examination of Christopher Hampson, a former managing director
of the applicant, to take place by video link with London.
That video link, I am told, has been arranged for 5 pm,
Australian eastern standard time, next Tuesday, 2 June 1992.
The trial of the application has been fixed to commence on 1

June next and is estimated to occupy five days.

Mr Hampton physically present in court for cross-examination

Counsel for the respondent Commissioner has opposed the application on the grounds that Mr Hampson is a critical witness as to the applicant's intentions in entering into the transaction which is said to have led to the applicant's incurring a very substantial liability for tax. The amount of that liability is, in the vicinity, I have been told, of $34 million. Accordingly, it has been submitted that the Commissioner should not be deprived of the opportunity to have

and for his credit to be assessed by the court without the

possibly distorting effect of video transmission.

I consider on balance that it is appropriate to exercise the
discretion conferred by 0.24 r.lA by acceding to the
application. The factors which have led me to that conclusion
include the fact that Mr Hampson's evidence-in-chief has been
received by affidavit, as has that of other witnesses relied
on by the applicant. Moreover, he is one of only several
witnesses whose testimony is directed to the applicant's
intention. I have, on another occasion, had the advantage of
a demonstration of the examination of a witness by video link
and I do not consider that Mr Hampson's physical remoteness
from Melbourne will unduly disadvantage either cross-examining
counsel or the Court in assessing his credibility in
conjunction with that of other witnesses who will, of course,
be cross-examined in the usual way being physically present in

Melbourne.

I have also had regard to the delay in the hearing and

possible determination of this matter if it should require to

be adjourned to arrange for Mr Hampson to come to Melbourne at

some time after next week. I am not unmindful of the expense

which that travel would involve. As well, there would be
considerable disruption to the Court's schedule if it were

necessary to accord this matter further hearing days after

those which have been assigned to it during next week. I

might say in passing that those dates were assigned,
apparently without any demur by the solicitor for the
Commissioner, although it was, I gather, then known that the
applicant proposed that Mr Hampson's cross-examination should
be taken by video link if the Court were persuaded to accede
to that course.

Finally, I am influenced by the consideration which weighed with Morritt J in Garcin v Amerindo Investment Advisors Ltd [l9911 1 WLR 1140 at 1145 in concluding that if the expedient

of resort to video link should prove unsatisfactory or if the
trial judge should feel that he would be disadvantaged in
assessing Mr Hampson's credit, arrangements can still be made
at some time after next week for Mr Hampson to be further
cross-examined in Melbourne on some subsequent date.

For these reasons, as I have indicated, I accede to the application. I shall make an order permitting the cross- examination of Mr Hampson to take place by video link pursuant to 0.24 r.lA and I shall further order that the costs of both parties of this day be costs in the cause.

I certify that this and the preceding
two (2) pages are a true copy of the
Reasons for Judgment herein of his
Honour Mr Justice Ryan.

Associate: a

Date : 29 M&Y 1992

Counsel for the Applicant: Mr J Merralls QC
Mr T Murphy

Solicitor for the Applicant: Mallesons Stephen Jaques

Counsel for the Respondent: Mr G Davies

Solicitor for the Respondent: Australian Government Solicitor

Details

AGLC: Kanan v Australian Postal and Telecommunications Union [1992] FCA 366
Case: [1992] FCA 366
Decision Date: 29 May 1992

CaseChat Overview and Summary

In the Federal Court of Australia, specifically the Victoria District Registry, I.C.I. Australia Ltd, as the applicant, sought an order to permit the cross-examination of Christopher Hampson, the former managing director, to take place by video link from London. The matter involves a significant tax liability of approximately $34 million that the applicant had incurred. The respondent, the Commissioner, opposed the application, arguing that Hampson's presence in court was crucial for assessing his credibility and that of other witnesses. The applicant argued that the use of video link technology would allow for the trial to proceed without undue delay or expense.

The legal issue before the court was whether to exercise its discretion under Rule 24 of the Federal Court Rules to permit the cross-examination of a critical witness via video link. The applicant's primary argument was the potential delay and cost associated with Hampson travelling to Melbourne for cross-examination. The respondent contended that the absence of Hampson could impede the court's ability to assess his credibility and the credibility of other witnesses. The court considered the procedural fairness, the necessity of the witness, and the potential for technological solutions to mitigate any disadvantages.

Justice Ryan, after considering the arguments of both parties, determined that it was appropriate to exercise the discretion conferred by Rule 24. The court found that Hampson's evidence had already been received by affidavit, and he was one of several witnesses whose testimony was relevant to the applicant's intention. The judge also took into account the judge's prior experience with video link examinations and the possibility of further cross-examination in Melbourne if needed. The decision was influenced by the potential delay, cost, and disruption to the court's schedule if Hampson were required to travel to Melbourne. The judge concluded that the use of video link technology would not unduly disadvantage the respondent or the court in assessing Hampson's credibility.

The court ordered that the cross-examination of Hampson be permitted to take place by video link. The costs of both parties for the day were to be costs in the cause.

Orders