Bhagat v Global Custodians Ltd [2002] FCA 1296

FEDERAL COURT OF AUSTRALIA

Bhagat v Global Custodians Ltd [2002] FCA 1296 HARI BHAGAT v GLOBAL CUSTODIANS LTD N496 OF 2002 EMMETT J 14 OCTOBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N496 OF 2002

BETWEEN: HARI BHAGAT

APPELLANT

AND: GLOBAL CUSTODIANS LIMITED

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 14 OCTOBER 2002

WHERE MADE: SYDNEY

THE COURT NOTES the undertaking of the appellant to pay the requisite filing fee, if any, payable in respect of the notice of motion heard today.

THE COURT ORDERS THAT:

1. leave be granted to file in Court the notice of motion of the appellant, in the form presented to his Honour to be made returnable instanter;

2. leave be granted to the appellant to file supplementary appeal books in the form of the five bundles of documents that were before Branson J on 24 May 2002, such bundles to be in the same form, including pagination, as they were before Branson J.

3. the supplementary appeal books be filed no later than 1 November 2002;

4. the costs of the motion be made costs of the appeal;

5. the notice of motion be otherwise dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N496 OF 2002

BETWEEN: HARI BHAGAT

APPLICANT

AND: GLOBAL CUSTODIANS LIMITED

RESPONDENT

JUDGE: EMMETT J

DATE: 14 OCTOBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 I have before me a motion brought by the appellant, Mr Hari Bhagat. The motion seeks the following orders: "(1) the Appeal Papers filed by the Respondent have deliberately excluded documents required to be included at the hearing of Fourth Further Amended Notice of Appeal. in [sic] order to ensure a miscarriage of justice, as the Court is entitled to consider not only the cases as disclosed at the time the Sequestration Order was made, but also as it would have been disclosed had all the true facts been before the Court on the making of the Sequestration Order; (2) the Respondent file fresh Appeal Papers and Index and Chronology in accordance with documents listed in the Applicant's letter dated 2 October 2002." 2 By his notice of appeal, the appellant appeals from the whole of the judgment of Branson J given on 24 May 2002. On that day Branson J made a sequestration order in respect of the appellant. The fourth further amended notice of appeal contains eleven grounds extending over eighteen pages. 3 An appeal management conference was listed for hearing on 4 July 2002 when there was no appearance by the appellant. A further conference listed for 26 July 2002 was vacated at the behest of the appellant. A third attempt was made on 2 August 2002 when a conference was conducted by Kavalaris DR. Again, the appellant chose not to attend. 4 The notes of the conference contain the following notations: "Respondent to file and serve an amended index in chronological list on or before 16/8/02. Solicitor for the respondent given permission pursuant to Order 46 rule 5(2A) to take the following documents out of the Registry subject to the usual conditions as to custody and return: Documents filed in N7379/01 & the exhibits." The notes indicate that the Appeal Books are to be prepared by copying on both sides of the page and that four copies are to be prepared for the Court together with one for the appellant and two for the respondent. A note appears in the Deputy Registrar's memorandum saying: "Note: Respondent is to prepare AB." 5 I have been informed by counsel for the respondent that the last note represents the record of a request made by the Registrar to the solicitor for the respondent that the respondent accept responsibility for the preparation of the Appeal Book by reason of the fact that the appellant is unrepresented. I am informed by counsel for the respondent that the respondent is anxious to have the matter disposed of. 6 The Registrar's memorandum of 2 August 2002 date also contains the following directions: "Direct the respondent to notify appellant of directions made today. Liberty to restore on 5 days notice. Direct the respondent to notify the appellant that should the appellant wish to rely on any additional material not included in the settled index, he should prepare a proposed index of the additional documents with written submissions as to why the documents should be included no longer than one page to be filed and served with liberty to apply on 5 days notice. Direct no supplementary Appeal Books to be filed without leave being given." 7 On 20 September those orders were varied when the Deputy Registrar directed that the amended index be filed and served on 20 September 2002 rather than 16 August 2002. The respondent was directed to file and serve the Appeal Book by 8 October 2002. The respondent was also directed to notify the appellant of the directions made on that day. 8 On 20 September 2002 the solicitors for the respondent wrote to the appellant, referring to their letter of 2 August 2002. That letter is not before me but it is clear that the appellant was aware, upon receipt of the letter of 20 September 2002, that a letter of 2 August 2002 had been written to him. Enclosed with the letter of 20 September 2002 was a sealed appeal index and chronology. The letter then went on to say: "We have endeavoured to include all of the documents that you referred to in your submissions before Branson J on 24 October 2001 and 24 May 2002. As you would appreciate, this is a difficult task given the number of documents you refer to in the transcript and the way those references are recorded in the transcript. If you believe we have inadvertently excluded any such document, please contact us as soon as possible." 9 The appeal index sets out the pleadings and the transcript of the proceedings before Branson J on 24 October 2001 and 24 May 2002. The evidence described in the appeal index consists of oral evidence from the appellant, together with affidavit evidence on behalf of both the appellant and the respondent. There are four affidavits sworn by the appellant together with exhibits to those affidavits. There are nine affidavits sworn on behalf of the respondent together with annexures to those affidavits. 10 Apart from respondent's exhibits, reasons for judgment and the formal order and notice of appeal, the index also includes a section described as "Documents from bundles 1,2,3,4 and 5 (which were exhibited to Mr Bhagat's affidavit of 23 May 2002) referred to by Mr Bhagat during the hearing in the Court below". Some forty-two documents are included in that category. 11 The appellant responded to the respondent's letter of 20 September 2002 by a letter of 2 October 2002. The letter relevantly says: "While I appreciate your endeavours to include all of the documents referred to in my submissions before Branson J on 24 October 2001 and 24 May 2002 those are not all the documents required to be included in the Appeal Papers. The Court is entitled to consider not only the case as disclosed at the time the order was made, but also as would have been disclosed had all the true facts been before the Court on the making of the order; citing Re Williams (1968) 13 FLR 19 at 203 [sic]. It is therefore necessary in the interests of natural justice that you also may please include all of the following evidence in the Appeal Papers and you may please amend the Index of Appeal Papers and the Chronology accordingly to prevent a miscarriage of justice." 12 There then follow seven items. Item 1 is repetitious of another item and I shall ignore it. Item 2 is in the following terms: "Five Bundles of Documents in evidence in Federal Court proceedings No 7253/01 and No 7314/01 at the hearing on 29 November 2001, before the full Bench of the Federal Court, namely Mr Justices O'Loughlin, Whitlam and Marshall JJ and Ms Justice Branson J on 24 May 2002 when the Sequestration Order was made namely…" Then follow descriptions of five different bundles of documents. It is common ground that those five bundles were produced to Branson J at the hearing on 24 May 2002. It is common ground that they exceed, four thousand pages. Branson J did not formally mark any of the bundles as exhibits. In the course of the hearing the appellant, before Branson J, referred to a number of the documents in those bundles. There is no material before me to indicate that the documents described in the draft index do not include all of the documents to which reference was made in the course of the hearing. 13 It is also common ground that the documents described in items 3 to 7 of the letter of 2 October 2002 were not before Branson J on the hearing of the bankruptcy petition. Indeed many of the documents were brought into existence after the orders were made on 24 May 2002. 14 The respondent does not oppose certain orders in relation to bundles 1 to 5. However, it is not prepared to undertake the expense of photocopying in excess of four thousand pages without an indication from the appellant as to the documents to which reference will be made on the hearing of the appeal. 15 I do not regard Mr Bhagat's letter of 2 October 2002 as a fair compliance with the direction given by Kavalaris DR, on 2 August 2002. There is no indication as to why any further documents should be included, other than a general reference to Re Williams (1968) 13 FLR 10. Nevertheless, the appellant has indicated to me that, in order to have a fair hearing before the Full Court, it is necessary for him to be able to refer the Full Court to all of the documents that are set out in his letter. 16 In the absence of any indication as to why a firm hearing requires the documents, I am not prepared to impose on the respondent the burden of preparing further material for inclusion in an Appeal Book. However, since it is not opposed, I would be prepared to vary the directions given by Kavallaris DR, to permit the appellant to file, by way of supplementary Appeal Book, four copies of the five bundles of documents that were before Branson J, such copies to be in the form in which they were before Branson J and with the same pagination. As I have said, I am by no means convinced that that material will be required and it is a matter for the appellant as to whether he wants to take up the leave which I am prepared to give in that regard. 17 So far as the documents referred to in items 3 to 7 of the letter of 2 October ("items 3 to 7") are concerned, that material could be referred to before the Full Court only after compliance with Order 52 rule 36. That rule applies to any application to the Court to receive evidence in a proceeding on an Appeal additional to evidence in the Court below. Clearly that rule applies to the material described in items 3 to 7. 18 That rule applies unless the Court otherwise directs. I have not at this stage been asked to direct otherwise. I have, however, drawn the appellant's attention to the provisions of O 52 r 36 and in particular sub-rules (3), (4), (5) and (6). I have also indicated to the appellant that, if he wishes to rely on any material that has already been filed, he should ensure that there are adequate copies of the material for the members of the Full Court. The appeal has been listed for hearing on 4 November 2002 and, accordingly, the time limit referred to in O 52 r 36(6) could not be complied with if it is intended to rely on any further affidavit in support of the application for additional material to be received by the Full Court. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.