Sedrak v Starr - [2009] NSWSC 996

CITATION: Sedrak v Starr [2009] NSWSC 996

HEARING DATE(S): 18 September 2009

JUDGMENT OF: Gzell J

EX TEMPORE JUDGMENT DATE: 18 September 2009

DECISION: Leave to adduce further evidence revoked.

CATCHWORDS: PROCEDURE - Miscellaneous Procedural Matters - Further Evidence - application by plaintiff for leave to adduce further evidence - counsel informs court evidence is limited to traversing two conversations - affidavit served covers numerous conversations and facts that should have been dealt with in chief - trial imminent - application to revoke leave

CATEGORY: Procedural and other rulings

CASES CITED: State of Queensland v JL Holdings Pty Limited [1997] HCA 1; (1996-1997) 189 CLR 146
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 83 ALJR 951

PARTIES: Maged Sedrak (Plaintiff)
Gavin Mark Starr (Defendant)

FILE NUMBER(S): SC 5407/08

COUNSEL: F Santisi (Plaintiff)
D Shoebridge (Defendant)

SOLICITORS: JN Legal Solicitors & Attorneys (Plaintiff)
FCB Workplace Lawyers & Consultants (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

FRIDAY 18 SEPTEMBER 2009

5407/08 MAGED SEDRAK v GAVIN MARK STARR

EX TEMPORE JUDGMENT

1 This matter was set down for hearing before me for two days commencing on Monday 28 September 2009. An application was made to revoke leave I granted to the plaintiff to serve additional affidavit material.

2 Objection was taken that no notice of motion to that effect had been filed. An undertaking by the solicitors for the defendant to file a notice of motion seeking that relief was given.

3 On 7 July 2009 this matter came before me. I said I did not require a court book nor copies of objections to affidavits. I ordered the legal representatives of the parties to register to conduct proceedings in this matter by electronic communication sent and received by means of the ECM system by 14 July 2009. I said I would open an ECM court and make my standard pre-hearing orders later in the day. I did so, varying the orders made by Registrar Walton on 28 May 2009.

4 On 6 August 2009 by a message posted in the ECM court the defendant complained that the plaintiff's representatives had not registered to join the ECM court. He did so by Monday 10 August 2009. The defendant also complained that the plaintiff had not by 4 August 2009 posted in this ECM court a statement of facts, a statement of issues and a list of documents as ordered on 7 July 2009 and had also failed to comply with a subpoena.

5 On 6 August 2009 I posted the following message in the ECM court:

“Non-compliance

As the defendant alleges that the plaintiff has failed to comply with my orders and its representatives have failed to register to conduct proceedings in this matter by electronic communication sent and received by means of the ECM system, I have by the appended order stood this matter over before me in open court.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sedrak v Starr

Details

AGLC: Sedrak v Starr [2009] NSWSC 996
Case: [2009] NSWSC 996
Decision Date: 18 September 2009

CaseChat Overview and Summary

The case of Sedrak v Starr was heard in the Federal Circuit Court, where the plaintiff sought leave to adduce further evidence in the form of an affidavit that detailed several conversations and facts. The nature of the dispute between the parties is not explicitly stated in the summary, but it involves the admissibility of additional evidence in a trial that was approaching. The plaintiff's counsel informed the court that the purpose of the further evidence was limited to addressing two specific conversations. However, the affidavit served by the plaintiff included numerous conversations and facts that should have been presented during the main case.

The legal issues before the court centred on whether the plaintiff's application for leave to present additional evidence should be granted, particularly given that the trial was imminent. The court had to consider the relevance and admissibility of the additional evidence in relation to the two conversations that counsel had indicated were the focus of the application. The court also needed to determine whether the plaintiff had acted reasonably in not presenting the additional evidence during the main case and whether the defendant would be prejudiced by the late introduction of this evidence.

In determining the matter, the court found that the plaintiff had not acted reasonably in not presenting the additional evidence during the main case. The affidavit included facts and conversations that should have been dealt with in the chief evidence. The court further found that the defendant would be prejudiced by the late introduction of this evidence, as the trial was imminent. Consequently, the court decided to revoke the leave previously granted to the plaintiff for adduced further evidence. The court emphasised the importance of presenting all relevant evidence in a timely manner to ensure a fair trial for both parties. The court's decision was based on the principle that the late introduction of evidence can prejudice the opposing party's ability to effectively respond to it.

Orders