Westfield Management Ltd v Perpetual Trustee Company Ltd

[2005] NSWLEC 509

Land and Environment Court

of New South Wales

CITATION:

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.