Burden v Debonaire Furniture Ltd

The case of Burden v Debonaire Furniture Ltd concerns allegations of copyright infringement and breach of the Fair Trading Act 1986, with the plaintiffs, Ian James Burden and others, claiming that furniture imported by Debonaire Furniture Limited infringes their copyright and breaches the Fair Trading Act. The defendants, including Debonaire Furniture Limited, deny the allegations and have counterclaimed against the plaintiffs. The second, third, and fourth defendants deny the claim but do not appear to be taking active steps in the proceeding. The first, fifth, and sixth defendants applied for two witnesses, Edwin Elting and Craig Morrow, to give evidence via audio-visual link (AVL) from the United States and Vietnam respectively. The plaintiffs opposed the application, arguing that the balance of convenience did not favour AVL and questioning the credibility of the witnesses.

The court considered several issues, including the nature of the proceeding, the availability and quality of technology, the potential impact of AVL on the assessment of credibility, the availability of sanctions for perjury, and the views of the witnesses. The court found that the evidence of Elting and Morrow was critical to the defendants' case, and their absence would likely result in the loss of important evidence. The court noted that AVL was now a routine and accepted feature of litigation, and there was no indication of technical problems. The court also found that the credibility of the witnesses could still be assessed despite the use of AVL, and the lack of sanctions for perjury in Vietnam did not materially alter the position.

The court concluded that it was appropriate for both witnesses to give evidence by AVL, taking into account the fairness of the proceeding, the views of the witnesses, and their ability to assess the credibility of the evidence. The court granted the application and directed that the draft protocol for the use of AVL should apply, subject to certain conditions.

The final orders included granting the application for the witnesses to give evidence by AVL, directing the inclusion of specific conditions in the protocol, and addressing any issues as to costs within a specified timeframe.