New South Wales Supreme Court CITATION : Jermen v Shell Co & Anor [2004] NSWSC 168 HEARING DATE(S) : JUDGMENT DATE : 16 March 2004 JUDGMENT OF : Shaw J at 1 DECISION : Affidavit of Robert Slater to be admitted CATCHWORDS : Interlocutory decision - Late evidence - Admissibility of affidavit LEGISLATION CITED : Evidence Act 1995 (NSW), s46 Browne v Dunn (1894) 6 R 67; Chocolate Factory Apartments Limited v Westpoint Finance Pty Limited & Ors [2003] NSWSC 547; CASES CITED : Multiplex Constructions Pty Ltd v HSH Hotels (Australia) Ltd as Trustee of SHR Kent Street Trust & Anor [2003] NSWSC 1069; Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; Western Sydney Area Health Service v Gibson [2001] NSWIRComm 290. Marin Jermen (Plaintiff) PARTIES : The Shell Company of Australia (First Defendant) Colchester GR Pty Ltd (Second Defendant) FILE NUMBER(S) : SC 20256/02 COUNSEL : L. King SC with A. McInerney (Plaintiff) D. Miller with G. Young (Defendants) SOLICITORS : Carroll & Associates (Plaintiff) Moray & Agnew (Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Shaw J 16 March 2004 20256/02 MARIN JERMEN (Plaintiff) v THE SHELL COMPANY OF AUSTRALIA Ltd (First Defendant) & COLCHESTER G R PTY LTD (Second Defendant) INTERLOCUTORY JUDGMENT 1 Shaw J: In this case the defendants seek leave to file in court and read an affidavit of Mr Robert Slater, who is apparently a football (soccer) commentator and television journalist, as expert evidence. 2 The affidavit, which I have read, recounts the professional football playing career of the deponent, gives some details about various transfers that he has encountered and, perhaps more contentiously, contains a commentary upon the professional playing history of the plaintiff, on the assumption that the material given to the deponent is an accurate summary of that career. The affidavit proffers some opinions as to the fact that it was lucky for the plaintiff to have been given the opportunity to play for certain specified teams in Europe and contains the pejorative opinion that Mr Jermen's career in the National Soccer League (Australia NSL) was "patchy". This conclusion is dependent upon an analysis of the number of goals scored (in his role as a "striker") and the position of his team in the NSL table. Furthermore, the affidavit expresses some views about differing playing levels across Europe, factors affecting a player's professional career and prospects. It also deals with opportunities for coaching jobs in the soccer industry. 3 This affidavit was, regrettably, served very late in the course of these proceedings. Indeed it was served on what is said to have been the evening of last week, that is the 8th March 2004, in disconformity with the procedures of this Court. 4 The procedural question is as to whether the evidence should be allowed. If it is admitted, then the plaintiff has foreshadowed particular objections to some aspects of the affidavit, which can be dealt with in due course. 5 The defendant says that there is no tangible or substantial prejudice which has been alleged or which can be identified, that is to say that there is no irremediable prejudice which the plaintiff would incur if this material were entertained by the court, subject of course to cross-examination. In particular, the defendant concedes that the plaintiff could lead further evidence in reply, that the plaintiff could seek an adjournment, and that remedies would be available in terms of costs arising from the late service of this material. I adopt the observations of Einstein J to the effect that there is a need for a party asserting prejudice to provide evidence of it: Chocolate Factory Apartments Limited v Westpoint Finance Pty Limited & Ors [2003] NSWSC 547 at [68]. 6 Attention has been drawn by the defendant to the judgment of Bergin J in Multiplex Constructions Pty Ltd v HSH Hotels (Australia) Ltd as Trustee of SHR Kent Street Trust & Anor [2003] NSWSC 1069 in which her Honour referred to the procedural rule which requires that an advocate needs to put to an opponent's witness, in cross-examination, the nature of the case upon which he or she is proposed to rely in contradiction of his/her evidence. Her Honour said, at [56]: The "rule" is a procedural one, the adherence to which enhances the fairness of a trial. In this case it was obvious that the parties were at issue as to whether the defects were minor or would prevent Completion. There could have been no surprise to HSH, in the Browne v Dunn sense, that Multiplex would be submitting that, inconsistently with what the HSH witnesses had said, the defects were minor or such as would not prevent Completion. To use the words of Lord Herschell LC, notice that Multiplex would be suggesting that Mrs Lapstun's evidence was to be preferred over that of Mr Nixon, thus impeaching his version, "had been so distinctly and unmistakably given" by the service of the competing statements. I accept, however, the plaintiff's submission that this judgment lays down no general principle which favours the defendant. 7 As the defendant has submitted, s 46 of the Evidence Act 1995 (NSW), provides ample scope for a court to grant to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined in circumstances which are specified in that section of the Act. Heydon J in his book "A Guide to the Evidence Acts 1995 (NSW & Cth)" has written that s 46 "leaves it obscure" as to what is left of the rule in Browne v Dunn (1894) 6 R 67. 8 As the High Court held in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, a party should be permitted to raise an arguable defence provided any prejudice to other parties could be compensated by costs. Absent real or tangible prejudice, procedural flexibility should be the leitmotiv of contemporary litigation. The rules of court ought to be accorded appropriate respect and weight, but they should be the servants rather than the masters of justice and should be "dealt with in accordance with 'modern judicial practice'": Western Sydney Area Health Service v Gibson [2001] NSWIRComm 290 at [24] per Wright, Walton and Hungerford JJ. 9 In all of the circumstances I think that it is a cogent argument, which counsel for the defendants has put, that procedural fairness is secured by the possibility of the plaintiff tendering further evidence in response to the affidavit of Mr Slater, that any appropriate application for adjournment can be, and should be entertained and determined in accordance with the principles of procedural fairness, and that there would be costs consequences visited upon the defendants flowing from the late service of this material. 10 Thus, in the circumstances, I propose to grant leave to have Mr Slater's affidavit filed in court, and to allow counsel for the defendant to read it, subject to specific objections which may be articulated and which have been foreshadowed, and which will be ruled upon in due course. ********** Last Modified: 03/16/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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