REASONS FOR JUDGMENT
1 On 10 December 2013 the Applicant, the Australian Competition and Consumer Commission ("the Commission") filed an Originating Application in this Court. The Respondent to that proceeding is Pirovic Enterprises Pty Ltd ("Pirovic Enterprises").
2 In very summary form, the Commission alleges that Pirovic Enterprises has engaged in misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth). That conduct is said to arise from the marketing by Pirovic Enterprises of its eggs as "Free Range."
3 On 25 March 2014 directions were made to ready the proceeding for hearing. It was then envisaged that the hearing would be set down for two weeks commencing on 8 September 2014.
4 On 7 May 2014 the Commission filed an Interlocutory Application seeking orders that the proceeding be set down for hearing commencing on 8 September 2014; that leave be granted to file an Amended Statement of Claim; and that the evidence of its expert be given by way of video link.
5 There was no opposition to leave being granted to amend and for the setting down of the proceeding for hearing. Orders to that effect have been made. The hearing has been set down for a nine day period from 9 to 17 September 2014.
6 In issue was whether the Commission should be allowed to adduce the evidence of its expert witness by way of video link pursuant to s 47A(1) of the Federal Court of Australia Act 1976 (Cth). That sub-section provides as follows:
The Court or a Judge may, for the purposes of any proceeding, direct or allow testimony to be given by video link, audio link or other appropriate means.
Section 47C provides constraints upon the exercise of the power conferred by s 47A(1). But that section assumes no present relevance. It is the manner in which the discretionary power conferred by s 47A(1) should be exercised in the present proceeding which divides the parties.
7 The expert whom the Commission seeks to rely upon is Professor Christine Nicol. Professor Nicol is a graduate of Oxford University with a degree in Zoology. She has also completed a Doctor of Philosophy and has been a lecturer in Farm Animal Welfare at Bristol University from 1986 to 2006. She maintains that she has an expertise "on the behaviour of laying hens in free range egg production systems". Her scientific work, apparently, was instrumental in bringing about a ban by the European Community in 2012 "on conventional 'battery' cages for laying hens" and the development of "viable and humane alternative housing systems which have been embraced by British industry". Her expertise and qualifications to give potentially admissible evidence and evidence that may prove to be of considerable benefit to the Court can, for present purposes, be readily accepted.
8 The difficulty confronting the Commission, however, is that Professor Nicol has indicated that "she would not be available to give evidence in person". As explained in an affidavit sworn by a solicitor retained by the Commission, Professor Nicol is unwilling to travel to Australia to give evidence because:
she "has various teaching and other academic commitments throughout the year" and, if required to come to Australia, "it is likely that … it would be necessary for [her] to obtain a period of approximately two weeks free of all other commitments";
she has "booked her annual holiday from 13 to 21 September 2014 and would not be able to travel in the period immediately prior to that time"; and
she "finds long distance travel physically discomforting, and she would not be able to travel to Australia from the United Kingdom and then appear in court the following day or the day after that…"
9 The manner in which the discretion conferred by s 47A(1) (or a like discretion) has been exercised has been addressed on a number of occasions by both decisions of this Court and other courts.
10 Some decisions have favoured the use of "the relatively new video link technology": e.g., Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 at [25] per Katz J. See also: Versace v Monte [2001] FCA 1454 at [16] per Tamberlin J. Other decisions have favoured a contrary view and a preference for evidence to be given in person "unless cause to the contrary is shown": Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (unreported, Sup Ct, NSW, 11 March 1997) per Giles CJ. Any "tension between the two streams of authority" has been said to be readily able to be reconciled by reference to the facts of each particular case: Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306 at [76], (2009) 181 FCR 152 at 170 per Buchanan J. His Honour there reviewed the authorities (including Australian Competition and Consumer Commission v World Netsafe Pty Ltd (2002) 119 FCR 303 and Dorajay Pty Ltd v Aristocrat Leisure Ltd [2007] FCA 1502) and observed:
[77] However, with respect to those who have taken a different view, I think there is a significant difference in emphasis in the two lines of authority. One, essentially pragmatic, matter which arises from the differences of view to which I have drawn attention is where the practical onus of persuasion lies. Despite the undoubted efficiencies available in an appropriate case, the trend of authority seems to me to emphasise the need for a persuasive case to be made out to use a video link to take evidence, particularly to impose it on an unwilling cross-examining party, rather than the reverse.
[78] I share the concerns expressed by Spender J in World Netscape and by Stone J in Dorajay about the limitation on the effectiveness of video link arrangements as a means of taking oral evidence. I am particularly troubled by the prospect (or possibility) that the cross-examination of an important witness might be rendered less effective by the limitations of video link technology or the absence of the witness from the courtroom. Although the days are gone when witnesses are expected to feel any sense of intimidation as an aid to telling the truth, there is no doubt in my mind that the requirement to give evidence on oath or affirmation in the (generally) solemn atmosphere of a courtroom in the presence of a judge, and to answer questions in cross-examination in the presence also of cross-examining counsel, has at least three potential benefits. It enhances the prospect that the witness will remain conscious of the nature and solemnity of the occasion and of his or her obligations. It affords the cross-examiner some reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party. It provides the court with a more satisfactory environment in which to assess the nature, quality and reliability of responses by a witness, both to questions and to the overall situation presented by the necessity to give evidence in court. To my mind there remains, even in the modern context, a certain "chemistry" in oral interchanges in a courtroom, whether between a judge and counsel (or other representative) or between cross-examiner and witness. I would not wish too lightly to deprive a cross-examiner of that traditional forensic element in the exchange although, as the cases universally make clear, the court must now, if asked to do so, balance the interests of a cross-examining party against claimed inconvenience both in individual cases and with respect to individual witnesses. Notwithstanding the increased availability and use of video link technology, in my view, a case must be made out for the use of video link evidence if it is opposed by an affected party. I do not share the view expressed by Katz J. My own view and, I think, the weight of authority, is to the contrary.
His Honour there refused the application made pursuant to s 47A. After referring to these observations, Perram J has said that they are "powerful considerations": Blackrock Asset Management Australia Services Ltd v Waked (No 2) [2011] FCA 479 at [46]. See also: Kirby v Centro Properties Ltd [2012] FCA 60 at [9], (2012) 288 ALR 601 at 604 per Gordon J; Stuke v Rost Capital Group Pty Ltd [2012] FCA 1097 at [32], (2012) 207 FCR 86 at 93 per Katzmann J. Cases may undoubtedly be cited, however, where cross-examination by way of video link has been allowed: e.g., Reinsurance Australia Corporation Ltd v HIH Casualty & General Insurance Ltd (in liq) [2002] FCA 1549; Sheldon & Hammond Pty Ltd v Metrokane Inc [2002] FCA 1561; Corrigan v Commvault Systems (Australia) Pty Ltd [2011] FCA 107, (2011) 192 FCR 71. Cases can equally be cited in which applications to give evidence by way of video link have been refused: e.g., Australian Competition & Consumer Commission v Storesonline International Inc [2009] FCA 717; Blackrock Asset Management Australia Services Ltd v Waked (No 2) [2011] FCA 479 at [46]; SK Foods LP v SK Foods Australia Pty Limited (in liq) (No 3) [2013] FCA 526 at [89], (2013) 214 FCR 543 at 571 to 572.
11 The exercise of the discretion conferred by s 47A(1) must unquestionably be guided by the facts and circumstances of the individual case in which permission is sought to adduce evidence by way of video link. It would be unwise, if not impossible, to attempt any exhaustive list of considerations relevant to the exercise of discretion. Courts have, accordingly, resisted any temptation to attempt to do so: e.g., Australian Securities and Investments Commission v Rich [2004] NSWSC 467 at [20] to [39], (2004) 49 ACSR 578 at 583 and 587 per Austin J; Kirby v Centro Properties Ltd [2012] FCA 60 at [10], (2012) 288 ALR 601 at 604 to 605 per Gordon J. Subject to that necessary qualification, considerations which may assume relevance would include:
the extent to which the proposed witness seeks to give evidence of facts relevant to the dispute as opposed to opinions founded upon, or largely founded upon, agreed facts or assumptions;
whether the parties are in agreement as to the utility in allowing evidence to be given by way of video link;
whether the proposed evidence is centrally relevant to the issues to be resolved or more tangential to those matters of real dispute;
the extent to which any cross-examination may be inhibited by the absence of the witness being present;
the relevance of the evidence the subject of any cross-examination - the more limited the cross-examination and the more questionable the relevance of the evidence the more limited may be the prejudice to the cross-examiner;
the reasons proffered by the witness as to the inability to come to Australia; and
the practical impediments that a refusal to allow cross-examination to proceed by way of video link upon the ability of a party to present its case.
Considerations in any particular case could also include:
factors peculiar to the proposed witness, including ill-health or an inability to freely travel to and depart from Australia; and
the extent to which the Court itself may consider that it would be assisted by evidence being given in person.
The overriding consideration must, however, forever remain what is considered by the Court to be in the best interests in the administration of justice, including the need to ensure that justice is done as between the parties.
12 In the circumstances of the present case it is considered that the Commission should not be allowed to call the evidence of Professor Nicol by way of video link. That conclusion has been reached for a number of reasons. Placed to one side are any considerations founded upon potential issues of credit. It has been assumed that no question as to the credit of Professor Nicol would arise.
13 First, although the expertise and qualifications of Professor Nicol may presently be accepted, any inability on the part of the Commission to rely on her evidence does not deny to the Commission the opportunity to call evidence from other appropriately qualified experts. Although Professor Nicol may be eminent in her field, it was not suggested by Senior Counsel for the Commission that it could not call evidence from another expert.
14 Second, it is presently far from certain whether Professor Nicol would be giving evidence of contested facts or merely opinion evidence founded upon assumed facts. Although the Commission has invited Professor Nicol to assume certain facts, it is far from certain whether any cross-examination of any report would be confined to those assumed facts. Indeed, the Amended Statement of Claim does not provide any certain factual framework within which the Court will ultimately be called upon to form a conclusion as to whether conduct is misleading or deceptive.
15 Third, both the Respondent and this Court are presently in the position where there is not available for consideration either any report from Professor Nicol or any draft of such a report. The position of the Commission - in seeking to achieve certainty before time and money are expended in obtaining a report from an expert who is unwilling to come to Australia and unable to give evidence by way of video link - is readily understandable. But the absence of any degree of certainty as to the boundaries of the evidence proposed to be given by Professor Nicol inevitably places Senior Counsel for Pirovic Enterprises in the position where he simply can make no informed judgment as to whether there will be any cross-examination at all or the nature and extent of any cross-examination. It would appear, at this stage, that the evidence of Professor Nicol could assume central importance to the factual and legal issues to be resolved. If that be the case, the reluctance of Senior Counsel for Pirovic Enterprises to consent to a course whereby he will be manacled by an inability to cross-examine in person a principal witness in the case being mounted against his client is equally readily understandable. The Court, similarly, is placed in the position where it is required to exercise a discretionary power by reference to facts which are largely unknown at present.
16 Fourth, none of the reasons advanced on behalf of Professor Nicol, with respect, are persuasive. Thus, for example, in April 2014 she was told of the proposed hearing dates in September 2014 but she has provided no explanation as to what are in fact her "various teaching and other academic commitments" at that particular point of time as opposed to unspecified commitments "throughout the year". Business and other professional commitments of a witness may be taken into account: Kirby v Centro Properties Ltd [2012] FCA 60 at [10], (2012) 288 ALR 601 at 604 per Gordon J; Stuke v Rost Capital Group Pty Ltd [2012] FCA 1097 at [37], (2012) 207 FCR 86 at 94 per Katzmann J. But commitments which are not identified remain in the realm of speculation. Moreover, some people, including experts, may look forward to a trip to Australia; others may view such a prospect with a degree of trepidation. Professor Nicol, it would appear, falls into the latter category. But why she would need "to obtain a period of approximately two weeks free of all other commitments" is open to question. And any interference with her "annual holiday" can readily be accommodated by arranging a time for her to come to Australia at a time which does not interfere with her existing commitments. An available and mutually convenient date for her cross-examination could, for example, be arranged after she returns from her "annual holiday" and shortly after the end of the hearing otherwise scheduled to finish on 17 September 2014. Presumably any informed judgment as to her cross-examination could only be made after the hearing had otherwise concluded and the ambit of any factual dispute been explored. Any cross-examination in advance of the hearing, it could well be expected, would be less than satisfactory from the Respondent's perspective.
17 Fifth, the choice of the expert to be called by the Commission was always - and even now remains - within the sole control of the Commission. Professor Nicol was apparently contacted in early December 2013 and inquiries were then made as to "her willingness to act as an expert in these proceedings". No mention was then expressly made as to her "willingness" to give evidence in Australia. It was only in April 2014 that Professor Nicol "indicated … that … she would not be available to give evidence in person…". Separate from any understandable desire on the part of the Commission to retain the services of Professor Nicol is its forensic judgment in seeking to secure the services of an expert without making inquiries at the outset as to the expert's willingness to attend to give evidence in Australia. No such inquiry was apparently made in December 2013. Any disruption to the preparation of the Commission's case for hearing by the recently-emerging unwillingness of Professor Nicol to come to Australia - and any resultant necessity to now seek an alternate expert - is, with respect, a matter for which it must bear responsibility. The Commission has known since March 2014 the likely date for hearing. And its present Interlocutory Application sought an order that hearing dates in September 2014 be fixed. That order was not sought conditional upon approval being given for evidence to be called by way of video link. The steps the Commission now takes to ensure its ability to meet a hearing date which was both foreshadowed in March 2014 and which has been now fixed with its consent remain a matter for the Commission alone to determine. A suggestion made by Senior Counsel for the Commission in oral submissions that the September 2014 hearing dates may be in jeopardy if evidence cannot be given by way of video link is inconsistent with the manner in which the case has been readied for hearing and the Commission's consent to those hearing dates being fixed.