Australian Securities and Investments Commission v Channic Pty Ltd (No 3)
[2014] FCA 1349
•4 December 2014
FEDERAL COURT OF AUSTRALIA
Australian Securities and Investments Commission v Channic Pty Ltd (No 3) [2014] FCA 1349
Citation: Australian Securities and Investments Commission v Channic Pty Ltd (No 3) [2014] FCA 1349 Parties: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v CHANNIC PTY LTD (ACN 141 145 753), CASH BROKERS PTY LTD (ACN 144 652 951) and COLIN WILLIAM HULBERT File number(s): QUD 536 of 2013 Judge(s): GREENWOOD J Date of judgment: 4 December 2014 Catchwords: PRACTICE AND PROCEDURE – consideration of an application by the respondents at the trial of the proceeding for leave to rely upon an affidavit of Danyelle Lea Pye Date of hearing: 4 December 2014 Place: Cairns Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 11 Counsel for the Applicant: Mr R M Derrington QC with Mr S Seefeld Solicitor for the Respondents: Dr R Spence, Integrity Criminal Legal
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 536 of 2013
BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
ApplicantAND: CHANNIC PTY LTD (ACN 141 145 753)
First RespondentCASH BROKERS PTY LTD (ACN 144 652 951)
Second RespondentCOLIN WILLIAM HULBERT
Third Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
4 DECEMBER 2014
WHERE MADE:
CAIRNS
THE COURT ORDERS THAT:
1.The respondents’ application to rely on a further affidavit, being the affidavit of Ms Danyelle Lea Pye, is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 536 of 2013
BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
ApplicantAND: CHANNIC PTY LTD (ACN 141 145 753)
First RespondentCASH BROKERS PTY LTD (ACN 144 652 951)
Second RespondentCOLIN WILLIAM HULBERT
Third Respondent
JUDGE:
GREENWOOD J
DATE:
4 DECEMBER 2014
PLACE:
CAIRNS
EX TEMPORE REASONS FOR JUDGMENT
This is an application by the respondents to rely upon a further affidavit of Ms Danyelle Lea Pye. Ms Pye is a former loans manager, or former manager of the Cairns office of United Financial Services, which was then located in Cairns.
In her affidavit she talks about credit assistance provided by that company throughout at least New South Wales, Victoria, Tasmania and Queensland in the years 2009, 2010, 2011 and 2012, and she says that during her time as the Cairns office manager of United Financial Services, she provided credit assistance to many people in relation to an average of 50 loans per month.
She goes on to say that she was trained by her employer to use a methodology described as an “affordability calculator” when undertaking an assessment of an application for a loan which would be assisted by the calculator if the application were approved. She says that her employer throughout Australia used the affordability calculator in undertaking these activities.
Throughout the affidavit, Ms Pye then goes on to describe aspects of the features of the affordability calculator, and she also says that this affordability calculator was used in circumstances where she had not been informed by anyone within her employer organisation that there was, as she says, “anything wrong or illegal associated with using the affordability calculator”.
The point of the affidavit, at its next level, at least, is that she says at para 23 that “sometime in 2010, I provided Mr Colin Hulbert with a copy of the affordability indicator”. And she says that “sometime in 2010, I provided Mr Colin Hulbert with training in the use of the affordability indicator”.
The affidavit does not exhibit any documents in relation to the affordability indicator or the methodology underpinning it or its assumptions or circumstances of application, and thus the affidavit is really operating at a quite high level of abstraction.
The second thing to say about the affidavit is that it does reflect observations by the deponent about things she has been told by other people. The link mechanism in the affidavit is to demonstrate that this particular methodological document or calculator mechanism was provided to Mr Hulbert, but, as I say, the affidavit does not exhibit exactly what was provided to Mr Hulbert, and although the affidavit mentions training by Ms Pye to Mr Hulbert, there is no description of the nature of the training.
It is really simply all put at a very high level of abstraction. In addition to that, of course, the affidavit is late in the proceedings.
Perhaps more importantly, Mr Hulbert can give evidence of the basis upon which he applied a particular method of calculation in determining relevant questions in the proceeding, and, of course, if the position is that he applied an affordability calculator or indicator provided to him by Ms Pye or discussed by Ms Pye with him, he can speak to those matters, because those are matters which informed his own mind when taking whatever steps it is that he will give evidence of in relation to particular transactions.
The evidence that he might give of what he was told by Ms Pye is entirely admissible, as it goes to the state of mind of Mr Hulbert when he took the relevant steps, and such evidence would not be proffered on the footing that it is truth of the facts contained in what was said to him. It simply is an explanation of what was said to him for the purpose of his being able to say, “this was the methodological approach I adopted, and for me it had some force or substance to it”. Thus, he can give that evidence.
So, for present purposes, I refuse admission of this affidavit of Ms Pye into the proceedings.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 4 December 2014
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