McKirdy v EDS (Australia) Pty Limited [2006] NSWIRComm 219

McKirdy v EDS (Australia) Pty Limited [2006] NSWIRComm 219

The Court granted the Notice of Motion because the necessary audiovisual facilities were not unavailable, Mr Ivins could not more conveniently give evidence viva voce in Sydney given his business commitments and the respondent's commercial operations, cost objections did not outweigh that inconvenience, significant credit issues and cross-examination could fairly be dealt with by audiovisual link, time zone differences could be accommodated, and the proposed orders contained safeguards to ensure fairness.

Jurisdiction
Australia
Judgment Date
30 June 2006
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996; Interlocutory Notice of Motion Seeking Orders for Evidence to Be Taken by Audiovisual Link / Notice of Motion Heard Before the Trial of Proceedings Listed to Commence on 10 July 2006
Outcome
Notice of Motion granted; no order as to costs.
Legal Topics
['unfair Contract Under S 106 Industrial Relations Act 1996' 'evidence by Audio Visual Link' 'rule 31.3 of the Uniform Civil Procedure Rules' 'section 5 B of the Evidence (audio and Audio Visual Links) Act 1998' 'interlocutory Application']
['industrial Relations' 'evidence' 'civil Procedure'] ['unfair Contract Under S 106 Industrial Relations Act 1996' 'evidence by Audio Visual Link' 'rule 31.3 of the Uniform Civil Procedure Rules' 'section 5 B of the Evidence (audio and Audio Visual Links) Act 1998' 'interlocutory Application']

Case Brief

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996; Interlocutory Notice of Motion Seeking Orders for Evidence to Be Taken by Audiovisual Link / Notice of Motion Heard Before the Trial of Proceedings Listed to Commence on 10 July 2006

Legal Issues

  1. 1 ['Whether the evidence of Larry Ivins, a prospective witness resident in the United States of America, should be taken by audiovisual link between Sydney and the United States of America.' 'Whether the criteria in s 5B(2) of the Evidence (Audio and Audio Visual Links) Act 1998 precluded the Court from directing evidence by audiovisual link.' 'Whether issues of credit, cross-examination, time zones, facilities, inconvenience and costs made audiovisual evidence unfair or unsuitable.']

Ratio Decidendi

The Court granted the Notice of Motion because the necessary audiovisual facilities were not unavailable, Mr Ivins could not more conveniently give evidence viva voce in Sydney given his business commitments and the respondent's commercial operations, cost objections did not outweigh that inconvenience, significant credit issues and cross-examination could fairly be dealt with by audiovisual link, time zone differences could be accommodated, and the proposed orders contained safeguards to ensure fairness.

Court Disposition

Notice of Motion granted; no order as to costs.

Orders

  • ['The Notice of Motion filed on 8 June 2006 seeking order (1) (a) to (l) inclusive is granted.' 'The respondent/applicant on the Notice of Motion is to approach the Registry as soon as possible in order to facilitate all necessary arrangements for the taking of evidence by way of video link.' 'No order as to costs.']