Federal Court of Australia

Australian Securities and Investments Commission v Rio Tinto Limited [2020] FCA 1721

ORDERS

THE COURT ORDERS THAT:

1.    The seven-week hearing on liability listed to commence on 1 March 2021 be vacated.

2.    The proceeding be listed for a seven-week hearing on liability commencing on 28 February 2022.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J:

Introduction

1    In this proceeding, which was commenced on 1 March 2018, the Australian Securities and Investments Commission (ASIC) alleges that the first defendant, Rio Tinto Limited (RTL), contravened various provisions of the Corporations Act 2001 (Cth) (the Act) in relation to statements made in its 2011 Annual Report and with respect to the preparation and lodgement of its 2012 Interim Financial Statements. It also alleges that RTL contravened s 674(2) of the Act in failing to comply with its continuous disclosure obligations. In that regard, ASIC alleges that RTL failed to disclose a substantial impairment in the carrying value of the operating assets of its venture called Rio Tinto Coal Mozambique in its 2012 Interim Financial Statements. ASIC’s case is based on events that took place from 2011 to early 2013.

2    At relevant times, the second defendant, Mr Albanese, was an executive director and the Chief Executive Officer of RTL, and the third defendant, Mr Elliott, was an executive director and the Chief Financial Officer of RTL. ASIC alleges that Mr Albanese and Mr Elliott breached their duties as directors in various ways, in contravention of s 180(1) of the Act. It also alleges that they contravened s 344(1) of the Act in failing to take all reasonable steps to comply with or secure compliance by RTL with Pt 2M.3 of the Act with respect to its 2012 Interim Financial Statements.

3    ASIC seeks declarations in respect of the allegedly contravening conduct and penalties against each defendant. With respect to Mr Albanese and Mr Elliott, it also seeks an order that each be prohibited from managing a corporation for such period as the Court sees fit.

4    On 23 August 2019, the proceeding was set down provisionally for a five-week hearing on liability commencing on 1 March 2021. At that time no one could have possibly known that the world would be confronted with the COVID-19 pandemic. At a case management hearing on 8 September 2020, when the anticipated hearing dates remained provisionally fixed, it was foreshadowed that Mr Albanese and Mr Elliott might, individually, apply to the Court to vary the commencement date for the hearing. To crystallise the issue, I fixed the hearing on liability to commence on 1 March 2021 for seven weeks, the additional two weeks being allocated to deal with the possibility that either or both Mr Albanese and Mr Elliott might elect to give evidence.

5    At that time, I also made an order that any application to vacate the hearing dates be filed by 2 November 2020. I did so at ASIC’s request on the basis that it wished to have certainty, sooner rather than later, on the question of whether the presently-appointed hearing would be vacated because of COVID-19 considerations affecting Mr Albanese and Mr Elliott.

6    Mr Albanese and Mr Elliott each filed an interlocutory application seeking to vacate the hearing dates. Mr Albanese seeks an order that the hearing be relisted to commence in February 2022 or at another date suitable to the Court. Mr Elliott seeks an order that the hearing be relisted to commence in late 2021 or at a subsequent date suitable to the Court. The premise of each application is that, at the later time, Mr Albanese and Mr Elliott would be able to travel to Australia safely with the benefit of effective vaccination.

7    A substantial amount of evidence has been tendered in respect of each application, which is opposed by ASIC. RTL has maintained a neutral position. It neither consents to nor opposes the applications.

Mr Albanese

8    Mr Albanese is a citizen of the United States of America (the United States). He does not hold Australian citizenship or permanent residency in Australia. He is 63 years old and currently resides in New Jersey. Due to the COVID-19 pandemic, he has not travelled domestically or outside the United States by air since March 2020.

9    Mr Albanese ceased being an executive director and the Chief Executive Officer of RTL in early 2013. Since that time he has not held any Australian directorships and has no present intention of seeking or accepting an appointment to an Australian directorship.

10    Mr Albanese is represented in this proceeding by senior and junior counsel and the firm Jones Day. He strongly wishes to be present in Sydney, in person, for the duration of the hearing, and for a period of at least two weeks post-quarantine before the hearing, to provide direct instructions to his legal representatives. But for the risks presented by long-distance travel to Australia from the United States, where COVID-19 infection rates are very high, and were he permitted entry into Australia, Mr Albanese would have sought to arrive in Australia four weeks before 1 March 2021. However, because of the significant health risks associated with international travel, particularly for a person of his age, he, understandably, does not wish to incur those risks, in the absence of effective vaccination.

11    The allegations made against Mr Albanese are very serious, with implications for his reputation. He believes that he will be significantly prejudiced in his ability to participate in the conduct of his defence if he is not physically present in Australia for the duration of the hearing on liability, as he wishes to be.

Mr Elliott

12    Mr Elliott is a citizen of the United Kingdom. He does not hold Australian citizenship or permanent residency in Australia. He is 64 years of age and currently resides in London.

13    Mr Elliott ceased being an executive director and the Chief Financial Officer of RTL in 2013, after 33 years of employment with the company. Except for this proceeding, and a proceeding concerning generally the same subject matter brought by the Securities and Exchange Commission in the United States, no regulatory proceedings have ever been brought against him.

14    While at RTL and subsequently, Mr Elliott was a member of the boards of Cadbury plc (from 2007 to 2010), SABMiller plc (from 2013 to 2016), and Royal Dutch Shell plc (from 2010 to 2017). He served as chair of the audit committees of Cadbury plc and Royal Dutch Shell plc whilst on the boards of those companies. He was a member of the United Kingdom Takeover Panel from 2012 to 2017. He is currently the chairman of the Board of Trustees of Sir John Soane’s Museum in London. He has served on the development board of the Canterbury Cathedral Trust, and has been the Lay Chairman and Treasurer of his local Parochial Church Council since 2014. He is also the founding Chairman of The Prudence Trust, a charitable foundation focused on mental health.

15    Mr Elliott has not been a director or officer of any Australian company since 2013 and has no present intention of becoming a director or officer of any Australian company.

16    Mr Elliott is represented in this proceeding by senior and junior counsel and the firm Allen & Overy. Like Mr Albanese, Mr Elliott also strongly wishes to be present in Sydney, in person, for the duration of the hearing on liability, and for up to two weeks beforehand, to provide instructions to his legal representatives.

17    Mr Elliott is concerned about the possibility of contracting the COVID-19 virus during travel from the United Kingdom to Australia. However, he regards his presence in Australia as being so important to the conduct of his defence and his ability to provide instructions to his legal representatives in real-time, that he is prepared to undertake that travel, if permitted to do so by the Australian authorities.

18    The allegations made against Mr Elliott are also very serious, with implications for his reputation. He believes that he will be seriously prejudiced if he is required to participate in the hearing remotely given the significant time difference between Australia and the United Kingdom.

InwardS Travel restrictions

19    As I have noted, despite his concerns about travelling to Australia, Mr Elliott would do so if permitted.

20    The Australian Government has imposed restrictions on travel to Australia in response to the COVID-19 pandemic. In order to enter Australia at present, a person requires an exemption from Australia’s inwards travel restrictions; a seat on one of the limited flights available; and, for non-citizens and non-permanent residents, a valid visa.

21    A person is exempt from Australia’s inwards travel restrictions if he or she falls within an “exempt” category. Those presently exempted are: Australian citizens and permanent residents and members of their immediate family; certain persons from New Zealand; diplomats; airline and maritime crew; persons transiting Australia for 72 hours or less; persons recruited under certain Government-approved schemes; and holders of a Business Innovation and Investment visa. Mr Elliott does not fall within these categories; nor does Mr Albanese.

22    A person can be granted an “individual exemption”. The Australian Border Force Commissioner (the Commissioner) has been authorised, by the Prime Minister through the National Security Committee, to consider, on a case-by-case basis, requests for inwards travel where there are compassionate or compelling circumstances. An application for an individual exemption is made on-line via the Travel Exemption Portal to the Commissioner. It cannot be made more than three months before the date of intended travel.

23    The Commissioner has published guidelines for decision-making about individual exemptions. According to the guidelines, a person generally would be considered to satisfy the requirements for exemption where he or she will be travelling with a minor who is an Australian citizen or permanent resident (to ensure appropriate guardianship and welfare); has been invited by the Australian Government to assist with the COVID-19 response; has skills critical to Australia’s COVID-19 response or economic recovery; has work in the media or entertainment industry and there is evidence of significant economic benefit to Australia and support from a relevant State or Territory Government; can demonstrate strong compassionate circumstances; or can demonstrate that a strong economic, scientific, cultural or other benefit to Australia would result from him or her being permitted to enter Australia. A decision-maker will also consider information on “any other relevant issues” including, importantly, ongoing court proceedings. An exemption can also be provided where the Commissioner considers it to be in the public interest to do so.

24    The New South Wales Government currently limits the number of persons permitted to arrive daily in New South Wales by air to 350 persons. All overseas arrivals must remain in quarantine for 14 days in designated accommodation, which is determined on the day of arrival.

25    ASIC accepts that, if the hearing were to proceed on 1 March 2021, it is unlikely that Mr Elliott (or, for that matter, Mr Albanese) would be able to be physically present in Sydney during the hearing. This concession is appropriately made, especially in light of the evidence adduced in support of Mr Albanese’s application. His solicitors, Jones Day, wrote to the Commissioner in relation to whether Mr Albanese would be permitted to travel to Australia in early 2021 for the purpose of attending the hearing in person. They received a response which, in substance, made clear that, for an exemption application to be considered, Mr Albanese would require a letter of support from the Court or ASIC outlining the reasons why Mr Albanese’s personal attendance would be required in Sydney and why he could not attend the hearing remotely.

26    Jones Day wrote to ASIC asking whether it would be willing to provide support for an application by Mr Albanese for an individual exemption. It received a response from ASIC’s Litigation Counsel and Solicitor, Mr Turner, stating that if Jones Day received a response from the Commissioner that ASIC’s support would improve the prospects of Mr Albanese being granted an individual exemption, then he would be happy to speak with a decision-maker from the Australian Border Force to answer any questions that decision-maker might have.

27    Without in any way wishing to be understood as criticising ASIC (for no criticism is intended or warranted), its response is far from an endorsement of the need for Mr Albanese’s physical presence in Australia during the hearing. That response must be seen, and would no doubt be seen by the Commissioner, as one reflecting ASIC’s opposition to vacating the hearing dates and signifying, clearly enough, ASIC’s own view that it would be appropriate for the presently-fixed hearing to proceed using remote access technology.

28    The only realistic way in which to consider the present application is that, absent vacation of the presently-fixed hearing dates, the hearing will proceed on 1 March 2021 as, potentially, a seven-week hearing conducted using remote access technology, with Mr Albanese present in New Jersey and Mr Elliott present in London.

AT Least Three time zones

29    The tables below set out the significant time differences involved in holding a seven-week hearing in Sydney from 1 March 2021 using remote access technology. At least three time zones would be involved. A number of tables are necessary to illustrate the relative timing changes due to different daylight saving times beginning and ending.

(a)    Monday, 1 March 2021 to Friday, 12 March 2021:

(b)    Monday, 15 March 2021 to Friday, 26 March 2021 (this table proceeds on the basis that daylight savings begins in New Jersey on Sunday, 14 March 2021):

(c)    Monday, 29 March 2021 to Thursday, 1 April 2021 (this table proceeds on the basis that daylight savings begins in London on Sunday, 28 March 2021 and Good Friday is on Friday, 2 April 2021):

(d)     Tuesday, 6 April 2021 to Friday, 16 April 2021 (this table proceeds on the basis that daylight savings ends in Sydney on Sunday, 4 April 2021 and Easter Monday is on Monday, 5 April 2021):

30    In the course of submissions I was informed that a number of the witnesses are located in other time zones; some are in the middle of America and some are on the West Coast; some are in Perth, Australia. The need to accommodate witnesses in other time zones would add further complication to the conduct of the hearing.

The submissions

31    Mr Albanese submits that the effective conduct of his defence will be substantially prejudiced if he has to participate in the hearing remotely, using electronic modes of communication, in circumstances where he is physically apart from, and in a significantly different time zone to, his legal representatives.

32    There is no doubt that the case against the defendants involves a significant number of detailed factual issues and documents. RTL has itself filed and served extensive lay and expert evidence. As I have already noted, the case against the defendants is one that concerns the potential for commercial development of mining assets in Mozambique.

33    Mr Albanese points to the fact that the evidence to be adduced by ASIC and RTL includes meetings and events which, it is said, he attended; discussions and communications which, it is said, were between him and others; briefings and documents which, it is said, were provided to or by him; his asserted practices or conduct during the relevant period; feedback which, it is said, he gave; and decisions which, it is said, he was involved in.

34    Given the availability of the privilege against self-exposure to a civil penalty, which he asserts, Mr Albanese has not been required to file and serve any evidence that is responsive to the evidence filed by ASIC and RTL on these matters. However, given the estimated duration of the hearing on liability, and the defence he has filed, it can be anticipated that Mr Albanese will mount a substantial defence to the allegations which have been made against him.

35    Mr Albanese submits that, in the conduct of his defence, the necessity for him to rely on electronic modes of communication to provide detailed instructions, which may well be necessary in the course of cross examination of these witnesses, will not be efficient or effective, and may involve delays and other difficulties which would impede the presentation of his defence. Further, Mr Albanese does not typically work through the night and has expressed his concern about his ability to concentrate and stay alert during such hours over the extended period of the hearing.

36    As Mr Albanese also points out, his effective participation in the hearing would also require him to participate in conferences—possibly lengthy conferences—with his legal representatives, most likely on a daily basis during the hearing. This will impose an additional burden on him seeking to work during abnormal hours.

37    Mr Albanese also refers to the possibility that he might give evidence. He has expressed concern that, if he were to give evidence, he would have difficulty in doing so during such abnormal hours, particularly if he has been fatigued by working through the night for many weeks prior to giving that evidence.

38    Mr Elliott advances similar submissions. He submits that this proceeding is a challenge to his professional reputation built over a lifetime’s work involving a 33 year corporate career which has included holding directorships on the boards of prominent public companies. He submits that the seriousness of the allegations made against him, and their implications for his professional reputation, mean that it is essential that he be able to closely participate in the hearing. He submits that the fact that the Court and the parties will be dispersed across three significantly different time zones (leaving aside the further complication that some witnesses will be in other time zones) poses a real risk of practical injustice to him. He submits that the hearing on liability will require the determination of complex issues of fact. He believes that it will be inevitable that instructions will be required from him during the course of the hearing, in some cases on an urgent basis such as when a witness is being cross-examined. He submits that, given the substantial time difference between London and Sydney, he will not be able to communicate with his legal advisers as fully and effectively as he would if he were present in Sydney. He is also concerned that he will not be able to operate the required technology and software adequately, or address any operational problems that might arise during the course of the hearing.

39    Like Mr Albanese, Mr Elliott has invoked the privilege against self-exposure to a civil penalty. Once again, it can be anticipated that Mr Elliott will mount a substantial defence to the allegations which have been made against him.

40    ASIC submits that the hearing should proceed on 1 March 2021 but that every step should be taken to minimise any potential prejudice identified by Mr Albanese and Mr Elliott. ASIC notes that it and RTL have filed and served their evidence, and the hearing is ready to proceed. It submits that there is a minimal risk of an unfair or unjust trial if the hearing were to proceed using remote access technology with Mr Albanese in New Jersey and Mr Elliott in London because both are represented by very experienced senior counsel and each has retained a leading litigation law firm to act for him. ASIC points to the fact that its evidence in chief was served in July 2019 and its evidence in reply (limited to reply expert evidence) was served in early September 2020. It submits that, in these circumstances, Mr Albanese’s and Mr Elliott’s legal representatives will have had many months to obtain detailed instructions.

41    Further, ASIC contemplates that Mr Albanese and Mr Elliott will be able to watch the hearing in either real-time or at times more convenient to them before each succeeding hearing day, and will have the benefit of the transcript of the proceeding. It submits that instructions can be sought at any time prior to the commencement of the next hearing day and that it is unlikely that there will be any need for such instructions to be taken immediately after the close of each hearing day. It submits that, in any event, Mr Albanese and Mr Elliott will have access to telephone or platforms such as WhatsApp which would enable them to give instructions to their legal representatives in real-time.

42    ASIC submits that Mr Albanese and Mr Elliott have posed only theoretical problems to the hearing being conducted using remote access technology and that, should any need arise, such problems can be met with practical solutions. For example, if instructions are required before the completion of the cross-examination of any witness, the Court would be able to adjourn the hearing to the following day to afford an opportunity to the defendants to provide instructions before completion of the cross-examination. Further, if it becomes apparent that matters were not put to a witness because of the inability to obtain timely instructions, the witness could be re-called to permit those matters to be put. If unexpected matters arise, adjournments can be sought for short periods.

43    ASIC submits that should Mr Albanese or Mr Elliott elect to give evidence, any apprehension they might have about giving evidence at abnormal times of the day can be accommodated by the Court sitting outside normal sitting hours—earlier for Mr Albanese and later for Mr Elliott.

44    ASIC relies on the recent decision given in ASIC v GetSwift [2020] FCA 504 (GetSwift) in which the Court refused an adjournment of a hearing on liability in a civil penalty proceeding due to the COVID-19 pandemic, where two defendants were individuals located in New York. In that case, Lee J found that it was possible, through modern technology, for the trial to be conducted fairly, and for the legal teams to work together remotely.

45    Finally, ASIC notes that the premise of the present applications is that, if the hearing were to be adjourned to a later date, Mr Albanese and Mr Elliott could be physically present at the hearing, on the basis that an effective vaccine would be available to enable them to travel safely to Sydney. ASIC disputes the soundness of that premise. It submits that it is uncertain whether by late 2021 or early 2022, Mr Albanese and Mr Elliott would be prepared and able to access the required doses of an effective vaccine; whether the necessary exemptions from Australian border controls will be obtained; and whether international air travel will be sufficiently safe to permit travel to Australia. ASIC submits that it is not possible to quantify in any coherent or empirically sound manner the extent of these uncertainties and that, if the Court were prepared to accede to the present applications, it would, in reality, be adjourning the hearing date for an indeterminate time.

Analysis

46    The Court must exercise its case management powers in a way that facilitates the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible: s 37M of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). As the words “as possible” signify, the latter injunction invokes relative standards judged against the circumstances that present themselves at the time the decision is to be made. Moreover, they are not standards that are necessarily harmonious with each other. For example, a step which leads to a quick outcome might not necessarily be one that is inexpensive or efficient, compared to other options; a step that is efficient might not necessarily lead to a quick outcome or be inexpensive, compared to other options. However, guided by these precepts, and the imperative to ensure that a just resolution of disputes is secured, the Court must come to an evaluative judgment as to how the individual proceeding before it is best managed in the interests of justice. There will be competing considerations.

47    I do not think that, with the experience gained over the last eight months in which, generally speaking, the conduct of mainstream civil litigation in the Court has changed rapidly and dramatically, it can be denied that hearings can be conducted quickly, inexpensively and efficiently using remote access technology, resulting in the just resolution of disputes according to law. But the Court has not proceeded on the basis that all hearings should be conducted using remote access technology just because they can be conducted in that way. As I have said, an evaluative judgment must be made as to how the matter before the Court should best proceed, bearing steadily in mind the requirement of the overarching purpose stipulated in s 37M of the FCA Act. Circumstances might dictate that the options available to the Court are limited; or they might reveal a broader range of options which are appropriate to be considered for case management. There is no “one size fits all” option. To proceed as if there were such an option, would be to ignore the duty which s 37M itself imposes.

48    The competing arguments advanced in the parties’ submissions point in different directions. At a broad level, I accept that the hearing of this proceeding could proceed using remote access technology with Mr Albanese participating in New Jersey and Mr Elliott participating in London. I accept that, on present indications, such a hearing would achieve a just resolution of the matters in issue. But it does not follow that that would be the best case management option.

49    In deciding on the best case management option, the following matters strike me as being particularly important.

50    First, as I have noted, the events with which the proceeding is concerned took place in 2011 to early 2013. The proceeding was commenced some years later in March 2018, well after the events occurred. At the time the proceeding was commenced, neither Mr Albanese nor Mr Elliott were directors or held office in RTL or any Australian company. In fact, by that time, they had not held office in RTL for some five years. Further, neither Mr Albanese nor Mr Elliott is a director or holds office in any Australian company at the present time or seeks to do so in the future. These facts are important when it is borne in mind that the protective relief sought by ASIC against each individual is that, under s 206C of the Act, he be prohibited from managing a corporation for such period as the Court thinks fit. This distinguishes the present case from one where such relief is sought against an individual who remains a director or officer of an Australian corporation while proceedings, seeking that relief, are pending. This is not a case where the Australian public is exposed to the risk of a person acting as a director or officer of an Australian company who, because of his or her conduct, should not be so acting. Further, there is no other existing legal proceeding which is dependent on the present proceeding being heard in March/April 2021.

51    Whilst there is certainly an argument that, given the time that has elapsed since the alleged events occurred, the proceeding should be heard sooner rather than later, there is no imperative that the present proceeding be heard in March/April 2021. ASIC points to no prejudice if the proceeding is not heard then, beyond the fact that it is a regulatory proceeding which, by its nature, should be determined promptly because serious issues have been raised. All agree that the issues raised are serious—indeed, very serious. But, as Mr Albanese’s and Mr Elliott’s submissions make clear, that consideration cuts both ways. What needs to be considered are the objectives that are sought to be achieved by continuing, at the present time and in the present circumstances, to commit to a seven-week hearing commencing on 1 March 2021. ASIC, fairly, does not contend that it would suffer any prejudice in the presentation of its case if the proceeding was not heard in March/April 2021 or if its commencement were to be delayed as the two individual defendants seek. The same is true of RTL and the presentation of its case. As to the public interest, there is no suggestion that the Australian public would be at risk, and thereby prejudiced, if the proceeding was not heard in March/April 2021, for the reasons I have explained. However, conversely, Mr Albanese and Mr Elliott each say that they would suffer prejudice if the matter were to proceed to a hearing in March/April 2021 rather than at a later time.

52    Secondly, I accept unhesitatingly that the conduct of the hearing by remote access technology with Mr Albanese in New Jersey and Mr Elliott in London will place enormous physical and mental demands on them given their desire to participate in the hearing in real-time. To some extent the effect of time differences can be ameliorated by the Court varying its sitting hours, but the ability to vary sitting hours has its limits, especially when a seven-week hearing is in prospect. Further, the difficulty is not managing just two time zones but three vastly different, and potentially more, time zones in a given hearing day. Given the serious allegations against them and the relief that is sought (pecuniary penalties and disqualification orders), it is reasonable, understandable and entirely appropriate that Mr Albanese and Mr Elliott would wish to participate in the hearing in real-time in the protection of their own interests.

53    What is more, senior counsel for Mr Albanese, and senior counsel for Mr Elliott, have each expressed the earnest desire to have his client available in real-time to consult with, including during the course of cross-examinations. Mr Albanese and Mr Elliott are not merely actors in the alleged events. The subject matter of the proceeding is the prospectivity of mining assets in a remote part of Mozambique and what was disclosed, or not disclosed, in RTL’s financial statements and reports, and to the market in that regard. The matters raised for judgment are clearly complex. As Senior Counsel for Mr Albanese put it, the case is “not a quotidian investigation of possible commercial deficiencies”. Mr Albanese has mining engineering qualifications and has worked in the mining industry for decades, including as the Chief Executive Officer of RTL, a major global mining company. I accept that, with his expertise, his engagement with the evidence as it unfolds, and his immediate availability to assist his legal representatives as and when required, will be of real benefit to the efficient conduct of his defence, and thus the hearing. The same applies to Mr Elliott, with no less cogency. I have already referred to aspects of his corporate career. I accept that his expertise, background and training will likely enable him to give material assistance during, for example, the course of the cross-examination of the experts to be called on financial matters as well as on the materiality of disclosures which were made and which, ASIC says, should have been made but were not made.

54    I do not leave out of consideration the fact that the evidence to be met by Mr Albanese and Mr Elliott includes statements attributed to them by lay witnesses that are not recorded in documents. I am informed that these statements will be tested in cross-examination, heightening the prospect that timely instructions from Mr Albanese and Mr Elliott might be required as the cross-examinations proceed.

55    Having noted these matters, I accept that it might be possible for “workarounds” to be implemented where Mr Albanese and Mr Elliott “catch up” on the hearing as it proceeds by reading the daily transcript or, perhaps, viewing a recording of the day’s hearing, if one can be made available, during their normal waking and working hours, and then communicating their instructions to their legal representatives in Sydney. But I do not think that this is the preferable way to proceed. It is cumbersome and inefficient compared to real-time participation. It lacks the obvious immediacy and benefits of real-time participation in person. It could lead to multiple adjournments being sought by the individual defendants during the course of the hearing, and prolong it. It could lead to dislocation of the course of the evidence and visit inconvenience upon the witnesses. It could also work to the disadvantage of cross-examining counsel who has to re-visit topics which have already been tested by cross-examination.

56    ASIC has referred to such problems as more theoretical than practical. Senior Counsel for ASIC informed the Court that in its proceedings in GetSwift (see [44] above) no significant problems were encountered in the conduct of the hearing, even though two individual defendants were present in New York while the hearing proceeded in Sydney. If in the present case there was no practical option other than proceeding to hear the case with Mr Albanese present in New Jersey and Mr Elliott present in London, then this example might provide some comfort in proceeding as ASIC urges the Court to do. However, we do not know what difficulties might arise in the particular circumstances of the present case and the reality is that proceeding in the way that ASIC contemplates is not the only practical case management option available to the Court.

57    Thirdly, the physical and mental demands placed on Mr Albanese and Mr Elliott would likely be exacerbated by the need to confer with their respective legal representatives at the end of each hearing day. This could be ameliorated by holding early morning conferences (Sydney time) the following day, but this may impede the timely giving and receipt of instructions and may impose its own burdens on counsel and solicitors in preparing for the case that day, when other matters may be pressing on their minds.

58    Fourthly, Mr Albanese’s and Mr Elliott’s close engagement with the hearing as it unfolds will be important in arriving at a decision whether either or both of them will give evidence. Each may elect not to give evidence. But should either or both of them elect to give evidence, then a question will arise as to how the giving of that evidence is best managed. Clearly, it would be inappropriate to require that they give evidence, and be cross-examined on that evidence, in the middle of the night (their time). Moreover, each should be afforded the benefit of hearing the evidence of the other in real-time. ASIC argues that these difficulties can be overcome with the expedient of the Court altering its sitting hours. This, of course, can be done within reason. Once again, there are limits. Endeavouring to solve one time problem may only work to create another one. ASIC argues that Mr Albanese can be accommodated by the Court sitting early. This would be of some benefit to Mr Albanese, although not a complete answer. It would be of no real benefit to Mr Elliott. ASIC argues that Mr Elliott can be accommodated by the Court sitting late. This would be of some benefit to Mr Elliott, although not a complete answer. It would be of no real benefit to Mr Albanese.

59    Fifthly, it bears repeating that the allegations against Mr Albanese and Mr Elliott are very serious, with potentially very serious consequences for them should liability be established. The case is undoubtedly complex. Their need for as much real-time personal engagement as is possible with their legal advisers is warranted and should be given significant weight.

60    I should record that, in its submissions, ASIC properly raised for consideration the impact that vacation of a seven-week hearing might have on the orderly disposition of the Court’s other case load. As matters presently stand, there are cases in my docket that are ready for hearing which can, conveniently, be listed for hearing in the March/April 2021 period.

Conclusion

61    For these reasons, it seems to me that the better case management option is to vacate the present hearing dates and to re-list the matter for hearing in March/April 2022. On the evidence before me, I have a relatively high degree of confidence, although I cannot be certain, that, in doing so, effective vaccination will be available to both Mr Albanese and Mr Elliott in the intervening period, enabling them to travel safely to Australia. I expect (although, once again, I cannot be certain) that, by that time, inwards travel restrictions to Australia for those who are vaccinated will be lessened, if not removed, thereby permitting Mr Albanese and Mr Elliott to enter and remain in Australia for the duration of the hearing on liability.

62    The adjournment I am prepared to grant is a lengthy one. I wish to make it clear that in reaching my decision, I am not re-listing the hearing to March/April 2022 as merely a desired target date. I expect the hearing to proceed and conclude in that period. If it cannot proceed at that time with Mr Albanese and/or Mr Elliott personally present in Sydney, the benefit of experience will point firmly to the hearing then taking place in the manner that ASIC now contemplates it should be conducted. There cannot be progressive and indefinite delay.

Associate:

Dated:    27 November 2020