Leigh-Mardon Corporation Ltd v Titan Corporation Ltd [1996] FCA 1196

een No. al ATG LS ae

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY No VG 346 of 1993 GENERAL DIVISION BETWEEN: LEIGH-MARDON PTY LTD Applicant AND: TITAN CORPORATION LTD and OTHERS Respondents

COURT: NORTHROP J PLACE: MELBOURNE

DATE: 19 JUNE 1996

REASONS FOR JUDGMENT

Questions have arisen as to the directions to be given in relation to the method of evidence to be led at the trial. This is going to be a very long case. There are very detailed pleadings. In many respects there are or there is the possibility of 26 different contracts to be examined, construed, and in relation to many of those there may well be conflicts of evidence in circumstances where one of the parties may have trouble in obtaining statements from potential witnesses. In my opinion it is also going to be likely that there could be some real conflicts of fact arising from the witnesses which could lead to difficult questions as to

credibility and who is to be believed.

Normally, in cases of that kind, the Court does receive assistance from the evidence being given orally at the hearing. But that often does involve a waste of time, issues arising constantly on various side issues by way of, for example, privilege, relevance and matters of that kind. So if there is some process by which an indication can be given of the evidence to be led before the case commences it will be of assistance in my opinion to the Court and also to the parties. I see real difficulties in having affidavits or having a mutual exchange of statements of the witnesses, particularly in regard to the problems faced by the respondent from the facts which have been mentioned quite a few times now of the existence of the

criminal investigations.

In all the circumstances it seems to me that the best course to adopt is to direct that there be a mutual exchange of short outlines of evidence of named witnesses which the parties propose to call at the hearing. In cases where an outline of evidence cannot be given for various reasons, for instance the fact that the witness will not co-operate, there should be specified the names of witnesses who are likely to be called by a party but instead of an outline of the evidence to be called, an outline of what will be sought to be proved from each witness. In my opinion there is much to be said for the mutual exchange of those outlines rather than consecutively. If any of those witnesses are not then called at the hearing, I am