Unilever Australia Limited v Revlon Australia Pty Ltd

REASONS FOR JUDGMENT 1 The applicant/cross-respondent ("Unilever") has applied for the testimony of two of its witnesses, Professor David William Thornthwaite and Ms Ann-Marie Carvell, to be given from the United Kingdom by video link in accordance with s 47A of the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act"). 2 The respondent/cross-claimant ("Revlon") does not oppose the application in relation to the testimony of Ms Carvell. However, it opposes the application in relation to the testimony of Professor Thornthwaite. 3 In support of its application, Unilever relied on an affidavit of Mr Andrew Salgo, Unilever's solicitor, made on 2 October 2014. The affidavit refers to communications between the parties, and with the Court. Exhibited to the affidavit is a confidential exhibit which sets out Professor Thornthwaite's personal circumstances that have caused the application to be made. 4 Unilever's application is made in the following context: (1) On 30 June 2014, Unilever filed an affidavit made by Professor Thornthwaite on 27 June 2014. The affidavit states that Professor Thornthwaite is employed as a Lead Scientist for Unilever UK Central Resources Ltd at the Research and Development Port Sunlight Laboratory. It states that Professor Thornthwaite is in charge of scientific leadership at the facility, providing coaching, monitoring and scientific input to all of the Unilever business on matters of organic chemistry. Professor Thornthwaite deposes that he has read, understood and complied with the Federal Court of Australia Practice Note CM7 on "Expert Witnesses in Proceedings in the Federal Court of Australia". The affidavit is arranged under the following hearings: (a) How antiperspirants work - my opinions (b) Reaction between hydrogen peroxide and thiols - my opinions (c) Hydrogen peroxide and catalase - my opinions (d) The redox reaction is pH dependent - my opinions (e) Competition with other substances, including cysteine - my opinions (f) Different locations of hydrogen peroxide and malodour thiols - my opinions (g) Conclusions - efficacy of hydrogen peroxide in Mitchum Clinical (h) Stabilisation of hydrogen peroxide in Mitchum Roll-on - my opinions (i) The oxygen impact on underarm odour - my opinions; (2) By letter dated 3 July 2014, Mr Salgo wrote to my associate to draw to the Court's attention the prospect that each party would seek to have some witnesses cross-examined by video-link. These witnesses included Professor Thornthwaite; (3) At a directions hearing on 8 July 2014, the prospect of video link examination was discussed. The Court was informed that the parties agreed amongst themselves that the use of video link was appropriate for each side. Senior counsel for Unilever, Mr Cobden SC said (without contradiction or qualification by counsel for Revlon) that no substantial factual dispute was anticipated, and no credit issue had been identified. On that basis, I told the parties that I would make an order in chambers under s 47A of the Federal Court Act permitting the evidence to be given by video-link. Orders were made, including that Unilevers' evidence in reply be filed and served by 15 July 2014 (although this order was vacated on 8 September 2014); (4) No draft consent order of the kind foreshadowed on 8 July 2014 was sent to my chambers; (5) At the time when the final hearing of the proceedings was fixed to commence on 17 July 2014, the parties agreed to orders including an order that Professor Thornthwaite's evidence be given by video link. However, the fixture for 17 July 2014 was vacated and the consent orders were not sought from the Court; (6) On 5 August 2014, Professor Thornthwaite's cross-examination and the commencement of the hearing was listed for 4:30 pm on 9 September 2014. The intention was that Professor Thornthwaite give his testimony by video-link that afternoon; (7) On 27 August 2014, Professor Thornthwaite's second affidavit, being an affidavit in reply, was served. Professor Thornthwaite's second affidavit responds to three affidavits served on behalf of Revlon, being affidavits of: (a) Professor Patrick Perlmutter sworn on 11 July 2014 (b) Dr Michael Traudt sworn on 12 July 2014; and (c) Dr Heng (Harry) Cai sworn on 13 July 2014. (8) On 4 September 2014, Revlon's solicitor, Ms Katrina Rathie, sent an email to Mr Salgo attaching a proposed timetable for the hearing, and said, relevantly: We cannot guarantee that Prof Thornthwaite will be finished in 4 hours, even assuming that the video facility works perfectly and that we are permitted to cross-examine for 4 hours continuously - from 4.30pm - 8.30pm with no dinner break (assuming that Her Honour has a full day sitting on 9 and 10 September). Given that the judge will have been sitting all day, she is unlikely to want to hear cross-examination late for 4 hours. Therefore we recommend that the time to continue Prof Thornthwaite's cross examination should be scheduled for the next available date if he cannot be completed in one late session. (9) Later on 4 September 2014, Mr Salgo received an email from Ms Rathie, stating that it was unlikely that Revlon would be in a position to deal with Professor Thornthwaite's cross-examination on 9 September 2014, and seeking to make alternate arrangements for Professor Thornthwaite's cross-examination. Consequently, the proceedings were relisted before the Court for directions on 5 September 2014. On 5 September 2014, Mr Cobden SC mentioned the possibility that Professor Thornthwaite's cross-examination might take more than one session; (10) On 8 September 2014, the 9 September 2014 hearing was vacated and the proceedings were fixed to commence on 24 and 25 September 2014, and then to resume on 10 October 2014, in the expectation that Professor Thornthwaite's cross-examination would be conducted after ordinary court hours on 10 October 2014; (11) The final hearing commenced on 24 September 2014. On 25 September 2014, Unilever called two witnesses. Professor Diamandis gave his testimony by video-link from Toronto. The evidence took approximately 1.5 hours. Ms Tanon- Gonzales gave her testimony by audio-link from the Philippines after the video screen froze. Her evidence took less than one hour. At the end of the day, I said: One of the things that I have been thinking about as a result of the experience this morning is about the viability of video link for the more contentious expert witnesses. If the parties agree on video link, then that probably goes a long way to resolving my concerns, but I am concerned about my ability to evaluate evidence when it's contentious, seriously contentious, on video link. (12) On 28 September 2014, Ms Rathie sent an email to Mr Salgo, asking whether Professor Thornthwaite would be able to travel to Sydney for the hearing and saying: In light of the detailed evidence including his most recent affidavit, counsel have advised me that the cross examination is likely to be lengthy (at least a day) and require many document exchanges. There is now a very strong preference that he be cross examined in person if possible. The alternative of three evening video conference sessions commencing outside of court hours seems undesirable. 5 The particular reasons why Unilever seeks to have Professor Thornwaite's testimony given by video link concern his personal circumstances. It is unnecessary for them to be disclosed in these reasons except to say that Professor Thornthwaite is not unable to travel to Australia for any legal or physical reason affecting him, although he has not made any enquiries or plans to travel to Australia for the purpose of giving his testimony in these proceedings. He has not made travel plans because, since around early July 2014, Mr Salgo has told Professor Thornthwaite that he would give his testimony via video link. 6 Unilever's evidence does not include independent evidence to support or otherwise explain Professor Thornthwaite's personal circumstances. For example, the matters identified in paragraph 4 of confidential exhibit AMS1 are expressed in the most general terms and, without more, I accord them little weight. 7 I also accord little weight to the second sentence of paragraph 6 of confidential exhibit AMS1 in the absence of evidence as to why obvious solutions are not available or appropriate. 8 In the absence of direct evidence to support paragraph 8 of confidential exhibit AMS1, I also accord little weight to the assertion made in that paragraph. 9 Although I am prepared to accept at face value the strength of Professor Thornthwaite's apparent felt need not to travel to Australia at this time, particularly as expressed in paragraphs 9 and 10 of confidential exhibit AMS1, it is far from clear that his circumstances could not be readily accommodated. 10 There is no reason to believe that Unilever is unwilling to arrange for Professor Thornthwaite to give his testimony orally in court, except that it apparently seeks to accommodate Professor Thornthwaite's personal circumstances.