Piersona**s Pro-Health Pty Ltd v Silve x Nominees Pty Ltd
[2008] FMCA 946
•17 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PIERSON’S PRO-HEALTH PTY LTD & ORS v SILVEX NOMINEES PTY LTD & ANOR | [2008] FMCA 946 |
| PRACTICE & PROCEDURE – Evidence by video link – exercise of discretion to grant – applicable discretionary factors. |
| Federal Magistrates Act 1999 (Cth) ss.3, 42, 62, 81(1) and 87(1)(a) Federal Magistrates Court Rules 2001 (Cth) rr.1.03, 15.01(b) Trade Marks Act 1995 (Cth) Trade Practices Act 1974 (Cth) |
| ASIC v Rich [2004] NSWSC 467 B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95 Dorajay Pty Ltd v Aristocrat Leisure Limited [2007] FCA 1502 Goodall v Nationwide News Pty Limited [2007] FMCA 218 Gray v The Owners Corporation Strata Plan 61619 [2008] FMCA 678 Moyette Pty Limited v Foundation Healthcare Limited [2003] FCA 116 National Australia Bank v Grose [2006] NSWSC 979 Sheldon & Hammond Pty Ltd v Metrokane Inc [2002] FCA 1561 Studniberg v JP Morgan Australia Ltd [1998] NSWIRC 483 |
| First Applicant: | PIERSON’S PRO-HEALTH PTY LTD |
| Second Applicant: | GRENVILLE GEORGE FRANKLIN |
| Third Applicant: | LEEANNE MAREE FRANKLIN |
| First Respondent: | SILVEX NOMINEES PTY LTD |
| Second Respondent: | HEALTH MINDERS PTY LTD |
| File Number: | PEG 259 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 9 July 2008 |
| Date of Last Submission: | 9 July 2008 |
| Delivered at: | Perth |
| Delivered on: | 17 July 2008 |
REPRESENTATION
| Counsel for the Applicants: | Mr S K Shepherd |
| Solicitors for the Applicants: | Irdi Legal |
| Counsel for the Respondents: | Mr M G Pendelbury |
| Solicitors for the Respondents: | Williams and Co |
ORDERS
Pursuant to s.66 of the Federal Magistrates Act 1999 (Cth) the evidence of Paul Michael Curlisa be taken by video-link, from a venue to be advised to the parties to the solicitors.
The evidence of Mr Curlisa is to be given by video-link at 10.15am Western Standard Time on 17 July 2008, for not more than three hours.
The Respondents shall in the first instance pay the cost of the provision of the video-link.
(a) All written and all other materials to which Mr Curlisa is to be referred or is likely to be referred to in the course of his cross-examination are to be clearly identified by the Applicants and:
(i)in the case of documents to be put into a paginated bundle of documents; and
(ii)in the case of other materials to be clearly labelled with appropriate letters and or numbers.
(b)the Applicant is to arrange the preparation of any bundle of documents or other materials and:
(i)file one copy of the documents and materials in the Perth Registry of the Federal Magistrates Court; and
(ii)serve two copies of the documents and materials on the Respondents’ solicitors
by 4.00pm on 11 July 2008.
(c)The Respondents are to ensure that a copy of any documents or materials as served is delivered to Mr Curlisa.
(d)The Respondents are to ensure that Mr Curlisa brings any documents or materials served to court on 17 July 2008.
At all times during the course of the video conference, the Court may terminate the video-link:
(a)if it is so unsatisfactory that it is unfair to either party to continue; or
(b)if the Court considers for any reason that it is unfair to either party to continue.
Subject to Order 3 costs to be reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 259 of 2007
| PIERSON’S PRO-HEALTH PTY LTD |
First Applicant
| GRENVILLE GEORGE FRANKLIN |
Second Applicant
| LEEANNE MAREE FRANKLIN |
Third Applicant
And
| SILVEX NOMINEES PTY LTD |
First Respondent
| HEALTH MINDERS PTY LTD |
Second Respondent
REASONS FOR JUDGMENT
Interim Application
The First, Second and Third Applicants have filed in this Court an application under the Trade Practices Act 1974 (Cth),[1] and associated claims under the Trade Marks Act 1995 (Cth)[2] and at common law.
[1] “TP Act”.
[2] “TM Act”.
The interim application presently before the Court filed by the First and Second Respondents by facsimile on 7 July 2008 seeks an order that the Respondents’ witness, Paul Michael Curlisa,[3] be allowed to give evidence by video-link from Sydney to the Court in Perth.
[3] “Curlisa”.
The Court, sitting in Cairns on 9 July 2008, heard the interim application by telephone, made orders on that day, and said it would deliver Reasons for Judgment later. These are those Reasons for Judgment.
Affidavit in support of interim application
Robert Venour Dulhunty swore an affidavit on 4 July 2008 in support of the interim application. That affidavit relevantly provides:
“3. Health Minders’ solicitors have advised me that:
(a)Paul Curlisa is required to testify in these proceedings at a three day hearing to take place in Perth from Tuesday 15 to Thursday 17 July 2008;
(b)the solicitors for the Applicants have indicated that they oppose him providing his testimony via video link from the Federal Magistrates Court in Sydney;
(c)Paul Curlisa is likely to take the witness stand either on the second or third days of the hearing.
4.Paul Curlisa is the Chief Financial Officer of Healthzone Limited and Company Secretary of Health Minders Pty Limited. Paul works out of offices located in Sydney.
5.Paul Curlisa reports directly to the Board, of which I am part.
6.On 4 July 2008, I caused enquiries to be made of various air line companies as to what flights were available from Sydney to Perth, and have been advised that if Paul Curlisa attended Perth for the second day of the hearing (ie Wednesday, 16 July 2008) and:
(a)he testified on the second day of the hearing, the current availability of flights is such that he would leave Sydney on Tuesday, 15 July 2008 and be back in the office here in Sydney on Thursday, 17 July 2008, a total of 2 days;
(b)he testified on the third day of the hearing (ie Thursday, 17 July 2008), the current availability of flights is such that he would leave Sydney on Tuesday, 15 July 2008 and be back in the office here in Sydney on Friday 18 July 2008, a total of 3 days.
7.Given this, if Paul Curlisa is to testify, it is our preference that he is permitted to do so via video link from the Federal Magistrates Court in Sydney. The reasons for this are as follows:
(a)Paul is the Chief Financial Officer of Healthzone Limited, which is listed on the Australian Securities Exchange;
(b)We require Paul to be present in Sydney in relation to several matters that are very important for the effective operation of Healthzone Limited. Examples of such matters that have recently arisen that require his immediate and ongoing attention (and hence presence in Sydney), include:
(i) work he is required to undertake in respect to the integration of the business and systems of Jasham Pty Ltd, a national $20 million per annum turnover business which was recently acquired by Healthzone on 27 June 2008;
(ii) the audit of Healthzone Limited and its subsidiaries;
(iii) management of daily treasury, cash and foreign exchange requirements for a business with combined annual turnover of around $100 million;
(iv) integration and upgrade of Healthzone’s information technology systems, including the integration of systems of Jasham Pty Ltd;
(v) the recruitment of staff that are important for the effective operation of Healthzone Limited to replace recent resignations;
(vi) the handing over of accounting matters in relation to staff that are leaving Healthzone;
(vii) preparing reports for presentation to the ASX and Healthzone’s financiers in July and August 2008;
(viii) preparation for institutional presentations in relation to the Jasham Pty Ltd acquisition and Healthzone’s immediate funding requirements;
(ix) authorisation and control with respect to large daily transactions; and
(x) several other matters that are confidential.
(c)I am also very concerned that Paul Curlisa is already overtaxed with his current work load, and I feel that to require him to travel to Perth at this time would be to place too heavy a burden on him.
(d)If he is required to travel to Perth to testify, Healthzone Limited and Health Minders will be prejudiced by his absence from Sydney due to his absence from several CFO functions that require his require his direct supervision.”[4]
[4] Dulhunty Affidavit paras. 3-7.
Reliance was also placed by the Respondents on a copy of an unsworn affidavit of Curlisa, which the Respondents undertook to have sworn and filed (and which had been sworn on 4 July 2008, and was then filed on 9 July 2008). It suffices to say that the affidavit deals primarily with:
a)the termination of a distribution agreement between the First Applicant and the Second Respondent, and the potential effects of that on the First Applicant’s business;
b)the Second Respondent’s sales of the First Applicant’s and First Respondent’s products.
Principles
Neither side demurred from the principles outlined by this Court in Goodall v Nationwide News Pty Limited[5] concerning hearing evidence by video-link, however the Applicants (the Respondents to the interim application) also referred to the judgment in Dorajay Pty Ltd v Aristocrat Leisure Limited.[6]
[5] [2007] FMCA 218 (“Goodall”). Goodall has been described as a case “which provides detailed guidance for any litigant and legal advisors in relation to the matter of video-link evidence in the court”: Hassall & Steele (Eds), Federal Magistrates Court Guidebook (Sydney: Thomson Law Book Co) at para. 2.1550. Goodall was referred to in Gray v The Owners Corporation Strata Plan 61619 [2008] FMCA 678 at para 11 per Smith FM, with particular respect to issues of credibility and cross-examination on documents.
[6] [2007] FCA 1502 (“Dorajay”).
In Goodall the Court said that:
“The power of the Court to order that evidence be given by video link is specifically underpinned by provisions of the FM Act. In determining whether or not to make an order the Court must have regard to relevant specific provisions of the FM Act, but also more general provisions relating to the role of the Court, the giving of evidence and case management generally”[7]
[7] Goodall at para. 14 per Lucev FM.
The relevant statutory provisions are:
a)sections 66 and 69 of the Federal Magistrates Act 1999 (Cth)[8] relating to the giving of testimony and conditions for the use of video-link;
b)sections 3 and 42 of the FM Act setting out the objects of the FM Act and mode of operation of the Court; and
c)rule 1.03 of the Federal Magistrates Court Rules 2001 (Cth)[9] setting out the objects of the FMC Rules.
[8] “FM Act”.
[9] “FMC Rules”.
With regard to those statutory provisions the Court adopts what it said in Goodall, namely:
“20. In s.66(1) of the FM Act the use of “may” imports a discretion as to whether the Court directs or allows the giving of evidence via video link. The discretion must be exercised having regard to the objects of the FM Act, and the FMC Rules, and to other powers and duties under the FM Act and FMC Rules, and subject to the conditions for the giving of video evidence in s.69(1) and (2) of the FM Act.
21. Reading together the objects of the FM Act in s.3, the mode of operation in s.42, and having regard to the objects of the FMC Rules in r.1.03, it is apparent that the Court 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.
22. It is in this context that the discretionary power in s.66 of the FM Act must be exercised.”[10]
[10] Goodall at paras. 20-22 per Lucev FM.
Having reviewed relevant cases the Court went on in Goodall to say:
“The Court considers that the approach adopted in Rich at para.43 per Austin J is correct. Thus, as a general rule, it ought to be the norm that an application for the evidence of a sufficiently remote witness to be taken via video link be granted, and the exception that it be refused, subject always to appropriate exercise of the Court’s discretion: see also Versace v Monte [2001] FCA 1454 at para.16 per Tamberlin J. Therefore, the Court considers that the present application for the giving of Hellard’s evidence via video link ought to be granted, unless a consideration of discretionary issues weighs patently against that course. It is therefore necessary to considers factors relevant to the exercise of discretion …[before] finally determining whether to grant the Interim Application.”[11]
The Court again adopts what was said above in Goodall, and adds this: the overall purpose is to expede not impede all aspects of the litigation and the litigants’ access to the Court.
Discretionary factors
[11] Goodall at para. 29 per Lucev FM. The reference to “Rich” is to ASIC v Rich [2004] NSWSC 467.
Centrally important evidence
Curlisa’s affidavit evidence is important, it being in relation to bottling, distribution and sales of relevant product, and the cause of the Applicants’ claimed loss of sales. Curlisa’s affidavits are not long, being 12 pages in total including documents. On the face of it, Curlisa’s evidence-in-chief appears relatively brief, and relatively straight forward, and at least in that context suitable to be given
by video-link.[12] Counsel for the Applicants properly conceded
in the course of argument that it was unlikely that Curlisa’s
cross-examination would be longer than half a day (that is, two to three hours).[13] Where a witness’ evidence is short and voluminous papers are not involved, which is the case here, the use of video-link technology has in the Court’s experience in the Perth Registry posed no real impediment to proper assessment of witness credibility in cases heard in the Perth Registry (including trade practices cases).
[12] Rich at para. 22 per Austin J; Goodall at para.30 per Lucev FM.
[13] Transcript at 11.
Assessment of credit
The Court accepts that Curlisa is likely to be challenged, possibly as to credit and as to the detail of the documents appended to his witness statement, and on other issues which might arise which might be put to him. In the Court’s view the Applicants will get to “confront” the Respondents’ witness.
In circumstances where:
a)the documents comprising Curlisa’s evidence are not voluminous;
b)the Court’s previous experience with video-link technology, including in trade practices cases; indicates that the technology in the Perth Registry is satisfactory; and
c)the witness will be able to be confronted by the use of video technology,
the Court does not consider that the giving of evidence by video-link is likely to impair any assessment of the credit of Curlisa by the Court; [14] indeed it was not truly suggested by the Applicants’ Counsel that it would.
[14] Goodall at paras. 31-33 per Lucev FM.
Management of documents in cross-examination
There are not a huge volume of documents relevant to issues on which Curlisa is likely to be cross-examined; and not a sufficient volume as to make proper orderly cross-examination on those documents impossible or very difficult.[15]
[15] Compare Rich at paras. 29-32 where there were up to eighteen volumes of lever arch documents to be accessed by the witness for the purposes of cross-examination; Goodall at paras. 36-37 per Lucev FM.
In any event, if there is consultation between the parties and the provision of a bundle of documents in relation to Curlisa’s cross-examination, that will (or should) obviate document management being an issue.
Management of physical objects in cross-examination
The Applicants told the Court that there was a “likelihood”[16] that Curlisa would be cross-examined in relation to certain physical objects, namely bottles and their labels, or get-up, and suggested that that would be “extraordinarily difficult”[17] and “unfair”[18] if done by video-link. The Respondents noted that the affidavit material filed contained clear colour photographs of all the relevant bottles. Further, they said that arrangements could be made for labelled bottles to be made available to Curlisa in Sydney for the purposes of cross-examination.
[16] Transcript at 14.
[17] Transcript at 12.
[18] Transcript at 14.
A similar difficulty was dealt with (as long ago as 1993) by the New Zealand High Court in B v Dentists Disciplinary Tribunal[19] where exhibits, three-dimensional models, super-imposed slides, photographs and video evidence all had to be put to a medical witness. A variety of means were utilised to deal with the various types of evidence, the Court concluding with the common sense observation that it did “not see any serious difficulty … provided that Counsel undertake sufficient advance preparation”.[20]
[19] [1994] 1 NZLR 95 (“Dentists Disciplinary Tribunal”).
[20] Dentists Disciplinary Tribunal at 108 per Williams J.
There do not appear to be a significant number of bottles – no more than a dozen – of sizes up to one litre. The Court does not consider that there would be any insuperable difficulty caused by having appropriately labelled “identical” bottles available in both Perth and Sydney to facilitate cross-examination of Curlisa.
Length of cross-examination
The Court observed in Goodall that:
“As a general proposition it appears that there is no significant problem with video-link evidence … for two to three hour periods”.[21]
[21] Goodall at para. 38 per Lucev FM.
Curlisa’s cross-examination will not be overly long: as indicated above it is not likely to be more than three hours.[22]
[22] See para. 11 above.
The Court has power to limit the time for cross-examination, and in the circumstances of this case where the likelihood is that there will be no more than three hours of cross-examination by Counsel for the Applicants, the Court proposes to limit video evidence for Curlisa (that is cross-examination and re-examination) to not more than three hours. Curlisa’s evidence is to be given at the beginning of the third day of the hearing, that is at 10.15am on 17 July 2008.[23]
[23] FM Act, ss.62, 81(1) and 87(1)(a); FMC Rules, r.15.01(b).
Technological difficulties
There are unlikely to be technological difficulties affecting the flow of Curlisa’s evidence based on prior experience in the Perth Registry.
If there are technological difficulties affecting the flow of evidence the video-link can be terminated, and orders made to accommodate that possibility.[24]
[24] Goodall at para. 40 per Lucev FM.
Cost and convenience
Given:
a)Curlisa’s position as Chief Financial Officer of the owner of the Second Respondent, and as Company Secretary of the Second Respondent;
b)Curlisa’s work responsibilities at the relevant time;
c)flight availability, possibly resulting in either a two or three day absence from Sydney to attend a hearing in Perth; and
d)the relative shortness of Curlisa’s evidence, that is three hours or under,
the cost and convenience factors (including the cost of airfares and accommodation) support Curlisa’s giving of evidence by video-link.
There is no discernable additional cost or inconvenience to the Applicant if Curlisa gives evidence by video-link, save for the cost that might be associated with agreeing and putting together a bundle of documents, and appropriately lettered or numbered physical objects, to be put to Curlisa in cross-examination.
It was suggested by the Applicants that Curlisa’s work commitments were no more than those of the ordinary senior person employed in business, and therefore there was no good reason for him not to attend Court in person.
There can be little reason to doubt on the evidence before the Court that Curlisa is a busy senior business person, and in that respect no different to other busy people, engaged in business or otherwise.
To say that Curlisa is no different to other business people who are busy and that that then does not constitute a good reason for him not to attend the Court in Perth in person is to set up pre-conditions to the exercise of the discretion which are not prescribed or mandated by the FM Act or FMC Rules.
The reason for non-attendance in person is considered as part of the discretionary considerations. The business and personal convenience and circumstances of a witness, including the inconvenience of travel, factor into the reason put up for non-attendance as a discretionary consideration.[25] In this case everything that could be done if Curlisa attended Court in Perth can be done, just as effectively, by video-link from Sydney, subject to Curlisa being provided with appropriate documents and physical objects.
[25] Moyette Pty Limited v Foundation Healthcare Limited [2003] FCA 116 at para. 13 per Conti J; Sheldon & Hammond Pty Ltd v Metrokane Inc [2002] FCA 1561 at paras. 13-14 per Conti J; Studniberg v JP Morgan Australia Ltd [1998] NSWIRC 483 at page 2 per Schmidt J; National Australia Bank v Grose [2006] NSWSC 979 at para. 11 per Adams J (“increasingly utilised to avoid the necessity for requiring witnesses to travel”).
In those circumstances there is no reason to subject Curlisa to the disruption caused by cross-continent travel and being away from his ordinary place of business. To do so would be contrary to the objects of the FM Act and FMC Rules set out above. This is confirmed by the comments of the Attorney-General on the introduction of the Federal Magistrates Bill 1999:
“There are often cases where parties live in different towns or even different states. Use of video links will alleviate the problem of parties having to travel long distances to attend directions hearings or final hearings of their cases. This will save individuals significant time and money”.[26]
[26] Hansard, House of Representatives, 24 June 1999, p. 7366.
The circumstances of this case are manifestly different to those of mega-litigation, such as that in Rich and Dorajay, where a witness must content with one or more of voluminous documents, lengthy cross-examination or significant attacks on credibility. Had any of those circumstances pertained here the Court would have had to consider the matter very differently.
Prejudice
Cost, convenience and other factors related to prejudice are covered above.
There was no real submission put as to any prejudice to be suffered by the Applicants outside of the matters discussed above. Effectively, the suggested prejudice was limited to the practical difficulties which it was suggested might arise in having to cross-examine Curlisa on the physical objects. For reasons set out above the Court does not consider that that poses any insuperable practical difficulty, nor any real prejudice affecting the Respondents.
In any event, to the extent that there are difficulties arising on the giving of evidence by video-link, as to either content or credit, the Court considers it appropriate that the Respondents bear the risk of any prejudice to the Applicants arising from Curlisa’s non-appearance in person.
Case management principles
The Court adopts what it said in Goodall concerning case management principles:
“Case management principles are important in maintaining the proper programming and running of litigation, and the use of often too scarce public resources in so doing: see The State of Queensland v JL Holdings Pty Limited (1997) 189 CLR 146, and particularly at 171-172 per Kirby J (“JL Holdings”). In this Court it is clear that there is legislative fiat to proceed informally, without delay, efficiently and economically, using streamlined processes, but always justly: FM Act ss.3(2)(a)and(b) and 42, and FMC Rules r.1.03; Studniberg at 5 per Schmidt J. The requirement to proceed justly reflects the general principle that case management requirements are ultimately subordinate to the interests of justice, and the necessity to accord justice to a particular litigant or litigants: JL Holdings at 154-155 per Dawson, Gaudron and McHugh JJ and at 166 and 171-172 per Kirby J; Dentists Disciplinary Tribunal at 107 per Williams J.”[27]
[27] Goodall at para. 46 per Lucev FM.
Specific case management issues, particularly with respect to the use of documents and objects and cross-examination, are dealt with above.
In more general terms, it appears that the giving of evidence by video-link will not otherwise impede or affect the hearing of the case in any other way relevant to proper case management principles. Having regard to the objects of the FM Act and FMC Rules it is entirely consistent with modern case management principles that evidence of a remote witness in this case be taken by video-link.
Conclusion
Having regard to the general rules set out above, that is, that in this Court it is the norm and not the exception that the evidence of a sufficiently remote witness be taken by video-link unless there are significant countervailing discretionary factors requiring the evidence to be given in person, the Court considers, having examined the discretionary factors above, that they all favour (or at least are neutral) the giving of evidence by video-link in this case. The Court concludes that the interim application for Curlisa to give evidence by video-link ought to be granted, subject to conditions concerning:
a)the provision of a bundle of documents, properly paginated, to be filed and served and provided to the Court and the witness, and for the witness to bring those documents to the Court on the day of the hearing;
b)the provision of appropriately lettered and/or numbered physical objects to be dealt with in the same manner as the bundle of documents;
c)the time for evidence to be given by video-link (by way of cross-examination and re-examination of Curlisa) to be limited to no more than three hours; and
d)the possible termination of the video-link, in the event of unfairness or for any other reason.
The Court made orders reflecting the above conclusions on 9 July 2008.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Lucev FM
A/Associate: S. Gough
Date: 17 July 2008
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