Prewett v Oceaneering Australia Pty Ltd [2026] FedCFamC2G 325

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. Ms Prewett is a former employee of Oceaneering Australia Pty Ltd (Oceaneering Australia). Ms Prewett commenced this proceeding in the Court's Fair Work Division alleging, amongst other things, that Oceaneering Australia contravened s 340 of the Fair Work Act 2009 (Cth) (Fair Work Act) by taking adverse action against her for a proscribed reason. At the time of making the orders the subject of these reasons, the proceeding was listed for a three-day hearing commencing on 2 February 2026. The hearing has subsequently been adjourned for reasons unrelated to the interlocutory application the subject of these orders and reasons.
2. Oceaneering Australia intends to call two witnesses at the hearing. Both witnesses are employees of Oceaneering International Inc (Oceaneering International), of which Oceaneering Australia is a subsidiary. Those witnesses are Ms Dawn Michelle Keske, who is the Vice President of Human Resources at Oceaneering International, and Mr Jeffrey Shayne Rohloff, who is the Global Human Resources Director of Oceaneering International.
3. Ms Keske and Mr Rohloff are both based in Texas in the United States of America. Oceaneering Australia filed an interlocutory application on 22 December 2025 seeking an order permitting Ms Keske and Mr Rohloff to give evidence at the hearing via video link. Ms Prewett opposes that order.
4. On 22 January 2026 I made the following orders:
   1. Pursuant to s 201 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), Jeffrey Shayne Rohloff, who is a witness for the respondent, may give his evidence at the hearing of this proceeding by video link.
   2. The interlocutory application filed by the respondent on 22 December 2025, insofar as it seeks orders for Dawn Michelle Keske to give evidence at the hearing of this proceeding by video link, is dismissed.
   3. The reasons for making these orders will be published from chambers at a later date.
5. These are the reasons referred to in order 3.

THE EVIDENCE BEFORE THE COURT FOR THE PURPOSES OF THE INTERLOCUTORY APPLICATION

1. In support of its interlocutory application, Oceaneering Australia relied on two affidavits of Olga Janina Klimczak, affirmed on 19 December 2025 and 15 January 2026 respectively. Ms Klimczak is a partner of Herbert Smith Freehills Kramer, the legal representative for Oceaneering Australia. At the interlocutory hearing, Counsel for Ms Prewett objected to the admissibility of these affidavits on the basis that the affidavits did not clearly indicate who authorised Ms Klimczak to make the affidavits on behalf of Oceaneering Australia. While I ruled that the affidavits be admitted into evidence, this, and other issues raised by Counsel for Ms Prewett, go to the weight that might be afforded to that evidence.
2. Most significantly, Ms Klimczak repeatedly gives hearsay evidence that she is 'instructed' about certain matters, without adducing evidence of the source of the hearsay evidence, as is generally required if a person wishes to rely on the exception to the hearsay rule in interlocutory hearings set out in s 75 of the Evidence Act 1995 (Cth). This diminishes the weight that I give to aspects of Ms Klimczak's evidence.
3. Following the hearing, Ms Prewett's lawyer provided to the Court a copy of Rees J's judgment in In the matter of Essential Media and Entertainment Pty Ltd [2020] NSWSC 990. I have considered this judgment insofar as it relates to issues of authority. Nothing in the judgment changes my views on the admissibility of Ms Klimczak's affidavit, or the weight that should be afforded to the evidence in that affidavit.
4. Ms Prewett, in opposing the interlocutory application, relied on two affidavits, both affirmed by her on 12 January 2026 and 16 January 2026 respectively.

THE COURT'S POWER TO ALLOW WITNESSES TO GIVE EVIDENCE BY VIDEO LINK

1. Pursuant to s 201(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), the Court may, for the purposes of any proceeding, direct or allow testimony to be given by video link or audio link. Prior to making an order under s 201(1) of the FCFCOA Act, the Court must be satisfied that, relevantly:

(a) the courtroom where the Judge is sitting is equipped with facilities that enable all eligible persons present in the courtroom to see and hear the person who is giving the testimony; and

(b) the place at which the witness is located is equipped with facilities that enable them to see and hear each eligible person who is present in the courtroom where the Judge is sitting: see s 204(1) of the FCFCOA Act.

1. This Court uses courtrooms that are equipped with facilities that will enable all persons in the courtroom to see and hear witnesses who are giving evidence remotely.
2. Ms Klimczak gave evidence that she is instructed and believes that Ms Keske and Mr Rohloff have reliable internet connection and high quality video and audio conferencing facilities available to them in a secure and private location, where they would not be distracted, interrupted or overheard. She also gave evidence of being instructed that Ms Keske and Mr Rohloff usually use Microsoft Teams but could use a different program if that is more convenient to the Court. I accept that Ms Keske and Mr Rohloff have adequate facilities available to them for the purposes of s 204(1) of the FCFCOA Act.
3. I am therefore satisfied that it is open to the Court to make an order under s 201(1) of the FCFCOA Act, if the Court chooses to exercise its discretion in that manner.

THE EXERCISE OF THE COURT'S DISCRETION IN THIS CASE

Relevant authorities and relevant considerations

1. Both parties have referred in their submissions to a number of cases considering the exercise of a court's discretion to allow a witness to give evidence by video.
2. Both parties referred in their submissions to Marzo v Cittadinni [2025] FedCFamC2G 1591 (Marzo). In that case, Judge Forbes surveyed the relevant authorities and provided the following summary at [48]-[57] (footnotes omitted):
   1. Whether or not the court will exercise its discretion in any given case will depend upon the particular facts and circumstances of that case. There is no right to appear remotely - indeed in my view there is a presumption against it. Good reasons for the exercise of the court's discretion must be made out by the party seeking the favourable exercise of that discretion: Australian Securities and Investments Commission v Wilson [2020] FCA 873 at [6], [24] (Wilson).
   2. In Southernwood [v Brambles Limited (No 2) [2022] FCA 973] at [44], Murphy J noted that no one set of factors are either exhaustive nor prescriptive of the way in which the court's discretion should be exercised. The discretion is a broad one in which the determining interest is the interests of justice in the case at hand. There is no presumption nor prima facie case as to the way in which the discretion is to be exercised. Murphy J held that the discretion involves a balancing exercise as to what will best serve the administration of justice, doing so consistently with managing justice between the parties. That assessment should be guided by the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth), namely, the facilitation of the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
   3. There have been, on the decided cases, differing approaches adopted to the giving of evidence via video link. There is generally a line of cases in favour of the use of audio or visual evidence, and a line of cases which urge a more cautious approach.
   4. Several authorities emphasise the benefit that it is possible, with video, to obtain a clearer view of the witness, such that facial expressions, reactions, bodily movements and gestures are easier to discern when evidence is given remotely, as opposed to when the witness is positioned some distance from the bench in a courtroom: Tetley v Goldmate Group Pty Ltd [2020] FCA 913 at [16]; Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd [2020] FCA 1153; (2020) 147 ACSR 521 at [49]; Universal Publishing Music Pty Ltd v Palmer [2020] FCA 1472 at [32]. By contrast, other authorities raise concerns of a lack of solemnity about giving evidence remotely, as well as difficulty in appreciating and assessing non-verbal signals such as minor differences in emphasis or tone: Palmer v McGowan (No 2) [2022] FCA 32; (2022) 398 ALR 524 at [43]- [47]; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; (2009) 181 FCR 152 at [78].
   5. In Southernwood, Murphy J surveyed a number of relevant authorities (including some of those cited by the applicant) which revealed changing attitudes and diverging opinions within the courts regarding the conduct of proceedings and the hearing of evidence across electronic platforms. In terms of the balancing exercise which underpins the discretion to permit testimony by video, the Courts have recognised that there have been substantial advances in the state of technology which can lead to savings in time and cost. The experience of the COVID-19 pandemic and the widespread adoption of video technology which became necessary to ensure that courts continued to function during periods of lockdown, have seen many judges enthusiastically embrace technology under the rubric of the overarching purpose - efficiency and avoiding undue delay, expense and technicality. Yet there are many Courts and judges who remain steadfastly of the view that there are inherent deficiencies, inefficiencies and complications when evidence is taken by video link. There is no one size fits all answer.
   6. Some judges have expressed the view that where evidence is relatively uncontroversial, the cross-examination is not likely to be lengthy, or no real issue of credit is involved, the taking of video evidence can be beneficial to the administration of justice and consistent with justice between the parties. It can be a manner of ensuring a smooth trial by receiving evidence in an efficient, cost-effective and timely way. I completely agree.
   7. That said, when doing justice between the parties, there can be a real and material difference between viva voce evidence and evidence given from a remote location via video.
   8. Concerns regarding the effectiveness of cross-examination, the importance of certain witnesses and their credit to the determination of factual disputes, in-trial document management, reliability of technology and fairness to the parties loom as just some of the issues when considering applications of the kind made by the applicants. For many judicial officers, particularly trial judges who are required to extract the truth from a thicket of contested narratives, the task can be made all the more difficult when court participants are separated by distance, time-zone and technology.
   9. In Kirby v Centro Properties Ltd [2012] FCA 60, Gordon J cited with approval the remarks of Buchanan J in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No.3) [2009] FCA 1306 where his Honour said at [78]:

I share the concerns expressed by Spender J in World Netscape [sic] and by Stone J in Dorajay [Pty Ltd v Aristocrat Leisure Ltd [2007] FCA 1502] about the limitation on the effectiveness of video link arrangements as a means of taking oral evidence. I am particularly troubled by the prospect (or possibility) that the cross-examination of an important witness might be rendered less effective by the limitations of video link technology or the absence of the witness from the courtroom. Although the days are gone when witnesses are expected to feel any sense of intimidation as an aid to telling the truth, there is no doubt in my mind that the requirement to give evidence on oath or affirmation in the (generally) solemn atmosphere of a courtroom in the presence of a judge, and to answer questions in cross-examination in the presence also of cross-examining counsel, has at least three potential benefits. It enhances the prospect that the witness will remain conscious of the nature and solemnity of the occasion and of his or her obligations. It affords the cross-examiner some reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party. It provides the Court with a more satisfactory environment in which to assess the nature, quality and reliability of responses by a witness, both to questions and to the overall situation presented by the necessity to give evidence in court. To my mind there remains, even in the modern context, a certain "chemistry" in oral interchanges in a courtroom, whether between a judge and counsel (or other representative) or between cross-examiner and witness. I would not wish too lightly to deprive a cross-examiner of that traditional forensic element in the exchange although, as the cases universally make clear, the Court must now, if asked to do so, balance the interests of a cross-examining party against claimed inconvenience both in individual cases and with respect to individual witnesses. Notwithstanding the increased availability and use of video link technology, in my view, a case must be made out for the use of video link evidence if it is opposed by an affected party. ...

1. Improvements in technology (many of which emerged during or as a consequence of the COVID-19 pandemic) have addressed some issues but not all. There is no technology which can replicate the solemnity of the court room for the remote witness or bring the remote witness into the same physical and emotional environment in which other parties and witnesses must participate in the proceedings.

1. In Tan v Commonwealth of Australia (Department of Defence) [2025] FedCFamC2G 439 (Tan), Judge Lucev said at [60]:

It remains the case in the Court's view that the attendance of witnesses to give evidence in person is the primary and desirable means by which evidence is to be given. There are, obviously, exceptions to that, but evidence in person remains the norm and the video link provisions in the FCFCA Act are not intended to make video link evidence the norm. There are particular circumstances in the recent past of the COVID-19 crisis, which does not particularly touch this matter, other than on the periphery, which means in certain circumstances video link evidence may become the norm for a time. But where, as here, it appears that the basis for the application revolves, in part, around a claim, not made out the Court notes, by Ms Barbuto of disruption to her work duties and to her responsibility as a carer then it amounts to no more than a means to avoid the Courtroom, and if acceded to too readily, is in danger of becoming regarded as a means by which a majority of people could avoid the Courtroom with all of the forensic benefits that accrue in a Courtroom in a witness facing the litigants and the Court: Rooney [v AGL Energy Ltd (No 2) [2020] FCA 942] at [18] per Snaden J and Wilson at [27]-[28] per Jackson J.

1. It is appropriate, in considering the exercise of the Court's discretion, to take into account the overarching purpose of the Court's practice and procedure provisions set out in s 190 of the FCFCOA Act. That section relevantly provides:

(1) The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), is to facilitate the just resolution of disputes:

(a) according to law; and

(b) as quickly, inexpensively and efficiently as possible.

Note 1: For civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), see subsection (4).

Note 2: The Federal Circuit and Family Court of Australia (Division 2) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.

(2) Without limiting subsection (1), the overarching purpose includes the following objectives:

(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);

(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c) the efficient disposal of the Court's overall caseload;

(d) the disposal of all proceedings in a timely manner;

(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(3) The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

(4) The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), are the following, so far as they apply in relation to civil proceedings:

(a) the Rules of Court;

(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).

Reasons for the request to give evidence via video link

1. It is not disputed, and I accept, that Ms Keske and Mr Rohloff both reside in Texas.
2. The reasons given in support of the request for Ms Keske and Mr Rohloff to give evidence by video include:

(a) the significant distance between Texas and Perth and the time that would be required to travel;

(b) carer responsibilities and other non-work responsibilities of both witnesses; and

(c) the financial and business costs to Oceaneering Australia of being required to travel to Australia to give evidence.

1. Ms Klimczak deposed in her affidavit of 19 December 2025 that she is instructed and believes that to attend the hearing in person, the witnesses for Oceaneering Australia would be required to fly from the George Bush International Airport in Houston to the Perth International Airport, which would take approximately 25-30 hours, or possibly more, each way. Ms Klimczak annexed to her affidavit of 15 January 2026 flight details for a flight from Houston to Perth via Sydney, which shows a total travel time, including a stopover in Sydney, of over 28 hours. Ms Prewett annexed a more extensive range of flight options to her affidavit of 12 January 2026. The fastest flight available is 24 hours and 55 minutes, and some of the possible flights exceed 60 hours.
2. There is some dispute over the evidence in relation to the time it will take Ms Keske and Mr Rohloff to travel from their home or office to the airport in Houston, with Ms Klimczak deposing that she is instructed that it would take them one to two hours each way from their residences in Houston to the airport and Ms Prewett deposing, based on a search of Google Maps, that it would take only 14 minutes from Oceaneering International's office in Houston to the airport. Ms Prewett deposed that she did not know why Ms Klimczak deposed that it would take each witness an additional one to two hours from their residences to the airport and, in circumstances where the airport is only 15 minutes from the office, that '[c]learly the witnesses must already travel 46 minutes to 1 hour 46 minutes every day to work'.
3. I place no weight on any dispute between the parties as to travel time between the witnesses' residences and the airport in Houston. While I cannot place any significant weight on Ms Klimczak's evidence, given the lack of identification of any source of the evidence or any documentary evidence to corroborate the assertions, Ms Prewett only provided evidence relating to the travel times from the office, not the residences and this evidence does not necessarily undermine the evidence in Ms Klimczak's affidavit. In any event, if the witnesses took the quickest flights to Perth, they will still be required to spend well over 25 hours travelling door to door (and presumably, there will also be time spent at the airport before and after the flights, which has not been referred to by the parties). That is a significant travel time.

Mr Rohloff's carer and other responsibilities

1. Ms Klimczak deposed that she is instructed that Mr Rohloff has carer responsibilities for his 87 year old mother, who lives alone in Houston and has chronic health conditions. He is often required to take his mother to doctor's appointments or to the hospital and his mother has required greater support since his father passed away 18 months ago. Ms Klimczak was instructed that, because of this, Mr Rohloff is unable to be away from Houston for extended periods of time (although what is meant by 'extended periods' was not quantified).
2. Ms Klimczak was instructed that Mr Rohloff's mother's condition had worsened since her husband (Mr Rohloff's stepfather) passed away on 16 July 2024. She has had 12 unplanned hospital visits in the last 12 months, the most recent one occurring in the same month as the hearing of the interlocutory application. The timing of her hospital visits is unpredictable and her health status can change significantly in 24 hours. Aside from Mr Rohloff, the only other person who provides care for his mother is one of Mr Rohloff's sisters, who lives in Houston but has to travel frequently and sometimes at short notice.
3. Ms Klimczak deposed that she is instructed that Mr Rohloff also has carer responsibilities for his three year old grandson who lives with him. Mr Rohloff's wife is able to look after their grandson on weekdays. While Mr Rohloff's daughter may be able to assist on the weekend, if she cannot, Mr Rohloff would need to look after his grandson. Attending Court in person is likely to require travel on the weekend.
4. Ms Klimczak deposed that Mr Rohloff lives on and operates a working farm with livestock and is required to be present on the farm to ensure the daily operations remain ongoing. Mr Rohloff's wife and son may be able to assist with some farm duties, they are not able to assist with medical issues related to the animals.
5. Ms Klimczak deposed that because of these responsibilities, Mr Rohloff has not travelled internationally for work since commencing at Oceaneering International. Mr Rohloff has undertaken three interstate trips for work purposes during his three and a half years at Oceaneering International. I do not repeat the detail in Ms Klimczak's affidavit, but I consider it to be relevant that each trip was for five days or less and to places that were a five hour drive from Houston and/or a flight of approximately two hours.
6. Ms Klimczak also deposed that Mr Rohloff has undertaken a number of personal trips to Michigan of around one week's duration to support his biological father when he had cancer. The flight to Michigan is approximately 2 hours and 40 minutes from Houston.
7. Notwithstanding the concerns regarding the weight that should be attributed to Ms Klimczak's evidence, I accept that Mr Rohloff has carer responsibilities to his mother and his grandson and that he is responsible for animals on his farm. On the evidence before me, I would not find that Mr Rohloff's responsibilities to his grandson and his farm would be a sufficient reason to allow him to give evidence by video link. However, I place significant weight on his carer responsibilities to his mother. In particular, I accept that if Mr Rohloff travelled, he may have to return to Texas on short notice if his mother had a medical incident. The significant travel time between Perth and Texas should be taken into account in considering the potential impact if Mr Rohloff had to return to Texas on short notice.

1. Ms Klimczak deposed that she is instructed that Ms Keske has carer responsibilities for three young children, who are not of driving age and each attend different schools and participate in sports and after school activities, to which Ms Keske is required to transport the children. Ms Klimczak deposed that Ms Keske's husband works and Ms Keske would therefore be required to arrange childcare and transportation for her three children if she was required to attend the hearing in person.
2. Ms Klimczak also deposed that Ms Keske has been on one international business trip in 2024 for approximately two weeks and three international business trips in 2025, each for one week or two weeks. Ms Keske also took between one and three interstate trips in those years. She requires two weeks' notice to make arrangements for trips that are three to five days' duration and four weeks' notice for trips that are of longer duration. With sufficient notice, relatives of Ms Keske or her husband have flown to Houston to assist with the children when Ms Keske has travelled for work on some occasions in the past.
3. The evidence before the Court suggests that Ms Keske's family and carer responsibilities do not prevent her from travelling internationally if she makes appropriate arrangements for assistance.

1. Ms Klimczak deposed that the cost of the two witnesses attending the hearing would be approximately $15,300 if they fly economy class and $48,300 if they fly business class, including flights, airport transfers, accommodation for 5 nights and meals and other incidentals.
2. There is no evidence before me of any agreement or policy that would indicate whether Ms Keske and Mr Rohloff are entitled to fly business class or whether they are expected to or are willing to fly economy. In the absence of any evidence of any legal or policy reason why the witnesses would need to fly business class, I proceed on the basis that Oceaneering Australia or Oceaneering International could choose to fly them in economy class if cost is an issue.
3. Ms Klimczak also gave evidence that Oceaneering Australia would face financial implications and significant operational disruption as a result of their two witnesses, who are senior and experienced human resources professionals with global remits over Oceaneering International and its subsidiaries, being unavailable to perform their usual duties and responsibilities while travelling to and from Perth. Ms Klimczak deposed that the time difference between Houston and Perth would make it extremely disruptive for Ms Keske and Mr Rohloff to provide evidence in Perth while also attempting to perform their usual duties during Houston business hours. On the other hand, if they were permitted to give evidence remotely, they would be able to maximise their ability to continue to perform important and time-sensitive aspects of their roles.
4. I accept that the costs of attending the hearing in person for both of Oceaneering Australia's witnesses may be high, but that there is no evidence before the Court to suggest that bearing these costs would impose any significant hardship on Oceaneering International or any of its subsidiaries. While there is limited evidence before the Court at this stage in relation to the quantum of damages Ms Prewett seeks if she is successful in her application, there is nothing before the Court to suggest that the cost of requiring either or both of Ms Keske and Mr Rohloff to give evidence in person would be disproportionate in any way.
5. I also accept that there may be some business costs associated with Ms Keske and Mr Rohloff being required to give evidence in Court. I do not consider that those costs would, of themselves, be a reason not to require either witness to attend to give evidence in person. Every time any employed person is required to give evidence in Court, there is an impact on their ability to perform their ordinary duties. The suggestion of Oceaneering Australia appears to be that if Ms Keske and Mr Rohloff give evidence remotely, they will be able to attend to their usual business duties during the day and give evidence in the evening Houston time. Whatever arrangements are made for Ms Keske and Mr Rohloff to perform their ordinary duties around their court commitments is a matter for them, Oceaneering International and the applicable employment laws that govern their employment. That is the case irrespective of whether they give evidence in person or via video. In either case, the Court's expectation is that they be available to give evidence in this matter when they are required to do so.
6. Ms Klimczak gave evidence that Ms Keske and Mr Rohloff have never travelled internationally at the same time, as they are each other's 'back up' when they travel. There may be business disruption if they are required to travel at the same time.
7. As can be seen from the orders I made, this issue will not arise as I have given Mr Rohloff leave to appear by video. However, for the avoidance of any doubt, in exercising my discretion in this matter, I placed no weight on the potential for business disruption should Ms Keske and Mr Rohloff both be required to travel to Perth. Business arrangements that need to be accommodated while Ms Keske and Mr Rohloff have commitments in this Court are a matter for Oceaneering International and there is no evidence before the Court to suggest that suitable arrangements could not have been made by Oceaneering International. There is no evidence that no other person would be available to perform any urgent duties of Ms Keske or Mr Rohloff. Even if there was no other person, if there were concerns about Ms Keske and Mr Rohloff being on flights at the same time, there is no evidence to explain why their travel arrangements could not have been staggered to ensure that they were not both in transit at the same time.

Centrality of the witnesses' evidence to Oceaneering Australia's case

1. Ms Keske and Mr Rohloff are the only two witnesses for Oceaneering Australia in this matter. Both parties accept that the evidence of Ms Keske and Mr Rohloff is central to Oceaneering Australia's case, particularly in relation to discharging the reverse onus in s 361 of the Fair Work Act.

Considerations relating to cross-examination, trial management and logistics

1. It is anticipated that Counsel for Ms Prewett will cross-examine both Ms Keske and Mr Rohloff at the hearing. Oceaneering Australia has estimated that half a day for each witness will be required for cross-examination. Counsel for Ms Prewett has indicated that he is more likely to take at least one day to cross-examine each witness.
2. It is anticipated that the witnesses will be asked to look at documents in the course of cross-examination. The volume of documents in this matter is neither insignificant nor extreme, with estimates from the parties that they anticipate preparing a court book which may comprise approximately 1000 pages or more. Ms Keske's affidavit is 156 pages and Mr Rohloff's affidavit is 248 pages.
3. There are steps that can be taken to ensure that the witnesses have access to documents if they give their evidence by video. The volume of documents is such that the witnesses appearing remotely can be expected to locate any documents to which they are referred, with appropriate oral guidance from Counsel and the Court, although it is likely to be easier to manage documents if the witnesses attend the Court to give their evidence. The Court acknowledges that the hearing in this matter is not of the same length and complexity as that in Southernwood v Brambles Limited (No 2) [2022] FCA 973 (Southernwood), to which both parties referred in their submissions. Nevertheless, the hearing is likely to run more smoothly and efficiently, at least with regard to the management of documents, if the witnesses attend in person.
4. There were other valid issues raised by the parties relating to trial management, which can be managed with appropriate steps by the Court and the parties' lawyers if required. For example, being in a court room will often reinforce to a witness the seriousness and solemnity of the court process. Formality can sometimes be lost when people appear in Court remotely (as witnesses or as self-represented litigants). However, that is something that can be managed with appropriate comments from the bench and through the legal representatives ensuring that witnesses they call are appropriately informed about the solemnity of court proceedings. Oceaneering Australia also raised concerns about its witnesses potentially having to travel twice if the hearing does not conclude within the scheduled three days. That is a risk that has been reduced since I made the orders the subject of these reasons, as the hearing has been relisted as a five-day hearing. However, in my view, whatever the length of the hearing, if the Court and Counsel appearing for the parties are aware that witnesses have travelled a significant distance to give evidence, the Court and Counsel can take steps in the conduct of the hearing to ensure that the evidence is completed while the witnesses are in Australia.

Considerations relating to the assessment of credibility

1. Both parties have made submissions relating to possible issues in assessing the credibility of the witnesses in this matter. It is anticipated that credibility will be in issue.
2. Oceaneering Australia submitted that if the witnesses are required to attend in person, they may suffer from jet lag, which may in turn impact the quality of their evidence. Oceaneering Australia submitted that if the Court was willing to slightly adjust its sitting times, the witnesses could give evidence from, for example, 8am to 2pm Perth time, which would correspond to 6pm to midnight Texas time. Oceaneering Australia submitted that this will ensure the witnesses are not fatigued when giving evidence and thereby improve the quality of the evidence. I acknowledge this submission, but also acknowledge that if Oceaneering Australia is concerned about jet lag, its witnesses may choose to fly a day earlier.
3. Oceaneering Australia further submitted that it assumes the risk if evidence given by video does not present as effectively as evidence given in person, noting the observation of Besanko J in Robert-Smith v Fairfax Media Publications Pty Limited (No 10) (2021) 151 ACSR 79; [2021] FCA 317 at [57] that, 'if it is apparent that evidence should be given little weight because of the medium through which it is given, then it is open to the Court to proceed in that way'.
4. Ms Prewett submitted that there will be 'almost an inevitable disadvantage' to the cross-examiner conducting cross-examination via video link: Southernwood at [50]. She submitted that the Court may also suffer from this disadvantage. I acknowledge this submission of Ms Prewett and the observations of Murphy J in Southernwood. This is a consideration relating to fairness and justness between the parties that weighs in favour of requiring the witnesses to attend Court in person. However, it is just one consideration and the perceived disadvantage is not inevitable.
5. Many of the issues raised on behalf of Ms Prewett are discussed in the case law considered by Judge Forbes in Marzo, extracted above. The authorities are mixed as to the advantages and disadvantages of assessing credibility by way of video link. In my experience, the Court can adequately assess credibility where a witness gives evidence by video if there are no difficulties with technology and provided that the witness is sitting close to the camera. Of course, even with the evidence that the witnesses have reliable technology, there may be unexpected interruptions during the course of the evidence. It is often preferable for witnesses to give evidence in person, but any difficulties that may arise from giving evidence remotely are not so extreme that it would be unfair to allow a witness to give evidence by video in an appropriate case.

1. Both parties have raised concerns relating to fairness between them, which in large part stem from the conferral between the parties prior to Oceaneering Australia filing the interlocutory application.
2. It is not disputed that:

(a) on 14 October 2025 Oceaneering Australia's lawyers wrote to Ms Prewett's lawyers asking if Ms Prewett would consent to Oceaneering Australia's witnesses giving evidence by video; and

(b) on 15 October 2025 Ms Prewett's lawyers replied, indicating that Ms Prewett would not oppose an application for Oceaneering Australia's witnesses to give evidence by video.

1. Ms Prewett subsequently changed her position after the interlocutory application was filed.
2. Oceaneering Australia submitted that the fact Ms Prewett indicated the application would not be opposed, and then changed her position, weighs heavily in terms of fairness between the parties. It further submitted that the Court should not draw any negative inference against it for not filing the interlocutory application until 22 December 2025.
3. Ms Prewett submitted that Oceaneering Australia was on notice for approximately 10 weeks that it would need to make an application for leave for its witnesses to appear by video and therefore any inconvenience that arises due to 'short notice' is entirely of Oceaneering Australia's own making.
4. I draw no adverse inference against either party in relation to these matters. It is understandable that Oceaneering Australia focused on preparing its substantive evidence to comply with Court orders rather than preparing the interlocutory application in circumstances where it understood the interlocutory application would not be opposed. Likewise, it is understandable that Ms Prewett may have changed her position upon seeing the evidence filed by Oceaneering Australia. I treat this consideration as neutral.

1. There is a greater chance that the hearing will proceed efficiently if the witnesses give evidence in person. However, taking into account all of the considerations discussed above, it would be possible for the hearing to still proceed efficiently if the witnesses give evidence by video, with appropriate trial management by the Court and preparation by the parties. I am satisfied that the Court could permit the witnesses to give evidence without there being any significant adverse impact on the conduct of the hearing or the ability of the Court and Counsel to assess the witness's credibility. I do, however, take in account the observations of courts, including in Tan and Marzo, that the attendance of witnesses to give evidence in person remains the primary and desirable means by which evidence is given, and that there should be a good reason to permit evidence to be given by video link.
2. In the circumstances of this case, taking into account the centrality of Ms Keske's and Mr Rohloff's evidence to Oceaneering Australia's case, that cross-examination of each witness may take a day, and that there may be a number of documents put to the witnesses, in my view, it is preferable that the witnesses attend Court in person, unless there is a good reason to permit otherwise. This is the case notwithstanding that the Court could effectively facilitate the giving of evidence by video link and that it would be more cost efficient to Oceaneering Australia for its witnesses to give evidence remotely.
3. I am satisfied that there is a good reason to permit Mr Rohloff to give evidence by video link. That evidence relates to his carer responsibilities to his mother and the possibility, which cannot be dismissed as remote, that he may be required to return to Texas urgently if his mother has a medical incident. The significant travel time between Perth and Texas may be a significant barrier to Mr Rohloff's urgent return to Texas, should the need arise.
4. Ms Keske also has carer responsibilities to her three children and the Court does not minimalise these responsibilities. The Court accepts that it would be more convenient for Ms Keske to avoid having to travel to attend Court. However, the evidence before the Court does not present a good or compelling reason to permit Ms Keske to give evidence remotely. The evidence suggests that Ms Keske will be able to make appropriate arrangements for others to assist her husband with the care of her children and the transportation of her children to their various sporting and other commitments, as has happened when Ms Keske has travelled overseas for work. I am not satisfied it is appropriate to allow Ms Keske to give evidence by video.
5. I note for completeness that Oceaneering Australia's primary position was that both witnesses should be permitted to give evidence by video. However, it advanced an alternative position that only Mr Rohloff give evidence remotely and that Ms Keske give evidence in person, but the hearing be adjourned to give her more time to make arrangements for the care of her children. One justification for this alternative position is that Ms Keske's evidence is more central to Oceaneering Australia's case, as Ms Keske is the person who made the decision to terminate Ms Prewett's employment. The orders I made in this matter were not based on this alternative proposal and the decision to adjourn the hearing was made subsequently to the orders I made in relation to the interlocutory application for different reasons.
6. I acknowledge that many of the considerations relating to Ms Keske giving evidence by video link and Mr Rohloff giving evidence by video link are substantially the same. The sometimes competing considerations of fairness, justness and efficiency that I take into account for the purposes of s 190 of the FCFCOA Act are the same in the case of each witness. The reason for the different outcome is essentially that Mr Rohloff presented a stronger reason as to why he should be permitted to give evidence by video link.

1. For these reasons, Ms Keske will be required to travel to Perth to give evidence in person and Mr Rohloff is permitted to give his evidence by video link.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.