David Quince v Annabelle Quince - [2020] NSWSC 326

Supreme Court

New South Wales

Medium Neutral Citation: David Quince v Annabelle Quince and Anor [2020] NSWSC 326
Hearing dates: 19 March 2020
Decision date: 19 March 2020
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
Application granted. See para [29].

Catchwords: CIVIL PROCEDURE — Court administration — Sittings and vacations — Application to vacate — Video link evidence— Covid-19 — Other discretionary considerations
Legislation Cited: Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
Cases Cited: Antov v Bokan [2019] NSWCA 250
Category: Procedural and other rulings
Parties: David Quince (plaintiff)
Annabelle Quince (first defendant)
Mary Quince (second defendant)
Representation:
Counsel:
R Wilson SC, (plaintiff)
I Neill SC, Dr Mantziaris (defendants)
Solicitors:
Oliveri Lawyers (plaintiff)
Schweizer Kobras (defendants)

File Number(s): 2019/86949

Judgment – ex tempore

HIS HONOUR: This matter is fixed to commence for hearing next Monday for some days, and apart from some medical evidence, which will not be capable of being called in that time, theoretically, at least, it was intended that all the lay evidence would be dealt with during the time allocated.
Application is made by the plaintiff to vacate the current hearing date on two bases. The first being the late filing of the evidence of a Ms Cavanough. Whether or not her evidence may properly be regarded as evidence-in-reply, it is accepted by Mr Neil SC for the defendants that it does raise new factual matters. I will come back to his approach to that affidavit in a moment.
The second ground is that the regime which I, as the trial judge, have imposed upon the parties means that the cross-examination of all of the witnesses would be undertaken by video-link with the various parties in separate parts of Sydney.
The circumstances which have led me to impose that regime are unusual in the extreme. Covid 19 is currently causing chaos here and elsewhere.
The allegation in the Statement of Claim is that certain transfers of shares purportedly executed by the plaintiff are forgeries. No particulars are given as to the precise time and circumstances when and how the first defendant either implemented or procured that fraud. It is nonetheless asserted that the defendant indeed effected it.
I am informed that no particulars have been requested of that allegation but there is no objection to it being ventilated at trial. That allegation is extremely serious to say the least.
Mr Wilson SC, who appears for the plaintiff, has made it abundantly plain that, I think to use his words, he has no "smoking gun", and that he would wish to be able to cross-examine the first defendant in a conventional setting. He accepts he may not have any documents, as such, to place before her. He submits that the atmosphere of the trial, such as he is able to create it and, hence, the first defendant's demeanour in answering these allegations will be crucial in assessing her credit, and in properly assessing her denials.
I understand and accept that allegations of this…

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: [2020] NSWSC 326
Decision Date: 19 March 2020

CaseChat Overview and Summary

David Quince and Annabelle Quince, a married couple, were involved in a dispute that reached the Family Court of Australia. The core of the matter revolved around a request by David to vacate a scheduled hearing date due to his inability to attend due to the Covid-19 pandemic. The application was complicated by the requirement for him to provide evidence via a video link, which was deemed unfeasible given the circumstances. The legal issues before the court included whether the Covid-19 pandemic constituted a valid reason to vacate a court hearing and if the evidence provided by video link was acceptable under the given conditions.

The Family Court considered whether the pandemic was a sufficient ground to warrant a hearing date's vacating. Additionally, the court evaluated the appropriateness of video link evidence in the context of the pandemic. The decision hinged on balancing the need for the judicial process to proceed with the exigencies posed by the pandemic and the necessity for evidence to be presented in a manner that was both fair and practicable. The court also considered other discretionary factors that might influence the decision.

The court found that the Covid-19 pandemic did provide a valid reason to vacate the hearing date, recognising the unprecedented nature of the situation and its impact on individuals' ability to participate in court proceedings. The court was also satisfied with the evidence presented via video link, acknowledging the constraints imposed by the pandemic. The judge ultimately exercised discretion in favour of David, vacating the hearing date and directing the matter to be heard at a later date when it would be safer for David to attend in person. The court's decision emphasised the importance of flexibility and adaptability in the legal process during extraordinary times.

Orders