Rothe v Scott (No. 3) [2016] NSWDC 151

District Court New South Wales

Medium Neutral Citation: Rothe v Scott (No. 3) [2016] NSWDC 151 Hearing dates: 26 July 2016 Date of orders: 26 July 2016 Decision date: 26 July 2016 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Grant leave to the plaintiff to call evidence from Mr Neville Ledger and Ms Lisa Patterson by telephone. (2) Refuse the plaintiff's application to give evidence by telephone. (3) The defendant's application for the adjournment of the hearing set to commence on Monday 1 August 2016 is refused, having regard to the history of the case to date and the issues raised in the pleadings. (4) Reserve the issue of costs. (5) Any fresh application by the plaintiff to give evidence by telephone must be supported by medical evidence on affidavit with the giver of that medical advice available for cross-examination. Catchwords: TORT – defamation – plaintiff's application for himself and two witnesses to give evidence by AVL or telephone – circumstances in which witnesses and parties can give evidence other than from the witness box – plaintiff so ill he may not be able to give evidence at all - defendant's application for adjournment on the basis that the case could not proceed if the plaintiff could not give evidence – whether plaintiff's claim a futility if he did not give evidence – application dismissed. Legislation Cited: Evidence Act 1995 (NSW), s 63 Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B Uniform Civil Procedure Rules 2005 (NSW), r 31.3 Cases Cited: AG of Zambia v Meer [2006] 1 C.L.C. 436 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 ASIC v Rich [2004] NSWSC 467 Bank of Credit and Commerce International SA v Rahim [2005] EWHC 3550 (Ch) Bristow v Adams [2012] NSWCA 166 Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd [2009] NSWLEC 98 Director of Public Prosecutions v Alexander (1993) 33 NSWLR 482 Ell v Milne (No 8) [2014] NSWSC 175 Fraser v Health Care Corporation Pty Ltd [2016] NSWDC 39 K v K [2005] EWHC 1070 (Fam) Markisic v United States of America [2006] NSWSC 839 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 570 McGlinn v Waltham Contractors Limited [2007] EWHC 149 (TCC) Packer v Australian Broadcasting Corporation (1993) 116 FLR 306 Polanski v Condé Nast Publications Ltd [2005] 1 All ER 945 Rothe v Scott [2015] NSWDC 105 Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (New South Wales Supreme Court, Giles CJ, 11 March 1997) Tan v Silverdale Soil & Sand Pty Ltd [2013] NSWSC 391 Texts Cited: Wallace, A., "Virtual Justice in the Bush: the Use of Court Technology in Remote and Regional Australia" (2008) 19 Journal of Law, Information and Science 1 Category: Procedural and other rulings Parties: Plaintiff: Kenneth Rothe Defendant: David Scott Representation: Counsel: Plaintiff: Mr C J Dibb Defendant: Mr D Scott (in person)