FEDERAL COURT OF AUSTRALIA

Clifford v Vegas Enterprises Pty Ltd (No 4) [2010] FCA 326

THE COURT ORDERS THAT:

1.         The first respondent have leave to call Mark Sutton as a witness in this proceeding and to rely on his witness statement annexed to the affidavit of Benjamin Dean Luscombe made 31 March 2010.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                          Soon after the commencement of the trial in this proceeding, the first respondent indicated that it wished to rely on the statement of evidence of a witness, Mark Sutton, which had not previously been served and filed in statement form in accordance with the pre‑trial directions of the Court.  Counsel for the applicant objected to the first respondent’s proposed reliance on the late tendered witness statement.

2                          At the conclusion of the applicant’s case, senior counsel for the first respondent, having cross‑examined the applicant on matters dealt with in Mr Sutton’s draft witness statement, formally moved for leave to rely on the witness statement and to call Mr Sutton as a witness in the proceeding on behalf of the first respondent.  The applicant maintained his objection to this course.

3                          Senior counsel for the first respondent contends that this is a case in which the Court should exercise its discretion to let in the evidence in the interests of justice, noting in brief that:

·          No pleading issues are raised, merely evidentiary ones.

·          There is no prejudice to the applicant in the course proposed as the facts dealt with in the proposed evidence of Mr Sutton had been the subject of cross‑examination of the applicant and are in dispute.

·          The evidence was not earlier notified through oversight, not by reason of a deliberate tactical or strategic decision.

·          Only the respondents will be prejudiced by not being able to call Mr Sutton.

4                          Counsel for the applicant in response resists the late tender having regard to:

·          Lack of proper explanation on behalf of the first respondent for the late production of the witness statement.

·          The collateral nature of the attack on the applicant’s evidence.

·          Case management principles – it is simply too late in the day to produce the witness having regard to the Court’s earlier pre‑trial directions.  Counsel particularly relies on the authority and facts of the Attorney‑General of Botswana v Aussie Diamond Products Pty Ltd (No 2) [2009] WASC 301 (Attorney‑General of Botswana).

5                          In my view, leave to the first respondent to rely on the witness statement of Mr Sutton and to call Mr Sutton should be granted.

6                          An explanation for the failure to earlier provide the witness statement has been given by senior counsel from the bar table and confirmed by an affidavit of Benjamin Dean Luscombe, the solicitor for the first respondent.  The failure to proof Mr Sutton on the issue of shareholders’ loans and calls made upon him as a shareholder and alleged discussions with the applicant in that regard are said to have occurred through oversight.  I accept that there has been no deliberate tactical or strategic decision taken on behalf of the first respondent to not earlier call Mr Sutton.

7                          The matters the subject of Mr Sutton’s proposed evidence plainly go to a matter in issue and the applicant has been cross‑examined closely in relation to those matters.

8                          There is no need in this case for the pleadings to be amended.  The issue is entirely an evidentiary one.  There is no forensic disadvantage to the applicant save that the full circumstances concerning whatever discussions took place between him and Mr Sutton will now be the subject of evidence.  The applicant has been on notice of the allegations made in Mr Sutton’s witness statement from early on in the trial.  As noted, he has been cross‑examined on them.

9                          This is a case in which, if leave were not granted, the Court would be seen to have acted with a degree of artificiality in that it would be determining evidentiary matters without the parties having had the full opportunity to adduce all evidence relating to the issue.  In my view, that would be an unjust course to take in this particular case.  No clear prejudice to the applicant is demonstrated. 

10                        This is not a case where case management principles dictate the refusal of the leave application.  Section 37M has recently been introduced into the Federal Court of Australia Act 1976 (Cth) (FCA).  Subsection (1) provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the “just resolution of disputes according to law” and to do so “as quickly, inexpensively and efficiently as possible”.  Subsection (2) sets out a number of objectives including the “just determination of all proceedings before the Court”, the efficient use of resources, the efficient disposal of case load and the disposal of all proceedings in a timely manner.

11                        The significance of overarching principles in case management have been illustrated by such recent decisions as that of the High Court of Australia in Aon Risk Services Australia Ltd v Australia National University [2009] HCA 27; 239 CLR 175 and Attorney‑General of Botswana, the decision relied upon by the applicant and referred to above.  Each of these cases involved proposed a significant redirection in the formulated case of the moving party following lengthy programming periods that were likely to cause serious disruption to the listed trial.  Adjournments would have been inevitable to do justice to the interests of the other party in the circumstances of the case if the redirection were permitted.  Real prejudice to the other litigant and the use of public resources were indicated in each case.

12                        However, in my view, the case management objectives identified in s 37M of the FCA will not be disregarded in this case by allowing the first respondent to call Mr Sutton.  As noted above, no pleading changes are necessary.  The evidence goes to an existing evidentiary issue of which the applicant has been on notice for over a week during the course of the trial.  No adjournment of the trial is required.  Resources are not put at risk.

13                        More importantly, however, from my point of view, taking into account all of these factors, is that while there is no doubt that the first respondent should, in the ordinary course, have put on a witness statement of Mr Sutton at an earlier time, in compliance with the Court’s directions, it would not in fact serve the just resolution of this dispute to deny the first respondent the opportunity now to call Mr Sutton to give evidence on the evidentiary issue in question.  As noted above, it would involve a degree of artificiality to resolve that issue without providing the first respondent with the opportunity to call Mr Sutton.

14                        I would therefore order that:

1.         The first respondent have leave to call Mark Sutton as a witness in this proceeding and to rely on his witness statement annexed to the affidavit of Benjamin Dean Luscombe made 31 March 2010.

Associate:

Dated:  1 April 2010