DEF v Trappett [2016] NSWSC 1387

DEF v Trappett [2016] NSWSC 1387

The Court refused the fifth defendant's application because his evidence was likely to be important, his credit was likely to be in issue due to an alleged disparity between his pleaded case and documents about the effect of the assessment report, and documents were likely to be put to him. In those circumstances his evidence could more conveniently be given in New South Wales and allowing evidence by audio visual link would be unfair to the plaintiff, engaging s 7(2)(b) and s 7(2)(c) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW).

Jurisdiction
Australia
Judgment Date
27 September 2016
Procedural Posture
Application for Evidence to Be Given by Audio Link or Audio Visual Link Under S 7 of the Evidence (audio and Audio Visual Links) Act 1998 (nsw) / Procedural Ruling on the Fifth Defendant's Application
Outcome
The fifth defendant's application was refused and he was ordered to pay the plaintiff's costs of the application.
Legal Topics
['audio Visual Link Evidence' 'cross Examination on Credit' 'unfavourable Witness' 'convenience and Fairness Under S 7 of the Evidence (audio and Audio Visual Links) Act 1998 (nsw)' 'costs of Interlocutory Application']
['evidence' 'civil Procedure'] ['audio Visual Link Evidence' 'cross Examination on Credit' 'unfavourable Witness' 'convenience and Fairness Under S 7 of the Evidence (audio and Audio Visual Links) Act 1998 (nsw)' 'costs of Interlocutory Application']

Case Brief

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Procedural Posture

Application for Evidence to Be Given by Audio Link or Audio Visual Link Under S 7 of the Evidence (audio and Audio Visual Links) Act 1998 (nsw) / Procedural Ruling on the Fifth Defendant's Application

Legal Issues

  1. 1 ["Whether the fifth defendant's evidence could more conveniently be given in New South Wales rather than by audio link or audio visual link from a participating State under s 7(2)(b) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW)." 'Whether a direction allowing the fifth defendant to give evidence by audio visual link would be unfair to the plaintiff under s 7(2)(c) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW).' 'Whether the likely cross-examination of the fifth defendant on credit and by reference to documents made in-person evidence preferable.']

Ratio Decidendi

The Court refused the fifth defendant's application because his evidence was likely to be important, his credit was likely to be in issue due to an alleged disparity between his pleaded case and documents about the effect of the assessment report, and documents were likely to be put to him. In those circumstances his evidence could more conveniently be given in New South Wales and allowing evidence by audio visual link would be unfair to the plaintiff, engaging s 7(2)(b) and s 7(2)(c) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW).

Court Disposition

The fifth defendant's application was refused and he was ordered to pay the plaintiff's costs of the application.

Orders

  • ["Refuse the fifth defendant's application for a direction under s 7(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) to give his evidence by audio visual link." "Order the fifth defendant to pay the plaintiff's costs of the application."]