RSPCA (Vic) Inc v Burwood Developments Pty Ltd

[2012] VSC 628

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT

No. 02778 of 2012

THE ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (VIC) INC	Plaintiff
v
BURWOOD DEVELOPMENTS PTY LTD (ACN 105 384 905)	Defendant
BURWOOD DEVELOPMENTS PTY LTD (ACN 105 384 905)	First Plaintiff by Counterclaim
And
BURGUNDY TWO PTY LTD (ACN 071 195 429)	Second Plaintiff by Counterclaim
v
THE ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (VIC) INC	Defendant by Counterclaim

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 NOVEMBER 2012
DATE OF RULING:	28 NOVEMBER 2012
CASE MAY BE CITED AS:	RSPCA (VIC) INC v BURWOOD DEVELOPMENTS PTY LTD
MEDIUM NEUTRAL CITATION:	[2012] VSC 628

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PRACTICE AND PROCEDURE — Application to take evidence by video link — Section 42E(1) Evidence (Miscellaneous Provisions) Act 1958 — Discretionary considerations – Requirement to make out a case for such an order where it is opposed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr K Hanscombe SC with Mr C Truong	Coors Chambers Westgarth
For the Defendant and First Second Plaintiff by Counterclaim	Mr P Riordan SC with Mr J Moore	Minter Ellison

HIS HONOUR:

1. This is an application made by the Defendant, Burwood Developments Pty Ltd and Second Plaintiff by Counterclaim, Burgundy Two Pty Ltd (together known as “Burwood and Burgundy”), to call a Mr John Hunter to give evidence by way of video link pursuant to s 42E(1) of the Evidence (Miscellaneous Provisions) Act1958 (“the Act”).  This section provides that

[s]ubject to section 42F and to any rules of court, a court may, on its own initiative or on the application of a party to the legal proceeding, direct that a person may appear before, or give evidence or make a submission to, the court by audio visual link or audio link from any place within or outside Victoria, or outside Australia, that is outside the courtroom or other place where the court is sitting.

1. Section 42F concerns special provisions applicable to certain proceedings involving children and is not relevant to this application. 

1. The Act therefore allows the Court to exercise a discretion in relation to the calling of evidence in this form, subject to what is provided in s 42E(2) relating to the technical requirements being satisfied to facilitate such a video link.

1. In this application it is not disputed that the Court has a facility of an adequate technical nature to provide a video link facility pursuant to s 42E(2). The discretion provided by s 42E(1) is at large and lies within the province of the Court to be exercised on proper principles.

1. There are provisions in the Act which indicate that the normal and usual course for the Court to follow is to conduct a case by way of oral evidence. I do not regard the calling of evidence by video link pursuant to s 42E as other than the conduct of the trial by oral evidence. It is simply evidence called orally in a different form.

1. Nevertheless, I must take into account the issues that have been raised by the Plaintiff, RSPCA (“RSPCA”), in this application.

1. In support of their application, Burwood and Burgundy rely upon the affidavit of their solicitor, Ms Michelle Power.  In that affidavit Ms Power refers to a number of matters which give rise to inconvenience if Mr Hunter is called to give evidence in Court as opposed to being provided with the facility to give evidence by way of video link.  These inconveniences include:

(a)Mr Hunter resides in Los Angeles in the United States of America;

(b)      Mr Hunter usually travels to Australia once a year in about July;  

(c)       Mr Hunter was last in Australia in July of this year;  and

(d)Mr Hunter has a meeting with the Mayor of the City of Coachella and several of the Mayor's staff today, Monday, 26 November 2012, concerning a development in that municipality.

1. Central to the issue as to whether or not it is appropriate for Mr Hunter to give evidence by way of video link is the nature of his evidence.  Mr Hunter is referred to in the pleadings, namely in the particulars to paragraph 54 of the Amended Defence to the Amended Statement of Claim and the particulars to paragraph 10E of the Amended Reply.

1. It is put by Burwood and Burgundy that Mr Hunter's evidence is peripheral to the central issues in the case, and this is so because his evidence will be supported by documentary evidence to be relied upon by them.  Nevertheless, it is put by Dr Hanscombe, who appeared for the RSPCA on this application and at the trial, that Mr Hunter's evidence is not peripheral at all and that his state of mind is directly relevant to an important issue raised in the pleadings on the part of the RSPCA.

1. The RSPCA intends to put a number of documents to Mr Hunter.  The procedures of the video link can be availed to sufficiently address documents to be put to a distant witness.

1. However, of note is the observation in the affidavit of Ms Power that based on her knowledge of the proceeding and her experience, she would expect Mr Hunter's evidence and cross-examination to take up to half a day.  That would tend to indicate that Mr Hunter's evidence is likely to take up to and indeed could exceed one half day within the ambit of the estimate given.  That is a factor to be taken into account in assessing this application and exercising the Court's discretion.

1. The Court was referred by Dr Hanscombe to the judgment of Buchanan J in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 303).[1]  His Honour made reference to the position that the trend of authority seemed to emphasise the need for a persuasive case to be made out to use a video link to take evidence, particularly to impose it on an unwilling cross-examining party rather than the reverse.[2]  In this case, RSPCA finds itself in the position of an unwilling cross-examining party.

   [1]Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 303) [2009] FCA 1306 [61]-[78].

   [2]Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 303) [2009] FCA 1306 [77].

1. His Honour then went on to refer to the desirability of calling a witness live, as it were, as opposed to calling a witness through a video link.  I refer to and adopt the observations, where his Honour 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.[3]

[3]Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 303) [2009] FCA 1306 [78].

1. It seems to me that on the balance, the inconvenience to Mr Hunter and indeed the cost, is outweighed in this case by the need to ensure that the RSPCA has adequate and full opportunity to cross-examine Mr Hunter, who appears to be central to one element of the pleaded case on the part of the RSPCA.  For this reason I refuse the application for the video link.

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