New South Wales Supreme Court CITATION : Arena Management Pty Ltd (Admin App) (Rec & Mgrs App) & Anor v Campbell Street Theatre Pty Ltd [2010] NSWSC 326 HEARING DATE(S) : 1 April 2010 JUDGMENT DATE : 1 April 2010 JURISDICTION : Equity Division Corporations List JUDGMENT OF : Palmer J EX TEMPORE JUDGMENT DATE : 1 April 2010 DECISION : Application refused. CATCHWORDS : PROCEDURE – leave to rely on evidence not served in compliance with Court's directions – no reason to allow evidence to be adduced at such late stage. CATEGORY : Procedural and other rulings Arena Management Pty Ltd (Admin App) (Rec & Mgrs App) (First Plaintiff) PARTIES : Randall Joubert in his capacity as Administrator of Arena Management Pty Ltd (Admin App) (Second Plaintiff) Campbell Street Theatre Pty Ltd (Defendant) FILE NUMBER(S) : SC 2010/290258 COUNSEL : G.P. George (Plaintiffs) D.J. Barnett (Defendant) SOLICITORS : Pateman Legal (Plaintiffs) Fower & Gorcha Lawyers (Defendant) 2010/290258 Arena Management Pty Ltd (Admin App) (Rec & Mgrs App) & Anor v Campbell Street Theatre Pty Ltd JUDGMENT – Ex tempore 1 April, 2010 1 This is an application by Notice of Motion filed in Court now and made returnable instanter for the evidence of two overseas witnesses to be taken by video link. The trial is to start on the next business day of the Court, that is on Tuesday, 6 April 2010. 2 The matter has been set down for a considerable time, the trial having been vacated on two previous occasions. The second of those occasions was at the instance of the Defendant; it was ordered to pay indemnity costs. The issue to which the evidence of these witnesses goes is as to the solvency of the First Plaintiff. 3 On 23 November 2009, Austin J directed the Defendant to file and serve any further evidence upon which it intended to rely by 7 December 2009, and his Honour expressly ordered that no further evidence may be served and relied upon by the Defendants after that date except by special leave. 4 The evidence which the Defendant now seeks to lead is contained in affidavits of the deponents served well after expiry of the date given by his Honour's direction. The first question is, therefore, whether the Court will allow that evidence to be given at the trial. If the Court does not grant special leave to adduce that evidence then of course there is no purpose in the application for evidence to be taken by video link. 5 An affidavit has been filed this afternoon by the solicitor for the Defendant. The solicitor's firm was appointed to act only very recently, namely, 29 March 2010. The solicitor has given evidence as to the great difficulties he has encountered in getting together the necessary papers from the previous solicitors and preparing for trial in the very short time now available. However, there is no evidence at all given, either by the solicitors or by the Defendant, as one would have expected, explaining how it is that the previous directions of the Court for the serving of evidence were not complied with and why it is only now that the Defendant seeks to rely upon this new affidavit evidence. 6 Bearing in mind that this matter has been set down for the third time for trial, that the Defendant has had plenty of notice of the date for trial, and bearing in mind his Honour's express direction as to the serving of evidence by the Defendant, I can see no reason for granting leave to the Defendant to rely upon these further affidavits. Consequently, I can see no point in the application for the evidence of the deponents to be taken by video link. 7 Parties to litigation have an obligation to comply with the Court's directions. Those directions are given in the interests of both parties and in the interests of justice in having matters proceed expeditiously to a final hearing. Unless a party who has failed to comply with directions provides a convincing reason why it should receive some dispensation, that party will not be permitted at the very last moment, at the commencement of the trial, to adduce and rely upon evidence not previously served, or else to have the hearing date vacated because that party is not ready with its case. 8 For those brief reasons, the application to adduce evidence by video link is refused. It will have been evident from these reasons that leave to adduce the late evidence sought to be relied upon in the affidavits filed after 7 December last year is refused also. The trial, therefore, will proceed on 6 April 2010. 9 I order that the Defendants pay the Plaintiffs' costs of this Notice of Motion. – oOo – DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.