Federal Court of Australia

Buonocore v Cesan (video link evidence) [2026] FCA 1557

ORDERS

THE COURT ORDERS THAT:

1.    The respondents’ application pursuant to s 47A(4) of the Federal Court of Australia Act 1976 (Cth), made by email on 14 October 2026, for orders pursuant to s 47A(1) of that Act that two of their witnesses be permitted to give evidence by audio visual link from Thailand:

(a)    be granted by consent in respect of Ms Rossarin Petpan; and

(b)    be dismissed in respect of Ms Piyawadee Boonkerd.

2.    The respondents pay the applicant’s costs of the application.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    A late application was made by the respondents under s 47A(4) of the Federal Court of Australia Act 1976 (Cth), for orders pursuant to s 47A(1) of that Act, to permit two witnesses to give evidence by video link from Thailand instead of attending in person at the trial. The evidence in question was likely to be confined to cross-examination, although there could have been re-examination. The respondents made the application by email to my Chambers on Wednesday 14 October 2026, ahead of the trial commencing the following Monday, on 19 October 2026.

2    The respondents sought orders in respect of one key witness (Ms Piyawadee Boonkerd), and the application also extended to a relatively formal witness (Ms Rossarin Petpan), who did not end up being required for cross-examination. The applicant to the substantive proceeding, and respondent to the s 47A application, opposed the order being made in respect of Ms Piyawadee Boonkerd and consented to it being made for Ms Petpan. It was common ground that the mandatory requirements in s 47C(1) for the making of the orders sought had been met, so as to enliven the discretion to make them.

3    On 15 October 2026, after receiving the request and s 47A application made by email, the application was urgently listed for interlocutory hearing on 16 October 2026. After hearing from the parties, I adjourned to consider the application and competing arguments. I returned and dismissed the application insofar as it concerned the key witness and granted it in respect of the formal witness, ordering the respondents to pay the applicant’s costs. These are my reasons.

4    Section 47A(1) gives the Court or a Judge a broad discretion to direct or allow testimony to be given by video link, audio link, or other appropriate means. That discretion is only enlivened for video link evidence if both ends of the link are equipped with sufficient facilities for effective and appropriate audio and visual communication to take place: s 47C(1). The key relevant discretionary considerations have been developed in a number of cases, some of which are addressed below.

Prior unsuccessful s 47A(1) application by the applicant

5    There is some history to the proceeding involving a failed s 47A(4) application made by the applicant, which puts this application in context. On 19 December 2025, I had made orders following a case management hearing to list the proceeding for hearing on 9 to 12 June 2026. Later that day, the applicant’s solicitor wrote to my chambers indicating that the applicant would be overseas during those hearing dates, and would make an application to appear by video link if required. The respondents’ opposition to a video link solution to this problem was communicated by a 19 December 2025 email from their solicitor, which included the following:

We refer to the Applicant’s below email foreshadowing an application for Mr Buonocore to give his trial evidence by AVL while overseas.

Your Honour observed this morning that the case is likely to turn substantially on the credit of the Applicant and of the First Respondent. The First Respondent resides permanently in Thailand, and yet he is arranging to travel from Thailand to give his evidence in person, as is appropriate.

The Respondents will oppose any AVL application for the Applicant.

Where credibility is central, such as in this case, the Federal Court has recognised that in-person cross-examination may be required to allow proper forensic testing, including immediacy of questioning, control of documents, and the Court’s ability to assess demeanour without the limitations of remote technology.

As the Applicant has placed their position on the record – we have in turn now placed our client’s position on the record.

6    The applicant subsequently filed an interlocutory application on 27 January 2026, seeking a s 47A(1) order to allow him to give his evidence in cross-examination by video link. The respondents maintained their opposition to this order being made. At the hearing of that application on 6 February 2026, I refused the application and instead vacated the June hearing dates, and relisted the hearing in the period 19 to 22 October 2026. At the hearing of that application, I made the following observations, which were not disputed by the applicant’s counsel:

… the really big issue is the cross-examiner, and because … good cross-examination involves a degree of connection between … particularly the cross-examiner and the witness. There’s a degree of nuance and subtlety in that. It often has a conversational feel to it. And that’s the one thing I’ve never seen work well on video link, and that is your biggest hurdle.

7    After hearing submissions in support of the application by counsel for the applicant, I said to counsel for the respondents:

… you may need to get some further instructions, but … I don’t need more persuading that this, as a credit case, is an in-person evidence case.

8    In the course of seeking costs for the unsuccessful application and criticising the applicant for the delay in bringing a formal s 47A(1) application, the then counsel for the respondents said of that application “that was never going to be successful on this issue of appearance by AVL”. A short time later, counsel for the applicant submitted that “it can’t be said that it’s a totally hopeless application”. Counsel for the respondents next said, “in terms of totally hopeless, I wasn’t heard, your Honour, and I would have, in my respectful submission, persuaded your Honour that it was totally hopeless if I had had that opportunity”. The stance of the respondents was therefore that cross-examination of a key credit witness needed to be in person.

The present s 47A application by the respondents

9    Despite the above history, and despite the respondents necessarily being fully aware of the significant hurdles standing in the way of any key credit witness in this proceeding giving evidence in cross-examination by video link, at 4.54 pm on Wednesday, 14 October 2026 (that is, only two clear business days before the trial), an email was sent by the solicitors for the respondents to my associate in the following terms:

We act for the Respondents.

We write in relation to the Respondents’ witnesses for the final hearing commencing on 19 October 2026.

The First Respondent, Mr Rafael Cesan, will attend the hearing in person and will be available for cross-examination.

The Respondents also rely upon the affidavit evidence of:

1.    Ms Piyawadee Boonkerd; and

2.    Ms Rossarin Petpan.

Both witnesses are Thai nationals resident in Thailand. Both witnesses will give evidence in English and without the assistance of an interpreter.

The Respondents respectfully seek leave for Ms Boonkerd and Ms Petpan to give their evidence and be cross-examined by audio-visual link from Thailand.

Both witnesses will be available for cross-examination during the hearing and can make themselves available at such times as directed by the Court, having regard to the time difference between Sydney and Thailand.

The Respondents consider that the use of AVL in respect of these two witnesses will enable their evidence to be given efficiently without the substantial travel and logistical burden associated with requiring two Thailand-based witnesses to travel to Australia for the hearing.

Mr Cesan, whose evidence is central to the factual disputes in the proceeding, will attend and give evidence in person.

The Applicant’s solicitors were notified of the AVL application a short while ago and have indicated that they will revert as soon as possible on their position (i.e. whether they consent / oppose or neither) with respect to it.  

The Respondents will, of course, comply with any technological or procedural requirements directed by the Court in relation to the AVL evidence.

We would be grateful if this request could be placed before His Honour.

Should you have any questions, please do not hesitate to contact the writer.

10    Following a reply email by my associate, which referred to, inter alia, the terms of s 47A(1) and s 47C(1), the applicant advised by email that he would not oppose the making of a s 47A(1) order in respect of Ms Petpan, but would oppose it in respect of Ms Piyawadee Boonkerd. The application was therefore listed for hearing at the first time mutually convenient to the parties, being 10.15 am on 16 October 2026, the Friday before the Monday start of the trial.

The general nature of the case, evidence sought to be given by video link, and evidence in support of the video link applications

11    There are three sisters with the surname “Boonkerd” that emerge out of the affidavit evidence filed in this proceeding, one of whom is married to the first respondent. Ms Piyawadee Boonkerd is one of the other two sisters, and therefore the first respondent’s sister-in-law. Without any disrespect, it is convenient and avoids error or confusion to refer to her only by her first name, Piyawadee, which is a unique name in this proceeding.

12    Prior to hearing the application, I had read the pleadings, affidavit evidence in the court book, and the parties’ opening written submissions. I do not need to go into the evidence in much detail, not least because this is an urgent application and a decision was needed on the day of the hearing of the application, with reasons to follow as soon as possible. This is a case in which it is common ground that the applicant provided $300,000 to a bank account of the corporate second respondent, at the direction of the first respondent, for the purposes of a legal cannabis growing business in Thailand.

13    The applicant relies upon, inter alia, what he says was a contractual agreement between him and the first respondent, and that the corporate second respondent (whose sole shareholder, director, and secretary is the first respondent) is an alter ego of the first respondent. The respondents contend that the contractual agreement was instead between the applicant and a Thai company owned by Piyawadee and her sisters, with the respondents being no more than agents of that company. The respondents’ proposed evidence to that contrary effect came in large measure from the first respondent and Piyawadee.

14    Both sides also rely upon documentary evidence, including letters, emails and WhatsApp messages. It is readily apparent that the acceptance of Piyawadee’s evidence, if it was permitted to be adduced, was likely to be important to the respondents’ case; and that non-acceptance or rejection of keys aspects of that evidence was likely to be important to the applicant’s case. That must have been mostly clear by 6 February 2026, when the present trial date was fixed, more than eight months in advance. That was beyond question by the time that the third and final affidavit by the applicant to be relied upon in the trial was sworn on 18 March 2026, a full seven months before the trial.

15    An affidavit sworn by Piyawadee on 15 October 2026 was lodged for filing at 4:50:09 pm on 15 October 2026 and accepted for filing almost immediately. It was not brought to the attention of my Chambers by email, as might be expected for such a late affidavit, so I only became aware of it soon after 8.30 am on 16 October 2026, just prior to the interlocutory hearing for the s 47A application. The applicant did not object to Piyawadee’s affidavit being read, but pointed to the lack of an opportunity to test it as going to its weight.

16    In her 15 October 2026 affidavit (which I have read and considered in its entirety), Piyawadee deposes in particular to the following in relation to her ability to travel to Australia:

(a)    she reviewed information published by the Australian Embassy in Thailand on 15 October 2026, which indicated to her that she needed a visa to come to Australia and that it needed to be sought well in advance of intended travel, and that the application process may entail health checks for temporary visa, and she does not have a visa;

(b)    she does not have the means to pay to come to Australia;

(c)    her work commitments preclude her coming to Australia; and

(d)    when speaking to the first respondent (her brother-in-law) on 15 October 2026, he said to her “I cannot afford to pay for your flights, accommodation and other costs of coming to Australia for the trial”.

17    In relation to the giving of remote evidence, she deposes in her affidavit to the following:

(a)    she proposes to give evidence from a private room in the office of the company where she works (which is the same company of which she was a director, and asserted to be the company with whom the applicant had the contractual agreement);

(b)    she will arrange the camera so that the Court has a clear and unrestricted view of her while giving evidence;

(c)    she is willing, if directed, to show the Court the room by moving the camera so the Court can see the room and satisfy itself as to who is present;

(d)    she will not communicate with any other person by any means unless the Court permits her to do so;

(e)    she will switch off or place beyond her reach any telephone or communication device which is not required to maintain the video link;

(f)    she will only have with her such documents as the Court permits;

(g)    she will have access to her affidavit and such other documents as the Court permits;

(h)    she is able to receive electronically any document which the counsel or the Court wished to show me during her cross-examination;

(i)    she is willing to follow any direction of the Court concerning the manner in which documents are shown to her; and

(j)    she speaks and understands English and does not need an interpreter, and in substance deposes to meeting all formal requirements, and is only not able to be present rather than wishing to avoid attending Court or avoiding cross-examination.

18    Piyawadee also describes the technical facilities available for her to give evidence by video link. I was satisfied that the mandatory requirements of s 47C(1) have been met, applying that to both applications. That was not disputed by the applicant.

19    What Piyawadee’s evidence does not and cannot address is the materially lower quality of cross-examination that is likely to be possible if she does not give that evidence in person, a point that is addressed in the authority considered below.

20    In this application the evidence that was not adduced by the respondents was significant. Importantly, there was no evidence from the respondents’ solicitor for the delay in bringing the application, leaving me with no more than the bare assertion made by their counsel from the bar table that it had been overlooked. Even accepting that to be the case, that is hardly a compelling circumstance, especially given the prior history of a failed video link application that was opposed by the respondents. That is not a matter of equivalence in outcome, but rather of ample notice of the difficulty of such an application succeeding.

21    Nor was there any direct evidence from the first respondent as to his inability to fund Piyawadee’s travel to Australia. I placed little weight on the hearsay assertion by him to Piyawadee about not being able to afford to do so. Nor did I place much weight on his prior and untested affidavit evidence some time ago about his financial circumstances. He appears to have business interests in Thailand, and I was unable to accept that it has been established that he truly is unable to pay for Piyawadee to come and give evidence in Australia, especially as it most likely could have been completed in something like a 24-hour turnaround and certainly in less than two days.

22    As to Piyawadee’s evidence about the visa situation, I note that in her affidavit that was proposed to be read at the trial, sworn on 11 December 2025, she deposed to living in Australia for seven years between about 2013 and about 2020. In her 15 October 2026 affidavit, Piyawadee sets out her understanding of the Australian visa requirements on the basis of enquiries made on 15 October 2026. It is not clear from the latter affidavit whether this was the first time that Piyawadee became aware of those requirements, or that it was simply on that date that she visited the various information sources to refresh her knowledge or understanding of the requirements. In any event, I was unable to accept that she would not have had a sufficient prior general understanding of visa needs to travel from Thailand to Australia to be aware that this could not be left until the Wednesday before the trial commencing.

23    Finally, there was no evidence at all about the costs of Piyawadee coming to Australia. With budget airlines and a booking sufficiently far in advance, I was unable to accept, without direct evidence, that this would have been substantial in the context of the costs incurred in the rest of this proceeding. As the applicant pointed out, it would almost certainly have cost less to bring her to Australia than to make this application.

24    Aside from Piyawadee’s affidavit, no other evidence was adduced by the respondents which would support their application or otherwise offer some explanation for the delay in making the s 47A application. No evidence was adduced by the respondents’ solicitor as to the cost of transporting and accommodating the witnesses, or the enquiries made in reaching that conclusion, or why the issues were not identified and addressed earlier. The respondents’ delay in dealing with the issue of the overseas witnesses has not been addressed, that is, no explanation has been offered at all as to why the respondents did not try to resolve this at a more timely point in the proceeding such that the current problems could have been ventilated sooner and possibly entirely resolved with more time available.

Authority

25    It is sufficient to reproduce below the summary of principles by O’Callaghan J in Deeming v Pesutto [2024] FCA 951, which were more recently applied by Hill J in Gilham v Melbourne Symphony Orchestra Pty Ltd (Subpoena and Video link evidence) [2026] FCA 27 at [51]-[52]. In Deeming, O’Callaghan J said:

(a)    at [12]-[25]:

Each case turns on its facts, and various factors will usually need to be weighed in the balance, with none being exhaustive or prescriptive. See eg Kirby v Centro Properties Ltd [2012] FCA 60; (2012) 288 ALR 601 at 604–605 [10] (Gordon J).

In that case, Gordon J noted (at 604–605 [10]–[11]) that courts have taken a number of matters into account in exercising the discretion under s 47A(1) of the Act or its equivalents in other jurisdictions, including relevantly: the employment commitments of an overseas witness; whether the credibility of the witness is in issue; the importance of the witness’ evidence to the case; whether the use of video link may frustrate or delay the management of documents in cross examination; and the costs involved in requiring a witness, especially a witness who is not a party, to travel to Australia to give viva voce evidence.

It is also well established that it is necessary for a party who is asking the court to exercise the discretion to make an order under s 47A(4)(a) to make out their case for making it, particularly if it is opposed by the other party, where the evidence is contested, the witness is to be cross-examined and questions of credit, credibility and reliability are involved. See, by way of example only, Rush v Nationwide News Pty Ltd (No 4) [2018] FCA 1558 at [50] (Wigney J).

(b)    at [33]-[35]:

As Buchanan J said in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 at 171 [78]:

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 … [T]here 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 crossexaminer 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.

Although those observations were made 15 years ago, they remain as relevant now as they were then, and they have been adopted with approval on many occasions since. See Kirby v Centro Properties Ltd [2012] FCA 60; (2012) 288 ALR 601 at 603–604 [8] (Gordon J); Blackrock Asset Management Australia Services Limited v Waked (No 2) [2011] FCA 479 at [45]–[46] (Perram J); Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 231 FCR 531 at 536–537 [16]–[17] (Besanko J); Southernwood v Brambles Ltd (No 2) [2022] FCA 973 at [29]ff (Murphy J); Joy v UGL Operations and Maintenance Pty Ltd (No 3) [2024] FCA 279 at [64]–[66] (Feutrill J). And they apply with greater force when the credit, credibility and reliability of an important witness is sought to be challenged.

Consideration of discretionary considerations

26    I had no difficulty in being satisfied that granting the video link evidence order in relation to Ms Petpan, by consent, constitutes an appropriate exercise of the discretion. Ms Petpan is a relatively formal witness, for whom credit is not apparently contested, and from whom evidence in cross-examination may not be ultimately required (and as it transpired, was not required), and is less consequential to the parties’ respective cases than Piyawadee’s evidence.

27    The importance to the respondents of Piyawadee giving her evidence, and the importance of the applicant being able to test it properly, was not in doubt. The difficulty in this case is that not to make the order deprives the respondents of Piyawadee’s evidence altogether, while to make the order deprives the applicant of the capacity to test that evidence properly and effectively, with the real risk that a proper opportunity to endeavour to impeach that evidence would be lost. The former would certainly be a most unfortunate outcome, but it was caused by the conduct of the respondents. I was far from convinced that a means of having Piyawadee come to Australia at a relatively low cost could not have been achieved if this had been raised at a much earlier time, as it should have been. I was not satisfied that the first respondent genuinely did not have the means to pay for that to take place at a low enough cost.

28    The granting of the order would have involved giving a real and unjust forensic benefit to the respondents when the applicant is entirely blameless for this situation arising.

29    Having read the affidavit evidence of the applicant and the first respondent, and the proposed affidavit evidence of Piyawadee, the views I expressed in the course of the applicant’s unsuccessful video link application on 6 February 2026, reproduced above, have only been reinforced. The observations of Buchanan J in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; 181 FCR 152 reproduced above have a particularly strong resonance to the evidence of those three key witnesses. There was a further factor: if the applicant and first respondent were both cross-examined with vigour in person, as I expected they undoubtedly would be (and in fact were), the absence of that quality of cross-examination of Piyawadee would be even more stark. That discrepancy would be likely to render her evidence comparatively more intact than that of the other two key witnesses, and in particular to that of the applicant.

30    Having regard to all of the foregoing, I concluded that would be likely to work a material injustice to the applicant if he was only able to cross-examine Piyawadee by video link. I therefore reached the firm conclusion that the more compelling just resolution of these conflicting interests lay with declining to make the video link order in respect of Piyawadee.

Conclusion

31    For the above reasons, I declined to exercise my discretion to make the video link order in respect of Piyawadee, but was satisfied that it should be made by consent in respect of Ms Petpan. A costs order in favour of the applicant was quite properly not resisted.

Associate:

Dated:    21 October 2026