Industrial Relations Commission of New South Wales in Court Session CITATION : David Wong v State Street Global Advisors Australia Ltd & Anor [2004] NSWIRComm 122 FIRST RESPONDENT: State Street Global Advisors Australia Limited (ACN 003 914 225) PARTIES : SECOND RESPONDENT: State Street Corporation Inc FILE NUMBER: IRC 4333 of 2001 CORAM: Schmidt J CATCHWORDS : Practice and Procedure - evidence - taking of evidence - video conferencing facility - overseas witnesses - whether witness is compellable - evidence by video link satisfactory - orders made CASES CITED : Studniberg v J P Morgan Australia Limited (1998) 84 IR 86 HEARING DATES: 05/07/2004 EXTEMPORE JUDGMENT DATE : 05/07/2004 APPLICANT: Mr SJ Stanton of counsel SOLICITORS: Aitken McLachlan & Thorpe LEGAL REPRESENTATIVES: RESPONDENTS: Mr AR Moses of counsel SOLICITORS: Baker & McKenzie JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 7 May 2004 Matter Number IRC 4333 of 2001 DAVID WONG v STATE STREET GLOBAL ADVISORS AUSTRALIA LTD AND ANOTHER Application under section 106 of the Industrial Relations Act 1996 JUDGMENT Extempore 1 The question at issue here between the parties is whether or not evidence of two witnesses who reside in the United States be taken by video link. The applicant opposes the orders sought, given the importance of the evidence to the applicant's case, particularly in relation to questions of credit, on matters in issue between the parties. Questions of demeanour are also said to be likely to arise from the examination. 2 The proper approach to the determination of such a question has been discussed in a number of authorities including my own judgment in Studniberg v J P Morgan Australia Limited (1998) 84 IR 86. Various views have been expressed about video conferencing by members of the Federal Court and the State Supreme Court. 3 The authorities make clear that there must be good reason for a departure from the ordinary course, namely that evidence will be given in open Court in Australia. What justice requires in a particular case, however, depends on numerous factors. They relevantly include in this case the cost involved, the inconvenience for the witness concerned and whether or not the witness can be compelled to attend. 4 In this case, I am satisfied that the orders should be made in the case of the respondent's witness Mr Serhant. He resides in the United States. He is plainly not compellable. He has retired from the respondent's employment. He has personal travel plans and he does not wish to travel to Australia to give evidence. 5 I am satisfied that justice requires that the respondent not be deprived of the opportunity to rely on his evidence. I am well satisfied, having had several experiences of taking evidence by audiovisual link since the judgment in Studniberg in 1998, that the taking of evidence by that means in circumstances such as this, is quite satisfactory, even when demeanour must be assessed. 6 In my view, the orders proposed in this respect are satisfactory. I do not propose to deal with the position of Mr Fleites at this stage. His affidavit is not on. It is anticipated to be short and to arise out of a further affidavit in reply which the applicant has filed. 7 Once filed it may, of course, be that there is no objection at all to that witness' evidence being given by video link. If there is then I will consider the matter further and will deal with it on submissions made in writing. The parties have liberty to approach in that respect. ------------------------ 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.