Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lane v Northern NSW Local Health District [2014] NSWCA 26 Hearing dates: 17 February 2014 Decision date: 17 February 2014 Before: Basten JA Decision: 1. Dismiss the notice of motion of 7 February 2014 filed on behalf of the appellants. 2. The costs of the motion are to be the respondents' costs in the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PRACTICE and PROCEDURE - appeal - application to adduce further evidence - leave not required where complaint is erroneous rejection of proffered evidence at trial - request for issue of subpoena rejected where appeal challenges the setting aside of subpoena before trial Legislation Cited: Supreme Court Act 1970 (NSW), s 75A Category: Interlocutory applications Parties: Deirdre May Lane (First Applicant) Elizabeth Helen Lane (Second Applicant) Northern NSW Local Health District (Respondent) Representation: Counsel: Applicants self-represented Mr R Sergi (Respondent) Solicitors: Applicants self-represented Curwoods Legal Services Pty Ltd (Respondent) File Number(s): CA 2013/54612 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-02-15 00:00:00 Before: Williams DCJ File Number(s): DC 2010/99555; DC 2010/99556 Judgment 1BASTEN JA: The Court has before it this afternoon an application by the appellants in proceedings presently pending in the Court which have a hearing date fixed for Friday week, that is 28 February 2014. The motion seeks leave for the appellants to adduce further evidence on the appeal. The proposed further evidence is in the form of both witness evidence and documentary evidence. 2The entitlement to tender further evidence is to be found in s 75A of the Supreme Court Act 1970 (NSW). Where there has been a trial, the appellants must demonstrate special circumstances in order to be able to call further evidence. The evidence that is sought to be called in this case is not what might be described as "fresh evidence", but it does fall within the category of "further evidence". That is, although the evidence was available at the time of the trial, it was not before the trial judge. 3There are three documents which are sought to be relied upon at the hearing of the appeal. First, a form of the Psychogeriatric Nurse Practitioner Clinical Guidelines for a particular person, Ms Anne Moehead, is sought to be tendered. Secondly, there is a newsletter of the New South Wales Department of Health dated 8 August 2006 which involves Ms Moehead. Thirdly, there is the full submission made by one of the appellants, Ms Deidre Lane, to the Special Commission of Inquiry into Acute Care in New South Wales Public Hospitals. All of those three documents or in the case of the last document, parts thereof, were rejected by the trial judge. In effect, there is a challenge to the rulings on evidence rejecting those documents. 4The hearing before this Court can proceed on the basis that there is a challenge to the rejection of that material. It either is, or can be made, available to the Court prior to the hearing of the appeal and it can be ruled upon by the Court in considering the grounds of appeal raised by the appellants. There is no need for a grant of leave to adduce that evidence. No such leave is normally required where there has been (at trial) what is said to be an inappropriate rejection of admissible evidence. 5It is a matter of importance though that the Court be advised of those reasons which were provided by the trial judge in rejecting the material and also an explanation as to how it is admissible within the terms of the Evidence Act 1995 (NSW). 6There is a second category of documentary material which is not presently in the hands of the parties, as I understand it, but involves medical records relating to Mr Leo Lane, the father of the appellants and the husband of the deceased, upon the events of whose last days the claim by the appellants is founded. The question is whether this Court should now issue a subpoena for those medical records so that they will be available to it in the event that there is an issue arising on the appeal as to whether they should have been admitted. 7The appellants say that the challenge to the rejection of the subpoena or part thereof is to be found within ground 11 of the notice of appeal. The ground does not specifically identify or cover that material and it will need to be amended to make clear that what is in fact challenged is a determination made by Chief Judge Blanch on 21 February 2012 in rejecting a passage in the schedule to the subpoena which he described as being issued to the Casino District Memorial Hospital but which the appellants suggest was directed to a different body although still a medical centre and which sought production of the medical records of Leo Thomas William Lane. 8The notice of appeal does not identify any error in the judgment of Blanch J. If it is sought to be challenged, the appellants will need to file an amended notice of appeal together with short submissions identifying where the error lay in the Chief Judge's reasons. They will also need to provide a copy of the subpoena which was under consideration by the Chief Judge. If those steps are taken, the issue as to the correctness of the rejection of the subpoena will be before the Court. 9The judgment of the Chief Judge appears in a black book which has been recently prepared and filed, Vol 1, p 37. It appears that the order made was based upon the terms of the subpoena and so much as was known to the Chief Judge as to the nature of the issues on the appeal. If that is correct and it was not based upon access to contents of the subpoenaed records, that is, it was not a refusal of an order for access to the subpoenaed records but a striking out of a paragraph of the subpoena, then there is no need for this Court to have access to the records in order to determine whether or not the Chief Judge was correct in his ruling. 10The records are also sought in part because they are relied upon or sought to be relied upon in order to ask some further questions of Mr Leo Lane. For reasons which I will indicate, this Court will not make orders requiring individual witnesses to be available to give evidence to this Court. Each of the witnesses who fell within the third element of the present motion are persons who were called to give evidence before the trial judge. They are Mr Lane and three medical officers, Drs Laird, Coupe and Pearson. Each of them gave evidence and the grounds of appeal which relate to their evidence are intended, although that is not entirely clear from the formulation of the grounds, to challenge rulings made by the trial judge with respect to either questions which were asked of witnesses or questions which were not asked because the trial judge did not permit the questioning to proceed further than it had. 11To the extent the questions were asked, this Court will be in a position to rule upon such of the challenges in the appellants' notice of appeal and their submissions as demonstrate that questions were inappropriately rejected and that some material prejudice was caused to the appellants' case by the rejection of the questions. 12To the extent that the witnesses were not asked particular questions, it will be necessary for the appellants to indicate what questions it had been proposed should be asked. The Court will then be in a position to determine whether as a matter of procedural fairness the questioning should have been allowed and whether, as a result of it not being allowed, the appeal has in some respect miscarried. 13The assumption underlying the notice of motion is that this Court would consider whatever evidence it was that these witnesses could have given but did not. That assumption is false and it is false for an important reason. The trial judge had the benefit of hearing a number of witnesses, including witnesses that would not be heard by this Court including the appellants themselves unless of course the Court were to rehear the whole trial. That is not the purpose of the appeal, nor is it the function of this Court. 14If it is determined that the trial has miscarried in respect of evidence which was not before the trial judge because he did not allow it to be led, then it will be necessary for there to be a retrial, at which stage that evidence may be tendered and the judge who hears such a retrial, would then be in a position to assess how that evidence should be dealt with having regard to all of the evidence before the judge on the retrial. 15Accordingly, I do not propose to order that any of the witnesses be available to give evidence in this Court. I do not propose to order that the medical records of Mr Leo Lane be subpoenaed. I presume that the form of the notice of motion (being slightly different) was intended to request the Court issue to a subpoena to obtain those records since they are not in the possession of the parties. 16The documents which are sought to be relied upon at trial, which it is said were wrongly rejected, should be put before the Court at the hearing of the appeal and they will be dealt with on the basis that there is some ground which challenges their rejection. 17There is no order sought within the motion which should be made at this time. Having indicated why that is so, it is sufficient to dismiss the notice of motion. The Court therefore dismisses the notice of motion dated 7 February 2014 filed on behalf of the appellants. Counsel for the respondent has sought an order that it have the costs of the motion before the Court today. I order that the costs of the motion be the respondent's costs in the appeal. ********** 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. Decision last updated: 24 February 2014