In the matter of Idylic Solutions Pty Ltd & ors - Australian Securities and Investments Commission v Hobbs

Judgment 1HER HONOUR: By notice of motion filed on 2 April 2012, ASIC sought various orders in relation to the conduct of these proceedings, the hearing of which has been listed before me to commence on 20 June 2012 for 8 weeks. The applications brought under that notice of motion fell broadly into three classes: an application for leave to adduce as evidence transcripts of examinations conducted in the United States of America in January 2010 of a Ms Reisinger, who is resident in that country (which application I heard and dealt with on 17 April 2012); an application for leave to issue subpoenas to nine New Zealand residents (which I dealt with, other than in respect of one such witness, on 11 April 2012 and in respect of the remaining witness on 16 May 2012); and an application for leave pursuant to s 50 of the Evidence Act 1995 (NSW) for ASIC to adduce, as evidence of the contents of over 6,000 documents, a number of summaries that have been prepared either by a senior investigator of ASIC in its Financial Economy - Deterrence Team, Mr Peter Connor, or by a chartered accountant and registered liquidator (who was appointed as liquidator of two of the schemes the subject of the present proceedings - the Super Save Superannuation Fund and the Integrity Plus Unit Trust - on 20 June 2008 and still remains the liquidator of one of those schemes), Mr Barry Taylor. (In each case the documents sought to be adduced as summaries under s 50 were prepared with the assistance of staff under the supervision of Mr Connor or Mr Taylor respectively). 2Having read the evidence relied upon by ASIC and the evidence filed in April this year by the Hobbs interests in relation to the s 50 application, and having heard submissions in relation thereto both prior to and on 16 May 2012, I reserved my judgment on ASIC's s 50 application. I now publish my reasons on that application. Introduction 3In support of its s 50 application, ASIC relies on an affidavit sworn on 2 April 2012 by Ms Meredith Florence Dodds, the solicitor who, under the supervision of ASIC's Special Counsel, Litigation, has responsibility for the planning and conduct of these proceedings. Exhibited to Ms Dodds' affidavit were copies of affidavits sworn 30 March 2012 by each of Mr Connor and Mr Taylor together with the exhibits to their respective affidavits. Further affidavits sworn by Mr Connor on 11 April 2012 and 14 May 2012 have also been filed in support of the s 50 application. 4On the return date of the notice of motion on 11 April 2012, Mr M Southwick of Counsel appeared for the first, eighth and eleventh defendants (the Hobbs interests) and filed in Court a Notice of Appearance on their behalf, signed by a solicitor with the firm Prime Lawyers. (There was on that occasion also an appearance by Mr A Hartnell, solicitor, on behalf of Mr Collard (the third defendant), although Mr Hartnell made it clear that he was instructed to appear only on the return of the notice of motion and Mr Collard has since filed a submitting appearance except as to costs in relation to the proceedings.) 5On that date Mr Southwick sought, and I granted, a short adjournment of the s 50 application on the basis that (although having been briefed in the matter some time previously) he had only recently received a fresh brief to act in the matter and had not had an opportunity to review all the material in relation to the Notice of Motion. In particular, he indicated that there had been a difficulty with receipt by the Hobbs interests of the exhibits to the relevant affidavits by email or otherwise. 6There was an objection foreshadowed to the admission of the summaries sought to be tendered as evidence on the basis of the lateness of service of the affidavits in relation thereto; the lack of a reasonable opportunity to examine the documents; and (at least in relation to the summaries exhibited to Mr Taylor's affidavit) on the basis of a concern that these were not summaries for the purposes of s 50, in that they involved an exercise of judgment on the part of Mr Taylor (and that the application to adduce the summaries prepared by him as evidence was under s 50 an attempt to adduce expert evidence without leave). 7Mr Southwick filed in Court on that occasion an affidavit sworn by the solicitor with the then conduct of these proceedings on behalf of the Hobbs interests (Mr Eric Saad), who has deposed to the receipt by his firm of instructions to act in this matter on 5 April after an enquiry made of the firm on 27 March 2012. Mr Saad deposed that his clients had been served with the affidavits of Mr Taylor and Mr Connor on 31 March 2012 but not with the exhibits to those affidavits; had been served on 2 April with a letter in relation to the present notice of motion and the affidavit of Ms Dodds, but not the exhibits thereto; and that, as at 11 April, the position was that he did not have the exhibits to either Mr Taylor's affidavit or that of Mr Connor. Annexed to his affidavit were copies of emails from ASIC indicating that the exhibits were to be sent to Mr Hobbs by courier. (On 16 May 2012, Counsel for ASIC, Mr Clarke, informed me that, although attempts had been made by a courier to effect service of the hard copy exhibits on 2, 3 and 5 April 2012, those attempts had been unsuccessful and a message had been left for Mr Hobbs explaining that the documents were available for collection from the courier company.) 8As I understand it, therefore, although certain of the material sought to be relied upon in relation to the s 50 application had been served by email as at 5 April 2012, Mr Hobbs did not physically receive the hard copy exhibits until some time after that date. However, service of the documents had occurred at the latest by 11 April, since Mr Southwick informed me on that date that he had received the hard copy documents from ASIC variously on 10 and 11 April 2012. 9As indicated above, I stood that part of the Notice of Motion relating to the s 50 application (as well as other unrelated parts of the Notice of Motion) over to 17 April 2012. On that occasion, Mr Southwick again appeared for the Hobbs interests, instructed by Prime Lawyers, and a further affidavit sworn by Mr Saad was read (it having been served that morning on ASIC, only shortly before 10am). ASIC then sought an adjournment of the s 50 application in order to deal with various of the matters raised in that affidavit (in particular, assertions made by Mr Saad as to the incorrectness of information in the spreadsheets/schedules given his inability to source, in the spreadsheets/schedules, certain of the entries appearing in the underlying documents). 10Mr Southwick made various oral submissions in relation to the position taken by the Hobbs interests at that stage in respect of the s 50 application. I then stood that part of the Notice of Motion over to 16 May 2012 for hearing and made certain directions as to the notification by the Hobbs interests of ASIC any further objection in relation to the content of the summaries and then as to the filing of any further evidence by them and by ASIC in reply. 11By the time the matter returned on 16 May (indeed very shortly after the interlocutory hearing on 17 April 2012), an issue arose as to the representation of the Hobbs interests by Prime Lawyers (due, according to Mr Saad, to Mr Hobbs' failure to meet a deadline for the payment of certain fees). On 26 April 2012, a Notice of Intention to Cease to Act was served by Prime Lawyers on the Hobbs interests and, though not in compliance with the relevant provisions under the Uniform Civil Procedure Rules, a Notice of Ceasing to Act was filed in the Court Registry on 3 May 2012. This did not come to my attention until the week commencing 14 May 2012. When it did, I directed, through my tipstaff, that there be an attendance in court by a representative from Prime Lawyers on the date that had been fixed for the hearing of the balance of ASIC's Notice of Motion (on 16 May 2012). At that time, a formal application for leave to withdraw was made by Mr Saad. (There was no appearance by Mr Southwick on that occasion.) 12In due course I gave leave to Mr Saad's firm to withdraw as solicitors on the record for the Hobbs interests (but such leave was to take effect only after, which has since occurred, they reported to the Hobbs interests as to the outcome of the proceedings on 16 May 2012). I imposed that condition on the grant of leave as I wished to ensure that, as a matter of procedural fairness, the Hobbs interests were fully informed as to the interlocutory steps that were taken in the proceedings on 16 May 2012. 13I should also add that in the period between 17 April 2012 and 16 May 2012 (during most of which time my staff were not in chambers) a number of communications were sent, addressed to me, from various persons (including Mr Hobbs and his wife), in relation to this matter (including affidavits as well as an application by Mr Hobbs to vacate a hearing identified by him as to be on 1 May). From the material it appeared that this application was put on the basis of his medical condition and lack of legal representation. None of that material appeared to have been formally filed in the Court registry. Nor was it apparent on the face of the correspondence that it had been copied to ASIC (and so, on 14 May 2012, as a matter of procedural fairness, I arranged for my tipstaff to forward a copy of those communications to ASIC's legal representative). Relevantly, the material did not seem, at least directly, to address the issue as to the application to adduce the summaries in evidence nor has anything served since done so. 14As noted above, on 17 April 2012 I had directed that the Hobbs interests identify any further objection to parts of the summaries in respect of which it was maintained that these were not truly summary in form and for ASIC then to serve any further evidence on which it wished to rely in its application to adduce the summary evidence. It was made clear by Mr Clarke on that occasion that ASIC's intention was to rely on the summaries in question either as evidence (if leave were granted pursuant to s 50) or (if leave were not granted for the summaries or any part of them to be adduced as evidence of the contents of the documents) as a submission. It was further made clear, on both 11 and 17 April 2012, that if the s 50 leave were not granted then ASIC would tender each of the underlying documents from which the summaries had been compiled and would in due course make submissions as to the conclusions that should be drawn therefrom (handing up the summaries as aides memoire where appropriate). 15In circumstances where the Hobbs interests had been represented on the previous two occasions when the s 50 application had been before the Court; were on notice of the intention to make this application since before April 2012 and were on notice of the actual application from the time the Notice of Motion was filed on 2 April 2012; had presumably had the benefit of advice in relation to the application at least up until Prime Lawyers had ceased as a practical matter to act for them (which Mr Saad's evidence indicated was from on or about 19 April 2012); had, through both Mr Saad's affidavits and Mr Southwick's submissions, raised issues as to the content of the summaries and the s 50 application itself; had been on notice of the application being listed for hearing on 16 May 2012 from at least shortly after the 17 April directions hearing; and had not expressed any views on the s 50 application (as opposed to other matters dealt with in relation to the Notice of Motion or the hearing date itself) in the communications forwarded to my chambers, I considered it was appropriate (in the interests of the just, quick and cheap resolution of the real issues in dispute and in the interests of efficient case management in the Court) to proceed with the application on that day. 16Mr Saad was in attendance, though without instructions on the matter, and able to raise any issues he considered warranted in his client's interests consistent with his former instructions and it remains open to the Hobbs interests (should they cavil with any rulings I might ultimately make on the application) to seek a variation of those orders or for them to be set aside. 17For those reasons, I proceeded to hear the s 50 application. Legislative Provision 18Section 50 of the Evidence Act 1995 (NSW) provides as follows: 50 Proof of voluminous or complex documents (1)The court may, on the application of a party, direct that the party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question. (2)The court may only make such a direction if the party seeking to adduce the evidence in the form of a summary has: (a)served on each other party a copy of the summary that discloses the name and address of the person who prepared the summary; and (b)given each other party a reasonable opportunity to examine or copy the documents in question. (3) The opinion rule does not apply to evidence adduced in accordance with a direction under this section. 19What constitutes a summary of the contents of documents, for the purposes of an application under s 50, and the operation of the section itself, has been considered in relatively few authorities (Gate Gourmet Australia Pty Ltd (in liq) v Gate Gourmet Holding [2004] NSWSC 768 by Einstein J; Beattie & Sutherland v Osman (No 3) [2009] NSWSC 824 by White J; and Thackray v Gunns Plantations Ltd (2011) 85 ACSR 144 by Davies J in the Supreme Court of Victoria). The section has also been the subject of comment in Odgers, Uniform Evidence Law (9th ed, 2010) at [1.2.5220]. 20Most recently, in Thackray, Davies J approached the construction of the Victorian equivalent to s 50 on the basis that it should not be given a restrictive or narrow interpretation, bearing in mind that the intended purpose of the section is to permit summary evidence "in the event that the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question, so long as the other party has seen the summary and been given a reasonable opportunity to examine or copy the documents" (at [66]). Summaries sought to be adduced as evidence 21What ASIC seeks leave to adduce, as summaries under s 50, are the following spreadsheets or schedules (which I have identified using the descriptions accorded to them in the respective affidavits and by reference to the tabs behind which each is to be found in the exhibits thereto) exhibited to Mr Connor's affidavit of 30 March 2012 and Mr Taylor's affidavit of 30 March 2012, respectively: Spreadsheets exhibited to Mr Connor's affidavit (i)ASIC scheme spreadsheets (tabs 2, 43, 48, 61, 67, 80, 89, 93, 115, 144 and 148); (ii)Summary tables (which, as explained below, contain specific categories of information extracted from the relevant ASIC scheme spreadsheets) (tabs 3-42, 44-47, 49-60, 62-66, 68-79, 81-88, 90-92, 94-114, 116-143, 145-147 and 149-161); (iii)Return spreadsheets (which it is acknowledged contain calculations performed on specific data taken from the summary tables, that data itself being extracted from the ASIC scheme spreadsheets and the Liquidator's spreadsheets as defined in [23] of Mr Connor's affidavit) (tabs 162-165); (iv)The Hobbs Scheme spreadsheet (containing information extracted from the ASIC scheme spreadsheets) (tab 166); (v)The RBA spreadsheet (reproducing RBA exchange rates for the period 1999-2009) (reliance being placed on s 85A of The Reserve Bank Act as permitting judicial notice to be taken of RBA published statistical information) (tab 167); (vi)The Super Save spreadsheet, Integrity Plus spreadsheet and Collard Schemes Spreadsheet (each containing information extracted from the Hobbs Scheme spreadsheet) (tabs 168, 169 and 170, respectively) (to which I have referred in these reasons as the "miscellaneous scheme spreadsheets"); and (vii)The Treasuries spreadsheets (extracting information contained in what are defined as the Cadent account documents) (tabs 171-177). Schedules exhibited to Mr Taylor's Affidavit (i)Super Save Summaries (tabs 5, 6, 37-41) (prepared following the review of statements for the scheme accounts, promoter spreadsheets and investor information forms as deposed to by Mr Taylor in his affidavit); (ii)Integrity Summaries (tabs 42, 43, 78-80, 82-83) (prepared in a similar manner from the information corresponding to the above but in relation to the Integrity Plus scheme); and (iii)Destiny Summaries (tabs 85-86) (again prepared following a review of the corresponding information for the Destiny scheme). 22An explanation was given by each of Mr Connor and Mr Taylor as to the manner in which the respective schedules or spreadsheets were compiled and as to the underlying documents from which the information said to be summarised in those documents was drawn. In order to understand the objection raised by Mr Southwick for the Hobbs interests to their admission in evidence it is necessary to set out in some detail the explanation given as to how the documents were created and what they comprise. Exhibits to Mr Connor's affidavit 23As noted above, Mr Connor is a Senior Investigator with ASIC. Exhibited to his 30 March 2012 affidavit are documents collated behind tabs numbered 1 to 177. Behind tab 1 is a DVD containing images (in PDF form) of all of the underlying documents to which reference is made in his affidavit (and from which information has been extracted as explained in Mr Connor's affidavit) together with an Excel spreadsheet indexing the underlying documents. I am informed by Mr Clarke that there are 5,007 documents on the DVD. 24In issue in the proceedings are a number of different schemes. Mr Connor explains that a different set of spreadsheets/summary tables has been prepared for each of the different schemes. The compilation of the spreadsheets/schedules for each scheme follows the same pattern. There is a main scheme spreadsheet (referred to as an ASIC scheme spreadsheet) under the first of the tabs relating to each particular scheme from which information has been extracted for the purpose of the preparation of a number of tables described as summary tables and other spreadsheets (some of those other spreadsheets also drawing on information contained in documents prepared by Mr Taylor and his staff in relation to the two schemes of which he is the liquidator - referred to as the Liquidator's spreadsheets). Other than the information copied and pasted from the official RBA sources, and (perhaps) any calculations performed in relation to the information extracted in the ASIC scheme spreadsheets, all of the information in the summary tables and following spreadsheets has been sourced (directly or indirectly) from the underlying documents. 25Mr Connor deposes at [14] that he has personally compiled the ASIC scheme spreadsheets (as defined in his affidavit) for four of the schemes. Other members of the ASIC team (identified in his 11 April affidavit), at his direction and under his supervision, have compiled the ASIC scheme spreadsheets for the remaining schemes. 26At [15], Mr Connor explains that each ASIC scheme spreadsheet summarises the following information for the relevant scheme: (a)information recorded in statements for the bank and/or Technocash accounts of the scheme (being the accounts pleaded in the paragraphs 135, 166, 179, 193, 203, 211, 219, 225, 235, 241, 248, 255, 258 and 266 of the Second Further Amended Statement of Claim for the period during which ASIC alleges that each of the schemes operated - referred to as the "scheme accounts") (b)information recorded in transaction specific records of the bank and/or of Technocash (referred to as the "transaction records") (c)information recorded in receipts issued to customers by banks (referred to as the "transaction receipts"); and (d)information recorded in some of the documents which are relevant to the scheme (referred to as the "scheme documents"). Mr Connor deposes that all of the documents referred to in [15] have been copied into the database prepared for the litigation. 27At [21] of his affidavit Mr Connor provides further information as to the information contained in each of the columns of each ASIC scheme spreadsheet and the source of that information (being the documents referred to in [15(a)] to [15(d)] of his affidavit, copies of which are to be found on the DVD). 28The ASIC scheme spreadsheets list (row by row) information as to debit/credit transactions by reference to bank account number, date, description, currency, characterisation (for example, and without being exhaustive, referring to investment of capital, bank interest, bank fees, currency conversion, "other payment", transfer from trader, Secured Bond Ltd Shareholding Profit Pay Out), bank record payer/payee, scheme record payer/payee and scheme record payer/payee's IBC). There is no entry representing any total of the amounts so listed in the spreadsheets. 29Relevantly, having regard to one of the objections raised to the characterisation of this material as a summary, Mr Connor deposes that the column in the ASIC scheme spreadsheets headed "Bank Record Payer/Payee" identifies the person or entity recorded in the bank or Technocash statements and any underlying bank or Technocash records for the scheme account that, in relation to a debit to the scheme account, received the corresponding credit and, in relation to a credit to the scheme account, made the corresponding debit. The column headed "Scheme Record Payer/Payee" contains similar information referable to the scheme records. The column headed "Scheme Record Payer/Payee's IBC" contains the International Business Company (IBC) number of the payer/payee as recorded in the scheme records. 30Pausing there, on their face the ASIC scheme statements do not purport to be anything more than a recitation of information in relation to particular transactions (which information Mr Connor deposes was summarised from the underlying documents). If it were to be shown that the column headed Characterisation involved the exercise of judgment as to the nature of the transaction so recorded, then the position might be different but as I understand it the information recorded in this column is drawn from what appears on the underlying documents in relation to each particular transaction (and there was no suggestion otherwise by the Hobbs interests after their representatives had carried out an initial review of the spreadsheets). 31In relation to each scheme, following the preparation of the ASIC scheme statements, documents referred to as "summary tables" were prepared. Mr Connor deposes that these tables summarise select data extracted from the ASIC scheme spreadsheets. 32At [20] of his affidavit, Mr Connor sets out separate tables (one for each of the 11 schemes), providing an index to the tables and identifying in each case the ASIC scheme spreadsheet for the relevant scheme and the summary tables derived from that ASIC scheme spreadsheet (and containing a brief description of the data contained in each of the summary tables, referring to the paragraph of the Second Further Amended Statement of Claim to which it relates). Mr Connor confirms that the contents of the summary tables were derived in each case from information already summarised in the relevant ASIC scheme spreadsheet. 33Logically, to the extent that the information contained in the summary tables (for example, those for the Master Fund are to be found at tabs 3 to 42 to the exhibit to Mr Connor's affidavit) is a subset of the information in the main scheme spreadsheets then it could also be sourced directly in the underlying documents themselves (even though the manner in which the summary tables have been compiled has been physically to extract the information therein from the information already summarised in the ASIC scheme spreadsheet). 34The respective summary tables do, however, contain an additional entry, namely a total (appearing at the foot of the respective summary tables) of the amounts in the listed entries in that table. Mr Clarke confirmed that these totals relate directly to allegations contained in particular paragraphs of the Second Further Amended Statement of Claim (as identified in [20] of Mr Connor's affidavit) and has foreshadowed that, at the final hearing, ASIC will submit that those summary tables identify the amounts and the payments referred to in each of those relevant paragraphs of the pleading. 35The balance of the spreadsheets prepared in respect of each scheme and exhibited to Mr Connor's affidavit are the return spreadsheets, RBA spreadsheet, Hobbs Scheme spreadsheet, miscellaneous scheme spreadsheets and the Treasuries spreadsheet. A brief description of those follows. 36As to the return spreadsheets, at [25] of Mr Connor's 30 March affidavit he explains that these were compiled by reference to material extracted from the "scheme spreadsheets" (defined at [23] to include the ASIC sceme spreadsheets, to which I have already referred, and certain spreadsheets that were compiled by Mr Taylor and which had been reviewed by Mr Connor at the time of preparation of his affidavit - those being the Liquidator's Scheme spreadsheets in relation to the Integrity Plus Unit Trust (in Liquidation) Capital Reconciliation Work Sheet and the Reconciliation of Investor - Capital Returns for the Super Save Superannuation Fund spreadsheet. 37The return spreadsheets were compiled by another employee of ASIC (Mr Peck), under Mr Connor's direction and supervision. Mr Connor explains that the compilation of these spreadsheets was in order to identify the extent to which the accounts and trading positions of the commodity trading advisors who traded in relation to each of the Master Fund, Super Save Superannuation Fund, Enhanced Fund, and Integrity Plus Unit Trust, were in profit or loss at the time when each payment of returns, commissions or dividends to shareholders was made from the scheme accounts for each of those funds. The return spreadsheets are to be found at tabs 162 to 165. 38The manner in which the return spreadsheets were compiled is explained in [26] and [27] of the affidavit: in essence, it is said that the ASIC team 'filtered' the scheme spreadsheets for the corresponding scheme to identify the dates on which payments bearing the transaction characterisation of 'return', or 'commission', or 'return pay out' were made. (In the case of the Super Save and Integrity Plus funds, the relevant extracts were of payments characterised as 'investor return', 'RTN' or 'commission out'.) Thus far, the exercise seems to have been an administrative one of identifying in each of the funds the dates of entries in the scheme spreadsheets in respect of which a particular transaction characterisation or payment type is shown. Those entries were extracted and the information in relation to those transactions was set out in columns showing the returns, commission and (where applicable) shareholder payments paid on the particular date. 39Mr Clarke thus describes the process that was undertaken as one whereby information in an existing summary spreadsheet was analysed (but not altered) and some of the information was then extracted and placed into another spreadsheet. 40Mr Connor describes (at [28]) what information is there recorded. Certain of the columns record the total of the amounts listed in the respective row or column. In the case of the Integrity Plus return payment spreadsheet there were additional rows recording information drawn from other documents identified in [29]. 41At [31], Mr Connor explains how the Hobbs Scheme spreadsheet (contained at tab 166) was created. Again, information was extracted from the ASIC scheme spreadsheets following an exercise in which transactions with a particular transaction characterisation were identified. These were copied and pasted into a new spreadsheet with the addition of the name of the scheme and with the deletion of some of the columns that appeared in the original scheme spreadsheets. The rows were then sorted chronologically and a column was added recording information from wither the Bank Record Payer/Payee column of the ASIC scheme spreadsheets or the person recorded in the Description column of the Liquidators' Scheme spreadsheets. Relevantly, there were columns added setting out the currency exchange rates at the relevant times (drawn from the RBA published information) and there was a calculation as to the Investment A$ equivalent or Withdrawal $A equivalent. (There is a question as to whether those calculations would properly be characterised as a summary, which I consider in due course.) 42Mr Connor explains that the Australian dollar equivalent of some of the amounts recorded in the Hobbs Scheme spreadsheet was calculated by reference to the exchange rates published by the Reserve Bank of Australia for the years 1999 to 2009. Those published rates were downloaded, then copied and pasted into the spreadsheet at tab 167 ([31(f)]). 43Three further spreadsheets (the miscellaneous scheme spreadsheets) were prepared by Mr Peck, at Mr Connor's direction, again extracting information from the ASIC scheme spreadsheets, in the manner referred to in [32]: those being the Super Save spreadsheet, Integrity Plus spreadsheet, and the Collard scheme spreadsheet (tabs 168, 169 and 170). The information extracted from the earlier spreadsheets was organised in columns that include exchange rate details. The data in certain columns (those headed Scheme Members, Scheme Members in 12 Months to Date and Amount Raised in $A in 12 months to date) was said to have been re-calculated for those spreadsheets (and, as I understand it, Mr Clarke conceded that the data from some of the rows involved more than simply the extraction of information already summarised in the earlier spreadsheets). 44Finally, the Treasuries spreadsheets (referred to at [35] and appearing at tabs 171 to 177) were compiled by Mr Connor (with assistance from others in the Hobbs investigation team at ASIC) to summarise the purchase and sale of US Treasuries as recorded in the Cadent documents for the Cadent accounts in the names of certain listed entities. The process undertaken to prepare those spreadsheets is explained at [36]. At [36(c)], Mr Connor says that the amounts appearing in particular columns on those spreadsheets were calculated by adding up to the relevant date all of the amounts in certain columns and subtracting amounts recorded in other columns (see [37] and [38]). 45Mr Clarke submits that the information in the Treasuries spreadsheets is drawn from that in other spreadsheets, and in turn, the underlying documents but he concedes that there is some calculation involved in the preparation of those spreadsheets - referring in particular to the calculation of the amount of the Total Par Value of Treasury STRIPS and Prin STRIPS (which he says was done according to the formula described in [36(c)] and cross-checked as described in [36(d)]. Mr Taylor's affidavit exhibits 46In relation to Mr Taylor's affidavit, the documents sought to be adduced under s 50 as summary evidence of the contents of underlying documents are the schedules listed in the contents page to Mr Taylor's affidavit as being at tabs 5 (the Super Save Reconstructed Bank Accounts Schedule), 6 (the Super Save Summary Schedule), 37 (the Reconciliation of Investments Schedule), 38 (the Investor Capital Matching Schedule), 39 (the Investor Distribution Matching Schedule), 40 (the Super Save Investor Schedule), 41 (the Super Save Summary of Commissions schedule), (those being in relation to the Super Save Superannuation scheme); 42 (the Integrity Scheme Reconstructed Bank Account Schedule), 43 (the Integrity Summary Schedule), 78 (the Reconciliation of Integrity Investments Schedule), 79 (the Reconciliation of Investor Information Schedule), 80 (the Schedule of Returns), 82 (the Integrity Investor Scehdule), 83 (the Integrity Summary of Commissions schedule), (those relating to the Integrity Plus fund; 85 (the Destiny Reconstructed Bank Accounts Schedule) and 86 (the Destiny Summary Schedule) (those relating to the Destiny scheme). 47At tab 3 of the exhibit there is a DVD that Mr Taylor deposes contains 16 folders, each of which contains a number of PDF files comprising a series of account statements for the accounts set out in paragraph [2] of his affidavit. Mr Clarke informed me that the DVD contains 1,479 documents, some of which exceed 50 pages in length. 48As noted earlier, Mr Taylor was appointed as the liquidator of the Super Save scheme and the Integrity Plus scheme. He deposes to having made previous investigations into the structure and affairs of those schemes, for the purposes of identifying investors in those schemes, how the schemes worked, and who was paid money out of the schemes; and that, in conducting his investigations, he was assisted by employees of HLB Mann Judd (as identified in [7]). While this seems to have been included by way of background, it also establishes that a number of the underlying documents on which the schedules exhibited to Mr Taylor's affidavit are based may well constitute business records of the liquidation. 49Mr Taylor deposes that he has been engaged in a detailed review and analysis of a range of documents in schemes, including the documents contained in paragraphs [17] to [35] and that he has had, during the course of his investigations, discussions with some of the persons who are proposed to be called as witnesses in this proceeding (Mr Truong, Mr Wood and Mr Koutsoukos). Mr Clarke's submission is that those conversations were in the ordinary course of Mr Taylor's business as liquidator of the two schemes (as part of the investigations dealing with those witnesses) but that in any event what Mr Taylor has done has been to summarise in the schedules information contained in a series of underlying documents and that this is sufficient to permit the use of the document as a summary (irrespective of Mr Taylor's position as liquidator of the schemes). (It is further submitted that this is not a summary of a kind that could only be prepared by a liquidator nor is it one that would require the use of an expert.) 50In [12] Mr Taylor identifies the matters addressed in his affidavit, those being the number and identity of investors in the Super Save and Integrity Schemes; the amount invested by and returns paid to each investor in those Schemes; the return of capital, if any, to investors in those Schemes; the destination and amount of certain payments from the accounts related to each of those Schemes and the source and amount of certain payments to the accounts related to each of those Schemes. He further deposes that the underlying work and analysis referred to in his affidavit "formed the basis of the schedules" referred to in the affidavit, those schedules being updated from time to time as part of the continuing liquidation of the Schemes ([13]). 51He deposes at [14] that the underlying work and analysis undertaken to address the matters in [12] has included the tasks of: identifying and reviewing relevant business records of the two Schemes (including the account statements set out in [17], [40] to [44] and [143] of his affidavit; identifying and reviewing "relevant documents" obtained from third parties during the course of the liquidation of the Schemes; and updating schedules previously prepared based on those relevant business records and third party documents. [15] sets out certain assumptions that Mr Taylor says that he has made in relation to the administration of the schemes and the payment of commissions based on the returns paid to the investor. 52At [17] - [35], Mr Taylor identifies in detail the documents and information concerning the Schemes with which he was provided by ASIC, or that he obtained from the persons identified and described by him as the promoters of the Schemes (Messrs Truong, Wood and Koutsoukos), or obtained by other enquiries made by him, including responses by investors in relation to the schemes (the latter being used to reconcile and corroborate promoter records, account statements and other documents referred to in his affidavit). As I read his affidavit, copies of all of the documents to which he refers are contained on the DVD at tab 3. 53At [36], Mr Taylor says that, based on his review of the documents described in [17], he has identified the transactions which occurred in the Super Save Scheme accounts (as set out in the Super Save Scheme accounts schedule) between June 2006 and December 2007. He says at [45] that he and his staff, at his direction and under his supervision, have reviewed: the statements for each of the Super Save Scheme accounts; the Super Save promoter spreadsheets; and the Super Save Scheme Investor Information Forms (all of which ASIC submits comprise the business records of the liquidation and all of which are described by Mr Taylor in the preceding paragraphs as noted above) and, on the basis of that review, has identified that Super Save Scheme investors' investment funds were deposited in particular identified accounts ([36]). 54Mr Taylor's staff under his direction and under his supervision then prepared a schedule titled "Reconstructed Bank Accounts Super Save Superannuation Fund" (a title that of itself may well have given rise to suspicion that the document was more than a summary) of all the transactions in those accounts that are identified in paragraph [46] as being the accounts into which investors' investment funds were deposited. 55At [49] and following, Mr Taylor explains how that schedule was prepared. He says that the transactions recorded in the ASIC spreadsheets and the Super Save Accounts statements were reviewed (the starting point being the ASIC spreadsheets) and that relevant information from the documents identified in [50] was then incorporated into the schedule. 56At [51] - [52] and then from [57]-[64], Mr Taylor explains the contents of the schedule at tab 5, from which he says (at [72]) that he has calculated that investors deposited particular amounts and the returns or distributions paid to investors. 57Mr Taylor also deposes that a Super Save Summary Schedule (at tab 6) was compiled summarising Super Save Reconstructed Bank Accounts Schedule by "Transaction Type" according to a particular coding. In this regard, the exercise carried out, as I understand it, was to extract particular entries in much the same way as the summary tables referred to in Mr Connor's affidavit were prepared. 58As to the schedules at tabs 37, 38 and 39, these were compiled following the review of various documents (as set out in [73] onwards), from which Mr Taylor reached conclusions as to the way in which particular deposits or investments or transactions should be treated. They represent a reconciliation of the Super Save Scheme Accounts statements, promoter spreadsheets and investor information forms as explained in [102] and onwards. The outcome of that reconciliation process was itself summarised in a further schedule (at tab 40), the Super Save Investor Schedule, the contents of which are explained at [130]. Mr Taylor deposes that on the basis of that schedule he has made certain calculations as to the total capital amount invested during the operation of the Super Save Scheme and other matters ([131]). 59The exercise of preparing the schedule summarising commissions in relation to the Super Save scheme is explained in [133] - [136], Mr Taylor also explaining the basis on which a minor variance was treated. He goes on to explain certain calculations based on the schedules at tabs 5 and 6 in [137] and an amount as to which he was not able to draw any conclusion as to how or for what purpose it was transferred (at [138]). 60From [139], he explains how a similar exercise was carried out for the Integrity scheme and from [234] in relation to the Destiny Technocash account. (From [223] - [233], he explains the calculations he has made as to the co-mingling of the Super Save and Integrity Scheme funds.) 61It is clear from Mr Taylor's affidavit that the schedules exhibited to his affidavit have been compiled in part by the collation and re-organisation of information extracted from the underlying documents referred to in his affidavit. However, it also appears that there has been an application of judgment in the manner in which particular parts of the schedules (or at least those other than the principal "reconstructed" bank account schedules) were compiled. 62This highlights one of the bases of complaint made by Mr Southwick as to the proper characterisation of the Taylor schedules as summaries. I deal with this when considering the issues for determination on the present application, to which I now turn. Application of legal principles 63There are three matters to be determined for the purposes of the s 50 application: whether the relevant spreadsheets and tables are summaries of information contained in the underlying documents for the purposes of s 50 (rather than, for example, comprising conclusions or statements of opinion); whether the volume and/or complexity of the underlying documents is such that it would not otherwise be possible conveniently to examine the evidence; and whether a reasonable opportunity has been given to any other party to the litigation to examine or copy the documents in question (and in that regard the fact that there might between now and the trial be a reasonable opportunity to examine or copy the documents is strictly not to the point). 64The second of those matters can be disposed of with little difficulty. There can be no doubt that the volume of the underlying documents of the kind which would otherwise be required to be tendered individually in the quantities in question (5,007 in the case of the information sought to be adduced by way of the Connor spreadsheets and 1,479 in the case of the Taylor schedules, some of which documents are of many pages in length) is sufficient to attract the operation of s 50. The more contentious issues are the first and third.