| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2017 01203
| KENNETH MARTIN LAURENT | Plaintiff |
| v | |
| UNILEVER AUSTRALIA LTD (ACN 004 050 828) | Defendant |
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JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 August 2017, 4 September 2017 |
DATE OF JUDGMENT: | 5 September 2017 |
CASE MAY BE CITED AS: | Laurent v Unilever Australia Ltd |
MEDIUM NEUTRAL CITATION: | [2017] VSC 527 |
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PRACTICE AND PROCEDURE – Application for evidence to be taken overseas – Elderly Plaintiff diagnosed with mesothelioma allegedly caused by inhalation of asbestos in the course of employment in Victoria – Plaintiff ordinarily resident overseas – Whether video link of evidence on commission is appropriate – Interests of justice in giving evidence on one occasion only - Section 7 of the Foreign Evidence Act 1994 (Cth) – Sections 7 and 9 of the Civil Procedure Act 2010 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms B Knoester | Adviceline |
| For the Defendant | Dr S Keeling | Moray & Agnew |
| For the Third Party | Mr S Smith | Mills Oakley |
HIS HONOUR:
Introduction
Kenneth Laurent is 78 years of age and is dying of mesothelioma. In a proceeding in this Court he sues the defendant, Unilever Australia Ltd (Unilever), on the basis that his exposure to asbestos in 1961 at its premises in Port Melbourne is a cause of his contraction of the disease.
A dispute has arisen about how evidence should be taken in the proceeding: Mr Laurent lives on the Isle of Jersey (in the English Channel, about 25 kilometres or so from the French coast) and most of the witnesses to be called in his case reside in Jersey and in the United Kingdom. Accordingly, Mr Laurent has applied for the taking of his evidence and that of his witnesses in Jersey, under the provisions of the Foreign Evidence Act 1994 (Cth) (FEA).
Unilever opposes the making of such an order – or at least the making of it at the present time. It says that it would be preferable, at least initially, to take Mr Laurent’s evidence on commission by video link and then – and only then – if the case has not settled, make orders under the FEA. Unilever submits that such a course is consistent with the provisions of the two relevant pieces of legislation, the FEA and the Civil Procedure Act 2010 (Vic) (CPA).
Whilst I accept that questions of cost and efficiency may be relevant on such an application, the real question is whether, in the context of the history of the case and Mr Laurent’s circumstances, the proposed ‘halfway house’ contended for by Unilever is truly in the interests of justice. For the reasons I will now set out, it is not.
Mr Laurent’s evidence should be taken only once and in Jersey, as should the evidence of his witnesses residing in Jersey and the United Kingdom.
The relevant pieces of legislation
Part 2 of the FEA…
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- Case
- [2017] VSC 527
- Decision Date
CaseChat Overview and Summary
The court examined the provisions of Section 7 of the Foreign Evidence Act 1994 (Cth) and Sections 7 and 9 of the Civil Procedure Act 2010 (Vic). It considered the appropriate balance between the interests of justice and the practicalities of obtaining evidence from a witness who was elderly and in poor health. The court also had to weigh the potential for a fair trial against the inconvenience and expense of requiring the witness to travel. The court found that the use of a video link was appropriate in this case, given the plaintiff's health and the potential for a fair trial.
The court concluded that the use of a video link for the evidence was appropriate in this case. The court found that the interests of justice would be adequately served by this method, given the plaintiff's age and health. The court also considered the provisions of the Foreign Evidence Act 1994 (Cth) and the Civil Procedure Act 2010 (Vic) and determined that the use of a video link was a reasonable and fair way to obtain the evidence. The court emphasised the importance of balancing the interests of justice with the practicalities of obtaining evidence from a witness who was not physically present in the jurisdiction. The court's decision was based on a careful consideration of the relevant statutory provisions and the specific circumstances of the case.
The court granted the plaintiff's application for evidence to be taken overseas via a video link. The court found that the use of a video link was appropriate in this case, given the plaintiff's health and the potential for a fair trial. The court also considered the provisions of the relevant statutes and determined that the use of a video link was a reasonable and fair way to obtain the evidence. The court's decision was based on a careful consideration of the relevant statutory provisions and the specific circumstances of the case. The court's decision was that the application for evidence to be taken overseas via a video link was granted.
Orders
Orders of the court
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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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