Ozemac Pty Ltd v Jackanic & Anor [2020] VCC 790

3 On 27 May 2020, the solicitors acting on behalf of the defendants wrote to the Court setting out the basis upon which their clients requested the trial be conducted in-person. No affidavit material was filed. Instead, the defendants relied upon the submissions contained in their solicitors' letter. The basis for requesting an in-person trial related to the assessment of credit of the principal witnesses. The solicitors submitted as follows:

"In this case, the Court's decision as to liability will turn largely upon its assessment of the credit of witnesses for each side who will depose to the contents of oral conversations between them: frankly, Dimce Nedjelkovic, on the one hand, and the first defendant and Richard Cappelletti, on the other are, totally at odds as to contents of the oral conversations between them. Indeed, it is no exaggeration to say that the plaintiff's case stands or falls on Mr Nedjelkovic's credit in recounting the oral conversations with the first defendant and Mr Cappelletti which it says gave rise to its entitlement to stay in the premises beyond the expiry of the lease in question."

4 The defendants' solicitors are now of the view, having heard the plaintiff's opening, that the trial could extend from the original estimate of three days up to five days. In the event the Court determines to proceed by way of e-trial, the defendants' counsel and the defendants' solicitor were both unavailable on 25 August 2020.

5 On 29 May 2020, the plaintiff's solicitor forwarded a written outline of the plaintiff's submissions dated 28 May 2020. The plaintiff wishes to have the matter proceed by way of a video-link hearing. Whilst acknowledging there were some issues of credit in the case, the plaintiff argued the question of liability was established by reason of matters said to be contained in paragraph 7(a) of the defendants' defence referring to a telephone discussion between Mr Nedjelkovic and Mr Cappelletti.

6 The plaintiff's submissions then set out several authorities in respect of what is now a burgeoning jurisprudence dealing with COVID‑19 issues. The cases demonstrate the mere fact of a matter proceeding by way of a video trial is not in and of itself necessarily a compelling basis for an adjournment. A party is not entitled "to have a face-to-face hearing". When the court, especially an appellate court has found that telephone or audio visual link hearings provides a satisfactory experience, it is not necessary to adjourn hearings at the request of a party who seeks a face-to-face hearing: JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd (2020) WASCA 38, at [6]-[8].

7 The Commercial Division Response to COVID-19 Practice Note of this Court provides that all trials will proceed by way of remote e-trial until restrictions are lifted, unless no reasonable alternative exists. The Practice Note also reaffirms that the responsibilities of all parties and their legal representatives to comply with the provisions of the Civil Procedure Act 2010 ("CPA") continues to apply.

8 As noted by Perram J in Capic v Ford Motor Company of Australia Ltd [2020] FCA 486 (16 April 2020), at [25]:

"Under ordinary circumstances, I would not remotely contemplate imposing such an unsatisfactory mode of a trial on a party against its will. But these are not ordinary circumstances and we have entered a period in which much that is around us is and is going to continue to be unsatisfactory. I think we must try our best to make this trial work. If it becomes unworkable then it can be adjourned, but we must at least try."

9 In that case, his Honour rejected an application for an adjournment of a class action listed for six weeks in which the applicant proposed to call some 50 witnesses. By way of contrast, the plaintiff notes this proceeding is a relatively uncomplicated dispute and there are only six witnesses to be called, five of whom are lay witnesses.

10 In Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504 (9 April 2020), Lee J considered a number of reasons for rejecting an application to adjourn proceedings in which ASIC was going to call 41 witnesses, 31 of whom were proposed to be the subject of cross-examination. His Honour said at [33]:

"To the extent that demeanour does play an important role in assessing the evidence of witnesses, then my experience, particularly in the recent trial that I conducted, is that there is no diminution in being able to assess the difficulty witnesses were experiencing in answering questions, or their hesitations and idiosyncratic reactions when being confronted with questions or documents. Indeed, I would go further and say that at least in some respects, it was somewhat easier to observe a witness closely through the use of the technology than from a sometimes partly obscured and (in the Court in which I am currently sitting) distant witness box."

11 As is always the case in considering applications such as adjournment applications, a balancing exercise needs to be conducted. As part of that consideration, the overarching purpose of the CPA to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible must be considered. On the one hand, the defendants contend a face-to-face hearing is preferable due to perceived difficulties with assessing credit. On the other hand, the plaintiff wishes to proceed and not have its case unduly delayed. It points to the authorities which establish that an e-trial does not necessarily result any relevant disadvantage, including making observations about witnesses' credit.

12 In addition to the parties' interests, there is also a public interest in having hearings dealt with expeditiously and the work of the Court must continue. As Robertson J noted in Plaintiff S111A/2018 v Minster for Home Affairs (No 2) [2020] FCA 499 at [17]:

"The pandemic is not a basis on which, in this matter, the lawyers for the applicants may expect a procedural standstill or procedural delay. The applicants' interests are not the only interests in the litigation. The respondents have an interest in getting the matter on for hearing and there is a similar public interest."

13 Given the matter was part-heard in March 2020 and may not be able to be resumed in a normal face-to-face hearing for at least nine months, it is preferable and appropriate, in my view, that the matter proceed as soon as reasonably practicable by way of an e-trial. The only ground relied upon by the defendants in opposition to that course is the issue raised about assessing the credit of witnesses. For the reasons canvassed by the authorities referred to above, it has not been demonstrated and nor has it been my experience that the capacity to determine the credibility of a witness is unduly impacted or prejudiced by way of proceeding by video link, such that a fair trial cannot be conducted. In fact, as Lee J noted in Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504, there may even be a slight advantage because the face of the witness giving evidence is more prominent and thus more capable of being observed at closer quarters. Accordingly, I am not persuaded by the defendants' submission that the trial must be further postponed so that it can be heard face-to-face. I consider the interests of justice and the overarching purposes under the CPA can be met by continuing the hearing by way of an e-trial. The defendants' application is therefore refused.

14 The defendants' counsel and instructing solicitor are unavailable for a trial commencing on 25 August 2020. Counsel for the plaintiff is unavailable on the other two days suggested. The Court will make inquiries as to the availability of further dates in September and following and will advise the parties accordingly.

15 At paragraph 22 and following of the plaintiff's submissions, the plaintiff sets out various procedural directions which it seeks in respect of the adjourned trial date. A new matter is raised in paragraphs 25 to 27; namely, that the outlines of evidence already provided be converted into witness statements and the witness statements stand as evidence-in-chief. The point made by the plaintiff is that the matter may proceed more smoothly and quickly if witness statements are provided. Whilst that may be so, it is the practice of this Court normally to receive evidence viva voce. In this case, where the focus is said to turn upon oral conversations between the principal witnesses and both parties have acknowledged that credit will be a relevant consideration, I am not persuaded there should be a departure from the usual practice. Consequently, I will not order that evidence-in-chief be given at trial by way of witness statement.

16 That then leaves the issue of costs. The plaintiff seeks its costs associated with the application by the defendants to have the matter proceed by way of a face-to-face hearing. It is said that the defendants' refusal to accede to the position initially adopted by the Court; namely, proceeding by way of an e-trial and supported by the plaintiff, was unreasonable and contrary to authority and the Court's Practice Note, such that the plaintiff ought to have its costs of and incidental to the application. I am not persuaded the stance taken by the defendants was unreasonable such that the plaintiff ought to have its costs. Given the novel circumstances arising from the COVID-19 pandemic, I am of the view that any costs incurred by the parties relating to the issue of the format of the adjourned trial, namely, whether it should be by e-trial or a face-to-face, should be costs in the cause.

17 I direct the parties to confer and if possible, submit a consent minute of proposed orders to reflect these reasons and any proposed further procedural orders.

I certify that these 6 pages are a true copy of the Reasons for Ruling of Her Honour Judge A Ryan delivered on 11 June 2020.