In AMP Pty Ltd v Chubb Insurance Australia Ltd (No 2) [2025] NSWSC 789 (21 July 2025), the litigation involved a claim by the plaintiff – a substantial commercial entity – against the defendant insurers, for a sum of $300m, under a professional indemnity policy. On 30 August 2024 a judge of the Supreme Court of New South Wales set the matter down for trial for three weeks commencing just short of a year later, commencing 4 August 2025. Shortly after the August 2024 hearing the plaintiff’s in-house counsel notified an important lay witness, one Dainton – a former employee of the plaintiff having special knowledge of the plaintiff’s remediation program, one of the salient components of the litigation subject matter. In response, Dainton indicated that he planned an important trip to the UK, with his partner during the trial period. Such unavailability of Dainton to give evidence at trial – short of subpoena – was not communicated to the plaintiff’s external solicitors, or the defendants, or the court. No subpoena was issued to Dainton to ensure his attendance. On 30 June 2025 the plaintiff’s solicitors advised the defendants that the plaintiff intended to bring an application to take Dainton’s evidence by AVL link. Dainton was due to depart Australia on 23 July 2025 (2 days after the decision was delivered, following hearing on 14 and 17 July). Such application for AVL evidence – in what was necessarily a document heavy case with Dainton inexorably to be cross-examined on such documents – was made and refused by Rees J. Her Honour was critical of the omission by the plaintiff, at a much earlier juncture, to subpoena Dainton, and or apply for AVL link evidence. The core of her Honour’s reasoning, referable to general practice and the particular facts, appears below at [29]-[33].
Her Honour wrote:
[15] On 30 June 2025, being five weeks before the commencement of the trial, AMP’s solicitors advised the insurers that AMP intended to bring an application to take Mr Dainton’s evidence by AVL link. Ms Cahill [the plaintiff AMP’s solicitor] said she did not raise the matter until after a trial judge had been allocated, as the trial judge ought to hear the application.
[16] Chubb and Lloyd’s advised that their clients did not consent to AMP’s proposal. On 8 July 2025, AMP filed its motion. Ms Cahill explained that, on 26 July 2025, Mr Dainton and his partner planned to depart on an overseas trip. Mr Dainton would not return to these shores until 22 August 2025. That is, the trial will begin and end while Mr Dainton is away. Mr Dainton is only available to give evidence between 11 and 14 August 2025, as he will be on a cruise before this and has made other plans with his partner’s family on other days. In particular, Mr Dainton will be attending his father-in-law’s 89th birthday party on 18 August 2025, before returning to Australia and his employment.
[17] Absent compulsion, Mr Dainton is unwilling to interrupt his travels to return to Sydney to give evidence in person. It was proposed that Mr Dainton would give evidence via his laptop from an Air BnB in Sheffield, with the Court sitting outside of its usual hours to take his evidence.
[18] The motion was initially heard on 14 July 2025. I was concerned to learn that AMP had not served a subpoena to give evidence on Mr Dainton. I was told that this had not been done as Mr Dainton proposed to be on holiday in London, was a person with his own family and “very human commitments” and not in AMP’s camp or control. Whilst one might have thought that those were good reasons to serve a subpoena, AMP was not inclined to do so as it would interrupt a significant family holiday in Europe and attending the 89th birthday of Mr Dainton’s father-in-law. This was said to involve an intersection between AMP’s ability to compel the witness “and the very human factor that he is someone who has other things in his life.”
[19] At the conclusion of the hearing of the motion, I enquired whether AMP had investigated the possibility of putting Mr Dainton and his partner on a different cruise so that he could give evidence in the trial before departing overseas. I offered to schedule Mr Dainton’s evidence at a time in the trial when he might not normally be expected to appear. I invited AMP to make enquiries as to whether Mr Dainton’s current employer could accommodate some changes to his leave. I indicated that I was not minded to make the order sought, as unfairness would be occasioned to the insurers. I gave AMP an opportunity to make further enquiries as to whether other arrangements could be made. I strongly suggested that AMP serve a subpoena to give evidence on Mr Dainton.
[20] On 14 July 2025, Ms Cahill made further enquires of Mr Dainton, who advised that it was important to his partner that they take this trip and important to their relationship that they be able to travel together. The trip had been organised to accommodate the varying availabilities and competing personal commitments of Mr Dainton’s partner’s other family members. The birthday party was being attended by some ten other family members (presumably of his partner, rather than himself). After the birthday party, Mr Dainton would then return to Australia to resume work on 25 August 2025, whilst his partner would take a separate trip with members of her extended family.
[21] When the motion was further heard on 17 July 2025, Ms Cahill said that, if so required, Mr Dainton could give evidence in the London office of AMP’s solicitors during Australian court sitting times. Ms Cahill declined to serve a subpoena to give evidence on Mr Dainton, as it is not her practice nor, to her observation, the practice of her partners. Finally, Ms Cahill was instructed that, if the motion was not granted, then AMP would not issue a subpoena and would elect not to read Mr Dainton’s evidence. AMP would tender the documents exhibited to Mr Dainton’s evidence and seek leave to have another former employee provide an affidavit in respect of a spreadsheet referred to by Mr Dainton.
Subpoenas to give evidence
[22] It was submitted by AMP’s senior counsel that not serving a subpoena in the circumstances was “good practice”. AMP’s counsel further submitted in writing:
This reflects the ways of working between a litigant and a witness prepared to assist the litigant in the context of modern litigation involving preparation of detailed affidavit evidence, which is the expected means of adducing testimonial evidence. As Ms Cahill deposes, it is not the ordinary practice of litigation solicitors conducting significant commercial litigation to subpoena witnesses, instead relying on voluntary assistance by the witness (a practice which reflects the need for voluntary assistance in preparing the witness’ evidence well in advance of the trial). The Court should have regard to those matters in the exercise of its discretion.
[23] Where I am asked to have regard to this “practice” in the exercise of my discretion, it is necessary that I squarely address this submission. At the outset, I note that Ms Cahill does not speak to “the ordinary practice of litigation solicitors conducting significant commercial litigation” but to her practice and her observation of her partners’ practices. No authority was cited in support of this suggested practice, nor practice note or court rule. Such a practice is news to me.
[24] A subpoena to attend to give evidence is an order in writing that requires the person named to attend the court as directed by the order for the purpose of giving evidence: rules 33.1(1), 33.2(1), UCPR. A subpoena is issued by the Court. Failure to comply without lawful excuse is a contempt of court: rule 33.12, UCPR.
[25] As Gerard Carter explained in Subpoena Law and Practice in Australia (1996, Blackstone Press) at page 12–13: (emphasis added)
If a witness is willing to appear and does in fact appear to give evidence… without compulsion, then there is, of course, no need for a subpoena.
It is, however, good practice in all cases to effect personal service of a subpoena and tender proper conduct money and expenses, and to be in a position on the return of the subpoena to prove by affidavit the personal service and tender in case the witness fails to attend court …. Such a failure might result from reluctance to appear or through oversight, absence, illness, misadventure or attendance under compulsion elsewhere. In any of these cases the party at whose request the subpoena was issued could then decide whether to apply, on appropriate evidence, to enforce the subpoena or to adjourn the hearing. …
Service of a subpoena on an employee who may be willing is in practice still necessary because the employee needs to show the subpoena to the employer in order to obtain leave of absence from ….
[26] More recently, in Roberts-Smith v Fairfax Media Publications Pty Ltd (No 24) [2021] FCA 1461, when considering whether witnesses were giving evidence voluntarily, Abrahams J observed “Certainly the witnesses have been subpoenaed, but it is not uncommon for that to occur, and as said by the applicant, is reflective of good practice. A subpoena is issued to ensure a witness attends court, and can be issued even if a witness is cooperating”: at [83].
[27] A subpoena to give evidence is served to ensure that the Court can administer justice, in two key respects: first, so that the Court can decide the case on the basis of the evidence on which the parties wish to rely in support of their claim or defence; second, so that the Court can decide the case in accordance with the case management principles in Pt 6 of the Civil Procedure Act 2005. As the High Court observed in UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45, “The timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute”: at [55]. Serving a subpoena to give evidence, whenever there is a chance that a witness may not attend as initially indicated, reduces the prospect of trials not going ahead as scheduled.
[28] A classic case in which a subpoena should be served is where the witness is a former employee of the party who wishes to call them. The witness is no longer under the party’s control. Another classic case is where the witness advises that they may not be able to attend the trial after all, having made competing arrangements.
[29] I do not accept that Ms Cahill’s practice is good practice. Where hours and days have been spent with a witness, preparing a detailed affidavit, it is good practice to secure their attendance at trial. The need to do so can be simply and clearly explained.
[30] Nor do I accept the suggestion that, if Mr Dainton was served with a subpoena, he would be uncooperative out of some sort of unhappiness or discontent. Mr Dainton’s affidavit indicates that he is professional person. He is a Certified Practising Accountant with a Bachelor of Economics and a Master of Business Administration. Mr Dainton has worked in the insurance industry for 30 years. A simple explanation as to why the subpoena was served would be readily understood, particularly by someone who has had significant involvement in litigation involving AMP. Indeed, if he had been served in a timely manner, shortly after the matter was listed for trial, then Mr Dainton may well have been able to accommodate the trial dates without personal inconvenience.
[31] For completeness, it is also good practice, when taking a hearing date, to have the available dates for one’s witnesses. Organising a trial is no easy matter, as there are many components. Most components can be changed, such as the judge and the legal representatives. But the one thing that cannot be changed without potentially changing the outcome of the case is the lay witnesses, being the people that saw, heard or did the relevant things.
[32] On becoming aware that one’s witness is not available to appear at trial (which should not occur if one has made an enquiry as to their availability before taking a hearing date, but does happen), this should be promptly communicated to the parties and the Court, so that alternative arrangements can be made, if possible, including vacating the trial and allocating another hearing date.
[33] If it becomes necessary for a witness to give evidence by AVL from overseas (which should not be necessary if the witness’ availability is sought before a hearing date is taken and their attendance has been secured by the service of a subpoena to give evidence), such an issue should be raised with the parties immediately and, absent agreement, re-listed before the Commercial List Judge. Whilst a trial judge may well hear such an application, the Commercial List does not allocate to trial judges more than a month out from a trial. That may be too late to do fairness to all parties when trying to deal with the problem.
AVL link
[34] Turning to the application, s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) provides: (emphasis added)
5B Taking evidence and submissions from outside courtroom or place where court is sitting — proceedings generally
(1) Subject to any applicable rules of court, … a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting.
(2) The court must not make such a direction if —
(a) the necessary facilities are unavailable or cannot reasonably be made available, or
(b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or
(c) the court is satisfied that the direction would be unfair to any party to the proceeding, or
(d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission.
…
(3) In a proceeding in which a party opposes the making of [such] a direction … 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.
[35] As Bell P (as the Chief Justice then was) observed in Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250, “The effect of s 5B … is that, whilst the court has a discretion whether or not to permit evidence to be given by video link, the court must not make such an order if satisfied that the direction to allow such a cause would be unfair to a party”: at [38]. The assessment of unfairness involves a broad evaluative judgement of the kind referred to in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 at 210–212: at [46]. Further, at [50]–[51]:
50 Constraining a party to cross-examining a witness by video link will not always, but may sometimes, involve a degree of unfairness to that party, depending on all the circumstances of the case. This is why an assessment of unfairness necessarily involves a judgment of an evaluative character. Relevant circumstances may include the importance of the witness, whether his or her credit was in issue, the nature and extent of documents involved, whether translation of documents or oral evidence is necessary, time differences in the other forum and the quality of technology. …
51 Furthermore, the fairness or otherwise to one party of permitting a witness called by the opposing party to give evidence by video link may be affected by the timing of the application relative to the trial, the availability of other options to the party making the application and the circumstances of the witness involved. …
[36] Since the COVID-19 pandemic, there has been a vast increase in the number of cases heard remotely; significant experience has been gained in this field: Re Mulberry Capital Management Pty Ltd v Shen — AVL application [2022] NSWSC 1023 at [20] (Hammerschlag CJ in Eq). So too has the case law on this subject, as recently reviewed by Shariff J in ACN 117 641 004 Pty Ltd (in liq) v S&P Global, Inc (No 5) [2025] FCA 687 (albeit the specific requirements of s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 differ somewhat from the Federal Court provisions). Amongst these cases, Dhanji J (Harrison CJ at CL agreeing) recently observed in R v Walker [2025] NSWCCA 62 that there is “something of a trend towards re-evaluating a confidence in the functional equivalence between in person and AVL evidence”: at [32]. His Honour emphasised that the court’s increased use of, and confidence in, the use of AVL “should not be confused with such evidence being the equivalence of in-person testimony”: at [37].
[37] It remains the case that the party seeking an AVL order bears the onus of establishing that it is appropriate for it to be made: North v Daniel [2021] NSWSC 828 at [27]. A persuasive case should be made out for the use of AVL, where this is sought to be imposed on an unwilling cross-examining party: Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) at [77] (Buchanan J).
[38] As to the exercise of discretion to make an AVL direction, and noting that the Federal Court rules are in different terms, the views of Jackson J in Australian Securities and Investments Commission v Wilson [2020] FCA 873 resonate nonetheless, at [24]:
While these cases provide guidance on the approach the court must take, the reason to exercise the discretion ‘is to be found in any individual proceeding in the facts and circumstances of each proceeding and by reference to the overriding consideration of ensuring that justice is done as between the parties to that proceeding’: Corrigan [v Commvault Systems (Aust) Pty Ltd [2011] FCA 107] at [12]. So, as Edmonds J said in Australian Competition and Consumer Commission v Stores Online International Inc [2009] FCA 717 at [14]:
… the choice in every case cannot be determined solely by reference to general principles because it is the application of those principles to the facts and circumstances of the particular case which must determine the choice; in the circumstances of a particular case, a matter may point one way and in another case it may point another way. At the end of the day, the exercise of the discretion as to what is appropriate in a particular case will involve a balancing exercise as to what will best serve the administration of justice consistently with maintaining justice between the parties …
Conclusion
[39] Dealing with s5B(3) at the outset, I am satisfied that it would be in the interests of the administration of justice for the court to make the order sought, in that it would enable the Court to have all of the evidence on which AMP relies in support of its case.
[40] Turning then to whether any of the circumstances described in s 5B(2) pertain, as to s 5B(2)(a) – whether the necessary facilities are available — I was not satisfied that an AVL link via Mr Dainton’s laptop from an air BnB in Sheffield met this description. I am satisfied that the facilities provided by AMP’s London solicitors meet this description. Whilst Chubb submitted that the technological support that could be provided by the London firm at 1.00 am was not something that the Court could have confidence in, I expect that a large London law firm will be able to provide 24-hour support.
[41] As to s 5B(2)(b), I am not satisfied that the evidence can be more conveniently given at trial where, absent an AVL direction, it will not be given at all. But that situation has been brought about by AMP’s failure to serve Mr Dainton with a subpoena to give evidence in a timely manner, and its decision not to do so now. If an AVL direction is not made, AMP will not read Mr Dainton’s affidavit. Indeed, where the insurers require him for cross-examination, AMP cannot read Mr Dainton’s affidavit. That is a consequence of AMP’s own choices.
[42] As to s 5B(2)(c), whether a direction to take Mr Dainton’s evidence by AVL “would be unfair to any party”, the question is not whether it would be unfair to any party not to make the direction, as AMP submitted it would be (albeit that may be a consideration under s 5B(3)). Five matters spring to mind.
[43] First, this case is of high-dollar value, being $300 million.
[44] Second, Mr Dainton’s evidence is important. While other lay witnesses will be called by AMP in respect of the Program, Mr Dainton was the only witness who would give evidence in respect of a particular time period. Making an AVL direction may be unfair to the insurers if it has the consequence that they cannot thoroughly test Mr Dainton’s evidence, particularly given how AMP proposes to deploy that evidence in its case. As I understand it, AMP intends to establish the rigour of the Program, tender a sample of 150 client files remediated in the Program, and ask the Court to infer that all payments made under the Program were based on a reasonable assessment of AMP’s liability (being a requirement of the policy wording). As such, Mr Dainton’s evidence is important indeed.
[45] Third, Mr Dainton’s credit is not in issue. Nor is a translator required.
[46] Fourth, the cross-examination will involve taking Mr Dainton to many documents, including many documents of considerable length. By the resumed hearing of the motion, Chubb had been able to form an estimate as to how long Mr Dainton would be required for cross-examination, being more than one day. Lloyd’s may have some additional cross-examination, but it is likely to be limited.
[47] The parties have agreed that the documents in this case will be dealt with by an electronic Court Book. As such, even if Mr Dainton gave evidence in Sydney, he would be looking at documents on a screen. But experience suggests that looking at documents over a link from the UK will have additional moments of delay, interruption and dislocation which would be lessened if the witness were in the courtroom in Sydney. Further, I consider that the observations made by Stevenson J in Bicheno Investments Pty Ltd v Winterbottom (No 2) [2017] NSWSC 413 hold true, at [34]–[35]:
it is notoriously hard for a cross-examination to gain momentum when conducted by audio visual link, especially where … the cross-examination is likely to be document heavy. … It may well be unfair to the plaintiffs to deprive them of the subtle, but often very real, advantage of having [the witness] in the witness box and in the same room as the cross-examiner.
[48] Fifth, there is a time difference. AMP proposes that Mr Dainton will give evidence starting from 1 am in the morning (his time) and continuing through the wee hours of the morning. As Chubb submitted, a witness giving evidence at 1.00 am in the morning from anywhere had its own problems.
[49] Where Mr Dainton will have been on holiday in Europe for two weeks or so by then, this can be expected to be uncomfortable and exhausting for the witness. This is far from ideal, for any party. Chubb submitted that it did not want there to be any suggestion that, if Mr Dainton did not perform well, any allowance ought be made for him as having been cross-examined over an AVL link or at an inconvenient time of day. AMP undertook not to make such a submission. That does not really solve my problem, of having a witness who cannot necessarily perform their task of giving accurate and complete answers to potentially difficult, taxing and protracted questions on important matters. I am concerned about this.
[50] I consider that it is unfair to the insurers to require them to test Mr Dainton’s evidence via an AVL link from the UK, given the importance of his evidence, the document-heavy nature of the cross-examination and the fact that the witness will be giving evidence for several hours through the night (his time). Given the manner in which AMP seeks to prove its case, by establishing and inviting the Court to draw inferences such that the insurers should be obliged to pay $300 million, I consider that it is unfair to thereby impede the insurer’s ability to properly test Mr Dainton’s evidence.
[51] As to s 5B(2)(d) – whether the witness will not give evidence — I have no power to require Mr Dainton to go down to London and give evidence through the night. The Court would be reliant on his co-operation. That said, I have no reason to think that it would not be forthcoming.
[52] Given that a circumstance described in s 5B(2) exists, I cannot proceed to make the order. If I am wrong about this, then I would not have exercised a discretion in AMP’s favour given the circumstances described in this judgment. I accept Chubb’s submission that no reasonable explanation has been given for this late application. AMP does not appear to have canvassed Mr Dainton’s availability until after a hearing date had been allocated. When told of the trial date, Mr Dainton immediately informed AMP of his plans, but nothing was done at the time, either to move the trial date or to let the insurers know of the difficulty. There was no evidence that Mr Dainton was then asked to move his personal commitments, or that he had tried to do so. AMP had (and has) the means at its disposal to fix this problem, by serving a subpoena to give evidence, but declines to do so.
[53] The admonition in Filby v TEG Live Pty Ltd [2022] NSWSC 1280 bears repetition. The facts were slightly different, but the problem was the same, being “entirely the creation” of the applicant. Slattery J observed at [20]–[21]:
[20] … The proper course is for a party to apply for a witness to give evidence by AVL before the witness makes final plans to go overseas and well before the hearing. This gives the Court greater flexibility to deal with the application and to minimise potential unfairness to each side. …
[21] … No party should assume in advance, as seems to have occurred here, that the AVL Act, s 5B discretion will be exercised in that party’s favour. … The Covid-19 pandemic international border closure is over, so it is not inevitable these orders will be granted, as it was throughout most of 2020 and 2021.
[54] For these reasons, I dismiss the motion with costs.
(emphasis added)
A link to the full decision is here.
