AJ Lucas Operations Pty Ltd v CPW Trailer Sales and Repairs Pty Ltd

[2016] NSWSC 271

Supreme Court

New South Wales

Medium Neutral Citation:	AJ Lucas Operations Pty Ltd v CPW Trailer Sales & Repairs Pty Ltd [2016] NSWSC 271
Hearing dates:	26 February 2016
Date of orders:	26 February 2016
Decision date:	26 February 2016
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1) by consent, I grant leave for the giving of evidence by way of audiovisual link of Mr Shields (2) I adjourn the application in respect of Mr Shane Gaudin for hearing before Schmidt J at 9.30 am on Friday 26 February
Catchwords:	PROCEDURE – application for giving of evidence by way of audiovisual link – where witness is wanted for lengthy cross-examination – where notice not given of requirement of witness for cross-examination – where trial to begin the following week
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	AJ Lucas Operations Pty Ltd (Plaintiff) CPW Trailer Sales & Repairs Pty Ltd (1st Defendant) Coe Drilling Pty Ltd (2nd Defendant)
Representation:	Counsel: C Harris SC (Plaintiff) R J Burbidge QC (1st and 2nd Defendants) Solicitors: Bird & Bird (Plaintiff) Buchanan Legal (1st and 2nd Defendants)
File Number(s):	2011/142924

EX TEMPORE JUDGMENT - Revised

1. I have two applications for the taking of evidence from witnesses from overseas by audio-visual link. The applications are made by Mr Harris SC for the plaintiff. Mr Burbidge QC for the first and third defendants has no objection to evidence being taken by audiovisual link from a Mr Shields, who is currently in New Zealand and I have just pronounced an order permitting that to occur. Mr Burbidge does object to the evidence of Mr Shane Gaudin being taken by audio-visual link from Hong Kong.

2. Without going into any detail about the case, the plaintiff claims to have been the victim of a fraud by some of its own employees and officers and is suing the first and third defendants in for detinue or conversion in respect of expensive drilling pipes that were sold to it as part of a conspiracy by those officers and employees to profit themselves from that sale. Apparently the overall conspiracy was broader than that part of it which is the subject of these proceedings and on the evidence of Mr Mulcahy, solicitor, it is thought that, from the plaintiff’s point of view, Mr Gaudin’s evidence should be completed within about three hours. Mr Burbidge on the other hand says that Mr Gaudin is the principal player in the conspiracy and that his credit and character are very much in issue. He, in explaining the nature of the case of his clients, has estimated that it will be necessary to cross-examine Mr Gaudin very closely on at least one of the three volumes of material which have been served, or exchanged, by the parties. Depending on the level of co-operation of Mr Gaudin with the cross-examiner, this could take in excess of a day and perhaps the whole of two days. Mr Harris joins issue with this and submits that the cross-examination ought to be kept more strictly to the central issues and that part of the conspiracy involving Mr Burbidge’s clients. It should not be allowed to involve a searching, wide-range testing of Mr Gaudin’s part in the wider fraud and his credit and character.

3. It is my view that probably the cross-examination on documents should be facilitated by providing and ensuring that Mr Gaudin has the volume of the documents with him during the course of cross-examination. I am concerned, however, about the appropriateness of taking his evidence by audiovisual link if it is likely to be very extensive and occupy perhaps as much as two days.

4. The background to today’s application is that although the affidavit of Mr Gaudin had been served as long ago as October last year no notice under r 35.2 Uniform Civil Procedure Rules 2005 (NSW) that he was required for cross-examination was given until 15 February. Because of the absence of any notice of the necessity for him to be available for cross-examination he has not been, I apprehend, subpoenaed and nor have arrangements been made to bring him back to Australia to give testimony in person. His attendance having been requested at very short notice, he has indicated that he is commencing a new project in China next week and it would be very disruptive if it was necessary for him to come home to Australia to give evidence. I accept that not only would that be inconvenient to him but in all probability would affect the commercial interest of third parties.

5. Normally work commitments are a very unconvincing reason for not requiring a witness to attend, especially when one thinks of the public interest involved in making sure cases proceed when listed. But the background I have described makes Mr Gaudin’s position understandable and perhaps makes understandable the position of the plaintiff in not having secured by subpoena his attendance earlier. Those matters to my mind strongly favour taking his evidence by AVL as proposed.

6. The matter has been allocated for hearing by Schmidt J commencing on Monday. It seems to me that given the nature of the dispute between the parties concerning the length of time that Mr Gaudin’s evidence might occupy, the question of whether his evidence should be taken by audio-visual link is one which is better decided by the trial judge. Her Honour will have a better idea than me of how she proposes to manage the hearing. For those reasons somewhat reluctantly I will adjourn this part of the application for hearing before Schmidt J at 9.30 am on Friday.

7. I should record that, as part of the deeper background, it is apparent from what senior counsel for each party has told me that there are well developed matters potentially occurring off stage. That perhaps explains part of the reason that this application had to be made as late as today. Having said that I think it is legitimate for the plaintiff to be concerned, lest those developments do not come to fruition, that the matter is properly ready to commence on Monday.

8. I reserve the costs of today.

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Decision last updated: 17 March 2016