Lendlease Communities (Figtree Hill) Pty Ltd v Mount Gilead Pty Ltd (No 2)

Legislation Cited: Evidence (Audio and Audio Visual Links) Act 1998 (NSW)

Category: Procedural rulings

Parties: Lendlease Communities (Figtree Hill) Pty Limited (First Plaintiff/Applicant)
Lendlease Communities (Australia) Limited (Second Plaintiff/Applicant)
Mount Gilead Pty Limited (First Defendant/Respondent)
Mount Gilead (Access) Pty Ltd (Second Defendant/Respondent)

Representation: Counsel:
D A Hughes / A Carr (Plaintiffs)
B Coles KC / M Castle / B Haines (Defendants)
Solicitors:
King & Wood Mallesons (Australia) (Plaintiffs)
Woolf Associates (Defendants)

File Number(s): 2024/423110

EX TEMPORE JUDGMENT (REVISED)

1. This matter is part-heard. The hearing started on 5 and 6 March 2025. On that occasion, the plaintiffs proposed to call two witnesses, Ms Ranisha Clarke and Mr Mark Anderson, both of whom are employees of the plaintiffs and have made affidavits in the proceedings.

2. At that stage, the defendants had given the plaintiffs notice that both Ms Clarke and Mr Anderson were required to be cross-examined at the hearing. For various reasons, the hearing on 6 March was adjourned and fixed for further hearing next week, Tuesday 1 and Wednesday 2 April 2025.

3. Prior to the 5 and 6 March hearing dates, Ms Clarke made arrangements and paid to travel to New York between yesterday, 26 March, and 11 April for reasons unrelated to her employment.

4. Also, prior to 5 and 6 March, Mr Anderson made arrangements and paid to travel to the Gold Coast between this coming Saturday, 29 March, and 6 April for reasons unrelated to his employment.

5. The plaintiffs’ solicitors were not aware of these matters when the revised hearing dates were set. In view of the Court's diary, it may well be that no date could have been set that would have been able to accommodate Ms Clarke’s and Mr Anderson's travel plans.

6. Now, by Notice of Motion filed on 25 March 2025, the plaintiffs seek leave to adduce evidence from Ms Clarke and Mr Anderson via audio visual link. [1]

7. There was no contest that Ms Clarke should give her evidence that way.

8. However, the defendants oppose Mr Anderson giving evidence via audio visual link.

9. Mr Anderson is a critical witness for the plaintiffs. He has given evidence of concerning a central factual matter, namely, the evolution of the plaintiffs' subdivision of the Balance Land, as defined in the Deed the subject of these proceedings, and was, and most critically, involved in changes made to that plan in April and May 2024. The circumstances in which all that occurred is central to one of the issues I have to resolve.

10. There is no question of Mr Anderson's credit being impugned. However, Ms Castle informs me, and from my understanding of the case I can readily accept that, his cross-examination will be a document-heavy exercise and will involve him being taken to a considerable number of plans of the relevant development and being asked questions about the evolution of those plans. Ms Castle informs me that Mr Coles KC, who will be conducting the cross-examination, may well deploy documents which he would not wish to reveal to Mr Anderson before the cross-examination commences.

11. It is not necessary for me to set out in these reasons the particular reason Mr Anderson is in Queensland. I accept that were he required to return to Sydney to give evidence he will be inconvenienced and the result will be unsatisfactory from his point of view.

12. I do, however, take with a grain of salt the suggestions in the evidence that he would have to bear the costs of a return to Sydney.

13. It is true that, during the pandemic, the experience of the Court, and I venture to suggest the profession, was that the taking of evidence by the audio visual means, even in documentary cases, is manageable. However, there are intangible and often very real advantages for the cross-examiner, and the Court, for the evidence to be given in-person, especially in a case like this where careful examination of the evolution of the plans of the relevant subdivision will be critical to the resolution of the case.

14. I contemplated the possibility of permitting the cross-examination to take place by audio visual means on the basis that if Mr Coles informed me that he did not think he could properly discharge his obligations to his client by that means, then the matter would stand adjourned. On reflection, I think that is not an appropriate way to proceed for a number of reasons; one of which is that it is in the interest of these parties that these matters be resolved, one way or the other, in the near future; and a further aspect is that there is a limit to the time that the Court can allocate to any one set of proceedings.

15. I propose to make an order permitting Ms Clarke's evidence to be taken by audio visual means, but I decline to make an order in relation to Mr Anderson. He will have to travel to Sydney to give evidence in the usual way.

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Endnote

Pursuant to Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B.