Implications of not complying with an obligation of disclosure
Francis v MSF Sugar Limited  QSC 16 highlights the absolute requirement for parties to comply with their obligations of disclosure in civil proceedings.
This is a decision on an application for an adjournment made by the defendant on the morning of the second day of a four-day trial.
On the first day of the trial at approximately 10.30am, proceedings were adjourned due to late disclosure of a document from the defendant’s records.
That document contained a record of what the defendant was told by the plaintiff on the day he suffered the alleged injury and demonstrated that a substantial amount of the defendant’s defence was factually untrue.
An adjournment was granted on the first day of the trial to allow the plaintiff time to consider the disclosed document and urgently prepare an amended statement of claim and trial plan. Leave was given for the amended statement of claim to be filed on the second day of the trial.
The defendant then sought an adjournment of the trial for an unspecified period to enable it to consider the evidence the plaintiff intended to call from its medical expert witnesses in respect of allegations contained in two additional paragraphs in the amended statement of claim.
The defendant submitted that the plaintiff’s present expert medical evidence was not consistent with the allegations contained in the amended statement of claim. It also apprehended the plaintiff’s expert evidence would be different at trial and did not want to be taken by surprise as to the effect of that evidence.
Justice Bradley considered an adjournment to allow the defendant additional time to prepare itself for the anticipated medical evidence was not justified as the circumstances in which the adjournment is sought, was “entirely of the defendant’s making”.
In relation to the defendant’s submissions that it may be taken by surprise, Justice Bradley observed that:
The information was at all times available to the defendant because it derived from a document in its own records ; and
The defendant could have obtained further information about this fact at any time during the six year period from the date of injury to preparing for trial.
His Honour decided the defendant could not proceed on the basis of its present defence as much of it appeared to be false and agitated matters that no properly considered defence would include. The defendant was given until 2.30pm that day to provide an amended defence.
The defendant’s application for an adjournment of the trial was refused and the defendant was ordered to pay the plaintiff’s costs of the first day of the hearing and the adjournment application on an indemnity basis.