Fogg v Kane Constructions (NSW) Pty Limited and Anor; Fogg v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) (No. 2) [2014] NSWSC 1820

Fogg v Kane Constructions (NSW) Pty Limited and Anor; Fogg v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) (No. 2) [2014] NSWSC 1820

Although the Plaintiff's solicitors had not acted with appropriate diligence after locating Mr Cady and most case-management considerations weighed strongly against the Plaintiff, the dictates of justice did not justify shutting out Mr Cady's evidence. His evidence was capable of bearing significantly on disputed events at the Kiama Showground work site, Hutchison's liability witnesses had not yet been called, and the remaining hearing could be managed to address prejudice and timetable concerns, with costs consequences reserved.

Jurisdiction
Australia
Judgment Date
03 February 2014
Procedural Posture
Claim for Damages for Personal Injury / Contested Notice of Motion by the Plaintiff in a Part Heard Proceeding for Leave to Reopen His Case to Call Further Evidence
Outcome
Application allowed; costs reserved.
Legal Topics
['application to Reopen Case' 'calling Further Witness' 'case Management' 'civil Procedure Act 2005' 'costs Reserved']
['practice and Procedure' 'personal Injury'] ['application to Reopen Case' 'calling Further Witness' 'case Management' 'civil Procedure Act 2005' 'costs Reserved']

Case Brief

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Procedural Posture

Claim for Damages for Personal Injury / Contested Notice of Motion by the Plaintiff in a Part Heard Proceeding for Leave to Reopen His Case to Call Further Evidence

Legal Issues

  1. 1 ['Whether the Plaintiff should be granted leave to reopen his case to call the evidence of Robert Jason Cady after the Plaintiff had closed his factual case.' "Whether the dictates of justice outweighed the Plaintiff's lack of diligence and case-management concerns arising from late disclosure of the witness and statement." 'Whether any prejudice to the Defendants and disruption to the hearing timetable could be managed.']

Ratio Decidendi

Although the Plaintiff's solicitors had not acted with appropriate diligence after locating Mr Cady and most case-management considerations weighed strongly against the Plaintiff, the dictates of justice did not justify shutting out Mr Cady's evidence. His evidence was capable of bearing significantly on disputed events at the Kiama Showground work site, Hutchison's liability witnesses had not yet been called, and the remaining hearing could be managed to address prejudice and timetable concerns, with costs consequences reserved.

Court Disposition

Application allowed; costs reserved.

Orders

  • ['The Plaintiff is granted leave to reopen his case to call the evidence of Robert Jason Cady.' 'The Plaintiff is granted leave to serve and rely on the evidentiary statement of Robert Jason Cady dated 3 February 2014.' 'Costs of application reserved.']