Witness Trial Evidence by AVL Refused for Lack of Court Room “Chemistry” on Credit Issue
In Deeming v Pesutto [2024] FCA 951 (22 August 2024), the Federal Court of Australia addressed an application by a party to adduce evidence from one of its witnesses by videolink in lieu of personal attendance. O’Callaghan J addressed the relevant principles and applied them, adversely to the applicant, on the facts of the cause, being one for damages for defamation. Relevantly, his Honour wrote:
[1] This is an application by Mr Pesutto, the respondent in this proceeding, under s 47A(4)(a) of the Federal Court of Australia Act 1976 (Cth) (the Act) for an order pursuant to s 47A(1) that a witness he intends to call at the upcoming hearing of this proceeding be permitted to give testimony by audio-visual link (or AVL), in circumstances where the applicant, Mrs Deeming, has said through her lawyers that the witness, Dr Matt Bach, is required to attend for cross-examination.
[2] The application was opposed.
[3] Mrs Deeming is a member of the Victorian Parliament in the Legislative Council, and a former member of the Victorian Parliamentary Liberal Party (the party). In this proceeding, she alleges that Mr Pesutto, the leader of the party, published a media release and said things in media interviews that were defamatory of her. The media release was published following a meeting held on 19 March 2023 between the leadership team of the party and Mrs Deeming regarding the events at a rally that occurred on 18 March 2023. Dr Bach, who at that time was the Deputy Leader of the Liberal Party in the Legislative Council, attended that meeting.
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[8] Section 47A(1) of the Act provides that “[t]he Court or a Judge may, for the purposes of any proceeding, direct or allow testimony to be given by video link, audio link or other appropriate means”.
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[13] Each case turns on its facts, and various factors will usually need to be weighed in the balance, with none being exhaustive or prescriptive. See eg Kirby v Centro Properties Ltd [2012] FCA 60; (2012) 288 ALR 601 at 604 –605 (Gordon J).
[14] In that case, Gordon J noted (at 604–605 [10]–[11]) that courts have taken a number of matters into account in exercising the discretion under s 47A(1) of the Act or its equivalents in other jurisdictions, including relevantly: the employment commitments of an overseas witness; whether the credibility of the witness is in issue; the importance of the witness’ evidence to the case; whether the use of video link may frustrate or delay the management of documents in cross examination; and the costs involved in requiring a witness, especially a witness who is not a party, to travel to Australia to give viva voce evidence.
[15] It is also well established that it is necessary for a party who is asking the court to exercise the discretion to make an order under s 47A(4)(a) to make out their case for making it, particularly if it is opposed by the other party, where the evidence is contested, the witness is to be cross-examined and questions of credit, credibility and reliability are involved. See, by way of example only, Rush v Nationwide News Pty Ltd (No 4) [2018] FCA 1558 at [50] (Wigney J).
[16] As to the requirements specified in s 47C, Mr Bartlett deposed that Dr Bach could give evidence via AVL from the London office of MinterEllison, which he said would guarantee a stable internet connection; an IP address; compatibility with Microsoft Teams; private and secure conference rooms; audio-visual equipment suitable for cross-examination including television, webcam, backup speakerphone and uninterruptible power supply; and a religious text upon which an oath may be sworn. He also deposed that a MinterEllison solicitor in London could attend and ensure the logistical and technical requirements are satisfied, including access to an information technology contact within the firm that can provide further assistance if required. That evidence was not disputed.
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[31] In my view, this is not an appropriate case to allow Dr Bach to give evidence by AVL.
[32] It is readily apparent from the aide-memoire document that there is, on the face of it, a real and fundamental dispute involving issues of credit, credibility and reliability between Mrs Deeming, on the one hand, and the five members of the leadership team, on the other hand, in particular about what happened at the 19 March meeting. It is neither productive nor appropriate in an application such as this to explore the nature and extent of that dispute, beyond that identified by Mr Pesutto’s counsel in the aide-memoire.
[33] As Buchanan J said in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 at 171 [78]:
I am particularly troubled by the prospect (or possibility) that the cross-examination of an important witness might be rendered less effective by the limitations of video link technology or the absence of the witness from the courtroom … [T]here is no doubt in my mind that the requirement to give evidence on oath or affirmation in the (generally) solemn atmosphere of a courtroom in the presence of a judge, and to answer questions in cross-examination in the presence also of cross-examining counsel, has at least three potential benefits. It enhances the prospect that the witness will remain conscious of the nature and solemnity of the occasion and of his or her obligations. It affords the cross-examiner some reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross- examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party. It provides the Court with a more satisfactory environment in which to assess the nature, quality and reliability of responses by a witness, both to questions and to the overall situation presented by the necessity to give evidence in court. To my mind there remains, even in the modern context, a certain “chemistry” in oral interchanges in a courtroom, whether between a judge and counsel (or other representative) or between cross-examiner and witness. I would not wish too lightly to deprive a crossexaminer of that traditional forensic element in the exchange although, as the cases universally make clear, the Court must now, if asked to do so, balance the interests of a cross-examining party against claimed inconvenience both in individual cases and with respect to individual witnesses.
[34] Although those observations were made 15 years ago, they remain as relevant now as they were then, and they have been adopted with approval on many occasions since. See Kirby v Centro Properties Ltd [2012] FCA 60; (2012) 288 ALR 601 at 603 –604 ] (Gordon J); Blackrock Asset Management Australia Services Ltd v Waked (No 2) [2011] FCA 479 at [45] –[46] (Perram J); Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 231 FCR 531 at 536 –537 [16]–[17] (Besanko J); Southernwood v Brambles Ltd (No 2) [2022] FCA 973 at [29] ff (Murphy J); Joy v UGL Operations and Maintenance Pty Ltd (No 3) [2024] FCA 279 at [64] –[66] (Feutrill J). And they apply with greater force when the credit, credibility and reliability of an important witness is sought to be challenged.
[35] In those circumstances, and given that oral evidence at a trial is generally to be given directly to, and in the presence of the court, it is necessary for Mr Pesutto, in asking the court to exercise the discretion to make an order under s 47A(4)(a), to point to convincing reasons why the cross-examination of Dr Bach should be permitted to occur other than in person.
[36] I accept that Dr Bach’s absence for a further period of five days (further to the China trip, that is) will likely cause some disruption to his pupils at the school and will inconvenience his wife and small children. But in the scheme of things, I do not give those matters significant weight — including because Dr Bach must have known in May when he swore his first affidavit that there was a likelihood that he would have to attend the trial in September in person, that certain inconvenience would be caused to his students and family as a result, and that he would need to make arrangements accordingly.
[37] The additional costs involved in having Dr Bach attend in person, though not trifling, are, as Dr Collins said, “not sheep stations” in the context of a three-week trial, where both sides are represented by senior and junior counsel and well-resourced solicitors who specialise in defamation law.
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(emphasis added)
The full decision may be found here.
