Stuke v ROST Capital Group Pty Ltd - [2012] FCA 1097

FEDERAL COURT OF AUSTRALIA
Stuke v ROST Capital Group Pty Ltd [2012] FCA 1097

Citation: Stuke v ROST Capital Group Pty Ltd [2012] FCA 1097

Parties: ALEXANDER STUKE v ROST CAPITAL GROUP PTY LTD, CROWN 2 PTY LTD, GRIGORY ROZENTSVET and SERGE ROZENTSVET

File number: NSD 332 of 2011

Judge: KATZMANN J

Date of judgment: 8 October 2012

Catchwords: PRACTICE AND PROCEDURE – Witnesses – Application for overseas witness to give evidence by video link – power to make the order – exercise of the discretion – important witness – where credit of witness is in issue – evidence to be given through interpreter

Legislation: Federal Court of Australia Act 1976 (Cth), ss 37M, 47A, 47C

Cases cited:
Abalos v Australian Postal Commission (1990) 171 CLR 167
Australian Competition & Consumer Commission v StoresOnline International Inc [2009] FCA 717
Australian Competition and Consumer Commission v World Netsafe Pty Ltd (2002) 119 FCR 303
Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd (2001) 53 NSWLR 1
Australian Securities and Investments Commission v Rich [2004] NSWSC 467
Blackrock Asset Management Australia Services Limited v Waked (No 2) [2011] FCA 479
Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152
Fox v Percy (2003) 214 CLR 118
K v S (2001) 161 FLR 71
Kirby v Centro Properties Ltd (2012) 288 ALR 601

Mastipour v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 140 FCR 137
Odhiambo v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 29

Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (unreported, NSWSC, Giles CJ Comm D, 11 March 1997)
Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261
Versace v Monte [2001] FCA 1454

Date of hearing: 5 October 2012

Place: Sydney

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 39

Counsel for the Applicant: Mr J Darams

Solicitor for the Applicant: Clayton Utz

Counsel for the Respondents: Mr RE Dubler SC and Mr DW Rayment

Solicitor for the Respondents: Piper Alderman

IN THE FEDERAL COURT OF AUSTRALIA

NSW DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 332 of 2011

BETWEEN:
ALEXANDER STUKE
Applicant

AND:
ROST CAPITAL GROUP PTY LTD
First Respondent

CROWN 2 PTY LTD
Second Respondent

GRIGORY ROZENTSVET
Third Respondent

SERGE ROZENTSVET
Fourth Respondent

JUDGE:

KATZMANN J

DATE OF ORDER:

8 OCTOBER 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1. The application to take evidence from Veila Ayala Aguirre by video link from Mexico be refused.
2.The question of costs be reserved.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NSW DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 332 of 2011

BETWEEN:
ALEXANDER STUKE
Applicant

AND:
ROST CAPITAL GROUP PTY LTD
First Respondent

CROWN 2 PTY LTD
Second Respondent

GRIGORY ROZENTSVET
Third Respondent

SERGE ROZENTSVET
Fourth Respondent

JUDGE:

KATZMANN J

DATE:

8 OCTOBER 2012

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This is a dispute arising…

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: [2012] FCA 1097
Decision Date: 8 October 2012

CaseChat Overview and Summary

Stuke v ROST Capital Group Pty Ltd involved an application by ROST Capital Group Pty Ltd for two of its witnesses, Veila Ayala Aguirre and César Gamboa Sainz, to give evidence via video link from Mexico. The application was opposed by the plaintiff, Stuke. The matter was heard in the Federal Court of Australia, focusing on the application concerning Ms Aguirre. The key legal issue was whether the court should exercise its discretion to allow evidence to be given by video link, considering the importance of the witness and the potential impact on their credit.

The court considered the nature of the evidence to be provided by Ms Aguirre, who was described as an important witness. The application was supported by affidavits, including one from a solicitor who had communicated with Ms Aguirre and confirmed her reluctance to travel to Australia. Ms Aguirre expressed concerns about her job and the responsibility of looking after her step-daughter. The court also noted that Ms Aguirre would require an interpreter to give her evidence, which would further complicate the process of giving evidence by video link. Given these factors, the court determined that the application should be refused.

The Federal Court concluded that the application to take evidence from Ms Aguirre by video link from Mexico should be refused. The court emphasized the importance of the witness and the potential impact on her credit. Additionally, the need for an interpreter added another layer of complexity. The court reserved the question of costs, indicating that it would be addressed at a later stage. The refusal of the application meant that Ms Aguirre would need to travel to Australia to give her evidence in person.

Orders

Orders of the court

1. The application to take evidence from Veila Ayala Aguirre by video link from Mexico be refused.

2. The question of costs be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Two of the witnesses ROST wishes to call live and work in Mexico. They are Veila Ayala Aguirre and César Gamboa Sainz (Mr Gamboa). No affidavits have been taken from them but outlines (or, more accurately, summaries) of their evidence have been filed and served. By an interlocutory application filed on 28 September 2012 ROST apply to have their evidence taken by video link. Mr Stuke opposes the application. At ROST’s request, the application for Mr Gamboa to give evidence by video link has been stood over to the first day of the trial. This judgment is therefore concerned only with the application concerning Ms Aguirre.THE EVIDENCE IN SUPPORT OF THE APPLICATION The application is supported by three affidavits. One, sworn by Kelly Ruth Douglas, a solicitor employed by Piper Alderman, which acts for ROST, deposes to two conversations with Ms Aguirre, the effect of which is that she is reluctant to come to Australia. Ms Douglas said that on or about 9 May 2012 she telephoned Ms Aguirre on her mobile phone in Mexico and spoke to her. She does not state what language she used but, in the absence of any evidence that she speaks Spanish, I infer the language was English. This is important because I was informed (only after specific enquiry) that Ms Aguirre would require an interpreter to give evidence. Ms Douglas said the conversation was in words to the following effect:Ms Douglas:Our clients would like you to give evidence at trial about your experience.Ms Aguirre:Of course. But I work here full time with a very complicated job. I can’t get time off work, and it’s very far to fly to Australia.Ms Douglas:Where do you work?Ms Aguirre:I work at a company that does administration and accounting, and my job has a lot of responsibility. It is an international company.Ms Douglas:Do you think you could have time off for one day or maybe two days to give evidence in Mexico over a video link?Ms Aguirre:What is video link?Ms Douglas:It is like a Skype call between you in Mexico and the court in Australia. We will be in Sydney and the lawyers will ask you questions that you can answer over the video. The court room can see you when you are speaking and you can see the court room in Australia.Ms Aguirre:Oh yes. Yes, I can do that. This would be much better for me because of my job. I am scared to lose my job if I am away for too long and [evidence rejected]. Ms Douglas said that she had a second telephone conversation with Ms Aguirre (presumably also in English) on or about 25 September 2012 in words to the following effect:Ms Aguirre:Can I give evidence over video link?Ms Douglas:I am not sure yet. You may need to come to Australia to give evidence.Ms Aguirre:That is very difficult for me. I still have the same job. I am now in charge of invoicing so I have a lot of responsibility. I cannot take time away except for weekends. The weekend is maybe not even enough time to fly to Australia from here. I also have to look after my 6 year old step daughter.Ms Douglas:Do you look after her all the time or only some of the time.Ms Aguirre:Yes, all of the time.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Stuke v ROST Capital Group Pty Ltd [2012] FCA 1097
Parties:		ALEXANDER STUKE v ROST CAPITAL GROUP PTY LTD, CROWN 2 PTY LTD, GRIGORY ROZENTSVET and SERGE ROZENTSVET
File number:		NSD 332 of 2011
Judge:		KATZMANN J
Date of judgment:		8 October 2012
Catchwords:		PRACTICE AND PROCEDURE – Witnesses – Application for overseas witness to give evidence by video link – power to make the order – exercise of the discretion – important witness – where credit of witness is in issue – evidence to be given through interpreter
Legislation:		Federal Court of Australia Act 1976 (Cth), ss 37M, 47A, 47C
Cases cited:		Abalos v Australian Postal Commission (1990) 171 CLR 167 Australian Competition & Consumer Commission v StoresOnline International Inc [2009] FCA 717 Australian Competition and Consumer Commission v World Netsafe Pty Ltd (2002) 119 FCR 303 Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd (2001) 53 NSWLR 1 Australian Securities and Investments Commission v Rich [2004] NSWSC 467 Blackrock Asset Management Australia Services Limited v Waked (No 2) [2011] FCA 479 Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 Fox v Percy (2003) 214 CLR 118 K v S (2001) 161 FLR 71 Kirby v Centro Properties Ltd (2012) 288 ALR 601 Mastipour v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 140 FCR 137 Odhiambo v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 29 Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (unreported, NSWSC, Giles CJ Comm D, 11 March 1997) Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 Versace v Monte [2001] FCA 1454
Date of hearing:	5 October 2012
Place:	Sydney
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	39
Counsel for the Applicant:	Mr J Darams
Solicitor for the Applicant:	Clayton Utz
Counsel for the Respondents:	Mr RE Dubler SC and Mr DW Rayment
Solicitor for the Respondents:	Piper Alderman

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
FAIR WORK DIVISION	NSD 332 of 2011

JUDGE:	KATZMANN J
DATE OF ORDER:	8 OCTOBER 2012
WHERE MADE:	SYDNEY

JUDGE:	KATZMANN J
DATE:	8 OCTOBER 2012
PLACE:	SYDNEY