It's unusual because there were a couple of statements to that...

It's unusual because there were a couple of statements to that effect from both sides of the Bar table, yesterday and what I saw of today. I suspect they're keeping the powder dry to see how the evidence plays out and how well their other witnesses (who have provided affidavits previously) perform in cross-examination when giving evidence in the 1st Defendant's case. Obviously, there's quite a bit of overlap though in the cases against both Defendants and the same solicitors and Counsel are appearing in the interests of both.

If the 2nd Defendant is going to go into print, it should have been served on the other party by now. There are notice provisions under the Evidence Act. If an attempt to do that does occur, ASIC will fight tooth and nail to exclude it simply on the basis that the statement provider (or deponent as the case may be, but I doubt it will be in affidavit form, thereby reducing its chances of admissibility even further) is unavailable for cross-examination and it would be unfairly prejudicial. Otherwise, you have an untenable situation where statements are simply going in and unable to be unchallenged on the representations made therein. The weight you could give to something like that (even if admitted - albeit highly unlikely it would be) in a case like this, would be minimal.