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Sanson v Sanson

Sanson v Sanson

Case [2021] NSWSC 417 21 April 2021

Appeal

Discovery & Disclosure

Admissibility of Evidence

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Sanson v Sanson [2021] NSWSC 417
Hearing dates: 21 April 2021
Date of orders: 21 April 2021
Decision date: 21 April 2021
Jurisdiction: Equity
Before: Henry J
Decision:
The Defendant/Cross-Claimant to give evidence via audio visual link from the Czech Republic at the trial commencing on 12 May 2021.

Catchwords:
CIVIL PROCEDURE – application for witness in Czech Republic to give evidence by audio visual link – where witness suffers from hereditary angioedema and has two young children – where witness’ credit will be in issue – whether in the interests of justice to make order – application granted

Legislation Cited:
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 237
Conveyancing Act 1919 (NSW), s 66G
Evidence (Audio and Audio Visual Links) Act 1998 (NSW), rr 5B, 22C
Uniform Civil Procedure Rules 2005 (NSW), r 31.3

Cases Cited:
Antov v Bokan(No 2) [2019] NSWCA 250
ASIC v GetSwift Ltd [2020] FCA 504
ASIC v Rich [2004] NSWSC 467
ASIC v Wilson [2020] FCA 873
CampaignMaster (UK) Ltd v Forty Two International Pty Limited (No 3) (2009) 181 FCR 152; [2009] FCA 1306
Capic v Ford Motor Company of Australia Ltd (Adjournment) [2020] FCA 486
Stott v Advanta Seeds Pty Ltd [2020] NSWSC 846
Touma v Diocese of Saint Maron, Sydney [2020] NSWSC 1926

Texts Cited:
Nil

Category: Procedural rulings
Parties: Bradley Patrick Sanson (First Plaintiff/Cross-Defendant)
Lorraine Maud Sanson (Second Plaintiff/Cross-Defendant)
Radka Sanson (Defendant/Cross-Claimant)
Representation:
Counsel:
D J Reynolds (Plaintiffs/Cross-Defendants)
P Silver (Defendant/Cross-Claimant)
Solicitors:
Enyo Lawyers (Plaintiffs/Cross-Defendants)
Lander & Rogers (Defendant/Cross-Claimant)

File Number(s): 2018/97853
Publication restriction: Nil

Judgment

By notice of motion filed on 9 April 2021, the defendant, Radka Sanson, sought an order pursuant to, alternatively, r 31.3 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), ss 5B or 22C of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (the Evidence (AAVL) Act) or the Court’s inherent jurisdiction that she be permitted to give evidence at the hearing commencing on 12 May 2021 by audio visual link (AVL) from the Czech Republic. The plaintiffs, Bradley Sanson and Lorraine Sanson, opposed the application.
At the conclusion of the hearing of the notice of motion, I made the order sought by the defendant and indicated that I would publish my reasons later. These are those reasons.

Background

These proceedings, which were commenced by the plaintiffs on 28 March 2018, concern a joint venture between the plaintiffs and the defendant, who are members of the same family, to purchase and develop eight industrial units on a property in Port Macquarie, New South Wales. Construction of the units was completed on or about 18 November 2017. The parties are in dispute about the terms on which the units were to be developed by the parties, the parties’ interests in the units and who is responsible for the cost of the building works, including any defects.
By further amended…

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.

Continue reading Sanson v Sanson

Details

AGLC: Sanson v Sanson [2021] NSWSC 417
Case: [2021] NSWSC 417
Decision Date: 21 April 2021

CaseChat Overview and Summary

In the case of Sanson v Sanson, the parties involved were the applicant, Sanson, and the respondent, also Sanson. The dispute arose from a family law matter, and the application was heard by the Family Court of Australia. The applicant sought an order for a witness who resides in the Czech Republic to give evidence by audio-visual link due to the witness's hereditary angioedema and the fact that the witness has two young children. The applicant argued that the witness's credit would be in issue in the proceedings and sought the order to ensure the witness could give evidence in the most effective manner possible.

The legal issues before the court included whether the application was in the interests of justice and whether the witness's health condition and family circumstances warranted an order for audio-visual link evidence. The court considered the inherent jurisdiction to ensure the proceedings are conducted fairly and efficiently, and the potential impact on the witness's health and family life. The court also examined the relevance of the witness's credit to the proceedings and the necessity of the witness giving evidence in person.

In determining the application, the court found that the interests of justice required the witness to give evidence by audio-visual link. The court recognised the witness's health condition and the impact it could have on the witness if required to travel. Additionally, the court acknowledged the witness's responsibilities towards their young children. The court concluded that these factors warranted the grant of the application to facilitate the witness's evidence in a manner that was both practical and considerate of their personal circumstances. The court granted the application, allowing the witness to give evidence by audio-visual link from the Czech Republic.

The final orders of the court were that the witness in the Czech Republic be permitted to give evidence by audio-visual link in the proceedings. This decision was made in the interest of justice, considering the witness's health condition and family responsibilities. The court's ruling aimed to ensure that the proceedings could proceed efficiently while also taking into account the personal circumstances of the witness.

Orders