Contact Minerals Pty Ltd v Mineral Providers Australia Pty Ltd

[2001] FCA 213

FEDERAL COURT OF AUSTRALIA

Contact Minerals Pty Ltd v Mineral Providers Australia Pty Ltd [2001] FCA 213

CONTACT MINERALS PTY LIMITED & ANOR v
MINERAL PROVIDERS AUSTRALIA PTY LIMITED & ORS
N 182 OF 1999

TAMBERLIN J
SYDNEY
28 FEBRUARY 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N182 OF 1999

BETWEEN:	CONTACT MINERALS PTY LIMITED & ANOR APPLICANT
AND:	MINERAL PROVIDERS AUSTRALIA PTY LIMITED & ORS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	28 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter there is an application by Notice of Motion  filed in court this morning to allow the applicants to file and serve affidavits of James Hewitt, sworn on 21 February 2001 and Ora Clark Murdoch, sworn on 22 February 2001.  These affidavits go to establishing a chain of use in relation to a mine which is of importance in the conduct of this case.  The application is opposed.

2. This application is made a considerable time outside the time described in the directions and normally the Court would be inclined to refuse such an application for this reason.  I consider that the evidence (on its face) appears to be relevant and important.  The question of central importance concerns any prejudice which may be occasioned to the respondents as a consequence of allowing this material in to be filed at this very late stage. 

3. I am satisfied that proper steps can be taken to safeguard the position of the respondents in the event this evidence is taken in the sense that, if substantial prejudice can be shown, the cross-examination of those two witnesses may be stood over to a later date.  This matter has a long history, having been commenced in 1999, and for various reasons it has not come to trial.  There have been numerous interlocutory applications in the course of the proceeding and there has been too much delay.  I think it is of considerable importance that the matter should commence on the date fixed and three days next week have been set aside.

4. I have looked at the affidavits in order to see what they relate to and I consider that, if necessary, it will be possible to work out a procedural arrangement whereby the respondent is not prejudiced if the affidavits are allowed to be read.  I accordingly allow the applicants to file and serve the affidavits and I reserve any question of cost which may flow from this very late application. 

5. This then gives rise to a second question namely; whether the evidence of those two persons, who I am informed are elderly, Mr Hewitt being in his eighties and Ms Murdoch being in her nineties, should be permitted to be taken by video-link.  Having regard to their age and to the obvious difficulties that have been pointed to in their personal attendance I am satisfied that this is an appropriate case in which to permit that evidence to be led by video-link.

6. I am not persuaded that this is a case where there will be considerable documentary evidence which needs to be put to these witnesses.  Nor am I satisfied that their evidence is such that I will not be able to form a view as to the credibility of the witnesses by seeing them on video.  I do not think it is appropriate or necessary that they be present in Australia for the giving of their evidence .

7. It has been suggested that the respondents may be prejudiced by an inability, in the short period available, to obtain medical records in relation to Ms Murdoch as to the possible impact of her health condition on her ability to recollect events.  I do not find this persuasive.  In the case of James Hewitt and Ora Murdoch I grant the application to take the evidence by video-link.  As I indicated earlier, it may be, depending on the circumstances that ensue next week, that the cross-examination may need to be deferred if I am persuaded that justice cannot be done in view of the late filing of the affidavits.

8. The other witness is Mr Brett Clark, in respect of whom an application is made for evidence to be taken by video-link.  I am not persuaded that there is any reason why Mr Clark should not appear in person to give evidence in this proceeding.  He has not been shown to be in ill health and he is not aged.  Accordingly, I refuse the application in relation for a video-link.  The applicant has been on notice of the hearing for a considerable period of time and that Mr Clark will be required to give evidence and he has made only this application at the last moment.  I am not disposed to grant it.

9. Another matter which has been foreshadowed, but in respect of which no decision need be made today, is that Mr Robert Musach, who was the fourth respondent and, I am also informed, a director of C&M Laboratories International Inc. passed away last December or early January.  In these circumstances, there is an intimation that the executors and those interested in the estate of Mr Musach and in the affairs of C&M Laboratories may seek an adjournment. At present I can see no reason why proceedings against the body corporate should not go ahead as fixed.  This is a matter which can be considered on its merits if and when any application is made.

10. It is essential that consistently with the interests of justice that the time of the Court should be productively used and I am not disposed at the moment to consider vacating any of the time set aside for the hearing.  Accordingly, the matter will commence next week on the day fixed but I will hear any application which is then made.

11. Mr Stoljar has pointed out that there may be a necessity for there to be separate legal representatives in respect of the third and fourth respondents in view of the information which has come to hand.  I think the appropriate course is that the question of any adjournment application should be stood over until next Tuesday at 10.15 am when the hearing is fixed and a ruling will be made at that point of time.  It is not appropriate in my view to entertain an application for an adjournment prior to the commencement of the hearing.

12. I reserve any question of costs.  I make the orders which I have indicated and the matter will proceed to hearing next week

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin .

Associate:

Dated:             15 March 2001

Solicitor for the Applicants:	Kells The Lawyers
Counsel for the Respondents:	J Stoljar
Solicitor for the Respondents:	Coyne & Whitemore
Date of Hearing:	28 February 2001
Date of Judgment:	28 February 2001