Australian Securities and Investments Commission v Storm Financial Limited (Receivers and Managers Appointed) (in liq)

[2012] FCA 915

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Storm Financial Limited (Receivers and Managers Appointed) (in liq) [2012] FCA 915

Citation:

Australian Securities and Investments Commission v Storm Financial Limited (Receivers and Managers Appointed) (in liq) [2012] FCA 915

Parties:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v STORM FINANCIAL LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) ACN 064 804 691, COMMONWEALTH BANK OF AUSTRALIA ACN 123 123 124, BANK OF QUEENSLAND LIMITED ACN 009 656 740 AND MACQUARIE BANK LIMITED ACN 008 583 542 AND CHALLENGER MANAGED INVESTMENTS LIMITED ACN 002 835 592 and CHALLENGER LIMITED

TRACEY RICHARDS v MACQUARIE BANK LIMITED ABN 46 008 583 542

LESLIE JAMES SHERWOOD, JULIANNE SHERWOOD, SEAN PATRICK JUDE MCARDLE and PAULA JOANNE MCARDLE v COMMONWEALTH BANK OF AUSTRALIA ABN 48 123 123 124 and COLONIAL FIRST STATE INVESTMENTS LTD ABN 98 002 348 352

File numbers:

QUD 577 of 2010
QUD 590 of 2010
NSD 811 of 2010

Judge:

REEVES J

Date of judgment:

1 March 2012

Date of hearing:

1 March 2012

Place:

Brisbane

Division:

GENERAL DIVISION

Category:

No Catchwords

Number of paragraphs:

7

QUD 577 of 2010

Counsel for the Plaintiff:

Mr R Strong

Solicitor for the Plaintiff:

Australian Securities and Investments Commission

Solicitor for the First Defendant:

The First Defendant did not appear

Counsel for the Second Defendant:

Mr R Hollo SC with Mr R McInnes

Solicitor for the Second Defendant:

Clayton Utz

Counsel for the Third Defendant:

Mr A Crowe SC with Mr M Jones

Solicitor for the Third Defendant:

HWL Ebsworth

Counsel for the Fourth Defendant:

Mr JC Sheahan SC with Mr A Pomeranke

Solicitor for the Fourth Defendant:

Allens Arthur Robinson

Counsel for the Others:

Mr J Bond SC with Mr D Mackay

Solicitor for the Others:

Minter Ellison

QUD 590 of 2010

Counsel for the Applicant:

Mr I Davidson SC with Mr D Klineberg and Ms A Rao

Solicitor for the Applicant:

Levitt Robinson

Counsel for the Respondents:

Mr JC Sheahan SC with Mr A Pomeranke

Solicitor for the Respondent:

Allens Arthur Robinson

NSD 811 of 2010

Counsel for the First, Second, Third and Fourth Applicants:

Mr I Davidson SC with Mr D Klineberg and Ms A Rao

Solicitor for the First, Second, Third and Fourth Applicants:

Levitt Robinson

Counsel for the First and Second Respondents:

Mr R Hollo SC with Mr R McInnes

Solicitor for the First and Second Respondents:

Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 577 of 2010

BETWEEN:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Plaintiff

AND:

STORM FINANCIAL LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION)
ACN 064 804 691
First Defendant

COMMONWEALTH BANK OF AUSTRALIA
ACN 123 123 124
Second Defendant

BANK OF QUEENSLAND LIMITED ACN 009 656 740
Third Defendant

MACQUARIE BANK LIMITED ACN 008 583 542
Fourth Defendant

CHALLENGER MANAGED INVESTMENTS LIMITED
ACN 002 835 592 and CHALLENGER LIMITED
Others

JUDGE:	REEVES J
DATE OF ORDER:	1 MARCH 2012
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The date in paragraph 17 of the Discovery Plan be amended to 16 May 2012.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 590 of 2010

BETWEEN:	TRACEY RICHARDS Applicant
AND:	MACQUARIE BANK LIMITED ABN 46 008 583 542 Respondent

JUDGE:	REEVES J
DATE OF ORDER:	1 MARCH 2012
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.      The date in paragraph 17 of the Discovery Plan be amended to 16 May 2012.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 811 of 2010

BETWEEN:

LESLIE JAMES SHERWOOD
First Applicant

JULIANNE SHERWOOD
Second Applicant

SEAN PATRICK JUDE MCARDLE
Third Applicant

PAULA JOANNE MCARDLE
Fourth Applicant

AND:

COMMONWEALTH BANK OF AUSTRALIA
ABN 48 123 123 124
First Respondent

COLONIAL FIRST STATE INVESTMENTS LTD
ABN 98 002 348 352
Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	1 MARCH 2012
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.      The date in paragraph 17 of the Discovery Plan be amended to 16 May 2012.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 577 of 2010

BETWEEN:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Plaintiff

AND:

STORM FINANCIAL LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION)
ACN 064 804 691
First Defendant

COMMONWEALTH BANK OF AUSTRALIA
ACN 123 123 124
Second Defendant

BANK OF QUEENSLAND LIMITED ACN 009 656 740
Third Defendant

MACQUARIE BANK LIMITED ACN 008 583 542
Fourth Defendant

CHALLENGER MANAGED INVESTMENTS LIMITED
ACN 002 835 592 and CHALLENGER LIMITED
Others

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 590 of 2010

BETWEEN:	TRACEY RICHARDS Applicant
AND:	MACQUARIE BANK LIMITED ABN 46 008 583 542 Respondent
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION		NSD 811 of 2010

BETWEEN:

LESLIE JAMES SHERWOOD
First Applicant

JULIANNE SHERWOOD
Second Applicant

SEAN PATRICK JUDE MCARDLE
Third Applicant

PAULA JOANNE MCARDLE
Fourth Applicant

AND:

COMMONWEALTH BANK OF AUSTRALIA
ABN 48 123 123 124
First Respondent

COLONIAL FIRST STATE INVESTMENTS LTD
ABN 98 002 348 352
Second Respondent

JUDGE:	REEVES J
DATE:	1 MARCH 2012
PLACE:	BRISBANE

EX TEMPORE REASONS FOR JUDGMENT

1. On 23 September 2011, I made orders in this matter, including Schedule A (the Discovery Plan).  The Discovery Plan was adopted by agreement between the parties.  It included a provision that allowed for objection by a third party to the production of any of its documents.

2. In 2011, Challenger Limited and Challenger Managed Investments Ltd (jointly to be referred to as Challenger) objected to the production of certain documents (the Challenger documents) held by Australian Securities and Investments Commission (ASIC).  ASIC had obtained those documents under one of the statutory processes in the Corporations Act 2001 (Cth) or the Australian Securities and Investments Commission Act 2001 (Cth). Challenger was subsequently successful in its objection and thereby able to enforce its interest to limit any production of the Challenger documents to those documents that had apparent relevance in these proceedings. Since that ruling, the parties have identified various categories of documents which include a number of unobjected categories that are agreed to have apparent relevance in these proceedings.

3. It is now necessary for someone to go through the Challenger documents to put them into those categories.  Macquarie Bank Limited says that ASIC should perform that exercise as part of its discovery obligations as a party to these proceedings.  In my view, that submission should be rejected.  The peculiar situation that has emerged here essentially flows from the agreement between the parties that was incorporated in the Discovery Plan that was put in place.  As I have said, the Discovery Plan included a provision that allowed for a third party, like Challenger, to make the objection it did.  I therefore consider the current circumstances are unique such that ASIC does not have the same obligations as it ordinarily would have as a party in relation to the discovery of the Challenger documents.

4. For its part, ASIC submits that it is not appropriate to require it to review the unobjected Challenger documents and place them into the agreed categories.  It submits, first, it is not its interests that are being protected, but Challenger’s, consequently Challenger is the proper person to make that assessment.  ASIC also submits that, for resources reasons, it could not undertake an examination of the documents concerned until early May 2012 and that will upset the pre-trial program that is in place.

5. Challenger says it is willing to review the documents concerned and place them into the agreed categories, but it submits it should be paid the costs associated with that exercise.

6. In the circumstances where Challenger has made the objections as a third party to these proceedings and it is seeking to protect its interests, I consider that Challenger should conduct this review and undertake the categorisation exercise at its own cost.

7. The only order I therefore need to make is that the date in paragraph 17 of the Discovery Plan be amended to 16 May 2012.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:
Dated:       20 August 2012