In the matter of Mustang Marine Australia Services Pty Limited (in liquidation)
[2015] NSWSC 2139
•16 October 2015
Supreme Court
New South Wales
Medium Neutral Citation: In the matter of Mustang Marine Australia Services Pty Limited (in liquidation) [2015] NSWSC 2139 Hearing dates: 16 October 2015 Date of orders: 16 October 2015 Decision date: 16 October 2015 Jurisdiction: Equity - Corporations List Before: Brereton J – Corporations List Decision: Evidence of witnesses to be given by audio-visual link.
Catchwords: PROCEDURE – evidence by audio-visual link – where witness unable and unwilling to appear in Sydney for cross-examination – where witness willing to appear by audio-visual link from Singapore – Court’s power to issue compulsory process to person outside jurisdiction – enforceability of compulsory process in other jurisdictions – taking evidence on commission as alternative method – where audio-visual link preferable as a matter of economy and Court’s ability to evaluate evidence. Category: Procedural and other rulings Parties: Mitchell Ball in his capacity as official liquidator of Mustang Marine Australia (Services) Pty Ltd (in liquidation) (first plaintiff)
Mustang Marine Australia Services Pty Ltd ACN 129 124 223 (second plaintiff)
Standard Bank Asia Ltd (first defendant)
Russell Watkins (second defendant)
Martin Sheridan Lodge (third defendant)
Phillip Armstrong (fourth defendant)
Christopher Heaton (fifth defendant)
Standard Bank PLC (sixth defendant)Representation: Counsel:
Solicitors:
D L Cook (plaintiffs)
G Lucarelli (first and sixth defendants)
J O’Loughlin (second defendant)
R J May (third and fourth defendants)
Paul Bard Lawyers (plaintiffs)
Minter Ellison Lawyers (first and sixth defendants)
William James Lawyers (second defendant)
DLA Piper Australia (third and fourth defendants)
File Number(s): 2012/228731
Judgment (ex tempore)
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HIS HONOUR: By interlocutory process filed on 8 October and amended on 16 October 2015, the first and sixth defendants seek orders permitting the evidence of three witnesses – Michael Richard Cook, David Feld and Garry John Hamilton – to be given by way of audio-visual link, and alternatively to be taken on commission. The plaintiff does not oppose an order being made for the evidence of David Feld and Garry John Hamilton to be given by audio-visual link. However, the plaintiff opposes the order in respect of Michael Richard Cook.
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Mr Cook is a former officer of Standard Bank PLC, the sixth defendant in the proceedings. At relevant times he was the Managing Director, Global Head of Business Support and Recovery for the Corporate and Investment Banking Division. He was closely involved in important parts of the factual matters that constitute the case. His evidence is important to the defendants' case and his cross-examination will be important to the case as a whole.
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Counsel for the plaintiffs has indicated that he would be prepared to limit the cross-examination to permit it to be accommodated in one day, although if it proceeded without constraint it might extend somewhat longer than that; but I think it is fair to say that the cross-examination is likely to occupy between one and two days, though it could be conducted in Australia in one day.
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Mr Cook is no longer an employee of the first and sixth defendants. He is now employed by the Standard Chartered Bank in the United Kingdom, which bank, the Court is informed and accepts, has no connection with the first and sixth defendants, though there was once apparently a connection. Accordingly, Mr Cook is not in the control of the defendants and they cannot, as his former employer, compel his attendance in Australia to give evidence. He has sworn a substantial substantive affidavit in the proceedings and, more recently, a short affidavit in support of the present application, the substance of which is that due to the exigencies of his employment, which might require him to travel to any part of the world at short notice, his employer is not prepared to grant him leave to travel to Australia for the purposes of giving evidence at the trial – though the employer was apparently quite happy to permit him to work from the Singapore office for a week during the hearing whence he might give evidence by audio-visual link. More recently, an affidavit has been filed and read from an officer of what appears to be a related company of the sixth defendant, who says that Mr Cook has informed him that while he is prepared to work from Singapore during the period 9-12 February and to make himself available to give evidence by audio-visual link during that period, he is not prepared under any circumstances to travel further to Sydney to give evidence.
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Although there is authority for the view that the Court can issue compulsory process such as a subpoena addressed to a person beyond its territorial jurisdiction, it is plain enough that the difficulties associated with enforcement of such a process mean that the jurisdiction to do so is exercised with reticence and caution. It could not be assumed that a subpoena issued from this Court addressed to Mr Cook would be enforced in a foreign jurisdiction in such a way as to result in his appearance in Sydney in February of next year. Ultimately, if Mr Cook were entirely uncooperative, the plaintiff would be entitled to have his evidence taken on commission, and the transcript of the evidence taken on commission tendered at the hearing – unless of course the Court were to sit also as the examiner and take the evidence on commission. What is currently proposed has to be viewed against that fall-back position, which is what would pertain if Mr Cook were entirely uncooperative. He is apparently prepared to cooperate at least to the extent of making himself available for examination by audio-visual link in Singapore. Both in terms of economy in the context of this case, and in terms of the Court's ability to evaluate the evidence, taking the evidence by audio-visual link is likely to be highly preferable to taking it on commission – unless, as I have said, the Court were to be the examiner, in which respect the expense factor would be prohibitive for a single witness.
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In those circumstances, it seems to me plain enough that the best feasible way of getting Mr Cook's evidence before the Court is to take it by audio-visual link from Singapore. I am somewhat reinforced in that view by the proposal that the evidence be taken in one of the Singapore technology courts. That means that the evidence will be taken not from some casual or informal location, but in a setting which will replicate that of a courtroom, with the associated formality that that involves.
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As it seems to me, while it would be preferable if he could give evidence in person, the Court cannot practically insist on that and, accordingly, the next best solution is to take his evidence by audio-visual link. Accordingly, on the defendant's interlocutory process, the Court orders that:
The evidence of the witness Michael Richard Cook, including cross-examination, may be given by audio-visual link from a technology Court in Singapore.
The evidence of David Feld, including cross-examination, may be given by audio-visual link from London.
The evidence of Garry John Hamilton, including cross-examination, may be given by audio-visual link from Brisbane.
The costs of the audio-visual links be paid by the first and sixth defendants in first instance.
The costs of the interlocutory process be costs in the proceedings.
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Decision last updated: 22 September 2017
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