Goodall v Nationwide News Pty Limited [2007] FMCA 218

(4) The Respondent shall in the first instance pay the cost of the provision of the video-link in Los Angeles.

(5) The video-link in Los Angeles must be such as to allow a reasonable part of the interior of the room in which Ms Hellard is situated to be shown on screen, yet retaining sufficient proximity to depict

(6) Ms Hellard is to give evidence sitting at a plain desk or standing at a lectern.

(7) All written materials or exhibits already discovered between the parties that Ms Hellard is to be referred to in the course of her evidence must be clearly identified, and a paginated agreed bundle of documents is to be made available to the Court, the parties and Ms Hellard for the purpose of her evidence being given by video-link. The Respondent is to arrange the preparation of the agreed bundle of documents in consultation with the Applicant.

(8) At all times during the course of the video conference, the Court may terminate the video-link:

a) if it is so unsatisfactory that it is unfair to either party to continue; or

b) if the Court considers for any reason that it is unfair to either party to continue.

(9) The only persons present in the room in Los Angeles from where the video-link is transmitted (other than Ms Hellard) are to be those operating the video-link. All persons present are to be identified upon commencement of the video-link.

On 23 February 2007 the Respondent filed an interim application ("Interim Application") pursuant to s.66 of the Federal Magistrates Act 1999 (Cth) ("FM Act") seeking an order to allow a video link with

Los Angeles to allow evidence to be given by Ms Peta Hellard ("Hellard").

The Court made orders in relation to this matter when it was before the Court on 27 February 2007. At that time, the Court indicated that Reasons for Judgment would be forthcoming shortly. These are those Reasons for Judgment.

In an Amended Application and Statement of Claim filed on 29 January 2007 Travis Edward Charles Goodall ("the Applicant") claims:

"1. On 3 July 1999 the Applicants de facto wife, Barbara Wyrzkowski, at Karragullen, in the State of Western Australia, killed herself and their five children by suffocation from carbon monoxide poisoning from a car exhaust.

2. The Applicant, a bricklayer, had not money to bury his five children.

3. In order to raise the money to bury his five children the Applicant entered into an agreement with "New Idea" Magazine, Today Tonight Television presented by Monica Kos, and 6PR radio to tell his story for a fee.

(a) the Applicant signed a written agreement of which he does not have a copy;

(b) the Applicant provided some photographs of his five children from his photo album;

(c) At the time "New Idea" Magazine, and Today Tonight and 6PR radio all acknowledged that the applicant was the owner of the copyright of the photographs and that his written agreement licensed them to use the photographs once only;

(d) the Applicant signed a written agreement of which he does not have a copy;

4. Today Tonight established a fund into which payment for the licence fee would be paid together with any money donated by the public.

5. The Applicant sent the bills for the funerals for his five children to Today Tonight who paid them and distributed any surplus between two charities chosen by the Applicant.

(a) the Applicant asked that any surplus of the fund after payment for the funerals of his five children be distributed equally between Princess Margaret Hospital for Children and the Rocky Bay Society (formerly the Spastic Society for Children);

(b) the Applicant received no money at all personally from the interview with "New Idea" magazine, Today Tonight or 6PR radio.

6. The loss of his five children in such traumatic circumstances greatly affected the Applicant.

(a) the applicant had difficulty in coping with the situation;

(b) the applicant had difficulty in getting over having to identify the bodies;

(c) the applicant had difficulties after viewing the bodies after the coroner had conducted post mortems on them;

(d) the applicant had difficulty in facing workmates;

(e) further details will be provided prior to trial, if required.

7. The Applicant subsequently formed a new de facto relationship with Rachel Joy Lee and they had a son, Cruze.

8. This relationship broke up and the Applicant and his f ormer de facto were involved in Family Law access disputes.

9. In December 2005, the Applicant married Rosanne Meredith Goodall.

10. On 9 April 2006, without any notice to the Applicant the Defendant published in its Newspaper, the "Sunday Times" on its front page in what was called "A Special Investigation: Staggering Toll of Domestic Murder Revealed" photographs of his five children.

(a) the photos were the photos that the Applicant had licensed "New Idea" Magazine, Today Tonight to use once only for the fee used to bury the Applicants five children;

(b) the Defendant had no license to use the photos and no permission to do so from the Applicant.

11. On 9 April 2006 on page 8 of the "Sunday Times", Newspaper further details were given of domestic homicides and its close relationship to domestic violence."

At the risk of oversimplifying a tragic set of circumstances, the claims arise from the death of the Applicant's former de facto wife and their five children by suffocation from carbon monoxide poisoning from a car exhaust at Karragullen on 3 July 1999 in an apparent murder-suicide in which the Applicant had no involvement. Indigent, the Applicant, a bricklayer by trade, alleges that he entered into an exclusive licence arrangement with certain media organisations, but not the Respondent, to procure money to bury his children. The alleged exclusive licence arrangement allowed for a once only use of photos of the Applicant's five dead children ("the Childrens' Photos"). It is alleged that on 9 April 2006 the Respondent, in its Western Australian Sunday newspaper, the Sunday Times, published the Childrens' Photos in a manner and circumstances giving rise to the claims (which is not necessary to set out fully at this stage). The Applicant alleges that the Childrens' Photos of the five dead children were republished on 16 April 2006 in the Sunday Times.

In relation to Hellard the Amended Application and Statement of Claim alleges that:

"15. After publication on 9 April 2006 the Applicant telephoned the reporter who wrote the story, Ms Peta Hellard and left a message for her to call back.

16. On 13 April 2006 Ms Peta Hellard returned the Applicant's call.

(a) Ms Hellard admitted that no one gave her permission to publish the photographs of the Applicant's deceased children;

(b) Ms Hellard did not understand why the publication of the photos on 9 April 2006 would cause the Applicant such stress that he could not work;

(c) Ms Hellard admitted that she had received complaints by telephone about using the photos of the Applicant's children from the Applicant's niece and her father, from the Applicant's ex de facto Rachel Joy Lee, and from other people.

(d) The Applicant informed Ms Hellard that he would not give another licence to use the photos again for less than a truckload of money or one million dollars;

(e) The conversation was held on speakerphone with the Applicant's wife present.

17. On 16 April 2006 the "Sunday Times" on page 10 published an Article by Ms Peta Hellard, titled: "Jail them before the kill" referring to people who breach domestic violence orders together with a copy of the front page of the "Sunday Times" published on 9 April 2006.

(a) the Article in reproducing page 1 from the previous week cut-off the lower range of photos emphasising the photos of the Applicant's children."

Hellard is therefore likely to be a central witness in the proceedings.

John Ibbs ("Ibbs") swore an affidavit ("Ibbs Affidavit") on 23 February 2007 in support of the Interim Application. Ibbs, the Editorial Manager of the Sunday Times said that Hellard, the journalist who wrote the article the subject of the Substantive Application, is currently resident in Los Angeles: Ibbs Affidavit, para.3. Ibbs gives evidence of a refusal by the Applicant to consent to Hellard giving her evidence by video: Ibbs Affidavit, para.7. Ibbs says that if Hellard's evidence is given by way of video link it will "ameliorate the Respondent's costs of the hearing of this action.": Ibbs Affidavit, para.8, however no detail is provided concerning relevant costs.

Counsel for the Respondent indicated to the Court that Hellard would swear an affidavit, and it was therefore anticipated that the Applicant would cross-examine her. Counsel for the Respondent indicated that in the Respondent's view Hellard would not be long in cross-examination, because although her involvement was central, it appears to extend to perhaps to two telephone calls with the Applicant. In those circumstances, it was submitted that it was inconvenient and expensive for Hellard to have to come from Los Angeles to Perth, a round trip of about 3 days (a "fact" not in evidence but an assertion which the Court will assume for present purposes is correct) to give evidence for perhaps an hour. It was also submitted that the Applicant suffered no identifiable prejudice by Hellard giving evidence via video link.

Counsel for the Respondent helpfully referred the Court to ASIC v Rich [2004] NSWSC 467; particularly at para.43 per Austin J ("Rich"). Rich is referred to further below in analysing the relevant cases.

Evidence in opposition to the interim application

The Applicant did not lead evidence in opposition to the Interim Application.

Submissions in opposition to the interim application

The Applicant submitted it was "inappropriate" for Hellard to give evidence by video link. The Applicant said that her evidence would be "tarnished" if given in this way.

In the course of the Applicant's short submission the Court adverted to the fact that the Applicant was self-represented, and indicated that any difficulties arising from Hellard's evidence if it were to be given by video link were matters of which the Court was cognisant, and in relation to which the Court can and will have regard to principles established to allow courts to deal with self-represented litigants in a proper manner. In this regard, the relevant cases are referred to below.

The power of the Court to order that evidence be given by video link is specifically underpinned by provisions of the FM Act. In determining whether or not to make an order the Court must have regard to relevant specific provisions of the FM Act, but also more general provisions relating to the role of the Court, the giving of evidence and case management generally.

Section 66 of the FM Act provides the Court with discretion as to whether it directs or allows evidence to be given by video link. It provides as follows:

66 Testimony by video link or audio link

(1) The Federal Magistrates Court or a Federal Magistrate may, for the purposes of any proceeding, direct or allow testimony to be given by video link or audio link.

Note: See also section 69.

(2) The testimony must be given on oath or affirmation unless:

(a) the person giving the testimony is in a foreign country; and

(b) either:

(i) the law in force in that country does not permit the person to give testimony on oath or affirmation for the purposes of the proceeding; or

(ii) the law in force in that country would make it inconvenient for the person to give testimony on oath or affirmation for the purposes of the proceeding; and

(c) the Federal Magistrates Court or a Federal Magistrate is satisfied that it is appropriate for the testimony to be given otherwise than on oath or affirmation.

(3) If the testimony is given otherwise than on oath or affirmation, the Federal Magistrates Court or the Federal Magistrate is to give the testimony such weight as the Federal Magistrates Court or the Federal Magistrate thinks fit in the circumstances.

(4) The power conferred on the Federal Magistrates Court or a Federal Magistrate by subsection (1) may be exercised:

(a) on the application of a party to the proceedings concerned; or

(b) on the Federal Magistrates Court's own initiative or on the Federal Magistrate's own initiative, as the case may be.

(5) This section applies whether the person giving testimony is in or outside Australia, but does not apply if the person giving testimony is in New Zealand.

Note: See the Evidence and Procedure (New Zealand) Act 1994.

Section 69 of the FM Act deals with the conditions for the use of video links, in the following terms:

"(1) The Federal Magistrates Court or a Federal Magistrate must not exercise the power conferred by subsection 66(1), 67(1) or 68(1) in relation to a video link unless the Federal Magistrates Court or the Federal Magistrate is satisfied that the following conditions are met in relation to the video link:

(a) the courtroom or other place where the Federal Magistrates Court or the Federal Magistrate 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:

(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 Federal Magistrates Court or the Federal Magistrate 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 Federal Magistrates Court or the Federal Magistrate.

(2) The conditions that may be prescribed by the Rules of Court in accordance with paragraph (1)(c) include conditions relating to:

(b) the equipment, or class of equipment, used to establish the link; and

Eligible persons

(5) For the purposes of the application of this section to a particular proceeding, eligible persons are such persons as the Federal Magistrates Court or a Federal Magistrate considers should be treated as eligible persons for the purposes of that proceeding."

Section 3 of the FM Act deals with the objects of the FM Act. Section 3(2) includes in the objects of the FM Act the following:

(a) to enable the Federal Magistrates Court to operate as informally as possible in the exercise of judicial power; and

(b) to enable the Federal Magistrates Court to use streamlined procedures; and

Section 42 of the FM Act relates to the informal operation of the Court and provides as follows:

In proceedings before it, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.

Rule 1.03 of the Federal Magistrates Court Rules 2001 (Cth) ("FMC Rules") deals with the objects of the FMCA Rules, and provides as follows:

(1) The object of these Rules is to assist the just, efficient and economical resolution of proceedings.

(2) In accordance with the objects of the Act, the Rules aim to help the Federal Magistrates Court:

to encourage the use of appropriate dispute resolution procedures.

(3) The Court will apply the Rules in accordance with their objects.

(4) To assist the Court, the parties must:

consider options for primary dispute resolution as early as possible.

In s.66(1) of the FM Act the use of "may" imports a discretion as to whether the Court directs or allows the giving of evidence via video link. The discretion must be exercised having regard to the objects of the FM Act, and the FMC Rules, and to other powers and duties under the FM Act and FMC Rules, and subject to the conditions for the giving of video evidence in s.69(1) and (2) of the FM Act.

Reading together the objects of the FM Act in s.3, the mode of operation in s.42, and having regard to the objects of the FMCA Rules in r.1.03, it is apparent that the Court is intended to operate in a manner:

(a) as informal as possible in the exercise of judicial power;

(b) which is not protracted in its proceedings;

(c) which resolves proceedings justly, efficiently and economically;

(d) uses streamlined procedures; and

(e) avoids undue delay, expense and technicality.

It is in this context that the discretionary power in s.66 of the FM Act must be exercised.

23.

Rich contains a very helpful analysis of the decided cases concerning giving evidence via video link. Reference is made to the "conflicting approaches": Rich at para.43 per Austin J, those approaches being:

a) A line of cases generally in favour of the use of audio visual evidence: see Rich at para.17 per Austin J.; and

b) those which take a more cautious approach: (see Rich at para.18 per Austin J).

In Rich the Court also discussed various factors to be considered when determining whether evidence via video link ought to be taken. Those factors include:

a) centrally important evidence;

b) assessment of credit;

c) management of documents in cross examination;

d) technological difficulties; and

e) length of cross-examination: see Rich at paras. 20-43 per Austin J.

There is no suggestion in Rich that the above list is intended to be exhaustive.

In Rich the court sought to resolve the conflicting approaches as follows:

"by adopting two principal propositions. First, the court should strongly encourage the use of current-generation electronic aids to its work, provided that they are cost-effective and their reliability has been adequately established, recognising that a technological innovation which saves time and money may be acceptable even if it delivers a product not quite as good as the traditional alternative. Secondly, there will be exceptional cases where, presented with a choice between taking evidence by electronic means or using the tried and true viva voce method, the court will decide there are good grounds for proceeding by viva voce evidence. If these propositions are accepted, it is unnecessary and unhelpful to argue about whether audio visual evidence is "for practical purposes, the same" as viva voce evidence": Rich at para.43 per Austin J.

In The Queen v Goldman [2004] VSC 165 ("Goldman") Redlich J analysed the cases in a not dissimilar way to that of Austin J in Rich. In Goldman at paras.15-18, Redlich J said (some cases and all footnotes omitted):

"15. Some judges take the view that the apprehended disadvantages from the use of video links have not materialised as expected, the video link facility being utilised with great regularity and acceptance in court proceedings.

16. This view rests on the general proposition that a video link is, for practical purposes much the same as hearing evidence in court and that it does not pose a significant impediment to the assessment of a witness' demeanour. In Tetra Pak Marketing Pty Ltd v Mushashi Pty Ltd Katz J expressed the view that video link technology should be permitted in the absence of some considerable impediment telling against its use ...

17. There is another line of authority to the effect that there are well-recognised deficiencies associated with the taking of evidence by video linkage. Palmer J in Australian Medical Imaging rejected the view expressed in Tetra Pak stating that video link should only be allowed on good reason being shown for the witnesses' non-attendance. Conti J was to subsequently state in Moyette Pty Ltd v Foundation Healthcare Ltd that the balance will weigh against video link where major issues of credit or voluminous and complex documents are to be deployed.

18. Even if video link evidence has the same qualities as evidence given in court the right of a party to confront those who testify against them and to do so in the presence of the tribunal of fact should be given great weight particularly as there may be a danger that the substance and manner of a witness' testimony may differ if the witness is not required to face the party against whom they testify. Whether the interests of justice will be served by permitting a different course must be approached with this factor in mind. Other relevant considerations will include the nature and extent of the dispute over the witnesses proposed testimony, the importance of the witnesses to the issues in the case and the technology available.

In Goldman "the unusual circumstances" meant that a witness gave evidence via video link because there was "a real risk of harm to the witness" if he were to required to attend court to give evidence: Goldman at para.33 per Redlich J. Goldman was also a c criminal case and needs to be read in that context.

The Court considers that the approach adopted in Rich at para.43 per Austin J is correct. Thus, as a general rule, it ought to be the norm that an application for the evidence of a sufficiently remote witness to be taken via video link be granted, and the exception that it be refused, subject always to appropriate exercise of the Court's discretion: see also Versace v Monte [2001] FCA 1454 at para.16 per Tamberlin J. Therefore, the Court considers that the present application for the giving of Hellard's evidence via video link ought to be granted, unless a consideration of discretionary issues weighs patently against that course. It is therefore necessary to considers factors relevant to the exercise of discretion for finally determining whether to grant the Interim Application.

Hellard's evidence is important in relation to the case. That is particularly so in relation to the re-publication of the Childrens' Photos following (on the Applicant's case), advice from the Applicant that the Childrens' Photos were the subject of a licence agreement, or at least, that the Applicant "would not give another licence to use the photos" unless appropriately renumerated: Amended Application and Statement of Claim, para.16(b). However, whilst Hellard's evidence is centrally important it is likely to be brief and straightforward. In this regard the evidence of Hellard is eminently suitable to be taken by video link: see Rich at para.22 per Austin J.. This factor does not weigh against granting the Interim Application.

Hellard's evidence is likely to be challenged by the Applicant, and the Court may have to assess her credit vis a vis the Applicant. That said, it is the Court's view that the Applicant will not be unduly disadvantaged, in the context of what is likely to be a relatively brief cross-examination on a limited range of issues, by the use of video link for the giving of evidence, at least in relation to the Court's ability to assess Hellard's credibility. Again, the fact that Hellard's evidence is likely to be brief and straightforward, rather than long and complex, and that credit is unlikely to depend upon Hellard's responses to questions based on documents, together with the fact that there are very few documents, lead the Court to the view that it will not be unduly disadvantaged in assessing Hellard's credit if she gives evidence by video link: see Rich at paras. 24 -28 per Austin J. (in which case factors of the sort cited above did lead to the conclusion that evidence via video link was not appropriate in that case which involved the complex and lengthy litigation arising form the collapse of the One.Tel group of companies); B v The Dentists Disciplinary Tribunal [1994] 1 NZLR 95 at 108 per Williams J ("Dentists Disciplinary Tribunal"); ICI Australia Limited v Commissioner of Taxation (unreported, Federal Court of Australia, Ryan J, 29 May 1992) at 2 ("ICI"); Queen v Kyu Hyuk Kim [1998] VSC 215 at paras.12 & 21 per Coldrey J; McDonald v Commissioner of Taxation [2000] FCA 577 at para.22 per Finn J ("McDonald"), followed in Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 at para.19 per Katz J ("Tetra Pak").

The Court notes that in its experience in the Perth Registry that the video link facilities are such as to pose no real impediment to the proper assessment of a witnesses credibility (including issues of demeanour and nuance), at least where the evidence is likely to be brief and straightforward.

This is not a criminal case, and therefore issues associated with the right of an accused to confront a witness in person do not arise: compare Goldman. The Court has no doubt that the Applicant would prefer to have Hellard in the witness box in person in Perth, but the Court considers that the video link will afford sufficient opportunity for the Applicant to "confront" Hellard. Although the factual context is markedly different the position in principle is no different to that in Goldman where the Supreme Court of Victoria allowed evidence to be given by video link in "the unusual circumstances...where there is a real risk of harm to the witness and others in the Court's environment if he is required to attend Court": Goldman at para.33 per Redlich J, the principle being that the video link afforded sufficient opportunity to confront the witness.

This is also not a case where assessment of the demeanour of the witness is likely to be affected by the so-called "TV effect": see Dentists Disciplinary Tribunal at 108-109 per Williams J. The "TV effect" is unlikely to have any, or any significant, impact upon this Court constituted by a Federal Magistrate sitting alone: Dentists Disciplinary Tribunal at 108-109 per Williams J.

This factor does not weigh against the granting of the Interim Application.

Generally, the objection to video link evidence in this regard is that the volume of documents is such as to make proper orderly cross-examination if not impossible, then certainly very difficult: see Rich at paras. 29-32 per Austin J and cases there cited. For example, in Rich there was a six-volume plaintiff's tender bundle and twelve volumes of exhibits to the plaintiff's expert reports, with other documents to be tendered by other parties: see Rich at para.32 per Austin J. In stark contrast, this is not a document rich case. There are the two articles published in the Sunday Times, the photographs of the Childrens' Photos and very little else (including, on the Amended Application and Statement of Claim, no copy of the written licence agreement).

Document management is therefore unlikely to be an issue in relation to Hellard's cross-examination. In any event, the Court considers that the orders that it has made with respect to consultation between the parties and the provision of an agreed bundle of documents in relation to Hellard's evidence all adequately suffice to prevent document management becoming an issue at hearing. This factor does not weigh against granting the Interim Application.

The length of cross-examination is a factor to be considered, both as to the length of cross-examination of individual witnesses and the number of witnesses to be cross-examined by video: Rich at paras. 35-36 per Austin J (and the cases there cited). As a general proposition it appears that there is no significant problem with video link evidence (and for practical purposes this is usually cross-examination and re-examination in cases where the evidence in chief of the witness is usually on affidavit) for two to three hour periods of video link evidence: Tetra Pak at para.13 per Katz J; but compare McDonald where the evidence was expected to occupy three to four days: McDonald at para.22 per Finn J.

In this case, where Hellard's evidence by video link is likely to be around an hour (and almost certainly no more than two hours) and she is the only witness from whom evidence is sought to be obtained by video link, this factor does not weigh against granting the Interim Application.

Based on the Court's experience in the Perth Registry, there are unlikely to be technological difficulties affecting the flow of evidence given by Hellard. Even if there are minor difficulties these are unlikely to be such as to significantly affect Hellard's evidence: McDonald at paras. 19-21 per Finn J. In any event, the orders made by the Court afford the Applicant sufficient protection in the event that there is prejudice or unfairness (for whatever reason) in the use of video link to obtain Hellard's evidence: Dentists Disciplinary Tribunal at 109-110 per Williams J; Studniberg v JP Morgan Australia (unreported, Industrial Relations Commission of NSW in Court Session, Schmidt J 3 September 1998) at 5. ("Studniberg"). This factor does not weigh against granting the Interim Application.

As Hellard's evidence appears to be both brief and straight forward (in the sense that it is not complex), and is likely to occupy such a short period of time, the Court accepts that with a witness resident in Los Angeles the cost and convenience of bringing the witness to Perth from Los Angeles outweighs any likely benefit from Hellard's presence in Court in Perth giving evidence in person: Studniberg at 2 per Schmidt J; ICI at 2 per Ryan J. This factor does not weigh against granting the Interim Application.

There was no particular evidence of prejudice led by the Applicant if Hellard was permitted to give evidence by video link, and certainly no evidence to support the submission that it was "inappropriate" for the evidence to be given in that way, or that it would be "tarnished". To the extent that it is possible to discern much prejudice at all in the circumstances of this case, any prejudice that there is arises by reason of cost to the Respondent in bringing Hellard to Perth (although the Court does not attach too much weight to that factor in the circumstances of this case) and inconvenience to Hellard (about which there was no particular evidence).

Ultimately, it is not presently possible to discern any particular prejudice weighing in favour or against the granting of the Interim Application.

The Applicant in this case is self-represented. Pro bono counsel has assisted in the preparation of the Amended Application and Statement of Claim. The Court recognises that as a self-represented litigant the Applicant's capacity to properly present his case may (the Court puts it no higher than that) be more limited than if he were represented by Counsel, particularly in a case which involves allegations of breach of copyright, misleading and deceptive conduct, defamation and the seeking of remedies in the form of declarations and damages, including additional damages for breach of copyright and exemplary damages for defamation. However, although the issues of law to be raised may be "of some complexity": Schokker v Commissioner of Taxation (No 2) [2000] FCA 1734; (2000) 106 FCR 134 at 137 per French J; [2000] FCA 1734 at para.8 per French J; the same cannot be said of the issues of fact arising in relation to Hellard's evidence. They, as the Court has previously said, are likely to be brief and straight forward (that is, not complex). Nevertheless, a self-represented applicant might be more daunted by the use of a video link to give evidence than experienced counsel. The self-represented litigant may be at some disadvantage or prejudice in these circumstances. However, as the Court indicated to the Applicant during the course of his submissions, the Court can and will have regard to the principles established to allow courts to deal with self-represented litigants and diminish, as far as possible, any disadvantage a self-represented litigant suffers vis a vis a represented litigant: Re F:Litigants in Person Guidelines [2001] FamCA 348; (2001) 27 FamLR 517 at 544 per Nicholson CJ, Coleman and O'Ryan JJ; [2001] FamCR 348 at para.253 per Nicholson CJ; Coleman and O'Ryan JJ; Brehoi v Minister for Immigration & Multicultural Affairs [2001] FCA 931 at paras.7 per Beaumont J; Bartucciotto v Western Health Care & Ors [2007] FMCA 26 at para.36 per Lucev FM. See also Justice Ipp "Judicial Intervention in the Trial Process" (1995) 69 ALJ 365 at 370; and Justice Wilson "Expert Evidence, Self Represented Litigants and the Evidence of Children" (Adress to Queensland Industrial Relations Commission, 2 September 2005) pp. 11-15. The Court does not however do so to the extent that the presiding judicial officer will "get into ... [the self-represented litigants] corner and provide them with tactical and other advice as to the consequences of certain actions": Kousal v Tack [2002] FamCA 1152; (2002) 30 FamLR 581 at 590 per Nicholson CJ; [2002] FamCA 1152 at para.47 per Nicholson CJ.

Having regard to the principles expressed above, the fact that the Applicant is a self-represented litigant does not weigh against the granting of the Interim Application.

Case management principles are important in maintaining the proper programming and running of litigation, and the use of often too scarce public resources in so doing: see The State of Queensland v JL Holdings Pty Limited [1997] HCA 1; (1997) 189 CLR 146, and particularly at 171-172 per Kirby J ("JL Holdings"). In this Court it is clear that there is legislative fiat to proceed informally, without delay, efficiently and economically, using streamlined processes, but always justly: FM Act ss.3(2)(a)and(b) and 42, and FMC Rules r.1.03; Studniberg at 5 per Schmidt J. The requirement to proceed justly reflects the general principle that case management requirements are ultimately subordinate to the interests of justice, and the necessity to accord justice to a particular litigant or litigants: JL Holdings at 154-155 per Dawson, Gaudron and McHugh JJ and at 166 and 171-172 per Kirby J; Dentists Disciplinary Tribunal at 107 per Williams J.

In this case the hearing was set for 9 March 2007 on 4 December 2006. If Hellard were not to give evidence by video link it might be necessary to adjourn the hearing date, either in whole or part. That would be undesirable given the length of time that the matter has been set in the list, and because it is a single day case. The Court is also mindful (based on submissions by Counsel for the Respondent) that Hellard is presently prepared to give evidence voluntarily, and to give her evidence in chief by way of affidavit. Given the centrality of Hellard's evidence the court does not want to jeopardise that position by having to adjourn Hellard's evidence to another time, with the risks that that might entail.

The principles of case management do not weigh against t he granting of the Interim Application.

The orders made by the Court have built into them appropriate safeguards to ensure that the hearing of the matter proceeds fairly and without prejudice to either party: Dentists Disciplinary Tribunal at 109-110 per Williams J; Studniberg at 5 per Schmidt J.

Having regard to the general rule set out in paragraph 29 above and based on an assessment of the discretionary factors set out at paragraph 30-49 above, the Court concludes that the Interim Application for Hellard to give evidence by video link must be granted.

As indicated in paragraph 2 above, the Court made orders following the hearing on 27 February 2007.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Lucev FM