Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 904

New South Wales Supreme Court

CITATION : Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 904

HEARING DATE(S) : 7 August 2007

JUDGMENT DATE : 7 August 2007

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Application to take evidence of witness by video link refused.

CATCHWORDS : PROCEDURE [112] – Supreme Court procedure – Procedure under Rules of Court – Evidence – Other matters – Taking of evidence – Video link – Application to court for leave to take evidence by video link – Earlier application refused – No reason shown to depart from earlier decision.

Mindshare Communications Limited, Taiwan Branch (P) PARTIES : Orleans Investments Pty Limited t/as The Orleans Media Consultancy (D1) Wayne Eckett (D2)

FILE NUMBER(S) : SC 1157/05

COUNSEL : J Priestley, Solicitor (P) K G Odgers (Ds)

SOLICITORS : Allens Arthur Robinson (P) Breene & Breen Solicitors (Ds)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

TUESDAY, 7 AUGUST 2007

1157/05 MINDSHARE COMMUNICATIONS LIMITED TAIWAN BRANCH v ORLEANS INVESTMENTS PTY LIMITED t/as THE ORLEANS MEDIA CONSULTANCY & ANORS JUDGMENT 1 HIS HONOUR: In this matter, which is to be tried before me commencing on 20 August 2007, application is renewed for the evidence of Mr Jonathan Chen, being his cross examination upon an affidavit made by him, to be taken by audio visual link to Taiwan. I say this is a renewed application, because application was made before me on 15 May 2007 for the cross examination of four witnesses, including Mr Chen, to be received by video link. On that occasion, I made orders by which I granted a video link in respect of the evidence of Helen Wang and Peggy Chiu, but not of Jonathan Chen or of Peggy Lee. 2 The application is now renewed in respect of Jonathan Chen on the following basis. Whatever else may be said about Mr Chen's evidence, it will be in small compass and should not, on any estimate given to me today, take more than half an hour to an hour. However, Mr Chen is in a very different situation from Helen Wang and Peggy Chiu, who are outsiders to any of the parties to the proceedings. Mr Chen was, at the relevant time, the chairman of Mindshare Communications Limited ("Mindshare"). He is no longer an officer or employee of Mindshare. But, on the other hand, it is quite clear that he is, on evidence led before me, available to come to Sydney, if required. The objection to bringing him is on the basis of cost, together, as I have said, with the limited nature of his evidence. Also, it is said that, on one basis, there is a possibility that Mr Chen may not be called at all. However, there is nothing clear about this. 3 The factual and evidentiary issues in which Mr Chen's evidence is involved are complicated and it is not possible to thread one's way through them in any realistic way in an interlocutory application such as the present. 4 In my view, the application may be disposed of by my saying that I do not see any sufficient difference between the situation as it was when I rejected the application for Mr Chen's evidence to be taken by video link on 15 May and the situation as it is now, to cause me to depart from the ruling that I then made, that Mr Chen should attend in person to be cross examined. 5 If it turns out that his evidence is not required, and that is by reason of some deficiency in the case or evidence of the defendants, then the matter of costs thrown away by Mr Chen being brought here can be raised in due course. I should say that whilst the cost of bringing him here is in one way not inconsiderable, in another way it is not terribly considerable against the costs overall of this litigation. 6 The plaintiff's notice of motion will be dismissed. 7 Insofar as costs are concerned, I think the best course, on the material as presented to me, is that costs should follow the event of this motion. It did not succeed and the order should be that the plaintiff should pay the costs of the motion. The order for costs may be revisited if Mr Chen comes back to give evidence and, due to some deficiency on the defendants' side, he is not called as a witness. 8 The orders that I make are: (1) I grant leave to the plaintiff to file in court a notice of motion dated 6 August 2007 returnable instanter. (2) I note the undertaking of Mr Arthur to pay the filing fee on or before 8 August 2007. (3) I grant leave to the plaintiff to file in court the affidavit of P J E Arthur sworn 6 August 2007. (4) I order that the plaintiff's notice of motion filed today be dismissed. (5) I order that the plaintiff pay the defendants' costs of the motion.