Should the order be made?
17 Notwithstanding that I have the power to make the proposed order, I am not satisfied that this is a proper case in which to exercise it.
18 The authorities and the relevant principles were recently summarised by Gordon J in Kirby v Centro Properties Ltd (2012) 288 ALR 601 ("Centro").
19 There are two schools of thought about the approach to evidence by video link. On the one hand, there is the view that, given the advanced state of video link technology and the convenience and savings in costs and time, the Court will only decline to make an order if the opposing party makes out a substantial case against its use. The case most frequently cited in support of this view is the decision of Katz J in Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 ("Tetra Pak"). But his Honour was there dealing with an application to take evidence from an expert witness. In Versace v Monte [2001] FCA 1454 where, at [16], Tamberlin J cited Tetra Pak as authority for the proposition that a substantial case needs to be made to warrant the Court declining to make such an order, there was substantial agreement between the parties that this course should be followed. On the other hand, this approach has been rejected in a number of cases in this and other courts. In Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd (2001) 53 NSWLR 1 Palmer J ("AMI v Marconi") declined to follow Tetra Pak and said (at 5) that "where the matter in contest involves major issues of credit … it is still desirable, in my opinion, to have the witness in Court for examination, unless good reasons are shown to the contrary". Since then, several judges in this Court have taken a similar stance. In Australian Competition and Consumer Commission v World Netsafe Pty Ltd (2002) 119 FCR 303 ("World Netsafe") Spender J disagreed with Katz J and the authorities on which he had relied in Tetra Pak and said he thought it "right to recognise that there are deficiencies when evidence is taken by video-link when compared with evidence given viva voce" (by which he plainly meant in person in the courtroom). The Full Court referred to these remarks with approval in Odhiambo v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 29 at [97] ("Odhiambo").
20 In Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (unreported, NSWSC, Giles CJ Comm D, 11 March 1997) ("Sunstate") in a passage of which Palmer J approved in AMI v Marconi and Spender J in World Netsafe, Giles CJ Comm D said:
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 finding by observance of what is misleadingly called the demeanour of the witnesses, upon which the taking of video evidence may impact.
21 His Honour contrasted the position where, the evidence is "relatively uncontroversial", the cross-examination unlikely to be lengthy or "no real issue of credit is involved".
22 Although these remarks were made 15 years ago, they apply with just as much force now.
23 Following an extensive review of the authorities, in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 ("Campaign Master") Buchanan J concluded (at [77]) that their trend was to emphasise the need for a persuasive case to be made out to use video link to take evidence and particularly to order it over the objection of the cross-examining party and (at [78]) that a case must be made out for the use of video link evidence if it is opposed by an affected party. Whether or not, as a matter of law, there is such a requirement need not be determined here. In every case, as Gordon J observed in Centro at [11] (cf. Australian Competition & Consumer Commission v StoresOnline International Inc [2009] FCA 717 at [14]), the question will be: "what will best serve the administration of justice consistently with maintaining justice between the parties" and that involves a balancing exercise. In this case, in my view, the balance swings against taking the evidence by video link.
24 First and foremost, the evidence sought to be adduced from Ms Aguirre is highly controversial. As I mentioned earlier, there is no affidavit or signed statement from her. At a directions hearing on 24 April 2012, counsel for the respondents told me that one of the Mexican witnesses would not talk to ROST's lawyers and one might. He said he might be able to "get him" but may not be able to take an affidavit from him. It was in this context that outlines of evidence came to be served from Ms Aguirre and Mr Gamboa.
25 Ms Aguirre's evidence involves allegations of sexual harassment. The outline refers to two incidents in late 2008 when she was performing administrative duties for Australian Minerals Group (AMG) in Guadalajara, the capital of the Mexican state of Jalisco. In the first incident the outline recites that Mr Stuke followed Ms Aguirre into a small bathroom and made comments of a crude and sexual nature that made her feel uncomfortable in the workplace. The comments have never been particularised. The second is alleged to have taken place at a business dinner in a restaurant where, it is claimed, Mr Stuke came up close to Ms Aguirre and touched her "in an inappropriate manner" (again unparticularised) causing her to become upset. The second incident is said to have been reported to Robert Brozky, after which Mr Stuke is said to have caused AMG to give Ms Aguirre an unspecified sum of money. The final statement is that Ms Aguirre ceased working for AMG in late 2008. Mr Stuke denies all the allegations of impropriety.
26 Mr Brozky has filed an affidavit in the proceeding which ROST intends to read. In it he relates the conversation he had with Ms Aguirre after the alleged restaurant incident. My attention was drawn to inconsistencies between what is stated in the outline and what appears in his affidavit. Unsurprisingly, counsel for Mr Stuke, Mr Darams, indicated he wished to cross-examine Ms Aguirre on those inconsistencies.
27 The evidence of Ms Aguirre is not central to the case ROST brings. It raises an issue that was not even pleaded in the Amended Response to Application filed in the Federal Magistrates Court in December 2010, nor in ROST's cross-claim and is particularised as the 54th of over 70 allegations of Mr Stuke's failure to perform his duties in the Second Further Amended Notice of First Respondent's Cross-Claim filed in Court last Friday. On the other hand, what Ms Aguirre says (if accepted) may well have justified instant dismissal so that, as Mr Darams submitted, that would (or at least might) mean that ROST could succeed on the basis of her evidence alone. This means that the evidence potentially has very serious ramifications for Mr Stuke and Ms Aguirre is an important witness. In the circumstances Mr Stuke, who disputes the truth of what it is said she will say, should be able to test her evidence without the limitations inherent or possible in video transmission.
28 In resolving the issue of credit, the demeanour of the witness may be of some importance.
29 Demeanour is probably overrated as a tool for evaluating whether a witness is telling the truth. See McClellan CJ at CL, Who is telling the truth? Psychology, common sense and the law, www.lawlink.nsw.gov.au/lawlink/Supreme_Court/11_sc.nsf/pages/SCO_mcclellan020806.
30 But the primacy the appellate courts still afford decisions of trial judges on questions of credit is in part due to "the subtle influence of demeanour" (Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178, 179; Fox v Percy (2003) 214 CLR 118 at [65]). Subtle changes in demeanour may be apparent in a courtroom and not so apparent if the evidence is given by video link (as the Full Court of the Family Court accepted in K v S (2001) 161 FLR 71 at [24]), although, as Austin J observed in Australian Securities and Investments Commission v Rich [2004] NSWSC 467 at [28], they are likely to be picked up by a video camera. And what if there is a delay in giving a response to a critical question? It may be impossible to tell whether the delay is due to evasiveness or uncertainty on the part of the witness or merely to difficulties with the transmission. Giles CJ Comm D adverted to the problem of delay in his judgment in Sunstate.
31 In my view the cross-examiner is almost always at a disadvantage (and often a significant one) cross-examining a witness giving evidence from a remote location where credit is in issue. I agree with Buchanan J in Campaign Master when he said at [78]:
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.
32 As Perram J said in Blackrock Asset Management Australia Services Limited v Waked (No 2) [2011] FCA 479 at [46], these are powerful considerations in every case. That is particularly so where, as here, the credit of the witness is of central importance. In her conversation with Ms Aguirre in May Ms Douglas likened the experience of giving evidence via video link to having a telephone conversation by Skype. Whilst the analogy may have been useful and is understandable, it is an imperfect one and may have unintentionally given the witness an impression of informality.
33 Secondly, the proposal here is that the witness gives evidence through an interpreter. I agree with Mansfield J that giving evidence through an interpreter by video link would be "a most unsatisfactory method of resolving contentious and critical issues of fact" (Mastipour v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 140 FCR 137 at [37]). In Odhiambo the Full Court referred at [99] to the limitations of taking evidence by video from applicants in the Refugee Review Tribunal, "particularly where language and demeanour may be relevant if not significant in assessing the veracity of what the applicant … is saying". Admittedly that remark was made in a different context where additional considerations are involved but the point is pertinent nonetheless. Non-verbal communication is likely to be important and may be more difficult to discern in a video transmission.
34 ROST points out that in New South Wales complainants in criminal proceedings for certain sexual offences are entitled to give evidence by closed circuit television and the rule is that evidence is taken in this way except where the witness chooses or the Court orders otherwise. See Criminal Procedure Act 1986 (NSW), s 294B. But it is not the rule in civil proceedings and not the rule in this Court. In this Court giving evidence by video link is the exception. As in Campaign Master, the applicant (ROST) did not dispute that normally the other party could insist on the physical presence of a witness for cross-examination.
35 Thirdly, Mr Darams indicated that he might wish to have Ms Aguirre illustrate on paper what she alleges occurred between her and Mr Stuke. Although a document camera is available at Federal Court sites, the evidence annexed to Ms Douglas's affidavit of 5 October 2012 states that the technology is useful for transferring and viewing images between sites but is unsuitable for viewing documents.
36 Fourthly, although the difference in costs is substantial, in the scheme of things the additional cost of bringing the witness to Australia is not great. Moreover, the estimate of costs for video transmission may well be understated, especially in the absence of an affidavit, signed statement or even proof of evidence. The evidence may take longer than Mr Ivantsoff estimated, particularly as an interpreter will be involved. After all, lawyers with the best will in the world frequently underestimate these matters. In any event, although cost is an important consideration, so, too, is fairness to all parties.
37 Fifthly, although the Court may take into account the employment commitments of the witness (see Centro at [10]), I do not think they are entitled to a great deal of weight. Giving evidence is inconvenient to any witness and no doubt the longer the witness is required the more inconvenient it will be. Courts will try to accommodate the convenience of witnesses wherever possible but the primary consideration will always be the interests of justice.
38 Sixthly, I am not persuaded that if the application were refused ROST would not be able to call the witness. I am not satisfied on the evidence that she would not come if asked. In the first place, as Ms Aguirre apparently requires an interpreter to give evidence at the trial and in the absence of evidence about her facility with the English language, it is difficult to place any weight on the evidence of Ms Douglas's conversation with her. In any case, there is no evidence that the statements that she cannot take time off were based on anything more than supposition or conjecture. I appreciate that it would be very inconvenient to her to travel to Australia. ROST submitted that, if she did, her stepdaughter would be left without a primary carer. But there is no apparent reason why, if necessary, the child could not be cared for by her father or mother or other relative for the three days that she would be away from home or, for that matter, accompany her stepmother to Australia (although that would obviously increase the cost of air travel). Further, steps could be (or could have been) taken to compel Ms Aguirre's attendance. Mexico is a signatory to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. Counsel for ROST indicated that the procedure under the Convention would take two to four months to complete. I was advised that no application had been made "because we did not want to trouble her" and it was not "the most conducive way to have an independent witness give evidence". I found this submission unpersuasive. The interlocutory application was filed very late, while I was (to the knowledge of the parties) on leave and listed for hearing only six working days before the trial is due to start. If the application had been made at or before the time the proceeding was set down for trial, ROST would not be in this position now.
39 For these reasons, the application is refused. I reserve the question of costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.