Supreme Court New South Wales Medium Neutral Citation: Permanent Custodians Ltd v Geagea [2013] NSWSC 413 Hearing dates: 15/04/2013 Decision date: 15 April 2013 Jurisdiction: Common Law Before: Garling J Decision: (1) Grant leave to the second and third defendants to file and serve the affidavits of Charbel Geagea sworn in April 2013; the affidavit of Donna Andary of 21 March 2013; and the affidavit of Ray Andary of 21 March 2013. (2) Order that the fourth to sixth defendants file any evidence in reply by 4pm 30 April 2013. (3) Order the second and third defendants to pay the fourth to sixth defendants' costs of the application, including 10 and 15 April 2013. (4) Reserve liberty to apply on three days' notice. Catchwords: PRACTICE AND PROCEDURE - application pursuant to a court order for leave of the court to be obtained for service of any intended evidence - whether evidence that is permitted to be filed and served upon can later be relied upon is a matter for the trial judge. Category: Procedural and other rulings Parties: Permanent Custodians Limited (P) Tony Geagea (D1) Charbel Geagea (D2) David Geagea (D3) Phillip Howard Symonds (D4) Christopher James Swanson (D5) Terence Ledlin Edmund (D6) Representation: Counsel: M Wirth (P) S Levitt (D2-D3) E Patrick (D4-D6) Solicitors: Kemp Strang (P) Levitt Robinson Solicitors (D2-D3) Ebsworths (D4-D6) File Number(s): 2005/269110 ex tempore Judgment 1This is an application by the second and third defendants, Charbel and David Geagea, for leave to serve and rely upon three affidavits. 2Leave is necessary, because in May of 2012, Davies J ordered that all evidence upon which the second and third defendants wish to rely be served by 15 June 2012 and that no further evidence was to be relied upon without leave of the court. That order followed a history of serial non-compliance by the second and third defendants with orders for the filing of evidence. 3The three affidavits which are now sought to be relied upon are firstly, the affidavit of the second defendant, Charbel Geagea. This affidavit can be quickly dealt with. The witness has been in prison in Lebanon until April 2012. He has not been readily able to be contacted, and has only recently been contacted and has provided an affidavit. Neither the plaintiff nor the fourth to sixth defendants object to this affidavit being served out of time, nor to reliance being placed upon it. 4The second and third affidavits which are sought to be relied upon are those of Raymond Andary, sworn 21 March 2013, and his sister Donna Andary of the same date. These witnesses depose to of the events taking place during a meeting on 23 June 2003 involving Mr Phillip Simons, the relevant solicitor, who together with his partners are sued as the fourth to sixth defendants. 5The explanation which is proffered for the late service of these affidavits is that the existence of these witnesses and their statements did not come to the attention of the solicitors for the second and third defendants until they were provided with material in November 2012 by the first defendant. 6The material provided in November 2012 by the first defendant was quite voluminous, and it took a little while to examine that material. It appears that the statements were shown to the solicitor for the plaintiff and his counsel in November 2012, and copies of the statements were made available to the solicitor for the fourth to sixth defendants in January 2013. 7It is regrettable that the existence of these statements was unknown before November 2012, but it seems to me that the second and third defendants have given an adequate explanation about how these have come into existence very late in the proceedings. The delay between the provision of the statements from which the affidavits were drafted and the affidavits themselves is of no particular moment. It is in the interests of justice that the second and third defendants should be allowed to rely on this evidence. 8Whether or not these affidavits ought be admitted into evidence at a hearing will be a matter for the trial judge. Clearly, the fourth to sixth defendants will wish to take objection to the form and content of the affidavits, and that is a matter that can be ruled upon at the hearing in the ordinary course. 9The fourth to sixth defendants submit that they will need an opportunity to respond or at least attempt to respond to these affidavits. A response may be difficult because of the length of time which has passed since the conference, the subject of the affidavits, was held, about ten years. However, whether or not the fourth to sixth defendants will be able to successfully respond is at present unknown, but it seems to me to be unlikely that there will be any significant barrier to their dealing with the evidence by way of reply. 10However, against the possibility that I may be in error, I will reserve leave to the fourth to sixth defendants to apply to disallow reliance on these affidavits in the event that they are unable to successfully respond to the contents of them. 11The late service of these affidavits necessitated an application to the court and leave to rely upon them. That application has occupied two separate days before the court. Although the plaintiff has obtained that leave, the need for the hearing before the court has been brought about because the second and third defendants' history of non-compliance with court orders meant that they were subject to the particular order of Davies J, and their investigations proceeded in a way which meant that these did not come to light until well after the time for filing of evidence. A second day was required because inadequate evidence was provided on the first day to justify leave being granted. 12The fourth to sixth defendants were not unreasonable in their opposition to the leave being granted. In all of those circumstances, I think it is appropriate that the second and third defendants pay the costs associated with the entirety of the application for leave, including the costs of 10 April and 15 April 2013. 13I will make the following orders: (1)I grant leave to the second and third defendants to file and serve the affidavits of Charbel Geagea sworn in April 2013; the affidavit of Donna Andary of 21 March 2013; and the affidavit of Ray Andary of 21 March 2013. (2)I order that the fourth to sixth defendants file any evidence in reply by 4pm 30 April 2013. (3)I order the second and third defendants to pay the fourth to sixth defendants' costs of the application, including 10 and 15 April 2013. (4)I reserve liberty to apply on three days notice. And as I say, my Associate will contact the parties about the additional hearing date. ********** 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. Decision last updated: 24 April 2013