FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Storm Financial Limited (Receivers and Managers Appointed) (in liq) (No 6) [2012] FCA 996

THE COURT ORDERS THAT:

1.    Paragraphs 5 (second sentence), 10, 11, 12, 13, 15, 21, 22 and 23 of the outline of the anticipated evidence of Angela Winton, filed by the plaintiff on 13 April 2012, are disallowed.

2.    Paragraphs 5 (balance thereof), 6, 7, 8, 9 and 25 of the outline of the anticipated evidence of Angela Winton, filed by the plaintiff on 13 April 2012, are allowed.

3.    Paragraphs 14, 16, 17, 18, 19, 20 and 24 are disallowed, with the exception that they may be relied upon insofar as they contain evidence of the provenance of any documents referred to therein, which documents may be tendered separately.

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

EX TEMPORE REASONS FOR RULING

MACQUARIE’S OBJECTIONs

1    Macquarie Bank Limited (MBL) is the fourth respondent in these regulatory proceedings brought by the Australian Securities and Investments Commission (ASIC). It has objected to paragraphs 5 to 25 of the outline of the anticipated evidence of Ms Angela Winton served by ASIC. However, during oral submissions, Mr Sheahan SC, for MBL, indicated that some of these objections were no longer pressed.

2    Ms Winton was a Division Director at Macquarie Relationship Banking. The sole ground of objection raised by MBL is that, contrary to the requirements of ss 55 and 56 of the Evidence Act 1995 (Cth), none of the identified paragraphs of Ms Winton’s outline of evidence is relevant to any issue in the case ASIC has pleaded against MBL. Specifically, MBL claimed that Ms Winton’s evidence is not relevant to ASIC’s case as it relates to MBL’s knowledge of the managed investment scheme allegedly promoted by Storm Financial Limited (Storm Scheme).

3    Mr Sheahan submitted that the particularised allegations in ASIC’s third further amended statement of claim that relate to Ms Winton are limited to a period in 2006, and yet the identified paragraphs of Ms Winton’s outline of evidence detail her alleged knowledge at various times between 2000 and 2005. The paragraph of ASIC’s third further amended statement of claim which particularises Ms Winton’s knowledge of the Storm Scheme is para 36(xv)(E). Mr Sheahan is correct in submitting that the allegations about Ms Winton’s knowledge in that paragraph only refer to dates in 2006.

ASIC’S pleading of the relevant knowledge

4    Mr Chesterman, for ASIC, submitted that the paragraphs in Ms Winton’s outline of evidence that MBL objected were relevant to ASIC’s pleaded case. In support of this submission, he pointed to paras 36(xia), 36(xii), 36(xiva) and 37(xix) of ASIC’s third further amended statement of claim.

5    Paragraph 36(xia) names the officers of MBL that allegedly held the relevant knowledge. Ms Winton is included. However, in that paragraph no time period is specified during which she was said to hold the relevant knowledge. Instead, that is done, in general terms, in para 36(xii), which identifies a period between 2001 and 2007 when MBL, or its associated entity, Challenger Limited, provided margin loans to Storm Financial Limited (Storm) investors. Ms Winton is not mentioned in that paragraph and nor is any other officer of MBL. Paragraph 37(xiva) provides particulars of the knowledge of the Storm Scheme allegedly held by another MBL officer, Ms Lester, in the period from 2001 until early 2007.

6    Paragraph 36(xiva) is immediately followed by para 36(xv). Paragraph 36(xv) sets out the particulars of the knowledge held by eight of the MBL officers identified in para 36(xia), including Ms Winton. Paragraph 36(xv) also provides details of the time periods during which the eight MBL officers had the alleged knowledge of the Storm Scheme.

7    The pleading therefore appears to be structured as follows:

(a)    it identifies the MBL officers who held the relevant knowledge;

(b)    it identifies the period during which a relationship existed between MBL and Storm in general terms; and

(c)    then it identifies the relevant knowledge held by each officer and the time period during which that knowledge was held by each officer.

8    The final paragraph relied upon by Mr Chesterman is para 37(xix). That paragraph identifies the alleged knowledge held by Ms Winton and a number of other MBL officers in relation to the approach taken by investors to their investments in Storm. The period during which that knowledge was held is not specified.

9    It can been seen from this brief examination of the paragraphs relied upon by Mr Chesterman that none of these paragraphs specifically identifies any relevant knowledge held by Ms Winton in the period between 2000 and 2005.

10    In an attempt to counter this, Mr Chesterman provided a number of examples from Ms Winton’s outline of evidence where the period during which she held the alleged knowledge is specified. One example of this will suffice. Paragraph 13 of Ms Winton’s outline essentially describes the knowledge particularised in para 37(xix) of the third further amended statement of claim discussed at [8] above. In that paragraph, it is said that Ms Winton was aware of those matters in 2001.

11    Finally, Mr Chesterman submitted that MBL’s objections should not be treated as objections to evidence, but rather as a request for further and better particulars.

12    In my view, all of Mr Chesterman’s submissions must be rejected.

The history surrounding THIS ISSUE

13    It is helpful to begin with some general observations about the nature of these proceedings and some of the history of the pre-trial management of these proceedings. First, the trial of this matter involves three proceedings, with three separate sets of pleadings. It follows that numerous legal and factual issues have been raised that will have to be addressed at the trial. Some of those issues will overlap; some will be common issues; and some will be discrete to each set of proceedings. Given this, both close case management and close trial management is called for, to ensure that the issues are clearly defined and that the evidence is properly confined to the issues pleaded in one or other of the proceedings.

14    MBL’s knowledge of Storm’s alleged promotion of an unregistered managed investment scheme in contravention of the Corporations Act 2001 (Cth) is one of the central elements of ASIC’s case against MBL. As a corporation, that knowledge could only be held by its human agents, namely its officers. It was therefore incumbent upon ASIC to particularise precisely which of MBL’s officers are alleged to have had the requisite knowledge, what that knowledge was, how it was obtained and when that knowledge was held. Apart from anything else, ASIC was required to do this in order to comply with Rule 16.43 of the Federal Court Rules 2011, which provides:

(a)    A party who pleads a condition of mind must state in the pleading particulars of the facts on which the party relies.

(b)    If a party pleads that another party ought to have known something, the party must give particulars of the facts and circumstances from which the other party ought to have acquired the knowledge.

(c)    In this rule:

condition of mind, for a party, means:

(a)    knowledge; and

(b)    any disorder or disability of the party’s mind; and

(c)    any fraudulent intention of the party.

15    This is what ASIC has endeavoured to do in the paragraphs of the third further amended statement of claim to which I referred earlier. But it is important to record, as Mr Sheahan pointed out, that those paragraphs have a particular history. On 3 February 2011, in one of the early pre-trial directions hearings for these proceedings, ASIC told me that it was content to limit itself to the knowledge case against MBL as pleaded in paras 36 and 37 of its then current version of its statement of claim. This position was taken notwithstanding concerns MBL expressed about the vagueness of the case ASIC had pleaded in those paragraphs. On 1 March 2012, ASIC reversed that position and sought leave to amend its statement of claim to change aspects of its knowledge case against MBL. During the debate surrounding that application there was a lengthy exchange between myself and Mr Strong, who appeared for ASIC, regarding the various paragraphs of the statement of claim where ASIC’s knowledge case against MBL was pleaded. The discussion that led up to this exchange related to paras 17 and 43 of the statement of claim, and their link with paras 36 and 37 mentioned above. The exchange then proceeded as follows:

HIS HONOUR: Well, let me tell you what I understand you to be saying about the knowledge matters. It relies upon, specifically, the dealings that are set out in 36.

MR STRONG: Yes.

HIS HONOUR: And you’re not intending to expand the knowledge case beyond those particulars by referring to “at all material times” in other paragraphs.

16    I interpolate that this was an issue raised in relation to one of the paragraphs discussed in the period leading up to this exchange. The response was:

MR STRONG: No. The references to “at all material times” in other paragraphs don’t expand what 36 alleges.

HIS HONOUR: You’re bound by the particulars that you provided in [36].

MR STRONG: Yes.

17    Later, the following discussion regarding paragraphs 6B, 7, 7A, 18,19, 41 and, again, 36 and 37 occurred:

HIS HONOUR: The only way that any company can gain knowledge is via its officers.

MR STRONG: Yes. That’s true.

HIS HONOUR: So is that allegation of knowledge limited to the officers and circumstances pleaded in [36] and [37]?

MR STRONG: Yes.

18    Leave was subsequently granted to ASIC to file a second further amended statement of claim. The second further amended statement of claim was delivered on 10 April 2012 and included most of the subparagraphs of paras 36 and 37 that are now in contention. The subparagraphs of paras 36 and 37 therefore represent ASIC’s considered and re-pleaded knowledge case against MBL, including what Ms Winton knew, how she knew it and when she knew it.

19    Given this history and the discipline that is necessary to contain this trial within reasonable limits, I do not consider ASIC should be allowed to adduce evidence from Ms Winton, or any other witness for that matter, unless that evidence is directly relevant to an item of knowledge that has been clearly particularised in its further amended statement of claim. In my view, most of the paragraphs to which MBL has objected fall into that category.

20    Having made these general observations, I will turn to deal with the particular paragraphs objected to and address some of Mr Chesterman’s other submissions in the process. Each paragraph objected to will be addressed in order, commencing with para 5.

FINDINGS

21    I was told in submissions that the second sentence of para 5 is admitted and is not therefore necessary. On that basis, that is disallowed.

22    The objections to paras 6 to 9 inclusive are not pressed, so they are allowed.

23    I have been informed that para 10 contains background material. Paragraph 10 will therefore be disallowed as unnecessary, and not directly relevant to a particular issue as pleaded in ASIC’s case. This is an example of the strict control I consider is necessary in this case to confine the evidence to manageable limits. If this background material is particularly important to ASIC, it should be included in the agreed chronology that the parties are to supply prior to the trial.

24    The same observation applies to the background material in paragraph 21. That will also be disallowed.

25    Paragraphs 11, 12 and 17 to 20 relate to, in broad terms, Ms Winton’s dealings with another MBL officer, Ms Lester. Those paragraphs do not particularise any knowledge held by Ms Winton. Ms Lester can give evidence about her knowledge, and no reason has been given as to why it is necessary for Ms Winton to provide what is, in effect, peripheral supporting evidence about her relationship with Ms Lester. This evidence is in a similar category to the background material discussed at [20] above. If this kind of peripheral supporting evidence is permitted to be given by witnesses, the evidence in this case will extend beyond manageable limits. Subject to some comments I will make below about the provenance of documents, those paragraphs are therefore disallowed.

26    The same applies to the similar evidence relating to Ms Winton’s dealings with Mr Mickey Perrett, set out in paras 22 and 23. These paragraphs also appear to contain peripheral supporting evidence and no particular reason has been given as to why such evidence is necessary. Those paragraphs are therefore disallowed.

27    Paragraph 13 is an example of the limitation I discussed with Mr Strong on 1 March 2012 (see [16] above). That is, that ASIC’s knowledge case is limited to the officers and circumstances pleaded and particularised in paras 36 and 37. If ASIC wanted to rely upon the knowledge Ms Winton had in 2001 about the particular matters identified in that paragraph, it should have particularised that in its statement of claim. ASIC has not done that and it cannot be permitted to, in effect, expand its particularised case by serving evidence that goes beyond it. It is, of course, open to ASIC to apply to amend its further amended statement of claim to make those allegations, and if it does that, its application will be dealt with on its merits. However, on ASIC’s current pleading, para 13 must be disallowed.

28    Paragraphs 14, 16 to 20 and 24 (paras 16 to 20 are also discussed above at [25] in a different context) are paragraphs that, in part at least, appear to identify the provenance of various documents that Ms Winton either authored, or received from other persons. The admissibility of documents is to be dealt with in a separate process. Insofar as it is necessary for the purposes of that process to rely on the provenance information in those paragraphs, I will allow this to that limited extent. Otherwise the commentary in those paragraphs about what the documents contain is unnecessary; the documents can speak for themselves. With these qualifications, those paragraphs are disallowed.

29    Paragraph 15 appears to be unnecessary, as it recounts the contents of the email referred to in para 14. It should be disallowed for the same reason.

30    The objections to para 25 are not pressed, so para 25 will stand.

Associate:

Dated:    12 September 2012