List member Geoffrey Diehm QC recently appeared for the Second Defendant in Lardner v Australian Capital Territory [2018] ACTSC 77, in which a decision as to whether allow experts to give evidence by audio visual link, over objection was given.
The plaintiff opposed evidence of Dr John Cummine, orthopaedic surgeon, of Sydney, New South Wales and Dr Paul Belt, plastic surgeon, of Brisbane, Queensland, being given by either telephone or audio visual link. The defendants applied pursuant to r 6703 of the Court Procedures Rules 2006 (ACT) (‘the Rules’) that the experts be allowed to give evidence via telephone by video link.
The Court had power to receive evidence in the way applied for under s 20 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (‘the Act’), which provided that the Court may direct evidence be taken by audio or audio visual link from a participating State. Both New South Wales and Queensland are participating States. The rules of the Court were not excluded by the Act and Rule 6703 provided that the Court could receive evidence or submissions by telephone or video link.
McWilliam AsJ referred to the decisions of Austin J in ASIC v Rich [2004] NSWSC 467, who described some ‘recurring themes’ in the exercise of the court’s discretion which included the appropriateness of audio visual facilities, the assessment of credit where evidence is given by audio visual link, difficulties where documents are used, technological difficulties due to lapse of time between transmission and receipt of questions and answers, and difficulties where cross-examination is lengthy.
Under the Act the Court was required to be satisfied that the necessary facilities were or could be made available, that the evidence could be more conveniently given from the participating State; and that the making of the direction was not unfair to any party opposed to it.
McWilliam AsJ noted that the defendants had made arrangements for the facilities and would take steps to check they worked and that both doctors had long surgery lists and multiple patient appointments. Senior Counsel for the Plaintiff had submitted there would be difficulty in taking the doctors to documents via audio visual link, but it was pointed out that it could be communicated overnight which documents they needed to look at.
McWilliam AsJ also considered the nature of the evidence to be given and concluded that it was centrally important.
McWilliam AsJ observed that the Applications should have been made prior to the hearing, however also stressed that accommodating professional witnesses where it is not prejudicial to the Plaintiff is important.
Ultimately McWilliam AsJ gave orders allowing the experts to give evidence by audio visual link.
See the judgment here: http://courts.act.gov.au/supreme/judgments/lardner-v-australian-capital-territory
