FEDERAL COURT OF AUSTRALIA

CATCHWORDS

EVIDENCE TAKEN ABROAD – competing applications under Order 24, rule 1(a) and Order 24, rule 1A – which course preferable in circumstances.

Federal Court Rules – O 24, rr 1(a) and 1A

Brandon & Ors v The Commonwealth  (unreported, Whitlam J, Federal Court of Australia,  12 June 1998)

Laporte Group Australia Ltd vVatselias (unreported, Young J, Supreme Court of New South Wales, Equity Division, 25 November 1991)

ROBERT JOHN MEWETT v COMMONWEALTH OF AUSTRALIA

NG 376 of 1994

KATZ J

28 OCTOBER 1998

SYDNEY

                                                            MINUTES OF ORDER

THE COURT DIRECTS:

That the Commonwealth bring in draft short minutes to give effect to these reasons.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

The present proceeding was begun in June of 1994 in the High Court of Australia and immediately remitted by consent to this Court.  It involves a claim for damages against the Commonwealth by a former seaman in the Royal Australian Navy.  In brief, the applicant alleges that, in the State of Victoria in 1979, the Commonwealth breached a duty which it owed to him in his capacity as a seaman aboard HMAS Kimbla (wrongly called in the statement of claim, “Kembla”). That duty is said to have arisen both in contract and under the general law. The applicant further alleges that in consequence of that breach of duty by the Commonwealth he suffered post-traumatic stress disorder.

Since about fifteen years had elapsed between the alleged breach of duty and the commencement of the proceeding, it was not surprising that the Commonwealth’s defence to the applicant’s claim included from the outset a plea that that claim was statute barred. It was originally said that the statute which had had that effect was the Limitation Act 1969 (NSW), although, as I will mention again below, it is now said instead that the statute which had that effect is the Limitation of Actions Act 1958 (Vic).  Additionally, the Commonwealth relied in its defence on s 44 of the Safety Rehabilitation and Compensation Act 1988 (Cth).

(It is as well to mention immediately that the Commonwealth’s former plea of reliance on the New South Wales limitation statute was apparently not meant to be taken literally; the same applies to its current plea of reliance on the Victorian limitation statute. What was apparently meant in connection with the New South Wales limitation statute was not that it applied of its own force in the proceeding, but that it was made applicable in the proceeding as surrogate Commonwealth law; the same is apparently meant in connection with the Victorian limitation statute. It will, however, be easier to refer hereafter in these reasons to the two statutes as if they were capable of direct application in the proceeding, just as was done in the Commonwealth’s defence and amended defence.)

The Commonwealth’s reliance by way of defence on the New South Wales limitation statute provoked a protective application by the applicant, also in reliance on that statute, for an extension of time within which to sue. The applicant put on evidence in support of that protective application and, stated shortly, his position regarding the major part of the delay in commencing the proceeding was that he had not become aware, until August of 1990, either that he suffered from post-traumatic stress disorder or that it had been caused by the Commonwealth’s breach of duty.

Before the applicant’s protective application for an extension of time within which to sue was heard, the Commonwealth sought, in reliance on s 44 of the Safety Rehabilitation and Compensation Act, to have the applicant’s statement of claim struck out.

It was the applicant’s response to such attempt by the Commonwealth that s 44 of the Safety Rehabilitation and Compensation Act could not validly apply to his claim, a response which was ultimately accepted by the High Court of Australia.

The history of the resolution of the s 44 issue is as follows: the issue was first debated before Foster J of this Court in August of 1994 and he gave his decision on it, adverse to the Commonwealth, in November of 1994 (see (1994) 126 ALR 391). Next, the issue was debated before a Full Court of this Court (Spender, Cooper and Lindgren JJ) in February of 1995 and it gave its decision on it, also adverse to the Commonwealth, in August of 1995 (see (1995) 59 FCR 391). Finally, the issue was debated before the High Court in September of 1996 and again in February of 1997 and it gave its decision on it in July of 1997 (see (1997) 71 ALJR 1102).

The s 44 issue having been finally determined, the matter then returned to this Court, with the Commonwealth still relying on the New South Wales limitation statute and the applicant still protectively seeking, also in reliance on that statute, a extension of time within which to sue. However, it was very shortly after the matter’s return to this Court that the Commonwealth was given leave, of which it availed itself (as I foreshadowed above), to amend its defence by ending its reliance on the New South Wales limitation statute and beginning instead a reliance on s  5(1A) of the Victorian limitation statute.

When met with that new limitation defence, the applicant made plain his position on it: first, he denied that he was statute barred by s  5(1A); secondly, he said that if he was so barred, he wanted an extension of time under s  23A of the Victorian limitation statute within which to sue; and, thirdly, he said that he wanted the limitation issues raised by ss 5(1A) and 23A to be dealt with in advance of any other issues then remaining to be dealt with in the proceeding.

Without formally seeking an order under s  23A, the applicant then sought from the Court in May of this year an order summarised as follows in unreported reasons for judgment given by Whitlam J on 12 June 1998:

                        “… that the judge to hear his extension of time application be appointed as examiner to take his testimony in England on terms that the Commonwealth bear the costs of the examination, the expenses of the examiner, and the legal costs and disbursements of Mr Mewett, including the travel expenses of his counsel and solicitor.”

(I should add here that the applicant had been born in England and had returned there from Australia to live in March of 1995.)

The basis of the applicant’s application that his evidence on the limitation issues be taken by the Court in England was that he was then unable, for health reasons, to travel to Australia to give evidence.

Whitlam J refused to grant the applicant’s application that his evidence on the limitation issues be taken by the Court in England, not being satisfied on the evidence before him that the applicant was then unable, for health reasons, to travel to Australia to give evidence.

A few weeks after Whitlam J’s decision, the applicant returned to the fray, filing a second notice of motion seeking orders most of which were identical in form to those which had earlier been sought before Whitlam J.

(The identity in form was so extensive that one of the orders sought in the second notice of motion was that the Commonwealth should do something by a date which, although in the future at the time of the filing of the first notice of motion, was already in the past by the time of the filing of the second notice of motion.)

The orders sought in the second notice of motion underwent significant amendment during the course of oral argument before me on the applicant’s second motion and, in the result, may now be summarised as follows: first, the applicant seeks an extension of time under s 23A if it is held that he is barred under s  5(1A); secondly, the applicant seeks that the limitation issues raised by ss 5(1A) and 23A be dealt with at trial, rather than in advance of it (thus contra-dicting the position he took on his first motion and, indeed, in his second notice of motion); thirdly, the applicant seeks that the Judge of trial take in England the evidence on all issues (liability, including limitations, and damages) of the applicant, his wife and Dr Bowman, a consultant psychiatrist who is one of the applicant’s doctors; and, fourthly, the applicant seeks that the Commonwealth bear, in the first instance at least, the cost of the taking of his and his witnesses’ evidence in England. (However, he no longer seeks, as he did on his first motion, to include within that initial cost his own legal costs and disbursements, including the travel expenses of his counsel and solicitor.)

The Commonwealth was content to deal without adjournment with the applicant’s application as amended during the course of oral argument, which amended application it opposed.

As well as relying on some at least of the evidence on which he had relied in support of his first motion, the applicant supported his second motion by certain additional evidence. There were two affidavits by his solicitor, dated 10 July 1998 and 7 August 1998 respectively, both deposing to matters which postdated the decision of Whitlam J and also annexing documents which also postdated that decision. There was a letter dated 21 August 1998 from Mr MacDermott, one of the applicant’s doctors, to the applicant’s solicitor.  Finally, there was an official report dated 1979 into the events of that year concerning HMAS Kimbla which were alleged to constitute the breach by the Commonwealth of its duty to the applicant.

All of the applicant’s evidence was admitted without any objection by the Commonwealth.

As well as opposing the making of the orders sought by the applicant, the Commonwealth sought, during the course of oral argument before me on the applicant’s second motion, two orders in the alternative to those sought by the applicant: first, that the evidence of the applicant, his wife and Dr Bowman be taken by video link from England; and, secondly, that that evidence be limited to the limitation issues, which issues should be dealt with in advance of any other issues then remaining to be dealt with in the proceeding (thus adopting the position formerly adopted by the applicant). The Commonwealth made plain that it recognised that any cost saving associated with the taking of the evidence of the applicant, his wife and Dr Bowman by video link from England, as opposed to the Court’s travelling there to take it, depended on that evidence’s being restricted to the limitation issues, as opposed to its being on all issues, including limitations. Accordingly, the Commonwealth did not press strenuously for the making of the first of the orders it sought if the second were not also to be made.

I asked counsel for the applicant at the hearing whether he had any difficulty in dealing there and then with the Commonwealth’s oral counter-motion; he assured me that he did not.  It was therefore heard concurrently with the applicant’s orally amended motion and opposed by the applicant, the applicant relying for the purpose on the evidence on which he was relying in support of his own motion. As well as opposing outright the Commonwealth’s motion, the applicant also submitted that, if the orders sought by the Commonwealth were to be made, they should be made on the basis that the Commonwealth bear, at least in the first instance, the cost of the use of the video link facility. The Commonwealth made no submission that the orders which it sought should not be made on such basis and it is difficult to see how such a submission could successfully have been made, given that it was the Commonwealth which was seeking an order that the facility be used.

The Commonwealth’s evidence, both in opposition to the applicant’s motion and in support of its own counter-motion, consisted of two affidavits by an officer of its solicitor, one of which had been sworn for the purpose of the applicant’s first motion and one of which was new.

Both affidavits were read without any objection by the applicant.

As is apparent from the fact that the Commonwealth itself sought before me an order that (relevantly) the applicant’s evidence on the limitation issues be taken by video link from England, the applicant’s additional evidence as to his inability, for health reasons, to travel to Australia to give evidence has significantly altered the evidentiary position which obtained on the hearing of the applicant’s first motion before Whitlam J. Indeed, counsel for the Commonwealth, while he did draw attention to the fact that none of the applicant’s additional evidence on the matter was more recent than August of this year and while he did not formally admit that the applicant could not now, for health reasons, travel to Australia to give evidence, did concede that there now existed “substantial” evidence to that effect.

It is sufficient for present purposes that I refer to one aspect of the applicant’s additional evidence, namely, a letter dated 4 August 1998 from Dr Bowman to the applicant’s solicitor, which letter was annexed to the applicant’s solicitor’s affidavit of 7 August 1998. Before referring to the contents of that letter, however, I should mention that, in Sydney in October of 1994, the applicant had “gender realignment” surgery, is now known as “Romana”, rather than “Robert”, Mewett and is referred to by Dr Bowman in the letter as a female.

Dr Bowman, in his letter of 4 August 1998, expressed the opinion, based in part at least on his having interviewed the applicant on that date, that,

                        “… Romana Mewett’s current mental state precludes her from travelling anywhere. She is psychically exhausted and has no toleration of stress. The slightest difficulty throws her into feelings of rejection and she becomes hostile and resentful and threatening…. [H]er threats include harming herself and indeed others. She is therefore under the slightest stress likely to have a catastrophic reaction with a violent outburst that could be directed towards herself or others. Therefore it can be inferred that travel by air to Australia is totally out of the question. Romana would be a danger not only to herself but others on the flight …”

In the circumstances, I am satisfied that the applicant is presently unable, for health reasons, to travel to Australia to give evidence.

If I had not been so satisfied, it appears to me that the appropriate course would have been for me to dismiss the motions both of the applicant and of the Commonwealth.  However, as I am so satisfied, I must now decide which of the alternative courses urged by the parties is the more likely to promote the interests of justice in the present proceeding. Should the Court take by video link from England the evidence, restricted to the limitation issues, of the applicant, his wife and Dr Bowman, as the Commonwealth urges, or should it instead travel to England to take the evidence of those witnesses on all issues simultaneously, as the applicant urges? In either event, should the Commonwealth be required to bear, in the first instance at least, the cost of such procedure, excluding the applicant’s own legal costs and disbursements?

I have decided that the preferable course in all the circumstances is that urged by the Commonwealth, but on the basis that it should bear, in the first instance at least, the cost of such procedure, excluding the applicant’s own legal costs and disbursements.

I propose to discuss below the nature of the applicant’s opposition to such a course and why I reject it, but it is worth mentioning immediately that there was something which formed no part of that opposition, namely, a submission by the applicant’s counsel about the inherent undesirability of the Court’s dealing with the limitation issues in advance of any other issues then remaining to be dealt with in the proceeding. It would have been difficult for such a submission to be made successfully, since it is a commonplace that limitation issues are dealt with in that way, particularly when they include an application for an extension of time within which to sue.  Furthermore, the applicant had, until oral argument began on his second motion, desired that those issues be dealt with in precisely that way in the present proceeding.

Instead, the only basis upon which the applicant’s counsel opposed the adoption of the course urged by the Commonwealth (even on the footing of the Commonwealth’s being required to finance it, at least in the first instance) was that the applicant (and, presumably, his witnesses) might create a less favourable impression on the Judge when their evidence was taken by video link than they would if their evidence was taken in the Judge’s presence.

That matter was one which was adverted to by Whitlam J in passing in his reasons for judgment of 12 June 1998. His Honour did not then have before him, as I do now, an application for the taking of the evidence of (among others) the applicant by video link from England, but he said that he considered it appropriate to make two observations on the desirability of such a course, if such an application were to be made. The second of those observations was obviously intended to counterbalance the first. They were (at 8),

“First, there may be perceptual distortions in the appearance of witnesses on video conferencing monitors. These may affect the perceived demeanour of a witness. See Loretta Re, Oral v Written Evidence: The Myth of the ‘Impressive Witness’, (1983) 57 ALJ 679 at 687. Secondly, findings on credit are, however, not made ‘in a vacuum’ without relating a witness's evidence, demeanour and particular circumstances to the other material evidence in the case: NRMA Insurance Ltd v Tatt (1989) 94 FLR 339 per Samuels JA at 352-353.”

To Whitlam J’s reference to the reasons of Samuels JA in the Tatt case, I add a reference to the reasons for judgment of Young J in Laporte Group Australia Ltd vVatselias (unreported, Supreme Court of New South Wales, Equity Division, 25 November 1991). In the latter case, in ordering that the evidence of a witness be taken by video link, his Honour said (at 2) that,

“… although the video system may mean the Judge misses out on some of the feel of the witness’ personality in much the same way as the difference between live theatre and the movies, the other aspects of demeanor [sic] are present to assess the witness’ credit.”

As to the factor mentioned by Whitlam J as tending against the use of video link evidence, in my view, such a factor, whatever its importance when the trier of fact concerned is a jury, is of much less importance when the trier of fact concerned is a Judge. However, assuming that there exists some risk that the applicant and his witnesses might be disadvantaged in that respect if their evidence were taken by video link rather than in the Judge’s presence, nevertheless I consider that it is appropriate in the present circumstances to require the applicant to bear that risk, given the only alternative which he proposes to the use of the video link.

That alternative is the giving of the evidence of himself and his two witnesses in the Judge’s presence in England on all issues, including limitations, in circumstances in which the Commonwealth would be required to bear the significantly greater cost of that alternative, at least in the first instance. Since the applicant asserts his own impecuniosity as a reason for requiring the Commonwealth to bear the cost of that alternative in the first instance, I consider myself entitled to proceed on the basis that the Commonwealth would be unable to recover that cost from the applicant if the applicant’s claim were ultimately dismissed and the Commonwealth were awarded the costs of the proceeding, an inability which the applicant does not deny.  I would regard that as an unjust outcome, especially since the applicant chose to commence the present proceeding in Australia and then to depart the country. 

The applicant offers two reasons why the Commonwealth’s inability referred to above is irrelevant for present purposes.

First, he says that I should proceed on the assumption that the applicant’s claim will ultimately succeed, so that no order for the costs of the proceeding will be made against him. In order to persuade me that I should proceed on that assumption, he has taken me to paragraph 16 of the 1979 official report to which I have already referred above as being part of the applicant’s evidence on the current motion additional to that on which he had relied on his first motion.

I consider that I am quite unable to form any view simply from that paragraph as to whether the applicant will succeed in his claim against the Commonwealth, even assuming it were appropriate for me to attempt to do so. Among other things, that paragraph, of course, does nothing whatever to assist the applicant on the limitations aspect of the matter, which is a hurdle he must overcome in addition to the other issues on liability.

I therefore reject the submission that I should ignore the Commonwealth’s inability to recover from the applicant the cost of the Court’s taking evidence in England because I should proceed on the assumption that the applicant’s claim will ultimately succeed and that therefore no order for the costs of the proceeding will be made against him.

Secondly, the applicant says that the Commonwealth should in any event bear ultimate responsibility for funding the cost of the Court’s taking evidence in England, because if it had not sought to dispose of the applicant’s claim by raising the s 44 issue referred to above, then all of the necessary evidence on the limitation issues would have been concluded before March 1995, when he left the country.

As to that submission, there are at least two answers.

First, the applicant is not seeking that the Commonwealth fund the cost of the Court’s taking the evidence in England on the limitation issues alone, but rather on all issues, including limitations, and it is not apparent to me that evidence on all issues would have been completed by March 1995 if the s 44 issue had not been raised.

Secondly, if one is to attribute to the Commonwealth responsibility for the fact that the necessary evidence was unable to be concluded between June 1994 and March 1995, because the Commonwealth was pursuing its s 44 point, one could equally attribute to the applicant responsibility for the fact that the necessary evidence was not concluded between August 1990 and June 1994, nonetheless though the applicant claims to have become aware in August 1990 that he suffered from post-traumatic stress disorder caused by the Commonwealth’s breach of duty and could presumably have commenced his proceeding then.

For the reasons just given, I reject the submission that I should ignore the Commonwealth’s inability to recover from the applicant the cost of the Court’s taking evidence in England, because it is appropriate for the Commonwealth to bear that cost even if the applicant’s claim should ultimately be dismissed.

In all the circumstances, therefore, orders should be made to the following effect: first, the limitations issues under ss 5(1A) and 23A should be dealt with in advance of any other issues then remaining to be dealt with in the proceeding; secondly, the evidence on those issues of the applicant, his wife and Dr Bowman should be taken by video link from England; and, thirdly, the Commonwealth should bear, at least in the first instance, the cost of the use of the video link facility.

Order 24, r 1A of the Federal Court Rules contemplates that, when the Court takes evidence from a witness by video link, it will have directed in advance the procedures by which that will be done.

I direct that the Commonwealth bring in draft short minutes to give effect to these reasons, which draft short minutes, as well as dealing with the three matters referred to in the next preceding paragraph, should deal with the procedures by which the video link evidence of the applicant and his two witnesses will be taken.

Associate:

Date:                28 October 1998