MARTIN MADDEN, SCOTT DAVID HARRY LANGDON and RICHARD SCOTT TUCKER in their capacity as joint and several receivers and managers of MIRABELA INVESTMENTS PTY LTD (In liq) (Receivers and Managers Appointed) [2020] WASC 174 (25 May 2020)

1. The plaintiffs opposed these orders. They said the examination should take place in Perth. Mr Milbourne filed an affidavit sworn 24 April 2020 in support of his application. He also relied on two affidavits of Timothy Patrick Russell, the first sworn 23 April 2020, the second sworn 29 April 2020. Mr Russell is Mr Milbourne's solicitor. The plaintiffs relied on an affidavit of Melissa Marydale Ferreira sworn 28 April 2020. Both parties filed submissions.
2. In summary, the position was this. Mr Milbourne said that due to concerns about his health and given the present pandemic, the examination should take place by video link with him in Brisbane and counsel for the plaintiffs in Perth. The plaintiffs said there was no reason why Mr Milbourne could not travel to Perth. They said having Mr Milbourne in Perth and having him examined by counsel in the courtroom was a far better option and liable to produce a more compelling examination. They also referred to practical and technical difficulties which I will refer to below. In any event the plaintiffs said, given the late notice of the application, the examinations should be adjourned.
3. It seemed to me impractical to make a decision in the short time available, given the date of the filing of Mr Milbourne's motion and the date set for the examination. Accordingly, I ordered the examination be adjourned. These reasons are not so much concerned with why the examination was adjourned; rather they deal with the way in which the examination ought take place in the future. In other words, they deal with the question of whether or not in the circumstances of this case, examination by video link is appropriate.
4. Before dealing with the merits of the application it is appropriate to consider the jurisdiction to make the order sought by Mr Milbourne. The motion makes reference to s 596F(1). Presumably reliance is placed on s 596F(1)(b). That allows the court at any time to make 'a direction about the procedure to be followed at an examination'. Perhaps that subsection is wide enough to cover an order that deals with examination via video link. The plaintiffs did not suggest otherwise. Leaving to one side s 596F(1)(b) there is nothing else in s 596F(1) that would allow for an order to be made for examination by video link. For the purposes of this application I will assume, without deciding, that a direction can be made under s 596F(1).
5. Reference is then made to s 121 of the Evidence Act 1906 (WA). That section is in the following terms:
   1. WA court may take evidence or receive submission by video link or audio link

(1) Subject to this section, a WA court may, on its own initiative or on the application of a party to a proceeding in or before the court, direct that in that proceeding evidence be taken or a submission be received by video link or audio link from a person at a place, whether in or outside this State, that is outside the courtroom or other place where the court is sitting.

(2) The court shall not make such a direction unless satisfied the video link or audio link is available or can reasonably be made available.

(2a) The court shall not make such a direction if satisfied the direction is not in the interests of justice.

(3) For the purposes of taking evidence or receiving a submission by video link or audio link from a place in this State in accordance with such a direction, the place shall be taken to be part of the court.

(4) For the purposes of taking evidence or receiving a submission by video link or audio link from a place in a participating jurisdiction, the court may exercise in that place any of its powers that the court is permitted, under the law of the jurisdiction, to exercise in that place.

1. There are then two requirements which must be satisfied if an order is to be made. First, a video link must be available. That requirement is expressed in broad terms. It does not mean any video link is infallible - that is to say that when using a video link there will not, from time to time, be technical difficulties. Of course the technical difficulties may be so significant as to make a video link practically impossible. But there is no suggestion that will be the case here.
2. Subsection (2) does not say anything about the difficulties of, or the limitations of, a video link. Experience suggests there are real practical difficulties with conducting a cross‑examination by video link. Nothing can replace the immediacy of an interaction between counsel and witness. Then there are the practical difficulties - documents counsel might refer to have to be accessed in the remote location and handed to the witness. That requires an agent of (in this case) the plaintiffs to be present in Brisbane. There will inevitably be delays in providing the witness with the relevant documents. All of these matters may be relevant to the question of whether or not it is in the interests of justice to make an order. But they are not relevant to subsection (2). Based upon the evidence I am satisfied that a video link is available or can reasonably be made available.
3. That then leads to the question of whether or not it is in the interests of justice to allow examination by video link. Mr Milbourne's prime submission is that given the state of his health and the present pandemic, requiring him to travel from Brisbane to Perth is inappropriate. At pars 3 through to 5 of his affidavit Mr Milbourne gives some brief details of his present state of health. It seems he suffers from a mild form of cold induced asthma. Be that as it may, there is nothing in the evidence to suggest that a brief visit to Perth - and it is reasonable to expect the trip would not take more than four days - would complicate his condition to any extent. But the fact is he does suffer from asthma and, in the present circumstances, that might be regarded as a risk factor.
4. Appearing as attachment WRM 1 to Mr Milbourne's affidavit is a medical report of Dr Jomana Montes. Dr Montes is a general practitioner. Her report reads as follows:

Walter has been a patient at my practice since 2012. I understand that travel to Perth has been requested for a court attendance. I have concerns about this in the context of our current Covid-19 pandemic and due to his medical history. He is also under surveillance/investigation due to recent symptoms and significant blood test abnormalities.

I recommend that he not travel for the foreseeable future and that he access video conferencing or teleconferencing options instead. Any public transport, use of hotels, public buildings and facilities for non‑essential services should be avoided.

1. This report does not suggest Mr Milbourne ought not travel because of risks related to his asthma. It would seem the advice is based on 'significant blood test abnormalities'. No detail is given as to what these abnormalities may be. Nor is there any explanation as to how these abnormalities might put Mr Milbourne at risk in relation to the present pandemic. That said, the medical advice is unequivocal - Mr Milbourne should not travel to Perth for the examination.
2. In written submissions the solicitors for the plaintiffs make a number of important points. First, they note the application for examination by video link is made late in the day. Section 596F(1) allows a court to make directions at any time. But it is clear that if directions are to be made, an application should be made as soon as possible. Where a party seeks to discharge an examination summons they are required under r 11.5(2) of the Supreme Court (Corporations) Rules 2004 (WA) to bring the application within three days of the service of the summons. That rule emphasises the need for an examinee to move quickly. The court file does not disclose the date upon which Mr Milbourne was served. However, consent orders in relation to the timetable of the examination were made by Registrar Whitbread on 5 December 2019. The summons themselves were filed on 24 October 2019. There is no explanation provided by Mr Milbourne as to why it took so long to make the present application and why it was made so late in the day. The lateness of the application is a factor against refusing the orders sought by Mr Milbourne.
3. The plaintiffs' solicitors also highlight the difficulties associated with cross‑examination by video link. I have referred to these above. In support of their submissions, the plaintiffs' solicitors rely on the decision of Austin J in Australian Securities and Investments Commission v Rich [2004] NSWSC 467; (2004) 49 ACSR 578 [22]. In that case his Honour held that if a court can anticipate that cross‑examination of the witness will be lengthy and complex, and that credit of the witness will be challenged, that combination of factors is likely to persuade the court against audio visual evidence unless there is good reason for choosing it.
4. While Austin J's decision has weight, it must be borne in mind that decision is now some 16 years old. Times have moved on. Technology has improved and solicitors and counsel have become more accustomed to the use of video links. While doubtless the principles set out by his Honour still hold good, they need to be considered in the light of current conditions.
5. In the end it is the medical evidence which seems to me to be compelling. Perhaps it would not be so compelling were the nation not in the grip of a pandemic. True it is that conditions seem to be easing and that if Mr Milbourne were to travel to Perth he would doubtless be offered every possible protection to ensure he was not affected by the virus. But the fact remains there is a risk. If Mr Milbourne were a healthy individual, albeit he suffered from occasional asthma, I would have been inclined to order he attend the hearing in person. But in the light of the clear, if concise, medical evidence it seems to me to order his attendance would be inappropriate.
6. Accordingly I am prepared to make an order in terms of par 1 and to facilitate the making of that order an order in terms of par 2 of the motion. However, my preliminary view is that Mr Milbourne is not entitled to his costs. In fact, given the application was brought so late it may be the plaintiffs would be entitled to their costs and the costs thrown away by reason of these orders. That said the costs orders have not been the subject of submissions by either party and I will give both the plaintiffs and Mr Milbourne the chance to make written submissions on the question. Those submissions should be made within seven days of the date of publication of these reasons.
7. On that basis the orders will be as follows:

(1) Pursuant to s 596F(1) of the Corporations Act 2001 (Cth) and s 121 of the Evidence Act 1906 (WA) the examination of Walter Robertson Milbourne Junior take place by video link to the examinee in Brisbane on a date to be fixed.

(2) To the extent necessary an abridgement of time for the service of this notice of motion be granted.

(3) Within seven (7) days of the publication of these reasons both parties provide submissions as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.