Addenbrooke Pty Limited v Duncan

GILMOUR AND WHITE JJ: 5 In the judgment delivered on 16 May 2016 (Addenbrooke Pty Limited v Duncan (No 2) [2017] FCAFC 76) the Court, by majority, allowed in part Addenbrooke's appeal against the First Respondent (Mr Duncan) and dismissed its appeal against the Second and Third Respondents (Mr Gray and Southern Cross Equities Pty Ltd (SCE)). The first four orders made by the Court were as follows: 1. the appeal insofar as it concerns the claim made against the Second and Third Respondents be dismissed; 2. the appeal with respect to the dismissal of the claims against the First Respondent of misleading or deceptive conduct, unconscionable conduct and knowing involvement in the alleged misleading or deceptive conduct of Cascade Coal Pty Ltd (Cascade) be allowed and the order of dismissal be set aside to that extent; 3. the claims referred to in Order 2 be remitted for trial before another Judge; 4. the appeal with respect to the dismissal of the claim that the First Respondent was knowingly involved in a breach of trust by Cascade be dismissed. The remaining orders were directed to the manner in which the question of costs of the trial and of the appeal would be addressed. 6 By an interlocutory application lodged on 30 May 2017, Mr Duncan has sought an order as follows: 1. That, pursuant to sec 28(1)(c) of the Federal Court of Australia Act 1976, the Court direct that the retrial of the claims against the first respondent of misleading or deceptive conduct, unconscionable conduct and knowing involvement in the alleged misleading or deceptive conduct of Cascade Coal Pty Ltd referred to in order 3 of the orders of Dowsett J, Gilmour J and White J made 16 May 2017 (the retrial) be conducted on the basis that: 1.1 the retrial be dealt with on the papers; 1.2 the retrial is to occur on the basis of evidence tendered at the trial; 1.3 that the appellant and the first respondent are not entitled to rely in the retrial on any further evidence which was not tendered at the trial. 7 In addition to this order, Mr Duncan also sought the listing of the matter for the hearing of oral submissions on the question of costs. 8 The Court was informed that Mr Duncan had amended the interlocutory injunction but no amended application has been filed. Nothing turns on this as it seems that the only intended amendment was to include in the first line a reference to s 30 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) as an alternative to s 28(1)(c). 9 On 1 June 2017, the Court made orders by consent in relation to the costs of Mr Gray and SCE. Those orders finalised the appeal concerning Mr Gray and SCE. 10 This judgment concerns three matters: (a) a request by Mr Duncan that the Court "clarify" the provision pursuant to which it made the third order of 16 May 2017; (b) the application of Mr Duncan for orders in relation to the manner in which the trial is to be conducted on the remittal; (c) the issues of costs as between Addenbrooke and Mr Duncan.

The request for clarification 11 Mr Duncan sought clarification of the power exercised by the Full Court when ordering the new trial. He referred to the powers vested expressly or implicitly in the Court by s 28(1)(c), s 28(1)(f) and s 30 of the FCA Act which provide (relevantly): 28 Form of judgment on appeal (1) Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction: … (c) set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit; … (f) grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial; … … 30 New trials (1) In an appeal in which the Court grants a new trial, the Court may impose such conditions on a party, and may direct such admissions to be made by a party, for the purpose of the new trial as are just. (2) Where the Court grants a new trial in a suit, the Court: (a) may grant it, either generally or on particular issues only, as it thinks just; and (b) may order that testimony of a witness examined at the former trial may be used in the new trial in the manner provided in the order. 12 Mr Duncan's request for clarification seems to have had its genesis in the words used in Order 3 that the identified claims "be remitted for trial" before another Judge, whereas s 28(1)(c) uses the word remit without the word trial, and s 28(1)(f) uses the term "new trial" but not the word "remit". He also noted that, if the Order was made pursuant to s 28(1)(c), then the Court was empowered to make the remittal "subject to such directions as [it] thinks fit" whereas if the order for the retrial was made pursuant to s 28(1)(f), the Court was empowered by s 30 to impose "such conditions on a party" as are just and, further, had the power vested by s 30(2). 13 In our opinion, the Court should, for a number of reasons, decline to provide the "clarification" sought. 14 First, the Court's reasons speak for themselves. The Court should not be asked now to elaborate on its reasons. 15 Secondly, either the Court had the power to order that the identified claims be remitted to trial before another Judge, or it did not. What the Court may now say on this question will not alter that circumstance. 16 Thirdly, even if the Court was to nominate a particular source of power, it would not preclude the order being justified by another available source of power. Accordingly, there is no apparent utility in providing the clarification sought. 17 Fourthly, it was not suggested that the Court should provide the clarification sought as a necessary integer of determining the application of Mr Duncan in relation to the manner in which the retrial should be conducted. Nor did counsel for Mr Duncan suggest that the provision of the clarification would make a practical difference. On the contrary, counsel appeared to acknowledge that it would not when he said: Now, it may be this is all a bit of a distinction without a difference because, either way, the Court has the power to make directions itself as to how the new trial … proceeds. 18 For these reasons, we do not accede to the request made by Mr Duncan for clarification.

The manner in which the retrial is to be conducted 19 As noted, Mr Duncan seeks orders that the retrial be conducted on the papers on the basis of the evidence adduced at trial and without either party being entitled to lead further evidence. Mr Duncan submitted that the following matters supported orders to this effect: (a) Addenbrooke had put its case fully in the trial at first instance and had not been precluded from adducing any admissible evidence. It should not be permitted now to amend or enlarge its case in a retrial and thereby improve its position; (b) the only error established on the appeal was the omission of the trial Judge to consider all aspects of Addenbrooke's case and his "failure to consider some of the evidence said to have been given" in the trial; (c) the overarching purpose expressed in s 37M of the FCA Act, especially having regard to the availability of the trial record, the ages of Mr Denis O'Neil and Mr Duncan (both are said to be of advanced years) and the prospect of the matter being finalised more quickly if the remaining claims are determined on the papers; (d) the advantage which the trial Judge on the remittal would have in being able to see the witnesses give their evidence is diminished in this case because it will be necessary for the Judge to take account of the circumstance that Addenbrooke's witnesses will, by reason of the previous cross examinations, be better prepared; (e) the circumstance that the Full Court had not determined Mr Duncan's Notice of Contention meant that, unless the retrial was confined in the way for which he contends, the issues raised by that Notice may never be addressed. 20 Addenbrooke opposed the orders sought by Mr Duncan and submitted that the manner of the trial should be left to be determined by the new trial Judge. Both parties accepted that it would be within the power of the trial Judge to give directions as to the manner in which the retrial should proceed. Mr Duncan's submission was that the existence of that power should not dissuade the Full Court from making the order he seeks. 21 Several of the parties' submissions went to the present power of the Full Court to hear and determine Mr Duncan's application concerning the manner of the conduct of the retrial. Mr Duncan noted that we had concluded our reasons by saying that we "would hear from the parties as to costs and as to any consequential matters" (see also the reasons of Dowsett J at [291]), and that Order 9 made on 16 May 2017 contained a grant of liberty to apply. He submitted that his application of 30 May 2017 was of a kind which the Court itself had contemplated and, further, sought orders of a kind which were "supplemental" in the sense discussed by the Full Courts in Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 at 234-6 and Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47; (2008) 246 ALR 113 at [17]-[20]. 22 Addenbrooke, on the other hand, submitted that the Court was now functus officio and that the order sought by Mr Duncan could not be regarded as supplemental or as encompassed by the term "consequential matters". It noted that the parties had during the appeal hearing made submissions on the question of whether the remittal for a retrial should be to the trial Judge or to another Judge and emphasised that this issue had been determined adversely to Mr Duncan. Addenbrooke's alternative submission was to the effect that Mr Duncan was seeking a reopening of the appeal and no proper basis had been shown for such a course to be allowed. In particular, Addenbrooke submitted that the Court's willingness to hear submissions on "consequential matters" extended only to matters of a procedural kind and not to matters which would have the effect of altering the operation of orders already made. 23 In our view, it is not necessary presently to resolve these questions. That is because we consider that Mr Duncan's application should not succeed in any event. 24 It is appropriate to keep in mind our reasons for remitting the matter for trial by another Judge. We concluded that the trial Judge had not addressed the whole of Addenbrooke's claim of misleading or deceptive conduct, in particular, its non-disclosure case, and had not made any relevant findings as to why it was that Mr Duncan and the Cascade directors wanted to remove the Obeids from the Project, at [454]-[455], [463]. Later, we said: [513] In summary, we consider that Addenbrooke's submission that the Judge did not deal with the whole of the misleading or deceptive conduct claim against Mr Duncan should be upheld and that this Court cannot conclude that, had the whole claim been addressed, the outcome at trial would have been the same. … [514] … [515] We do not propose to make any declaration that Mr Duncan engaged in misleading and deceptive conduct. This is so because we are persuaded that the Judge failed to consider and determine Addenbrooke's case of misleading and deceptive conduct, as a whole. That case consisted of the positive misleading case and the nondisclosure case taken together. They cannot be separated. Indeed, on Addenbrooke's case, the reasons for not disclosing the true position concerning the Capital Raising necessarily gave rise to the misleading representations actually made. [516] We should not attempt to consider and resolve that combined case. Even the conclusions arrived at by the Judge as to what Addenbrooke would have done had it known merely of the Obeids' interest may well have been different if the non-disclosure case had been considered by him. [517] The facts in issue on the combined case are too many and complex for this Court fairly to make findings of fact to inform the legal result. We would for that same reason not undertake the fact finding task pressed by Mr Duncan's Notice of Contention. [518] In our opinion the whole misleading and deceptive conduct case ought to be tried again and, because of the credit based findings made by the Judge on the more confined case, that trial should be before a different Judge. 25 In summary, we considered that the trial Judge had not considered and determined Addenbrooke's case of misleading and deceptive conduct as a whole because he had not considered its claim based on non-disclosure; that the separate elements of that claim (the positive misleading statements and the non-disclosure) could not be separated; that the Full Court itself could not determine those matters on the basis of the findings of fact made by the trial Judge because those findings may well have been different if the Judge had considered the non-disclosure case; the multiplicity and complexity of the facts in issue on the combined case made it inappropriate for the Full Court to make findings of fact to inform the legal result especially given that many will require credit based findings, and that the retrial should be before another Judge because of the credit based findings already made by the trial Judge without consideration of the whole of Addenbrooke's case. 26 We consider it reasonably plain that we intended that the new trial Judge would hear and determine the whole of Addenbrooke's misleading or deceptive conduct case on the basis of the pleadings and evidence before that Judge and be able, in the usual way, to make the findings involving an assessment of the witnesses' credibility. 27 In short, we contemplated that, subject to the directions and control of the new trial Judge, the retrial would be of a conventional kind. We did not intend to circumscribe the scope and manner of conduct of the retrial, other than by confining the issues to be addressed. 28 As counsel for Addenbrooke submitted, it is not to be expected that, in circumstances in which the Full Court considered that it could not carry out the task of completing the trial on the papers, it would nevertheless impose that task on the new trial Judge. On the contrary, we expected that in the new trial, the Judge should have the advantage of seeing the evidence given as an aid to making the credit based findings. 29 Several of Mr Duncan's submissions assumed that the Court had not considered the manner in which the new trial was to be conducted. That assumption is not borne out by our reasons. The passages set out earlier indicate that we considered that the retrial should be before another Judge because the trial Judge had made credit based findings in respect of one part of Addenbrooke's case which could not be separated from the part he had not addressed. That meant that there would be a real apprehension that the trial Judge might not bring an open mind to the consideration of the remaining aspects of Addenbrooke's case. In effect, we were concerned that Addenbrooke should have a trial of the whole of its case before a judge who had not already formed adverse views about the credibility or reliability of its witnesses. 30 Counsel for Mr Duncan sought to draw support from the way in which we had dealt with that part of his Notice of Contention which concerned damages. This point, although raised for the first time in the written outline of submissions in reply, was given some prominence in the oral submissions. 31 The submission was that we had "refused to resolve [the] controversy" raised by the Notice of Contention concerning damages; that the issue "ha[d] been sent back to a trial judge" to be tried with the other issues in the retrial; that the correctness or otherwise of the Contention turned on the evidence presented in the trial; and that in the event that other evidence was presented in the retrial, the Contention would never be determined by reference to the evidence in the first trial on which it was based. 32 In our opinion, this submission should not be accepted. 33 Mr Duncan's Notice of Contention claimed that the trial Judge should have made the following findings concerning damages: (a) Addenbrooke had not proved that it suffered loss caused by the misleading or deceptive conduct it alleged because the true value of the shares as at the date of acquisition was more than nil, and Addenbrooke had not proved that value; (b) the enactment of the Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW) which had cancelled EL 7406 (and two other exploration licences) without compensation was the true cause of the decline in the value of the shares in Cascade purchased by Addenbrooke and that this was an independent or extrinsic cause of Addenbrooke's loss; (c) Addenbrooke's claim for damages in respect of the contravention of s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) was an apportionable claim so that his liability should be reduced to reflect his responsibility for the loss or damage claimed having regard to the responsibility of concurrent wrongdoers. 34 Contentions (a) and (b) were addressed at [657]-[659] of our reasons. We rejected the contentions saying, at [662], that it would not be appropriate to conclude that the trial Judge should have dismissed Addennbrooke's claims because it had not proven in any event a loss which could be attributed to Mr Duncan. Later, we said: [668] We accept that, on the evidence, the assessment of Addenbrooke's loss would have been difficult. Nevertheless, that is often the circumstance confronting a court … We would not conclude that, despite the difficulties, the Judge could not have made any assessment at all. [669] In our view, it would not be appropriate for Addenbrooke's appeal in relation to Mr Duncan to be defeated on the grounds which we would uphold on the basis that damages were not proved, nor capable of being proved. We are not persuaded that a reasoned assessment, even if attended with some difficulty, could not have been made by the Judge. This issue ought to be tried with the other issues which are to be retried. 35 One of the reasons which we gave for this conclusion was the absence of finding of primary facts resulting from the Judge's view that it was unnecessary for him to consider the questions of causation and damage. We noted at [666], however, that "if issues about disclosure were the effective cause, or at least one cause of the [White Energy Company Ltd (WEC)] decision, it would have been open to the Judge to conclude that there was a causal link between the nondisclosure of which Addenbrooke complained in [the] proceedings, on the one hand, and a diminution in value of the Cascade shares resulting from the WEC decision, on the other." 36 In these circumstances, the submission that the Court (by the reasons of the majority) had "refused to resolve [the] controversy" raised by the Notice of Contention is not soundly based. 37 It is true that we did not address the apportionment issue and said that the issue ought to be agitated in the retrial. However, we do not understand that to be the subject of Mr Duncan's present submissions and (understandably given its nature) his counsel did not refer to it on the hearing of the present application. 38 For these reasons, we would decline to make the orders sought by Mr Duncan in the interlocutory application lodged on 30 May 2017.

Costs of the trial at first instance 39 Both parties were agreed that the costs of the trial at first instance should be determined by the fate of the retrial. We would make an order to that effect.

Costs of the appeal 40 Addenbrooke sought an order that Mr Duncan pay its costs of the appeal. Mr Duncan submitted that the appropriate order is that the costs of the appeal be his costs on remittal with the effect that, if he is successful on the remittal and obtains an order for costs in his favour, then he should also be entitled to his costs of the appeal. Conversely, if Addenbrooke is successful on the remittal, the parties should bear their own costs of the appeal (insofar as it concerned Mr Duncan). 41 In support of its position, Addenbrooke referred to Jaycar Pty Ltd v Lombardo [2011] NSWCA 284, in which in relation to analogous circumstances, Campbell JA said: [61] It is an inevitable part of our legal system that on occasions a judge will act in error. If the error of the judge is not one that has been brought about by one of the parties (or by some other person who is amenable to the jurisdiction that the court now has to make costs orders against non-parties … ) the costs of rectifying that error should, prima facie, be treated as one of the viscissitudes of litigation. Therefore, the costs of rectifying the error should prima facie follow the event. [62] This principle is well established in the basis upon which appellate courts make costs orders. Allegations that a judge has made an error make up the daily diet of the Court of Appeal. However, if such an allegation turns out to be correct, the fact that it was a judge who made the error provides no reason for the Court of Appeal to make no order for the costs involved in remedying that error. The bringing of an appeal is a separate "event" to the trial concerning which the appeal is brought, and the application of [Uniform Civil Procedure Rule] 42.1 thus justifies the party who succeeds on that "event" prima facie receiving the costs of that event, ie of the appeal. Thus, if the appropriate way for the Court of Appeal to remedy the error in the court below is to set aside the judgment and enter a judgment for a different party, [Uniform Civil Procedure Rule] 42.1 requires that the costs of both the trial and the appeal be awarded to the party who was successful on the appeal, unless there is reason to do otherwise. If the appropriate way for the Court of Appeal to remedy the error in the court below is to order a new trial, the usual order is that the successful appellant receive the costs of the appeal, and that the costs of the first trial abide the event of the second trial, unless there are special circumstances warranting a different order: ... But, relevantly for the present case, the party who succeeded on the appeal should, prima facie, receive the costs of the appeal, regardless of the fate of the new trial. (Emphasis in the original and citations omitted) This approach was followed by the Full Court in Vata-Meyer v The Commonwealth (No 2) [2015] FCAFC 167 at [10]. 42 In short, Addenbrooke's position was that it had had substantial success on the appeal as against Mr Duncan and that there were no special or exceptional circumstances which would make an order for costs in its favour inappropriate. 43 Counsel for Mr Duncan emphasised that Mr Duncan did not bear responsibility for the circumstance giving rise to Addenbrooke's success on the appeal. 44 In addition, counsel for Mr Duncan sought to attribute to Addenbrooke responsibility for the issues in the trial not having been identified for determination in an appropriate way. He referred in this respect to some aspects of the manner of Addenbrooke's presentation of its case at trial and to what was said to be a "lack of clarity" in its pleading and in the evidence it had presented. 45 Thirdly, Mr Duncan repeated the submission that his Notice of Contention concerning damages had not been determined. This was said to be significant in two ways: first, because Addenbrooke may on the retrial present its causation and damages claim in a different way; and, secondly, because the circumstance that the Full Court had declined to deal with his Notice of Contention concerning damages meant that there had not been an "event" which the costs could follow. For the reasons given earlier, we consider that the premise for this submission is unsound: we considered that it should not be concluded that Addenbrooke's evidence and pleadings could not establish that it had suffered an assessable loss. Whether or not it had done so depended on the very findings of fact which the trial Judge had not made. 46 Fourthly, counsel submitted that Addenbrooke's appeal had succeeded only because the Full Court had "displaced" the trial Judge's finding at [410] that the reason for the sensitivity amongst the stakeholders was "truly a matter of speculation" when there had been no challenge to that finding on the appeal. Counsel referred in this respect to authorities concerning the liability for costs when an appeal succeeds on a point not presented at first instance: Simonton v Australia Prudential Regulation Authority [2006] FCAFC 118; (2006) 152 FCR 129 at [82] and Miller v Miller (1978) 141 CLR 269 at 276-7. 47 In our view, this particular submission is based on a misapprehension. Contrary to the understanding of Mr Duncan's counsel, Addenbrooke had challenged the conclusion of the Judge in [410]. As counsel for Addenbrooke submitted, the whole thrust of the appeal was that the purpose of the non-disclosure had been to conceal not only the involvement of the Obeids but also the concerns about the possible consequences for the Project if that involvement had become public knowledge. Paragraph [410] in this context was one manifestation of the Judge's omission to deal with the whole of Addenbrooke's pleaded case. 48 Further and in any event, it is not entirely accurate to say that Addenbrooke did not challenge the finding in [410]. At page 6 of the appeal transcript, counsel for Addenbrooke noted that the Judge had not articulated "in any great detail the nature of the sensitivity" to which he had referred in [410] and submitted that it was "clear from the evidence what the nature of the sensitivity was". Counsel later took the Court to the evidence on which he relied for that submission. 49 Mr Duncan did not contend that there should be any apportionment of costs according to the issues on which Addenbrooke had succeeded and those on which it had not. 50 This means that the question of whether the usual rule should apply so that Mr Duncan pays the costs of the appeal turns on the first two matters raised by Mr Duncan. 51 We did note at [441] that the various elements of Addenbrooke's non-disclosure case did not appear to have been given the same emphasis at trial as they had on appeal and that Addenbrooke's submissions had not crystallised clearly each of the ways in which it put its case, the elements of each, and the evidence bearing on each. To that extent, there is some support for Mr Duncan's second submission. However, we also concluded at [441] that Addenbrooke had pursued its non-disclosure case. Mr Duncan should have been aware of that. He was able to identify the issues and to address them. That suggests that the ordinary rule should apply. We are mindful that Addenbrooke may, in the light of the scrutiny of the manner of presentation of its case in the course of the appeal, be able to improve that presentation in the retrial. To that extent, it may be in a better position in the retrial. We have considered whether that circumstance should count against the application of the usual rule, and have decided that it should not. That would seem to be a usual incident of a new trial and one of the "vicissitudes" of litigation. Mr Duncan chose to contest the appeal against him and, having failed, should meet Addenbrooke's costs of the appeal. 52 We consider that the appropriate order would be that Mr Duncan pay Addenbrooke's costs of and incidental to the appeal.

Summary 53 For the reasons given above, we would make the following orders: (1) The First Respondent's interlocutory application of 30 May 2017 is dismissed. (2) Order 4 made by the trial Judge on 5 August 2015 is set aside insofar as it concerns the costs of the First Respondent and in its place there be an order that the costs of the proceedings at first instance insofar as they concern the First Respondent abide the outcome of the retrial of the claims referred to in Orders 2 and 3 made on 16 May 2016. (3) The First Respondent pay the Appellant's costs of and incidental to its appeal concerning him. (4) The First Respondent pay the Appellant's costs of and incidental to his interlocutory application of 30 May 2017 and of and incidental to the hearing on 16 August 2017. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gilmour and White.