AF&L First Mortgages Ltd - v - Owens

[2014] VCC 1191

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted

COMMERCIAL LIST
EXPEDITED DIVISION

Case No. CI-13-01597

AF&L FIRST MORTGAGES LTD (ACN 123 219 732)	Plaintiff
V
SUZANN OWENS	Defendant

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JUDGE:	HER HONOUR JUDGE KENNEDY
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2014
DATE OF RULING:	5 June 2014
CASE MAY BE CITED AS:	AF&L First Mortgages Ltd – v – Owens
MEDIUM NEUTRAL CITATION:	[2014] VCC 1191

REASONS FOR RULING
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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Arthur	Mackinnon Jacobs Lawyers
For the Defendants	S. Owens (in person)	------

HER HONOUR:

1. The defendant has objected to the calling of Mr Paul Scerri as a witness in the case on the basis that he has not previously filed an affidavit.  It is anticipated that his evidence would be given later today.

2. I have determined that it is not appropriate to uphold the objection of the defendant.  My reasons are in brief and I reserve the right to revise those reasons.

3. Firstly, although the orders of 4 April 2014 provided that affidavits filed to date would stand as examination‑in‑chief, and that the parties had leave to file further affidavits on which they relied, these orders were made on the return date of a summary judgment application and did not in their terms preclude viva voce evidence. Pursuant to Order 40.02 of the County Court Civil Procedure Rules 2008 evidence at a trial of a proceeding shall be given orally. In such circumstances, it appears that the plaintiff does not in fact require leave to call oral evidence.

4. Secondly, and even if leave is required,  I had taken the step of indicating to counsel for the plaintiff that it would be appropriate, if Mr Scerri was called, for an outline of his evidence to be produced.  That has been produced now and it appears, on the basis of that outline, that the evidence that is proposed to be called is unlikely to take the defendant by surprise since it essentially documents objective evidence that the defendant is already apprised of. 

5. Thirdly, I consider, having regard to the way the case is unfolding, that the potential prejudice to the plaintiff in preventing the adducing of the evidence would outweigh any prejudice to the defendant. 

6. In saying that, I have taken into account a number of matters including, firstly, that Mr Scerri is, in fact, a member of the credit committee responsible for undertaking the suitability assessments which are the subject of a primary issue for consideration in this case.  Secondly, it appeared in the course of cross‑examination yesterday, that there may be a suggestion of conversations having occurred between Mr Scerri and the defendant which it would be appropriate be put to him.

7. Having regard to all of the circumstances, then, I consider that it is in the interests of justice to allow Mr Scerri to give oral evidence.  I consider that any prejudice to the defendant is to be managed in the way I have already outlined: that is, by the production to her of a copy of the outline which I have given her time to read.  Further, I will ensure that she has adequate time to prepare her cross‑examination of Mr Scerri and will give the defendant a further  opportunity to be heard as to whether she has had adequate time to prepare.

8. The plaintiff has leave (to the extent it is necessary) to call Mr Scerri to give oral evidence.