FEDERAL COURT OF AUSTRALIA Australian Securities and Investments Commission v Drake [2016] FCA 1024 File number: QUD 596 of 2014 Judge: EDELMAN J Date of judgment: 29 August 2016 Catchwords: EVIDENCE – s 47A of the Federal Court of Australia Act 1976 (Cth) – application for evidence by video link – all relevant factors supporting video link application Legislation: Evidence Act 1995 (Cth) s 63 Federal Court of Australia Act 1976 (Cth) ss 47A, 47A(1) Cases cited: Kirby v Centro Properties Ltd (2012) 288 ALR 601 Date of hearing: Determined on the papers Registry: Queensland Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 11 Counsel for the Applicant: Mr PJ Davis QC, Mr S Forrest and Mr S Seefeld Solicitor for the Applicant: Australian Securities and Investments Commission Counsel for the First Respondent: Mr RJPS Jackson QC and Ms A Nicholas Solicitor for the First Respondent: Bartley Cohen Counsel for the Second and Third Respondents: Mr PA Freeburn QC and Mr SD McCarthy Solicitor for the Second and Third Respondents: James Conomos Lawyers Counsel for the Fourth Respondent: Mr KA Barlow QC and Mr G Coveney Solicitor for the Fourth Respondent: HW Litigation Counsel for the Fifth Respondent: Mr D Clothier QC and Mr D Piggott Solicitor for the Fifth Respondent: Tucker & Cowen ORDERS QUD 596 of 2014 BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Applicant AND: PETER CHARLES DRAKE and others named in the Schedule First Respondent JUDGE: EDELMAN J DATE OF ORDER: 29 AUGUST 2016 THE COURT ORDERS THAT: 1. Pursuant to s 47A of the Federal Court of Australia Act 1976 (Cth) the evidence of the witness Luke John Barnett be given by video link with the following arrangements: (a) the videoconferencing system is to be Polycom VSX 7000 (the System); (b) the System is to transmit to Brisbane real time audio and video of Mr Barnett in Doha, Qatar, which will be displayed on a large video screen in the court room in Brisbane; (c) Mr Barnett in Doha is to be shown a live video feed of the courtroom and the eCourt screen in Brisbane; (d) Mr Barnett is to have available to him a laptop loaded with Estate Master software, and the Estate Master files in the eCourt Book; (e) a desktop view of the witness' laptop is to be transmitted to and displayed in the court room in Brisbane, as directed by the court; (f) screen shots of the laptop screen and a video record of what transpires on the screen are be taken, if directed by the court; and (g) an experienced information technology professional experienced in conducting video conferencing is to be in attendance in Doha throughout the evidence. 2. Liberty to apply. 3. Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT EDELMAN J: 1 This is a trial of proceedings, including for civil penalties, brought by ASIC against five former directors of LM Investment Management Limited (LMIM). Immediately before this trial an issue arose concerning whether orders should be made granting leave for one of ASIC's witnesses to give evidence by video link. The application is brought by ASIC, pursuant to s 47A of the Federal Court Act 1976 (Cth), for the evidence of the witness Mr Barnett to be given by video link. 2 The parties consented to the matter being determined on the papers, with submissions shortly before trial and reasons to be provided at the commencement of trial. Ultimately, no respondent has opposed the orders sought by ASIC on the basis that they are permitted to cross-examine Mr Barnett, and that he have reasonable access to the relevant documents. These brief reasons explain why the orders sought by ASIC should be made. 3 Section 47A(1) of the Federal Court Act creates a discretion to allow evidence to be given by video link or audio link. The subsection does not provide any restrictions on the exercise of the discretion. Different views have been expressed about the manner of exercise of this discretion. Some judges have adopted a view that a good case needs to be shown before the application will be refused. Other judges have taken the view that a good reason needs to be given before leave will be granted, particularly over the objection of a cross-examiner: see the discussion in Kirby v Centro Properties Ltd (2012) 288 ALR 601, 603 [4]-[5] (Gordon J). However, as her Honour observed in that case (at 605 [11]): There is little to be gained by adding another or different gloss on the state of the authorities. In the end, each case will turn on its own facts and circumstances and the exercise of discretion as to what is appropriate in a particular case will involve a balancing exercise as to what will best serve the administration of justice consistently with maintaining justice between the parties. 4 Common factors may include: (i) the reason why a video link is sought; (ii) the attitude of the cross-examining parties; (iii) the likely quality of the video link or, less desirably, the audio link; (iv) any practical difficulties in the course of examination and cross-examination and how those difficulties may be overcome; and (v) the importance of the witnesses' evidence and the likely nature of cross-examination and demeanour issues that might arise. 5 In this case, every factor points to the application being granted. 6 First, ASIC has made significant efforts to procure the attendance of the witness in person. Mr Barnett resides in Doha, Qatar. He swore an affidavit but has refused to return to Australia to give evidence, despite an offer from ASIC to cover his travel costs, accommodation, and to provide him with a daily meal allowance. 7 Secondly, the application is not opposed by any of the respondents. 8 Thirdly and fourthly, technical and practical arrangements have been put in place by ASIC, working with the provider of this e-trial (Law in Order) and a leading provider of videoconferencing facilities to facilitate smooth transmission and easy access by Mr Barnett to all electronic documents (as well as a screen shot so that the Court can see the electronic documents to which Mr Barnett has access). Arrangements have been made for a video link at a conference facility in a hotel in Doha which will present only minor inconvenience by the court sitting outside usual hours. Mr Barnett will have a lawyer present with him who is familiar with Australian trial procedure and also an information technology professional experienced in conducting video conferencing. 9 Finally, the evidence of Mr Barnett is significant for ASIC's case. The allegations to which his evidence relates are not admitted by the respondents (who have relied upon their privilege against exposure to a penalty), so it is unclear the extent to which his evidence is disputed. 10 Although an assessment of demeanour may not be as easily made as if he were to give evidence in person, a high quality video link might not be greatly different. Further, the alternatives are far less attractive than granting this application. The alternatives are for Mr Barnett's affidavit not to be received at all, or for his evidence to be received without cross-examination (under s 63 of the Evidence Act 1995 (Cth)). 11 It is appropriate that the orders sought by ASIC to facilitate this video link evidence be made. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edelman. Associate: Dated: 29 August 2016 SCHEDULE OF PARTIES QUD 596 of 2014 Respondents Second Respondent FRANCENE MAREE MULDER Third Respondent EGHARD VAN DER HOVEN Fourth Respondent SIMON JEREMY TICKNER Fifth Respondent LISA MAREE DARCY