Doyle v Cooper as Liquidator of NQ Minerals PLC

1. In support of the Interlocutory Application, Mr Doyle submitted, in summary, that:
   • Mr Doyle is able to satisfy the conditions of s 47C(1)(a)(i) and (b) of the FCA Act and there is no reason to impose additional conditions under s 47(C)(1)(d) of the FCA Act.
   • The opinion that a cross-examiner might be disadvantaged by a witness giving evidence remotely no longer predominates, especially since the COVID-19 pandemic: Rowe v Queensland [2021] NSWSC 133.
   • The fears once held regarding disadvantages in the use of cross-examination via audio-visual link (AVL) (see Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2002] FCA 526; (2002) 119 FCR 303 at [7]) have not manifested in the use of online platforms. As such, such previous fears no longer hold true: Capic v Ford Motor Co of Australia Ltd [Adjournment] [2020] FCA 486 at [19]; Australian Securities and Investment Commission v GetSwift Ltd [2020] FCA 504 at [25].
   • It is in the best interests of justice for Mr Doyle not to have to travel to Australia. This is because a key aspect of Mr Doyle's case in seeking to have the bankruptcy notice set aside is that the first respondents are unable to establish that Mr Doyle has the requisite connection with Australia under s 43(1)(b) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) to attract the jurisdiction of a court of bankruptcy under that Act to make a sequestration order. One way in which the requisite connection to Australia under the Bankruptcy Act can be established is by the debtor being personally present in Australia at the time when the act of bankruptcy was committed: Bankruptcy Act s 43(1)(b)(i). It could be contrary to the interests of justice to require Mr Doyle's attendance in Australia where such attendance could be used to establish the jurisdiction of a court of bankruptcy.
   • Mr Doyle has nominated the relevant date for any act of bankruptcy as 25 June 2025. However, the first respondents have not accepted this date. It may be that the first respondents seek to nominate some other date for the purposes of any creditor's petition they might make, including the date at which Mr Doyle is present in Australia for the purposes of cross-examination in this proceeding. Despite the fact it could be inferred the first respondents would seek to rely on the act of bankruptcy as that in s 40(1)(g) of the Bankruptcy Act, they may not be limited to that act. For example, they may seek to contend that Mr Doyle committed some other act of bankruptcy at the time he is present in Australia to satisfy s 43(1)(b) of the Bankruptcy Act.
   • The prejudices outlined above outweigh any perceived forensic disadvantage to the respondents caused by Mr Doyle being cross-examined via Microsoft Teams, or a similar platform. Further, the respondents have cited vague references to the disadvantages of cross-examination via AVL, but do not elaborate on how any disadvantages will impact adversely on the Court's assessment of Mr Doyle's evidence.
   • Section 47A of the FCA Act confers a discretion on this Court so that decisions in previous cases do not assist in this matter: Jenkins v Bushby [1891] UKLawRpCh 13; [1891] 1 Ch 484, 495.
   • The respondents have not addressed the matters required to be considered under s 37M of the FCA Act and conceded in their submissions that "this is not an overly complex case" (Respondents' submissions at [10]).
   • Counsel for Mr Doyle will not read or rely on aspects of Mr Doyle's evidence that relate to a challenge of the UK Judgment or whether an act of bankruptcy has been committed at this interlocutory stage.
   • The matters for consideration in this proceeding are largely of a legal, or constructional, nature. Accordingly, it is doubtful that Mr Doyle's credit can be in issue on either basis.
   • The respondents' characterisation of the authorities is wrong. The most that can be said for the diverging authority is that different judges held different views about the exercise of discretion in different contexts, both before and after the pandemic.
   • The respondents' reliance on the view of Murphy J in Southernwood v Brambles (No 2) [2022] FCA 973 is taken out of context. Paragraph 50 of Southernwood stated:

1. The Court's power under s 47A of the FCA Act is a discretionary one. Accordingly, I am not strictly bound by precedents in this proceeding. However, it is useful to outline the approach taken by this Court, and others, on similar issues, in order to inform my exercise of discretion.
2. The use of AVL in this Court is far from a new phenomenon, nor one that came into existence as a response to the COVID-19 pandemic: see, e.g., McDonald v FCT [2000] FCA 577. In McDonald, Finn J said:

[21] As is now well known, the video-link facility is being utilised with greater regularity and acceptance in court proceedings - particularly of this Court - as judges have come to acknowledge that apprehended disadvantages from the use of video-links have not materialised as expected: see generally the discussions in B v Dentists Disciplinary Tribunal [1993] NZHC 1133; [1994] 1 NZLR 95 at 105ff and in Studniberg v J P Morgan Australia Ltd [1998] NSWIR Comm 483.

[22] Significantly, the facility has been used notwithstanding that a witness' evidence, for example, (a) was "central" to a case, (b) was contentious, (c) would be expected to occupy three to four days and (d) was to be given in a serious criminal matter: see R v Kyu Hyuk Kim [1998] VSC 215; (1998) 104 A Crim R 233. Equally judges have accepted in relation to trials that a video-link is, for practical purposes, much the same as hearing evidence in court: see Lord Donaldson MR's observations quoted in B's case, above, at 107; and that it does not pose a significant impediment to the assessment of a witness' demeanour: see B's case at 109; see also the observations of Young J in Bayer AG v Minister for Health as quoted in Studniberg's case, above. The real constraint upon the use of a video-link arises, as was identified in B's case at 107, from "the need to ensure that it is used fairly".

[19] The Respondent then submitted that the cross-examination of witnesses over video-link is unacceptable. I accept the Respondent's submission that there are many authorities in this Court which underscore the unsatisfactory nature of cross-examination by video-link: see, eg, Hanson-Young v Leyonhjelm (No 3) [2019] FCA 645 at [2] ; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; 181 FCR 152 at 171 [78]. However, those statements were not made in the present climate, nor were they made with the benefit of seeing cross-examination on platforms such as Microsoft Teams, Zoom or Webex. My impression of those platforms has been that I am staring at the witness from about one metre away and my perception of the witness' facial expressions is much greater than it is in Court. What is different - and significant - is that the video - link technology tends to reduce the chemistry which may develop between counsel and the witness. This is allied with the general sense that there has been a reduction in formality in the proceedings. This is certainly so and is undesirable. To those problems may be added the difficulties that can arise when dealing with objections.

(emphasis added).

1. On the other hand, Judges of this Court have also expressed their dissatisfaction with the use of AVL by witnesses giving evidence. In Palmer v McGowan (No 2) [2022] FCA 32, Lee J stated:

1. The observations of Lee J in Palmer have been acknowledged by this Court in several other instances: Al Muderis v Nine Network Australia Pty Ltd (No 5) [2025] FCA 908; ACN 117 641 004 Pty Ltd (in Liq) v S&P Global, Inc (No 5) [2025] FCA 687; Southernwood.
2. In Kirby v Centro Properties Ltd [2012] FCA 60, Gordon J said, after outlining relevant authorities, that:

(2002) 119 FCR 303