Baxter v Willis

[2026] NSWSC 634

Supreme Court of NSW

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Interrogate

Catchwords

1. CIVIL PROCEDURE — application pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) to give evidence from overseas — whether an order would cause unfairness to the plaintiff — whether the applicant knew of the hearing date when making travel arrangements or acquired that knowledge shortly after making those arrangements — delay of around seven months in seeking order and application made shortly prior to the hearing date

Quick Take

The Court refused the defendant's application to give evidence by audio-visual link from London, finding that unfairness to the plaintiff under s 5B(2)(c) was established given the centrality of the defendant's credibility to the proceedings and the growing judicial scepticism about 'functional equivalence' between in-person and AVL evidence. The Court also found the defendant's evidence could more conveniently be given in the courtroom under s 5B(2)(b), as the inconvenience of returning from overseas was self-inflicted — the defendant either knew of the hearing date when making travel arrangements or failed to act on that knowledge for approximately seven months. The absence of a reasonable explanation for the delay in seeking the order was treated as an independent basis for refusal.