New South Wales Supreme Court CITATION : U.S. Manufacturing Company Limited v ABB Service Pty Limited [2006] NSWSC 651 HEARING DATE(S) : 23 June 2006 JUDGMENT DATE : 3 July 2006 JURISDICTION : Common Law Division JUDGMENT OF : Associate Justice Malpass at 1 DECISION : The application fails. The Notice of Motion is dismissed. The Plaintiff is to pay the costs of the Notice of Motion. CATCHWORDS : Application to adduce further evidence in appeal - distinction between fresh evidence and further evidence - special grounds - witness said to be in ill health at time of trial becomes available after bringing of appeal. LEGISLATION CITED : Supreme Court Act 1970, s 75A, r 46.16 CASES CITED : Akins v National Australia Bank (1994) 34 NSWLR 155 PARTIES : U.S. Manufacturing Company Limited (ACN 935 231 553) (Plaintiff) ABB Service Pty Limited (ACN 68 003 337 611) (Defendant) FILE NUMBER(S) : SC 15221/05 COUNSEL : R G Hanrahan (Plaintiff) W V McManus (Defendant) SOLICITORS : Thomas Booler & Co (Plaintiff) Peter Kinsey (Defendant) LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 1558/04 LOWER COURT JUDICIAL OFFICER : Johnson LCM IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Associate Justice Malpass Monday, 3 July 2006 15221 of 2005 U.S. Manufacturing Company Pty Limited (ACN 935 231 553) v ABB Service Pty Limited (ACN 68 003 337 611) JUDGMENT 1 His Honour: These proceedings concern a dispute relating to the number of gearboxes delivered by the Plaintiff to the Defendant. The Plaintiff contends that in December 2002 it delivered eight gearboxes. The Defendant alleges that only four were delivered. The Plaintiff further contends that in January 2003 it delivered another eight gear boxes (six being new and two being reconditioned). The Defendant alleges that once again only four were delivered at that time. The place of delivery was a Sydney Water sewerage plant at Winmalee. 2 There is common ground that the Defendant paid for eight gearboxes in December 2002. The dispute that remains is the question of payment for the other eight gearboxes. At its highest, the Plaintiff's claim is in the order of $23,000. 3 The Plaintiff commenced proceedings in the Local Court in June 2004. There was an arbitration. The Plaintiff was unsuccessful. It applied for a rehearing. The rehearing took place before Johnson LCM. It involved four hearing days occupying the period between 22 April 2005 and 9 September 2005. Judgment was delivered on 10 October 2005. Again, the Plaintiff was unsuccessful. 4 On 9 November 2005, the Plaintiff filed a Summons in this Court. It seeks the setting aside of the decision of the Magistrate and the remitting of the matter to the Local Court for rehearing. 5 At relevant times, Mr O'Brien was an employee of Sydney Water and based at Winmalee. Some months prior to 7 March 2006, he spoke to a fellow employee (Mr Fitzpatrick). Mr Fitzpatrick had been a witness for the Plaintiff in the proceedings before the Magistrate. Following the conversation, Mr O'Brien received a telephone call from Mr Dogramaci. He is or was a principal of the Plaintiff. 6 Following that conversation, Mr O'Brien attended the offices of the solicitors for the Plaintiff. He provided them with material which led to the swearing of an affidavit on 7 March 2006. 7 Generally speaking, inter alia, the affidavit sets out the evidence that Mr O'Brien would have been able to give had he been called at the trial before the Magistrate. The evidence includes material relevant to the delivery of the gearboxes. One matter deposed to is his presence at the time of delivery. 8 The affidavit contains, inter alia, the following:- "17. Leading up to the proceedings in the Local Court commencing on 22 April 2005, I was suffering from hypertension, stress, different types of pain and a skin condition which also caused me considerable pain and prevented me from exposure to sun light. Annexed hereto and marked "C" is a copy of my doctor's report and letters on my condition and annexed hereto and marked "D" is photographs of my skin problems. … 21 It was not until February 2006 that I was able to attend the offices of the Plaintiff's solicitor." 9 On 22 March 2006, the Plaintiff filed a Notice of Motion in these proceedings. The application contains a claim for relief as follows:- "1. The Court receive further evidence of Mr William O'Brien as set out in the Affidavit of Marcel Joukhador upon the special grounds that the witness was of ill health and unable to give evidence at the trial or hearing of the hearing on the merits." 10 The application was heard on 23 June 2006. Both parties were represented by Counsel. The Plaintiff tendered two affidavits. One was the affidavit sworn by Mr O'Brien. The other was an affidavit sworn by Marcel Joukhador (the solicitor for the Plaintiff). Notice had been given for both deponents to attend for cross-examination. Mr O'Brien was cross-examined. Mr Joukhador failed to attend Court and as a consequence his affidavit ceased to be evidence in the application. The Defendant relied on two affidavits. One was sworn by Mr Heydon. The other was by Mr Lynch. They responded to the affidavit sworn by Mr O'Brien. Mr Heydon was present at the time of the December 2002 delivery. Mr Lynch was present at the time of the January 2003 delivery. These affidavits contain material that conflict with what has been deposed to by Mr O'Brien (including the matter of his presence at the time of delivery). 11 The relevant provisions have been considered to be contained in s 75A of the Supreme Court Act 1970 and Rule 46.16. They are similar. The latter provision deals with the conduct of an appeal. It reads as follows: "[r 46.16] Conduct of Appeal 46.16 (1) If the decision under appeal has been given after a hearing, the appeal is to be by way of rehearing. (2) the higher court has the powers and duties of the court, body or other person from whom the appeal is brought, including powers and duties concerning: (a) amendment, and (b) the drawing of inferences and the making of findings of fact, and (c) the assessment of damages and other money sums. (3) The higher court may receive further evidence. (4) Despite subrule (3), where the appeal is from a judgment after a trial or hearing on the merits, the higher court may not receive further evidence except on special grounds. (5) Subrule (4) does not apply to evidence concerning matters occurring after the trial or hearing. (6) The higher court may make any finding or assessment, give any judgment , make any order or give any direction which ought to have been given or made." 12 It was faintly asserted that subrule (5) had application in this case. In my view, such an assertion is erroneous. A distinction is drawn between "fresh evidence" (which relates to matters that occurred after the trial) and "further" evidence (which relates to matters that occurred before it, but were not adduced as evidence in the trial). The proposed evidence of Mr O'Brien is further evidence. In my view, the Plaintiff has to satisfy the requirement of subrule (4). 13 The Court has also been referred to a number of authorities (including Akins v National Australia Bank (1994) 34 NSWLR 155). It seems to be common ground that the court should have regard to what is stated in Akins at p 160. The test expounded therein is as follows:- "Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible." 14 If these three conditions do need to be met in each case, then I am of the view that they have not been satisfied in this case. 15 This test provides guidance. Each case will turn on its own particular facts. The concept of "special" involves that which is different from what is ordinary or usual. The colour of the exceptional has to be present. In my view, it was not intended that special grounds would exist merely because a party locates a material witness after a trial on the merits has taken place. 16 Where the plaintiff's application might be described as both novel and bold, it seems to me that the grounds upon which it is brought lack the special quality required by the rule. It also suffers from a paucity of supporting evidence. 17 I shall mention briefly my understanding of what are said to be the matters which give rise to special grounds. I say that guardedly because what was said to be the special grounds were never identified with any precision. The matters appear to include the following:- (1) Mr O'Brien was unfit to give evidence during the trial; (2) He is now able to give evidence and his evidence would be material to the Plaintiff's prospects of success; (3) He has come forward and of his own volition offered to give the evidence (4) The Plaintiff is a small company that has already incurred costs in the order of $55,000 to recover the sum claim. The mention of these matters is not intended to be exhaustive. 18 The principal issue before the Magistrate was a question of fact. He was required to determine how many gearboxes had been delivered by the Plaintiff to the sewerage plant. The Plaintiff called three witnesses (Mr Dogramaci and two Sydney Water employees). Mr Dogramaci was the person who effected the deliveries. In his evidence, he did not mention the presence of Mr O'Brien. The Magistrate was critical of the evidence given by Mr Dogramaci. The Magistrate took the view that the Plaintiff had the onus of proving delivery and that it failed to discharge that onus on the balance of probabilities. 19 It appears that sometime prior to April 2005, Mr Dogramaci asked Mr O'Brien to be a witness for the Plaintiff. He was told by Mr O'Brien that he was unable to provide information as to his involvement in the project and to appear at Court because of his then extreme bad health. 20 I put to one side the question of to what extent Mr O'Brien was incapacitated in respect of the task of assisting the Plaintiff and giving evidence on its behalf. This is a matter on which there is competing evidence. There is evidence that Mr O'Brien was working at times during the period of the conduct of the trial. 21 The evidence as to what was done to have Mr O'Brien's evidence produced at the trial is minimal. Mr Dogramaci could have been expected to have had some understanding as to the evidence that Mr O'Brien may have been able to give. All that was done to procure his evidence was an inquiry by Mr Dogramaci. It appears that the Plaintiff and its solicitors merely accepted what was said by Mr O'Brien and did nothing further to pursue the matter. No subpoena was served on Mr O'Brien. No application was made to the Court to delay the trial. It seems to me, that the Plaintiff elected to go to trial without his evidence. Indeed, it brought this appeal prior to being aware of his present position. 22 The affidavit of Mr O'Brien reveals that he may be able to give relevant evidence. The material reveals that such evidence may be in conflict with other evidence that either has been given or can be given (including that given by Mr Dogramaci). 23 There must be some reservation as to his fitness to give evidence either in this appeal or at a trial if confronted with vigorous cross-examination. He did not depose to fitness in his affidavit. He did appear in Court during this application and was subjected to limited cross-examination. However, evidence adduced in re-examination revealed that he suffers anxiety attacks on a daily basis. His appearance and evidence gave the impression that the question of his fitness may be a day-to-day proposition. 24 The amount in dispute is not large. The principal issue between the parties is a factual one. There has already been a lengthy trial to determine it. The costs incurred by the Plaintiff to date are grossly disproportionate to its claim. The costs may at least be doubled if there was to be a further trial. Such a trial could be expected to involve additional credibility issues. On what is before this Court, I am not satisfied that there is a reasonable prospect of such a trial producing a different result. 25 If relief was given in this case, there is the potential for the floodgates to open and for similar applications to be made whenever a losing party locates a helpful witness subsequent to the completion of a hearing. 26 It is in the public interest that there be finality in the disposition of disputes. The overloaded Court system cannot cope with indulgences to parties taking up valuable Court time over modest disputes requiring many hearing days. 27 The relief sought by the Plaintiff is a discretionary one. The Court has regard to the interests of justice in the exercise of that discretion. The onus is borne by the applicant. 28 I am not satisfied that special grounds have been shown. In my view, the Plaintiff has failed to discharge the onus of satisfying the Court that the discretion should be exercised in its favour. 29 The application fails. The Notice of Motion is dismissed. The Plaintiff is to pay the costs of the Notice of Motion. ********** 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.