This proceeding concerns a dispute about construction works for a property situated in Queensland. The property is owned by the plaintiff as a trustee. The arrangements for construction were governed by a deed. One of the entities to that deed was a company 'Development Delivery Construction' (DDC). The plaintiff complains that the works were not completed. Eventually, the plaintiff says it had to expense itself in completing the works.
DDC has since been deregistered and the plaintiff sues the defendant, Mr Whithnall, on a guarantee. The plaintiff says that the guarantee was repudiated or terminated.
Mr Whithnall disputes liability on various bases: first, that the deed was void for consideration; secondly, the guarantee was discharged or terminated in a way which released his obligations. A separate plea of failure to mitigate is also added.
On 20 October 2023, I received emails from the solicitors for the parties. The emails indicated that this dispute has been included in the Parramatta civil sittings for November 2023 that I will preside over. Specifically, it was pointed out that the hearing was listed to commence on 13 November 2023.
At the time these email messages were sent, I was sitting in the Court's criminal jurisdiction in Newcastle. The gist of the emails was that with the hearing imminent, the defendant informally indicated his wish that a witness in his case, Mr Brent Stevens, give his evidence at the hearing by audio visual link. Mr Stevens is a resident of Queensland. The plaintiff indicated its opposition to this informal application on that day.
With the agreement of the parties, given the imminence of the November sittings in Parramatta, I indicated that the Court was inclined to determine the dispute on the papers so long as the parties were agreeable to that course and agreed upon directions for the exchange of evidence and submissions they respectively relied upon for the application.
The defendant, who I will henceforth refer to as the applicant served an affidavit of Jeffrey Siddle, a Principal Lawyer of the firm Macpherson Kelley Pty Ltd, representing the applicant, sworn on 25 October 2023.
The plaintiff, who I will henceforth refer to as the respondent, served an affidavit of John Boustany, a solicitor employed by Centurion Lawyers Pty Ltd, representing the respondent, sworn on 27 October 2023.
Both parties prepared written submissions which I have taken into account.
[2]
The applicant's evidence
Mr Siddle's affidavit sets out the circumstances the applicant relied upon in support of the application.
He explained that Mr Stevens operates a property development business in Brisbane; that he has domestic responsibilities relating to the care of school children and currently has a finance application for his business on foot. If that application is successful (which he expected to learn of within two weeks of his application ie approximately 9 November 2023), he foresees the possibility of needing to attend Dubai for a further period of 2-4 weeks to finalise arrangements. Putting the matter starkly, Mr Siddle explained that, on the basis of information received from Mr Stephens and his belief, it was possible that Mr Stevens would need to travel to Dubai prior to the commencement of the trial and not return until the end of the trial. Notwithstanding this, he was able to take part, by audio visual communications if he was physically located in Dubai but, if not present in Dubai, he was also able to take part in the trial, again by audio visual communications, if he remained in Brisbane.
The applicant was notified (by email) of the respondent's requirement that he attend for cross-examination on 18 October 2023. Two days later the applicant informally brought its application to the Court.
[3]
The respondent's evidence
Mr Boustany's affidavit sets out some additional circumstances not already touched upon in Mr Siddle's affidavit, in opposition to the application.
Mr Boustany annexed Mr Steven's affidavit (inexplicably twice), prepared and served on 17 March 2023. It is apparent on the face of the affidavit that Mr Steven's affidavit responded to two affidavits served on the respondent's behalf in its evidence in chief. Mr Steven's affidavit runs to 42 paragraphs.
At paragraph 6, Mr Steven indicated a limitation that when preparing his affidavit he did not have access to contemporaneous emails, other than those that apparently were referred to or exhibited in the affidavit evidence in chief relied upon by the respondent.
Mr Boustany asserts and the applicant does not contradict, that Mr Steven's affidavit is the only affidavit relied upon by the applicant.
He deposed that the respondent served evidence in reply on or about 23 June 2023: Mr Kavanagh's affidavit ran to 19 paragraphs and there were many annexures.
[4]
The applicant's submissions
The applicant's application cites as sources of power for the Court to order that evidence of Mr Steven be given by audio visual link: the Civil Procedure Act 2005 (NSW) and Uniform Civil Procedure Rules 2005 (NSW), r 31.3; and s 7(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) ('EAAVLA'). The applicant's submissions centre upon the application of the EAAVLA.
The applicant submits that Queensland is a 'participating state', for the purposes of the EAAVLA (s 3(1)). It further submits that none of the exclusionary circumstances set out in s 7(2) of the EAAVLA apply. That is to say:
1. the Court, at its Parramatta venue, has the AVL facilities;
2. It cannot be said that the evidence can be more conveniently given in New South Wales;
3. The respondent cannot persuade the Court that the direction that evidence be given in this way is unfair.
As to (b), the applicant notes, with reference to Mr Steven's circumstances and the fluidity as to when (if at all) this hearing gets on, it is difficult for him to make arrangements given the state of that uncertainty. The applicant argues that Mr Steven, a non-party witness, stands to gain nothing from the proceeding. The applicant noted that the parties had commonly estimated a hearing to run for 2 days which might mean that Mr Steven may be required towards the end of the first day or at least on the second. But the applicant foreshadows that he might only be required for a few hours at most.
As things stand, the applicant appears to expect that the case will commence on 13 November; requiring Mr Steven to travel the preceding evening and arrange accommodation for the 13 and 14 November, prior to his return travel to Brisbane. But Mr Steven seeks certainty. He is also concerned about his prospective need to travel to Dubai for business reason.
The applicant made certain submissions, apparently, concerning the forum for the hearing of this dispute. He points to the close connection between the subject matter of the proceeding and Queensland and argues that the plaintiff commenced the dispute in this state for its own convenience. The applicant appears critical about the actual commencement of the proceeding at Parramatta, to suit the respondent's solicitors, and not the Sydney CBD.
In anticipation of a point raised by the respondent, the applicant says that Mr Steven had no influence, let alone control, in the choice of the forum, but the consequences of the forensic choice of the respondent is to occasion inconvenience to him.
As to (c), the applicant contends that no unfairness would arise to the respondent from his giving evidence by audio visual link. With reference to the email in which the respondent flagged its opposition to the application, it was not the case that Mr Steven's demeanour was likely to be of central importance and even if it was, modern case-law authority recognises that the technology available to the Court has progressed to the stage that demeanour of a witness can be adequately considered when the witness gives evidence in this way. The applicant would be open to negotiate a protocol for him to give evidence.
[5]
The respondent's submissions
The respondent claims that the application is belated. It emphasises that he is the single witness for the applicant and, as a layperson, says his credibility will be in issue.
The respondent does not contest the Court's power to make a direction under s 7 of the EAAVLA, although it observes that the applicant carries the onus for such a direction citing Touma v Diocese of Saint Maron, Sydney [2020] NSWSC 1926 ("Touma") at [11] where Cavanagh J also observed that relevant factors included the nature and significance of the evidence and the extent to which it might be disputed. It may also be pointed out that his Honour delivered this decision in a context of the Covid-19 Pandemic, whose effects continue to linger. It is notable that his Honour said (at [14]) that in the extreme times associated with the Pandemic "the Court's general experience of AVL is that it works well. Indeed, in some respects, it is easier for a judge to assess a witness as they are certainly very close up on screen." Against this, the respondent referred the Court to view of Meek J in Zhang v Zhang [2022] NSWSC 924 at [58] where, with reference to an earlier decision of Palmer J (in Xia v Santah Pty Ltd [2003] NSWSC 807 at [2]-[6]), his Honour appeared to lean against applications of the present kind where the credibility of a witness is in question. To similar effect was the decision of Buchanan J in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No.3) (2009) 181 FCR 152 at [78].
The respondent says it will not be in the interests of justice for him to give evidence remotely just because by doing so, it will be more convenient for him to do so. It emphasises that of its nature, litigation often involves inconvenience to parties and their witnesses.
The respondent says it would be 'unfair' for him to give evidence in this way. It contends that it would be 'necessarily' prejudiced if the application was acceded to. This submission is tied to its contention that his credibility is hotly in dispute.
The respondent also submits that his evidence can be given more conveniently in New South Wales.
If, however, the Court was to fix a hearing for a particular date within the two week sitting, then the respondent would not object and this would entail the benefit of minimising the inconvenience to Mr Steven.
[6]
Consideration
Applications of this kind are conditioned on the basis of criteria in the legislation - in this case the EAAVLA - but I do not lose sight of the circumstance that, like all procedural applications, I am to be mindful of the overriding case management objectives and also the considerations guiding consideration of the 'dictates of justice', under s 58 of the Civil Procedure Act.
I will be the Judge presiding over the Parramatta District Court civil sittings for November. Contrary to the hopes, or perhaps expectations of the parties, I am not in the position to provide any warranties or even predictions, as to when or whether this proceeding will be heard within the two-week period for those sittings. That will partly depend on the nature of the other actions earmarked for one week. In this regard, it is my recollection, formed from my presiding over the August 2023 sittings, that one matter involves an appeal from the Children's Court. Such matters typically acquire priority. Another matter from the same list was not reached back in August. I reject the invitation to fix this particular matter for any date within the period at this time.
This consideration lends force to the applicant's concern that because of the fluid nature of whether and when the hearing will proceed, it will occasion inconvenience, at least to the applicant, by bringing Mr Steven to Sydney on different dates within the period.
I consider, further, that there is force in the applicant's point that no matter how important his evidence is to the applicant's case, Mr Steven is still a non-party witness. That means that he is unlikely to be required to provide instructions to the applicant in the running of the case generally or, hypothetically, in any settlement negotiations during the case. His physical presence in Sydney is less critical than it would have been if he was a party or the operating mind and will of the applicant.
It is not the case that the facilities would not be available elsewhere to connect with the Parramatta District Court.
The respondent does not deny that it would be more convenient for Mr Steven to give evidence by audio-visual link. On the basis of the evidence of Mr Siddle I accept that it cannot be more convenient for the Court to have him come to Parramatta, given the uncertainty of whether the case will even get on and Mr Steven's uncertain business commitments.
I am cognisant of the respondent's point emphasising the importance of the evidence of Mr Steven to the applicant's case and the circumstance of his credibility being in serious issue. Neither point was challenged by the applicant.
The real focus of the respondent's opposition is that, on its view, it would be unfair to accede to the application.
I think it is fair to say that judicial views, although not necessarily held uniformly, have softened towards the utilisation of audio-visual evidence; especially in light of the Court's experience during the Pandemic when resort to that evidence was necessary to keep the wheels of justice moving during an extreme period. Some, if not most, of the authorities cited by the respondent preceded the experience of the Courts during the Pandemic. For my own view, I am inclined to agree, with respect, with Cavanagh J in Touma. My own impression is that, partly facilitated by the urgency of the crisis in the Pandemic, audio visual technology has improved. This is not an unqualified assessment. There is force to the view of some judges that there is a risk of a diminution in the dignity or solemnity of the occasion. But no matter where they are, all witnesses will be required to give evidence on oath or affirmation. At least insofar as his affidavit is concerned, Mr Steven has given that evidence on affirmation. At any rate, it is not too much for the Court to expect that, if it was necessary to do so, Mr Steven would be reminded by legal practitioners of the party calling him of the importance of the occasion of his giving evidence even if he is not in a Courtroom when he gives evidence.
Although the respondent cites prejudice or unfairness if Mr Steven was to give evidence by this means, it did not strike me as being particularly of a tangible or concrete kind beyond the generalised assertion that it is preferable for witnesses to give evidence in Court. There is no denying that evidence by a witness in Court is preferable, and this is reflected in rules 31.2(2) and 31.3(3) of the UCPR. I will return later in these reasons to consider possible terms if I grant the application which may further protect the respondent's interests.
The respondent raises a point about the lateness of the application. The same point, in my view, could be said about the lateness of the respondent notifying the applicant that Mr Steven was required to attend for cross-examination. This is in a context where the respondent's evidence in reply was served in June 2023 and it was obvious by then, if not earlier soon after the time when Mr Steven's affidavit was served in March 2023, that (a) his evidence might be important for the applicant and (b) he might be exposed to a challenge to his credit or reliability. It was the lateness of the notice for him to attend that left the applicant scrambling to bring the current application. The timing for notification for Mr Steven to attend was not within the applicant's control and it moved expeditiously after it received such notification.
I accept that acceding to the application is likely to save, or at least minimise the incurring of costs, for the applicant. That facilitates one of the case management objectives that works in the applicant's favour.
On balance, I find that it in the interests of justice, or to put the matter another way, it is consistent with the dictates of justice, for Mr Steven to give his evidence at the forthcoming hearing by audio-visual link.
[7]
Terms of the order
It should be apparent that I have acceded to the application on the basis of the facts indicated; which are very specific to Mr Steven's personal and forthcoming business commitments for the short term period. The applicant should not assume that, in the event that this matter does not proceed to hearing in the two-week sitting scheduled to commence on 13 November, so that it has to go over to February 2024, then the Court will adopt the same position as it does now.
Secondly, although these practical matters were not the subject of application by the respondent (whose position was one of outright opposition), the Court's own experience of persons giving evidence by AVL indicates a need for certain precautions:
1. there should be no person in the room or facility, other than the witness, except for the circumstance where another person might periodically be needed to bring a document to the witness' attention;
2. in light of the significance of Mr Steven's credibility, it may be the case that although standard directions apply and a common Court Book is prepared, the respondent's legal team might understandably wish to withhold from supplying the applicant and Mr Steven a particular document or documents that relate only to Mr Steven's credibility. That being so, a condition to the grant of this application is that it be arranged for Mr Steven to have with him, whether it be by way of a separate computer or facility or otherwise, the means of readily accessing documents sent to him electronically during the period he gives his evidence in the hearing.
It is possible that other practical steps to protect the respondent's interests may be conceived. This should be raised with the trial judge at the hearing.
Finally, although the applicant obtained the outcome it sought, this was subject to terms which it had not proposed in recognition of the respondent's interests and the utility of the application, confined as it is to the contingency that the case will actually be heard in the November 2023 sittings, remains in some doubt. It is appropriate that costs of the motion be costs in the cause.
[8]
Orders
Pursuant to s 7(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), Mr Brent Stevens is permitted to give evidence at the (expected) forthcoming hearing of this proceeding in the November 2023 civil sittings in Parramatta on the terms indicated in these reasons.
Costs of the motion, informally brought by the defendant originally by email on 20 October 2023, are costs in the cause.
[9]
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Decision last updated: 31 October 2023