New South Wales Supreme Court CITATION : Sedrak v Starr [2009] NSWSC 996 HEARING DATE(S) : 18 September 2009 JUDGMENT OF : Gzell J EX TEMPORE JUDGMENT DATE : 18 September 2009 DECISION : Leave to adduce further evidence revoked. CATCHWORDS : PROCEDURE - Miscellaneous Procedural Matters - Further Evidence - application by plaintiff for leave to adduce further evidence - counsel informs court evidence is limited to traversing two conversations - affidavit served covers numerous conversations and facts that should have been dealt with in chief - trial imminent - application to revoke leave CATEGORY : Procedural and other rulings CASES CITED : State of Queensland v JL Holdings Pty Limited [1997] HCA 1; (1996-1997) 189 CLR 146 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 83 ALJR 951 PARTIES : Maged Sedrak (Plaintiff) Gavin Mark Starr (Defendant) FILE NUMBER(S) : SC 5407/08 COUNSEL : F Santisi (Plaintiff) D Shoebridge (Defendant) SOLICITORS : JN Legal Solicitors & Attorneys (Plaintiff) FCB Workplace Lawyers & Consultants (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION GZELL J FRIDAY 18 SEPTEMBER 2009 5407/08 MAGED SEDRAK v GAVIN MARK STARR EX TEMPORE JUDGMENT 1 This matter was set down for hearing before me for two days commencing on Monday 28 September 2009. An application was made to revoke leave I granted to the plaintiff to serve additional affidavit material. 2 Objection was taken that no notice of motion to that effect had been filed. An undertaking by the solicitors for the defendant to file a notice of motion seeking that relief was given. 3 On 7 July 2009 this matter came before me. I said I did not require a court book nor copies of objections to affidavits. I ordered the legal representatives of the parties to register to conduct proceedings in this matter by electronic communication sent and received by means of the ECM system by 14 July 2009. I said I would open an ECM court and make my standard pre-hearing orders later in the day. I did so, varying the orders made by Registrar Walton on 28 May 2009. 4 On 6 August 2009 by a message posted in the ECM court the defendant complained that the plaintiff's representatives had not registered to join the ECM court. He did so by Monday 10 August 2009. The defendant also complained that the plaintiff had not by 4 August 2009 posted in this ECM court a statement of facts, a statement of issues and a list of documents as ordered on 7 July 2009 and had also failed to comply with a subpoena. 5 On 6 August 2009 I posted the following message in the ECM court: "Non-compliance As the defendant alleges that the plaintiff has failed to comply with my orders and its representatives have failed to register to conduct proceedings in this matter by electronic communication sent and received by means of the ECM system, I have by the appended order stood this matter over before me in open court. The legal representatives are reminded that a costs order may be made against them personally under the Civil Procedure Act 2005, s 99 and that the rules in relation to contempt of court apply to ECM court proceedings. There is no need for the parties to take out the order. It has been sent electronically to the Registry for inclusion in the Courtnet file." 6 On 10 August 2009 the plaintiff proposed to the defendant that it had until 28 August 2009 to serve additional affidavits, supplement the statement of facts and statement of issues, and have a subpoena addressed to it returned on that day. 7 On 11 August 2009 I made the following orders in open court: "Upon counsel for the plaintiff informing the court that the additional affidavits he wishes to have served are two in number, limited to traversing two conversations, I make orders in terms of the short minutes of order as amended by me, initialled by me, dated by me and placed with the papers. I order the solicitor for the plaintiff to appear before the court at 9.00am on Tuesday 18 August 2009 to show cause why he should not be dealt with for contempt and why he should not personally pay the costs of today's hearing and that on 18 August 2009 for his failure to comply with orders of the court made on 7 July 2009. I reserve the costs of today's hearing. I stand the matter back into the ECM court." 8 The short minutes of order were in the following terms: "1. That the plaintiff file any further evidence in reply or response to the cross-action by 21 August 2009. 2. That the plaintiff cross-defendant supplements the statement of issues and statement of fact by 21 August 2009 and file and serve those by 21 August 2009. 3. That the defendant's subpoena be stood over to 21 August 2009. 4. Leave be granted to the plaintiff to file and serve subpoenas made returnable on 4 September 2009." 9 On 18 August 2009 in open court I accepted apologies and ordered the plaintiff to pay the costs of that day and of the hearing on 11 August 2009. 10 On 24 August 2009 I granted the plaintiff an extension of time. I made the following orders: "1. I vacate the orders in the short minutes of order made on Tuesday 11 August 2009. 2. I order the plaintiff to serve any further evidence in reply or response to the first cross-claim by no later than 5.00pm on Monday 24 August 2009. 3. I order the plaintiff to file and serve any supplement to the statement of issues and statement of facts by no later than 5.00pm on Monday 24 August 2009. 4. I stand the defendant's subpoena addressed to the plaintiff over to 24 August 2009. 5. I grant leave to the plaintiff to file and serve subpoenas made returnable before the Registrar at 9.00am on Friday 4 September 2009." 11 On Monday 31 August 2009 I set out the orders that had been made on 11 August 2009 on the request of the plaintiff. 12 On 1 September 2009 the defendant alleged that the material served by the plaintiff went beyond the limited scope to which reference is made in the orders. On 2 September 2009 I stood the matter over before me in open court, making this observation in the ECM court: "Since the defendant alleges that the affidavits served by the plaintiff go beyond the matters counsel for the plaintiff indicated to the Court on 11 August 2009, I have by the appended order stood this matter over before me in open court when I return from leave. There is no need for the parties to take out the order. It has been forwarded electronically to the Registry for inclusion in the Courtnet file." 13 By the posting of that notice the plaintiff was put on notice as to the nature of the application that would be made in court today. 14 By letter dated 24 August 2009 there was served upon the solicitors for the defendant an affidavit of Maged Sedrak of 24 August 2009. At paragraph 4 of that affidavit a number of documents were annexed. It was submitted that this paragraph had utility, although it did not address either of the conversations to which counsel had referred, because these were the documents that the defendant had required under subpoena and while the subpoena had not been answered, it was submitted that the paragraph had the utility of providing those missing documents. 15 At paragraph 6 of the affidavit reference was made to a conversation had between 28 August 2008 and 8 September 2008 with Mr Starr. That is one of the conversations to which reference was made by counsel on 11 August 2009. The other conversation is one with Mr Chan. But the affidavit goes on to refer to a further conversation with Mr Starr in paragraph 8, another conversation with Mr Starr in paragraph 8 and a third conversation with Mr Starr in that paragraph. At paragraph 11 there is deposed a further conversation with Mr Starr. At paragraph 12 there commences a reply to the affidavit of Mr Chan with reference to a conversation with Mr Starr that is repeated. Thereafter, there are background facts and circumstances referred to in paragraphs up to paragraph 47, including further conversations at paragraph 29, paragraph 35, paragraph 38, paragraph 40 and paragraph 47. From paragraph 48 there is a reply to the affidavit of Mr Starr, including reference to conversations at paragraphs 50, 51 and 53. 16 It was submitted that counsel had not indicated the manner in which the two conversations were to be traversed. It was submitted that the affidavit put those two conversations in context by swearing to the factual circumstances that existed prior to the conversations, and upon that basis the conversations should be construed. 17 In my view the affidavit is not limited to traversing the conversations as had been indicated by counsel. The material in the affidavit ought to have been put on in chief. It is now too late to remedy the situation and in my view the appropriate course to preserve a hearing on 28 September 2009 is that leave to serve the affidavits should be revoked. 18 The considerations such as a lack of prejudice to which reference was made in State of Queensland v JL Holdings Pty Limited [1997] HCA 1; (1996-1997) 189 CLR 146 in considering applications for amendment of pleadings or adjournment of proceedings has been superseded by the High Court decision in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 83 ALJR 951. At [114] the majority pointed to the recognition in the ACT equivalent of s 56(1) of the Civil Procedure Act 2005 of case management by the courts. It recognises that delay and costs are undesirable and that delay has deleterious effects not only upon the party to the proceedings in question, but to other litigants. 19 Those considerations apply equally to the instant application. 20 Upon the solicitors for the defendant undertaking to file a notice of motion seeking the following relief, I vacate paragraph 2 of the orders made by me on 24 August 2009. I order the plaintiff to pay the costs of and incidental to today's hearing. I stand the matter back into the ECM court. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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