Good summary.
I must admit, I didn't realise the extent of the Jacobs correspondence until now. Availability of Karantzis? Well, Borski KC foreshadowed a
Jones v Dunkel submission being made in closing addresses from the get-go in the event that he doesn't give evidence, so that base is covered. Mr Hart and Ms Worrell appear to be available and have sworn affidavits. As for the documentary evidence in the Court book, it appears it will largely go in unchallenged.
Fox v Percy may take on quite a bit of significance, ie., objective uncontested contemporaneous documents.
Here's a short passage from an earlier Supreme Court decision. It'll cut both ways, but the importance of the 2nd paragraph shouldn't be overlooked:
“... human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”
The factors referred to by his Honour require primary emphasis on the objective surrounding facts that are either undisputed or established by contemporaneous documents, and on the inherent probabilities and improbabilities: Fox v Percy (2003) 214 CLR 118 (Gleeson CJ, Gummow and Kirby JJ); Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 2218(Bell P, Leeming JA and Emmett AJA agreeing). In any commercial litigation, contemporaneous documents “generally furnish the most reliable source of evidence as to what occurred or, at the very least, provide a generally reliable reference point from which to assess the reliability of witness testimony”.
That said, each side gets a turn at opening, so it's not all one-way traffic. I'll be interested to hear the Defendants' opening and see how they cross-examine the ASIC witnesses.
