Evidence by Phone and AVL: talk to the interests of justice

There is an increasing trend towards witnesses giving their evidence by phone or audio-visual link these days.


McCallum J’s recent Supreme Court decision of Tan v Silverdale Sand and Soil Pty Ltd [2014] NSWSC 391 reviews the relevant legislation and provides a useful guide to the kinds of factors that will be taken into account by the decision-maker in such applications.


Tan was an appeal on a question of law as of right under s39 of the Local Court Act (NSW) 2007. It was a simple property damage claim arising out of an accident between a truck and a sedan. One of the principal grounds of appeal was that the magistrate erred by giving a direction that an eyewitness to the accident be permitted to give his evidence by phone.


At first instance the parties drew the magistrate’s attention to UCPR 31.3, a regulation which is pretty bare on detail, simply providing a court with the discretion to order that evidence may be received by phone, AVL or otherwise.


However, the magistrate was not taken to section 5B of the Evidence (Audio and Audio Visual Links) Act 1998, which deals with the question more expansively. There are 2 salient aspects.


Firstly, under ss5B(2)(c) a court cannot make an order if it is satisfied that the direction would be unfair to ‘the party’. McCallum J took the view that contrary to what Austin J said in ASIC v Rich, ‘the party’ refers to the applicant party (ie. the party calling the witness). On the face of the section this would seem correct. However it is somewhat counter-intuitive because it raises the obvious question as to why a party would make the application in the first place if it could cause unfairness to them.


Secondly, ss5B(3) says that a court must not make the direction unless it is in the interests of the administration of justice to do so. As such, perhaps the easier way of dealing with the ambiguity in ss(2)(c) is simply to roll any questions of fairness affecting all parties, into the ‘interests of justice’ question under ss(3). Her Honour did in fact acknowledge this degree of overlap at [33].


On the general fairness issue, the appellant plaintiff argued at first instance that he would be prejudiced by the court not having had the opportunity to observe the demeanour of the witness and not being able to show the witness photos of the accident scene in cross-examination.


McCallum J placed these arguments alongside the fact that this was the third time the parties had assembled for the hearing and that the defendant’s lawyers had only become aware a few days prior that the witness could not be in court.


A medical certificate was also produced at the first instance hearing, which appeared to assist the defendant. I’ll take this opportunity to point out the obvious – medical certificates should always set out precisely what it is that prevents a person from coming to court. Otherwise, a court is entitled to reject them.


In the wash up, her Honour found that whilst not having explicitly considered section 5B, the magistrate did still turn his mind to the right kinds of questions to enable him to adequately consider whether having the evidence given by phone was in the interests of the administration of justice. And she agreed with the magistrate’s tacit consideration that in the overall circumstances, it was.


In so finding, her Honour also made mention of the fact that allowing the witness to give evidence by phone facilitated “just, quick and cheap resolution” of the case (s56 of the Civil Procedure Act).


A final matter to keep in mind if you are in the Local Court, is that Civil Practice Note 1 at para. 18.1 requires a party to seek a direction that a witness be permitted to give their evidence by phone or AVL at the time the case is listed for hearing. Her Honour said that whilst this is an important procedural requirement, the defendant’s failure to comply with it should not have been fatal, given that “absolute insistence upon literal compliance with it will not always serve the interests of the administration of justice” (at [38]). Once again, we are left with questions over the force and effect of Local Court practice notes…an argument for another day!


PS– a bit of shameless self-promotion…the next instalment of the NSWLR’s will include my first reported decision (as junior), Miles v Motor Accident Authority of NSW [2013] NSWSC 927. Fortunately, it was also a win.

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