When will an application for an expert to give evidence remotely be disallowed?

Czaplinksi v Collette [2023] ACTSC 155

In this case, the first and second defendants made an application to allow its eight expert witnesses to give evidence via audio visual link (AVL). The court granted the application for six of the eight experts to give evidence remotely. Given the significance of the issues addressed by these two experts, the court said it was not appropriate, in the interests of justice and for the purpose of deciding critical issues in a significant case, that their evidence be given remotely.

Background

The plaintiff sought damages stemming from a personal injury.  The first defendant and second defendants admitted liability.

There was a significant issue on damages in the specialty of gastroenterology and a substantial issue as to the extent of occupational therapy required by the plaintiff. On the plaintiff’s best case, total damages were estimated in the vicinity of $2 million to $3 million.

Expert evidence

In their submissions, the plaintiff’s counsel set out the statutory regime for the taking of evidence remotely, and made references to Lardner v Australian Capital Territory [2018] ACTSC 77 and the decision of Mossop J in Naimo v NRMA Insurance [2020] ACTSC 4 (Naimo).

Based on these submissions, Curtin AJ was satisfied, and made orders, that six of the eight experts be allowed to give their evidence by AVL.

In respect of experts Dr F, a gastroenterologist and hepatologist, and Ms B, an occupational therapist, the court ruled otherwise. In this regard, the court was guided by the decision in Naimo (at [13]), which states:

Some of the circumstances which may indicate that it is not appropriate to permit an expert witness to give telephone evidence include:

1. where the cross-examination is likely to be lengthy;
2. where the volume or nature of documents to be shown to the witness would be impeded by having evidence given in that manner;
3. where evidence of expert witnesses is to be given concurrently;
4. where there is anticipated to be a particular issue based on the demeanour of the witness which is contended to be of likely significance to the assessment of the witness’ evidence;
5. where there is to be an attack on the reliability or weight to be given to the evidence of the witness based on a lack of independence or partisanship; and
6. where the giving of evidence is likely to be made more difficult by technical difficulties associated with the giving of telephone evidence.

The cross-examination of Dr F and Ms B was likely to be lengthy because of the significant number of documents, diagrams, photographs, and other material to be presented to them during cross-examination. It was anticipated that they would be asked to identify, particularly in photographs and diagrams, particular features, and asked to use a pen or similar instrument to mark a particular document to make sense of their evidence. [8]

In Curtin AJ’s experience, such matters are almost impossible to be conducted efficiently or without generating great confusion if the witness is to give their evidence remotely. [9]

Given the significance of the issues addressed by Dr F and Ms B, and in the interests of justice and the determination of critical issues in a significant case, the court ruled it inappropriate for these two experts to give their evidence via AVL. Giving their evidence remotely may deprive the court of the best opportunity to assess their evidence, and the fairest opportunity for the plaintiff to challenge their evidence. [13]

Balanced against this was the critical nature of the evidence in a significant case and the court’s duty to deliver a just judgment, either on the whole case or particularly identified issues. [14]

Curtin AJ ruled that the interests of justice favoured that the evidence of Dr F and Ms B be given in person.

Key takeaways

• COVID changed the way evidence can be given in court and the resources of courts, lawyers and witnesses to appear and give evidence remotely has significantly improved.
• It should never be presumed by an expert witness or their instructing solicitor that evidence can be given remotely. It is for the court, and not the parties or the witness, to decide whether evidence will be allowed to be given by AVL.
• Expert evidence which goes to significant issues to be determined in the case, or which requires the expert to engage with materials to make sense of their evidence will likely be required to be given by the expert in person rather than via AVL.

Read the full decision here.