No: (P)NSD324/2009Federal Court of Australia District Registry: New South Wales Division: General
CHARLES HODGES & MARK HODGES AS TRUSTEES OF THE CHARLES HODGES SUPERANNUATION FUND Plaintiff ORDER JUDGE: Justice Perram DATE OF ORDER: 19 March 2014 WHERE MADE: Sydney THE COURT ORDERS THAT: In these orders:
•“the Applicants” refers to the applicants in NSD 324 of 2009;
•“Wellington” refers to the applicant in NSD 557 of 2013;
•“KPMG” refers to the first and second respondents in both NSD 324 of 2009 and NSD 557 of 2013;
•“OPI Subpoenas” means the subpoenas issued by the Applicants on the receiver of OPI Pacific Finance Limited on 8 January 2014;
•"Kyling" refers to the tenth respondent in NSD 324 of 2009; and
•"Price" refers to the eleventh respondent in NSD 324 of 2009. Appeal
1.The Applicants to serve a Notice of Appeal of the orders of Perram J of 17 March 2013 on all parties by 28 March 2014.
2.The Applicants to submit agreed drafts of a Part A and Part B Appeal Book Index to the Registrar by 4 April 2014.
3.Contingent upon the timely return by the Registrar, the Applicants to file and serve Part A and Part B of the Appeal Book by 18 April 2014.
4.The Applicants to file and serve an outline of submissions and a chronology by21 April 2014.
5.The Respondents to file and serve an outline of submissions and a chronology, and a list of all documents they require to be included in Part C of the Appeal Book by28 April 2014.
6.The Applicants to file and serve any submissions in reply by 5 May 2014.
7.The Applicants to file and serve Part C of the Appeal book by 12 May 2014.
8.The Applicants to file and serve any list of authorities by 13 May 2014.
9.The Respondents to file and serve any list of authorities by 14 May 2014.
10.The appeal to be listed for hearing on a date to be fixed after 20 May 2014.
Section 33V Approval of Settlements with Kyling and Price
11.The Applicants and any respondent who wishes to do so to file and (subject to order 12) serve any affidavits in support of the application for Court approval of the discontinuance of the proceedings against Kyling and Price (the Discontinuance Application) on or by 11 April 2014.
12.The Applicants and any respondent who wishes to do so have leave to file any confidential affidavit in support of the Discontinuance Application which will be the subject of an application for an order under section 33ZF of the Act delivering to the Court in a sealed envelope marked “Confidential Affidavit – Not to be Opened Except by Direction of a Judge of the Court”.
13.Any person (including any Group Member) who wishes to oppose the making of orders in accordance with the Discontinuance Application must file and serve on the solicitors for the Applicants any affidavit evidence relied upon in opposition together with a written outline of the grounds for opposing the proposed settlement by no later than 4.00 pm on 1 May 2014.
14.The solicitors for the Applicants must provide to the parties a copy of any affidavit and outline served on it pursuant to order 13 by no later than 4:00 pm on 2 May 2014. 15.The Discontinuance Application be adjourned for hearing by a Judge of the Court tobe advised (other than the Docket Judge) and on a date to be advised.
16.Liberty to apply on 24 hours’ notice to the Judge of the Court assigned to hear the Discontinuance Application or (until such time as that Judge is assigned) to the District Registrar.
Opt Out Notices
17.By close of business on 20 March 2014, KPMG to provide the parties and Justice Perram's chambers a draft opt out notice dealing with the fluid nature of thegroup claims pending the Full Court’s determination and the Discontinuance Application.
18.The Applicants to provide the parties and Justice Perram's chambers any comments on the draft opt out notice by close of business on 21 March 2014.
Wellington Discovery
19.Wellington to provide discovery in accordance with Rule 20.14(1) in three tranches:
a)the first tranche, being discovery of hard copy documents, by 26 March 2014.
b)the second tranche, being discovery of all remaining hard copy documents, by9 April 2014.
c)the third tranche, being discovery of all electronic documents, by 18 April 2014.
20.In relation to any application KPMG intends to bring in relation to Wellington's discovery, the brief procedure is to be dispensed with, and the application be listed for one hour on a date convenient to the parties to be determined in consultation with my associate.
Preparation for Main Hearing
21.By 21 March 2014, the Applicants and Wellington to seek leave to issue any subpoenas to Pricewaterhouse Coopers and Korda Mentha.
22.All subpoenas in this matter are to be returnable before Justice Perram at 9:00 am on Wednesdays.
23.By 16 April 2014, the Applicants and Wellington are to provide KPMG with details of the areas of expertise of any experts from whom they intend to lead evidence, and an outline of the broad topics that they will be addressing.
24.By 30 April 2014, KPMG is to serve draft Amended Defences to the Applicants’ Further Amended Statement of Claim and Wellington’s Further Amended Statement of Claim, following which:
a)the Applicants will have 14 days to indicate any objection to those draft Amended Defences being filed and served as Amended Defences;
b)if no objection is received, KPMG has leave to file the Amended Defences; and
c)if any objection is indicated, the parties have liberty to apply to the Court for a resolution of this issue. 25.By 14 May 2014, the Applicants and Wellington to file and serve a list of all documentary evidence upon which they propose to rely in chief at trial.
26.By 16 July 2014 KPMG to file and serve all lay evidence and a list of all documentary evidence that it intends to tender at trial.
27.By 20 August 2014 the Applicants and Wellington to file and serve expert evidence and any lay evidence in reply.
28.By 24 September 2014 KPMG to file and serve expert evidence upon which it intends to rely at the trial, either in response or in its case in chief.
29.By 8 October 2014, the Applicants and Wellington to file and serve any expert evidence in reply.
30.Order 4 made by Justice Perram on 17 March be replaced with the following: Upon condition that they pursue the appeal expeditiously, the Applicants be granted leave to appeal from Orders 1 and 3 hereof.
31.The matter to be listed for further directions at 9:00 am on 30 April 2014, regarding: (a)the status of the subpoenas; (b)the hearing of the separate question; and (c)any other matters.
see more on https://www.comcourts.gov.au/file/Federal/P/NSD324/2009/actions
OCV Price at posting:
0.0¢ Sentiment: None Disclosure: Not Held
