FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v ACM Group Limited (No 1) [2017] FCA 799

ORDERS

THE COURT ORDERS THAT:

1.    Leave is granted for Mr Ryan Clarke to give evidence during the course of the proceeding by video link from Manilla, Philippines on the following conditions:

(a)    ACM is responsible for arranging the necessary video link and for paying the costs of the video link;

(b)    ACM must confirm that the quality of transmission of the service offered by the proposed video-conferencing company called WhyGo is acceptable, following the completion of the test referred to in [23(j)] of Mr McDonald’s affidavit sworn 7 July 2017; and

(c)    an information technology professional experienced in video-conferencing be present in the video-conferencing room in Manilla when Mr Clarke gives his evidence.

2.    Leave is refused for Mr Rolf Francisco to give his evidence by video link.

3.    The respondent in the proceeding must pay the applicants’ costs pertaining to its unsuccessful request to have Mr Francisco give his evidence by video link, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    The respondent (ACM) requests that leave be granted to permit evidence to be given by video link from overseas by two witnesses who have made affidavits in support of its defence and who are required for cross-examination. The two witnesses are Mr Ryan Clarke and Mr Rolf Francisco, both of whom are located in Manilla. The applicants in the substantive proceeding oppose the request in respect of Mr Francisco, but give their consent, in principle, to the request with respect to Mr Clarke.

2    For the reasons which follow, leave will be granted for Mr Clarke to give evidence by video link, on conditions, but leave is refused in respect of Mr Francisco.

Relevant principles

3    The parties did not dispute the relevant principles guiding the exercise of the discretion under s 47A of the Federal Court of Australia Act 1976 (Cth) (the Act). They are set out in cases such as Kirby v Centro Properties Ltd [2012 FCA 60; 288 ALR 601 at [11] per Gordon J; Australian Competition and Consumer Commissioner v Pirovic Enterprises Pty Ltd [2014] FCA 544 at [11] per Flick J; Australian Securities and Investments Commission v Drake [2016] FCA 1024 at [3] per Edelman J and Seymour v Commissioner of Taxation [2016] FCAFC18; 241 FCR 361 at [41]-[42] per Griffiths J.

4    Common factors which may arise for consideration in determining whether to allow evidence to be given by video link include:

(a)    the reason why the video link is sought;

(b)    the attitude of cross-examining parties;

(c)    the quality of the video link and any practical difficulties in the course of examination and cross-examination and how those difficulties might be overcome;

(d)    the importance of the particular witnesses’s evidence; and

(e)    the likely nature and extent of any cross-examination, whether credit is in issue and whether demeanour issues might arise.

5    On the latter matter, where credit is in issue, the disadvantages of taking evidence by video link have been recognised in cases such as Campaign Master (UK) Ltd v Forty-Two International Pty Ltd (No 3) [2009] FCA1306; 181 FCR 152 at [78] per Buchannan J and Mulherin v Commissioner of Taxation [2013] FCAFC 115 at [51] per Edmonds, Griffiths and Pagone JJ.

6    It is desirable to set out in broad terms the nature of the substantive proceedings, which are listed to be heard in Sydney for three days commencing on 26 July 2017. ACM is in the business of debt collection. It purchases aged receivables from businesses such as banks and telecommunications providers at discounted rates and then takes steps to recover those outstanding amounts from debtors. The applicants allege that ACM has engaged in misleading and deceptive conduct and in unduly harassing or coercive conduct contrary to relevant provisions in either the Australian Consumer Law or the Australian Securities and Investments Commission Act 2001(Cth). There is also a claim of unconscionability.

7    The claims relate to dealings between ACM or call centre employees of ACM Philippines in respect of two debtors, whom I will refer to as CT and JR. The claimed misleading or deceptive conduct concerning JR relates to a telephone call between Mr Francisco and JR on 3 September 2014. Mr Francisco was and remains an employee of ACM Philippines and is based in Manilla. The claims of undue harassment and coercion, as well as those relating to unconscionable conduct, in respect of JR are based on the same telephone call. As noted above, Mr Francisco has affirmed an affidavit in the proceeding and he is required for cross-examination. The applicants have indicated that his credibility and the reliability of his evidence will be challenged. They also say that there will be a need to cross-examine Mr Francisco on various documents and that, while a bundle of documents could be prepared and presented to him in advance of him giving evidence from Manilla, practical difficulties could arise if other documents need to be shown to him at short notice.

8    In support of its requests, ACM relies on an affidavit sworn by its instructing solicitor, Mr Scott McDonald. Mr McDonald gave evidence that both witnesses are located in the Philippines and ACM had only very recently discovered that neither of them could likely travel to Sydney for the hearing.

9    It is sufficient to concentrate on Mr Francisco because the applicants consent to Mr Clarke (who is no longer an employee of ACM) giving his evidence by video link on conditions. Mr McDonald deposed that Mr Francisco is willing to travel to Sydney with ACM assistance but he currently does not have a passport and, although he has applied for one, it appears unlikely that it will be issued and any requisite visa obtained prior to the hearing. Further, Mr McDonald deposed that, on 7 July 2017, Mr Francisco suffered an injury to his leg and that, as at the date of his affidavit (also 7 July 2017) it was not yet known whether the injury could affect Mr Francisco’s ability to travel to Sydney. No further evidence was filed by ACM in respect of this matter.

Disposition of the request

10    The parties consented to the requests being determined on the papers. Both filed brief submissions in support of their respective positions, which I have taken into account.

11    I propose to grant leave for Mr Clarke’s evidence to be given by video link on the following conditions:

(a)    ACM is responsible for arranging the necessary video link and for paying the costs of the video link;

(b)    ACM must confirm that the quality of transmission of the service offered by the proposed video-conferencing company call WhyGo is acceptable, following the completion of the test referred to in [23(j)] of Mr McDonald’s affidavit sworn 7 July 2017; and

(c)    an information technology professional experienced in video-conferencing be present in the video-conferencing room in Manilla when Mr Clarke gives his evidence.

12    I do not consider that it is necessary to also order that a lawyer familiar with Australian trial procedure be present, as sought by the applicants. It will be a matter for the applicants to discuss with ACM’s Australian solicitors appropriate arrangements for providing to Mr Clarke copies of documents which may arise in cross-examination.

13    Different considerations arise in respect of Mr Francisco. His evidence is central to the applicants’ case relating to JR. The applicants have also indicated that his credit is in issue and that it will be prejudiced if Mr Francisco is unable to be cross-examined in the Courtroom. I accept those submissions. I also accept that it is desirable that Mr Francisco be personally present for cross-examination in circumstances where the applicants have indicated that they propose to cross-examine him on various documents, including some which may need to be put to him at short notice.

14    I also accept the applicants’ submissions that there are discretionary reasons for refusing the request in respect of Mr Francisco. No explanation has been provided for the delay in Mr Francisco applying for his passport on 23 June 2017 when notice was given on 14 June 2017 that he was required for cross-examination. The hearing dates for this matter were set down in November 2016 and Mr Francisco’s affidavit was served on 10 March 2017. I appreciate that the practical consequence of requiring Mr Francisco to be physically present when he gives evidence may mean that little or no weight is given to his affidavit if it turns out that he is unable to attend because of immigration requirements. But that arises from ACM’s unexplained delay in having him, an employee, apply so late for a passport and visa.

Conclusion

15    For these reasons an order will be made, on conditions, that Mr Clarke has leave to give his evidence by video link. The request in respect of Mr Francisco is refused. ACM should pay the applicants’ costs in respect of its request concerning Mr Francisco.

Associate:

Dated:    14 July 2017