Consideration
9 I am not persuaded that I should accede to the application insofar as it concerns Mr Herzfeld. Whilst I have sympathy for his fear of flying and his desire to avoid long plane travel, I anticipate that Mr Herzfeld's evidence will be central to the case to be brought against the respondents at the damages hearing. I anticipate that his cross-examination will be quite lengthy. I accept that there may be a need to put a number of documents to him in cross-examination. Whilst I think it unlikely that his evidence will be subject to any significant attack on credit, and whilst I accept his evidence will relate to "technical matters", I hold grave concerns that cross-examination using videolink will provide an effective medium for the reception of that evidence. In short, I accept that the respondents will be materially disadvantaged by requiring cross-examination to take place by videolink.
10 Further, in coming to this conclusion, I have had regard to the fact that it must have been well-appreciated by the applicant that it was almost inevitable that Mr Herzfeld would be required for cross-examination on a matter so contentious as the royalty rate and terms on which a licence to manufacture and distribute Winnebago branded vehicles in Australia would be granted. As the respondents persuasively point out, Mr Herzfeld's reasons for not wishing to travel to Australia were clearly in existence prior to the time he was engaged as an expert witness. The applicant was not entitled to assume that, having engaged Mr Herzfeld as a witness, his evidence could be given by videolink.
11 I also note that, despite his fears, Mr Herzfeld does travel by plane, albeit it seems infrequently. His desire is to avoid such travel where possible. Unfortunately, I am not persuaded that this is an occasion where that can be avoided, if he is to give evidence in this proceeding. As I have said, I accept that the respondents would be significantly disadvantaged in the conduct of their case if Mr Herzfeld were not personally present for cross-examination.
12 Mr Potts is in a somewhat different position. I should say at the outset, however, that I do not think that his wish to attend investor relations meetings in the United States of America at the time of the damages hearing is, of itself, a sufficient reason for permitting him to give evidence by videolink. The more important consideration, in my view, is the nature of the evidence he is to give. Mr Potts' evidence is undoubtedly important, but it is also somewhat limited. An important topic of his cross-examination will be the reason for the applicant agreeing to the royalty rate and other terms with WRV, bearing in mind the royalty rate which the applicant contends should be used to calculate its claim for damages. The respondents have foreshadowed that it is likely that Mr Potts will be cross-examined on the reason why the applicant did not volunteer in its own evidence the licensing arrangements it has entered into with WRV, and that there may be a challenge to Mr Potts' credit. They have also foreshadowed the need to place documents before him for the purpose of his cross-examination.
13 In considering the present question, a balancing exercise is required in order to determine what will best serve the administration of justice consistently with maintaining justice between the parties: Kirby v Centro Properties Ltd [2012] FCA 60 at [11]; Unilever Australia Limited v Revlon Australia Pty Ltd (No 4) [2014] FCA 1074 at [16].
14 After some reflection, I have come to the view that Mr Potts should be permitted to give his evidence by videolink, despite the respondents' opposition to that course.
15 The central consideration in my decision is the limited scope of the evidence which Mr Potts will give. Notwithstanding the factors raised by the respondents, I do not think, on topics relevant to the issues to be ventilated at the damages hearing, they will be materially disadvantaged by having to cross-examine Mr Potts by videolink. The fact that there may be a challenge on credit is a consideration I take into account. But it is not a decisive consideration. Insofar as documents may be required to be put to Mr Potts, satisfactory arrangements can be made to achieve that end. If, for that purpose, it is necessary for the respondents to engage lawyers in the United States to facilitate that task then I will order that the reasonable costs of doing so be borne by the applicant, who seeks the indulgence that Mr Potts' evidence be given in this way.