Carey v Freehills

The jurisdiction of this Court 15 In seeking to have the order of dismissal set aside, the appellants invoke s 25(2B)(bc) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). Section 25(2B) provides (relevantly): A single Judge (sitting in Chambers or in open court) or a Full Court may: … (ab) make an interlocutory order pending, or after, the determination of an appeal to the Court; or … (ba) make an order that an appeal to the Court be dismissed for want of prosecution; or (bb) make an order that an appeal to the Court be dismissed for: (i) failure to comply with a direction of the Court; or (ii) failure of the appellant to attend a hearing relating to the appeal; or (bc) vary or set aside an order under paragraph (ab), (ba) or (bb); or … 16 As can be seen, the power of this Court under subs (2B)(bc) is confined to the variation or setting aside of orders made under subpars (ab), (ba) and (bb). Relevantly, for present purposes, those are orders of the Court dismissing an appeal for want of prosecution or for failure to comply with a direction of the Court. Subsection (2B)(2c) does not expressly vest the Court with jurisdiction to vary or set aside an order dismissing an appeal because of an appellant's failure to provide security for costs in accordance with an order of the Court, although such a failure may be encompassed by subs (2B)(bb)(i). 17 This makes it necessary to identify the basis upon which North J dismissed the appeal. Freehills' interlocutory application filed on 22 April indicated that it was made pursuant to ss 25(2B) and/or 56(4) of the FCA Act and rr 36.09(1)(c) and/or 36.74 of the FCR. 18 The relevant parts of s 25(2B) have already been quoted. Section 56 of the FCA Act empowers the Court to order an applicant or an appellant to give security for the payment of costs that may be awarded against them. Subsection (4) provides for the consequences of a failure to provide the ordered security: (4) If security, or further security, is not given in accordance with an order under this section, the Court or a Judge may order that the proceeding or appeal be dismissed. 19 Rules 36.09 and 36.74 provide two circumstances in which the Court may dismiss an appeal without a substantive hearing. Rule 36.09, which concerns security for costs of an appeal, provides: (1) A party may apply to the Court for an order that: (a) the appellant give security for the costs of the appeal, and for the manner, time and terms for giving the security; and (b) the appeal be stayed until security is given; and (c) if the appellant fails to comply with the order to provide security within the time specified in the order - the appeal be stayed or dismissed. (2) An application under subrule (1) must be accompanied by an affidavit stating the facts in support of the application. Rule 36.74, which provides for the consequences of certain failures by appellants in relation to appeals, states: (1) A respondent may apply to the Court for an order that the appeal be dismissed for the failure by an appellant to do any of the following: (a) comply with a direction of the Court; (b) comply with these Rules; (c) attend a hearing relating to the appeal; (d) prosecute the appeal. (2) An application under subrule (1) must be served on the appellant: (a) at the appellant's address for service; or (b) personally. 20 Accordingly, Freehills' application of 22 April sought to invoke the Court's powers to dismiss an appeal for failure to provide the ordered security for costs (s 56(4) of the FCA Act and r 36.09(1)(c) of the FCR) and the Court's powers to dismiss an appeal for want of prosecution or on account of an appellant's failure to comply with procedural requirements (s 25(2B)(ba) and (bb) of the FCA Act, and r 36.74 of the FCR). 21 North J noted at [3] that Freehills sought the dismissal of the appeal because the security for costs had not been provided, because the appellants had failed to comply with the Court's directions, and because of a want of prosecution of the appeal. These were also the matters on which North J relied for his decision: 12 It is noteworthy that the solicitor for the appellants has not addressed the reasons for the defaults in compliance with the steps necessary for the preparation of the appeal. But Mr Schlicht, who appeared as counsel for the appellants, contended that the periods of the defaults have not been gross or excessive. Nonetheless, the accumulation of the defaults, taken with the failure to pay security and the tenuous basis upon which it appears that the funds necessary for security could be raised by the appellants, suggests that there is not a genuine and real intention to prosecute the appeal on substantial grounds. 13 An appeal should not be dismissed lightly, but on the other hand, where the facts indicate a disinclination of the appellant to proceed with the appeal, that step should not be resisted. … 15 It is appropriate to grant the respondent an abridgement of time for the hearing of this application, given the facts presently outlined. However, it is not possible to say at this stage that the appellants do not have matters of substance to raise, although it appears doubtful that they do have matters of substance to raise. Justice is therefore best served by making an order that the appeal be dismissed, but also by giving the appellants the opportunity within a short period to apply to set aside this order on further material. 16 The appeal should be dismissed, but with leave granted to the appellants to apply to set that order aside. (Emphasis added) 22 These passages indicate that the principal reason for the dismissal was the conclusion of North J that the appellants did not have "a genuine and real intention to prosecute the appeal". Underpinning this conclusion were the appellants' procedural "defaults", their perceived "disinclination" to proceed with the appeal, and their failure to provide the ordered security. This is evident in pars [4], [12] and [13] of his Honour's reasons. In [4], North J noted that the basis for Freehills' application lay in four separate defaults. The first three of those defaults were procedural defaults to which I will refer shortly. The fourth was a procedural default of a different kind. It was the circumstance that 10 of the appellants (the fourth, fifth, 10th, 11th, 13th, 15th, 17th, 19th, 20th and 25th) had been deregistered after Kenny J delivered her judgment and were not therefore proper appellants in any event. 23 North J did refer to the failure to provide security in four passages: first, at [2], in summarising the factual background; secondly, at [3], in summarising Freehills' application; thirdly, at [11], in noting the appellants' application for an adjournment of the hearing; and lastly, at [12], in identifying a matter adding to the significance of the accumulation of procedural defaults. 24 Accordingly, it seems that the principal reasons for the dismissal of the appeal were the appellants' procedural defaults and their failure to prosecute the appeal appropriately. Their failure to provide security for costs in accordance with the order of Marshall J on 1 April was a matter bolstering those reasons. The fact that North J did not rule on the appellants' application for an adjournment, in order to have the opportunity to put on further material regarding their attempts to provide security, confirms to my mind that this is an appropriate analysis. 25 I conclude therefore that North J was exercising the Court's power under s 25(2B)(bb)(i) of the FCA Act and, to a lesser extent, the Court's power under s 25(2B)(ba). The appellants' failure to provide security formed part of their failure to comply with a direction of the Court for the purposes of s 25(2B)(bb)(i). This means that the appellants' present application can be regarded as having been brought under s 25(2B)(bc). 26 In relation to the 10 deregistered appellants, North J also dismissed the appeal brought by them on the basis (in effect) that their appeals were incompetent: at [14]. Section 25(2B)(bc) does not vest the Court with power to set aside dismissals made on that basis. However, this does not create a difficulty as, although the interlocutory application of 7 May was purportedly brought on behalf of those appellants also, counsel accepted that this was inappropriate and informed the Court that the application to set aside was not pursued in respect of the deregistered appellants.

The exercise of the power to set aside 27 Normally, an application to set aside or vary an order of the Court is heard by the same judge who made the order. Considerations of efficiency and comity indicate that that should be so. However, North J indicated a difficulty in his hearing the application and, in that circumstance, the Chief Justice assigned the hearing of the application to a different judge. 28 The nature of the Court's power under s 25(2B)(bc) was considered by the Full Court in SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61; (2007) 158 FCR 292 (Black CJ, Weinberg and Allsop JJ). An issue in that case was whether the power in subpar (bc) could be exercised after the orders of the Court had been entered. That limitation on the exercise of the power was rejected. In doing so, the Full Bench made some observations concerning the power to set aside which are pertinent presently (at 297-8): 18 The clear purpose of s 25(2B)(ba), (bb) and (bc) is the efficient dispatch of Court business. Parties who do not prosecute an appeal, who fail to comply with a direction of the Court or who fail to attend relevant hearings face dismissal of their appeal for such conduct, without a hearing. Section 25(2B)(bc) can be seen as providing a safeguard to ensure that any injustice resulting from the invocation of s 25(2B)(bb) can be rectified. … … 20 Section 25(2B)(bc) is the grant to the Court of a power in general terms. As a rule provisions conferring judicial power on a court should be construed liberally and without the making of implications or the imposition of limitations not found in the words used by Parliament: … In our view, to construe s 25(2B)(bc) as limited to orders not entered would not only infringe this principle, but would also bring arbitrariness and the potential for injustice to the operation of a provision that was intended to act as a safeguard for the confident exercise of a summary procedural power. Such an intention of Parliament is unlikely. Their Honours' view that subpar (bc) should be seen as providing a safeguard against injustice resulting from summary dismissal of the appeal is to be noted. It has been followed in a number of subsequent cases, including SZCZF v Minister for Immigration and Citizenship [2009] FCA 208 at [11]. 29 It is appropriate to recognise some other aspects of subpar (bc). It vests the Court with a discretion in the defined cases to set aside or vary a previous order: not a jurisdiction to review a previous decision as though on appeal. This means that the Court is not necessarily concerned with the correctness or otherwise of the order sought to be set aside, and an order which was correct when it was made may nevertheless be set aside. However, the identification of an error in the order itself or in the reasons leading to the order may well be significant in informing the exercise of the discretion. 30 Secondly, although the power of a Court to set aside a previous order is to be construed liberally, the exercise of the power is a different matter. Several authorities indicate that powers such as those contained in subpar (bc) are to be exercised with caution: SZCOZ v Minister for Immigration and Citizenship [2007] FCA 641 at [3]-[4]; Pannu v Minister for Immigration and Citizenship (No 2) [2013] FCA 1406 at [5]-[6]. The public interest in the finality of litigation is an important consideration, but it is relevant to keep in mind that s 25(2B)(bc) is concerned with finality resulting from the summary disposal of appeals in circumstances of apparent default: SZISM v Minister for Immigration and Citizenship at [19], 297-8. 31 The appellants submitted that in determining the application to set aside, the Court should have primary regard to the matters which usually inform the exercise of the Court's discretion to extend the time in which security for costs previously ordered may be provided and the exercise of the Court's power to dismiss proceedings in consequence of a party's failure to provide the ordered security. Counsel referred to authorities in which, before proceedings were dismissed by reason of a failure to provide the ordered security, litigants had been given an extension of time in which to provide the security. These were: Microbio Resources Inc v Betatene Ltd (Unreported, Federal Court of Australia, Black CJ, Sheppard and Einfeld JJ, 8 October 1993); Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWSC 18 at [24]; Cosdean Investments Pty Ltd v Football Federation Australia Ltd (No 3) [2007] FCA 766; and Billinudgel Pastoral Co Pty Ltd v Westpac Banking Corporation (Unreported, Federal Court of Australia, Cooper J, 27 March 1998). In Microbio, the Full Court said, at 9-10: The Court is careful to see that orders for security for costs do not work injustice to parties against whom such orders are made. But if those parties do not comply with the orders and give no evidence or explanation as to why they have not complied with them, they cannot be heard to complain of injustice if, after a considerable length of time, and extensions of time, the ultimate sanction of dismissal is applied. It is incumbent upon parties in such circumstances to provide evidence of their position. (Emphasis added) Counsel emphasised the reference to the dismissal occurring after "a considerable length of time, and extensions of time". He submitted that this is the principle on which the Court acts in circumstances such as the present. As the present appellants have not been afforded the same opportunity, he submitted that the dismissal should be set aside so as to allow them a further opportunity in which to provide the security ordered by Marshall J. 32 As counsel for Freehills pointed out, there is a relevant distinction between the authorities to which the appellants referred and the present case. Each of those decisions concerned the dismissal of first instance proceedings, whereas in this case, the appellants have had a first instance adjudication. Adapting the language of Emmett J in Dye v Commonwealth Securities Ltd [2012] FCA 992 at [27], the appellants have had their day in Court and a final (as opposed to provisional) adjudication of their claims has been made. 33 Further, the authorities on which the appellants relied did not involve circumstances in which, in addition to the failure to provide the ordered security, the prosecution of the actions by the plaintiffs had also been dilatory. 34 While I accept that the matters to which counsel for the appellants referred are relevant to the exercise of the discretion, I do not regard them as the only matters to which the Court should have regard. The very fact that the present application is to set aside an order for dismissal already made, rather than an application for dismissal of proceedings, indicates by itself that these considerations cannot operate in the same way. In addition to the matters to which the appellants referred, I consider that the considerations which are particularly important to the exercise of the discretion in this case are the appellants' explanations for their non-compliance with the Court's procedural requirements and their failure to prosecute the appeal diligently, whether there is any utility in setting aside the order, any prejudice which the appellants may suffer if the dismissal stands, and the public interest in the efficient conduct of litigation in this Court.

Evidentiary material 35 In addition to the decisions of Marshall J of 1 April 2014 and North J of 28 April 2014, the appellants relied upon the affidavits of Mr Carey sworn on 27 March 2014, 31 March 2014, 5 May 2014 and 13 May 2014, together with an affidavit of the appellants' solicitor, Mr Metaxas, sworn 28 April 2014. In resisting the application to set aside, Freehills relied upon the affidavits of their solicitor, Mr Tuohey, sworn 19 February 2014, 27 March 2014, 22 April 2014 and 14 May 2014, and the affidavit of a costs lawyer, Ms Young, sworn 28 February 2014.

The explanation for the procedural defaults 36 The evidence discloses a number of procedural defaults by the appellants in their conduct of the appeal. These include that: (a) The 21 day period within which the appellants should have commenced their appeal expired on 11 October 2013. As noted, the appellants did not commence the appeal until 13 December 2013; (b) Although the appellants were required to submit the draft appeal book indexes to the Federal Court Registrar by 3 February 2014 (rr 1.61(5) and 36.53(2) of the FCR and Practice Note App 2 at [4.2]), the indexes were not provided until 14 March 2014 and only then after numerous prompts, reminders and requests from Freehills' solicitors and from the Registrar. The appellants' solicitors did not provide the draft appeal book index to Freehills' solicitors for their consideration prior to submitting them to the Court; (c) The draft appeal book indexes which were submitted to the Registrar were deficient. Amongst other things, they contemplated the inclusion in the appeal book of material which had not been admitted into evidence at trial; omitted the inclusion of relevant material which had been admitted in evidence at the trial; and contained material in an inappropriate sequence. The appellants' solicitors accepted on 21 March 2014 that this critique of the draft appeal book indexes by Freehills was justified; (d) A hearing before a Registrar for the settling of the appeal book indexes was held on 27 March 2014. It was agreed then that the appellants would, by 3 April 2014, review the transcript of evidence from the trial to identify whether the documents marked for identification at the trial had later been admitted into evidence; that Freehills would consider the review by 7 April 2014; and that the appeal book indexes then be finalised. Although some communications occurred between the appellants' solicitors and Freehills' solicitors, the appellants had still not submitted the indexes to Parts A and B of the appeal book to the Registrar for approval by 18 April 2014 when the stay of the appeal pursuant to the order of Marshall J on 1 April 2014 came into effect; (e) Although the appellants' outline of submissions and chronology for the appeal hearing to commence on 15 May 2014 should have been filed by 14 April 2014 (Practice Note App 2 at [8.1]), the appellants have not filed any such outline or chronology. These defaults have to be viewed in the context that the appellants have known since 4 February this year that their appeal would be heard in May, and in the context that the Court had allocated its resources so as to allow the appeal to be heard on 15 and 16 May. In addition, it is evident that Freehills were preparing, in the conventional way, for the hearing of the appeal. 37 Although in default in a number of instances, the appellants have not once initiated action to obtain an extension of time, or otherwise to have their position accommodated. Instead, their conduct has been entirely reactive to the prompts, reminders and requests of the Court's Registrar and of Freehills, and then in a tardy fashion. 38 The appellants' conduct has been the antithesis of an efficient preparation of an appeal proceeding for hearing. Their non-compliance with the various procedural requirements has generated a considerable number of communications from, and to, the Court and Freehills which should have been unnecessary. It has thereby occasioned unnecessary expense and use of resources. 39 The explanation provided by the appellants for this sorry state of affairs is limited. In his affidavit sworn 28 April 2014, Mr Metaxas deposes to other work which he was carrying out "[w]hen the application for security for costs of the appeal was heard by Justice Marshall". That work included the preparation of a further re-amended statement of claim in proceedings in the Supreme Court of Western Australia (Action no COR 223 of 2009) in which companies of which Mr Carey is a director are the plaintiffs and Korda Mentha, the primary defendants. Mr Metaxas' affidavit indicates that the amended statement of claim in that action is a substantial document but I note that it involved the pleading of material which had been available to Mr Metaxas since late July 2013. Mr Metaxas also referred to work he had carried out in April 2014 in relation to the proceedings Action no COR 223 of 2009 involving the preparation of an affidavit by Mr Carey and an outline of submissions in opposition to an application for security for costs. Mr Metaxas also referred to work he had carried out for Mr Carey or Carey companies in late April 2014. 40 The inference in Mr Metaxas' affidavit is that he was preoccupied by his work on these other matters and unable to give proper attention to the preparation of the present appeal. However, Mr Metaxas does not make an express statement to that effect and it is pertinent that several of the procedural defaults identified earlier had occurred well before April 2014 in any event. 41 The affidavit of Mr Carey sworn on 5 May 2014 is also relatively uninformative in relation to the procedural defaults. That affidavit is concerned principally with the security for costs issue and culminates in Mr Carey stating his optimism that Earlmist Pty Ltd (Receiver and Manager appointed) (Controller appointed) as Trustee for the Earlmist Unit Trust will be able to raise the funds required to provide the security ordered. In [10] of this affidavit, Mr Carey acknowledges the requirement for the Court to operate "in a timely manner" and then deposes that the Court should also have regard to seven separate matters. However, none of those matters bears at all on the procedural defaults and want of prosecution which occurred between the delivery of judgment by Kenny J, on 20 September 2013, and 18 April 2014, when the appeal was stayed. Indeed, some of the matters to which Mr Carey deposed in [10] concern events which happened as long ago as late 2005. 42 This deficiency in Mr Carey's affidavit was noted by Ms Josan, this Court's National Appeals Registrar. After consulting with the Chief Justice, Ms Josan wrote to the appellants' solicitors on 8 May 2014 pointing out that Mr Carey's affidavit did not address or identify the grounds on which the order made by North J on 28 April 2014 to dismiss the appeal should be set aside. She requested the appellants to file a further affidavit "that briefly but specifically sets out the grounds on which the appellants say the Court should set aside North J's order of 28 April 2014". 43 The appellants then filed a further affidavit from Mr Carey sworn on 13 May 2014. Again, a large part of this affidavit concerns matters relating to the provision of security for costs. This seems to reflect a misapprehension by the appellants that it was their failure to provide the required security which was the sole or principal reason for the dismissal of the appeal. The grounds of the application to which Mr Carey deposed can be paraphrased as being: (a) It had been inevitable when Marshall J made the order for security on 1 April 2014 that "cash security" could not be provided within that time. (b) As the appeal had been stayed after 17 April 2014 as a result of Marshall J's order, the appellants had no need then to prosecute the appeal. (c) The respondents will not suffer prejudice from the hearing of the appeal being delayed until security can be provided. (d) The short notice given to the appellants of the hearing before North J on 28 April. (e) The omission of the appellants to take any action in relation to Marshall J's order of 1 April 2014 was explicable: the appeal had been stayed as a result of the Court's order and no action by the appellants was necessary in that respect; Mr Metaxas had in any event informed the Court on 22 April that security had not been provided; the appellants had not brought an application for an extension of time in which to provide the security because Mr Metaxas had devoted his time to preparing for litigation in the Supreme Court of Western Australia involving a member of the Westpoint Group; and the appellants had previously informed the Court (on 1 April) that they were unable to provide the security within the time ordered. (f) "[T]here is no reason to believe" that security cannot be provided if the appellants are given a reasonable time within which either to realise an asset or to borrow the required amount. (g) The appellants' failure to comply with the Rules regarding appeals was not contumelious but rather the product of competing demands on the appellants' solicitors. 44 After deposing to his decision not to have an instructing solicitor in Court during the trial conducted by Kenny J and not to order a transcript of the evidence during the trial, Mr Carey then set out a bare chronology of events as follows: (a) Mr Metaxas prepared and filed the Notice of Appeal filed on 13 December 2013; (b) draft indexes for the appeal books were compiled by Maria-Luisa Coulson who I engaged to assist because Mr Metaxas was then pre-occupied with other matters; (c) Ms Coulson was not present at the trial and she provided draft indexes for appeal book A and B to Mr Metaxas on 13 March 2014; (d) draft appeal book indexes were filed by Mr Metaxas on 14 March 2014; (e) there was an issue between the parties as to whether the indexes should include documents marked for identification by the trial Judge and otherwise not dealt with by her; (f) the solicitors for the parties and Registrar Pringle discussed this matter by telephone on 27 March 2014; (g) after the conference on 27 March 2014 with the Registrar Mr Metaxas discussed the MFIs with me and I told him what I understood to be the relevant facts so that he did not need to send someone to read the transcript; (h) between 27 March and 1 April 2014 Mr Metaxas prepared for the hearing of the respondents' application for security for costs including preparing my affidavits and submissions; (i) from about mid-March 2014 to 3 April 2014 Mr Metaxas devoted his time to completing the pleading in COR 223 of 2009; (j) on 7 April 2014 Mr Metaxas sent by email to Mr Tuohey an application to permit fresh evidence to be adduced in the appeal and to amend the grounds of appeal to deal with the MFI documents; (k) Mr Metaxas devoted his time in the period 7-11 April 2014 to the affidavit I swore on 11 April 2014 in COR 223 of 2009; (l) after the order for security for costs was made it was obvious that security could not be provided by 17 April 2014. As can be seen, with three exceptions, this chronology does not provide any explanation at all for the appellants' procedural defaults or want of prosecution of the appeal. The exceptions are in subpars (b), (i) and (k) in which Mr Carey deposes to Mr Metaxas being "pre-occupied" and having devoted his time to Action no COR 223 of 2009 in the Supreme Court of Western Australia, i.e., in effect having given priority to other matters. 45 In my opinion, this chronology, which was set out in [4] of Mr Carey's affidavit, cannot reasonably be understood as providing a satisfactory explanation for the procedural defaults identified earlier, and which caused North J to dismiss the appeal. Both Mr Metaxas and Mr Carey knew of the listing in this Court. It was incumbent on them, even in the face of other commitments, to give proper attention to the preparation of this appeal and, in the event of difficulties, to apply to the Court for an extension. It was not open to them to ignore the requirements of this Court or to arrogate to themselves decisions as to the manner in which the appeal would progress in this Court. 46 There are indications in the appellants' affidavits and submissions that, almost paradoxically, they considered that the stay contemplated by the order of Marshall J on 1 April 2014 would operate for their benefit. As they could not provide the security and knew the stay would come into effect, they considered that they were thereby relieved from doing anything further to progress the appeal. It also meant, it was said, that there was no prejudice to the Court or Freehills because there was no need for them either to do anything further in relation to the appeal until the security was provided. This was a wholly inappropriate view of the effect of Marshall J's orders. They could not reasonably be understood as having been made for the appellants' benefit, and it was not open to the appellants to think that their appeal was immune from dismissal. I note that Freehills had put the appellants on notice that they would seek the dismissal of the appeal in the event that the security was not provided. 47 In considering the appellants' procedural defaults and failure to prosecute the appeal diligently, regard should be had to the statement of the "overarching purpose" of the civil practice and procedure provisions stated in s 37M(1) of the FCA Act. That overarching purpose is to: … facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. Section 37M(2) elaborates the content of the "overarching purpose": (2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. Section 37M(3) of the FCA Act requires that the civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them must be exercised or carried out, in a way which best promotes the overarching purpose. By s 37M(4), the FCR form part of the civil practice and procedure provisions to which the section applies. 48 Finally, it is pertinent to note s 37N(1), which provides: (1) The parties to a civil proceeding before the Court must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose. Section 4 defines a "proceeding" to include an appeal. 49 Both the FCR and Practice Note App 2 contain stipulations in respect of which the appellants were in breach. 50 In summary, the appellants have not conducted themselves in relation to the appeal in a manner which is consistent with the overarching purpose contained in s 37M of the FCA Act. I consider that they have not provided a satisfactory explanation for the procedural defaults on which North J relied on 28 April 2014 in dismissing the appeal.

Utility in setting aside the dismissal 51 As already noted, counsel confirmed that the application to set aside was not pursued in relation to any of the deregistered appellants. I am also satisfied that there is no utility in setting aside the dismissal of the appeal in respect of the remaining corporate appellants. 52 The absence of utility in relation to those appellants arises from the circumstance that, although the appellants claimed that the trial had been for damages for loss said to have been caused by the alleged negligence and misleading or deceptive conduct of Freehills, trial counsel for the appellants had acknowledged that the corporate appellants had not incurred such a loss and that the claim for damages could be made only by Mr Carey in his personal capacity. So much is evident from the reasons of Kenny J at [443]-[444], 562-3: 443 From the outset, the Carey parties' fundamental claim was that, by reason of the Promissory Note Advice, they lost the opportunity to publicly list their shareholding in, or 'float', the companies in the Westpoint Group; alternatively, that they lost the value of their shareholding in the companies in the Westpoint Group: see amended cross-claim, particulars to paragraph 56. Other kinds of loss were also originally pleaded by the Carey Parties in their amended cross-claim, specifically, damages under s 87 of the TPA (or s 77 of the FTA) for Mr Carey's loss of remuneration as a result of the collapse of the Westpoint Group; depletion in the value of the other cross-claimants' assets and their loss of income. As previously noted, in the course of the trial, an application to amend in respect of claims by Vannin Pty Ltd and Earlmist Pty Ltd as "guarantor companies" was refused; and the loss said to have been occasioned to the non-shareholder cross-claimants was abandoned. Taking these matters into account, had the Carey parties made out the other elements of their misleading and deceptive conduct and negligence claims, I would have been required to focus on the loss said to be suffered by Mr Carey (and potentially Heca and Quartz to the extent that they were said to hold Mr Carey's interests for him), namely: the lost value of Mr Carey's shareholding; his lost remuneration; and the lost opportunity to publicly list his shareholding in the companies comprising the Westpoint Group. 444 In closing submissions, however, the Carey parties' claim for loss and damages was apparently further narrowed. In closing written submissions, the Carey parties stated that the relevant loss was "the lost opportunity to float the Westpoint Group" or "the loss of the chance to list" and claimed damages in respect of "the lost opportunity [that] arose from the planned public listing of the Westpoint Group". Mr Martindale SC confirmed in closing that it was "Mr Carey's loss, as the holder of the shares in the would-be float vehicle that we [are] focussing on". The other forms of claimed loss were not pursued. This summary by Kenny J has not been challenged, whether in the notice of appeal itself or in the affidavits and submissions relating to the present application. 53 Accordingly, it can be concluded confidently that the corporate appellants will not be prejudiced, and that no injustice will be occasioned to them, if the dismissal of the appeal stands. 54 The parties' submissions did not address the prospects of success on the appeal of Mr Carey in his own right, nor the question of whether any of his grounds of appeal are reasonably arguable. I acknowledge that the size and complexity of the judgment of Kenny J may mean that it is not practical for the Court presently to make a detailed assessment of those matters, but it is usual on an application of the present kind for the Court's attention to be drawn to at least some matters indicating that an appellant has an arguable case. 55 In these circumstances, I consider it appropriate to proceed on the basis that, if the dismissal stands, Mr Carey will not be able to pursue his appeal, but whether that will be a real cause of prejudice is a neutral consideration. 56 An important consideration affecting the utility of the orders sought by the appellants in relation to Mr Carey personally is that, even if the order of dismissal is set aside, the appeal will still be stayed, having regard to the order of Marshall J made on 1 April 2014. Unless and until the security is provided, he will not be able to take any further step to pursue the appeal. 57 As noted earlier, Mr Carey has expressed confidence that Earlmist can raise the funds required to provide the necessary security. He outlined a process by which Earlmist, as mortgagee of land known as the "Warwick Commercial Park" located within the Warwick Regional Shopping precinct in Western Australia, would offer Lot 961 (area 2,214m2) for sale by tender by a process called "fixed date sale". This process involves prospective purchasers submitting offers, without the seller having nominated a price. Mr Carey deposed that the process would involve 30 days for advertising and marketing, 30 days in which the offers could be submitted, and 30 days for settlement. Although Mr Carey did not depose to the amount which Lot 961 could be expected to realise by this process, he expressed his belief that funding would then become available within 90 days of the date of his affidavit. 58 Mr Carey also deposed to an alternative course by which Earlmist could raise funds by applying for a loan from various lenders using its interest as mortgagee of Lot 961 as security. Counsel said that the appellants had sought the adjournment of the proceedings before North J in order to depose to these matters. 59 In my opinion, the Court should exercise some caution about acting on Mr Carey's evidence about the prospects of the required security being provided. As is so often the case, actions speak louder than words. Freehills first raised the issue of security for their costs of the appeal with the appellants in December 2013. A period of private negotiation occurred before they filed their application in this Court on 19 February 2014. The appellants have, accordingly, had a considerable period of time in which to take the action now proposed by which to provide security but have not done so. On the contrary, Mr Metaxas has acknowledged that the appellants did not take any action at all before 17 April 2014 to provide security. 60 Further still, it is apparent that the provision of security using funds derived from the interest of Earlmist in Warwick Commercial Park is likely to involve litigation in the Supreme Court of Western Australia. Mr Metaxas acknowledged as much in the affidavit which he swore on 28 April 2014 in connection with the application before North J: [13] In order to put up the cash security as ordered by Justice Marshall the appellants have to utilise the interest of Earlmist Pty Ltd as first mortgagee of the Warwick Commercial Park - see Mr Carey's affidavits sworn herein on 27 and 31 March 2014. The receivers with whom Mr Carey has been in conflict since 2009 will have to be notified [of] the proposal to deal with the land and it is expected that they will seek to restrain the interest being so utilised. [14] The appellants have not yet sought that consent because they have been dealing with the matters above and other matters. The receivers are likely to oppose any use of the mortgagee's interest on the basis that they will probably dispute payment of the judgment debt in CIV 1094 of 2008. Mr Metaxas went on to depose that, in the event that the appeal was not dismissed, the appellants would undertake to seek the receiver's consent and make any necessary application to the Supreme Court of Western Australia within seven days. 61 The circumstance that the security required by Marshall J may only be able to be provided in the event that Earlmist obtains a favourable outcome in the foreshadowed proceedings in the Supreme Court of Western Australia means, in my opinion, that there is significant uncertainty as to whether the funds will become available and, even if they do, when that will occur. Put more shortly, it is evident that the provision of the ordered security is subject to the satisfaction of a contingency about which there is considerable uncertainty. 62 A further reason for caution is that these are not the only proceedings initiated by members of the Westpoint Group in which security for costs has been sought. Such security has also been sought in the proceedings in the Supreme Court of Western Australia (Action no COR 223 of 2009). Mr Carey has not deposed in any detail to the security sought in those proceedings, nor whether the proposed sale of Lot 961 will realise proceeds which will be sufficient to allow security to be provided in all proceedings involving members of the Westpoint Group. 63 If Mr Carey personally is the only proper appellant, there may be questions in any event as to whether it would be an appropriate use of Earlmist's funds for it to provide security in proceedings in which it has no interest. Counsel for Freehills referred to this issue, but did not develop it in the course of his argument. In the view I take, it is not necessary to address this issue further. 64 In summary, I consider that the appellants have not demonstrated the likelihood of real prejudice if the dismissal of the appeal stands, or that there is utility in the setting aside of the dismissal.

Other matters 65 The appellants submitted that Freehills would suffer "little or no" prejudice if the appeal were reinstated, but remain stayed until they were in a position to provide the ordered security. I do not accept that submission. 66 It is reasonable to infer that the very continuation of litigation is prejudicial to Freehills. That prejudice lies not only in the monetary costs which Freehills will incur in their continued defence of the appellants' claims, but in the allocation of resources necessary for the conduct of major litigation, the anxiety and worry which involvement in that litigation produces, and the possible effect on goodwill and reputation. The observations of Tadgell and Ormiston JJ in Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins and Sells [1999] 3 VR 863 at 887 are apposite in this context: Every case exposes defendants to risk and in complex cases that risk may extend over a number of years. But the nature of the claim and the potentiality for prejudice must be looked at in the light of the claims made. Where a claim is made against individuals relating to their probity or their competence, especially their professional competence, and the claim is for many millions of dollars, then it is not hard to infer that defendants against whom such allegations are made are under a heavy burden. When that burden is not merely deferred but then unjustifiably drawn out over many years, it is easier still to infer serious prejudice of the relevant kind to a defendant. It has sometimes been said that where a defendant is insured or likely to be insured then the prejudice is not so great … But where a claim extends beyond mere casual negligence to acts which reflect upon the competence or probity of a defendant, especially when that competence or probity is critical to the defendant's future livelihood, then the delay in bringing an action on for hearing will properly be held to impose severe additional prejudice on a defendant. This is particularly the case in claims alleging professional negligence, although such a description is not to be confined merely to the negligence of accountants, solicitors, doctors and the like for it is relevant to any person in respect of whom an unfavourable finding will be likely to place at risk his or her capacity to earn a living. The circumstances of this case may not be as stark as those considered in Bishopsgate Insurance, with the effect that the observations of Tadgell and Ormiston JJ may not apply with the same force. Nevertheless, they provide a clear articulation of the kinds of prejudice which defendants in the position of Freehills may suffer as a result of the dilatory pursuit of claims brought against them. 67 For these reasons, I consider that the appellants' bald submission that Freehills will suffer little or no prejudice if the dismissal of the appeal is set aside cannot be accepted. 68 Courts are sometimes sympathetic to the position of litigants who have been let down by their legal practitioners. Courts will often take the view that litigants should not be prejudiced in such circumstances. 69 However, the present does not appear to be such a case. Mr Carey appears to be actively involved in decision making regarding the manner of conduct in proceedings in which the appellants have been involved and in the allocation of resources to those proceedings. I note, for example, that Mr Carey gave instructions that his counsel should not have an instructing solicitor present at the trial, and instructions that a transcript of the evidence taken at the trial should not be obtained. Mr Carey was aware of the demands which he was placing on the time of Mr Metaxas. He was in a position to direct that additional resources be allocated to the prosecution of claims of the Westpoint Group. 70 The circumstances in which the appeal in this case was dismissed do appear to be somewhat peremptory. It is a matter which has given me pause. The circumstance that, despite dismissing the appeal, North J gave the appellants the opportunity within which to apply to have the order of dismissal set aside is a cause for further pause. 71 However, I note again that the Court is not presently sitting on appeal to review the decision of North J. The decision instead is whether the power to set aside the order of dismissal should be made. For the reasons already indicated, that involves different considerations.

Conclusion 72 I am not persuaded that the order for dismissal of the appeal should be set aside. The appellants have not provided a satisfactory explanation for their want of diligence in prosecuting the appeal and for their procedural defaults. There is no utility in any event in the setting aside of the dismissal in relation to the corporate appellants. Mr Carey has not sought to demonstrate that he has a reasonably arguable case on the appeal such that he will be prejudiced by an inability to pursue it. There will be prejudice caused to Freehills if the dismissal is set aside and it is appropriate for the Court to have regard to the overarching purpose to which ss 34M and 34N of the FCA Act refer. 73 Accordingly, the appellants' application of 7 May 2014 is dismissed. I will hear the parties as to costs. I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.

Associate: Dated: 31 July 2014 SCHEDULE OF PARTIES Second Appellant: QUARTZ NOMINEES PTY LTD (ACN 008 859 103) Third Appellant: HECA NOMINEES PTY LTD (ACN 053 581 874) Fourth Appellant: ACEBID PTY LTD (ACN 074 566 046) Fifth Appellant: ANDRIANNI PTY LTD (ACN 005 458 720) Sixth Appellant: ANN STREET BRISBANE PTY LTD (ACN 101 943 711) Seventh Appellant: BENNALONG HOLDINGS PTY LTD (ACN 008 741 008) Eighth Appellant: DOSIUS PTY LTD (ACN 009 449 450) Ninth Appellant: EARLMIST PTY LTD (RECEIVER AND MANAGER APPOINTED) (CONTROLLER APPOINTED) (ACN 069 056 926) Tenth Appellant: ETNAS PTY LTD (ACN 056 599 350) Eleventh Appellant: HEALTHCARE PROPERTIES PTY LTD (ACN 074 501 955) Twelfth Appellant: HUNTINGDALE VILLAGE PTY LTD (RECEIVER AND MANAGER APPOINTED) (ACN 085 048 531) Thirteenth Appellant: JEVWOOD PTY LTD (ACN 074 525 321) Fourteenth Appellant: K.I.S. REALTY PTY LTD (ACN 100 871 314) Fifteenth Appellant: KEEP IT SIMPLE INVESTMENTS (GLOBAL) PTY LTD (ACN 100 871 270) Sixteenth Appellant: NORTH SYDNEY DEVELOPMENT PTY LTD (CONTROLLER APPOINTED) (ACN 107 037 838) Seventeenth Appellant: PAQUERO PTY LTD (ACN 003 540 556) Eighteenth Appellant: PARAGON APARTMENTS LTD (RECEIVER AND MANAGER APPOINTED) (ACN 087 200 413) Nineteenth Appellant: RENAISSANCE MEZZANINE PTY LTD (ACN 110 978 491) Twentieth Appellant: ROMPRIDE PTY LTD (ACN 074 524 824) Twenty-first Appellant: SCOTS CHURCH DEVELOPMENT LTD (RECEIVER AND MANAGER APPOINTED) (ACN 091 686 323) Twenty-second Appellant: SILKCHIME PTY LTD (RECEIVER AND MANAGER APPOINTED) (ACN 066 849 429) Twenty-third Appellant: VANNIN PTY LTD (RECEIVER AND MANAGER APPOINTED) (ACN 067 610 271) Twenty-fourth Appellant: WARWICK ENTERTAINMENT CENTRE PTY LTD (RECEIVER AND MANAGER APPOINTED) (ACN 054 246 918) Twenty-fifth Appellant: WESTPOINT FINANCIAL SERVICES PTY LTD (ACN 074 148 324) Twenty-sixth Appellant: WESTPOINT MANAGEMENT (CENTREWAYS) PTY LTD (ACN 082 349 068)