Cessnock City Council v Bimbadgen Estate Pty Ltd

[2011] NSWLEC 136

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cessnock City Council v Bimbadgen Estate Pty Ltd [2011] NSWLEC 136
Hearing dates:	9 August 2011
Decision date:	09 August 2011
Jurisdiction:	Class 5
Before:	Pepper J
Decision:	The application for a witness to give evidence by way of video link refused
Catchwords:	PROCEDURE: application to adduce evidence by video link - documentary cross-examination - credit of witness in issue - evidence of witness central to proceedings - inconvenience to witness and cost to defendant not as great as suggested - application refused
Legislation Cited:	Land and Environment Court Rules 2007, r 5.2 Uniform Civil Procedure Rules 2005, r 31.3
Cases Cited:	Australian Medical Imaging Pty Ltd v Marconi Medical Systems [2001] NSWSC 651; (2001) 53 NSWLR 1 Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd [2009] NSWLEC 98
Category:	Procedural and other rulings
Parties:	Cessnock City Council (Prosector) Bimbadgen Estate Pty Ltd (Defendant)
Representation:	Mr T G Howard (Prosecutor) Mr S Nash (Defendant) Mallik Rees Lawyers (Prosecutor) Addisons Lawyers (Defendant)
File Number(s):	50195/11

EX TEMPORE Judgment

The Defendant Applies to Have a Witness' Evidence Heard by Video Link

1. This is an application for an order that the evidence of a witness for the defendant, Bimbadgen Estate Pty Limited ("Bimbadgen"), be given by video link.

1. The witness is Mr John Quirk, a wine and tourism industry consultant who has sworn an affidavit in the proceedings on behalf of Bimbadgen. Mr Quirk was employed as the General Manager of Bimbadgen during the charge period. Mr Quirk gives evidence of the circumstances in which the commission of the offence occurred and the state of mind of Bimbadgen at the time. Suffice it to say that his evidence is significant.

1. Cessnock City Council ("the council") has requested that he be available for cross-examination.

1. Mr Quirk, however, currently resides in Echuca, Victoria and is no longer employed by Bimbadgen. It is for this reason that Bimbadgen has applied to have his evidence heard by video link at Bendigo Local Court.

1. The council does not consent to the application.

1. No notice of motion has been filed by Bimbadgen. In light of the imminent sentencing hearing I have dispensed with the need for a notice of motion to be filed. However, such applications should ordinarily be made by notice of motion with an accompanying affidavit in support.

The Circumstances Giving Rise to the Prosecution

1. Bimbadgen carries on a business that comprises a winery and vineyard, together with cellardoor sales and a restaurant. From time to time, Bimbadgen also hosts outdoor concerts on its property, which are professionally promoted and for which tickets are sold in advance to members of the public. It is not in dispute that the holding of an outdoor concert by Bimbadgen on its land requires development consent pursuant to the provisions of the Cessnock Local Environmental Plan 1989.

1. Usually when Bimbadgen proposes to hold such a concert, its practice is to first apply for and obtain development consent from the council. Regrettably, between 16 July and 26 August 2009, Bimbadgen caused earthworks to be carried out on its property for the purpose of enabling a greater number of persons to attend a series of concerts on the property and to provide suitable parking for those attendees. The earthworks involved the cutting and filling of approximately 10,000m of material over an area of approximately 3.4 ha on the property. At the time the earthworks were undertaken, Bimbadgen had not applied for, nor obtained, consent to carry out those works.

1. Bimbadgen has accordingly been prosecuted by the council and has pleaded guilty. The hearing next week before the Court is to determine the appropriate penalty to be imposed on Bimbadgen.

Applicable Legal Principles in Determining Whether Evidence Should be Given Other Than in Person

1. The Court may permit evidence to be received by way of video link pursuant to r 31.3 of the Uniform Civil Procedure Rules 2005 ("the UCPR") (which applies to these Class 5 proceedings by reason of r 5.2 of the Land and Environment Court Rules 2007). That rule provides:

31.3 Evidence by telephone, video link or other communication

(1) If the court so orders, evidence and submissions may be received by telephone, video link or other form of communication.

1. As the moving party to the application Bimbadgen bears the onus of demonstrating the appropriateness of making such an order (Australian Medical Imaging Pty Ltd v Marconi Medical Systems [2001] NSWSC 651; (2001) 53 NSWLR 1).

1. In Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd [2009] NSWLEC 98 I noted the following legal principles applicable to requests to receive evidence by way of video link (at [11] and [14]):

11 The relevant principle in relation to an application such as this is that generally an order will be made to hear evidence by video link if it is in the interests of justice to do so, or if it is appropriate and not unfair to any party (see generally the case of Markisic v United States of America [2006] NSWSC 839). Factors relevant to the exercise of the Court's discretion in this regard include:

(a) the nature and importance of the evidence;

(b) the extent to which it is likely to be disputed;

(c) the costs of hearing the evidence by way of video link;

(d) the nature of any cross examination. For example, the extent to which it will involve documents;

(e) whether the evidence will be given in a different time zone;

(f) the convenience to the parties; and

(g) the duration of any proposed evidence to be given.

...

14 Generally, there is considerable desirability in a witness physically being present at the hearing. Otherwise, there is a risk that the Court's ability to assess the evidence given by that witness is compromised. This is particularly so in a criminal trial where the defendant may be facing serious penalties if found guilty. In this regard I note and endorse the comments made by Lloyd J in the recent decision of Filipowski v Hemina Holdings [2009] NSWLEC 67 at [7] where his Honour said, "[t]he relevant principles are that in general, it must be assumed that overseas witnesses required for cross-examination in a trial will attend the court in person to give evidence". While Filipowski was a case dealing with an overseas witness, his Honour's comments are nevertheless appropriate where, as in the present case, a local witness wishes to give his evidence overseas. His Honour then quoted from the decision R v Wilkie (2005) 193 FLR 291 where Howie J held at [10] that:

There is authority that suggests that audiovisual evidence should only be allowed where good reason exists for the failure of the witness to attend the proceedings in person.

His Honour expressed the view (at [9]) in Filipowski that there is opportunity for a greater degree of flexibility in civil cases than in criminal cases in relation to the use of video link evidence.

Bimbagen's Application Must be Refused

1. In support of the application Bimbadgen relied upon an affidavit of Mr Martin O'Connor, sworn 9 August 2011. Mr O'Connor is the solicitor for Bimbadgen.

1. In his affidavit Mr O'Connor deposed to the following material facts:

(a) that from the outset, the prosecutor required Mr Quirk for cross-examination and notified Bimbadgen that it would be unlikely to consent to the present application;

(b) that Mr Quirk instructed him that to travel from Echuca to Sydney in order to ensure that he is available for a hearing commencing at 10.00am on 15 August 2011, would necessitate him getting up at approximately 4.00am, driving to Tullamarine airport and catching a 7.30am flight. Mr Quirk estimated a total of between 8-10 hours travel time would be required for a cross-examination that the prosecution has acknowledged "will not take long" . This is in contrast to a total of approximately two hours of travel if he were permitted to give evidence at Bendigo Local Court by way of video link;

(c) although Mr Quirk's travelling costs and lost income would be met by Bimbadgen, Mr O'Connor calculated that it would cost Bimbadgen "approximately $2,000 more" if Mr Quirk was required to travel to Sydney;

(d) any inconvenience caused by a documentary cross-examination of Mr Quirk, could be overcome by the council providing to Bimbadgen, or sending to Bendigo Court, a numbered bundle of documents to which Mr Quirk could be taken during the course of his oral evidence.

1. Thus Bimbadgen's objections to Mr Quirk giving evidence in person came down to those of the cost to Bimbadgen and the inconvenience to Mr Quirk.

1. Turning first to the issue of the cost to Bimbadgen, the council put before the Court a bundle of documents comprising downloaded webpages from the Bendigo Airport Service and Webjet Travel. These documents revealed that the cost to Bimbadgen would be unlikely to be "approximately $2,000 more" if Mr Quirk was not permitted to give his evidence by audio visual link from Bendigo Local Court. To the contrary, the material indicated that the amount would be significantly less. The Court notes that Mr O'Connor provided no underlying documentation supporting the calculation that he made. But the Court accepts that requiring Mr Quirk to be cross-examined in person will increase the cost to Bimbadgen of the hearing. This is particularly relevant given that Bimbadgen has agreed to pay the council's costs of the sentencing proceedings.

1. In relation to the inconvenience to Mr Quirk, the Court similarly acknowledges that it will be less convenient for Mr Quirk to travel to Sydney to give his evidence than if he were to travel to Bendigo Local Court. The Court does not, however, accept that Mr Quirk will be inconvenienced to the extent that he has advised Mr O'Connor.

1. The Webjet Travel and Bendigo Airport Service material furnished to the Court suggests that flights are readily available from Melbourne to Sydney on the morning of the hearing and that the Bendigo Airport Service provides a shuttle service to Tullamarine Airport. Provided the Court is flexible in respect of the time the hearing commences - which it will be in order to accommodate Mr Quirk - there are no insuperable difficulties to Mr Quirk flying to Sydney the morning of the hearing on 15 August 2011. In the alternative, Mr Quirk can travel to Sydney the night before the hearing and stay at a hotel within a reasonable distance of the Court. This will only marginally add to the expense to be incurred by Bimbadgen,

1. Having regard to the factors relevant to the current exercise of the Court's discretion as set out in Walker Corporation above, it becomes apparent that the application must be refused. The reasons for this are as follows:

(a) Mr Quirk's evidence is of central importance to the hearing given his role as the General Manager of Bimbadgen at the time of the commission of the offence. It goes to the critical issue of the state of mind of Bimbadgen at the time, a potential factor in aggravation that the council must prove beyond reasonably doubt;

(b) Mr Quirk will be cross-examined on two particular aspects of his evidence in order to demonstrate that:

(1) he is being less than candid when he states that he cannot recollect a conversation with two council officers prior to the earthworks commencing wherein he was informed that Bimbadgen required development consent to carry out the construction works; and

(2) the earthworks continued after the council gave Bimbadgen a direction to cease work.

This cross-examination will involve a challenge to the credit of Mr Quirk and, as foreshadowed by Mr O'Connor, will necessitate putting documents before Mr Quirk (for example, invoices from various contractors). It is preferable, not only for the convenience of the council and the Court that the cross-examination occur in person, but, more importantly, as a matter of fairness to Mr Quirk himself, given the potential adverse consequences of a finding by the Court that Mr Quirk is not a witness of truth;

(c) Bimbadgen submitted that because it would not be cross-examining the council officers on their recollection of the conversation they had with Mr Quirk concerning the need for development consent, it was likely that the Court would accept their evidence in any event, and therefore, the extent to which Mr Quirk's evidence was likely to be in dispute was limited. But the fact remains that the evidence of the conversation is not conceded. In addition, it is also not accepted by Bimbadgen, at least at this stage, that development continued after the cease work order was issued. Accordingly, the salient parts of Mr Quirk's evidence remain in dispute;

(d) while the cost of hearing Mr Quirk's evidence in person is certainly likely to be greater than the cost of hearing his evidence by way of video link, these increased costs are not sufficiently high to warrant the application being acceded to;

(e) as stated above, the cross-examination of Mr Quirk will involve documents. While a logistical solution has been suggested by Bimbadgen, because the council has not yet formed a final view as to what documents are required, and it is unlikely to do so in the immediate future, guaranteeing that the documents arrive in sufficient time for the hearing to proceed on 15 August 2011 is impossible. In addition, if any collation errors occur these will be difficult to rectify over video link;

(f) Mr Quirk is only required to travel from Victoria to New South Wales. The journey is not, therefore, excessive;

(g) while acknowledging the inconvenience that will be caused to Mr Quirk by requiring him to give evidence in person, the Court also acknowledges the inconvenience to the council if it is compelled to cross-examine Mr Quirk remotely, having regard to the nature of the cross-examination. The Court will similarly be inconvenienced in terms of its ability to properly assess the veracity of Mr Quirk's evidence; and

(h) this is so notwithstanding that the duration of the proposed cross-examination by the council is estimated to be short, although given the foreshadowed attack on Mr Quirk's credit, this cannot be guaranteed.

1. When regard is had to these considerations, and the general principle that it is to be assumed that witnesses required for cross-examination in a hearing will attend the court in person to give evidence absent "good reason", the Court is disinclined to exercise it discretion to allow the application.

1. In all the circumstances, therefore, the application must be refused.

Conclusion and Orders

1. It follows that the application by Bimbadgen for Mr Quirk to give evidence by way of video link is refused.

1. However, the hearing on 15 August 2011 will commence at 11.00am to accommodate Mr Quirk's travel from Echuca to Sydney on that day.

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Decision last updated: 11 August 2011