Corrigan v Coles Supermarkets Australia Ltd [2017] NSWDC 95

District Court New South Wales

Medium Neutral Citation: Corrigan v Coles Supermarkets Australia Ltd [2017] NSWDC 95 Hearing dates: 1 May 2017 Date of orders: 01 May 2017 Decision date: 01 May 2017 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Grant leave to the plaintiff to reopen his case to call Muriel Corrigan. (2) Reserve any question of the costs of the application. Catchwords: PRACTICE AND PROCEDURE – application to reopen following conclusion of defendant's submissions – witness ill during trial – evidence as to damages Legislation Cited: Civil Procedure Act 2005, s 56 Cases Cited: Matthews v SPI Electricity Pty Ltd (Ruling No 28) [2013] VSC 523 Smith v New South Wales Bar Association (1992) 176 CLR 256 Category: Principal judgment Parties: Michael James Corrigan (plaintiff) Coles Supermarkets Australia Ltd (defendant) Representation: Counsel: Mr S Roulstone (plaintiff) Mr D Priestley (defendant)

Solicitors: LHD Lawyers (plaintiff) McCulloch and Buggy (defendant) File Number(s): 2016/60944 Publication restriction: None

Judgment 1. This matter comes before me on the fifth day of trial during the plaintiff's closing submissions. The defendant, Coles, has concluded its closing submissions. The plaintiff, Michael Corrigan, makes an application to reopen his case to call his mother, Muriel Corrigan, to give evidence concerning Mr Corrigan's need for care and level of disability. 2. The short answer as to why Mrs Corrigan was not called earlier is her recent ill-health. The evidence on the application did not reveal why no earlier attempt was made to put Mrs Corrigan's evidence before the Court in another form, for example, by way of affidavit or by video link. There was also no evidence from Mr Corrigan to deny an inference that Mrs Corrigan had been pressed over the weekend to give evidence because of the submissions made by Coles about the lack of corroboration of Mr Corrigan's evidence concerning his need for care and his level of disability. 3. The anticipated evidence of Mrs Corrigan is accepted by Coles to be relevant. As Coles called no direct evidence on damages, it seems unlikely that Coles could have maintained any objection to Mrs Corrigan's evidence had she been called prior to Coles' submissions, a matter Coles conceded. 4. Bearing in mind decisions such as Smith v New South Wales Bar Association (1992) 176 CLR 256 and Matthews v SPI Electricity Pty Ltd (Ruling No 28) [2013] VSC 523, the issue of a grant of leave to reopen at this stage of the proceedings appears to involve a comparison between the prejudice to Coles by this evidence coming after, being informed by, and probably requiring a change in, Coles' submissions about the evidence concerning Mr Corrigan's need for care and level of disability, as against the interests of justice in the Court having before it all probative evidence on an issue of importance. 5. In my view, the prejudice that is occasioned to Coles can largely be cured by it having another opportunity to make submissions and some time to consider what, if any, changes need to be made to those submissions. The circumstance that Mr Corrigan has been informed by Coles' submissions is not something that can be cured directly. But, on balance, I do not see it to be of such significance that it should preclude the reception of relevant evidence. 6. Accordingly, given the shortness of the time delay in calling Mrs Corrigan, her evidence of ill-health that explains the delay, the fact that closing submissions have not yet concluded, that, in my view, the only real prejudice is that some of Coles' submissions may become obsolete by reason of this new evidence, and because of the capacity I have to make further directions to mitigate any prejudice, I am of the view that the overriding purpose in s 56 of the Civil Procedure Act 2005 of a quick, cheap and just determination of the real issues in these proceedings is best served by the granting of leave to Mr Corrigan to reopen and call Mrs Corrigan. This ruling should not be taken as any indication that a party will readily be relieved from the adverse consequences of their own forensic decisions. 7. I will reserve the costs of the application. 8. The orders of the Court are: 1. Grant leave to the plaintiff to reopen his case to call Muriel Corrigan. 2. Reserve any question of the costs of the application.