Customary Etiquette and Solemnity even when Appearing by Audiovisual Link or Telephone

In Wang v Yu (No 2) [2024] NSWSC 4 (17 January 2024) Meek J, sitting in the Equity Division of the Supreme Court of New South Wales, made salutary remarks in relation to parties – whether by counsel or alone in the event of self-representation – appearing by audio or audiovisual link.  The occasion in question was a listing of the matter to further argue the issue of costs following judgment.  Having been given leave to appear by audiovisual link – as was counsel for one of the other parties –  the self-represented party Dr Wang, at least initially, was driving.  His Honour adjourned the matter until Dr Wang reached her office.

His Honour wrote:

Requests for AVL appearance

40. Each of Mr Lonergan [of counsel] and Dr Wang [self-represented party] , for different reasons, sought permission to appear by AVL. I gave permission for that to occur, subject to objection. No party objected to that permission being given.
41. Dr Wang’s reason for appearing by AVL in the email requesting it made reference to the state of her health, but also included the following statement:

“I understand the importance and gravity of the matter at hand, and I assure you that my commitment to full cooperation remains unwavering. I believe that joining the court proceedings through a video conference would not only alleviate the physical strain on my health but also ensure my active and undivided participation in the case.”

42. On the morning of 20 December 2023, the matter was listed to commence at 9 am. When I first entered the Court Dr Wang was visible on the AVL connection but in the process of driving a car. It was evident that she had joined by a mobile phone. She had not prior to my coming into Court indicated to my staff that she was in some way delayed and would require time to arrive at a destination where she could access AVL whilst not in transit. She had not requested even a brief opportunity for her to pull the car over and proceed whilst sitting in the car as parked.
43. I indicated to her that it was unsatisfactory that she should appear in that way and that I would immediately adjourn so as to enable her to pull over and seek to connect in a safe environment.
44. Ultimately, approximately half an hour later Dr Wang had arrived at her office and appeared by AVL that way.

Mode of appearance at hearing and guidelines for AVL appearance

45. In Zhang v Zhang [2022] NSWSC 924, I stated:

“Mode of appearance at the hearing

52.   Proceedings in Supreme Court are generally held in person: see e.g. Xia v Santah Pty Ltd [2003] NSWSC 807 at [9] per Palmer J. In proceedings commenced by statement of claim, subject to the rules of court and the Evidence Act 1995 (NSW) (Evidence Act), evidence must be given orally at Court: r 31.1(2) UCPR. The Court may direct that all or any of a witness’s evidence in such a trial be given by affidavit: r 31.3(3) UCPR.

53.   However, the Court may permit parties or witnesses to the proceedings to give evidence and make submissions by telephone, audio visual link or other form of communication: r 31.3(1) UCPR.

54.   Such a decision, as to whether to permit the giving of evidence and making of submissions by telephone, audio visual link or other form of communication, is “for the management of proceedings” within the meaning of s 58 Civil Procedure Act 2005 (NSW) (CPA).

55.   The Court in deciding whether to make any order for the management of the proceedings, must seek to act in accordance with the dictates of justice: s 58(1)(a)(ii) CPA.

56.   For the purposes of determining what the dictates of justice are in a particular case, the Court must have regard to the provisions in ss 56 and 57 CPA and may have regard to the matters set out in s 58(2)(b) CPA to the extent which the Court considers them relevant.

57.   The provisions of s 58(2)(b) CPA are as follows:

“(2) For the purpose of determining what are the dictates of justice in a particular case, the court—

…

(b) may have regard to the following matters to the extent to which it considers them relevant—

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.”

58.   A consideration of some significance to be taken into account in determining whether to permit a witness to give evidence by telephone, audio visual link or other form of communication is whether the issues in the case will involve assessing the credibility of the witness: Xia v Santah Pty Ltd at [2]-[6] per Palmer J.”

…..

54. One might have thought it self-evident that it is not appropriate that anyone should even consider the possibility of attempting to appear by AVL whilst driving a car, let alone in fact appear in that manner.
55. The fact that Dr Wang even entertained the possibility of appearing whilst driving in traffic one might think was at odds with her assertion in the request for permission to appear by AVL that she understood the importance and gravity of the matter at hand and that appearing through AVL would ensure her active and undivided participation in the case.
56. Whilst I do not wish to unnecessarily dwell upon the matter, the matter is of some seriousness and should not pass without some salutary comment.
57. The usual court etiquette, protocols, procedures and restrictions which apply to in-person hearings apply to a virtual hearing whether virtual in whole (with all participants joining remotely) or virtual in part (with some participants in person and others joining remotely).
58. Whilst I have as counsel seen occasions on which witnesses or other participants appear by AVL informally quite apart from the question of the solemnity of the occasion, the Court expects participants to use their common sense in appearing.
59. Parties, legal representatives or any other persons given leave to appear by AVL should understand that the appearance is to be done in a way consistent with the appropriate decorum and solemnity of the occasion that would apply as if the person appearing were physically present in the courtroom.
60. The Court does from time to time understand that on some occasions exigencies will give rise to participants appearing in remote locations. For example, sometimes witnesses are sought to be cross-examined at extremely late notice and, despite some inconvenience, willingly make themselves available to assist in the administration of justice by connecting whilst located in a remote location. I recall one occasion as counsel where a deponent was required for cross-examination and appeared by mobile phone in the midst of a rural retreat or vineyard.
61. However, lest there be any doubt about it, anyone given permission to appear by AVL should not do so in a manner or environment in which they might be distracted or unable to give their undivided attention properly and safely to the proceedings before the Court. Specifically, an AVL participant should never participate by AVL in a manner which by dint of their situation or surroundings gives rise to any appreciable risk of placing themselves or others in their vicinity in danger (in this case appearing whilst driving a car with potential risk to herself, other vehicle drivers, passengers and pedestrians).

(emphasis added)