[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: