e consideration
28 First, I simply would not proceed with the hearing unless I was satisfied that Mr Hunter and Mr McDonald could give evidence remotely from New York. In the current circumstances it would be wholly unrealistic to expect them to travel to Australia for the purposes of the hearing, and to the extent that they give evidence or otherwise participate, it would need to be remotely.
29 Secondly, I am conscious of the large number of ASIC witnesses proposed to be called and the demands on the defendants to cross examine a large number of witnesses. Having said that, the evidence given by a number of these witnesses will be relatively confined, and the evidence in chief to be adduced by ASIC has been filed and served by affidavit. No doubt if instructions need to be obtained in relation to the evidence given by these witnesses, there is ample opportunity for such instructions to be given. No doubt there will be real disadvantages in junior counsel being unable to tug senior counsel to remind him or her of some question or document that senior counsel may have forgotten, but there are other ways (as I have already observed) for such communications to be made in real-time, and in any event I am confident, through some patience and forbearance, that appropriate accommodations can be made, including for there to be short adjournments prior to the conclusion of cross examination of any witness if required.
30 Thirdly, I am acutely conscious of how large litigation is prepared in teams. Working collaboratively with other highly skilled legal practitioners is one of the joys of being involved in large-scale litigation. It would no doubt be both more productive and more enjoyable for such preparation to occur with all of the team being together. But, it is possible through modern technology for teams to work together, albeit perhaps less efficiently, remotely. As for the experience of other cases, each case turns on its own facts. I am sensible to the fact that unanticipated problems may become evident during the process of preparation, or there may be some deus ex machina event which means that the current decision will need to be revisited. But having satisfied myself it is possible for a trial to be conducted fairly, then my present intention and focus is to try to make such a trial work.
31 Fourthly, again I appreciate that there may be technical issues, but there are two relevant responses: (a) the parties will need to work together and with the Court closely over the next few months to ensure that the technology used by the parties is of a sufficient quality to minimise any such difficulties; and (b) if unexpected difficulties arise, then the parties have the assurance of knowing that the Court will seek to show some latitude and forbearance in having those problems work themselves out.
32 Fifthly, in Webb v GetSwift Limited (No 5) I referred (at [18]-[19]) to the following:
As Leggatt J said in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [15]-[23], there are a number of difficulties with oral evidence based on recollection of events given the unreliability of human memory. Moreover, considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. As his Lordship noted, a witness is asked to make a statement, often when considerable time has already elapsed since the relevant events. The statement is usually drafted by a solicitor who is inevitably conscious of the significance for the case of what the witness does or does not say. The statement is often made after the memory of the witness has been "refreshed" by reading documents. The documents considered can often include argumentative material as well as documents that the witness did not see at the time and which came into existence after the events which the witness is being asked to recall. It may go through several iterations before it is finished. As Lord Buckmaster famously said, the truth "may sometimes leak out from an affidavit, like water from the bottom of a well". This may be overly cynical, but the surest guide for deciding the case will be as identified by Leggatt J at [22]:
… the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on the witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.
This is not to say that I discount the fact that Mr Hunter and Mr MacDonald (at least) may be significant witnesses; indeed, their subjective understanding of facts may be of real importance in determining matters in the ASIC proceeding. The point is, however, that any evaluation of the difficulties that may arise with oral testimony must take account of the likelihood that the best assistance the Court is likely to receive is to be found in the contemporaneous documentary record.
33 To the extent that demeanour does play an important role in assessing the evidence of witnesses, then my experience, particularly in the recent trial that I conducted, is that there is no diminution in being able to assess the difficulty witnesses were experiencing in answering questions, or their hesitations and idiosyncratic reactions when being confronted with questions or documents. Indeed, I would go further and say that at least in some respects, it was somewhat easier to observe a witness closely through the use of the technology than from a sometimes partly obscured and (in the Court in which I am currently sitting) distant witness box.
34 Sixthly, there is undoubted difficulty in taking instructions during the course of evidence, but again, as noted above, this is something which, although not ideal, does not create insuperable difficulties with the use of some imagination.
35 Seventhly, I recognise that this is a fluid situation and that events might occur that make it impossible to continue. Of course, the converse is also true, things might get easier. In any event, a party to the proceedings should feel no hesitation revisiting the question of adjournment if matters arise which have not been canvassed during the course of this adjournment application, or where some real prejudice of the type currently anticipated does emerge, which means that the case does start to go off the rails, or a party perceives that there is some real unfairness being occasioned. Needless to say, if I am satisfied that if the procedure adopted is causing an unfairness to a party, or parties, then that is the point that it does become a second-rate hearing and ought to be stopped. Starting the case and then adjourning it will involve an element of double-handling, which would involve increased costs, but in my view these are outweighed by the countervailing considerations in favour of keeping the current dates.
36 Eighthly, I would be un-attracted to witnesses, particularly witnesses who are facing serious allegations, being required to give evidence late at night. Having said that, senior counsel appearing on behalf of ASIC has indicated a willingness to cross examine at a time convenient to the witnesses, and all of us must make accommodations to account for the difficulty in which those witnesses find themselves. Accordingly, I would be prepared to sit outside of court hours to ensure that those witnesses (if indeed they do give evidence) have their evidence taken at some convenient time.
37 Ninthly, I have already dealt with the difficulty in preparation above. Again I am conscious that the current situation is not ideal in preparing for a hearing involving serious allegations. But again, one must do the best one can.
38 Tenthly, I am much less sanguine as the defendants about the counterfactual of there being a lengthy delay in the hearing. Indeed, it creates real difficulties. Those difficulties transcend the interests of these parties, and involve broader considerations. The work of the Court needs to go on. To adjourn this matter will mean that I need to find another time in an already busy calendar which will displace the opportunity of hearing other cases which have, at the very least, equal priority. It is not easy for me to, as it were, slip in other matters at this late stage. An adjournment will disrupt the listing of other matters. This would involve those litigants suffering prejudice. It is not only about the rights of these parties to have their day in court, but also the rights of other parties to have their day in court. Although no reliance was placed on it by counsel for the applicant in the Class Action, it is also appropriate for me to have regard to the position of group members. Although far from determinative of the application, I have a protective and supervisory role in relation to group members: given the ASIC Proceeding needs to be determined initially, any adjournment of the ASIC Proceeding will have a "knock on" effect, and the current determination of group member claims has already been considerably delayed by a number of procedural fights in the Class Action. Further, the ASIC Proceeding being a regulatory proceeding is one which, by its nature, should be determined promptly. Orders are sought which may affect the ability of persons to be involved in the management of corporations. Serious issues are raised by the ASIC Proceeding, which in the ordinary course should be determined as quickly as the business of the Court and fairness allows.
39 Eleventhly, although work can be done in the interim, the substantive work will be at the hearing, which in my view would be very substantially delayed if the current dates are lost.
40 Twelfthly, I have already dealt above with the fact that I am acutely conscious of the seriousness of the ASIC Proceeding. I have anxiously taken into account the fact that a party might feel aggrieved about an outcome which they have subjectively considered may have been less than ideal. Even if I am satisfied that justice will be able to be done by the case proceeding, it is important that it is perceived to be done by those involved in it. But, to quote the Court of Appeal of Western Australia in JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd (at [14]), I am "unable to perceive any real risk of practical injustice" of at least such a dimension as to mean that the case ought not proceed.