Structum Pty Ltd v Mihalopoulos [2019] NSWDC 24

Structum Pty Ltd v Mihalopoulos [2019] NSWDC 24

The notice of motion was dismissed because, although personal attendance by the first defendant was preferred and his evidence was central, there was no evidence of when or whether he might obtain bail or be brought to court, no custody courtroom was available under s 77, the AVL suite at Surry Hills was available for the hearing, the affidavit evidence meant the first defendant had notice of the factual case, and arrangements could be made for documents and for confidential instructions. In those circumstances, the interests of justice and the efficient conduct of litigation favoured proceeding by audio-visual link, with safeguards and liberty to apply if disadvantage arose.

Jurisdiction
Australia
Judgment Date
21 February 2019
Procedural Posture
Civil / Interlocutory Notice of Motion by the Defendants to Vacate the Hearing and Stand the Matter Over for Directions
Outcome
Notice of motion dismissed; the first defendant was ordered to participate in the hearing, including giving evidence, by audio-visual link, subject to safeguards and liberty to apply.
Legal Topics
['application to Vacate Hearing' 'adjournment' 'incarcerated Party' 'audio Visual Link Evidence' 'case Management']
['civil Procedure' 'evidence'] ['application to Vacate Hearing' 'adjournment' 'incarcerated Party' 'audio Visual Link Evidence' 'case Management']

Case Brief

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Procedural Posture

Civil / Interlocutory Notice of Motion by the Defendants to Vacate the Hearing and Stand the Matter Over for Directions

Legal Issues

  1. 1 ['Whether the hearing listed to commence on 21 February 2019 should be vacated because the first defendant, a party and central witness, was in custody after being refused bail.' 'Whether the first defendant could fairly participate in the hearing and give evidence by audio-visual link.' 'Whether the interests of justice and the efficient conduct of District Court litigation favoured proceeding with the hearing by audio-visual link rather than adjourning it.']

Ratio Decidendi

The notice of motion was dismissed because, although personal attendance by the first defendant was preferred and his evidence was central, there was no evidence of when or whether he might obtain bail or be brought to court, no custody courtroom was available under s 77, the AVL suite at Surry Hills was available for the hearing, the affidavit evidence meant the first defendant had notice of the factual case, and arrangements could be made for documents and for confidential instructions. In those circumstances, the interests of justice and the efficient conduct of litigation favoured proceeding by audio-visual link, with safeguards and liberty to apply if disadvantage arose.

Court Disposition

Notice of motion dismissed; the first defendant was ordered to participate in the hearing, including giving evidence, by audio-visual link, subject to safeguards and liberty to apply.

Orders

  • ['Notice of motion dismissed.' 'The first defendant participate in the hearing, including in the giving of evidence by audio-visual link.' 'The Court will be vacated during the periods required by counsel for the defendants to confer and/or take instructions from the first defendant.' 'The first defendant is to be...