Deeming v Pesutto

1. The respondent's application heard on 19 August 2024 be dismissed.
2. The respondent pay the applicant's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

O'CALLAGHAN J 1 This is an application by Mr Pesutto, the respondent in this proceeding, under s 47A(4)(a) of the Federal Court of Australia Act 1976 (Cth) (the Act) for an order pursuant to s 47A(1) that a witness he intends to call at the upcoming hearing of this proceeding be permitted to give testimony by audio-visual link (or AVL), in circumstances where the applicant, Mrs Deeming, has said through her lawyers that the witness, Dr Matt Bach, is required to attend for cross-examination. 2 The application was opposed. 3 Mrs Deeming is a member of the Victorian Parliament in the Legislative Council, and a former member of the Victorian Parliamentary Liberal Party (the party). In this proceeding, she alleges that Mr Pesutto, the leader of the party, published a media release and said things in media interviews that were defamatory of her. The media release was published following a meeting held on 19 March 2023 between the leadership team of the party and Mrs Deeming regarding the events at a rally that occurred on 18 March 2023. Dr Bach, who at that time was the Deputy Leader of the Liberal Party in the Legislative Council, attended that meeting. 4 At the hearing of the application, Dr M J Collins AM KC appeared with Ms H Jager and Mr D Dexter of counsel for Mr Pesutto. Ms S Chrysanthou SC appeared for Mrs Deeming. 5 Mr Pesutto relied on an affidavit of Mr Peter Llewellyn Bartlett sworn on 16 August 2024. Mr Bartlett is a partner of MinterEllison, solicitors for Mr Pesutto. 6 Ms Deeming relied on an affidavit of Mr Petar Strkalj affirmed on 18 August 2024. Mr Strkalj is a solicitor employed by Giles George, solicitors for Mrs Deeming. He deposed to searches that he had carried out about the availability of flights from China to Melbourne at or around the time Dr Bach is expected to testify. But there was, in the end, no issue about such matters. 7 The trial of this proceeding (and two other related proceedings, since resolved) were set down for hearing by Wheelahan J in February this year to commence on 16 September 2024, on an estimate of three weeks. The proceeding was subsequently reallocated to my docket. 8 Section 47A(1) of the Act provides that "[t]he 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". 9 Section 47A(4)(a) provides that "[t]he power conferred on the Court or a Judge by subsection (1) may be exercised: (a) on the application of a party to the proceedings …" 10 Section 47C provides: Video Link (1) The Court or a Judge must not exercise the power conferred by subsection 47A(1) … in relation to a video link unless the Court or the Judge is satisfied that the following conditions are met in relation to the video link: (a) the courtroom or other place where the Court or the Judge is sitting is equipped with facilities (for example, television monitors) that enable all eligible persons present in that courtroom or place to see and hear the person (the remote person) who is: (i) giving the testimony; or (ii) appearing; or (iii) making the submission; by way of the video link; (b) the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom or other place where the Court or the Judge is sitting; (c) such other conditions (if any) as are prescribed by the Rules of Court in relation to the video link; (d) such other conditions (if any) as are imposed by the Court or the Judge. (2) The conditions that may be prescribed by the Rules of Court in accordance with paragraph (1)(c) include conditions relating to: (a) the form of the video link; and (b) the equipment, or class of equipment, used to establish the link; and (c) the layout of cameras; and (d) the standard of transmission; and (e) the speed of transmission; and (f) the quality of communication. Audio link (3) The Court or a Judge must not exercise the power conferred by subsection 47A(1) … in relation to an audio link unless the Court or the Judge is satisfied that the following conditions are met in relation to the audio link: (a) the courtroom or other place where the Court or the Judge is sitting is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that courtroom or place to hear the person (the remote person ) who is: (i) giving the testimony; or (ii) appearing; or (iii) making the submission; by way of the audio link; (b) the place at which the remote person is located is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that place to hear each eligible person who is present in the courtroom or other place where the Court or the Judge is sitting; (c) such other conditions (if any) as are prescribed by the Rules of Court in relation to the audio link; (d) such other conditions (if any) as are imposed by the Court or the Judge. (4) The conditions that may be prescribed by the Rules of Court in accordance with paragraph (3)(c) include conditions relating to: (a) the form of the audio link; and (b) the equipment, or class of equipment, used to establish the audio link; and (c) the standard of transmission; and (d) the speed of transmission; and (e) the quality of communication. … 11 There are no prescribed rules of the type contemplated by ss 47C(1), (2) and (4), including in relation to the standard and speed of transmission and the quality of communication of the video and audio links referred to in those sub-sections. It follows that the discretion to grant an order that a witness appear via AVL under s 47A(1) is enlivened if the court is satisfied that the conditions in ss 47C(1)(a) and (b) and 47C(3)(a) and (b) are met in relation to the audio and visual links. 12 The discretionary considerations to be taken into account are to be found in the cases. 13 Each case turns on its facts, and various factors will usually need to be weighed in the balance, with none being exhaustive or prescriptive. See eg Kirby v Centro Properties Ltd [2012] FCA 60; (2012) 288 ALR 601 at 604-605 [10] (Gordon J). 14 In that case, Gordon J noted (at 604-605 [10]-[11]) that courts have taken a number of matters into account in exercising the discretion under s 47A(1) of the Act or its equivalents in other jurisdictions, including relevantly: the employment commitments of an overseas witness; whether the credibility of the witness is in issue; the importance of the witness' evidence to the case; whether the use of video link may frustrate or delay the management of documents in cross examination; and the costs involved in requiring a witness, especially a witness who is not a party, to travel to Australia to give viva voce evidence. 15 It is also well established that it is necessary for a party who is asking the court to exercise the discretion to make an order under s 47A(4)(a) to make out their case for making it, particularly if it is opposed by the other party, where the evidence is contested, the witness is to be cross-examined and questions of credit, credibility and reliability are involved. See, by way of example only, Rush v Nationwide News Pty Ltd (No 4) [2018] FCA 1558 at [50] (Wigney J). 16 As to the requirements specified in s 47C, Mr Bartlett deposed that Dr Bach could give evidence via AVL from the London office of MinterEllison, which he said would guarantee a stable internet connection; an IP address; compatibility with Microsoft Teams; private and secure conference rooms; audio-visual equipment suitable for cross-examination including television, webcam, backup speakerphone and uninterruptible power supply; and a religious text upon which an oath may be sworn. He also deposed that a MinterEllison solicitor in London could attend and ensure the logistical and technical requirements are satisfied, including access to an information technology contact within the firm that can provide further assistance if required. That evidence was not disputed. 17 Mr Bartlett gave the following evidence, upon information provided to him by Mr Dean Levitan, a solicitor at MinterEllison assisting him in this matter: Based on my understanding of the witnesses that are likely to be cross-examined in these proceedings, the likely order of the trial, and Dr Bach's availability (as set out below), I anticipate that Dr Bach will give evidence in the third week of the hearing, being the week commencing 30 September 2024. On 9 August 2024, Mr Levitan enquired with Dr Bach regarding his capacity to travel to Australia for the purpose of giving evidence in this proceeding from mid-September - early October 2024. I am informed by Mr Levitan that Dr Bach informed Mr Levitan that: (a) Dr Bach is employed as Assistant Headmaster and Head of the Lower School at Brighton College, England, where he is responsible for the pastoral care of 100 pupils - 55 of whom will be entirely new to the school when the school year commences on 28 August 2024; (b) He is a father to two children, aged 2 and 6 respectively, and shares caring responsibility with his wife who works part-time. In order to ensure their children will be taken care of, Dr Bach's wife would need to take time off from work should Dr Bach be required to attend Court in Australia in person; (c) Dr Bach's absence from the school will generate significant administrative and managerial difficulties for his employer given Dr Bach's responsibilities and role in assisting children settle into the school year, which is a significant transition period; (d) He teaches classes every day, and this year will teach two year 12 classes, one year 11 class, and one year 9 class, and that his absence for the purpose of this proceeding would have a significant deleterious impact upon approximately 80 students' learning; (e) He is scheduled to undertake a work trip to China to engage with Chinese families considering sending their children to Brighton College between 13-23 September 2024; and (f) Being required to attend in-person will cause significant inconvenience to Dr Bach, his employer, and his family. 18 None of the factual matters concerning Dr Bach to which Mr Bartlett deposed was challenged. 19 Mr Bartlett also identified the expenses that would be incurred by requiring Dr Bach's travel to and stay in Melbourne, such as airfares and hotel accommodation. 20 Mr Pesutto has caused to be filed in the proceeding two affidavits from Dr Bach, which he intends to rely on at trial. In his first affidavit, he deposes to his relationship and dealings with Mrs Deeming; how he became aware of the events of 18 March 2023 and his preliminary opinions on those matters; the events of 19 March 2023, including the meeting between the then leadership team and Mrs Deeming; and events and meetings between 20 March and 12 May 2023. 21 In his second affidavit, Dr Bach responds extensively to Mrs Deeming's account (in her affidavit) of the 19 March meeting, and to comments attributed to him by Mrs Deeming during a 27 March 2023 meeting. 22 At the hearing of this application, Dr Collins handed up a seven page aide-memoire, entitled "Points of difference in evidence of 19 March 2023 meeting", which sets out in tabular, summary form the points of difference between the evidence that Mrs Deeming proposes to give at trial and the evidence proposed to be given by Dr Bach and the other members of the leadership team. It was marked as "Exhibit MFIR1", and is attached to these reasons as Annexure A. 23 In his oral submissions, Dr Collins said that on the assumption that he overcame the technological hurdles in section 47C (about which there was no real issue): then it's a question of the interest[s] of justice, which is quintessentially an exercise of discretion, balancing the factors on each side. These seem to us to be the … key points going both ways in this matter. The first is that Dr Bach is not a party; he is a witness, which is a matter which sits on our side of the ledger. There is a dispute between us as to the extent to which his evidence is central and the extent to which he is likely to be confronted in cross-examination with questions that will require a credit assessment. We don't shy away from the fact that his credit may well be in issue, nor do we shy away from the fact that his evidence is relevant to the issues in the proceeding. But I do want to take your Honour to the pleadings and the affidavits to seek to persuade your Honour that our learned friends have over-egged the pudding, that it's - [Dr Bach's] evidence, while relevant, can't be said to be central, and certainly not likely to be dispositive. One of the things said against us is, well, in those circumstances, why call him at all. And I will explain to you why we - why Mr Pesutto wishes to call him. The final matter which we would submit likely is the dispositive matter on the evidence is that requiring Dr Bach to come to Victoria to give evidence will be disruptive not only to him and to his employment arrangements but to third parties … 24 Dr Collins continued, submitting that "the most significant matter on our side of the ledger is that": unlike most cases, this is a case where your Honour has uncontested evidence of quite significant disruption to third parties, who, of course, have got nothing to do with and no interest in this litigation, being the students whose learning will be further disrupted by Dr Bach's absence if he has to travel from London to Australia. 25 Ms Chrysanthou made the following points in response. 26 First, she submitted that Dr Bach voluntarily gave his first affidavit in May this year, at a time when he was already working at the school in England. So, it was submitted, he knew then that there was a likelihood that he would have to attend the trial in September and that he would be inconvenienced in doing so. 27 Secondly, Ms Chrysanthou submitted that despite knowing that it was likely he would have to attend the trial in Melbourne in September, it appeared that Dr Bach had not made any attempt to make arrangements to give testimony in Australia, and that the evidence indicated that Mr Pesutto's solicitors had not spoken to Dr Bach about attending in person until 9 August 2024. On that basis, she contended that an available inference was that both Dr Bach and Mr Pesutto's solicitors had assumed that he would never have to attend in person and presumed that he would be permitted to give evidence via AVL because he resides overseas. In Ms Chrysanthou's submission, that was relevant to the point about the inconvenience that would result to Dr Bach's pupils and his family because: [h]ad Dr Bach told his employer in May that he was going to have to come to Melbourne to give evidence in September, then Dr Bach's employer might have sent some other person to China for 10 days to convince Chinese families to send their children to the school in England. And then both Dr Bach's family and his students would have only been inconvenienced by the five-day trip to Melbourne, as opposed to what he's now faced with, which is his 10-day marketing trip for the school to China, perhaps in addition to another four or five days coming to Melbourne from there. 28 Thirdly, Ms Chrysanthou submitted that where: (a) a witness can come to Australia; (b) the inconvenience does not appear to be that significant; and (c) the cost is not such as to cause a significant increase in the expenditure, having regard to the cost of the trial as a whole, "the only thing that is left is, he happens to live overseas, and that plainly isn't a proper basis on its own to make the order". 29 Fourthly, Ms Chrysanthou submitted that the meeting on 19 March "is a key event in the case", including because: [t]he interactions between Mrs Deeming and the respondent, what was said, what Mr Pesutto heard, any admissions that my client is said to have made, is a key issue in the contextual truth defence. But [it] is also a key issue for honest opinion in section 29A, which as my learned friend rightly said, turn[s] on the state of mind of his client. State of mind can be determined by your Honour having regard to the information that Mr Pesutto had prior to publication. That's one way to determine his true state of mind. And on any view - and I thank my learned friends for preparing this helpful table - there's said to have been a lot of information exchanged at this meeting on 19 March which is key to whether what Mr Pesutto then went on to publish that day and on subsequent days ... And in order to make good his honest opinion defences and his reasonableness for the purposes of section 29A, your Honour will need to make findings about what information Mr Pesutto had. Now, the fact that we have five affidavits on the respondent's side which give a similar account of what happened at that meeting is something that will make the cross-examination of each of these witnesses even more important. 30 Fifthly, Ms Chrysanthou said that it is obvious from the fact that the entirety of Dr Bach's second affidavit is dedicated to disagreeing with Ms Deeming's account of the 19 March meeting, "credit will be a significant issue". 31 In my view, this is not an appropriate case to allow Dr Bach to give evidence by AVL. 32 It is readily apparent from the aide-memoire document that there is, on the face of it, a real and fundamental dispute involving issues of credit, credibility and reliability between Mrs Deeming, on the one hand, and the five members of the leadership team, on the other hand, in particular about what happened at the 19 March meeting. It is neither productive nor appropriate in an application such as this to explore the nature and extent of that dispute, beyond that identified by Mr Pesutto's counsel in the aide-memoire. 33 As Buchanan J said in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 at 171 [78]: 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 … [T]here 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 crossexaminer 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. 34 Although those observations were made 15 years ago, they remain as relevant now as they were then, and they have been adopted with approval on many occasions since. See Kirby v Centro Properties Ltd [2012] FCA 60; (2012) 288 ALR 601 at 603-604 [8] (Gordon J); Blackrock Asset Management Australia Services Limited v Waked (No 2) [2011] FCA 479 at [45]-[46] (Perram J); Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 231 FCR 531 at 536-537 [16]-[17] (Besanko J); Southernwood v Brambles Ltd (No 2) [2022] FCA 973 at [29]ff (Murphy J); Joy v UGL Operations and Maintenance Pty Ltd (No 3) [2024] FCA 279 at [64]-[66] (Feutrill J). And they apply with greater force when the credit, credibility and reliability of an important witness is sought to be challenged. 35 In those circumstances, and given that oral evidence at a trial is generally to be given directly to, and in the presence of the court, it is necessary for Mr Pesutto, in asking the court to exercise the discretion to make an order under s 47A(4)(a), to point to convincing reasons why the cross-examination of Dr Bach should be permitted to occur other than in person. 36 I accept that Dr Bach's absence for a further period of five days (further to the China trip, that is) will likely cause some disruption to his pupils at the school and will inconvenience his wife and small children. But in the scheme of things, I do not give those matters significant weight - including because Dr Bach must have known in May when he swore his first affidavit that there was a likelihood that he would have to attend the trial in September in person, that certain inconvenience would be caused to his students and family as a result, and that he would need to make arrangements accordingly. 37 The additional costs involved in having Dr Bach attend in person, though not trifling, are, as Dr Collins said, "not sheep stations" in the context of a three-week trial, where both sides are represented by senior and junior counsel and well-resourced solicitors who specialise in defamation law. 38 It follows that Mr Pesutto's application is to be dismissed, with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan.