Case: Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (unreported, NSWSC, 11 March 1997)
Outcome: considered
ACCC then made the following submissions as to the general principles against which the motion should be determined: (1) The power to make the direction is conferred by s 47A(1) of the Act. That subsection provides: The Court or a Judge may, for the purpose of any proceeding, direct or allow testimony to be given by videolink, audiolink or other appropriate means. (2) Section 47C provides: (1) The Court or a Judge must not exercise the power conferred by subsection 47A(1) or section 47B in relation to a video link unless the Court or the Judge is satisfied that the following conditions are met in relation to the video link: ... (b) the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom or other place where the Court or the Judge is sitting; ... (6) For the purposes of the application of this section to a particular proceeding, eligible persons are such persons as the Court or a Judge considers should be treated as eligible persons for the purposes of that proceeding. (Emphasis in original) (3) The discretion in s 47A is to be exercised judicially. (4) It is to be exercised recognising 'that there are deficiencies when evidence is taken by videolink when compared with evidence given viva voce' per Spender J in Australian Competition and Consumer Commission v World Netsafe (No. 1) [2002] FCA 526 ; (2002) 119 FCR 303 at 305. His Honour continued by quoting from Giles CJ of the Commercial Division of the Supreme Court of New South Wales, in Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (unreported, NSWSC, 11 March 1997) at [4]: Cross-examination may be more difficult when video evidence is taken because documents have to be transmitted or produced in an unfamiliar manner, because of the delay in voice transmission, or for other reasons and the effectiveness of cross-examination as a weapon in the fight for truth should not be unduly hindered. And in many cases the court is assisted in fact by observance of what is misleadingly called the demeanour of the witnesses upon which the taking of video evidence may impact. Those observations of Spender J were cited with approval by a Full Court of this Court in Odhiambo v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 194 ; (2002) 122 FCR 29 at [97] . I agree with these observations. They illustrate the point that the choice in every case cannot be determined solely by reference to general principles because it is the application of those principles to the facts and circumstances of the particular case which must determine the choice; in the circumstances of a particular case, a matter may point one way and in another case it may point another way. At the end of the day, the exercise of the discretion as to what is appropriate in a particular case will involve a balancing exercise as to what will best serve the administration of justice consistently with maintaining justice between the parties: see Giles CJ in Sunstate Airlines at [4]. The Present Case In the present case, I have come to the conclusion that I should decline to make the direction for the following primary reasons: (1) There is no evidence before me that the Cooling Off Witnesses are not prepared to come to Sydney for the hearing or, through illness or otherwise, are unable to come. I accept that they are not compellable, but 9 of the 12 are still employees of StoresOnline and as StoresOnline will be bearing the cost of all travel and accommodation for all Cooling Off Witnesses, there is no financial disincentive for them in coming. References to their losing commission income while travelling and during their short stay here carries little weight, if any, particularly as it could no doubt be adjusted in their favour, by StoresOnline treating it as a 'one week off', in the 'two weeks on'/'one week off' arrangement for Sales Staff deposed to by Mr Klotz. (2) In my view, the overall savings in cost, by taking the evidence of the Cooling Off Witnesses by video-link rather than having them come here to give their evidence viva voce , will be at best marginal and at worst more expensive. The savings deposed to by Mr Klotz are, in the scheme of things, not significant and do not take into account all the costs associated with and all the costs which will arise as a result of, recourse to a video-link. It will, as submitted by the ACCC, require the ACCC to have an agent or agents at the remote location or locations to assist in the identification of documents during the course of cross-examination; it will undoubtedly lengthen the time it takes to complete the cross-examination of the Cooling Off Witnesses each day will at best be a half day due to time zone differences with attendant increase in the costs incurred for the additional time of counsel and instructing solicitors; and it would be common ground that these latter costs would quickly absorb and overtake any savings as between travel and accommodation costs on the one hand and the direct cost of utilising videoconference facilities on the other. (3) Clearly there are issues of credit involved as between the evidence in chief embodied in the affidavits of the Cooling Off Witnesses and the evidence in chief embodied in the affidavits of the ACCC's witnesses who purchased StoresOnline packages at the relevant Workshops in Australia going to the factual issue of whether or not the purchasers of such packages were told, at any time up to and including the point of sale, about the 'cooling off period'. In my view, it is in the interests of maintenance of justice between the parties that that evidence, from both sides, be given in person. (4) It is also clear that the cross-examination of the Cooling Off Witnesses will go beyond their evidence in relation to the 'cooling off period' issue. They will also be cross-examined in relation to other allegations of breaches contained in the statement of claim, as well as on the systems and procedures in place with a view to ensuring compliance with the Undertaking. So understood, their evidence is, contrary to the submission of StoresOnline, centrally important to the outcome of the case. (5) The anticipated size of the Court Book suggests that the Cooling Off Witnesses will be taken to a large number of documents in the course of their cross-examination. I accept that the management of such a task can be effectively handled whilst utilising videoconference facilities albeit, as mentioned above, at an additional significant cost. At one level then, this consideration is central. But where, as here, issues of credit are involved, it impels a conclusion in favour of the evidence being given in person. There are other matters which I have weighed into the balancing exercise in reaching the conclusion I have, in addition to the primary matters referred to in [15] above. On their own, they are not critical. However, as part of the balancing exercise they are, in my view, relevant; for example, the Cooling Off Witnesses are all people who regularly travel, both domestically and internationally, for or on behalf of StoresOnline. While having them travel from the United States to Australia and return will involve them in some 15 hours of travel each way within a relatively short timeframe, this is something to which they are accustomed in the course of their duties. It could not be seen as imposing on them an unusual personal or physical burden. The motion must be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 6 July 2009 Counsel for the Applicant: Mr S White SC with Mr T Brennan Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Respondents: Mr D Fagan SC with Mr E Hyde Solicitor for the Respondents: Deacons Date of Hearing: 24 June 2009 Date of Judgment: 6 July 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/717.html