Wednesday, 18 October 2017, Federal Court of Australia. Brisbane.
Mr Malouf was, once again, not required to attend at court however his lawyer indicated to the court that he would be giving evidence in person during the trial because he is alleged to have been “knowingly involved” with improper conduct by the company.
Justice Derrington reviewed the progress of this matter and made further orders including setting the matter down for a 10 day trial commencing 23 April 2018. The orders are set out below.
Both parties have clarified the allegations of fact set out in their concise statements by filing amended statements. The next steps are to determine what alleged facts can be agreed and which issues need to be determined by the court and, therefore, what evidence will need to be presented to the court.
Some of the evidence will be produced by way of an “affidavit of evidence in chief” which means that when they go to court for trial the court will go straight into cross-examination based on what is in their affidavits. Some of the evidence will be given “viva voce” (verbally on the day) and a précis (summary) of their expected evidence will be produced in advance and given to the other side.
In order to speed up the trial process, if any of the evidence is alleged by the other party to be inadmissible then there is a procedure to raise and try to deal with those objections before the trial.
His Honour encouraged the parties to see what further narrowing of the issues they could manage and complimented them on the progress they had made thus far in simplifying the issues that the court will have to determine at trial.
As previously noted, the parties have an incentive to show the court how willing they are to try to resolve matters because the same judge who deals with the directions hearings will also hear the trial.
The lawyers have indicated to the court that there will be a lot of examination of documents at the trial including scripts used by the sales staff, manuals produced by the company and websites operated by the company. The court will have to interpret the meaning of those documents. There will be some evidence explaining the documents and there will be significant time spent by each side’s lawyers in their opening and closing statements to the court.
In addition to Mr Malouf, there will be five individual customers giving evidence and possibly former staff of the company. There will also be evidence from asset representatives who have prepared a detailed analysis of the records of the company.
His Honour indicated that in document-heavy cases he like to have someone explain to him what the significance of the documents were rather than having to wade through the documents and figure it out for himself.
The matter will be next back in court on 8 December 2017 for a directions conference so His Honour can check to see the progress of the matter.