Justice in HD: Why avoiding the jurisdiction doesn’t bar remote testimony
Challenge
A key family witness in a corporate winding-up dispute was unable to safely travel from the US to give evidence, due to genuine concerns about exposure to Australian bankruptcy and tax consequences. The trustees opposed letting him give evidence remotely.
Solution
Acting for the witness's family, who needed his evidence to defend the winding-up and pursue their own claims, Forbes Kirby (led by Nunzio Lucarelli KC) argued the witness's reasons for staying overseas were genuine and that his evidence should be heard by video link, with safeguards to manage any unfairness.
Outcome
The Court agreed with Forbes Kirby's submissions, granting the application and securing important evidence for their clients that would otherwise have been lost. The result reflects the firm's skill in complex insolvency and civil procedure matters, and adds to the growing post-COVID trend of courts embracing remote evidence.
We successfully acted in an application in the Federal Court where the Court made orders permitting an undischarged bankrupt residing in the United States to give evidence by audio visual link in complex corporate winding-up proceedings.
The application raised an important issue at the intersection of civil procedure, insolvency law and public policy. The witness was unwilling to return to Australia because of concerns that doing so could expose him to the operation of Australian bankruptcy and taxation laws. The applicants opposed the application, contending that evidence should be given in person, particularly where credibility would be in issue.
Led by Nunzio Lucarelli KC, we argued that the central question was whether the interests of justice would be served by allowing the Court to receive potentially significant evidence that would otherwise be unavailable. We submitted that the witness's concerns were genuine, that he was not compellable to attend from overseas, and that any prejudice arising from remote cross-examination could be managed through appropriate safeguards.
Justice Jackson accepted those submissions and granted the application. In detailed reasons, the Court held that:
- the witness's evidence was potentially important to the determination of the winding-up applications;
- his concerns about returning to Australia were genuine and substantial;
- refusing the application would deprive the Court of potentially material evidence; and
- permitting remote evidence in these circumstances would not undermine the operation of Australia's bankruptcy or taxation laws.
The judgment contained an interesting analysis of the House of Lords decision inPolanskiv Condé Nast Publications Ltd[2005] UKHL 10, [2005] 1 WLR 637. In that case, the House of Lords considered a request by famous director Roman Polanski to testify via video link from France in an English libel case. Polanski, a fugitive from the U.S. justice system, sought the order because he feared that appearing in person in the UK would lead to his arrest and extradition to the United States. In a landmark ruling, the majority held that a person’s status as a fugitive does not strip them of their right to access the courts or utilise modern procedural tools like video conferencing to protect their civil rights.
The decision provides useful guidance in the post-COVID era, as courts increasingly embrace technology to enhance efficiency, facilitate the administration of justice and improve access to the judicial process.
You can read the decision here:
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