FEDERAL COURT OF AUSTRALIA

Jones v Treasury Wine Estates Limited (No 3) [2017] FCA 961

ORDERS

THE COURT ORDERS THAT:

1.    The defendant’s Interlocutory Application filed on 30 June 2017 be dismissed.

2.    The defendant pay the plaintiff’s costs of and incidental to that Interlocutory Application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FOSTER J:

1    In a Judgment delivered by me on 23 March 2017 (Jones v Treasury Wine Estates Limited (No 2) [2017] FCA 296) (Jones No 2), I said (at [1]–[3]):

1    The plaintiff, Mr Jones, sues the defendant, Treasury Wine Estates Limited (TWE) for statutory compensation pursuant to causes of action based upon provisions of the Corporations Act 2001 (Cth) (Corporations Act), the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and the New South Wales and Victorian analogues of the Australian Consumer Law. Mr Jones alleges that TWE engaged in misleading and deceptive conduct and also failed to comply with its continuous disclosure obligations under s 674(2) of the Corporations Act.

2    Mr Jones brings this proceeding on his own behalf and on behalf of the members of the following group:

[persons or entities] who or which:

(i)    obtained an interest in TWE Securities during the period from 17 August 2012 to 9:30 am on 15 July 2013 (Relevant Period) by the purchase of those Securities on the financial market operated by ASX;

(ii)    [deleted]

(iii)    suffered loss or damage by reason of the Relevant Subsisting Contraventions; and

(iv)    are not any of the following:

A.    a related party (as defined by section 228 of the Corporations Act 2001 (Cth) (Corporations Act)) of TWE;

B.    a related body corporate (as defined by section 50 of the Corporations Act) of TWE;

C.    an associated entity (as defined by section 50AAA of the Corporations Act) of TWE; or

D.    an officer or a close associate (as defined by section 9 of the Corporations Act) of TWE.

(See par 1(b) of Mr Jones’ Further Amended Statement of Claim filed on 23 December 2015 (FASOC)).

3    The proceeding was, therefore, commenced as a representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act). It continues to be such a proceeding.

2    At the present time, the parties are engaged in preparing for the initial trial which is currently fixed to commence on 28 August 2017 with an estimated duration of six weeks. They were also planning to conduct a mediation of the dispute in mid-August 2017. The initial trial is to be an electronic trial. The parties have formulated 110 issues which they agree should be determined by the Court at the initial trial (as to which, see Schedule B to the case management orders made by me on 17 July 2017). The matter is factually and legally complex.

3    In mid-October 2016, I informed the parties that I intended to list the initial trial to commence on 28 August 2017 with an estimate of six (6) weeks.

4    The current dates for the initial trial were provisionally fixed on 10 November 2016. The parties have conducted their subsequent preparations upon the basis that the initial trial would definitely commence on 28 August 2017.

5    By Interlocutory Application filed on 30 June 2017, the defendant (TWE) claimed the following relief:

Pursuant to section 47A(1) of the Federal Court of Australia Act 1976 (Cth) and rule 5.04(3), item 27, of the Federal Court Rules 2011, the evidence of Ms Sandra LeDrew be given by video link.

6    That Application was supported by an affidavit sworn by Alan James Mitchell who is one of the lawyers at Herbert Smith Freehills (HSF), the solicitors for TWE, who have the carriage of this proceeding on behalf of TWE.

7    TWE’s video link application was opposed by the plaintiff. In support of his opposition to that application, the plaintiff read and relied upon the affidavit of Miranda Nagy affirmed on 11 July 2017. Ms Nagy is one of the lawyers at Maurice Blackburn (MB), the solicitors for the plaintiff, who have the carriage of this proceeding on behalf of the plaintiff.

8    On 17 July 2017, I heard and determined TWE’s video link application. On that day, I dismissed that application with costs.

9    These are my reasons for making the orders which I made on 17 July 2017 in respect of TWE’s video link application.

Mr Jones’ Case

10    In Jones No 2 (at [7]–[10]), I set out a brief description of Mr Jones’ case in the following terms:

7    Mr Jones alleges that, in the period from 17 August 2012 to 14 July 2013, TWE failed to advise the Australian Securities Exchange (ASX) of information which was likely to have a material impact on the value of shares in TWE listed on that Exchange and also made statements from time to time that misled or deceived the market about TWE’s expected earnings. According to Mr Jones, the substance of the information that was not disclosed was that, at all times from about mid-2012, TWE’s US distributors were holding stock (wine) which was substantially in excess of their needs, which was rapidly becoming obsolete and which would, in the near future, become worthless. It is Mr Jones’ contention that the alleged concealment by TWE of the true position concerning the retention of stock came to an end on 15 July 2013 when TWE announced expected provisions to its FY13 financial statements and lower than expected earnings growth for FY14. These announcements were made in an ASX Release published by TWE on 15 July 2013. In that Release, TWE said that it had determined to take action in respect of excessive wine inventory held by its US distributors.

8    Immediately after the ASX Release of 15 July 2013 was issued by TWE, the market price of TWE shares fell by almost 14%. That price fell even further in the period from 16 July 2013 to 19 July 2013. Mr Jones says that these falls in the market price of TWE shares were caused by TWE’s conduct in not revealing until 15 July 2013 the true position that obtained throughout the period from 17 August 2012 to 15 July 2013 in relation to the levels of stock held by its US distributors and in not revealing the true position concerning its expected earnings for FY13 and FY14 until the same day.

9    Mr Jones contends that he suffered loss by reason of the alleged contraventions on the part of TWE and that group members also suffered similar losses. The particulars of loss currently provided by Mr Jones are in the following terms:

Particulars

(i)    The loss suffered by the Applicant will be calculated by reference to:

A.    the difference between the price at which he acquired his interest in TWE Securities during the Relevant Period and the true value of that interest; or

B.    the difference between the price at which he acquired an interest in TWE Securities and the market price that would have prevailed had the Relevant Subsisting Contraventions not occurred; or

C.    alternatively, on the days during the Relevant Period where the traded price of TWE Securities fell as a result of the disclosure information which had not previously been disclosed because of the Relevant Subsisting Contraventions, the quantum of that fall; or

D.    alternatively, on the days after the Relevant Period when the traded price of TWE Securities fell as a result of the disclosure of information which had not previously been disclosed because of the Relevant Subsisting Contraventions, the quantum of that fall.

(ii)    Further particulars in relation to the Applicant’s losses will be provided after the service of opinion evidence in chief.

(See par 108 of the FASOC.)

10    In par 108 of the FASOC, the “Relevant Period” is defined as the period from 17 August 2012 to 9.30 am on 15 July 2013 (see par 1(b)(i) of the FASOC and the definition of that expression in Schedule D to the FASOC).

11    The current Statement of Claim (the Third Further Amended Statement of Claim filed on 19 July 2017) is not materially different from the Further Amended Statement of Claim filed on 23 December 2015 which was the current pleading when I delivered Jones No 2. Accordingly, the above thumbnail sketch of Mr Jones’ case remains appropriate.

Ms LeDrew

12    As matters presently stand, TWE has decided to call Ms LeDrew as a witness in its case. Ms LeDrew has already affirmed one affidavit to be read and relied upon at the initial trial (her affidavit of 29 January 2016) and appears to be an important witness in the case. In argument before me, TWE accepted that Ms LeDrew is an important witness and that there is likely to be a challenge to her credit.

13    Ms LeDrew’s affidavit is lengthy (105 pages and 348 paragraphs). In her affidavit, Ms LeDrew refers to many documents.

14    Ms LeDrew joined TWE in about February 2012 as the Managing Director of its Americas Regional Business Unit. She has over 20 years’ professional experience in the wine and spirits industry. She left her employment with TWE at the end of February 2016. As Managing Director of TWE’s Americas Regional Business Unit, Ms LeDrew was responsible for leading the sales, commercial strategy and trade marketing functions for the Americas region of TWE’s business which covered the USA, Canada and Latin America. She appears to have been one of the most senior executives of TWE resident in the USA throughout the period from about February 2012 until well after 2013. For most of 2012 and for all of 2013, Ms LeDrew was involved at a senior executive level in the management of TWE’s distributors in the USA and, in particular, in 2012, was involved in renegotiating the terms of some of the contracts which TWE then had in place with its US distributors.

15    From time to time in 2012 and 2013, Ms LeDrew discussed TWE’s US inventory levels with the Chief Executive of TWE and with other officers and senior executives of TWE including members of TWE’s Board of Directors. In that period, she also participated in direct discussions about inventory levels with executives of TWE’s main distributors, SWS, Charmer and Glazer’s.

16    Ms LeDrew is likely to be in the witness box for several days during the initial trial. Her credit as a witness may well be challenged. At the very least, it is likely that she will be closely questioned about her involvement in the decisions made by TWE in relation to its US stock levels and her involvement in TWE’s dealings with its US distributors throughout the critical period in 2012 and 2013.

The Evidence in respect of the Video Link Application

17    In early November 2016, HSF requested MB to consent to Ms LeDrew’s evidence at the initial trial being given by video link. MB refused its consent. In late June 2017, HSF renewed its request. Consent to having Ms LeDrew’s evidence given by video link was still not forthcoming. On 30 June 2017, TWE filed the present application. By letter of the same date, MB informed HSF that the plaintiff would not consent to Ms LeDrew’s evidence being given by video link and set out its reasons for adopting that attitude.

18    The factual basis for the order which TWE now seeks is set out in par 13 of Mr Mitchell’s affidavit. Paragraph 13 of that affidavit is in the following terms:

I am informed by Ms LeDrew and believe that:

(a)    Ms LeDrew is a citizen of the USA and lives in Danville, California;

(b)    In about February 2017, Ms LeDrew commenced employment with Terlato Wine Group (Terlato) in the role of President of Winery Operations & Chief Development Officer. Terlato’s businesses include vineyard ownership, winery ownership and management, wine import and export, and wine marketing and sales.

(c)    Ms LeDrew is a member of Terlato’s executive leadership team and reports directly to the CEO. She is responsible for managing Terlato’s winery interests, comprising full ownership of 7 wineries in the US and part ownership of 4 wineries outside of the US. Ms LeDrew is also responsible for managing production from Terlato’s vineyards, the direct to consumer business and business development. The business development component of Ms LeDrew’s role involves managing business strategy, acquisitions and new brand relationships. Ms LeDrew is currently involved with several projects in this regard.

(d)    Ms LeDrew’s usual hours of work are from approximately 7am to 7pm. Ms LeDrew is also required to attend a large number of business meetings over dinner.

(e)    Ms LeDrew’s role at Terlato means that it would be very difficult for her to attend the trial in person, including for the following reasons:

i.    Having commenced her employment in February 2017, Ms LeDrew is relatively new to her role at Terlato, and the transition process involved with taking on this role is still underway.

ii.    The period from about August to October of every year is critical to Terlato’s production operations (which, as set out above, Ms LeDrew is responsible for managing). The harvest of Terlato’s vineyards is at its peak in the months of September and October.

iii.    Ms LeDrew’s role involves regular travel between California and Terlato’s head office in Chicago. Ms LeDrew is based in Terlato’s Napa office and spends the first week of every month in Terlato’s Chicago office. Any attendance at trial may therefore disrupt Ms LeDrew’s need to travel as part of her role. Further:

A    Ms LeDrew has European based suppliers of Terlato scheduling visits to Chicago in the week starting 11 September 2017.

B    Ms LeDrew will be in New York at the end of the week starting 11 September 2017 for a board meeting.

C    Ms LeDrew is expected to attend Terlato’s Board meeting on 18 September 2017 in Chicago.

D    At the time of swearing this affidavit, Ms LeDrew expects to receive further requests for meetings that require her to travel.

(f)    Ms LeDrew also has personal difficulties arising from any travel in the period from 27 August 2017 to 5 September 2017. At this time, Ms LeDrew’s son will be visiting her in California. Ms LeDrew has not seen her son since the Christmas period as he attends college in San Diego and has been (and will be) in Wisconsin over the US summer period due to baseball related commitments with his university.

(g)    Ms LeDrew has therefore requested that she be permitted to give evidence at the trial by video link.

19    Mr Mitchell also gave evidence about the video link facilities available at TWE’s Napa office. He explained that those facilities are high-tech and adequate for the purpose of enabling Ms LeDrew to give evidence by video link including at an electronic trial such as the initial trial. Based upon Mr Mitchell’s evidence concerning TWE’s Napa office facilities (which I accept), I am satisfied that there is no impediment of a technical nature to the making of the order sought by TWE. The plaintiff argued that Mr Mitchell’s evidence directed to TWE’s technical capabilities was not sufficiently detailed to justify my reaching an appropriate level of satisfaction in relation to this point. I do not agree.

20    Ms Nagy exhibited a bundle of documents marked as “Exhibit MN-7” to her affidavit. At p 4 of Exhibit MN-7, Ms Nagy produced a copy of a letter written by MB to HSF dated 30 March 2016. In that letter, MB asked HSF to confirm that:

(a)    Ms LeDrew would be called as a witness at the initial trial by TWE; and

(b)    TWE would be in a position to compel Ms LeDrew’s attendance before this Court notwithstanding that she is not resident in Australia and is no longer an employee of TWE.

21    HSF replied to MB’s letter of 30 March 2016 by letter dated 1 April 2016, a copy of which is found at p 5 of Exhibit MN-7. In that letter, HSF said:

At present, TWE intends to call Ms LeDrew as a witness in the proceeding and to that end, Ms LeDrew has indicated that she will continue to co-operate for the purposes of the trial. We consider that the change in Ms LeDrew’s employment status does not affect the application heard by the Full Court on 19 November 2015.

22    At par 13 of her affidavit, Ms Nagy explained the reasons why the plaintiff would not consent to TWE’s video link application. She said:

The plaintiff’s position is that the exercise of the Court’s discretion to permit Ms LeDrew to give evidence by video link is not likely to facilitate the fair disposition of the controversies between the parties because of the following circumstances, some of which I discuss in greater detail below:

(a)    Ms LeDrew is a former senior employee of TWE whose knowledge, actual or constructive, may arguably be attributed to TWE;

(b)    there are a number of topics on which Ms LeDrew gives evidence that are critical to the matters in dispute between the parties;

(c)    the evidence of the plaintiff’s wine industry expert Mr Chadwick conflicts, in material respects, with Ms LeDrew’s evidence;

(d)    at trial, the plaintiff’s cross examination of Ms LeDrew will require her to be shown and respond to numerous documents;

(e)    for reasons which include those referred to in (a)–(c) above, I believe that the Court will be required to make findings as to the credibility of Ms LeDrew that will be based, in significant part, on assessment of her demeanour under cross examination; and

(f)    the length of Ms LeDrew’s likely cross-examination and the time zone differences between Australia and the US (amongst other considerations) make the proposed arrangements impracticable.

23    At par 14 of her affidavit, Ms Nagy referred to a number of matters of fact set out in Ms LeDrew’s affidavit about which there was not likely to be any controversy. At par 16 of her affidavit, Ms Nagy said:

Ms LeDrew’s evidence on a number of topics is likely to be of critical relevance in the Court’s determination of key areas of controversy between the parties, including:

(a)    how distributors calculate inventory: Ms LeDrew deposes that distributors generally only include inventory when they receive it (i.e. they do not include stock “in transit” (LeDrew Affidaivt, para 35)). Whether “in transit” inventory was counted in US distributor inventory calculations (in the context of determining compliance with their contractual minimum inventory obligations) is the subject of substantial dispute: see Affidavit of Raymond Steven Chadwick, affirmed 8 June 2017 and expert report that appears as Annexure RSC2-1 to that affidavit, (2nd Chadwick Report), at paragraphs 4–7;

(b)    “target” inventory levels: Ms LeDrew deposes that the minimum inventory levels specified in contracts between suppliers and distributors do not represent a “target”, or optimum, level of inventory (LeDrew Affidavit, paras 36–37). Ms LeDrew contends that her understanding was that TWE’s distributors would find an inventory range of between 90 and 100 days on hand acceptable (LeDrew Affidavit, at para 149). However, Mr Chadwick considers the minimum inventory levels (of 70 or 58 days) to be the optimum levels for both distributors and suppliers: see Affidavit of Raymond Steven Chadwick, affirmed 2 February 2017 and expert report that appears as Annexure RSC1 to that affidavit, (1st Chadwick Report) at paragraphs 67–71. This dispute is important in the context of, amongst other allegations, the plaintiff’s material non-disclosure allegations pleaded at paragraphs 39(aa) and 40(aa) of the second further amended statement of claim (see also disputed paragraphs 31C(d) and 31D which provides a foundation for those allegations);

(c)    whether TWE’s strategies and targets for volume and earnings growth in the Americas in FY2013 reflected in TWE’s Five Year Plan were reasonable. Ms LeDrew presented the Five Year Plan and FY2013 Operating Plan for the Americas to TWE’s Board in May 2012 and deposes that she was confident that the initiatives within it could turn around TWE’s business (LeDrew Affidavit, paras 93–99). In contrast, the plaintiff’s expert Mr Chadwick is highly critical of those strategies and considered them to be “extremely aggressive” (1st Chadwick Report, paras 72–149, particularly at paragraph 145);

(d)    whether TWE should have anticipated that during FY2013 it was likely that its distributors would seek to reduce the levels of inventory of TWE wines. Ms LeDrew deposes to numerous discussions with distributors after she joined TWE in February 2012, including an email discussion in April 2012 (incorrectly stated as 2013 in LeDrew Affidavit, para 53) in which SWS stated that it “agrees that current inventory levels are much too high” proposed to “work with TWE to reach contractual inventory levels on a managed/phased approach” and to “reach target days on hand” – yet Ms LeDrew deposes that she did not understand SWS to mean that it expected to reduce to contractual minimum levels (LeDrew Affidavit, para 53);

(e)    the causes of a build-up in US distributor inventory of TWE products during 1H13 (when TWE had informed the market it intended to deload by 300,000 to 500,000 cases during FY2013) (see LeDrew Affidavit, paras 116–117), which causes the plaintiff contests; and

(f)    the point at which she, and (in the plaintiff’s submission, therefore TWE), knew of a material risk that excess distributor inventory would be likely to mean that TWE would have to provision for destruction of wine, discounts and rebates, or write down the value of its bulk and finished wine inventories (noting the lengthy history of the Relevant Period Ms LeDrew recounts throughout most of her affidavit).

24    Ms Nagy then drew the Court’s attention to the time differences between the various cities in the USA where Ms LeDrew is likely to be during the period of the initial trial in order to make the additional point that there was a significant disconformity between the US times and the times in Sydney.

25    At par 22 of her affidavit, Ms Nagy said:

I anticipate that if the Court grants the defendant’s application, it will be necessary for a legal representative of the plaintiff to be present at TWE’s proposed site for her testimony during all of the cross examination of Ms LeDrew. This will be to ensure that correct documents are provided to her during the cross examination and are managed appropriately. In addition, in circumstances where Ms LeDrew is giving evidence at a facility operated by the defendant in Napa, and no member of the Court’s staff can be present, some oversight by or on behalf of the plaintiff will assist in maintaining confidence in the integrity of her evidence and avoiding any concern or doubt that it has been contaminated (even if inadvertently) in some way.

26    At par 18 of her affidavit, Ms Nagy offered a practical solution to the problem created by Ms LeDrew’s desire to see her son. She suggested that it would be appropriate that Ms LeDrew be informed that she would not be required to be available to give evidence in Sydney prior to the week commencing 11 September 2017.

Consideration

27    Each of the parties filed a Written Submission in support of his or its respective stance in relation to TWE’s video link application. The parties also addressed oral submissions to me on 17 July 2017.

The Correct Approach

28    Section 47A(1) of the Federal Court of Australia Act 1976 (Cth) (the Act) provides that:

47A    Testimony by video link, audio link or other appropriate means

(1)    The 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.

Note:    See also section 47C.

29    Section 47C(1) of the Act precludes the exercise of the power conferred by s 47A(1) to order that evidence be given by video link unless certain technical requirements are met. In the present case, the evidence of Mr Mitchell satisfied me in respect of the suitability of TWE’s Napa facilities. In addition, had I been minded to order that Ms LeDrew’s evidence be taken by video link, I would have required that there be a test run involving TWE’s Napa facilities in order to ensure that the requirements of s 47C(1) of the Act were satisfied.

30    In Kirby v Centro Properties Ltd (2012) 288 ALR 601 at 603–605 [3]–[11], Gordon J described the two broad approaches which her Honour considered had been adopted by the Court in relation to applications that evidence be given by video link. Her Honour’s remarks may be summarised as follows:

(a)    The first approach is that, given the advanced state of video link technology and also because of the convenience of the procedure and the savings in time and cost, 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 (at 603 [4]);

(b)    The other approach has been described as more cautious and requires good reason to be shown before leave to give evidence by video link is granted (at 603 [5]);

(c)    Factors which the Court have taken into account in the decided cases include:

(i)    The employment commitments of an overseas witness;

(ii)    Whether the credibility of the witness is in issue;

(iii)    Whether the witness’ evidence will be “centrally important” to the case; and

(iv)    Whether the use of video link technology may frustrate or delay the management of documents in cross-examination.

31    At 605 [11], her Honour said:

There is little to be gained by adding another or different gloss on the state of the authorities. In the end, each case will turn on its own facts and circumstances and the exercise of 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. All modern courts seek to limit the costs of litigation. One cost is in requiring a witness, especially a witness who is not a party, to travel to Australia to give viva voce evidence. Whether that cost can be minimised by giving that evidence by video link, as has been said, will need to be assessed not just on a case by case basis but also on a witness by witness basis.

32    In Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 (Campaign Master), Buchanan J said the following (at 170–171 [77]–[78]):

However, with respect to those who have taken a different view, I think there is a significant difference in emphasis in the two lines of authority. One, essentially pragmatic, matter which arises from the differences of view to which I have drawn attention is where the practical onus of persuasion lies. Despite the undoubted efficiencies available in an appropriate case, the trend of authority seems to me to emphasise the need for a persuasive case to be made out to use a video link to take evidence, particularly to impose it on an unwilling cross-examining party, rather than the reverse.

I share the concerns expressed by Spender J in World Netscape and by Stone J in Dorajay about the limitation on the effectiveness of video link arrangements as a means of taking oral evidence. 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. Although the days are gone when witnesses are expected to feel any sense of intimidation as an aid to telling the truth, there 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 cross-examiner 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. Notwithstanding the increased availability and use of video link technology, in my view, a case must be made out for the use of video link evidence if it is opposed by an affected party. I do not share the view expressed by Katz J. My own view and, I think, the weight of authority, is to the contrary.

33    In Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 4) [2012] FCA 1416 at [17], I expressed similar views to those which Buchanan J expressed in Campaign Master.

34    In Unilever Australia Ltd v Revlon Australia Pty Ltd (No 4) [2014] FCA 1074, Gleeson J also endorsed the views of Buchanan J in Campaign Master. At [14], her Honour said:

It is fair to say that recent decisions have tended to take a conservative approach to the use of video link for the testimony of witnesses. In Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 (“Campaign Master”) at [77], Buchanan J said that “the trend of authority seems to me to emphasise the need for a persuasive case to be made out to use a video link to take evidence, particularly to impose it on an unwilling cross-examining party”. [Her Honour then set out [78] of Campaign Master]

35    In my view, each case will turn on its own facts and circumstances. The discretion must be exercised so as to achieve the outcome which will best serve the administration of justice consistently with maintaining justice between the litigants.

36    At par 11 of his Written Submission, the plaintiff submitted that:

Under both lines of authority referred to above, the facts and circumstances which commonly inform the Court’s exercise of discretion in relation to s 47A(1) include: (i) the reason why a video link is sought; (ii) the attitude of the cross-examining parties; (iii) the importance of the witnesses’ evidence and the likely nature of cross-examination and demeanour issues that might arise; (iv) any practical difficulties in the course of examination and cross-examination and how those difficulties may be overcome; and (v) the likely quality of the proposed video link. [Drake at [4]; Federal Court of Australia Guide titled “Videoconferencing” at [1.8]].

37    I think that the written submission made by the plaintiff at par 11 of his Written Submission is an accurate and helpful summary of the matters which should guide the Court in the exercise of its discretion when considering whether or not to order that particular evidence be taken by video link.

The Present Case

38    The factors raised by Mr Mitchell in his affidavit as supporting TWE’s application that the evidence of Ms LeDrew be given by video link may be grouped into two broad categories.

39    The first group of considerations comprises work-related matters. The second group of factors concerns a proposed visit to Ms LeDrew’s home in California by Ms LeDrew’s son in the period between 27 August 2017 and 5 September 2017.

40    As to the first group of factors, it must be remembered that Ms LeDrew lives and works in California and cannot be compelled by this Court to travel to Australia to give evidence at the initial trial. On the other hand, there is no suggestion that Ms LeDrew is unwilling to come to Australia to give evidence on behalf of TWE. TWE has informed the plaintiff’s legal representatives that it expects that Ms LeDrew will attend at the hearing when required. Ms LeDrew has recently taken up a senior executive position with Terlato Wine Group (Terlato), a significant and varied wine business which operates principally in the USA although it has interests in four wineries outside the USA. Ms LeDrew will be particularly busy in her role with Terlato in September and October 2017. She will need to supervise the harvest at Terlato’s vineyards in California which will be at its peak in the months of September and October. Ms LeDrew will also be expected to attend various meetings in September 2017, including meetings of the Board of Directors of Terlato. Those meetings are expected to take place in Chicago and New York. The evidence in Mr Mitchell’s affidavit discloses that the meetings which have already been arranged will take place in the weeks beginning 11 September 2017 and 18 September 2017.

41    As to the visit of Ms LeDrew’s son, Mr Mitchell said that Ms LeDrew had not seen her son since Christmas 2016 as he attends college elsewhere in California and has been in Wisconsin over the US summer period.

42    At par 18 of her affidavit, Ms Nagy said that (in effect) the plaintiff would not require Ms LeDrew to be present at the hearing before 11 September 2017. At the hearing before me, it was accepted by both parties that the plaintiff’s case was likely to occupy the first two weeks of the initial trial with the consequence that the first TWE witness was not likely to enter the witness box prior to 11 September 2017. In light of that circumstance, I indicated to the parties that I would not expect Ms LeDrew to be required to be available at the hearing prior to 11 September 2017. That being so, the demands of the upcoming hearing were no longer going to interfere with Ms LeDrew’s son’s visit to California in the period between 27 August 2017 and 5 September 2017.

43    At pars 13 and 16 of her affidavit, Ms Nagy explained in some detail the significance of Ms Le Drew’s evidence in the case and the reasons why the legal representatives of the plaintiff consider that her credit is in issue. I have set out those paragraphs in full at [22]–[23] above. I accept Ms Nagy’s evidence in relation to these matters.

44    The parties expect that Ms LeDrew’s evidence will require her to be in the witness box for a period of 2–4 hearing days and that she will be required to consider numerous documents during her cross-examination.

45    In my view, there is no doubt that Ms LeDrew’s evidence will proceed more swiftly and efficiently if she is present in the courtroom in Australia when giving evidence. In addition, I accept Ms Nagy’s observation that, were the Court to accede to TWE’s video link application, the plaintiff would be obliged to send a lawyer to California to observe Ms LeDrew giving evidence at TWE’s facilities at Napa. That would involve additional and unnecessary cost.

46    The plaintiff also points to the delay on the part of TWE in making its video link application. There is some force in this submission although I do not consider it to be decisive in the present case. TWE promptly raised with the plaintiff its desire to have Ms LeDrew’s evidence given by video link at the time when the initial trial dates were first proposed. However, it did not raise the matter with the Court until late June 2017, some seven or eight months later. Between November 2016, when TWE first made its initial request of the plaintiff, and June 2017, Ms LeDrew’s circumstances changed in that, in February 2017, she commenced her current employment with Terlato. Applications for the giving of evidence by video link should be made promptly and should not be left in abeyance pending discussions between the parties.

47    In my opinion, the following factors militate against upholding TWE’s application, namely:

(a)    The fact that Ms LeDrew’s evidence is important to the case. Her evidence goes to a number of issues which are at the heart of the case;

(b)    The fact that Ms LeDrew, although not compellable to attend at the hearing in Australia, is willing to do so;

(c)    The circumstance that her evidence will occupy several days of hearing time and involve her considering many documents;

(d)    The fact that the plaintiff opposes TWE’s video link application upon the basis (inter alia) that the effectiveness of the cross-examination of Ms LeDrew may be impaired by the circumstance that she is not present in the courtroom in Australia. Included within this consideration is the difficulty caused by the differences between the time in various cities in the USA where Ms LeDrew is likely to be in September and October 2017 and the time in Sydney;

(e)    The fact that one of the plaintiff’s legal representatives will be compelled to travel to California to ensure that the process is appropriately managed at the Napa end of things; and

(f)    The fact that TWE delayed making its application.

48    This is a case which, in my opinion, the observations made by Buchanan J at 171 [78] in Campaign Master are apposite.

49    The work-related matters addressed by Mr Mitchell at par 13 of his affidavit are not sufficiently weighty to lead to the requisite discretion being decided in favour of TWE. Indeed, Mr Mitchell does not go so far in his affidavit as to say that Ms LeDrew’s attendance in Australia will necessarily disrupt her capacity to attend meetings nor does he provide any detail at all as to her role in the harvest of the wine at Terlato’s California’s vineyards. Mr Mitchell was no doubt circumspect in expressing in words the impact of Ms LeDrew’s attendance in Australia on her meeting schedule because he was no doubt alive to the possibility that she could participate in all of the foreshadowed meetings by telephone or video link.

50    Having weighed up the factors which arguably supported TWE’s video link application and those which militated against allowing Ms LeDrew to give her evidence by video link, I came down firmly in favour of rejecting TWE’s application. In my view, the factors which I have listed at [47] above far outweighed those advanced by Mr Mitchell in his affidavit.

51    For the above reasons, I dismissed TWE’s video link application with costs.

Associate:

Dated:    18 August 2017