Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd

REASONS FOR JUDGMENT 1 I have fixed for hearing before me, beginning on 9 October 2000 and for two days thereafter, a proceeding under the Trade Practices Act 1974 (Cth). 2 Long ago, directions were given which had the effect that the evidence in chief of all witnesses in the proceeding was to be given by affidavit and, pursuant to that direction, the applicant filed and served a number of affidavits. The deponent of one of those affidavits is Dr Anne Catherine Roulin. She is a resident of Switzerland and her evidence is of an expert nature. 3 The respondents recently made the applicant aware that they wished to cross-examine Dr Roulin on her affidavit. Armed with knowledge that the respondents wished to cross-examine Dr Roulin, the applicant suggested to the respondents that the cross-examination of Dr Roulin should take place by video link. However, the respondents were not prepared to accede to that suggestion and so the applicant filed, on 1 September 2000, a notice of motion, returnable today, seeking an order that the "evidence" of Dr Roulin (which was, I believe, intended, strictly speaking, to be a reference to the cross-examination and any re-examination of Dr Roulin) should be taken by video link. 4 (Of course, I do not, by what I have just said parenthetically, exclude the possibility that there might be some application by the applicant, if Dr Roulin's evidence is to be taken by video link, to put some additional oral questions to her in chief.) 5 The applicant's notice of motion identifies those statutory provisions on which reliance is placed in seeking the making of the order. It first refers to the powers conferred on the Court by s 47 of the Federal Court of Australia Act 1976 (Cth) ("the Act"). (The first sentence of subs 47(1A) of the Act provides: "The Court or a Judge may, for the purposes of any proceeding, direct or allow testimony to be given by video link …".) The notice of motion refers also to O 24, r 1A of the Federal Court Rules ("the FCRs"). (That rule provides: "The Court may in its discretion take evidence from a witness by… video link … in accordance with such procedures as the Court directs".) 6 (I note, incidentally, that O 24, r 1A of the FCRs was enacted in 1989, while subs 47(1A) was not enacted until 1994, so that the latter provision appears effectively to have superseded the former.) 7 In seeking the order which it has sought, the applicant has relied primarily on two matters: first, the additional cost associated with Dr Roulin's cross-examination taking place with her physically present in Sydney; and, secondly, what I may describe as professional inconvenience, both to Dr Roulin and to her employer, by reason of that fact that, as is established on the evidence before me, Dr Roulin is scheduled to conduct an important business meeting at a time and place which would make it impossible for her to be physically present in Sydney during the three days set aside for the hearing of the matter. 8 (Of course, if Dr Roulin were required to be physically present in Sydney for her cross-examination, then, given her commitment to which I have just referred and the applicant's inability to compel her to come to Sydney, it is apparent that the presently scheduled hearing of the proceeding would either need to be aborted or, at least, be unable to conclude within the three days set aside, nonetheless though the setting aside of those three days on the basis that they would be adequate for the purpose was done with the agreement of both sides of the record some considerable time ago.) 9 In opposing the making of the order to which I have been referring, counsel for the respondents relied on six matters, as follows. 10 First, he submitted that Dr Roulin's evidence was likely to be central to the issues in the proceeding. 11 Secondly, although he acknowledged that Dr Roulin's credibility was unlikely to be an issue in the proceeding, he nevertheless characterised her evidence as "controversial". 12 Thirdly, he characterised her evidence as "intricate", in the sense, I infer, that it was scientific evidence which was difficult to understand. 13 Fourthly, he estimated that the time which he would require to conduct an appropriate cross-examination of Dr Roulin would be at least two hours. (Of course, I do not treat counsel as bound by that estimate, which he gave simply for the purpose of the present motion. Everything will obviously depend on the progress of the cross-examination as it takes place and, perhaps, on whether, if any request is made by the applicant to obtain further evidence in chief from Dr Roulin orally, I grant such request.) 14 Fifthly, he submitted that the inconvenience which it had been established would be caused if Dr Roulin were required to be physically present in Sydney for the purpose of her cross-examination was not great by comparison to that inconvenience which it had been established would be caused to witnesses in other proceedings in which applications like the present had been granted. 15 Sixthly, he submitted that, if the applicant were ultimately to succeed in the proceeding, it was likely that most of its costs associated with Dr Roulin's attendance in Sydney would be recoverable from the respondents. 16 Having considered the various matters to which I have referred above, in my view, this is an appropriate case in which to make an order of the sort which has been sought by the applicant. 17 Relatively recently, in McDonald v Commissioner of Taxation 2000 ATC 4,271, Finn J was concerned with a challenge to a decision of the Administrative Appeals Tribunal, based in part on that decision's having been made after the Tribunal had taken McDonald's evidence by video link. In the course of rejecting that challenge, his Honour said (at 4,276, [21]-[22]), "As is now well known, the video-link facility is being utilised with greater regularity and acceptance in court proceedings - particularly of this Court - as judges have come to acknowledge that apprehended disadvantages from the use of video-links have not materialised as expected: see generally the discussions in B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95 at 105ff and in Studniberg v JP MorganAustralia Ltd [1998] NSWIR Comm 483 [also reported in (1998) 84 IR 86]. Significantly, the facility has been used notwithstanding that a witness' evidence, for example, (a) was 'central' to a case, (b) was contentious, (c) would be expected to occupy three to four days and (d) was to be given in a serious criminal matter: see R v Kyu Hyuk Kim (1998) 104 A Crim R 233. Equally judges have accepted in relation to trials that a video-link is, for practical purposes, much the same as hearing evidence in court: see Lord Donaldson MR's observations quoted in B's case, above, at 107; and that it does not pose a significant impediment to the assessment of a witness' demeanour: see B's case at 109; see also the observations of Young J in Bayer AG v Minister for Health [reported in (1988) 96 FLR 50 at 116] as quoted in Studniberg's case, above." 18 (I note, incidentally, that the centrality to the case and the contentiousness of a witness's evidence did not dissuade Coldrey J of the Victorian Supreme Court from making, in Kyu Hyuk Kim,an order for video link evidence, those two matters being precisely the same as two of the matters relied on by the respondents in the present proceeding. I add also that Lord Donaldson MR's observations, quoted in the New Zealand case, had been made in an unreported 1992 Court of Appeal decision, Henderson v SBS Realisations Limited. There, the Master of the Rolls had been distinguishing between the use of documentary evidence, on the one hand, and the use of video link evidence, on the other. As quoted in the New Zealand case, the Master of the Rolls had said, "[I]f you have a critical matter to be proved, it is most unsatisfactory that it should be done by documents. A video link is quite different. A video link is, for all practical purposes, very much the same as hearing evidence in court….") 19 I find myself in entire agreement with the remarks of Finn J which I have quoted above. I may add also that, in two of the cases mentioned by his Honour, B and Bayer AG, the witnesses in respect of whom orders were made that their evidence be taken by video link were experts, just as in the present case. 20 Although Finn J did not mention them in the course of his reasons, there are also a number of reasoned decisions in this Court in which, over opposition, orders have been made for evidence to be taken by video link. 21 The most recent of them which I have been able to find is my own decision in Mewett v The Commonwealth (28 October 1998, unreported), in which I made orders which had the effect that the evidence of both lay persons and an expert should be taken by video link. 22 Earlier, Einfeld J had made a similar order in Meehan v GPR Management Services Pty Ltd (31 May 1994, unreported), as had Ryan J in ICI Australia Ltd v Commissioner of Taxation (29 May 1992, unreported). The latter is the earliest such case in this Court which I have been able to find. It is worth noting in particular two points made by Ryan J in making his order. First, he expressed the view that the physical remoteness from Melbourne of the witness the subject of the direction would not "unduly disadvantage either cross-examining counsel or the Court in assessing … credibility", but, secondly, he said that, "… if the expedient of resort to video link should prove unsatisfactory or if the trial judge should feel that he would be disadvantaged in assessing [the witness's] credit, arrangements can still be made at some time after next week for [the witness] to be further cross-examined in Melbourne on some subsequent date." 23 I emphasise that the order which I propose to make now would not prevent the respondents from making an application of the type obviously contemplated by Ryan J in the ICI Australia case, once the cross-examination of Dr Roulin had occurred by video link. If I were to be satisfied, as a result of what had occurred during Dr Roulin's cross-examination by video link, that it was appropriate that Dr Roulin should be required to be physically present in Sydney for further cross-examination, then I would be strongly predisposed to require such a course. 24 Finally, I should mention that in Federal Commissioner of Taxation v Grbich (1993) 31 ALD 97, Beaumont J had rejected a challenge very similar to that with which Finn J was concerned in McDonald, taking the view that a party to a proceeding before the Tribunal would not be deprived of an effective right to cross-examine by use of a video link. 25 In light of the attitude taken in this Court in the five cases which I have mentioned above, as well as the attitude manifested in the courts of New South Wales Bayer AG and Studniberg), Victoria (Kyu Hyuk Kim), New Zealand (B) and England (Henderson v SBS Realisations Ltd (13 April 1992, unreported)) in the cases referred to by Finn J in McDonald, I find a strong current of authority in favour of permitting the relatively new video link technology to be used, in the absence of some considerable impediment telling against its use in a particular case. I do not find in this case, having regard to the matters put to me by counsel for the respondents, anything sufficiently out of the ordinary to cause me not to permit Dr Roulin's evidence to be taken by video link. 26 I will therefore make the order sought by the applicant and order the respondents to pay the applicant's costs of the motion. The applicant is to bring in short minutes giving effect to these reasons and also prescribing procedures for the taking of Dr Roulin's evidence by video link. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.