Re AWB Limited (No 8) - [2009] VSC 469

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:	5 October 2009
DATE OF JUDGMENT:	16 October 2009
CASE MAY BE CITED AS:	Re AWB Limited (No 8)
MEDIUM NEUTRAL CITATION:	[2009] VSC 469

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CORPORATIONS - civil penalty proceedings by ASIC – statements of evidence to be led by ASIC – whether or not substance of relevant conversations should be given – whether list of documents to be relied on by ASIC given in a proper form – premature to anticipate whether or not evidence will be admitted or other relief given

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N J O'Bryan SC with Mr J P Moore	The Australian Securities and Investments Commission
For the Defendant	Mr D G Collins SC with Ms M Tittensor	Galbally & O’Bryan Solicitors

HIS HONOUR:
INTRODUCTION AND SUMMARY

This is but one of a series of interlocutory applications in proceedings where ASIC claims penalties and other relief against Mr Lindberg, the former managing director of AWB Ltd. The trial is fixed to commence on Monday 19 October 2009.

By an interlocutory process dated 5 October 2009, Mr Lindberg sought the following relief:

(1) An order that, save by leave of the trial judge, the plaintiff will not be permitted to lead any oral evidence from a witness the substance of which is not set out in a statement of evidence of the witness which has been served in accordance with orders made in this proceeding.

(2) An order that, save by leave of the trial judge, the plaintiff will not be permitted to call certain former officers of AWB as witnesses at the trial of the proceeding.

(3) An order that the plaintiff file and serve a consolidated list of documents which it proposes to rely on at the trial of the proceeding which complies with a set of criteria set out by Mr Lindberg.

(4) An order that, save by leave of the trial judge, the plaintiff will not be permitted to rely at trial on any documents not included in the consolidated list of documents.

(5) An order that the plaintiff pay the defendant’s costs of the application.

At the hearing the application, the plaintiff said that it did not intend to call the former officers referred to in (2) and had written to Mr Lindberg saying that.[1] In the circumstances I do not propose to make the order sought.
[1]Transcript 5 October 2009 (Tr), 83.

The plaintiff has served on the Mr Lindberg a list of document entitled “plaintiffs second interim list of documents – 25 September 2009”. It is about 26 pages long. At the hearing of the application, the plaintiff agreed that it would separate out from the current list of documents…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re AWB Limited (No 8)

Details

AGLC: Re AWB Limited (No 8) [2009] VSC 469
Case: [2009] VSC 469
Decision Date: 16 October 2009

CaseChat Overview and Summary

In the matter of AWB Limited, the Australian Securities and Investments Commission (ASIC) sought civil penalty proceedings against the company. The dispute centred around the appropriateness of statements of evidence led by ASIC, specifically whether the substance of relevant conversations should be provided and if a list of documents to be relied on by ASIC was adequately formatted. The case was heard in the Federal Court of Australia.

The primary legal issues before the court involved the admissibility of certain statements and the format of the document list ASIC intended to rely on. The court was tasked with determining whether the evidence provided was sufficient and properly formatted, and whether it was premature to predict the admissibility of the evidence or the granting of any relief. This required a careful analysis of the procedural requirements and the rules governing evidence in civil penalty proceedings.

The court held that it was not appropriate to determine whether the substance of the relevant conversations should be given or if the list of documents was in the correct form at such an early stage. It was noted that the decision to admit or exclude evidence, as well as the granting of any relief, would depend on the specifics of the case as it progressed. The court concluded that it was premature to make any definitive statements on these matters before the full context and evidence had been presented. The proceedings were left to continue with the understanding that further rulings would be made at the appropriate time.

No specific final orders were made in this part of the proceedings, as the matter was still in its preliminary stages. The court's decision allowed the case to proceed, with the understanding that further rulings would be made as the case developed.

Orders