Big Country Developments Pty Limited v Peter Griffiths (No 2)

[2015] NSWSC 436

Supreme Court

New South Wales

Case Name:	Big Country Developments Pty Limited v Peter Griffiths (No 2)
Medium Neutral Citation:	[2015] NSWSC 436
Hearing Date(s):	15 April 2015
Date of Orders:	15 April 2015
Decision Date:	15 April 2015
Jurisdiction:	Equity Division - Commercial List
Before:	Kunc J
Decision:	Further application for audio-visual evidence rejected
Catchwords:	EVIDENCE – Affidavit evidence – Further application for cross-examination by audio-visual link – UCPR Pt 31 r 31.3
Legislation Cited:	Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Uniform Civil Procedure Rules Pt 31(r) 31.3
Cases Cited:	Big Country Developments Pty Ltd v Peter Griffiths [2015] NSWSC 414
Category:	Procedural and other rulings
Parties:	Big Country Developments Pty Limited ACN 000 235 923 (Plaintiff) Adrian Stewart Duncan (Fourth Defendant)
Representation:	Counsel: J. Horowitz (Plaintiff) J. Baird (Fourth Defendant) Solicitors: Denes Ebner Lawyers (Plaintiff) Smith Leonard Fahey Lawyers (Fourth Defendant)
File Number(s):	2011/404546
Publication Restriction:	No

EX TEMPORE JUDGMENT

Summary

1. HIS HONOUR: On last Monday, the first day of this hearing, I dealt with an application made on behalf of Mr Duncan, the fourth defendant, to order pursuant to UCPR Pt 31(r) 31.3, that the cross‑examination of Christopher Colin White to be taken by audio-visual link from London. I rejected that application: Big Country Developments Pty Ltd v Peter Griffiths [2015] NSWSC 414. These reasons should be read with that judgment.

2. Since making that decision the hearing has proceeded and, subject to the application with which I am now dealing, the evidence has concluded. The estimate given for these proceedings was two to three days. Today is the third day and it is now 2.55pm. I have had some discussion with counsel as to whether the matter should proceed for submissions to begin this afternoon and to continue into tomorrow or whether it would be better to adjourn the proceedings to some date next week to enable each side to prepare written submissions. No decision has yet been made about that. In the course of closing his client’s case, Mr Baird of Counsel, who appears for Mr Duncan, has renewed the application for Mr White’s evidence to be taken by audio-visual link.

3. Insofar as the evidence on the application is concerned, two things have changed since Monday. First, I have admitted into evidence a medical certificate dated 14 April 2015 signed by a doctor in Colchester in the United Kingdom in relation to Mr White. No objection was taken to the tender of that medical certificate on this application. The certificate discloses that Dr K Abeysundara assessed Mr White on 14 April 2015 and because of “Musculoskeletal pains following fall from a bicycle, underlying Parkinson’s disease and chronic back and neck pains,” advises that Mr White is, “Not fit for work.”

4. There is a further section under “comments” setting out:

   … functional effects of your condition:

   (1) Musculoskeletal pains;

   (2) Has had the pains for 2 days;

   (3) He cannot travel at present due to severe pains;

   (4) No particular risks but unable due to severe pains;

   (5) How long difficult to say. Maybe for a month.

5. The other thing that has changed is that email evidence has been tendered, again without objection, suggesting that arrangements have been put in place whereby, at least from the London end of things, Mr White's evidence could be taken this afternoon at around 5pm Sydney time (8am London time).

6. I will assume for the purposes of these reasons that if I were to make the order, the examination could take also place this afternoon in terms of the appropriate equipment being available here in the Court.

7. Mr Baird submits that these two pieces of evidence overcome what were earlier difficulties that stood in the way of the success of this application when it was first made two days ago. He also submits that his client is suffering particular prejudice for the following reason. The key point of Mr White's evidence is his account of a telephone conversation which he allegedly had with Mr Hesky of the plaintiff on 7 March 2008. That conversation is hotly denied.

8. Evidence has been given by another witness, Ms Edwards, who was present with Mr White when Mr White had the telephone conversation to which he deposes in his affidavit. Ms Edwards has given, and I have had recorded on the transcript, her evidence of what she heard Mr White say. That evidence has been excluded as hearsay, notwithstanding an application that I allow it on the basis of s 63 of the Evidence Act 1995 (NSW). I took the view that Mr White was not "not available to give evidence" having regard to the definition of availability in the dictionary section of the Evidence Act, notwithstanding Mr Baird’s efforts to persuade me to the contrary. Mr Baird submits that there is now real prejudice to his client in that having excluded Ms Edwards' evidence on the basis of it being hearsay, Mr White's affidavit is the only way that evidence of the telephone conversation can be adduced on behalf of his client.

9. Mr Horowitz of Counsel, who appears for the plaintiff, submits that the latest evidence doesn't change anything. I do not agree. I do now at least have some proper evidence of a medical condition and evidence that Mr White’s evidence can be taken by audio-visual link today.

10. Mr Horowitz also submits that the application is "too little, too late." In support of that proposition Mr Horowitz submits that he has made forensic decisions in relation to how he has conducted his case, including who he has and has not cross-examined and what other evidence he has called, on the basis that Mr White would not be giving evidence in the proceedings. As I am now aware of the contents of the various affidavits that have been filed (including what was not read) and have heard the whole of the other evidence. Mr Horowitz's submission is plainly correct. The Court accepts that he has made forensic decisions in the conduct of his client's case upon the basis that Mr White would not be giving evidence.

11. Any order I make under the rules must be made in accordance with and to further the overriding objective set out in s 56 Civil Procedure Act 2005 (NSW), namely the just, quick and cheap resolution of the real matters in dispute between the parties. Having regard to that requirement, I refuse the application for these reasons.

12. First, it would be prejudicial to the plaintiff in the light of the forensic decisions that have been made to allow Mr White to give evidence at this late stage of the proceedings. That prejudice could not be undone in a way consistent with the overriding purpose by allowing the case to be reopened so that the plaintiff would have to reshape its evidence or the way in which it conducted the matter by reference to the fact that Mr White's evidence was now going to be before the Court. In any case, to do so would inevitably increase the hearing length by at least another day or more. I make that estimate on the basis of my own knowledge now of the issues in the case and the way in which it has been conducted, including the time it has taken already. In saying that I am not being critical of anyone and I am certainly not suggesting that time has been wasted. Nevertheless, to try to unscramble the egg now (if that can be done at all, which I seriously doubt) will take, in my view, at least a day, if not more, of additional court time.

13. Second, the additional evidence and what Mr Baird calls the further prejudice which his client suffers (and which, for present purposes, I will assume is such prejudice), does not overcome a very significant factor in applications of this kind that was also a matter of considerable significance in my earlier decision. That is the disadvantage to a cross-examiner in having to cross-examine via audio-visual link. As I observed in para [20] of my earlier reasons, there is generally thought to be (and it is reflected in my own experience) a real disadvantage in cross‑examining witnesses by audio-visual link where credit is seriously in issue and the subject matter of the evidence is of central importance to the litigation.

14. As things have developed, I am no longer so sure that any of this evidence is ultimately going to be of such importance to the outcome of the litigation but, again, for the purposes of this application I will accept what Mr Baird has put to me that this is crucial evidence for his case. On that basis it must also be a very important piece of evidence for the plaintiff's case. Nothing has been advanced by Mr Baird that changes my mind in relation to the disadvantage of cross-examining Mr White on this assumedly very important point by audio-visual link.

15. Third, the application is made at the last possible stage of the proceedings. Subject to the question of when and how final submissions are to be heard, the proceedings are at an end and all other witnesses have been called, cross-examined and excused. The application is now too late having regard to the just, cheap and quick resolution of these proceedings. That lateness is itself compounded by the problem to which I have referred in paragraph [12] above that were I to allow the evidence to be given, then the length of these proceedings would be materially extended.

16. For these reasons the renewed application to take Mr White's evidence via audio-visual link is refused.

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