Walker Charlotte Street v Rio Tinto Services

Judgment - Order for Mr Usher's evidence to be taken by audio visual link or on examination 1HIS HONOUR: I gave reasons earlier today disposing of an application by the defendants and subpoenaed parties to set aside subpoenas. I will not repeat what I there said as to the nature of the issues in the proceedings. 2One of the witnesses to be called by the defendants (or intended to be called by the defendants) is a Mr Neil Usher. Mr Usher was at the relevant time an employee of the Rio Tinto Group. He is now, as I understand it, employed by the United Kingdom's organisation, British Sky Broadcasting Group plc, generally referred to as BSkyB. Mr Usher had been willing, nonetheless, to come to Australia to give evidence. 3It appears to be common ground that Mr Usher is a central figure in the relevant events of this case. That is so for apparently two reasons. One is that he was the immediate superior of a Mr Christie, who is said to have been involved in many of the discussions and other interactions between the parties on which the plaintiffs base their case. Another is that, for a time, Mr Usher himself was involved personally in those discussions and interactions. 4The affidavit of the defendants' solicitor, Mr Klotz, sets out in some detail Mr Usher's role and responsibilities in his employment by BSkyB. Of particular significance, Mr Usher is presently concerned with supervising the moving of BSkyB staff to something which he calls the "Osterley Campus". When the matter was set down for hearing, Mr Usher apparently believed that this move would be completed in time to enable him to come to Australia to give evidence. However, he has informed Mr Klotz that, by reason of delays in the underlying construction project, this is now not possible. Mr Usher has said to Mr Klotz that he thinks that the move is likely to take place over the very time that these proceedings are fixed for hearing. 5In those circumstances, Mr Usher has said, in emails to which the Court has been taken, that he is not prepared to travel to Australia (I am not quoting from what the emails say but, rather, drawing what seems to me to be the obvious inference from the statements made in them). 6Specifically, in an email of 14 April 2014, Mr Usher said, among other things: "...I doubt there would be any possibility of my travel to Australia until 28/29 June at the earliest. Requesting permission to travel any earlier is not even a subject I wish to raise with my employer, the timing could not be less practicable." 7In a later email, sent on 18 April 2014, Mr Usher amplified this statement: "It would be inconceivable given my responsibilities that I would be permitted by Sky to be absent for a full week during June. I feel that such a request would seriously jeopardise my position at Sky, and therefore am not prepared to request the time is made available." 8As I have said, I draw the inference from those statements (both in their own terms and considering their context, which I will not take up time by quoting) that Mr Usher will not come to Australia to give evidence in the course of the hearing. 9There is of course the possibility that the move will be further delayed, by reason of further delays in the underlying construction project. However, the application to which I will turn in a moment has to be assessed by reference to the evidence as it is, not as to what might arise between now and the trial date. I should perhaps have mentioned earlier that the trial is fixed for four weeks commencing 2 June 2014. 10The defendants seek an order either that Mr Usher's evidence be taken by audio-visual link (AVL) or that it be taken on examination pursuant to the Evidence on Commission Act 1995 (NSW) and UCPR Pt 24. 11Mr Usher has indicated that he would be prepared to participate in evidence by AVL, on certain conditions. 12Evidence by AVL seems to me to be unsatisfactory. First, it is clear that Mr Usher is to be a witness of some significance. The Court has been informed that his credibility will be in issue. Assessment of credibility is a difficult task, and in my experience is not made any easier by the interposition of electronic media between the witness and the Court. 13Further, given the range of dealings in which Mr Usher was involved either directly or indirectly, and the very nature of the plaintiffs' case, it is likely - I would have thought, inevitable - that the cross-examination of Mr Usher would range over many topics and involve there being put to him numerous documents. There is no doubt that as a matter of theory this can be done by AVL. It would be facilitated if (for example) there were an electronic database and if, at the remote location, there were a person familiar with the database who could assist Mr Usher to find, so as to read and then answer questions on, documents within it. But the procedure is still clumsy. 14Another complication, as Austin J pointed out in Australian Securities and Investments Commission v Rich (2004) 49 ACSR 578 is that the time difference between London and Sydney means inevitably that one or other of the parties involved - the Court and the witness - and indeed more likely both, will be seriously inconvenienced. In the case of the Court, it will mean sitting late hours. In the court of the witness, it will mean working early hours. Or it may be that those positions could be reversed. That is not satisfactory, particularly in the context of the need to finish the hearing within the allotted time if at all possible. 15I have not attempted to give an exhaustive statement of the reasons why, in my view, AVL evidence is inappropriate in this case. It is sufficient to say that I do not think that it is, and that I would not make an order that Mr Usher's evidence be taken by that means, at least where (as appears to be the case) there may be a viable alternative. 16Mr Usher has said also that, if evidence were to be taken in London, pursuant to an examination order, he would be prepared to cooperate. Of course, if that were to happen, there would be coercive powers available, through the courts of the United Kingdom, to ensure that he did cooperate. It would entail very considerable inconvenience and expense. The Court and the parties' representatives would have to travel to London. The documents would have to travel with them. And a lot of arrangements will have to be made in a relatively short time. 17Nonetheless, taking Mr Usher's evidence in this way would mean, particularly where (as is proposed) the trial judge would be the examiner, that many of the disadvantages to which I have referred, in the case of AVL evidence, could be overcome. In particular, the assessment of credibility is likely to be facilitated, not just for the Court but also for the parties and their legal representatives, if everyone is in the same room at the same time, in full sight of each other. 18Thus, subject to the practicalities, and bearing in mind the fact that although the expense will be substantial, the amount at issue in this case is very substantial (it is said to be in the order of $20M to $25M), I conclude in principle that it would be better, if it can be arranged, to take Mr Usher's evidence on examination. 19That directs attention to the requirements of s6 of the Evidence on Commission Act. By s6 (1), this Court (among others) may make orders for examination of a person on oath outside Australia. It is required to take into account "the interests of justice" in deciding whether to do so. Section 6 (2) then provides: (2) In deciding whether it is in the interests of justice to make such an order, the matters to which the superior court is to have regard include the following: (a) whether the person is willing or able to come to the State 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 making or refusing to make the order. 20For the reasons that I have given, I am satisfied that Mr Usher is not willing to come to the State to give evidence. Whether or not, by reason of that unwillingness, he is not "able" is a matter that need not be pursued. 21It appears to be common ground, and on the material before me I am satisfied, that para (b) is satisfied. 22If the order is refused, then (unless the Court can be persuaded to revisit its rejection of evidence by AVL) the inevitable consequence will be that the defendants lose the benefit of Mr Usher's evidence. 23In assessing para (c) in the context of what is a relatively late application, it is necessary to bear in mind that the defendants had intended, as had Mr Usher, that his evidence would be given in this State. It was not until 14 April, when the defendant's solicitors commenced their preparation for the hearing, that Mr Usher indicated that he would not be willing to come to this State. This is not a case where, for example, the defendants have known for some time of Mr Usher's unwillingness, and have sat upon it, in the hope of achieving some tactical purpose thereby. On the contrary, I find that the defendants acted promptly to check on Mr Usher's availability when it was relevant to do so and that, having ascertained the problem with his availability, they notified the plaintiffs and the Court, and brought the matter before the Court, as soon as they could have done so in any practicable way. It may be that a few days could have been carved off here and there by approaching the duty judge, but that is unlikely to have had any significant impact. 24Thus, at the level of principle, I am satisfied (as I have said) that an order for taking evidence on examination should be made. 25However, principle is one thing and practicability is another. Practice Note SC Gen 9 specifies a number of steps that must be taken before evidence can be taken outside the State. Those steps are detailed, and involve (for the purposes of this case, and among many other things) correspondence between the Chief Justice of this Court and his counterpart in the relevant overseas jurisdiction, and correspondence with the relevant arm of the Commonwealth bureaucracy. No doubt, in these days of electronic communication, such correspondence can be initiated swiftly. But it is beyond the power of the Court to ensure that it is dealt with in reply equally swiftly. 26It would seem to follow that if the steps cannot be undertaken and completed in the time that is available, the order that I would make on a provisional basis may have to be revisited. 27There is also the question of the defendants' willingness to undertake the use of such compulsive powers as may be available in the United Kingdom to ensure Mr Usher's attendance. All I can say about that is that if the defendants do not do so, and if for whatever reason Mr Usher does not appear (assuming the order has been made and everyone is ready to take his evidence), the consequences of that are likely to fall upon the defendants. As I understand the matter, those consequences would be likely to have a significant impact on their defence of the proceedings. 28The plaintiffs have raised very properly the question of timing. The matter has been fixed for hearing for four weeks. It appears to be common ground that it would not require the full twenty days (or nineteen, because one of them is a public holiday) allocated. The proposal, if it can be achieved in time, is to take Mr Usher's evidence in London at some convenient time in the week commencing Monday 9 June 2014. 9 June is a public holiday in this State, but could be utilised for the purpose of travel and recovery. Allowing for the need to return and recover (at least to some extent), the likely candidate days for the examination are 10, 11 or 12 June. It seems to be common ground that the examination will take at least a day; if it takes more then, at least up to the limit I have indicated, that can be accommodated provided the arrangements can be put in place in time. 29That in turn may put some stress on completing the case by the end of the following week, 20 June 2014. If that happens, the Court will be able to make arrangements to continue the hearing either the following week or at whatever time can be found that is convenient to the parties. However, I should make it plain that in the ordinary way, cases fixed in the Commercial List continue until they finish, and I see no reason why this case should be an exception to that general position. 30There is also the question of cost. If the order is made and carried out, then in the ordinary way the costs of taking the evidence on examination would be costs in the proceedings. However, the plaintiffs have put the position that, at least in the first instance, the defendants should put up the amount reasonably required for the plaintiffs' legal representatives (and whoever may be needed reasonably to instruct them) to travel to and be accommodated in London. I do think that this is an unreasonable condition. 31There has been foreshadowed for the plaintiffs the question whether, should they meet with unforeseen (by them) disaster in the litigation, some special costs order should be made in respect of the additional costs of giving evidence in London. All I can say is that if the circumstances arise which would justify the making of that application, it will be dealt with on its merits when it is made. Nothing in the order for provision of, in effect, an advance to cover the out of pocket costs of taking the evidence on examination should be thought to stand in the way of recovering such an order if, in all the circumstances, it is found to be justified. 32The result of all that is, I think, that on the plaintiff's notice of motion filed on 28 April 2014 seeking the relief to which I have referred, I decline (at present) to make orders 1 and 2 as sought but make order 3. 33To accommodate what I have said as to making that order provisionally, I grant leave to any party to discharge, revoke or vary the order on notice, and I note further that the Court may of its own motion do so, of course on notice to the parties. 34A number of things follow. Of prime importance is that the matter needs to be discussed within the Court, in particular between the Chief Judge of this Division and the Chief Justice, and the other is that the defendants as the moving parties, need to institute as quickly as they may do the steps laid out by the Practice Note, including (most importantly) for the payment on account of costs. 35At present, I will leave it to the parties to sort out between themselves the amount that reasonably the defendants should advance to meet the plaintiffs' reasonable costs and the way in which those amounts are to be paid. I do, however, reserve leave to apply on short notice in the event that any problem, either in that regard or otherwise, arises. Any such application should be made to me. I reserve the costs of the notice of motion.