Al Muderis v Nine Network Australia Pty Limited

1. By application dated 19 March 2024, the respondents sought orders pursuant to s 47A(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), that Lisa Çalan, Jeffrey Ladouceur, and Anna Rochford be permitted to give evidence by audiovisual link (AVL). The argument was heard on 21 March 2024. The respondent relied on the affidavits of Isabelle Gwinner dated 4 March 2024, 18 March 2024 and 20 March 2024, respectively. The applicant relied on the affidavit of Nicholas Pullen dated 20 March 2024.
2. On 22 March 2024 I allowed the applications stating, inter alia, that having balanced the considerations relevant to each application, I was satisfied in each application that making the order sought was in the best interests of the administration of justice. Given the time-sensitive nature of the applications, I indicated that I would provide further reasons in due course. These are those reasons.

1. The principles relevant to these applications were not in dispute. In summary, the overriding consideration in the exercise of the discretion is what the Court considers is in the best interests of the administration of justice, including the need to ensure that justice is done between the parties. The discretion is a broad one, to be exercised on the particular facts and circumstances of the case. The respondents, as the moving parties, bear the onus of persuading the Court to exercise the discretion in s 47A.
2. The process of deliberation required to exercise the s 47A(1) discretion is accurately described as a balancing exercise. As noted by Murphy J in Southernwood v Brambles Limited (No 2) [2022] FCA 973 at [43]:

[t]he courts have taken into account a variety of factors in exercising the discretion under s 47A(1), including the employment commitments of an overseas witness; whether the credibility of the witness is in issue; whether the witness's evidence will be "centrally important" to the case; and whether the use of video link may frustrate or delay the management of documents in cross examination.

1. There is also authority that a witness' poor health may weigh heavily in favour of allowing a witness to give evidence by AVL: Liu v Option Funds Management Limited [2022] FCA 444 at [19], [44].
2. Moreover, the parties cited, inter alia, various authorities to set out the advantages and disadvantages of the use of remote technology in assessing a witness' credibility. Several authorities emphasise the benefit that it is possible, with AVL, to obtain a clearer view of the witness, such that facial expressions, reactions, bodily movements and gestures are easier to discern when evidence is given remotely, as opposed to when the witness is positioned some distance from the bench in a courtroom: Tetley v Goldmate Group Pty Ltd [2020] FCA 913 at [16]; Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd [2020] FCA 1153; (2020) 147 ACSR 521 at [49]; Universal Publishing Music Pty Ltd v Palmer [2020] FCA 1472 at [32]. By contrast, other authorities raise concerns of a lack of solemnity about giving evidence remotely, as well as difficulty in appreciating and assessing non-verbal signals such as minor differences in emphasis or tone: Palmer v McGowan (No 2) [2022] FCA 32; (2022) 398 ALR 524 at [43]- [47]; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; (2009) 181 FCR 152 at [78].

1. At the outset it should be recorded that I accept that the respondents' preference in relation to each witness is that they give evidence in person. This is borne out by the fact that the respondents have called very many witnesses who have travelled from overseas and interstate to give evidence in person. I accept that the applications are not made for reasons of cost or convenience. I note also at the outset that any complaint by the applicant about the timing of these applications is without merit, and the applications are made in circumstances where considerable efforts have been made to facilitate the giving of evidence in person.

1. Ms Çalan is in Turkey. The estimate of her cross-examination was at least 3 hours.
2. The respondents submitted that the affidavit evidence discloses that extensive efforts had been made to secure the necessary arrangements; that Ms Çalan was unable to attend the trial in person to give evidence for medical reasons; and that Ms Çalan is not an employee or agent of the respondents and is not, in any practical sense, compellable to travel to Australia for the purpose of these proceedings, with the consequence that unless her evidence is given remotely, the respondents will be deprived of the benefit of that evidence. The respondents addressed the evidence of Ms Çalan and its significance to the proceedings, which relates to the justification defence. The respondents referred to the affidavit of Ms Gwinner dated 18 March 2024, which details her recent dealings with Ms Çalan, and the effort she describes Ms Çalan went to obtain the medical evidence. The respondents accepted that Ms Çalan's credibility will be in issue and recognised that the applicant intends to put to Ms Çalan photos and videos on social media that suggests that her complaints against the applicant are fabricated. They submitted that all the documents, photos and videos being put to witnesses by the applicant in cross-examination are being displayed electronically (even where evidence is given in person) so the provision of evidence via AVL will not frustrate or materially delay this process. The respondents submitted that as Ms Çalan does not speak English, her evidence will be given via an interpreter, which necessarily blunts the immediate impact of in-person cross examination and reduces the admitted disadvantage of remote cross-examination.
3. The respondents submitted that if Ms Çalan cannot give evidence via AVL, the Court will be deprived of her side of what is a significant case study, and instead the Court will only have before it the extensive evidence given by the applicant concerning Ms Çalan's case study. It was submitted that on balance, the prejudice to the respondents of being deprived of Ms Çalan's evidence outweighs the prejudice to the applicant of only being able to cross-examine her by AVL.
4. The applicant opposed the application. He submitted that Ms Çalan makes serious allegations against him about the content of consultations and the content of oral communications that passed between them and makes claims about her health that are contradicted by her own photos and videos posted on social media. The applicant criticised the medical evidence relied on by the respondents, submitting it is lacking in detail, and insufficient to establish the basis of the submission that she is unable to travel due to health reasons. The applicant highlighted the difficulties of cross-examining over AVL, focusing on this witness and noting those difficulties are likely to be exacerbated given that Ms Çalan's evidence is to be given via an interpreter. The applicant also complained that if documents were called to be produced during the witness's evidence, the call could not be enforced.

1. It may be accepted that the medical evidence relied on lacks some detail which may ordinarily be in medical reports provided for such applications. That said, there is no reason to doubt the report provided. The medical evidence is that Ms Çalan is not able to travel in her current state. The difficulties in obtaining a written report are outlined in the affidavit of Ms Gwinner, and I accept that is the context in which this medical report is to be considered. Ms Gwinner also details what Ms Çalan informed her as to her health and current physical limitations. I am satisfied that Ms Çalan cannot travel to Australia for health reasons.
2. The case study relating to Ms Çalan is significant. In summary, the respondents' case "is that Ms Çalan was returned to Turkey without any doctor to treat her or care for her, and to a country with no experience whatsoever in the management of osseointegration patients. She has suffered ongoing issues with her implants in Turkey and has had repeatedly to seek medical assistance in relation to her implants outside of Turkey". The applicant also makes significant allegations against Ms Çalan, alleging that she is fabricating her evidence, and that posts on social media contradict her affidavit evidence.
3. I was satisfied that it is in the interest of justice that Ms Çalan give evidence. The current circumstances of Ms Çalan are not of the respondents' making. Importantly, the Court will be deprived of her evidence if the application is not granted. Further, given the significant allegations made against Ms Çalan, she ought to be given an opportunity to address them. The applicant asserts an interpretation of her posts on social media which is challenged by the respondents. It is a position that will be the subject of submissions at the end of the trial, but it should not be assumed that the position asserted by the applicant will necessarily be accepted. The inference to be drawn from the posts, if Ms Çalan were not given an opportunity to comment, where her absence is because of health reasons, may be impacted.
4. I recognised that it would obviously be preferrable if Ms Çalan attended in person, and that cross-examining over AVL may have some difficulties. I note that any issue as to the call for production of documents is entirely speculative.
5. Balancing the relevant considerations, I was persuaded that it is in the interests of the administration of justice that an order be made pursuant to s 47A of the FCA Act that Ms Çalan give evidence by AVL.

1. Mr Ladouceur is in the United States of America. The respondent submitted that Mr Ladouceur is unable to attend the trial in person for medical reasons. The estimate given by the applicant for his cross examination was one hour.
2. The respondents acknowledged that the original basis upon which it sought the applicant's consent to have Mr Ladouceur give evidence via AVL was his difficulty obtaining a visa due to prior convictions. However, the respondents noted that since that time, Mr Ladouceur's treating physician has provided a medical certificate stating that he is due to have further surgery on 27 March 2024 and is unable to travel for six months thereafter. Again, the respondents submitted that as Mr Ladouceur is not their employee or agent, he is not compellable to travel to Australia to give evidence in the proceeding. The significance of Mr Ladouceur's evidence was addressed, and it was noted that Mr Ladouceur's evidence is confined as he only had one consultation with the applicant in the USA and never proceeded with the surgery. The respondents also acknowledged that there is an issue as to the credit of the witness, in relation to what was said at his meeting with the applicant.
3. The applicant opposed the application. He submitted that the limited nature of the allegations and expected brevity of cross-examination is not a sufficient reason to allow the application. The applicant criticised the sufficiency of the evidence relating to the witness' ability to get a visa to travel to Australia to give evidence, as well as the sufficiency of the medical evidence now relied on. This includes information as to whether the surgery could be delayed. It was also submitted that Mr Ladouceur has been issued with a subpoena which, among other things, called for communications with Mr Hernandez. It is apparent from Mr Ladouceur's own affidavit that he has become involved in these proceedings due to the intervention of Mr Hernandez. It was submitted that if Mr Ladouceur is not in the jurisdiction, the applicant is unable to test Mr Ladouceur's claim that he has no communications responsive to the subpoena. The applicant submitted that Mr Hernandez has been shown to have communicated with a significant number of witnesses about the subject matter of the proceedings and their evidence, which is relevant to the credit of each witness.

1. Accepting the limitations of the medical evidence, I was nonetheless satisfied that Mr Ladouceur is not able to travel for health reasons. He was to have surgery on 27 March 2024, a few days after this application was heard. In my view, the evidence did not need to address whether the surgery could be delayed.
2. The witness' evidence is of a discrete event. Although there is a credit issue, his evidence can be assessed over AVL. The complaint by the applicant that they cannot call for the production of documents during his evidence, is again speculative. The significance of that submission is also in the context of the limited nature of the evidence. That said, the respondents said they would facilitate the production of documents to the best of their ability if a call was to occur. The submission about any cross-examination in relation to communication with Mr Hernandez is also speculative and based on an acceptance of the applicant's submission as to the significance of any such communication. In any event, the significance of any communication is a matter which, no doubt, will be addressed in closing submissions. I note that the applicant has not put to any witness that they have given false evidence as a result of communication with Mr Hernandez.

1. Ms Rochford is in South Australia. The respondent submitted that Ms Rochford's wellbeing will be further deleteriously impacted should she be called to give evidence in person.
2. The respondents submitted that the affidavit evidence discloses that Ms Rochford has diagnoses of post-traumatic stress disorder, depression and anxiety; has previously disclosed suicidal ideation to her psychologist; and that her psychologist has expressed serious concerns about Ms Rochford giving evidence in Court, stating that "[g]iving evidence via videoconferencing from Adelaide from the lawyer's offices, where she will be supported by them and by her husband, and be able to return to her home at night, will, in my opinion, be the best option for Ms Rochford's mental health in giving evidence in this trial". The respondents submitted that the Court has seen a significant number of the applicant's former patients who have clearly been traumatised by the experience of giving evidence. They noted that such trauma is not simply because of the inherent nature of cross-examination where credit is challenged, but also because of the specific characteristics of the witnesses in question and their psychological states.
3. The respondents addressed the evidence of Ms Rochford and its significance to the proceedings, which relates to the justification defence, and noted that the Court has had the benefit of having heard the applicant's response to the allegations made by Ms Rochford. The respondents submitted that unlike Ms Çalan and Mr Ladouceur, Ms Rochford can be compelled to travel to Sydney for the purposes of giving evidence. The balancing exercise for Ms Rochford therefore differs in this respect, in that if the Court declines the application, Ms Rochford will either need to attend before the Court to be cross-examined, make an application to set aside the subpoena for her attendance, or face the consequences of defying the subpoena.
4. The applicant opposed the application. He submitted that Ms Rochford makes serious allegations about the care he provided her which rest solely on her credit. The applicant criticised the medical evidence relied on by the respondents, noting that the opinion expressed by Ms Rochford's psychologist is that the witness is likely to find the cross-examination stressful, perhaps to a higher degree than other witnesses. It was submitted that that does not provide a sound basis to grant the application. The applicant also submitted that cross-examination is an inherently stressful process. The applicant accepted that giving evidence via AVL may be less stressful but submitted that is not a proper basis to make an AVL order. He noted the authorities indicate that the more "relaxed" nature of giving evidence via AVL is part of the problem, insofar as credit is in issue.

1. The medical evidence is that being cross-examined could cause Ms Rochford increased mental, emotional and psychological harm which would be exacerbated if she were required to give evidence in person in Sydney, away from her support network in South Australia. In my view, the evidence demonstrates that the effect of giving evidence on Ms Rochford far surpasses the feelings of stress one might expect lay witnesses to ordinarily experience during cross-examination. I am satisfied that Ms Rochford's wellbeing will be significantly harmed should she be called to give evidence in person, noting she will be compellable to do so if the application is declined.
2. In respect to the applicant's submission regarding the more "relaxed" nature of giving evidence via AVL, I note that Ms Rochford is to give evidence in a lawyer's office, in the presence of lawyers. Accepting this does not emulate the solemnity of a courtroom environment, I considered that Ms Rochford will, if the application is declined, nevertheless give evidence in an environment which is both formal and foreign such that the gravity of giving evidence will not be lost.
3. Balancing the relevant considerations, I was persuaded that it is in the interests of the administration of justice that an order be made pursuant to s 47A of the FCA Act that Ms Rochford give evidence by AVL.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham.