Manny v David Lardner Lawyers - [2021] ACTSC 232

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…

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: [2021] ACTSC 232
Decision Date

CaseChat Overview and Summary

The matter of Manny v David Lardner Lawyers involved an application by the defendants for the evidence of Mr Lardner to be received via audio-visual link (AVL) due to the COVID-19 pandemic. The application was grounded on the fact that Mr Lardner, who resides on the New South Wales South Coast, would need to undergo hotel quarantine for two weeks upon arriving in the ACT, and another two weeks upon returning to New South Wales. Given Mr Lardner's age and medical conditions, this was seen as an impractical requirement. Although feasible, having Mr Lardner give evidence in person was not deemed necessary as the focus was on what best serves the interests of justice.

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