ASIC v Rich

[2004] NSWSC 467

Reported Decision: 49 ACSR 578
(2004) 22 ACLC 1125

Supreme Court

CITATION:	ASIC v Rich [2004] NSWSC 467
HEARING DATE(S):	24 May 2004
JUDGMENT DATE:	31 May 2004
JURISDICTION:	Equity
JUDGMENT OF:	Austin J
DECISION:	Orders to be made for the issue of a letter of request to the competent judicial authority in the United Kingdom for the examination of two witnesses in London, before the trial judge as examiner, and for the production by them of certain documents. Application dismissed so far as it relates to the taking of the evidence of those witnesses by audio visual facilities.
CATCHWORDS:	PRACTICE AND PROCEDURE - whether evidence of two witnesses should be taken by use of audio visual facilities - relevant considerations - whether, in the alternative, orders should be made for the issue of a letter of request to the competent judicial authority in the United Kingdom for the examination of the witnesses before the trial judge as examiner
LEGISLATION CITED:	Evidence (Audio and Audio Visual Links) Act 1998 (NSW) ss 5B, 5C, 5D Evidence on Commission Act 1995 (NSW) ss 6, 7, 8 Foreign Evidence Act 1994 (Cth) ss 7, 8, 9 Supreme Court Rules Part 27, 36
CASES CITED:	Asermeley-Rivera v Neffati (Supreme Court of New South Wales, Kirby J, unreported, 12 April 2001 - BC200101619) Australian Competition & Consumer Commission v World Netsafe Pty Ltd [2002] FCA 526 (Spender J) Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd (2001) 53 NSWLR 1 (Palmer J) B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95 (Williams J) Bayer AG v Minister for Health of the Commonwealth (1988) 13 IPR 225 Cigna Insurance Australia Ltd v CSR Ltd (Supreme Court of New South Wales, Rolfe J, unreported, 29 November 1995) Commissioner of Taxation v Grbich (1993) 18 AAR 74 DPP v Alexander (1993) 33 NSWLR 482 Garcin v Amerindo Investment Advisors Ltd [1991] 1 WLR 1140 Hardie Rubber Co Pty Ltd v General Tyre & Rubber Co (1973) 129 CLR 521 Henderson v SBS Realisations Ltd (English Court of Appeal, 1992, unreported, extracted in B v Dentists Disciplinary Tribunal) ICI Australia Ltd v Commissioner of Taxation (Federal Court of Australia, Ryan J, unreported, 29 May 1992) Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 838 (Einstein J) K v S (2001) 27 Fam LR 498 (Full Family Court) Lamesa Holdings BV v Commissioner of Taxation (Federal Court of Australia, Sackville J, unreported, 30 June 1998) McDonald v Commissioner of Taxation (2000) ATC 4271 (Finn J) Meehan v GPR Management Services Pty Ltd (Federal Court of Australia, Einfeld J, unreported, 31 May 1994) Mewett v Commonwealth of Australia [1998] FCA 1360 (Katz J) Moyette Pty Ltd v Foundation Healthcare Ltd [2003] FCA 116 (Conti J) Novotny v Todd [2002] WASCA 79 (Full Court of the Supreme Court of Western Australia) Poschung v Jones (Supreme Court of New South Wales, Levine J, unreported, 25 October 1996, BC9606849) Reinsurance Australia Corporation Ltd v HIH Casualty & General Insurance Ltd (in liq) [2001] FCA 1549 (Jacobson J) R v Kyu Hyuk Kim (1998) 104 A Crim R 233 (Coldrey J) Sheldon & Hammond Pty Ltd v Metrokane Inc [2002] FCA 1561 (Conti J) Studniberg v JP Morgan Australia Ltd [1998] NSWIRComm 483 (Schmidt J) Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (Supreme Court of New South Wales, Giles CJ Comm D, unreported, 11 March 1997) Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 (Katz J) Versace v Monte [2001] FCA 1454 (Tamberlin J)
PARTIES :	Australian Securities and Investments Commission (P/A) John David Rich (D1/R1) John Huyshe Greaves (D3/R3) Mark Allen Silberman (D4/R4)
FILE NUMBER(S):	SC 5934/01
COUNSEL:	R B S Macfarlan QC with A J Abadee (A) D L Williams SC (R1/R4) M J Steele (R3)
SOLICITORS:	Jan Redfern, Solicitor for Australian Securities and Investments Commission (A) Joanne Kelly, Solicitor (R1/R4) Watson Mangioni (R3)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

MONDAY 31 MAY 2004

5934/01 AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION V JOHN DAVID RICH & ORS

JUDGMENT

1 HIS HONOUR: This is a proceeding under the civil penalty provisions (Part 9.4B) of the Corporations Act 2001 (Cth). The plaintiff, ASIC, seeks declarations that the first, second and fourth defendants (Mr Rich, Mr Greaves and Mr Silbermann) have failed to discharge the duty of care imposed on them as directors and corporate officers by s 180 of the Act, orders requiring them to pay compensation of about $92 million to the company, and orders disqualifying them from being concerned in the management of corporations.

2 The case involves the collapse of the One.Tel group of companies. The One.Tel group was a large telecommunications group based in Australia, which also had businesses in the United Kingdom, Germany and other European countries. In its pleadings, ASIC has made allegations concerning the true financial position of the group as at the end of each month in the period from January to May 2001, and in particular, with respect to the cash available within the group to pay creditors. ASIC has also made allegations, inter alia, as to the defendants' knowledge of the group's financial position. It has contended that they failed to take appropriate steps to ensure that the board of directors of the parent company was informed of the group’s financial position, that they should have recommended the appointment of an administrator, that they failed to take reasonable steps to monitor the management of the group and properly to assess its financial position, and that they failed to ensure that proper systems were established to achieve an accurate flow of material financial information, and to ensure that the cash reserves of the group were adequate to pay debts as they fell due.

3 The plaintiff's case has been set down for hearing by me as trial judge, in the three months beginning on 2 August 2004. I have been informed that, in addition to affidavit and oral evidence, ASIC's evidence will include a six volume tender bundle of documents, and an additional 12 volumes exhibited to the affidavits and reports of a financial expert. As a result of a decision of the High Court of Australia in April 2004, reversing the decision of the Court of Appeal of New South Wales in Rich v ASIC (2003) 48 ACSR 6, the defendants are entitled to rely on the privilege against exposure to a penalty in their conduct of the proceeding. They have indicated to the court that they will not announce their decision whether to tender any evidence until ASIC's case has been closed. One can anticipate that if the defendants go into evidence, the hearing will continue for an additional period of weeks or perhaps months. In summary, this is major civil litigation, in which ASIC will rely on a large quantity of documentary evidence.

4 Six of ASIC's witnesses reside outside Australia. The parties have agreed that two of them, whose evidence will be limited in scope, should give their evidence by audiovisual link. Two others have agreed with ASIC to come to Sydney to give evidence. But two of the overseas witnesses, Christopher Phillip Anthony Weston and Christian Werner, both resident in England, have not agreed to do so, even though Mr Weston has sworn a substantial affidavit and Mr Werner has given a telephone interview on the basis of which ASIC has produced a substantial outline of evidence. An Australian court cannot, by direct order, compel a foreign witness to give evidence in a proceeding before it. Hence ASIC has made the present application.

5 By its interlocutory process, ASIC seeks orders for the taking of the evidence of Mr Weston and Mr Werner in London. In final submissions on the application, senior counsel for ASIC formulated its proposed principal orders as follows:

(1) an order under ss 7(1)(c) and 8 of the Foreign Evidence Act 1994 (Cth) that a letter of request be issued to the competent judicial authority in the United Kingdom for the examination on oath or affirmation of Mr Weston and Mr Werner before an examiner sitting in London appointed by the competent judicial authority of the United Kingdom, such examination to be conducted by audiovisual link with the legal representatives of the parties and the trial judge in Sydney;

(2) an order pursuant to Part 36 rule 2A(1) of the Supreme Court Rules of New South Wales that the evidence of Mr Weston and Mr Werner be taken by the audiovisual link referred to in order (1), subject to the examination contemplated by that order taking place;

(3) in the alternative, an order pursuant to ss 7(1)(c) and 8 of the Foreign Evidence Act that a letter of request be issued to the competent judicial authority of the United Kingdom for the examination on oath or affirmation of Mr Weston and Mr Werner in London with such examination to be conducted by legal representatives of the parties before the trial judge sitting in London as an examiner appointed by the competent judicial authority of the United Kingdom.

6 It can be seen that ASIC places two alternatives before the court, namely that the evidence of Mr Weston and Mr Werner be taken in London with an audiovisual link to counsel and the trial judge sitting in Sydney (proposed orders (1) and (2)), or that it be taken viva voce before the trial judge as examiner, and counsel, in London (proposed order (3)). ASIC prefers the audiovisual procedure to personal attendance in London, but wishes to have orders for personal attendance if the court does not favour the audiovisual procedure.

7 Mr Rich and Mr Silbermann have appeared as respondents to ASIC's application, and Mr Greaves has informed the court that he does not wish to make submissions. For convenience, I shall refer to Mr Rich and Mr Silbermann as "the defendants". They strenuously object to the audiovisual procedure, but they do not resist personal attendance in London, provided that ASIC undertakes to meet their travel and accommodation costs, and their incremental costs. Their senior counsel has informed the court that they do not seek to prevent ASIC from adducing the evidence of the two witnesses, so long as it is done without imposing any extra burden on the defendants.

8 Because of the considerable cost involved in pursuing either procedure, ASIC seeks to ensure that the two witnesses will give their evidence at the appointed time. To this end, ASIC invites the court to issue a letter of request to the competent judicial authority in the United Kingdom for examination before an examiner. If the audiovisual procedure were to be used, the UK judicial authority would be asked to appoint a suitable examiner to preside over the examination in London, with directions for audiovisual linkage of the examination to a court in Sydney, where questions in the nature of cross-examination would be asked by counsel and the trial judge would observe the examination (proposed order (1)). If the procedure by personal attendance were to be used, the UK judicial authority would be asked to appoint the trial judge as examiner in London, and questions in the nature of cross-examination would take place in London (proposed order (2)).

9 Whichever procedure is followed, if the competent judicial authority in the United Kingdom responds to the letter of request by issuing an appropriate initiating process (presumably in accordance with the Practice Direction supplementing Part 34 of the Civil Procedure Rules 1998, Depositions and Court Attendance by Witnesses), and that initiating process is served on the witnesses, the witnesses will be required to attend and submit to the examination by virtue of United Kingdom law. The product of the examination process (presumably a transcript in either case, and a video or digital tape if the audiovisual procedure is followed), will not automatically be evidence in the Australian proceeding, but ASIC will presumably tender it. Any contest as to the admissibility of that material will be minimised if the trial judge is able to make rulings on objections to questions during the administration of the examination.

10 The defendants do not oppose the issue of a letter of request for examination before the trial judge in London, but they submit that it would be premature to do so, because it is not yet sufficiently clear that the two witnesses are unwilling to give evidence in Sydney. They oppose the issue of a letter of request to support the audiovisual procedure, because they oppose the audiovisual procedure in any form.

11 I have decided to dismiss ASIC's application so far as it seeks orders for taking the evidence by audiovisual link, but to make an order for the issue of a letter of request intended to have the result, if the UK judicial authority responds and the two witnesses continue to refuse to come to Australia, that the witnesses will be required to attend an examination in London by Australian counsel in the presence of the trial judge as examiner. I shall explain my reasons by first dealing with ASIC's preferred option, evidence by audiovisual link, and then its alternative option, evidence taken in person in London.

Evidence by audiovisual link

12 New South Wales courts have a broad discretionary power to make orders for the taking of evidence by audiovisual link. Section 5B(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) says that the court may, on the application of a party or by its own motion, direct a person (whether or not the person is a party to the proceeding) to give evidence by audiovisual link from (inter alia) any place outside Australia. Section 5B(2) prevents the court from making such a direction in certain circumstances, including where the court is satisfied that "the direction would be unfair to the party" (presumably, the non-applicant party). It is clear from the wording of subsection (1) that the court has a discretion to grant to dismiss the application where none of the excluding circumstances is present.

13 The statutory power is expressed to be subject to any applicable rules of court. Part 36 rule 2A of the Supreme Court Rules empowers the court to give directions for and in relation to the conduct of proceedings, including the giving of evidence by any audiovisual method.

14 Where s 5B and Part 36 rule 2A are used, the evidence is adduced by audiovisual means and there is no need for subsequent tender of the transcript or video record. Section 5C of the Evidence (Audio and Audio Visual Links) Act provides that the place outside New South Wales at which audiovisual link facilities are being used for giving evidence is taken to be part of the New South Wales court, for the purposes of the laws relating to evidence, procedure, contempt of court and perjury. Section 5D makes provision for the administration of an oath or affirmation in the foreign country, and also allows the New South Wales court to proceed to take the evidence otherwise than on oath or affirmation: see the observations of Morritt J in Garcin v Amerindo Investment Advisors Ltd [1991] 1 WLR 1140.

15 If it were clear that Mr Weston and Mr Werner would co-operate by attending at a designated place in London and submit to audiovisual questioning, it would be enough for the court to exercise its power under these provisions. Where, however, there is substantial doubt as to whether the witnesses will attend at the overseas location, it may be better for the court to issue a letter of request under s 7(1)(c) of the Foreign Evidence Act for the examination of the witnesses before an examiner in London, with directions for audiovisual transmission to the court in Australia. Proceeding in that matter is, strictly, an alternative to proceeding under s 5B and Part 36 rule 2A, and it is necessary to make a separate tender the transcript and video record of the examination, having regard to s 9 of the Foreign Evidence Act and s 8 of the Evidence on Commission Act 1995 (NSW).

16 The court would not make an order under any of these provisions unless it were satisfied, in the exercise its discretion, that the audiovisual process is appropriate. The parties made meticulous written and oral submissions in which they referred to a large number of cases as to the giving of evidence by audiovisual facilities. They are of only limited assistance, because the court's decision in the exercise of its discretion will depend upon the particular circumstances of the case. Moreover, in most of the cases to which I have been referred, the issue for determination was not whether to prefer the taking of audiovisual evidence to personal attendance by the court overseas. In some cases the issue was whether to accept the audiovisual process as an acceptable alternative to personal attendance by a witness who was assumed to be willing to come to Australia; in others it was whether the audiovisual process was adequate to satisfy the requirement of procedural fairness to the other party; and in a few it was whether the relevant court had jurisdiction to take evidence by audiovisual facilities in the absence of an express power to do so.

17 Nevertheless, the cases contain some observations about the utility of the audiovisual process, which I have taken into account. It seems to me there are broadly two approaches exhibited by the observations in the cases. One line of cases, generally in favour of the use of audiovisual evidence, includes Bayer AG v Minister for Health of the Commonwealth (1988) 13 IPR 225 (Young J), ICI Australia Ltd v Commissioner of Taxation (Federal Court of Australia, Ryan J, unreported, 29 May 1992), Henderson v SBS Realisations Ltd (English Court of Appeal, 1992, unreported, extracted in B v Dentists Disciplinary Tribunal, cited below), DPP v Alexander (1993) 33 NSWLR 482 (Hunt CJ at CL), Commissioner of Taxation v Grbich (1993) 18 AAR 74 (Beaumont J), Meehan v GPR Management Services Pty Ltd (Federal Court of Australia, Einfeld J, unreported, 31 May 1994), B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95 (Williams J), Studniberg v JP Morgan Australia Ltd [1998] NSWIRComm 483 (Schmidt J), R v Kyu Hyuk Kim (1998) 104 A Crim R 233 (Coldrey J), Mewett v Commonwealth of Australia [1998] FCA 1360 (Katz J), McDonald v Commissioner of Taxation (2000) ATC 4271 (Finn J), Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 (Katz J), Versace v Monte [2001] FCA 1454 (Tamberlin J), K v S (2001) 27 Fam LR 498 (Full Family Court), Reinsurance Australia Corporation Ltd v HIH Casualty & General Insurance Ltd (in liq) [2001] FCA 1549 (Jacobson J), and Sheldon & Hammond Pty Ltd v Metrokane Inc [2002] FCA 1561 (Conti J).

18 Another line of cases, which takes a more cautious approach to the use of audiovisual evidence, includes Poschung v Jones (Supreme Court of New South Wales, Levine J, unreported, 25 October 1996, BC9606849), Cigna Insurance Australia Ltd v CSR Ltd (Supreme Court of New South Wales, Rolfe J, unreported, 29 November 1995), Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (Supreme Court of New South Wales, Giles CJ Comm D, unreported, 11 March 1997), Lamesa Holdings BV v Commissioner of Taxation (Federal Court of Australia, Sackville J, unreported, 30 June 1998), Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd (2001) 53 NSWLR 1 (Palmer J), Asermeley-Rivera v Neffati (Supreme Court of New South Wales, Kirby J, unreported, 12 April 2001 – BC200101619), Australian Competition & Consumer Commission v World Netsafe Pty Ltd [2002] FCA 526 (Spender J) and Moyette Pty Ltd v Foundation Healthcare Ltd [2003] FCA 116 (Conti J).

19 Apart from dealing with obvious practical matters such as comparative costs and the difficulty created by differences in time zones, the cases touch upon some recurring themes: the appropriateness of audiovisual facilities for centrally important evidence, the assessment of credit where evidence is given by audiovisual link, difficulties raised by the use of documents for cross-examination in audiovisual evidence, technological difficulties due to lapse of time between transmission and receipt of questions and answers, and difficulties posed by the use of audiovisual facilities where the cross-examination is lengthy. There are also comments on the general approach to be taken by the court to a proposal for evidence to be adduced using audiovisual facilities. I shall refer briefly to each of these matters.

Centrally important evidence

20 In the McDonald case, Finn J found it significant that audiovisual facilities had been used notwithstanding that a witness's evidence was regarded as central. His observation was approved by Katz J in Tetra Pak, where his Honour allowed evidence to be taken by audiovisual facilities although it was said to be centrally important, observing (at [18]) that the centrality of the evidence to the case and its contentiousness did not dissuade Coldrey J from making an order for audiovisual evidence in Kyu Hyuk Kim.

21 On the other hand, in Poschung v Jones and the Australian Medical Imaging case the courts exhibited a leaning towards viva voce evidence by reference to a number of factors, one of which was the importance of the evidence to the determination of the case.

22 It seems to me that there is no inconsistency in the cases on this point. The fact that the witness's evidence will be centrally important should not of itself persuade the court against using audiovisual facilities. But if the court can anticipate that the cross-examination of the witness will be lengthy and complex, and that the credit of the witness will be challenged, that combination of factors is likely to persuade the court against audiovisual evidence unless there is a good reason for choosing it (such as, for example, a large difference in costs or the illness of the overseas witness).

23 Here the evidence of Mr Weston and Mr Werner is of critical importance to ASIC's case, for reasons that I shall explain later.

Assessment of credit

24 In the Bayer case, Young J observed that one can assess the demeanour of a witness quite satisfactorily by the use of televised evidence (an observation made at a time when the equipment was generally much less efficient than it now is). To similar effect, Williams J in B v Dentists Disciplinary Tribunal took the view (at 104) that evidence available through video conference "is effectively viva voce evidence". Those observations have been supported, in the context of more modern equipment, by Schmidt J in Studniberg, Finn J in McDonald, and Katz J in Tetra Pak. Earlier, in the ICI Australia case, Ryan J had expressed the opinion that the physical remoteness of the witness would not unduly disadvantage either the cross-examining counsel or the court in assessing credibility, although he contemplated that if the use of audiovisual facilities should turn out to be unsatisfactory, arrangements could be made for further cross-examination viva voce.

25 In Alexander's case Hunt CJ at CL observed (at 498), as early as 1993, that the court was becoming used to assessing videotaped evidence in the criminal context, including records of interview and the evidence of child complainants in sexual assault cases. He said the procedure was very successful in demonstrating the demeanour of the witness.

26 In Lamesa Holdings Sackville J ruled against audiovisual evidence, where there was no evidence before him that the witnesses would suffer disruption or inconvenience in their professional or personal lives by doing so. He distinguished the Sunstate case on the ground that the witness's evidence was not regarded as crucial in Sunstate, but he added that his remarks should not be taken as indicating that audiovisual evidence will always be inappropriate if the witness's credit is likely be challenged.

27 On the other hand, the Full Family Court in K v S accepted (at [24]) that there may be "a diminution in the ability to detect ... subtle nuances" that may be relevant to the assessment of credit. In the Cigna Insurance case Rolfe J thought that audiovisual facilities were more appropriate where the evidence is not particularly controversial or where no real issue of credit is involved (at [9]). Giles CJ Comm D took a similar approach in the Sunstate case (BC9700538 at 6). In the Asermeley-Rivera case Kirby J held (at [16]) that the use of video link was not feasible in view of a number of factors, one of which was that issues of credit would be involved. In the Australian Medical Imaging case Palmer J expressed the opinion that it is desirable to have the witness in court for examination where major issues of credit are involved (at [27]). Spender J quoted Palmer's observation with approval, in the World Netsafe case (at [9]), and Conti J agreed with Palmer and Spender JJ in the Moyette case (at [10]-[11]).

28 I think there is a danger in removing judicial observations on this point from their context and treating them as if they were statements of principle. I can see that on many occasions (depending on such matters as the nature of the evidence and the issues likely to be raised in cross-examination) it will be as easy to assess the credit of the witness in audiovisual as in viva voce evidence. The "subtle nuances" of which the Full Family Court spoke will often not be there, and if they are, they will be captured by the video camera. But there will be exceptional cases where the audiovisual procedure will put the cross-examiner and the court at a real disadvantage in dealing with credit. They will include cases like the present one, where the witness's evidence is centrally important and the cross-examination is likely to be long and complex, and the issue of credit is likely to depend upon the witness's responses to questions based on documents shown to him by the cross-examiner. Where the court is given a choice between audiovisual and viva voce evidence in such a case, the court is likely to regard viva voce evidence as the safer course unless there is a good reason for preferring the audiovisual approach (such as a large cost differential or the illness of the witness).

Management of documents in cross-examination

29 There is a good description of the problem in Rolfe J's judgment in the Cigna Insurance case (at [7]). He said that "anyone familiar with cross-examination on documents, particularly large numbers of documents, will be aware that even when that happens in court there can be delays as witnesses move from volume to volume and seek to find page numbers". He said that if audiovisual facilities were used, copies of the documents would need to be available for the witness overseas, and there would need to be someone there who could assist in referring to the documents.

30 In the Reinsurance Australia case Jacobson J noted that "the difficulties involved in providing documents to the witness in London" might cause some delays, but in a case where it was contemplated that the taking of the evidence would last only two or three hours, he concluded that "the logistics can be put in place to enable that aspect of the evidence to be dealt with smoothly" (at [14]). In the Australian Medical Imaging case Palmer J said that it is desirable to have the witness in court for examination where documentary material of some volume and complexity is likely to be deployed (at [27]). Spender J (World Netsafe case, at [9]) and Conti J (Moyette, at [10]) have agreed with Palmer J's view. In Sheldon & Hammond Conti J allowed video link evidence in respect of some witnesses, even though the cross-examination would be substantial and there would be issues about both credit and the management of documents, but he did so on the basis that they were too ill to come to Sydney.

31 My own experience confirms that the management of documents can be a source of frustration and delay where audiovisual evidence is taken. But I agree that the problem can be reduced to manageable proportions if the cross-examiner makes sure that copies of the documents are available to the witness overseas and there is someone with the witness who can assist the witness to identify and locate the documents. The extent of the problem will vary from case to case.

32 In the present case the difficulties of managing documents during audiovisual cross-examination are likely to be greater than in most other cases. This is because the six-volume tender bundle and the 12 volumes of exhibits to ASIC's expert's report are just the plaintiff's documents. One would expect, and senior counsel for the defendants confirmed, that other documents not in ASIC's tender bundle will be put before the witnesses. To achieve this in an audiovisual setting, senior counsel for the defendants would (as a practical matter) need to prepare his cross-examination sufficiently far in advance to ensure that copies of all the documents he wished to show to the witnesses were present in London by the time he came to do so. The defendants' documents would need to be kept safe and confidential in London before and even after their use. These are substantial practical problems, which could be avoided if the cross-examination takes place viva voce.

Technological difficulties

33 In Poschung v Jones Levine J remarked (BC9606849 at 8) that video link could not be said to be perfect in any technological sense, and he drew attention to variations in format and time lapses. In the Cigna Insurance case Rolfe J said (at [6]) that in his experience cross-examination is necessarily somewhat slower by video link than where a witness is present in the courtroom, and observed that there was a necessary hiatus between the asking of the question and receipt of it by the witness, and then another hiatus between the giving of the answer and reception of it by the cross-examiner. He said that where cross-examination is to take place over a substantial period of time, the use of audiovisual procedures would inordinately lengthen the cross-examination.

34 ASIC has placed evidence before me to the effect that the current-generation equipment has a "system latency" of 100 milliseconds, compared with older-generation equipment where the system latency was up to 300 milliseconds. According to this evidence, a slight pause is perceptible with the older-generation equipment but with the current-generation equipment, the pause is "virtually imperceptible". The source of the evidence was a person whose interest is to promote the use of the new equipment. The phrase "virtually imperceptible" leaves one in some doubt as to the effect of system latency in modern equipment. If I were otherwise inclined to support the use of audiovisual facilities in this case, I would take up ASIC's offer of a demonstration before finally deciding. But the conclusion I have reached on other grounds makes it unnecessary to do so.

Length of cross-examination

35 In most of the cases where courts have allowed evidence to be given by the use of audiovisual facilities, the estimate of the length of cross-examination has been moderate. For example, in the Reinsurance Australia case it was contemplated that the video facility would be needed for only 2-3 hours. In the Tetra Pak case the evidence of only one witness was at stake, with cross-examination estimated to last "at least" 2 hours. However, in some cases much more extensive use of the facility was contemplated. In the Studniberg case there were eight witnesses, and in K v S it was contemplated that the video facility would be used for the whole of the hearing, to enable the applicant to conduct the case from Hobart where he was incarcerated.

36 In other cases judges have regarded audiovisual facilities as unsuitable for taking lengthy evidence: for example, Cigna Insurance, at [9] per Rolfe J and Poschung v Jones, BC9606849 at 8 per Levine J.

37 It seems to me that the length of the cross-examination is less important than whether the witness is located in a different time zone from court, and consequently whether the use of audiovisual facilities would create practical problems in operating in two time zones over that extended length of time.

38 In the present case Mr Rich and Mr Silbermann have retained the same legal team, and it appears unlikely that Mr Greaves' counsel will take a major role in the cross-examination of every witness. That means that for the duration of ASIC's case, the vast bulk of the cross-examination will be undertaken by one cross-examining team. What is proposed, if the use of audiovisual facilities is allowed, is that the evidence of Mr Weston and Mr Werner will be heard for 3 hours a day between 5pm and 8pm Sydney time, that is 8am to 11am London time.

39 The rough estimate given by senior counsel for the defendants is that 5 full days will be needed for the cross-examination of the two witnesses. That translates into at least 10 audiovisual sittings. I say "at least" because any delays inherent in the process or produced by technical difficulties (such as losing the connection) would, of course, expand the required time. Thus, for least two weeks and in all probability more than two weeks, the court would assemble to hear audiovisual evidence in the evenings. Senior counsel for ASIC proposed that during that time, no evidence would be taken in the afternoon in Sydney, but evidence would be taken from other witnesses during the morning. Thus the court and, more particularly, the cross-examining team would be required to prepare for two cross-examinations each day, running in tandem. Although Sydney lawyers are renowned for their hard-working habits, I believe that would be a particularly arduous schedule.

Is audiovisual evidence "for practical purposes, the same" as viva voce evidence?

40 Senior counsel for ASIC endeavoured to extract from the first line of cases the general proposition that hearing evidence by audiovisual link is, for practical purposes, much the same as hearing evidence in court. That was said by Lord Donaldson MR in the Henderson case, although in a context quite different from the present one, where the issue for his Lordship was whether to allow video link evidence or to leave the matter to be proven by documents.

41 His Lordship's observations were noted by Finn J, evidently with approval, in the McDonald case, but there the question was whether the requirements of natural justice had been satisfied by an audiovisual procedure, and his Honour was not asked to determine whether the audiovisual procedure was the same as hearing evidence in court. Then the observations of the Master of the Rolls and Finn J were taken up and applied by Katz J in the Tetra Pak case, to support his conclusion that there was "a strong current of authority in favour of permitting the relatively new video link technology to be used, in the absence of some considerable impediment telling against its use in the particular case", although there were other practical factors pointing to the conclusion that the witness should be allowed to give evidence by video link in that case. Katz J's quoted statement was expressly approved by Tamberlin J in the Versace case, although there the order for audiovisual evidence was made by consent.

42 Other cases have declined to adopt the general approach taken by the Master of the Rolls. In the Australian Medical Imaging case Palmer J expressed the opinion that audiovisual evidence should only be allowed if good reasons are shown by the applicant. The Full Family Court in K v S quoted from the observations of Balcombe LJ in the Henderson case to conclude that the use of audiovisual facilities is adequate to afford procedural fairness to a party remote from the court room, but their Honours observed that the technology was not without limitations. In the World Netsafe case Spender J expressed the opinion that there are deficiencies when evidence is taken by video link when compared with evidence given viva voce. He expressly disagreed with the observation that there is no real difference between the two forms of taking evidence. His view was supported by Conti J in Moyette, at [11].

43 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. Secondly, 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. If these propositions are accepted, it is unnecessary and unhelpful to argue about whether audiovisual evidence is "for practical purposes, the same" as viva voce evidence.

The present case

44 The combination of several special factors weighs in favour of viva voce evidence and against audiovisual evidence in this case. The evidence is centrally important to ASIC's case, the defendants will challenge the credit of the witnesses, the cross-examination will be relatively long and no doubt complex, and reliance will be placed on a large quantity of documents tendered by the plaintiff, and also upon documents not in the plaintiff's tender bundle. The logistics of managing the documents in an audiovisual cross-examination would be very difficult. Having audiovisual cross-examination each evening for two or more weeks while endeavouring to continue with the rest of the case each morning would, as I have said, be unduly taxing on the defendants' legal resources, and difficult for the court.

45 If there were an enormous discrepancy between the cost of using audiovisual facilities and the travel, accommodation and other costs of moving the court to London so that the witnesses could be examined by the trial judge as examiner, one might be prepared to suffer the apprehended difficulties on the ground that, notwithstanding those difficulties, audiovisual evidence is sufficient to satisfy the requirements of procedural fairness. But it appears from the evidence before me that both the audiovisual route and the viva voce route will be ferociously expensive. Senior counsel for the defendants produced some calculations at the hearing, which gave the cost of providing audiovisual facilities (based on his estimate of cross-examination lasting for the equivalent of 5 full hearing days) as $116,000. After considering those calculations, senior counsel for ASIC told me that his client did not wish to challenge them. ASIC's estimation of the travel, accommodation and other costs involved in taking the viva voce route is $150,000. This does not include "incremental" costs (a term explained below) estimated at $60,000-$80,000, but senior counsel for the defendants contended that there would be incremental costs of that order even if the audiovisual route were followed. If that is right, then the difference in costs is only $34,000. If incremental costs are payable for viva voce examination but not for audiovisual evidence, the difference is $94,000-$114,000. Even the latter figure is not large when considered in the context of the scale of this litigation.

46 I have therefore reached the firm conclusion, in circumstances were ASIC proposes a scheme for examining the two witnesses by personal attendance in London as its less-preferred alternative, that it would be better to hear the witnesses viva voce in London than to proceed by audiovisual means.

Examination of the witnesses in London, before the trial judge as examiner

47 There are two statutes governing the examination of witnesses abroad for the purposes of a proceeding in this court. They are the Foreign Evidence Act 1994 (Cth), ss 7, 8 and 9 of which are particularly relevant, and the Evidence on Commission Act 1995 (NSW), in which the relevant provisions are ss 6, 7 and 8. For convenience I shall refer only to the Foreign Evidence Act.

48 Section 7(1)(a) of the Foreign Evidence Act empowers a superior court in Australia, if it appears in interests of justice to do so, to make an order for the examination, on oath or affirmation, of a person outside Australia before a judge of the court or such other person as the court may appoint. Part 27 rule 1A of the Supreme Court Rules reinforces this by permitting the court to make orders for the examination of any person before a judge or such other person as the court may appoint as examiner, at any place in or out of Australia. A difficulty that would arise if reliance were placed only on these provisions would be, as previously noted, that the witnesses would not be compellable to attend and be examined if they were to remain outside Australia. Therefore ASIC seeks to invoke a different procedure, which involves the co-operation of the relevant judicial authority in the United Kingdom.

49 Section 7(1)(c) of the Foreign Evidence Act empowers a superior court in Australia to make an order for the issue of a letter of request to the judicial authorities of a foreign country to take the evidence of a person outside Australia, if it appears in the interests of justice to do so. Subsection 8(2) empowers the court to include in the order a request about any matter relating to the taking of the evidence, including such matters as whether the evidence is to be given orally or on affidavit, and as to the attendance of legal representatives.

50 In the present case ASIC, through its London solicitors, has made inquiries of the Senior Master of the Royal Courts of Justice, Master Robert Turner. The Master has provisionally indicated, subject to reviewing the terms of the letter of request, that he would be prepared to appoint the trial judge as examiner of the English court so as to enable him to compel the attendance of witnesses. He has said in correspondence that his aim is to assist, wherever possible, another Commonwealth jurisdiction, especially where a request made to him accords with the spirit and practice of his court's Procedural Rules. In his letter dated 13 May 2004 he said:

"The purpose served by the appointment of the examiner is to provide for somebody before whom the witness can be ordered to attend - if he fails to attend, an order against him can be made on the certificate of the examiner that the witness did not attend."

51 Subsection 7(2) of the Foreign Evidence Act states:

"In deciding whether it is in the interests of justice to make [inter alia, an order under s 7(1)(c)], the matters to which the court is to have regard include the following:
(a) whether the person is willing or able to come to Australia to give evidence in the proceeding;
(b) whether the person will be able to give evidence material to any issue to be tried in the proceeding;
(c) whether, having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order."

I shall consider each of these three matters.

(a) Willingness of the witnesses to come to Australia to give evidence

52 Mr Weston is the managing director of a business unit of Centrica Telecommunications. He is represented by English solicitors. He made a six-page affidavit as a witness for ASIC in May 2002. In December 2003 ASIC asked him to come to Australia to give evidence. In correspondence with him, ASIC has offered to pay his reasonable expenses (including, most recently, first-class air travel and also the travel expenses of Mr Weston's lawyer), and to do everything they can to minimise the time he has to spend in Sydney and away from his business.

53 The in-house counsel of Centrica Telecommunications wrote to ASIC on 7 January 2004, questioning whether any further participation would be necessary for Mr Weston, given the statements he had already provided. The letter claimed that it would be unduly burdensome for Mr Weston to find the time to attend a hearing in Australia, that he had an extremely demanding schedule, and that he would prefer not to travel to Australia "unless absolutely necessary". The letter suggested that if further evidence was required, ASIC might explore other ways of providing it that would cause minimal disruption, for example video link. ASIC responded by saying that it doubted that the defendants would consent to the taking of evidence by video link, and it was therefore likely that Mr Weston would be required to travel to Sydney for part of the hearing.

54 Mr Weston's English solicitors sent an e-mail to ASIC on 8 March 2004, saying:

"Mr Weston has confirmed that whilst he remains willing to co-operate with ASIC, he is not, understandably, prepared to travel to Australia to give evidence. In the absence of any suggestions from you, we have identified an appropriate alternative. We invite ASIC to make an application to the Supreme Court of New South Wales for an order that a letter of request be issued to the English Court for Mr Weston to be examined in England. We can confirm that Mr Weston will not challenge such an application."
The e-mail also referred to Mr Weston's "considerable business commitments".

55 ASIC wrote again on 16 April 2004, asking Mr Weston's solicitors to specify with precision when Mr Weston would be likely to have pressing business commitments that would prevent him from being available for the hearing in Australia from July 2004. The solicitors replied by e-mail on 29 April 2004, saying that "due to the considerable travel and time burden that would be involved, Mr Weston is not prepared to attend the hearing in Australia in July", while adding that Mr Weston would be prepared in principle to give evidence by video link provided that it took place at a reasonable time of day in the United Kingdom, and that he would be prepared to give viva voce evidence in the United Kingdom. The e-mail referred again to Mr Weston's "considerable business commitments" and noted (somewhat inconsistently) that he had holidays planned in July and August. No specific business commitments were identified.

56 On 6 May 2004 Ms Rees of ASIC exchanged voice mail messages with Mr Weston's solicitor. In her message Ms Rees offered on behalf of ASIC to pay Mr Weston's travel expenses on a first-class basis and asked whether anything else could be done to assist Mr Weston to agree to come to Australia to give evidence. The solicitor replied that his client had "clearly" explained in correspondence why he was not prepared to come to Australia, and the solicitor did not anticipate that Mr Weston would alter his instructions. On 13 May 2004 Ms Rees had a telephone conversation with the English solicitor, in which she proposed that ASIC would pay for the solicitor to accompany his client to Australia if that would change Mr Weston's opinion. On 19 May she had another telephone conversation with the solicitor, in which the solicitor told her that Mr Weston was reconsidering his position, but that ASIC "should not get its hopes up that he would attend".

57 Mr Werner is currently the European Financial Controller of a company called Car Phones, which retails mobile and car phones in the United Kingdom. He has not made an affidavit, but he has had a telephone conversation with ASIC's solicitor, as a result of which an outline of evidence comprising some five pages has been prepared.

58 ASIC asked him to come to Australia to give evidence in December 2003, offering to pay his reasonable expenses. On 16 April 2004 ASIC wrote to him recording an understanding from previous conversations that Mr Werner would be unwilling to give evidence, whether the evidence were taken in Australia or the United Kingdom. The letter suggested evidence by video link or evidence in the United Kingdom as possible alternatives. Mr Werner has not replied to this correspondence. However, Ms Rees of ASIC was able to make contact with him by telephone on 19 May 2004, and she told him about the present application. Mr Werner said that he would consider his position and that he might agree to give evidence in United Kingdom by video link.

59 Ms Rees has given evidence that she is travelling to the United Kingdom early in June and proposes to attempt to communicate with Mr Weston and his solicitor, and Mr Werner, to encourage them to come to Australia to give evidence.

60 The evidence falls well short of establishing, for the purposes of s 7(2)(a), that either of the two witnesses is unable to come to Australia to give evidence. However, the evidence amply establishes, to the standard required of an interlocutory application of this kind (as to which, see Hardie Rubber Co Pty Ltd v General Tyre & Rubber Co (1973) 129 CLR 521, 558; DPP v Alexander, 33 NSWLR at 492-3), that neither Mr Weston nor Mr Werner is willing to come to Australia to give evidence, for the purposes of s 7(2)(a). The subsection does not invite the court to consider whether the witnesses have good reasons for not coming to Australia, but only whether they are willing to do so. The fact that both witnesses appear to be reconsidering their position in light of the present application, and that Ms Rees will endeavour to encourage them to come to Australia, do not derogate from the conclusion, on the balance of probabilities, that they are presently unwilling to come.

61 As the cases on audiovisual evidence to show, Australian courts are accustomed to expect that if an overseas witness will not make himself available to give evidence in Australia, a fairly detailed explanation is given, either in terms of serious illness or specific professional or business commitments. So far, Mr Weston has offered an explanation of only the vaguest kind. His attitude is puzzling. He has given substantial co-operation to ASIC by providing an affidavit on matters crucial to ASIC's case. One would have expected that he or his lawyers would have realised, from an early stage, the importance of the evidence and the corresponding likelihood that the defendants would wish to test it in cross-examination. One is reminded of the remarks of Rolfe J in the Cigna Insurance case, at [14], where His Honour said, "I would have assumed if Professor Lowenfeld was totally unprepared to travel to Australia to give his evidence he would have refused to make himself available as a witness at all".

62 Especially in recent times, courts, regulators and the international business community have been required, with the progressive globalisation of business activity, to come to grips with the cost and procedural difficulties of conducting major litigation with respect to entities that transcend national boundaries. By and large, business people who are required to give evidence in such cases recognise that where the litigation is being conducted in the country which has the strongest connection with the entity, considerations of cost and efficiency of the litigation as a whole necessitate some personal and business inconvenience, in the interests of the overall objective of achieving justice both nationally and globally. One presumes that many of ASIC's other witnesses (including some overseas witnesses) will have pressing business commitments making it inconvenient for them to attend for cross-examination, but they are prepared to do so. It must be quite rare for an overseas witness to co-operate with a party to the litigation by giving a detailed statement or affidavit, while then refusing to expose the evidence to cross-examination.

63 The idea that the court would, in such a case, follow the overseas witness to his place of residence, with the co-operation of the relevant overseas court, might seem bizarre or extravagant. But if the evidence is central enough, and audiovisual evidence is not feasible, and the witness cannot be persuaded to carry through the co-operation given in making the statement, there is no alternative but to do so.

64 One can only hope that Mr Weston and Mr Werner will be able to arrange their affairs so as to give evidence in Sydney, so that the enormous cost and disruption that will be involved in taking evidence in London can be avoided.

(b) Materiality of the evidence to any issue to be tried

65 As I have explained, a central part of ASIC's pleaded case against the defendants relates to the cash position of the One.Tel group in each month from January to May 2001. On the basis of Mr Weston's affidavit and Mr Werner's outline of evidence, they will both give evidence about a transfer of $26 million from the One.Tel company in United Kingdom to the One.Tel Australian company on 26 February 2001, and the effect of that transfer on the operations in the United Kingdom. They will give evidence of their respective conversations with Mr Silbermann and Mr Rich, generally along the lines that they resisted the transfer but were required to make it.

66 It is not necessary to set out this evidence in detail in the present judgment. It is enough to say that both Mr Weston and Mr Werner, according to their respective accounts, were involved in discussions with Mr Silbermann and Mr Rich, that Mr Werner refused to sign the transfer because it would, in his opinion, kill the UK business, and Mr Weston signed an authority for the transfer only after receiving certain assurances from the defendants.

67 Mr Weston will give evidence about the general management of creditors of the UK One.Tel company from about mid-March 2001, in particular concerning the deferral of payments to particular creditors at the end of the month, and also the action of suppliers in terminating their arrangements with the company after payments were deferred. Mr Werner will give evidence about the cash position of the UK One.Tel company and One.Tel's European operations, and the management of One.Tel's UK and European creditors during March and April 2001, and in particular the pressure applied by creditors for payment and the responses by Mr Silbermann and Mr Rich.

68 Senior counsel for ASIC submitted that this evidence is central to ASIC's case. I agreed that the evidence, on its face, appears to be highly material to the pleaded case, going to the heart of the cash flow position of the Australian, United Kingdom and European operations. Senior counsel for the defendants questioned whether the evidence could be said to be truly crucial to the plaintiff's case, given that similar evidence will be available from another witness, Mr Boaden, whose affidavit is before the court on the application. Senior counsel said the evidence is not material if it is merely for the purpose of bolstering up other evidence. In my opinion, however, the evidence of Mr Weston and Mr Werner goes to some crucial matters where they had individual roles to play, and their evidence will comprise, in each case, and an important component of ASIC's evidentiary case. Given their significant and separate roles, it cannot be said that evidence will merely "bolster up" other evidence upon which ASIC will rely.

(c) Whether justice will be better served by granting or refusing the order

69 Subparagraph 7(2)(c) requires the court to consider whether, having regard to the interests of the parties, justice will be better served by granting or refusing the order. ASIC invites the court to make the order, and presumably considers that it will be in its interests for the order to be made. The defendants do not oppose the making of the order, provided that their expenses, including their "incremental costs", are met and the procedure is carried out without imposing any extra burden on them.

70 I have considered whether, notwithstanding the views of the parties, it would be desirable to defer making any order for the time being, to see whether Ms Rees of ASIC is able to persuade the two witnesses to change their minds and come to Australia. I have decided, however, after hearing the submissions of senior counsel for ASIC, that is desirable to make orders now, so as to put in train a process that could take some time to bring to fruition.

71 It will be necessary for a letter of request to be settled in final form, and for arrangements to be made for payment into court of an amount to cover the court expenses (discussed below). Although Senior Master Turner has been led to expect that a letter of request will be transmitted to his court, he will need some time to consider the matter, and any concerns he may have will need to be addressed. If the English court decides it is appropriate to act on the letter of request, it will be necessary for arrangements to be made for the time, date and place of the examinations, and for process to be served on the witnesses.

72 The hearing of the proceeding is due to begin in Sydney on 2 August 2004. To assist the planning of the hearing by ASIC as plaintiff, and by the court, it would be desirable to know that the London examination has been organised, and have the dates, before the hearing commences.

73 I have therefore decided that I should make an order for the issuing of a letter of request now, so that the process can be commenced. I wish to make it clear, however, that it will be highly in the interests of the court and the parties, and in this case the Australian community generally, if the implementation of this expensive procedure can be avoided by the witnesses agreeing to come to Australia to give evidence.

Other matters

74 The order that the plaintiff seeks, for the issue of a letter of request for examination of the witnesses in London before the trial judge as examiner, appears to be an order "for" the examination under rule 1A: see Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 838 (Einstein J). Part 36 rule 6 empowers the court to permit a party to any proceeding in relation to which an order has been made under Part 27 rule 1A, to tender as evidence in the proceeding the evidence of a person taken in the examination held as a result of the order or a record of that evidence. To avoid any doubt as to whether the product of the examination in London may be tendered in the Australian proceeding, it may be prudent for the court to supplement the proposed order for the issue of a letter of request, once the competent judicial authority in the United Kingdom has acted upon it, by making another order under rule 1A.

75 Part 27 rule 1C provides that a judge of this Court must not act as examiner otherwise than with the concurrence of the Chief Justice. In this case, while the Chief Justice is aware that the application has been made, his concurrence should be sought only when the form of a letter of request has been settled, and the financial arrangements contemplated by Part 27 rule 1C have been settled, so that the full proposal is before him.

76 Part 27 rule 1C sets out a procedure under which, where (as in this case) an application is made for an order for examination outside Australia under Part 27 rule 1A, the applicant requests the proposed examiner to certify the amount which in his opinion should be paid into court as provision for expenses in relation to the examination. The examination order is expressed to be conditional upon that payment being made within a specified time. The rule empowers the registrar to make an application to the court to increase the amount paid into court, if he forms the opinion that the amount already paid or payable is or may be insufficient to provide for the expenses of the examination. The rule also provides for a refund of any unpaid amount after conclusion of the examination, upon the examiner certifying that there are no more expenses to be paid.

77 ASIC's application does not, at present, comply with Part 27 rule 1C. Instead, ASIC has proffered various financial undertakings, to meet certain expenses of the court and of the other parties to the proceeding. The undertakings are to be found in the affidavit of Joanne Rees made on 20 May 2004.

78 At the hearing of the application, the defendants did not object to proceeding on the basis of undertakings by ASIC to meet their expenses, but they said that the undertakings of 20 May 2004 are insufficient because they do not extend to "incremental costs". Senior counsel for the defendants explained in his oral submissions that "incremental costs" were costs incurred by his clients in paying their lawyers for the time taken to travel to and from the United Kingdom and to recuperate and adjust to the new time zone. He said that the incremental costs of the defendants would be equivalent to three days' work by each of their lawyers. The incremental costs for all of the lawyers of the plaintiff and the defendants were estimated by consensus at $60,000-$80,000. Eventually senior counsel for ASIC indicated that his client would be prepared to meet incremental costs, although there may need to be some further discussion as to their quantification.

79 There is a problem with ASIC's undertaking to meet the court's expenses. On my understanding of the court's practice, the undertakings make inadequate provision for expenses in certain respects, and the drafting of the undertakings may have the effect of permitting ASIC to decline to meet expenses if it does not regard them as reasonable. It is manifestly unacceptable for the trial judge to undertake an overseas examination in circumstances where his expenses might be subjected to some process of review for "reasonableness" by one of the litigants before him. Presumably Part 27 rule 1C has been designed, in part, to avoid any such difficulty, by requiring the examiner to certify an amount which must then be paid into court, to be administered by the court rather than the paying party. It is very important, in my view, that the rule be followed meticulously, in a fully transparent fashion, in the present case.

80 Although, under the rule, it is for the examiner (in this case me, as the trial judge) to certify the amount to be paid into court as provision for expenses in relation to the examination, I believe it is desirable for the amount to be determined by a judicial officer other than me, since it might be perceived that there would be a conflict of interest in the examiner determining the level of his own expenses. I shall therefore ask the Chief Judge in Equity to appoint another judicial officer to make that determination, on the basis that I shall formally certify, for the purposes of the rule, the amount so determined.

81 Finally, the defendants have submitted that the court should include in the letter of request a request that the witnesses be required to produce specified documents for the use of the parties in taking their evidence, pursuant to the powers under s 8(2) of the Foreign Evidence Act. An example of such a letter of request may be found in Novotny v Todd [2002] WASCA 79 (Full Court of the Supreme Court of Western Australia).

82 It seems to me that the court has the power to do so, and that the efficacy of the examination process and the conduct of the trial generally will be assisted if limited and specific orders for production of documents are made. I am concerned, however, to ensure that the letter of request process is not unduly delayed or made complicated by the addition of a request that the witnesses be required to produce documents. To that end, I regard it as very important that the classes of documents production of which is to be the subject of a letter of request should be specified narrowly and precisely. Senior counsel for ASIC expressed some concern on this score, and I have encouraged the parties to have further discussions to see if greater precision can be achieved in the description of the documents. If necessary, I shall resolve any disputes by hearing a supplementary application.

Conclusions

83 I have decided to dismiss the application insofar as it seeks orders for the taking of the evidence of Mr Weston and Mr Werner by audiovisual facilities. However, I shall grant the application in its alternative form, by making appropriate orders for the issue of a letter of request to the appropriate judicial authority in the United Kingdom, for the examination of Mr Weston and Mr Werner in London before me as trial judge. I shall direct ASIC to prepare the letter of request in final form, to reflect these reasons for judgment, and to incorporate a request that the witnesses be required to produce certain documents. I shall bring the matter back before me when the final form of letter of request is ready.

84 It will be necessary for ASIC to comply with Part 27 rule 1C by application before another judicial officer of the Equity Division.

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Last Modified: 06/01/2004