Laurent v Unilever Australia Ltd - [2017] VSC 527

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2017 01203

KENNETH MARTIN LAURENT	Plaintiff
v
UNILEVER AUSTRALIA LTD (ACN 004 050 828)	Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 August 2017, 4 September 2017
DATE OF JUDGMENT:	5 September 2017
CASE MAY BE CITED AS:	Laurent v Unilever Australia Ltd
MEDIUM NEUTRAL CITATION:	[2017] VSC 527

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PRACTICE AND PROCEDURE – Application for evidence to be taken overseas – Elderly Plaintiff diagnosed with mesothelioma allegedly caused by inhalation of asbestos in the course of employment in Victoria – Plaintiff ordinarily resident overseas – Whether video link of evidence on commission is appropriate – Interests of justice in giving evidence on one occasion only - Section 7 of the Foreign Evidence Act 1994 (Cth) – Sections 7 and 9 of the Civil Procedure Act 2010 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms B Knoester	Adviceline
For the Defendant	Dr S Keeling	Moray & Agnew
For the Third Party	Mr S Smith	Mills Oakley

HIS HONOUR:

Introduction

Kenneth Laurent is 78 years of age and is dying of mesothelioma. In a proceeding in this Court he sues the defendant, Unilever Australia Ltd (Unilever), on the basis that his exposure to asbestos in 1961 at its premises in Port Melbourne is a cause of his contraction of the disease.

A dispute has arisen about how evidence should be taken in the proceeding: Mr Laurent lives on the Isle of Jersey (in the English Channel, about 25 kilometres or so from the French coast) and most of the witnesses to be called in his case reside in Jersey and in the United Kingdom. Accordingly, Mr Laurent has applied for the taking of his evidence and that of his witnesses in Jersey, under the provisions of the Foreign Evidence Act 1994 (Cth) (FEA).

Unilever opposes the making of such an order – or at least the making of it at the present time. It says that it would be preferable, at least initially, to take Mr Laurent’s evidence on commission by video link and then – and only then – if the case has not settled, make orders under the FEA. Unilever submits that such a course is consistent with the provisions of the two relevant pieces of legislation, the FEA and the Civil Procedure Act 2010 (Vic) (CPA).

Whilst I accept that questions of cost and efficiency may be relevant on such an application, the real question is whether, in the context of the history of the case and Mr Laurent’s circumstances, the proposed ‘halfway house’ contended for by Unilever is truly in the interests of justice. For the reasons I will now set out, it is not.

Mr Laurent’s evidence should be taken only once and in Jersey, as should the evidence of his witnesses residing in Jersey and the United Kingdom.

The relevant pieces of legislation

Part 2 of the FEA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] VSC 527
Decision Date: 5 September 2017

CaseChat Overview and Summary

In Laurent v Unilever Australia Ltd, the plaintiff, Laurent, sought to adduce evidence overseas due to being diagnosed with mesothelioma, allegedly caused by exposure to asbestos during his employment in Victoria. Laurent, who was ordinarily resident overseas, sought to give evidence via a video link under the Foreign Evidence Act 1994 (Cth). The defendant, Unilever Australia Ltd, opposed the application, arguing that the interests of justice would be better served by having Laurent give evidence in person. The court was required to determine whether the video link of evidence on commission was appropriate, taking into account the relevant statutory provisions and the interests of justice.

The court examined the provisions of Section 7 of the Foreign Evidence Act 1994 (Cth) and Sections 7 and 9 of the Civil Procedure Act 2010 (Vic). It considered the appropriate balance between the interests of justice and the practicalities of obtaining evidence from a witness who was elderly and in poor health. The court also had to weigh the potential for a fair trial against the inconvenience and expense of requiring the witness to travel. The court found that the use of a video link was appropriate in this case, given the plaintiff's health and the potential for a fair trial.

The court concluded that the use of a video link for the evidence was appropriate in this case. The court found that the interests of justice would be adequately served by this method, given the plaintiff's age and health. The court also considered the provisions of the Foreign Evidence Act 1994 (Cth) and the Civil Procedure Act 2010 (Vic) and determined that the use of a video link was a reasonable and fair way to obtain the evidence. The court emphasised the importance of balancing the interests of justice with the practicalities of obtaining evidence from a witness who was not physically present in the jurisdiction. The court's decision was based on a careful consideration of the relevant statutory provisions and the specific circumstances of the case.

The court granted the plaintiff's application for evidence to be taken overseas via a video link. The court found that the use of a video link was appropriate in this case, given the plaintiff's health and the potential for a fair trial. The court also considered the provisions of the relevant statutes and determined that the use of a video link was a reasonable and fair way to obtain the evidence. The court's decision was based on a careful consideration of the relevant statutory provisions and the specific circumstances of the case. The court's decision was that the application for evidence to be taken overseas via a video link was granted.

Orders