Traxys Europe SA v Balaji Coke Industry Pvt Ltd

REASONS FOR RULING 1 The first respondent (Balaji) has applied this morning for leave to read and to rely upon a copy affidavit affirmed by Sanjay Sureka on 7 December 2012. The original of that affidavit is not yet available, it having been affirmed in India. The applicant (Traxys) opposes leave being granted. 2 As matters presently stand, Balaji is the only active respondent in the proceeding. When the matter was called on for hearing this morning, Mr O'Neill, solicitor, who had previously represented the third respondent, Concast Exim Ltd (Concast), sought the Court's leave to file in Court a Notice of Ceasing to Act in respect of that corporation. I granted that leave to Mr O'Neill and he then withdrew from the hearing. There was no appearance on behalf of Booyan Coal Pty Limited (Booyan), which is the second respondent, nor on behalf of Concast when each of those parties was called outside the courtroom but in the precincts of the Court this morning. 3 Mr Sureka is a Director of Concast. His affidavit seeks to put into evidence material which goes to the heart of the issues raised at the hearing which I am presently conducting. 4 Traxys seeks the appointment of receivers to all of the shares held by Balaji in Booyan. Booyan is a wholly-owned subsidiary of Balaji. On 2 September 2011, the Court made freezing orders against Balaji and Booyan preventing the disposition of those shares. Those orders have remained in place continuously since 2 September 2011. At the heart of the present hearing is a contention being advanced by Balaji that it sold its shares in Booyan to Concast pursuant to a formal Share Sale Agreement dated 16 July 2011. The genuineness of that transaction is challenged by Traxys. Alternatively, Traxys seeks to set that transaction aside as a conveyance entered into for the purpose of hindering or defeating Balaji's creditors. 5 The evidence sought to be added to the body of evidence relied upon by Balaji by the affidavit of Mr Sureka is evidence which is intended to verify the existence and timing of the transaction from Concast's perspective. Ordinarily, evidence of this type would be expected to be called by Concast on its own behalf in support of its case in opposition to the case being advanced by Traxys. Unfortunately for Concast, it has never filed a Defence to Traxys' claims and, apart from attending Court via legal representatives from time to time, it has not previously sought to file evidence in support of a contention that the transaction with Balaji was genuine. The affidavit of Mr Sureka is now sought to be filed and read by Balaji in order to assist Balaji in resisting Traxys' claims. 6 These proceedings were commenced on 2 September 2011. At that time, the only respondent party was Balaji. Booyan was joined as second respondent to the proceeding on 16 September 2011 pursuant to leave granted by the Court on that day. Concast was added as a third respondent to the proceeding on 8 June 2012 pursuant to leave granted by the Court on 5 June 2012. Concast was subsequently served with the Originating Process and other material. 7 The matter has been before the Court on numerous occasions since the joinder of Concast. In particular, I conducted directions hearings in the matter on 12 July, 18 July, 8 August, 31 August, 7 September, 5 October, 31 October, 6 November, 14 November, 16 November, 20 November, 3 December and 5 December 2012. On some of those occasions, there were Interlocutory Applications of one kind or another before the Court. 8 On 5 October 2012, when the matter was listed for the hearing of an Interlocutory Application and for directions, Concast filed a Notice of Acting - Appointment of Lawyer. The taking of that step, coupled with its attendance at subsequent directions hearings, meant that Concast submitted to the jurisdiction of this Court. On 5 October 2012, Concast was represented by Counsel who attended at Court on the instructions of Mr O'Neill. This was the first occasion when Concast had appeared before the Court. On a number of subsequent occasions, Mr O'Neill appeared on behalf of Concast, although he ceased appearing after 20 November 2012. 9 On 27 August 2012, the matter was fixed for hearing today. That is more than three months ago. 10 On 31 August 2012, I set a detailed timetable, designed to ready the matter for hearing today. 11 The next listing day after 31 August 2012 was 7 September 2012. That listing was then followed by the listing on 5 October 2012. 12 On 17 October 2012, by orders which I made in Chambers on that day, I ordered Concast (among others) to file and serve its Defence to Traxys' Statement of Claim by 2 November 2012 and to file and serve any Cross-Claim which it was advised to make by the same date. In addition, I ordered the respondents (which included Concast) to file and serve by 23 November 2012 any further affidavit evidence upon which the respondents proposed to rely at the final hearing of the remaining claims for relief made by Traxys. I had previously ordered the respondents to file evidence by an earlier date. In particular, on 12 April 2012, Balaji had been ordered to file and serve its evidence by 4 May 2012 but had received the benefit of extensions on 31 August 2012 and on 17 October 2012, the last of which expired on 23 November 2012. 13 It is sufficient to observe that Concast did not file any Defence, nor did it file any affidavits, notwithstanding the terms of the orders which had been made. 14 There is no explanation, let alone a satisfactory explanation, proffered to the Court by Balaji as to why the proposed evidence from Mr Sureka was not prepared, filed and served much earlier than now. The case has been fixed for hearing for more than three months and it is incumbent upon a party in the position of Balaji, in the circumstances in which Balaji now finds itself, to explain in a satisfactory manner why this material was not made available much earlier. Mr Sureka appears to be a close business associate of Naresh Sharma, the Chairman and CEO of Balaji. This does not appear to be a case where the proposed witness was not prepared to co-operate with and assist the party seeking to call him. 15 I would reject the affidavit on the ground that it has been brought forward far too late. 16 However, the difficulties created by the late service of Mr Sureka's affidavit are exacerbated by the additional circumstance that Balaji not only seeks to read and rely upon Mr Sureka's affidavit but has informed the Court that Mr Sureka is not present in Australia, is not planning to come to Australia in the immediate future and is only prepared to offer himself for cross-examination by way of video link or telephone. 17 Parties do not have a right to have evidence given or, indeed, applications conducted, by way of video link. The use of the Court's video link facilities is a matter for the Court and is not to be presumed by parties. In a case (such as the present case) where the evidence proposed to be given is central to a party's case and where the credibility of the witness is very much in issue, there would need to be other powerful factors in favour of allowing a party to present a witness for cross-examination by way of video link. There are many good reasons why cross-examination should be conducted in the presence of the judge, with all of the attendant advantages for the Court in such a process. These matters have been discussed in a number of cases in this Court (for example, by Perram J in Blackrock Asset Management Australia Services Limited v Waked (No 2) [2011] FCA 479 at [45]-[47]; Buchanan J in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 at 170-171 ([77]-[78]); and Gordon J in Kirby v Centro Properties Ltd (2012) 288 ALR 601 at 603-605 ([3]-[11])). 18 In my view, even if I were otherwise disposed to allow the affidavit to be deployed, the fact that Mr Sureka is not prepared to make himself available in Australia to be cross-examined by Counsel for Traxys, in the circumstances of this case, would cause me to reject the affidavit on that ground. 19 The only reasons advanced by Counsel for Balaji in favour of both allowing the evidence to be read and for allowing cross-examination to proceed by way of video link were that: (a) It would save Balaji the expense of bringing Mr Sureka to Australia; and (b) It would not involve lengthy video link evidence and thus be an efficient use of Court time. 20 A party in the position of Balaji, which has approached the adducing of evidence in its case in the way that Balaji has in this case, cannot be heard to rely upon expense to it and its convenience as reasons for the Court permitting the indulgence of cross-examination to proceed by way of video link. The simple fact is that, if Mr Sureka's evidence was considered to be as important as apparently it now is, this material should have been adduced by Concast in its own defence a long time ago or, if the approach now being taken was considered to be appropriate, adduced by Balaji in its defence a long time ago. Had that been done, no doubt arrangements could have been made for Mr Sureka to attend the hearing in Sydney. 21 For all of these reasons, I reject the affidavit of Sanjay Sureka. I also refuse to grant leave for it to be filed. That affidavit will be marked as MFI-2 and kept with the Court file. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.