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LM Investment Management Ltd (receiver apptd) (in liq) v Drake QSC 265
SUPREME COURT OF QUEENSLAND
LM Investment Management Ltd (receiver apptd) (in liq) v Drake & Ors  QSC 265
LM INVESTMENT MANAGEMENT LIMITED (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) ACN 077 208 461 AS RESPONSIBLE ENTITY OF THE LM FIRST MORTGAGE INCOME FUND ARSN 089 343 288
PETER CHARLES DRAKE & ORS
LISA MAREE DARCY
EGHARD VAN DER HOVEN
FRANCENE MAREE MULDER
SIMON JEREMY TICKNER
BS No 1146 of 2020
Supreme Court of Queensland at Brisbane
28 August 2020
2 June 2020
EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – PETITION OR SUMMONS FOR ADVICE – GENERALLY – where applicant conducted litigation as court appointed receiver of investment fund against the fund’s directors – where it was alleged that directors breached duties under the Corporations Act 2001 (Cth) making them liable for damages – where litigation unsuccessful – where applicant filed notice of appeal against trial judgment – where applicant seeks judicial advice as to whether to proceed with appeal – where trial counsel provided submissions, proposed summary of grounds of appeal and confidential advices to Court – where contradictor liquidator of fund submitted that confidential advices should be shared on basis of common interest privilege – where contradictor liquidator of fund ultimately submitted that the Court should decline to provide advice – whether arguable grounds of appeal – whether reasonable prospects of success on appeal – whether in best interest of beneficiaries to proceed with appeal on evidence before the Court – whether Court should exercise discretion and provide advice
Corporations Act 2001 (Cth), s 601FD, s 601NF
Trusts Act 1973 (Qld), s 96
Uniform Civil Procedure Rules 1999 (Qld), r 748
Alan Maxwell Frost and Diana Catherine Fallon  NSWSC 1619, cited
Application by Muhammad Elias Attia  NSWSC 94, cited
Application of NSW Trustee and Guardian, Re  NSWSC 423, cited
Australian Securities and Investments Commission v Commercial Nominees of Australia Ltd (2002) 42 ACSR 240, cited
Bruce v LM Investment Management Limited (in liq) & Ors  QSC 126, cited
Bullas v Public Trustee  1 NSWLR 641, cited
Coore v Coore  QSC 196, cited
Corbiere & Anor v Dulley & Ors  QSC 134, cited
Degiorgio v Dunn (No 2)  NSWSC 3, cited
Frost and Fallon  NSWSC 591, cited
Glassock v Trust Company (Australia) Pty Ltd  QSC 15, cited
Glazier Holdings Pty Ltd v Australian Men’s Health Pty Ltd Unreported, Young J, NSWSC, 30, cited
Grain Technology Australia Pty Ltd v Rosewood Research Pty Ltd (No 2)  NSWSC 1744, cited
Hancock and Another v Rinehart and Others (2013) 96 ACSR 76, cited
Klatt v Coore  QSC 196, cited
Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR, applied
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor  66 NSWLR 112, applied
Plan B Trustees Limited v Parker [No 2]  WASC 216
Public Trustee v Cooper  WTLR 901, cited
Re Application of Perpetual Trustee Co Ltd  NSWSC 1185, cited
Re Beddoe  1 Ch 547, cited
Re Cassidy  VR 369, cited
Re Estate of Anastasios Keriacules Challis (Dec)  WASC 333, cited
Re Estate Late Chow Cho-Poon; Application for judicial advice  NSWSC 844, cited
Re Frost  NSWSC 591, cited
Re O'Donoghue NZLR 116  1, cited
Re Public Trustee of Queensland  QSC 281, cited
Watson v Yore  QSC 339, cited
Wood (as co-executor and trustee of the Will of the deceased) v Wood [No 4]  WASC 393, cited
D O'Brien QC with M Jones for the applicant
JW Peden QC with D Clarry for the liquidator
No appearances by the respondents
Gadens Lawyers for the applicant
Russells for the liquidator
No appearances by the respondents
TABLE OF CONTENTS
1. “Judicial Advice”5
2. Proceedings Before Jackson J5
4. Nature of this application8
5. The Test8
6. Is the advice sought meaningful?9
7. Arguable Grounds10
(b) Summary of proposed grounds11
(c) Counsel’s opinion15
(d) Arguable Grounds - Conclusion16
8. Discretionary considerations17
(a) Counsel’s opinion17
(b) Known Means20
1. “Judicial Advice”
- Its adversarial nature was identified as early as the announcement of appearances. Mr O'Brien QC introduced himself for the applicant. Mr Peden did not appear for any of the respondents named in the proceeding. Rather, he announced his appearance “for LM Investment Management Limited in liquidation in its own capacity and in its capacity as responsible entity for the two feeder funds, which are the LM ICPAIF and LM CPAIF”. There was disagreement about the way in which this entity should be described in these proceedings. Debate ensued. I am going to refer to his client as the liquidator.
- The liquidator’s submissions were motivated by a concern to realise and preserve the property of the fund. Mr Whyte was motivated by an identical concern.
- However, the liquidator has opposed the application and submitted that the Court should decline to provide any advice. This is, therefore, a dispute between two parties whose interests align and whose remuneration might be derived from money which would otherwise go to those whose interests they are concerned to protect.
2. Proceedings Before Jackson J
- The nature of the dispute, and the background to it, can be understood only after reading the entirety of the judgment delivered by Jackson J in LM Investment Management Ltd (receiver apptd) (in liq) v Drake & Ors  QSC 281.
- Mr Whyte, as receiver, conducted that litigation on behalf of the Fund against its own directors. In essence, it was alleged that they had breached duties in a way that would make them liable for damages. Any such damages could become “scheme property” belonging to the fund, and therefore its members.
- As put by Jackson J:
“Simplified, the plaintiff’s case is that LMIM was the responsible entity of the FMIF and also trustee of an unregistered scheme, named the “LM Managed Performance Fund” (“MPF”). Accordingly, it held the scheme property of the FMIF on trust for the members of the FMIF and the trust property of the MPF on trust for the beneficiaries of the MPF.”
- His Honour proceeded to explain how LM Investment Management Ltd (“LMIM”), undertook various business deals. These gave rise to litigation which was ultimately settled. The proceedings and settlement thereof were funded by LMIM as trustee for the MPF, such that when received:
“The settlement proceeds were divided in the ratio of 65:35, as between the FMIF and the MPF, by LMIM acting through the defendants as the board of directors, so that $15,546,147.85 million was received by LMIM as trustee of the trust property of the MPF and credited to the MPF’s account. The remainder was received by PTAL as custodian for the scheme property of the FMIF and credited to the account of the FMIF.”
“The 35 percent proportion of the settlement proceeds allocated to the MPF was arrived at, at least in part, by treating the position of LMIM as trustee of the MPF, in effect, as if it were a commercial litigation funder receiving a percentage proportion of the litigation recoveries."
- Litigation was therefore commenced to determine whether:
“…the decision of the defendants as directors to divide the settlement proceeds and the receipt and crediting by LMIM as trustee for the MPF of its part of the division constituted a contravention by each of the defendants of either or both of 601FD(1)(c) (“duty to act in members’ best interests”) or (b) (“duty of care and diligence to members”) of the CA [Corporations Act 2011 (Cth)].”
- The case was heard by Jackson J over a number of days in April 2019 and his Honour delivered judgment on 22 November 2019. The Fund was unsuccessful. Its claim was dismissed and it was ordered to pay the defendants’ costs in the proceeding.
- Mr Whyte took advice from trial counsel and an appeal was lodged on 20 December 2019. The proceedings have, however, been put on hold because Mr Whyte now seeks “judicial advice” as to whether he should proceed with the appeal. Specifically, his application asks for an order that he is and was “justified in making and pursuing” his appeal against the judgment of Jackson J.
- The liquidator submitted that the Court should decline to provide such advice, either because it lacked jurisdiction to do so, or on the basis of certain discretionary grounds.
- The liquidator raised what was said to be a “threshold issue”. The fact that the notice of appeal has already been lodged indicates, so it is said, that Mr Whyte has already made up his mind to appeal, and he therefore does not require the advice of the Court.
- I would not be prepared to withhold advice on this basis. After receiving an adverse judgment, Mr Whyte had twenty-eight days in which to comply with rule 748 of the Uniform Civil Procedure Rules 1999 (Qld). He lodged a notice of appeal on the advice of trial counsel. His alternative was to wait, get judicial advice, and take his chances in succeeding on an application for extension of time within which to appeal. The very fact that he does now seek advice tells against a conclusion as to predetermination. The sequence in which Mr Whyte has done things does not prevent me from entertaining this application.
- The applicant pointed to three sources of jurisdiction for the application. These included s 96(1) of the Trusts Act 1973 (Qld) and s 601NF(2) of the Corporations Act 2001 (Cth) (“CA”). There may have been merit to the submissions made about each, although the liquidator joined issue with both of them.
- Ultimately, the applicant submitted that the “safest path” upon which I should proceed was that I had inherent jurisdiction to do so. This was the approach adopted by Mullins J in Bruce v LM Investment Management Limited (in liq) & Ors. In that case, reference was made to Australian Securities and Investments Commission v Commercial Nominees of Australia Ltd, where Barrett J stated that the court’s general equitable jurisdiction is a “much clearer source of power for the court to give its opinion, advice or direction to a receiver it has appointed” and that “such a receiver is an officer of the court and, as such, may resort to the court for necessary guidance”.
- I accept the applicant’s submission that “the very nature of the matters involved is such that the court has particular knowledge and particular interest in the matters which are the subject of the advice”.
- I have noted the liquidator’s submissions to the contrary. However, the authorities cited, which reflect the intrinsic and self-referent nature of “inherent” jurisdiction, do suggest that it is within my power to give the advice.
4. Nature of this application
- Some applications for judicial advice are relatively straightforward - such as in a case where judicial imprimatur is sought in order to sell off an estate.
- However, the request made in this case is not like that. It invites one judge of this Court to critique a judgment delivered by another judge of this same Court – but not whilst empowered with any sort of appellate jurisdiction. That is unusual.
- Since this is not an appeal it cannot be expected that I should review the entire record and assess the grounds as if I was required to reach a final decision about the dispute between the parties involved in the trial. I do not have to canvass the intricacies that might be involved in proceedings before the Court of Appeal. I do, however, have to form an impression as to the way in which the applicant might fare in those proceedings. The tension between these propositions suggests that this is not one of those “straightforward” applications.
5. The Test
- In determining the correct approach to be taken there is some assistance to be derived from cases in which courts have provided advice to trustees.
- On the basis of those authorities, it seems appropriate first to consider whether the advice being sought is meaningful, in the sense that the result of any successful appeal might benefit those for whom the receiver was acting. That is, that the litigation contemplated is not in that category of case which is agitated simply as a “matter of principle”.
- It is then necessary to consider whether the applicant has identified propositions that are properly arguable on appeal (arguable grounds).
- If the applicant can clear those hurdles, consideration turns to the exercise of a discretion which is to be informed by one or more of these considerations:
- (i)The prospects of success (and their “sufficiency”);
- (ii)The known means of the other party to satisfy any judgment;
- (iii)The potential for the litigation to deplete the trust estate;
- (iv)The costs should be the application be unsuccessful, and whether those costs are proportionate to the issues and to the significance of the case;
- (v)The irrecoverable costs even if the application is successful;
- (vi)The nature of the case and issues raised and what will be gained if the action is to succeed; and
- (vii)Any public interest factors in the case of a charitable trust. 
- These considerations are “overlapping”. Perhaps the most obvious overlap is at the point of considering “prospects of success”, which necessarily involves some concepts involved also in the antecedent question as to whether there are “arguable grounds”.
6. Is the advice sought meaningful?
- In the applicant’s proposed grounds of appeal, a submission was made that Ground 1, raised “an issue of importance as to the operation of managed investment schemes”. At the hearing before me, it was accepted that it did not matter if there was an “issue of importance” to be agitated – what matters are the interests of the beneficiaries of the fund, not those of the general public. As noted above, the advice is private – that is partly because of its personal protective role for trustees but also because the Court is essentially engaged solely in determining “what ought to be done in the best interests of the trust estate”.
- There could be a substantial financial benefit to the Fund’s members if the appeal was successful. In that way the applicant demonstrates the prospect of the advice being meaningful.
7. Arguable Grounds
- In considering the concept of “arguable grounds” for this purpose, assistance was found in two decisions of Ward CJ in Eq - Application by Muhammad Elias Attia (“Attia”)and Frost and Fallon (“Frost”). These were cases in which advice was sought as to whether it was reasonable for a trustee to continue appeal proceedings - as opposed to the more common cases of trustees seeking advice about whether to pursue first instance litigation in general.
- In both cases, her Honour cited with approval the reasoning of Hammond J in the New Zealand case of Re O'Donoghue. In particular she focused on the following passage:
“The notion that a trustee must act “reasonably”' is necessarily qualified in various ways. First, it has never been thought unreasonable for a trustee to hire a properly qualified person to carry out work which the trustee is not qualified to undertake. Second, the trustee does not have a limitless ability to resort to the law: his function is to assert the interest of the beneficiaries only to a point where there is a judicial ruling on something that is properly required, such as the construction of a fairly debatable point in an instrument, or whether the trustee ought to take a certain course. And, it has been said that a trustee has to have very good grounds before that trustee can justify an appeal, especially if costs were awarded against the estate in the Court below (see for instance Smith v Beal (1894) 25 OR 368).
- Her Honour revisited that passage in Frost, confirming that it was not for her:
“to express any opinion on the merits of the appeal sought to be propounded by the executors; rather it is necessary to assess whether there are reasonable and arguable grounds for the appeal that has been instituted such that it would be proper and appropriate for the executors to prosecute the appeal. (Indeed, Re O'Donoghue suggests that there should be very good grounds established for the prosecution of an appeal, at least where a costs order has already been made against the estate).”
- I acknowledge, with respect, her Honour’s view that it is not for me to express a view as to the merits of any appeal. The identification of reasonable grounds will not do that. And an assessment as to the prospects of success need not do that either – although care must be taken with the way in which that assessment is expressed. As already noted, I am not exercising appellate jurisdiction. It follows that there cannot be an expectation that the issues will be canvassed as exhaustively as will be the case should an appeal be heard.
- Both exercises do, however, require that at least basic analysis be performed upon the grounds of appeal proposed by the applicant.
(b) Summary of proposed grounds
- For the purposes of this application, I was provided with the notice of appeal, a “statement of facts” and a “summary of proposed submissions as to the grounds of appeal” (“summary”).
- The summary does not purport to replicate an outline of submissions such as might be placed before the Court of Appeal, but it performs much the same function. It facilitates a review of the proposed appeal grounds, but that exercise is performed here only so far as is necessary for the purposes of some observations I shall make about them.
Construction of statutory provisions
- Section 601FD(1)(c) of the CA provides that:
“An officer of the responsible entity of a registered scheme must:
- (b)exercise the degree of care and diligence that a reasonable person would exercise if they were in the officer’s position; and
- (c)act in the best interests of the members and, if there is a conflict between the members’ interests and the interests of the responsible entity, give priority to the members’ interests;
- Jackson J discerned that this subsection created separate duties:
“ Returning to s 601FD(1)(c), as a matter of grammar, there are two clauses of that paragraph. The first clause provides that the officer must “act in the best interests of the members”. The second clause provides: “and, if there is a conflict between the members’ interests and the interests of the responsible entity, [the officer must] give priority to members’ interest.” As a matter of ordinary meaning and grammar, the first and second clauses provide for separate duties.
 So much was authoritatively decided by the High Court in Australian Securities and Investments Commission v Lewski: …..”
- As to the second duty, his Honour found that:
“ “… on the proper construction of the provision, the interests of the responsible entity do not include the duty of the responsible entity as trustee of another trust to the beneficiaries of that trust.”
His Honour identified (in -) of his judgment, four separate reasons for this conclusion.
- It followed, from that conclusion, that the second duty created by s 601FD(1)(c) had no application in the case before him, and that the applicant could not succeed on the basis that it did.
- In support of the proposed Ground 1 of the appeal, the applicant disputes the correctness of Jackson J’s conclusion and directly engages with each of the reasons given by his Honour for its finding. In that way, the applicant’s argument is comprehensive. It is, however, noted that the applicant’s submissions under this heading conclude with the proposition that his Honour’s construction is an “unlikely” one – as opposed, say, to one that has been reached contrary to settled authority.
Grounds 2 and 3
First Limb/”the best interests element” of s 601FD(1)(c)
- The applicant proposes also to challenge Jackson J’s treatment of the first duty created by s 601FD(1)(c) of the CA, the operation of which was, according to his Honour, the issue on which this case turned.
- In particular, the applicant suggests that when determining the scope of the duty, it is necessary to draw a distinction between the situation that might exist in the case of an unregistered managed investment scheme (to which his Honour’s reasoning was allowed to be applicable) and the “full tenor of a statutory duty to act in the best interests of the members of any registered management investment scheme”.
- Although not necessary for this purpose, the applicant submits that the “controversy” exposed by his Honour’s reasons would benefit from appellate consideration. From that (and other parts of the summary) I do, however, infer (again), that the issue is not governed by the application of binding authority, such that it cannot easily be certified that his Honour erred.
Failing to determine the content of the duty
- The applicant goes further, and submits that at no point did his Honour purport to circumscribe the ambit of the duty created by this part of the section. He points to the views expressed by his Honour that, under this heading, “… none of the parties respective positions is entirely borne out”, and that “Before going further, it will be necessary to consider the facts of this case more closely.”
- However, his Honour did not, so it is submitted, return to this question. He did not, therefore, define the scope of the “first” or “best interests” duty. In the absence of such a finding, so the argument runs, it was not open to make a finding as to whether that duty had been breached.
- The applicant has analysed the balance of his Honour’s judgment and has, apparently, established that his Honour did not return explicitly to consider the precise ambit of the duty.
- As a general proposition, I accept the logic in the applicant’s submission that “… a finding as to the scope of the “best interests” duty was necessary before breach and causation in respect of that duty were considered”. However, I query whether his Honour did, by use of the words “before going further” impliedly mandate that in this case it was necessary to - or undertake that he would - do so. The nature of the relevant duty is one that has been recognised in other contexts to be “protean”. It may be that a functional finding can be distilled from something else written by his Honour. Only full argument that examines all of the 160 paragraphs which follow the sentence beginning “before going further” will permit such a conclusion. Again, whilst the proposed ground appears to be supported by some rational analysis, it is not a ready and explicit encapsulation of a basis upon which it can be seen that his Honour’s reasoning is demonstrably wrong.
- Jackson J found at :
“The plaintiff alleges that the damage that resulted from the defendants’ contraventions of the duty to act in members’ best interests or the duty of care and diligence to members was that the FMIF did not receive the amount that was received by LMIM as trustee for and credited to the MPF. That is to say, the damage was the amount of the settlement proceeds that PTAL as custodian for the FMIF did not receive. The plaintiff did not contend at this point that the amount formed part of the plaintiff’s scheme property before it was received by LMIM as trustee of the MPF. The issue between the parties is whether that damage resulted from the alleged breaches of duty, so as to entitle the plaintiff to an order for compensation under s 1317H of the CA.”
- The applicant identifies five separate aspects of the record that seem to establish that he did, indeed, contend that the settlement proceeds were scheme property.
- The applicant does not, however, address the significance, if any, of the words “before it was received”. Nor does he suggest any error is involved in the last sentence of the paragraph quoted. Rather, error is said to be demonstrated because it can be established that the applicant’s submissions were not “properly considered”.
- Even if I accepted this submission, I would have to go on and consider the type of resistance that might be encountered when it is averred that an appeal should succeed because something was not “properly considered”. Such an assertion usually leaves open the question whether, even if there was an error in this part of the judgment, it was one that had functional effect.
Grounds 5 and 6
The existence and content of an “Understanding”
- As put by the applicant:
“A substantial factual issue in the case was whether there was an “Understanding” among the directors to the effect that the MPF would be paid a portion of any settlement proceeds. That was put forward as an explanation or justification for the directors conduct in causing $15.5m of the settlement proceeds, which would otherwise have been paid to the FMIF, to be paid to the MPF.”
- The applicant maintained there was no such “Understanding”, that even if there was it was not certain or binding (in that it did not require the directors to make the payments as they did) and that there was an alternative (and better) explanation for MPF having funded the litigation.
- The applicant avers that his Honour proceeded on the basis that there was such an “Understanding”, but that he made no clear finding as to its actual content or effect.
- Under this heading the applicant – as a potential appellant – faces the sometimes problematic obstacle presented by findings of fact made by a primary judge. However, he has demonstrated that when dealing with the applicant’s submissions on this point his Honour did not make reference to relevant material that was inconsistent – perhaps strikingly so – with the ultimate conclusion that he drew.
- The applicant maintains that on a rehearing of the matter this issue might be resolved differently. The relevant evidence is in the form of emails. The Court of Appeal is as well placed to assess them as was his Honour.
- There was some attraction to the applicant’s argument under this heading. Any error made about the “Understanding” does seem to be one that may have had a functional effect. For such an error to be established would, however, depend upon conclusions of fact that would have to be drawn by the Court of Appeal, with each member performing their own assessment of and drawing their own conclusions about the evidence.
Grounds 7 and 8
Failure to find breach of s 601FD(1)(c) and failure to find a breach of s 601FC(1)(b)
- It is said that success on Ground 7 would follow from the conclusions reached on the Grounds already considered.
- Ground 8 is predicated on the proposition that his Honour made numerous errors that are exposed by a proper understanding of the circumstances relied upon for the purposes of Ground 5.
- It was allowed, at the hearing of the application, that there was nothing to be said in advance of these grounds that had not already been covered under the heading of one of the preceding grounds.
Grounds 9 and 10
Failure to find causal link to loss and failing to determine s 1317S defences
- These grounds too were both said to be matters that “followed through” after consideration of the other grounds.
(c) Counsel’s opinion
- An application of this kind may be supported by an opinion from counsel. The applicant provided me with two such documents (“the opinions”). One is an advice on prospects given before the trial; the other specifically relates to the proposed appeal.
- The status of such opinions has been the subject of judicial consideration but it is again necessary to reflect on the unique nature of these proceedings. The application relates to “justification” for an appeal. To that end, I am concerned that these opinions are of limited value for the purpose of identifying grounds that might reasonably be argued in the Court of Appeal.
- This is in part because a barrister’s opinion about what might have been an error is, for so long as it is in the form of an opinion, not something that can be cited in argument – not, at least, without anticipating a negative reaction from the Bench. It becomes valuable only if it is converted into an argument that can be advanced in court. There should be no difficulty with this, because “almost any matter which could be contained in an expert opinion could also be made in submissions”.
(d) Arguable Grounds - Conclusion
- Helpfully, in this case I did have the applicant’s “summary of proposed submissions as to the grounds of the appeal”. Senior counsel for the applicant spoke to this document and was able to field questions from the Court about it. The hearing involved a “reasonable argument”. Although it did to some extent involve an unwieldy number of grounds, the forensic complaints about the judgment at first instance were identifiable. Consideration was given to whether it will be necessary, in order to succeed on appeal, for more than one finding or ruling to be overturned. Thought was also given to the question of whether the result of a successful appeal would be a retrial, or the final disposition of the matter. In this way the applicant showed that the proposed grounds were thoughtful and logical.
- Mr Peden QC did not challenge any of them. This was understandable. He could not be expected to “poke holes” in an argument that might yet prove to be of benefit to fund members. However, I think that his duty would have extended to pointing out - had he thought it was the case - that the grounds as drafted and supported by “proposed submissions” were plainly unarguable. He did not do that.
- As recorded above, I have reviewed all of the grounds. There are some unanswered questions, and I shall return to consider the relevance of that. However, on the basis of the summary and the “reasonable argument” that occurred during the hearing, and allowing for the suggestion that in this type of case (involving an appeal and a costs order) the grounds themselves may have to be “very good”, I am prepared to find that the applicant has demonstrated a “reasonably arguable” basis upon which to bring an appeal.
7. Discretionary considerations
- As noted above, the decision as to whether advice should be given might be affected by any one of a number of overlapping considerations. Two have particular relevance in this case – the prospects of success and the “known means” of the defendants/respondents or “proportionality” involved in pursuing the application.
(a) Counsel’s opinion
- I have already concluded that the grounds advanced are “reasonably arguable”. There is overlap between that conclusion and assessment of an appeal’s “prospects of success”. However, the very fact that they are considered separately demonstrates that the existence of “reasonable grounds” does not, of itself, establish that the applicant is “justified” in pursuing the appeal. Attention reverts therefore to the opinions of counsel, and to anything that they may add to an assessment of “sufficiency”. As already noted, I have found it unnecessary to rely upon counsel’s opinions for the purpose of assessing the arguability of the grounds. But it will always be open for counsel, in an opinion, to do more than articulate a ground of appeal and the argument which might support it. Counsel can, and often do, warrant the validity of an appellate venture by affirming some degree (and it will usually be expressed in matters of degree, and rarely in absolute terms) of confidence in the outcome.
- As noted, the applicant has submitted two opinions. They were both written by Counsel who conducted the trial. They were placed before the Court on a confidential basis and the Court was closed for the purposes of some submissions that were made about them. The applicant, on the basis of legal professional privilege, continues to oppose their disclosure – even to the respondent whose interests, as noted above, align with those of the applicant.
- Mr Peden QC objected to the admission of these documents, in effect maintaining that I should not have regard to them unless they could be shared with his client. It is said the situation involved “common interest privilege”, and that if at least the second opinion is not disclosed, then, so it is submitted, the Court should decline to provide the advice requested.
- Much energy was spent, by both parties, addressing this issue. They asserted the appropriateness of their own positions and made submissions about the interpretation of the English authorities which set out the principles applicable to disclosure of advice in the context of legal professional privilege. Ultimately, however, I have formed the view that the perceived importance of this advice – and of the fact that it was asserted to be confidential - was misplaced.
- I am prepared to admit both opinions into evidence (they will be exhibits 1 and 2). I have considered their contents and the submissions made (in closed Court) about them. And even though I have admitted them I am, in the circumstances, still prepared to hold that there is no need for the liquidator to see them, and that they should remain confidential. This is because I have concluded that, for my purposes, the opinions provided are of limited utility. The real issue that I have with them is that they were provided by trial counsel.
- It is trial counsel who, as noted, drafted the grounds of appeal and foreshadowed the submissions which will support them. Those submissions no doubt reflect his legal opinion, and have been presented as persuasively as could reasonably be expected. In doing so, as noted above, he has established “reasonable grounds”. However, to establish the prospects of success on those grounds, and to establish them with a degree of sufficiency that would lead me to exercise my discretion in the applicant’s favour, it would have been helpful to have some independent assessment performed by counsel experienced in the jurisdiction.
- If I am being asked to regard the opinion as something that has more persuasive value than the propositions already advanced in submissions (for example, by way of an optimistic projection as to prospects of success), I perceive an inherent limitation in anything that can be provided by trial counsel.
- One of the reasons people engage a barrister is because, subject to the duty they owe to the court, good barristers will invest themselves entirely in their client’s case. They will, so long as it is not misleading anyone, own the argument and present it in the best possible form. Nothing concentrates this process as much as the forensic crucible of a trial.
- Trial counsel remains independent in the sense that every barrister’s opinion is their own, and counsel are always mindful of their duty to “act independently”. However, the articulation of their own argument during the trial process can entrench a perception as to the correctness of that argument. When advising about an appeal there is a natural desire for an opinion genuinely thought to be correct to be vindicated. There is nothing wrong with that (it is just one dimension of the “investment” identified in the previous paragraph), and it was not wrong, in circumstances where time was running, to lodge an appeal based on trial counsel’s advice.
- However, in the context of an application like this, the persuasive value of the opinion cannot rise above its source. And in such an application the Court will necessarily be wary about acting on opinion that can never be certified as completely objective. Since it is the Supreme Court that is being asked to advise that a certain course is “justified”, it seems to me reasonable to ask whether that which the applicant has placed before me represents “best practice” in this case. For the purposes of justifying appellate litigation of the kind contemplated, in my view “best practice” involves securing advice that is “independent” in the sense that it comes from someone who has had no previous legal or intellectual investment in the case. It should come from someone whose reasoning can be exposed as the product of dialectic in which competing contentions have been scrutinised, free from any pre-existing impressions or conclusions.
- My conclusion as to the requirements of “best practice” in this case is informed by the view that:
“The procedural objectives of speed and efficiency served by judicial advice proceedings cannot, in many cases, be achieved unless the Court is presented with the assistance of a memorandum of opinion by an independently-minded lawyer who, out of court, has studied the problem to be solved, examined the factual context critically, analysed competing contentions in a comprehensive legal context, and worked out a solution that commends itself to his or her professional judgement, a judgment upon which the Court can responsibly be invited to rely.”
- The function performed by this notional lawyer is different from the one performed by counsel whose study, examination, analysis and conclusions have been worked out not just in the advices written, but also in court. Without an independent opinion, it seems to me that there is in this case a gap in the materials that would be required to persuade me as to sufficiency of prospects – and that gap will not be filled even by the admission of exhibits 1 and 2
- I should not be taken as holding that an independent opinion will be necessary in every application of this nature.  There will be some in which it is open to draw a conclusion as to sufficiency of prospects without the assurance of such an advice. A decision made contrary to settled authority might be an obvious example. And there is no one way in which such an opinion must be expressed – an overt assertion as to prospects would no doubt be helpful, but will not always be possible. But it will always be necessary to remember the terms on which the advice is sought and the type of “reliance” that is being invited. The question in this case is whether one judge of this Court can certify that Mr Whyte is “justified” in appealing the judgment of another.
- In the absence of an independent opinion, I am left to determine the sufficiency of prospects on the basis of the materials before me and the submissions made about them. Just as it was not submitted – and I could not find – that the grounds were “plainly unarguable”, nor could it be found, with confidence, that they were clearly unanswerable. They did not involve an assertion that Jackson J decided anything in a way that was contrary to binding authority. They left open questions about the functional effect of errors averred, or involved an immeasurable degree of prognostication about matters on which different views might be taken.
- In these circumstances it is difficult, in the absence of an independent opinion, for the applicant to persuade the Court that an appeal is “justified”.
(b) Known Means
- And even if I had the benefit of such an opinion, the exercise of my discretion:
“calls for another judgment, founded upon such considerations as:
- the nature of the case and the issues raised;
- the amounts involved, including likely costs;
- whether the likely costs to be incurred by the trustee are proportionate to the issues and [the] significance of the case;
- the consequences of the litigation to the parties concerned…”
- In other words, as I apprehend it, the Court should in effect perform a type of “cost benefit analysis”. There should be some determination about the actual, as opposed to theoretical consequences of an appeal’s success or failure. This in turn must involve some assessment as to the ability of the directors to meet Mr Whyte’s claims for damages if he was successful on appeal.
- It is difficult to see how such assessment could be made other than by reference to admissible evidence. In its absence, the course to be followed was foreshadowed by Edelman J, when his Honour wrote:
“…if the material put before the Court is insufficient for the Court to make a confident answer to the relevant issues then discretion will generally be exercised to refuse to make any directions”.
- In this case there is no evidence which would allow a “confident answer” to be given to a question about the money that might be available to meet judgment obtained after a successful appeal. There is no evidence about the directors’ personal means. As to insurance, the position is summarised by the applicant himself in the statement of facts:
“The amount actually recoverable for the FMIF would depend upon what amount (if any) might still be recoverable under the respondents’ policies of insurance. Mr Whyte does not know what amount may still be recoverable under these policies.”
- The situation is therefore one in which the potential reward to beneficiaries is substantial, but there is a dearth of evidence as to the likely actual benefit that might accrue, even if the appellate process succeeds in every way.
- In other words, the “balance” to be struck is between the certainty of a negative impact if the appeal is unsuccessful as against the complete uncertainty that attends the consequences of victory.
- Money that might otherwise be distributed to a diverse group of beneficiaries has already been depleted by this and other litigation. I do not have the advantage of what I would regard for these purposes as “independent” advice from counsel, nor do I have evidence of the benefits that might be enjoyed if the applicant was to succeed on his appeal.
- Without any evidence that something might accrue to the Fund after a successful appeal, such a course of action is fundamentally a gamble. The idea of conducting or defending speculative litigation using other peoples’ money was deprecated by Bowen LJ in Re Beddoe as far back as 1893. Ultimately it is for beneficiaries that the Court must exercise its discretion.
- Notwithstanding Mr Whyte’s right to apply for judicial advice, I am not bound to give it. In these circumstances I decline to do so.
- Notwithstanding his industry and analysis, Mr Whyte will be denied the endorsement he sought. That denial involves the exercise of a discretion. I do not apprehend that my decision means the prospect of advice is res judicata. Indeed, Mr O'Brien QC acknowledged that Mr Whyte could seek another advice. He could re-present armed with an objective opinion and with evidence of the respondents’ financial situation. The directors’ means could be investigated, as for example by way of searches. This prospect was raised in argument, as was the possibility that the directors could be compelled to take part in a public examination pursuant to sections 596A and 596B of the CA.
- On the basis of the materials before me, however, this application is refused.
- I shall receive submissions as to costs.
A Keay, McPherson: The Law of Company Liquidation, 4th ed. (2017) at 352. Such advice might not only serve a protective purpose for Mr Whyte, but is to benefit the collective members of the fund. See Glassock v Trust Company (Australia) Pty Ltd  QSC 15 at  per Boddice J.
On 21 August 2013, by order of Justice Dalton.
Which was a registered managed investment scheme.
Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 at  per Gummow CJ, Kirby, Hayne and Heydon JJ (“Macedonian”).
See Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor  66 NSWLR 112 at  per Beazley JA and Giles JA; Harrison v Mills and Others  1 NSWLR 42 at 45 per Needham J; Carr v Larussa  WASC 176 at ; Re Murphy; Ex parte BPTC Ltd (in liq) (1996) 19 ACSR 569. It should be noted that in Klatt v Coore  QSC 196 at , Atkinson J stated that the decision in Macedonian made it clear that “nothing warrants limiting the powers given to the court by reference to some proceedings as ‘adversarial’ and some as not.”
Mr BT Cohen of Bartley Cohen for the first respondent observed the application hearing by way of video link but did not wish to make any submissions.
Alternatives were suggested, but this was where the liquidator’s submissions crystallised. T1-107 L34.
Future references to this decision will be cited only as being per Jackson J.
Per Jackson J at  – other footnotes omitted.
Relevant entities are identified in citation per Jackson J at .
Per Jackson J at  and .
Per Jackson J at . Potential consequences, if it was such a contravention, were canvassed by Per Jackson J at .
The expected total recoverable costs of the director defendants would be at least $2 million, “but potentially more”. See the affidavit of Scott Couper 31 January 2020 at .
T1-26 – T1-27; Affidavit of Millicent Russell 21 May 2020 at 5.
Liquidator’s submissions at . At the hearing (T1-107 L33-35), Mr Peden QC confirmed that this was the thrust of his argument as opposed to alternative suggestions – contained in written submissions - that first, the application be adjourned to allow the Receiver to provide the legal advice about the prospects of appeal (and his confidential affidavit) to the Liquidator to read and consider, or alternatively, if the Receiver maintained his resistance to that course, the Court ought to dismiss the Application without providing any advice, on the basis that the beneficiaries have not had a right to be heard.
Liquidator’s submissions at -.
It would be a brave litigant who proceeded on the basis of an assumption that they made about the way in which the Court of Appeal will decide anything.
 QSC 126 at .
(2002) 42 ACSR 240 at . In the same paragraph, his Honour also referred to the decision of Young J (as his Honour then was) in Glazier Holdings Pty Ltd v Australian Men’s Health Pty Ltd Unreported, Young J, NSWSC, 30 April 1998, which confirmed that there is a jurisdiction to give judicial advice to a receiver, “although the applicable principles are not necessarily in all respects the same as those which apply in the more commonly encountered cases of judicial advice to trustees and directions to liquidators”.
T1-13 – T1-14.
See Hart J in Public Trustee v Cooper  WTLR 901 at 36: “examples of that, which are very familiar in the Chancery Division, are a decision by trustees to sell a family estate or to sell a controlling holding in a family company”; Re Cassidy  VR 369; Bullas v Public Trustee  1 NSWLR 641.
And the submissions made about them by the parties, who were agreed upon the approach to be taken.
Re Frost  NSWSC 591 at .
Set out by Edelman J in Plan B Trustees Limited v Parker [No 2]  WASC 216 (“Plan B”).
Plan B at ; See also Macedonian at 119 .
Plan B at . See also Re Estate of Anastasios Keriacules Challis (Dec)  WASC 333 at  per Allanson J: “There are competing considerations: the prospect of success; the potential to deplete the estate; costs should the application be unsuccessful; and what will be gained if the action is to succeed.”; Watson v Yore  QSC 339 at  per Holmes J (as her Honour then was).
Macedonian at  per Gummow A-CJ, Kirby, Hayne and Heydon JJ.
Marley v Mutual Security Merchant Bank and Trust Co Ltd  3 ALL ER 198 at 20. Emphasis added. See also Macedonian at  per Kiefel J (as her Honour then was); Glassock v Trust Company (Australia) Pty Ltd  QSC 15 at  per Boddice J; Re Public Trustee of Queensland  QSC 281 at  per Applegarth J; Watson v Yore  QSC 339 at  per Holmes J (as her Honour then was).
The application was brought on the basis of a “statement of facts” about which there is no dispute. It asserts potential damages of $15,546.147 (plus interest) along with other indirect benefits such as the costs of the proceedings and appeal.
 NSWSC 94.
 NSWSC 591. See also a similar proceeding in Alan Maxwell Frost and Diana Catherine Fallon  NSWSC 1619.
 1 NZLR 116.
At  emphasis added.
Frost at . Underlining and bold print added.
See - below.
(2018) 362 ALR 286.
In an argument developed between  and  of the summary.
Jackson J at .
Summary at .
Summary at .
Per Jackson J at .
Per Jackson J at .
Summary at -.
Summary at .
Per Jackson J at .
Summary at -.
Summary at .
Jackson J at .
Jackson J at - .
See Fox v Percy (2003) 214 CLR 118; Uniform Civil Procedure Rules (Qld) 1999, r 765.
Summary at .
Attia at ; Application of NSW Trustee and Guardian, Re  NSWSC 423 at ;
See in particular the discussion in Re Estate Late Chow Cho-Poon; Application for judicial advice  NSWSC 844 at 107]- per Lindsay J.
The Macquarie Dictionary defines “justified” as 1. To show (an act, claim, statement, etc.) to be just, right, or warranted: the end justifies the means. 2. To defend or uphold as blameless, just, or right. 3. declare guiltless; absolve; acquit.
As discussed below - there are limitations also to their value in determining whether an appeal might enjoy sufficient prospects of success.
Plan B at .
By reason of the inclusion of Grounds 7, 8, 9 and 10.
T1-87 L18-20; T1-90 L15-25.
The proposed Grounds 9 and 10 deal with the significance of Jackson J’s conclusion that it was unnecessary for him to consider whether the directors should be excused from liability under the defences outlined in s 1317S of the CA. The liquidator raised a concern (in  of its submissions) that because Jackson J did not address these potentially exculpatory provisions, if the appeal was successful the matter would have to be remitted to the trial division for factual determination – potentially therefore incurring yet more costs for the beneficiaries. However, upon revisiting this submission at the hearing it was accepted that the matter would not have to be remitted (T1-94 L14).
Plan B at .
Hancock and Another v Rinehart and Others (2013) 96 ACSR 76 at 101 ; Degiorgio v Dunn (No 2)  NSWSC 3 at .
Alan Maxwell Frost and Diana Catherine Fallon  NSWSC 1619 at  per Darke J.
Corbiere & Anor v Dulley & Ors  QSC 134 at . See also eg, Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor  66 NSWLR 112, 114-115, per Beazley JA and Giles JA; Coore v Coore  QSC 196 at  per Atkinson J.
Affidavit of Millicent Russell, 21 May 2020, at 5; T1-26 – T1-27.
Liquidator’s submissions, at -.
See generally the authorities discussed in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor  66 NSWLR 112 at 115-122 per Beazley JA and Giles JA.
The confidential advices that have both been read by me are admitted and marked collectively as MFI A. In circumstances where I have acceded to the liquidator’s primary submission, I do not see that his interests have adversely been affected by my consideration of this material, and for that reason I hold that it may remain confidential. I will order that it be sealed.
Barristers’ Conduct Rules 2011, rules 4(b) and 5(e).
Re Estate Late Chow Cho-Poon; Application for judicial advice  NSWSC 844 at  per Lindsay J emphasis added. See generally  – .
See eg. SHIRLEY ELIZABETH WILLIAMS as administrator of the estate of MARGARET JANE CONGDON and GWENNETH MARGARET FLEMING as administrator of the estate of MARGARET JANE CONGDON -v- ROSS GREGORY CONGDON as administrator of the estate of WALTER EDWIN CONGDON  WASC 289 at ; Carr v Larussa  WASC 13 at –; Read v Bowesco Pty Ltd  WASC 240 at .
Grain Technology Australia Pty Ltd v Rosewood Research Pty Ltd (No 2)  NSWSC 1744 at ; Plan B at .
See  and  above.
See eg -.
See  and .
Macedonian at  per Gummow A-CJ, Kirby, Hayne and Heydon JJ. Emphasis and formatting added.
Alan Maxwell Frost and Diana Catherine Fallon  NSWSC 1619 at  per Darke J.
Plan B at .
T1-72 – T1-73.
Applicant’s statement of facts at  emphasis added. In the same statement, this is said on the issue of costs: “Mr Whyte anticipates that if the appeal proceeds, is fully defended and is unsuccessful, the FMIF will be exposed to a further liability for the costs of the respondents to the appeal. Mr Whyte’s best estimate of the standard basis costs which may be ordered against the FMIF if the appeal is unsuccessful is $500,000.” The liquidator points to this passage and, with some justification, to the speculative nature of this estimate.
 1 Ch 547 at 561-562: “to speculate in law with money that belongs to other people”.
Macedonian at 91 per Gummow A-CJ, Kirby, Hayne, and Heydon JJ, 128 per Kiefel J.
Wood (as co-executor and trustee of the Will of the deceased) v Wood [No 4]  WASC 393 at ; Re Estate Late Chow Cho-Poon; Application for judicial advice  NSWSC 844 at ; Re Application of Perpetual Trustee Co Ltd  NSWSC 1185 at .
- Published Case Name:
LM Investment Management Ltd (receiver apptd) (in liq) v Drake & Ors
- Shortened Case Name:
LM Investment Management Ltd (receiver apptd) (in liq) v Drake
 QSC 265
28 Aug 2020
- White Star Case: