Lawrence v Arambasic

Supreme Court of NSW|2023-08-16|Before: Chen J

Introduction

This is an application brought by Jasmin White ('the second plaintiff') 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) ('the UCPR') that a witness - Saifur Rahman - be permitted to give evidence via audio-visual link.
The defendant opposes the making of the order.

Background

By way of brief summary, by her amended statement of claim filed 5 October 2022, the second plaintiff seeks relief against the defendant including: 1. a declaration that a loan agreement dated 12 December 2012 and mortgage dated 20 December 2012 is binding on the defendant; 2. a declaration that the defendant is in default of the loan agreement and the mortgage; and 3. possession of a property located at XX XXXX XXXX, Lightning Ridge NSW 2834 ('the property').
By his defence filed 15 December 2022, the defendant denies entering into the loan agreement and the mortgage: his essential case is that the conveyance of the property was gifted to him by the second plaintiff.
The matter is listed for hearing on 4 September 2023, with an estimate of 2 days.
At the time of the events the subject of the dispute, Mr Rahman (who is the brother of the second plaintiff) lived in Canberra. The evidence of Mr Rahman - as contained in his affidavit affirmed 22 March 2023, but disputed by the defendant - goes toward the alleged entry of the defendant into the loan agreement and mortgage at Mr Rahman's house in Canberra in December 2012. Put very simply, Mr Rahman's evidence is that the defendant attended his home in Canberra, at that time, and executed the loan agreement and mortgage. That version of events is said to have been witnessed by Mr Rahman's wife who is not, however, expected to give evidence in the proceedings.

The statutory provisions and relevant principles

As I have earlier noted, the second plaintiff relies upon r 31.3 of the UCPR and s 5B of the Act.
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.
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.
In relation to s 5B of the Act, three matters should presently be noted. First, the party seeking the order bears the onus of establishing that it is appropriate for it to be made: North v Daniel [2021] NSWSC 828 at [27] ('North'). Secondly, its effect 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). As I later explain, the defendant opposes the order principally on the ground that it would be unfair. Thirdly, 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].

Consideration and disposition

The defendant opposes the order sought essentially arguing that it would be "unfair" to him if an order was made (s 5(2)(c) of the Act). Specifically, the defendant identifies the following matters which, he argues, support refusing the order sought (which, I add, extend beyond simply "unfairness"): 1. first, the importance of the evidence - in particular given that the credibility of the witness is argued to be a "major issue" (defendant's submissions at [7]-[9]); 2. secondly, the absence of satisfactory arrangements in place to ensure the integrity of the court process (defendant's submissions at [7] and [11]); and 3. thirdly, any inconvenience and costs associated with the requirement to give evidence cannot justify "the impingement on [the defendant's] rights" (defendant's submissions at [10]).
I accept that the evidence of Mr Rahman is important and, given the nature of the issues in the proceedings, that the circumstances surrounding the alleged entry into the loan and mortgage documentation is a - possibly the - central issue in the proceedings. That is particularly the case where, as here, the defendant flatly denies executing them: at least part of the defendant's case is that he signed "lots of documents", and it might possibly have extended to these ones. There is not, given the competing versions, any likelihood that the matters covered by Mr Rahman's evidence could be attributable to, say, faulty recollection. The same is equally true in relation to the version of events to be given by the defendant.
Mr Rahman's affidavit is not overly long: it is around four pages, and there are five key paragraphs of it that relate to the execution of the loan and mortgage documentation: see the affidavit of Saifur Rahman sworn 22 March 2023, pars 18-23. It was confirmed during the hearing that there is no issue about the authenticity of these documents, including the signatures on them.
In Antov, it was said that constraining "a party to cross examining a witness by video link will not always, but may sometimes, involve a degree of unfairness to that party, depending on all the circumstances of the case", and that an "assessment of unfairness necessarily involves a judgment of an evaluative character": at [50].
In this respect I accept that the relevant circumstances include the importance of Mr Rahman's evidence; the fact that his credit must be in issue (on the defendant's case); and that the cross examination would inevitably involve cross examination upon documents. I also accept that the testing of the credibility of a witness in person is, generally speaking, preferable to AVL.
However, there are a range of matters that put these issues into some perspective - being: (a) although the cross examination would involve documents, they are limited (being the loan and mortgage documentation annexed to Mr Rahman's affidavit); (b) the documents are in English; (c) from the submissions made, there is no issue about the authenticity of the documents or the signatures that appear on them - the defendant's case is that these documents were certainly not signed in the circumstances that Mr Rahman deposes to, nor at that time; (d) to the extent there are disadvantages in not having a witness in person, that does not inevitably mean that any disadvantage only flows in the direction of the defendant; and (e) it is the general, albeit not invariable, experience that the assessment of the demeanour of witnesses can be adequately and appropriately assessed via AVL: see Sanson v Sanson [2021] NSWSC 417 at [31] (and the authorities there cited); North at [29]-[30]. Consistent with these authorities, and the other matters referred to, I am satisfied that the "credibility" of Mr Rahman can be adequately and appropriately assessed in this case.
The defendant submitted that the "necessity of documents to be put to" Mr Rahman extended beyond the loan and mortgage documents because of the nature of the property dealings that the second plaintiff had (defendant's submissions at [12]). In my view it is difficult to give any significant weight (including forensic weight) to this submission given that it appears to be confined to a contention that Mr Rahman is a beneficiary of the second defendant's "seemingly endless dealings in property". If indeed he is, then that impresses as a matter that can be simply and easily established by the various documents that I infer, based upon the submission, that the defendant has in its possession. My assessment, as I indicated above, is that there are likely to be only limited key documents.
The defendant also submitted that refusing the relief sought was not only fair to him, but also to the witness: it was submitted that it would be "fair to Mr Rahman that he be physically present" when serious matters are likely to be put to him (defendant's submissions at [13]). In my view, in connection with that issue, the cross examination can undoubtedly be conducted fairly by AVL, whether the matters that are ultimately to be put to Mr Rahman are serious or otherwise.
My assessment, and finding, is that it would not be unfair to make the order (s 5B(2)(c)).
The defendant further argues that, whilst he accepts that "no issue is taken with [the] practicalities of the technology", the second plaintiff is yet to put forward any substantive procedure to ensure the integrity of the examination process. Instead, the defendant argues, the second plaintiff has offered nothing more than vague assurances.
These are important considerations. However, contrary to what was argued by the defendant, I am satisfied that the formality of the proceedings can be appropriately maintained. That would occur not only because Mr Rahman has assured the Court that he will give evidence, from his own office, in a manner that is solemn and befitting of a court hearing (affidavit affirmed 13 August 2023, par 9), but because the usual court processes (including any appropriate directions from the trial judge) will remain. To the extent that the defendant requires documents to be put to the witness to be held by, say, a legal practitioner pending the cross examination of Mr Rahman, the evidence did not disclose that there were any documents of that kind. My assessment, absent any evidence about this topic, is that the use of documents is unlikely to be the cause of any significant difficulty.
I am also satisfied, based upon Mr Rahman's evidence, that the technology itself will be sufficient. Mr Rahman has an IT background, and has used the facilities on other important occasions, including appearing on "talk shows" on various TV channels in Bangladesh. I am therefore satisfied that the necessary facilities are available (s 5B(2)(a)).
Finally, the defendant argues that any inconvenience, and costs, associated with a requirement that Mr Rahman attend to give evidence in person cannot outweigh the defendant's right to have him attend and give evidence in person. I disagree. That is particularly so in circumstances where (given the entire hearing is listed for two days) the likelihood is that the cross examination of Mr Rahman will be measured in, and most likely limited to, a number of hours whereas the length of time involved in Mr Rahman giving evidence in person at the hearing would be significant: Mr Rahman would need to travel to the closest international airport, travel to Australia, be present at the hearing, and then return. His assessment was that the time involved was likely to be 10 days. My assessment is that it would not be so long, but it would certainly be in the order of one week. I am therefore satisfied that the evidence from Mr Rahman is more conveniently given in Bangladesh (s 5B(2)(b)).
There are other matters which are relevant to the determination, including the following. First, absent an order there is a significant risk that Mr Rahman would not give evidence in the trial, which would have a significant impact on the evidentiary material that otherwise would be available for consideration. Secondly, there was no suggestion that time differences between the two countries were a matter of significance in the overall determination. To the extent that it will be necessary to adjust the Court's sitting hours, then arrangements can undoubtedly be made for that to occur and, to the extent that it is needed, my admittedly preliminary assessment was that the cross examination would be reasonably confined in its length. Thirdly, to the extent that this application is brought close to the scheduled hearing it appears that no formal notice was given to the plaintiff that Mr Rahman would be required for cross examination until shortly prior to a directions hearing earlier this month - although the explanation for this, no doubt, lies in the fact that neither side have solicitors representing them, and counsel who appear are conducting the matter on a pro bono basis.
To recap: I am satisfied that an order should be made to permit Mr Rahman to give evidence by audio-visual link from Bangladesh, and that it would not be unfair to the defendant to make that order.
The parties both appeared through counsel on a pro bono basis. I wish to record my gratitude for them doing so, and for the quality of the assistance that they provided to the Court.

Orders

For the above reasons I make the following orders: 1. Direct that, pursuant to r 31.3 of the Uniform Civil Procedure Rules 2005 and s 5B(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), Saifur Rahman's evidence be taken by audio visual link from Bangladesh. 2. Order that the costs of the current application be reserved.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 August 2023

(2019) 101 NSWLR 142

At a glance

Court

Decision date

Before

Source

Judgment (6 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (5)