FEDERAL COURT OF AUSTRALIA Tetley v Goldmate Group Pty Ltd [2020] FCA 913 File number(s): NSD 667 of 2019 Judge(s): BROMWICH J Date of judgment: 17 June 2020 Date of publication of reasons: 29 June 2020 Catchwords: PRACTICE AND PROCEDURE – application to adjourn – where Court will be required to decide between two competing accounts on at least one of the issues at trial – where a remote hearing will impede the ability to obtain instructions in a timely manner – application granted. Cases cited: Capic v Ford Motor Company [2020] FCA 486 Haiye Developments v The CBC [2020] NSWSC 732 JKC Australia LNG v CH2M Hill Companies Limited [2020] WASCA 38 Quirk v Construction, Forestry, Maritime, Mining and Energy Union (Remote Video Conferencing) [2020] FCA 664 Date of hearing: 17 June 2020 Registry: New South Wales Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 21 Counsel for the Applicant: Ms L Saunders Solicitor for the Applicant: Danny King Legal Counsel for the Respondents: Mr B Rauf Solicitor for the Respondents: People + Culture Strategies ORDERS NSD 667 of 2019 BETWEEN: ALEXANDER JAMES TETLEY Applicant AND: GOLDMATE GROUP PTY LTD First Respondent YUCHEN YANG Second Respondent BUYANG NI Third Respondent JUDGE: BROMWICH J DATE OF ORDER: 17 JUNE 2020 THE COURT ORDERS THAT: 1. The oral application to adjourn the trial listed for 22, 23 and 24 June 2020 be granted. 2. The matter be listed for trial on either 7–9 September 2020 or 28–30 October 2020, depending on the outcome of an application in another proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR GRANTING AN ADJOURNMENT APPLICATION Revised from transcript BROMWICH J: 1 This is an employment dispute, involving, inter alia, alleged civil penalty contraventions. It is a case in which there will be no alternative, in parts at least, to the Court deciding whose account to believe, not just who to prefer as a matter of reliability or understanding of what was said. 2 On 19 December 2019, the trial of this matter was listed for hearing for three days commencing on 22 June 2020. The procedural timetable to prepare the case for trial was varied on 10 March 2020, upon the expectation that the trial would proceed as scheduled. Ten days later, on 20 March 2020, my associate emailed the parties to explore the possibilities for upcoming listings in light of developments with the COVID-19 pandemic. At that stage the technological possibilities appeared to be telephone or an online hearing using Microsoft Teams. The email identified the advantages of Microsoft Teams, including the ability for relevant participants to see each other. The email advised that the Court would be hosting the Microsoft Teams platform, which would be accessed by parties by an email link directing them to the interface on a webpage, so parties would need to have access to a stable Internet connection with a bandwidth of at least 500 Kb per second (upload and download) and devices fitted with functional WebCams, speakers and microphones. The alternative of a telephone court hearing was also raised, but that does not need to be considered further. The parties were asked to advise whether either of those options would be viable possibilities on their part. 3 The solicitors for the applicant responded positively to utilising Microsoft Teams as being a platform that was already used to collaborate internally in that law firm. The respondents' solicitor also responded positively, not being opposed to the use of Microsoft Teams in principle, as again that platform was also used to collaborate internally in that law firm. However the respondents had a number of questions concerning largely practical issues in substance, so reserved their position. My associate responded on 23 March 2020, dealing with practical issues and indicating a willingness to conduct a telephone case management hearing if it was still necessary. The respondents responded indicating they were prepared to conduct the hearing as contemplated by the Court, but reserving a relisting if the central business district or parts of Sydney was shutdown making access between the lawyers impossible. 4 On 7 April 2020, my associate emailed the parties again, confirming that no final listing would be fixed or maintained if it did not continue to be viable to conduct the hearing on Microsoft Teams. The solicitor for the respondent replied by email on 8 April 2020 on behalf of the parties, expressing the view that the matter could appropriately be heard by Microsoft Teams, and saying there was no difficulty with access to suitable equipment. That email indicated that the parties considered it appropriate to request of the Court the right to revisit the agreement subject to the applicant's evidence in reply. Some other issues to do with the duration of the hearing were also addressed. Consent orders were made as attached to that email. 5 On the afternoon of Friday, 12 June 2020, an email was sent by the solicitors for the respondents advising that the parties would like to know whether this proceeding would still be heard by Microsoft Teams or whether, given that restrictions were easing, I was considering hearing the matter in court. The email indicated that the parties would were agreeable and would prefer a hearing in Court. 6 The following Monday, 15 June 2020, my associate emailed the parties advising that the Court had a limited capacity to hold a small number of hearings in person, and that, in order for that to take place, mere preference would not suffice. Rather, any party seeking a hearing in person must explain why it was essential to have a part or all of that hearing in person and the docket judge must support that assessment. Such a supported request would then be triaged by the Court to decide which hearings have priority so as to enable that to take place. The parties were asked to detail why it was essential that a part or all of the hearing be in person. 7 Yesterday, 16 June 2020, the solicitors for the applicant emailed advising that the parties, while they had, as at 8 April 2020 and expressed in an email on that day, been tentatively of the view that a Microsoft Teams hearing would be suitable, were unable to form a final view at that time. In particular, the applicant had not seen the respondents' material and the respondents had not seen the applicant's material in reply. The email stated that in light of the voluminous material now filed, and in particular the identification of the paragraphs in dispute, being a process that was completed only very recently (as it transpired, as recently as 9 June 2020), it was said that it was now clear that the hearing would require extensive examination-in-chief on key conversations in dispute, cross-examination of matters including credibility, noting that the disputes are such that findings as to credit may need to be made to resolve the matter, and a large number of complex documents which witnesses would need to be taken to. At the hearing today, 17 June 2020, it emerged that some of those characterisations were a little overstated, but in substance that remained the basis for the applicant seeking to vacate the hearing of his application until such time as an in-court hearing could take place. 8 The stance of the respondents yesterday was to consent to the application, but not to go so far as to actively support it in the sense of not regarding an in-court hearing as being essential. 9 The applicant's application to vacate the hearing date was listed for hearing on Microsoft Teams at 3:30 pm yesterday, 16 June 2020. In the email notifying parties that the matter had been listed, practitioners' attention was directed to Quirk v Construction, Forestry, Maritime, Mining and Energy Union (Remote Video Conferencing) [2020] FCA 664 at [6] and JKC Australia LNG v CH2M Hill Companies Limited [2020] WASCA 38 at [3]. Ms Saunders appearing for the applicant renewed the application previously made by email for the hearing to be vacated. She emphasised that this was a general protections case which also involved civil penalties. The nature of the case was that the respondents, both corporate and individual accessorial, had engaged in intentional wrong-doing. The case will turn on one witness for the applicant, being the applicant himself, and two witnesses for the respondents, being the natural person second and third respondents. 10 Ms Saunders emphasised the importance of body language in credit determination. She noted that whilst there were no interpreters involved, there were important cultural differences with the two respondent witnesses being of non-English speaking backgrounds. She noted that her client would be at his home or perhaps at his solicitor's office, but not with counsel. She noted that there would be difficulties in obtaining up-to-date instructions during the course of cross-examination of the respondents' witnesses. She again emphasised that this was not a case merely of differing recollections or even misunderstandings, but rather of a choice between two fundamentally different views as to what had taken place in a number of key conversations, especially in December 2018. She relied upon observations that have been made in a number of the cases dealing with this topic, being Capic v Ford Motor Company [2020] FCA 486; Haiye Developments v The CBC [2020] NSWSC 732. These cases ultimately turn on their individual facts, and the cases, whilst usefully stating some overarching principles, do not override the need for that individual assessment to take place. 11 It was noted that this is not a case in which there are any serious logistics issues. While there is a reasonable volume of material and some of the documents are complex, they are all in a single electronic court book and printed copies will be available to the witnesses both for their evidence-in-chief and cross-examination. The point that Ms Saunders was emphasising was that there was a fierce contest as to what had happened and she was concerned about the whole dynamic of the cross-examination process being of an inadequate quality. I should observe that Ms Saunders impressed me as being a calm and careful counsel, not given to overblown rhetoric or any degree of exaggeration. I took her concerns to be properly based and genuinely held. 12 At the hearing Mr Rauf for the respondents spoke in terms of the respondents consenting to the application and agreeing that an in-person hearing was more desirable, but falling short of characterising that is being essential. Mr Rauf, like Ms Saunders, is a calm and sensible counsel, and I took his position as being properly held and genuine. 13 There was various exchanges between myself and each of the counsel, trying to ascertain the true depths of the problems that might be encountered with an online hearing, as opposed to an in-court hearing. It emerged that for the conduct of the hearing the applicant would need to have three people in court being himself, his solicitor and counsel; and the respondents needing to have at any one time at least three in court being at least one of the natural person respondents, solicitor and counsel. I would be in court, and may or may not need to have an associate with me. It follows that the number of people in court would be somewhere between six and eight at any given time. 14 In further submissions Ms Saunders pointed out that this was not a lengthy hearing which would go off indefinitely, but rather a relatively short hearing in which case the use of court resources and the allocation of any priority to this case over other cases would be of a lesser magnitude. 15 I reserved the question overnight, finding myself somewhat surprisingly torn between the two options. It was not as clear-cut as I thought it would be. I arranged for the matter to be listed this afternoon, Wednesday, 17 June 2020, after a half day hearing in another matter in the morning. 16 Because it influenced my thinking in deciding this application, I also consulted with a number of my judicial colleagues, several of whom are presently conducting protracted online hearings which also involve questions of credit and cross-examination. Their experience was that there was no great diminution in the conduct of an online hearing compared to a hearing in court, with some of the obvious disadvantages being offset by some real advantages including a clearer view of the witness in the course of giving evidence-in-chief and in cross-examination online. 17 In an email in response to an email from my associate arranging for the matter to be listed for me to give my decision regarding the application to vacate the trial date, and perhaps anticipating that I might be more inclined to refuse the application, the solicitor for the respondents emailed to the effect that there would likely be difficulty in obtaining instructions from the individual respondents in relation to any evidence-in-chief produced from the applicant. The email stated that given the claims of contraventions made against them in their individual capacities, it would be important to ensure they have a proper opportunity to consider any such additional evidence and provide their instructions. The email stated that if the matter proceeds next week by video link, there may be some delay to facilitate individual respondents considering the applicant's evidence-in-chief. In those circumstances, the email again noted the respondents' consent to the applicant's application to vacate the trial date and submitted that as a matter of fairness to the parties, the hearing ought to proceed in-person. In making that submission by email, the respondents acknowledged that, if the hearing could not proceed in-person in the foreseeable future, then the respondents would be agreeable to the matter proceeding by video link during September or October 2020 as had been indicated at the hearing yesterday and subject to the court's availability. 18 At the resumption of the hearing this afternoon the following further submissions were made: 19 Ms Saunders said that the point raised by respondents' email had not occurred to her, but was a good one. Of course, she said, she faces the same difficulty getting instructions from the applicant if something unexpected emerges in the second and third respondents' evidence-in-chief, and such an occurrence is a very real possibility for all involved so it is a very significant factor. Ms Saunders also said that the application is of course not made solely on the basis that credit findings are required – that can be a feature of any case – it is that confluence of the fact that it is such a significant feature here, the particular importance of subjective intention, and the other particular features of the case. Ms Saunders agreed with Mr Rauf that it is a balancing act and it is a difficult one, and one in which the answer is going to vary week to week depending on the surrounding circumstances. Ms Saunders agreed with my proposition that there are matters in the case in which the Court will have no alternative but to decide whose account to believe, not just who to prefer as a matter of reliability or understanding of what was said. 20 Mr Rauf said that the proposition that the respondents had moved closer to the applicant's position was a fair assessment of the position. He said that on further reflection and instructions it occurred to the respondents that there might be some issues which needed to be navigated in terms of the individual respondents being able to hear and then also instruct in relation to the additional evidence-in-chief which may be adduced from the applicant as to some of the conversations, which was in substance to reiterate what had been said in the email sent to my associate earlier that day. Mr Rauf also said that what emerged from the discussion yesterday of the various authorities is that it is a balancing exercise between on the one hand fairness to the parties and on the other administration of justice, and it is a difficult exercise. The two factors that, according to Mr Rauf, put the case in a slightly different category are the individual respondents, and the fact that things are currently looking hopeful for an in-person hearing in September. Mr Rauf said, however, that if the position changes, and it becomes apparent that the matter might not be heard in the foreseeable future, then that might weigh in favour of the administration of justice and the matter proceeding by video-link. Mr Rauf also agreed when it was put to him that it was not just a balance of fairness to parties and administration of justice but also a balance of change in fairness to parties over time. 21 After weighing up the competing considerations, I was satisfied that the balance of considerations favoured vacating the substantive trial next week, keeping part of a day for legal argument as to such issues as evidence objections. I therefore vacated the trial dates and indicated that the trial would take place on either 7-9 September 2020, or 28-30 October 2020, with the viva voce evidence in-Court unless that became impossible, in which case it most likely would have to proceed online, notwithstanding the problems identified in these reasons. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich. Associate: Dated: 29 June 2020