[1] the contraventions that I have found include some very serious contraventions;
[2] those contraventions have led to loss and damage on the part of companies and investors, contrary to the protective purpose of the relevant provisions of the Corporations Law;
[3] the defendant's field of activity, management and financial consultancy, is an area where the potential to do damage is especially high, compared, say, with a defendant whose expertise is in making cement;
[4] the defendant's contraventions have been recurrent, arising in the context of three different sets of companies;
[5] until the end, the defendant asserted explanations for what he had done which I have found to be implausible, and this suggests to me that he has no contrition;
[6] all of these facts lead me to believe that there is a high propensity that the defendant will engage in similar conduct if only a short period of the prohibition is imposed;
[7] I am conscious of the fact that a prohibition for 25 years will effectively prevent the defendant from managing a corporation for the rest of his life, but it will not prevent him from earning income as an employee, using his undoubted financial skills under proper supervision."
19 The considerations mentioned in his Honour's first three points essentially apply in this case. As to the fourth point, Mr Goulding's contraventions have not arisen in the context of three different sets of companies, but they were committed over a protracted period of three or four years. As to the fifth point, so far as explanation is concerned, in general none has been given. In so far as a justification was given for Mr Goulding taking large sums of money from the companies, the justification was that he had provided services to them for which he had not otherwise been remunerated. This, of course, could not justify the unauthorised taking of money by a director. I cannot be satisfied that he has any contrition for his actions. He has made claims of contrition only in very recent written submissions. But he has not entered the witness box and given evidence of contrition that was on oath and would be subject to cross examination. Particularly in the absence of evidence, there must be the gravest doubt as to whether his understanding of a director's duties has improved. So far as the sixth point is concerned, like Austin J I have come to the conclusion that there is a high propensity that Mr Goulding will engage in similar conduct if a short period of prohibition is imposed. As to the seventh point, Mr Goulding is 47 years of age. A prohibition for 25 years, the minimum sought by ASIC, will effectively prevent Mr Goulding from managing a corporation for the rest of his life, but will not prevent him from earning income as an employee using his skills under proper supervision.
20 I have borne in mind the penalty imposed on the fourth defendant Mr Geagea, by Hammerschlag J by agreement between ASIC and Mr Geagea. The disqualification was for five years. He was also ordered to pay $60,000 towards ASIC's costs: see his Honour's reasons given on 9 May 2008. Bearing in mind that Mr Geagea was not advantaged by any moneys taken and that he acted under the influence of Mr Goulding I do not think that a disqualification of Mr Goulding for 25 years is disproportionate to the five year disqualification imposed on Mr Geagea.
21 Mr Goulding has complained in his submissions that he has been unfairly treated by ASIC and that this should be taken into account in fixing the period of disqualification. I am not able to conclude that there has been any substantial unfairness towards him and certainly not bias or a bigoted approach that "was and is an obscene abuse of power at the taxpayer expense". On the contrary, a large body of serious breaches of duty has been established against him. Any disadvantage that he has suffered has in general terms been inherent in ASIC discharging its public duty of pursuing him in respect of those breaches. If there were any unfairness in his treatment it could not, however, detract from two of the principal factors in the assessment of the disqualification: first, the necessity of protection of the public; and, secondly, the element of retribution and deterrence that is expressed in the disqualification.
22 The conclusion that I have come to is that the period of disqualification to be imposed on Mr Goulding under s 206C of the CA should be 25 years.
23 So far as costs are concerned, ASIC submits that, as it was substantially successful against Mr Goulding, he should be the subject of a general order to pay ASIC's costs of the proceedings. ASIC says that no portion of the case which it withdrew or in which it failed was sufficiently discrete to justify it being treated separately, so far as costs are concerned.
24 In my view, the matters adverted to in items (3), (4), (5) and (6) in [14] above certainly do not justify any detraction from a general costs order in ASIC's favour. However, there was a considerable amount of evidence put on and some time taken at trial relating to the matters adverted to in items (1), (2), (7) and (8) in [14] above, although the evidence relating to (8) also largely had other uses. Of these matters, those in (1) and (8) were withdrawn by ASIC and not pursued to the end of the trial. ASIC pursued the matters in (2) and (7) to the end of the trial and failed on them. Each of items (1), (2) and (7) was supported by a body of evidence that was not otherwise of utility in the trial. In my view it would not be just for the costs of preparing this evidence and conducting these four matters at the trial to be visited upon Mr Goulding because of ASIC's general success in the proceedings. In a trial in which the affidavit and exhibit evidence was voluminous, which spanned 23 days and in which there have been copious written submissions it is not easy to put a figure on what proportion of the costs should be attributed to these matters. Doing my best to make an estimate, as judges are enjoined to do, it is my view that justice will be done if I order that Mr Goulding pay 90% of ASIC's costs of the proceedings. ASIC does not oppose the making of an order in these terms. ASIC also properly concedes that Mr Goulding should have credit against these costs for any part of the $60,000 in costs ordered against Mr Geagea that is paid.
25 Something should be said specifically about one matter of complaint by Mr Goulding that, if established, could potentially require reflection in the quantum of the costs order made against him. This concerned the number of amendments to ASIC's pleading and consequent changes of course in the direction of its case. The case was tried on the fifth amended statement of claim. However, by reason of Mr Goulding's complaints in this regard, ASIC has presented me by way of submission with an analysis of the course of the amendments and I have carefully considered the history of that course. Two things should be said about the amendments that were allowed. The first is, that in every case they were occasioned by changes in the factual situation which faced ASIC after the last amendment had been sought. Secondly, in every instance, they added to the case that ASIC sought to make against Mr Goulding. They did not withdraw any material or mean that any effort which had previously been made either by ASIC or Mr Goulding was wasted. In these circumstances, in my view there is no just complaint about the course of the amendments that ASIC in fact succeeded in obtaining. On the last occasion, a major amendment sought by ASIC was refused by me because I thought it was unfair that it should be brought into the trial at the stage at which it was sought: see ASIC v Sydney Investment House Equities Pty Ltd [2007] NSWSC 1456. In my view, there was not, by reason of the course of amendment, any reason to diminish the quantum of the costs order against Mr Goulding.