Kanan v Australian Postal and Telecommunications Union

[1992] FCA 366

-

JUDGMENT No. ..3.6..k .... 142 ,,",

IN THE FEDERAL COURT OF AUSTRALIA	)
I
VICTORIA DISTRICT REGISTRY	) VG NOS 208 and 209 of 1991 )
GENERAL DIVISION	)

BETWEEN: I.C.I. AUSTRALIA LTD

(Applicant)

AND :

(Respondent)

Coram:	Rvan J
Date:	29 May 1992
Place:	Melbourne
Rvan J:	In this matter the applicant seeks an order under

0 .24 r.lA of the Rules of this Court permitting the cross-

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