Peachbulk Pty Ltd v R. T. Edgar (Toorak) Pty Ltd &

[2011] VCC 547

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT MELBOURNE
COMMERCIAL LIST

GENERAL DIVISION

Case No. CI-10-01281

PEACHBULK PTY LTD & ANOR	Plaintiffs
v.
R.T. EDGAR (TOORAK) PTY LTD & ORS	Defendants

---

JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	12 May 2011
DATE OF JUDGMENT:	12 May 2011 (Revised 13 May 2011)
CASE MAY BE CITED AS:	Peachbulk Pty Ltd & Anor v R. T. Edgar (Toorak) Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2011] VCC 547

REASONS FOR JUDGMENT

---

Catchwords:  Practice and procedure – Application to vacate trial date – One
defendant and her husband (a critical witness) to be out of Australia at
the time of the trial – Voluntary decision to absent themselves for
largely personal reasons – Alternative of video link evidence from
Hawaii – Stringent conditions imposed to ensure video link option
effective.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P. Bick QC with	Norton Gledhill
Mr B. Gibson
For the First, Second and	Mr M. Dudakov	Lander & Rogers
Sixth Defendants
For the Third, Fourth and	Mr A. Rodbard-Bean	Septimus Jones & Lee
Fifth Defendants
HIS HONOUR:

1           The third, fourth and fifth defendants have sought the vacation of the trial date on 25 May 2011 or, alternatively, an order that the evidence of Stuart Fleetwood (and also the fifth defendant) be given in advance of the trial or by video link.

8 2011 and today. It is my judgment that many of these issues might have been
satisfactorily resolved by the parties if discussion had occurred between the parties’
legal representatives. The third, fourth and fifth defendants have sought an
indulgence today. They have been granted that indulgence and the primary relief they

2           I have refused to vacate the trial date. I have confirmed the trial date and given leave to the third, fourth and fifth defendants to call evidence from Mr Fleetwood and the fifth defendant via a video link from Hawaii. This has been subject to very stringent conditions. If those conditions are not met, Mr Fleetwood and the fifth defendant will need to return to Melbourne in order to give their evidence.

3           Before I determined the application, I required a statement of Mr Fleetwood’s evidence to be exhibited to an affidavit to clarify the evidence that he was likely to give. This has enabled me to determine the significance of his evidence and, therefore, the appropriate method of dealing with the application.

4           Video link evidence is commonly given in the courts and I do not accept that, despite the fact that, at this stage, Mr Fleetwood’s evidence appears critical to the determination of the case, the process of hearing that evidence via video link will adversely affect the ability of the trial judge to properly assess it or for counsel to lead the evidence or cross examine the witnesses upon it.

5           The application is made very late, although it was foreshadowed at the hearing before me on 6 May 2011. The affidavit material filed in support of the application is, unfortunately, in some respects misleading as to the necessity for Mr Fleetwood to attend the conference in Hawaii and therefore to be absent from Melbourne at the time he would otherwise be required to give evidence at the trial.

6           I consider, however, that insofar as the decision made by the fifth defendant and Mr Fleetwood to give priority to the trip to Hawaii rather than their attendance at the trial may have any relevance to the trial of this proceeding, whether as to issues of

credibility or otherwise, is a matter which can be left to the trial judge if counsel for
other parties wish to pursue these matters in cross examination.

7           In the circumstances, I consider that the trial can proceed and the evidence of the two witnesses can effectively be received by video link without prejudice to other parties, provided the conditions I have specified in the order are satisfied.

There have been a number of interlocutory matters raised before me, both on 6 May orders I have made against those parties. Ultimately, these are not the main issues in dispute between the parties and it is reasonable, in my view, that the recovery of costs should to some extent depend upon which party is ultimately successful in the proceeding.

- - -

Certificate

I certify that these 2 pages are a true copy of the reasons for decision of His Honour Judge

Anderson delivered on 12 May 2011 (and revised on 13 May 2011).

Dated: 13 May 2011

Hannah Christensen

Associate to His Honour Judge Anderson