Australia: When will courts permit video link evidence?

Legal Directions
Last Updated: 30 September 2011
Article by Emily Korb

Cessnock City Council v Bimbadgen Estate Pty Ltd [2011] NSWLEC 136


This NSW Land and Environment Court case serves to remind practitioners that NSW courts are generally reluctant to allow evidence by way of video link where the evidence is central to a case and particularly where cross-examination will involve examination of documents and / or a challenge to credibility.


UCPR 2005 Pt 31 R 31.3 gives courts a broad discretion to allow evidence and submissions by way of telephone, videolink and other forms of communication.

In this case the defendant, Bimbadgen Estate Pty Ltd ('Bimbadgen'), had pleaded guilty to carrying out earthworks on its property without obtaining prior development consent from the prosecutor, Cessnock City Council ('the Council') pursuant to local planning laws. The former general manager of Bimbadgen, a Mr John Quirk, was to give crucial evidence relevant to Bimbadgen's state of mind at the time and the circumstances of the commission of the offence.

The Council had requested Mr Quirk be available for a 'short' cross-examination, but because Mr Quirk had moved interstate to Echuca, VIC, Bimbadgen applied to have his evidence heard by videolink from Bendigo Local Court pursuant to Pt 31 R 31.3. In support of its application Bimbadgen submitted that travelling from Echuca to Sydney for the hearing would take Mr Quirk 8-10 hours and incur the defendant significant cost (as compared to a 2 hour trip at minimal cost if Mr Quirk gave evidence at Bendigo). Bimbadgen also argued that any inconvenience caused by a documentary cross-examination could be overcome by the Council providing to Bimbadgen or the Bendigo Court a numbered bundle of documents to which Mr Quirk could be taken during the course of his oral evidence.


Judge Pepper commenced by observing that the applicant for an order to hear evidence by videolink bears the onus of demonstrating its appropriateness. He referred to his previous judgment in Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd [2009] NSWLEC 98 and noted a court will consider the following factors in exercising its discretion:

  • The nature and importance of the evidence
  • The extent to which it is likely to be disputed
  • The costs of the hearing the evidence
  • The nature of the cross-examination, and the extent to which it will involve documents
  • Whether the evidence will be given in a different time zone
  • The convenience to the parties
  • The duration of any proposed evidence to be given.

Commenting that the Court's ability to assess evidence given by a witness could be compromised if the witness was physically absent, Pepper J nonetheless noted that it had been observed by Lloyd J in Filipowski v Hemina Holdings [2009] NSWLEC 67 that giving evidence by videolink was more acceptable in civil cases than in criminal cases.

However having regard to the above factors, Pepper J refused the application for the following reasons:

  • He considered the journey and costs of travelling to / from Victoria and New South Wales as' not excessive'
  • The Court could be flexible to accommodate Mr Quirk's itinerary
  • Mr Quirk's evidence was of central importance and cross-examination would involve challenging his credibility
  • Cross-examination would necessitate putting documents before Mr Quirk and the Council was not likely to form a final view on documents until the last minute
  • Collation errors would be difficult to rectify by videolink
  • The Court would be disadvantaged in terms of its ability to properly assess Mr Quirk's evidence if he was not physically present.


This case reinforces the developing NSW line of authority which states that a witness required for cross-examination must attend court in person absent good reason: Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd (2001) 53 NSWLR 1. This is in direct contrast to the Federal Court's approach which generally accepts videolink evidence unless good reason can be shown that a remote witness must attend in person: Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261.

Austin J provided a detailed analysis of the authorities and approaches to the topic in ASIC v Rich (2004) 49 ACSR 578.

He noted that newer technologies had put to rest most concerns regarding time lapses and delays, and he expressed considerable scepticism about the argument that courts are unable to satisfactorily assess a witnesses's demeanour or credibility via videolink.

Austin J at [43] concluded that courts should strongly encourage cost-effective and reliable technology 'even if it delivers a product not as good as [viva voce evidence]'. He also noted that there would be 'exceptional cases where, presented with a choice between taking evidence by electronic means or using the tried and true viva voce method, the court will decide there are good grounds for proceeding via viva voce evidence.'

This case demonstrates that NSW Courts are not adopting Austin J's recommendations. Rather than 'strongly encourage', NSW authorities tend to deny videolink applications where some or all of the following factors are present: the evidence is central to a case, a time difference exists or the cross-examination is expected to be lengthy or involve an assessment of documents or credibility. In this case, no time difference was involved, the cross-examination was expected to be 'short' and there was no indication that the documentation would be burdensome (ASIC v Rich where dozens of folders of evidence were tendered for cross-examination). The only salient factor which really played against the applicant was that Mr Quirk's credibility was to be challenged. In light of Austin J's entreaty to embrace new technologies, it seems NSW courts will remain resistant to videolink evidence until courts are satisfied that a witness's credibility can be satisfactorily assessed via electronic means.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.