Czaplinksi v Collette
[2023] ACTSC 155
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Czaplinksi v Collette |
Citation: | [2023] ACTSC 155 |
Hearing Date: | 23 June 2023 |
DecisionDate: | 23 June 2023 |
Before: | Curtin AJ |
Decision: | (1) Pursuant to r 6703 of the Court Procedures Rules 2006, the evidence of Dr Ian Kelman, Dr John McMahon, Gillian Steward, John Raue, Associate Professor Abdul Khalid and Dr Kalesh Seevnarain be received by the Court by audiovisual link, or if that is not available, by telephone, at the hearing due to commence on or about 28 August 2023. (2) For the avoidance of doubt, the application for the evidence of Dr Frommer and Ms Burns to be received by the Court by audiovisual link is refused and their evidence must be given in person. (3) The costs of today's application should be costs in the cause. (4) The Order for costs made by the Senior Deputy Registrar on 16 June 2023, namely that the plaintiff was to pay the defendants’ costs of and incidental to that day's listing and that those costs were to be agreed or assessed at the conclusion of the proceedings, is set aside. (5) The costs of the listing hearing before the Senior Deputy Registrar on 16 June 2023 should be the parties’ costs in the proceedings. |
Catchwords: | PRACTICE AND PROCEDURE — expert evidence — application by the first and second defendants for witnesses to give expert evidence by audiovisual link or telephone — application granted in part — interests of justice require evidence of some witnesses to be given in person |
Legislation Cited: | Court Procedure Rules 2006 (ACT) r 6703 |
Cases Cited: | Lardner v Australian Capital Territory [2018] ACTSC 77 Naimo v NRMA Insurance [2020] ACTSC 4 |
Parties: | Alicia Maree McLennan Czaplinksi ( Plaintiff) Niamh Collette ( First Defendant) AAI Limited Trading as GIO Insurance ( Second Defendant) |
Representation: | Counsel D Campbell SC, L Edwards ( Plaintiff) W Sharwood ( First and Second Defendants) |
| Solicitors Maliganis Edwards Johnson ( Plaintiff) Moray & Agnew ( First and Second Defendants) | |
File Number: | SC 439 of 2021 |
CURTIN AJ:
EX TEMPORE (REVISED)
Introduction
This is an application by the first and second defendants for eight expert witnesses to give evidence via audiovisual link or telephone in a personal injury case in which liability is admitted. The matter is listed for a hearing of eight days.
Background
On the plaintiff's best case for damages, the total sum which may be awarded, I am told, is something in the realm of $2 million to $3 million. There is a significant issue on damages in the specialty of gastroenterology and also a substantial issue as to the extent of occupational therapy.
This application is brought in a busy Friday list and so these reasons are shorter than they would otherwise be.
I have been much assisted by Mr Sharwood's submissions describing the statutory regime for the taking of evidence remotely and for his references to Lardner v Australian Capital Territory [2018] ACTSC 77, particularly at [19]—[24], and Mossop J's decision in Naimo v NRMA Insurance [2020] ACTSC 4 at [11]—[13].
Decision
I am satisfied, on the basis of Mr Sharwood's outline of submissions, that I have the power and on the evidence I have the inclination to make orders that the persons identified in paragraphs 1(a), (d), (e), (f) and (g) of the application filed on 26 May 2023 are permitted to be given by audiovisual link or by telephone if by some reason that video link cannot be established.
The situation is different in relation to the persons identified in paragraphs (1)(b) and (c), being Dr Donald Frommer, a gastroenterologist and hepatologist, and Ms Lynn Burns, an occupational therapist.
Suffice to say, the following considerations, as identified by Mossop J in Naimo at [13], are relevant:
Some of the circumstances which may indicate that it is not appropriate to permit an expert witness to give telephone evidence include:
(a) where the cross-examination is likely to be lengthy;
(b) where the volume or nature of documents to be shown to the witness would be impeded by having evidence given in that manner;
(c) where evidence of expert witnesses is to be given concurrently;
(d) where there is anticipated to be a particular issue based on the demeanour of the witness which is contended to be of likely significance to the assessment of the witness' evidence;
(e) where there is to be an attack on the reliability or weight to be given to the evidence of the witness based on a lack of independence or partisanship; and
(f) where the giving of evidence is likely to be made more difficult by technical difficulties associated with the giving of telephone evidence.
(See also Lardner at [22].)
In relation to each of those matters, senior counsel briefed for the plaintiff for the hearing, tells me, and I accept, that the cross-examination of the two identified persons is likely to be lengthy, there is likely to be a more than insignificant number of documents, diagrams, photographs and like material to be shown to the identified witnesses in cross-examination, and it is anticipated that they will be asked to identify, particularly in photographs and diagrams, particular features, and may be asked to use a pen or similar instrument to mark a particular document in order to make sense of their evidence.
In my experience, such matters are almost impossible to be conducted efficiently or without generating great confusion when witnesses are giving evidence remotely. The same might be said with the forwarding of documents to witnesses ahead of trial, although to a lesser extent.
It is anticipated that the two witnesses identified will give evidence concurrently with the other party's witnesses qualified in the same specialty.
It is unlikely at this stage that there will be any particular issue arising which will fall to be determined, at least partly, on the demeanour of the witnesses and it is unlikely there will be an attack on the reliability or weight to be given to the evidence of those witnesses based on lack of independence or partisanship. Of course, that may change in cross‑examination but it seems unlikely at this point in time.
The last matter mentioned by Mossop J is whether the giving of evidence is likely to be made more difficult by technical difficulties. That presently seems unlikely. The provisions in relation to giving evidence remotely are an exception to the general rule that witnesses give evidence in court. That general rule, although a product of history, is in fact based on the inescapable fact that evidence given in person is better expressed and better challenged and better assessed than when it is given remotely.
Given the significance of the issues addressed by Dr Frommer and the issues addressed by Ms Burns, it does not seem appropriate to me, in the interests of justice and for the interest of deciding critical issues in a significant case, that their evidence be given remotely and thus deprive the Court of the best opportunity to assess their evidence, and the fairest opportunity to the plaintiff to challenge their evidence, especially given the need for those witnesses to be directed to written materials and to write on those materials to best convey their evidence.
The Court appreciates the significant impost on those two witnesses, and particularly Dr Frommer, who has a clinical practice and whose appearance in person will require cancellation for a period of time of that practice. The Court also appreciates the significant cost. Balanced against that is the critical nature of the evidence in a significant case and the Court's duty to deliver a just judgment in favour of one party or the other, either on the whole case or particularly identified issues.
In the circumstances it seems to me the interests of justice favour that the evidence of Dr Frommer and Ms Burns be given in person.
I am satisfied that on 16 June 2023 there were reasons applicable to both parties for the application not to proceed on that day but to proceed today, including, most relevantly, the fact that the defendants served an affidavit on the plaintiff the day before the listing before the Senior Deputy Registrar and today also sought to rely on an affidavit sworn on 22 June 2023.
In those circumstances, the costs of the listing hearing before the Senior Deputy Registrar on 16 June 2023 should be the parties' costs in the proceedings.
Orders
I make the following orders:
(1)Pursuant to r 6703 of the Court Procedures Rules 2006, the evidence of Dr Ian Kelman, Dr John McMahon, Gillian Steward, John Raue, Associate Professor Abdul Khalid and Dr Kalesh Seevnarain be received by the Court by audiovisual link, or if that is not available, by telephone, at the hearing due to commence on or about 28 August 2023.
(2)For the avoidance of doubt, the application for the evidence of Dr Frommer and Ms Burns to be received by the Court by audiovisual link is refused and their evidence must be given in person.
(3)The costs of today's application should be costs in the cause.
(4)The Order for costs made by the Senior Deputy Registrar on 16 June 2023, namely that the plaintiff was to pay the defendants’ costs of and incidental to that day's listing and that those costs were to be agreed or assessed at the conclusion of the proceedings, is set aside.
(5)The costs of the listing hearing before the Senior Deputy Registrar on 16 June 2023 should be the parties’ costs in the proceedings.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin. Associate: Date: |
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