Colin Biggers & Paisley Pty Limited t/as Colin Biggers and Paisley v McKenzie (No 2)

[2017] NSWSC 1427

Supreme Court

New South Wales

Medium Neutral Citation:

Colin Biggers & Paisley Pty Limited t/as Colin Biggers and Paisley v McKenzie (No 2) [2017] NSWSC 1427

Hearing dates:

16 October 2017

Date of orders:

16 October 2017

Decision date:

16 October 2017

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

The applicant’s tender bundle is admitted on the stay application as Exhibit B.

Catchwords:

EVIDENCE – Relevance

Category:

Procedural and other rulings

Parties:

Colin Biggers & Paisley Pty Limited (Respondent/Plaintiff)
Mr Mark McKenzie (Applicant/Defendant)

Representation:

Counsel:

 

R Lovas (Applicant)
J Anderson (Respondent)

 

Solicitors:

  Amanda Louise Farmer (Applicant)
Colin Biggers and Paisley (Respondent)

File Number(s):

2016/350694

Publication restriction:

Nil

EX TEMPORE Judgment (REVISED)

1. Mr Lovas of Counsel has tendered a chronology attaching what is referred to as the applicant's tender bundle which runs to some fifty-seven pages. Some of the documents contained in the tender bundle were annexed to the applicant's affidavit which has been read and to the respondent's affidavit which I anticipate will be read. But the majority of the material is new material not the subject of, or attached to, affidavits filed and served in accordance with the rules.

2. I have already expressed my views about the tender of bulky documents without notice either to the responding party or the Court and I will not repeat those views here.

3. So far as material that has effectively been previously attached, Mr Anderson of Counsel, who appears for the respondent, does not object to it and on the chronology I have highlighted those matters in yellow highlighting. The other material that is objected to is on the basis that it is not relevant to the proceedings. Much of the other material, but not all of it, relates to an issue which Mr Lovas applied to cross-examine Mr Harkin on, that is, in relation to the constitution of the respondent's then partnership during the initial period it acted for the applicant.

4. I refused leave to cross-examine on those matters for the reasons I gave already this morning (see [2017] NSWSC 1426) effectively on the basis that I do not regard that matter as relevant to the issues I had to determine on the application.

5. Mr Lovas, however, puts it another way. He says accepting that the respondent does not argue that there is disentitling delay, I should at the end of the day draw the inference from the correspondence that he relies upon that the respondent is seeking to frustrate the professional negligence proceedings and that matter is relevant to the discretion I have to exercise as to whether or not to grant the stay.

6. I have not had the opportunity of reading all the fifty-seven pages of material. I have previously read the material which is a duplicate of that attached to the affidavits. I have some doubt about whether the matter is relevant or whether, from my scanning it, it constitutes evidence of delaying tactics adopted by the respondent, but so far as that argument is sought to be advanced by counsel as going to the exercise of my discretion whether or not to grant the stay, I will admit it as being relevant in the sense that it could potentially establish a fact which may be relevant to the exercise of the discretion.

7. There are some other matters including documentation relating to the original costs assessment and the review. I must say that other than as chronology those matters are not relevant, it is not necessary for me to go behind the judgment of the Court and I think, however, basically Mr Lovas has included them just to give me a helpful aide memoire about the dates when significant events occurred and I accept the chronology is useful in that sense.

8. I propose to admit the whole of the tender bundle as Exhibit B on the application.

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