Zonia Holdings Pty Ltd v Commonwealth Bank of Australia Limited

1. The respondent's interlocutory application dated 25 October 2022 be refused. [Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.]

YATES J: 1 The hearing of these proceedings commences next Monday, 7 November 2022, with an estimated duration of six weeks. 2 The Bank proposes to call its lay evidence in the period 14 to 25 November 2022. It expected to call the evidence of Sir David Higgins in the period 16 to 18 November 2022. 3 On 4 October 2022, Sir David, who is resident in the United Kingdom, informed the Bank's solicitors that he was not in a position to travel to Australia in the lay evidence period. His reasons are conveyed through an affidavit made by Jason Lawrence Betts, made 25 October 2022. Mr Betts is one of the solicitors having conduct of the proceedings on behalf of the Bank. Sir David's reasons include business reasons and personal reasons. 4 The Bank seeks an order pursuant to s 47A(1) of the Federal Court of Australia Act 1976 (Cth) that Sir David be permitted to give his evidence by video link. 5 This application is opposed. I am not disposed to grant it. 6 The orders fixing the date and duration of the hearing were made on 19 August 2021. There has been no deviation from that course. 7 On the evidence before me, Sir David has been aware of these orders since October 2021. At the time he was informed of the hearing dates, he was already planning to be in Sydney from around 1 December 2022. His plans have changed. That does not mean that, for his convenience, the Court should readily accede to permitting him to give his evidence other than in person. 8 Although, in submissions, the Bank has said that it does not wish to overstate the importance of Sir David's evidence, or suggest that his evidence is "centrally important to its case", the Bank obviously considers his evidence to be of some real forensic value and of material assistance to its defence of the claims made against it in these proceedings, otherwise it would not have considered calling him as a witness, and prepared and filed a detailed affidavit by him comprising some 50 pages referring to some 82 documents dealing with, amongst other things, Sir David's awareness of certain interactions between the Bank and AUSTRAC in the period 1 September 2014 to 3 August 2017, and Sir David's observations on the Bank's risk and compliance framework during that period. 9 I observe that, in that period, Sir David was not only a Non-Executive Director of the Bank but also a member of various Board committees, including the Risk Committee and the Audit Committee. 10 The applicants say that Sir David's evidence is contested and that his cross-examination is likely to take one day. I have no reason to doubt those matters. I am firmly of the view that, in those circumstances, and in proceedings as complex and important as the present proceedings, evidence on a topic of major significance (here, whether the Bank was in possession of non-disclosed price-sensitive information) should be tested, in person, unless there are compelling reasons why that is not possible. My assessment is that there are no compelling reasons. 11 While I accept that, on the evidence, it may well be inconvenient for Sir David to be present, personally, in Sydney at the appointed time, a solution to avoid that inconvenience should not be one that, in turn, visits inconvenience or disadvantage upon the applicants. The applicants should not be denied the forensic advantages of having Sir David give his evidence in-person; nor should the Court. 12 While it might be technically possible for Sir David's oral evidence to be taken by video link, it does not follow, of course, that adopting that means of taking evidence is appropriate or provides a satisfactory alternative, in the current circumstances, to him giving evidence in person. My own experience as a trial judge in complex commercial litigation leads me to suspect that, for a number of reasons, taking Sir David's oral evidence by video link might well be markedly inferior to taking that evidence in-person. I am not prepared to expose the applicants, or indeed myself, sitting as the Court, to that risk. 13 The application is, therefore, refused. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates.