Federal Court of Australia

Tredders Investments Pty Ltd as trustee for Warren Tredrea Trust v Channel 9 South Australia (No 2) [2023] FCA 698

ORDERS

THE COURT ORDERS THAT:

1.    The applicants’ interlocutory application filed on 5 June 2023 be stood over to a date to be advised.

2.    The proceeding be listed for case management on a date to be advised.

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

REASONS FOR JUDGMENT

KENNETT J

1    The first applicant is the company through which the second applicant provided services, pursuant to an agreement dated 31 August 2020, to the respondent. Broadly, the second applicant worked as a sports commentator and studio host.

2    In October 2021 the respondent gave a direction to the effect that, for the second applicant to attend any of its workplaces after 1 December 2021, he would need to provide evidence that he was vaccinated against COVID-19. It was a term of the services agreement that the second applicant must comply with any “reasonable direction” given to him by the respondent. It was also a term of the agreement that the respondent was entitled to terminate the agreement for non-compliance with a “lawful direction” given by it.

3    The second applicant had taken a public stance against requirements that people be vaccinated for COVID-19 and did not wish to be vaccinated. He did not comply with the direction. On 4 January 2022 the service agreement was terminated.

4    In this proceeding the applicants seek to establish that the termination of the agreement was not authorised (and was thus a repudiation of the contract) or that it was unfair or harsh within the meaning of the Independent Contractors Act 2006 (Cth). These questions turn, in substance, on whether the direction that the respondent gave was a reasonable one.

5    The applicants plead in their statement of claim at [17] that the direction was not reasonable on the basis of a series of propositions relating to the nature and virulence of the COVID-19 virus and the efficacy and safety of the available vaccines and other measures to reduce the risk of transmission of the virus. That is, put broadly, they allege that the direction was not reasonable by reference to what they say is the correct understanding of the COVID-19 virus in its various strains and the correct understanding of the performance of the various vaccines (including the risk of adverse effects from receiving them).

6    In its defence, the respondent denies what is alleged in [17]. However, rather than directly rebut the various propositions concerning medical science, the sub-paragraphs of the corresponding paragraph in the defence:

(a)    say that matters postdating the direction are irrelevant;

(b)    say (in short) that the direction was reasonable in the light of circumstance and knowledge existing at the time; and

(c)    say that the respondent otherwise does not know and cannot admit the contents of [17].

7    The parties have served expert reports on each other. The applicants intend to rely on two reports by Professor Nikolai Petrovsky. The respondent intends to rely on a report by Associate Professor Paul Griffin.

8    The questions upon which each expert was asked to opine reflect the approaches to the case that are evident in the parties’ pleadings. Professor Petrovsky was asked to answer a series of questions concerning the nature and virulence of various strains of the COVID-19 virus, the efficacy of the available vaccines and risks associated with them. Associate Professor Griffin was asked six questions concerning prevailing medical opinion in Australia between November 2021 and January 2022.

9    However, Associate Professor Griffin was also asked in general terms to respond to Professor Petrovsky’s further report. In addition, perusal of the body of Associate Professor Griffin’s report reveals that he did not confine himself closely to the questions he was asked. His report refers to many studies that were published after January 2022 and in several places expresses views, from the point of view of the present day, on both the merits of the issues and the state of medical opinion.

10    The applicants have filed an application under r 23.15 of the Federal Court Rules 2011 (Cth) (the Rules) seeking orders for the two experts to give their oral evidence concurrently. It is that application that is currently before me.

11    It is uncontroversial that s 37M of the Federal Court of Australia Act 1976 (Cth) requires the decision whether to make such orders to be made in the way that best promotes the “overarching purpose” of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

12    The benefits of concurrent evidence, where experts give evidence on the same or overlapping questions, are well understood. Orders can be and usually are made for the experts to confer beforehand and produce a short document setting out the matters on which they agree and disagree (in the present case Mr Ower KC, who appeared for the applicants, provided short minutes seeking orders broadly of this kind and accepted that the bare order sought in the interlocutory application itself was insufficient). By giving their oral evidence concurrently, the experts proceed on the same factual assumptions, are effectively asked the same questions, and can respond directly to each other. Genuine dialogue is facilitated and the experts are enabled to provide proper assistance to the court, rather than having their evidence guided or even corralled by cross-examiners.

13    The complicating factor in the present case is the parties’ widely divergent approaches to the relevance of the matters canvassed in the expert reports. Although the respondent has formally denied, and thus taken issue with, the propositions concerning COVID-19 and vaccination in [17] of the statement of claim, its case is that those propositions are irrelevant to whether or not the direction that it gave in October 2021 was a reasonable one. It says that reasonableness can only be assessed by reference to what the respondent knew or should have known at that time, including (but not limited to) the medical advice that was then available. In my view there is considerable force in this submission, although the point will need to be more fully argued.

14    As it was explained to me by Mr Roberts KC for the respondent, if the experts give their evidence sequentially, he will be able to make a forensic decision concerning the extent to which Professor Petrovsky is cross-examined and may choose not to engage with aspects of the report that he submits are irrelevant. If the experts give evidence concurrently, Associate Professor Griffin will likely be asked about those issues and Professor Petrovsky will then have an opportunity to respond, thereby amplifying and adding to what is said in his report. It was submitted that this would cause prejudice to the respondent, distort the fact finding process, and vastly complicate the task of deciding which aspects of the expert evidence should or should not be taken into account.

15    To a large extent these concerns can be dealt with by directions limiting the topics on which the evidence is to be given concurrently, although that would mean that each expert would also need to be cross-examined separately and might therefore take up more time.

16    More significantly, Mr Roberts’ submissions concerning the effect of having the experts give concurrent evidence assumed that the question concerning whether the propositions in [17] of the statement of claim concerning the nature of COVID-19 and the pluses and minuses of vaccination would be decided after the experts had given their evidence rather than before. Why that assumption should be made is not apparent. As presently advised, I think there is much to be said for hearing argument at (or before) the beginning of the trial concerning whether the propositions at [17] of the statement of claim are relevant to the reasonableness of the direction given by the respondent and deciding that issue immediately. This could potentially be achieved by an objection to some or all of Professor Petrovsky’s reports, or by formulating and deciding a separate question under r 30.01(1) of the Rules (noting that sub-r (2) would need to be dispensed with under r 1.34). The benefits of proceeding in that way include potentially shortening the hearing, and allowing counsel to plan their cross-examination of the experts on the basis of a settled understanding of what issues are and are not in play. Mr Ower’s submissions appeared to envisage that an approach of this kind might be taken, while Mr Roberts appeared supportive of such an approach.

17    Counsel and their instructors should give consideration to, and confer with each other about, the issue that I have raised in the previous paragraph. For the time being, I will stand over the application for concurrent evidence to a date to be advised. The pros and cons of concurrent expert evidence cannot be properly assessed until it is known what aspects of their reports are to be before the Court. I will also list the proceeding generally for case management on a date to be advised, so that the parties can address the Court further as to whether (and by what procedure) the legal issue I have mentioned above should be determined as a threshold question.

Associate:

Dated:    26 June 2023