Walker Charlotte Street v Rio Tinto Services [2014] NSWSC 535

Walker Charlotte Street v Rio Tinto Services [2014] NSWSC 535

Mr Usher was a significant and material witness whose credibility would be in issue and who was not willing to come to New South Wales to give evidence during the hearing. Audio-visual link evidence was inappropriate because credibility assessment and document-heavy cross-examination would be impeded and the London-Sydney time difference would cause serious inconvenience. Subject to practical arrangements under Practice Note SC Gen 9, justice would be better served by taking Mr Usher's evidence on examination in London, with the trial judge as examiner, because that preserved the defendants' ability to call material evidence while reducing the disadvantages of AVL.

Jurisdiction
Australia
Judgment Date
02 May 2014
Procedural Posture
Procedural Ruling in Equity Division Commercial List Concerning Evidence by Audio Visual Link or on Examination Outside Australia / Notice of Motion Heard Before Trial Fixed for Four Weeks Commencing 2 June 2014
Outcome
Application to take Mr Usher's evidence by audio-visual link refused; order made in principle and provisionally for his evidence to be taken on examination in London by the trial judge as examiner; costs reserved.
Legal Topics
['evidence by Audio Visual Link' 'evidence on Examination Outside Australia' 'evidence on Commission' 'interests of Justice' 'witness Availability' 'credibility Assessment']
['evidence' 'civil Procedure'] ['evidence by Audio Visual Link' 'evidence on Examination Outside Australia' 'evidence on Commission' 'interests of Justice' 'witness Availability' 'credibility Assessment']

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Procedural Posture

Procedural Ruling in Equity Division Commercial List Concerning Evidence by Audio Visual Link or on Examination Outside Australia / Notice of Motion Heard Before Trial Fixed for Four Weeks Commencing 2 June 2014

Legal Issues

  1. 1 ["Whether Mr Usher's evidence should be taken by audio-visual link." 'Whether it was in the interests of justice under s 6 of the Evidence on Commission Act 1995 (NSW) to order that Mr Usher be examined on oath outside Australia.' 'Whether practical considerations, including Practice Note SC Gen 9, timing, cost and arrangements for examination in London, affected the making of an examination order.']

Ratio Decidendi

Mr Usher was a significant and material witness whose credibility would be in issue and who was not willing to come to New South Wales to give evidence during the hearing. Audio-visual link evidence was inappropriate because credibility assessment and document-heavy cross-examination would be impeded and the London-Sydney time difference would cause serious inconvenience. Subject to practical arrangements under Practice Note SC Gen 9, justice would be better served by taking Mr Usher's evidence on examination in London, with the trial judge as examiner, because that preserved the defendants' ability to call material evidence while reducing the disadvantages of AVL.

Court Disposition

Application to take Mr Usher's evidence by audio-visual link refused; order made in principle and provisionally for his evidence to be taken on examination in London by the trial judge as examiner; costs reserved.

Orders

  • ['Decline at present to make orders 1 and 2 sought on the notice of motion filed on 28 April 2014.' "Make order 3 for Mr Usher's evidence to be taken on examination, provisionally and subject to practical arrangements." 'Grant leave to any party to discharge, revoke or vary the order on notice.' 'Note that the Court...