Khalilidehkordi v Gold Coast Hospital and Health Service (No. 2)
[2024] QIRC 183
•26 July 2024
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Khalilidehkordi v Gold Coast Hospital and Health Service & Ors (No. 2) [2024] QIRC 183 |
PARTIES: | Khalilidehkordi, Elham v Gold Coast Hospital and Health Service And Dr Kee Meng Tan And The Royal Australian College of Physicians ACN 000 039 047 |
CASE NO: | GP/2021/25 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 26 July 2024 |
HEARING DATE: | 25 July 2024 |
MEMBER: HEARD AT: | Pidgeon, IC On the papers |
| ORDER: | 1. Pursuant to s 451(1) of the Industrial Relations Act 2016 (Qld), I direct that Professor Ostoja Vucic is granted leave to give evidence by video link at the hearing of GP/2021/25. |
| CATCHWORDS: | INDUSTRIAL LAW – application for Third Respondent's witness to give evidence by video link at hearing – where witness is a witness of credit – consideration of potential disadvantage to cross-examiner if witness does not appear in-person – consideration of whether it is in the interests of justice as between the parties – consideration of public interest – where Commission has discretion to grant leave – where leave is granted |
| LEGISLATION: | Industrial Relations Act 2016 (Qld) ss 447(2)(b), 451 Practice Direction 8 of 2021 – Taking Evidence by Telephone or Video Link |
CASES: | Auken Animal Husbandry v Pty Ltd v 3rd Solution Investment Pty Ltd [2020] 147 ACSR 521 Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 Loveridge v State of Queensland (Department of Health, Queensland Ambulance Service) [2021] QIRC 349 |
Reasons for Decision
Introduction
The substantive application in this matter is an application for the Commission to deal with a General Protections dispute ('the Substantive Matter'), filed in the Industrial Registry on 1 October 2021. The Substantive Matter is listed to be heard over six-days in March 2025.
The Royal Australian College of Physicians ('the Third Respondent') has requested leave for one if its witnesses, Professor Ostoja Vucic ('the witness'), to be excused from appearing in-person to give evidence at the hearing of the Substantive Matter in March 2025. The Applicant objects to the witness being permitted to appear remotely. The First and Second Respondents do not oppose the request.
Relevant legislative provisions and practice direction
Practice Direction 8 of 2021 – Taking Evidence by Telephone or Video Link ('Practice Direction 8') relevantly provides:
General
1. Evidence by telephone will only be taken from expert witnesses and on formal and uncontroversial matters. Telephone evidence will not be taken where credibility is in issue.
2. Evidence by telephone or video link may be given on that the discretion of the Member.
The purpose of Practice Direction 8 is stated as:
The purpose of this Practice Directions is to:
· to ensure that all parties are aware of the approach to the taking of evidence by telephone and/or video link in the ordinary case;
· to streamline the taking of evidence by these means;
· to avoid delay and disruption; and
· to maintain the decorum of the proceeding.
Section 447(2)(b) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides:
447 Commission's functions
…
(2) The commission must perform its function in a way that –
…
(b) avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under this Act.
Section 451 of the IR Act sets out:
451 General powers
(1)The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
(2)Without limiting subsection (1) – the commission in the proceeding may:
(a)give directions about the hearing of a matter; or
(b)make a decision it considers appropriate, irrespective of the relief sought by a party; or
(c)make an order it considers appropriate.
Legal Principles
In Loveridge[1], Hartigan IC, as she then was, considered a request to give evidence by video link and adopted the principles expressed in Auken[2] as "guiding principles for the exercise of discretion in this matter"[3]:
28. I respectfully agree with and adopt what was said by Flick J in Australian Competition and Consumer Commission v Pirovic Enterprises Pty Ltd, namely that in deciding whether or not to allow AVL evidence:
The overriding consideration must, however, forever remain what is considered by the Court to be In the best interests of the administration of justice, including the need to ensure that justice is done between the parties.
29. His Honour also said (at [11]) that the exercise of the discretion conferred by s 47A(1) of the Act must unquestionably be guided by the facts and circumstances of the individual case in which permission is sought to adduce evidence by way of AVL.
30. I also respectfully agree with and adopt what was said by Jackson J in Australian Securities and Investments Commission v Wilson at [36] that the process of deliberation required in order to exercise the s 47A(1) discretion properly is accurately described as a balancing exercise.
[citations omitted] [4]
[1] Loveridgev State of Queensland (Department of Health, Queensland Ambulance Service) [2021] QIRC 349 ('Loveridge').
[2]Auken Animal Husbandry Pty Ltd v 3rd Solution Investment Pty Ltd [2020] 147 ACSR 521] ('Auken').
[3] Loveridge (n 1) [20].
[4]Auken (n 2) [28]-[30] cited with approval in Loveridge (n 1) [19].
Why does the Third Respondent make the request for Professor Vucic to give evidence by video link?
This hearing was originally listed to occur from 22 – 29 February 2024. At that time, the grounds of the Third Respondent’s request for Professor Vucic to give evidence by video link were set out in the Affidavit of Rachael Malarowski sworn on 14 February 2024. At the directions hearing on 25 July 2024, the Commission heard that Ms Malarowski had very recently been in contact with Professor Vucic who confirmed that the circumstances set out in that affidavit remain true and correct with respect to the forthcoming hearing dates in March 2025.
Professor Vucic lives and works in Sydney and is employed by the Sydney Local Health District.[5] The Third Respondent submits that his attendance in-person at the hearing in Brisbane would necessitate him seeking approval for a full-day of leave from his employment to facilitate his travel to Brisbane for attendance at the Commission.[6]
[5] Submissions of the Third Respondent filed 25 July 2024 [5] – [6].
[6] Ibid [6].
Professor Vucic holds two roles, that of Neurologist at Sydney’s Concord Repatriation General Hospital ('the Concord Hospital') and as a clinical academic, translational researcher and professor of neurology at the University of Sydney.[7]
[7] Ibid [7].
In his role at the Concord Hospital, Professor Vucic is directly involved in busy and highly specialised clinics. It is the submission of the Third Respondent that these clinics cannot be covered by other staff and are scheduled throughout the dates of the hearing in March 2025. The Third Respondent submits that it is not within Professor Vucic’s purview to cancel or delay the clinics.[8]
[8] Ibid [8].
In circumstances where patients with terminal and debilitating diseases often have extensive wait times to get an appointment at one of Professor Vucic’s clinics, his attendance in-person in Brisbane for the hearing would preclude him from performing his clinical duties at the afternoon clinic, impacting patient care. It is the submission of the Third Respondent that this would compromise the health of and delay the medical management of neurology patients with fatal and debilitating diseases.[9]
[9] Ibid [9] – [10].
The Third Respondent submits that Professor Vucic does not seek to circumvent his obligation to give evidence in-person for reasons of personal convenience, but rather, out of a concern for the health and wellbeing of seriously and terminally ill patients.[10]
Why does the Applicant oppose the granting of leave for Professor Vucic to give evidence by video link?
[10] Ibid [15].
Practice Direction 8 states that "evidence by telephone will only be taken from expert witnesses and on formal and uncontroversial matters".[11] The Applicant notes that there is controversy about Professor Vucic’s evidence[12] and, it follows that there should be "cogent and highly persuasive evidence to justify overriding the practice direction".[13]
[11] Practice Direction 8 of 2021 – Taking Evidence by Telephone or Video Link [1].
[12] Submissions of the Applicant filed in the Industrial Registry on 25 July 2024 [11].
[13] Ibid [12].
The Applicant asserts that the affidavit of Ms Malarowski is "neither cogent, nor persuasive"[14] as there is no explanation as to why Professor Vucic did not swear to the matters himself. Further, regarding the matters set out in the affidavit regarding the afternoon clinic Professor Vucic provides, the Applicant makes the following submissions:
…
c. It is said that Professor Vucic will need the consent of his employer to attend, but there is no evidence that his employer might not give that consent;
d. There is no evidence that the "specialised clinics" for which Professor Vucic is apparently indispensable, are set for the days upon which the hearing is now scheduled or, specifically, when Professor Vucic may give evidence;
e. The Commission is entitled to infer that Professor Vucic takes holidays, is entitled to sick leave, attends conferences, and participates in work other than the "specialised clinics" (including participating in the Third Respondent's undertakings). Absent other evidence, there cannot be a finding that the "specialised clinics" will be affected by Professor Vucic's absence on the day he is to give evidence; and
f. In any event, the Commission must assume that his attendance to give evidence, even via videolink, is going to (potentially) disrupt some aspect of Professor Vucic's duties.[15]
[14] Ibid [14].
[15] Ibid [14(c)] – [14(d)].
The Applicant also submits that Professor Vucic’s evidence is central to the Applicant’s claim against the Third Respondent. The Applicant says it will be putting documents to Professor Vucic during its cross-examination, and that there will be a loss of forensic advantage if these documents are proffered to the witness ahead of time to facilitate him giving evidence by video link.[16]
Should the Commission exercise its discretion to permit Professor Ostoja Vucic to give evidence by video link?
[16] Ibid [15].
The Applicant has drawn my attention to cases which consider the giving of evidence by video link. It is no surprise, given that the granting of leave to lead evidence in this way is discretionary, that decision-makers have considered guiding principles such as those set out in Auken in the context of matters such as their own experience with the use of video-evidence and the factual circumstances of the matter before them.
I observe that the availability of equipment and the quality of video evidence has vastly improved over time. I also note that in, more recent times, there has been an increase in the use of video facilities at the Commission for both hearings and conciliation conferences. Clearly, the general rule is that parties and witnesses attend Commission hearings in-person. However, my own experience in hearing matters where key witnesses have given evidence by video (and in one instance, where Counsel appeared remotely while witnesses were present in the Commission), is that the process can function efficiently.
Further, I find that I am afforded a clearer and close up view of the witness’s face, and, in some instances, the witness is less distracted than they would otherwise be in the courtroom environment. I have found that, often, when a witness gives evidence via video link, it is more conducive to a greater focus on the questions being put to them. Making findings of credit and assessing the truthfulness of witnesses is a complex task, regardless of the form in which evidence is being led. I find that both representatives and decision-makers are becoming more accustomed to leading and hearing evidence by video link as the technologies that facilitate this to occur have become more advanced and accessible. While it is not the norm at the Commission, it is certainly commonplace in some other jurisdictions.
My experience has been that the gravity of giving evidence before the Commission is not lost on witnesses who attend hearings via video link. One of the few occasions where I have observed that this was not the case was where a witness was walking around on a worksite upon being called, which was remedied by briefly standing the matter down while the witness found a quiet location to give their evidence. In my experience, giving evidence by video link does not prevent Counsel or the Commission from reminding witnesses about the gravity of giving evidence where necessary.
To that extent, I appreciate the observations of Stewart J in Auken when referring to Campaign Master (UK) Ltd[17]and the views expressed by decision-makers in various other decisions in the context of technological progression:
[48] In my view, and experience, whilst there is certainly something to be said for all of the benefits identified by his Honour, times have significantly moved on in the last 10 years. The technology has got better, and judges and counsel have become far more accustomed to cross-examination by AVL. Particularly in the last four or so months when almost all of the work of this and other courts has necessarily been done remotely because of restrictions associated with the pandemic, the learning curve has been steep and the experience intense.
[49] My experience of having now conducted several remote (but no less real) hearings with rigorous cross-examination, including as to credit and on allegations of fraud, on the Microsoft Teams platform is similar to that of Perram J as expressed in Capic v Ford Motor Company of Australia Ltd [2020] FCA 486 at [19]–[20], viz. the judge stares at the witness from about one metre away such that their perception of the witness’s facial expressions is much greater than it is in court. To that I can add that cross-examining counsel has that similar benefit. My experience has been that well-prepared cross-examination can be as, or just about as, effective in a virtual setting. My impression has been that counsel, even those who were initially sceptical, have shared that experience.
[50] See also Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504 at [33] per Lee J, Tetley v Goldmate Group Pty Ltd [2020] FCA 913 at [16] per Bromwich J, Porter v Mulcahy & Co Accounting Services Pty Ltd [2020] VSC 430 at [26] per Delany J and Ascot Vale Self Storage Centre Pty Ltd (in liq) v Nom De Plume Nominees Pty Ltd [2020] VSC 242 at [19] per McDonald J. I acknowledge that there are different views on this question, the experience of some judges being less positive, eg Rooney v AGL Energy Ltd [2020] FCA 942 at [17]–[19] per Snaden J. See also other cases where AVL leave has been refused: Roberts-Smith v Fairfax Media Publications Pty Ltd (No 4) [2020] FCA 614 at [22] per Besanko J and Wilson at [29] and [37]–[39] per Jackson J.
[51] I accept that there can be a tendency amongst some participants to regard the occasion of a remotely conducted trial, or part of it, with less solemnity and formality than it deserves, and that that is undesirable and undermining of effective cross-examination. However, my experience is that a judge is able to quickly remind the relevant participants of the solemnity and formality of the occasion and to re-establish the appropriate atmosphere.
[Citations omitted][18]
[17] Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 ('Campaign Master (UK) Ltd')
[18] Auken (n 2) [48] – [51].
I note the remarks of Buchanan J in Campaign Master (UK) Ltd, to which Stewart J refers in the above passage regarding potential concerns of giving evidence via video link when he said:
I share the concerns expressed by Spender J in World Netscape and by Stone J in Dorajay about the limitation on the effectiveness of video link arrangements as a means of taking oral evidence. I am particularly troubled by the prospect (or possibility) that the cross-examination of an important witness might be rendered less effective by the limitations of video link technology or the absence of the witness from the courtroom. Although the days are gone when witnesses are expected to feel any sense of intimidation as an aid to telling the truth, there is no doubt in my mind that the requirement to give evidence on oath or affirmation in the (generally) solemn atmosphere of a courtroom in the presence of a judge, and to answer questions in cross-examination in the presence also of cross-examining counsel, has at least three potential benefits. It enhances the prospect that the witness will remain conscious of the nature and solemnity of the occasion and of his or her obligations. It affords the cross-examiner some reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party. It provides the court with a more satisfactory environment in which to assess the nature, quality and reliability of responses by a witness, both to questions and to the overall situation presented by the necessity to give evidence in court. To my mind there remains, even in the modern context, a certain "chemistry" in oral interchanges in a courtroom, whether between a judge and counsel (or other representative) or between cross-examiner and witness. I would not wish too lightly to deprive a cross-examiner of that traditional forensic element in the exchange although, as the cases universally make clear, the court must now, if asked to do so, balance the interests of a cross-examining party against claimed inconvenience both in individual cases and with respect to individual witnesses. Notwithstanding the increased availability and use of video link technology, in my view, a case must be made out for the use of video link evidence if it is opposed by an affected party…
[Citations omitted][19]
[19] Campaign Master (UK) Ltd (n 17) [78].
While, as his Honour notes in that passage, there are some "potential benefits" to witnesses appearing in-person, the particular focus of the concerns expressed in Campaign Master (UK) Ltd were in respect of the effectiveness of cross-examination and any forensic disadvantage to the cross-examiner as a result of the witness providing evidence via video link.
In the circumstances before me, I am not concerned that the Applicant will be at a forensic disadvantage in its cross-examination of Professor Vucic. I am not concerned that the witness will fail to grasp the gravity and immediacy should he provide his evidence via video link. The matters about which he will give evidence are of a serious nature and I am satisfied that Professor Vucic will understand the solemnity and formality required when giving evidence under oath or affirmation via video link.
At the directions hearing on 25 July 2024, representatives for the Applicant and the Third Respondent agreed that there are a range of practical strategies which may be put in place in the event that there were documents, other than those in the agreed bundle, which needed to be shown to Professor Vucic. An agreed bundle of documents should assist in efficiently directing Professor Vucic to key documents when he gives his evidence. I understand that Professor Vucic will be questioned on a fairly narrow set of documents which have already been disclosed between the parties. While it could be argued that the Applicant is at a forensic disadvantage simply by virtue of Professor Vucic giving evidence remotely, I am not concerned that any such disadvantage is of a nature that would necessitate the refusal of leave for him to do so.
I am satisfied that the administration of justice is not affected by the granting of leave to Professor Vucic give evidence by video link. I find that granting leave to Professor Vucic to give evidence by video link will not impact on the need to ensure that justice is done as between the parties.
Turning now to the facts and circumstances of the individual case before me, I note that this matter can be readily distinguished from Loveridge where leave was refused. In that case, leave was refused on the basis that satisfactory evidence was not provided to persuade the Commission that appearing in-person to give evidence would be detrimental to the witness' mental health – which is squarely a personal ground.[20]
[20] Loveridge (n 1) [47]-[56].
The application before me is not made on grounds related to Professor Vucic’s personal capacity or willingness to attend the Commission. I think the grounds upon which leave is sought could best be described as the public interest, or certainly the interests of a vulnerable class of people. Professor Vucic provides specialist care in the public system through a clinic which serves patients who are seriously or terminally ill. This means that the interests of those patients, their loved ones, and referring medical practitioners will be directly impacted by my decision as to whether to exercise my discretion.
I have considered the matters raised by the Applicant regarding the information provided in the affidavit of Ms Malarowski. At the directions hearing on 25 July 2024, the Applicant was willing to accept Ms Malarowski’s advice, provided through Counsel for the Third Respondent that she had spoken with Professor Vucic in recent days and that he had confirmed the ongoing relevancy and applicability of the information provided in her affidavit of February with respect to the forthcoming hearing dates in March 2025.
While there is no evidence that Professor Vucic’s employer will not give him leave to attend the Commission as a witness, I consider the more pertinent issue to be whether there is a real and genuine need for him to seek leave from the clinic to attend the Commission in circumstances where there is a capacity for him to provide his evidence by video link.
I accept that Professor Vucic would be eligible to take holidays and other forms of leave and that, from time to time, he would have to attend to duties or responsibilities that may take him away from the clinic. Drawing an inference from the evidence before me, I would expect that Professor Vucic’s clinic ensures that appointments are not made during contemplated and pre-scheduled times of leave, with emergent or sick leave possibly an exception to this, however the application before me is made on the basis of a desire to minimise disruption to the clinic regarding absences that are within Professor Vucic’s control. I accept that granting leave for the witness to appear via video link would curtail such a disruption.
The Applicant says that whether Professor Vucic appears at the Commission in-person or via video link, there will be a requirement for him to be away from his work duties. The Third Respondent has said that the clinics occur in the afternoon and that it intends to schedule Professor Vucic’s evidence in the morning so that the clinic would not be affected. Clearly, if Professor Vucic was required to travel to Brisbane to give evidence on one of the six sitting days, it follows that he would be unavailable for the afternoon clinic on that day. I also note that if leave is granted and there are delays or changes to the trial plan, there is some flexibility for Professor Vucic to give his evidence by video link on a different day. Providing evidence by video link also minimises the risk of disruption to the clinic by virtue of unforeseen extrinsic delays, such as flight delays caused by operational issues or weather. I am satisfied that granting attendance to give evidence by video link will minimise disruption Professor Vucic’s afternoon clinic and that this is in the public interest.
I am also conscious that this matter was previously set down for February 2024 and witnesses had planned to make themselves available to provide evidence to the Commission on the listed sitting days. That hearing was vacated at relatively short notice at the request of the Applicant. I understand that patients wait many months for an appointment with Professor Vucic and I would be concerned if appointments were cancelled for him to attend the Commission in-person, only to find that due to delays or a further request to postpone the matter, seriously or terminally ill patients were burdened by further wait times to get an appointment.
The process of deliberation required to exercise discretion is a balancing exercise. I have balanced the minimal impact on the Applicant should leave be granted, with the compelling submissions of the Third Respondent regarding Professor Vucic’s clinical duties and the seriously and terminally ill patients he treats. I am persuaded that exercising discretion on the factual circumstances of the matter before me correctly balances these contentions.
Order
For the above reasons, I make the following order:
1.Pursuant to s 451(1) of the Industrial Relations Act 2016 (Qld), I direct that Professor Ostoja Vucic is granted leave to give evidence by video link at the hearing of GP/2021/25.
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