[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
JUDGMENT
HIS HONOUR: This judgment is a necessary consequence of recent case management directions that I have made by consent in chambers about a matter which is listed before this Court on 24 November 2017.
On 18 October 2017 the matter came before me sitting alone for a case management conference. On that occasion, I made the following orders:
"Respondent's written submissions
(1) Amend order 3 of the orders made on 11 September 2017 to provide that the respondent file and serve its written submissions by 4pm on 23 October 2017;
Blue books
(2) Vacate order 2 of the orders made on 11 September 2017;
(3) Direct that the appellants provide a draft index of the blue books to respondents by 4pm on 20 October 2017, with an electronic copy to be provided to my Associate;
(4) Direct that the respondent provide a complete index of all documents proposed to be included in the blue books to the appellants by 4pm on 27 October 2017, with an electronic copy to be provided to my Associate;
(5) Direct that the appellants provide any response to the draft index to the blue books to the respondent by 4pm on 1 November 2017, with an electronic copy to be provided to my Associate;
(6) List the matter for directions at 9.30am on 3 November 2017 to resolve any dispute between the parties about the content of the blue books;
(7) Direct the respondent file and serve the blue books in accordance with the index as settled by the Court by 4pm on 10 November 2017;
Orange book
(8) Amend order 4 of the orders made on 11 September 2017 to provide that the appellants are to file and serve any submissions in reply by 4pm on 3 November 2017;
(9) Direct that the respondent is to file and serve the orange book on behalf of the parties by 4pm on 10 November 2017;
Compliance with Court orders
(10) If any party becomes aware of a failure to comply with the orders of the Court, grant liberty to apply on 48 hours' notice to the Chambers of Payne JA."
The clear intent of the orders I made on the last occasion was to ready this matter for hearing on Friday 24 November 2017. As the appellants had not complied with earlier directions and their solicitor, Mr Foley, indicated that it was unlikely that he would be briefed to appear at the appeal hearing, the orders made proposed that the respondent carry out the work of preparing the necessary books for the hearing of the appeal with the intention that they would be able to seek a special costs order for having done so from the Court hearing the appeal.
In the interests of transparency it is desirable that I set out the history of communications with my chambers by the parties since the last hearing date.
On 27 October 2017, the respondent provided a complete index of the document proposed to be included in the Blue Book, in accordance with order 4.
The appellants did not comply with order 5 made on 18 October 2017.
On 1 November 2017, an e-mail was sent to my Chambers at 6:04 pm from the first appellant, Mr Skinner, in the following terms:
"Dear Madam Associate,
I have been informed that the Courts are closed due to a water leak and closed indefinitely.
I have a daughter undergoing a urgent major breast cancer operation on Friday and in NZ and there is considerable pressure upon me to be in NZ as her mother cannot get there until Sunday and her husband will not be returning to Auckland until Saturday from the UK.
The Second Appellant, Mr Patrick Stone resides in country Victoria and due to the information of the Courts being closed indefinitely doubt if he has been informed of whenever his attendance is required.
If an alternative date can be found it would be greatly appreciated. On Monday 7 November I have my 6 monthly stress and echo medical tests at St Vincents, which is my only other firm date."
On 2 November 2017 at 10:06 am my chambers replied, in the following terms:
"Dear parties
The Court has received the following email from the first appellant, Mr Skinner.
It is not correct that the Supreme Court of NSW is "closed". The Court is sitting as usual at venues in Sydney outside the Law Courts Building. Subject to what appears below, this matter is listed for 9.30am tomorrow morning, 3 November 2017 and subject to the contents of this email will proceed at that time.
A draft index of the complete Blue Book(s) was filed by the respondents in accordance with the orders of the Court. The appellants were ordered to respond as follows:
5. Direct that the appellants provide any response to the draft index to the blue books to the respondent by 4pm on 1 November 2017, with an electronic copy to be provided to my Associate.
No response was filed by the appellant in response to the draft index.
The only purpose of the listing of the matter on Friday, 3 November 2017 was to adjudicate on any dispute between the parties about the contents of the Blue Book(s). The order made was:
6. List the matter for directions at 9.30am on 3 November 2017 to resolve any dispute between the parties about the content of the blue books.
The Court has already made orders for the filing and serving of the Blue Books
7. Direct the respondent file and serve the blue books in accordance with the index as settled by the Court by 4pm on 10 November 2017.
Given the failure of the appellants to respond to the draft index drafted by the respondent the content of the Blue Book(s) should be in accordance with the index filed by the respondent on 27 October 2017. Accordingly, there being no issue for the Court to determine, unless any party objects in writing by return email by 12pm today the Court will vacate the listing of this matter at 9.30am tomorrow, 3 November 2017.
In addition, the submissions filed by the respondent make clear that the Red Book filed by the appellant contains material which should not have been included and does not contain material which should have been included.
The Court proposes that the respondent be directed to file and serve a replacement Red Book by 4pm on 10 November 2017. If any party objects to the making of this direction please respond to this email by 4pm today.
The matter remains listed for hearing of the appeal on Friday 24 November 2017. The appellants must appoint a solicitor or barrister to appear for them on that occasion, or failing that appear in person.
The parties are reminded of the following extant orders:
Orange book
8. Amend order 4 of the orders made on 11 September 2017 to provide that the appellants are to file and serve any submissions in reply by 4pm on 3 November 2017.
9. Direct that the respondent is to file and serve the orange book on behalf of the parties by 4pm on 10 November 2017.
Compliance with Court orders
10. If any party becomes aware of a failure to comply with the orders of the Court, grant liberty to apply on 48 hours' notice to the Chambers of Payne JA."
On 2 November 2017, at 10:26 am the first appellant sent an e-mail to my chambers in the following terms:
"Dear Ms Haddad,
I received an email from an official of the Court on Tuesday saying the court was water flooded and closed indefinitely. In the meantime I received the information about my daughter's emergency operation tomorrow.
A Draft Blue Book Index has been complied by the Appellants and I am waiting for its review by Mr Foley prior to sending it to Law In Order for formatting for presentation to the Court as I don't have the formatting software. The Draft Index from the Respondents has also been assessed.
My apologies for assuming the Court was closed due to the water damage however that was the information I received. I am awaiting advice for Mr Foley presently.
Yours sincerely
Mark Skinner"
On 2 November 2017, at 10:55 am an e-mail was sent to the parties from my chambers as follows:
"Dear parties
The below email has been received from Mr Skinner. To be clear, the orders of the Court made on the last occasion were designed to ensure that there was one only set of Blue Books and that the matter would be prepared for an efficient hearing on 24 November 2017. This was made clear to Mr Foley who appeared for the appellants on the last occasion.
The draft index prepared by the respondent and served on 27 October 2017 in accordance with the orders of the Court was sent to the appellants and any response by the appellants was due to be filed and served by yesterday, 1 November 2017. No response was filed. Accordingly, the directions of the Court made on the last occasion have the effect that the respondent is obliged to file and serve the Blue Book(s) in accordance with its index.
If there is any debate between the parties about the contents of the Blue Book(s) the Court has fixed a hearing at 9.30am tomorrow morning to determine that dispute. If either of the appellants intend to dispute the contents of the Blue Book(s) in accordance with the draft index filed and served by the respondent on 27 October 2017 the occasion for hearing that dispute is 9.30am tomorrow morning, 3 November 2017. As indicated earlier, a Court room will be available to hear that dispute.
Subject to any contrary order made after hearing argument tomorrow, as earlier indicated, the respondent is required by the orders of the Court to prepare Blue Book(s) in accordance with its draft index filed and served on 27 October 2017.
If either of the appellants seeks to submit that a different index should be approved as comprising the Blue Book(s) they must appoint a solicitor or barrister to appear on their behalf tomorrow morning at 9.30am or, failing that, appear in person to make those submissions.
On the basis of Mr Skinner's most recent email the Court assumes that he wishes to make submissions that a different index of the Blue Books to that filed and served by the respondent on 27 October 2017 should be approved. On the basis, unless by 12pm today Mr Skinner indicates by email that he does not wish to make submissions about the contents of the Blue Books the matter will be heard tomorrow at 9.30am. Please check the Court list to see which Court has been made available.
Finally, all correspondence with the Court must be copied to all parties. The practice of emailing the Court directly without copying all of the other parties must cease immediately."
On 2 November 2017, at 11:15am the first appellant sent the following e-mail to my chambers:
"Dear Parties,
Please find the Blue Book Draft List and items that the Appellant have for the Blue Book. It is the opinion of the Appellants that the Respondent's draft Blue Book index does not require those listed below 1 to 8. which have little bearing on the Appeal however if the Respondents seek these to be included then the Appellants do not object to their inclusion.
I apologise for the delay and my mistaken knowledge of the state of the Court building.
1) the 19 August 2014 Affidavit of Steve Dubedat (handwriting expert). Black did not refer to it and it played no part in the hearing Plus P1 Report of Mr Dubedat
2) The Affidavit 5 August 2015 of Dion Manca which Black says "did not have apparent relevance.."
3) The 31 March 2016 Affidavit of Trevor Knipe. Black says "substantial parts were not in admissible"
4) Affidavit 7 April 2016 of Nick Collins - not read and unnecessary
5) D1 Exhibit top Affidavit of Nick Collins 17 Feb 2016
6) D2 Formerly MFI 1 Deed of Arrangement
7) D3 Exhibit Affidavit of Patrick Stone 17 Feb 2016
8) D4 Exhibit Affidavit of Mark Skinner 17 Feb 2016
The Items below are included in the Respondent draft Index however the Appellants doubt that the affidavit of N Collins needs to be included in Blue Book.
1) Affidavit of N Collins 7 April 2016
2) Affidavit of Mark Skinner 7 April 2016
3) Affidavit of Patrick Stone 7 April 2016
4) Affidavit of Mark Skinner 8 April 2016 (not read and in CF)
The Appellants seek to have the three documents listed below added to the Blue Book index
1) Amended Statement of Claim 21 December 2012
2) Further Amended Defence to Amended Statement of Claim 27 Jan 2016
3) Fifth Defendant's Second Further Amended Defence to Amended Statement of Claim - January 2016
Further ADDITIONS TO THE INDEX from Appellants
1) GCA May 2010 Financials Accounts, June 2010 CB
2) GCA Minute Shareolder Loans 24 Sept 2010 CB1 Page 388
3) Loan Agreements Fulhan Hall and H Ridge Investments October 2010 CB1 Pages 178 to 183
4) C Roulstone Exhibit page 2 re Global Connect Services (GCS) 7 Dec 2010
5) Email - Patrick Stone to C Roulstone 16 Dec 2010 CB3 Page 1048
6) Email - Patrick Stone to C Roulstone 20 Dec 2010 CB3 Page 1049
7) Email - Patrick Stone to C Roulstone 21 Dec 2010 CB3 Page 1050
8) Email - C Roulstone to Patrick Stone 11.46 pm 22 Dec 2010 CB3 1051
9) Email - Patrick Stone to C ROulstone 23 Dec 2010 CB3 1052
10) GCS Board Minute 23 Dec 2010 CB3 Page 1422
11) GCA Board Minute 23 Dec 2010 CB3 Page 1423
12) GCS Minute (Faxed) 23 Dec 2010 CB3 Page 1425
13) Faxed Email Cover Sheet 23 Dec 2010 CB3 Page 1426
14) GCA Minute (Faxed) 23 Dec 2010 CB3 Page 1427
15) GCA Monthly Board Papers 17 March 2011 CB4 Page
16) GCA Board Resolution Minute 3 May 2011 CB3 Page 1202
17) ANZ Bank Statement 6 May 2011 CB4 Page 138 to 140
18) GCS Board Resolution Minute Confirmation 23 June 201 CB4 Page 285
19) Second Loan Agreements - Fulham Hall, H Ridge, Kallawar 1 July 2011 CB2 579 to 584
20) GCA Board Minute 14 July 2011 CB3 Page 1203
21) Share Allotment Register GCS 14 July CB3 1206
22) GCA Board Minutes 28 July 2011 CB3 Page 1206
23) GCA Board Business Outline report 25 Aug 2011 CB3 Page 1323 to 1324
24) ANZ Bank Statements June, July, August 2011 CB4 Pages 285 to 288
25) Briefing Paper Patrick Stone to BNPN Board and Others 13 Sept 2011 CB3 Pages 1071 to 1076
26) BSI Capital Proposal to BNPN Board 22 September 2011 CB3 Pages 1209 to 1229
27) Email - Patrick Stone to BNPN Board and Others (Agenda) CB3 1077 and 1078
28) BNPN Board Minutes 23 September 2011 CB3 Page 1326
29) GCA Board Minutes 23 September 2011 CB3 Page 1352
30) BSI Confirmation Appointment 5 Oct 2011 CB4 Page 146
31) BNPB Board Minute 25 Oct 2011 CB3 Page 1328
32) Email - David Cox to BNPN Board 27 Oct 2011 CB4 Page 189 to 190
33) Email - BSI preliminary Valuation to BNPN Board 31 Oct 2011 CB4 Page 151
34) Email - BSI to Patrick Stone and Nick Collins 4 Nov 2011 CB4 Pages 153 and 154
35) Email - David Cox to Geoffrey Redmond 11 Nov 2011 CB4 Page 191
36) GCA Board Minute 16 Nov 2011 CB3 Page 1277
37) Shareholder Loan Reconciled by outside accountants 30 Nov 2011, CB2 Pages 842 and 743
38) Email - H Lellouche (News America Marketing) to Mark Skinner 1 Dec 2011 CB4 Pages 181 and 182
39) GCA Board Minute 15 Dec 2011 CB3 Page 1228
40) Email - D Manca to Stone and others 3.18 pm 16 Dec 2011 CB2 Pages 704 and 705
41) Email - D Manca with attachments 19 Dec 2011 CB2 Pages 731 to 734
42) Email - D Manca to Stone and others 21 Dec 2011 CB2 Page 739
43) G Redmond Financial Engineering Proposal (Handwritten) 21 Dec 2011 CB3 page 1338
44) Telstra Investment Agreement and Attachment Valuations (Dec 2011 to 15 March 2012) 21 Dec 2011 CB4 Pages 201 to 216
45) Telstra Due Diligence Document BNPN and GCA December 2011 CB 4 Pages 217 to 239
46) Email - D Manca to Stone and others with attachment 23 Dec 2011 CB2 Pages 744 and 746
47) GCA ASIC Company Statement 27 Aug 2012 CB4 Pages 71 to 74.
COURT FILE ADDITIONS from Appellants
1) Affidavit Helen Rutland 24 October 2015 (Court File 3)
2) Black J Transcript and Orders of 30 Oct 2015 (Court File 3)
ADDITIONAL EVIDENCE from Appellants
1) ASIC File of H Ridge Investments Pty Ltd
2) Ridge Family Trust Deed of Trust
3) ASIC Statement Change of Company Details 9 Nov 2015
Law In Order can prepare in the necessary format.
Mark Skinner"
On 2 November 2017 at 11:38 am, the following e-mail was sent to the parties by my chambers:
"Dear parties,
I refer to the email from Mr Skinner at 11:15 am. Can the respondent please indicate whether it presses the inclusion of the documents to which objection was taken by the appellants and whether it objects to including documents suggested by the appellants. Pending the receipt of that confirmation, the matter remains listed for 9:30 am tomorrow morning.
In relation to the amended statement of claim, the further amended defence to the amended statement of claim and the fifth defendant's second further amended defence to the amended statement of claim which are referred to in Mr Skinner's email, it is obviously inappropriate that such documents be contained in the Blue Book(s).
Can the respondent please indicate whether it objects to including these documents in the proposed replacement Red Book referred to in the Court's earlier email.
Yours faithfully"
On 2 November 2017 at 2:25 pm the first appellant sent the following e-mail to my chambers:
"Dear All,
With reference to the Respondent's Draft Blue Book File, Patrick Stone (Second Appellant) and myself (First Appellant) are in agreement with it except for the following two items.
(1) we require the inclusion of the Affidavit of Helen Elizabeth Skinner of 24 October 2015 which was lodged with Ms M Smith (Justice Black's Associate) on 27 October 2015 together with the Board Minute of H Ridge Investments Pty Ltd.
(2) The Transcript pages 1 to 4 of Justice Black, Friday 30 October 2015. The Judgement re Application by the Fifth Defendant to Represent the Third Defendant is a separate Transcript which I did not get a copy of from the Court File but which I would also seek to have included in an additional Black Book. That judgement by implication refers to the matter contained in Helen Elizabeth Skinners' Affidavit.
These two matters are relevant to Ground 15 of the Appeal where Black, J. found that I had an interest in or control over H. Ridge Investments Pty Ltd or that I was a beneficiary of the Ridge Family Trust.
The Appellants also agree to re issue the Red Book to include the up dated three documents. We have been advised that these may not be the latest documents handed up during the hearing and filed in Court. We request that the Respondent informs the Appellants of which additional pleading that they seek for inclusion in the updated Red Book. Could we also request that the Respondents provide us with copies of those later documents for inclusion.
Mark Skinner"
On 2 November 2017 at 2:55 pm, the following e-mail was sent to the parties by my chambers:
"Dear parties
Neither party has indicated that an agreement has been reached or that tomorrow morning's hearing is to be vacated. The matter is listed at 9:30 am in Court 13A of the Land and Environment Court which is on Macquarie Street, Sydney.
If agreement is reached and the parties seek to have the listing vacated would they please inform the Court as soon as possible.
Yours faithfully"
On 2 November 2017 at 2:58 pm the first appellant sent the following e-mail to my chambers:
"My understanding is that an agreement has been reached."
On 2 November 2017 at 3:05 pm the first appellant sent the following e-mail to my chambers:
"My apologies. Agreement has not been reached. The Appellants are awaiting for agreement on the inclusion of the Affidavit of Helen Elizabeth Skinner (27 Oct 2015) and the Justice Black transcript pages 1 to 4 on 30 October 2015.
Mark Skinner"
On 2 November 2017 at 4:44 pm the respondent sent the following e-mail to my chambers:
"Dear Mr Foley, Associate,
Red Book
We note your clients included superseded pleadings in the Red Book and confirm in the e-mail received today by Mr Skinner at 2:26PM that the Appellants have agreed to reissue the Red Book. To assist:
The pleadings subject to the appeal are attached:
Amended Statement of Claim filed in Court on the 2nd day of the hearing 7 April 2016 (Black 79M); and
Amended Defence to Amended Statement of Claim also filed in Court 7 April 2016 (Black 80G).
As to the Second Further Amended Defence to the Amended Statement of Claim upon which the Fifth Defendant / First Appellant was granted leave to file on 10 November 2016 (following leave being granted to the Fifth Defendant to reopen his case) is already included in the Red Book (Red 67 - 78, although note that this is incorrectly indexed in the Red Book index as 'Second Further Amended Defence to Amended Statement of Cross Claim').
We also note that the Amended Statement of Cross-Claim was abandoned by the First and Second Cross-Claimants / Second and First Appellant is currently included in the Red Book (Red 37 - 66) but that it is not necessary to be included in the Red Book.
This email is also being sent to his Honour's Associate to respectfully request that in light of the Appellant's offer to reissue the Red Book that the Court redirect the appellant to file and serve a replacement Red Book by 4pm on 10 November 2017.
Yours sincerely, Adam"
On 2 November 2017, at 5:04 pm the follow e-email was sent to the parties by my chambers:
"Dear parties
Can the appellants and respondent please confirm whether it is common ground that:
1. The Court should direct the appellants to file and serve a replacement Red Book by 4pm on 10 November 2017; and
2. The Court should direct the respondent to file and serve the Blue Book(s) by 4pm 10 November 2017 based on the index filed by the respondent on 27 October 2017. If the parties are agreed that there are to be any additions to that draft index can they be specifically identified so that the orders of the Court are clear.
In the absence of confirmation from the appellants and the respondent that these matters have been agreed the directions hearing listed for 9.30am tomorrow morning in Court 13A of the Land and Environment Court will proceed as earlier advised.
Yours faithfully"
On 2 November 2017 at 5:06 pm the respondent sent the following e-mail to my chambers:
"Dear Associate,
We have spoken with Mr Foley a number of times this afternoon and confirm we have now agreed to the attached draft blue book index.
However the Respondent notes that it does not necessarily have the Defendants ' / Appellants' Exhibits from the Court below, nor does it necessarily have documents listed under the new heading inserted at the request of the Appellants in the index 'Additional evidence' or admit that such additional evidence necessarily exists. Mr Foley has acknowledged that the Appellants may be required to assist us with providing this material whilst being mindful of the need to provide this quickly considering the time required for printing and the order as to when the Blue Books must be filed and served.
If the Respondent does not have the material and the Appellants have it but do not provide it, or do not have it at all, it will be necessary for the Respondent to order the printing of the Blue Books without it.
On behalf of both parties we respectfully request tomorrow's listing to be vacated. Our apologies to his Honour and to the Court for not being in a position to inform the Court any earlier as we have only now reached agreement.
Yours respectfully,
Yours sincerely, Adam"
On 2 November 2017 at 5:19 pm the respondent sent the following e-mail:
"Dear Associate,
For the Respondent, confirmed - subject to the Blue Book index being the amended agreed index attached sent in our email today 5:07PM (apologies, that email was sent before receipt of the email below).
Yours sincerely, Adam"
On 2 November 2017 at 5:23 pm, Mr Foley, solicitor for the appellants, sent the follow e-mail to my chambers:
"Dear Associate,
We write to confirm Mr Bowe's email to you that we have just received.
The Appellants join with the Respondent to request that tomorrow mornings hearing be vacated.
Should you have any queries in relation to any of the above, or otherwise, please do not hesitate to contact the writer on his mobile 0412 922 311.
Please acknowledge receipt of this email at your earliest convenience.
Michael Foley | Principal | Foleys"
On 2 November 2017 at 6:51 pm the following e-mail was sent to the parties from my chambers:
"Dear parties
Thank you for your respective emails. The Court will vacate the hearing tomorrow morning at 9.30am and thus no appearance is required.
The Court notes the information about the content of the Blue Book(s). If any difficulty emerges in complying with the Court's orders to file the Blue Book(s) the Court expects to be notified of that as soon as possible.
In relation to the amended Red Book the Court makes the following direction:
The appellants are to file and serve an amended Red Book by 4pm on 10 November 2017.
Again, if there is any difficulty in complying with this order the Court expects to be notified as soon as possible.
The Court will publish a short judgment tomorrow containing the substance of the email communication which has passed between the parties today for the assistance of the Court which is to hear the matter on 24 November 2017.
Yours Faithfully"
[3]
Orders
Accordingly, the 3 November 2017 hearing was vacated on the joint application of the parties. The Court makes the following orders:
1. By consent, the Court orders that the appellants are to file and serve an amended Red Book by 4pm on 10 November 2017.
2. If there is any difficulty in complying with this order the Court expects to be notified as soon as possible.
In relation to the Blue Book(s), the Court notes the agreement of the parties as to the content of the index. To be clear, the Blue Book(s) must be filed and served by 10 November 2017. If the respondent does not have the material recently included by the appellants in the index and the appellants do not provide that material in a timely way, it will be necessary for the respondent to attend to the printing of the Blue Book(s) without including that material.
If that becomes necessary, the Court expects to be notified of that as soon as possible.
[4]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 03 November 2017