Southernwood v Brambles Limited (No 2)

Southernwood v Brambles Limited (No 2) involved an application by Brambles Limited to have the evidence of two witnesses, Mr Martin and Ms Nador, heard via video link from the United States. The witnesses were unable or unwilling to travel to Australia to give evidence in person. Both witnesses were significant to the matters in dispute in the securities class action. The application was made a short time before the trial. The court had to determine whether it was in the interests of justice to permit the witnesses to give evidence via video link.

The court considered the legal principles that guide the exercise of discretion under section 47A(1) of the Federal Court of Australia Act, which includes ensuring that justice is done between the parties and facilitating the just resolution of disputes according to the law. The court also considered the difficulties associated with cross-examination via video link, including the assessment of witness credibility. The court concluded that while Brambles’ arguments in relation to Mr Martin had some force, it saw little force in the application in respect of Ms Nador. The application was ultimately dismissed, as it was in the interests of justice for the witnesses to give evidence in person. The court noted the similarity to Dorajay, where the application to hear a witness’s evidence by video link was also refused due to the difficulties associated with video link evidence.

The court's decision was based on the importance of oral evidence being given directly to the court, and the entitlement of the opposing party to insist upon the physical presence of a witness for cross-examination. While Brambles had argued that video link evidence was preferable due to the witnesses' work commitments, the court concluded that the other considerations outweighed Brambles' arguments. The court emphasised that it was for Brambles to establish that an order to permit video link evidence would facilitate the just resolution of the dispute according to the law and as quickly, inexpensively and efficiently as possible.

The final orders of the court were that the interlocutory application dated 28 July 2022 was dismissed. The court noted that the question of costs was not raised by the parties, but if either party wished to submit that some other costs order was appropriate, they should file short submissions within seven days. Otherwise, the court would order that Brambles pay the costs of and incidental to the application.