Federal Court of Australia

Roberts-Smith v Fairfax Media Publications Pty Limited (No 11) [2021] FCA 396

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 47A(1) of the Federal Court of Australia Act 1976 (Cth) the following persons be permitted to give evidence at the hearing of these proceedings by audio-visual link:

(a)    Person 21;

(b)    Person 62;

(c)    Person 63;

(d)    Person 64; and

(e)    Person 65.

2.    The evidence of Person 21 be given via Cisco from the Australian Embassy in Timor-Leste.

3.    The evidence of Person 62, Person 63, Person 64 and Person 65 be given via Cisco from the offices of Kakar Advocates LLC in Kabul, Afghanistan.

4.    The respondents arrange for an English/Pashto interpreter to be present in the courtroom in Sydney and at the offices of Kakar Advocates LLC at the time that Person 62, Person 63, Person 64 and Person 65 give evidence by audio-visual link.

5.    The applicant be entitled to have in the hearing room in the offices of Kakar Advocates LLC at the time that Person 62, Person 63, Person 64 and Person 65 give evidence a lawyer appointed by him whose name will be provided to the Court.

6.    The respondents file and serve statements of the evidence-in-chief of Person 62 and Person 63, signed by those persons, by 7 May 2021 and statements of the evidence-in-chief of Person 64 and Person 65, signed by those persons, by 14 May 2021.

7.    The costs of the respondents’ interlocutory application dated 11 February 2021 be the respondents’ costs in the cause.

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

REASONS FOR JUDGMENT

BESANKO J:

1    On 1 April 2021, I published reasons with respect to an interlocutory application brought by the respondents and dated 11 February 2021 (Roberts-Smith v Fairfax Media Publications Pty Limited (No 10) [2021] FCA 317). In their interlocutory application, the respondents sought an order pursuant to s 47A(1) of the Federal Court of Australia Act 1976 (Cth) that five Persons be permitted to give evidence at the hearing of these proceedings by way of audio-visual link. I decided that the respondents’ application should be allowed. I adjourned the interlocutory application and ordered that the respondents lodge with the Court draft minutes of order reflecting the conclusions in my reasons. The parties have lodged competing minutes of order.

2    The orders sought by the respondents are as follows:

1.    Pursuant to section 47A(1) of the Federal Court of Australia Act 1976 (Cth) the following persons be permitted to give evidence at the hearing of these proceedings by audio-visual link:

a)    Person 21;

b)    Person 62;

c)    Person 63;

d)    Person 64; and

e)    Person 65.

2.    The evidence of Person 21 is to be given via Cisco from the Australian Embassy in Timor-Leste.

3.    The evidence of Persons 62, 63, 64 and 65 is to be given via Cisco from the offices of Kakar Advocates LLC in Kabul, Afghanistan.

4.    The respondents are to arrange for an English/Pashto interpreter to be present in the courtroom in Sydney and at the offices of Kakar Advocates at the time that Persons 62, 63, 64 and 65 give evidence by audio-visual link.

5.    The respondents file and serve statements of the evidence in chief of Person 62, Person 63, Person 64 and Person 65, signed by those persons, by 14 May 2021.

6.    The Applicant is to pay the Respondents’ costs of the interlocutory application dated 11 February 2021.

3    Subject to one matter, there is, in effect, no dispute between the parties concerning Orders 1, 2 and 3. The one matter is that, unlike the respondents, the applicant advances orders which refer to the respondents having leave for testimony to be given by way of audio-visual link and the leave being subject to conditions. The respondents submit that framing an order under s 47A(1) in terms of a party being granted leave subject to conditions does not reflect the exercise of the power under s 47A(1) of the Federal Court of Australia Act. The Court directs or allows evidence to be given in a certain way. Section 47A(1) is in the following terms:

(1)    The Court or a Judge may, for the purposes of any proceeding, direct or allow testimony to be given by video link, audio link or other appropriate means.

Note:    See also section 47C.

4    Section 47C refers to conditions to be met, but they are conditions to be met before the exercise of the power. Section 47C(1) provides as follows:

(1)    The Court or a Judge must not exercise the power conferred by subsection 47A(1) or section 47B in relation to a video link unless the Court or the Judge is satisfied that the following conditions are met in relation to the video link:

…

5    There is force in the respondents’ submissions. At the same time, it is not inappropriate for the Court to record in its order the particular features which satisfy the necessary conditions. I do not need to reach a firm conclusion about the matter. I can adopt the form set out in the respondents’ minutes without prejudice to either party.

6    With respect to the presence of an interpreter in Sydney and an interpreter in the offices of Kakar Advocates LLC in Kabul, Afghanistan, the applicant put forward a proposal involving an order that one of the persons present in the hearing room in the offices of Kakar Advocates LLC be:

A person who can interpret the questions of Counsel or the Judge in Sydney to Person 62, Person 63, Person 64 and Person 65, who is appropriately qualified, independent and experienced, whose credentials as an interpreter are able to be verified and who is agreed to by the parties and present in the hearing room.

7    Furthermore, the applicant proposes the following additional order:

The evidence of Person 62, Person 63, Person 64 and Person 65 will be interpreted by an interpreter who is appropriately qualified, independent, experienced and whose credentials are able to be verified who is agreed to by the parties and present in the courtroom in Sydney.

8    The difference between the parties with respect to interpreters is that the respondents submit that I should not make an order now about the precise role of the interpreter in Sydney. I agree with the respondents that that is a matter that can be addressed either at trial or, at least, at a point prior to trial when all the circumstances are known. It is sufficient at this stage that, as the respondents’ orders provide, an interpreter be present in both locations.

9    In terms of the filing and service of statements of the evidence-in-chief of Person 62, Person 63, Person 64 and Person 65, the applicant sought an order that this be done by 7 May 2021. The respondents proposed the following compromise:

The respondents file and serve statements of the evidence in chief of Person 62 and Person 63, signed by those persons, by 7 May 2021 and statements of the evidence in chief of Person 64 and Person 65, signed by those persons, by 14 May 2021.

In my opinion, that compromise is an appropriate one and the order advanced by the respondents in paragraph 5 will be amended to reflect it.

10    The applicant opposes the order for costs sought by the respondents and submits that the appropriate order as to costs is an order that the costs of the application be costs in the cause in the substantive proceedings. The respondents submit that their order as to costs is appropriate because the application was opposed in, as the respondents put it, “the most vigorous and trenchant way possible”. They propose that, at the very least, the costs ought to be the respondents’ costs in the cause. It seems to me that the respondents were required to issue this application even if the applicant consented to it and they were required to bring forward the full details of their proposal in order to justify it. At the same time, the application was strongly opposed by the applicant. In my opinion, the appropriate order is that the costs of the respondents’ interlocutory application dated 11 February 2021 be the respondents’ costs in the cause. The respondents proposed order for costs in paragraph 6 will be amended accordingly.

11    As to the balance of the orders sought by the applicant, I think it is appropriate to make an order that the applicant be entitled to have in the hearing room in the offices of Kakar Advocates LLC at the time that Person 62, Person 63, Person 64 and Person 65 give evidence a lawyer appointed by him whose name will be provided to the Court. That would be the case if those persons were giving evidence in the courtroom in Sydney. I would not otherwise specify the persons who are in the hearing room in the offices of Kakar Advocates LLC. That is a matter that can be addressed at a time closer to the hearing.

12    I am not persuaded that it is necessary, or at least necessary at this stage, to make orders requiring the following: (1) a desktop view of the witness’ laptop or computer to be transmitted to and displayed in the courtroom in Sydney, as directed by the Court; (2) the evidence of each witness not be available to any other witness yet to give evidence on any medium including video, audio or transcripts; (3) documents to be shown to a witness will be made available as needed on a separate screen for viewing by the witness; and (4) pursuant to s 47E of the Act, a person who is to give testimony pursuant to Order 1 of these orders, be permitted to swear an oath or make an affirmation by audio-video link. Some of those orders may be appropriate, but they can be addressed closer to the time at which the evidence is to be given.

13    I am not persuaded that I should make an order (as sought by the applicant) that one week’s notice be given to the Court and the applicant of the time and date of the audio-visual conference to take the evidence of each of the witnesses. I do not see the need for such an order at this stage and I may, in fact, make an order for a longer period of notice in due course. Nor am I persuaded to make an order (as sought by the applicant) that the Court sitting times shall be observed in the course of a witness’ evidence, together with such other adjournments as are acceptable by the Court and the applicant. At this point, it seems to me to be desirable to maintain as much flexibility as possible. There seems to me no reason to make an order at this point that the respondents pay the costs of the provision of the audio-visual facility. As the respondents submit, they are incurring and paying those disbursements at this stage and, in due course, those disbursements will become costs of the proceedings. There is no need for the Court to make an order generally about costs at this point.

14    I am not persuaded that I should make an order (as sought by the applicant) that the respondents provide a video recording of the evidence of each of the witnesses to the Court and the applicant. The purpose of making such an order at this stage is not clear. Nor would I make an order (as sought by the applicant) that all witnesses give their evidence sitting at a plain desk. If an issue arises as to prompting or the use of material in giving evidence, then that can and will be dealt with at the commencement of or during the witness’ evidence. It is not necessary to make an order (as sought by the applicant) that the respondents arrange for a test run of the audio-visual links as set out in the orders. That should certainly be done, but I agree with the respondents that that can be organised with the registrars of the Court at a time that is appropriate to all concerned. Finally, I would not make an order (as sought by the applicant) that the respondents’ solicitors be responsible for taking all necessary steps to ensure that conditions imposed by the Court are met. Such an order is unnecessary and it is difficult to know what it achieves. The respondents will be responsible for ensuring that the terms of the orders are met and failing that, the relevant witnesses will not be permitted to give evidence pursuant to the orders.

15    In my opinion, the orders which should be made are as follows:

(1)    Pursuant to s 47A(1) of the Federal Court of Australia Act 1976 (Cth) the following persons be permitted to give evidence at the hearing of these proceedings by audio-visual link:

(a)    Person 21;

(b)    Person 62;

(c)    Person 63;

(d)    Person 64; and

(e)    Person 65.

(2)    The evidence of Person 21 be given via Cisco from the Australian Embassy in Timor-Leste.

(3)    The evidence of Person 62, Person 63, Person 64 and Person 65 be given via Cisco from the offices of Kakar Advocates LLC in Kabul, Afghanistan.

(4)    The respondents arrange for an English/Pashto interpreter to be present in the courtroom in Sydney and at the offices of Kakar Advocates LLC at the time that Person 62, Person 63, Person 64 and Person 65 give evidence by audio-visual link.

(5)    The applicant be entitled to have in the hearing room in the offices of Kakar Advocates LLC at the time that Person 62, Person 63, Person 64 and Person 65 give evidence a lawyer appointed by him whose name will be provided to the Court.

(6)    The respondents file and serve statements of the evidence-in-chief of Person 62 and Person 63, signed by those persons, by 7 May 2021 and statements of the evidence-in-chief of Person 64 and Person 65, signed by those persons, by 14 May 2021.

(7)    The costs of the respondents’ interlocutory application dated 11 February 2021 be the respondents’ costs in the cause.

Associate:    

Dated:    23 April 2021

SCHEDULE OF PARTIES