Rossiter v Core Mining Limited [2014] NSWSC 969

Supreme Court New South Wales

Medium Neutral Citation: Rossiter v Core Mining Limited [2014] NSWSC 969 Hearing dates: 17/07/2014 Decision date: 17 July 2014 Jurisdiction: Equity Division - Commercial List Before: McDougall J Decision: Dismiss application to take third defendant's evidence by audiovisual link. Catchwords: PROCEDURE - Application to take evidence by audiovisual link - whether to allow evidence to be taken by audiovisual link where credit of witness a key issue, case not substantially documentary, insufficient explanation for inability to attend, cross examination expected to be extensive and cross examination will require numerous documents Cases Cited: Westraint Resources Pty Limited v BHP Iron Ore Pty Limited [No 5] [2010] WASC 62 Category: Procedural and other rulings Parties: Wayne Rossiter (Plaintiff) Core Mining Limited (First Defendant) Core Mining Pty Limited (Second Defendant) Socrates Vasiliades (Third Defendant) Representation: Counsel: I Neil SC (Plaintiff) T Hickey (Defendants) Solicitors: Petrine Costigan Lawyers (Plaintiff) Walker Hedges & Co (Defendants) File Number(s): 2011/314267

Judgment - Application for audiovisual link evidence

EX TEMPORE (REVISED - 17 JULY 2014) 1HIS HONOUR: The defendants apply to have the evidence of their principal witness, the third defendant Mr Vasiliades, taken by audiovisual link. If that order is to be made, the defendants, as applicants, must satisfy the Court that it is in the interests of justice that the order be made. 2For the reasons that follow, the defendants have not satisfied that burden. 3The plaintiff sues the defendants on four contracts relating to his employment, he says by the first two defendants and the defendants say by the first defendant only. The first of those contracts is said to be oral. The second, third and fourth are said to be partly oral and partly in writing. 4The plaintiff also brings a case, both in estoppel and by reference to alleged misleading or deceptive conduct, based on representations made by or on behalf of the defendants. 5As to the entire oral component of the case - whether based on contract, estoppel or misleading or deceptive conduct - the onversations in question took place between the plaintiff and Mr Vasiliades. 6As to the written part of the case, this is comprised substantially either of documents emanating from or sent to Mr Vasiliades, or very many documents that, the plaintiff says must or should have come to his attention over the relevant span of time. Mr Vasiliades' affidavit, no doubt recognising the force of the documents, seeks to explain them away in various ways. 7It is apparent that there will be a clash between the evidence of the plaintiff and the evidence of Mr Vasiliades. It is apparent that the credibility of each is strictly in issue. 8Mr Hickey of counsel, for the defendants, submitted that the case was substantially documentary. He submitted, further, that credit was not a key element. I do not agree with either proposition. The reasons why I do not will be apparent from what I have just said. 9The application is made on the basis that Mr Vasiliades will be required to travel from London to Sydney to give evidence. He lives in London with his wife and their daughter, who is almost 14 years of age. Mr Vasiliades says that his wife has to travel urgently to Canada because her sister is extremely ill and requires care. Mr Vasiliades says that it is undesirable (to put it mildly) that their daughter should be left alone. 10No reason is given why the daughter cannot travel either to Canada with her mother or to Sydney with her father. I accept that there may be reasons of schooling. However, those do not seem to me to be insuperable: at least in the absence of any explanation. 11Further, and as Mr Neil SC, for the plaintiff, submitted, it has not been shown why competent paid care for the daughter could not be arranged for the short period of time that Mr Vasiliades will be absent from the family home. 12Thus I do not regard the ground on which the application is brought as having any particularly persuasive merit. 13Mr Neil raises other issues, including what he said was the suspicious fact that a prior hearing date was vacated at the last minute on the application of Mr Vasiliades and on what Mr Neil would categorise as, put politely, some degree of reservation on the part of the defendants' solicitor as to whether Mr Vasiliades would come to Australia in any event. I do not regard those matters as being of particular significance. 14Mr Neil submitted that there was no convincing evidence of the availability of suitable audiovisual facilities. The evidence of that is, indeed, weak. Mr Vasiliades says no more than that, on the basis of unparticularised enquiries, he has "ascertained that there are court approved video conference facilities" that could be used. No more detail is given. 15Mr Hickey submitted that demeanour in the strict sense was not a particularly significant factor. He relied on the judgment of Le Miere J in Westraint Resources Pty Limited v BHP Iron Ore Pty Limited [No 5] [2010] WASC 62. In that case His Honour was dealing with an application not markedly dissimilar, either as to its statutory foundation or as to the relevant discretionary factors, from the present. 16Le Miere J pointed out at [11] that demeanour is not now regarded as a key factor in the evaluation of credibility. His Honour said that "logic and coherence of an account and its consistency with other evidence and established facts" may offer a more reliable gauge. I agree. However, credibility, in my view, goes beyond mere considerations of demeanour; although in putting it that way, I am not to be taken as saying that demeanour is utterly irrelevant. 17Where questions of credit are crucial it is, in my experience, extremely important for the Court to be able to observe the witness at close quarters. There are a number of reasons for that. The Court is able to see, for example, whether the witness has regard to material brought with him or her into the witness box. That is not always possible, as experience shows, where evidence is taken by audiovisual link. 18Further, the Court is able to observe whether there is any unspoken interaction between the witness or other people present in the Court room. That is not always something that can be done in the case of evidence taken by audiovisual link. 19Further, and again in my own experience of the process, the electronic interposition that audiovisual link evidence effects between the Court and the witness makes it more difficult for the Court to comprehend whether a witness is truly having difficulty in understanding and evaluating questions, or whether the witness is feigning such difficulty in an attempt to buy time so as to come up with an answer that may be less inimical to the case propounded by the witness than that which a direct and truthful answer might be. 20I am not for a minute to be understood as suggesting that Mr Vasiliades will engage in any of those extremely dishonest and undesirable tactics in the course of giving his evidence. All I am saying is that if there are such problems (or other problems, which it is not necessary to enumerate), the ability of the Court to observe or detect them will be minimised if the evidence is taken by audiovisual link. 21It is expected that the cross examination will take between half a day and a day. Having read the affidavits, I do not think that the estimate is at all unreasonable. It is also suggested that cross examination would require the marshalling and manipulation of between three and four lever arch folders of documents. Again, having considered (although briefly) the evidence, I do not think that this estimate is unreasonable. 22Those are both factors which, in my view, make the process of taking evidence by audiovisual link undesirable. 23There are other matters to be taken into account on the submissions put by Mr Neil. However, the matters to which I have referred are dispositive. Those matters - in particular, the nature of the case and the issues, and the head on clash of evidence between the two key witnesses - make it plain, in my view, that taking evidence by audiovisual link will pose a significant impediment to the Court's resolution of the factual issues in dispute. 24For those reasons, as I have said, I am not satisfied that it is in the interests of justice that the orders sought should be made. 25Accordingly, I dismiss with costs the notice of motion filed in court on 16 July 2014.