Sanson v Sanson

Background

1. These proceedings, which were commenced by the plaintiffs on 28 March 2018, concern a joint venture between the plaintiffs and the defendant, who are members of the same family, to purchase and develop eight industrial units on a property in Port Macquarie, New South Wales. Construction of the units was completed on or about 18 November 2017. The parties are in dispute about the terms on which the units were to be developed by the parties, the parties' interests in the units and who is responsible for the cost of the building works, including any defects.
2. By further amended statement of claim filed on 9 April 2020, the plaintiffs seek a variety of alternative relief, including a transfer of certain of the units by way of specific performance, damages for breach of the alleged joint venture agreement, an order appointing statutory trustees for the property for sale or partition under s 66G of the Conveyancing Act 1919 (NSW), a quantum meruit claim for work and services rendered and restitution for amounts contributed, a declaration of trust over rental income derived from certain units, and equitable compensation or damages for breach of fiduciary duty.
3. By her second amended statement of cross-claim filed on 5 March 2020, the defendant seeks an order under s 237 of the Competition and Consumer Act 2010 (Cth), Sch 2 - Australian Consumer Law varying the alleged joint venture agreement and damages for breach of contract or, in the alternative, damages for negligence.
4. On 17 August 2020, Ward CJ in Eq listed the proceedings for a seven-day hearing commencing on 12 May 2021. On that occasion, her Honour also made orders relating to the completion of the evidence and other preparatory steps for trial, including the provision of a court book by 7 May 2021.
5. The defendant's application for an order to give evidence via AVL relied on three affidavits: her affidavit dated 8 April 2021; an affidavit of Daniel Sanson, the defendant's husband, dated 7 April 2021; and an affidavit of Keiran Breckenridge, a solicitor employed by the firm acting for the defendant, dated 20 April 2021. The plaintiffs did not read any affidavit evidence. The defendant and the plaintiffs both provided written submissions in advance of the hearing.
6. The defendant is currently in the Czech Republic with her two young children, aged one and three, and her mother. On 12 July 2020, they travelled together to the Czech Republic after the defendant had been issued with a travel exemption by the Australian Border Force Commissioner so she could assess her home in the Czech Republic that had been damaged by flooding and to undertake important dental work in Prague.

Overview of the application and submissions

1. In essence, it was the defendant's position that she is unable to travel back to Australia from the Czech Republic and give evidence at the hearing commencing on 12 May for reasons relating to her health and the current COVID-19 pandemic.
2. The defendant says that she is unable to travel to Sydney unaccompanied because of a health condition, hereditary angioedema (HAE), and the age of her children. Her evidence is that her mother, who is a Czech citizen, cannot travel without a travel exemption and, due to the continuation of the COVID-19 pandemic and resulting travel restrictions, her husband did not travel to the Czech Republic in December 2020 and return to Australia with her earlier this year as originally planned. He is unable to travel now without a travel exemption.
3. The defendant is also concerned about the risks of COVID-19, particularly if she had to travel unaccompanied, and the requirement for hotel quarantine on arrival in Sydney as she experiences claustrophobia which, although undiagnosed, triggers anxiety and may lead to her suffering an HAE episode without any guaranteed access to a balcony or open window in the hotel.
4. In those circumstances, the defendant submitted that the Court should make an order that she give her evidence via AVL from the Czech Republic.
5. The plaintiffs submitted that the Court should refuse to make the order sought for three reasons.
6. First, the plaintiffs objected to the application on the basis of delay in the application being made and the late service of affidavit evidence on information and belief which has not been able to be tested.
7. Pausing here, the plaintiffs did not seek to adjourn the hearing on the basis of the late service of the evidence. Their counsel indicated that they were prepared to proceed and asked the Court to accept the prejudice in view of them being unable to test the evidence as they otherwise would have been able to by notices to produce and cross-examination of the defendant. However, as there was no objection to the plaintiffs' evidence being read, I have taken it into account on this application.
8. Second, it was submitted that the concerns raised in the defendant's evidence were not very compelling, particularly the concerns about the risk of COVID-19 as they were not unique to her. The plaintiffs contended that the impression one got was that the defendant had sought to come up with as many reasons as possible to avoid having to come to Australia. They submitted that if a parent's concern about the risk of their children contracting COVID-19 was sufficient reason to grant the application, every parent would be exempted from having to appear for trial. They also submitted that the Court should give no weight to generalised concerns about hotel quarantine when the claustrophobia and inner anxiety relied on by the defendant are not diagnosed conditions and that the only matter raised by the defendant which supports her application is her diagnosed HAE condition.
9. Third, the plaintiffs contended that to permit the defendant to provide her evidence by AVL may unfairly prejudice them because the case raises significant credit issues about the defendant that will be the subject of cross-examination and submissions at trial, including cross-examination about a large number of documents. While the plaintiffs accepted that courts have been more liberal on applications under ss 5B and 22C of the Evidence (AAVL) Act during the COVID-19 pandemic, they submitted that there was no real COVID-19 factor in this case. They also submitted that recent authorities confirm that whether leave should be granted to give evidence via AVL depends greatly on the extent to which credit will be a central issue, referring to ASIC v Wilson [2020] FCA 873.
10. In that case, which involved allegations of serious misconduct against Mr Wilson and orders for a pecuniary penalty and disqualification, Jackson J refused an application for a witness to give evidence by AVL as he was of the view that the trial may not be a fair one because the defendant would not have a proper opportunity to cross-examine the witness. His Honour recognised at [28] that giving evidence under oath or affirmation in the solemnity of a court room in the presence of a judge has potential benefits, referring to Buchannan J's comments in Campaign Master (UK) Ltd v Forty Two International Pty Limited (No 3) (2009) 181 FCR 152; [2009] FCA 1306 at [78] and also noted that time difference may go beyond mere inconvenience and provide a strong reason as to why the trial should not proceed unless a witness' evidence is given in person: at [31]. The case had not yet been listed for trial and there was, therefore, no inconvenience or wasted costs caused by refusing the application.

Reasons for granting the order to give evidence by AVL

1. The Court has broad discretionary power under the UCPR and the Evidence (AAVL) Act to make orders for the evidence of a witness to be given by AVL but will not do so unless satisfied, in the exercise of its discretion, that the video link process is appropriate: ASIC v Rich [2004] NSWSC 467 at [12] and [16]; Touma v Diocese of Saint Maron, Sydney [2020] NSWSC 1926 at [10].
2. Section 22C of the Evidence (AAVL) Act, which was inserted in 2020, recognises the challenges caused by the COVID-19 pandemic. Section 22C(4) provides that a witness may appear by AVL if the Court directs. Under s 22C(6), such an order is only to be made if it is in the interests of justice to do so having regard to: 1. the public health risk posed by the COVID-19 pandemic; 2. the efficient use of available judicial and administrative resources; 3. any relevant matter raised by a party to the proceedings; and 4. any other matter that the Court considers relevant.
3. The defendant, as the party seeking the order, bears the onus of establishing that it is appropriate that such an order be made. Factors which may be relevant to the exercise of the Court's discretion in determining whether an order should be made include the nature and significance of the evidence proposed to be give via AVL and the extent to which that evidence may be disputed.
4. The unchallenged evidence is that the defendant suffers from HAE, a condition which causes spontaneous swelling on parts of her body, resulting in severe pain and requiring the immediate application of an intravenous injection to reduce the severity and duration of the swelling. There is also evidence that the defendant is currently breastfeeding, which increases the risk of spontaneous swelling due to HAE, and that she is managing that risk with a preventative treatment that requires her to self-administer intravenous injections, a process that takes some hours as it involves a mixture and sterilisation process before the injection of four syringes using a catheter.
5. As the plaintiffs submitted, there are some unanswered questions raised by the evidence about the extent and risk of HAE attacks occurring if the defendant were to travel to Sydney. That said, the evidence before the Court about the seriousness of the defendant's health condition, which is described as potentially life threatening, the nature of the preventative treatment being undertaken by the defendant, the fact that she is breastfeeding and the ages of her children led me to conclude that it would be very difficult for the defendant and pose serious risk to her health if she were required to travel back to Australia unaccompanied by an adult, such as her mother.
6. The defendant's reluctance to travel back to Sydney unaccompanied with small children because of a fear of contracting the COVID-19 virus was, in my view, also not unreasonable, as the plaintiffs' submissions suggested. The health risks posed by the COVID-19 pandemic are well-known and a concern for the health of young children, in addition to the risks that arise from the defendant's own condition, are not to be dismissed simply because the concerns may not be unique to the defendant. In my view, particularly during the current pandemic, it would be a serious matter for the Court to impose any requirement that would mean the defendant had to travel back to Australia unaccompanied.
7. It was common ground that, due to the continuing COVID-19 pandemic, there are currently restrictions on international travel to and from Australia. According to the Australian Government's Department of Home Affairs publication titled "COVID-19 and the border - Travel restrictions and exemptions" (last updated 16 April 2021) (Publication), the travel ban means that persons who are neither Australian citizens nor residents cannot travel to Australia without a travel exemption, which in the case of the defendant's mother would need to be obtained for compassionate and compelling reasons which include, but are not limited to, needing to travel due to the death or critical illness of a close family member. The restrictions currently in place also indicate that the defendant's husband may not be able to travel from Australia to Europe unless he obtains an exemption.
8. The Publication recommends that an application for an exemption be made to the Department of Home Affairs at least two weeks, but not more than two months, before planned travel. It seemed to me that even if an application for an exemption was granted to the defendant's mother to travel with the defendant for compassionate and compelling reasons, it was highly likely, if not inevitable, that the defendant would not be in a position to give evidence in person in time for the hearing.
9. If an application for an exemption with the necessary supporting documents (including from doctors) were to be submitted by, say, next Monday, then, assuming the exemption was granted in seven days and the defendant and her family were able to reach Sydney within a further three days, she would only complete the mandatory 14-day quarantine on 20 May 2021, the last day of the hearing. Of course, this assumes that they were also able to get on flights. As the Publication notes, very limited flights are currently available to Australia and, even with exemptions, a person may not be able to travel at this time.
10. For similar reasons, it seemed unlikely that the defendant's husband would be able to obtain the necessary exemption, travel to the Czech Republic and return to Australia with the defendant and their children in time for the defendant to give evidence in person at the hearing after allowing for quarantine.
11. A significant credit challenge and the prospect of lengthy cross-examination are matters that should be afforded weight in an application such as this. Such matters may, in some circumstances, lead to a conclusion that attendance of a witness is required. However, the Court's discretion must depend on all the circumstances of the case and an assessment of unfairness necessarily involves a judgment of an evaluative character: Antov v Bokan (No 2) [2019] NSWCA 250 at [50]. So too, in my view, do the interests of justice in the context of the current pandemic.
12. I was satisfied that the use of AVL technology would not necessarily be less effective or lead to significant prejudice of the nature contended by the plaintiffs. Since the start of the COVID-19 pandemic, many hearings have proceeded with evidence and submissions given by AVL only. Although restrictions related to COVID-19 have relaxed somewhat, it currently remains necessary for parties to make an application to the Court for a hearing to be conducted in person, although the Court does seek to accommodate requests for live hearings particularly where credit issues arise.
13. From my own experience, and as recognised by judges in this and other courts, there has been little diminution in being able to assess the difficulties witnesses have in answering questions or observing a witness closely through the use of technology as, in some respects, it is easier for a judge to assess a witness who is close-up on the screen: ASIC v GetSwift Ltd [2020] FCA 504 at [25]; Capic v Ford Motor Company of Australia Ltd (Adjournment) [2020] FCA 486 at [19]; Stott v Advanta Seeds Pty Ltd [2020] NSWSC 846 at [12]; Touma v Diocese of Saint Maron, Sydney [2020] NSWSC 1926 at [14], [29].
14. The formality of proceedings may also be maintained by conducting the case in accordance with the usual Court processes and emphasising to the defendant that her evidence is given in court proceedings notwithstanding that it is being given over AVL from a remote location.
15. The defendant proposes to give evidence from her home in the Czech Republic. She deposed that she will be able to make the necessary arrangements to be alone when giving evidence, have access to a reliable internet connection, have access to a computer device which would allow her to simultaneously view the court room and any electronic document that is put to her while giving evidence, and that she would give evidence during the Court's normal hours of operation, noting the eight-hour time difference between Australia and the Czech Republic during May 2021. I also indicated that the Court would sit early or late to lessen the impact of the time difference so as to avoid it going beyond mere inconvenience. My chambers will also arrange a "test run" of the AVL link to ensure that the technology works and is reliable.
16. There was no suggestion that the hearing of these proceedings should be vacated or adjourned if I were to refuse the defendant's application and she was then unable to get back to Sydney in time. Indeed, plaintiffs' counsel candidly stated that he expected the plaintiffs would accede to an application for the defendant to give evidence by AVL, albeit reluctantly, if, having made an attempt to obtain an exemption for her mother and book flights, she was, in fact, unable to travel back in time for the hearing on 12 May 2021. In any event, it would not be consistent with case management principles and the facilitation of the just, quick and cheap resolution of the real issues in the proceedings to adjourn a hearing when a suitable alternative for giving evidence is available.
17. Weighing up the submissions, I was satisfied that the orders sought by the defendant should be made. While accepting that there was some delay to the application and that testing credit in person may be preferable to AVL, the parties wish to proceed with the hearing on 12 May 2021. The defendant's medical condition means that it is not feasible for her to travel alone with young children and the current travel restrictions make it very unlikely that she would able to arrive back in time for the hearing even if she were able to be accompanied. Overall, I was satisfied that it was in the interests of justice that the defendant be permitted to give evidence remotely from the Czech Republic.
18. For these reasons, I made the following order: 1. An order pursuant to r 31.3 of the Uniform Civil Procedure Rules 2005 (NSW) and section 22C of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) that the evidence of the Defendant/Cross-Claimant at the hearing commencing on 12 May 2021 be given via audio visual link from the Czech Republic.

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: 26 April 2021