SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Manny v David Lardner Lawyers |
| Citation: | [2021] ACTSC 232 |
| Hearing Date: | 26 August 2021 |
| Decision Date: | 26 August 2021 |
| Before: | Murrell CJ |
| Decision: | The evidence of Mr Lardner be taken by AVL |
Catchwords: | CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application by defendants that witness give evidence by AVL – where trial is being conducted during the COVID-19 pandemic – where giving evidence in person would require quarantine – consideration of relevant |
| principles | |
| Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 20 Court Procedures Rules 2006 (ACT) r 6800 |
| Cases Cited: | Antov v Bokan (No 2) [2019] NSWCA 250; 101 NSWLR 142 |
| Australian Securities and Investments Commission v GetSwift | |
| Limited [2020] FCA 504 | |
| Campaign Master (UK) Ltd V Forty Two International Pty Ltd | |
| (No 3) [2009] FCA 1306; 181 FCR 152 | |
| Capic v Ford Motor Company of Australia Limited | |
| (Adjournment) [2020] FCA 486 Hanson-Young v Leyonhhjelm (No 3) [2019] FCA 645 | |
| Parties: | Earnest David Lardner and Kenneth William Power trading in partnership as David Lardner Lawyers (First Applicant) |
| Kenneth William Power (Second Applicant) David Lardner Lawyers Pty Ltd (Third Applicant) | |
| Jeff Manny (First Respondent) Jeff Manny Constructions Pty Ltd (Second Respondent) JK3l Pty Ltd (Third Respondent) | |
| Lonagann Pty Ltd (in liquidation) (Fourth Respondent) Landagency Pty Ltd (Fifth Respondent) | |
| Representation: | Counsel |
| J Larkings (Applicants) | |
| E Grotte (Respondents) | |
| Solicitors | |
| Boettcher Law (Applicants) | |
| Luke Clarke Solicitor (Respondents) | |
| File Number(s): | SC 527 of 2016 |
| MURRELL CJ: | |
| Introduction |
1. The defendants applied for the evidence of Mr Lardner's to be received via audio- visual link (AVL).
2. The application is made on the basis that the ACT is in “lockdown” because of the
COVID-19 pandemic. It is likely that some restrictions will be continuing when the hearing resumes in September and Mr Lardner is due to give evidence. New South
Wales regional areas are also in “lockdown”. Restrictions may well still apply in those
areas at the time of the hearing.
3. Under the current regime, if Mr Lardner travelled from his home on the New South Wales South Coast to the ACT, he would be required to undertake hotel quarantine for a fortnight in isolation from other persons before the commencement of the resumed hearing. Upon his return to New South Wales, he would be required to home isolate for a fortnight.
4. I do not regard the latter requirement to be a matter of any great moment. However, the former is a relevant consideration. Mr Lardner is 74 years of age and he suffers from some medical problems.
5. It is feasible for Mr Lardner to give evidence in person. He could quarantine for two weeks and come to the Court in person. The Court would ensure that social
distancing was practiced and enforce mask wearing. Mr Lardner’s personal
circumstances do not prohibit this occurring in any practical sense.
6. But that is not the question. The question is what the interests of justice require, having regard to what is…
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- Case
- [2021] ACTSC 232
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the interests of justice warranted permitting Mr Lardner to give his evidence via AVL, considering the convenience and the implications for the assessment of his credibility. The court also had to evaluate the respondents' arguments that cross-examination via AVL would be more difficult, the potential loss of 'chemistry' between counsel and the witness, and concerns about the reliability of the technological connection. Additionally, the court needed to address the respondents' concerns about their ability to effectively cross-examine Mr Lardner, especially regarding document display and the potential impediments for Mr Manny, who has a hearing and visual impairment.
In its reasoning, the court referenced relevant legislation and case law, including the Evidence (Miscellaneous Provisions) Act 1991 (ACT) and the Court Procedures Rules 2006 (ACT). The court noted that courts have become more accustomed to assessing credibility from remote witnesses over time. It conducted a test connection with Mr Lardner via AVL, finding the connection to be clear and stable. The court was satisfied that the technology was sufficient to ensure effective cross-examination and that the in-court facilities could accommodate any hearing or visual impairments. Ultimately, the court concluded that it was in the interests of justice to permit Mr Lardner to give his evidence via AVL.
The court ordered that Mr Lardner's evidence be taken by AVL, deeming him to have complied with the subpoena if he attends via AVL. The costs of the application were reserved for later determination.
Orders
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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