Federal Court of Australia

Doyle v Cooper as Liquidator of NQ Minerals PLC (in liq), in the matter of Doyle [2025] FCA 1008

ORDERS

THE COURT ORDERS THAT:

1.    Until further order of the Court, pursuant to s 37A of the Federal Court of Australia Act 1976 (Cth), Mr Walter Daniel Doyle be permitted to give evidence in the proceeding by audio-visual link from Monaco when required for cross-examination on his affidavit evidence.

2.    Costs be in the cause.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an Interlocutory Application filed by the applicant, Mr Walter Doyle, on 11 August 2025, seeking Orders pursuant to s 47A(4)(a) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) that he be allowed to give his testimony in this proceeding remotely, from Monaco. The respondents resist that application for several reasons.

2    Before turning to the Interlocutory Application currently before the Court, it is useful to outline a brief background to the substantive proceedings. The substantive proceedings before the Court concern an application by Mr Doyle to have a bankruptcy notice issued to Mr Doyle, on behalf of the respondents, set aside, as well as an injunction restraining the respondents from presenting a creditor’s petition against Mr Doyle. The debt the subject of the bankruptcy notice arises from a judgment of the High Court of Justice in the United Kingdom in the amount of £1,350,341.61 plus interest of £312,724.32 and costs (UK Judgment). On 19 December 2024, the UK Judgment was registered in the Queensland Supreme Court by Bowskill CJ under Part 2 of the Foreign Judgments Act 1991 (Cth) (Registration Orders). As a matter of law, the effect of the Registration Orders is that the UK Judgment is now to be treated as a judgment of the Queensland Supreme Court: Foreign Judgments Act s 6(7).

Mr Doyle’s Submissions

3    In support of the Interlocutory Application, Mr Doyle submitted, in summary, that:

    Mr Doyle is able to satisfy the conditions of s 47C(1)(a)(i) and (b) of the FCA Act and there is no reason to impose additional conditions under s 47(C)(1)(d) of the FCA Act.

    The opinion that a cross-examiner might be disadvantaged by a witness giving evidence remotely no longer predominates, especially since the COVID-19 pandemic: Rowe v Queensland [2021] NSWSC 133.

    The fears once held regarding disadvantages in the use of cross-examination via audio-visual link (AVL) (see Australian Competition and Consumer Commission v World Netsafe Pty Ltd (2002) 119 FCR 303 at [7]) have not manifested in the use of online platforms. As such, such previous fears no longer hold true: Capic v Ford Motor Co of Australia Ltd [Adjournment] [2020] FCA 486 at [19]; Australian Securities and Investment Commission v GetSwift Ltd [2020] FCA 504 at [25].

    It is in the best interests of justice for Mr Doyle not to have to travel to Australia. This is because a key aspect of Mr Doyle’s case in seeking to have the bankruptcy notice set aside is that the first respondents are unable to establish that Mr Doyle has the requisite connection with Australia under s 43(1)(b) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) to attract the jurisdiction of a court of bankruptcy under that Act to make a sequestration order. One way in which the requisite connection to Australia under the Bankruptcy Act can be established is by the debtor being personally present in Australia at the time when the act of bankruptcy was committed: Bankruptcy Act s 43(1)(b)(i). It could be contrary to the interests of justice to require Mr Doyle’s attendance in Australia where such attendance could be used to establish the jurisdiction of a court of bankruptcy.

    Mr Doyle has nominated the relevant date for any act of bankruptcy as 25 June 2025. However, the first respondents have not accepted this date. It may be that the first respondents seek to nominate some other date for the purposes of any creditor’s petition they might make, including the date at which Mr Doyle is present in Australia for the purposes of cross-examination in this proceeding. Despite the fact it could be inferred the first respondents would seek to rely on the act of bankruptcy as that in s 40(1)(g) of the Bankruptcy Act, they may not be limited to that act. For example, they may seek to contend that Mr Doyle committed some other act of bankruptcy at the time he is present in Australia to satisfy s 43(1)(b) of the Bankruptcy Act.

    The prejudices outlined above outweigh any perceived forensic disadvantage to the respondents caused by Mr Doyle being cross-examined via Microsoft Teams, or a similar platform. Further, the respondents have cited vague references to the disadvantages of cross-examination via AVL, but do not elaborate on how any disadvantages will impact adversely on the Court’s assessment of Mr Doyle’s evidence.

    Section 47A of the FCA Act confers a discretion on this Court so that decisions in previous cases do not assist in this matter: Jenkins v Bushby [1891] 1 Ch 484, 495.

    The respondents have not addressed the matters required to be considered under s 37M of the FCA Act and conceded in their submissions that “this is not an overly complex case” (Respondents’ submissions at [10]).

    Counsel for Mr Doyle will not read or rely on aspects of Mr Doyle’s evidence that relate to a challenge of the UK Judgment or whether an act of bankruptcy has been committed at this interlocutory stage.

    The matters for consideration in this proceeding are largely of a legal, or constructional, nature. Accordingly, it is doubtful that Mr Doyle’s credit can be in issue on either basis.

    The respondents’ characterisation of the authorities is wrong. The most that can be said for the diverging authority is that different judges held different views about the exercise of discretion in different contexts, both before and after the pandemic.

    The respondents’ reliance on the view of Murphy J in Southernwood v Brambles (No 2) [2022] FCA 973 is taken out of context. Paragraph 50 of Southernwood stated:

For the cross-examining party, cross-examination via video link in large, complex cases involving numerous documents, including on issues of credit, is less effective in my view than cross-examination in court. In my opinion, there is almost an inevitable disadvantage for the cross-examining party in such circumstances.

To that end, this is not the type of case as was seen in Southernwood. Justice Murphy also acknowledged the considerations of resolving disputes “as quickly, inexpensively and efficiently as possible”: Southernwood at [44], [48].

    The cost of Mr Doyle attending Australia to give evidence in person would be at least $7,000 and would cause practical difficulties. It is the respondents who are seeking to enforce a judgment debt against Mr Doyle and requiring him to attend in person would not maximise the value of Mr Doyle’s potential bankrupt estate.

    The undertaking offered by the respondents is of little comfort to Mr Doyle as it is not offered to the Court and is merely a private undertaking. Even though a breach of the undertaking may give rise to a cause of action, Mr Doyle would lose title to it if he was made bankrupt. Therefore, the undertaking confers no real benefit on Mr Doyle.

Respondents’ submissions

4    In response to Mr Doyle’s submissions, the respondents submitted, in summary, that:

    Mr Doyle’s evidence as to whether he was carrying on business in Australia is a relevant issue regarding whether a sequestration order can be made against him under s 43 of the Bankruptcy Act. Mr Doyle’s credit in relation to this issue will be a key area for cross-examination at the final hearing and is likely to have a significant impact on the Court’s determination of the substantive proceedings.

    Caution should be used when relying on judgments delivered in or around the COVID-19 pandemic, as Judges took a more pragmatic approach to the use of audio-visual technology around that time: Southernwood at [39]-[40]. There has been a shift in the approach of Courts since the end of the pandemic, and that shift should be considered in the present case.

    The general principle remains that oral evidence should be given in person: Southernwood at [47].

    Even if there exists a greater willingness by Courts to allow evidence to be given via AVL, it is generally accepted that the giving of evidence remotely is unsatisfactory in a number of ways.

    Given these limitations, the respondents should not be faced with the “almost inevitable disadvantage” that comes from cross-examining remotely: Southernwood at [50]. While this case is not overly complex, it is likely to turn on the evidence of Mr Doyle under cross-examination. The Court should not be hindered in assessing Mr Doyle’s evidence by the fact he is giving it remotely.

    It is for Mr Doyle to demonstrate why he ought be permitted to give evidence via AVL. Mr Doyle is the moving party and has not submitted that he is unable to give evidence in person.

    According to Mr Doyle’s submissions, his main objection to giving evidence in person is a concern that the respondents may seek to use his physical presence in Australia to rely on an act of bankruptcy other than an act of bankruptcy under s 40(1)(g) of the Bankruptcy Act committed on 25 June 2025. To this end, the respondents undertake that Mr Doyle being present in Australia for the purposes of cross-examination at the hearing of this proceeding will not be relied upon as a basis for the conferral of jurisdiction of the Court to make a sequestration order. In light of that undertaking, Mr Doyle’s objection ought fall away.

consideration

5    Section 47A of the FCA Act provides:

(1)     The Court or a Judge may, for the purposes of any proceeding, direct or allow testimony to be given by video link, audio link or other appropriate means.

Note: See also section 47C.

(2)     The testimony must be given on oath or affirmation unless:

(a)    the person giving the testimony is in a foreign country; and

(b)    either:

(i)    the law in force in that country does not permit the person to give testimony on oath or affirmation for the purposes of the proceeding; or

(ii)    the law in force in that country would make it inconvenient for the person to give testimony on oath or affirmation for the purposes of the proceeding; and

(c)     the Court or the Judge is satisfied that it is appropriate for the testimony to be given otherwise than on oath or affirmation.

(3)    If the testimony is given:

(a)    otherwise than on oath or affirmation; and

(b)    in proceedings where there is not a jury;

the Court or the Judge is to give the testimony such weight as the Court or the Judge thinks fit in the circumstances.

Note: In proceedings where there is a jury, the Judge may warn the jury about the testimony (see section 165 of the Evidence Act 1995).

(4)    The power conferred on the Court or a Judge by subsection (1) may be exercised:

(a)    on the application of a party to the proceedings; or

(b)    on the Court's or Judge's own initiative.

(5)    This section applies whether the person giving testimony is in or outside Australia, but does not apply if the person giving testimony is in New Zealand.

Note: See Part 6 of the Trans - Tasman Proceedings Act 2010.

6    Section 37M of the FCA Act provides, relevantly:

(1)    The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a)    according to law; and

(b)    as quickly, inexpensively and efficiently as possible.

(2)    Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:

(a)     the just determination of all proceedings before the Court;

(b)     the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)     the efficient disposal of the Court's overall caseload;

(d)     the disposal of all proceedings in a timely manner;

(e)     the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(3)     The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

…

7    The Court’s power under s 47A of the FCA Act is a discretionary one. Accordingly, I am not strictly bound by precedents in this proceeding. However, it is useful to outline the approach taken by this Court, and others, on similar issues, in order to inform my exercise of discretion.

8    The use of AVL in this Court is far from a new phenomenon, nor one that came into existence as a response to the COVID-19 pandemic: see, e.g., McDonald v FCT [2000] FCA 577. In McDonald, Finn J said:

[21]    As is now well known, the video-link facility is being utilised with greater regularity and acceptance in court proceedings - particularly of this Court - as judges have come to acknowledge that apprehended disadvantages from the use of video-links have not materialised as expected: see generally the discussions in B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95 at 105ff and in Studniberg v J P Morgan Australia Ltd [1998] NSWIR Comm 483.

[22]    Significantly, the facility has been used notwithstanding that a witness' evidence, for example, (a) was "central" to a case, (b) was contentious, (c) would be expected to occupy three to four days and (d) was to be given in a serious criminal matter: see R v Kyu Hyuk Kim (1998) 104 A Crim R 233. Equally judges have accepted in relation to trials that a video-link is, for practical purposes, much the same as hearing evidence in court: see Lord Donaldson MR's observations quoted in B's case, above, at 107; and that it does not pose a significant impediment to the assessment of a witness' demeanour: see B's case at 109; see also the observations of Young J in Bayer AG v Minister for Health as quoted in Studniberg's case, above. The real constraint upon the use of a video-link arises, as was identified in B's case at 107, from "the need to ensure that it is used fairly".

9    Of course, during the COVID-19 pandemic, the use of AVL not just to examine witnesses, but indeed to conduct entire trials, became the rule, rather than the exception. Speaking of the experience of courts during the pandemic, Harrison J in Rowe stated:

[17]    Having regard to the experience of this Court since early 2020 in the conduct of litigation by video link or other remote connection, it can no longer be accepted without question that, with the possible exception of a criminal trial before a jury, evidence given from a screen is any less forceful or reliable than evidence given from a chair in the courtroom.

10    Similarly, Perram J in Capic stated:

[19]    The Respondent then submitted that the cross-examination of witnesses over video-link is unacceptable. I accept the Respondent’s submission that there are many authorities in this Court which underscore the unsatisfactory nature of cross-examination by video-link: see, eg, Hanson-Young v Leyonhjelm (No 3) [2019] FCA 645 at [2] ; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; 181 FCR 152 at 171 [78]. However, those statements were not made in the present climate, nor were they made with the benefit of seeing cross-examination on platforms such as Microsoft Teams, Zoom or Webex. My impression of those platforms has been that I am staring at the witness from about one metre away and my perception of the witness’ facial expressions is much greater than it is in Court. What is different — and significant — is that the video — link technology tends to reduce the chemistry which may develop between counsel and the witness. This is allied with the general sense that there has been a reduction in formality in the proceedings. This is certainly so and is undesirable. To those problems may be added the difficulties that can arise when dealing with objections.

(emphasis added).

11    On the other hand, Judges of this Court have also expressed their dissatisfaction with the use of AVL by witnesses giving evidence. In Palmer v McGowan (No 2) [2022] FCA 32, Lee J stated:

[45]    In relation to many witnesses, including highly intelligent professionals, I have come to appreciate a somewhat different dynamic between the witness and the cross-examiner than is present at an orthodox hearing. Speaking generally, the witness feels an additional degree of comfort in being physically remote from the courtroom and being in their own surroundings. Incidentally, a tell-tale indication of this more “relaxed” environment is often seen by witnesses being far more casually attired than would be the case if they came into Court. This might be termed the “leisure wear” effect. Further, as much as courts seeks to reproduce the solemnity of a traditional hearing while operating online, at least in my experience, there a distinct difference in atmosphere. It is jejune to assume that exchanges (which may include confrontational exchanges) between two persons in close physical proximity to one another, is the same as exchanges that occur in the less intimate world of a video link.

[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 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. Credit is likely to be a factor in resolving at least some issues in this case. It is unnecessary to be more specific for present purposes, but I cannot discount the possibility that in this case (and these assessments are always case-specific) the close and careful assessment of the evidence-in-chief may be relevant in properly fixing any award of damages to either claimant based on consolation for hurt, and evidence given in cross-examination may be an important factor which assists me in justly determining this controversy.

12    The observations of Lee J in Palmer have been acknowledged by this Court in several other instances: Al Muderis v Nine Network Australia Pty Ltd (No 5) [2025] FCA 908; ACN 117 641 004 Pty Ltd (in Liq) v S&P Global, Inc (No 5) [2025] FCA 687; Southernwood.

13    In Kirby v Centro Properties Ltd [2012] FCA 60, Gordon J said, after outlining relevant authorities, that:

[11]    There is little to be gained by adding another or different gloss on the state of the authorities. 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.

14    I respectfully agree with and adopt the observations of her Honour in Kirby. To that end, I do not propose to add to the plethora of opinions on the effectiveness of evidence given by AVL in any great detail.

15    In the circumstances of this case, I am satisfied that Mr Doyle can give evidence via AVL, from Monaco, for the following reasons.

16    First, as was said by the respondents in their submissions, this is not an overly complex case. I do not expect Mr Doyle will be required to spend an extended amount of time under cross-examination. As matters currently stand, Mr Doyle’s two affidavits are 18 pages in length (excluding annexures).

17    Second, I have no reason to doubt (nor does it seem, do the respondents) Mr Doyle’s evidence that he has the appropriate technology available to him in Monaco to satisfy the requirements of s 47C(1) of the FCA Act. Similarly, I know that the Court room in Australia will satisfy those requirements.

18    Third, I am of the view that Mr Doyle’s concern referable to the respondents’ undertaking being a private one are valid. In forming this view, I am in no way suggesting that the respondents would breach their undertaking to Mr Doyle. However, the undertaking being a private one as between the parties comes with necessary limitations in terms of its efficacy.

19    Fourth, given the parties’, and indeed the Court’s, obligations under s 37M of the FCA Act, I am satisfied that making the order sought under s 37A of the FCA Act would resolve the dispute in line with the overarching purpose of civil disputes in the Court. This is particularly so given Mr Doyle’s unchallenged assertion that travelling to Australia to be cross-examined in person would cost at least $7,000, and it could be anticipated that the length of that cross-examination would not be significant.

20    Fifth, Mr Doyle’s Counsel have agreed not to read or rely on certain passages of Mr Doyle’s evidence at this stage of the proceeding. Although I have not considered the merits nor importance of that evidence given the interlocutory nature of this judgment, I simply note this point for completeness.

21    I am not persuaded that any disadvantage – perceived or otherwise – to the respondents’ Counsel in cross-examining Mr Doyle is outweighed by the overarching purpose of civil litigation in this Court as stated in s 37M of the FCA Act. If at any point in the proceeding the facts I have relied on above change, that can be dealt with at the relevant time.

22    For completeness, I do not consider it necessary to impose any additional conditions under s 47C(1)(d) of the FCA Act.

conclusion

23    For the reasons outlined above, I will grant Mr Doyle’s interlocutory application and make orders to allow his oral evidence to be given via AVL. I consider it appropriate, as sought by Mr Doyle, that costs be in the cause.

Associate:

Dated:    25 August 2025