Weeks v Bell

[2025] QDC 24

DISTRICT COURT OF QUEENSLAND

CITATION:

Weeks & others v Bell & another [2025] QDC 24

PARTIES:

ASHLEY WILLIAM WEEKS
(First Plaintiff)

AND

DEBBIE ANN WEEKS
(Second Plaintiff)

AND

ADBKJ PTY LTD (ACN 633 170 877) AS TRUSTEE FOR THE WEEKS FAMILY TRUST
(Third Plaintiff)

v

SUE MAREE BELL
(First Defendant)

BELLS BEACHSIDE REALTY PTY LTD (ACN 145 703 813)
(Second Defendant)

FILE NO/S: 

3284/23

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court

DELIVERED ON:

4 March 2025 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

4 March 2025

JUDGE:

Porter KC DCJ

ORDERS:

1. Application to give evidence by iPhone refused.

COUNSEL:

B.W Wacker for the plaintiffs

SOLICITORS:

Marino Law for the plaintiffs

S. Chau of Carthew Chau & Co for the defendants

1. Possibly for the first time in my judicial career, I am dismissing an application that a party to proceedings be granted leave to give evidence remotely. 

2. The application was made orally by the first defendant’s solicitor, Mr Chau at the start of the second day of the trial, after completion of the plaintiffs’ case on day one.  Initially, he made an oral application that the first plaintiff (Ms Bell) be granted leave to give evidence by telephone.  Subsequently, after he gave some evidence in support of the application, he amended the application to request that Ms Bell be given leave to give evidence by iPhone, that is, by some form of video conferencing facility on an iPhone, whether it be Facetime, Skype or some other such platform.  His application was not clear on that mode to be used.

3. The applicant starts the application holding some important cards (which is an appropriate metaphor for this kind of situation, even if it is not appropriate for European politics).  Those cards are:

   (a)Ms Bell is the first defendant in the case;

   (b)She is the principal witness for the defence; and

   (c)There is, pleaded in the defence, an alternative version of events, which might provide an answer to the plaintiffs’ claims if proved at trial. 

4. It is, however, the law still that the starting position is that a witness in proceedings, civil or criminal, (subject to a couple of limited exceptions), gives evidence in person in the witness box.  The onus lies on the party seeking an exception from that general rule to persuade the court it should divert from its ordinary procedure.

5. It is my experience that in practice, the weight of that onus has become relatively light in most cases.  Even cross-examinations challenging credit, if done by video link with proper provision for a fair cross-examination process, can be done quite effectively.  However, the grant of leave to attend by video link is a discretion, and there will be cases where leave should not be granted, rare though they might have become in practice.  Exceptionally, this is one of them.

6. The circumstances arise broadly in this way.  These proceedings are between Mr and Mrs Weeks and their trustee company against Ms Bell and her company, Bells Beachside Realty Pty Ltd. 

7. In broad terms, the plaintiffs’ case is that:

   (a)They entered into an oral agreement to acquire 40 per cent of the shares of the company, for $300,000 in about February 2018; 

   (b)They thereafter advanced that money in 16 tranches over a period of about 10 months, or a little more, 12 months; and

   (c)Efforts were made to document the contract through Mr O’Neill, solicitor for the defendants, and later Mr Brett, of another firm, who was acting for the plaintiffs.

8. That documentation process never resulted in a signed written contract.  The plaintiffs submit that either:

   (a)A contract did come into existence, substantially, on the terms of the written document; or

   (b)A binding agreement arose from the oral agreement; or

   (c)There was no certain agreement at any stage, and that restitutionary remedies flow.

9. The gravamen of the defence is that Mrs Weeks reached two oral agreements with Ms Bell that dealt with the advances.  The advances are not in dispute.  The defence case is that:

   (a)There was an oral agreement that the Weeks would fund the salary of their son if he was taken on as a full-time employee, and that accounted for $180,000 of the advances, more or less; and

   (b)There was also another oral agreement, that the Weeks would lend money for the use of the company as and when they could, with such lending to be repayable on demand.

10. The other important part of the case is that the rent roll, which was either the subject of the contract or a substantial component of the subject matter of the contract, was in part or in whole sold to another real estate agent in about late 2019, early 2020.

11. It is said by the plaintiffs that conduct was repudiatory.  Other conduct was also relied on in that regard.

12. There is also a misrepresentation case, based on a figure contained in rent roll documents provided at a meeting which seems like it must have occurred in about February 2018, although it is difficult presently to extract the representation alleged in the pleading from that document and the evidence that has been given about it. (Note: Ultimately that was not pressed in final submissions.)  

13. I now turn to Ms Bell.  In the manner particularised in submissions by Mr Wacker for the plaintiffs, the issue of Ms Bell being present to give evidence was raised at least a couple of weeks before the trial.  Mr Chau indicated yesterday that Ms Bell was not in Brisbane and he had first indicated that possibility to the Court about two weeks ago at a hearing on 21 February.  When that was raised, Mr Wacker for the plaintiffs indicated that if Ms Bell sought to give evidence remotely, the plaintiffs would require an application supported by affidavit material.   

14. There might be cases where a Judge might make clear that such formalities were not required for an application for leave to give evidence remotely, but that is not this case. 

15. The reason for that is that this matter is a commercial list matter managed by me.  It was set down for trial by me in early November last year (long before Mr Chau’s appearance on the record). 

16. What is apparent from the evidence that Mr Chau gave in the witness box in support of Ms Bell’s application is that, so far as he knows, Ms Bell is on her honeymoon on a boat in New Zealand.  There seems to be little chance that someone could suddenly, and without warning, find themselves on their honeymoon on a boat in New Zealand.  The overwhelming inference is that Ms Bell chose, some time ago, to ensure she would not be here to give evidence.

17. That is a very substantial factor telling against granting leave.  The courts are not in the same position as an ordinary service provider, who you can cooperate with or not at your will.  Legal proceedings involve the exercise of the judicial power of the State to quell disputes between parties fairly.  If a defendant does not take their responsibilities to participate in that process seriously, it is difficult to see why the Court should make allowances to facilitate their participation in a trial.

18. Apart from that policy consideration, though, the particular circumstances of this case tell against giving leave.  Not only did Ms Bell plainly decide to make herself unavailable to be here, but the evidence of Mr Chau on instructions is that she was not able to obtain a quiet place where she would be able to give evidence by video link with a computer.  The necessity for a quiet, closed room is perhaps obvious, but given the circumstances of this case, it was particularly important for the court to have confidence in the integrity of the remote evidence process.  All the more so given that Ms Bell chose not to make herself available for the trial in person. 

19. There is another consideration and that is this.  One of the eternal difficulties that people perceive with cross-examinations by remote access is to be able to cross-examine effectively on documents.  Where the court computer system is used using Teams or Webex, or some other platform, the Court has facility for, amongst other things, documents to be shared in cross-examination by the imager.  That process, as I have observed many times, is quite effective. 

20. The best it seems that might be able to be done in this case is for Ms Bell to give evidence on an iPhone, not something which she volunteered as a possibility, but which Mr Chau in the course of being cross-examined by Mr Wacker confirmed might be possible in theory.  However, I have no confidence at all based on a good deal of experience in using different kinds of platforms that the effective sharing of documents will be possible on such a platform or on a mobile phone.  That is another matter which tells strongly against giving leave, especially where it is evident to me from having heard all the evidence to date that this will be a good, old-fashioned challenge to not just reliability, but probably credibility as well. 

21. Another significant factor is that Mr Chau was only retained on 10 February 2025.  He has never met his client.  He has never seen his client.  He has had contact with her by email and telephone calls.  (That is not to suggest that Mr Chau hadn’t gone through the appropriate steps to identify his client and to take instructions.)  Mr Chau is representing the defendants for little, if any, recompense.  He is not a litigation solicitor.  He has done his best and the court is grateful for his presence.  Nothing in this judgment is meant to be a criticism of him personally. 

22. However, it was made clear yesterday by me that Mr Wacker’s request for an opening of Ms Bell’s evidence was one which was a reasonable request in that, so far as possible, her evidence should be opened. 

23. Mr Chau did his best to open Ms Bell’s evidence based on such instructions as he had.  Nevertheless, a good deal of what is in the defence was not opened and I find I am unpersuaded that Mr Chau is aware of the detail of the evidence which Ms Bell proposes to give. And in respect of some parts of the defence, he seems to have no instructions at all.  Again, that is not a criticism. 

24. There is another factor.  Mr Chau says, and I accept, that he made clear early on in his retainer, that Ms Bell would need to be here for the trial.  A little time after when that matter came up in a telephone conversation, Ms Bell said – and I quote Mr Chau’s evidence –, “Oh God, darling, I told you I’m going to be on this cruise”.  Mr Chau said he did not recall being told that and would have recalled it if he had been so told. 

25. There is another factor.  Mr Chau was in a difficult position.  But when I asked him if there was anything else – notwithstanding I reminded him not to disclose legally privileged communications – he wanted to add, he expressed what I think was his own view that his client has been avoiding the trial.  Mr Chau also gave some evidence about telling Ms Bell about the need for the video link, and I think it is fair to characterise Ms Bell’s responses as reported in evidence by Mr Chau as dismissive. 

26. Further, there is another witness who Mr Chau has reason to believe will give evidence supportive of at least part of the defence case.  (Note: Mr Rowe who later gave evidence in support of the alleged wages agreement).

27. I invited Mr Chau to give evidence in the witness box to put a formal structure around the evidence in support of the application since no application on proper material was able to be produced.  I formed the impression Mr Chau thought that, in the absence of a formal application on sworn material, he could not seek leave for remote evidence.  I disavowed him of that notion, but thought it fair to Mr Wacker’s clients that Mr Chau give evidence in the witness box so there would be a formal structure to his evidence and Mr Wacker could cross-examine.  It is not in any way a reflection on my faith in Mr Chau’s honesty.

28. Ultimately, both because of the attitude that the first defendant has taken to this matter, and to my view that a fair cross-examination could not occur in the circumstances which she brought about, I am going to refuse leave to lead evidence remotely. 

29. I want to add one other matter.  There is other evidence that Ms Bell has been substantially motivated by a desire to avoid this case, rather than recognise her obligation to participate in it. 

30. On the Friday before the trial started, she purported to file a debtor’s petition.  I say purported because I have not seen in evidence before me material which demonstrates that a debtor’s petition, properly prepared, has been filed, although there is some suggestion of that. 

31. There is no reason that I can imagine for that being done at that time, apparently while on the cruise the day before the trial, except to attempt to frustrate the trial of the proceedings in this court against Mr and Mrs Weeks.  It is not a necessary factor, but it is a factor which I take into account as reflecting the attitude of the defendant to the trial.