The BLM Agency Pty Ltd ACN 630 683 000 v The Blaze Agency Pty Ltd ACN 127 223 518

Legislation Cited: Civil Procedure Act 2005 (NSW)
Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: Antov v Bokan (No 2) (2014) 101 NSWLR 142
April Fine Paper Macao Commercial Offshore Ltd v Moore Business Systems Australia Ltd (2009) 75 NSWLR 619; [2009] NSWSC 867
Auken Animal Husbandry Pty Ltd v 3rd Solution Investment Pty Ltd [2020] FCA 1153
Dougan v Mann [2025] NSWCA 109
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115
Li v Wang (No 3) [2024] NSWSC 661
Mulberry Capital Management Pty Ltd v Shen [2022] NSWSC 1023

Category: Procedural rulings

Parties: The BLM Agency Pty Ltd (Plaintiff/Cross-Defendant)
The Blaze Agency Pty Ltd (Defendant/Cross-Claimant)

Representation: Counsel:
R Alkadamani (Plaintiff/Cross-Defendant)
N Riordan (Defendant/Cross-Claimant)
Solicitors:
BBW Lawyers (Plaintiff/Cross-Defendant)
Thomson Geer (Defendant/Cross-Claimant)

File Number(s): 2023/00440674

Publication restriction: NIL

JUDGMENT

Introduction

1. Before the Court is an application brought by Notice of Motion dated 21 August 2025 by the Defendant and Cross-Claimant, The Blaze Agency Pty Ltd (Blaze), for an order pursuant to rule 31.3 of the Uniform Civil Procedure Rules 2025 (NSW) and section 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (the Act) that any evidence to be given by three witnesses it intends to call at the trial of this matter be received by way of audio visual link (AVL). The three witnesses who are the subject of the orders sought are:

2. Mr Jason Ranne, who is resident in the United States of America;

3. Ms Sarah Abt, who is resident in the United Kingdom; and

4. Mr Matthew Vandrau, who is also resident in the United Kingdom.

5. The Plaintiff, The BLM Agency Pty Ltd (BLM), and the other cross-defendants (together, the BLM P****arties) oppose the giving of evidence by AVL of Mr Ranne and Ms Abt, but not of Mr Vandrau.

6. The evidence on the Motion was:

(a) an affidavit of Ms Jodi Walkom sworn 21 August 2025 read by Blaze; and (b) an affidavit of Mr John Fairgray sworn 9 October 2025, and paragraph 54(d) of Mr Fairgray’s affidavit sworn 21 October 2025 read by the BLM Parties.

4. There was no cross-examination of either Ms Walkom or Mr Fairgray and I have considered the matters set out in their evidence.

5. Before coming to the reasons put for and against the taking of the relevant evidence by AVL, it is convenient to summarise the claims in the proceedings.

Summary of claims in the proceedings

6. The following summary is taken from Ms Walkom’s affidavit at [7].

7. BLM pleads that:

(a) Blaze repudiated or alternatively breached a consulting services agreement between Blaze and BLM in respect of BLM providing Blaze with sports agency services (the Agreement); and (b) Blaze breached five separate agreements with third-party consultants by failing to pay fees allegedly owed to the consultants (and the right to recover those fees was allegedly assigned to BLM).

8. BLM seeks relief in the form of damages in the following five categories:

(a) consultancy fees allegedly payable for November and December 2023 in the amount of $55,000.00; (b) a consultancy bonus allegedly payable for 2023 in the amount of $44,000.00; (c) a profit share allegedly payable for the fourth quarter of 2023 – either $20,240.00, $41,951.00 or $61,538.00 depending on the items included in the calculation; (d) BLM’s expenses in the amount of $15,892.23; and (e) third-party consultants’ fees and expenses in the amount of $19,873.84;

9. The five categories total to amounts between $135,132.25 and $176,430.25.

10. Blaze pleads that BLM repudiated the Agreement or, alternatively, Blaze was entitled to terminate the Agreement based on Mr Day’s gross misconduct and denies that it is liable for the alleged loss and damage claimed by BLM.

11. Blaze also brings a cross-claim against BLM and its current and former directors, namely Mr Cameron Day and Mr Damien McGregor-Lowndes. In summary, Blaze’s cross-claim includes breach of contract claims as follows:

(a) BLM breached certain obligations under the Agreement by failing to procure payment of fees in the amount of $83,443.45 that would be payable to Blaze during the fourth quarter of 2023 (QF 2023 fees); (b) in consequence of the alleged breaches by BLM, Mr Day and Mr McGregor-Lowndes breached side agreements they had entered into and parallel with the Agreement to comply with certain of its terms; (c) BLM is liable to pay Blaze $4,195.00 in respect of an overpayment of a profit share for 2023.

12. The application before me concerns the taking of evidence by AVL of three witnesses, Ms Abt, Mr Ranne and Ms Vandrau (in respect of whom the application is not opposed).

Ms Sarah Abt

13. Ms Abt is a full-time employee of Wasserman EMEA LLP (Wasserman EMEA) which is a limited liability partner within the Wasserman Media Group, LLC (Wasserman Group) of which Blaze is a subsidiary. Ms Abt describes herself as “Director, Finance” employed by WMG Management Europe Ltd. She is ordinarily a resident of London and has full-time obligations in a senior position there with Wasserman EMEA. Ms Abt has sworn two affidavits in the proceedings which, generally speaking, concern the following topics:

(a) Blaze’s financial performance during the relevant period; and (b) how the parties performed the Agreement, including in respect of Blaze’s budget forecasts, the services which were provided to Blaze by BLM through Mr Day and MGL, the payment of consultancy fees, consultancy bonuses and expenses and the profit share calculations for 2023.

14. Ms Abt’s evidence largely relies on contemporaneous documents and there are no conversations referred to in her affidavits.

15. There is unchallenged evidence that the flight and accommodation costs associated with Ms Abt attending the final hearing in person are approximately $15,110.00. There is also evidence that, in light of the travel time and time difference, she would likely be required to travel and be away for approximately one week.

Mr Jason Ranne

16. Mr Ranne is the President, Global Talent Representation of Wasserman Group. He is ordinarily a resident in Los Angeles in the United States of America and has full-time obligations there with Wasserman Group.

17. Blaze has served an affidavit of Mr Ranne affirmed 7 April 2025. According to Ms Walkom, Mr Ranne will give evidence on events which occurred in October 2023, including:

(a) Wasserman’s acquisition of Wasserman EMEA; (b) a virtual conference with Mr Vandrau and Mr Day on 11 October 2023; and (c) communications exchanged with Mr Day on 20 October 2023, which Blaze relies on in support of its allegations that BLM repudiated the Agreement and that Mr Day engaged in gross misconduct.

18. Mr Ranne gives evidence of one conversation being the virtual conference on 11 October 2023 with Mr Vandrau and Mr Day.

19. There is undisputed evidence that the flight and accommodation costs associated with Mr Ranne attending the final hearing in person are approximately $17,032.00. There is also evidence that if Mr Ranne were to travel from Los Angeles, he would likely be required to travel and be away for approximately one week.

Mr Matthew Vandrau

20. Mr Vandrau is a Director of Blaze and its immediate holding company, and the President of Wasserman Group for Europe, the Middle East, East Africa and Asia Pacific. As I have mentioned earlier, BLM does not oppose Mr Vandrau giving his evidence by AVL. It is proposed that the evidence be given on 28 November 2025, being a date scheduled to accommodate his availability. Mr Vandrau is ordinarily a resident in London, and he has sworn an affidavit dated 22 April 2025. I have been told that Mr Vandrau will give evidence concerning negotiations between the parties in 2023, meetings and conferences in October 2023 and communications with Mr Day.

21. Ms Walkom has estimated the costs associated for Mr Vandrau to give evidence in person at the trial as being the same as that estimated for Ms Abt.

AVL arrangements and AVL Protocol

22. Ms Walkom’s evidence is that in respect of all three witnesses whose evidence would be subject to the proposed order, arrangements can be made for the giving of their evidence by secure internet connection from a quiet room at the offices of law firms. In the case of Mr Ranne, that would be from the offices of the law firm Nixon, Peabody LLP in Los Angeles, and in the case of Ms Abt and Mr Vandrau, that would be at the offices of the law firm Bird & Bird in London. In each case, Ms Walkom believes that Blaze can arrange for both physical copies of documents and electronic copies of documents to be made available to the witness.

23. In relation to the possibility of Ms Abt giving evidence from London, Ms Walkom acknowledges the time difference between Sydney and London and confirms that Bird & Bird can accommodate Ms Abt giving evidence overnight in London and will have a member of its audio visual team in the office to assist if needed. Wasserman EMEA’s associate general counsel is also willing to attend the offices of Bird & Bird with Ms Abt. I am willing to assume similar arrangements can be made for the taking of Mr Vandrau’s evidence.

24. Ms Walkom has reviewed the AVL Protocol stated in Practice Note DC (Civil) No 1C (the Practice Note) and believes that Ms Abt and Mr Vandrau, giving evidence from the offices of Bird & Bird, and Mr Ranne, giving evidence from the offices of Nixon, Peabody LLP, will comply with the AVL Protocol.

The Act and the Rules

25. Section 5B of the Act concerns the taking of evidence and submissions from outside the courtroom or place where the Court is sitting.

26. Section 5B(1) relevantly provides that, subject to any rules of Court, a Court may on the application of a party to a proceeding before the Court, direct that a person (whether or not a party to proceedings) give evidence by AVL from a place outside of Australia.

27. UCPR r 31.3 provides a power for the Court to make an order that evidence be received by AVL. As mentioned, the District Court has issued a Practice Note in relation to its requirements, and has set out an AVL Protocol (Section 2).

28. Importantly, s 5B(2) imposes limitations on the Court’s power to make orders of the kind sought in this application by setting out preclusive circumstances. It provides:

(2) The court must not make a direction if:

(a) the necessary facilities are unavailable or cannot reasonably be made available, or

(b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or

(c) the court is satisfied that the direction would be unfair to any party to the proceeding, or

(d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission.

29. The operation of s 5B(2) of the Act was recently considered in Dougan v Mann [2025] NSWCA 109 (Dougan v Mann). While the decision whether to permit evidence to be given by AVL is discretionary, the assessment as to the satisfaction of the preclusive circumstances in s 5B(2) of the Act does not involve the exercise of any discretion. At [7]-[8] Bell CJ, with whom Ward P and Leeming JA agreed, said:

“Both parties proceeded on the basis, supported by authority, that the reference to “conveniently” in s 5B(2)(b) of the Act is a reference to convenience generally and may involve taking into account considerations bearing upon convenience not only to the Court but to witnesses and the parties, depending upon the circumstances of the case: see, for example, R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794 at [48]; (2005) 193 FLR 291 where Howie J said:

“There is no doubt in the present case that the evidence could more conveniently be given in the courtroom, if the convenience of the court and the accused are the focus of attention. It would presumably not be more convenient to the witnesses, even if they were prepared to make the journey to Australia. The provision seems to me to be concerned with convenience generally.”

See also Brodie v Streeter [2003] ACTSC 88 at [14]-[15]; (2003) 180 FLR 176; Russell v Scott & Anor [2017] NSWSC 1720 at [121]-[122].

Section 5B(2)(b) of the Act involves a comparative and evaluative judgment being made as to convenience as between the place from which the applicant for the AVL order wishes to give evidence, make a submission or appear, and the place where the court is sitting. It is a judgment to be made in the context of the matter before the court or particular issue or issues in relation to which the evidence, submission or appearance may be germane. While the decision whether to permit evidence to be given by AVL is discretionary, the assessment as to the satisfaction of any of the preclusive circumstances identified in s 5B(2) of the Act does not involve the exercise of any discretion.”

30. A similar approach is to be taken to the criterion of unfairness in s 5B(2)(c). The assessment of unfairness to a party also involves a broad evaluative judgment: Antov v Bokan (No 2) (2014) 101 NSWLR 142 at [46].

31. It may be accepted that the factors in ss 5B(2)(a) and (d) do not call for the same broad evaluative judgment as other limbs of s 5B(2): Mulberry Capital Management Pty Ltd v Shen [2022] NSWSC 1023 (Mulberry Capital) at [12], noting that the observations in relation to s 5B(2)(b) have now been overtaken by the decision in Dougan v Mann.

Consideration

32. The matters put forward by Blaze for seeking the order that evidence be received by AVL essentially relied on the following:

(a) the substantial flight and accommodation costs associated with the witnesses attending the final hearing in Sydney relative to the amounts in dispute; (b) the inconvenience to witnesses who fulfil senior positions with full-time employment commitments in London or Los Angeles to travel to Sydney to give evidence; (c) the nature of the evidence of each witness, the extent to which each witness is expected to give evidence of conversations, and that it was not anticipated that there would be substantial challenges to their credit; (d) the ability to make arrangements for secure internal connections from a quiet room in the offices of the law firm in which the evidence would be given, and for physical and electronic copies of the documents to be made available to the relevant witness; and (e) in the case of Ms Abt (and I assume Mr Vandrau), the preparedness to make special arrangements in view of the time differences between Sydney and London.

33. The BLM Parties submitted a number of points in relation to the evidence of Ms Abt. Without being exhaustive, they were, in essence, that:

(a) she is Blaze’s principal witness, and her evidence, including exhibits, is voluminous; (b) it was submitted that her evidence is of a quasi-expert nature as she will be responding to expert evidence to be adduced by the BLM Parties as to the treatment of several accounting items in Blaze’s 2023 accounts; (c) the BLM Parties, I was told, intend to challenge her on her evidence in many respects as her evidence addresses the calculations by Blaze of a profit share for 2023 – as I understand it, BLM intends to challenge the bringing to account or reversal of certain line items (including legal expenses in the amount of $64,390, the reversal of income in the amount of $44,308, and a bad debt provision of $39,974) in Blaze’s 2023 Profit and Loss Statement, and the propriety of so doing; (d) BLM will also seek to challenge her evidence and cross-examine her as to:

(i) whether BLM and Blaze had agreed on the 2023 budget; (ii) the process and practice for reimbursement of expenses; (iii) the conduct of the parties in relation to the payment of a Consultancy Bonus; (iv) the payment to Blaze’s approved consultants; and

(e) the cross-examination of her evidence will, it was submitted, traverse extensive documentation and it will call for numerous findings and assessments by the Court, although it was accepted that her evidence did not involve any disputed conversations or that her honesty was likely to be in issue;

34. In relation to Mr Ranne, the BLM Parties made, in essence, the points that (again without being exhaustive):

(a) he is Blaze’s central witness in relation to the issue of repudiation, and his evidence includes conversations such that the Court’s assessment of his evidence will be important; and (b) he is Blaze’s key ongoing decision-maker in relation to the proceedings.

35. In relation to both witnesses, the BLM Parties submit that reasonable and proper costs associated with a witness’ attendance will typically be recovered in full by the successful party in the proceedings. It was also submitted that the costs of airfare and accommodation estimated by Blaze was excessive, including because of the delay and the length of stay assumed to be necessary for the witnesses in Sydney.

36. In my judgment, taking into account the competing considerations and conveniences and fairness to the parties, an order should be made for the evidence of Ms Abt and Mr Ranne (as well as Mr Vandrau) be received by AVL.

37. I am not satisfied that any of the preclusive circumstances identified in s 5B(2) of the Act are engaged for the purposes of the present application.

Section 5B(2)(a)

38. In my assessment, the necessary facilities to receive the evidence of all three witnesses by AVL are available or can be made available. This was accepted by the BLM Parties.

Section 5B(2)(b)

39. The authorities referred to earlier recognise that s 5B(2)(b) of the Act involves a comparative and evaluative judgment being made as between the place from which the applicant for the AVL order wishes to give evidence and the place where the Court is sitting. The Court can take into account the convenience of the Court but also the convenience to witnesses and the parties, depending on the facts of the case.

40. This Court has ample experience in the conduct of hearings or receiving of evidence by AVL and has had in operation a dedicated Practice Note since November 2023. The Court routinely conducts proceedings and receives submissions and evidence via AVL in both its criminal and civil jurisdiction.

41. It is plainly convenient to Ms Abt, Mr Ranne and Mr Vandrau to give evidence from their cities of residence rather than travelling to Sydney for a week. I accept Blaze’s submission that the costs associated with the witnesses attending the final hearing in Sydney, are substantial and disproportionate to the quantum in dispute.

42. Both BLM’s claim and Blaze’s cross-claim are for relatively modest sums. Notwithstanding, both the claim and the cross-claim come properly within this Court’s jurisdiction and the Court must deal with them. The entitlement of parties to have their rights tested and their disputes resolved (fairly and according to law) is not dependant on the size of their claim.

43. However, under s 60 of the Civil Procedure Act 2005 (NSW) (CPA), the practice and procedure of the Court ought to be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute. It has been held for the purposes of s 60 of the CPA that the quantum or value of a claim is an element of the “importance of the subject matter of the complaint”: April Fine Paper Macao Commercial Offshore Ltd v Moore Business Systems Australia Ltd (2009) 75 NSWLR 619; [2009] NSWSC 867 at [8] (White J).

44. In these circumstances, the combined costs of flights and accommodation of the two witnesses of Blaze in respect of whom consent for AVL has not been given exceeds $30,000.

45. The BLM Parties submit that such costs would be recoverable by Blaze if its defence or cross-claim succeeds. But these costs may not be recoverable if Blaze is unsuccessful, or in certain circumstances even if it does succeed. The point is that costs will necessarily have to be incurred if the witnesses were to come to Sydney to give evidence, and the costs are substantial relative to the amounts claimed by both sides in this litigation.

46. I do not regard the challenges by the BLM Parties to the estimates of accommodation and flight costs in Ms Walkom’s affidavit as of any substance. Ms Walkom was not cross-examined, and no alternatives were put in the BLM Parties’ evidence in response. There was also an unhealthy tension in the submissions put by the BLM Parties that the length of stay in Australia for the witnesses was unnecessary when the importance and complexity (at least in relation to Ms Abt) of their evidence and cross-examination was emphasised.

47. The thrust of oral submissions of counsel to the BLM Parties was that the inconvenience of travel was not so significant that it would be less convenient for the witnesses to give evidence in Sydney having regard to the efficiencies of process in Court, the immediacy of the witness and the solemnity to all participants of the physical Court room. I do not consider these factors to be of substantial weight in the evaluative judgments I have had to make in the circumstances of this case.

48. While it is fair to say that in many cases it will be convenient for parties to give evidence at the place of the Court, the Practice Note requires that court etiquette and standards are to be adhered to during the attendance of any person by AVL (paragraph 2(b)). Solemnity can be communicated by the way proceedings are conducted, the demeanour of the trial judge, the demeanour of the counsel and the formal processes of the Court, even if by audiovisual link: Li v Wang (No 3) [2024] NSWSC 661 (Li v Wang) at [21] (Lonergan J).

49. I also observe that under the arrangements proposed, the witnesses will be giving evidence in the rooms of offices of a law firm in compliance with the AVL protocol in the Practice Note. There is no reason to believe that those witnesses will not appreciate the solemnity of the occasion of their having to give evidence in the proceedings.

50. The BLM Parties make reference to a number of cases where orders to give evidence via AVL had been given where there was difficulty or burden in the witness attending Court in person: for example, Mulberry Capital at [32] (where the witness was a diabetic in bad health who could have been exposed to COVID-19); and Li v Wang at [16]-[17] (where the witness would have had to travel to Australia without a valid visa). No such difficulties as in those cases is said to exist in respect of the witnesses the subject of this application. However, such cases turn on their own facts, and do not restrict the comparative and evaluative judgments that must be made by this Court under s 5B(2)(b) in the matter before it and the particular issues in relation to which the evidence may be germane.

51. There is also no good reason to suppose that the cross-examination in this case cannot be undertaken efficiently and effectively if evidence is given by AVL. Since the COVID-19 pandemic, Courts and practitioners have routinely undertaken proceedings remotely. In the case of Ms Abt, whose cross-examination, I am told, may involve consideration of many documents, there will be a requirement for the proper preparation of a Court Book to which she and the participants will have access. It is proposed that physical and electronic copies of documents can be made available to her and other witnesses (as is contemplated by AVL Protocol in the Practice Note). I consider that the cross-examination would be conducted effectively and fairly by the counsel and solicitors which have been retained by the parties.

52. I do not consider the kinds of issues which are to be tested in Ms Abt’s evidence will make it inconvenient or unfair for her to give evidence by AVL. It is hard for me to see why the explanation or challenge of accounting concepts or the treatment of various items in Blaze’s 2023 accounts cannot be conducted conveniently or fairly by AVL. As I have stated, Ms Abt’s evidence does not involve her recount of conversations and there is no expectation that she will be challenged as to her credit, in the sense of the honesty or truthfulness of her testimony.

53. As to the length of cross-examination of Ms Abt, this is ultimately a matter for the cross-examiner, but it is necessary to note that the entire proceedings have been set down for 5 days. Further, measures can be put in place to accommodate Ms Abt’s evidence being given overnight in London time during what is this Court’s normal sitting hours.

54. In relation to Mr Ranne, I was told there is to be one disputed conversation in his evidence, although it did not necessarily give rise to ‘credit’ issues.

55. The areas of cross-examination of Mr Ranne, including the scope of his interactions with BLM, his authority and his reaction to the 20 October 2023 email, do not seem to me to be to be topics that make the reception of his evidence inconvenient if given by AVL. His evidence was said to be important and central to the issue of repudiation. As Blaze correctly submitted, the question of whether repudiating conduct has occurred is to be determined by objective rather than subjective circumstances: Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 at 135-136, [44].

56. There was no submission that Mr Ranne’s evidence would be lengthy or involve consideration of voluminous documents.

57. In the circumstances, I am not satisfied that the evidence of Ms Abt, Mr Ranne or Mr Vandrau can more conveniently be given in Sydney.

Section 5B(2)(c)

58. As to s 5B(2)(c) of the Act, I am not satisfied that a direction to receive evidence by AVL of any of the witnesses would be unfair to any party.

59. I did not assess that there will, in this case, be a material diminution in the ability to cross-examine the witnesses whose evidence is to be given by AVL in the circumstances of this case.

60. Several cases were cited by Blaze where trial judges have observed that there has been no material disadvantage in the ability of the Court to observe witnesses and assess their credit when evidence is given by AVL. One of the cases cited was Mulberry Capital at [20]-[23] and [26]:

It is preferable generally, and in particular where credit is in issue, for the protagonists to be present in Court. But it is also true that technical deficiencies such as unstable connections and transmission lag times which in the past were significant impediments to effective cross examination remotely are (to the extent that they still exist) no longer anywhere near as significant as they once were.

Since the commencement of the COVID-19 pandemic, there has, of necessity, been a vast increase in the number of cases that have been heard remotely, and significant experience has been gained. My experience has predominantly been in substantial commercial cases, including document-heavy ones. This case has a plain commercial flavour.

Since March 2020, the vast bulk of commercial cases heard in this Court have been determined by way of remote hearings. Unless practitioners or parties were too ill to participate, matters, including multi-party ones, proceeded almost with no exception.

The experience of individual courts and other judges may differ, and of course specific experiences will be in the context of particular circumstances, but with almost no exceptions, my experience over the past two years has been that AVL has worked satisfactorily, including in cases where credit has been heavily in issue. That is not to say that physical hearings would not have been preferable.

…

A view could perhaps be taken that there is potentially an element of unfairness if counsel for Mr Shen has to cross examine Mr Huo remotely, but counsel for the plaintiffs could cross examine in Court with Mr Shen present. On the other hand, the view may be taken that it may be a forensic advantage for Mr Shen, if in fact he is a truthful witness, for him to be present in Court, whereas Mr Huo will not be. Nevertheless, to accommodate any perceived unevenness in the playing field which may be held by Mr Shen, I will permit him to elect to give his evidence remotely, or to be in Court with cross examining counsel being remote. Counsel for the plaintiffs made it clear that there would be no objection to this.

61. Another was Auken Animal Husbandry Pty Ltd v 3rd Solution Investment Pty Ltd [2020] FCA 1153 at [49]:

My experience of having now conducted several remote (but no less real) hearings with rigorous cross-examination, including as to credit and on allegations of fraud, on the Microsoft Teams platform is similar to that of Perram J as expressed in Capic v Ford Motor Company of Australia Ltd (Adjournment) [2020] FCA 486 at [19] –[20] , viz. the judge stares at the witness from about one metre away such that their perception of the witness’s facial expressions is much greater than it is in court. To that I can add that cross-examining counsel has that similar benefit. My experience has been that well-prepared cross-examination can be as, or just about as, effective in a virtual setting. My impression has been that counsel, even those who were initially sceptical, have shared that experience.

62. Of course, the experiences of some judges has been less positive.

63. In his oral submissions, counsel for the BLM Parties relied on all of the factors he raised in connection with the question of convenience under s 5B(2)(b), but without seeking to identify any additional or particular unfairness to the BLM Parties. The written submissions of the BLM Parties did not allege any unfairness, but advanced the proposition that “the Court will be a better position to assess” the evidence of the witness if given in person (at [68] and [72]).

64. As I have mentioned, the nature of the evidence to be given by Ms Abt and Mr Ranne is not of a kind which would, if given by AVL, be expected to give rise to any particular species of unfairness to the parties cross-examining the witnesses. The witnesses will have access to hard copy (and soft copy) documents which counsel wishes to cross-examine them on, and the evidence is expected to be given during normal Sydney Court hours.

65. The issues to be explored with Ms Abt can, with appropriate preparation and compliance with the Practice Note, be conducted fairly to both sides. Similarly, I am not persuaded that the cross-examination of Mr Ranne over AVL will be unfair to either party.

Section 5B(2)(d)

66. Finally, in relation to s 5B(2)(d), I am satisfied that each of the witnesses the subject of the application will give evidence. They each have a continuing association with Blaze or entities in the Wasserman Group. Each has evidently co-operated in the preparation of their evidence. There has been no suggestion that the compulsory powers of this or any other Court might be necessary to secure their attendance to give evidence.

Discretion

67. I am not satisfied that any of the impediments in s 5B(2) apply. Accordingly, the discretion to make the orders sought may be exercised.

68. In my judgment, weighing up the competing positions and factors raised by the parties, it is appropriate in the exercise of my discretion to make an order that the specified witnesses’ evidence be received by AVL.

69. I have taken into account the matters I have referred to above and those which I have considered for the purpose of assessing the exclusionary circumstances in s 5B(2) of the Act: see Mulberry Capital at [14].

70. The BLM Parties made a number of additional submissions which I understood to be directed to the exercise of discretion.

71. First, it was submitted that I should not exercise my discretion because of the delay of the Defendant in making this application. These submissions have no merit. The possibility of the application being made was raised at a Court listing on 20 June 2025 which resulted in the final allocation of the hearing dates for the trial. On that day, the Defendant’s solicitors sought the Plaintiff’s consent for their witnesses to appear by AVL. On 25 June 2025, the Plaintiff communicated their objection to Ms Abt and Mr Ranne’s evidence being given by AVL, but did not oppose Mr Vandrau’s evidence being given by AVL. On 21 August 2025, Blaze filed the application I am now considering and an affidavit in support. In my view, there was no relevant delay: see Practice Note [1.2]-[1.3]. In any event, no prejudice to the BLM Parties was identified as having been occasioned by the asserted delay.

72. Second, I do not place any significant weight on the fact that Mr Ranne is Blaze’s ongoing decision-maker in relation to the proceedings. He can be expected to give instructions from Los Angeles. In any event, it would not be reasonable to expect him to attend Court for the entire duration of the proceedings even if he was required to give evidence in Sydney. I would expect in a case such as this that the Defendant’s legal representatives would ensure they have clear lines of communication with whoever is the key decision-maker in the proceedings, and that they would be able to obtain meaningful instructions from their client throughout the trial.

Costs

73. In my view, the costs of the Motion should follow the event. Although BLM advised that it would be prepared to consent to the Defendant’s AVL application in relation to Mr Vandrau on 25 June 2025 (before the Notice of Motion was filed), it has resisted orders in relation to Ms Abt and Mr Ranne.

74. For these reasons, I will make orders consistent with Orders 1 and 2 sought in the Defendant’s Notice of Motion filed 21 August 2025.

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