Kirby v Centro Properties Limited

JUDGE: GORDON J DATE OF ORDER: 7 FEBRUARY 2012 WHERE MADE: MELBOURNE

1. The First and Second Respondents' oral application for the evidence of Richard Norman Gore and Glenn Rufrano to be given by video link is dismissed.
2. The First and Second Respondents pay the Applicants' costs and the Cross Respondents' costs of and incidental to the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1028 of 2010

JUDGE: GORDON J DATE OF ORDER: 7 FEBRUARY 2012 WHERE MADE: MELBOURNE

1. The First Cross Respondent's oral application for the evidence of Richard Norman Gore and Glenn Rufrano to be given by video link is dismissed.
2. The First Cross Respondent pay the Applicant's costs and the Respondent's costs of and incidental to the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1041 of 2010

JUDGE: GORDON J DATE OF ORDER: 3 FEBRUARY 2012 WHERE MADE: MELBOURNE

1. The oral application for the evidence of Richard Norman Gore and Glenn Rufrano to be given by video link made by the Cross Respondents to the Third Further Amended First Cross Claim is dismissed.
2. The Cross Respondents to the Third Further Amended First Cross Claim pay the Applicants' costs and the Respondent's costs of and incidental to the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 326 of 2008

AND: CENTRO PROPERTIES LIMITED (ACN 078 590 682)

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 366 of 2008

AND: CENTRO PROPERTIES LIMITED (ACN 078 590 682)

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1028 of 2010

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1041 of 2010

JUDGE: GORDON J DATE: 7 FEBRUARY 2012 WHERE MADE: MELBOURNE

INTRODUCTION 1 Centro Properties Limited and CPT Manager Limited (collectively CNP) sought an order pursuant to s 47A(1) of the Federal Court of Australia Act 1976 (Cth) that the evidence of Messrs Richard Norman Gore and Glenn Rufrano be given by video link. Both have sworn an affidavit which was filed on behalf of CNP and upon which CNP intends to rely at trial. Mr Gore resides and works full time in London. Mr Rufrano resides and works full time in New York. In support of the application, CNP filed two affidavits - an affidavit of Jonathon Kramersh in relation to Mr Gore and an affidavit of Neil Jack in relation to Mr Rufrano. The application was opposed by the Applicants and by PricewaterhouseCoopers (PWC). 2 For the reasons that follow, I would dismiss both applications.

RELEVANT PRINCIPLES 3 Evidence at trial is given orally in Court. It now not uncommon in modern litigation for there to be a request that evidence be given by video link. Competing views have developed. In exercising the discretion to permit testimony by video link, the Courts have adopted two broad approaches: see Australian Competition & Consumer Commission v StoresOnline International Inc [2009] FCA 717 at [11]. 4 The first is that given the advanced state of video link technology and also because of the convenience of the procedure and the savings in time and cost, a substantial case needs to be made out to warrant the Court declining to make an order for evidence to be taken by video link: see Reinsurance Australia Corp Ltd v HIH Casualty & General Insurance (in liq) [2002] FCA 1549 at [10]-[11]; Versace v Monte [2001] FCA 1454 at [16] and Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 at [25]. 5 The other approach has been described as more cautious, and requires good reason to be shown before leave to give evidence by video link is granted: Australian Competition & Consumer Commission v World Netsafe Pty Ltd [2002] FCA 526 at [7]; Sunstate Airlines (Qld) Pty Ltd v First Chicago Australian Securities Ltd (unreported, NSWSC, Giles CJ, 11 March 1997) at 6; Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd (2001) 53 NSWLR 1 at [27]. 6 A number of Courts have sought to resolve these approaches. In Australian Securities and Investments Commission v Rich (2004) 49 ACSR 578, Austin J said at [43] that: It seems to me that these conflicting approaches can be resolved by adopting two principal propositions. First, the court should strongly encourage the use of current-generation electronic aids to its work, provided they are cost-effective and their reliability has been adequately established, recognising that a technological innovation which saves time and money may be acceptable even if it delivers a product not quite as good as the traditional alternative. Second, there will be exceptional cases where, presented with a choice between taking evidence by electronic means or using the tried and true viva voce method, the court will decide there are good grounds for proceeding by viva voce evidence. 7 In StoresOnline International Inc at [14], Edmonds J agreed with Austin J and added that each case will turn on its own facts and circumstances, and that at the end of the day, the exercise of discretion as to what is appropriate in a particular case will involve a balancing exercise as to what will best serve the administration of justice consistently with maintaining justice between the parties. 8 In Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152, Buchanan J reviewed the cases and concluded at [77]-[78] as follows: … I think there is a significant difference in emphasis in the two lines of authority. One, essentially pragmatic, matter which arises from the differences of view to which I have drawn attention is where the practical onus of persuasion lies. Despite the undoubted efficiencies available in an appropriate case, the trend of authority seems to me to emphasise the need for a persuasive case to be made out to use a video link to take evidence, particularly to impose it on an unwilling cross-examining party, rather than the reverse. I share the concerns expressed by Spender J in World Netscape and by Stone J in Dorajay about the limitation on the effectiveness of video link arrangements as a means of taking oral evidence. I am particularly troubled by the prospect (or possibility) that the cross-examination of an important witness might be rendered less effective by the limitations of video link technology or the absence of the witness from the courtroom. Although the days are gone when witnesses are expected to feel any sense of intimidation as an aid to telling the truth, there is no doubt in my mind that the requirement to give evidence on oath or affirmation in the (generally) solemn atmosphere of a courtroom in the presence of a judge, and to answer questions in cross-examination in the presence also of cross-examining counsel, has at least three potential benefits. It enhances the prospect that the witness will remain conscious of the nature and solemnity of the occasion and of his or her obligations. It affords the cross-examiner some reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party. It provides the Court with a more satisfactory environment in which to assess the nature, quality and reliability of responses by a witness, both to questions and to the overall situation presented by the necessity to give evidence in court. To my mind there remains, even in the modern context, a certain "chemistry" in oral interchanges in a courtroom, whether between a judge and counsel (or other representative) or between cross-examiner and witness. I would not wish too lightly to deprive a cross-examiner of that traditional forensic element in the exchange although, as the cases universally make clear, the Court must now, if asked to do so, balance the interests of a cross-examining party against claimed inconvenience both in individual cases and with respect to individual witnesses. Notwithstanding the increased availability and use of video link technology, in my view, a case must be made out for the use of video link evidence if it is opposed by an affected party. … (Emphasis added.) 9 Most recently, in Blackrock Asset Management Australia Services Limited v Waked (No 2) [2011] FCA 479 at [46], Perram J referred to the decision of Buchanan J in Campaign Master and described the matters raised by Buchanan J as "powerful considerations". His Honour stated further that: A trial is, in fact, a public event in which witnesses are confronted by their cross-examiners and in which they give evidence in front of the very people who are involved in the case. The giving of evidence by video link is unsatisfactory in a number of ways. That is not to say that in some cases it is not appropriate. 10 Putting the differences in approach to one side, the Courts have taken into account a number of factors in exercising its discretion under s 47A(1) of the Act including: 1. the employment commitments of an overseas witness: see, for example, Reinsurance Australia Corp at [4]; 2. whether the credibility of the witness is in issue: ASIC v Rich at [28]; Australia Medical Imaging at [27]; Sunstate Airlines (Qld) at 6 and Lamesa Holdings BV v Commissioner of Taxation (unreported, FCA, Sackville J, 30 July 1998) at [6] ; 3. whether the witness' evidence will be "centrally important" to the case: see, for example, StoresOnline International Inc at [15] and ASIC v Rich at [22] and [28]; 4. whether the use of video link may frustrate or delay the management of documents in cross examination: see, for example, ASIC v Rich at [31]. See also ASIC v Rich at [19]. It was common ground that while these factors may weigh into the balancing exercise, they are neither exhaustive nor prescriptive: see ASIC v Rich at [28]. 11 There is little to be gained by adding another or different gloss on the state of the authorities. In the end, each case will turn on its own facts and circumstances and the exercise of discretion as to what is appropriate in a particular case will involve a balancing exercise as to what will best serve the administration of justice consistently with maintaining justice between the parties. All modern Courts seek to limit the costs of litigation. One cost is in requiring a witness, especially a witness who is not a party, to travel to Australia to give viva voce evidence. Whether that cost can be minimised by giving that evidence by video link, as has been said, will need to be assessed not just on a case by case basis but also on a witness by witness basis.

Mr Gore 12 Mr Gore lives and works full time in London. He is no longer an employee of CNP. The affidavit evidence disclosed that Mr Gore now occupies a senior position with a private equity fund manager in London and that the weeks between March and May 2012 are the busiest and most crucial period in his current position as the reporting period for the 75 managed funds for both the United Kingdom and Hong Kong entities is due in April 2012. In particular, the evidence disclosed that between March and May 2012, Mr Gore "will be responsible for co-ordinating 75 fund audits and statutory reports with various different auditors" as well as work on the monthly reporting to the owners of the business. 13 The affidavit evidence did not state that Mr Gore could not attend to give evidence. At its highest, the affidavit stated that Mr Gore "would suffer significant inconvenience if he was not permitted to give evidence by video link". The other matters raised in the affidavit in support of the stated inconvenience were: 1. Any absence from work in this period would put excessive pressure on Mr Gore's team members and impact on the smooth running of the reporting process; and 2. Mr Gore's absence from the United Kingdom during this period would also hinder his renewal process for his Tier 1 visa in the United Kingdom. 14 Against that stated background, it is necessary to turn to consider his anticipated evidence and the currently perceived significance of it at trial. 15 It was common ground that I should have regard to the contents of Mr Gore's affidavit in considering this application. The affidavit comprises 47 paragraphs and identifies 13 discovered documents. Mr Gore deposes to joining Centro Properties Group in about July 2003 and, from February 2006 until March 2008, being a Financial Accounting Manager of CNP reporting to the then Group Financial Accounting Manager. Mr Gore describes his principal responsibility in that role was to "prepare the financial statements for Centro Properties Limited and its controlled entities and to prepare monthly management accounting reports for the Board of CNP". Mr Gore deposes that he was not responsible for the preparation of the financial statements for CER. 16 Mr Gore's affidavit is structured as follows: 1 Background, qualifications and job description 3 2 Method of preparing CNP's accounts 4 2.1 Template 4 2.2 Source of information regarding CNP debt 5 3 The audit 6 4 CNP audit and the JPM Domestic Bridge 7 5 CNP's investment schedule 9 6 Guarantees 10 7 CNP forecasts - borrowings, interest and margins 10 8 Super LLC debt allocation 13 17 CNP accepts that Mr Gore's evidence is significant. It is common ground that his evidence goes to (1) the preparation of CNP's accounts, (2) the identification of the misclassification of the JP Morgan Bridge facility in late August 2007 and (3) the calculation of interest costs for the purposes of CNP's DPS forecasts. However, CNP submitted that notwithstanding the "significance" of Mr Gore's evidence, it is not "centrally important" to the case. 18 In support of that latter contention, CNP submitted, in relation to (a), that CNP admits its 2007 financial reports misclassified CNP's interest bearing liabilities and that Mr Gore's evidence in relation to the preparation of CNP's accounts was therefore unlikely to be contentious. In relation to (b), CNP submitted that there was no indication in the lay evidence filed by the parties to suggest that Mr Gore's evidence will be contentious or that his credit will be in issue. In relation to (c), CNP submitted that while the issue may be contentious it does not give rise to any issues of credit. 19 As noted above, the application was opposed by the Applicants and PWC. Each submitted that Mr Gore's evidence was both central to the resolution of some of the major issues in dispute, was contentious and involved issues of credit. In support of those submissions, Mr Lee SC, Counsel for the Kirby parties, identified three principle matters. First, from February 2006 to March 2008, Mr Gore was the financial accounting manager of CNP who principal responsibility was to prepare the financial statements and monthly board management accounts for CNP. Mr Gore gives evidence about how those accounts were prepared. Why then is that evidence so important? It is the monthly board management accounts of CNP (unlike the financial statements) which the Applicants allege had the debt maturity information which is defined as the Liability Information: see, by way of example, paragraph 17 of the Fourth Further Amended Statement of Claim (the FFASC). The difficulty, as identified by the Applicants, is that on the case as currently pleaded, CNP's defence does not admit that the Liability Information was known or ought to have been known (see [18] and [30] of the First and Second Respondents' Defence to Applicant's Amended Third Further Amended Statement of Claim dated 7 October 2011 (the CNP Defence). 20 There are other issues with the accounts prepared by Mr Gore. One concerns whether CNP had any obligation to combine the financial statements of CNP and/ or CER and Super LLC (see [17] and Section U of the FFASC). It is an important issue. On the case as currently pleaded, CNP denies that the accounts of Super LLC should have been consolidated into CNP's accounts (see [17] and Section U of the CNP Defence). 21 Another issue with the accounts concerns the CNP Audit and what is defined in paragraph 60 of the FFASC as the JP Morgan Current Liability which is the subject of further claims against PWC in Section S of the FFASC. Mr Gore gives evidence about this issue. In fact, Mr Lee SC handed to the Court a chart which identified paragraphs of Mr Gore's affidavit which they submitted should be given viva voce. Those paragraphs appear under the heading "CNP Audit and the JPM Domestic Bridge". The first paragraph, [17], sets out Mr Gore's recollection of a query raised with him by a member of the PWC audit team (a Mr Duggan) about the JP Morgan Bridge Facility and an email he sent to another person at PWC, a Ms Evans. The second paragraph, [20], records Mr Gore's recollection of a discussion he had with Mr Nenna about the classification of the JP Morgan Bridge Facility and subsequent discussions Mr Gore then allegedly had with Mr Duggan and Ms Evans of PWC. 22 There is however another issue addressed by Mr Gore in his evidence at paragraph 24. Mr Gore deposes to attending the September 2007 meeting of the Board Audit and Risk Management Committee of Centro Properties Group (BARC). There is currently an issue about whether those present at that meeting were or were not told about the misclassification of the JP Morgan Current Liability. Mr Gore's affidavit deposes that he does not recall anyone drawing BARC's attention to the reclassification of the JP Morgan Bridge Facility during the course of the meeting. Mr Cougle of PWC's evidence is to the contrary. 23 As is apparent, Mr Gore's evidence is important. He had direct involvement in many of the central issues in the case. Counsel for the Kirby parties estimated that Mr Gore would be cross examined for about 1 day. Counsel for PWC estimated that they would cross examine Mr Gore for about 2 hours. Of course, given the state of preparation, those times can only be estimates. 24 Given the nature of the evidence to be called, its likely complexity and the length of the cross examination, I am not presently persuaded that it is appropriate for Mr Gore to give his evidence by video link. The issues are central, the evidence complex and people's recollections are to be challenged. Mr Gore's evidence is not that he cannot attend, just that it is inconvenient. In the interests of justice, I consider that the Mr Gore's inconvenience of attending in Australia to give evidence viva voce does not outweigh the downsides of Mr Gore giving such important and complex evidence by video link. The reference in [14] above to "the currently perceived significance" of Mr Gore's evidence is important. The trial has not yet commenced and, with any large trial, issues may narrow or other things occur before Mr Gore is called to give evidence which may necessitate a further application for the evidence to be given by video link.

Mr Rufrano 25 Mr Rufrano lives and works in New York. He presently is the Chief Executive Officer (CEO) and President of Cushman & Wakefield, a global real estate services firm based in New York with offices in more than 30 countries (including Australia) and more than 14,000 employees. In his role as CEO, Mr Rufrano is required at any one time to oversee a large number of transactions globally and to travel frequently between Cushman & Wakefield's offices around the world. 26 Again, the affidavit evidence did not state that Mr Rufrano could not attend to give evidence. At its highest, the affidavit stated that "if he was required to travel to Australia to give evidence in person this would cause him, significant inconvenience and require him to reschedule work commitments and travel obligations". 27 Against that stated background, it is necessary to turn to consider his anticipated evidence and the currently perceived significance of it at trial. 28 It was common ground that I should have regard to the contents of Mr Rufrano's affidavit in considering this application. The affidavit comprises 287 paragraphs over 84 pages and identifies countless discovered documents. 29 Mr Rufrano deposes to being the CEO of Centro Properties Group from January 2008 until February 2010. Immediately before that appointment, Mr Rufrano was the CEO of Centro's US operations from 20 April 2007 until 15 January 2008. He joined Centro on 20 April 2007 after Centro acquired New Plan Excel Realty Trust. Mr Rufrano had been CEO of New Plan since March 2000. 30 Mr Rufrano's affidavit is structured as follows: 1 Background 4 2 Responsibility of Refinancing 5 3 Acquisition of Preston Ridge 6 4 Heritage Bonds 7 5 Acquisition of Galileo Funds Management 8 6 Stage 1 Refinancing 8 7 Stage 2 Refinancing 15 7.1 August 2007 15 7.2 September 2007 21 7.3 October 2007 28 7.4 November 2007 42 7.5 December 2007 64 31 CNP again accepts that Mr Rufrano's evidence is important and goes to a contentious issue. It is primarily concerned with the refinancing negotiations of the Centro Group's US facilities that fell due in December 2007 and which are referred to as the Super LLC facilities. It appears to be common ground that Mr Rufrano was closely involved in negotiating the refinancing of those facilities with various financiers and prospective financiers over an approximately nine month period. The Applicants allege that CNP was required to disclose to the market (under its continuous disclosure obligations contained in, inter alia, s 674(2) of the Corporations Act 2001 (Cth)) that there was a real risk that CNP would not be able to refinance the facilities that fell due in December 2007, either at all or on reasonable commercial terms. Part of CNP's defence is that CNP had a reasonable and honest belief and a reasonable opinion that it could refinance the facilities that fell due in December 2007. Given Mr Rufrano's involvement in the negotiations, it is unsurprising that his evidence is likely to be significant in the resolution of that issue. CNP submitted that it will need to establish that the opinion was formed and that that opinion was reasonably based upon fact. Mr Garner for CNP informed the Court that there are a large number of documents covering nine months of negotiations between various CNP Officers and numerous financiers in relation to multiple facilities that CNP will seek to tender to make good their defence. 32 Mr Rufrano's evidence is important. He has direct involvement in a central issue in the case. Counsel for the Kirby parties and for PWC submitted that Rufrano's cross examination would be extensive. That cross examination will no doubt seek to test his knowledge and understanding at various points in time and by reference to the documents that CNP intend to seek to tender. 33 Given the nature of the evidence to be called, its likely complexity and the length of the cross examination, I am not presently persuaded that it is appropriate for Mr Rufrano to give his evidence by video link. The issues are central, the evidence complex and his recollections are to be challenged in relation to a wide range of negotiations over a not insignificant period of time. Mr Rufrano's evidence is not that he cannot attend, just that it is inconvenient and would require him to reschedule work commitments and travel obligations. In the interests of justice, I consider that the Mr Rufrano's inconvenience of attending in Australia to give evidence viva voce does not outweigh the downsides of Mr Rufrano giving such important and complex evidence by video link. As is the position with Mr Gore, if the position changes before Mr Rufrano is called to give evidence, it may necessitate a further application for the evidence to be given by video link. 34 I will dismiss the applications and order CNP to pay the Applicants' costs and PWC's costs of the application. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.