HER HONOUR: This is an application by the plaintiff, opposed by the defendant, for evidence from one of the witnesses in the proceedings to be adduced by audio visual link. The background to the present application is somewhat tortured. An application for family provision was brought in this Court, I understand in around 2015, in relation to the deceased estate of the grandmother of the plaintiff. Those proceedings resulted in a settlement as between the two children of the deceased. The validity or binding nature of that settlement agreement was the subject of a decision by Kunc J in February last year. After the settlement of the family provision proceedings, or after the mediation agreement in relation to the family provision proceedings, an amended summons was filed, in which the present claim was brought by the grandson of the deceased. The matter has been fixed for hearing in June this year before me.
After the date by which affidavit evidence in relation to the plaintiff's claim was required to be served there was an amendment to the defence by the defendant (filed 8 September 2017), to plead matters of presumed undue influence and an actual undue influence/unconscionable conduct claim. It should be noted that critical to the plaintiff's claims are two documents said to have been executed by the deceased in Macedonia, being a power of attorney and what is referred to as a contract for a gift. The authenticity of those documents has been in issue since the filing of the original defence in the proceedings.
Those documents are said to have been prepared by a lawyer, Mr Zarko Dabeski (whose name sometimes appears as Zharko Dabeski). The plaintiff has been aware since at least 2009 of the involvement of Mr Dabeski in relation to the documents, since, in his affidavit of 2 November 2016 filed in these proceedings, he deposes (at [39]) to having arranged for Mr Zarko Dabeski to visit his grandmother. The particulars of the actual undue influence claim (particulars to [7J] of the amended defence), include (as particular 1), that the second plaintiff, now the only plaintiff, arranged for a lawyer of his choice, namely Mr Zarko Dabeski, alleged to be a Macedonian lawyer, to prepare the documents necessary for the deceased to revoke the power of attorney granted to the defendant, and for the execution of the alleged Macedonian power of attorney and the alleged Macedonian contract for a gift. That particular is amply supported by the plaintiff's own evidence in his affidavit of 2 November 2016.
At the time that leave was granted for the amended defence to be filed (4 September 2017) there was also a direction made in relation to the service of any evidence to be relied upon as a result of that amendment. As I understand it, the evidence that the plaintiff seeks to rely upon in relation to the actual undue influence claim, and perhaps also the presumed undue influence claim, includes evidence from Mr Dabeski as contained in an affidavit of Zarko Dabeski sworn 13 December 2017, a copy of which is annexed to an affidavit of the plaintiff's solicitor, Emanueli Oliveri sworn 23 February 2018. Mr Dabeski's affidavit was read on this present application only as to the fact of that affidavit having been served and its contents, not for the truth of its contents.
Mr Dabeski's affidavit goes to the provision to him of instructions by the deceased and to his observations as to the deceased's capacity when the power of attorney and gift contract were executed. The plaintiff says that the delay in provision of evidence from Mr Dabeski was, in effect, due to the fact that only when the amended defence was filed and the actual undue influence claim was raised, including by reference to the above particular, did it become relevant that Mr Dabeski had been instructed to prepare the disputed documents. Notwithstanding that, as noted above, the plaintiff has been on notice that the authenticity of the documents has been challenged for some time.
There have been a number of difficulties in relation to the manner in which the evidence proposed to be relied upon has been prepared. There has also been a difficulty experienced by the defendant in seeking to obtain the originals of the documents the authenticity of which is here challenged. A notice to produce dated 25 July 2017 was served on the then two plaintiffs. That notice to produce was met with the rather surprising and cavalier response by their solicitor that there did not appear to be any legitimate forensic purpose in seeking access to the original of the documents when legible copies had already been served. Clearly, having regard to the submissions that have been made this morning and to aspects of the documents to which I have been taken, there is a legitimate purpose in the defendant seeking access to the original documents. The plaintiff's lawyers, however, advised that the originals were not within the plaintiff's custody, possession or control. When pressed in relation to that, the response was elicited that these documents were believed to be in the possession of the court in Macedonia. There is no evidence as to the basis on which those documents might be with the court in Macedonia. It might perhaps be to do with something in relation to the estate of the deceased, but there is simply no evidence in relation to that issue.
As to the difficulties in relation to the affidavit and the manner in which the affidavit evidence has been served, it is noted that there are a number of formal deficiencies such as, for example, the lack of any address for the deponent and the fact that the deponent appears to have himself witnessed his own execution of the signed affidavit. The affidavit of the Macedonian interpreter interpreting his affidavit is also deficient, including as to when it was executed. (Further, although this was described as possibly a typographical error, there is some doubt as to the fact that the interpreter appears to have considered Mr Dabeski to be female in gender - I say that by reference to [7] of the affidavit of Aneta Menoska sworn on some unknown date in December 2017.)
Section 5B of the Evidence (Audio and Audiovisual Links) Act 1998 (NSW) makes provision for the taking of evidence by audio link or audio visual link from a place outside Australia other than the courtroom or other place at which the court is sitting. Subsection (2) of s 5B provides that the court must not make such a direction if, (c) the court is satisfied that the direction would be unfair to any party to the proceeding.
Evidence has been put forward by the plaintiff as to the arrangements for an audio visual link to be conducted through a courtroom in Macedonia and there is no reason to think that those arrangements would not be adequate for the taking of the evidence by audio visual link. Reliance has also been placed on a medical certificate, which is annexed to Mr Oliveri's affidavit (which appears to be dated 31 January 2018 and relates to treatment of the "insured person," from which I infer that there may be some insurance claim behind the specialist's treatment of Mr Dabeski), which refers to the patient's consultation for "psychic troubles related to phobic disorders in the form of phobic fear of flying (traveling by airplane)". The evidence does not make clear for how long the patient has been treated for such a phobia, nor is there any explanation as to any steps that could be taken to facilitate the witness travelling to Australia, notwithstanding that phobia, by way of any form of medication or the like.
The plaintiff's position is that he is not in a position to compel the witness to travel to Australia to give evidence; that the witness is to give material evidence, and that it is not fair to the plaintiff to deprive the plaintiff of the ability to call the plaintiff to give evidence. The defendant's position is that the forensic disadvantages to which the defendant will be put in testing this late evidence, having regard to the issues that will be sought to be raised with this witness and the need to take this witness to particular documents, (and in particular to the need for the Court to be in a position to assess the evidence of the witness) is such that I should not accede to the plaintiff's application. It is also noted that there is nothing in Mr Dabeski's affidavit, or the like, to inform the Court as to whether Mr Dabeski is in fact unable to speak English and requires the assistance of an interpreter.
The issue as to authenticity of the documents may well be able to be met by other witnesses who are intending to travel from Macedonia to give evidence, namely, the two witnesses who have deposed that they witnessed the execution of the relevant documents. What the plaintiff now seeks to rely upon is the observations, in very general terms, by Mr Dabeski as to his view that the deceased was of sound mind when the deceased signed the documents.
Factors relevant to the exercise of the discretion to permit video audio link testimony include not only the nature of the evidence and the extent to which it is likely to be disputed, but practical matters including the cost, convenience and duration of the proposed evidence. It has been said that the centrality of the proposed evidence is not necessarily conclusive against an order being made, but when combined with the prospect of lengthy cross-examination and a significant credit challenge the Court is likely to require the attendance of the witness in the absence of significant countervailing considerations, and I refer in that regard to the decisions in Australian Securities and Investment Commission v Rich [2004] NSWSC 467 and Commissioner of Taxation v Oswal No 5 [2015] FCA 1504.
In my opinion, there would be unfairness to the defendant in making an order for the evidence to be taken by audio visual link in this particular case. The defendant has pointed out that, amongst other things, in the absence of any contact details that have been able to produce any communication with Mr Dabeski, they have not even been able to confer with Mr Dabeski in order to satisfy themselves in relation to some procedural aspects at least in relation to his evidence, to which I have adverted earlier.
I am not persuaded that refusing this application necessarily means that there is no ability for the plaintiff to adduce evidence from Mr Dabeski. It may, however, be necessary for the plaintiff to consider other steps, such as facilitating some form of conference call with the defendant's legal representatives, to enable them to satisfy themselves as to particular aspects of the manner in which the evidence would be given, if it could be given by way of audio visual link.
In any event, having regard to s 5B of the legislation to which I have already referred, given my conclusion that it would be unfair to the defendant to permit the evidence to be taken by audio visual link in these circumstances, where there will be credit challenges and where not only the authenticity of the documents but also the observations of the deceased when executing the documents will be highly relevant, I consider that I am obliged to refuse the application for evidence to be taken on audio visual link.
[2]
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Decision last updated: 05 December 2019
Parties
Applicant/Plaintiff:
Antov
Respondent/Defendant:
Bokan
Legislation Cited (2)
Evidence (Audio and Audiovisual Links) Act 1998(NSW)