Cessnock City Council v Bimbadgen Estate Pty Ltd [2011] NSWLEC 136

Land and Environment Court New South Wales

Medium Neutral Citation: Cessnock City Council v Bimbadgen Estate Pty Ltd [2011] NSWLEC 136 Hearing dates: 9 August 2011 Decision date: 09 August 2011 Jurisdiction: Class 5 Before: Pepper J Decision: The application for a witness to give evidence by way of video link refused Catchwords: PROCEDURE: application to adduce evidence by video link - documentary cross-examination - credit of witness in issue - evidence of witness central to proceedings - inconvenience to witness and cost to defendant not as great as suggested - application refused Legislation Cited: Land and Environment Court Rules 2007, r 5.2 Uniform Civil Procedure Rules 2005, r 31.3 Cases Cited: Australian Medical Imaging Pty Ltd v Marconi Medical Systems [2001] NSWSC 651; (2001) 53 NSWLR 1 Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd [2009] NSWLEC 98 Category: Procedural and other rulings Parties: Cessnock City Council (Prosector) Bimbadgen Estate Pty Ltd (Defendant) Representation: Mr T G Howard (Prosecutor) Mr S Nash (Defendant) Mallik Rees Lawyers (Prosecutor) Addisons Lawyers (Defendant) File Number(s): 50195/11

EX TEMPORE Judgment

The Defendant Applies to Have a Witness' Evidence Heard by Video Link 1This is an application for an order that the evidence of a witness for the defendant, Bimbadgen Estate Pty Limited ("Bimbadgen"), be given by video link. 2The witness is Mr John Quirk, a wine and tourism industry consultant who has sworn an affidavit in the proceedings on behalf of Bimbadgen. Mr Quirk was employed as the General Manager of Bimbadgen during the charge period. Mr Quirk gives evidence of the circumstances in which the commission of the offence occurred and the state of mind of Bimbadgen at the time. Suffice it to say that his evidence is significant. 3Cessnock City Council ("the council") has requested that he be available for cross-examination. 4Mr Quirk, however, currently resides in Echuca, Victoria and is no longer employed by Bimbadgen. It is for this reason that Bimbadgen has applied to have his evidence heard by video link at Bendigo Local Court. 5The council does not consent to the application. 6No notice of motion has been filed by Bimbadgen. In light of the imminent sentencing hearing I have dispensed with the need for a notice of motion to be filed. However, such applications should ordinarily be made by notice of motion with an accompanying affidavit in support.