Cessnock City Council v Bimbadgen Estate Pty Ltd  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  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  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  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  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.
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