Australian Securities and Investments Commission v Rich
[2005] NSWCA 152
•20 May 2005
Reported Decision:
54 ACSR 326
(2005) 23 ACLC 1111
Court of Appeal
CITATION: AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION v John David RICH & Ors [2005] NSWCA 152
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 13, 14 April 2005
JUDGMENT DATE:
20 May 2005JUDGMENT OF: Spigelman CJ at 1; Giles JA at 181; Ipp JA at 182
DECISION: 1 Leave to appeal granted; 2 Direct the Appellant to file a Notice of Appeal within 7 days; 3 Appeal allowed; 4 Set aside Austin J's ruling that the Carter Report is inadmissible or should be excluded; 5 Opponents/Respondents to pay Claimants/Appellant's costs of the Appeal; 6 Remit the issue of costs at first instance to Austin J
CATCHWORDS: EVIDENCE - Expert Evidence - Admissibility - s76 and s79 Evidence Act 1995 - Where expert first formed opinions based on information not disclosed in report - Whether sufficient for admissibility that expert report discloses facts and reasons asserted as basis for the opinion - EVIDENCE - Judicial Discretion to admit or exclude Evidence - s135 Evidence Act 1995 - Where trial judge did not analyse probative value of evidence - Whether fundamental error - EVIDENCE - Judicial Discretion to admit or exclude Evidence - s135 Evidence Act 1995 - Expert report - Weight to be given to fact that facts and reasons asserted as basis for the opinion were not the basis upon which the opinions were first formed
LEGISLATION CITED: Australian Securities and Investments Commission Act 2001 (Cth): ss 19, 68.
Corporations Act 2001 (Cth): s 180.
Evidence Act 1995: ss 76, 79, 135.CASES CITED: Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313
Bell v F S & U Industrial Benefit Society Ltd (Unreported, Supreme Court of New South Wales, McLelland J, 9 September 1987)
Clough v Tameside and Glossop Health Authority [1998] 1 WLR 1478
Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34
Elliott v Ivey (Unreported, Supreme Court of New South Wales, Sperling J, 23 April 1998)
HG v The Queen (1999) 197 CLR 414
Holtman v Sampson [1985] 2 Qd R 472
Lewis v The Queen (1987) 88 FLR 104
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The 'Ikarian Reefer') [1993] 2 Lloyds Rep 68
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
R v Fowler (1985) 39 SASR 440
R v Gilfoyle [2001] 2 Cr App R 57
R v Turner [1975] QB 834
Ramsay v Watson (1961) 108 CLR 642
Steffen v Ruban (1966) 84 WN (Pt 1) NSW 264; [1966] 2 NSWR 622
Trade Practices Commission v Arnotts Ltd (No 5) (1990) 21 FCR 324PARTIES: Australian Securities and Investments Commission (Claimant)
John David Rich (First Opponent)
Mark Alan Silbermann (Second Opponent)FILE NUMBER(S): CA 40193/05
COUNSEL: R Macfarlan QC, P Durack and N Beaumont (Claimant)
D Williams SC, M Steele and S Goodman (Opponents)SOLICITORS: Georgina Hayden, Solicitor for Australian Securities and Investments Commission (Claimant)
Joanne Kelly (Opponents)
LOWER COURT JURISDICTION: Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S): 5934/2001
LOWER COURT JUDICIAL OFFICER: Austin J
- 3 -
40193/05
Friday 20 May 2005SPIGELMAN CJ
GILES JA
IPP JAAUSTRALIAN SECURITIES & INVESTMENTS COMMISSION v John David RICH & Ors
The Australian Securities and Investment Commission (“ASIC”) instituted proceedings in the Court seeking declarations of contravention of s180 of the Corporations Act 2001 (Cth) which requires directors and other officers of a corporation to act with a reasonable degree of care and diligence. It also sought orders prohibiting the defendants from managing corporations and an order that they pay compensation in an amount which ASIC asserts is approximately $92 million.
During the course of the trial, the trial judge, Austin J, found a report containing expert accounting and financial evidence given by Mr Carter (the “Carter Report”) to be inadmissible or, alternatively, should be rejected in the exercise of discretion. The Carter Report was concerned to identify the true financial position of the One.Tel group of companies at relevant times, to identify information which ought to have been supplied to directors, and to quantify the compensation which ASIC sought the defendants to pay.
The trial judge found that Mr Carter, and other persons who worked for him, were closely involved in the process of investigation of the circumstances which eventually led to the proceedings. They were also involved in the determination of what proceedings would be brought. During this period Mr Carter became privy to a substantial body of information. Subsequently a decision was taken that he would become the expert to give opinion evidence in the proceedings. Thereafter he played no further role in the preparation of the case, although others who had worked with him until that time continued to play such a role, as well as assisting him in the preparation of his Report.
Draft documents were brought into existence covering the subject matter of what became the Carter Report. These drafts were based on a broad range of information. Many of the opinions that Mr Carter was called upon to express in the final Carter Report had also been expressed at an earlier stage, when he was able to and did draw on the full body of information that had been accumulated or generated for purposes of the investigation and the proceedings. At a certain point, however, Mr Carter was asked to exclude much of this material from the information base upon which he would give evidence in the case itself. Accordingly, he was required to go through a process of redetermining the opinions on the basis of a narrower range of information, primarily business records of One.Tel.
Mr Carter was subject to lengthy cross-examination on the voir dire with respect to four specific matters in his Report, which were said by the Respondent to be illustrative. One of these areas related to an unsourced assertion, and the other three related to whether Mr Carter was entitled to assume that particular documents, whose meaning was not clear on their face, were what he said they were. Previous drafts of the Report attributed these matters to material that was excluded. His Honour found that, in the absence of further evidence from Mr Carter, the defendants had demonstrated that the opinions expressed in the four areas were based on material that was not disclosed.
The defendants challenged the admissibility of the Carter Report on the basis that Mr Carter’s opinions were originally formed by reference to information he was later instructed to exclude from consideration, and that the Report therefore did not disclose the real factual basis and true reasoning process of the opinions it expressed. The trial judge accepted this submission and ruled that, accordingly, the Carter Report did not fall within the s79 expert evidence exception to the s76 opinion rule contained in the Evidence Act 1995.
In the alternative, the trial judge found that the risk that Mr Carter had taken into account information upon which his opinions were not said to be based was sufficiently high so as create a danger that the evidence might be unfairly prejudicial to the defendants, misleading and confusing, or result in undue waste of time. His Honour found that each of these dangers outweighed the probative value of the Carter Report, and exercised his discretion pursuant to s135 of the Evidence Act 1995 to exclude the Report as a whole.
(a) To be admissible under s79 of the Evidence Act, it is not necessary that expert evidence disclose the true factual basis upon which it was first formed. Expert evidence is admissible if it discloses the facts and reasoning process that the expert asserts justify the opinions expressed. [135]
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 explained. HG v The Queen (1999) 197 CLR 414 followed. Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34; R v Gilfoyle [2001] 2 Cr App R 57 at 67; Ramsay v Watson (1961) 108 CLR 642; Steffen v Ruban (1966) 84 WN (Pt 1) NSW 264; [1966] 2 NSWR 622; R v Turner [1975] QB 834; R v Fowler (1985) 39 SASR 440; Holtman v Sampson [1985] 2 Qd R 472; Bell v F S & U Industrial Benefit Society Ltd (Unreported, Supreme Court of New South Wales, McLelland J, 9 September 1987); Lewis v The Queen (1987) 88 FLR 104; Trade Practices Commission v Arnotts Ltd (No 5) (1990) 21 FCR 324; Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313; National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The 'Ikarian Reefer' ) [1993] 2 Lloyds Rep 68; Clough v Tameside and Glossop Health Authority [1998] 1 WLR 1478; Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370; Pollock v Wellington (1996) 15 WAR 1 considered.
(b) The finding of the trial judge that the Carter Report set out the facts asserted by Mr Carter to support his opinion, by a process of reasoning also set out in the Report, should have lead to the conclusion that the Report was admissible. [136]
(b) The trial judge did not conduct an analysis of the probative value of the opinions expressed in the Report. Rather, his Honour proceeded on the basis that because of the risk that the use of extraneous material was pervasive, and that this was sufficient to limit the Report’s probative value. [161], [165](a) The balancing exercise required in the exercise of s135 discretion requires the Court to evaluate the probative value of the Carter Report. [164]
(c) The trial judge’s failure to conduct any systematic analysis of the Report’s probative value was a fundamental error, such as to require the Court to intervene. [163]
(d) The history of the manner in which Mr Carter formed his opinions is a relevant consideration going to weight. However, the degree to which it affects the weight of an opinion must depend on the force of the evidence which the expert has given to the effect that, by applying a certain process of reasoning to certain specific facts, a particular conclusion should be drawn. This requires an assessment of the strength of the asserted opinions. [167]–[169]
(e) His Honour erred in proceeding on the assumption that access to excluded material would itself be of major, indeed, determinative significance in assessing the probative value of Mr Carter’s evidence. [170]
Elliott v Ivey (Unreported, Supreme Court of New South Wales, Sperling J, 23 April 1998) considered.
(g) Generally, Mr Carter could not give evidence about what documents were, only about what documents mean. Where the nature of a document is not proven, the opinion based upon it is entitled to very little, if any, weight. [51], [153]–[155](f) Where the documents speak for themselves, or their meaning and significance is established by other evidence, the historical use of excluded material may be of little, if any, significance. Where such appears to be the case, unfair prejudice, confusion and waste of time can, and should, be minimised by refusing to allow extensive cross-examination. [179]
1 Leave to appeal granted.
2 Direct the Appellant to file a Notice of Appeal within 7 days.
3 Appeal allowed.
4 Set aside Austin J’s ruling that the Carter Report is inadmissible or should be excluded.
5 Opponents/Respondents to pay Claimants/Appellant’s costs of the Appeal.
6 Remit the issue of costs at first instance to Austin J.
40193/05
Friday 20 May 2005SPIGELMAN CJ
GILES JA
IPP JA
1 SPIGELMAN CJ: The Australian Securities and Investment Commission (“ASIC”) has instituted proceedings in the Court seeking declarations of contravention of s180 of the Corporations Act 2001 (Cth) which requires directors and other officers of a corporation to act with a reasonable degree of care and diligence. It seeks orders prohibiting the defendants Mr Rich, who was one of the joint managing directors of One.Tel Limited, and Mr Silbermann, who was the finance director of that company, from managing corporations. It also seeks an order that they pay compensation in an amount which ASIC asserts is approximately $92 million.
2 The case has been proceeding for some months before Justice Austin, and his Honour has been called upon to make a number of interlocutory rulings. Before this Court is an application for leave to appeal and an appeal (if leave is granted) against a judgment which his Honour delivered on 7 March 2005 holding that certain expert accounting and financial evidence (“the Carter Report”) was inadmissible as a whole or, in the alternative, should be excluded as a whole pursuant to s135 of the Evidence Act 1995. The Carter Report was concerned to identify the true financial position of the One.Tel group of companies (“the Group”) at relevant times, to identify information which ought to have been supplied to directors and to quantify the compensation which ASIC seeks the Respondents to pay.
3 As will appear, the issues raised are of considerable significance for the proceedings and involve questions of law that this Court should determine. Leave to appeal should be granted to ASIC (“the Appellant”).
4 Mr Carter is a partner of PricewaterhouseCoopers (“PwC”). The Carter Report was dated 31 May 2002. His Honour dealt with the admissibility of the Carter Report as a whole. His Honour indicated that, if it had been admitted, it would have been necessary to undertake a detailed review of objections to particular parts of the Report on a “paragraph by paragraph” basis. In the event his Honour did not need to undertake that task.
5 The Carter Report comprised 402 paragraphs on 155 pages, together with 15 appendices and 12 volumes of supporting documentation. It dealt with the Group’s financial position under the headings Cash and Creditors, Debtors, and Earnings. It identified the cash deficiency of the Group, the reasons for the Group’s financial position, the nature of management reporting to the Board, and the reduction in net worth of the Group between 28 February 2001 and the appointment of administrators on 29 May 2001, the last matter being relevant to the quantification of the compensation claim.
6 His Honour outlined the general nature of the Carter Report and ASIC’s reliance upon it in the following passage:
“[42] … ASIC wishes to make out, in very considerable detail, a case which compares the financial position of the company and the Group, as presented by One.Tel management including the defendants to the One.Tel board, with the true financial position, month by month during the January-May period – with particular emphasis on earnings, cashflow, overdue creditors and debtors/billings. If admissible, Mr Carter’s evidence as the actual financial position of the company and the Group, dealing in detail with these matters, would be a very important part of ASIC’s case. ASIC wishes to rely not only on Mr Carter’s overall opinions as to the financial position at specified points, but also on various intermediate stages in his reasoning, in which he asserts specific and detailed propositions about the company’s position at particular times, which are not merely extracts from or summaries of the documents to which he had regard, but are purportedly based on calculations and inferences made by him. ASIC wishes to say that, because the documents upon which Mr Carter bases his views were available to the defendants, they knew or had the means of knowing, and ought to have known, the true position.
[43] Other components of the case relate to whether, in various ways, the board of directors was provided with sufficient information during the relevant period, and whether adequate systems were in place to produce the information needed to make proper assessments. Mr Carter expresses opinions about these matters, and once again there is a large body of intermediate reasoning in which he asserts specific and detailed propositions, purportedly based on calculations and inferences from documents.”
7 With respect to the propositions of an intermediate kind his Honour also said:
“[53] The bulk of the Report is the presentation of Mr Carter’s analysis and reasoning proffered to support his answers to ASIC’s questions. As previously indicated, much of the reasoning involves the development of intermediate propositions of a very specific kind about aspects of the financial position at stated points. These propositions are ‘intermediate’ in the sense that they purport to provide a bridge, or more accurately a series of connecting bridges, between the documentary evidence and the ultimate conclusions expressed in answer to ASIC’s questions. The intermediate propositions often have the appearance of propositions of fact, but a full reading of the Report (including footnotes) shows that those propositions purport to be derived from the documents, through processes of reasoning, such as by inference or through calculations.”
8 I will set out below his Honour’s findings of primary fact which are of significance for the issues which arise on appeal. These issues relate primarily to the circumstance that Mr Carter, and other persons from PwC who worked with him, were closely involved in the process of investigation of the circumstances which eventually led to these proceedings. They were also involved in the determination of what proceedings would be brought. During this period Mr Carter became privy to a substantial body of information. Subsequently a decision was taken that he would become the expert to give opinion evidence in the proceedings. Thereafter he played no further role in the preparation of the case, although others who had worked with him until that time continued to play such a role, as well as assisting him in the preparation of his Report.
9 Draft documents were brought into existence covering the subject matter of what became the Carter Report. These drafts were based on a broad range of information including examinations pursuant to s19 of the Australian Securities and Investments Commission Act 2001 (Cth) of persons associated with One.Tel and various statements taken from employees of One.Tel. Many of the opinions that Mr Carter was called upon to express in the final Carter Report had also been expressed at an earlier stage, when he was able to and did draw on the full body of information that had been accumulated or generated for purposes of the investigation and the proceedings.
10 At a certain point, however, Mr Carter was asked to exclude much of this material from the information base upon which he would give evidence in the case itself. Accordingly, he was required to go through a process of redetermining the opinions, including the intermediate propositions identified by Austin J to which I have referred above, on the basis of a narrower range of information, primarily business records of One.Tel. Whether he had, or indeed was able to, put out of his mind the broad range of information that he had once had available to him, on the basis of which he had originally formed the opinions which he ultimately expressed, was the central consideration in the issues that fell to be determined by Austin J. His Honour’s findings in this respect were the basis of his rejection of the Carter Report.
Mr Carter’s Access to Information
11 His Honour’s findings of fact about Mr Carter’s access to information and the use to which he put it refer to a number of persons who should be identified:
Ashley, Elizabeth – Former One.Tel billing analyst.
Basman, Mark – Former One.Tel Collections and Credit Manager.
Croft, Stephanie – ASIC accountant; author of a report regarding One.Tel provided to Mr Carter on about 19 October 2001.
Greaves, John – Former Chairman of directors of One.Tel.
Green, Martin – Publishing and Broadcasting Ltd (“PBL”) employee.
Hall, Chris – PwC staff member.
Holmes, Timothy – Former One.Tel Group Financial Controller.
Joukhadar, Emily – Former One.Tel employee.
Keeling, Bradley – Former One.Tel joint managing director.
Miller, Darren – PBL employee.
Nassif, Natasha – Former One.Tel management accountant.
Packer, James – Former One.Tel non-executive director.
Randall, Samantha – Former One.Tel Treasury Manager.
Redfern, Jan – ASIC Deputy Director of Enforcement and solicitor on the record.
Reynolds, Cassandra – Senior employee of PwC, working with Mr Carter.
Rock, Gennessee – PwC staff member.
Thomas, Nicola – Former One.Tel Accounts Payable manager for Australian operations.
Werner, Christian – Former One.Tel Financial Controller for European Operations.Walford, Julie – PwC staff member.
12 The relevant chronology of events can be summarised from his Honour’s findings. (Paragraph references are to his Honour’s judgment):
31.5.01 - PwC (Mr Carter supervising) was retained by ASIC to provide “investigative assistance” in connection with the execution of search warrants. [62]-[63]
19.10.01 - At least six folders of documents were provided to Mr Carter for review, including a copy of a document called the “Consolidation Report” dated 3 October 2001 which summarised the results of the investigation to that time (including expressions of opinion, statements of concern and commentaries on evidence); together with substantial attachments, including s19 examination transcripts of Mr Packer, Mr Kleeman, Mr Rich and Mr Keeling, and draft statements of former finance staff of One.Tel including Mr Holmes, Ms Randall, Ms Thomas, Ms Nassif and Ms Ashley, and reports prepared by Mr Kleeman and by Ms Croft. [74]
19.10.01-21.11.01 - During this period:
(a) Mr Carter and his team were extensively involved in the investigation process because of their forensic accounting work [69];
(b) Mr Carter and his staff (Ms Reynolds, Mr Hall and Ms Rock) were substantially treated as an integral part of the ASIC investigation team, with a room allocated to them at ASIC’s offices which they attended frequently [75];
(c) Mr Carter and his staff met daily and were permitted to select documents they thought relevant from the electronic and hard copy documents that ASIC had, including documents received from One.Tel, PBL and News Ltd, s19 examinations, witness statements and draft witness statements prepared by ASIC [75];
(d) Mr Carter attended a number of conferences with ASIC’s solicitors and Counsel and was provided with advices of Counsel which he read. He also participated in discussions with ASIC and Counsel about the relevant issues in bringing proceedings and the type of approach that might be taken in civil penalty proceedings against directors [77];
(e) Mr Carter and other members of the PwC team were involved in planning-sessions as to who would be the subject of s19 examinations, and Mr Carter and Ms Reynolds helped formulate the questions to be put in those examinations [84];
(f) members of the PwC team spoke with former employees of One.Tel including Mr Holmes [86];
(g) Mr Carter and his staff discussed with each other what had happened at the s19 examinations and the interviews that they had attended [86]. His Honour held that reliance on s19 examinations was “specially significant” because answers made under a claim to privilege would not be admissible under s68 of the Australian Securities and Investments Commission Act 2001 (Cth) [92];
(h) there was an interplay between examining documents and obtaining explanations from former One.Tel staff about the meaning of documents, their context and their internal use at One.Tel, either in interviews or s19 examinations [87]; and
(i) Mr Carter (125.5 hours) and his staff (Ms Reynolds (240.5 hours) and others) were occupied for just over a month in an extensive review of the information that had been made available to them by ASIC [88]; and
(j) Mr Carter had a substantial [87] and deep [92] degree of involvement in the ASIC investigation, and access to information about ASIC’s evolving ideas as well as access to documents, interviews and examinations relevant to the investigations. [92]
24.10.01 - Mr Carter met with Mr Pembroke SC, Ms Redfern and other ASIC personnel. There was a discussion at the meeting about the nature of the case that ASIC would pursue, which of two ways the case should be put (the approach adopted being the one said to be favoured by Mr Carter, as well as Mr Pembroke SC and Ms Rees), and the work to be undertaken by PwC to assist in bringing such a proceeding. Mr Carter’s view was that PwC had been engaged following the meeting to assist ASIC in its deliberations whether or not to proceed with the civil penalty proceedings. [78]
29.10.01 - Meeting between PwC and ASIC at which PwC was given a number of tasks and in relation to which Mr Carter and Ms Reynolds prepared a checklist of issues. The checklist (which Mr Carter agreed accurately reflected what PwC was doing at that time) began:
“The key forensic accounting issues relating to the One.Tel investigation are set out below. We wish to gather as much evidence as possible in relation to these and especially Messrs Rich and Keeling’s knowledge and the timing of that knowledge.” [79]
31.10.01 - Advice of Mr Pembroke SC describing causes of action and evidence that PwC should gather. Mr Carter read this and agreed in cross-examination that it may have influenced his approach as to the collection of evidence on which he had been asked to express opinions. [81]
31.10.01 - Meeting between ASIC, PwC and Counsel to ensure that PwC was “on track” with what ASIC needed done; followed by ASIC letter to PwC setting out the questions to be addressed by PwC. [80]
5.11.01 - A draft report of Mr Carter was circulated to ASIC, and Mr Carter gave a PowerPoint presentation to ASIC officers and to Counsel. Mr Pembroke SC asked Mr Carter to identify, inter alia, whether there was an obvious connection between negligence of the directors, the consequences that may flow to the company, and what happened to debtors. [82]
5.11.01 - Ms Reynolds attended the s19 examination for Mr Keeling. [84]
7.11.01 - Ms Reynolds attended the s19 examination of Mr Rich. [84]
9.11.01 - Ms Reynolds attended the s19 examination of Mr Kleeman. [84]
12.11.01 - Ms Reynolds attended the s19 examination of Mr Green. [84]
15.11.01 - Mr Carter made a further PowerPoint presentation to ASIC and Counsel. Ms Reynolds attended. [83]
15.11.01 - Mr Carter attended the s19 examination of Mr Miller. [84]
15.11.01 - Ms Rock of PwC interviewed Ms Joukhadar formerly of One.Tel. [86]
20.11.01 - Mr Carter interviewed Mr Basman and was active in asking questions, including questions about the collection profile summary documents. Those documents were at least in some respects not self-explanatory. Topics covered included credit checks and credit limits of customers, the process by which One.Tel checked adherence to credit limits, the percentage of collection of debts more than 90 days old and Mr Basman’s belief as to the percentage of debtors that was collectable. There was a lot about the documents which Mr Carter could understand without talking to Mr Basman. [85] This is one of the topics considered below under the heading: “The Four Examples”.
The 21 November Report
13 On 21 November 2001 Mr Carter presented a Report to ASIC and Counsel with a PowerPoint presentation [89]. Ms Reynolds was also present [90]. The Report:
(i) stated the results of the forensic accounting work that PwC had been retained to perform in circumstances where Mr Carter knew that it would likely to be used by ASIC in deciding whether to bring a proceeding, the nature of any proceeding and the identity of defendants [93];
(ii) comprised 90 pages and dealt with matters including the utility and adequacy of information provided to the board, and the knowledge of each director regarding One.Tel’s financial position from time to time (particularly with respect to the timing and content of market announcements), and reached a number of conclusions including those set out at [94] ([93] and [94]);
(iii) included references to evidence not to be adduced in this proceeding, including transcripts of various s19 examinations [91];
(iv) noted that investigations were continuing and one area of further investigation was “refining findings in the light of further information arising from additional section 19 interviews with relevant parties” [91]; and
(v) dealt with subject matter substantially the same as the Carter Report over a fairly wide field (which did not include matters going to actual knowledge of the directors and quantification of damages) [95].
14 For the period after the delivery of the 21 November Report, his Honour made the following findings:
22.11.01 - Mr Carter attended the s19 examination of Mr Miller. [84]
29.11.01 - Ms Reynolds attended the s19 examination of Mr Greaves. [84]
3.12.01 – ASIC National Enforcement Co-ordination Committee (“NECC”) meeting at which a decision was made to commence the present proceeding. The meeting was attended by Mr Carter, Ms Reynolds and Counsel. Mr Carter expressed opinions at the meeting on substantially the same subject matter as was ultimately addressed in the 31 May 2002 Carter Report. Mr Carter also made a PowerPoint presentation entitled “Analysis of Damages” in which he made calculations based on an assumption that the non-executive directors had been misled. There was discussion about who should be joined as defendants [104], [106].
4.12.01-12.12.01 - Mr Carter and his staff assisted in the preparation of the Statement of Claim. Mr Carter participated in several conferences with ASIC’s Counsel (4, 5, 6, 7, 11 and 12 December 2001). [107]-[109]
12.12.01 - Proceeding No. 5934 of 2001 commenced. [110]
13.12.01-1.2.02 - During this period:
(a) Mr Carter continued to assist ASIC and his work contributed to the preparation of ASIC’s case. He and Ms Reynolds continued to use the office which ASIC provided to them until late December 2001. There was no restriction on the flow of information between Ms Reynolds and Mr Carter [110];
(b) PwC’s work included reviewing documentation, gathering further evidence (including interviewing various witnesses) and cross referencing all of the s19 examinations [111];
(c) Ms Reynolds had discussions with Mr Holmes about different accounts within the management accounts [111];
(d) Mr Carter and Ms Reynolds continued to have unrestricted access to, and used, information available to ASIC, and assisted ASIC to gather additional information [112].
15 At this point Mr Carter’s status was transmogrified to that of an expert witness. From 1 February 2002 Mr Carter’s role was confined to preparation of his expert’s report with the help from his assistants. [124] This was the date of the Letter of Engagement retaining Mr Carter for “preparation of a report providing independent expert opinions in relation to various matters relating to the activities and financial position of One.Tel, and the actions of certain of its directors”, and presentation of expert evidence to the Court in relation to those matters. [116]
16 His Honour found that Mr Carter’s staff continued to play a dual role. Those who assisted Mr Carter to draft his report (Ms Reynolds, Ms Rock, Ms Walford and other PwC personnel) were contemporaneously working for ASIC on other assignments in the preparation of the case and had close involvement with material they were later told to exclude. ([60], [127], [173](c) 6th dot point.)
17 In particular, Ms Reynolds’ assistance to ASIC in the preparation of its case was extensive. [129] Ms Reynolds gave evidence that on 22 February 2002 she was instructed by ASIC to keep her role separate from Mr Carter and not discuss details of the work she was doing for ASIC with him. Mr Carter’s evidence was that a mutual constraint to that effect commenced to operate from the beginning of February. [127] Mr Carter gave evidence that, to the extent that information was gained from Ms Reynolds’ work, he did not believe it had any impact on the contents of his report. [128]
18 His Honour made a number of findings about the overlap in the roles in the period between 1 February 2002 and 9 April 2002:
(a) Mr Carter and his assistants continued to use the office that had been allocated to PwC at ASIC’s premises [137];
(b) Mr Carter had meetings with his staff who were assisting him to prepare the report including Ms Reynolds, Ms Rock and Ms Walford, although they were working on other assignments for ASIC as well [137];
(c) the involvement of Ms Reynolds, and to a lesser extent Ms Rock and Ms Walford, in the drafting of the report was extensive - they did the vast bulk of the initial drafting [125];
(d) Mr Carter recorded 35 hours and his assistants approximately 1,200 hours [125];
(e) Mr Carter had access to at least some of the material that Ms Reynolds and other members of the team had obtained in the course of their assignments for ASIC and which were kept among 43 volumes of working papers comprising, in an undifferentiated state, documents relating to Mr Carter’s reports and documents relating to other work being done by PwC personnel for ASIC [138];
(f) Ms Reynolds interviewed a number of former One.Tel finance staff, including Mr Holmes, Mr Werner and Ms Randall [129]. However, she did say that nothing Mr Holmes told her was of use [130];
(g) Ms Reynolds called Mr Holmes on occasions in order to ask him questions when she came across an issue she did not understand and spoke with him to obtain background information, such as general ledger information, and to discuss accounting issues in relation to the digital and fixed wire business [130];
(h) Ms Reynolds reviewed and commented upon draft affidavits of Mr Holmes, Ms Randall and Ms Ashley and of several major overseas creditors. She also reviewed United Kingdom documents and identified documents to be provided in a draft tender bundle in respect of the quantification of damages, prepared a table identifying what information each director had and what the significance of that information was, and reviewed the documents available to ASIC for relevance to the proceeding [131];
(i) Ms Reynolds discussed with Mr Carter information contained in the draft affidavits of some of One.Tel’s overseas creditors and Ms Ashley [137];
(j) Mr Carter was aware that Ms Reynolds was meeting with Mr Holmes and was interviewing Mr Werner [137];
(k) Mr Carter reviewed particular documents that he relied on for the purposes of his report with Ms Reynolds or other PwC personnel and could not remember what they told him about the documents [137]. He accepted that his assistants may have given him explanations of those documents that may have helped him but he added the qualification that he did not know that the explanations went beyond the face of the documents themselves [137];
(l) Mr Carter and his team had access to ASIC’s electronic and documentary material without restriction, except as to certain material relevant to a criminal investigation of Mr Silbermann in respect of a specific matter which did not lead to charges being laid [144]; and
(m) Ms Reynolds was assisted in her understanding of some of the documents by her discussions with former One.Tel staff [141].
19 His Honour’s findings about the penultimate draft of the Report were:
5.4.02 - A well-advanced draft report, numbering 141 pages and dated 4 April 2002, was sent to Mr Carter at home for review over the weekend. Like the final report, it contained four sections and appendices [143]. Appendix B listed the following sources of information: (1) Documents contained in the One.Tel directory of ASIC’s Litigation Support System (2) Hard copy documents provided to ASIC by various parties in response to orders to produce (3) Reports prepared by staff of ASIC with respect to One.Tel, in particular, reports prepared by Ms Stephanie Croft and Mr Peter Connor (4) Transcripts of interviews conducted pursuant to s19 of Australian Securities and Investments Commissions Act, 1989 (“ASIC Act”), and (5) documents recovered through computer forensic processes.
9.4.02 - Draft of the Carter Report. [143], [161], [167]. Appendix B was “to be completed”. [145]
10.4.02 - The first three sections of the draft report were sent to ASIC and its legal advisers for review. [143]
22.4.02 - The fourth section of the draft report was sent to ASIC for review. [143]
20 The basis on which Mr Carter had proceeded was then changed. His Honour found:
After the 9 April 2002 draft was delivered to ASIC Mr Carter was instructed by ASIC not to rely upon the contents of s19 examinations for the purposes of the report. [60],[159]-[160]
Mid May 2002 - Mr Carter was instructed by ASIC to place no reliance, for the purposes of the report, upon information in affidavits, witness statements or drafts of them. [60], [160] Until that time Mr Carter considered himself free to use all information available to himself and his assistants. [164]
21 His Honour found that the information to be disregarded included information :
(a) obtained personally by Mr Carter and Ms Reynolds during interviews and s19 examinations; ([173] (c), 1st dot point)
(b) directed to assisting Mr Carter and his team to understand the meaning of documents, the methodology underpinning them and the use made of them internally at One.Tel; ([173] (c), 2nd dot point)
(c) important to Mr Carter's general understanding of the financial position of One.Tel and information flow within it as well as the significance of particular documents. [103]
22 After ASIC’s instructions, the draft was revised to remove references to s19 examinations or information in affidavits, witness statements and drafts of them. Mr Carter "revisited" his opinions in the light of the instructions - the opinions expressed did not substantially change. However, the process of revision required, in one case, the removal of a portion of the Report because it was no longer possible for him to express the relevant opinion. [162], [163], [166]
23 Thereafter, the following occurred:
15.5.02-31.5.02 - During this period:
(a) Ms Reynolds was involved in the finalisation of the report; and
(b) there were daily team meetings between Mr Carter and his assistants. [176]
shortly before 31.5.02 – Appendix B was collated. [178]
31.5.02 – the date of the Carter Report, the subject of his Honour’s ruling. [3], [44]
The Four Examples
24 Mr Carter was subject to lengthy cross-examination on the voir dire with respect to four specific matters in his Report, which were said by the Respondent to be illustrative. Mr Carter did not have notice that he would be cross-examined on these particular matters of detail. After the conclusion of his evidence ASIC sought to read a further affidavit by Mr Carter explaining matters raised with respect to these matters. His Honour reserved on this application until his judgment. In the event His Honour held that he could determine the case without making any adverse findings with respect to the matters which Mr Carter sought to explain. Accordingly, his Honour did not admit the further evidence. His Honour said he did not rely on the four examples to reach his conclusion that Mr Carter must have had regard to excluded material. ([183] and [414])
25 His Honour said that without giving Mr Carter the opportunity to give further evidence, he would not “make findings as to the source of extraneous material” which, his Honour was able to conclude, he “must have taken into account”. [183] However, his Honour also said “… the four examples still need to be considered because they exhibit some features of the Report of general significance” [183]. The matters were of relevance to his Honour’s decision under s135 of the Evidence Act 1995.
26 The four examples were:
(i) Dates on which management accounts were finalised.
(ii) Shortfalls against budget.
(iv) Profile Summaries.(iii) Deferred payments lists.
27 As to (i) the Carter Report made an assertion at par 388(b) that management accounts for digital and fixed wire business units were not produced on a timely basis. The Report gives a number of examples in support of this proposition.
28 The Respondents’ attack on this assertion was stated by Austin J in the following terms:
“[190] … The defendants plead in their Defences that the management accounts in question were ‘drafts’ which were not ‘finalised’.”
29 His Honour noted that:
“[191] … [T]he facts concerning the alleged untimeliness of the management accounts are an important part of Mr Carter’s reasoning process, because they contribute to his opinion that the board was not provided with timely, accurate and reliable information on earnings.”
30 His Honour noted at [192] that par 388(b) of the Report did not articulate the source for the assertion that it makes. Mr Carter was cross-examined on the voir dire about what the source of this assertion might be. After a lengthy process, summarised at [193] of the judgment, Mr Carter was unable to do so.
31 The Respondents submitted that the true source for this inference was information gleaned from former One.Tel employees.
32 His Honour concluded:
“[196] … [O]n the evidence that is before me now, that the inference [that the true source was information gleaned from One.Tel employees] is made out, in the absence of further explanation by Mr Carter. The Report, as it stands without further supplementation, is defective because it does not identify the factual basis for paragraph 388(b) or the reasoning process by which a documentary source is provided for the statements in that paragraph. And it is significant, in terms of the exercise of discretion under s 135, that the defendants, in an effort to get to the bottom of what appeared to be a single, unexceptional statement of fact in the Report, engaged in a process of lengthy and detailed cross-examination over more than a day, and found it necessary to put before the court information (Mr Holmes' file note) which would not otherwise be evidence in the proceeding.” [Austin J’s emphasis.]
33 As to (ii), in section 3.3 of the Carter Report, Mr Carter identified a number of issues relating to the deterioration in the financial position of One.Tel in the period January to May 2001. His Honour said:
“[198] … There, Mr Carter expresses the opinion that lower than budgeted revenue for the digital and fixed wire business during 2001 resulted from ‘a significantly lower than budgeted ARPU [Average Revenue Per User] per month’ (para 242), and that a major cause of the deterioration in the gross margin percentage for the digital and fixed wire business ‘was the change in sales composition for the digital and fixed wire business where a greater proportion of revenue was derived from low margin, even negative margin, sales such as local calls, compared to higher margin products such as long distance and international calls (para 247).”
34 His Honour noted that these findings were “an integral part of the reasoning process for explaining why One.Tel did not perform in 2001 according to its business plan” ([199]). The assertions to which his Honour makes reference in [198] are referenced to a document which his Honour refers to as “comparison.xls”. The document is undated, its author is not identified expressly, and it has neither heading nor title. His Honour refers to the document as “a deeply mysterious document to the uninitiated” (at [201]).
35 His Honour summarised the defendants’ submissions that Mr Carter must have made assumptions in drawing the inferences that he did from the document in the following terms:
“[204] …Mr Carter must have assumed the following:
(a) notwithstanding its appearance, comparison.xls was a final document on which it was appropriate to place reliance, rather than incomplete draft;
(b) the figures in the document relate to the digital and fixed wire business unit;
(c) the column ‘May’ is May 2000 and the columns ‘Jan’ and ‘Feb’ are January and February 2001;
(d) the figures under the heading ‘Liz’ are actual figures for January and February 2001;
(e) the correct figures for actual ARPU for January and February 2001 are those appearing under the column ‘Liz’ on page 4 0056 rather than the different figures appearing under the same column heading on page 4 0055; and
(f) other figures in the document are irrelevant for the purposes of the opinions he has expressed.”
[I note, parenthetically, that these are all assumptions about what the document is, rather than what it means.]
36 As his Honour noted at [205], “The Report does not articulate any of these matters as assumptions, and does not offer any explanation or justification for relying on comparison.xls without having addressed these matters.” The Respondents submitted that the Court should infer that the assumptions were made in reliance on Ms Ashley’s affidavit, or from information supplied by Mr Holmes.
37 His Honour found at [206] that Mr Carter had not been able to explain why comparison.xls should be regarded as a final and authoritative document. Nor did his Honour consider that it was clear that the document was, as the Report asserted, “an analysis of the digital and fixed wire business units earnings”. Similarly, the Respondents questioned how Mr Carter determined that Ms Ashley was the author of the document, where the only indication was the word “Liz” in the text of the document. However, his Honour found at [207]:
“[207] … [I]t is not inconceivable that a reader of the document knew that Ms Ashley was the only potentially relevant person who might be called ‘Liz’ might have inferred from the document itself that she was its author.”
38 His Honour did not consider that he had been given a convincing explanation for Mr Carter’s treatment of the document as containing final figures (at [208]). However, his Honour noted that such knowledge could have come from a reading of Ms Ashley’s affidavit.
39 His Honour’s ultimate conclusions regarding the document called comparison.xls were:
“[211] It seems to me appropriate to conclude, from an examination of the evidence and the document itself, without further supplementation, that Mr Carter's reliance on its propositions stated in the Report involved the conscious or unconscious acceptance by Mr Carter of facts about the nature and status of the document, and perhaps its authorship, not self-evident in the document itself. It is more likely than not, subject to any further evidence that Mr Carter might have given if he had been permitted to do so, that the source of these unstated facts was the evidence of Ms Ashley or Mr Holmes, or Ms Reynolds' discussions with one or both of them. Once again, it is noteworthy that the process leading to these conclusions has been a very lengthy one, which has involved the defendants running the forensic risk of putting before the court on the voir dire affidavit material from Ms Ashley which would otherwise [not?] (sic) be evidence in the proceeding.” [Emphasis added.]
40 As to (iii), the Carter Report made use of “deferred payments listings”, said to be documents in which Ms Randall recorded the company’s creditors that she had been instructed to exclude from her cash flow forecasts (see [212]).
41 His Honour described the conclusions that Mr Carter drew from these documents:
“[213] Mr Carter expressed the opinion in his Report that there was within One.Tel ‘a systematic process of managing cash and creditors’ (para 127), which resulted in an ‘end of month [cash] balance that [had] been artificially maintained by deferring payments to creditors’ (para 130). He saw Ms Randall's deferred payments listings as an ‘indicator’ of this process (paras 140 and 141).
[214] The importance of the deferred payments listings is evident from ASIC's opening, summarised in section 2. Mr Carter agreed in cross-examination that the opinion he expressed in reliance on those documents was ‘a significant point’ on a ‘serious matter’ (T 2513.20-42).”
42 His Honour described the Respondents’ submissions regarding the assumptions they said Mr Carter made in the following terms:
“[217] … Mr Carter had implicitly assumed that:
(a) the deferred payments listings related to March and April 2001;
(b) the documents are not drafts;
(c) they record historical facts, as distinct from something someone was thinking about doing;
(d) they record payments that were actually ‘due and payable’, as distinct from payments which had been budgeted but had not fallen due, and invoices that were the subject of dispute; and
(e) they were prepared by someone who knew the facts, and was therefore likely to be reliable.”
[Again, these assumptions all relate to what the document is.]
43 The Respondents asserted that the true foundation for these assumptions was Ms Randall’s affidavit. His Honour agreed, concluding:
“[222] … Mr Carter's reliance on its propositions stated in the Report (absence further supplementation)` [sic] involved apparently unconscious acceptance by him of facts, as enumerated in paragraphs (c) to (e) above, not self-evident in the document itself. It is more likely than not, subject to any further evidence that Mr Carter might have given if he had been permitted to do so, that the source of these unstated facts was the evidence of Ms Randall or Ms Reynolds' discussions with her. Once again, it is noteworthy that the process leading to these conclusions has been a very lengthy one, although in this case it does not seem to have involved the defendants taking a forensic risk by putting before the court evidence it would not otherwise have adduced.” [Emphasis added.]
44 There was a further criticism of Mr Carter based on the fact that par [141] of his Report, which asserts that the “majority” of the “deferred” payments were not paid prior to the group being placed in administration, was not sourced (see [223]). However, his Honour found at [226] that this statement “was not completely lacking in foundation”. I should also note that ASIC does propose to call Mrs Randall as a witness.
45 As to (iv), Mr Carter found in his Report that there was “inadequate provisioning made for doubtful debts during 2000 - 2001” (at [227] of Austin J’s judgment). The documents which Mr Carter used to form this conclusion are of two kinds, namely “profile summaries” and “collection profile summaries”. Austin J said the following about these documents:
“[229] They appear ex facie to be analyses which classify unpaid debts according to how overdue that [sic] are (eg 30 days, 150 days, 300 days), and according to other matters such as whether a final demand has been made, whether there is a payment plan or promise of payments, whether the debtor is a slow player [sic, payer?], whether a judgment has been entered, and so on (although the categories are not uniform).”
46 His Honour described the Respondents’ attack on these assertions in the following terms:
“[231] … Mr Carter had made the following assumptions about the documents, which were not disclosed in the Report:
(a) that the summaries recorded the totality of the Australian trade debtors of One.Tel at the relevant dates; and
(b) that documents entitled ‘profile summaries’ were prepared on the same basis as, and were directly comparable to, documents entitled ‘collection profile summaries’.”
47 It emerged during cross-examination that there existed various versions of these documents, incorporating different sets of figures. Mr Carter was unable to explain this (see [234]). [I note that this controversy also centres on what the documents are.]
48 His Honour found at [236] that Mr Carter appeared to have made the assumptions that the Respondents asserted he had made.
49 His Honour noted (at [237]) the further criticism by the Respondents that the footnote for an assertion that one of the primary causes of the deteriorating position with respect to debtors was the failure to enforce call restrictions for defaulting customers does not appear to support this statement. His Honour concluded at [238] that it is a “plausible inference” to draw that the true basis for this view might have been things told to Mr Carter by Mr Basman.
50 I have indicated above, with respect to each of the four matters, that many assumptions said to have been made by Mr Carter turn on what a document is rather than on what it means. Mr Carter could not give evidence of that character other than normally unhelpful evidence of what a document purports to be on its face. Unless the Appellant establishes what a document is - whether by means of the inferences available from the tender of a business record, by evidence of a system, by evidence relating to a specific document or otherwise - then the factual basis of Mr Carter’s opinions will not be established and, accordingly, his opinions in relevant respects will be entitled to little, if any, weight.
51 This was not the task undertaken by Austin J. Nor do I suggest that it was a task appropriate to be undertaken on a voir dire. His Honour’s decision turned on admissibility or, alternatively, on discretionary exclusion.
Justice Austin’s Conclusions
52 His Honour held that Mr Carter was fully qualified to give evidence on the issues the subject of the Report. [389] His Honour rejected the suggestion that Mr Carter manifested bias of a character which could justify the rejection of the Report. His Honour held that the mere fact that he had been engaged in another capacity before becoming an expert witness would not justify rejection. [411]
53 It is of significance that his Honour found that the Carter Report did set out the statements, or assumptions, of fact on which the opinions purported to be based, together with the process of reasoning by which Mr Carter said he had reached the various opinions expressed in the Report.
54 This conclusion was expressed in a number of different ways by his Honour:
“[387] The Report discloses a process of reasoning in which inferences are directly or indirectly made from the primary documents, so as to produce the intermediate propositions. The reasoning process includes inferences as to the meaning and interpretation of documents and inferences as to the significance of documents. …”
55 The intermediate propositions, to which his Honour referred, are statements which his Honour had characterised as expert opinions ([385]-[386]) and which were steps along the way to answering the general questions posed for him by ASIC. He said, in this regard:
“[389] … By and large, it is a reasoned report, with propositions frequently supported by footnotes referring to documents or making explanatory comments. Inferences are explained, and the Report addresses matters within Mr Carter's field of specialised knowledge as delineated in his curriculum vitae. I can see no valid basis for a general objection to intermediate propositions simply on the ground that they are expressed as assertions of fact, since in my view the disclosed reasoning process exposes the matters of inference, and the court is presented with the means of properly categorising the propositions.”
and
“[402] My opinion is that, considered overall, the Carter Report presents a chain of reasoning leading to the ultimate opinions expressed in answer to ASIC's questions, and the steps in the reasoning process are related to Mr Carter's specialised knowledge as an accounting and financial expert (I put to one side the background and chronology in Part 2 of the Report). I agree with ASIC that, while it is up to management to make decisions from time to time as to provisions for doubtful debts, it is within the field of expertise of an accounting and financial expert to express his opinion, considering all relevant documentation, as to the adequacy of the provision for doubtful debts, along the way to forming a conclusion as to the financial health of the business enterprise. The same reasoning applies to the expression of opinions, from a financial point of view, as to management's dealings with creditors and arrangements for the deferral of payment of debts, and as to the adequacy of financial information provided by management to the board of directors.”
56 His Honour went on to explain the reference that he made in par [389] to “By and large”:
“[390] … Viewing the Report as a whole there is an element of judgment or inference in what is said, rather than pure observation/calculation. There are, however, some intermediate propositions in the Report which do not fall within the general description of the Report in the last paragraph.”
57 His Honour went on in par [391] to identify the particular “intermediate propositions”, which he said were not properly supported and indicated that, if he had not rejected the Report as a whole, he would have rejected these specific parts of it. These matters were identified as falling within the four examples on which detailed cross-examination occurred. He left open the possibility that other matters could be found inadmissible on the same basis.
58 The term “By and large” also appears in pars [409] and [410] in, I believe, the same sense:
“[409] The defendants submitted that Mr Carter's presentation of the intermediate propositions in the form of assertions of fact rather than as expressions of opinion led him to fail to disclose, or to disclose adequately, the factual basis and the reasoning process for his opinions. I do not agree that the formal structure of the Report or the presentation of intermediate opinions as if they were opinions of fact has led to any general failure to disclose the factual basis of the expert opinions. By and large, the nature of the intermediate propositions is adequately exposed by the place that they occupy in the reasoning process, and so the mischief that arises when an expert's report does not set out to distinguish between facts, assumptions and opinions and consequently fails to disclose adequately the factual basis and reasoning process, does not arise here.
59 His Honour concluded:
[410] In my opinion there is no general formal or structural flaw in the Report that would prevent the court, reading the Report as a whole, to identify the factual basis and general reasoning process, including the intermediate inferences, that have led to Mr Carter's concluding opinions in answer to ASIC's questions.”
60 His Honour’s general findings that led to the rejection of the Carter Report are that the Report:
(a) was completed after very substantial work by Mr Carter and his assistants over the period from October 2001 to May 2002 [176];
(b) included opinions on many matters that were substantially the same as opinions in the 21 November 2001 report [95]-[96], [173](c), 5th dot point), although a substantial component of the factual basis for the opinions expressed in the 21 November 2001 report was information later excluded from the Carter Report [101];
(c) took into account information not identified in Appendix B or elsewhere in the report, obtained by Mr Carter and his assistants in the course of other work for ASIC (alternatively, there was a substantial risk that this had occurred) [365], [378], [413]; and
(d) does not adequately identify the true factual basis for the opinions expressed, or the true reasoning process by which those opinions were formed. The use of excluded material was probably unconscious [378], [407], [412], [415] and [416].
61 There are paragraphs in his Honour’s judgment where he refers only to a failure to identify underlying facts and other paragraphs in which he refers to both underlying facts and the true reasoning process. However expressed, I do not understand his Honour to suggest there was any material distinction between the two elements in terms of his Honour’s conclusion that there was a failure to disclose.
62 The findings of primary fact which I have outlined above formed the basis of these conclusions. Some of the critical stepping-stones should be set out at greater length.
179 Insofar as his Honour assumed that the use of the excluded materials necessarily diminished the probative value of each of Mr Carter’s opinions, in my opinion, his Honour erred.
Orders
180 The orders I propose are:
1. Leave to appeal granted.
2. Direct the Appellant to file a Notice of Appeal within 7 days.
3. Appeal allowed.
4. Set aside Austin J’s ruling that the Carter Report is inadmissible or should be excluded.
6. Remit the issue of costs at first instance to Austin J.5. The Opponents/Respondents to pay the Claimant/Appellant’s costs of the Appeal.
181 GILES JA: I agree with Spigelman CJ.
182 IPP JA: I agree with Spigelman CJ.
23/05/2005 - Last line should read "that ASIC does propose to call Mrs Randall as a witness." Delete the word "not" before "propose to call" - Paragraph(s) [44]
215
10
3