Addleman v Lambie Trustee Limited

[2017] NZHC 1719

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1359 [2017] NZHC 1719

BETWEEN

PRUDENCE ANNE ADDLEMAN

Plaintiff

AND

LAMBIE TRUSTEE LIMITED Defendant

Hearing:	On the papers
Appearances:	R A Rose for Plaintiff D Chambers QC for Defendant
Judgment:	24 July 2017

JUDGMENT OF LANG J

[on application for evidence to be given by AVL link]

This judgment was delivered by me on 24 July 2017 at 4.45 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

ADDLEMAN v LAMBIE TRUSTEE LTD [2017] NZHC 1719 [24 July 2017]

[1]        The Registry has now referred to me the memoranda filed by both counsel in relation to the proposed AVL link to Madeira.  The defendant opposes the plaintiff being cross-examined by AVL link from Madeira.  The issue needs to be determined as a matter of urgency given the proximity of the trial.

[2]        The application must be determined having regard to the criteria in ss 5 and

7 of the Courts (Remote Participation) Act 2010.  These relevantly provide:

5         General criteria for allowing use of audio-visual links

A judicial officer or Registrar must consider the following criteria when he or she is making a determination under this Act whether or not to allow the use of AVL for the appearance of any participant in a proceeding:

(a)      the nature of the proceeding:

(b)     the availability and quality of the technology that is to be used:

(c)      the potential impact of the use of the technology on the effective maintenance of the rights of other parties to the proceeding, including—

(i)      the  ability  to  assess  the  credibility  of  witnesses  and  the reliability of evidence presented to the court; and

(ii)     the level of contact with other participants: (d)       any other relevant matters.

…

7         Use of audio-visual links in civil proceedings

(1)       AVL may be used in a civil proceeding for the appearance of a participant in the proceeding if a judicial officer or Registrar determines to allow its use for the appearance of that participant.

(2)       A judicial  officer  or  Registrar  may  make  a  determination  under subsection (1)—

(a)     on his or her own motion; or

(b)     on the application of any participant in the proceeding. (3)   A determination under subsection (1) must—

(a)     be made in accordance with the criteria in section 5; and

(b)     take into account whether or not the parties consent to the useof AVL for the appearance of the participant.

[3]        As Ms Rose for the plaintiff points out, there is now no presumption in favour of a witness giving evidence in the courtroom rather than remotely.1    This reflects the fact that recent advances in technology mean that high quality AVL links are now available.  In addition, when assessing the credibility and/or reliability of the evidence given by a witness the courts are now less willing to place weight on factors such as the witness’s demeanour.

[4]        The present proceeding will require the Court to determine whether the plaintiff is entitled to documents and information in relation to the Lambie Trust. That is largely a legal issue, and it is difficult to see how issues of credibility or reliability on the part of the plaintiff are likely to arise.  To the extent that they may, this Court now regularly decides such issues when witnesses give evidence by way of AVL link from overseas or elsewhere in New Zealand.   I do not consider the nature of the present proceeding is such that it will require the plaintiff to be present in the courtroom when giving evidence.

[5]        Furthermore, the Registry assures me it will be possible to establish an AVL link of suitable quality to Madeira where the plaintiff is currently staying.  She may be required to travel within Madeira to reach the AVL location, but the distance to be travelled within Madeira will obviously be considerably less than would be the case if she is required to travel to New Zealand.

[6]      I see no impediment to the plaintiff giving evidence by AVL link notwithstanding that a significant bundle of documents will need to be sent to her. Counsel for the plaintiff will be responsible for ensuring that an appropriately paginated bundle of documents will be in the possession of the witness when she gives evidence.

[7]        For those reasons I am not prepared to direct Mrs Addleman to fly to New Zealand to be cross-examined.  Instead, she may give evidence by AVL link from Madeira.   Counsel for the plaintiff should therefore continue to liaise with the Registrar (Sharon Chivers) to ensure that the link is established at an appropriate stage during the trial.

Lang J

1      R v O [2012] NZCA 475 at [37].