FEDERAL COURT OF AUSTRALIA

Dorajay Pty Ltd v Aristocrat Leisure Limited [2007] FCA 1502 

DORAJAY PTY LTD v ARISTOCRAT LEISURE LIMITED

NSD 362 OF 2004

STONE J

20 SEPTEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.         The respondent’s notice of motion dated 11 September 2007 and filed on 12 September 2007 is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The respondent in this proceeding, Aristocrat Leisure Limited, seeks by notice of motion an order that the Court allow the testimony of Ronald Mark Rowan to be given by video link with the United States, where he is resident.  The applicant, Dorajay Pty Ltd, opposes that application. 

2                     There is no doubt that the Court has power under s 47A of the Federal Court of Australia Act 1976 (Cth) to the make the orders sought by the respondent.  It is also entirely clear that this is a matter for the discretion of the Court, bearing in mind the need to do justice to both parties. 

3                     I am told today that the most important factual issue that remains in contention between the parties relates to the respondent’s profit forecast for the second half of 2002.  Mr Rowan was the chief financial officer of the respondent’s North American subsidiary during that period and has sworn a lengthy affidavit in which he gives detailed evidence concerning that period and that issue.  The applicant submits that it will be taking issue with Mr Rowan’s evidence both in regard to its inconsistency with evidence to be given on behalf of the applicant and also with evidence given in previous proceedings in the New South Wales Supreme Court.  It is inevitable, then, that Mr Rowan will be subject to lengthy cross-examination on his very detailed affidavit.  The estimates that have been given today indicate that such cross-examination is likely to take between one and a half and two days.

4                     The reason that a video link is suggested for Mr Rowan’s testimony is said to be that business commitments with his present employer, Monarch Casino & Resort Incorporated, make it impossible for him to leave the United States at any time during the period for which the hearing of this matter has been set down.

5                     Mr Rowan has not given direct evidence on the matter however the respondent has read two affidavits, one by Jennifer Anne Campbell, a solicitor employed by the solicitors for the respondent, and one by Severin A Carlson, United States attorney for Mr Rowan.  Both Ms Campbell and Mr Carlson attest that they have been informed by Mr Rowan that his commitments will not allow him to travel to Australia in the relevant period.  I accept the evidence that both deponents were so informed by Mr Rowan.

6                     Both affidavits, however, are light on details of the commitments which result in Mr Rowan being unable to spare the time from his work to come to Australia.  I accept, given his position at Monarch, that he is a senior executive who has considerable responsibilities and obligations and it follows, it seems to me, that he would be a very busy man.  However, there is really no more in the evidence than the assertion that he is too busy to come.  That may well be the case but it is hardly compelling in the absence of detail.  None of this would be of crucial importance were it not for the difficulties that attend the taking of evidence by video link and the cross-examination on that evidence.  Mr Darke has persuasively argued that technical difficulties can be overcome and that these difficulties are less, perhaps, than they have been in the past.

7                     In my experience, however, those difficulties are considerable and markedly interfere with the giving of the evidence and, particularly, with cross-examination.  They include technical problems such as difficulties with hearing, in presenting documents to the witness, in maintaining transmission over an extended period of time and those arising from time differences.  More importantly, even if those difficulties can be overcome or minimised, there are the problems in maintaining a line of cross-examination and the difficulty of assessing a witness where evidence is given by video link.  As a matter of justice to both parties these problems are critical.  It is perhaps more workable where one is dealing with an expert witness who is generally well-prepared, has written a detailed report and has an expertise and familiarity with the subject that may not be the case with a lay witness.  I accept that Mr Rowan may have some of those qualities.  He is clearly very experienced in his field and his detailed affidavit suggests that he would be well-prepared.

8                     Nevertheless, issues of credit or something very close to credit will undoubtedly arise in dealing with the asserted contradictions in the evidence to which I have referred.  I am not satisfied that justice would be served by allowing this evidence to be given by video link and requiring the cross-examination to be carried out through that same medium.  Mr Darke has admitted the difficulties that arise in taking evidence in this way but says that on balance those difficulties are outweighed by the difficulty for his client if Mr Rowan is not able to give evidence at all.  On that matter I should say that I am not satisfied that Mr Rowan is unable to give evidence in Australia because of the lack of detail about his inability to attend.

9                     Even if I were satisfied on the latter point, it is not at all clear that there are not other employees, past or present, of the respondent who would be in a position to attest to the issues intended to be covered by Mr Rowan.  The applicant has referred to the possibility of the court taking evidence on commission in the United States in accordance with the Foreign Evidence Act 1994 (Cth).  Such a procedure has difficulties of its own as well as raising issues about the effective use of the court resources.  It is not necessary for me to consider that possibility any further because no such application has been made.  I am satisfied, however, that it would not be in the interests of justice to allow Mr Rowan to give evidence by video link over the objections of the applicants and for that reason the notice of motion is dismissed.

10                  The costs in this case should follow the event and therefore the orders of the Court are that the notice of motion is dismissed with costs.

Associate:

Dated:         26 September 2007