Analysis
46 The Court must exercise its case management powers in a way that facilitates the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible: s 37M of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). As the words "as possible" signify, the latter injunction invokes relative standards judged against the circumstances that present themselves at the time the decision is to be made. Moreover, they are not standards that are necessarily harmonious with each other. For example, a step which leads to a quick outcome might not necessarily be one that is inexpensive or efficient, compared to other options; a step that is efficient might not necessarily lead to a quick outcome or be inexpensive, compared to other options. However, guided by these precepts, and the imperative to ensure that a just resolution of disputes is secured, the Court must come to an evaluative judgment as to how the individual proceeding before it is best managed in the interests of justice. There will be competing considerations.
47 I do not think that, with the experience gained over the last eight months in which, generally speaking, the conduct of mainstream civil litigation in the Court has changed rapidly and dramatically, it can be denied that hearings can be conducted quickly, inexpensively and efficiently using remote access technology, resulting in the just resolution of disputes according to law. But the Court has not proceeded on the basis that all hearings should be conducted using remote access technology just because they can be conducted in that way. As I have said, an evaluative judgment must be made as to how the matter before the Court should best proceed, bearing steadily in mind the requirement of the overarching purpose stipulated in s 37M of the FCA Act. Circumstances might dictate that the options available to the Court are limited; or they might reveal a broader range of options which are appropriate to be considered for case management. There is no "one size fits all" option. To proceed as if there were such an option, would be to ignore the duty which s 37M itself imposes.
48 The competing arguments advanced in the parties' submissions point in different directions. At a broad level, I accept that the hearing of this proceeding could proceed using remote access technology with Mr Albanese participating in New Jersey and Mr Elliott participating in London. I accept that, on present indications, such a hearing would achieve a just resolution of the matters in issue. But it does not follow that that would be the best case management option.
49 In deciding on the best case management option, the following matters strike me as being particularly important.
50 First, as I have noted, the events with which the proceeding is concerned took place in 2011 to early 2013. The proceeding was commenced some years later in March 2018, well after the events occurred. At the time the proceeding was commenced, neither Mr Albanese nor Mr Elliott were directors or held office in RTL or any Australian company. In fact, by that time, they had not held office in RTL for some five years. Further, neither Mr Albanese nor Mr Elliott is a director or holds office in any Australian company at the present time or seeks to do so in the future. These facts are important when it is borne in mind that the protective relief sought by ASIC against each individual is that, under s 206C of the Act, he be prohibited from managing a corporation for such period as the Court thinks fit. This distinguishes the present case from one where such relief is sought against an individual who remains a director or officer of an Australian corporation while proceedings, seeking that relief, are pending. This is not a case where the Australian public is exposed to the risk of a person acting as a director or officer of an Australian company who, because of his or her conduct, should not be so acting. Further, there is no other existing legal proceeding which is dependent on the present proceeding being heard in March/April 2021.
51 Whilst there is certainly an argument that, given the time that has elapsed since the alleged events occurred, the proceeding should be heard sooner rather than later, there is no imperative that the present proceeding be heard in March/April 2021. ASIC points to no prejudice if the proceeding is not heard then, beyond the fact that it is a regulatory proceeding which, by its nature, should be determined promptly because serious issues have been raised. All agree that the issues raised are serious - indeed, very serious. But, as Mr Albanese's and Mr Elliott's submissions make clear, that consideration cuts both ways. What needs to be considered are the objectives that are sought to be achieved by continuing, at the present time and in the present circumstances, to commit to a seven-week hearing commencing on 1 March 2021. ASIC, fairly, does not contend that it would suffer any prejudice in the presentation of its case if the proceeding was not heard in March/April 2021 or if its commencement were to be delayed as the two individual defendants seek. The same is true of RTL and the presentation of its case. As to the public interest, there is no suggestion that the Australian public would be at risk, and thereby prejudiced, if the proceeding was not heard in March/April 2021, for the reasons I have explained. However, conversely, Mr Albanese and Mr Elliott each say that they would suffer prejudice if the matter were to proceed to a hearing in March/April 2021 rather than at a later time.
52 Secondly, I accept unhesitatingly that the conduct of the hearing by remote access technology with Mr Albanese in New Jersey and Mr Elliott in London will place enormous physical and mental demands on them given their desire to participate in the hearing in real-time. To some extent the effect of time differences can be ameliorated by the Court varying its sitting hours, but the ability to vary sitting hours has its limits, especially when a seven-week hearing is in prospect. Further, the difficulty is not managing just two time zones but three vastly different, and potentially more, time zones in a given hearing day. Given the serious allegations against them and the relief that is sought (pecuniary penalties and disqualification orders), it is reasonable, understandable and entirely appropriate that Mr Albanese and Mr Elliott would wish to participate in the hearing in real-time in the protection of their own interests.
53 What is more, senior counsel for Mr Albanese, and senior counsel for Mr Elliott, have each expressed the earnest desire to have his client available in real-time to consult with, including during the course of cross-examinations. Mr Albanese and Mr Elliott are not merely actors in the alleged events. The subject matter of the proceeding is the prospectivity of mining assets in a remote part of Mozambique and what was disclosed, or not disclosed, in RTL's financial statements and reports, and to the market in that regard. The matters raised for judgment are clearly complex. As Senior Counsel for Mr Albanese put it, the case is "not a quotidian investigation of possible commercial deficiencies". Mr Albanese has mining engineering qualifications and has worked in the mining industry for decades, including as the Chief Executive Officer of RTL, a major global mining company. I accept that, with his expertise, his engagement with the evidence as it unfolds, and his immediate availability to assist his legal representatives as and when required, will be of real benefit to the efficient conduct of his defence, and thus the hearing. The same applies to Mr Elliott, with no less cogency. I have already referred to aspects of his corporate career. I accept that his expertise, background and training will likely enable him to give material assistance during, for example, the course of the cross-examination of the experts to be called on financial matters as well as on the materiality of disclosures which were made and which, ASIC says, should have been made but were not made.
54 I do not leave out of consideration the fact that the evidence to be met by Mr Albanese and Mr Elliott includes statements attributed to them by lay witnesses that are not recorded in documents. I am informed that these statements will be tested in cross-examination, heightening the prospect that timely instructions from Mr Albanese and Mr Elliott might be required as the cross-examinations proceed.
55 Having noted these matters, I accept that it might be possible for "workarounds" to be implemented where Mr Albanese and Mr Elliott "catch up" on the hearing as it proceeds by reading the daily transcript or, perhaps, viewing a recording of the day's hearing, if one can be made available, during their normal waking and working hours, and then communicating their instructions to their legal representatives in Sydney. But I do not think that this is the preferable way to proceed. It is cumbersome and inefficient compared to real-time participation. It lacks the obvious immediacy and benefits of real-time participation in person. It could lead to multiple adjournments being sought by the individual defendants during the course of the hearing, and prolong it. It could lead to dislocation of the course of the evidence and visit inconvenience upon the witnesses. It could also work to the disadvantage of cross-examining counsel who has to re-visit topics which have already been tested by cross-examination.
56 ASIC has referred to such problems as more theoretical than practical. Senior Counsel for ASIC informed the Court that in its proceedings in GetSwift (see [44] above) no significant problems were encountered in the conduct of the hearing, even though two individual defendants were present in New York while the hearing proceeded in Sydney. If in the present case there was no practical option other than proceeding to hear the case with Mr Albanese present in New Jersey and Mr Elliott present in London, then this example might provide some comfort in proceeding as ASIC urges the Court to do. However, we do not know what difficulties might arise in the particular circumstances of the present case and the reality is that proceeding in the way that ASIC contemplates is not the only practical case management option available to the Court.
57 Thirdly, the physical and mental demands placed on Mr Albanese and Mr Elliott would likely be exacerbated by the need to confer with their respective legal representatives at the end of each hearing day. This could be ameliorated by holding early morning conferences (Sydney time) the following day, but this may impede the timely giving and receipt of instructions and may impose its own burdens on counsel and solicitors in preparing for the case that day, when other matters may be pressing on their minds.
58 Fourthly, Mr Albanese's and Mr Elliott's close engagement with the hearing as it unfolds will be important in arriving at a decision whether either or both of them will give evidence. Each may elect not to give evidence. But should either or both of them elect to give evidence, then a question will arise as to how the giving of that evidence is best managed. Clearly, it would be inappropriate to require that they give evidence, and be cross-examined on that evidence, in the middle of the night (their time). Moreover, each should be afforded the benefit of hearing the evidence of the other in real-time. ASIC argues that these difficulties can be overcome with the expedient of the Court altering its sitting hours. This, of course, can be done within reason. Once again, there are limits. Endeavouring to solve one time problem may only work to create another one. ASIC argues that Mr Albanese can be accommodated by the Court sitting early. This would be of some benefit to Mr Albanese, although not a complete answer. It would be of no real benefit to Mr Elliott. ASIC argues that Mr Elliott can be accommodated by the Court sitting late. This would be of some benefit to Mr Elliott, although not a complete answer. It would be of no real benefit to Mr Albanese.
59 Fifthly, it bears repeating that the allegations against Mr Albanese and Mr Elliott are very serious, with potentially very serious consequences for them should liability be established. The case is undoubtedly complex. Their need for as much real-time personal engagement as is possible with their legal advisers is warranted and should be given significant weight.
60 I should record that, in its submissions, ASIC properly raised for consideration the impact that vacation of a seven-week hearing might have on the orderly disposition of the Court's other case load. As matters presently stand, there are cases in my docket that are ready for hearing which can, conveniently, be listed for hearing in the March/April 2021 period.