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[2026] NSWSC 1222
Supreme Court of NSW
2026-10-01
Emmett J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: McClure v Lam (No 3) [2026] NSWSC 1222
Hearing dates: 01 October 2026
Date of orders: 01 October 2026
Decision date: 01 October 2026
Jurisdiction: Common Law
Before: Emmett J
Decision: (1) Note that the plaintiff confirmed that she will not rely at trial on those parts of Exhibits A and B, tendered before the Court and placed with the papers, that have been struck through.
(2) Pursuant to s 5B of the Evidence (Audio and Visual Links) Act 1998 (NSW) and r 31.3 of the Uniform Procedure Rules 2005 (NSW), Dr Wael Agur may give evidence by audio visual link, including from a place outside Australia, at the final hearing commencing 19 October 2026.
(3) Dismiss the plaintiff’s notice of motion so far as it concerns Dr Dionysios Veronikis.
(4) Direct the parties to send to the Chambers of Justice Emmett, by no later than 10:00am on Wednesday 7 October 2026, an agreed protocol, or if unable to agree, two competing protocols for the giving of evidence by Dr Agur via audio visual link.
(5) List the matter for directions on Thursday 8 October 2026 at 9:30am.
(6) Reserve the question of costs thrown away by reason of the plaintiff’s withdrawal of evidence as recorded in Exhibits A and B tendered today.
(7) Each party is to bear their own costs of the notice of motion before the Court today.
Original judgment source is linked above.
Catchwords: CIVIL PROCEDURE — Evidence by audio visual link — where plaintiff applied for order under s 5B of Evidence (Audio and Audio Visual Links) Act 1998 (NSW) for two urogynaecologists to give evidence by audio visual link (AVL) from the United States of America and Scotland — where plaintiff seeks to adduce expert evidence from both witnesses — where plaintiff seeks to also call one of the witnesses as a witness of fact — where plaintiff has adduced evidence of significant cost associated with in-person attendance for trial — whether evidence can more conveniently be given in the courtroom — whether order would be unfair to defendant — whether it is an appropriate exercise of discretion to grant the order — whether it is in the interests of justice to make the order — order made allowing plaintiff to adduce evidence by AVL from the urogynaecologist providing solely expert evidence, but not from the urogynaecologist whom the plaintiff intends to call as a witness of fact
Legislation Cited: Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 5B, 7
Uniform Civil Procedure Rules 2005 (NSW), r 31.3
Cases Cited: Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250
ASIC v Rich (2004) 49 ACSR 578; [2004] NSWSC 467
Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152; [2009] FCA 1306
King v Rail Corporation New South Wales [2012] NSWSC 832
Markisic v United States of America [2006] NSWSC 839
In the matter of Sunnya Pty Ltd [2023] NSWSC 1286
Stott v Advanta Seeds Pty Ltd [2020] NSWSC 846
Category: Procedural rulings
Parties: Rachel McClure (Plaintiff)
Alan Lam (Defendant)
Representation: Counsel:
S Roulstone (Plaintiff)
S Grey (Defendant)
Solicitors:
Martin Street Lawyers (Plaintiff)
Avant Mutual (Defendant)
File Number(s): 2020/00202054
Publication restriction: Nil
By notice of motion filed 1 September 2026, the plaintiff seeks orders under rule 31.3(1) of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) or s 5B of the *Evidence (*Audio and Audio Visual Links) Act 1998 (NSW) (‘AVL Act’) for two expert witnesses, Dr Wael Agur and Dr Dionysios Veronikis, to give evidence by audio visual link (‘AVL’) at an upcoming trial.
Rule 31.3(1) of the UCPR provides:
(1) If the court so orders, evidence and submissions may be received by telephone, video link or other form of communication.
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.
…
(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. (emphasis added).
The plaintiff accepts that s 5B governs the application including the application under r 31.3. The substantive proceedings are a claim by the plaintiff following surgery undertaken upon the plaintiff by the defendant in connection with a pelvic organ prolapse. The surgery, which involved the application of pelvic mesh and a particular kind of sub-urethral sling, occurred in November 2013.
The plaintiff claims that the defendant failed to give appropriate advice, the result of which it is said would have been that she would have accepted a more conservative line of treatment as an alternative to surgery. The plaintiff claims that a different procedure should have been undertaken and that the way in which the surgery was performed departed from a reasonable standard.
These proceedings were commenced in 2020.
In June 2023, the plaintiff travelled to Missouri and underwent surgery with Dr Veronikis, removing the mesh and the sling.
The trial in this matter has been set down to commence on 19 October 2026 and to run for seven days.
Expert reports have been served by six gynaecologists, including Dr Agur and Dr Veronikis.
Dr Agur is a urogynaecologist in Crosshouse, Scotland.
Dr Veronikis is a urogynaecologist and reconstructive pelvic floor and vaginal surgeon in St Louis, USA.
They have both prepared reports in these proceedings, Dr Agur having prepared two dated 9 February 2022 and 4 January 2023 and Dr Veronikis having prepared one dated 1 January 2024.
When an expert report by Dr Veronikis was served, the defendant in correspondence objected to his evidence as an expert, including objecting to him participating in an expert conclave, on the basis that he was a witness of fact.
Despite that objection, on 25 May 2026, all six experts participated in an expert conclave. (In referring to Dr Veronikis as one of the experts, I am not intending to foreclose defendant’s contention that he should not be permitted to give opinion evidence, a matter to which I will return.)
Following the conclave, the experts produced a joint report in which they all answered a set of agreed questions with various answers or responses being attributed to individual experts. In Dr Veronikis’ answers or responses, he makes a number of statements about what he observed when he saw the plaintiff in 2023.
At the beginning of the hearing, plaintiff’s counsel indicated that not all of Dr Veronikis’ evidence would be relied upon at trial. The plaintiff was given an opportunity to prepare a version of Dr Veronikis’ report and the joint report with parts struck through that would not be relied upon. These became exhibit A and B before me. The result is that, on plaintiff’s case, Dr Veronikis will give evidence about both factual matters and matters of opinion but the plaintiff’s counsel accepted that Dr Veronikis will in effect be primarily a witness of fact, albeit that he will also be called to give opinion evidence should the Court permit him to do so.
The defendant has foreshadowed that he will object at trial to Dr Veronikis being permitted to give opinion evidence, given he is a witness of fact. That is not a matter for me but will be a matter for the trial judge. However, it is relevant to understand that Dr Veronikis may give evidence in one or both of two different ways. If defendant’s objection to opinion evidence is successful, then he will be a witness of fact and it is likely he will give evidence on his own. If he is permitted to give opinion evidence as an expert, then it may be appropriate for him to give evidence concurrently with the other experts. The defendant foreshadowed contending that this would be appropriate to enable his opinions to be tested and explored alongside those of his peers. It is not for me decide today how that would proceed, but it is relevant to my assessment that Dr Veronikis may be giving evidence both as a lay witness and as an expert, and that he might be giving evidence on his own as well as in conclave with the other experts.
Relevantly, the plaintiff says that Dr Veronikis will be giving lay evidence which is of forensic value to the plaintiff. The plaintiff accepts that this lay evidence relates to factual matters which will be in contest and will be the subject of cross-examination.
As I said earlier, for convenience, I will continue to refer to Dr Veronikis as one of the experts, but it must be understood that this is subject to what I have said about Dr Veronikis now giving evidence that will, at least in significant part, be lay evidence of what he observed when he met with the plaintiff and operated on the plaintiff in 2023.
The plaintiff has adduced evidence of the cost of requiring the two overseas experts to attend in person. Dr Agur’s estimate is slightly over $110,000 AUD. Dr Veronikiseronikis’ estimate is slightly over $275,000 AUD. The plaintiff says they require 7 days including travel time, the length of the hearing and the time taken to “acclimatise”. Dr Veronikis’ estimate involves four days associated with travel plus nine days for the trial, which I assume includes two days of weekend or preparation.
The plaintiff says in submissions that the evidence of Dr Agur and Dr Veronikis is “crucial” to her case.
The context is a claim in which the plaintiff has particularised as being for just under $3 million. I take this into account as relevant to questions of proportionality.
Defendant relies on five matters in opposing the orders:
Dr Veronikis is not just an expert witness but a witness of fact.
It inhibits the Court’s ability to assess the reliability of Dr Veronikis’ and Dr Agur’s opinions for them to give evidence via AVL.
The evidence of the six gynaecologists will take materially longer if two of them are not in the courtroom
It is impractical having regard to the different time zones and “the usual vagaries associated with AVL calls”.
It is unfair to the defendant because the defendant is unable to take witnesses to documents in the ordinary way and to test fairly the opinions of the experts against their peers.
I will return to these matters in more detail.
Although the defendant notes non-compliance with the requirement in the Practice Note that an application of this kind, absent consent, should be made at least two months before the trial, the defendant’s opposition is based on the more substantive issue of what the defendant contends are impracticalities and unfairness.
In relation compliance with the Practice Note, the plaintiff first raised this issue some eight to ten days after the date required in the Practice Note. I stress that while the Court has been able to deal with this matter despite this non-compliance, it is unsatisfactory for these applications to be made outside the time required by the Practice Note. It is not just a matter of fairness to the other party, it is also important to enable this Court to manage its business. Parties are expected to comply with this requirement as with other requirements of the Practice Note.
The discretion to grant or refuse an application under s 5B arises only where none of the excluding circumstances in s 5B(2) is present. The defendant says the Court should be satisfied that:
the evidence can more conveniently be given in the courtroom (s 5B(2)(b)); or
the direction would be unfair to the defendant (s 5B(2)(c)).
The defendant relies on the following considerations, drawn from the reasons of Austin J in ASIC v Rich (2004) 49 ACSR 578; [2004] NSWSC 467 (‘ASIC v Rich’):
Importance of the evidence (ASIC v Rich at [20]-[23]) and assessment of credit (ASIC v Rich at [24]-[28]): The defendant says the evidence of both experts is central to the case, and that the reliability and weight of their opinions will be challenged. The defendant contends that an important part of the value of concurrent evidence lies in each expert being able to be tested in real time by the cross-examiner with their opinions put against those of their peers in the witness box. I accept this is the case. This frequently occurs effectively in this Court, with one or more experts appearing by AVL.
The defendant refers to the two experts having an “advantage” of giving evidence removed from the immediacy of the courtroom. That is a matter that may affect the weight the Court places on their evidence, although experience tells that, experts are giving evidence concurrently, the focus is usually on how various experts respond to the substance of the opinions offered by their fellow experts during the concurrent evidence.
Management of documents (ASIC v Rich at [29]-[32]): The bundle of enclosures for the conclave and joint report was 696 pages. The medical literature on the evidence before me presently extends to 1,692 pages. If evidence is given by AVL, it will require copies of this material to be in place in paper or electronic form before the experts as well as in Court. While I take this into account, experience tells that with today’s technology, witnesses and parties are able to navigate much larger bundles remotely.
Timezones, length of evidence and technology (ASIC v Rich at [33]-[39]): I take on board the risk of technical interruption across three sites. That creates a risk of delay. It is, however, something this Court frequently needs to grapple with. In light of the time zone differences, the defendant submits that the Court could not be confident that the evidence given by experts overseas reflects those experts at their best. This consideration, if it operated, would operate adversely to the plaintiff. In any event, it is a matter that can be the subject of submissions as necessary. This Court is well-versed in appropriate steps to ensure witnesses are able to give evidence in a way that assists the Court.
Costs (ASIC v Rich at [22], [28], [45]): The defendant contends that the cost estimate given by the two experts is surprising and that the cost is a consequence of the plaintiff choosing to engage experts located overseas. I will return to these matters. In fairness, the defendant properly accepts that in person attendance will be more expensive. I am satisfied on the material before me that it will be substantively more expensive for the two witnesses to appear in person.
Justice Austin recognised at [28] that on many occasions, it will be as easy to assess the credit of the witness in AVL as in person. His Honour observed in the same paragraph that, where the Court is given a choice between AVL and viva voce evidence, the Court is likely to regard viva voce evidence as the safer course unless there is a good reason for preferring the audiovisual approach. His Honour does give a large cost differential as an example of such a reason.
During argument, the Court raised or was referred to other decisions that may assist.
In King v Rail Corporation New South Wales [2012] NSWSC 832*,* Garling J at [7] identified a suite of features that his Honour noted as relevant. Many of them having a bearing on this case. They include that:
the applicant for AVL orders retained the expert, and the expert accepted the retainer, in circumstances where the ordinary practice of the Court is that evidence should be in person;
the witness is not a witness of fact;
it was the choice of the party seeking AVL orders to retain an expert who lives and works overseas. There is no suggestion that the expertise is unique or unavailable in Australia;
the breadth of issues about which the evidence will be given;
considerations are identified referable to the timezone, technical practicability, and the impact of the AVL link on the quality of the evidence or the cross-examiner’s ability to test that evidence.
Justice Adamson in Stott v Advanta Seeds Pty Ltd [2020] NSWSC 846 at [12]:
It is undoubtedly the case that barristers and judges are generally more comfortable with the time-honoured approach of having a witness present in the courtroom to give evidence in the same courtroom as the barristers and the judge. There are clearly practical advantages to this course in many cases. It is easier to show a witness a document; it is easier to observe the witness’s response to a question; and it is easier to observe the reaction of the tribunal of fact (whether judge or jury) to the evidence. However, this procedure comes at a considerable cost. It may be inconvenient and expensive for witnesses to attend court in person. It may be disruptive to their lives.
President Bell in Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250 at [50] (Bathurst CJ and Payne JA agreeing) observed that constraining a party to cross-examine a witness by video link will not always, but may sometimes, involve a degree of unfairness, but it will depend on all the circumstances. An assessment of unfairness is necessarily a judgment of an evaluative character. President Bell identified as relevant considerations many of the matters which the defendant draws from Austin J’s decision in Rich. His Honour also recognised that in some cases, unfairness may be wrought where the cross-examiner is deprived 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.
His Honour cited Buchanan J in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152; [2009] FCA 1306 (‘Campaign Master’) at [78] for this proposition. Two other related considerations emerge from that paragraph of Buchanan J’s judgment, namely, that:
it enhances the prospect of the witness remaining conscious of the nature and solemnity of the occasion and of their obligations in that context, and
at least in some cases, it provides the Court with a more satisfactory environment in which to assess the nature, quality and reliability of responses by a witness.
Justice Buchanan continued:
To my mind there remains, even in the modern context, a certain “chemistry” in oral interchanges in a courtroom, whether between a judge and counsel (or other representative) or between cross-examiner and witness. I would not wish too lightly to deprive a cross-examiner of that traditional forensic element in the exchange although, as the cases universally make clear, the court must now, if asked to do so, balance the interests of a cross-examining party against claimed inconvenience both in individual cases and with respect to individual witnesses. Notwithstanding the increased availability and use of video link technology, in my view, a case must be made out for the use of video link evidence if it is opposed by an affected party.
These considerations warrant real weight, including in the context of expert evidence. While the arrangements that needed to be put in place during the COVID pandemic in 2020 and 2021 led to this Court becoming much more experienced in receiving evidence remotely, and demonstrated substantial advances in technology, I regard the considerations articulated in cases like Antov v Bokan and Campaign Master as important.
The defendant’s counsel stressed further that there is a certain chemistry that arises between experts in concurrent evidence, which can also be significant. I accept this and it is a matter that warrants weight.
At the same time, technology has advanced considerably since Austin J decided ASIC v Rich in 2004. This Court is amply capable of assessing witnesses over AVL, including where there are serious challenges to their credit and to the weight that should be accorded to their opinions.
Ultimately, the focus must be on the particular circumstances of the case at hand.
I deal first with the two exclusionary matters on which the defendant relies.
The question whether the evidence can be more conveniently given requires consideration of the convenience not only of the witness and the party calling that witness, but also the convenience of the other parties and the Court: In the matter of Sunnya Pty Ltd [2023] NSWSC 1286 at [139].
Defendant’s counsel raised a number of issues for the first time during oral argument in relation to convenience:
there was no evidence of the witnesses saying that they understand the time differences and the possible times they may be required to give evidence. This submission appears to overlook affidavit evidence from the plaintiff’s solicitor. That affidavit evidence satisfies me that the two experts understand about the time difference and likely times they may be required to give evidence;
there was no evidence of how the documents were going to be put before the witness; and
there was no evidence of where the witnesses would be when they gave evidence.
While these are relevant considerations and warrant attention before the trial commences, I am not persuaded to place significant weight on them in relation to the question of convenience before me. As to the logistics of placing documents before the witnesses, or evidence of where those witnesses will be when they give evidence, those are matters that parties acting cooperatively, mindful of the guiding principles of civil litigation, should be able to address between themselves. If need be, they are matters that the Court can rule upon in advance of a trial.
As I have indicated, the defendant made submissions about the cost estimate including Dr Veronikis’ estimate. That estimate included, as I have said, four days of travel and nine days of attendance in Sydney. The defendant submitted, and I accept, that nine days may be an overestimate. I also accept that some of those costs would be incurred even if the experts gave evidence remotely [such as a daily fee for one or more days], and permitting the experts to give evidence remotely would have some other costs [such as the costs of putting necessary arrangements in place]. Nevertheless, as I have said, I am satisfied that if they were required to travel here to give evidence, it would be substantially more expensive for the plaintiff.
Moving to other aspects of convenience, when I take into account the Court’s experience with modern technology, and mindful of the convenience of the Court, the parties and the witnesses themselves, I am not satisfied that the evidence can be more conveniently given in the courtroom. Requiring the two experts to appear in person involves substantial additional expense and considerable personal inconvenience. I recognise the likely need to make more comprehensive arrangements in advance of the hearing, the risk of delay, and the possibility of technical difficulties. If these risks do not eventuate, the inconvenience to the Court and the defendant will be relatively minor, and even if they do eventuate, experience tells that they are more likely to lead to a short delay than a long one. Taking into account the convenience of all parties, witnesses and the Court, I am unable to find that it would be more convenient for the experts to travel to Sydney to give evidence.
While I am not affirmatively satisfied of the exclusionary matter in s 5B(2)(b), I nevertheless take into account these considerations of convenience when I come to the exercise of discretion.
An assessment of unfairness is an evaluative judgment.
I take into account the value to the Court of the witnesses interacting and responding to each other’s opinions. As I have said, I place significant weight on the considerations articulated in cases like Antov v Bokan and Campaign Masters.
At the same time, the Court’s experience and other case management powers must be borne in mind. I take into account the wide range of powers the trial judge will have to address circumstances as they arise, to avoid what might otherwise be an unfairness to the defendant. When I take those matters into account, the material before me does not enable me to make an affirmative finding that it would be unfair to the defendant to permit evidence by AVL.
That is not the end of the inquiry. Although I am not affirmatively satisfied that it would be unfair to permit the witnesses to give evidence by AVL, that does not require an outcome favourable to the plaintiff. An applicant for AVL orders does not acquire a right for evidence to be given or submissions made by AVL simply because the defendant has not satisfied the Court of any of the matters in s 5B(2).
The Court retains a discretion, and it seems to me that the discretion should be exercised having regard to considerations that include convenience and the various reasons why giving evidence by AVL may be less effective, including the matters in Antov v Bokan and Campaign Masters.
The Court must be persuaded that it is an appropriate exercise of discretion to grant the order.
In this regard, s 5B(3) of the Act warrants attention. Where an application is made for a person to give evidence from a place within New South Wales, the Court must not make the direction unless the applicant satisfies the Court that it is “in the interests of the administration of justice” to do so. In Markisic v U**nited States of America [2006] NSWSC 839 at [8], McLelland CJ at CL expressed the view that, even where the application is for someone to give evidence outside New South Wales, the Court should consider whether or not it is in the interests of the administration of justice for the Court to make the order. (I note that where the person is in a participating State, s 7 will apply but that is not engaged in the present circumstances.)
There is force in his Honour’s view and I would not be minded to exclude the interests of justice from consideration. However, s 5B(3) may indicate that, where the proposed witness is outside New South Wales and not in a participating state, there is no separate persuasive burden on the applicant to satisfy the Court that the order is in the interests of the administration of justice. It may also be that “the interests of the administration of justice” (emphasis added) require particular focus on the convenience and integrity of the Court procedure and in that respect is a narrower inquiry than asking whether a particular order is in the interests of justice.
Ultimately, it is not necessary for me decide this issue. There is ample authority that good reason must be shown before an order is made. The plaintiff accepted I should proceed on that basis. It is not necessary to decide whether or not this is equivalent to the applicant satisfying the Court as to the interests of the administration of justice in the manner required by s 5B(3).
It is convenient to deal first with the position of Dr Veronikis. I need to proceed on the basis that he will be giving evidence about disputed factual matters and that he might be giving opinion evidence alongside the other experts who have been retained. There will be an unavoidable intertwining of Dr Veronikis’s evidence as to factual matters and his opinion evidence. This may be the case even if substantial parts of Dr Veronikis’s evidence as an expert witness are excluded. The evidence of a treating doctor often involves an element of opinion evidence even if they are only called as a lay witness. It may be that, even if Dr Veronikis is not permitted to give evidence as an independent expert, it is nevertheless appropriate to receive opinion evidence from him. A doctor’s explanation of what they observed will sometimes be unavoidably mediated through their expertise, and they may, although called as lay witnesses, describe their observations in terms that include conclusions they are able to draw from their observations based on their study and experience. These will all be matters for the trial judge.
The defendant’s counsel tells the Court that Dr Veronikis’s evidence will be the subject of robust challenge, both as to reliability and credibility. I have no reason to doubt this. While the plaintiff submitted that expert evidence is not generally subject to credit attacks, first I have some reservations about that as a general proposition and second, I cannot exclude the possibility of credit attacks on experts. More importantly for Dr Veronikis, he is not merely or even primarily giving evidence as an expert witness – he will also be a witness of fact.
The plaintiff’s decision to advance Dr Veronikis as a witness of fact as well as an expert means that the various ways in which he gives evidence may be difficult to disentangle. The defendant should have a proper opportunity to challenge Dr Veronikis’s evidence in all these respects. Depending on the Court’s ruling as to admissibility, it may be necessary for Dr Veronikis to be given directions about what he can and what he cannot give evidence about. The trial judge may need to be more actively involved in how Dr Veronikis gives evidence. Different approaches may need to be taken to evidence received from Dr Veronikis when in the witness box alone and when (if this is permitted) giving concurrent evidence. While these difficulties are not insurmountable, they create the prospect that his evidence will be more complex than the evidence frequently given both in person and remotely by experts in this Court.
When I take all those matters into account, I cannot accept that it is appropriate to permit the plaintiff to call evidence from Dr Veronikis by video-link.
The position is different for Dr Agur. He will be giving evidence solely as an expert. In light of my decision about Dr Veronikis, he will be the only expert giving evidence remotely. I do take into account the fact that it was the plaintiff who chose to retain Dr Agur, a matter which warrants real weight in the defendant’s favour. Nevertheless, while I recognise that there is a risk of technical issues, I am not persuaded they are any more likely to cause disruption in this case than in any of the many other cases in which experts give evidence by AVL. If there is disruption, it is likely to be of brief rather than lengthy duration. While I place weight on the volume of documentary material and the breadth of issues, it is well within the Court’s capacity to deal with it. While the trial judge will need to ensure fairness in circumstances where one witness will be online and the other witnesses will be in person, I am satisfied that the Courts usual powers to control the proceedings will be adequate to ensure fairness.
Accordingly, I make the following orders:
Note that the plaintiff confirmed that she will not rely at trial on those parts of Exhibits A and B, tendered before the Court and placed with the papers, that have been struck through.
Pursuant to s 5B of the Evidence (Audio and Visual Links) Act 1998 (NSW) and r 31.3 of the Uniform Procedure Rules 2005 (NSW), Dr Wael Agur may give evidence by audio visual link, including from a place outside Australia, at the final hearing commencing 19 October 2026.
Dismiss the plaintiff’s notice of motion so far as it concerns Dr Dionysios Veronikis.
Direct the parties to send to the Chambers of Justice Emmett, by no later than 10:00am on Wednesday 7 October 2026, an agreed protocol, or if unable to agree, two competing protocols for the giving of evidence by Dr Agur via audio visual link.
List the matter for directions on Thursday 8 October 2026 at 9:30am.
Reserve the question of costs thrown away by reason of the plaintiff’s withdrawal of evidence as recorded in Exhibits A and B tendered today.
Each party is to bear their own costs of the notice of motion before the Court today.
**********
Coversheet - corrected case title
McClure
Lam (No 3)
(2019) 101 NSWLR 142
(2009) 181 FCR 152