The decision in Australian Competition and Consumer Commission v Pirovic Enterprises Pty Ltd  FCA 544 in which the Federal Court refused an application to have its expert evidence be given by way of video link.
The applicant, the Australian Competition and Consumer Commission (ACCC), commenced proceedings against Pirovic Enterprises Pty Ltd (Pirovic) alleging that Pirovic had engaged in misleading and deceptive conduct contrary to section 18 of the Australian Consumer Law. The alleged conduct relates to Pirovic marketing its eggs as ‘free range’ and is one of a number of cases that have been commenced by the ACCC dealing with credence claims and in particular the concept of ‘free range’.
In March this year the proceeding was set down for trial in September for a period of two weeks. In May the ACCC filed an application seeking, amongst other things, that the evidence of its expert be given by way of video link. Section 47ACD of the Federal Court Act of Australia 1976 (Cth) provides that:
“The Court or a Judge may, for the purposes of any proceeding, direct or allow testimony to be given by video link, audio link or other appropriate means.”
The nature of the discretionary power conferred by this section was at the heart of the parties’ dispute.
The ACCC proposed to call an expert based in the United Kingdom with expertise ‘on the behaviour of laying hens in free range egg production systems.’ The difficulty for the ACCC was that the expert was unwilling to travel to Australia to give evidence in person because:
- She had teaching and other academic commitments throughout the year and if required to travel to Australia she would need to obtain a period of approximately two weeks free of all other commitments.
- She had booked an annual holiday in September (overlapping the second week of trial) and would not be able to travel in the period immediately prior to her leave.
- She found long distance travel physically discomforting and would not be able to travel to Australia from the United Kingdom and appear in court the next day or the day after.
His Honour, Justice Flick, noted that the exercise of the discretion conferred by section 47A(i) must be guided by the facts and circumstances of each case in which leave is sought to lead evidence in by way of video link. Some relevant factors governing the exercise of the discretion and noted by his Honour included:
- The extent to which the witness seeks to give evidence of facts relevant to the dispute as opposed to opinions founded upon agreed facts or assumptions.
- Whether the parties are in agreement as to the utility of allowing evidence to be given by video link.
- The extent to which any cross- examination may be inhibited by the absence of the witness being present.
- The reason proffered by the witness for not being able to be present to give evidence.
The above matters, by no means exhaustive, had to be looked at in the context of what is considered by the Court to be in the best interests in the administration of justice, including the need to ensure justice is done between the parties.
Having regard to these matters, the ACCC was refused permission to call expert evidence by way of video link. Justice Flick arrived at this decision based on a number of reasons, including:
- Any inability to rely on the proposed expert’s evidence does not deny the ACCC from calling another suitably qualified expert.
- It was far from certain whether the expert would be giving evidence of contested facts or opinion evidence founded upon assumed facts.
- A written report of the expert was not yet available and, accordingly, Pirovic was unable to make an informed judgment on the need to cross-examine, and if so, the nature and extent of that cross-examination.
- The reasons advanced by the expert for being unable to attend in person were not persuasive.
The decision in ACCC v Pirovic provides useful guidance to parties considering the use of video link technology to adduce evidence at trial. While each case will turn on its own unique facts and circumstances, parties need to be mindful that the Court will ultimately be guided by what is in the best interests of the administration of justice. Special care will need to be taken when seeking leave to have an expert give evidence by video link given that the expert witness is in the special position of providing opinion evidence with a view to assisting the Court on matters of a specialist nature.