C P Ventures Pty Ltd v McKeon

[1999] FCA 1435

FEDERAL COURT OF AUSTRALIA

C P Ventures Pty Ltd v McKeon

[1999] FCA 1435

C P VENTURES PTY LTD v SIMON McKEON & ORS

W 83 of 1999

CARR J
13 SEPTEMBER 1999
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 83 OF 1999

BETWEEN:	C P VENTURES PTY LTD Applicant
AND:	SIMON McKEON & OTHERS Respondent

JUDGE:	CARR J
DATE:	13 SEPTEMBER 1999
PLACE:	PERTH

EX TEMPORE REASONS FOR JUDGMENT

1. I heard this application on 8 September; that is, last Wednesday, and reserved judgment on that date.  The hearing of the matter had been expedited and a full day, including some extra time in the morning and in the afternoon, was occupied by that hearing.  I was asked to give my judgment as a matter of urgency as the second respondents, the Corporations and Securities Panel (“the Panel”), intended to conduct a conference starting tomorrow.

2. Last Friday afternoon I caused the parties to be informed that judgment would be handed down at 2.15 pm today.  This morning the applicant has filed a notice of motion seeking leave to reopen its case.  The applicant seeks leave to tender an affidavit sworn this morning by its counsel, Mr Martin Bennett.  There are two grounds stated in the motion.  The first is that at the hearing last Wednesday, counsel for the Panel submitted that the issue of the relationship or association between Mr Denis Cullity and other shareholders of Wesfi Ltd would be the subject of the inquiry by the Panel.  The applicant says that by reason of the matters set out in Mr Bennett’s affidavit of today’s date, these matters will not be considered by the Panel or, alternatively, will not properly be considered by it.

3. I have read Mr Bennett’s affidavit with a view to deciding whether it should be admitted into evidence at such a late stage.  In his affidavit, Mr Bennett refers to matters which occurred on Thursday and Friday of last week.  I shall try to summarise those matters.  Mr Bennett says that on 9 September the Panel convened a directions conference in respect of its inquiry.  He, that is, Mr Bennett, asked the Panel to issue notices to produce and summonses to witness to various persons and companies.

4. From the first annexure to Mr Bennett’s affidavit, it appears that on behalf of his client, he asked the Panel to issue notices to produce to some 31 individuals and companies and to summons four individuals to give evidence.  The next annexure to Mr Bennett’s affidavit is a copy of a letter dated 9 September 1999 from the solicitors for the Panel which sets out a list of 12 individuals whom the Panel says it will summons as witnesses to its conference commencing tomorrow.  They include Mr Denis Cullity who appears in both of the applicant’s lists.

5. The third annexure to Mr Bennett’s affidavit is a copy of directions made by the Panel in respect of the conference which it proposes to hold tomorrow.  On the basis of the second and third annexures to his affidavit, Mr Bennett says that he believes that the Panel has not acceded to his client’s request to inquire fully into the nature of the association between Mr Denis Cullity and other shareholders in Wesfi Ltd and that his client will not have any right to cross-examine Mr Cullity.  In that regard, I note that paragraph 7 of the proposed directions provides that there may not be any cross-examination by persons not being members of the Panel without the leave of the Panel.

6. Mr Bennett in his affidavit then deposes to his attempts last Friday to contact the solicitors for the Panel.  He deposes to a telephone conversation he had with a solicitor in the employment of that firm.  On the basis of that conversation Mr Bennett states a belief that notices to produce have not been issued to the individuals and companies as sought by the applicant.  Mr Bennett states his belief that the matters to which he deposes are relevant to my decision in respect of this application.

7. The only decision in the principal application to which these matters could possibly have any relevance is the Panel’s alleged decision on 20 August 1999 to refuse to consider, as an issue forming part of the Panel’s brief, the nature and extent of the relationship between Mr Cullity, the other directors of Wesfi Ltd and interests otherwise aligned with Mr Cullity.

8. The whole challenge which the applicant made to that decision was based on the assumption that the Panel had decided on 20 August 1999 to refuse to consider that issue.  I do not consider that the evidence contained in Mr Bennett's affidavit is relevant to his client's challenge to the Panel's decision of 20 August 1999.  On the face of the material contained in the documents annexed to Mr Bennett’s affidavit, his client’s complaints relate to the manner in which the Panel proposes to conduct its inquiry into that issue.

9. All of the matters to which he deposes occurred since the hearing of this application.  That in itself would not preclude leave being granted to a party to reopen its case and adduce further evidence if the events which transpired after the hearing had a sufficient bearing on the determination of the matter which formed the subject matter of the hearing, or would otherwise be in the interests of justice.

10. However, I do not consider that either circumstance applies to the present situation.  That is, I do not consider that the events since I reserved judgment have a sufficient bearing on the determination of the application, nor do I consider that it is in the interests of justice to allow the applicant to reopen its case for the purposes foreshadowed.  For those reasons the motion will be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr

Associate:  

Date:

Counsel for the Applicant:	Mr M L Bennett
Solicitor for the Applicant:	Messrs Bennett & Co
Counsel for the Respondents:	Mr R L Le Miere QC
Solicitor for the Respondents:	Blake Dawson Waldron
Date of Hearing:	13 September 1999
Date of Judgment:	13 September 1999