Gorczynski v Perera and Dee (No. 2)
[2003] NSWLEC 149
•10/29/2002
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Land and Environment Court
of New South Wales
CITATION: Gorczynski v Perera & Dee & Ors (No. 2) [2003] NSWLEC 149 PARTIES: APPLICANT
Peter Francis GorczynskiFIRST RESPONDENTS
Ravini Neluka Perera and Rebecca Patrica DeeSECOND RESPONDENT
THIRD RESPONDENT
Annandale Services Pty Limited trading as Ray White Real Estate Annandale
Leichhardt CouncilFILE NUMBER(S): 40208 of 2001 CORAM: Cowdroy J KEY ISSUES: Evidence - Practice and Procedure :- admissibility of affidavit - vacation of hearing dates LEGISLATION CITED: CASES CITED: DATES OF HEARING: 29/10/2002 EX TEMPORE
JUDGMENT DATE :
10/29/2002LEGAL REPRESENTATIVES:
APPLICANT
Mr P Larkin (Barrister)SOLICITORS
Windeyer DibbsFIRST and SECOND RESPONDENTS
Ms E. Duenow (Solicitor)SOLICITORS
Mallesons Stephen JaquesTHIRD RESPONDENT
SOLICITORS
Ms H. Irish (Barrister)
Pike Pike & Fenwick
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
40208 of 2001
29 October 2002Cowdroy J
- Applicant
- First Respondents
- Second Respondent
- Third Respondent
Introduction
1 By notice of motion dated 25 October 2002 the applicant moves the Court for various orders including an order that the third respondent be refused leave to rely upon an affidavit of Professor Richard Mackay sworn 21 October 2002. Alternatively, orders are sought that the hearing dates fixed for 11 November 2002, 13 November 2002 and 14 November 2002 be vacated.
2 Leichhardt Council (“the council”) intends to rely upon the affidavit of Professor Richard Mackay. Mr Mackay is a heritage expert and his affidavit relates to his observations of the subject building and an examination of historical records relating to the subject building and other buildings in the area. The council says the matters in Professor Mackay’s affidavit essentially are in reply to factual matters raised during the course of the last hearing.
3 At the previous hearing the Court granted leave for the council to rely upon further evidence but directed that if the applicant felt unable to proceed on the adjourned dates namely 11 November 2002, 13 November 2002 and 14 November 2002, an application could be made to the Court. The present application is made pursuant to such leave.
4 In recent weeks relevant historical records have been located, collated and placed on computer disk. The disk was provided to the applicant on 16 October 2002. It was then considered that the disk would be difficult to access and accordingly hard copies of the contents of the disk were sought by the applicant.
5 Hard copies of the information was provided to the applicant and to the Court on 17 October 2002, but they were illegible. Accordingly, the applicant claims that he cannot obtain expert evidence in response. The applicant has been aware that such records were illegible since 17 October 2002. No request has been made by the applicant to date for legible copies to be provided.
6 Mr Larkin, who appears for the applicant, raises a further and unrelated issue. Mr Larkin is well acquainted with Professor Mackay and considers that it would be inappropriate to cross-examine him. It is submitted that another legal adviser will have to be retained for such purpose and that there is insufficient time between now and Monday fortnight when the hearing is due to resume for that person to be fully instructed.
7 The Court is conscious that the material provided by Professor Mackay could have a direct bearing on certain issues in the proceedings. The affidavit of Professor Mackay is detailed and contains numerous annexures, most of which are copies of rate notices or title deeds which may provide an important history.
8 The Court considers that it is appropriate for the council to rely upon its choice of experts. Accordingly there are no grounds to refuse leave to rely upon the affidavit of Professor Mackay and the Court will admit such affidavit.
9 The next issue is whether there should be a vacation of the hearing dates. Three days have been allocated. Mr Mitchell remains under cross-examination, and witnesses Mr Howse, Mr Chambers, Ms Dee and Mr Perera are yet to give evidence.
10 The Court is satisfied that cross-examination of those witnesses should continue on the dates allocated and Professor Mackay, if required to give any further evidence-in-chief, should be available at that hearing. However, the applicant should not be required to cross-examine Professor Mackay in the three days allocated. If there is to be cross-examination of Professor Mackay or calling of further evidence in reply to the evidence of Professor Mackay, it may be postponed to another date. The Court has ascertained that the dates of 3 February 2003 to 7 February 2003 are available and it proposes to list this matter in reserve for those dates in the event that it cannot be concluded in the remaining days already fixed.
Orders
11 The Court makes the following orders:-
1. The first order stated in the notice of motion is refused.
2. The hearing dates fixed for 11 November 2002, 13 November 2002 and 14 November 2002 are confirmed.
3. The dates of 3 February 2003 to 7 February 2003 will be the dates for the continuation of the hearing if they are required. It is to be noted that the cross-examination of Mr Mitchell, Mr Howse, Mr Chambers, Ms Dee and Mr Perera is to continue on 11 November 2002, 13 November 2002 and 14 November 2002.
4. The Court notes that the dates of 2 December 2002, 3 December 2002 and 4 December 2002 will also be allocated for the hearing of this matter. In the event these proceedings do not conclude in such period then the hearing dates of 3 February 2003 to 7 February 2003 will also be reserved by the Court. In the period 2 December 2002, 3 December 2002 and 4 December 2002 the applicant is expected to be ready to proceed with any evidence in opposition to the evidence which has been recently produced by the council.
5. Costs of this motion are reserved.
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