AMP Ltd v Chubb Insurance Australia Ltd (No 2) (evidence by AVL)

The parties involved in this case were AMP Ltd, the plaintiff, and Chubb Insurance Australia Ltd, the defendant. The dispute revolved around the use of audio visual link (AVL) evidence during the trial, as a key witness was unavailable due to a long-planned overseas holiday. The case was heard in the Supreme Court of New South Wales. The plaintiffs sought an order for the evidence to be given by AVL from the United Kingdom, while the defendants argued against the use of AVL evidence, claiming it was unfair in the circumstances.

The legal issues before the court involved the interpretation and application of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), specifically section 5B. The court had to determine whether it was appropriate to allow evidence to be given by AVL when the witness was unavailable due to a long-planned overseas holiday, despite the trial date being known for 12 months and no subpoena being issued. Additionally, the court considered whether it was good practice to serve a subpoena to give evidence in such circumstances.

The court found that the principles set out in the case law applied to the use of AVL evidence. The court held that the use of AVL evidence was not unfair in the circumstances, as the witness's unavailability was due to a long-planned overseas holiday, and the plaintiffs had not acted unreasonably in not subpoenaing the witness earlier. The court also found that it was not necessarily good practice to serve a subpoena to give evidence in such circumstances, as it may not always be feasible or practical to do so. Ultimately, the court allowed the use of AVL evidence in this case, as it was in the interests of justice to do so.

The court made an order that the evidence of the key witness be given by AVL from the United Kingdom, and that the defendants bear the costs associated with setting up and maintaining the AVL link. The court also made an order that the defendants pay a portion of the plaintiffs' costs for the proceedings.