NSW Rural Assistance Authority v Te Velde

[2003] NSWSC 251

CITATION:	NSW Rural Assistance Authority v Te Velde [2003] NSWSC 251
HEARING DATE(S):	31 March 2003
JUDGMENT DATE:	31 March 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Newman AJ
DECISION:	I decline the application.
CATCHWORDS:	Evidence by telephone link - whether defendant can travel
LEGISLATION CITED:	Evidence (Audio and Audio Visual Links) Act 1998, s5B
PARTIES :	NSW Rural Assistance Authority (Plaintiff) v Janice Leslie Te Velde (Defendant)
FILE NUMBER(S):	SC 10891/01
COUNSEL:	P - Mr S Hughes D - Mr A Jungwirth
SOLICITORS:	P - Messrs Golsby Whiteley Solicitors D - Jackson Smith Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

NEWMAN AJ

MONDAY 31 MARCH 2003

10891/01 NSW RURAL ASSISTANCE AUTHORITY v JANICE LESLIE TE VELDE

JUDGMENT - Defendant’s application for telephone link evidence; see p 29 of transcript

1 HIS HONOUR: The defendant has made an application pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act, 1998 (“the Act”) that the defendant gives her evidence by telephone.

2 Section 5B(3) of the Act provides:

“In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so.”

3 In the present case, the application is opposed. This is not the first time such an application has come before the Court. Justice Bell declined such an application on 5 September 2002 and, as I understand it, a similar application made to the Court last week was also rejected.

4 The defendant's application is two-fold in nature. First, the application is made on the basis that the defendant is incapable of attending Court because of her physical condition. In support of the application, a report is before the Court, annexed to an affidavit sworn by her solicitor Mr Jackson on 27 March 2003, from Dr Vaughan Miller of Emmaville dated 6 March 2003. In the course of that report, Dr Miller comments as follows under the heading “Fitness to Travel to Sydney?”:

“This lady has mentioned to me at one of our consultations that she is unable to tolerate any drive more than about half an hour, and then requires prolonged rest. I am unable to confirm whether this is in fact the case, as I have limited information on her real condition.”

Finally, Dr Miller observes under the heading of “Prognosis”:

“I am in no position to comment on her prognosis with the very limited information at hand, and the infrequent visits ie three in two years. If this lady indeed has post polio syndrome, this can be a very debilitating illness, which could account for some severe symptoms.”

Earlier in his report, Dr Miller, referring to a third visit on 12 April 2002, states, inter alia:

“I ordered numerous blood test, an ultrasound of her upper abdomen and pelvis, X-rays of her lumbosacral and thoracic spine, and recommended she return for results plus a referral to a gynaecologist and a neurologist. Up to date, I have received no results and the patient has not visited me since."

5 The circumstances, as outlined by Dr Miller in his report, are such that the Court could not make an order under s 5B of the Act on that evidence. It simply does not amount to evidence that the defendant is unable for physical reasons to travel to this Court.

6 The second matter upon which the defendant relies is the fact that she is poor and lives in a remote area; and the difficulty of putting on proper affidavits and travelling to Sydney are inhibited by virtue of her impecuniosity and her remote geographical location.

7 This matter has been listed on a number of occasions. It was not reached on the first occasion. Initially, the application before Bell J was brought on at the last minute. The application last week can be so categorised and the one made today even more so.

8 I should add that the matters which the defendant wishes to raise in her defence would, I am told by counsel for the plaintiff, and indeed I see no reason to doubt this, require any number of documents to be put before the defendant. To attempt so to do by telephone link is, in my view, almost impossible. It can certainly be done, as it is done regularly in this Court, by audio visual link, where in a proper situation documents can be faxed to a witness and the witness can, in fact, deal with them in much the same way as a witness would deal with documents handed to him or her in a witness box.

9 Accordingly, the ability of counsel to properly carry out a cross-examination in a case involving documents would be, in my view, severely limited and, in fact, could give rise to an injustice to the party whose counsel seeks to cross-examine.

10 In these circumstances, I am of the view that the balance of justice would require the defendant either to be present or, if it were possible, for an audiovisual link to be set up.

11 I am told by counsel for the defendant that the latter is not possible. However, I confess, for much the same reasons as Bell J gave in her judgment of 5 September 2002, I am of the view that the balance of justice here demands the presence of the defendant or, at the very least, a proper video link set up and to attempt to have her testimony taken by way of a telephone link, in the circumstances of this case, would be contrary to the interests of justice.

12 Accordingly, I decline the application.

**********

Last Modified: 04/04/2003