Australia, June 18 -- New South Wales Land and Environment Court issued text of the following judgement on May 19:
1. By Interlocutory Process filed on 8 May 2025, Mr Domenic Carbone and Ms Angela Carbone sought several orders, which they initially maintained should be made on an ex parte and urgent basis. Those orders included a vacation of orders for production and examination orders that had previously been made by a Registrar and other orders including the stay of the examination orders and orders for production. Those orders were not made, unsurprisingly, on an ex parte basis, but have instead been made returnable in the Corporations List today. The fact that the Interlocutory Process was not filed until 8 May 2025, and was not returnable until today, has the consequence that it has been made returnable on the same day on which the examinations of Mr Carbone and Mrs Carbone were due to commence, but those examinations have now been adjourned to 2:00pm today, and can proceed subject to the determination of this application.
2. Mr Carbone, and presumably Mrs Carbone, rely on a lengthy affidavit of Mr Carbone of some 46 pages and a voluminous exhibit in support of the application, although I was taken to relatively small parts of those documents in respect of the question of an extension of time to bring this application, to which I will refer below. Mr Carbone's first affidavit is so lengthy because it is somewhat repetitive, making a small number of points at great length and largely in inadmissible ways. Mr Carbone there refers to a statutory report issued by the liquidators in June 2021 and contends, in effect, that the liquidators have already determined to bring proceedings against him and his wife, and have been threatening to conduct liquidators' examinations for a considerable period, and previously sought an extension of time to conduct such examinations. He refers to the history of trading by Futurepower Developments Pty Ltd ("Company") and suggests that a co-owner had control over aspects of a project of the Company. He refers to a suggested intention of the liquidator to use the examination summons as a "free kick" or an advantage in contemplated proceedings which appears to be directed to an allegation of abuse of process. He also refers, in paragraph 213, to an issue concerning Mrs Carbone's health, where he refers to a diagnosis in 2018 and a suggestion of "brain fog", on her part and suggests that her position would have been better had public examinations taken place at an earlier point. He also refers to a judgment of Nixon J delivered in 2024, where his Honour referred to evidence then given by Mr Carbone and Mrs Carbone about their health conditions and major surgery which Mrs Carbone required, and the extended period of therapy which was likely to follow such surgery. I bear in mind that, as Mr Rogers who appears for Mr and Mrs Carbone accepts, evidence given in other proceedings and a judgment delivered in other proceedings is not evidence of the fact in these proceedings.
3. I was in turn taken, in this application, to an email sent by Barclays Law Group, of which Mr Carbone is the principal solicitor, to the Registry on 24 April 2025, which it appears was shortly after service of the examination summons and/or orders for production of documents in mid-April 2025, indicating that the online filing system was preventing filing of his notice of appearance, notice of motion and affidavit in support. I assume that the notice of motion there referred to was the Interlocutory Process filed on 8 May 2025 supported by and the affidavit of Mr Carbone dated 2 May 2025. The Court sent an automated email response which recorded that the Online Registry support team continued to experience a large number of inquiries and that had resulted in delayed responses, and that at least seven business days should be allowed for a reply to Mr Carbone's inquiry. The email went on to helpfully point out that, for urgent matters, documents could be lodged in person at the Registry. No step was then taken by Mr and Mrs Carbone to file any application to set aside the examination summons in the Registry, and perhaps more importantly, no step was taken to bring the application to set aside the examination summons before a Corporations Duty Judge, who has been available every business day since mid-April 2025.
4. My attention was also drawn to two medical certificates on which Mr Carbone and Mrs Carbone rely. The first, dated 1 May 2025 in relation to Mrs Carbone, certifies that she attended a medical centre on 1 May 2025 and would be unfit to attend Court from that date until 30 May 2025 due to "high stress levels" from physical and mental triggers and would be attending psychology support. I pause to note that, first, that medical certificate does not refer to recent medical procedures of the kind referred to in Nixon J's earlier judgment, but to a question of stress. Second, it also does not provide any explanation of the manner in which Mrs Carbone's high stress levels were said to be disabling, so as to prevent her complying with a compulsory order made by the Court for attendance at a liquidator's examination. The second medical certificate dated 24 April 2025 and issued by Professor Lau, a surgeon, in respect of Mr Carbone in turn indicated, without further explanation, that Mr Carbone was suffering from "surgery and post-operative care" and would be unable to attend Court from 11 April 2025 until 20 June 2025. That certificate is also wholly inadequate so far as it discloses no reasoning process to indicate the basis of the conclusion, or what information had been provided to Professor Lau in order to allow him to reach that conclusion, what steps he had taken to test that information, or what he had assumed as to the nature of the proceedings in order to reach a conclusion that Mr Carbone was unable to attend them. It is, with respect, no more than an ipse dixit by Professor Lau, who makes no attempt to explain why the view he asserts should be accepted. Neither medical certificate complies with the requirements under the Expert Witness Code of Conduct in Schedule 7 of the UCPR for expert evidence led in this Court, and neither doctor indicates that they had made such inquiries as were necessary to lead expert evidence before the Court.
*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197714b680b668d70d84bff8)
Disclaimer: Curated by HT Syndication.
