A Class Piling & Drilling Pty Limited v Seventy Eight Promotions Pty Limited (No 1)

[2024] NSWDC 309

District Court

New South Wales

Medium Neutral Citation:	A Class Piling & Drilling Pty Limited v Seventy Eight Promotions Pty Limited (No 1) [2024] NSWDC 309
Hearing dates:	21 February 2024
Date of orders:	21 February 2024
Decision date:	21 February 2024
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	I admit the evidence.
Catchwords:	EVIDENCE – SERVED AFTER TIME - Objection taken to affidavit served out of time – Whether to admit where no reasonable excuse provided – Whether any prejudice to defence.
Legislation Cited:	Nil.
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Procedural rulings
Parties:	Plaintiff – A Class Piling & Drilling Pty Limited Defendant – Seventy Eight Promotions Pty Limited
Representation:	Counsel: Plaintiff – Young, J. Defendant – Street, C. Solicitors: Plaintiff – Moray & Agnew Defendant – HWL Ebsworth Lawyers
File Number(s):	2023/00103136
Publication restriction:	Nil.

Judgment

Admission of an Affidavit Sworn on 26 January 2024

1. HIS HONOUR: Objection is taken by the defendant to the admission of the whole of the affidavit of Shannon Lee Baker sworn 26 January 2024. Prior to the listing of the matter for hearing today, the matter has been dealt with by the Judicial Registrar. On 15 May 2023 the Judicial Registrar sitting in the Online Court ordered that the plaintiff serve its affidavit evidence by 30 June 2023. The plaintiff was also ordered to serve expert liability evidence and expert evidence as to quantum by the same date. The defendant was required to serve its affidavit evidence, if any, by 25 August 2023 and to serve its expert evidence as to liability and quantum by the same day. The plaintiff was to serve any affidavit or expert evidence on liability or quantum in reply by 24 September 2023.

2. The matter was next before the Judicial Registrar on 10 October 2023 when he listed it for further directions on 25 October 2023. On that day the Judicial Registrar fixed to the hearing date of today with an estimate of two days and ordered that the parties participate in a private mediation or informal settlement conference by 20 October 2023. The Judicial Registrar also made an order fixing the standard orders for hearing.

3. Inter alia, cl. 14 of the standard orders for hearing is this:

“Subject to ss 56-60 of the Civil Procedure Act, hearings will only be vacated or adjourned where there is a very good reason. This must be demonstrated by the party seeking the vacation or adjournment. The unavailability of counsel, or failure to comply with Court orders or to properly prepare the matter for hearing, will normally not be sufficient reasons.”

The inference that must be drawn from that is that a failure to comply with an earlier Court order is insufficient grounds for adjourning a matter.

4. Here the affidavit of Shannon Lee Baker of 26 January 2024, which I have marked conditionally exhibit B, was sworn well after 30 June 2023 and well after the further two dates in which the matter was dealt with by the Judicial Registrar and well after the date appointed for an informal mediation or informal settlement conference. Furthermore, the affidavit of Mr Baker now in question contains matter which could have been included in his earlier affidavit, being material that refers to events that happened in 2018 and August 2022 and between September and October 2022.

5. However, the defendant can point to no prejudice and the defendant is in a position to meet the evidence contained in this affidavit. There are many reasons why evidence of the nature now in question might be put on, mainly because the advent of counsel into a matter may lead to an advice on evidence which may point to deficiencies in the evidence which need to be tidied up, or exchanges between the parties in an attempt to settle the matter may raise attention to similar defects in the evidence, as might an informal settlement conference or the like.

6. Although a party should comply with the Court orders and put on the whole of the relevant evidence by the due date, that really is a requirement of perfection and even very experienced lawyers can sometimes overlook some important matters.

7. However, because the defendant can point to no prejudice befalling it because of this further evidence I shall admit the evidence. However, the costs of preparing, swearing and serving the affidavit of 26 January 2024 must be borne by the plaintiff itself.

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Decision last updated: 24 July 2024