Mark Henry Skinner v Redmond Family Holdings Pty Limited

[2017] NSWCA 237

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Mark Henry Skinner v Redmond Family Holdings Pty Limited [2017] NSWCA 237
Hearing dates:	11 September 2017
Decision date:	11 September 2017
Before:	Payne JA
Decision:
Catchwords:	CIVIL PROCEDURE – case management hearing
Category:	Principal judgment
Parties:	Mark Henry Skinner (First Appellant) Patrick Charles Oliver Stone (Second Appellant) Redmond Family Holdings Pty Limited (Respondent)
Representation:	Counsel: M Foley (Appellants) J Pearson (Respondent)   Solicitors: Foleys Lawyers (Appellants) LAS – Lawyers and Consultants (Respondent)
File Number(s):	2017/00016215
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity – Corporations List Citation: [2016] NSWSC 796 Date of Decision: 16 June 2016 Before: Black J File Number(s): 2012/13331

EX TEMPORE Judgment

[Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194]]

1. HIS HONOUR: This matter comes before me today for a case management hearing following a number of significant delays in the preparation of the matter for appeal.

2. The decision of the primary judge was delivered on 16 June 2016. His Honour invited the parties to bring in short minutes to give effect to that decision. Regrettably, the parties were not able to agree and his Honour was forced to write another lengthy judgment.

3. His Honour's final orders were made on 21 December 2016. The appellant filed a notice of intention to appeal on 17 January 2017 and the notice of appeal was filed on 21 March 2017. I note that Mr Stone, who was originally the second respondent, is now the second appellant to the appeal.

4. The matter has been before the Registrar of the Court on five previous occasions in May, June, July, August and September 2017. A Red Book was filed on 23 June 2017. On 9 August 2017, the appellants’ written submissions were filed. At the hearing today, the appellants were represented by Mr Foley, solicitor, and the respondent was represented by Mr Pearson. The purpose of the hearing today was to consider making orders to bring this appeal before the Court as soon as reasonably practicable.

5. I heard submissions from the parties about why I should not make orders for the orderly preparation of the matter including:

1. filing the Black and Blue books,

2. filing the respondent's written submissions;

3. filing any submissions by the appellants in reply;

4. making an order setting the matter down for hearing in November 2017.

6. Mr Foley submitted that there were a number of issues which had prevented progress in the matter.

7. In particular, it was proposed by the appellants to attempt to lead further evidence on the appeal. Subpoenas had been issued by the appellants seeking information about the whereabouts of a number of people on 3 May 2011, which was submitted to be a critical date in the decision of the primary judge. It was submitted that the primary judge’s findings about a meeting on that day were critical to the appellants’ prospects on the appeal.

8. In addition, Mr Foley foreshadowed a potential motion seeking a stay of bankruptcy proceedings, which I was informed had been commenced against Mr Stone, the second appellant. Finally, it was submitted that a motion may be filed by the appellants in the event of a failure to comply with any of the subpoenas which have been issued. I note that none of those motions are before me today. Such motions may never be filed.

9. In relation to the proposed further evidence, Mr Foley made clear that that evidence is limited to the participants in and conduct of a meeting said to have occurred on 3 May 2011. The appellants did not identify why the evidence that is being sought by subpoena could not have been obtained with reasonable diligence prior to the hearing before the primary judge.

Consideration

10. It is not appropriate that the resources of the Court and the interests of other litigants should be postponed while these appellants addresses the matters the subject of the three potential motions. None of those motions have yet been filed.

11. In relation to the proposed further evidence, if such evidence emerges prior to the hearing, and subject to sufficient notice being given to the respondent, it would be appropriate for that motion and that evidence then to be filed and served.

12. In all the circumstances I propose to make orders to ready the matter for hearing. I will also bring the matter back before me prior to the hearing date to confirm that the steps I have ordered in preparation have been undertaken.

13. I make the following orders:   

1. Direct that the appellants file and serve the Black Book by 4pm, 16 September 2017; 

2. Direct that the appellants file and serve the Blue Books by 4pm, 2 October 2017; 

3. Direct that the respondent file and serve its written submissions by 4pm, 2 October 2017;

4. Direct that the appellants file and serve any written submissions in reply by 4pm, 23 October 2017;

5. Direct that the appellants file and serve the Orange Book by 4pm, 23 October 2017;

6. The matter be listed for hearing of the appeal for no more than one day on 24 November 2017;

7. That the matter be listed before me for directions at 9.30am, 25 October 2017.

14. If prior to 25 October 2017 all of the material identified in the orders I have made has been filed and served and the parties do not wish to raise any issue with me, I grant leave to the parties to notify that agreement to my Associate, upon which notification the listing on 25 October 2017 before me will be vacated.

Variation of orders

15. In revising my ex tempore remarks it became apparent that the date in order (1), 16 September 2017, is a Saturday. Accordingly I amend the date in order (1) to 4pm on Monday 18 September 2017.

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Decision last updated: 15 September 2017