Reasonable efforts to secure an unavailable witness – Case note: ASIC v Money3 Loans [2025] FCA 110

A recent Federal Court decision sheds important light on when hearsay evidence can be adduced from a witness who is unavailable to personally give evidence at trial. The decision in Australian Securities and Investments Commission v Money3 Loans Pty Ltd (Trial Ruling No 2 – Witness Unavailability) [2025] FCA 110 is relevant to hearsay evidence in both civil and criminal proceedings.

Background: The law

The Uniform Evidence Acts provide exceptions to the hearsay rule to adduce evidence of hearsay representations made by a witness who is ‘not available’. In civil proceedings, the exception is found at s 63. In criminal proceedings, exceptions are found at s 65. Each exception relies upon the same definition of unavailability, to be found in Part 2, clause 4, of the Dictionary to the Uniform Evidence Act. Relevantly for present purposes, a person is taken to be not available to give evidence if:

 (f)     all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success; or

(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

In each case, the party intending to adduce the hearsay notice must give notice: s 67.

Background: The case

The case involved ASIC’s allegations against Money3 Loans Pty Ltd for breaches of responsible lending obligations. ASIC claimed that Money3 failed to make reasonable inquiries and verifications and failed to assess the suitability of credit contracts with consumers, leading to financial hardship for the consumers.

ASIC served a hearsay notice part-way through proceedings for a witness who it said was unavailable. ASIC had made extensive efforts to communicate with the witness with varying success. Where there had been contact, the witness had confirmed her knowledge of the subpoena requiring her attendance at court. For the most part, the witness was unresponsive.

By the time of the hearing, ASIC officers had been to exhausting efforts to contact the witness and secure her attendance, including phone calls, emails, text messages and physically being at her address on multiple occasions.¹ The witness was either non-responsive, or gave clear indications of attempting to avoid the court hearing. But, ASIC at no point sought a warrant for the witness’ arrest.

Ruling

McElwaine J ruled that ASIC had not taken all reasonable steps to secure the witness’ attendance, and therefore the witness was not ‘unavailable’ (see, esp, [27]-[33]).

In his judgment, his Honour expressed concern that a warrant had not been sought for the witness, and ASIC had not provided an explanation for why not such application had been made (at [17]).

On the issue of unavailability, McElwaine J observed:

• Other cases of unavailable witness applications may be of assistance, but ultimately each case turns on its facts (at [18]).
• A witness can be ‘unavailable’ where their attendance has been compelled by the court but the witness nonetheless refuses to give evidence (at [18]-[19], citing especially R v Darmody (2010) 25 VR 209).
• The mere service of a subpoena upon a witness who has demonstrated an unwillingness to cooperate is unlikely to amount to ‘all reasonable steps’, although it is a relevant factor (at [25]).
• Kunc J in Huang v Wei [2022] NSWSC 222 provided, from [41], a helpful list of factors that would be considered in assessing whether a witness is unavailable, being:
  • The nature of the case
  • The importance of the evidence
  • The inquiries that have been made, and their outcomes
  • Who the party is that is making the inquiries and about whom the inquiries are being made
  • The likelihood of any specific step yielding useful information
  • The cost and delay that a particular step might cause
  • In civil proceedings, is the obligation of all parties to give effect to the overarching purpose 

At [21]-[23] of his judgment, McElwaine J applied the seven considerations in Huang to the present case. He noted it was a civil case where ASIC was seeking severe consequences. This witness’ evidence was ‘central’ to the case. There had been extensive efforts to secure her attendance, but ASIC had not explained its failure to seek a warrant, which was a specific step that may have secured the witness.

McElwaine J also expressed disapproval that ASIC had known for an extended time about the witness issue but had not told the respondent until the last moment (at [23]). He considered this inconsistent with the overarching purpose applicable in civil proceedings.

Take-aways

Even in the face of extensive investigator efforts to secure a witness’ attendance, a court may still rule that the witness was ‘available’ for trial, and exclude the hearsay evidence of that witness.

Each case will turn on its facts, but the party seeking to adduce the hearsay evidence will need to provide good reason for why any step that might have secured the witness’ attendance was not taken. The onus of establishing what steps are ‘reasonable’ lays squarely with the party seeking to adduce the evidence.

Postscript:- On 21 May 2025, ASIC announced it had sought special leave from the High Court regarding this judgment.

1. ASIC’s extensive efforts with the witness are set out at [4]-[15] of the judgment. ↩︎