Australian Securities and Investments Commission v Wilson

This case involves an application by the Australian Securities and Investments Commission (ASIC) to the Federal Court to allow witnesses to give evidence and counsel to present submissions via video link due to the COVID-19 pandemic. The primary respondent, Mr Wilson, contests this application, asserting that it may result in an unfair trial if the evidence is not presented in person, particularly regarding the credibility of a key witness, Dr Castella. The court was required to decide whether the discretion to allow video links should be exercised in favour of adducing the evidence of the United States and Melbourne-based witnesses via video link, given the international travel restrictions and the importance of Dr Castella's evidence to the outcome of the case.

The court considered several factors in exercising its discretion, including the importance of Dr Castella's evidence to the case, the risk that Mr Wilson would not have a fair opportunity to test the evidence of Dr Castella if it was not given in person, and the need to balance the overriding purpose of facilitating the just resolution of disputes quickly, inexpensively, and efficiently. The court noted that the choice in every case cannot be determined solely by reference to general principles but by applying those principles to the facts and circumstances of the particular case. It found that there was a real risk that Mr Wilson would not have a fair and proper opportunity to test the evidence of Dr Castella if it was not given in person, and that the outcome on a critical issue relies to a significant extent on Dr Castella's evidence. However, the court ultimately dismissed the application, finding that the overriding purpose of facilitating the just resolution of disputes quickly, inexpensively, and efficiently outweighed the need for in-person evidence in this case.

The court's reasoning was based on the fact that the evidence of relevant written communications between Mr Wilson and Dr Castella during the key period is limited, and the nature of Dr Castella's evidence in this particular case is largely contained in two affidavits that ASIC has filed. The court found that the risk of unfair trial did not outweigh the need to balance the overriding purpose of facilitating the just resolution of disputes quickly, inexpensively, and efficiently. The court also noted that the application was dismissed with liberty to apply, meaning that ASIC could reapply if circumstances change. The case management hearing was adjourned to 2 September 2020 at 9.30 am WST, and the costs of the application and of the case management hearing on 19 June 2020 were costs in the cause.