Supreme Court New South Wales Medium Neutral Citation: Kuypers v Ashton Coal Operations Pty Ltd & Anor (No 6) [2015] NSWSC 1185 Hearing dates: 4, 5 August (Evidence on Commission); 7, 10 – 14, 17 – 18 August 2015 Date of orders: 18 August 2015 Decision date: 18 August 2015 Jurisdiction: Common Law Before: Campbell J Decision: Leave not granted for Mr McKinnon to give the evidence foreshadowed by Mr Harris Catchwords: PROCEDURE – civil – application for leave to ask questions in response evidence of plaintiff – where questions sought to be asked were not the subject of evidentiary statement of second defendant – modern case management practices Category: Procedural and other rulings Parties: Benjamin Kuypers (Plaintiff); Ashton Coal Operations Pty Ltd (First defendant); Silver City Drilling (NSW) Pty Ltd (Second defendant) Representation: Counsel: B. Dooley SC with M. Perry (Plaintiff); R.A. Cavanagh SC with Ms D.J. Dinkha (First defendant); A.R. Harris QC with I.D. Roberts SC and S.L.C. Flett (Second defendant) Solicitors: Taylor & Scott Lawyers (Plaintiff); Curwoods Lawyers (First defendant); Lee Legal Group (Second defendant) File Number(s): 2012/393861 revised extempore judgment 1. Mr Harris QC is seeking leave to ask questions of Mr McKinnon, who is the operations manager of the second defendant, about the cutting tool that was used to widen the conductor column on bore-hole 4, about which the plaintiff made complaints in his evidence. The proposed evidence includes evidence of possibly different tools that were used on bore-hole 3 and bore-hole 3A, as well as what Mr McKinnon makes of the condition of the tool as depicted in the photographs tendered in the plaintiff's case. Mr Dooley SC has objected to this evidence principally on the basis that it was not the subject of any evidentiary statement from the second defendant. 2. It is quite clear that the plaintiff has a strong view about the condition of this tool and that has been part of his case from the outset. He says it was inadequate to the task of effectively grinding into the bedrock that was encountered on bore-hole 4. 3. The purpose of the Court ordering parties to exchange evidential statements in accordance with modern case management practice is so that the opposing parties will know the nature of the evidence proposed to be led and what evidence they need marshal therefore in response to it. Whilst of course it is the plaintiff's case that the tool was inadequate, given the modern cards-on-the-table, rather than the former sportsman's, approach to litigation, which is now in heavy disrepute, it seems to me that Mr Dooley's objection is well-founded. 4. If there was to be an explanation about what happened at bore-hole 3 that was relevant to what happened at bore-hole 4, it should have been the subject of the evidential statements that have been exchanged. 5. Naturally the real question is what is in the interests of justice between the parties. But it seems to me that, given that we are now in the third week of the hearing, had an issue about the plaintiff's evidence been signalled at some earlier point in time, even at some point in time just before the hearing started, given the leeway that the parties were given in relation to just-in-time preparation, then I am satisfied that the plaintiff would have had an opportunity, now denied to him to check the evidence that is to be given by Mr McKinnon. 6. I did during the course of argument with counsel allow myself the luxury of observing it is going to be very hard for me to make a decision about the adequacy of the tool on the basis of lay evidence, given that no expert seems to have inspected the tool himself ‑ and they are all men ‑ at any time proximate to the plaintiff's accident. 7. However that may be, I think that Mr Dooley's objection is well taken and I will not give leave for Mr McKinnon to give the evidence foreshadowed by Mr Harris. ********** 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: 21 August 2015