Re AWB Limited (No 4)

[2009] VSC 315

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT
CORPORATIONS LIST

No. 10078 of 2007

IN THE MATTER OF AWB LIMITED (ACN 081 890 459)

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION	Plaintiff
v
ANDREW ALEXANDER LINDBERG	Defendant

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 April, 7, 14 and 28 May and 4 June 2009
DATE OF JUDGMENT:	4 June 2009
CASE MAY BE CITED AS:	Re AWB Limited (No 4)
MEDIUM NEUTRAL CITATION:	[2009] VSC 315

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CORPORATIONS - Civil penalty proceedings by ASIC – Non-party discovery sought by ASIC – Application to further amend the amended statement of claim – Application to vacate trial date – Relevance of prejudice to defendant in delay – r 32.07 of Supreme Court (General Civil Procedure) Rules 2005.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N J O'Bryan SC with Mr P D Crutchfield and Mr C H Truong	The Australian Securities and Investments Commission
For the Defendant	Mr D G Collins SC with Mr G P Mullaly and Ms M Tittensor	Galbally & O’Bryan Solicitors
For AWB Limited	Mr C M Scerri QC with Mr N McAteer	Allens Arthur Robinson

HIS HONOUR:

1. I have before me three applications:

(a)       an application by ASIC for non-party discovery from AWB (made by summons dated 27 March 2009);

(b)      an application by ASIC to vacate the orders made on 21 November 2008 that ASIC file witness statements by 1 May 2009 and that the trial be fixed for 13 July 2009, and the ancillary orders (made by interlocutory process dated 22 May 2009); and

(c)       an application by Mr Lindberg for orders that, unless ASIC files its witness statement by 12 June 2009, the proceeding be dismissed (made by summons dated 26 May 2009).

1. If I vacate the trial date as requested by ASIC, I will also have before me an application by ASIC to further amend its amended statement of claim (made by summons dated 1 May 2009).

1. I have given a history of this proceeding in Re AWB Limited (No 3).[1]There is no need to repeat it here.  The latest round of interlocutory applications started with ASIC issuing its summons for non-party discovery from AWB on 27 March 2009.  Whilst negotiations were continuing between ASIC and AWB as to the scope of the discovery, I heard and determined ASIC’s application to further amend its amended statement of claim.  I refused the amendment on the basis that the amendment would lead to the vacation of the trial date.  I understood that the vast bulk of the documents that ASIC sought to obtain on the non-party discovery went to the issues that ASIC proposed to raise in its further amendments to the amended statement of claim.  I also understood that the discovery of these documents and their consideration by ASIC and Mr Lindberg would necessarily lead to the trial date being vacated.

   [1][2009] VSC 209.

1. On 21 November 2008, I ordered that:

(a)       Mr Lindberg file his defence by 12 December 2008;

(b)      ASIC file and serve a list of documents upon which it proposes to rely at trial by 30 January 2009;

(c)       ASIC file and serve an affidavit of documents by 27 February 2009;

(d)      Mr Lindberg may, if he wishes, identify to ASIC those documents in ASIC’s list that are disputed by Mr Lindberg by 23 February 2009;

(e)       All applications in connection with subpoenas, discovery, privilege and third party confidentiality issues be brought by 27 March 2009;

(f)       ASIC file and serve a statement of the evidence of any witness upon which it proposes to rely by 1 May 2009, including the evidence of any expert it intends to call; and

(g)      the matter be set down for trial commencing 13 July 2009.

1. ASIC filed a list of documents that it intends to rely on at the trial on 10 February 2009 and a further list on 27 February 2009.  The lists were entitled “notice seeking admissions.”  ASIC contends that the 21 November 2008 orders were not understood by ASIC to have, and did not have, the effect of limiting ASIC’s case to the documents identified in the notices seeking admission.  ASIC submits that the orders were intended to identify and reduce, at an early stage, the scope of any dispute as to the authenticity of documents.

1. Further, ASIC contends that the 21 November 2008 orders were not understood by ASIC or Mr Lindberg to have limited ASIC’s case to those documents identified in the lists served.  Each list sent to Mr Lindberg’s solicitors was accompanied by a letter, by ASIC, which said that the notice was served without prejudice to ASIC’s right to serve further notices and/or to rely at trial on documents other than those referred to in any notice.[2]  ASIC submits that Mr Lindberg took no exception to that reservation.  Mr Lockett, in his affidavit of 1 May 2009,[3] refers to complaints made by Mr Lindberg’s counsel about the form of the notices, without any objection to ASIC reserving the right to rely on further documents not in the lists.

   [2]MTL-8 and MTL-9.

   [3][28] and [32].

1. ASIC also contends that the order that applications for discovery be made by 27 March 2009 demonstrates that the orders of 21 November 2008 envisaged that further documents to those listed in the lists might be relied on by ASIC at the trial.  As further evidence of ASIC’s understanding, and the purpose of the order, ASIC refers to Mr O’Bryan’s statement on 21 November 2009 that ASIC was assuming that it was going to need to make applications for documents from various people to complete its’ statements of evidence.[4]

   [4]Transcript 21 November, 25.

1. ASIC also relies on the order for Mr Lindberg to respond to the notices, if he wished, as further evidence that the primary purpose of the notices was to identify at an early stage the scope of any dispute as to the authenticity of documents.

1. Mr Lockett, in his affidavit of 29 May 2009, says that categories 1 and 5 of the non-party discovery application are sought principally for the purposes of proving the authenticity of particular documents set out in annexure B to the non-party discovery application, the receipt of documents by Mr Lindberg, and Mr Lindberg’s use of e-mail.[5]  He says that putting those two categories aside, all other documents sought by ASIC under categories 2, 3, 4 and 6 to 10 of the non-party discovery application are relevant to the case pleaded in ASIC’s amended statement of claim.  He says that the utility of AWB giving discovery of these documents is not dependent upon an order permitting ASIC to file and serve the further amended statement of claim.[6]

   [5][17].

   [6][19].

1. Mr Lindberg does not take issue with ASIC’s assertion that ASIC was not limited to using, at the trial, only those documents listed in the notices filed in February 2009.  However, Mr Lindberg strongly objects to ASIC obtaining non-party discovery from AWB at this late stage.  Mr Lindberg contends that ASIC has known, since the Cole Report was published, of Mr Lindberg’s position.  Mr Lindberg contends that there has been no adequate explanation on why the documents that ASIC now seeks were not obtained in time for the trial to start on 13 July 2009.

1. Mr Lindberg has sworn an affidavit of 2 June 2009, deposing of the prejudice and hardship he is suffering due to the delay in this proceeding being heard.  Apart from the stress on himself, his wife and family, Mr Lindberg deposes that he is unable to obtain any meaningful employment while ASIC’s proceedings remain on foot.  I accept what Mr Lindberg says.

1. ASIC seeks a new trial date of 1 September 2009.  If a new trial date was fixed, 5 October 2009 would be more convenient to the court.  The delay in the commencement of the proceeding would therefore be less than three months.

1. I accept that ASIC has been preparing its case on the basis that it may, if it wished, seek further discovery and rely on documents at trial in addition to those listed in the February lists.  I accept that the documents sought to be obtained from AWB are relevant to the issues in the existing amended statement of claim.

1. I find that for the purposes of rule 32.07, it is likely that AWB has or has previously had, in its possession, the documents sought by ASIC.  I also find that those documents are either directly or indirectly relevant to any question in the proceeding.  My discretion to order non-party discovery is activated.

1. I accept that Mr Lindberg will be prejudiced by a three-month or so delay in the commencement of the proceedings.  On the other hand, I consider that there will be prejudice to ASIC unless the adjournment is granted.  On balance, and after taking into account the matters referred to above, I consider that ASIC should have its non-party discovery and its adjournment.

1. I consider, however, that it is only fair that Mr Lindberg has knowledge of the documents that ASIC intends to rely on at the trial and if Mr Lindberg so applies, I am prepared to order that a list of documents be given to him prior to the trial and that no further documents can be used by ASIC at the trial without leave of the court.

1. I have been provided with draft minutes of orders and, subject to the submissions of counsel for AWB and Mr Lindberg,  will make orders to that effect.

1. As the trial date is now to be vacated, I am prepared to permit ASIC to further amend its amended statement of claim, in accordance with the draft of 1 May 2009, subject to any objections Mr Lindberg may have to the form of the amendments.

1. I decline to  make the orders sought in Mr Lindberg’s application of 26 May 2009.