Reid v Australian Securities and Investments Commission [2006] FCAFC 185 (4 December 2006)

Last Updated: 15 December 2006

FEDERAL COURT OF AUSTRALIA

Reid v Australian Securities and Investments Commission [2006] FCAFC 185

MAXWELL JOHN REID v AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION
SAD 124 OF 2006

TAMBERLIN, NICHOLSON, TRACEY JJ
4 DECEMBER 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 124 OF 2006

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

BETWEEN:	MAXWELL JOHN REID Appellant
AND:	AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION Respondent

JUDGES:	TAMBERLIN, NICHOLSON, TRACEY JJ
DATE OF ORDER:	4 DECEMBER 2005 6
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appellant file and serve an amended, fully particularised notice of appeal setting out the grounds which are pressed, together with a draft index of appeal papers by 5:00 pm on 14 December 2006.

2. In the event that the appellant does not complete these steps by 5:00 pm on 14 December 2006, the matter stands dismissed.

3. In the event that the steps are completed by 5:00 pm on 14 December 2006, a case management conference be listed before Tracey J by videoconference to Melbourne at 11:00 am on 19 December 2006 (SA time).

4. The matter be set down for hearing in Adelaide on 7 March 2007 at 9:30 am (SA time).

5. Costs of this application be borne by the appellant on a party-party basis.

THE COURT NOTES THAT:

6. In relation to the question of appeal papers, the parties will include only that material which is essential and adopt a reasonable approach as to the volume of material produced.

7. Counsel for the appellant has indicated to the Court, without any qualification, that within 10 days he will be in a position to prepare the draft index of the materials to come before the Court on the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 124 OF 2006

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

BETWEEN:	MAXWELL JOHN REID Appellant
AND:	AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION Respondent

JUDGES:	TAMBERLIN, NICHOLSON, TRACEY JJ
DATE:	4 DECEMBER 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT:

1 In this matter, the Court has had an opportunity to consult and consider the Notice of Motion filed by the respondent on 9 November 2006. Having given consideration to the matter, the Court is not prepared to strike out or dismiss the proceedings on the merits at this point. The Court thinks there may be points which could be arguable on an appeal and for that reason the Court thinks the appropriate course is to ensure the matter comes on at the earliest possible hearing. For that purpose, the Court will impose a strict peremptory timetable.

2 The Court orders that within 10 days, the appellant should file and serve an amended, fully particularised Notice of Appeal setting out the grounds which are pressed, together with a draft index of appeal papers.

3 In the event that that is not done by 5 pm on 14 December 2006, the matter will stand dismissed. The Court further orders that if and when that order has been complied with, a case management conference will be held before Tracey J by video link to Melbourne on 19 December 2006 at 11 am (SA time). The purpose of that conference will be to determine and finally settle the index papers.

4 The matter will be set down for hearing in Adelaide on 7 March at 9.30 am (SA time).

5 I might indicate to the parties that the reason for adopting this approach is that the Court is of the opinion that some of the matters raised may have some prospect of success, although at this stage it is impossible to tell whether this is the case due to the lack of co-operation on the appellant's part in relation to the preparation of the index.

6 These orders provide yet one more opportunity for all issues in relation to the index to be addressed and determined at the case management conference with Tracey J on 19 December 2006. We believe that this time-frame allows sufficient time for the appeal papers to be prepared. The Court also wishes to indicate to the parties that when they are approaching the question of the appeal papers, they should have an eye to what is essential for that purpose and adopt a reasonable approach as to the volume of material which is produced. This, of course, will be resolved at the settling of the index. We also note that counsel for the appellant has indicated to the Court, without any qualification, that within 10 days he will be in a position to prepare the draft index setting out the contents of the material which is to come before the Court on the hearing of the appeal.

7 So far as costs are concerned, we consider that the costs of this application and the hearing today before the Court should be borne by the appellant on a party/party basis. We have given thought to imposing a costs order on an indemnity basis. However, in all the circumstances, we consider that a party/party basis is appropriate, although the issue of indemnity costs is not a matter that has escaped our attention. In the Court’s view, these proceedings have an extremely unsatisfactory history evidencing a significant and repeated lack of compliance with Court directions and Court rules, as well as a lack of co-operation.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Nicholson and Tracey.

Associate:
Dated: 13 December 2006

Counsel for the Applicant:	Mr. G Mancini
Counsel for the Respondent:	Mr. M. Hoffman QC
Solicitor for the Respondent:	Australian Securities and Investments Commission
Date of Hearing:	4 December 2006
Date of Judgment:	4 December 2006