DEF v Trappett - [2016] NSWSC 1387

Supreme Court

New South Wales

Medium Neutral Citation: DEF v Trappett [2016] NSWSC 1387
Hearing dates: 27 September 2016
Decision date: 27 September 2016
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Refuse the fifth defendant’s application for a direction under s 7(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) to give his evidence by audio visual link
(2) Order the fifth defendant to pay the plaintiff’s costs of the application.
Catchwords: EVIDENCE – application by fifth defendant for evidence to be given by audio visual link – application opposed by plaintiff – consideration of factors in s 7 of Evidence (Audio and Audio Visual Links) Act 1998 – likely that fifth defendant will be cross-examined on credit – application refused
Legislation Cited: Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 7
Cases Cited: ASIC v Rich [2004] NSWSC 467
Category: Procedural and other rulings
Parties: DEF (Plaintiff)
Scott Trappett (First Defendant)
Dan-Phuong Nguyen (Second Defendant)
Mark Eustance (Third Defendant)
Hon John Dunford QC (Fourth Defendant)
GHI (Fifth Defendant)
Representation:
Counsel:
W Muddle SC/M McAuley (Plaintiff)
T Boyle (Third Defendant)
D O’Brien (Fifth Defendant)
Solicitors:
McAuley Hawach Lawyers (Plaintiff)
Unsworth Legal (Third Defendant)
Mullins Lawyers (Fifth Defendant)

File Number(s): 2014/374692

Judgment: EX TEMPORE

Introduction

The fifth defendant applies for an order under s 7 of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (the Act) that his evidence be taken by audio link or audio visual link from a participating State. The fifth defendant, who is described in the proceedings by an acronym GHI, is an archbishop of an area in Australia which is not particularly far from Sydney but is not in New South Wales.
The order is sought on the basis that the fifth defendant resides within that participating State and his evidence is likely to take in the order of one hour. He would prefer to give evidence in his home city and, having regard to the length of the evidence likely to be taken from him, it is submitted that I ought not be satisfied that his evidence can be more conveniently given or made in this State, namely, New South Wales, rather than his home State and that I ought not be satisfied by the plaintiff who opposes the making of the direction, that the direction would be unfair to the party.

The fifth defendant’s submissions

Mr O'Brien, who appears on behalf of the fifth defendant, relies on an affidavit of Patrick Mullins of 26 September 2016 who deposes to the preference of the fifth defendant to give his evidence from his home State and the insufficiency of the $50 conduct money provided, or made available, by the plaintiff. It appears to me that the second matter has been accommodated by an undertaking made by the plaintiff's solicitors to meet in advance the fifth defendant's proper expenses or travel to an accommodation in Sydney for the hearing.
The fifth defendant has not provided any explanation based on…

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.

Continue reading DEF v Trappett

Details

AGLC: DEF v Trappett [2016] NSWSC 1387
Case: [2016] NSWSC 1387
Decision Date: 27 September 2016

CaseChat Overview and Summary

In the matter of DEF v Trappett, the dispute before the court involved a request by the fifth defendant to provide evidence via an audio-visual link. The plaintiff, DEF, opposed this application. The court was tasked with determining whether the application should be granted under the provisions of the Evidence (Audio and Audio Visual Links) Act 1998. Specifically, the court had to consider the factors outlined in section 7 of the Act to assess whether it was in the interests of justice for the application to be allowed.

The court evaluated the application by weighing the factors stipulated in section 7 of the Act, which include the nature and quality of the evidence, the interests of justice, and the fairness of the proceeding. The court noted that the fifth defendant was likely to be cross-examined on their credit, which indicated a significant impact on the proceeding's fairness if the defendant were to give evidence remotely. Furthermore, the court considered the potential prejudice to the plaintiff in not being able to cross-examine the defendant in person. Based on these considerations, the court concluded that granting the application would not be in the interests of justice.

Consequently, the court refused the application by the fifth defendant to give evidence via an audio-visual link. The reasoning centred on the necessity for the plaintiff to cross-examine the defendant in person to ensure a fair trial. The court emphasised the importance of the defendant being present for cross-examination, especially given the nature of the evidence and its relevance to the defendant's credibility. The court's decision was based on a careful balance of the statutory factors and the need to uphold the fairness and integrity of the judicial process.

Orders