Whether leave ought be granted
29 Mr Huber's contention, broadly, was that McElwaine J had not sufficiently considered his case, by disregarding both the 30 page notice of appeal and the Chapters document.
30 However, in our view it is clear that McElwaine J engaged closely and at length with the matters that Mr Huber wished to advance on appeal against Beach J's decision. On Mr Huber's own account, his Honour spent an entire afternoon going over each of Mr Huber's proposed grounds of appeal with him, including asking questions and entering into dialogue with Mr Huber on each of the grounds of appeal. During the hearing, Mr Huber referred his Honour not only to his 10 page notice of appeal, but also to the relevant paragraphs of his 30 page notice of appeal and the Chapters document that elaborated on each ground.
31 His Honour's reasons for judgment also demonstrate the close attention his Honour paid to Mr Huber's contentions. First, McElwaine J set out Mr Huber's proposed appeal grounds in full: PJ [43]. At PJ [70]ff, his Honour then addressed each of the proposed grounds in detail. For example, Mr Huber's first ground, as set out in the 10 page notice of appeal, contended that Beach J had erred in:
1. failing to objectively consider that the allegations made against the Appellant were so serious and had such serious consequences see Appeal Book Chapter1 Para16 that the evidence and issues presented in the case were required to be considered by application of the Briginshaw standard. This provision reflects Dixon J's discussion of the quality of persuasion required for this purpose in Briginshaw v Briginshaw [1938] HCA 34; [1938] 60 CLR336 at 361-2; [1938] HCA 34; [1938] ALR 334 at 342 (Briginshaw).
1.1 The Learned Judge ought to have recognised the seriousness of the allegations against the Appellant as Gzell J. did in Australian Securities and Investments Commission v Macdonald [No 11] [2009] NSWSC 287; [2009] 71 ACSR 368, [2009] 230 FLR1, and the potential consequences of civil penalty proceedings demanded the application of the Briginshaw standard. His Honour explained (at [182]-[186]) that: Section 140 of the Evidence Act 1995 prescribes the standard of proof in civil proceedings as the balance of probabilities and provides that the court may take into account in deciding whether it is so satisfied, the nature of the cause of action or defence, the nature of the subject matter of the proceedings and the gravity of the matters alleged.
1.2 the Learned Judge ought to have proceeded upon the basis that the Briginshaw standard applied following the recognition of the serious consequences, see appeal book Chapter1 Para similar to the decision by Spigelman CJ, Beazley and Giles JJA, in the Court of Appeal decision of Morley v Australian Securities and Investments Commission (2010) 274 ALR 205; [2010] NSWCA 331; Their Honours confirmed that that standard finds its modern expression in the terms of Section 140 of the Evidence Act 1995 (Cth) ('The Evidence Act') and that the Briginshaw standard is routinely applied in civil penalty proceedings.
1.3 applying the Briginshaw standard to the facts of the case which involved detailed accounting statements, required that he consider all of the information before him objectively. Instead, the Learned Judge applied a subjective standard where he preferred the statements proffered by the Respondent over those of the Appellant based on his incorrect assessment of relative credibility of the witnesses. as follows: See Appeal Book Chapter1 paragraph10 to 15
(emphasis in original).
32 Justice McElwaine addressed the ground as follows (PJ [70]-[72]):
70 Ground 1 on its face is of no merit and has no prospect of success. It is inconceivable that Beach J was not cognisant of the fact that serious allegations were made against and by Mr Huber. His Honour clearly understood that it was a case of significant broad scale and complex fraud and said so on multiple occasions: for example, LJ [15], [17] and [23]. It is quite wrong to imply, as this ground does, that his Honour did not mention Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) at 362, per Dixon J. He did (at LJ [834]) in the context of satisfaction that fraud is a serious allegation. Moreover, plainly his Honour did not make findings of fact based on "inexact proofs, indefinite testimony, or indirect inferences": Briginshaw at 362. Rather, he proceeded in accordance with the oral testimony of many witnesses, who he found to be honest, and by a meticulous examination of the contemporaneous documents. At LJ [181] his Honour explained that he had no intention of listing every share transaction to or from the Huber entities; instead he focused on "some particularly relevant or large transactions". The findings of fact that his Honour made relating to those share transfers were based on the documents adduced in evidence at the trial.
71 The assertion that his Honour did not objectively assess the evidence to make findings of fact is devoid of any merit and contrary to the detailed and extensive evidentiary analysis and factual findings as set out in the liability judgment and the relief judgment.
72 The jumble of authorities referenced in this ground which have applied the Briginshaw analysis do not assist in identifying where and in what respects his Honour erred in misunderstanding the quality of the evidence required to make out the fraud allegations. Expressed at a level of generality that fails to reveal error, Mr Huber contends that his Honour made an incorrect assessment of the credibility of unidentified witnesses. On one view, this may be taken to include a reference to paragraph [39] of the liability judgment where his Honour summarised his overall conclusion that he did not have confidence in the reliability of Mr Huber's evidence generally or the weight that should be afforded to it. The paragraph concludes with the finding that Mr Huber's evidence was given little weight except where independently corroborated or adverse to interest. This ground is hopeless.
33 His Honour's consideration of this ground does not disclose any lack of engagement with Mr Huber's complaint. Rather, the above extract demonstrates that McElwaine J considered every aspect of the ground:
(1) the broad contention that Beach J did not consider that the allegations against Mr Huber were serious, which is addressed in detail at PJ [71];
(2) the contention that Beach J should have proceeded upon the basis that the "Briginshaw standard" applied, based on the seriousness of the allegations, also addressed at PJ [71]; and
(3) the contention that Beach J had incorrectly assessed witnesses' credibility, and had applied a subjective rather than objective standard to considering the information before him, addressed at PJ [72] and [73].
34 His Honour's consideration of the remaining grounds followed the same, thorough approach.
35 It is true that McElwaine J did not refer to the Chapters document or the 30 page notice of appeal in his Honour's consideration of the proposed grounds of appeal. His Honour said (at PJ [63]): "I confine my analysis to the nine grounds as set out in the proposed notice of appeal. I do not read that document as informed by or incorporating the corresponding Chapters document". The primary judgment also does not refer at all to the supplementary 30 page notice of appeal provided by Mr Huber. Nevertheless, there is no injustice to Mr Huber in what occurred. As Mr Huber explained, his Honour engaged, at length, and in detail, with Mr Huber at the hearing in relation to the Chapters document and the longer version of the notice of appeal. It was open to McElwaine J to determine the applications before him based on the 10 page notice of appeal, notwithstanding that his Honour permitted Mr Huber to conduct his argument by referring to his other documents, namely the 30 page notice of appeal and the Chapters document. In this context, in confining his dispositive reasoning to the grounds as set out in the 10 page notice of appeal, McElwaine J did so having been taken to, and being aware of, the wider canvass of Mr Huber's contentions. While Mr Huber may feel his time was, in retrospect, wasted in having traversed aspects of the Chapters document and the longer notice of appeal with McElwaine J, there was no procedural unfairness to him as a result. If anything, there was a procedural indulgence.
36 In any event, the 10 page notice of appeal identified nine substantive grounds of appeal. Justice McElwaine engaged closely with each of these grounds, having clearly read and carefully considered the reasons of Beach J. As explained above, no error was alleged in the manner in which McElwaine J addressed those nine proposed grounds, or in his Honour's conclusions that none had merit (besides an unfounded allegation of bias in the notice of appeal before this Court, which was not pursued in oral submissions).
37 To the extent that Mr Huber complained of McElwaine J having reduced the page limit for his notice of appeal to 10 pages, in circumstances where his Honour closely considered Mr Huber's complaints against Beach J, by engaging with each of his nine proposed grounds of appeal in the manner we have outlined above, we do not consider Mr Huber was denied any procedural fairness or an adequate opportunity to advance his case. Further, it is unclear to what extent this complaint accurately characterised the directions of either McElwaine J or Davies J. In his Honour's reasons, McElwaine J recorded (at PJ [69]) that Mr Huber submitted to his Honour "that a reason for preparing his Chapters document is that Davies J limited his notice of appeal to 10 pages". That submission is inconsistent with the submission advanced before this Court (namely that McElwaine J backtracked on Davies J having permitted, and accepted, a 45 page notice of appeal).
38 Furthermore, in the affidavit material before this Court, Mr Huber set out his basis for contending that McElwaine J had made an "illogical and unjust order limiting the proposed notice of appeal" as an email from his Honour's associate, which (as quoted by Mr Huber) included the line: "The filing of written submissions by the parties, which his Honour considers should be strictly limited to a maximum of 10 pages, minimum 12 point type face and one and one half line spacing" (emphasis in original). On its face, the extract quoted by Mr Huber does not concern any page limits for his notice of appeal. Rather, it concerned written submissions.
39 In any case, McElwaine J's reasons closely engaged with Mr Huber's application for leave to proceed with his appeal (with the application for a stay of the liquidation following in the wake of that larger issue). We do not consider that his Honour's reasons are attended by sufficient doubt to warrant the grant of leave to appeal. On the contrary, the complaints raised before us lack merit, and we would reject them even if leave to appeal were not required. Further, to succeed in his application, Mr Huber needed to identify House v The King errors. No such errors were identified. Indeed, as we have said, Mr Huber has not advanced any substantive complaints concerning his Honour's judgment, but, rather, has only identified procedural complaints, which we have rejected.
40 The application for leave to appeal McElwaine J's judgment refusing leave to proceed with the proposed appeal is dismissed. It follows that the separate issue in relation to Mr Huber's application to stay the liquidation pending the proposed appeal does not arise for determination.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Anderson, McEvoy and Button.