The application to transfer the matter to the Brisbane registry
5 On 6 May 2020 the matter was transferred to the Western Australian registry and allocated to me for hearing. This occurred because at that time, due to the SARS-CoV-2 (coronavirus) pandemic, the court was only conducting in-person hearings in exceptional circumstances: see the court's Special Measures Information Note, Special Measures In Response to COVID-19 (SMIN-1). So any hearing out of either the Queensland or the Western Australian registry would inevitably have been held via video or audio link technology. That being the case, there would have been no difference to the parties if the matter was heard by a judge based in Queensland or a judge based in Western Australia. Either way, the hearing would not be in person. The court is a national court and the efficient allocation of resources was thought at the time to warrant the proceeding being transferred to the Western Australian registry.
6 Shortly after that occurred, Mr Davidson became represented by a solicitor, but that solicitor has since filed a notice of ceasing to act, so Mr Davidson represents himself. Mr Davidson's basis for the application for an in-person hearing is that he would be better able to see what the judge and counsel for Suncorp-Metway are saying and doing, and so will not make what he described as the mistake of interfering with what people are saying, which is easier to do when the matter is heard by audio link.
7 Mr Davidson also submitted that there is a lot to be said in relation to this matter, which he said has destroyed his life and that of his wife and children. Mr Davidson had also indicated in email correspondence with the court that he does not have a laptop computer to enable a video link and he would have difficulty maintaining an audio link by telephone because he lives in the Tablelands in a mountainous area high above sea level with only intermittent phone connections. Mr Davidson also indicated that he had been ill and has put a medical certificate into evidence, which indicates that he possibly has a viral illness, although he has subsequently confirmed that he has received a negative test for the coronavirus, indicating that he does not have that particular illness.
8 Other than the medical certificate, however, Mr Davidson has not put any materials into evidence as to audio-visual link difficulties or anything else relevant to his illness. My chambers made it clear to him in email correspondence that he would need to do so if he wished to rely on those matters for the purpose of this interlocutory application. Mr Davidson seeks an opportunity to do so after today's hearing, but the matter has been listed for today, so that the question of where the matter will be heard can be determined in time for the final hearing to proceed next Thursday if the court determines that is appropriate to occur. I will not give Mr Davidson leave to put on further evidence relevant to the interlocutory application after today's date.
9 Mr Davidson has also indicated that he considered that he has a right to an in-person hearing. That is, with respect, not correct. There is no unqualified and absolute right to an in-person hearing, because s 47A and s 47B of the Federal Court of Australia Act 1976 (Cth) permit the court to order that evidence and submissions be made over video or audio links, and the court has power to do that on the application of a party, or on its own initiative. Section 47C of the Act, however, sets out certain conditions that must be satisfied before an order under s 47A or s 47B are made. In broad terms, the conditions are that the court must be satisfied that if the matter proceeds by video link or audio link that all eligible people, both in the court room and at remote locations, are able to see and hear each other.
10 In my view, that condition is satisfied here, at least in relation to an audio link. There has been no difficulty in hearing Mr Davidson or being heard by him today. He has said that is because the weather in his current location is clear, enabling the mobile phone connection to work well, and has said that the connection would probably drop out if the weather became rainy, for example. Once again, there is no evidence of those matters; they come, notionally, 'from the bar table'. All the court can, therefore, go on is the fact that the connection today has been loud and clear. It is conceivable that if the matter does proceed next Thursday by audio link the connection may not be as good, but, in my view, that is a matter which the court can deal with on the day if it does, indeed, become an issue.
11 As for illness, Mr Davidson did not submit that it would interfere with his preparation for the hearing or that it was causing any other difficulties, other than that it might lead his voice to run out. Rather, it would be fair to summarise the basis of Mr Davidson's application for the matter to be transferred to Brisbane as being a level of discomfort with proceeding by audio link in view of the importance of the matter to him. The court is sympathetic to those concerns and does not discount them as trivial. However, the business of the court does need to proceed in the current public health emergency and it is my view that there is nothing in the nature of this proceeding which means that the matter cannot proceed satisfactorily by way of audio link. This court and other courts have been regularly hearing substantial matters in that way and, provided the court is satisfied that it can be done without practical injustice to all concerned, in my view it is appropriate that the court does proceed that way: see JKC Australia LNG Pty Ltd v CH2 Hill Companies Ltd [2020] WASCA 38 at [15]. Counsel for Suncorp-Metway has submitted that this proceeding is an application for preliminary discovery, which typically would be resolved quickly and can be determined on the basis of submissions of the parties and affidavits filed, without the need for oral evidence which might raise issues concerning credit and which in some circumstances may make it unsatisfactory to proceed, certainly by audio link. That submission is correct.
12 The matter has been on foot since the beginning of the year and, while part of the delay is, no doubt, attributable to the public health emergency, there have also been other reasons such as changes in solicitor by the prospective applicants, which have contributed to the delay. In my view, the matter should not be delayed any further without very good reason, and I am not satisfied that good reason has been shown in the present case. In particular, it appears to me that the hearing will be able to proceed fairly to all parties via audio link.
13 For those reasons, paragraphs 1 and 2 of the interlocutory application are dismissed. There will be an order directing the parties to appear at the hearing on 2 July 2020 by audio link for the purposes of making submissions.