McKirdy v EDS

Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd (2001) 53 NSWLR 1 Australian Securities and Investments Commission v John David Rich and Ors [2004] NSWSC 467 B v Dentists Disciplinary Tribunal (1994) 1 NZLR 95 Bayer AG v Minister for Health of the Commonwealth of Australia (1988) 13 IPR 225 CASES CITED: Commissioner of Taxation v Grbich (1993) AAR 74 Garcia v Amerindo Investment Advisors Ltd (1991) 1 WLR 1140 Henderson v SBS Realisation Ltd (unreported CA(UK), 13 April 1992) Laporte Group Australia Ltd v Vatselias (SC(NSW), Young J, No 5679/90, 25 November 1991, unreported) Park v Citibank Savings Ltd (1993) 31 NSWLR 219 Studniberg v J P Morgan Australia Ltd (1998) 84 IR 86

Applicant/Respondent on Notice of Motion Mr B Cross of counsel Solicitor: Somerville & Co. LEGAL REPRESENTATIVES: Respondent/Applicant on Notice of Motion Mr J Fernan of counsel Solicitor: Baker & McKenzie

Application under s 106 of the Industrial Relations Act 1996

1 This is an application by way of Notice of Motion seeking orders that the evidence of Larry Ivins, currently resident in the United States of America, be undertaken by way of an audiovisual conference between a facility in the Industrial Court at Sydney and a facility in the United States of America. 2 The application arises in the context of proceedings under s 106 of the Industrial Relations Act 1996. These proceedings have been set down for a hearing to commence on 10 July 2006 in this Court for a period of three days. Mr Ivins is a prospective witness to be called by the respondent who is also the applicant on the Notice of Motion. 3 The procedure in relation to applications for proposed evidence to be taken by way of video link is governed by rules and legislation. It has also been the subject of a number of judicial authorities both in this jurisdiction and in other jurisdictions. 4 Practice Direction No. 14 in this jurisdiction which applies to pre-hearing directions for applications under s 106 of the Act pursuant to Rule 89 of the Industrial Relations Commission Rules 1996 (the IRC Rules) contains a preparatory direction in relation to witnesses who are required to give evidence and may give that evidence by way of video link. The preparatory direction is contained in paragraph 12(h) of the Practice Direction which is expressed as follows:

12. The further preparation of the matter for hearing will be at the sole direction of the trial judge, but the parties may anticipate that the trial judge will require that the parties give their attention to the following matters:

(h)The availability of witnesses who are required to give evidence including the possibility that witnesses remote from the hearing may give evidence by video link and the practicalities of such an arrangement. There should also be discussions about the venue of the hearing or part of the hearing where a number of witnesses reside in an area remote from the location of the Court. 5 The Uniform Civil Procedure Rules which may be applied in this jurisdiction by virtue of Rule 89(5) of the IRC Rules set out a procedure for the taking of evidence by way of audiovisual link. The relevant rule is Rule 31.3 which states:

(1) If the court so orders, evidence and submissions may be received by telephone, video link or other form of communication.

(2) This rule does not apply to circumstances in which directions could be sought under section 25 of the Evidence and Procedure (New Zealand) Act 1994 of the Commonwealth. 6 The Evidence (Audio and Audio Visual Links) Act 1998 provides for a comprehensive procedure to be followed where it is anticipated that evidence may be given by way of audiovisual link. The relevant portion of that Act is s 5B which provides: (1) Subject to any applicable rules of court and subsection (2A), a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting.

(2) The court must not make such a direction if: (a) the necessary facilities are unavailable or cannot reasonably be made available, or (b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or (c) the court is satisfied that the direction would be unfair to the party, or (d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission.

(2A) A court must not make a direction under this Part in relation to the giving of evidence or making of a submission by audio visual link by any accused detainee in any preliminary criminal proceeding or relevant criminal proceeding in relation to the detainee concerning an offence alleged to have been committed by the detainee. However, this subsection does not prevent the making of such a direction in relation to an accused detainee in any other proceeding to which this Part applies.

(3) In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so.

It should be observed at this juncture that under s 5B the statutory power is expressed to be subject to any applicable rules of court. 7 In Studniberg v J P Morgan Australia Ltd (1998) 84 IR 86, a decision of Schmidt J, her Honour considered a number of matters which may be relevant to a determination as to whether to allow evidence utilising audio visual conference facilities. These matters may be conveniently set out in point form: · whether great expense will be involved bringing the witness to Sydney; · whether the witness's evidence is material to the issues to be determined; · the inconvenience, if any, of travelling to Sydney particularly if the witness occupies a senior position in the commercial operations of the relevant party: Laporte Group Australia Ltd v Vatselias (SC(NSW), Young J, No 5679/90, 25 November 1991, unreported); · the requirement for the speedy determination of the real questions between the parties in civil proceedings: Laporte Group Australia Ltd; Park v Citibank Savings Ltd (1993) 31 NSWLR 219 at 224; · the fact that evidence available through audiovisual conference is effectively viva voce evidence: B v Dentists Disciplinary Tribunal (1994) 1 NZLR 95 at 104; · the observations of Balcombe LJ in Henderson v SBS Realisation Ltd (unreported CA(UK), 13 April 1992) that the Court "should be very loath to construe the statutory provisions relating to jurisdiction or so to exercise its powers under the rule as to preclude the use of technological improvements which the law ought to be minded to accept where possible" · the fact that a party is not deprived of an effective right to cross-examine by use of the audiovisual conference facility: B v Dentists Disciplinary Tribunal at 107 - 109; Commissioner of Taxation v Grbich (1993) AAR 74; · the fact that by use of audiovisual conference facilities the demeanour of a witness may be satisfactorily assessed: Bayer AG v Minister for Health of the Commonwealth of Australia (1988) 13 IPR 225 at 296; · notwithstanding that the lack of sanctions under New South Wales law to reinforce the oath to tell the truth would be inhibited, the Court should not assume that the lack of sanctions would result in a witness giving false answers which would not have been given had the witness been physically present in the Court giving oral evidence: Garcia v Amerindo Investment Advisors Ltd (1991) 1 WLR 1140; · the availability of appropriate safeguards which could be built into any orders a Court may make for the taking of evidence via video link to ensure that the course of evidence proceeds fairly. 8 In Australian Securities and Investments Commission v John David Rich and Ors [2004] NSWSC 467 an application was made that two witnesses residing in the United Kingdom give their evidence in the Supreme Court at Sydney by way of audiovisual link. After examining the various authorities which Austin J divided into two broad approaches, one line generally in favour of the use of audiovisual evidence and the other line taking a more cautious approach, his Honour listed some "recurring themes" (at [19]). These included: · comparative costs and difficulties created by differences in time zones; · 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; · difficulties posed by the use of audiovisual facilities where cross-examination is lengthy. 9 After considering each of these items in some detail his Honour found (at [44]) that the contribution of several special factors weighed in favour of viva voce evidence and against audiovisual evidence. His Honour directed that the evidence would be taken in the United Kingdom (which was the alternative order sought by ASIC, the applicant on the interlocutory application). 10 In Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd (2001) 53 NSWLR 1, Palmer J after examining a number of authorities dealing with the taking of evidence by way of audiovisual link said (at [29]):

[I]t 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. 11 With these principles in mind I turn now to consider the suitability of the proposed evidence by way of video link in light of the particular circumstances of this matter. 12 The respondent/applicant on the Notice of Motion in these proceedings seeks orders from the Court that the evidence of Mr Ivins be taken by way of audiovisual facilities for a variety of reasons. 13 The respondent, represented by Mr Fernan of counsel, relied on the fact that it is a large corporation operating in the intellectual property area. It employs over 800 people in Australia and has a number of offices in the United States of America. The affidavit of Mr Ivins was tendered on the application. According to that affidavit Mr Ivins has been employed by the respondent for 25 years and currently holds the position of Enterprise Client Executive in the United States. Ms Hurley-Smith, solicitor, gave evidence for the respondent/applicant on the Notice of Motion. She said that Mr Ivins as part of his duties in the United States travels extensively throughout the various respondent-locations in the United States. His duties are such that it would cause great concern to the respondent if Mr Ivins was required to attend Court in Sydney and give his evidence viva voce. During the period in which these proceedings have been set down for hearing between 10 and 12 July 2006 for 3 days Mr Ivins apparently has business commitments in Colorado and is, according to Ms Hurley-Smith, unable to travel to Sydney. In cross-examination it emerged that Ms Hurley-Smith had spoken directly to Mr Ivins by telephone only on Wednesday 28 June 2006. Nevertheless, much of her information about the movements of Mr Ivins appears to have come at some earlier time from another representative of the respondent in the Untied States. 14 Mr Fernan in submissions informed the Court that Mr Ivins would be available at an office of Baker and McKenzie, the respondent's legal representatives in the proceedings, to give his evidence during the period that the matter has been set down for hearing. Video link facilities are available at all Baker and McKenzie offices in the United States and would be made available to enable Mr Ivins to give his evidence. 15 Matters of credit Mr Fernan submitted may be put as firmly by way of video link as they may be put to a witness giving oral evidence. 16 Mr Fernan also relied on the fact that the costs of requiring Mr Ivins to travel to Sydney in order to give his evidence orally would be significant, and, that all relevant documentary evidence including two lever arch folders comprising the tender bundle had already been provided to Mr Ivins. These matters Mr Fernan submitted may facilitate the granting of the application. In addition Mr Fernan relied on the fact that the hearing was of a relatively short duration (3 days) although he conceded that Mr Ivins was the respondent's main witness, and, that most of his evidence would be in dispute and likely to be the subject of a challenge to credit. 17 Mr Cross who appeared for the applicant/respondent on the Notice of Motion relied principally on the decision in ASIC v Rich in opposing the application. Mr Cross placed particular reliance on what he said would be significant issues of credit to be decided in relation to the applicant's evidence and that of Mr Ivins. Mr Ivins in addition, he said, was the respondent's key witness. Mr Cross also sought to emphasise the difficulties associated with the different time zones between Australia and the United States of America as well as the quality of the facilities intended to be used should the application be granted. In this instance Mr Cross reminded the Court that there has been no opportunity for the Court to check the facilities intended to be used in the United States. 18 Mr Cross also questioned the respondent's/applicant on the Notice of Motion contention that Mr Ivins would incur significant costs if he were to travel to Sydney and give his evidence. There was no evidence led as to what those costs might be nor was there any evidence as to what the costs of arranging the audiovisual conference facilities might be. In any event Mr Cross submitted that the costs of meeting either contingency would not result in a "large difference". 19 Both counsel addressed the criteria set out in s 5B(2) of the Evidence (Audio and Audio Visual) Act 1998. The Court must consider each of these criteria before deciding whether to make a direction that Mr Ivins give his evidence in Sydney by way of audiovisual link from the United States of America. I am satisfied that the necessary facilities for giving such evidence are not unavailable. Video link facilities are now commonplace and improvements in technology are such that any difficulties which may manifest can be remedied at short notice and at minimal inconvenience to the parties and to the Court. It is another matter as to whether the facilities are available in this Court. Inquiries however can be made and the parties notified accordingly. I am not satisfied that Mr Ivins can more conveniently give his evidence viva voce. I accept that Mr Ivin's business commitments and the commercial operations of the respondent are such that he would be inconvenienced if required to travel to Sydney. The issue of costs raised by Mr Cross I do not find persuasive. The respondent/applicant on the Notice of Motion has undertaken, and indeed seeks an order in terms, to pay the costs of providing the audiovisual conference facilities. The question of costs that may be incurred if Mr Ivins were to give his evidence by way of video link, however significant, does not of itself outweigh the inconvenience to Mr Ivins travelling to Sydney in order to give his evidence. In addition, significant credit challenges will not necessarily suffer in my view from the giving of evidence by way of video link. I agree with those authorities analysed by Schmidt J in Studniberg v J P Morgan which have held that evidence given by way of audiovisual link is effectively viva voce evidence and that the use of the facility does not deprive a party of an effective right to cross-examine. Differences in time zones in my view may be accommodated by the making of suitable arrangements. I note also that the orders sought in the Notice of Motion contain appropriate safeguards for the taking of evidence by way of audiovisual link so as to ensure that the course of evidence proceeds fairly. 20 Those orders relevantly provide:

(b) the examination of the witness will take place during the course of the hearing of these proceedings, at a specific time to be agreed by the parties and approved by the Commission. Unless otherwise agreed or ordered, normal Commission sitting times and adjournment times will be observed during the course of the evidence of the witness;

(c) the Respondent shall provide a person to administer an oath to the witness that will not contravene the law of the Remote Location;

(d) the Respondent shall pay, in the first instance, the costs of providing the video conference facility at both the Remote Location and the Sydney Location;

(e) the video conference system in the Remote Location must be such as to allow a reasonable part of the interior of the room in which the witness is situated to be shown on screen, yet retaining sufficient proximity to depict the witness;

(f) the Respondent shall provide a video of the evidence of the witness to the Commission and the Applicant;

(g) the witness is to give his evidence sitting at a plain desk or standing at a lectern;

(h) each party must use its best endeavours to ensure that the written materials or exhibits already discovered between the parties as well as any additional documents about which the witness is likely to be asked in the course of his evidence is available in the Remote Location and clearly identified;

(i) a facsimile machine is to be located in the Sydney Location and the Remote Location for the video conference, at the cost in the first instance of the Respondent;

(j) at all times during the course of the video conference, the Commission may terminate the video conference if it is unfair to either party to continue;

(k) provision of facilities at the Remote Location will be made for an observer appointed by the Applicant, if desired by the Applicant, provided reasonable notice is given to the Commission and the Respondent of the Applicant's intention to appoint an observer and the name of the observer. The Applicant will bear the costs relating to the appointment of an observer;

(l) the only persons present in the Remote Location (other than the witness while actually giving evidence and the Applicant's observer) are to be those operating the video and facsimile facilities. All persons present at the Remote Location are to be identified upon entry into the video conferencing facilities. 21 The Court makes the following orders:

1. The Notice of Motion filed on 8 June 2006 seeking order (1) (a) to (l) inclusive is granted.

2. The respondent/applicant on the Notice of Motion is to approach the Registry as soon as possible in order to facilitate all necessary arrangements for the taking of evidence by way of video link.

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