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]—

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] ACTSC 155
Decision Date

CaseChat Overview and Summary

In the matter of Czaplinksi v Collette, the first and second defendants sought permission for eight expert witnesses to give evidence via audiovisual link or telephone in a personal injury case where liability was admitted. The case was set for an eight-day hearing. The plaintiff's potential damages were estimated to be between $2 million and $3 million. The court needed to decide whether the evidence of certain experts could be provided remotely or if it should be given in person.

The court considered the statutory regime for remote evidence and relevant case law, particularly Lardner v Australian Capital Territory [2018] ACTSC 77 and Naimo v NRMA Insurance [2020] ACTSC 4. The court found that the evidence of six experts could be given remotely due to the nature of the evidence and the likelihood of technical difficulties being minimal. However, the evidence of Dr Frommer, a gastroenterologist and hepatologist, and Ms Burns, an occupational therapist, had to be given in person. The court found that their cross-examination would be lengthy, a significant number of documents would need to be shown, and the evidence would be difficult to convey and assess remotely.

The court acknowledged the significant imposition on the experts, particularly Dr Frommer, who would have to cancel clinical appointments to appear in person. However, the court found that the critical nature of the evidence and its duty to deliver a just judgment outweighed these considerations. The court set aside the costs order made by the Senior Deputy Registrar on 16 June 2023 and ordered that the costs of the listing hearing before the Senior Deputy Registrar on 16 June 2023 should be the parties' costs in the proceedings.

The court made 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.

Orders