Relevant principles
27 Pursuant to s 47A(1) of the Act the Court has power to permit testimony to be given by video link. Subject to s 47C(1), the exercise of the power is in the Court's discretion. Section 47C(1) precludes the exercise of the power conferred by s 47A(1) unless the Court is satisfied as to the existence of certain technical requirements in relation to a video link are met.
28 In Kirby v Centro Properties Limited [2012] FCA 60; 288 ALR 601 at [3]-[11] Gordon J reviewed the authorities up to that point. Her Honour noted (at [4]-[5]) that the courts had adopted two broad approaches in exercising the discretion to permit testimony by video link:
[4] The first is that given the advanced state of video link technology and also because of the convenience of the procedure and the savings in time and cost, a substantial case needs to be made out to warrant the Court declining to make an order for evidence to be taken by video link: see Reinsurance Australia Corp Ltd v HIH Casualty & General Insurance (in liq) [2002] FCA 1549 at [10]-[11]; Versace v Monte [2001] FCA 1454 at [16] and Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 at [25].
[5] The other approach has been described as more cautious, and requires good reason to be shown before leave to give evidence by video link is granted: Australian Competition & Consumer Commission v World Netsafe Pty Ltd [2002] FCA 526 at [7]; Sunstate Airlines (Qld) Pty Ltd v First Chicago Australian Securities Ltd (unreported, NSWSC, Giles CJ, 11 March 1997) at 6; Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd (2001) 53 NSWLR 1 at [27].
(Emphasis in original.)
29 At [8] Gordon J cited, with apparent approval, Buchanan J's remarks in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; 181 FCR 152 at [77]-[78]. Buchanan J said the following:
… I think there is a significant difference in emphasis in the two lines of authority. One, essentially pragmatic, matter which arises from the differences of view to which I have drawn attention is where the practical onus of persuasion lies. Despite the undoubted efficiencies available in an appropriate case, the trend of authority seems to me to emphasise the need for a persuasive case to be made out to use a video link to take evidence, particularly to impose it on an unwilling cross-examining party, rather than the reverse.
I share the concerns expressed by Spender J in World Netscape [sic] and by Stone J in Dorajay 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. …
30 Those remarks have been cited with approval by judges of this Court on numerous occasions. For example:
(a) in Blackrock Asset Management Australia Services Limited v Waked (No 2) [2011] FCA 479 at [46], Perram J referred to Buchanan J's remarks as "powerful considerations" and also said:
A trial is, in fact, a public event in which witnesses are confronted by their cross-examiners and in which they give evidence in front of the very people who are involved in the case. The giving of evidence by video link is unsatisfactory in a number of ways. That is not to say that in some cases it is not appropriate.
(b) in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 627; 231 FCR 531 at [16] Besanko J said that the matters identified in Campaign Master and Blackrock Asset were "powerful considerations".
31 It is also worth going back to the earlier remarks endorsed by Buchanan J (at [78]). First, in Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2002] FCA 526; 119 FCR 303 at [7]-[8] where Spender J said:
Notwithstanding observations in those cases that there is essentially no real difference between evidence by video-link and viva voce evidence, I disagree, and I think it right to recognise that there are deficiencies when evidence is taken by video-link when compared with evidence given viva voce.
32 Spender J agreed with the observations of Giles J in Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd, unrep, SCNSW, 11 March 1997 at 4 who said:
The ordinary procedure is [that a witness gives oral evidence before a judge in a courtroom] and there are sound reasons for following it unless cause to the contrary be shown. The conduct of proceedings in open court, available to public scrutiny, is of great importance. Cross-examination may be more difficult when video evidence is taken because documents have to be transmitted or produced in an unfamiliar manner, because of delay in voice transmission, or for other reasons, and the effectiveness of cross-examination as a weapon in the fight for truth should not be unduly hindered. And in many cases the Court is assisted in fact by observance of what is misleadingly called the demeanour of the witnesses, upon which the taking of video evidence may impact. All that said, particularly where the 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 may permit the Court to receive the evidence of a witness that would otherwise not have been available, it may permit the evidence to be received without causing undue inconvenience to witnesses …
(Emphasis in original.)
33 Spender J agreed with the remarks of Palmer J in Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd [2001] NSWSC 651; 53 NSWLR 1 at [27], where his Honour followed the approach suggested by Giles J in Sunstate and said:
...where the matter in contest involves major issues of credit or where documentary material of some volume and complexity is likely to be deployed in Court, it is still desirable, in my opinion, to have the witness in Court for examination, unless good reasons are shown to the contrary.
34 Spender J's remarks in World Netsafe were referred to with approval by the Full Court in Odhiambo v Minister for Immigration and Multicultural Affairs [2002] FCAFC 194; 122 FCR 29 at [97] (Black CJ, Wilcox and Moore JJ).
35 Second, the observations of Stone J in Dorajay Pty Ltd v Aristocrat Leisure Ltd [2007] FCA 1502 at [6]-[8] where her Honour considered "the difficulties that attend the taking of evidence by video link and the cross-examination on that evidence." Her Honour accepted that such difficulties were perhaps less than in the past but said (at [7]-[8]);
In my experience, however, those difficulties are considerable and markedly interfere with the giving of the evidence and, particularly, with cross-examination. They include technical problems such as difficulties with hearing, in presenting documents to the witness, in maintaining transmission over an extended period of time and those arising from time differences. More importantly, even if those difficulties can be overcome or minimised, there are the problems in maintaining a line of cross-examination and the difficulty of assessing a witness where evidence is given by video link. As a matter of justice to both parties these problems are critical. It is perhaps more workable where one is dealing with an expert witness who is generally well-prepared, has written a detailed report and has an expertise and familiarity with the subject that may not be the case with a lay witness. I accept that Mr Rowan may have some of those qualities. He is clearly very experienced in his field and his detailed affidavit suggests that he would be well-prepared.
Nevertheless, issues of credit or something very close to credit will undoubtedly arise in dealing with the asserted contradictions in the evidence to which I have referred. I am not satisfied that justice would be served by allowing this evidence to be given by video link and requiring the cross-examination to be carried out through that same medium.
36 More recently, in Palmer v McGowan (No 2) [2022] FCA 32; 398 ALR 524 at [43], [45]-[47], Lee J expressed similar views. His Honour said:
[43] Not only does receiving the evidence of the witnesses in person maintain fluidity between the witness, counsel and the judge, but there is much to be said about a witness coming into the usually unfamiliar confines of a courtroom, swearing an oath or taking an affirmation in a witness box to tell the truth, and proceeding to give evidence on oath or affirmation in the physical presence of counsel and the judge. There is a solemnity about the giving of evidence, and the formalities reinforce it.
…
[45] In relation to many witnesses, including highly intelligent professionals, I have come to appreciate a somewhat different dynamic between the witness and the cross-examiner than is present at an orthodox hearing. Speaking generally, the witness feels an additional degree of comfort in being physically remote from the courtroom and being in their own surroundings. Incidentally, a tell-tale indication of this more "relaxed" environment is often seen by witnesses being far more casually attired than would be the case if they came into Court. This might be termed the "leisure wear" effect. Further, as much as courts seeks to reproduce the solemnity of a traditional hearing while operating online, at least in my experience, there a distinct difference in atmosphere. It is jejune to assume that exchanges (which may include confrontational exchanges) between two persons in close physical proximity to one another, is the same as exchanges that occur in the less intimate world of a video link.
[46] Related to this point, is that increasingly I have felt a nagging disquiet that I may perhaps be missing something in assessing the evidence of a witness by reference to the tone of voice or non-verbal signals. As time has gone on, it is has become more evident to me that in an audio-visual feed, minor differences in emphasis or tone can be more difficult to appreciate and assess.
[47] It has, of course, become common for scepticism to be expressed about the advantage that trial judges enjoy in seeing a witness give evidence. But despite these well-founded criticisms and the fact that by video a judge can observe the manner of giving evidence remotely, based on my experience in recent times, I consider I have a better prospect of understanding the subtleties and nuances of the sort of evidence to be given in the present case, if it is given in person. Credit is likely to be a factor in resolving at least some issues in this case. It is unnecessary to be more specific for present purposes, but I cannot discount the possibility that in this case (and these assessments are always case-specific) the close and careful assessment of the evidence-in-chief may be relevant in properly fixing any award of damages to either claimant based on consolation for hurt, and evidence given in cross-examination may be an important factor which assists me in justly determining this controversy.
37 Against this, Brambles submitted that following the emergence of the COVID-19 pandemic and the widespread adoption of 'virtual' hearings by courts around Australia, courts have adopted a more pragmatic approach with respect to the exercise of the discretion to hear evidence by video link. It submitted that since 2020, it has been held that:
(a) the courts' experience in facilitating and observing cross-examination of important witnesses by video link is more widespread than it was prior to the pandemic, and it has generally been viewed favourably in this Court and other courts, citing Australian Securities and Investments Commission v Wilson (No 2) [2021] FCA 808; 153 ACSR 649 at [34] per Jackson J. His Honour cited Universal Music Publishing Pty Ltd v Palmer [2020] FCA 1472 at [32] (Katzmann J); Long Forest Estate Pty Ltd v Singh [2020] VSC 604 at [23]; Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd [2020] FCA 1153; 147 ACSR 521 at [49]-[50] (Stewart J); and Sanson v Sanson [2021] NSWSC 417 at [31] (Henry J), and said (at [44]) that "the Court has more experience with taking contentious evidence by video link and more confidence in its efficacy".
(b) the perception of a witness's facial expressions, reactions, bodily movements and gestures may be enhanced by audio-visual technology compared to evidence given in Court, citing Capic v Forward Motor Company of Australia Ltd (Adjournment) [2020] FCA 486 at [19]. There, Perram J said that his impression of evidence given on the various audio-visual platforms had been that the judge was looking at the witness from about one metre away such that his or her perception of the witness's facial expression is much greater than it is in court. But his Honour also said:
What is different - and significant - is that the video-link technology tends to reduce the chemistry which may develop between counsel and the witness. This is allied with the general sense that there has been a reduction in formality in the proceedings. This is certainly so and is undesirable. To those problems may be added the difficulties that can arise when dealing with objections.
(c) difficulties with document management in a virtual courtroom can be overstated, citing Capic at [20]. In this passage Perram J did not accept that document management was much more difficult in a virtual courtroom. His Honour found that the problem of witness in cross-examination bundles is readily soluble with a service such as Dropbox which, while not ideal, did not result in an unfair or unjust trial. However, and importantly, his Honour also said that he could not speak for other judges. As might be expected, some judges are more IT savvy than others and some may find real difficulty in assessing the reliability of a witness while also retrieving documents from Dropbox or some other system. But that problem does not arise in the present case as the documents will be called up to the Judge's screen by Epiq, the e-trial document operator; and
(d) well-prepared cross-examination can be as, or just about as, effective in a virtual setting, citing Auken at [49]-[50], where Stewart J also said that his impression has been that counsel, even those who were initially sceptical, had shared that experience.
38 There are also the remarks of Bromwich J in Tetley v Goldmate Group Pty Ltd [2020] FCA 913 at [16], where his Honour said:
Because it influenced my thinking in deciding this application, I also consulted with a number of my judicial colleagues, several of whom are presently conducting protracted online hearings which also involve questions of credit and cross-examination. Their experience was that there was no great diminution in the conduct of an online hearing compared to a hearing in court, with some of the obvious disadvantages being offset by some real advantages including a clearer view of the witness in the course of giving evidence-in-chief and in cross-examination online.
39 I have no difficulty in accepting that in many cases it will be suitable for evidence to be received via video link, and it is plain that during the height of the COVID-19 pandemic courts were more inclined to grant such applications. It is unsurprising that such applications were more readily granted when one considers the context in which that occurred - the strictest mandatory public health measures ever imposed in Australia, with Australia's international and state borders being closed and travel and in-person gatherings being banned or severely restricted. During the height of the pandemic, judges of this and other courts took a more pragmatic approach to the exercise of the discretion, faced as they were with the undesirable alternative of numerous adjournments, extensive backlogs that might arise from such adjournments, and uncertainty as to the duration of the required adjournment.
40 I do not seek to downplay the significance of the various judicial observations expressing satisfaction, even enthusiasm, in relation to the efficacy of cross-examination via video link, including where issues of credit are involved, but in my opinion they should be understood in the context in which they were made. To an extent that can be seen in Wilson (No 2) where, in an earlier application, Jackson J refused the application to hear a USA-based witness's evidence by video link because he considered there was a real risk that Mr Wilson would not have a fair and proper opportunity to test the evidence of the witness if that evidence was not given in person: see Wilson (No 2) at 2. Later, Jackson J allowed a renewed application in the context that the continuing pandemic and the indefinite closure of Australia's borders meant that the witness could not come to Australia and if his evidence was not heard via video link the trial would need to be adjourned indefinitely.
41 Further, as Lee J noted in Palmer (at [44]), "a number of the particularly favourable judicial references to remote hearings in complex cases were made in 2020, at an early stage of the 'unforeseen mass-pilot of remote hearings'" brought about through the pandemic. His Honour said that the "accumulated experience" of judges and "subsequent reflection" had caused his views and the views of some other judges to change over time.
42 I discussed with some judicial colleagues issues such as the efficacy of cross-examination via video link, the risk of unfairness to the cross-examining party, the advantage for the cross-examined witness or party, and the possibility of increased difficulty for the judge in assessing the reliability of testimony in such circumstances. While I will say that I am not alone in the concerns I express in these reasons, I do not consider it appropriate to represent their views. Even where their views are similar to mine there nevertheless remain some nuanced differences. It is best that other judges speak for themselves if and when the occasion arises. It must also be kept in mind that the views of other judges are of little relevance. As Brambles seemed to accept, different judges may have different experiences and views as to whether they may be hindered in assessing the reliability of testimony given through cross-examination via video link. It is my task to assess the reliability of Mr Martin's and Ms Nador's evidence, and to decide whether effective cross-examination of them may be hindered, not the task of other judges in other circumstances.
43 The courts have taken into account a variety of factors in exercising the discretion under s 47A(1), including the employment commitments of an overseas witness; whether the credibility of the witness is in issue; whether the witness's evidence will be "centrally important" to the case; and whether the use of video link may frustrate or delay the management of documents in cross-examination: see Kirby at [10] and the cases there cited. Each of those can be said to be relevant in the present application.
44 But those factors are neither exhaustive nor prescriptive and the discretion under s 47A(1) is a broad one in which the determining consideration is the interests of justice in the particular facts and circumstances of the case. It involves a balancing exercise as to what will best serve the administration of justice, doing so consistently with maintaining justice between the parties: Kirby at [11]. It must also be guided by the overarching purpose in s 37M, namely, the facilitation of the just resolution of disputes according to the law and as quickly, inexpensively and efficiently as possible: Palmer at [40]. This approach to the discretion is consistent with the remarks of Flick J in Corrigan v Commvault Systems (Australia) Pty Ltd [2011] FCA 107; 192 FCR 71 at [12], with which Besanko J agreed in Fair Work Building Industry Inspectorate at [16]. Those decisions show:
(a) it is for the party seeking a favourable exercise of the discretion to establish the reason for its exercise having regard to the specific facts and circumstances and the overriding consideration of ensuring that justice is done as between the parties to the proceeding; and
(b) there is no presumption nor prima facie case as to the way in which the discretion is to be exercised in the absence of countervailing considerations.