Federal Court of Australia

Palmer v McGowan (No 2) [2022] FCA 32

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by Mr McGowan on 24 January 2022 be dismissed.

2.    The hearing dates be varied as follows:

(a)    the listings on 31 January 2021 to 11 February 2022 (inclusive) be vacated;

(b)    the trial be listed to commence at 10:15am on 14 February 2021 and, subject to further order, continue until the conclusion of the hearing day on 17 February 2022; and

(c)    the trial then be listed to recommence at 9:30am on Saturday, 26 February 2022 and continue until 4:15pm that day and, subject to further order, then be listed to continue at 9:30am on Monday, 28 February 2022.

3.    The date for the filing of opening submissions be extended to 1 February 2022.

4.    The orders of White J made on 10 November and 11 December 2020 be varied so as to provide that the evidence-in-chief of Mr Palmer and Mr McGowan, insofar as it relates to alleged distress, upset and injury to feelings occasioned by any alleged defamatory publication, is to be adduced viva voce.

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

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

1    These are my reasons for making orders last Tuesday briefly deferring the commencement of a defamation case whereby a high profile businessman and one time (and aspiring) politician is suing a head of government, and the head of government, in response, is suing the businessman. Each proposes to give evidence. Given the nature of that evidence and the other bespoke circumstances of this case, if the claimant witnesses were butchers, bakers or candlestick makers (on the unrealistic premise they could afford defamation proceedings), I would hold the prima facie view that in order to determine the case justly, it would be best that their evidence be given in person: there is nothing about the identity of the present proposed witnesses that means a different course should be adopted. My preliminary view about the importance of evidence being adduced orally in this case has long been made clear during the course of case management hearings.

2    One party, Mr Palmer, asked to be treated differently because he was unvaccinated with a COVID-19 vaccine. That application was not pressed.

3    Then, a few days before the scheduled commencement of the trial, the other party, Mr McGowan, as the Member for Rockingham in the Legislative Assembly of Western Australia and the Premier and Treasurer of Western Australia, sought orders that he and Mr Quigley (the first law officer of Western Australia), be permitted to give evidence remotely by audio-visual link (AVL); or alternatively, that the trial be vacated.

4    Ultimately, the alternative orders sought in the interlocutory application were not pressed following a proposal I advanced to Senior Counsel for Mr McGowan, Mr Walker SC, during argument, that I was open to making procedural orders which would accommodate Mr McGowan and Mr Quigley attending Court on specific days next month. My reason for exercising this discretion to defer taking their evidence relates to privileges enjoyed by them solely by reason of their status as members of one of the Houses of the Parliament of Western Australia. Although the Premier and Attorney-General require some accommodation to ensure there is no fetter on them attending sittings of Parliament, to the extent possible, the orders I made on Tuesday recognise that these witnesses (like Mr Palmer) should be treated like any other witness expected to give evidence of the type anticipated. Neither party now presses a contrary position.

B    THE PROCEDURAL AND RECENT FACTUAL BACKGROUND

5    The present changes to the commencement and conduct of the hearing need to be seen in the context of the procedural history.

6    These proceedings were commenced as long ago as 19 August 2020. A cross-claim was filed on 17 September 2020. After a series of interlocutory disputes, the proceedings were allocated to my docket on 12 August 2021. The same day, I directed my Associate to advise the parties:

For a number of reasons (including hearing commitments in relation to other matters), it is necessary that his Honour has early clarity about fixing a hearing date in 2022. Accordingly, his Honour proposes to relist the matter for a case management hearing to be conducted at 2:15pm on Wednesday 18 August 2021 … At the case management hearing it would be his Honour’s intention to make all such interlocutory orders as are necessary to fix the matter for hearing …

(Emphasis in original).

7    To suit the convenience of counsel, that case management hearing was deferred until 20 August 2021, at which time I noted (at T16.12–18):

In relation to an in person hearing, if we are talking about clashes with parliamentary sitting times, it may be appropriate that in respect of the taking of Mr McGowan’s evidence, that I sit in the Perth Registry but otherwise it be in Sydney. My preference, of course, would be to sit in Sydney to hear all the evidence. But if that proves impractical because of Parliamentary commitments, then it may be that we do have to sit for part of the hearing in Perth …

8    I also noted (at 16.26–29):

I can see from a cross-examiner’s point of view why they might want to cross-examine in person. So … if it was possible to do it in person and the cross-examiner wished it to occur in person, then, that’s what I would do.

9    It was on 11 November 2021, when the issue as to whether Mr McGowan would give evidence in person resurfaced. At that case management hearing, when orders were being made, counsel for Mr McGowan explained (at 20.40–44):

… it may be that we make an application for Mr McGowan’s evidence to be remote. There hasn’t yet been a determination on the date that the Western Australian hard border will come down, so I will take some instructions, your Honour. But it may be that we make an application for Mr McGowan’s evidence [to be given] remotely.

10    I responded (at T20.45–T21.2):

All right. Well … when would you be in a position to make that application, do you think? It’s just that I have very limited availability between now and Christmas …

11    Then, counsel for Mr McGowan responded (at T21.4–6):

I’m told that my instructor will speak to Mr McGowan today, so we should [know] more hopefully by tomorrow at the latest, and then we can inform your Honour and my learned friend whether that application is to be made.

12    I then referred to a case I had decided in April 2020, when the first applications were being made to adjourn hearings because of the emerging COVID-19 pandemic. In Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504, I refused an adjournment of a highly complex trial (which ultimately led to an 868 page judgment) because in-person evidence could not be received. In the course of doing so (at [25]), I made reference to the fact that although the process of receiving evidence and submissions remotely was sub-optimal, it was not impaired to such an extent that I considered there was anything second-rate about my experiences to that time in conducting hearings remotely. I also referred (at [7]) to Voltaire’s observation that one must ensure the perfect does not become the enemy of the good. By November last year, I had vastly more experience with the conduct of remote hearings, and the following exchange then occurred (at T21.33–44):

HIS HONOUR: Well, I must say – and I have said this in relation to all the matters that I’m currently hearing from the beginning of December – that I want to go back to having trials in the usual way. And even this morning, one sees the difficulties that is occasioned by [remote hearings] – I wrote a judgment [at the] beginning of [all] this saying we can’t let the perfect be the enemy of the good, and we had to … proceed along a certain path while it was necessary to do so, but it is suboptimal. And the accumulated experience of the court, at least in my view, is that it does make – it does have a subtle influence, it seems to me, on the way which one picks up from both advocates and also witnesses what is material. But in any event, of course, I will deal with any applications that either side wishes to make on their merits.

[COUNSEL FOR MR McGOWAN]: Your Honour, we … certainly understand the benefit of an in-person hearing. In my submission, the counterargument would be where there would be requirements on Mr McGowan and, as I understand it, for quarantine upon return to their home jurisdictions – whether in those circumstances AVL is a preferable course. But I certainly understand your Honour’s preference.

13    No application was then made.

14    What then happened, was that at a case management hearing held on 3 December 2021, the following exchange took place with Senior Counsel for Mr Palmer, Mr Gray SC, as follows (at T3.9–T4.24):

MR GRAY: … my client seeks an order that he be permitted to give evidence at the trial by audio-visual link. …

…

HIS HONOUR: … My firm preliminary view in relation to giving evidence by way of video link is that, like every other litigant in the [court], particularly parties, [and] particularly in defamation cases, [they] should come along and give evidence in person. And I think that’s important for a range of reasons, including my best assessment of matters such as subjective hurt and the like. So unless there is some compelling reason to depart from that course, then I would expect all witnesses to give evidence in person …

I did say in an early judgment in relation to this – in fact, I think it was the first or second judgment in relation to audio-visual links in these cases, that we can’t let the perfect be the enemy of the good. And accordingly, if we have to have trials by the use of Microsoft Teams technology, then we have to have trials by the use of Microsoft Teams technology. But it is suboptimal. And the longer it has gone on, the more – I was an early adopter and relatively enthusiastic initially. But as time goes on, I’ve started to become more aware of, at least from my perception, the limitations of it. If we have to do it, then – if there’s some, God forbid, deus ex machina event between now and January, then I will revisit it. But otherwise, I would expect evidence to be given in person.

MR GRAY: Your Honour, the short point – if I can just - - -

HIS HONOUR: Sure. Yes, yes, yes.

MR GRAY: If this hasn’t been made clear - - -

HIS HONOUR: By all means, seek to persuade me.

MR GRAY: There is only one reason that my client seeks this direction, and that is that he is not vaccinated, as he has said publicly. And my understanding is, subject to correction, that the protocols that the court – that this court adopts – I don’t mean only your Honour – are that to come into the courtroom, one needs to be vaccinated.

HIS HONOUR: No. That’s not right.

MR GRAY: Well, if I’m wrong about - - -

HIS HONOUR: I’m certainly not going to deny anyone access to my courtroom because of their vaccination status. There was a recent view taken that subject to the discretion of the judge, then that would not be a bar on people coming into the building and giving evidence.

MR GRAY: Well, in that case, your Honour - - -

HIS HONOUR: Yes.

MR GRAY: - - - as far as I presently understand my instructions, I don’t need to take the point further.

15    The evidence reveals that there were then two developments: one expected, and one unexpected.

16    The first was the fixing of the Parliamentary sitting days for 2022. Relevantly, the Legislative Assembly is sitting in February this year for six days, being 15, 16, 17, 22, 23 and 24 February.

17    The second was the announcement by Mr McGowan, last Thursday, 20 January 2022, of a postponing of the anticipated relaxation of the “hard border” controls relating to entry into Western Australia from 5 February 2022.

18    Relevantly, unless changed, these arrangements mean that if Mr McGowan and Mr Quigley attend Court and give evidence in the so-called “Extreme Risk” jurisdiction of New South Wales then, as “approved travellers”, they could return to Western Australia. But upon their return, they could be directed by a police officer of the rank of Senior Sergeant or above to either: (a) undertake hotel quarantine in a government approved facility; (b) comply with a modified quarantine regime; or (c) comply with what are described as “government official requirements”, which would allow Mr McGowan and Mr Quigley to “self-quarantine” in suitable premises and leave those premises throughout the quarantine period where it was necessary for them to “perform official duties or functions” in connexion with their positions: see the Outbreak Outside of Western Australia Response Directions (No 19) made by the State Emergency Coordinator pursuant to the Emergency Management Act 2005 (WA), Nos 28 and 29).

19    Mr McGowan gave evidence on these applications that:

… I believe that if I were to fly to Sydney to attend the trial of this matter I would be required to undertake 14 days of self-quarantine upon my return to Western Australia subject to the possibility that the directions ultimately executed by the State Emergency Coordinator confer a discretion on WA Police (or some other body) to permit me to leave my home to attend to my official duties …, that I applied for such an exemption and that any such discretion were exercised in my favour.

Even if, at the time I re-entered Western Australia, such a mechanism existed by which I could apply to be permitted to attend Parliament during the 14 day quarantine period, I would not apply for such permission. This is because, given the high number of COVID cases in New South Wales, I consider the risk of inadvertently transmitting the virus to someone in Parliament is too high and the consequences of an outbreak in Parliament would be severe. Depending on what the relevant directions in force at the time provide, there may also be a risk that people I came into contact with would be required to isolate (as is the case under the current regime …). Finally, I would not want to seek to be the subject of conditions different to those that apply to any other Western Australian.

20    Given the interlocutory application was not ultimately pressed, it is unnecessary for me to express any views, one way or another, about the evidence given on the application.

21    I should add, however, that notwithstanding it is a matter of record that other bicameral or unicameral Westminster-style Parliaments have put in place procedures or changes to standing orders or other reforms to allow for remote participation in parliamentary proceedings generally or in committees (such as at the Commonwealth level in Australia, and in the United Kingdom, Canada, New Zealand, and also in New South Wales and Victoria), the Legislative Assembly of Western Australia does not presently allow nor have the capability for members to participate remotely.

22    It was against this background that the application identified above was made by Mr McGowan on his own behalf and on behalf of the Attorney General. Until no longer pressed, the application was based on two broad contentions. The first was that giving evidence in Sydney would impair or prejudice the efficient conduct of their public roles; and the second was that giving evidence in Sydney would impair their ability to attend to their parliamentary responsibilities. I indicated at the outset of argument that I needed no persuasion in accepting the proposition that any discretions I exercised should take account of the privileges enjoyed by the Premier and Attorney-General, as members of a House of Parliament, to attend to their parliamentary duties. It is worth briefly explaining why.

C    THE NEED FOR THE Trial TO ACCOMMODATE THE SITTINGS

23    In the Westminster system of parliamentary government, the term “parliamentary privilege” refers, in part, to the privileges or immunities of the houses of Parliament which exist both at common law and, in some jurisdictions, by statute. The rationale of these privileges and immunities is to enable, or better enable, the houses of the Parliament to carry out effectively their functions to inquire, debate and legislate.

24    The best known and principal immunity is, of course, the freedom of parliamentary debates and proceedings from question and impeachment in the courts. Even before the so-called “Glorious” Revolution, the houses of Parliament asserted this parliamentary immunity in the course of proceedings before the courts (which obtained statutory force by Art 9 of the Bill of Rights 1689). Similarly, in order to safeguard attendance during parliamentary sittings, since 1340, there has been assertion of a privilege by the House of Commons of a freedom from arrest (at a time when the King released a Member of the Commons from prison because he had been prevented, by his arrest, from taking his seat): see Boulton C J (ed), Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament (21st ed, Butterworths, 1989) (Erskine May) (at p 74).

25    The Parliamentary Privileges Act 1891 (WA) relevantly provides, by s 1, that the Legislative Assembly and its members have and “may exercise” the “privileges, immunities and powers by custom, statute or otherwise of the Commons House of Parliament of the United Kingdom and its members … as at 1 January 1989”.

26    One of the privileges enjoyed by members of the House of Commons at the beginning of the tenth year of the Thatcher government was a privilege, which had then been established for at least three centuries (and described by Erskine May as related to the freedom from arrest), which prevented compulsory process issuing ordering attendance before a court when such attendance was ordered when Parliament is sitting: see Erskine May (at p 100).

27    Recognising the central importance of these privileges, and the deference that a court pays to them, s 10 of the Evidence Act 1995 (Cth) (EA) provides that the EA does not affect the law relating to the privileges of any Australian Parliament or any House of any Australian Parliament; and s 15 of the EA provides that like the special positions of the Sovereign and Her representatives, or of a foreign Head of State, a member of a House of an Australian Parliament is not compellable to give evidence if the member would, if compelled to give evidence, be prevented from attending a sitting of that House or a meeting of a Parliamentary committee of which he or she is a member.

28    Of course, in the present case, there is no compulsory process nor is there an attempt to compel a witness to give evidence on a sitting day. Mr McGowan is a party and anticipates giving evidence in his own case (that is, his defence case to Mr Palmer’s claim and in his case in chief on his cross-claim). He also proposes to rely upon the evidence given voluntarily by Mr Quigley. I have not, of course, made any order that Mr McGowan or Mr Quigley attend Court in Sydney (nor would it be appropriate to do so, absent application for the issue of a subpoena by a party).

29    It should be observed that given the way that the issue has been joined on the claim of both Mr Palmer and Mr McGowan, there is a theoretical possibility that neither Mr McGowan nor Mr Quigley would be required to give evidence. All imputations pleaded are contested. If found by a separate determination not to be conveyed, then there would be no defence case on Mr Palmer’s claim and the claim of Mr McGowan for defamation would fail because his pleaded meanings had not been conveyed. Having said this, I regard the prospect of Mr McGowan and Mr Quigley not being called to give evidence as vanishingly remote. This is for a variety of reasons, which are unnecessary to detail for present purposes. In those circumstances it seems to me that conformably with the necessity not to intrude upon the privileges enjoyed by members of the Legislative Assembly, I should make orders which ensure that Mr McGowan’s and Mr Quigley’s evidence is given at a time which does not interfere with their ability to attend sittings. Given the orders sought in the interlocutory application were not pressed, it is unnecessary to say anything about the other basis for the application.

D     WHY IN PERSON EVIDENCE IS NECESSARY IN THIS CASE

30    One of the reasons why the Court has been able to adapt so readily to the challenges presented by the pandemic, is that AVL technology has been in use in the Court for many years and, in an antevirus world, a series of cases had established that its use in a hearing was a matter for the primary judge’s discretion to be exercised in accordance with the singular circumstances of a case.

31    As Professor Michael Legg and Anthony Song explain in their useful article, “The Courts, the Remote Hearing and the Pandemic: From Action to Reflection” (2021) 44(1) UNSWLJ 6, post-pandemic, courts around the world rapidly shifted to remote hearings. Indeed, “balancing public health directives with the need to continue upholding the rule of law, what followed has been the largest, unforeseen mass-pilot of remote hearings across the world”.

32    What is envisaged is not, of course, a remote hearing, but the lessons learned over the last two years of remote hearings have accelerated and vastly increased the experience of judges in taking evidence by video.

33    In this defamation case, a judge is the tribunal of fact. Section 47(3) of the Federal Court of Australia Act 1976 (Cth) (FCAA) provides that at a trial of a proceeding the Court may at any time, for sufficient reason and on such conditions as are necessary in the interests of justice, direct or allow proof by affidavit to such extent as the Court thinks fit.

34    In this case, on 10 November 2020, orders were made by White J in the following terms:

8.    Subject to any further order of the Court, the evidence in chief to be adduced at trial by [Mr Palmer] in support of the application and in support of those matters pleaded in the defence to the cross-claim on which [Mr McGowan] bears the onus of proof is to be adduced by way of affidavit.

9.    The affidavits containing the evidence in chief referred to in the preceding order are to be filed and served by 29 January 2021.

10.    The manner in which the evidence of [Mr McGowan] is to be lead will be the subject of further orders at a future case management hearing.

35    On 11 December 2020, his Honour made the following orders:

4.    The evidence-in-chief to be adduced at trial by [Mr McGowan] in defence of the application and in support of the cross-claim is to be adduced by way of affidavit.

5.    The affidavits of [Mr McGowan] referred to in the previous order are to be filed and served by 26 March 2021.

36    Affidavits-in-chief have been served by both claimants and hence the evidence in chief of both Mr Palmer and Mr McGowan will be adduced by way of reading their affidavit. This is subject, however, to the indication I made when I took over the case management of this case, which is consistent with my usual practice and which I will formalise by way of an order, that any evidence relevant to the alleged distress, upset and injury to feelings occasioned by the defamatory publication by either claimant is to be adduced in chief orally.

37    As will no doubt already be obvious, each claimant and Mr Quigley are to be cross-examined. Subject to an order being made under s 47A, this testimony at the trial “shall be given orally in court”: see s 47(6).

38    Section 47A(1) relevantly provides that the Court may “direct or allow testimony to be given by video link, audio link or other appropriate means”. There is little gained by any discussion of earlier cases applying this section (which was introduced in 2002) and its predecessor (in relatively identical terms, being s 47(1A)). Many of the earlier cases, which often turn on their own facts, reflect a wariness of video evidence at a time when the technology was less secure and reliable. It is sufficient to note that as Perram J observed in Capic v Ford Motor Company of Australia Ltd (Adjournment) [2020] FCA 486 (at [19]):

… there are many authorities in this Court which underscore the unsatisfactory nature of cross-examination by video-link: see, eg, Hanson-Young v Leyonhjelm (No 3)  [2019] FCA 645  at [2]; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3)  [2009] FCA 1306; 181 FCR 152  at 171 [78]. However, those statements were not made in the present climate, nor were they made with the benefit of seeing cross-examination on platforms such as Microsoft Teams, Zoom or Webex. My impression of those platforms has been that I am staring at the witness from about one metre away and my perception of the witness’s facial expressions is much greater than it is in Court. What is different — and significant — is that the video-link technology tends to reduce the chemistry which may develop between counsel and the witness. This is allied with the general sense that there has been a reduction in formality in the proceedings. This is certainly so and is undesirable. To those problems may be added the difficulties that can arise when dealing with objections.

39    See also the similar comments of Jackson J in Australian Securities and Investments Commission v Wilson (No 2) [2021] FCA 808; (2021) 153 ACSR 649 (at 662 [44]), that the Court now has more experience with taking contentious evidence by video link and more confidence in its efficacy.

40    In some cases it has been suggested that provided the pre-conditions set out in s 47C are established, which relate the technical sufficiency of the link (and are not presently in issue), the discretion to make an order allowing for remote testimony is at large. This is not now strictly accurate by reason of the introduction of Pt VB of the FCAA. In particular, s 37M(3) provides that any civil practice and procedure provision (which includes s 47A) must be interpreted and applied, and any power conferred by the provision must be exercised or carried out, in a way that best promotes the overarching purpose. In accordance with the dictates of s 37M(1) of the FCAA, the overarching purpose is, of course, the facilitation of the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Although expressed somewhat differently, this is consistent with the remarks made by Flick J in Corrigan v Commvault Systems (Australia) Pty Ltd [2011] FCA 107; (2011) 192 FCR 71 (at 75 [12]) and Besanko J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 627; (2015) 231 FCR 531 (at 537–538 [16]), that: (a) it is for the party seeking the favourable exercise of the discretion to establish the reason for its exercise having regard to the specific facts and circumstances and the overriding consideration of ensuring that justice is done as between the parties to the proceeding; and (b) there is no presumption nor prima facie case as to the way in which the discretion is to be exercised in the absence of countervailing considerations.

41    I readily accept that it would have been be quicker, less expensive and more efficient for the evidence of Mr McGowan and Mr Quigley (and Mr Palmer for that matter) to be given by way of video link. The reason for my indication at case management hearings that I was not disposed to take this course is because I did not consider such a course would be consistent with the interests of justice or, to put it in the terms of the overarching purpose, would be the course which best facilitates the just resolution of this case according to law. Although I indicated I was open to persuasion, as I have noted, no application by either party to give evidence by video link is now pressed.

42    But it is worth explaining my preliminary view because it is the critical factor informing the orders I have now made. It was reached for two reasons. The first is that consistently with the view that I have formed in other cases, I will be best assisted by assessing the evidence as to hurt to feelings by closely observing the claimants giving that evidence, not only orally but also in close physical proximity. The second is the likely central importance of cross-examination to the determination of the facts-in-issue in this case.

43    Not only does receiving the evidence of the witnesses in person maintain fluidity between the witness, counsel and the judge, but there is much to be said about a witness coming into the usually unfamiliar confines of a courtroom, swearing an oath or taking an affirmation in a witness box to tell the truth, and proceeding to give evidence on oath or affirmation in the physical presence of counsel and the judge. There is a solemnity about the giving of evidence, and the formalities reinforce it.

44    In taking this view I am cognisant of the fact that a number of judges of this Court, including me, in cases such as ASIC v GetSwift (at [33]), Tetley v Goldmate Group Pty Ltd [2020] FCA 913 (at [16] per Bromberg J), Auken Animal Husbandry Pty Ltd v 3rd Solution Investment Pty Ltd [2020] FCA 1153; (2020) 147 ACSR 521 (at 530 [49] per Stewart J), and Universal Publishing Music Pty Ltd v Palmer [2020] FCA 1472 (at [32] per Katzmann J), have expressed a degree of satisfaction and indeed enthusiasm as to the receipt of evidence at remote hearings, even in cases where credit is in issue. In many cases it is highly suitable for hearings to be conducted remotely. There have been less enthusiastic views expressed, but it is noteworthy that a number of the particularly favourable references to remote hearings in complex cases were made in 2020, at an early stage of the “unforeseen mass-pilot of remote hearings”. At least as far as I am concerned (and I am aware my view is not unique), accumulated experience and subsequent reflection has caused views of at least some to evolve. Most relevantly, my view is no longer the same as it was before the experience of the last twenty months or so.

45    In relation to many witnesses, including highly intelligent professionals, I have come to appreciate a somewhat different dynamic between the witness and the cross-examiner than is present at an orthodox hearing. Speaking generally, the witness feels an additional degree of comfort in being physically remote from the courtroom and being in their own surroundings. Incidentally, a tell-tale indication of this more “relaxed” environment is often seen by witnesses being far more casually attired than would be the case if they came into Court. This might be termed the “leisure wear” effect. Further, as much as courts seeks to reproduce the solemnity of a traditional hearing while operating online, at least in my experience, there a distinct difference in atmosphere. It is jejune to assume that exchanges (which may include confrontational exchanges) between two persons in close physical proximity to one another, is the same as exchanges that occur in the less intimate world of a video link.

46    Related to this point, is that increasingly I have felt a nagging disquiet that I may perhaps be missing something in assessing the evidence of a witness by reference to the tone of voice or non-verbal signals. As time has gone on, it is has become more evident to me that in an audio-visual feed, minor differences in emphasis or tone can be more difficult to appreciate and assess.

47    It has, of course, become common for scepticism to be expressed about the advantage that trial judges enjoy in seeing a witness give evidence. But despite these well-founded criticisms and the fact that by video a judge can observe the manner of giving evidence remotely, based on my experience in recent times, I consider I have a better prospect of understanding the subtleties and nuances of the sort of evidence to be given in the present case, if it is given in person. Credit is likely to be a factor in resolving at least some issues in this case. It is unnecessary to be more specific for present purposes, but I cannot discount the possibility that in this case (and these assessments are always case-specific) the close and careful assessment of the evidence-in-chief may be relevant in properly fixing any award of damages to either claimant based on consolation for hurt, and evidence given in cross-examination may be an important factor which assists me in justly determining this controversy.

E    THE DEFERRAL ORDERS

48    As noted above, the reason I proposed the split in the taking of the evidence in this case is that I recognise that the Court should not impair Mr McGowan and Mr Quigley attending a sitting of the Legislative Assembly. In reaching this conclusion, I express no view, one way or another, on their evidence adduced on this application as to subjective perceptions of risk or their future intentions, but I accept the practical effect of that evidence is that they consider they cannot attend a sitting of the Legislative Assembly within 14 days of their return to Western Australia.

49    The fact that there are two cases for defamation being heard together means that there is a departure from the norm in this case. Both parties agree that it would be inappropriate that the claimants be subjected to cross-examination twice. Hence any evidence that Mr Palmer gives and is cross-examined upon will be relevant to the determination of the issues on both the application and the cross-claim. The same position applies in relation to Mr McGowan.

50    To alleviate any impairment on Mr McGowan’s and Mr Quigley’s parliamentary duties, when the trial has reached the stage where it can no longer proceed without their physical involvement, the hearing will be adjourned until 9:30am on Saturday, 26 February 2022. On that day, I will receive the evidence of Mr McGowan and Mr Quigley and will proceed to sit, to the extent necessary, until 28 February 2022 (including extended times as necessary) for their evidence to be completed. Senior Counsel for Mr Palmer expects that only two sitting days will be necessary. If that is the case, it will avoid any necessity to sit on a Sunday. What matters is that if the witnesses return to Western Australia on the evening of 28 February 2022, it is accepted they would have a sufficient period by which they could quarantine for 14 days until the next sitting of the Legislative Assembly on 15 March 2022.

51    Both parties recognised that it would be better if as little time as possible elapsed between the Court hearing the evidence adduced by Mr Palmer and that of Mr McGowan. I agree. In these circumstances, I determined, with the consent of the parties, to start of hearing a fortnight later than originally fixed.

52    It was for these reasons I made the case management orders of last Tuesday. The interlocutory application of Mr McGowan was not only filed but was moved upon, and even though the prayers for relief were not ultimately pressed, for the sake of the Court record I considered it preferable to make an order the interlocutory application be dismissed.

Associate:

Dated:    27 January 2022