Supreme Court New South Wales Medium Neutral Citation: HCEC v Browne [2024] NSWSC 465 Hearing dates: 18 April 2024 Date of orders: 18 April 2024 Decision date: 18 April 2024 Jurisdiction: Common Law Before: Hamill J Decision: (1) Pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), the evidence of Anneliese Wild and Amelia Formby may be taken by audio visual link. (2) Solicitor for the plaintiff to give an undertaking that by the time of the hearing the necessary arrangements and testing will have been completed to ensure the witnesses are able to give their evidence by audio visual link. Catchwords: CIVIL LAW – audio visual link – undertaking by plaintiff's lawyers – no question of principle Legislation Cited: Evidence (Audio and Audio Visual Links) Act 1998 (NSW) s 5B Category: Procedural rulings Parties: Hunter Community Environment Centre Incorporated (Plaintiff) Chris Browne (Defendant) Representation: Solicitors: O'Brien Criminal & Civil Lawyers (Plaintiff / Applicant) Makinson d'Apice (Defendant / Respondent) File Number(s): 2023/00222110 EX TEMPORE JUDGMENT 1. There is an application for orders under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) on behalf of the plaintiff, Hunter Community Environment Centre Incorporated (HCEC), for two witnesses, a Ms Wild and a Ms Formby, to give evidence by that means, that is to say audio visual link. One is from outside of Australia and one is from outside of New South Wales, namely in Western Australia. 2. The defendants do not oppose the making of that order. 3. Section 5B requires me to form satisfaction of certain things, all of which I am comfortably satisfied of, but for the requirement in s 5B(2) which is that I must not make a direction if the necessary facilities are unavailable or cannot reasonably be made available. It would be surprising if they were not. They are certainly available at this end; the question is whether they can be made available in Western Australia and Switzerland. 4. But to save costs and facilitate the matter going forward, I propose to make the order, given that it is consented to and there is no suggestion that the defendants would suffer any prejudice as a result of the evidence being given by this means. But I will, in making the order, accept from Mr Latham, who appears for the plaintiff, an undertaking that by the time of the hearing he will have made the necessary arrangements and done the necessary testing to ensure that the giving of the evidence in that way proceeds smoothly. 5. I make the following orders: 1. Pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), the evidence of Anneliese Wild and Amelia Formby may be taken by audio visual link. 2. Solicitor for the plaintiff to give an undertaking that by the time of the hearing the necessary arrangements and testing will have been completed to ensure the witnesses are able to give their evidence by audio visual link. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 April 2024