New South Wales Supreme Court CITATION : Short v Crawley [2003] NSWSC 1158 revised - 19/03/2004 HEARING DATE(S) : 27 November & 2 December 2003 JUDGMENT DATE : 2 December 2003 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Examiner appointed to take cross examination of plaintiff. CATCHWORDS : EVIDENCE [240] - Evidence on commission or letters of request - Jurisdiction and in general - Appointment of examiner - General rule - Power is discretionary - Ambit of discretion - EVIDENCE [252] - Affidavits - Use of affidavits - Cross examination of deponent - Deponent unable to be cross examined - Weight to be given to affidavit evidence. LEGISLATION CITED : Supreme Court Rules 1970 Part 27 r 1A Citibank Ltd v Liu; ABN Amro Bank NV v Liu [2003] NSWSC 569 Clyne v The Law Society of New South Wales NSWCA 4 September 1987 unreported Coch v Allcock & Co (1888) 21 QBD 178 CASES CITED : Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (1988) 28ACSR 688 Hardie Rubber Company Pty Limited v The General Tire & Rubber Company (1973) 129 CLR 521 Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 838 Re O'Neil [1972] VR 327 Short v Crawley [2003] NSWSC 609 Warwick Short (1P & 1XD) Nabatu Pty Limited (2P & 2XD) Christopher Crawley (1P & 3XC) PARTIES : Marsico Holdings Pty Limited (2D & 1XC) J & J O'Brien Pty Limited (3D & 2XC) Vensel Pty Limited (4D) Trudale Pty Limited (5D) Judith Kiralyhidi Crawley (6D) FILE NUMBER(S) : SC 2824/98 COUNSEL : I M Jackman SC (Ps & XDs) A J Bannon SC and D B Studdy (Ds & XCs) SOLICITORS : Kemp Strang (Ps & XDs) Blake Dawson Waldron (Ds & XCs) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J TUESDAY, 2 DECEMBER 2003 2824/98 WARWICK SHORT & ANOR v CHRISTOPHER CRAWLEY & ORS JUDGMENT 1 HIS HONOUR: This application arises from sad circumstances. Warwick Short (who is a plaintiff in these proceedings and whom I shall refer to throughout this judgment as "the plaintiff") is dying of cancer. He applies under Part 27 r 1A of the Supreme Court Rules 1970 for the appointment of an examiner to take his oral evidence in the days between 15 December and Christmas this year. He filed initially two affidavits in chief and has also recently produced a lengthy affidavit in reply. These will stand as his examination in chief in the proceedings. The oral evidence to be taken is his cross examination on behalf of the defendants. 2 The proceedings arise out of a long commercial relationship between the plaintiff and the defendants and are themselves lengthy. The trial is expected to take at least two months. The defendants' principal affidavit is of some 350 pages and is accompanied by and refers to some 20 to 25 volumes of documentation. The plaintiff's affidavit in reply has only recently been completed and is of some 150 pages. The other affidavits in reply have not yet been completed. 3 There are certain aspects which I find quite curious of the behaviour on the plaintiff's side of the record in the face of this tragic situation. The evidence shows that the diagnosis of his condition was made in May 2003. His condition was made plain to his solicitors by a report dated 11 June 2003 from Associate Professor Robyn Ward, an oncologist at St Vincent's Hospital. The burden of that was as follows: "I write with reference to your questions concerning this man's medical history. (a) Mr Short's prognosis Mr Short has metastatic carcinoma of the pancreas. Less than 20% of patients with this disease are alive at 2 years following diagnosis. Even with maximal medical therapy there is no long term cure for this condition. (b) The degree to which Mr Short should would be able to concentrate on preparing further affidavit for the proceedings. It is highly unlikely that Mr Short would be able to concentrate for sufficient periods of time to prepare affidavits for the proceedings you mentioned. Most patients will require rest for 6 or so hours per day and as the condition progresses the period of time for which they are awake and alert diminishes significantly. Metastatic carcinoma of the pancreas is one of the most aggressive malignant conditions and Mr Short's quality and quantity of life is likely to be severely compromised by this illness." This seems to have been taken by the plaintiff's solicitor, Mr Linden, to mean that it was likely that the plaintiff would survive for two years and that his general health and wellbeing would not be compromised for some six to nine months from the date of the report. Mr Linden was probably encouraged in this view by the plaintiff himself, who insisted he felt well and able to work. However, I regard it as very unrealistic that greater weight was not given to the possibility that the plaintiff might become very ill quite shortly and might be one of those who died comparatively early in the progression towards the 80 per cent mortality within two years foretold by Professor Ward. That Mr Linden was unrealistic in this matter is to my mind demonstrated by his following answer in cross examination: "A Up until knowing Mr Short was seriously ill, it was expected Mr Short would be available for the next 6/9 months. He found out he was seriously ill late October." In fairness to Mr Linden I have already said that it was apparent he was encouraged in his view by the plaintiff himself. The fact that Mr Linden stated that it was "by chance" that the solicitor discovered that the plaintiff was in hospital in October suggests a lack of frankness with his solicitor as to his wellbeing. The reason for this may well be a stance of optimism, or over optimism, evinced by the plaintiff as part of a mechanism for dealing with the extremely painful situation that he faced. 4 The next medical information available was from Dr David R Bell in late October 2003. Dr Bell, the Senior Oncologist at the Royal North Shore Hospital, took over the management of the plaintiff's condition on 4 July 2003. With regard to that condition he stated as follows. "(a) Mr Short's prognosis; Mr Warwick Short has metastatic carcinoma of the pancreas. This is an incurable condition with a very poor prognosis. Approximately 20% of patients, only, are alive at 1 year after diagnosis. Mr Short has commenced a programme of palliative chemotherapy but unfortunately a recent CT scan indicates progression of his malignancy. I anticipate his survival to be in the vicinity of 4 - 6 months. (b) The degree to which Mr Short would be able to concentrate on preparing his further affidavit in the Proceedings; in view of the progressive nature of his metastatic malignancy, along with the ongoing chemotherapy, it is unlikely that he will be able to concentrate for sufficient time to prepare further Affidavit [sic] for the proceedings. He will be requiring progressing [sic] periods of bed rest and his capacity to analysing [sic] comment on material will diminish as his general condition becomes more frail." As well as the plaintiff's condition having deteriorated by that time it should be noted that Dr Bell's view is that the period in which 80 per cent mortality would be reached by sufferers from metastatic carcinoma of the pancreas is one year only, not two. Even then, it was not until late November that this application was brought before the Court. Dr Bell in a subsequent report gave a median period of survival of sufferers from pancreatic cancer as six to ten months with non metastatic disease and three to six months with metastatic disease. In his opinion Mr Short has done well to survive for as long as he has. His present anticipation of the plaintiff's survival is three months. As to the plaintiff's ability to undergo cross examination his opinion as at 24 November 2003 was as follows. "3 In my opinion Mr Short would unable to be cross-examined for more than short periods of time. I anticipate that short periods of cross-examination would be possible before Christmas 2003 but I doubt that his health would enable him to cope physically with cross-examination beyond that time. (a) his capacity to perform concentrated work under pressure would be severely compromised by his general fatigue. (b) in my opinion 1 - 2 hours at a time are probably the maximum that Mr Short could be examined at any one time. (c) the break between periods of examination is likely to be 3 - 4 hours. (d) Mr Short may be able to undertake multiple period [sic] of cross-examination on the same day provided significant periods of rest were provided. (e) Mr Short would not be able to be cross-examined on the followings days as he will be receiving chemotherapy: Tuesdays 2/12, 9/12 and 16/12/03. (f) Mr Short maybe able to withstand cross-examination for 2 - 3 days in a row, provided that appropriate rest breaks are provided." 5 I have already referred to certain aspects I find curious as to the plaintiff's legal advisers' reaction to this situation as it developed. The situation is made all the odder by the fact that the matter was before Hodgson JA in relation to the addition to the proceedings of a cross claim and the time at which the cross claim should be tried. The application was decided by his Honour on 7 July 2003: Short v Crawley [2003] NSWSC 609. At that time a deliberate decision was taken not to inform the defendants, or the Court, of the plaintiff's diagnosis with cancer. It was said that it was intended to apply at some stage, when the evidence was concluded, for an expedited hearing of the proceedings by reason of the plaintiff's medical condition. Nothing was done to reveal the situation and bring the matter into the Expedition List so that it could be case managed by the Expedition Judge, even if (as is the practice of the Court) the order for expedition was not actually made until the matter was absolutely ready for trial. Mr Linden conceded in cross examination that he was well aware that it was the practice of the Court, in relation to matters fit to be expedited, for them to be brought early into the Expedition List, even if the order for expedition could not or would not be made until later. 6 It is suggested on behalf of the defendants that this delay should be laid squarely at the door of the plaintiff personally by reason of the presumption or assumption that he specifically gave instructions to his solicitors to act in this way. Whilst, when a matter is settled, there may be a presumption or assumption that lawyers are acting on instructions until the contrary be shown, I am not prepared to make such a presumption or assumption as to decisions embedded in the detailed process of case management, where it cannot realistically be thought that even intelligent and worldly litigants are intimately acquainted with the way in which the Court works. Furthermore, Mr Linden's evidence suggests to me that it was the mental processes of the lawyers that were operative in following the course that was followed. There was no suggestion by Mr Linden that he was constrained by instructions from the plaintiff himself. On the other hand it should be said that Mr Bannon, of Senior Counsel for the defendants, sedulously avoided (as he was perfectly entitled to) asking of Mr Linden in cross examination questions which would have indicated how the decision was made and the degree of the plaintiff's personal participation in it. Those matters remain rather puzzling. 7 The complaint made on behalf of the defendants in opposing the appointment of an examiner to hear the plaintiff's cross examination is that they are placed in an impossible or at least very difficult situation by the course that has been followed. They are called on to cross examine a man who is very ill, when another course may have resulted in an earlier cross examination. They are required to do so within about a fortnight of receiving a further 150 page affidavit. They are required to do so in circumstances where the cross examination may have to be conducted in broken sections. The effect of illness and fatigue on the plaintiff's concentration and recollection are unclear. They say that there is a rule which is at least clear in its terms, if not entirely so clear in its application, that will apply to the weight to be given to the plaintiff's evidence in chief in the absence of cross examination. They say that an unclear situation will be created where a sick plaintiff is cross examined in circumstances where his mental acuity is not clear and it will be very hard to assess his credibility (despite the intention that they videotape record the cross examination) or to assess the degree to which his evidence is derogated from or affected by his medical condition. 8 As far as the law is concerned, it is clear that the discretion to appoint an examiner under Part 27 r 1A is a discretion of the widest generality. As Einstein J said in Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 838: "35 Rule 27 Rule 1A contains no express limitation as to the exercise of the power, thereby conferring a wide discretion upon the Court. However the ultimate test is described as whether it is in the interests of justice to make the order in the circumstances of the case. The Court in Coch v Allcock & Co (1888) 21 QBD 178 at 181 (as quoted in The McKay Machinery Co Ltd v Turner and Another (1899) 16 WN (NSW) 192 at 193) stated: 'It is clear that, according to the established practice, it is a matter of judicial discretion, and the commission ought only be granted on reasonable grounds being shown for its issue. The matter being one of discretion, it is impossible to lay down any general rule as to when a commission will be granted. It must depend on the circumstances of the particular case. The Court must take care on the one hand that it is not granted when it would be oppressive, or unfair to the opposite party, and on the other hand that a party has reasonable facilities for making out his case, when from the circumstances there is a difficulty in the way of witnesses attending at the trial. All the circumstances of each particular case must be taken into consideration.'" It is equally clear as a matter of law that the formula is that contested evidence, upon which cross examination is precluded, is to be given but limited weight and that that situation does not differ whether or not any fault can be attributed to the witness or the party calling him or her, so far as the lack of occasion for cross examination is concerned. Thus, if the witness is killed in a traffic accident the day before cross examination the evidence is not in any better situation than where the party proffering the witness can be regarded as at fault in respect of the absence: see Clyne v The Law Society of New South Wales NSWCA 4 September 1987 unreported, especially per Mahoney JA; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (1988) 28ACSR 688 at 698 per Santow J; Re O'Neil [1972] VR 327 at 333 per Anderson J; and my judgment in Citibank Ltd v Liu; ABN Amro Bank NV v Liu [2003] NSWSC 569. 9 In the end I am obliged to decide the application in accordance with what I see as the dictates of justice: Coch v Allcock & Co (1888) 21 QBD 178 at 181 per Lord Esher MR; Hardie Rubber Company Pty Limited v The General Tire & Rubber Company (1973) 129 CLR 521 at 559 per Walsh J. 10 Mr Bannon has been very persuasive in his arguments and has pointed out strongly the disadvantages which the defendants have been placed under and which may have been mitigated had the plaintiff acted more promptly in bringing the matter to light by communicating his diagnosis to the defendants and to the Court. On the other hand Mr Bannon's persuasiveness should not distract from the fact that the defendants are now seeking a litigious advantage: they are seeking to preclude a situation in which the degree of credibility of the plaintiff's evidence may be improved by even limited cross examination. They are right in saying that the situation faced by the trial Judge will not be an easy one. He or she will have the advantage, if I make the order along the lines contemplated by both parties, of having a videotape recording of the examination. On the other hand, the task of assessing the credibility of the plaintiff's evidence in the light of his illness and fatigue will not be an easy one. 11 Nonetheless, the plaintiff would be severely prejudiced by preclusion from an opportunity of demonstrating to the Court, by his answers in cross examination, that his evidence in contested matters is credible. It seems to me that the injustice of this preclusion would outweigh the opposing factors I have discussed. In coming to this conclusion it seems to me that it is not clearly demonstrated that the course followed was dictated by him to gain some advantage. In fact, it has probably operated to his disadvantage. 12 Although I have not found the matter an easy one, I have come to the conclusion that I should appoint an examiner to take the cross examination of the plaintiff as sought by Mr Jackman, of Senior Counsel for the plaintiff. I should add that Mr Jackman was not involved in the process, which I have found curious, which took place in the plaintiff's camp between June and now. He has only recently been retained in the matter and the present application was brought to a head swiftly after he assumed the brief. 13 Short minutes should be brought in to give effect to my decision. The short minutes should include directions relating to various steps discussed during argument to minimise prejudice to the defendants. ********** Last Modified: 11/28/2007 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.