Business & Professional Leasing Pty Ltd v Akuity Pty Ltd of Brown & Benson Pty Ltd & Ors [2007] QDC 48

DISTRICT COURT OF QUEENSLAND CITATION: Business & Professional Leasing Pty Ltd -v- Akuity Pty Ltd of Brown & Benson Pty Ltd & Ors [2007] QDC 048 PARTIES: BUSINESS & PROFESSIONAL LEASING PTY LTD ACN 001 436 522 Plaintiff V AKUITY PTY LTD ACN 071 202 947 First Defendant AND GRAHAM BRUCE GILLION Second Defendant AND AKUITY PTY LTD ACN 071 202 947 Plaintiff by Counterclaim AND BUSINESS & PROFESSIONAL LEASING PTY LTD ACN 001 436 522 First Defendant by Counterclaim AND MACQUARIE HEALTH CORPORATION LTD ACN 003 531 860 Second Defendant by Counterclaim FILE NO/S: 336 of 2006 DIVISION: Civil Jurisdiction PROCEEDING: Application ORIGINATING COURT: District Court Southport DELIVERED ON: 26 February 2007 DELIVERED AT: District Court Southport HEARING DATE: 26 February 2007 JUDGE: Kingham DCJ -- 1 of 5 -- 2 ORDER: 1. Trial date is to remain as listed. 2. Application denied. 3. The plaintiff is to pay the first and second defendants' costs of the application to be assessed, if not agreed. CATCHWORDS: CIVIL TRIAL – Pre-trial Order – Where evidence of the plaintiff is proposed to be given via video-link from the United States of America – Where plaintiff’s evidence is of central importance – Where plaintiff is required for cross- examination – Where logistical difficulties and expenses to be incurred. CIVIL TRIAL – Pre-trial Order – Where plaintiff’s delay in bringing the application – Where balance of discretionary factors and interest of justice. CIVIL TRIAL – Pleadings – Where pleadings and issues not yet settled in preparation for trial. Uniform Civil Procedure Rules 1999 (Qld) ASIC v Ridge (2004) 49 ACSR 578 – applied COUNSEL: C. Wilson for the Plaintiff M.Hindman for the First Defendant and Second Defendant SOLICITORS: Provest Law for the Plaintiff Dibbs Abbott Stillman Lawyers for the First Defendant and Second Defendant HER HONOUR: This is an application by Business and Professional Leasing Pty Ltd for a number of orders. 1. Pursuant to rule 466(b) of the Uniform Civil Procedure Rules that the trial of this matter set down for 1 and 2 March 2007, proceed. 2. Pursuant to rules 367 and 392 of the UCPR, the plaintiff be permitted to adduce evidence at the trial of these proceedings from the witness David Wenkart by video-link. 3. That the first defendant/plaintiff by counterclaim and the second defendant pay the costs of the plaintiff of the application. As to the first order, the trial is listed for those dates and an order seems unnecessary. In the absence of an application to adjourn, then the trial will proceed as listed. The application to take evidence by video-link is made pursuant to r392 and any necessary directions are sought, pursuant to r367. In considering whether to grant such an application, each case must be assessed on its merits and having regard to the interests of justice. The parties agree that the considerations identified by Austin J in ASIC v Ridge are relevant. They include costs, appropriateness of facilities for centrally important evidence, assessment of credit, difficulties relating to the use of documents during cross-examination, technological difficulties in transmission and difficulties where cross-examination may be lengthy. The exercise of the power that is -- 2 of 5 -- 3 sought to be invoked is a discretionary one and other factors may, of course, bear upon whether it is appropriate to grant leave to adduce evidence in this way. The plaintiff concedes the evidence of Mr Wenkart is of central importance. Its counsel, Mr Wilson, submitted that, absent other factors, the fact the evidence is of central importance does not tell against reception of audio-visual evidence and that is not controversial. I accept that with sufficient time any logistical difficulties could be overcome. After the hearing this morning and immediately before I delivered this decision, I was advised by the solicitor for the plaintiff that certain discussions had taken place between the parties this afternoon. It appears some progress was made in dealing with some of the issues that I will refer to in this Judgment, including logistical issues. I accept that the estimated length of evidence is moderate and that is a factor in favour of making the orders sought. I also note the plaintiff's undertaking to pay the costs of the video-link including the costs of an independent observer, those costs to be payable by the plaintiff, regardless of the outcome of the trial. That also is an important factor weighing in favour of granting the orders sought. However, the defendants' counsel Ms Hindman, has persuaded me that the combination of factors in this case are such that the order should not be granted and those factors are as follows. 1. Mr Wenkart's relationship to the Plaintiff and Defendants by Counter-claim By virtue of the positions he continues to hold in both companies, the witness is, in effect, the plaintiff and the first and second defendants by the counterclaim. His inability to attend on the listed dates is not questioned. However, given his positions, his unwillingness to do so is, I believe, a relevant factor in weighing up whether I should exercise a discretion in his company’s favour. Ms Hindman is right to note that Mr Wenkart has not indicated whether he would be willing to attend at another time. 2. The significance of Mr Wenkart's evidence Mr Wenkart's evidence is of central importance, but, more importantly, there are issues of credit raised by the pleadings, at least as they currently stand, beyond that identified by Mr Wilson. Specifically, the defendant relies on a number of conversations to which Mr Wenkart was a party. Mr Wilson has indicated that only one will be in issue but at the time that I prepared these reasons, no pleading to that effect had been filed. I now understand that a further exchange has occurred and that an Amended Reply and Answer has been delivered. However, I have not been advised what the effect of this is in relation to the submissions made by Mr Wilson and by Ms Hindman. Nor has a copy been provided to me. Further, the defendant alleges that Mr Wenkart knew at the time the relevant documents were entered into, that the defendants were mistaken as to certain matters and this pleading means Mr Wenkart's credit as a witness is likely to be of particular significance to the outcome of the proceedings. -- 3 of 5 -- 4 3. The Plaintiff's delay The plaintiff has been tardy in bringing this application. The trial dates, albeit reserve dates, were set on the 8th of December 2006. Even then it appeared Mr Wenkart's ability to attend was in question. The defendants were directed to respond to a request to consent to Mr Wenkart's evidence being given by telephone by the 18th of December. That they did, and in the negative. The orders made on the 8th by his Honour Judge Rackemann also gave the plaintiff leave to file an affidavit to vacate the trial dates if the consent was not forthcoming. It did not take advantage of that order. It was not until the 24th of January this year, it appears after some correspondence from the defendants' solicitors about matters of pleadings, that the option of audio- visual evidence was raised by the plaintiff. The defendants responded promptly. On the 2nd of February their solicitors advised they did not consent to evidence in that form either. The plaintiff immediately filed this application and was given a listing for today, only three days before the trial was due to commence. However, Mr Wilson offered no explanation for the delay in serving the application on the defendants. It was not served until the 18th of February, more than two weeks later. Valuable time for the parties to consider their position and to attempt to settle the issue was, therefore lost. I think the progress that has been made this afternoon during discussions between the solicitors is some evidence of what may have been achieved had the application been served earlier. Further, when the application was served, the supporting material was not. Upon the defendants' prompting, an affidavit was served at around 7.30 p.m. last Wednesday night; the other two affidavits were served today. Whilst these issues do not go to the appropriateness of evidence being given by video-link, they are, I consider, relevant for me to take into account in the exercise of a discretionary power. Mr Wilson made the somewhat extraordinary submission that the defendant should have anticipated this application and done something to prepare for it. I reject that entirely; this is the plaintiff's application, it is for the plaintiff to advance its cause, not for the defendant to anticipate and facilitate it. The defendants gave a timely response to the requests to consent to evidence by telephone and by video-link and requested the necessary information about this application when that should have been provided by the plaintiff without request. 4. The state of the Pleadings At the time this matter was argued before me, the pleadings had not been finalised. Mr Wilson indicated that the plaintiff intended to serve an amended Reply and Answer to the Amended Defence and Counterclaim. He did not say when that would be delivered. It appears from the evidence before me that, until today, the defendants were not aware that such a pleading would be delivered despite their solicitor's request for advice as to the plaintiff's intentions on the 23rd of January 2007. I now understand that a Reply has been delivered. -- 4 of 5 -- 5 Further, at the close of hearing, Mr Wilson indicated that there was an issue with particulars which was not yet resolved which I may be called to rule on. It now also appears that that is no longer an issue. Until the particulars are provided, what will be in issue at the trial has not been finally determined. The final state of the pleadings and particulars may well have a bearing on the documents that Ms Hindman will choose to put Mr Wenkart. 5. Logistical issues This has obvious implications for arrangements to convey the necessary material to New York, where Mr Wenkart will be to give evidence on Thursday, should the trial proceed. I accept Ms Hindman's submission that it is reasonable to require an observer to be present when Mr Wenkart gives evidence to ensure there can be no suggestion his evidence has been tainted by any off-camera communications or instructions. It is relevant, therefore, to consider the logistical difficulty in arranging an agent at short notice, given the time zone differences and the many other matters that need to be attended to before trial. Again, I note the progress that the solicitors have made in an effort to facilitate this. It does not appear that there are any particular technological difficulties with the facilities proposed by the plaintiff. That, though, is not certain, as the defendant has not had the opportunity to investigate the information provided by the plaintiff today. 6. Costs to Mr Wenkart Whilst Mr Wenkart will surely incur substantial costs coming to Australia for the trial, it is his companies that have invoked this Court's jurisdiction. I do not consider the relative expense of Mr Wenkart giving evidence by video-link compared with him appearing in person, is of any assistance in making this decision, especially given much of that cost would not, in any case, be recoverable should he succeed at trial. On balance, upon consideration of those factors and taking into account the progress that has been made by the parties this afternoon and that the defendants, despite that progress, maintain their objection, I do not consider I should exercise the Court's discretion to make the orders sought. ... HER HONOUR: Given the history of this application in the context of the previous directions as to the telephone evidence, it is appropriate that the defendants' costs are met by the plaintiff. I order that the plaintiff pay the first and second defendants' costs of the application to be assessed if not agreed. -- 5 of 5 --