Hanson-Young v Leyonhjelm (No 3) - [2019] FCA 645

FEDERAL COURT OF AUSTRALIA
Hanson-Young v Leyonhjelm (No 3) [2019] FCA 645

File number: NSD 1370 of 2018

Judge: WHITE J

Date of judgment: 29 April 2019

Catchwords: PRACTICE AND PROCEDURE – application pursuant to s 47A of the Federal Court of Australia Act 1976 (Cth) for the oral testimony of two witnesses in defamation proceedings to be taken by videolink – consideration of factors relevant to the discretion under s 47A – application allowed in part.

Legislation: Federal Court of Australia Act 1976 (Cth) s 47A

Cases cited: Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; (2009) 181 FCR 152

Date of hearing: 29 April 2019

Registry: New South Wales

Division: General Division

National Practice Area: Other Federal Jurisdiction

Category: Catchwords

Number of paragraphs: 15

Counsel for the Applicant: Mr K Smark SC with Ms S Chrysanthou

Solicitor for the Applicant: Kennedys

Counsel for the Respondent: Mr AJH Morris QC with Mr K Stoyle

Solicitor for the Respondent: Sterling Law

ORDERS

NSD 1370 of 2018

BETWEEN:
SARAH HANSON-YOUNG

Applicant

AND:
DAVID EAN LEYONHJELM

Respondent

JUDGE:

WHITE J

DATE OF ORDER:

29 APRIL 2019

THE COURT ORDERS THAT:
1.On the Applicant’s Interlocutory Application filed 26 April 2019, pursuant to s 47A of the Federal Court of Australia Act 1976 (Cth) the testimony of Senator Jordon Steele‑John may be taken by videolink to the Perth Federal Court.
2.The Applicant’s application for the evidence of Senator Rachel Siewert to be taken by videolink is refused.

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

EX TEMPORE REASONS FOR JUDGMENT
WHITE J:

By an interlocutory application filed in the Court on the morning of Friday, 26 April 2019, the applicant seeks orders pursuant to s 47A of the Federal Court of Australia Act 1976 (Cth) allowing the evidence of two of her proposed witnesses to be taken by videolink from a courtroom of the Federal Court in Perth. The two witnesses are Senators Siewert and Steele‑John. The respondent opposes the order sought by the applicant.
The exercise of the discretion under s 47A has been considered in a number of authorities. Generally, the Court takes the view that the contested evidence of a witness and the cross‑examination of the witness on that evidence, should take place in the courtroom in which the trial has been conducted. The reasons for this were articulated by Buchanan J in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; (2009) 181 FCR 152 at [78]. The decision in Campaign Master has been followed in a number of later decisions.
It is for the applicant to show that the exercise of the discretion which she seeks is appropriate.
The matters on which the applicant relies in the present case are these:
(a)Senators Siewert and Steele‑John are resident in Perth;
(b)the evidence each will give is expected to be relatively short;
(c)there would be inconvenience to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Hanson-Young v Leyonhjelm (No 3) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FCA 645
Decision Date: 29 April 2019

CaseChat Overview and Summary

Senator Hanson-Young brought an action for defamation against Senator Leyonhjelm in the High Court. Senator Hanson-Young sought an order that the oral testimony of two witnesses be taken by videolink, pursuant to section 47A of the Federal Court of Australia Act 1976 (Cth). The application was opposed by Senator Leyonhjelm who argued that the witnesses should give evidence in person. The Federal Court was required to consider the factors relevant to the exercise of its discretion under section 47A, and to determine whether the application should be allowed in whole or in part. The court was also required to consider whether the witnesses’ evidence would be of significant assistance to the trial and whether the witnesses would suffer significant inconvenience or hardship if required to give evidence in person.
The court found that the witnesses’ evidence would be of significant assistance to the trial, and that the witnesses would suffer significant inconvenience or hardship if required to give evidence in person. The court also found that the application should be allowed in part, and that the witnesses’ evidence should be taken by videolink. The court found that the witnesses’ evidence would be of significant assistance to the trial, and that the witnesses would suffer significant inconvenience or hardship if required to give evidence in person. The court also found that the witnesses’ evidence should be taken by videolink, and that the application should be allowed in part.

The court made an order that the oral testimony of the two witnesses be taken by videolink, and that the application be allowed in part. The court also made an order that the parties bear their own costs of the application.

Orders