Shafron v ASIC; ASIC v Shafron & Ors

[2011] HCATrans 292

[2011] HCATrans 292

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S173 of 2011

B e t w e e n -

PETER JAMES SHAFRON

Appellant

and

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Respondent

Office of the Registry
  Sydney  No S174 of 2011

B e t w e e n -

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Appellant

and

PETER JAMES SHAFRON

Respondent

Office of the Registry
  Sydney  No S175 of 2011

B e t w e e n -

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Appellant

and

GREGORY JAMES TERRY

Respondent

Office of the Registry
  Sydney  No S176 of 2011

B e t w e e n -

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Appellant

and

MEREDITH HELLICAR

Respondent

Office of the Registry
  Sydney  No S177 of 2011

B e t w e e n -

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Appellant

and

MICHAEL ROBERT BROWN

Respondent Office of the Registry
  Sydney  No S178 of 2011

B e t w e e n -

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Appellant

and

MICHAEL JOHN GILLFILLAN

Respondent

Office of the Registry
  Sydney  No S179 of 2011

B e t w e e n -

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Appellant

and

MARTIN KOFFEL

Respondent

Office of the Registry
  Sydney  No S180 of 2011

B e t w e e n -

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Appellant

and

GEOFFREY FREDERICK O’BRIEN

Respondent

Office of the Registry
  Sydney  No S181 of 2011

B e t w e e n -

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Appellant

and

PETER JOHN WILLCOX

Respondent

Directions hearing

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 24 OCTOBER 2011, AT 11.30 AM

Copyright in the High Court of Australia

HIS HONOUR:   Subject to the fact that Mr Walker is not appearing this morning, may I take the appearances as they appear on the Court list, rather than have counsel announce them separately.

Can we deal first with the question of order of addresses and time of addresses?  Registry has been supplied with a proposed order of addresses by Atanaskovic Hartnell.  The order of addresses is not something about which I want to raise any issue.  Does any counsel need to raise anything about order of batting, as distinct from questions of time?  No, very well.

The second thing to notice about timing is that the Court will sit on Thursday at 10 and since the Court will be sitting interstate on Friday, the Court will rise no later than 4.00 pm and when I say no later than 4.00 pm, that is an absolute immovable time.  So counsel will need to, I am afraid, order their affairs accordingly and evidently there is advantage to us if we have time – even if it is two minutes between the Court rising and having then to seek to move.  That obviously affects the manner of timetabling, but not its detail.  I understand there may be some issue, is there, about division of time.  Mr Solicitor?

MR GAGELER:   Yes, your Honour.  On our calculation we have 4 hours in‑chief, 1 hour in reply, a total of 5 hours.  The respondents collectively have 6.5 hours, an extra hour and a half.

HIS HONOUR:   Yes.

MR GAGELER:   We would wish to have somewhat more time in reply and see the appropriate principle as one of equal time or reciprocity.  Your Honour’s indication of sitting earlier gives us an extra 15 minutes in reply.

HIS HONOUR:   I am not sure – that would come about if, but only if, we sat short lunch on Thursday.  Now, that has been done in the past, but I must say at the end of an appeal of this kind – a series of appeals of this kind – the route march blisters begin to appear towards the end.

MR GAGELER:   Yes.  Your Honour, our point is really that an hour for reply seems a little short, given 6.5 hours of submissions of the respondents.

HIS HONOUR:   I must say to all counsel, I am troubled by the notion that work may be expanding to fill the time available.  Yes, there is a lot of detail in this case.  Yes, counsel want to have ample time and must have ample time to present their arguments.  It would be deeply unfortunate, though, if time were simply divided on the footing that it is available.  It is a question of what is needed.

As at present advised, Mr Solicitor, I am minded to leave the timetable substantially as it is and perhaps to review it at the close of play on Wednesday to see how we are going, but I think that certainly the order of addresses is undisputed and that is the way in which it will happen, but I would hope that we might, contrary to, no doubt, confident expectations at the Bar, actually catch up a bit of time as we go through this.  But let us see on Wednesday afternoon.

MR GAGELER:   If your Honour pleases.

HIS HONOUR:   May I then raise some practical questions – use of documents.  It will come as no surprise to anyone that there is a tendency to pull out, photocopy and keep separate documents which are seen as important documents.  One thing that cannot really be accommodated in this set of appeals, though, is if central documents are referred to according to different copies that appear through the appeal book.  Can we all work off the one copy, that is the one page of whatever are seen as central documents?

What do I mean by central documents?  They include – I am sure counsel will readily tell me that they are by no means limited to – the draft news release.  Is there some reason why we cannot work off a copy of that document as it appears at pages 2086 and 2087 of the appeal book?  The final media release – why should we not work off what appears at 2387, 2388?  I think it is Mr O’Brien’s submissions that have as an annexure the comparison between a draft and the final.  If we are to engage in a comparative exercise, is there some reason not to work off that version of the comparison?  If we are looking at the minutes, is there some reason not to look at the minutes that were annexed as annexure 1 to ASIC’s submission, the appellant’s annotated minutes of JHIL board meeting of 15 February 2001? 

What will not help is if every party decides it has its own little bundle of documents or own little source of documents to which reference is to be made.  So can we, between counsel, resolve that sort of question and informing that should be the notion that reference to other versions of the documents should be made only for good cause.

The third set of matters I wanted to raise is more difficult.  It is more difficult in its articulation because it is to direct the attention of counsel to some questions that may, may not be thought relevant to the way in which argument is presented.  I speak only for myself if I say that attention to the detail in this case may, perhaps – I do not know – run some risk of swamping an understanding of the general thrust of the case which each of the parties separately seeks to make.

So, this is at a very high level of generality and abstraction, the ASIC case places a deal of emphasis on the minutes.  I understand that.  The directors point to what they say are errors, inaccuracies in the minutes.  The directors point to the variations that are to be observed in the successive drafts of the media release, but it will be of assistance if, beyond simply pointing to the differences, placing the emphasis that counsel desire to place on any of these documents, there could be an articulation of how, for example, the variations in the release, what are said to be errors in the minutes, bear upon whether the directors assented at a meeting on 15 February to an announcement that the foundation had sufficient funds to meet all legitimate compensation claims anticipated and in that sense was fully funded, that is, beyond pointing to the matters of detail to which counsel wish to give emphasis, it would be of assistance if we understood with some clarity how those matters of detail bore upon what I have described as the more general thrust of the case that is to be made.

So, to take another example, maybe an example that counsel say does not arise - I do not know - but are we to proceed, for example, on the footing, having regard to what had happened at the January meeting, that the directors approved separation on the footing that the foundation would have sufficient funds to meet all legitimate compensation claims anticipated and in that sense was fully funded?

Now, it may be that that is to state a question that you say does not arise – I do not know – but these are matters to which it may be useful to draw attention now rather than in the course of the hearing.  Subject to those matters, are there aspects of this matter that counsel think should be raised now or could usefully be raised now?  I dare not say that silence betokens assent.  No, no applications?  Very well, adjourn the Court.

AT 11.43 AM THE MATTERS WERE ADJOURNED