On 16 October 2020, Walton J made a series of orders which provided for this Court to assist the United States District Court in the Central District Court of California ("the US Court") in respect of proceedings commenced in that Court by the Securities and Exchange Commission of the United States of America ("SEC") against, amongst other people, Mr Eric Pulier.
His Honour published reasons for those orders on 27 October 2020: see Application of the Securities and Exchange Commission of the United States of America under the Evidence on Commission Act 1995 (NSW) (No.2) [2020] NSWSC 1500.
The orders of the Court provided for the examination of identified witnesses and further provided that those examinations were to commence on dates to be agreed between the parties, the witnesses and an examiner, or otherwise fixed by the Court. The orders specified that there was to be at least one day between each examination and that the examinations would continue from day to day until complete.
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Current Issue
The parties have been unable to agree on the dates for the examination of the witnesses. The disagreements range between the time needed for preparation, availability of lawyers, conflicting dates of depositions in the USA of other witnesses, the convenience of witnesses and, centrally, a requirement by order of the US Court that the conduct of foreign witness depositions in the proceedings be completed by 30 November 2020.
On the basis of the material put before me in the course of the Duty List today, it is apparent that it is simply not possible to completely accommodate every competing argument and the position of each of the principal parties, the SEC and Mr Pulier, and also the various witnesses and all lawyers. It is necessary for the Court to give weight to different factors in a way which reflects the Court's present view as to their importance. I am conscious that the decision I am about to announce will suit no-one. However, the constraints placed on the Court are such as to lead to the following result.
One other issue which has arisen is that it was contemplated by the orders delivered by Walton J that the examinations should take place before a single examiner.
The examinations ordered in this case are to take place in accordance with New South Wales legislation and the rules for examinations in New South Wales. The role of an examiner in such examinations is a limited one. The examiner oversees the examination and ensures that it is conducted in a civil and respectful manner; ensures that the sitting times and the like are appropriate; and ensures that the provisions of s 34 of the Evidence on Commission Act 1995 are upheld. Where an objection is taken to evidence on a ground relating to admissibility or the like, it is open to, but not compulsory for, an examiner to indicate their view about that objection.
However, whatever be the view of the examiner, it cannot bind the ultimate court before whom the admission of the evidence is sought. It also cannot preclude the giving of an answer by a witness where the question is maintained notwithstanding any objection and the indication of the examiner's view.
I think, in respect of all of these matters, that such is the limited role which an examiner plays, there is no reason to require the parties to retain the same person in respect of each examination. It may be convenient to seek to achieve that result, but I do not regard it as essential. So, to the extent that more than one examiner is required, I regard that as a step which can be taken and which will facilitate the examinations which have been ordered to take place.
Accordingly, I would vary Order 3 of the orders made by Walton J on 16 October 2020 to accommodate more than one examiner presiding over these examinations. It will be a matter for the parties to agree on the identity of the examiner or examiners.
It is now necessary for me to consider the dates to be fixed for the examinations. As I have earlier said, there are competing considerations. The consideration which seems to me to be of the most significance and the most importance in fixing the proposed examination dates is that, as the orders of the US Court presently exist, the examinations need to be concluded by 30 November 2020, otherwise the parties will be acting contrary to the order which that Court has fixed. It is not for this Court, when asked to provide assistance and make orders in support of a court of any foreign jurisdiction, to make orders which are inconsistent with the orders made in that foreign jurisdiction.
Accordingly, I approach the fixing of these dates on the basis that the Court has to find and fix dates which do not contradict any orders of the US Court.
I accept that it is possible and, indeed, there may be a compelling case for that Court to be asked to extend the time before which these examinations are to occur. However, such an application has not been made and may or may not succeed even if made. I cannot be aware of any likelihood of success because I simply do not have all of the information about the way in which this trial is being conducted in the United States which would enable me to come to any conclusion as to whether any application for the extension of time would likely to be given effect to by the US Court.
On the other hand, that time constraint was fixed in circumstances where Mr Pulier applied to the US Court for a longer time for the completion of all pre-trial depositions and the SEC opposed any extension of time at all. The Court granted an extension of time but not for the time sought by Mr Pulier. So far as I can see from the material put before me, the US Court, in granting that extension, was unaware of any of the details of difficulties with the dates for the taking of depositions from witnesses in Australia which have come to light in the last few days.
Accordingly, I will make provision in these orders for the variation of the orders if the orders of the US Court which fix the date of 30 November 2020 are extended. I also indicate to the SEC, although of course noting that I cannot bind it, that it would not be consistent with the duties of parties before this Court, which are set out in the Civil Procedure Act 2005, for it to insist upon the completion of all examinations before 30 November 2020 if an application is made to the US Court and those examinations can be conducted and concluded as proposed by Mr Pulier by 10 December 2020.
Putting it differently, I would not view favourably the approach of the SEC if it were to seek the assistance of this Court on the one hand, but on the other hand to insist upon a constraint upon this Court's exercise of the jurisdiction so as to prejudice significantly the interests of the other parties to the litigation.
I do not regard the lack of preparation time for these examinations as contended for by Mr Pulier as being of such weight as ought to delay the examinations in the circumstances where it is necessary for them to be completed by 30 November. That is because, amongst other things, in the material made available to me, the attorney appearing for Mr Pulier, Mr Holsher, told the US Court in the course of a discussion about depositions that, so far as Mr Pulier was concerned, they could, "Double track the depositions," and that, "If we need to do Australia at the same time we do another country, we are not lawyer constrained". The US Court inquired of Mr Holsher whether he was in a position to "zap it aggressively" and he responded that they were.
Equally I do not regard the unavailability to be present for some of the examinations of one associate in the firm instructed by Mr Pulier as being of any real weight to the determination of the dates. It is obviously in Mr Pulier's interest that such a person be available but, given the competing considerations, I cannot place any significant weight upon the unavailability of one particular associate.
It is apparent that the proposal of Walton J in his orders that the examinations be conducted with one clear day between them is simply not able to be accommodated in the time constraints with which I am confronted.
I am also unable to accommodate the fact that one set of lawyers or another may be required to work on a weekend. It seems to me that avoiding long or unsatisfactory work hours for practitioners is something which is desirable but which is not always able to be accommodated, and in this case cannot be.
Taking all of these matters into account, I make the following orders:
1. Vary Order 3 of the orders of the Court made on 16 October 2020 to accommodate more than one examiner presiding over these examinations.
2. Vacate Order 5 of the orders of the Court made on 16 October 2020.
3. Fix the following dates for the examination of the following witnesses pursuant to the orders otherwise made by Walton J:
1. Order that Mr Tom Richardson be examined on 13 November 2020;
2. Order that Mr Tom Pennington be examined on 16 November2020;
3. Order that Mr Bradley Twynham be examined on 17 November 2020;
4. Order that Ms Miriam Lane be examined on 18 November 2020;
5. Order that Mr Marcus Nicholson be examined on 19 November 2020;
6. Order that Mr Matthew Smith be examined on 20 November 2020;
7. Order that Mr Matthew Keaney be examined on 23 November 2020;
8. Order that Mr Chris Kelada be examined on 24 November 2020; and
9. Order that Mr Darren Murphy be examined on 25 November 2020.
1. I further order that, in the event that on or before any of the dates fixed for these examinations the US District Court makes an order for the extension of time within which the foreign depositions are to be concluded so that the time is extended as and from 30 November 2020 to no earlier than 10 December 2020, that the examination of these witnesses occur on the following dates:
1. Mr Bradley Twynham 17 November 2020;
2. Ms Miriam Lane 18 November 2020;
3. Mr Marcus Nicholson 19 November 2020;
4. Mr Tom Pennington 24 November 2020;
5. Mr Darren Murphy 1 December 2020;
6. Mr Matthew Keaney 3 December 2020;
7. Mr Chris Kelada 19 December 2020;
8. Mr Tom Richardson 8 December 2020;
9. Mr Chris Kelada 9 December 2020; and
10. Mr Matthew Smith 10 December 2020.
1. Grant the parties liberty to apply to the Duty Judge for any further variation of the orders which I have pronounced.
2. Direct that counsel for the Securities and Exchange Commission provide short minutes of order to the other parties by 4pm, 9 November 2020, and to the Court at the same time.
3. Direct if any party contends for any different order, they are to provide that contended order to me by 4pm, 10 November 2020.
I will make the formal orders in accordance with that which I have announced on 10 November 2020 after I receive any conflicting orders.
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Decision last updated: 27 November 2020