Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hobbs v Australian Securities and Investments Commission [2013] NSWCA 432 Hearing dates: 9 December 2013 Decision date: 17 December 2013 Before: Barrett JA Decision: 1. Order that the appellant's notice of motion filed on 12 July 2013 be dismissed. 2. Order that the appeal be dismissed. 3. Order that the appellant pay the respondent's costs of the proceedings in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - dismissal for want of despatch - continuing failure and inability of appellant to prepare appeal in accordance with the rules of court - continuing expectation that appellant's health will never permit him to do so - expectations of retaining lawyers not realised - no indication that lawyers will ever be retained - prejudice to respondent in the form of need to attend to various aspects of appeal unlikely to proceed Legislation Cited: Civil Procedure Act 2005 Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 Supreme Court Act 1970 Cases Cited: Birkett v James [1978] AC 297 Hobbs v Australian Securities and Investments Commission [2013] NSWCA 205 Hobbs v Australian Securities and Investments Commission [2013] NSWCA 267 In the matter of Idylic Solutions Pty Ltd; Australian Securities and Investments Commission v Hobbs [2012] NSWSC 1276 In the matter of Idylic Solutions Pty Ltd: Australian Securities and Investments Commission v Hobbs [2013] NSWSC 106 State of New South Wales v Plaintiff A [2012] NSWCA 248 Category: Principal judgment Parties: David John Hobbs (Appellant) Australian Securities and Investments Commission (Respondent) Representation: Counsel: No appearance (Appellant) Mr J R Clarke SC (Respondent) Solicitor: No appearance (Appellant) Ms G Hayden, Solicitor for Australian Securities and Investments Commission (Respondent) File Number(s): 2013/85772 Decision under appeal Citation: [2012] NSWSC 1276; [2013] NSWSC 106 Date of Decision: 2013-02-21 00:00:00 Before: Ward J File Number(s): 2007/85772 Judgment 1BARRETT JA: On 21 February 2013, after hearings that had occupied some 35 days, Ward J (as her Honour then was) made orders in relation to a number of defendants against whom Australian Securities and Investments Commission ("ASIC") had brought civil penalty proceedings under Part 9.4B of the Corporations Act 2001 (Cth): see In the matter of Idylic Solutions Pty Ltd; Australian Securities and Investments Commission v Hobbs [2012] NSWSC 1276 and In the matter of Idylic Solutions Pty Ltd: Australian Securities and Investments Commission v Hobbs [2013] NSWSC 106. 2One such defendant was Mr David John Hobbs. Several orders were made in respect of him, including a disqualification order and an order for the payment of a substantial sum by way of pecuniary penalty. Mr Hobbs later took steps directed towards an appeal against her Honour's decision as it affected him. 3These reasons are concerned principally with a notice of motion filed by ASIC on 1 November 2013, by which it seeks an order pursuant to rule 12.7(1) of the Uniform Civil Procedure Rules 2005 that Mr Hobbs' appeal be dismissed for want of due despatch (or want of prosecution), together with a costs order. The power of a single Judge of Appeal to determine such an application comes from s 46(1)(b) of the Supreme Court Act 1970. Also relevant are two applications prompted by the fact that (on the view of matters beneficial to him and referred to in a judgment of 1 July 2013 to be mentioned presently) Mr Hobbs' was late, by some seven days, in the filing of his notice of appeal. These are an application by ASIC for dismissal of the appeal as incompetent and an application by Mr Hobbs for an extension of time. 4ASIC relies on the affidavit of Mr James Docherty, an ASIC officer, sworn on 1 November 2013, together with previous affidavits filed by Mr Hobbs and by ASIC. I shall refer to these materials in greater detail presently. 5It is necessary to trace certain relevant steps, remembering that Mr Hobbs is a resident of New Zealand and that, as far as is known, has been in that country since the orders of the primary judge were made. 6On 20 March 2013, Mr Hobbs filed a notice of intention to appeal. He did not serve the notice on ASIC after it was filed. Rather it was emailed to ASIC on 5 March 2013. ASIC has never been served with a sealed copy of the notice of intention to appeal and makes the point that this is contrary to rule 51.8 of the Uniform Civil Procedure Rules. 7Mr Hobbs filed a notice of appeal on 29 May 2013, which, as I have said, was out of time by something of the order of seven days and, contrary to rule 51.9(1), Mr Hobbs did not serve a sealed copy of the notice of appeal on ASIC, although he did fax a copy of the notice of appeal to ASIC prior to it being filed on 21 May 2013. 8As Mr Hobbs was, in ASIC's assessment, in breach of rules 51.8 and 51.9, ASIC considered itself bound to bring these matters to the attention of the Court pursuant to rule 51.41. On 18 June 2013, ASIC filed a notice of motion that the appeal be dismissed as incompetent (because it was out of time), together with an affidavit sworn by Mr Docherty on the same date. 9On 28 June 2013, ASIC received a facsimile sent on behalf of Mr Hobbs which attached a document entitled "Memorandum of the Appellant" and a bundle of correspondence. The document titled "Memorandum of the Appellant" stated: "[3] Due to my limited financial means I have been unable to obtain legal representation in this matter. ... [5] I am presently too unwell to travel. I attach a medical report which confirms my present condition. Accordingly I will be unable to appear at the hearing on 1 July 2013. [6] I respectfully apply for an adjournment of the hearing of the motions by the respondent scheduled for 1 July 2013, for at least one month." 10Attached to the memorandum was a letter dated 28 June 2013 from Dr Cindy de Villiers, a New Zealand medical practitioner, which stated: "This is to confirm that the above patient who is known with moderately severe symptoms of both multiple sclerosis and depression, has exhibited a [deterioration] over the last two months. His symptoms include immediate and short term memory loss, difficulty articulating thoughts and poor word finding. As such, Mr Hobbs is unfit to partake in a telephonic court appearance. Mr Hobbs is continuing to comply with all treatment but is unlikely to improve significantly." 11Mr Hobbs also forwarded an affidavit of Ms Doreen Andrews sworn 1 July 2013 which exhibited various correspondence including letters from medical practitioners who were treating Mr Hobbs. The affidavit of Ms Andrews stated: "[6] Mr Hobbs was most concerned because his health did not allow him to travel or participate in the court hearing on Monday 1 July 2013. Mr Hobbs requests that the court does not draw any adverse inference from this." 12Exhibited to the affidavit was an unsigned letter dated 29 June 2013 from Dr Tim Ewer, also a New Zealand medical practitioner, which stated: "This is to confirm that the above patient has been reviewed by myself on 17 June 2013 and by Dr de Villiers on 28 June 2013. On both occasions Mr Hobbs was noted to be suffering from an exacerbation of his multiple sclerosis which included marked impairment of his cognitive abilities and memory, in addition to several (witnessed) syncopal episodes, headaches and increased upper body pain in the last 2-3 weeks. We believe that he is not presently fit to take part in any legal process that requires reasonable cognitive skills." 13On 1 July 2013, ASIC's notice of motion filed on 18 June 2013 came before McColl JA. ASIC was represented by Mr Jeremy Clarke of counsel. There was no appearance by or for Mr Hobbs. McColl JA observed that Mr Hobbs should be "given an opportunity to put his house in order to address the two issues" referred to in the judgment, being issues of deficient service: Hobbs v Australian Securities and Investments Commission [2013] NSWCA 205 (at [12]). McColl JA noted (at [4] - [5]) that the medical evidence forwarded by Mr Hobbs was to the effect that "Mr Hobbs is not presently fit to take part in any legal process that requires reasonable cognitive skills" and that Mr Hobbs' position was "unlikely to improve significantly", which led McColl JA to observe that this raises a "concern about Mr Hobbs' ability to participate in the proceedings at all". Her Honour made an observation as follows (at [6]): "I would add that in the light of the matters to which the medical practitioners refer, it is desirable both that Mr Hobbs deal with what I would call the real issue as quickly as possible and be on notice that the Court, having read the material he has advanced, is of the view that he should make arrangements as soon as possible for legal representation, to ensure he can comply with the obligation to which all who appear in this court or participate in its processes are subject by s 56 of the Civil Procedure Act 2005, namely that matters be disposed of as expeditiously and cost-effectively as possible." 14McColl JA further observed (at [16]): "I should make it clear as I have said earlier in these reasons that if Mr Hobbs is suffering from the disabilities referred to he should make arrangements for a legal practitioner to appear on his behalf in relation to [a notice of motion returnable on 17 July 2013 seeking an extension of time] and on subsequent occasions, bearing in mind as I have said his obligation to ensure that proceedings in this Court advance in accordance with s 56 of the Civil Procedure Act." 15On 12 July 2013, Mr Hobbs filed a notice of motion seeking an extension of time within which to file and serve the notice of appeal, together with further affidavits in support of his motion. Additional affidavits were sent on behalf of Mr Hobbs on 16 July 2013. An affidavit of Mr Hobbs sworn on 11 July 2013 stated: "[11] I suffer from Multiple Sclerosis and Depression. I have been having a particularly difficult time in the past two months as my health has deteriorated rapidly. The letter that my doctor supplied to the Court is attached and marked "H" [being letter from Dr de Villiers dated 28 June 2013 set out above]." 16An affidavit of Ms Andrews sworn 16 July 2013 stated: "[1] This affidavit is to inform the Court that Mr David Hobbs is not well enough to be involved in Court by way of telephone on 17th July 2013. [22] Mr Hobbs is still undergoing tests to confirm the diagnosis of the neurologist that he is having brain seizures caused by the Multiple Sclerosis that he suffers from. For some time Mr Hobbs has been having fainting type episodes where he loses consciousness and he also has difficulty when trying to speak, remember words he wants to use, and have a conversation. [3] The affidavit that David John Hobbs had filed in the Court dated 11 July 2013 took him a great number of days to compile as he was only able to concentrate for small periods of time." 17On 17 July 2013, there was no appearance before the Court by Mr Hobbs and no judge available to hear the notices of motion which were stood over to 5 August 2013. A direction was made that Mr Hobbs be given a show cause notice pursuant to rule 13.6. 18On 1 August 2013, and again on 2 August 2013, further affidavits were sent on behalf of Mr Hobbs, apparently with a view to their being taken into account by the Court on 5 August 2013. An affidavit of Mr Hobbs dated 23 July 2013 stated: "[1] I was unable to attend the Court on the 17th July 2013 due to the problems that I am currently experiencing because of the Multiple Sclerosis which I suffer from... [2] I have episodes where I lose consciousness without any warning. This can happen anywhere from one to three times in a day ... This problem alone would stop any person from being able to travel internationally... [3] I am also experiencing difficulty with my speech. My speech is impaired ... My thought process is not clear and I often forget what I was going to say part way through a sentence. This is why I am unable to take part in any normal telephone conference. ... [6] As the appeal process goes forward I will have a barrister acting for me in Court I have new evidence to put forward in the appeal process. [7] I ask that the Court sees that my situation is genuine and does not dismiss this because of non-attendance. If I had the ability to be present in the Court I would have been there I thank Your Honour for your time taken in the consideration of this matter." 19Exhibited to the affidavit were three letters from New Zealand medical practitioners, two of which were those provided earlier and referred to above. The third letter, dated 22 July 2013, from Dr Michelle Cliffe stated: "This is to confirm that the above patient has been reviewed by myself today and by Dr Tim Phillips here on 5 July 2013. Mr Hobbs was noted to be suffering a further exacerbation of his multiple sclerosis which included impairment of his cognitive abilities, speech and memory in addition to daily syncopal episodes that are awaiting investigation. I believe that he is not presently fit to take part in any legal process that requires reasonable cognitive skills or require him to deliver his opinion in a coherent articulate manner due to his speech disturbance it is as a direct result of this that he was unable to participate in the court proceedings on July 17 including a teleconference." 20By letter dated 1 August 2013, ASIC said to Mr Hobbs: "We strongly urge you to ensure you or your legal representative do appear on Monday 5 August 2013 as the Court may refuse your application and/or order your 'appeal' be dismissed. Further to the competency issues ASIC has already identified, ASIC anticipates submitting to the court there is no utility in allowing your appeal and the application and/or any appeal ought to be dismissed. We note in this regard that you have previously been put on notice by Justice McColl (and at first instance in these proceedings by Justice Ward) that if your medical condition is such that there isn't sufficient certainty that you will be in a position to conduct proceedings in a reasonably expeditious manner and within a reasonable timeframe then this matter cannot proceed." 21On 3 August 2013, Mr Hobbs forwarded an affidavit of that date as to barristers who "will" be acting for him. 22On 5 August 2013, ASIC served an affidavit of Mr Docherty which set out telephone conversations on 2 August 2013 between, on the one hand, Mr Docherty and Ms Hayden of ASIC and, on the other, Mr Tony Bamford, a solicitor in New Zealand, and Mr Mark Southwick, a Sydney barrister, each of whom had been referred to by Mr Hobbs in his affidavit. The evidence was that Mr Bamford had stated that he would not be appearing in court on 5 August 2013 and that a number of matters would need to be dealt with before he could represent Mr Hobbs, including but not limited to Mr Bamford's ability to appear in New South Wales. Mr Mark Southwick was reported to have said words to the effect that he was not formally briefed by Mr Hobbs. 23On 5 August 2013, the matter came before me. There was no appearance by or for Mr Hobbs, except to the extent that Mr Collard, one of the other defendants in the first instance proceedings, was permitted to make representations in his interest. Mr Clarke appeared for ASIC. After referring to the material about Mr Hobbs' health and legal representation, I said (Hobbs v Australian Securities and Investments Commission [2013] NSWCA 267 at [12] - [15]): "This material highlights the two significant difficulties in the management of this matter. There is a very distinct likelihood that Mr Hobbs is not, and never will be, fit to pursue the appeal he wishes to pursue. The evidence he has put before the Court calls seriously into question his ability to do so. ASIC is justified, in those circumstances, in working on a hypothesis that the proposed appeal may never proceed and that such preparations as it may be minded to make will be in vain; and that there is therefore good reason for it to defer making any such preparations. The true state of Mr Hobbs' health and capability needs to be assessed. There is then the question of legal representation. Mr Hobbs accepts that he needs legal representation and could not proceed without it. It appears that such attempts as he has made to obtain legal assistance through Mr Bamford and Mr Southwick have not been successful, at least at this stage. Whether there is a possibility that either or both of them might be able to provide some assistance in the future is not known. It is necessary for these matters to be brought to a head. ... In the light of the evidence he has put himself before the Court, it is really for Mr Hobbs to show how he will progress an appeal, including by the instructing of lawyers, in an efficient way, and how his state of health will allow that to happen. I propose to give Mr Hobbs a period of 4 weeks in which to deal with the matters that require his attention." 24The proceedings were then stood over to 2 September 2013. 25On 28 August, 30 August and again on 2 September 2013, further affidavits were sent on behalf of Mr Hobbs, with a view to their being taken into account by the Court on 2 September 2013. Neither of those affidavits showed how Mr Hobbs was going to be able to proceed with the appeal or to prosecute it (given the state of his state of health) or that he had arranged, or would be able to arrange, legal representation. 26In his affidavit of 27 August 2013, Mr Hobbs said: "[11] ...Of late I have been falling unconscious a number of times per day, and my doctor has referred me to Dr Susan Busch, acting neurologist at Nelson Marlborough District Hospital who has overseen the process of a heart monitor which I have worn for a number of days on two occasions to eliminate the possibility of a heart problem causing my passing out. I have completed the test with the heart monitor and am waiting for an appointment to be seen by Dr Susan Busch. [12] The most alarming symptom I have at present apart from falling unconscious is that I am struggling to breathe, this is a symptom of multiple sclerosis affecting the lungs. [13] Further current problem is memory loss, and I am unable to articulate my speech and word finding. I have not been able at this time able to conduct a telephone or video conference with the Court and am resigned to having my barristers act for me in the matter of this appeal." 27In an affidavit of Mr Docherty of 30 August 2013, further telephone conversations were set out between Mr Docherty and Ms Hayden, on the one hand, and Mr Bamford and Mr Southwick, on the other. Mr Bamford was stated to have spoken words to the following effect: "I am not representing Mr Hobbs. Mr Hobbs has asked me to represent him, and I have informed him I cannot represent him in the next 3 months for various reasons... I have told Mr Hobbs I can only represent him if I was the solicitor on the record and a barrister worked on the matter in Sydney. I have not had any meaningful conversations with Mr Hobbs recently that could be considered instructions. The most accurate answer is I am not representing Mr Hobbs, and I cannot represent him until at least December". 28Mr Southwick was recorded as having said words to the effect that he was "not representing Mr Hobbs" and that he had spoken to Mr Hobbs before the 5 August 2013 hearing but had had no further contact with him since that time. 29On 30 August 2013, Mr Docherty sent an email to Mr Hobbs attaching a letter in response to Mr Hobbs' affidavit of the same date in which Mr Docherty said: "Further, it is not for ASIC to lead evidence from your witnesses nor is it for ASIC to organise their attendance at Court. ASIC will not be doing so. This is a matter solely for you. ... Mr Hobbs, please be mindful that it is you who is seeking to appeal the decision of Justice Ward and accordingly, unlike that hearing before Justice Ward, it is now your responsibility, and not ASIC's responsibility, to prosecute and make good on your application and appeal, if permitted. Failure to do so may result in your application being dismissed. ... We again put you on notice that Justice Barrett has said on the last occasion that it is necessary for these matters to be brought to a head. There is a real risk that at the hearing on 2 September 2013 your appeal could be dismissed. We strongly urge you or your legal representative to appear at the hearing on 2 September." 30On 2 September 2013, the proceedings came before me again. Mr Hobbs was not present or represented. Mr Clarke appeared for ASIC. There was no indication that there had been any progress at all in relation to Mr Hobbs' appeal. With a view to bringing matters to a head without the allocation of potentially significant hearing time that might turn out to be wasted, I determined to make directions which departed from the generally applicable procedure under which the filing of appeal books and related documents takes place according to a timetable that is calculated in part prospectively from the date of filing of a notice of appeal but more substantially retrospectively from the future day appointed for the commencement of the hearing: Uniform Civil Procedure Rules, rules 51.25, 51.27, 51.28, 51.29, 51.30, 51.31 and 51.32. I made a direction as follows: "Direct that in lieu of the requirements applying under the rules as to filing and service of Red book, Blue book and Black book, the appellant will file and serve those books not later than 14 October 2013 but otherwise in accordance with the provisions of the rules and shall at the same time file and serve written submissions and chronology and in these respects all provisions of the rules other than those as to timing shall apply. It is noted that there is no requirement on ASIC for any submissions or other response until the foregoing has been complied with." 31The direction thus allowed six weeks for the preparation of appeal books. This was in addition to the period of some three months that, as at the time the direction was made, had already elapsed from the filing of the notice of appeal. 32The proceedings were stood over to 9.30am on 28 October 2013 before me, with costs reserved. 33On 14 October 2013, Mr Hobbs filed and served what purported to be the Red, Blue and Black appeal books. He did not file or serve a chronology or written submissions. None of the purported appeal books was properly prepared. I shall refer to the deficiencies presently. 34Between 21 and 25 October 2013, correspondence was exchanged between ASIC and Mr Hobbs in relation to the material served on ASIC on 14 October 2013. ASIC said in its letter of 21 October 2013 to Mr Hobbs: "We put you on notice that there is a real risk that at the hearing on 28 October 2013 your appeal could be dismissed. We strongly urge you or your legal representative to appear at the hearing on 28 October 2013." 35The matter came before me again on 28 October 2013. Mr Hobbs was not present or represented. Mr Clarke appeared for ASIC. Directions were made as follows: "If any motion for dismissal for want of prosecution and supporting affidavits are filed and served by ASIC on or before 1 November 2013, the following timetable shall apply: 1. The motion is to be returnable at 9.30am on 9 December 2013 before me. 2. Affidavits to be relied on by Mr Hobbs are to be filed and served by 22 November 2013. 3. Any affidavits to be relied on by ASIC in reply are to be filed and served by 4 December 2013." 36On 1 November 2013, ASIC filed and served a notice of motion seeking an order under rule 12.7(1) that the proceedings in this Court be dismissed for want of due diepatch and an order that Mr Hobbs pay ASIC's costs. That, of course, is the principal motion now before me and, as I have said, it is supported by an affidavit of Mr Docherty of the same date. 37In the period 19 November 2013 to 6 December 2013, Mr Hobbs forwarded a number of documents with an obvious intention that they should be taken into account when ASIC's dismissal motion came before the Court. These were an affidavit of Mr Hobbs himself dated 19 November 2013 of 23 paragraphs, a two-page document of the same date headed "Notice of defence by David John Hobbs to motion seeking dismissal of appeal", a three-page document dated 3 December 2013 headed "Submissions by David John Hobbs to motion seeking dismissal of appeal" and an affidavit of Mr Hobbs dated 5 December 2013 consisting of 109 pages. 38ASIC's motion for dismissal for want of due dispatch came before me on 9 December 2013. There was no appearance by or for Mr Hobbs. Mr Clarke appeared for ASIC and moved for the relief sought in the notice of motion. Mr Clarke read affidavits of Mr Docherty of 18 June 2013, 16 July 2013, 5 August 2013, 30 August 2013 and 1 November 2013. He tendered the exhibits to the last mentioned affidavit, a bundle of documents marked as Exhibit 1 on 28 October 2013, emailed letters from ASIC to Mr Hobbs dated 21 October 2013 and 29 November 2013 (which were marked as Exhibit A) and transcript of proceedings before the primary judge on 19 August 2012 (which was marked Exhibit B). Mr Clarke also ensured that Mr Hobbs' documents, as described at [37] above, were placed before the Court and, as to affidavits, took a formal objection that much of the content was conclusionary and in the nature of submission or argument and ought to be read accordingly. That point is well made and I treat the relevant content as submission. 39The evidence adduced by ASIC itself served to establish the several events to which I have referred in describing the history of the matter initiated by Mr Hobbs in the Court of Appeal - events that have brought it to the present state which ASIC regards as one of failure to proceed with due despatch. I concentrate, therefore on the material put forward by Mr Hobbs. 40As I have said, Mr Hobbs forwarded on 14 October 2013 what were obviously intended by him to be Red, Blue and Black appeal books. Each consisted of a ring binder of the relevant colour containing a plastic sleeve which, in turn, contained a USB stick, also of the relevant colour. In the case of the Black folder, there was no other content. In the case of the Blue folder, the plastic sleeve contained, in addition to the blue USB stick, some fifteen CDs or DVDs, some, according to labels on them, prepared by ASIC for the purposes of the first instance proceedings. The Red folder contained, in addition to the USB stick, an affidavit of Mr Hobbs dated 14 October 2013 much of the content of which is in the nature of submission rather than evidence. The affidavit traverses the following matters: (a) problems with printers that had caused everything to be produced in electronic rather than paper format; (b) Mr Hobbs' health and the effect that the disease from which he suffers has on his mental and intellectual functioning; (c) matters put into evidence at trial through tender of a transcript of an examination of a Mrs Reisinger before the Commodity Futures Trading Commission in the United States; (f) evidence of Mr Koutsoukos given at trial which Mr Hobbs suggests was inaccurate or false; (g) matters deposed to by a Mr Naulu in an affidavit of 14 March 2013, a copy of which is an exhibit to Mr Hobbs' affidavit, which matters are said to underline the inaccuracy of Mr Koutsoukos' evidence at trial; (h) matters deposed to by Mr Hobbs' brother (Mr Robert Hobbs) in an affidavit of 14 October 2013, a copy of which is also exhibited to Mr Hobbs' affidavit, which also purport to call into question aspects of Mr Koutsoukos' evidence at trial; (i) matters deposed to by Ms Doreen Andrews in an affidavit of 14 October 2013, a copy of which is exhibited to Mr Hobbs' affidavit, which apparently goes to issues canvassed before the primary judge on 29 August 2012 (the date of the Exhibit B transcript tendered by ASIC) about inferences that might have been warranted by the absence of evidence from that person; (j) matters referred to in an email from Alan Matthews dated 11 October 2013 (exhibited to Mr Hobbs' email) concerning Mrs Reisinger and a Mr Caswell; (k) various court and administrative documents and announcements concerning proceedings in the United States involving Mrs Reisinger and Cadent Financial Services LLC; and (l) what two documents apparently prepared by Mr Hobbs which comment on the transcript of the proceedings before the primary judge and contain argumentative reactions to a myriad of matters therein. 41ASIC put before the Court an analysis its officers had made of the content of the USB sticks and CDs or DVDs contained in the three coloured folders. I do not intend to go through this analysis in any detail, as I am of the opinion that the correct approach, in light of the rules of court, is to regard the Blue and Black folders (or books) as being devoid of content and the Red folder (or book) as consisting of only the paper material within and exhibited to Mr Hobbs 14 October 2013 affidavit in the folder. It is sufficient to say that, if there were some basis for treating the purported appeal books as containing the content of the electronic media, it would be seen, according to the ASIC analysis, that the Red folder (or book) contained, in addition to Mr Hobbs' paper affidavit, the notice of appeal and some only of the operative pleadings below but did not contain the reasons for judgment below or the sealed orders; that the Blue folder (or book) contained 15,799 documents which are not indexed and are separated into twenty folders, including very substantial quantities of discovered and other material that was not put into evidence at trial; and that the Black folder (or book), which is also unindexed, contains 1,982 documents (including some created after the trial and others relevant to the pre-trial phases only) including without prejudice material that was not in fact tendered and outlines of foreshadowed evidence ultimately superseded by actual testimony. No transcript of the trial is included. 42On 21 October 2013 and again on 29 November 2013, ASIC wrote to Mr Hobbs pointing out in considerable detail the deficiencies in the material he had produced. ASIC made the point that the deficiencies went far beyond matters of strict or technical compliance with the rules and left ASIC in a position where it could not attempt any meaningful response because it was not on notice of the case Mr Hobbs proposed to advance on appeal. 43I should point out that these letters sent by ASIC were among several, spanning virtually the whole of the period from the filing of the notice of appeal, in which ASIC went to some pains to alert Mr Hobbs to requirements that it would be necessary for him to recognise and negotiate. It can, in my opinion, be said that ASIC adopted a stance that involved assistance to Mr Hobbs of a kind that many private litigants would think it neither necessary nor appropriate to extend to an opposing party. 44ASIC accepts that Mr Hobbs has produced a form of notice of appeal and that there emerge from it grounds of appeal generally to the following effect: (a) that ostensible bias was exhibited by the primary judge in the course of the trial; (b) that the judge failed to consider relevant evidence; (c) that the judge did not give Mr Hobbs a reasonable opportunity to make full oral submissions; (d) that Mr Hobbs was not given an opportunity to test key evidence in the form of Mrs Reisinger's statements in the Commodity Futures Trading Commission transcript; (e) that the judge placed unreasonable and unjustified weight on a corporate structure diagram prepared by Mr Parsons ostensibly from information he was given by Mr Hobbs; (f) that the finding that Mr Hobbs was a de facto or shadow director was not reasonably open on the evidence; (g) that "new evidence has come to light since the hearing concluded" that supports the defence Mr Hobbs sought to make; and (h) that the pecuniary penalty ordered against Mr Hobbs was manifestly excessive and unreasonable given his financial circumstances. 45ASIC says, however, that the material Mr Hobbs has produced and which is apparently put forward by him as satisfying, at least in substance, the requirements that apply to preparation of an appeal does virtually nothing to alert ASIC to the case proposed to be made against it by reference to the stated grounds or of the way in which Mr Hobbs will seek to make that case. 46Subject to one possible qualification, ASIC's objection is fully justified. Even if the content of the electronic media is taken into account, ASIC has before it in the purported appeal books, at best, a "dump" of a vast quantity of documents a great number of which are of their nature irrelevant, from which many obviously key components are missing and which does nothing to identify particular matters on which reliance will be placed in an attempt to make good the grounds of appeal which are themselves stated in very broad and non-specific terms. The possible qualification concerns the foreshadowed new evidence. As to that, if items identified in Mr Hobbs' 14 October 2013 affidavit are in contemplation, it is clear that he will face formidable obstacles given that most, if not all, of the evidence appears to have been in existence before the trial and there is no suggested reason why Mr Hobbs could not have sought to place it before the court at that time: Supreme Court Act, s 75A(7) and (8). 47Two other matters of particular significance emerge from the evidence on the present application. First, Mr Hobbs has, by the material he has put before the Court, shown that his medical condition is such as to prevent his prosecuting the appeal with any measure of efficiency and despatch unless he has the assistance of lawyers able to devote close and detailed attention to the matter - and even then, the evidence about the effect of his chronic illness on his intellectual functioning must raise at least a significant doubt that he will, at any material time, be competent to instruct lawyers. Second, the evidence demonstrates that Mr Hobbs is aware of the desirability of retaining lawyers but has failed to obtain legal assistance. 48It is significant that Mr Hobbs has been on notice of these issues since 1 July 2013 and has been reminded in judgments on two occasions (1 July and 5 August 2013) of the importance of his addressing and remedying the position. 49In addition, Mr Hobbs has shown himself unable to comply with the rules regarding the proper filing and serving of Red, Blue and Black appeal books and chronology and written submissions in respect of the appeal. Significantly, the failure by Mr Hobbs to file proper written submissions, which link the evidence with challenged findings of fact and identify the findings that should be made on appeal, by reference to the grounds of appeal set out in the notice of appeal, demonstrates that, without competent assistance, he is simply unable to prosecute the appeal efficiently. 50I turn now to the position of ASIC. Mr Docherty sets out in his affidavit of 1 November 2013 the ways in which ASIC's time and resources have been absorbed by this matter over the six months since Mr Hobbs filed his notice of appeal. Mr Docherty points out that ASIC has: (a) prepared for and attended five court appearances involving both ASIC staff members and external counsel; (b) filed and served ASIC's notice of motion and made other applications; (c) filed and served four affidavits; (d) received, processed and responded to numerous affidavits filed by or on behalf of Mr Hobbs; (e) received, processed and responded to correspondence received from or on behalf of Mr Hobbs; (f) received from Mr Hobbs' numerous documents, many of which appeared to be of questionable relevance to the matters stated in Mr Hobbs Notice of Appeal; (g) conducted the electronic analysis of the purported appeal books; and (h) on numerous occasions, contacted and sought to engage with Mr Hobbs, and various individuals Mr Hobbs has identified as representing him, including his foreshadowed legal representatives. 51ASIC makes the valid point that, despite its investment of staff and other resources, the proceedings in this Court have not progressed at all, as to any aspect of substance, since the filing of the notice of appeal. In addition, ASIC points out that very little, if any, of the work it has undertaken to date has had any bearing on the issues raised in Mr Hobbs' notice of appeal and that the vast bulk of that work would be of no utility on a hearing concerning those issues. 52In seeking an order of dismissal for want of prosecution or want of due despatch, ASIC relies directly on rule 12.7(1) of the Uniform Civil Procedure Rules. There is authority for the proposition that, when there has been no hearing on the merits, a court should be reluctant to make such an order unless there has been intentional and contumelious default on the part of the moving party or inordinate or inexcusable delay giving rise to a substantial risk that a fair trial would not be possible: Birkett v James [1978] AC 297 at 318. But, as Basten JA pointed out in State of New South Wales v Plaintiff A [2012] NSWCA 248 at [17], the stringency of that principle has been diminished by the enactment of ss 56 to 60 of the Civil Procedure Act 2005. It is therefore necessary to have regard to the "overriding purpose" referred to in s 56, being "to facilitate the just, quick and cheap resolution of the real issues in the proceedings." The need to pay particular attention to that overriding purpose is pronounced in a case such as the present where the essence of the application before the court is delay as such. 53In this case, there has been clear and substantial delay by Mr Hobbs. In addition, he has shown himself to be unable to come sufficiently to grips with the issues and requirements at hand to enable him to formulate expeditiously - or at all - three essential elements: a coherent statement of the basis on which he contends that the first instance decision is erroneous; detailed propositions of fact and law by which he seeks to make good each aspect of that contention; and documents in conformity with the rules of court by which all necessary material will be put before this Court. Furthermore, the evidence put before the Court by ASIC clearly warrants inferences, first, that Mr Hobbs will be quite unable to assemble and produce such documents without the assistance of lawyers and, second, that he will not be retaining the services of any lawyers able to undertake the task. 54As a result, the conclusion must be that the delay will be ongoing and indefinite and that there can be no expectation that Mr Hobbs will ever prosecute an appeal in the required manner. In addition, I am satisfied, on the material before me, that ASIC has suffered prejudice by reason of the need to contend with Mr Hobbs' ongoing and ineffectual attempts to prosecute proceedings in this Court and that it will continue to be so prejudiced if Mr Hobbs continues on the path upon which he has embarked being, in my assessment, a path that will never lead to the orderly and coherent presentation of an appeal in accordance with the applicable rules and procedures. 55As things now stand, there is no basis on which it can be concluded that further time will (or even may) change the situation. 56In these circumstances, Mr Hobbs should not be given the short extension of time he seeks retrospectively for the filing and service of his notice of appeal and the appeal should be dismissed. ASIC has made good both the grounds on which it relies in seeking dismissal, that is, that the appeal is incompetent because not duly initiated within time and, more particularly and more substantially, that there has very clearly been want of due despatch or want of prosecution by Mr Hobbs. 57I make the following orders: 1. Order that the appellant's notice of motion filed on 12 July 2013 be dismissed. 2. Order that the appeal be dismissed. 3. Order that the appellant pay the respondent's costs of the proceedings in this Court. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2013