NSW Rural Assistance Authority v Te Velde [2003] NSWSC 251

New South Wales Supreme Court

CITATION : NSW Rural Assistance Authority v Te Velde [2003] NSWSC 251 HEARING DATE(S) : 31 March 2003 JUDGMENT DATE : 31 March 2003 JURISDICTION: Common Law JUDGMENT OF : Newman AJ DECISION : I decline the application.

CATCHWORDS : Evidence by telephone link - whether defendant can travel LEGISLATION CITED : Evidence (Audio and Audio Visual Links) Act 1998, s5B NSW Rural Assistance Authority (Plaintiff) PARTIES : v Janice Leslie Te Velde (Defendant) FILE NUMBER(S) : SC 10891/01 COUNSEL : P - Mr S Hughes D - Mr A Jungwirth SOLICITORS : P - Messrs Golsby Whiteley Solicitors D - Jackson Smith Solicitors

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

NEWMAN AJ

MONDAY 31 MARCH 2003

10891/01 NSW RURAL ASSISTANCE AUTHORITY v JANICE LESLIE TE VELDE

JUDGMENT - Defendant's application for telephone link evidence; see p 29 of transcript

1 HIS HONOUR: The defendant has made an application pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act, 1998 ("the Act") that the defendant gives her evidence by telephone. 2 Section 5B(3) of the Act provides: "In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so." 3 In the present case, the application is opposed. This is not the first time such an application has come before the Court. Justice Bell declined such an application on 5 September 2002 and, as I understand it, a similar application made to the Court last week was also rejected. 4 The defendant's application is two-fold in nature. First, the application is made on the basis that the defendant is incapable of attending Court because of her physical condition. In support of the application, a report is before the Court, annexed to an affidavit sworn by her solicitor Mr Jackson on 27 March 2003, from Dr Vaughan Miller of Emmaville dated 6 March 2003. In the course of that report, Dr Miller comments as follows under the heading "Fitness to Travel to Sydney?": "This lady has mentioned to me at one of our consultations that she is unable to tolerate any drive more than about half an hour, and then requires prolonged rest. I am unable to confirm whether this is in fact the case, as I have limited information on her real condition."