Plaintiff v Defendants

Supreme Court of Victoria|2017-05-31|Before: John Dixon J

PRACTICE AND PROCEDURE - Witnesses - Application to take evidence by video link - Requirement to make out a case for such an order to be made - What the interests of justice require in a particular case - Evidence (Miscellaneous Provisions) Act 1958, s 42E.

2 The relevant provision of the Act is in the following terms.

Appearance, etc. by audio-visual link or audio link

(1) Subject to section 42F and to any rules of court, a court may, on its own initiative or on the application of a party to the legal proceeding, direct that a person may appear before, or give evidence or make a submission to, the court by audio-visual link or audio link from any place within or outside Victoria, or outside Australia, that is outside the courtroom or other place where the court is sitting.

(2) A court must not make a direction under subsection (1) unless it is satisfied that the technical requirements specified in section 42G are met, or can reasonably be met, in the case of the particular link.

(3) The court may, at any time in the course of a proceeding, vary or revoke a direction under subsection (1) either on its own initiative or on the application of a party to the proceeding.

(4) Without limiting subsection (3), circumstances in which a court may vary or revoke a direction under subsection (1) include the failure of the link to which the direction relates.

(5) Each party to a proceeding may address the court in respect of the making, variation or revocation of a direction under subsection (1).

3 Sharon Jackson is the plaintiff's talent agent in the United States. She lives in Los Angeles. Ms Jackson has two children aged three and seven. She has no arrangements for the care and welfare of her children if she were to travel to Australia. Her husband is unable to provide care to an appropriate level because of his work commitments. In addition, Ms Jackson and her family are moving house in the week of 5 June 2017.

4 Ms Jackson is a talent agent at William Morris Endeavour Entertainment LLC (WMEE), which is the largest talent agency in the world. She manages over 50 clients and spends a considerable amount of time in meetings. Over the next fortnight, Ms Jackson has daily meetings scheduled with studio executives and clients and producers, which cannot readily be rescheduled. Apart from attending meetings, Ms Jackson needs to be available to attend to the needs of her clients as they arise.

5 For these reasons, the plaintiff requests that Ms Jackson give evidence by video link from the United States. Unless she is permitted to give evidence in this fashion, she will not be able to give evidence in the proceeding as she is not prepared to travel to Melbourne to do so, and the plaintiff cannot compel her to do so.

6 The plaintiff's solicitors have confirmed that the technical requirements specified in s 42G of the Act are reasonably capable of being met if a direction for evidence to be given by video link is made. The solicitor's belief is based upon information received that WMEE has the required SIP and ISDN video conferencing equipment that will connect with this court's video link facilities.

7 The plaintiff informed me that Ms Jackson will give evidence about the fact that after Pitch Perfect 2 was released in the United States in May 2015, she put Ms Wilson forward for movie roles but Ms Wilson was not offered any role. The plaintiff raised the impugned articles with her. She'll give evidence that the plaintiff's worth in 2015, was about $5 million for a lead role in a movie. She is an important witness for the plaintiff.

8 The plaintiff does not expect Ms Jackson's evidence to exceed one hour in total, including cross-examination. Counsel have identified about a dozen documents in the court book that might be put to her. The plaintiff's legal team have stated that arrangements will be made to provide Ms Jackson with the set of all of the documents that may be put to her in a paginated format that will permit an accurate correlation between documents being examined in the court room and documents being examined by the witness on the video link.

9 The plaintiff does not expect that Ms Jackson's credit will be in issue.

10 The defendants opposed the application for the direction. They submitted that -

(a) While significant inconvenience may occur, nothing in the affidavit of the plaintiff's solicitor states that Ms Jackson is simply unable to come to Melbourne to give evidence. I was invited to find that she is unwilling to come to Melbourne because it is too hard.

(b) The plaintiff has unreasonably delayed in making arrangements for Ms Jackson to come to Melbourne when there has been ample opportunity for Ms Jackson to put appropriate arrangements in place to avoid the difficulties that she now asserts constrain her capacity to come to Melbourne. The difficulties for Ms Jackson that are the basis for the application were entirely avoidable by proper planning on the part of the plaintiff.

(c) The defendants do not at this stage submit that there is actual prejudice. Rather, they apprehend that a direction for evidence by video link would impact on the document management in the way they might wish to cross-examine Ms Jackson. For one thing, although it is not the dominant consideration, it will be necessary for the defendants to engage in additional preparation, particularly with respect to document management prior to Ms Jackson giving evidence that would not have been the case had she appeared in court. A concern was raised that the witness might be looking at the wrong document without the court being aware.

(d) The topics for evidence that were foreshadowed by the plaintiff are relevant to the plaintiff's special damages claim that looms large over this case, a claim for some $8 million. Cross examination of Ms Jackson will be significant for the defence on that issue.

(e) Although the issue of the special damages claim is not a question for the jury, there is at least one matter relevant to the issues before the jury about which Ms Jackson will be cross-examined. The plaintiff gave evidence that Ms Jackson was present at a meeting when she received general advice about how to field enquiries from the media about her age. The defendants wish to cross-examine Ms Jackson about that and about what decisions were or were not made, what actions were or were not taken, what arrangement or understanding was or was not in place. The defendants also noted that Ms Jackson appeared to have been copied in to emails between the plaintiff and her publicist. That said, the defendants accept that the bulk of Ms Jackson's evidence is relevant only to issues to be determined by me, not the jury.

(f) The defendants speculated that there may be issues of credit arising in relation to the special damages claim that could crossover into the jury's assessment of evidence relevant to the justification defences.

(g) In respect of document management, the defendants contended that in the course of cross-examining Ms Jackson about her recollections about particular movie roles or opportunities, it may be necessary to cross-examine her under s 44(3) of the Evidence Act 2008 in relation to documents that record previous representations of third parties. That procedure may not be comfortably accommodated by video link. There may be 15 or 20 documents. These documents are not in the court book and have not been discovered having apparently been retrieved from the internet by counsel in research for cross-examination.

11 The Act gives the court a broad discretionary power to make orders for the taking of evidence by audio-visual link. The similar provisions of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW), the related procedural rules and the case law about the procedure were analysed by Austin J in ASIC v Rich.[1] Austin J noted broadly two approaches to the exercise by courts of the discretion to permit evidence by video link. One line of cases generally favours the use of audio-visual evidence while the other line of cases takes a more cautious approach.

12 Austin J identified some recurring themes in the cases that are pertinent to the court's discretion.[2]

Apart from dealing with obvious practical matters such as comparative costs and the difficulty created by differences in time zones, the cases touch upon some recurring themes: the appropriateness of audio-visual facilities for centrally important evidence, the assessment of credit where evidence is given by audio-visual link, difficulties raised by the use of documents for cross-examination in audio-visual evidence, technological difficulties due to lapse of time between transmission and receipt of questions and answers, and difficulties posed by the use of audio-visual facilities where the cross-examination is lengthy. There are also comments on the general approach to be taken by the court to a proposal for evidence to be adduced using audio-visual facilities.

13 Austin J concluded that the fact that a witness's evidence will be centrally important should not of itself persuade the court against using audio-visual facilities. A combination of factors, such as anticipating lengthy and complex cross-examination and challenge to the credit of the witness will be likely to persuade the court against audio-visual evidence unless there is a good reason for choosing it.

14 I accept that Ms Jackson is an important witness for the plaintiff and accordingly the defendant's cross-examination of her will be significant for the defence. However, I am not persuaded that any challenge to the credit of Ms Jackson is likely to be significant or that her cross-examination can reasonably be expected to be lengthy and complex.

15 It is unlikely that her credit will be assessed by the evaluation of body language or subtle nuances that may not be readily observable over a video link. It is highly probable that, in respect of the bulk of her evidence, an assessment of her credibility and reliability will be based on comparison of her oral testimony with documents. I accept that the particular issue relevant to the jury's deliberations is unlikely to be assessed in this manner and it is probable that Ms Jackson's evidence about that conversation will turn on recollection. That said, her evidence on that issue will not be central to the issues in the case.

16 I also note that video evidence is commonly used before juries in criminal matters and the importance of the trial as a public event in which witnesses are confronted by their cross-examiners can be overstated.[3] The notion of the public opportunity to confront one's accusers has its foundations in the criminal law and, contrary to the defendants' submission has little, or no, role to play on this application.

17 It may be that the plaintiff's estimate of the time Ms Jackson's evidence will take is optimistic but, having regard to the issues in the trial as identified by counsel in their opening statements and in the plaintiff's evidence, there is no basis to expect that Ms Jackson's cross examination will be complex or lengthy.

18 Ultimately, the real question was whether the prejudice to the defendants in requiring them to prepare the documents that they wish to put to the witness in advance to enable an orderly process of document management during the cross-examination was greater than the prejudice that the plaintiff would suffer through being unable to rely on Ms Jackson's evidence in support of a very substantial claim being made in the proceeding.

19 All that will be required to avoid the consequences of delay or confusion in taking the evidence by audio-visual link through document management, alluded to by the defendants, is some basic, prudent preparation. There is no reason to suppose that the parties will not cooperate to ensure the best outcome, if a direction for audio-visual evidence is given.[4] The plaintiff's legal team has offered to ensure that an appropriately organised bundle of documents will be available to Ms Jackson when she gives evidence. Apart from the inconvenience of advance preparation, the defendants offered no compelling reason not to place in that bundle documents that they wish to put to Ms Jackson, whether pursuant to s 44(3) of the Evidence Act or otherwise.

20 I expect that the parties will take appropriate steps to ensure that all documents to be considered by the witness during the course of giving evidence are collated and included in that bundle. I do not accept that, with appropriate preparation in place, there ought be concern that the witness may be mistaken about which document to look at. If difficulties arise through the absence of documents from the bundle when cross-examination starts, the parties will need to be in a position to explain clearly the omission if the exercise of a discretion is to be sought.

21 I am satisfied that Ms Jackson's familial and employment commitments are significant and I reject the defendants' submission that she is simply unwilling to come to Melbourne because it is too hard. The plaintiff may be significantly disadvantaged in seeking the just determination of this proceeding if she is denied the opportunity to rely on Ms Jackson's evidence. It is beyond doubt that the plaintiff is likely to suffer very significant prejudice if denied the opportunity to rely on evidence, in support of her special damages claim, from her principal US talent agent.

22 While I bear in mind the defendants' submission that the prejudice that the plaintiff will suffer is a result of her dilatory approach to organising for Ms Jackson to travel to Australia, I do not accept that to be a significant consideration as the evidence does not permit me to conclude that Ms Jackson would otherwise have been available to travel if arrangements had been made in a timely fashion. I accept that the reasons advanced for her refusal to travel to Australia are genuine and appear likely to have been determinative of her attitude irrespective of when she was asked to travel to Australia.

23 In exercising my discretion I am guided by the Civil Procedure Act 2010 and its requirement that I give effect to the overarching purpose in exercising the court's powers, both statutory and procedural.[5] In particular, I must further the overarching purpose by having regard to, amongst other things, the just determination of the civil proceeding, the efficient conduct of the business of the court, the efficient use of judicial and administrative resources, the fair and just determination of the real issues in dispute, and dealing with a civil proceeding in a manner proportionate to the complexity or importance of the issues in dispute and the amount in dispute.[6]

24 Balancing all the relevant considerations on the basis of the evidence and counsel's expectations about Ms Jackson's evidence, I am not persuaded that the present circumstances warrant that I should take a particularly cautious approach to the use of audio-visual evidence and I do not consider it likely that the circumstances of Ms Jackson's evidence as it unfolds will require a different conclusion. That said, I note that under s 42E(3) the court may, at any time in the course of a proceeding, vary or revoke a direction for evidence to be given by video link either on its own initiative or on the application of a party.

25 Accordingly, I will direct that Ms Jackson may give her evidence in this proceeding by audio-visual link from Los Angeles, in the United States of America.

[1] [2004] NSWSC 467. See also Kirby v Centro Properties Ltd [2012] FCA 60; (2012) 288 ALR 601.

[3] Compare Blackrock Asset Management Australia Services Ltd v Waked (No 2) [2011] FCA 479, [46] and Kirby v Centro Properties Ltd [2012] FCA 60; (2012) 288 ALR 601, 604 [9].

Evidence (Audio and Audio-Visual Links) Act 1998(NSW)

(Miscellaneous Provisions) Act 1958

At a glance

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Judgment (41 paragraphs)

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Legislation Cited (3)

Cases Cited (1)