Keyamo v Silver Lakes (Deflector) Pty Ltd
[2022] FedCFamC2G 984
Federal Circuit and Family Court of Australia
(DIVISION 2)
Keyamo v Silver Lakes (Deflector) Pty Ltd [2022] FedCFamC2G 984
File number(s): MLG 337 of 2022 Judgment of: JUDGE O'SULLIVAN Date of judgment: 24 November 2022 Catchwords: PRACTICE AND PROCEDURE – evidence by video link – exercise of discretion to grant – applicable discretionary factors. Legislation: Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth), s.184, 201, 202, 203, 204
Federal Court of Australia Act 1976 (Cth)
Cases cited: Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504
Board of Bendigo Regional Institute of Technical & Further Education v Barclay & Anor [2012] HCA 32; (2012) 248 CLR 500
Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486
Goodall v Nationwide News Pty Limited [2007] FMCA 218
Roberts-Smith v Fairfax Media Publications Pty Limited (No 4) [2020] FCA 614
Southernwood v Brambles Limited(No 2) [2022] FCA 973
Tetley v Goldmate Group Pty Ltd [2020] FCA 913.
Division: Division 2 General Federal Law Number of paragraphs: 22 Date of last submission/s: 18 November 2022 Date of hearing: On the papers in Chambers Appearance for the Applicant: Self-Represented Solicitor for the Respondent: DLA Piper Australia ORDERS
MLG 337 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BENZ EDIRU KEYAMO
Applicant
AND: SILVER LAKES (DEFLECTOR) PTY LTD
Respondent
order made by:
JUDGE O'SULLIVAN
DATE OF ORDER:
24 November 2022
THE COURT ORDERS THAT:
1.Pursuant to s.201 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), that the respondent’s witnesses, who reside in Western Australia, being Sarah Hardiman, Philip Stevenson and Lachlan Rankin, shall give all of their evidence via video link at the trial commencing 20 February 2023, and the respondent’s solicitors make all necessary arrangements for them to do so via Microsoft Teams and ensure they have been provided with a copy of the note from the Court entitled ‘Guidance for Attendance of a Witness at a Court Hearing by Video Link to give Evidence’.
2.The respondent’s application in a proceeding filed 14 November 2022 be otherwise dismissed.
AND THE COURT NOTES THAT:
A.The matter remains listed for trial on 20 February 2023 commencing at 10:00am (with an estimated hearing time of 2 days) at the Federal Circuit and Family Court of Australia in Melbourne.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Introduction
These reasons concern the question of whether there should be an order pursuant to s.201 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) permitting certain of the respondent’s witnesses in these proceedings to give evidence via video link.
Background
It is necessary to set out some of the history by way of background to the present application in a proceeding. The substantive proceedings are proceedings under the Fair Work Act 2009 (Cth) (“FW Act”) alleging a contravention of (inter-alia) Part 3.1 of the FW Act. The proceedings were commenced by Benz Ediru Keyamo (‘the applicant’) who filed an application on 9 February 2022 alleging Silver Lake (Deflector) Pty Ltd (‘the respondent’) had taken action against him in contravention of Part 3.1 of the FW Act. In its response filed 15 March 2022, the respondent denied the allegation and sought that the application be dismissed.
It is uncontroversial that the applicant signed on to work for the respondent at its Deflector site in regional Western Australia on 13 November 2021 and that his employment was terminated on 29 November 2021.
After the substantive proceedings had been the subject of an unsuccessful mediation, the matter returned to Court for a directions hearing on 16 August 2022 and was fixed for trial to begin on 20 February 2023 with orders and directions made for that purpose (including reserving liberty to apply). Subsequently, and pursuant to that liberty, the respondent sough to raise the issue, the subject of these reasons, with the Court via email. The matter was then listed for mention on 10 November 2022 and the following orders were made:
1.By 4:00pm on 14 November 2022, the respondent file and serve an application in a proceeding supported by an affidavit for an order under s.201 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.By 4:00pm on 18 November 2022, the applicant file and serve a response and anything in reply (over and above the affidavit filed on 3 November 2022).
3.Thereafter, the decision on the application in a proceeding be reserved and considered on the papers in Chambers.
APPLICATION IN A PROCEEDING
In accordance with the directions referred to above on 14 November 2022, the respondent filed an application in a proceeding seeking an order pursuant to s.201 of the FCFCOA Act that the respondent’s witnesses who reside in Western Australia, being Sarah Hardiman, Philip Stevenson and Lachlan Rankin, shall give all of their evidence via video link at the trial. The application in a proceeding was supported by an affidavit of a solicitor acting for the respondent, Joanne Leveridge sworn 14 November 2022.
The applicant had until 18 November 2022 to file anything in reply and the matter has been thereafter, considered on the papers in Chambers.
LEGISLATIVE PROVISIONS
Sections 201, 202, 203 and 204 of the FCFCOA Act provide as follows:
201 Testimony by video link or audio link
(1)The Federal Circuit and Family Court of Australia (Division 2) or a Judge may, for the purposes of any proceeding, direct or allow testimony to be given by video link or audio link.
(2)The testimony must be given on oath or affirmation unless:
(a) the person giving the testimony is in a foreign country; and
(b) either:
(i)the law in force in that country does not permit the person to give testimony on oath or affirmation for the purposes of the proceeding; or
(ii)the law in force in that country would make it inconvenient for the person to give testimony on oath or affirmation for the purposes of the proceeding; and
(c)the Federal Circuit and Family Court of Australia (Division 2) or a Judge is satisfied that it is appropriate for the testimony to be given otherwise than on oath or affirmation.
(3)If the testimony is given otherwise than on oath or affirmation, the Federal Circuit and Family Court of Australia (Division 2) or the Judge is to give the testimony such weight as the Federal Circuit and Family Court of Australia (Division 2) or the Judge thinks fit in the circumstances.
(4)The power conferred on the Federal Circuit and Family Court of Australia (Division 2) or a Judge by subsection (1) may be exercised:
(a) on the application of a party to the proceedings concerned; or
(b)on the Court's own initiative or on the Judge's own initiative, as the case may be.
(5)This section applies whether the person giving testimony is in or outside Australia, but does not apply if the person giving testimony is in New Zealand.
202 Appearance of persons by video link or audio link
(1)The Federal Circuit and Family Court of Australia (Division2) or a Judge may, for the purposes of any proceeding, direct or allow a person to appear before the Federal Circuit and Family Court of Australia (Division 2) or the Judge by way of video link or audio link.
(2)The power conferred on the Federal Circuit and Family Court of Australia (Division 2) or a Judge by subsection (1) may be exercised:
(a) on the application of a party to the proceedings concerned; or
(b)on the Court’s own initiative or on the Judge's own initiative, as the case may be.
(3)This section applies whether the person appearing is in or outside Australia, but does not apply if the person appearing is in New Zealand.
203 Making of submissions by video link or audio link
(1)The Federal Circuit and Family Court of Australia (Division 2) or a Judge may, for the purposes of any proceeding, direct or allow a person to make a submission to the Federal Circuit and Family Court of Australia (Division 2) or the Judge by way of video link or audio link.
(2)The power conferred on the Federal Circuit and Family Court of Australia (Division 2) or a Judge by subsection (1) may be exercised:
(a) on the application of a party to the proceedings concerned; or
(b) on the Court's own initiative or on the Judge's own initiative, as the case may be.
(3)This section applies whether the person making the submission is in or outside Australia, but does not apply if the person making the submission is in New Zealand.
204 Conditions for use of video links and audio links
Video link
(1)The Federal Circuit and Family Court of Australia (Division 2) or a Judge must not exercise the power conferred by subsection 201(1), 202(1) or 203(1) in relation to a video link unless the Federal Circuit and Family Court of Australia (Division 2) or the Judge is satisfied that the following conditions are met in relation to the video link:
(a)the courtroom or other place where the Federal Circuit and Family Court of Australia (Division 2) or the Judge is sitting is equipped with facilities (for example, television monitors) that enable all eligible persons present in that courtroom or place to see and hear the person (the remote person ) who is:
(i) giving the testimony; or
(ii) appearing; or
(iii) making the submission;
as the case may be, by way of the video link;
(b)the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom or other place where the Federal Circuit and Family Court of Australia (Division 2) or the Judge is sitting;
(c)such other conditions (if any) as are prescribed by the Rules of Court in relation to the video link;
(d)such other conditions (if any) as are imposed by the Federal Circuit and Family Court of Australia (Division 2) or the Judge.
(2)The conditions that may be prescribed by the Rules of Court in accordance with paragraph (1)(c) include conditions relating to:
(a) the form of the video link; and
(b) the equipment, or class of equipment, used to establish the link; and
(c) the layout of cameras; and
(d) the standard of transmission; and
(e) the speed of transmission; and
(f) the quality of communication.
Audio link
(3)The Federal Circuit and Family Court of Australia (Division 2) or a Judge must not exercise the power conferred by subsection 201(1), 202(1) or 203(1) in relation to an audio link unless the Federal Circuit and Family Court of Australia (Division 2) or the Judge is satisfied that the following conditions are met in relation to the audio link:
(a)the courtroom or other place where the Federal Circuit and Family Court of Australia or the Judge is sitting is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that courtroom or place to hear the person (the remote person ) who is:
(i) giving the testimony; or
(ii) appearing; or
(iii) making the submission;
as the case may be, by way of the audio link;
(b) the place at which the remote person is located is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that place to hear each eligible person who is present in the courtroom or other place where the Federal Circuit and Family Court of Australia (Division 2) or the Judge is sitting;
(c) such other conditions (if any) as are prescribed by the Rules of Court in relation to the audio link;
(d)such other conditions (if any) as are imposed by the Federal Circuit and Family Court of Australia (Division 2) or the Judge.
(4)The conditions that may be prescribed by the Rules of Court in accordance with paragraph (3)(c) include conditions relating to:
(a) the form of the audio link; and
(b)the equipment, or class of equipment, used to establish the audio link; and
(c) the standard of transmission; and
(d) the speed of transmission; and
(e) the quality of communication.
Eligible persons
(5)For the purposes of the application of this section to a particular proceeding, eligible persons are such persons as the Federal Circuit and Family Court of Australia (Division 2) or a Judge considers should be treated as eligible persons for the purposes of that proceeding.
The analogous provisions of the Federal Court of Australia Act 1976 (Cth) and the cases on that issue were considered in Southernwood v Brambles Limited (No 2) [2022] FCA 973 at paragraphs [27] to [43].
THE RESPONDENT’S POSITION
The respondent seeks that only three of its witnesses be given leave to give evidence by video link. Ms Leveridge’s affidavit set out the personal and professional circumstances of each of those witnesses and that one of them was no longer employed by the respondent. Ms Leveridge’s affidavit also set out the costs that would be occasioned should those witnesses be required to attend in person and that attendance via Microsoft Teams could be easily facilitated for all three by the respondent’s solicitors.
THE APPLICANT’S POSITION
The applicant had already filed an affidavit setting out his reasons for opposing the order sought by the respondent on 3 November 2022. The applicant, in a further affidavit filed 18 November 2022, said Ms Hardiman was a “witness with proximity to the adverse termination” of his employment and “a short time evidence at trial is highly unlikely”. The applicant also said Mr Stevenson “who made the decision to adversely terminate” his employment “should be present in person/public before the Court at trial”. The applicant said that the respondent’s witnesses had known about the trial date for months. The applicant took issue with the costs for respondent’s witnesses to attend and claimed the respondent had not provided any “concrete genuine reasons” for its request.
CONSIDERATION
Under the legislation and rules governing its operation the Federal Circuit and Family Court of Australia (Division 2) is intended to operate in a manner:
(a)as informal as possible in the exercise of judicial power;
(b)which is not protracted in its proceedings;
(c)which resolves proceedings justly, efficiently and economically;
(d)uses streamlined procedures; and
(e)avoids undue delay, expense and technicality.
It is in this context that the discretionary power in ss. 201, 202, 203 and 204 of the FCFCOA Act must be exercised.”[1]
[1]Goodall v Nationwide News Pty Limited [2007] FMCA 218 (“Goodall”) at paragraphs [20]-[22] per Lucev FM.
The respondent had tried to get the applicants’ agreement to its request. The evidence relied on by the respondent set out the personal, professional and logistical circumstances for three witnesses and why it made this application. The applicant is unrepresented and opposed the respondent’s application saying inter alia it would not give him a “fair trial/proceedings”. The applicant’s objections given the nature of the respondent’s application were in parts difficult to follow. Examples of this included where he said that the respondent had “shown no genuine interest in mitigating cost with respect to the matter” and this was a “national court”.
Since 2020, cases have considered whether it is appropriate to run hearings using digital technology: Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 (“Capic”); Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504 (“GetSwift”); Roberts-Smith v Fairfax Media Publications Pty Limited (No 4) [2020] FCA 614; Tetley v Goldmate Group Pty Ltd [2020] FCA 913.
The Court notes the importance of the evidence of the decision-maker being given in a case of this kind: Board of Bendigo Regional Institute of Technical & Further Education v Barclay & Anor [2012] HCA 32; (2012) 248 CLR 500; at [41]-[45] per French CJ and Crennan J. However, in this case Mr Vemer, who signed the applicant’s letter of termination and is the General Manager for the respondent’s site where the applicant worked will attend personally and the other witnesses can give evidence via Microsoft Teams.
As noted in Capic and GetSwift, Microsoft Teams often gives the Court a clearer view of witnesses than experienced in a normal court setting. To that end, the Court is of the view that proceeding by Microsoft Teams will not diminish the Court’s ability to make any credibility findings. It is also noted that the use of Microsoft Teams has been described as a less formal type of proceeding: Capic at [19]. This “informality” will arguably assist the applicant who has demonstrated an ability to conduct his case on the two occasions the matter has been before the Court for directions via Microsoft Teams.
Pursuant to s.190(2)(e) of the FCFCOA Act, the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute is one of the objectives of the overarching purpose of the civil practice and procedure provisions. In my view adopting a hybrid approach by allowing those three witnesses to give evidence via Microsoft Teams would facilitate that purpose.
Therefore, having regard to the evidence before the Court on the matters relevant to the application in a proceeding, being satisfied about the relevant matters in s.204 and that the discretionary issues referred to in the authorities[2] do not weigh against the application there will be an order pursuant to s.201 of the FCFCOA Act that the respondent’s witnesses resident in Western Australia, being Sarah Hardiman, Philip Stevenson and Lachlan Rankin, shall give all of their evidence via Microsoft Teams at the trial commencing 20 February 2023.
[2] Goodall at paragraph [29] per Lucev FM.
Finally, the alternative order sought in the application in a proceeding appears to be added very much as an after-thought. The respondent’s ‘alternative order’ referred (incorrectly) to s.65 rather than s.184 of the FCFCOA Act. Due both to the advances in technology but also to the exigencies of the recent pandemic, principles pertaining to a change of venue take on a different hue today. The COVID-19 pandemic changed the way that the world, but more specifically the Court, undertakes its business. The recent Special Measures Information Notice-Hearing Protocol issued on 4 November 2022 makes clear the Court will continue to use both in person and electronic hearings.
In relation to venue, given that the parties were in different parts of Australia, that the Court is a national Court, and that the trial would in any event, for the reasons set out above, be utilising the Microsoft Teams platform, the point of considering the alternative order for transfer was moot.
Nonetheless, the matter should remain in the current registry and be heard in a hybrid manner utilising an online platform (i.e. Microsoft Teams) for those of the respondent’s witnesses located in Western Australia, and it is my view in relation to each of the factors[3] which include the convenience for the parties, the limitations of expense to them, the fact that this matter has been listed for a trial, the applicant commenced the proceedings in Victoria and has proved able to navigate the Microsoft Teams platform.
[3] see Gardner v Australian Health Practitioner Regulation Authority [2019] FCCA 968 at [33] to [38]
CONCLUSION
For those reasons there will be an order pursuant to s.201 of the FCFCOA Act that the respondent’s witnesses resident in Western Australia, being Sarah Hardiman, Philip Stevenson and Lachlan Rankin, shall give all of their evidence via video link at the trial commencing 20 February 2023, and the respondent’s solicitors make all necessary arrangements for them to do so via Microsoft Teams.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan. Associate:
Dated: 24 November 2022
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