Federal Court of Australia

Australian Securities and Investments Commission v Wilson (No 2) [2021] FCA 808

File number:

WAD 259 of 2018

Judgment of:

JACKSON J

Date of judgment:

16 July 2021

Catchwords:

PRACTICE AND PROCEDURE - interlocutory application for witness to give evidence by video link - witness resides in United States of America - to give evidence in person witness would have to undertake 14 days' mandatory hotel quarantine as a result of COVID-19 pandemic - witness unwilling to do so - credit likely to be in issue - significant delay likely if trial adjourned - possible prejudice to plaintiff if trial does not proceed - leave granted for witness to give evidence by video link

Legislation:

Federal Court of Australia Act 1976 (Cth) s 47A

Emergency Management Act 2005 (WA) ss 3, 56, 61

Controlled Border for Western Australia Directions paras 7, 8, 15, 17, 31, 40, Schedule 2, Schedule 4 paras 4, 7, 10, 13, 14

Cases cited:

Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd [2020] FCA 1153; (2020) 147 ACSR 521

Australian Competition and Consumer Commission v FFE Building Services Ltd [2003] FCAFC 132; (2003) 130 FCR 37

Australian Securities and Investments Commission v Wilson [2020] FCA 873; (2020) 146 ACSR 149

Long Forest Estate Pty Ltd v Singh [2020] VSC 604

Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129

Roberts-Smith v Fairfax Media Publications Pty Limited (No 4) [2020] FCA 614; (2020) 277 FCR 337

Roberts-Smith v Fairfax Media Publications Pty Limited (No 10) [2021] FCA 317; (2021) 151 ACSR 79

Sanson v Sanson [2021] NSWSC 417

Universal Music Publishing Pty Ltd v Palmer [2020] FCA 1472

Division:

General Division

Registry:

Western Australia

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Number of paragraphs:

46

Date of hearing:

24 June 2021

Counsel for the Plaintiff:

Mr MD Howard SC with Mr S Wong

Solicitor for the Plaintiff:

Australian Securities and Investments Commission

Counsel for the Defendant:

Mr GR Donaldson SC with Mr T Russell

Solicitor for the Defendant:

Mizen + Mizen

ORDERS

WAD 259 of 2018

BETWEEN:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Plaintiff

AND:

FRANK CULLITY WILSON

Defendant

order made by:

JACKSON J

DATE OF ORDER:

16 July 2021

THE COURT ORDERS THAT:

1.    Pursuant to s 47A of the Federal Court of Australia Act 1976 (Cth), the testimony of Paul Charles Castella may be given by video link.

2.    The costs of and incidental to the plaintiff's interlocutory application dated 3 June 2020 as incurred by the parties since 23 June 2020 are costs in the cause.

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

REASONS FOR JUDGMENT

JACKSON J:

1    In Australian Securities and Investments Commission v Wilson [2020] FCA 873; (2020) 146 ACSR 149 (ASIC v Wilson (No 1)), I dismissed an interlocutory application by the plaintiff (ASIC) for directions permitting the evidence of various witnesses to be adduced by video link. I gave express liberty to apply without a further formal application. ASIC now exercises that liberty, to seek a direction that a particular witness, Dr Paul Castella, may give his evidence by video link, pursuant to s 47A of the Federal Court of Australia 1976 (Cth). The defendant, Mr Wilson, opposes the application.

2    The relevant characteristics of the proceeding and its background are set out in ASIC v Wilson (No 1). To summarise:

(1)    ASIC seeks civil penalty and disqualification orders against Mr Wilson on the basis of allegations about his conduct concerning the termination of a material agreement between subsidiaries of Quintis Ltd, of which Mr Wilson was managing director, and Galderma SA, a subsidiary of Nestlé.

(2)    At the material times, Dr Castella was the Chief Executive Officer of one of those Quintis subsidiaries. His evidence about alleged communications between him and Mr Wilson concerning the termination of the Galderma agreement will be central to ASIC's claim. His credibility as a witness will be in issue.

(3)    Dr Castella lives in the state of Texas, in the United States of America. The COVID-19 pandemic gives rise to difficulties with any proposal that he travel to Australia to give his evidence in person. Given the importance of that evidence, if he is not able to come here, and the evidence is not adduced by video link, the trial will not proceed.

(4)    I found that there was a real risk that Mr Wilson will not have a fair and proper opportunity to test the evidence of Dr Castella if that evidence is not given in person. (ASIC contests that conclusion in the present renewed application.) The risk arose from the particular nature of his likely evidence, which centres on alleged conversations with Mr Wilson which were not recorded in writing, and difficulties concerning cross-examining him for extended periods in view of the time difference between Perth and Texas.

(5)    It is also relevant, however, that injustice to ASIC may arise if the trial is postponed for an unknown period of time. Given the nature of the proceeding, there are considerations of the public interest involved which extend beyond the particular interests of the parties. There is also the importance to the administration of justice of continuing with the work of the court during the pandemic.

3    It is worth setting out the basis on which I ultimately decided the application in ASIC v Wilson (No 1) in view of those strong competing considerations. At [38], referring to the risk of practical injustice to Mr Wilson, I said:

The choice between taking that risk and postponing the trial for an indefinite period is an invidious one. But in view of the particular characteristics of Dr Castella's possible evidence to which I have referred, I consider that on what is known at present, the risk of injustice to Mr Wilson outweighs the risk of injustice to ASIC and any resulting harm to the public interest. It is simply not clear how long the trial will be delayed. I[t] may be a matter of months, it may be longer. It is relevant that no listing for trial has occurred, so there is no need to vacate particular dates with the inconvenience and wasted costs that would inevitably follow. It is also relevant that while ASIC has, rightly, placed emphasis on the public interest in proceeding to trial quickly, it has not pointed to any particular prejudice that it will suffer as a litigant or that will be suffered by any other person. There was no suggestion, for example, that Dr Castella's apparent willingness to give evidence was subject to a requirement that it be by video, or that it take place before any particular time, or that he would not be compellable as a witness if he did not consent to give evidence in a particular way.

4    It is also worth setting out the basis on which express liberty to apply was given, at [40]:

However, as Mr Wilson's counsel accepted, circumstances may change. As time progresses, the likely time frame of the impact of the pandemic on travel arrangements will become clearer. In my view it is appropriate to adjourn the case management hearing for a period of approximately two months so that the position may be reassessed at that time. For that reason, the application will be dismissed with general liberty to apply, so that when it becomes appropriate to reconsider the issue, that can be done without the need for a fresh application.

The evidence on the current application

5    Against that background, I will now describe the evidence of the parties on the current application. ASIC relies on an affidavit of one of its employed solicitors, Andrew Smith, affirmed on 3 June 2021. The affidavit annexes a large volume of publicly available information about the pandemic and the way in which the Commonwealth and State and Territory governments are dealing with it. It is notorious that the situation has continued to develop since the date of the affidavit, but neither party adduced evidence of subsequent developments or invited me to take judicial notice of them. The salient points that emerge from Mr Smith's affidavit, as at 3 June 2021, are as follows:

(1)    Directions in force in Western Australia require persons who arrive from overseas countries (other than New Zealand) to undertake 14 days' hotel quarantine. While the directions contemplate different arrangements for some categories of arrival, Dr Castella would not be in any of those categories. There are similar directions in place in the other States and Territories.

(2)    Persons staying in hotel quarantine are exposed to a risk that they will contract COVID-19 while in quarantine. There are several instances where that appears to have happened in Australia.

(3)    There is a cap on international arrivals into Western Australia of 512 persons per week. Priority is given to Australian citizens seeking to return home.

(4)    Papers prepared for the Commonwealth budget for 2021-2022 indicate that the Commonwealth government expects the international border will remain closed, with quarantine requirements in place, until mid-2022. International tourism is not expected to pick up until the second half of 2022.

(5)    The Commonwealth government is in the course of implementing a program for the vaccination of the Australian population. As at the date of Mr Smith's affidavit, approximately 4.5 million doses had been administered nationally, of which approximately 175,000 were administered in Western Australia. There was, as at the date of that affidavit, no timetable in place for the completion of the vaccine rollout.

(6)    The affidavit contains evidence as to a need to 'reset' the vaccination program as a result of medical advice received in late April to the effect that the AstraZeneca vaccine should only be used in people 50 years of age and older.

6    ASIC also relies on an affidavit which Dr Castella affirmed on 28 May 2021. Its text is as follows (omitting only the introductory paragraph):

2.    I am willing to give evidence as a witness in these proceedings, either in person (subject to the limitations outlined below) or via video link.

3.    In principle, I am willing to attend a trial in Perth, Western Australia to give evidence in person and am also willing for ASIC to pursue the necessary arrangements on my behalf that would allow me to travel to Australia.

4.    However, I have been informed by the representatives of ASIC that foreign travellers to Western Australia are required to quarantine in a hotel for 14 days before entering the community. I am not willing to enter into hotel quarantine in Australia for a period of 14 days.

5.    The cumulative time period I would be absent from home in a situation where I would have to quarantine for a minimum for 14 days, in addition to the travel time from Texas to Perth and back (which is in excess of 48 hours in total), and the time necessary to attend Court to give evidence, would be more time than I am prepared to give in light of my personal and business affairs.

6.    Travelling to Perth during August and September 2021, will be inconvenient for me for the following reasons:

(a)    I will be travelling to the state of Maine, USA, during August to take my son to college;

(b)    My wife and I run a bed and breakfast business. August is a popular time for bookings, particularly on weekends. I would not be able to be away from the business for more than one weekend without the business suffering as a consequence. The business has to be closed during any period I am travelling away from home as both I and my wife need to be there to run it.

(c)    I am expecting to start a new job in June 2021. My ability to take leave in August and September 2021 would be subject to my ability to obtain leave for the duration of my absence to travel to Australia. I do not know if I will be able to take an extended period of leave, given that I would have only recently started in my new position.

7.    As an alternative to travelling to Perth to give evidence in person while quarantine requirements are in place, I am willing to give evidence in these proceedings via video link.

8.    I am willing to accommodate the giving of evidence via video link at such times as are arranged by the Court. In my previous role as Chief Executive Officer of Santalis Pharmaceuticals Inc., I had regular business communications with Australian colleagues in Perth, and I am familiar with the time difference between Texas and Perth. Based on that experience, I am prepared to be available to give evidence at times that correspond with usual Australian business hours in Perth. I am also willing to give evidence over a number of days.

9.    I have the necessary facilities to give evidence via video link at my home. I have access to high speed internet, and the necessary audio and visual capabilities that would allow me to see and hear what is being transmitted from the court room in Australia. My use of those facilities would be private and without interruption.

7    Mr Wilson did not seek to challenge this evidence, although he did take issue with its asserted significance to the present issue. The key point of contention concerned Dr Castella's unwillingness to travel to Australia if 14 days' hotel quarantine is required. ASIC relied on evidence of persons contracting the coronavirus during hotel quarantine in Australia but Dr Castella does not himself express any concern about that, so I put no weight on it. Nevertheless, there is no reason to doubt that Dr Castella's unwillingness is real for the reasons that he has given, and Mr Wilson did not suggest that it would be possible to compel Dr Castella to give evidence, unless he was already in Australia.

8    As a result, I will proceed on the basis that if Dr Castella is required to undergo hotel quarantine for 14 days, he will not be willing to come to Perth to give his evidence in person. Mr Wilson submitted that the uncertainty as to when an in person trial could occur arises solely from that unwillingness, and any prejudice or injustice to ASIC needs to be assessed in light of that. But Dr Castella is independent of ASIC so his unwillingness is not a matter ASIC can control. The main issue at the hearing was whether the basis of his unwillingness - the premise that he will be required to undertake 14 days' hotel quarantine - is correct.

The Western Australian border directions

9    Mr Wilson's primary submission is that Dr Castella will not have to undergo 14 days' quarantine, or at least that ASIC had not demonstrated that he will. Mr Wilson relied principally on the terms of the Controlled Border for Western Australia Directions which were made under 56 of the Emergency Management Act 2005 (WA) and came into effect on 14 November 2020. The starting point of the Directions in relation to international arrivals is that if they enter Western Australia they must comply with defined 'centre quarantine requirements': para 7. Those requirements essentially involve 14 days' hotel quarantine: para 17 and Schedule 2.

10    There are, however, three ways in which, under the Directions, it is contemplated that the centre quarantine requirements may be alleviated, in part. The first is that an 'authorised officer' may direct otherwise: para 7(a). An authorised officer is defined in para 15 of the Directions as having the same meaning that it has in the Emergency Management Act. In turn, s 3 of the Emergency Management Act defines an authorised officer as the State Emergency Coordinator and any person authorised by the State Emergency Coordinator under s 61 to act as an authorised officer. The Western Australian Commissioner of Police was the State Emergency Coordinator at the time the Directions were issued, and was therefore an authorised officer. The Directions provide no guidance on the circumstances in which he or any other authorised officer might vary the centre quarantine requirements and nor did the evidence.

11    Mr Wilson said I should infer that ASIC has not asked the Commissioner (or any other authorised officer) to make any direction lifting or varying the hotel quarantine requirement, as there was no evidence that it had made such a request. But even if I make that inference, the possibility that an authorised officer would vary the requirements in this case in a way which would make Dr Castella willing to come here to give evidence is speculative.

12    At various points in submissions Mr Wilson emphasised, in effect, that the onus of proof in the application was on ASIC. It is true, as I said in ASIC v Wilson (No 1) (at [6]), that reason for the exercise of the discretion must be made out by the party seeking a favourable exercise of it. But I do not consider that this places an onus on ASIC to negative every possibility which might undermine the basis on which it seeks the exercise of the discretion here. In the end, the court must make an assessment of what is in the best interests of justice in all the circumstances of the case, based on all the evidence adduced.

13    Here, the content of the Directions and of Mr Smith's affidavit of 3 June 2021, establish that the likely starting point of any arrangements for Dr Castella to travel to Western Australia would be 14 days' hotel quarantine. The extent to which exceptions to that may be available must be weighed on all the evidence in the usual way. In the circumstances of the pandemic as set out in Mr Smith's affidavit, I do not consider that the power of an authorised officer to alleviate the requirements of the Directions in unspecified circumstances provides any basis to depart from that starting point, and in the end Mr Wilson did not place much weight on it in his submissions.

14    The second possible exception to the hotel quarantine requirements which is found in the Directions arises if the international arrival is subject to a 'specified arrangement': para 7(b). This is defined in para 40 to mean a number of specified directions, apparently also made under the Emergency Management Act. The specified directions were not before the court but their titles as set out in the Directions include 'the Chevron FIFO Worker Directions (No 2)' (para 40(a)), 'the Flight Crew Directions' (para 40(b)) and the 'Yongah Hill Immigration Detainees Directions' (para 40(h)). It can be inferred from these titles that the specific directions relate to classes of persons who are frequently required to enter Western Australia and for whom the Western Australian authorities deem it appropriate to make special arrangements, for example airline flight crew.

15    Mr Wilson submitted that if an organisation such as Chevron could reach such arrangements with the Western Australian government, then there is no reason why an organisation such as ASIC could not do so as well. But on the face of things, the arrangements for organisations such as Chevron and airlines are embodied in directions of general application which would not be apt vehicles to facilitate a one-off visit by a single person for the discharge of a specific purpose. I put no weight on this second exception and, once again, Mr Wilson put little weight on it in his submissions.

16    Senior counsel for Mr Wilson spent more time on the third possible exception. It arises under para 8 of the Directions, which states that 'A person who receives a modified quarantine direction must comply with that direction'. Paragraph 31 defines a modified quarantine direction as follows:

Modified quarantine direction means:

(a)    the directions set out in Schedule 4 to these directions if a person entered Western Australia to:

(i)    provide care to a dependent person who resides in Western Australia; or

(ii)    receive care from a person who resides in Western Australia; or

(iii)    attend a funeral service; or

(iv)    visit a relative who has had a serious medical episode or whose death is imminent; or

(v)    receive urgent and essential medical treatment; or

(vi)    comply with an order of an Australian court; or

(b)    a direction entitled 'Modified Quarantine Direction' that requires quarantine but on terms different to the self-quarantine requirements and which is sent to the person via the G2G Pass Platform or to the email address they nominated through the G2G Pass Platform.

The G2G Pass Platform is a platform for the Western Australian government to grant passes permitting entry to Western Australia. Mr Wilson pointed out once again that ASIC had not sought any modified direction under para (b) of the definition, but he accepted that in the ordinary course a modified quarantine direction would be made under para (a), and so be in the terms of Schedule 4.

17    Schedule 4, again, essentially provides for 14 days' quarantine. It is not necessarily hotel quarantine, but it can be inferred that Dr Castella would need to stay in a hotel if he were to travel to Western Australia anyway, so that point is not material. What is potentially material is that Schedule 4 also contemplates that the person who has received the modified quarantine direction ('you') may leave the quarantine location ('suitable premises') if 'you are given another direction which you are required by law to obey' (Schedule 4 para 4(a)), or (Schedule 4 para 4(c)) (bold and italics in original):

you leave the suitable premises for the purpose of travelling to a particular place in accordance with paragraph 7 in order to either:

(i)    provide care to a dependent person who resides in Western Australia; or

(ii)    receive care from a person who resides in Western Australia; or

(iii)    attend a funeral service; or

(iv)    visit a relative who has had a serious medical episode or whose death is imminent; or

(v)    receive urgent and essential medical treatment; or

(vi)    comply with an order of an Australian court,

as nominated in your G2G Pass Declaration or updated G2G Pass Declaration (whichever is applicable) or otherwise indicated to an authorised officer (relevant purpose), in accordance with paragraph 5 of the Controlled Border for Western Australia Directions

18    Paragraph 7 of Schedule 4, with which Dr Castella's travel within Western Australia would need to comply, provides (bold and italics in original):

You may leave your suitable premises to travel to the particular place or places for the relevant purpose, provided that:

(a)    unless you are attending a private residence, you seek approval in advance from a person in authority at the particular place and notify them that you are subject to a self-quarantine direction and comply with any requirements of that place; and

(b)    you travel in a private vehicle to the particular place or places by the most direct and practicable route available and without stopping, except as required by law or necessary for fuel; and

(c)    while you are at the particular place or places, you remain there, and only for so long as is reasonably necessary for the relevant purpose; and

(d)    if you are required to travel from one particular place to another particular place for the relevant purpose while you are not at your suitable premises, you comply with the terms in subparagraph (a) to (c); and

(e)    following your attendance at the particular place or places, you travel in a private vehicle to the suitable premises by the most direct and practicable route available and without stopping, except as required by law or necessary for fuel; and

(f)    you comply with paragraph 10.

Note:    You must not visit cafes, restaurants, shopping centres, public parks, or any other place while you are not at your suitable premises if it is not essential or reasonably necessary to carry out the relevant purpose.

In the case of compliance with an order of a court, a 'person in authority' is a court officer at the relevant court: Schedule 4 para 13(e). A 'private vehicle' in Dr Castella's case would be a vehicle of which he is the sole occupant, other than a driver: Schedule 4 para 14.

19    Paragraph 10 of Schedule 4 relevantly provides:

At all times while you are in Western Australia, you must:

(a)    take all reasonable steps to keep at least 1.5 metres away from any other person; and

(c)    wear a face mask, if practicable and available, when you are travelling or in an enclosed space outside of your suitable premises; and

(d)    when coughing or sneezing, do so into your elbow or a tissue; and

(e)    wash your hands often with soap and water or using alcohol hand rub, particularly before and after attending a bathroom.

20    Mr Wilson's submission based on these provisions was that it would be open to ASIC to apply to the court for the issue of a subpoena or other order requiring Dr Castella to attend the court to give evidence in person. If an order of that kind was made, it could be served on Dr Castella on his arrival in Australia. He would then be required to attend at this court in Perth and so, it was said, para 31(a)(vi) of the Directions and para 4(c)(vi) of Schedule 4 would be engaged. Dr Castella would be required to go directly from the airport to hotel quarantine but he then could travel from hotel quarantine to the court, without waiting 14 days, in order to give evidence. He would need to comply with the requirements in paras 7 and 10 of Schedule 4. Most of those requirements, including the requirement for 1.5 metre distancing, would pose no impediment to his giving evidence. As for the requirement that Dr Castella wear a face mask, Mr Wilson submitted that this could be satisfied by means of a clear plastic face shield which would mean that his face would be visible.

21    Having considered those submissions I consider that, as a matter of practical reality, it is unlikely that Dr Castella would be able to give evidence in person in this court in Western Australia without first having to undergo 14 days' quarantine.

22    In the first place, I doubt that the modified quarantine direction provisions would apply under para 31(a) of the Directions. Paragraph 31(a)(vi) provides that the directions in Schedule 4 apply 'if a person entered Western Australia to … comply with an order of an Australian court'. The ordinary meaning of those words is that the need to comply with the order is the reason that the person wishes to enter Western Australia. So the person must first be subject to the mandatory requirements of the order, and must enter Western Australia so that he or she can comply with those requirements. That is different to the scenario posed by Mr Wilson, in which Dr Castella would enter Western Australia for the purpose of becoming bound by an order so that, after entering the State, he can have the benefit of the modified quarantine requirements.

23    The other situations in para 31(a) which trigger Schedule 4 support the view that this scenario is not the situation contemplated by the Directions. They are all circumstances in which there is a pre-existing and compelling need for a person outside Western Australia to enter the State; for example, to receive urgent and essential medical treatment. In my view the Directions are not intended to accommodate a situation in which the person outside the state does not have such a need, but chooses to enter it in order to then become subject to a mandatory requirement.

24    Also, it would not be satisfactory for Dr Castella to give his evidence from behind some sort of clear plastic face shield. It is unlikely his face would be clearly visible all of the time, because of reflections of light. In that respect, visibility of his facial expressions over a video link would clearly be preferable. It is doubtful in any event that a shield of that kind is what is meant by 'face mask' in para 10(c) of Schedule 4, and in the absence of evidence that such a shield would provide effective protection against infection, it could not be taken to be a proper substitute for a cloth or other surgical face mask that covers the mouth and nose.

25    Speaking of an absence of evidence brings one back to the onus of proof again, but it also takes the analysis to a broader point of general importance. The Chief Justice of this court has published two relevant special measures information notes in response to COVID-19, SMIN-1 and SMIN-4. Each of them emphasises that the court's priority is the health and safety of the community and, in particular, parties, practitioners, judges and staff and the families of all these groups: see SMIN-1 paras 1.2, 2.1, 7.1 and SMIN-4 paras 1.2 and 2.1. It follows from that, and from basic prudence and common sense, that the person in charge of the courtroom arrangements - the judge - should proceed in a precautionary way which does not expose the community, and in particular parties, counsel and court staff to any real risk of infection.

26    Those important requirements in the administration of the court intersect with the requirements of the administration of justice. Regardless of where the onus of proof sits in respect of the latter requirements, the precautionary approach demanded by the situation means that I will not approve arrangements which expose individuals to a risk of infection unless I am satisfied, by medical advice if necessary, that the risk is negligible. So, for example, while it emerged at the hearing to be common ground that Dr Castella has received both doses of a COVID-19 vaccine, there was no evidence of the extent to which this would reduce the risk that he might carry or transmit the virus.

27    In so far as Mr Wilson points to ASIC's apparent omission to seek some more specific modifications to the 14 day quarantine requirement under para 31(b) of the Directions, the requirements of Schedule 4 paras 7 and 10 may be taken to indicate the measures which those responsible for public health in Western Australia consider are necessary when a person is required by an order of a court to attend a court. I do not consider it necessary for ASIC to produce evidence that it has tried and failed to obtain a more specific exemption that would be acceptable to Dr Castella. Mr Wilson drew a contrast between ASIC's efforts and the efforts of the respondents in Roberts-Smith v Fairfax Media Publications Pty Limited (No 10) [2021] FCA 317; (2021) 151 ACSR 79 (Roberts-Smith (No 10)) to bring Afghan witnesses to Australia, which were significant to Besanko J's decision to permit those witnesses to give evidence by video link: see [60]. But even there, those efforts had not run to their conclusion, and either borne fruit or failed. In particular, visa applications had not yet been made. Besanko J nevertheless proceeded on the basis that the efforts were likely to fail, including on the basis of the advice of a solicitor and migration agent that 'the prospects of success are low', but 'the visa application criteria and the travel ban exemption request are discretionary - we won't know whether the applicants will be successful unless they give the process a try': see Roberts-Smith (No 10) at [15], [16], [60].

28    In my view, the evidence as a whole establishes that it is highly unlikely that Dr Castella could give evidence in person in Western Australia without first undergoing 14 days' quarantine. I will therefore proceed to determine the application on the basis that Dr Castella will be unwilling to give evidence in person in Western Australia and, as I have said, there was no suggestion that while he is outside Australia he can be compelled to do so. That means that until the circumstances of the pandemic change significantly, Dr Castella will not give evidence unless it is by video link.

29    In the course of the application as resolved in ASIC v Wilson (No 1), Mr Wilson raised certain constitutional issues. But he did not press them in relation to the renewed application, as ASIC no longer contends that it is practically impossible for Dr Castella to attend. As the above discussion reveals, the problem is not that the Directions preclude Dr Castella from giving evidence; the problem is that the 14 day quarantine that would be required makes him unwilling to give evidence in person, and he is not otherwise compellable. It is not necessary to resolve any constitutional issues.

Exercising the discretion in the present circumstances

30    In ASIC v Wilson (No 1) I held that, on balance, the interests of justice as at June 2020 dictated that leave to adduce Dr Castella's evidence by video should not be granted. It is convenient to consider this renewed application in terms of what has changed in the year since then.

31    One change specific to the case is that since then, the parties have agreed that Dr Castella will give his evidence in chief as to the key alleged telephone conversations and board meetings from late 2016 to 2017 orally, rather than by affidavit. Senior counsel for Mr Wilson drew attention to an outline of Dr Castella's evidence which ASIC provided in October 2020, which concerns the board meetings. Senior counsel criticised the sufficiency of the description of the evidence that has been given. I do not need to make a determination now as to whether that criticism is well founded; I accept that the fact that the key evidence will be adduced viva voce adds to the importance of giving Mr Wilson a proper opportunity to conduct an effective cross-examination of Dr Castella. But I do not think that it adds to it significantly. The need for an effective cross-examination was and remains centrally important and I give it great weight in the exercise of the discretion.

32    Mr Wilson submitted that this case has many of the hallmarks of a criminal case. It could be pointed out that important evidence in criminal cases is frequently given by video link but, as I said in ASIC v Wilson (No 1), I do not derive much assistance from analogies with cases that engage legislative provisions and policy considerations of a different kind to those that apply in the present case. The gravity of the allegations against Mr Wilson and the possible consequences for him were, and remain, important factors in exercising the discretion. But it is a civil penalty proceeding, not a criminal one, and the discretion must be exercised by reference to the particular legislative and procedural framework that applies here.

33    One specific concern about cross-examination by video link which Mr Wilson raised was the asserted difficulty of putting documents to Dr Castella without giving him advance warning of what those documents are. This was put in the context where, as the defendant to a civil penalty proceeding under the Corporations Act 2001 (Cth), Mr Wilson may refuse a request for discovery to ASIC on the basis of 'penalty privilege': see Australian Competition and Consumer Commission v FFE Building Services Ltd [2003] FCAFC 132; (2003) 130 FCR 37 at [12]-[14], [25] (Emmett, Hely and Jacobson JJ); Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129 at [39] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ). But I do not consider that this is a real problem. Counsel for both parties made it clear at the hearing that if leave is given to adduce Dr Castella's evidence by video, the parties would confer as to suitable arrangements which are likely to involve an independent law firm or other professional service provider to facilitate the audio-visual link and the requirements as to documents. That independent party could facilitate the putting of documents to Dr Castella during cross-examination without advance notice to him or to ASIC. Similarly, while Mr Wilson suggested that it could cause difficulties if Dr Castella was looking off camera during his evidence, that kind of problem can be avoided by suitable directions about who and what can be in the room with the witness, overseen, if necessary, by the independent service provider.

34    A broader difference between the situation now and the situation 12 months ago is that, then, the pandemic was still quite new, and the court was working out the ways in which it could use technology to adapt to that new situation. Now, the court's experience in facilitating and observing cross-examination of important witnesses by video link is more widespread than it was then, and it has generally been viewed favourably in this court and others: see e.g. Universal Music Publishing Pty Ltd v Palmer [2020] FCA 1472 at [32]; Long Forest Estate Pty Ltd v Singh [2020] VSC 604 at [23]; Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd [2020] FCA 1153; (2020) 147 ACSR 521 at [49]-[50]; Sanson v Sanson [2021] NSWSC 417 at [31]. I remain of the view that the risk of some injustice to Mr Wilson is real and not far-fetched or fanciful; if it were otherwise, that would be the end of the present issue. But in a general sense, the court's further experience and confidence in cross-examination by video link lessens my concern about that risk.

35    I have mentioned that in its renewed application ASIC challenged the conclusion in ASIC v Wilson (No 1) that there was a real risk of injustice to Mr Wilson if Dr Castella could not be cross-examined in person. ASIC did not, however, point to any particular error in the analysis on which that conclusion was based; instead, its submission was founded on Stewart J's decision in Auken. But I do not consider that the approach which his Honour took shows that there is no real risk of injustice here; Auken was a different case, involving a commercial dispute in which the lessee of a farm in New South Wales sought orders for the lease to be void or varied, and compensation for alleged misleading conduct or fraud. The consequences for Mr Wilson as an individual if it is found that he breached civil penalty provisions and is liable for penalties or susceptible to disqualification are very different to the possible consequences for the respondents in the commercial dispute that is the subject of Auken. Nevertheless, as I have said, I do accept that Auken and the other cases I have cited above and the general experience of the courts over the course of the pandemic lessen the concerns about cross-examination by video link.

36    ASIC also relied on Roberts-Smith (No 10) where, despite having earlier ordered an in person trial (Roberts-Smith v Fairfax Media Publications Pty Limited (No 4) [2020] FCA 614; (2020) 277 FCR 337), Besanko J gave leave for the evidence of the Afghan witnesses to be adduced by video link. While that is a defamation matter concerning circumstances very different to the present case, it can be accepted that it involves allegations that are extremely grave, including claims made by the respondents in their defences that the applicant committed murder. Besanko J gave leave despite his concerns about the cross-examination. At [57] his Honour said:

In my opinion, there is the potential for the applicant to be disadvantaged in his cross-examination of the Afghan witnesses if they are permitted to give evidence by AVL and of the Court not being in as good a position to assess their evidence as it would be if they were to give evidence in person in the courtroom. As against that, I take into account the following matters: (1) as the respondents point out, if it is apparent that evidence should be given little weight because of the medium through which it is given, then it is open to the Court to proceed in that way; (2) if the Afghan witnesses do not give evidence by AVL, they will not, as things presently stand, give evidence at all; (3) the respondents can be ordered to file affidavits or signed statements of their evidence-in-chief; (4) an interpreter can be available in the courtroom in Sydney as well as in Afghanistan; and (5) if at or about the time the evidence is to be given or is given, circumstances not presently foreseeable mean that there is the potential for real injustice, then an application to revoke the order may be made. Another possibility, and I put it no higher than that because it was not debated before me, is that particular evidence might be excluded under provisions in the Evidence Act. In my opinion, the potential disadvantages in the Afghan witnesses giving evidence by AVL are unlikely to arise, or can be eliminated, having regard to the matters I have identified.

37    Not all of the matters in his Honour's numbered list apply here, but the first and fifth items are relevant. Any actual injustice, as well as the weight to be given to the evidence adduced from Dr Castella, can be addressed after that evidence is given, where it can be considered on the basis of observation, rather than prospective risk assessment. ASIC did not point to these matters in June of last year, but it does now.

38    Another important matter which has changed since June 2020 concerns delay. There is now more certainty about the extent of likely delay, and therefore the likely risk of injustice to ASIC and the public interest it represents, should leave to adduce Dr Castella's evidence continue to be refused. As the passages from ASIC v Wilson (No 1) quoted above show, it was significant to the decision that it was unclear how long the trial would be delayed and that with the passage of time, the likely duration of the impact of the pandemic on travel arrangements would become clearer. In June 2020 there was, for example, no certainty about whether effective vaccines would be developed or when that would occur. It was also relevant that no listing for trial had taken place and that ASIC had not pointed to any particular prejudice it would suffer if the trial was delayed.

39    The 'calculus', as senior counsel for ASIC called it, has changed since then, in relation to all those things. While it is still not possible to say when quarantine-free international travel into Australia will happen, it can now be said that such travel is unlikely before the second half of 2022. That is on the basis of the evidence from Mr Smith's affidavit that I have summarised above, in particular the forecasts in the Commonwealth budget papers and the evidence about Australia's vaccination program.

40    That additional level of certainty about quarantine converges with the likely delay to the trial that will occur if Dr Castella does not give evidence by video link. There was no listing for trial as at June 2020. Since then, the matter has been listed for a four week hearing commencing on 30 August 2021, albeit a provisional listing only. Provisional or not, this means that counsel, the court and, it can be expected, witnesses, have reserved time in their diaries. In the case of counsel and the court, it is a significant block of time which is unlikely to be mutually available again for a considerable period. The court alone would not be able to find that block of time until at least the second half of 2022. The inconvenience and delay that will result from vacating the provisional listing now will be considerable, and that is a new factor weighing in favour of granting leave to adduce Dr Castella's evidence by video.

41    Mr Wilson indicated that he would be happy, if the interlocutory application were dismissed, for the trial to proceed as provisionally listed, with ASIC effectively taking the burden and the risk of bringing Dr Castella to Perth to give his evidence, or not, as the case may be. But in light of all the matters canvassed in the preceding section of this judgment, I do not consider that it would be satisfactory to proceed with a listing for a four week trial which is at risk of collapsing dependent on whether suitable arrangements could be made for the key witness to appear without undergoing 14 days' quarantine, and the large number of contingencies that would surround that even if ASIC were to make prior arrangements under which Dr Castella was willing to come here.

42    Also, ASIC does now point to prejudice if the trial is delayed further. More delay will, it says, increase the likelihood 'from a possibility to a certainty' that Mr Wilson will submit that the court cannot rely on evidence of the oral communications between him and Dr Castella. Whether or not such a submission will ultimately be made, a year has passed since ASIC v Wilson (No 1) and a delay of a further year to a trial in the second half of 2022, or later, may prejudice ASIC by potentially undermining the reliability of Dr Castella's recollection of events that took place in late 2016 and early 2017. That possible prejudice is sharpened by the fact that Dr Castella's evidence in chief about the key events is now going to be adduced orally.

43    Mr Wilson submitted that this delay would simply be a function of COVID-19, and a circumstance facing many courts in this country and others. But the task of this court is to determine whether, in the circumstances of this case, a delay caused by Dr Castella's unwillingness to give evidence in person will be contrary to the interests of justice, weighed against the effect on those interests of hearing his evidence in September, by video link.

44    In the result, I consider that the calculus has changed considerably since this time last year. The court has more experience with taking contentious evidence by video link and more confidence in its efficacy. If taking Dr Castella's evidence that way does turn out to be problematic, submissions as to weight or the exclusion of evidence can be made or, if necessary, an application may be made to revoke leave to adduce the evidence by video link. Importantly, the minimum extent of likely further delay if leave is refused is now clear, and it will be considerable. Another year has passed. Significant further delay may prejudice ASIC in the presentation of its case. Taking all this into account, in my view the balance has tipped and it is in the interests of justice to grant the application for leave to adduce Dr Castella's evidence by video link.

45    A pre-trial case management hearing is listed for 5 August 2021. The parties will no doubt confer about the necessary directions in advance of that hearing, so no order for conferral is necessary. I note Dr Castella's expressed preparedness to give evidence at times that correspond with usual business hours in Perth. Nevertheless, I am willing to change sitting times so as to minimise difficulties caused by differences in time zones, to the extent practicable. The proposed directions may make provision for modified sitting times during Dr Castella's evidence.

46    Both parties accepted that if the result of the interlocutory application was that leave would be granted, costs should be in the cause.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.

Associate:

Dated:    16 July 2021