New South Wales Supreme Court CITATION : Markisic & Anor v United States of America & Anor [2006] NSWSC 839 HEARING DATE(S) : 3 August 2006 JUDGMENT DATE : 3 August 2006 JURISDICTION : Civil JUDGMENT OF : McClellan CJatCL DECISION : 1. Any cross examination of the witness Heller if it is to take place is to occur by telephone. CATCHWORDS : ORDERS SOUGHT - AVAILABILITY OF WITNESS FOR CROSS-EXAMINATION - proof of location of an internet server - person resident of United State of America - whether should be required to come to Australia - whether order for audio or audio visual link appropriate interests of the administration of justice - nature and complexity of issues Foreign States Immunity Act 1985 LEGISLATION CITED : Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Evidence (Audio and Audio Visual Links) Act 1998 Dragan Markisic (1P) PARTIES : Oliver Markisic (2P) United States of America (1D) Commonwealth of Australia (2D) FILE NUMBER(S) : SC 20286/04 Dragan Markisic (in person) COUNSEL : Oliver Markisic (in person) J Kirk (1D) SOLICITORS : Plaintiffs in person Gadens Lawyers (1D) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION McCLELLAN CJ at CL THURSDAY 3 AUGUST 2006 20286/04 MARKISIC & ANOR v UNITED STATES OF AMERICA & ANOR JUDGMENT 1 HIS HONOUR: This matter originally came before me earlier in the week when the first defendant sought orders in relation to the prospective cross examination of a proposed witness, Miss Ann McGahuey. In the course of argument counsel for the first defendant indicated that he wished to reconsider whether or not Ms McGahuey is the appropriate witness or whether some other person might be able to provide the evidence. The nature of the evidence is proof of the location of the server for the website of the United States Department of State Bureau of Consular Affairs. 2 The issue in the main proceedings is whether by reason of the fact that the communication complained of, which could be accessed on the website, the first defendant, the United States of America, was immune from liability in Australia. It is proposed to be argued that the immunity of s 9 of the Foreign States Immunity Act 1985 extends to the United States of America and that the exception provided by s 13 of the Act does not operate so as to make it amenable to suit within Australia. A question which s 13 raises is whether or not the relevant act or omission was done or permitted to be done in Australia. As I understand it the United States will argue that because the relevant communication was put on to the website in America, that is the point at which the relevant act for which liability is suggested was done. This raises the relevance to these proceedings of the decision of the High Court in Dow Jones & Co v Gutnick, (2002) 210 CLR 575. These matters need not be resolved today. 3 After reflection, the first defendant has determined that it will not seek to read the affidavit of Miss McGahuey but rather will seek to read the affidavit of Paul Heller. Paul Heller is the president of Heller Information Services. In the affidavit which is proposed to be read he swears that he is aware that the United States Department of State Bureau of Consular Affairs website, is hosted at http://travel.state.gov, through which the relevant report complained of by the plaintiff is available. Mr Heller says that the site resides on one of the five alternate servers configured as travel.state.gov. From time to time the website is moved from one web server to another but at all relevant times the web servers have been located within the United States and have been located there during the entire period that the report of the delegation from Australia has been posted on that site. 4 The material to which I have just referred is the whole of the relevant material in Mr Heller's affidavit. To my mind it comes as no surprise that a website designed to serve the United States Department of State Bureau of Consular Affairs should be located within the United States. Not only would it be surprising if it was located outside the United States, it would be even more surprising if it was located in Australia, which is the only issue relevant to the proceedings. 5 The argument of the first defendant will be that because the site was not located in Australia s 13 does not operate to exclude immunity. This Court is required by s 60 of the Civil Procedure Act 2005 to ensure that, in any proceeding, the practice and the procedures of the court are implemented with the object of resolving "the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute". The issue before me today is whether, having regard to the nature of the evidence and the issues involved in the main case, if Mr Heller's evidence is tendered he should be required, as the plaintiffs request, to come to Australia for cross examination. 6 The motion of the first defendant, amended as it is today, is that either Mr Heller not be required to attend for cross examination or if he is, that this occur by telephone. An alternative of course is for it to take place by audio visual link. Pt 31 r 3 of the Uniform Civil Procedure Rules 2005 provides power in this court to order that evidence be received by telephone video link or other form of communication. That rule is the complement to Pt 35 r 2(3) which provides that a person in respect of whom notice has been given requiring their cross examination must attend or otherwise the affidavit may not be used "unless the deponent is dead or unless the court otherwise orders". The first defendant asks the court to exercise that power in an appropriate manner. 7 The power in this court to provide for evidence to be received by audio or video link is especially dealt with in s 5B of the Evidence (Audio and Audio Visual Links) Act 1998. Section 5B(1) provides for a power in a court to make an appropriate order. Section 5B(2) provides that the court must not make such an order or direction in certain circumstances. 8 The question accordingly is whether or not it would be more convenient for the evidence to be given in a courtroom in Australia. Section 5B(3) provides that in a proceeding in which a party opposes the making of a direction for the giving of evidence by audio link or audio visual link, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so. The subsection appears on its face to only apply in circumstances where it is proposed to give evidence by audio link or audio visual link from any place within New South Wales other than the courtroom. However, I am prepared to approach the resolution of this problem upon the assumption that I should consider whether or not it is in the interests of the administration of justice for the court to make an order which, in whatever form, does not require Mr Heller to attend for cross examination in the courtroom. It seems to me that decision must always be made irrespective of the statute, by reference to the interests of justice in this particular case. 9 As I have indicated, the evidence of Mr Heller is unexceptional. It is not apparent to me that any consideration in relation to his credit or issues of any complexity could possibly arise. It may be that he will be asked to explain some of the technical arrangements which are or have been made in relation to the website. However, this can be done without his being required to come to Australia. It has been suggested that it may be necessary for him to look at some documents. However, no particular document has been identified and I cannot presently conclude that he would be asked to look at documents which might be relevant to an issue in respect of which he gives evidence. However, if it is necessary for him to look at a document arrangements can be made for a bundle of documents to be forwarded to him in America before he is cross examined. 10 It is said that unless he attends in the courtroom it will not be possible by consideration of his demeanour to determine matters of credit. As I have indicated, I cannot see that any issue of credit will arise and I do not see any advantage in him being required to come to Australia. Accordingly I am satisfied that I should not require or make an order that he be required to attend in Australia. However, I do think that he should be cross examined. Although I cannot presently envisage what issues that cross examination may go to, it seems to me in the interests of justice an opportunity should be provided to the plaintiffs to ask him questions. 11 The only question is whether this should be done by audio visual link or whether an audio link would be satisfactory. There are costs attendant in providing an audio visual link. If the cross examination and the necessary arrangements were to occupy one hour, those costs would be of the order of $1,415. However, those costs would escalate by $1,280 per hour for every hour that the cross examination was to continue, or part of any hour. 12 Having regard to the history of this matter and the time which is commonly taken in resolving the most straight forward of issues, I could not confidently predict how long the cross examination may take. 13 Accordingly it is necessary for me to weigh the prospective costs and convenience of the audio visual link with whether or not an audio link would be satisfactory. I would repeat myself if I was to again indicate that in my view the issue resolved in the evidence of Mr Heller is a confined one devoid of complexity although perhaps in need of some greater technical explanation by him. 14 I am satisfied that questions going to those matters can be adequately framed and answered by an audio link without any necessity for a visual link to be made. It seems to me that having regard to the requirements that proceedings be confined to a cost proportionate to the nature and complexity of the issues to be resolved, this is an issue which can be satisfactorily addressed by audio link without a video connection. 15 In those circumstances I make order 2 in the amended notice of motion, that order being that any cross examination of Mr Heller if it is to take place is to occur by telephone. ********** 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.