Dey v Industrial Relations Secretary on behalf of the Department of Communities and Justice

Conduct of the Application and Submissions of the Parties

1. On 28 March 2023 the Applicant sent to the Commission via email, a four-page document, dated that same day and headed 'Outline of Respondent's Opening Submission' which set out the Applicant's (the Respondent on the motion) arguments against an order permitting Ms Carl to give evidence by AVL. In the email the Applicant noted that the document was due to be filed that day. In fact, the direction I had made, on 22 March 2023, following the filing of the notice of motion and affidavit in support, was for the Applicant to file and serve any evidence she wished to rely on in opposition to the Respondent's application by Friday 24 March 2023. No direction was made regarding the filing and service of submissions. Ms Dey did not file any evidence by 24 March 2023 and did not rely on any evidence of her own in opposing the application.
2. When the matter was called, at 1:00 PM on 29 March 2023, Ms Dey did not appear and I ascertained that the Respondent had not been served with a copy of Mr Dey's submissions. I stood the matter down until 1:35 PM to enable Mr Taylor, who appeared for the Respondent, to be sent and then to consider the submissions. During the adjournment attempts were made by the Registry to contact Ms Dey.
3. When the matter returned at 1:35PM Ms Dey again did not appear and Mr Taylor requested further time to consider the submissions. He indicated however, that he would be in a position to proceed with the motion at 3:30PM. Accordingly, I stood the matter down for hearing at 3:30PM and I made arrangements for the Registry to inform Ms Dey of the new listing time.
4. I agreed to allow the Respondent more time to consider Ms Dey's written submission as I had read the submissions in anticipation of Ms Dey relying upon them, and in those circumstances considered that as a matter of procedural fairness Mr Taylor should be given an opportunity to respond to points made in the submissions. I note however, that had Ms Dey only made the submissions orally, as she was obviously entitled to do, Mr Taylor would have been obliged to address them 'on the fly' so to speak, so while Ms Dey's failure to serve the submissions in circumstances where they were provided to the Commission (without leave) the day before the hearing of the motion was lamentable, I do not consider that the Respondent suffered any prejudice as a result, particularly in circumstances where I allowed the Respondent additional time to consider the submissions made.
5. When the matter was called at 3:30PM Ms Dey appeared, as well as Mr Taylor.
6. Mr Taylor's submissions on behalf of the Respondent focused principally on responding to Ms Dey's written submissions, which I outline below. When I pressed him to tell me why I should make the order, he responded by saying that the application had been made at the request of Ms Carl and she had provided cogent reasons in her evidence as to why the order should be made. He also submitted that the giving of evidence by audio visual link had successfully occurred during the period when restrictions were in place due to the COVID-19 pandemic; that the Department of Communities and Justice had functioned well during COVID using AVL; and that there was therefore no reason why the order should not be made. Otherwise, Mr Taylor was unable to tell me why the dictates of justice indicated that the order sought by the Respondent should be made.
7. Ms Dey made no oral submissions, preferring to rely on her written submissions. In those submissions Ms Dey submitted that Ms Carl is required to provide crucial evidence and that it would be unfair to her if that evidence was to be given, and she was only permitted to cross examine Ms Carl, by audio visual link. The applicant submitted: "appearance by audio visual link is not an ideal replacement for in-person appearances in legal proceeding. Practice directions emanating from courts and tribunals of NSW have for the most part directed that only in exceptional circumstances are proceedings [not] to be conducted in person. Adducing of oral and documentary evidence would become limited if [Ms Carl] were to be granted leave to appear at the hearing via audio visual link. I accepted Ms Lisa Charet's request to attend via audio visual link in good faith. To have both of the respondent's witnesses who can answer questions relating to the Department's policies, procedures and investigation in this matter appear remotely would be unfair to me."
8. While the nature of Ms Carl's evidence was not explained in evidence tendered on the application, I inferred that as a "Manager Conduct and Professional Standards" for the Respondent, Ms Carl was involved in the decision to dismiss Ms Dey and that the Applicant, who has consented to another of the Respondent's witnesses giving evidence by AVL, considers that Ms Carl's evidence will be important. The Applicant was dismissed from the Respondent's employment as a senior case worker on 7 September 2022, after she was found to have engaged in misconduct. While the Applicant bears the onus of establishing that her dismissal was harsh, unreasonable or unjust, in circumstances where she was dismissed for misconduct, it will be for the Respondent to establish that the alleged misconduct in fact occurred and warranted dismissal: Tredinnick v Commissioner of Police [2016] NSWIRComm 14; Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at p 464; Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 at pp 83-84. In the circumstances I accepted that Ms Carl will be an important witness in the case.
9. I also expect, based on my experience in matters of this kind, and Ms Dey's submissions regarding the difficulties with adducing documentary evidence, that there will be documents that will need to be shown to Ms Carl during cross examination. Mr Taylor made no submission to the effect that Ms Carl was not an important witness or, moreover, that her evidence would not go to matters central to the dispute and/or would only relate to uncontested matters. Conversely, Ms Dey's submissions indicated that the substance of Ms Carl's evidence concerns matters which Ms Dey does dispute and wishes to test through cross examination.
10. The applicant also made the following written submissions arising from Ms Carl's evidence including: 1. that Ms Carl had given her address as being located in Parramatta and did not otherwise disclose the location of her home, from where she apparently works and from where she would have to travel to attend the hearing, therefore I should not accept her evidence that she will be required to travel 5 - 6 hours and stay overnight; 2. if she is required to stay overnight, there is nothing to prevent that from occurring; 3. although Ms Carl had stated that she has worked from home since March 2020 using audio visual platforms and telephone she had not provided the Commission with information as to how she would prevent technological and logistical problems from arising during the hearing by identifying 'all such requirements' in advance; 4. that it was concerning that Ms Carl apparently expected to attend her 'normal duties' on the same day of the hearing thereby "exposing herself to the possibility of unauthorised parties accessing audio feed and confidential documents which can compromise the confidentiality of the proceedings" - at the least a concern arose that "Ms Carl may have access to communicate with individuals external to the proceedings and be influenced during the hearing thereby exposing herself to legitimate claims that challenge her as a credible witness"; 5. that if Ms Carl was to give evidence by AVL it will "limit the Commissioner's ability in the circumstances to control the proceedings and to ensure a fair hearing"; and 6. Ms Carl had not stated how her attendance at the hearing would affect her ability to attend the graduation of her child, which is to be held on 11 April 2023.

Relevant Principles

1. Rule 31.3(1) of the Uniform Civil Procedure Rules 2005 (NSW), which applies to proceedings in this Commission (see Rule 1.5 and Schedule 1) provides: If the court so orders, evidence and submissions may be received by telephone, video link or other form of communication.
2. In deciding whether to make such an order I am required to achieve the overriding purpose as stated in s 56 of the Civil Procedure Act 2005 (NSW) and have regard to UCPR 2.1 and 2.3 (in particular r 2.3(l) which provides for the making of directions and orders relating "to the use of telephone or video conference facilities, video tapes, film projection, computer and other equipment and technology").
3. Section 57 of the Civil Procedure Act provides that: (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects - (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).
4. Section 58 of the Civil Procedure Act stipulates that in deciding whether to make any order or direction for the management of proceedings including any order of a procedural nature or any direction under Part 6, Division 2 (which includes s 62 which gives the Commission power to give directions as to the conduct of any hearing), the Commission must seek to act in accordance with the dictates of justice. For the purposes of determining what are the dictates of justice in a particular case the Commission must have regard to ss 56 and 57 and may have regard to matters listed in s 58(2)(b). Section 58(2)(b)(vi) refers to the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction.
5. I should also have regard to s 60 of the Civil Procedure Act, which provides: In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.
6. I am also mindful of s 162(1) of the Industrial Relations Act 1996 (NSW) which provides that the Commission may, subject to the Act, determine its own procedure, although the Act does not otherwise expressly refer to the ability to permit evidence to be received by audio visual link.
7. It is important to note that many reported decisions of NSW courts regarding the principles to apply when considering an application for evidence to be given by audio visual link concern the application of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW). That Act does not apply to proceedings before this Commission, as the Commission is not a 'NSW Court' within the definition of s 3 of that Act. Thus, while cases that have applied the provisions of that Act, or s 47A of the Federal Court of Australia Act 1976 (Cth), provide some guidance as to the relevant principles to be applied to the exercise of the discretion to permit evidence by AVL, caution must be exercised given the statutory tests applied in those cases.
8. I also consider that cases decided before the COVID-19 pandemic should be read with an eye to the time, place and context in which they were decided. Concerns regarding the use and reliability of the technology and the appropriateness of witnesses giving evidence from venues other than a courtroom, have generally diminished as a result of the collective judicial experience using the technology to conduct hearings during the currency of restrictions on public gatherings due to the pandemic.
9. It is fair to say that there has been and continues to be, broadly speaking, two distinct judicial views as to whether the physical presence of a witness is necessary and to what extent the use of AVL undermines a tribunal's ability to assess the quality and credibility of the evidence. For instance, in Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd [2001] NSWSC 651; 53 NSWLR 1, Palmer J said at [28] - [29]: "… where the matter in contest involves major issues of credit or where documentary material of some volume and complexity is likely to be deployed in Court, it is still desirable, in my opinion, to have the witness in Court for examination, unless good reasons are shown to the contrary. Good reasons to the contrary are no longer such as would, in times past, have justified the taking of overseas evidence on commission. It is not necessary to show that an overseas witness is unable to attend Court to give evidence because of ill health, impecuniosity or for other reasons making attendance impossible. It is always a balancing exercise as to whether the convenience of the witness in not coming to this country to give evidence is outweighed by considerations of fairness to the opposite party in the manner in which the trial will be conducted. In my view, until the rules of Court are amended expressly to provide otherwise, it should be assumed that an overseas witness required for cross examination in a trial will attend the Court in person to give evidence and that evidence by video link will be allowed only upon application supported by evidence showing a good reason for the witness's non-attendance."
10. On the other hand, there are other decisions, including decisions of the Industrial Court of New South Wales, which support the view that audio visual evidence is equivalent to ordinary testimony given in court: see eg Studniberg v J P Morgan Australia Ltd (1998) 84 IR 86 (Schmidt J); McKirdy v EDS (Australia) Pty Limited [2006] NSWIRComm 219 (Backman J) (both decisions concerning the operation of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW)).
11. Austin J in ASIC v Rich [2004] NSWSC 467; 22 ACLC 1125 is often cited as authority for the 'middle ground approach' which considers the suitability of the proposed audio-visual evidence in light of the particular circumstances of each case. At [19], after noting the dichotomy observed in the cases, Austin J listed some of the circumstance that the cases have taken into account: "Apart from dealing with obvious practical matters such as comparative costs and the difficulty created by differences in time zones, the cases touch upon some recurring themes: the appropriateness of audiovisual facilities for centrally important evidence, the assessment of credit where evidence is given by audiovisual link, difficulties raised by the use of documents for cross-examination in audiovisual evidence, technological difficulties due to lapse of time between transmission and receipt of questions and answers, and difficulties posed by the use of audiovisual facilities where the cross-examination is lengthy."
12. I am aware that a number of decisions given during the COVID-19 restrictions, particularly in the Federal Court, supported the view that there "was no great diminution in the conduct of an online hearing compared to a hearing in court": per Bromwich J in Tetley v Goldmate Group Pty Ltd [2020] FCA 913 at [16]. These cases and others were recently considered by Murphy J in Southernwood v Brambles Limited (No 2) [2022] FCA 973 who dismissed an application for evidence of two witnesses to be heard via video link from the United States. He said this at [39]: "I have no difficulty in accepting that in many cases it will be suitable for evidence to be received via video link, and it is plain that during the height of the COVID-19 pandemic courts were more inclined to grant such applications. It is unsurprising that such applications were more readily granted when one considers the context in which that occurred - the strictest mandatory public health measures ever imposed in Australia, with Australia's international and state borders being closed and travel and in-person gatherings being banned or severely restricted. During the height of the pandemic, judges of this and other courts took a more pragmatic approach to the exercise of the discretion, faced as they were with the undesirable alternative of numerous adjournments, extensive backlogs that might arise from such adjournments, and uncertainty as to the duration of the required adjournment."
13. In my view just because a 'pragmatic approach' was taken during the height of the pandemic, and glitches and issues with the use of such technology have arguably reduced by virtue of ubiquitous usage, this does not mean that there is a presumption in favour of granting an order that evidence be given by AVL whenever a request is made and some degree of inconvenience to the witness is established.
14. In my own experience as a barrister and Commissioner, there are real pitfalls when evidence is not given in person, which need to be considered as part of the balancing exercise as to what will best serve the dictates of justice. Those pitfalls, and conversely, the benefits of hearing evidence in person, were recently, and somewhat colourfully described by Lee J in Palmer v McGowan (No 2) [2022] FCA 32; 398 ALR 524 at [43], [45] - [47], in terms with which I entirely agree: [43] Not only does receiving the evidence of the witnesses in person maintain fluidity between the witness, counsel and the judge, but there is much to be said about a witness coming into the usually unfamiliar confines of a courtroom, swearing an oath or taking an affirmation in a witness box to tell the truth, and proceeding to give evidence on oath or affirmation in the physical presence of counsel and the judge. There is a solemnity about the giving of evidence, and the formalities reinforce it. … [45] In relation to many witnesses, including highly intelligent professionals, I have come to appreciate a somewhat different dynamic between the witness and the cross-examiner than is present at an orthodox hearing. Speaking generally, the witness feels an additional degree of comfort in being physically remote from the courtroom and being in their own surroundings. Incidentally, a tell-tale indication of this more "relaxed" environment is often seen by witnesses being far more casually attired than would be the case if they came into Court. This might be termed the "leisure wear" effect. Further, as much as courts seeks to reproduce the solemnity of a traditional hearing while operating online, at least in my experience, there a distinct difference in atmosphere. It is jejune to assume that exchanges (which may include confrontational exchanges) between two persons in close physical proximity to one another, is the same as exchanges that occur in the less intimate world of a video link. [46] Related to this point, is that increasingly I have felt a nagging disquiet that I may perhaps be missing something in assessing the evidence of a witness by reference to the tone of voice or non-verbal signals. As time has gone on, it is has become more evident to me that in an audio-visual feed, minor differences in emphasis or tone can be more difficult to appreciate and assess. [47] It has, of course, become common for scepticism to be expressed about the advantage that trial judges enjoy in seeing a witness give evidence. But despite these well-founded criticisms and the fact that by video a judge can observe the manner of giving evidence remotely, based on my experience in recent times, I consider I have a better prospect of understanding the subtleties and nuances of the sort of evidence to be given in the present case, if it is given in person.
15. While I am conscious that this Commission operates with less formality than Courts (see s. 163 of the Industrial Relations Act) when arbitrating a matter, the Commission is nevertheless required to ascertain the truth and act fairly and justly. I see no reason why the observations of Lee J are not equally as apposite to proceedings in this Commission, as they are to proceedings in the Federal Court of Australia.
16. Ultimately I consider that Murphy J's conclusion in Southernwood v Brambles at [44] best describes the appropriate approach to an application made pursuant to UCPR r 31.3(1) for evidence to be given by AVL, albeit that his Honour was applying the discretion given in s 47A(1) of the Federal Court Act), namely: "(a) it is for the party seeking a favourable exercise of the discretion to establish the reason for its exercise having regard to the specific facts and circumstances and the overriding consideration of ensuring that justice is done as between the parties to the proceeding; and (b) there is no presumption nor prima facie case as to the way in which the discretion is to be exercised in the absence of countervailing considerations."

Consideration

1. I accept that Ms Carl is an important witness, and the Applicant wishes to cross examine her in respect of matters related to the decision to terminate the Applicant's employment. As noted above, there is no evidence that Ms Carl is unable to attend the hearing. Rather the evidence establishes only that it will be inconvenient for her to attend and may involve some unquantified expense. Such is the experience of most witnesses. While I accept that Ms Carl will be required to drive 5 - 6 hours each way and require overnight accommodation in order to attend the hearing, there is no evidence that the incurring of such expense will be unaffordable or otherwise impose an unreasonable burden on the Respondent. I give little weight to the fact that she will not be able to attend her 'normal duties' on that day as this is a normal incident of being a witness. Attending the Commission to give evidence will not prevent Ms Carl attending her child's graduation or interrupt her leave.
2. In my view such inconvenience and expense is easily outweighed by the unfairness to the Applicant who, without the benefit of legal representation, wishes to put questions to Ms Carl regarding the circumstances of her dismissal. Such cross examination, which will inevitably include the need for the witness to be taken to various documents, will be made more difficult if it is to done by AVL. Appearing unrepresented is hard enough - conducting cross examination via AVL will only add to the difficulty. I might add that it is also more difficult for the Commission when a party is unrepresented. Lay litigants are usually unfamiliar with the rules and protocols of cross examination. If a witness is not physically in the court room, the Commission's role in ensuring fairness to all parties can be made more difficult.
3. If there were an actual impediment to Ms Carl attending the hearing the situation would be different. However, in that event I would also wish to be satisfied that the arrangements by which Ms Carl was to give evidence were suitable. Aside from noting that she can "work from home without interruption" and has been using audio visual platforms for work since March 2020, I have no evidence as to the arrangements Ms Carl intends to implement in order to give evidence without interruption or influence of others.
4. In balancing the dictates of justice, and specifically, considering the matters listed in s 58(2)(b) of the Civil Procedure Act, I have taken into account, (as I am required to do by s 58(2)(b)((ii) and (iv)), the fact that Ms Dey did not serve her written submissions prior to the listing of the matter and failed to appear when the matter was initially called. While such conduct does weigh against Ms Dey, for the reasons set out in paragraph [11] above, it did not ultimately result in any significant prejudice to the Respondent and has marginal relevance to the issue I have to determine in any event, given Ms Dey is not the moving party. I have also taken into account, in Ms Dey's favour, the fact that she has consented to Ms Charet giving evidence by AVL, which is consistent with her duty under s 56(3) and indicates that her objection to Ms Carl giving evidence in the same way is properly founded on a desire to properly test controversial aspects of Ms Carl's evidence, while otherwise acting in a way which facilitates the just, quick and cheap resolution of the real issues in the proceedings.
5. Lastly, I have considered my obligations under s 60 of the Civil Procedure Act. As noted above, the Applicant was dismissed from the Respondent's employment as a senior case worker, after she was found to have engaged in misconduct. She seeks re-employment with the Respondent. Self-evidently the matter is of considerable importance to the Applicant.
6. In the absence of any evidence from the Respondent as to the cost to the Respondent of having Ms Carl attend to give evidence in person, I cannot find that the cost of having her attend would be disproportionate to the importance and complexity of the subject-matter in dispute, although I very much doubt that would be the case.
7. In my view the degree of injustice that would be suffered by the respective parties as a consequence of the proposed order (s 58(2)(b)(vi) weighs in the Applicant's favour. The Respondent had not made out a persuasive case for an order to be made for Ms Carl to give evidence by way of AVL and accordingly I dismissed the Respondent's notice of motion. Janet McDonald COMMISSIONER

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 March 2023