Supreme Court of WA|2004-07-23|Before: Owen J

The Bell Group Ltd (In Liquidation) & Anor v Westpac Banking Corporation & Anor (4) [2004] WASC 162 (23 July 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE BELL GROUP LTD (In Liquidation) & ANOR -v- WESTPAC BANKING CORPORATION & ANOR (4) [2004] WASC 162

HEARD : 31 OCTOBER 2002, 5 & 6 MAY 2003, 16 DECEMBER 2003, 23 FEBRUARY 2004, 3 MARCH 2004, 7 APRIL 2004

BETWEEN : THE BELL GROUP LTD (In Liquidation) (ACN 008 666 993)

* Refer to WASC 93 [2004] for full list of entities

Procedure - Overseas witnesses - Application for taking evidence abroad - Relationship between Evidence Act 1906 (WA) and Foreign Evidence Act 1994 (Cth) - Participating jurisdiction - Recognised court - Taking evidence on commission - Letter of request to foreign State - Video link - Audio link - Advocates' immunity from suit - Defamation - Discretion to hear witnesses by video link or attend in person - Federal jurisdiction - Whether State Evidence Act picked up and applied as surrogate Federal law

Rules of the Supreme Court 1971 (WA), O 29, r 2(1)(c)

Second and Third Plaintiffs by Counterclaim : Mr D E J Ryan SC

Second to Tenth Defendants by Counterclaim : Mr T K Tobin QC

Second and Third Plaintiffs by Counterclaim : Freehills

First Defendant by Counterclaim : Blake Dawson Waldron

Second to Tenth Defendants by Counterclaim : Blake Dawson

Anderson v Eric Anderson Radio & TV Pty Ltd [1965] HCA 61; (1965) 114 CLR 20

Anderson v Gorrie [1895] 1 QB 668

ASIC v Rich [2004] NSWSC 467

Austral Pacific Group Ltd (In Liquidation) v Airservices Australia [2000] HCA 39; (2000) 203 CLR 136

Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2002] FCA 526

Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd [2001] NSWSC 651; (2001) 53 NSWLR 1

Australian National Airlines Commission v The Commonwealth [1975] HCA 33; (1975) 132 CLR 582

Australian Securities and Investments Commission v Edensor Nominees Pty Limited (2001) 204 CLR 559

Australian Securities and Investments Commission v Rich [2004] NSWSC 467

B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95

British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; (2003) 77 ALJR 1566

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 77 ALJR 1629

Director of Public Prosecutions v X, unreported; SCt of Vic (Batt J), 29 March 1994

Garcin v Amerindo Investment Advisers Ltd [1991] 1 WLR 1140

Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543

Hasselblad (G.B.) Ltd. v Orbinson [1985] 1 QB 475

In re James (An Insolvent) (Attorney General Intervening) [1977] 1 Ch 41

Lincoln v Daniels [1962] 1 QB 237

MacLeod v Australian Securities and Investments Commission [2002] HCA 37; (2002) 211 CLR 287

Moyette Pty Ltd v Foundation Healthcare Ltd [2003] FCA 116

Northern Territory of Australia v GPAO (1999) 196 CLR 553

Re Wakim, Ex Parte McNally [1999] HCA 27; (1999) 198 CLR 511

Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431

Saif Ali v Sydney Mitchell & Co [1980] AC 198

Seyfang v Searle & Co [1973] QB 148

Sirros v Moore [1975] QB 118

Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119

Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261

The Bell Group Ltd & Ors v Westpac Banking Corporation & Ors (3) [2004] WASC 93

The Bell Group Ltd & Ors v Westpac Banking Corporation & Ors [2000] FCA 439; [2000] 104 FCR 305

The Bell Group Ltd & Ors v Westpac Banking Corporation & Ors [2001] WASC 315

The Queen v Gee (2003) 212 CLR 230

Trapp v Mackie [1979] 1 WLR 377

University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447

Wentworth v Wentworth [2000] NSWCA 350; (2001) 52 NSWLR 602

Willis v Trequair [1906] HCA 32; (1906) 3 CLR 912

Woodside Petroleum Developments Pty Ltd v H&R - E&W Pty Ltd, unreported; SCt of WA; Library No 970206; 28 April 1997

1 OWEN J: This is an application by the defendants for orders that the evidence of certain witnesses be taken out of the State of Western Australia either by the Court relocating to a foreign place or by the use of video link technology.

2 The background to the litigation appears from my reasons in The Bell Group Ltd & Ors v Westpac Banking Corporation & Ors [2001] WASC 315 and in The Bell Group Ltd & Ors v Westpac Banking Corporation & Ors (3) [2004] WASC 93.

3 Briefly, the background is as follows. There was a series of transactions in 1990 by which security over most of the assets of the Bell group of companies was granted to certain banks that were previously unsecured creditors of three companies only in the group. There are two groups of banks. One is a syndicate of six Australian banks led by Westpac Banking Corporation. The other is a syndicate of 14 overseas banks led by Lloyds Bank plc.

4 The Bell group of companies were placed in provisional liquidation, liquidation or receivership at various times from April 1991. The plaintiffs are various companies within the group and their liquidators. The banks are the defendants.

5 The plaintiffs say that by virtue of the transactions all significant and worthwhile assets of the Bell group were made available to the banks for repayment of the debts owed to the banks by some group companies in priority to the claims of all other creditors. The plaintiffs also say that the transactions were entered into when the relevant companies were insolvent, nearly insolvent, of doubtful solvency or would inevitably become insolvent and that the banks knew they were obtaining an advantage at the expense of other unsecured creditors.

6 The plaintiffs say the securities taken as a result of the transactions are invalid and seek recompense (under various heads) for the recoveries and gains. In essence, they contend that had the transaction not been entered into, the proceeds from the sale of the assets over which security was taken would have been available to satisfy inter-group indebtedness and would have flowed through to various companies within the group. Those proceeds would therefore have been applied for the benefit of all unsecured creditors.

7 The plaintiffs allege that the directors effected the transactions in breach of their duties to companies within the group at the expense of the other unsecured creditors and in the interest of the ultimate shareholder of the group. They also allege that the banks knowingly participated or assisted in the breaches of duties by the directors. The banks deny any wrongdoing and deny that the plaintiffs are entitled to recover anything.

8 The borrower companies defaulted in their obligations under the transaction documents. The banks exercised powers under the security documents and received proceeds amounting to approximately $280 million. In addition, the plaintiffs allege that during 1990 and 1991 the banks made gains from the arrangement of approximately $68 million. The plaintiffs seek recovery of those proceeds and gains and other monetary compensation totalling approximately $1.4 billion.

9 The various causes of action and defence and the material facts on which they are based are described in some detail in The Bell Group Ltd & Ors v Westpac Banking Corporation & Ors (3) at [52] to [88]. It is sufficient at the moment to identify two broad questions on which issue has been joined. During the period July 1989 to January 1990 negotiations for the refinancing arrangements were being pursued in earnest. A welter of material passed between the Bell group companies and the banks and between members of the banking syndicates. There were numerous meetings between representatives of the Bell group companies and the banks and within the banking syndicates. This documentary material and what transpired at those meetings is critical to the state of mind of the directors and of the relevant officers of the banks as to the solvency of the Bell group companies and the effect of the impugned transactions. State of mind is a material element of many of the causes of action and the defences to them.

10 Another significant question in the case is whether (before the transactions) the debts due to the banks ranked in priority to, or pari passu with, loans made from the proceeds of certain convertible bond issues that Bell group companies had issued. A related question concerns the state of mind of officers of the banks concerning the subordinated status of the loans made from the proceeds of the bond issues.

11 These two issues are at the heart of much of the litigation. Evidence about them will be central to the resolution of the case. Much of the evidence that is the subject of this litigation goes, in one way or another, to those two broad questions.

12 The trial began on 22 July 2003. Present indications are that the hearing is likely to be protracted and that it will not conclude until some time in 2005. The plaintiffs opened at length as their case is largely documentary and I wished to be taken to the documents. They are now progressing through their witnesses and the last estimate relayed to me was that their case would conclude some time in September or October 2004. The defendants then intend to open their case; an exercise presently envisaged to take 10 weeks. The evidence to which this application relates will come during the defendants' case. But many of the defendants' witnesses will give evidence in Perth before the focus of attention turns to the overseas witnesses. It is therefore unlikely that the overseas witnesses will be called until some time in 2005.

The Nature and Progress of this Application

13 I need to say something about the nature of this application, the way it developed and the general approach of the parties to the taking of evidence from overseas witnesses.

14 One of the banking syndicates (the Lloyds syndicate) is comprised purely of overseas, mainly European, banks. The Lloyds syndicate facility had been advanced to an English subsidiary of the Bell group, namely Bell Group (UK) Holdings Ltd. The convertible bond issues had been arranged using a company registered in the Netherlands Antilles as an intermediary and had been listed on the European bond market. The trustee of the issues was a UK company. The Lloyds syndicate banks were intimately involved in the refinancing negotiations and many of the meetings took place in London. There had been intra-group dealings in which moneys had been passed to and from the English sub-group. It is not surprising, therefore, that the dispute has a decidedly international flavour. Nor is it surprising that many of the key players are residents of countries other than Australia or that much of the evidence has its source outside Western Australia.

15 It was recognised from an early stage (to my recollection, from at least the directions hearing held on 31 October 2002) that the taking of evidence from overseas witnesses would be a significant and contentious matter. Most, in fact I think all, of the witnesses concerned are to be called as part of the defendants' case. The defendants applied by summons dated 28 March 2003 for orders that the evidence of named witnesses be taken by me acting as a Commissioner but sitting in foreign places. As an alternative, the evidence of those witnesses should be taken by video link between Western Australia and foreign places. The plaintiffs opposed the application. These questions had initially been raised at a directions hearing on 31 October 2002. They were considered again at a further directions hearing on 5 and 6 May 2003. At the conclusion of that hearing I indicated that while I would not then make orders I would give some preliminary observations. Those observations were to the effect that I was inclined to support the defendants' contentions although not necessarily all of them.

16 During the remainder of 2003 the parties discussed the issues that had been raised and reached agreement on some matters. The application came on for further hearing on 16 December 2003. By this time the defendants had given notice of intention to amend the chamber summons to take into account the preliminary indications that I had given in May 2003 and the matters on which agreement had been reached. By this time also the plaintiffs had put in issue whether the Court had power to order the taking of evidence by video link in the circumstances of this case. A question then arose whether the challenge to power involved a constitutional question that necessitated the giving of notice to Attorneys General under s 78B of the Judiciary Act 1903 (Cth). The plaintiffs also raised a question whether, in relation to evidence taken by video link, immunity from suit would apply. The defendants said they were taken by surprise by the raising of these questions and sought time to consider them. At the conclusion of the hearing on 16 December 2003 I announced that I was satisfied with the evidentiary base which the defendants had advanced for orders in relation to most of the persons referred to as the Part 1 witnesses.

17 The application came on for further hearing on 23 February 2004 at which time the s 78B question and the immunity from suit issue were fully canvassed. At the conclusion of that hearing I requested further written submissions on some points. On 3 March 2004 I announced my conclusion that s 78B of the Judiciary Act 1903 (Cth) did not apply. On 7 April 2004 I took further oral submissions, particularly on the immunity question. After that hearing I requested written answers to questions I delivered to the parties. These were provided. I was also provided with a copy of the decision in Australian Securities and Investments Commission v Rich [2004] NSWSC 467 handed down on 31 May 2004 in which Austin J dealt with a similar application. These reasons should be read in conjunction with the preliminary indications that I have given, particularly on 6 May 2003 and 16 December 2003.

18 The information that I am about to impart was current as at December 2003. The details may have changed and, no doubt, will continue to change. But what I am about to say is sufficient for the purposes of these reasons. The witnesses in respect of whom orders are sought can be divided into six categories. All of them (other than those described as Part 3B witnesses) are overseas residents. The categories are as follows:

• Part 1 witnesses: those said to be unwilling to come to Australia. Some have said they are prepared to give evidence in London. Others may have to be subpoenaed to do so. There are 18 persons in this category.

• Part 2 witnesses: those (although not said to be unwilling to travel to Australia) who have indicated they are prepared to give evidence in London. The parties have estimated the length of testimony of each of these witnesses to be less than one day. There are 50 persons in this category.

• Part 3A witnesses: in this category there are 11 "receipt of funds" witnesses who are resident overseas.

• Part 3B witnesses: in this category there are seven "receipt of funds" witnesses resident in States other than Western Australia.

• The Singapore witness: Mrs Grace Chow is a Singapore resident who has indicated she is unwilling to travel to Australia but that she is prepared to give evidence through a video link.

• The Gdansk witness: a former director of some of the Bell group companies who was a resident of Gdansk, Poland and who had indicated an unwillingness to come to Australia to give evidence.

19 The references to "Parts" are to the three numbered parts in Schedule 1 to the Minute of Amended Chamber Summons produced by the defendants in December 2003. The parties have reached agreement on all but the first two categories. It has been agreed that the evidence of the Part 3A and Part 3B witnesses and that of Mrs Chow can be taken by video link. The Gdansk witness has since returned to Australia and there is no necessity for the application to be pursued in respect of his testimony.

20 Generally speaking, the attitude of the defendants has been that as many of the overseas witnesses as possible should give their evidence without the need to come to Australia. As between relocating the Court to a foreign place or taking evidence by video link I think the defendants expressed a preference for the former but were content to settle for the alternative. The plaintiffs' position was that the Court should sit in Perth and hear oral evidence from witnesses physically present in the Courtroom save for persons in respect of whom there was unequivocal evidence that they were unable or unwilling to come to Perth. In relation to persons who could not or would not come to Perth the plaintiffs expressed a strong preference for the evidence to be taken in person rather than by video link.

Taking Evidence Overseas - the Statutory Framework

21 It is common ground that in this case I am exercising a combination of State jurisdiction (for example, the equitable fraud claims) and federal jurisdiction (for example, the claims under the Bankruptcy Act and the Trade Practices Act). This means I must look to the statute books of both jurisdictions to ascertain the regime for the taking of evidence from overseas witnesses. The Foreign Evidence Act 1994 (Cth) ("FEA") is the applicable Commonwealth statute, while at State level the situation is governed by the Evidence Act 1906 (WA) ("EA"). To say that I must look to State and Commonwealth statutes is not to deny the overarching effect of federal jurisdiction. As Gleeson CJ, Gaudron and Gummow JJ said in Australian Securities and Investments Commission v Edensor Nominees Pty Limited (2001) 204 CLR 559 at 571 [7] (omitting references):

"A State court receives State jurisdiction under the Constitution and laws of that State. It may also be invested with federal jurisdiction by a law made by the Parliament under s 77(iii) of the Constitution; s 39(2) of the Judiciary Act 1903 (Cth) is an example of such a law. The federal courts established by the Parliament ... exercise their jurisdiction, necessarily federal, by reason of its conferral by laws enacted under s 77(i) of the Constitution. A 'matter' in respect of which that jurisdiction is conferred may, in a given case, include claims arising under common law or under the statute law of a State. But the jurisdiction invoked remains, in respect of all of the claims made in the matter, 'wholly' federal; even in a State court 'there is no room for the exercise of a State jurisdiction which apart from any operation of the Judiciary Act the State court would have had' and 'there is no State jurisdiction capable of concurrent exercise with the federal jurisdiction invested in the State court'. These terms were used by Barwick CJ in Felton v Mulligan."

22 Section 3 of FEA defines a "superior court" to include a Supreme Court when exercising federal jurisdiction. Sections 7 and 8, which appear under the heading "Examination of witnesses abroad", are in these terms:

(1) In any proceeding before a superior court, the court may, if it appears in the interests of justice to do so, on the application of a party to the proceeding, make an order, relating to a person outside Australia:

(a) for examination of the person on oath or affirmation at any place outside Australia before a judge of the court, an officer of the court or such other person as the court may appoint; or

(b) for issue of a commission for examination of the person on oath or affirmation at any place outside Australia; or

(c) for issue of a letter of request to the judicial authorities of a foreign country to take the evidence of the person or cause it to be taken.

(2) In deciding whether it is in the interests of justice to make such an order, the matters to which the court is to have regard include the following:

(a) whether the person is willing or able to come to Australia to give evidence in the proceeding;

(b) whether the person will be able to give evidence material to any issue to be tried in the proceeding;

(c) whether, having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order.

8. Directions and requests relating to orders

(1) If a court makes an order of the kind referred to in paragraph 7(1)(a) or (b), the court may, at the time of making the order or at a later time, give such directions as it thinks just relating to the procedure to be followed in relation to the examination, including directions about:

(a) the time, place and manner of the examination; and

(b) any other matter that the court thinks relevant.

(2) If a court makes an order of the kind referred to in paragraph 7(1)(c), the court may include in the order a request about any matter relating to taking that evidence, including any of the following matters:

(a) examination, cross-examination or re-examination of the person, whether the person's evidence is given orally, on affidavit or otherwise;

(b) attendance of the legal representative of each party to the proceeding in question and participation of those persons in the examination in appropriate circumstances;

(c) any matter prescribed by the regulations."

23 Section 18 makes it clear that this part of FEA is not intended to exclude or limit the operation of any Australian law that provides for the examination of witnesses outside Australia for the purposes of a proceeding in Australia. Section 19 provides that the power to make rules of court regulating practice and procedure extends to the making of rules that are necessary or convenient for the carrying out or giving effect to, among others s 7 and s 8. Section 19(3) provides that the specific power in relation to rules does not affect the power to make rules under any other law. FEA is silent on the subject of video link evidence.

24 In this State EA contains provisions under a heading "Examination of witnesses outside the State". Section 110(1) provides that in proceedings before a superior court the court may, in relation to a person outside the State, make an order for the examination of a person at any place outside the State. But s 109(1) defines "superior court" (for the purposes of s 110) in a way that excludes the Supreme Court when exercising federal jurisdiction. It seems therefore that the applicable head of power is s 7 of FEA.

25 Unlike FEA there is a specific regime within EA in relation to the taking of evidence by video link. Section 120(1) contains the following relevant definitions:

(a) another State or a Territory in which provisions of an Act in terms substantially corresponding to this section and sections 121 to 132, are in force_;_ or

(b) any other jurisdiction outside the State prescribed to be a participating jurisdiction;

"recognised court" means a court or tribunal of a participating jurisdiction -

(a) that is authorised by the provisions of an Act of that jurisdiction in terms substantially corresponding to this section and sections 121 to 132 to direct that evidence be taken or a submission be made by video link or audio link from this State_;_ or

(b) that is prescribed to be a recognized court;

"video link" means facilities (including closed circuit television) that enable, at the same time, a court at one place to see and hear a person giving evidence or making a submission at another place and vice versa;

"WA court" means -

(a) the Supreme Court_;_ or

... "

26 Much of s 122 to s 132 deals with the exercise by a recognised court of powers in relation to its proceedings utilising video links to Western Australia. No jurisdictions or courts have been prescribed for the purposes of subpar (b) of the definitions of "participating jurisdiction" or "recognised court". It was not contended that the United Kingdom was a "participating jurisdiction" or that the courts of the United Kingdom were "recognised courts" under subpar (a) of the relevant definitions. The use by a Western Australian court in proceedings before it of video links to places outside the State is dealt with in s 121:

"121. WA court may take evidence or receive a submission by video link or audio link

(1) Subject to this section, a WA court may, on its own initiative or on the application of a party to a proceeding in or before the court, direct that in that proceeding evidence be taken or a submission be received by video link or audio link from a person at a place, whether in or outside this State, that is outside the courtroom or other place where the court is sitting.

(2) The court shall not make such a direction unless the court is satisfied that -

(a) the video link or audio link is available or can reasonably be made available_;_ and

(b) the direction is in the interests of justice.

(3) For the purposes of taking evidence or receiving a submission by video link or audio link from a place in this State in accordance with such a direction, the place shall be taken to be part of the court.

(4) For the purposes of taking evidence or receiving a submission by video link or audio link from a place in a participating jurisdiction, the court may exercise in that place any of its powers that the court is permitted, under the law of the jurisdiction, to exercise in that place."

27 I should also mention s 132. It provides that nothing in s 120 to s 132 excludes or limits the operation of any other law of the State that makes provision for the taking of evidence or making of a submission in the State for the purpose of a proceeding in the State, outside the State for the purpose of a proceeding in the State and in the State for the purpose of a proceeding outside the State.

28 During argument the defendants also referred to s 21(3) of the Supreme Court Act 1935 (WA) and to the inherent jurisdiction of the Court as other possible heads of power for the taking of video link evidence. Because of the conclusions to which I have come in relation to FEA and EA I do not need to deal with those matters.

A Constitutional Issue - Judiciary Act s 78B

29 An issue having possible ramifications as a constitutional matter was raised during argument. The plaintiffs had contended there was no head of power under which the Court could take evidence by video link. This arose as part of the plaintiffs' submission that FEA did not authorise the taking of evidence by video link and that it was inapposite to call in aid EA in that respect. In particular, the plaintiffs contended that s 79 of the Judiciary Act 1903 (Cth) did not pick up and preserve the operation of s 120 to s 132 of EA. Section 79 provides that, save as otherwise provided by the Constitution or the laws of the Commonwealth, the laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, are binding on all courts exercising federal jurisdiction in that State or Territory

30 The possible constitutional question arose initially because of par 1.18 of the written submissions filed by the plaintiffs and dated 31 January 2004. Having dealt with the situation where a State court was taking evidence by video link from within the State (which would not be problematic) the plaintiffs went on to say:

"This should be contrasted with the position when the Court (exercising federal jurisdiction) proposes to take evidence by video link from a witness located outside the jurisdiction. For the reasons outlined above ... it is submitted that the Evidence Act cannot invest the Court with jurisdiction to do so. Section 79 of the Judiciary Act cannot have been intended by the Commonwealth parliament to confer upon the State parliaments such power. By analogy with Wakim and with Edensor, that would be contrary to section 77 of the Commonwealth Constitution, which reserves to the Commonwealth parliament the power to make laws investing State courts with federal jurisdiction. It follows that section 79 of the Judiciary Act does not import the State Evidence Act in the circumstances of the present proceedings as that would be "otherwise provided by the Constitution". Alternatively, the State legislation is simply irrelevant as it does not say anything about the Court's power to exercise federal jurisdiction."

31 A preliminary question that this occasioned was whether it raised "a matter arising under the Constitution or involving its interpretation". If it did then s 78B of the Judiciary Act would apply. The Court would then be under a duty not to proceed unless satisfied that notice had been given to the Attorneys General (Commonwealth and States) and a reasonable time had elapsed for them to consider the question of intervention in the proceedings or removal of the cause to the High Court. Section 78B places a duty on the court and the trial judge must do more than simply adopt the position advanced by the parties. Nonetheless, I note that neither party contended that a s 78B notice was necessary.

32 As I understand it the defendants drew attention to par 1.18 because they appreciated the obligations imposed on the court. But at no stage did they propound the proposition that the argument about EA involved a matter arising under the Constitution or involving its interpretation. The plaintiffs explained par 1.18 in this way. Their contention was that s 79 of the Judiciary Act did not "pick up" the relevant sections of EA. This assertion necessarily required an analysis of the Judiciary Act. Such an analysis required some consideration of the foundations of the legislation. The plaintiffs pointed out that the Judiciary Act was enacted by the Commonwealth pursuant to s 77 of the Constitution. Thus, a construction of the Judiciary Act and an attempt to define the reach of its provisions would necessarily involve consideration of the Constitution. But it did not follow that a question of interpretation of the Constitution had therefore been raised. The plaintiffs contended that they had done no more than seek to establish whether the construction of EA contended for by the defendants was "otherwise provided by the Constitution or the laws of the Commonwealth".

33 It seems to me that the real issue is whether EA, in conferring or purporting to confer on this Court, when exercising federal jurisdiction, power to take evidence by video link, is a surrogate federal law. The next question is whether FEA, as a law of the Commonwealth, "otherwise provides" (in the sense that it excludes by omission authorisation for the taking of evidence by video link) for the purposes of s 79 of the Judiciary Act. If it does, then the Commonwealth statute displaces the surrogate federal law. If it does not, then the surrogate federal law continues to operate according to its tenor by force of s 79. In my view this does not arise under the Constitution and nor does it involve the interpretation of the Constitution. The question falls to be determined as a matter of the construction of s 7 and s 8 of FEA. I do not see a constitutional limitation arising from s 77 of the Constitution that would prevent s 120 to s 132 of EA applying when the court is exercising federal jurisdiction. In those circumstances s 78B of the Judiciary Act has no application and there is no need to give notices to the Attorneys General.

Video Evidence under the Foreign Evidence Act

34 But what is the proper interpretation of s 7 and s 8 of FEA in this respect? Seeing and hearing a witness physically present in the same room as the judge, counsel and such of the parties and the members of the public as are interested is the conventional manner of taking evidence and trying a case. But this method was developed at a time when the quill pen was the primary means of recording proceedings (and judgments were blissfully short because they were written by hand), telephonic communication was in its infancy and before Marconi and Fleming had begun to ponder the meaning of the term "wireless". Its refinement occurred at a time when the word "globalisation" did not appear in the Oxford Dictionary and certainly before it was an established factor in commerce.

35 It is not surprising therefore that advances in technology have been recognised by the legislature as having a legitimate part to play in the administration of justice. Video link technology is one such area. Every year it becomes more difficult for courts to extract from governments a level of resources that bears a reasonable relationship to the cost of providing a system of justice that the courts believe is in the public interest. This necessitates, among other things, resort to technology to provide new and different mechanisms for trying cases where to do so will enable scarce resources to be spread but without imperilling the integrity of the system generally.

36 In my view this is a reality in modern commerce and in the administration of justice. It is another reason (or another way of saying much the same thing) for applying a liberal interpretation to remedial and enabling legislation in this area. This is how I approach the construction of statutes conferring jurisdiction (or perhaps more accurately power) in relation to the taking of evidence using new technologies. But this is, in the first instance, a question of power. The application of the power in the exercise of discretion is a different thing. The object of a court case is to achieve a just result. The effect on the interests of justice falls to be determined in the circumstances of the particular case. It is by taking into account all competing factors and balancing all relevant interests in the particular case that the court ensures that the exercise of the power will not prejudice unfairly the parties to the action. And nor will it imperil the system generally.

37 It follows that I accept the submission of the defendants that s 7 and s 8 of FEA ought to be read in a broad and beneficial way so as to enable the court to take advantage of advances in technology. This approach has support in the authorities: see Director of Public Prosecutions v X, unreported; SCt of Vic (Batt J); 29 March 1994 at 10 (in relation to Evidence Act 1958 (Vic)); ASIC v Rich [2004] NSWSC 467 at [43].

38 Section 7(1) applies to any proceedings before a superior court. When combined with the definition of "superior court" it applies to any proceedings before this Court so long as this Court is exercising federal jurisdiction. And it empowers (relevantly) the court to make an order, in relation to a person outside Australia "for the examination of the person on oath or affirmation at any place outside Australia before a judge of the court". The word "before" is important. Video link involves a hearing in which the judge and the witness (and possibly counsel) are geographically separated and the vision of and sound emanating from the witness are relayed from a remote location to the room in which the judge (and possibly counsel) is physically present. Can it be said that a hearing of this type is relevantly "before" the court? In DPP v X Batt J referred to this very question. His Honour was dealing with a case brought in Victoria before a Victorian court but in which it was desired to take evidence by video link from a witness in Canberra. He said, at 9:

"A question may arise as to before whom the examination is conducted where it is by closed circuit television or video link as opposed to oral examination by question and answer recorded and transcribed in, let us say, a courtroom in Canberra. There is, in my view, much to be said for the view that such an examination is conducted before the Magistrate sitting [in Victoria]. As Lord Donaldson MR said in Henderson v SBS Realisations Ltd (unreported, Court of Appeal; England, 13 April 1992, noted 108 LQR 561) a 'video link is, for all practical purposes, very much the same as hearing evidence in court'."

39 In B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95 at 104 Williams J expressed views to the same effect. I should explain what I understand by the phrase "a video link is, for all practical purposes, very much the same as hearing evidence in court". It does not mean that video link is a simple substitute in all circumstances for viva voce evidence delivered in person in the courtroom. I think what his Lordship had in mind was that the end result is similar, namely evidence given by a witness who can be seen and heard by those in the courtroom and whose testimony occurs in "real time". In this respect it is to be distinguished from, for example, a pre-recorded video or evidence given by the production of an affidavit.

40 I am aware there are many expressions of judicial view urging caution in the use of video links. But generally speaking they relate to the manner in which the power is to be exercised rather than to the existence of the power itself. On the question of whether the hearing is relevantly "before" the court I have reached the conclusion that the transmission of sound and images by video link is no impediment. I note that the learned authors of Cross on Evidence, 6th ed, [13275], regard this as one of several "difficult questions of principle".

41 Section 7(1) is limited to the taking of evidence "on oath or affirmation". That raises the question whether the judge or a court official, in Perth, could administer an oath or affirmation to a witness in a foreign place. But I am not sure that this necessarily affects the construction of s 7(1) insofar as it is a head of power. Much will depend on arrangements existing or that can be made in the foreign place. It may be possible, for example, for the oath or affirmation to be administered by a person, physically present in the place where the evidence is being given, competent to administer the oath or affirmation. In this application we are concerned with taking evidence from the United Kingdom. I should therefore mention the Oaths and Evidence (Overseas Authorities and Countries) Act 1963 (UK), Ch 27 s 1 which provides:

"Any person appointed by a court or other judicial authority of any foreign country shall have power in the United Kingdom to administer oaths for the purpose of taking evidence for use in proceedings, not being criminal proceedings carried on under the law of that country."

42 In my view the terms of s 8(1)(a) of FEA that empower the court to give directions concerning, among other things, the manner of the examination is broad enough to encompass the taking of evidence by video link. Again, there is authority in other jurisdictions that the word "manner" is amenable to that construction: see, for example, Garcin v Amerindo Investment Advisers Ltd [1991] 1 WLR 1140 at 1143 (Rules of the Supreme Court (UK) O 38 r 3); Director of Public Prosecutions v X (Evidence Act 1958 (Vic), s 9H).

43 Looked at in this way s 7(1) and s 8(1) fit neatly together. The former provides the essential head of power and the latter provides the ancillary powers to prescribe and organise the way in which the evidence is to be taken.

44 The plaintiffs submitted that s 7 and s 8 make no mention of video link technologies and that this was not an oversight. Sections 47 to 47F of the Federal Court of Australia Act 1976 (Cth) provide for the taking of evidence by video link. The application of these sections is limited to the Federal Court. The plaintiffs contended that the Commonwealth parliament would not have seen fit to amend the Federal Court of Australia Act in 1994 and 2002 to make specific provision for the taking of evidence by video link, if FEA already granted such powers. But this overlooks the fact that prior to the enactment of FEA in 1994 and before the amendments to s 47 to s 47F that made express reference to video links the Federal Court already had power to take evidence by these means: see Federal Court Rules O 24 r 1A which was enacted in 1989; Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 per Katz J at [6].

45 I note that in ASIC v Rich the application was made in the alternative. The first alternative was for the taking of evidence from London by video link, either with the assistance of a letter of request under FEA s 7(1) appointing an examiner or under the Supreme Court Rules. The other alternative was for the appointment of the trial judge as an examiner under s 7(1) and for the court to relocate to London. Austin J adopted the second alternative. While there is no indication that the precise point raised in this application was agitated in ASIC v Rich, his Honour's reasons do not suggest that, in relation to the video link option, he was concerned about a lack of power.

The Interrelationship Between Foreign Evidence Act and Evidence Act

46 The conclusion that I have reached concerning the authority to give directions under s 8(1)(a) of FEA may in itself be sufficient to resolve the issue of power. But I should say something about the relevant provisions of EA and their relationship to the regime in FEA.

47 I should start by making some general comments. Many of them will appear trite but it seldom hurts to be reminded of general principles. The first of them revolves around the concepts of jurisdiction and power. Much of the controversy centred on the plaintiffs' contention that power conferred on the court by s 121 of EA was a grant of jurisdiction and that it was invalid because a State enactment cannot grant jurisdiction to a State court exercising federal jurisdiction. Jurisdiction and power are confusing concepts. In Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119 McHugh J commented on these concepts at 140-141 [43] (citations omitted):

"The concept of power is different from the concept of jurisdiction as Toohey J pointed out in Harris v Caladine when he said:

'Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and "such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred".

... In particular contexts, jurisdiction and power can be indistinguishable. And as the judgment of Toohey J in Harris indicates, a grant of jurisdiction carries with it implied power to do all that is necessary to make the grant of jurisdiction effective. But just as the bare conferral of jurisdiction may imply powers or create substantive rights and duties, so may the bare conferral of a power give authority to decide, that is to say, give jurisdiction. ..."

48 I incline to the view that the authority conferred on the court by s 121 of EA to permit evidence to be taken by video link is a conferral of power rather than jurisdiction as described above. I should add for completeness that in B v Dentists Disciplinary Tribunal at 105 and 111 Williams J framed his orders using the phraseology "jurisdiction". But for reasons that I will expand on later, in the context of s 79 of the Judiciary Act it may not make a difference. From an abundance of caution I will proceed, for the moment, on the basis that s 121 relates to jurisdiction.

49 The objective of s 79 is to facilitate the particular exercise of federal jurisdiction by the application of a coherent body of law, elements in which may comprise the laws of the State or Territory in which the jurisdiction is being exercised, together with the laws of the Commonwealth, but subject always to the overriding effect of the Constitution itself: Northern Territory of Australia v GPAO (1999) 196 CLR 553 per Gleeson CJ and Gummow J at 588 [80]. An analogy can be drawn with s 68(2) of the Judiciary Act which was designed to assimilate criminal practice and procedure for State and federal offences. Speaking of s 68 in The Queen v Gee (2003) 212 CLR 230 at 241 [7] Gleeson CJ said:

"[The] general policy reflects a legislative choice between distinct alternatives: having a procedure for the administration of criminal justice in relation to federal offences that is uniform throughout the Commonwealth; or relying on State courts to administer criminal justice in relation to federal offences and having uniformity within each State as to the procedure for dealing with State and federal offences. The choice was for the latter. The federal legislation enacted to give effect to that choice, therefore, had to accommodate not only differences between State procedures at any given time, but also future changes to procedures in some States that might not be adopted in others. That explains the use of general and ambulatory language, and the desirability of giving that language a construction that enables it to pick up procedural changes and developments as they occur in particular States from time to time."

50 The way that s 79 achieves its objective is to "pick up" the State enactment and apply it under a relevant Commonwealth statute as "surrogate federal law". This is the proper way of looking at the question. A State court when exercising federal jurisdiction exercises federal jurisdiction and only federal jurisdiction. In the process it may employ jurisdiction that is federal but that has a State source. It is federal because it has been picked up and has become a surrogate federal law. But the State enactment will not be picked up if a Commonwealth statute or the Constitution "otherwise provides". How is this assessed? The test is different to that applied in determining inconsistency under s 109 of the Constitution where the Commonwealth has purported to cover the field. In Northern Territory Gleeson CJ and Gummow J explained the process at 588 [80]:

"... the notion of "inconsistency" involved in the phrase "otherwise provided" in s 79 is akin to that first identified by Mason J in the passage from the judgment in University of Wollongong v Metwally ... This is the need to resolve the problem that arises by conflict between conflicting statutes having the same source. The law of a State or Territory which is to operate as a surrogate law of the Commonwealth is to be measured beside other laws of the Commonwealth."

51 The reference in that passage to an earlier judgment is to University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447 where Mason J said, at 463:

"Inconsistency or repugnancy is a long-standing concept in the field of statutory law. Where the provisions of two statutes are in conflict, so much so that they cannot be reconciled one with the other, there is a consequential need to resolve the problem created by the conflict. In the case of conflicting statutes enacted by one legislature the problem is resolved by regarding the later statute as impliedly repealing the earlier statute to the extent of the inconsistency. In the case of conflicting statutes, one enacted by the Imperial Parliament, the other by a colonial legislature, the problem was resolved in favour of the primacy of the Imperial statute, even if it be the first in time."

52 Different ways have been used to describe this process. In Anderson v Eric Anderson Radio & TV Pty Ltd [1965] HCA 61; (1965) 114 CLR 20 at 39 Menzies J asked whether the law relied on as a law of the Commonwealth was one displacing the law of the State. In Australian National Airlines Commission v The Commonwealth [1975] HCA 33; (1975) 132 CLR 582 at 587 Mason J asked whether the Commonwealth statute was a comprehensive expression of the relevant entitlement to the exclusion of any provision in a State law. In Northern Territory at 588 [81] and Austral Pacific Group Ltd (In Liquidation) v Airservices Australia [2000] HCA 39; (2000) 203 CLR 136 at 144 [17] the issue was approached by asking the question: does the operation of the Commonwealth statute so reduce the ambit of the State law that the provisions of the former are irreconcilable with those of the State law? In MacLeod v Australian Securities and Investments Commission [2002] HCA 37; (2002) 211 CLR 287 at 286 [22] in the main joint judgment their Honours noted that if the State law added to or derogated from the powers and functions created by the Commonwealth law then the State law would not have been picked up by s 79 because the Commonwealth law would otherwise have provided.

53 MacLeod has to be seen in its context. Their Honours expressly referred to the test as explained in Northern Territory v GPAO. I do not read the dicta in MacLeod as meaning that if the State law makes any addition of any description to the powers contained in the Commonwealth enactment the former is necessarily excluded. It still depends on whether the two laws are reconcilable. I believe this is the most succinct way to enunciate the test. The State law will not have been picked up if the two are irreconcilable.

54 The plaintiffs submitted that the taking of evidence extra-territorially is itself an exercise by the court of jurisdiction. The vice of extra-territoriality is an encroachment on the sovereign rights of a foreign state or power. The taking of evidence extra-territorially might involve an intrusion into the legitimate affairs of the foreign power, for example an attempt to exercise a coercive power in that State. But it will not necessarily be so. The jurisdiction is that conferred by the common law or the various statutes (some of them federal) under which the causes of action are framed. It is in those common law principles and the various statutes that is to be found the authority to decide the range of matters that are being litigated. In the process of exercising that jurisdiction the court has incidental powers, including powers to direct how evidence is to be taken. Those powers may, as I have said, be exercised or be intended to be exercised in a way that would impugn the interests of a foreign power or may otherwise be inextricably connected with jurisdiction. But I do not read s 121 as being of that nature. The Commonwealth legislature may not have power to legislate in respect of all aspects of substantive (or procedural) law applicable in particular proceedings even though the proceedings may involve federal jurisdiction. The Commonwealth legislature does have the power to invest a State court with federal jurisdiction. On the other hand State jurisdiction cannot be conferred on a federal court by the exercise of State legislative power.

55 But it does not follow that what is, at its source, State jurisdiction cannot be conferred on a State court when exercising federal jurisdiction. This is where, relevantly, the regime under s 79 comes into play. State laws upon which s 79 operates do not apply of their own force in the exercise of federal jurisdiction. The State laws apply because they have become federal laws by force of s 79: Solomons at 134 [21]. This is the reason I said earlier that I did not think the categorisation of the authority to order the taking of evidence by video link as jurisdictional rather than as an exercise of a power was necessarily decisive. The critical question is whether the State law is picked up and thus becomes federal law in the relevant sense. And it may be picked up whether it is strictly a matter of jurisdiction, simply one of power or a hybrid between the two.

56 In ASIC v Edensor at 591 [68] the court noted that a State law might be applicable as a source of rights and remedies in a federal court. This is the language of jurisdiction. In that case the relevant State laws that were picked up were provisions of the then Corporations Law authorising courts to make orders to protect persons affected by prohibited conduct in relation to a corporate takeover. In Austral Pacific the Court held that a State law concerning contribution between joint tortfeasors was picked up by s 79. On the other hand, Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 77 ALJR 1629 is an example of power rather than jurisdiction. The question there was whether certain provisions of the Evidence Act 1977 (Qld) relating to the admissibility of documentary evidence were picked up so as to apply in civil penalty provisions under the Customs Act 1901 (Cth). Gummow J decided that it had not been picked up, but not because of any fundamental impediment. His Honour held that the Customs Act "otherwise provided" because it designated other State laws that were to be applied in civil penalty proceedings.

57 The last general comment I wish to make about the federal-State jurisdictional interaction and the regime under s 79 of the Judiciary Act is that a State law will not be picked up if to do so would extend or alter its meaning: Austral Pacific at 143 [13]. In particular, if various provisions of a State statute go together as a legislative scheme some one or more of those provisions cannot be picked up to the exclusion of others of them if to do so would alter the meaning of those that are picked up: The Commonwealth v Mewett (1997) 191 CLR 471 at 556; British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; (2003) 77 ALJR 1566 at 1577 [56].

The Construction of Evidence Act s 121

58 I will turn now to the relevant provisions of EA. There are a couple of things to note about them. First, while s 110 of EA expressly excludes from its operation the Supreme Court when exercising federal jurisdiction (an implicit recognition of the primacy of FEA) there is no such exclusion from the definition of "WA court" in s 120, which definition governs s 121. Secondly the mere fact that s 121 is expressed in terms applying specifically to Western Australian courts does not prevent it from being picked up by s 79: ASIC v Edensor at 593 [72].

59 Sections 121 (the text of which is set out above) and s 122 apply to proceedings before a Western Australian court. Section 122 provides that a person entitled to practise as a legal practitioner in a participating jurisdiction is entitled to practise as a barrister, solicitor or both in relation to the examination, cross-examination or re-examination of a witness whose evidence is given by video link and in relation to the making of a submission by video link from the participating jurisdiction in a proceeding before (among others) this Court. Sections 123 to 130 are different. They do not apply to a proceeding before a Western Australian court. Rather they authorise a recognised court (in effect a court or tribunal from a participating jurisdiction or one that is prescribed as such) to take evidence or receive submissions by a video link from a person in this State. They then set out a regime that, in broad terms, equates the position of the recognised court utilising a video link between it and Western Australia for purposes of proceedings before it to a court of this State. Section 131 confers a power to make regulations in relation to fees. Section 132 (the effect of which I also set out above) preserves the operation of other laws of the State for the taking of evidence outside the State for the purposes of a proceeding in the State.

60 The primary contention of the plaintiffs is that the State parliament intended a scheme by which this Court is empowered to take evidence by video link from, and only from, another place within the State or from participating jurisdictions. The latter (save for jurisdictions that are prescribed) envisages only other jurisdictions where there is comity, in the sense that the other jurisdiction has enacted legislation equivalent to the provisions in s 123 to 131 for the facilitation of hearings conducted by video link. It is common ground that no other jurisdiction has been "prescribed" for these purposes and that the United Kingdom does not have a comparable legislative scheme. This construction, the plaintiffs submit, follows from the fact that in relation to a video link from a place within the State that place is deemed to be a part of the Court. The plaintiffs also contend that such a construction is natural and logical because parliament cannot have intended that the Court conduct hearings by video link in circumstances where:

(a) there is no legislative provision in the foreign jurisdiction conferring upon the judge, counsel and witnesses the protection, privileges and immunity they would usually enjoy;

(b) the Court has no power over the proceeding so far as it is conducted in the foreign jurisdiction so that:

• the Court would be unable to control the conduct of the proceedings by making directions relating to practice and procedure;

• the Court would be unable to make orders for maintaining confidentiality;

• the Court would be unable to administer an oath in circumstances where, if the witness were to commit perjury, he or she would be subject to prosecution and punishment;

• the Court would be unable to administer a sanction for contempt of court; and

(c) the Court (in the absence of enabling legislation in the foreign jurisdiction) runs the risk of infringing the sovereignty of the foreign state.

61 Looked at separately the wording of s 121(1) is clear and of broad import. The words appear to contemplate the use of video links in any proceedings in or before the Court from any place "whether in or outside this State". The question is whether the words bear this broad meaning or whether, when read in conjunction with the remainder of the section and with other relevant parts of EA, they are limited in the way contended for by the plaintiffs. As is often the case it is necessary to look at the legislative history of these provisions of EA.

62 Sections 120 to 132 were inserted in 1998 by the Acts Amendment (Video and Audio) Act 1998 (WA). The amendments came into effect on 18 January 1999. Before that time (although not expressly and directly conferred by a statute) the Court had the power to order the taking of evidence by video link: Rules of the Supreme Court O 29 r 2(1)(c); Woodside Petroleum Developments Pty Ltd v H&R - E&W Pty Ltd, unreported; SCt of WA; Library No 970206; 28 April 1997. There is nothing in the second reading speech in the parliament concerning the amending Bill, the explanatory memorandum for the Bill or the amending Act itself to suggest that the parliament intended to do away with the pre-existing power. In fact , s 3(1) of the amending Act provides:

"Nothing in the amended provisions is to be taken as preventing the use by a court or other person acting judicially of a video link or audio link (as those terms are defined in ss.121 of the Evidence Act 1906) in any case where the court or person thinks fit and where the use of the video link or audio link would not be contrary to law."

63 I have already mentioned s 132. It preserves the operation of any other law of the State that makes provision for the taking of evidence or the making of a submission outside the State for the purpose of a proceeding in the State.

64 In my view there is no warrant for the suggestion that under the arrangements existing prior to the enactment of s 121(3) the Court would not have treated a video link from a place in this State as being part of the Court so as, for example, to use coercive powers in respect of a witness in that place. In this respect, I believe the legislature has simply codified and expressed powers that were implicit in the pre-existing provisions. Subsection 121(4) then extends the powers of the Court from those which were in existence before the enactment of those provisions for participating jurisdictions. The subsection reflects the cooperative scheme now in place throughout Australia, albeit in somewhat different terms in some of the States and Territories. This may raise questions whether all of the States and Territories have provisions that correspond substantially with s 120 to s 132 but such questions (if they arise) are beyond the scope of this application.

65 I do not think there is an inconsistency between s 121(1) and s 121(3) and (4) so as to permit the plain words of s 121(1) to be read down. Nor is there any ambiguity. Section 121(1) provides that a Western Australian court may direct that evidence be taken by video link from a person at a place "whether in or outside this State". By virtue of s 120(2) a reference to "a place outside the State" is taken to refer to such a place whether within or outside Australia. The only express qualification to be found in s 121(1) is that contained in the words "subject to this section". I think the relevant qualification is that set out in s 121(2).

66 Section 121(2) provides for matters of which the court must be satisfied before it can make a direction of that kind, namely that reasonable technological facilities are available and that it is in the interests of justice to proceed by way of video link. Section 121(3) describes how a link to a place within the State is to be treated. Finally, s 121(4) allows the Western Australian court, when operating by video link to a participating jurisdiction, to exercise such powers as the law of the participating jurisdiction permits the Western Australian court to exercise in that place. Section 121(4) contemplates that the participating jurisdiction will extend to a Western Australian court similar powers, facilities and protections to those that the parliament has conferred on a recognised court by force of s 123 to s 131. If the place from which the video evidence is to be taken is not in a participating jurisdiction, s 121(4) has no application, as that subsection applies only to links with participating jurisdictions.

67 In relation to power (rather than the discretionary exercise of the power in a particular case) I think s 121(1) is to be read as authorising the taking of evidence by video link from a place that is neither a part of Western Australia nor a place that is within a participating jurisdiction. Other factors (including those to which I referred when describing the plaintiffs submissions on this point), if they are made out, will be relevant to the exercise of the discretion. But they do not demand a conclusion that no power exists.

Is Section 121(1) of EA Picked Up as a Surrogate Federal Law?

68 I do not understand the plaintiffs to contend that there is anything in the Constitution that prevents the relevant provisions of EA from being picked up. Indeed, during the exchanges concerning s 78B of the Judiciary Act the plaintiffs disavowed the suggestion that s 77 of the Constitution might "otherwise provide" in relation to EA. As the defendants pointed out, the Constitution has nothing to say about the law relating to the gathering of evidence in cases involving the exercise of federal jurisdiction by State courts. So the critical question is whether FEA "otherwise provides".

69 A number of questions arise from the earlier analysis of the authorities on s 79 of the Judiciary Act. What construction of FEA will best facilitate the particular exercise of federal jurisdiction by the application of a coherent body of law? In this respect it is to be noted that general and ambulatory language ought to be construed so as to pick up procedural changes and developments as they occur in particular States from time to time. Are FEA and EA irreconcilable? This can be approached by asking three further questions. Is FEA a comprehensive expression of the manner in which evidence may be taken from a witness in a foreign place to the exclusion of the EA provisions in that respect? Does the operation of FEA so reduce the ambit of EA that the provisions of FEA are irreconcilable? Can s 121 be picked up without altering its meaning, and in particular, if it is seen as part of a legislative scheme encompassing s 120 to s 132 and if s 121 is picked up alone, does its meaning change? It is not possible to address each of those questions neatly and in turn because, at least to some extent, they are interdependent.

70 The Federal Court has power to take evidence by video link: Federal Court of Australia Act 1976 (Cth) s47. There are many actions in the Federal Court in which elements of rights and remedies that have their source away from federal law fall to be determined along with federal matters because they are categorised as accrued jurisdiction. This action is an example. It was commenced in the Federal Court and it might have continued there. It came to this Court not because the Federal Court was deprived of jurisdiction following Re Wakim, Ex Parte McNally [1999] HCA 27; (1999) 198 CLR 511 but because Carr J was persuaded that this Court was the more appropriate forum: The Bell Group Ltd & Ors v Westpac Banking Corporation & Ors [2000] FCA 439; [2000] 104 FCR 305. It would, in my view, be odd if s 7(1) were to be interpreted in a way that meant that in such cases the Federal Court could avail itself of modern technology but a State court exercising federal jurisdiction could not. This would be inimical to the objective of facilitating the particular exercise of federal jurisdiction by the application of a coherent body of law.

71 I turn now to s 18 of FEA. The plaintiffs submitted that s 18 is only intended to make it clear that the FEA works in conjunction with other federal legislation dealing with the same subject matter, such as s 47A to s 47F of the Federal Court of Australia Act. Further, that s 18 makes it clear that it does not intend to limit the operation of State legislation which empowers State courts to take evidence extra-territorially in matters involving the exercise of State jurisdiction. In my view this interpretation sits uneasily with the definitions in s 3 of FEA. "Australian law" is defined as a law (whether written or unwritten) of or in force in the Commonwealth, a State or a Territory. The definition of "superior court", insofar as it relates to a State Supreme Court, is expressly limited to the court when exercising federal jurisdiction. Accordingly, the express preservation in s 18 of the operation of "any Australian law" extends to EA. In the way I have interpreted s 121(1) of EA it is a law "that provides for the examination of witnesses outside Australia for the purposes of a proceeding in Australia". Section 7(1) of FEA applies to any proceeding before a superior court but in relation to a State Supreme Court that is necessarily limited to the exercise by that court of federal jurisdiction.

72 Section 3(1) also contains a definition of "Australian court". It includes a "court exercising federal jurisdiction" and "a court of a State or Territory". It would therefore include a State Supreme Court whether it is exercising State or federal jurisdiction. But s 18 appears in Part 2 of FEA and its express preservation is for the purposes of Part 2. I can find no reference in Part 2 to "Australian court". Part 2 therefore seems primarily to capture a State Supreme Court in its guise as a "superior court", that is, one exercising federal jurisdiction.

73 In my view there is no warrant to interpret s 18 as not having any effect other than that to indicate harmony with other Commonwealth laws and preserving the operation of laws governing proceedings before a State court exercising State jurisdiction. Part 2 of FEA simply does not refer to the latter. I believe, therefore, that s 18 evinces an intention to preserve the operation of, among other things, s 121(1) of EA. If this is correct it is difficult to see why it would not be picked up by s 79 of the Judiciary Act.

74 As I have previously indicated s 121(1) is part of a legislative scheme that has within it elements that apply to video links to a place within Western Australia, to a foreign place that is a participating jurisdiction and to a foreign place that is not a participating jurisdiction. The relevant aspect to be picked up is only the third of them. But in my view the necessary parts of s 121(1), as they would apply under the general enabling force of s 7 and s 8 of FEA, have the same meaning as they would have if construed as part of the legislative scheme.

75 In my view s 7 and s 8 of FEA are not a comprehensive expression of the manner in which evidence may be taken from a witness in a foreign place to the exclusion of s 121(1) of EA. Nor do the operations of those sections of FEA so reduce the ambit of s 121(1) of EA that the two sets of provisions are irreconcilable. They are relevantly picked up by s 79 of the Judiciary Act.

76 Accordingly, I think the Court, whether exercising State or federal jurisdiction has power (or jurisdiction) to order that, for the purposes of these proceedings, evidence be taken by video link from the United Kingdom. The next question is whether, in all of the circumstances, it would be a proper exercise of discretion to make such an order.

77 Before I embark on a consideration of the factors relevant to the exercise of the discretion there is another general question that needs to be aired. In my view it has ramifications for the administration of justice generally as well as being important for the resolution of this application. It is the question whether immunity from suit applies when the proceedings involve the use of video links.

78 What is meant by "immunity from suit"? For these purposes I need do no more than cite the dicta of Brennan CJ, Dawson, Toohey and Gaudron JJ in Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204 at 211-213 (references omitted):

"It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. It extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings. It is said that it extends to any document published on an 'occasion properly incidental [to judicial proceedings], and necessary for [them]'.

...

It is sometimes said that absolute privilege is founded on public policy considerations. It may be that, so far as concerns communications between officers of State in the course of their official duties, absolute privilege attaches by reason of broad considerations of public policy and convenience. However, a more precise basis was identified for that aspect of the privilege in Gibbons v Duffell, it being said in that case that absolute privilege attaches because it is 'indispensable to the effective performance of ... official functions'.

Whatever the position with respect to communications between officers of States, absolute privilege attaches to statements made in the course of parliamentary and judicial proceedings for reasons of necessity. Thus, it has been said that absolute parliamentary privilege arises from 'inherent necessity'. And absolute privilege attaches to statements made in the course of judicial proceedings because it is an indispensable attribute of the judicial process. It is necessary that persons involved in judicial proceedings, whether judge, jury, parties, witnesses or legal representatives, be able to discharge their duties freely and without fear of civil action for anything said by them in the course of the proceedings. Were civil liability to attach or be capable of attaching, it would impede inquiry as to the truth and justice of the matter and jeopardise the 'safe administration of justice'.

It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is 'viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated'."

79 Immunity from suit finds its source in the common law. As between the United Kingdom and Australia it has a common heritage and the broad principles are much the same. It is a substantive immunity that extends beyond defamation to any suit against those protected arising from something said or done in court proceedings.

80 No issue is raised as to the immunity of advocates, witnesses and the trial judge in relation to proceedings held in the Court within Western Australia. Similarly, no issue is taken in relation to the taking of evidence on commission following a Letter of Request. This is because a commission operates pursuant to the orders of the High Court of Justice in the United Kingdom. The issue is whether the immunity of the trial judge, witnesses and advocates remains where the Supreme Court makes orders under s 7(1) of FEA or s 121(1) of EA for the taking of evidence before it by way of video link in a foreign place, namely the United Kingdom.

81 I have a real concern about these matters. It may seem odd that I should harbour concerns in this respect. I have already indicated a view that proceedings using a video link are relevantly "before" the Court and that the relevant examination is "before" the trial judge. I also accepted the analysis from other cases that "a video link is, for all practical purposes, very much the same as hearing evidence in court". But these pronouncements were in respect of power or jurisdiction. While it is legitimate to construe statutes broadly to find a power in the face of technological developments it does not necessarily follow that common law doctrines based on the doctrine of necessity and on public policy will adapt at the same pace. Technological advances bring their own peculiar problems and solutions are not always easy to find and to implement. For example, in Dow Jones Company Inc v Gutnick (2002) 210 CLR 575 Kirby J, at 612 [66] adopted some remarks of Lord Bingham of Cornwall that in its application to the law of defamation the Internet will require "almost every concept and rule in the field ... to be reconsidered in the light of this unique medium of instant worldwide communication".

82 I am concerned at the ramifications of Dow Jones as similar issues may arise in this case. In Dow Jones a report was included in a business news service conducted by the defendant. It was made available through the Internet. The impugned report was prepared in New York and transferred to computers operated by the defendant in the United States from which it was made available (by downloading) to subscribers to the service by computers that had access to the Internet. The plaintiff was a resident of Victoria and some of the subscribers to the news service were situated in Victoria and had the capability to download the report in that State. The plaintiff alleged that the report was defamatory and commenced proceedings in Victoria. The particular question with which the High Court was required to deal was whether Victoria was the appropriate forum for the action. In the course of deciding that it was, the Court held that a report included on the Internet is published in the location where it is downloaded.

83 This is neither the time nor the place to embark on a comprehensive analysis of technical specifications of the video link facilities that would be employed. They are not Internet based although one option for the transmission and display of documentary images is to use an Internet facility. Nonetheless, the way in which images and sound are put into a computer in, for example Perth, and transmitted to, for example London to be displayed on screens and computers in London has some aspects that might be described as "downloading".

84 There are many cases in which Australian courts have made orders for the taking of evidence by video link from foreign places. The defendants prepared a schedule noting 17 cases in which an application had been made for the taking of evidence by video link. Counsel for both parties indicated that in no judgment of which they were aware was the question of immunity discussed. It is most unlikely that in any of those cases was the question of immunity raised during argument. Had it been raised it would surely have been referred to in the judgments. In ASIC v Rich at [17] and [18] Austin J listed a large number of cases in which video link evidence had been discussed. So far as I have been able to ascertain the immunity question was not raised in any of them. The same can be said for ASIC v Rich itself. While it is surprising that an issue of this importance has not previously been referred to in judgments its absence does not of itself indicate that the perceived problem does not exist.

85 The defendants submitted that in the process of taking evidence by video link to London in the circumstances envisaged in this application this Court would be a court of justice for the purposes of the English common law and would enjoy the immunities conferred on such a court. Alternatively, if it were not strictly a court of justice within the meaning of the common law rule it would be a tribunal to which immunity attached. The defendants' submissions were thorough and carefully considered. What follows is a summary of the defendants' arguments in this respect.

86 In Anderson v Gorrie [1895] 1 QB 668 the Court of Appeal recognised judicial immunity in relation to proceedings in the Supreme Court of Trinidad and Tobago. Lord Esher MR described the defendants as "judges of a Supreme Court in a colony" (at 670). His Lordship then said that under the common law of England no action would lie against the defendants. Anderson was applied in Sirros v Moore [1975] QB 118 and has been frequently cited in cases dealing with the issue of judicial immunity: see, for example, Wentworth v Wentworth [2000] NSWCA 350; (2001) 52 NSWLR 602, at 612.

87 English law recognises courts of other countries. Indeed, English statutes specifically provide for the taking of evidence for use in civil proceedings carried on under the laws of a foreign country: Oaths and Evidence (Overseas Authorities and Countries) Act 1963 (UK); Evidence (Proceedings and Other Jurisdictions) Act 1975 (UK). Under the 1963 Act a court or judicial authority of a foreign country has the power to administer oaths in the United Kingdom for the purpose of taking evidence for use in civil proceedings under the laws of that foreign country. Similarly, under the 1975 Act, procedures are set up whereby the High Court of England and Wales can lend assistance to a foreign court's proceedings for gathering evidence in England and Wales.

88 The defendants pointed to the shared heritage of Australian and English courts and the history of the Supreme Court in particular. This was part of their argument that the shared history and "the vestigial remnants of the British Empire" (this Court having commenced life as a colonial court within the Empire) were relevant factors in determining the likely approach of United Kingdom authorities to the immunity question.

89 Section 6 of Supreme Court Act, 1935 (WA) provides that there "shall continue to be" in and for the State a Supreme Court styled "as heretofore" the Supreme Court of Western Australia. The Court is therefore deemed to be and shall be taken to be the same court as was in operation prior to the Act. The general jurisdiction of the Court is the jurisdiction, powers and authorities of the Court of Queen's Bench, Common Pleas and Exchequer, or any of them, exercised in England at the commencement of the Supreme Court Ordinance, 1861: see s 16.

90 The issue of what is a "court" for the purposes of the immunity rule was discussed in Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431. Lord Esher MR, at 442, observed that the rule was "applicable to all kinds of courts of justice", and extended to tribunals which had similar attributes. His Lordship considered it undesirable to attempt a definition of a "court" but observed (at 446) that there are many courts which, though not courts of justice, are nevertheless courts according to law. The immunity applied not only to proceedings in a court of justice but also to proceedings in a body that was a court in law.

91 The defendants submitted that whatever else might be said this Court operated as a "court of justice" and there was no reason to suggest that English law would not regard this Court as a "court" for the purpose of the rule.

92 It was also contended that the public policy underlining the rules as to immunity remains appropriate to this court taking evidence in the United Kingdom: Saif Ali v Sydney Mitchell & Co [1980] AC 198, at 222 per Lord Diplock (who quoted and applied a dictum of Starke J in Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130, at 141); see also Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543, at 557-58. On this basis the defendants contended that proceedings in the Supreme Court of Western Australia when taking evidence by video link in the United Kingdom are properly characterised as judicial proceedings in a court recognised by English law.

93 The defendants raised an alternative argument. This was to the effect that the immunity recognised by English law extends beyond "courts" and applies to "tribunals" recognised by law which have certain attributes and that this Court possessed those attributes. In Trapp v Mackie [1979] 1 WLR 377 the House of Lords considered the requirements for recognition of a tribunal "which, although not Courts of Justice, nevertheless act in a similar manner to that in which Courts of Justice act" (at 379). The tribunal has to act in a manner similar to a court of justice. The recognition is not confined to tribunals constituted or recognised by an Act of the English Parliament (at 378-380, 385-386).

94 The authority under which the tribunal acts is as one of Her Majesty's courts in the State of Western Australia. Whilst its authority is exercised in what is now an independent state, it is authorised by the law of Western Australia to act as a Court of Justice and thus meets the requirement of having the requisite authority to act. This authority is in contradistinction to purely domestic tribunals which would not be recognised under this criterion.

95 The defendants submitted that this Court was therefore a tribunal "recognised by law" from the perspective of English law. Such recognition is shown also by the 1963 and 1975 UK statutes referred to above empowering a foreign court to administer oaths authorising the High Court of England and Wales to lend assistance to a foreign court's procedures for gathering evidence in England and Wales.

The Bell Group Ltd (In Liquidation) & Anor v Westpac Banking Corporation & Anor

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (326 paragraphs)

The Bell Group Ltd (In Liquidation) & Anor v Westpac Banking Corporation & Anor (4) [2004] WASC 162 (23 July 2004)

Parties

Legislation Cited (12)

Cases Cited (21)