Versace v Monte

REASONS ON NOTICE OF MOTION AND OTHER APPLICATIONS 1 Four days have been set aside for the hearing of this matter, commencing on 29 October 2001. I have already given directions and expressed my conclusion. I now give my reasons. 2 When this matter came on for directions this morning, Mr Evatt announced that he had recently come into the matter and that he now appeared for the respondents. He informed me that the respondents wished to seek further orders in relation to the hearing of the matter and that this would call for the vacation of at least some of the hearing dates fixed. 3 The matter was fixed for hearing some months ago by consent and a number of directions hearings have been conducted in the course of which, for the most part, orders were made by consent. In respect of a number of these orders there has not been compliance on the part of the respondents and this was acknowledged. 4 It has previously been agreed between the parties that the matter should proceed on the basis that the issues of liability and damage will be considered separately. The matter fixed for hearing on 29 October involves the determination of liability questions. 5 Mr Evatt informed me that the respondents wished to seek orders in relation to the hearing and amendments to the defence as well as to make a cross-claim and join additional parties. He also requested particulars, discovery and the administration of interrogatories, none of which had previously been sought. No evidence had been filed in support of these applications. 6 Mr Cobden appeared for the applicants and made submissions in opposition to a number of the orders sought. He pointed out that he was not given any prior notice of the applications which are presently before me. 7 There are only nine working days between these applications and the date fixed for the hearing and, in this respect at least, the circumstances in which this application is made differ substantially to those before the High Court in the case referred to by the respondents: Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146. 8 I was informed that there will be a number of witnesses from overseas and arrangements are currently being made for the taking of some of that evidence by video. Counsel for the applicants informed me that he will be leaving Australia tomorrow to discuss the case with his clients in Italy and to make further preparations for the hearing. He said that he will not return until shortly before the hearing date. 9 The principal submission for the respondents was that there should be a separate consideration of a question now sought to be raised as to whether the respondents were engaged in the course of carrying on a business of providing information pursuant to the provisions of s 65A of the Trade Practices Act 1974 (Cth) ("the Act") which exempts "a prescribed information provider" under the relevant sections of the Act. 10 It is said that this is an appropriate case for making an order for decision of the question whether the respondents are within that description as a separate question for hearing and determination before the trial pursuant to the provisions of O 29 r 2 of the Federal Court Rules. 11 In my view, this question should be considered in conjunction with the hearing of the trial and should not be segregated out as a separate issue. The usefulness of such a procedure depends on whether the determination of the question, in isolation, is likely to make a substantive hearing unnecessary or whether the hearing time will be shortened if the question is answered in a particular way. In many cases the experience of the Court has been that it is undesirable to isolate a preliminary question of law when the other issues in the case have not been resolved: Cabal v Attorney-General [2001] FCA 1234 at [2] and [3]. The segregation of issues, with consequent appeals, can often fragment a case to such an extent that use of the procedure is counter-productive. In this case, determination of the question raised by the respondents will not conclude the matter nor, in my view, will it shorten the hearing. 12 Nor am I presently persuaded that if the Court decides the question whether the respondents come within the category of "information provider" favourably to the respondents, then this Court will have no jurisdiction with the consequence that the matter will be remitted to the Supreme Court for hearing of the defamation issue. Accordingly, at this point in time, I do not propose to direct the separating out of the foreshadowed question under s 65A of the Act. Nor do I consider that it should be considered prior to the trial. 13 It was also submitted that because the matter involves a claim in defamation, it should be heard by a jury. I do not think that this is the appropriate course. No foundation has been laid for this suggestion and, accordingly, I am not prepared to accede to this submission. Nor is there any basis for transferring the proceedings to a State Supreme Court because one of the issues in the case involves a collateral claim in defamation. 14 At this extremely late stage, the respondents also sought leave to amend the defence extensively and to administer interrogatories. Since the amendments were only made known to the applicants on 15 October, I will not grant leave. The applicants, however, should have an opportunity to consider the proposed amendments in order to see whether there is any agreement on any of the proposed amendments. I will not make any order in relation to the filing of a cross-claim at this point. Nor will I make any order that additional parties be joined to the proceedings. This is not a case where any basis has been made out to warrant an order that interrogatories should be administered. The applicants also pointed out that no request for particulars has been made but they indicated that if a proper request for particulars is made they will, to the extent the limited time available permits, act promptly to respond. 15 I will not make an order for discovery at this stage because no request was made until this late point in time. The parties have proceeded on the basis that discovery was not necessary. I note that the applicant indicated that if a proper request is made for specified types of documents to be produced under a notice to produce, it will use all reasonable endeavours to locate and make available such documents as are appropriate and relevant. 16 I record that in relation to the question of the taking of evidence by video link, the parties are in substantial agreement and I have made orders permitting such a course to be adopted. However, I note some discussion will take place between the parties in relation to the evidence from one witness mentioned at the hearing this morning and, therefore, I will make no determination in respect of the evidence of that witness with respect to the use of video links. Generally speaking, given the advanced state of video link technology and because of the convenience of this procedure and the savings in time and cost it provides, a substantial case needs to be made out to warrant the Court declining to make an order for evidence to be taken by video link, especially where evidence is adduced from various witnesses: see McDonald v Commissioner of Taxation [2000] ATC 4,271 at [21]-[22]; Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 and cases there cited. In the latter case, Katz J, at [25], said: "I find a strong current of authority in favour of permitting the relatively new video link technology to be used, in the absence of some considerable impediment telling against its use in a particular case. I do not find in this case, having regard to the matters put to me by counsel for the respondents, anything sufficiently out of the ordinary to cause me not to permit Dr Roulin's evidence to be taken by video link." (Emphasis added) 17 There is no considerable impediment in this instance, nor is the present case out of the ordinary insofar as the use of video link technology is concerned.