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[2003] NSWSC 795
Supreme Court of NSW
2003-08-27
Bergin J, Mr J, Mr P
Original judgment source is linked above.
Reported Decision : 47 ACSR 21 (2003) 12 ANZ Insurance Cases 61-580
CITATION : Mark Silbermann v CGU Insurance Limited; John Huyshe Greaves v CGU Insurance Limited; John David Rich v CGU Insurance Limited [2003] NSWSC 795 HEARING DATE(S) : 27 August 2003 JUDGMENT DATE : 3 September 2003
JURISDICTION: Equity Division Commercial List JUDGMENT OF : Bergin J DECISION : Motions for concurrent hearings dismissed.
CATCHWORDS : Applications pursuant to Part 31 Rule 7 for concurrent hearings - Civil penalty proceedings applying the rules of evidence and procedure for civil matters (s. 1317L) - Other proceedings in which a contravention of s 184 "criminal offence" is alleged with "criminal intent" LEGISLATION CITED : Corporations Act 2001 Corporations Law Barclays Bank v Tom [1923] 1 KB 221 Commonwealth of Australia v Cockatoo Dockyard Pty Limited [2003] NSWCA 192, unreported, Hodgson, Santow and McColl JJA, 14 July 2003 CASES CITED : Eden v Weardale Iron & Coal Company (1887) 35 Ch D 287 Silbermann v CGU Insurance Limited; Rich v CGU Insurance Limited; Greaves v CGU Insurance Limited [2003] NSWCA 203, unreported, Beazley, Hodgson and Tobias JJA, 25 July 2003 Standen v GH Varley Pty Limited (1956) 56 SR NSW 346 Mark Silbermann (Plaintiff in 50141/01/Respondent) John Huyshe Greaves (Plaintiff in 50096/02/Respondent) PARTIES : John David Rich (Plaintiff in 50150/02/Respondent) CGU Insurance Limited (Defendant/Applicant) Australian Investments and Securities Commission (Respondent) FILE NUMBER(S) : SC 50141/01; 50096/02; 50150/02 JB Simpkins SC (Plaintiff in 50096/02/Respondent) COUNSEL : DL Williams (Plaintiffs in 50141/01 and 50150/02/Respondents) CG Gee QC, AW Street SC and E Romaniuk (Defendant/Applicant) RBS MacFarlan QC and P Durack (Respondent) Joanne Kelly (Plaintiffs in 50141/01 and 50150/02) SOLICITORS : Watson Mangioni (Plaintiff in 50096/02) Colin Biggers & Paisley (Defendant) Australian Investments and Securities Commission (Respondent)
50141/01 Mark Silbermann v CGU Insurance Limited 50096/02 John Huyshe Greaves v CGU Insurance Limited 50150/02 John David Rich v CGU Insurance Limited JUDGMENT - Applications for concurrent proceedings with ASIC proceedings 1 The three proceedings in the Commercial List (the Insurance proceedings) the subject of this application are 50141/01, in which Mark Silbermann (Silbermann) is the plaintiff, 50096/02, in which John Huyshe Greaves (Greaves) is the plaintiff and 50150/02, in which John David Rich (Rich) is the plaintiff. CGU Limited is the defendant in each of the proceedings. I shall refer to the plaintiffs collectively as "the directors". 2 The defendant moves on a Motion filed on 12 July 2002, as amended by Motions filed in Court on 25 August 2003 seeking orders that the Insurance proceedings be heard concurrently with proceedings 5934/01, in which the Australian Securities and Investments Commission (ASIC) is the plaintiff and the directors are the defendants (the ASIC proceedings). 3 The Motions were heard together on 25 August 2003 when Mr C Gee QC, Mr AW Street SC and Mr E Romaniuk appeared for the defendant/applicant on the Motion and Mr DL Williams appeared for Rich and Silbermann, Mr J Simpkins SC and Mr M Jones appeared for Greaves and Mr R Macfarlan QC and Mr P Durack appeared for ASIC, also a respondent to the Motion. 4 The defendant's application is brought pursuant to Part 31 Rule 7 which provides: 7. Where several proceedings are pending in the same Division, then, if it appears to the Court- (a) that some common question of law or fact arises in both or all of them; (b) that the rights to relief claimed therein are in respect of, or arise out of, the same transaction or series of transactions; or (c) that for some other reason it is desirable to make an order under this rule, the Court may, on terms, order those proceedings to be consolidated or may order them to be tried at the same time or one immediately after another or may order them to be stayed until after the determination of any of them. 5 The only evidence relied upon by the defendant in support of these Motions was a folder of documents (Ex. A) containing ASIC's Statement of Claim, as amended, in the ASIC proceedings; the Summons and Points of Defence, as amended, in the Insurance proceedings; correspondence between the defendant's solicitors and the solicitors for the directors and a Statement of Facts agreed between ASIC and the defendant for the purposes of these Motions. 6 The Statement of Facts as agreed between ASIC and the defendant for the purposes of these Motions included the following:
The Insurance Proceedings 18 Each of the directors makes claims under the Directors and Officers Liability insurance policy underwritten by the defendant for indemnity for "Defence Costs" incurred in the ASIC proceedings, in attending the investigation conducted by ASIC and in attending the liquidator's examination in the Federal Court. The claims made in the ASIC proceedings against each of the directors are referred to in a summary form in the pleadings. 19 The defendant's Defence contains allegations that can be conveniently divided into two categories. The first category of allegations relates to a claim that the defendant is entitled to avoid the contract and the second category relates to an exclusion provision of the contract which has been referred to in argument as the "clause 3.1 defence". 20 The defendant claims an entitlement to avoid the contract of insurance by reason of alleged fraudulent non-disclosures and/or fraudulent misrepresentation by the directors. The facts pleaded in support of this allegation relate to statements made in a proposal form dated 29 May 1998 and the conduct relating to that proposal form. Many of the claims relate to Silbermann stating, allegedly falsely, that his occupation was "Chartered Accountant". 21 Further matters relied upon as entitling the defendant to avoid the contract are alleged fraudulent non-disclosures and/or fraudulent misrepresentations contained in a proposal form signed on 7 June 2000 and in the 1999 Annual Report. The allegations made by the defendant include allegations that as at 1999, and inconsistently with what was stated in or implied from the contents of the 1999 Annual Report, the OTL Board did not have in place appropriate corporate governance; did not have in place a procedure to receive necessary information to monitor compliance with statutory responsibilities and accounting and financial control procedures; and that financial information was withheld from the OTL Board in relation to management accounts, the true status of trade creditors, the difficulties in debt collection, the OT Group losses, cash collections from debtors, the true earnings, true monthly cash balances, and reconciliations between the Flash Reports and the management accounts. 22 It is also alleged that the 1999 Annual Report misrepresented that there was a positive increase in EBITDA. It is alleged that the proposal form signed on 7 June 2000 contained false answers, that facts had been suppressed or misstated, and that the signature appearing under the signature of the director on the proposal form was not a signature of a director. 23 There are allegations made in relation to the financial position of OTL as at 30 June 1999 including that it was not a profitable company measured by positive increases in EBITDA; that earnings EBITDA had not increased from $10.6 million to $25.2 million; that in the interim period to 31 December 1999 OTL did not have current assets comprising cash in the amount of $415,918,000; and that OTL did not have net assets in the amount of $393,700,000. 24 It is further alleged that the director's remuneration and other terms of employment had not been reviewed annually by the Board having regard to performance against goals set at the start of the year and that remuneration and terms of employment for the joint Chief Executives had not been properly formalized in service agreements. 25 The defendant claims that the directors knew that the representations made in the 1999 Annual Report and the proposal form were false and/or that they were recklessly indifferent to the truth or falsity of them. 26 There are further circumstances relied upon by the defendant to justify avoidance of the contract. Put shortly, these include answers that were given in a proposal signed in 1997 in relation to the financial status of another OTL director, Mr Bradley Keeling, with allegations of concealment of bankruptcies. There are also allegations of concealments in each of the 1997, 1998 and 2000 proposals as to the extent of enquiry that had been made concerning the questions and answers to be given in the proposal. Further claims are made in respect of the roles played by the directors and Mr Keeling and Mr Rodney Adler, another OTL director; remuneration arrangements in respect of Rich and Mr Keeling; and amendments to consultancy agreements in August 1998, April 1999 and August 1999 as forming part of the basis upon which the defendant claims it is entitled to avoid the contracts. 27 There are two aspects to the cl 3.1 defence: the first is a claim that information was withheld from the OTL Board and the second is a claim that false information was provided to the Board. It is in this part of the defence that allegations are made in respect of the period covered in the ASIC proceedings, 1 January 2001 to 17 May 2001. There are claims similar to those found in the ASIC proceedings of withholding of relevant financial information from the OTL Board but the claims made in the Insurance proceedings are not limited to claims that statutory responsibilities in s 180 were contravened. The defendant claims relevantly that the directors have breached, inter alia, s 184 . There is no such claim in the ASIC proceedings. There is also a claim in the Insurance proceedings that OTL continued to trade whilst insolvent during the period from December 2000 up to May 2001. Such a claim is not expressly made in the ASIC proceedings. 28 Section 184 provides:
Good faith, use of position and use of information - criminal offences 184 (1) Good faith - directors and other officers A director or other officer of a corporation commits an offence if they: (a) are reckless; or (b) intentionally dishonest; and fail to exercise their powers and discharge their duties: (c) in good faith in the best interests of the corporation; or (d) for a proper purpose. 184 (2) Use of position - directors, other officers and employees A director, other officer or employee of a corporation commits an offence if they use their position dishonestly: (a) with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation; or (b) recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation. 184 (3) Use of information - directors, other officers and employees A person who obtains information because they are, or have been, a director or other officer or employee of a corporation commits an offence if they use the information dishonestly: (a) with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation; or (b) recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation. 29 The defendant claims that the directors "intended" to prevent the Board as a whole from monitoring compliance; that the acts or omissions of the directors in withholding information was "intentional and thereby dishonest" and that the motive underlying the intention of the directors was to conceal the information from the Board to enable each of the directors to benefit themselves. 30 The defendant claims that in respect of the alleged false information provided to the Board, the directors' acts or omissions in this regard were done or omitted with "criminal intent", dishonestly and with the intention of gaining advantages for themselves. The defendant also claims that the withholding of the information from and/or the provision of the allegedly false information to the OTL Board were acts or omissions "done or omitted with criminal intent by constituting an offence under section 184(1)" and section 184(2) of the Act. 31 The heading to section 184 refers to "criminal offences". Division 2 of Part 9.4 deals with "Offences Generally" including the manner in which "criminal proceedings" may be commenced. "Criminal proceedings" are not defined in this Division but the manner in which proceedings of this nature may be commenced are, it seems, limited to them being brought by ASIC, a Commission delegate or another person authorised in writing by the Minister to institute the proceedings (s 1315). Appellate Proceedings 32 In the ASIC proceedings, Austin J has made orders that the directors put on statements of evidence. Those orders have been the subject of appeal and the Court of Appeal has reserved its judgment. In the Insurance proceedings, McClellan J determined separate questions including: (i) whether the clause 3.1 defence was available to the defendant in the absence of an existing judgment, order or other final adjudication adverse to the directors; and (ii) whether the defendant "itself" was entitled to seek that judgment, order or other final adjudication adverse to the directors in the same proceedings in which the directors sought the indemnity. McClellan J found that the defendant was entitled to rely upon clause 3.1 and was entitled to seek the adverse finding/order/judgment in the same proceedings and the Court of Appeal upheld that decision: Silbermann v CGU Insurance Limited; Rich v CGU Insurance Limited; Greaves v CGU Insurance Limited [2003] NSWCA 203, Beazley, Hodgson & Tobias JJA, unreported, 25 July 2003. I was informed that on 21 August 2003 Rich and Silbermann lodged in the High Court an application for special leave to appeal.
The Motions 33 The defendant submits that there is likely to be substantial saving of court resources and costs as well as avoidance of inconsistent findings of fact and credit which make it desirable that the ASIC proceedings and the Insurance proceedings be heard concurrently. Reliance was placed upon what Hodgson JA said in Commonwealth of Australia v Cockatoo Dockyard Pty Limited [2003] NSWCA 192, unreported, Hodgson, Santow and McColl JJA, 14 July 2003, at par [32] that: "(c)ertainly, it is desirable that proceedings that overlap substantially be heard altogether by one tribunal". Notwithstanding the defendant's reliance upon this statement, some care needs to be taken when considering an application under Part 31 Rule 7 of the Supreme Court Rules because the Rule only refers to "some" common question of fact or law. True it is that if there is substantial overlap a court may be more willing to order concurrency of hearings, however it is not a pre-requisite in the Rule. 34 The defendant also relied upon a series of cases dealing with third party cross-claims: Standon v GH Varley Pty Limited (1956) 56 SR NSW 346 at 347; Eden v Weardale Iron and Coal Company (1887) 35 Ch D 287 and Barclays Bank v Tom [1923] 1 KB 221 at 224, which I have not found to be of assistance in the circumstances of these applications.
35 Prima facie a very large part of the Insurance proceedings relating to the alleged conduct of the directors in 1997, 1998, 1999 and in the earlier part of 2000 will not need to be the subject of detailed evidence in the ASIC proceedings. Although Mr Gee QC submitted that it is probable that in the ASIC proceedings there will be evidence in relation to the directors' conduct at times earlier than the period January 2001 to May 2001, it is at this stage only speculation as to the extent of such evidence and the extent of any overlap with the evidence to be called by the defendant in support of the defence in relation to the avoidance of the contract. 36 The allegations made in support of the defendant's claim that it is entitled to avoid the contract are quite wide ranging and as best I can do on the paucity of evidence on these applications, I am satisfied that it is more probable than not that the evidence in relation to this aspect of the defence will take up a large part of the hearing time. 37 The claims of criminal intent in respect of the conduct in the period covered by the ASIC proceedings create a very different factual situation in the Insurance proceedings from that in the ASIC proceedings. It is understandable that the defendant has referred to the term "criminal intent" because it is the term used in cl 3.1 of the policy. This much is gleaned from par [12] of Hodgson JA's judgment in the appeal from McClellan J. Cl 3.1 provides: This Policy does not provide an indemnity against any claim made against any Director or Officer: … 3.1 Dishonesty & Fraud brought about by, contributed to by or which involves: (1) the dishonest, fraudulent or malicious act or omission or other act or omission committed with criminal intent of such Director or Officer; (2) such Director or Officer having improperly benefited in fact from securities transactions as a result of information that was not available to other sellers and/or purchasers of such securities; or (3) such Director or Officer having gained in fact any personal advantage to which he/she was not legally entitled. However, this exclusion shall only apply to the extent that the subject conduct has been established by a judgment or other final adjudication adverse to the Director or Officer. 38 The burden is therefore cast on the defendant to obtain that adverse judgment or final adjudication that the directors acted with "criminal intent" or omitted to act with the same intent, if such judgment or final adjudication has not been obtained otherwise. Certainly it is not anticipated that such a judgment or other final adjudication adverse to the directors will be made in the ASIC proceedings. However the defendant has gone further than the claim of "criminal intent". It has claimed that the directors' conduct constituted "an offence" under s 184(1) and (2) of the Act, which, as I have already said, are categorized as "criminal offences". It does not appear that the separate questions judgments, either at first instance or on appeal, reviewed this aspect of the defendant's claim or its entitlement to pursue such proceedings. Having regard to s 1315 there may be a real question as to the defendant's capacity firstly to make such a claim and secondly to do so by way of defence. I shall say no more about that aspect of the matter as it was not argued before me. 39 The ASIC proceedings do not involve any claims of "criminal intent". On the assumption that the defendant is entitled to make the claim of conduct "constituting an offence" under s 184 and if the proceedings were heard concurrently, the directors would have to meet, on the one hand, the claims made against them by ASIC of civil misconduct and, on the other, the claims of criminal misconduct and criminal offences made by the defendant. It seems to me that this is a process that is inappropriate in cases where a judge is hearing proceedings for a declaration of contravention of civil penalty provisions and is required to apply the rules of evidence and procedures for civil matters (s 1317L).
40 Mr Macfarlan QC opposed the orders sought by the defendant. Although there is "an overlap" conceded in relation to the issues and some evidence between January 2001 and May 2001, Mr Macfarlan submitted that considerable caution should be exercised in respect of the orders sought by the defendant. One of the matters raised by Mr Macfarlan was ASIC's desire to ensure the integrity of the process between it and the directors in the ASIC proceedings. I am satisfied that an order for concurrent hearings in the circumstances of the different claims of civil and criminal misconduct or offences may well compromise the procedural fairness in the ASIC proceedings. 41 The stage that has been reached in the Insurance proceedings is that the defendant has put on as much evidence as it can from those witnesses willing to provide statements or affidavits or outlines of evidence. There is however, a group of witnesses that Mr Gee QC indicated are not "available" to the defendant at this stage. The evidence of those witnesses is to be relied upon by the defendant in its case in the clause 3.1 defence in which it pleads criminal intent. I have indicated that notwithstanding the difficulties of obtaining a signed statement from those prospective witnesses, I would require the defendant to provide the directors with an outline of evidence expected to be given prior to consideration of whether the directors should be required to put on witness statements in relation to the "criminal intent"/ s 184 offence part of the proceedings. 42 The directors have indicated that should the application for special leave to appeal to the High Court be unsuccessful, they would not be seeking to have the Insurance proceedings heard before the ASIC proceedings. Of course if the application is successful and the appeal is successful to exclude the cl 3.1 defence there would appear to be no overlap between the two sets of proceedings. There were submissions made that in the absence of the knowledge of the outcome of the appellate process the hearing of these Motions was premature, however on the defendant's application to proceed, I regarded it appropriate to finalise this Motion at this stage. 43 It may be helpful to know whether the cl 3.1 defence survives the High Court special leave applications, however the Court must proceed upon the basis that the present judgments are correct. There may also be the question, that has not been addressed, of whether there is available to the defendant as a defence in the Insurance proceedings the claim that the defendants' conduct constituted an "offence" under s 184. At this stage, for the purposes of deciding these applications, I have assumed that such a defence is available 44 On the evidence before me, I am not satisfied that I should exercise my discretion in the defendant's favour. Although it appears there are some common questions of fact and law in both proceedings and there are some transactions common to both proceedings which may give rise to respective rights to relief, the plethora of other issues and facts which are not common and the very different criminal misconduct/s184 offence claims made in the Insurance proceedings satisfy me that at this stage it is not desirable to make an order for concurrent hearings. 45 The defendant's Motions are dismissed. If the parties are unable to agree on a costs order, I will hear submissions in respect of costs on 5 September 2003 when the matters are listed for directions.
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