Federal Court of Australia

Joy v UGL Operations and Maintenance Pty Limited (No 3) [2024] FCA 279

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application for recusal filed 22 December 2023 be dismissed.

2.    Costs be reserved.

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

ORDERS

THE COURT ORDERS THAT:

1.    The Registrar be directed to remove from the Court file the applicant’s interlocutory application for recusal filed 22 December 2023 and his affidavit in support sworn 27 December 2023 and filed 28 December 2023.

2.    By 4.30pm (AWST) on 1 April 2024, the respondent file and serve an affidavit stating whether any document containing the ‘feedback’ referred to in paragraph 3h of the letter from the respondent to the Australian Human Rights Commission dated 9 November 2020 is or has been in the respondent’s control and, if any such document has been but is no longer in the respondent’s control, when it was last in the respondent’s control and what became of it, and, otherwise, the applicant’s interlocutory application filed 7 December 2023 for certain orders relating to discovery be dismissed.

3.    The applicant’s interlocutory application for orders allowing the applicant to appear and make submissions and give testimony via video link, audio link or other appropriate means be dismissed.

4.    The costs of the interlocutory applications be reserved.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    The applicant seeks relief against the respondent for alleged unlawful discrimination under the provisions of the Australian Human Rights Commission Act 1986 (Cth) and the Racial Discrimination Act 1975 (Cth). The originating application has been listed for final hearing on 16, 17 and 18 April 2024. The matter was listed for a case management hearing on 13 March 2024. Before that hearing the applicant made interlocutory applications for: (1) orders allowing him to appear, make submissions and give evidence at the final hearing via video link, audio link or other appropriate means; (2) for orders requiring the respondent to give discovery of certain documents or categories of documents; and (3) for me to recuse myself on the grounds of actual or apprehended bias. All three applications were heard on 13 March 2024.

2    On 13 March 2024 I made an order dismissing the application for recusal and said that I would provide my reasons for so doing later. These reasons include my reasons for dismissing that application. I have also determined that the interlocutory application and affidavit should be removed from the Court file due to the baseless and scandalous nature of the assertions contained in those documents. My reasons for directing the removal of that material are also included in these reasons.

3    On 13 March 2024 I reserved my decision on the other interlocutory applications. For the reasons that follow, there will be an order to the effect that the respondent give particular discovery of any document(s) containing ‘feedback’ referred to in para 3h of a letter from the respondent to the Australian Human Rights Commission dated 9 November 2020 and otherwise the application relating to discovery will be dismissed. The application for orders allowing the applicant to appear, make submissions and give testimony remotely will be dismissed. I will hear the parties on the question of costs.

Background

4    To understand the context in which the application for recusal was made and the reasons that is baseless and must be dismissed, it is necessary to set out the relevant background to the three interlocutory applications heard on 13 March 2024.

5    On 21 October 2021 McKerracher J made orders striking out parts of the applicant’s statement of claim and granting him leave to amend his statement of claim in conformity with his Honour’s reasons for decision: Joy v UGL Operations and Maintenance Pty Limited [2021] FCA 1282.

6    Subsequently, the respondent made an interlocutory application by which it sought summary dismissal of the applicant’s originating process. On 14 September 2022 I made orders dismissing that application: Joy v UGL Operations and Maintenance Pty Limited (No 2) [2022] FCA 1086.

7    On 28 April 2023 the applicant filed an interlocutory application by which he requested leave to amend his statement of claim. The respondent opposed that application. At a case management hearing on 31 May 2023 the hearing of that that application was adjourned to a date to be fixed and has not been heard. In the meantime, given the difficulty that self-represented litigants frequently encounter drafting pleadings in conformity with the strict requirements of Pt 16 of the Federal Court Rules 2011 (Cth), I made case management orders that had the effect of modifying the manner in which the issues are to be determined in the proceedings so as to avoid further dispute concerning the form of the applicant’s pleadings. The issues are to be determined from lists of issues that each of the parties is to file and serve. Further, the parties are to file and serve affidavits and lists of the documents upon which they intend relying at trial. As a consequence, the issues and the evidence upon which each party intends relying at trial has been or will be identified well in advance of the trial and the parties will know the cases that they must meet at trial. In these circumstances, having regard to the overarching purpose of the civil practice and procedure provisions referred to in s 37M of the Federal Court of Australia Act 1976 (Cth), I have not considered it necessary to re-list and determine the application for leave to amend the statement of claim. Through this modified approach the applicant has been (or will be) permitted to raise the all the issues he wanted to and was permitted to raise in his proposed amended statement of claim in conformity with the leave to amend McKerracher J granted on 21 October 2021.

8    On 16 August 2023 the applicant filed an interlocutory application for further and better discovery. The respondent opposed that application. After a contested hearing on 11 October 2023, I made orders in the following terms by which, in effect, the respondent was required to give particular discovery of certain categories of document directly relevant to the issues in the proceedings.

1.    By 30 November 2023 the respondent comply with paragraph 1 of the orders of the Court of 1 March 2023 (give standard discovery in accordance with rule 20.14 of the Federal Court Rules 2011 (Cth)) by filing and serving a list of documents that is in accordance with rules 20.16 and 20.17 and verified by an affidavit sworn or affirmed in accordance with rule 20.22 with such standard discovery to include:

(a)    the document or documents referred to as the ‘BP review from 2012’ in an email from Mr Ronan Boothman, of the respondent’s solicitors, to the applicant dated 26 April 2023;

(b)    the document or documents referred to as the ‘VOC document’ in an email from Ms Kat Ether, of the respondent, to the applicant dated 26 April 2021 or ‘verification of competency document’ in the email from Mr Boothman to the applicant dated 26 April 2023;

(c)    all documents referred to, exhibited to, or relied upon as the source of the facts stated in the affidavits of Mr Peter Radich affirmed 15 September 2023 and Mr Terence Elliott affirmed 15 September 2023, including without limitation, any ‘Ranking Spreadsheet’ of the kind referred to in paragraph 9 of Mr Elliott’s affidavit that refers to the applicant, the ‘business records’ to which Mr Elliott refers in paragraphs 19 and 23 of his affidavit and any document that formed informed the statements of fact characterised as based on inquiries in paragraphs 36, 39, 42 and 45 of Mr Elliott’s affidavit; and

(d)    the documents listed in part 2 of the list verified by the affidavit of Ms Enza Chevel sworn 31 March 2023 (documents in the control of the respondent for which privilege from production is claimed) as documents listed in part 1 of the list (documents in the control of the respondent).

2.    To the extent not included in the standard discovery given in compliance with paragraph 1 of these orders, by 30 November 2023, the respondent give discovery of the following categories of documents by filing and serving a list of documents that is in accordance with rules 20.16 and 20.17 and verified by an affidavit sworn or affirmed in accordance with rule 20.22:

(a)    documents identifying persons who the respondent had engaged to perform work on the Jimblebar project who were demobilised from that project on or about 21 August 2013 and all amounts, if any, paid to those persons for any notice period after notice of their demobilisation;

(b)    documents identifying persons engaged in flange management, as mechanical fitters or mechanical technicians and their qualifications and experience immediately before and after the applicant was demobilised from the 2019 Barrow Island shutdown project on or about 14 November 2019;

(c)    documents that identify persons engaged in flange management, as mechanical fitters or mechanical technicians and their qualifications and experience that were mobilised for the 2020 Barrow Island shutdown project;

(d)    documents that identify persons who had accepted engagements or who the respondent proposed to engage in flange management, as mechanical fitters or mechanical technicians and their qualifications and experience who were not, in fact, mobilised for the 2020 Barrow Island shutdown; and

(e)    documents that relate to the decision not to mobilise the applicant for the 2020 Barrow Island shutdown project.

3.    If and to the extent that human resources or other business records contain summaries of information of the kind referred to in the categories set out in paragraphs 2(a) – 2(d) of these orders, in the first instance, the respondent need only list and give discovery of the documents containing such summaries and not all or every document containing the applicable information.

4.    The parties have liberty to apply on 48 hours’ written notice to vary the terms of these orders.

5.    There be no order as to the costs of the applicant’s interlocutory application for further and better discovery filed on 16 August 2023.

9    On 17 November 2023 the applicant filed an affidavit in which he deposes facts relating to asserted difficulties that he will face if he is required to attend and give evidence in person at the trial. Although no interlocutory application was filed with that affidavit, I have taken it to be an application for the applicant to appear and make submissions and to give his testimony by video or audio link or other appropriate means under s 47B and s 47A of the Federal Court Act.

10    On 30 November 2023 the respondent filed an affidavit and a list of documents in accordance with the orders made on 11 October 2023.

11    On 7 December 2023 the applicant filed an interlocutory application by which he contended that the respondent had failed to comply with and sought an order compelling the respondent to comply with the orders for particular discovery of 11 October 2023. In substance, the applicant requests particular discovery of documents or categories of document he contends were not, but should have been, discovered in accordance with the orders of 11 October 2023. The application was supported by an affidavit of the applicant sworn 6 December 2023 exhibiting correspondence that has passed between the applicant and the respondent’s solicitors.

12    The applicant’s application for particular discovery was listed for a case management hearing on 20 December 2023. During the course of that hearing, I made observations to the effect that where a party contends that another party’s affidavit of discovery is deficient unless the deficiency arises on the face of the affidavit, it is usually necessary to demonstrate the deficiency and (or) grounds for considering that documents exist and are in the custody of the other party which have not been discovered by evidence. I also made observations to the effect that the application did not appear to be supported by evidence of that nature. During the course of that hearing, it also became apparent that, while the respondent submitted that it had complied with the orders of 11 October 2023, there were or may have been other documents in its custody that met the description of certain of the documents the applicant sought in his application. I made orders adjourning the application to 13 March 2024 to afford the parties an opportunity to confer and, if possible, resolve the application by agreement. I also considered that if were not resolved, having regard to the observations I had made about need for evidence in support of the application, that the adjournment would afford the applicant the opportunity to file further affidavit evidence in support of his application should he wish to do so.

13    On 22 December 2023 the applicant lodged an interlocutory application by which he requested that I recuse myself. The applicant also lodged an affidavit sworn 27 December 2023 in support of that application. Each of these documents was accepted for filing.

14    On 5 March 2024 the applicant filed two further affidavits each sworn 4 March 2023. These affidavits were evidently filed in support of his application relating to discovery.

15    On 13 March 2024 the respondent filed a further list of documents verified by an affidavit of Ms Enza Chevel sworn 13 March 2024. In addition to verifying the list of documents, the affidavit deposes to steps taken after the case management hearing on 20 December 2023 to provide further documents to the applicant.

Application for recusal

16    The interlocutory application and affidavit in support contain assertions to the effect that I am ‘racist’ and have ‘continually discriminated against’ the applicant.

17    At the hearing on 13 March 2024, I asked the applicant to explain the grounds upon which he asserted that I was biased. He gave as an example that I had asked counsel for the respondent if he was ‘happy’ at the hearing on 11 October 2023. The applicant submitted that the statement made it look like I was trying to make the respondent’s counsel (Mr Ellery) happy. When asked to identify where in the transcript it indicates that I asked Mr Ellery if he was happy, the applicant responded with a submission to the effect that the transcript was fabricated. He also made a submission to the effect that on 20 December 2023 I had made orders that costs be reserved without asking the parties (or the applicant) what order should be made as to costs. He also said I had insulted him and gave, as an example, that I had said that he was fishing for documents at the hearing on 11 October 2023. Otherwise, he said everything else was in his affidavit.

18    In the applicant’s affidavit he also asserts that I have insulted him and made a false allegation against him. That assertion appears to be related to an observation I had made at the hearing on 11 October 2023 to the effect that the applicant was ‘fishing’. The applicant asserts that at the hearing on 31 May 2023, at which I adjourned his application to amend his statement of claim, I attempted to ‘derail the case’. The applicant asserts that at the case management hearing on 20 December 2023 I was speaking like I was the solicitor for the respondent and I refused his application for discovery. The applicant asserts that the respondent has told lies and I have not taken any action against it for doing so. The applicant made a number of other assertions to the effect that I have made orders in favour of the respondent.

19    While not entirely clear, I take the applicant to contend that I should recuse myself on the ground of actual bias, alternatively on the ground of a reasonable apprehension of bias, because I am racist. That I am racist is to be inferred from my race (which the applicant describes as Caucasian) and the applicant’s race (which the applicant describes as Asian) and that I favoured the respondent in the case management hearings and decisions I have made in the proceedings.

20    Putting to one side the question of race, having regard to the background described earlier in these reasons, it is difficult to comprehend how the applicant could have formed the impression that any of my decisions have favoured the respondent (in terms of outcome) rather than the other way around. With respect to the applicant, it appears that his assertion to the effect that I have made orders favouring the respondent is founded on a misunderstanding of the effect of the orders and decisions I have made.

21    As to the hearing on 31 May 2023, the adjournment of the application to amend his statement of claim has had the opposite effect of derailing his case. Rather, it has permitted his claim to be listed for final hearing without the inevitable delay that would have resulted from hearing and determining disputes about the form of his pleading.

22    As to the assertion of insulting the applicant at the hearing on 11 October 2023 there was the following exchange with him concerning the issue of ‘fishing’:

HIS HONOUR: Well, it is because the relevance for them, as I – these are the particular 2013 reviews. At the moment, as you know, McKerracher J struck out and gave you [leave] to replead parts of that pleading. At the moment, I’m minded, the way things are standing, to allow you to produce the evidence that you’ve put in your affidavit about that, because I can see the link between what you say were poor reviews in 2013, and the allegation that you were not brought on to the project in 2020 because of those poor reviews. But as I understood it, based on earlier submissions made on the application to amend the statement of claim, the link was you said that those earlier reviews were poor because of racially motivated reasons of the reviewers. And, therefore, that racial discrimination that affected those reviews, therefore, infected the way that UGL approached your performance for the mobilisation in 2020.

So that’s the link between race and discrimination and 2020. And so I don’t – I don’t see how anything to do with their attendance, qualifications or experience can have any other relevance. Now, perhaps you could think about that when Mr Ellery is making his submissions and tell me about paragraph 6, which is the resumes for various – year ending payslips from 2018 to 2022. Can I just say, looking at that paragraph as a whole, that is an extraordinarily broad category of documents that one would normally characterise in a discovery application like this as a fishing expedition. By “fishing” I mean you’re looking for evidence about a case that you have not yet actually articulated, as opposed to seeking documents that relate to one you have. But you can tell me why they’re relevant, if you can, to something you have already said or alleged. But I don’t – it’s not obvious to me how these ones are relevant either.

MR JOY: Well, your Honour. First of all, I would like to say I’m not fishing for any document, because I don’t have time for it, and it’s insult for me to see these people with no experience or less experience getting the job. And I was racially – racially marginalised because I’m Asian, you know. And even coming and standing here is not – not a good thing. I hate doing this. So fishing – I’m not fishing for a document. I’m – I’m just – there is – your Honour, this – 2019, these people were sent, like, Jaryd Levitt. I know this guy personally for a long time from like maybe 2014. And I know Alan Ward from 2011, because Alan Ward was working at Jimblebar project and we used to work together for at least few days.

And these two people are very young people, and they never worked in oil and gas till 2014. And as far as I know, they are not even mechanical fitters. So these people are sent for ongoing jobs since 2019, when I am working in oil and gas or similar thing from 1998. So I have always done my job, and these people got the job because they submitted their resume ..... and everything you know.

23    There was nothing insulting in that exchange. The purpose was to provide the applicant with an opportunity to explain why the broad category of documents he was seeking were relevant to the issues and were not ‘fishing’. Further, I do not accept that the transcript of the hearing on 11 October 2023 (or any other transcript of hearings in this matter) has been fabricated. That is an allegation of serious impropriety directed to the provider of transcription services to the Court and (or) to Court staff involved in the preparation and provision of transcriptions. The allegation is bare assertion for which there is no justification and no evidence in support of it. I reject that allegation and submission.

24    As to the hearing on 20 December 2023, as already indicated, I made no orders on that application at that time, but adjourned the hearing to 13 March 2024. In the meantime, the respondent provided further discovery of many of the documents the applicant sought on that application. The conduct of the case management hearing on 20 December 2023 was to the advantage, not disadvantage, of the applicant. In this regard there was the following exchange with counsel appearing for the respondent at that hearing:

MR BOOTHMAN: And that is not in issue as to whether a person who is trade qualified. In the spreadsheet which the respondent used to demobilise personnel, my understanding of looking at that spreadsheet is it’s not a factor, which begs the question is what is the relevance of these trade papers in the first place?

HIS HONOUR: Well, I think we’ve been down this path before, Mr Boothman, if my memory serves me correctly, and I was persuaded by Mr Joy on the last occasion that one of his – one of the reasons he wants them – one of the reasons the qualifications are relevant is because part of his allegations are that people less qualified than himself were kept on the job. And if I understand what he said correctly today, he’s not satisfied the resumes are accurate because for whatever reason he thinks the qualifications are not being accurately stated in the resumes.

He – his view is – his submission is that people always provide with their resume, their certificates as well, and he wants to see the certificates, assuming that the respondent has them. Just looking at the order itself though, the documents identifying the persons and their qualifications and experience. Obviously, a resume would do that or should do that, if it was accurate. I just want to know if the reason that the respondent hasn’t gone one step further and produced any certificates or copies of certificates in its possession, or control is because of order 3, which essentially limits the extent to which you have to keep on going down the rabbit hole, as it were.

MR BOOTHMAN: It’s a good point, your Honour. And we’re here, regrettably, because, I think, after the fact that we gave discovery of those resumes, the issue of, “I want trade certificates,” came up after the date for discovery. Our view was that it does all those things already. The issue of whether a trade certificate was required under the orders - it became an issue in debate, as you will see from the correspondence. Perhaps a way forward, your Honour, is that of the mechanical fitters, of which I understand there are maybe 20 that were demobilised at the time, 25 we could seek instructions from our client as to whether trade certificates exist for that niche or that specific category of workers. I don’t know the answer as to whether they do exist. We’re talking about documents perhaps that are no longer in their custody. But if they do exist, I’m sure that we could - - -

HIS HONOUR: Seems to me that’s the shortest way home for all concerned.

MR BOOTHMAN: And I appreciate that, your Honour, we’re all trying to get to the finish line and help you to get there, so if that’s a point, Mr Joy made the point in the correspondence that he wanted all of them, and so UGL, across the whole span of electricians, carpenters, etcetera, mechanical trades of all sorts - it seems an unnecessary task. It doesn’t seem like it gets us to the end, and what we think might be a way forward is - - -

HIS HONOUR: No, but - - -

MR BOOTHMAN: - - - an order that - - -

HIS HONOUR: - - - I think - - -

MR BOOTHMAN: - - - the mechanical fitters are the trade - - -

HIS HONOUR: - - - the environment in which the respondent finds itself is that, for whatever reason - and we will find out in due course whether it’s valid or not - there’s an enormous amount of suspicion around disclosure, and, you know, it might be one of those cases where more is better than less - - -

MR BOOTHMAN: I understand.

HIS HONOUR: - - - to overcome that conception. So what I - I think we’re coming back next year anyway for some reason.

MR BOOTHMAN: I think we have a case management hearing in March is my understanding.

HIS HONOUR: Yes. So I had in mind standing this over. Mr Joy has heard what I’ve had to say about the adequacy of the affidavit material. And one would hope in the meantime this particular issue resolves itself. And along similar lines, I’m not 100 per cent satisfied that the affidavit meets the requirements of the Rules.

25    As I have also mentioned, I indicated to the applicant that on an application of this nature it would normally be necessary to demonstrate the likely existence of documents in the custody of the respondent that had not been discovered. The applicant appears to characterise those observations as ‘speaking like the solicitor for the respondent’ when, amongst other things, a purpose of those observations was, as is indicated in the passage from the transcript cited above, to give the applicant an opportunity to file further affidavit material if the application was not resolved before 13 March 2024.

26    As to the issue of the respondent providing false information (telling lies), the applicant submitted that at the hearing on 20 December 2023 the respondent’s counsel had submitted that the applicant had asked for every single trade certificate. The applicant characterised that as not correct. He then submitted that the respondent received an order in its favour that it only need to give discovery of trade certificates if it wanted to. That submission appears to have been founded on a misunderstanding of the nature of the exchange referred to earlier and the effect of an adjournment of his application.

27    As to the remaining assertions, these also appear largely to be connected to the applicant’s misconception about the hearing on 20 December 2023 and the adjournment, not determination, of his application for particular discovery. Otherwise, they are not sufficiently coherent or particularised to identify the nature of or grounds for the applicant’s complaints.

28    Insofar as actual bias is alleged, the question is not whether a decision-maker’s mind is blank, but whether it is open to persuasion. The state of mind for actual bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507 at [71]-[72] (Gleeson CJ and Gummow J) and the authorities there cited. Prejudgment of that nature must be firmly established: Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 100 (Gaudron and McHugh JJ). The applicant has not identified any evidence or basis for concluding there has been actual prejudgment of either his application relating to discovery or the final hearing of the applicant’s originating process. Moreover, I do not consider that I have in any way prejudged the interlocutory application or the originating process. I have not formed any view adverse to the applicant based upon his racial or cultural heritage, or otherwise, that would preclude me from deciding the interlocutory application or originating process with an open mind.

29    Insofar as a reasonable apprehension of bias is alleged, the governing principle is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ). The application of this principle requires two steps. First, identification of what it is alleged might lead a judge to decide a case other than on its legal and factual merits. Second, there must be a logical connection between that matter and the feared departure from the judge deciding the case on its merits. After those steps have been taken, the reasonableness of the asserted apprehension of bias can be assessed: Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 at [11] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ) and the authorities there cited.

30    I accept that if a judge were ‘racist’, within the ordinary meaning of that term, there would be a logical connection between that matter and the feared departure. In those circumstances, that judge might be predisposed to discriminate against the applicant on the basis of his racial or cultural heritage and that might lead that judge to decide the case other than on its legal and factual merits. However, before there could be any apprehension of bias, let alone a reasonable one, it would be necessary to establish, by evidence or by other means, that the judge was racist or was predisposed to discriminate against the applicant on the basis of his racial or cultural heritage. The applicant has not identified anything that I have said or done from which an inference could be drawn that I am ‘racist’ or have any predisposition to decide required questions in the proceedings against the applicant. Put another way, from the matters identified in the applicant’s application, affidavit and oral submissions, a fair-minded lay observer would not have any apprehension that I might not bring an impartial mind to the resolution of the questions I have to decide on the application relating to discovery or the originating proceedings. Thus, no question of reasonable apprehension of bias arises because the foundation for the asserted apprehension is absent.

31    I have provided a summary of the assertions that the applicant has made. I have not reproduced all of his assertions in any detail because they are scandalising of the Court. The applicant’s baseless assertion of racism is insulting and discourteous. Most of the other assertions in his application and affidavit in support are of a similar character. Insulting, discourteous and unfounded assertions of that nature have a tendency to undermine the dignity and authority of the Court and public confidence in the administration of justice. Accordingly, I will make an order under r 2.28 of the Rules that the interlocutory application lodged 22 December 2023 and the applicant’s affidavit sworn 27 December 2023 be removed from the Court file.

Application for particular discovery

32    In the applicant’s interlocutory application filed 7 December 2023 he asserts that the respondent has not fully complied with the orders made on 11 October 2023. The applicant contends that:

(a)    the respondent is not willing to discover qualifications (trade certificates) and, implicitly, requests an order for particular discovery of those documents;

(b)    the respondent has not discovered documents in accordance with paras 1(a), 1(b), 2(a), 2(b), 2(c) and 2(d) of the orders and, implicitly, requests an order that the respondent comply with those paras of the orders;

(c)    the respondent has not discovered the documents referred to in para 23 of the affidavit of Mr Terence Elliot affirmed 15 September 2023 in accordance with para 1(c) of the orders and, implicitly, requests an order for particular discovery of those documents;

(d)    the respondent has not discovered year ended group certificates for Mr Jarryd Levitt and Mr Alan Ward for the financial years 2019, 2020 and 2021 and, implicitly, requests an order for particular discovery of those documents;

(e)    the respondent has not discovered the ‘feedback’ referred to in para 3h of a letter from the respondent to the AHRC dated 9 November 2020 and, implicitly, requests an order for particular discovery of the document(s); and

(f)    the respondent has not discovered the itineraries of mechanical trades people mobilised and demobilised for the 2020 Barrow Island shutdown and, implicitly, requests an order for particular discovery of those documents.

33    On 1 March 2023 orders were made for the parties to give standard discovery (documents directly relevant to the issues raised by the pleadings or affidavits) in accordance with r 20.14 of the Rules. The respondent filed a list of documents dated 31 March 2023 verified by an affidavit of Ms Chevel sworn the same day in accordance with that order.

34    As already mentioned, the applicant made an interlocutory application for further and better discovery. That application was made after the issues were expanded by his application for leave to amend his statement of claim and the part hearing of that application before it was adjourned to allow for an alternate process for identification of the issues to take place. Having regard to that alternate process, orders were made, in effect, for particular discovery under r 20.21 of the Rules on 11 October 2023.

35    As already mentioned, on 30 November 2023 the respondent filed a list of documents verified by an affidavit of Ms Chevel sworn 30 November 2023. On 13 March 2024 the respondent filed another list of documents verified by an affidavit of Ms Chevel sworn 13 March 2024.

36    Rule 20.21 of the Rules provides:

20.21    Order for particular discovery

(1)    If a party (the first party) claims that a document or category of documents may be or may have been in another party’s control (the second party), the first party may apply to the Court for an order that the second party file an affidavit stating:

(a)    whether the document or any document of that category is or has been in the second party’s control; and

(b)    if the document or category of documents has been but is no longer in the second party’s control—when it was last in the second party’s control and what became of it.

(2)    The first party seeking an order under subrule (1) must identify the document or category of documents as precisely as possible.

37    In Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462; (2014) 232 FCR 560 at [92]-[99] Flick J articulated the principles to be applied when considering an application under r 20.21. Those principles may be summarised as follows:

(1)    There is no presumptive right to discovery. A party requesting discovery bears the onus of satisfying the Court that discovery of the documents is necessary. Therefore, an order for discovery is not ‘automatic’ or made ‘as a matter of course’, it must be necessary for the determination of the issues in the proceedings. Reflecting the overarching purpose of the civil practice and procedure provisions referred to in s 37M of the Federal Court Act, a party must not apply for an order for discovery unless the making of the order will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible: r 20.11 of the Rules. Further, an element of proportionality is factored into the concept of standard discovery and documents that are ‘directly relevant’.

(2)    Rule 20.21 (and its equivalents in other court rules) was introduced to obviate the hardship of the general rule that an affidavit of discovery is ‘conclusive’. An order may be made under r 20.21 where it appears from evidence or from the nature and circumstances of the case or from any document filed in the proceedings that there are grounds for a belief that some document or class of document relating to any matter in question in the proceedings may be or may have been in the possession, custody or power of a party. However, a deficiency in discovery must be established and must emerge from the materials before the Court.

(3)    Rule 20.21 is not a substitute for general discovery, but a rule for the discovery of a particular document or category of documents to be produced and is an application that may be made following either an order for standard or non-standard discovery.

38    It is with these principles in mind that I turn to consider the assertions and contentions the applicant has raised.

BP review documents (para 1(a))

39    In Ms Chevel’s affidavit of 30 November 2023 she deposes that the documents referred to in para 1(a) of the orders (BP review from 2012) are not in the possession, custody or control of the respondent. In Ms Chevel’s affidavit of 13 March 2024 she deposes, in effect, that to the best of her information, knowledge and belief, the ‘BP review from 2012’ belongs to BP and has never been in the control, custody or possession of the respondent. To the extent that the document exists and is in the possession of BP, it is open to the applicant to issue a subpoena directed to BP to compel production of that document at the trial. The applicant has not satisfied me that there are reasonable grounds for believing that the 30 November 2023 list is deficient for failing to comply with para 1(a) of the orders.

VOC document (para 1(b))

40    In Ms Chevel’s affidavit of 30 November 2023 she deposes, in effect, that to the best of her information, knowledge and belief the VOC document is an attachment to an email from M Covich dated 22 April 2021. The grounds upon which the applicant contends that the respondent has not discovered the VOC document are not contained in the applicant’s submissions and affidavits in support of his application. The applicant has not satisfied me that there are reasonable grounds for believing that the 30 November 2023 list is deficient for failing to comply with para 1(b) of the orders.

Documents referred to, exhibited or relied on for facts stated in affidavits (para 1(c))

41    In Ms Chevel’s affidavit of 30 November 2023 she deposes, in effect, that to the best of her information, knowledge and belief the documents referred to, exhibited to or relied upon as the source of the facts stated in the affidavits of Mr Radich and Mr Elliott are the documents itemised 1 – 21 in the 30 November 2023 list.

42    The applicant contends that these documents do not include the documents relied upon for the statements set out in para 23 of Mr Elliott’s affidavit. The grounds for that contention are not contained in the applicant’s submissions and affidavits in support of his application. Ms Chevel’s affidavit purports to identify all such documents. It will be open to the applicant to cross-examine Mr Elliott about the extent to which the documents identified in Ms Chevel’s affidavit are or are not capable of supporting the statements he has made in his affidavit. The applicant has not satisfied me there are reasonable grounds for believing that the 30 November 2023 list is deficient for failing to comply with para 1(c) of the orders.

Documents listed in part 2 of the 31 March 2023 list (para 1(d))

43    The respondent had filed a list of documents dated 31 March 2023 verified by an affidavit of Ms Chevel sworn the same day. That list had identified documents as privileged from production in part 2 of the list on the ground of irrelevance. Those documents were evidently relevant and incorrectly included in part 2 of the list. These documents were included in part 1 of the 30 November 2023 list as items 22 and 23. The applicant has not satisfied me there are reasonable grounds for believing that the 30 November 2023 list is deficient for failing to comply with para 1(d) of the orders.

Jimblebar 2013 (para 2(a))

44    In Ms Chevel’s affidavit of 30 November 2023 she deposes, in effect, that to the best of her information, knowledge and belief the documents described in item 25 of the 30 November list are documents in the control of the respondent identifying persons whom the respondent had engaged to perform work on the Jimblebar project who were demobilised on about 21 August 2013 and all amounts, if any, that they were paid for any notice period.

45    The applicant made a submission by reference to para 10 of his affidavit sworn 4 March 2024 that exhibited EVD 28 to the effect that a person named Mr Richard Bismark had worked on the Jimblebar project and that Mr Bismark had been paid for his notice period. Paragraph 10 refers to a list of workers demobilised from Jimblebar in 2013 who were paid in lieu of notice at pages 37 – 40 of the affidavit. That appears to be a reference to a list at pages 33 – 36 of the exhibit to the affidavit. The document at pages 33 – 34 lists a number of people who received payments in lieu of notice in October 2013. Mr Bismark is not evidently included in the list. The precise nature of the applicant’s submission is unclear, but it appears to be an assertion that Mr Bismark should have been, but was not, included in that list which leads the applicant to believe that the list is incomplete.

46    Paragraph 2(a) of the orders of 11 October 2023 related to the demobilisation on 21 August 2013. The facts deposed to in the applicant’s affidavit do not identify when Mr Bismark was demobilised or, otherwise, the period during which he was on that project. I am not satisfied on the basis of vague hearsay evidence that there are reasonable grounds for believing that the list exhibited to the applicant’s affidavit, assuming it is item 25 of the 30 November 2023 list, is deficient for failing to comply with para 2(a) of the orders.

Personnel for Barrow Island 2019 and 2020 (paras 2(b), 2(c), 2(d))

47    In Ms Chevel’s affidavit of 30 November 2023 she deposes, in effect, that to the best of her information, knowledge and belief the documents itemised at 26 of the 30 November 2023 list (file containing resumes of relevant employees) are the documents in the respondent’s custody corresponding to the categories described in paras 2(b), 2(c) and 2(d) of the orders.

48    Alleged deficiencies in the respondent’s discovery of these categories appear to be the main focus of the applicant’s application. These categories were the subject of his specific complaints regarding trade qualifications, group certificates and itineraries. These categories were also the subject of conferral after the hearing on 20 December 2023.

49    Paragraphs 6 to 13 of Ms Chevel’s affidavit of 13 March 2024 deposes to the steps taken to locate and discover trade certificates. These documents are identified in item 28 of the 13 March 2024 list.

50    Paragraphs 14 to 19 of Ms Chevel’s affidavit of 13 March deposes to the steps taken to locate and discover group certificates and (or) payment summaries. The substance of her evidence is that payment summaries rather than group certificates exist in relation to the relevant employees and these summaries were discovered for the financial years 2019, 2020 and 2021 for Mr Levitt and Mr Ward. These documents are identified at item 27 of the 13 March 2024 list.

51    Paragraphs 20 to 24 of Ms Chevel’s affidavit of 13 March 2024 deposes to the steps taken to locate and discover itineraries. The substance of her evidence is to the effect that flight itineraries are not retained. However, a report of flight logs has been extracted for flights during 2020 to Barrow Island. On 14 March 2024 the respondent filed an affidavit that deposes facts to the effect that a copy of an Excel spreadsheet containing flight details was provided electronically to the applicant on 13 March 2024. A copy of that spreadsheet was sent by email to my chambers because printing and viewing the document in hard copy is not straightforward. As the document was provided to the Court in accordance with leave I granted at the hearing on 13 March 2024, I will receive the spreadsheet as Exhibit A on the application and as a copy of item 29 on the 13 March 2024 list. I will also take the affidavit as read on the application.

52    I am satisfied that the documents described at items 27, 28 and 29 of the 13 March 2024 list are the same or substantially the same as the categories of document of which the applicant has requested particular discovery in paras 5, 2 and 7 of his application. I am not satisfied that there are reasonable grounds for believing that the 30 November 2023 list, as augmented by the 13 March 2024 list, is deficient for failing to comply with paras 2(b), 2(c) and 2(d) of the orders.

Feedback documents

53    Paragraph 6 of the application requests discovery of documents meeting the description of ‘feedback’ the applicant received regarding his performance referred to in para 3h of a letter from the respondent to the AHRC dated 9 November 2020. Documents meeting that description do not fall within any of the categories of document referred to in the orders made on 11 October 2023. Nonetheless, the letter of 9 November 2020 (which is a document of the respondent) refers to ‘feedback’ which may or may not be in writing. In the circumstances, I am satisfied that there are reasonable grounds for believing that a document or documents meeting that description exist and are in the custody of the respondent. Any documents in that category appear to be relevant. There will be an order for particular discovery of any feedback documents.

Outcome of application for particular discovery

54    It follows that having regard to the lists and facts deposed in the affidavits of Ms Chevel of 30 November 2023 and 13 March 2024, I am not satisfied that the respondent has failed to comply with the orders of 11 October 2023. Therefore, paras 1 to 5 and 7 to 9 of the application will be dismissed. Otherwise, there will be an order to the effect that the respondent file an affidavit stating if any document containing the ‘feedback’ referred to in para 3h of the respondent’s letter to the AHRC dated 9 November 2020 is or has been in the respondent’s control and, if no longer in its control, when it was last in its control and what became of it.

Application for remote appearance and testimony of evidence

55    As already mentioned, the applicant filed an affidavit on 17 November 2023 which I have taken to be an application for the applicant to give his testimony and appear and make submissions at the final hearing by video link, audio link or other appropriate means under s 47A and s 47B of the Federal Court Act. The applicable provisions provide:

47    Oral, video link, telephone and affidavit evidence

…

Civil trials of causes

…

(3)    The Court or a Judge may at any time, for sufficient reason and on such conditions (if any) as the Court or Judge thinks necessary in the interests of justice, direct or allow proof by affidavit at the trial of a cause to such extent as the Court or Judge thinks fit.

(4)    Notwithstanding any order under subsection (3), if a party to a cause desires in good faith that the maker of an affidavit (other than an affidavit referred to in subsection (2)) proposed to be used in the cause be cross-examined with respect to the matters in the affidavit, the affidavit may not be used in the cause unless that person appears as a witness for such cross-examination or the Court, in its discretion, permits the affidavit to be used without the person so appearing.

(5)    If the parties to a cause so agree and the Court does not otherwise order, testimony at the trial of the cause may be given by affidavit.

(6)    Subject to this section and section 47A and without prejudice to any other law that would, if this subsection had not been enacted, expressly permit any testimony to be otherwise given, testimony at the trial of causes shall be given orally in court.

Note:    For testimony etc. by video link, audio link or other appropriate means, see sections 47A to 47F.

47A    Testimony by video link, audio link or other appropriate means

(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)    The power conferred on the Court or a Judge by subsection (1) may be exercised:

(a)    on the application of a party to the proceedings; or

(b)    on the Court’s or Judge’s own initiative.

…

47B    Appearances or submissions by video link, audio link or other appropriate means

(1)    The Court or a Judge may, for the purposes of any proceeding, direct or allow a person:

(a)    to appear before the Court or the Judge; or

(b)    to make a submission to the Court or the Judge;

by way of video link, audio link or other appropriate means.

Note:    See also section 47C.

(2)    The power conferred on the Court or a Judge by subsection (1) may be exercised:

(a)    on the application of a party to the proceedings; or

(b)    on the Court’s or Judge’s own initiative.

…

47C    Conditions for use of video links, audio links or other appropriate means

Video link

(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:

(a)    the courtroom or other place where the Court or the Judge is sitting is equipped with facilities (for example, television monitors) that enable all eligible persons present in that courtroom or place to see and hear the person (the remote person) who is:

(i)    giving the testimony; or

(ii)    appearing; or

(iii)    making the submission;

by way of the video link;

(b)    the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom or other place where the Court or the Judge is sitting;

(c)    such other conditions (if any) as are prescribed by the Rules of Court in relation to the video link;

(d)    such other conditions (if any) as are imposed by the Court or the Judge.

(2)    The conditions that may be prescribed by the Rules of Court in accordance with paragraph (1)(c) include conditions relating to:

(a)    the form of the video link; and

(b)    the equipment, or class of equipment, used to establish the link; and

(c)    the layout of cameras; and

(d)    the standard of transmission; and

(e)    the speed of transmission; and

(f)    the quality of communication.

…

Eligible persons

(6)    For the purposes of the application of this section to a particular proceeding, eligible persons are such persons as the Court or a Judge considers should be treated as eligible persons for the purposes of that proceeding.

56    Murphy J recently surveyed the authorities and considered and summarised applicable principles concerning an application under s 47A in Southernwood v Brambles Limited (No 2) [2022] FCA 973 at [27]-[44]. Murphy J concluded with following statements of principle with which, with respect, I agree:

43    The courts have taken into account a variety of factors in exercising the discretion under s 47A(1), including the employment commitments of an overseas witness; whether the credibility of the witness is in issue; whether the witness’s evidence will be “centrally important” to the case; and whether the use of video link may frustrate or delay the management of documents in cross-examination: see [Kirby v Centro Properties Limited [2012] FCA 60; 288 ALR 601] at [10] and the cases there cited. Each of those can be said to be relevant in the present application.

44    But those factors are neither exhaustive nor prescriptive and the discretion under s 47A(1) is a broad one in which the determining consideration is the interests of justice in the particular facts and circumstances of the case. It involves a balancing exercise as to what will best serve the administration of justice, doing so consistently with maintaining justice between the parties: Kirby at [11]. It must also be guided by the overarching purpose in s 37M, namely, the facilitation of the just resolution of disputes according to the law and as quickly, inexpensively and efficiently as possible: [Palmer v McGowan (No 2) [2022] FCA 32; 398 ALR 524] at [40]. This approach to the discretion is consistent with the remarks of Flick J in Corrigan v Commvault Systems (Australia) Pty Ltd [2011] FCA 107; 192 FCR 71 at [12], with which Besanko J agreed in [Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 627; 231 FCR 531] at [16]. Those decisions show:

(a)    it is for the party seeking a 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.

57    The same general principles apply to appearances or submissions by video or audio link or other appropriate means. However, in general, unlike witness testimony, most of the potential disadvantages affect the party seeking to appear or make submissions remotely and not opposing parties. Therefore, in general, the Court may be more readily persuaded that it is in the interests of the administration of justice to permit appearances and submissions to be made remotely than is the case with respect to permitting witness testimony to be given remotely. Nonetheless, there remain disadvantages to the Court in terms of potential reduction in efficiency and effectiveness of oral hearings arising from disruption and decreased continuity and comprehension that can arise from oral communications via video or audio link or other means. The absence of parties or their legal representatives in the Court at which the hearing is taking place also tends to diminish the public nature of Court hearings and undermine the appearance and concept of open justice.

58    For the purposes of case management hearings, the applicant has appeared and made submissions via video or audio link from India. At times the nature of the connection has been poor and there have been many disruptions to these hearings. However, at the last hearing a video link of sufficient quality was established through Microsoft Teams and the hearing was conducted satisfactorily. In these circumstances, I am satisfied that the conditions prescribed by ss 47C(1) and 47C(2) are met.

59    There are two grounds for the application. The first is that the applicant asserts that his life would be in danger if he were to travel to Australia ‘due to standing for my right to get [j]ustice and for speaking up’. He claims he will face victimisation on the basis of his race. He asserts to have faced hostilities from Court staff and claims that to be an example of victimisation. He asserts that he was not afforded justice in his 15 years of being in Australia on account of his race, he was discriminated against by Australian companies, police, courts, commissions, tribunals and other government bodies on the basis of his race. He asserts that Australia is an extremely racist country ‘where [h]uman rights for people who are not Caucasian [have] no value as per [his] experience and observation in the past 15 years’. These claims are bare assertion. His affidavit does not depose any evidence or statements of fact that could support his claims. I do not accept that the applicant faces any likelihood of harm on the basis of his race or otherwise if he were to travel to Australia to appear and give evidence.

60    The second ground is that, in effect, he is the primary carer of his elderly parents. The applicant adduced some evidence that his father has chronic kidney disease in respect of which he receives regular dialysis treatment. In an undated letter evidently from a medical practitioner, the doctor opined that the applicant’s father was then in a critical stage and required his only son to return to India urgently to assist his father. As elsewhere the applicant deposes that he has not returned to Australia for two years, I infer that the letter was written shortly before he returned to India. The letter also indicates that the applicant’s father has cardiac related illness.

61    I accept that the applicant’s father has kidney disease and cardiac illness. I accept that the applicant is the primary carer of his father and that he regularly assists his father with respect to his illness including taking him to and from hospital for dialysis and other treatment. For example, case management hearings have been listed in the afternoons so as to allow the applicant to take his father to medical appointments during the morning in India. I accept that if the applicant were to travel to Australia to attend the trial it would result in disruption for his father and his medical treatment. On the other hand, the applicant has not provided any evidence to the effect that there is no other person in India who would be able to care or capable of caring for his father for a short period so as to allow the applicant to travel to Australia for the hearing.

62    When asked about the possibility of another person caring for the applicant’s father for a short period, the applicant indicated that another person had assisted when the applicant was in Australia. However, he asserted that person had stolen from his parents and (or) the applicant. While not evidence and only submission, these submissions tend to suggest that the applicant’s affidavit evidence is incomplete and he has not deposed to all facts that may be relevant to his ability to travel to Australia. Accordingly, while I accept it would be more difficult and not ideal for the applicant’s father, I am not satisfied that the applicant is not able to travel to Australia to attend the hearing. In substance, he is unwilling to do so because he wishes to care for his father and is fearful that another person will not care for him as well as the applicant.

63    The respondent opposes the application. The main ground of opposition is that the applicant will be cross-examined and his credit will be in issue. Further, it is likely that there will be many documents used in the course of his cross-examination that will require transmission to the applicant. The respondent contends that the allegations the applicant has made against it have serious implications for its reputation and that it will be prejudiced if the applicant, as his only witness, is not present in Court.

64    In general, members of this Court have taken the view that evidence given via video link is unsatisfactory in a number of ways. In Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; (2009) 181 FCR 152 at [78] Buchanan J captured the essence of the limitations of video link evidence in the following observations:

I share the concerns expressed by Spender J in Australian Competition and Consumer Commission v World Netsafe Pty Ltd (2002) 119 FCR 303] and by Stone J in [Dorajay Pty Ltd v Aristocrat Leisure Ltd [2007] FCA 1502] about the limitation on the effectiveness of video link arrangements as a means of taking oral evidence. I am particularly troubled by the prospect (or possibility) that the cross-examination of an important witness might be rendered less effective by the limitations of video link technology or the absence of the witness from the courtroom. Although the days are gone when witnesses are expected to feel any sense of intimidation as an aid to telling the truth, there is no doubt in my mind that the requirement to give evidence on oath or affirmation in the (generally) solemn atmosphere of a courtroom in the presence of a judge, and to answer questions in cross-examination in the presence also of cross-examining counsel, has at least three potential benefits. It enhances the prospect that the witness will remain conscious of the nature and solemnity of the occasion and of his or her obligations. It affords the cross-examiner some reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party. It provides the Court with a more satisfactory environment in which to assess the nature, quality and reliability of responses by a witness, both to questions and to the overall situation presented by the necessity to give evidence in court. To my mind there remains, even in the modern context, a certain “chemistry” in oral interchanges in a courtroom, whether between a judge and counsel (or other representative) or between cross-examiner and witness. I would not wish too lightly to deprive a cross-examiner of that traditional forensic element in the exchange although, as the cases universally make clear, the Court must now, if asked to do so, balance the interests of a cross-examining party against claimed inconvenience both in individual cases and with respect to individual witnesses. Notwithstanding the increased availability and use of video link technology, in my view, a case must be made out for the use of video link evidence if it is opposed by an affected party. I do not share the view expressed by Katz J. My own view and, I think, the weight of authority, is to the contrary.

65    Given the experience and use of currently available technology and platforms during the COVID-19 pandemic, historical judicial statements might be thought to somewhat overstate the disadvantages of testimony given remotely. As to this, I respectfully agree with and adopt the following observations of Perram J in Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 at [19]:

The Respondent then submitted that the cross-examination of witnesses over video-link is unacceptable. I accept the Respondent’s submission that 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’ 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.

66    Nonetheless, the observations of Buchanan J (and others like it) remain powerful considerations: Blackrock Asset Management Australia Services Limited v Waked (No 2) [2011] FCA 479 at [46] (Perram J). While the face of a person is usually amplified and clear on Court video links, generally, other parts of the witness’s body are not in view or not clearly so. It is, of course, self-evident that a great deal of communication is non-verbal and not all non-verbal communication is located within facial expressions. The importance of non-verbal communication is one of the reasons that appellate courts give deference to a trial judge’s assessment of credit based on observations of the witness in court and demeanour. For example, the examiner and the Court may be unaware of off-camera non-verbal cues such as wringing hands, clenching fists, folding arms, shaking legs or tapping feet that may or may not assist to assess credit or understand the ‘whole’ communication in answer to an examiner’s question. Experience suggests that these elements of communication are lost or diminished in testimony given via video link and that loss may be a significant disadvantage to the party cross-examining and to the Court’s assessment of the witness’s evidence as a whole.

67    Amongst other things, s 37M of the Federal Court Act indicates that an object of the overarching purpose of the civil practice and procedure provisions is the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. In that context, travel costs of parties and witnesses is a relevant consideration for the purposes of the exercise of the discretion in s 47A and s 47B. However, when the question of travel costs was put to the applicant during the hearing, again by way of submission, he disavowed that such costs were an impediment to him attending the hearing. The respondent submits that, notwithstanding that the proceedings are not complex, the allegations the applicant has made against the respondent are serious and, if sustained, have the potential to cause significant reputational harm. Therefore, the costs of the applicant attending in person for cross-examination is proportionate to the importance of the matters in dispute.

68    The final hearing is listed for three days commencing on 16 April 2024. It was listed and the time estimated on the basis that the hearing would be conducted in person. While many hearings have been conducted entirely through video link, for the reasons given in Campaign Master and Capic and in other authorities surveyed in Southernwood, it is preferrable for witnesses whose credit is in issue, whose evidence is important or who are to be cross-examined for any significant length of time to attend and give their evidence in person. The applicant’s evidence will be important as he is the only witness the applicant intends calling to give evidence in support of his claim. The respondent submits his credit will be in issue. As matters stand, the applicant has filed a list of the affidavits and documents upon which he intends to rely at the trial that appears to include six affidavits and numerous documents. It appears likely that the applicant will be cross-examined for a significant part of the three days allocated to the trial.

69    In addition to the generally unsatisfactory nature of evidence given via video link, there are also inevitable losses in the efficiency of the conduct of the trial that result from taking evidence remotely. Even with high quality connections and legal representatives marshalling documents, lengthy cross-examinations via video links have disruptions and delays of a kind that do not arise during in person hearings. Production and transmission of documents that the cross-examiner identifies late or during cross-examination also create delays and difficulties when evidence is given remotely. These difficulties and delays are likely to be compounded where a party is self-represented as there will not be legal representatives to receive the transmission of documents electronically and marshal them during the course of the examination of a witness. There may also be difficulties policing documents and other potential sources of information available to the witness during cross-examination where a party is self-represented.

70    The respondent submits that it intends to cross-examine the applicant on many documents. I have no reason to doubt that submission accurately reflects the respondent’s current intention. While difficulties transmitting and marshalling documents for use during cross-examination may be managed, to an extent, through on-screen sharing documents facilitated by the Court, I have serious reservations about the extent to which that will be an effective and efficient means of conducting the cross-examination of the applicant in this case. Due to the potential number of documents, I am not satisfied that on-screen sharing will not result in: delays, difficulties with reading and comprehending documents; general disruption of the cross-examination and the Court’s assessment of the applicant as a witness; or undue increase in the length of his cross-examination. Put another way, I am not satisfied that cross-examination of the applicant via video link will not jeopardize completion of the trial within three days and increase the risk of a part-heard trial which is undesirable.

71    Additionally, the applicant will have to conduct his cross-examination of the respondent’s witnesses via video link. Conducting cross-examinations via video link presents challenges for competent and experienced counsel for the reasons already given. I am not satisfied that the applicant, as a self-represented litigant, will be able to conduct an effective cross-examination via video link or that the duration of the cross-examinations will not be unduly increased because of disruptions and difficulty transmitting, marshalling and sharing documents remotely. These are matters that are likely to disadvantage to the applicant as a self-represented litigant. In making his application, the applicant may not have appreciated the full extent to which appearing via video link is likely to be to his disadvantage. Therefore, I am not satisfied that the applicant appearing and making submissions via video link will not have a significant effect on the efficiency of the conduct of the trial or that the administration of justice favours the applicant appearing via video link.

72    Taking all these matters into account, the applicant’s desire to remain in India to provide care to his parents, in particular his father, while understandable, is not a sufficiently cogent reason for permitting him to appear, make submissions and give evidence at the trial via video link. Based on the parties’ submissions, I am also not satisfied that the cost of the applicant travelling to Australia to appear and give evidence is out of proportion to the importance and complexity of the matters in dispute or, otherwise, poses an impediment upon the applicant’s access to justice. Thus, having regard to the central importance of his evidence to his case, the likely difficulties and impediments that will be encountered if he were to appear and give his evidence remotely, and the absence of any evident cost impediment, I am not satisfied that the interests of justice favour making orders under s 47A and s 47B.

73    The application to appear, make submissions and give evidence via video link will be dismissed.

Conclusion

74    The application for recusal is dismissed. There will be an order to the effect that the respondent make an affidavit for particular discovery of any ‘feedback’ documents and, otherwise, the application for particular discovery will be dismissed. The application for remote appearance, submissions and evidence will be dismissed. I will hear the parties on the question of costs.

Associate:

Dated:    25 March 2024