Relevant Facts
63 As I have already explained, the decision of the Review Panel concerned the affairs of Molopo. The principal issues before it were the extent to which the Applicant and Keybridge were associates and whether the degree of influence exercised over them by Mr Bolton was itself a separate basis for concluding that there were unacceptable circumstances. The events relevant to those questions largely occurred between October 2016 and June 2017.
64 As it happens, Mr Bolton had many years before been involved in a controversy in the affairs of what became known as the Brookfield Prime Property Fund ('the Fund'). This was a unit trust quoted on the Australian Stock Exchange. It had substantial interests in commercial properties including, for example, the American Express Tower in Sydney. Through a vehicle to which it will be necessary to return, Mr Bolton controlled an approximate 20% holding in the Fund. In 2009 events occurred which brought Mr Bolton into conflict with the trustee of the Fund, Brookfield Multiplex Capital Management Ltd ('Brookfield'). The details of the debate are not important save as to note that they had nothing to do with Molopo, the Applicant or Keybridge. They did, however, involve Mr Bolton himself and he, at least, is common integer in both the debate the subject of this case and the 2009 debate he had with Brookfield.
65 In 2015 a company associated with Mr Bolton, Australian Style Holdings Pty Ltd ('ASH'), commenced a proceeding in the Supreme Court of New South Wales against a number of defendants over the affairs of the Fund including Brookfield ('the Supreme Court Proceeding'). By the time of the commencement of the proceeding in 2015, the entity through which Mr Bolton operated had become ASH. Mr Bolton owns 1% of ASH and his sister owns 99% but ASH brought its suit as the trustee of the Australian Style Investments Unit Trust ('ASIUT'). Until 17 November 2015, Mr Bolton had been the sole director of ASH but was disqualified as a director from that date for a period of three years by ASIC. It is not clear on the evidence before this Court whether the proceeding was commenced before or after this disqualification but nothing turns on this. Although there is no evidence about who the beneficiaries of the ASIUT were, I propose to assume in the Applicant's favour that they were in some way associated with Mr Bolton. That assumption is consistent with the role Mr Bolton seems to have had in the dispute with Brookfield. Making that assumption in the Applicant's favour, it is unnecessary to pay much attention to Mr Bolton's 1% shareholding in ASH.
66 Brookfield retained King & Wood Mallesons ('KWM') to act on its behalf in the Supreme Court Proceeding. On 26 November 2015 they delivered a brief in the proceeding to Mr Jackman. Mr Jackman has no recollection of doing any work on the brief or discussing it with KWM at any time prior to returning the brief. He does recall working on a fresh second brief in the same case which was sent to him in February 2019, well after the events with which this case is concerned (and four months after judgment was initially reserved). Consistent with that evidence, Mr Jackman has no notes of any work done by him on the first brief and he issued no invoices in relation to it, and note-taking and time recording were said to be his 'invariable' practice. He says his usual practice is to return briefs which have been inactive for more than a year at the end of each year and that he therefore thinks it likely that he returned the brief to KWM in December 2016.
67 The Applicant wished to cross-examine Mr Jackman about when he returned the first brief but waived its entitlement to do so when ASIC conceded that the Court should not make a finding that Mr Jackman had returned the first brief in 2016 (its written submissions filed in response to the interlocutory application to re-open the hearing at s21 says 2015 but I believe this is in error and the reference should be to 2016: cf Mr Jackman's affidavit at s11).
68 In that circumstance, I will assume in favour of the Applicant that Mr Jackman had not returned the first brief by the time he participated in the Review Panel. Out for fairness to Mr Jackman I will record that had it been open to me to form a conclusion on this matter I would have accepted that the brief had been returned at the end of 2016. No reason suggested itself on the material before me why he would have departed from his usual practice of clearing out the deadwood at the end of each year. However, the procedural machinations of this case make it appropriate to assume that for whatever reason this first brief had not been returned by June 2017.
69 On that assumption, however, I do not hesitate to find that he did no work on the first brief. That is consistent with the fact that he has no billing record or notes of any work done upon it. It also consistent with what was happening (or rather, not happening) in the Supreme Court Proceeding at that time. I will return below to the security for costs application which was made in the Supreme Court Proceeding by Brookfield in 2018. As the affidavit in support of that application makes clear, ASH took few steps to prosecute the case with dispatch and the case wallowed largely rudderless for some years whilst ASH changed its solicitors several times. Junior counsel was retained in the matter for Brookfield and that fact combined with the case's rather desultory procedural history corroborates Mr Jackman's evidence that he did no work on the case until February 2019 when a second brief was delivered to him.
70 Had Mr Jackman read the first brief or discussed it with either his solicitors or junior counsel there would, so it seems to me, have been a note of that occurrence. The Supreme Court Proceeding was a complex piece of trust litigation. To have read the brief would have been a significant undertaking requiring a good deal of work. There was no procedural step coming up in the litigation which required Mr Jackman's attendance and there were no conferences booked with him for his advice. There is no evidence that his written opinion was ever sought. In that circumstance, I infer that Mr Jackman never did any work on the first brief. So far as the fair-minded lay observer is concerned, I do not think that the proposition that Mr Jackman did any work on the brief is plausible. Consequently, I do not think that it is appropriate to proceed on the basis that the circumstances of the case to be taken into account by the fair-minded lay observer should include the circumstance that there is a dispute about this: CUR24 v Director of Public Prosecutions [2012] NSWCA 65; 83 NSWLR 385 at 397 [44].
71 There is a satellite dispute as to whether the first brief was in an opened condition when it was eventually returned to KWM. Although knowing whether the first brief was returned in mint condition would assist in determining whether Mr Jackman had done any work on it, I have been able to conclude that he did no work on it without that fact. Nevertheless, I will include the existence of this dispute as part of the circumstances known to the fair-minded lay observer.
72 It was in April 2017 that the dispute involving Molopo finally fructified into a dispute before the Takeovers Panel. ASH's role in that dispute was that it owned all of the shares in another entity, ASG. ASG held 21.16% of the shares in Keybridge. Mr Bolton's role was that he owned 1% of the shares in ASH and 49.9% of the units in a related trust, the Aurora Trust. It does not appear to have been suggested that ASH held its shares in ASG as part of the corpus of the ASIUT so it is not obvious to me that its role in the Review Panel proceeding had anything to do with its role as the trustee of the ASIUT in the Supreme Court Proceeding. On the other hand, I am prepared to accept that Mr Bolton had some kind of connection with the ASIUT. What that brings into focus, however, is that ASH is a sideshow in the present debate. The fact that it was involved in both sets of proceedings is of little relevance when it was acting as a trustee in one but not the other. Mr Bolton, on the other hand, seems to have had a real role in both cases although was a party to neither.
73 Mr Jackman was contacted by the Takeovers Panel in late May 2017 to see if he would be available to form part of a review panel if necessary and to see whether he had any conflicts of interest (as required by s 185 of the Australian Securities and Investment Commission Act 2001 (Cth)). Mr Jackman disclosed inter alia that (a) he had no relevant activities to disclose; (b) he was not aware of any interest which could conflict with the proper performance of his duties as Sitting President; and, (c) he had no further relevant disclosures to make.
74 Mr Jackman now says the Supreme Court Proceeding simply did not cross his mind in May 2017 when the Panel's Office Manager contacted him. This buttresses my conclusion that he had not read the first brief. If he had understood that Mr Bolton was involved in both the Supreme Court Proceeding and the matters before the Review Panel I believe that this is a matter that Mr Jackman would most likely have disclosed out of an abundance of caution. That he did not shows that he was ignorant of Mr Bolton's role in the Supreme Court Proceeding. I return to the security for costs application made by Brookfield below, but prior to that application there was nothing in the fact that the brief existed which would indicate that Mr Jackman would be required to criticise Mr Bolton. It was trust litigation concerned with the correctness of Brookfield's actions. Although the statement of claim referred to the role of Mr Bolton I reject the Applicant's submission that the mere holding of a brief entailed that Mr Jackman would be bound to be critical of Mr Bolton. Whether that would be so would depend on what Brookfield's defence to the suit was. There is no evidence that Brookfield's defence was ever provided to Mr Jackman prior to June 2017. Unless the contents of that defence made clear that Mr Bolton was to be criticised I cannot see how it can be correct that Mr Jackman would have come under an obligation to be critical of Mr Bolton. More is this so when I am satisfied that even if Mr Jackman had been provided with the defence as part of the first brief, he had not ever read it.
75 Ultimately, the members of the Review Panel were Mr Jackman, Mr Peter Day (Sitting Deputy President) and Mr Tony Osmond (Sitting Member). Prior to the Review Panel commencing its consideration of the matter, the Panel's Director had written to the parties by letter dated 2 June 2017. In this letter the Panel informed the parties of the composition of the Review Panel and enclosed a declaration of interests provided by Mr Jackman for their information. The Panel provided the same communication to a number of persons and entities which were not parties to the three review applications before it. In its letter it said that these were persons who had 'been identified in the application or who have informed the Panel of their interest.' Two of the addressees were ASH and Mr Bolton.
76 The Review Panel made its decision shortly after this letter on 14 June 2017. I am satisfied that at the time Mr Jackman participated in the decision he did not know that ASH was the Plaintiff in the Supreme Court Proceeding, he did not know that it sued in its capacity at the trustee of the ASIUT, he did not know who the beneficiaries of the ASIUT were and he did not know that Mr Bolton was involved in the Supreme Court Proceeding.
77 About a year after the Review Panel's decision, towards the middle of 2018, the Supreme Court proceeding awoke from a long and restful slumber. In April 2018 Brookfield applied for security for costs. In support of that application its solicitor, Mr Alexander Basil Morris, filed an affidavit sworn on 13 July 2018. In the lead up to the security for costs application, ASH had offered Brookfield by way of compromise a form of security consisting inter alia of an undertaking from Mr Bolton to cover any costs liability ASH as trustee of the ASIUT had to Brookfield for costs. That offer by Mr Bolton is consistent with the assumption I have made above that the ASIUT had something to do with Mr Bolton.
78 At s34 of his affidavit Mr Morris explained the reasons why he did not think that the undertaking proffered from Mr Bolton was satisfactory as a form of security. One of his reasons was that nothing was known of Mr Bolton's assets and liabilities which ASH had not disclosed. But another of Mr Morris' reasons involved a fairly direct attempt to show that Mr Bolton was an unworthy person whose undertaking could not be trusted. This Mr Morris did by referring to the fact that the Australian Financial Review had, on 26 April 2018, reported that Mr Bolton was seeking a review of his ban by ASIC before the Administrative Appeals Tribunal and that the Tribunal had indicated that it could take into account the decision of the Review Panel. An article in the same paper dated 9 April 2018 had earlier explained that the Review Panel's conclusion that Mr Bolton had been involved in the affairs of the Applicant and Keybridge whilst banned as a director was being investigated by ASIC. Here the underlying suggestion was that if Mr Bolton had been behind the scenes with the Applicant and Keybridge pulling the strings in relation to Molopo, contrary to the ASIC's ban on him being involved in the management of any corporation, his undertaking could not be trusted.
79 The Applicant now submits that Mr Morris's affidavit showed that Brookfield was relying upon the outcome of the Review Panel's decision against ASH (and Mr Bolton). No doubt this is true, but the affidavit was purely responsive to ASH's proposal to put up an undertaking from Mr Bolton as security for costs. It was not until ASH took that step in 2018 that Mr Bolton's alleged untrustworthiness intruded itself into the Supreme Court Proceeding. When it finally became an issue in the Supreme Court Proceeding it was well after the Review Panel's decision in June 2017. Although the Applicant relied upon what was contained in Mr Morris' affidavit to show what Brookfield's incentives were in relation to Mr Bolton, its reliance ignores that temporal difficulty.
80 Mr Morris' affidavit dealt with other matters too. Part of that affidavit said 'KWM has briefed Mr Ian Jackman SC and Mr Justin Williams, of Counsel, in this Proceeding on behalf of the First Defendant' and then proceeded to set out their respective rates. The significance of this evidence need not be addressed given that I have assumed in the Applicant's favour that Mr Jackman had not returned the brief by the time he served on the Review Panel.
81 On 7 February 2019 KWM delivered a fresh brief to Mr Jackman and he undoubtedly thereafter performed work pursuant to that retainer. This was perhaps the trial brief for senior counsel to which Mr Morris had referred in his security for costs affidavit and for which Brookfield sought security. On 22 July 2019 the proceeding was listed for directions before Ward CJ in Eq and at that time junior counsel for Brookfield told the Court, inter alia, that Mr Jackman had held a brief since 2015 and that he had availability only on certain dates in September and October of 2019. Mr Jackman disputes the accuracy of this on the basis that by that time he had returned the first brief. But, of course, by this time Mr Jackman had received the second brief and had performed work on it. I do not think it is necessarily the case that junior counsel would have known either that Mr Jackman's first brief had at some point been returned or that he had received the second brief - this was an administrative matter between Mr Jackman and Mr Morris. Were it to matter, therefore, I would be disinclined to think that junior counsel's statement to the Supreme Court that Mr Jackman had been retained since 2015 adds to the factual matrix. I infer that junior counsel obtained Mr Jackman's available dates from his clerk in the usual way (Mr Jackman says he had no knowledge of this but there is no reason to think that he would).
82 It was not long after the directions hearing before Ward CJ in Eq that in August 2019 the Applicant's solicitor, Mr O'Brien, says that he became aware of the role of Mr Jackman in the Supreme Court Proceeding. He immediately wrote to the solicitors for the Panel raising the Applicant's concerns about Mr Jackman's involvement. Correspondence ensued, the details of which need not encumber these reasons. The correspondence eventually resulted in the application to reopen.
83 For completeness, I note two further matters: (a) the evidence of Mr Bolton that if he had known that Mr Jackman had held a brief in the Supreme Court Proceeding he would have objected to him sitting on the Review Panel; and, (b) the evidence of Mr Patton, a director of the Applicant, that it had submitted to the Review Panel that it ought not to reject the sworn evidence of Mr Bolton without him first being cross-examined. I accept both of these matters.