conclusion of hearing - Relevance of mistake Urban Transport Authority of NSW v Nweiser (1991) 28 NSWLR 471 CASES CITED : Nikoloski v. Ridge Consolidated (1994) 116 FLR 192 Autodesk v. Dyason (1993) 176 CLR 300 DECISION : See end of judgment

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

CORAM: HODGSON, CJ in Eq.

Monday 24th July 2000

NO. 4647 OF 1999 CUGG PTY. LIMITED V. GIBO PTY. LIMITED

JUDGMENT (On application to re-open)

1 HIS HONOUR: I am dealing with an application by the defendant/ cross-claimant for leave to reopen its case, to introduce evidence by David Holgate and Kenneth Kiely contained in affidavits which those potential witnesses have sworn. 2 Mr Feller, for the applicant, has submitted that the evidence was not introduced at the hearing because of a mistaken belief by the legal advisers for the defendant/cross-claimant, and to some extent, also by the principal of the cross-claimant, concerning the dates of certain communications between the cross-claimant and the Council, which resulted in the legal advisers taking the view that the credibility of the evidence of the principal of the cross-claimant, Dr Abeshouse, would not be a significant issue in the case. 3 The mistake as to the dates of communication was, to some extent, appreciated shortly before the hearing, when a copy of a facsimile from Dr Abeshouse to the Council became available; but its full significance, so it is put, was not appreciated until Dr Abeshouse was cross-examined, and it became apparent that this matter could raise a serious question about Dr Abeshouse's credibility. 4 Mr Feller referred me to the cases of Urban Transport Authority of NSW v Nweiser (1991) 28 NSWLR 471, Nikoloski v Ridge Consolidated (1994) 116 FLR 192 and Autodesk v Dyason (1993) 176 CLR 300. He submitted that the crucial test was whether the interests of justice required leave to reopen, and that in circumstances such as this, where the failure to lead evidence was, in substance, the result of a mistake, and where there was no significant prejudice on the other side, leave should be granted. 5 Mr Ogborne, for the plaintiff, submitted that the alleged mistake simply concerned a discrepancy of dates. None of the evidence now sought to be put forward concerned that, but rather went to other matters relating to Dr Abeshouse' communication with the Council. The plaintiff was, in effect, using the suggested mistake about dates as a means of getting into hearing other evidence not related to the mistake. This evidence was relevant to matters which the defendant's legal advisers appreciated would be relevant, but in respect of which they made a tactical decision not to lead it. The actual mistake as to dates was appreciated before the hearing, and was dealt with by evidence-in-chief from Dr Abeshouse, although at that stage no real attempt was made to rectify the deficiency, perhaps in the hope that the significance would not be appreciated. In effect, the defendant had taken a risk of not calling other evidence. 6 Mr Ogborne referred me to a statement in Cross on Evidence to the effect that a party should not normally be permitted to reopen if it should have foreseen the occasion for the further evidence. He submitted that mistakes which have been suggested as grounds for allowing further evidence relating to such things as lapses of memory in legal advisers, or mistakes as to admissibility of evidence, but not such things as mistake as to the likelihood of a witness being believed, or mistake as to the assessment of a risk of a witness being believed. 7 He submitted that there would be prejudice to the plaintiff if leave was granted. The plaintiff's cross-examination of Dr Abeshouse had proceeded on the basis that this evidence was not to be called. The defendant would now, if the evidence is allowed, have the advantage of having waited to see how the cross-examination would proceed, and now calling evidence which would deal with perceived problems with Dr Abeshouse's evidence as disclosed by cross-examination. 8 There is considerable force in Mr Ogborne's submissions. However, Mr Ogborne has not pointed to any particular matter in the way the case was conducted or in the cross-examination of Dr Abeshouse which could cause specific prejudice. 9 I think the problem does have its origin in a mistake concerning the dates of communication, which was, in part, due to insufficient attention to the detail of the matter. It is true that to some extent that mistake was appreciated by the time the hearing commenced, but I think it probable that the full extent of the mistake and its possible significance was not then appreciated. It seems to me that the evidence which is now sought to be called does relate in a significant way to the consequences of the mistake and, on balance, I think the interests of justice would be best served by giving leave to lead this further evidence. 10 The occasion for the application has been problems on the defendant's side. In my opinion, it was perfectly reasonable for the plaintiff to oppose this application as it did. And accordingly, in my opinion, the defendant will have to pay the costs of this application and will be ordered to pay any amount which by the costs of the hearing have been increased because the evidence is sought to be led at this stage rather than at the hearing. 11 For those reasons I make the order sought in the Notice of Motion. 12 I order the defendant to pay the plaintiff's costs of this Notice of Motion, and also any costs occasioned by the leave which is given. 13 I may attempt to define those costs more clearly in due course. 14 I appoint 8th August 2000 for the return of subpoenas. 15 I list the matter on 10th August 2000 at 9.30am before me. 16 I vacate the listing on 25th August 2000 in the Expedition List. **********