Citiline Concrete Pumping Pty Ltd v Chubb Insurance Australia Ltd
[2022] NSWSC 1130
•22 August 2022
Supreme Court
New South Wales
Medium Neutral Citation: Citiline Concrete Pumping Pty Ltd v Chubb Insurance Australia Ltd [2022] NSWSC 1130 Hearing dates: 22 August 2022 Date of orders: 22 August 2022 Decision date: 22 August 2022 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Leave to have witness give evidence from London by audio visual link refused
Catchwords: PRACTICE AND PROCEDURE – application to have evidence of witness for defendant given by audio visual link from London – where witness’s presence in London during trial dates known to solicitors for defendant since matter fixed for hearing in March 2022 – where no steps taken to arrange alternate hearing date or to seek plaintiff’s consent to evidence being given remotely until week before hearing – where witness’s evidence contentious and directed to a critical issue
Category: Procedural rulings Parties: Citiline Concrete Pumping Pty Ltd (Plaintiff/Respondent)
Chubb Insurance Australia Ltd (Defendant/Applicant)Representation: Counsel:
Solicitors:
N Kirby (Plaintiff/Respondent)
C Purdy (Defendant/Applicant)
Fortis Law (Plaintiff/Respondent)
HWL Ebsworth Lawyers (Defendant/Applicant)
File Number(s): 2021/10722
EX TEMPORE JUDGMENT (REVISED)
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One issue in these proceedings is whether the defendant, Chubb Insurance Australia Ltd, would have written the policy the subject of these proceedings, had certain matters been disclosed to Chubb by the plaintiff insured, Citiline Concrete Pumping Pty Ltd.
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A witness for Chubb was to be Mr Allen Paes, a senior underwriter employed by Chubb, who was evidently responsible for deciding, at least in the first instance, whether Chubb would write the risk. In an affidavit sworn on 24 September 2021, Mr Paes says that he would not have issued the policy had certain matters been disclosed. That evidence is contentious. I am informed by Mr Kirby, who appears for the plaintiff, that he wishes to challenge it. It is, obviously, important evidence in the context of the case.
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This matter was set down for hearing for three days commencing today, as long ago as 14 March 2022. Evidently, Chubb’s solicitors made no enquiries, when that hearing date was allocated, as to whether Mr Paes would be available on the relevant days. On 17 March 2022 a solicitor employed by Chubb’s solicitors wrote to Mr Paes and another witness, Mr Leafe, a more senior underwriter at Chubb, notifying them of the hearing date. Mr Paes responded the same day saying, "I won't be in the country during those dates – returning to UK from 07 August to 16 September". Nonetheless, Chubb’s solicitors took no steps to seek an alternate date, including one before 7 August 2022 or after 16 September 2022, nor to seek the plaintiff's agreement that Mr Paes's evidence be given by audio visual link.
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Nothing relevant appears to have happened until 25 July 2022, when Mr Jason Stevens, the partner dealing with this matter at Chubb’s solicitors, wrote to Mr Leafe, with a copy to Mr Paes, stating relevantly, "Can you please confirm if indeed [Allen Paes] will be in London over the 3 days from 22-24 August. If so we will have to explore options for his evidence to be given via a video facility.”
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Mr Stevens deposed:
“I did not receive an email in reply from Mr Leafe. However, I recall having a telephone conversation with Mr Paes [sic: Mr Leafe] shortly after I sent him the email on 25 July 2022 and in that call Mr Leafe confirmed that Mr Paes had either already left Australia for London or that he was to leave for London in the next coming days.”
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Nonetheless, no steps were evidently taken by Mr Stevens to "explore options" for Mr Paes's evidence to be given otherwise than in Court until last Tuesday 16 August 2022 when an employed solicitor, not the person involved last March, wrote to the plaintiff's solicitors saying Mr Paes "will be in London at the time of the hearing due to work commitments", and asking the plaintiff's solicitors to "confirm" their consent to cross-examining Mr Paes by way of audio visual link.
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Although Chubb’s legal advisers should have anticipated, in my opinion, that Mr Paes would be required for cross-examination, formal notice of cross-examination was in fact given a few days before that, on 10 August 2022.
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Around this time, an issue arose as to whether one of the plaintiff's witnesses, Mr Duckworth, should also give his evidence by way of audio visual link. Mr Duckworth's position is quite different from that of Mr Paes, as he is evidently suffering from a severe medical condition, which would prevent him travelling from Queensland to Sydney to give evidence.
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In those circumstances, the solicitor for Chubb told the solicitor for the plaintiff in a further email on 16 August 2022 that Chubb consented to Mr Duckworth giving evidence by audio visual link "subject to your client consenting to cross-examining Mr Allen Paes by way of audio-visual link while he is in London".
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It appears to me that was an inappropriate bargain to propose, as the position of the two witnesses is quite different.
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The following day, 17 August 2022, the plaintiff's solicitors informed Chubb’s solicitors that they did not consent to Mr Paes’s evidence being given remotely.
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Mr Kirby informs me that his ability to test Mr Paes’s evidence will be impeded if he is not available to give evidence in person.
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Although during the pandemic, much evidence was given remotely, and in circumstances where neither the Court nor the parties had any option but to proceed that way, as all parties practising in this Court should know, the Court has issued COVID protocols from time to time. The most recent protocol was issued on 2 May 2022 and stated that "unless notified in advance by the Court, the parties should assume that substantive hearings … will proceed by way of live hearing". Those advising Chubb should have been aware of that protocol.
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The situation is entirely unsatisfactory. Mr Paes's evidence goes to a critical issue. And the plaintiff is, in my opinion, in the circumstances of this case, entitled to have him physically present for cross-examination. Mr Paes's absence from Sydney is not due to some to recent or unexpected development. Chubb’s solicitors have known for over five months that he planned to be in the United Kingdom at this time. They had taken no steps to deal with that problem until the last couple of days.
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In those circumstances, I do not propose to grant Chubb leave to have Mr Paes's evidence given remotely.
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I am informed by Mr Purdy, who appears for Chubb, that in that circumstance Chubb will not read his evidence.
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Decision last updated: 24 August 2022
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