Westfield Management Ltd v Perpetual Trustee Company Ltd and Another [2005] NSWLEC 509
PARTIES:
APPLICANT Westfield Management Ltd
FIRST RESPONDENT Perpetual Trustee Company Ltd
SECOND RESPONDENT City of Sydney Council
FILE NUMBER(S):
41349 of 2004; 40227 of 2005
CORAM:
Talbot J
KEY ISSUES:
Evidence :- witness to be called to determine whether documents unfairly prejudicial misleading confusing or likely to cause delay - Order pursuant to s 169(1) of the Evidence Act 1995.
LEGISLATION CITED:
Evidence Act 1995 s 135, s 167(c), s 168, s 169(1), s 169(5), s 169(5)(a), s 169(5)(b)
DATES OF HEARING:
11/08/2005
DATE OF JUDGMENT:
08/11/2005
LEGAL REPRESENTATIVES:
APPLICANT Mr T S Hale SC with Miss J M Jagot (Barrister) SOLICITORS Minter Ellison
FIRST RESPONDENT Mr S D Rares SC with Mr S Flanigan (Barrister) SOLICITORS Deacons
SECOND RESPONDENT Mr M G Craig QC SOLICITORS Maddocks
JUDGMENT:
THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
Talbot J
11 August 2005
41349 of 2004 Westfield Management Limited v Perpetual Company Trustee Ltd; City of Sydney Council
40227 of 2005 Westfield Management Limited v City of Sydney Council; Perpetual Trustee Company Limited
JUDGMENT
1 Talbot J: The first respondent has made a request, pursuant to s 168 of the Evidence Act 1995, that a Mr Robertson be called in order to assist the Court to determine the admissibility of documents, being document 137 to 144 (except 141) presently within a bundle comprised within exhibit A4 admitted and marked subject to admissibility. There is said to be a question of admissibility which falls within s 167(c) even though the applicant has limited the issue to which the evidence will be applied as being the issue of discretion in the event that the Court is otherwise persuaded to make an order against the first respondent.
2 There is no real issue that Mr Robertson is available, and indeed I was informed that he was in court yesterday during the course of the argument and it was not indicated to me that there would be any difficulty today if indeed the Court was minded to make an order pursuant to s 169 so that there can be no reasonable cause in the context of availability, convenience or delay within the meaning of s 169(1). It is, therefore, open for the Court to make an order directing the applicant to comply with the request to call Mr Robertson.
3 Section 169(5) sets out a number of matters that the Court is entitled to take into account in the exercise of its discretion under s 169(1). These include the matters referred to in (5)(a) and (5)(b), namely the importance in the proceeding of the evidence in relation to which the request was made, and (b) whether there is likely to be a dispute about the matter to which the evidence relates.
4 It can hardly be gainsaid that there is likely to be a dispute about the matter to which the evidence relates and, although the argument foreshadowed by Mr Hale as to the use the applicant proposes to put the evidence is not a matter that presently persuades me will have a great deal of bearing on the ultimate outcome on the issue of discretion if that arises, nevertheless I am not prepared at this stage to disallow the evidence on the basis that it could be unfairly prejudicial, misleading, confusing or cause a result in an undue waste of time simply because I have not had sufficient development of argument to make an order pursuant to s 135 at this stage.
5 In the circumstances, in order to ensure that the respondent is given a reasonable opportunity to deal with the question of admissibility as contemplated by s 167(c), I propose to make an order pursuant to s 169(1) that the applicant comply with the request to call Mr Robertson.
Details
AGLC
Westfield Management Ltd v Perpetual Trustee Company Ltd [2005] NSWLEC 509
Case
[2005] NSWLEC 509
Decision Date
CaseChat Overview and Summary
Westfield Management Limited, the applicant, sought to determine the admissibility of certain documents, specifically documents 137 to 144 (excluding 141), within a bundle labelled A4. The first respondent, Perpetual Trustee Company Limited, made a request under section 168 of the Evidence Act 1995 that a witness, Mr Robertson, be called to assist the court in deciding the admissibility of these documents. The second respondent, City of Sydney Council, was also involved in the proceedings. The matter was heard by Talbot J in the Land and Environment Court of New South Wales.
The court had to decide whether to order the applicant to call Mr Robertson as a witness to determine the admissibility of the contested documents. This decision hinged on whether the evidence in question could be unfairly prejudicial, misleading, confusing, or likely to cause undue delay, as outlined in section 167(c) of the Evidence Act 1995. The court also needed to consider the factors set out in section 169(5) of the Act, which include the importance of the evidence and the likelihood of a dispute over the matter to which the evidence relates.
The court found that Mr Robertson was available and that there was no reasonable cause for delay or inconvenience in calling him as a witness. The court also concluded that there was likely to be a dispute about the admissibility of the documents. While the applicant's proposed use of the evidence was not persuasive at this stage, the court was not prepared to disallow the evidence on the basis of potential prejudice, confusion, or waste of time without sufficient development of argument. The court decided to exercise its discretion under section 169(1) of the Evidence Act 1995 and ordered the applicant to call Mr Robertson as a witness.
The court made an order under section 169(1) of the Evidence Act 1995 that the applicant, Westfield Management Limited, comply with the first respondent's request to call Mr Robertson as a witness to assist in determining the admissibility of documents 137 to 144 (excluding 141) within bundle A4.