Filby v Teg Live Pty Ltd

In the matter of Filby v Teg Live Pty Ltd, the defendant sought to have a key witness, who was scheduled to be in Australia six months prior to the hearing, testify via audio-visual link (AVL) from overseas. The plaintiff opposed the application, arguing that the defendant had deliberately arranged for the witness to be overseas, either knowing it would conflict with the requirement to give evidence or ignoring this fact. The application for AVL was made on the first day of the hearing, leaving little time for the Court to consider alternative arrangements. The Federal Circuit and Family Court of Australia was tasked with deciding whether the application should be granted under these circumstances.

The legal issues before the Court included whether the defendant had acted in bad faith by scheduling the witness's overseas trip, knowing or ignoring that it would conflict with the need for the witness to give evidence. The Court also had to weigh the competing factors of the witness's availability and the potential impact on the fairness of the proceedings if the witness were to give evidence via AVL. Furthermore, the Court needed to consider the implications of the defendant's delay in making the application and the implications of this delay on the exercise of the Court's discretion.

The Court found that the defendant's actions were either knowingly or negligently reckless in scheduling the witness's overseas trip, knowing or ignoring that it would conflict with the need for the witness to give evidence. The Court considered this a significant factor against the grant of the AVL application. Additionally, the Court emphasised the importance of the witness being present in court, particularly given the critical nature of the evidence the witness was expected to provide. The Court also noted the delay in making the application, which it considered further undermined the defendant's case for AVL. Ultimately, the Court concluded that the competing factors did not sufficiently outweigh the importance of the witness being present in court and denied the application.

The Court ordered that the witness must give evidence in person and set a date for the witness to return to Australia to testify. The Court also ordered the defendant to bear the costs associated with the witness's return to Australia and any additional costs incurred due to the delay in making the AVL application.