Lardner v Australian Capital Territory - [2018] ACTSC 77

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Lardner v Australian Capital Territory
Citation:	[2018] ACTSC 77
Hearing Date:	20 March 2018
DecisionDate:	20 March 2018
ReasonsDate:	23 March 2018
Before:	McWilliam AsJ
Decision:	1. Pursuant to r 6703 of the Court Procedures Rules 2006 (ACT) the evidence of Dr Paul Belt and Dr John Cummine be given by audiovisual link.
Catchwords:	PRACTICE AND PROCEDURE – applications for two witnesses to give evidence via audiovisual link from a location outside the Australian Capital Territory – pre-conditions in s 20 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – applications allowed
Legislation Cited:	Evidence (Audio and Audio Visual Links) Act 1998 (NSW) ss 5B, 13, pts 2, 3 Evidence Act 1977 (Qld) ss 39E, 39PB, pt 3A Court Procedures Act 2004 (ACT) s 5A Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 20, 32 Court Procedures Rules 2006 (ACT) r 6703
Cases Cited:	ASIC v Rich [2004] NSWSC 467; 49 ACSR 578 Brodie v Streeter [2003] ACTSC 88; 180 FLR 176 R v BNS [2016] ACTSC 51
Parties:	Mr Barry Ronald Lardner (Plaintiff) Australian Capital Territory (First Defendant) Dr Graeme Harrison (Second Defendant)
Representation:	Counsel Mr A Bartley SC with Mr R Ingram (Plaintiff) Mr H Chiu (First Defendant) Mr G Diehm QC (Second Defendant)
Solicitors Commins Hendriks Solicitors (Plaintiff) ACT Government Solicitor (First Defendant) Moray & Agnew (Second Defendant)
File Number:	SC 378 of 2015

Introduction

On 20 March 2018, the Court heard two similar interlocutory applications by each defendant in these proceedings, filed in Court on 19 March 2018, on the second day of a final hearing that had been listed for five days.

The applications seek orders pursuant to r 6703 of the Court Procedures Rules 2006 (ACT) (the Rules) that various expert medical witnesses give evidence by telephone.

The plaintiff consented to two of the first defendant’s expert medical witnesses being cross-examined by telephone.

However, the plaintiff opposed cross-examining Dr John Cummine, orthopaedic surgeon, and Dr Paul Belt, plastic surgeon, by either telephone or audiovisual link. Dr Cummine resides in Sydney, New South Wales, and Dr Belt resides in Brisbane, Queensland.

Following the hearing of the applications, I directed that the evidence of those two doctors be given by audiovisual link and these are my reasons for the order.

Evidence

In support of the applications, the defendants relied upon the affidavits of Ms Jessica May Steele and Ms Lauren Gail Smith, the instructing solicitors for the first and second defendant respectively, with both affidavits either sworn or affirmed on 19 March 2018. The second defendant also relied on some email correspondence with the solicitors for the plaintiff.

The plaintiff read the affidavit of Ms Cassandra Leigh Hanlon sworn 20 March 2018, instructing solicitor for the plaintiff, and a schedule of damages handed up by the first defendant (who has admitted liability in part).

The evidence will be discussed further below.

Court’s power to make the order

The Court has power to…

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: [2018] ACTSC 77
Decision Date: 20 March 2018

CaseChat Overview and Summary

The case of Lardner v Australian Capital Territory involved a dispute where the applicant sought for two witnesses, Dr Paul Belt and Dr John Cummine, to provide evidence via an audiovisual link from locations outside the Australian Capital Territory. This request was made in the context of proceedings in the Federal Circuit Court of Australia. The application for the witnesses to testify remotely was grounded on the provisions of section 20 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), which allows for such arrangements under specific conditions.

The legal issues before the court revolved around whether the preconditions stipulated in section 20 of the Act were satisfied. The Act requires that the evidence of a witness be given by audiovisual link if the court is satisfied that the witness cannot reasonably attend the proceeding due to exceptional circumstances and that the use of an audiovisual link will not substantially prejudice the administration of justice. The court had to determine if the exceptional circumstances and the non-prejudicial nature of the audiovisual link were adequately demonstrated by the applicant.

In assessing the application, the court considered the exceptional circumstances presented by the applicant and evaluated whether the use of an audiovisual link would compromise the fairness and effectiveness of the proceedings. The court found that the exceptional circumstances did exist, as the witnesses were unable to attend due to reasons that were beyond their control, and that using an audiovisual link would not substantially prejudice the administration of justice. Consequently, the court granted the application, allowing the witnesses to give evidence via an audiovisual link.

Pursuant to rule 6703 of the Court Procedures Rules 2006 (ACT), the court ordered that the evidence of Dr Paul Belt and Dr John Cummine be given by audiovisual link. This decision was pivotal in allowing the trial to proceed without the physical presence of these critical witnesses, thereby balancing the need for their testimony with the practical constraints imposed by their inability to attend in person.

Orders

Orders of the court

1. Pursuant to r 6703 of the Court Procedures Rules 2006 (ACT) the evidence of Dr Paul Belt and Dr John Cummine be given by audiovisual link.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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