Rothe v Scott (No. 3) [2016] NSWDC 151

Rothe v Scott (No. 3) [2016] NSWDC 151

The court granted leave for the plaintiff's witnesses to give evidence by telephone due to their inability to attend for legitimate personal and health reasons. However, it refused the plaintiff’s application to give evidence by telephone as there was no adequate medical evidence provided to support incapacity. The adjournment application was refused because procedural history did not justify further delay and the plaintiff's inability to give evidence does not make the proceedings futile.

Parties
Plaintiff: Kenneth Rothe; Defendant: David Scott
Jurisdiction
Australia
Judgment Date
26 July 2016
Procedural Posture
Defamation / Procedural Ruling on Applications Regarding Evidence and Adjournment Prior to Hearing
Outcome
Plaintiff granted leave for two witnesses to give evidence by telephone; plaintiff refused leave to give evidence by telephone; defendant's adjournment application refused; costs reserved; future applications for remote evidence by plaintiff must be supported by medical affidavit evidence.
Legal Topics
Defamation, Use of Technology in Court, Evidence by Telephone/avl, Adjournment of Trial, Procedural Fairness
Tort Civil Procedure Defamation Use of Technology in Court Evidence by Telephone/avl Adjournment of Trial Procedural Fairness

Case Brief

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Parties

Kenneth Rothe

Plaintiff

David Scott

Defendant

Procedural Posture

Defamation / Procedural Ruling on Applications Regarding Evidence and Adjournment Prior to Hearing

Legal Issues

  1. 1 Whether the plaintiff and his two witnesses should be permitted to give evidence by telephone or AVL instead of appearing in person
  2. 2 Whether the plaintiff should be refused leave to give evidence by telephone due to lack of medical evidence
  3. 3 Whether the hearing should be adjourned if the plaintiff cannot give evidence due to ill health

Ratio Decidendi

The court granted leave for the plaintiff's witnesses to give evidence by telephone due to their inability to attend for legitimate personal and health reasons. However, it refused the plaintiff’s application to give evidence by telephone as there was no adequate medical evidence provided to support incapacity. The adjournment application was refused because procedural history did not justify further delay and the plaintiff's inability to give evidence does not make the proceedings futile.

Court Disposition

Plaintiff granted leave for two witnesses to give evidence by telephone; plaintiff refused leave to give evidence by telephone; defendant's adjournment application refused; costs reserved; future applications for remote evidence by plaintiff must be supported by medical affidavit evidence.

Orders

  • Grant leave to the plaintiff to call evidence from Mr Neville Ledger and Ms Lisa Patterson by telephone.
  • Refuse the plaintiff's application to give evidence by telephone.