Appeal appalls as client goes behind barrister’s back

“Transcript! I must have transcript,” the appeals court president might well have thundered.

When appellant court judges are delivered a white book unfit for a dog’s breakfast and receive material in their chambers on the morning of the hearing that hasn’t been served on the respondent well, tempest can be reliably forecast.

And inevitably in such circumstances, a bench’s collective discontent will most likely rain down upon counsel for the appellant, as it did yesterday in the matter of One T Development Pty Ltd (One T) V Peter Krejci.

One T had come to the NSW Supreme Court of Appeal seeking to overturn the judgment of Justice James Stevenson In the matter of ENA Development Pty Ltd (in liq) [2022] NSWSC 919.

In 2022 his honour had been asked by ENA Development liquidator Krejci to advise on whether he could treat certain trust property as property beneficially owned by the company.

Krejci had already been appointed receiver of the trust assets and on July 11, 2022 Justice James ruled that the BRI Ferrier partner would be justified and acting reasonably in treating certain assets of ENA – including a property on Parramatta Road at Homebush – as assets to which that company is beneficially entitled.

Krejci’s application for judicial advice was opposed by One T. One T purported to be the legitimate trustee of two trusts of which ENA had also been held to be trustee.

In his judgment Justice Stevenson articulated concerns he held about One T claims, based in part on the performance in cross examination of One T’s director, Ronald Jemmott.

“Mr Jemmott gave his evidence by Audio Visual Link. The impression I gained was that Mr Jemmott has little, if any, personal knowledge of the affairs of One T Development about which he was purporting to give evidence,” the judge said.

Yesterday the farce continued. One time ENA director and litigant-in-chief Robert Sebie sought to introduce a new notice of motion.

President of the appeals court Justice Julie Ward sent him packing, seemingly aware that Sebie’s motion was scheduled to come before a different court next Monday.

Simultaneously Krejci and his advisors at ERA Legal have commenced Vexatious Litigant proceedings against Sebie and others. The only certainty about how this will end is that whatever assets are available for unsecured will likely be entirely depleted by Krejci’s remuneration and ERA’s fees.

After Sebie was sent to the back of the court Justice Ward and her fellow judges Mark Leeming and Anna Mitchelmore refocussed their attention on One T’s counsel University Chambers’ Anthony Rogers.

When Justice Ward informed him about the material sent to the judges’ chambers by Rogers’ client that morning Rogers could only admit that he knew nothing about it.

When quizzed by her honour Krejci’s senior counsel Jeremy Giles confirmed he had only just received a copy.

Eager to extract maximum effect an exuberant Giles quipped that the material was “a non-chronological chronology”.

Turning her attention back to Rogers Justice Ward then asked: “Perhaps you can tell the court what shouldn’t be in the court book?”

Rogers, who’d only just risen to commence his opening, couldn’t and might well have been shell shocked by the critique of the state of the white book.

And if the criticisms hadn’t triggered his internal alarms there’s little doubt the actions of his client in sending the new material without his knowledge would have.

This was blindsiding on a breathtaking scale, but like three hyenas with one leg between them, the judges’ mood only worsened.

What material was there in the white book that pre-dated the ENA proceedings but hadn’t been put before Justice James they demanded? Rogers couldn’t say.

As the pace of the judicial flensing accelerated we’re certain Krejci’s lawyer Blake O’Neill was pissing himself but he had the decency to look appalled. Giles however appeared to be under no such restraint.

Not wanting to be left out of the inquisition Justice Leeming then asked Rogers why the May 9, 2022 originating process and interlocutory application weren’t in the white book.

But no bone Rogers could toss was satisfying this pack and as their discontent grew the judges’ calls for transcript became a clamour.

iNO regrets we couldn’t stay for the resumption of the hearing after lunch, by which time Rogers was expected to have delivered to the court the various materials the judges regarded as necessary for them to hear the appeal.

Hopefully the eminences satiated their hunger if not their tempers during the interval, and Rogers found that transcript.