Plaintiff v ANDREW ALEXANDER LINDBERG

Supreme Court of Victoria|2009-10-16|Before: ROBSON J

CORPORATIONS - civil penalty proceedings by ASIC - statements of evidence to be led by ASIC - whether or not substance of relevant conversations should be given - whether list of documents to be relied on by ASIC given in a proper form - premature to anticipate whether or not evidence will be admitted or other relief given

The Australian Securities and Investments Commission

1 This is but one of a series of interlocutory applications in proceedings where ASIC claims penalties and other relief against Mr Lindberg, the former managing director of AWB Ltd. The trial is fixed to commence on Monday 19 October 2009.

2 By an interlocutory process dated 5 October 2009, Mr Lindberg sought the following relief:

(1) An order that, save by leave of the trial judge, the plaintiff will not be permitted to lead any oral evidence from a witness the substance of which is not set out in a statement of evidence of the witness which has been served in accordance with orders made in this proceeding.

(2) An order that, save by leave of the trial judge, the plaintiff will not be permitted to call certain former officers of AWB as witnesses at the trial of the proceeding.

(3) An order that the plaintiff file and serve a consolidated list of documents which it proposes to rely on at the trial of the proceeding which complies with a set of criteria set out by Mr Lindberg.

(4) An order that, save by leave of the trial judge, the plaintiff will not be permitted to rely at trial on any documents not included in the consolidated list of documents.

(5) An order that the plaintiff pay the defendant's costs of the application.

3 At the hearing the application, the plaintiff said that it did not intend to call the former officers referred to in (2) and had written to Mr Lindberg saying that.[1] In the circumstances I do not propose to make the order sought.

4 The plaintiff has served on the Mr Lindberg a list of document entitled "plaintiffs second interim list of documents - 25 September 2009". It is about 26 pages long. At the hearing of the application, the plaintiff agreed that it would separate out from the current list of documents those relating to the alleged damage suffered by AWB and incorporate them in a separate list to be served on Mr Lindberg by 14 October 2009. The plaintiff also said that if the document included in the current list does not have a title then there is no need for Mr Lindberg to take very long over those documents.[2] I took that to mean that for all practical purposes they could be ignored.

5 For the reasons that follow, I have decided not to make the order sought in (1), (3) and (4). Accordingly, I will make no order on the application save to reserve costs.

6 On 5 June 2009, I ordered that ASIC serve on Mr Lindberg a list of witnesses ASIC intends to call and a statement of evidence for each witness. I made it clear at the time that the witnesses would be required to give their evidence orally without any reference to the statement and the statements' purpose was to give Mr Lindberg notice of precisely what it was expected the witness would say. Mr Lindberg refers to several statements of evidence he has been served with and submits that in some important respects they do not appear to give the substance of the evidence that he expects they will seek to give.

7 He takes as an example the statement of evidence of Mr Tuohy. ASIC alleges, inter alia, that Mr Lindberg knew that AWB had made and was continuing to make payments of purported inland transportation fees in connection with the wheat trade with the IGB and that these fees were a sham used by the IGB and or the Government of Iraq to obtain funds from the UN Escrow account that they were not entitled to.[3] The particulars relied on include paragraph 12 of the then particulars.[4] It alleges that in or about February 2001, Mr Lindberg received a briefing from Arthur Andersen in relation to the Arthur Andersen report. The particulars allege that the material substance of the briefing was that AWB was paying purported inland transportation fees and that Arthur Andersen were concerned that some (at least) of the purported inland transportation fees were being paid to Iraq. The particulars allege that Andrew Tuohy provided the briefing. The particulars allege that the briefing was partly written and partly oral. Insofar as it was written it is alleged it comprised a PowerPoint presentation entitled "Integrity Risk Review - International Marketing Group"; a copy of which was provided to Mr Lindberg at the briefing and annotated by him. The particulars allege that insofar as the briefing was oral, it comprised of statements by Tuohy to the effect alleged.

8 The statement of Mr Tuohy's evidence says in part as follow:

In relation to the briefing, Mr Tuohy recalls that:

(a) it lasted about an hour;

(b) he supplied each of the attendees at the meeting with a spiral bound hard copy of the power point presentation he had drafted prior to the briefing;

(c) he produced several copies of the December 2000 final report which were handed out at the meeting and other internal audit reports including a supplementary report, issues report and a process map of international trading procedures;

(d) all attendees at the briefing had a copy of the December 2000 final report as well as the other reports;

(e) the contents of the December 2000 final report were discussed, insofar as they related to Iraq and Ronly, at the beginning of the meeting;

(f) he went through the power point presentation and selected from each of the points that were raised, summarised the information that had been found and any conclusions that had been reached in relation to each of the points referred to in the power point presentation;

(g) all the points were covered in equal portions;

(h) Lindberg was listening to the presentation and asked some questions during it;

...

9 Mr Lindberg submits that Mr Tuohy does not say what was said by either Mr Tuohy or Mr Lindberg. He contends that if Mr Lindberg was told the very thing he is alleged to have known, then Mr Tuohy's statement does not state what Mr Tuohy said or Mr Lindberg said on the critical allegation against Mr Lindberg.

10 Prior to Mr Tuohy giving evidence, I can only assume that he does not recall what was said but only that there was a discussion. If Mr Tuohy did seek to go further and seek to give evidence of what he or Mr Lindberg said on the issues alleged, such as that Mr Lindberg knew that AWB had and was continuing to make sham inland transportation fee payments to enable the Government of Iraq from funds from the UN Escrow account, then I would be prepared to hear an objection by Mr Lindberg. It is not appropriate for me to anticipate in advance what I may rule in such a hypothetical situation. On one extreme, I may admit the evidence unconditionally. On the other extreme, I may not admit his evidence into the evidence against Mr Lindberg. Between those extremes there may be a range of other orders that may be made.

11 ASIC is on notice that the point of the statements is to inform Mr Lindberg of the case he has to meet. Naturally I would expect that evidence that goes to the central allegations against him should be properly disclosed to Mr Lindberg in advance of the hearing.

12 Mr Lindberg further complains that statements such as for Sarah Scales appears to have been prepared using previous statements rather than she being interviewed and a statement prepared on the interview for this particular proceeding. Mr Lindberg says he will object to such evidence being led on the ground that a genuine attempt has not been made to provide a statement of her anticipated evidence.

13 Again I believe it is not appropriate to make any decision at this stage on this point. If Mr Lindberg contends that he has not been given proper notice of the substance of the evidence to be led against him, then we can deal with that at the trial

14 Mr Lindberg complains that many documents are duplicated several times and that the list of documents is unduly long and complicated. He seeks that he be given a fresh list that lists only those documents that the plaintiff proposes to rely on at the trial of the proceeding. ASIC contends that the list does that and no more. If Mr Lindberg feels that he is prejudiced in any way during the trial by reason of the way documents have been described or not described, then I can deal with those objections at the time.

15 The separation of documents dealing with damage to AWB from the rest hopefully will make the list more manageable.

16 As to the order sought that ASIC will not be permitted to rely at trial on any documents not included in the list of documents, I consider that I should not foreshadow what should be done at this stage. Any orders that I may make will take into account the obligation on ASIC to have notified Mr Lindberg of the documents it intends to rely on and the need to ensure that Mr Lindberg has a fair hearing and adequate opportunity to meet the allegations against him.

[3] Proposed Second Further Amended Statement of Claim of 2 October 2009, [40].

[4] Since the hearing on 5 October 2009, a second further amended statement of claim of 8 October 2009 has been filed and served.

At a glance

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Judgment (27 paragraphs)

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