Direction permitting evidence by videolink (pandemic orders)

In Palmer v McGowan (No 2) (2022) 398 ALR 524;  [2022] FCA 32, Lee J, addressing such direction by reference to the relevant provisions of the Federal Court of Australia Act 1976 (Cth) declined to make the same:

INTRODUCTION

[1]  These are my reasons for making orders last Tuesday briefly deferring the commencement of a defamation case whereby a high profile businessman and one time (and aspiring) politician is suing a head of government, and the head of government, in response, is suing the businessman. Each proposes to give evidence. Given the nature of that evidence and the other bespoke circumstances of this case, if the claimant witnesses were butchers, bakers or candlestick makers (on the unrealistic premise they could afford defamation proceedings), I would hold the prima facie view that in order to determine the case justly, it would be best that their evidence be given in person: there is nothing about the identity of the present proposed witnesses that means a different course should be adopted. My preliminary view about the importance of evidence being adduced orally in this case has long been made clear during the course of case management hearings.

[2]  One party, Mr Palmer, asked to be treated differently because he was unvaccinated with a COVID-19 vaccine. That application was not pressed.

[3]  Then, a few days before the scheduled commencement of the trial, the other party, Mr McGowan, as the Member for Rockingham in the Legislative Assembly of Western Australia and the Premier and Treasurer of Western Australia, sought orders that he and Mr Quigley (the first law officer of Western Australia), be permitted to give evidence remotely by audio-visual link (AVL); or alternatively, that the trial be vacated.

“This might be termed the “leisure wear” effect.”

[4]  Ultimately, the alternative orders sought in the interlocutory application were not pressed following a proposal I advanced to Senior Counsel for Mr McGowan, Mr Walker SC, during argument, that I was open to making procedural orders which would accommodate Mr McGowan and Mr Quigley attending Court on specific days next month. My reason for exercising this discretion to defer taking their evidence relates to privileges enjoyed by them solely by reason of their status as members of one of the Houses of the Parliament of Western Australia. Although the Premier and Attorney-General require some accommodation to ensure there is no fetter on them attending sittings of Parliament, to the extent possible, the orders I made on Tuesday recognise that these witnesses (like Mr Palmer) should be treated like any other witness expected to give evidence of the type anticipated. Neither party now presses a contrary position.

…

WHY IN PERSON EVIDENCE IS NECESSARY IN THIS CASE

[30]  One of the reasons why the Court has been able to adapt so readily to the challenges presented by the pandemic, is that AVL technology has been in use in the Court for many years and, in an antevirus world, a series of cases had established that its use in a hearing was a matter for the primary judge’s discretion to be exercised in accordance with the singular circumstances of a case.

[31]  As Professor Michael Legg and Anthony Song explain in their useful article, “The Courts, the Remote Hearing and the Pandemic: From Action to Reflection” (2021) 44(1) UNSWLJ 6 , post-pandemic, courts around the world rapidly shifted to remote hearings. Indeed, “balancing public health directives with the need to continue upholding the rule of law, what followed has been the largest, unforeseen mass-pilot of remote hearings across the world”.

[32]  What is envisaged is not, of course, a remote hearing, but the lessons learned over the last two years of remote hearings have accelerated and vastly increased the experience of judges in taking evidence by video.

[33]  In this defamation case, a judge is the tribunal of fact. Section 47(3) of the Federal Court of Australia Act 1976 (Cth) (FCAA) provides that at a trial of a proceeding the Court may at any time, for sufficient reason and on such conditions as are necessary in the interests of justice, direct or allow proof by affidavit to such extent as the Court thinks fit.

…

[36]  Affidavits-in-chief have been served by both claimants and hence the evidence in chief of both Mr Palmer and Mr McGowan will be adduced by way of reading their affidavit. This is subject, however, to the indication I made when I took over the case management of this case, which is consistent with my usual practice and which I will formalise by way of an order, that any evidence relevant to the alleged distress, upset and injury to feelings occasioned by the defamatory publication by either claimant is to be adduced in chief orally.

[37]  As will no doubt already be obvious, each claimant and Mr Quigley are to be cross-examined. Subject to an order being made under s 47A, this testimony at the trial “shall be given orally in court”: see s 47(6).

[38] Section 47A(1) relevantly provides that the Court may “direct or allow testimony to be given by video link, audio link or other appropriate means”. There is little gained by any discussion of earlier cases applying this section (which was introduced in 2002) and its predecessor (in relatively identical terms, being s 47(1A)). Many of the earlier cases, which often turn on their own facts, reflect a wariness of video evidence at a time when the technology was less secure and reliable. It is sufficient to note that as Perram J observed in Capic v Ford Motor Co Ltd (Adjournment) [2020] FCA 486 (at [19]):

… there are many authorities in this Court which underscore the unsatisfactory nature of cross-examination by video-link: see, eg, Hanson-Young v Leyonhjelm (No 3 ) [2019] FCA 645 at [2]; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; 181 FCR 152 at 171 [78]. However, those statements were not made in the present climate, nor were they made with the benefit of seeing cross-examination on platforms such as Microsoft Teams, Zoom or Webex. My impression of those platforms has been that I am staring at the witness from about one metre away and my perception of the witness’s facial expressions is much greater than it is in Court. What is different — and significant — is that the video-link technology tends to reduce the chemistry which may develop between counsel and the witness. This is allied with the general sense that there has been a reduction in formality in the proceedings. This is certainly so and is undesirable. To those problems may be added the difficulties that can arise when dealing with objections.

[39]  See also the similar comments of Jackson J in Australian Securities and Investments Commission v Wilson (No 2) [2021] FCA 808; (2021) 153 ACSR 649 (at 662 [44]), that the Court now has more experience with taking contentious evidence by video link and more confidence in its efficacy.

“… if the claimant witnesses were butchers, bakers or candlestick makers (on the unrealistic premise they could afford defamation proceedings), I would hold the prima facie view … it would be best that their evidence be given in person”

[40]  In some cases it has been suggested that provided the pre-conditions set out in s 47C are established, which relate the technical sufficiency of the link (and are not presently in issue), the discretion to make an order allowing for remote testimony is at large. This is not now strictly accurate by reason of the introduction of Pt VB of the FCAA. In particular, s 37M(3) provides that any civil practice and procedure provision (which includes s 47A) must be interpreted and applied, and any power conferred by the provision must be exercised or carried out, in a way that best promotes the overarching purpose. In accordance with the dictates of s 37M(1) of the FCAA, the overarching purpose is, of course, the facilitation of the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Although expressed somewhat differently, this is consistent with the remarks made by Flick J in Corrigan v Commvault Systems (Australia) Pty Ltd [2011] FCA 107; (2011) 192 FCR 71 (at 75 [12]) and Besanko J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 627; (2015) 231 FCR 531 (at 537–538 [16]), that: (a) it is for the party seeking the favourable exercise of the discretion to establish the reason for its exercise having regard to the specific facts and circumstances and the overriding consideration of ensuring that justice is done as between the parties to the proceeding; and (b) there is no presumption nor prima facie case as to the way in which the discretion is to be exercised in the absence of countervailing considerations.

[41]  I readily accept that it would have been be quicker, less expensive and more efficient for the evidence of Mr McGowan and Mr Quigley (and Mr Palmer for that matter) to be given by way of video link. The reason for my indication at case management hearings that I was not disposed to take this course is because I did not consider such a course would be consistent with the interests of justice or, to put it in the terms of the overarching purpose, would be the course which best facilitates the just resolution of this case according to law. Although I indicated I was open to persuasion, as I have noted, no application by either party to give evidence by video link is now pressed.

[42]  But it is worth explaining my preliminary view because it is the critical factor informing the orders I have now made. It was reached for two reasons. The first is that consistently with the view that I have formed in other cases, I will be best assisted by assessing the evidence as to hurt to feelings by closely observing the claimants giving that evidence, not only orally but also in close physical proximity. The second is the likely central importance of cross-examination to the determination of the facts-in-issue in this case.

[43]  Not only does receiving the evidence of the witnesses in person maintain fluidity between the witness, counsel and the judge, but there is much to be said about a witness coming into the usually unfamiliar confines of a courtroom, swearing an oath or taking an affirmation in a witness box to tell the truth, and proceeding to give evidence on oath or affirmation in the physical presence of counsel and the judge. There is a solemnity about the giving of evidence, and the formalities reinforce it.

[44]  In taking this view I am cognisant of the fact that a number of judges of this Court, including me, in cases such as ASIC v GetSwift (at [33]), Tetley v Goldmate Group Pty Ltd [2020] FCA 913 (at [16] per Bromberg J), Auken Animal Husbandry Pty Ltd v 3rd Solution Investment Pty Ltd [2020] FCA 1153; (2020) 147 ACSR 521 (at 530 [49] per Stewart J), and Universal Publishing Music Pty Ltd v Palmer [2020] FCA 1472 (at [32] per Katzmann J), have expressed a degree of satisfaction and indeed enthusiasm as to the receipt of evidence at remote hearings, even in cases where credit is in issue. In many cases it is highly suitable for hearings to be conducted remotely. There have been less enthusiastic views expressed, but it is noteworthy that a number of the particularly favourable references to remote hearings in complex cases were made in 2020, at an early stage of the “unforeseen mass-pilot of remote hearings”. At least as far as I am concerned (and I am aware my view is not unique), accumulated experience and subsequent reflection has caused views of at least some to evolve. Most relevantly, my view is no longer the same as it was before the experience of the last twenty months or so.

[45]  In relation to many witnesses, including highly intelligent professionals, I have come to appreciate a somewhat different dynamic between the witness and the cross-examiner than is present at an orthodox hearing. Speaking generally, the witness feels an additional degree of comfort in being physically remote from the courtroom and being in their own surroundings. Incidentally, a tell-tale indication of this more “relaxed” environment is often seen by witnesses being far more casually attired than would be the case if they came into Court. This might be termed the “leisure wear” effect. Further, as much as courts seeks to reproduce the solemnity of a traditional hearing while operating online, at least in my experience, there a distinct difference in atmosphere. It is jejune to assume that exchanges (which may include confrontational exchanges) between two persons in close physical proximity to one another, is the same as exchanges that occur in the less intimate world of a video link.

[46]  Related to this point, is that increasingly I have felt a nagging disquiet that I may perhaps be missing something in assessing the evidence of a witness by reference to the tone of voice or non-verbal signals. As time has gone on, it is has become more evident to me that in an audio-visual feed, minor differences in emphasis or tone can be more difficult to appreciate and assess.

[47]  It has, of course, become common for scepticism to be expressed about the advantage that trial judges enjoy in seeing a witness give evidence. But despite these well-founded criticisms and the fact that by video a judge can observe the manner of giving evidence remotely, based on my experience in recent times, I consider I have a better prospect of understanding the subtleties and nuances of the sort of evidence to be given in the present case, if it is given in person. Credit is likely to be a factor in resolving at least some issues in this case. It is unnecessary to be more specific for present purposes, but I cannot discount the possibility that in this case (and these assessments are always case-specific) the close and careful assessment of the evidence-in-chief may be relevant in properly fixing any award of damages to either claimant based on consolation for hurt, and evidence given in cross-examination may be an important factor which assists me in justly determining this controversy.

“… the video-link technology tends to reduce the chemistry which may develop between counsel and the witness.”

THE DEFERRAL ORDERS

[48]  As noted above, the reason I proposed the split in the taking of the evidence in this case is that I recognise that the Court should not impair Mr McGowan and Mr Quigley attending a sitting of the Legislative Assembly. In reaching this conclusion, I express no view, one way or another, on their evidence adduced on this application as to subjective perceptions of risk or their future intentions, but I accept the practical effect of that evidence is that they consider they cannot attend a sitting of the Legislative Assembly within 14 days of their return to Western Australia.

(emphasis added)

In the subsequent decision of Liu v Option Funds Management Ltd [2022] FCA 444, Wigney J wrote, granting such a direction:

Ex tempore

[1]  The hearing of this matter has been listed to commence on 6 June 2022. The plaintiffs have applied for an order that the second plaintiff be permitted to give evidence at the hearing via video link from the Peoples Republic of China. That application is opposed by the defendant.

[2]  For the reasons that follow, I am prepared to permit the second plaintiff to give evidence at the hearing via video link.

…

[37]  The question for consideration for the Court is, essentially, whether it would be in the best interests of the administration of justice to permit Mr Zhu to give his evidence at the trial via video link from China. That question involves a balancing exercise, having regard to the particular facts and circumstances of the case. The exercise of the power in s 47A(1) of the FCA Act must also be considered in the context of s 37M of the FCA Act. That provision dictates that the civil practice and procedure provisions, which would include s 47A, must be interpreted and applied in a way which best promotes the overarching purpose, which is the facilitation of the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.

[38]  Having considered all of the evidence and the arguments advanced by the parties, I am persuaded that the balance tips in favour of permitting Mr Zhu to give his evidence via video link. Permitting Mr Zhu to give his evidence via video link would be in the best interests of the administration of justice in all the circumstances.

[39]  I accept that, as a general proposition, it would ordinarily be preferable for oral evidence to be given in person in court. The Court is generally best assisted by being able to observe a witness in person when they give evidence, particularly when the demeanour of the witness may be relevant in assessing the credibility of the witness and the reliability of their evidence.

[40]  The Court has, of necessity, become more familiar in recent times with receiving evidence via video link. My own view, however, is that that process is very much a second-best alternative. It may be acceptable where necessary or appropriate, but is rarely preferable to receiving the evidence in person in court. There could also be little doubt that the examination-in-chief and cross-examination of a witness by counsel flows better and is much easier to follow when it occurs in person rather than via a screen. That is all the more so when interpreters are involved, or where the witness has to be taken to numerous documents.

“… I will be best assisted by assessing the evidence as to hurt to feelings by closely observing the claimants …”

[41]  There is also much to be said for the proposition that the overall process of taking evidence from a witness is aided by the solemnity of the occasion whereby the witness is required to enter a courtroom and give an oath or affirmation in the presence of the judge, counsel and solicitors. There is very little solemnity involved when evidence is given via video link from a remote location: see generally the discussion in Palmer v McGowan (No 2) [2022] FCA 32 at [38] -[45] (Lee J).

[42]  The fact that the interests of justice are generally best facilitated by oral evidence in court, as opposed to evidence via video link is no doubt relevant and in some cases important. It is not, however, determinative.

[43]  One of the critical consideration in this case is that, as discussed earlier, Mr Zhu’s evidence is fairly short and, for the most part, relatively uncontentious and concerns events or circumstances which, in the context of the case as a whole, are relatively inconsequential. I accept that the need to assess the nature of Mr Zhu’s relationship with Mr Cao and other issues surrounding the plea of special disadvantage and unconscionability may require the assessment of certain nuances or subtleties in Mr Zhu’s evidence. I do not, however, consider that those issues are likely to be materially harder to assess if Mr Zhu’s evidence is to be given via video link.

[44]  Mr Zhu’s current state of health also weighs heavily in favour of permitting him to give evidence via video link. There is no dispute that Mr Zhu was diagnosed with cancer and underwent a major operation just over three years ago. There is also no dispute that he received chemotherapy up until fairly recent times. That treatment has given rise to some deleterious side effects and conditions. While it is true that the medical evidence did not directly state that those side effects or conditions would be exacerbated, or would cause Mr Zhu any particular difficulties if he was required to travel to Australia, there is no real reason to doubt that that would be the case.

[45]  There is then also the issue of COVID-19. As has already been noted, Mr Zhu has not been able to be vaccinated because of the state of his health. His unvaccinated state is not a mere matter of choice. He has a legitimate medical reason for not being vaccinated. The fact that Mr Zhu is unable to be vaccinated against COVID-19 undoubtedly places him in a position of some vulnerability. I do not think that it was necessary for Ms Liu and Mr Zhu to adduce specific medical evidence in respect of that vulnerability. Nor do I consider that it was necessary for them to have adduced specific medical evidence or other direct evidence in support of the proposition that Mr Zhu’s chances of contracting COVID-19 may be increased if he is required to engage in international travel. It could not seriously be doubted that Mr Zhu’s chances of contracting COVID-19 would be increased if he was required to attend places, such as international airports, where large numbers of people congregate.

[46]  It may be accepted that the criticisms of some of the evidence relied on by Ms Liu and Mr Zhu, particularly in relation to travel restrictions in China, have some merit. That said, the evidence does tend to suggest that the situation concerning lockdowns and other restrictions in parts of China as a result of COVID-19 remains fairly fluid and unpredictable. While the barriers or impediments arising from the conditions in China may not be insurmountable, nor can they be dismissed as necessarily trivial or irrelevant. I do not, however, accept that Mr Zhu would be likely to encounter any material impediments in terms of entering Australia, either arising from his current visa situation or from his unvaccinated status.

[47]  As discussed earlier, I do not accept Option and Mr Cao’s submission that Chinese law prohibits or prevents Mr Zhu from giving evidence via video link. Nor do I accept the submission that the Court may somehow contravene art 284 of the Civil Procedure Law if Mr Zhu’s evidence is permitted to be given via video link from China. Considerations of comity or sovereignty accordingly do not arise. It may nevertheless be prudent for Mr Zhu’s legal advisers to take steps to notify relevant authorities in China that Mr Zhu will be giving evidence in these proceedings via video link from China at his request.

…

[49]  In all the circumstances, the balance tips in favour of permitting Mr Zhu to give his evidence by video link. In my view, that would be in the best interests of the administration of justice. It would also be consistent with the overarching purpose of the Court’s civil procedure. Accordingly, I propose to make an order, in terms sought in the interlocutory application, that leave be granted to the second plaintiff to give evidence at the hearing of the proceeding commencing on 6 June 2022 for an estimate of five days by way of audio-visual link. As noted earlier, it may turn out to be necessary to make more specific orders in due course which deal with the precise location from which Mr Zhu is to give evidence and the particular facilities that are to be utilised. The parties should confer and liaise with the Court’s registry in relation to those matters. (emphasis added)