Consideration
25 There are several matters relevant to the exercise of the discretion here, including two particular circumstances in the present case which weigh most heavily in that exercise. They are on opposite sides of the balance.
26 The first matter of particular significance is that, in my view, there is a real risk that Mr Wilson will not have a fair and proper opportunity to test the evidence of Dr Castella if that evidence is not given in person. This is a proceeding in which allegations are made of serious misconduct on Mr Wilson's part, which if made out could result in orders for a pecuniary penalty and disqualification against him. Both parties accept, at the least, that the outcome on a critical issue relies to a significant extent on Dr Castella's evidence. It is likely that when Mr Wilson learned of the proposed termination of the Galderma supply agreements, and when and how much he knew about the actual termination, will be central. It is common ground that the credibility of Dr Castella's evidence about that is likely to be in issue.
27 It does not necessarily follow from those matters alone that cross-examination by video link would be unsatisfactory. But it is also necessary to consider the nature of Dr Castella's evidence in this particular case. It is contained in two affidavits that ASIC has filed. Its tenor is that Dr Castella had several conversations with Mr Wilson during the period November 2016 to February 2017 about the termination of the Galderma supply agreements. Importantly, those conversations did not result in or coincide with any written record of Dr Castella's communications with Mr Wilson on the subject during the relevant time. The evidence of relevant written communications between the two men in the key period is confined to one unclear reference in an email to what, according to Dr Castella, is the subject of the termination of the Galderma agreements. There are also some text messages and further emails that may be relevant, but they date from April to June 2017, after Mr Wilson resigned as a director of Quintis.
28 The almost complete absence of any relevant written communications between Mr Wilson and Dr Castella during the crucial period needs to be assessed against Dr Castella's evidence that, at Mr Wilson's request, he did not email or otherwise send a copy of the Galderma termination agreement to Mr Wilson, but gave a copy of the agreement to Mr Wilson personally when he came to Perth for a Quintis board meeting in February 2017. That is in the context of allegations that the board did not find out about the agreement until May 2017.
29 It is therefore possible that the evidence of Dr Castella will be important to the outcome of the case in circumstances where it will not be possible to test or assess it by reference to the documentary record in any direct way. And the very reason why there are so few directly relevant written communications will be an issue in the case. Questions of demeanour and the intangible but important aspects of cross-examination described by Buchanan J in Campaign Master may be influential.
30 ASIC's submissions said that Mr Wilson did not identify any specific prejudice if the evidence is adduced by video, but senior counsel for Mr Wilson did point to the relative paucity of the documentary record for the purposes of cross-examination, to which I have referred. Senior counsel for ASIC also submitted that cross-examination by video of crucial witnesses in matters which may result in the imprisonment of an accused person regularly happens in courts in Western Australia and elsewhere. I understood counsel to be referring to criminal cases where vulnerable witnesses such as children or the victims of alleged sexual assaults are cross-examined in this manner: see, e.g., Evidence Act 1906 (WA) s 106N, s 106R. However that occurs as a result of judgments as to justice and policy relevant to those kinds of situations, and I do not consider that it provides much assistance in determining what is in the interests of justice in this different kind of case.
31 The time difference between Perth and Texas is also relevant here. Depending on the time of year, Texas will be between 12 and 13 hours behind. That means that Dr Castella's evidence will need to be taken at a time which will be evening in one place and early morning in the other. The possible need for Dr Castella to be cross examined for an extended period of time, and the possible difficulties in achieving that which may arise, mean that the importance of the time difference goes beyond mere inconvenience. The potential impact of all these factors on the cross-examination of Dr Castella, in the context of the importance and particular nature of his evidence, provides a strong reason why the trial should not proceed unless his evidence is given in person.
32 The other matter of particular significance, which points the other way, is the effect that it will have on the progress of the matter to trial if Dr Castella's evidence is not permitted to be taken via video link. Evidence has been adduced of travel restrictions resulting from the pandemic which are likely to mean that he will not be able to travel to Australia in the foreseeable future: see Haiye Developments Pty Ltd v The Commercial Business Centre Pty Ltd [2020] NSWSC 732 at [26]-[32], [38]. When those restrictions will ease so as to permit him to come to Perth is unknown. ASIC's senior counsel confirmed that the trial cannot proceed unless Dr Castella gives evidence, and given the importance of his evidence that is not surprising. So the effect of dismissing the present application will be to postpone the trial of the proceeding for an unknown period of time.
33 The importance of resolving disputes expeditiously is reflected in the overarching purpose of the civil practice and procedure provisions in s 37M(1) (although it is expressed in terms of the overall objective to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently 'as possible'). The nature of the matter as a regulatory proceeding adds to the importance of determining it promptly: see Getswift at [38]. ASIC submitted, and I accept, that this is especially so where, as here, an order for the disqualification of Mr Wilson from managing corporations is sought. The purpose of an order of that kind is to protect the public and consumers, creditors, shareholders and investors who deal with companies (Re HIH Insurance (in prov liq); Australian Securities and Investments Commission v Adler [2002] NSWSC 483; (2002) 42 ACSR 80 at [56]). So if it turns out to be appropriate to make a disqualification order in this case, it should be made without undue delay. Further, there is the broader consideration, important to the administration of justice, that the overall work of the court should proceed and must not be suspended by reason of the pandemic, except to the extent necessary.
34 How should the court resolve these conflicting imperatives? There was some discussion in the course of oral submissions as to whether the question of risk of injustice to Mr Wilson was a threshold one, so that if a certain level of that risk was found to exist, it must necessarily follow that the orders sought should be denied. Dicta of Lee J in Getswift at [9] and [25] can be read to suggest that is so. However senior counsel for ASIC submitted that there was no threshold question of that kind, and that the court must undertake a balancing exercise, taking into account all relevant considerations in order to determine whether the discretion under s 47A of the Federal Court Act should be exercised. ASIC also submitted that the question of disadvantage is not all one way, so that it is possible that if seeing Dr Castella by video rather than in person makes it harder to assess his credibility, that may disadvantage ASIC just as it may disadvantage Mr Wilson. A submission to a similar effect was made about the time difference. ASIC submitted that while Mr Wilson is entitled to a trial that brings about a just resolution of the matter, he is not entitled to a perfect trial, and any trial must adjust to the circumstances that exist within the community at the present. The requirement to do justice is a requirement to do justice to all parties.
35 I accept that the statutory discretion conferred by s 47A of the Federal Court Act and confined and informed by s 47C and s 37M is not subject to any express or necessarily implied condition that it cannot be exercised if there is some particular level of risk of injustice to one of the parties. It would be incorrect and unhelpful to seek to confine the discretion by imposing some threshold, not expressed in the statute, that requires the court to state a test as to a particular level of disadvantage to a party. In Getswift, Lee J was not considering the specific discretion imposed by s 47A, and in any event nothing in his Honour's decision suggests that, in civil cases at least, there is some immutable prerequisite that must be met before a trial can proceed.
36 While it is difficult to conceive of how it could ever be appropriate to proceed where the result will be that injustice is done to a particular party, that assumes that the question of injustice points in one direction only. There can be circumstances where effectively denying the other party the ability to proceed to trial for an indefinite period of time can produce significant injustice to that party as well. I accept that the process of deliberation required in order to exercise the discretion properly is accurately described as a balancing exercise.
37 Nevertheless, on the interlocutory application considered in light of the circumstances as they are presently known, I do not consider that it would be appropriate to proceed to trial on the basis that Dr Castella's evidence be given by video. There is no precise standard to be applied; here it is enough to say that for the reasons I have given, the risk is real that the trial will not be a fair one because Mr Wilson will not have a proper opportunity to cross examine Dr Castella. In JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [2020] WASCA 38 at [15] the Court of Appeal of Western Australia said that '[j]ustice must not only be done but be seen to be done. But in the circumstances of this appeal hearing, for the reasons already given, we were unable to perceive any real risk of practical injustice in proceeding with an appeal hearing by telephone'. I perceive such a risk in the different circumstances here.
38 The choice between taking that risk and postponing the trial for an indefinite period is an invidious one. But in view of the particular characteristics of Dr Castella's possible evidence to which I have referred, I consider that on what is known at present, the risk of injustice to Mr Wilson outweighs the risk of injustice to ASIC and any resulting harm to the public interest. It is simply not clear how long the trial will be delayed. I may be a matter of months, it may be longer. It is relevant that no listing for trial has occurred, so there is no need to vacate particular dates with the inconvenience and wasted costs that would inevitably follow. It is also relevant that while ASIC has, rightly, placed emphasis on the public interest in proceeding to trial quickly, it has not pointed to any particular prejudice that it will suffer as a litigant or that will be suffered by any other person. There was no suggestion, for example, that Dr Castella's apparent willingness to give evidence was subject to a requirement that it be by video, or that it take place before any particular time, or that he would not be compellable as a witness if he did not consent to give evidence in a particular way.
39 For these reasons the application for Dr Castella's evidence to be adduced by video link is dismissed. Since ASIC's position at present is that the trial will not proceed in his absence, there is no utility in making similar orders in respect of the other witnesses or for the appearance of counsel, and the application for those orders will also be dismissed. There is also no utility at present in making other case management directions that ASIC seeks.
40 However, as Mr Wilson's counsel accepted, circumstances may change. As time progresses, the likely time frame of the impact of the pandemic on travel arrangements will become clearer. In my view it is appropriate to adjourn the case management hearing for a period of approximately two months so that the position may be reassessed at that time. For that reason, the application will be dismissed with general liberty to apply, so that when it becomes appropriate to reconsider the issue, that can be done without the need for a fresh application.
41 While ASIC is presently unsuccessful, the interlocutory application was necessary due to circumstances beyond either party's control. The competing considerations on each side were strong. The appropriate order as to the costs of the interlocutory application is that they be in the cause
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jackson.