FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Australian Property Custodian Holdings Ltd (Receivers and Managers Appointed) (in liquidation) (Controllers Appointed) (No 2) [2012] FCA 1077

THE COURT ORDERS THAT:

1.    The costs of the application to transfer the proceeding to the Supreme Court be costs in the cause.

2.    The trial date is fixed on 1 May 2013, on an estimate of four weeks.

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

REASONS FOR JUDGMENT

Costs of the transfer application

1    In my judgment rejecting the defendants’ joint application to transfer this proceeding to the Supreme Court of Victoria (Australian Securities and Investments Commission v Australian Property Custodian Holdings Ltd (Receivers and Managers Appointed) (in liquidation) (Controllers Appointed) [2012] FCA 1051) I indicated that I would make an order that the defendants jointly pay the plaintiff's costs unless I received submissions to the contrary.

2    The second to sixth defendants have now filed submissions opposing an order that they jointly pay the plaintiff's costs. ASIC and the first defendant did not make submissions. The second to sixth defendants submit that the sole reason for their transfer application was ASIC’s unexplained decision to commence the Penalty Proceeding (as previously defined) in the Federal Court, rather than in the Supreme Court where the Compensation Proceeding (as previously defined) was already on foot. They argue that in those circumstances a fair price for ASIC’s choice to issue in this Court is that it should have to bear its own costs. They do not seek an order that ASIC pay their costs of the transfer application, only that it meet its own.

3    I do not accept that ASIC should be required to pay any “price”, as the defendants put it, for its decision to commence this proceeding in a competent court of its choosing. It is entitled to make that choice and should not be penalised for doing so.

4    However, as I accepted in my judgment on the transfer application, the authorities refer to the desirability of parallel proceedings being determined in the one forum so that they may be heard together or by the same judge. There was nothing inappropriate or misconceived in the defendants’ application for transfer. There was a proper basis for it and the application required careful consideration.

5    I consider that the proper exercise of my discretion in relation to costs indicates that I should treat the costs of the application as costs in the cause.

The trial date

6    The capacity of this Court to provide an early hearing date was significant to my decision not to transfer this proceeding. Senior Counsel for ASIC estimated that it may be able to serve the evidence upon which it relies by late December 2012, but it could take up to a further three months. He informed me that the matter would be ready for trial in about March or April 2013. Senior Counsel for the second defendant indicated that the matter would likely be ready for trial in about June 2013. Subject to submissions as to the date for hearing and the likely duration of trial I indicated an intention to fix the matter for hearing on 4 April 2013. If that date proved too soon for the parties then I indicated that dates in the first half of May 2013 were available.

7    ASIC now submits that the matter should not be fixed before the first half of May 2013. The second defendant filed submissions in which he opposes a trial date on 4 April 2013 as being too early and prejudicial to his interests. His submissions are adopted by all other defendants apart from the first defendant. He argues that ASIC commenced its investigation on about 4 April 2012 and yet at the hearing before me on 24 September 2012 it still required a further 3 to 6 months to make its evidence available to the Defendants. He also points to the Centro civil penalty proceeding as indicating that a longer timetable to trial is appropriate. He contends that the case should be provisionally fixed for hearing in September 2013, or in the alternative no earlier than the first half of May 2013.

8    I do not accept that this proceeding is similar to the Centro civil penalty proceeding in scope or size, or that the lengthly timetable in that matter need be replicated in this. While I do not pretend as yet to properly understand the size or scope of the case, the pleadings show that it relates to resolutions made by the directors of APCHL at a meeting of the company (or perhaps two meetings) which provided for payment of a Listing Fee if the company was floated. It appears unlikely to be a case of huge scope or size. I note also that in the transfer application Senior Counsel for APCHL informed me that the Compensation Proceeding was a documentary case and the evidence could be ready in that case before the end of the year.

9    However, I am concerned to ensure that the defendants are given adequate time to prepare their defence following the receipt of ASIC’s evidence. If, as the second defendant fears, ASIC does not deliver its evidence until late March 2013 it would be unfair for the trial to proceed in early April 2013.

10    I propose to fix the matter for hearing on 1 May 2013 on an estimate of four weeks. Fixing this trial date requires that I closely monitor ASIC’s progress in preparing and delivering its evidence. If the evidence is not delivered with sufficient time to enable the defendants to properly prepare and present their defences then the trial date will require to be moved. For completeness I also ask the parties to note my tentative view that if ASIC’s evidence was not served until late March 2013 a trial date of 1 May 2013 would also likely be unfair to the defendants.

11    If the date does require to be moved, the next available trial date would not be until 22 July 2013. Such an adjournment is undesirable given that the proceeding involves serious allegations of misconduct which should be expeditiously determined. However, maintenance of the trial date may in large part turn on ASIC’s ability to prepare its evidence and serve it upon the defendants expeditiously.

Case management

12    Although I declined the application for transfer I am concerned to avoid the expense of counsel being required to attend the Supreme Court for a directions hearing in the Compensation Proceeding on one date, and this Court for directions in this proceeding on another.

13    Accordingly, subject to submissions from the parties as to this approach, I will endeavour to timetable the directions hearings so that the directions hearings in the two courts are listed on the same day, with one occurring after the other. This may be achieved by cooperation between this Court and the Supreme Court, or simply by the parties agreeing to a schedule for directions hearings and arranging directions dates in both courts around that. While this approach may not always be possible or appropriate, with some flexibility by the parties it should be able to be done on many occasions. It should operate to reduce expense and wastage of time.

14    Would the parties please let me have short submissions by 4 pm on 4 October 2013 as to whether they are interested in taking this approach, and also as to any other case management suggestions in the particular circumstances of this case. I understand that a directions hearing is scheduled in the Supreme Court on 8 October 2012. The parties should also advise whether they seek a directions hearing in this proceeding on that date.

Associate:

Dated:    1 October 2012