• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Category: Procedural rulings

Parties: David Baxter (respondent)
Robert Willis (applicant)

Representation: Counsel:
Ms B Nolan (applicant)
Ms J Chen (respondent)
Solicitors:
Enyo Lawyers (applicant)
Addisons (respondent)

File Number(s): 2023/00159221

Publication restriction: Nil.

JUDGMENT ex tempore

Introduction

1. This is an application brought by Robert Willis (‘the defendant’) pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (‘the Act’), and r 31.3 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) that he be permitted to give evidence, via audio-visual link (‘AVL’) from London, at the hearing scheduled to commence on 16 June 2026.

2. The plaintiff opposes the order sought.

Background

3. Given the narrowness of the issues that arise, the background facts are covered across two parts: first, an overview of the proceedings; and, secondly, a short summary of the key events necessitating the present application.

An overview of the proceedings

4. Briefly, by the statement of claim filed 18 May 2023, the plaintiff, a licensed bookmaker, seeks damages from the defendant in the amount of $1,098,515.94: the plaintiff claims this amount is owed to him pursuant to an agreement between himself and the defendant where the defendant placed bets with him, on credit, during the period 3 November 2020 to October 2022.

5. The defendant, by his defence and cross-claim, denies there was an agreement, and relies on various defences – including a restitutionary claim and seeking relief under the Contracts Review Act 1980 (NSW).

The key events

6. As noted, the plaintiff commenced proceedings on 18 May 2023. The matter was listed for a Directions Hearing before the Common Law Registrar on 28 October 2025, and at that time was fixed for hearing for four days commencing 16 June 2026.

7. In accepting that hearing date as suitable, the defendant’s solicitor did not advise the Court that the defendant had, it seems, plans to travel to the United Kingdom at this time. The reason for that omission was because no “contact” could be made with the defendant and, further, because the defendant did not disclose to his lawyers his apparent travel plans for that period.

8. In relation to the defendant’s solicitor’s evidence that he “could not contact” the defendant “regarding his availability in respect of a proposed trial of the proceedings” at the time the hearing date was allocated, and that he “attempted to contact [the defendant], but [he] was not able to reach him” before the trial dates were allocated by the Court (McMahon affidavit, par 5), the evidence is in exceedingly general terms and does not enable any meaningful understanding of precisely what this involves.

9. I do not accept that any proper attempt was made prior to the Directions Hearing on 28 October 2025 to confirm the defendant’s availability for any hearing that was allocated by the Court. Nevertheless, I do accept that the defendant failed to advise his lawyers of his travel plans.

10. The defendant made travel arrangements – which he described “as part of [his] ordinary annual business commitments” – specifically, by booking his flight “in about November 2025” (defendant’s affidavit, pars 14-15). In relation to this booking, it should be observed that the evidence relied upon by the defendant – his evidence and the evidence from his solicitors – omits any reference to when the defendant was advised of the hearing date allocated by the Court and, particularly in relation to the defendant, his evidence is entirely silent on whether he knew of the hearing date at the time he made these travel plans “in about November 2025” or, if he did not, when, precisely, he did.

11. It appears that the defendant’s solicitor only became aware that the defendant would be in the United Kingdom during the period of the hearing on or around 11 May 2026, when the defendant advised them of this (Tseng affidavit, pars 12-13; McMahon affidavit, par 6).

12. On 13 May 2026, the defendant’s solicitor advised the plaintiff’s solicitor that the defendant was “required to travel overseas for business from 23 May 2026 until late June 2026” and sought the plaintiff’s consent to an order permitting the defendant to give evidence by AVL (Tseng affidavit, annexure JT-1).

13. On 15 May 2026, the plaintiff’s solicitor acknowledged receipt of the request, and, in doing so, sought the defendant’s “statement of issues” (Tseng affidavit, annexure JT-2). It is not apparent that any were provided, either at that time or at all, indeed, Ms Nolan confirmed during submissions today that none have been served by the defendant.

14. On 21 May 2026, the plaintiff indicated that he did not consent to the defendant giving evidence by AVL (Tseng affidavit, annexure JT-3).

The statutory provisions and relevant principles

15. As I have earlier noted, the defendant identified r 31.3 of the UCPR and s 5B of the Act as the source of the powers to make the orders sought.

16. Section 5B of the Act relevantly provides:

“5B Taking evidence and submissions from outside courtroom or place where court is sitting—proceedings generally

(1) Subject to any applicable rules of court, subsection (2A) and section 5BAA, a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting.

(2) The court must not make such a direction if—

(a) the necessary facilities are unavailable or cannot reasonably be made available, or

(b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or

(c) the court is satisfied that the direction would be unfair to any party to the proceeding, or

(d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission.

(2A) …

(3) In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so.”

17. Rule 31.3 of the UCPR is in the following terms:

“31.3 Evidence by telephone, video link or other communication

(1) If the court so orders, evidence and submissions may be received by telephone, video link or other form of communication.

(2) This rule does not apply in circumstances in which leave for remote appearances from New Zealand in Australian proceedings within the meaning of the Trans-Tasman Proceedings Act 2010 of the Commonwealth could be granted under that Act.”

18. Three matters should be noted. First, notwithstanding the identification of these sources of the Court’s power, the defendant argued the matter solely by reference to s 5B of the Act. In this respect it should be noted that it was not suggested by either party that the considerations were in any way different depending upon whether the matter is considered from the perspective of r 31.3 of the UCPR or s 5B of the Act: see Filby v TEG Live Pty Ltd [2022] NSWSC 1280 at [13]. Secondly, in relation to s 5B of the Act, the party seeking the order – here, the defendant – bears the onus of establishing that it is appropriate for it to be made: North v Daniel [2021] NSWSC 828 at [27]. Thirdly, each party accepted s 5B of the Act confers an overriding discretion on the Court as to whether the order should be made upon the satisfaction of the matters in s 5B(2).

Consideration and disposition

19. The defendant’s essential submission is that none of the preclusive circumstances in s 5B(2) of the Act are engaged, and that no unfairness would result from an order that permits the defendant to give evidence by AVL (defendant’s submissions at [19]).

20. The plaintiff opposes the order principally on the ground that it would be unfair to make it, and on the further ground that the explanation for why it is sought is itself inadequate to justify the order sought (plaintiff’s submissions at [4], [7]-[9] and [12]). Thus, the plaintiff did not suggest, as Ms Chen who appeared for the plaintiff confirmed, that ss 5B(2)(a) and 5B(2)(d) were engaged; rather, the focus of these arguments was directed to ss 5B(2)(b) and 5(2)(c) of the Act, as well as the exercise of the Court’s discretion.

21. In relation to s 5B(2)(b) of the Act, the arguments of the defendant were largely confined to his convenience by reference to the inconvenience that would be occasioned to him by having to return for the trial. As is apparent, these submissions passed over the circumstances that underlie the making of these arrangements – either in the knowledge of the hearing date, or subsequently becoming aware of the hearing date and doing nothing about it for some seven months.

22. Ms Nolan, who accepted that this delay was itself regrettable, nevertheless submitted that the issues of convenience include other matters such as the time the evidence would be given, whether AVL is appropriate and like matters. These further considerations I consider are largely neutral.

23. The defendant’s argument was that he would be required to travel approximately 25 hours to return from London and this would involve “substantial business disruption” to him at great personal cost, approximately $42,000.

24. In relation to the personal cost, the plaintiff contested that it was as significant as what the defendant suggested, pointing out, first, that the quotation related to first-class air travel; secondly, it involved a fully flexible, rather than a fixed, airfare (thereby increasing the cost of it); and, thirdly, it merely represented one quotation available, not a range of them. In short, the Court should not act on this evidence; at a minimum, it should not accept that the personal cost is in the order suggested by the defendant, given these significant limitations in the evidence.

25. More broadly, in relation to this consideration and the suggestion that the refusal of the order would involve “substantial business disruption” to the defendant, the plaintiff submitted that, necessarily, this matter could not be considered divorced from the fact that the matter was fixed for hearing around seven months ago and, importantly, it should be inferred that the defendant himself knew of the hearing date before the travel arrangements were made and the business appointments were confirmed. It was submitted that, at a minimum, he must have known of the hearing date even a short period of time after it was set down. On either footing, the plaintiff argued that the inconvenience to the defendant, such as it is, was brought about by his disregard of the hearing date, or his subsequent knowledge of it and his failure to take any steps to address the matter in a timely way.

26. I accept the plaintiff’s submissions. In my view, given how the suggested inconvenience has occurred, and the limitations in relation to the evidence about cost, I am satisfied that the defendant’s evidence can conveniently be given in the court room. There is no suggestion the defendant will not return, or that he cannot fund or secure a cheaper flight. In any case, the events that have arisen, I find, are entirely of his own making.

27. In relation to s 5B(2)(c) of the Act, based upon the evidence of a solicitor employed by the solicitor for the defendant, the defendant, whilst accepting that his credibility (and, at least implicitly, reliability) would be challenged, nevertheless submitted that this fact, in and of itself, does not render the order he seeks as being unfair. That submission, so far as it goes, may be accepted.

28. The defendant handed up a schedule of facts said to go to the credit of the defendant and went through some of the issues which were argued to arise on the cross-claim. In my view, this analysis does not materially undercut the plaintiff’s submissions, to which I will next refer.

29. The plaintiff, on the other hand, submitted that the defendant’s credibility was, contrary to what the defendant submitted, “central” to the case, and identified a range of matters in support of this conclusion, including that the defendant’s “understanding of the contractual arrangement, his knowledge of the accruing debt and alleged oral representations made to him” means the inability to cross-examine him in person will cause a real and significant disadvantage to, and substantially prejudice, the plaintiff’s case (plaintiff’s submissions at [4]). The plaintiff further submitted that there “will be a significant credit challenge” to the defendant, and his evidence is essential to the determinative issues (plaintiff’s submissions at [11]).

30. It is important to note that, on the current application, none of the evidence in the trial was tendered, nor was any statement of issues. Instead, the arguments focused upon broad statements about the nature of each party’s case informed, on the defendant’s side, by evidence from a solicitor employed by the solicitor for the defendant supplemented by MFI1 which was handed up by Ms Nolan and, on the plaintiff’s side, by its lead and junior counsel.

31. As I mentioned earlier, I am unpersuaded that the schedule of facts referred to by Ms Nolan undercuts the outline of issues and their materiality as identified by the plaintiff’s lead and junior counsel.

32. Separately, and independently of the above, it is inevitable that in cross-examination of the defendant other issues are likely to arise and I consider that to be the case here.

33. In these circumstances, I accept the assessment of the plaintiff’s counsel rather than that of the employed solicitor for the defendant, given they are more likely to have a clear idea of the issues, including forensic ones, that arise in the proceedings and in the cross-examination of the defendant who is plainly a central witness. I do so additionally because I consider the solicitor’s assessment to be significantly less reliable: it impresses as somewhat optimistic and because, at least at one point, he had asserted (with respect, somewhat unconvincingly), a contrary position to the one he now adopts – namely, he recently stated in correspondence to the plaintiff’s solicitor that, upon his assessment, “it is not apparent that any cross-examination of [the defendant] will be necessary” (Tseng affidavit, annexure JT-1).

34. To the extent that Ms Nolan submitted that AVL would be easier for the Court to assess, or the Court would be more capable of assessing, the demeanour of a particular witness “on the screen” rather than in the courtroom, I disagree.

35. It follows that I accept, and find, that there will be a significant challenge to, at least, the credibility of the defendant, whose evidence is plainly central to the way in which the proceedings will be resolved. That is an important consideration, as the plaintiff submitted.

36. The effect of s 5B of the Act is that “whilst the court has a discretion whether or not to permit evidence to be given by video link, the court must not make such an order if satisfied that a direction to allow such a course would be unfair to a party”: Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250 at [38] (‘Antov’); s 5B(2)(c).

37. In my view, there would be material and significant unfairness to the plaintiff in making an order for the defendant’s evidence to be taken by AVL in this case, given the issues that arise and, importantly, the centrality of the defendant’s evidence and (at a minimum) its, and his, credibility. In making that finding, I have also taken into account the importance of the tribunal of fact better understanding and assessing the subtleties of the evidence, as it is given, and what I recognise is (consistent with the authorities) a “growing scepticism” in the confidence that there is “functional equivalence” between in-person and AVL evidence: see the discussion in R v Walker (2025) 117 NSWLR 371; [2025] NSWCCA 62 at [32]-[37]. I accept there is not, and that is material in a case such as this.

38. Additionally, I accept that there would be, if the order was made, unfairness by depriving the cross-examiner of the “reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party”: Antov at [50], citing Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152; [2009] FCA 1306 at [78].

39. To the extent that it is necessary to balance the interests of the plaintiff against the claimed inconvenience, then the result is the same.

40. Separately, I add that, given the circumstances as I have described them, I accept the plaintiff’s submission that no reasonable explanation has been provided for why arrangements to travel overseas were made when they were, given the allocation of a hearing date some seven months ago: see AMP Ltd v Chubb Insurance Australia Ltd (No 2) (evidence by AVL) [2025] NSWSC 789 at [52]-[53]. This is a further, albeit independent, reason for why the application must be refused.

Orders

41. For the above reasons I make the following orders:

42. Order the defendant’s notice of motion filed 25 May 2026 be dismissed.

43. Order the defendant to pay the plaintiff’s costs of, and incidental to, the notice of motion filed 25 May 2026.

**********