Australian Securities and Investments Commission v Shafron & Ors; Shafron v Australian Securities and Investments Commission

[2011] HCATrans 129

[2011] HCATrans 129

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S29 of 2011

B e t w e e n -

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Applicant

and

PETER JAMES SHAFRON

Respondent

Office of the Registry
  Sydney  No S30 of 2011

B e t w e e n -

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Applicant

and

GREGORY JAMES TERRY

Respondent

Office of the Registry
  Sydney  No S31 of 2011

B e t w e e n -

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Applicant

and

MEREDITH HELLICAR

Respondent

Office of the Registry
  Sydney  No S32 of 2011

B e t w e e n -

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Applicant

and

MICHAEL ROBERT BROWN

Respondent

Office of the Registry
  Sydney  No S33 of 2011

B e t w e e n -

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Applicant

and

MICHAEL JOHN GILLFILLAN

Respondent

Office of the Registry
  Sydney  No S34 of 2011

B e t w e e n -

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Applicant

and

MARTIN KOFFEL

Respondent

Office of the Registry
  Sydney  No S35 of 2011

B e t w e e n -

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Applicant

and

GEOFFREY FREDERICK O’BRIEN

Respondent

Office of the Registry
  Sydney  No S36 of 2011

B e t w e e n -

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Applicant

and

PETER JOHN WILLCOX

Respondent

Office of the Registry
  Sydney  No S37 of 2011

B e t w e e n -

PETER JAMES SHAFRON

Applicant

and

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Respondent

Directions hearing

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MAY 2011, AT 2.20 PM

Copyright in the High Court of Australia

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, in matters S29/2011, S30/2011, S31/2011, S32/2011, S33/2011, S34/2011, S35/2011, S36/2011 I appear with MS S.E. PRITCHARD for the applicant and in matters S37/2011 and S41/2011 for the respondent.  (instructed by Clayton Utz Lawyers)

MR R.S. HOLLO:   If the Court pleases, in matters S31/2011, S32/2011, S33/2011 and S34/2011 I appear with MR R.J. HARDCASTLE for the respondents.  (instructed by Atanaskovic Hartnell)

MR R.P.L. LANCASTER, SC:   May it please the Court, in matter S29/2011 I appear with MR N.J. OWENS for the respondent and in matter S37/2011 for the applicant. (instructed by Middletons Lawyers)

MR R.G. McHUGH, SC:   May it please the Court, in  matter S30/2011 in appear with my learned friend, MR S.M. NIXON, for the respondent.  (instructed by Blake Dawson)

MR P.M. WOOD:   May it please the Court, in matter S35/2011 I appear with my learned friend, MR M.S. HENRY, for the respondent.  (instructed by Arnold Bloch Leibler)

MR T.M. JUCOVIC, QC:   May it please the Court, in matter S36/2011 I appear with MR R.C. SCRUBY for the respondent.  (instructed by Kemp Strang Lawyers)

HIS HONOUR:   Ladies and gentlemen, but for the withdrawal of Mr Bathurst due to a subsequent engagement I will take the appearances to be as they were.

I have had distributed to the parties a set of proposed directions which I propose to go through in a moment before inviting any submissions or comments from the parties.  I then, when we have dealt with that aspect of the matter, want to raise with the parties a couple of other aspects of how we deal with this matter when it comes to a hearing, but you will observe from the proposed directions that they take the form of:  1, providing for hearing together; 2, to provide for filing of a single appeal book for use in all of the proceedings; the 3 starts to get more complicated. 

Paragraph 3 is really to settle the content of the appeal book.  The intention is that it should be the appeal book as prepared for the Court of Appeal with three modifications; the inclusion of the two supplementary black books, the exclusion of the book called “Core bundle documents not admitted below”, at least on the face of things, subject to whatever the parties may tell me.  It seemed to me that we need not be troubled with what was not admitted below.  The other two qualifications are that to try somehow to reduce the volume of this I am going to suggest that they be printed High Court style, both sides of the sheet, and then bound in pairs of volumes as far as it is reasonably practicable to do that. 

That will mean that those preparing the appeal book will have to (a) show some common sense about which volumes are put together.  We do not want one volume of the black series bound with a volume of some other colour series and we do want them labelled in a way where in Court, on the run, we can use them.  So if somebody says, well, it was in black volume 7 at page whatever, an associate can put their hand on it and a Judge can have access to it without battling through piles of paper saying where are we.

The second part of the appeal book is really essentially the documents in this Court plus the judgment below.  The judgment below you will see in the proposed directions, if we can do it by reference to a report of the judgment assuming that the report is a full report of the judgment, not an edited report – that is not going to be of much use to us – then let us have the reported judgment in the appeal book.  It just makes it so much easier when you come to write a set of reasons that you have the report in front of you and if you are making a reference, your footnote can be prepared without working off double handling documents.  Ideally, the authorised report – ideals are sometimes not always achievable – next best seemed to me to be the ALR.  No doubt the company series have picked it up, but I think ALR may be the next best thing.

The directions also provide – perhaps unnecessarily, I am not quite sure yet – for the reasons of the court that was most recently published.  I will be glad if parties would specifically turn their mind to whether we do in fact need that in the appeal book.  It occurred to me that we might, so it is on the list for consideration.  Paragraph 4 of the proposed directions, I thank the parties for delivering me the 35 volumes that they did.  They provided endless hours of amusement over the luncheon adjournment, but whoever delivered them may have the privilege of uplifting them from the Registry this afternoon.  It would be, I am assured, entirely convenient to the Registry.

Then timetabling.  I have put in dates there.  I suspect someone will want to start a Dutch auction about the dates.  Yes, I will hear what people have to say, but the program is appeal book first, then submissions.  The reason for that is that I hope should cut out that second round of submissions where you put in the annotated submissions, annotated, that is, by reference to the appeal book.  So the objective is appeal book first, subs in at a time when those who are preparing the subs can annotate them by reference to the appeal book.  Then a timetable that is a little more extended than the practice note would ordinarily require, but not greatly so, essentially to see things finished by 22 July.  Paragraphs 8 and 9 speak for themselves.

Now, although there is not any reference in that draft set of directions to this, I would, as at present advised, propose that we hold one other directions hearing, most likely at 2.15 on the day before the case is fixed for hearing, at which we can just tick off that we are agreed on order of batting, divisions of time, pick up any trailing edge that needs to be picked up.  It may be that that directions hearing will prove to be very short, but I assume that by 2.15 on the day before the parties either will be or can be in Canberra and it just might be useful to have that last minute pickup and make sure that we are set to roll it through without hiccups on day one of the hearing of the appeal.

Now, there are some other matters I want to raise, but let us stop at that point.  First, does any party desire to be heard about the proposed directions either as to content, in the sense of have I dealt with all of the things I should have dealt with, and then as to timetable?  Mr Solicitor.

MR GAGELER:   Your Honour, we are entirely content with your Honour’s proposed directions, subject to perhaps two suggestions of our own.  In direction 3, your Honour has referred to the 35 volumes of the appeal books in the Court of Appeal.  Six of those volumes were the orange volumes containing the written submissions before the Court of Appeal.  We think your Honours in the High Court will not need that six volumes.

HIS HONOUR:   Well, less is best undoubtedly, Mr Solicitor.

MR GAGELER:   Yes.  The only other suggestion we would make is for an additional order.  It comes about because in addition to the hard copies in the Court of Appeal, there were very many electronic documents and I am told that during the hearing in the Court of Appeal a number of those documents were referred to.  It is conceivable that some parties will want to refer to some of those documents in their submissions and so the additional order we would propose is on or before 5 August 2011 ASIC file and serve an additional appeal book containing any evidentiary documents referred to in the submissions of any party and not otherwise included within the appeal books already filed.

HIS HONOUR:   Yes, thank you.  Subject to that, nothing else to say?

MR GAGELER:   No.

HIS HONOUR:   Yes.  Now, there is evident force in the requirement for the additional documents and, I must say, less is best about orange submissions, but with those two ideas on the table, are there further or other submissions to be made?  Yes.

MR HOLLO:   My name is Hollo, your Honour.  I had appeared with Mr Bathurst.  The comment that I have, your Honour, is in relation to the length of the written submissions that is proposed by your Honour’s directions.

HIS HONOUR:   There is nothing proposed and the practice direction would ordinarily bite.  Where does the auction begin, Mr Hollo?

MR HOLLO:   Your Honour, we are concerned that given the nature of the appeals and the discussion this morning that 20 pages, which would be the effect of not making any annotation to these directions, will frankly be inappropriate given the fact that your Honours will be hearing a three‑day fact appeal.

HIS HONOUR:   Leave has gone, Mr Hollo.  Leave has gone, yes.

MR HOLLO:   I appreciate that, your Honour, but, your Honour, this is not part of an auction process, but just so that your Honour does understand the nature of the written material that was provided to the Court of Appeal, my side, the four parties for whom I appear as appellants, had 150 pages of written submissions essentially in‑chief, and – I will be corrected if I am wrong about this – 50 pages in reply and the Solicitor’s client had more or less the same, I think, 120 pages or 30 pages in terms of notices of contention, of which there were many.

My concern is really twofold, one being the flipside of the other.  The first is that your Honours will not be given any meaningful assistance in relation to the factual matters that will no doubt arise on the appeals.  It may suit the Solicitor and it may be that once we have seen his submissions and there are only 20 pages, that indeed we do not need much more and indeed the 20 pages will be sufficient.  I rather suspect not.  I rather suspect that we will be drawn into factual debates, particularly having regard to grounds 6 to 10 that were the subject of some debate this morning.

HIS HONOUR:   Mr Hollo, in one sense you are pushing at an open door.  I well understand that there is a real difficulty in this case about how to present what seems to be a large mass of evidence in a way that is useful.

MR HOLLO:   If I could just make the second proposition, your Honour, which is the flipside of the first.  I feel a heavy duty for my clients to be able to properly put their case and I would not wish to be bound by a 20 page limit.  In the event that Mr Gageler’s submissions are such that we can deal with it in 20 pages, then so be it.  So rather than starting a Dutch auction, it may be that one option that may be available to the Court would be to see the Solicitor’s submissions and for us to then be able to say, well, what is our attitude to them and can we fairly assist the Court.  That may not be attractive to my friend because it binds him to the 20 pages and us not, but at the moment my fundamental submission is this, that 20 pages for my clients will not do it.  Other than that, your Honour, we do not have any difficulties.

HIS HONOUR:   Do we exclude the orange books from your side of the record, do you think?

MR HOLLO:   That is perhaps one way of dealing with it.  We are really dealing with the factual landscape from a different perspective and I am not at the moment convinced that including the orange books will be a necessary or convenient method of overcoming the problems that I have alerted your Honour to.  It may be in part, but the factual landscape is now quite different.  Apart from that, your Honour, we do not have a difficulty with the directions that your Honour has proposed nor the further directions proposed by the Solicitor.  It may be that if the page limit question is opened up, then there may be a flow on effect in terms of time, but I would wish to reserve my position in that regard.  It is not my primary concern.

HIS HONOUR:   Yes.  Do other parties seek to be heard?

MR McHUGH:   Your Honour, principally to support what my friend, Mr Hollo, just said and to raise one additional way of dealing with it.

HIS HONOUR:   It is the solution I am after, Mr McHugh, more than anything. 

MR McHUGH:   The way in which –no doubt this Court will be very troubled by the idea of a number of parties in largely the same interest putting on submissions that covered the same ground, unnecessary duplication.

HIS HONOUR:   Will not be troubled at all, Mr McHugh, because it will not happen.

MR McHUGH:   Then the solution adopted in the Court of Appeal, which may or may not appeal to this Court, was to have one of the appellants, now the respondents, be the lead respondent and shoulder the burden and then the other respondents a couple of weeks later put on submissions that were relatively shorter.  Now, I just flag that as a possibility tying in with what Mr Hollo said, but if we are to be tied to the 20 pages and all of us are to put on notices of contention saying that having regard to the totality of the evidence being, even if the orange books are excluded, 29 volumes, there is a real concern about the 20 pages, your Honour.

HIS HONOUR:   Can I make some apparently general and not immediately connected points which affect the matters you have raised, Mr McHugh.  I do not want to have another directions hearing in this matter except the one before hearing because of the cost involved.  Assembling this number of parties is a very large and very expensive exercise.  I am therefore reluctant to leave undecided the path the preparation will take.  I am not immediately attracted to the notion of, well, ASIC puts on 20 and let us see how we go in response.  I think we have got to, in effect, bite the bullet now and work out how this case is going to be prepared.

The second point that I raise for your consideration, not just you, Mr McHugh, but all counsel, is that I have an instinctive reluctance to designate one party or set of parties as a lead party and others as subsidiary.  Behind every set of counsel there is clients and they regard themselves as the lead party in this case because they are the only ones they are concerned about.  So choosing between the parties from the Bench is something that I recoil from, at least as an immediate solution.  If the parties between them work out that they will divide the work in a particular way, that presents no difficulty, I think, but duplication cannot be allowed.  I am sorry, it just cannot be.  There will have to be talking between parties in generally the same interest about how they will divide it up.  I know that presents a huge burden for counsel and those instructing them.  I recognise that, but I think there is no choice but to do it that way. 

Now, I did not provide in the draft for expanded outlines because underpinning the problem is, I think, this.  I assume that those on the director’s side of the record can ultimately say, look, there are five, six, seven, I am not fussed by the number, five, six, seven, eight reasons to support the Court of Appeal’s ultimate conclusion, whether with or without the position of Mr Robb.  The propositions, I think, can be likely encompassed within relatively short submissions.  Whether it is 20 or perhaps out to 30, the propositions can be encompassed relatively narrowly.  What is hard is the critical apparatus that supports the proposition, that is, how you give this Court a sufficient road map through the voluminous record to support the proposition that on day X at place Y the car was on this side of the road rather than on the other side of the road, if you follow the wholly imperfect analogy. 

One of the other matters I wanted to raise with counsel was, for their consideration rather than as a matter of direction, for them to consider how they can best give us the road map that will enable us (a) to understand how the argument is going, what the argument is and how it is made out but, secondly, to turn it round and write a judgment at the end of it. 

MR McHUGH:   Your Honour, the principal difficulty is that although at a very high level one might be able to point to a dozen circumstances in explaining the way they emerge in the evidence and how different parts of the evidence fit together, that the parties below found that with the very best will in the world and under what the Court of Appeal considered was a very stringent regime, it nevertheless took a good deal more than the 20 pages. 

Now, one way, if your Honour is not minded to have a separate directions hearing but to deal with it today, one way which is certainly less than satisfactory but one way of dealing with it is at least if the orange books stay in, then where the detailed analysis of the evidence needs to be cross‑referenced from the principal submissions, it could be done by reference to the orange books.  That may not provide a very appealing road map for a Judge sitting in chambers trying to make sense of it, but the alternative is for the Court to be left with 20 pages at a very high level of generality and 35 appeal books and the ultimate submission being the Court should go away and read it and will not be persuaded.  Even if the orange books stay in, in my submission, the parties really should be given a considerably larger page limit and not less than 50 pages. 

Your Honour, I do not again wish to start an auction, but what your Honour says about dividing up points is in principle something with which we all agree and the way in the Court of Appeal in which effectively it worked with the lead appellants was that someone, Mr Hollo’s clients, put their hands up and they became consensually the lead appellants, but with only four weeks between submissions and a colossal amount of material it may not be realistic to hope for real gains out of that kind of co‑operation.  It just may not be possible, given how long it takes to draft things. In any event, your Honour, the only submission I want to make is if your Honour is not minded to adopt Mr Hollo’s proposal, then your Honour should give us at least 50 pages and the orange book should stay because if the parties find that that is the only way of putting the detail in, then so be it.  May it please the Court.

HIS HONOUR:   Yes.

MR WOOD:   I have nothing further to add to what Mr McHugh has said.

HIS HONOUR:   Yes.  Thank you.

MR LANCASTER:   Your Honour, from Mr Shafron could I respectively agree with the Solicitor‑General’s suggested addition for the appeal books.  That, in particular, is a facility that we will avail ourselves of, we think.  I do not have anything to say about the orange books included in the appeal books, but in respect of the issue your Honour asked about in 3(b)(vii), for our part, and it is probably only relevant for Mr Shafron, we do not see the need for those reasons to go in the book.  We have filed yesterday a further amended notice of appeal that makes it clear that of course those orders are appealed against but on the basis of the existing grounds of appeal, so our notice of appeal when filed will refer to those orders.

HIS HONOUR:   How long are the reasons of 6 May?  Are they very long reasons?

MR LANCASTER:   No, they are not very long in the scheme of things. 

HIS HONOUR:   We will include them anyway.  Murphy’s law dictates that if they are not there, we need them.

MR LANCASTER:   Your Honour, the other thing I have to say comes within your Honour’s invitation to make a comment.  You have heard Mr Hollo and Mr McHugh both refer to the fact intensive nature of the non‑executive directors’ cases.  We of course have our distinct legal issues and factual issues.  We do have a reservation about the three days set aside by the Court this morning in the context where in the Court of Appeal, as Mr McHugh said this morning, it went for six and a half days and the non‑executive directors took such time as they did on the fact intensive aspect of it.  That can perhaps be one of the matters addressed as between counsel if three days is our limit, but I did want to express that reservation.

HIS HONOUR:   Have to work on the assumption that it is going to be fixed for three days.

MR LANCASTER:   Yes, thank you.

HIS HONOUR:   Yes.

MR JUCOVIC:   May I just add one further dimension.  As I mentioned this morning, we would be putting on a notice of contention that deals with the issue of whether that part of the decision of the Court of Appeal that rejected our argument about the nature of the representations and the negligence was correct, and I was going to seek a direction in relation to that aspect of the matter, the submissions on the notice of contention I could have at least 20 pages in addition to whatever your Honour allows the parties in relation to their submissions on the appeal.

HIS HONOUR:   Why would it take you an extra 20 pages?

MR JUCOVIC:   Because in a sense we are almost an appellant, as it were, who would be entitled to 20 pages.  There are fact matters as well, your Honour.  Otherwise, I support what has gone before us, the need for the extension of the page length.  I have nothing further to add, your Honour.

HIS HONOUR:   Yes.  Thank you.  Are there any other submissions?  No.  You wish to be heard in reply on these matters, Mr Solicitor?

MR GAGELER:   Yes, just in one respect and that is in the respect of the page limit, your Honour.  We wish to place on the record that we oppose any variation from standard timetable.  The 20 pages introduces a significant discipline and the bringing to bear of such a discipline in this case would do no harm.  If your Honour is minded to increase the page limit, then we seek an element of reciprocity in submissions in‑chief and we would also seek a variation to the order for submissions in reply giving us just a little longer to respond and just a few more pages than the usual five.

HIS HONOUR:   Can you be a little more precise about what you would say I should do?

MR GAGELER:   In order 7, if your Honour were, for example, contemplating increasing the submissions in‑chief to, say, 50 pages, we would seek an extra week, to make it 29 July, and we would seek to have the submissions in reply not exceeding 10 pages rather than the usual five.

HIS HONOUR:   Yes, Mr Hollo.

MR HOLLO:   I am minded to raise this with your Honour only because I act for four respondents and there might be some ambiguity how the order ought work.  In other words, is it envisaged that these directions that each of my clients gets ‑ ‑ ‑

HIS HONOUR:   No, one set.  I know you appear for a set of parties between whom there is assumed to be no divergent interest.  The interest has its one set.

MR HOLLO:   That is correct insofar as there are not divergent interests, but two of my clients have a slightly different point, which is the one Mr Bathurst raised this morning, that the American clients wish to raise a notice of contention that is unique to them, but I did not want that point to be unclarified, your Honour.

HIS HONOUR:   Having regard to what counsel have said in the matter, I am minded first to retain in the appeal book for use in this Court those volumes which were the orange volumes in the Court of Appeal.  It may be as events turn out that little or no reference is made to them, but it is possible that they may prove to be a point of reference of some utility in the preparation of the written submissions and the possibility of that being so is reason enough to retain them in the preparation of the appeal book. 

I recognise entirely the difficulties which counsel face in a fact intensive case.  The difficulty of reducing what is a large volume of material into manageable form within small compass can be intensely difficult.  Having regard to that, I am minded to slip the timetable that I had initially proposed by a further seven days.  That is, each of the steps would extend by at least seven days, and I shall come to the particular dates in a moment.  I recognise also the force of the point made, I think, by Mr McHugh that to conduct the negotiations necessary to ensure that there is no duplication of the submissions is itself time consuming and diverting from the otherwise intensely difficult task of producing submissions that do sufficient justice to the parties’ causes.

As for the length of submissions, the 20 page limit which the Court has hitherto ordinarily applied is one which in its application from day to day seems to yield remarkable conformity.  Whatever the issues in a case, however large, however small, most submissions seem to come in at about 19 and a half or sometimes 20 pages, sometimes with scant attention to that aspect of the rules which fixes font size and margin, but that reference to the real world is perhaps irrelevant to the immediate issue that confronts me of how large the submissions in this matter should be. 

I think, making the best guess I can as to the likely useful length of submissions, that it is best that I fix a limit of 40 pages in respect of each appellant’s submissions, that is, each represented group’s submissions; not 40 per client but 40 per group, and that the submissions in reply may go out to not more than 10 pages.  It would follow, I think, that, subject to what counsel may say as to form, paragraphs 1, 2, 3(a), 3(b) and 4 of the proposed directions can stand as circulated. 

Paragraph 5 of the proposed directions would be modified to read on or before 17 June 2011, the appellant in appeals arising from the grant of special leave in applications S29 to S36 of 2011 file and serve its written submissions in support of those appeals and its chronology, and the appellant in the appeal arising from the grant of special leave in S37 of 2011 file and serve his written submissions and chronology in support of that appeal. 

In each case the written submissions not to exceed 40 pages.  Minute 6 I think is best adjusted to a date of 20 July for the respondents to file and serve their or its written submissions in opposition, in each case again the written submissions not to exceed 40 pages.  Then on or before 12 August, it will be a longer than normal time, the appellant in appeals arising from the grants in S29, et cetera, and the appellant in the appeal arising from the grant in S37, et cetera, to file and serve any written submissions in reply, in each case the written submissions not to exceed 10 pages. 

It would then be necessary to insert as a new minute 8, on or before 19 August the appellant in the appeals arising from the grant of special leave in applications S29 to S36 of 2011 to file and serve an additional volume of the appeal book, paginated sequentially, commencing from the pagination of the books referred to in paragraph 3(b) of this order containing any document referred to in the submissions of any party which is a document not otherwise included in the appeal books already filed.

Other than the consequential renumbering, do counsel seek to be heard as to the form or content of those directions as modified in that fashion?  No.  Thank you. 

One other minor matter that is a matter particularly for ASIC to bear in mind with the preparation of the appeal book and the copy of the judgment below, yes, double side the pages but, please, one page of the report per side of paper.  We do not want you to reduce it to 70 or 80 per cent and double side it.  That perhaps goes without saying but such things have occurred in the past and led to a little irritation. 

The reservation of liberty to apply is intended to be exercised.  If this thing is starting to go off the rails, then, like it or not, we will have to have a further directions hearing and I will do it by video from Melbourne if that will assist the parties.  All I would say to you though is that I am conscious of how much a directions hearing in a matter like this costs, so I do expect counsel to have discovered the telephone and the ability to talk one to another, which is perhaps expecting no more than I should.  Yes, Mr Hollo.

MR HOLLO:   There is one matter about which I would seek your Honour’s indulgence.  It arises from the news that no doubt your Honour heard during the luncheon adjournment.

HIS HONOUR:   Subsequent engagements, yes.

MR HOLLO:   Subsequent engagements with the consequence that my team is a man down. 

HIS HONOUR:   The traditional riposte to that from this Bench on occasions like that I am sure is, “Are you not lucky; it is time for you to step up.” 

MR HOLLO:   Yes, your Honour.  That would certainly be my preference, your Honour.

HIS HONOUR:   I think I heard Sir Garfield Barwick say exactly that.

MR HOLLO:   Your Honour, it is this, and I full well realise your Honour may not be able to assist me, but does your Honour have in mind a range of dates ‑ ‑ ‑

HIS HONOUR:   Not yet.

MR HOLLO:   If your Honour pleases.

HIS HONOUR:   With that timetable we cannot do earlier than the sittings commencing 30 August.  Now, whether it would likely be fixed in that sittings I am not quite sure.  I think counsel might usefully do two things.  One, work on the assumption that the sittings commencing on 30 August is not out of the question, the first week of that sittings is not out of the question, but, second, to keep in touch with the Registry who will, of course, tell counsel as soon as we have some more definite dates.  I know that is vague, I know that does not help you much, but it is the best I can do.

MR HOLLO:   May it please the Court.

HIS HONOUR:   Could I then simply say again and I have said it once, if counsel can devise a means of giving us some method of navigating our way round this record in a way that is useful, we will take whatever help we can get.  I know the problem is there.  I simply utter the cri de coeur that if there is some method that a course of events in the Court of Appeal suggested was useful.  I have in mind such things as simple tables of the critical pages of transcript, those which you would want to keep coming back and saying look, read what witness X said at page Y. 

I do not myself favour the preparation of separate bundles of documents.  We simply drown in the sea of documents, but if that is the best way you think to present your party’s case, well, that is the best way you think it is to be done, so be it.  But, as I say, I recognise there is a problem here, but I offer no immediate solution.  I do invite counsel between them, though, to apply such ingenuity as they can to its solution. 

Is there any other matter which counsel desires to raise?  Thank you for allowing us to deal with the directions so promptly after leave.  I thought it better to do it today, though, rather than appoint a separate day.  Thank you.  I will adjourn.

AT 3.07 PM THE MATTER WAS ADJOURNED