18 August 2017: Being a busy corporate executive doesn’t mean you can give evidence by VIDEO-LINK from America

Jones v Treasury Wine Estates Limited (No 3) [2017] FCA 961

 Eight weeks before the 28 August 2017 trial of a shareholder class action against Treasury Wine Estates (TWE), the global wine company asked the Court to let witness Ms Le Drew give evidence via video link from America, where she lives. TWE argued that Ms Le Drew was really busy with her work in a new job plus her son’s first visit to her in about 9 months was to take place during the Trial.

The case is about the alleged failure of TWE to disclose that its US distributors held excess stock which was becoming worthless. The witness Ms Le Drew had been TWE’s Managing Director of America’s Regional Business, and had direct contact with US distributors.

The application for video-link testimony was under 47A(1) of the Federal Court of Australia Act 1976.

The Court considered such an application necessitated a balance of convenience and efficiency for parties (which the court should facilitate) versus maintaining justice, based in part on what Gordon J said in 2012 in the Kirby v Centro Class Action. As is so often the case, these applications are to be determined on their “own facts and circumstances”[1].

And by the time the application reached the Judge the plaintiff had offered that Ms Le Drew’s evidence in Australia could be given at a time which didn’t clash with when her son was visiting.

Foster J in the NSW registry of the Federal Curt of Australia refused to allow video-link on the grounds that:

(a)   Ms Le Drew’s evidence was considered important and “at the heart of the case”.
(b)   A challenge to her credit was on the cards.
(c)   Her evidence was expected to last several days, and documents would need to be presented to her, which would be awkward via video-link and would likely involve the unattractive need of someone from the plaintiff’s camp to be physically present in California to coordinate the document production.
(d)   Ms Le Drew was willing to give evidence, even though her overseas status meant she could be forced to attend (and there was no evidence that she wouldn’t attend if video-link wasn’t permitted).
(e)   The plaintiff opposed the video-link request, including on the grounds that it would impair cross-examination.
(f)    The defendant had delayed in dealing with the video-link request, having first raised the issue in November 2016 at which time the plaintiff’s opposition was clearly stated. The judge stated that video-link applications should be promptly made and not delayed for discussions between parties, but treated the delay in this case not as decisive on its own but one factor which added to the others mentioned above.

The outcome is summed up by the Court’s comments that:

A.    “work-related matters addressed by Mr Mitchell at par 13 of his affidavit are not sufficiently weighty to lead to the requisite discretion being decided in favour of TWE”; and
B.    “there is no doubt that Ms LeDrew’s evidence will proceed more swiftly and efficiently if she is present in the courtroom in Australia when giving evidence

Had I been on the plaintiff team, I may have supported the video link request if it meant I had to go to the Napa Valley to oversee the witness’s evidence. However I would also have given full advice to my client about the negative implications of video-link evidence, and so I suppose that my instructions would include I could drive the Yarra Valley as much as I wanted, in my own time and on my own dime.


See all class action judgment updates