Background
Rachel McClure sued Alan Lam over surgery performed in November 2013 for pelvic organ prolapse involving pelvic mesh and a sub-urethral sling. She alleges, among other things, that Lam failed to provide appropriate advice, should have used a different procedure, and performed the surgery below a reasonable standard. The proceedings began in 2020, and the seven-day trial was scheduled to commence on 19 October 2026.
McClure sought permission for two overseas urogynaecologists to testify by audio visual link: Dr Wael Agur from Scotland and Dr Dionysios Veronikis from the United States. Agur was to give expert evidence only. Veronikis, who removed McClure’s mesh and sling in 2023, was expected to testify primarily about disputed facts he observed while treating her, while potentially also giving opinion evidence. McClure submitted that requiring the doctors to attend in Sydney would be substantially more expensive, with estimated attendance costs exceeding A$110,000 for Agur and A$275,000 for Veronikis.
Lam opposed remote testimony, arguing that it could impede cross-examination, assessment of reliability, management of extensive documentary material, and effective concurrent expert evidence. He particularly emphasized that Veronikis would be both a factual and potential expert witness whose evidence would face a robust challenge.
The Court’s Holding
Emmett J permitted Agur to testify by audio visual link under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) and r 31.3 of the Uniform Civil Procedure Rules 2005 (NSW). The Court was not satisfied that requiring the overseas witnesses to travel to Sydney would be more convenient overall or that remote evidence would necessarily be unfair to Lam. Modern technology, advance arrangements, and the trial judge’s case-management powers could adequately address the documents, time-zone differences, technical risks, and the fact that other experts would appear in person.
The Court nevertheless dismissed the application concerning Veronikis. Because his disputed factual observations and potential expert opinions would be difficult to disentangle, his evidence could require special directions, active management by the trial judge, and different treatment when given alone or concurrently with other experts. Those complications, together with the anticipated challenges to his reliability and credibility, meant that permitting him to testify remotely was not an appropriate exercise of discretion.
The parties were directed to submit an agreed or competing protocol for Agur’s remote evidence. Each party was ordered to bear its own costs of the motion, while the Court reserved the question of costs thrown away because McClure withdrew portions of Veronikis’s report and the experts’ joint report.
Key Takeaways
- A substantial difference in cost and inconvenience may support allowing an overseas expert to testify by audio visual link, particularly when the witness will give expert evidence only.
- The absence of a statutory bar under s 5B(2) does not create a right to remote testimony; the applicant must still show good reason, and the Court retains discretion to refuse the request.
- A treating doctor who will give contested factual evidence as well as possible opinion evidence may be required to appear in person when the overlapping roles would complicate cross-examination and trial management.
Why It Matters
The ruling illustrates the witness-specific approach Australian courts take to remote evidence. Advances in video technology and substantial travel costs can justify remote expert testimony even in document-heavy litigation involving concurrent evidence, but convenience alone does not determine the result.
For litigators, the decision underscores the distinction between a retained expert and a treating practitioner whose factual observations are disputed. It also highlights the importance of making remote-evidence applications within prescribed timeframes and presenting concrete arrangements for documents, location, technology, and scheduling.