Westpac Banking Corporation ACN 007 457 141 v The Bell Group Ltd ACN 008 666 993 (in Liq) [No 2] - [2009] WASCA 223

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WESTPAC BANKING CORPORATION ACN 007 457 141 & ORS -v- THE BELL GROUP LTD ACN 008 666 993 (IN LIQ) & ORS [No 2] [2009] WASCA 223

CORAM: WHEELER JA

HEARD: 30 OCTOBER 2009

DELIVERED : 14 DECEMBER 2009

FILE NO/S: CACV 52 of 2009

BETWEEN: WESTPAC BANKING CORPORATION ACN 007 457 141 & ORS
First to Twentieth Appellant
AND
THE BELL GROUP LTD ACN 008 666 993 (IN LIQ) & ORS
First to Thirtieth Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :OWEN J
Citation  :THE BELL GROUP LTD (IN LIQ) -v- WESTPAC BANKING CORPORATION [No 9] [2008] WASC 239
File No  :CIV 1464 of 2000

Catchwords:

Appeals - Case management principles - Complex appeals - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 1 r 4B
Supreme Court (Court of Appeal) Rules 2005 (WA), r 5(1), O 32(4)(b), r 43(2)(f), r 47(2)

Result:

Directions made

Category: B

Representation:

Counsel:

First to Twentieth Appellant : Mr D E J Ryan SC,
Mr H K Insall SC and
Mr M C Goldblatt

First to Fifth Respondent : Mr E M Corboy SC and
Mr S M Davies

Sixth and Twenty-ninth Respondent : Mr N J O'Bryan SC and
Mr A A D'Arcy

Seventh to Twenty-eighth : Mr E M Corboy SC and
and Thirtieth Respondent : Mr S M Davies

Solicitors:

First to Twentieth Appellant         :        Freehills
First to Fifth Respondent  :        Blake Dawson
Sixth and Twenty-ninth Respondent         :        Lipman Karas
Seventh to Twenty-eighth   :        Blake Dawson
and Thirtieth Respondent

Case(s) referred to in judgment(s):

CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Fox v Percy [2003] HCA 22; (2003) 213 CLR 118
Retail Equity Pty Ltd v Custom Credit Corporation Ltd (Unreported, WASCA, Library No 8875, 23 May 1991)
The Australian Metropolitan Life Assurance Co Ltd v Ure (1923) 33 CLR 199
The Bell Group Ltd (In Liq) v Westpac Banking Corporation [No 9] [2008] WASC 239

WHEELER JA: These are my reasons for making certain directions in relation to the length and format of grounds of appeal and of cross‑appeal, and of written submissions on the appeal and cross‑appeals, which are set out below. The orders take a somewhat unusual form. I also make orders in relation to a timetable for the filing of certain documents. It is necessary to explain why the orders have taken the unusual form that they do.
The trial from which this appeal is brought involved 404 days of hearing, over the period 22 July 2003 to 22 September 2006. The reserved decision was published on 28 October 2008 (The Bell Group Ltd (In Liq) v Westpac Banking Corporation [No 9] [2008] WASC 239). The total number of pages in the published version of the reasons is 2,643. The trial involved 166 witnesses, of whom 155 were called and cross‑examined, one was called and not cross‑examined, and the remainder gave evidence by way of written statements. Over 86,000 pages of documents were tendered in evidence, although fewer than a third of those were referred to during the course of closing submissions. The total number of pages of written closing submissions was 36,932. So far as this court was concerned, the need to deal with the hearing meant that a very experienced trial and appellate judge was unavailable for other work (save for a very limited number of days) for many years. Public resources involved also included very substantial IT expenditure, support staff for the judge, and court, chambers and office space.
Looking at the scope of the appeal, the impression which I gained from the grounds of appeal and from the grounds of cross‑appeal was that the parties essentially wished to have the trial all over again, although now without witnesses. It was conceded by counsel for the appellants at a directions hearing on 30 October 2009 (without dissent from any party) that "all of us wish to re‑agitate virtually the entire matter" (ts 170), and "all of the issues are back on the table" (ts 175). Perhaps because of the very large sums involved, the parties appear to be replicating, in their approach to this appeal, the approach taken at trial, which was described by senior counsel for the appellants in these terms (ts 173):
One never knows, with respect, what may seem to a trial judge not to be really contentious but the parties don't care to take the risk.
Both counsel for the appellants and counsel for the respondents (by which term, unless indicated otherwise, I mean the first to fifth and seventh to twenty‑eighth and thirtieth respondents) stressed that they had a "statutory right" to an appeal "by way of rehearing". That is correct. However, that does not necessarily mean that the parties are entitled to re‑agitate every aspect of the trial at whatever length and in whatever detail they consider appropriate.
There is a tension between the central task of an appellate court as directed to the correction of error, and the function of such a court, on an appeal by way of rehearing, to examine and weigh the record and reach its own conclusions. There are three related issues of principle to which it is necessary to refer in this context.
The first principle to note is that the responsibility for a rehearing places on the appeal court a necessity, subject to submissions of the parties, to re‑examine the record and, within the confines of the notice of appeal, to conduct a real review of the trial, to weigh conflicting evidence and draw its own inferences and conclusions (Fox v Percy [2003] HCA 22; (2003) 213 CLR 118 at [25] ‑ [28]). In the present case, the trial judge noted at [1049] of his Honour's reasons that demeanour was important in "very few" instances, and recorded his view that most witnesses did their best to present a "reasonable" account of events, although his Honour considered that the reliability of that account was sometimes a different matter (at [1052]). For that reason, and because the witnesses were largely endeavouring to recall matters which had occurred 15 to 20 years previously, his Honour placed "particular emphasis" on contemporary documents, and wherever possible looked at the documents first and endeavoured to assess the witnesses' testimony against the written record (at [969]).
The first principle is one which is of considerable importance in this case, and is one upon which a great deal of reliance was placed by both the appellants and the respondents. This appeal will necessarily involve a re‑examination of the trial record by the Court of Appeal itself in order to draw its own conclusions. Although I have mentioned that that task will be performed within the confines of the notice of appeal, where, as here, the respective notices of appeal and cross‑appeal effectively raise almost every issue in the trial, that is not a qualification which will be of much significance.
However, the second principle is that which requires an appellate court to recognise that even where matters of credibility (in the sense of an assessment of truthfulness drawn from demeanour) have not played a substantial role in a trial, there will be a real, although subtle, advantage enjoyed by a trial judge. Kirby J in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 noted (at [17]) that the "limitations" introduced into a rehearing based on the record of the trial are those necessarily involved in that form of procedure. Not all considerations which have influenced a trial judge will be adequately reflected in the recorded transcript, and the primary judge enjoys advantages in the opportunity to consider and reflect upon the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole.
Considerations of the kind mentioned are of particular significance where, as here, a trial has unfolded over a very long period of time. A judge who has had submissions and evidence unfold before him for 404 days will necessarily appreciate, in a way that an appellate court never can, precisely what considerations the parties or the witnesses appear to have regarded as most critical. The assessment of evidence in such a case will necessarily be influenced by its "fit" with much other evidence, only some of which will be so important that the trial judge specifically refers to it. By way of example, in the present case at [4966], in discussing the questions of directors' knowledge, his Honour noted that there were some matters in relation to which there was "little dispute". It may be that that impression is able to be justified by pointing to a particular portion of the submissions. It is equally likely, however, that it is an impression which his Honour gleaned from the frequency with which disputes about those issues arose, or did not arise, the length at which argument was developed, and even the demeanour of counsel in developing argument or of witnesses in making certain assertions. Unless there is a clear record of a concession that matters are undisputed, or an equally clear assertion that a dispute is critical to a party's case, an observation of that kind by the trial judge in a matter such as the present is one with which an appellate court is ill‑placed to agree or disagree. At present, the parties appear to me to be reluctant to concede that his Honour enjoyed any real advantage at all; rather, they appear to assume that because his Honour made few findings specifically based on "credibility" in the strict sense, then no deference at all ought be accorded to his findings of fact.
Finally, there is, of course, an important case management principle, or perhaps more correctly, an important set of principles which underlie case management, to which it is necessary to have regard, particularly in appeals of this kind. Access to justice is essential for the functioning of a society based upon the rule of law. Court resources are expensive, and demands upon them are increasing. It is vital that courts ensure that public resources are applied in the best and most efficient means possible, and the way in which parties to a dispute seek access to the resources of the courts is something which the courts have a right not only to monitor, but, if necessary, to control. Considerations of that kind underlie the jurisdiction conferred on a single judge by the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules), r 47(2) to make any order that "will or may facilitate the appeal ... being conducted and concluded efficiently, economically and expeditiously". To similar effect is O 1 r 4B of the Rules of the Supreme Court1971 (WA), with which the Court of Appeal Rules are to be read (r 5(1)).
I have not formed the view that any party, or any counsel involved in this appeal, wishes to waste the court's time or public resources. I accept that all those involved in this appeal have genuinely endeavoured to present their grounds of appeal, and will endeavour to present their submissions, in a way which will be comprehensible both to the other parties and to the court, and in a way which they consider will do no more than present effectively matters they wish to raise. I note that no party, except for the sixth and twenty‑ninth respondents, suggests that the grounds of appeal of the other parties, or the length of submissions which the other parties propose, are in any way excessive or unnecessary.
Nevertheless, I am of the view that the claims which the parties presently propose to make on the resources of the court are excessive, and that they are not necessary for the fair disposition of this appeal. There are obvious reasons why that might be so, even where a party is not intending to be wasteful of resources. Pragmatically, wherever there has been a long and complex trial, even if it is followed by a relatively lengthy appeal, the costs of the appeal are significantly less than the costs of a trial. That will, no doubt, be so in the present case. It is difficult in that situation for even the most conscientious of counsel not to be unconsciously influenced by the consideration that adding another dozen or so grounds of appeal will be but a drop in the ocean when compared with all the expenditure that has gone before. Further, I have noted in relation to the trial that the parties here appear to have taken the view that they did not wish to take the risk of abandoning any point which might attract the trial judge. Where, as here, a very great deal of effort has been put into litigation and there are substantial sums at stake, one can understand that the parties are reluctant to abandon any possible point on an appeal, however limited its merit may be. In the present case, submissions made to me suggest that the parties also are concerned (no doubt based upon experience at trial) about the possibility that other parties will be very quick to complain if they perceive an attempt by a party to restate a point in terms which differ from a ground of appeal. There is therefore a natural tendency to state grounds as broadly as possible, and to restate them in many different ways, so as to avoid any possibility of being shut out from arguing a point which is fairly arguable. While I understand these concerns, it is my view that the parties in this case need to make a much greater effort to identify those issues upon which they are really likely to succeed, to bring those to the attention of the appellate court, and, even if they cannot bear to sacrifice others, to identify where, in the hierarchy of arguable points, those others lie.
In order to flesh out the observations above, I turn briefly to deal with the grounds of appeal. I do not set out, or attempt to summarise, the issues at trial. I assume that any reader of these reasons is familiar with, or has access to, the decision appealed from.
The appellants have filed 144 grounds of appeal, of a generic kind. By "generic" I mean that they apply to all appellants. Ground 109 of those grounds, however, consists only of a reference to another set of documents. In those documents, for each individual appellant bank there is a set of grounds dealing with his Honour's findings in relation to the knowledge of that bank. Grounds in relation to individual banks have a considerable degree of commonality, but are not identical in each case.
There are a number of difficulties with the grounds. The major difficulties, it seems to me, are the following. A number of the grounds do not comply with r 32(4)(b) of the Court of Appeal Rules which provides that grounds must not merely allege that the primary court erred in fact or in law. It also requires the grounds to state "concise particulars", as to which, see Retail Equity Pty Ltd v Custom Credit Corporation Ltd (Unreported, WASCA, Library No 8875, 23 May 1991) per Malcolm CJ at 14 ‑ 16 (Pidgeon and Nicholson JJ agreeing). It appears to me that a significant number of the grounds are couched at a very great level of generality, so that it is not possible to understand what they are really complaining of. Other grounds are more in the nature of a list of findings or conclusions complained about, rather than containing any identification of an error in relation to the conclusion or finding. Generally, the grounds are prolix, repetitive and overlapping, so that it is difficult to discern what point is being made by any individual ground, seen in its context. Some grounds appear to be "makeweights".
In order to understand what follows, I should note that earlier directions required each party to identify, in relation to each ground, the paragraphs of his Honour's reasons which contain findings which are said to be in error, in relation to each ground.
Ground 1 reads:
[5923], [5950], [6041], [6068], [6080], [6089], [6096], [6101], [6110], [9745].His Honour erred in mixed fact and law in finding that the directors of each corporate respondent:
1.1breached their duty to act bona fide in the best interests of that corporate respondent [5923], [5950], [6080], [6089], [6096], [6110], [9745]; and
1.2breached their duty to act for proper purposes [6041], [6068], [6080], [6089], [6101] [6110], [9745],
1.3in causing such corporate respondent to enter into its respective Transactions.
I understand it to have been conceded by counsel for the appellants that this is at too great a level of generality. It does not in any way explain what was the error of law, what facts his Honour found that he should not have found, what facts he failed to find that he should have found, how he misunderstood or misapplied relevant principles, and so on. It is not, strictly speaking, a ground at all.
Ground 2 reads:
[5371], [6039], [6040], [6045], [6052], [6059], [6096], [6097], [6110]. His Honour erred in mixed fact and law:
2.1in finding that, as at the time of causing the corporate respondents to enter into the Transactions, the directors had failed to consider the interests of each corporate respondent [6039], [6040], [6096], [6110];
2.2in finding that at the time the Transactions were entered into, the directors did not have a plan to restructure the companies in the Bell Group [6039], [6052];
2.3in finding that, at the relevant time, the directors breached their fiduciary duties because their view that the Banks would release sufficient funds to conduct the group while the restructure was under consideration was not based upon reasonable grounds [5371], [6059];
2.4in failing to find that, to the extent the directors did breach any duties, they were duties to exercise care and skill, rather than any fiduciary duties [6039], [6045], [6097].
In form, this is simply a list of findings which the appellants do not like. It does not necessarily identify what it is about the findings that the appellants do not like. Ground 2.3, for example, may be a complaint about his Honour's finding of an absence of reasonable grounds for the belief there referred to, or it may perhaps be a finding that, having a belief of that kind, when it was not based upon reasonable grounds, should not have been characterised as a breach of fiduciary duty. Ground 2.4 tends to suggest the latter characterisation, but that is not clear. In any event, apart from the alternative characterisation suggested by ground 2.4, there is no identification of what it is about the findings listed in ground 2 which is said to be erroneous.
Ground 3 reads:
[4597] [4615], [5923], [5926], [6059], [6088], [6089], [6091], [6092]. His Honour erred in mixed fact and law in finding that the directors' beliefs that the Transactions were in the best interests of the corporate respondents were not reasonable beliefs.
Again, no particular error of law or fact is identified. I should also note that I have examined each of the individual paragraphs of his Honour's reasons which is referred to in ground 3, in a search for some clue to the precise identity of the error there complained of. It is by no means clear to me that any of those paragraphs accepts the premise that the directors' beliefs were that the transactions were in the best interests of each of the corporate respondents. Leaving that aside, it is difficult to see how some of the paragraphs identified could contain any error. Paragraph [4597], for example, simply quotes some observations of Rich J from The Australian Metropolitan Life Assurance Co Ltd v Ure (1923) 33 CLR 199 concerning the contents of directors' duties. Some paragraphs referred to contain propositions of law and others contain conclusions of fact. They deal with a variety of topics. The ground gives no hint as to which of these various matters is in error. So far as [6088] is concerned, it should be noted that, although it forms part of ground 3, it is attacked in numerous other grounds.

Overlap is evident between ground 3 and grounds 6, 14, 15, 20, and 33. All, at bottom, appear to complain about his Honour's conclusion that the fiduciary duties of directors required them to identify the creditors of individual companies, consider the effect of the transactions on those creditors, and prepare a plan with sufficient precision to deal with the longer‑term problems of the companies. Although the findings are characterised in slightly different ways in relation to each of the grounds, none of the grounds identifies what it is that is said to be wrong with them.
Ground 17 reads:
[6110].His Honour erred in fact and in law in making the findings in [6110] of his judgment.
Paragraph [6110] is plainly a summary of findings. If there is an erroneous reasoning process which led to those findings, it can only be in other, unidentified, paragraphs. It appears to be a "makeweight" ground. Another example of a "makeweight" ground or perhaps simply of a ground which misrepresents his Honour's reasons, or that may be merely worded ambiguously, is ground 7. It reads:
[5486], [5924], [6069] ‑ [6071], [6091], [6092], ]6098], [6110.7], [6122] ‑ [6127]. His Honour erred in mixed fact and law in finding that Mitchell and Oates breached their fiduciary duties to each of the corporate respondents by reason of their involvement in and a focus on BCHL in circumstances where his Honour did not find that such involvement led to any conflict of interest in their activities as a [sic] directors of companies in the Bell Group or that they used their position as directors of companies in the Bell Group to gain an advantage for BCHL or its related entities.
It may be that the point of ground 7 is the assertion that a director does not breach his or her fiduciary duties by reason only of the fact that the director is involved in and focused upon another company in a group, in circumstances where that involvement leads to no conflict of interest and no use of the position as director of the group companies in order to gain an advantage for the company upon which the director is particularly focused. That is an intelligible proposition. The problem with it as a ground of appeal is that his Honour does not seem to me, in any of the paragraphs referred to, to have found solely by reason of involvement in and focus on BCHL, that Mitchell and Oates breached their fiduciary duties. Rather, that involvement and focus seems to have been a factor which assisted him in arriving at the conclusion that Mitchell and Oates failed to have regard to the interests of individual companies; that is, it was something which his Honour saw as explaining or leading to, rather than itself as constituting, a failure to have regard to the interests of individual companies.
I have not overlooked the appellants' "Explanation and Further Particulars" document. However, it was filed after the date for grounds of appeal had passed. Explanation and support of the grounds is now a task for submissions, not for substituted or expanded grounds.
The first to the fifth and seventh to twenty‑eighth and thirtieth respondents have a more limited number of grounds of appeal. They have filed 141 "generic" grounds of cross‑appeal. There are also, however, 128 grounds of cross‑appeal which deal with individual banks.
The respondents' grounds, overall, appear to have more precision than those of the appellants, but suffer from many of the same difficulties.
I set out only the first five, and part of the sixth, "generic" grounds of cross‑appeal:
1.[3243], [3278], [3281], [3286], [3382] and [4252] - [4256] The learned trial judge erred in law and in fact in finding that each of the on‑loan contracts was an express contract, probably oral, with an inferred term arising from a mutual understanding or agreement or from a manifested mutual assent or presumed intention subordinating the BGNV on‑loans on the same terms as those on which the BGNV bonds were subordinated.
2.[3380], [3381] and [3286] Having found at [3133] and [3135] that no relevant decision‑maker actually turned his mind to the terms of the on-loans (and also at [3267], [3269] and [3379]), the learned trial judge erred in law and in fact in finding that a term providing for subordination of the BGNV on-loans could be inferred into each of the BGNV on‑loan contracts. The learned trial judge ought to have held that, as a matter of law, it was not possible to find that inferentially each of the on-loans contracts contained a term concerning a matter to which the parties had not turned their minds and to which, consequently they had given no consideration. The learned trial judge ought to have further found that as a matter of fact, the parties to the on-loan contracts could not have formed an understanding or reached an agreement about or manifested an assent to or made a decision concerning a matter to which they had not turned their mind and consequently, to which they had given no consideration.
3.[3243] and [3278] The learned trial judge erred in law and in fact in finding that BGNV was party to a tacit understanding by which a contract of loan with inferred terms as to subordination came into being.
4.[3380] and [3381] In determining the objective mutual assent or intention of the parties in relation to the BGNV on-loan contracts, the learned trial judge erred in law and in fact in that his Honour:
(a)took into account findings as to the subjective knowledge and understandings held by individual Bell group officers that were not relevantly communicated;
(b)relied on documents from which no conclusion could properly be drawn as to the parties' mutual assent or intention regarding subordination of the BGNV on‑loans.
5.[3135] The learned trial judge erred in law and in fact in finding that Griffiths, Studdy, Cahill and Williams understood that the proceeds of the issues were subordinated debt of the NP group and that this was relevant to the objective determination of the mutual assent or intention of the parties to the BGNV on‑loan contracts in circumstances where:
(a)none of them turned their mind to the nature and terms of the on‑loans;
(b)the evidence did not allow his Honour to determine the time at which each individual held the purported state of mind and in particular, whether the purported understanding was formed in and against a different factual context; that is, the context prior to the decision being taken to use an off‑shore issuer and to split the issue;
(c)the evidence as to the purported states of mind of individuals was not reliable because it was hypothetical; coloured by hindsight and explicable by reference to matters unconnected with the BGNV on‑loans.
6.[3107], [3112] ‑ [3117] and [3135] The learned trial judge erred in fact in finding that Griffiths was a decision‑maker and that his state of mind was to the effect that he understood that the proceeds of the issues were subordinated debt of the NP group.
Particulars
...
(iii)Those findings were inconsistent with his Honour's finding at [3096] that Griffiths was not a decision‑maker, his role was to recommend but not to decide.
...
Again, ground 1 is extremely broad, complains of a finding (which is paraphrased, and drawn from a number of paragraphs of the judgment) and does not identify which particular aspect of the finding is complained about, let alone identify what it is that is erroneous about it. Again, as with the appellants' first ground of appeal, I understood counsel for these respondents to concede that the ground was not really a ground at all.
It was further conceded, as I understood it, that grounds 2 and 5 essentially dealt with the same point. As I understood it, ground 5 is really an identification, or intended to be an identification, of the asserted erroneous process of reasoning which led his Honour to make the finding which is the subject of the complaint in ground 2. It should be noted that ground 5(c) does not identify the matters by reference to which the evidence concerning purported states of mind is asserted to have been explicable. As I understand it, it was asserted that ground 4 also identifies an error in relation to the finding of the same contractual term as is complained of in ground 2. Ground 4(b), it should be noted, also does not identify the documents which were allegedly erroneously relied upon. Ground 3 seems to be an assertion that there was an error in finding that BGNV was a party to the contract complained of in relation to the other grounds.
Ground 6(iii) is an example of a tendency to "verbal" his Honour, in which the respondents are not alone. The finding at [3096], referred to in ground 6(iii), was not a positive finding that Griffiths was not a decision‑maker, nor a finding that the "role" of Griffiths was to "recommend but not to decide". Rather, the paragraph simply contains a finding that a decision was made "acting on the advice and recommendations of Griffiths". It is, of course, perfectly possible for a person to be effectively a decision‑maker, even if others are formally required to approve recommendations which that person makes. Whether the evidence would support a conclusion of that kind in relation to Griffiths, I have not endeavoured to ascertain. However, I mention this matter, because it seems to me to be an example, as is ground 22 of the appellants' grounds (assuming that the point of the latter is contained in the words "regardless of the beliefs of the directors"), of a matter which would not be put forward if the appellants and the respondents were required to identify the grounds upon which they really expect to succeed.
The sixth and twenty‑ninth respondents have 32 grounds of cross‑appeal. Some of these (such as grounds 1 and 9) merely complain, in broad terms, of errors which are identified in other grounds. Obviously, however, 32 grounds is a relatively manageable number. The grounds which I would regard as the "real" grounds (that is, those which identify error rather than merely complaining of a finding) appear to be reasonably intelligible. These grounds alone would not warrant the making of further orders. Nor would the respondents' notice of contention.
Having raised my concerns with the parties at the directions hearing on 30 October 2009, I was advised that the parties wished to co‑operate with the court and it appeared that they did not object to suggestions I made which might involve restructuring of the grounds and/or identification of grounds which the parties regarded as, in effect, their "best" grounds. At the directions hearing, I also invited the parties to provide me with examples of the sorts of written submissions they wished to make. I did so because it seemed to me that the parties were proposing written submissions which were excessive in length. The respondents suggested, for example, that the appellants should file written submissions in‑chief "not exceeding" 1,750 pages, submissions in response not exceeding 2,000 pages and in reply not exceeding 250 pages, a total of 4,000 pages. The appellants suggested that the appellants should file only written submissions in‑chief and in response, but suggested a total of 5,500 pages. These are extraordinary numbers. They significantly exceed the total number of pages in the reasons for decision (which total includes lists of authorities and a detailed schedule of contents). Their scope can be appreciated when, for example, it is remembered that the learned authors of Meagher, Gummow and Lehane's Equity Doctrines and Remedies (4th ed, 2002) have managed to summarise the complexities of the law of equity in Australia in fewer than 1,200 pages (excluding index).
I have read the drafts of the various submissions provided by each of the parties by way of example. While I would not regard them as excessively verbose, it is fair to observe that the submissions are developed in an extremely comprehensive way, with detailed introduction which tends to summarise at some length findings made by his Honour. Summaries of that kind are rarely useful, since it will always be necessary for the court to look at what the trial judge actually said. There is also some tendency, in my view, for the submissions to advance again arguments which one imagines may well have been made at trial, without really grappling with the way in which his Honour dealt with issues. For example, the submissions refer at a number of points to the failure of the respondents to call witnesses (a point raised in the grounds of cross‑appeal concerning individual banks). His Honour pointed out in his reasons that, in a trial of this length and complexity, it was not possible to call every witness who might be thought to have something to say in relation to a particular matter. It would be necessary against that background, before submissions had any persuasive force, for them to explain why the particular witness was so essential that it was necessary that the witness be called, notwithstanding the obvious need to finalise the trial within his Honour's lifetime.
It will appear from my earlier comments concerning the grounds of appeal that I am not persuaded that all of them need to be developed in the detail found in the draft submissions provided to me. Further, I am inclined to the view that the draft submissions themselves could be pruned from their contemplated form, without losing any coherence.
I have reached the view that it is necessary that firm measures be taken at this stage to keep the appeal within reasonable bounds. That is necessary not only in the public interest, for the reasons already noted; it is also in the interests of justice as between the parties. An appellate court which is forced to grapple with grounds which are overlapping, diffuse, unfocused, and which result from a desire to abandon no point (however unlikely the point is to succeed) is more likely to overlook or fail to deal adequately with a point of real significance, than a court which has been assisted by prior work on the part of the appellants and respondents in prioritising their grounds of appeal, assessing the real significance of each, and focusing sharply upon those which they assess as having a real prospect of success.
It is not for me to tell the parties which of their grounds are good grounds, and which are not. While I have read his Honour's reasons, the grounds of appeal, the draft submissions, and the various other documents filed for my assistance, my understanding of the case is superficial compared with that of the parties. Further, a single judge of appeal has no power to strike out a ground of appeal unless satisfied that ground "does not have a reasonable prospect of succeeding" (Court of Appeal Rules, r 43(2)(f)). Going through all of the grounds of appeal and of cross‑appeal in order to ascertain what they mean, inviting submissions in relation to all of them, and forming a view as to which have a reasonable prospect of succeeding is a task which, in itself, would involve an undue use of public resources, in the form of my time and associated costs. I can confidently predict that any decisions I might make in that regard would, in any event, be the subject of an appeal, so that it is highly unlikely that any public resources would ultimately be saved by such a course.
It is open to me, however, to make orders which will assist the parties in focusing their attention on the real points in issue. I propose to order that each of the appellants, respondents, and sixth and twenty‑ninth respondents, file and serve a summary of their grounds of appeal, or cross‑appeal, as the case may be, not to exceed 12 pages in length. The appellants have already performed that task and, as an index or road map to the grounds of appeal, it is a useful document. Those documents will be bound in the appeal books, preceding the grounds of appeal to which they relate. I do not anticipate that order will cause any difficulty to any party.
The proposed order upon which it will be necessary for the parties to expend significant effort is that each of the parties identify a limited number of grounds of appeal as being their "best grounds". They may choose, in doing so, to identify the grounds which they consider have the greatest prospects of success. They may also, if they choose, identify within that category, grounds in relation to which they consider they must succeed, in order to succeed in the appeal or cross‑appeal, even if those grounds do not have the strength of other grounds.
No doubt, there is a more useful expression than "best grounds", but it will be adequate for its purposes. Those purposes are twofold. First, to ensure that the parties have, in fact, performed the task of assessing the basis upon which they consider they are likely to succeed, as opposed to merely identifying arguable points upon which they lost below and which they would like to re‑agitate, or weak points which they hope, but do not expect, might attract the attention of one or more appellate judges. The second purpose is to enable those judges hearing the appeal to prepare for it in a sensible way by being informed clearly, well in advance, about the key issues in the appeal.
It may be that, at a later stage, either a single judge, or the judges hearing the appeal, may consider it desirable to give directions limiting oral argument to the "best grounds" so identified, or limiting argument in some other way. However, that, I think, will be a matter for consideration once the grounds have been identified.
So far as the appropriate number of such grounds is concerned, my assessment of the notices of appeal and cross‑appeal suggests that there would be in each approximately 25 grounds, properly so‑called, of real substance. The parties are therefore to identify their 25 "best grounds". Those grounds are to be designated by an asterisk in the notices of appeal and cross‑appeal proper, and a separate document containing only the asterisked grounds is to be filed and bound in the appeal book immediately following the summary document to which I have referred, and immediately preceding the notices of appeal proper.
In relation to the notice of appeal, I refer only to what I have described as the "generic" notices of appeal and cross‑appeal. So far as the individual grounds relating to each bank are concerned, the appellants and the respondents are to identify, in each case, no more than three "best grounds".
For the sake of completeness, I should make it clear that the orders which I make do not involve any redrafting of the grounds of appeal, or of the grounds of cross‑appeal. No leave has been given for amendment, save that in relation to ground 77A of the appellants' grounds of appeal, which I am informed was omitted by mistake, the appellants may take this opportunity to incorporate it in their grounds. While I have been critical of the grounds, it is my view that the progress of this appeal will best be assisted by the identification of issues and the drafting of submissions, rather than by endless redrafting of the grounds. An observation I would make in this context, however, is that it would be unwise of any party to identify as one of its "best grounds", a ground as broad and unintelligible as ground 1 of each of the notice of appeal and of cross‑appeal. Identification of grounds of that kind would not assist the court in understanding the real issues, and it may be that, at some future stage, if grounds of these type were "best grounds", it would be necessary to give some attention to the possibility of striking them out.
So far as the length of submissions is concerned, 20 pages per ground would, in my view, be adequate to develop the majority of the grounds of appeal in reasonable detail. Multiplying that by the 25 "best grounds", gives a figure of 500 pages. Allowing 140 pages for all the other grounds put together, and 60 pages for all of the individual banks, gives a total of 700 pages. However, what I have described is merely a method of calculation. I do not prescribe the way in which the parties organise their written submissions. If they choose, at one extreme, to develop one ground for 500 pages and deal with all the rest in the remainder, or if they choose to allocate their allowance equally between all the grounds in the notices of appeal and cross‑appeal, that is up to them.

The orders, however, will be that the parties file written submissions in support of their appeal, or cross‑appeal, not exceeding 700 pages in length. The responses to the appeal and the cross‑appeal should, in my view, be somewhat less in length, and I would allow 400 pages for each. The sixth and twenty‑ninth respondents appear, at present, to be taking a more concise approach to their appeals. However, the orders I make in relation to the other respondents will apply to them as well.
So far as dates are concerned, I am conscious of the fact that these reasons have taken longer to formulate than I had intended, and that it is now quite close to the court recess. I am informed that some counsel will shortly be unavailable. It would not, therefore, be appropriate to require any of the documents to which I refer to be filed early in the New Year.
The parties agreed that chronologies are unlikely to be useful, so I have made no provision for them. If, on reflection, the parties consider that chronologies, charts, or other aides‑memoire may be useful, they can produce them, exchange them, confer, and seek leave, at the next directions hearing, to include them in the appeal papers.
I have not, at this stage, listed a further directions hearing, although one could be held in April, if it should be necessary for any party to show cause why one or more grounds of appeal should not be struck out. Otherwise, the next directions hearing will be subsequent to 21 July 2010, and will deal with the contents of the appeal books, allocation of times for the hearing, and any other orders necessary to programme the appeal for hearing.
The orders, therefore, will be as follows:
1.On or before 2 April 2010, the parties file and serve:
(a)a further copy of the notice of appeal or cross‑appeal (as the case may be) which indicates with an asterisk not more than 25 grounds considered by them to be their "best grounds";
(b)in relation to each individual bank, a further copy of the notices of appeal or cross‑appeal, indicating with an asterisk, in respect of each bank, no more than three grounds identified by the appellants as their "best grounds" (appellants and first to fifth, seventh to twenty‑eighth and thirtieth respondents only);
(c)a summary of the grounds of appeal not to exceed 12 pages in length;
(d)a document entitled "Appellants'/Respondents'/Sixth and Twenty‑ninth Respondents' Best Grounds of Appeal" containing only the grounds indicated by an asterisk and referred to in orders (a) and (b) above.
2.On or before 30 April 2010, the parties file and serve:
(a)their written submissions, not to exceed 700 pages in length;
(b)a list of authorities, containing only authorities referred to in the written submissions, and indicating with an asterisk those authorities from which it is proposed to read.
3.On or before 30 June 2010, the parties file and serve their written submissions in response to the notice of appeal or notice of cross‑appeal (as the case may be), not to exceed 400 pages in length.
4.On or before 30 June 2010, the first to fifth, seventh to twenty‑eighth and thirtieth respondents file and serve written submissions in support of the notice of contention, not to exceed 50 pages.
5.On or before 21 July 2010, the appellants file and serve their written submissions in response to the notice of contention, not to exceed 50 pages.
6.On or before 21 July 2010, the parties file, after conferral, an agreed minute of proposed directions, or minutes of proposed directions for which each party contends.