Rizk v PVH Brands Australia Pty Ltd (No 3)
[2021] FCCA 1334
•16 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Rizk v PVH Brands Australia Pty Ltd (No 3) [2021] FCCA 1334
File number(s): SYG 503 of 2020 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 16 June 2021 Catchwords: PRACTICE AND PROCEDURE – application for orders under s 66(1) of the Federal Circuit Court of Australia Act 1999 (Cth) that the evidence by three witnesses be given by telephone or video link – requests denied but with liberty to renew requests at hearing – application by applicant for reimbursement of economic loss claimed to arise by having to attend the hearing for the purpose of being cross-examined – application dismissed Legislation: Fair Work Act 2009 (Cth) s 570
Federal Circuit Court of Australia Act 1999 (Cth) s 66(1)
Cases cited: Construction, Forestry, Maritime, Mining and Energy Union v Andrade Holdings Pty Ltd [2021] FCCA 213
London Scottish Benefit Society v Chorley (1884) 13 QBD 872
Rizk v PVH Brands Australia Pty Ltd (No 2) [2021] FCCA 1121
Roberts v Willcocks [2017] FCCA 459
Number of paragraphs: 22 Date of hearing: 15 June 2021 Place: Sydney The Applicant: Appeared in person, by telephone Counsel for the Respondent: Mr B Fogarty, by telephone Solicitor for the Respondent: The Workplace Employment Lawyers ORDERS
SYG 503 of 2020 BETWEEN: CHRISTEN RIZK
Applicant
AND: PVH BRANDS AUSTRALIA PTY LTD
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
16 JUNE 2021
THE COURT ORDERS THAT:
1.The requests made pursuant to s 66(1) of the Federal Circuit Court of Australia Act 1999 (Cth) by each of Mr Michael Gazal, Mr Guy Griffiths, and Ms Sonja Goyen, that they give evidence by audio link or video link are denied.
2.The applicant’s claim for an order that the respondent reimburse the applicant the salary loss and travel expenses she will suffer or incur because of her having to attend the hearing for one week is dismissed.
THE COURT NOTES THAT
3.Mr Michael Gazal, Mr Guy Griffiths, and Ms Sonja Goyen have liberty to renew at the hearing their requests that they give evidence by audio link or video link.
REASONS FOR JUDGMENT
INTRODUCTION
At the listing of this matter for directions at 4:30 pm on 15 June 2021 I heard an application on behalf of three persons, each of which was made by three separate written requests (Requests) that, at the hearing that is due to commence on 21 June 2021, they give evidence by telephone or by video. I also heard an application by the applicant that the respondent be reimbursed for the economic losses the applicant claims she will suffer by attending the hearing. The applicant opposed the Requests, and the respondent opposed the applicant’s claim for reimbursement.
At the conclusion of the directions hearing I said I would give judgment at 9:30 am on 16 June 2021. At that time I made orders denying the Requests, and dismissing the applicant’s claim for reimbursement, and noted I would publish my reasons during the course of the day. These are my reasons.
BACKGROUND
Much of the background that is relevant to the Requests is contained in the reasons for judgment I published in this proceeding on 25 May 2021 (earlier reasons).[1] These reasons for judgment, therefore, assume familiarity with the earlier reasons.
[1] Rizk v PVH Brands Australia Pty Ltd (No 2) [2021] FCCA 1121
POWER AND PRINCIPLES
The Requests engage the power conferred on this Court by s 66(1) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act) which provides:
The Federal Circuit Court of Australia or a Judge may, for the purposes of any proceeding, direct or allow testimony to be given by video link or audio link.
The principles governing the exercise of the power conferred by s 66(1) of the FCC Act were recently stated by Judge Lucev in Construction, Forestry, Maritime, Mining and Energy Union v Andrade Holdings Pty Ltd, and I can do no better than to set out what his Honour there said:[2]
[2] Construction, Forestry, Maritime, Mining and Energy Union v Andrade Holdings Pty Ltd [2021] FCCA 213, at [11]-[16]
Section 66(1) of the FCCA Act imports a discretion as to whether the Court directs or allows the giving of evidence by video link, a discretion exercisable by reference to the provisions in ss. 3 and 42 of the FCCA Act and also r. 1.03 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) and subject, as the Court has already indicated, to the provisions of s. 69(1) and (2) of the FCCA Act.
The legislative provisions make it apparent that the Court is intended to operate in a manner that:
(a) is as informal as possible in the exercise of judicial power;
(b) that is not protracted in its proceedings;
(c) which resolves proceedings justly, efficiently and economically;
(d) which uses streamlined procedures, and;
(e) that avoids undue delay, expense and technicality . . . .
There have been, on the decided cases, differing approaches adopted to the giving of evidence via video link and it can be said that there is generally a line of cases in favour of the use of audio or visual evidence, and those cases which take a more cautious approach.
Those cases have been analysed in Australian Securities and Investments Commission v Rich [2004] NSWSC 467, (2004) 49 ACSR 578, (2004) 22 ACLC 1125 (“Rich”) at [17] and [18] per Austin J, and referred to and analysed in a number of subsequent cases. Those differing approaches can still be seen in recent cases in the Federal Court in determining whether or not video link evidence ought to be given, particularly during the COVID-19 lockdowns and circumstances which have occurred over the last 12 months. Without detailing the approach in each of the cases the Court has had regard to all of, and will refer to some of, the following cases: Auken Animal Husbandry Proprietary Limited v 3RD Solutions Investments Proprietary Limited [2020] FCA 1153 (“Auken”); Australian Securities and Investments Commission v Wilson [2020] FCA 873 (“Wilson”); Capic v Ford Motor Co of Australia Limited [2020] FCA 486; Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504; and Rooney v AGL Energy (No 2) [2020] FCA 942 (“Rooney”).
The reasons for the exercise of the Court’s discretion must be made out, and made out by the party seeking the favourable exercise of that discretion, here, the Applicants and, in particular, the Third Applicant: Wilson at [6] per Jackson J, and that is an assessment which is made in each case depending upon the particular circumstances of the case: Wilson at [24] per Jackson J.
There are a number of factors for consideration as outlined in Rich, including the nature of the evidence, the assessment of credit, management of documents in cross-examination, technological difficulties, and the length of cross-examination, to which might be added, the nature of the case. There is no suggestion that these factors are intended to be exhaustive . . . .
Also relevant is what Judge Lucev said in Roberts v Willcocks:[3]
A request for a video link is a matter which engages a power which is discretionary in nature under ss.66 and 67 of the Federal Circuit Court Act 1999 (Cth). And as this Court observed in a case called Wint v Medimobile [2016] FCCA 102, it is unsatisfactory for a party to proceedings to expect that the Court and another party deal with an application for an appearance by any kind of audio link where they are given little opportunity to consider their position, and where the party assumes that there is an entitlement to appear in the proceedings by a means of their choosing, where an appearance in any way other than by way of personal attendance is an indulgence and not an entitlement.
[3] Roberts v Willcocks [2017] FCCA 459, at [9]
SHOULD REQUESTS BE GRANTED
The persons who have made the Requests are Mr Gazal, Mr Griffiths, and Ms Goyen.
Mr Gazal
Mr Gazal is currently bound to appear at the hearing that is due to begin on 21 June 2021 because the respondent’s solicitors have accepted service on Mr Gazal’s behalf of a subpoena to give evidence the applicant arranged to be issued against him. It appears the subpoena was served in around March 2021. In his Request it is stated Mr Gazal is “travelling for an extended period from around 14 June 2021 and expects to be in northern NSW on 21 June 2021, being the first hearing day”.
There are two things that may be said about this. First, the statements contained in Mr Gazal’s Request are not given in an affidavit. It is therefore not open to me to act on the statements as evidence of the truth of that which they state. Second, assuming the statements are accurate, the Request does not state when Mr Gazal decided to travel for an extended period of time from 14 June 2021, and in particular, whether he so decided after the subpoena was served on him. My impression from what counsel for the respondent said at the directions hearing is that Mr Gazal had only recently decided to travel. These two matters weighed against my making an order under s 66(1) of the FCC Act.
Quite apart from these matters, the statements in Mr Gazal’s Request do not address issues relating to the nature and relevance of the evidence Mr Gazal is expected to give, and whether issues of credibility are likely to be relevant to the assessment of the evidence Mr Gazal is expected to give. I was not prepared to assume that the nature of the evidence Mr Gazal is expected to give is not relevant, or that his credibility will not be an issue. I was therefore not prepared to assume there would not be any disadvantage to the proper determination of the issues in this proceeding if Mr Gazal were to give evidence by telephone, rather than at the hearing.
In declining to exercise my discretion that Mr Gazal give evidence by telephone, however, the applicant should not assume that the subpoena she served on the lawyers for the respondent on behalf of Mr Gazal will be enforceable; and that is because it is apparent from the submissions the parties made during the hearing that the applicant did not tender any conduct money to the respondent’s lawyers at the time she sent the subpoena addressed to Mr Gazal to the respondent’s lawyers. It may be that the applicant can overcome this difficulty by tendering, before the hearing that is due to commence on 21 June 2021, conduct money to Mr Gazal, either personally or on the respondent’s lawyers (assuming their authority to accept service on behalf of Mr Gazal includes an irrevocable authority to accept the tender of conduct money); but this will require time and effort by the applicant. A practical solution to this difficulty may be for the applicant to consent to Mr Gazal giving evidence by telephone.
Mr Griffiths
As is the case with Mr Gazal, Mr Griffiths is currently bound to appear at the hearing because the respondent’s lawyers accepted service on Mr Griffiths’ behalf of a subpoena to give evidence the applicant arranged to be issued against Mr Griffiths. It appears the subpoena was served in around March 2021. Mr Griffths’ request that he give evidence by telephone is based on statements contained in his Request that he lives in Brisbane, and that he has worked from his Brisbane residence for the last 12 months because of the COVID-19 pandemic and the resultant risk of border closures.
The matters on which Mr Griffiths relies are not set out in an affidavit. I considered it was not open to me to act on the statements as evidence of the truth of that which they state. For that reason alone, I was of the view I ought not make an order that Mr Griffiths give evidence by telephone or video. I should note that at the time counsel for the respondent informed me that the respondent’s lawyers had instructions to accept service of the subpoena on Mr Griffiths, I was not informed that Mr Griffiths was working from home in Brisbane, and that for this or any other reason he might not be able, or it would otherwise be impractical for him, to appear at the hearing.
Quite apart from these matters, the statements contained in Mr Griffiths’ Request do not address issues relating to the nature and relevance of the evidence Mr Griffiths is expected to give, and whether issues of credibility are likely to be relevant in the assessment of the evidence Mr Griffiths is expected to give. I am not prepared to assume that the nature of the evidence Mr Griffiths is expected to give is not relevant, or that his credibility will not be an issue. I was therefore not prepared to assume that there would not be any disadvantage to the proper determination of the issues in this proceeding if Mr Griffiths were to give evidence by telephone or video, rather than at the hearing.
As is the case with Mr Gazal, in declining to exercise my discretion to order that Mr Griffiths give evidence by telephone or by video, the applicant should not assume that the subpoena she served on the lawyers for the respondent on behalf of Mr Griffiths will be enforceable; and that is because, as I have already noted, it is apparent that the applicant did not tender any conduct money to the respondent’s lawyers at the time she sent the subpoena addressed to Mr Griffiths to the respondent’s lawyers. It may be that the applicant can overcome this difficulty by tendering, before the hearing that is due to commence on 21 June 2021, conduct money to Mr Griffiths, either personally or on the respondent’s lawyers (assuming their authority to accept service includes an irrevocable authority to accept the tender of conduct money); but this will take time and effort by the applicant.
There is, however, an additional difficulty. It is said that Mr Griffiths resides in Brisbane. In the absence of admissible evidence, it is not possible for me to make any finding about whether that is the case. Assuming, however, it is the case that Mr Griffiths resides in Brisbane, the conduct money the applicant would have to tender might have to include the costs of a return flight, and the costs of travel to and from airports. A practical solution to these difficulties may be for the applicant to consent to Mr Griffiths giving evidence by telephone or video.
Ms Goyen
Ms Goyen has made an affidavit which the respondent has filed; and the applicant has notified the respondent that Ms Goyen is required to attend the hearing for cross-examination. In the statement contained in her Request, it is stated that Ms Goyen lives and works on the central coast of New South Wales, and if she is required to attend the hearing she will lose one day’s work. It is further stated this will occur in what is a very busy time for the company of which she is finance manager.
Assuming these statements are true, they would weigh in favour of making an order under s 66(1) of the FCC Act that Ms Goyen give evidence by telephone or video. The statements contained in Ms Goyen’s Request, however, do not address issues relating to the nature and relevance of the evidence Ms Goyen is expected to give, and whether issues of credibility are likely to be relevant in the assessment of her evidence. I was not prepared to assume the evidence Ms Goyen is expected to give is not relevant, or that her credibility will not be an issue. I was therefore not prepared to assume there would not be any disadvantage to the proper determination of the issues in this proceeding if Ms Goyen’s evidence were given by telephone or video, rather than at the hearing.
Disposition of Requests
It was for these reasons, therefore, that I denied each of the Requests.
APPLICANT’S CLAIM FOR REIMBURSEMENT
The applicant claimed an order that the respondent reimburse the applicant the salary loss and travel expenses she says she will suffer or incur because of her having to attend the hearing for one week. The applicant estimates her losses to be $2,296.72. The basis of the applicant’s claim is the contention that the respondent is requiring the applicant to attend the hearing for the purpose of being cross-examined on the material on which the applicant relies.
The difficulty with the applicant’s claim is she has not identified any power that would authorise this Court to make an award for reimbursement of the sort she claims; and there is, in fact, no such power. It is true the Court has power to award costs under s 570 of the Fair Work Act 2009 (Cth); but that provision only applies to “costs” which only include “money paid out of pocket”, not “loss of time”.[4] Further, an order under s 570 of the FW Act to indemnify a party against such costs can only be made in the circumstances set out in s 570 itself; and there is nothing to suggest that s 570 has been, or can potentially be, engaged in the circumstances of this case as they currently stand.
[4] London Scottish Benefit Society v Chorley (1884) 13 QBD 872, at page 875: “When an ordinary litigant appears in person, he is paid only for costs out of pocket. He cannot himself take every step, and very often employs a solicitor to assist him: the remuneration to the solicitor is money paid out of pocket. He has to pay the fees of the court, that is money paid out of pocket; but for loss of time the law will not indemnify him.”
It is for these reasons I dismissed the applicant’s claim for reimbursement.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 16 June 2021
0
10
0