EVIDENCE - Affidavit evidence - Cross-examination by audio-visual link - Leave to rely on affidavit where deponent could not attend for examination - UCPR Pt 31 r 31.3
Pt 35 r 35.2(3)
Legislation Cited: Uniform Civil Procedure Rules Pt 31 r 31.3
Pt 35 r 35.2(3)
Cases Cited: Saravinovska v Saravinovski
Source
Original judgment source is linked above.
Catchwords
EVIDENCE - Affidavit evidence - Cross-examination by audio-visual link - Leave to rely on affidavit where deponent could not attend for examination - UCPR Pt 31 r 31.3Pt 35 r 35.2(3)
Legislation Cited: Uniform Civil Procedure Rules Pt 31 r 31.3Pt 35 r 35.2(3)
Cases Cited: Saravinovska v Saravinovski
Judgment (2 paragraphs)
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EX TEMPORE Judgment
HIS HONOUR: This is an application made on behalf of the fourth defendant, Mr Duncan, for the Court to make an order pursuant to UCPR Pt 31 r 31.3 for the cross-examination of Christopher Colin White to be taken by audio-visual link from London. Mr White has affirmed an affidavit in these proceedings on 12 August 2013 which goes to a central factual issue in the case.
I will first say something about the general nature of this dispute.
The plaintiff is a landlord. The proceedings have largely settled, leaving outstanding a claim against the third and fourth defendants as guarantors in relation to damages said to have been suffered by reason of breaches of the lease of restaurant premises at Penrith. The third defendant, although observing in court, is taking no active part in the hearing. The fourth defendant is represented by solicitors and counsel.
As is usually the case in proceedings in the Commercial List, this matter was fixed some months ago for hearing today.
Three weeks ago today, the plaintiff gave notice to the fourth defendant for the fourth defendant to have all of his witnesses available for cross‑examination. Nothing happened for just over two weeks. On Tuesday of last week there was communication between the parties on the question of Mr White's evidence being taken by audio-visual link. The plaintiff indicated that it opposed Mr White's evidence being taken by audio-visual link.
On Wednesday, 8 April 2015 at 11.49am Mr Duncan's solicitors sent an email to the Associate to Ball J (who at that time was expected to be the trial judge) indicating that they would be filing in the registry an application for Mr White's evidence to be taken by video link. The application was attached to the email.
I subsequently became the trial judge and on Friday, 10 April 2015 at 2.47pm Mr Duncan's solicitors sent an email to my Associate alerting her to the application for evidence to be taken by audio-visual link. That email stated:
We have made a number of enquiries with the Supreme Court registry yesterday and today and it appears that due to court staff absences, the application has not yet been put before a Judge in chambers. We have sought to have the application dealt with the Court staff member responsible for processing these applications is absent today (sic).
I indicated through my Associate that I would deal with the application today at the commencement of the hearing.
Before going any further, I should note that both of the emails to which I have referred were only sent to the Associate to the relevant judge and copied to Mr Duncan's own counsel but the emails were not copied to the solicitors or counsel for the plaintiff. That is an unacceptable departure from the appropriate procedure in relation to such matters. All communications to a Judge's Associate in relation to a forthcoming hearing must be consented to by, and copied to, all active parties in the proceedings. I dealt with this question in more detail in my judgment in Tugrul v Tarrants Financial Consultants Pty Ltd (In liq) (No 2) [2014] NSWSC 1971.
Mr Baird of Counsel, who appears for Mr Duncan, pressed the application this morning at the commencement of the hearing before me. There was no affidavit evidence in support of the application. Mr Baird sought to explain that by saying that it appeared that the court form did not require any evidence by affidavit or otherwise in support of the application. That is, with respect, neither a correct nor satisfactory answer. An application for audio-visual evidence is an application for an order under the rules and the Court, other than where the application is consented to, must proceed on the basis of evidence. An application for the giving of audio-visual evidence, in the absence of consent by all parties to the proceedings, is an important application and must be supported by evidence.
Mr Baird sought to cure that deficiency by calling his client, who was able to give evidence of personal observations of Mr White in the United Kingdom, including as recently as during January and February of this year. Mr Duncan was also able to give some hearsay accounts of Mr White's concerns. Mr Horowitz of Counsel, who appears for the plaintiff, did not cross‑examine Mr Duncan on the evidence which he gave in support of the application.
Mr Duncan's evidence did not amount to much more than three points. First, some time ago Mr White apparently suffered a serious cycling accident. There was no suggestion in Mr Duncan's evidence that there were any serious remaining consequences of that accident that would have prevented Mr White from flying to Australia to give evidence in these proceedings.
Second, Mr Duncan gave evidence that Mr White has been diagnosed with Parkinson's Disease, which Mr Duncan said he had been told by Mr White was now "advanced". However, Mr Duncan was unable to cast any further light about the precise nature and consequences of Mr White's condition as it currently stands. He gave evidence that Mr White's reluctance to come to Australia was based on Mr White saying that he was "concerned about my health and what would happen to me as a result of a long plane trip to Australia". There was also reference to a concern about suffering thrombosis.
Finally, Mr Duncan's evidence was to the effect that Mr White has family in Australia, including two grown up children. The evidence was that, having moved to the United Kingdom some three or four years ago, Mr White has not been back to visit his family. There appeared to be an underlying suggestion in that evidence that Mr White's physical condition was the reason why he hadn't come back to visit his family.
Mr Baird deployed Mr Duncan's evidence in support of a proposition which he fairly and properly articulated as being that Mr White cannot travel to Australia to give evidence. It should be clear from what I have said thus far that the only evidence relied upon in support of this application is the evidence that was able to be obtained from Mr Duncan. Most importantly, there is absolutely no medical evidence as to the nature of Mr White's illness and his current condition and whether or not there was any real difficulty or danger in Mr White travelling by air to Australia to give evidence.
Mr Duncan's evidence does not sustain a finding, and the Court declines to find, that Mr White cannot travel to Australia. At its highest, the Court finds no more than Mr White does not want to come to Australia to give evidence because of his concern that he may suffer some adverse health consequences as a result of the journey.
I should record that Mr Baird also called in aid Mr Duncan's evidence about Mr White not having come to Australia to visit his own family to support the inference Mr White could not travel to Australia. Again, that evidence would not sustain a finding that Mr White has been unable to travel to Australia. It is, if anything, consistent with a finding that Mr White at the moment prefers not to travel to Australia, presumably because of concerns that he has for his health.
While the Court is not satisfied that Mr White cannot travel to Australia, that is not the end of the discretionary exercise in determining Mr Duncan's application. In particular, Mr Baird also referred (albeit without the benefit of evidence) to the cost that would be incurred in Mr White flying to Australia to give evidence which is in a relatively narrow compass. For the purposes of this application the Court is prepared to accept from the bar table that a business class return air ticket from London to Sydney could be in the order of $10,000 to $12,000. However, as Mr Horowitz pointed out, this is a case involving a claim of some $2,000,000. In those circumstances, absent any other factors and given the importance of Mr White's evidence, the Court would not be satisfied that the cost of Mr White coming to Australia is so disproportionate to the amount of money at stake that it would otherwise depart from what is the usual position, namely that witnesses are to give their evidence (in particular be cross‑examined) in person. Nor was there any evidence that Mr Duncan could not afford to pay Mr White's airfare.
Mr Baird submitted that there would be irredeemable prejudice to his client's case if the evidence was not allowed to be given with Mr White participating by audio-visual link. Mr White's evidence goes to what occurred when he attended the leased premises and what Mr Baird says is a critical conversation which Mr White then had with the plaintiff's director, Mr Hesky. Other witnesses are going to be giving evidence about what they saw on the day when Mr Duncan alleges that the plaintiff locked the tenant out of the premises. The real nub of Mr White's evidence is the conversation which he says he then had with Mr Hesky. That conversation is hotly denied by Mr Hesky. While the Court accepts that the conversation is highly relevant to the key question of whether there was an abandonment by or a lockout of the tenant from the premises, the fact remains that there is a head to head collision between Mr Hesky and Mr White on the topic. That sort of collision is classically a case where the Court is reluctant to permit evidence to be given by audio-visual link. That is a further reason why the application is refused, because of the often noted difficulty and disadvantage that creates for a cross-examiner and for the Court's ability to assess credit.
It emerged in the course of Mr Horowitz's submissions that Mr Horowitz wished to show Mr White approximately a dozen documents in cross‑examination. While showing a witness who is being cross‑examined by video link documents can be done and, in particular where there are only a few of them, arrangements can usually made for that to be done in a way that the witness doesn't see the documents in advance, the fact that documents are to be shown to the witness is another practical reason why the Court should be slow to allow evidence to be given by audio-visual link. Mr Horowitz also fairly conceded that his cross‑examination was unlikely to be lengthy, but nevertheless gave an estimate of approximately one hour.
In this case I regard the need to show Mr White documents and the length of the cross‑examination as neutral factors in the exercise of the Court's discretion. If all the other factors pointed in favour of granting this application, the fact that the cross‑examination was likely to take place with a dozen documents over approximately an hour at, say, 5pm Sydney time would not be sufficient to result in the Court declining the application.
Quite apart from the fundamental failure to satisfy the Court that Mr White cannot travel to Australia, or that there is some reason of cost effectiveness to depart from the usual practice, the following three matters are also relied upon by the Court in rejecting the application.
First, not only was there no medical evidence but there was no explanation for the absence of medical evidence. Second, there was no explanation for the delay in making the application, notice having been given for cross-examination some three weeks ago. Finally, there is also no evidence that the video link can in fact take place. Mr Baird, from the bar table, indicated that inquiries were being made for Mr White to attend at a solicitor's office in London where the relevant facilities would be available. Whilst I accept that Mr Baird and those instructing him were hopeful that those arrangements could be put in place, the fact remains that there is no evidence before me that can and will be done.
For these reasons the application is rejected.
Mr Baird subsequently sought leave under UCPR Pt 35 r 35.2(3) to rely on Mr White's affidavit, notwithstanding that Mr White will be unable to attend for cross-examination, reasonable notice to attend having been given. I considered the operation of that rule in some detail in my judgment in Saravinovska v Saravinovski; Saravinovski v Saravinovski (No 5) [2015] NSWSC 128 at [74] ff. For the reasons set out above concerning the application for Mr White to be cross-examined by audio-visual link, I decline leave for that affidavit to be relied upon, notwithstanding Mr White's non-attendance in person.
I note Mr Baird's submission on this particular argument, in addition to the matters he raised on the earlier argument, that there is an increase in prejudice to his client by reason of other material being inadmissible as hearsay that might otherwise have been admitted if Mr White's evidence was admitted. That does not derogate from the reasons that led to my decision on the earlier application and, accordingly, leave is refused to rely on Mr White's affidavit. In particular, given the importance of Mr White's evidence, any prejudice to Mr Duncan's case is outweighed by the prejudice to the plaintiff of not being able to test that evidence. That latter prejudice will not be sufficiently allayed by a simple discounting of Mr White's evidence if it were admitted in circumstances where it could not be tested by cross-examination.
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Decision last updated: 14 April 2015