I gave judgment in these proceedings on 24 July 2015: LCM Litigation Fund Pty Ltd v Coope; Coope v LCM Litigation Fund Pty Ltd (No 2) [2015] NSWSC 992. In these reasons I will use the same abbreviations as I used in that judgment.
In my judgment of 24 July 2015, I found that Mr Coope had engaged in serious misconduct in relation to the Separation Proposal. In the course of making that finding I said:
"182 During cross-examination, Mr Coope agreed that, at the time he put his Separation Proposal, it would have been 'disastrous' for the prospects of LCM's proposed 2015 capital raising for him to leave LCM, join Vannin and set up a business in competition with LCM. But this is just what Mr Coope was proposing to do. And he did not tell his fellow LCM directors.
183 As I have mentioned, cl 4.1(c) of Mr Coope's Employment Contract obliged him to bring to the LCM board's attention 'any significant matters of which you become aware that would be of detriment' to LCM.
184 Mr Coope's potential appointment as managing director of Vannin Malta in the circumstances proposed by Mr Coope to Mr Craddock was, in my opinion, a 'significant' matter which was very likely, as Mr Coope must have been aware, to be of detriment to LCM; indeed, 'disastrous', to use the word with which Mr Coope agreed."
Those observations were based on evidence that Mr Coope gave at transcript 230. The transcript read as follows:
"Q. You knew, could I suggest to you, in February 2012 that the idea of you leaving the company and joining Vannin and setting out a business in competition with LCM would be disastrous, if I could put it that way, for the prospects of any such capital raising?
A. I agree with that."
That question and answer was included in a longer passage from Mr Coope's cross-examination that Mr Douglas QC, who appeared with Ms Fendekian for LCM at the hearing, set out in his closing written submissions. I cannot see a record from the transcript of there being any further reference to that particular question and answer during oral submissions.
No application was made to amend the transcript during the hearing or at any time before I delivered judgment.
On the day judgment was delivered, Mr Coope's solicitors sent an email to Reporting Services Branch (RSB) Client Services requesting a "review of the audio and transcript" in respect of the evidence at transcript 230. The email also asked "whether there are any discrepancies between the audio and the transcript or whether any of the answers are unclear".
RSB Client Services replied seeking direction as to the precise question and answer the subject of the enquiry. In response, Mr Coope's solicitors drew attention to the question and answer I have set out above.
On 31 July 2015, RSB Client Services sent my Associate an email in the following terms:
"Esplins Lawyers are concerned about one line of the transcript below and typed by contractors for Justice Stevenson in June (transcript attached).
We have had this section audio checked by three Client Service Officers and by the contractors - we have confirmed that the line below was unclear on the audio but should read 'I don't agree with that'.
If you are in agreement, we will organise for an errata transcript to be produced for that line of transcript and sent to the parties."
I asked for a copy of the audio file, which was delivered in CD form. I have listened to it. I could not tell from listening to the audio file whether the answer recorded in the transcript was correct or not. I had, of course, assumed its correctness when writing my judgment. Indeed, at that time, it did not strike me as being inconsistent with what Mr Coope said.
I asked my Associate to ask RSB Client Services whether it had more sophisticated equipment than was available to me to listen to the audio file. On 5 August 2015, RSB Client Services sent my Associate the following email:
"We all have a software program to listen to the courtrooms with slow and fast and isolation channels - however the CD format is the one any party receives when requesting the audio."
My Associate circulated the communications from RSB Client Services to the parties and I invited submissions.
Mr Clarke SC, who appeared for Mr Coope, submitted that in the circumstances, and in light of the information obtained from RSB Client Services as to what their officers had heard from the audio file, the transcript should be corrected to reflect what RSB Client Services have informed me was the answer Mr Coope actually gave to the question.
Ms Fendekian, who appeared today for LCM, very properly, in my view, said that LCM's position was that it neither consented nor opposed the transcript being altered, and did not wish to make any submissions about the matter.
Based on the communications that my Associate received from RSB Client Services, I am satisfied that there is an error in the transcript.
The answer given by Mr Coope to Mr Douglas's question was "I don't agree with that", and not "I agree with that". My judgment thus attributes to Mr Coope a statement, against his interests, that he did not make.
Where there is a bone fide and significant dispute about whether a transcript correction should be made, the controversy "must be resolved by the court the proceedings of which were transcribed", rather than, for instance, by an appellate court (Conley v Commonwealth Bank of Australia [2000] NSWCA 101 per Heydon JA at [54]).
Here, the transcript error was revealed only after judgment was delivered, albeit before orders were entered.
It is most unfortunate that the transcription error was made. However, I agree with RSB Client Services that the audio is unclear; partly because of the timbre of Mr Coope's voice, and perhaps also because of the location of the microphone on the day.
It is also unfortunate that the error was not detected by those representing Mr Coope, notwithstanding the fact that the relevant part of the transcript was set out, in terms, in LCM's closing submissions.
However, now that the answer that in fact Mr Coope gave to the relevant question has been revealed, this must be addressed.
A similar circumstance, albeit in the context of a criminal trial, arose in Leyshon v Western Australia [2006] WASCA 132.
In that case, one of the bases upon which the Western Australia Court of Appeal quashed the appellant's conviction was a statement that, according to the transcript, the trial judge made to the jury in the course of his summing up.
According to the transcript, the statement was, "It would have required two hands". The tape recording of the judge's summing up, which only came to light after the Court of Appeal had upheld the appeal and quashed the conviction, revealed that, in fact, the trial judge had asked the jury, evidently rhetorically, "Would it require two hands?".
In those circumstances Martin CJ said at [8] to [10]:
"This transcription error completely alters the sense of his Honour's direction to the jury and acceptance of that transcription error removes any basis whatever for any suggestion that his Honour erred in respect of any matter of fact.
…Accordingly, in my view, it is both necessary and appropriate for this Court, in the interests of justice, to correct the error which was induced by the provision of an erroneous transcription of the direction to the jury.
The most practical way in which this could be achieved is to direct that those reasons only be published in future together with the reasons now given by this Court and prefaced by a statement to the effect that the reasons published on 30 June 2006 are to be read subject to the corrections which we are now making to those reasons."
I propose to adopt a course similar to that adopted by Martin CJ.
I propose to cause an addendum to be made to my judgment of 24 July 2015 drawing attention to these reasons and saying that the judgment should be read as if the whole of [182] and the words, "indeed, 'disastrous', to use the word with which Mr Coope agreed" from [184] were omitted.
Those amendments do not cause me to change the conclusion to which I came in my judgment of 24 July 2015. The answer which, according to the transcript, Mr Coope gave to the question was, to my mind, confirmatory but not determinative of my conclusion that he engaged in serious misconduct. Now that the answer that Mr Coope in fact gave to the question has been revealed, I remain of the opinion expressed in the judgment.
I direct that the transcript be amended at p 230, answer at line 6, from "I agree with that" to "I don't agree with that".
[3]
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Decision last updated: 14 August 2015