FEDERAL COURT OF AUSTRALIA

Stuke v ROST Capital Group Pty Ltd [2012] FCA 1097

THE COURT ORDERS THAT:

1.     The application to take evidence from Veila Ayala Aguirre by video link from Mexico be refused.

2.    The question of costs be reserved.

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

REASONS FOR JUDGMENT

1    This is a dispute arising out of the termination by the first and second respondents (respectively ROST and Crown) of the employment of Alexander Stuke. Mr Stuke alleges that he did not receive certain payments due to him for work performed for them and that his employment was wrongly terminated. He claims that in each of these respects ROST and Crown contravened various provisions of the Fair Work Act 2009 (Cth). The case against the third and fourth respondents is that they were involved in the contraventions within the meaning of s 550 of the Act. The proceeding was started in the Federal Magistrates Court of Australia and transferred to this Court.

2    The respondents maintain that their conduct was not unlawful and each has filed cross-claims against him. In its response to the application ROST denies that it terminated Mr Stuke’s employment and that it was obliged to pay him the amounts alleged. Rather, it claims (amongst other things) that Mr Stuke engaged in serious misconduct, was in serious breach of his contract, repudiated the contract and that it accepted the repudiation.

3    The hearing is due to start on 15 October 2012 and is estimated to run for two weeks. The hearing dates were fixed on 8 June 2012 after hearing dates that had earlier been appointed for July 2012 had been vacated.

4    Two of the witnesses ROST wishes to call live and work in Mexico. They are Veila Ayala Aguirre and César Gamboa Sainz (Mr Gamboa). No affidavits have been taken from them but outlines (or, more accurately, summaries) of their evidence have been filed and served. By an interlocutory application filed on 28 September 2012 ROST apply to have their evidence taken by video link. Mr Stuke opposes the application. At ROST’s request, the application for Mr Gamboa to give evidence by video link has been stood over to the first day of the trial. This judgment is therefore concerned only with the application concerning Ms Aguirre.

The evidence in support of the application

5    The application is supported by three affidavits. One, sworn by Kelly Ruth Douglas, a solicitor employed by Piper Alderman, which acts for ROST, deposes to two conversations with Ms Aguirre, the effect of which is that she is reluctant to come to Australia.

6    Ms Douglas said that on or about 9 May 2012 she telephoned Ms Aguirre on her mobile phone in Mexico and spoke to her. She does not state what language she used but, in the absence of any evidence that she speaks Spanish, I infer the language was English. This is important because I was informed (only after specific enquiry) that Ms Aguirre would require an interpreter to give evidence. Ms Douglas said the conversation was in words to the following effect:

Ms Douglas:    Our clients would like you to give evidence at trial about your experience.

Ms Aguirre:    Of course. But I work here full time with a very complicated job. I can’t get time off work, and it’s very far to fly to Australia.

Ms Douglas:    Where do you work?

Ms Aguirre:    I work at a company that does administration and accounting, and my job has a lot of responsibility. It is an international company.

Ms Douglas:    Do you think you could have time off for one day or maybe two days to give evidence in Mexico over a video link?

Ms Aguirre:    What is video link?

Ms Douglas:    It is like a Skype call between you in Mexico and the court in Australia. We will be in Sydney and the lawyers will ask you questions that you can answer over the video. The court room can see you when you are speaking and you can see the court room in Australia.

Ms Aguirre:    Oh yes. Yes, I can do that. This would be much better for me because of my job. I am scared to lose my job if I am away for too long and [evidence rejected].

7    Ms Douglas said that she had a second telephone conversation with Ms Aguirre (presumably also in English) on or about 25 September 2012 in words to the following effect:

Ms Aguirre:    Can I give evidence over video link?

Ms Douglas:    I am not sure yet. You may need to come to Australia to give evidence.

Ms Aguirre:    That is very difficult for me. I still have the same job. I am now in charge of invoicing so I have a lot of responsibility. I cannot take time away except for weekends. The weekend is maybe not even enough time to fly to Australia from here. I also have to look after my 6 year old step daughter.

Ms Douglas:    Do you look after her all the time or only some of the time.

Ms Aguirre:    Yes, all of the time.

8    Mr Ivantsoff, the solicitor on the record for ROST, also deposed to the costs associated with procuring the attendance in Australia of the Mexican witnesses. He estimated the costs of the two witnesses giving evidence in Australia at between $6,900 and $7,690 and the costs of them giving evidence by video link at $4,077. That translates in Ms Aguirre’s case to $3,450 to $3,845 to bring her to Australia and $914 for her to give evidence by video link. The estimates were based on Mr Ivantsoff’s opinion that the evidence of Ms Aguirre will last for no more than 1½ hours. This evidence was later superseded. It is now agreed that the total costs associated with taking Ms Aguirre’s evidence by video link will be $1,169.80 for the first hour and $1,069.80 for each subsequent hour. That means that the costs will be $1,704.70 for 1½ hours or $2,239.60 if the evidence takes two hours.

9    ROST submits that it is cheaper for the evidence to be given by video link and more convenient to the witness. Cost is obviously a relevant, indeed an important, consideration. The Court is required to exercise its powers as inexpensively and efficiently as possible (Federal Court of Australia Act 1976 (Cth) (“FCA Act”), s 37M(3)). ROST also submits that the practical effect of refusing the application would be to deny ROST the opportunity to call the witness because of the difficulties involved in compelling the attendance of an unwilling witness resident in a foreign country.

Does the Court have the power to make the order?

10    The Court or a Judge may, for the purpose of any proceeding, direct or allow testimony to be given by video link: FCA Act, s 47A(1). Plainly, whether or not it should is a matter for the Court’s discretion. But there are limits to the Court’s power. The Court or a Judge must not exercise the power conferred by s 47A(1) unless the conditions described in s 47C are satisfied. Section 47C(1) relevantly provides that the power must not be exercised unless the Court or Judge is satisfied that the courtroom where the Court or Judge is sitting is equipped with facilities to enable all eligible persons present in the courtroom to see and hear the person giving the evidence by video link (para (a)) and that the place where the witness is located is equipped with facilities to enable all eligible persons in that place to see and hear each eligible person in the courtroom where the Court or Judge is sitting (para (b)). The section also provides for the need to comply with any conditions prescribed by the Rules (para (c)) or which are otherwise imposed by the Court of the Judge (para (d)). No conditions are prescribed by the Rules but the Court imposes certain conditions that are published on the Court’s website, entitled “Responsibilities of Party/Organisation requesting a Videoconference”.

11    “Eligible persons” are defined in s 47C(6) for the purposes of the application of the section to a particular proceeding as “such persons as the Court or a Judge considers should be treated as eligible persons for the purposes of that proceeding”. In this case the eligible persons in the courtroom would be the parties, their legal representatives and the judge. The eligible persons in the remote location would be the witness and her interpreter.

12    This Court has the necessary facilities to satisfy paragraph (a) but the affidavits filed with the interlocutory application did not address the requirements in paragraph (b).

13    ROST filed in Court a second affidavit from Ms Douglas. In it Ms Douglas deposes to a conversation with Logan Lovelace, whom she states is the “Americas Operations Director” of a business known as “Whygo”, in the early hours of the morning of 5 October 2012, the day the interlocutory application was listed for hearing. The conversation concerned the business’s videoconferencing facility at Avenue President Masaryk in Mexico City. The affidavit also annexes a number of pages apparently downloaded from Whygo’s website, the conditions published on the Court’s website and email exchanges with Mr Lovelace following up on the conversation. I note that those exchanges do not include information about the availability of the business’s videoconferencing facility during specific periods in the second week allocated for the trial, the period Ms Douglas indicated the facility would be required.

14    In the conversation Ms Douglas asked Mr Lovelace for a quote for the use of the facility “for some time” during the period the case is set down for trial. When asked what her technical requirements were, Ms Douglas replied:

We are conducting a court case here in Australia and the Federal Court here has specific requirements about the equipment. I will need a facility that has 24 hour access to cope with our time differences, with ISDN or IP capable equipment operating at 384Kbps and good quality visuals. Does the facility have all of these things?

15    Mr Lovelace told her it does. That evidence, together with the material from the Court’s website, establishes that the Mexican venue has facilities that would enable it to send and receive sound and pictures of the maximum audio and visual quality as the Court can send and receive and that the network connection should be compatible. The information from Whygo’s website indicates that the venue’s capacity is “8”, which I am prepared to accept means eight people, and that internet is available “free of charge”, which I take to mean at no extra cost.

16    The rest of the conversation concerns the need for ISDN and the request for the quote. The critical question – whether the videoconferencing venue in Mexico is equipped with facilities to enable the witness and the interpreter to see and hear the judge, the parties and their legal representatives in the courtroom in Sydney – is not directly addressed. Nor is the question whether the facilities would enable those persons in Sydney would be able to see and hear the witness and her interpreter. Nevertheless, the information to which I have referred is sufficient to enable me to infer that they are. In the result, (assuming the venue is actually available at the relevant time) I am satisfied that the place at which it is proposed that Ms Aguirre give evidence is equipped with facilities to enable the witness and the interpreter to see and hear the eligible persons in the courtroom and vice versa.

Should the order be made?

17    Notwithstanding that I have the power to make the proposed order, I am not satisfied that this is a proper case in which to exercise it.

18    The authorities and the relevant principles were recently summarised by Gordon J in Kirby v Centro Properties Ltd (2012) 288 ALR 601 (“Centro”).

19    There are two schools of thought about the approach to evidence by video link. On the one hand, there is the view that, given the advanced state of video link technology and the convenience and savings in costs and time, the Court will only decline to make an order if the opposing party makes out a substantial case against its use. The case most frequently cited in support of this view is the decision of Katz J in Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 (“Tetra Pak”). But his Honour was there dealing with an application to take evidence from an expert witness. In Versace v Monte [2001] FCA 1454 where, at [16], Tamberlin J cited Tetra Pak as authority for the proposition that a substantial case needs to be made to warrant the Court declining to make such an order, there was substantial agreement between the parties that this course should be followed. On the other hand, this approach has been rejected in a number of cases in this and other courts. In Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd (2001) 53 NSWLR 1 Palmer J (“AMI v Marconi”) declined to follow Tetra Pak and said (at 5) that “where the matter in contest involves major issues of credit … it is still desirable, in my opinion, to have the witness in Court for examination, unless good reasons are shown to the contrary”. Since then, several judges in this Court have taken a similar stance. In Australian Competition and Consumer Commission v World Netsafe Pty Ltd (2002) 119 FCR 303 (“World Netsafe”) Spender J disagreed with Katz J and the authorities on which he had relied in Tetra Pak and said he thought it “right to recognise that there are deficiencies when evidence is taken by video-link when compared with evidence given viva voce” (by which he plainly meant in person in the courtroom). The Full Court referred to these remarks with approval in Odhiambo v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 29 at [97] (“Odhiambo”).

20    In Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (unreported, NSWSC, Giles CJ Comm D, 11 March 1997) (“Sunstate”) in a passage of which Palmer J approved in AMI v Marconi and Spender J in World Netsafe, Giles CJ Comm D said:

The conduct of proceedings in open court, available to public scrutiny, is of great importance. 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 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 finding by observance of what is misleadingly called the demeanour of the witnesses, upon which the taking of video evidence may impact.

21    His Honour contrasted the position where, the evidence is “relatively uncontroversial”, the cross-examination unlikely to be lengthy or “no real issue of credit is involved”.

22    Although these remarks were made 15 years ago, they apply with just as much force now.

23    Following an extensive review of the authorities, in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 (“Campaign Master”) Buchanan J concluded (at [77]) that their trend was to emphasise the need for a persuasive case to be made out to use video link to take evidence and particularly to order it over the objection of the cross-examining party and (at [78]) that a case must be made out for the use of video link evidence if it is opposed by an affected party. Whether or not, as a matter of law, there is such a requirement need not be determined here. In every case, as Gordon J observed in Centro at [11] (cf. Australian Competition & Consumer Commission v StoresOnline International Inc [2009] FCA 717 at [14]), the question will be: “what will best serve the administration of justice consistently with maintaining justice between the parties” and that involves a balancing exercise. In this case, in my view, the balance swings against taking the evidence by video link.

24    First and foremost, the evidence sought to be adduced from Ms Aguirre is highly controversial. As I mentioned earlier, there is no affidavit or signed statement from her. At a directions hearing on 24 April 2012, counsel for the respondents told me that one of the Mexican witnesses would not talk to ROST’s lawyers and one might. He said he might be able to “get him” but may not be able to take an affidavit from him. It was in this context that outlines of evidence came to be served from Ms Aguirre and Mr Gamboa.

25    Ms Aguirre’s evidence involves allegations of sexual harassment. The outline refers to two incidents in late 2008 when she was performing administrative duties for Australian Minerals Group (AMG) in Guadalajara, the capital of the Mexican state of Jalisco. In the first incident the outline recites that Mr Stuke followed Ms Aguirre into a small bathroom and made comments of a crude and sexual nature that made her feel uncomfortable in the workplace. The comments have never been particularised. The second is alleged to have taken place at a business dinner in a restaurant where, it is claimed, Mr Stuke came up close to Ms Aguirre and touched her “in an inappropriate manner” (again unparticularised) causing her to become upset. The second incident is said to have been reported to Robert Brozky, after which Mr Stuke is said to have caused AMG to give Ms Aguirre an unspecified sum of money. The final statement is that Ms Aguirre ceased working for AMG in late 2008. Mr Stuke denies all the allegations of impropriety.

26    Mr Brozky has filed an affidavit in the proceeding which ROST intends to read. In it he relates the conversation he had with Ms Aguirre after the alleged restaurant incident. My attention was drawn to inconsistencies between what is stated in the outline and what appears in his affidavit. Unsurprisingly, counsel for Mr Stuke, Mr Darams, indicated he wished to cross-examine Ms Aguirre on those inconsistencies.

27    The evidence of Ms Aguirre is not central to the case ROST brings. It raises an issue that was not even pleaded in the Amended Response to Application filed in the Federal Magistrates Court in December 2010, nor in ROST’s cross-claim and is particularised as the 54th of over 70 allegations of Mr Stuke’s failure to perform his duties in the Second Further Amended Notice of First Respondent’s Cross-Claim filed in Court last Friday. On the other hand, what Ms Aguirre says (if accepted) may well have justified instant dismissal so that, as Mr Darams submitted, that would (or at least might) mean that ROST could succeed on the basis of her evidence alone. This means that the evidence potentially has very serious ramifications for Mr Stuke and Ms Aguirre is an important witness. In the circumstances Mr Stuke, who disputes the truth of what it is said she will say, should be able to test her evidence without the limitations inherent or possible in video transmission.

28    In resolving the issue of credit, the demeanour of the witness may be of some importance.

29    Demeanour is probably overrated as a tool for evaluating whether a witness is telling the truth. See McClellan CJ at CL, Who is telling the truth? Psychology, common sense and the law, www.lawlink.nsw.gov.au/lawlink/Supreme_Court/11_sc.nsf/pages/SCO_mcclellan020806.

30    But the primacy the appellate courts still afford decisions of trial judges on questions of credit is in part due to “the subtle influence of demeanour” (Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178, 179; Fox v Percy (2003) 214 CLR 118 at [65]). Subtle changes in demeanour may be apparent in a courtroom and not so apparent if the evidence is given by video link (as the Full Court of the Family Court accepted in K v S (2001) 161 FLR 71 at [24]), although, as Austin J observed in Australian Securities and Investments Commission v Rich [2004] NSWSC 467 at [28], they are likely to be picked up by a video camera. And what if there is a delay in giving a response to a critical question? It may be impossible to tell whether the delay is due to evasiveness or uncertainty on the part of the witness or merely to difficulties with the transmission. Giles CJ Comm D adverted to the problem of delay in his judgment in Sunstate.

31    In my view the cross-examiner is almost always at a disadvantage (and often a significant one) cross-examining a witness giving evidence from a remote location where credit is in issue. I agree with Buchanan J in Campaign Master when he said at [78]:

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.

32    As Perram J said in Blackrock Asset Management Australia Services Limited v Waked (No 2) [2011] FCA 479 at [46], these are powerful considerations in every case. That is particularly so where, as here, the credit of the witness is of central importance. In her conversation with Ms Aguirre in May Ms Douglas likened the experience of giving evidence via video link to having a telephone conversation by Skype. Whilst the analogy may have been useful and is understandable, it is an imperfect one and may have unintentionally given the witness an impression of informality.

33    Secondly, the proposal here is that the witness gives evidence through an interpreter. I agree with Mansfield J that giving evidence through an interpreter by video link would be “a most unsatisfactory method of resolving contentious and critical issues of fact” (Mastipour v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 140 FCR 137 at [37]). In Odhiambo the Full Court referred at [99] to the limitations of taking evidence by video from applicants in the Refugee Review Tribunal, “particularly where language and demeanour may be relevant if not significant in assessing the veracity of what the applicant … is saying”. Admittedly that remark was made in a different context where additional considerations are involved but the point is pertinent nonetheless. Non-verbal communication is likely to be important and may be more difficult to discern in a video transmission.

34    ROST points out that in New South Wales complainants in criminal proceedings for certain sexual offences are entitled to give evidence by closed circuit television and the rule is that evidence is taken in this way except where the witness chooses or the Court orders otherwise. See Criminal Procedure Act 1986 (NSW), s 294B. But it is not the rule in civil proceedings and not the rule in this Court. In this Court giving evidence by video link is the exception. As in Campaign Master, the applicant (ROST) did not dispute that normally the other party could insist on the physical presence of a witness for cross-examination.

35    Thirdly, Mr Darams indicated that he might wish to have Ms Aguirre illustrate on paper what she alleges occurred between her and Mr Stuke. Although a document camera is available at Federal Court sites, the evidence annexed to Ms Douglas’s affidavit of 5 October 2012 states that the technology is useful for transferring and viewing images between sites but is unsuitable for viewing documents.

36    Fourthly, although the difference in costs is substantial, in the scheme of things the additional cost of bringing the witness to Australia is not great. Moreover, the estimate of costs for video transmission may well be understated, especially in the absence of an affidavit, signed statement or even proof of evidence. The evidence may take longer than Mr Ivantsoff estimated, particularly as an interpreter will be involved. After all, lawyers with the best will in the world frequently underestimate these matters. In any event, although cost is an important consideration, so, too, is fairness to all parties.

37    Fifthly, although the Court may take into account the employment commitments of the witness (see Centro at [10]), I do not think they are entitled to a great deal of weight. Giving evidence is inconvenient to any witness and no doubt the longer the witness is required the more inconvenient it will be. Courts will try to accommodate the convenience of witnesses wherever possible but the primary consideration will always be the interests of justice.

38    Sixthly, I am not persuaded that if the application were refused ROST would not be able to call the witness. I am not satisfied on the evidence that she would not come if asked. In the first place, as Ms Aguirre apparently requires an interpreter to give evidence at the trial and in the absence of evidence about her facility with the English language, it is difficult to place any weight on the evidence of Ms Douglas’s conversation with her. In any case, there is no evidence that the statements that she cannot take time off were based on anything more than supposition or conjecture. I appreciate that it would be very inconvenient to her to travel to Australia. ROST submitted that, if she did, her stepdaughter would be left without a primary carer. But there is no apparent reason why, if necessary, the child could not be cared for by her father or mother or other relative for the three days that she would be away from home or, for that matter, accompany her stepmother to Australia (although that would obviously increase the cost of air travel). Further, steps could be (or could have been) taken to compel Ms Aguirre’s attendance. Mexico is a signatory to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. Counsel for ROST indicated that the procedure under the Convention would take two to four months to complete. I was advised that no application had been made “because we did not want to trouble her” and it was not “the most conducive way to have an independent witness give evidence”. I found this submission unpersuasive. The interlocutory application was filed very late, while I was (to the knowledge of the parties) on leave and listed for hearing only six working days before the trial is due to start. If the application had been made at or before the time the proceeding was set down for trial, ROST would not be in this position now.

39    For these reasons, the application is refused. I reserve the question of costs.

Associate:

Dated:    8 October 2012