The City of Sydney v Streetscape Projects (Australia) Pty Limited
[2011] NSWSC 990
•30 August 2011
Supreme Court
New South Wales
Medium Neutral Citation: The City of Sydney v Streetscape Projects (Australia) Pty Limited & Anor [2011] NSWSC 990 Hearing dates: 25, 29 and 30 August 2011 Decision date: 30 August 2011 Jurisdiction: Equity Division - Commercial List Before: Einstein J Decision: The defendant is granted leave to file the affidavit of Alexander David Rhydderch of 24 August 2011. Pursuant to section 136 Evidence Act 1995 (NSW) the use of the Rydderch affidavit (and the cross-examination of Dr Green on the Rydderch affidavit) is restricted to challenging Dr Green's process of reasoning. The parts of the affidavit not being relied upon for cross-examination are inadmissible for lack of relevance. The inadmissible exhibits are ADR:1:1 to ADR1:4, ADR1:6, ADR:1:8 and ADR1:10 to ADR1:13.
Catchwords: CROSS-EXAMINATION- Fairness and openness in the conduct of litigation- Section 136 Evidence Act Legislation Cited: Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)Cases Cited: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd & Ors [2008] NSWSC 243
Boyes v Colins [2000] WASCA 344
The City of Sydney v Streetscape Projects (Australia) & Anor [2011] NSWSC 847Category: Procedural and other rulings Parties: The City of Sydney (Plaintiff)
Streetscape Projects (Australia) Pty Limited (First Defendant)
Moses Edward Obeid (Second Defendant)Representation: Counsel
Mr T Jucovic QC, Mr S Climpson, Mr C Bova (Plaintiff)
Mr S Couper QC, Mr J Gooley, Mr R Higgins (Defendants)
Solicitors
Holding Redlich (Plaintiff)
Colin Biggers & Paisley (Defendants)
File Number(s): 2009/00298673 & 2010/0085353
Judgment
The current dispute
The current dispute concerns an application by the defendants for leave to rely upon the affidavit of Alexander David Rhydderch, sworn 24 August 2011. Leave was sought after the commencement of Dr Green's cross-examination and towards the end of the plaintiff's case.
The plaintiff opposes the Court granting leave.
As will be apparent from the reasons which follow, the application concerns an important principle which is now clearly established. It is therefore convenient to commence with a discussion of this principle and thereafter to treat with the Court's decision.
In doing so, there are a number of unusual circumstances, which need to be closely examined. It is the case, as sometimes occurs, that particular litigation may bring with it unusual anomalies.
Fairness and openness in the conduct of litigation
In The City of Sydney v Streetscape Projects (Australia) & Anor [2011] NSWSC 847 at [3] I set out the following passage from Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd & Ors [2008] NSWSC 243 (per Allsop P at [161]-[163]):
"The need for clarity, precision and openness in the conduct of litigation and the responsibility of parties and their legal representatives therefore flows most clearly from the statutory duty of a party and his, her or its legal representatives in civil proceedings to assist the court to further the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in dispute and to participate in the process of the Court to that end: see Civil Procedure Act 2005 (NSW) , 56.
An enhanced requirement for clarity and disclosure in modern civil litigation can be seen in Australia and England from at least the early 1990s: see the discussion of the "cards on the table" approach by Ipp J (as his Honour was then) [in Boyes v Colins [2000] WASCA 344]... Indeed, from the late 1970s and early 1980s, the Commercial List of this Court... has been sought to be run on the strict basis of the clear and full enunciation of issues for trial, in a way that has always demanded the fullest co-operation among parties and legal practitioners to delineate and illuminate the real issues in dispute.
The clear statutory duty to assist the Court and in a practical way to co-operate to bring forward the real issues in dispute, encompasses the requirement to be clear and precise in the illumination of the issues for trial. The occasion for this is not merely pleading (using the word broadly to encompass the modern commercial list summons and defence), it extends to all aspects of the engagement in the Court's processes." (emphasis added)
The unusual parameter
The unusual parameter revolves around the plaintiff's contention that in cross-examination the defendants had stolen a march on the plaintiff by not giving the plaintiff nor its relevant expert witness (Dr Green) any advance notice that Dr Green would be cross-examined on a critical area.
The plaintiff rightly takes the point that quite some time ago the relevant experts were required to exchange reports which apparently happened. However it was only after Dr Green had entered the witness box and was being cross-examined by the defendants' counsel, that the defendants cross-examining counsel for the first time, sought to raise questions concerning prior art and its interaction with existing patents.
The solicitors for each party have given their evidence as to how it came about that in the days before Dr Green went into the witness box, the defendants made available to the solicitor for the plaintiff some important documents, in the form of United States patents. Apparently, the plaintiff's solicitor was not alerted to the contents of the documents, so much as they involved United States patents. Further, apparently the defendants were unaware that this was the position in the plaintiff's camp.
As a result, Dr Green commenced in the witness box under cross-examination, before the plaintiff became aware that the defendants would be seeking to cross-examine Dr Green in relation to the contents of the Rhydderch affidavit.
To my mind the defendants are clearly at fault in the circumstances which I have outlined.
However, notwithstanding that being the case, it is still possible for the Court to permit the extant cross-examination to be continued on the following basis:
(1) An order be made pursuant to section 136 of the Evidence Act 1995 (NSW) restricting the use of the Rydderch affidavit (and the cross-examination of Dr Green on the Rydderch affidavit) to challenging Dr Green's process of reasoning; and
(2) The parts of the affidavit not being relied upon for cross-examination are inadmissible as they are irrelevant. The inadmissible exhibits are ADR:1:1 to ADR1:4, ADR1:6, ADR:1:8 and ADR1:10 to ADR1:13
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Decision last updated: 30 August 2011
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