Mathai v Kwee (No. 2)

[2005] FCA 722

FEDERAL COURT OF AUSTRALIA

Mathai v Kwee (No. 2)
[2005] FCA 722

MATHAI V KWEE (No. 2)

NSD 596 OF 2005

GRAHAM J

6 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 596 OF 2005

BETWEEN:

MATHEW KERALAVAKAYIL MATHAI
APPLICANT

AND:

LOW MOOI KWEE
FIRST RESPONDENT

LOKE CHING WONG As Trustee of THE PROPERTY OF MATHEW KERALAVAKAYIL MATHAI, a Bankrupt
SECOND RESPONDENT

JUDGE:

GRAHAM J

DATE OF ORDER:

26 MAY 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The testimony of the First Respondent may be given by audio link in accordance with s 47A of the Federal Court of Australia Act1976 (Cth).

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 596 OF 2005

BETWEEN:

MATHEW KERALAVAKAYIL MATHAI
APPLICANT

AND:

LOW MOOI KWEE
FIRST RESPONDENT

LOKE CHING WONG As Trustee of THE PROPERTY OF MATHEW KERALAVAKAYIL MATHAI, a Bankrupt
SECOND RESPONDENT

JUDGE:	GRAHAM J
DATE:	26 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT GIVEN EX TEMPORE

1. A notice of motion dated 20 May 2005 filed 23 May 2005 seeks leave for the First Respondent to give evidence in these proceedings by telephone.  Facility is made in the Federal Court of Australia Act 1976 (Cth) for evidence to be taken in certain circumstances by video link, audio link or other appropriate means. Section 47C(3) requires the court to be satisfied of certain matters before evidence can be taken by audio link, and there are other relevant sections between s 47A and 47E which deal with the matter.

2. The First Respondent, Monica Low was the creditor who presented the creditor's petition, which resulted in the sequestration order being made in respect of Mr Mathew Mathai, the Applicant.  Ms Low resides in Canada.  She suffers from a medical condition which does not render her travel by air to Australia safe, nor does it allow her to drive a motor car for an extended distance within Canada. 

3. The First Respondent resides about one hour's drive by car from Vancouver, the nearest facility at which a video link could be established.  Mr Johnson, who appears for the Applicant, originally opposed the application for evidence to be taken from Ms Low by audio link on the basis that it would inhibit his proper cross-examination of her and it was important that her demeanour could be discerned as she gave her evidence. 

4. It would seem to me that the evidence of Monica Low will only have some tangential significance in relation to the important issues in the case, and in the circumstances, I am disposed to agree that her evidence should be taken by audio link. Accordingly, I order that the testimony of the first respondent, Monica Low, may be given by audio link in accordance with s 47A(1) of the Federal Court of Australia Act 1976 (Cth). Given the time difference between Sydney and Vancouver, it is proposed that the First Respondent's evidence be taken by audio link at 10.15 am on Friday 27 May and it is presently proposed that she be interposed as a witness at that time.

5. A telephone number and a fax number have been provided at which contact may be made with Ms Low, and her evidence taken by means of the court's audio link facilities to those numbers at that time.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham .

Associate:

Dated:             2 June 2005

Counsel for the Applicant:	Mr J Johnson
Solicitor for the Applicant:	PH Legal
Counsel for the First Respondent:	Mr D Gasic
Solicitor for the First Respondent:	Robinson Legal
Counsel for the Second Respondent	Ms E Glover
Solicitor for the Second Respondent	Douros Lawyers
Date of Hearing:	26 May 2005
Date of Judgment:	26 May 2005