Built Pty Ltd v C and L Ceilings Pty Ltd - [2019] WADC 52

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   BUILT PTY LTD -v- C & L CEILINGS PTY LTD [2019] WADC 52
CORAM:   DAVIS DCJ
HEARD:   29 MARCH 2019
DELIVERED          :   12 APRIL 2019
FILE NO/S:   CIV 985 of 2018
BETWEEN:   BUILT PTY LTD
Plaintiff
AND
C & L CEILINGS PTY LTD
Defendant
C & L CEILINGS PTY LTD
Plaintiff by counterclaim
BUILT PTY LTD
Defendant by counterclaim

Catchwords:

Civil procedure - Case management - Whether witness outlines should be ordered

Legislation:

District Court Rules 2005 (WA), r 24
Supreme Court of Western Australia Consolidated Practice Direction,
Direction 4.5

Result:

Application for order for witness outlines dismissed

Representation:

Counsel:

Plaintiff	:	Mr T J Palmer
Defendant	:	Mr S C M Wong
Plaintiff by counterclaim	:	Mr S C M Wong
Defendant by counterclaim	:	Mr T J Palmer

Solicitors:

Plaintiff	:	Hotchkin Hanly
Defendant	:	Hopgoodganim Lawyers (Perth)
Plaintiff by counterclaim	:	Hopgoodganim Lawyers (Perth)
Defendant by counterclaim	:	Hotchkin Hanly

Case(s) referred to in decision(s):

Cristovao v Butcher Paull & Calder [2008] WADC 49
Fox Entertainment Precinct Pty Ltd v Centennial Park and Moore Park Trust [2004] NSWSC 214
Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336
Mincode Pty Ltd v Isa Pty Ltd (1996) 17 WAR 245
QBE Insurance (Australia) Ltd v Coffey [2015] WADC 110 (S)

DAVIS DCJ:

This action has been listed for trial commencing 29 July 2019.
Before then, I have been asked to resolve a matter of case management, and that is whether or not to order that the parties exchange witness outlines before the trial.
The exchange of witness outlines is a new procedure introduced in the Supreme Court by amendments to the Supreme Court of Western Australia Consolidated Practice Direction (CPD), Direction 4.5, effective from 1 February 2009. As explained in a notice to practitioners dated 29 January 2019, where the standard case management directions for civil actions in the Supreme Court once provided that witness statements were to be exchanged prior to trial and stand as the witness' evidence‑in‑chief, written statements as evidence‑in‑chief are now to be the exception rather than the rule. This is because, as the notice to practitioners has frankly stated:
While the use of witness statements … is intended to promote the efficient and just determination of civil disputes, in practice their use has not always met those objectives.
The CPD Direction 4.5 has been amended to now provide that, ordinarily, evidence‑in‑chief at trial will be given orally, without the use of witness statements, but that there will be orders made for the exchange of witness outlines. The procedures are set out as follows:
7.A witness outline must be directed only to matters in issue.
8.A witness outline must clearly identify all the topics in respect of which evidence will be given and the substance of that evidence, including the substance of each important conversation.
9.Where a witness refers to a document in a witness outline, they…

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: [2019] WADC 52
Decision Date: 12 APRIL 2019

CaseChat Overview and Summary

The case before the court involved Built Pty Ltd, the plaintiff, and C and L Ceilings Pty Ltd, the defendant, in a dispute concerning case management and the admissibility of evidence. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Built Pty Ltd, sought an order for the defendant, C and L Ceilings Pty Ltd, to prepare and provide witness outlines in accordance with the provisions of the Civil Procedure Act 2005 (NSW). The defendant contested the plaintiff's application, arguing that the provision of witness outlines was not required and would be an undue burden.

The primary legal issue before the court was whether the plaintiff's application for witness outlines was justified under the relevant statutory provisions. The court had to determine if the provision of witness outlines was necessary to facilitate the just and efficient resolution of the proceedings, as per section 56(1)(b) of the Civil Procedure Act 2005 (NSW). The court also needed to consider whether the defendant's refusal to provide witness outlines was reasonable and justified under the circumstances.

In delivering the judgment, the court considered the relevant statutory provisions and the principles of case management in the Supreme Court. The court held that the provision of witness outlines is an important tool in ensuring that the parties are prepared and that the proceedings are conducted in an efficient and effective manner. The court found that the plaintiff's application for witness outlines was justified as it would assist in the just and efficient resolution of the proceedings. The court also held that the defendant's refusal to provide witness outlines was unreasonable, given the importance of the evidence to be provided by the witnesses and the potential impact on the outcome of the case. Consequently, the court ordered the defendant to prepare and provide witness outlines in accordance with the provisions of the Civil Procedure Act 2005 (NSW).

The final orders of the court included an order for the defendant to prepare and provide witness outlines for all witnesses to be called by the defendant in the proceeding. The court further ordered that the defendant pay the plaintiff's costs of the application. The case serves as a reminder of the importance of case management and the need for parties to cooperate in the resolution of disputes.

Orders