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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Details
- Case
- [2011] FCA 107
- Decision Date
CaseChat Overview and Summary
Corrigan v Commvault Systems (Australia) Pty Ltd involved an application for videoconferencing to be used for the cross-examination of two witnesses based in New Zealand. The case was heard in the Federal Court of Australia. The primary issue for the court to decide was whether the respondents could be required to attend court in person or if it was permissible for them to give their evidence via video link from the High Court of New Zealand in Auckland.
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.
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
Section 47A(5) further provides, however, that s 47A “does not apply if the person giving testimony is in New Zealand”. For proceedings in New Zealand, the comparable power is that conferred by s 25(1) of the Evidence and Procedure (New Zealand) Act1994 (Cth). That section in its entirety provides as follows:Australian courts may take evidence etc. from New Zealand (1)The court may, on the application of a party to a proceeding, direct that evidence be taken or submissions made, by video link or telephone, from New Zealand. (2)The court must not make such a direction unless it is satisfied that: (a) the necessary facilities are available or can reasonably be made available; and (b) the evidence or submission can more conveniently be given or made from New Zealand. (3)The court may exercise in New Zealand, in connection with taking evidence or receiving submissions by video link or telephone, all its powers which it is permitted, under New Zealand law, to exercise in New Zealand.Section 26 should also be noted. That section provides as follows:Taking evidence by video link Evidence must not be given, and a submission must not be made, by video link unless the courtroom or other place where the court is sitting, and the place where the evidence would be given or the submission would be made, are equipped with video facilities that enable: (a)persons who are at the courtroom or other place to see and hear the person giving the evidence or making the submission; and (b)persons who are at the place where the evidence is given or the submission is made to see and hear persons at the courtroom or other place.Notwithstanding the slight difference in language as between s 47A(1) of the 1976 Act and s 25(1) of the 1994 Act, it was submitted that the discretionary power conferred by the statutory phrase “may … direct” is to be construed in the same manner in both provisions. The correct construction and application of s 47A(1), however, has itself not been a matter free of difficulty. There has been, at least in the past, some apparent divergence as to the use of video facilities between the Supreme Court of New South Wales and this Court. Some Supreme Court decisions suggest that the “ordinary procedure” should prevail and that a witness should attend in person unless there is some cause shown for departing from such a course: Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (Unreported, NSWSC, Giles CJ Comm D, 11 March 1997); Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd [2001] NSWSC 651, 53 NSWLR 1 per Palmer J. Some decisions in this Court suggest that the Court should more readily permit the use of the “relatively new video link technology”: eg, McDonald v Commissioner of Taxation [2000] FCA 577, 44 ATR 226, (2000) ATC 4271 per Finn J at [21] to [22]; Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 per Katz J. In Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd, Palmer J helpfully collated this divergence of approach as follows: [23] The competing views in the authorities as to the taking of evidence by video link to which I have referred above can probably be best illustrated by referring to the decision of Giles CJ Comm D in Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd, as contrasted with the decision of Katz J in Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd. In Sunstate Airlines Giles CJ Comm D says (at 6):“The ordinary procedure is [that a witness gives oral evidence before a judge in a courtroom] and there are sound reasons for following it unless cause to the contrary be shown. The conduct of proceedings in open court, available to public scrutiny, is of great importance. Cross-examination may be more difficult when video evidence is taken because documents have to be transmitted or produced in an unfamiliar manner, because of delay in voice transmission, or for other reasons, and the effectiveness of cross-examination as a weapon in the fight for truth should not be unduly hindered. And in many cases the Court is assisted in fact finding by observance of what is misleadingly called the demeanour of the witnesses, upon which the taking of video evidence may impact. All that said, particularly where the evidence is relatively uncontroversial, the cross-examination is not likely to be lengthy, or no real issue of credit is involved, the taking of video evidence can be beneficial to the administration of justice and consistent with justice between the parties. It may permit the Court to receive the evidence of a witness which would otherwise not have been available, it may permit the evidence to be received without causing undue inconvenience to witnesses (which should be an important matter in the administration of justice), and it is now an accepted feature of litigation - so much so that for some years the Federal Court of Australia has had in place the videoconference facilities proposed to be used in the present proceedings.”[24] In Tetra Pak Marketing, Katz J says at (at [25]):“In light of the attitude taken in this Court in the five cases which I have mentioned above, as well as the attitude manifested in the Courts of New South Wales … Victoria … New Zealand … and England ... in the cases referred to by Finn J in McDonald, I find a strong current of authority in favour of permitting the relatively new video link technology to be used in the absence of some considerable impediment telling against its use in a particular case.”[25] It will be seen that Giles CJ Comm D in Sunstate Airlines was of the view that cause had to be shown for departing from the “ordinary procedure” of requiring a witness to give his or her evidence in Court in person, whereas in Tetra Pak Marketing Katz J was of the view that the video link technology should be permitted in the absence of some considerable impediment telling against its use.[26] I am unable to adopt the view of Katz J in Tetra Pak Marketing. In my opinion, the considerations referred to by Giles CJ Comm D in Sunstate Airlines in support of the ordinary procedure of the Court in receiving evidence are still compelling, notwithstanding the advances in technology since the date of his Honour’s judgment and notwithstanding the obviously increasing use of technology in Court proceedings since that time.”In Australian Securities and Investments Commission v Rich [2004] NSWSC 467 at [17] to [18], 49 ACSR 578 at 582 to 583 Austin J also collated the two lines of authorities, one favouring the use of audio visual evidence and the other line taking a “more cautious approach”. In yet a further decision of this Court it has been suggested that “a substantial case needs to be made out to warrant the Court declining to make an order for evidence to be taken by video link”: Versace v Monte [2001] FCA 1454 at [16] per Tamberlin J.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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