Stott v Advanta Seeds Pty Ltd

Whether an extension of time ought be granted to permit the defendant to rely on further evidence

1. It was common ground that I ought not seek to determine the rights or wrongs of the argument about the alleged case expansion by the plaintiff or whether Mr Cunliffe's fourth report contained fresh allegations since these will be matters that will emerge during the trial. Accordingly, both parties asked that I reserve the costs associated with the defendant's application for an extension of time to rely on this evidence.
2. The principal basis on which Mr McNally objected to the additional evidence was that it was said to provide insufficient time for the plaintiff and his expert, Mr Cunliffe, to review and respond to it. Mr McNally submitted that, if the defendant were permitted to rely on the additional evidence, the plaintiff would require an adjournment of the proceedings. Further, he submitted that the period allocated for the hearing of the matter might be insufficient because his cross-examination of the defendant's witnesses would be longer than it would otherwise have been. He estimated that the hearing time would be likely to exceed two weeks.
3. One of the difficulties of determining this application is that the experts have not yet met in conclave to consider the new material, although they have conferred (by AVL) about the issues to be considered based on the material previously served. Therefore it is too early to know whether the new material poses a difficulty for them or whether they can incorporate it in the conclave process and produce a joint expert report which can be provided to the court in time for the hearing. I am not persuaded that it is necessary to adjourn the proceedings, or that the interests of justice make such a course appropriate in circumstances where the experts may well be able to deal with the new material. In these circumstances, I am satisfied that it is appropriate to allow the defendant to rely on the further evidence and to make directions regarding the expert conclave.
4. I note for completeness that it was common ground that it might assist the experts in their conclave to have a third person, preferably a legal practitioner, who could act as a facilitator to help the experts reduce their opinions to writing in a joint report. Such a course is not uncommonly taken with experts who are less familiar with forensic processes. It is to be hoped that the appointment of such a person will shorten the time required by the experts to confer and lighten the burden of preparing the expert report, which would otherwise fall entirely on them.
5. Whether further circumstances will arise which will make it necessary or appropriate to adjourn the hearing of the matter remains to be seen. In the event that such an application is to be made, the parties can avail themselves of the liberty I have granted to them to apply to restore the matter before me at short notice.

Whether named witnesses ought be permitted to give evidence by AVL

1. The defendant adduced unchallenged evidence about the particular circumstances of the witnesses listed in prayer 5 of the notice of motion. Each of the named witnesses is reluctant to travel to Sydney for the hearing of this matter because of fear of contracting or passing on the COVID-19 virus. I am satisfied, in each case, that there are reasonable grounds for the witness's apprehension. Mr McNally opposed the order on the basis that the remote location of the witness will make it more difficult for him to cross-examine the witness to impugn his or her credit or professional competence. He submitted that there were significant forensic advantages of being in the same room as the witness and the judge and that his client would be deprived of that advantage if the witnesses were permitted to give their evidence remotely.
2. It is undoubtedly the case that barristers and judges are generally more comfortable with the time-honoured approach of having a witness present in the courtroom to give evidence in the same courtroom as the barristers and the judge. There are clearly practical advantages to this course in many cases. It is easier to show a witness a document; it is easier to observe the witness's response to a question; and it is easier to observe the reaction of the tribunal of fact (whether judge or jury) to the evidence. However, this procedure comes at a considerable cost. It may be inconvenient and expensive for witnesses to attend court in person. It may be disruptive to their lives. These matters have, in the past, generally been resolved in favour of the administration of justice and against the interests of an individual witness. However, the threat posed by the COVID-19 virus has changed the picture somewhat. Whereas the norm before the virus was that all hearings were conducted in person; the present norm is that all hearings are conducted remotely unless dispensation has been given by the Chief Justice. Presently, hearings in this Court are conducted either by AVL, or in person, or using both methods in a single hearing. The departure from what was once usual practice has demonstrated, to the surprise of many, that a hearing by AVL is not necessarily less effective or less just than one in person. Indeed the magnification of the witness's or judge's face on screen may be advantageous in some cases because of the better vantage point it gives of facial expressions.
3. I am persuaded, on the basis of the evidence of Ms Howell, the solicitor for the defendant, and the submissions of Mr Sirtes, that it is desirable that the named witnesses be permitted to give their evidence remotely. It would not advance the administration of justice if witnesses were required to jeopardise their own health or that of their loved ones by being required to come to court. Even if the risk could be adjudged to be low (as to which I make no assessment), the stress caused to such witnesses is also to be taken into account.

Costs

1. As referred to above, the parties agreed that I ought not make an order for costs on the defendant's application to rely on further evidence. It was this application that took most of the time of the motion, rather than the application that witnesses be permitted to give their evidence by AVL. In these circumstances, I consider the better course to be to reserve the costs of the defendant's notice of motion, rather than to attempt to segregate parts of it.

Orders

1. For the reasons given above, I made the following orders at the conclusion of the hearing and make the additional order as to costs (in order 9) set out below.
2. The Defendant is granted leave to rely on the following Affidavits and Expert Reports served in this proceeding: a. Affidavit of Mr Barry Croker dated 15 June 2020; b. Affidavit of Mr George Barnes dated 9 June 2020; c. Affidavit of Mr Maxwell Douglas dated 18 June 2020; d. Affidavits of Mr Mark Earl dated 10 June 2020; e. Affidavit of Mr Timothy Kirby dated 10 June 2020; f. Affidavit of Ms Julie Mills dated 9 June 2020; g. Two affidavits of Mr Matthew Needham dated 9 June 2020; h. Affidavit of Mr Timothy Rathbone dated 16 June 2020; i. Expert report of Dr Lindsay Cook dated 12 June 2020; j. Expert report of Mr Graeme Smith dated 15 June 2020.
3. The parties' experts are to confer and engage in a conclave by no later than 8 July 2020. The conclave may occur by telephone.
4. The parties' experts are to provide a joint report on matters agreed or disagreed and setting out the reasons for their disagreement by no later than 17 July 2020.
5. The parties, by their respective solicitors, are to communicate to their respective experts by no later 3 July 2020 advising each expert that: a. the experts in this matter are instructed to meet in conclave by no later than 8 July 2020. Conclave may occur by telephone. b. the experts are to prepare a joint report, setting out the matters agreed or disagreed and providing reasons for their disagreement by no later than 17 July 2020.
6. The following witnesses are granted leave to appear at the trial of this matter by audio visual link: a. Mr Mark Earl; b. Mr Matthew Needham; c. Ms Susanne Wuersching; d. Mr Timothy Rathbone; e. Mr George Barnes; f. Ms Julie Mills; g. Mr Timothy Kirby; h. Mr Graeme Smith; i. Mr Maxwell Douglas.
7. Stand the matter over for further directions before me on 20 July 2020 at 9.15am.
8. Grant liberty to restore on 3 days' notice to my associate.
9. Reserve the question of whether the hearing should be adjourned.
10. Reserve the costs of the defendant's notice of motion filed on 26 June 2020.

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