Supreme Court New South Wales Medium Neutral Citation: Filby v TEG Live Pty Ltd [2022] NSWSC 1280 Hearing dates: 12 September 2022 Date of orders: 12 September 2022 Decision date: 12 September 2022 Jurisdiction: Equity Before: Slattery J Decision: Witness permitted to give evidence by audio visual link (AVL). Parties cautioned to ensure that applications for the giving of evidence by AVL must be made before witnesses leave the jurisdiction except in the most urgent and compelling personal circumstances. No costs orders made. Catchwords: CIVIL PROCEDURE – application for giving evidence by audio visual link – application made on the first day of the hearing – principal witness for the defendant lives in Australia and was scheduled to give evidence in Australia six months before the hearing – the defendant organises for the witness to conduct an overseas trip for business purposes, either knowing that it will conflict with his requirement to give evidence, or ignoring the fact that such a requirement exists – the defendant then applies for an AVL hearing when the witness is overseas, attempting to present the Court with a fait accompli before it exercises its discretion – whether the AVL application should be granted in the circumstances – consideration of competing factors. Legislation Cited: Evidence (Audio and Audio Visual Links) Act 1998, s 5B Uniform Civil Procedure Rules 2005, r 31.3 Cases Cited: Antov v Bokan (No 2) [2019] NSWCA 250 Category: Procedural rulings Parties: Plaintiff: Mark Filby Defendant: TEG Live Pty Ltd Representation: Counsel: Plaintiff: C. Hart Defendant: C. Gleeson Solicitors: Plaintiff: Sean Patrick Keleher, Keleher Lawyers Defendant: Anna Ross, Corrs Chambers Westgarth File Number(s): 2019/61650 Publication restriction: No Judgment 1. The plaintiff, Mr Mark Filby, alleges that the defendant, TEG Live Pty Ltd, under its previous corporate name Nine Live Pty Ltd, misused confidential information that he says he imparted to Mr Geoff Jones, the Group CEO of the defendant's holding company TEG Pty Ltd ("TEG"). This is said to have occured during a confidential business meeting on 26 February 2013. The defendant disputes: that the meeting was confidential, that it received any confidential information of value, and that if it did receive confidential information that it misused it. 2. Mr Geoff Jones is now the CEO of an international corporate group of which the defendant is a subsidiary. The defendant has long proposed to call Mr Jones, as one of its principal witnesses in these proceedings to dispute Mr Filby's version of this business meeting. 3. Today is the first hearing day of a six-day hearing. The defendant now applies for the first time by motion dated 5 September 2022 for orders pursuant to Uniform Civil Procedure Rules 2005, r 31.3, and the Evidence (Audio and Audio Visual Links) Act 1998, s 5B ("the AVL Act"), that Mr Jones give his evidence by audio visual link (AVL) from London in the United Kingdom where he is presently located. 4. The circumstances that have led to this application present a very unsatisfactory picture. Mr Jones recently left Australia and travelled to the UK on a business trip that would make him unavailable to be cross-examined in person in these proceedings. 5. On 15 February 2022, this matter was listed for a hearing commencing today and with an estimate of six days. The trial plan issued in February assumed Mr Jones would probably be the principal witness for the defendant. Given the issues in the proceedings the defendant always expected Mr Jones to be required for cross-examination. 6. In late July this year, TEG restructured and rebranded its United Kingdom and European business entities. The restructure resulted in the formation of a new business division known as "TEG Europe" which brought together TEG's UK based live entertainment ticketing, venue, digital and data operations into a single integrated operation based out of Bristol and London in the United Kingdom. As Group CEO, Mr Jones decided to lead the launch of TEG Europe. Mr Jones recruited a Managing Director for TEG Europe, Mr Toby Leighton Pope, who reports directly to Mr Jones and is part of TEG's global leadership team. 7. To facilitate the launch of these European operations, on 10 August 2022 Mr Jones travelled to the United Kingdom to attend and to assist at the launch of the restructured TEG Europe. He is not scheduled to arrive back in Australia until 10 October 2022, well after the conclusion of these proceedings. The Court has been told, and accepts, that Mr Jones's current program for this week shows that leading up to today and during this week he is scheduled to participate in many meetings. The Court has further been told that these meetings will be held with "internal and external stakeholders to discuss significant business opportunities, entertainment, and prospective acquisitions". 8. The account of Mr Jones's travel plans given to the Court includes that he will be meeting with TEG Europe's new leadership team and that he has 25 meetings scheduled in his diary during the period from 5 September to 19 September 2022, some of which have already taken place. 9. Ms Anna Ross, the solicitor for the defendant, says on affidavit that if Mr Jones were required to cancel or restructure these meetings, there is a risk of harming business opportunities for the new TEG Europe Division. 10. Formal notice of cross-examination was given to Mr Jones in late August this year only a few weeks before the hearing. But despite that the defendant properly concedes, as is evident from the trial schedule, that it long anticipated that he would be called to give evidence. 11. The defendant submits that AVL Act, s 5B should be applied to permit Mr Jones to give his evidence by AVL from London, as it is now not possible for him to reschedule his travel plans without great inconvenience to him and to TEG. The plaintiff says that Mr Jones should be required to return home to Australia this week and give evidence in person in the courtroom as he left Australia without first making the appropriate application under the AVL Act, s 5B. 12. The evidence Mr Jones is anticipated to give does not cover a broad compass. Mr Hart, counsel for the plaintiff, says that he may cross-examine Mr Jones for an hour or possibly two hours. The Court suspects, given the issues, that it will take longer than that and probably about three hours. 13. The authorities on such applications are clear. The matter is in the Court's discretion. UCPR, r 31.3 and AVL Act, s 5B do not import different discretions: Antov v Bokan (No 2) [2019] NSWCA 250 ("Antov"). The reasoning in Antov provides guidance on the operation of AVL Act, s 5B and the Court now applies the principles there stated. A primary consideration is that the Court should not make an order for evidence by AVL if it is satisfied that it would be unfair to a party. Antov's case conveniently identifies several common considerations in the making of AVL orders, some of which are relevant here. 14. During submissions the Court suggested a potential solution that might be convenient to both parties. This was that Mr Jones's evidence could be deferred and given after the main hearing, when all the other witnesses had given evidence. This would have allowed him to return to Australia to give his evidence in person after completing his business in Europe. Although inconvenient to the plaintiff, as well as the Court which would need to find time to accommodate him in a Court's schedule after the existing allotted hearing dates, the Court was prepared to look at this as a possible solution. Although, the Court indicated to the defendant that accommodating the defendant's convenience may well have to be ordered at the defendant's cost. 15. But this solution was not acceptable to the plaintiff. Not every party in litigation is well and fully resourced in a manner which will allow complete calendar flexibility of the kind the Court was proposing. Mr Hart submitted that he had been engaged on a specific basis to be available for the days allotted for this hearing and it would be very inconvenient to the plaintiff both financially and otherwise for him to be briefed to return at a future date outside the six days presently allotted for the hearing. 16. Mr Hart's submission was persuasive. Costs orders are not always adequate to compensate for the inconvenience of adjournments. The engagement of solicitors and counsel by a party with a limited budget for litigation may place that party at risk of losing continuous and cost-effective legal representation for the adjourned date. 17. The Court will not pursue the compromise solution of an adjournment any longer. The Court is now presented with a stark choice between requiring Mr Jones to return to Australia or authorising an AVL hearing for his testimony. 18. The strongest consideration against granting the AVL Act, s 5B application here is that the situation in which Mr Jones finds himself is entirely the creation of the defendant which allowed him to travel overseas, resulting in the diary conflict that requires the present application to be made. 19. The Court does not wish to see an application such as this one repeated. What has happened in this case is that a witness who lives in Australia, who is scheduled to give evidence in Australia, and who knows that he is to be cross- examined, organises an overseas trip for business purposes, either knowing that it will conflict with his requirement to give evidence, or ignoring the fact that such a requirement exists. He then applies for an AVL hearing when he is overseas, attempting to present the Court with a fait accompli before it exercises its AVL Act, s 5B discretion. 20. This history exhibits on the part of the defendant an unjustified sense of procedural entitlement to orders before even applying for them. The proper course is for a party to apply for a witness to give evidence by AVL before the witness makes final plans to go overseas and well before the hearing. This gives the Court greater flexibility to deal with the application and to minimise potential unfairness to each side. That is what should have happened here. 21. In our open Court system, where each judge individually decides these applications, the preferences of individual judges in assessing credibility will have real impact in the exercise of the discretion. No party should assume in advance, as seems to have occurred here, that the AVL Act, s 5B discretion will be exercised in that party's favour. As I have indicated to the parties during argument, I have a strong preference for seeing a witness give evidence in person in the courtroom so that the reactions of the witness and the witness's interactions with the cross examiner and the Court can be fully observed as the witness gives evidence. The Covid-19 pandemic international border closure is over, so it is not inevitable these orders will be granted, as it was throughout most of 2020 and 2021. 22. But despite this strong consideration weighing against the defendant's application, the Court must weigh all the other relevant factors in a practical way, balancing the interests of the parties and keen to ensure that neither party suffers unfairness. Some of these factors are against and some favour granting the application. 23. Mr Jones is a very important witness in this case. He is the principal person who opposes Mr Filby's version of the events of the meeting. He is not the only important witness. Ms Gleeson seeks to diminish his importance as a witness by saying that, on his own account, he does not remember this conversation or anything of it of the character advanced by the plaintiff, so his cross examination is likely to be limited. But the answer to that is that cross-examination can provide surprises. 24. Mr Jones's credit is in issue, which is another consideration weighing against acceding to the defendant's application. AVL Act, s 5B allows the Court to dispense in appropriate circumstances with the primary mode of giving evidence in person, a mode which allows the Court to use the full range of human observation and interaction in the courtroom to assess the credibility of the witness. Where credibility is in issue, the giving of evidence in person has real advantages. 25. Document management issues favour allowing Mr Jones to give evidence remotely. Large numbers of documents will not be involved in his cross-examination in this case. 26. The time likely to be involved in Mr Jones's cross-examination also favours allowing him to give evidence remotely. It is not anticipated that his evidence will last more than three hours. 27. The Court has been assured that a good connection for the AVL technology – in this case Microsoft Teams – will be available from Mr Jones's hotel in Bristol. This also favours granting the application. 28. The Court will grant the application but only on the most marginal basis. The primary reason for doing so is that the likely short duration of the cross-examination and the few documents involved will limit the disadvantages of a remote cross-examination in assessing the credit of the witness. The timing of the application weighs strongly against granting the application. 29. But practical considerations arising from Mr Jones's present circumstances cannot be ignored. The exercise of the discretion includes comparing Mr Jones's present schedule, with what the Court regards as a reliable prediction of a short cross-examination. The alternative of requiring him to return to Australia now will take a minimum of about four days out of his business schedule for the sake of three hours of evidence. 30. An indulgence is now being granted to the defendant, allowing an application that should have been made months ago. The Court will therefore not allow any costs to the defendant, even though it has been successful on the motion. Moreover, as an international executive who travels regularly, Mr Jones will suffer no disadvantage being required to give evidence during the Court's ordinary Court hours, that is between 10am and 4pm Australian Eastern Standard Time. 31. Although the Court has granted this application, these reasons caution against any litigant taking the course taken by the defendant in this case. Except in the most urgent and compelling personal circumstances parties ordinarily resident in Australia should make application to give evidence by AVL before leaving the jurisdiction. This applies whether the factors prompting the application are of a personal or business nature. The caution is given so that the Courts can administer justice with the best available evidence. This case should not be taken as authority that applications with these features should be granted in the future. Conclusion and Orders 1. Accordingly, the Court makes the following orders and directions: 1. Order that Mr Geoff Jones, a witness for the defendant, may give evidence by audio visual link during ordinary Court hours; 2. The Court makes no order as to costs to the intent that each party will bear his or its own costs of this application. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 September 2022