UIL (Singapore) Pte Ltd v Wollongong Coal Limited

1. This is an application under s 47A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) that the Court permit lay witness testimony to be given via video link. The application was made very late on the weekend before the commencement of trial on Monday, 8 December 2025. The evidence supporting the application was made by the applicant's instructing solicitor and not by the proposed witness himself. Without detailing all of that evidence, it is sufficient to note that it makes clear that the witness, Mr Prasad, became aware on 29 October 2025 that he was subject to a Look Out Circular (LOC), which prevents his departure from India. He took no steps to obtain an exception that would permit him to travel until 21 November 2025, when he filed a petition to have the LOC set aside. He informed the solicitors in this matter that he was not able to travel on 3 December 2025, and communications between the solicitors for the applicant and the solicitors for the respondent commenced at that time about the present application. The application was made on 5 December 2025.
2. Mr Prasad is the managing director of Ushdev International Limited, a publicly listed company in India. Both Ushdev and the applicant are part of the UD Group of Companies, the ultimate holding company of which is the UD Trading Group Holding Pte Ltd. There is some issue as to whether or not Mr Prasad was under the control of the applicant. It is clear that Mr Prasad is in a senior position within a related company of the applicant, and the applicant has elected not to put on any evidence suggesting that it was not aware of the LOC or that it took steps to make the application as soon as possible. By contrast, the evidence makes abundantly clear that the solicitors and counsel moved as quickly as possible upon becoming aware of the issue to make the appropriate application.
3. Similarly, Mr Prasad has not, either directly or on a hearsay basis, given any evidence as to the reason that he did not inform his solicitors in Australia or the Court of the impediment to his travel. I therefore infer that Mr Prasad was unwilling to give such evidence because it would not assist him in the application. That is, I infer that he could have informed the solicitors earlier, but he did not. Similarly, the applicant itself could have given evidence, either through its solicitor on a hearsay basis or through an officer of the company directly, to explain the delay in raising the issue, including that it was only lately aware of it. It has elected not to give that evidence and I infer, therefore, any evidence on that topic would not have assisted it.
4. So, the factual situation is that Mr Prasad and the applicant failed to make this application in a timely way, and they've failed to explain why there was such delay. There is therefore no good reason for the delay.
5. I do, however, accept there is a travel ban in place. The LOC establishing the travel ban is not in evidence. Counsel for the respondent submitted that there is no such document. In the course of the application, I expressed some scepticism as to the asserted lack of any documentary record as to the existence of the travel ban, and that scepticism comes from a number of places. First, correspondence from the solicitors for the respondent seeking access to the LOC was met by the following response from the solicitors for the applicant:

The Petition and circumstances surrounding the LOC do not involve the Applicant and are unrelated to the Australian proceedings. There is no reason why the specifics of the Petition or LOC need to be divulged to your clients. If the specifics were disclosed to your clients, there would be a risk that Mr Prasad could suffer harm in the event there was any misinterpretation of matters by your clients that was leaked into the public domain.

1. Second, the petition to have the travel ban set aside states as follows:

This Petition has been filed by the Petitioner inter alia challenging the Look Out Circular (LOC) issued against the Petitioner herein ... and the seeking quashing of Look Out Circular/s issued against him at the instance of the Respondent No. 2 herein.

The Petitioner submits that he has committed no offence. The Petitioner submits that despite the same, the Petitioner learnt that a Look-out Circular has been arbitrarily and illegally issued against him and the Petitioner is not permitted to travel abroad.

1. These matters tend to suggest there is some documentary evidence underpinning the LOC even if no order has been specifically made or made available. However, I am no expert on the law of India, and no such evidence is before me. I therefore hesitantly accept that an LOC exists and proceed on the basis that Mr Prasad is prevented by the law of India from leaving the country and that there is no documentary record of that order, save what has been provided in the form of the petition.

1. The principles related to s 47A(1) of the FCA Act permit the court to allow evidence by video link, and I am satisfied the preconditions, in the technical sense, are met in this case and that evidence could be given by audio-visual link (AVL). The core of the issue before me is the interests of justice. Various factors have been taken into account across a range of cases to which I have had regard and to which counsel have taken me to. There is a helpful survey of the authorities in Southernwood v Brambles Ltd (No 2) [2022] FCA 973 at [27]- [44] (Brambles), where Murphy J outlined a survey of the evolution of the authorities as they relate to the issue. In particular, his Honour observed (at [27], [43]-[44], emphasis original):

Pursuant to s 47A(1) of the Act the Court has power to permit testimony to be given by video link. Subject to s 47C(1), the exercise of the power is in the Court's discretion. Section 47C(1) precludes the exercise of the power conferred by s 47A(1) unless the Court is satisfied as to the existence of certain technical requirements in relation to a video link are met.

...

The courts have taken into account a variety of factors in exercising the discretion under s 47A(1), including the employment commitments of an overseas witness; whether the credibility of the witness is in issue; whether the witness's evidence will be "centrally important" to the case; and whether the use of video link may frustrate or delay the management of documents in cross-examination: see [Kirby v Centro Properties Ltd [2012] FCA 60; 288 ALR 601] at [10] and the cases there cited. Each of those can be said to be relevant in the present application.

But those factors are neither exhaustive nor prescriptive and the discretion under s 47A(1) is a broad one in which the determining consideration is the interests of justice in the particular facts and circumstances of the case. It involves a balancing exercise as to what will best serve the administration of justice, doing so consistently with maintaining justice between the parties: Kirby at [11]. It must also be guided by the overarching purpose in s 37M, namely, the facilitation of the just resolution of disputes according to the law and as quickly, inexpensively and efficiently as possible: Palmer at [40]. This approach to the discretion is consistent with the remarks of Flick J in Corrigan v Commvault Systems (Australia) Pty Ltd [2011] FCA 107; 192 FCR 71 at [12], with which Besanko J agreed in Fair Work Building Industry Inspectorate at [16]. Those decisions show:

(a) it is for the party seeking a favourable exercise of the discretion to establish the reason for its exercise having regard to the specific facts and circumstances and the overriding consideration of ensuring that justice is done as between the parties to the proceeding; and

(b) there is no presumption nor prima facie case as to the way in which the discretion is to be exercised in the absence of countervailing considerations.

1. I accept that it is for the party seeking the indulgence, in this case the applicant, to establish the reason for its exercise having regard to the specific facts and circumstances and the overriding consideration of ensuring that justice is done between the parties in the proceeding. I also accept that there is no presumption nor prima facie case as to the way in which the discretion is to be exercised in the absence of countervailing considerations.

1. On the factors of this case, I make the following observations. The witness is ordinarily resident overseas, and he is a centrally important witness. This a factor which cuts both ways. His importance means that the respondent is not to be put at a disadvantage in dealing with him and cross-examining him. However, it also means that he is centrally important to the case which the applicant puts and that the effect of denying the application would be, in effect, to deny the applicant the opportunity to call an important witness.
2. I accept that Mr Prasad is subject to an LOC which prevents him from travelling. The petition provided to the Court is consistent with him being prevented by the law of India from doing so. While many of the details are obscure, it appears he has been the subject of allegations of impropriety which he contends were improperly made against him. The issue will not be determined even on an interim basis until at least 16 December.
3. The lateness of the notice, like in Brambles, puts the respondent in a difficult forensic position. They were proceeding on the basis of an in-person examination of an important witness and have been forced at the last moment to pivot to the potential for a witness giving evidence by AVL. There are some issues of credit involved. The applicant argues that it is a document case and not substantially about credit. I do accept that the matter has credit in issue: The mere fact that there are contemporaneous documents relevant to conversations that are said to have occurred does not change the fact that those conversations are still to be the subject of examination and that credibility will be relevant to my assessment of those matters.
4. However, cross-examination is possible. It can happen remotely, although I accept that it is not as good as cross-examination in person. I accept that the gravity of the situation is lessened, as is the significance of the occasion in the courtroom. I adopt what Shariff J said in ACN 117 641 004 Pty Ltd (in liq) v S&P Global, Inc (No 5) [2025] FCA 687 (S&P Global) at [33] that it is part of the common law tradition that in-person cross-examination take place, and that a failure to have access to that kind of cross-examination can reduce the solemnity of the occasion.
5. Nonetheless, recent history has taught us that the court can adapt and that the technology does exist to permit the cross-examination of witnesses in an effective way. I adopt the observations regarding the cases adverted to in Palmer v McGowan (No 2) [2022] FCA 32; 398 ALR 524 at [44]- [47], where Lee J surveyed the evolution in the court's views about cross-examination by AVL, going from some scepticism over 10 years ago to a degree of almost unanimous agreement that such evidence was adequate, to now a more guarded acceptance.
6. AVL is a tool that can be used in the interests of justice where necessity requires it. In this case, the key factor in favour of the application is that Mr Prasad does not simply seek an indulgence in the sense that it is difficult, expensive or inconvenient to travel. He is prevented from doing so. It follows that rejecting his application would have the effect of removing evidence from this trial in its entirety. While his lack of proactivity in responding to the LOC is a matter that weighs against him, and in particular his lack of explanation for that delay, it does not alter that effect of the LOC, which is to prevent him from travelling, and the significant impact that not permitting him to give evidence remotely would have on the ability of this Court to inform itself as to the evidence.
7. The interests of justice are served best by the parties engaging with the substance of the evidence, and the technology exists to permit that to happen, and I consider the Court is in a position to receive the evidence in a way that is fair to all parties. To deny the application would be to deny the applicant a substantial portion of its evidence, and that would be disproportionate, in my view, to the prejudice that is visited upon the respondent by having to remotely cross-examine and by this Court having to remotely assess Mr Prasad. I therefore consider the interests of justice are served by permitting the application.

1. While there are disadvantages to the respondent in doing so, I will manage those in the manner suggested by Shariff J in S&P Global at [7]. Leave will be given, but it will be given on the basis it may be revoked or varied if issues arise in the course of cross-examination which make it just for me to do so.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.