I C Pipes Pty Ltd v DGS Trading Pty Ltd

[2023] NSWSC 1081

Supreme Court

New South Wales

Medium Neutral Citation:

I C Pipes Pty Ltd v DGS Trading Pty Ltd [2023] NSWSC 1081

Hearing dates:

7 September 2023

Date of orders:

7 September 2023

Decision date:

07 September 2023

Jurisdiction:

Equity

Before:

Elkaim AJ

Decision:

I make the following orders:

1. Mr El Shafie and Mr Tucker may give their evidence by compliant AVL, but not by audio link only.

2. The second defendant’s application to personally give evidence by AVL is refused.

3. The application to call Mr McGee by AVL is deferred until the objections to his affidavit have been resolved.

4. Costs of the application are to be costs in the cause.

Catchwords:

PROCEDURAL RULINGS – application to conduct proceedings by audio-visual link – where case is based largely on credit – application granted in-part

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural rulings

Parties:

I C Pipes Pty Ltd (Plaintiff)
Sam Blanch (Second Defendant)
Blanch Consulting Services Pty Ltd (Third Defendant)

Representation:

Counsel:
Ms J Granger (Plaintiff)

Mr S Blanch (Second & Third Defendants)

Solicitors:
Bartier Perry (Plaintiff)

File Number(s):

2020/327509

JUDGMENT

1. The hearing in this matter is listed to commence on 11 September 2023. It has an estimate of four days.

2. The second defendant is representing himself and the third defendant, his company.

3. On 1 September 2023 the second defendant sent an email to my Associate in which he requested leave to conduct the proceedings by audio-visual link (AVL). He indicated that not only would he like to appear in this manner but that he wished his two witnesses to give their evidence remotely.

4. The plaintiff opposed the application. Accordingly, I listed the matter today in order to resolve this dispute. The second defendant appeared by audio link, apparently not having had time to set up the visual link.

5. The second defendant, in his email to my Associate, did not give any reasons for the application, but in a later email on 5 September 2023, he said that he lived in a “regional interstate” area. He informed me today that he lived in regional Queensland but the two witnesses lived in Sydney. The two witnesses were only informed that they would be required this week and the second defendant was concerned that they might not be able to attend court due to work commitments.

6. I was also informed today that the second defendant had given the plaintiff notice that he intended to call a Mr McGee as a witness. Mr McGee was the principal of the first defendant company, which is no longer a party to the proceedings.

7. Before the COVID-19 pandemic an application of this sort would have been very unlikely to succeed. However, the pandemic necessitated proceedings being conducted in different ways, one of which was having parties, their representatives and witnesses, appear by an AVL link.

8. The long-held belief that findings of credit could be determined by demeanour, best seen by observing a witness in the witness box, has also been treated with less importance in recent years.

9. The plaintiff has pointed out that the hearing dates have been known to the parties since 16 February 2023, giving them plenty of time to make arrangements to appear in Sydney.

10. The plaintiff has also submitted that credit will play a large part in the determination of the issues. In addition, documents will play a part in cross-examination, and this can be difficult where the witness is in another location.

11. Cross-examination of two of the plaintiff’s witnesses, Mr El Shafie and Mr Tucker, is likely to be short but the witnesses may need to look at the documents.

12. In relation to the second defendant, cross-examination is estimated to take some hours and there will be a good deal of referral to documents.

13. The ultimate test is what is in the interests of justice. I do not see any prejudice to the plaintiff if the two witnesses give their evidence by AVL, provided it is over a suitable and reliable connection and the witnesses have copies of the relevant documents.

14. In relation to the second defendant, I think the position is different. The documents are likely to be more voluminous and his capacity to present the case, both as a witness and a representative will be significantly more convenient if he is in court.

15. I am also concerned about the capacity of the second defendant to appear on a reliable AVL connection. He could not do so today and it appears that on previous occasions he has encountered difficulties in doing so, for example when appearing before Kunc J on 15 July 2022. If the case cannot be heard because of difficulties with establishing a reliable visual link, there will be a substantial waste of time and costs. This is clearly not a case that could be properly run if there is only an audio link to the second defendant.

16. The second defendant did point out that some earlier related proceedings in the District Court had been conducted on AVL, however, this was during the pandemic and there was little option.

17. Having regard to the nature of the case, being largely credit based, and the number of documents to be referred to, perhaps with the need for them to be shown on a screen at the same time as the witness is giving evidence, I think the second defendant should appear in person.

18. The second defendant told me that he could not travel to Sydney because he simply could not afford it. He added that this was because of the consequences of being defamed by the plaintiff which had led him to being without funds. That is an issue which is obviously disputed and has no relevance to the present application.

19. I think the second defendant’s application should be refused in respect of himself, but not his two original witnesses. As far as Mr McGee is concerned, I was told that there would be some argument about the admissibility of his affidavit, so that he may not give evidence at all. I was also told that if he did give evidence it was likely to require extensive cross-examination.

20. I think the way to approach Mr McGee’s position is that I will decide if he can give evidence by AVL after the issues concerning his affidavit have been resolved. I will make orders accordingly.

21. I make the following orders:

1. Mr El Shafie and Mr Tucker may give their evidence by compliant AVL, but not by audio link only.

2. The second defendant’s application to personally give evidence by AVL is refused.

3. The application to call Mr McGee by AVL is deferred until the objections to his affidavit have been resolved.

4. Costs of the application are to be costs in the cause.

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Decision last updated: 12 September 2023