Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Levy v Bablis [2012] NSWCA 128
• Hearing dates: 30 April 2012
• Decision date: 08 May 2012
• Before: Whealy JA at [1]; Meagher JA at [2]; Barrett JA at [3]

Decision

1. Grant leave to the appellant to file the amended notice of motion handed up in Court on 30 April 2012.

2. Dismiss the amended notice of motion.

3. Fix 15 May 2012 as the date by which $95,000 is to be paid into Court pursuant to Order 2 of the orders of 28 February 2012 (as subsequently varied as to the deadline for payment) and order that that Order 2 as so varied be further varied accordingly.

4. Order that the appellant pay the respondent's costs of the amended notice of motion.

[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 - security for costs previously ordered - subsequent self-executing order of dismissal if security not provided by specified date - appellant seeks discharge of latter order and variation of security order to reduce sum - whether any change in circumstances warranting review
• Legislation Cited: Civil Procedure Act 2005, ss 56 to 60; Supreme Court Act 1970, s 46(4); Uniform Civil Procedure Rules 2005, rule 51.58
• Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; Fletcher v Besser [2010] NSWCA 30; House v The King [1936] HCA 40; (1940) 55 CLR 499; Levy v Bablis [2011] NSWCA 411; Levy v Bablis [2012] NSWCA 77; Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139; Patrick v Howorth [2002] NSWCA 285; Republic of Kazakhstan v Istil Group Inc [2005] EWCA Civ 1468; [2006] 1 WLR 596
• Category: Interlocutory applications
• Parties: Julian Emmanuel Levy - Appellant; Peter Babils - Respondent
• Representation: P Menzies QC/B K Nolan - Appellant; M K Condon - Respondent; Tsolakis Solicitors - Appellant; Minter Ellison - Respondent
• File Number(s): 2006/00260173

Judgment

1 WHEALY JA: I agree with Barrett JA.

2 MEAGHER JA: I agree with Barrett JA.

3 BARRETT JA: The Court heard on 30 April 2012 applications made by the appellant, Mr Levy, in an appeal initiated by him on 18 August 2011 from a decision of Slattery J of 19 May 2011 by which claims in the amount of $1 million brought by Mr Levy against Mr Bablis, the present respondent, were dismissed and judgment was entered for Mr Bablis.

4 The case unsuccessfully pursued by the appellant as plaintiff at trial, stated in the broadest of terms, was that the respondent had induced him to put money into a "private placement investment" in which one O'Dowd played a central role, knowing that it was a fraudulent scheme. An issue determined adversely to the appellant was, in effect, whether the respondent was a knowing participant in the scheme or, as the respondent alleged, a mere conduit to O'Dowd. The essence of the alleged scheme seems to have been a form of financial leverage off a bank or bank-backed financial instrument (or something that appeared to be such an instrument).

5 Before referring to the relief sought by the appellant that became the subject of submissions made on 30 April 2012, I should outline a series of interlocutory steps taken since the initiation of the appeal by the notice of appeal filed on 18 August 2011. The present claims are more easily understood against the background of the recent history.

6 On 12 December 2011, Giles JA had before him two claims by the respondent: see Levy v Bablis [2011] NSWCA 411. One was an application for summary dismissal of the appeal; the other an application for security for the costs of the appeal. Giles JA ordered that the appellant give security for costs in the sum of $125,000 and that this be provided in two tranches, one of $30,000 immediately and the other of $95,000 after disposition of the summary dismissal motion - assuming of course, that the appeal survived that motion. Giles JA ordered that the appeal be stayed until the first $30,000 was provided and that, if it remained on foot after determination of the summary dismissal motion, there should be a stay until the balance was provided. The summary dismissal application itself was adjourned.

7 The $30,000 was provided. The summary dismissal application came before Young JA on 28 February 2012. It was dismissed by consent. Further consent orders were made at the same time. There was an order for expedition of the appeal, an order fixing for hearing on 29 May 2012 an application by the appellant for leave to adduce further evidence on the hearing of the appeal and, of particular relevance for present purposes, an order fixing 2 April 2012 as the deadline for the payment of the $95,000 balance of security, failing which the appeal should stand dismissed.

8 The last of these consent orders introduced an element that to that point had not existed. Under the 12 December 2012 orders of Giles JA, the only consequence of failure by the appellant to provide the second tranche of the security was a stay of the appeal; and that position would continue until some positive step was taken to put an end to the matter, assuming it did not proceed to a hearing. Under the order of Young JA, by contrast, failure to provide the balance of the security by the specified deadline would result in automatic dismissal of the appeal.

9 The matter came before Young JA again on 2 April 2012. His Honour had before him a notice of motion by which the appellant sought, first, discharge of the order of 28 February 2012 just mentioned (that is, the order fixing a 2 April 2012 deadline for the balance of the security and, in default, causing the appeal to be dismissed) and, second, an order relieving the appellant from the obligation to provide further security, that is, security beyond the $30,000 already provided.

10 Under s 46(4) of the Supreme Court Act 1970, the Court of Appeal may vary or discharge an order made by a Judge of Appeal; but under rule 51.58 of the Uniform Civil Procedure Rules 2005 any application for such variation or discharge must be made within fourteen days after the making of the relevant order or within such extended time as is fixed by the Court of Appeal. The appellant, in bringing his application to be relieved of the obligation to provide the balance of the security ordered by Giles JA on 12 December 2011, did not act within the stipulated period. This, plus the fact that a single Judge of Appeal cannot exercise the s 46(4) power, was noted by Young JA in reasons he published on 5 April 2012: Levy v Bablis [2012] NSWCA 77.

11 Young JA nevertheless proceeded to consider the merits of the proposition put by the appellant that he should be relieved from the obligation to provide the balance of the security, stating that the order for security made by Giles JA was an interlocutory order susceptible to variation at any time; but that an interlocutory order should not be varied unless there has been a material change in circumstances. He cited Republic of Kazakhstan v Istil Group Inc [2005] EWCA Civ 1468; [2006] 1 WLR 596.

12 Young JA then considered two matters put forward by counsel for the appellant as constituting changed circumstances: first, that in December 2011 the appellant thought there was a possibility that he could raise the necessary money from others but that had proved not to be feasible; and, second, that the material said to show a strong case for the admission of fresh evidence had considerably strengthened.

13 Young JA decided that the requirement for changed circumstances had not been satisfied. He declined to relieve the appellant of the obligation to provide the balance of security. He also declined to discharge the self-executing order for dismissal of the appeal if the balance was not provided - although he did, having regard to the fact that he had, at the end of the hearing on 2 April 2012, extended the deadline to 5 April 2012, further extend it to 10 April 2012.

14 On 10 April 2012, the appellant filed a further notice of motion. It was that notice of motion that came before the Court on 30 April 2012 and with which these reasons are concerned. In the meantime, there had been orders extending the deadline for provision of the balance of the security, most recently until 1 May 2012.

15 At the conclusion of the hearing on 30 April 2012, the Court reserved its decision and made an order extending the security deadline until further order, indicating that it would deal with the matter of any new deadline in its reserved decision, the aim being that the status quo should continue pending delivery of judgment.

16 It is against this background that the application to which these reasons relate is to be understood.

17 By the notice of motion filed on 10 April 2012 and heard by the Court on 30 April 2012, the appellant sought a stay (until further order) of the self-executing dismissal order made by Young JA on 5 April 2012; discharge of all orders made by Young JA on 5 April 2012; and variation of the order of Giles JA of 12 December 2011 so that the requirement for the additional $95,000 security should cease to apply and the $30,000 already paid should constitute the full security to be provided.

18 The claim for stay of the self-executing order of 5 April 2012 and the claim for discharge of all orders of that date are necessarily alternative claims. The appellant acknowledged that none of that relief can be obtained unless Young JA is shown to have been in error of the kind referred to in House v The King [1936] HCA 40; (1940) 55 CLR 499 at 505. That concession was rightly made, given the s 46(4) context. In Patrick v Howorth [2002] NSWCA 285, Heydon JA said with the concurrence of Hodgson JA and Young CJ in Eq (at [9] - [10]):

"This is an application by Notice of Motion dated 26 July 2002 for a review of Handley JA's order pursuant to s 46(4) of the Supreme Court Act 1970.

It is not open to this Court to make, or to refuse to make, an order for security of the kind which it or its individual members would have made had it or any of them been sitting to determine the respondent's original application for security for costs. According to Mahoney JA in Wentworth v Wentworth (1994) 35 NSWLR 726 at 731, it is necessary to show that Handley JA misdirected himself in principle or that his order was plainly wrong. According to Handley JA in Wentworth v Wentworth at 733, the court's power of review is subject to the principles relevant to the review of interlocutory discretionary decisions on matters of practice and procedure. According to Powell JA in Wentworth v Wentworth at 737, the party seeking review must demonstrate that the discretion plainly miscarried. These tests overlap. A review of the decision to order an appellant to provide security for costs, like other s 46(4) reviews of procedural decisions, will ordinarily not succeed unless the decision turns on an error of law, a material error of fact, a failure to take into account some material consideration or the taking into account of an irrelevant consideration, or unless the decision is so unreasonable as to suggest that one of these types of error has been committed even though it does not appear on the face of the reasoning."

19 The present claims in respect of Giles JA's orders, by contrast, make it appropriate to consider, in the first instance, whether circumstances have changed in any material way since those orders were made. In Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139, Heydon JA said (at [72]):

"[T]he Nominal Defendant's proposition that no second interlocutory application can be entertained unless there is a change of circumstances or unless evidence is relied on which could not reasonably have been obtained earlier is too extreme, but a litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion." ..."

20 As this Court recognised in Fletcher v Besser [2010] NSWCA 30 at [17], the subsequent enactment of ss 56 to 60 of the Civil Procedure Act 2005 raises a real question whether a second application should ever be granted where it is based on evidence that was available at the time of the earlier unsuccessful application.

21 At the commencement of the hearing on 30 April 2012, counsel for the appellant sought leave to file an amended notice of motion by which the claim for an order varying the order of Giles JA was omitted and there were two additional claims in the alternative: a claim for an order that the requirement for the balance of $95,000 be dispensed with; and a claim for an order that, in effect, the requirement with respect to the balance become a requirement that $28,498 be paid within seven days (in the course of submissions, counsel for the appellant indicated that this should now be understood as $38,498 rather than $28,498).

22 The Court indicated that its decision on the application for leave to file the amended notice of motion would form part of its reserved judgment.

23 Counsel for the appellant made it clear at the hearing on 30 April 2012 that no challenge is made to or issue taken with anything decided by Giles JA on 12 December 2012.

24 In relying on s 46(4) in relation to the 5 April 2012 orders by Young JA, the appellant notes that his notice of motion of 10 April 2012 was filed within the time limit made relevant by rule 51.58 of the Uniform Civil Procedure Rules (the orders that were the subject of the application were made on 5 April 2012). In addition, the appellant accepts, as I have said, that, in order to obtain discharge of the orders made by Young JA, he must demonstrate error on the part of Young JA within House v The King.

25 The error of Young JA is said to be threefold: first, that his Honour mistook facts in rejecting the proposition that there had been a material change in circumstances relevant to the appellant's financial capacity to provide the balance of the security; second, that his Honour unreasonably drew inferences about when material potentially relevant to the aspect of the appeal involving adducing of additional evidence came to light; and, third, that his Honour failed to take account of a particular matter concerning the availability of additional evidence.

26 The evidence tendered by the appellant before Young JA consisted of:

(a) an affidavit of the appellant dated 30 March 2012;

(b) an affidavit of his current solicitor dated 1 April 2012;

(c) a judgment of the Supreme Court of Queensland.

27 The appellant's affidavit detailed his attempts to obtain further finance and his lack of success. The affidavit contained these statements:

"I have exhausted all other avenues for funding.

I have no assets that can be sold to raise funds."

28 The affidavit also referred to outstanding debts of significant amounts (of the order of $560,000) to legal advisers and to the fact that two firms of solicitors who had previously acted were unwilling to continue, with one of them refusing to release files.

29 The affidavit of the solicitor now acting for the appellant referred to and annexed statements and statutory declarations (some unsigned) of persons from whom the appellant proposed to obtain further evidence. Details of these proposals will be addressed presently. The documents concerned were put before the Court on the present applications.

30 Young JA, as I have said, approached the matter before him on 2 April 2012 on the basis that he might relieve the appellant of the obligation to provide the $95,000 balance of security only if some material change of circumstances were shown.

31 On the question of changed circumstances regarding availability of funds, Young JA said at [22]:

"I do not consider that the first matter is one of changed circumstances. A litigant is expected to put forward at the first hearing of an application all the material that is relevant for the judge to rule on the application. At [10], Giles JA observed that the appellant had not put forward any evidence to speak of as to his financial circumstances or the unlikelihood of getting assistance from others. Even now, there is nothing to show whether, had Mr Levy made all proper enquiries last December, he would not have found out that there was little chance of others assisting with providing security. It does not appear to me that circumstances here have changed since Giles JA made his order, merely that if the appellant had a belief last December that belief was held on inadequate grounds."

32 This is, in my respectful opinion, a fair and accurate assessment of the evidence that Young JA had before him in the appellant's affidavit of 30 March 3012. His Honour is not shown to have acted on a wrong principle or a mistake as to the facts; nor is it shown that he took into account some irrelevant consideration or failed to take into account some material consideration. Error within House v the King is not shown.

33 Young JA then dealt with the foreshadowed further evidence and the question of material change of circumstances. He said at [23] - [26]:

"As to the second, Giles JA said he considered at [9] that one of the factors that made for special circumstances was the likely weakness of the appeal. There is now an affidavit from Mr Tsolakis, solicitor, which annexes a number of statutory declarations almost all of which were declared in the months of August and September 2011, though one bears date 11 December 2011.

Mr Tsolakis swears that this material came to light as a result of a newspaper article in October 2012. This must be a typo, probably for 2011 as the article is said to be after Slattery J's judgment. (Other evidence refers to the Sydney Sun Herald of 1 October, though the year is not stated). If "2012" should read "2011", this does not fit well with statutory declarations made in August and September. However, this is a minor point. Mr Tsolakis says that "I am informed and verily believed [sic] that this information was not made available to (Mr Levy) when the matter last came before the court". However, the Court is not informed by Mr Levy just how much he did know.

The onus was on the applicant last December to put all the relevant material before the Court. Even now, I am in the unsatisfactory position of not being told by Mr Levy just what he knew about the matters now revealed in the statutory declarations when the matter was before Giles JA. One would have expected that if some journalist had written an article on the subject suggesting that Slattery J had got it wrong, there would be material there to make a reasonable person pursue it before the motion was considered by the Court. Yet we are not enlightened.

The statutory declarations are in quite inadmissible form and display considerable personal anger against the respondent. That not only weakens their credibility, but also raises considerable material for cross-examination in due course. They also contain a considerable amount of hearsay and the feelings that the maker had about various issues."

34 Again (and as will be confirmed when the question of material change of circumstances is addressed afresh below), this is a fair and accurate assessment of the position presented by the solicitor's affidavit of 1 April 2012 and its annexures. No wrong principle was applied. No activating mistake was made. Relevant matters were not overlooked and irrelevant matters did not form the basis of the decision. No House v The King error is shown.

35 No basis has been shown for thinking that the decision of Young JA was, in either of its branches, unreasonable or unjust or not soundly based. The appellant has not established a basis on which this Court could properly exercise its discretion under s 46(4) of the Supreme Court Act to discharge or vary any of the orders of Young JA made on 5 April 2012.

36 I proceed, therefore, to the question whether the appellant has now shown, independently of the attempts made before Young JA, any basis for exercise of the Court's inherent jurisdiction to discharge or vary any of the existing interlocutory orders in the way now sought. A significant factor in that inquiry is whether any material change of circumstances has arisen. The inquiry must logically have at its starting point each of two dates: 12 December 2011 when Giles JA made orders and 5 April 2012 when Young JA made orders. However, the appellant does not argue for any finding of changed circumstances since 5 April 2012, with the result that the focus is on the period since 12 December 2011.

37 Two general lines of inquiry must be pursued. The first concerns the appellant's financial capacity and his ability to raise money to satisfy the obligation to provide security. The second concerns the strength of the appeal and, therefore, two questions in respect of the further evidence the appellant will seek to adduce: first, its relevance and cogency, viewed in light of the issues determined by the primary judge; and, second, when it was in truth available, in the sense that the appellant could have taken steps to put it forward as part of his case. This second question focuses on two distinct points of time: the time of the hearing before the primary judge and the time of the hearing before Giles JA on 12 December 2011.

38 I deal first with the matter of the appellant's financial capacity.

39 Before Giles JA, the appellant argued that an order for security would stultify the appeal. His Honour said, however, that there was no evidence from the appellant himself as to his ability to continue with the appeal if security was ordered, "or indeed any evidence to speak of from the appellant as to his financial circumstances". He continued at [10]:

"The fact that he is impecunious does not of itself show that the appeal would be stultified if security were ordered; see Hastings v Hastings [2009] NSWA 294 at [14] where that proposition is stated and it is pointed out that the possibility remains in many cases that there are others such as litigation funders, family or associates who may step in to assist."

40 The evidence before the Court on 30 April 2012 expanded upon the matter of availability (or unavailability) of funds only to the extent of referring to the fact that certain friends of the appellant had made available $38,500 to assist him and that other attempts to obtain financial resources (including two attempts to commercial litigation funding) had been unsuccessful; also that the appellant is working as a waiter and earning $700 net per week. For the first time there is reference to the financial resources of his domestic partner.

41 I turn now to consider the matter of further evidence - noting, at the outset, that the further evidence foreshadowed both before Giles JA on 12 December 2011 and before Young JA on 5 April 2012 was confined to evidence concerning a company called Sherwood and a person called Collett. The additional evidence now envisaged, if it ever becomes available in admissible form, is that of ten witnesses: the appellant himself, Mr Alexiou, Dr Phillips, Mr Daley, Ms Bakis, Mr Petroulias, Professor Richards, Ms Richards, Mr Buck and Mr Drew. The evidence goes to two distinct subjects.

42 The proposed evidence of the appellant, Mr Alexiou and Dr Phillips concerns a matter that was of significance in the primary judge's decision: whether the appellant and the respondent met and conversed on 15 June 2005. That question is canvassed at paragraphs [122] and following of the primary judge's judgment. His Honour had conflicting evidence on the matter from the appellant and the respondent. After a full review of the evidence, he concluded that the meeting and conversation had occurred at the respondent's Double Bay premises on 15 June 2005, commencing at about 6pm.

43 The appellant wishes to give evidence that he could not have been at Double Bay at the relevant time on 15 June 2005 because he was on his way to the State of Origin Rugby League match at the Homebush stadium. He wishes to adduce evidence from Mr Alexiou that they (together with Mr Alexiou's father) travelled to the stadium by car and (by reference to the starting time of the football match) of the time they arrived, from which inferences might be drawn as to when they began their journey (the appellant says that he went from Woollahra to Mr Alexiou's house at Erskineville and that the three men travelled together from there).

44 This evidence as to what happened in June 2005 was, one must think, well and truly available at the time of the hearing before the primary judge and when Giles JA heard the security for costs motion on 12 December 2011. The appellant says, however, that he suffers from Lyme's Disease (diagnosed in 2005) which affects the memory and that it was only when he happened to see a State of Origin match on television on 15 June 2011 that he suddenly remembered having been at a corresponding event on the corresponding date in 2005.

45 Even if it is accepted that the appellant's memory was affected so as to make him unable to remember, at trial in 2009-2010, his attendance at the football match in 2005 (a matter on which he proposes to lead evidence from Dr Phillips) and that he did go to the Homebush stadium on 15 June 2005 with Mr Alexiou (whose affidavit of 29 April 2012 has annexed to it an email of 10 August 2011 from the organisers of the sporting fixture confirming purchase of tickets for 15 July 2005, not 15 June 2005), the conclusion is simply inescapable that all the material was available well in advance of the 12 December 2011 hearing before Giles JA. The appellant's sudden recollection when watching television occurred, he says, on 15 June 2011.

46 I turn now to a number of statements of persons said to have had dealings with the respondent or O'Dowd (and sometimes both) in relation to "private placement investments". This material is said to be material to displace the finding that the respondent was, in effect, a mere conduit of O'Dowd in relation to "private placement investment" and to show that he was in reality, a knowing participant in the promotion of fraudulent schemes.

47 Mr Daley has signed a witness statement dated 16 August 2011 headed "In the matter of Pauline Dabellic and Peter Bablis". The statement refers to events in the August 2011 (and certain earlier events) involving Mr Petroulias (his solicitor and friend) which included Mr Daley's payment of $40,000 for the purposes associated with the present respondent, which sum was then sent overseas and apparently lost. The implication is that some false investment scheme was involved and that the respondent and an associate, Ms Dabellic, were promoters of it. Recent attempts by the appellant's solicitor to find contact details for Mr Daley have been unsuccessful.

48 Ms Bakis has signed a written statement headed in the same way as Mr Daley's statement. Ms Bakis's statement is dated 16 August 2011. She refers to contacts between Mr Petroulias and the respondent and her observation about the subject matter of the contacts. Mr Petroulias asked Ms Bakis to provide $140,000. Mr Daley was part of some conversations in which Ms Bakis participated, as was the respondent who, she says, explained that $140,000 would merely sit in a trust account as security for fees. She paid $100,000 on 1 April 2011 (Mr Daley's $40,000 was apparently the balance of the $140,000 sought). By 5 May 2011, Ms Dabellic, the respondent's alleged associate, "was looking for" a further $68,550 which was provided by Ms Bakis a week later. The funds were not recovered and various apparently inconsistent reasons were given.

49 A like witness statement of Mr Petroulias has been prepared and carries the date 14 August 2011. The statement is not signed. It refers to a close connection between Mr Petroulias and the respondent and goes into details of various conversations about money-making activities, including the matter involving payment of $40,000 by Mr Daley and $100,000 by Ms Bakis, the general thrust being one of deception and fraud. Most of the activities occurred after February 2011.

50 Ms Richards signed a statutory declaration on 11 December 2011 in which she referred to a $350,000 "investment" arranged in 2002 by O'Dowd who represented himself as an associate of the respondent. She met the respondent. She details unsuccessful efforts over a long period to trace or recover her $350,000 and the association she understood to exist between O'Dowd and the respondent. Ms Richards' version of events is substantially repeated in a statement she made to the Queensland police in September 2005. There is a subsequent statutory declaration of Ms Richards (dated 10 February 2012) in which she refers to ancillary events in the period September 2011 to January 2012.

51 Professor Richards is Ms Richards' son. He signed a statutory declaration on 29 February 2012 in which he details various investigations he had made concerning O'Dowd and the respondents and attempts to trace and recover his mother's money. Allegations of criminal conduct are made. There are references to the "O'Dowd - Bablis scam".

52 A form of what is headed a witness statement of Mr Buck is neither signed nor dated. According to its content, Mr Buck is or was the investment adviser to Ms Richards and her husband and can confirm some matters relevant to Ms Richards' complaint about Mr O'Dowd and the respondent.

53 In his affidavit of 30 April 2012, the appellant gives evidence of a meeting and discussion he had with Mr Petroulias in October 2011 following publication in the Sydney Morning Herald of an article about the appellant's case and, soon afterwards, another article about what the appellant understood to be a similar series of events concerning Mr Petroulias. It was the author of these articles, the appellant says, who gave him copies of the statements of Mr Petroulias, Mr Daley and Ms Bakis. This happened in late September or early October 2011. In his October 2011 conversation with Mr Petroulias, the appellant was, he says, told things corresponding with those in the unsigned Petroulias statement. In addition, Mr Petroulias gave him a USB stick on which was said to be recorded a clandestinely recorded conversation the parties to which were said to be Ms Debellic, the respondent and an inquiry agent posing as a businessman interested in investing.

54 The appellant's solicitor later arranged for a transcript to be made from the USB stick. This was done in April 2012. The transcript, it is said, would, if admitted into evidence, throw light on "scams" of the defendant and Ms Debellic, although the circumstances of the recording of the conversation, coupled with the hearsay rule, would, it appears, cause the alleged transcript to be excluded if there were ever an attempt to tender it.

55 I refer next to Mr Drew who, the appellant says, is an old school friend who approached him "in or about April 2012" having "heard about what I say happened to me with Bablis". Mr Drew is said to have had contacts with the respondent and to have been solicited to put money into dubious investment schemes.

56 Annexed to the appellant's affidavit of 30 April 2012 is what he says is a transcript of an interview with Mr Drew conducted by junior counsel for the appellant and, with Mr Drew's knowledge and consent, recorded by counsel. Mr Drew refers to alleged conversations with the respondent over a period of years regarding money matters and investments.

57 Two particular investment possibilities are said by Mr Drew to have been raised by the respondent with him, one involving a university in Russia and the other an enhancement of solar heating technology. The interviewer asked him whether the respondent had spoken of "private placement". The reply was:

"I couldn't recall. I think that it was that structure but unless I've got those details ..."

58 Mr Drew was then asked about his understanding of "private placement" and gave an answer that did not obviously encompass the kind of investment that was the subject of the proceedings before the primary judge.

59 Nothing before the Court indicates when Mr Drew was interviewed. It is significant, however, that, while the appellant says in his affidavit that Mr Drew contacted him "in or about April 2012", the transcript of the interview attributes to Mr Drew a statement that it was "maybe four or five months ago" that he had learned of the appellant's position from a mutual friend.

60 The evidence proposed to be led from the proposed new witnesses other than Mr Alexiou, Dr Phillips and Mr Drew concerns matters that might tend to impugn the respondent's credibility and to suggest that he played a role in "scams" involving importuning of persons other than the appellant in relation to "private placement investment" in ways that the appellant says were similar to the circumstances involving him. In that way, the evidence of those witnesses, if it can be (and is) put into admissible form, is potentially of relevance to issues that were before the primary judge. Mr Drew's account is not obviously related to the particular kind of "private placement investment".

61 But, as the appellant acknowledges in his affidavit of 30 April 2012, a large part of the material - in, particular, the statements of Mr Petroulias, Mr Daley and Ms Bakis and the USB stick on which the clandestinely recorded conversation was stored - was in his hands before the end of October 2011. In addition, he had been informed by late November 2011 of information that Ms Richards and Professor Richards could give and his then solicitor had spoken to them and could no doubt have given on affidavit an account of the evidence that might be expected from them. Also, Ms Richards' statutory declaration of 11 December 2011 was, the appellant says, received by him on or about that date. His counsel used it in court the following day. The statements of Professor Richards and Mr Buck and the second statement of Ms Richards are said by the appellant to have been received by him after February 2012.

62 In these circumstances, it seems quite clear that the appellant had at his disposal well in advance of the 12 December 2012 hearing before Giles JA the statements of Petroulias, Daley and Bakis, the information that Petroulias had given him orally, the information that he and his solicitor had received through speaking to Ms Richards and Professor Richards and the means of access to the recording on the USB stick. He did not then have the somewhat peripheral (in the sense of not adding anything really new) statements of Professor Richards and Mr Buck and Ms Richards' second statement.

63 All the documents and pieces of information that the appellant had in advance of 12 December 2012 were in the possession of the appellant's then solicitor who was acting for him in relation to his appeal. The appellant sought the advice of the solicitor. The advice was, he says, that the material could not be used or would not be of assistance. The rationale for such a view is not explained but, as I have said, serious questions of admissibility must be seen as having existed in relation to much of it, even if it could ultimately be put into proper form.

64 The appellant's notice of appeal dated 18 August 2011 identifies in a schedule the further evidence on which the appellant wishes to rely upon appeal. None of the items discussed above is mentioned in that schedule. It is concerned mainly with Sherwood and Collett.

65 The appellant's then solicitor affirmed an affidavit of 7 December 2011 for the purposes of the hearing before Giles JA on 12 December 2011. The affidavit was read on the application. In that affidavit, the solicitor detailed steps that had been taken to obtain the evidence referred to in the schedule to the notice to appeal (that is, principally the Sherwood/Collett evidence). Several difficulties were identified, particularly those arising from privilege claims in respect of subpoenaed documents. Significantly, the solicitor annexed to the affidavit a proposed amended notice of appeal in which the schedule was expanded to cover new categories of proposed further evidence; but none of the items of evidence now in contention was added. None of the items now in contention of which the solicitor then had actual knowledge (being, in substance, all of them) was put forward in the affidavit as something on which the appellant wished to rely.

66 I turn now to the transcript of the hearing before Giles JA on 12 December 2011 and, in particular, the submissions of counsel for the appellant regarding further evidence. Counsel made it clear that the objective, on appeal, would be to show that the respondent was well aware of the fraudulent nature of the "private placement investment" that the appellant undertook and that, contrary to the assessment of the primary judge, the respondent was not merely some form of unwitting conduit through which O'Dowd operated. Sherwood and Collett, counsel said, had been involved in like schemes and the evidence concerning them would support the thesis that the respondent was not an unwitting conduit. An affidavit of the appellant concerning Sherwood and Collett was read. Counsel also tendered the first four paragraphs of Ms Richards' statutory declaration of 11 December 2011 on the footing that they contained "evidence which supports the proposition of knowledge of Mr Bablis of a critical matter that was the basis of one of his Honour's findings" - presumably the finding about the respondent's status or role qua O'Dowd.

67 In his judgment, Giles JA referred to the sole ground of appeal as turning on "what is described as fresh evidence". He then referred to the material that the appellant would seek leave to adduce in respect of Sherwood and Collett and attempts to obtain documents through subpoena. There was no specific reference to the tendered paragraphs of Ms Richards' statutory declaration. His Honour said at [7]:

"The prospects of leave to adduce the fresh evidence, or perhaps it may turn out to be that it should properly be described as further evidence, are not great."

68 Giles JA then said that, with the crucial subpoena questions being unresolved, it was premature to decide the summary dismissal application and that that application should be adjourned. He next turned to the security for costs application, noting that "[t]he strength of the appeal is a material consideration in deciding whether or not there are special circumstances within Pt 51 r 50 of the UCPR". He continued at [9]:

"The appellant is impecunious. There is evidence that he has not paid an amount of costs ordered in favour of a third party in the course of the trial, and that monies are outstanding to the solicitors acting for him at trial. Mere impecuniosity will ordinarily not constitute special circumstances so as to justify an order for security for costs, but as well as these additional factors to his financial position there is evidence that the appellant has not complied with a number of directions previously given in the appeal. The non-compliance is not explained by the difficulty he has encountered in obtaining through the subpoenaed documents which might enable him to put before the Court the evidence he wishes to have admitted on appeal. Given the view I take of the likely weakness of the appeal and these further matters, it seems to me that there are special circumstances."

69 Giles JA thus took into account, in deciding the question of security, the apparent strength of the case on appeal. He judged it to be not great. That assessment was made on the whole of the material before him. This included only a small part of the material to which the Court was taken on the present application. But the whole of the substance of that material was then available to the appellant. It was, it appears, a deliberate forensic choice of the appellant (or his then solicitors) that caused that material not to be included as part of the new evidence proposed to be adduced on appeal.

70 Having regard to the matters to which I have referred, the Court should not vary or discharge any part of the orders made by Giles JA. Circumstances have not changed in any material way. The appellant may now have more detailed information, but he knew quite enough before 12 December 2011 about the matters he now presses to enable him to deploy those matters in support of the contention that he had a viable and fairly arguable case on appeal and to attempt thereby to counter the submission (that the judge ultimately accepted) that the case was one of "likely weakness". No doubt advised by his then solicitors, he must be seen to have made a conscious and informed decision not to seek to deploy those matters in that way. No basis has been shown on which it would be just to allow the appellant to do so now. And the considerations to which ss 56 to 60 of the Civil Procedure Act give prominence would not be served by that course; see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.

71 The appropriate outcome, in my opinion, is to grant leave for the filing of the amended notice of motion handed up by counsel for the appellant on 30 April 2012 and to dismiss that notice of motion. The result then is that the orders made by Giles JA on 12 December 2011 continue, but as varied or modified by the orders of Young JA of 5 April 2012 which, as to deadline, were subsequently varied, including on 30 April 2012. I would also extend the deadline for the provision of the balance of $95,000 to expire seven days from the making of these orders, thus giving the appellant one last opportunity to preserve his appeal.

72 Hence, the orders I propose are:

1. Grant leave to the appellant to file the amended notice of motion handed up in Court on 30 April 2012.

2. Dismiss the amended notice of motion.

3. Fix 15 May 2012 as the date by which $95,000 is to be paid into Court pursuant to Order 2 of the orders of 28 February 2012 (as subsequently varied as to the deadline for payment) and order that that Order 2 as so varied be further varied accordingly.

4. Order that the appellant pay the respondent's costs of the amended notice of motion.

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Decision last updated: 08 May 2012