FEDERAL COURT OF AUSTRALIA
Corrigan v Commvault Systems (Australia) Pty Ltd [2011] FCA 107
Citation: Corrigan v Commvault Systems (Australia) Pty Ltd [2011] FCA 107 Parties: DOMINIC CORRIGAN v COMMVAULT SYSTEMS (AUSTRALIA) PTY LTD (ABN 13 103 972 612) AND ANOR File number: NSD 1002 of 2010 Judge: FLICK J Date of judgment: 15 February 2011 Catchwords: PRACTICE AND PROCEDURE – application for videoconferencing – two witnesses based in New Zealand – required for cross-examination – application granted Legislation: Evidence and Procedure (New Zealand) Act 1994 (Cth) ss 25, 26
Federal Court of Australia Act 1976 (Cth) s 47A(1)
Federal Court Rules O 14 r 9Cases cited: Australian Competition and Consumer Commission (ACCC) v StoresOnline International Inc [2009] FCA 717, cited
Australian Securities and Investments Commission v Rich [2004] NSWSC 467, 49 ACSR 578, cited
Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd [2001] NSWSC 651, (2001) 53 NSWLR 1, considered
Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306, 181 FCR 152, considered
Dorajay Pty Ltd v Aristocrat Leisure Ltd [2007] FCA 1502, cited
McDonald v Commissioner of Taxation [2000] FCA 577, 44 ATR 226, (2000) ATC 4271, considered
Odhiambo v Minister for Immigration and Multicultural Affairs [2002] FCAFC 194, 122 FCR 29, cited
Reinsurance Australia Corporation Ltd v HIH Casualty & General Insurance Ltd (in liq) [2002] FCA 1549, cited
Sheahan v Joye (1995) 57 FCR 389, cited
Sheldon & Hammond Pty Ltd v Metrokane Inc [2002] FCA 1561, cited
Sockhill v Deputy Commissioner of Taxation [2000] FCA 1208, 178 ALR 113, cited
Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (Unreported, NSWSC, Giles CJ Comm D, 11 March 1997), considered
Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261, considered
Versace v Monte [2001] FCA 1454, consideredDate of hearing: 14 and 15 February 2011 Place: Sydney Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 19 Counsel for the Applicant: Mr M Dunne Solicitor for the Applicant: Hunt and Hunt Counsel for the Respondents: Mr R Goot SC Solicitor for the Respondents: Maddocks Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
FAIR WORK DIVISION
NSD 1002 of 2010
BETWEEN: DOMINIC CORRIGAN
ApplicantAND: COMMVAULT SYSTEMS (AUSTRALIA) PTY LTD (ABN 13 103 972 612)
First RespondentGERRY SILLARS
Second Respondent
JUDGE:
FLICK J
DATE OF ORDER:
15 FEBRUARY 2011
WHERE MADE:
SYDNEY
BY CONSENT, THE COURT ORDERS THAT:
1.Leave is granted to the Respondents for Mr Stuart Alexander and Mr Roger Cockayne, to appear to give evidence in these proceedings via video link on 22 February 2011 from the videoconference room of the High Court of New Zealand in Auckland.
2.Leave is granted to the Respondents to issue subpoenas to Mr Stuart Alexander and Mr Roger Cockayne to attend to give evidence via video link from the videoconference room…
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- Case
- [2011] FCA 107
- Decision Date
CaseChat Overview and Summary
The court considered the statutory provisions under the Evidence Act 1995 (Cth) and the Evidence and Procedure (New Zealand) Act 1994 (Cth), specifically sections 47A and 25, which provide the authority for taking evidence by video link. The court also noted previous judicial decisions that had considered the use of video link technology, highlighting the differing approaches between requiring in-person attendance and permitting the use of video technology. The court examined the arguments presented by both parties, with the applicants advocating for the necessity of in-person attendance and the respondents arguing for the use of video link technology to avoid undue inconvenience.
In reaching its decision, the court determined that while the technology for video link evidence-taking had advanced and was widely accepted in litigation, the fundamental considerations in favor of the ordinary procedure of requiring in-person attendance were still compelling. The court highlighted the importance of open court proceedings, public scrutiny, and the effectiveness of cross-examination. However, it acknowledged the increasing use of technology in court proceedings. Ultimately, the court found that the respondents had not demonstrated a substantial impediment to in-person attendance that would warrant permitting evidence to be given via video link. The court granted the application, allowing the respondents to issue subpoenas for the witnesses to appear via video link.
The final orders of the court included granting leave for the respondents to have Mr. Stuart Alexander and Mr. Roger Cockayne appear via video link on 22 February 2011 from Auckland, New Zealand. The court also allowed the issuance of subpoenas to the witnesses to appear via video link and mandated that these documents be served on the witnesses by 16 February 2011, with service permitted via electronic communication and facsimile. The costs of the notice of motion were to be borne by the respondents.
Orders
Orders of the court
1. Leave is granted to the Respondents for Mr Stuart Alexander and Mr Roger Cockayne, to appear to give evidence in these proceedings via video link on 22 February 2011 from the videoconference room of the High Court of New Zealand in Auckland.
2. Leave is granted to the Respondents to issue subpoenas to Mr Stuart Alexander and Mr Roger Cockayne to attend to give evidence via video link from the videoconference room of the High Court of New Zealand in Auckland on 22 February 2011.
3. The subpoenas referred to in Order 2, together with a copy of these Orders, must be served on Mr Stuart Alexander and Mr Roger Cockayne on or before 16 February 2011. Copies of these documents may be served via electronic communication and via facsimile, as follows:
Mr Stuart Alexander – Email: Stuart.Alexander@ingrammicro.co.nz and Fax: +64 9 414 0101
Mr Roger Cockayne – Email: Roger.Cockayne@revera.co.nz and Fax: +64 9 442 8601
4. The costs of the Respondents’ Notice of Motion are to be the Respondents’ costs in the cause.
Note:
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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