FEDERAL COURT OF AUSTRALIA

Weeden v Rambaldi [2013] FCAFC 12

THE COURT ORDERS THAT:

1.    The parties confer, and in the event of agreement, file and serve within 14 days joint proposed minutes of orders (including as to costs) reflecting these reasons.

2.    In the event that the parties cannot agree as to the appropriate minutes of orders, each party is to file and serve within 14 days proposed minutes of orders and short written submissions in support of such proposed orders.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).

REASONS FOR JUDGMENT

Introduction

1    In this appeal, the appellant, Philip Weeden, alleged that the primary judge’s multiple errors in the treatment of the evidence led him wrongly to conclude that the second respondent, Andrew Yeo, was appointed the sole trustee of his bankrupt estate. The appellant contended that on any proper assessment of the evidence, his Honour should have determined that the first respondent, Gess Rambaldi, and second respondent were appointed joint trustees.

2    In our opinion, for the reasons that follow, his Honour did not err as alleged.

3    By an amended notice of appeal dated 24 July 2012, the appellant appeals from the decision of the primary judge given on 29 May 2012, on the ground that:

The learned primary judge erred in holding that the minutes of the creditors’ meeting of 19 March 2007 were not a reliable and accurate record of the resolution appointing new trustees, and in finding that at that meeting the second respondent was appointed as sole trustee of the bankrupt estate of the appellant. His Honour so held in the absence of any direct evidence of what happened at the meeting, as none of the three attendees, Turner, Lester or Bond, now retain any recollection of what took place during the meeting (at [18]).

4    The sole ground of appeal was amplified by a large number of particulars.

5    His Honour held that notices of objection to the appellant’s discharge from bankruptcy, signed only by the second respondent, Mr Yeo, were validly given, as Mr Yeo had been appointed sole trustee. His Honour rejected the appellant’s contention that the first respondent, Mr Rambaldi, was a joint trustee whose failure to sign the notices of objection rendered them invalid.

6    The appellant alleged that the minutes of the creditors’ meeting held on 19 March 2007 established that a resolution was passed to appoint the first and second respondents as joint trustees. His Honour held that rather, on the balance of probabilities, a resolution to appoint the second respondent as a sole trustee was passed at the meeting.

7    The minutes recorded, among other things, the following:

The President advised the meeting that creditors had requested the Trustee convene a meeting to consider a resolution that Dennis Turner be removed as Trustee and Messrs Gess Rambaldi and Andrew Yeo be appointed Trustees.

Creditors were invited to propose the following motion:

“Dennis Turner be removed as Trustee of the bankrupt Estate of Philip Charles Weeden and Messrs Gess Rambaldi and Andrew Yeo be appointed as joint Trustees of the bankrupt Estate of Philip Charles Weeden”

8    The minutes further stated:

Proposed by Mr Sam Bond as proxy for Playcorp Pty Ltd.

Seconded by Mr Sam Bond as proxy for Playgro Pty Ltd.

The motion was passed.

9    The minutes were signed by Mr Turner, who presided over the meeting.

10    His Honour held that the minutes did not reliably and accurately record the resolution that was passed at the meeting, which, on the balance of probabilities, was to appoint Mr Yeo as sole trustee.

11    The appellant alleged that his Honour erred primarily by his failure to accord sufficient weight to the minutes, contrary to the principles established in Australian Securities and Investments Commission v Hellicar (2012) 286 ALR 501; [2012] HCA 17 (“Hellicar”). The appellant also alleged that his Honour erred in failing to rule on objections to, or to exclude, particular evidence, and in the treatment of the evidence of the witnesses on various grounds.

12    The first and second respondents sought to uphold the decision below. The third and fourth respondents (against whom the appellant sought orders that they correct the National Personal Insolvency Index to reflect his discharge from bankruptcy on 7 February 2010) made no submissions and were content to abide the order of the court.

13    If his Honour erred as the appellant alleged, and Messrs Rambaldi and Yeo were appointed joint trustees at the meeting, there would be no valid objections to the appellant’s automatic discharge pursuant to s 149 of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”), as the objections lodged on 30 June 2008 and 24 March 2010 were signed only by Mr Andrew Yeo and (as was common ground) were not the acts of Messrs Yeo and Rambaldi acting jointly. In the absence of any valid objection, the appellant’s discharge from bankruptcy would have occurred on 7 February 2010. Similarly, the Notices of Contribution and Assessment issued to the appellant by Mr Yeo between 11 December 2007 and 27 May 2011 would be of no legal effect, as they were not issued by Messrs Yeo and Rambaldi acting jointly.

facts and evidence

14    The appellant was made bankrupt on his own petition on 7 February 2007 and Dennis Turner was appointed his trustee in bankruptcy.

15    Around mid-February 2007, Samuel (“Sam”) Bond, the solicitor for Playcorp Pty Ltd and Playgro Pty Ltd (“the Playcorp entities”) (which together constituted the majority creditors of the appellant’s bankrupt estate) telephoned Mr Yeo, a partner of Pitcher Partners, and asked if he would consent to be appointed trustee in place of Mr Turner.

16    Between 24 February and 26 February 2007 both Mr Yeo and Mr Rambaldi (another partner of Pitcher Partners) signed a Consent to Act and Trustee Declaration.

17    By a letter dated 1 March 2007 to the Playcorp entities, Mr Bond advised them of the procedure for removing and replacing a trustee, by, among other things, calling a meeting of creditors to pass a resolution to appoint a preferred trustee “such as Mr Andrew Yeo of Pitcher Partners”. The letter stated that Mr Bond had requested Mr Yeo’s consent to act as the new trustee.

18    By a facsimile to Mr Turner dated 2 March 2007, Mr Bond advised that the Playcorp entities intended to remove Mr Turner as trustee and to appoint Mr Yeo in his place. The facsimile noted the requirement that all creditors receive notice of the proposed agenda for the meeting and sought inclusion of the following two items:

1.    that Mr Dennis Turner be removed as trustee in bankruptcy;

2.    that Mr Andrew Yeo be appointed as trustee in bankruptcy.

19    Mr Bond’s facsimile stated that it enclosed, for circulation and tabling, a copy of Mr Yeo’s Consent to Act as trustee. The enclosed document was in fact the Consent to Act form signed by both Mr Rambaldi and Mr Yeo.

20    By a letter dated 7 March 2007 to Mr Weeden’s creditors, Mr Turner advised of the proposal to replace him with Mr Yeo and of the forthcoming meeting and proposed resolutions. It attached an agenda for the meeting and a statement of claim and proxy form in relation to proposed motions. Item (l) on the agenda stated:

Resolution removing Mr Dennis Turner as the Trustee of the Bankrupt Estate of Philip Charles Weeden and appointment of Mr Andrew Yeo as Trustee of the Bankrupt Estate of Philip Charles Weeden.

21    The single resolution in item (l) in substance contained the two resolutions set out in Mr Bond’s facsimile referred to in paragraph 18 above.

22    It was not disputed that, as his Honour found, the creditors’ meeting on 19 March 2007 was attended by only three people. They were:

(a)    Mr Turner (the existing trustee of the appellant’s bankrupt estate, who chaired the meeting);

(b)    Ms Lester (Mr Turner’s assistant who, prior to the meeting, in accordance with her usual practice, prepared a running sheet for Mr Turner to use as a script for its conduct). Ms Lester also took brief notes during the meeting and subsequently prepared both the minutes and a letter to Messrs Rambaldi and Yeo dated 19 March 2007.

(c)    Mr Bond (the solicitor for, and proxy of, the Playcorp entities, which were the majority creditors of the appellant).

23    It was not disputed that the three people in attendance had little or no recollection of the creditors’ meeting and, (unassisted by documents), no recollection at all of the resolution that was passed.

The primary judge’s reasons

24    Section 257 of the Bankruptcy Act provides:

257    Evidence of proceedings at meetings of creditors or committee of inspection

The minutes of proceedings at a meeting of creditors or of a committee of inspection under this Act, signed by a person describing himself or herself as, or appearing to have been, chair of the meeting is prima facie evidence of those proceedings.

25    At several points in his reasons, his Honour expressly recognised that s 257 of the Bankruptcy Act had “the effect of designating the minutes as prima facie evidence of the proceedings at the creditors’ meeting” (at [14]) and hence, established a presumption that they should, “on a prima facie basis, be regarded as a reliable and accurate record of the proceedings at the meeting, including the resolutions there made” (at [16]).

26    His Honour set out the events leading up to the meeting on 19 March 2007.

27    His Honour observed that the three attendees, although unable to remember the meeting, gave evidence of their standard practices in conducting and recording a creditors’ meeting. His Honour stated at [18]:

Each of the three persons who attended the creditors’ meeting — Turner, Bond and Lester — gave evidence that, unassisted by documents relating to the creditors’ meeting, they had not retained any recollection of the resolution passed by the meeting replacing Turner as the trustee. Each has little or no recollection of the creditors’ meeting at all. It is completely unsurprising that should be the case. The meeting occurred a long time ago. Turner is a registered trustee. Lester is his assistant. Bond is an experienced insolvency solicitor. Each will have attended numerous meetings of creditors. There is no suggestion in the evidence that this particular creditors’ meeting was other than a routine meeting of no particular significance to any of its attendees. I have no reason to think that each of these witnesses did not do the best that each could to fairly and properly enlighten the court as to what occurred at the creditors’ meeting and as to relevant events surrounding that meeting.

28    His Honour observed that, in his view, all three witnesses had attempted to assist the Court and the evidence of their standard practices was, in the absence of any indication to the contrary, a good guide to their actual practice on the occasion in question (at [20]).

29    In the course of his reasons, his Honour considered a number of documents.

30    His Honour described two documents as contemporaneous records of the creditors’ meeting, namely:

1.    Ms Lester’s handwritten notes made during the creditors’ meeting. The notes comprised approximately ten short lines, which relevantly included:

Andrew Yeo DAT to make available doc to him – DAT to cooperate

Voting in favour – via proxies

6% to Andrew Yeo

Both parties will advise ITSA

Andrew to write to creditors.

Yeo – realisation submit to you to action in due course.

2.    Mr Bond’s notes made on a copy of the agenda page distributed at the creditors’ meeting (which set out the resolution at paragraph 20). Mr Bond’s handwritten notes stated, among other things, “Copies of all to AY. – Co-operate”, “Voted in favour of removal and replaced” and “both to advise ITSA”.

31    His Honour also considered a document entitled “The Running Sheet” prepared by Ms Lester prior to the creditors’ meeting for Mr Turner to use as a “script” when conducting the meeting on which Mr Turner probably made annotations in preparation for and just prior to the meeting. The Running Sheet stated, under “Opening and Introduction”:

This is a meeting of creditors of the Bankrupt Estate of Philip Charles Weeden. Convened pursuant to s 181 of the Bankruptcy Act 1966, to consider a creditors resolution to replace me as the Trustee and appointment [sic] Mr Yeo as Trustee.

A copy of the Consent to Act executed by Mr Yeo is tabled.

Under “Resolution for Removal of Dennis Turner and Appointment of Andrew Yeo”, the Running Sheet stated:

As you are aware, Creditors have requested I convene a meeting to consider that I be removed and Mr Andrew Yeo be appointed Trustee.

Accordingly creditors are invited to propose the following motion:

“Dennis Turner be removed as Trustee of the Bankrupt Estate of Philip Charles Weeden”

Passed/not passed

A handwritten notation by Mr Turner added “& replaced by Andrew Yeo.”

The following was “scored out” by handwritten lines:

Andrew Yeo be appointed as Trustee of the bankrupt Estate of Philip Charles Weeden

Passed/not passed.

32    The effect of the handwritten notations was consistent with the reduction of the two separate resolutions on the agenda to a single resolution. His Honour found that while the Running Sheet was not contemporaneous with the communications at the meeting, in the absence of evidence to the contrary, its contents were a reliable guide to what Mr Turner said at the meeting prior to calling for “any other business”.

33    His Honour considered the Consent to Act enclosed in Mr Bond’s letter dated 2 March 2007 to the Playcorp entities and stated:

Bond’s evidence was that he had not noticed that the document contained the consent of both Rambaldi and Yeo…

34    His Honour observed that the creditors’ meeting lasted for about half an hour and two documents, which stated that resolutions were passed removing Mr Turner and appointing Mr Yeo (and did not contain any reference to Mr Rambaldi) were prepared by Mr Bond within two hours of the meeting. They were:

(a)    Mr Bond’s facsimile to Mr Yeo dated 19 March 2007. The facsimile stated, among other things:

We refer to the above matter and to your consent to act as trustee in bankruptcy provided a short while ago.

We advise that the writer attended the meeting of creditors at 3.00pm today and resolutions were passed to remove Mr Turner as trustee in bankruptcy and appoint you as trustee in bankruptcy.

Accordingly, we would be grateful if you would now confer with Mr Turner so as to obtain his file and take any steps you need to in order to notify ITSA.

(b)    Mr Bond’s letter to the Playcorp entities dated 19 March 2007 which relevantly stated:

Aside from the usual formal parts of the meeting, the resolutions put and passed were:

(a)    that the trustee in bankruptcy’s remuneration would be approved;

(b)    that the trustee in bankruptcy be removed; and

(c)    that Andrew Yeo be appointed trustee in bankruptcy.

…

We have now written to Mr Yeo and advised of the confirmation of his appointment. We hereby attach a copy of the facsimile as sent. Mr Yeo will now confer with the previous trustee in bankruptcy to obtain his file.

35    His Honour concluded at [39]:

Given the temporal proximity of the preparation of the correspondence with the creditor’s meeting, I would regard Bond’s recollection at the time the correspondence was prepared, as a reliable recollection of his understanding of what transpired at the creditors’ meeting.

36    His Honour considered the minutes in detail. He noted that while they purported to be made on the day of the creditors’ meeting, they were not finalised until at least three days later. Ms Lester’s time sheets indicated that she worked on their preparation on 19, 20 and 22 March 2007, and his Honour concluded that the minutes must have been signed off by Mr Turner on or after 22 March 2007.

37    His Honour concluded that Ms Lester would have prepared the minutes by reference to her recollection, her notes, and some or all documents on the Weeden file, including the agenda, the Running Sheet, the Consent to Act and a letter from Mr Turner to Mr Yeo and Mr Rambaldi dated 19 March 2007.

38    His Honour inferred that the minutes were, in large part, prepared by reference to the Running Sheet, which they frequently appeared to adapt. All references to Mr Yeo in the Running Sheet were, in the minutes, expanded to include Mr Rambaldi. The expanded reference was, at least in one case, clearly incorrect, as Mr Turner did not, as the minutes stated, convene the meeting to consider a resolution to appoint both Mr Yeo and Mr Rambaldi. His Honour observed that the error suggested a mechanical inclusion of the latter’s name.

39    His Honour also considered Ms Lester’s notes taken at the meeting, some entries in which did not appear in the minutes. Further, his Honour noted that contrary to s 64Z(10) of the Bankruptcy Act, the minutes were not signed by Ms Lester as minutes secretary, nor, as required by s 64Z(5) of the Bankruptcy Act, was a certificate made recording the precise words of the resolutions passed.

40    His Honour observed that the minutes referred to “both” parties informing the Insolvency and Trustee Service Australia (“ITSA”) of the replacement trustee, which he thought more apt to describe the replacement of Mr Turner by one trustee, rather than two trustees.

41    His Honour noted that Mr Turner was aware of the requirement in s 64Z(4) of the Bankruptcy Act, and normally fulfilled statutory requirements, including those applicable to a proposed amendment to a resolution, by notifying creditors. His Honour stated that as the only creditors attending the meeting were those represented by Mr Bond, only Mr Bond could have proposed an amendment, but there was no evidence that he did, or had any incentive to do so. Further, neither Mr Bond’s notes, Ms Lester’s notes, nor any other document referred to any amendment, as would have been likely if an amendment were proposed.

42    His Honour considered possible explanations for how Mr Rambaldi’s name came to be included in the minutes. He noted the first and second respondents’ contention that Ms Lester, when preparing the minutes, mistakenly had regard to the Consent to Act and Mr Turner’s letter of 19 March 2007 to Messrs Yeo and Rambaldi, both of which referred to Mr Rambaldi and Mr Yeo. Mr Turner’s letter to Messrs Yeo and Rambaldi relevantly stated:

I confirm a meeting of creditors held today resolved pursuant to section 181 of the Bankruptcy Act 1966, that I should be removed as Trustee and Messrs Gess Rambaldi and Andrew Yeo should replace me.

43    Although dated 19 March 2007, the letter was imprinted with a date stamp of 27 March 2007.

44    His Honour noted that Ms Lester had the above documents in her possession and “accepted that it was possible, although she could not really say, that she looked at the Consent to Act rather than the Running Sheet to prepare the letter” (at [50]). He concluded that the Consent to Act provided a possible explanation for the reference to Mr Rambaldi in the minutes.

45    His Honour also acknowledged the possibility that the Consent to Act was the genesis of the minutes and the resolution put at the meeting. On that view, contrary to his Honour’s ultimate finding, Mr Turner, in putting the resolution, must have departed from the words of the Running Sheet and instead used the wording of the Consent to Act.

46    His Honour concluded that it was possible, but not probable, that Mr Turner had done so given that his usual practice was to rely on a running sheet and the handwritten annotations he made on the Running Sheet shortly prior to the meeting on this occasion. Further, it was improbable that any departure from the Running Sheet, or from Mr Bond’s expectation of the resolution to be put, would not have been reflected in the notes of Ms Lester or Mr Bond.

47    His Honour concluded at [53]:

Given the absence of any reference to Rambaldi in the contemporaneous records of the creditors’ meeting and in the running sheet and given the terms of the correspondence sent by Bond shortly after the meeting, the genesis for Rambaldi’s inclusion in the minutes is more likely to be the result of a mistake by Lester, made after the meeting, than anything said or resolved during the meeting. The lateness in the preparation of the minutes, the scant notes taken by Lester and the other difficulties with the minutes (to which I have earlier referred), all support that conclusion.

48    His Honour also recognised that on various occasions after November 2007, Messrs Yeo and Rambaldi described themselves as joint trustees of the bankrupt estate. A Federal Court proceeding was issued by Messrs Rambaldi and Yeo (for which Mr Bond acted) “as joint and several trustees” and Mr Yeo, in an affidavit sworn on 5 September 2008, also described them thus. Mr Bond deposed that Mr Yeo instructed him to commence the 2007 proceeding, but he took no notice of Mr Rambaldi’s inclusion as a named trustee as it was of no significance to him. His Honour observed that the inconsistency was not surprising, given the conflicting advice Messrs Rambaldi and Yeo had received in earlier correspondence and the resultant confusion was not instructive as to who was appointed as Mr Weeden’s trustee.

49    Ultimately, his Honour accepted the respondents’ submission that although the minutes were prima facie evidence of the passage of the resolution for their joint appointment, it was rebutted by other evidence.

50    His Honour concluded that the resolution passed at the meeting was, on the balance of probabilities, to the effect that Mr Turner be removed as the trustee of the bankrupt estate of the appellant and that only Mr Yeo be appointed to replace him. His Honour held that, consequently, the objections to the appellant’s discharge from bankruptcy and the notices of contribution assessment were not invalid.

The Appellant’s submissions

51    The appellant submitted that the primary judge made a number of fundamental errors in his treatment of the evidence. Most importantly, the appellant alleged that his Honour treated the signed minutes as of merely equivalent or similar weight to other circumstantial evidence, and failed, contrary to the approach endorsed in Hellicar, to accord them due weight as prima facie evidence of the passage of the resolution they recorded.

52    In numerous particulars in the amended notice of appeal and in written submissions, the appellant alleged that his Honour disregarded or insufficiently weighed some evidence, failed to rule on objections, relied on inadmissible evidence, placed excessive weight on other aspects of the evidence, made assumptions which depended on facts not in evidence, made material mistakes about the evidence, and reached an erroneous conclusion based solely on an inference that the respondents’ advocated version of events was more likely, in order to rebut the prima facie evidence of the minutes.

Australian Securities and Investments Commission v Hellicar (2012) 286 ALR 501; [2012] HCA 17

53    In Hellicar, on which the appellant particularly relied, the High Court held that the Court of Appeal erred in holding that the Australian Securities and Investments Commission (“ASIC”) had not established that a misleading announcement to the Australian Securities Exchange (“ASX”) was tabled at a February board meeting of James Hardie Industries Ltd (“the company”) and approved by the directors (including the respondents). The minutes of the February board meeting (confirmed at a subsequent April board meeting) recorded that the draft announcement was tabled and approved.

54    The respondent directors contended that the minutes did not establish that the draft announcement was tabled and approved, in circumstances where ASIC’s witnesses had no actual recollection of the events of the meeting (which occurred seven years earlier) the minutes were demonstrably inaccurate in some respects and the company solicitor (who attended the meeting and supervised the preparation of the draft minutes) was not called to give evidence (at [2]).

55    The Court of Appeal noted that as there was evidence of the events of the meeting, such as the minutes, it was not strictly a case of circumstantial evidence. The Court of Appeal nevertheless adopted what it described as “a similar approach” and determined whether ASIC proved the passing of the draft ASX announcement resolution “from ‘the united force’ of all the evidence” (at [32], see Morley v Australian Securities and Investments Commission (2010) 274 ALR 205; [2010] NSWCA 331 (“Morley”) at [286]).

56    The Court of Appeal found that a number of witnesses had no actual recollection of what occurred at the meeting. While acknowledging that it could not reasonably be doubted that a draft announcement was taken to the meeting, a copy of the draft was given to two company solicitors, and that “[s]ome strength in ASIC’s case” lay in the minutes subsequently adopted by the board, the Court of Appeal observed that the relevant company solicitor was not called and concluded ASIC did not discharge its burden of proof (at [35] see Morley at [791]).

57    The High Court concluded that such an approach was erroneous, as it failed to accord due weight to the minutes in the circumstances. Although the Court of Appeal made a “minutely detailed examination…of all of the evidence” suggested to bear on what occurred at the meeting, “the matters … the … respondents pointed … [to] as bearing upon what should be found to have been said or done at that meeting were not of equal significance” (at [33]).

58    Although s 251A(6) of the Corporations Act 2001 (Cth) (a provision in similar terms to s 257 of the Bankruptcy Act) did not apply to the minutes, the High Court stated at [69] that the minutes of both the February and April board meetings were admitted as business records and were evidence of the truth of the matters that they represented.

59    The High Court noted at [73] that the force of the minutes of the April board meeting, the alterations to the announcement and the absence of evidence from the company solicitor “depended upon the proposition that the minutes were no more than one of several circumstances which bore upon the task of inferring (from the combined weight of the evidence) what had been said and done at the meeting”.

60    The High Court stated that ASIC did not have to prove at trial that the minutes were an accurate record. Rather, the ultimate issue was, having regard to the nature of claims, the nature of the subject matter of the proceeding and the gravity of the allegations, “did ASIC establish, on the balance of probabilities, that (as the minutes recorded) the…draft announcement was tabled and approved by the board?”

61    The High Court noted at [74] that “[t]he record of events at the February board meeting that was made closest to their occurrence was the minutes as they were adopted at the April board meeting” and also stated, at [75]:

What the respondents sought to establish was that other evidence founded an inference that the minute recording approval of a draft announcement was false. It was the respondents’ case that depended upon inference; ASIC’s case did not. Hence the need to start with the minutes. To treat the minutes, as the Court of Appeal did, as just one of a number of circumstances that bore upon the issue of fact failed to recognise the nature of the evidence that ASIC adduced and the nature of the argument that the respondents sought to advance.

62    The High Court considered that the evidence that the final ASX announcement was sent to the directors, who did not protest about its terms “supported ASIC’s case; at the very least, it did not show the minutes to be false” (at [137]).

63    The High Court stated at [138]:

The contrary conclusions reached by the Court of Appeal point to the fundamental difficulty in the court’s reasoning that has already been identified. Although, as noted earlier, the Court of Appeal recognised that this was “not wholly a case of circumstantial evidence”, much of the analysis of the evidence undertaken by the Court of Appeal treated the minutes as no more than one circumstance from which ASIC sought to have the court draw an inference that a draft announcement was tabled and approved. But the minutes were more than just one of several pieces of evidence from whose united force ASIC sought to have the tribunal of fact draw an inference. The minutes were a formal and near contemporaneous record (adopted by the board as an accurate record) of the proceedings at the meeting. The minutes were evidence of what they represented. They were more than a foundation for some further inference. Absent evidence to the contrary, ASIC proved its case by tendering the minutes and, through the evidence of Mr Baxter, identifying the document referred to as the “ASX Announcement”. Pointing to other ways in which events might have occurred did not, without more, falsify the minutes.

64    The High Court at [210]-[216] reasoned that a number of factors supported the probative force and accuracy of the minutes, including that:

(a)    the approval of the draft minutes at the April board meeting and the failure of a respondent director (who was not present at that meeting but typically read the board papers) to protest;

(b)    the company solicitor settled documents described as “board minutes”, which probably included those of the February meeting and there was no evidence that he disapproved them, “and that is further support for their probative weight” (at [211]);

(c)    there was no evidence that any member of the company’s management disapproved the minutes and evidence that several did not disapprove them (at [212]);

(d)    there was also an “urgent need to make a decision” at the February meeting (at [213]); and

(e)    the directors failed to protest about the terms of the final ASX announcement, which were, in substance, the same as those of the draft announcement (at [215]).

65    The High Court concluded at [216]:

Finally, the probative weight of the minutes is supported by the circumstances leading up to the meeting. That meeting may have been the most significant in the company’s history. The company in question was one of the largest and most important in the country. The directors knew that hostile critics would closely scrutinise the decision and company statements associated with it. They were acting in circumstances of extreme urgency. There was no legal capacity to resolve that there should be separation without announcing that fact to the ASX. There was no commercial point in resolving on separation without announcing that fact. And there was no commercial point in any announcement unless an assurance of sufficient funding for asbestos claims was given. To resolve that there should be separation without announcing any such assurance would create only damaging controversy from “hostile and emotional stakeholders” and “asbestos-related spoilers”. The draft announcements in the hands of management on 14 and 15 February 2001, the last of which was taken into the meeting as the 7.24 am Draft Announcement, spoke of sufficient or full funding for all legitimate claims. Taken together, these circumstances comprised immensely powerful evidentiary support for ASIC’s case.

the primary judgment is correct

66    In our opinion, contrary to the appellant’s submissions, the conclusions his Honour reached were not only open to him on the evidence but, in our view, were strongly supported by it.

67    Far from treating the minutes as merely one of a number of circumstances which might support an inference, his Honour (at [16]) expressly regarded the minutes as the starting point and acknowledged their special status as prima facie evidence. Nor did his Honour in substance depart from or misapply the principles he correctly articulated. To the contrary, his analysis was consistently informed by them.

68    The minutes were signed by Mr Turner, the chairman of the meeting, as required by s 64Z(10) of the Bankruptcy Act. They did not, however, comply with other requirements of s 64Z, as they were not signed by Ms Lester (the minutes secretary) in accordance with s 64Z(10), and did not record the precise words of each motion proposed or of any amendment, as required by s 64Z(4). Further, the date on which the Chairman signed the minutes (which, under s 64Z(10), must be no later than 14 days after the meeting) was unknown.

69    His Honour accepted that, as was common ground, s 257 of the Bankruptcy Act applied to the minutes, and consequently, despite the non-compliance with s 64Z of the Bankruptcy Act, treated them as prima facie evidence of the proceedings at the meeting. As that approach was unchallenged on appeal, it is unnecessary to consider whether any non-compliance potentially excluded the application of s 257 of the Bankruptcy Act.

70    His Honour carefully, scrupulously and fairly considered the minutes and the other items of evidence. In Hellicar, the High Court designated the minutes “the starting point” because they constituted an admissible business record, the accuracy of which was challenged only by inference. In this case, in accordance with s 257 of the Bankruptcy Act, his Honour treated the minutes as the starting point of his analysis and as prima facie evidence which, if standing alone, would be conclusive. The nature, quality and combined effect of the contrary evidence, however, entitled his Honour to conclude, as he did, that it rebutted the prima facie evidence constituted by the minutes that a resolution was passed for the appointment of Messrs Rambaldi and Yeo as joint trustees.

71    The sole ground of appeal was amplified by voluminous particulars, the emphasis on which shifted between the appellant’s written and oral submissions. We consider the most significant bases of complaint in detail below.

72    In the amended notice of appeal, the appellant alleged that his Honour replicated the error identified in Hellicar by treating the minutes as merely one piece of circumstantial evidence and failing to accord them their due weight as prima facie evidence.

73    In written submissions, the appellant contended that his Honour erred in stating that Mr Bond’s facsimiles were prepared within two hours of the meeting and, further, in finding that only those documents were prepared within hours of the meeting because the minutes and the letter prepared by Ms Lester were also prepared in that timeframe. The appellant submitted that such errors led his Honour to place excessive weight upon only half of the most contemporaneous circumstantial evidence.

74    Before us, however, the appellant conceded that his Honour did not err in finding that Mr Bond’s facsimiles referring to the appointment of Mr Yeo as sole trustee were sent within two hours of the meeting.

75    Further, it was not disputed that the minutes were not prepared by Ms Lester within hours of the meeting. Rather, as his Honour found, they were prepared over the course of the day of the meeting and the three following days; and although Ms Lester’s timesheets indicated that she spent most time on the minutes on the first day, it was not possible to identify the date on which Ms Lester inserted any particular item, including the description of the resolution. As stated above, there was no evidence to establish on what date Mr Turner signed the minutes, although, on any view, it was no earlier than 22 March 2007, at least three days after the meeting.

76    In such circumstances, the minutes did not possess evidenced contemporaneity equivalent to that of the facsimiles sent by Mr Bond. His Honour was fully entitled to attribute more weight to the latter on the basis of their materially greater demonstrated contemporaneity with the events described. Moreover, according to the uncontradicted evidence of Mr Yeo, Mr Turner’s letter, although dated 19 March 2007, was date stamped (and by inference received by Mr Yeo’s office) on 27 March 2007, which was over a week after the meeting. Accordingly, the evidence did not establish that the letter was prepared or completed on 19 March 2007, rather than some days thereafter.

77    It follows that the equivalent contemporaneity of the minutes and the letter with Mr Bond’s facsimiles, on which the appellant’s principal allegation depended, was not established. Accordingly, his Honour did not err by attributing excessive weight to only half of a number of equally contemporaneous documents. Nor did his Honour err in failing to accord greater weight to the minutes because Ms Lester and Mr Turner had “a fresh memory” when they respectively prepared and signed them.

78    The appellant also alleged that his Honour erred in failing to accord greater weight to the evidence of subsequent conduct by Messrs Yeo and Rambaldi, which was consistent with their joint appointment. The appellant relied, in that context, on an affidavit of Mr Yeo, in a proceeding (in which Mr Bond acted for the first and second respondents) eight months after the meeting, where Mr Yeo at one point deposed that he was a joint trustee with Mr Rambaldi and at another point, that they were joint and several trustees (emphasis added). The subsequent descriptions did not consistently accord with the resolution for joint trustees recorded in the minutes. Moreover, the significance of descriptions adopted by Messrs Yeo and Rambaldi was limited, as, in contrast to Hellicar, they were not present at the meeting and were not provided with a copy of the minutes which they adopted or confirmed. The relevant descriptions were made some months after the meeting in an unrelated context. The confusion was, as his Honour observed, explicable by the inconsistent communications the respondents had received. They had no reason, prior to the appellant’s challenge, to disavow their alleged joint appointment. Mr Bond (who was present at the meeting and acted for Messrs Yeo and Rambaldi in the subsequent legal proceeding) advanced a plausible explanation for his failure to notice the designation of “joint” or “joint and several” trustees, which his Honour was entitled to accept.

79    As the appellant alleged, his Honour did not determine the appellant’s objection to the admission of Ms Lester’s statement that she could not exclude the possibility that in preparing the letter to Messrs Yeo and Rambaldi, she looked at the Consent to Act rather than the Running Sheet. Nevertheless, the oversight had no material effect, as his Honour did not err in failing to exclude the statement. The basis of the appellant’s objection was that the statement constituted an answer to a leading question. Before us, however, the appellant acknowledged that statement was not adduced in response to a leading question. It was contained in an affidavit on which Ms Lester was not cross-examined. No evidence of the circumstances of its inclusion in the affidavit was adduced.

80    Therefore, the basis of the objection was not established. More importantly, Ms Lester’s statement merely provided context for the first and second respondents’ advocated explanation for the appearance of Mr Rambaldi’s name in the minutes, which was a peripheral issue. His Honour’s finding that Ms Lester probably drafted the minutes in large part by reference to the Running Sheet (at [41]) did not depend on the impugned statement. Ms Lester’s uncontradicted evidence was that she prepared the minutes by reference to her recollection, her notes and some or all of the documents on the Weeden file, which included the agenda, the Running Sheet, the Consent to Act and the letter to Messrs Yeo and Rambaldi, which she drafted on 19 March 2007. Ms Lester’s potential reliance on the Consent to Act in preparing the letter to Messrs Rambaldi and Yeo was not material to his Honour’s conclusion that the minutes were largely based on the Running Sheet, which was founded on his detailed comparison of the two documents.

81    Nor, in our view, did his Honour err in failing to exclude Mr Bond’s statement that he did not notice that Mr Rambaldi signed the Consent to Act, or by materially misunderstanding and misstating the effect of that evidence.

82    The appellant objected to the admission of the statement, which appeared at paragraph 8 of Mr Bond’s affidavit as follows:

On 2 March 2007, I received a letter from Pitcher Partners dated 22 February 2007, signed by both Mr Yeo and Mr Rambaldi, enclosing a Consent to Act and Trustee Declaration signed by Mr Yeo on 24 February 2007 and by Mr Rambaldi on 26 February 2007. I infer that the dating of the letter was an error and that it should have been dated 26 February 2007 or later. I did not take any notice of the fact that the consent was signed by both Mr Rambaldi and Mr Yeo. My attention was focused on the fact that Mr Yeo was willing to act as trustee of the bankrupt estate as I had requested. I did not make any enquiry about why Mr Rambaldi had signed the consent as well, because it was not a matter that seemed to me to be of any importance and I saw no significance in the fact that Mr Rambaldi had signed the consent as well.

83    At [37], his Honour stated:

Bond’s evidence was that he had not noticed that the document [the Consent to Act] contained the consent of both Rambaldi and Yeo.

84    The appellant submitted that his Honour failed to determine the objection and wrongly admitted evidence of Mr Bond’s state of mind, the misunderstanding of which led him erroneously to conclude that the Consent to Act did not inform the conduct at the meeting. Assuming that his Honour failed to understand that Mr Bond was aware that the Consent to Act was signed by both Messrs Yeo and Rambaldi, we were not persuaded that his Honour’s conclusion was, or could reasonably have been influenced by that misapprehension. In our opinion, any distinction between, on the one hand, Mr Bond’s failure to notice that Mr Rambaldi had also signed the Consent to Act and, on the other hand, his failure to take notice of that fact was, in context, immaterial. The thrust of Mr Bond’s evidence was that he observed that Mr Rambaldi signed the Consent to Act, but attached no significance to it, as he was focused only on obtaining Mr Yeo’s consent to act, in accordance with his request. In such circumstances, knowledge that Mr Bond was aware that Mr Rambaldi had signed the Consent to Act cannot have altered his Honour’s conclusion that the latter document did not inform the events of the meeting, and, in particular, the terms of the resolution which was put and passed.

85    In our view, his Honour did not err in admitting Mr Bond’s evidence and did not, as a matter of substance, misstate its effect. Moreover, the admission or any such misstatement of the evidence was not relevant to the decision.

86    The appellant further alleged that his Honour erred in the weight he attributed to numerous other aspects of the evidence. In our opinion, none of the alleged errors was established. The appellant submitted that given the documentary nature of much of the evidence, the limited cross-examination and the relatively short trial, this court was in as good a position as the trial judge to assess the evidence. In an appeal by way of rehearing, the appellant bears the onus of persuading the appellate court that the decision below was wrong, although it is unnecessary to identify specific error (see Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; [2007] VSCA 267). The appellate court (subject to due regard to the decision and advantages of the primary judge) may be required to decide the case for itself and, where appropriate, draw its own inferences from established facts (see Warren v Coombes (1979) 142 CLR 531 at 551-552). The traditionally uncritical deference of appellate courts to the trial judge’s assessment of witnesses has been modified (see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 and CSR Ltd v Della Maddalena (2006) 224 ALR 1; [2006] HCA 1). The weight to be given to the trial judge’s decision will vary from case to case (see Optical 88 Ltd v Optical 88 Pty Ltd (2011) 197 FCR 67; [2011] FCAFC 130 at [31] per Cowdroy, Middleton and Jagot JJ). It nevertheless remains difficult to establish error in the weighing of evidence.

87    In this case, it is unnecessary to determine whether the advantages of the trial judge were such as to inhibit the appellate court from making and reaching its own conclusions on its own assessment of the evidence, as in our view, the primary judge’s assessment was compelling. We consider the appellant’s principal subsidiary complaints below.

88    In particular, we were persuaded that despite Ms Lester’s non-compliances, his Honour accorded the minutes the status required by s 257 of the Bankruptcy Act, and did not, as the appellant alleged, err in the weight he accorded that aspect of her conduct.

89    Contrary to the appellant’s submissions, his Honour was also entitled to accord the significance he did to the usual practice of Messrs Turner, Bond and Ms Lester, including when evaluating the relevance of the absence of notations on, departure from, or amendment of, the resolution notified to creditors.

90    We reject the appellant’s submission that his Honour overlooked the improbability, on which his conclusion depended, of a mistake by experienced professional persons such as Mr Turner and Ms Lester. His Honour was, in our view, entitled to conclude that the error on the part of Mr Bond (the solicitor who initiated and was driving the replacement of Mr Turner by Mr Yeo) was more improbable.

91    His Honour did not, as the appellant alleged, err in the weight he accorded to the content of the Running Sheet or the errors in the minutes. His observation that Mr Bond was an experienced commercial solicitor (made in the context of noting that each person present would have had previous experience of creditors’ meetings and there was no evidence that they regarded this meeting as extraordinary) was not, in our view, an unsafe assumption or a valid basis of complaint. The appellant did not in fact dispute that Mr Bond was an experienced commercial solicitor, or lead evidence to the contrary.

92    Nor, in our view, did his Honour base an “unsafe assumption” about Mr Bond’s standards of record keeping on his status as an experienced insolvency solicitor or make an unsafe assumption that, in the absence of a record, Mr Bond would not have proposed last-minute amendments to the resolution. Rather, his Honour in essence reasoned that if there had been a material departure from the resolution originally proposed by Mr Bond, as reflected in the agenda, it would probably have been documented in some way.

93    In our opinion, the appellant’s allegations of error were frequently based on inaccurate characterisation, selective reading of the reasons and exaggerated criticism of peripheral or trivial matters, which did his argument no credit. Further, the appellant frequently mischaracterised as speculation his Honour’s legitimate drawing of inferences from the evidence.

94    Finally, we observe that the appellant’s reliance on Hellicar was, in the markedly different circumstances of the present case, misplaced. In Hellicar, the minutes were the only evidence of the events of the meeting, and their accuracy was challenged solely on the basis of inference drawn from the circumstances. In contrast, in this case, there was a considerable volume of additional evidence, much of it documentary, which conflicted with, or cast doubt on, the accuracy of the minutes.

95    In our opinion, Hellicar does not preclude, but rather requires, in a case such as the present, the qualitative weighing up of all the evidence, including that in conflict with the minutes. While in Hellicar, no statutory provision equivalent to s 257 of the Bankruptcy Act applied, the High Court reaffirmed and amplified the established proposition that prima facie evidence will, unless rebutted by other evidence, be determinative, and is not on a footing with mere inference drawn from circumstance. Hellicar does not, however, in a case where there is additional conflicting evidence, require the attribution of greater weight to evidence merely because it is of a prima facie character.

Conclusion

96    In our opinion, the appeal should be dismissed.

97    The Court will direct that the parties confer, and in the event of agreement, file and serve within 14 days joint proposed minutes of orders (including as to costs) reflecting these reasons. In the event that the parties cannot agree as to the appropriate minutes of orders, each party is to file and serve within 14 days proposed minutes of orders and short written submissions in support of such proposed orders. In view of the conclusions of the Court, an issue arises whether costs should be paid by the appellant, or whether they should be paid out of the bankrupt estate. The parties should consider this issue in the course of providing the proposed minutes of orders to the Court.

Associate:

Dated:    12 February 2013