Chaina v Presbyterian Church (NSW) Property Trust (No. 15) [2013] NSWSC 1178

Supreme Court New South Wales

Medium Neutral Citation: Chaina v Presbyterian Church (NSW) Property Trust (No. 15) [2013] NSWSC 1178 Hearing dates: 26 August 2013 Decision date: 26 August 2013 Jurisdiction: Common Law Before: Davies J Decision: Plaintiffs' application refused. Catchwords: PROCEDURE - evidence - witnesses - application for witnesses in reply to give evidence beyond time fixed for hearing - no efforts made to have witnesses present during time fixed for hearing - whether witnesses could give admissible evidence - application refused Cases Cited: Chaina v Presbyterian Church (NSW) Property Trust (No. 13) [2013] NSWSC 1057 Category: Interlocutory applications Parties: Mathew Chaina (First Plaintiff) and ors Presbyterian Church (NSW) Property Trust (First Defendant) and ors Representation: Counsel: In person (Plaintiffs) R Stitt QC, G L Turner & H Stitt (Defendants) Solicitors: In person (Plaintiffs) Curwoods Lawyers (Defendants) File Number(s): 2002/69354

Judgment 1Application is made by the Plaintiffs for Mr Jerogin and Mr Sainsbury to give evidence at some time in the future because of their present unavailability. That evidence is evidence in reply. 2I first raised with the Plaintiffs the matter of evidence in reply on 15 July (at T 1664). On 6 August 2013 I again raised the matter and explained to the Plaintiffs what evidence in reply was about (at T 2373). There was some suggestion that evidence in reply would be called from Mr Dique and Mr Arraj. 3On 8 August (at T 2490) I again raised the issue of what evidence in reply might be going to be called by the Plaintiffs. I said at that time that Mr and Mrs Chaina should think about what evidence they wanted to call in reply and let me and the Defendants know on the following Tuesday (13 August), if they intended to call evidence in reply from Mr Chaina or Mr Arraj or anybody else. 4On 13 August Mrs Chaina said that Mr Dique and Mr Arraj would give evidence in reply. I then directed that the Plaintiffs should let the Defendants know in general terms what the evidence that was going to be called from these persons would embrace. 5On that day Mr Hamish Stitt appeared for the Defendants and the following exchange occurred: Can I just ask Mrs Chaina through you, your Honour. Am I right in understanding that there are only two witnesses to give reply evidence, Mr Dique and Danny Arraj; is that right? HIS HONOUR: Is that right, Mrs Chaina? Do you or Mr Chaina want to give reply evidence? THIRD PLAINTIFF: Do I need to give evidence again? HIS HONOUR: It's entirely a matter for you. If you feel there's anything that you needed to give evidence to answer what's been said by some of the people who have already given evidence, you will need to do that.... So, would you have a think about that and you can let Mr Stitt or Curwoods know? 6On 14 August I handed down judgment on the Defendants' application concerning expert evidence: Chaina v Presbyterian Church (NSW) Property Trust (No. 13) [2013] NSWSC 1057. I then reminded Mrs Chaina to give to the other side by the end of Monday 19 August a brief outline of what areas would be covered by Mr Dique's evidence (because he had been indicated as a witness in reply), and any other reply evidence that she wanted to call. I again reminded her of that on Friday 16 August when the matter came before me for further directions. 7On 19 August I received an email, which had been copied to the Defendants, which provided a list of bullet points containing areas of evidence that were to be covered in reply. The email also listed the people who were to give evidence in reply. Those persons were the second and third Plaintiffs, Nigel Dique, Danny Arraj, Alex Roudenko, Peter Tudehope, Michael Jerogin and Dennis Sainsbury. This was the first time that there had been any mention at all of Mr Jerogin or Mr Sainsbury as far as evidence in reply was concerned. They had been put forward by Champion Partners when that firm was retained as two persons who would give evidence in chief. However, it had previously been agreed between counsel for the parties that Mr Jerogin and Mr Sainsbury would not give evidence in the proceedings. After the second tranche of the hearing resumed in July 2013 I ruled that the statements of Mr Jerogin and Mr Sainsbury could not be relied upon nor could they give evidence. 8Despite what I had said to the Plaintiffs on a number of occasions the email from Mrs Chaina did not relate the list of subjects for reply evidence to the particular person or persons who would give that evidence. On 21 August, at the completion of Mr Humphreys' evidence I tried to ascertain from Mrs Chaina what evidence in the list that was given would be given by the particular persons concerned. I was told that Mr Roudenko, Mr Tudehope, Mr Jerogin and Mr Sainsbury would give evidence about four matters in the list being: Proton's reputation in the industry of no goodwill; George's reputation in the industry with customers and in the community; Mr Stitt alleging George being a violent crook and dishonest entrepreneur; the attack on George's character. 9I then made enquiries of who would give evidence at what time and date. This exchange occurred: HIS HONOUR: We know Mr Dique can't be here until after lunch tomorrow. Can anybody else be here in the morning tomorrow? SECOND PLAINTIFF: Mr Jerogin, Peter Tudehope. 10On Thursday 22 August the Plaintiffs called Mr Roudenko to give evidence. Much of the evidence that he wished to give on behalf of the Plaintiffs I ruled objectionable, particularly because it was inadmissible evidence concerning Mr Chaina's reputation and Proton's goodwill. 11Following the conclusion of his evidence, Mrs Chaina announced without any warning that she wanted to call Lily Sukkar to give evidence in reply. She had not been listed as one of the witnesses to do so. Nevertheless, in the absence of objection from the Defendants her evidence was given, and she was cross-examined. 12At the conclusion of Ms Sukkar's evidence I asked who was next and I was told that Mr Dique would be here in "ten to fifteen minutes." I asked was anyone else available to give evidence. The following exchange occurred: HIS HONOUR: I thought you were calling Mr Jerogin and Mr Sainsbury? THIRD PLAINTIFF: Yes your Honour. SECOND PLAINTIFF: You have to give us decision first. HIS HONOUR: I have read their statements and I now know what they were going to give evidence in-chief about. But you're calling them for something different. THIRD PLAINTIFF: So I will go ahead and call them. . HIS HONOUR: Are they here? THIRD PLAINTIFF: No, but I can call them and they will be here tomorrow. 13I then asked Mrs Chaina what evidence she was intending to get from Mr Sainsbury and Mr Jerogin bearing in mind the rulings I made in relation to Mr Roudenko's evidence earlier that morning. It is to be remembered that they were to give similar evidence to that of Mr Roudenko. Mrs Chaina also told me that Mr Jerogin worked at Red Lion Laundries and he would give evidence in relation to that matter. That was not a matter that had been notified by Mrs Chaina in her email of 19 August. The issue apparently concerned Exhibit 36. Mr Dique then gave some evidence in reply but had not reached the stage of cross-examination by the time the court adjourned. 14At the conclusion of the evidence on Thursday 22 August I said that anybody who had not completed evidence in reply by lunchtime on Friday would have to be here on Monday to give that evidence. 15On Friday 23 August Mrs Chaina sought to interpose Mr Arraj. There was no opposition from the Defendants and Mr Arraj gave evidence. At the conclusion of his evidence, when I asked about further evidence in reply, I was told for the first time that Mr Jerogin was in Singapore on business and would not be back in Australia until 2 September and that Mr Sainsbury was going into hospital. It transpired that, despite what I had earlier been told, no arrangements had been made for either Mr Jerogin nor Mr Sainsbury to attend. I was also told that Mr Tudehope was unable to be contacted. That sat rather uneasily with what I had been told on 21 August (see [8] and [9] above). 16Application was again made to me today for their evidence to be taken at a later time, possibly in the week of 9 September. 17This matter was set down for this second tranche of hearing, which was to have concluded at the end of last week. As it was, special arrangements were made to accommodate Dr Phillips who, when he returned from overseas, wanted extra time to finish preparing a report and to read the three boxes of documents which were MFI 61. This box of material had been available for some considerable time but no arrangements had been made by the Plaintiffs for Dr Phillips to read it. Having made an arrangement for Dr Phillips to attend on 2 and 3 September, and for him to have completed his report by this week, there was then a further application made for him to have an extra week to finish the report, and that he should not give evidence until the week commencing 9 September 2013. None of these dates form part of the original dates set for this second tranche. That application was acceded to. 18When parties are conducting litigation they are required to have their witnesses available at the time the matter is fixed for hearing. There are processes of the Court, including subpoena, whereby the attendance of witnesses can be compelled. In deference to the fact that the Plaintiffs are now unrepresented I had not required them to prepare statements of evidence in reply. I would have followed that course had they been represented. 19In the circumstances, I consider it inappropriate that the matter should again be delayed so that Mr Jerogin and Mr Sainsbury can be present to give evidence. I have given the Plaintiffs every opportunity to call their evidence in reply. I raised it with them at an early time so that arrangements could be made. Apparently no arrangements were made despite what I was told. 20Most of the evidence that it was intended to call from them would, in any event, be inadmissible on the basis of the rulings I made concerning Mr Roudenko's evidence, and also certain other witnesses who wanted to provide their comments or opinion about Mr Chaina and/or Proton. 21The only discrete matter about which Mr Jerogin was said to be able to give evidence was in relation to his employment at Red Lion Laundries. However, the person who signed the letter from Red Lion Laundry, which is in evidence (Ex 36), was not, in any event, Mr Jerogin but a Mr Vaughan. It was not immediately apparent how, in those circumstances, Mr Jerogin's evidence concerning his employment at Red Lion Laundries would be evidence in reply. 22For all of those reasons I decline the Plaintiffs' application for Mr Jerogin and Mr Sainsbury to give evidence at a later time.