Supreme Court New South Wales Medium Neutral Citation: PAO v Thomas William Grealy [2013] NSWSC 675 Hearing dates: 29 May 2013 Decision date: 30 May 2013 Jurisdiction: Common Law Before: Harrison J Decision: 1. Plaintiff's notice of motion filed 9 May 2013 is dismissed. 2. Direct the plaintiff to serve statements from all witnesses that are to be called at the trial within seven days. 3. Direct the defendants to serve statements from all witnesses that are to be called at the trial within 14 days thereafter. 4. Grant liberty to the parties to approach the List Manager with a view to obtaining a hearing date with an estimate of two weeks. 5. Order that the costs of this application be the plaintiff's costs in the proceedings. Catchwords: PRACTICE - order for examination of witnesses - UCPR 24.3 - whether aged and frail witnesses should give evidence in advance of the trial - where evidence in chief to be by way of witness statements - where defendants oppose orders sought - where no utility for the orders demonstrated Legislation Cited: Uniform Civil Procedure Rules 24.3 Category: Procedural and other rulings Parties: PAO (Plaintiff) Thomas William Grealy (First Defendant) Trustees of the Roman Catholic Church for the Archdiocese of Sydney (Second Defendant) Trustees of the Patrician Brothers (Third Defendant) Aengus Kavanagh as administrator of the estate of the late Celestine Mulhall (Fourth Defendant) Patrick Lovegrove (Fifth Defendant) Aengus Kavanagh (Sixth Defendant) Aengus Kavanagh as administrator of the estate of the late Dominic Coates (Seventh Defendant) Aengus Kavanagh as administrator of the estate of the late Vianney Foyle (Eighth Defendant) Stephen Aitken (Ninth Defendant) Representation: Counsel: A J Bartley SC with L Whalan (Plaintiff) C P O'Neill (Second to Ninth Defendants) Solicitors: Porters Lawyers (Plaintiff) Colin Biggers & Paisley (Second to Ninth Defendants) File Number(s): 2010/13389 Publication restriction: Nil Judgment 1HIS HONOUR: By notice of motion filed on 9 May 2013 the plaintiff seeks various orders for the taking of evidence otherwise than at the trial from certain witnesses pursuant to UCPR 24.3. 2The plaintiff alleges in his statement of claim that when he was a pupil at Patrician Brothers' Primary School at Granville in 1974, the first defendant sexually abused him. The plaintiff reported the sexual assaults to his parents. His father is still alive and is 76 years old. He is one of the witnesses who are the subject of the proposed examination. The other is Brother Joseph Byrne who worked at the school at the time. Each man is said to be elderly and "may be unable to attend to give evidence at the hearing of the proceedings because of his age and infirmity." No evidence in support of those contentions is provided apart from the bare statement of the fact. The plaintiff's mother is no longer living. 3Subject to the outcome of the present application, the parties are all agreed that they are in a position to take a hearing date and estimate that the case will occupy two weeks. No orders for witness statements have been made but they should be. Mr Bartley SC informs me for the plaintiff that he can serve all of his witness statements within seven days. 4It was in the context of that information that I queried the purpose and indeed the wisdom of separately taking evidence from the proposed witnesses. It seemed to me that if statements from these witnesses were prepared and served it would be for the defendants to determine whether or not they would be required to attend court for cross-examination. Short of the answer to that question, the very issue of the need for their attendance at the hearing at all has not yet even arisen. 5In response to that suggestion, I was informed that the plaintiff did not want to be placed in a position where the worth of these witnesses' evidence could arguably be devalued or limited by reference to the fact that they had not been tested in cross-examination. That struck me as a curious suggestion for the plaintiff's counsel to make, particularly in circumstances where, if the evidence in writing were untested because the witnesses predeceased the trial or were too frail to attend, it would stand at its highest uncontradicted and unassailed. The plaintiff's witnesses could hardly be attacked or criticised in those circumstances. It is moreover difficult to think of a more favourable result for the plaintiff than that. I even elicited a concession from Mr O'Neill who appeared for all defendants but the first, that the foundation for any such criticism or submission would not be available. 6It seems apparent that the case can commence soon, subject to the usual vicissitudes of the list. There does not therefore appear to me to be any good reason for acceding to the present application. There are on the contrary all of the usual good reasons why it should be refused. The trial judge should assess issues of credit and the plaintiff's proposal may well imperil that prospect if the proposed examiner does not sit at the trial. There is likely to be extra expense and possibly delay if the evidence of some witnesses is taken separately. The provision of statements is a complete answer to the concerns about the age or frailty of the witnesses. It is not suggested that they are in extremis or near death or rapidly descending into dementia or worse. If the witnesses were in due course found to be unable to attend court for some good reason after providing a statement that becomes their evidence, their inability to do so would only be a potential disadvantage for the defendants who oppose the making of the claimed orders in any event. The risks associated with aged or frail witnesses thus become theirs. The materiality of the witnesses' evidence is also not in doubt. 7There is no conceivable utility in making the orders sought. It is not in the interests of justice to do so. It would also be potentially inimical to the just, quick and cheap resolution of the issues in dispute. It may even be inimical to the plaintiff's best interests. 8I consider that the application should be refused. I therefore make the following orders: 1. Plaintiff's notice of motion filed 9 May 2013 is dismissed. 2. Direct the plaintiff to serve statements from all witnesses that are to be called at the trial within seven days. 3. Direct the defendants to serve statements from all witnesses that are to be called at the trial within 14 days thereafter. 4. Grant liberty to the parties to approach the List Manager with a view to obtaining a hearing date with an estimate of two weeks. 5. Order that the costs of this application be the plaintiff's costs in the proceedings. ********** 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: 30 May 2013