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

Dramatis Personae

1. A brief and preliminary description of the witnesses follows: 1. Mr Twynham worked for ServiceMesh Inc ("ServiceMesh") as Vice President of Emerging Market Programs. Mr Twynham worked directly with Mr Waldron. 2. Mr Nicholson worked for the Commonwealth Bank of Australia ("CBA") as Executive Manager of Software Asset Management. Mr Nicholson communicated with Mr Waldron and others as to matters relevant to the US proceedings. 3. Mr Waldron worked for CBA as the General Manager of Infrastructure Engineering. 4. Mr Kelada worked for CBA in IT Engineering Technology Platforms. 5. Mr Richardson worked for CBA as a General Manager in Partner Management of IT Delivery Services. 6. Mr Pennington worked for the CBA as a General Manager in Partner Management of IT Delivery Services. 7. Ms Lane worked for CBA in the Technology Risk, IT Delivery Services business unit. 8. Mr Smith worked for CBA as the Head of Technology Risk in the IT Delivery Services business unit. 9. Mr Keaney worked for CBA in Group Investigations and Advisory Services and conducted an internal investigation for the CBA as to matters relevant to the US proceedings. 10. Mr Murphy worked for CBA in Group Investigations and Advisory Services and conducted an internal investigation for the CBA as to matters relevant to the US proceedings.
2. Mr Pulier was the Founder and former Chief Executive Officer of ServiceMesh and defendant in the US proceeding.
3. Mr Keith Hunter worked for CBA as the Executive General Manager in charge of Operations, IT Security, Application Development and IT Engineering at CBA. Mr Hunter's employment was terminated in 2014. Mr Hunter was jailed in 2016.

Evidence

1. In support of the summons, the SEC relied on the following affidavits and exhibits filed and served in these proceedings: 1. affidavits of Douglas Miller sworn 18 August 2020, together with Exhibit DMM-1 ("first Miller affidavit"); 24 September 2020 ("second Miller affidavit"); and 1 October 2020; and 2. affidavits of Jason Alexander Willi Munstermann sworn 19 August 2020, together with Exhibit JM-1; 23 August 2020, together with Exhibit JM-2; 26 August 2020; 7 September 2020; and 25 September 2020.
2. In support of the motion, Mr Pulier relied upon the following: 1. affidavits affirmed by Ms Susanna Ford on 28 August 2020; 4 September 2020; 15 September 2020; and 2 October 2020; and 2. affidavit sworn by Mr James Rapore filed on 15 September 2020.
3. Mr Miller is a Senior Trial Attorney of the SEC and lead counsel in the US proceedings. Prior to his employment with the SEC, he was engaged for 12 years as an Assistant US Attorney at the US Attorney's Office ("USAO") for the Central District of California.
4. Mr Munstermann is a partner of the law firm McCullough Robertson and the Australian legal representative for the SEC.
5. Ms Ford is a partner of the law firm Arnold Block Leibler and Australian legal representative of Mr Pulier. Mr Rapore is a partner of the law firm Kirkland & Ellis LLP and counsel for Mr Pulier in the US proceedings.
6. Mr Waldron adduced evidence by affidavits from Mr Phillip Gibson, a solicitor with Nyman Gibson Miralis. Those affidavits were sworn on 1 and 25 September 2020, respectively.
7. The deponents of the various affidavits were not required for cross-examination.

FACTUAL BACKGROUND

1. In March 2015, Mr Waldron was charged with a number of offences in New South Wales. Mr Gibson deposed that the charges "are the same as contained in the … SEC application in the Pulier Letter of Request". Committal proceedings with respect to those charges occurred between 12 and 23 February 2018.
2. On 27 September 2017, the USAO filed a criminal indictment against Mr Pulier and Mr Waldron in the US Court. The indictment contained 15 counts and criminal forfeiture. Relevantly, counts 1 to 6 are set out below.
3. Count 1 alleged a conspiracy between Mr Pulier and Mr Waldron and Mr Hunter and others "known or unknown" with respect to securities fraud contrary to 18 USC s 1348 and wire fraud in violation of 18 USC s 1343.
4. Count 2 was expressed as follows: 57. Beginning in or about September 2013, and continuing through a date unknown to the Grand Jury, but no earlier than September 2015, in Los Angeles County, within the Central District of California, and elsewhere, defendants PULIER and WALDRON, together with others known and unknown to the Grand Jury, aiding and abetting each other, knowingly and with intent to defraud, devised, participated in, and executed a scheme to defraud a person in connection with the securities of CSC, and to obtain money and property in connection with purchases and sales of the securities of CSC by means of material false and fraudulent pretenses, representations, and promises, and the concealment of material facts, as described in paragraphs 13 through 55 of this indictment.
5. Counts 3 to 6 were as follows: A. THE SCHEME TO DEFRAUD 59. Beginning in or about September 2013, and continuing through a date unknown to the Grand Jury, but no earlier than September 2015, in Los Angeles County, within the Central District of California, and elsewhere, defendants PULIER and WALDRON, together with others known and unknown to the Grand Jury, aiding and abetting each other, knowingly and with intent to defraud, devised, participated in, and executed a scheme to defraud CSC and its shareholders as to material matters, and to obtain money and property from CSC and its shareholders by means of material false and fraudulent pretenses, representations, and promises, and the concealment of material facts, as described in paragraphs 13 through 55 of this Indictment. B. USE OF WIRES 60. On or about the dates set forth below, within the Central District of California and elsewhere, defendants PULIER and WALDRON and their co-schemers, aiding and abetting each other, for the purpose of executing and attempting to execute the above-described scheme to defraud, transmitted and cause the transmission of the following items by means of wire communication in interstate and foreign commerce: [Table setting out the details of four wire transmissions omitted.]
6. On 27 September 2017, the SEC filed the complaint against Mr Pulier in the US Court commencing the US proceedings.
7. On 6 June 2018, the USAO filed a "stipulation" to allow the United States of America to intervene in the US proceeding for the purpose of staying civil discovery during pendency of criminal proceedings filed separately by the USAO against Mr Pulier. After referring to the indictment, the USAO stated in para 3 of the stipulation as follows: On the same date the Indictment was returned, September 27, 2017, the SEC filed a complaint against defendant in the above-captioned case (the "SEC case") alleging violations of the securities laws. (Docket No. 1.) The various claims for relief in the complaint were grounded in the same alleged fraudulent conduct by defendant that is the subject of the Indictment - the alleged bribes to CBA officials and the alleged steps taken by defendant to cover up the bribes. The complaint sought relief in the form of an injunction, an asset freeze, disgorgement of ill-gotten gains from defendant's allegedly illegal conduct, and civil penalties.
8. On 8 June 2018, the US Court made an order permitting the intervention of the United States of America, by the USAO, in the US proceeding and staying civil discovery during the pendency of the USAO's criminal proceedings.
9. On 20 December 2018, the USAO's criminal proceedings were dismissed with prejudice (such that they cannot be reinstated).
10. On 11 March 2019, the SEC and Mr Pulier's representatives gave notice of the dismissal of the USAO's criminal proceedings in the US proceeding and sought, among other matters, that the US Court convene a status conference to return the US proceedings to the active docket and set pre-trial and trial dates for the US proceedings.
11. On 8 July 2019, the US Court ordered the US proceedings to be set for a jury trial to take place beginning on 1 December 2020 and continuing for approximately 10 days.
12. Discovery was ordered in the US proceedings, to be completed by 28 August 2020.
13. The SEC and Mr Pulier's representatives jointly (by consent) then petitioned the US Court requesting the issuance of Letters of Request by the US Court to this Court.
14. On 11 May 2020 the US Court issued the Letters of Request.
15. On 21 and 22 May 2020, McCullough Robertson wrote to each of the Witnesses and provided them with copies of the relevant Letters of Request issued by the US Court. Other than Mr Waldron, none of the Witnesses indicated that they opposed the SEC's application to give effect to the Letters of Request.
16. On 25 June 2020, an indictment was laid against Mr Waldron involving 13 counts for breaches of ss 129E(1)(b) and 249B(1) of the Crimes Act 1900 (NSW).
17. Mr Waldron's trial is listed to commence on 26 October 2020 in the District Court of NSW with an 8-week estimate ("the NSW criminal proceedings").
18. Until 14 September 2020, the order made by the US Court was that evidence and discovery with respect to the US proceedings must be completed by 16 October 2020.
19. On 14 September 2020, the US Court ordered, inter alia, that: 1. the factual discovery cut-off date for the US proceedings is amended to 16 November 2020; and 2. the jury trial for the US proceedings is vacated and is re-listed listed for a jury trial on 1 April 2021.

The Securities and Exchange Commission

1. The SEC is an independent federal government regulator responsible for enforcing, among other federal securities laws, the Securities Act and the Exchange Act. The SEC is also responsible for regulating the securities markets in the United States of America and protecting investors.
2. When the SEC brings civil proceedings against a person, it is authorized to seek enumerated statutory and equitable remedies, including, for example, civil injunctions to prevent violations of securities laws, pecuniary penalties, disgorgement of ill-gotten gains, and other forms of relief such as an officer/director bar.
3. The SEC does not have jurisdiction to institute criminal proceedings against a person or corporation; nor does it have jurisdiction to file criminal charges or to arrest or imprison individuals who have violated federal securities laws. The SEC may, however, refer potential criminal cases to criminal law enforcement authorities, such as the United States Attorney's Office ("the USAO"), or conduct its own SEC investigation while criminal authorities conduct parallel investigations involving the same conduct.

The US proceedings

1. The US proceedings concern the purchase by Computer Sciences Corporation ("CSC") of ServiceMesh pursuant to an Equity Purchase Agreement ("EPA") in 2013. According to the SEC's allegations, the EPA contained an earn-out provision, under which a portion of the consideration paid to ServiceMesh's equity holders, including Mr Pulier, was based on ServiceMesh's revenue.
2. Relevantly, under the final agreement, ServiceMesh shareholders would earn approximately $10.15 for every dollar of revenue above $20 million that ServiceMesh generated between 1 January 2013 and 31 January 2014, with a maximum earn-out payment of $137,014,548.
3. The SEC alleged that Mr Pulier, as the former CEO of ServiceMesh, improperly inflated the earn-out payment that CSC owed ServiceMesh equity holders and defrauded CSC by paying bribes to obtain two sets of contracts between ServiceMesh and the CBA.
4. The SEC claimed that Mr Pulier caused ServiceMesh to secure contracts with the CBA in: 1. December 2013, for products and services related to McAfee Inc ("the McAfee contract"); and 2. January 2014, for integrations between CBA's Agility Platform and various cloudcomputing products from third parties ("the Pivotal contract").
5. The two contracts contributed approximately $10.4 million in revenue towards the calculation of the earn-out payable by CSC under the EPA.
6. The SEC alleged that Mr Pulier secured the contracts with the CBA by paying bribes in 2014 to two CBA executives, Mr Hunter and Mr Waldron, through a charitable organisation named the Ace Foundation.
7. The SEC also alleges that Mr Pulier violated various federal securities laws by stating in a "representation letter" dated 30 January 2014 and "sub-certification" made by him in 30 April 2014 that he was not aware of any undisclosed "side agreements" with customers in connection with the earn-out contracts (and did not disclose the alleged scheme to pay bribes through the Ace Foundation).

Additional Proceedings by Other Parties

1. In addition to the US proceedings, there have been various other proceedings and prosecutions commenced by competent authorities in relation to persons involved in those events described above.
2. Relevantly: 1. In 2016, Mr Hunter, after pleading guilty to two counts of bribery and causing a financial disadvantage to his employer by deception, was sentenced to 3.5 years imprisonment. 2. The United States of America by the USAO filed a criminal indictment against Mr Pulier and Mr Waldron in the US Court which was dismissed with prejudice (such that it cannot be reinstated).

Nature of and Remedies sought in the US proceedings

1. In the US proceedings, the SEC has brought an action against Mr Pulier alleging that Mr Pulier: 1. engaged in fraud in connection with the offer of sale of securities in violation of s 17(a) of the Securities Act (15 USC s 77q(a)); and 2. in connection with the purchase or sale of securities in violation of s 10(b) of the Exchange Act (and in contravention of r 10b-5, promulgated under that Act); lied to auditors, circumvented internal controls (15 USC s 78j(b)); and 3. falsified books and records contrary to s 13(b)(5) of the Exchange Act (and in contravention of r 13b2-1, promulgated under that Act) (15 USC s 78m(b)(5)).
2. The relevant provisions of the Securities Act and Exchange Act, namely, 15 USC ss 77q(a), 78j(b) and 78m(b)(5), are extracted below: s 77q Fraudulent interstate transactions (a) Use of interstate commerce for purpose of fraud or deceit It shall be unlawful for any person in the offer or sale of any securities (including security-based swaps) or any security-based swap agreement (as defined in section 78c(a)(78) [1] of this title) by the use of any means or instruments of transportation or communication in interstate commerce or by use of the mails, directly or indirectly - (1) to employ any device, scheme, or artifice to defraud, or (2)to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; or (3)to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser. … s 78j Manipulative and deceptive devices It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange - … (b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, or any securities-based swap agreement [1] any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. … s 78m Periodical and other reports … (b) Form of report; books, records, and internal accounting; directives (5) No person shall knowingly circumvent or knowingly fail to implement a system of internal accounting controls or knowingly falsify any book, record, or account described in paragraph (2).
3. The relevant rules appear in the Code of Federal Regulations (see Commodity and Securities Exchanges, 17 CFR ss 240.10b-5 and 240.13b2-1) and are extracted below: s 240.10b-5 Employment of manipulative and deceptive devices. It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, (a) To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. (Sec. 10; 48 Stat. 891; 15 U.S.C. 78j) … s 240.13b2-1 Falsification of accounting records. No person shall directly or indirectly, falsify or cause to be falsified, any book, record or account subject to section 13(b)(2)(A) of the Securities Exchange Act. (15 U.S.C. 78m(b)(2); 15 U.S.C. 78m(a), 78m(b)(1), 78o(d), 78j(b), 78n(a), 78t(b), 78t(c))
4. The SEC seeks, amongst other things, orders from the US Court for civil penalties against Mr Pulier.
5. Relevantly, the SEC seeks against Mr Pulier under the Securities Act and Exchange Act: 1. Pursuant to 15 USC ss 77t(b) and 78u(d)(1), an order permanently enjoining Mr Pulier from directly or indirectly violating the applicable provisions and rules of the federal securities laws as alleged and asserted in the complaint ("No Violation Order"). 2. Pursuant to 15 USC s 78u(d)(5), an order that Mr Pulier disgorge all ill-gotten gains from his illegal conduct, together with pre-judgment interest thereon ("Disgorgement Order"). 3. Pursuant to 15 USC ss 77t(d) and 78u(d), an order that Mr Pulier pay civil penalties ("Civil Penalty Order"). 4. Pursuant to 15 USC ss 77t(e) and 78u(d)(2), an order prohibiting Mr Pulier from serving as an officer or director of any entity having a class of securities registered with the SEC pursuant to 15 USC s 78l or that is required to file reports pursuant to 15 USC s 78o(d) ("Director and Officer Ban").
6. By way of elaboration, Mr Miller stated: 1. The No Violation Order is to prohibit current and future violations of the federal securities law (obey-the-law injunctions). Unlike monetary penalties, injunctive relief is designed to prevent and deter future violations of the federal securities laws, rather than punish the violator. 2. The Civil Penalty Order is for the payment of monetary civil penalties (of varying severity) by the ordered party to the SEC. 3. The Director and Officer Ban may be imposed conditionally or unconditionally for any person who is held to have violated 15 USC ss 77q(a) or 78j(b), and where the relevant party's conduct demonstrates an "unfitness to serve as an officer or director": see first Miller affidavit at para 49.
7. As to No Violation Order, 15 USC ss 77t(b) and 78u(d)(1) provides as follows: s 77t Injunctions and prosecution of offenses … (b) Action for injunction or criminal prosecution in district court Whenever it shall appear to the Commission that any person is engaged or about to engage in any acts or practices which constitute or will constitute a violation of the provisions of this subchapter, or of any rule or regulation prescribed under authority thereof, the Commission may, in its discretion, bring an action in any district court of the United States, or United States court of any Territory, to enjoin such acts or practices, and upon a proper showing, a permanent or temporary injunction or restraining order shall be granted without bond. The Commission may transmit such evidence as may be available concerning such acts or practices to the Attorney General who may, in his discretion, institute the necessary criminal proceedings under this subchapter. Any such criminal proceeding may be brought either in the district wherein the transmittal of the prospectus or security complained of begins, or in the district wherein such prospectus or security is received. … s 78u Investigations and actions … (d) Injunction proceedings; authority of court to prohibit persons from serving as officers and directors; money penalties in civil actions (1) Whenever it shall appear to the Commission that any person is engaged or is about to engage in acts or practices constituting a violation of any provision of this chapter, the rules or regulations thereunder, the rules of a national securities exchange or registered securities association of which such person is a member or a person associated with a member, the rules of a registered clearing agency in which such person is a participant, the rules of the Public Company Accounting Oversight Board, of which such person is a registered public accounting firm or a person associated with such a firm, or the rules of the Municipal Securities Rulemaking Board, it may in its discretion bring an action in the proper district court of the United States, the United States District Court for the District of Columbia, or the United States courts of any territory or other place subject to the jurisdiction of the United States, to enjoin such acts or practices, and upon a proper showing a permanent or temporary injunction or restraining order shall be granted without bond. The Commission may transmit such evidence as may be available concerning such acts or practices as may constitute a violation of any provision of this chapter or the rules or regulations thereunder to the Attorney General, who may, in his discretion, institute the necessary criminal proceedings under this chapter.
8. Reference may also be made to 15 USC s 77t(a), which is extracted below: s 77t Injunctions and prosecution of offenses (a) Investigation of violations Whenever it shall appear to the Commission, either upon complaint or otherwise, that the provisions of this subchapter, or of any rule or regulation prescribed under authority thereof, have been or are about to be violated, it may, in its discretion, either require or permit such person to file with it a statement in writing, under oath, or otherwise, as to all the facts and circumstances concerning the subject matter which it believes to be in the public interest to investigate, and may investigate such facts.
9. As to the Disgorgement Order, 15 USC s 78u(d)(5) provides: s 78u Investigations and actions … (d)Injunction proceedings; authority of court to prohibit persons from serving as officers and directors; money penalties in civil actions … (5) Equitable Relief. - In any action or proceeding brought or instituted by the Commission under any provision of the securities laws, the Commission may seek, and any Federal court may grant, any equitable relief that may be appropriate or necessary for the benefit of investors.
10. As to the Civil Penalty Order, 15 USC ss 77t(d)(1) and 78u(d) provide: s 77t. Injunctions and prosecution of offenses … (d) Money penalties in civil actions (1) Money penalties in civil actions Whenever it shall appear to the Commission that any person has violated any provision of this subchapter, the rules or regulations thereunder, or a cease-and-desist order entered by the Commission pursuant to section 77h-1 of this title, other than by committing a violation subject to a penalty pursuant to section 78u-1 of this title, the Commission may bring an action in a United States district court to seek, and the court shall have jurisdiction to impose, upon a proper showing, a civil penalty to be paid by the person who committed such violation. s 78u Investigations and actions … (d) Injunction proceedings; authority of court to prohibit persons from serving as officers and directors; money penalties in civil actions (1) Whenever it shall appear to the Commission that any person is engaged or is about to engage in acts or practices constituting a violation of any provision of this chapter, the rules or regulations thereunder, the rules of a national securities exchange or registered securities association of which such person is a member or a person associated with a member, the rules of a registered clearing agency in which such person is a participant, the rules of the Public Company Accounting Oversight Board, of which such person is a registered public accounting firm or a person associated with such a firm, or the rules of the Municipal Securities Rulemaking Board, it may in its discretion bring an action in the proper district court of the United States, the United States District Court for the District of Columbia, or the United States courts of any territory or other place subject to the jurisdiction of the United States, to enjoin such acts or practices, and upon a proper showing a permanent or temporary injunction or restraining order shall be granted without bond. The Commission may transmit such evidence as may be available concerning such acts or practices as may constitute a violation of any provision of this chapter or the rules or regulations thereunder to the Attorney General, who may, in his discretion, institute the necessary criminal proceedings under this chapter. (2) Authority of Court To Prohibit Persons From Serving as Officers and Directors. - In any proceeding under paragraph (1) of this subsection, the court may prohibit, conditionally or unconditionally, and permanently or for such period of time as it shall determine, any person who violated section 78j(b) of this title or the rules or regulations thereunder from acting as an officer or director of any issuer that has a class of securities registered pursuant to section 78l of this title or that is required to file reports pursuant to section 78o(d) of this title if the person's conduct demonstrates unfitness to serve as an officer or director of any such issuer. (3) Money Penalties in Civil Actions. - (A) Authority of commission. - Whenever it shall appear to the Commission that any person has violated any provision of this chapter, the rules or regulations thereunder, or a cease-and-desist order entered by the Commission pursuant to section 78u-3 of this title, other than by committing a violation subject to a penalty pursuant to section 78u-1 of this title, the Commission may bring an action in a United States district court to seek, and the court shall have jurisdiction to impose, upon a proper showing, a civil penalty to be paid by the person who committed such violation. (B) Amount of penalty. - (i) First tier. - The amount of the penalty shall be determined by the court in light of the facts and circumstances. For each violation, the amount of the penalty shall not exceed the greater of (I) $5,000 for a natural person or $50,000 for any other person, or (II) the gross amount of pecuniary gain to such defendant as a result of the violation. (ii) Second tier. - Notwithstanding clause (i), the amount of penalty for each such violation shall not exceed the greater of (I) $50,000 for a natural person or $250,000 for any other person, or (II) the gross amount of pecuniary gain to such defendant as a result of the violation, if the violation described in subparagraph (A) involved fraud, deceit, manipulation, or deliberate or reckless disregard of a regulatory requirement. (iii) Third tier. - Notwithstanding clauses (i) and (ii), the amount of penalty for each such violation shall not exceed the greater of (I) $100,000 for a natural person or $500,000 for any other person, or (II) the gross amount of pecuniary gain to such defendant as a result of the violation, if - (aa) the violation described in subparagraph (A) involved fraud, deceit, manipulation, or deliberate or reckless disregard of a regulatory requirement; and (bb) such violation directly or indirectly resulted in substantial losses or created a significant risk of substantial losses to other persons. (C) Procedures for collection. - (i) Payment of penalty to treasury. - A penalty imposed under this section shall be payable into the Treasury of the United States, except as otherwise provided in section 7246 of this title and section 78u-6 of this title. (ii) Collection of penalties. - If a person upon whom such a penalty is imposed shall fail to pay such penalty within the time prescribed in the court's order, the Commission may refer the matter to the Attorney General who shall recover such penalty by action in the appropriate United States district court. (iii) Remedy not exclusive. - The actions authorized by this paragraph may be brought in addition to any other action that the Commission or the Attorney General is entitled to bring. (iv) Jurisdiction and venue. - For purposes of section 78aa of this title, actions under this paragraph shall be actions to enforce a liability or a duty created by this chapter. (D) Special provisions relating to a violation of a cease-and-desist order. - In an action to enforce a cease-and-desist order entered by the Commission pursuant to section 78u-3 of this title, each separate violation of such order shall be a separate offense, except that in the case of a violation through a continuing failure to comply with the order, each day of the failure to comply shall be deemed a separate offense. (4) Prohibition of attorneys' fees paid from commission disgorgement funds. - Except as otherwise ordered by the court upon motion by the Commission, or, in the case of an administrative action, as otherwise ordered by the Commission, funds disgorged as the result of an action brought by the Commission in Federal court, or as a result of any Commission administrative action, shall not be distributed as payment for attorneys' fees or expenses incurred by private parties seeking distribution of the disgorged funds. (5) Equitable Relief. - In any action or proceeding brought or instituted by the Commission under any provision of the securities laws, the Commission may seek, and any Federal court may grant, any equitable relief that may be appropriate or necessary for the benefit of investors. (6) Authority of a court to prohibit persons from participating in an offering of penny stock. - (A) In general. - In any proceeding under paragraph (1) against any person participating in, or, at the time of the alleged misconduct who was participating in, an offering of penny stock, the court may prohibit that person from participating in an offering of penny stock, conditionally or unconditionally, and permanently or for such period of time as the court shall determine. (B) Definition. - For purposes of this paragraph, the term "person participating in an offering of penny stock" includes any person engaging in activities with a broker, dealer, or issuer for purposes of issuing, trading, or inducing or attempting to induce the purchase or sale of, any penny stock. The Commission may, by rule or regulation, define such term to include other activities, and may, by rule, regulation, or order, exempt any person or class of persons, in whole or in part, conditionally or unconditionally, from inclusion in such term.
11. Mr Waldron also made the following submission with respect to civil penalties: 9. Any such penalty is one, which is due to the United States, and may be enforced by the United States, see 15 USC [s] 77t(d)(3)(a) and (b): (A) Payment of penalty to Treasury A penalty imposed under this section shall be payable into the Treasury of the United States, except as otherwise provided in section 7246 of this title and section 78u-6 of this title. (B) Collection of penalties If a person upon whom such a penalty is imposed shall fail to pay such penalty within the time prescribed in the court's order, the Commission may refer the matter to the Attorney General who shall recover such penalty by action in the appropriate United States district court.
12. As to the Director and Officer Ban, 15 USC ss 77t(e) and 78u(d)(2) are in the following terms: s 77t Injunctions and prosecution of offenses … (e) Authority of court to prohibit persons from serving as officers and directors In any proceeding under subsection (b), the court may prohibit, conditionally or unconditionally, and permanently or for such period of time as it shall determine, any person who violated section 77q(a)(1) of this title from acting as an officer or director of any issuer that has a class of securities registered pursuant to section 78l of this title or that is required to file reports pursuant to section 78o(d) of this title if the person's conduct demonstrates unfitness to serve as an officer or director of any such issuer. … s 78u Investigations and actions (d)Injunction proceedings; authority of court to prohibit persons from serving as officers and directors; money penalties in civil actions … (2) In any proceeding under paragraph (1) of this subsection, the court may prohibit, conditionally or unconditionally, and permanently or for such period of time as it shall determine, any person who violated section 78j(b) of this title or the rules or regulations thereunder from acting as an officer or director of any issuer that has a class of securities registered pursuant to section 78l of this title or that is required to file reports pursuant to section 78o(d) of this title if the person's conduct demonstrates unfitness to serve as an officer or director of any such issuer.
13. Mr Waldron also referred to the provision of 15 USC s 77x, which is extracted below: s 77x Penalties Any person who willfully violates any of the provisions of this subchapter, or the rules and regulations promulgated by the Commission under authority thereof, or any person who willfully, in a registration statement filed under this subchapter, makes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, shall upon conviction be fined not more than $10,000 or imprisoned not more than five years, or both.
14. Reference was also made to various investigative functions or powers of the SEC in the following submission: 12. The applicant's power of investigation is expanded by 15 USC [s] 78u(a)(1) (emphasis added): The Commission may, in its discretion, make such investigations as it deems necessary to determine whether any person has violated, is violating, or is about to violate any provision of this chapter, the rules or regulations thereunder, the rules of a national securities exchange or registered securities association of which such person is a member or a person associated, or, as to any act or practice, or omission to act, while associated with a member, formerly associated with a member, the rules of a registered clearing agency in which such person is a participant, or, as to any act or practice, or omission to act, while a participant, was a participant, the rules of the Public Company Accounting Oversight Board, of which such person is a registered public accounting firm, a person associated with such a firm, or, as to any act, practice, or omission to act, while associated with such firm, a person formerly associated with such a firm, or the rules of the Municipal Securities Rulemaking Board, and may require or permit any person to file with it a statement in writing, under oath or otherwise as the Commission shall determine, as to all the facts and circumstances concerning the matter to be investigated. The Commission is authorized in its discretion, to publish information concerning any such violations, and to investigate any facts, conditions, practices, or matters which it may deem necessary or proper to aid in the enforcement of such provisions, in the prescribing of rules and regulations under this chapter, or in securing information to serve as a basis for recommending further legislation concerning the matters to which this chapter relates. 13. In aid of its investigative function, the applicant has a variety of coercive powers, see 15 USC [s] 78u(b): For the purpose of any such investigation, or any other proceeding under this chapter, any member of the Commission or any officer designated by it is empowered to administer oaths and affirmations, subpena witnesses, compel their attendance, take evidence, and require the production of any books, papers, correspondence, memoranda, or other records which the Commission deems relevant or material to the inquiry. Such attendance of witnesses and the production of any such records may be required from any place in the United States or any State at any designated place of hearing. 14. Such coercive powers are enforceable upon pain of imprisonment, see 15 USC [s] 78u(c): In case of contumacy by, or refusal to obey a subpena issued to, any person, the Commission may invoke the aid of any court of the United States within the jurisdiction of which such investigation or proceeding is carried on, or where such person resides or carries on business, in requiring the attendance and testimony of witnesses and the production of books, papers, correspondence, memoranda, and other records. And such court may issue an order requiring such person to appear before the Commission or member or officer designated by the Commission, there to produce records, if so ordered, or to give testimony touching the matter under investigation or in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof. All process in any such case may be served in the judicial district whereof such person is an inhabitant or wherever he may be found. Any person who shall, without just cause, fail or refuse to attend and testify or to answer any lawful inquiry or to produce books, papers, correspondence, memoranda, and other records, if in his power so to do, in obedience to the subpena of the Commission, shall be guilty of a misdemeanor and, upon conviction, shall be subject to a fine of not more than $1,000 or to imprisonment for a term of not more than one year, or both. [Original emphasis.]
15. Furthermore, Mr Lange of counsel for Mr Waldron made reference to monetary penalties as follows: 17. The applicant may also seek monetary penalties, see 15 USC [s] 78u(d)(3) (emphasis added): Whenever it shall appear to the Commission that any person has violated any provision of this chapter, the rules or regulations thereunder, or a cease-and-desist order entered by the Commission pursuant to section 78u-3 of this title, other than by committing a violation subject to a penalty pursuant to section 78u-1 of this title, the Commission may bring an action in a United States district court to seek, and the court shall have jurisdiction to impose, upon a proper showing, a civil penalty to be paid by the person who committed such violation. 18. Such penalties are due to the United States, and may be enforced by the United States, see 15 USC [s] 78u(3)(c)(i) and (ii): (i) Payment of penalty to treasury. - A penalty imposed under this section shall be payable into the Treasury of the United States, except as otherwise provided in section 7246 of this title and section 78u-6 of this title. (ii) Collection of penalties. - If a person upon whom such a penalty is imposed shall fail to pay such penalty within the time prescribed in the court's order, the Commission may refer the matter to the Attorney General who shall recover such penalty by action in the appropriate United States district court.
16. Lastly, Mr Waldron made a submission as to the provisions of 15 USC s 78ff(a) as follows: 19. Breaches of the provisions set out in Chapter 2B are, themselves, criminal offences, see 15 USC [s] 78ff(a): Any person who willfully violates any provision of this chapter (other than section 78dd-1 of this title), or any rule or regulation thereunder the violation of which is made unlawful or the observance of which is required under the terms of this chapter, or any person who willfully and knowingly makes, or causes to be made, any statement in any application, report, or document required to be filed under this chapter or any rule or regulation thereunder or any undertaking contained in a registration statement as provided in subsection (d) of section 78o of this title, or by any self-regulatory organization in connection with an application for membership or participation therein or to become associated with a member thereof which statement was false or misleading with respect to any material fact, shall upon conviction be fined not more than $5,000,000, or imprisoned not more than 20 years, or both, except that when such person is a person other than a natural person, a fine not exceeding $25,000,000 may be imposed; but no person shall be subject to imprisonment under this section for the violation of any rule or regulation if he proves that he had no knowledge of such rule or regulation.

The Letters of Request

1. The terms of the Letters of Request are relatively similar for each witness requested to be deposed.
2. Each letter of request, relevantly, inter alia: 1. Bears a title, "Letter of Request for International Judicial Assistance Pursuant to the Hague Convention of 18 March 1970 on the Taking of Evidence in Civil or Commercial Matters". 2. States that the testimony requested is sought for use as evidence at trial, is relevant to the trial of the US proceedings and the request for the testimony is not unduly burdensome. 3. Provides a description of the person to be compelled. For example, Mr Twynham is described as a former employee of ServiceMesh, who is to partake in an oral examination as to certain examination topics. 4. Indicates the sender of the request is the Hon Rozella A Oliver of the US Court. 5. Specifies the date upon the requesting authority requires receipt of response to the letter of request. 6. Provides that the request is addressed to this Court. 7. Stipulates the parties, namely, the SEC and Mr Pulier, and intervenor are identified. 8. States the nature of the US proceedings and notes that the SEC has brought civil claims against Mr Pulier asserting the violation of various securities regulations, that the SEC will be required to prove its claims by a preponderance of the evidence, and if successful will seek disgorgement of ill-gotten gains and a civil penalty. 9. Provides a summary of the SEC's complaint against Mr Waldron to the effect set out earlier in this judgment including "the SEC claims that Mr Pulier secured there CBA contracts and obtained an additional payout under the earn-out provision by paying bribes in 2014 to two CBA executives, Keith Hunter and Jon Waldron". 10. Provides a summary of Mr Pulier's defence to the SEC's complaint, namely, that: 1. Mr Pulier denies paying bribes to CBA executives or any other person to increase CSC's earn-out payment to ServiceMesh equity holders; 2. the CBA contracts with ServiceMesh were legitimately obtained; 3. Mr Pulier did not engage in or seek to evade detection of a scheme to defraud CSC by making bribe payments though the Ace Foundation; and 4. by reason of the above, Mr Pulier did not make any false representation to CSC. 1. States the nature of the evidence to be obtained from each witness, which is stated to be oral testimony on the examination topics set out at Exhibit A to each letter, and the basis upon which each Witness has knowledge of the examinations topics. An illustration of such topics is the examination topic in the Letter of Request concerning Mr Waldron which was expressed as follows: 1. Mr. Waldron's role and responsibilities at the Commonwealth Bank of Australia ("CBA"). 2. Mr. Waldron's relationships with Eric Pulier, Michael Harte, Brad Twynham, Hans Gyllstrom, and/or Keith Hunter while he worked at CBA. 3. Mr. Waldron's knowledge of plans or efforts to integrate McAfee, Pivotal, RedHat, and Microsoft cloud products into CBA's IT infrastructure from 2009 to 2014. 4. Mr. Waldron's knowledge of plans or efforts to integrate ServiceMesh products or services into CBA's IT infrastructure from 2009 to 2014. 5. Mr. Waldron's knowledge of the products and services ServiceMesh marketed, sold, or provided to CBA between January 1, 2009 and December 31, 2014. 6. Mr. Waldron's knowledge of CBA's plans to develop or modernize its infrastructure in 2013 and 2014. 7. Any agreements Waldron, Hunter, Harte, or anyone else had with Pulier regarding the McAfee and Pivotal contracts. 8. Mr. Waldron's knowledge of the Ace Foundation, including its origins, executives, officers, directors, control persons, clients and consultants. 9. Mr. Waldron's oral communications with representatives of any entities, including ServiceMesh, CBA, CSC, or Barclays, regarding an investigation into him, Mr. Pulier, Harte, Hunter, or Ace and/or the acquisition of ServiceMesh by CSC. 1. Stipulates the purpose of the evidence sought, including the context in which the Witness has knowledge and their involvement in the matters the subject of the SEC's complaint (as set out, in respect of each Witness, below). 2. Provides the methods or procedures requested by the US Court that are to be followed in examining the Witnesses. These methods are essentially the same as would be required to be carried out in any examination ordered by this Court.

Relevance of Witnesses to the Us Proceedings

1. Each witness sought to be examined by the SEC is a resident in NSW.
2. Each witness is described in the Letter of Request pertaining to that Witness as (in relation to the "Purpose of the Evidence Sought"): "possess[ing] information that is relevant and essential to" the US proceedings brought by the SEC against Mr Pulier.
3. I accept the submission of the SEC, in broad terms, that the Witnesses have, so far as the SEC is concerned, knowledge that goes to: 1. CBA or ServiceMesh's ordinary course of conduct in purchasing information technology related goods and services; 2. whether the McAfee and Pivotal contracts were consistent with the ordinary course of conduct; 3. the roles that the McAfee and Pivotal contracts played in CBA's business; 4. the extent to which Mr Waldron, Mr Hunter, and Michael Harte were involved in getting the McAfee and Pivotal contracts finalised and approved; and 5. whether the McAfee and/or Pivotal contracts were illegitimately obtained.
4. Of the Witnesses, Mr Keaney and Mr Murphy also have knowledge as to: 1. the evidence uncovered by them during the internal investigation into the payments made to Messrs Waldron and Hunter; 2. Mr Hunter's alleged explanations for those payments; and 3. the documentation Mr Hunter provided to explain those payments.
5. The relevance of each witness and their role in the underlying context of the US proceedings, as described in the Letters of Request issued by the US Court, appears below.

Mr Twynham

1. Mr Twynham worked for ServiceMesh at the time of the alleged bribery scheme as the Vice President of Emerging Market Programs.
2. For several years, he worked directly with Mr Hunter and Mr Waldron, including on the McAfee and Pivotal contracts.
3. Mr Twynham exchanged several emails with Mr Pulier, Mr Hunter, and Mr Waldron about the McAfee and Pivotal contracts, where they discussed the status of the contracts, the cost of the contracts, ServiceMesh's ability to recognise revenue from the contracts, why the contracts were necessary, and the steps needed to complete the contracts.
4. Mr Twynham also exchanged text messages with Mr Waldron at or around the time the SEC alleges Mr Waldron received bribe payments.

Mr Nicholson

1. Mr Nicholson worked for CBA during the alleged bribery scheme as Executive Manager of Software Asset Management.
2. Mr Nicholson worked directly with Messrs Waldron and Hunter on the McAfee contract and reviewed it to determine whether it was financially viable, legally sustainable, represented an acceptable level of risk, complied with relevant legislation, and met all of CBA's policies and procedures.
3. Mr Nicholson communicated with Mr Waldron and others regarding the McAfee contract because he was uncomfortable with the deal. Although Mr Nicholson raised his concerns about the McAfee contract with Mr Waldron and his supervisor, Messrs Waldron and Hunter pushed the deal through.

Mr Waldron

1. Mr Waldron worked for ServiceMesh at the time of the alleged bribery scheme as the General Manager of IT Engineering. He worked for Messrs Hunter and Harte and was instrumental in getting both the McAfee and Pivotal contracts approved and finalised.
2. The SEC contends that Messrs Waldron, Hunter and Harte all conspired with Mr Pulier to defraud CSC out of more than $98 million by accepting bribes from Mr Pulier while they were employed at CBA in exchange for helping Mr Pulier and ServiceMesh obtain the McAfee and Pivotal contracts that together were worth over $10 million.
3. The SEC alleges that Mr Pulier caused a total of $1.9 million in bribe payments to be paid to Mr Waldron.

Mr Kelada

1. Mr Kelada worked for CBA during the alleged bribery scheme in IT Engineering Technology Platforms.
2. One of his responsibilities was to determine how Pivotal could be introduced into CBA's IT databases in a manner that satisfied CBA's application needs and was adapted to its security and risk environment.
3. Mr Kelada spoke with Mr Waldron about Pivotal and CBA's plans for implementing it.
4. In addition, Mr Kelada knew the services that ServiceMesh was providing to CBA through its Agility Platform and, at around the time of the alleged bribery scheme, gave an assessment of the overall business relationship between ServiceMesh and CBA.
5. Mr Kelada identified a number of issues in the Agility Platform that existed during the alleged bribery scheme and during the time the Pivotal contract was being negotiated and finalised.

Mr Richardson

1. Mr Richardson worked for CBA during the alleged bribery scheme as a General Manager in Partner Management of IT Delivery Services. He worked directly with Mr Waldron and Mr Hunter on the McAfee contract and had raised several potential concerns about the deal regarding its pricing, legal implications, and the risks that it created for CBA.
2. Mr Richardson was kept apprised of the McAfee contract as it was being finalised and was tasked with handling several of the issues that arose during that process. Mr Richardson exchanged several emails with Messrs Waldron and Hunter about the McAfee contract and also briefed Mr Harte on the McAfee contract shortly before it was approved.

Mr Pennington

1. Mr Pennington worked for CBA during the alleged bribery scheme as an Executive Manager of Engineering Delivery in IT Engineering Enterprise Services. He worked directly with Messrs Waldron and Hunter on the McAfee and Pivotal contracts.
2. Mr Pennington reviewed the transaction documents for the McAfee contract and exchanged emails with Mr Twynham, and Messrs Waldron, Hunter, and Harte regarding, inter alia, how the McAfee contract departed from an earlier services agreement, how quickly the McAfee contract could be finalised, and who had the legal authority to sign the McAfee contract on behalf of CBA.
3. Mr Pennington also worked directly with Messrs Waldron and Hunter on the Pivotal contract. Mr Pennington reviewed the transaction documents for the Pivotal contract and was the one who broke them up into several separate contracts based on discussions he had with Mr Hunter.

Ms Lane

1. Ms Lane worked for CBA during the alleged bribery scheme in the Technology Risk in the IT Delivery Services business unit at CBA.
2. Ms Lane was directly involved in reviewing the McAfee contract and raised a potential concern about the urgency surrounding the approval of the McAfee contract and whether there was sufficient time to conduct a risk assessment of the contract.
3. In particular, Ms Lane felt that the short amount of time she had to work on the McAfee contract would prevent her from providing definitive advice on the risk the contract posed to CBA and recommended delaying execution of the contract.

Mr Smith

1. Mr Smith worked for CBA during the alleged bribery scheme as the Head of Technology Risk in the IT Delivery Services business unit at CBA.
2. Mr Smith was directly involved in reviewing the McAfee contract. He raised a potential concern about the McAfee contract regarding the risk that it created for CBA.
3. In particular, Mr Smith wanted a risk assessment done on the McAfee contract because it involved new services and products coming from an existing supplier.
4. Mr Smith's co-worker, Mr Richardson, raised Mr Smith's concerns with Messrs Waldron and Hunter before the McAfee deal was approved.

Mr Keaney and Mr Murphy

1. Mr Keaney and Mr Murphy worked for CBA during the alleged bribery scheme in Group Investigations and Advisory Services.
2. Mr Keaney and Mr Murphy questioned Mr Hunter as part of an internal investigation conducted by CBA into the payments Messrs Hunter and Waldron received in their bank accounts.
3. Mr Keaney and Mr Murphy requested that Mr Hunter provide information and documentation explaining the alleged bribery payments. Mr Hunter told him the payments were for services Mr Hunter allegedly provided to an entity in connection with building more than 15 data centres and refurbishing approximately 30 more.
4. Mr Hunter provided what he claimed were Statements of Work and invoices submitted to that entity.
5. Senior counsel for Mr Pulier, Ms H Younan SC, also described the relevance of each witness to the US proceedings. As to Messrs Twynham, Nicholson and Waldron, the following submission was advanced by Mr Pulier: Bradley Twynham The Applicant proposes to examine Mr Twynham in relation to the topics for examination in the Applicant's Letter of Request relating to Mr Twynham (Twynham Letter of Request: JR-1, pp 134-143), Appendix A. The Applicant's evidence about the relevance of Mr Twynham's evidence to the California Proceeding, and his ability to answer the Applicant's proposed topics for his examination, is at [32]-[34] of the Rapore Affidavit. Mr Twynham has legal representation. In response to a request to indicate his attitude to being examined on the proposed topics, Mr Twynham sought confirmation that the Applicant is willing to reimburse him for his reasonable legal expenses incurred in relation to the examination (Ford Affidavit [9]-[10]). Further confirmation of Mr Twynham's position has been sought (Ford Affidavit [11]-[13]). A draft subpoena for the examination of Mr Twynham is at SMF-2, pp 171-173. Marcus Alan Leith Nicholson The Applicant proposes to examine Mr Nicholson in relation to the topics for examination in the Applicant's Letter of Request relating to Mr Nicholson (Nicholson Letter of Request: JR-1, pp 153-161), Appendix A. The Applicant's evidence about the relevance of Mr Nicholson's evidence to the California Proceeding, and his ability to answer the Applicant's proposed topics for his examination, is at [38]-[40] of the Rapore Affidavit. Mr Nicholson's attitude to being examined on the topics for examination in the Nicholson Letter of Request is presently unknown. Several attempts have been made to contact Mr Nicholson, all of which have been unsuccessful (Ford Affidavit [27]-[43]). On the basis that the subpoena/documents sought to be served cannot practicably be served (personally) on Mr Nicholson, substituted service is sought pursuant to reg 10.14 of the UCPR (in lieu of personal service under reg 10.20). A draft subpoena for the examination of Mr Nicholson is at SMF-2, pp 177-179. Jon Waldron The Applicant proposes to examine Mr Waldron in relation to the topics for examination in the Applicant's Letter of Request relating to Mr Waldron (Waldron Letter of Request: JR-1, pp 216-226), Appendix A. The Applicant's evidence about the relevance of Mr Waldron's evidence to the California Proceeding, and his ability to answer the Applicant's proposed topics for his examination, is at [57]-[60] of the Rapore Affidavit. Mr Waldron has legal representation. He has indicated that he objects to being examined on the topics in the Waldron Letter of Request (Ford Affidavit [44]-[45]). A draft subpoena for the examination of Mr Waldron is at SMF-2, pp 168-170.
6. The form of each of the above references to Mr Rapore's affidavit are in similar terms. For example, the last mentioned extract of senior counsel's written submissions refers to Mr Rapore's affidavit at paras 57-60. That aspect of his evidence is as follows: 57. I believe that Mr Waldron has knowledge that is relevant to the claims and defences in the California Proceeding. 58. The Joint Application describes the basis upon which Mr Waldron's evidence is relevant to the California Proceeding: Mr Waldron worked for CBA at the time of CSC's acquisition of ServiceMesh and the earnout period as the General Manager of IT engineering. He worked for Hunter and Harte and was instrumental in getting both the McAfee and Pivotal contracts approved and finalized. The SEC contends that Waldron, Hunter and Harte all conspired with Defendant to defraud CSC out of more than $98 million by accepting bribes from Defendant while they were employed at CBA in exchange for helping Defendant and SMI obtain the McAfee and Pivotal contracts, acts that together were worth over $10 million. The SEC alleges that Defendant caused a total of $1.9 million in bribe payments to be paid to Waldron, all of which were deposited into Waldron's bank accounts at CBA or what Pulier contends is a wholly owned subsidiary of CBA He therefore possesses information that is relevant and essential to this action including the payments Waldron received from Ace his understanding of CBA's monitoring of transactions to or from accounts hold at CBA or its subsidiaries. Waldron's relationship with Defendant, Hunter and Harte. Waldron's role in and knowledge of CBA's plans for its cloud business, his belief as to the veracity of Hunters statements concerning the alleged scheme to defraud CSC, CBA's ordinary course of conduct in purchasing information technology related goods and services, whether the McAfee and Pivotal contracts were consistent with the ordinary course of conduct, the role that the McAfee and Pivotal contracts played in CBA's business, the extent to which Waldron, Hunter, and Harte were involved in getting the McAfee and Pivotal contracts finalized and approved and the legitimacy of those contracts. 59. Additionally the Waldron Letter of Request contains a section titled "8(a) Evidence to be obtained" which states: The SEC has indicated to Defendant's counsel that it intends to seek a letter of request for sworn testimony from Mr Waldron to be used at trial in this matter. In a related case against Mr Pulier CSC sought a similar letter of request and filed an application before the Supreme Court of New South Wales to compel testimony from Mr Waldron. Mr. Waldron successfully opposed CSC's application in the Supreme Court of New South Wales. See Application of Computer Sciences Corporations under the Evidence on Commission Act 1995 [2019] NSWSC 777. Mr. Puller does not take a position on whether or not Mr. Waldron should be compelled to provide evidence in this action. Should the Supreme Court of New South Wales compel Mr. Waldron to provide testimony in response to the SEC's request, however, this Court seeks sworn testimony from Mr. Waldron on the additional topics identified in Appendix A attached hereto. 60. The Waldron Letter of Request also contains a section titled "8(b) Purpose of the evidence sought", which states. The SEC alleges that Mr. Pulier paid bribes to Mr. Waldron for his help in procuring contracts between CBA and ServiceMesh. Mr Waldron's testimony will be material to determining facts including whether the CBA contracts were procured lawfully CBA's ordinary course of conduct in purchasing information technology related goods and services, whether contracts between ServiceMesh and CBA arose, in the ordinary course, the role that those contracts played in CBA's business, and whether those contracts were otherwise legitimately obtained. Accordingly, this Court respectfully requests that Mr. Waldron be compelled to provide oral testimony to be preserved for use at trial in this action on the narrow and specific Deposition Topics set forth in the attached Appendix A to elicit and record testimony appropriate to be given at trial.
7. The submissions by Mr Pulier as to the remaining witness follow a similar pattern.

POSITION OF INTERESTED PARTIES

1. The position of each of the parties with respect to the orders sought by the SEC in its summons was, at the outset of the hearing before the Court, as appears below.

Mr Twynham

1. Mr Twynham consented to the orders sought by SEC, insofar as they affect him. That consent was on the basis that the SEC agreed to pay his reasonable legal expenses in relation to his deposition by the SEC, being the reasonable costs of any advice provided in relation to the deposition, preparation for the deposition and representation during the deposition.

The CBA Witnesses

1. The CBA witnesses (namely, Messrs Kelada, Murphy, Pennington, Richardson and Smith and Ms Keaney) neither consented to nor opposed the application for examinations, provided that: 1. the SEC and Mr Pulier examinations were conducted concurrently; 2. the representatives for witness/CBA attended; 3. examinations would be via AVL; and 4. the SEC / Mr Pulier reimbursed reasonable legal expenses in relation to the examinations (including in relation to advice, preparation and representation during examinations).

Mr Waldron

1. Mr Waldron opposed orders sought in the summons.

Mr Nicholson

1. Mr Nicholson neither consented to nor opposed the orders sought in the summons and motion, provided that: 1. the SEC / Mr Pulier examinations were conducted concurrently; 2. an order was made pursuant to s 33(7) of the Act, including for loss of time in preparation for examination; and 3. an order was made for his costs of the proceedings.

Mr Pulier and the Proposed Short Minutes of Order

1. Upon the second day of the hearing, Ms Younan SC who appeared for Mr Pulier, produced short minutes of order ("the short minutes") in mark-up form proposing variations to the orders proposed in the summons (and corresponding to the short minutes of order produced at the outset of the hearing by the SEC). The short minutes are attached to this judgment, without mark-up, and are entitled "Annexure A". Those orders effectively dealt with the qualifications expressed by various parties as to the summons in the above summary, save for Mr Waldron.
2. As to those short minutes, the position of the parties (other than Mr Waldron, who maintained opposition to the proposed orders) was as follows: 1. Mr Nicholson would accept service of a subpoena by email per para 16 of the short minutes and did not oppose the proposed orders in the short minutes. 2. The CBA witnesses accepted the proposed orders. It may be noted, in that respect, that Ms Mann, who appeared for the CBA witnesses, sought the examinations occur concurrently (which position was agreed, contrary to Ms Mann's initial understanding) by the SEC. 3. Mr Twynham had consented to the orders sought by the SEC in the summons, His legal representation was excused at the outset of the proceedings and may be taken to have acquiesced in the short minutes, subject to the previously stated position rejecting expenses and costs. 4. The SEC consented to the proposed orders, accepting that para 18 of the short minutes may be dealt with at a later time (a position accepted by the CBA witnesses and not disputed by counsel for the other parties). 5. As to para 3 of the short minutes, Mr Waldron contended (without detracting from his overall objection to the orders) that he should, if the subject of orders for examination, be consulted as part of the process envisaged in that provision. Again, there was no demur from that approach and it is one applicable to all parties.
3. In that sense, the proceedings went forward, in substance, upon the summons being pressed on an amended basis in that way.

ORDERS OF THE COURT

1. On 21 October 2020, the Court announced orders which were entered on 22 October 2020. Those orders are extracted below: TERMS OF ORDER MADE BY THE COURT 1. Pursuant to section 33 of the Evidence on Commission Act 1995 (NSW) (Evidence on Commission Act), and pursuant to Letters of Request issued by the United States District Court Central District of California in proceedings numbered 2:17-cv-07124-PSG-RAO annexed to the Affidavit of Douglas M. Miller sworn 18 August 2020 and to the Affidavit of James Rapore sworn 14 September 2020, leave is granted to issue and serve Subpoenas to Attend and Give Evidence (in substantially the same form as that contained at Court Book Volume 2 - 695 to 754, or in such other form as the Court may order) to each of the individuals set out in Schedule 1 to this Summons except Mr Waldron (individually each Witness, and together the Witnesses), for each Witness to be examined orally and under oath or affirmation about those matters pertaining to each Witness that are set out in the 'Examination Topics' listed in each Witness' respective Letter of Request (individually each Examination, and together the Examinations). 2. An order that, at the time of service of the Subpoenas to Attend Give Evidence issued pursuant to Order 1 above, each of the Witnesses be served with a copy of: (a) the orders of the Court made pursuant to this Summons; (b) this Summons; (c) Mr Pulier's (Applicant) Notice of Motion; (d) the Affidavit of Jason Alexander Willi Munstermann sworn 19 August 2020; (e) the Affidavit of Douglas M. Miller sworn 18 August 2020; (f) the affidavit of Susanna Ford affirmed 15 September 2020; and (g) the affidavit of James Rapore sworn 14 September 2020. 3. An order that a person agreed upon by the Plaintiff and Applicant in consultation with the Witnesses, or otherwise such other person or judicial officer as the Court may determine, be appointed as the examiner by whom the Examinations are to be conducted (Examiner). 4. The subpoenas issued pursuant to Order 1 be returnable before the Examiner. 5. An order that the Examinations commence on dates to be agreed by the parties, Witnesses and the Examiner, or otherwise fixed by the Court, with at least one day between each Examination, and continue thereafter from day to day until complete. 6. An order that the Examinations be conducted concurrently with the examinations ordered pursuant to the Notice of Motion filed in these proceedings by Mr Eric Pulier on 15 September 2020. 7. An order that the Examinations be conducted at the offices of the Plaintiff's solicitor, being McCullough Robertson Lawyers, Level 32, 19 Martin Place Sydney, NSW 2000. 8. An order that the Examinations: (a) be attended by trial counsel for the Plaintiff and the Applicant (being legal practitioners of the Supreme Court of New South Wales and/or legal practitioners of the United States of America) who shall be permitted to examine and cross-examine each Witness; (b) be transcribed by a stenographer and recorded by a videographer, both to be arranged by the Plaintiff at the Plaintiff's expense; (c) be attended by legal representatives for each Witness if he or she chooses to have it; and (d) be attended by a legal representative for the Commonwealth Bank of Australia. 9. An order, pursuant to s 33(1) of the Evidence on Commission Act and rule 31.3(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), that: (a) the Plaintiff's and Applicant's legal representatives appear at the Examinations by audio-visual link. (b) The Witnesses and their legal representatives and Commonwealth Bank of Australia appear at the Examinations by audio-visual link; 10. An order that, following the completion of the Examination of each Witness: (a) a transcript of the examination and audio visual recording be prepared and certified in accordance with rules 24.14(1)-(3) of the UCPR; (b) the certified transcript, certified audio visual recording, and any exhibit retained by the Examiner, be sent by the Examiner to the principal registrar of the Supreme Court in accordance with rules 52.4(3) and 52.4(4) of the UCPR; and (c) a Registrar of the Supreme Court issue a sealed Certificate, and send that Certificate and annexures to the legal representatives of the Plaintiff and Applicant, in accordance with rule 52.5 of the UCPR. 11. An order that the transcript of each Witness' sworn testimony be authenticated by the Witness' signature acknowledging it as a true record. 12. An order that any documents used in the Examination are to be marked as exhibits and incorporated into the record of the sworn testimony. 13. An order that, within 5 days after each Examination, the authenticated transcript of the Examination and audio visual recording be provided to the legal representatives of the Plaintiff and Applicant. 14. Subject to further order of this Court, the Plaintiff and Applicant may disclose the documents and audio visual recording referred to in Order 8(b), 11, 12 and 13 to other parties in United States District Court Central District of California in proceedings numbered 2:17-cv-07124-PSG-RAO. 15. The reasonable costs of the Examinations be borne by the Plaintiff, including: a. the expense of the Examiner; b. the videographer and preparation of the transcript; and c. the Witnesses' conduct money, expenses and loss of time on attendance in accordance with section 33(7) of the Evidence on Commission Act; and d. the Witnesses' legal expenses reasonably incurred in relation to advice about, preparation for, and representation during the Examinations. 16. Pursuant to rule 10.14 of the UCPR, personal service on Marcus Nicholson of any subpoena ordered in accordance with Order 1 be effected by sending an email to [email omitted], including an electronic link to download the documents required to be served. 17. Liberty to the Plaintiff to apply to the Duty Judge in Common Law or to any Judge who may be allocated to these proceedings for the purposes of case management of the Examinations. 18. Costs are reserved. Mr Waldron 19. Determination of the Summons and the Applicant's Notice of Motion with respect to Mr Waldron is deferred until after the hearing of the criminal proceedings presently commenced against Mr Waldron. 20. Subject to Order 19, leave is granted to Mr Waldron and the Plaintiff to adduce further evidence as to the prospect of Mr Waldron being subject to civil penalty proceedings. NOTE: 21. Orders 19 and 20 are not intended to delay United States District Court Central District of California proceedings numbered 2:17-cv-07124-PSG-RAO.
2. These are the Court's reasons for decision, with respect to those orders made upon the summons and motion.

THE STATUTORY SCHEME

1. Part 4 of the Act is in the following terms: Part 4 Taking of evidence for foreign and Australian Courts 31 Definitions In this Part: Australian court means a person or body authorised to exercise an adjudicative function: (a) whether on behalf of a court or otherwise, and (b) whether or not the person or body is empowered to require the answering of questions or the production of documents. proceedings means: (a) proceedings in any civil or commercial matter, or (b) proceedings in or before a court in relation to the commission of an offence or an alleged offence. property includes any land, chattel or other corporeal property of any description. request includes any commission, order or other process issued by or on behalf of a requesting court. requesting court means a court or tribunal by or on whose behalf a request is issued, as referred to in section 32. 32 Application to the Supreme Court for assistance in obtaining evidence for proceedings in other court (1) The following provisions of this Part apply if an application is made to the Supreme Court for an order for evidence to be obtained in the State and the Court is satisfied: (a) that the application is made in pursuance of a request issued by or on behalf of a court or tribunal exercising jurisdiction in a place outside the State, and (b) that the evidence to which the application relates is to be obtained for the purposes of proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated. (2) This Part does not apply in respect of proceedings relating to the commission of an offence or an alleged offence unless the requesting court is a court of a place in Australia or of New Zealand. 33 Power of the Supreme Court to give effect to application for assistance (1) The Supreme Court has power, if an application is made under section 32, by order to make such provision for obtaining evidence in the State as may appear to the Court to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made. (2) An order under this section may require a specified person to take such steps as the Court may consider appropriate for that purpose. (3) Without limiting the generality of subsections (1) and (2), an order under this section may, in particular, make provision as follows: (a) for the examination of witnesses, either orally or in writing, (b) for the production of documents, (c) for the inspection, photographing, preservation, custody or detention of any property, (d) for the taking of samples of any property and the carrying out of any experiments on or with any property, (e) for the medical examination of any person, (f) without limiting paragraph (e), for the taking and testing of samples of blood from any person. (4) An order under this section is not to require any particular steps to be taken unless they are steps that can be required to be taken by way of obtaining evidence for the purposes of proceedings in the Supreme Court (whether or not proceedings of the same description as those to which the application for the order relates). (5) Subsection (4) does not preclude the making of an order requiring a person to give testimony (either orally or in writing) otherwise than on oath if this is asked for by the requesting court. (6) An order under this section must not require a person: (a) to state what documents relevant to the proceedings to which the application for the order relates are or have been in the person's possession, custody or power, or (b) to produce any documents other than particular documents specified in the order and appearing to the court making the order to be, or likely to be, in the person's possession, custody or power. (7) A person who, because of an order under this section, is required to attend at any place is entitled to similar conduct money and payment for expenses and loss of time on attendance as is a witness in proceedings before the Supreme Court. 34 Privilege of witnesses (1) A person must not be compelled by virtue of an order under section 33 to give any evidence which the person could not be compelled to give: (a) in similar proceedings in the State, or (b) in similar proceedings in the place in which the requesting court exercises jurisdiction. (2) Subsection (1) (b) does not apply unless the claim of the person in question to be exempt from giving evidence is either: (a) supported by a statement contained in the request (whether it is so supported unconditionally or subject to conditions that are fulfilled), or (b) conceded by the applicant for the order. (3) If such a claim by any person is not so supported or conceded, the person may (subject to the other provisions of this section) be required to give the evidence to which the claim relates, but that evidence is not to be transmitted to the requesting court if that court, on the matter being referred to it, upholds the claim. (4) In this section, references to giving evidence include references to answering any question and to producing any document, and the reference in subsection (3) to the transmission of evidence given by a person is to be construed accordingly. 35 Operation of other laws This Part is not intended to exclude or limit the operation of any law of the State that provides for the taking of evidence in the State for the purpose of a proceeding outside the State. 36 Rules of court (1) The power to make rules under the Supreme Court Act 1970 extends to the making of rules for or with respect to: (a) the manner in which an application under section 32 is to be made, and (b) the circumstances in which an order can be made under section 33, and (c) the manner in which any reference mentioned in section 34 (3) is to be made. (2) Any such rules may include such incidental, supplementary and consequential provisions as are necessary or convenient.
2. Part 4 of the Act is entitled "Taking of evidence for foreign and Australian Courts". It enacts the provisions of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters ("the Hague Convention") by the mechanism of translating the treaty provisions into domestic law. Implementation was done, in that respect, by State legislation: British American Tobacco Australia Services Ltd v Sharon Y Eubanks for the United States of America (2004) 60 NSWLR 483; [2004] NSWCA 158 ("BAT") at [16]-[17] (per Spigelman CJ, with whom Handley and Bryson JJA agreed) (see also Re Application of Computer Sciences Corporation under the Evidence on Commission Act 1995 (NSW) [2017] NSWSC 810 ("CSC No 1") at [29] (per Adams J)).
3. Spigelman CJ in BAT referred to the Second Reading speech for the legislation as follows (at [19]): [19] In the course of the Second Reading Speech for the Evidence (Evidence on Commission) Amendment Bill, the then Attorney General, Mr Dowd, said (New South Wales, Parliamentary Debates, Legislative Assembly, 30 August 1988, 784): "The bill is based on model uniform legislation agreed to by the Standing Committee of Attorneys-General. Adoption of the model legislation by all jurisdictions will facilitate the Commonwealth's ratification of the Hague convention on the taking of evidence abroad. The taking of evidence on commission is a procedure which allows testimony to be taken on oath in another jurisdiction, with the questions and answers being recorded in writing. The record of the testimony is then transmitted to the court in which the trial is being held and can be admitted in evidence." The Attorney went on to say (at 786): "Part 9, being proposed sections 77 to 82, provides machinery for the examination of witnesses in the State for the purpose of proceedings outside the State. The part is modelled on provisions proposed by the Commonwealth Secretariat, for adoption in Commonwealth jurisdictions, in connection with the Hague convention on the taking of evidence abroad. The Hague convention provides a procedure for the taking of evidence on commission in civil matters. The existing provisions of the Supreme Court rules which allow for the taking of evidence abroad or for the taking of evidence on commission for use in another country are insufficient to enable full compliance with the convention. Adoption of the model legislation by all States is a necessary prerequisite to allow the Commonwealth to accede to the Hague Convention. … Proposed section 79 of the bill empowers the Supreme Court to make orders pursuant to an application by a court or tribunal outside the State for the taking of evidence for use in proceedings before the requesting court. The taking of evidence includes: examination of witnesses, production of documents, inspection of property, taking of samples, medical examinations, blood testing, and generally any order in accordance with the powers of the Supreme Court to make an order in its own proceedings. Proposed section 80 preserves the privileges that a witness has in relation to the giving of evidence, whether the privilege is one arising in similar proceedings in the State or in the place where the requesting court exercises jurisdiction."
4. His Honour also referred to the origins of Pt 4 as follows (at [20]): [20] With minor verbal differences, the legislation now found in Pt 4 of the Act, which had its origins in the process identified by the Attorney, has followed the terminology of the legislation in the United Kingdom, the Evidence (Proceedings in Other Jurisdictions) Act 1975 (UK) ("the 1975 Act"). That Act was used as a model by the Commonwealth Secretariat and, again with minor variations, the draft legislation propounded by the Commonwealth Secretariat was adopted by the Standing Committee of Attorneys-General as uniform legislation in Australia. (See David McClean and Campbell McLachlan, The Hague Convention on the Taking of Evidence Abroad: Explanatory Documentation Prepared for Commonwealth Jurisdictions (1985) Commonwealth Secretariat, London esp 22-26.) All of the crucial words upon which the Claimant relies in the present case - particularly each of the references to "evidence" - are to be found in the UK Act, the Commonwealth Secretariat report and the uniform Australian scheme.
5. The jurisdiction of this Court under Pt 4 of the Act is conferred by s 32. Two relevant elements may be identified.
6. First, s 32(1) of the Act provides that Pt 4 of the Act will apply if an application is made to this Court for evidence to be obtained in NSW and the Court is satisfied that: 1. the application is made in pursuance of a request issued by a Court exercising jurisdiction in a place outside NSW (s 32(1)(a)); and 2. the evidence to which the application relates is to be obtained for the purposes of proceedings instituted before the requesting court (s 32(1)(b)).
7. Secondly, s 32(2) provides that Pt 4 of the Act will not apply in respect of proceedings relating to the commission of an offence or an alleged offence unless the requesting court is a court of a place in Australia or New Zealand. Mr Waldron contended that the present application made with respect to him falls outside the jurisdiction of the Court in consequence of that provision. I will return to that consideration.
8. Section 33(1) of the Act provides that, if an application is made under s 32, this Court may make an order making such provision for the obtaining of evidence in New South Wales as appears appropriate for the purpose of giving effect to the request, including the oral examination of witnesses (see s 33(3)). That provision confers a power upon the Court which extends to the court making an order requiring a person to take steps as the court may consider appropriate for that purpose.
9. Section 33(4) provides that any steps to be taken must be steps that can be required to be taken by way of obtaining evidence for the purposes of proceedings in this Court.
10. Section 34 of the Act provides safeguards as to the privilege to witnesses compelled to give evidence by virtue of an order under s 33 of the Act.

Operation of the Act

1. Having satisfied itself the requirements of s 32 are met, the Court has a discretion whether or not to make an order under s 33 of the Act: BAT at [14].
2. In BAT (at [41]), Spigelman CJ considered that the history of the Australian scheme indicates that the British case law should generally be followed in Australia and that where possible an international treaty of this character should be interpreted in an internationally uniform way. That passage from BAT is as follows: [41] The history of the Australian scheme indicates that the British case law should generally be followed in Australia. The general principle that an international treaty of this character should be interpreted, where possible, in an internationally uniform way (see Great China Metal Industries Co Limited v Malaysian International Shipping Corporation Berhad (1999) 196 CLR 161 at [38], [138]) is reinforced in Australia by the adoption, in terms, of the 1975 English statute which had already been construed in Rio Tinto v Westinghouse.
3. In determining whether to give effect to an application under section 32, by orders under s 33, Spigelman CJ in BAT considered that the Court should apply the factors summarised in Gredd v Busson [2003] EWHC 3001 ("Gredd") at [27].
4. The relevant factors as derived from Gredd are as follows: 1. Comity requires this court to view a letter of request issued by a foreign court for the purpose of civil proceedings before it benevolently. It is our pleasure and duty to assist those courts and the parties to them in arriving at a fair and just determination of their civil litigation where we can properly do so. 2. Nonetheless when an application for an order under the Act is disputed, the Court must determine whether the order sought is one which it can or should properly make. 3. The issue whether the order sought is for an illegitimate investigation rather than to obtain evidence to be adduced at trial is to be determined principally by reference to the terms of the letter of request and of the proposed order of this Court. However, the Court will consider the evidence before it as a whole. 4. Particularly pertinent will be the stage at which the order is sought and the extent to which the party seeking the order is able to demonstrate that the information sought is relevant to issues in the foreign proceedings in the sense of being capable of being adduced at trial in support of those issues. 5. The fact that testimony is sought as part of the discovery process in the United States proceedings is not of itself decisive. The fact that it is sought at the discovery stage is an indication that what is sought is discovery. However, the High Court has power to make an order for such testimony to be taken if it is limited to evidence to be adduced at trial. The court has a discretion to refuse to make an order at that stage even for such evidence to be taken on the grounds that it is premature, for example, and that the deposition of the proposed witness will be more efficiently and shortly taken, involving less inconvenience or intrusion into matters confidential to him or to other third parties, if it is taken at a later stage. 6. Statements in a letter of request to the effect that evidence is sought for use at trial are relevant but not conclusive. The letter of request must be viewed as a whole. 7. This Court will take into account anything in the evidence before it that indicates that the party that obtained the order for the letter of request appreciated and took into account the differences between United States and English (in this case, Australian) procedural rules. 8. Similarly, the Court will take into account evidence that the US judge appreciated and took into account those differences. In this connection, this Court appreciates that orders for the issue of letters of request are normally made by the US judge without any real scrutiny. The order is normally made in the terms sought by the applicant without any (or any significant) amendment and without the judge being informed of the significant differences between US procedure and those of the courts the recipient of the request. 9. The fact that the evidence sought is described in wide or general terms is not inconsistent with its being sought for the trial. There will be occasions where the subject matter of the testimony sought is so extensive as to preclude specification. However, where that is the case, the court in the exercise of its discretion may refuse to make an order on the basis that it would be oppressive to the witness to require him to prepare himself to give evidence and to require him to give evidence without identification of the matters to be addressed. 10. The Court will take into account any safeguards or restrictions incorporated in the terms of the proposed order. However, the order made by this Court cannot depart substantially from the terms of the Letters of Request. The requirement of the statute is that the order of the court give effect to the letter of request. The limitation on the power of amendment of the terms of the deposition sought by the letter of request was referred to by Lord Fraser in the Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547 at 644-645 and in turn by Sir Richard Scott VC in First American Corporation v Sheikh Zayed Al-Nahyan [1999] 1 WLR 1154 ("First American") at 1169. 11. Generally, an order may be refused or set aside on the grounds that would lead this Court to set aside a witness summons - oppression being one of those grounds. 12. This Court will not, in general, seek to determine whether evidence sought here will be admissible under the law of the foreign court. However, doubts as to admissibility may be taken into account. Issues of relevance will be addressed by this Court, notwithstanding that relevance and admissibility may raise identical issues. An example of an enquiry into relevance by the English court is to be found at [14] of the judgment of the Court of Appeal in the Genira Trade & Finance Inc v CS First Boston and Standard Bank (London) Limited [2001] EWCA Civ 1733 and First American at 1165, in which the Vice-Chancellor said: In my opinion, therefore, an English court must look at the issue of the relevance of the requested testimony, if it is raised, in broad terms, leaving to the foreign court, in all but the clearest cases, the decision as to whether particular answers, or answers on particular topics, would constitute relevant admissible evidence. 1. In determining whether an order offends the statutory prohibition in relation to discovery of documents, the court must address the terms of the order rather than the claimed intentions of the party seeking it. An order requiring the deponent to say whether he has any documents relevant to the foreign proceedings offends against "section 2(4)(a)". An order made requiring him to say whether he has had any communication relevant to the foreign proceedings is similarly illegitimate since "communication" includes a documentary communication and the order would require the deponent to state whether or not he has or had such a document. Put otherwise, such an order would circumvent the statutory prohibition and is not to be made for that reason. 2. Similar principles must apply where what is sought is a deposition without any written documents. The person conducting the examination of the witness, the witness himself, those representing him and those representing the parties to the foreign litigation must be able to ascertain the limits of proper questioning of the witness from the terms of the order itself.
5. Letters of request should be given effect to the fullest extent possible: Re Westinghouse Electric Corporation Uranium Contract Litigation [1978] AC 547 at 612 and 654; Re Asbestos Insurance Coverage Cases [1985] All ER 716 at 719; Pickles v Gratzon (2002) 55 NSWLR 533 at [50] and Re Hague Convention [2008] SASC 51 at [13].

Section 32(1) of the Act

1. In my view, having regard to the foregoing discussion, the provisions of s 32(1) of the Act are satisfied in this case for the following reasons: 1. The SEC's application is made in pursuance of Letters of Request issued by or on behalf of a court exercising jurisdiction in a place outside New South Wales: s 32(1)(a) of the Act. The requesting court is defined in s 31 as "a court or tribunal by or on whose behalf a request is issued, as referred to in s 32". The Letters of Request were issued by the US Court (see also first Miller affidavit at para 51). Further, the SEC's application is made in pursuance of the Letters of Request (see summons at prayer 1). 2. The evidence to which the application relates is to be obtained for the purposes of proceedings which have been instituted before the requesting court: s 32(1)(b) of the Act. The evidence reveals the proceedings have been commenced. Each of the Letters of Request seeking examination state the purpose of the evidence sought including the context in which the Witnesses have knowledge and involvement in the matters the subject of the SEC complaint in respect of each witness (see, for example, the description of such material in the case of Mr Waldron at [79]-[81] and [103]-[104] of this judgment).

The Submissions of the SEC

1. The SEC made written and oral submissions, which are reflected below.

Relevant authorities

1. In BAT, the Court of Appeal refused to grant leave to appeal the decision of Bell J refusing to set aside orders made by James J requiring a witness to be examined pursuant to s 33 of the Act, giving effect to a letter of request issued by the United States District Court for the District of Columbia ("the Columbia Court").
2. The proceedings before the Columbia Court were brought by the United States of America against a number of tobacco companies arising out of alleged violations of United States racketeering laws: Application of Cannar Re Eubanks [2003] NSWSC 802 at [114] and [117].
3. In Sykes v Richardson (2007) 70 NSWLR 66; [2007] NSWSC 418 ("Sykes") (per Hidden J) this Court considered whether to make an order under s 33 of the Act, for the examination of a witness for the purpose of proceedings before the United States District Court for the Western District of Wisconsin ("the Wisconsin proceedings").
4. The Wisconsin proceedings concerned "a civil action arising out of the alleged involvement of [a named company] in a conspiracy to manipulate the copper futures market from 1993 through 1996 in violation of the Sherman Antitrust Act": Sykes at [4].
5. That conspiracy was said to be a violation of s 1 of the Sherman Antitrust Act of 1890, 15 USC ss 1-38 ("Sherman Antitrust Act"). Contravention of that section amounted to a felony, carrying a substantial term of imprisonment and an equally substantial fine: Sykes at [4]. The plaintiff also sought treble damages: Sykes at [14].
6. The Court found that the Wisconsin proceedings were civil, not criminal. At [10] Hidden J considered that: [10] Clearly, in their form the proceedings are civil, not criminal. The plaintiffs are private parties, who do not represent the State and could not institute a prosecution under the Sherman Antitrust Act (US). The civil standard of proof applies. The plaintiffs seek damages and, obviously, do not and could not seek the imposition of fines or imprisonment. In short, success by the plaintiffs could not establish the commission of an offence, so as to expose anyone to criminal sanction, because the case would be conducted without the standard of proof and rules of procedure characteristic of criminal proceedings.
7. His Honour noted at [22], that the Wisconsin proceedings were not "proceedings relating to the commission of an offence".
8. His Honour subsequently concluded that the Wisconsin proceedings did not relate to the commission of an "offence" within the meaning of s 32(2) of the Act and further the examination of the applicant was "not a step, direct or indirect, in the enforcement of a penal law of the United States": Sykes at [25].
9. It is convenient at this juncture to extract passages from the judgment of Hidden J (at [21]-[23]): [21] Despite the punitive nature of the treble damages sought, the Wisconsin proceedings are clearly not public proceedings of that kind. In any event, I consider that to assist those proceedings by obtaining the evidence of the applicant falls short of a step, even indirect, in the enforcement of a United States penal law. I think that there is force in the argument of counsel for the respondent that the principle could come into play only if the plaintiffs in those proceedings, having obtained judgment, had occasion to seek the enforcement of the judgment in this country. In that event, an Australian court might decline to enforce so much of the judgment as was found to be penal rather than compensatory. Dr Bell SC, for the respondent, referred me to a decision of Bergin J in Schnabel & Ors v Lui & Ors [2002] NSWSC 15, in which her Honour took such a course: see the judgment at [161]ff. [22] Let me return, then, to the argument concerning the interpretation of s32(2). Counsel for the respondent submit that the expression "proceedings relating to the commission of an offence…" means criminal proceedings, that is, proceedings having as their focus the determination whether an offence has been proved and, if so, what the appropriate punishment (if any) should be. Clearly, the Wisconsin proceedings are not of that kind. I have not found this matter easy to resolve, and I acknowledge the force of the arguments of counsel for the applicant. However, I find the submission of counsel for the respondent persuasive. [23] Adopting the words of Austin J to which I have referred, the terms of s32(2) must take their colour from their context. Presumably, the fact that the Convention is confined to civil and commercial matters has its rationale in the principle expounded in Huntington v Attrill. In my view, it is that same principle, recognising the local nature of criminal proceedings, which informs the limitation in the subsection. It is for that reason that requests from courts within Australia or in New Zealand are excepted. Provision for requests from New Zealand in respect of criminal matters is made in recognition of the close ties between the two countries and the common lineage of their criminal justice systems.
10. In CSC No 1, this Court considered whether to make an order under s 33 of Act, for the examination of four witnesses and for the purpose of proceedings before the Court of Chancery of the State of Delaware in the United States of America ("the Delaware Court"). The case concerned the same underlying facts as the present proceedings and were brought by CSC against Mr Pulier (and TechAdvisors LLC) for the recovery of US$98 million. Relevantly, as in these proceedings, CSC alleged that Mr Pulier paid bribes to Mr Hunter and Mr Waldron to obtain the McAfee and Pivotal contracts. Mr Pulier had stated claims of fraud and other misconduct against CSC: CSC No 1 at [9].
11. The Court found that the Delaware Court proceedings did not relate to the commission of an offence, and in doing so held (at [51]): [51] …[A]lthough the conduct of the subject matter of the proceedings has led to a number of related criminal and regulatory actions, that fact alone does not mean that the proceedings are anything other than civil proceedings. The civil standard of proof applies and the success of the hearing will not expose the defendants to a fine or custodial penalty. I am satisfied that the proceedings in the Delaware Court do not relate to an offence.
12. In Application of Computer Sciences Corporation under the Evidence Act 1995 (NSW) [2019] NSWSC 777 ("CSC No 2"), this Court again considered whether to make an order under s 33 of Act, for the examination of Mr Waldron for the purpose of the Delaware Court proceedings. Again, the Court found that the Delaware Court proceedings did not relate, at least not in any direct sense, to the commission of an offence, although associated matters have involved such criminal proceedings in the United States and Australia: CSC No 2 at [13].
13. In CSC No 2, his Honour Black J considered in relation to Mr Waldron that (at [13]): I would have been satisfied that the requirements of ss 32 and 33 of the Evidence on Commission Act were satisfied in respect of the examination of Mr Waldron, and that it would be a proper exercise of comity to make the orders sought, in order to assist the Delaware Court of Chancery in the performance of its functions, subject to the further issues noted below.

Any "offence" the subject of the US proceedings is not an offence against or arising under an Australian law

1. Section 3 of the Act provides that expressions used in it which are defined in the Evidence Act 1995 (NSW) have the meanings set out in that Act. In Pt 1 of the dictionary to the Evidence Act, "offence" is defined as "an offence against or arising under an Australian law".
2. By application of that definition, the term "offence" in s 32(2) of the Act means "an offence against or arising under an Australian law".
3. Even if the Court was to conclude that the SEC proceedings were related to the commission of "an offence or an alleged offence", (which, with respect, is not a finding open to be made by this Court) on a plain reading of the Act, s 32(2) does not bear upon the present proceedings. That is, the only offences or contraventions of law to which the US proceedings could relate, are contraventions of American laws, not Australian criminal law.

Any "offence" to which the US proceedings relate is not criminal, and the Act only "carves out" criminal offences

1. The SEC does not seek orders to permit the USAO to examine the Witnesses.
2. In the US proceedings, the SEC must meet a burden of showing a violation of the Securities Act and/or Exchange Act happened by a "preponderance of the evidence". This standard is less than the criminal standard of "beyond a reasonable doubt". It is a civil standard of proof.
3. In BAT, the Court did not consider the issue as to whether the proceedings related to the commission of an "offence" for the purposes of the Act. However, the Court did make orders for the examination of the relevant witness in circumstances where the plaintiff in the foreign proceedings was the State and the relief sought included a judicial order preventing and restraining certain unlawful conduct.
4. In CSC No 1, that the civil standard of proof applied was an important factor that the Court considered when determining that the Delaware Court proceedings did not relate to the commission of an offence for the purposes of the Act: at [51].
5. The US proceedings constitute a civil proceeding, not a criminal proceeding, because: 1. the SEC cannot institute criminal proceedings; 2. a civil standard of proof applies to the US proceedings; 3. the US proceedings cannot result in a custodial sentence of Mr Pulier; 4. conversely, criminal proceedings were, in fact, instigated against Mr Pulier by the USAO, a separate, US government authority for the same underlying facts. The USAO's criminal proceedings were required to proven "beyond reasonable doubt" and could have resulted in a custodial sentence or criminal sanction of Mr Pulier. These criminal proceedings have since been dismissed with prejudice and cannot be re-instigated.
6. As in Sykes, success by the plaintiff, the SEC, could not establish the commission of an offence, so as to expose anyone to criminal sanction, because the case would be conducted without the standard of proof and rules of procedure characteristic of criminal proceedings: Sykes at [10].
7. The expression "proceedings relating to the commission of an offence" in s 32(2) of the Act means criminal proceedings: Sykes at [22]. The terms of s 32(2) must take their colour from their context. The section 32(2) "carve out" is therefore intended to relate to criminal proceedings. Such an approach accords with the policy of the both the Hague Convention and the Act, which encourages international assistance in matters which are not criminal: Sykes at [22]-[24].
8. This is consistent with the criminal/civil distinction taken in the Second Reading speech to the Evidence (Amendment) Act 1990 (Vic), the Victorian equivalent to the NSW Act (and identical to that Act) which amended the Evidence (Miscellaneous Provisions) Act 1958 (Vic). The Hon BW Mier (Minister of Consumer Affairs), stated: In criminal cases, Victorian courts may take evidence under the Bill only upon request by an interstate or New Zealand court. Evidence for use in courts of other countries may be taken in Victoria by order of the Commonwealth Attorney-General under the Commonwealth extradition Acts. The Bill, however, provides a special fast-track procedure for New Zealand courts, in recognition of the special relationship between Australia and New Zealand. In civil cases the Bill will allow a foreign or interstate court to make a request to the Supreme Court in Victoria.

The fact that the SEC may be seeking civil penalty remedies does not mean that the US proceedings relate to the commission of an "offence" for the purposes of the Act

1. The SEC seeks civil penalties as against Mr Pulier. These are akin to civil penalty orders sought by the Australian Competition and Consumer Commission and Australian Securities and Investments Commission in Australia.
2. The fact that the SEC is seeking civil penalty remedies does not mean that the US proceedings relate to the commission of an "offence" for the purposes of the Act.
3. In BAT, the United States of America sought damages and injunctive declaratory relief for alleged violations of racketeering laws. Despite this, the Court did not conclude that the relevant foreign proceedings related to the commission of an offence for the purposes of the Act.
4. Further, in Sykes at [14], this Court accepted that the plaintiff, by seeking treble damages, was seeking damages of a kind that were penal rather than simply compensatory, and cited John Robinson and Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65. Despite coming to this conclusion, the Court did not conclude that the relevant foreign proceedings related to the commission of an offence for the purposes of the Act: Sykes at [21]
5. Consistent with these previous authorities, the fact that civil penalty remedies are sought by the SEC in the US proceedings is not a decisive factor in determining whether or not the US proceedings relates to the commission of an "offence" for the purposes of the Act.

Submissions for Mr Waldron

1. Mr Waldron submitted that the provisions of s 32(2) were engaged with respect to the present application.
2. Two primary submissions were advanced in that respect.
3. First, it was contended in written submissions that the request was for assistance in a criminal matter. However, it was later submitted that the US proceedings related to the commission of a crime.
4. Secondly, and accordingly, it was submitted the request was caught by the provisions of s 32(2) as, in any event, the expression "proceedings relating to the commission of an offence or an alleged offence" ("the expression") has a wider meaning that "criminal proceedings" and the application falls within that wide meaning.

Scope of the Expression

1. The definition of "proceedings" in s 31 does not apply to that word when used in s 32(2) such that the word proceeding receives its means from the words following in the subsection. Those words are equivalent to those found in the definition of "proceedings", para (b) in s 31. In particular, the definition of "proceedings" in s 31, para (b) is not narrower than the expression in s 32(2). Whilst the words "in or before a count" appear in s 31(b), s 32(1)(b) concerns proceedings which have been instituted before a requesting court.
2. The proceedings referred to in para (b) of the definition are not necessarily disjunctive of that found in (a). Civil proceedings might relate to the commission of an offence. The definition in para (b) concerns matters have a punitive character. Civil penalty proceedings may in this day and age, be part of the enforcement of the criminal law. An example is the Proceeds of Crime Act 2002 (Cth). The distinction between civil and criminal is not binary.
3. If the Court were to accept civil proceedings are caught by the carve out in s 32(2), then the Court would not have jurisdiction in the present case.
4. The expression has a wider meaning because: 1. The expression "relating to the commission of an offence" are broad enough to encompass the proceedings brought by the applicant in the United States. The words "relate to" are "extremely wide": Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 ("Project Blue Sky") at [87] (per McHugh, Gummow, Kirby and Hayne JJ), quoting with approval Tooheys Ltd v Commissioner of Stamp Duties (1961) 105 CLR 602 at 620 (per Taylor J). Accordingly, in that context, the Court would not conclude that the expression is intended to apply only to criminal proceedings in the traditional sense. 2. Section 32(2) does not refer to criminal proceedings. This is significant, since the expression "criminal proceedings" is used elsewhere in the legislation, see ss 11 and 25. In those provisions, the legislation acknowledges that civil proceedings may relate to criminal proceedings. Reference was made, in that respect, to the definition of "related civil proceedings" in ss 11 and 25. Both s 11 and s 25 treat the admissibility of the relevant evidence in related civil proceedings in a similar fashion to the admissibility of the evidence in criminal proceedings. 3. In the absence of some defined meaning of the expression "civil or commercial matters", resort to the text of the Hague Convention cannot assist in interpreting the meaning of s 32(2) of the Act. The limited meaning given to the word "proceeding" in s 32(2) confirms that the Hague Convention is not re-enacted in Pt 4 of the Act. The Hague Convention does not contain reference to proceedings in relation to the commission of an offence. In that respect it was submitted: 1. Art 1 provides (emphasis added): "In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the provisions of the law of the State, request the competent authority of another Contracting State, by means of a Letter of Request, to obtain evidence, or to perform some other judicial act." Use of the expression "civil or commercial matters" does little to answer the question of whether the expression "proceedings relating to the commission of an offence or an alleged offence", includes quasi-criminal proceedings, such as those brought against Mr Pulier by the applicant. 2. In this context, it has been stated, "By its terms, the Convention is only applicable to cases 'in civil or commercial matters.' No agreement exists as to the meaning of this phrase with nearly every signatory nation interpreting it in its own way": G A Magnarini, "Service of Process Abroad Under the Hague Convention" (1988) 71 Marquette Law Review 649 at 666. Similarly, in in Re the State of Norway (Nos 1 and 2) [1990] 1 AC 723 at 803, when considering the meaning of the same expression in the Evidence (Proceedings in other Jurisdictions) Act 1975 (UK), which implemented the Hague Convention, Lord Goff of Chieveley stated: However, having ascertained that previous conventions in which this phrase was used (including the bilateral conventions to which the United Kingdom was party) had worked effectively without any need for specific definition of the phrase, and having regard to the historic policy of the Hague Conference to include neither a definition nor a rule of conflicts to resolve a dispute between the states on such an issue, it was decided that article 1 should follow the historic pattern without any definition of "civil or commercial matters." In these circumstances, it must in any event be very difficult to identify, by reference to civil law systems, any "internationally acceptable definition" of the expression "civil or commercial matters." Even if it were appropriate to define the expression in the Act of 1975 with reference to the text of the 1970 Hague Convention, no internationally acceptable definition could be derived from that source…

Relevant authorities

1. The judgments in Sykes, CSC No 1 and CSC No 2 are distinguishable from the present matter because: 1. Each of the proceedings concerned proceedings brought by private parties against another private party. Here the proceedings are brought by the State itself. 2. Even though "treble damages" were sought in Sykes for violations of the Sherman Antitrust Act, which Hidden J considered did not fall within the "carve-out" in s 32(2), here the State is seeking to recover penalties and those penalties may be recovered through enforcement action by the State. 3. Adams J in CSC No 1 did not have the benefit of argument on the point.
2. The SEC's reliance upon a Second Reading speech in Victoria is not available under the canons of statutory construction.

Meaning of "Offence"

1. In response to the submission of the SEC as to the meaning of the expression offence, Mr Waldron submitted: 1. The SEC submission ignores s 6 of the Interpretation Act 1987 (NSW), which provides: "Definitions that occur in an Act or instrument apply to the construction of the Act or instrument except in so far as the context or subject-matter otherwise indicates or requires." It is plain that the context, in which the word "offence" is used, requires a broader construction. 2. It is difficult to conceive of a situation in which proceedings relating to the commission of an offence against, or arising under, an Australian law might be pending in a New Zealand court, let alone elsewhere in the world. 3. Accordingly, it is submitted that the expression "offence" is not limited to offences against Australian law. A similar conclusion was reached by Hidden J in Sykes at [9], although his Honour determined it was finally unnecessary to determine the issue. 4. There is no ambiguity in the meaning of the expression "offence", and accordingly there is no need to resort to any presumption about the construction of the legislation, in conformity with the Commonwealth's treaty obligations, compare Dietrich v The Queen (1992) 177 CLR 292.

Application to the US proceedings

1. The US proceedings are caught by s 32(2) because: 1. The applicant is a State actor who seeks to establish Mr Pulier committed "criminal offences" albeit to a civil standard. 2. The SEC is vindicating a public interest, in the light of alleged breaches of United States law, with a view to obtaining civil penalties against Mr. Pulier, which will flow to the benefit of the United States. 3. In that respect, the SEC seeks relief in the US proceedings in the nature of civil penalties. 4. As to the latter consideration: 1. 15 USC s 77t(a) gives the SEC powers to investigate breaches of securities law. 2. Under such an investigation the SEC has various powers such as those conferred under 15 USC s 77t(b) where it appears to the SEC that the person has, inter alia, engaged in acts in violation of the Securities Act. The powers are expanded under 15 USC s 78u(a)(1) and by coercive powers (15 USC s 78u(b)) including imprisonment (15 USC s 78u(c)). 3. Remedies include the civil penalties (15 USC s 77t(d)(1)). The SEC may seek monetary penalties under 15 USC s 78u(d)(3). 4. A further remedy is in the nature of a banning order (15 USC s 78u(3)(c)(i) and (ii)). 5. A civil penalty may be enforced by the United States (15 USC s 77t(d)(3)(a) and (b) (see also 15 USC s 78u(3)(c)(i) and (ii)). 6. Breaches of the provisions of the Securities Act in which 15 USC s 77t applies are themselves criminal offences (see 15 USC s 77x). 7. The Exchange Act confers power to seek injunctive relief: 15 USC s 78u(d)(1).
2. When comparison is given to the indictment it is really criminal conduct which is alleged against Mr Pulier in both proceedings.
3. Proceedings for recovery of a pecuniary penalty are not a prerequisite for the recovery of a civil penalty and may, in any event, be of a civil nature and relate to the commission of an offence.

CONSIDERATION: SECTION 32(2)

1. The applicant seeks orders under s 32 of the Act, giving effect to Letters of Request issued by the US Court; the effect of which would be for the issuance of a subpoena directing the Witnesses to attend at a place to give evidence for the purposes of the US proceedings.
2. The term "proceedings" is defined in s 31 of the Act, as Hidden J described the definition in Sykes (at [17]), "exhaustively, so as to include 'any civil or commercial matter' and proceedings 'in relation to the commission of an offence or alleged offence'". As his Honour remarked at [16], the provisions of Pt 4 stand in contrast to English legislation passed pursuant to the Hague Convention which limit the scope of the Evidence (Proceedings in Other Jurisdictions) Act to the taking of evidence "for the purposes of civil proceedings" (civil proceedings having been defined as "proceedings in any civil or commercial matter" in the requesting court).
3. Section 33(1) is expressed to confer a power on this Court with respect to examination only insofar as the application is "made under s 32". By s 32(2), the jurisdiction of the Court is constrained by an express limitation of the application of Pt 4 of the Act - Hidden J in Sykes, adopted the language of senior counsel in the matter, which described the provision as a "carve-out". It does not necessarily follow, however, that the use of the term "proceedings" in s 32(2) imports the definition in s 31 of the Act.
4. As McHugh J observed in Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 at [103], "the functions of a definition is not to enact substantive law" (see Gibb v Federal Commission of Taxation (1966) 118 CLR 628 at 635; [1966] HCA 74). Statutory definitions are subject to qualification where a definition is used in a context which renders the definition inapplicable (see s 5(2) of the Interpretation Act and Council of the Law Society of New South Wales v Bouzanis (2017) NSWLR 488; [2017] NSWCA 330 at [45] (per Basten JA)), such that the definition may be excluded by implication: Tovir Investments Pty Ltd v Waverly Council [2014] NSWCA 379 ("Tovir") at [17] (per Basten JA), when a contrary statutory intention is apparent: Tjungarrayi v Western Australia (2018) 266 ALR 603; [2019] HCA 12 at [89] (per Nettle J). There is no simple formula for determining what is a contrary intention: Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104 at 108 (per Mahoney JA). However, the ease or difficulty of fitting a definition into a particular operative provision may be a primary basis for deciding whether a definition should be excluded by implication; although "one is likely to require some understanding of the meaning of the definition itself": Tovir at [17].
5. With those principles in mind, I accept the submissions of senior counsel for Mr Pulier that the "generic definition of" proceedings in s 31 should not be applied to the concept in s 32(2), such that the definition is excluded by implication, essentially because of the difficulty of fitting the definition into the provision.
6. The primary bases for that submission may also be accepted: 1. The introduction of the second limb of the definition in s 31(b) into s 32(2) is tautological. 2. In that respect, I do not consider the phrased "relating to" in s 32(2) has any different meaning to the expression "in relation to" in s 31(b) (see D Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) at [12.7]). Both are intended as having a general and wide meaning. In Project Blue Sky, their Honours stated that the words "relate to" are "extremely wide" (at [87]), although opined that the words required the existence of a connection or association and the meaning will be determined by the "statutory context and purpose" (see Oceanic v Chief Commissioner of Stamp Duties (1999) 168 ALR 211; [1999] NSWCA 416 at [56] (per Fitzgerald JA). 3. Further, I accept the submissions of Mr Lange that the definition of proceedings in s 31(b) is not narrower than the cognate concept in s 32(2) because s 31(b) refers to proceedings "in or before a court", as s 32(1)(b) concerns proceedings which have been instituted before a requesting court. 4. The expression "proceedings" in s 32(2) contains its own qualifier, namely, "unless the requesting court is a court of a place in Australia or New Zealand". 5. The incorporation of para (a) of the definition in s 31 would be inconsistent with the mischief the provision of s 32(2) is intended to address, namely, the enforcement of the criminal laws of a foreign country. That conclusion will require elaboration to which I shall now turn.
7. In Sykes, Hidden J identified the long standing principle that domestic courts will not entertain an action for enforcement, either directly or indirectly of a "penal, revenue or other public law" of a foreign state at [18] (see Attorney-General (United Kingdom) v Heinemann Publishes Pty Ltd (1988) 165 CLR 30 at 40-41).
8. His Honour was concerned, in that respect, with the provision for treble damages in the Wisconsin proceedings, which his Honour described as "penal, rather than simply compensatory" (Sykes at [14]) in circumstances where it was argued that the taking of evidence for the applicant would amount to "a step, albeit indirect, in the enforcement of a penal law of the United States" (Sykes at [19]).
9. It is true, as submitted by Mr Waldron, that part of his Honour's rejection of that conclusion was that the Wisconsin proceedings were not public proceedings of the kind described in Hunington v Attrill [1893] AC 150 ("Hunington") (at 156) (although as Keane J observed in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 ("Fair Work Building") at [93], the fact a plaintiff seeking a civil penalty is an agent of the State does not alter the essential nature of the proceedings as civil in nature). However, that submission fails to give recognition to the fact that his Honour's conclusion that the expression "proceedings relates to the commission of an offence" (at [22]) (where his Honour concluded that the exclusion meant "criminal proceedings") revolved significantly around his conclusion at [23], namely, in summary: 1. The terms of s 32(2) must take their meaning from their context. 2. The fact that the Hague Convention is confined to civil and commercial matters has its rationale (presumably) in the principle in Huntington. 3. That same principle is recognised is the local nature of criminal proceedings which informs the limitation of s 32(2) of the Act. 4. It is for that reason that requests from courts within Australia or in New Zealand are excepted. Provision for requests from New Zealand in respect of criminal matters is made in recognition of the close ties between the two countries and the common lineage of their criminal justice systems.
10. Hidden J concluded that the expression "proceedings relating to the commission of an offence" meant "criminal proceedings" that is "proceedings having as their focus the determination whether an offence has been proved and, if so, what the appropriate punishment (if any) should be".
11. I agree, with respect, with those conclusions of Hidden J. There is, in my view, no relevant distinction between the subject matter of the Wisconsin proceedings for treble damages and civil penalties sought in the US proceedings. Further, as to Huntington, it may be noted that the application presently before the Court seeks orders which are confined to the seeking of evidence for use at trial in the US proceedings.
12. Further, I agree with the submission of Mr D Tynan, who appeared for the SEC, that the treatment of the "carve-out" provision, insofar as it refers to the commission of an offence, as meaning criminal proceedings (as defined by Hidden J), accords with the policy of both the Hague Convention and the Act (the definition in s 31 itself recognises a distinction between civil and commercial matters in s 31(a) and the commission of an offence), which encourages international assistance in matters which are not criminal.
13. Further, to the extent that use of the terms "offence" or "commission of an offence" is ambiguous, in construing domestic legislation that is ambiguous (in that it is capable of being given a meaning which either is consistent with or is in conflict with a treaty obligation), there is a presumption that Parliament intended to legislate in conformity with the treaty obligation: Dietrich v The Queen at 306.
14. The Hague Convention states, at Article 1: In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the provisions of the law of that State, request the competent authority of another Contracting State, by means of a Letter of Request, to obtain evidence, or to perform some other judicial act.
15. On that basis the term "offence" should therefore be read not to include any civil or commercial "offences" and instead be taken to mean only criminal "offences".
16. I interpose here to note the SEC also contended that any offence the subject of the US proceedings was not an offence against or arising out of an Australian Law; relying in that respect, as earlier mentioned upon the definition of offence in Pt 1 of the Evidence Act and the Act (see s 3).
17. I reject that submission, in substance, upon the bases advanced by Mr Waldron as summarised at [172(1)]-[172(3)].
18. The distinction between criminal proceedings and civil penalty proceedings was dealt with in Fair Work Building in the judgment of French CJ, Kiefel, Bell, Nettle and Gordon JJ as follows (at [51]-[58]): [51] Contrary to the Full Court's reasoning, there are basic differences between a criminal prosecution and civil penalty proceedings and it is they that provide the "principled basis" for excluding the application of Barbaro from civil penalty proceedings. [52] A criminal prosecution is an accusatorial proceeding which is governed by the fundamental principle that the burden lies in all things upon the Crown to establish the guilt of the accused beyond reasonable doubt and by the companion rule that the accused cannot be required to assist in proof of the offence charged. [53] Civil penalty proceedings are civil proceedings and therefore an adversarial contest in which the issues and scope of possible relief are largely framed and limited as the parties may choose, the standard of proof is upon the balance of probabilities and the respondent is denied most of the procedural protections of an accused in criminal proceedings. [54] Granted, both kinds of proceeding are or may be instituted by an agent of the state in order to establish a contravention of the general law and in order to obtain the imposition of an appropriate penalty. But a criminal prosecution is aimed at securing, and may result in, a criminal conviction. By contrast, a civil penalty proceeding is precisely calculated to avoid the notion of criminality as such. [55] No less importantly, whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance: "Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act]. ... The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act." [56] Moreover, in criminal proceedings the imposition of punishment is a uniquely judicial exercise of intuitive or instinctive synthesis of the sentencing facts as found by the sentencing judge (consistently with the jury's verdict) and the judge's relative weighting and application of relevant sentencing considerations in accordance with established sentencing principle. There is no room in an exercise of that nature for the judge to take account of the Crown's opinion as to an appropriate length of sentence. For the purposes of imposing a criminal sentence, the question is what the judge considers to be the appropriate sentence. Nor can there be any question of a sentencing judge being persuaded by the Crown's opinion as to the range of sentences open to be imposed. As was observed in Barbaro, apart from the conceptually indeterminate boundaries of the available range of sentences and systemic problems which would likely result from a criminal sentencing judge being seen to be influenced by the Crown's opinion as to the available range of sentences, the Crown's opinion would in all probability be informed by an assessment of the facts and relative weighting of pertinent sentencing considerations different from the judge's assessment. That is why it was held in Barbaro that it is inconsistent with the nature of criminal sentencing proceedings for a sentencing judge to receive a submission from the Crown as to the appropriate sentence or even as to the available range of sentences. [57] In contrast, in civil proceedings there is generally very considerable scope for the parties to agree on the facts and upon consequences. There is also very considerable scope for them to agree upon the appropriate remedy and for the court to be persuaded that it is an appropriate remedy. Accordingly, settlements of civil proceedings are commonplace and orders by consent for the payment of damages and other relief are unremarkable. So are court-approved compromises of proceedings on behalf of infants and persons otherwise lacking capacity, court-approved custody and property settlements, court-approved compromises in group proceedings and court-approved schemes of arrangement. More generally, it is entirely consistent with the nature of civil proceedings for a court to make orders by consent and to approve a compromise of proceedings on terms proposed by the parties, provided the court is persuaded that what is proposed is appropriate. [58] Possibly, there are exceptions to the general rule. There is, however, no reason in principle or practice why civil penalty proceedings should be treated as an exception. Subject to the court being sufficiently persuaded of the accuracy of the parties' agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and, for the reasons identified in Allied Mills, highly desirable in practice for the court to accept the parties' proposal and therefore impose the proposed penalty. To do so is no different in principle or practice from approving an infant's compromise, a custody or property compromise, a group proceeding settlement or a scheme of arrangement. [Footnotes omitted.]
19. That distinction is not overcome, as Mr Lange suggested, because the "public interest" nature of the US proceedings related to the commission of an offence. That submission, so far as it concerns civil penalty proceedings, should be rejected, particularly in the light of the observations of the plurality in Fair Work Building (at [59]): [59] It is true that there is a public interest in the imposition of civil penalties as opposed to the purely private interests which are in issue in many civil proceedings. But civil penalty proceedings are by no means the only civil proceedings in which the public interest is involved. Custody disputes involve the public interest. So do group proceedings and schemes of arrangement. So also do taxation, customs and social security appeals, and detention orders; and examples can be multiplied. Yet in each of those cases, it is wholly unexceptionable for a court to accept an agreed submission as to the nature and quantum of relief, provided the court is persuaded that it is an appropriate remedy. Once it is understood that civil penalties are not retributive, but like most other civil remedies essentially deterrent or compensatory and therefore protective, there is nothing odd or exceptionable about a court approving an agreed settlement of a civil proceeding which involves the public interest; provided of course that the court is persuaded that the settlement is appropriate.
20. It is true that the legislature did not use the expression "criminal proceedings" in s 32(2); an expression which is found elsewhere in the Act in ss 11 and 25. However, that does not, in my view, alter the above construction of the provision, to which I prefer, for three reasons: 1. The "carve-out" by the legislature was enacted in circumstances where the provision could operate in the context of the Hague Convention being adopted by a wide range of nations having both different criminal justice or penal systems (see CSC No 1 at [39] and X7 v Australian Crime Commission (2013) 248 CLR 92 ("X7") at [98]) and practices and proceedings relating to criminal proceedings (see BAT at [70]). The language of the provision needed to be wide enough to encompass those variations in criminal law or justice systems. 2. This also explains the express exclusion of Australian and New Zealand criminal proceedings from s 32(2). The significance of this exclusion is explained by the then Chief Justice in BAT at [75] (wherein his Honour refers to "criminal proceedings" as the "excepted" area) as follows: [75] Similar considerations apply to the taking of evidence under Pt 4 of the Act for other Australian courts. When implementing the Hague Convention the uniform scheme used in Australia adopted the same terminology for the scheme applicable between Australian courts and with those of New Zealand. Indeed, the scheme goes further in this respect as s32(2) enables such Letters of Request made by an Australian or New Zealand court to extend to criminal proceedings. In such cases differences about principles of admissibility and exclusion may not be as wide ranging as they are with respect to foreign jurisdictions. Nevertheless, they do exist, notably in Australia between those States that have adopted the Evidence Act and those which have not. Again it seems to be desirable that questions of admissibility be left to the jurisdiction in which the proceedings are conducted. 1. The reference to criminal proceedings in ss 11 and 25 does not illustrate a contrary intention by the legislature. Part 2 of the Act concerns a different subject matter, namely, the examination of witnesses abroad for the purpose of gathering evidence for those proceedings. It is apparent the expression is limited to an Australian context. Section 11(1)(a) provides that if, under s 9, a superior court makes an order in relation to committed proceedings it may include in the order a direction that evidence taken outside Australia under the order may be tendered in criminal proceedings that result from the committed proceedings (in the State).
21. The foregoing construction of s 32(2) nonetheless leaves open the question as to whether the US proceedings are proceedings relating to the commission of an offence. Senior counsel for Mr Pulier submitted that the connector "relating to" is not as "tight" as presented by the SEC "and may incorporate civil proceedings", so far as the proceedings seek to enforce a penal judgment in those proceedings. Reliance, in that respect, was placed upon the definition of a criminal matter in the Mutual Assistance in Criminal Matters Act 1987 (Cth) ("MACM Act").
22. I do not consider the MACM Act assists Ms Younan SC in this respect as the definition of criminal matters in that Act concerns the imposition of a pecuniary penalty for an offence. Further, the MACM Act lacks application in the present context for the reasons provided below.
23. In any event, Mr Younan SC did not contend that more expansive construction of the operation s 32(2) would, on the evidence and submissions in this matter, alter Mr Pulier's submission that the carve-out in s 32(2) did not apply to the present application given the nature of the US proceedings.
24. That submission may be accepted as may the further submissions by Mr Pulier that the characterisation of the US proceedings as proceedings in the public interest to obtain civil penalties, as discussed above, do not qualify the US proceedings as being proceedings relating to the commission of an offence or any illegal offence. I accept that the connector "relating to" in s 32(2), even though very wide in its application does not permit the acceptance of a submission by Mr Waldron which, as submitted by senior counsel for Mr Pulier, "elides any effective distinction between civil and criminal matters", given that on the evidence, the US proceedings are civil proceedings. This brings to consideration a further submission advanced by Mr Waldron.
25. The thrust of Mr Waldron's submissions were that, because Title 15 of the US Code contains a number of offence provisions (which are, in fact, unrelated to the US proceedings) and provisions which allow the SEC to compel the production of witnesses and documents in the course of SEC investigations which have penal sanctions for non-compliance, the US proceedings are, in substance, "proceedings relating to the commission of an offence or an alleged offence" within the meaning of s 32(2) of the Act. I reject those submissions.
26. In the first Miller affidavit, Mr Miller who has the relevant knowledge and expertise to give evidence to this Court as to the operation and effect of US Federal law, deposed that the US proceedings were civil proceedings.
27. I accept the submission for the SEC that, on the basis of Mr Miller's evidence, that the US proceedings are civil proceedings because: 1. the SEC seeks civil remedies in the nature of injunctive relief, disgorgement orders, banning orders and civil penalties; 2. the US proceedings must be proved to the civil standard of proof such that the US proceedings would be conducted without the standard of proof and rules of procedure characteristic of "criminal proceedings": Sykes at [10]; 3. the US proceedings were brought by the SEC, which does not have jurisdiction to institute criminal proceedings; 4. the USAO and the Department of Justice, which each report to the United States Attorney General are the only entities which may commence criminal proceedings for offences under the US Code; 5. criminal proceedings against Mr Pulier have been dismissed with prejudice and cannot be re-instigated; and 6. success by the SEC in the US proceedings cannot establish the commission of an offence, so as to expose Mr Pulier to any criminal sanction.
28. Further, the "proceeding" for the purposes of s 32(2) of the Act must be understood as being limited to a consideration of the actual proceeding on foot in the foreign jurisdiction, namely, a civil proceeding. Considerations such as other powers contained in, for example, Title 15 of the US Code that are not relevant to the US proceedings, are not relevant to the assessment of whether the "proceedings" are civil or criminal.
29. The SEC provided an analogy which is useful. The Competition and Consumer Act 2010 (Cth) ("CCA") contains separate civil and criminal prohibitions for cartel conduct: see, for example, s 45AJ is a civil penalty provision. It prohibits the making of a contract containing a cartel provision. Section 45AF is an offence provision. It prohibits the making of a contract containing a cartel provision. The fact that the CCA contains an offence provision (s 45AF) for similar conduct does not render civil proceedings for a contravention of s 45AJ as "proceedings relating to the commission of an offence or an alleged offence". Likewise, the Australian Competition and Consumer Commission ("ACCC") has coercive investigatory powers pursuant to s 155 of the CCA to require the production of witnesses and documents, which the ACCC may utilise in civil proceedings. Non-compliance with s 155 is a criminal offence: ss 155(5) and (6A). The fact that non-compliance with s 155 is a criminal offence, does not render any subsequent civil proceedings brought by the ACCC as being related to the commission of an offence.
30. I conclude, therefore, that the expression "proceedings relating to the commission of an offence or an alleged offence" in s 32(2) of the Act, means criminal proceedings. I accept the submission by the SEC that it would strain the statutory language impermissibly to suggest that, because Title 15 of the US Code contains offence provisions unrelated to the US proceedings and coercive powers (which, in fact, have not been exercised by the SEC in the US proceedings: see the third Miller affidavit), that the US proceedings could be characterised as relating to the commission of an offence.
31. I also accept the submission of the SEC that, if Mr Waldron's submissions (that the US proceedings relate to the commission of an offence) were accepted then non-compliance with a subpoena on pain of criminal contempt in any private law proceedings would render the characterisation of all such proceedings as 'proceedings relating to the commission of an offence or an alleged offence.'
32. In the circumstances, I do not consider that the US proceedings are proceedings relating to the commission of an offence or an alleged offence upon the construction of s 32 undertaken above.
33. It follows, in my view, that the provisions of s 32(2) do not apply to the US proceedings and the Court has, thereby, the jurisdiction to hear the application and motion.

MUTUAL ASSISTANCE IN CRIMINAL MATTERS ACT

1. Mr Waldron submitted that the Court must refer the matter to the Commonwealth Attorney-General. This was a further submission given to the Court's jurisdiction.
2. Mr Waldron submitted as follows: 38. Section 11(4) Mutual Assistance in Criminal Matters Act 1987 (Cth) provides: If a foreign country makes a request to a court in Australia for international assistance in a criminal matter: (a) the court must refer the request to the Attorney-General; and (b) the request is then taken, for the purposes of this Act, to have been made to the Attorney-General. 39. The expression "criminal matter" is defined by s 3 as follows (emphasis added): "criminal matter" includes: (a) a criminal matter relating to revenue (including taxation and customs duties); (b) a criminal matter relating to foreign exchange control; (c) a matter relating to the forfeiture or confiscation of property in respect of an offence; (d) a matter relating to the imposition or recovery of a pecuniary penalty in respect of an offence; and (e) a matter relating to the restraining of dealings in property, or the freezing of assets, that may be forfeited or confiscated, or that may be needed to satisfy a pecuniary penalty imposed, in respect of an offence; whether arising under Australian law or a law of a foreign country. 40. In this context, the definition of the expression "foreign pecuniary penalty order" assists in interpreting the words "pecuniary penalty" order, in the definition of "criminal matter". Section 3 defines "foreign pecuniary penalty order" to mean: "foreign pecuniary penalty order" means an order, made under the law of a foreign country by a court or other judicial authority, imposing a pecuniary penalty in respect of an offence against the law of that country, but does not include an order for the payment of a sum of money by way of compensation, restitution or damages to an injured person. 41. It is submitted that this definition applies to the civil penalty portion of the proceedings brought against Mr. Pulier, and, accordingly, the US proceedings are a "criminal matter". This is so, notwithstanding the fact that the standard of proof, which will be employed in the US proceedings, is the civil standard, since the definition of "criminal matter" distinguishes (albeit in a somewhat circular fashion) between a "criminal matter", and "a matter relating" to other orders. Notably, the orders, which are then (non-exhaustively) listed, are orders, which would typically be obtained based upon a civil standard, see, e.g., s 317 Proceeds of Crime Act 2002 (C'th) (standard of proof for proceedings under the Act is on the balance of probabilities). 42. Consequently, it is submitted that the Court is not permitted to deal with the request, but it must, instead, be forwarded to the Commonwealth Attorney-General for action. This contention is consistent with the Second Reading Speech to the Mutual Assistance in Criminal Matters Bill 1996, during which the Attorney-General stated: Proposed subclause 11(4) provides that incoming letters of request, or 'letters rogatory', which foreign courts might send direct to any Australian court, including federal, state and territory courts, seeking evidence to be taken in a criminal matter in the foreign country should be sent by the receiving Australian court to the Attorney-General. All incoming 'take evidence' requests, including 'court to court' requests, should be executed in a consistent manner pursuant to the Attorney-General's power under section 13 of the act to authorise a magistrate to take evidence on behalf of the foreign country. 43. Thus, the purpose behind s 11(4) of the Mutual Assistance Act is to ensure a consistent approach to applications made by foreign countries. This can only be achieved by the mandatory referral of requests to the Commonwealth, which, in turn, explains the use of the word "must" in s 11(4)(a), and why the process then is exclusive of the State court.
3. Having regard to the submissions of the SEC, those submissions should be rejected for the following reasons: 1. First, for the reasons given above, the US proceedings are not criminal proceedings. 2. Secondly, the definition "criminal matter" in s 3 of the MACM Act on which Mr Waldron relies (s 3(d)) concerns the imposition of a pecuniary penalty for an offence. The contraventions alleged in the US proceedings are not offence provisions, they are civil contraventions of US securities law (see first Miller affidavit at paras 22 and 31). 3. Thirdly, the US Court, being the party that issued the Letters of Request to this Court, is not a "foreign country", for the purposes of the MACM Act, or a "Contracting Party" or the "Central Authority" for the purposes of the Treaty between the Government of the United States of America on Mutual Assistance in Criminal Matters dated 30 April 1997. Likewise, the SEC does not fall within any of these definitions. The SEC is an independent federal government regulator. 4. For these reasons, s 11(4) of the MACM Act cannot apply to the "request" issued by the US Court, as that section and the corresponding obligation on a Court to refer any request received under that section is similarly only enlivened following a request by a foreign country to a Court: s 11(4), MACM Act. This is not the case here.

CONSIDERATION: SECTION 33

1. I will commence this consideration by reviewing some foundational requirements of s 33(1), which, in my view, have been met by the SEC in this case.

Relevance of Evidence

1. The obtaining of the evidence is for the purposes of the US proceedings and is for the purpose of giving effect to the requests of the US Court. Having regard to my earlier discussion of the evidence sought to be obtained and its relevance, the evidence to which the application relates is directly relevant to the legal claims and factual allegations at issue in the US proceedings.

Evidence is for use at trial

1. The evidence permitted to be obtained under the Act in compliance with a request by a requesting court in a foreign country is restricted to evidence for use in a trial, thereby excluding the obtaining of evidence which might lead to the procurement of evidence: BAT at [22] and [45].
2. Oral examinations that are for the purpose of obtaining evidence for the trial, as distinct from obtaining information, will fall within the ambit of the Act for the collection of "evidence": BAT at [40]; CSC No 1 at [52].
3. The purpose of the examinations of the Witnesses is not to obtain information. The purpose of the examinations of the Witnesses is to obtain evidence for use at trial in the US proceedings. In this regard: 1. Each letter of request states that the "sworn oral testimony" of a Witness is "to be used at trial" in the US proceedings. 2. Each letter of request states that testimony is requested of a Witness on the examination topics which are exhibited to each of the Letters of Request, and that this is "directly relevant to the legal claims and factual allegations at issue in the proceedings". 3. Amongst other persons, each party to the US proceedings may be in attendance at the examination of a witness. 4. The examinations will be recorded and the testimony presented at trial in the form of a deposition. The questions and answers will be read, or the video will be shown, during the course of this trial. The deposition testimony will be entitled to the same consideration as if the witness had testified in court (see first Miller affidavit at para 37(f)).
4. I accept the submission advanced by the SEC that the taking of evidence at this stage of the US proceedings is not premature because: 1. At the time of the hearing of SEC's motion for expedition of the summons, the amended evidence deadline in the proceedings was 16 October 2020. That deadline meant that until the orders for the further amended evidence deadline were made, the evidence was required to be obtained by 16 October 2020. 2. The further amended evidence deadline in the US proceedings is 16 November 2020 and is, in any event, pressing. That further amended evidence deadline means that all factual evidence (including the examinations of the Witnesses) must be obtained for the US proceedings by 16 November 2020.

Other relevant particular considerations

1. The orders in the summons all relate to steps that this Court would be able to require or would generally be made in respect of local proceedings: see s 34(4).
2. Each of the Letters of Request contains a list of "topics for examination".
3. In this way, each Letter of Request complies with the subject matter approach adopted under Article 3(f) of the Hague Convention, namely, the questions to be put to the persons to be examined or a statement of the subject-matter about which they are to be examined.
4. There is, in my view, ample basis for the Court to make, in its discretion, the orders proposed in the short minutes (with some minor amendments) in the present case. I note, in that respect, my conclusions under s 32(2) and the preceding additional considerations with respect to the operation of s 33. Some particular considerations arise in the case of Mr Waldron. I will return to those discretionary considerations separately under the next heading.

Application to Examine Mr Waldron

1. The parties agreed that, whether to allow the examination of Mr Waldron pursuant to s 33 of the Act, is a matter for the Court's discretion: see CSC No 2 at [7], citing with approval BAT. Notwithstanding this concurrence, and whilst the SEC and Mr Waldron each referred to the decision of the High Court in X7, the critical difference between them was as to the priority given to considerations arising in the content of the judgment in X7, in the context of the Court determining whether to exercise its discretion pursuant to s 33 of the Act.

Fundamental alteration to the process of criminal justice

Submissions Mr Waldron

1. Mr Waldron opposed the Court granting an order allowing the examination of him, submitting that Mr Waldron submitted that if he were to be compulsory examined, for the purposes of the US proceedings, it would constitute a fundamental alteration of the process of criminal justice. Such an examination would require him to answer questions relating to the subject matter relevant to offences for which he is currently being prosecuted in NSW criminal proceedings and, therefore, represent obvious prejudice: X7 at [124] (per Hayne and Bell JJ, with Kiefel J agreeing).
2. The "likely overlap between the topics" of the proposed examination and Mr Waldron's criminal trial was a central factor in the decision Court's decision in CSC No 2.
3. Justice Black, in CSC No 2 at [29], concluded that an alteration of the fundamental nature of the criminal process would arise if an examination of Mr Waldron preceded his criminal trial. His Honour was consequently not satisfied that the Court should exercise its discretion, pursuant to s 33 of the Act, to allow the examination of Mr Waldron.
4. Mr Waldron submitted that given the clear overlap between the allegations made against Mr Waldron in the NSW criminal proceedings and those about which he will be questioned in the US proceedings, the present proceedings are in no different position to those in CSC No 2. The Court, in the present proceedings, should, therefore, reach the same determination as Black J in CSC No 2 and exercise its discretion to refuse the examination with respect to Mr Waldron.
5. Mr Waldron submitted that it is the proposed compulsory examination prior to his criminal trial that would constitute a fundamental alteration of the nature of the process of criminal justice. The rationale for this submission was that it would infringe upon Mr Waldron's common law rights, as an individual facing a criminal trial, such as the privilege against self-incrimination. Thus, the Court should not allow permit the SEC's application.
6. Mr Waldron submitted that the legislature was capable of fundamentally altering the process of criminal justice. However, to do so, the trenching of rights can only be affected by statute if the legislative intention is made clear by express words or necessary intendment: X7 at [71] and [119]. Mr Waldron submitted that, the words contained in s 33 are expressed generally and, therefore, the Act did not operate to abrogate the common law rights of an accused in criminal proceedings.
7. If correct, it follows that an accused's privilege against self-incrimination is not disturbed so that the Court is not empowered by the Act to allow the compulsory examination of Mr Waldron.
8. Lastly, Mr Waldron submitted that the submissions of the SEC, to which I will turn below, misunderstand the impact of, and misapply, the decision in X7.

Submissions of the SEC

1. The SEC contended that the Mr Waldron's impending criminal trial, even with due consideration of X7, did not operate as to bar the Court from ordering his examination.
2. The SEC submitted that Mr Waldron's criminal trial is just one factor for the Court to consider in balancing all relevant factors in a given case to determine whether to exercise its discretion under s 33 of the Act.
3. In considering the implications of X7, SEC submitted that it is necessary to have regard the character of the examination that was under challenge in that case and the statutory scheme: Lee v NSW Crime Commission (2013) 251 CLR 196 ("Lee") at [47] (per French CJ).
4. SEC contended that X7 does not stand as authority for the proposition that legislation will never be construed to permit the compulsory examination of persons charged with offences or who are suspects in investigations. Rather, each case will turn on the interpretation of the relevant statutory provision: Lee at [3].
5. The SEC submitted that, in X7, the High Court considered the question of whether a compulsory civil examination (that involved the likely overlap of subject matter) of an accused prior to a criminal trial was permitted, either expressly or by necessary intendment, by the provisions of the Australian Crime Commission Act 2002 (Cth) ("ACC Act"). The SEC submitted that the High Court found that the words contained in the ACC Act were sufficiently general to encompass the circumstances of the case, but they did not deal directly or expressly with such a situation. The High Court, by majority, (Hayne and Bell J, Kiefel J agreeing) held that the relevant provisions of the ACC Act did not empower an examination of a person charged with an indictable offence.
6. The SEC submitted that a key aspect of the majority's reasoning was the fact that the ACC was only empowered to exercise its examination powers, in the context of the case, in relation to a "special investigation", which could only be undertaken where the Board of the Australian Crime Commission ("ACC") first considered "whether ordinary police methods of investigation into the matters are likely to be effective". In the context of the ACC Act, "effective" could be understood as meaning "effective to permit the laying of charges against offenders". As such, the ACC Act did not necessarily imply that the extraordinary power of compulsory examination could be used after the laying of charges.
7. The SEC submitted that, in CSC No 2, Black J determined that the Court should not exercise its discretion to allow an examination of Mr Waldron to proceed prior to his criminal trial. Among his Honour's reasons for so deciding, Black J held that there was a substantial likelihood that an examination of Mr Waldron prior to his criminal trial would alter the fundamental nature of the criminal process, relying on the High Court's decision in X7: CSC No 2 at [29].
8. The SEC submitted that, in the present application, the Court should not simply conclude that, because Mr Waldron faces a criminal trial in New South Wales, the X7 principle is automatically enlivened. The scope of the Court's power to conduct examinations and the use that may be made of evidence is critical to the exercise of the Court's discretion to allow the examination of Mr Waldron.
9. The SEC submitted, in support of that submission, the following: 1. The compulsory power to examine Mr Waldron pursuant to s 33 of the Act is sought to be exercised lawfully in accordance with the statute under which it is conferred for the purpose for which that power is conferred, namely to obtain evidence for use in foreign proceedings. Critically, the evidence sought is not to be used in the Waldron's criminal trial or in Australia at all. 2. Contrary to the circumstances in CSC No 2, the trial in the US proceedings will occur after Mr Waldron's criminal trial. Although Mr Waldron may be compelled to give evidence for the US proceedings before his criminal trial, any evidence given in the course of examination by the SEC would not be adduced in Court until after Mr Waldron's criminal trial was completed. The answers Mr Waldron gives in examination will not have the same effect on the evidence Mr Waldron could lead at criminal trial, as in CSC No 2. 3. Mr Waldron's examination could proceed before a judge of this Court so that Mr Waldron can assert his privilege against self-examination and the protections afforded under s 128 of the Evidence Act 1995: see s 34 of the Act. Under s 128 of the Evidence Act, the Court may issue a certificate which prevents use of evidence given under that section, that is, by a person exercising their privilege against self-incrimination, from being utilised in any proceeding in an Australian Court. This includes criminal proceedings: s 128(7), Evidence Act. Even if the giving by the Court of a certificate under s 128 of the Evidence Act was not recognised in the United States and potentially led to the admission and disclosure of Mr Waldron's evidence, unlike in CSC No 2, Mr Waldron's trial precedes the hearing of the US proceedings by some months. It is therefore not clear that Mr Waldron would suffer any prejudice by providing evidence pursuant to a s 128 certificate. This is contrary to the situation of Mr Waldron in CSC No 2 (at [27]). 1. Any prejudice could be addressed by deferring the release of evidence from Mr Waldron's examination until after his criminal trial has concluded.
10. The SEC submitted that, in CSC No 2, Black J also had regard to the following matters in refusing the application pursuant to s 33 of the Act: 1. a balancing of the prejudice to the parties when determining what course of action to take: CSC No 2 at [24]. The importance of the witness to the other proceedings was a relevant factor: CSC No 2 at [18]. 2. that the matters to be canvassed in Mr Waldron's examination plainly overlapped with the criminal proceedings: CSC No 2 at [21]; [29]. 3. the utility for CSC of an examination order being made: CSC No 2 at [29]. 4. that CSC did not seek to defer issuing a subpoena to Mr Waldron until his criminal proceedings were complete: CSC No 2 at [29].
11. The SEC contended that the present proceedings differ from CSC for the following reasons: 1. As to prejudice to the parties: 1. Mr Waldron is a central witness to the SEC's case, in that he "possesses information that is relevant and essential" to the US proceedings. 2. Unlike the foreign proceedings in CSC No 2, the US proceedings are directed at determining whether Mr Pulier acted contrary to provisions of regulatory legislation, as opposed to a private commercial dispute. 1. As to the whether the matters to be canvassed in Mr Waldron's examination overlap with his criminal proceedings: 1. The SEC is entitled to test whether and the extent of any overlap between Mr Waldron's criminal proceedings and the SEC's topics for examination. 2. The topics for examination set out in the Letter of Request issued by CSC, the subject of CSC No 2, were substantially broader than the Letters of Request pursuant to which the SEC moves the Court. 3. Relevantly, the CSC Letter set out 21 "Areas of Inquiry", including specifically, the criminal proceedings against Mr Waldron as a result of payments made by alleged associates or entities, see for example: 1. "Area of Inquiry" No 2: Meals, entertainment and gratuities bought for Mr Waldron; 2. "Area of Inquiry" No 7: Promises or offers of employment made to Mr Waldron; and 3. "Area of Inquiry" No 15: Payment received by Mr Waldron. 1. It is also open to this Court to make the examination orders only with respect to certain examination topics in the letter of request. In BAT, Spigelman CJ, stated (at [88]): [88] … In my opinion, the Court is not entitled to reject the request unless it is not able to mould an order which the Court believes to be an "appropriate" one for the purpose of giving effect to the request. 1. There is a real prospect that Mr Waldron will be able to respond to and answer questions within certain categories of examination, without being required to assert his privilege against self-incrimination. 2. There is utility for the SEC for an examination order to be made to obtain evidence from Mr Waldron to be used in the US proceedings.

Submissions of Mr Waldron

1. Mr Waldron submitted that the Court, if all of Mr Waldron's above arguments are rejected, should, nevertheless, in its discretion, refuse to give effect to the letter of request. In the affidavits of Mr Gibson sworn 1 and 25 September 2020, Mr Waldron's solicitor indicated that the criminal trial against Mr Waldron commences on 26 October 2020. It is estimated that the trial will run until the end of 2020 and the brief of evidence is voluminous, encompassing some 54 volumes of evidence.
2. Mr Waldron submitted that to require him to attend a compulsory examination so soon before his criminal trial would be oppressive: Restricted Decision [2016] NSWCA 103 ("Restricted Decision No 2") (at [116] per Beazley P). Mr Waldron submitted that those comments of Beazley P apply with equal vigour to Mr Waldron. Further, given the seriousness of the criminal trial, the considerable preparation required, and its imminence, Mr Waldron submitted the Court should the decline to issue the subpoena.

Submissions of the SEC

1. SEC submitted that provided the Court is satisfied of the matters in s 32 of the Act, the Court has a broad discretion under s 33 of the Act "to make such provision for obtaining evidence in the State as may appear to the Court to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made": see BAT at [42] and Pickles v Gratzon (2002) 55 NSWLR 533; [2002] NSWSC 688 at [80]. See also: CSC No 2 at [7].
2. The SEC submitted that, in determining whether to give effect to an application under s 32, by orders under s 33, Spigelman CJ in BAT considered that the Court should apply the factors summarised in Gredd at [27]. This is particularly so where an application is disputed, in which case, the Court must determine whether the order sought is one which it can and should properly make.
3. The SEC contended that, notwithstanding the possibility of a party's exposure to civil or criminal proceedings, the Court is entitled to exercise this discretion: BAT at [98]. This is premised on the notion that s 34 of the Act contains a comprehensive regime to protect the privilege of witnesses and that it is intended to operate in accordance with its terms.
4. In further support of that argument, SEC submitted that s 34 of the Act would preserve Mr Waldron's privileges against self‑incrimination and also legal professional privilege. Thus, the SEC submitted that s 34 provides a relevant protection to Mr Waldron, enabling him to assert his privilege against self‑incrimination if he was ordered to attend a compulsory examination.
5. The SEC submitted that the following matters, set out in Gredd, point in favour of granting the application in respect of Mr Waldron: 1. Legitimate investigation: it cannot be suggested that the SEC seeks the deposition of Mr Waldron for an illegitimate investigation, rather than to obtain evidence to adduce at trial in the US proceedings. This is evident on the face of the letter of request issued by the US Court. 2. Appropriate time for application and use of evidence: SEC has sought Mr Waldron's evidence at a stage where that evidence is capable of being adduced in Mr Pulier's trial, and where, having regard to the topics for examination, these items are relevant to the issues in the US proceedings. 3. Defer order: If the Court considers that it is not appropriate for the deposition to occur now, the Court has the power to make an order for this to occur at a late stage. 4. Limited evidence: The evidence sought is not wide, but limited. The matters on which Mr Waldron would be examined are non-contentious and are unlikely to be oppressive to Mr Waldron notwithstanding his impending criminal trial.
6. As to Mr Waldron's submission, in reliance on Restricted Decision No 2, the SEC submitted that the authority was not relevant to the Court determining whether to exercise its discretion under s 33 of the Act with respect to Mr Waldron. The circumstances of that case arose in circumstances where the Commissioner of the Australian Federal Police ("the Commissioner") sought to examine individuals as to the affairs of two persons pursuant to the specific legislative framework of the Proceeds of Crime Act.
7. The SEC submitted that both the primary judge and the Court of Appeal considered the following as significant factors in the exercise of the Court's discretion to postpone the examination, which do not apply to the present proceeding: 1. the abrogation of the right to silence and privilege against self-incrimination in compulsory examinations under the Proceeds of Crime Act was significant: Restricted Decision No 2 at [38]; 2. there was no practical prejudice to the Commissioner if the examinations were postponed as there was no urgency; and 3. the Commissioner had delayed its application for the examinations: Restricted Decision No 2 at [117].
8. The SEC submitted that Button J also considered the "imminence" of the criminal trial and likely disruption to trial preparation caused by the examination to be one of the least significant reasons before the Court regarding its consideration of whether to stay the examinations (reason 14 of 15): Restricted Decision No 2 at [37]-[38], referring to the primary decision, Restricted Decision [2015] NSWSC 888 ("Restricted Decision No 1") at [42].
9. The SEC submitted that the examination of Mr Waldron is likely to occasion limited prejudice to him in the preparation of his criminal trial. In SEC No 1, in respect of the hearing of the present proceedings, Wright J at [26] stated: [26] … In my view, to require Mr Waldron to prepare for and appear at a two day hearing in relation to the SEC's s 32 application during the six weeks before his trial commences is not oppressive. It is unlikely that Mr Waldron's legal representatives would need more than one week to prepare for and appear at the hearing of the SEC's application. His trial lawyers have already had considerable time in which to prepare for his District Court trial and will have approximately five more weeks until his trial, even if he does not retain additional legal representatives to deal with some or all aspects of the SEC application.
10. The SEC submitted that there are a number of other considerations that ought to be considered by the Court in favour of granting the order against Mr Waldron. The first of those was stated in the second Miller affidavit at para 10, extracted below: The SEC carries the burden of proof in the US Proceedings and believes that examining Mr Waldron about the events in question, even if Mr Waldron is unable or unwilling to answer any questions posed during his examination, will assist the trier of fact in the US Proceedings in determining whether the SEC has carried its burden.
11. As earlier mentioned, the SEC submitted that a second consideration, contended to be different from the facts and circumstances in CSC No 2, is that the trial in the US proceedings will occur after Mr Waldron's criminal trial. The US Proceedings are listed in April 2021. The effect of that submission being that any evidence or refusal to give evidence in the course of the examination will not be adduced in the US proceedings until after Mr Waldron's criminal trial in New South Wales is completed.

Section 128 of the Evidence Act

1. The Court, following the hearing, requested the assistance of counsel in respect of the following question: Assuming that the provisions of s 128(1) apply vis-à-vis the law of a foreign country or a civil penalty and the Court determines there are reasonable grounds for an objection by Mr Waldron, may Mr Waldron be required to give evidence upon the issuing of a certificate under s 128(5), having regard to the provisions of s 128(3)(b)(ii) and (c), (4), (5), (6), (12) and (14)?

Submissions of Mr Waldron

1. Mr Waldron's principally submitted that s 128 of the Evidence Act would not apply to his compulsory examination as it would not be conducted by a "NSW Court": s 4 of the Evidence Act.
2. Paragraph 3 of the Short Minutes seeks: An order that a person agreed upon by the Plaintiff and the Applicant, or such other person as the Court may determine, be appointed as the examiner by whom the Examinations are to be conducted.
3. The "Examinations" would not constitute "proceedings in a NSW court". Therefore, the Evidence Act, wholly does not apply: Wright v Clarkson [2000] NSWSC 669 at [7] (Hidden J). His Honour at [7] stated that the Evidence Act, including the provision for the protection of a witness from self-incrimination in s 128, does not apply to an inquest. See also: Decker v State Coroner of NSW [1999] NSWSC 369 at [22].
4. Even if Mr Waldron was examined by a judge of the Court, the examination would not be proceedings in a NSW court.
5. Thus, Mr Waldron submitted that s 128 of the Evidence Act is not applicable to him. If it was, even then, the obviation of prejudice against Mr Waldron is not achieved: X7 at [124].
6. Mr Waldron further submitted that, even if s 128 of the Evidence Act was applicable, a question arises as to whether the Court could compel Mr Waldron to give evidence in light of s 128(4)(a) of the Evidence Act, because of the possibility that the evidence may tend to prove that Mr Waldron has committed an offence against or arising under or is liable to a civil penalty under a law of a foreign country. An application to call further evidence was made by Mr Waldron.

Submissions of the SEC

1. Conversely, as to s 128(4) of the Evidence Act, the SEC submitted that if the Court is satisfied that one of the matters in s 128(4)(a) is established (that is, that the evidence does not tend to prove that the witness has either: committed an offence against or arising under a law of a foreign country; or is liable to a civil penalty under a law of a foreign country), the Court cannot require Mr Waldron to give evidence upon the issuance of a certificate under s 128(5) of the Act.
2. In respect of s 128(4)(a), the SEC submitted for the following reasons that Mr Waldron's evidence does not tend to prove that he has committed an offence against or arising under a law of a foreign country or tend to prove that he is liable to a civil penalty under a law of a foreign country.
3. First, Mr Waldron is not presently subject to any criminal proceedings or civil penalty proceedings in the United States regarding the matters the subject of the US proceedings.
4. Secondly, there is no evidence before the Court as to how Mr Waldron's evidence could tend to prove that he has committed an offence against or arising under a law of a foreign country or be liable to a civil penalty under a law of a foreign country.
5. A tendency to expose to self-incrimination may be obvious or sufficiently discernible in some cases. For example, where a witness admits to having committed an assault, it may be readily apparent that they have violated a foreign law.
6. In other cases, in the absence of specific evidence as to the operation and elements of the foreign laws in question, it may not be at all apparent that the particular evidence to be given by a witness is capable of satisfying the statutory requirement in s 128(4)(a) of the Evidence Act, for example, establishing to the requisite standard the physical and mental elements of a foreign criminal securities offence.
7. In such cases, there must be a rational basis to conclude that the link between the particular evidence to be given by a witness and the elements of the foreign offence or civil penalty would tend to prove that the witness has committed an offence against or arising under a law of a foreign country or that they are liable to a civil penalty under a law of a foreign country. Further, the statutory requirement that the evidence given by a witness would "tend to prove" a foreign offence, in the sense that the particular evidence is likely to prove the offence to the criminal standard (beyond reasonable doubt) would appear to be a high threshold.
8. It is not apparent at this stage that any evidence to be given by Mr Waldron will be capable of tending to prove he committed some foreign offence or violated some civil penalty provision.
9. Thirdly, the appropriate time for the determination of this issue (and accordingly whether the Court can compel Mr Waldron to give evidence), is at the time of Mr Waldron's examination: see s 128(1) of the Evidence Act, which requires a witness to object "to giving particular evidence".
10. In respect of s 128(4)(b) of the Evidence Act, there is no presumption as to what the interests of justice require. The test is not to be approached on the assumption that the privilege against self-incrimination is "fundamental" and that it would be rare to require a person who satisfies the test under s 128(2) to give evidence (Australian Workers' Union v Registered Organisations Commissioner (No 7) [2019] FCA 195 at [32]-[33]). Likewise, it would be wrong to assume that the protections conferred under s 128(7) create a presumption that the interests of justice will require the person to give the evidence. Each case must be assessed on its merits.
11. The SEC submitted that it is in the interests of justice that Mr Waldron give this evidence during the examination.
12. The US proceedings are directed at determining whether Mr Pulier acted contrary to provisions of regulatory legislation. Mr Waldron is a central witness to the SEC's case. He "possesses information that is relevant and essential" to the US proceedings: R v Lodhi (2006) 199 FLR 328 at [41]-[46].

Fundamental alteration to the process of criminal justice

1. It is clear that the Court has a broad discretion whether or not an order under s 33 of the Act may be made, which requires the Court to determine whether it is satisfied of the matters set out in s 32 of the Act and, if so, whether an order should be made under s 33 of the Act: BAT at [14]. In determining whether an order should be made, the Court may have regard to the factors summarised in Gredd at [27], and cited with approval by Spigelman CJ in BAT at [42].
2. In this matter particular attention was placed upon the applicability of the judgment of the High Court in X7 both as a bar to the examination of Mr Waldron or a powerful discretionary factor. It is to that consideration I will now further turn.
3. I have earlier summarised the submissions of the parties in this respect. As an introduction to this consideration I shall provide a brief overview without derogation from my earlier summary: 1. In brief, the submissions of Mr Waldron, in that respect, were: to the effect that a compulsory examination is to alter the fundamental nature of Mr Waldron's criminal trial as it infringes upon his right to invoke the privilege against self-incrimination; 2. the Act does not expressly, nor by necessary intendment, alter that common law right; and 3. alternatively, the Court should exercise its discretion to refuse the examination with respect to Mr Waldron.
4. The submissions of the SEC, in essence, were: 1. the X7 principle does not apply to the present proceedings as a result of subsequent High Court authority: R v Independent Broad-Based Anti-Corruption Commissioner (2016) 256 CLR 459 ("IBAC"); Strickland v Commonwealth Director of Public Prosecutions [2018] HCA 53 ("Strickland"); and Commonwealth v Helicopter Resources Pty Ltd [2020] HCA 16 ("Helicopter Resources"); 2. Mr Waldron's criminal trial is just one factor to consider when the Court is asked to exercise its discretion under s 33 of the Act; 3. the circumstances of the present proceedings limit the prejudice that would be caused by the compulsory examination of Mr Waldron. The decision in CSC No 2 should therefore not be followed; 4. Mr Waldron's examination could proceed before a judge of this Court so that Mr Waldron can assert his privilege against self-incrimination and the protections afforded under s 128 of the Evidence Act: see s 34 of the Act; and 5. the prejudice faced by Mr Waldron could be obviated by deferring the release of his evidence or his examination per se, until the conclusion of the criminal proceedings.
5. In X7, Hayne and Bell JJ, with whom Kiefel J (as her Honour then was), addressed the question of a compulsory examination of an accused prior to a criminal trial.
6. In answer to that question, Hayne and Bell JJ broadly considered the nature of the process of criminal justice, stating at [97] that a criminal trial "is both accusatorial and adversarial".
7. As to the adversarial nature of criminal trials, their Honours at [98] referred to the observations of Barwick CJ in Ratten v The Queen (1974) 131 CLR 510. The Chief Justice (at 517) said: It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility.
8. As to the accusatorial nature of criminal trials, their Honours continued (X7 at [99]): [99] The criminal trial process is accusatorial in the sense that it is for the prosecution to decide what charge is preferred against the accused. The trial process is accusatorial in the further sense that the prosecution bears the onus of proof of all elements of the charge that is laid. But describing these aspects of a criminal trial as "accusatorial" must not distract attention from the much wider and no less fundamental observation that the whole process of criminal justice, commencing with the investigation of crime and culminating in the trial of an indictable Commonwealth offence, is accusatorial. [Footnotes omitted.]
9. Their Honours at [100] observed that "there are some features of criminal trial process which, although now considered to be fundamental, are of relatively recent origin". For example, what "now are axiomatic principles about the burden and standard of proof in criminal trials" were not fully established until 1935: see Woolmington v Director of Public Prosecutions [1935] AC 462 at 481. A further noteworthy example, identified at [100] was that: [100] … Any reference to the history of the privilege against self-incrimination, or its place in English criminal trial process, must also recognise that it was not until the last years of the nineteenth century that an accused person became a competent witness at his or her trial. [Footnotes omitted.]
10. Hayne and Bell J at [101] stated: [101] … [T]he whole of the process for the investigation, prosecution and trial of an indictable Commonwealth offence is accusatorial. It is accusatorial in the sense that an accused person is not called on to make any answer to an allegation of wrong-doing, or to any charge that is laid, until the prosecuting authorities have made available to the accused particulars of the evidence on which it is proposed to rely in proof of the accusation that is made. And even after that information has been provided, the accused person need say or do nothing more than enter a plea of guilty or not guilty to the charge. If the accused person chooses to plead not guilty at trial, he or she is entitled to put the prosecution to proof of the charge and, as part of that process, to test the strength of the evidence which the prosecution adduces at trial.
11. In Reid v Howard (1995) 184 CLR 1 at 11 (Toohey, Gaudron, McHugh and Gummow JJ), the privilege against self-incrimination, described as "a 'fundamental … bulwark of liberty' is not simply a rule of evidence, but a basic and substantive common law right". Their Honours stated that the "accusatorial process of criminal justice and the privilege against self-incrimination both reflect and assume the proposition that an accused person need never make any answer to any allegation of wrong-doing".
12. Their Honours observed in X7 at [105] that an accused person's "right to silence": [105] … encompasses more than the rights that the accused has at trial. It includes the rights (more accurately described as privileges) of a person suspected of, but not charged with, an offence, and the rights and privileges which that person has between the laying of charges and the commencement of the trial.
13. As to whether the compulsory examination of Mr Waldron would fundamentally alter the process of criminal justice, by prejudicing his common law rights as an accused person, the observations of their Honour's in X7 at [71] and [124] are apposite: [71] Requiring the accused to answer questions about the subject matter of a pending charge prejudices the accused in his or her defence of the pending charge (whatever answer is given). Even if the answer cannot be used in any way at the trial, any admission made in the examination will hinder, even prevent, the accused from challenging at trial that aspect of the prosecution case. And what would otherwise be a wholly accusatorial process, in which the accused may choose to offer no account of events, but simply test the sufficiency of the prosecution evidence, is radically altered. An alteration of that kind is not made by a statute cast in general terms. If an alteration of that kind is to be made, it must be made by express words or necessary intendment. … [124] Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge. [Original emphasis.]
14. It must be recognised that the determinative question in this respect is - does the Act provide for the compulsory examination of an accused person about the subject matter of their pending criminal trial? That question is one statutory construction: X7 at [91].
15. It cannot be said that a statute can never effect fundamental alterations to the process of criminal justice. But such an alteration can only be made if it is made clearly by express words or necessary intendment: X7 at [119].
16. Indeed, in X7 their Honours said (at [121]): [121] From time to time, legislation has been enacted which has qualified the generally accusatorial nature of the process of criminal justice. Some of the earliest of those modifications are to be found in legislation providing for the examination of bankrupts, and of persons who have "taken part or been concerned in the promotion, formation, management, administration or winding up" of a corporation and who have been, or may have been, "guilty of fraud … or other misconduct in relation to that corporation". Legislation provided for the examination of bankrupts, and those thought to have defrauded companies, before the accused became a competent witness at trial. [Footnotes omitted.]
17. In Strickland, the joint judgment of Kiefel CJ, Bell and Nettle JJ accepted that IBAC stood for the proposition that the common law right to silence was beside the point in circumstances where it was lawfully overridden by the examiner's exercise of compulsive powers, under statute, for the purpose for which the statute provided: at [96].
18. X7 was referred to by the High Court in Strickland (at [76]) where the plurality considered that the observations of Hayne and Bell JJ in X7 had the following effect: [76] As Hayne and Bell JJ observed in X7 (No 1) in relation to an unlawful compulsory examination conducted post charge, even if the answers given at a compulsory examination are kept secret, and so cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers after being charged fundamentally alters the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial and adversarial trial in the courtroom. The examinee can no longer decide the course which he or she should adopt at trial according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial or to the strength of the evidence led by the prosecution at trial… [Footnotes omitted.]…
19. In Strickland, the High Court held that the powers of compulsory examination had been exercised unlawfully. Under the ACC Act, the power to conduct an examination is an ancillary power available to be used "for the purposes of a special ACC operation/investigation" (s 24A of the ACC Act). In the circumstances of that case, where the ACC did not, on its own behalf, conduct investigations into the relevant conduct but instead acted as a "facility" for the Australian Federal Police to cross-examine the appellants under oath for the Australia Federal Police's own purposes, there was no "special ACC investigation" that would authorise an examination to take place: at [70].
20. The determinations to conduct the investigation were incapable in and of themselves of constituting a "special ACC investigation", as the question of whether such an investigation was conducted was a question of fact and the availability of the examination power depended on the existence of an investigation of fact: at [71]. Moreover, the ACC Act could not be construed as authorising the ACC generally to lend its compulsory interrogation powers to the Australia Federal Police whenever the Australia Federal Police had under investigation a criminal offence listed in an ACC determination: at [73]. It followed that, since the examinations were not held for a permitted purpose, but rather for an extraneous, unlawful purpose of assisting the Australia Federal Police to compel the appellants to give answers to questions about offences of which they were suspected and had declined to be interviewed, the examinations were unlawful: at [74].
21. The SEC correctly submitted that the decision in Strickland turned upon the interpretation of the ACC Act, as well as the scrutiny of the particular circumstances of the case. However, that does not, in and of itself, and without more, assist the SEC as to their contention that the Act does operate to alter the fundamental nature of criminal justice, that is, override an accused's right to invoke the privilege against self-incrimination prior to their criminal trial. Strickland merely reflects the principle espoused in X7, that the common law right to silence is capable of being "lawfully overridden" under statute. The question is whether the Act in Pt 4 so operates?
22. Subject to the operation of the Act, there can be little doubt that the principles applied in X7 intersect with the circumstances of the present application concerning Mr Waldron because: 1. he faces criminal proceedings for serious offences; 2. his compulsory examination is sought prior to the completion of the criminal trial; and 3. the examination sought by the SEC covers substantially the same subject matter of the criminal proceeding.
23. In the last respect, having regard to the indictment in the criminal proceedings brought against Mr Waldron and the 9 examination topics detailed in the US Court Letter of Request Appendix A "Deposition Topics", there can be no doubt there exists a significant overlap between the subject matter of the topics on which Mr Waldron will be questioned in the US proceedings and the allegations made against Mr Waldron's in his criminal trial. In the US Court's letter of request, with respect to Mr Waldron, Magistrate Judge Oliver at cl 8(a) states: Evidence to be obtained Mr Waldron was arrested in Australia in March 2015 and charged by the New South Wales Police Force with commercial bribery. Mr Waldron is also facing charges of corruptly receiving and soliciting financial benefits and dishonestly obtaining financial advantage by deception. Mr Waldron has pleaded not guilty to all of the criminal charges. The criminal proceedings are presently listed for trial in May 2020. The subject matter of the criminal proceedings is likely to overlap with the Examination Topics. [Emphasis added.]
24. Nonetheless the parties' submissions on this issue of construction were unclear. It is, however, pellucidly clear that they variously rely on ss 33 and 34 of the Act, and I will proceed upon that basis.
25. It was common ground that ss 33 and 34 of the Act do not expressly provide for of compulsory examination of an accused prior to a criminal trial such as may offset the common law right to invoke the privilege against self-incrimination. Thus, the question must be posed as to as to whether s 33 of the Act abrogates an accused's common law rights, namely, privilege against self-incrimination, by necessary intendment.
26. It is ultimately unnecessary to finally resolve that question due to the conclusions I have come to as to the proper exercise of the Court's discretion pursuant to s 33 of the Act with respect to the examination of Mr Waldron. I have also adopted that approach because the absence of sufficient development of the submissions by the parties on the issue. Nonetheless, four brief observations as to this issue may be made, which raise doubts that the Act does necessarily intend to abrogate or fundamentally alter "the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom" (X7 at [124]).
27. As earlier noted, first, it is important to observe that the Act does not provide expressly for such an interruption to the process of criminal justice by the compulsory examination of a person charged with an indictable offence.
28. Secondly, the applicable rule of construction recognises that legislation may necessarily imply that its provisions work some fundamental alteration to the general system of law, or the qualification of some fundamental right, even though the Act does not expressly provide for that effect: X7 at [142]. See also: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 553 [11], 559-560 [32], 562-563 [43]. Such an implication must be necessary, not just available or somehow thought to be desirable.
29. Thirdly, s 33 of the Act provides for the power to grant compulsory examination. It is within that provision where a carve-out pertaining to an accused's common law rights prior to a criminal trial would be expected to appear. The generality of the provision, read in the context of Pt 4, does not, in my view, appear to necessarily imply any qualification to an accused's common law right to invoke the privilege against self-incrimination. Indeed, it is conceivable that a contra indication exists under Pt 4 given that s 33(1) expressly states that the power under s 33(1) conferred upon the Court arises only "if application is made under section 32", thereby incorporating the requirements of s 32(2) and a carve-out as to criminal proceedings.
30. The provisions of s 34 would not seem to demonstrate the "necessary intendment".
31. The provision makes no express reference to the examination of a person who has been charged but not tried for an offence about the subject matter of the pending charge.
32. It was common ground that the provision addressed the privilege against self-incrimination. However, this protection may be compared to the provision of the relevant legislation in X7.
33. The power conferred on the examiner in X7 was to summon a person to appear before the examiner at an examination to give evidence. However, the legislation then under consideration provided that, if the person being examined claimed that an answer to a question asked might tend to incriminate that person or make him liable to a penalty, then subject to certain exceptions, the answer given was not admissible in evidence against the person in criminal proceedings (see X7 at [73]). A further provision also provided that the examiner could give a direction preventing or limiting the publication of evidence given before the examiner (at [74]).
34. Notwithstanding these limitations, the High Court held that, even if the answers given at compulsory examination could not be used directly or indirectly by those responsible for investigating and prosecuting matter, a requirement to give answers, after being charged, would still fundamentally alter the accusatorial judicial process (X7 at [124]).
35. A provision which prevents compulsion against privilege adds greater weight to the proposition advanced by Mr Waldron that the legislation intended not to interfere with fundamental aspects of an accusatorial and adversarial criminal trial.
36. Fourthly, I consider that the SEC's reliance on IBAC and Helicopter Resources to be misplaced.
37. The SEC correctly submitted that, in IBAC, the High Court unanimously rejected an argument that the compulsory examination of a person who was suspected of a crime was impermissible because such an examination would effect a fundamental alteration to the process of criminal justice by requiring a person to assist in his or her own prosecution: at [30], [48]-[50].
38. It was correctly submitted that where compulsory powers were exercised lawfully in accordance with the statute under which they were conferred for the purpose for which they were conferred, the examiner was not prevented by the fundamental principle (that it is for the prosecution to prove the guilt of an accused person) or the companion rule (that an accused person cannot be required to testify to the commission of a charged offence) from compelling persons suspected of offences to answer questions concerning the offences of which they were suspected: IBAC at [48]-[50].
39. The SEC's submission as to IBAC does, however, not advance its contentions in respect of this mater. The decision in IBAC simply rejected the proposition that the companion principle can be extended to individuals who are merely suspected of criminal wrongdoing, as opposed to those who have, in fact, been charged: IBAC (per French CJ, Kiefel, Bell, Keane, Nettle, and Gordon JJ) at [48]-[50]. There is no suggestion that Mr Waldron has not been charged to face a criminal trial. The companion principle therefore does apply to him. Nothing the High Court said in IBAC detracts from the decision in X7 in the context of these proceedings.
40. The SEC also relied upon the decision of the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) in Helicopter Resources at [22]. It was contended, as a matter applicable to the present case, that the High Court in Helicopter Resources confirmed that Strickland was not authority for the proposition that: [22] … because an otherwise lawful compulsory investigative procedure may result in a witness making representations that can be treated as an admission against an accused in subsequent criminal proceedings, the deployment of that procedure amounts, without more, to a breach of the companion rule or other interference with the accusatorial system of criminal justice.
41. The effect of SEC's submission is, in my view, nebulous. In Helicopter Resources, their Honours (Keifel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) made clear at [2] that: [2] The principal question is whether the provision has the effect that invocation of an investigative power to compel an employee to give evidence about a matter with respect to which his or her employer stands charged with a criminal offence amounts to compelling the employer to give evidence contrary to the rule that an accused cannot be required to assist the Crown in proving its case. For the reasons which follow, it does not. Thus, it is unnecessary to address the appellant's other appeal grounds.
42. The High Court held that the companion principle was not invoked, since "the fact that an employee can be compelled to give evidence that may be treated as an admission against the employee's employer does not mean that the employer is thus compelled in effect to give evidence or otherwise to assist the Crown in proof of its case: Helicopter Resources at [19].
43. Hence, Helicopter Resources concerns the position of compulsory examination of a third-party witness and not, Mr Waldron's situation, a person charged with a criminal offence. As their Honours at [17] said: [17] The Full Court were also correct in holding that the compulsory pre-trial examination of a potential witness does not engage the general rule that an accused cannot be required to assist the Crown in proof of its case. That rule has been identified as a companion to the fundamental principle that the burden is upon the Crown to prove the guilt of an accused beyond reasonable doubt. It applies to an accused, not a witness or potential witness other than the accused; and, self-evidently, the compulsory examination of a potential witness other than the accused does not in itself involve any compulsion of the accused to give evidence or otherwise to assist the Crown in proof of its case … [Footnotes omitted.]
44. It follows that the decision in Helicopter Resources does not qualify, nor detract from, the decision in X7 or apply to the present proceedings in relation to Mr Waldron.
45. I turn then to the other discretionary factors.
46. The Court recognises that the examination of Mr Waldron is important to SEC's case in the US proceedings against Mr Pulier. This acts in favour of permitting the application with respect to Mr Waldron. Notwithstanding that consideration, on balance, there are numerous countervailing considerations that act against the Court exercising its discretion to allow the examination of Mr Waldron.

Relevance of the NSW criminal trial

1. It is a significant consideration in the exercise of the Court's discretion that Mr Waldron is the accused in a criminal trial which is yet to be heard. That consideration is influenced by the principles underpinning the judgment of the High Court in X7. Further, that factor is rendered particularly significant due to the seriousness of the offences for which Mr Waldron is charged - if convicted, he is liable to a term of imprisonment: X7 at [142].
2. I am cognisant of the decision of the Court in SEC No 1 at [26], that to require Mr Waldron to prepare and appear at an examination during the then six weeks before his trial commences was not oppressive. Conversely, in Restricted Decision No 1 and Restricted Decision No 2, the imminence of an accused trial was held to be a relevant, albeit less primary, discretionary factor. In the current context of the present proceedings, I too consider the imminence of Mr Waldron's trial to be relevant factor in the consideration of the exercise of discretion. However, I accept that it is on the lower end on a scale of significance, which is comprised of various factors.

Utility

1. A further factor in favour of an exercise of discretion to refuse the application for examination with respect to Mr Waldron is the absence of utility that may be gained through his examination. In substance, if a compulsory order were to be made, it would amount to a futility owing to Mr Waldron's right to invoke the privilege against self-incrimination.
2. The SEC properly accepted that s 34 protects the privilege against self-incrimination. Nonetheless, it was contended that, if Mr Waldron were to exercise the privilege against self-incrimination during examination, there still remains a "strategic utility" in him participating in the US proceedings. That is, even if Mr Waldron is unable or unwilling to answer questions posed in the examination pursuant to his privilege against self-incrimination (a position Mr Waldron has made clear in these proceedings), the SEC could still raise that occurrence in evidence in the US proceedings. Such an outcome would be relevant, it was contended, to the US Court's determination of the facts and matters in the US proceedings as to whether the SEC has proven its case.
3. Mr Waldron proffered, as to the possible basis for the SEC seeking to establish utility in the examination orders (if the privilege against self-incrimination was invoked) that "one might well divine that it is an attempt [by SEC in the US proceedings] to avoid what we in this jurisdiction might term a Jones v Dunkel direction". However, the rationale behind the SEC's position was not made clear by the SEC in its submissions.
4. Further, the SEC submitted that there still may be some general, non-specific, non-incriminating questions that could be asked of Mr Waldron, although none were particularised. However, in my view, that submission illustrates, in substance, the absence of real utility in the grant of compulsory examination.
5. Overall, and without the benefit of sufficient explanation on behalf of the SEC, the rejoinder of the SEC as to the futility of the examination, rose no higher than mere speculation and rather underscores the absence of utility in the granting of compulsory examination.
6. The provisions of s 128 would seem to offer no solace to the SEC in this respect. This may be viewed through the prism of the question raised by the Court with the parties, after reserving its decision, as to the significance of s 128(4) to the potential grant of a certificate in Mr Waldron's examinations.
7. The SEC responded as to s 128(4) of the Evidence Act as follows: 1. If the Court is satisfied that one of the clauses in s 128(4)(a) of the Evidence Act is established, the Court cannot require Mr Waldron to give evidence upon the issuance of a certificate under s 128(5) Evidence Act. 2. However, it was submitted that the Court would not come to such a conclusion because: 1. Mr Waldron is not presently subject to any criminal proceedings or civil penalty proceedings in the United States regarding the matters the subject of the US proceedings. 2. Mr Waldron's evidence does not tend to prove that he has committed an offence against or arising under a law of a foreign country or tend to prove that he is liable to a civil penalty under a law of a foreign country. That submission was advanced on the following bases. The appropriate time for the determination of this issue (and accordingly whether the Court can compel Mr Waldron to give evidence), is at the time of Mr Waldron's examination: see s 128(1) of the Evidence Act, which requires a witness to object to "giving particular evidence". 1. In respect of s 128(4)(b) of the Evidence Act, there is no presumption as to what the interests of justice require. The test is not to be approached on the assumption that the privilege against self-incrimination is "fundamental" and that it would be rare to require a person who satisfies the test under s 128(2) to give evidence (Australian Workers' Union v Registered Organisations Commissioner (No 7) [2019] FCA 195 at [32]-[33]). Likewise, it would be wrong to assume that the protections conferred under s 128(7) create a presumption that the interests of justice will require the person to give the evidence. Each case must be assessed on its merits. Hence, the SEC submitted that it is in the interests of justice that Mr Waldron be compelled to give that relevant evidence during the examination.
8. I will mention later the significance of s 128(4), but I propose to first deal with Mr Waldron's response to the Court's invitation to make submissions regarding the issue raised by the Court as to s 128(4) (although Mr Waldron's submissions were wider). In that respect, there would appear to be substance in Mr Waldron's submissions that s 128 would not apply having regard to the context of Mr Waldron's examination although the SEC has not, as yet, responded in terms, to those submissions. Section 4(1) of the Evidence Act, relevantly provides: 4 Courts and proceedings to which Act applies (1) This Act applies to all proceedings in a NSW court, including proceedings that - (a) relate to bail, subject to Division 4 of Part 3 of the Bail Act 2013, or (b) are interlocutory proceedings or proceedings of a similar kind, or (c) are heard in chambers, or (d) subject to subsection (2), relate to sentencing.
9. In the Dictionary, "NSW court" is defined as follows: NSW court means - (a) the Supreme Court, or (b) any other court created by Parliament, and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence.
10. Any questioning which may occur before an examiner is not a "proceedings in a NSW court". It would not appear the examiner would be required to apply the laws of evidence, and therefore, s 4 of the Evidence Act could apply only if the questioning occurred in proceedings before the Court.
11. While the applicant is required to approach the Court to seek orders to compel the attendance of persons to give evidence, the process of the questioning of those persons cannot be described as being "proceedings" before the Court. This can be seen especially in the order originally sought by the applicant, namely, that Mr Sulan, a member of the NSW Bar, be appointed as the examiner and by the ultimate form of the order advanced by Mr Pulier.
12. The statutory language demonstrates that the questioning ought to be seen as being different from proceedings before the Supreme Court. Section 33(4) Evidence on Commission Act provides: 33 Power of the Supreme Court to give effect to application for assistance … (4) An order under this section is not to require any particular steps to be taken unless they are steps that can be required to be taken by way of obtaining evidence for the purposes of proceedings in the Supreme Court (whether or not proceedings of the same description as those to which the application for the order relates). [Emphasis added.]
13. If the proposed questioning of persons were to be viewed as being part of proceedings in this Court, then this provision would be unnecessary. Thus, the powers available would be defined by virtue of the nature of the matter before the Court, being a proceeding before the Court.
14. In circumstances where there are no proceedings in a NSW court, s 128 does not apply: see example, Decker v State Coroner of NSW, cited with approval Wright v Clarkson at [7] per Hidden J. (The Coroner's Court does not fit within the definition of "NSW court", and accordingly the mechanism under s 128 was not available).
15. In such circumstances, the privilege against self-incrimination cannot, in the absence of statutory warrant, be abrogated, see Reid v Howard at [5]. Accordingly, the common law privilege would continue to apply, and Mr Waldron could not be compelled, contrary to his privilege against self-incrimination, to give evidence. Thus, as to the question of utility, there would be no certificate mechanism available, which would permit that prohibition to be overridden.
16. To the extent that Application concerning Section 80 of the Supreme Court Act and Sections 119 and 128 of the Evidence Act [2004] NSWSC 614 (Brownie AJ) stands for the contrary proposition, I note that his Honour was not, apparently, referred to the terms of s 4 of the Evidence Act. Nor does there appear to have been any argument advanced by any party that the Evidence Act would not apply.
17. Further, s 128 of the Evidence Act itself, tends to demonstrate that it does not apply to the present circumstances. The section distinguishes between proceedings before a NSW court and other inquiries. For example, 128(7) provides for a limitation on where compelled evidence may not be employed against the witness: In any proceeding in a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence - (a) evidence given by a person in respect of which a certificate under this section has been given, and (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
18. Thus, the Act appears to distinguish between proceedings in a NSW court and proceedings "before any person or body authorised by a law of this State…". Whilst the examiner may fall into the latter category, the former would not seem to apply.
19. Further, the legislature referred to the person objecting being a "witness". The term "witness" is defined by the Dictionary in the following terms: "'witness' includes the meaning given in cl 7 of Pt 2 of this Dictionary". In turn, cl 7 provides: Witnesses (1) A reference in this Act to a witness includes a reference to a party giving evidence. (2) A reference in this Act to a witness who has been called by a party to give evidence includes a reference to the party giving evidence. (3) A reference in this clause to a party includes a defendant in a criminal proceeding.
20. It is true the definition is non-exclusive in the light of the word "includes". However s 131A provides: 131A Application of Part to preliminary proceedings of courts (1) If - (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and (b) the person objects to giving that information or providing that document, the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence. (2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following - (a) a summons or subpoena to produce documents or give evidence, (b) pre-trial discovery, (c) non-party discovery, (d) interrogatories, (e) a notice to produce, (f) a request to produce a document under Division 1 of Part 4.6.
21. This provision was introduced by cl 63 of Sch 1 of the Evidence Amendment Act 2007 (NSW), because the law relating to privilege was seen as not applying to preliminary processes, but applied only to the adducing of evidence itself, see Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 at 55 [3] (per Gleeson CJ, Gaudron and Gummow JJ). Section 131A does not apply the word "witness", but rather uses the expression "person is required by a disclosure requirement to give information".
22. I accept the submission of Mr P D Lange, who appeared for Mr Waldron, that this statutory context supports a construction that a "witness" was a person from whom evidence was adduced in proceedings. Hence, even if the subpoena were to issue, Mr Waldron would not be a "witness", who could take an objection under s 128.
23. I note that s 131A now extends the law on privilege to pre-trial processes.
24. Such a construction of s 128 of the Evidence Act is also supported by the mechanism by which the objection is considered. The objection is to be considered by "the court" (subs (2)). "The court" is to give the witness certain information (subs (3)). "The court" must give a certificate in certain circumstances (subs (5)). A construction of the provision whereby s 128 would operate, if the examination were conducted by a judge of the Court, but not if, as proposed, the examination were conducted by a member of the Bar is incongruous, if not absurd, as, the nature of the protection should be governed by the nature of the proceedings.
25. Further, and referring to s 128(4), there must be doubts that, irrespective of the above considerations, Mr Waldron could be compelled to give evidence in the light of that provision.
26. Section 128(4) provides: (4) The court may require the witness to give the evidence if the court is satisfied that - (a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and (b) the interests of justice require that the witness give the evidence.
27. It is true, as submitted by the SEC, that Mr Waldron is not presently subject to any criminal proceedings or any civil proceedings in the US regarding the matters raised in the US proceedings.
28. It is also true that Mr Waldron's evidence does not presently establish whether evidence sought to be led would serve to prove that Mr Waldron had committed an offence against or arising under or was liable to a civil penalty under a law of a foreign country.
29. But I do not consider, in the circumstances, that Mr Waldron should be deprived of further opportunity to call evidence on these questions.
30. Whether or not the ultimate time to resolve the issues arising under s 128 of the Evidence Act is the time of examination (about which further submissions may be received), it is a consideration which in my view, should be considered in these proceedings, at least at a preliminary level, in order to consider the question of utility.

Deferment

1. As to whether the Court considers it is not appropriate for the examination of Mr Waldron to occur prior to the conclusion of the NSW criminal proceedings, the SEC advanced two contentions.
2. Firstly, any prejudice to Mr Waldron that results from his examination occurring prior to the NSW criminal proceedings could be addressed by deferring the release of evidence from Mr Waldron's examination until after his criminal trial has concluded.
3. Secondly, the Court has the power to make an order for Mr Waldron's examination to occur at a later stage. Mr Waldron did not make submissions as to that possibility.
4. The first contention, that such a course would not occasion prejudice, is illusory and offers, in prospect, the fundamental alteration of the accusatorial judicial process: X7 at [124].
5. As to the second contention, the parties did not meaningfully address the issue.
6. The question as to whether the Court should permit the examination of Mr Waldron after the conclusion of the NSW criminal proceedings has a relationship to the debate regarding whether s 128, and, in particular, s 128(4) operated in relation to any examination of Mr Waldron.
7. The SEC asserted that, there is no evidence before the Court on that question but that is not, as I have mentioned, a satisfactory means of dealing with the issue particularly where I have determined that any examination of Mr Waldron must await his criminal trial. This Court would then have the opportunity of receiving further submissions as to the operation of s 128 generally.
8. Hence, the final determination of the issues with respect to the examination of Mr Waldron should, in my view, be held over until after the criminal trial.
9. Nothing in this conclusion should be taken in any way as reflecting upon the US proceedings which will proceed as a matter for the discretion of the US Court.

Orders allowing the partial examination of Mr Waldron

1. This question is presently superseded by my decision as to deferment. However I propose to make some brief observations on the topic.
2. The observations of Spigelman CJ in BAT at [88] makes clear that the Court must endeavour to mould an order which the Court believes to be an appropriate for the purpose of giving effect to the request. Thus, the Court may determine, and exclude, topics or questions that are inappropriate for the examination Mr Waldron because they overlap with his NSW criminal proceedings. The corollary being that, the Court may, and should, permit appropriate questions to be asked of Mr Waldron, so as to give effect the letter of request to the fullest extent possible: Re Westinghouse Electric Corporation Uranium Contract Litigation (at 654).
3. A question arises as a result of the observation of Spigelman CJ in BAT (at [88]). If the Court were to limit the examination of Mr Waldron solely to questions that did not overlap with the NSW criminal proceedings, what would the residue of possible questions are capable of being so characterised as gives effect to the letter of request?
4. Given the significant overlap between the US proceedings and the NSW criminal trial, it is likely that the possible questions that remain are would produce a paucity of information.
5. As mentioned, it has not been explained with any precision what residue of questions could be permitted consistently with protecting Mr Waldron's right to invoke the privilege against self-incrimination in the criminal proceedings. What is clear is that the residue of the possible questions would be slim.
6. It follows that the distinction sought to be drawn by the SEC between the decision of Black J in CSC No 2 and the circumstances of this matter, is somewhat tenuous. Mr Waldron's status as the central witness to the SEC's case in the US proceedings, being a discretionary factor, is a relatively minor one when compared to the prospect of prejudicing Mr Waldron's criminal trial. Similarly, the fact that the US proceedings concern the conduct of Mr Pulier, as opposed to Mr Waldron, himself, does not effect to distinguish the decision in CSC No 2, wherein Black J considered prejudice a central discretionary consideration in refusing Mr Waldron's compulsory examination. That is, although Mr Waldron is not in the position of defending the US proceedings, unlike the circumstances in CSC No 2, he will nevertheless be prejudiced in the NSW criminal proceedings, if compelled to examination. Further, the breadth of the proposed topics for examination is not relevant to Court's exercise of discretion. That is, considering slight differences in scope, as between the topics for examination in CSC No 2 and the present proceedings, without due attention to the overlap of subject matter when compared to the charges in the criminal proceedings does not relevantly distinguish the decision in CSC No 2. These differences in proposed examination topics are as to form, and to that end superficial. As previously mentioned, the subject matter in the US proceedings does significantly overlap with the criminal proceedings.

Conclusion

1. There are significant discretionary factors weighing against the making of orders in the short minutes of order against Mr Waldron. However, the final disposition of that question can await the receipt of further evidence and submissions of the character referred to under the heading "deferment" above.

CONDUCT OF EXAMINATIONS BY AUDIO-VISUAL LINK

1. In light of the current restrictions imposed as a result of the COVID-19 pandemic in Australia and the United States of America, the SEC seeks orders that the examinations be conducted by Audio-Visual Link.
2. Relevantly, due to travel restrictions into Australia and in the United States, the attorneys with carriage of the US proceedings are unable (or unlikely to be able) to appear at the examinations.
3. Further, the Witnesses have requested that the examinations take place by audio-visual link, to minimise the risk of transmission of the COVID-19 virus.
4. Considering this Court's current policy as to remote hearings and applications, the SEC submits that by analogy, orders for the conduct of the examinations before the examiner by audio-visual link are appropriate.
5. It is appropriate orders be made for examination via audio visual link as proposed in the short minutes, pursuant to s 33(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) and r 31.3(1) of the Uniform Civil Procedure Rules 2005 (NSW).

Annexure A (25553, pdf) Postscript: On 23 October 2020, after orders had been made by the Court, and this draft judgment prepared, counsel for Mr Waldron advised that upon application by Mr Waldron, which was ultimately not substantially opposed by the Crown, his trial was vacated. Pre-trial arguments are now presently listed for 2 weeks, commencing 15 February 2021, and the trial proper has been listed to commence on 31 August 2021. No attempt was made by any party to relist the proceedings. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 October 2020