CIVIL PROCEDURE — Evidence by audio visual link — where plaintiff applied for order under s 5B of Evidence (Audio and Audio Visual Links) Act 1998 (NSW) for two urogynaecologists to give evidence by audio visual link (AVL) from the United States of America and Scotland — where plaintiff seeks to adduce expert evidence from both witnesses — where plaintiff seeks to also call one of the witnesses as a witness of fact — where plaintiff has adduced evidence of significant cost associated with in-person attendance for trial — whether evidence can more conveniently be given in the courtroom — whether order would be unfair to defendant — whether it is an appropriate exercise of discretion to grant the order — whether it is in the interests of justice to make the order — order made allowing plaintiff to adduce evidence by AVL from the urogynaecologist providing solely expert evidence, but not from the urogynaecologist whom the plaintiff intends to call as a witness of fact
Quick Take
1When exercising the discretion under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), the dual character of a witness — giving both contested factual evidence and expert opinion evidence — is a weighty factor against permitting evidence by AVL, because the intertwining of lay and opinion evidence increases the complexity of managing the evidence and the importance of the witness being physically present for cross-examination.
2The absence of the exclusionary matters in s 5B(2) does not create a right to give evidence by AVL; the court retains a residual discretion requiring the applicant to show good reason for the order, informed by considerations of convenience, fairness, the nature of the evidence, and the interests of the administration of justice.
3While modern technology has substantially improved the court's capacity to receive and assess remote evidence, the considerations identified in Antov v Bokan (No 2) and Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) — including the 'chemistry' of courtroom exchanges and the solemnity of the occasion — continue to warrant real weight in the evaluative assessment.
