Gibson v Northern Territory of Australia [2025] NTSC 73

Gibson v Northern Territory of Australia [2025] NTSC 73

• [1] The Plaintiff makes application, on summons dated 28 July 2025, to give evidence in her upcoming trial via audio-visual link (AVL). The application is made pursuant to s 49E of the Evidence Act 1939 (NT).

• [2] The proceeding relates to allegations of medical negligence by the Plaintiff against the Defendant. The proceeding was originally commenced in the Local Court on 14 July 2023 and subsequently transferred to the Supreme Court on 7 February 2025. The Plaintiff is a 65 year old woman who claims damages arising from negligent medical treatment and care by the Defendant. In particular, the Plaintiff's claim relates to treatment and care prior to and following a left-sided trochanteric bursa injection procedure at the Royal Darwin Hospital in early 2020, resulting in sustained temporary neuropraxia affecting the whole of her left leg which, in turn, caused the Plaintiff to sustain an injury to her left hip after she fell from her hospital bed. The Plaintiff claims that the Defendant's negligence resulted in a sequela hip injury and later a total hip replacement.
• [3] A description of the pleadings is necessary in order to put the matter in context. In the Plaintiff's amended statement of claim, the Plaintiff claims that the:

(a) Defendant (or its employees) failed to advise the Plaintiff of the risk of neuropraxia, which the Plaintiff suffered;

(b) Defendant failed to take steps to identify the presence of the neuropraxia and to prevent the Plaintiff from being injured, by reason of it, within the course of her post-operative care and discharge. In particular, as a result of those failures in post-operative care, the Plaintiff fell from her hospital bed and had subsequent difficulties standing and walking, which was observed by medical staff, but nonetheless was discharged a short time after with no follow-up care offered. The Plaintiff's claim also involves her account of interaction with staff of the Pain Services Clinic on the same and subsequent days, who she claims failed to address her concerns about her injury and to offer a follow-up review by a medical practitioner (until some weeks after).

• [4] Apart from a physical injury, the Plaintiff also claims a mental injury as a result of the failure to provide proper treatment.
• [5] The Plaintiff seeks damages including from a reduced capacity to earn (from teaching music), medical expenses and permanent impairment.
• [6] The Defendant, by its amended defence, and by various denials and particulars thereto, takes issue in respect to the Plaintiff's prior musculoskeletal conditions, including those specifically affecting her hips, and her prior mental health issues. The Defendant takes issue with the Plaintiff's employment history and capacity to earn. The Defendant takes issue with the events surrounding the alleged fall from the hospital bed and offers of support which were provided to the Plaintiff. The Defendant takes issue with the Plaintiff's alleged accounts of communication with the Pain Services Clinic and with medical staff of the Defendant.
• [7] The proceeding had previously been listed for trial commencing in June 2025 but is now listed to commence in less than three weeks, on 27 October 2025, for five days duration before Huntingford J. Leave has already been granted for expert witnesses (four for the Plaintiff and three for the Defendant)[1] to give evidence by AVL at trial. However, all other lay-witnesses are expected to give evidence in person (including those called by the Defendant), subject to this application by the Plaintiff.

• [8] Section 49E of the Evidence Act 1939 (NT) provides that the Court may make an order directing that a person give evidence by communication link from any place within or outside of the Territory. Before doing so, the Court must be satisfied that the necessary facilities are available or can be reasonably be made available.[2] Additionally, the Court is to have regard to a number of matters, which relevantly for this application include:[3]

(a) the efficient use of available judicial and administrative resources;

(b) any other matters that the entity considers appropriate.[4]

• [9] An application under s 49E of the Evidence Act 1939 (NT) was most recently dealt with, albeit in the context of a criminal proceeding before a jury in R v Baker.[5] In Baker, Brownhill J, in respect to s 49E(5)(e), rightly observed that there was somewhat of a dichotomy in the authorities as to whether evidence given by AVL is inferior to, or less effective than, or deprives a cross-examiner of forensic benefits available in, evidence given in person in the court, and if so, where the persuasive burden lies in the determination of such applications.[6] After a review of the competing authorities such as Tetra Pak Marketing Ltd v Musashi Pty Ltd,[7] and Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No. 3),[8] her Honour stated (footnotes omitted):[9]

"It is clear that the nature and scope of the evidence the witness is to give, whether it is likely to be in contest, whether the credit or reliability of the witness will be in issue and, if so, whether the use of an AVL will be likely to affect the jury's ability to assess those matters, are factors to be considered by the Court in making the necessary determination. Matters personal to the witness such as incapacity or illness, and travel and accommodation expenses associated with bringing the witness to court may also need to be weighed in the exercise of the discretion. Further, the giving of evidence must be practical; for example, evidence by AVL would not be practical if the witness will be asked to mark or annotate a document, and this cannot be done with the available AVL facilities."

• [10] It would seem to me that, even at times immediately preceding the COVID-19 pandemic, technology had progressed sufficiently for the Courts to be less wary of evidence given by AVL, and that is particularly more so given the post-COVID period with further development of technology in the years since.[10] Further, from a review of the relevant decisions, the personal preference of the particular trial judge plays a role, including whether she or he (particularly in respect to judge only civil proceedings) is comfortable receiving evidence (and assessing credit) via AVL.[1] That of course does not mean the fundamental considerations should be ignored, including the potential deprivation of a cross-examiner of the traditional forensic element in exchanges during cross-examination.[12]
• [11] In respect to s 49E(e) of the Evidence Act 1939 (NT) and the requirement of "other matters the Court considers appropriate," the over-riding consideration is what is considered by the Court to be in the best interests in the administration of justice, including to ensure that justice is done as between the parties. I acknowledge that the Courts have outlined a non-exhaustive list of factors which may be relevant, including: the employment commitments of an overseas witness, whether credibility of the witness is in issue, and whether the witness' evidence will be centrally important and whether the use of the AVL may frustrate or delay the management of documents in cross-examination.
• [12] In Southernwood, the Applicant sought an order allowing lay witness testimony of two witnesses in the USA to be given by video link. One witness refused to travel to Australia and was not compellable. The choice, in respect to that witness, was between hearing his evidence via AVL or not at all. The other witness had indicated that work commitments were impediments to travelling to Australia although there was no evidence that she had refused to travel. In determining the application, the Court refused the application on the basis that the Applicant's arguments, although not without force, were outweighed by other factors which included:

(a) the preference for testimony to be given in court, principally for the Court to have the best opportunity to accurately and fairly assess the reliability of the witnesses' evidence, and that the Court may be hindered in that assessment by hearing evidence by AVL;

(b) the witnesses' evidence was significant to the dispute - the evidence was contentious, and cross-examination was likely to be lengthy and involve consideration of numerous documents and include issues as to credit;

(c) cross-examination in cases involving numerous documents, including on issues of credit, is less effective via AVL than in Court, providing a disadvantage to the cross-examining party;

(d) the advantage to the witness to give evidence from the comfort of a location other than the Court, freed from the solemnity of the occasion which being in Court carries;

(e) the preference of the trial judge.

• [13] In S&P Global, Inc, a witness sought to give evidence from the USA. The witness refused to travel to Australia on the basis of fears for the security of her employment, and that she was not compellable. The Court was faced with the prospect of the witness giving evidence, or not at all, in circumstances where the trial was less than a fortnight away and it was unknown as to how the witness' evidence, if given by AVL, would play out. In S&P Global, Shariff J granted the order sought on the basis that the interests of justice would be served if the witness' evidence was given via AVL. In doing so, Shariff J took into account the effect on the calling party if the evidence was not given. In respect to the issue of possible prejudice to the cross-examiner, or difficulties with the Court assessing the evidence, or technological issues, the Court left open the possibility of revoking leave to give evidence during the trial if such difficulties arose.
• [14] In Baker, Brownhill J allowed the application for 18 of the 32 Crown witnesses to give evidence via AVL. In allowing the application, Brownhill J held that the evidence of the eighteen witnesses would likely be corroborative of other evidence given in person by the two co-accused and five other witnesses, and would be confined in its subject matter and likely to be short in duration. The detriment to the effectiveness of cross-examination and the jury's ability to assess credit was held to be negligible.
• [15] In Reliance Financial Services Aust Pty Ltd v Assaf,[13] the application was made for the Defendant to give evidence from Lebanon. The evidence was that the Defendant was permanently living in Lebanon, who was the sole carer for his elderly father, was concerned about contracting COVID-19 due to travel (by him or giving it to his father, during the pandemic), and his sole income was a small business in Lebanon. His evidence was significant and his credit was in issue. In respect to the unfairness brought about by not appearing in person for cross-examination, Henry J recognised that "even when credit has been a significant issue in proceedings, it has not necessarily been less effective or less just than evidence given in person."[14] However, to address that unfairness, Henry J agreed to allow the Plaintiff's key witness to also give evidence via AVL to "level the playing field." Additionally, Henry J noted that the necessary AVL facilities were available as the Defendant had given evidence that: he would access AVL facilities at a business class lounge in an international hotel in Beirut, with high speed, cable based internet, and that he would have access to split computer screens, an on-site technician, a separate computer with an electronic court book, a hard-copy could book if needed and printing facilities for additional documents as needed during the course of the hearing. Additionally, Henry J was prepared to revoke the order for an AVL during evidence if the Court was satisfied that continuing to give evidence would be unfair to the Plaintiff. A similar approach was also adopted in Mulberry Capital Management Pty Ltd v Shen.[15]
• [16] In Mulberry, an application was made for a witness, Mr Huo, who was resident in Beijing and who could not speak English, to give evidence. Mr Huo's difficulties in appearing stemmed from a possible prohibition by the Chinese government against him leaving China, and the risks of contracting COVID-19 as a result of travel. Mr Hou's credit was in issue (there were serious allegations against him), a translator would be required and there was a risk that the hearing would be protracted because of technical difficulties. The need for a translator affected the issue of the forensic advantage to cross examination in person. To level the playing field a key witness for the Defendant was permitted to give evidence remotely. The Court held that there was little merit in the issue of government travel restrictions, but the prospect of contracting COVID-19, given Mr Huo's medical issues, was a relevant consideration. Similarly, the Court reserved the right to revoke or modify the orders should the witness' evidence be perceived as being unfair.
• [17] In R v Early (No. 4),[16] an application was made by the Crown for a key witness, in a murder trial, to give evidence to the trial held in Sydney from Bundaberg in Queensland. Notwithstanding initial contradictory medical evidence, given by the witness' treating doctor via a police officer, a letter was tendered by the witness' doctor who was called and cross-examined thoroughly. The doctor gave evidence that the witness, who was 74 years old, was fit to travel the 2.5 hours by plane and that it was not unsafe for him to do so, notwithstanding that the witness suffered from ischemic heart disease and osteoarthritis affecting his ankle and mobility. Notwithstanding that, the doctor did not recommended travel on the basis that it would pose a risk to the witness' health, and "that given the issues, the common sense approach" was to allow the witness to give evidence by AVL. After weighing the competing authorities, including in the context of the criminal proceedings, the Court refused the application on the basis that the witness was an important Crown witness, and that his proposed evidence was an important plank in the Crown case and was hotly contested. Although the witness' medical conditions requiring him to travel to Sydney would involve inconvenience, he was fit to travel and it was not in the interests of justice that he give evidence by way of AVL.
• [18] In Liu v Option Funds Management Limited,[17] an application was made for Mr Zhu (the Second Plaintiff) to give evidence from China. The Second Plaintiff's medical condition was taken into account. However, other issues were relevant, including the fact that his evidence was unlikely to be lengthy or controversial and that an interpreter would be required. His evidence was allowed by AVL.
• [19] In Al Muderis v Nine Network Australia Pty Limited (No 5),[18] an application was made for three witnesses to give evidence via AVL. Two witnesses were overseas and therefore the complication arose as to their compellability, although health reasons were also considered. One witness, however, was in Australia and evidence was given that she had a diagnosis of Post-Traumatic Stress Disorder (PTSD), depression and anxiety, and had previous suicidal ideation. Further, her psychologist had expressed serious concerns about her giving evidence in Court, stating that it would be best option for her mental health to give evidence via AVL. That witness' proposed evidence was contentious. The application was allowed by the Court on the basis that the Court was satisfied that the witness' wellbeing would be significantly harmed should she be called to give evidence in person, and that notwithstanding the more "relaxed" nature of giving evidence via AVL, she was to give evidence from a lawyers' office, in the presence of lawyers, which was sufficiently both formal and foreign such that the gravity of giving evidence would not be lost.
• [20] As noted above, the cases turn on very specific factual circumstances and on certain factors which influence the exercise of the Court's discretion. As stated in S&P Global, "those factors are neither exhaustive nor prescriptive and the discretion under s 47A(1) is a broad one in which the determining consideration is the interests of justice in the particular facts and circumstances of the case. It involves a balancing exercise as to what will best serve the administration of justice, doing so consistently with maintaining justice between the parties."[19]

• [21] The Plaintiff relies on her affidavit made on 25 June 2025, and on her solicitor Cameron Jones' affidavits made on 15 September 2025 and 24 September 2025. The application to give evidence is made on two bases. Originally, the application was made primarily[20] on the basis of the care of her son, Tony, and the inconvenience and possible consequences which would follow if she had to leave him to travel to Darwin. Since that evidence was filed, the application was made on the additional basis that the Plaintiff is inhibited from travelling to Darwin to give evidence for her own medical reasons.
• [22] The Plaintiff resides on Russell Island in Queensland, southwest of Brisbane, situated between the mainland and the southern part of North Stradbroke Island. A ferry is required to get to the mainland. Presumably, although not in evidence, any trip from Russell Island, using the ferry, can still be done by car. Any trip to Darwin would require travel time to Darwin, time in Darwin, and in a return journey.
• [23] It was Plaintiff's evidence, given by Mr Jones,[21] that if the order sought was granted, a private conference room with secure and adequate Wi-Fi connection had been booked at the Redlands Community Centre for the Plaintiff to give evidence. However, following evidence of the Plaintiff's deteriorating medical condition, it was the evidence that such a room would be difficult to attend and alternatively a private conference room at Bay Ability in Redlands Bay, which had secure and adequate Wi-Fi, and is closer to the Plaintiff's home, was booked. Additionally, the Plaintiff's solicitor gave evidence that a solicitor from their office could be made available at the AVL location to provide court documentation to the Plaintiff as required. Other than reference to the name of the facility, adequate Wi-Fi and the attendance of the Plaintiff's solicitor at that location, no further evidence was given as to the proposed location from where the Plaintiff was to give her evidence. It was originally submitted that the technology was available and that problems associated with the giving of evidence via AVL may be alleviated by the use of a court book, a joint tender bundle and/or other technology such as document readers.
• [24] The Plaintiff's evidence in respect to the first aspect of the application can be summarised as follows:

(a) The Plaintiff is the full-time carer for her adult son, Tony, who is terminally ill with a serious and rare condition known as Pure Red Cell Aplasia;

(b) Tony has required a number of treatments, including blood transfusions and chemotherapy. Tony has experienced multiple medical crises and hospitalisations over the past 12 months, including needing emergency treatment;

(c) Tony is also severely autistic and nonverbal and, when hospitalised, he needs the constant presence of at least one parent to assist;

(d) Tony's father, Kevin, and the Plaintiff are joint legal guardians and substitute decision makers for Tony. However, due to Kevin's age (74), his hearing loss and difficulty coping with Tony's care, the Plaintiff bears the primary responsibility for making urgent decisions about Tony's treatment;

(e) The Plaintiff does not have any extended family or other support systems available to her. If she was unavailable, Tony would be at immediate and serious risk of harm due to his complex needs and reliance on the Plaintiff for both emotional support and medical advocacy;

(f) The Plaintiff provides constant care for Kevin and Tony;

(g) Tony receives daily National Disability Insurance Scheme (NDIS)-funded supports from a local agency, although they are not authorised or trained to make decisions regarding medications, medical care or emergencies;

(h) The Plaintiff also manages her own health issues, such as chronic pain in her neck and shoulders, limited mobility, and PTSD.

• [25] The second aspect of the application can be summarised as follows:[22]

(a) On 10 September 2025, the Plaintiff attended her treating neurosurgeon, Dr Tollesson, who recommended she undergo an anterior lumbar interbody fusion at two levels, which could take place in late September or early October 2025. At that time, the Plaintiff was also awaiting the outcome of certain tests, including CT scan of spine, bone density scan and EOS imaging scan of the spine, before finalising any decision to proceed with surgery. Dr Tollesson provided a letter dated 12 September 2024, addressed to "whom it may concern," which stated "I advise that Adele is unable to travel long distances as this will inflict more pain and cause further injuries to her back. Adele will require back surgery in the near future." Her next appointment was 23 September 2025;

(b) By letter from Dr Tollesson to the Plaintiff's general practitioner, Dr Waters, dated 19 September, Dr Tollesson stated "she has now developed severe low back pain and sciatica which is disturbing her. As you know I operated on her for cervical radiculopathy successfully on 2 August 2023 with an ACDF on C5/C6. She has had a known degenerative disc disease at L4/L5 and L5/S1 and this has been playing up giving her severe low back pain and sciatica. Conservative treatment has not been effective. The most recent scan was done on 24 April 2025 showing indeed a disc protrusion at L5/S1 and L4/L5. She feels that her pain is out of control and she wishes potentially to have surgery if possible... She may be a good candidate for an anterior interbody fusion at L4/L5 and L5/S1 as I explained to her today;"

(c) On 23 September 2025, the Plaintiff's solicitor, Mr Jones, spoke to Dr Tollesson regarding the Plaintiff's proposed back surgery;

(d) The Plaintiff has disc pathology at L4/5 and L5/S1. The most serious pathology is L5/S1. The pathology causes constant pain in her back with radiation into both legs. As a consequence, the Plaintiff requires anterior interbody fusion at L4/5 and L5/S1. Surgery is planned for November 2025. The pain interferes with the Plaintiff's mobility and restricts the Plaintiff's ability to travel due to the pain in her back and legs. If required to travel, the Plaintiff would likely need morphine-based pain medication, which is likely to impair the Plaintiff's focus and ability to function clearly;

(e) In order for the Plaintiff to travel to Darwin, she would be required to drive from her home to the ferry terminal on Russell Island, travel by ferry to the mainland, drive from the ferry to the airport (this would take 3 hours), walk from the drop off point to airline check-in, walk through the airport, board the plan, fly to Darwin (3.5 hrs flight approximately), traverse Darwin airport, collect luggage, arrange transport to her accommodation (a total journey of about 8-9 hours);

(f) The Plaintiff would need to move around the plane to relieve pain in her legs;

(g) A supporting letter from Ms Rutherford, the Plaintiff's treating psychologist, was provided. Ms Rutherford comments on the pain and mobility limitations as noted above. Ms Rutherford further states it would not be suitable for the Plaintiff to attend Court in Darwin because to do so may require her to engage with medical support in Darwin and, given her history, that may trigger significant psychological distress and compromise her ability to participate meaningfully in the proceedings. Ms Rutherford also comments on the Plaintiff's carer responsibilities for Tony. She concludes that "given these multifactorial barriers-medical, psychological and caregiving, it is my strong clinical recommendation that Ms Gibson be permitted to participate in court proceedings via telehealth or video link. This will enable equitable access to justice while safeguarding her health and ability to provide care for her son."

• [26] Ms Rutherford did not appear to state that actually giving evidence in Darwin would cause the Plaintiff further psychological injury, but rather, that may trigger significant psychological distress, if she engaged with medical support whilst in Darwin, given her past experiences.[23]
• [27] In respect to other matters, on the evidence provided in medical records, annexed to Mr Jones 24 September 2025 affidavit, the Plaintiff has had significant medical issues over the last approximately 10 years including: a spinal fusion in 2023 (by Dr Tollesson), a right shoulder reconstruction in 2022, a left hip replacement in 2020 and two top rib excision in 2018.
• [28] On the basis of the Plaintiff's evidence, it was submitted that, in determining whether to grant leave to appear by AVL, the Court needed to balance what was fair to the parties. The Plaintiff submitted that, although it had been recognised that the best course was to have viva voce evidence, that alternatives are available, and with improvements in technology, AVL did not present the detriment to parties that it once did. The Plaintiff submitted that any prejudice the Defendant may suffer could be ameliorated by taking alternate provisions, such as having a solicitor available to assist and the provision of electronic court books containing relevant documents.

• [29] The Defendant opposes the Plaintiff's application. The Defendant relies on the affidavit of Thomas Alexander Hutton made 25 September 2025. The grounds on which the application was opposed in submissions include:

(a) An apparent shift in focus by the Plaintiff from the original reasons for the application (i.e. her son's care) to the current reason (her own condition), which the Defendant says is indicative of the acknowledgement that the original grounds for the application were weak. Those weaknesses, it was submitted, were amplified by no further reasons given as to why the Plaintiff's husband could not care for Tony (along with the NDIS carers), following the original submissions filed. Further, the Defendant pointed to the apparent undermining of the Plaintiff's original concerns, in respect to Tony's care, should she be admitted to hospital for a period for surgery in the near future. Additionally, the Defendant submitted that the Plaintiff was attempting, using multiple excuses, to avoid the pressure, scrutiny and seriousness of giving evidence in person at Court;

(b) That following subsequent tests and procedures, the Plaintiff's condition is not as severe as first alluded to in Dr Tollesson's letter of 12 September 2025 (i.e. that she was unable to travel long distances due to pain and because it would cause her further injury to her back). Rather, it was submitted that the recent evidence from Dr Tollesson (via phone call with Mr Jones) was that the Plaintiff was able to travel (presumably to Darwin for trial) but that she would need morphine-based pain medication, which is likely to impair her ability to focus and function clearly, and that she will need to move around on the plane due to her limited mobility;

(c) That the delay in surgery, now not likely until after the trial, was an indication that the Plaintiff's back condition was not as serious as originally thought. Additionally, it was submitted that the Plaintiff had deliberately elected to delay surgery until after the trial in an attempt to avoid having to give evidence in person. The latter submission was not made lightly;

(d) The evidence in respect to the Plaintiff's condition was wholly unsatisfactory. No further report from Dr Tollesson was provided. Rather, the contents of a conversation between Dr Tollesson and Mr Jones was relied on, and this was inconsistent with an earlier advice of Dr Tollesson on 12 September 2025 which was left unexplained;

(e) Evidence from the Plaintiff that she had recently and frequently travelled to Brisbane and its surrounds for various recent medical appointments from her home on Russell Island which is around a three hour round trip by car (or more). The Defendant submitted that, if the Plaintiff was capable of such travel, she was capable of travel to Darwin including on plane where she can move about;

(f) That the Plaintiff is no stranger to taking strong pain medication as evidenced by her medical history, and in the past such medication had assisted her from travelling rather than prohibiting her from travelling;

(g) The letter from Ms Rutherford, psychologist, stated nothing more than had been known for years in respect to the Plaintiff's physical and mental conditions. Ms Rutherford's opinions as to what is ethical were irrelevant, and considerations as to discomfort/inconvenience, or what was ethical, do not displace the fundamental requirement for a fair trial and cross examination. Further, it was submitted that Ms Rutherford's opinions were beyond her expertise and appear to take the form of submissions advocating for the Plaintiff;

(h) The Plaintiff is the central witness in the proceeding and her credibility is squarely in issue, as are her alleged mental and physical conditions. She will be subject to lengthy and very intensive document cross-examination likely to take around 2 days (assuming she is present in person). It was submitted that it would be highly advantageous to her, and prejudicial to the Defendant, if she was allowed to avoid the pressure and solemnity of giving evidence from the witness box in person. It was submitted that, as an Applicant for the orders, the Plaintiff had failed to discharge the onus in establishing that it was in the interests of justice that she be permitted to give evidence via AVL.

• [30] In respect to s 49E(4) of the Evidence Act 1939 (NT), if the order is made, evidence will be given from a private conference room at Bay Ability in Redlands Bay, which has been booked with secure and adequate Wi-Fi. There is no further evidence given about the proposed location other than the address being near metropolitan Brisbane, and there is little reason to doubt that the internet facilities would not be sufficient for Court purposes. The Plaintiff is not giving evidence from overseas (such as the USA, Lebanon or Beijing) or a remote location in the Northern Territory.
• [31] In respect to s 49E(5)(d) of the Evidence Act 1939 (NT), there were no specific submissions in respect to whether making the order would promote (or not) the efficient use of available judicial and administrative resources. I cannot see that using AVL for one witness, albeit the primary witness, would necessarily be a detriment to judicial or administrative resources. One possible detriment is that the witness' evidence could take longer via AVL, which would cause the trial to take longer than it ordinarily would, possibly causing it to be adjourned part-heard and resulting in the unnecessary use of judicial and Court resources. That is speculative, as much depends on how the evidence plays out at trial. Alternatively, if the Plaintiff appeared in person, her evidence could be delayed by the need for short comfort breaks, which may also delay the trial. This consideration is neutral.
• [32] The primary consideration is 49E(5)(e) of the Evidence Act 1939 (NT), namely "other matters that the Court considers appropriate." That is, what will best serve the administration of justice, doing so consistently with maintaining justice between the parties? The determination of that question is a balancing exercise.
• [33] On the Plaintiff's evidence, I do not accept that she is medically incapable of travelling to Darwin. The most recent medical evidence indicates that her ability to travel may be restricted by pain, which could be managed with pain relief. In short, the Plaintiff could travel to Darwin, a trip that would likely take 8-9 hours door-to-door, it would be inconvenient, possibly painful (and she would need pain relief) and her ability to focus and her attention may be affected. To what degree the pain relief would affect the Plaintiff's ability to give evidence at trial is not clear. It would have been preferable to have received a more comprehensive report or letter from Dr Tollesson, who was no doubt aware of the possibility of the Plaintiff's need to travel to Darwin for trial, rather than to have information relayed via a telephone conversation with the Plaintiff's solicitor, leaving some aspects unsatisfactorily unresolved.[24] The Plaintiff's evidence is that adequate steps can be taken to ensure that a solicitor is present at the AVL location to assist with locating documents that she may be referred to in cross-examination, facilitated by an electronic court book. In respect to the original issue of care for the Plaintiff's son, Tony, as I understood the evidence, around the clock care is provided for Tony.[25] There was no evidence as to alternate arrangements which could be made to care for him in the Plaintiff's absence, even given the limitation of the Plaintiff's husband, other than a statement that there are no extended family or other support systems available.[26] I note that should the Plaintiff receive back surgery in the near future, accommodation would need to be made for Tony's care whilst she was absent in hospital in any event. I have considered the issue of Tony's care as a factor, and that an absence from the Plaintiff's home would not be preferable given the uncertainties relating to Tony's care including the remote possibility of urgent care being needed.
• [34] On the Defendant's case, its primary issue is that it will be deprived of a forensic advantage by having the Plaintiff give evidence by AVL particularly when issues of credit are in play. That factor cannot be easily ignored. The assessment of credibility could be facilitated by appropriate AVL accommodations (i.e. computer monitor on the judge's bench). I acknowledge that, although a judge may be satisfied with assessing a witness' credibility via AVL, it would nevertheless deprive cross examining counsel from the "cadence and chemistry - both as between bar and bench, and bar and witness box - that personify well run causes. Those are traditional forensic benefits of which litigants ought not too lightly be deprived."[27] I accept that, as a general proposition, it would ordinarily be preferable for oral evidence to be given in person in court. The Court is generally best assisted by being able to observe a witness in person when they give evidence, particularly when the demeanour of the witness may be relevant in assessing their credibility and the reliability of their evidence.
• [35] As for document-heavy cross-examination, my experience is that even in person document-heavy cross-examination does not necessarily operate perfectly whilst witnesses take time to find pages in hardcopy court books. Nevertheless, in person evidence, with reference to a hardcopy court book, reduces the risk of unanticipated breakdowns in technology with its flow-on effects. Given the advances in technology, electronic court books can be produced, loaded on the computer from which the witness is using to give evidence from, and screens shared (or alternatively, cross-examining counsel can bring up the document and share his/her screen with the witness, which should make the document appear on the witness' computer screen). Anticipated difficulties which may be posed by document-heavy cross-examination via AVL can be addressed if proper preparations are made. However, that leaves the risk of unanticipated difficulties and the loss of any forensic advantage.
• [36] In short, on one side of the scales I have a Plaintiff, a key witness, whose credit will be in issue, who likely will be cross-examined for two days (including via documents), who is capable of travelling to Darwin, albeit at some personal discomfort and inconvenience (including in respect to the care of her son), and a Defendant who does not wish to lose the forensic advantage that giving evidence in person provides, in a case where credit is hotly contested. On the other side, I have a Plaintiff who would no doubt suffer inconvenience (including in respect to risks of care to her son), discomfort by travelling, where her evidence could be, to some degree, practically given by AVL. The matter is finally balanced.
• [37] In my view, weighing up the competing interests in this application, I am of the view that the Plaintiff should give evidence in person at trial. I have given the matter considerable thought, and I have not reached my decision easily. The matter is finally balanced between ensuring fairness to the Plaintiff and to the Defendant. However, in the circumstances of this proceeding, the interest of justice is best served by requiring the Plaintiff to give evidence in person. The Defendant should not be denied the forensic advantage of cross-examination in person, nor should the Court be derived of the opportunity to assess the Plaintiff's evidence in person, as will be the case with the other lay-witnesses.[28] Those considerations do not, in my opinion, outweigh the competing considerations raised by the Plaintiff. I note that certain accommodations may still be made by the Court in respect to the Plaintiff's evidence (ie. providing rest breaks, or allowing a break in the event that urgent care issues arise in respect to the Plaintiff's son). Those are matters which I assume can be raised with the trial judge at the commencement of the trial. The Plaintiff's application is therefore dismissed. In respect to costs, I see no reason why the ordinary rule under Rule 63.18 of the Supreme Court Rules 1987 (NT), should not apply. However, should any party wish to make written submissions on costs they may do so within 14 days of the delivery of this decision, and the issue will be considered on the papers, otherwise Rule 63.18 shall apply.
• [38] I therefore make the following orders:
  1. The Plaintiff's application, on summons dated 28 July 2025, is dismissed.
  2. Subject to the receipt of any written submissions by the parties on costs within 14 days of these orders (which will then be reserved and considered on the papers), costs will be costs in the proceeding, pursuant to Rule 63.18 of the Supreme Court Rules 1987 (NT).

[1] By order of Kelly J on 9 May 2025.

[2] Further s 49F of the Evidence Act 1939 (NT) provides that evidence must not be given by audiovisual link unless both relevant places are equipped with audiovisual link facilities that enable relevant parties at both ends of the link to see and hear all appropriate persons.

[3] S 49E(5)(a)-(c) Evidence Act 1939 (NT) apply predominantly to criminal proceedings.

[4] The note to s 49E(5)(e) Evidence Act 1939 (NT) includes the example "Any special needs of the defendant, including the impact of any intellectual or physical disability, mental illness or the need for a support person."

[5] R v Baker [2021] NTSC 1 (Baker).

[6] Baker at [29]; Southernwood v Brambles Limited (No.2) [2022] FCA 973 at [29] (Southernwood).

[7] Tetra Pak Marketing Ltd v Musashi Pty Ltd [2000] FCA 1261.

[8] Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No. 3) [2009] FCA 1306; (2009) 181 FCR 152.

[10] See ACN 117 641 004 Pty Ltd (in liq) v S&P Global, Inc (No.5) [2025] FCA 687 at [13-14] ("S&P Global"); R v Walker [2025] NSWCCA 62 AT [32-37]. Although granted much of what occurred during the Covid pandemic was imposed upon the courts by matters of necessity due to lockdowns and restrictions on gatherings. See S&P Global at [15].

11 S&P Global at [18-19]; Southernwood at [42].

[12] Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; (2009) 181 FCR 152 at [78].

[13] Reliance Financial Services Aust Pty Ltd v Assaf [2022] NSWSC 1061 (Assaf).

[15] Mulberry Capital Management Pty Ltd v Shen [2022] NSWSC 1023 (Mulberry).

[16] R v Early (No. 4) [2023] NSWSC 505.

[17] Liu v Option Funds Management Limited [2022] FCA 444.

[18] Al Muderis v Nine Network Australia Pty Limited (No 5) [2025] FCA 908 (Al Muderis).

[19] S&P Global at [24] citing Southernwood at [43]-[44].

[20] I say primarily because reference was also made to the Plaintiff's own health conditions.

[21] By affidavit made 15 September 2025 and affidavit of 24 September 2025.

[22] On affidavit of the Plaintiff's solicitor Mr Jones, on information and belief, as to what he was told by the Plaintiff by telephone on 11 September 2025 (Jones Affidavit of 15 September 2025), and subsequently in a conversation between Mr Jones and Dr Tollesson on 23 September 2025 (Jones Affidavit of 24 September 2025).

[23] Unlike the situation in Al Muderis.

[24] See Hulme v Hulme [2023] NSWSC 299 at [94-100] citing Magjarraj v Asteron Life Limited [2009] NSWSC 1433 at [22] and other cases in the context of medical reasons for adjournments, although in this case the evidence was not necessarily a cryptic written statement, the Courts have made clear the need for the preference (usually) of an explanation, on oath, from the medical practitioner of the illness and the reasons for the litigant's inability to attend Court.

[25] See paragraphs [107] and [152] of the affidavit of Adele Gibson made 4 June 2024 filed in the proceeding.

[26] Affidavit of Adele Gibson made 25 June 2025 at paragraph [3g].

[27] Rooney v AGL Limited (No.2) [2020] FCA 942 at [18].

[28] Some of whom will likely give evidence contrary to the Plaintiff's.