OLI 1 Pty Ltd (in liq) v OLG 1 Pty Ltd

[2022] NSWSC 891

Supreme Court

New South Wales

Medium Neutral Citation:

OLI 1 Pty Ltd (in liq) v OLG 1 Pty Ltd [2022] NSWSC 891

Hearing dates:

14 June 2022

Date of orders:

14 June 2022

Decision date:

14 June 2022

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

The Court orders:

(1) The third defendant has leave to provide her evidence in chief and be cross-examined at the final hearing of this matter, which is set down from 12 to 14 July 2022, by audio visual link from the United States of America to the courtroom in which the hearing is otherwise taking place in person.

(2) The defendants’ notice of motion filed on 19 May 2022 (the notice of motion) be otherwise dismissed.

(3) The costs of the notice of motion are the plaintiff’s costs in the proceedings.

The Court notes the agreement of the parties that:

(1) The hearing on 12 to 14 July 2022 will take place in person, save for the matters set out in order 1 of these orders which provide that the third defendant has leave to give her evidence and be cross-examined by audio visual link from the United States of America to the courtroom in which the hearing is otherwise taking place in person.

(2) Order 1 of these orders is consented to by the plaintiff solely on the basis that the third defendant is in the United States of America in the period from 12 to 14 July 2022. If the third defendant is present in the jurisdiction during the hearing of the matter (whether on 12 to 14 July 2022 or any other date) then the third defendant is to give evidence in person.

Catchwords:

EVIDENCE – application to give evidence by audio visual link – Section 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) – application not opposed – no question of principle

Legislation Cited:

Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B

Category:

Procedural rulings

Parties:

OLI 1 Pty Ltd (in liquidation) (Plaintiff)
OLG 1 Pty Ltd (First Defendant)
Nicholas James O’Day (Second Defendant)
Jeannene Bernadette O’Day (Third Defendant)

Representation:

Counsel:
M Peach (Plaintiff)
N O’Day (First and Second Defendants)
A Craven (Third Defendant)

Solicitors:
Bridges Lawyers (Plaintiff)
Self-represented (First Defendant)
Self-represented (Second Defendant)
Andreyev Lawyers (Third Defendant)

File Number(s):

2020/141661

EX TEMPORE Judgment (REVISED)

1. This is an application brought by notice of motion by the first, second and third defendants by which they seek a number of orders. In particular, they seek orders that a trial, which is listed on 12 July 2022, be adjourned and, inferentially, that the trial date be vacated. In the alternative, they seek an order that leave be given for the third defendant, that is Jeannene Bernadette O’Day, to provide her evidence in chief and to be cross-examined at the trial by way of an audio visual link from the United States.

2. The background to the matter is that a statement of claim was filed by the plaintiff on 12 May 2020, and a defence was jointly filed by the defendants on 15 March 2021. It is unnecessary to go into the details of the nature of the claim, but it is appropriate to point out that the matter was listed for trial some time ago.

3. The third defendant relies upon a number of affidavits explaining how it comes to be that she seeks the orders that she does. The affidavit that specifically relates to the present notice of motion is relatively brief, but it refers back to an affidavit of the third defendant filed on 20 August 2021. That affidavit sets out in some detail, and with supporting annexures, a medical condition that she has suffered since a diagnosis in 1990 and the progress of her condition over many years. I do not propose to go into details of a personal nature in relation to that; it is unnecessary, particularly given the consent of the parties, ultimately, to the orders that I will make.

4. In terms of the application to vacate the hearing date, that application is not pressed. That, I should say, is a sensible position to take given the age of the proceedings and the timing of the third defendant’s forthcoming trip to America. The primary and secondary purposes of that trip are set out in her affidavit, but I need say no more about that. The third defendant is, amongst other things, seeking specialist medical treatment in the United States during the period of the trial and the plaintiff and the first and second defendants do not oppose the order that she gives her evidence by way of audio visual link. That is an order that can be made pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW).

5. There are prohibitions on the making of such an order in subsection (2). I am satisfied that facilities are available for the third defendant to give evidence via audio visual link. I am not satisfied that it would be more convenient for her to give evidence from the courtroom in the particular circumstances. None of the three affected parties make any submission that would lead me to be satisfied that making a direction would be unfair to any party. I am not satisfied that the third defendant will not in fact give evidence when she appears to do so. Subsection (3) does not apply because none of the parties oppose the making of a direction.

6. As I have said, the parties have come to an agreement in relation to the appropriate orders and I am satisfied that the direction should be made. I am satisfied that the other orders sought in the notice of motion, in particular the application to vacate the hearing date, should be rejected or dismissed. Accordingly, I make orders in terms of the short minutes of orders filed in court today, pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), as follows:

1. The third defendant has leave to provide her evidence in chief and be cross-examined at the final hearing of this matter, which is set down from 12 to 14 July 2022, by audio visual link from the United States of America to the courtroom in which the hearing is otherwise taking place in person.

2. The defendants’ notice of motion filed on 19 May 2022 (the notice of motion) be otherwise dismissed.

3. The costs of the notice of motion are the plaintiff’s costs in the proceedings.

7. The Court also notes the agreement of the parties that:

1. The hearing on 12 to 14 July 2022 will take place in person, save for the matters set out in order 1 of these orders which provide that the third defendant has leave to give her evidence and be cross-examined by audio visual link from the United States of America to the courtroom in which the hearing is otherwise taking place in person.

2. Order 1 of these orders is consented to by the plaintiff solely on the basis that the third defendant is in the United States of America in the period from 12 to 14 July 2022. If the third defendant is present in the jurisdiction during the hearing of the matter (whether on 12 to 14 July 2022 or any other date) then the third defendant is to give evidence in person.

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Decision last updated: 04 August 2022