FEDERAL COURT OF AUSTRALIA

Hanson-Young v Leyonhjelm (No 3) [2019] FCA 645

ORDERS

THE COURT ORDERS THAT:

1.    On the Applicant’s Interlocutory Application filed 26 April 2019, pursuant to s 47A of the Federal Court of Australia Act 1976 (Cth) the testimony of Senator Jordon Steele-John may be taken by videolink to the Perth Federal Court.

2.    The Applicant’s application for the evidence of Senator Rachel Siewert to be taken by videolink is refused.

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

EX TEMPORE REASONS FOR JUDGMENT

WHITE J:

1    By an interlocutory application filed in the Court on the morning of Friday, 26 April 2019, the applicant seeks orders pursuant to s 47A of the Federal Court of Australia Act 1976 (Cth) allowing the evidence of two of her proposed witnesses to be taken by videolink from a courtroom of the Federal Court in Perth. The two witnesses are Senators Siewert and Steele-John. The respondent opposes the order sought by the applicant.

2    The exercise of the discretion under s 47A has been considered in a number of authorities. Generally, the Court takes the view that the contested evidence of a witness and the cross-examination of the witness on that evidence, should take place in the courtroom in which the trial has been conducted. The reasons for this were articulated by Buchanan J in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; (2009) 181 FCR 152 at [78]. The decision in Campaign Master has been followed in a number of later decisions.

3    It is for the applicant to show that the exercise of the discretion which she seeks is appropriate.

4    The matters on which the applicant relies in the present case are these:

(a)    Senators Siewert and Steele-John are resident in Perth;

(b)    the evidence each will give is expected to be relatively short;

(c)    there would be inconvenience to the Senators if they have to travel to Sydney to give evidence having regard to the length of the travel time and their distraction from other activities;

(d)    in Senator Siewert’s case, she will have to cancel speaking commitments in Perth;

(e)    there is the expense involved in bringing the two Senators to Sydney; and

(f)    in Senator Steele-John’s case, the difficulties in travel are exacerbated by the restrictions on his mobility resulting from his cerebral palsy. He uses a wheelchair and has a personal aide travel with him. The addition to the time required for his travel, the ease with which he can move and the travel itself has more than the usual tiring effect on him.

5    There are countervailing factors, to some of which counsel for the respondent referred. Today’s trial date has been known for some time, having been indicated provisionally on 18 October 2018 and confirmed on 18 December 2018. The applicant has had ample time in which to make arrangements for the attendance for the witnesses and yet, as noted at the commencement of these reasons, the present application was filed only on the morning of 26 April 2019 (having been lodged for filing after the close of business on 23 April 2019).

6    Senator Siewert made her affidavit containing her evidence in chief on 14 February 2019 and can be taken to have been informed of the trial date at least by that time. It is not suggested that the commitments which Senator Siewert has now were made before 14 February 2019.

7    Further, both Senators intend, in any event, to travel from Perth to Canberra for the launch of the election campaign of the Australian Greens political party on Wednesday, 1 May 2019. They will thereby be absent from Perth by choice and will be making the substantial flight from the western seaboard.

8    Although the current election campaign is obviously an important matter, I am disinclined presently to attach much weight to the desire of Senator Siewert to engage in election campaigning activities. That is because the Court raised with the parties, on 18 October 2018, whether or not it should take account of the probable Federal election when setting today’s trial date. The Court was then assured on each side that it need not take account of that prospect.

9    In my view, these matters indicate that the applicant’s present application cannot be regarded as strong.

10    I indicate that I do not regard the respondent’s submission that the Court may choose to adjourn the hearing to Canberra to take the evidence of Senators Siewert and Steele-John as being practical.

11    Despite my reservations about the strength of the applicant’s application, I do consider that the limitations on the mobility of Senator Steele-John to be a matter to which the Court should attach significance. I accept that he will require more than the usual time in travelling to and from the airports and that the travel is likely to have tiring effects on him. There is, in addition, the additional expense associated with flights and accommodation having to be arranged for his personal aide.

12    These matters, together with my present assessment that the evidence of Senator Steele-John is likely to be relatively short, are sufficient to persuade me that it is in the interests of justice for his evidence to be taken by videolink.

13    The position with respect to Senator Siewert is different. On one view, it could be said that, if the evidence of Senator Steele-John is to be taken by videolink from Perth, then there is not much additional adverse impact on the administration of justice if the evidence of Senator Siewert is also taken from Perth by means of videolink.

14    However, I consider that the general principle upon which the Court acts should be applied in the case of Senator Siewert and I decline to allow the applicant to adduce her evidence by means of videolink from Perth. I take into account in particular that Senator Siewert intends, in any event, to travel from Perth to Canberra on Wednesday of this week. The additional trip to Sydney does not seem to me, at least on what I know presently, to involve much greater inconvenience.

15    Accordingly, the application for evidence to be taken by videolink is allowed with respect to Senator Steele-John but refused with respect to Senator Siewert.

Associate:

Dated:    8 May 2019