Supreme Court New South Wales Medium Neutral Citation: Pevey v Jones Lang LaSalle (NSW) Pty Ltd [2016] NSWSC 288 Hearing dates: 25 February 2016 Date of orders: 25 February 2016 Decision date: 25 February 2016 Jurisdiction: Common Law Before: Campbell J Decision: 1. The Plaintiff has leave to call Mr Patrick Donoghue to give his evidence by way of AVL. 2. The AVL evidence of Mr Patrick Donoghue is to be given concurrently with the evidence of Dr John Cook unless the trial judge orders otherwise Catchwords: PRODEDURE – application for evidence by way of audio visual link – where witness is key expert witness to be a part of a conclave – where unopposed Category: Procedural and other rulings Parties: Jennifer Pevey (Plaintiff) Jones Lang Lasalle (NSW) Pty Ltd (First Defendant) Fabcot Pty Ltd (2nd Defendant) Representation: Counsel: S Maybury (Plaintiff) Solicitors: Law Partners Compensation Lawyers (Plaintiff) Vardanega Roberts Solicitors (First Defendant) Meridian Lawyers (2nd Defendant) File Number(s): 2014/00202571 EX TEMPORE JUDGMENT - REVISED 1. This claim is for damages for personal injuries resulting from a slip and fall in a shopping centre. Mr Maybury of counsel, who appears for the plaintiff and mentions the matter on behalf of each of the defendants, is applying for the evidence of Patrick Donohue to be taken by audio visual link. Mr Donohue is an engineer and ergonomist who is the plaintiff's expert witness in the case. He is currently on sabbatical and will remain so when the trial is conducted in May of this year. He is in the Republic of Ireland. 2. The issue in the case, I am informed, relates to both the condition of the surface of the shopping centre car park and the adequacy of the lighting in the car park. The defendant, at least one defendant, has obtained the evidence of Dr John Cooke. 3. Normally applications for evidence by audio visual link are considered by the trial judge. However, it is the general practice in the Common Law Division that the cases are not assigned to a judge until the week or so before the date fixed for hearing. That procedure is more than satisfactory in the majority of cases. It is best to leave it to the trial judge mostly because she or he will have a better idea of how the case is likely to run and the most convenient time to permit evidence of this type to be taken. 4. The difficulty from the plaintiff's point of view, which has prompted this early application, is that Mr Donohue is her liability expert. Without his evidence there would be no case. Mr Maybury informs methat there are differences of opinion between Mr Donohue and Dr Cooke, which is not unexpected,. And in accordance with the usual practice in the Common Law Division it is proposed that their evidence be given concurrently. 5. The consent of the defendants indicates that they perceive no unfairness to them if Mr Donohue participates in the concurrent evidence by audio visual link. This is not an uncommon means of taking concurrent evidence. 6. The trial is fixed for 16 May 2016. It is proposed that the concurrent evidence of the experts will be taken on the third day, being 18 May 2016, at 10am. Although it will be then late in the evening in Dublin, Mr Maybury assures me that Mr Donohue is happy to make himself available at that hour of the day to give his evidence. 7. For those reasons, I order: 1. The plaintiff has leave to call Mr Patrick Donohue to give his evidence by way of audio visual link. 2. The audio visual link evidence of Mr Patrick Donohue is to be given concurrently with the evidence of Dr John Cooke unless the trial judge orders otherwise. 3. I note that these orders accord with the consent order signed by the legal representatives of the parties. ********** 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: 18 March 2016