Corrigan v Commvault Systems

IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY FAIR WORK DIVISION NSD 1002 of 2010

AND: COMMVAULT SYSTEMS (AUSTRALIA) PTY LTD (ABN 13 103 972 612)

JUDGE: FLICK J DATE: 15 FEBRUARY 2011 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 6 August 2010 the Applicant, Mr Dominic Corrigan, filed a Statement of Claim alleging that the First Respondent dismissed him in contravention of s 340 of the Fair Work Act 2009 (Cth). Upon such a complaint being made, s 361 of that Act thereafter imposes what was described in submissions as a "reverse onus of proof". 2 In seeking to discharge that onus, the Respondents propose to call evidence from two witnesses presently based in New Zealand - Messrs Alexander and Cockayne. Both witnesses are required by the Applicant in the proceeding for cross-examination. These two witnesses will apparently give evidence as to the events that occurred at a social function on 24 February 2010. Notwithstanding the fact that the Applicant's contract of employment is said to have commenced on 1 March 2010, he was required to travel to New Zealand prior to that date. The Respondents contend that the Applicant engaged in "inappropriate conduct" at that social function and that such conduct formed part of the reason for his dismissal. 3 Presently before the Court is a Notice of Motion seeking a direction that the evidence of Messrs Alexander and Cockayne be taken by way of video link. 4 Section 47A(1) of the Federal Court of Australia Act 1976 (Cth) provides that the "Court or a Judge may, for the purposes of any proceeding, direct or allow testimony to be given by video link …". The ability to use videoconferencing to conduct hearings has been described by a Full Court of this Court as "a valuable tool", albeit one which "can have its limitations": Odhiambo v Minister for Immigration and Multicultural Affairs [2002] FCAFC 194 at [97], 122 FCR 29 at 48 to 49 per Black CJ, Wilcox and Moore JJ. 5 Section 47A(5) further provides, however, that s 47A "does not apply if the person giving testimony is in New Zealand". For proceedings in New Zealand, the comparable power is that conferred by s 25(1) of the Evidence and Procedure (New Zealand) Act 1994 (Cth). That section in its entirety provides as follows: Australian courts may take evidence etc. from New Zealand (1) The court may, on the application of a party to a proceeding, direct that evidence be taken or submissions made, by video link or telephone, from New Zealand. (2) The court must not make such a direction unless it is satisfied that: (a) the necessary facilities are available or can reasonably be made available; and (b) the evidence or submission can more conveniently be given or made from New Zealand. (3) The court may exercise in New Zealand, in connection with taking evidence or receiving submissions by video link or telephone, all its powers which it is permitted, under New Zealand law, to exercise in New Zealand. Section 26 should also be noted. That section provides as follows: Taking evidence by video link Evidence must not be given, and a submission must not be made, by video link unless the courtroom or other place where the court is sitting, and the place where the evidence would be given or the submission would be made, are equipped with video facilities that enable: (a) persons who are at the courtroom or other place to see and hear the person giving the evidence or making the submission; and (b) persons who are at the place where the evidence is given or the submission is made to see and hear persons at the courtroom or other place. Notwithstanding the slight difference in language as between s 47A(1) of the 1976 Act and s 25(1) of the 1994 Act, it was submitted that the discretionary power conferred by the statutory phrase "may … direct" is to be construed in the same manner in both provisions. 6 The correct construction and application of s 47A(1), however, has itself not been a matter free of difficulty. 7 There has been, at least in the past, some apparent divergence as to the use of video facilities between the Supreme Court of New South Wales and this Court. Some Supreme Court decisions suggest that the "ordinary procedure" should prevail and that a witness should attend in person unless there is some cause shown for departing from such a course: Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (Unreported, NSWSC, Giles CJ Comm D, 11 March 1997); Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd [2001] NSWSC 651, 53 NSWLR 1 per Palmer J. Some decisions in this Court suggest that the Court should more readily permit the use of the "relatively new video link technology": eg, McDonald v Commissioner of Taxation [2000] FCA 577, 44 ATR 226, (2000) ATC 4271 per Finn J at [21] to [22]; Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 per Katz J. 8 In Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd, Palmer J helpfully collated this divergence of approach as follows: [23] The competing views in the authorities as to the taking of evidence by video link to which I have referred above can probably be best illustrated by referring to the decision of Giles CJ Comm D in Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd, as contrasted with the decision of Katz J in Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd. In Sunstate Airlines Giles CJ Comm D says (at 6): "The ordinary procedure is [that a witness gives oral evidence before a judge in a courtroom] and there are sound reasons for following it unless cause to the contrary be shown. The conduct of proceedings in open court, available to public scrutiny, is of great importance. Cross-examination may be more difficult when video evidence is taken because documents have to be transmitted or produced in an unfamiliar manner, because of delay in voice transmission, or for other reasons, and the effectiveness of cross-examination as a weapon in the fight for truth should not be unduly hindered. And in many cases the Court is assisted in fact finding by observance of what is misleadingly called the demeanour of the witnesses, upon which the taking of video evidence may impact. All that said, particularly where the evidence is relatively uncontroversial, the cross-examination is not likely to be lengthy, or no real issue of credit is involved, the taking of video evidence can be beneficial to the administration of justice and consistent with justice between the parties. It may permit the Court to receive the evidence of a witness which would otherwise not have been available, it may permit the evidence to be received without causing undue inconvenience to witnesses (which should be an important matter in the administration of justice), and it is now an accepted feature of litigation - so much so that for some years the Federal Court of Australia has had in place the videoconference facilities proposed to be used in the present proceedings." [24] In Tetra Pak Marketing, Katz J says at (at [25]): "In light of the attitude taken in this Court in the five cases which I have mentioned above, as well as the attitude manifested in the Courts of New South Wales … Victoria … New Zealand … and England ... in the cases referred to by Finn J in McDonald, I find a strong current of authority in favour of permitting the relatively new video link technology to be used in the absence of some considerable impediment telling against its use in a particular case." [25] It will be seen that Giles CJ Comm D in Sunstate Airlines was of the view that cause had to be shown for departing from the "ordinary procedure" of requiring a witness to give his or her evidence in Court in person, whereas in Tetra Pak Marketing Katz J was of the view that the video link technology should be permitted in the absence of some considerable impediment telling against its use. [26] I am unable to adopt the view of Katz J in Tetra Pak Marketing. In my opinion, the considerations referred to by Giles CJ Comm D in Sunstate Airlines in support of the ordinary procedure of the Court in receiving evidence are still compelling, notwithstanding the advances in technology since the date of his Honour's judgment and notwithstanding the obviously increasing use of technology in Court proceedings since that time." In Australian Securities and Investments Commission v Rich [2004] NSWSC 467 at [17] to [18], 49 ACSR 578 at 582 to 583 Austin J also collated the two lines of authorities, one favouring the use of audio visual evidence and the other line taking a "more cautious approach". In yet a further decision of this Court it has been suggested that "a substantial case needs to be made out to warrant the Court declining to make an order for evidence to be taken by video link": Versace v Monte [2001] FCA 1454 at [16] per Tamberlin J. 9 Whatever may be the real difference in the ultimate result as to the application of each of these two approaches to the facts in an individual case may be open to question. 10 If attention is presently confined to the discretion conferred by s 47A(1), that is a statutory power the ambit of which must necessarily be determined by reference to the terms in which the discretion is conferred by the Legislature and by reference to the objects and purposes of the Federal Court of Australia Act and the Federal Court Rules. In that context, s 47(1) provides that in "a civil proceeding … testimony shall be given by affidavit or as otherwise directed or allowed by the Court or a Judge" and Order 14 r 9 of the Federal Court Rules provides that a "party may require the attendance for cross-examination of a person making an affidavit." That "attendance" is normally "attendance" in Court: cf. Sheahan v Joye (1995) 57 FCR 389 at 392 to 394 per Branson J. Normally, it has been said, "judicial power should be exercised in the presence of the parties": Sockhill v Deputy Commissioner of Taxation [2000] FCA 1208 at [11], 178 ALR 113 at 116 to 117 per Dowsett J. In the absence of a direction made pursuant to s 47A(1), a deponent to an affidavit is normally required to attend in Court for cross-examination. The statutory context also now includes s 37M, including the objective of resolving a proceeding "as quickly, inexpensively and efficiently as possible". 11 As with other discretionary powers conferred by the Federal Court of Australia Act, the terms in which the discretion in s 47A(1) is conferred are unqualified. And it is, with respect, considered to be an unnecessary gloss upon the exercise of that discretion to require that there be (for example) "some considerable impediment telling against its use" or "a substantial case [for] declining to make an order for evidence to be taken by video link". 12 As with any exercise of discretion, reason for the exercise of the discretion must be made out by the party seeking a favourable exercise of the discretion. Any such reason 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. The discretionary power conferred by s 47A(1) is to be exercised to facilitate the taking of evidence in each proceeding in an orderly and efficient manner and in a manner which is as inexpensive as possible. In some cases a direction pursuant to s 47A(1) may indeed secure evidence that may otherwise be unavailable to one or other of the parties (and the Court) by reason of the inability of a witness to attend in Court, either because of cost constraints or illness. 13 Instances can be provided where, in the exercise of the discretion conferred by s 47A(1), evidence has been permitted to be given by way of video link: eg, Reinsurance Australia Corporation Ltd v HIH Casualty & General Insurance Ltd (in liq) [2002] FCA 1549. In Sheldon & Hammond Pty Ltd v Metrokane Inc [2002] FCA 1561, Conti J permitted evidence to be given by way of video link where a witness was too ill to travel to Sydney. Instances can also be cited where there has emerged a reason for requiring a witness to attend in court in person. In Dorajay Pty Ltd v Aristocrat Leisure Ltd [2007] FCA 1502, for example, leave was refused in circumstances where the estimated cross-examination was lengthy. In Australian Competition and Consumer Commission v StonesOnline International Inc [2009] FCA 717, leave was also refused where the use of a video link facility was opposed and where there was (inter alia) anticipated difficulty in cross-examining by way of video link. Similarly, perhaps, in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306 at [78], 181 FCR 152 at 171 Buchanan J stated that he did "not share the view expressed by Katz J". 14 It is respectfully considered that such cases provide examples of the particular considerations relevant to the exercise of the discretion in each individual case. Those considerations provide but guidance as to what a judicial exercise of the discretion may have to take into account. 15 If attention is focussed upon the statutory provision of present relevance, namely s 25(1) of the Evidence and Procedure (New Zealand) Act 1994, no submission was made that that discretionary power should be construed or applied in any manner different to s 47A(1). In addition to providing for the non-application of s 47A to persons giving testimony from New Zealand, s 47A(5) further provides, of course, that s 47A applies "whether the person giving testimony is in or outside Australia"; s 25(1) of the 1994 Act applies where evidence is sought to be "taken … by video link … from New Zealand". Section 47A(1) may be invoked where evidence is sought to be taken from a place geographically distant from where this Court may be sitting. The physical distance of New Zealand from where this Court may be sitting may (in some cases) be less distant than many places within Australia - but the geographical distance of New Zealand is but a reason or consideration to be taken into account when exercising the discretion conferred by s 25(1). 16 The ambit of the discretion conferred by s 25(1) (and s 47A(1)), it is concluded, should not be unnecessarily exercised by reference to criteria not stated in the terms of the statutory provisions themselves. Any exercise of the discretion conferred by these provisions is sufficiently constrained by the implicit requirement that the discretion be exercised judicially and not arbitrarily. 17 In the present proceeding it is considered appropriate that a direction be made that the evidence of Messrs Alexander and Cockayne to be taken by way of video link. 18 Those factors which indicate the appropriateness of such a course in the present proceeding, and which indicate that such a direction ensures that justice is done as between the parties, include the following: (a) the fact that arrangements can be readily made for videoconferencing facilities to be made available by the High Court of New Zealand in Auckland; (b) the consent of the Applicant to such a course; (c) the fact that the two witnesses are not "within the control" of the Respondents and (indeed) the Respondents have thought it prudent to seek and obtain the issue of subpoenas to secure their attendance; (d) the fact that the evidence of both witnesses has been characterised by the Respondents, without comment by the Applicant, as not being "highly controversial"; (e) the fact that such cross-examination as there is of both witnesses will require no document having to be shown to either witness and is estimated to take no more than one hour for each witness; and (f) the fact that there is not anticipated to be any substantial issue raised as to the credibility of either witness, although submissions are not unexpectedly to be made as to which of the competing accounts of the events of 24 February 2010 is to be accepted. In reaching such a conclusion it is noted that the Respondents have caused inquiries to be made of the Registry of the High Court of New Zealand in Auckland and that that Court is agreeable to making its videoconference room facilities available to this Court for the purposes of evidence being given by way of video link. Appreciation is expressed to those in the Auckland Registry for making its facilities so available. No submission was advanced that the requirements of s 26 of the 1994 Act will not be satisfied.

ORDERS 19 By consent, the Court orders that: 1. Leave is granted to the Respondents for Mr Stuart Alexander and Mr Roger Cockayne, to appear to give evidence in these proceedings via video link on 22 February 2011 from the videoconference room of the High Court of New Zealand in Auckland. 2. Leave is granted to the Respondents to issue subpoenas to Mr Stuart Alexander and Mr Roger Cockayne to attend to give evidence via video link from the videoconference room of the High Court of New Zealand in Auckland on 22 February 2011. 3. The subpoenas referred to in Order 2, together with a copy of these Orders, must be served on Mr Stuart Alexander and Mr Roger Cockayne on or before 16 February 2011. Copies of these documents may be served via electronic communication and via facsimile, as follows: Mr Stuart Alexander - Email: Stuart.Alexander@ingrammicro.co.nz and Fax: +64 9 414 0101 Mr Roger Cockayne - Email: Roger.Cockayne@revera.co.nz and Fax: +64 9 442 8601 4. The costs of the Respondents' Notice of Motion are to be the Respondents' costs in the cause. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.