Plaintiff v Defendants

1 Lengthy reasons for judgment in this proceeding (Primary Reasons) were scheduled to be handed down on 17 July 2024 (Judgment Delivery Date). By his summons filed 17 July 2024 (July Summons) the plaintiff seeks an order staying or adjourning the delivery of the Primary Reasons (Stay Application) until three business days after the determination of the plaintiff's applications made by summons filed on 28 May 2024 (May Summons). The defendants oppose the Stay Application and contend that the Court should proceed to hand down the Primary Reasons.

2 For the reasons that follow I have concluded that the Stay Application should be dismissed and the Primary Reasons should be handed down.

3 The plaintiff relied upon the affidavits of his solicitor, Janet Whiting, sworn on 17 May 2024 (May Whiting Affidavit), 16 July 2024 (16 July Whiting Affidavit), and paragraphs 38 to 56 of Ms Whiting's affidavit sworn on 19 July 2024 (19 July Whiting Affidavit). The plaintiff also relied upon written submissions dated 16 and 19 July 2024, which were supplemented by oral submissions of the plaintiff's senior counsel during the hearing.

4 The defendants did not file any affidavit material and relied upon their written submissions filed 22 July 2024, which were supplemented by oral submissions made by the defendants' senior counsel at the hearing.

5 The eight-day trial in this proceeding concluded in mid-December 2023 and judgment was reserved. By the May Summons the plaintiff seeks leave to uplift and inspect forthwith specified documents (Documents) over which the defendants claim legal professional privilege (Documents Application), an order varying an interlocutory costs order previously made against him, and some related relief (collectively, Applications). The genesis of the Applications is said to be the defendants' change of position during closing submissions on the last day of trial regarding the time at which the resolution referred to in paragraph 16(2) below was passed by the first defendant's (National Tiles) board. This is further referred to and addressed later in these reasons.

6 When the preparation of the Primary Reasons was well advanced, on 17 May 2024, the prospect of the Applications being made was first raised with the Court when the Court was provided with a draft summons and the May Whiting Affidavit.[1] The proceeding was urgently listed for mention on 24 May 2024 (May Mention) and at that hearing an issue arose between the parties as to whether or not it was necessary for the plaintiff to seek and obtain leave to reopen his case in order to have the Applications heard and determined. The defendants contended that such leave was required, which the plaintiff disputed.

7 Given that I was the trial judge and the Documents Application relates to documents over which a claim of legal professional privilege is made, it was common ground that I should not hear the Applications. However, the parties each considered that I should determine the narrow question of whether or not leave to reopen the plaintiff's case was required to be obtained before the Applications can be heard and determined (Reopening Issue).

8 I heard and determined the Reopening Issue on 11 July 2024. Reasons were delivered ex tempore, and written reasons were published the following day (Reopening Reasons).[2] I concluded that the plaintiff did not need to obtain leave to reopen his case in order to have the Applications heard and determined, and a declaration was made to that effect. Directions were also made to facilitate the hearing of the Applications on 6 August 2024 by another judge of this Court.

9 Prior to the filing of the July Summons there had been no application by any party for a stay or deferral of the delivery of reasons or judgment. At the commencement of the hearing on 11 July 2024 the parties were informed that I anticipated being in a position to hand down the Primary Reasons on 16 or 17 July 2024. The defendants submitted that, in the absence of a stay application, the Court should proceed to deliver its reasons. The parties were subsequently informed by the Court that, absent any stay application, the Primary Reasons would be handed down at 10:30am on the Judgment Delivery Date.

10 The orders made by the Court after determining the Reopening Issue included a direction that, by 4pm on 15 July 2024, the plaintiff inform the Court and the defendants whether he wished to apply for a stay of the delivery of reasons pending the hearing and determination of the Applications. On 15 July 2024 the plaintiff's solicitors informed the Court and the defendants that the plaintiff proposed to apply for such a stay.

11 Given the plaintiff's proposed stay application, the Primary Reasons were not handed down and delivered on 17 July 2024. Rather, at that hearing a short interim stay of the delivery of the Primary Reasons was sought by the plaintiff, which was responsibly not opposed by the defendants. The purpose of the interim stay was to enable the Stay Application to be heard by me on 23 July 2024, and appropriate timetabling directions to be made.

12 As was the case with the Reopening Reasons, some more detail regarding the background to the Applications is needed in this context. This was addressed in paragraphs 6 to 16 of the Reopening Reasons which, for ease of reference, are repeated below in largely the same terms.

13 The plaintiff seeks to pursue the Documents Application to enable him to uplift and inspect the Documents even though they are subject to a claim of legal professional privilege by the defendants. In substance the plaintiff contends that the Documents are not privileged because the so-called 'fraud/crime' exception applies by reason of the engagement and operation of s 1307(1) and 1308(1) of the Corporations Act 2001 (Cth) (Act). These sections relevantly relate to offences associated with falsification of books affecting or relating to the affairs of a company (s 1307(1) of the Act), and the authorising of the making of materially false or misleading statements in certain documents required by the Act to be kept by a company (s 1308(1) of the Act).

14 The Documents Application is related to a previous application made by the defendants that addressed almost entirely the same issue, which was heard and determined by Hetyey AsJ (Related Application). I say 'almost entirely the same issue' because the current Applications seek to uplift and inspect two additional documents that were not the subject of the Related Application[3] and the plaintiff now also relies upon s 1308 of the Act which, for procedural fairness reasons, he was not permitted to do at the hearing of the Related Application.

15 The Related Application was made by the defendants in circumstances where the plaintiff had alleged that he was entitled to uplift and inspect the documents the subject of the Related Application, notwithstanding the claim of privilege, because the crime/fraud exception applied by reason of the operation of s 1307(1) of the Act. The defendants sought orders that the documents the subject of the Related Application were the subject of legal professional privilege and should not be uplifted or inspected. This was a little unusual because in the ordinary course one might have expected the plaintiff to have made an application for an order allowing the relevant documents to be uplifted and inspected, which the defendants would then have opposed given their contention that the documents were the subject of legal professional privilege. In any event, the application was heard on 13 September 2022 and detailed reasons were delivered by Hetyey AsJ on 31 July 2023.[4]

16 In the Related Application it was submitted by the plaintiff that the relevant documents were communications in furtherance of a fraud or crime, namely the falsification of the minutes of the board meetings of National Tiles in April, May and August 2020. Very briefly, the plaintiff contended that the April 2020 board minutes (Approved April Minutes) were false because the minutes:

1. failed to record that a particular resolution regarding a 'Shareholders' Agreement' was passed at the April 2020 board meeting (Morphet Shareholders' Agreement Resolution); and

2. recorded that a different resolution regarding a 'Shareholders' Agreement' was passed at the April 2020 board meeting (Walker Shareholders' Agreement Resolution), when in fact that resolution was not passed at the meeting.

17 The May and August 2020 board minutes were said to be false insofar as they confirmed and ratified that the Walker Shareholders' Agreement Resolution was passed at the April 2020 board meeting (April 2020 Meeting), and confirmed and ratified that the Approved April Minutes were an accurate record of the April 2020 Meeting.

18 The plaintiff was not successful in his attempt to uplift and inspect the documents the subject of the Related Application because Hetyey AsJ determined that, on the evidence before him, it did not establish on a prima facie basis that the board minutes had been falsified. His Honour concluded that the likely inference available on the evidence was that the board minutes were the subject of a genuine dispute between the parties. His Honour made orders on 7 August 2023, that the documents the subject of the Related Application were subject to legal professional privilege and could not be uplifted or inspected by the plaintiff.

19 Until the last day of oral closing submissions at trial the defendants had pleaded in their defence and maintained throughout the interlocutory stages and the trial of the proceeding,[5] that the Walker Shareholders' Agreement Resolution had been passed at the April 2020 Meeting. During an exchange between senior counsel for the defendants and the Bench on the last day of oral closing submissions at the trial the Court was informed that the defendants' position had changed. In short, the defendants no longer contended that the Walker Shareholders' Agreement Resolution was passed at the April 2020 Meeting but contended that it was passed at the May 2020 meeting (May 2020 Meeting), and only at the May 2020 Meeting.[6] A copy of the transcript pages relevant to and recording the exchange between senior counsel and the Bench is attached as Annexure A for ease of reference.

20 The oral closing submissions and the trial concluded later that day and judgment was reserved. After the trial concluded nothing further was raised by the parties with the Court about the defendants' change of position until the prospect of the Applications being made was raised with the Court a little over five months later, on 17 May 2024.

21 At the May Mention senior counsel for the plaintiff informed the Court that further consideration had been given to the defendants' change of position in closing submissions, observing that prior to the change of position the entire proceeding had been conducted on a particular basis by the defendants, which it was submitted was now known to be false. It was submitted that the proceeding unfolded in a particular way, and that decisions were made by the plaintiff, including forensic decisions, because of the false position that had been adopted by the defendants. The plaintiff contended that there would be a range of consequences as a result. One of the 'important' consequences was said to be that the Related Application was pressed and argued by the defendants before Hetyey AsJ on a false position.

22 In the light of the defendants' changed position, the history of the proceeding, and the hearing and outcome of the Related Application, senior counsel for the plaintiff informed the Court at the May Mention that this explained and gave context as to why the Applications were being made at this late stage. The Court was also informed that the plaintiff will be contending on the Documents Application that the documents are not privileged because the relevant communications were made in furtherance of a crime or fraud, namely, contraventions of ss 1307(1) and 1308 of the Act. As was appropriate, no consideration was given by the Court to the merit or otherwise of the substance of these contentions at the May Mention, when considering the Reopening Issue, or in the Reopening Reasons.

Plaintiff's submissions on the Stay Application

23 The plaintiff seeks a stay or deferral of the delivery of the Primary Reasons to enable the Applications to be heard and determined prior to the reasons being handed down. As Ms Whiting deposed to in the 16 July Whiting Affidavit, depending on the outcome of the Documents Application, and the content of any documents to which the plaintiff gains access, the plaintiff has foreshadowed making a reopening application; although the basis on which any reopening application may be made will not be known until at least the Documents Application is heard and determined. Ms Whiting stated that the plaintiff 'may be prejudiced'[7] in taking such steps if the Primary Reasons are handed down prior to the Documents Application being heard and determined.

24 In his written submissions the plaintiff addressed the background to the Stay Application, referring to, among other things, the Related Application, the reasons of Associate Justice Hetyey in Selak No 1, the Applications, the interim stay order made on 17 July 2024, and the fact that the Applications are due to be heard by Justice Harris of this Court on 6 August 2024.

25 With respect to the reasons advanced in favour of granting the Stay Application, the plaintiff observed that, whilst the language of 'stay' had been used, on one view all the Court was being asked to do was to defer delivering its reasons for a period in the exercise of its usual case management powers, referring in this context to s 47 of the Civil Procedure Act 2010 (Vic) (CP Act), and the decisions in Curtin v University of New South Wales (No 1)[8] and Anglo American Investments Pty Ltd (Trustee) v Commissioner of Taxation.[9]

26 Irrespective of which analytical framework is adopted, the plaintiff submitted that there were four reasons why the Court should not deliver the Primary Reasons at this time, namely:

1) First, to ensure the proper administration of justice and integrity of the Court's decision in circumstances where, as here, there is a real prospect that there is evidence that ought to have been before the Court at trial which has been withheld.

2) Second, deferring the delivery of the Primary Reasons until the determination of the Documents Application will facilitate the overarching purpose of the CP Act.

3) Third, the defendants will not suffer any material prejudice if the delivery of the Primary Reasons is deferred until after the Documents Application is heard and determined.

4) Fourth, the plaintiff is likely to suffer prejudice if the Primary Reasons are delivered before the Documents Application is determined.

Proper administration of justice and integrity of Court's decision

27 In connection with the first reason, the plaintiff submitted that, given the defendants' change of position, it will be contended on the Documents Application that it followed that an offence was committed when Frank Walker voted to confirm as true and correct, and to ratify the minutes of the April 2020 Meeting. It was said that, accordingly, and contrary to the outcome in Selak No 1, it will be contended that all documents going to the preparation of the resolutions inaccurately recorded in the minutes of the meetings were created in furtherance of the offending, and are therefore not protected by legal professional privilege. The plaintiff submitted that if the Documents Application is successful he will have available to him documents that should have been available at trial but were not available as a result of the defendants conducting the Related Application on a false basis.

28 In this context the plaintiff made various observations regarding the importance of reasons for decision, and observations regarding reasons for decision being 'inextricably linked' with the consequent judgment and orders. In so doing reference was made to cases including Soulemezis v Dudley (Holdings) Pty Ltd[10] and Wainohu v New South Wales.[11] By reason of the defendants' change of position, the Documents Application, and the plaintiff foreshadowing the prospect of reopening his case, it was submitted that the Court was on notice that there is a real prospect that: there is evidence available that is relevant to the issues in dispute at trial; the evidence concerns the commission of a criminal offence; the evidence was withheld from the plaintiff on an erroneous basis; and, as a consequence, the evidence was not put before the Court at trial.

29 In light of these matters the plaintiff submitted that if the Court published the Primary Reasons before the determination of the Documents Application there is a real risk that the reasons will be based on inaccurate or incomplete facts, which would therefore undermine the proper administration of justice.

30 Contrary to the defendants' submissions, the plaintiff contended that, on the question of relevance, the Court does not look only to 'central' issues in the case, but relevance to issues in the case more generally. It was also submitted that, although the content of the Documents as potential evidence is not yet known, they may be relevant to issues in addition to exemplary damages, including: the tort claims; the course of conduct relied upon in connection with the alleged breach of the implied terms of cooperation in the option agreement with National Tiles, and causation in connection with the genuineness or otherwise of the offer in the Herbert Smith Freehills letter of 19 June 2020 (19 June HSF Letter) to discuss the terms of the shareholders' agreement proffered to Mr Selak to see if agreement could be reached (PSA Discussion Offer). It was also said that the Documents may be relevant to the credit of Frank Walker.

31 Whilst recognising that reasons are essential to the integrity of the judicial process because of their relationship to the orders that they explain and justify, the plaintiff submitted that a delay in providing final orders (as opposed to the delay of delivery of reasons) was no remedy to inaccurate or incomplete reasons. This was said to be particularly so given that the primary reasons are in respect of a trial involving the determination of questions of fact, including questions of credit, and it being open to the Court to defer publishing its reasons to avoid embarrassment or the risk of inconsistency.

32 For the above reasons it was submitted that deferring the delivery of the Primary Reasons until the determination of the Documents Application would safeguard the integrity of the Court's decision and that this was in the interests of the proper administration of justice.

Consistency with the overarching purpose under the CP Act

33 Deferring delivery of the Primary Reasons was submitted to be consistent with the overarching purpose of the CP Act, with a relevant premise said to be the Court proposing to hand down reasons only without delivering judgment and making final orders. If this was so, it was said that the proceeding would remain on foot and the Court would continue to exercise power. By reference to the decision in Cameron v Cole[12] it was said that the Court would only be functus officio if it has given final and conclusive judgment so as to exhaust its powers and jurisdiction in respect of that case.

34 The plaintiff further submitted that the documents sought in the Documents Application are potentially relevant to important issues in the trial, and that if the Court was to publish its Primary Reasons but not final orders, and the Documents Application was determined in the plaintiff's favour, the plaintiff would likely be required to ask the Court to revisit the Primary Reasons. The plaintiff contended that this would put the Court in the unenviable position of being asked to issue revised or supplementary reasons, which would be inconsistent with the overarching purpose of facilitating the just, efficient, timely and cost-effective resolution of the real issues in dispute.

35 In this context it was further submitted that deferring the delivery of the Primary Reasons well served the overarching purpose for the following reasons:

1. There is a real prospect that the Documents will be relevant to the real issues in dispute, with examples said to include: what transpired at the April 2020 Meeting; the alleged falsity of the Approved April Minutes; and what Frank Walker said or did not say to Mr Larsen and others in relation to the April 2020 Meeting being relevant to causation and exemplary damages.

2. If the Primary Reasons are delivered before the determination of the Documents Application there is a real prospect that the Court will need to revise or supplement its reasons when it is plainly preferable for the administration of justice that the Court deliver one set of reasons only without the need for revision.

3. It is more efficient for the Court's decision-making processes to have before it all the evidence that the parties seek to rely upon before its reasons are finalised. It was said that publishing reasons but deferring the making of orders for final judgment necessarily leaves open the possibility that the Court will be asked to reconsider and republish its own reasons, whereas deferring the publication of the Primary Reasons will ensure the Court's resources are drawn upon sparingly and reduce the need for duplication of the Court's work.

36 With respect to delay, it was submitted that this was appropriately and adequately addressed and explained in paragraphs 38 to 56 of the 19 July Whiting Affidavit. It was further submitted that the delay had to be seen in the context of the defendants taking years before changing their position about when the Walker Shareholders' Agreement Resolution was passed, contending that this change of position remained unexplained. In addition, the plaintiff contended that if the change of position had been notified much earlier in the proceeding then the Applications would have been made, heard, and determined much earlier, and the Court would not now be faced with this Stay Application.

37 As to the defendants' suggestion that the Documents Application or calls for the Documents could and should have been made at various stages through the trial, this was said to be without merit, noting also that the change of position of the defendants was not known until the end of the trial.

38 With respect to the absence of prejudice to the defendants, it was said that, for almost three years, the defendants had chosen to conduct the defence on a false footing, and that if questions from the Bench had not been asked of the defendants in the way that they were on the final day of the trial, it may be that the defendants would never have disclosed the true position to the Court. The plaintiff contended that, having 'lied for three years', the defendants cannot now say that they are prejudiced by a relatively short delay in the delivery of reasons. In this context it was emphasised that the Applications are due to be heard on 6 August 2024 and that it can be reasonably expected that a determination is likely to follow without undue delay. In terms of the timing of the delivery of the Primary Reasons, the plaintiff submitted that having the Primary Reasons delivered in mid-July as compared to (say) some time in August or September 2024 was immaterial.

39 During oral submissions it was submitted that the relative position of the trial and the timing did not weigh in favour of the stay being granted. It was again emphasised in this context that the change of position occurred at the end of the trial.

40 So far as the alleged prejudice to the plaintiff is concerned, reference was again made to the foreshadowed Reopening Application and it was submitted that if the Primary Reasons are delivered the plaintiff will be in the challenging position of seeking leave to reopen his case in circumstances where the Court has already published its reasons. Noting that the Court's power to grant leave to reopen is discretionary, the plaintiff submitted that if reasons were first delivered before the determination of the Applications, the authorities suggest that the plaintiff would bear a higher burden on such a reopening application in order to satisfy the Court that his case should be reopened. In this context reference was made to the observations to that effect in Smith v New South Wales Bar Association.[13]

41 The plaintiff also contended that, in addition to the prospect of needing to satisfy a higher burden to reopen his case (in a manner equivalent to that of adducing fresh evidence on appeal), the plaintiff would likely face more forceful arguments that embarrassment or prejudice would be caused to the defendants by reason of the Court already having published its reasons. These matters were said to demonstrate that the plaintiff was likely to suffer prejudice on any later application for leave to reopen his case if the Primary Reasons were published before the Applications are heard and determined.

42 The plaintiff submitted that it was speculative to suggest that delivery of the Primary Reasons might assist in resolving the falsity issues in the Documents Application. It was further contended that any relevant findings in the Primary Reasons on the topics will have been made without the additional evidence in any event. The plaintiff also submitted that to proceed as the defendants proposed would be to reward the defendants for their alleged poor conduct of not notifying the Court or the plaintiff of the change of position much earlier.

43 The plaintiff contended that there was no difficulty or tension if the Documents Application was decided by a different judge on a prima facie basis even though similar issues may be determined on a final basis in the Primary Reasons. This was said to be not uncommon, and it was noted that this was precisely what had occurred with the reasons of Hetyey AsJ in Selak No 1.

44 The plaintiff submitted that the defendants' emphasis on finality of litigation should be viewed as a cynical submission given, so it was said, the issue would have been addressed and resolved earlier if the change of position had been addressed earlier by the defendants. It was submitted that the defendants should not be rewarded for conducting the proceeding on what was said to be a false basis.

Defendants' submissions on the Stay Application

45 The defendants opposed the Stay Application, emphasising by way of introduction that the Stay Application is being made because, five months after the trial ended and judgment was reserved, the plaintiff brought the Documents Application, and that 'if the plaintiff is successful in that interlocutory application, the plaintiff says he may apply for leave to reopen the trial: to adduce further documents'.[14] The defendants also contended that, at present, the plaintiff's submissions '... are coy as to until when - by date or by event - the stay may ultimately be sought'.[15]

46 As to power, the defendants stated that the Stay Application is made pursuant to the inherent jurisdiction of the Court with no other statutory basis being identified. They submitted that the Court has a general discretion to grant a stay as a result of its power to control its own proceedings, as well as pursuant to s 30 of the Supreme Court Act 1986 (Vic) (Supreme Court Act). This was recalibrated to some extent during oral submissions during an exchange with senior counsel regarding the power to make stay orders, adjournment orders or deferral orders in this context.

47 With respect to the considerations that a court should take into account when addressing an application for a stay of the delivery of reasons, the defendants submitted that the considerations are similar to those considered when a court is deciding whether to grant a temporary stay of a proceeding pending the determination of a proceeding in another court. In so doing reference was made to the decisions in Tucker v State of Victoria[16] and Sterling Pharmaceuticals Pty Ltd v Boots Co (Aust) Pty Ltd.[17] The considerations were said relevantly to include the following:

1. whether the termination of one proceeding is likely to have a material effect on the other;

2. the public interest;

3. the undesirability of two courts competing to see which of them determines common facts first;

4. consideration of circumstances relating to witnesses;

5. whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted;

6. the undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues;

7. how far advanced the proceedings are in each court;

8. the law should strive against permitting multiplicity of proceedings in relation to similar issues; and

9. generally balancing the advantages and disadvantages to each party.

48 The defendants put forward seven reasons as to why they contended that the Stay Application ought to be refused. First, it was submitted that the issue the subject of the Documents Application and foreshadowed reopening application is not central to the issues in dispute at trial, noting in this context that the Documents relate to the April 2020 Meeting. The defendants submitted that this proceeding involved primarily a claim in contract with the key issues being: whether the agreement contained certain alleged implied terms; whether the proffering of a particular Shareholders' Agreement breached the agreement; and if so, whether that conduct caused the plaintiff to suffer any loss.

49 The defendants contended that the Documents are not relevant to the contract claim. They observed that the inducing breach of contract tort claim against Frank Walker and the second defendant (Frank Walker Group Pty Ltd) only falls for determination if the plaintiff succeeds in his contractual claim. The key issues in the tort claim were said to be whether a director or shareholder of a company can induce a breach of contract by that company, and if so, the assessment of the plaintiff's loss and damage. It was said that the events surrounding the April 2020 Meeting are relevant only to that final question, and in that respect, only relevant to any award of exemplary damages. It was also emphasised that all defendants have always denied any dishonesty, both generally and specifically in relation to the Approved April Minutes, and that they continued to do so.

50 The defendants submitted that determination of an application for further documents which may be relevant to an ancillary issue at best ought not to delay the delivery of final reasons in the trial. It was also emphasised that Hetyey AsJ reviewed the documents which are the essence of the Documents Application when determining the Related Application, and discussed the same at some length in Selak No 1.[18]

51 Second, it was submitted that the plaintiff's delay in making the Documents Application was unexplained on the Stay Application and cannot be tested. It was observed that the plaintiff became aware of the facts forming the basis for the Documents Application on 12 December 2023, with the application not being made until five months later in May 2024, having been the subject of solicitor correspondence in April 2024. If the application had been made promptly it was suggested that it would have been heard and determined prior to the date on which the Primary Reasons were scheduled to be delivered.

52 In the context of delay, the defendants contended that where the plaintiff seeks an indulgence from the Court and for the Court to delay and defer its usual processes, including one of its central functions (being the delivery of reasons for judgment), the plaintiff was bound in this application to have explained the delay in a way that could be tested. The defendants submitted that, absent a satisfactory explanation on this application, complaints about prejudice to the plaintiff from the delivery of the Primary Reasons should carry little weight.

53 Following receipt of the defendants' written submissions, the plaintiff notified the Court and the parties shortly before the hearing started that he may rely on Ms Whiting's explanation in the 19 July Whiting Affidavit filed in support of the Documents Application. Paragraphs 38 to 56 of that affidavit were relied upon without objection, which I have considered but will not set out. Senior counsel for the defendants appropriately stated that no issue was taken with the honesty of the explanation but submitted that it provided no reasonable explanation of why it had taken so long to make the Documents Application, which it was submitted should have been made by mid-January 2024. In this context emphasis was placed on the almost identical nature of the Documents Application to the Related Application. It was contended that four to five months could not have been needed to make the application, and that there was no satisfactory or reasonable explanation in the 19 July Whiting Affidavit of that delay.

54 Third, it was observed that the Court intended to deliver the Primary Reasons and not final orders. Thus, so it was said, the potential prejudice to the plaintiff at its highest was very confined. It was submitted that the Court remains seized of the proceeding; that the Documents Application can proceed; and that the test for reopening is markedly less burdensome before making final orders than it is after final orders are entered.

55 Fourth, the defendants submitted that delivery of the Primary Reasons may facilitate resolution of the issues between the parties about the alleged falsity of the minutes and, thus, about production of the Documents and any foreshadowed reopening application. In particular, it was contended that if the falsity of the minutes issue has been determined in the Primary Reasons that would be relevant to the plaintiff's application and, further, if the issue is being determined on a contingent basis (ie, if the plaintiff has not succeeded in the contract claim) such findings would also be relevant to the utility of the Documents Application. It was submitted that the delivery of the Primary Reasons will assist the parties properly to assess the next steps in the proceeding, including the utility of the plaintiff pressing the Documents Application. It was further observed that delivery of the Primary Reasons may also have the result that the Court's and the parties' resources are not expended on interlocutory applications that have no overall utility.

56 Fifth, and relatedly, the defendants submitted that it was undesirable for a judge to adjudicate on a prima facie basis the very same matter that is at present before the trial judge who is determining the trial of the matter on a final basis. The defendants contended that the prospect of prima facie findings being made first on the Documents Application that may be inconsistent with findings made on a final basis would be 'highly invidious'. It was also said that this involves potentially a substantial waste of resources for the parties to make submissions and attend a hearing before a different judge when the matter may have been determined in a definitive way by the trial judge.

57 Sixth, it was said by the defendants that the relative position of the trial, and the Applications, weigh in favour of no stay being granted. It was observed that the trial has concluded and the Primary Reasons are ready to be delivered. In contrast it was noted that the Documents Application has not yet been heard and that it can safely be assumed that a decision will be reserved, perhaps for some months. Further, it was emphasised that it is only if the plaintiff succeeds in the Documents Application that he may bring a further application to reopen the trial, which would likely involve a further contested application that may well not succeed.

58 Finally, the defendants submitted that the principle of finality of litigation weighed strongly in favour of refusing the Stay Application, noting also that the litigation was commenced in 2020. In this context it was contended that the plaintiff's submissions suggest that a court must be seized of all relevant material in determining an issue in dispute, when this is not an accurate reflection of how disputes are determined before a court. It was said that, even putting to one side the fact that Hetyey AsJ reviewed the very documents the subject of the Documents Application and commented on them at some length, the record before a court will often be incomplete and courts are frequently required to determine issues based on incomplete facts. This, so it was said, does not mean that a party ought to be able to delay the processes of the Court to make further applications to seek further evidence which 'may' be relevant to an (ancillary) issue before the Court.

59 During oral closing submissions senior counsel for the defendants made a number of further submissions which, in substance, included the following:

1. The defendants had been consistent in the proceeding throughout that there had been no dishonesty, and that ss 1307 and 1308 of the Act had not been contravened.

2. As is reflected in the transcript, there was no concession of dishonesty or anything similar during closing submissions, or any concession regarding the state of mind of any person, including Frank Walker.

3. The exchange with the Bench during closing submissions regarding when the Walker Shareholders' Agreement Resolution was passed reflected a submission put at the end of the trial taking into account the evidence at trial. It was said further that it had been made plain that no lay witnesses were being called by the defendants and therefore the occasion for the puttage of the defendants' pleaded position did not arise given the manner in which the defendants case was being run, and the evidence of Ms Morphet and Mr Selak regarding the April 2020 Meeting.

4. The use by the plaintiff in submissions of frequent and colourful pejorative 'tags' and language of 'lies', 'dishonesty', 'criminality' and the like was misplaced and inappropriate. Further, the exchange between the Bench and senior counsel in closing submissions did not expose anything, but simply reflected the defendants' position at the end of the trial having regard to the evidence and the query raised by the Court in that context.

5. The course contemplated by the plaintiff will see many months of delay if it eventuates, which would see the delivery of reasons for judgment deferred into next year.

6. The delay and bringing of the Documents Application as late as May 2024 also has to be viewed in the context of the Court expressly informing the parties at the end of the trial that it was anticipated that reasons and judgment would be delivered by the end of the first half of 2024.

7. No concern should arise if a later reopening application leads to part of the Primary Reasons being reconsidered. It was submitted that no inconsistency can arise because any revised reasons will be addressing a different or supplemented evidentiary framework.

8. The plaintiff will not face a relevantly higher hurdle on reopening if the Primary Reasons are delivered, it also being noted that the circumstances to be taken into account on any such application will include the resistance to the Stay Application by the defendants. In this context the defendants contrasted the steps of entering judgment and making final orders with the delivery of reasons.

60 Overall, the defendants submitted that the just, efficient, timely and cost-effective resolution of the real issues in dispute requires the Stay Application to be refused and the Primary Reasons to be delivered.

61 I emphasise that these reasons deal only with the question of whether the delivery of the Primary Reasons should be stayed or deferred until after the hearing and determination of the Applications, and more particularly, the Documents Application.

62 It is desirable first to re-state a point of clarification that I addressed with the parties at the outset of the hearing of the Stay Application. I had notified the parties that I proposed to hand down the Primary Reasons on 17 July 2024. Had that occurred, I was planning to allow a short period for the Primary Reasons to be considered by the parties, and then address judgment and final orders. For the reasons earlier mentioned the Primary Reasons were not handed down on the Judgment Delivery Date. Consequently, the occasion did not arise - and has not yet arisen - for either party to address with the Court whether any deferral or stay of the delivery of judgment and final orders may be sought.

63 As senior counsel for each of the parties appropriately acknowledged, in the present circumstances it does not matter whether the Stay Application is considered through the framework or lens of an application for a stay order, an adjournment order, or a deferral order. There is no doubt that the Court has the power to make such orders deferring the delivery of reasons for judgment,[19] and whichever framework or lens is adopted, in the present case, the circumstances falling for consideration are the same. So much was also accepted by senior counsel for each of the parties.

64 The live question on the application is whether the Court should make a stay or deferral order in respect of the delivery of the Primary Reasons. Having regard to the particular circumstances of this case, it should not. This result better serves the administration of justice, and the overarching purpose in s 7 of the CP Act, than making such a stay or deferral order. I elaborate below as to why I have reached these conclusions, and in so doing address the submissions of the parties.

65 It was understandable common ground that regard should be had to the particular relevant circumstances in this case. To the extent that the defendants pressed the submission that a stay on the delivery of the Primary Reasons is akin or relevantly analogous to seeking a temporary stay of a proceeding pending the hearing and determination of another proceeding, I do not accept that submission. The two processes are not generally comparable, nor are they comparable in the particular circumstances of this case.

66 A period of over five months passed after the end of the trial before the plaintiff foreshadowed the Applications with the Court on 17 May 2024. This is a significant period of delay, which also occurred in circumstances where the parties had been expressly informed by me at the end of the trial that I was aiming to deliver judgment by the end of the first half of this year. As I informed the parties at the May Mention, at the time the Applications were foreshadowed a few days earlier, the Primary Reasons were well advanced. The substantial and lengthy Primary Reasons are now complete and ready to be handed down, as they were on and from the Judgment Delivery Date.

67 The trial concluded in mid-December 2023 and the plaintiff became aware of the changed circumstances forming the foundation of the basis for making the Applications on 12 December 2023, being the last day of trial. Even taking into account the evidence of Ms Whiting in her 19 July Affidavit, to which I refer but will not set out, the fact remains that there was a very substantial delay between 12 December 2023 and the raising of the issue with the Court. In so observing I also take into account that the issue was raised in correspondence with the defendants' solicitors on 9 April 2024.

68 Although I take into account Ms Whiting's explanation in paragraphs 38 to 56 of the 19 July Whiting Affidavit about the time taken to explore and make the Applications, there is in my view force in the defendants' contention that the Applications could and should have been foreshadowed and made much earlier. Whilst I of course accept that it is appropriate for, and incumbent upon, practitioners properly to satisfy themselves that they consider there to be a proper basis for making serious allegations against a party or practitioner, it is to be remembered in this context that allegations regarding the falsity of the April, May and August 2020 National Tiles board minutes already formed part of the plaintiff's case against the defendants at trial, were the subject of considerable emphasis by the plaintiff throughout the trial, and were the subject of the Related Application. Even taking into account the Christmas period after the end of the trial and other demands of practice, the Applications could and should have been foreshadowed and made earlier. If this had occurred by late January 2024, or perhaps even mid-February 2024, there would be less force in the delay point.

69 That said, even if I put this delay issue to one side, it would not change the conclusion that I have reached on the Stay Application given the circumstances. I add for completeness that I do not consider there to be any relevant force in the defendants' contention that the Applications - or document calls to the same effect - should have been pursued by the plaintiff during the trial, noting also that the circumstance triggering consideration of the issue occurred on the last day of trial.

70 If delivery of the Primary Reasons is deferred, the steps that the plaintiff hopes will follow will see considerable further delay before reasons for judgment are ultimately handed down. Whilst I do not accept the defendants' contention that the plaintiff has been 'coy' about the period over which deferral of the delivery of the Primary Reasons is sought, I do accept that the prospect of such further delay is relevant and appropriate to take into account.

71 Although the Applications are to be heard on 6 August 2024, the issues raised are said to be serious and not without complexity. So much is also apparent from the lengthy reasons of Hetyey AsJ in Selak No 1. The judge who is to hear the application is new to the matter and it is inevitable that judgment will be reserved, and understandably perhaps for some time. Further, if the Stay Application was granted and the plaintiff had some success on the Documents Application, it is at least likely that further time will pass before reasons for judgment could be delivered. As was rightly accepted by the parties, this is because the potential or foreshadowed steps the plaintiff wishes to take will include: reviewing the documents; the plaintiff receiving advice and giving instructions in relation to the foreshadowed reopening application; making the reopening application; timetabling steps for affidavit material and submissions on the reopening application; the hearing and determination of what is foreshadowed would be a contested reopening application; recommencing the trial for the receipt and consideration of further evidence and submissions if the reopening application is successful; further time for consideration by the trial judge; addressing any matters that need to be addressed in reasons for judgment; and delivering reasons for judgment and making final orders.

72 Even ignoring the prospect of any appeals in relation to the outcome of the Applications or any reopening application, if the steps referred to above are pursued in the way that the plaintiff hopes will occur, the potential further delay in the delivery of reasons for judgment will be significant, and at least many months. I am also aware that if further trial time before me is needed as a result, as things stand, this may well not take place until some time in the first half of next year at best. To the extent that the plaintiff pressed its contention that reasons for judgment could be delivered some time in August or September 2024 if the plaintiff is successful on the Documents Application and any reopening application, I do not accept that submission. Given the matters I have referred to, this is not realistic.

73 I accept the plaintiff's submission that the defendants impermissibly placed too much emphasis on what they contend are the 'central' issues in the proceeding, and that it is appropriate to look to what issues the Documents are or may be relevant to. That is not to deny that it would be relevant to take into account the fact that the Documents are relevant only to an ancillary or unimportant issue. However, that is not the case here, and I proceed on the basis that the Documents are or may be relevant to the issues referred to by senior counsel for the plaintiff in connection with the contract and the tort claims.[20]

74 The Primary Reasons having been completed, the Court is in a position to make an informed assessment as to the extent to which further evidence on the issues referred may impact upon the material outcome of the proceeding. Although it is of course not appropriate to discuss in these reasons what issues have been addressed in the Primary Reasons, or how they have been determined, it is appropriate for the Court to consider, on the evidence and submissions before the Court on this application, the extent to which the Documents or any related evidence might impact upon the material outcome of the proceeding. Having given consideration to this issue, and again reviewed the Primary Reasons in this context, I have concluded that even if the plaintiff succeeds on the Documents Application and is granted leave to reopen in connection with the same, it will not make a difference to the material outcome of the proceeding. Why this is so will become apparent when the Primary Reasons are published and it is neither appropriate nor desirable to say anything further on the topic here.

75 Given the above, if the Primary Reasons are delivered shortly, the plaintiff and the defendants will also each be in a position to give consideration to the same and the extent to which, if any, the content of the reasons impacts upon their respective positions regarding various matters, including the timing of the delivery of the final judgment and orders, and their respective approaches to the Applications. It is at least possible that this may result in some further efficiencies, including in respect of time, cost and judicial resources in connection with the Documents Application. In the circumstances, this is a relevant matter to take into account, although the outcome of the Stay Application would remain the same if it is put to one side.

76 To the extent that the plaintiff contended that it will be inefficient, duplicative, or take up more judicial time if the Primary Reasons are delivered but then have to be revisited, I do not consider this submission to have material force in the circumstances. This is because the Primary Reasons have been completed and are ready to be delivered. Consequently, if a stay was granted and the circumstances transpired in a way that resulted in the need for the Primary Reasons to be revisited, it will make little difference. This is because this will need to occur whether or not the Primary Reasons are delivered now or later.

77 That said, I do accept that where appropriate and the justice of the case requires, it can be desirable to seek to avoid a circumstance where reasons for judgment are delivered, and then may have to be revisited as a result of reopening, potentially with findings being made on further evidence that are different to findings made in the reasons first published. However, sometimes this is a consequence of the grant of leave to reopen a case after reasons have been delivered, and there is nothing inherently wrong about that - noting also that each case must depend upon its own facts and circumstances, as is the case here. It is also to be noted that any further findings would not be inconsistent with earlier findings in the Primary Reasons first published because they will be findings made by reference to a different or supplemented evidentiary framework. I also refer in this context to my earlier observations regarding the material outcome of the proceeding in paragraph 74 above.

78 The plaintiff regarded the defendants' submissions regarding finality of litigation and claimed prejudice by the effluxion of time since the litigation commenced to be 'cynical' and without merit. In this and other contexts, emphasis was placed upon what was described as the 'Material Concession' made in closing submissions on the last day of trial, and the contention that it showed that the proceeding was conducted on a false basis for more than three years in circumstances where this position should have been explained and made clear much earlier by the defendants. Some exchanges with senior counsel for each of the parties took place in the hearing of this application regarding what was said, and the context in which it was said, in the relevant exchange between the Bench and senior counsel for the defendants in closing submissions.[21] I was appropriately encouraged by each of the parties to revisit the transcript of the exchanges, which I have now done more than once. In the present context, I make the following observations about the exchange.

79 First, the exchange took place during oral closing submissions at the conclusion of the trial after all the evidence to be relied on by the parties had been led.

80 Second, the statements made by senior counsel for the defendants are to be considered in context. That context includes: that the exchange took place in closing oral submissions in a trial after the evidence had been completed; the purpose of closing submissions, including what findings each party says should be made on the evidence; ensuring that the entirety of the exchange with the Bench on the topic is to be considered, and not just the end point; the fact that I was enquiring of senior counsel for the defendants, at the end of the evidence and in closing submissions, what the defendants' position then was as to whether they contended that the Walker Shareholders' Agreement Resolution was passed, and if so, when it was passed; the purpose of the exchange being to establish for the Court what the defendants' closing position was at that time in the trial after all the evidence was in; and the fact that this exchange, and all of the other (many) questions addressed with counsel for each of the parties during closing submissions, were directed towards understanding the then position of the parties on many issues raised at trial in order to assist me, as trial judge, with my then remaining tasks of considering the issues, making findings, preparing reasons for judgment, delivering reasons, and giving judgment.

81 Third, the enquiry made of senior counsel on the topic was not a general enquiry in the abstract, or an enquiry about what instructions he may or may not have had regarding the Walker Shareholders' Agreement Resolution, or anything else. In our adversarial system there would be no occasion, and here there was not any occasion, for such enquiries in the abstract, and nor should there be. Given the circumstances, had I made such an enquiry in that way in closing submissions it would have been inappropriate in my view.

82 Fourth, neither at the time, nor on my re-reading of all of the relevant transcript, did I understand senior counsel's statements to be anything other than informing me of what, having regard to the then state of the evidence at the end of trial, the defendants' position was regarding the passing of the Walker Shareholders' Agreement Resolution. At the end of the exchange that position was made clear, namely, that it was contended that the Walker Shareholders' Agreement Resolution was passed at the May Meeting and not the April 2020 Meeting. Further, a review and fair reading of the full transcript of the exchange reveals that the topic was being addressed by senior counsel with the evidence at trial and submissions in mind, and as to what the defendants' position was having regard to the state of the evidence at that point in the trial.

83 Fifth, the exchange did not involve any statement by senior counsel for the defendants about the state of mind of Mr Walker or anyone else, or any statement regarding what instructions senior counsel might or might not have had. Senior counsel was responding to a specific query from the Bench in closing submissions at the end of the trial about the defendants' position on a particular fact in issue in the light of the state of the evidence at that time.

84 Having regard to the above and the context and content of the exchange at the time, I do not consider there to be persuasive force for present purposes in the plaintiff's contention that this position should have been stated, explained, or made clearer at an earlier time. Indeed, it seems to me that it could not have been addressed earlier because the final state of the evidence was not known until the evidence was completed. It was open to the defendants to conduct their case in the manner they chose to by calling no lay evidence for their own forensic reasons. It was also open to the defendants to see what evidence emerged from Ms Morphet and Mr Selak regarding the April 2020 Meeting before making an assessment, having regard to the evidence, of what their position would be on the topic in closing submissions at the end of the trial. The time and place for this to be addressed, and clarified by the Court if desired by the trial judge, was during closing submissions, which is what happened.

85 I add for completeness that I do not consider that the plaintiff gains any material assistance for present purposes from the fact that Ms Morphet and Mr Selak were not cross-examined on the topic. That had its own forensic consequences for the defendants, which were expressly addressed at least in part at trial. However, and in any event, it does not alter the content, context, character, or nature of the exchange that occurred between senior counsel and the Bench during closing submissions on the topic of the Walker Shareholders' Agreement Resolution.

86 In the circumstances of this case it is appropriate to have regard to the lengthy period for which this litigation has been on foot, and the general and well-accepted desirability of promoting finality in litigation. Further delay in this context is not only a form of prejudice for the defendants, it is also to be considered in the context of the administration of justice and overarching purpose more generally.

87 Having regard to these matters, I also do not consider there to be force in the plaintiff's contention that handing down the Primary Reasons would involve rewarding the defendants in some way for poor conduct.

88 As to the defendants' contention that it would be 'invidious' to have the Documents Application determined on a prima facie basis while the trial judge is dealing with the same or similar issues on a final basis, this submission carries little weight. There is no difficulty with such a concept, as the reasons of Hetyey AsJ in Selak No 1 illustrate in a parallel way. Whilst matters of timing can make the comparison appear more acute, this consideration does not assist the defendants' position on this application.

89 For present purposes I do not find force in the defendants' observation that Hetyey AsJ read most of the documents at the time of the Related Application. That, of course, is no criticism of the course adopted by his Honour. On the plaintiff's case that was at a different time and on a different basis. Whilst it may be a relevant matter for the purposes of the Documents Application for the judge hearing the application to take into account (which is a matter for the judge), it is of little, if any, relevance here.

90 Further, although appropriate to take into account, in the circumstances I do not consider that handing down Primary Reasons gives rise to any material prejudice to the plaintiff in the context of any future reopening application. But even if it is assumed to be so, it would not change the outcome of this application, alone or in combination with any other circumstances. As addressed in the Reopening Reasons,[22] it is also to be recalled in this context that the overriding principle for reopening applications focusses on whether, taken as a whole, the justice of the case favours the grant of leave to reopen. Should such an application be made, relevant context will also include this application and the plaintiff's and defendants' positions in relation to it.

91 As to the submissions made regarding the Primary Reasons being delivered separately from final orders, I refer to the point of clarification made at the commencement of this section of these reasons. To the extent that the plaintiff emphasised the inextricable links between reasons for judgment and judgment and final orders, so much may be accepted. However, it does not relevantly assist the plaintiff on this application. I add that I will allow the parties a short opportunity to consider the Primary Reasons before handing down judgment and making final orders in case any party wishes to make any submission or foreshadow any application about the timing of the delivery of judgment and final orders.

92 As I have said, having regard to the particular circumstances of this case, and for the reasons referred to above, the administration of justice, and the overarching purpose under the CP Act, are best served by handing down the Primary Reasons and dismissing the plaintiff's application to defer their delivery.

93 I note for completeness that although serious allegations have been made against the defendants in the context of the Documents Application, senior counsel for the plaintiff responsibly confirmed at the May Mention that no similar allegations are being made against the defendants' solicitors or counsel.[23]

94 The delivery of the Primary Reasons should not be deferred pending the hearing and determination of the Documents Application, or the Applications more generally, and the Primary Reasons should be handed down shortly.

95 When the Primary Reasons are handed down I will provide the parties with a short period to consider the reasons before delivering judgment and making final orders.

96 The plaintiff's Stay Application made by paragraph 2 of the plaintiff's summons filed 17 July 2024 will be dismissed.

97 I will hear from the parties on the question of costs.

[1] Having been raised between the parties by letter dated 9 April 2024.

[2] Selak v National Tiles Co Pty Ltd & Ors (No 2) [2024] VSC 409.

[3] The documents referred to in sub-paragraphs 2(a), (b) and (c) of the May Summons were also the subject of the Related Application. The documents referred to in paragraph 2(d) of the May Summons were not; being '... documents numbered 1 and 2 in the Schedule at pp14-24 of Exhibit PJH‑4 of the affidavit of Peter Holloway affirmed 12 September 2022.'

[4] Selak v National Tiles Co Pty Ltd [2023] VSC 446 (Selak No 1).

[5] Including on the Related Application.

[6] Transcript 854. See also the full context and exchange at transcript 845 to 854.

[8] [2008] NSWSC 1234.

[9] [2021] FCA 974, [2]-[3].

[10] (1987) 10 NSWLR 247, 279 (McHugh J).

[11] (2011) 243 CLR 181, [44] (French CJ and Kiefel J).

[12] [1944] HCA 5; (1944) 68 CLR 571, 590 (Rich J).

[13] [1992] HCA 36; (1992) 176 CLR 256, 267 (Brennan, Dawson, Toohey and Gaudron JJ).

[14] Defendants' written submission [2]. Emphasis in original.

[15] Defendants' written submission [3].

[16] [2021] VSCA 120, [121] (Kyrou, McLeish and Sifris JJA).

[17] (1992) 34 FCR 287 (Lockhart J).

[19] And it was not contended otherwise. The sources of power include the Court's inherent jurisdiction, and s 47 of the CP Act, which provides as follows: Without limiting any other power of a court, for the purposes of ensuring that a civil proceeding is managed and conducted in accordance with the overarching purpose, the court may give any direction or make any order it considers appropriate, including any directions given or orders made -

(a) in the interests of the administration of justice; or

See also s 30 of the Supreme Court Act, which provides that: 'Nothing in this Act affects the power of the Court to stay a proceeding in the Court, either of its own motion or on the application of any person, whether or not a party.'

[20] Although I do observe that the contention that the Documents may bear upon causation in connection with the 19 June HSF Letter and the PSA Discussion Offer appears to me to be highly speculative at best.

[21] See the whole of transcript at 845:25 to 854:29, reproduced for ease of reference as Annexure A. Note also that the references to the 'main' meeting should read 'May' meeting, and that 'late and' at 849:4 should read 'latent'.

[22] Selak v National Tiles Co Pty Ltd (No 2) [2024] VSC 409, [43] (Connock J).