Federal Court of Australia

ACN 117 641 004 Pty Ltd (in liq) v S&P Global, Inc (No 5) [2025] FCA 687

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 47A(1) of the Federal Court of Australia Act 1976 (Cth) and r 5.04(1), item 27 of the Federal Court Rules 2011 (Cth), Ms Patrice Marie Jordan is allowed to give testimony by audio-visual link at the trial in proceedings NSD 881 of 2020 and proceedings NSD 73 of 2021.

2.    The costs of and incidental to the respondents’ interlocutory application dated 23 May 2025 be reserved.

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

REASONS FOR JUDGMENT

SHARIFF J:

1.    INTRODUCTION

1    These reasons deal with yet another contested interlocutory application in proceedings NSD 881 of 2020 (the Vale Proceedings) and proceedings NSD 73 of 2021 (the Basis Proceedings). Both proceedings are listed for an eight-week trial before me which is due to commence on 7 July 2025. In earlier judgments, I have set out the background to both proceedings: see ACN 117 641 004 Pty Ltd (in liq) v S&P Global, Inc (No 3) [2024] FCA 1238, ACN 117 641 004 Pty Ltd (in liq) v S&P Global, Inc (No 4) [2025] FCA 72 and YAF Master v S&P Global, Inc (Applications for Leave) [2025] FCA 333. I do not repeat that background here. For present purposes, it is sufficient to note that the proceedings involve allegations of fraud and the sums at stake are in the multiples of hundreds of millions of dollars.

2    By an interlocutory application dated 23 May 2025, the respondents in each of the proceedings (S&P) seek an order:

(a)    under s 47A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) that two witnesses, Ms Joanne Rose and Ms Patrice Jordan, give their evidence at trial via audio-visual link (AVL);

(b)    alternatively, under s 46(b) of the FCA Act, s 7(1)(a) of the Foreign Evidence Act 1994 (Cth) and r 29.11(a) of the Federal Court Rules 2011 (Cth) (the FC Rules), that the evidence to be given by those two witnesses be taken on commission in the United States of America, specifically in New York.

3    Ms Rose and Ms Jordan are former employees of S&P who live and reside in New York. The application was initially pressed in circumstances where S&P contended that both Ms Rose and Ms Jordan are critical witnesses to its defence of both proceedings, but were unwilling to travel to Australia to give their evidence in person.

4    S&P’s application was opposed by the applicants in each of the proceedings (being, the Vale Applicants and the Basis Applicants). Although the applicants accepted that the evidence to be given by Ms Rose and Ms Jordan was important to S&P’s defence of the proceedings, the applicants submitted that S&P had not established that Ms Rose and Ms Jordan were unavailable to give their evidence in Australia beyond conclusory assertions to that effect. The applicants further submitted that, despite the advances in technology, they should not be put at the disadvantage of having to cross-examine two important witnesses in the case via AVL, especially when the credit of those two witnesses is in issue, the cross-examination of both witnesses is expected to be document intensive and is estimated to be five days in total.

5    I heard S&P’s application on Monday, 16 June 2025. After hearing the parties’ respective submissions, I indicated to S&P’s Senior Counsel that I was not satisfied that it had adequately addressed a number of evidentiary matters. Instead of dismissing the application, I stood it over so as to enable S&P to address the concerns I had raised.

6    S&P subsequently filed further evidence on Friday, 20 June 2025. That evidence now discloses that Ms Rose is in fact willing to travel to Australia but indicates that Ms Jordan remains unwilling to do so due to concerns about her employment security because of the domestic climate in the United States for Federal government employees (of which she is presently one). The further evidence also addresses the other concerns I had raised.

7    Thus, the remaining dispute between the parties relates to the evidence of Ms Jordan. For the reasons that follow, I am satisfied that an order should be made under s 47A(1) of the FCA Act permitting Ms Jordan to give her evidence at trial via AVL. However, I wish to make clear that I will review whether this order should be revoked if at any time during Ms Jordan’s testimony I form the view that the interests of justice are not being best served by that evidence being given by AVL. In this regard, I will give weight to any prejudice that is occasioned to the cross-examiner of Ms Jordan. I also wish to make clear that I will only alter the Court’s usual sitting hours to accommodate Ms Jordan giving evidence by AVL within reason and in a way which does not inconvenience the staff and officers of the Court and its precinct.

2.    APPLICABLE CONSIDERATIONS

8    Section 47A(1) of the FCA Act provides that the Court may “for the purposes of any proceeding, direct or allow testimony to be given by video link, audio link or other appropriate means”. Section 47C(1) of the FCA Act provides that the Court must not exercise that power unless the court is satisfied of a number of matters including that both the courtroom where the proceedings are being heard, and the location from which a person is to give evidence, are equipped with appropriate facilities for AVL evidence. Subject to these mandatory requirements being met, the Court has a broad discretion to allow AVL evidence.

9    The discretion conferred upon the Court under s 47A(1) is to be exercised judicially and consistently with the overarching dictates of case management as specified in ss 37M and 37N of the FCA Act. The Federal Court’s Technology and the Court Practice Note (GPN-TECH), provides at [1.2] that the Court “embraces the use of technology in proceedings”. And, at [2.5], it emphasises that the use of technology can lead to increased efficiency and cost effectiveness, consistently with the overarching purpose in ss 37M and 37N of the FCA Act.

10    As Flick J stated in Australian Competition and Consumer Commission v Pirovic Enterprises Pty Ltd [2014] FCA 544 at [11]:

The overriding consideration must, however, forever remain what is considered by the Court to be in the best interests in the administration of justice, including the need to ensure that justice is done as between the parties.

11    In Auken Animal Husbandry v 3RD Solution Investment Pty Ltd [2020] FCA 1153; 147 ACSR 521 at [29], relying upon Flick J’s judgment in Pirovic, Stewart J stated that “the exercise of the discretion conferred by s 47A(1) of the Act must unquestionably be guided by the facts and circumstances of the individual case in which permission is sought to adduce evidence by way of AVL”.

12    The exercise of discretion under s 47A(1) involves a “balancing exercise”: Australian Securities and Investments Commission v Wilson [2020] FCA 873; 146 ACSR 149 at [36] (Jackson J).

13    Generally, a persuasive case must be made out to use a video link to take evidence, particularly when that mode of evidence is being imposed on an unwilling cross-examining party: see Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; 181 FCR 152 at [77]–[78] (Buchanan J). The position in relation to the use by courts of AVL confronted a watershed moment during the onset of the Covid-19 pandemic. The pre-Covid-19 authorities were informed by the (then) limits of technology, as well as the difficulties of replicating the atmosphere and chemistry of an in-courtroom examination, and the disadvantages to a cross-examiner. For example, in Dorajay Pty Ltd v Aristocrat Leisure Ltd [2007] FCA 1502 at [7], Stone J referred to the “problems in maintaining a line of cross-examination” and described it as a critical problem “[a]s a matter of justice to both parties”.

14    However, since the challenges of the Covid-19, both courts and practitioners have proved themselves as adaptable as other parts of the community in the embrace of technology. The technology used by this and other courts has improved markedly, and continues to improve. Practitioners have developed their skills and techniques to not only master the technology, but the art of cross-examination through different medium. As that has occurred, Courts too have developed their expertise. As Jackson J observed in Wilson, the Court has gained “more experience with taking contentious evidence by video link and more confidence in its efficacy”: at [44]. That includes well-developed procedures to facilitate cross-examination by reference to documents: see Capic v Ford Motor Co of Australia Ltd (Adjournment) [2020] FCA 486 at [20] (Perram J). Overall, it has been observed that a “well-prepared cross-examination can be as, or just about as, effective in a virtual setting”: Auken at [49] (Stewart J). On the other hand, other judges have observed that there is “almost an inevitable disadvantage” (at [50]) to the cross-examiner conducting cross-examination via AVL: Southernwood v Brambles Limited (No 2) [2022] FCA 973 (Murphy J).

15    The applicants accepted that there have been advances in technology through the use of platforms such as Microsoft Teams and Dropbox that may reduce the technical issues that attend the provision of evidence via AVL. The applicants also acknowledged that Courts and practitioners are more familiar with remote courtroom arrangements in a post-Covid19 context than previously. However, the applicants submitted that authorities decided during the global pandemic had to be approached with some caution given there were restrictions on movement and social interactions as well as, in some cases, mandatory quarantine requirements: see Palmer v McGowan (No 2) [2022] FCA 32; 398 ALR 524 at [44] (Lee J); Southernwood at [40]–[41]; ASIC v Wilson (No 2) [2021] FCA 808; 153 ACSR 649 at [34] (Jackson J). The need for pragmatism and the additional burdens that applied to witnesses travelling from overseas that arose in those circumstances and the fact that they no longer apply may have informed what has been described as a “trend towards re-evaluating a confidence in the functional equivalence between in person and AVL evidence”: R v Walker [2025] NSWCCA 62 at [32] (Dhanji J, Harrison CJ at CL agreeing); see also Palmer at [44]; [46]–[47].

16    The applicants also pointed to a long line of authority recognising the disadvantages that a Court may face in assessing the testimony of witnesses via AVL. In particular, the applicants emphasised that this was obviously the case where the credit of the relevant witness is in issue: see Southernwood at [49]–[50]. Or where a case involves complex issues or a large volume of documents, the technical complexities with remote evidence may be compounded. It was submitted that, whatever the effect of technological advances and familiarity with remote procedures, these things do not ameliorate the difficulties or disadvantages that a Court may face in assessing a witness’s evidence or that a party may face in cross-examining a witness, where evidence is given remotely. Further, the applicants submitted that, whatever the view of the individual judge on his or her capacity to assess witness testimony via AVL, the forensic disadvantage to the cross-examiner is a separate consideration.

17    Although the technology has advanced and the legal profession has adapted, it has to be accepted that the use of AVL does not replicate in every sense the solemnity and atmosphere of a Court room, or the subtle or not so subtle chemistry involved in cross-examination. In Capic, Perram J said at [19] that AVL technology “tends to reduce the chemistry which may develop between counsel and the witness” and that this was coupled with the “reduction in formality in the proceedings”. As Perram J also observed in Blackrock Asset Management Australia Services Ltd v Waked (No 2) [2011] FCA 479 at [46]:

A trial is, in fact, a public event in which witnesses are confronted by their cross-examiners and in which they give evidence in front of the very people who are involved in the case. The giving of evidence by video link is unsatisfactory in a number of ways. That is not to say that in some cases it is not appropriate.

18    Rival judicial views have been expressed as to whether the use of AVL enhances or inhibits the Court’s assessment as to a witness’ credibility including by reference to demeanour and impression informed by human experience and quintessentially based on human observation. Some judges have considered that the subtleties and nuances of certain evidence can be better assessed in person: see, for example, Palmer at [43], [45]–[47] (Lee J). Conversely, however, other judges have opined that a witness’ facial expressions, reactions, bodily movements and gestures may be enhanced by audio-visual technology compared to evidence given in Court, benefitting both the Court and counsel: see, for example, Capic at [19] (Perram J); Auken at [49]–[50] (Stewart J).

19    The New South Wales Court of Criminal Appeal recently addressed these matters in Walker at [32]–[37] (Dhanji J; Harrison CJ at CL agreeing):

[31]     … [S]ome judges have expressed the view that the quality of modern platforms and the size of video screens actually enhances the ability to observe witnesses. In Capic v Ford Motor Co of Australia Limited [2020] FCA 486 (at [19]), Perram J stated that his “perception of the witness’ facial expressions is much greater than it is in Court”. Similar observations were made by Lee J in Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504 (at [33]).

[32]     There is, however, something of a trend towards re-evaluating a confidence in the functional equivalence between in person and AVL evidence. In R v Early (No 4) [2023] NSWSC 505, Yehia J made reference to a number of authorities and observed (at [35]) that the increased use of AVL evidence that came about as a result of the COVID-19 pandemic was “a dramatic response to an unprecedented situation” but that it remained the case that it was not the equal of in person testimony. Her Honour cautioned that considerations such as cost efficiency and the desire to reduce inconvenience would not necessarily outweigh the potential for the giving of evidence by AVL to operate unfairly to the opposing party.

[33]     Interestingly, reflecting what may be a growing scepticism, Lee J, subsequent to his remarks in Australian Securities and Investments Commission v GetSwift, with the benefit of further experience and “subsequent reflection”, reviewed his position in Palmer v McGowan (No 2) [2022] FCA 32; (2022) 398 ALR 524, stating (at [46]-[47]):

“46     Related to this point, is that increasingly I have felt a nagging disquiet that I may perhaps be missing something in assessing the evidence of a witness by reference to the tone of voice or non-verbal signals. As time has gone on, it is [sic] has become more evident to me that in an audio-visual feed, minor differences in emphasis or tone can be more difficult to appreciate and assess.

47     It has, of course, become common for scepticism to be expressed about the advantage that trial judges enjoy in seeing a witness give evidence. But despite these well-founded criticisms and the fact that by video a judge can observe the manner of giving evidence remotely, based on my experience in recent times, I consider I have a better prospect of understanding the subtleties and nuances of the sort of evidence to be given in the present case, if it is given in person…”

[34]     Concerns as to the use of AVL go beyond the capacity of the tribunal of fact to assess demeanour, extending to the loss of the immediacy and austerity of the process of adducing evidence in the courtroom. Thus, in Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250, Bell P (with whom Bathurst CJ and Payne JA agreed) said (at [50]):

“In certain cases, depriving the cross-examiner of the ‘reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party’ may also work relevant unfairness: see Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152; [2009] FCA 1306 at [78].”

[35]     In a similar vein are the observations of Snaden J in Rooney v AGL Energy Limited (No 2) [2020] FCA 942 (at [18]):

“I acknowledge that some judges of this court have expressed the view that such assessments can be made as well by remote means as by traditional in-court examination: see, for example, ASIC v Wilson [2020] FCA 873, [35] (Lee J); Tetley v Goldmate Group Pty Ltd [2020] FCA 913, [16] (Bromwich J); and Capic v Ford Motor Company of Australia Ltd [2020] FCA 486, [19] (Perram J). Those conclusions are, of course, personal to those who have drawn them. My own experience of present-day remote hearing technology is slightly less positive (although, I stress, not negative). I consider it a good and, in many instances, necessary “Plan B”. However, the available technology cannot fully replicate the court room environment that is so often central to an adversarial system of civil justice. In my experience, the technology inhibits (if not prohibits) the cadence and chemistry – both as between bar and bench, and bar and witness box – that personify well-run causes. Those are traditional forensic benefits of which litigants ought not too lightly be deprived: Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152, 171 [78] (Buchanan J). Further, the technology often begets delay, particularly when documents are to be supplied remotely. Although broadly reliable, it is not uncommon for connections to be momentarily of poor quality, occasionally to the point that they are unusable. All of these factors influence the user experience of a justice system from which all litigants are entitled to benefit.”

…

[37]     The trend appears to be towards an acknowledgement that the comfort that courts have developed with the use of AVL as a result of improvements in quality, and the corresponding increase in the frequency with which it is used, should not be confused with such evidence being the equivalent of in-person testimony.

20    I agree with the observation made by Dhanji J at [37].

21    It should not be assumed that issues relating to witness testimony being given by AVL was not one that existed well before the onset of the Covid-19. In Kirby v Centro Properties Limited [2012] FCA 60; 288 ALR 601 at [3], Gordon J observed that it was not “uncommon” in modern litigation for there to be a request for evidence to be given by video link and that competing views had developed in the exercise of discretion. Her Honour observed that two approaches had developed as follows:

[4]     The first is that given the advanced state of video link technology and also because of the convenience of the procedure and the savings in time and cost, a substantial case needs to be made out to warrant the Court declining to make an order for evidence to be taken by video link: see Reinsurance Australia Corp Ltd v HIH Casualty & General Insurance (in liq) [2002] FCA 1549 at [10]-[11]; Versace v Monte [2001] FCA 1454 at [16] and Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 at [25].

[5]     The other approach has been described as more cautious, and requires good reason to be shown before leave to give evidence by video link is granted: Australian Competition & Consumer Commission v World Netsafe Pty Ltd [2002] FCA 526 at [7]; Sunstate Airlines (Qld) Pty Ltd v First Chicago Australian Securities Ltd (unreported, NSWSC, Giles CJ, 11 March 1997) at 6; Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd (2001) 53 NSWLR 1 at [27].

22    After reviewing the authorities, Gordon J stated at [11] that there was “little to be gained by adding another or different gloss on the state of the authorities” and that:

In the end, each case will turn on its own facts and circumstances and the exercise of discretion as to what is appropriate in a particular case will involve a balancing exercise as to what will best serve the administration of justice consistently with maintaining justice between the parties. All modern courts seek to limit the costs of litigation. One cost is in requiring a witness, especially a witness who is not a party, to travel to Australia to give viva voce evidence. Whether that cost can be minimised by giving that evidence by video link, as has been said, will need to be assessed not just on a case by case basis but also on a witness by witness basis.

23    Her Honour outlined at [10] a non-exhaustive list of factors that would be relevant to the exercise of the discretion:

Putting the differences in approach to one side, the courts have taken into account a number of factors in exercising its discretion under s 47A(1) of the Act including:

(1)    the employment commitments of an overseas witness: see, for example, Reinsurance Australia Corp at [4];

(2)    whether the credibility of the witness is in issue: ASIC v Rich at [28]; Australia Medical Imaging at [27]; Sunstate Airlines (Qld) at 6 and Lamesa Holdings BV v Commissioner of Taxation (unreported, FCA, Sackville J, 30 July 1998, BC9803928) at [6];

(3)    whether the witness’ evidence will be “centrally important” to the case: see, for example, StoresOnline at [15] and ASIC v Rich at [22] and [28];

(4)    whether the use of video link may frustrate or delay the management of documents in cross-examination: see, for example, ASIC v Rich at [31].

See also ASIC v Rich at [19]. It was common ground that while these factors may weigh into the balancing exercise, they are neither exhaustive nor prescriptive: see ASIC v Rich at [28].

24    In my view, it would be antithetical to the exercise of the wide discretion under s 47A(1) of the FCA Act to proceed on the basis that the dictates of the interests of justice are such that there is a predisposition towards one or other method. The “overriding consideration” must “forever remain what is considered by the Court to be in the best interests in the administration of justice”, including the need to ensure that justice is done as between the parties: Pirovic at [11]. In this regard, I gratefully adopt not only Gordon J’s analysis, but also that of Murphy J in Southernwood at [43]-[44]:

The courts have taken into account a variety of factors in exercising the discretion under s 47A(1), including the employment commitments of an overseas witness; whether the credibility of the witness is in issue; whether the witness’s evidence will be “centrally important” to the case; and whether the use of video link may frustrate or delay the management of documents in cross-examination: see Kirby at [10] and the cases there cited. Each of those can be said to be relevant in the present application.

But those factors are neither exhaustive nor prescriptive and the discretion under s 47A(1) is a broad one in which the determining consideration is the interests of justice in the particular facts and circumstances of the case. It involves a balancing exercise as to what will best serve the administration of justice, doing so consistently with maintaining justice between the parties: Kirby at [11]. It must also be guided by the overarching purpose in s 37M, namely, the facilitation of the just resolution of disputes according to the law and as quickly, inexpensively and efficiently as possible: Palmer at [40]. This approach to the discretion is consistent with the remarks of Flick J in Corrigan v Commvault Systems (Australia) Pty Ltd [2011] FCA 107; 192 FCR 71 at [12], with which Besanko J agreed in Fair Work Building Industry Inspectorate at [16]. Those decisions show:

(a)     it is for the party seeking a favourable exercise of the discretion to establish the reason for its exercise having regard to the specific facts and circumstances and the overriding consideration of ensuring that justice is done as between the parties to the proceeding; and

(b)     there is no presumption nor prima facie case as to the way in which the discretion is to be exercised in the absence of countervailing considerations.

3.    CONSIDERATION

25    Having regard to the above principles, S&P contended that, as Ms Jordan was unwilling to travel to Australia, the Court should (a) determine whether her evidence was centrally relevant to the proceedings, (b) if so, determine whether it would be in the interests of justice to receive her evidence, and (c) if so, the Court would make an order under s 47A(1) of the FCA Act that her evidence be given by AVL or order that her evidence be taken on commission. The logic of this argument proceeded on the basis that, as Ms Jordan was no longer its employee, S&P was unable to compel her to travel to Australia to give evidence and, as she was a foreign resident, the Court could not use its coercive powers to compel her attendance to give evidence before the Court.

26    The applicants submitted that S&P had not established Ms Jordan’s unwillingness to travel, or that the reasons given for her unwillingness to travel provided an adequate or satisfactory basis upon which the Court would accede to the orders sought by S&P. Both Senior Counsel for the Vale Applicants, and Senior Counsel for the Basis Applicants, submitted that their respective clients’ cross-examination of Ms Jordan would be document intensive and they would be prejudiced in their cross-examination if it was conducted by AVL. In this regard, I was informed that Ms Jordan’s cross-examination is expected to take two days in total.

27    S&P countered these submissions by repeating that they were not in a position to compel Ms Jordan to attend Court and essentially contended that, unless the Court made a relevant order that Ms Jordan’s evidence was given by AVL or taken on commission, S&P would be deprived of the opportunity of calling a critical witness in its case. It was submitted that the Court should accept that Ms Jordan was unwilling to attend and nothing could be done about this, and it was irrelevant to the Court’s exercise of power as to why Ms Jordan is unwilling to travel. As to this last point, S&P submitted that the true issue was not about Ms Jordan’s reasons for refusing to travel to Australia. Instead, it was one of fairness and justice as between S&P and the applicants as to whether S&P should be deprived of opportunity to call critical evidence because of the unwillingness of the witness to travel to give evidence, and whether in those circumstances the applicants would be prejudiced in a way that could not be ameliorated by the evidence being given by AVL or taken on commission. S&P further submitted that prejudice to the cross-examiner could be further ameliorated by other means. In this regard, S&P relied upon the following observations made by Besanko J in Roberts-Smith v Fairfax Media Publications Pty Ltd (No 10) [2021] FCA 317; 277 FCR 337 at [57]:

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.

28    It is necessary for me to address aspects of the parties’ contentions.

29    First, I reject S&P’s contention that the reasons why Ms Jordan is unwilling to travel are irrelevant to the exercise of the Court’s discretion. I accept that neither the Court nor S&P is in a position to compel Ms Jordan’s attendance to give evidence in person given she is a foreign resident. However, in my view, her reasons for refusing to travel to Australia are relevant to the exercise of the indulgence that S&P seeks. S&P’s submissions assumed that the question before the Court is merely one of balancing interests as between the parties. This submission did not sufficiently attend to the Court’s interests in the administration of justice. This Court is a superior court of record and one of the statutorily created federal courts of the Commonwealth. The fact that a witness refuses to travel to give evidence before the Court for good reason or for no good reason may (depending on the circumstances) be relevant to an assessment as to whether the party seeking to call evidence from that witness should be granted the indulgence of doing so.

30    Second, I accept that prejudice to the cross-examiner is a relevant consideration in the exercise of the Court’s discretion. Despite all of the modern advancements in technology, it is the essence of a trial at common law that, subject to statutory provisions to the contrary, it be conducted in public, and, where witnesses are called to give evidence, they are confronted by cross-examination in public and in person. Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial: Lee v R (1998) 195 CLR 594 at [32] (Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ). As observed in J D Heydon, Cross on Evidence (11th ed, LexisNexis Butterworths, 2017), at [17430]:

The first object of cross examination is to elicit information concerning facts in issue or relevant to the issue that is favourable to the party on whose behalf the cross examination is conducted. The second is to cast doubt upon the accuracy of the evidence in chief given against that party.

31    Where the credit of a witness is in issue, “cross-examination on credit is an essential tool for the testing of witness testimony”: R v Jones [2017] SASCFC 163; 129 SASR 522 at [2] (Kourakis CJ; Nicholson J agreeing).

32    However, it should not be assumed that a cross-examination by AVL is any less a cross-examination that inheres to the common law method. It is, however, a method that is deprived of the atmosphere of an in-person court room dynamic, including the chemistry that this involves. And, one which has the risk of diminishing the solemnity of the occasion of giving evidence in court.

33    Third, it should not be assumed that the prejudice to the cross-examiner is a matter that is confined to the party conducting the cross-examination. The Court’s determination of contested issues is assisted by cross-examination. It is part and parcel of the common law tradition that testing of evidence by cross-examination assists in the Court’s resolution of contested issues. It follows that prejudice to a cross-examining party may also occasion prejudice to the administration of justice.

34    Fourth, none of the above points are intended to indicate that cross-examination via AVL is any less or more of assistance merely because of the medium, though the medium may present challenges and otherwise does not replicate in every respect the conduct of in-person testimony. Experience, especially learned experience, throughout the Covid-19 pandemic demonstrated that cross-examinations conducted via AVL, like cross-examinations via the traditional method, may be of mixed quality. That is so irrespective of technology.

35    Fifth, at this juncture it is not possible to say, other than to accept it as a possibility, that the contested issues of fact and credit are to be resolved by resort to an assessment of demeanour or any of the other more subtle means by which the judicial method is brought to bear in passing judgment on a witnesses’ evidence. Nor is it possible to say at this stage that the giving of evidence by AVL in this case will facilitate or inhibit the making of these assessments.

36    Taking these matters into account, I am confronted here with the reality that the trial is due to commence in less than a fortnight, Ms Jordan lives in New York, she is unwilling to travel, and a number of matters are unknown as to how Ms Jordan’s evidence (if it is given by AVL) will play out. Given these and the other matters I address below, I consider that the interests of justice would be best served by making an order that Ms Jordan’s evidence be given by AVL. In making such an order, during the course of the argument, I made it clear to both parties that I am prepared to revisit the order or invite further submissions in a manner consistent with what Besanko J said in Roberts-Smith at [57]. Specifically, if I form the view that by reason of technology or some other reason, I am not in a position to make a proper assessment as to Ms Jordan’s evidence or that the cross-examination is being prejudiced, I will hear the parties at that time as to whether I should revoke the order that I have made or take one or more of the courses identified by Besanko J.

37    In coming to this conclusion, I have taken the following matters into account.

38    First, I accept, with one qualification, that Ms Jordan is unwilling to travel to Australia for a reason that is understandable, even if it based on her perception of things that may or may not occur. Ms Jordan is an employee of the US Federal Government and holds concerns about her on-going employment. The evidence I have received is that she is required to work in the office in-person due to the Presidential Memorandum entitled “Return to In-Person Work” dated 20 January 2025, and the memorandum from the United States Office of Personnel Management to the Heads and Acting Heads of Department and Agencies dated 22 January 2025 (Return to Office Memo and Guidance). Ms Jordan is also concerned about the US Federal Government’s policy to reduce the size of its workforce, which, among other documents, has been expressed in the document entitled “Fact Sheet: President Donald J. Trump Works to Remake America’s Federal Workforce” dated 11 February 2025. Due to the Return to Office Memo and Guidance, and the Government policy regarding the required reduction in the Federal Government workforce, Ms Jordan is concerned that if she were to travel to Australia to give evidence in person at the trial of the Proceedings, she may be terminated from her employment.

39    I accept that Ms Jordan has fears about her employment security. I accept that those fears are genuinely held. However, as the applicants submitted, it is notable that Ms Jordan has not applied for leave to undertake travel to Australia. It may be that she has fears about seeking leave in the present domestic or geopolitical climate. I gave serious consideration to whether a condition should be imposed on the grant of an order that S&P seek that Ms Jordan apply for leave, but on reflection I think it is best for certainty to make the order without condition given the commencement of the trial is imminent.

40    I have been troubled by the fact that this order is being made in the circumstances of a particular witness who is unwilling to travel when others are. However, I have been persuaded to make the order due to the criticality of Ms Jordan’s evidence to S&P’s case and the seriousness of the allegations involved.

41    Second, in light of the first point, I accept S&P’s submission that the choice here is as between receiving Ms Jordan’s evidence or not receiving it. If I do not make an order, S&P will be deprived of the opportunity of calling Ms Jordan’s evidence. It would not be in the interests of the administration of justice for S&P to be deprived of that opportunity in the following circumstances:

(a)    since the commencement of the proceedings, both the Vale Applicants and the Basis Applicants have identified Ms Jordan as one of the “Key Employees” for the purposes of their respective claims;

(b)    “Key Employees” are alleged by the applicants in both proceedings to be employees “responsible for determining its ratings methodology and criteria for CDOs” whose knowledge can be said to have been held by S&P;

(c)    by reason of the knowledge of the “Key Employees”, S&P is alleged to have known of certain errors in its applicable models;

(d)    Ms Jordan, together with Ms Rose, are the only “Key Employees” from whom S&P has filed evidence in the proceedings;

(e)    Ms Jordan gives evidence of her state of mind and knowledge concerning allegations made in both proceedings; and

(f)    the applicants accept that Ms Jordan is a critical witness to S&P’s case.

42    Accordingly, I accept that the interests of justice weigh in favour of receiving Ms Jordan’s evidence.

43    Third, I had also given serious consideration to whether instead of ordering evidence to be given via AVL, the evidence could be taken on commission. I had a number of unanswered questions about this aspect of S&P’s application, but it was one I was prepared to countenance when it was both Ms Rose and Ms Jordan who were unwilling to travel to Australia and the collective time to be taken up in the cross-examination of both witnesses was estimated to be five days. As it happens, Ms Rose is prepared to travel to Australia, and I am not prepared to countenance taking evidence on commission mid-trial where the time in travel and its after-effects would be greater than the period of her evidence.

44    Fourth, I am conscious of the potential disadvantages to the cross-examiner. I have given considerable weight to the views expressed by Senior Counsel for each of the applicants. However, as set out above, I propose to deal with those issues during the trial. As noted above, if there are any issues that arise, I will give consideration to revoking the leave that has been granted or taking another course.

45    Finally, as I also made it clear to the parties, whilst I will hear the parties further about the times at which Ms Jordan’s evidence is to be given, I am not prepared to alter the sitting hours of the Court in a way that imposes an impossible or impractical burden on staff and officers of the Court and its precinct.

Associate:

Dated:    24 June 2025