Onus v Telstra Corporation Limited

[2010] NSWSC 1146

CITATION:	Onus v Telstra Corporation Limited [2010] NSWSC 1146 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	3/09/2010
JUDGMENT DATE :	3 September 2010
JUDGMENT OF:	Price J at 1
EX TEMPORE JUDGMENT DATE:	3 September 2010
DECISION:	1. The application for the orders sought in the notice of motion is refused.
CATCHWORDS:	PROCEDURE - interlocutory issues - notice of motion - orders for inspection - whether view would facilitate just, quick and cheap resolution of the real issues
LEGISLATION CITED:	Civil Procedure Act Evidence Act
CATEGORY:	Procedural and other rulings
PARTIES:	Grahame Onus (Plaintiff) Telstra Corporation Limited (Defendant)
FILE NUMBER(S):	SC 2010/260963
COUNSEL:	Mr J McCarthy QC and Mr J O'Sullivan (Plaintiff) Ms S Duggan and Ms M McMahon (Defendant)
SOLICITORS:	Lyons & Lyons (Plaintiff) Mallesons Stephen Jaques (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

PRICE J
3 September 2010
2010/260963 Onus v Telstra Corporation Limited
JUDGMENT

This is a notice of motion in which the plaintiff relevantly seeks the following orders:

"A. That pursuant to section 53 of the Evidence Act 1995, an inspection be undertaken...by the parties, their legal representatives and the experts retained by them in these proceedings and such members and officers of the Court as the Court thinks fit, of the premises known as "The Oaks Airport" located at The Oaks in the State of New South Wales and of the premises of the Oaks Volunteer Rural Fire Brigade located at Mcintosh Street, The Oaks;

B. That at the Inspection, pursuant to section 53 of the Evidence Act 1995, the plaintiff demonstrate to the defendant, its legal representatives and experts retained in these proceedings and such members and officers of the Court as the Court thinks fit, the following procedures being undertaken by a light aircraft of up to 4 seat capacity;

(a) simulated baulked approach and go-around;

(b) simulated precautionary search and landing; and

(c) simulated engine failure."

2 Mr McCarthy QC who appears for the plaintiff has sought leave to amend

the notice of motion so as to include a further order of inspection which is

as follows:

"For court to fly a circuit around the Oaks near and over the site over the Telstra tower so as to acquaint the court with the size of the airport."

3 The application is opposed by Ms Duggan who appears on behalf of the defendant.

4 The basis of the application, according to Mr McCarthy, is that the view would be desirable because the central issues in the case turn upon heights, distances, closing speeds and the visibility of objects in the context of the topography and terrain at the airport. The contention is that the satellite and other photographs in evidence do not adequately show the terrain and topography of the airport because they do not show elevations.

5 Mr McCarthy's contention is that the court will be assisted by a view to make sense of weighing and placing in context the expert which has been given during the hearing, such as the horizon which, as he points out in pars 5 and 6 of his written submissions, is a subjective term depending upon the location from which the horizon is viewed.

6 The plaintiff further contends that as he has given an undertaking as to damages that the defendant would not be prejudiced by reason of the delay.

7 Ms Duggan on the other hand, in opposition to the application, referred to the history of these proceedings.

8 Originally when it was before Justice Studdert it was anticipated that the application would be dealt with within one day and for that reason it was listed for a day's hearing. Last week when the proceedings were heard before me it was then anticipated that at the very most the proceedings would not go beyond another two days. In view of the court's commitments and the commitments of Ms Duggan the view could not take place until at the earliest some four weeks hence.

9 What then may occur as a result of the proposed demonstration is the requirement for further evidence to be called, submissions then to be completed and the delay would be further compounded.

10 Ms Duggan also contends that, having regard to those matters referred to in s 53(3) Evidence Act 1995, the court should not grant the application for the view and the demonstration. One of the matters that Ms Duggan points out, so far as any demonstration is concerned, is that it might be unfairly prejudicial, it might be misleading or confusing or might cause or result in an undue waste of time for the reason that the Telstra mast is not in place.

11 Ms Duggan also referred to the difficulties of ensuring that the proposed simulation in balked approach, precautionary search and engine failure is objective and contended that the view may well result in an undue waste of time and may be misleading to the court.

12 The overriding purpose of the Civil Procedure Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56 Civil Procedure Act. There is no doubt that to adopt the course proposed by Mr McCarthy will add considerable delay and expense to the parties.

13 The real question is whether or not what is proposed will have any real benefit in assisting me to decide the real issues in dispute.

14 I am conscious that the principal consideration is the plaintiff's contention that the tower will constitute a public nuisance in that it will create a danger to aviation. There has been a wealth of expert evidence in these proceedings which have gone to some considerable extent in providing evidence as to summaries of heights, distances, closing speeds and the visibility of objects in the context of the topography terrain at the airport. There has been a wealth of evidence as to the likelihood or not of an aircraft coming into collision with the Telstra mast.

15 I have reached the conclusion, notwithstanding Mr McCarthy's suggestion that the issues in these proceedings are unique, that the proposed view and demonstration will not be of assistance to me. The proposed demonstration, and I am not referring now to the proposal that I fly in the aircraft, in my view would not be of any particular assistance to the court and would result in an undue waste of time and cost.

16 The unique considerations that Mr McCarthy refers to, to my mind relate to questions of legal principle and not as to fact. Accordingly, the application for the orders sought in the notice of motion is refused.

09/02/2011	-	Typographical error - Paragraph(s) 15
09/02/2011	-	Typographical error - Paragraph(s) Coversheet
09/02/2011	-	Typographical error - Paragraph(s) Coversheet