K and S and v
[2001] FamCA 243
•20 April 2001
[2001] FamCA 243
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal Nos SA29 & SA33L of 2000
AT MELBOURNE File No AD452 of 2000
BETWEEN:
K
Appellant Husband
- and -
S & V
Respondents
REASONS FOR JUDGMENT OF THE FULL COURT
CORAM: KAY, COLEMAN & COLLIER JJ
DATE OF HEARING: 13 March 2001
DATE OF JUDGMENT: 20 April 2001
APPEARANCES: The Appellant Husband in person by way of video link.
Ms Pyke of Counsel, instructed by Foreman Mead McGinn, Solicitors, 22 Grenfell Street, Adelaide, SA 5000, appeared on behalf of the Respondents.
K & S & V
SA 29 & SA 33L of 2000
Coram: Kay, Coleman and Collier JJ
Date of hearing: 13 March 2001
Date of Orders: 13 March 2001
Date of Judgment: 20 April 2001
PRACTICE and PROCEDURE - VENUE - contact proceedings -applicant father imprisoned in Hobart- children live in Victoria and South Australia- proceedings transferred to Adelaide - whether husband discriminated against by having to conduct his case via video link
The proceedings related to the husband’s application to have contact with his two younger children. The seven year old lives near Adelaide with the husband’s brother, and the six year old lives in country Victoria with the husband’s sister.
The husband is in detention at Risdon Prison, Hobart having been convicted of the murder of his wife (who was the mother of the children).
On 8 December 1999 Registrar Hay made an order transferring the proceedings relating to the husband’s application for contact with the children from Hobart to Adelaide.
On 1 May 2000, Robinson J heard a Form 44 application by the husband to review the order made by Registrar Hay. The basis for the husband’s application was that he could not travel to Adelaide because of his imprisonment; that he could not afford legal representation; and that to conduct his case by video link would cause him to suffer discrimination.
The trial Judge found that the cost and inconvenience to the respondents appearing in Hobart outweighed the factors favouring the applicant. Her Honour therefore upheld the decision of the Registrar to transfer the proceedings from Hobart to Adelaide.
On 10 May 2000, Robinson J dealt with the Form 8 application by the husband whereby he sought to stay the order made on 1 May 2000. The basis of the husband’s application for a stay related to the burden of costs, as well as to the discrimination he experienced because the proceedings were conducted by video link. Her Honour held that on balance it was not proper to grant the stay.
On appeal, the husband argued that the trial Judge had erred by not considering the discrimination he would incur by having to conduct his case via video link, and by failing to consider the greater financial resources of the respondents compared to the appellant.
Held: in dismissing the appeal
(per Kay, Coleman and Collier JJ)
There is nothing in Robinson J’s orders that amounts to the appellant being discriminated against because of an irrelevant criminal record. The fact of the appellant’s incarceration was highly relevant to the venue application
The trial Judge correctly weighed up the competing interests of the various parties, including the appellant’s incarceration and the effect that would have on his being able to adequately put his case. Her Honour concluded that any disadvantage the appellant suffered could be minimised through the use of video link technology.
A careful examination of Robinson J’s discretionary judgment revealed no error of law, failure to consider relevant material, or an unjust conclusion.
One of the rules of natural justice is the right to be heard, but in a civil proceeding this does not amount to a right to be physically present.
The use of technological advances in the conduct of civil litigation is to be encouraged where there can be significant savings as to both time and cost, whilst ensuring that all parties have a reasonable opportunity to partake in proceedings.
There was not in any sense “unlawful discrimination” in determining that a trial of a civil action, instigated by the appellant, should take place at a venue which, because of the appellant’s incarceration, meant that he could only present by way of video link.
APPEAL DISMISSED
REPORTABLE
On 13 March 2001 we heard an appeal against orders made by Robinson J on 1 May 2000 regarding the venue for the hearing of a contact application. The appellant father sought to have the hearing take place in Hobart rather than in Adelaide. On the 10 May 2000 Robinson J refused to grant a stay of the order of 1 May 2000, and that refusal was also the subject matter of an appeal. In the course of the appeal proceedings, the appellant appreciated that the stay appeal served little purpose as the substantive hearing had not yet taken place. The stay appeal was then effectively and appropriately abandoned.
At the conclusion of the appeal hearing we announced that the appeal would be dismissed and that we would subsequently deliver our reasons for judgment.
Background
In December 1995 the appellant killed his wife (who was the mother of the children). He was subsequently convicted of her murder and sentenced to 24 years imprisonment. He is incarcerated at Risdon Prison, Hobart.
The two children who are the subject of the contact application are D born April 1993 and N born December 1994. D lives in South Australia with the appellant’s brother (the first respondent) and N in Victoria with the appellant’s sister (the second respondent). They have lived in their respective homes since 1996. Both the respondents are married and have children of their own. The children’s living arrangements were formalised by orders made by Joske J on 27 May 1998. Those orders deal with the short and long term care, welfare and development of the children and make provision for contact with their grandparents. Order 23 provides:
"23.That each of the children shall have such contact with their father…as may be agreed between [the father] and the respective residential parents for each child."
Judgment of the trial Judge
On 1 May 2000 Her Honour dealt with the father’s Form 44 application for review of the order of Senior Registrar Hay made on 8 December 1999. The Registrar had ordered that a contact application, initially filed by the appellant in the Court of Petty Sessions at Devonport on 10 August 1999 and subsequently referred to the Family Court at Hobart, be transferred to the Adelaide Registry of the Family Court.
Her Honour's reasons for judgment are fairly short. The following extracts are pertinent to this appeal:
“2.…The basis of the husband's application for review of decision of Registrar Hay is that he cannot travel to Adelaide for the hearing because of his imprisonment. He cannot afford representation in this Court or indeed at all and that as such, disadvantages him, and that to conduct his case by video link up would further disadvantage him.
3.The husband has limited funds. He works in the prison on a full-time basis and is paid a little over $2000 per annum, some of which he uses to assist his mother. The husband put it to me that he would have nine witnesses or thereabouts who are in Tasmania and who he would want to call to give evidence at the trial in this matter. They include expert witnesses as well as members of his family, including his mother. Ms Pyke, who appeared for the two respondents, [S], brother of the husband and [V], sister of the husband, opposed the application to transfer the proceedings back to Hobart.
4.The basis of Ms Pyke’s opposition on behalf of the respondents was that all of the relevant players, to use her words, are here in South Australia or relatively nearby at [Victoria]. The children are, of course, one here in South Australia and one at [Victoria]. The children have already had some dealings with an expert here and Ms Pyke puts it to me that there will be at least one more expert witness. At this stage, I should add that there is no appointment of a Child Representative, but I note amongst the papers the husband has filed he is seeking the appointment of a Child Representative and whilst it is not for me to decide that matter, that would seem to be an appropriate step in the proceedings.
5.Necessarily, the Child Representative would be appointed from the Adelaide Registry so that he or she can have access to the children's caregivers, their teachers, any expert witnesses to date and the like. The Child Representative, if appointed, might himself or herself want to have the children further assessed by experts, depending on the state of the evidence before that person.
6.There are complex issues in this matter. I have read the report of Ms Hewitt [sic] [child psychologist] and whilst I am not accepting that as before me in a formal sense, it raises complex issues in relation to the welfare of that child and whichever court determines the matter, clearly is going to need a great deal of evidence about that child in order to make a proper decision in the interests of the child on the substantive application.
7.The documents disclose that the respondents are of reasonable means but they have between them, a number of children, and they have, as the husband has, already incurred a substantial financial burden in dealing with the proceedings which were conducted in the Melbourne Registry and which were completed in 1998. It would, as Ms Pyke put it to me, require them to continue to have a solicitor here in Adelaide to take instructions and prepare documents and for that person to instruct an agent in Hobart and either to instruct a barrister here and have that person travel to Hobart or to appoint a barrister in Hobart.
8.One way or another, for the respondents to conduct the case in Hobart, would inevitably, in my view, involve them in further costs above and beyond the costs they will necessarily incur in conducting the case here. The question really is as to which is the most convenient forum, is it the Hobart Registry or is it the Adelaide Registry? I am well aware of the disadvantage that the husband is under because he has no representation and because he is in custody. There is this video-link system which, whilst it hasn't worked perfectly today, in my experience works very well and does enable trials to proceed by way of evidence by video-link.
9.My view on the totality of the matter put to me ably by the husband and ably by Ms Pyke, is that I decline to vary the order of Registrar Hay and accordingly, I dismiss the Form 44.”
On 10 May 2000 Robinson J dealt with a Form 8 application brought by the father by which he sought to stay the order made on 1 May 2000. The father had, by then, filed a notice of appeal in the Full Court. The basis of the father’s application for a stay was said to have related firstly to the burden of costs, and secondly to the discrimination the father felt he experienced because the proceedings were conducted via video link. As this appeal has been dealt with prior to the further hearing of the transferred applications, it is unnecessary to deal with the appeal against the refusal to grant the stay sought.
Grounds of Appeal
The father’s grounds of appeal as contained in the Notice of Appeal filed on 3 May 2000 were as follows:
“1. Judge did not give due consideration to my argument
2.Video link-up places me at a disadvantage made more apparent by the decision to dismiss my venue appeal
3.Respondents argument was not at all convincing
4.Judge gave too much credence to child psychologists report
5.Respondent Ellis is to engage child psychologist in Adelaide - but no name given
6.Respondents claim bulk of witnesses are from Adelaide - but no names given
7.Burden of costs to respondents who are not well off - but income of respondents far outweighs appellant
8.Respondents would request their own lawyer in Hobart, as they would not want to brief a new lawyer, however it was recommended to me that I should engage South Australian representation
9.Judge stated that convenience is with the respondents. However I am not permitted to travel and I believe due consideration was not given to my circumstances
10.Judge stated that child representative must come from Adelaide, however previous proceedings have appointed a Melbourne child psychologist (expert) and representative
11.Judge stated cross-examination of respondents witnesses from Hobart to Adelaide by video-link was ridiculous. However I am expected to conduct whole case by this medium
12.Judge stated that other expert witnesses to be called in Adelaide - no names given
13.Judge stated that hearing will take longer than one day and respondents could not travel to Hobart for extended time, however video link-up will be tied up for extended time (my witnesses testimony/cross-examination will require 7 hours. Video link-up broke down on 7 occasions during one hour testimony on 1/5/00).”
The appellant asked that the venue for the contact hearing be transferred back to Hobart.
The Appeal
The main ground of appeal emphasised by the appellant was that the trial Judge failed to adequately consider the discrimination the father would experience by having to conduct his case via video link. Particular reference was made to s 16(q) of the Tasmanian Anti-Discrimination Act 1998. The appellant included in his material a quote from a letter he had received from Dr Jocelynn Scutt, the Tasmanian Anti-Discrimination Commissioner:
“…appearing by video-link-up (if this can be arranged with Prison Authorities) is not the same as being in court in person, to make application in person, it disadvantages you because:
Being in a court in person ensures that the person ‘sees’ all that is happening in the courtroom, and can ‘pick up’ various nuances, etc that the person cannot when on video linkup.
The Judge gains a different impression or ‘feel’ about the person when the person is in the courtroom from when the person is transmitted into the courtroom on video-linkup”.
Section 16(q) of the Anti-Discrimination Act 1998 (Tas) provides:
"A person must not discriminate against another person on the ground of any of the following attributes:
…
(q) irrelevant criminal record."
Without entering into the debate as to whether that Act has any application to a Federal proceeding (and we doubt that it has) there is nothing in Robinson J's orders, the subject matter of this appeal, that would amount to such discrimination. The fact of the appellant's circumstances, namely his incarceration, far from being irrelevant was in fact highly relevant to the venue application. Indeed it was the very basis upon which the appellant resisted the transfer application and it is the very basis upon which the appellant now seeks to rely. Her Honour at no time sought to disadvantage the appellant in a discriminatory way because of his "criminal record". She merely weighed up the competing interests of the various parties in deciding that the proceedings should be continued in Adelaide rather than Hobart.
In this matter the appellant has the right to commence his application for contact. He has the right to be heard to argue his case. He has the right to cross examine witnesses. He has the right to call relevant evidence. However he is bound by all of the procedural rules which include rules as to venue. Order 27 of the Family Law Rules provides:
"(1) A party who has filed an application or response in proceedings in a court exercising jurisdiction under the Act may, by application filed in the filing registry, apply to have the proceedings heard:
(a)in another registry of that court;
…
(3) (1) In considering an application for an order under rule 1…the court shall have regard to:
(a)the availability of a court to hear the proceedings;
(b)the convenience of the parties;
(c)the limiting of expense and the costs of the proceedings; and
(d)any other relevant matter."
Her Honour clearly understood the task she had to perform and properly undertook that task. She identified and weighed up all of the competing considerations, one of which was the fact of the appellant's incarceration and the effect that would have on his being able to adequately put his case. She concluded that, bearing in mind the available technology, any disadvantages the appellant suffered would be significantly minimised and that the balance of convenience favoured the respondents.
When considering this appeal, it needs to be firmly borne in mind that this is an appeal against an exercise of discretion. An appellate court may review a discretionary judgment which has proceeded under a wrong principle, has failed to give proper weight to a relevant matter, has given undue weight to a particular matter, has given weight to an irrelevant matter, or has reached a conclusion that is manifestly unjust.
Generally an appellate court will apply particular caution in interfering with a discretionary judgment concerning a matter of practice or procedure though it will be more ready to interfere if it perceives that the decision was affected by error which has worked injustice to the appellant: Jackamarra v Krakouer (1998) 195 CLR 516; Philip Morris Inc v Adam P. Brown Male Fashions (1981) 148 CLR 457; Willow Grange Pty Ltd v Yarra City Council (unreported, Victorian Supreme Court of Appeal, 23 December 1997).
Given the unusual nature of this case, the very heavy sense of grievance that the appellant expresses, and the disadvantages that the appellant suffers from being self represented, we have carefully examined her Honour's exercise of discretion but we can detect no error.
That the appellant has a right to be heard in respect of his application goes without saying. The right ought not be illusory. But in a civil proceeding it is a right to be heard, rather than a right to be present.
In Simm’s Application for Judicial Review; O'Brien’s Application for Judicial Review and Main’s Application for Judicial Review [1997] EWCA 4542 (4 December 1997) Judge LJ said:
“42. When serving the custodial sentences imposed to punish them for their crimes, convicted criminals do not become outlaws, outside or beyond the protection of the law. It is axiomatic that ‘a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication.’(Raymond v Honey [1983] 1 AC 1)"
In The Commissioner of Police v Tanos (1958) 98 CLR 383 at 395 Dixon CJ and Webb J said:
“…it is a deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard”.
In Lednar & Ors and Magistrates’ Court & Anor [2000] VSC 549 Gillard J set out the rules of natural justice, which includes the hearing rule, audi alteram partem. This requires proper notice to be given to the person whose interests will be affected by an adverse decision and a fair opportunity to be heard.
In Kioa v West (1985) 159 CLR 550 Brennan J said of natural justice at 612:
“The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power. The variable content of the principles of natural justice was articulated by Tucker L.J. in an oft-cited passage in his judgment in Russell v. Duke of Norfolk [1949] 1 All ER 109, at p 118:
‘The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.’
In the Privy Council that passage was cited with approval in University ofCeylon v. Fernando [1960] 1 All ER 631 and again in Furnell v. WhangareiHigh Schools Board [1973] AC 660 where Lord Morris of Borth-y-Gest said, at p 679:
‘Natural justice is but fairness writ large and juridically. It has been described as “fair play in action”.’
…
Again in Salemi [No.2] Stephen J. in his dissenting judgment (at p.444) said of the principles of natural justice:
‘… not only will their effect and application thus vary depending upon the character and function of the particular statutory tribunal or person in relation to whose deliberations they are invoked (Ridge v. Baldwin [1964] AC 40, at pp. 65, 72 per Lord Reid), they may also vary from case to case although each be conducted before one and the same tribunal or person.’
Gibbs C.J. added to this line of authority in National Companies and Securities Commission v. News Corporation (1984) 156 CLR at p. 311, saying:
‘The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.’"
The use of technological advances in the conduct of civil litigation is to be encouraged where there can be significant savings as to both time and cost, whilst ensuring that all parties have a reasonable opportunity to partake in proceedings. We strongly endorse the remarks of Balcombe LJ in Henderson v SBS Realisations Ltd (unreported, English Court of Appeal, 13 April 1992) where his Lordship said that:
“…this Court should be very loathe to construe the statutory provisions relating to jurisdiction or so to exercise its powers under the rules as to preclude the use of technological improvements which the law ought to be minded to accept wherever possible.”
The use of video link facilities is increasing. The technology, whilst not without limitations, appears adequate to ensure a reasonable opportunity for a party, remote from the court room, to be able to properly partake in the proceedings. There may of course be a diminution in the ability to detect the subtle nuances referred to by Dr Scutt, but these are factors that need to be weighed in the balance when assessing a venue application. They are not decisive factors.
In Laporte Group Australia Ltd v Vatselias & Ors (unreported, Supreme Court of New South Wales, 25 November 1991) Young J accepted that power to order the taking of evidence by video conferencing flowed from s 76A of the Supreme Court Act 1970 (NSW), which allows the court to give “such directions as the Court thinks fit… for the speedy determination of the real questions between the parties to civil proceedings”.
In Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (unreported, Supreme Court of NSW, 11 March 1997) Giles J remarked that:
“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] because of delays in voice transmission… and the effectiveness of cross-examination as a weapon in the fight for truth should not be unduly hindered… 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… the taking of video evidence can be beneficial to the administration of justice… it may permit the Court to receive the evidence of a witness which would otherwise not have been available.”
The appellant argues that being “present” in court through the medium of a video conferencing system is not the same as being “physically present” in court. In United States of America v Baker 45 F.3d 837 (4th Cir. 01/25/1995) Circuit Judges Russell, Widener and Hall, said when dealing with an argument that an accused had the right to be physically present during committal proceedings:
“[52] …the video conference procedure does not preclude the respondent from confronting and conducting relevant cross-examination of the witnesses. Moreover, the use of video conferencing allows for the respondent's ‘presence’, at least in some sense, at the commitment hearing. The only question is the extent to which the video conferencing procedure preserves the essence of these rights sufficiently so as to conform with the strictures of due process.
…
[63] [the respondent claims that video conferencing] undermines the ability of the respondent to make a favorable impression upon the court, and, thereby, his ability to present an effective defense: he claims, first, that the respondent's ability to understand and appreciate the purpose and significance of the hearing is impaired, and, second, that the respondent's confidence in the hearing's impartiality and fairness is undermined.
[64] We are not persuaded. We agree with the district court that, contrary to respondent's contention, the district Judge's impression of the respondent is not generally the factor upon which a commitment decision turns. Rather, the Judge is more likely to be swayed by documentary and testimonial evidence of the respondent's mental competency. This is true in a civil commitment hearing as opposed to a criminal trial because, as discussed above, a commitment hearing is not so concerned with factfinding as is a criminal trial.
…
[68] [the respondent] next claims that the video conferencing system impedes counsel's ability to present an effective defense, thereby impinging the respondent's right to effective assistance of counsel…
[69] In addition to losing a personal, immediate connection with the court, the respondent's lawyer will be compromised in his ability to gauge the effectiveness of his argument and to intuitively sense the court's level of interest or areas of concern. This information can only be learned by being in the same room as the party you are addressing.
...
[71] We are not persuaded. The complaints [the respondent] raises about defense counsel's ability to function go to counsel's ability to ascertain the facts on direct and cross-examination by gauging a witness and reaching, in an ‘emotionally acute’ way, the factfinder. As described above, factfinding, in this sense, is not an essential part of a civil commitment hearing. Thus, we do not believe that the fact that a commitment hearing has been conducted by video conference makes the assistance of an advisor which the commitment respondent received ineffective as a matter of law. Nor can we characterize as clearly erroneous the district court's finding that, here, [the respondent’s] counsel provided effective representation. As the court below observed, while defense counsel may have a decided preference for arguing in the courtroom directly before the Judge, that does not reflect on the constitutionality of video conferencing.”
Whilst the remarks in Baker regarding the role of a judge dealing with committal proceedings are not entirely apposite to a judge dealing with an application for a parenting order (where fact finding based upon impressions gained from witnesses may be an important element) nonetheless the recognition that video link technology can still provide a modicum of a fair hearing is significant.
In his written argument the appellant claimed the use of video link is discriminatory because the system is likely to break down, as it has a number of times in prior proceedings. In McDonald v Commissioner Of Taxation [2000] FCA 577 there was a claim that there had been a denial of procedural fairness when a witness was required to give evidence by video link for some hours in circumstances where there was a break in transmission during the evidence. Finn J said:
“[20] The break in transmission was, in my view, of no practical consequence and can be disregarded. It is accepted that the Tribunal is entitled to make use of modern technologies including video-links when obtaining evidence in a hearing before it. It equally is accepted that the Tribunal is obliged to observe the rules of natural justice. The short question here is whether those rules were breached in [this] case. In my view there is no proper basis here for saying they were.
[21] …the video-link facility is being utilised with greater regularity and acceptance in court proceedings…as judges have come to acknowledge that apprehended disadvantages from the use of video-links have not materialised as expected….
[22]… judges have accepted in relation to trials that a video-link is, for practical purposes, much the same as hearing evidence in court.”
Butterworths Australian Legal Dictionary defines “discrimination” as:
“Any distinction, exclusion, restriction, or preference made on a particular basis, such as race, sex, religion, national origin, marital status, pregnancy, or disability, which has the purpose or effect of nullifying or impairing the recognition, enjoyment, or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural, or any other field of life.”
The Human Rights and Equal Opportunity Commission Act 1986 (Cth) established the Human Rights and Equal Opportunity Commission (HREOC). HREOC administers the Sex Discrimination Act 1984, Racial Discrimination Act 1975 and Disability Discrimination Act 1992, as well as the Human Rights and Equal Opportunity Commission Act 1986.
In Part I, s 3 of the Human Rights and Equal Opportunity Commission Act 1986 “discrimination” is defined as:
"(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
(b)any other distinction, exclusion or preference that:
(i)has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
(ii)has been declared by the regulations to constitute discrimination for the purposes of this Act;
but does not include any distinction, exclusion or preference
(c)in respect of a particular job based on the inherent requirements of the job; or
(d) in connection with employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, being a distinction, exclusion or preference made in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or that creed.”
We do not perceive that there is any sense “unlawful discrimination” in determining that a trial of a civil action, instigated by the appellant, should take place at a venue which, because of the appellant's incarceration, will mean that he can only be present by way of video link. There are many factors that preclude parties from attending hearings in person. They may be related to health, finance, or other factors such as child care responsibilities, which preclude travel. Where the Court has to weigh up competing claims of hardship, as it did in this case, and decide on a venue which is more convenient to one party than another, the outcome is not discriminatory in any legal sense. There is no "distinction, restriction, exclusion or preference" being made or given because of the appellant's status as a prisoner. There is merely a choice being made, in accordance with the Rules of Court, as to where a hearing should take place.
As an alternative to requiring the trial to take place at Hobart, the appellant argues that if he must present his case by video link, then the respondents should also present their case by video link so as to avoid any discrimination, and accordingly the trial itself should take place somewhere in Australia other than Adelaide. No such submission was put to Robinson J and there is no basis for us to consider it now, given that we find no error in her approach. In any event such an outcome would make little sense other than to give an illusory appearance of a "level playing field". It would create extra expense in that an extra video link would need to be established. If the respondents chose to bring themselves, their counsel or their witnesses to the "neutral" venue, the Court could not refuse to hear them nor could it bar their attendance.
The balance of the grounds of appeal that do not touch upon discrimination, insofar as they make any sense, really go to matters of weight. As previously stated we see no error of approach by the trial Judge, no reliance on impermissible matters, no undue weight being given to one factor over and above another, and certainly no manifestly unjust result.
For these reasons we dismissed the appeal.
I certify that the 36 preceding
paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.
Elizabeth Hore
Associate