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 most convenient.

Legislation

7. Consideration of this application involves reference to s 20 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMPA) and r 6800 of the Court Procedures Rules 2006 (ACT) (CPRs). It also involves reference to general principles concerning the interests of justice.

8. Section 20 of the Evidence Act provides:

20            Territory courts may take evidence and submissions from participating States

(1)	A territory court may, on the application of a party to a proceeding before the court or on its own initiative, direct that evidence be taken or a submission made by audiovisual link or audio link, from a participating State.
(2)	The court may make the direction only if satisfied that—
(a) the necessary facilities are available or can reasonably be made

available; and

(b) the evidence or submission can more conveniently be given or made

from the participating State; and

(c) the making of the direction is not unfair to a party opposing the making of the direction.

9.       Rule 6800 of the CPRs provides:

6800 Application for direction under Evidence (Miscellaneous Provisions) Act, s 20

(1)	An application for a direction under the Evidence (Miscellaneous Provisions) Act 1991, section 20 (Territory courts may take evidence and submissions from participating States) may be made in a civil or criminal proceeding.
Note Pt 6.2 (Applications in proceedings) applies to an application or a direction under this rule.
(2)	The application may be made orally.

(3) The application must be supported by an affidavit stating—

(a)	why the evidence should be taken or submissions made by audiovisual link or audio link; and
(b)	the nature of any evidence to be taken; and
(c)	the number of witnesses to be examined; and
(d)	whether issues of character are likely to be raised; and
(e)	the expected duration of the evidence or submissions; and
(f)	a description of the facilitates that are available, or that can reasonably be made available, for the evidence to be taken or submissions to be made; and
(g)	that the requirements of the Evidence (Miscellaneous Provisions) Act 1991, section 20 (2) can be met.

(4)

In deciding whether to make the direction, the court may have regard to the
following matters:

(a)	the matters included in the applicant’s affidavit;
(b)	the cost and convenience to the witnesses and parties.

(5)

Subrule (4) does not limit the matters to which the court may have regard.

Submissions

10.     In opposing the application, the respondents raised three main matters.

11.     First, the respondents contended that it would be unfair, and therefore contrary to the interests of justice, if Mr Lardner was permitted to give his evidence via AVL because he will be cross-examined extensively, if he is cross-examined by AVL, it will be more difficult for the Court to make reliable findings about his credit.

12.     The Court was reminded that Mr Manny had been cross-examined in person.

13.     Credit is in issue in this case, although it is not necessarily just a word-on-word case. There are many contemporaneous documents which will be relevant to an assessment of what actually occurred at important times.

14.    Second, the respondents emphasised that the cross-examiner could be

disadvantaged is obliged to cross examine via AVL because the “chemistry” between

the cross examiner and the witness might be lost. Counsel relied on the observations of Perram J in Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 (Capic). At [19] his Honour stated:

My impression of [modern AVL] platforms has been that I am staring at the witness from

about one metre away and my perception of the witness’ facial expressions is much

greater than it is in Court. What is different—and significant—is that the video-link

technology tends to reduce the chemistry which may develop between counsel and the witness. This is allied with the general sense that there has been a reduction in formality in

the proceedings. This is certainly so and is undesirable.

15.     Third, the respondents argued that there was no guarantee the technological support

efforts made by the applicants would ensure that Mr Lardner’s AVL connection was

strong and reliable throughout a lengthy cross-examination.

16.     The respondent raised two ancillary matters.

17.     First, Mr Manny himself may seek to undertake the cross-examination of Mr Lardner. Mr Manny suffers from a hearing impediment. It is also said he suffers from a visual impediment. Counsel submitted that, given those conditions, the use of AVL may

impede Mr Manny’s ability to ask questions of Mr Lardner.

18.     Second, the respondents intend to cross-examine Mr Lardner about a number of documents. Counsel submitted that it may be difficult to display documents over AVL.

Consideration

19.    I was referred to various decisions of the Federal Court of Australia, including Campaign Master (UK) Ltd V Forty Two International Pty Ltd (No 3) [2009] FCA 1306; 181 FCR 152, Hanson-Young v Leyonhhjelm (No 3) [2019] FCA 645, Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504, and Capic. In the fast-moving IT era, some of these decisions are a little antiquated, while others are more recent. I was also referred to the decision of Antov v Bokan (No 2) [2019] NSWCA 250; 101 NSWLR 142.

20.     This Court is very familiar with receiving contentious evidence from remote witnesses. In some very serious matters, including sexual assault matters, complainants generally give their evidence remotely.

21.    When this procedure was introduced, courts were wary about the capacity of factfinders to assess the credibility of critical witnesses who gave their evidence in this way. However, over the past couple of decades, the experience of courts has changed that prejudice. Courts now realise that evidence given in this way is just as capable of being assessed as is evidence given in person. Provided there is a stable and clear AVL connection, a witness is at least as accessible to the factfinder as they would be in person.

22.     For the purposes of this application, I arranged for Mr Lardner to connect to the Court via AVL, so that I could assess the quality of the connection. It was a very clear. Mr Lardner connected to the Court using the Cisco Webex platform. His facial features were extremely clear. The audio connection was also extremely clear. The clarity was at least as good as if he was present physically in the courtroom. I perceive no disadvantage whatsoever to an assessment of his credit if he gives evidence via AVL.

23.     As to the question of 'chemistry' between cross-examining counsel and witness, the same issue arises in relation to the cross-examination of complainants in serious matters where the complainants give evidence via AVL. Again, historically, counsel have been sceptical about their capacity to effectively cross-examine a witness who is located remotely. Experience has proven that scepticism to be ill-founded. Provided that the AVL connection is as good as it is today, I am satisfied that there will be no

disadvantage to the ‘chemistry’ if Mr Lardner gives his evidence remotely.

24.     Excellent facilities have been established for Mr Lardner to give his evidence by AVL. Particularly when evidence will occupy a significant period, there is always the fear that an AVL connection will break down. In this case, that fear has been alleviated. Mr Lardner has been provided with a 4G mobile internet dongle. Backup dongles from other service provides have been provided. An IT support person will be available to Mr Lardner at the beginning of his evidence and can be called back should the connection proved problematic. The Court sat for approximately an hour

during the hearing of the application, during which time Mr Lardner’s connection was faultless. I am reassured—as much as it is possible to be reassured—that the AVL

connection will be maintained at the high level that was apparent during the hearing
of the application.

25.     I am aware that Mr Manny suffers from a hearing impediment because that matter was raised when he was himself a witness. As far as the visual impediment is concerned, I am not sure of the nature of that impediment and there was no evidence about it.

26.    I cannot see how AVL evidence – as opposed to in person evidence – could

negatively impact on a person with a hearing or visual impediment. The in-court facilities are such that audio amplification can be achieved regardless of the way in which the evidence is given. At as to any visual impairment, if the evidence is given via AVL, the screens on the bar table can be used to provide Mr Manny with a clear view of the witness, should his view of the main screens be inadequate.

27.     The cross examination of Mr Lardner about documents should not prove a difficulty. All the documents should be in his possession. If there are documents that are not in

his possession, those documents can be shown to him via a “shared screen” on the

Webex platform.

28. Having regard to the matters referred to in r 6800 of the CPRs and s 20 of the EMPA, I am satisfied that it is appropriate to make the orders sought. Further, it is positively in the interests of justice that I make the orders.

Orders

29.     The orders of the Court are:

(1)	The evidence of Mr Lardner be taken by AVL.
(2)	Mr Lardner will be deemed to have complied with the subpoena to give evidence if he attends the Court via AVL.
(3)	Costs of the application are reserved.

I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell

Associate:

Date: