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

Judgment 1HER HONOUR: Pursuant to a Notice of Motion filed by ASIC on 2 April 2012, I have made various orders in relation to the conduct of these proceedings (on 11 and 17 April 2012 and 16 May 2012, respectively). When those applications were in part heard on 11 and 17 April 2012, the first, eighth and fifteenth defendants (collectively, the Hobbs interests) were represented by Counsel (Mr M Southwick) who was instructed by a firm of solicitors (Prime Lawyers). By 16 May 2012, the legal representatives on the record for and retained to act for the Hobbs interests had ceased to act for those parties and on 16 May 2012 I acceded to an application for Prime Lawyers to withdraw as solicitors on the record in these proceedings. The Hobbs interests are now unrepresented in the proceedings. 2As at 16 May 2012, an application to vacate the hearing date (fixed to commence on 20 June 2012 for 8 weeks) had been foreshadowed on behalf of the Hobbs interests and an unfiled application for such relief had been forwarded by facsimile transmission to my chambers. I made directions on 16 May 2012 with a view to any such application being properly filed in the Court registry (although there is still some doubt as to whether it has been filed in accordance with the relevant rules) and returnable before me for hearing (together with various other applications that had been similarly foreshadowed) on 28 May 2012. 3When the matter came back before me on 28 May 2012, there was no appearance as such for the Hobbs interests, although Mr Collard (the third defendant, who has filed a submitting appearance in these proceedings) attended in person and handed up on behalf of Mr Hobbs copies of various documents as well as a typed note that he informed me had been forwarded to him by Mr Hobbs in effect as his script for the occasion. That document has no evidentiary status and I read it as a submission on behalf of Mr Hobbs (or the Hobbs interests in general). 4Notwithstanding the doubt as to whether any of the Hobbs' interests Notices of Motion forwarded by facsimile transmission both before and after 16 May 2012 (copies of which were handed up in Court by Mr Collard) had formally been filed, I proceeded to treat them as having been filed (though I note that there has been no waiver of the filing fees payable in connection therewith, for which the Hobbs interests would remain liable in the ordinary course) and to deal with the applications therein made. I did so because it seemed apparent from the affidavit material that had been forwarded by Mr Hobbs that Mr Hobbs (and his wife in relation to a separate Notice of Motion forwarded in similar fashion by her) was seeking to be excused from attendance on the hearing of his applications but not asking that the hearing of the applications be deferred. I had made it clear on 16 May 2012 (at which time the solicitor then with the conduct of the proceedings on behalf of the Hobbs interests was in Court) that any such applications would be dealt with on that day and, given that the application was to vacate the hearing fixed to commence on 20 June 2012, I considered it incumbent on me to proceed with the hearing of the application (together with the various other applications that had been made in relation to interlocutory matters) without delay, albeit in Mr and Mrs Hobbs' absence. (I note that I had received no notice of any application for the Notices of Motion to be heard via a telephone attendance by Mr Hobbs or by way of video-link.) 5Accordingly, I proceeded to read the evidence before me and the submissions made both by ASIC and by or on behalf of the Hobbs interests (in the material that had been sent through to the Court in advance of the application and in the note handed up by Mr Collard) and ruled on the various applications. I concluded that the application to vacate the hearing date should be rejected but that the commencement of the hearing should be deferred until 4 July 2012. I gave only brief oral reasons and indicated that I would publish more complete reasons on that application (and the remaining matters raised in the Notices of Motion that had been forwarded by the Hobbs interests). What follow are those reasons. 6(I also considered and made orders declining to set aside three subpoenas that had been issued to New Zealand witnesses, Ms Brenda Hobbs, Ms Suzanne Watson and Mr Grant Clements, respectively. I gave brief oral reasons at the time for so doing, which will be published separately in due course as will my reasons for dismissing an application by Mrs Hobbs for the proceedings against her and against Geneva Financial Ltd to be struck out for want of jurisdiction.) 7Accordingly, these reasons deal only with the applications made by Mr Hobbs on his own behalf and on behalf of the Hobbs interests to vacate the hearing date and for other relief; and the similar application by Mrs Hobbs for a vacation of the hearing date. Notices of Motion 8As there was a plethora of material (some of it overlapping) forwarded by or on behalf of the Hobbs interests by facsimile transmission in the period from 17 April 2012, I list below the respective Notices of Motion with which these reasons now deal, together with the affidavits signed in support of one or other of the applications contained therein: (i) Mr Hobbs' Notice of Motion dated 3 May 2012, seeking the following orders: