Keyamo v Silver Lakes (Deflector) Pty Ltd

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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

  1. These reasons concern the question of whether there should be an order pursuant to s.201 of the Federal Circuit and Family…

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Details
Case
[2022] FedCFamC2G 984
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Keyamo v Silver Lakes (Deflector) Pty Ltd concerned an application by the respondent to allow three of its witnesses to give evidence via video link at the trial. The applicant, Benz Ediru Keyamo, opposed the application, arguing that it would not provide a fair trial and that the respondent had not provided concrete reasons for its request. The legal issues before the court were whether the court should grant the respondent's application under s.201 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to allow the witnesses to give evidence via video link.

The court considered the discretionary power in ss. 201, 202, 203 and 204 of the FCFCOA Act, which must be exercised in a manner that is as informal as possible, not protracted in its proceedings, and resolves proceedings justly, efficiently and economically. The court also considered the importance of the evidence of the decision-maker being given in person in cases of this kind. The court noted that the respondent had tried to get the applicant's agreement to its request and had set out the personal, professional and logistical circumstances for the three witnesses in its application.

The court concluded that the matter should remain in the current registry and be heard in a hybrid manner utilising an online platform for those of the respondent's witnesses located in Western Australia. The court found that the applicant had already filed an affidavit setting out his reasons for opposing the order sought by the respondent and that the applicant's objections were, in parts, difficult to follow. The court also found that the applicant had proved able to navigate the Microsoft Teams platform, and that the respondent's witnesses had known about the trial date for months.

The court granted the respondent's application, and ordered 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 that the respondent's solicitors make all necessary arrangements for them to do so via Microsoft Teams. The court noted that the decision-maker, Mr Vemer, who signed the applicant’s letter of termination and is the General Manager for the respondent’s site where the applicant worked, would attend personally.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 linksVideo 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.