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

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.
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.
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.”
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWSC 436
Decision Date: 15 April 2015

CaseChat Overview and Summary

The case of Big Country Developments Pty Limited v Peter Griffiths (No 2) involved a dispute where the plaintiff sought leave to cross-examine a witness by audio-visual link. The plaintiff, an Australian property developer, sought to question the defendant, a former employee, who had provided sworn evidence in the form of an affidavit. The matter was heard in the Supreme Court of New South Wales, which had earlier considered a similar application by the plaintiff.

The legal issues before the court centred on the interpretation and application of UCPR Pt 31 r 31.3, which governs the use of audio-visual links for cross-examination in civil proceedings. Specifically, the court had to determine whether the plaintiff had demonstrated a sufficient justification for the use of this method, considering the principles of fairness and the right to a proper and effective cross-examination. The court also needed to consider the implications of the witness's affidavit, which had been sworn under the same legal obligations as if given in court.

In reaching its decision, the court considered the nature and content of the affidavit, the relevance of the witness's evidence to the case, and the potential impact of the proposed audio-visual link on the fairness and effectiveness of the cross-examination. The court found that the plaintiff had not shown sufficient justification for the use of an audio-visual link, as the witness's affidavit did not contain complex or technical matters that would require a visual component for proper understanding. The court emphasised the importance of adhering to the principles of fairness and the right to a proper cross-examination, which could be adequately achieved through written questions and answers. Consequently, the court dismissed the plaintiff's application for leave to cross-examine by audio-visual link.

The court's final orders reflected its decision, denying the plaintiff's application and reiterating the importance of adhering to the rules of procedure and the principles of fairness in civil litigation.

Orders