Salfinger v Niugini Mining

FINKELSTEIN J 1 Mr Salfinger's appeal from the orders of Heerey J is listed to be heard today. Not for the first time, Mr Salfinger is applying for the hearing date to be vacated and the appeal to be adjourned. For their part the respondents resist the application, and the second respondent seeks an order that the appeal be dismissed for want of prosecution. 2 It is necessary to say a word or two about the background to put both applications into context. The dispute has its origins in an agreement entitled "Asset Transfer Deed" between a now deregistered company, Arkaroola Resources Pty Ltd, of which Mr Salfinger was the sole director, and the first respondent, Niugini Mining (Australia) Pty Ltd. By operation of the deed, Arkaroola agreed to purchase for $220,000 several mining tenements, freehold and Crown leaseholds, as well as information relating to the suitability of the tenements or adjacent areas for the production of zinc and copper. The deed was conditioned upon the consent to the transfer of the tenements and leaseholds by the relevant ministers of the Queensland Government, the second respondent. 3 In circumstances that are not altogether clear, Niugini Mining purported to terminate the agreement and to take back possession of the properties. Arkaroola took the stance that the purported termination was unlawful. In January 2001 it brought an action against Niugini Mining in the Supreme Court of Queensland. It sought an order for the specific performance of the deed or, in the alternative, "damages pursuant to the deed". The action did not get very far. Orders were made that Arkaroola file affidavits and reports from mining experts. This may have been done to deal with an argument raised by Niugini Mining, namely, that as a result of the mining activities conducted by Arkaroola there had been a discharge from a tailings dam that had caused contamination. For this reason, it seems, Niugini Mining had terminated the deed. At all events the affidavits and reports were not filed and accordingly the action was dismissed. 4 Mr Salfinger has an explanation for Arkaroola's failure to comply with the Supreme Court timetable. He says, in effect, that Arkaroola's experts, the C & B Group, were working for Niugini Mining and would not provide timely assistance to Arkaroola for its case. That, however, does not explain why Arkaroola did not engage other experts for the task. 5 This action also seeks relief against Niugini Mining for breach of the deed. Relief of a different kind is sought against the Queensland Government. 6 As against Niugini Mining an array of remedies are sought, including a declaration that the forfeiture of the asset transfer deed was unconscionable and in contravention of s 51AA of the Trade Practices Act 1974 (Cth), a declaration that Niugini Mining has been unjustly enriched at the expense of Arkaroola's assets, damages, equitable compensation and other relief. As against the Queensland Government relief is sought for unconscionable conduct in breach of s 51AA, misfeasance in public office, breach of statutory duty, negligence, breach of contract and intimidation amongst other remedies. 7 In this action, however, the plaintiff was not Arkaroola, who is the alleged victim of the wrongful conduct. That company was put into liquidation on 10 March 2003 and in due course was deregistered. Mr Salfinger was the plaintiff. He claimed standing to maintain the action in his own name as "assignee of the causes of action held by Arkaroola". In fact he claimed standing from two assignments: one from Arkaroola to Crocodile International Manufacturing Ltd, said to have been made on 1 June 2002 (that is, before the winding-up commenced) and the second from Crocodile to himself dated 16 November 2006. 8 The action did not proceed by way of pleadings. Nonetheless, the respondents informed the court that, so far as standing was concerned, they intended to argue that: (1) the assignment from Arkaroola to Crocodile had been fraudulently backdated, the document having been prepared after Arkaroola went into liquidation; and (2) in any event the causes of action the subject of the two assignments were as a matter of law incapable of assignment. 9 On the application of the respondents made pursuant to O 29 of the Federal Court Rules, the judge ordered that the following question be determined separately - "Whether the purported assignments of the causes of action in these proceedings: (a) from [Arkaroola] to [Crocodile]; [and] (b) from Crocodile to [the appellant,] are effective to assign the causes of action that Arkaroola had against the first and second respondents to Crocodile and then to the [appellant]." 10 The hearing of the separate question took place on 10, 11 and 25 September 2007. Initially, Mr Salfinger had unsuccessfully sought to have the trial adjourned, and again, on the final day of the hearing, he unsuccessfully applied for an adjournment. 11 As far as the trial is concerned it is to be noted that Mr Salfinger gave evidence about the execution of the two assignments. So also did a Canadian lawyer, Ronald Klassen, who was the purported author, at least of a precedent form, of the assignment document. One John McCordic also gave evidence. It was said that he was a director of Arkaroola before the company had been placed into liquidation. 12 For reasons which travel over 26 pages of his judgment, the judge found that the assignment of June 2002 had been backdated by Mr Salfinger. Then, on the authority of cases such as Poulton v Commonwealth (1953) 89 CLR 540 the judge held that the causes of action the subject of the purported assignment were not assignable in law in any event. Hence, he ordered that the answer to the question raised under O 29 be answered: "No". He also ordered that the application be dismissed. Later he ordered Mr Salfinger to pay the respondents' costs on an indemnity basis. 13 These are the orders against which the appeal is brought, but Mr Salfinger does not want the appeal to go ahead, at least not at this time. Moreover, Mr Salfinger has not taken the steps he was ordered to take to get the appeal ready for hearing. A timetable fixing those steps had been ordered by the Chief Justice on 5 February 2008. Those orders were not complied with. The times were extended by Gordon J on 24 April 2008. The new times were not complied with. Both sets of breaches form the basis of the second respondent's application for the dismissal of the appeal for want of prosecution. 14 Through his counsel, Mr Willee QC, Mr Salfinger puts forward several grounds to adjourn the appeal. Mr Salfinger's present adjournment application, it should be noted, is not his first. That was brought by motion filed on 23 April 2008 and supported by an affidavit sworn on the same day. Mr Salfinger, who had appeared pro se at the trial, had engaged lawyers to prosecute the appeal, but said he had run out of money to pay their fees as he had to cover the costs of the recent marriage of his youngest daughter and he had to put away more money for the impending marriage of his eldest daughter. He explained that "[i]n order to keep some degree of domestic harmony on the home front" he chose to spend his money on the wedding rather than pay his lawyers to run the appeal. He asked for additional time to once again obtain the assistance of lawyers. 15 Gordon J heard and dismissed the motion. Of importance to Gordon J was the fact that Mr Salfinger had not suggested that he was unable within the necessary timeframe to raise the funds to prosecute the appeal and, as she pointed out, the appeal had been on foot since October 2007 and there had been ample time to attend to what was necessary to prosecute the appeal. 16 On 24 April 2008 Mr Salfinger filed a further motion for an adjournment. This motion set forth the grounds upon which the new application was based as follows: (a) that the appeal be adjourned "until proceedings being dealt with in America and Israel, in respect to matters concerning the evidence that was not admitted [at the trial] be dealt with and determined"; and (b) that Mr Klassen and Mr McCordic be allowed to be joined in this matter as appellants. 17 In an affidavit affirmed today, Mr Salfinger set out other reasons why he now seeks the adjournment. Some overlap, but they may be summarised as follows. Two grounds put forward, which are irrelevant to the merits, are: (1) the weddings of his daughters, which were, in any event, the subject of the earlier application; and (2) the ill health of his father. True they may have used up funds that Mr Salfinger might have otherwise deployed in the prosecution of the appeal, but those events occurred sufficiently long ago not to have prevented him in the meantime from funding his lawyers. In any event, he has at least had the funds to prosecute the adjournment application and those funds could have been also deployed in prosecuting the appeal. These observations are sufficient to answer Mr Salfinger's general complaint that he lacks the funds to prosecute the appeal, which appears variously in his affidavit sworn today. 18 Another ground was the unavailability of a document which, Mr Salfinger says, ought to have been produced at the trial. In fact the document may well be a computer record. In his affidavit Mr Salfinger refers to that document as having been produced for purposes of a proceeding in the Supreme Court of British Columbia. A demand for discovery in that action seems to have been made on 8 March 2004, just over four years ago. Mr Salfinger explains that the computer on which the document is stored is being held in Canada for the purposes of that action pursuant to a specific request of a party to the action sent by letter to Mr Salfinger dated 29 April 2008. I simply do not accept that that is a proper basis for the present adjournment. If the document, whether it be a computer record or otherwise, is important to this appeal - a matter about which I make no comment at all - arrangements could have been made to have the document produced to the Full Court either before or since 29 April. If necessary, arrangements could have been made on application to a judge of the British Columbian Court to arrange for the transfer of the document to this court. 19 Mr Salfinger also relies on an affidavit of Mr McCordic who, it will be recalled, was one of the witnesses who gave evidence at the trial. The gravamen of Mr McCordic's affidavit is that during the course of his evidence before the trial judge he was extremely unwell. He deposes in his affidavit first that he was suffering from the onset and effects of hyperglycaemia and hypoglycaemia. He goes on to say that, during the course of his cross-examination, he felt faint and disoriented, was struggling to stay awake and felt sick. I should point out that no mention of any of these matters was made to the trial judge. The first time they seem to have been raised was in Mr McCordic's affidavit of today. In any event, the issues Mr McCordic dealt with in his evidence would not in my opinion have made any difference to the outcome of the trial. 20 For these reasons I would decline to make an order vacating the date fixed for the hearing of the appeal, although I was very much tempted by Mr Willee's submissions. 21 In arriving at the decision not to adjourn the appeal, I have had in mind the merits of the appeal. First, there is the finding that the June 2002 assignment had been backdated. That involved in part the judge forming a view about the honesty of the evidence given by the witnesses, especially that of Mr Salfinger. The judge's findings were based, in no small measure, on his observations of Mr Salfinger. The judge also based his finding on objective considerations, including the content of the purported assignment and other surrounding circumstances. Hence, the prospects of a successful appeal are indeed slim, and that is putting the matter at its highest. 22 By the same token, I would not order that the appeal be dismissed for want of prosecution. I do not believe that the respondents are in any way prejudiced by not having received from Mr Salfinger an outline of the arguments they presently do not have in written form. For the foregoing reasons I would dismiss the application for adjournment with costs and require the appeal to proceed forthwith. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.