King v Rail Corporation New South Wales
[2012] NSWSC 832
•19 July 2012
Supreme Court
New South Wales
Medium Neutral Citation: King v Rail Corporation New South Wales [2012] NSWSC 832 Hearing dates: 17/07/2012 Decision date: 19 July 2012 Jurisdiction: Common Law Before: Garling J Decision: (1) Order that the evidence of Mr Muttart be taken by audio visual link.
(2) Order that the defendant pay in any event all costs of and associated with this application and the taking of Mr Muttart's evidence by audio visual link.
(3) Grant the parties liberty to apply on 24 hours notice.
Catchwords: PRACTICE AND PROCEDURE - whether evidence of expert witness should be taken by use of audio visual facilities - relevant considerations Legislation Cited: Evidence (Audio and Audio Visual Links) Act 1998 Cases Cited: ASIC v Rich (2004) NSWSC 467 Category: Interlocutory applications Parties: Shane John King (P)
Rail Corporation New South Wales (D)Representation: Counsel:
B Toomey QC (P)
P Morris SC (D)
Solicitors:
RMB Lawyers (P)
DLA Piper (D)
File Number(s): 20009/297952
Judgment
The defendant applies for an order permitting the evidence of an expert, Mr Muttart, to be taken by audio visual link from Connecticut in the United States of America to the court room in Sydney. The plaintiff opposes the making of the order.
The hearing of the plaintiff's claim is due to commence on 30 July 2012 and to continue for some days thereafter.
The claim arises from injuries sustained by the plaintiff when, at about 3am whilst on the railway tracks in the vicinity of Mortdale Station, he was struck by a train. The plaintiff claims, and the defendant denies, that his injuries were due to the negligence of the train driver in failing to see the plaintiff and bring his train to a stop before reaching the location where the plaintiff was. As well, the plaintiff claims, and the defendant denies, that the systems under which the train driver operated, including his training, were negligent by not requiring him to have applied his brakes much earlier than he, in fact, did.
The evidence of Mr Muttart is directed by a single narrow issue, namely, what was the reasonable reaction time for a train driver to apply the emergency brakes after identifying a danger on the track ahead. Mr Muttart assessed that reaction time at 1.1.5 seconds and an expert for the plaintiff, Mr Hespe, assessed that time as being between 0.6 of a second and 0.5 of a second.
Ordinarily, in proceedings in the court, when witnesses are to be cross-examined and their evidence is challenged, they are required to give their evidence orally and in person. Where experts give evidence ordinarily the court would require that they give their evidence concurrently with other expert witnesses of similar expertise. This includes conferring in advance with other experts to see what issues they are agreed upon and what issues are not the subject of this agreement. The state of their agreement or disagreement is then recorded in a joint report.
However, notwithstanding the usual practice, the court has the power to order that the evidence of any witness can be given by means of an audio visual link. That power is to be found in s 5B of the Evidence (Audio and Audio Visual Links) Act 1988. The court's discretion to make such an order is, however, limited by s 5B(2). Relevantly, in this case, that subsection precludes the court from making an order if:
(a) the evidence can more conveniently be given in the courtroom here in Sydney when the court is sitting or,
(b) the direction permitting the use of the audio visual link would be unfair to, here, the plaintiff.
Some features of these proceedings which are relevant to the exercise of the court's discretion should be noted:
(a) The witness is an expert who is engaged by, and who accepted the retainer from, the defendant to provide a report and give evidence in circumstances where the ordinary practice of the court about requiring the attendance of witnesses in person was either made known to him, or if not, it ought to have been;
(b) the witness is not a witness of fact who by reason of matters beyond his, or the defendant's control no longer resides in New South Wales but now resides overseas;
(c) it was the defendant's free choice to engage the expert knowing that he lived and worked in the United States of America. It was not suggested that the expertise of the witness was unique or else practically unobtainable in Australia;
(d) the evidence of the witness deals with a quite discrete subject matter, when viewed from the perspective of either party;
(e) it is the assessment of a very experienced senior counsel for the plaintiff that it is likely that the cross examination of the witness will extend over some hours but that it would not occupy a full day and nor would it extend to more than a day.
(f) it was not suggested that the cross examination of the witness over the audio visual link could not in a technical sense take place. In other words, it was not submitted that it would be necessary to show the witness documentation, maps, photographs, diagrams or the like which would mean that the cross-examiner could not practically undertake his questioning unless the witness and the questioner were in each others' physical presence;
(g) the time zone difference between the United States of America and Sydney will mean that the witness will be giving evidence in the evening and the court will take his evidence in the ordinary course of its sitting hours with the result that there is no significant inability because of the different time zones;
(h) the evidence does not suggest any obvious technical difficulty with the audio visual link in terms of time delay such as would seriously adversely impact on the quality of the witness's evidence or the ability of the cross-examiner to undertake an examination;
(i) for Mr Muttart to fly to Sydney and give evidence in person will be significantly more expensive than the taking of his evidence via the audio visual link;
(j) although a matter of slight importance there will be less disruption for Mr Muttart if he does not have to travel to Australia.
Although there can be no certainty about the way a cross examination may unfold, so far as I can presently tell, there is unlikely to be a significant attack made on the credibility of Mr Muttart or on his credit. Like most experts, the worth of his evidence will be tested and assessed by reference to his level of expertise and experience and the basis for the conclusions which he has drawn.
I have had regard, and if I may say so with respect, to the lucid and helpful exposition of the applicable principles of law and discretionary considerations discussed by Austin J in ASIC v Rich 2004 NSWSC 467.
I reach the conclusion that I should approach the resolution of this application in a manner consistent with Austin J's approach allowing for the obvious factual differences in the cases.
I am satisfied that the application should be allowed and that an appropriate order should be made. Having regard to all of the matters to which I have referred and all of which I have weighed in the balance, I am principally influenced in coming to this decision by three matters:
(1) the process of using an audio visual link would not be unfair to the plaintiff.
(2) the evidence is in a limited compass, it is not the central issue in the proceedings and will not involve cross examination of undue length or be one which challenges credit.
(3) the balance of costs and convenience strongly favours the making of an order.
I note that in order for this process to work efficiently the parties will need to co-operate in ensuring that Mr Muttart and Mr Hespe confer jointly and produce a joint report setting out in the usual way the matters upon which they are agreed and the areas of their disagreement together with a short statement of each expert's contentions, where they are disagreed.
As well, I note that it is always open to the trial judge to revoke this order if circumstances change and in particular if technical difficulties become apparent during the taking of the evidence via the audio visual link which means that there is a significant unfairness being visited upon the plaintiff.
The orders of the court are:
(1) I order that the evidence of Mr Muttart be taken by audio visual link.
(2) I order that the defendant pay in any event all costs of and associated with this application and the taking of Mr Muttart's evidence by audio visual link.
(3) I grant the parties liberty to apply on twenty four hours notice.
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Decision last updated: 25 July 2012
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