Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd

Australian Medical Imaging Pty Limited v Marconi Medical Systems Australia (2001) 53 NSWLR 1 CASES CITED: Filipowski v Hemina Holdings [2009] NSWLEC 67 Markisic v United States of America [2006] NSWSC 839 R v Wilkie (2005) 193 FLR 291

PROSECUTOR Mr S Rushton SC with Ms S Callan SOLICITORS Department of Climate Change LEGAL REPRESENTATIVES:

DEFENDANT Mr J Ireland QC with Mr J Maston SOLICITORS Colin Biggers Paisley

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

50040 of 2009 Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd

HER HONOUR : 1 This is an urgent oral application for an order that the evidence of a witness for the prosecution, who has been issued with a subpoena to attend and appear, Mr Dave Humphreys, be received by video link by this Court. The Court may permit evidence to be received in this way pursuant to Pt 31 r 31.3 of the Uniform Civil Procedure Rules 2005. 2 No notice of motion has been filed and no evidence in affidavit form was served in support of the application by Mr Humpreys, however, given the urgency of the application I dispensed with any need for him to do so. There was no opposition from either the prosecution or defendant to this course of action. 3 In support of the application, Mr Humphreys has put before the Court various correspondence between him and the Department of Environment and Climate Change ("DECC") concerning his unavailability. Likewise, Mr Rushton SC, for the prosecution, sought to put correspondence before the Court in support of the submissions he made. 4 The application was opposed by the defendant and was not consented to by the prosecutor. 5 Mr Humphreys was the Project Manager of Environmental Land Clearing Pty Ltd, the company engaged, it is alleged, by the defendant to clear the property thereby giving rise to the offence with which the defendant has been charged pursuant to s 12 of the Native Vegetation Act 2003. He is, as both the prosecutor and the defendant agree, a key witness in the prosecution. 6 The reasons advanced by Mr Humphreys for seeking that his evidence be given by video link are because he has booked and paid for a holiday to the United Kingdom with his family departing on 22 May 2009, that is to say, tomorrow. Proceedings are due to commence on 25 May 2009 with an estimate of four weeks. Mr Humphreys will not return from holidays until 15 June 2009, by which time the prosecution will have closed its case. Whilst in the United Kingdom he will, on the weekend commencing 30 May 2009, be attending his mother's 75th birthday and his sister's 50th birthday. 7 The evidence of the notification of Mr Humphreys of the hearing dates and therefore of his requirement to give evidence is in dispute. Having read the evidence put before the Court and the cross examination of Mr Humphreys, it is as follows. In February 2009 enquiries were made by officers of DECC as to Mr Humpreys' availability for a hearing in this matter. Mr Humphreys' response was that he would be overseas in June 2009 and that he had work commitments from April to September 2009. Critically, Mr Humphreys did not say that he was planning a holiday commencing in late May 2009. On 12 February 2009 the matter was then set down for four weeks commencing 25 May 2009. When the matter was set down DECC, through oversight, neglected to tell Mr Humphreys the dates of the hearing. Rather, the first that Mr Humphreys heard of the hearing dates was on 9 May 2009, when a subpoena was served on him by DECC requiring him to attend Court. 8 Whilst I accept that Mr Humphreys told DECC that he had difficulty with these dates and that he sought to engage in communications with DECC regarding this difficulty, including instructing a solicitor to send correspondence on his behalf, he nevertheless did not take any steps to have the subpoena set aside or to make some other appropriate application in relation to his issue with the hearing dates, that is, until today. 9 I accept as valid Mr Humphreys' reasons for wishing to take the benefit of the holiday that he has booked and paid for and I certainly accept his reasons for wishing to travel with his family, who are due to depart tomorrow. Travelling overseas by airplane and doing a long haul trip with three young children, even with a paid companion such as that arranged by Mr Humphreys, is not easy. However, DECC has agreed to reimburse both Mr Humphreys and his family for the reasonable cost incurred in having to change or cancel his flights and any other bookings that he has made. While Mr Humphreys expressed his doubts as to the genuineness of this offer, absent any proof to the contrary I accept it as a genuine offer and it weighs heavily in my consideration of this application. 10 As already stated, the application for receiving the evidence by video link is opposed by the defendant because, amongst other things:

(a) Mr Humphreys is a key witness who is required for cross examination;

(b) the vagaries of video evidence are such that very real technical difficulties often arise in its execution;

(c) there are also difficulties in relation to different time zones. Mr Humphreys would be, if the Court were to accede to his application, in England and this would necessitate extra work and arrangements having to be made in relation to court reporting and court officers, in addition to the inconvenience caused to counsel and the parties; and

(d) there will be documentary evidence that Mr Humphreys will be required to be cross examined on by way of plans and other material. A task made unsatisfactory if done by way of video link. 11 The relevant principle in relation to an application such as this is that generally an order will be made to hear evidence by video link if it is in the interests of justice to do so, or if it is appropriate and not unfair to any party (see generally the case of Markisic v United States of America [2006] NSWSC 839). Factors relevant to the exercise of the Court's discretion in this regard include:

(b) the extent to which it is likely to be disputed;

(c) the costs of hearing the evidence by way of video link;

(d) the nature of any cross examination. For example, the extent to which it will involve documents;

(e) whether the evidence will be given in a different time zone;

(g) the duration of any proposed evidence to be given. 12 With regards to the latter, I note that both the prosecutor and the defendant indicated to the Court that Mr Humphreys will be the first witness to be called and that in all likelihood his evidence will be concluded by some time on Tuesday. 13 The moving party in this case, Mr Humphreys, bears the onus of demonstrating the appropriateness of the making of such an order (see Australian Medical Imaging Pty Limited v Marconi Medical Systems Australia (2001) 53 NSWLR 1). 14 Generally, there is considerable desirability in a witness physically being present at the hearing. Otherwise, there is a risk that the Court's ability to assess the evidence given by that witness is compromised. This is particularly so in a criminal trial where the defendant may be facing serious penalties if found guilty. In this regard I note and endorse the comments made by Lloyd J in the recent decision of Filipowski v Hemina Holdings [2009] NSWLEC 67 at [7] where his Honour said, "[t]he relevant principles are that in general, it must be assumed that overseas witnesses required for cross-examination in a trial will attend the court in person to give evidence". While Filipowski was a case dealing with an overseas witness, his Honour's comments are nevertheless appropriate where, as in the present case, a local witness wishes to give his evidence overseas. His Honour then quoted from the decision R v Wilkie (2005) 193 FLR 291 where Howie J held at [10] that: There is authority that suggests that audiovisual evidence should only be allowed where good reason exists for the failure of the witness to attend the proceedings in person. His Honour expressed the view (at [9]) in Filipowski that there is opportunity for a greater degree of flexibility in civil cases than in criminal cases in relation to the use of video link evidence. 15 I accept the submission of Mr Ireland QC that the seeds of Mr Humphreys' difficulty lay in him telling the officer of DECC that he would be away in June 2009 and omitting to state that he would be away in late May 2009. 16 Further, in circumstances where DECC has agreed to reimburse Mr Humphreys' travel expenses; where there is a significant time zone difference; where the witness is important and is required for cross examination, such cross examination involving documents; where, as I understand the evidence of Mr Humphreys, he will not miss the birthdays of his sister and mother and where this is a criminal trial, then notwithstanding that I agree that DECC ought to have told Mr Humphreys of the dates of the hearing much earlier, I am compelled to conclude that his evidence should not be given by way of video link. I am not persuaded to allow the application and it should be dismissed. 17 In relation to costs, having regard to all the circumstances, I propose to make an order that the costs of today's application be costs in the cause, as a matter of fairness to the parties and to Mr Humphreys. 18 The final orders are:

(1) Mr Humphrey's application of today's date that his evidence be heard by video link from overseas is dismissed;

(2) the costs of the application are to be costs in the cause; and

(3) the Court notes that the hearing is listed for four weeks commencing 25 May 2009. **********

19/06/2009 - Case Title, Prosecutor details - Paragraph(s) coversheet

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.