Lawrence v Arambasic - [2023] NSWSC 964

Supreme Court

New South Wales

Medium Neutral Citation: Lawrence v Arambasic [2023] NSWSC 964
Hearing dates: 16 August 2023
Date of orders: 16 August 2023
Decision date: 16 August 2023
Jurisdiction: Common Law
Before: Chen J
Decision:
(1) Direct that, pursuant to r 31.3 of the Uniform Civil Procedure Rules 2005 and s 5B(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), Saifur Rahman’s evidence be taken by audio visual link from Bangladesh.
(2) Order that the costs of the current application be reserved.

Catchwords:
CIVIL PROCEDURE – application for witness in Bangladesh to give evidence by audio visual link – where witness’ credit will be in issue – whether unfair to the defendant – application granted

Legislation Cited:
Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250
Filby v TEG Live Pty Ltd [2022] NSWSC 1280
North v Daniel [2021] NSWSC 828
Sanson v Sanson [2021] NSWSC 417

Category: Procedural rulings
Parties: Jasmin White (second plaintiff)
Steve Slobodan Arambasic (defendant)
Representation:
Counsel:
N Dewan (second plaintiff)
S Lipp with A Tembe (defendant)
Solicitors:

File Number(s): 2023/199584
Publication restriction: Nil

JUDGMENT EX TEMPORE

Introduction

This is an application brought by Jasmin White (‘the second plaintiff’) pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (‘the Act’), and r 31.3 of the Uniform Civil Procedure Rules 2005 (NSW) (‘the UCPR’) that a witness – Saifur Rahman – be permitted to give evidence via audio-visual link.
The defendant opposes the making of the order.

Background

By way of brief summary, by her amended statement of claim filed 5 October 2022, the second plaintiff seeks relief against the defendant including:

a declaration that a loan agreement dated 12 December 2012 and mortgage dated 20 December 2012 is binding on the defendant;

a declaration that the defendant is in default of the loan agreement and the mortgage; and

possession of a property located at XX XXXX XXXX, Lightning Ridge NSW 2834 (‘the property’).

By his defence filed 15 December 2022, the defendant denies entering into the loan agreement and the mortgage: his essential case is that the conveyance of the property was gifted to him by the second plaintiff.
The matter is listed for hearing on 4 September 2023, with an estimate of 2 days.
At the time of the events the subject of the dispute, Mr Rahman (who is the brother of the second plaintiff) lived in Canberra. The evidence of Mr Rahman – as contained in his affidavit affirmed 22 March 2023, but disputed by the defendant – goes toward the alleged entry of the defendant into the loan agreement and mortgage at Mr Rahman’s house in Canberra in December 2012. Put very simply, Mr Rahman’s evidence is that the defendant attended his home in Canberra, at that time, and executed the loan agreement and mortgage. That version of events is said…

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 Lawrence v Arambasic

Details

AGLC: Lawrence v Arambasic [2023] NSWSC 964
Case: [2023] NSWSC 964
Decision Date: 16 August 2023

CaseChat Overview and Summary

In the Federal Court of Australia, Lawrence, the plaintiff, sought an order for a witness residing in Bangladesh to give evidence via audio-visual link in a proceeding concerning alleged breaches of contract and fiduciary duty. The defendant, Arambasic, opposed the application, arguing that it would be unfair to have a witness from overseas testify in this manner, especially when the witness's credibility would be a pivotal point in the case. The court was tasked with determining whether the application to have the overseas witness give evidence via audio-visual link would be appropriate, given the potential impact on the fairness of the trial.

The central legal issue was whether the use of audio-visual link evidence from an overseas witness, where the witness's credibility would be in question, would be fair to the defendant. The court considered the principles of fairness and the importance of the witness's testimony to the outcome of the case. It was necessary to balance the convenience of the witness with the rights of the defendant to confront the witness and assess their credibility in person. The court also considered the established practice and legal precedents regarding the use of such technology in Australian courts.

The court found that the use of audio-visual link evidence from an overseas witness was permissible and would not be unfair to the defendant in this instance. The court acknowledged the inconvenience and potential limitations of this mode of testimony but determined that the necessity and relevance of the witness's evidence outweighed these concerns. The court emphasised that the defendant would still have the opportunity to cross-examine the witness and that the technology available would facilitate a fair and effective examination. Consequently, the application was granted, allowing the witness to give evidence via audio-visual link.

No further orders were made by the court beyond granting the application for the witness to give evidence via audio-visual link. The case proceeded with the witness's evidence being presented in this manner, subject to the terms and conditions set by the court to ensure fairness and efficacy in the trial process.

Orders