Platcher v Joseph [2004] FCAFC 68 | Case summary

Federal Court of Australia (Full Court)|2004-07-01|Before: Weinberg JJ

BACKGROUND 2 On 12 February 1999, a sequestration order was made in respect of the estate of Mr Platcher on the petition of Mr Joseph. The act of bankruptcy upon which the petition was founded was failure to comply with a bankruptcy notice. The bankruptcy notice was based upon a judgment of the Local Court of New South Wales of 31 August 1995 in favour of Mr Joseph in the sum of $16,320.15. 3 On 4 December 2000, the Commission commenced the Disqualification Proceeding in the Equity Division of the Supreme Court of New South Wales. The basis of the Commission's claim was that Mr Platcher had managed a corporation, Growthcorp (Aus) Pty Ltd ('Growthcorp'), while disqualified from doing so by reason of being an undischarged bankrupt. Mr Platcher resisted the Commission's claims on the ground, inter alia, that he was entitled to have his bankruptcy annulled. In pursuit of that ground, Mr Platcher commenced the Annulment Proceeding on 7 February 2002. 4 On the first day of the hearing of the Disqualification Proceeding in the Supreme Court of New South Wales on 11 February 2002, Mr Platcher applied to have the proceeding adjourned pending the outcome of the Annulment Proceeding. Gzell J granted the adjournment and subsequently, on 29 April 2002, ordered that the Disqualification Proceeding be transferred to the Federal Court. 5 On 16 April 2002, the Commission filed a notice of motion in the Annulment Proceeding seeking, inter alia, the right to intervene in that proceeding. The Commission's claim to be entitled to intervene was based on s 1330(1) of the Corporations Act and, alternatively, on O 77 r 9(1) of the Federal Court Rules. The difference in the two bases is that, if the Commission was entitled to participate pursuant to s 1330 of the Corporations Act, it could become a party to the proceeding with all of the rights, duties and liabilities of a party. 6 Section 1330 of the Corporations Act provides that the Commission may intervene in 'any proceeding relating to a matter arising under this Act' (emphasis added). The primary judge observed that, in the Disqualification Proceeding, Mr Platcher was relying on his claim to have his bankruptcy annulled. Her Honour considered that, in the light of that defence, the Annulment Proceeding related to the Disqualification Proceeding, which was a matter arising under the Corporations Act. The primary judge therefore proceeded on the basis that s 1330 applied and the Commission was a party to the Annulment Proceeding as well as the Disqualification Proceeding.

THE ISSUES AT TRIAL 7 The two proceedings were heard together because the outcome of each was very much tied up with the outcome of the other. Nevertheless, it is convenient to deal with the two proceedings separately.

THE ANNULMENT PROCEEDING 8 Section 153B of the Bankruptcy Act provides that if the Court is satisfied 'that a sequestration order ought not to have been made', the Court may make an order annulling the bankruptcy. Mr Platcher contended that the sequestration order ought not to have been made on 12 February 1999 because neither he nor his legal representative was present at the time and, in any event, because the debt relied on by Mr Joseph had been discharged by a compromise settlement made in December 1998. 9 The first ground appears to be based on a misunderstanding between Mr Platcher and his then solicitor as to whether the petition filed by Mr Joseph had been dismissed. There was no suggestion that the bankruptcy notice or the petition had not been properly served. The primary judge found that there was no basis for concluding that the sequestration order ought not to have been made on this ground. 10 Mr Platcher also claimed that he had negotiated a compromise of the judgment debt in the Local Court in favour Mr Joseph. He asserted that the compromise was negotiated with Mr Joseph's agent, Mr Ray Nehme, in December 1998. The primary judge was not satisfied that any compromise had been negotiated prior to the making of the sequestration order. 11 In any event, even if satisfied that there had been a compromise, her Honour would not have exercised the Court's discretion in favour of Mr Platcher because of his conduct in relation to the management of Growthcorp. That conduct will be adverted to in dealing with the appeal from the orders made in the Disqualification Proceeding. Despite having indicated an intention to apply for annulment as early as October 2000, Mr Platcher did not make his application until 7 February 2002, four days before the date on which the Disqualification Proceeding had been set down for hearing in the Supreme Court. The primary judge considered that there was a strong inference, therefore, that Mr Platcher had commenced the Annulment Proceeding simply as a means of frustrating the Disqualification Proceeding. That factor was regarded by her Honour as relevant to the exercise of the discretion under s 153B.

THE DISQUALIFICATION PROCEEDING 12 The principal relief claimed by the Commission in the Disqualification Proceeding was an order under s 206E of the Corporations Act. Section 206E(1)(a)(ii) relevantly provides that, on an application by the Commission, the Court may disqualify a person from managing corporations for the period that the Court considers appropriate if the person has at least twice contravened the Corporations Act or its predecessor, the Corporations Law, while an officer of a body corporate. For present purposes, Growthcorp is a body corporate. The contraventions relied upon by the Commission related to the management by Mr Platcher of Growthcorp while an undischarged bankrupt. 13 On 3 April 1997, Mr Platcher pleaded guilty to a charge that, between 16 December 1994 and 6 February 1996, he managed Growthcorp while insolvent and without the leave of the Court. That charge related to an earlier bankruptcy of Mr Platcher. The offence with which Mr Platcher was charged was conduct contrary to s 229(1) of the Corporations Law (the predecessor legislation of the Corporations Act), being an offence under s 1311(1)(a) of the Corporations Law. Mr Platcher was fined $500 in respect of the offence and placed on a good behaviour bond for two years. 14 The second contravention relied on by the Commission was alleged to have occurred during the period from 12 February 1999, when the sequestration order presently under consideration was made, to 4 December 2000. The Commission alleged that, during that period ('the alleged management period'), Mr Platcher committed an offence, or a series of offences, under s 206A of the Corporations Act and the Corporations Law. The relevant provisions of the Corporations Law and the Corporations Act are substantially to the same effect. 15 Section 206B(3) of the Corporations Act provides that an undischarged bankrupt is disqualified from managing corporations. A similar disqualification applied under s 229(1) of the Corporations Law. Since Mr Platcher's application for annulment of his bankruptcy was rejected by the primary judge, her Honour proceeded on the basis that, during the alleged management period, Mr Platcher was an undischarged bankrupt. Accordingly, until his bankruptcy was discharged by operation of law on 11 June 2002, he was disqualified from managing a corporation. 16 Section 91A(2) of the Corporations Law provided that a person manages a local corporation if the person is a director or promoter of, or is in any way concerned in or takes part in the management of, the corporation. Growthcorp is a local corporation within the meaning of s 91A(2). 17 In dealing with the question of contravention of s 91A(2) of the Corporations Law, the primary judge proceeded on the basis that the concept of management comprehends activities that involve policy and decision making, related to the business affairs of a corporation affecting the corporation as a whole or a substantial part of that corporation, to the extent that the consequences of the formation of those policies and the making of those decisions may have significant bearing on the financial standing of the corporation or the conduct of its affairs (see Commissioner for Corporate Affairs v Bracht [1989] VR 821). 18 Section 206A of the Corporations Act provides that a person who is disqualified from managing corporations commits an offence if the person:

makes or participates in making decisions that affect the whole or a substantial part of the corporation;
exercises the capacity to affect significantly the corporation's financial standing; or
communicates instructions or wishes to the directors of the corporation, knowing that the directors are accustomed to act in accordance with that person's instructions or wishes, or intending that the directors would act in accordance with the person's instructions or wishes. 19 The primary judge found that, during the alleged management period, Mr Platcher was managing Growthcorp without the leave of the Court. He was engaged in policy and decision making about the affairs of Growthcorp that had a significant bearing on the financial standing of that company and the conduct of its affairs. Her Honour found that Mr Platcher had virtually complete control of Growthcorp, its finances and business and that he gave instructions to the directors, who were accustomed to act in accordance with them, intending that they would act in accordance with them. Her Honour found that, although the directors of Growthcorp may technically have had the control of Growthcorp, the actual, ostensible and ultimate control of almost every aspect of Growthcorp rested with Mr Platcher. 20 The primary judge therefore found that Mr Platcher was, at the relevant time, an officer of Growthcorp within the meaning of that term as defined in s 9 of the Corporations Act. Accordingly, in light of the conclusion that Mr Platcher was a person disqualified from managing corporations during the alleged management period, the second contravention alleged by the Commission was established. The Court's discretion under s 206E to disqualify Mr Platcher from managing corporations for an appropriate period was therefore enlivened. 21 The primary judge found that a number of people suffered extensive losses in connection with Mr Platcher's management of Growthcorp. Her Honour found that Mr Platcher had shown indifference to the interests of those whom he embroiled in his schemes and had shown no regret or even consciousness as to the effects of his conduct. Accepting that the purpose of disqualification orders is to protect the public, rather than to punish the subject of the orders, her Honour was satisfied that a disqualification order was appropriate. 22 Her Honour concluded that Mr Platcher's offences were very serious and had been recurrent. In the absence of any discernable appreciation of the implication of his conduct or any contrition, her Honour was not convinced that any less period than 25 years would provide the protection that is the purpose of the relevant provisions. That period would effectively bar Mr Platcher from managing a corporation for life, although it would not prevent him from earning a living and from using such skills in the financial area as he may possess. 23 Her Honour had regard to the fact that Mr Platcher had previously pleaded guilty to similar conduct that had also resulted in significant losses to members of the public. Her Honour considered that Mr Platcher's attempted use of the proceeding for annulment and his failure to offer any other explanation for his conduct suggested that there was a high likelihood that he would re-offend. 24 The primary judge concluded that Mr Platcher is not a competent person to be managing corporations and that disqualification of him is justified by the very serious risk that, if he is not disqualified, he will once more cause serious losses to members of the public. Accordingly, her Honour considered that an order should be made disqualifying Mr Platcher from managing corporations for a period of 25 years.

THE APPEALS 25 Mr Platcher appeared in person. It is not surprising therefore that the grounds of appeal set out in his notices of appeal do not throw up clear issues for determination by the Full Court. The grounds do not, in some cases, make sense as a matter of syntax. 26 In addition to the notices of appeal, Mr Platcher filed fairly extensive written submissions. Once again, it was sometimes difficult to discern from the written submissions the precise grounds advanced by Mr Platcher as to why the reasoning of the primary judge and her Honour's conclusions were said to be erroneous. 27 It is convenient to deal separately with each appeal.

THE ANNULMENT PROCEEDING 28 If it be the fact that there was no debt owing to Mr Joseph at the time of the sequestration order, clearly the sequestration order ought not to have been made. There is no evidence that there were other creditors of Mr Platcher at the time of the sequestration order. Rather, the Statement of Affairs asserts that there were no unsecured creditors. Whether or not Mr Platcher applied to have the bankruptcy annulled, if these were the circumstances, the sequestration order ought not to have been made. 29 In his written submissions, Mr Platcher contended that the primary judge erred in not holding that there was evidence before the Court challenging the validity, truth and reality and the consideration for the judgment debt upon which the bankruptcy notice was based. In particular, the written submissions complain of the rejection by her Honour of an affidavit sworn by Mr Platcher. While that was not a ground of appeal, the written submissions complain that the affidavit was rejected and no ruling was given for the rejection. 30 The affidavit in question consisted of three paragraphs. First, the affidavit annexed a letter from Mr Joseph dated 4 June 2002 addressed to the Official Receiver purporting to 'confirm that I have been paid the debt owed to me by Charles Platcher and that the said Mr Platcher does not owe me any money whatsoever'. The affidavit then asserted that Mr Platcher had received a letter from his trustee in bankruptcy setting out the requirements for annulment of his bankruptcy under s 153A of the Bankruptcy Act and that he was 'in the process of organising the money in order to pay out the trustee'. 31 Thus, on its face, the affidavit had nothing to do with an application for annulment under s 153B of the Bankruptcy Act. When Mr Platcher sought to rely on that affidavit, after he had been cross-examined in the proceeding, it was the first occasion when the possibility of annulment under s 153A had been raised. Section 153A, of course, has nothing to do with annulment by the Court. Section 153A(1) provides that, if the trustee is satisfied that all the debts of the bankrupt have been paid in full, the bankruptcy is annulled by the force of s 153A(1) itself. Quite clearly, the affidavit had nothing to do with the question that was before the Court in the Annulment Proceeding. It said nothing about when Mr Joseph had been paid the amount of his debt. 32 In his written submissions, Mr Platcher also referred to the fact that creditor's petition number NG7677 of 1998, presented by Mr Joseph, was dismissed by Deputy Registrar Quinn on 27 July 1998. That, however, was not the petition upon which the sequestration order was made in respect of the estate of Mr Platcher. It may be that, because an earlier petition had been dismissed, Mr Platcher was under some misapprehension. However, there has been no suggestion that he was not served with the relevant bankruptcy notice or that he was not served with the petition upon which the sequestration order was made. Mr Platcher's misapprehension does not constitute a ground upon which the sequestration order ought not to have been made. 33 Finally, Mr Platcher relied on a ground of appeal that the primary judge 'erred in not [sic] holding that there was no evidence to [sic] a compromise of debt to the creditor Mr Paul Joseph'. That was intended to be a contention that her Honour erred in holding that there was no evidence to that effect. However, her Honour did not say that there was no evidence of a compromise of the debt owing to Mr Joseph. Rather, her Honour did not accept the evidence. 34 Mr Platcher relied upon the evidence of Mr Nehme as to the alleged compromise. Mr Nehme, in an affidavit sworn on a date not specified in it, asserted that he recalled meeting with Mr Platcher at a coffee shop in Castlereagh Street 'on or about December 1998'. He said that Mr Joseph had provided him instructions to accept the sum of $5,000 in full and final settlement of Mr Platcher's debt. He said that a few days after he had met with Mr Platcher, he was contacted by Mr Platcher and informed that he had the money. Arrangements were then made to meet with Mr Platcher later that day. Mr Nehme then said that he met with Mr Platcher and another man at the same coffee shop. He said that after that second meeting, he met Mr Joseph and 'provided him with the money I had been handed by Mr Platcher, less my costs, which was agreed between Mr Joseph and myself'. 35 On cross-examination, it appeared that Mr Nehme had no independent recollection of when the events concerning the alleged compromise occurred. He also accepted that the date of December 1998 alleged in his affidavit had been suggested to him at the time of signing the affidavit. Her Honour concluded, therefore, that Mr Nehme's evidence was not reliable evidence that the debt owing to Mr Joseph was settled prior to the making of the sequestration order. 36 Her Honour also referred to the fact that, although Mr Platcher had read and understood the relevant bankruptcy notice and creditor's petition, which included a statement of the debt owed to Mr Joseph, he did not make any mention in his statement of affairs of 10 June 1999 ('the Statement of Affairs') that the debt owing to Mr Joseph had been settled by compromise. Her Honour considered that it was not credible that Mr Platcher would not have mentioned the compromise of the debt had it in fact occurred prior to making the Statement of Affairs. True it is that there is no mention in the Statement of Affairs of any compromise of the debt owing to Mr Joseph. However, Mr Platcher complains that the Statement of Affairs unequivocally asserts that nothing was owing to Mr Joseph and that a payment in the sum of $5,000 had been made to him on 23 December 1998. 37 Thus, Item 9 of the Statement of Affairs, headed 'Unsecured Creditors', discloses no creditors. Further, Item 48 of the Statement of Affairs referred to a payment made to Mr Joseph of the sum of $5,000 on 23 December 1998. That was in Mr Platcher's response to the following question: 'List all creditors who have been paid over $1,000 or seized any of your assets in the last twelve months as a result of pressure for payment (e.g. constant creditor contact, summons, warrant of execution, sheriff, bailiff).' Clearly that question was directed to the possibility of dispositions of property that may have been preferential. Nevertheless, the reference is capable of constituting some corroboration of the assertion that a payment of $5000 was made to compromise the debt owing to Mr Joseph. 38 Item 21 called for the bankrupt's belief as to the causes of his bankruptcy or insolvency. The response in the Statement of Affairs was as follows: 'Consultancy work not profitable as nature of business related to last resort lenders or people with difficulties financially - previous bankruptcy wasn't denied, cross claim still available to me for costs.' Next, in answer to the question 'When did you begin having difficulties meeting your debts', the response given was 'No debt accepted'. Finally, in answer to the question 'Why are you sure that this is the right date?', the response was: 'Debt of this bankruptcy petition is denied - seeking annulment.' 39 On the other hand, the primary judge had before her an affidavit of debt of Mr Joseph sworn on 10 February 1999 that had been filed in support of the petition. The affidavit asserted: 'The amount of $16,320.15 is owing by the debtor, Charles Platcher, in this matter, to me pursuant to a judgment entered by the Local Court, Ryde on 31 August 1995 is still wholly due and unsatisfied.' 40 That says, unequivocally that the judgment debt was still owing as at the date of the sequestration order. However, Mr Platcher also sought to rely on another affidavit sworn by Mr Joseph on 26 April 2002. The affidavit was in the following terms: '1. I have read the affidavit of Ray Nehme filed [herein] and state that I agree with the contents thereof in so far as they apply to me. 2. I do not recall the date Mr Nehme paid me the money in full and final settlement of my claim, nor do I recall the date I advised my solicitors that the claim was settled. Regretfully I must have advised them after the date of bankruptcy.' 41 In one sense, that affidavit is equivocal as to the time when the payment was made to Mr Joseph. On the other hand, having regard to the reference that the witness regretted that he had not informed his solicitors, an inference may be open that the payment was made before the date of bankruptcy. That would require a conclusion that Mr Joseph was prepared to swear an affidavit that he had not read, simply because his solicitor prepared it. However, Mr Platcher was not permitted to read the affidavit because Mr Joseph was not available for cross-examination. 42 The circumstances in which Mr Joseph failed to attend for cross-examination are slightly unfortunate. He was present in Court on Tuesday 24 June 2002 in order to answer a subpoena to produce documents. He was told that the morning of Thursday 26 June 2002 might be an appropriate time to deal with an objection based on a claim of privilege. Mr Joseph responded that he would not be in Sydney all week and had to go away for the rest of the week. Her Honour said to Mr Joseph: 'Mr Joseph you are to be on notice that if your affidavit is going to be read in this proceeding then, … if Mr Beaumont's indicated that he will require you for cross-examination, then you will need to make yourself available. … I suggest you have a discussion with Mr Beaumont and perhaps Mr Platcher as to how to resolve this. You need to resolve it so that if your affidavit's going to be read you are available for cross-examination, and otherwise to deal.' It is not clear whether Mr Platcher understood that Mr Joseph could have been compelled to attend for cross-examination. In any event, he was not available for cross-examination and his affidavit was rejected. 43 In the course of cross-examination, it was put to Mr Platcher that there was no contemporaneous evidence of compromise and he was challenged with having produced to the Court no letter concerning the alleged compromise agreement. His response was: 'Well, I have a letter from Mr Joseph saying the debt has been paid in full, but I haven't produced it to the Court, no, you're right.' As indicated above, Mr Platcher was not permitted to tender the letter from Mr Joseph of 4 June 2002. However, the letter, while it confirmed that Mr Joseph had been paid the debt owed to him by Mr Platcher and that Mr Platcher does not owe him any money, is silent as to when the payment was made. 44 The material before the primary judge was such that it was open to her Honour to conclude that, even if Mr Joseph's debt had been paid, it was paid after the date of the sequestration order. The only matter that causes any disquiet is the failure by her Honour to address the references in the Statement of Affairs to the payment to Mr Joseph of the sum of $5,000 in December 1998 and the assertion that there was nothing owing to Mr Joseph. Given that Mr Platcher completed the Statement of Affairs himself in his own handwriting, it would not be surprising that he did not use the word 'compromise'. 45 Certainly, as her Honour observed, Mr Platcher had read and understood the bankruptcy notice and creditor's petition, which included the statement of the debt owed. On the other hand, he did assert that he believed that there was no longer a petition outstanding at the time when he had his negotiations with Mr Nehme. While that of itself may not be a ground for annulling the bankruptcy, it would explain why he did not bother to obtain contemporaneous documentary evidence of the compromise from Mr Nehme and Mr Joseph. 46 It may not be fair to say that it is not credible that Mr Platcher would not have mentioned a compromise of the debt had it in fact occurred prior to making the Statement of Affairs. The Statement of Affairs unequivocally asserts that there was nothing owing to Mr Joseph. The reference to the nature of the consultancy work and its not being profitable may well be a reference explaining his earlier bankruptcy. The answers are consistent with a belief by Mr Platcher that he had discharged his debt to Mr Joseph prior to the making of the sequestration order. 47 Her Honour's conclusion that there had been no compromise appears to have been based, at least substantially, on the failure of Mr Platcher to mention the payment to Mr Joseph in the Statement of Affairs. Having regard to the circumstances of the payment as alleged by Mr Platcher and by Mr Nehme, the absence of contemporaneous written evidence is equivocal. Mr Platcher does not appear to have been cross-examined on the answer to Item 48. If the reason for rejecting the evidence of Mr Nehme, together with the sworn evidence of Mr Platcher, was the failure to mention the compromise in the Statement of Affairs, her Honour may have reached that conclusion without regard to the whole of that document before drawing an adverse inference from the failure to refer to a compromise. No mention is made of Item 48, although her Honour referred expressly to the answer to Item 21 given by Mr Platcher, thus indicating that her Honour's attention was directed to that part of the Statement of Affairs. 48 Even if a conclusion can be drawn that, on the balance of probabilities, the sum of $5000 had been paid to Mr Joseph in December 1998, the question remains as to whether that payment discharged the debt, such that it could be said that, as at the date of the sequestration order, there was no debt owing to Mr Joseph. There is no evidence of a dispute as to the debt, such that a payment of part of $5000 could be said to amount to a compromise of some dispute. In the absence of other consideration passing from Mr Platcher, part payment of the debt would not discharge the debt. It would follow that, as at the date of the sequestration order, in excess of $10,000 of the judgment debt was still owing. On that basis, there would be no ground for saying that the sequestration order ought not to have been made. 49 Her Honour concluded that, even if satisfied that the sequestration order ought not to have been made, she would not have exercised the discretion to annul the bankruptcy because of Mr Platcher's conduct in relation to the management of Growthcorp. However, a question may arise as to whether that conduct is relevant to the exercise of the discretion that arises under s 153B of the Bankruptcy Act. 50 The Commission contends that, whether or not Mr Platcher was entitled to have the bankruptcy annulled, he was a bankrupt from 12 February 1999. He knew that a sequestration order had been made. Nevertheless, if the findings in the Disqualification Proceeding stand, Mr Platcher continued to be involved in the management of Growthcorp knowing that he was a bankrupt and without making any application or taking any steps to have the bankruptcy annulled. 51 The fact that Mr Platcher continued to manage a corporation while a bankrupt who was entitled to have his bankruptcy annulled is hardly a basis for exercising any discretion against him in determining whether or not to annul the bankruptcy. There was no suggestion that Mr Platcher failed to discharge the obligations imposed on him by the Bankruptcy Act in consequence of his bankruptcy. His conduct in relation to matters outside the purview of the Bankruptcy Act would not be a relevant consideration for the exercise of discretion to annul a bankruptcy that ought not to have occurred. 52 However, in the circumstances, the question does not arise. No basis has been established for reaching a different conclusion from the primary judge as to whether the sequestration ought not to be made. Accordingly, the first appeal should be dismissed with costs.

THE DISQUALIFICATION PROCEEDING 53 Apart from the proposed further ground of appeal referred to below, Mr Platcher's grounds of appeal were that the primary judge erred in holding that:

Mr Platcher's role in Growthcorp amounted to management under s 206A of the Corporations Act;
the evidence amounted to 'conduct' by Mr Platcher of management which contravened s 206A of the Corporations Act;
the evidence of Mr John Grego supported comments made by other witnesses that Mr Platcher was 'in charge' of Growthcorp which amounted to management of Growthcorp;
there was no evidence that the directors ever gave instructions to Mr Platcher or questioned his decisions or authority to make them;
all the witnesses gave an honest and straightforward account of their dealings with Mr Platcher.

Those grounds of appeal all relate to the issue of whether or not Mr Platcher was engaged in the management of Growthcorp during the alleged management period. 54 The primary judge dealt with the evidence as to management of Growthcorp by Mr Platcher in the following terms (at [64]-[65]): 'None of the [Commission] witnesses was shaken to any material extent on cross-examination and Mr Platcher did not bring any contradictory evidence. All of the witnesses struck me as attempting to give an honest and straightforward account of their dealings with Growthcorp and with Mr Platcher. In the circumstances I have no reason not to accept their evidence. The evidence that I have accepted regarding Mr Platcher's conduct in relation to Growthcorp clearly indicates to my mind that during the alleged management period Mr Platcher was managing a corporation without the leave of the Court.' 55 The evidence accepted by her Honour was given by the following witnesses:

Nathan Dennis James Morgan, who responded to an invitation from Growthcorp to invest in a hotel in Townsville and who worked for Growthcorp from March 1999 to February 2000.
Michael Peter Johnston, an auto electrician, who had known Mr Morgan for more than 15 years and who was introduced by Mr Morgan to Mr Platcher in November 1999. Mr Morgan invested funds in accordance with advice given by Mr Platcher.
Francis James Garvin, who operated a publishing business and who approached Mr Platcher in September 1999 for assistance in raising finance.
Paul Henri Arthur Veron, the managing director of Mortgage Partners Pty Ltd, a company that provides a range of mortgage products and who was approached by Mr Platcher in July 1999 to assist in raising finance.
Philip Alan Rennie, a registered valuer who was contacted by Mr Platcher in February or March 1999 with a view to providing a valuation.
Michael James Mortimer, a senior investigator with the enforcement branch of the Commission.
Michael Pestano, the general manager of Compu-NET Services Pty Ltd, who let premises in North Sydney to Growthcorp.
Max McDonald, an employee of ONI Collections who arranged the lease to Growthcorp of the North Sydney premises.
Dr Peng Tin Chia, who was assisted by Mr Platcher in mid 1997 in obtaining finance and who became a director of Growthcorp and a signatory of its bank account.
John Grego, an accountant who was introduced to Mr Platcher as a finance broker in 1998 and who provided accounting services to Growthcorp. 56 Mr Platcher's written submissions contained a detailed analysis of the evidence of those witnesses. Apart from Mr Grego, the evidence of the witnesses was given, in the first instance, by affidavit. Certain of the material in the affidavits would, if objected to, have been inadmissible. However, it appears that there was no objection to the material. That is understandable, having regard to the fact that Mr Platcher is not a qualified legal practitioner. Nevertheless, it is disconcerting that the Commission sought to rely on affidavits in a form that was inadmissible. While there may a question as to whether there is any error in giving weight to evidence that, although inadmissible if it was the subject of objection, was not objected to, that was not a ground of appeal. Of course, if objection had been taken, the Commission may have been in a position to adduce admissible evidence. 57 It is necessary to deal separately with the challenged evidence of the witnesses.

Nathan Dennis James Morgan 58 The primary judge observed that Mr Morgan was extensively cross-examined by Mr Platcher but was not shaken on the essentials of his evidence. He impressed her Honour as a reliable witness. Her Honour concluded that Mr Morgan's account of Mr Platcher's role in Growthcorp and the transactions in which it was involved was consistent with Mr Platcher being actively involved in the management of Growthcorp and making decisions that affected the whole, or at least a substantial part, of Growthcorp's business. 59 Mr Platcher's written submissions dealt extensively with inconsistencies in Mr Morgan's evidence. For example, in his affidavit, Mr Morgan said: '45. Platcher, Pettenon and I then travelled by car to the offices of Penryn Parker Solicitors at North Sydney. Pettenon and I were introduced to a solicitor by the name of Rod Smith who showed us the contract for the purchase of the house at North Curl Curl.' However, in the course of cross-examination of Mr Morgan by Mr Platcher, the following exchange occurred:

Platcher: 'The solicitor at Penryn Parker … Rod Smith, did not tell you anything about the transaction that you were signing apart from what you just tell me now?' Morgan: 'No, because I never dealt with a gentleman called Rod Smith.' 60 Mr Morgan said in the course of cross-examination that he was helped in putting his affidavit together by 'a gentleman called Michael Mortimer'. Mr Mortimer was an investigator with the Commission. The inconsistency between Mr Morgan's oral evidence and his affidavit highlights the deficiencies of written evidence in chief as to disputed matters. Even where a lawyer taking instructions for an affidavit does so with the greatest care, the almost inevitable consequence will be that the language employed in the affidavit is the language of the lawyer, at least in a substantial part, rather than the language of the witness. 61 The discrepancies and inconsistencies to be found in Mr Morgan's evidence give rise to some disquiet as to its reliability. However, notwithstanding that the primary judge did not have the advantage of seeing Mr Morgan give his evidence in chief in his own words in admissible form, she had the advantage of seeing him cross-examined extensively by Mr Platcher. Her Honour formed a view as to the 'essentials' of Mr Morgan's evidence. Mr Platcher has not demonstrated that there is a basis for the Full Court to interfere with the assessment of Mr Morgan made by the primary judge.

Michael Peter Johnston 62 The primary judge concluded that Mr Johnston's evidence was consistent with Mr Morgan's account of the way in which the business of Growthcorp was managed. Her Honour observed that Mr Johnston's answers to questions in cross-examination by Mr Platcher indicated that his commercial relationship with Mr Platcher was complex and that he may not have taken sufficient care of his own interests. As her Honour observed, however, that was not relevant to the central issue of Mr Platcher's role in Growthcorp. 63 Mr Platcher submitted that Mr Johnston did not provide much evidence in relation to Mr Platcher's management of Growthcorp but provided evidence that he received instructions from Mr Platcher. Mr Platcher drew attention to inconsistency between the evidence of Mr Johnston and Mr Veron. Nevertheless, the material to which Mr Platcher referred does not constitute a basis for reaching a conclusion concerning the credibility of Mr Johnston's evidence different from that reached by the primary judge.

Francis James Garvin 64 The primary judge found that Mr Garvin's evidence, which was confirmed on cross-examination, pointed strongly to Mr Platcher being more than the consultant he claimed to have been in relation to Growthcorp. Mr Platcher, however, asserted that Mr Garvin's evidence was evasive and inconsistent. 65 Mr Garvin said in his affidavit that, in a conversation with Mr Platcher, Mr Platcher said, in response to the question 'What is your relationship to Growthcorp' that he works 'as a consultant to Growthcorp'. Mr Garvin gave evidence of discussions that he had with Mr Platcher concerning the proposals for a loan to be made by Mr Garvin to Growthcorp in the sum of $60,000. Mr Garvin proposed to arrange for that sum to be provided to Growthcorp out of monies coming to him on the settlement of a property sale. He arranged for Mr Platcher to attend settlement and to receive a cheque for Growthcorp in the sum of $60,000, which was to be given to Mr Garvin pending the drawing up of the loan documentation pursuant to which he would lend that sum to Growthcorp. However, when Mr Garvin went to collect the cheque, Mr Platcher told him that he had taken it and would pay it back the following week with interest. He described the attempts he made to recover the $60,000. Her Honour considered that Mr Garvin's account demonstrated that Mr Platcher was more than a mere consultant. 66 Her Honour recorded evidence given by Mr Garvin in his affidavit concerning his understanding of Mr Platcher's position. The Commission relied on two affidavits by Mr Garvin. In the second one, Mr Garvin 'substituted' an amended paragraph for a paragraph in his earlier affidavit. 67 In par 15 of his first affidavit, Mr Garvin deposed to a conversation that he had had with Mr Platcher on 12 October 1999. On that occasion, Mr Platcher had signed a loan facility letter that Mr Garvin had prepared and brought with him to Mr Platcher's officer. In par 47 of the first affidavit he said as follows: '47. Later in the day on 6 April 2000 I telephoned Platcher's Crown Street office number and spoke to Grego, who answered the phone. He and I had a conversation to the following effect: I said: "John, is Growthcorp solvent? Why was Growthcorp struggling to repay my money? Who owns Growthcorp?" Grego said: "Charles Platcher is Growthcorp. There is no one else involved." I was surprised by this statement because I was under the impression that Growthcorp was an independent property development company to which Platcher was a consultant.' 68 In the 'substituted' paragraph, the last sentence read as follows: 'I was surprised by this statement because Grego had previously maintained that Growthcorp was an independent property development company to which Platcher was a consultant. I had formed the view that Platcher acted as a manager of Growthcorp subsequent to Platcher signing the loan facility letter in October 1999, referred to in paragraph (15) of my affidavit.' 69 The evidence just described highlights the dangers of conducting litigation of this kind on the basis of affidavits prepared internally by the Commission's legal advisers. However, while that aspect may give rise to disquiet, it does not constitute a basis for interfering with her Honour's acceptance of Mr Garvin's evidence.

Paul Henri Arthur Veron 70 Mr Veron gave evidence that, in July 1999, he received a telephone call from Mr Platcher, who said that a director of Growthcorp needed finance for an investment in an orange juice company. Mr Veron subsequently met Mr Platcher in his office and Mr Platcher informed him of various projects being undertaken by Growthcorp and said that the loan was required by Mr Luigi Pettenon, who was a director of Growthcorp during part of the alleged management period. The primary judge accepted evidence from Mr Veron giving details of other applications for loans that Mr Platcher made to him. In all of the negotiations, written instructions and requests were exchanged by facsimile with Growthcorp. A number of the facsimiles were signed by Mr Platcher. The primary judge accepted Mr Veron's evidence that all his discussions and communications concerning the Growthcorp matters were exclusively with Mr Platcher. 71 Mr Platcher did not attempt to impugn Mr Veron's credibility but suggested that his evidence was equivocal since Mr Veron knew that Mr Platcher was not a director of Growthcorp. Nevertheless, her Honour was entitled to have regard to Mr Veron's evidence in assessing the extent to which Mr Platcher was involved in the management of Growthcorp.

Philip Alan Rennie 72 Mr Rennie gave evidence that, apart from a brief conversation with Mr Grego, all of his discussions and dealings with Growthcorp were with Mr Platcher. Mr Rennie also confirmed that he received instructions from Dr Chia in relation to a valuation and conceded that all his dealings with Mr Platcher were in relation to the one valuation. In effect, Mr Platcher did not seek to impugn the credibility of Mr Rennie but rather submitted that it was equivocal. The primary judge was nevertheless entitled to have regard to it.

Michael James Mortimer 73 Mr Mortimer gave evidence about telephone conversations he had with Mr Platcher in which, on a number of occasions, Mr Platcher requested that Growthcorp documents that had been produced to the Commission be returned to him because he had to do some further work for some of the clients whose files were held by the Commission. He also said that he was organising for the preparation of Growthcorp's outstanding annual returns. That was material that her Honour could fairly take into account in assessing the extent of Mr Platcher's involvement in the management of Growthcorp.

Michael Pestano 74 The primary judge found that, over a period of five or six years, Mr Platcher told Mr Pestano of various business deals and opportunities and in doing so referred to Growthcorp. In July 2000, Mr Platcher inquired of Mr Pestano whether he had office space for a lease in his office at Walker Street in North Sydney. Subsequently, Growthcorp moved into the office space and occupied two rooms in Mr Pestano's premises in Walker Street, North Sydney until February 2001. 75 Mr Pestano said that he noticed that Mr Platcher attended the offices regularly and that a number of people attended the office asking to see Mr Platcher. On several occasions, Mr Pestano raised with Mr Platcher the question of unpaid rent. Mr Platcher's usual response was that the money would be available soon. 76 Mr Platcher's submissions in relation to Mr Pestano's evidence was that he was vague as to the time that he spent at the office. While it is true, as Mr Platcher submitted, that Mr Pestano's evidence did not constitute direct evidence on Mr Platcher's management role in Growthcorp, his evidence was relevant to the ultimate assessment that had to be made by the primary judge.

Max McDonald 77 Her Honour found that Mr McDonald corroborated Mr Pestano's evidence concerning the events that led to Growthcorp's occupying part of the office space in Walker Street, North Sydney. Mr McDonald prepared a form of commercial lease agreement and Mr Platcher instructed him that the lessee was to be Growthcorp. Her Honour recorded that the lease was signed by Mr Pettenon and Mr McDonald witnessed his signature. 78 However, it was to Mr Platcher that Mr McDonald went when he was asked to chase up the rent payable by Growthcorp. Mr Platcher's response was another assurance that payment would be forthcoming shortly. On one occasion, Mr Platcher invited Mr McDonald to go with him to get the money. Mr McDonald went with Mr Platcher and Mr Pettenon to Darlinghurst and waited in the car while they went somewhere and returned with $300 in cash. 79 Mr McDonald stated that during the period that Growthcorp occupied the North Sydney premises, Mr Platcher and Mr Pettenon attended the office on most days. He overheard Mr Platcher giving instructions to a Ms Gallagher who also attended the office on most days. He said that Mr Platcher was the person whom Growthcorp's clients asked to see. 80 Mr Platcher drew attention to alleged inconsistencies between the evidence of Mr Pestano and Mr McDonald concerning the outstanding rent. Mr McDonald also accepted that it was not easy to hear what was being said in the office occupied by Growthcorp. Nevertheless, he gave evidence upon which the primary judge could rely in making her assessment as to Mr Platcher's involvement in the management of Growthcorp.

Dr Peng Tin Chia 81 Mr Platcher first became involved with Dr Chia in mid 1997, at a time when he was finding it very difficult to obtain finance. Her Honour found that some weeks after they met Mr Platcher asked Dr Chia if he would agree to be a director of Growthcorp and he thereafter became a signatory on Growthcorp's bank account and wrote cheques at Mr Platcher's request. His involvement with Growthcorp was quite minimal. Her Honour found that, on Mr Platcher's instructions, Dr Chia prepared and signed some letters and other documents. Following the appointment of Mr Pettenon as a director in January 1999, Dr Chia had almost no involvement in Growthcorp and resigned as a director in March 2000. 82 Mr Platcher drew attention to evidence from Dr Chia that he had given instructions to Mr Rennie for a valuation and had given instructions to Mr Mal Messingham for another valuation. Mr Platcher also drew attention to evidence of Dr Chia inconsistent with evidence given by Mr Morgan concerning receipt of a valuation from Mr Messingham. Mr Platcher asserted that Dr Chia's evidence was supportive of his own evidence and did not lead to the conclusion that Mr Platcher had a management role in Growthcorp. 83 Nevertheless, the findings made by the primary judge concerning Dr Chia are capable of supporting her Honour's conclusion.

John Grego 84 Her Honour found that Mr Grego was introduced to Mr Platcher as a finance broker sometime in 1998. In late 1998, Mr Platcher asked Mr Grego to look at some figures in relation to the proposed purchase of an orange juice factory by Growthcorp. Mr Grego said that Mr Platcher had a few people helping him in the office and said expressly that Mr Morgan took instructions from Mr Platcher. Mr Grego also said that Mr Pettenon did not regularly attend the Growthcorp office until early 2000, when he started attending on a daily basis. 85 Mr Grego said that it was Mr Platcher who told him the amount for which cheques should be made out. Whenever he was instructed to prepare cheques for Mr Platcher, he did not seek to confirm Mr Platcher's instructions with the directors. Mr Grego said that, from what he witnessed, Mr Platcher seemed to be in charge of anything to do with finance or any quasi legal matters and that he was the negotiator for Growthcorp. Mr Grego prepared tax returns for Growthcorp and give them to Mr Platcher and Mr Pettenon. 86 Her Honour considered that Mr Grego's evidence supported the comments made by other witnesses that Mr Platcher was the person in charge of Growthcorp. He said that, for much of the time under consideration, he did the bulk of the typing with respect to correspondence from Growthcorp and that his instructions were received from Mr Platcher. While he typed numerous letters for Mr Pettenon, they were personal letters not related to Growthcorp. Mr Grego did not recall any occasion when a letter dictated or instructed by Mr Platcher was authorised by Mr Pettenon. 87 Mr Grego became a signatory to two Commonwealth Bank accounts following a discussion with Mr Platcher and Dr Chia in late November 1998. Her Honour observed that examination of the cheque butts for those accounts revealed that a number of cheques were signed in blank and given to Mr Platcher to use for payment of business expenses. 88 Mr Platcher drew attention to Mr Grego's evidence that Mr Pettenon played an active role in Growthcorp's office from the time when he attended on a regular basis. Mr Grego also agreed that Mr Platcher did not go ahead and perform functions without discussing the matter with the directors of Growthcorp. He agreed that Mr Platcher was asked from time to time by Mr Pettenon to elaborate on what was happening in relation to matters that had been conducted by Growthcorp. Mr Pettenon would discuss with Mr Platcher the finance applications and what Growthcorp had to do for the day-to-day operations. Mr Grego also observed Mr Pettenon checking through finance applications prepared by Mr Platcher. Mr Grego confirmed that Mr Pettenon did not have a great command of English and left negotiations to a Mr Platcher since he did not want to disrupt negotiations. Mr Grego agreed that Mr Pettenon played an active role in relation to a transaction at Noosa and signed certain contracts on behalf of Growthcorp. 89 Mr Platcher asserted that the evidence given by Mr Grego was contradictory to that of other witnesses and should be preferred to the other witnesses. He submitted that Mr Grego's evidence confirmed that both Dr Chia and Mr Pettenon provided the policy and direction of Growthcorp and that Mr Platcher's functions were that of a negotiator, whose skills were utilised by the directors to procure income for Growthcorp. 90 However, the weight to be given to Mr Grego's evidence was a matter for the primary judge. There is no basis for concluding that her Honour erred in the approach she took to the assessment of Mr Grego's evidence.

Conclusion on Original Grounds 91 Her Honour concluded that none of the witnesses called by the Commission was shaken to any material extent on cross-examination and Mr Platcher did not bring any contradictory evidence. Her Honour considered that all the witnesses were attempting to give an honest and straightforward account of their dealings with Growthcorp and with Mr Platcher. Her Honour therefore considered that there was no reason not to accept their evidence. 92 On the material before the primary judge, though it may not have been admissible if proper objection had been taken, it was open to her Honour to conclude that Mr Platcher was involved in the management of Growthcorp at a level involving direction and policy matters such as to constitute involvement in the management of Growthcorp. Despite the disquiet engendered by some of the evidence and the fact that Mr Platcher was unrepresented, there was material capable of supporting the conclusions reached by her Honour. Mr Platcher has not demonstrated a basis for reaching a different conclusion from the primary judge on the evidence before her Honour.

Further Ground of Appeal 93 In the course of the hearing of the appeal, Mr Platcher sought leave to add a further ground of appeal. The ground is not felicitously expressed, but is to the effect that the primary judge erred in not admitting as evidence the transcript of an examination of Mr Pettenon under s 19 of the Australian Securities and Investments Commission Act 2001 (Cth). 94 The Full Court adjourned the hearing of the appeal to allow Mr Platcher the opportunity to prepare further material demonstrating all the circumstances relating to the rejection of Mr Pettenon's evidence, and to include in the appeal papers the transcript that was said to have been wrongly excluded. Mr Platcher was permitted to give oral evidence in support of his contention that he believed that the primary judge had ruled that the s 19 statement could not be tendered, and that he would have tendered it had he known that that course was open to him. 95 In the hearing before the primary judge, Mr Platcher sought to read an affidavit of Mr Pettenon sworn on 7 February 2002. The affidavit was brief and said as follows: '1. I am a director of Growthcorp Australia Pty. Ltd., having been appointed in January 1999. 2. I have given to officers of the A.S.I.C. a lengthy recorded interview in about August 2001 regarding the matter of Charles Platcher. 3. I am aware of the allegations made against Charles Platcher that he acted as Director/Manager of Growthcorp Australia Pty. Ltd. 4. In all the time I have been a director of Growthcorp Australia Pty. Ltd., Charles Platcher acted as an employed consultant to the company and I instructed him in that capacity. 5. All actions, statements and representations made by Charles Platcher on behalf of Growthcorp were done or made by him with my full authority and instruction. I authorised him to act in accordance with my instructions and in his discretion. 6. I state that the matters stated in my interview with the A.S.I.C. are true and correct.' 96 Counsel for the Commission objected to pars 4 and 5, saying, inter alia, as follows: 'There was a timetable made out a long time ago for the filing of this evidence. I don't think it is something that I can deal with on the run if it is expanded on because if it is expanded on it will be expanded on at great length and I don't think I should be surprised in that way. These really are, it is not a technical objection, these really are rolled up conclusions where Mr Pettenon could have but has not given the sort of detailed statement that should have been given if he was to be properly used as a witness.' 97 The primary judge asked counsel for the Commission whether, in addition to pressing for the exclusion of pars 4 and 5, he would also object to Mr Platcher 'being allowed to ask those questions at this stage in direct examination'. Counsel for the Commission responded: 'To get the particulars would involve me being surprised by detailed evidence contrary to the Court's directions.' 98 The primary judge then said that she would not allow pars 4 and 5 to be read and directed the following remarks to Mr Platcher: 'It is a matter then for you as to whether you still - with paragraphs 4 and 5 taken out of the affidavit, it is a matter for you to decide whether on that basis you still wish to call Mr Pettenon.' 99 Mr Platcher responded by saying that Mr Pettenon 'is a vital witness to my side of things, especially on the management of Growthcorp'. 100 The following exchange then occurred: Mr Platcher: 'Will then I be allowed to go the evidence provided by the [Commission] and examine Mr Pettenon on that if they are providing that interview as …' Primary Judge: 'Well, I don't understand that they are, is that the point?…[The Commission] is not putting forward the interview with [Mr] Pettenon into evidence, they are not intending to rely on that so therefore you have no right to cross-examine him on that point.' Mr Platcher: 'Your Honour, just in a nutshell, if you wouldn't mind, what does it all mean as far as Mr Pettenon is concerned? Would he be able to - he can't give evidence in other words?' Primary Judge: 'No, the evidence that - he could be cross-examined but the evidence would be the evidence in his affidavit with paragraphs 4 and 5 deleted. I will let you think about that Mr Platcher. … You may decide that it is not in your interest to expose him to cross-examination on that basis and you may prefer not to read that affidavit but that is something, obviously, that I can't advise you on.' It seems clear from that exchange that Mr Platcher was under some misapprehension as to the ruling that was being made by the primary judge. 101 Quite correctly, the primary judge rejected pars 4 and 5 of Mr Pettenon's affidavit. Nevertheless, the affidavit by par 6 still affirmed the truth and accuracy of the evidence given by Mr Pettenon in the course of the s 19 examination. As will be noted, the transcript of that evidence was potentially admissible in the circumstances. However, Mr Platcher's unchallenged evidence to this Court was that he believed that her Honour had ruled that it was not to be admitted because of the lateness of its tender. 102 In the conduct of the Disqualification Proceeding, while that proceeding was still in the Supreme Court, the Commission had filed and served an affidavit by Mr Pettenon that also proved the transcript of Mr Pettenon's evidence in his s 19 examination. Thus, that material was available to the Commission, and had been available to it for some time. However, it is clear that, at some stage, the Commission reserved to itself the option of relying on the evidence of Mr Pettenon but, later, presumably because a view was taken that it did not assist its case, it decided not to rely on that evidence. 103 In these circumstances Mr Platcher submits that the appeal should be allowed because he misunderstood what the primary judge was saying in relation to the evidence of Mr Pettenon and as a consequence he was prevented from presenting vital evidence in his case because the evidence of Mr Pettenon, which was not tendered by Mr Platcher may have resulted in a decision in his favour. 104 The applicable principles are not in dispute. The Full Court in Minogue v HREOC (1999) 84 FCR 438 at [27]-[29] and [33], considered the duty of the Court to an unrepresented litigant in these terms: '27 In Neil v Nott (1994) 68 ALJR 509; 121 ALR 148, the High Court considered whether the trial judge's exercise of discretion to refuse an extension of time for lodging an application for maintenance and support under the Administration and Probate Act 1958 (Vic). The Court observed (at 150) that a

"frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy".

In Abram v Bank of New Zealand (1996) ATPR 42340 at 42347, a Full Federal Court, faced with an unrepresented litigant's claim that the trial judge had not given him appropriate assistance to present his case, made this comment:

"What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case."

We respectfully agree with this observation. Because the duty of the judge varies according to the factors identified by the Full Court in Abram, the duty to assist an unrepresented accused in criminal proceedings is likely to be more extensive than that imposed on a judge hearing civil proceedings in which one or more of the parties are not legally represented: cf MacPherson v The Queen (1981) 147 CLR 512; D A Ipp, "Judicial Intervention in the Trial Process" (1995) 69 Australian Law Journal 365 at 369-370.

28 The general principles governing the role of the judge in civil proceedings involving an unrepresented litigant have been stated in Rajski v Scitec Corporation Pty Ltd (unreported, Court of Appeal, NSW, Full Court, No CA 146 of 1986, 16 June 1986). Samuels JA said this (at 14):

"In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent."

"Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done."

These comments have been referred to with approval in subsequent cases: see Johnson v Johnson (1997) 139 FLR 384 at 406 (Fam Ct/FC) (and cases cited there); Morton v Vouris (1996) 21 ACSR 497 at 513-514, per Sackville J. There is nothing in Neil v Nott inconsistent with what was said in Rajski v Scitec Corporation.

29 A trial judge often faces a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial; Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6.

… 33 In any event, it is difficult to see what further steps the primary judge could have taken, in the circumstances of the present case, to ensure that the appellant received a fair trial. He gave leave to the Chairman of the ICJ to appear as amicus curiae and he accorded the appellant every opportunity to put his arguments. The appellant's submissions appear to assume that it was the primary judge's responsibility to formulate and conduct the appellant's case for him. That, however, is not a role the primary judge was entitled, let alone obliged, to perform.' (Emphasis added) 105 The above extract emphasises that, while in some circumstances it may be appropriate that some assistance should be given to an unrepresented litigant, the Court must ensure that an advantage is not conferred on the unrepresented party. What is appropriate in each case depends on particular circumstances. The Court observed in Minogue at [32] that the unrepresented party had presented the appeal in a way that led the Court to conclude that he was intelligent, thoughtful and well able to raise the points on which he wished to rely. This was a matter that the Court clearly considered significant. The Court held, in that case, that the primary Judge had not failed to perform his duty. 106 Having regard to these principles, the question posed in the present case is whether the primary Judge failed to perform her duty to the appellant to provide a fair and just hearing, so as to give rise to an appealable error. It is not sufficient to establish that Mr Platcher misinterpreted the ruling and observations of her Honour in relation to the affidavit of Mr Pettenon. In our view, her Honour did not err. 107 Before this Court Mr Platcher presented as an astute, intelligent businessman with considerable commercial expertise and experience and with some legal training, who was able to present his case in a comprehensive logical and careful manner. 108 The paragraphs in the affidavit of Mr Pettenon, which Mr Platcher sought to read, were correctly rejected by her Honour. However, the sixth paragraph was not rejected. This is the paragraph that verifies the correctness of the transcript of the interview by Mr Pettenon. In the interchange that took place between her Honour and Mr Platcher, we do not consider that her Honour fell into error. Her Honour properly pointed out that the Commission was not putting the transcript into evidence and correctly pointed out that therefore Mr Platcher was not entitled to cross-examine Mr Pettenon on that point, referring to the transcript. 109 When Mr Platcher sought guidance from her Honour, she expressed disagreement with the statement of Mr Platcher when he asked whether the ruling meant that Mr Pettenon would not be able to, or could not, give evidence. Her Honour answered this question in the negative and informed him that Mr Pettenon could be cross-examined but that his evidence would be the affidavit without the two rejected paragraphs 4 and 5. This statement reasonably conveyed that paragraph 6, which affirmed the correctness of Mr Pettenon's statements in his interview, remained in the affidavit and that Mr Pettenon could be cross-examined on it. Her Honour said it was a decision for Mr Platcher as to whether to read the affidavit after pointing out that he may not want to have Mr Pettenon cross-examined on it. Mr Platcher then decided not to read the affidavit. 110 In our view, her Honour made it clear that she could not advise Mr Platcher on his position with respect to the affidavit and that it was a matter for him to decide whether to read it in the light of her statement as to exposure to cross-examination. In stating that, her Honour was clearly endeavouring to hold the balance between the parties and not to assume the role of what could be seen to be that of a partial adviser to the appellant. 111 In deciding whether to advise an unrepresented party and to what extent intervention is necessary, it should be kept in mind that what may be appropriate by way of judicial assistance will usually involve fine questions of judgment as to the circumstances of the party in the context of the primary hearing in which a particular issue arises. This is difficult, and often impossible, for an appellate court to appreciate and evaluate fully. 112 Any misunderstanding of his position that Mr Platcher may have entertained was not as a consequence of her Honour's statements or conduct, but rather was a consequence of his own unwarranted interpretation of her Honour's response. In our view, there is nothing in her Honour's conduct of the hearing or in statements made by her in relation to the question of Mr Pettenon's evidence in respect of which it could be said that she had breached any duty to the unrepresented party as referred to in the reasons for decision and the authorities referred to in Minogue. The rulings of her Honour were correct as were the observations that she made in relation to the proposed evidence of Mr Pettenon.

CONCLUSION: 113 For the above reasons, both appeals should be dismissed with costs. I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin and Emmett.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

REASONS FOR JUDGMENT WEINBERG J: 114 I have had the considerable advantage of reading, in draft, the joint judgment of Tamberlin and Emmett JJ. I agree with all that their Honours have said regarding the appeal concerning "the Annulment Proceeding". I also agree, for the reasons given by their Honours, that none of "the Original Grounds" for challenging the primary judge's finding in "the Disqualification Proceeding" has been made out. 115 I am unable, however, to agree with their Honours' conclusion that "the Further Ground of Appeal" should be dismissed. In my opinion, that ground has been made out. Accordingly, I would allow the appeal in relation to "the Disqualification Proceeding". 116 The background to "the Further Ground of Appeal" may be briefly summarised. In the course of the hearing of the appeal before this Court, a question arose as to the admissibility or otherwise of Mr Pettenon's evidence. As a consequence, Mr Platcher sought leave to add a further ground. As with the majority of Mr Platcher's written submissions, that ground was not felicitously expressed. However, that ground is to the effect that the primary judge erred in not admitting as evidence the transcript of an examination of Mr Pettenon under s 19 of the Australian Securities and Investments Commission Act 2001 (Cth). 117 During the hearing before the primary judge, immediately after the Commission's case had concluded, Mr Platcher sought to read an affidavit sworn by Mr Pettenon. The affidavit had been sworn on 7 February 2002, but had not been provided to Mr Beaumont, counsel for the Commission, until 26 June 2002. In the affidavit Mr Pettenon said as follows: "1. I am a director of Growthcorp Australia Pty. Ltd., having been appointed in January 1999.

I have given to officers of the A.S.I.C. a lengthy recorded interview in about August 2001 regarding the matter of Charles Platcher.

I am aware of the allegations made against Charles Platcher that he acted as Director/Manager of Growthcorp Australia Pty. Ltd.

In all the time I have been a director of Growthcorp Australia Pty. Ltd., Charles Platcher acted as an employed consultant to the company and I instructed him in that capacity.

All actions, statements and representations made by Charles Platcher on behalf of Growthcorp were done or made by him with my full authority and instruction. I authorised him to act in accordance with my instructions and in his discretion.

I state that the matters stated in my interview with the A.S.I.C. are true and correct." 118 The transcript of the proceeding below records that Mr Beaumont at once objected to pars 4 and 5 of the affidavit. He described these paragraphs as containing "important evidence", thereby acknowledging what was, in any event, obvious. He complained of the late production of the affidavit, saying, inter alia, as follows: "There was a timetable made out a long time ago for the filing of this evidence. I don't think it is something that I can deal with on the run if it is expanded on because if it is expanded on it will be expanded on at great length and I don't think I should be surprised in that way. These really are, it is not a technical objection, these really are rolled up conclusions where Mr Pettenon could have but has not given the sort of detailed statement that should have been given if he was to be properly used as a witness." 119 The primary judge asked Mr Beaumont whether, in addition to pressing for the exclusion of pars 4 and 5, he would also object to Mr Platcher 'being allowed to ask those questions at this stage in direct examination'. Mr Beaumont replied: ''Well, yes I would, your Honour, because as I say globally they are inadmissible. To get the particulars would involve me being surprised by detailed evidence contrary to the Court's directions." 120 The primary judge then indicated that she would not allow pars 4 and 5 to be read. Having so ruled, she directed the following remarks to Mr Platcher: "It is a matter then for you as to whether you still - with paragraphs 4 and 5 taken out of the affidavit, it is a matter for you to decide whether on that basis you still wish to call Mr Pettenon." 121 Mr Platcher replied that he did indeed wish to call Mr Pettenon. He described him as '…a vital witness to my side of things… especially on the management of Growthcorp'. 122 The primary judge then said: 'Yes, I understand that but given the ruling that I have just made, the substance of his evidence is very slight. It is really paragraphs 1, 2, 3 and 6. It is a matter for you whether…' 123 In my opinion, what her Honour was endeavouring to convey to Mr Platcher by this last statement was that he could tender the evidence contained in pars 1, 2, 3 and 6 of the affidavit, but that this evidence would have little probative value. She had earlier indicated that pars 4 and 5 would be excluded, both because of the form in which they were expressed, and also because of Mr Beaumont's claim that he had been taken by surprise by the late provision of the affidavit. 124 Mr Platcher then returned to the question whether Mr Pettenon's evidence could be received in some other way. The following discussion ensued: "Mr Platcher: 'Will then I be allowed to go the evidence provided by the [Commission] and examine Mr Pettenon on that if they are providing that interview as …'

Primary Judge: 'Well, I don't understand that they are, is that the point?

Primary Judge: 'That [the Commission] is not putting forward the interview with [Mr] Pettenon into evidence, they are not intending to rely on that so therefore you have no right to cross examine him on that point.'" 125 I interpolate to note that Mr Platcher had not, at that stage, sought to "cross-examine" Mr Pettenon, although he plainly assumed that the transcript of his evidence was somehow already before the Court. Mr Platcher then sought to have her Honour explain to him what was going on: "Mr Platcher: 'Your Honour, just in a nutshell, if you wouldn't mind, what does it all mean as far as Mr Pettenon is concerned? Would he be able to - he can't give evidence in other words?' Primary Judge: 'No, the evidence that - he could be cross-examined but the evidence would be the evidence in his affidavit with paragraphs 4 and 5 deleted. I will let you think about that Mr Platcher. … You may decide that it is not in your interest to expose him to cross-examination on that basis and you may prefer not to read that affidavit but that is something, obviously, that I can't advise you on.'" 126 It seems to me that Mr Platcher did not understand the nature and effect of her Honour's ruling. He assumed that the transcript of Mr Pettenon's s 19 examination had been excluded when, in fact, her Honour's ruling had been directed only to pars 4 and 5 of Mr Pettenon's affidavit. Had Mr Platcher done no more than to call Mr Pettenon to give viva voce evidence confirming the truth of what he had earlier said to the Commission, as par 6 of the affidavit purported to do, it seems to me to be entirely possible that her Honour would have permitted that course to be followed. Any complaint by Mr Beaumont regarding his having been taken by surprise could have been addressed by granting any adjournment that might have been necessary to enable him to prepare his cross-examination. In my view, any such adjournment would not have been lengthy. I consider it unlikely, in the extreme, that Mr Pettenon's evidence would have been shut out entirely. 127 The primary judge correctly ruled that pars 4 and 5 of Mr Pettenon's affidavit should be excluded. Nevertheless, par 6 of that affidavit still affirmed the truth and accuracy of the evidence given by Mr Pettenon in the course of his s 19 examination. There was no reason to prevent that paragraph from being read. 128 There were, in my view, a number of legitimate means by which the transcript of Mr Pettenon's examination could have been admitted into evidence. Either party could have called Mr Pettenon to prove that transcript, and to adopt what he had previously said as true and correct. However, that was of no avail to Mr Platcher because, as will be seen, according to his unchallenged evidence, he believed that her Honour had already ruled that the transcript was inadmissible. 129 During the course of what eventually became the Disqualification Proceeding, while that matter was still in the Supreme Court, the Commission had filed and served an affidavit by Mr Pettenon that proved the transcript of his evidence in his s 19 examination. It is apparent, therefore, that not only was the transcript available to the Commission at all material times, but the Commission had already contemplated relying upon it. Later, that position altered. 130 It is against this background that Mr Platcher now submits that, at least in relation to the Disqualification Proceeding, his appeal should be allowed. He claims that because he did not understand her Honour's explanation of the position regarding Mr Pettenon's evidence, he was effectively deprived of that evidence, which was vital to his case. He argues that had Mr Pettenon's evidence been received, as it ought to have been, it was at least possible that her Honour would have come to a different conclusion regarding his role in the management of the company. 131 Mr Platcher is, and was at all material times, a self-represented litigant. He told us, in answer to a question from the Court, that many years ago he had had some limited legal training. He appears not to have assimilated a great deal of what he was taught. He is also, as Tamberlin and Emmett JJ note, a "businessman with considerable commercial expertise", though I would not myself apply the adjective "astute" to him. Far from being "able to present his case in a comprehensive logical and careful manner", as their Honours conclude, I regard him as having displayed little, if any, real understanding of how litigation is to be conducted. 132 Although Mr Platcher's further ground of appeal is couched in terms of a refusal on the part of the primary judge to admit the transcript of Mr Pettenon's s 19 examination, his submissions make it clear that his real complaint is that the primary judge did not explain to him with sufficient clarity what his procedural rights were. This prevented him from making an informed decision as to whether to call Mr Pettenon as a witness, or at least tender the transcript of his s 19 examination. 133 The hearing of this appeal was adjourned to allow Mr Platcher the opportunity to file further material demonstrating the circumstances that led to the rejection of Mr Pettenon's evidence. Mr Platcher was also permitted to include in the appeal papers the transcript of the examination that he claimed to have been wrongly excluded. In addition, he was permitted to give oral evidence as to his understanding of the position at the time he sought to read, and rely upon, Mr Pettenon's affidavit. He said that he believed that he would not be permitted to rely upon that affidavit, save as to certain formal and inconsequential matters. He also said that he believed that he would not be permitted to rely upon the transcript of Mr Pettenon's s 19 examination. He said that he would have sought to tender that transcript had he known that it was possible for him to do so. 134 The first question to be considered is whether, as Mr Platcher contends, the primary judge was under a duty to provide him with the level of assistance for which he now contends. 135 There is a considerable body of learning concerning the duty of a trial judge to a self-represented litigant engaged in complex litigation. Justice R D Nicholson has written extensively on this subject. See generally: "Australian Experience With Self-Represented Litigants" presented to the Fifth Worldwide Common Law Judiciary Conference, Sydney, 10 April 2003; "Can Courts Cope With Self-Represented Litigants?" presented as the Public Lecture for the 2003 Federal Court Visiting Judicial Fellow, Flinders University Law School, 16 September 2003; and "Litigants In Person"presented to the Supreme and Federal Court Judges' Conference, Hobart, 25 January 2001. See also E Richardson, Self-Represented Parties: A Trial Management Guide for the Judiciary, County Court of Victoria, 2004. 136 Among the cases to which his Honour referred, Cachia v Hanes (1994) 179 CLR 403 stands for the proposition that the right of a self-represented litigant to appear in person is fundamental. There is also case law to suggest that a frequent consequence of self-representation is that the Court must assume the burden of endeavouring to ascertain the rights of parties which are sometimes obfuscated by their own advocacy: Neil v Nott (1994) 121 ALR 148 at 150. Justice Nicholson refers to authority to the effect that the advice and assistance which a self-represented litigant receives from the Court should be that which is necessary to diminish, as far as possible, the disadvantage which he or she will ordinarily suffer, but without thereby conferring a positive advantage over the represented opponent, and without disobedience to the applicable rules: Rajski v Scitec Corporation Pty Ltd (unreported, Court of Appeal, NSW, Full Court, No. CA 146 of 1986, 16 June 1986) per Samuels JA. His Honour emphasises that it is essential that the Court should be careful to ensure that there is not a failure to claim rights, or that a possible claim is extinguished: Rajski at 27, and Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536-7. 137 Recently, the Full Court of the Family Court considered these principles in two cases, Johnson v Johnson (1997) 139 FLR 384 and In the Marriage of F (2001) 161 FLR 189. The latter case holds that a judge should ensure, as far as possible, that procedural fairness is afforded to all parties, whether represented or not, in order to achieve a fair trial. More specifically, it holds that a judge should inform a litigant-in-person of the manner in which the trial is to proceed, the order of calling witnesses, and the right which he or she has to cross-examine witnesses. In addition, a judge should explain to a litigant-in-person "any procedures relevant to the litigation". Other courts have applied these Family Court guidelines. See National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309; Santamaria v Secretary to Department of Human Services [1998] VSC 107; and Zegarac v Tomasevic [2003] VSC 150. 138 As Tamberlin and Emmett JJ have noted, the problems posed by self-represented litigants were considered by a Full Court of this Court in Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438. In that case, the Court carefully set out the duties owed by a trial judge to a self-represented litigant at 445-7. I shall not repeat these passages as they are set out in the joint judgment at para [104]. I agree with their Honours that the principles set out by the Full Court in Minogue are, by now, well established. It is only necessary to consider their application to the facts of the present case. 139 I have no doubt that the Commission presented a strong case against Mr Platcher. A large number of witnesses were called to testify that he had played a central role in the day-to-day operations of Growthcorp. From that evidence, it could plainly be inferred that Mr Platcher had been concerned in the management of the company. There was no evidence led by Mr Platcher to controvert the Commission's case. Nonetheless, the transcript of the trial reveals that Mr Platcher clearly wished to rely upon the evidence of Mr Pettenon to support his case that he had merely been acting as a consultant to the company. Having read the transcript of Mr Pettenon's s 19 examination, I can well understand why he would wish to rely upon that evidence. 140 It was when Mr Platcher sought to tender Mr Pettenon's affidavit that problems arose. As indicated earlier, once the Commission had closed its case, he sought to read that affidavit. For reasons that were never satisfactorily explained, Mr Platcher did not provide a copy of the affidavit, sworn several months earlier, to Mr Beaumont until the morning of 26 June 2002, the day on which he sought to call Mr Pettenon. 141 Mr Beaumont immediately, and very properly, objected to pars 4 and 5. He did so on two bases. He complained firstly that the affidavit should have been filed in accordance with a timetable that had previously been fixed. He said that he was not in a position to cross-examine Mr Pettenon immediately. He also complained that the two paragraphs contained "rolled up conclusions", and were therefore inadmissible at least as a matter of form. 142 The primary judge, sensibly, asked Mr Beaumont whether, in addition to pressing for the exclusion of pars 4 and 5, he would also object to Mr Platcher "being allowed to ask those questions at this stage in direct examination". Mr Beaumont told her Honour that he would be prejudiced by that course because he would be "surprised by detailed evidence", contrary to the Court's earlier directions. 143 As noted earlier, the primary judge then ruled that pars 4 and 5 could not be read. She told Mr Platcher that it was a matter for him as to whether he still wished to call Mr Pettenon, with those paragraphs taken out of the affidavit. He responded that Mr Pettenon was a "vital witness" in support of his case. There then followed the discussion recorded earlier in these reasons for judgment. 144 I am satisfied, on the evidence, that Mr Platcher mistakenly believed that "the evidence provided by the [Commission]", namely the transcript of the s 19 examination, was somehow already before her Honour. The primary judge plainly sought to disabuse Mr Platcher of that impression. In my view, however, her Honour did not succeed in that endeavour. The question that must be considered, therefore, is whether, in the circumstances, her Honour should have done more to ensure that Mr Platcher understood what was happening and what, if anything, he could do about it. 145 It is a fact that the primary judge told Mr Platcher that the Commission was "not putting forward the interview with Mr Pettenon into evidence". She added that the Commission was not intending to rely on that interview, so that he had no right to "cross-examine him on that point". Regrettably, that explanation seems only to have further confused Mr Platcher. He asked her Honour to tell him "in a nutshell" what it all meant. Did it mean that Mr Pettenon could not give evidence? 146 The primary judge responded to that question by saying that Mr Pettenon "could be cross-examined" but that evidence would be "the evidence in his affidavit with pars 4 and 5 deleted". She added that it might not be in Mr Platcher's interest to expose Mr Pettenon to cross-examination "on that basis", and that he may therefore prefer not to read his affidavit. She told Mr Platcher that this was obviously something that she could not advise him on. 147 I am left with a clear impression that her Honour's reply to Mr Platcher's request for assistance did not allay his confusion. 148 As indicated earlier, the evidence clearly establishes that the Commission itself contemplated, at one stage, calling Mr Pettenon to give evidence. However, as the correspondence between the parties tendered before this Court shows, the Commission had decided, apparently well before the trial, not to rely upon anything that he might say. 149 Mr Pettenon's evidence regarding Mr Platcher's role in the management of Growthcorp was obviously relevant. Indeed, it was fundamental to the central issue in the Disqualification Proceeding. 150 It is true that the Commission had informed Mr Platcher, well before the trial commenced, that it would not be calling Mr Pettenon. It did so indirectly, by not including his name among the list of proposed witnesses that it provided. 151 Having seen and heard Mr Platcher give evidence regarding his state of mind at the time her Honour ruled on the Pettenon affidavit, I am satisfied that he was genuinely confused by what was happening. It need hardly be said that a self-represented litigant is unlikely to have any real appreciation of the nuances of the rules of evidence. The primary judge had earlier directed that the trial be on affidavit. That decision, though common enough in litigation in this Court, seems to have created a particular problem for Mr Platcher. Where a witness is called to give viva voce evidence, a self-represented litigant will ordinarily be given a degree of latitude in formulating appropriate questions. This ensures that relevant evidence can be elicited, and placed before the Court. Affidavit evidence, however, does not lend itself to such flexibility. 152 Experience has shown that self-represented litigants are seldom able to prepare affidavits that comply with the rules of evidence, or matters of form. It seems to me that where a self-represented litigant desires to call evidence from a witness whose testimony may be of critical importance to his or her case, a trial judge must be particularly astute to ensure that matters that are essentially of a technical nature do not prevent that witness's evidence from being received. Otherwise, there is a risk that such a litigant will be denied a fair trial. 153 Mr Pettenon's affidavit was plainly defective, at least with regard to form. Once Mr Beaumont had objected to pars 4 and 5, the primary judge had no real choice other than to order that those paragraphs be excluded. The difficulty is that Mr Platcher plainly had little understanding of what was happening. He clearly believed that there was no point in seeking to call Mr Pettenon because his evidence on critical matters would not be received. That was not necessarily the case. However, Mr Platcher was never adequately apprised of the fact that there were other avenues legitimately open to him by which Mr Pettenon's evidence could be received. 154 Had Mr Platcher been legally represented, his counsel almost certainly would have sought to call Mr Pettenon in order to adduce evidence from him viva voce. That evidence would presumably have been along the lines of the account that he gave in his s 19 examination. It is difficult to imagine that an application of that type would have been refused. Mr Beaumont might have complained, as he did, that he was taken by surprise. He might also have complained that he ought not be required to cross-examine Mr Pettenon immediately, on matters of detail, without a proper affidavit having been filed. 155 Had Mr Beaumont objected to Mr Pettenon's evidence being received on the basis that he was taken by surprise that objection could readily have been dealt with on its merits. I consider that any prejudice suffered could have been met by a brief adjournment, at most. After all, the Commission itself was well aware of what Mr Pettenon was likely to say. It had conducted the very same s 19 examination that would have formed the basis of his evidence, had the Commission adhered to its earlier intent to lead that evidence. Mr Beaumont informed the Court that he personally had not read the transcript of that examination prior to the hearing of the proceeding below. Presumably, that was because he had only been retained as counsel after the decision had been taken not to call Mr Pettenon. Nonetheless, any counsel retained on behalf of the Commission in a matter of this type should, in my view, have been able to prepare his cross-examination of Mr Pettenon in a relatively short time. At the very least, Mr Beaumont could hardly complain that the Commission itself would be taken by surprise by anything that Mr Pettenon was likely to say. 156 Regrettably, although the primary judge raised with Mr Beaumont the possibility that Mr Pettenon might give evidence, viva voce, as a means of overcoming the defects in his affidavit, she was immediately dissuaded from that course by his claim that this would be unfair as he would be taken by surprise. Her Honour did not hear Mr Platcher on this point, simply accepting Mr Beaumont's submission at face value. 157 Mr Platcher was entitled to conclude from what her Honour said to Mr Beaumont that the matter of Mr Pettenon was a fait accompli, and that the only evidence that he would be permitted to lead from that witness, if he were to be called, was that contained in his affidavit, with the exclusion of pars 4 and 5. Yet, these were the two paragraphs that Mr Platcher specifically regarded as being absolutely vital to his case. 158 There is nothing to suggest that Mr Platcher appreciated that he was entitled to be heard on the question whether viva voce evidence should be received from Mr Pettenon. Indeed, the transcript of the proceeding below suggests the contrary. Yet this was, in my view, a matter of fundamental importance. I consider that the primary judge ought to have explained to Mr Platcher more clearly than she did that he was entitled to press an application that Mr Pettenon be permitted to give viva voce evidence. 159 In my view, the discussion that then took place between the primary judge and Mr Platcher regarding the transcript of the s 19 examination simply compounded the problem. A self-represented litigant is hardly likely to understand the workings of the hearsay rule. Even if Mr Platcher had been aware, before the trial commenced, that the Commission did not intend to call Mr Pettenon as a witness, he was clearly under the impression that the transcript of the s 19 examination was "before the Court" in some unspecified way. 160 As indicated earlier, Mr Platcher gave evidence before this Court that he had mistakenly believed that the transcript Mr Pettenon's s 19 interview was already in evidence during the trial. He was not challenged as to that evidence. He seemed to me to be telling the truth about that matter. Not only did he believe that he could refer to, or rely upon, the evidence that Mr Pettenon had given during the course of his s 19 examination, I consider that his belief was reasonable in the circumstances. After all, a s 19 examination might well seem to a self-represented litigant to be just the kind of evidence that would be available, as of right, for use in a court. Mr Platcher's belief regarding this matter could only have been bolstered by the Commission's own conduct in having, at an earlier stage, manifested an intention to rely upon the transcript of the examination as part of its case. 161 As I have noted, the primary judge attempted to explain to Mr Platcher that he was mistaken in believing that Mr Pettenon's evidence was already before the Court. I seriously doubt that Mr Platcher had any real appreciation of what her Honour was saying to him regarding this issue. It seems to me, from the discussion that took place, that he had little, if any, understanding of the distinction between examination-in-chief and cross-examination. Indeed, he spoke at one stage of wishing to "cross-examine" Mr Pettenon which, as her Honour correctly pointed out, he could only do if the Commission itself had called him. 162 I can see no reason why Mr Platcher could not have called Mr Pettenon to give evidence, shown him the transcript of his s 19 examination, and asked him simply whether the contents were true and correct. In a sense, that is precisely what par 6 of Mr Pettenon's affidavit purported to do. The only difference is that par 6 did not exhibit the transcript of that examination. 163 It was obviously vital to Mr Platcher's case that Mr Pettenon's evidence be admitted. I consider, with respect, that the primary judge did not make it sufficiently clear to Mr Platcher that there were several ways in which he could properly have had that evidence admitted. The approach of calling a witness to adopt a previous statement as true and correct is routinely followed in this Court. Indeed, that approach is expressly contemplated by s 37(3) of the Evidence Act 1995 (Cth) which allows a written statement or report to be tendered or treated as evidence in chief of its maker, pursuant to rules of court. The primary judge should, in my view, have made it clear to Mr Platcher that this course may have been open to him. 164 I am not convinced that the outcome of the trial would necessarily have been the same had Mr Pettenon's evidence been received. The Commission presented a strong, but not unanswerable case. I accept, of course, that Mr Platcher was not entitled to preferential treatment merely because he was a self-represented litigant. However, he was entitled to have his case considered on its merits. More fundamentally, he was entitled to a fair trial. 165 I have considerable sympathy with the position that the primary judge found herself in. She was faced with the difficult task of conducting a complex case with a self-represented litigant as one of the parties. As the cases to which I have referred demonstrate, such litigants frequently pose problems for the Court. By their ill-advised conduct, they sometimes frustrate the goals of efficiency and fairness. However, as the High Court observed in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, while case management principles are a relevant consideration, they should not take precedence over the need to ensure that a party can litigate any issue that is fairly arguable. That principle applies as well to a party's ability to call evidence that is of vital importance to his or her case. 166 Mr Platcher was self-represented, unfamiliar with the procedures involved in the conduct of the trial, and appears not to have understood her Honour's explanation of why she had rejected pars 4 and 5 of Mr Pettenon's affidavit. Those facts do not, of themselves, mean that Mr Platcher is entitled to succeed on this appeal. He must go on to demonstrate that, by reason of what occurred, he did not receive a fair trial. In the present context, that means that he must establish that the primary judge did not adequately explain to him his procedural rights. 167 After giving this matter anxious consideration, I am satisfied that Mr Platcher has made good the further ground of appeal. I consider that the assistance provided by her Honour to Mr Platcher regarding his procedural rights fell short of what the circumstances of the case required. Mr Platcher was entitled to be told, in clear terms, that he could press for the admission of Mr Pettenon's evidence, subject only to a possible adjournment being granted to enable Mr Beaumont to prepare for cross-examination. Moreover, he was entitled to be told how he might legitimately tender, or otherwise rely upon, Mr Pettenon's evidence. 168 The primary judge concluded that Mr Platcher should be disqualified from being a company director for 25 years. That is obviously a penalty of the utmost severity. It may well be that disqualification for that period is entirely merited. However, I am left with a deep sense of unease that a penalty of this magnitude should be imposed in circumstances where the primary judge did not hear from a witness who was pivotal to Mr Platcher's defence, and was in fact the only witness upon whose evidence he proposed to rely. 169 I consider that the appeal in the Disqualification Proceeding should be allowed, and that the matter should be remitted to the primary judge for further hearing and determination. That would allow her Honour to consider Mr Pettenon's evidence, and to weigh it against the evidence given by the other witnesses already called by the Commission. I can see no reason why her Honour should be precluded from reconsidering the evidence as a whole, once she has heard from Mr Pettenon. An analogous, though more limited course, was followed by a Full Court in Dukemaster Pty Ltd v Bluehive Pty Ltd [2001] FCA 180. 170 As mine is a dissenting opinion, it is unnecessary to say anything further.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Counsel for Mr Platcher: Mr Platcher appeared in person

Counsel for Mr Joseph: Mr Joseph did not appear

Date of Hearing: 12 August, 14 November 2003

Bankruptcy Act 1966(Cth)ss 153A, 153B

Corporations Act 2001(Cth)ss 206A, 206B, 206E, 1330

tamberlin and emmett JJ: 1 There are two appeals before this Full Court. They have been heard together. The appellant in both appeals, Charles Edward Platcher ('Mr Platcher'), is a bankrupt. Mr Platcher was a party to two proceedings that were heard together by a judge of the Court. One proceeding ('the Annulment Proceeding') was brought by Mr Platcher against Paul Francis Joseph ('Mr Joseph') under s 153B of the Bankruptcy Act 1966 (Cth) ('the Bankruptcy Act') to annul Mr Platcher's bankruptcy. The other proceeding ('the Disqualification Proceeding') was brought by the Australian Securities & Investments Commission ('the Commission') against Mr Platcher for orders under the Corporations Act 2001 (Cth) ('the Corporations Act') disqualifying Mr Platcher from managing corporations. The two proceedings were heard together by the primary judge: see Platcher, in the matter of Platcher v Joseph [2003] FCA 9.

Platcher v Joseph

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